HomeMy WebLinkAbout; Litvin, Alla; 2004-0220522; Subordination AgreementCARLSBAD HOMEBUYER ASSISTANCE PROGRAM
NOTICE TO BORROWER:
THIS NOTE IS NOT ASSUMABLE
PROMISSORY NOTE
Secured by Deed of Trust
$20,000.00 Carlsbad, California
August 3, 1999
FOR VALUE RECEIVED, the undersigned ALLA LITVIN (the
"Borrower") promises to pay to the City of Carlsbad, a municipal
corporation (the "City"), or order, at the Housing and
Redevelopment Department, 2965 Roosevelt Street, Suite B,
Carlsbad, California 92008, or such other place as the City may
designate in writing, the principal sum of $20,000.00 plus
Contingent Interest calculated pursuant to Section 4 below.
1. Purpose of Loan. Borrower is purchasing the
Residence located at 1314 STATICE COURT in the City of Carlsbad.
This Note evidences a loan made by the City to the Borrower (the
"City Loan") pursuant to the Carlsbad Homebuyer Assistance
Program ("CHAP"). The City Loan is in the amount determined by
the City to be necessary for the Borrower to afford to purchase
the Residence making a reasonable downpayment and using
conventional first mortgage financing for the balance of the
purchase price not financed by the City Loan.
2. Definitions. The terms set forth in this Section shall
have the following meanings in this Note.
(a) "Appreciation Amount" shall mean the amount
calculated by subtracting the total original purchase price of
the Residence paid by the Borrower, which was ONE HUNDRED FIFTY
NINE THOUSAND NINE HUNDRED TWENTY AND NO/100 Dollars
($159,920.00), from one of the following amounts, as applicable:
(i) in the event of a sale of the Residence, the amount received
by the Borrower as the sale price of the Residence, as certified
by the Borrower pursuant to Section 13 below; o^A(^i"ffU.(3 %n§t,
event of a prepayment of this Note, /a^^fl&lelP other thanxSsale of
the Residence, or in the event of a aefauJ^f^jpi^s/Pair M^rJ€et^^
Value of the Residence; or (iii) in QftMevfenf a' credi£0r acquires
title to the Residence through a deed in lieu of for^ieloourfi^--a-
trustee's deed upon sale, or otherwise, the am&urit^^±arTor the
1010\02\104140.02 ___- "~~
r
Residence at a creditor's sale of the Residence.
(b) "Contingent Interest" shall mean the percentage of
the Appreciation Amount set out in Section 4.
(c) "Fair Market Value" shall be determined by a real
estate appraisal made by an independent residential appraiser
designated by the City. If possible, the appraisal shall be
based upon the sales prices of comparable properties sold in the
market area during the preceding three-month period. The cost of
the appraisal shall be paid by the Borrower. Nothing in this
subparagraph shall preclude the Borrower and the City from
establishing the Fair Market Value of the Residence by mutual
agreement in lieu of an appraisal.
(d) "First Mortgage" shall mean the promissory note
and deed of trust evidencing and securing the first mortgage loan
for the Residence.
(e) "Residence" shall mean the housing unit and land
encumbered by the deed of trust executed in connection with this
Note.
(f) "Transfer" shall mean any sale, assignment or
transfer, voluntary or involuntary, of any interest in the
Residence, including, but not limited to, a fee simple interest,
a joint tenancy interest, tenancy in common interest, a life
estate, a leasehold interest, or an interest evidenced by a land
contract by which possession of the Residence is transferred and
the Borrower retains title. Any Transfer without satisfaction of
the provisions of this Note is prohibited. A transfer: (i) to an
existing spouse who is also an obligor under the Note; (ii) by a
Borrower to a spouse where the spouse becomes the co-owner of the
Residence; (iii) between spouses as part of a marriage
dissolution proceeding; (iv) to an existing spouse or child of
the Borrower by devise or inheritance following the death of the
Borrower; (v) by the Borrower into an inter vivos trust in which
the Borrower is the beneficiary; or (vi) by deed of trust or
imposition of a lien subordinate to the Deed of Trust, shall not
be considered a Transfer for the purposes of this Note; provided,
however, that the Borrower shall continue to occupy the Residence
as his or her principal place of residence and the Borrower shall
provide written notice of such transfer to the City pursuant to
Section 14 below.
3. Security. This Note is secured by a second deed of
trust dated the same date as this Note (the "Deed of Trust").
