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HomeMy WebLinkAboutSuttle, Leslie Joan; 2000-04-03;NOTICE TO BORROWER: THE CLIFFS AT CALAVERA HILLS THIS NOTE IS NOT ASSUMABLE PROMISSORY NOTE Secured by Deed of Trust $ 45,000 Carlsbad, California April 3, 2000 FOR VALUE RECEIVED, the undersigned Leslie Joan Suttle (the "Borrower") promises to pay to the City of Carlsbad, a municipal corporation (the "City"), or order, at the Housing and Redevelopment Department, 2965 Roosevelt Street, Suite B, Carlsbad, California 92008, or such other place as the City may designate in writing, the principal sum of $45,000, plus Contingent Interest calculated pursuant to Section 4 below. 1. Purpose of Loan. Borrower is purchasing the Residence located at 2919 Cliff Circle, in the City of Carlsbad. This Note evidences a seller carryback loan made by the Seller of the Residence (the "Seller") to the Borrower, and assigned by the Seller to the City (the "City/Seller Loan"). The City/Seller Loan is in the amount determined by the City to be necessary for the Borrower to afford to purchase the Residence making a reasonable downpayment for the balance of the purchase price not financed by the City/Seller Loan. The Seller made the City/Seller Loan to the Borrower and assigned the City/Seller Loan to the City in fulfillment of the inclusionary housing obligations of the Seller pursuant to City Ordinance No. NS-232 and an Affordable Housing Agreement between the Seller and the City dated , 199_. 2. Definitions. The terms set forth in this Section shall have the following meanings in this Note. (a) "Appreciation Amount" shall mean the amount calculated by subtracting the total original purchase price of the Residence paid by the Borrower, which was One Hundred Eighty Eight Thousand Seven Hundred Forty Three Dollars ($188,743.00), from one of the following amounts, as applicable: (i) in the event of a sale of the Residence, the amount received by the Borrower as the sale price of the Residence, as certified by the Borrower pursuant to Section 12 below; or (ii) in the event of a prepayment of this Note, a Transfer other than sale of the Residence, or in the event of a default, the Fair Market Value of the Residence; or (iii) in the event a creditor acquires title to the Residence through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the amount paid for the Residence at a creditor's sale of the Residence. 1 (b) "Contingent Interest" shall mean the percentage of the Appreciation Amount set out in Section 4. (c) "Fair Market Value" shall be determined by a real estate appraisal made by an independent residential appraiser designated 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-month period. The cost of the appraisal shall be paid by the Borrower. Nothing in this subparagraph shall preclude the Borrower and the City from establishing the Fair Market Value of the Residence by mutual agreement in lieu of an appraisal. (d) "Residence" shall mean the housing unit and land encumbered by the deed of trust executed in connection with this Note. (e) "Transfer" shall mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Residence, including, but not limited to, a fee simple interest, a joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or an interest evidenced by a land contract by which possession of the Residence is transferred and the Borrower retains title. Any Transfer without satisfaction of the provisions of this Note is prohibited. A transfer: (i) to an existing spouse who is also an obligor under the Note; (ii) by a Borrower to a spouse where the spouse becomes the co-owner of the Residence; (iii) between spouses as part of a marriage dissolution proceeding; (iv) to an existing spouse or child of the Borrower by devise or inheritance following the death of the Borrower; (v) by the Borrower into an inter vivos trust in which the Borrower is the beneficiary; or (vi) by deed of trust or imposition of a lien subordinate to the Deed of Trust, shall not be considered a Transfer for the purposes of this Note; provided, however, that the Borrower shall continue to occupy the Residence as his or her principal place of residence and the Borrower shall provide written notice of such transfer to the Agency pursuant to Section 13 below. 3. Security. This Note is secured by a deed of trust dated the same date as this Note (the "Deed of Trust"). 