HomeMy WebLinkAbout20041214 RESOLUTION
RE: APPROVE ENERGY AND MINERAL IMPACT GRANT LOAN AGREEMENT AND
AUTHORIZE CHAIR TO SIGN - FORT LUPTON HOUSING PARTNERS, LP
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Energy and Mineral Impact Grant
Loan Agreement between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Greeley/Weld County Housing
Authority, and Fort Lupton Housing Partners, LP, commencing March 23, 2004 and ending April
1, 2021, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a
copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, ex-officio Housing Authority Board, that the Energy and Mineral Impact
Grant Loan Agreement between the County of Weld, State of Colorado, by and through the
Board of County Commissioners of Weld County, on behalf of the Greeley/Weld County Housing
Authority, and Fort Lupton Housing Partners, LP be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 26th day of April, A.D., 2004, nunc pro tunc March 23, 2004.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLO ADO
ATTEST: Mill
� - c E
" lid% Robert D. Masden, Chair
Weld County Clerk to the £.ar e
186 I "��` illiam H. Grke, Pro-Tem
BY:
Deputy Clerk to the B.
M. . ile
AP D AS •
David E. Long
unty Attor ayet ideleg /
5�5 Glenn Vaad
Date of signature:
2004-1214
HA0024
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ENERGY AND MINERAL IMPACT GRANT LOAN AGREEMENT /"•.,,
1 �y
THIS LOAN AGREEMENT is made this )?rte day of "1"7- A , 2004, by and ft'.
between the Weld County, Colorado, on behalf of the Weld County Housing Authority, P.O. Box �?
130, Greeley, Colorado 80632, hereinafter referred to as "County," and Fort Lupton Housing C
Partners, L.P., 7301 Mission Road, Suite 212, Prairie Village, Kansas 66208, hereinafter referred
to as "FLHP."
WITNESSETH:
WHEREAS, by Resolution of its Board of County Commissioners, County entered into a
Grant Contract for the Energy and Mineral Impact Assistance Program, hereinafter referred to as
"Contract," a copy of which is attached hereto, wherein County agreed to be the "pass-through"
for funds for various projects, in the sum of$300,000 to be used by FLHP for the construction of
the Prairie Sun Apartments, a 50-unit low-income rental facility to be located in Fort Lupton,
Colorado, and
WHEREAS, the Contract requires County to enter into a loan contract with FLHP
consistent with the requirements of the Contract, and
WHEREAS, this Loan Agreement is intended by the parties to comply with said
requirement of the Contract.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
1. TERM: The term of this Loan Agreement shall be from the date stated
above to and until April 1, 2021, or until the loan set forth in Paragraph 2.,
below, is paid in full.
2. LOAN: Contract states that County has been awarded a$300,000 grant for the
construction of the Prairie Sun Apartments, a 50-unit low-income rental
facility to be located in Fort Lupton, Colorado. County agrees to loan FLHP the
$300,000 for said construction. Said loan shall be repaid to County over the
course of the term of the loan, at an interest rate of 3% per annum, beginning
April 1, 2004, payable according to the terms of a Promissory Note executed by
FLHP commensurate with the date of this Agreement. To secure said loan, FLHP
agrees to execute a note and deed of trust in favor of County.
3. TERMS, REQUIREMENTS AND DUTIES SET FORTH IN CONTRACT:
FLHP agrees, as "Contractor" and in place of County, to be bound by all
of the terms and to comply with and assume all of the requirements and duties set
forth in Contract and the exhibits attached thereto.
Page 1 of 3 Pages PAR 2 5 20D4
H`"!:" A.11904ES
2004-1214
4. NO DONATION OR GRANT TO, OR IN AID OF, FLHP: The parties agree that
the loan referred to in Paragraph 2., above, is not a donation or grant to, or
in aid of, FLHP, in violation of Colorado Constitution Article 11, Section 2.
5. INDEMNIFICATION: County, the Board of Commissioners of Weld County,
and the Weld County Housing Authority, their officers and employees, shall not
be held liable for any injuries or damages caused by negligent acts or omissions of
FLHP or its employees, volunteers, or agents performing the responsibilities and
duties described in Contract and/or this Loan Agreement. FLHP shall indemnify,
defend, and hold harmless County, the Board of Commissioners of Weld County,
and the Weld County Housing Authority, their officers and employees, for any
loss occasioned by or resulting from the performance of this Agreement by FLHP,
its employees, volunteers, and agents.
6. NO WAIVER OF IMMUNITIES: No portion of this Loan Agreement shall be
deemed to constitute a waiver of any immunities which the parties or their officers
or employees may possess, nor shall any portion of this Loan Agreement be
deemed to have created a duty of care with respect to any person not a party.
7. SEVERABILITY: If any section, subsection, paragraph, sentence, clause, or
phrase of this Loan Agreement is for any reason held or decided to be invalid or
unconstitutional, such decision shall not affect the validity of the remaining
portions thereof. Parties hereto declare that they would have entered into this Loan
Agreement and each and every section, subsection, paragraph, sentence, clause,
and phrase thereof irrespective of the fact that any one or more sections,
subsections, paragraphs, clauses, or phrases herein might be declared
unconstitutional or invalid, for any reason.
8. AUDIT: FLHP agrees that at any time during the term of this Loan
Agreement, County or the State of Colorado may conduct a performance or
financial audit of FLHP records pertaining to the construction project and FLHP's
obligation under Contract and/or this Loan Agreement, provided that such audit is
conducted at reasonable time and in reasonable manner. FLHP shall be
responsible for remedying any audit findings which are detected.
Page 2 of 3 Pages
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day
and year first above written.
SEAL: FORT LUPTON HOUSING
PARTNERS, L.P.
