HomeMy WebLinkAboutAgenda -11-06-2008 - 4mORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 6, 2008
Action Agenda
Item No. ~` ~
SUBJECT: Loan Subordination Request -Chrysalis Foundation
DEPARTMENT: Housing/Community Dev
ATTACHMENT(S):
Spreadsheet
Subordination Agreement
PUBLIC HEARING: (Y/N) No
INFORMATION CONTACT:
Tara L. Fikes, 919-245-2490
PURPOSE: To consider approval of a request from the Chrysalis Foundation for Mental Health,
Inc. to subordinate four County Deeds of Trust totaling $222,878 to a permanent loan with
Roxboro Savings Bank.
BACKGROUND: Since 2002, Orange County has provided both HOME and Affordable
Housing Bond funding to the Chrysalis Foundation for Mental Health, Inc. to assist in the
acquisition of property in Carrboro and Chapel Hill for the purpose of leasing to low-income
families. In all of these transactions, the County has required Chrysalis to execute a County
Deed of Trust and Promissory Note to secure the County's investment. Additionally, in
acquisitions, Chrysalis has obtained private financing from SunTrust which holds the primary
lien position on these properties.
Currently, the Chrysalis Foundation for Mental Health, Inc. is seeking to refinance all of its debt
in order to provide improved cash flow to its business operations. (Chrysalis has determined
that refinancing at a lower rate and/or with an extended mortgage of 15-20 years will increase
the working capital available to maintain the properties as they age.) Chrysalis is working with
the Roxboro Savings Bank to accomplish this task. Specifically, as a part of this refinancing
plan, Chrysalis proposes to obtain a bank loan of $222,842 that will allow it to pay off the current
SunTrust mortgages. In order to accomplish this, the current Orange County Deeds of Trust
must be subordinate to one securing the new Roxboro Savings Bank loan. The proposed
scenario is detailed in the attached spreadsheet.
Chrysalis, therefore, is asking the County to execute a Subordination Agreement that will allow
the Roxboro Savings Bank loan to be superior to County liens on four properties.
FINANCIAL IMPACT: The County currently has a secondary lien position on these properties.
Therefore, allowing this subordination request does not increase the financial risk to the County
in the event of a default.
RECOMMENDATION (S): The Manager recommends the Board approve the subordination
request and authorize the Chair to sign the Subordination Agreement on behalf of the Board
upon the review and approval of the County Attorney.
Chrysalis Foundation Subordination Request
Address Acquisition
Date Current Suntrust
First Mortgage County Funding
Second Mortgage
County Source
Current Funding Scenario
110A -112A Dillard Street; Carrboro 11/22/2002 $ 70,938 $ 180,000 HOME
1100 Roosevelt Dr.; Chapel Hill 7/22/2003 $ 70,575 $ 133,625 HOME
112 - 114 Johnson Street; Chapel Hill 10/17/2003 $ 19,736 $ 260,000 Housing Bonds
203 - 213 Ashley Forest; Chapel Hill 2/28/2007 $ 61,629 $ 100,000 HOME
Proposed Funding Scenario Roxboro Savings Bank
First Mortgage
110A - 112A Dillard Street; Carrboro 11/22/2002 $ 70,938 $ 180,000 HOME
1100 Roosevelt Dr.; Chapel Hill 7/22/2003 $ 70,575 $ 133,625 HOME
112 - 114 Johnson Street; Chapel Hill 10/17/2003 $ 19,736 $ 260,000 Housing Bonds
203 - 213 Ashle Forest; Cha el Hill 2/28/2007 $ 61,629 $ 100,000 HOME
4.~
10/21/08 00:03 FAS
X002
3
SUBORDINATION OF DEED OF TRUST
RECORDATION REQUESTED 8Y:
ROX80R0 SAVINGS BANK, 556; Main Office; 313 Soutlt Main 5lreet; P. O. Box 489; Roxboro, NC
27573-0489
WHEN RECORDED MAIL T0:
ROXBORO SAVINGS BANK, SSB; Mein Office; 318 South Maltt Street: P. O, Box 489; Rexboro, NC
27573-0489 '
SEND TAX NOTICES TO:
ROXBORO SAVINGS BANK, SSB; Maltt Offioe; 313 South Main.streat; F. O. Box 489; Roxboro, NC
27873.0489
This Subordination of Deed of Trust preppted hy:
X Arthur F. IC"rueae Jr.. Vice President
NOTICE: THIS SUBORDINATION OF DEED O~' T ~RE ULTS 1N YOUR SECURITY INTEREST IN TWE
PROPERTY BECOMING SUBJECT TO AND OF L '~~30R '~ AN THE LIEN OF SOME OTHER OR LATER
SECURITY INSTRUMENT. : ~~s; .t . ~=~t
"•=r ~ ~s~llr
THIS SUBORDINATION OF DEEb OF TRUST dated October 20, 208, fa made end executed among Orange
County -"Bencficlary"}; Wayne R. Hailer a. {"Trustee"-; The Chrysalis Foundation
for Mortal Health, Inc. ("Borrower"1; and ROXBORO SAVINGS BANK, SSB 1"Lander"l,
SUBORDINATED INDEBTEbNESS. Beneficiary has extended the following described financial accommodations,
secured by the Raa1 Property {the "Subordinated Indebtedness"): '
Several Pr'onNssory Notes secured by Deods of Trust to a Trustee ht favor of Orange County dated Ootober
17, 2003 and July 22, 2003 and November 22, 2002 and February 28, 2007 respectively, as they may
relate to the properties securing the Subnrdlnatad Indebtedness.