4. Contingent Interest. The Borrower shall pay contingent interest equal to Twenty Four Point Nineteen percent (24.19%) of the Appreciation Amount (the "Contingent Interest"). No interest other than Contingent Interest shall be due hereunder. The Contingent Interest shall be paid to the City at the time set forth in Section 7(a) below, unless forgiven by the City pursuant to Section 7(b) below. Borrower acknowledges, that the Contingent Interest percentage amount is equal to the City/Seller Loan principal amount as a percentage of the total purchase price of the Home paid by the Borrower at the time of purchase, multiplied by seventy-five one hundredths (.75). Borrower acknowledges that this calculation of the percentage of the Appreciation Amount due to the City as Contingent Interest includes a twenty-five percent (25%) discount to Borrower to account for any capital improvements Borrower may make to the Residence. 5. Term. The Term of this Note shall mean the period commencing on the date of this Note and expiring on the date thirty (30) years thereafter. 6. Owner-Occupancy Required; Representations Regarding Income. (a) The Borrower is required to occupy the Residence as his or her principal place of residence, and failure by the Borrower to comply with this requirement shall be a default under this Note. The Borrower shall be considered as occupying the Residence if the Borrower is living in the Residence for at least ten (10) months out of each calendar year. The Borrower shall provide an annual written certification to the City that the Borrower is occupying the Residence as his or her principal place of residence. The Borrower shall not lease the Home to another party. Any lease of the Residence shall be a default under this Note. (b) Borrower hereby certifies that all income information previously submitted to the Seller and/or the City is true and correct. Misrepresentation by Borrower of income information provided to the Seller and/or the City shall be a default under this Note. 7. Repayment. (a) The total amount of the principal and any Contingent Interest owed under this Note shall immediately become due and payable (i) in the event of a default by the Borrower under this Note or the Deed of Trust, (ii) on the date Transfer is made whether voluntarily, involuntarily, or by operation of law and whether by deed, contract of sale, gift, devise, bequest or otherwise, (iii) in the event Borrower ceases to occupy the Residence as his or her principal place of residence; or (iv) at the end of the Term of this Note as described above in Section 5. Failure to declare such amounts due shall not constitute a waiver on the part of the City to declare them due in the event of a subsequent Transfer. (b) In the event, upon expiration of the Term, (i) no Transfer has occurred, (ii) Borrower has repaid all principal pursuant to section (a) above, (iii) Borrower continues to owner-occupy the Residence, and (iv) Borrower is not in default hereunder or under the Deed of Trust, the City shall forgive repayment of all Contingent Interest due hereunder. 8. Late Payment Fees. If any payment due hereunder is not paid within five (5) days from the date such becomes due, Borrower shall pay a reasonable late or collection charge equal to five percent (5%) of the amount so unpaid. The City and Borrower agree that the actual damages and costs sustained by the City due to the failure to make timely payments would be extremely difficult to measure and that the charges specified in this paragraph represent a reasonable estimate by Borrower and the City of a fair average compensation for such damages and costs. Such charges shall be paid by Borrower without prejudice to the right of the City to collect any other amounts provided to be paid under this Note or Deed of Trust or, with respect to late payments, to declare a default. 9. Prepayments. The Borrower may prepay all or part of the balance due under this Note including principal and Contingent Interest. In the event the entire amount of principal due under this Note is prepaid, all Contingent Interest, calculated as of the date of prepayment, shall also be due at the time of prepayment. 10. No 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 Agency to assist in the purchase of homes by lower income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon Transfer. 11. Maintenance; Taxes; Insurance. Borrower shall maintain the Residence in good repair and in a neat, clean and orderly condition. Borrower shall promptly pay all property taxes due on the Residence prior to any delinquency and shall comply with the insurance requirements set forth in the Deed of Trust. 