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HomeMy WebLinkAboutCT 99-04; CIC LA COSTA LP; 2008-0445221; Subordination Agreement71F.ST OF WO NY ... L'JPT. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Carlsbad 2965 Roosevelt Street, Suite B Carlsbad, CA 92008 Attention: City Manager No fee for recording pursuant to Government Code Section 27383 9998 DQC# 2008-0445221 AUG19, 2008 4:13 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE G R E G 0 RY J. S MIT H. CO LI N T Y R E CO R D E R FEES: 0.00 PAGES: 11 SUBORDINATION AGREEMENT (Real Estate Collateral Management Company) 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 ("Agreement") is made as of April 1, 2008, by CIC La Costa, L.P., a California limited partnership, the owner of the real property hereinafter described (the "Owner"), the City of Carlsbad, a municipal corporation (the "City"), and Real Estate Collateral Management Company, a Delaware corporation (the "RECMC"). RECITALS A. The Owner shall execute a deed of trust, dated as of April 1, 2008 (the "City Deed of Trust"), for the benefit of the City to secure an indebtedness of One Million Nine Hundred Thirty-Two Thousand Dollars ($1,932,000) (the "City Loan"), and which shall be recorded against the property described in Exhibit A attached hereto and incorporated herein (which property, together with all improvements now or hereafter located on the property, is hereinafter referred to as the "Property"). The Owner shall use the proceeds of the City Loan for the permanent financing related to certain improvements on the Property. In addition, the Owner shall execute, and cause to be recorded against the Property, that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of April 1, 2008 (the "City Regulatory Agreement"). The City Deed of Trust and the City Regulatory Agreement are collectively referred to as the "City Documents". B. The Owner previously executed a deed of trust, dated as of June 1, 2006, and recorded against the Property as document number 2006-0414843 in the official records of San Diego County (the "Official Records") on June 12, 2006 (the "RECMC Deed of Trust"), for the benefit of RECMC. C. The City requires that the City Documents be unconditionally and at all times remain a lien upon the Property, prior and superior to the rights of RECMC under the RECMC 1010\18\538810.1 9999 Deed of Trust, and that RECMC specifically and unconditionally subordinate the RECMC Deed of Trust to the lien of the City Documents. D. The City, the Owner, and RECMC all agree to the subordination of the RECMC Deed of Trust in favor of the City Documents on the terms and conditions provided herein. THEREFORE, for valuable consideration and to induce the City to make the City Loan, the Owner, RECMC, and the City hereby agree for the benefit of the City as follows: 1. The City Documents and any renewals or extensions thereof, approved in writing by RECMC (such approval not to be unreasonably withheld), shall unconditionally be and at all times remain a lien on the Property prior and superior to the rights of RECMC under the RECMC Deed of Trust. 2. RECMC intentionally and unconditionally-subordinates the lien of the RECMC Deed of Trust to the lien of the City Documents upon the Property and understands that in reliance upon, and in consideration of, this subordination, specific loans and advances have been, are being or will be made by the City and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this subordination. 3. The parties hereto agree to cooperate with each other and perform any acts and execute, acknowledge and deliver any additional agreements, documents, or instruments that may be reasonably necessary or desirable to carry out the provisions or to effectuate the purpose of this Agreement, including, without limitation, execution, acknowledgment, delivery and recordation of any document necessary to clear title to the Property after a foreclosure under the City Deed of Trust, or a transfer of the Property by an assignment or a deed in lieu of foreclosure under the City Deed of Trust. 4. RECMC covenants and agrees that the City, in making disbursements of the City Loan pursuant to the City Documents, is under no obligation or duty to, nor has the City represented that it will, see to the application of such proceeds by the person or persons to whom the City 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. 5. The City shall deliver to RECMC a copy of all written notices from the City to Owner stating that an Owner Default has occurred under any of the City Documents (each, a "Default Notice") within five (5) business days in each case where the City has given, or is required to give, a Default Notice to Owner. The term "Owner Default" as used herein shall mean the occurrence of a default by Owner in performing or observing any of the terms, covenants or conditions in any of the City Documents to be performed or observed by it, which continues beyond any applicable period provided in the City Documents for curing the default. RECMC shall have the right, but not the obligation, to cure any such Owner Default (without regard as to whether or not the City has accelerated the City Loan) within the same period of time afforded to Owner to cure such Owner Default under the City Documents, provided, however, that the City shall be entitled during such cure period provided to RECMC to continue 1010\18\538810.1 10000 to pursue all of its rights and remedies under the City Documents including, but not limited to, its rights to commence foreclosure proceedings and to the appointment of a receiver and to collect the rents, and shall be entitled to effectuate and implement any such right or remedy under the City Documents, including but not limited to foreclosure and the appointment of a receiver. If a cure is presented by RECMC to the City and accepted by the City (such acceptance not to be unreasonably withheld) within the applicable cure period, then such Owner Default shall be deemed cured and the City Loan (provided that there is no other default under the City Documents) shall be retroactively reinstated as if such Owner Default had never occurred. All amounts paid by RECMC to the City to cure an Owner Default shall be deemed to have been advanced by RECMC pursuant to, and shall be secured by the lien of, RECMC Deed of Trust. 