Attest f Y
By: rll d l 0,or, )„j Garrison L. Hassenflu, President
ATTEST: / e�i �� WELD COUNTY, COLORADO, ON
Weld County er to BEHALF OF THE WELD COUNTY
f' HOUSING AUTHORITY
Deputy Clerk to the Bo. a`'' o � Robert D. Masden, Chairman APR 2 6 2004
Page 3 of 3 Pages
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PROMISSORY NOTE
Prairie Sun Apartments
$300,000 March 23, 2004
FOR VALUE RECEIVED, Fort Lupton Housing Partners, L.P., ("Borrower"), promises to pay to
the order of the Weld County Housing Authority ("Payee")the principal sum of$300,000,
together with interest on the outstanding unpaid balance of such principal amount at the annual
rate, compounded annually, equal to three percent(3%) from the date hereof until paid. Interest
shall be payable in arrears at the maturity of this Note and shall be calculated on the basis of a
365-day year and the actual number of days elapsed. Principal and accrued interest shall be due
on April 1, 2021.
Borrower shall make payments within 90 days after the end of each calendar year in an amount
equal to twenty-five percent (25%) of the excess cash flow received by Borrower for that year
from the property (the "Property") encumbered by the Deed of Trust (defined below) securing
this Note; provided, that payments shall be made only to the extent permitted by the loan
documents for any promissory note of the Borrower secured by a mortgage having priority over
the Deed of Trust. For this purpose, excess cash flow from the property shall mean the Net Cash
Flow (as defined in the Amended and Restated Agreement of Borrower)< subject to any required
priority payments from such Net Cash Flow.
All payments of principal and interest hereof shall be made at the Payee's offices at 915 10`h
street, Greeley, CO 80631, or at such other place as Payee shall have designated to Borrower in
writing. All payments received hereunder shall be applied first to accrued interest as of the date
of payment and then to outstanding principal balance of this Note.
Overdue principal, whether caused by acceleration of maturity or otherwise, shall bear interest at
a rate equal to twelve percent (12%) per annum from the date due until paid, and shall be payable
monthly or, at the option of the holder hereof, on demand.
This Note may be repaid, either in whole or in part, at any time without premium or penalty and
without the consent of the holder hereof.
It is not intended hereby to charge interest at a rate in excess of the maximum rate of interest that
Payee may charge to Borrower under applicable usury and other laws, but if, notwithstanding,
interest in excess of such rate shall be paid hereunder, the excess shall be retained by the holder
of this Note as additional cash collateral for the payment of the Loan, unless such retention is not
permitted by law, in which case the interest rate on this Note shall be adjusted to the maximum
permitted under applicable law during the period or periods that the interest rate otherwise
provided herein would exceed such rate.
This Note is secured by, and the holder of this Note is entitled to the benefits of, at Deed of Trust
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(the "Deed of Trust"), of even date herewith, given by the Borrower for the benefit of Payee to
secure this Note. Reference is made to the Deed of Trust for a description of the Property
covered thereby and the rights, remedies and obligations of the holder hereof in respect thereto.
The original principal amount of this Note represents and equals the original principal amount
(but not the payment or other terms) of a grant made by the State of Colorado, for the use and
benefit of the Department of Local Affairs, with respect to the property encumbered by the Deed
of Trust. Borrower covenants and agrees to perform the covenants and agreements applicable
under such grant. If Payee fails to take any action required to comply with the terms of such
grant, Borrower shall have the right to take any such action, and Borrower shall be entitled to full
credit for any payments made to any granting organization.
Time is of the essence hereof. In the event of(a) any default in any payment of the principal of
or interest on this Note when due and payable, or(b) any default or event of default under the
provisions of the Deed of Trust, that is not cured within any applicable cure periods set forth
therein, then the whole principal sum of this Note plus accrued interest and all other obligations
of Borrower to holder, direct or indirect, absolute or contingent, now existing or hereafter arising,
shall, at the option of the holder of the Note, become immediately due and payable without notice
or remedies provided herein and in the Deed of Trust, as they may be amended, modified or
supplanted from time to time, and under applicable law.
If Borrower fails to pay any amount due under this Note and Payee has to take any action to
collect the amount due or to exercise its rights under the Deed of Trust, including, without
limitation, retaining attorneys for collection of this Note, or if any suit or proceeding is brought
for the recovery of all or any part of or for protection of the indebtedness or to foreclose the Deed
of Trust, then Borrower agrees to pay on demand all costs and expenses of any such action to
collect, suit or proceeding, or any appeal of any such suit or proceeding, incurred by Payee,
including, but not limited to, the fees and disbursements of Payee's attorneys and their staffs.
Borrower waives presentment, notice of dishonor, notice of accelerations and and assents to any
extension of time with respect to any payments due under this Note, to any substitution or release
of collateral and to the addition or release of any party. No waiver of any payment or other right
under this Note shall operate as a waiver of any other payment or right.
If any provision of this Note shall be held invalid, illegal or unenforceable in any jurisdiction, the
validity, legality or enforceability of any defective provisions shall not be in any way affected or
impaired in any other jurisdiction.
No delay or failure of the holder of the Note in the exercise of any right or remedy provided for
hereunder shall be deemed a waiver of such right by the holder hereof, and no exercise of any
right or remedy shall be deemed a waiver of any other right or remedy that the holder may have.
Neither Borrower, any partner, or affiliate of the Borrower or any third party shall have any
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personal liability for any amounts owing under this Note, and in the event of any default under
this Note, the Payee shall look solely to the property covered by the Deed of Trust and shall not
be entitled to seek any deficiency from Borrower, or any partner, or affiliate of Borrower, or any
third person.
Payee shall not sell or convey any interest in the Note to, or include the note in any pool of loans
to be sold or transferred to, Federal National Mortgage Association or Freddie Mac.
All notices to Borrower given hereunder shall be in writing, shall be hand delivered or sent by
overnight courier or by certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
Fort Lupton Housing Partners, L.P.
