HomeMy WebLinkAboutSDP 97-16A; Pacific Vista Las Flores LP; |2001-0120228|2001-0120227|2001-0120222|2001-0120221|; Affordable Housing-Regulatory Agreement & Dec. of Restrictive Covenants. _ / 3 -.
and
Pacific Vista Las mores, L.P.,
a California limited partnership
December IS, 2000
CITY~NOTE
$363,948 February 28 ) 2001
Carlsbad, California
.ie FOR VALUE RECEIVED, and P&&J Vista L@ Ffores, a California limited partnership
(“Borrower”), promises to pay to the City of@arkbad (*City”), or order, the principal sum of
Three Hundred Sixty Three Thou@nd Nine W.u&ed Eor&$&ht Five Dollars ($363,948), or so
much thereof as is advanced to &rower by the C!@ pursuant to Se&on 2 of the Loan
Agreement (defined b&W), plus simple interest m&g at the rate of three percent (3%) per
annum, commencing
ursuant to a City Loa&
n the Borrower and th@
atory Agreement exeuwd by tM Borrower
2. -T&xJQ. Thai term of this City Note (the “Term”) shall c@nmenc&un
City Note and sh&l end iwt the later of: (i) fifty-five (55) years from the d#& of
certificate of ~~~ f& all units in the Development (as d&ned in the City
Agreement).
3. . Ail amounts &.te under tbia @&y shall be
due and payable I City Lfmn Agreement.
4. Bmwer shall have the right to prepay all or a p&t&n of the
principal and interest &e ut@er this sty Note without any c&r@ or pen&Q Wng made
therefor.
Deed of Trust.
(the Tzi Deed of Trust).
‘&is CQ Note is secured by a &M st of even date herewith
6. Acceleration. Upon the occurrence of a default under the City Loan Agreement,
City Regulatory Agreement or City Deed of Trust, and expiration of all applicable notice and
cure periods (an “Event of Default”), the City shall have the right to accelerate the Term of this
City Note and declare all of the unpaid principal and accrued interest immediately due and
payable. Any failure by the City to pursue its legal and equitable remedies upon an Event of
Default shall not constitute a waiver of the City’s right to declare an Event of Default and
exercise all of its rights under this City Note, the City Regulatory Agreement, the City Deed of
Trust, and the City Loan Agreement. Nor shall acceptance by the City of any payment provided
for herein constitute a waiver of the City’s right to require prompt payment of any remaining principal and interest owed.
December 15,200O 1
_ r;j .--= -’ -y,:;,=--’ ,, ,:
d
., :j- .’ ,. “v ,: ,,’ )i 1 ,’ -‘y.;y ‘1.v --‘-‘-a-’ ,,,. m$x:L
.
AMERICAN LAND TITLE ASSOCIATION
LOAN POLICY
(10-I 7-92)
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE
CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, CHICAGO TITLE
INSURANCE COMPANY, a Missouri corporation, herein called the Company, insures, as of Date of Policy shown
in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or
incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. Unmarketability of the title;
4. Lack of a right of access to and from the land;
5. The invalidity or unenforceability of the lien of the insured mortgage upon the title;
6. The priority of any lien or encumbrance over the lien of the insured mortgage;
7. Lack of priority of the lien of the insured mortgage over any statutory lien for services, labor or material:
(a) arising from an improvement or work related to the land which is contracted for or commenced
prior to Date of Policy; or
(b) arising from an improvement or work related to the land which is contracted for or commenced
subsequent to Date of Policy and which is financed in whole or in part by proceeds of the
indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or
is obligated to advance;
8. Any assessments for street improvements under construction or completed at Date of Policy which now
have gained or hereafter may gain priority over the lien of the insured mortgage;
9. The invalidity or unenforceability of any assignment of the insured mortgage, provided the assignment
is shown in Schedule A, or the failure of the assignment shown in Schedule A to vest title to the insured
mortgage in the named insured assignee free and clear of ali liens.
The Company will also pay the costs, attorneys’ fees and expenses incurred in defense of the title or the lien of the
insured mortgage, as insured, but only to the extent provided in the Conditions and Stipulations.
Issued by:
CHICAGO TITLE COMPANY
925 “B” Street San Diego, CA 92101
(619) 239 - 6081
CHICAGO TITLE INSURANCE COMPANY
President
b.; ! ‘:’
’ i
I ‘. I .’ b- !
I:!;;
i’. i
hv
i
\:;;i
i::-
1 $ / i
‘1 1: ;:t ,:. 4
\$j
,[..
I $; ~ . ,
;:
1 &!
F:
I:;{
r-‘:
1 9% i“.i
~ ! ‘: .’ :(I
:::;. i
r.4
i
‘...I
Secretary
ALTA Loan Policy (IO- 17-92)
with ALTA Endorsement-Form I Coverage
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys’ fees or expenses which arise by reason of:
1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restrict- ing, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or the effect of any violation of these laws, ordinances or
governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
(b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien
or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy.
2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the insured claimant;
(b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
(c) resulting in no loss or damage to the insured claimant;
(d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of the insured mortgage over any statutory lien for services, labor or material); or
(e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage.
4. Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the inability or failure of any subsequent owner of the indebtedness, to comply with applicable doing business laws of the state in which the land is situated.
5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the insured
mortgage and is based upon usury or any consumer credit protection or truth in lending law.
6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising from an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance.
7. Any laim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal ban d ruptcy, state insolvency, or similar creditors’ rights laws, that is based on:
(i) the transaction creating the interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or
(ii) the subordination of the interest of the insured mortgagee as a result of the application of the doctrine of equitable subordination; or
(iii) the transaction creating the interest of the insured mortgagee being deemed a preferential transfer except where the preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser for value or a judgment or lien creditor.
CONDITIONS AND STIPULATIONS
1. DEFINITION OF TERMS
The following terms when used in this policy mean:
a “insured”: the insured named in Schedule A. The term “insured” also
inr!lu)dei
(i) the owner of the indebtedness secured by the insured mortgage and each successor in ownership of the indebtedness except a successor who is
an obligor under the provisions of Section 12(c) of these Conditions and
Stipulations (reserving, however, all rights and defenses as to any successor that the Company would have had against any predecessor insured, unless the successor acquired the indebtedness as a purchaser for value without
knowledge of the asserted defect, lien, encumbrance, adverse claim or other
matter insured against by this policy as affecting title to the estate or interest in the land);
(ii) any governmental agency or governmental instrumentality which is an
insurer or guarantor under an insurance contract or guaranty insuring or
guaranteeing the indebtedness secured by the insured mortgage, or any part thereof, whether named as an insured herein or not;
(iii) the parties designated in Section 2(a) of these Conditions and Stipula-
tions.
(b) “insured claimant”: an insured claiming loss or damage.
(c) “knowledge” or “known”: actual knowledge, not constructive knowl-
edge or notice which may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart construc- tive notice of matters affecting the land.
(d) “land”: the land described or referred to in Schedule A, and improve- ments affixed thereto which by law constitute real property. The term “land” does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in
abutting streets, roads, avenues, alleys, lanes, ways or waterways, but noth- ing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy.
(e) “mortgage”: mortgage, deed of trust, trust deed, or other security
instrument.
(9 “public records”: records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to
real property to purchasers for value and without knowledge. With respect to
Section 1 (a)(iv) of the Exclusions From Coverage, “public records” shall also include environmental protection liens filed in the records of the clerk of the
United States district court for the district in which the land is located.
(g) “unmarketability of the title”: an alleged or apparent matter affecting the title to the land, not excluded or excepted from coverage, which would
entitle a purchaser of the estate or interest described in Schedule A or the
insured mortgage to be released from the obligation to purchase by virtue of a
contractual condition requiring the delivery of marketable title.
2. CONTINUATION OF INSURANCE
(a) After Acquisition of Title. The coverage of this policy shall continue in
force asof Date of Policy in favor of (i) an insured who acquires all or any part of
the estate or interest in the land by foreclosure, trustee’s sale, conveyance in lieu of foreclosure, or other legal manner which discharges the lien of the insured mortgage; (ii) a transferee of the estate or interest so acquired from an
insured corporation, provided the transferee is the parent or wholly-owned subsidiary of the insured corporation, and their corporate successors by oper-
ation of law and not by purchase, subject to any rights or defenses the Com-
pany may have against any predecessor insureds; and (iii) any governmental agency or governmental instrumentality which acquires all or any part of the estate or interest pursuant to a contract of insurance or guaranty insuring or
guaranteeing the indebtedness secured by the insured mortgage.
(b) After Conveyance of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured
retains an estate or interest in the land, or holds an indebtedness secured by a
purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the
insured of either (i) an estate or interest in the land,.or (ii) an indebtedness secured by a purchase money mortgage given to the insured.
(c) Amount of Insurance. The amount of insL,:e after the acquisition or after the conveyance shall in neither event exceed the least of:
(i) the Amount of Insurance stated in Schedule-A; -
(ii) the amount of the principal of the indebtedness secured by the insured
mortgage as of Date of Policy, interest thereon, expenses of foreclosure,
amounts advanced pursuant to the insured mortgage to assure compliance with laws or to protect the lien of the insured mortgage prior to the time of acquisition of the estate or interest in the land and secured thereby and
reasonable amounts expended to prevent deterioration of improvements, but
reduced by the amount of all payments made; or (iii) the amount paid by any governmental agency or governmental instru- mentality, if the agency or instrumentality is the insured claimant, in the acqui- sition of the estate or interest in satisfaction of its insurance contract or guar-
anty.
3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT
The insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 4(a) below, (ii) in case knowledge shall come to
an insured hereunder of any claim of title or interest which is adverse to the
title tothe estate or interest or the lien of the insured mortgage, as insured, and which might cause loss or damage for which the Company may be liable by
virtue of this policy, or (iii) if title to the estate or interest or the lien of the
insured mortgage, as insured, is rejected as unmarketable. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt
notice is required; provided, however, that failure to notify the Company shall
in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice.
4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED
CLAIMANT TO COOPERATE
(a) Upon written request by the insured and subject to the options con- tained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an
insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. The
Company shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the
fees of any other counsel. The Company will not pay any fees, costs or
expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act which in its opinion
may be necessary or desirable to establish the title to the estate or interest or
the lien of the insured mortgage, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not
thereby concede liability or waive any provision of this policy. If the Company
shall exercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company
may pursue any litigation to final determination by a court of competent juris-
diction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order.
(d) In all cases where this policy permits or requires the Company to prose- cute or provide for the defense of any action or proceeding, the insured shall
secure to the Company the right to so prosecute or provide defense in the
action or proceeding, and all appealstherein, and permit the Company to use,
at itsoption, the nameof the insured forthis purpose. Whenever requested by the Company, the insured, at the Company’s expense, shall give the Com-
pany all reasonable aid (i) in any action or proceeding, securing evidence,
obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or
interest or the lien of the insured mortgage, as insured. if the Company is
prejudiced by the failure of the insured to furnish the required cooperation, the Company’s obligations to the insured under the policy shall terminate, includ-
ing any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation.
5. PROOF OF LOSS OR DAMAGE
in addition to and after the notices required under Section 3 of these Condi-
tions and Stipulations have been provided the Company, a proof of loss or
damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts
giving rise to the loss or damage. The proof of loss or damage shall describe
the defect in, or lien or encumbrance on the title, or other matter insured against by this policy which constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or
damage. If the Company is prejudiced by the failure of the insured claimant to
provide the required pn f loss or damage, the Company’s obligations to r’ the insured under the po ICY shall terminate, including any liability or obliga- tion to defend, prosecute, or continue any litigation, with regard to the matter
or matters requiring such proof of loss or damage.
In addition, the insured claimant may reasonably be required to submit to
examination under oath by any authorized representative of the Company
and shall produce for examination, inspection and copying, at such reason- able times and places as may be designated by any authorized representative
of the Company, all records, books, ledgers, checks, correspondence and
memoranda, whether bearing a date before or after Date of Policy, which
reasonably pertain to the loss or damage. Further, if requested by any author- ized representative of the Company, the insured claimant shall grant its per- mission, in writing, for any authorized representative of the Company to exam-
ine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by
the insured claimant provided to the Company pursuant to this Section shall
not be disclosed to others unless, in the reasonable judgment of the Com- pany, it is necessary in the administration of the claim. Failure of the insured claimant to submit for examination under oath, produce other reasonably
requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph, unless prohibited
by law or governmental regulation, shall terminate any liability of the Company
under this policy as to that claim.
6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY
In case of a claim under this policy, the Company shall have the following
additional options:
(a) To Pay or Tender Payment of the Amount of Insurance or to
Purchase the indebtedness.
(i) to pay or tender payment of the amount of insurance under this policy together with any costs, attorneys’ fees and expenses incurred by the insured
claimant, which were authorized by the Company, up to the time of payment or
tender of payment and which the Company is obligated to pay: or
(ii) to purchase the indebtedness secured by the insured mortgage for the amount owing thereon together with any costs, attorneys’ fees and expenses incurred by the insured claimant which were authorized by the Company up to
the time of purchase and which the Company is obligated to pay.
If the Company offers to purchase the indebtedness as herein provided, the
owner of the indebtedness shall transfer, assign, and convey the indebted-
ness and the insured mortgage, together with any collateral security, to the Company upon payment therefor. Upon the exercise by the Company of either of the options provided for in paragraphs a(i) or (ii), all liability and obligations to the insured under this policy, other than to make the payment required in those paragraphs, shall
terminate, including any liability or obligation to defend, prosecute, or con-
tinue any litigation, and the policy shall be surrendered to the Company for cancellation.
(b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant.
(i) to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy, together with any costs, attorneys’ fees and expenses incurred by the insured claimant which
were authorized by the Company up to the time of payment and which the Company is obligated to pay; or
(ii) to pay or otherwise settle with the insured claimant the loss or damage
provided for under this policy, together with any costs, attorneys’ fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to
pay. Upon the exercise by the Company of either of the options provided for in paragraphs (b)(i) or (ii), the Company’s obligations to the insured under this
policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prose- cute or continue any litigation.
7. DETERMINATION AND EXTENT OF LIABILITY
This policy is a contract of indemnity against actual monetary loss or dam- age sustained or incurred by the insured claimant who has suffered loss or
damage by reason of matters insured against by this policy and only to the
extent herein described.
(a) The liability of the Company under this policy shall not exceed the least
of:
(i) the Amount of Insurance stated in Schedule A, or, if applicable, the
amount of insurance as defined in Section 2 (c) of these Conditions and Stipulations;
(ii) the amount of the unpaid principal indebtedness secured by the
insured mortgage as limited or provided under Section 6 of these Conditions
and Stipulations or as reduced under Section 9 of these Conditions and
Stipulations, at the time the loss or damage insured against by this policy occurs, together with interest thereon; or
(iii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect,
ken or encumbrance insured against by this policy. (b) lntheeventtheinsured hasacquired theestateorinterestin themanner described in Section 2(a) of these Conditions and Stipulations or has con-
veyed the title, then the liability of the Company shall continue as set forth in Section 7(a) of these Conditions and Stipulations.
(c) The Company will pay only those costs, attorneys’ fees and expenses
incurred in accordance with Section 4 of these Conditions and Stipulations.
8. LIMITATION OF LIABILITY
(a) If the Company establishes the title. or removes the alleged defect, lien
or encumbrance, or cures the lack of a right of access to or from the land, or
cures the claim of unmarketability of title, or otherwise establishes the lien of the insured mortgage, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby.
(b) In the event of any litigation, including litigation by the Company or with the Company’s consent, the Company shall have no liability for loss or dam-
age until there has been a final determination by a court of competent jurisdic-
tion, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage, as insured. (c) The Company shall not be liable for loss or damage to any insured for
liability voluntarily assumed by the insured in settling any claim or suit without
the prior written consent of the Company.
(d) The Company shall not be liable for: (i) any indebtedness created subse- quent to Date of Policy except for advances made to protect the lien of the insured mortgage and secured thereby and reasonable amounts expended to
prevent deterioration of improvements; or (ii) construction loan advances
made subsequent to Date of Policy, except construction loan advances made subsequent to Date of Policy for the purpose of financing in whole or in part the
construction of an improvement to the land which at Date of Policy were
secured by the insured mortgage and which the insured was and continued to
be obligated to advance at and after Date of Policy.
9. REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF LIABILITY
(a) All payments under this policy, except payments made for costs, attor-
neys’ fees and expenses, shall reduce the amount of the insurance pro tanto. However, any payments made prior to the acquisition of title to the estate or
interest as provided in Section 2(a) of these Conditions and Stipulations shall
not reduce pro tanto the amount of the insurance afforded under this policy
except to the extent that the payments reduce the amount of the indebtedness secured by the insured mortgage.
(b) Payment in par? by any person of the principal of the indebtedness, or
any other obligation secured by the insured mortgage, or any voluntary partial satisfaction or release of the insured mortgage, to the extent of the payment, satisfaction or release, shall reduce the amount of insurance pro tanto. The
amount of insurance may thereafter be increased by accruing interest and
advances made to protect the lien of the insured mortgage and secured thereby, with interest thereon, provided in no event shall the amount of insur-
ance be greater than the Amount of Insurance stated in Schedule A.
(c) Payment in full by any person or the voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company except as provided in Section 2(a) of these Conditions and Stipulations.
10. LIABILITY NONCUMULATIVE
If the insured acquires title to the estate or interest in satisfaction of the
indebtedness secured by the insured mortgage, or any part thereof, it is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a
mortgage to which exception is taken in Schedule B or to which the insured
has agreed, assumed, or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy.
11. PAYMENT OF LOSS
(a) No payment shall be made without producing this policy for endorse- ment of the payment unless the policy has been lost or destroyed, in which
case proof of loss or destruction shall be furnished to the satisfaction of the Company.
(b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage
shall be payable within 30 days thereafter.
12. SUBROGATION UPON PAYMENT OR SETTLEMENT
(a) The Company’s Right of Subrogation.
Whenever the Company shall have settled and paid a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act
of the insured claimant.
The Company shall be subrogated to and be entitled to all rights and remedies which the insured claimant would have had against any person or
property in respect to the claim had this policy not been issued. If requested by
the Company, the insured claimant shall transfer to the Company all rights
L
Reorder Form No. 8284 (Rev. 1 O-l 7-92)
and remedies against any person or property necessary in order to perfect
this right of subrogation. The insured claimant shall permit the Company to
sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these
rights or remedies.
If a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to all rights and remedies
of the insured claimant after the insured claimant shall have recovered its
principal, interest, and costs of collection.
(b) The Insured’s Rights and Limitations.
Notwithstanding the foregoing, the owner of the indebtedness secured by the insured mortgage, provided the priority of the lien of the insured mortgage or its enforceability is not affected, may release or substitute the personal
liability of any debtor or guarantor, or extend or otherwise modify the terms of payment, or release a portion of the estate or interest from the lien of the
insured mortgage, or release any collateral security for the indebtedness.
When the permitted acts of the insured claimant occur and the insured has knowledge of any claim of title or interest adverse to the title to the estate or
interest or the priority or enforceability of the lien of the insured mortgage, as insured, the Company shall be required to pay only that part of any losses insured against by this policy which shall exceed the amount, if any, lost to the
Company by reason of the impairment by the insured claimant of the Compa- ny’s right of subrogation.
(c) The Company’s Rights Against Non-insured Obligors. The Company’s right of subrogation against non-insured obligors shall
exist and shall include, without limitation, the rights of the insured to indem-
nities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments which provide for subroga- tion rights by reason of this policy.
The Company’s right of subrogation shall not be avoided by acquisition of the insured mortgage by an obligor (except an obligor described in Section l(a)(ii) of these Conditions and Stipulations) who acquires the insured mort-
gage as a result of an indemnity, guarantee, other policy of insurance, or bond
and the obligor will not be an insured under this policy, notwithstanding Sec- tion 1 (a)(i) of these Conditions and Stipulations.
