03-013 Community Housing Developers Subordination
SUBORDINATIO~J AGREEMENT
NOTICE: THIS SUBORDINATION AGREI=MENT RESULTS IN YOUR SECURITY
INTEREST IN THE PROPERTY BECOti11NG SUBJECT TO AND OF LOWER
PRIORITY THAN THE LIEN OF SOME OTHI.R OR LATER SECURITY INSTRUMENT.
THIS SUBORDINATION AGREEMENT (the: "Agreement") is made and entered into,
effective on the date set forth below, by and between the CITY OF CUPERTINO, a
chartered, municipal corporation ("City"), ~~OMMUNITY HOUSING DEVELOPERS,
INC., a California nonprofit corporation ("Eorrower"), and WASHINGTON MUTUAL
BANK ("WAMU") with reference to the following facts:
RECITALS
A. Borrower is the owner of the building and improvements (such building and
improvements hereinafter referred to ass the "Property") situated on that certain
parcel of real property located at 10192 & 10194 Beardon Drive, Cupertino,
California.
B. Borrower previously executed in favor of the City a Deed of Trust with assignment
of rents in the amount of$38~,s52.oo (the "City Deed of Trust") pursuant to the
terms and conditions of a Promiss~~ry Note and Deed of Trust recorded
concurrently herewith.
C. Concurrently with the execution of this ,4greement, Borrower is executing, in favor
of Washington Mutual Bank ("WAMU"), a promissory note (the "WAMU Note")
payable to WAMU in the aggregate principal amount of $9i4,~2s.oo, the proceeds
of which will be used to repay existing indebtedness secured by the Property.
D. The WAMU Note will be secured by a Deed of Trust and Assignment of Rents, and
Rider to Deed of Trust encumbering they Property (the "WAMU Deed of Trust") and
WAMU desires that the lien of the WAh~U Deed of Trust be unconditionally and at
all times prior and superior to the liens of and rights created in and evidenced by
the City Deed of Trust.
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E. The parties desire to enter into this Agreement to evidence the subordination of the
lien of and rights created in and evidenced by the City Deed of Trust to the lien of
the WAMU Deed of Trust.
AGREEIIAENTS
NOW, THEREFORE, the parties hereby agree as follows:
1. The WAMU Deed of Trust securing the WAMU Note and any modifications,
renewals or extensions thereof, and ~rny advances (including interest thereon)
thereunder or secured thereby, shall unconditionally be and remain at all times a
lien and charge on the Property, prior ar~d superior to the City Deed of Trust, to the
estate created thereby, to all loans, grants and advances of money made pursuant
thereto, and to all rights and privileges of City thereunder, and said City Deed of
Trust, and the estate created thereby, ar~d all loans, grants and advances of money
made pursuant thereto together with all rights and privileges of City thereunder, are
hereby subjected, and made subordin~rte, to the lien and charge of the WAMU
Deed of Trust. The subordination herein granted shall not apply to increases in the
principal amount of the WAMU Note beyond the original principal amount thereof.
2. This Agreement shall be the whole and only agreement among the parties hereto
with regard to the subordination of the City Deed of Trust, and the estate created
thereby, and all loans, grants and ad~iances of money made pursuant thereto,
together with all rights and privileges of City thereunder, to the lien and charge of
the WAMU Deed of Trust, and shall supersede and cancel any prior agreements to
subordinate the City Deed of Trust.
3. City declares, agrees, and acknowledges that:
a. It consents to and approves (i) all provisions of the WAMU Note and WAMU
Deed of Trust, and (ii) all agreements, including but not limited to any loan
agreement or other loan or escrow agreements between Borrower and WAMU
for the disbursement of the pr~~ceeds of the WAMU Loan, and City
acknowledges receipt of copies thereof; and
b. WAMU in making disbursement pursuant to any such agreement is under no
obligation or duty to, nor has WAMU represented that it will, see to the
application of such proceeds by the person or persons to whom WAMU
disburses such proceeds, and an~~ 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. It intentionally and uncondition~illy waives, relinquishes, subjects and
subordinates its interests under the City Deed of Trust, and the estate created
thereby, and all loans, grants, ar~d advances of money pursuant thereto,
together with all rights and privileges of City thereunder, in favor of the lien and
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charge upon the Property of the WAMU Deed of Trust, and understands that in
reliance upon, and in consideration of, this waiver, relinquishment, subjection,
and subordination specific loans and advances are being and will be made
and, as part and parcel thereof s~~ecific 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, subjection and subordination.
4. In consideration of City's covenants and agreements contained in this Agreement,
WAMU hereby agrees, but only as a se~~arate and independent covenant of WAMU
and not as a condition to the continued effectiveness of the covenants and
agreements of the Borrower and City as set forth herein, as follows:
a. In the event of any default by Borrower under the WAMU Note or WAMU Deed
of Trust, WAMU agrees that City ~~hall be entitled to receive a copy of any
notice or default to Borrower given by WAMU under the WAMU Deed of Trust
contemporaneously with Borrower'~~ receipt of the same, and that City shall
have the right to cure such default within a time equal to the time allotted to
Borrower to cure such default, plus 1ten (10) days.
b. In the event the City acquires title to the Property from Borrower pursuant to
any provision of the City Deed of Trust or documents executed pursuant
thereto, City may assume and succeed to Borrower's obligation under the
WAMU loan without acceleration of the WAMU Loan by WAMU, and WAMU
will recognize City as Borrower, orr condition that City assume and agree to
perform all of Borrower's obligation; under the WAMU Loan and timely cure all
outstanding defaults of Borrower under the WAMU Loan in writing in form and
substance satisfactory to WAMU, and pay the reasonable administrative
and/or legal costs WAMU may actually incur in connection with such
assumption and succession.
c. WAMU agrees to negotiate with City in the event that Borrower defaults under
either the WAMU Loan or the City Deed of Trust; provided, however, that
nothing in this subparagraph 4.c. shall obligate the parties to reach an
agreement upon the conclusion or termination of negotiations, or to extend the
time granted to Borrower under the WAMU Loan documents or City under this
subparagraph 4.c. to cure defaults under WAMU's Loan documents.