4. Contingent Interest. The
interest equal to TWELVE POINT FIVE
Appreciation Amount (the "Contingent
other than Contingent Interest shall be due hereund
1010\02\104140.02 2
Contingent Interest shall be paid to the City at the time set
forth in Section 7(b) below, unless forgiven by the City pursuant
to Section 7(c) below. Borrower acknowledges that the Contingent
Interest percentage amount is equal to the City/Seller Loan
principal amount as a percentage of the total purchase price of
the Home paid by the Borrower at the time of purchase, multiplied
by seventy-five one hundredths (.75). Borrower acknowledges that
this calculation of the percentage of the Appreciation Amount due
to the City as Contingent Interest includes a twenty-five percent
(25%) discount to Borrower to account for any capital
improvements Borrower may make to the Residence.
5. Term. The Term of this Note shall mean the period
commencing on the date of this Note and expiring on the date
fifteen (15) years thereafter.
6. Residency. First Time Homebuver. and Owner-Occupancy
Requirements; Representations Regarding Requirements.
(a) The Borrower shall either have lived in the City for a
minimum of sixty (60) days or work in the City, and also be a
first time homebuyer. Failure of the Borrower to comply with
these requirements shall be a default under this Note. The
Borrower shall provide written certification to the City that he
or she meets these requirements.
(b) The Borrower is required to occupy the Residence as his
or her principal place of residence, and failure by the Borrower
to comply with this requirement shall be a default under this
Note. The Borrower shall be considered as occupying the
Residence if the Borrower is living in the Residence for at least
ten (10) months out of each calendar year. The Borrower shall
provide an annual written certification to the City that the
Borrower is occupying the Residence as his or her principal place
of residence. The Borrower shall not lease the Home to another
party. Any lease of the Residence shall be a default under this
Note.
(c) Borrower hereby certifies that all income, residency or
employment, and first time homebuyer status information
previously submitted to the City is true and correct.
Misrepresentation by Borrower of this information provided to the
City shall be a default under this Note.
7. Repayment.
(a) Repayment of the principal amount of this Note
shall be deferred for the first five years from the date of this
Note. At the end of five (5) years, the Borrower.shajL:
making monthly repayments of principalQ^'ttli®Cialfomtt. S
HUNDRED SIXTY SIX AND 67/100 Dollars (p.66^7^) (J^a^d
(10) year principal repayment schedule^-aiaa Sflue ana p^^afj^le on the
1010\02\104140.02 3
r» c
(10) year principal repayment schedule and due and payable on the
first day of each calendar month commencing SEPTEMBER 1ST, 2004.
(b) The total amount of the principal and any
Contingent Interest owed under this Note shall immediately become
due and payable (i) in the event of a default by the Borrower
under this Note, the Deed of Trust, or the First Mortgage, (ii)
on the date Transfer is made whether voluntarily, involuntarily,
or by operation of law and whether by deed, contract of sale,
gift, devise, bequest or otherwise, (iii) in the event Borrower
ceases to occupy the Residence as his or her principal place of
residence; or (iv) at the end of the Term of this Note as
described above in Section 5. Failure to declare such amounts
due shall not constitute a waiver on the part of the City to
declare them due in the event of a subsequent Transfer.
(c) In the event, upon expiration of the Term, (i) no
Transfer has occurred, (ii) Borrower has repaid all principal
pursuant to subsection (a) above, (iii) Borrower continues to
owner-occupy the Residence, and (iv) Borrower is not in default
hereunder or under the Deed of Trust, the City shall forgive
repayment of all Contingent Interest due hereunder.
8. Late Payment Fees. If any payment due hereunder is
not paid within five (5) days from the date such becomes due,
Borrower shall pay a reasonable late or collection charge equal
to five percent (5%) of the amount so unpaid. The City and
Borrower agree that the actual damages and costs sustained by the
City due to the failure to make timely payments would be
extremely difficult to measure and that the charges specified in
this paragraph represent a reasonable estimate by Borrower and
the .City of a fair average compensation for such damages and
costs. Such charges shall be paid by Borrower without prejudice
to the right of the City to collect any other amounts provided to
be paid under this Note or the Deed of Trust or, with respect to
late payments, to declare a default.
9. Prepayments. The Borrower may prepay all or part of
the balance due under this Note including principal and
Contingent Interest. In the event the entire amount of principal
due under this Note is prepaid, all Contingent Interest,
calculated as of the date of prepayment, shall also be due at the
time of prepayment.
10. No Assumption of Note. The Borrower acknowledges that
this Note is given in connection with the purchase of property
(the "Residence") as part of a program of the Agency to assist in
the purchase of homes by lower income persons. Consequently,
this Note is not assumable by transferees of the
is due in full upon Transfer. rve.rt\f}G^ ^
11. Maintenance; Taxes; Insurance.
1010X02X104140.02 4
the Residence in good repair and in a neat, clean and orderly
condition. Borrower shall promptly pay all property taxes due on
the Residence prior to any delinquency and shall comply with the
insurance requirements set forth in the Deed of Trust.