7301 Mission Road, Suite 212
Prairie Village, Kansas 66208
Any such notice shall be deemed effective when hand delivered, or one day after timely delivery
to an overnight courier for next day delivery to Borrower(as evidence by a receipt from the
overnight courier), or three days after notice is deposited with the U.S. Postal Service.
At the option of the holder hereof, an action may be brought to enforce this Note in the District
Court in and for Weld County, State of Colorado, or in any other court in which venue and
jurisdiction are proper. Borrower and all signers or endorsers hereof consent to venue and
jurisdiction in the District Court in and for Weld County, Colorado, and to service of process
under Sections 13-1-124(1)(a) and 13-1-125, Colorado Revised Statutes, in any action
commenced to enforce this Note.
This Note is to be governed by and construed according to the laws of the State of Colorado.
FORT LUPTON HOUSING
PARTNERS, L.P.
Garrison L. Hassenflu, President
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DEED OF TRUST TO THE PUBLIC TRUSTEE,
SECURITY AGREEMENT AND FINANCING STATEMENT
1. Grantor: Fort Lupton Housing Partners, L.P.
7301 Mission Road, Suite 212
Prairie Village, Kansas 66208
2. Beneficiary: Weld County Housing Authority
P.O. Box 130
Greeley, Colorado 80632
3. Trustee: The Public Trustee of the County of Weld, Colorado
4. Property: The real property located in Fort Lupton,Colorado,and described on Exhibit
"A" attached hereto, together with all buildings, improvements, fixtures,
easements,minerals,crops,landscaping features,water,ditch,reservoir,well
or spring rights,groundwater rights,rents,issues and profits,condemnations
awards and insurance proceeds, however evidenced, and all appurtenances
appertaining to or used in connection with the real property.
5. Obligations:
a. All indebtedness evidenced and created by the Promissory Note(the"Note"), dated
March 23, 2004, from grantor, payable to the order of Beneficiary, which Note
evidences a $300,000 loan payable in accordance with the terms and provisions of
the Note,and all renewals,extensions,modifications,amendments and restatements
thereof and substitutions therefor;
b. Future advances made by Lender under this Note plus interest thereon; and
c. All other indebtedness due under the Note, this Deed of Trust, and/or any other
document, instrument or agreement evidencing, securing or governing the loan
evidenced by the Note (the Note, this Deed of Trust and all such other documents,
instruments and agreements and all amendments, replacements, extensions and
renewals of any of the foregoing are hereinafter collectively referred to as the"Loan
Documents").
6. Grant:As security for the Obligations,Grantor hereby grants,bargains,sells,mortgages and
conveys the Property to the Trustee in trust with the power of sale for the use and benefit of
Beneficiary. As additional security for the Obligations, Grantor hereby grants Beneficiary
a security interest in all personal property and fixtures now and hereafter located upon or
used in connection with the Property, including, without limitation, the personal property,
fixtures and other collateral(collectively,the"Collateral")described in Exhibit"B,"attached
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hereto and incorporated herein by this reference. This Deed of Trust constitutes a security
agreement under the Uniform Commercial Code in effect in the State of Colorado (the
"Code").
7. Representations: Grantor warrants the title to the Property and the Collateral subject only to
the matters set out on Exhibit"C"(the "Permitted Encumbrances"). Grantor warrants that
the person signing this Deed of Trust on behalf of Grantor has been fully and properly
authorized to do so and that this Deed of Trust constitutes the valid,binding and enforceable
obligation of the Grantor.
8. Covenants of the Grantor: Grantor covenants and agrees: (a) to pay and satisfy all the
Obligations on or before the date the Obligations are due and to comply with and perform
according to their terms all of the covenants and agreements contained in this Deed of Trust,
the Note and any other Loan Documents; (b) to pay and satisfy when due all general and
special taxes and general and special assessments and other claims or encumbrances in
connection with or affecting the Property and/or Collateral; (c)to obtain and maintain at all
times policies of insurance in an amount equal to the full replacement cost of the Collateral
and all improvements on the Property, insuring against all risk of loss,damage,destruction,
theft or any other casualty, and such other hazard or similar insurance as Beneficiary may
reasonably require, and to obtain and maintain comprehensive general liability insurance
covering the Property and Grantor in an amount satisfactory to Beneficiary, all of the
foregoing with such policy provisions and with such companies as may be reasonably
approved by Beneficiary, with Beneficiary named as a loss payee (with respect to property
insurance)and as an additional insured(with respect to liability insurance)and providing that
any such policy will not be cancelled without 30 days' prior written notice from the insurer
to Beneficiary, and to assign and deliver original or certified copies of all policies of
insurance to Beneficiary; (d) to keep the Collateral, the Property and any improvements
which may at any time be on the Property in good condition and repair and not to commit or
suffer any material waste; (e) not to commit or suffer destruction or removal of all laws,
ordinances,rules and regulations of governmental authorities governing or applicable to the
Property or its use; (g) keep the Property and the Collateral free and clear of all material
liens,judgements or other encumbrances other than the Permitted Encumbrances;(h)and to
appear in and defend any action or proceeding purporting to affect the Property and/or
Collateral.
9. Environmental Covenant:(a)To the best of Grantor's knowledge the use of the Property will
not result in Contamination or threatened Contamination. (b) Grantor agrees to defend,
indemnify and hold harmless Beneficiary for,from,and against,and to reimburse Beneficiary
with respect to any and all claims, actions, costs and expenses whatsoever (including,
without limitation, attorneys' fees and expenses and costs reasonably incurred), known or
unknown,asserted against or incurred by Beneficiary at any time by reason of or arising out
of or relating to any actual or alleged violation of any existing or future environmental law
or regulation thereunder or actual or threatened Contamination on or under the Property,
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whether or not such Contamination was in violation of any environmental statute or
regulation thereunder. This indemnity shall not apply as to obligations arising or occurring
at a time when Beneficiary controls the general partner of Grantor,and shall last indefinitely
and is specifically intended to survive the release of this Deed of Trust; (c) The term
Contamination or Contaminated shall mean the presence of solid or hazardous waste,
hazardous substances,pollutants or contaminants,petroleum,toxic or hazardous constituents,
or similar materials, as such terms are defined under any federal or state or local statute,
whether currently or subsequently enacted, or regulation thereunder or under common law.
