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HomeMy WebLinkAboutPrincipe, Jeanne L.; 1999-08-25;\ I I \ I \ 1010\03\101715,0l EXHIBIT A Property Description Certified to be a True and CorrectC~ at a creditor's sale of the Residence . (b) "Contingent Interest" shall mean the percentage of t he 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 comparab~e 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 shal l preclude the Borrower and the City from establishing the Fai r Market Val ue o f the Residence by mutual agreement in lieu of an appraisal. (d) "First Mortgage" shall mean the promissory note and deed of trust evidencing and securing the first mortgage loan for the Residence. ·ce) "Residence" shall mean the housing unit and ld.nd· encumber.ad by the deed of trust executed in connection with this Note. (f) "Transfer" shall mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Residence, including, but not l i mited to, a fee simple interest, a joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or an i nterest evidenced by a land cont ract by which possession of the Residence i s transferred and the Borrower retains title. Any Transfer without satisfaction of the provisions of this No t e is prohibited. A transfer: (i) to an existing spouse who is also an obligor under the Not e; (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 inheri tance foll owing 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 pr"incipal place ·of residence and the Borrower shall provide written not ice of such transf er to the City pursuant to Section 1 4 below. 3. Security. This Note i s secured by a second deed of trust dat ed the same date as thi s Note (the "Deed of Trust"'>. 4 . Contingent I nterest. The Borrowe r shall pay contingent interest equal to THIRTEEN POINT SIX PERCENT (13 .6%) of t he Appreciat ion Amount (the "Contingent Interest"). No interest other than Contingent Interest sha©--3t~ff'i&8Jete9t,~~<}ffie a'fft1 1010 \02\104140 .02 2 CorrectCopyL ~ Contingent Int erest shall be paid to the City at the time set forth in Section 7(b) below, unless forgiven by the Ci ty pursuant to Sect1on 7 ( c) below. Borrower acknowl edges that the Co:ritl'iigent Interest percentage amount is equal t o the City/Seller Loan principal amount as a percentage of t he total purchase price of the Home paid by the Borrower at the time of purchase, multiplied by sevent y -five one hun~redths (.75). Borrower acknowl edges that this calculation of the per centage 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 Ter m of this Note shall mean the period commencing on the date of this Note and expiring on the date fifteen (15) years thereafter. 6. Residency , First Time Homebuyer, and Owner-Occupancy Requirements; Representations Regarding Requi r ements. (a) The Borrower shall either have lived in the City for· a minimum of sixty (60) days or work in the City, and also be a firs t time homebuyer . Failure of the Borrower to comply with thes·e requirements shall be a default under this Not e . The Borrower shall provide writ ten certificati on to the City that he or she meets these requirements. ·(b) The Borr ower is required to occupy the Residence as his or her principal place of resi dence, and failure by the Borrower to comply with this requirement shall be a default under this Note. The Borrower shall be con sidered as occupying the Residence if the Borrower is l iving in the Residence for at least ten (10) months out of each calendar year. The Borrower shall provide an annual written certificat ion to the City that the Borrower is occupying the Resi den ce as his o r her principal place of residence. The Borrower shall not lease the Home to another part y. Any lease of the Residence shal l b e a default under this Note . (c) Borrower hereby certifies that all i n come, residency or empl oymen t, and f irst time homebuyer status informat ion previously submit ted to the City is true and correct . Misrepresentation by Borrower of this informati on provi ded to the City shall be a default under thi s Note. 7. Repayment. (a) Repayment of the principal amount of this Note shall be d e f erred f or t h e first five years f rom the date of this Note. At t h e end of five (5) y ears, the Bor rowe r s hall b egin making monthly repayments of prin cipal in the amount of ONE HUNDRED SIXTY SIX AND 67/100 Dollars ($166.67 ) based on a ten (10) year principa l r epayment schedule e nd,.tflMd anft.R:r~able on the 1010\02\10:140. 02 \;', 1 ' -a i rue and 3 Correct Copy. ~·~ 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 renewar· 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 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 S.ecurity 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 i~paired, 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 tne 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 i s mai led by either of them to the Borrower that the insurance carrier offers to settl e 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 impai~~ent 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, 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, ins,Q}. ~~flfX ,;.,s o,.d True and enforcement, or arrangements or proceedin~~;anV~fvi'rig-' a krupt or decedent, then the City., at the City's fG>P,~~A~ (j)p~. ce to the Borrower, may make such appearances, a.·f s'l:>hrse SU~ ms and take such action as it determines necessary to prote __ _:_~~----()_ .. 101-0\02\104149.0l 4 ____ ----~-~ ~ J . ·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.mall, return receipt requested or express delivery service with a delivery receipt, or personally delivered with a deliv·ery 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 Depar~ment 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. 