13. ARBITRATION
Unless prohibited by applicable law, either the Company or the insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the insured
arising out of or relating to this policy, any service of the Company in connec-
tion with its issuance or the breach of a policy provision or other obligation. All arbitrable matters when the Amount of insurance is $1,000,000 or less shall
be arbitrated at the option of either the Company or the insured. All arbitrable
matters when the Amount of insurance is in excess of $l,OOO,OOO shall be
arbitrated only when agreed to by both the Company and the insured. Arbitra- tion pursuant to this policy and under the Rules in effect on the date the
demand for arbitration is made or, at the option of the insured, the Rules in
effect at Date of Policy shall be binding upon the parties. The award may include attorneys’ fees only if the laws of the state in which the land is located permit a court to award attorneys’ fees to a prevailing party. Judgment upon
the award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof.
The law of the situs of the land shall apply to an arbitration under the Title insurance Arbitration Rules.
A copy of the Rules may be obtained from the Company upon request.
14. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT
(a) This policy together with all endorsements, if any, attached hereto bythe Company is the entire policy and contract between the insured and the Com-
pany. in interpreting any provision of this policy, this policy shall be construed as a whole.
(b) Any claim of loss or damage, whether or not based on negligence, and
which arises out of the status of the lien of the insured mortgage or of the title
to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy.
(c) No amendment of or endorsement to this policy can be made except by
a writing endorsed hereon or attached hereto signed by either the President, a
Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company.
15. SEVERABILITY
in the event any provision of this policy is held invalid or unenforceable
under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect.
16. NOTICES, WHERE SENT
All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy and shall be addressed to the Company at the issuing office or to:
Chicago - ‘e insurance Company
Claims Ldttment
171 North Clark Street
Chicago, Illinois 60601-3294
Your Loan Reference: F. iFIC VISTA LAS FL
SCHEDULE A
Policy No : 203071631-U52
Premium: $700.00
Amount of Insurance: $363,948.00
Date of Policy: March 2, 2001 at 12:31 PM
1. Name of Insured:
CITY OF CARLSBAD, A MUNICIPAL CORPORATION
2. The estate or interest in the land described in this schedule and which is encumbered by the insured mortgage is:
A FEE
3. Title to the estate or interest in the land is vested in:
PACIFIC VISTA LAS FLORES, L-P., A CALIFORNIA LIMITED PARTNERSHIP
4. The insured mortgage and assignments thereof, if any, are described
as follows:
SEE ATTACHED EXHIBIT - INSURED MORTGAGE
Policy No. 203071631-U52
Page i
JZXHIBIT ( INSURED MORTGAGE )
A DEED OF TRUST TO SECURE AN INDEBTEDNESS IN THE ORIGINAL AMOUNT SHOWN BELOW
AMOUNT :
DATED:
TRUSTOR:
TRUSTEE:
BENEFICIARY:
RECORDED:
$ 363,948.OO
FEBRUARY 25, 2001
PACIFIC VISTA LAS FLORES, L.P., A CALIFORNIA LIMITED
PARTNERSHIP
CHICAGO TITLE COMPANY, A CALIFORNIA CORPORATION
CITY OF CARLSBAD, A MUNICIPAL CORPORATION
MARCH 2, 2001 AS FILE NO. 2001-0120222, OF OFFICIAL
RECORDS
AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120219, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120220, OF OFFICIAL
RECORDS
A
Policy No: 203071631-W
h
Page 2
SCHEDULE A (continued)
5. The land referred to in this policy is situated in the State of California,
County of SAN DIEGO and is described as follows:
LOT 134 OF CITY OF CARLSBAD TRACT 97-14, UNIT NO. 1, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13840,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 1,
1999.
-
Policy No: 203071631- :
SCHEDULE B
EXCEPTIONS FROM COVERAGE
An
B
K
L
M
This policy does not insure against loss or damage (and the Company will
not pay costs, attorneys' fees or expenses) which arise by reason of:
PART I
PROPERTY TAXES, INCLUDING ANY ASSESSMENTS COLLECTED WITH TAXES, TO BE
LEVIED FOR THE FISCAL YEAR 2001-2002 THAT ARE A LIEN NOT YET DUE.
THE LIEN OF SUPPLEMENTAL OR ESCAPED ASSESSMENTS OF PROPERTY TAXES, IF
ANY, MADE PURSUANT TO THE PROVISIONS OF PART 0.5, CHAPTER 3.5 OR PART 2,
CHAPTER 3, ARTICLES 3 AND 4 RESPECTIVELY (COMMENCING WITH SECTION 75) 0~
THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA AS A RESULT OF
THE TRANSFER OF TITLE TO THE VESTEE NAMED IN SCHEDULE A; OR AS A RESULT
OF CHANGES IN OWNERSHIP OR NEW CONSTRUCTION OCCURRING PRIOR TO DATE OF
POLICY.
A DOCUMENT ENTITLED "GRANT OF EASEMENTS AND DECLARATION OF COVENANTS ",
DATED NOVEMBER 7, 1996 EXECUTED BY PACWEST, LTD., A CALIFORNIA LIMITED
PARTNERSHIP AND PACWEST QA-I, A CALIFORNIA LIMITED PARTNERSHIP, SUBJECT
TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED
NOVEMBER 7, 1996 AS FILE NO. 1996-0565040, OFFICIAL RECORDS.
THE EXACT LOCATION AND EXTENT OF SAID EASEMENT IS NOT DISCLOSED OF
RECORD.
A DOCUMENT ENTITLED "CERTIFIED COPY OF RESOLUTION NO. 97-528 OVERRULING
AND DENYING PROTESTS AND ESTABLISHING BRIDGE AND THOROUGHFARE DISTRICT
NO. 2 (AVIARA PARKWAY-POINSETTIA LANE) TO FINANCE THE COSTS OF MAJOR
PUBLIC IMPROVEMENTS IN SAID CITY", DATED JULY 8, 1997 EXECUTED BY THE
CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS
THEREIN CONTAINED, RECORDED JULY 22, 1997 AS FILE NO. 1997-0349124,
OFFICIAL RECORDS.
5. THE FACT THAT SAID LAND LIES WITHIN THE BOUNDARIES OF COMMUNITY
FACILITIES DISTRICT NO. 3, CARLSBAD UNIFIED SCHOOL DISTRICT, AS DISCLOSED
BY ANNEXATION MAP NO. 2, RECORDED AUGUST 20, 1997 AS FILE NO.
1997-0403172, OFFICIAL RECORDS.
NOTICE OF ANNEXATION OF TERRITORY RECORDED NOVEMBER 21, 1997 AS DOCUMENT
NO. 97-590891 OFFICIAL RECORDS.
AMENDMENT TO NOTICE OF SPECIAL TAX LIEN RECORDED NOVEMBER 21, 1997 AS
DOCUMENT NO. 97-590892 OFFICIAL RECORDS.
SAID DOCUMENT RECITES, IN PART:
Policy No: 203071631-U:
Page 2 SCHEDULE B -PART I (continued)
-
NOTICE - THIS DOCUMENT SHALL ACT TO SUPPLEMENT THE NOTICES OF SPECIAL TAX
LIEN PREVIOUSLY RECORDED FOR COMMUNITY FACILITIES DISTRICT NO. 3 OF THE
CARLSBAD UNIFIED SCHOOL DISTRICT RECORDED ON APRIL 26, 1994, AND JULY 27,
1995, IN THE SAN DIEGO COUNTY RECORDER'S OFFICE AS INSTRUMENT NO.
1994-0277976 AND 1995-0322359, RESPECTIVELY.
NOTICE - THIS DOCUMENT SHALL NOT SUPERSEDE THE ABOVE-REFERENCED DOCUMENTS.
6. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO:
PURPOSE:
RECORDED:
AFFECTS:
SAN DIEGO GAS & ELECTRIC COMPANY, A CORPORATION
UNDERGROUND ELECTRIC FACILITIES AND UNDERGROUND
COMMUNICATION FACILITIES, AND APPURTENANCES, TOGETHER
WITH THE RIGHT OF INGRESS THERETO AND EGRESSS
THEREFROM
MARCH 13, 1998 AS FILE NO. 1998-0137501, OFFICIAL
RECORDS
THE EXACT LOCATION AND EXTENT OF SAID EASEMENT IS NOT
DISCLOSED OF RECORD.
7. A DOCUMENT ENTITLED "NOTICE CONCERNING AIRCRAFT ENVIRONMENTAL IMPACTS CASE
NO. CT 97-14", DATED JULY 20, 1999 EXECUTED BY STANDARD PACIFIC CORP., A
DELAWARE CORPORATION AND THE CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS,
PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED AUGUST 3, 1999 AS
DOCUMENT NO. 99-536800 OFFICIAL RECORDS.
8. A DOCUMENT ENTITLED "NOTICE AND WAIVER CONCERNING PROXIMITY OF THE
EXISTING AVIARA PARKWAY TRANSPORTATION CORRIDOR CASE NO. 97-14", DATED
JULY 20, 1999 EXECUTED BY STANDARD PACIFIC CORP, A DELAWARE CORPORATION
AND THE CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND
CONDITIONS THEREIN CONTAINED, RECORDED AUGUST 3, 1999 AS DOCUMENT NO.
99-536801 OFFICIAL RECORDS.
9. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO:
PURPOSE:
RECORDED:
AFFECTS:
THE COUNTY OF SAN DIEGO
AVIGATION EASEMENT
AUGUST 6, 1999 AS DOCUMENT NO. 99-545494 OFFICIAL
RECORDS
ALL AIR SPACE ABOVE SAID LAND
10. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT DRAINAGE", DATED JUNE 30,
1999 EXECUTED BY STANDARD PACIFIC CORP., A DELAWARE CORPORATION AND THE
CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS
Policy No: 203071631-U.
Page 3 SCHEDULE B - PART I (continued)
THEREIN CONTAINED, RECORDED AUGUST 9, 1999 AS DOCUMENT NO. 99-550754
OFFICIAL RECORDS.
11. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT DRAINAGE", DATED JULY 9, 1999
EXECUTED BY STANDARD PACIFIC CORP., A DELAWARE CORPORATION AND THE CITY OF
CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN
CONTAINED, RECORDED AUGUST 9, 1999 AS DOCUMENT NO. 99-550755 OFFICIAL
RECORDS.
12. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT GEOLOGICAL FAILURE", DATED
JULY 23, 1999 EXECUTED BY STANDARD PACIFIC CORPORATION, A DELAWARE
CORPORATION AND THE CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS
AND CONDITIONS THEREIN CONTAINED, RECORDED AUGUST 9, 1999 AS DOCUMENT NO.
99-550756 OFFICIAL RECORDS.
13. THE FACT THAT THE OWNERSHIP OF SAID LAND DOES NOT INCLUDE RIGHTS OF ACCESS
TO OR FROM THE STREET OR HIGHWAY ABUTTING SAID LAND, SUCH RIGHTS HAVING
BEEN RELINQUISHED BY THE MAP OF SAID TRACT.
AFFECTS: LOT 134 ADJACENT TO AVIARA PARKWAY
SAID LAND HOWEVER, ABUTS UPON A PUBLIC THOROUGHFARE OTHER THAN THE ROAD
REFERRED TO ABOVE, OVER WHICH RIGHTS OF VEHICULAR INGRESS AND EGRESS HAVE
NOT BEEN RELINQUISHED.
14. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SHOWN OR AS OFFERED FOR DEDICATION ON THE RECORDED MAP SHOWN BELOW.
MAP OF: 13840
EASEMENT
PURPOSE: SIGHT DISTANCE CORRIDOR
AFFECTS: AS SHOWN ON SAID MAP
15. THE EFFECT OF THE FOLLOWING RECITAL CONTAINED ON THE MAP OF SAID LAND MAP
NO. 13840
RECITAL: LOT 134 IS A MULTI-FAMILY LOT.
16. THE EFFECT OF THE FOLLOWING RECITAL CONTAINED ON THE MAP OF SAID LAND MAP
NO. 13840
RECITAL: THE DEVELOPER SHALL DEDICATE TO THE HOMEOWNER'S ASSOCIATION AN
OPEN SPACE MAINTENANCE EASEMENT OVER THOSE PORTION OF LOT 134 AND
INDENTIFIED AS "HOA MAINTENANCE EASEMENT" ON THE TENTATIVE MAP, EXHIBITS "AM _ "E" , DATED OCTOBER 15, 1997; TO ENABLE MAINTENANCE ACTIVITIES
WITHIN THE EASEMENT AREA INCLUDING, BUT NOT LIMITED TO, LANDSCAPING AND
IRRIGATION IN ACCORDANCE WITH THE APPROVED SITE PLAN AND LANDSCAPE PLANS,
REMOVAL OF TRASH, AND EROSON PREVENTION AND REMEDATION.
-
Policy No: 203071631-U.
Page 4 SCHEDULE B -PART I (continued)
Y
Z
At
Aw
AT
AW
17. THE EFFECT THAT THE MAP OF SAID LAND CONTAINS PROVISIONS RELATING TO
PUBLIC IMPROVEMENTS AND GEO-TECHNICAL REQUIREMENTS, ALL AS: SET FORTH ON
SHEET 11 OF SAID MAP NO. 13840.
18. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT DRAINAGE", DATED SEPTEMBER
21, 1999 EXECUTED BY STANDARD PACIFIC CORP., A DELAWARE CORPORATION AND
CITY OF CARLSBAD, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS
THEREIN CONTAINED, RECORDED OCTOBER 20, 1999 AS FILE NO. 1999-0705725, OF
OFFICIAL RECORDS.
19. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT DRAINAGE", DATED NOVEMBER 1,
2000 EXECUTED BY PACIFIC VISTA LAS FLORES, A LIMITED PARTNERSHIP, SUBJECT
TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN CONTAINED, RECORDED
NOVEMBER 20, 2000 AS FILE NO. 2000-0631186, OF OFFICIAL RECORDS.
REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
20. A DOCUMENT ENTITLED "HOLD HARMLESS AGREEMENT GEOLOGICAL FAILURE", DATED
NOVEMBER 1, 2000 EXECUTED BY PACIFIC VISTA LAS FLORES, A LIMITED
PARTNERSHIP, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN
CONTAINED, RECORDED NOVEMBER 20, 2000 AS FILE NO. 2000-0631187, OF
OFFICIAL RECORDS.
REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS.
21. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS
SET FORTH IN A DOCUMENT
GRANTED TO:
PURPOSE:
RECORDED:
AFFECTS:
DANIELS CABLEVISION, INC., A DELAWARE CORPORATION
CABLE TV
FEBRUARY 5, 2001 AS FILE NO. 01-065562, OFFICIAL
RECORDS
THE EXACT LOCATION AND EXTENT OF SAID EASEMENT IS NOT
DISCLOSED OF RECORD.
22. A DEED OF TRUST TO SECURE AN INDEBTEDNESS IN THE ORIGINAL AMOUNT SHOWN
BELOW
AMOUNT : $ 1,318,OOO.OO
DATED: FEBRUARY 22, 2001
TRUSTOR: PACIFIC VISTA LAS FLORES, L.P., A CALIFORNIA LIMITED
PARTNERSHIP
TRUSTEE: PRLAP, INC.
BENEFICIARY: BANE OF AMERICA, N.A.
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120219, OF OFFICIAL
RECORDS
-
Policy No: 203071631-U:
Page 5 SCHEDULE B -PART I (continued)
AY 23. A DOCUMENT ENTITLED "REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS " , DATED FEBRUARY 28, 2001 EXECUTED BY CITY OF CARLSBAD, A
MUNICIPAL CORPORATION AND PACIFIC VISTA LAS FLORES, A CALIFORNIA LIMITED
PARTNERSHIP, SUBJECT TO ALL THE TERMS, PROVISIONS AND CONDITIONS THEREIN
CONTAINED, RECORDED MARCH 2, 2001 AS FILE NO. 2001-0120221, OF OFFICIAL
RECORDS.
AZ AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120219, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120220, OF OFFICIAL
RECORDS
Policy No: 203071631-U52
Page 1
SCHEDULE B
BA 1. A DEED OF TRUST TO SECURE AN INDEBTEDNESS IN THE ORIGINAL AMOUNT SHOWN
BELOW
AMOUNT :
DATED:
TRUSTOR:
TRUSTEE:
BENEFICIARY:
RECORDED:
$135,000.00
JANUARY 1, 2001
PACIFIC VISTA LAS FLORES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP
DSL SERVICE COMPANY, A CALIFORNIA CORPORATION
DOWNEY SAVINGS AND LOAN ASSOCIATION F.A.
MARCH 2, 2001 AS FILE NO. 2001-0120223, OF
OFFICIAL RECORDS
BB AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120219, OF
OFFICIAL RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120224, OF
OFFICIAL RECORDS
AU 2. A DEED OF TRUST TO SECURE AN INDEBTEDNESS IN THE ORIGINAL AMOUNT SHOWN
BELOW
AMOUNT :
DATED:
TRUSTOR:
TRUSTEE:
BENEFICIARY:
RECORDED:
$2,500,000.00
FEBRUARY 13, 2001
PACIFIC VISTA LAS FLORES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP
CHICAGO TITLE COMPANY
VISTA LAS FLORES CORP., A DELAWARE CORPORATION
FEBRUARY 20, 2001 AS FILE NO. 01-096011, OFFICIAL
RECORDS
AV AN ASSIGNMENT OF THE BENEFICIAL INTEREST UNDER SAID DEED OF TRUST, AS
COLLATERAL SECURITY, WHICH NAMES
PART II
In addition to the matters set forth in Part I of this Schedule, the
title to the estate or interest in the land described or referred to in
Schedule A is subject to the following matters, if any be shown, but the
Company insures that these matters are subordinate to the lien or charge
of the insured mortgage upon the estate or interest:
AS ASSIGNEE:
RECORDED:
STANDARD PACIFIC CORP., A DELAWARE CORPORATION
FEBRUARY 20, 2001 AS FILE NO. 2001-096014,
OFFICIAL RECORDS
-
Policy No: 203071631-U.
Page 2 SCHEDULE B -PART II (continued)
BC AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120219, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120225, OF OFFICIAL
RECORDS
AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120222, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120227, OF OFFICIAL
RECORDS
AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120223, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120229, OF OFFICIAL
RECORDS
AA 3. A DEED OF TRUST TO SECURE PERFORMANCE UNDER AN AGREEMENT REFERRED TO
THEREIN, AND ANY OTHER OBLIGATIONS SECURED THEREBY
DATED:
TRUSTOR:
TRUSTEE:
BENEFICIARY:
RECORDED:
FEBRUARY 24, 2000
PACIFIC VISTA LAS FLORES, L-P., A CALIFORNIA
LIMITED PARTNERSHIP
CHICAGO TITLE COMPANY, A CORPORATION
STANDARD PACIFIC CORP., A DELAWARE CORPORATION
MARCH 8, 2000 AS FILE NO. 2000-0118350, OF OFFICIAL
RECORDS
AR AN AGREEMENT TO MODIFY THE TERMS AND PROVISIONS OF SAID DEED OF TRUST AS
THEREIN PROVIDED
EXECUTED BY:
RECORDED:
PACIFIC VISTA LAS FLORES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP AND STANDARD PACIFIC CORP., A
DELAWARE CORPORATION
FEBRUARY 20, 2001 AS FILE NO. 01-096012, OFFICIAL
-
Policy No: 203071631-U.
Page 3 SCHEDULE B -PART II (continued)
RECORDS
As AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: A DEED OF TRUST
RECORDED: FEBRUARY 20, 2001 AS FILE NO. 01-096011, OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: FEBRUARY 20, 2001 AS FILE NO. 01-096013, OFFICIAL
RECORDS
BD AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120219, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120226, OF OFFICIAL
RECORDS
AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120222, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120228, OF OFFICIAL
RECORDS
AN AGREEMENT WHICH STATES THAT THIS INSTRUMENT WAS SUBORDINATED
TO: DEED OF TRUST
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120223, OF OFFICIAL
RECORDS
BY AGREEMENT
RECORDED: MARCH 2, 2001 AS FILE NO. 2001-0120230, OF OFFICIAL
RECORDS
BE JO
ENDORSEMENT
Attached to and forming a part of
Policy No. 203071631 U52
Issued by
CHICAGO TITLE INSURANCE COMPANY
The Company hereby insures against loss which said Insured shall sustain by reason of the following matters:
1. Any incorrectness in the assurance which the Company hereby gives:
(a) That there are no covenants, conditions or restrictions under which the lien of the mortgage referred
to in Schedule A can be cut off, subordinated, or otherwise impaired;
(b) That there are no present violations on said land of any enforceable covenants, conditions or restrictions;
2. (a) Any future violations on said land of any convenants, conditions, or restrictions occurring prior to
acquisition of title to said estate or interest by the Insured, provided such violations result in impairment or loss
of the lien of the mortgage referred to in Schedule A, or result in impairment or loss of the title to said
estate or interest if the Insured shall acquire title in satisfaction of of the indebtedness secured by such mortgage; (b) Unmarketability of the title to said estate or interest by reason of any violation on said land,
occuring prior to acquisition of title to said estate or interest by the Insured, of any convenants, conditions,
or restrictions.