1O. Transfer:If Grantor shall sell,contract to sell,convey,transfer or otherwise dispose of all or
any part of either the Property, the Collateral or both without the prior written consent of
Beneficiary, all Obligations shall be immediately due and payable at the election of the
Beneficiary. Beneficiary may require the transferee to assume the Obligations as a condition
to its consent to the transfer and impose any other conditions permitted by law.
11. Events of Default: The occurance of any of the following shall constitute an "event of
default" hereunder: (a) Grantor's failure to pay any of the Obligations when due, which
failure is not cured within 10 days after notice thereof from Beneficiary to Grantor; (b)
Grantor's failure to perform or observe any other covenant, agreement, duty, or obligation
contained in this Deed of Trust,which failure is not cured within 3O days after notice thereof
from Beneficiary to Grantor;(c)any warranty,representation or statement of Grantor in this
Deed of Trust, or otherwise made or furnished to Beneficiary by or on behalf of Grantor,
proves to have been false in any material respect when made or furnished; or (d) the
occurrence of any default or event of default(however defined)under the Note or any of the
other Loan Documents;provided,that none of the events described in clauses(b)through(d)
above shall constitutes an event of default if it occurs at a time when the Beneficiary controls
the general partner of the Grantor. If this Deed of Trust is given to secure the Obligations
of a person other than the Grantor, an additional event of default shall be the happening of
any of the above events or conditions to, by or with respect to such other person.
12. Remedies Upon Default:Upon the occurrence of any event of default,Beneficiary shall have
the following rights and remedies which shall have the following rights and remedies which
shall be cumulative and which may be exercised with or without notice,and which may be
exercised separately, independently, or concurrently and more than once and in any order,
and without any election of remedies to be deemed made, and without affecting the right of
Beneficiary to exercise any other remedy hereunder or which beneficiary may have in law,
and without regard to other remedies then,theretofore or thereafter pursued or being pursued:
(a) to declare any or all of the Obligations immediately due and payable; (b) to take
immediate possession,management and control of the Property and to lease,operate,repair
and maintain the same at the expense of Grantor and to perform such acts thereon or in
connection therewith as Beneficiary may deem necessary or desirable; (c) to collect and
receive any and all rents, issues and profits from the Property and to apply the same to the
Obligations or to the repair or maintenance of the Property, or both; (d) to apply for and
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obtain, ex parte and without notice,the appointment of a receiver for the Property or of the
rents,issues and profits thereof,or both,and to have such receivers appointed as a matter of
right without regard to the solvency of any person or the adequacy of any security or the
existence of waste with Grantor hereby specifically waiving any right to hearing or notice of
hearing prior to the appointment of a receiver, and to have sums received by such receivers,
after deducting and paying costs and expenses of such receiverships, including attorneys'
fees of Beneficiary,applied to the Obligations in such manner and order as Beneficiary may
request; (e) to foreclose the Deed of Trust through the Trustee or through the courts as the
Beneficiary may desire and to become the purchaser of the Property at any foreclosure sale;
(f) with respect to any portion of the Collateral subject to the Code, Beneficiary shall have
the remedies of a secured party under the Code, including, without limitation, the rights to
immediate and exclusive possession of the Collateral or any part thereof; (g) to clean up
Contamination at the expense of the Grantor. If foreclosure is made through the Trustee,
such foreclosure shall be conducted in the manner provided by the laws of the State of
Colorado. Upon the occurrence of any event of default, all amounts owing under the Note
this Deed of Trust,and/or any of the other Loan Documents shall bear interest at the default
rate of interest provided for in the Note from the due date until paid.
The proceeds of the foreclosure sale shall first be applied to (a) reimburse Beneficiary for
reasonable costs and expenses of foreclosure and attorneys' fees, (b) to retire obligations
secured by liens having priority over this Deed of Trust, and(c)the balance of the proceeds
shall be paid first to Beneficiary to pay the Obligations, with the surplus, if any, to be paid
to the owner of the Property on the date of the foreclosure sale.
13. Miscellaneous:(a)This Deed of Trust constitutes a fixture filing. (b)This Deed of Trust and
each of its provisions shall be binding upon the heirs, personal representatives, successors
and assigns of Grantor and shall inure to the benefit of the Trustee,the Beneficiary and her
and its successors and assigns. (c)This Deed of Trust may be amended or modified only by
an instrument in writing signed by the party charged with such amendment or waiver. (d)
The terms "Grantor," "Beneficiary," "Trustee," "Property," "Obligations," "Note," and
"Collateral"are defined in paragraphs 1 through 6,respectively. (e)The Trustee may,upon
production of the Note,duly canceled,and payment of all fees and costs by Grantor,release
this Deed of Trust without further showing as to payment of the Obligations. (f) If there is
more than one Grantor, all of the terms and conditions of this Deed of Trust shall apply to
each of them. (g) The Trustee may release parts of the Property from the lien of this Deed
of Trust upon the request of the Beneficiary without impairing any rights or priority
Beneficiary may have in the remainder of the Property or against Grantor. (h)Failure on the
Beneficiary's part to exercise its rights in the event of any one default shall not constitute a
waiver of such rights in the event of any subsequent default. (i) Any notice and other
communications required or contemplated by this Deed of Trust shall be in writing and shall
be delivered (and deemed give) as set forth in the Note, addressed to the parties at the
respective addresses set forth on page 1 of this Deed of Trust or at such other address as may
be designated in writing from time to time by the Grantor or the Beneficiary. 0) Where the
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Grantor and obligor on the Obligations are no the same: in any provision dealing with the
Property and/or the Collateral,the term"Grantor"means the owner of the Property and the
Collateral, in any provision dealing with the Obligations, the term "obligor" means the
obligor on the Obligations,and where the context so requires,the term"Grantor"means both
the owner of the Property and the obligor on the Obligations. (k)Grantor and any other party
liable for the Obligations hereby consent to venue and jurisdiction in the District Court in and
for Weld County, State of Colorado, or in any other court in which venue and jurisdiction
are proper,and to service of process under Sections 13-1-124(1)(a)and 13-1-125,Colorado
Revised Statutes, in any action commenced in connection with this Deed of Trust or the
enforcement of the Obligations. (1)Time is of the essence of this Deed of Trust in all duties
and Obligations to be performed by Grantor under this Deed of Trust.