12. Refinance of First Mortgage Loan. The outstanding
principal and interest on this Note shall not be due upon
prepayment and refinance of the First Mortgage, and the Deed of
Trust shall be subordinated to the refinanced loan, provided that
(i) such refinancing is approved by the City, (ii) the amount
refinanced does not exceed the outstanding principal balance of
the First Mortgage at the time of refinance plus reasonable costs
of refinance, and (iii) the refinance does not result in higher
monthly payments on the First Mortgage Loan than were due prior
to the refinance.
13. Certification of Purchase Price on Transfer. Upon any
sale of the Residence, the Borrower shall submit to the City at
least fifteen (15) days prior to the close of escrow, a copy of
the sales contract and a written declaration, under penalty of
perjury, from the Borrower and the proposed purchaser in a form
acceptable to the City stating the gross sales price of the
Residence. The certification shall also provide that the
proposed purchaser or any other party has not paid and will not
pay to the Borrower, and the Borrower has not received and will
not receive from the proposed purchaser or any other party, money
or other consideration, including personal property, in addition
to what is set forth in the sales contract.
14. Notice to City of Transfers. Borrower shall provide
the City with written notice of any sale, assignment or transfer,
voluntary or involuntary, of any interest in the Residence,
including, but not limited to, encumbrance of the Residence with
a junior deed of trust or transfer of the Residence to a spouse
or trust. Borrower shall provide this notice to the City no
later than fifteen (15) days before the sale, assignment, or
transfer occurs, except where the transfer is by devise or
inheritance after death of the Borrower in which event notice
shall be provided within thirty (30) days of the date of the
transfer.
15. Default.
(a) The Borrower shall be in default under this Note
if he or she is in default under the First Mortgage following the
expiration of First Mortgage cure periods, or if, after the
notice and cure period provided by the City to the Borrowe
pursuant to the notice and cure provisio
the Borrower (i) fails to pay any money whfemte ^nder this Note;
(ii) breaches any representation or coverreM^-f^C&e-'SPJthi&Note in
any material respect; or (iii) breaches any provision fyj. the Deed
of Trust.
1010\02\104140.02 c
c* c
(b) Upon the Borrower's breach of any covenant or
agreement of the Borrower in this Note or the Deed of Trust,
including, but not limited to, the covenants to pay, when due,
any sums secured by the Deed of Trust, the City, prior to
acceleration, will send, in the manner set forth in Section 20,
notice to the Borrower specifying: (1) the breach; (2) if the
breach is curable, the action required to cure such breach; (3) a
date, not less than thirty (30) days from the date the notice is
effective, by which such breach, if curable, is to be cured and
(4) if the breach is curable, that failure to cure such breach on
or before the date specified in the notice may result in
acceleration of the sums secured by the Deed of Trust and
foreclosure by the City. The notice will also inform the
Borrower of the Borrower's right to reinstate after acceleration
and the right to bring a court action to assert the nonexistence
of default or any other defense of the Borrower to acceleration
and sale.
16. Acceleration. Upon the occurrence of a default under
this Note, the Deed of Trust, or the First Mortgage, the City
shall have the right to declare the full amount of the principal
along with any Contingent Interest under this Note immediately
due and payable. Any failure by the City to pursue its legal and
equitable remedies upon default shall not constitute a waiver of
the City's right to declare a default and exercise all of its
rights under this Note and the Deed of Trust. Nor shall
acceptance by the City of any payment provided for herein
constitute a waiver of the City's right to require prompt payment
of any remaining principal and interest owed.
17. No Offset. The Borrower hereby waives any rights of
offset it now has or may later have against the City, its
successors and assigns, and agrees to make the payments called
for in this Note in accordance with the terms of this Note.
18. Waiver: Attorney Fees and Costs. The Borrower and any
endorsers or guarantors o'f this Note, for themselves, their
heirs, legal representatives, successors and assigns,
respectively, severally waive diligence, presentment, protest,
and demand, and notice of protest, dishonor and non-payment of
this Note, and expressly waive any rights to be released by
reason of any extension of time or change in terms of payment, or
change, alteration or release of any security given for the
payments hereof, and expressly waive the right to plead any and
all statutes of limitations as a defense to any demand on this
Note or agreement to pay the same, and jointly and severally
agree to pay all costs of collection when incurred, including
reasonable attorney fees. If an action is injsti^iite&Sbi^ tn>s-
Note, the Borrower promises to pay, in
disbursements allowed by law, such sum
reasonable as attorneys' fees in such actron'.
1010\02U04140.02 c
19. No Waiver by the City. No waiver of any breach,
default or failure of condition under the terms of this Note
shall be implied from any failure of the City to take action with
respect to such breach, default or failure or from any previous
waiver of any similar or unrelated breach, default or failure.