3. Wherever in this endorsement any or all of the words “covenants, conditions or restriction” appear they shall
not be deemed to refer to or include the terms covenants and conditions contained in any lease referred to in Schedule A.
The total liability of the Company under said policy and endorsement therein shall not exceed, in the
aggregate, the face amount of said policy and costs which the Company is obligated under the conditions and
stipulations thereof to pay.
The endorsement is made a part of said policy and is subject to the exclusions from coverage, schedules,
conditions and stipulations therein, except as modified by the provisions hereof.
DOTED MARCH 2,2ca
CHICAGO TITLE INSURANCE COMPANY
Authorized Signatory
ENDORSEMENT 1OOM
Note: This endorsement shallnot be valid or
bino3.g until countersigned by an author&d
s&natoqf
‘... i9 I ‘\ ’ i I
: T - : 1 -
*
G
b
Recorded at the request of
Chicago Title
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn. City Clerk
1200 Carlsbad Village Drive
Carlsbad. CA 92008
203~716.31- L(sL
FEES: 60.00
~. "" .
(Space above for Recorder's Use)
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement")
is made and entered into as of this 28th day of February ,2001, by and between the
City of Carlsbad, a municipal corporation (the "City"), Pacific Vista Las Flores, a California
limited partnership ("Owner").
RECITALS
1. The City has entered into the Loan Agreement with Owner under which the City
will loan funds (the "Loan") to Owner which will be used, together with funds obtained from
other sources, for the development and construction of twenty-eight (28) residential units known
as Pacific Vista Las Flores ("Development"), located on the real property in the City of Carlsbad,
County of San Diego, more particularly described in Exhibit A attached hereto and incorporated
herein (the "Property").
2. The funds loaned to Owner pursuant to the Loan Agreement are City Housing
Trust Fund monies. Such funds are required to be utilized to assist housing affordable to lower
income households. This Agreement is intended to implement this requirement.
3. The City intends to utilize the Development to obtain affordable housing
production credits for the City of Carlsbad Redevelopment Agency pursuant to Health and Safety
Code Section 33413(b)(Z)(A)(ii) as newly constructed housing units located outside of the
Carlsbad Village Redevelopment Project Area and available at affordable housing cost to low
and moderate income households. Such units are required to remain affordable to such
households for not less than the period of the land use controls established in the Redevelopment
Plan for the Carlsbad Village Redevelopment Project Area. This Agreement is also intended to
implement this requirement.
4. The City has agreed to loan funds to Owner on the condition that the
Development be maintained and operated in accordance with Health and Safety Section 33413(b)
and in accordance with additional restrictions concerning affordability, operation, and
maintenance of the Development, as specified in this Agreement.
December 15,2000 1
4612
5. In consideration of receipt of the Loan at an interest rate substantially below the
market rate, Owner has further agreed to observe all the terms and conditions set forth below.
6. Owner holds a fee interest in the Development land, and in all improvements to be
constructed by Owner on such land.
7. In order to ensure that the entire Development will be used and operated in
accordance with these conditions and restrictions, the City and the Owner wish to enter into this
Agreement.
THEREFORE, the City and the Owner hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions
When used in this Agreement, the following terms shall have the respective meanings
assigned to them in this Article 1. -
(a) "Adjusted Income" shall mean the total anticipated annual income of all
persons in a household, as calculated in accordance with 25 California Code of Regulations
Section 6914 or pursuant ti, a successor State housing program that utilizes a reasonably similar
method of calculation of adjusted income. In the event that no such program exists, the City
shall provide the Owner with a reasonably similar method of calculation of adjusted income as
provided in said Section 6914.
(b) "Agency" shall mean the Carlsbad Redevelopment Agency, Carlsbad,
California, a public body, corporate and politic.
(c) "Agreement" shall mean this Regulatory Agreement and Declaration of
Restrictive Covenants.
(d) "City" shall mean the City of Carlsbad, a municipal corporation.
(e) "Deed of Trust" shall mean the deed of trust to the City on the Property
which secures repayment of the Loan and performance of this Agreement.
(f) "Development" shall mean the Property and the twenty-eight (28) units to
be constructed on the Property, as well as all landscaping, roads and parking spaces existing
thereon, as the same may from time to time exist.
(g) "HCD" shall mean the California Department of Housing and Community
Development.
(h) "Loan" shall mean all funds loaned to Owner pursuant to the Loan
Agreement.
December 15,2000 2
4613
(i) "Loan Agreement" shall mean the City Loan Agreement entered into by
and between the City and Owner and dated of even date herewith.
6) "Lower Income Household" shall mean a household with an Adjusted
Income that does not exceed the qualifying limits for very low income households as established
and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937,
and as published by HCD.
(k) "Median Income" shall mean the median gross yearly income adjusted for
actual household size, in the County of San Diego, California, as published from time to time by
HCD. In the event that such income determinations are no longer published, or are not updated
for a period of at least eighteen (18) months, the City shall provide the Owner with other income
determinations which are reasonably similar with respect to methods of calculation to those
previously published by HCD.
(I) "Moderate Income Household" shall mean a household whose annual
gross income does not exceed ninety percent (90%) of Median Income, adjusted for household
size.
(m) "Moderate Income Units" shall mean the Units limited to occupancy by
Moderate Income Households pursuant to Section 2.1 below.
(n) "Note" shall mean the promissory note from the Owner to the City
evidencing all or any part of the Loan.
(0) "Owner" shall mean Pacific Vista Las Flores, a California limited
partnership and its successors and assigns to the Development.
(p) "Property" shall mean the real property described in Exhibit A attached
hereto and incorporated herein.
(4 "Rent" shall mean the total of monthly payments by the tenants of a Unit
for the following: use and occupancy of the Unit and land and associated facilities, including
parking; any separately charged fees or service charges assessed by Owner which are required of
all tenants, other than security deposits; an allowance for the cost of an adequate level of service
for utilities paid by the tenant, including garbage collection, sewer, water, electricity, gas and
other heating, cooking and refrigeration fuel, but not telephone service; any other interest, taxes,
fees or charges for use of the land or associated facilities and assessed by a public or private
entity other than Owner, and paid by the tenant.
(r) "Term" shall mean the period of time beginning on the date of recordation
of this Agreement and ending fifty-five (55) years after a Certificate of Occupancy is issued by
the City for all Units.
December 15,2000 3
(s) “Units” shall mean the twenty-eight (28) rental units to be constructed on
the Property by the Owner, but excluding therefrom one (1) resident manager’s unit.
(v) “Very Low Income” shall mean shall mean a household whose annual
gross income does not exceed fifty percent (50%) of Median Income, adjusted for household
size.
(w) Very Low Income Unit” shall mean the Units limited to occupancy by
Moderate Income Households pursuant to Section 2 below.
ARTICLE 2
AFFORDABILITY COVENANTS
2.1 Occuuancv Reauirement. Thirteen of the Units shall be rented and occupied by
or, if vacant, available for rental and occupancy by Very Low Income Households. The
remainder of the Units shall be occupied by Moderate Income Households.
Low
2.2 Allowable Rent.
(a) Subject to Section 2.3 below, the Rent charged the occupants of the Very
Income Units shall not exceed one-twelfth of thirty percent (30%) of fifty percent (50%) of
Median Income, adjusted for household size. The Rent charged the occupants of the Moderate
Income Units shall not exceed one-twelfth of thirty percent (30%) of ninety percent (90%) of
Median Income, adjusted for household size.
(b) Subject to Section 2.3@) below, in calculating the allowable Rent for all
Units, the following assumed household sizes shall be utilized
Number of Bedrooms Assumed Household Size
Studio
One
Two
Three
Four
2.3 Increased Income of Occupying Households.
(a) In the event, upon recertification of an occupant household’s income, the
Owner discovers that a Very Low Income Household no longer qualifies as a Very Low Income
Household (but does qualify as a Moderate Income Household), such household’s Unit shall be
considered a Moderate Income Unit (and the Rent may be increased to one-twelfth of thirty
percent of ninety percent (90%) of Median Income upon sixty (60) days written notice to the
household) and the Owner shall rent the next available Very Low Income Unit to a Very Low
Income Household to comply with the requirements of Section 2.1 above. In the event that the
income of a Very Low Income Household or a Moderate Income Household increases above the
qualifying limit for a Moderate Income Household, the rent shall remain at the level required for
December 15,2000 4
4615
a Moderate Income Unit and the Unit shall be deemed to be a Moderate Income Unit until the
occupying household vacates the Unit, and the next available Unit shall be rented to a Very Low
Income Household or an Moderate Income Household as necessary to meet the requirements of
Section 2.1 above. Moreover, a Unit occupied by a Very Low Income Household or Moderate
Income Household shall be deemed, upon the termination of such Very Low Income Household’s
or Moderate Income Household’s occupancy, to be continuously occupied by a Very Low
Income Household or a Moderate Income Household, as applicable, until reoccupied, at which
time the character of the Unit shall be redetermined.
(b) If the Development is subject to federal low income housing tax credit
requirements, the provisions of those requirements regarding assumed household size and
continued occupancy by households whose incomes exceed the eligible income limitations and
rents to be charged to those households shall apply in place of the provisions set forth in
subsections 2.2(b) and 2.3(a) above.
2.4 Lease Provisions. Owner shall include in leases for all Units provisions which
authorize Owner to immediately terminate the tenancy of any household one or more of whose
members misrepresented any fact material to the household’s qualification as a Very Low Income
Household or a Moderate Income Household. Each lease or rental agreement shall also provide
that the household is subject to annual certification in accordance with Section 3.1 below, and
that, if the household’s income increases above the applicable limits for a Very Low Income
Household or a Moderate Income Household, as applicable, such household’s Rent may be
subject to increase.
2.5 Section 8 Certificate Holders. The Owner will accept as tenants, on the same
basis as all other prospective tenants, persons who are recipients of federal certificates for rent
subsidies pursuant to the existing housing program under Section 8 of the United States Housing
Act, or its successor. The Owner shall not apply selection criteria to Section 8 certificate or
voucher holders that is more burdensome than criteria applied to all other prospective tenants,
nor shall the Owner apply or permit the application of management policies or lease provisions
with respect to the Development which have the effect of precluding occupancy of units by such
prospective tenants.
2.6 Condominium Conversion. The Owner shall not convert Development units to
condominium or cooperative ownership or sell condominium or cooperative conversion rights to
the Property during the Term of this Agreement.
ARTICLE 3
INCOME CERTIFICATION AND REPORTING
3.1 Income Certification. The Owner will obtain, complete and maintain on file,
immediately prior to initial occupancy and annually thereafter, income certifications from each
Very Low Income Household and each Moderate Income Household renting any of the Units.
The Owner shall make a good faith effort to verify that the income provided by an applicant or
occupying household in an income certification is accurate by taking one or more of the
December 15,2000 5
4616
following steps as a part of the verification process: (1) obtain a pay stub for the most recent pay
period; (2) obtain an income tax return for the most recent tax year; (3) conduct a credit agency
or similar search; (4) obtain an income verification form from the applicant's current employer;
(5) obtain an income verification form from the Social Security Administration and/or the
California Department of Social Services if the applicant receives assistance from either of such
agencies; or (6) if the applicant is unemployed and has no such tax return, obtain another form of
independent verification. Copies of tenant income certifications shall be available to the City
upon written request.
3.2 Annual Report to City. Each year Owner shall submit an annual report to the
City, in a form approved by the City. The annual report shall include for each Unit covered by
this Agreement, the Rent and the income and household size of the household occupying the
Unit. The report shall also state the date the tenancy commenced for each rental Unit and such
other information as the City may be required by law to obtain.
3.3 Additional Information. Owner shall provide any additional information
reasonably requested by the City. Upon 5 days prior written request and during regular business
hours, the City shall have the right to examine and make copies of all books, records or other
documents of Owner which pertain to any Unit.
3.4 Records. Owner shall maintain complete, accurate and current records pertaining
to the Units, and, upon 5 days prior written request by the City, shall permit any duly authorized
representative of the City to inspect records, including records pertaining to income and
household size of tenant households.
3.5 Welfare Reform Act Compliance. Unless Owner is otherwise exempt from the
following requirement under applicable law, Owner shall comply with the requirements of the
Public Responsibility and Work Opportunity Reform Act of 1996, as amended, including,
without limitation, verifying the citizenship or immigration status of prospective tenants in
accordance with the verification procedures established under such Act.
ARTICLE 4
OPERATION OF THE DEVELOPMENT
4.1 Residential Use. The Development shall be operated only for residential use. No
part of the Development shall be operated as transient housing.
4.2 Compliance with Loan Ameement. Owner shall comply with all the terms and
provisions of the Loan Agreement.
4.3 Property Tax Exemption. Owner shall only apply for a property tax exemption
for the Property under Revenue and Taxation Section 214(g), and not under any other provision
of law, without the City's prior written consent, which consent, shall not be unreasonably
withheld.
December 15,2000 6
461 7
4.4 Taxes and Assessments. Owner shall pay all real and personal property taxes,
assessments and charges and all fianchise, income, employment, old age benefit, withholding,
sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to
prevent any penalty from accruing, or any lien or charge from attaching to the Property;
provided, however, that Owner shall have the right to contest in good faith, any such taxes,
assessments, or charges. In the event Owner exercises its right to contest any tax, assessment, or
charge against it, Owner, on final determination of the proceeding or contest, shall immediately
pay or discharge any decision or judgment rendered against it, together with all costs, charges
and interest.
4.5 Nondiscrimination. All of the Units shall be available for occupancy on a
continuous basis to members of the general public who are income eligible. Owner shall not
give preference to any particular class or group of persons in renting or selling the Units, except
to the extent that the Units are required to be leased to Very Low Income Households and
Moderate Income Households or to Carlsbad Redevelopment Agency or City displacees pursuant
to Section 4.6 below. There shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of any Unit nor shall 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 selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants,
or vendees of any Unit or in connection with the employment of persons for the operation and
management of the Development. All deeds, leases or contracts made or entered into by Owner
as to the Units or the Development or portion thereof, shall contain covenants concerning
discrimination as prescribed by the Loan Agreement.
4.6 Preference to Disulacees. Owner shall give a preference in the rental of any Units
to eligible households displaced by activity of the Carlsbad Redevelopment Agency or the City
upon receiving a written request of the Agency or the City regarding such displacement.
ARTICLE 5
PROPERTY MANAGEMENT AND MAINTENANCE
5.1 Management Responsibilities. The Owner is responsible for all management
functions with respect to the Development, including without limitation the selection of tenants,
certification and recertification of household size and income, evictions, collection of rents and
deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital
items, and security. The City and the Agency shall have no responsibility over management of
the Development. The Owner shall retain a professional property management company
approved by the City in its reasonable discretion to perform its management duties hereunder,
unless the Owner demonstrates to the City that it has the capacity to self-manage the
Development and receives written City approval for self-management. A resident manager shall
also be required, selection of whom shall be at the discretion of the Owner.
December 15,2000 7
5.2 Management Agent: Periodic Reports. The Development shall at all times be
managed by an experienced management agent reasonably acceptable to the City, with
demonstrated ability to operate residential facilities like the Development in a manner that will
provide decent, safe, and sanitary housing (as approved, the "Management Agent"). Prior to the
first occupancy permit for any building within the Development, the Owner shall submit for the
City's approval the identity of any proposed Management Agent. The Owner shall also submit
such additional information about the background, experience and financial condition of any
proposed Management Agent as is reasonably necessary for the City to determine whether the
proposed Management Agent meets the standard for a qualified Management Agent set forth
above. If the proposed Management Agent meets the standard for a qualified Management
Agent set forth above, the City shall approve the proposed Management Agent by notifying the
Owner in writing. Unless the proposed Management Agent is disapproved by the City within
thirty (30) days, which disapproval shall state with reasonable specificity the basis for
disapproval, it shall be deemed approved.
5.3 Performance Review. The City reserves the right to conduct an annual (or more
tiequently, if deemed necessary by the City) review of the management practices and financial
status of the Development. The purpose of each periodic review will be to enable the City to
determine if the Development is being operated and managed in accordance with the
requirements and standards of this Agreement. The Owner shall cooperate with the City in such
reviews.
5.4 Reulacement of Management Agent. If, as a result of a periodic review, the City
determines in its reasonable judgement that the Development is not being operated and managed
in accordance with any of the material requirements and standards of this Agreement, the City
shall deliver notice to Owner of its intention to cause replacement of the Management Agent,
including the reasons therefor. Within fifteen (15) days of receipt by Owner of such written
notice, City staff and the Owner shall meet in good faith to consider methods for improving the
financial and operating status of the Development, including, without limitation, replacement of
the Management Agent.
If, after such meeting, City staff recommends in writing the replacement of the
Management Agent, Owner shall promptly dismiss the then Management Agent, and shall
appoint as the Management Agent a person or entity meeting the standards for a Management
Agent set forth in Section 5.2 above and approved by the City pursuant to Section 5.2 above.
Any contract for the operation or management of the Development entered into by Owner
shall provide that the contract can be terminated as set forth above. Failure to remove the
Management Agent in accordance with the provisions of this Section shall constitute default
under this Agreement, and the City may enforce this provision through legal proceedings as
specified in Section 6.3.
5.5 Approval of Management Policies. The Owner shall submit its written
management policies with respect to the Development to the City for its review, and shall amend
such policies in any way necessary to ensure that such policies comply with the provisions of this
Agreement.
December 15,2000 8
4619
5.6 ProDertv Maintenance. The Owner agrees, for the entire Term of this Agreement,
to maintain all interior and exterior improvements, including landscaping, on the Property in
good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with
all applicable laws, rules, ordinances, orders and regulations of all federal, state, county,
municipal, and other governmental agencies and bodies having or claiming jurisdiction and all
their respective departments, bureaus, and officials.
The City places prime importance on quality maintenance to protect its investment and to
ensure that all City-assisted affordable housing projects within the City are not allowed to
deteriorate due to below-average maintenance. Normal wear and tear of the Development will be
acceptable to the City assuming the Owner agrees to provide all necessary improvements to
assure the Development is maintained in good condition. The Owner shall make all repairs and
replacements necessary to keep the improvements in good condition and repair.
In the event that the Owner breaches any of the covenants contained in this section and
such default continues for a period of five (5) days after written notice from the City with respect
to graffiti, debris, and waste material, or thirty (30) days after written notice with respect to
general maintenance, landscaping and building improvements, (and subject to any stricter
requirements included in any applicable City ordinance) then the City, in addition to whatever
other remedy it may have at law or in equity, shall have the right to enter upon the Property and
perform or cause to be performed all such acts and work necessary to cure the default. Pursuant
to such right of entry, the City shall be permitted (but is not required) to enter upon the Property
and perform all acts and work necessary to protect, maintain, and preserve the improvements and
landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property,
in the amount of the reasonable expenditures arising from such acts and work ofprotection,
maintenance, and preservation by the City andor costs of such cure, including an administrative
charge equal to ten percent (10%) of such expenditures, which amount shall be promptly paid by
the Owner to the City upon demand.
ARTICLE 6
MISCELLANEOUS
6.1 m. The provisions of this Agreement shall apply to the Property for the entire
Term even if the entire Loan is paid in full prior to the end of the Term. This Agreement shall
bind any successor, heir or assign of Owner, whether a change in interest occurs voluntarily or
involuntarily, by operation of law or otherwise, except as expressly released by the City. The
City makes the Loan on the condition, and in consideration of, this provision, and would not do
so otherwise.