6. Formal notices, demands, and communications among the parties shall be sufficiently given if, and shall not be deemed given unless, secured personally, or dispatched by certified mail, return receipt requested, or reputable overnight delivery service with a receipt showing date of delivery, to the principal offices of the parties as follows: City: City of Carlsbad 2965 Roosevelt Street, Suite B Carlsbad, CA 92008 Attention: City Manager Owner: CC La Costa, L.P. 725 South Coast Highway 101 Encinitas, CA 92024 Attention: James J. Schmid RECMC: Real Estate Collateral Management Company c/o Morrow Development, Inc. 1903 Wright Place, Suite 180 Carlsbad, CA 92008 Attn: Mr. Fred Arbuckle With a copy to: Luce, Forward, Hamilton & Scripps LLP 600 West Broadway, Suite 2600 San Diego, CA 92101 Attn: Ronald W. Rouse, Esq., and Ben Hirasawa, Esq. Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this Section 6. Delivery shall be deemed to have occurred at the time indicated on the receipt for delivery or refusal of delivery. 7. This Agreement shall be the whole agreement with regard to the subordination of RECMC Deed of Trust to the City Documents, and shall supersede and cancel, but only insofar as would affect the priority of the City Deed of Trust, any prior agreements as to such subordination. 1010\18\538810.1 10001 8. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute and be construed as one and the same instrument. Remainder of Page Left Intentionally Blank 1010\18\538810.1 10002 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. CITY: //_ _/;<_.. __ ation I/ / DEPUTY CITY MANAGER OWNER: CIC LA COSTA, L.P., a California limited partnership By: DDC La Costa, LLC, a California limited liability company, its Co4jeneraJ Partner me: James J./Scnmid President. Chelsea Investment Corporation, its Manager By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation, its Managing General Partner By: Name: Jack K. Javnes Its: President/Executive Director [SIGNATURES CONTINUE ON FOLLOWING PAGE] 1010\18\538810.1 10003 RECMC: REAL ESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware corporation Name: Timothy P. Shanley Its: \§Bc President (ALL SIGNATURES MUST BE ACKNOWLEDGED) 1010\18\5388IO.I 10004 STATE OF CALIFORNIA COUNTY OF ~ ^ On ,_ \VJr\P, Notary Public, personally appeared. 0 ) before me, ^ , who proved to me on the basis of satisfactory evidence to be the person^) whose name(«5 is/are subscribed to the within instrument and acknowledged to me that he/she/they- executed the same in his/her&hek authorized capacity(i^5, and that by his/her/their signature(^Con the instrument the person"^, or the entity upon behalf of which the person(£\ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature \r STATE OF CALIFORNIA COUNTY OF (Seal) AMMCIALConvnWon Notary Pubte San Otoao County On _, 20 before me, __ Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA COUNTY OF On _, 20 before me, Notary Public, personally appeared 1010\18\538810.1 10005 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On &G Date personally appeared before me, -+J7 Here Insert Name and Title of the Officer Name(s) of Signer(s) G. R. WITHERS Commission # 1680068 Notary Public - CaHtofrta | San Diego County f My Comm. Expires Jul 8. 201 Of who proved to me on the basis of satisfactory evidence to be the personfs)- whose name(s) is/afe subscribed to the within instrument and acknowledged to me that he/oHo/thoy executed the same in his/hef#hetf authorized capacity(ies)r and that by his/hentheir signaturefs)-on the instrument the person^, or the entity upon behalf of which the person^) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my hand and official seal. Signature]Signature of Notary Public OPTIONAL 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 reattachment of this form to another document. Description of Attached Document Title or Type of Document: ^)^ Document Date: ¥ - 0'/ - ft Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 10006 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On 4* V/- 700% before me, (~T, £. luJ-M<29S. Date _ Here Insert-fl personally appeared A~. Here Insert-flame and Title of the Officer J^ lame(s) of Signer(s) \6. R. WITHERS Commission # 16*0066 Notoiy Public - CoHfomla | San Diego County r My Comm. Expires Jul 8. 201 Of Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(e) whose namefs)- is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hefAheif authorized capacity^tes), and that by his/hor/thcir signature^ on the instrument the person^), or the entity upon behalf of which the person{e)- acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature,Signature of Notary Public OPTIONAL 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 reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D D D n D D D Individual Corporate Officer — Title(s): Partner — D Limited D General Attorney in Fact Trustee Guardian or Conservator Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT [ OF SIGNER Top of thumb here © 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402»www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 10007 , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature . (Seal) STATE OF GA-LIFGRNIA COUNTY OF. 20$PbeforeOn Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(^) whose name($) is/ate subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS myjiand and official seal. Signature.(Seal)DIANA C. NOTARY PUBLIC, COMMISSION 1010\18\538810.1 10008 EXHIBIT A DESCRIPTION OF PROPERTY Lots 207, 208 and 209 of City of Carlsbad Tract99-04-03 Villages at La Costa, La Costa Oaks North, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 15318, filed in the Office of the County Recorder of San Diego County, April 18, 2006. APN: 223-810-14; 223-810-15 and 223-810-16 1010\18\538810.2