20. Notices. All notices required in this Note shall be
sent by certified mail, return receipt requested, or express
delivery service with a delivery receipt, or personally delivered
with a delivery receipt obtained and shall be deemed to be
effective as of the date shown on the delivery receipt as the
date of delivery, the date delivery was refused, or the date the
notice was returned as undeliverable as follows:
To the Borrower:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attention: Housing and Redevelopment Director
The parties may subsequently change addresses by providing
written notice of the change in address to the other parties in
accordance with this Section 20.
21. Joint and Several Obligations. This Note is the joint
and several obligation of all makers, sureties, guarantors and
endorsers, and shall be binding upon them and their successors
and assigns.
22. Controlling Law. This Note shall be construed in
accordance with and be governed by the laws of the State of
California.
23. Assignment by City. The City may assign its right to
receive the proceeds under this Note to any person and upon
notice to the Borrower by the City all payments shall be made to
the assignee.
24. Invalid Provisions. If any one or more of the ,4
provisions contained in this Note shall for any reasqn
be invalid, illegal or unenforceable in any j^sjgjjsipfltpMil
provision or provisions shall be deemed ^sre^able^£.£^m the
remaining provisions contained in this No-fea^S^^1^ No
be construed as if such invalid, illegal ur unenforceab
provision had never been contained in this Note.
1010\02\104140.02 -7
c
25. Entire Agreement. This Note (along with the Deed of
Trust) sets forth the entire understanding and agreement of the
City and the Borrower and any amendment, alteration or
interpretation of this Note must be in writing signed by both the
City and the Borrower.
BORROWER
ALIA LITVIN
(Print Name)
1010X02M04140.02
DOC ft 1999-0594476
J^
Recording Requested and 11783 «UB 27, 1999 4 = 48 PM
When Recorded Mail To:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2839
Attn: Housing and Redevelopment Director
NOTE TO BORROWER:1999-0594476
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS
DEED OF TRUST
AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust")
made as of this 3rd day of August 1999, among Alia Litvin, a
single woman("Borrower") as trustor, and First American Title
Insurance Company ("Trustee"), and the City of Carlsbad, a
municipal corporation (the "City"), as beneficiary.
The Borrower, in consideration of the promises herein
recited and the trust herein created, irrevocably grants,
transfers, conveys and assigns to the Trustee, in trust, with
power of sale, the property located in the City of Carlsbad,
State of California, described in the attached Exhibit "A" (the
"Property").
TOGETHER with all the improvements now or hereafter erected
on the property, and all easements, rights, appurtenances, and
all fixtures now or hereafter attached to the property, all of
which, including replacements and additions thereto, shall be
deemed to be and remain a part of the property covered by this
Deed of Trust; and
TOGETHER with all articles of personal property or fixtures
now or hereafter attached to or used in and about the building or
buildings now erected or hereafter to be erected on the Property
which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for
which they were or are to be erected, including all other goods
and chattels and personal property as are ever used or furnished
in operating a building, or the activities conducted therein,
similar to the one herein described and referred to, and all
renewals or replacements thereof or articles in substitution
therefore, whether or not the same are, or shall be attached to
said building or buildings in any manner; and all of the
foregoing, together with the Property, is herein referred to as
the "Security";
1010\02\104149.01
Recording Requested and
When Recorded Mail To:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2839
Attn: Housing and Redevelopment Director
NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS
DEED OF TRUST
AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust")
made as of this 3rd day of August 1999, among Alia Litvin, a
single woman("Borrower"} as trustor, and First American Title
Insurance Company ("Trustee"), and the City of Carlsbad, a
municipal corporation (the "City"), as beneficiary.
The Borrower, in consideration of the promises herein
recited and the trust herein created, irrevocably grants,
transfers, conveys and assigns to the Trustee, in trust, with
power of sale, the property located in the City of Carlsbad,
State of California, described in the attached Exhibit "A" (the
"Property").
