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HomeMy WebLinkAboutDonez, Christopher; 2007-07-02;' Recorded at the request of LandAmeriea Developer Services Subdivision Department Recording Requested and When Recorded Mail To: City of Carlsbad I City Clerk's Office I Attn: City Clerk )1200 Carlsbad Village Drive Carlsbad, CA 92008 DGC# 2007-0590240 SEP 06, 2007 4:14 PM OFFICIAL RE CORDS SAN DIEGu COUNTY RECORDER'S OFFICE G R E b 0 R' i' J S MIT ri. COL! N TY R E CO R D E F; FEES: 0.00 V/AYS- 2 PAGES: 11 DA- 1 11305 2007-0590240 NOTE TO BORROWER: THIS DEED OF TRUST CONTAINS PROVISIONS PROHIBITING ASSUMPTIONS DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of this Second day of July, 2007, among Christopher M. Donez ("Borrower") as trustor, and Lawyers Title Company ("Trustee"), and the City of Carlsbad, a municipal corporation (the "City"), as beneficiary. The Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the property located in the City of Carlsbad, State of California, described in the attached Exhibit A (the "Property"). TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust; and TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; THIS DEED OF TRUST IS SECOND AND SUBORDINATE TO A DEED OF TRUST RECORDED CONCURRENTl* HEREWITH 1010\17\442067.2 1 11306 TO SECURE to the City the repayment of the sums evidenced by a promissory note in the amount of Two Hundred eighty eight thousand', two hund'rSpllars ($288,20JJI. executed by the Borrower to the City as of the date of this Deed of Trust (the "Note"); / TO SECURE to the City the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of the Borrower herein contained; and TO SECURE to the City the performance of the covenants and agreements of Borrower contained in that certain Resale Restriction Agreement and Option to Purchase executed by and between the Borrower and the City of even date herewith (the "Resale Agreement") and to secure the payment of Excess Sales Proceeds (as defined in the Resale Agreement) and Excess Rental Proceeds (as defined in the Resale Agreement) that may become due by Borrower to City; TO SECURE the performance of any obligations of Borrower in any other agreements with respect to the financing of the Property or the Security the failure of which would adversely affect Beneficiary, whether or not Beneficiary is a party to such agreements. BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS: 1. Borrower's Estate. That the Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the Security is encumbered only by: (a) that deed of trust executed by the Borrower in connection with a loan made to the Borrower by Bank of America or its successors and assigns (the "First Lender"), dated *** , 2007_, executed by the Borrower in favor of First Lender, and recorded in the County of San Diego on *** . 2007_, and assigned Recorder's Serial No. *** (the "First Lender Deed of Trust"), securing a promissory note executed by the Borrower in favor of the First Lender ("First Lender Note"), to assist in the purchase of the Property; and (b) the Resale Agreement. The Borrower agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the City's interest in the Security. (As used in this Deed of Trust, the term "First Lender" shall include all successors and assigns of the First Lender.) 2. Repayment of Loan. The Borrower will promptly repay, when due, the principal, interest and other sums required by the Note and Resale Agreement, including all principal and interest on the Homebuyer Loan (as defined in the Note) and the Excess Sales Proceeds and Excess Rental Proceeds due under the Resale Agreement. The Note contains the following provisions concerning repayment of the loan under certain conditions: *** RECORDED CONCURRENTLY HEREWITH 1010\17\442067.2 11307 Limitations on Assumption of Note. The Borrower acknowledges that this Note is given in connection with the purchase of property (the "Residence") as part of a program of the City to assist in the purchase of homes by low and moderate income persons. Consequently, this Note is only assumable by Eligible Purchasers (as defined in the Resale Agreement). This Note is due in full upon all other Transfers. In the event this Note is assumed by an Eligible Purchaser, the Eligible Purchaser shall execute a new note, which shall be in an amount equal to the principal and Contingent Interest owed by Borrower, a new deed of trust and a new resale restriction agreement with a restarted term in forms approved by the City. 3. First Lender Loan. The Borrower will observe and perform all of the covenants and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender loan documents. 4. Resale Agreement. The Borrower will observe and perform all of the covenants and agreements of the Resale Agreement. 5. Charges: Liens. The Borrower will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by the Borrower making any payment, when due, directly to the payee thereof. The Borrower will promptly furnish to the City all notices of amounts due under this paragraph, and in the event the Borrower makes payment directly, the Borrower will promptly discharge any lien which has priority over this Deed of Trust; provided, that the Borrower will not be required to discharge the lien of the First Lender Deed of Trust or any other lien described in this paragraph so long as the Borrower will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Insurance. The Borrower will keep the Security insured with a standard fire and extended coverage insurance policy in at least an amount equal to the replacement cost of the Security, but in no event less than the amount necessary to prevent the Borrower from becoming a co-insurer under the terms of the policy. The insurance carrier providing this insurance shall be licensed to do business in the State of California and be chosen by the Borrower subject to approval by the City; provided, that such approval will not be withheld if the insurer is also approved by the First Lender, the Federal Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of Housing and Urban Development, the United States Department of Veterans Affairs, or successors thereto. All insurance policies and renewals thereof will be in a form acceptable to the City and will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of the First Lender Note and the City as their interests may appear and in a form 1010\17\442067.2 11308 acceptable to the City. The City shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and the Borrower shall promptly furnish to the City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt notice to the insurance carrier and the City or its designated agent. The City, or its designated agent, may make proof of loss if not made promptly by the Borrower. The City shall receive thirty (30) days advance notice of cancellation of any insurance policies required under this section. Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject to the rights of the First Lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the Security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle a claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights of the First Lender, to collect and apply the insurance proceeds at the City's option either to restoration or repair of the Security or to repay the Note and all sums secured by this Deed of Trust. If the Security is acquired by the City, all right, title and interest of the Borrower in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender. 7. Preservation and Maintenance of Security. The Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. If there arises a condition in contravention of this section, and if the Borrower has not cured such condition within thirty (30) days after receiving a City notice of such a condition, then in addition to any other rights available to the City, the City shall have the right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Security to recover its cost of curing. 8. Protection of the City's Security. If the Borrower fails to perform the covenants and agreements contained in this Deed of Trust, the Resale Agreement, the First Lender Note, the First Lender Deed of Trust, or if any action or proceeding is commenced which materially affects the City's interest in the Security, including, but not limited to, default under the First Lender Deed of Trust, the First Lender Note or any other deed of trust encumbering the Property, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the City, at the City's option, upon notice to the Borrower, may make such appearances, disburse such sums and take such action as it determines necessary to protect the City's interest, including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security to make repairs. 1010\17\442067.2 11309 Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and City agree in writing to other terms of payment, such amount will be payable upon notice from the City to the Borrower requesting payment thereof, and will bear interest from the date of disbursement at the lesser often percent (10%) or the highest rate permissible under applicable law. Nothing contained in this paragraph will require the City to incur any expense or take any action hereunder. 9. Inspection. The City may make or cause to be made reasonable entries upon and inspections of the Security; provided that the City will give the Borrower reasonable notice of inspection. 10. Forbearance by the City Not a Waiver. Any forbearance by the City in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy, nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining principal and interest owed. The procurement of insurance or the payment of taxes or other liens or charges by the City will not be a waiver of the City's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. "Hazardous Substances" shall mean those substances defined as toxic or hazardous substances or hazardous waste under any Environmental Law, and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. "Environmental Law" shall mean all federal and state of California laws that relate to health, safety or environmental protection. Borrower shall promptly give City written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. 12. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 1010\17\442067.2 11310 13. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the City and the Borrower subject to the provisions of this Deed of Trust. 14. Joint and Several Liability. All covenants and agreements of the Borrower shall be joint and several. 15. Notice. Except for any notice required under applicable law to be given in another manner, all notices required in this Deed of Trust shall be sent by certified mail, return receipt requested or express delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable as follows: To the Owner: At the address of the Residence. To the City: City of Carlsbad Housing and Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 Attn: Housing and Redevelopment Director The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. 15 Controlling Law. This Deed of Trust shall be construed in accordance with and be governed by the laws of the State of California. 16 Invalid Provisions. If any one or more of the provisions contained in this Deed of Trust, Resale Agreement or the Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions, and this Deed of Trust, the Resale Agreement and the Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Deed of Trust, Resale Agreement or the Note. 17 Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18 Nonliability for Negligence, Loss, or Damage. Borrower acknowledges, understands and agrees that the relationship between Borrower and the City is solely that of an Borrower and the administrators of City inclusionary housing program, and that the City does 1010\17\442067.2 11311 not undertake or assume any responsibility for or duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the Security or any other matter. The City owes no duty of care to protect Borrower against negligent, faulty, inadequate or defective building or construction or any condition of the Security and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns shall ever claim, have or assert any right or action against the City for any loss, damage or other matter arising out of or resulting from any condition of the Security and will hold City harmless from any liability, loss or damage for these things. 19. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees that the City may incur as a direct or indirect consequence of: a. Borrower's failure to perform any obligations as and when required by the Note, Resale Restriction Agreement, and this Deed of Trust; or b. the failure at any time of any of Borrower's representations or warranties to be true and correct. 20. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower in the Note, Resale Agreement or this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to acceleration, will send, in the manner set forth in Section 15 of this Deed of Trust, notice to the Borrower specifying: (1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a date, not less than thirty (30) days from the date the notice is effective as set forth in Section 15 of this Deed of Trust, by which such breach, if curable, is to be cured; and (4) if the breach is curable, that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. Notice shall be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused or the date the notice was returned as undeliverable. The notice will also inform the Borrower of the Borrower's right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of the Borrower to acceleration and sale. If the breach is not curable or is not cured on or before the date specified in the notice, the City, at the City's option, may: (a) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Security, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the City shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to 1010\17\442067.2 11312 the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which the Borrower acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees. 21 Acceleration. Upon the occurrence of a default under the Note, the Resale Agreement, this Deed of Trust, the First Lender Note, or the First Lender Deed of Trust, the City shall have the right to declare the full amount of the principal along with any interest under the Note immediately due and payable. Any failure by the City to pursue its legal and equitable remedies upon default shall not constitute a waiver of the City's right to declare a default and exercise all of its rights under the Note, the Resale Agreement, and this Deed of Trust. Nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining principal and interest owed. 22. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all sums, if any, which would be then due under this Deed of Trust and no acceleration under the Note has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the Borrower contained in the Note, Resale Agreement or this Deed of Trust; (c) the Borrower pays all reasonable expenses incurred by City and the Trustee in enforcing the covenants and agreements of the Borrower contained in the Note, Resale Agreement or this Deed of Trust, and in enforcing the City's and the Trustee's remedies, including, but not limited to, reasonable attorney's fees; and (d) the Borrower takes such action as City may reasonably require to assure that the lien of this Deed of Trust, City's interest in the Security and the Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the City will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The City, at the City's option, may from time to time remove the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 1010\17\442067.2 11313 23. Subordination to First Lender Mortgage. Notwithstanding any other provision hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender Deed of Trust and shall not impair the rights of the First Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default under the First Lender Deed of Trust by the Borrower. Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or upon assignment of the First Lender Deed of Trust to the Secretary of the United States Department of Housing and Urban Development (the "Secretary"), this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender's Deed of Trust is assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition of title or assignment to the Secretary provided that (i) the City has been given written notice of default under such First Lender Deed of Trust and (ii) the City shall not have cured or commenced to cure the default within such thirty (30)-day period and given its firm commitment to complete the cure in the form and substance acceptable to the First Lender. Borrower agrees to record any necessary documents to effect such termination, if applicable. IN WITNESS WHEREOF, the Borrower has executed this Deed Of Trust as of the date first written above. Borrower (Print Name) Borrower (Print Name) 1010\17\442067.2 11314 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) -QSSS , 200jh, before me \LAJ or proved to me on the •e subscribed to the within er/their basis of satisfactory'evidence) to b6-me person(s) whose name(s instrument and acknowledged to me that-Kg&he/they executed the same i^fl authorized capacity(ies), and that byJjgZher/their signature(s) on the instrument the person(s) or ie entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal MARY ANNE KELLER COMMJ1601454NOTARY PUBLIC-CALIFORNIA «|SAN DIEGO COUNTY .MY COMM. EXP. SEPT. 15,20097 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On _, 200 , before me,_, personally appeared _, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 144\105\442067.2 File No: 089^0641 ' \\ 11315 EXHIBIT "A" All that certain real property situated in the County of San Diego, State of California, described as follows: A Condominium comprised of: PARCEL 1: That portion of Lot 1, of Carlsbad Tract No. 02-18, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 15346, filed in the Office of the County Recorder of San Diego, California, May 19, 2006 as defined as Unit No. 502 of Module 1 on that certain Condominium Plan ("Plan") recorded on February 27, 2007 as File No. 2007-0133007, and any amendments thereto, in the Official Records of said County. PARCEL 2: An undivided l/27th fee simple interest as tenant in common in and to the common area of Module 1 of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, as more particularly described and delineated on the Condominium Plan referred to above. EXCEPTING THEREFORM, units 101 through 104, inclusive, 201 through 204, inclusive, 301 through 304, inclusive, and 401 through 405, inclusive, and 501 through 510, inclusive, as shown and defined on the Condominium Plan recorded February 27, 2007 as File No. 2007-0133007, and any amendments thereto, of Official Records. RESERVING THEREFROM, exclusive easements for patios, and/or parking spaces over and across those portions of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, shown and defined as "Exclusive Use Common Area" on the Condominium Plan referred to above. PARCELS: An exclusive easement, appurtenant to Parcel 1 above, for all uses and purposes of patios, and/or parking spaces across that portion of the common area property within Module 1 of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, bearing the same number designation as the Unit referred to in Parcel 1 above, shown and defined as an "Exclusive Use Easement Area" on the Condominium Plan referred to above. RESERVING THEREFROM, for the benefit of Grantor, its successors in interest and others, easements for access, use, enjoyment, construction, repairs, drainage, and for other purposes, all as more fully described in the Declaration of Covenants, Conditions and Restrictions for The Bluffs At Carlsbad Homeowners Association recorded on February 27, 2007 as File No. 2007-0133008, of Official Records, and all amendments and supplements thereto. ., Assessor's