5. This Agreement shall be binding on and inure to the benefit of the legal
representatives, heirs, successors and assigns of the parties.
6. This Agreement may be signed by different parties hereto in counterparts with the
same effect as if the signatures to each counterpart were upon a single instrument.
All counterparts shall be deemed an original of the Agreement.
7. This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
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8. City acknowledges that WAMU's addre:;s for purposes of receiving notice to which
it is entitled under this Agreement is as fi~llows:
Washington Mutual Bank
17877 Von Karman Avenue, 4tr' Floor
Irvine, CA 92614-6213
Attn: Jane Screen
9. WAMU acknowledges that City's addre~:s for purposes of receiving notice to which
it is entitled under this agreement is as fi~llows:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
10. Each of the parties hereto will, whenever and as often as they shall be requested to
do so by the other, execute, acknowledge, and deliver, or cause to be executed,
acknowledged or delivered, any and all :such further instruments and documents as
may be reasonably necessary to carry out the intent and purpose of this
agreement, and to do any and all further acts reasonably necessary to carry out the
intent and purpose of this Agreement.
11. Each person executing this Agreement on behalf of a party hereto represents and
warrants that such person is duly and v,slidly authorized to do so on behalf of such
party with full right and authority to execute this Agreement and to bind such party
with respect to all of its obligations hereunder.
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File No. 11010169-286-B JOE
SCHEDULE "A"
LEGAL DESCRIPTION
All that certain real property situate in the City- oECupertino, County of Santa Clara, State of California,
described as follows:
PARCEL ONE:
Lot 7, as shown on that certain Map of Tract No. 3061, which Map was filed for record in the office of
the Recorder of the County of Santa Clara, State of California on November 29, 1961, in Book 140 of
Maps, page(s) 44.
PARCEL TWO:
A non-exclusive Easement for driveway purposes over the Westerly 15 feet of Lots 9, 10 and 11 and
over the Easterly I S feet of Lots 6 and 8, as said Lots and Easements are shown on the Map of Tract No.
3061. Stevens Creek Park, filed November 20; 1 X61 in Book 140 of Maps, page 44, Santa Clara County
Records.
ARB No: 326-32-22
APN No: 326-32-022
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of ~~~"~-Gq ~~ G,~~
On N ir'V ~ ~~ . ~~C ~ before me, ~~~~ ~~~' ~+r~tl~ ~ ~N ~-t-znl~'~ ~Gi~al rf
Date Name and Tdle of Officer (e.g.. "Jane Doe, olary Public")
personally appeared _ ~~~ 1 G:G K--~1 ~ ~:~ ,
Name(s) o Sign (s)
personally known to me
^ proved to me on the basis of satisfactory
evidence
KAREN A BERNARD
Commission # 1329267 Z
z y Notary Public -California ~
Z Santa Clara Coun~
My Comm. Expires Nov 9, 2005
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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.
y? t~ - i.
Signature of Notary Public
OPTIONAL
Though the information below is not required bylaw, it may prove valuable fo persons relying on the document and could prevent
fraudulent removal and reattachmen 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
Signer's Name:
[-~ Individual
^ Corporate Officer -Title(s):
^ Partner - ^ Limited ^ General
I-~ Attorney-in-Fact
^ Trustee
^ Guardian or Conservator
t:~ Other:
Number of Pages:
Signer Is Representing:
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~ 7999 National Notary Association • 9350 De Sato Ave., P.O. Box 2402 • Chatsworth, CA 91313-2405. • www.nationalnotary.org Prod. No. 5907 Reorder Call Toll-Free t-800-876-6827
STATE OF CALIFORNIA )
ss.
COUNTY OF O rQl.+'1 cL G )
On I~p t~~nb~/ ~~, X061,. before me c~sa h ~ i n t a not ublic in and
for said state, personally appeared tea.. v~ ~c 1iJ • .s c_r ~c__tJ personally
known to me ( be the persor~~ whose
name is/tee- subscribed to the within instrument and acknowledged to me that j e/~
executed the same in his/l~~#~a~-authorized capacities, and that by hisfker/thetr signatu~ on
the instrument the person, or the entity upon behalf of which the persor~acted, executed the
instrument.
WITNESS my hand and official seal.
._
Notary Public
~OSANN~ PINEOC~iAWgNS~
Comrritssion #~ 1026587 Z
~ ,~lotvy Public - ~:alifamia ~
,dY:.cynnaTS. Eic~irea .+cr.1, 20ai
STATE OF CALIFORNIA
COUNTY OF Santa Clara
On November 5, 2002 before me,
Joette
a Notary Public in and for said County and State, personally appeared
***RONALD P. MORGAN***
personally known to me ( ~ ~ fae-teFq'
euideflte) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/sk~ektiey executed
the same in his/herli4ieic- authorized capacity(ies) and ttlat by
his/t'rc;;~r signature(s) on the instrument the person(s), or thE: entity
upon behalf of which the person(s), acted, executed the instrumf>nt.
WITNESS m hand and official s -
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