TOGETHER with all the improvements now or hereafter erected
on the property, and all easements, rights, appurtenances, and
all fixtures now or hereafter attached to the property, all of
which, including replacements and additions thereto, shall be
deemed to be and remain a part of the property covered by this
Deed of Trust; and
TOGETHER with all articles of personal property or fixtures
now or hereafter attached to or used in and about the building or
buildings now erected or hereafter to be erected on the Property
which are necessary to the complete and comfortable use and
occupancy of such building or buildings for the purposes for
which they were or are to be erected, including all other goods
and chattels and personal property as are ever used or furnished
in operating a building, or the activities conducted therein,
similar to the one herein described and referred to, and all
renewals or replacements thereof or articles in substitution
therefore, whether or not the same ar^,, or. shall be attached to
said building or buildings in any mamr^f^aifd *-a-lliV-bf-: thev? i<; -;
foregoing, together with the Propert^^^^Qh^i^^g^referjf^d, to as
the "Security"; W*~ '
1010X02X104149.01
To have and to hold the Security together with acquittances
to the Trustee, its successors and assigns forever;
TO SECURE to the City the repayment of the sums evidenced by
a promissory note executed by the Borrower to the City dated
August 3, 1999, in the amount of Twenty Thousand Dollars
($20,000.00) (the "Note");
TO SECURE to the City the payment of all other sums, with
interest thereon, advanced in accordance herewith to protect the
security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower contained in the Note
and this Deed of Trust; and
TO SECURE the performance of any obligations of Borrower in
any other agreements with respect to the financing of the
Property or the Security the failure of which would adversely
affect Beneficiary, whether or not Beneficiary is a party to such
agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. Borrower's Estate. That the Borrower is lawfully
seized of the estate hereby conveyed and has the right to grant
and convey the Security, that other than this Deed of Trust, the
Security is encumbered only by that deed of trust executed by the
Borrower in connection with a loan made to the Borrower by FREMONT
•INVESTMENT & LOAN or its successors and assigns (the
"First Lender"), dated AUGUST 20 . 19_99, executed by the
Borrower in favor of First Lender, and recorded in the County of
San Diego concurrent herewith _, and assigned Recorder's Serial
No. (the "First Lender Deed of Trust"), securing a
promissory note executed by the Borrower in favor of the First
Lender ("First Lender Note"), to assist in the purchase of the
Property. The Borrower agrees to warrant and defend generally
the title to the Security against all claims and demands, subject
to.any declarations, easements or restrictions listed in a
schedule of exceptions to coverage in any title insurance policy
insuring the City's interest in the Security. (As used in this
Deed of Trust, the term "First Lender" shall include all
successors and assigns of the First Lender.)
2. Repayment of Loan. The Borrower will promptly repay,
when due, the principal and interest required by the Note. The
Note contains the following provisions concerning repayment of
the loan under certain conditions:
No Assumption of Note. The Borrower acknowledges that
this Note is given in connection with the rmjgdhase of
property (the "ResidenceV-^^aa |g^fejtgs <U£T^Ugc-ygtam of the
Agency to assist in tS^'pur^nase of homes by^ lower
income persons. Co "
assumable by transferees of the Residejl£e^lte»*fcr~is due
in full upon Transfer.
1010\02U04149.01
•I
perform all of the covenants and agreements of the First Lender
Note, First Lender Deed of Trust, and related First Lender loan
documents.
4. Owner-Occupancy Required; No Leasing Permitted. The
Borrower shall occupy the Property as his or her principal place
of residence. The Borrower shall be considered as occupying the
Property if the Borrower is living in the unit for at least ten
(10) months out of each calendar year. The Borrower shall
provide an annual written certification to the City that the
Borrower is occupying the Property as his or her principal place
of residence. The Borrower shall not lease the Property to
another party. Any lease of the Property shall be a default
hereunder.
5. Charges; Liens. The Borrower will pay all taxes,
assessments and other charges, fines and impositions attributable
to the Security which may attain a priority over this Deed of
Trust, by the Borrower making any payment, when due, directly to
the payee thereof. The Borrower will promptly furnish to the
City all notices of amounts due under this paragraph, and in the
event the Borrower makes payment directly, the Borrower will
promptly discharge any lien which has priority over this Deed of
Trust; provided, that the Borrower will not be required to
discharge the lien of the First Lender Deed of Trust or any other
lien described in this paragraph so long as the Borrower will
agree in writing to the payment of the obligation secured by such
lien in a manner acceptable to the City, or will, in good faith,
contest such lien by, or defend enforcement of such lien in,
legal proceedings which operate to prevent the enforcement of the
lien or forfeiture of the Security or any part thereof.
6. Hazard Insurance. The Borrower will keep the Security
insured by a standard fire and extended coverage insurance policy
in at least an amount equal to the replacement cost of the
Security, but in no event less than the amount necessary to
prevent the Borrower from becoming a co-insurer under the terms
of the policy.
The insurance carrier providing this insurance shall be
licensed to do business in the State of California and be chosen
by the Borrower subject to approval by the City; provided, that
such approval will not be withheld if the insurer is also
approved by the First Lender, the Federal Home Loan Mortgage
Corporation, Fannie Mae, Freddie Mac, the United States
Department of Housing and Urban Development, the United States
Department of Veterans Affairs, or successors thereto.
All insurance policies and renewals thereof will be in a
form acceptable to the City and will include a standard mortgac
clause with standard lender's endorsement in favor of ttep. i|ap3!L£
of the First Lender Note and the City as their »j*o£igees&:s may
appear and in a form acceptable to the £^£$tf\@The City she'll have
the right to hold, or cause its designated.,^e|iC^9?hp'^, the
policies and renewals thereof, and the SaQirBwer sha!^/prompt3j
furnish to the City, or its designated agent, the
1010\02\104149.01 -3
insurance policies or certificates of insurance, all renewal
notices and all receipts of paid premiums. In the event of loss,
the Borrower will give prompt notice to the insurance carrier and
the City or its designated agent. The City, or its designated
agent, may make proof of loss if not made promptly by the
Borrower. The City shall receive thirty days advance notice of
cancellation of any insurance policies required under this
section.