Parcel Number: 206-120-11 00 WITH OTHRR PROPERTY (OF Recorded at the request of LandAmerica Developer Services Subdivision Department RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 ^ When Recorded Mail To: City of Carlsbad City Clerk's Office Attn: City Clerk 1200 Carlsbad Village Drive Carlsbad, CA 92008 DQCtt 2007-0590239 SEP 06, 2007 4:14 PM OFFICIAL RECORDS SAN DitGO COUNT'V RECORDERS OFFICE GREGORY j. SMITH COUNTY RECORDER FEP'v 0.00 WAYS: : OC: NA PAGES: 30 11275 2007-0590239 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) RESALE RESTRICTION AGREEMENT, AND OPTION TO PURCHASE CITY OF CARLSBAD HOMEBUYER PROGRAM - 2007 Owner: Christopher M. Donez Address of Home: 4024 Sand Cove Way Carlsbad, CA This Resale Restriction Agreement and Option to Purchase (the "Agreement") is entered into as of this Second day of July , 2007, by and between the City of Carlsbad (the "City "), and Christopher M. Donez (the "Owner "). RECITALS A. The City has developed a second mortgage program designed to assist qualified low or moderate income households purchase their homes located within the City of Carlsbad t (the "Homebuyer Program "). B. In connection with the Homebuyer Program and in fulfillment of its inclusionary obligation pursuant to an Affordable Housing Agreement (the "Affordable Housing Agreement") between Anastasi Develoment Company (the "Developer") and the City dated April 14, 2006_, the Developer made a loan in the amount of Two Hundred eighty eight thousand and two Hundred Dollars ($;288 > 200.00 to Owner to purchase a single-family dwelling located in Carlsbad, California on that certain real property and more particularly described in Exhibit A (the Home") and then assigned such loan to the City. The City also provided assistance in the 1010\17X443569.2 11276 amount of Twenty Thousand Dollars ($20,000 X The Developer loan as assigned to the City and the City loan shall be referred to collectively herein as the "Homebuyer Loan".] C. As used herein, the term "Home " includes both the real property and all improvements now or hereafter erected on the property and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the property. D. The "Original Affordable Purchase Price" of the Home is Sixty-One Thousand Eight Hundred Dollars ($61,800).The Original Affordable Purchase Price is the effective price of the Residence paid by the Owner. The actual price of the Residence is equal to the Original Affordable Purchase Price plus the amount of the Promissory Note (the "Full Purchase Price"). Owner is a low income household. E. The Owner is receiving a First Lender Loan in the amount of Sixty-One Thousand Eight Hundred Dollars ($61.800) (the "First Lender Loan") from Bank of America (the "First Lender"). The First Lender Loan is secured by a deed of trust dated *** 2007. executed by the Buyer in favor of First Lender and recorded in the County of San Diego on *** 2007. and assigned Recorder's Serial No. *** (the "First Lender Deed of Trust"). F. The Loan is evidenced by a promissory note in the amount of the Loan (the "City Note "). This Agreement and the City Note shall be secured by a deed of trust (the "City Deed of Trust") subordinate to the lien of First Lender Deed of Trust. G. The purpose of this Agreement is to place resale controls on the Home, to provide the City an option to purchase the Home at a restricted price and to ensure that the Owner complies with the Homebuyer Program requirements. H. This Agreement and the City Note require repayment of the loan plus contingent interest and, in certain instances, payment of excess proceeds of sale. This Agreement will remain in full effect as an encumbrance on the Property after any prepayment of the City Note by the Buyer. NOW, THEREFORE, in consideration of the benefits received by the Owner and the City, the Owner and the City agree, as follows: 1. DEFINITIONS AND EXHIBITS A. The following terms are specifically defined for this Agreement and their definitions can be found in the Sections indicated below: (1) "Affordable Sales Price" - Section 14A(l)(a). *** RECORDED CONCURRENTLY HEREWITH 1010\17\443569.2 11277 (2) "Agreement" - first sentence of the Agreement on page 1. (3) "City" - first sentence of the Agreement on page 1. (4) "City Deed of Trust" - Recital F. (5) "City Designated Purchaser" - Section 12B. (6) "City Note"-Recital F. (7) "City Option" - Section 12A. (8) "City Response Notice" - Section 10. (9) "Eligible Purchaser " Section 15B. (10) "Extended Term" - 1OC. (11) "Excess Sales Proceeds" - Section 16. (12) "Fair Market Value" - Section 14B. (13) "First Lender" - Recital E. (14) "First Lender Deed of Trust" - Recital E. (15) "First Lender Loan" - Recital E. (16) "Full Purchase Price" - Recital D. (17) "Full Sales Price" - Section 14A. (18) "Home" - Recital B. (19) "Homebuyer Loan" - Recital B. (20) "HUD" - Section 30. (21) "Initial Term"-1 OB. (22) "Market Purchaser" - Section 1 OC. (23) "Maximum Restricted Resale Price" - Section 14. (24) "Median Income " - Section 14A. 1010\17\443569.2 11278 (25) "Original Affordable Purchase Price" - Recital D. (26) "Owner " - first sentence of the Agreement on page 1. (27) "Owner's Notice of Intent to Transfer " - Section 8. (28) "Proposed Purchaser " - Section 15A. (29) "Transfer " - Section 7. B. The following Exhibits are attached to this Agreement: (1) Exhibit A: Legal Description of Property (Home) (2) Exhibit B: Form of Owner Occupancy Certification (3) Exhibit C: Form of Owner's Notice of Intent to Transfer (4) Exhibit D: Form of City Response Notice (5) Exhibit E: Form of Owner Acknowledgement of City Response Notice (6) Exhibit F: Form of Owner Request for City Subordination to Refinanced First Lender Loan 2. OWNER CERTIFICATIONS The Owner certifies that (i) the financial and other information previously provided in order to qualify to purchase the Home is true and correct as of the date first written above, (ii) the Owner is an Eligible Purchaser, and (iii) the Owner shall occupy the Home as the Owner's principal place of residence. 3. OCCUPANCY AND LEASING OF HOME A. The Owner shall occupy the Home as the Owner's principal place of residence within sixty (60) days of close of escrow on the Homebuyer Loan. Failure by the Owner to occupy the Home as the Owner's principal place of residence shall constitute a default under this Agreement for which the City may exercise its option to purchase pursuant to Section 21 below. The Owner shall be considered as occupying the Home if the Owner is living in the unit for at least ten (10) months out of each calendar year. The Owner shall provide an annual written certification in the form shown in the attached Exhibit B, to the City that the Owner is occupying the Home as his or her principal place of residence. 1010\17\443569.2 11279 4. LEASING OF PROPERTY The Owner shall not lease the Property to another party. Any lease of the Property in violation of this Agreement is prohibited, and shall be a default under this Agreement and the City Deed of Trust. The Owner further agrees that, in the event the Owner leases the Property to a third party in violation of this section, any rents in excess of the Owner's monthly housing payment, which includes the principal mortgage payment and interest, property taxes and insurance ("Excess Rental Proceeds ") paid to the Owner by the lessee which exceed the Affordable Rent shall be due and payable to the City immediately upon receipt thereof by the Owner. Such Excess Rental Proceeds shall be considered a recourse debt of the Owner to the City, as evidenced by the Note, which the City may collect by legal action against the Owner and/or by foreclosure under the City Deed of Trust. 5. HOMEBUYER EDUCATION CLASS The Owner shall attend all sessions of a first-time homebuyer education class offered by Community Housing Works 6. MAINTENANCE AND INSURANCE PROCEEDS A. The Owner shall maintain the Home, including landscaping, in good repair and in a neat, clean and orderly condition and will not commit waste or permit deterioration of the Home.. Failure by the Owner to maintain the Home shall constitute a default under this Agreement for which the City may exercise the City Option to purchase the Home pursuant to Section 21 below. B. The Owner shall maintain a standard fire and extended coverage Home insurance policy equal to the replacement value of the Home (adjusted every five (5) years by appraisal, if requested by City), naming the City as an additional insured. Additional insurance requirements are set forth in Section 6 of the City Deed of Trust. 7. TRANSFER AND SALE RESTRICTIONS Any Transfer of the Home will be subject to the provisions of this Agreement including, without limitation, exercise of the City Option pursuant to Section 12 below. "Transfer " shall mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home, including, but not limited to, a fee simple interest, a joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Home is transferred and Owner retains title. Any Transfer without satisfaction of the provisions of this Agreement is prohibited. A Transfer shall not include a transfer: (i) to an existing spouse who is also an obligor under the City Note; (ii) by the Owner to a spouse where the spouse becomes the co-owner of the Home; (iii) between spouses as part of a marriage 1010\17\443569.2 11280 dissolution proceeding; (iv) to an existing spouse of Owner by devise or inheritance following the death of Owner; (v) by Owner into an inter vivos revocable trust in which Owner is the Trustor; (vi) by deed of trust or imposition of a lien subordinate to the City Deed of Trust or (vii) refinance of the First Mortgage meeting the requirements of Section 28 of this Agreement; provided, however, that Owner shall provide written notice of all such transfers to City pursuant to Section 8 below; and Owner shall continue to occupy the Home as his or her principal place of residence (except where the transfer occurs pursuant to subsection (iii) or (iv) above, in which event the transferee shall owner-occupy the Home and affirmatively assume Owner's obligations under this Agreement, the City Note and the City Deed of Trust). 