GRANTOR:
FORT LUPTON HOUSING
PARTNERS, L.P.
Garrison L. Hassenflu, President
/-t/an sea 5
STATE OF no )
CountyofWetrt hnsoi ) ss.
)
The foregoing instrument was acknowledged before me this,, day of` )1Arc 4 ,
2004, by Garrison L. Hassenflu, President, Fort Lupton Housing Partners, L.P.
Witness my hand and official seal this a3'-`tday of 7/44 -c_ , A.D., 2004
My commission expires: f-.22_ roc. U
FF L 5
_Er.,r L ^�:.-1 N .
5
EXHIBIT "A"
Real Property
LOT 1, MOUNTAINVIEW SUBDIVISION FILING 2, CITY OF FORT LUPTON,
COUNTY OF WELD, STATE OF COLORADO, ACCORDING TO PLAT RECORDED
FEBRUARY 13, 2004 AT RECEPTION NO.3154053
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EXHIBIT "B"
Collateral Description
All of Grantor's right, title and interest now owned or hereafter acquired in the to the following:
(a) All personal property of whatever nature for use at the Property.
(b) All cash and non-cash proceeds or products from the sale or other disposition of the
collateral described in paragraph (a), above.
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097 SUBORDINATION AND STANDSTILL AGREEMENT
THIS SUBORDINATION AND STANDSTILL AGREEMENT ("Agreement") is
effective as of/j9f(yl.GA ?3 , 2004, between and among WELD COUNTY HOUSING
AUTHORITY ("Subordinate Lender"), U.S. BANK NATIONAL ASSOCIATION ("Bank"),
and FORT LUPTON HOUSING PARTNERS, L.P., a Colorado limited partnership
("Borrower").
RECITALS
A. The Borrower is the owner and holder of fee simple title in and to certain real
property (the "Real Property") situated in the County of Weld, Colorado, and described in
Exhibit A attached hereto and by this reference made a part thereof and the owner of certain
personal property, tangible and intangible, associated and used in connection with the Property
("Personalty") and the improvements to be developed on the Property (the "Improvements").
The Real Property, Improvements and the Personalty are sometimes called the "Collateral."
B. The Borrower has made, executed and delivered to Subordinate Lender a
Promissory Note (the "Subordinate Note"), dated as of 771a.4.61" .23XVI, in the principal
amount of $300,000, which Subordinate Note is secured by a deed of trust (the "Subordinate
Deed of Trust") of even date with the Subordinate Note, encumbering the Property, which
Subordinate Deed of Trust was recorded in the office of the Clerk and Recorder of the County
of Weld, Colorado (the "Official Records") on , as Reception No.
311,5O 9U . The Subordinate Note, Subordinate Deed of Trust, and all other documents
securing the Subordinate Note are hereinafter collectively called the "Subordinate Loan
Documents."
C. The Borrower has made, executed and delivered to the Bank a Promissory Note
(the "Bank Note") dated as of)1114a, a3 , 2004, in the principal amount of $1,600,000.00 (the
"Bank Loan") secured by a Deed of Trust, Security Agreement, Financing Statement and
Assignment of Rents and Revenues (the "Bank Deed of Trust") of even date with the Bank
Note, encumbering the Property, which Bank Deed of Trust was recorded in the Official
Records on , as Reception No. .5"1-, Q 3 , prior to the recording of this
Agreement. The Bank Note is personally guaranteed ("Bank Guaranty") by Garrison L.
Hassenflu (the "Guarantor"). The Bank Note, Bank Deed of Trust, Bank Guaranty and all
other documents securing the Bank Note are hereinafter collectively called the "Bank Loan
Documents."
D. The Bank has agreed to make the Bank Loan to the Borrower provided that the
Bank Loan is secured by a first lien on the Collateral and that Subordinate Lender has agreed
to subordinate the rights of the Subordinate Lender under the Subordinate Loan Documents to
the rights of the Bank under the Bank Loan Documents.PJF\59733\468661.2 r 256 Zcl'3-2 S US Bank/Prairie Sun Project
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2 01 13 R66.00 D 0.00 Steve MorenoAGREMENT
NOW, THEREFORE, in consideration of the above recitations, and to induce
the Bank to make the Bank Loan to the Borrower, it is hereby declared, understood and agreed
as follows:
1. Subordination. The Subordinate Loan Documents and any renewals or
extensions thereof and all indebtedness owed thereunder ("Subordinate Indebtedness") shall be
and are hereby subordinated, inferior and subject to the Bank Loan Documents, as the Bank
Loan Documents may be revised, modified, extended or amended from time to time, and all
indebtedness owed thereunder ("Senior Indebtedness"). The Subordinate Lender, for itself and
any subsequent holder of the Subordinate Indebtedness, agrees that the Subordinate
Indebtedness is subordinate and junior in right of payment to the prior payment in full in cash
of all the Senior Indebtedness. No renewal, modification, extension or amendment of the Bank
Loan Documents shall require the consent of the Subordinate Lender to the continued
subordination of the Subordinate Loan Documents and the Subordinate Indebtedness to the
Bank Loan Documents and the Senior Indebtedness.