Unless the City and the Borrower otherwise agree in writing,
insurance proceeds, subject to the rights of the First Lender,
will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and
the Security of this Deed of Trust is not thereby impaired. If
such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance
proceeds will be used, subject to the rights of the First Lender,
to repay the Note and all sums secured by this Deed of Trust,
with the excess, if any, paid to the Borrower. If the Security
is abandoned by the Borrower, or if the Borrower fails to respond
to the City, or its designated agent, within thirty (30) days
from the date notice is mailed by either of them to the Borrower
that the insurance carrier offers to settle a claim for insurance
benefits, the City, or its designated agent, is authorized,
subject to the rights of the First Lender, to collect and apply
the insurance proceeds at the City's option either to restoration
or repair of the Security or to repay the Note and all sums
secured by this Deed of Trust.
If the Security is acquired by the City, all right, title
and interest of the Borrower in and to any insurance policy and
in and to the proceeds thereof resulting from damage to the
Security prior to the sale or acquisition will pass to the City
to the extent of the sums secured by this Deed of Trust
immediately prior to such sale or acquisition subject to the
rights of the First Lender.
7. Preservation and Maintenance of Security. The Borrower
will keep the Security in good repair and will not commit waste
or permit impairment or deterioration of the Security.
8. Protection of the City's Security. If the Borrower
fails to perform the covenants and agreements contained in this
Deed of Trust, the First Lender Note, the First Lender Deed of
Trust, or if any action or proceeding is commenced which
materially affects the City's interest in the Security,
including, but not limited to, default under the First Lender
Deed of Trust, the First Lender Note or any other deed of trust
encumbering the Property, eminent domain, insolvency, code
enforcement, or arrangements or proceedings involving a
or decedent, then the City, at the City's option, upp^ 9oiice to
the Borrower, may make such appearances, disb/ulirsCQ %lich sums and
take such action as it determines necessaCE^b'lft) ^>r0^§0)^Qie City's
interest, including but not limited to, disb:u$&'€meht
reasonable attorney's fees and entry upon Si Ke Secu^ij^X^o ma-ke "
repairs.
1010\02\104149.01 .
Any amounts disbursed by the City pursuant to this
paragraph, with interest thereon, will become an indebtedness of
the Borrower secured by this Deed of Trust. Unless the Borrower
and City agree in writing to other terms of payment, such amount
will be payable upon notice from the City to the Borrower
requesting payment thereof, and will bear interest from the date
of disbursement at the lesser of ten percent (10%) or the highest
rate permissible under applicable law. Nothing contained in this
paragraph will require the City to incur any expense or take any
action hereunder.
9. Inspection. The City may make or cause to be made
reasonable entries upon and inspections of the Security; provided
that the City will give the Borrower reasonable notice of
inspection.
10. Forbearance by the City Not a Waiver. Any forbearance
by the City in exercising any right or remedy will not be a
waiver of the exercise of any such right or remedy. The
procurement of insurance or the payment of taxes or other liens
or charges by the City will not be a waiver of the City's right
to accelerate the maturity of the indebtedness secured by this
Deed of Trust.
11. Remedies Cumulative. All remedies provided in this
Deed of Trust are distinct and cumulative to any other right or
remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concurrently,
independently or successively.
12. Successors and Assigns Bound. The covenants and
agreements herein contained shall bind, and the rights hereunder
shall inure to, the respective successors and assigns of the City
and the Borrower subject to the provisions of this Deed of Trust.
13. Joint and Several Liability. All covenants and
agreements of the Borrower shall be joint and several.
1010\02\104149.01
14. Notice. Except for any notice required under
applicable law to be given in another manner, all notices
required in this Deed of Trust shall be sent by certified mail,
return receipt requested or express delivery service with a
delivery receipt, or personally delivered with a delivery receipt
obtained, and shall be deemed to be effective as of the date
shown on the delivery receipt as the date of delivery, the date
delivery was refused, or the date the notice was returned as
undeliverable as follows:
To the Owner:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Housing and Redevelopment Director
The parties may subsequently change addresses by providing
written notice of the change in address to the other parties in
accordance with this section.
15. Controlling Law. This Deed of Trust shall be construed
in accordance with and be governed by the laws of the State of
California.