8. NOTICE OF INTENDED TRANSFER A. In the event the Owner intends to transfer (including without limitation all "Transfers " as defined in Section 7) or vacate the Property, the Owner shall promptly give the City written notice of such intent (the "Owner's Notice of Intent to Transfer") in the form shown in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the Property and prior to listing of the Property on the Multiple Listing Service. The Owner's Notice of Intent to Transfer shall be sent to the City in the manner and at the address provided in Section 33 of this Agreement. The Owner's Notice of Intent to Transfer shall include the information necessary for the City to determine the Maximum Restricted Resale Price of the Property, including the following information: (1) the address of the Property; (2) the date of purchase of the Property by the Owner; (3) the Original Affordable Purchase Price of the Property; (4) the Full Purchase Price of the Property (which is the Original Affordable Purchase Price plus the original amount of the Homebuyer Loan). (5) a copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on the Owner's purchase of the Property; (6) the date on which Owner intends to vacate Property; (7) the date the Property will be placed on the market; and (8) the name and phone number of the person to contact to schedule inspection of the Property by the City. 1010\17\443569.2 11281 9. OWNER PREPARATION OF HOME FOR SALE A. The Owner may not wish to contract with a real estate broker to sell the Home until the Owner has received the City Response Notice pursuant to Section 10 below, as the services of a broker will not be required if the City exercises the City Option to purchase the Home pursuant to Section 12 below. B. Following delivery to the City of the Owner's Notice of Intent to Transfer, the Owner shall prepare the Home for sale, as follows: (1) within thirty (30) days of delivery of the Owner's Notice of Intent to Transfer, the Owner shall obtain and deliver to the City a current written report of inspection of the Home by a licensed structural pest control operator; (2) within the sooner of (a) sixty (60) days from the date of delivery of the Owner's Notice of Intent to Transfer, or (b) prior to close of escrow on the Transfer, the Owner shall repair all damage noted in the pest report including damage caused by infestation or infection by wood-destroying pests; (3) within thirty (30) days of the date of the Owner's Notice of Intent to Transfer, the Owner shall allow the City to inspect the Home to determine its physical condition; (4) if the Home is vacant, the Owner shall maintain utility connections until the close of escrow on the Transfer; (5) in the event of purchase of the Property by the City or City Designated Purchaser, the Owner shall permit a final walk-through of the Property by the City or City Designated Purchaser, in the final three (3) days prior to close of escrow on the Transfer. 10. CITY RESPONSE TO OWNER'S NOTICE OF INTENDED TRANSFER City shall respond in writing (the "City Response Notice ") to the Owner's Notice of Intent to Transfer. The form of City Response Notice is attached as Exhibit D. The City Response Notice shall inform the Owner of the City's election to proceed under one (1) of the following two (2) alternatives: A. City Exercise of City Purchase Option. The City Response Notice may notify the Owner that the City or a City Designated Purchaser elects to exercise the City Option to purchase the Home. The City Response Notice shall be sent within thirty (30) days of City receipt of Owner's Notice of Intent to Transfer and shall include the City's calculation of the (i) Maximum Restricted Resale Price pursuant to Section 14 below to be paid by the City or a City Designated Purchaser and (ii) the transaction fee to be paid by the Owner pursuant to Section 12 below. B. Initial Term: Owner Sale at a Restricted Sales Price to Eligible Purchaser. Alternatively, the City Response Notice may notify the Owner that the City or a City Designated 1010\17\443569.2 11282 Purchaser will not exercise the City Option to purchase the Home. In this case, if the Owner has sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this Agreement (the "Initial Term"), the City Response Notice shall tell the Owner that the Owner may proceed to sell the Home to an Eligible Purchaser at a price not to exceed the Maximum Restricted Resale Price, as set forth in Section 14 and pursuant to the procedure set forth in Section 14 below. In this event, the City Response Notice shall include the following information: (1) the maximum qualifying income for an Eligible Purchaser (which shall be the same income category as the Owner at the time of the Owner's purchase); (2) the certifications required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may receive for the Home, calculated by the City pursuant to Section 14 below; (4) whether Homebuyer Program assistance from the City may be available to an Eligible Purchaser, (5) Owner's repayment obligation as required by Section 13. C. Extended Term Owner Sale to Market Purchaser. If the City Response Notice notifies the Owner that the City or a City Designated Purchaser will not exercise the City Option to purchase the Home, and the Owner has sent the Notice of Intent to Transfer between the fifteenth (15th) year of the Term and the end of the Term, (the "Extended Term "), the City Response Notice shall inform Owner that Owner may proceed to sell the Home to a third party at any income level (the "Market Purchaser ") for an unrestricted price. The City Response Notice shall also inform Owner of Owner's repayment obligation as required by Section 13. 11. OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE No later than seven (7) days following the date of the City Response Notice, the Owner shall acknowledge in writing to the City, in the form shown in the attached Exhibit E. that he/she has received the City Response Notice and still intends to Transfer the Home. 12. CITY PURCHASE OPTION A. The Owner agrees that if the Owner decides to Transfer the Home, the City shall have the option to purchase the Home for the Maximum Restricted Resale Price calculated pursuant to Section 14 of this Agreement (the "City Option "). The Owner shall pay the City a transaction fee up to six percent (6%) of the Maximum Restricted Resale Price if the City or a City Designated Purchaser exercises the City Option and purchases the Home. The City Option may be exercised by the City or by a City Designated Purchaser in the City Response Notice. If the City Response Notice notifies the Owner that the City or a City Designated Purchaser will exercise the City Option to purchase the Home, the City or the City Designated Purchaser shall purchase the Home within ninety (90) days of the date of the City Response Notice and title shall be delivered by the Owner to the City by grant deed free and clear of any mortgage or other liens, unless approved in writing by the City. B. The City may assign the City Option to another public agency, a nonprofit corporation, or an Eligible Purchaser selected by the City (any of which shall be referred to herein as a "City Designated Purchaser "). If the City assigns the City Option to a City 1010\17\443569.2 11283 Designated Purchaser, the City Response Notice shall be executed by the City Designated Purchaser and shall notify the Owner that a City Designated Purchaser is exercising the City Option in lieu of the City. C. In the event of exercise of the City Option and purchase of the Home by the City or a City Designated Purchaser, the Owner shall permit a final walk-through of the Home by the City or the City Designated Purchaser in the final three (3) days prior to close of escrow on the Transfer. 13. REPAYMENT OF CITY NOTE Upon any Transfer of the Property, the outstanding principal and interest due under the City Note shall be repaid pursuant to the City Note unless (i) such principal and interest is assumed by an Eligible Purchaser in accordance with Section 9 of the City Note or (ii) the City exercises the City Option to purchase the Home, in which event the outstanding amount of principal and Contingent Interest due under the City Note shall be paid to the City in the form of a credit against the purchase price to be paid by the City to the Owner. Repayment of the City Note shall not affect Owner's obligation to comply with this Agreement, which shall remain in full force and effect following any repayment of the City Note. 14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE The maximum sales price (the "Maximum Restricted Resale Price ") that the Owner shall receive from the resale of the Home from purchase of the Home by the City or City Designated Purchaser or from other sale or Transfer by the Owner when the Owner sends the Notice of Intent to Transfer during the Initial Term shall be the Full Sales Price or the Fair Market Value, whichever is less. A. Full Sales Price. (1) The Full Sales Price of the Home means: (a) the Affordable Sales Price plus (b) the principal and contingent interest then due on the City Note. The Affordable Sales Price means the Original Affordable Purchase Price, as set forth in Recital D to this Agreement, increased by the percentage of increase in the Median Income from the date of the original purchase of the Home by the Owner to the date of receipt by the City of the Owner's Notice of Intent to Transfer "Median Income " shall refer to the median yearly income, adjusted for a household size of four, in San Diego County, as published by the California Department of Housing and Community Development ("HCD "), or, in the event such income determination is no longer published by HCD, or has not been updated for a period of at least eighteen (18) months, the City may use or develop such other reasonable method as it may choose in order to determine the median yearly income in San Diego County. As of the date of Owner's purchase of the Property, the Median Income for a household of four persons is Sixty-Nine Thousand Four Hundred Dollars ($69.400). 