6.2 Covenants to Run With the Land. The City and the Owner hereby declare their
express intent that the covenants and restrictions set forth in this Agreement shall run with the
land, and shall bind all successors in title to the Property, provided, however, that on the
expiration of the Term of this Agreement said covenants and restrictions shall expire. Each and
every contract, deed or other instrument hereafter executed covering or conveying the Property or
December 15.2000 9
4 620
any portion thereof shall be held conclusively to have been executed, delivered and accepted
subject to such covenants and restrictions, regardless of whether such covenants or restrictions
are set forth in such contract, deed or other instrument, unless the City expressly release such
conveyed portion of the Property from the requirements of this Agreement.
6.3 Enforcement by the City. If Owner fails to perform any obligation under this
Agreement, and fails to cure the default within 30 days after the City has notified the Owner in
writing of the default or, if the default cannot be cured within 30 days, failed to commence to
cure within 30 days and thereafter diligently pursue such cure to completion within ninety (90)
days (and subject also to the notice and cure rights of the limited partner of Borrower set forth in
Section 7.1(1) of the Loan Agreement), the City shall have the right to enforce this Agreement by
any or all of the following actions, or any other remedy provided by law:
(a) Calling the Loan. The City may declare a default under the Note,
accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed
Of Trust.
(b) Action to ComDel Performance or for Damages. The City may bring an
action at law or in equity to compel Owner's performance of its obligations under this
Agreement, and/or for damages.
(c) Remedies hovided Under Loan Aaeement. The City may exercise any
other remedy provided under the Loan Agreement.
6.4 Attornevs Fees and Costs. In any action brought to enforce this Agreement, the
prevailing party shall be entitled to all reasonable costs and expenses of suit, including
reasonable attorneys' fees. This section shall be interpreted in accordance with California Civil
Code Section 1717 and judicial decisions interpreting that statute.
6.5 Recordina and Filing. The City and the Owner shall cause this Agreement, and
all amendments and supplements to it, to be recorded against the Property in the Official Records
of the County of San Diego.
6.6 Governing Law. This Agreement shall be governed by the laws of the State of
California.
6.7 Amendments. This Agreement may be amended only by a written instrument
executed by all the parties hereto or their successors in title, and duly recorded in the real
property records of the County of San Diego, California.
6.8 Notice. All notices given or certificates delivered under this Agreement shall be
deemed received on the delivery or refusal date shown on the delivery receipt, if: (i) personally
delivered by a commercial service which furnishes signed receipts of delivery or (ii) mailed by
certified mail, return receipt requested, postage prepaid, addressed as shown on the signature
page. Any of the parties may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or communications shall be sent.
December 15,2000 10
4621
6.9 Severability. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions of this
Agreement shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by
duly authorized representatives, all on the date first written above.
BORROWER CITY
Pacific Vista Las Flores, L.P. a California
limited Partnership
By: Wakeland Housing and
Development Corporation, a California
By:
By: San Diego Interfaith Housing Approve as to Form:
Foundation, a California Nonprofit
By:
Rona R. Ball, City Attorney
December 15.2000 11
4622
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
On 3-/- 01 , before me, 76 5s /ue 4 dfl- E'
Name and Tfle of Mlicer (e~g , "Jane 00s. Notary Public")
personally appeared A- +t-cwem
Name(r1 of Signer(r1
dpersonally known to me
Llvia ui a-
eqiamis
to be the person(@ whose name@&we
subscribed to the within instrument and
acknowledged to me thebke+executed
the same in &?he+/&& authorized
capacity(i@, and that by-hwkek
signature(@ on the instrument the personf,sf or
the entity upon behalf of which the personla)
acted, executed the instrument.
Place Notary Seal Above
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaflachment of this form to another document.
Document Date: Number of Pages:
Capacity(ies) Claimed by Signer
0 Individual
0 Corporate Officer - Title(s):
0 Partner - n Limited 0 General
0 Attorney in Fact
Guardian or Conservator
Signer Is Representing:
B 1999 Ns4,Onaf NOlq ~SOC,Sl,On. 9350 DS 50m Am.. PO. BOX 2402. C"S,SW~. CA P131 szwz . w "aliOnnsl"0taryo.Q Prod NO 5907 Reorder Call Tdiwree 1~8W.8ib.6827
4623
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
personally appeared
Hproved to me on the basis of satisfactory
0 personally known to me
the entity upon behalf of which the person(s)
acted, executed the instrument.
NESS my hand and official seal.
place N~ary Seal Above
Though the informalion below is not required by law, if may prove valuable to Persons relying on the document
and could prevenl fraudulent removal and reanachmenl of this form to anolher document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
0 Individual
0 Corporate Officer - Title(s):
0 Partner "0 Limited D General
0 Attorney in Fact
0 Guardian or Conservator
Signer Is Representing:
B 1991 Natwmal Notary Asroc#al#on. 9350 De Sola Ave.. P.0 Box 2402 . Chalrwonh. CA 97313-2402 Prod. No 5907 Reorder Cail Toil-Free 1-800-876-6827
:ALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California I
dpersonally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person@ whose name(@ is/-
subscribed to the within instrument and
the same in his/Mr/tbeir authorized
acknowledged to me that he/fhe/tbey executed
capacity(ieS), and that by hislbierltheir
the entity upon behalf of which the person@)
acted, executed the instrument.
-, signature(&) on the instrument the person@). or
Place Notary Seal Above
Though the information below is not required by law, If may pmve valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached
Title or Type of Document:
Document Date: x\ IT\, 0 \ Number of Pages:
Signer@) Other Than Named Above:
Capacity(ies) Clai -
Signer's Name: &X. ALJ vn*&(
0 Individual 117' Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Trustee
0 Attorney in Fact
U Guardian or Conservator
0 Other:
Signer Is Representing:
EXHIBIT A
Property Description
A- 1
4626
LOT 134 OF CITY OF CARLSBAD TRACT 97-14, UNIT
NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 13840, FILE IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 1,1999
Recorded at the request Of
Chicago Title nf3C u # 2001-0120222
RECORDING REQUESTED BY MAR 02. 2001 12:31 Pi.9
AND WHEN RECORDED MAIL TO: DFFICIk REMlRDs SAN DIEGO WNTY REWRDER'S OFFICE City of Carlsbad MizGoRy J. SIIITH, M#NIy REWRDER
City Clerk's Office FEES: l9.00
Attn. City Clerk
1200 Carlsbad Village Drive
Carlsbad. CA 92008
4 627 MY: 2
7 16.31- I451 2001-0120222
CITY DEED OF TRUST AND SECURITY AGREEMENT
THIS CITY D D OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") is
made as of 2 Februar 2001, by and among Pacific Vista Las Flores, a California Limited
Partnership, ("Trustor"), Chicago Title Company , acalifornia Co. ("Trustee"), and the
City of Carlsbad, a municipal corporation ("Beneficiary").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions
hereinafter set forth, Trustor's leasehold interest in the property located in the County of San
Diego, State of California, that is described in the attached Exhibit A, incorporated herein by this
reference (the "Property").
TOGETHER WITH all interest, estates or other claims, both in law and in equity which
Trustor now has or may hereafter acquire in the Property and the rents;
TOGETHER WITH Trustor's interest in all easements, rights-of-way and rights used in
connection therewith or as a means of access thereto, includmg (without limiting the generality
of the foregoing) all tenements, hereditaments and appurtenances thereof and thereto;
TOGETHER WITH Trustor's interest in any and all buildings and improvements of every
kind and description now or hereafter erected thereon, and all property of the Trustor now or
hereafter affixed to or placed upon the Property;
TOGETHER WITH Trustor's interest in all building materials and equipment now or
hereafter delivered to said property and intended to be installed therein;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed,
adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to
or used in connection with the Property;
December 15,2000 1
4 628
TOGETHER WITH Trustor's estate, interest, right, title, other claim or demand, of every
nature, in and to such property, including the Property, both in law and in equity, including, but
not limited to, all deposits made with or other security given by Trustor to utility companies, the
proceeds from any or all of such property, including the Property, claims or demands with
respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may
hereafter acquire, any and all awards made for the taking by eminent domain or purchase in lieu
thereof of the whole or any part of such property, including without limitation, any awards
resulting from a change of grade of streets and awards for severance damages to the extent
Beneficiary has an interest in such awards for taking as provided in Paragraph 4.1 herein; and
TOGETHER WITH all of Trustor's interest in 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, and all renewals or replacements thereof or articles in substitution therefor, whether or
not the same are, or shall be attached to said building or buildings in any manner.
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.
FOR THE PURPOSE OF SECURING:
(a) Payment ofjust indebtedness of Trustor to Beneficiary as set forth in the Note and
the Loan Agreement (both as defined in Article 1 below) until paid or cancelled. Said principal
and other payments shall be due and payable as provided in the Note and the Loan Agreement.
The Note, the Loan Agreement, and the Regulatory Agreement (defined below), and all their
terms are incorporated herein by reference, and this conveyance shall secure any and all
extensions thereof, however evidenced; and
(b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to
the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to
advance said sums and the expiration of any applicable cure period, with interest thereon as
provided herein; and
(c) Performance of every obligation, covenant or agreement of Trustor contained
herein and in the Loan Documents (defined in Section 1.2 below).
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
ARTICLE 1 DEFINITIONS
In addition to the terms defined elsewhere in this Deed of Trust, the following terms shall
have the following meanings in this Deed of Trust:
December 15,2000 L
Section 1.1 The term "Loan Agreement" mean t at certain City Loan Agreement
between Trustor and Beneficiary dated as of February $&@I 1, providing for the Beneficiary
to loan to Trustor Three Hundred Sixty Three Thousand Nine Hundred Forty-Eight Five Dollars
($363,948) for the development on the Property of improvements.
Section 1.2 The term "Loan Documents" means this Deed of Trust, the Note, the Loan
Agreement, and the Regulatory Agreement.
Section 1.3 The term "Note" means the City Note in the principal amount of Three
Hundred Sixty Three Thousand Nine Hundred Forty-Eight Five Dollars ($363,948) dated
February 28 ,200.1, executed by Trustor in favor of the Beneficiary, the payment of
which is secured by this Deed of Trust. (A copy of the Note is on file with the Beneficiary and
terms and provisions of the Note are incorporated herein by reference.)
Section 1.4 The term "hincipal" means the aggregate of the amounts required to be
paid under the Note.
Section 1.5 The term "Regulatory Agreement" means the Regulatory Agreement by
and between the Trustor, the Beneficiary, and the City of Carlsbad, of even date herewith.
ARTICLE 2
MAINTENANCE AND MODIFICATION OF THE PROPERTY
AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
The Trustor agrees that at all times prior to full payment of the sum owed under the Note,
the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Security or cause
the Security to be maintained and preserved in good condition, subject to Article 4 below. The
Trustor will from time to time make or cause to be made all repairs, replacements and renewals
deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these
matters or for the making of improvements or additions to the Security.
Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all
claims for labor done and for material and services furnished in connection with the Security,
diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation
of labor on the work or construction on the Security for a continuous period of thirty (30) days or
more, and to take all other reasonable steps to forestall the assertion of claims of lien against the
Security of any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary
as its agent (said agency being coupled with an interest) with the authority, but without any
obligation, to file for record any notices of completion or cessation of labor or any other notice
that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the
Loan Documents; provided, however, that Beneficiary shall exercise its rights as agent of Trustor
only in the event that Trustor shall fail to take, or shall fail to diligently continue to take, those
actions as hereinbefore provided, after notice and expiration of all applicable cure periods.
December 15.2000 3
Notwithstanding anything to the contrary contained in this Deed of Trust, Trustor shall
not be obligated to pay any claims for labor, materials or services which Trustor in good faith
disputes and is diligently contesting provided that Trustor shall, at Beneficiary's written request,
within thirty (30) days after the filing of any claim of lien, record in the Office of the Recorder of
San Diego County, a surety bond in an amount 1 and 112 times the amount of such claim item to
protect against a claim of lien, or provide such other security reasonably satisfactory to
Beneficiary.
Section 2.2 Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in
the nature of easements with respect to any property or rights included in the Security except
those required or desirable for installation and maintenance of public utilities including, without
limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law. As to
these exceptions, Beneficiary will grant and/or direct the Trustee to grant such easements.
ARTICLE 3
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
Trustor shall pay, or cause to be paid, prior to delinquency, all taxes, assessments,
charges and levies imposed by any public authority or utility company which are or may become
a lien affecting the Security or any part thereof; provided, however, if such taxes, assessments or
charges may be paid in installments, Trustor may pay in such installments; and provided further,
that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy
so long as Trustor is contesting the legality thereof in good faith and by appropriate proceedings
and Trustor has adequate funds to pay any liabilities contested pursuant to this Section 3.1. The
provisions of this Section 3.1 shall not be construed to require that Trustor maintain a reserve
account, escrow account, impound account or other similar account for the payment of future
taxes, assessments, charges and levies.
In the event that Trustor shall fail to pay any of the foregoing items required by this
Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the
same, after the Beneficiary has notified the Trustor in writing of such failure to pay and the
Trustor fails to fully pay such items within seven (7) business days after receipt of such notice or,
alternatively, provides Beneficiary with evidence Trustor is contesting such items in accordance
with this Section. Any amount so advanced therefor by Beneficiary, together with interest
thereon from the date of such advance at the maximum rate permitted by law, shall become an
additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor
agrees to pay all such amounts.
December 15.2000 4
Section 3.2 Provisions Respecting Insurance,
Trustor agrees to provide insurance conforming in all respects to that required under the
Loan Documents during the course of construction and following completion, and at all times
until all amounts secured by th~s Deed of Trust have been paid and all other obligations secured
hereunder fulfilled, and this Deed of Trust reconveyed.
All such insurance policies and coverages shall be maintained at Trustor's sole cost and
expense. Certificates of insurance for all of the above insurance policies, showing the same to be
in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time
prior to the Beneficiary's receipt of the entire Principal and all amounts secured by this Deed of
Trust.
Section 3.3 Advances.
In the event the Trustor shall fail to maintain the full insurance coverage required by this
Deed of Trust, the Beneficiary, after at least seven (7) days prior written notice to Trustor, may
(but shall be under no obligation to) take out the required policies of insurance and pay the
premiums on the same; and all amounts so advanced therefor by the Beneficiary shall become an
additional obligation of the Trustor to the Beneficiary (together with interest as set forth below)
and shall be secured hereby, which amounts the Trustor agrees to pay on the demand of the
Beneficiary, and if not so paid, shall bear interest kom the date of the advance at the lesser rate
of ten percent (10%) per annum or the maximum amount permitted by law.
ARTICLE 4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages.
All judgments, awards of damages, settlements and compensation made in connection
with or in lieu of (1) taking of all or any part of or any interest in the Property by or under
assertion of the power of eminent domain, (2) any damage to or destruction of the Property or
any part thereof by insured casualty, and (3) any other injury or damage to all or any part of the
hoperty ("Funds") are hereby assigned to and shall be paid to, subject to the requirements of
lienholders senior to Beneficiary, the Beneficiary by a check made payable to the Beneficiary.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement), the Beneficiary
shall be entitled to settle and adjust all claims under insurance policies provided under this Deed
of Trust and may deduct and retain kom the proceeds of such insurance the amount of all
expenses incurred by it in connection with any such settlement or adjustment. All fire and
standard risk or extended coverage (casualty) insurance proceeds shall be applied to the payment
of the costs of repairing or rebuilding that part of the improvements on the Property damaged or
destroyed if (i) the Trustor agrees in writing within ninety (90) days after payment of the
proceeds of insurance that such repair or rebuilding is economically feasible, and (ii) each lender
in connection with outstanding Construction and Permanent Financing (as defined in the Loan
Agreement) permits such repairing or rebuilding, provided that the extent of Trustor's obligation
December 15.2000 5
to restore the improvements shall be limited to the amount of the insurance proceeds. If the
improvements are not repaired or rebuilt as provided in this Section 4.1, all such proceeds shall
be applied to repayment of outstanding loans including the loan secured by this Deed of Trust, in
the order of lien priority. Application of all or any part of the Funds collected and received by
the Beneficiary or the release thereof shall not cure or waive any default under this Deed of
Trust. The rights of the Beneficiary under this Section 4.1 are subject to the rights of any senior
mortgage lender.
ARTICLE 5
AGREEMENTS AFFECTING THE PROPERTY; FURTHER
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
Section 5.1 Other Agreements Affecting Property.
The Trustor shall duly and punctually perform all terms, covenants, condltions and
agreements binding upon it under the Loan Documents and any other agreement of any nature
whatsoever now or hereafter involving or affecting the Security or any part thereof.
Section 5.2 Agreement to Pay Attorneys' Fees and Expenses.
In the event of any Event of Default (as defined below) hereunder, and if the Beneficiary
should employ attorneys or incur other expenses for the collection of amounts due or the
enforcement of performance or observance of an obligation or agreement on the part of the
Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the
Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred
by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the
indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such
expenses are incurred at the lesser of ten percent (10%) per annum or the maximum amount
permitted by law.
Section 5.3 Payment of the Principal.
The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth
in the Note in the amounts and at the times set out therein.
Section 5.4 Personal Property.
To the maximum extent permitted by law, the personal property subject to this Deed of
Trust shall be deemed to be fixtures and part of the real property and this Deed of Trust shall
constitute a fixtures filing under the California Commercial Code. As to any personal property
not deemed or permitted to be fixtures, this Deed of Trust shall constitute a security agreement
under the California Commercial Code.
December 15.2000 6
Section 5.5 Financing Statement.
The Trustor shall execute and deliver to the Beneficiary such financing statements
pursuant to the appropriate statutes, and any other documents or instruments as are reasonably
required to convey to the Beneficiary a valid perfected security interest in the Security. The
Trustor agrees to perform all acts which the Beneficiary may reasonably request so as to enable
the Beneficiary to maintain such valid perfected security interest in the Security in order to
secure the payment of the Note in accordance with its terms. The Beneficiary is authorized to
file a copy of any such financing statement in any jurisdiction(s) as it shall deem appropriate
from time to time in order to protect the security interest established pursuant to this instrument.
Section 5.6 Operation of the Security.
The Trustor shall operate the Security (and, in case of a transfer of a portion of the
Security subject to this Deed of Trust, the transferee shall operate such portion of the Security) in
full compliance with the Loan Documents.
Section 5.7 Inspection of the Security.
At any and all reasonable times upon seventy-two (72) hours prior written notice, subject
to the rights of tenants, the Beneficiary and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives shall have the right, without payment of charges or
fees, to inspect the Security.
Section 5.8 Nondiscrimination.
The Trustor herein covenants by and for itself, its heirs, executors, administrators, and
assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of race, color, creed,
religion, age, disability, sex, sexual orientation, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor shall the
Trustor itself or any person claiming under or through it establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Security. The
foregoing covenants shall run with the land.
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default.
The following shall constitute Events of Default under this Deed of Trust: (1) failure to
make any payment to be paid by Trustor under the Loan Documents subject to applicable notice
and cure periods set forth in the Loan Documents; (2) failure to observe or perform any of
Trustor's other covenants, agreements or obligations under the Loan Documents, including,
December 15.2000 7
without limitation, the provisions concerning discrimination, subject to applicable notice and
cure periods, if any, included in the Loan Documents; or (3) failure to make any payment or
perform any of Trustor's other covenants, agreements, or obligations under any other debt
instruments or regulatory agreement secured by the Property, which default shall not be cured
within the times and in the manner provided therein.
Section 6.2 Acceleration of Maturity.
If an Event of Default shall have occurred and be continuing, then at the option of the
Beneficiary, the amount of any payment related to the Event of Default and the unpaid Principal
of the Note shall immediately become due and payable, upon written notice by the Beneficiary to
the Trustor (or automatically where so specified in the Loan Documents), and no omission on the
part of the Beneficiary to exercise such option when entitled to do so shall be construed as a
waiver of such right.
Section 6.3 The Beneficiary's Right to Enter and Take Possession.