1 6. Invalid Provisions. If any one or more of the provisions conta-ined 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 r ·emaining 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 cap:tions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define t he 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 t he breach is curable, the action required to cure such breach; (3) a date, not less than thirey .. t~~h,1ai-:r.st')~~m'fi":'e and 'J ''..1.,il l \rl}-•·.......,. '~V date the notice is effective as set forth in ~ec"tipIJ.....14 this Deed of Trust, by which such breach, if curah~~e~s 4:gn•, cured; and (4) if the breach is curable, that failure to cu uch breach on or befor:-·e the date specified in the notic . .0 1010\02\104149 .01 6 ___ _,,~; _ _.:.__ _____ ~---=-~- prompb 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) tqe Borrower takes such action as City may reasonably require to assur.e 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. Reconveyar,ce. 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 ail 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. Subordination to First 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 forec losure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or assignment i:z:i lieu of foreclosure, this Deed 'Af. !:S~~~ -t~t1cr,..,l ~} . .betue and forever terminated and shall have no further 'e£..fte0tv a's'-'t<.Y~~ 1 · Property or any transferee thereafter; provid~qJr ~"0Jt~: .if the holder of such First Lend€r Deed of Trust acquired titl ~t:::o::-.!::t.us:;....--- Property pursuant to a deed or assignment in lieu of :i::-ec os_ur.:_1__ __ -M-c.. 1~10\02\104149.01 8 ~ ~, ,) 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 "Residencet') 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. Refinance of First Mortgage Loan. The outstanding principal and interest on this Note shall not be due upon prepayment and refinance of the First Mortgage, and the Deed of Trust shall be subordinated to the refinanced loan, prdvided that (i) such refinancing is approved by the City, (ii) the amount .refinanced does not exceed the outstanding principal balance"t)f 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 Mortgage Loan than were due prior to the refinance. 13. 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, inoney or other consideration, including personal property, in addition to what is set forth in the sales contract. 1010\03\111697.6 04/02/99 4 Certified to be a rrue;l Correct CoL:= o~ ~ 7 SUBORDINATION AGREEMENT CONTINUED ON NEXT PAGE CONTINUATION OF SUBORDINATION AGREEMENT 17288 WHEREAS, it is to the mutual benefit of the parties hereto that Lender make such loan to Owner; and Beneficiary is willing that the deed of trust securing the same shall, when recorded, constitute a lien or charge upon said land which is unconditionally prior and superior to the lien or charge of the deed of trust above mentioned. NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce Lender to make the loan above referred to, it is hereby declared, understood and agreed as follows: (1) That said deed of trust securing said note in favor of Lender, and any renewals or extensions thereof, shall unconditionally be and remain at all times a lien or charge on the property therein described, prior and superior to the lien or charge of the deed of trust first above mentioned. (2) That Lender would not make its loan above described without this subordination agreement. (3) That this agreement shall be the whole and only agreement with iregard to the subordination of the lien or charge of the deed of trust first above mentioned to the lien or charge of the deed of trust in favor of lender above referred to and shall supersede and cancel, but only insofar as would affect the priority between the deeds of trust hereinbefore specifically described, any prior agreement as to such subordination including, but not limited to, those provisions, if any; contained in the deed of trust first above mentioned, which provide for the subordination of the lien or charge thereof to another deed or deed· of trust or to another mortgage or mortgages. Beneficiary declares, agrees and acknowledges that (a) He consents to and approves (i) all provisions of the note and deed of trust in favor of Lender above referred to, and (ii) all agreements, including but not limited to any loan or escrow agreements, between Owner and Lender for the disbursement of the proceeds of Lender's loan; (b) Lender in making disbursements pursuant to any such agreement is under no obligation or duty to, nor has Lender represented that it will see to the application of such proceeds by the person or persons to whom Lender disburses such proceeds and any application or use of such proceeds for purposes other than those provided for in such agreement or agreements shall not defeat the subordination herein made in whole or in part; (c) He intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of the deed of trust first above mentioned in favor of the lien or charge upon said land of the deed of trust in favor of · Lender above referred to and understands that in reliance upon, and in consideration of, this waiver, relinquishment and subordination specific loans and advances are being and will be made and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this waiver , relinquishment and subordination; and (d) An endorsement has been placed upon the note secured by deed of trust first above mentioned that said deed of trust has by this instrument been subordinated to the lien or charge of the deed of trust in favor of Lender above referred to. SUBORDINATION AGREEMENT CONTINUED ON NEXT PAGE May 15, 2001