SUBORDINATED DEED qF TRUST. The Subordinated Indebtedneas is or will be secured by the Real Property
and evidenced by a dead of trust dated as shoran ahovefrom The Chrysalis Foundation for Mental Wealth,
Inc. !"Trustor") to Geoffrey E, Gledhill _ ("Trusleo"! in favor of Orange Ccunty
("Beneficiary"f ftho "Subordinated Deed of Trust") and recorded in Orange County, State of North Carolina as
follows:
RB 3235, Page 351 {tenorded October 20, 2003} and RB 3112, Paye 540 (recorded Juty 22, 2003) and
RB 2804, Page 161 (recorded Novambor 28, 2002) and RB 4228, Page 176 (recorded March 1, 20071;
respectively as they may relate to the propertiea securing ilte Subordinated indebtedness.
REAL PROPERTY DESCRIPTION. The Subordinated Oeed of Trust covers the following described real property
Ithe "Real Property") located in Orange Cnunty, Slate of North Carolina:
See Exhibit A, which is attached to this Subordination and made a part of this Subordination as ii fully set
forth herein,
The Real Property or its address is commonly i[nown as 112•A & B Johnson Street, 114 A & B Johnson
Street, 1100 Roosevelt Drive, 110 A & B and 112A Dillard Street and Units 203 and 213, Ashley Forest
Cortdominit>tns. Chapel Hill, NC, The Real Property tax identification number is 9778949088 and 9789901441
and 9778494003 and 97$5385858.027 and 9789386658.022, respectively as they relate to the properties
referenced herein. ,
SUPERIOR INDEBTEDNESS, Lander has extended or has agreed to extend the followiny described financiat
occommodations to Borrower, secured by the Real Property Itt~e "Superior Indebtedness"!:
A Promissory Note of even date herewith, secure[I qv a Peed of Trust to a Trustee in favor of the lender
secured by the above described real property located in Chapel WIII, Oranye County, North Carolina.
10/21/08 00:03 FAR
f~003
SUBORDINATION 01= DEED OF TRUST O
(Contlnut:d) Page 2
LENDER'S LIEN," The Superior Indebtedness is Or will be secured by the Real Property and evidenced by a deed
of trust, doled October 20, 2008, from Borrower to Lender (the "Lender's Lien"1 and recorded in Orange
County, State of North Carolina as follows;
Orange County Registry RH ~, Page _ on xx, 2008.
As a condition to the granting of the requested financial accommodations,• Lander has required that the
Lendar'S Lian be end remain superior to the Subordlnated Deed of Trust.
REQUESTED FINANCIAL ACCOMMODATIONS. BenetlCiary, who may or may oat ba the same person or•entlty
as Truster, and Borrower each want Lender to provide finaneial accommodations to Borrower in the form of the
Superior Indebtedness. Borrower and Beneficiary each represent and acknowledge to Lender that Beneficiary
will benefit as a result of these financial aCCOmmodetions from Lender to Borrower, and Beneficiary
acknowledges receipt of valuable consideration for entering into this Subordination.