If an Event of Default shall have occurred and be continuing, the Beneficiary may:
(a) 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), in its own
name or in the name of Trustee, and do any acts which it deems necessary or desirable to
preserve the value or marketability of the Property, 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 Event of Default or Notice of Default (as defined below)
hereunder or invalidate any act done in response to such Event of Default or pursuant to such
Notice of Default and, notwithstanding the continuance in possession of the Security, Beneficiary
shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon
occurrence of any Event of Default, including the right to exercise the power of sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver, or specifically enforce any of the covenants hereof;
(c) Deliver to Trustee a written declaration of default and demand for sale,
and a written notice of default and election to cause Trustor's interest in the Security to be sold
("Notice of Default and Election to Sell"), which notice Trustee or Beneficiary shall cause to be
duly filed for record in the Official Records of San Diego County; or
(d) Exercise all other rights and remedies provided herein, 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.
December 15,2000
~~
8
4 635
Section 6.4 Foreclosure By Power of Sale.
Should the Beneficiary elect to foreclose by exercise of the power of sale herein
contained following an Event of Default, the Beneficiary shall give notice to the Trustee (the
"Notice of Sale") and shall deposit with Trustee this Deed of Trust which is secured hereby (and
the deposit of which shall be deemed to constitute evidence that the unpaid principal amount of
the Note is immediately due and payable), and such receipts and evidence of any expenditures
made that are additionally secured hereby as Trustee may require.
(a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be
recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then
required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse
of such time as may then be required by law and after recordation of such Notice of Default and
Election to Sell and after Notice of Sale having been given as required by law, sell the Security,
at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate
lots or parcels or items as Trustee shall deem expedient and in such order as it may determine
unless specified otherwise by the Trustor according to California Civil Code Section 2924g(b), at
public auction to the highest bidder, for cash in lawful money of the United States payable at the
time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient
deed or deeds conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed or any matters of facts shall be conclusive proof of the
truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary,
may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such
purchaser or purchasers.
(b) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds
of sale to payment of: (i) the unpaid Principal amount of the Note; (ii) all other amounts owed to
Beneficiary under the Loan Documents; (iii) ail other sums then secured hereby; and (iv) the
remainder, if any, to Trustor.
(c) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new Notice of Sale.
Section 6.5 Receiver.
If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of
right and without further notice to Trustor or anyone claiming under the Security, and without
regard to the then value of the Security or the interest of Trustor therein, shall have the right to
apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part
thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice
of any application therefor. Any such receiver or receivers shall have all the usual powers and
duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of
December 15,2000 9
4 636
entry as provided herein, and shall continue as such and exercise all such powers until the date of
confirmation of sale of the Security, unless such receivership is sooner terminated.
Section 6.6 Remedies Cumulative.
No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of
Trust is intended to be exclusive of any other right, power or remedy, but each and every such
right, power and remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or in equity.
Section 6.7 No Waiver.
(a) No delay or omission of the Beneficiary to exercise any right, power or
remedy accruing upon any Event of Default shall exhaust or impair any such right, power or
remedy, or shall be construed to be a waiver of any such Event of Default or acquiescence
therein, and every right, power and remedy given by this Deed of Trust to the Beneficiary may
be exercised from time to time and as often as may be deemed expeditious by the Beneficiary.
No consent or waiver, expressed or implied, by the Beneficiary to any breach by the Trustor in
the performance of the obligations hereunder shall be deemed or construed to be a consent to or
waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to
complain of any act or failure to act or to declare an Event of Default, irrespective of how long
such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or
impair any rights, power or remedies consequent on any Event of Default by the Trustor.
(b) If the Beneficiary (i) grants forbearance or an extension of time for the
payment of any sums secured hereby, (ii) takes other or additional security or the payment of any
sums secured hereby, (iii) waives or does not exercise any right granted in the Loan Documents,
(iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes
any of the terms, covenants, conditions or agreements in the Loan Documents, (v) consents to the
granting of any easement or other right affecting the Security, or (iv) makes or consents to any
agreement subordinating the lien hereof, any such act or omission shall not release, discharge,
modify, change or affect the obligations under this Deed of Trust, or any other obligation of the
Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer,
endorser, surety or guarantor (unless expressly released); nor shall any such act or omission
preclude the Beneficiary from exercising any right, power or privilege herein granted or intended
to be granted in any Event of Default then made or of any subsequent Event of Default, nor,
except as otherwise expressly provided in an instrument or instruments executed by the
Beneficiary shall the lien of this Deed of Trust be altered thereby.
Section 6.8 Suits to Protect the Security,
The Beneficiary shall have power to (a) institute and maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Security and the rights of the
Beneficiary as may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its
interest (as described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule or order that may be
December 15.2000 10
4 637
unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment,
rule or order would impair the Security thereunder or be prejudicial to the interest of the
Beneficiary.
Section 6.9 Trustee May File Proofs of Claim.
In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting the Trustor, its creditors or its property,
the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of the Beneficiary
allowed in such proceedings and for any additional amount which may become due and payable
by the Trustor hereunder after such date.
Section 6.10 Waiver.
The Trustor waives presentment, demand for payment, notice of dishonor, notice of
protest and nonpayment, protest, notice of interest on interest and late charges, and diligence in
taking any action to collect any sums owing under the Note or in proceedings against the
Security, in connection with the delivery, acceptance, performance, default, endorsement or
guaranty of this Deed of Trust.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Amendments.
This instrument cannot be waived, changed, discharged or terminated orally, but only by
an instrument in writing signed by Beneficiary and Trustor.
Section 7.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all sums secured hereby have been paid
or forgiven, and upon surrender of this Deed of Trust to Trustee for cancellation and retention,
and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to
Trustor, or to the person or persons legally entitled thereto.
Section 7.3 Notices.
If at any time after the execution of this Deed of Trust it shall become necessary or
convenient for one of the parties hereto to serve any notice, demand or communication upon the
other party, such notice, demand or communication shall be in writing and shall be served
personally or by depositing the same in the registered United States mail, return receipt
requested, postage prepaid and (1) if intended for Beneficiary shall be addressed to:
December 15,2000
4 638
City of Carlsbad
2965 Roosevelt Drive, Suite B
Carlsbad, CA 92008
Attention: Housing and Redevelopment Director
and (2) if intended for Trustor shall be addressed to:
Ken Sauder
Wakeland Housing & Development Corp.
707 Broadway, Suite 1230
Box 34
San Diego, CA 92101
and to: Edison Capital Housing Investments
18101 VonKarman Ave., Suite 1700
Irvine, CA 926 12- 1046
Attn: Asset Manager-Pacific Vista Las Flores
Any notice, demand or communication shall be deemed given, received, made or
communicated on the date personal delivery is effected or, if mailed in the manner herein
specified, on the delivery date or date delivery is refused by the addressee, as shown on the return
receipt. Either party may change its address at any time by giving written notice of such change
to Beneficiary or Trustor as the case may be, in the manner provided herein, at least ten (10) days
prior to the date such change is desired to be effective.
Section 7.4 Captions.
The captions or headings at the beginning of each Section hereof are for the convenience
of the parties and are not a part of this Deed of Trust.
Section 7.5 Invalidity of Certain Provisions.
Every provision of this Deed of Trust is intended to be severable. In the event any term
or provision hereof is declared. to be illegal or invalid for any reason whatsoever by a court or
other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of
the terms and provisions hereof, which terms and provisions shall remain binding and
enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the
debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or
partially secured portion of the debt, and all payments made on the debt, whether voluntary or
under foreclosure or other enforcement action or procedure, shall be considered to have been first
paid or applied to the full payment of that portion of the debt which is not secured or partially
secured by the lien of this Deed of Trust.
December 15,2000 12
4639
Section 7.6 Governing Law.
This Deed of Trust shall be governed by and construed in accordance with the laws of the
State of California.
Section 7.7 Gender and Number.
In this Deed of Trust the singular shall include the plural and the masculine shall include
the feminine and neuter and vice versa, if the context so requires.
Section 7.8 Deed of Trust, Mortgage.
Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and
any reference to a deed of trust shall also refer to a mortgage.
Section 7.9 Actions.
Trustor agrees to appear in and defend any action or proceeding purporting to affect the
Security.
Section 7.10 Substitution of Trustee.
Beneficiary may !?om time to time substitute a successor or successors to any Trustee
named herein or acting hereunder to execute this Trust. Upon such appointment, and without
conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties
conferred upon any Trustee herein named or acting hereunder. Each such appointment and
substitution shall be made by written instrument executed by Beneficiary, containing reference to
this Deed of Trust and its place of record, which, when duly recorded in the proper office of the
county or counties in which the Property is situated, shall be conclusive proof of proper
appointment of the successor trustee.
Section 7.1 1 Statute of Limitations.
The pleading of any statute of limitations as a defense to any and all obligations secured
by this Deed of Trust is hereby waived to the full extent permissible by law.
Section 7.12 Acceptance by Trustee.
Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is
made public record as provided by law. Except as otherwise provided by law the Trustee is not
obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of
proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee.
December 15.2000 13
4 640
Section 7. 13 Restrictions under the Internal Revenue Code.
The parties hereto acknowledge that Section 42(h)(6)(E)(ii) of the Internal Revenue code
of 1986, as amended, does not permit the eviction or termination of tenancy (other than for good
cause) of an existing tenant of any low-income unit or any increase in the gross rent with respect
to such unit not otherwise permitted under Section 42 for a period of three (3) years after the date
the building is acquired by foreclosure or instrument in lieu of foreclosure. Beneficiary agrees
that, in the event Beneficiary acquires the Property through foreclosure or an instrument in lieu
of foreclosure, Beneficiary will refrain for a 3-year period thereafter from terminating tenancies
(other than for good cause) or increasing rents in a manner not permitted by Section 42.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year
first above written.
TRUSTOR
Pacific Vista Las Flores, a California limited
partnership
By: Wakeland Housing and Development
Corporation, a California Nonprofit Corporation
Kenneth L. Sauder, Executive Director
By: San Diego Interfaith Housing Foundation, a
California Nonprofit Corporation
By:
December 15.2000 14
4 641
STATE OF CALIFORNIA )
fore me, the undersigned, a Notary Public, personally appeared
, personally known to me (orproved to me on the basis of
satisfactory evidence) to be the name(&&& subscribed to the within
instrument, and acknowledged executed the same @er/their
authorized capacity(ies), and that b on the instrument the person($, or
the entity upon behalf of which the person(s) acted, executed the instrument.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
personally appeared
Ffpersonally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person& whose name@) is/-
subscribed to the within instrument and
acknowledaed to me that he/she/Wv executed - -,
" ,. . the same in his/hy/tbeir authorized capacity(&), and that by hislkerltheir
entity upon behalf of which the person@)
ed. executed the instrument.
OPT~NAL
Though the information below is not required by law, it may prove valuable lo persons relying on the document
and could prevent fraudulent removal and reanachment of this form lo another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
0 Corporate Officer -Title@):
0 Partner - 0 Limited 0 General
Attorney in Fact
0 Guardian or Conservator
Signer Is Representing:
0 1997 Nallonal NolawAssociat8on. 9350 De Soto Aue, PO Box 2402. Chalsworth, CA 91313~2402 Prod No. 5907 Reorder. Call Toli~Free 1-800-876-8,
4 643
EXHIBIT A
(Legal Description of Property)
The land is situated in the State of California, County of San Diego, and is described as follows:
A- 1
LOT 134 OF CITY OF CARLSBAD TRACT 97-14, UNIT
NO. 1, IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 13840, FILE IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 1,1999
Recorded at the ~eguest 07
RECORDING REQUESTED BY AND rnIC1rY Ern
WHEN RECORDED MAIL TO:
City of Carlsbad FEES: 26.00
4693 911N DIEGU uxHp( RECCRDER'S OFFICE GREWRY J. SHIM, CWV REUkXR
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
20?,~;.7(6~1- us2
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY
INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT (the "Agreement") is made this 2Tday of February,
2001, by PACIFIC VISTA LAS FLORES, L.P., a California limited partnership, owner of the land
hereinafter described and hereinafter referred to as "Owner", and VISTA LAS FLORES COW., a
Delaware corporation, present owner and holder of the deed of trust hereinafter described and hereinafter
referred to as "Beneficiary".
WITNESSETH
THAT WHEREAS, Owner did execute a deed of trust dated as of February 13,2001, to Chicago
Title Company, as trustee, for the benefit of Beneficiary which deed of trust was recorded in the Official
Records of San Diego County, California, on February 20, 2001, as Document Number 2001-0096011
(the "Vista Trust Deed"). The Vista Trust Deed encumbers the real property described in Exhibit "A"
attached hereto and by this reference incorporated herein and secures the obligations of Owner under that
certain promissory note dated as of February 13, 2001 in the original principal amount of $2,500,000.00
Agreement dated as of February 13,2001, between Owner and Beneficiary.
executed by Owner in favor of Beneficiary pursuant to the terms of that certain Construction Loan
WHEREAS, Owner has executed, or is about to execute, a deed of trust and note in the sum of
$363,948 in favor of the City of Carlsbad, a municipal corporation, hereinafter referred to as "Lender",
payable with interest and upon the terms and conditions described therein, which deed of trust is to be
recorded concurrently herewith. The deed of trust to be executed in favor of Lender is hereinafter
referred to as the "City Trust Deed"; and
WHEREAS, it is a condition precedent to obtaining said loan that the City Trust Deed shall
unconditionally be and remain at all times a lien or charge upon the land hereinbefore described, prior and
superior to the lien or change of the Vista Trust Deed; and
WHEREAS, Lender is willing to make said loan provided the City Trust Deed securing the same
is a lien or charge upon the above described property prior and superior to the lien or charge of the Vista
Trust Deed and provided that Beneficiary will specifically and unconditionally subordinate the lien or
charge of the Vista Trust Deed to the lien or charge of the City Trust Deed in favor of Lender; and
-1
4694
WHEREAS, it is to the mutual benefit of the parties hereto that Lender make such loan to Owner;
lien or charge upon said land which is unconditionally prior and superior to the lien or charge of the Vista
and Beneficiary is willing that the City Trust Deed securing the same shall, when recorded, constitute a
Trust Deed.
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 the City Trust Deed 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 Vista Trust
Deed.
(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 between the parties hereto
with regard to the subordination of the lien or charge of the Vista Trust Deed to the lien
or charge of the City Trust Deed in favor of Lender above referred to and shall supersede
and cancel any prior agreements as to such, or any, subordination including, but not
limited to, those provisions, if any, contained in the Vista Trust Deed, which provide for
the subordination of the lien or charge thereof to a deed or deeds of trust or to a mortgage
or mortgages to be thereafter executed.
Beneficiary declares, agrees and acknowledges that
(a) Beneficiary hereby consents to and approves (i) all provisions of the City Trust Deed 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; and
(c) Beneficiary intentionally and unconditionally waives, relinquishes and subordinates the
lien or charge of the Vista Trust Deed in favor of the lien or charge upon said land of the
City Trust Deed in favor of Lender above referred to and understands that in reliance
upon, and in consideration of, this waiver, relinquishment and subordination specific
monetary and other obligations are being and will be entered into which would not be
loans and advances are being and will he made and, as part and parcel thereof, specific
made or entered into but for said reliance upon this waiver, relinquishment and
subordination.
-2-
4695
This Agreement may be executed in several counterparts, and all such counterparts shall
constitute the same agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH
ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY TO OBTAIN A LOAN A
PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF
THE LAND
"Beneficiary"
VISTA LAS FLORES COW.,
a Delaware corporation
Title: VICE PRESIDENT
Title: PRESIDENT
"Owner"
PACIFIC VISTA LAS FLORES, L.P.,
a California limited partnership
By: WAKELAND HOUSING AND
DEVELOPMENT CORPORATION,
a California non-profit corporation,
its General Partner
By:
Kenneth L. Sauder, Executive Director
By: SAN DIEGO INTERFAITH
HOUSING FOUNDATION,
a California non-profit corporation,
its General Partner
Matthew B. Jumper, President
-3-
4696
This Agreement may be executed in several counterparts, and all such counterparts shall
constitute the same agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH
ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY TO OBTAIN A LOAN A
PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF
THE LAND.
"Beneficiary"
VISTA LAS FLORES COW.,
a Delaware corporation
Name:
Title:
By:
Name:
"Owner"
PACIFIC VISTA LAS FLORES, L.P.,
a California limited partnership
By: WAKELAND HOUSING AND
DEVELOPMENT CORPORATION,
a California non-profit corporation,
its General Partner
By: j!! a- J4
Kenneth L. Sauder, Executive Director
By: SAN DIEGO INTERFAITH
HOUSING FOUNDATION,
a California non-profit corporation,
its General Partner
-3.
4697
STATE OF CALIFORNIA
COUNTYOF 56,1 Dit40 )ss
On Fibah* a. LWl ,beforeme, c/;Stl- 6f.t I personally appeared
acknowledged to me that Melthey executed the same in kisfhcrltheir authorized capacity(ies), and that
-) to be the person(s) whose name(s)dare subscribed to the within instrument and
by hi4Aterltheir signature(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature CL-F &-
STATE OF CALIFORNIA
COUNTY OF ) SS.
On I before me,
personally known to me (or proved to me on the basis of
personally appeared
satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the within instrument and
by hisiherltheir signature(s) acted, executed the instrument.
acknowledged to me that helshelthey executed the same in hisiherltheir authorized capacity(ies), and that
WITNESS my hand and official seal.
Signature
-4-
4698
On Eb. ab, a001 ,beforeme, e i bd" GsroWo personally appeared
s-e) to be the pmson(jJ whose name@ @are subscribed to the within instrument and
acknowledged to me that @shbmey executed the same in@iheritheir authorized capacity(beS), and that
by hidhedtheir signature@) acted, executed the instrument.
.aN& L. wur personally known to m'e (w,, -f
WITNESS my hand and official seal
STATE OF CALl 0 IA
COUNTY OF !d?b~k ) SS.
9 , before me, personally appeared
personally known to me (or broved to me on the basis of
acknowledged to me that he/&e/tMy executed the same in hisiheritwir authorized capacity(&), and that
by hisl~ritlpn signature(i)'acted, executed the instrument.
-
whose name@) islpre subscribed to the within instrument and
ITNESS my hand and official seal.
-4-
Exhibit "A"
Description of the Subiect Real Proper&
The real property that is subject to this Subordination Agreement is that certain real property
situated in San Diego County, California that is described as follows:
Lot 134 of City of Carlsbad Tract 97-14, Unit No. 1, in the City of Carlsbad, County of San
Diego, State of California, according to Map thereof No. 13840, filed in the Office of the County
Recorder of San Diego County, September 1,1999.
Hecorded at the request of
Chicago Title
RECORDING REQUESTED BY AND rnICIR mlRDs
WHEN RECORDED MAIL TO: SAN DIEM "P( ECORDER'S OFFICE
City of Carlsbad FEES: 26.00 4 700 GIIEwR( J. SnITHs wully REWRDER
City Clerk's Office .; Attn: City Clerk
Carlsbad, CA 92008
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
,
, *.. 1200 Carlsbad Village Drive
,I I"
233371631- UCJZ
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY
INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT (the "Agreement") is made this @day of February,
2001, by PACIFIC VISTA LAS FLORES, L.P., a California limited partnership, owner of the land
hereinafter described and hereinafter referred to as "Owner", and STANDARD PACIFIC COW., a
Delaware corporation, present owner and holder of the deed of trust hereinafter described and hereinafter
referred to as "Beneficiary".
WITNESSETH
THAT WHEREAS, Owner did execute a deed of trust dated as of February 24, 2000, to Chicago
Title Company, as &+tee, for the benefit of Beneficiary which deed oftrust was recorded in the Official
Records of San Diego County, California, on March 8,2000, as Document Number 2000-01 18350, which
was amended by that certain Amendment to Performance Deed of Trust and Assignment of Rents, dated
February 13, 2001, and recorded February 20, 2001, as Document Number 2001-0096012 (collectively,
the "Performance Trust Deed"). The Performance Trust Deed encumbers the real property described in
Exhibit "A" attached hereto and by this reference incorporated herein and secured the performance of
certain of the obligations of Owner under that unrecorded Purchase Contract and Escrow Instructions
dated July 14, 1999, as amended by, among other things, that certain Third Amendment to Purchase
Contract and Escrow Instructions dated as of October 30, 2000, and that certain Fourth Amendment to
Purchase Contract and Escrow Instructions dated as of February 13, 2001, between Owner and
Beneficiary.