12. Certification of Purchase Price on Transfer. Upon any sale of the Residence, the Borrower shall submit to the City at least fifteen (15) days prior to the close of escrow, a copy of the sales contract and a written declaration, under penalty of perjury, from the Borrower and the proposed purchaser in a form acceptable to the City stating the gross sales price of the Residence. The certification shall also provide that the proposed purchaser or any other party has not paid and will not pay to the Borrower, and the Borrower 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. 13. Notice to City of Transfers. Borrower shall provide the City with written notice of any sale, assignment or transfer, voluntary or involuntary, of any interest in the Residence, including, but not limited to, encumbrance of the Residence with a junior deed of trust or transfer of the Residence to a spouse or trust. Borrower shall provide this notice to the City no later than fifteen (15) days before the sale, assignment, or transfer occurs, except where the transfer is by devise or inheritance after the death of the Borrower in which event notice shall be provided within thirty (30) days of the date of transfer. 14. Default. (a) The Borrower shall be in default under this Note if, after the notice and cure period provided by the City to the Borrower pursuant to the notice and cure provisions of the Deed of Trust, the Borrower (i) fails to pay any money when due under this Note; (ii) breaches any representation or covenant made in this Note in any material respect; or (iii) breaches any provision of the Deed of Trust. (b) Upon the Borrower's breach of any covenant or agreement of the Borrower in this Note or the Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by the Deed of Trust, the City, prior to acceleration, will send, in the manner set forth in Section 19, 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, 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 the Deed of Trust and foreclosure by the City. 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. 15. Acceleration. Upon the occurrence of a default under this Note or the Deed of Trust, the City shall have the right to declare the full amount of the principal along with any Contingent Interest under this 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 this Note and the Deed of Trust. Nor shall acceptance by the City of any payment provided for herein constitute a waiver of the City's right to require prompt payment of any remaining principal and interest owed. 16. No Offset. The Borrower hereby waives any rights of offset it now has or may later have against the City, its successors and assigns, and agrees to make the payments called for in this Note in accordance with the terms of this Note. 17. Waiver; Attorney Fees and Costs. The Borrower and any endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors and assigns, respectively, severally waive diligence, presentment, protest, and demand, and notice of protest, dishonor and non-payment of this Note, and expressly waive any rights to be released by reason of any extension of time or change in terms of payment, or change, alteration or release of any security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorney fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys' fees in such action. 18. No Waiver by the City. No waiver of any breach, default or failure of condition under the terms of this Note shall be implied from any failure of the City to take action with respect to such breach, default or failure or from any previous waiver of any similar or unrelated breach, default or failure. 19. Notices. All notices required in this Note 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 Borrower: Leslie Joan Suttle At the address of the Residence: 2919 Cliff Circle, Carlsbad, CA 92008 To the City: City of Carlsbad Housing and Redevelopment Department Attention: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this Section 19. 20. Joint and Several Obligations. This Note is the joint and several obligation of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors and assigns. 21. Nonliability for Negligence, Loss, or Damage: Borrower acknowledges, understands and agrees that the relationship between Borrower and the City is solely that of borrower and lender, and that the City does not undertake or assume any responsibility for or the quality, adequacy or suitability of the Residence 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 Residence 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 Residence and will hold the City harmless from any liability, loss or damage for these things. 22. 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. the making of the loan to the Borrower; b. Borrower's failure to perform any obligations as and when required by the Note or Deed of Trust; or c. the failure at any time of any of Borrower's representations to the Seller or the City to be true and correct. 