NOW THEREFORE TWE PARTIES TO THIS 5UBORDINA71ON HEREBY AGREE AS'FOLLOWS:
SUBQROINA71ON. The Subordlnated Deed of Trust and the Subordinated Indebtedness secured by the
Subordlnated Dead of Trust is and shall be subordinated in elf respects to Lender's Lien and the Superior
Indebtedness, and It Is agreed that Lender's Lien shell be and remain, at all tlntas, prior and superior t0 the {ten
of the Subordinated Daed of Trust. Beneficiary also subordinetas to Lender's Lien all other 3artrrity Interest6 in
the Rael Property held by Beneficiary, whether now exlsttng Or hereafter acquired. The words "security
Interest"• mean and include without limitation any type of collateral security, whether in the form of a lien,
charge, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust, lector's lien, equipment
trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security
device, or any athei security or lien interest whatsoever, whether created by law, contract, or otherwise.
BENEFICfARY'S REPRESENTATIONS AND WARRANTIES. Beneficlary represents and warrants to Lander that:
{AI no representations or agreements of any kind have been made to Beneficlary which would limit or qualify
in any way the terms of this Subordination; f81 this Subordination is executed at Borrower's request and not at
the request of Lender; IC) Lander has made no representation to Beneficiary as to the creditworthiness of
Borrower; and {D) Beneficiary has eat ~ ed adequate means of obtaining from Borrower on a continuing
basis information regarding Borrower' `tine cla~condition_ Beneficlary agrees to keep adequately Informed
from such means of arty facts, evea~s, o ' ~Irtgl)t4~ances which might in any way affect eeneficlary's risks
under this Subordination, and Benefit;" t~~t~a~~rees that Lander shall have no obligstion to disclose to
Beneficiary information or material acqu)red.~ L6,r~'t9er in t;~ty course of its relationship with Beneficiary.
~r t('i;
BENEFICIARY WAIVERS, Beneficiary waives a 1Fy~f",~ "o re~y(4e Lender; (AI to make, extend, renew, or
modify any loan to Borrower or to grant any ottter'finang5al acctiri~odations to Borrower whatsoever; (B) to
make any presentment, "protest, demand, or• notice of~r>{yr~km't~ rn np notice of any nonpayment of any
Superior Indebtedness secured by Lender's Lien, or notice of any a n`tfr nonactivn on the part of Borrewar,
Lender, any surety, endorser, or other guarantor in connection wltl~;. , e superior Indebtedness, or in connection
with the creation of new or additional indebtedness; IC- to re'~irt for payment ar to proceed directly ar at
onto against any person, includ'+ng Borrower; {D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, lima, and
place of any public or privets sale of personal property saeurity held by Lender from Borrower or to comply
with any other applicable provisions of the Uniform Commercial Code; (F} to pursue any other remedy within
Lender's power; or IG) to Commit any act or omission of any kind, at any time, with respect to any matter
whatsoever.
LENDER'S RIGHTS. lender may take or emit any and all actions with respect to Lender's Lien without
affecting whatsoever any of Lender's rights under this Subordination. In particular, without limitation, Lender
may, without notice of any kind to Beneficiary, iA1 make one or more additional secured or unsecured loans
to Borrewar; {B- repeatedly alter, Compromise, renew, extend, accelerate, or otherwise change the time far
payment or ocher terms of the Superior Indebtedness or any part of it, including increases and decreases of tfte
rate of interest on the Superior tndabtadness; extensions may 6a repeated end may be for longer than the
original loan term; IC) take and hold collateral for the payment of the Superior Indebtedness, And exchange,
enforce, waive, and release any such collateral, with yr without the substitution of new collateral; {D} release,
substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsara, or guarar,tvrs on
any teens or manner Lender chooses; IE} determine haw, when and what applleation of payments and
credits, shall be made on the Superior Indebtedness; (F) apply such security and direct the older or manner of
sale of the security, as Lander in its discretion may determine; and IGI transfer this Subordination to another
party.