2. Waiver. Subordinate Lender hereby waives and agrees not to assert or take
advantage of, to the fullest extent permitted by law:
(a) Any right to require the Bank to proceed against the Borrower or any
other person or to proceed against or exhaust any security held by it at any time, or to proceed
with any other remedy in the Bank's power before exercising any right, or remedy under the
Bank Loan Documents;
(b) Until the Senior Indebtedness has been paid in full, any defense that may
arise by reason of the incapacity, lack of authority, death or disability of, or revocation hereof
by any other or others, or the failure of the Bank to file or enforce a claim against the estate
(either in administration, bankruptcy or any other proceedings), or any other or others;
(c) Until the Senior Indebtedness has been paid in full, demand, protest and
notice of any kind, except for such notices required by Title 38 of the Colorado Revised
Statutes, including without limiting the generality of the foregoing, notice of the evidence,
creation or incurring of any new indebtedness, or obligation or of any action or non-action on
the part of the Borrower or the Bank in connection with any obligation or evidence of
indebtedness held by the Bank as collateral or in connection with any indebtedness evidenced
by the Bank Loan.
3. No Representations by Bank. The Bank has not made any warranty or
representation of any kind or nature whatsoever to Subordinate Lender with respect to the
value of the Real Property, or of the Improvements thereof, or the Personalty, or of the
marketability of the Real Property, Improvements or Personalty, or of the ability of the
Borrower to honor its covenants and agreements between the Borrower and the Bank, it being
understood and agreed that Subordinate Lender will make such independent legal and factual
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inquiries and examinations as the Subordinate Lender deems necessary or desirable, and that
entering into this Agreement, the Subordinate Lender will be solely relying on said
independent investigations and inquiries.
4. Representations of Subordinate Lender. Subordinate Lender warrants and
represents that it is the valid holder and owner of the entire interest in and to the Subordinate
Loan Documents.
5. Marshalling. To the fullest extent permitted by law, the Subordinate Lender for
itself and for all who may claim through or under it, waive any and all right to have the
Property and estates comprising the Property or any other Collateral securing the obligations
under the Bank Loan Documents marshalled upon any foreclosure of the liens of the Bank
Loan Documents and agree that any court having jurisdiction to foreclose such liens may order
the Property together with any such other Collateral sold as an entirety or in any parcels or
combinations thereof elected by the Bank.
6. Consent by Bank Required. Without the prior written consent of the Bank,
which may be granted or withheld by the Bank in its sole discretion, until such time as the
Bank Loan is repaid in full in accordance with the Bank Loan Documents, Subordinate Lender
shall not do any of the following:
(a) Independently, or jointly with any other creditor, unless the Bank shall
also join, bring any suit, action or other proceeding against the Borrower, the Guarantor, or
the Property including, but not limited to, any proceeding under any bankruptcy,
reorganization, readjustment of debt, arrangement of debt, receivership, liquidation or
insolvency law or statute of the federal or any state government;
(b) Commence any action or proceeding against the Collateral provided as
security for the Bank Loan Documents, which Collateral is also provided as security for the
Subordinate Loan Documents, including but not by way of limitation, foreclosure, deed-in-lieu
of foreclosure, taking of possession, appointment of a receiver or exercise of any rights under
any assignment of rents or assignments of other rights or assets of the Borrower or any other
action which may interfere with the Borrower's possession, development, operation or
management of the Property; or
(c) Commence or join in any action or proceeding against the Borrower or
Guarantor seeking to establish or collect a monetary liability.
7. Subordinate Lender's Covenants. The Subordinate Lender covenants and agrees
for the benefit of the Bank or any subsequent holder of the Bank Loan Documents, regardless
of the provisions of the Subordinate Loan Documents, as follows:
(a) That the Bank and the Borrower shall have complete freedom to amend,
modify, renew and extend each of the Bank Loan Documents. No amendment or modification
of the Bank Loan Documents, no renewal or extension of time for payment of the Bank Note,
no release or surrender of any obligation or security for the Bank Note, no delay in
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enforcement of any right or obligation under the Bank Loan Documents nor any delay or
omission in exercising any right or power under the Bank Loan Documents, shall in any
manner impair or affect any of the Bank's rights or remedies under the Bank Loan Documents
or affect the priority of the lien of the Bank Loan Documents;
(b) That all rights (including without limitation all assignments of leases and
rents, all assignments of rights and assets of the Borrower and all rights with respect to
insurance proceeds and condemnation awards) given pursuant to the Subordinate Loan
Documents are subordinate to the Bank Loan Documents and the rights of the Bank
thereunder;
(c) That the Subordinate Loan Documents are subject and subordinate to any
and all obligatory or non-obligatory advances made and expenses incurred, with interest
thereon, pursuant to the Bank Note and the Bank Loan Documents and the Subordinate Loan
Documents shall be subordinated to any loan which pays-off and supersedes the indebtedness
evidenced and secured by the Bank Loan Documents, provided such replacement loan is on
terms substantially the same as the terms of the Bank Loan Document;
(d) That Subordinate Lender agrees to release insurance proceeds and
condemnation awards, to be applied to restoration of the Collateral or to the payment of the
Bank Note in the same manner as directed by the Bank under the terms and provisions of the
Bank Loan Documents;
(e) Until the Senior Indebtedness has been paid in full, Subordinate Lender
shall have no right of subrogation and waives any right to enforce any remedy which the Bank
now has or may hereafter have against the Borrower and any benefit of, and any right to
participate in, any security now or hereafter held by the Bank;
(f) That in the event of any default by the Borrower in any of its covenants
or agreements contained in the Subordinate Loan Documents, the Subordinate Lender will give
written notice thereof to the Bank simultaneously with such notice to the Borrower;
(g) That no rents will be collected on behalf of Subordinate Lender as
beneficiary of the Subordinate Loan Documents;
(h) That if the Bank takes possession of the Collateral, either directly or
indirectly through a receiver, pursuant to the terms of the Bank Deed of Trust, all rents, issues
and profits from the Collateral will be applied first to the Senior Indebtedness under the Bank
Loan Documents before application to any Subordinate Indebtedness outstanding under the
Subordinate Loan Documents;
(i) That within ten (10) days after written request from the Bank,
Subordinate Lender shall provide such further evidence as the Bank may reasonably request in
order to carry out the provisions and intent of this Agreement;
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(j) That, in the event the Bank has consented to accept a deed in lieu of
foreclosure of the Bank Deed of Trust following default by the Borrower and provides
Subordinate Lender with written notice of the Bank's intent and the outstanding Senior
Indebtedness due under the Loan ("Bank's Notice"), Subordinate Lender shall within thirty
(30) days after delivery of Bank's Notice, either (i) cause the Collateral to be released from the
Subordinate Loan Documents or (ii) pay to the Bank in certified funds or immediately available
wire transfer the full amount of the outstanding Senior Indebtedness due under the Loan.