1010\17\443569.2 11284 (2) The Affordable Sales Price shall include a downward adjustment, where applicable, in an amount necessary to repair any violations of applicable building, plumbing, electric, fire or housing codes or any other provisions of the City of Carlsbad Building Code, as well as any other repairs needed to put the Home into a "sellable condition". Items necessary to put a Home into sellable condition shall be determined by the City, and may include cleaning, painting and making needed structural, mechanical, electrical, plumbing and fixed appliance repairs and other deferred maintenance repairs. B. Fair Market Value. In certain circumstances it may be necessary to determine the fair market value of the Property without taking account of the resale restrictions imposed by this Agreement (the "Fair Market Value"). These circumstances include but are not limited to: (1) where the parties wish to determine if the Full Sales Price exceeds the Fair Market Value in order to determine the Maximum Restricted Resale Price pursuant to this section; (2) where the parties wish to determine if the sales price of the Home to a Market Purchaser is comparable to the Fair Market Value; and (3) to calculate the amount due under the City Note at the end of the term of the City Note or upon prepayment. If it is necessary to determine the Fair Market Value of the Property, it shall be determined by a certified MAI or other qualified real estate appraiser approved in advance by the City. If possible, the appraisal shall be based upon the sales prices of comparable properties sold in the market area during the preceding three (3)-month period. The cost of the appraisal shall be paid by the Owner, unless the appraisal is obtained from a new purchaser. Nothing in this section shall preclude the Owner and the City from establishing the Fair Market Value of the Property by mutual agreement in lieu of an appraisal pursuant to this section. 15. SALE BY OWNER DURING INITIAL TERM IF CITY DOES NOT EXERCISE OPTION TO PURCHASE In the event the City Response Notice notifies the Owner to proceed to sell the Home to an Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the Owner may proceed to sell the Home in compliance with the following requirements: A. Marketing. The Owner shall use bona fide good faith efforts to sell the Home to an Eligible Purchaser in compliance with this section, including listing the Home on the Multiple Listing Service, keeping the Home in an orderly condition, making the Home available to show to agents and prospective buyers, and providing buyers with Eligible Purchaser requirements, including income qualifications and the City's form of disclosure statement summarizing the terms of the buyer's occupancy and resale restriction agreement with option to purchase. A proposed purchaser ("Proposed Purchaser ") who the Owner believes will qualify as an Eligible Purchaser shall be referred to the City for an eligibility determination. If the Proposed Purchaser qualifies as an Eligible Purchaser the City will also determine if such Eligible Purchaser is eligible for City housing-related financial assistance that may be available at the time of resale. B. Eligible Purchaser. A Proposed Purchaser shall qualify as an "Eligible Purchaser "if he or she meets the following requirements, as determined by the City: 1010\17\443569.2 10 11285 (1) Income Eligibility. The combined maximum income for all household members of the Proposed Purchaser shall not exceed the income level designated by the City in the City Response Notice. (2) Intent to Owner Occupy. The Proposed Purchaser shall certify that he or she will occupy the Home as to his or her principal place of residence throughout his or her ownership. Co-signers are not required to occupy the Home. (3) Agreement to Sign Resale Restriction Agreement and to Cooperate with the City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting future resale of the Home and shall agree to cooperate fully with the City in promptly providing all information requested by the City to assist the City in monitoring the Proposed Purchaser's compliance with the resale restriction agreement. C. Maximum Restricted Resale Price. The purchase price for the sale of the Home by the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price calculated by the City pursuant to Section 14 above, as set forth in the City Response Notice. The closing costs paid by the Eligible Purchaser shall not exceed reasonable customary buyer's closing costs in the County of San Diego. Pursuant to Section 13 of this Agreement and Section 9 of the City Note, the Eligible Purchaser may assume the Homebuyer Loan and the effective purchase price that the Eligible Purchaser will pay for the Home is likely to be the Affordable Sales Price. D. Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide the following information and documents to the City: (1) The name, address and telephone number in writing of the Proposed Purchaser. (2) A signed financial statement of the Proposed Purchaser in a form acceptable to the City and any other supporting documentation requested by the City. The financial information shall be used by the City to determine the income eligibility of the Proposed Purchaser. (3) The proposed sales contract and all other related documents which shall set forth all the terms of the sale of the Home. Said documents shall include at least the following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for the Owner's personal Home, if any, for the services of the Owner, if any, and any credits, allowances or other consideration, if any. (4) A written certification, from the Owner and the Proposed Purchaser in a form acceptable to the City that the sale shall be closed in accordance with the terms of the sales contract and other documents submitted to and approved by the City. The certification shall also provide that the Proposed Purchaser or any other party has not paid and will not pay to the Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any other party, money or other consideration, including personal property, in addition to what is set 1010\17\443569.2 11 11286 forth in the sales contract and documents submitted to the City. The written certification shall also include a provision that in the event a Transfer is made in violation of the terms of this Agreement or false or misleading statements are made in any documents or certification submitted to the City, the City shall have the right to foreclose on the Home or file an action at law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred by the Owner and the Proposed Purchaser for the return of any moneys paid or received in violation of this Agreement or for any of the Owner's and/or the Proposed Purchaser's costs and legal expenses, shall be borne by the Owner and/or the Proposed Purchaser and they shall hold the City harmless and reimburse the City's expenses, legal fees and costs for any action they reasonably take in good faith in enforcing the terms of this Agreement. (5) An executed buyer's resale agreement and deed of trust to the City from the Proposed Purchaser in forms provided by the City. If the Proposed Purchaser is receiving assistance from the Homebuyer Program, a promissory note to the City shall also be required. The recordation of the new deed of trust and buyer's resale agreement shall be a condition of the City's approval of the proposed sale. (6) The name of the title company escrow holder for the sale of the Home, the escrow number, and name, address, and phone number of the escrow officer. (7) Upon the close of the proposed sale, certified copies of the recorded City deed of trust and buyer's resale agreement, a copy of the final sales contract, settlement statement, escrow instructions, and any other documents which the City may reasonably request. 16. PAYMENT TO CITY OF EXCESS SALES PROCEEDS If the Owner makes a Transfer in violation of this Agreement at any time during the Initial Term or Extended Term, the Owner shall pay the Excess Sales Proceeds to the City. If the Owner Transfers the Home in violation of this Agreement, the Appreciation Amount (as such term is defined in the City Note) shall be calculated using the Maximum Restricted Resale Price of the Home, rather than the actual sales price. For purposes of this Agreement, "Excess Sales Proceeds " shall mean ninety-four percent (94%) of the amount by which the gross sales proceeds received by the Owner from the new purchaser exceed the Maximum Restricted Resale Price for the Home. This amount shall be a debt of the Owner to the City, further evidenced by the City Note, and secured by the City Deed of Trust. The Owner acknowledges that the City shall have no obligation to cause reconveyance of this Agreement or of the City Deed of Trust until the Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales Proceeds for City affordable housing programs. The Owner and the City acknowledge that the formula for calculation of the amount of Excess Sales Proceeds due from the Owner to the City is intended to cause the Owner to receive the same net sales proceeds (following payment by Owner of a standard broker's commission) from sale of the Home at an unrestricted price to a market purchaser (in violation of this Agreement) as the Owner would receive from sale of the Home to the City, City Designated Purchaser or to an Eligible Purchaser at the Maximum Restricted Resale Price. 