DEFAULT BY 66RROWER. It Borrower becomes Insolvent or bankrupt, this Subordination shall remain in full
force and effect. Any default by Borrower under the terms of the Subordinated Indebtedness also shall
constitute an event of default under the terms of the•Superior Indebtedness in favor of Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions ore a port of this 9ubordtnatlon:
Amendments. This Subordbtation constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Subordination. No alteration of or amendment to this Subordinadon shall be
a{Iective unless given in writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Attorneys' Fsas; Expenses. If Louder irscitutea any suit or action to ~nforoa any of the terms of thin
>oizvoa oe:oa P,tx
r~oo~t
SUf30RbINA710N OF pEEp OF TRUST
(Gontinuedj Pago 3
Subordination, Lender shall be entitled to recover such sum as the court may. adjudge reasonable as
attnrney~' fees at trial and upon any appeal. Whether or not any court action is.involved, and to the extent
not prohibited by law, all reasonable expanses Lander incurs tYrat in Lender's opinion are necessary at any
time for the protection of its interest or the enforcement of its rights shall become a part of the
Indebtedness payable on demand and 'shall bear interest at the Nota rate from fire date of the expenditure
until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits
under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses, whether or not
there is a lawsuit, including reasonabia attorneys' fees and expanses for bankruptcy proceedings linciuding
efforts to modify or vacate any automatic stay or injuntitinn), appeals, and any anticipated post-judgment
' cofiection services, the cost of searching records, obtaining title reports (including foreclosure reports},
surveyors' reports, and appraisal lees, title insurance, and leas !or [fie Trustee, to the extent permitted by
applicable taw. Beneficiary also wlil pay any court costs, in addition tv ail other sums provided by law.
Authority. The person who signs this Subordination as or on behalf of Beneficiary represents and warrants
that he or she has authority to execute this Subordination and to subordinate the Subordinated
Indebtedness and the Beneficiary's security interests In Beneficiary's property, if any,
Caption Hoadinga. Caption headings in this Subordination are far convenience purposes only anti are not to
be used to interpret or define the provisions of this Subordination.
Goventing Law. This Subo+dinatian will be governed by federal law applicable to lender and, to the extent
not preempted by federal taw, tl-a laws of fire State of~North Carolina without regard to its conflicts of law
txovlslotta. This Subordfnatlon has been accepted by Lonrler in the State of Nortlt Carolina.
Choice of Venue, If thvro is a lawsuif, Beneficiary agrees upon Lender's request to submit to the
jurisdiction of the courts of Person County, State of North Carolina.
Successors, This Subordina[ion shall extend to and bind the respective heirs, personal representatives,
successors and assigns of the parties to this Subordfnatlon, and the covenpnts of Beneficiary herein in
favor of Lender shall extend to, include, and be enforceable by any transferee or endorsee to whom Lender
may transie+ dny or all of the Superior~tndabtedness.
No Waiver by Lender, Lender sh~~n be deemed to have waived any rights under this Subordination
unless such waiver is given in wr"SE g e sj pd by Lander. No delay or omission on fire part of Lender in
exorcising any right shall operat t}~, er such right yr any other right. A waiver by Lender of a
provision of this Subordination ~a11 n~~ i~e or constitute a waiver of Lender's right otherwise to
demand strict compliance with that prevtsion~or ar ~'i~~ter provision of this Subordination, No prior waiver
by Lander, nor any course of dealing betweer%; a~~eficiary, shall constitute a waiver of any of
lender's rights or of any of~ eeneflcfary's obligation~r, s an ~X lure transactions. Whenever iha consent
of Lender is required under this Subordination, the aka~tf n i'9f au~,~eonsant by Lentler in any fnstanca shall
not constitute Continuing consent to subsequent insta~cas wherQlsuih consent is required end in ell cases
such consent may be granted ar withheld in the sole discretionijt~i Lender.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS 7HE PERSON
OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN, A PORTION OF WHICH MAY B£
EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT O>: THE LAND,
EACH PARTY 70 THIS SUBORDINATION ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
SUBORDINATION, AND £ACH PARTY AGREES 70 ITS TERMS. THIS SUBORDINATION !S DATED OCTOBER
zo. zoos.
THIS SUBORDINATION i3 QIVEN UNDER SEAL AND IT 15 INTENDED THAT THIS SUBORDINATION IS AND
SHALL CONSTITUTE AND HAVE THE Ef-FECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
THE CHRYSALI3 FOUNDATION FOR MENTAL li£ALTH. INC.
By: _ ISeall
Alan Maltbie, Chair of The Chrysalis Foundation far Mental
Health, inc.