Should Subordinate Lender elect to pay off the Bank Loan, the Bank will cooperate with the
Subordinate Lender, at its request, in assigning the Bank Loan without recourse, representation
or warranty to the Subordinate Lender.
8. Bankruptcy; Insolvency. In the event of any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding
in connection therewith relating to the Borrower or the Collateral, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, or any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the Borrower, all of the
Senior Indebtedness (which term as used throughout this Agreement shall include, without any
limitation, any interest accruing after the occurrence of an Event of Default under the Bank
Loan Documents whether or not such interest is allowed as a claim in any bankruptcy or
insolvency proceedings) due or to become due shall first be paid in cash in full before any
payment on account of principal, interest or otherwise is made upon the Subordinate
Indebtedness, and in any such proceeding, any payment or distribution of any kind or character
which may be payable or deliverable with respect to the Subordinate Indebtedness shall be paid
or delivered directly to the Bank for application in payment of the Senior Indebtedness, unless
and until all such Senior Indebtedness shall have been paid and satisfied in full in cash.
Further, the Subordinate Lender specifically agrees as follows:
(a) In the event that, notwithstanding the foregoing, upon any proceeding or
event described above, any payment or distribution of assets of the Borrower of any kind or
character, whether in cash or property, shall be received by the Subordinate Lender before all
Senior Indebtedness is paid in full in cash, such payment or distribution shall be held in trust
for the benefit of the Bank and immediately paid over to the Bank for application to the
payment to all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full in cash, after giving effect to any concurrent payment or distribution
with respect to the Senior Indebtedness.
(b) The Subordinate Lender shall not take any action to contest (i) the
validity of the liens or security interests granted to the Bank with respect to the Bank Loan
Documents and Senior Indebtedness, (ii) the relative rights of the Bank and the Subordinate
Lender with respect to such liens and security interests or (iii) the enforceability of this
Agreement or any of the Bank Loan Documents.
(c) The subordination provisions contained herein shall continue to be
effective or be reinstated, as the case may be, until such time as the Senior Indebtedness shall
be paid in full in cash; provided that if at any time any payment of any of the Senior
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Indebtedness is rescinded or must otherwise be returned by the Bank upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, the provisions of this Agreement
shall again be operative until all Senior Indebtedness shall again be paid in full in cash, all as
though such payment had not been made. In the event, that following payment of the Senior
Indebtedness in full in cash, the Bank shall receive any payment or distribution on behalf of the
Borrower, the Bank shall promptly deliver such payment or distribution to the Subordinate
Lender, upon written instructions of the Subordinate Lender, or into the registry of the District
Court of the City and County of Denver or other appropriate court having jurisdiction over the
parties and file its complaint in interpleader.
9. Borrower Obligations. The provisions hereof as to subordination are solely for
the purpose of defining the relative rights of the Bank on the one hand, and the Subordinate
Lender, on the other, and none of the provisions of this Agreement shall excuse the Borrower
from its obligations to pay the Subordinate Indebtedness to the Subordinate Lender in
accordance with the terms of the Subordinate Loan Documents, except that the rights of the
Subordinate Lender to exercise remedies otherwise permitted by applicable law or under the
terms of the Subordinate Loan Documents shall be limited as set forth in this Agreement.
10. Remedies. In the event of any default by Subordinate Lender in the provisions
of this Agreement, the Bank may pursue any remedy available at law or in equity, including
without limitation, injunctive or declaratory relief, and/or damages (including reasonable
attorneys' fees).
11. Binding. This Agreement shall be binding on and inure to the benefit of the
parties hereto, their participants in or subsequent holders of the Subordinate Loan Documents
or the Bank Loan Documents, as applicable.
12. Severability. If any provision of this Agreement is, for any reason and to any
extent, invalid or unenforceable, then the remainder of this Agreement shall not be affected by
such invalidity or unenforceability, and there shall be deemed substituted for the invalid
unenforceable provision the most similar provision which would be valid and enforceable
under applicable law.
13. Governing Laws. This Agreement shall be governed by and construed
according to the laws of the State of Colorado.
14. Giving Notice. Any notice required or permitted to be given by Borrower or
Bank under this Agreement shall be in writing and will be deemed given (a) upon personal
delivery or upon confirmed transmission by telecopier or similar facsimile transmission device,
(b) on the first business day after receipted delivery to a national courier service which
guarantees next-business-day delivery, or (c) on the third business day after mailing, by
registered or certified United States mail, postage prepaid, in any case to the appropriate party
at its address set forth below:
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If to Borrower:
Fort Lupton Housing Partners, L.P.
7301 Mission Road, Suite 212
Prairie Village, Kansas 66208
Attention: Garrison L. Hassenflu
Telecopier: 913-362-9817
With copy to:
U.S.A. Institutional Tax Credit Fund XXXVIII L.P.