1010\17\443569.2 12 11287 17. SALE OF PROPERTY BY OWNER DURING EXTENDED TERM In the event the City Response Notice notifies the Owner to proceed to sell the Home to a Market Purchaser at a price greater than or equal to the Fair Market Value of the Home, the Owner may proceed to sell the Home in compliance with the following requirements: Upon any sale of the Home, the Owner shall submit to the City at least fifteen (15) days prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a written declaration, under penalty of perjury, from the Owner and the proposed purchaser in a form acceptable to the City stating the gross sales price of the Home. The certification shall also provide that the proposed purchaser or any other party has not paid and will not pay to the Owner, and the Owner has not received and will not receive from the proposed purchaser or any other party, money or other consideration, including personal property, in addition to what is set forth in the sales contract. At close of escrow, Owner shall submit to the City a copy of the HUD-1 Settlement Statement showing the purchase price paid for the Home. 18. DEFAULTS A. The following events shall constitute a Default by the Owner under this Agreement: (1) The City determines that the Owner has made a misrepresentation to obtain the benefits of purchase of the Home or in connection with its obligations under this Agreement; (2) The Owner fails to owner occupy the home, as required pursuant to Section 3 above, and such failure continues following written notice by the City and sixty (60) days opportunity to cure following the date of such notice. (3) The Owner rents the Home in violation of Section 4 above, and such failure continues following written notice by the City and sixty (60) days opportunity to cure. (4) The Owner fails to provide information to the City necessary to determine Owner's compliance with the requirements of this Agreement. (5) The Owner makes a Transfer in violation of this Agreement; (6) The Owner otherwise fails to comply with the requirements of this Agreement and such violation is not corrected to the satisfaction of the City within ten (10) days after the date of written notice by the City to the Owner of such violation; or (7) A notice of default is issued under First Lender Loan or other financing secured by the Home. 1010\17\443569.2 13 11288 (8) A lien is recorded against the Home other than the lien of a bona fide mortgage loan. (9) Owner places a mortgage on the Home in violation of Section 28 below. (10) Owner declares bankruptcy or makes an assignment of assets for the benefit of creditors. B. Upon a declaration of Default by the City under this Agreement, the City may exercise any remedies at law or in equity, including without limitation, any or all of the following: (1) Declare all Excess Sales Proceeds immediately due and payable without further demand, accelerate payments due under the City Note and invoke the power of sale under the City Deed of Trust; (2) Apply to a court of competent jurisdiction for such relief at law or in equity as may be appropriate; (3) Declare a Default under the City Note and the City Deed of Trust and pursue all City remedies under the City Note and the City Deed of Trust; and (4) Exercise the City Option upon Default as described in Section 21 below. 19. NOTICE AND CURE Upon Default or a violation of any of the provisions of this Agreement, the City may give written notice to the Owner specifying the nature of the violation. If the violation is not corrected to the satisfaction of the City within a reasonable period of time, not longer than thirty (30) days after the date the notice is mailed, or within such further time as the City determines is necessary to correct the violation, or if the Owner is in default under any other mortgage loan on the Home, the City may declare a default under this Agreement. The City shall notify First Lender at the address provided by the First Lender to the City in the manner set forth in Section 33 of this Agreement, if the City has declared a default under this Agreement or under the City Note or City Deed of Trust. 20. NOTICE TO CITY OF DEFAULT A request for notice of default and any notice of sale under any deed of trust or mortgage with power of sale encumbering the Home shall be recorded by the City in the Office of the Recorder of the County of San Diego for the benefit of the City. The City may declare a default 1010\17\443569.2 14 11289 under this Agreement upon receipt of any notice given to the City pursuant to Civil Code Section 2924b, and may exercise its rights as provide in Sections 18 and 21. In the event of default and foreclosure under the First Lender Loan or any other mortgage loan on the Home, the City shall have the same right as the Owner to cure defaults and redeem the Home prior to the foreclosure sale. Nothing herein shall be construed as creating any obligation of the City to cure any such default, nor shall this right to cure and redeem operate to extend any time limitations in the default provisions of the underlying deed of trust or mortgage. If the City failed to file the request for notice of default, the City's right to purchase the Home shall commence from the date a notice of default is given by the City to the Owner. 21. PURCHASE OPTION UPON DEFAULT A. Purchase Option. Notwithstanding, and in addition to, the remedies provided the City in Section 18, and the City Option provided in Section 12, the Owner hereby grants to the City or the City Designated Purchaser the option to purchase the Home effective upon the declaration of a default by the City pursuant to Section 18 and Section 19 above, and subject to notice and cure rights set forth in Section 19. Said option to purchase is given in consideration of the economic benefits received by the Owner resulting from ownership of the Home made possible by the financial assistance of the City in the purchase of the Home. B. Exercise of Option. The option to purchase may be exercised upon a default under this Agreement or upon default under any promissory note, deed of trust or any other lien, including a judgment lien, recorded against the Home. The City shall have thirty (30) days after a default is declared to notify the Owner and the First Lender of its decision to exercise its option to purchase. Not later than ninety (90) days after the notice is given by the City to the Owner of the City's intent to exercise its option, the City shall purchase the Home for the Maximum Restricted Resale Price set forth in Section 14. The City may assign its rights to purchase the Home under this section to a City Designated Purchaser. 22. NONLIABILITY OF THE CITY A. No Obligation to Exercise Option. The City shall have no obligation to exercise any option granted it under this Agreement. In no event shall the City become in any way liable or obligated to the Owner or any successor-in-interest to the Owner by reason of its option to purchase under Sections 12 and 21 nor shall the City be in any way obligated or liable to the Owner or any successor-in-interest to the Owner for any failure to exercise its option to purchase. B. Nonliability for Negligence, Loss, or Damage. Owner acknowledges, understands and agrees that the relationship between Owner and the City is solely that of an owner and an administrator of a City inclusionary housing program, and that the City does not undertake or assume any responsibility for or duty to Owner to select, review, inspect, supervise, 1010\17\443569.2 15 11290 pass judgment on, or inform Owner of the quality, adequacy or suitability of the Property or any other matter. The City owes no duty of care to protect Owner against negligent, faulty, inadequate or defective building or construction or any condition of the Property and Owner agrees that neither Owner, or Owner's heirs, successors or assigns shall ever claim, have or assert any right or action against the City for any loss, damage or other matter arising out of or resulting from any condition of the Property and will hold the City harmless from any liability, loss or damage for these things. C. Indemnity. Owner agrees to defend, indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees that the City may incur as a direct or indirect consequence of: (1) Owner's default, performance, or failure to perform any obligations as and when required by this Agreement or the Deed of Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and correct. 23. RESTRICTIONS ON FORECLOSURE PROCEEDS If a creditor acquires title to the Home through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the extent that such proceeds otherwise payable to the Owner when added to the proceeds paid or credited to the creditor exceed the Maximum Restricted Resale Price. The Owner shall instruct the holder of such excess proceeds (in addition to other amounts due to the City pursuant to the City Note and this Agreement) to pay such proceeds to the City in consideration of the benefits received by the Owner through purchase of the Home under this Agreement. 24. RESTRICTION ON INSURANCE PROCEEDS If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the Home, the Owner shall pay the City the portion of any insurance proceeds received by the Owner for such destruction or damage which is in excess of the Maximum Restricted Resale Price calculated pursuant to Section 14 above. 25. TERM OF AGREEMENT All the provisions of this Agreement, including the benefits and burdens, run with the land and the Home and this Agreement shall bind, and the benefit hereof shall inure to, the Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to the City and its successors until the earlier of (i) thirty (30) years from the date of recordation of this Agreement or (ii) the date of Transfer of the Property to the City or another purchaser in compliance with this Agreement (including execution by the purchaser of a new resale restriction agreement for the benefit of the City). 1010\17\443569.2 16 11291 26. SUPERIORITY OF AGREEMENT The Owner covenants that he or she has not, and will not, execute any other agreement with provisions contradictory to or in opposition to the provisions of this Agreement hereof, and that, in any event, this Agreement is controlling as to the rights and obligations between and among the Owner, the City and their respective successors. 