By: _ (seal)
Curtis McLaughlin, Treasurer of The Cltrysalia Foundation for
Mental Health, 1nC•
10/21/08 Ofl:09 Fds
Pd 00 B
SUBORDINATION OF DEED OF TRUST
(Contliluadl ~ Page 4
BENEFIC]ARY:
ORANGECOUN7Y
BY= {Seal)
Authorized Signer for Orange County
BY~ (Beall
Authorized Signar for Orange County
TRUSTEE:
x ~{SoaU
Autherzed Signer
x _` ~ f8ooq
Authorized Signar
LENDER:
.~
ROXBgRO SAVINGS BANt(, SSB ~ is .c
q~ ~ .~ .Sr~L4 .
"i:2:.~ys~ p Cr^'t~'~7J
.~
x (3%~1e11 ~~~'
Arthur F. Krueger, Jr., Vtce President ~ jer~~~[~% ~~~
:u ~4r
fJ'
i}
:~~
a.
10/21/08 00:09 FAS
~ 008
SUBORbINATION OF DEED OF TRUST
(Continued) ~ Page 5
QORf'ORATE ACKNOWLEDGMENT
STATE OF
COUNTY OF
I
SS
I. _ _, a Notary PupiiC fOr said County and Slate, do
hargby certify that Alan Maltble, Chair of The Chrysalis Foundation for IVlental Health, Ino. and Curtis
McLaughlin, Treastuer of The Cftrysafs Foundation for Mental Health, Inc. personally came before me this day
and acknowledged that they ere Chair of The Chrysalis Foundation for Mentaf Health, Inc, and Treasurer of The
Chrysalis Foundation for Mental Health, Inc., a corporation, and that they, ea Chair of The Chrysalis
Foundation for Mentaf Health, fnc. and Treasurer of The Chrysalis Foundation for Mental Health, Inc. being
authorized to do so executed the foregoing on pehalf of the corporation.
Witness my hand and Notarial Seal tills the day of __ •_~, 20
My Commission expires:
Notary Public
1 Affix Noiarial Seal Here I •ffr~i'
.i:'~ ~i :tr
y.~_~N Nylr
~:~ .!.!
'DOVERNMFNY ACK~iOWLED• ~ •ENT
a:
er
STATE OF f
7 3S'
COUNTY OF 1
I, a Notary Public far said County and State,
certify that
personally came balore me this day and ecknovoladyed the due execution of the foregoing instrument in writing
by _ _ for Orange County, a government, for the uses
and purposes therein set forth.
Witness my hand and Notarial Seal this the day of , 20
Notary Public
My Commission Expires:
i Affix Namriol S®al Hare S
ioi2lioe 00:09 FAS ~ oo~
SUBORDINATION Of DEED OF TRU57
(Continued} Page ~
CORPORATE ACKNOWLEDGMENT
STATE OF
cauN7Y OF
1
SS
1
1, _,_ , a Notary Public for said County and State, do
hereby eertify that ___ _____ ,
personally came before me this day and acknowledged that they era
a corporation, and that they, as _,~"____,_
being authorized [o do so executed the foregoing on
witness my hand and Notarial Seal this the
My Commission Expires:
{ Affix Notarial Seal Here I
o{ the corporation.
day of ___,~ , 20_~
Notary Public ~~
~' 't~v a iii
.i< ..~
,r y^~r'.
10/21/08 09:04 FAa
rd~ooe
SUBORDINATION OF DEED OF TRUST
(Continued) Page 7 O
CORPORATEACKNOWLEDOMENT
STATE OF
COUNTY f)F
i
ISS
I
I, _ , a Notary Public for said County and Stato, d0
hereby certify that _
personally came bofora me this day and acknowledged that they are
a corporation, and that they, as -_ ~~ T
being authorized to do so executed the foregoing on behalf of the corporation.
Witness my hand and Notarial Seal this the day of ,____ , 20
My Comrnisslon Expires:
( Affix Notarta! Seal Hero I
Notary Public
;fr'."+S
"~at::sf3~%~~ f{s`~
.~'
t
LCNUtH Hli1lNUW
STATE OF ~~~ I
I SS
COUNTY OF ~)
{, _ _ _ _ , a Notary Public for said County and State, do
hereby certify that Arthur F. Krueger, Jr., Vice President personally came before rna this day and acknowledged
that he for ahel is Vice President of ROxBORO &AVINOS BANK, SSB, a corporation, and that helsite, as Vice
President being authorized to do sa executed the foregoing on behalf of the corporation,
Witness my hand and Notarial Seal tltia t{te day of _-_. , 20
Notary~Publlc'
Nly Commission Expires:
Affix Notarial Seal Here 1