23. Termination of Restrictions. Any legal restrictions on conveyance of the Residence (as defined in 24 CFR 203.41(a)(3)(u)) included in this Note shall terminate upon transfer of the Residence by foreclosure or deed in lieu of foreclosure. 24. Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State of California. 25. Assignment by City. The City may assign its right to receive the proceeds under this Note to any person and upon notice to the Borrower by the City all payments shall be made to the assignee. 26. Invalid Provisions. If any one or more of the provisions contained in this 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 contained in this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Note. 27. Entire Agreement. This Note (along with the Deed of Trust) sets forth the entire understanding and agreement of the City and the Borrower and any amendment, alteration or interpretation of this Note must be in writing signed by both the City and the Borrower. BORROWER Leslie Joan Suttle (Print Name) rcQUEST OF B8ST AMIR!€AN Tiflr ^2 UUL tf £.000 0190510 SUBDIVISION SALE-OUT DEPARTMENT RECORDING REQUESTED BY i-ir-n. j-_i ? ^^wu <+ - **_L ri i AND WHEN RECORDEDJvlAIL TO: OFFICIAL RECORDS I *£• V| 9 Ifyr^ SAN DIEGO COUNTY RECORDER'S OFFICE City of Carlsbad GREGORY J. SHITH, COUNTY RECORDER City Clerk's Office IlllllllllllllllllillllllllllllllllllllllllllllllllUlllllllllll Carlsbad, CA 92008 _ _ 2000-0190510 _ above for RecOEder's Use> 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 3rd day of April, 2000, among Leslie Joan Suttle ("Borrower") as trustor, and First American Title Insurance 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; TO SECURE to the City the repayment of the sums evidenced by a promissory note executed by the Borrower to the City dated April 3, 2000, in the amount of Forty Five Thousand Dollars ($45,000.00) (the "Note"); Heritage-Cliffs Borrower D.O.T. 9423 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 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 the Security is encumbered only by this deed of trust. 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. 2. Repayment of Loan. The Borrower will promptly repay, when due, the principal and interest required by the Note. The Note contains the following provisions concerning repayment of the loan under certain conditions: 3. No 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 Agency to assist in the purchase of homes by lower income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon Transfer. 4. Owner-Occupancy Required. The Borrower shall occupy the Property as his or her principal place of residence. The Borrower shall be considered as occupying the Property if the Borrower is living in the unit for at least ten (10) months out of each calendar year. The Borrower shall provide an annual written certification to the City that the Borrower is occupying the Property as his or her principal place of residence. 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 any 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. Hazard Insurance. The Borrower will keep the Security insured by 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. 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 City as their interests may appear and in a form acceptah to hold, or cause its designated agent to hold, the po e to the City. The City shall have the right icies 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 jroof of loss if not made promptly by the Borrower. The City shall receive thirty days advanc policies required under this section. e notice of cancellation of any insurance Unless the City and the Borrower otherwise applied to restoration or repair of the Security dama Rrvrrnwer HOT agree in writing, insurance proceeds will be ed, provided such restoration or repair is 9424 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 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 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. 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. 8. Protection of the City's Security. If the Borrower fails to perform the covenants and agreements contained in this 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 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. 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. 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. 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. 12. 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. 