27. SUBORDINATION Notwithstanding any other provision hereof, the provisions of this Agreement shall be subordinate to the lien of the First Lender Loan and shall not impair the rights of the First Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure, this Agreement shall be forever terminated and shall have no further effect as to the Home or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Home pursuant to a deed or assignment in lieu of foreclosure, this Agreement shall automatically terminate upon such acquisition of title, provided that (i) the City has been given written notice of default under such First Lender Deed of Trust and (ii) the City shall not have cured or commenced to cure the default within such thirty (30)-day period and given its firm commitment to complete the cure in the form and substance acceptable to the First Lender. Owner agrees to record any necessary documents to effect such termination, if applicable. 28. REFINANCE OF FIRST LENDER LOAN The outstanding principal on the City Note shall not be due upon prepayment and refinancing of the First Lender Loan, and this Agreement and the City Deed of Trust shall be subordinated to the refinanced First Lender Loan, provided that (i) such refinancing is approved by the City, (ii) the amount refinanced does not exceed the outstanding principal balance of the First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii) the refinance does not result in higher monthly payments on the First Lender Loan than were due prior to the refinance. Mortgage loans or equity lines of credit junior in lien priority to the City deed of trust are not permitted. The City and the Owner agree that the requirements of this section are necessary to ensure the continued affordability of the Property to Owner and to minimize the risk of loss of the Property by Owner through default and foreclosure of mortgage loans. Owner further acknowledges that violation of the provisions of this section shall constitute a Default under this Agreement. A form for use by the Owner in requesting City subordination to a refinanced First Lender Loan is attached hereto as Exhibit F. 1010\17\443569.2 17 11292 29. NONDISCRIMINATION The Owner covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the Owner or any person claiming under or through the Owner establish or permit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Home. The foregoing covenant shall run with the land. 30. RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS This Agreement shall not diminish or affect the rights of the City under the City Note and the City Deed of Trust. Notwithstanding any other provision in this Agreement to the contrary, this Agreement. shall not diminish or affect the rights of the California Housing Finance Agency ("CHFA "), the United States Department of Housing and Urban Development ( "HUD "), the Federal National Mortgage Association ("FNMA "), or the Veterans Administration ("VA ") under the First Lender Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the Home in compliance with Section 28 above. 31. HUD FORBEARANCE RELIEF Notwithstanding other provisions of this Agreement, the Option shall not be exercised by the City when a deed of trust insured by HUD is secured by the Home, and (i) the Owner is undergoing consideration by HUD for assignment forbearance relief, or (ii) the Owner is undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment (TMAP) program. 32. INVALID PROVISIONS If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 33. NOTICES All notices required herein shall be sent by certified mail, return receipt requested or express delivery service with a delivery receipt or personally delivered with delivery receipt 1010\17X443569.2 18 11293 obtained and shall be deemed to be effective as of the date shown on he delivery receipt as the date of delivery, or the date delivery was refused as indicated on the return receipt, or the date Notice was returned as undeliverable as follows: To the Owner: At the address of the Home. To the City: City of Carlsbad Housing and Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 Attn: Homebuyer Program To the First Lender: Bank of America 13520 Evening Creek Drive, Suite 140 San Diego, CA 92128 The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. 34. INTERPRETATION OF AGREEMENT The terms of this Agreement shall be interpreted so as to avoid speculation on the Home and to insure to the extent possible that the mortgage payments remain affordable to low and moderate income households. 35. CONTROLLING LAW The terms of this Agreement shall be interpreted under the laws of the State of California. 36. EXHIBITS Any exhibits referred to in this Agreement are incorporated in this Agreement by such reference. 1010\17\443569.2 19 11294 IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date first written above. CITY: City of Carlsbad, a municipal corporation a municipal corporatior By: Name: J.TSA HTT.nARRAND Title: ASSISTANT CITY MANAGER OWNER: Print Name c Stature Print Name Signature 1010\17\443569.2 20 11295 STATE OF CALIFORNIA COUNTY OF ) ) ss. ) before me, tho undorsignod, a Notary Public, perscnall appeared me (or proved to me on the basis or satisfactory evidejzce) to be the person(s) whose name(s) (jg/are subscribed to the within instrument, and acknowledged to me that^'she/they executed the same inshfs^>er/their authorized capacity(ies), and that by hjs^her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal MARY ANNE KELLER COMMJ1601454 nNOTARY PUBLIC-CALIFORNIA J"SAN DIEGO COUNTY .MYCOMM. EXP. SEPT. 15,20097 STATE OF CALIFORNIA COUNTY OF 0 1 eap ) ss. On 3d as, personally appeared L> SCL \4-\ me (or proved to me on the basis of satisfactory L. , 2007, before me, the nndersigaed, a Notary Public, , personally known to •ddence} to be the person(^whose is/af» subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/thek authorized capacity(t£g£ and that by his/her/their signature($(pn the instrument the person^ or the entity upon behalf of which the person'(^acted, executed the instrument. WITNESS my hand and official seal. L CRE9CEMI Commwon* 1661400 Notary fctte • Com**) tanOtgoCounV mSSi OtogoCounV f ^^^^jyy«^i4WlUf 1010\17\443569.2 File No: 08920641 . ' 11296 EXHIBIT "A" All that certain real property situated in the County of San Diego, State of California, described as follows: A Condominium comprised of: PARCEL 1: That portion of Lot 1, of Carlsbad Tract No. 02-18, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 15346, filed in the Office of the County Recorder of San Diego, California, May 19, 2006 as defined as Unit No. 502 of Module 1 on that certain Condominium Plan ("Plan") recorded on February 27, 2007 as File No. 2007-0133007, and any amendments thereto, in the Official Records of said County. PARCEL 2: An undivided l/27th fee simple interest as tenant in common in and to the common area of Module 1 of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, as more particularly described and delineated on the Condominium Plan referred to above. EXCEPTING THEREFORM, units 101 through 104, inclusive, 201 through 204, inclusive, 301 through 304, inclusive, and 401 through 405, inclusive, and 501 through 510, inclusive, as shown and defined on the Condominium Plan recorded February 27, 2007 as File No. 2007-0133007, and any amendments thereto, of Official Records. RESERVING THEREFROM, exclusive easements for patios, and/or parking spaces over and across those portions of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, shown and defined as "Exclusive Use Common Area" on the Condominium Plan referred to above. PARCELS: An exclusive easement, appurtenant to Parcel 1 above, for all uses and purposes of patios, and/or parking spaces across that portion of the common area property within Module 1 of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, bearing the same number designation as the Unit referred to in Parcel 1 above, shown and defined as an "Exclusive Use Easement Area" on the Condominium Plan referred to above. RESERVING THEREFROM, for the benefit of Grantor, its successors in interest and others, easements for access, use, enjoyment, construction, repairs, drainage, and for other purposes, all as more fully described in the Declaration of Covenants, Conditions and Restrictions for The Bluffs At Carlsbad Homeowners Association recorded on February 27, 2007 as File No. 2007-0133008, of Official Records, and all amendments and supplements thereto. Assessor's Parcel Number: 206-120-41 UU Wl'lll UIHfcR PKUPfckfV 11297 EXHIBIT B Form of Owner Occupancy Certification To: City of Carlsbad ("City") From: Address of Home: Date: [name of owner(s)] ("Owner(s)") ("Property") By signature below, I [insert name or names of Owner] hereby certify to the City under penalty of perjury that I/we occupy the home located at [insert address] (the "Home") as my/our principal place of residence and that I/we have occupied the Home for ( ) [insert number] months of the calendar year [insert previous calendar year]. Attached to this letter is a copy of [insert utility bill or driver's license] showing my place of residence. This Owner Occupancy Certification is signed on perjury. , 20 , under penalty of Due Date:of each calendar year. By:. By:_ Owner [type name] Owner [type name] Attach copy of utility bill or driver's license showing address of Home. B-l 1010\17\443569.2 11298 EXHIBIT C Form of Owner's Notice of Intent to Transfer To: City of Carlsbad ("City ") From: [name of owner(s)] ("Owner(s)") Address of Home: ("Property") Date: Please be notified pursuant to Section 8 of the Resale Restriction Agreement and Option to Purchase between Owner and City dated , that the Owner intends to transfer the Property listed above. A. The following information is provided to the City pursuant to Section 8 of the Resale Agreement: 1. Address of Property: 2. Date Owner purchased Property: 3. Original Affordable Purchase Price: 4. Original amount of Homebuyer Loan: 5. Full Purchase Price: 6. Date Owner intends to vacate Property: 7.. Date Property will be placed on market: 8. Name and phone number of person for City to contact to schedule inspection: and (name) (phone number) B. As required by Section 8 of the Resale Agreement, the following the HUD-1 Settlement Statement from Owner's purchase of the property is attached. C. I have not yet listed the Property for sale with a multiple listing service, or contacted a real estate broker or financial institution. I agree to prepare the Property for sale by: C-l 1010\17\443569.2 11299 1. obtaining a pest control report within thirty (30) days of the date of this notice, 2. repairing all damage noted in the pest report within the sooner of: (i) sixty (60) days from the date of this notice, or (ii) two (2) weeks prior to close of escrow or the transfer of the Property, 3. allowing the City or its designee to inspect the Property within thirty (30) days of this notice, 4. maintaining utility connections until the Property is transferred, 5. permitting a walk through by the City prior to close of escrow or the transfer. This Owner's Notice of Intent to Transfer is certified by Owner to be true and correct and is signed on [insert date] under penalty of perjury. By:_ Owner By:. Owner C-2 1010\17\443569.2 11300 EXHIBIT D FORM OF CITY RESPONSE NOTICE To: ("Owner") From: The City of Carlsbad (the "City") Address of Home: ("Home ") Date: Thank you for delivering the Notice of Intent to Transfer. This letter is the City Response Notice described in Section 10 of the Resale Agreement that was recorded against title to your home. The City: 1. City will check this Sentence #1 and complete other information listed in #1 if the City intends to exercise its option to purchase the Home or assign its option the Home to a Designated Purchaser at any point during the entire Term of Resale Agreement A. Affordable Sales Price: $ B. Amount owed on Homebuyer Loan: $ C. Full Sales Price (add numbers in 1 (A) and 1 (B)): $ D. Fair Market Value (as estimated by the City): $ The Price for which you may sell your Home (or the Maximum Restricted Resale Price) (the greater of 1(C) and 1(D)): $ In connection with the City's Option, you will owe a $ to City. If the City has assigned its option, the name of Designated Purchaser is The City or its Designated Purchaser will follow up with you to complete the sale of your Home. If a Designated Purchaser purchases your Home, that Designated purchaser may assume the D-l 1010\17\443569.2 11301 amount you owe on the Homebuyer Loan. If the City purchases your home the amount you owe on the Homebuyer Loan shall credited against the purchase price e paid by the City. 2. City will check this Sentence #2 and complete other information listed in #2 if the City intends for Owner to sell the Home to an Eligible Purchase during years 1-15 of the Resale Agreement. A. Affordable Sales Price: $ B. Amount owed on Homebuyer Loan: $ C. Full Sales Price (add numbers in 1 (A) and 1 (B)): $_ D. Fair Market Value (as estimated by the City): $ The total rice for which you may sell your Home (or the Maximum Restricted Resale Price) (the greater of 1 (C) and 1 (D)): $ As noted in 2(B) above, the amount owed on the Homebuyer Loan is $ . An Eligible Purchaser is likely to assume the City Note and will then agree to repay the amount of the Homebuyer Loan. You must market your home to an "Eligible Purchaser" as required by Section 15 of the Resale Agreement. The Maximum Qualifying Income of Eligible Purchaser is: Low Income Household 1 person household $ 2 person household $ 3 person household $ 4 person household $ 5 person household $ 6 person household $ Moderate Income Household 1 person household $_ D-2 1010\17\443569.2 11302 2 person household $_ 3 person household $ 4 person household $ 5 person household $_ 6 person household $_ When you locate a proposed purchaser of your Home, you must provide the City with the information listed in Section 15(B) of the Resale Agreement and 15(D)(1) through (4). Upon sale of your home to a proposed purchaser who has been approved by the City as an Eligible Purchaser, you must provide the information required by Section 15(D)(5) through (7). 3. The City will check this Sentence #3 if it does not wish to exercise or assign its option to purchase the Home between the 16th year of the Resale Agreement and the end of the Term. At this point you may proceed to sell your Home to a third party for a market price. Upon sale of the Home, you must provide the City with the information required by Section 17 of the Resale Agreement. You also you must repay $ to the City as required by the City Promissory Note. City: Name: Title: _ Date: Designated Purchaser (if applicable): Name: Date: All questions regarding this notice should be directed to D-3 1010\17\443569.2 11303 EXHIBIT E Form of Owner Acknowledgement of City Response Notice Name: Address of Property: Date: I, [insert name] hereby acknowledge that I received the City Response Notice (as described in Section 10 of the Resale Agreement on [insert date]. By: E-l 1010\17\443569.2 11304 EXHIBIT F Form of Owner Request for City Subordination to Refinanced First Lender Loan To: City of Carlsbad ("City") From: ("Owner") Property Address: ("Property") Date: The Owner hereby requests the City to approve the Owner's refinance of the existing first mortgage on the Property. The Owner provides the following information which it certifies to be true and correct: 1. Original Affordable Purchase Price of Property: $ 2. Original Homebuyer Loan Amount 3. Full Purchase Price of Property (1 plus 2) $ 3. Original principal balance of existing First Lender Loan: $ 4. Interest rate of existing First Lender Loan: $ 5. Outstanding principal balance of existing First Lender Loan: $ 6. Monthly payments due on existing First Lender Loan $ 7. Principal amount of proposed new First Lender Loan: $ 8. Interest rate of Proposed new First Lender Loan: $ 9. Monthly payments to be due on new First Lender Loan: $ The Owner hereby certifies the above information is true and correct and this Owner Request is executed under penalty of perjury on [insert date]. By: Owner By: Owner F-l 1010\17\443569.2 RECORDING REQUESTED BY: City of Carlsbad AND WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office Attn: City Clerk 1 200 Carlsbad Village Drive Carlsbad, California 92008 A>r, ' ^f DQC# 2008-0271508 MAY 20, 2008 2:37 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 0.00 PAGES: REQUEST FOR NOTICE Space above this line for Recorder's use FILE NO.: 6051578026 In accordance with Civil Code, section 2924b, request is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as Instrument No. 2007-0590238 on September 6, 2007, in Book N/A . Page N/A. of Official Records in the County Recorder's Office of San Diego County, California, executed by CHRISTOPHER M. DONEZ as Trustor in which BANK OF AMERICA. N.A.. A NATIONAL BANKING ASSOCIATION is named as Beneficiary, and PRLAP. INC.. as Trustee, be mailed to: Village Drive, Carlsbad. California 92008 > City of Carlsbad, City Clerk's Office, 1200 Carlsbad NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this recorded request. If your address changes, a new request must be recorded. Dated: Febru JAMES K. SLMOTT DEPUTYWlT/7 MANAGER STATE OF CALIFORNIA} ss COUNTY OF SAN DIEGO ) on f\Aay 9, 9005? before me Personally appeared F. Who proved to me on the basis of satisfactory evidence to be the personal whose name(^ is/aw subscribed to the within instrument and acknowledged to me that he/stie/they executed the same in his/herithefr authorized capacity(te8$, and that by his/hor/theif signature^^on the instrument the person^) or the entity upon behalf of which the person^^acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal r" Signature ASA Form #018 cnescENn CommWan* 1661400 Notaiy Pubte - CaWdmla ten Otogo County MyCcmm.e0wMw24.aoii File No: 08920641 . ' 11296 EXHIBIT "A" All that certain real property situated in the County of San Diego, State of California, described as follows: A Condominium comprised of: PARCEL 1: That portion of Lot 1, of Carlsbad Tract No. 02-18, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 15346, filed in the Office of the County Recorder of San Diego, California, May 19, 2006 as defined as Unit No. 502 of Module 1 on that certain Condominium Plan ("Plan") recorded on February 27, 2007 as File No. 2007-0133007, and any amendments thereto, in the Official Records of said County. PARCEL 2: An undivided l/27th fee simple interest as tenant in common in and to the common area of Module 1 of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, as more particularly described and delineated on the Condominium Plan referred to above. EXCEPTING THEREFORM, units 101 through 104, inclusive, 201 through 204, inclusive, 301 through 304, inclusive, and 401 through 405, inclusive, and 501 through 510, inclusive, as shown and defined on the Condominium Plan recorded February 27, 2007 as File No. 2007-0133007, and any amendments thereto, of Official Records. RESERVING THEREFROM, exclusive easements for patios, and/or parking spaces over and across those portions of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, shown and defined as "Exclusive Use Common Area" on the Condominium Plan referred to above, PARCEL 3: An exclusive easement, appurtenant to Parcel 1 above, for all uses and purposes of patios, and/or parking spaces across that portion of the common area property within Module 1 of Lot 1 of Carlsbad Tract No. 02-18 according to Map No. 15346, bearing the same number designation as the Unit referred to in Parcel 1 above, shown and defined as an "Exclusive Use Easement Area" on the Condominium Plan referred to above. RESERVING THEREFROM, for the benefit of Grantor, its successors in interest and others, easements for access, use, enjoyment, construction, repairs, drainage, and for other purposes, all as more fully described in the Declaration of Covenants, Conditions and Restrictions for The Bluffs At Carlsbad Homeowners Association recorded on February 27, 2007 as File No. 2007-0133008, of Official Records, and all amendments and supplements thereto. - Assessor's Parcel Number: 206-120-41 UU WllH UIHhR PKUPbRFV