WHEREAS, Owner has executed, or is about to execute, a deed of trust and note in the sum of
$363,948 in favor of the City of Carlsbad, a municipal corporation, hereinafter referred to as "Lender",
recorded concurrently herewith. The deed of trust to be executed in favor of Lender is hereinafter
payable with interest and upon the terms and conditions described therein, which deed of trust is to be
referred to as the "City Trust Deed"; and
WHEREAS, it is a condition precedent to obtaining said loan that the City Trust Deed shall
unconditionally be and remain at all times a lien or charge upon the land hereinbefore described, prior and
superior to the lien or change of the Performance Trust Deed and
4 701
WHEREAS, Lender is willing to make said loan provided the City Trust Deed securing the same
Performance Trust Deed and provided that Beneficiary will specifically and unconditionally subordinate
is a lien or charge upon the above described property prior and superior to the lien or charge of the
the lien or charge of the Performance Trust Deed to the lien OT charge of the City Trust Deed in favor of
Lender; and
WHEREAS, it is to the mutual benefit of the parties hereto that Lender make such loan to Owner;
and Beneficiary is willing that the City Trust Deed securing the same shall, when recorded, constitute a
Performance Trust Deed.
lien or charge upon said land which is unconditionally prior and superior to the lien or charge of the
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:
That the City Trust Deed 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 Performance
Trust Deed.
That Lender would not make its loan above described without this subordination
agreement.
That this agreement shall be the whole and only agreement between the parties hereto
the lien or charge of the City Trust Deed in favor of Lender above referred to and shall
with regard to the subordination of the lien or charge of the Performance Trust Deed to
but not limited to, those provisions, if any, contained in the Performance Trust Deed,
supersede and cancel any prior agreements as to such, or any, subordination including,
trust or to a mortgage or mortgages to be thereafter executed.
which provide for the subordination of the lien or charge thereof to a deed or deeds of
Beneficiary declares, agrees and acknowledges that
(a) Beneficiary hereby consents to and approves (i) all provisions of the City Trust Deed in
favor of Lender above referred to and (ii) all agreements, including but not limited to any
proceeds of Lender's loan;
loan or escrow agreements, between Owner and Lender for the disbursement of the
(b) Lender in making disbursements pursuant to any such agreement is under no obligation
by the person or persons to whom Lender disburses such proceeds and any application or
or duty to, nor has Lender represented that it will, see to the application of such proceeds
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; and
(c) Beneficiary intentionally and unconditionally waives, relinquishes and subordinates the
lien or charge of the Performance Trust Deed in favor of the lien or charge upon said land
of the City Trust Deed in favor of Lender above refered 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,
-2-
4 702
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.
This Agreement may be executed in several counterparts, and all such counterparts shall
constitute the same agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH
ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY TO OBTAIN A LOAN A
PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF
THE LAND,
"Beneficiary"
STANDARD PACIFIC CORP., a Delaware corporation
By:
Name: Title: AUTHORIZED AGENT
"Owner"
PACIFIC VISTA LAS FLORES, L.P.,
a California limited partnership
By: WAKELAND HOUSING AND
DEVELOPMENT CORPORATION,
a California non-profit corporation,
its General Partner
By:
Kenneth L. Sauder, Executive Director
By: SAN DIEGO INTERFAITH
HOUSING FOUNDATION,
a California non-profit corporation,
its General Partner
Matthew B. Jumper, President ~~~
-3-
4 703
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.
This Agreement may be executed in several counterparts, and all such counterparts shall
constitute the same agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH
ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY TO OBTAIN A LOAN A
PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF
THE LAND.
"Beneficiary"
STANDARD PACIFIC CORP.,
a Delaware corporation
"Owner"
PACIFIC VISTA LAS FLOES, L.P.,
a California limited partnership
By: WAKELAND HOUSING AND
DEVELOPMENT CORPORATION,
a California non-profit corporation,
its General Partner
-J. Kenneth L. Sauder, Executive Director
By: SAN DIEGO INTERFAITH
HOUSING FOUNDATION,
a California non-profit corporation,
its General Partner
-3-
4704
STATE OF CALIFORNIA .
COUNTY OF 54, Dltq D ) ss.
&rcn whk On GbfWe /q ZL. Lou/ ,before me, friSf/A Bf 911 personally appeared
to be the person(s) whose name(s)-ie/are subscribed to the within instrument and
by hifiherltheir signature(s) acted, executed the instrument.
achowledged to me that Wthey executed the same in hisfkedtheir authorized capacity(ies), and that
7/ud~ Pl/nn/personally known to me
WITNESS my hand and official seal
Signature E" k-
STATE OF CALIFORNIA
COUNTY OF ) SS.
On I before me,
personally known to me (or proved to me on the basis of
personally appeared
satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in hishedtheir authorized capacity(ies), and that
by his/her/their signature(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
-4-
4 705
On 6Lb. zb. ab1 , before me, ti Ndb G.b@tdO personally appeared
4) to he the person@ whose nam#) &/are subscribed to the within instrument and
4-Amd4.L c. Sd& personally known to 'me (o"oft-thele MS of
acknowledged to me shekky executed the same in Ms/het=kkir authorized capacity$&), and that
by hishedtheir executed the instrument.
WITNESS my hand and official seal,
Signature I" Notary Public - Calif&
COUNTY OF d%iy )SS.
STATE OF CALIF0
A. +?&b\.L personally appeared
N l personally known to de.(br prdved to me on the hasis of satisfactory evidence) to be the\person@) whose name@) is/= subscribed to the within instrument and
acknowledged to me that he/ske/tkey executed the same in his/berlt&ir authorized capacityks), and that
by his/ller/tbeir signature(* acted, executed the instrument.
WESS my hand and official seal.
-5-
4 706
Exhibit “A“
Description of the Subject Real hoper&
.. ty that is subject to this Subordination Agreement is that (
situated in San Diego County, California that is described as follows:
The I real propel :ertain I -ea1 propel rty
Lot 134 of City of Carlsbad Tract 97-14, Unit No. 1, in the City of Carlsbad, County of San
Diego, State of California, according to Map thereof No. 13840, filed in the Office of the County
Recorder of San Diego County, September 1, 1999.
ESTOPPEL CERTIFICATE AND AGREEMENT
(CITY OF CARLSBAD -VISTA LAS FLORES)
This ESTOPPEL CERTIFICATE AND AGREEMENT (this “Agreement)
is entered into as of September -, 2001, by and between the CITY OF CARLSBAD,
a municipal corporation (“Lender“), and PACIFIC VISTA LAS FLORES, L.P., a
California limited partnership (the ”Partnership” or “Borrower”).
RECITALS
A. Wakeland Housing and Development Corporation, a California
nonprofit public benefit corporation, as managing general partner, and VLF Interfaith
Housing Corporation, a California nonprofit public benefit corporation, as co-general
partner and successor-in-interest to San Diego Interfaith Housing Foundation (“VLF,
and collectively with Wakeland, and each individually, as “General Partner”), and
Edison Capital Housing Investments, as Limited Partner (“Limited Partner” or “ECHI”),
have executed that certain Amended and Restated Limited Partnership Agreement of
Pacific Vista Las Flores, dated as of September -, 2001 (the “Partnership
Agreement”). All initially capitalized terms used but not defined herein shall have the
meanings set forth in the Partnership Agreement.
B. Pursuant to that certain City Loan Agreement dated as of February
28,2001, between Lender and the Partnership (the “Loan Agreement”), Lender, as
lender, has agreed to loan to the Partnership, as borrower, up to the principal sum of
Three Hundred Sixty-Three Thousand Nine Hundred Forty-Eight and no/100 Dollars
($363,948.00) as a construction and permanent loan (the “Loan”) for the 28-unit low-
income multi-family apartment project located in the City of Carlsbad, County of San
Diego, State of California (the “Project“).
C. The Loan is evidenced by, inter alia, (a) the City Loan Agreement,
(b) that certain City Note, dated February 28,2001, by the Partnership in favor of the
City, (c) that certain City Deed of Trust, dated February 28, 2001, by the Partnership to
the trustee named therein and the Lender as beneficiary, and (d) that certain City
Regulatory Agreement, dated February 28, 2001, by the Partnership in favor of the
Lender. Items (a) through (e) above, together with all other certificates, instruments and
agreements in connection with the City Loan, collectively shall be referred to herein as
the “Loan Documents.”
D. Upon satisfaction of certain conditions, including the delivery of this
Agreement, Limited Partner will make certain capital contributions to the Partnership as
provided in the Funding Agreement between the Limited Partner and the Partnership,
dated as of September _, 2001. In connection with such capital contributions, the
Partnership and Limited Partner have requested that Lender execute and deliver this
Agreement. Lender understands and, by entering this Agreement, acknowledges that
LA3:972332.6 1
Limited Partner and the Partnership are relying upon the information and agreements
contained in this Agreement.
Lender hereby certifies and agrees as follows:
1. Loan Documents. The Loan Documents are in full force and
effect and, except to the extent amended or modified by this Agreement, have not been
amended or modified.
2. No Defaults. Lender has not given any notice of default to the
Partnership that has not been cured, and to the best of Lender's knowledge, no events,
whether material or otherwise, have occurred and no circumstances exist which, with
the giving of notice or the passage of time, or both, would constitute a default by the
Partnership under the Loan Documents, or under any document, instrument,
assignment, agreement or amendment thereto currently existing which commits to,
evidences, secures, or modifies the Loan, or would allow the Lender to accelerate the
Loan or declare default thereunder.
3. Svndication. Lender has reviewed the Partnership Agreement,
Funding Agreement, Security Agreement and any and all other syndication documents
("Syndication Documents") allowing for the withdrawal of Initial Limited Partner and
admission of Limited Partner and requiring Lender's approval and Lender hereby
approves the Syndication Documents to the extent Lender's approval is required.
4. Transfer of Limited Partner's Interests. Any assignment or
transfer by Limited Partner of Limited Partner's partnership or ownership interest in the
Partnership pursuant to the Partnership Agreement will not constitute a default or
impermissible transfer under any of the Loan Documents, so long as Limited Partner
remains liable to make those certain capital contributions to the Partnership as provided in the Funding Agreement. Lender hereby approves:
(a) Initial Limited Partner's (as defined in the Loan Agreement) transfer
of all or any portion of its limited partnership interest to Limited Partner, the admission of
Limited Partner as an Limited Partner of the Partnership, the acquisition of a limited
partnership interest in Partnership by the Limited Partner, and the withdrawal of the
Initial Limited Partner from the Partnership.
(b) Limited Partner's transfer of all or any portion of its limited
partnership interest to an Affiliate (as defined in the Partnership Agreement), the
admission of such Affiliate as a limited partner of the Partnership, the acquisition of a
limited partnership interest in Borrower by such Affiliate, and the withdrawal of the
Limited Partner from the Partnership.
5. Removal of General Partner. Notwithstanding anything to the
contrary in the Loan Agreement, if Limited Partner removes either General Partner of
the Partnership in accordance with the terms of the Partnership Agreement, such
removal, in and of itself, will not constitute a default under any of the Loan Documents,
provided that within thirty (30) days after the removal of either General Partner, Limited
LA3912332.6 2
Partner shall have selected a substitute General Partner approved by Lender, which
approval shall not be unreasonably withheld or delayed. Any transfer by either General
Partner of its Partnership or ownership interest in the Partnership in violation of the
provisions of the Partnership Agreement will not constitute a default or impermissible
transfer under any of the Loan Documents, provided that Limited Partner promptly
commences and diligently proceeds to remove and replace either General Partner with
a substitute General Partner approved by Lender, which approval shall not be
unreasonably withheld or delayed.
6. Transfer of General Partner’s Interest. The parties hereto
acknowledge that, on or prior to the date hereof, San Diego Interfaith Housing
Foundation, a California nonprofit public benefit corporation, has transferred all of its
Partnership Interest in the Partnership to VLF, and VLF has been admitted a the co-
general partner of the Partnership. Lender hereby acknowledges and consents to such
Partnership Interest transfer and approves VLF as co-general partner of the
Partnership.
7. Transfer of ProDerhr Pursuant to an Option. The Partnership
has granted Wakeland Housing and Development Corporation an option to purchase
the Project and a right of first refusal to acquire the Project in connection with Limited
Partner‘s investment in the Partnership and admission as the Partnership’s Limited
Partner. The option and right of first refusal, and any exercise thereof, do not and will
not constitute a default or impermissible transfer under any of the Loan Documents.
8. Condemnation and Casualty.
(a) Condemnation and Casualtv Proceeds. Notwithstanding
anything contained in the Loan Documents, unless Lender, the Partnership and Limited
Partner agree in writing, any proceeds the Partnership receives from insurance policies
issued to the Partnership and/or covering the Project, and any proceeds received from
any governmental agency due to a partial or complete condemnation of the Project,
shall be applied (i) first, to restore, repair or rebuild the Project so long as (a) there is no
uncured monetary default, (b) there is no uncured nonmonetary default which is not
caused by the casualty or condemnation event giving rise to such proceeds, (c) there
are sufficient insurance proceeds and/or equity contributions to the Partnership to allow
the Partnership to complete the repair, restoration or rebuilding, and (d) the Project shall
be economically viable following such restoration, repair or rebuilding; and (ii) second, if
conditions (a)-(d) in clause (i) above have not been satisfied, in accordance with the
provisions of the Construction Loan Agreement.
(b) UninsuredCasualtv. Upon the occurrence of any uninsured
casualty to the Project, Lender shall not declare a default under the Loan Agreement so
long as (i) the Partnership, General Partner or Limited Partner deposits with Lender
funds sufficient in amount to repair or restore such loss within thirty (30) business days
after demand by Lender, (ii) no monetary default arises (beyond any applicable notice
and cure periods), and (iii) the Partnership promptly commences and diligently proceeds
with the restoration, repair and rebuilding of the Project.
LA3912332.6 3
9. Limited Partner's Eauitv Contribution. Lender acknowledges
that (i) Limited Partner's equity contribution to the Partnership is currently estimated to
be approximately One Million Four Hundred Fifty Thousand Dollars ($1,450,000),
subject to further adjustment pursuant to the terms of the Funding Agreement, (ii)
Limited Partner's equity contribution to the Partnership is scheduled to be funded
pursuant to the terms of the Funding Agreement, and (iii) so long as Limited Partner
complies with the terms of the Funding Agreement, the amount and timing of Limited
Partner equity contributions shall not constitute a default under any of the Loan
Documents.
10. Tax Credit Allocation. Lender acknowledges that the annual
allocation of low income tax credits awarded to the Partnership by the California Tax
Credit Allocation Committee could be less than $175,163, depending upon certain
factors such as the qualified basis of the Project and the credit percentage at the time
the Project is placed in service.
11. Distributions. Notwithstanding any provision to the contrary under
any of the Loan Documents, Lender agrees that the Partnership shall make such
distributions and payments in the amount, order and priority set forth in the Partnership
Agreement, including, without limitation, payment of the fees and reserves set forth on
Schedule A hereto, and that Lender has approved such distributions and payments.
12. Gross Revenue. Lender hereby agrees that the term Gross
Revenue, as used in the Loan Documents, shall include condemnation awards received
from any governmental entity for a taking of part or all of the Project for a temporary
period, but only to the extent such condemnation proceeds are not utilized to repair or
rebuild the Project.
13. Approval of Propertv Documents. Lender hereby approves all
documents and certifications the Partnership may be required to produce relating to the
Project and the Loan, including, without limitation, the Plans and Specifications, the
Construction Budget, the Property Management Agreement (including the identity of the
Property Manager), form of lease for the Project, the insurance coverage for the Project,
tenant selection plan, tenant management plan, payment and performance bonds and
Construction Contract.
14. Approval of Additional Financing. In accordance with Section
2.9 of the Loan Agreement, Lender hereby acknowledges and approves the following
encumbrances on the Project:
(a) Deed of Trust on the Project securing a loan to the Partnership from
Downey Savings and Loan Association, F.A. in the original principal
amount of $135,000; and
(b) Deed of Trust on the Project securing a bridge loan to the Partnership
from the California Housing Finance Agency in the original principal
amount of approximately $1,075,000;
LA3:972332.6 4
15. Use of Proceeds. Lender hereby acknowledges and agrees that,
notwithstanding any provision to the contrary in any of the Loan Documents, including,
without limitation, Section 2.14 of the Loan Agreement, any Net Proceeds of Permanent
Financing (as defined in the Loan Agreement) shall be used or distributed by the
Partnership in accordance with the terms of that certain letter agreement dated as of
September _, 2001 from Wakeland Housing and Development Corporation to Lender
and Vista Las Flores Corp.
16. Miscellaneous.
(a) The terms of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and assigns. Lender
agrees to deliver a copy of this Agreement to any transferee of their interests in the
Loan Documents.
(b) If any provision of this Agreement is determined to be
unenforceable for any reason, it shall be adjusted rather than voided, to the greatest
extent possible, to achieve the intent of the parties. All of the other provisions shall be
deemed valid and enforceable to the greatest extent possible.
(c) This Agreement may be executed in counterparts, and each shall
constitute an original and all taken together shall constitute one Agreement.
[SIGNATURES ON NEXT PAGE]
LA3:972332.6 5
IN WITNESS WHEREOF, Lender and Partnership have executed this
Agreement as of the date set forth above.
LENDER CITY OF CARLSBAD,
Approved to form: \
By:
PARTNERSHIP: PACIFIC VISTA LAS FLORES, L.P.,
a California limited partnership
By: WAKELAND HOUSING AND DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation, its managing general partner
By:
Name: Kenneth L. Sauder
Title: Executive Director
By: VLF INTERFAITH HOUSING CORPORATION, a
California nonprofit public benefit corporation, its co-
general partner
By:
Name:
Title:
LA3:912332.6 s-1
SCHEDULE A
Approved Fees:
1. Current and accrued Limited Partner Asset Management Fee in the
annual amount of $2,500, increasing at 3% per year.
2. Current and accnred Partnership Management Fee in the annual amount
of $12,500, increasing at 3% per year.
3. The Developer Fee and the Deferred Developer Fee, if any, in a total
amount not to exceed $300,000.
4. Property Management Fee in an amount equal to $30 per unit per month,
increasing at 3% per year.
Approved Reserves:
1. Replacement Reserves funded in an amount equal to $8,400 annually,
subject to periodic increases (a) as required by the California Housing
Finance Agency (or any other permanent lender to the Project senior in
priority to the Lender), and (b) as reasonably determined to be necessary
to maintain the Project in safe, decent and habitable condition, based on a
physical needs assessment of the Project, which shall be conducted by
the Partnership at least once every five years.
2. Any reserves required to be maintained by the California Housing Finance
Agency (or any other permanent lender to the Project senior in priority to
the Lender), including, without limitation, those reserves set forth in the
Final Commitment Letter from the California Housing Finance Agency to
the Partnership dated as of March 23, 2001.
LA3:972332.6 A-1
August 2 1,200 1
VIA FACSIMILE
City of Carlsbad Vista Las Flores Corp.
Housing and Redevelopment Department c/o Standard Pacific Homes
2965 Roosevelt Drive, Ste. B 5750 Fleet Street, Suite 200
Carlsbad, CA 92008 Carlsbad, CA 92008
Attn: Housing and Redevelopment Director Attn: Mr. Brian Utsler
Re: Pacific Vista Las Flores
Dear Ladies and Gentlemen:
As you know, Pacific Vista Las Flores, L.P., a California limited partnership (the "Partnership"), has
obtained, or intends to obtain, the following financing for the construction and development of an
affordable housing apartment project (the "Project"):
1. A loan from the City of Carlsbad (the "City") in the amount of $363,948 (the "City
2. A construction loan from Vista Las Flores Corp., a Delaware corporation ("Vista
Loan");
Corp."), in the amount of up to $2,500,000 (the "Vista Corp. Loan");
(the "BofA Loan");
4. A loan from Downey Savings and Loan Association, F.A. in the amount of $1 35,000
(the "AHP Loan");
5. A bond loan from the California Housing Finance Agency ("CHFA") in the
approximate amount of $1,3 15,000 (the "CHFA Loan");
6. A bridge loan from CHFA in the approximate amount of $1,075,000 (the "CHFA
Bridge Loan");and
7. Equity investments from Edison Capital Housing Investments, a California
corporation ("Edison"), as limited partner of the Partnership, in the approximate
amount of $1,364,304 (the "Equity Investment"), which will be disbursed in three
installments.