16. Invalid Provisions. If any one or more of the
provisions contained in this Deed of Trust or the Note shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, then such provision or provisions shall be deemed
severable from the remaining provisions, and this Deed of Trust
and the Note shall be construed as if such invalid, illegal or
unenforceable provision had never been contained in this Deed of
Trust or the Note.
17. Captions. The captions and headings in this Deed of
Trust are for convenience only and are not to be used to
interpret or define the provisions hereof.
18. Default; Remedies. Upon the Borrower's breach of any
covenant or agreement of the Borrower in this Deed of Trust,
including, but not limited to, the covenants to pay, when due,
any sums secured by this Deed of Trust, the City, prior to
acceleration, will send, in the manner set forth in Section 14 of
this Deed of Trust, notice to the Borrower specifying: CD ^t^p'sd
breach; (2) if the breach is curable, the action re^ijrafivtb cure
such breach; (3) a date, not less than thirtyp5§3t£) H3ays from the
date the notice is effective as set for^jfiW^e^iej^. 14 of this
Deed of Trust, by which such breach, if cur-a^C®MIS to b^ cured;
and (4) if the breach is curable, that rsrirlure to cure^such,,, -
breach on or before the date specified in the
in acceleration of the sums secured by this Dea<±"pTrust and
1010\02\104149.01 c ^-~~" //
sale of the Security. Notice shall be effective as of the date
shown on the delivery receipt as the date of delivery, the date
delivery was refused or the date the notice was returned as
undeliverable. The notice will also inform the Borrower of the
Borrower's right to reinstate after acceleration and the right to
bring a court action to assert the nonexistence of default or any
other defense of the Borrower to acceleration and sale. If the
breach is not curable or is not cured on or before the date
specified in the notice, the City, at the City's option, may:
(a) declare all of the sums secured by this Deed of Trust to be
immediately due and payable without further demand and may invoke
the power of sale and any other remedies permitted by California
law; (b) either in person or by agent, with or without bringing
any action or proceeding, or by a receiver appointed by a court,
and without regard to the adequacy of its security, enter upon
the Security and take possession thereof (or any part thereof)
and of any of the Security, in its own name or in the name of the
Trustee, and do any acts which it deems necessary or desirable to
preserve the value or marketability of the Security, or part
thereof or interest therein, increase the income therefrom or
protect the security thereof. The entering upon and taking
possession of the Security shall not cure or waive any breach
hereunder or invalidate any act done in response to such breach
and, notwithstanding the continuance in possession of the
Security, the City shall be entitled to exercise every right
provided for in this Deed of Trust, or by law upon occurrence of
any uncured breach, including the right to exercise the power of
sale; (c) commence an action to foreclose this Deed of Trust as a
mortgage, appoint a receiver, or specifically enforce any of the
covenants hereof; (d) deliver to the Trustee a written
declaration of default and demand for sale, pursuant to the
provisions for notice of sale found at California Civil Code
Sections 2924, e_L sejg. , as amended from time to time; or (e)
exercise all other rights and remedies provided herein, in the
instruments by which the Borrower acquires title to any Security,
or in any other document or agreement now or hereafter
evidencing, creating or securing all or any portion of the
obligations secured hereby, or provided by law.
The City shall be entitled to collect all reasonable costs
and expenses incurred in pursuing the remedies provided in this
paragraph, including, but not limited to, reasonable attorney's
fees.
19. Acceleration. Upon the occurrence of a default under
the Note, this Deed of Trust, the First Lender Note, or the First
Lender Deed of Trust, the City shall have the right to declare
the full amount of the principal along with any interest under
the Note immediately due and payable. Any failure by the
pursue its legal and equitable remedies upon default shalf!
constitute a waiver of the City's right to declaor^-jloile4!ault anc
exercise all of its rights under the Note an^\\€M£ Peed of True
Nor shall acceptance by the City of any (paymei^ fyfiwlded ^~ ' '
the Note constitute a waiver of the City' p*>g$.cffit' to requj
prompt payment of any remaining principalvand interest
1010\02\104149.01 ,-, ,---""""
20. Borrower's Right to Reinstate. Notwithstanding the
City's acceleration of the suras secured by this Deed of Trust,
the Borrower will have the right to have any proceedings begun by
the City to enforce this Deed of Trust discontinued at any time
prior to five (5) days before sale of the Security pursuant to
the power of sale contained in this Deed of Trust or at any time
prior to entry of a judgment enforcing this Deed of Trust if: (a)
the Borrower pays City all suras, if any, which would be then due
under this Deed of Trust and no acceleration under the Note has
occurred; (b) the Borrower cures all breaches of any other
covenants or agreements of the Borrower contained in this Deed of
Trust; (c) the Borrower pays all reasonable expenses incurred by
City and the Trustee in enforcing the covenants and agreements of
the Borrower contained in this Deed of Trust, and in enforcing
the City's and the Trustee's remedies, including, but not limited
to, reasonable attorney's fees; and (d) the Borrower takes such
action as City may reasonably require to assure that the lien of
this Deed of Trust, City's interest in the Security and the
Borrower's obligation to pay the sums secured by this Deed of
Trust shall continue unimpaired. Upon such payment and cure by
the Borrower, this Deed of Trust and the obligations secured
hereby will remain in full force and effect as if no acceleration
had occurred.