599 West Putnam Avenue
Greenwich, Connecticut 06830
Attention: David L. Salzman
Telecopier: 203-859-1034
With copy to:
JDF, LLC
599 West Putnam Avenue
Greenwich, Connecticut 06830
Attention: Joanne D. Flanagan, Esq.
Telecopier: 203-869-9543
and to:
Hazelton, Laner & Batson
4600 Madison Avenue, Suite 650
Kansas City, Missouri 64112-3032
Attention: Joel B. Laner, Esq.
Telecopier: 816-753-6208
If to Bank:
U.S. Bank National Association
918 Seventeenth Street, Fifth Floor
Denver, Colorado 80202
Attn: Gail J. Huntsman
Telecopy No.: 303-585-4198
With copy to:
Gorsuch Kirgis LLP
Tower I, Suite 1000
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LLIUkJ' JAJ0 "LQ iii iiiii iii iiiii iiiiiiii.10 Weld County, C0
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1515 Arapahoe Street
Denver, Colorado 80202
Attn: Randall Komisarek, Esq.
Telecopy No.: 303-376-5001
If to Subordinate Lender:
Weld County Housing Authority
P.O. Box 130
Greeley, Colorado 80632
Any person may change such person's address for notices or copies of notices by giving notice
to the other party in accordance with this section.
15. Insertion of Recording Data. By its signatures below, Subordinate Lender
hereby authorizes the Bank or its designee to insert the recording date from the Official
Records of the Bank Deed of Trust and Subordinate Deed of Trust prior to the recordation of
this Agreement.
16. Counterparts. This Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts, each of which when so executed
shall be deemed an original but all of which together shall constitute one and the same
agreement. This Agreement shall become effective upon the execution of a counterpart hereof
by each of the parties hereto.
IN WITNESS WHEREOF, the Bank, the Subordinate Lender and the Borrower have
executed this Agreement the day and year first above written.
BORROWER:
FORT LUPTON HOUSING PARTNERS, L.P.,
a Colorado limited partnership
By: FORT LUPTON HOUSING
CORPORATION,
a Colorado corporation,
its General Partner
By: 21, ,1
Garrison L. Hassenflu, President
PJF\59933\468661.2 8 US Bank/Prairie Sun Project
Subordination and Standstill Agreement
BANK:
U.S. BANK NATIONAL ASSOCIATION
By: c. .<„t J
Ga. J. Hunts an, lce President
SUBORDINATE LENDER:
WELD COUNTY HOUSING AUTHORITY
By:
Name:
Title:
IIIIIIII\L%\\IIIIIIIII\I\% llIIIIVIII\II\\ll\or
\\Iot 1 "25120"
g6 00�D 0.00�TSIeVo Moreno Clerk
9
US Bank/Prairie Sun Project
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Subordination and Standstill Agreement
IN WITNESS WHEREOF, the Bank, the Subordinate Lender and the Borrower have
executed this Agreement the day and year first above written.
BORROWER:
FORT LUPTON HOUSING PARTNERS, L.P.,
a Colorado limited partnership
By: FORT LUPTON HOUSING
CORPORATION,
a Colorado corporation,
its General Partner
By:
Garrison L. Hassenflu, President
BANK:
U.S. BANK NATIONAL ASSOCIATION
By:
Gail J. Huntsman, Vice President
SUBORDINATE LENDER:
WELD COUNTY HOUSING AUTHORITY
By:
Name: Robert D. Masden
Title: Chair, Board of Commissioners
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PJF\59733\468661.2 8 US Bank/Prairie Sun Project
Subordination and Standstill Agreement
STATE OF kCcl1 SciS
) ss.
COUNTY OF •Jl i yi so n )
The foregoing instrument was acknowledged before me this a 3"/ day of
Tlaet�i , 2004, by Garrison L. Hassenflu as President of Fort Lupton Housing
Corporation, a Colorado corporation, as General Partner of Fort Lupton Housing Partners,
L.P., a Colorado limited partnership.
Witness my hand and official seal.
My commission expires: /- r2 2-2roo
LTARY
PUBLIC-STATE OF KANSAS
CATKRINE J. DOW
-2cc'
Sly Appt. Exp. f �..'l-?ss4- te--,/
(g. 0r\aA,
Notary Public
( SEAL )
STATE OF COLORADO )
) ss.
COUNTY OF DENVER
The foregoing instrument was acknowledged before me this J Y day of
}mQd{L , 2004, by Gail J. Huntsman as Vice President of U.S. Bank National
Association.
Witness my hand and official seal.
My commission fires: w�7/.yG d
PAM 1. FINCH
M0TARY PUBLIC &I t l 44/Le/
STATE OF COLORADO Notary Pub
( vici mipsibh Sxplto 12/07'2004
11111111411111111111111111111Ill111111IIIliltIII1111
316609
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Subordination and Standstill Agreement
STATE OF 0. of A-O )
) ss.
COUNTY OF 1,c--C1t1
The foregoin instrument was acknowledged before me this o?3 day of
ft'(a ce.C i4 , 2004, by /&3(,e r b. YV,61SDC-das Q of Weld County
Housing Authority.
Witness my hand and official seal.
My commission expires:
.
VI
I SPR ODE •
Notary 'F`\ ; F.
( SEAL ) O
%.
rOMo ilsmg awn:ui.u.zUd/
MUM 1111111111111111111111III1111111III111111 III till
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Subordination and Standstill Agreement
EXHIBIT A
PROPERTY
LOT 1, MOUNTVIEW SUBDIVISION FILING 2,
CITY OF FORT LUPTON,
COUNTY OF WELD, STATE OF COLORADO,
ACCORDING TO PLAT RECORDED FEBRUARY 13, 2004 AT RECEPTION NO.
3154053
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Subordination and Standstill Agreement
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