3. A construction loan from Bank of America, N.A. in the amount up to $1,318,000
The City Loan, Vista Corp. Loan, Boa Loan, AHP Loan, CHFA Loan, and CHFA Bridge Loan are
collectively referred to herein as the "Project Loans".
The documents for the City Loan andvista Corp Loan contain conflicting terms with respect
to the disposition of the proceeds and repayment of the Project Loans. This letter agreement shall
1658565.1
set forth the agreement between the City, Vista Corp. and the Partnership regarding such issues. This
letter agreement shall amend and modify the terms set forth in the loan documents for the City Loan
and Vista Corp. Loan and, in the event of a conflict among the terms of this letter agreement, the
City Loan documents and the Vista Corp. Loan documents, this letter shall govern.
The total amount of the equity installments is currently estimated at $1,364,304, with a first
installment ofapproximately$68,214, an estimated second installment of$l56,079 and an estimated
third installment of $1,140,038. The installments and total amount are subject to adjustment in
accordance with Section 2.4 of the Funding Agreement dated as of ,2001 (the
"Funding Agreement") between PVLF and Edison Capital Housing Investments, a California
corporation. The equity installments shall be disbursed in accordance with the Funding Agreement.
The entire amount of the first installment of the Equity Investment shall be used to pay all costs
associated with construction and development of the Project (other than the Developer Fee [as
defined below] and debt service on any of the Project Loans as approved by Vista Corp.) ("Project
Costs"). The parties acknowledge and agree that the term "Project Costs" is being used for
convenience, and is not intended to modify the type or nature of costs that are being financed by
Vista corp. andor the City under the respective loan documents for the Vista corp. Loan and the City
Loan.
The proceeds of the BofA Loan, City Loan and AHP Loan shall be used for the payment of
Project Costs plus !4 of the $300,000 developer fee due to Wakeland Housing and Development
Corporation, a California non-profit public benefit corporation ("Wakeland") and San Diego
Interfaith Housing Foundation, a California non-profit public benefit corporation ("Interfaith"),
pursuant to that certain Development Services Agreement dated January 17, 2001 among the
Partnership, Wakeland and Interfaith (as it may be amended) (the "Developer Fee"). The proceeds
of the Vista Corp. Loan shall be used solely for the payment of Project Costs. Notwithstanding
anything herein to the contrary in this letter agreement, the Developer Fee shall not exceed $300,000
so long as any amounts are outstanding under the Vista Corp. Loan Documents. The Partnership
hereby represents, acknowledges and agrees that $100,000 of the Developer Fee has already been
paid.
The proceeds of the CHFA Loan and the second installment of the Equity Investment will
be applied in the order as follows: (i) to repay the BofA Loan in full; (ii) to pay all costs associated
with the closing of the CHFA Loan and CHFA Bridge Loan, including, without limitation, all title
and escrow costs, CHFA costs and attorneys' fees; (iii) to pay unpaid Project Costs, if any; (iv) to
pay the remaining unpaid amount of the Developer Fee; and (v) one-half of the remaining proceeds,
if any, shall be applied to partially prepay the City Loan, and one-half of the remaining proceeds
shall be applied to partially prepay the Vista Corp. Loan.
The proceeds of the CHFA Bridge Loan shall be applied as follows: (i) to pay unpaid Project
Costs, to the extent not previously paid; (ii) to pay any unpaid Developer Fee not previously paid;
and (iii) the remaining proceeds, if any, shall be applied to partially prepay the Vista Corp. Loan.
1658565.1
The third installment of the Equity Investment shall be applied in the order as follows: (i) to
repay the CHFA Bridge Loan in full, with interest; and (ii) one-half of the remaining proceeds, if
any, shall be applied to partially prepay the City Loan, and one-half of the remaining proceeds shall
be applied to partially prepay the Vista Corp. Loan.
The Partnership shall only be entitled to draw funds from the Vista Corp. Loan to the extent
required or permitted to pay Project Costs that remain after application of proceeds from the other
Project Loans, as described above. In no event shall the Partnership be required to draw funds from
the Vista Corp. Loan to repay or partially prepay the City Loan.
Commencing on the date of issuance by the City of a certificate of occupancy for all
residential units in the Project, both the City Loan and Vista Corp. Loan shall have annual equal
payments of principal and interest due and payable on June 1 of each calendar year; provided,
however, that these payments shall only be payable as set forth in this paragraph. To the extent that
the Surplus Cash (as defined below) is generated by the Project in the previous calendar year, the
Partnership shall pay 70% of such Surplus Cash to the City, up to the amount then due to the City
for the current calendar year principal and interest payment, plus any principal and interest which
remain due and unpaid on the City Loan from previous calendar years. Any remaining Surplus Cash
after such payment to the City shall be paid to Vista Corp. until the Vista Corp. Loan has been repaid
in full.
As used herein, the term “Surplus Cash” means the amount by which Gross Revenue (as
defmed in both the City Loan Promissory Note and the Vista Corp. Construction Loan Agreement)
exceeds Annual Operating Expenses. As used herein, the term “Annual Operating Expenses,” with
respect to a particular calendar year shall mean the following costs reasonably and actually incurred
in the operation and maintenance of the Project to the extent they are consistent with an annual
independent audit performed by a certified public accountant using generally accepted accounting
principles: property and other taxes and assessments imposed on the Project; premiums for property
damage and liability insurance; utility services not paid for directly by tenants, including hut not
limited to water, sewer, trash collection, gas and electricity; maintenance and repair including but
not limited topest control, landscaping and grounds maintenance, painting and decorating, cleaning,
common systems repairs, general repairs, janitorial supplies, and others; any annual license or
certificate of occupancy fees required for operation of the Project; general administrative expenses
including but not limited to advertising and marketing, security services and systems, and
professional fees for legal, audit and accounting; property management fees and reimbursements
including on-site manager expense, not to exceed fees and reimbursements which are standard in the
industry; tenant services; cash deposited into a reserve for capital replacements of Project
improvements and an operating reserve in such amounts as has been or may be approved by Vista
Corp.; all asset management! partnership management fees (in an annual amount not to exceed
$20,000 for the first 9 years of the Project, and subject to a 3% annual increase for each subsequent
year); the Developer Fee, to the extent not already paid; amounts due to any limited partner for the
repayment of any Limited Partner Loans pursuant to (and within the meaning of) Section 5.7 of the
Amended and Restated Limited Partnership Agreement ofPacific Vista Las Flores, L.P., acalifomia
Limited Partnership dated as of ,2001 (the “Partnership Agreement”), amounts
1658565.1
due to any limited partner for the payment of the LP Management Fee pursuant to (and within the
meaning of) Section 73c) of the Partnership Agreement; debt service payments, if any, on the
Project Loans (excluding payments of Surplus Cash to City and Vista Corp.); and any other
commerciallyreasonable expenses incurred in the operation ofthe Project (but only to the extent that
the type and amount of such expenses are similar to the operation expenses incurred by owners of
similar affordable housing projects in the same general area as the Project). For purposes hereof,
“Annual Operating Expenses” shall also include fees and other expenses that would be payable to
Borrower’s general partner (or an affiliate of the general partner) as an annual operating expense
under the immediately preceding sentence, but which are paid to limited partner of Borrower
pursuant to terms of the Partnership Agreement or any other agreement between the limited partner
and Borrower or the limited partner and the general partner (or an affiliate of the general partner).
“Annual Operating Expenses” shall not include the following: ground lease payments; or
depreciation, amortization, depletion or other noncash expenses or any amount expended from a
reserve account.
Except as modified by this letter agreement, all other terms and conditions of the City Loan
and Vista Corp. Loan remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
1658565.1
Please acknowledge your agreement with the items contained in this letter by signing three
copies of this letter below and returning all original copies to me. Once I have received executed
counterparts by all parties, I will deliver fhlly executed originals to the City and Vista Cop.
Sincerely,
Barry Getzel, Project Manager
cc: Mr. Ken Sauder
Mr. Eric Larson
Diana Scherer, Esq.
Jon Janecek, Esq.
Darryl Steinhause, Esq.
Holly Traube Cordova, Esq.
AGREED TO AND ACKNOWLEDGED:
CITY OF CARLSBAD, a VISTA LAS FLOWS, CORP., a Delaware
corporation
By:
Name:
Its: City Manager Its:
By:
Name: Ronald R. Ball
City Attorney
[Signatures Continued on Next Page]
1658565.1
PACIFIC VISTA LAS FLORES, L.P.
a California limited partnership
By:
By:
Wakeland Housing and Development
Corporation, a California nonprofit
public benefit corporation, its
managing general partner
By:
Kenneth L. Sauder,
Executive Director
VLF Interfaith Housing Corporation,
a California nonprofit public benefit
corporation, its co-general partner
By:
Matthew B. Jumper,
President
1658565.1
Recording Requested By
And When Recorded Mail To:
Bank of America, N.A.
Loan Administration
Mail Code #CAO-103-04-04
450 B Street, Suite 450
San Diego, CA 92101
Attention: Loan Administration Manager
Loan Number: 28547-1
Space Above For Recorder's Use
AMENDMENT TO SUBORDINATION AGREEMENT
AND CONSENT TO MODIFICATION
This Amendment to Subordination Agreement and Consent to Modification (the
VISTA LAS FLORES, L.P., a California limited partnership (the "Borrower"), CITY OF
"Amendment") is dated for reference purposes as of September 17, 2001, between PACIFIC
CARLSBAD, a municipal corporation (the "Junior Lender"), in favor of BANK OF AMERICA,
N.A., a national banking association (the "Bank).
Factual Background
A. Junior Lender has made, or has agreed to make, a loan to Borrower in the
principal amount of Three Hundred Sixty-Three Thousand Nine Hundred Forty-Eight and No/l00
Dollars ($363,948.00) (the "Subordinated Loan"). The Subordinated Loan is evidenced by a
certain promissory note (the "Subordinated Note"), which is secured by a certain deed of trust
dated February 25, 2001 (the "Subordinated Deed of Trust") recorded March 2, 2001,'as
Instrument Number 2001-0120222, in the Official Records of San Diego County, California,
encumbering certain real property located in San Diego County, California, more particularly
described in Exhibit A attached hereto and made a part hereof (the "Property").
B. Borrower and Junior Lender also have entered into a certain Regulatory
Agreement and Declaration of Restrictive Covenants dated February 28, 2001, recorded
March 2, 2001, as Instrument Number 2001-0120221, in the Official Records of San Diego
County, California (the "Regulatory Agreement") encumbering all or a portion of the Property.
The Regulatory Agreement is hereinafter referred to as the "Restrictions."
C. The Subordinated Note and the Subordinated Deed of Trust and the Restrictions,
together with all of their exhibits, and all other documents which evidence, guaranty, secure, or
otherwise pertain to the Subordinated Loan, collectively constitute the "Subordinated Loan
Documents."
PAC VISTA 11-AMEND TO SUBORO AGR
#091401V1 (Rev. 09/14/01) SRG
1
a CONSENTTO MODIF-CITY OF CARLSBAD
D. Under a under a construction loan agreement (the "Loan Agreement") between
Bank and Borrower (the "Loan Agreement") dated asof February 22, 2001, Bank made a loan
(the "Loan") to Borrower in the principal amount of One Million Three Hundred Eighteen
Thousand and NollOO Dollars ($1,318,000.00).
E. The Loan is evidenced by a promissory note dated as of February 22, 2001 (the
"Note") made payable to Bank in the principal amount of the Loan. In connection with the Loan,
Borrower executed that certain Construction Deed of Trust with Assignment of Rents, Security
Agreement, and Fixture Filing (Affordable Housing - Ca1ifornia)dated as of February 22, 2001,
between Trustor, as Trustor and Beneficiary, as Beneficiary, andrecorded on as of March 2,
2001, as Instrument No. 2001-0120219, in the Official Records of San Diego County, California
(the "Deed of Trust") covering, among other things, the Property.
F. In connection with the Loan, Junior Lender executed that certainsubordination
Agreement dated as of February 22, 2001, between Borrower, Junior Lender, and Bank, recorded
on March 2,2001, as Instrument No. 2001-0120220, in the Official Records of San Diego County,
California (the "Subordination Agreement").
G. Borrower is a partnership formed pursuant to that certain Agreement of Limited
Partnership of Borrower, dated as of June 29, 2000 entered into by WAKELAND HOUSING
AND DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation
("Wakeland") and SAN DIEGO INTERFAITH HOUSING FOUNDATION, a California nonprofit
public benefit corporation ("SDIF") (each, a General Partner, and collectively, the "General
Partner"), and DOREEN KARTES, a married woman (the "Initial Limited Partner"), as the initial
limited partner (the "Original Partnership Agreement"). The Original Partnership Agreement has
been amended and restated pursuant to that certain Amended and Restated Agreement of
"Partnership Agreement"), entered into by Wakeland and VLF INTERFAITH HOUSING
Limited Partnership of Borrower, dated as of September -, 2001 (as amended, the
CORPORATION, a California nonprofit public benefit corporation ("VLF"), as general partners,
and EDISON CAPITAL HOUSING INVESTMENTS, a California corporation (the "Investor
Limited Partner"). Prior to or concurrently with the execution of this Agreement, Initial Limited
Partner has withdrawn as the limited partner of Borrower, and SDIF has withdrawn as a general
partner of Borrower.
H. In connection with the admission of Investor Limited Partner as the sole investor
limited partner of Borrower, Borrower andlor Investor Limited Partner have requested that Bank
modify certain terms and conditions of the Loan, including certain terms of (1) the Loan
Agreement, upon the terms and conditions set forth in that certain Amended and Restated
Construction Loan Agreement, dated of even date herewith, by and between Bank and Borrower
(the "Restated Loan Agreement"), (2) the Deed of Trust, upon the terms and conditions set forth in
that certain Amendment to Construction Deed of Trust with Assignment of Rents, Security
Agreement, and Fixture Filing and Memorandum of Modification dated asof September 17, 2001,
to be recorded concurrently herewith (the 'Rmendment to Deed of Trust"), and (3) certain other
documents being executed in connection with the admission oflnvestor Limited Partner as the
sole investor limited partner of Borrower, including but not limited to (i) anAmended and Restated
PAC VISTA ll-AMEND TO SUBORD AGR
8 CONSENT TO MODIF-CITY OF CARLSBAO
#091401V1 (Rev. 09/14/01) SRG
2
Security Agreement (Assignment of Partnership Interest and Capital Obligations) executed or
being executed by Borrower and General Partner in favor of Bank, and (ii) an Acknowledgment
and Consent executed or being executed by the Investor Limited Partner(collective1y. the
"Amended Security Documents"). The Restated Loan Agreement, theAmendment to Deed of
Trust, and the Amended Security Documents are herein collectively referred to as the "ILP
Admission and Modification Documents." All capitalized terms not defined herein shall have the
meaning set forth in the Restated Loan Agreement, or if not defined in the Restated Loan
Agreement, shall have the meaning set forth in the Subordination Agreement, as applicable.
1. The Loan Agreement, the Note, the Deed of Trust, this Agreement and all other
documents which evidence, guaranty, secure, or otherwise pertain to the Loan, collectively
constitute the "Loan Documents."
J. It is a material condition to Bank's consenting to the admission of the Investor
Limited Partner as the sole Investor Limited Partner of Borrower, approving the Partnership
Agreement (as amended), entering into the Restated Loan Agreement and ILP Admission and
Modification Documents, and modifying the Loan to Borrower that (i) the Deed of Trust, as
modified pursuant to the Amendment to Deed of Trust, unconditionally be and remain at all
times a lien, claim, and charge upon the Property unconditionally prior and superior to the liens,
claims, and charges of the Subordinated Deed of Trust, and (ii) the Subordinated Loan and
Subordinated Loan Documents shall, at all times and in all respects, be wholly subordinate and
inferior in claim and right to theLoan and Loan Documents, as modified pursuant to the Restated
Loan Agreement and the other ILP Admission and Modification Documents.
K. It is to the mutual benefit of the parties that Bank enter into the Restated Loan
Agreement and the other ILP Admission and Modification Documentsand modify the Loan to
Borrower, and Junior Lender is willing that the Deed of Trust, as modified pursuant to the
Amendment to Deed of Trust, constitute a lien, claim, and charge upon the Property
unconditionally prior and superior to the liens, claims, and charges of the Subordinated Deed of
Trust, and that the Subordinated Loan and Subordinated Loan Documents shall, at all times and
in all respects, be wholly subordinate and inferior in claim and right to theLoan and Loan
Documents, as modified pursuant to the Restated Loan Agreement and the other ILP Admission
and Modification Documents.
Agreement
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Accuracy of RecitalslReaffirmation. Junior Lender acknowledges the accuracy of the
Recitals, and reaffirms all of its agreements and obligations under the Subordination Agreement
and the waiver, relinquishment, subjection, and subordination of the Subordinated Loan and
Subordinated Loan Documents, including the Restrictions, thereunder to the Loan and the Loan
Documents, as such have been or may be amended or modified pursuant to the Restated Loan
3
PAC VISTA ll-AMEND TO SUBORD AGR
#091401V1 (Rev. 09/14/01) SRG
a CONSENT TO MODIF-CITY OF CARLSBAD
Agreement and the other ILP Admission and Modification Documents. Except as specifically
hereby amended, the Subordination Agreement shall remain in full force and effect.
2. Consent to Admission of Investor Limited Partner and Modification of Loan Junior
Lender hereby consents to (i) the admission of Investor Limited Partner as the sole investor limited
partner of Borrower pursuant to the terms of the Partnership Agreement, and (ii) the modification of
the Loan and the Loan Documents, including the indebtedness secured by the Deed of Trust, as
modified by the Restated Loan Agreementand the other ILP Admission and Modification
Documents.
3. Modifications to Subordination Agreement The Subordination Agreement is hereby
modified and amended as described below. In the event of a conflict between the terms of the
Subordination Agreement and the terms of this Amendment, this Amendment shall control:
3.1 Recital D. of the Subordination Agreement is amended to read as follows:
Junior Lender and Borrower desire that Bank make, continue, and fund a construction
loan (the "Loan") to Borrower in the principal amount of One Million Three Hundred Eighteen
Thousand and No/100 Dollars ($1,318,000.00). The Loan has been made under a construction
loan agreement (the "Loan Agreement") between Bank and Borrower dated as of the date
Agreement dated as of September 17, 2001 (the Amended Loan Agreement").
hereof, as such is amended pursuant to that certain Amended and Restated Construction Loan
3.2 Recital E. of the Subordination Agreement is amended to read as follows:
The Loan is evidenced by a promissory note dated as of February 22, 2001 (the "Note")
made payable to Bank in the principal amount of the Loan. In connection with the Loan,
Borrower executed that certain Construction Deed of Trust with Assignment of Rents, Security
Agreement, and Fixture Filing (Affordable Housing - California) dated as of February 22, 2001,
between Trustor, as Trustor and Beneficiary, as Beneficiary, andrecorded on as of March 2,
2001, as Instrument No. 2001-0120219, in the Official Records of San Diego County, California,
covering, among other things, the Property (the "Deed of Trust"),as such is amended pursuant to
that certain Amendment to Construction Deed of Trust with Assignment of Rents, Security
Agreement, and Fixture Filing and Memorandum of Modification dated asof September 17, 2001,
and recorded on September - , 2001, as Instrument No. , in the Official Records of
San Diego County, California (the "Amendment to Deed of Trust"). The Loan Agreement, the
Note, the Deed of Trust as amended pursuant to theAmendment to Deed of Trust, this Agreement
and all other documents which evidence, guaranty, secure, or otherwise pertain to the Loan,
collectively constitute the "Loan Documents."