21. Reconveyance. Upon payment or forgiveness of all sums
secured by this Deed of Trust, the City will request the Trustee
to reconvey the Security and will surrender this Deed of Trust
and the Note to the Trustee. The Trustee will reconvey the
Security without warranty and without charge to the person or
persons legally entitled thereto. Such person or persons will
pay all costs of recordation, if any.
22. Substitute Trustee. The City, at the City's option,
may from time to time remove the Trustee and appoint a successor
trustee to any trustee appointed hereunder. The successor
trustee will succeed to all the title, power and duties conferred
upon the Trustee herein and by applicable law.
23. Subordination to First Mortgage. Notwithstanding any
other provision hereof, the provisions of this Deed of Trust
shall be subordinate to the lien of the First Lender Deed of
Trust and shall not impair the rights of the First Lender, or the
First Lender's successor or assign, to exercise its remedies
under the First Lender Deed of Trust in the event of default
under the First Lender Deed of Trust by the Borrower. Such
remedies under the First Lender Deed of Trust include the right
of foreclosure or acceptance of a deed or assignment in lieu of
foreclosure. After such foreclosure or acceptance of a deed or
assignment in lieu of foreclosure, this Deed of Trust shall be
forever terminated and shall have no further effect as
Property or any transferee thereafter; provided, howe^]^ ^ii^the
holder of such First Lender Deed of Trust acquir,^d\^rtl.e to
Property pursuant to a deed or assignment]
this Deed of Trust shall automatically terc^ifl-a^^-uVon sucl
acquisition of title, provided that (i) thW-city has
written notice of default under such First Lender Deed..9^"Trust
1010\02\104149.01 O "
arid (ii) the City shall not have cured or commenced to cure the
default within such 30-day period and given its firm commitment
to complete the cure in the form and substance acceptable to the
First Lender. Borrower agrees to record any necessary documents
to effect such termination, if applicable.
24. Attorney's Fees. If any action or proceeding is
brought to enforce this Deed of Trust or any provision of this
Deed of Trust or the Note, the prevailing party shall be entitled
to its attorney's fees and the cost of such action or proceeding.
IN WITNESS WHEREOF, the Borrower has executed this Deed of
Trust as of the date first written above.
Alia Litvin
(Print Name)
1010\02\104149.01
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On
) ss
199.1, before me, Jdp A .
personally appeared _
to me (or proved to me on the basis of satisfactory evidence)
personally known
to
be the person (s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity (ies) , and that by
his/her/their signature (s) on the instrument the person (s) or the
entity upon behalf of which the person (s) acted, executed the
instrument .
WITNESS my hand and official seal.
JODY A. HAYWARD
Comm. $1168552
NOTARY PUBLIC-CALIFORNIA
Orange County
My Comm. Expires Jan. 28,200?IIII D 11
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On
) ss
before me,
personally appeared A1JM Uifo'lfl , personally known
to me (or proved to me on the basis of satisfactory evidence) to
be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
JODY A. HAYWAfllP?
NOTARY PUBLIC-CALIFORNIA0'ange County
1010\02\104149.01
EXHIBIT A
Property Description
PARCEL 1:
Lot 166 of Carlsbad Tract No. 92-02 (A), in the City of Carlsbad, County of San Die'go,
State of California, according to Map thereof No. 13626 filed, in the office of the County
Recorder of San Diego County, September 8, 1998.
Excepting therefrom all remaining oil, oil rights, minerals, mineral rights, natural gas rights
and other hydrocarbons by whatsoever name known, geothermal stream and all products
derived from any of the foregoing, that may be within or under the parcel of property
hereinabove described, together with the perpetual right of drilling, mining, exploring and
operating therefor and storing in and removing the same from said property or any other
property, including the right whipstock or directionally drill and mine from properties other
than those hereinabove described, oil or gas wells, tunnels and shafts into, through or
across the subsurface of the property hereinabove described, and to bottom such
whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond
the exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen and
operate any such wells or mines without, however, the right to drill, mine, store, explore,
or operate through the surface of the upper 500 feet of the subsurface of the property
hereinabove described.
PARCEL 2:
Nonexclusive easements for use, ingress, egress, maintenance, landscape, repair, drainage,
support, encroachment, or other purposes, all as described and/or depict in the Declaration
of Restrictions, including, but not limited to, the sideyard easements depicted therein, if
any.
1010\02\104149.01