13. Joint and Several Liability. All covenants and agreements of the Borrower shall be joint and several. Herifane-diffs Rnrrnuuor DOT 9425 14. 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 Attn: Housing and Redevelopment Director Housing and Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 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 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 and the Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Deed of Trust 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. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower in 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 14 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 14 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 the Trustee a written declaration HoritanA-Pliffs Rnrrnwer DOT 4 ORDER NO. 1234928-5 EXHIBIT WA" 9426 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: A CONDOMINIUM COMPRISED OF: PARCEL 1: AN UNDIVIDED 1/17™ FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA OF MODULE B AS SHOWN ON THE CONDOMINIUM PLAN, PHASE 2, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON AUGUST 27, 1999 AS FILE NO. 1999-0594221 OF OFFICIAL RECORDS ("CONDOMINIUM PLAN"), WHICH IS LOCATED ON LOT 1 OF CITY OF CARLSBAD TRACT 97-04, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13714, RECORDED ON DECEMBER 30, 1998. EXCEPTING AND RESERVING THEREFROM NON-EXCLUSIVE EASEMENTS FOR ACCESS, INGRESS, EGRESS, ENCROACHMENT, MAINTENANCE, REPAIR, DRAINAGE, SUPPORT, AND FOR OTHER PURPOSES, ALL AS DESCRIBED IN THE CONDOMINIUM PLAN AND DECLARATION. PARCEL 2: RESIDENTIAL UNIT NO. 34. AS SHOWN AND DEFINED ON THE CONDOMINIUM PLAN. FURTHER EXCEPTING AND RESERVING THEREFROM A FRONT YARD MAINTENANCE AREA EASEMENT FOR THE BENEFIT OF THE ASSOCIATION AS DESCRIBED ON THE CONDOMINIUM PLAN AND IN THE DECLARATION. PARCEL 3: A NON-EXCLUSIVE EASEMENT FOR ACCESS, INGRESS, EGRESS AND USE AS PROVIDED UNDER THE DECLARATION OVER THAT PORTION OF THE RESIDENTIAL UNIT NO. 33 DESIGNATED ON THE CONDOMINIUM PLAN AS A YARD USE AREA FOR THE BENEFIT OF AND WHICH EASEMENT IS APPURTENANT TO RESIDENTIAL UNIT NO. 34. PARCEL 4: A NON-EXCLUSIVE EASEMENT FOR ACCESS, INGRESS, EGRESS AND USE AS PROVIDED UNDER THE DECLARATION OVER THAT PORTION OF RESIDENTIAL UNIT NO. 35 DESIGNATED ON THE CONDOMINIUM PLAN AS A SIDE YARD MAINTENANCE AREA FOR THE BENEFIT OF AND WHICH EASEMENT IS APPURTENANT TO RESIDENTIAL UNIT NO. 34. PARCEL 5: A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR INGRESS, EGRESS, USE AND ENJOYMENT, OVER, IN, TO AND THROUGHOUT THE ASSOCIATION PROPERTY SHOWN ON THE CONDOMINIUM PLAN DESCRIBED IN PARCEL "1" ABOVE AND OVER, IN, TO AND THROUGHOUT, FUTURE PHASES OF THE PROJECT DESCRIBED IN THE DECLARATION WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE. THIS EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF THE FUTURE PHASES, RESPECTIVELY, UPON (i) RECORDATION OF A DECLARATION OF ANNEXATION, DECLARING SUCH PHASES, RESPECTIVELY, TO BE SUBJECT TO THE DECLARATION, AND (ii) CONVEYANCE OF THE FIRST CONDOMINIUM COVERED BY THE DECLARATION OF ANNEXATION, ALL AS MORE FULLY SET FORTH IN THE DECLARATION. THE ASSOCIATION PROPERTY REFERRED TO HEREIN AS TO EACH OF SUCH PHASES SHALL BE AS DESCRIBED ON THE CONDOMINIUM PLAN COVERING EACH SUCH PHASE RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, EXCEPTING THEREFROM THE COMMON AREA AND RESIDENTIAL UNfTS SITUATED THEREON. 9427 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. 19. Acceleration. Upon the occurrence of a default under the Note, this 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 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. 20. 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 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 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 or forgiveness 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. 23. Attorney's Fees. If any action or proceeding is brought to enforce this Deed of Trust or any provision of this Deed of Trust or the Note, the prevailing party shall be entitled to its attorney's fees and the cost of such action or proceeding. IN WITNESS WHEREOF, the Borrower has executed this Deed Of Trust as of the date first written above. Leslie Joan Suttle (Print Name) HeritanA-P.liffs Rnrrn««»r n O T STATE OF CALIFORNIA ) )ss COUNTY OF SAN DIEGO ) Q428 On , 2000, 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 id official seal.MARYANN ANGEL ? COMM. #1248357 S NOTARY PUBLIC-CALIFORNIA W SAN DIEGO COUNTY 0 COMM. EXP. JAN. 31, 20047* STATE OF CALIFORNIA ) )ss COUNTY OF SAN DIEGO ) On , 2000, 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.