3.3 Section 1 of the Subordination Agreement is amended to read as follows:
The Deed of Trust, as modified by the Amendment to Construction Deed of Trust,
and any and all renewals, modifications, extensions, or advances thereunder or secured
thereby (including interest thereon), are unconditionally and will remain at all times, a
PAC VISTA II-AMEN0 TO SUBORO AGR
#091401V1 (Rev. 09/14/01) SRG
8 CONSENT TO MOOIF-CITY OF CARLSBAD
4
lien, claim, or charge on the Property prior and superior to the Subordinated Deed of
Trust. The Subordinated Loan and Subordinated Loan Documents shall. at all times and
in all respects, be wholly subordinate and inferior in claim and right to theLoan and Loan
Documents, as modified by that certainAmended and Restated Construction Loan
Agreement dated as of September 17. 2001, and all documents executed in connection
therewith, including but not limited to (i) anAmended and Restated Security Agreement
(Assignment of Partnership Interest and Capital Obligations) executed or being executed
by Borrower and General Partner in favor of Bank, and (ii) an Acknowledgment and
Consent executed or being executed by EDISON CAPITAL HOUSING INVESTMENTS,
a California corporation (the "Investor Limited Partner"), and all claims, rights and
remedies therefor are hereby subordinated and made subsequent and inferior to the
Subordinated Loan and Subordinated Loan Documents and any claims, rights, and
remedies arising out of, or in connection therewith.
4. Miscellaneous.
4.1 Further Assurances. Junior Lender shall do, execute, acknowledge, and deliver
any and all such further acts, deeds, conveyances, notices, requests for notices, financing
statements, continuation statements, certificates, assignments, notices of assignments,
agreements, instruments, and further assurances as the Bank shall from time to time require, to
effectuate the subordination of the Subordinated Loan and Subordinated Loan Documents, as
modified hereby, or for carrying out the intention or facilitating the performance of the terms of the
Subordination Agreement, as modified hereby.
4.2 Governing Law. This Amendment is governed by the laws of the State of
California, without regard to the choice of law rules of that state
and the Subordination Agreement, as modified hereby, shall be binding upon and inure to the
benefit of the heirs, and permitted successors, and assigns of the parties.
4.3 Successors in Interest The terms, covenants, and conditions of this Amendment
4.4 Severability. If any provision of this Amendment should be held unenforceable or
void, that provision shall be deemed severable from the remaining provisions and shall in no way
affect the validity of this Amendment or thesubordination Agreement.
4.5 Counterparts. This Amendment and any attached consents or exhibits requiring
signatures may be executed in counterparts. and all counterparts constitute but one and the
same document.
5
PAC VISTA 11-AMEND TO SWORD AGR
8 CONSENT TO MOOIF-CITY OF CARLSBAO
#091401V1 (Rev. 09/14/01) SRG
IN WITNESS WHEREOF, Borrower, Junior Lender, and Bank have executed this Amendment
as of the date first above written.
“JUNIOR LENDER”
Approvedts to Form:
By:
Address for notices to Junior Lender:
City of Carlsbad
Housing & Redevelopment Dept.
2965 Roosevelt Street. SuiteB
&kUhQXR Carlsbad, CA 92008-2037
Attention: Debbie Fountain, Housing & Redevelopment Director
PAC VISTA II-AMEND TO SUBORD AGR
#091401Vl (Rev. 09/14/01) SRG
8 CONSENT TO MODIF-CITY OF CARLSBAD
6
:ALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of SR/~ b/m6 } ss.
6rsonally known to me " lllr
evidence
to be the persond whose name"
subscribed to the within instrument and
acknowledged to me thaa&dt&y executed
the same in mhocltbeir authorized
capacitypf and that by &&&air
the entity upon behalf of which
acted, executed the instrument.
signatureHon the Instrument the
OPTIONAL
by law, it may prove valuable to persons relying on the document
val and reaffachmenf of this form to another document.
Document Date: Number of Pages:
F Individual
[-i Corporate Officer - Title(s):
0 Partner - 0 Limited IT Gen
0 Attorney in Fact
0 Trustee
Guardian or Conservator
Signer Is Representing: L
“BORROWER”
PACIFIC VISTA LAS FLORES, L.P.,
a California limited partnership
By WAKELAND HOUSING AND DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation, its co-general partner
By:
Kenneth L. Sauder, as Executive Director
By VLF INTERFAITH HOUSING CORPORATION,
a California nonprofit public benefit corporation,
its co-general partner
By:
Matthew Jumper, as President
Address for Notices to Borrower:
Pacific Vista Las Flores, L.P
625 Broadway, Suite 61 1
San Diego, CA 92101
Attention: Barry Getzel
“BANK
BANK OF AMERICA, N.A.,
a national banking association
By:
Deborah Ruane, its Vice President
Address for notices to Bank:
Bank of America, N.A.
Mail Code #CAO-103-04-04
Loan Administration
450 B Street, Suite 450
San Diego, CA 92101
Attention: Loan Administration Manager
Loan Number: 28547-1
PAC VISTA II-AMEN0 TO SUBORO AGR
#091401V1 (Rev. 09/14/01) SRG
a CONSENT TO MODIF-CITY OF CARLSBAO
7
STATE OF CALIFORNIA )
) ss
County of j
On this day of September, 2001, before me,
Notarv Public in and for said State, Dersonallv appeared Ravmond R.Patchett. the Citv Manager ,a
of Cll% OF CARLSBAD, a municipal corporaiion. '0 personally known or me or 0 proved to-
me on basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that helshe executed the same in hislher authorized
which the person acted, executed the instrument. capacity, and that by hislher signature on the instrument the person, or the entity upon behalf of
WITNESS my hand and official seal the day and year in this certificate first above written.
STATE OF CALIFORNIA )
County of )
) ss
On this day of September, 2001, before me,
Notary Public in and for said State, personally appeared Kenneth L.Sauder, the Executive
Director, of WAKELAND HOUSING AND DEVELOPMENT CORPORATION, a California
,a
nonprofit public benefit corporation, as co-general partnerof PACIFIC VISTA'LAS FLORES,
satisfactory evidence to be the person whose name is subscribed to the within instrument and
L.P., a California limited partnership, 0 personally known or me or 0 proved to me on basis of
acknowledged to me that he/she executed the same in hislher authorized capacity, and that by
hislher signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal the day and year in this certificate first above written.
PAC VISTA II-AMEND TO SUBORD AGR
#09140lV1 (Rev. 09/14/01) SRG
8 CONSENT TO MODIF-CITY OF CARLSBAD
8
STATE OF CALIFORNIA )
County of
) ss.
)
)
On this day of September, 2001, before me,
Notarv Public in and for said State. Dersonallv ameared Matthew JumDer. the President of VLF ,a
INTERFAITH HOUSING CORPOl&iTION. a’caliiornia nonprofit public benefit corporation, as
co-general partner of PACIFIC VISTA LAS FLORES, L.P., a California limited partnership.0
whose name is subscribed to the within instrument and acknowledged to me that helshe
personally known or me or 0 proved to me on basis of satisfactory evidence to be the person
executed the same in hislher authorized capacity, and that by hislher signature on the
instrument.
instrument the person, or the entity upon behalf of which the person acted, executed the
,~.~ ~~~ . -.
WITNESS my hand and official seal the day and year in this certificate first above written
STATE OF CALIFORNIA )
County of ) ) ss
)
On this day of September, 2001, before me,
Notary Public in and for said State, personally appeared Deborah Ruane. the Vice Presidentof
BANK OF AMERICA, N.A., a national banking association,C) personally known or me or0
proved to me on basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that helshe executed the same in his/her
authorized capacity, and that by hislher signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
.a
WITNESS my hand and official seal the day and year in this certificate first above written.
PAC VISTA ll-AMEND TO SUBORD AGR
8 CONSENT TO MOOIF-CITY OF CARLSBAD
#091401V1 (Rev. 09/14/01) SRG
9
Exhibit A to AMENDMENT TO SUBORDINATION AGREEMENT AND CONSENT TO
MODIFICATION dated for reference purposes as of September 17, 2001.
Description of Property
LOT 134 OF CITY OF CARLSBAD TRACT 97-14, UNIT NO. 1, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO
13840, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 1, 1999.
PAC VISTA 11-AMEND TO SUBORD AGR
UO91401V1 (Rev. 09/14/01) SRG
a CONSENT TO MODIF-CITY OF CARLSBAD
JUNIOR LENDERS CONSENT
terms, conditions, and provisions of the foregoing letter extension agreement (the ”Extension”) and the
CITY OF CARLSBAD, a municipal corporation (the ”Junior Lender”) hereby consents to the
extension of the Maturity Date of the Loan contemplated thereby. All capitalized terms used herein and not
defined shall have the meanings set forth in the Extension. Junior Lender has made, or has agreed to
make, a loan to Borrower in the principal amount of Three Hundred Sixty-Three Thousand Nine Hundred
deed of trust dated February 25,2001 (the “Subordinated Deed of Trust“) recorded March 2,2001, as
Forty-Eight and NollOO Dollars ($363,948.00) (the “Subordinated Loan”), which is secured by a certain
certain real property encumbering certain real property described therein, which includes all or a part of
Instrument Number 2001-0120222, in the Official Records of San Diego County, California encumbering
the Property. Borrower and Junior Lender also have entered into a certain Regulatory Agreement and
Declaration of Restrictive Covenants dated February 28,2001, recorded March 2, 2001, as Instrument
Number 2001-0120221, in the Official Records of San Diego County, California (the “Restrictions”)
together with all of their exhibits, and all other documents which evidence, guaranty, secure, or otherwise encumbering all or a portion of the Property. The Subordinated Deed of Trust and the Restrictions,
pertain to the Subordinated Loan, collectively constitute the “Subordinated Loan Documents.” The Subordinated Deed of Trust and the Subordinated Loan and Subordinated Loan Documents were
subordinated to, and made wholly subordinate and inferior in claim and right to, the Deed of Trust and the
between Borrower, Junior Lender, and Bank, recorded on March 2,2001, as Instrument No. 2001-0120220,
Loan and Loan Documents pursuant to a certain Subordination Agreement dated as of February 22,2001,
amended pursuant to that certain Amendment to Subordination Agreement and Consent to Modification
in the Official Records of San Diego County, California (the ”Subordination”). which Subordination was
dated for reference purposes as of October 12, 2001 and recorded October 29,2001, as Instrument No.
2001-0781474. Official Records of San Diego County, California (the “Amendment”). Junior Lender hereby
agrees that the Subordination, as amended, shall remain in full force and effect, and agrees that the
reaffirms the full force and effectiveness of the Subordination, as amended pursuant to the Amendment,
Subordination, as amended, continues to cover the Loan, and all amounts disbursed, paid, or incurred by
Bank in connection with the Loan, as such is modified and extended pursuant to the Extension.
IN WITNESS WHEREOF, the Junior Lender has executed this Consent as of March 14,2002.
“JUNIOR LENDER”
cornoration
T Raymo
Approved as to Form:
By:
#03M02V3 (03/14/02) SRG
PACIRC VISTA-MOD #Z-LTR EXT AGR
March 14.2002
Pacific Vista Las Flores, L.P.
625 Broadway, Suite 61 1
San Diego. CA 92101
Attention: Barry Getzel
RE EXTENSION OF MATURITY DATE
BORROWER: PACIFIC VISTA LAS FLORES. L.P.
LOAN NO: 28547-1
Dear Ladies and Gentlemen,
LAS FLORES, L.P., a California limited partnership (the "Borrower"), are parties to that certain Amended
and Restated Construction Loan Agreement dated for reference purposes as of October 12,2001 (the
"Loan Agreement") relating to a construction loan (the "Loan") to Borrower in the principal amount of One
Million Three Hundred Eighteen Thousand and No/100 Dollars ($1,318,000.00) (the "Loan Amount"). All
capitalized terms used herein and not defined shall have the meanings set forth in the Loan Agreement, or other Loan Documents (as such term is defined below), as applicable.
BANK OF AMERICA, N.A.. a national banking association (the "Bank") and PACIFIC VISTA
The Loan is evidenced by a certain Promissory Note Secured by Deed of Trust (the "Note"), which is secured by, among other things, a Construction Deed of Trust with Assignment of Rents,
Security Agreement, and Fixture Filing (the "Deed of Trust") dated as of February 22,2001, and recorded
March 2, 2001, as Instrument No. 2001-0120219. Official Records of San Diego County, California, covering the Land, the Improvements, and certain other property, as such has been amended pursuant to a certain Amendment to Construction Deed of Trust with Assignment of Rents, Security Agreement, and
recorded October 29,2001, as Instrument No. 2001-0781473, Official Records of San Diego County,
Fixture Filing and Memorandum of Modification dated for reference purposes as of October 22,2001 and
California. In this Agreement, the "Property" refers to all or any part of the property affected by the Deed
of Trust, or any interest in all or any part of it, as the context requires.
As additional collateral for the Loan, Borrower, and Borrower's general partner, WAKELAND
HOUSING AND DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation
corporation ('VLF") (each, a General Partner, and collectively, the "General Partner"), each pledged and
("Wakeland") and VLF INTERFAITH HOUSING CORPORATION, a California nonprofit public benefit
assigned to Bank, and created a security interest in favor of Bank, as to their respective interests, in and
to, among other things, (i) all of General Partner's rights as a general partner in Borrower including rights under the Partnership Agreement (as such term is defined in the Loan Agreement), (ii) the Tax Credits
(as such term is defined in the Loan Agreement), (iii) the Capital Ob[igations(as such term is defined in the Loan Agreement), (iv) the Investor Funding Agreement(as such term is defined in the Loan
Agreement), and (v) the Investor Security Agreement (as such term is defined in the Loan Agreement), in
"Security Agreement"). accordance with a Security Agreement (Assignment of Partnership Interest and Capital Obligations) (the
Pacific Vista Las Flores, L.P.
March 14,2002
Page 2
Agreement, the Loan Agreement, the Note, the Deed of Trust, and the Security Agreement, together with all
All of the documents executed in connection with the Loans, including, without limitation, this
of their exhibits, and all other documents which evidence, guaranty, secure, or otherwise pertain to the Loan,
as any or all of them may have been amended or modified, shall hereinafter be collectively referred to as the
"Loan Documents."
As of March 14, 2002, Borrower is indebted to Bank pursuant to the Loan Documents in the total principal amount of One Million Seventy-Six Thousand Four Hundred Fifty-Five and 91H 00 Dollars
is due and payable to Bank without offset, counterclaim, or defense of any kind or nature.
($1,076,455.91), together with accrued and unpaid interest thereon (the "Present Debt"), which Present Debt
The Loan matured on March 2,2002 (the "Maturity Date"). Borrower has requested that Bank
extend the Maturity Date of the Loan and Bank is willing to do so upon the terms and conditions set forth
herein.
All sums owing on the Loan shall be due and payable no later than this Extended Maturity Date. Except for the foregoing extension of the Maturity Date, Borrower acknowledges and agrees that Bank has made no
written agreements, representations, or understandings between Borrower and Bank to the contrary. This
commitment and is not obligated to further extend, modify, or renew the Loan and that there are no oral or
Agreement shall not be construed as a waiver of any of the rights or remedies of Bank nor shall it obligate Bank in any manner except as specifically set forth herein.
The maturity date of the Loan is hereby extended to June 2,2002 (the "Extended Maturity Date").
Except as otherwise specifically set forth in this Agreement, no other terms, conditions, or provisions
of the Loan Documents are amended or modified in any manner. All of the other terms, conditions, and
provisions of the Loan Documents and Borrower's obligations thereunder are hereby acknowledged, reaffirmed, and ratified by Borrower, and Borrower acknowledges that it has no claims, offsets, or defenses
with respect thereto.
been satisfied in a manner acceptable to Bank in the exercise of Bank's sde judgment: (a) Bank shall have
received fully executed and, where appropriate, acknowledged originals of (i) this Agreement and the junior
lender consents attached hereto, and (ii) any other documents that Bank may require or request in accordance with this Agreement or the other Loan Documents; & (b) Bank shall have received a fully
earned and non-refundable extension fee in the amount of Three Hundred and No/100 Dollars ($300.00) (the
"Extension Fee") from Borrower in immediately available funds.
This Agreement shall not become effective or operative until all of the following conditions shall have
constitute one and the same agreement, and any party hereto may execute this Agreement by signing any
This Agreement may be executed in any number of counterparts, all of which taken together shall
such counterpart.
PACIFIC VISTA-MOO #2-LlR DCT AGR #030402V3 (031402) SRG
Pacific Vista Las Flores, L.P
March 14,2002
Page 3
If this Agreement accurately sets forth the understanding of Borrower with respect to this matter,
please sign where indicated below, with the signature acknowledged before a notary public, and return the
original Agreement to the Bank by 4:OO p.m. P.S.T. on March 22,2002. When executed, this Agreement
shall be effective as of March 2,2002.
"BANK"
BANK OF AMERICA, N.A.. a
national banking association
By: Deborah Ruane. its Senior Vice President
Address for notices to Bank:
Bank of America, N.A. Loan Administration
Mail Code # CAO-103-04-04 450 B Street, Suite 450
Attention: Loan Administration Manager San Diego, CA 92101
Loan Number: 28547-1
"BORROWER"
PACIFIC VISTA LAS FLORES, L.P.,
a California limited partnership
By WAKELAND HOUSING AND DEVELOPMENT
CORPORATION, a California nonprofit public benefit
corporation, its co-general partner
By:
Kenneth L. Sauder, as Executive Director
By VLF INTERFAITH HOUSING CORPORATION,
a California nonprofit public benefit corporation.
its co-general partner
Matthew Jumper, as President
PACIFIC VISTA-MOO R-LTR EXT AGR #030402V3 (03/14/02) SRG
Pacific Vista Las Flores. L.P.
Page 4
March 14,2002
Address for Notices to Borrower:
626 Broadway, Suite 61 1
Pacific Vista Las Flores. L.P.
Attention: Barry Getzel
San Diego, CA 92101
cc: Lynn Parsons
Susan R. Gilrnan, Esq.
Iw30402V3 (03/14/02) SRG
PACIFIC VISTA-MOD #2-LTR EXT AGR
March 28,2002
TO: CITY MANAGER
FROM: Management Analyst, Housing and Redevelopment Department
VIA: Housing and Redevelopment Direct0
VISTA LAS FLORESMAFUANO AFFORDABLE HOUSING PROJECT
On March 21,2000, the City Council adopted Resolution 2000-93, approving a loan of $363,000
for the Vista Las FloresMariano affordable housing project. Subsequent to the Council’s action,
the City entered into a loan agreement with the developer, Pacific Vista Las Flores. The City’s
loan agreement is subordinate to the construction loan made by Bank of America.
The Vista Las Flores Apartments are complete and 100% occupied. While the developer is in
the process of closing their permanent loan with the California Housing Finance Agency, the
construction loan matured on March 2,2002 and goes into default on April 1,2002. For the
developer to be able to make their final draw on the construction loan, the loan must be extended.
To extend the loan, Bank of America is requiring that the City sign the attached Junior Lender’s
Consent Agreement.
The Assistant City Attorney has approved and signed the attached Junior Lender’s Consent
Agreement. At your earliest convenience, please also review and sign the document.
If you have any questions about the above information, please call me at extension 2817.
% CRAIG RUIZ
CR.cr
I Transmission Report I I I
Dare/T, me
Local ID
CornDany LOSO
Local Name
This document was confirmed.
(reduced sample and details below)
Document Size Letter-S
City of Carlsbad
FACSIMILE TFUVUSMITTAL
3-29-02; 83:00*.M
760 720 6917
CerIsDad CItY Clerk
City of Carlsbad
FACSIMILE TRANSMITTAL
No. of pages transmitted
March 28,2002
TO: Deborah Ruane
COMPANY: Bank of America
PHONE #: 699.5155829
FAX #: 619.515.5973
FROM: Craig Ruiz
DEPT: Housing & Redevelopment
PHONE #: (760) 434-2817
FAX #: (760) 720-2037
MESSAGE:
This written message is for the exclusive use of the addressee and may contain confidential, privileged, and non-closable information. If the
recipient of this message is not the addressee, or a person responsible for delivering the message to the addressee, then the recipient is prohibited
from reading or using this message in any way. If you have received this message by mistake, please call us immediately and destroy the telecopy
message.
Housing & Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, California 92008