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2004-944951 HU~ 11 U~ IO:24p " Susan Leonard 8 D°l 2004-0944951 '11111111 11111111 111111111111111111111111111111111111111111111111 , , RECORDING REQUESTED BY OCT 05, 2004 12:22 PM . City of Encinilas 505 South Vulcan Avenue Encinitas, California 92024 (l£ liP J CtJr1 l'(~ Ljrfl SUBORDINATION AGREEMENT II f tI/ NOTICE' THIS SUBORDINATION AGREEMENT RESULTS IN YOUR LEASE INTEREST IN THE PROPERTY BECOMING SUBJECT #' TO AND OF LOWER PRIORITY THAN THE RIqHT -OF-WAY INTEREST REFERENCED HEREIN. AII/D WHEN RECORDED MAIL TO OFFICIAL RECORDS ::;AN DIEGO COUNTY RECORDER'S OFFICE GREGOR'(,J SMITH, COUNTY RECORDER FEES 0.00 PAGES 6 City Clerk City of Encinltas 505 South Vulcan Avenue Encinitas, CaHfomia 92024 ;¡~;2-cf)73 'AJf ~QÔ~ "\ . II~~II~~II~Iß~UII 2004-0944951 THIS SUBORDINATION AGREEMENT Is made this J 1 Au.3 ?€Jot( day of August, 2004, by and betweer;~.~ B.._~,-.. bLC, a California Hmited fiabilitycompany, owner of the land hereinafterdescribecl and hereinafter referred tOIlS "Owner," the City of Encinitas, a Califomia municipal corpcntion, hereinafter referred to as the .City,. and Encinitas Country Day School, yx:.,'a California COrporation, present holder and tenant otthe lease hereinafter described. Encinilas Country Day School, Inc. is hereinafter referred to as "Leaseholder." WITH ESSETH . THATWHEAEAS. Owneris theownerof certain real property described as 3616 Manchester Avenue, Encinitas, Cafifomia, Assessor's Parcei Number 262.073-24, with the following legal description: "IN THE NORTH HALF OF THE NWQ, SECTION 25 TOWNSHIP 13 SOUTH, RANGE 4 WEST, ACREAGE 19.35 NON-IRRIGATED RURAL LAND" in the County of San DIego, State of California (the .Property"); and WHEREAS, Owner and Leaseholder eKeCuted a Lease dated June 28. 2004, pursuant to which Owner as landlord and Leaseholder as tenant entered into a leaseI1o1d arrangement regarding the Property (the "Lease"). On July 2, 2004, a Memorandum of Lease was recorded, as Instrument No. 2Oi)4.()624934 of the offICial records of San Diego County, Califomia. Said Memorandum of lease provided constructive notice of Leaseholder's rights under the Lease; and WHEREAS, Ownerisentering into a settlement agreement with the City. As part of that settlement agreement, the City will acquire a rlght-of.wayinterest in a portion of the Property. Owner is willing to grant such a right-of..way interest to the City and the City is willing to accept such a right-of..way interest from Owner as part of the settlement between the parties; and WHEREAS, the City requires, as condition of accepting the right-of-way interest and entering into the seItJement, that Leaseholder subordinate its Lease to the proposed right-of-way interest. Leaseholder has indicaled a desire to grant such a subordination subject to the terms and condilions set forth herein; and WHEREAS, it is to the mutual benefit of the parties hereto that the City enter into the settlement agreement with Owner, which settlement agreement shal include the right-of-way interest; and Leaseholder is willing that the right-of-way interest shall, When recorded, CGI'1SIitute a charge upon the Property which is prior and superior to the Lease provided that Owner and the CIty comply with the conditions set forth below. . 4815-5383-3472.1 1 HU~ 11 o~ 10:25p " Susan Leonard 858 756 4072 p.3 8 8126~~ " ..---- . and suffICiency of Which consIderation is hereby acknowledged, and in order to induce the City to enter into the setttement agreement above referred to, it is hereby declared, undeJstood and agreed as follows: NOW, THEREFORE, in consideration of the mutual beneflls accruing to the parties hereto and other valuable consideration, the receipt (1) That said right-of-way interest in favor of the City shall be and remain at aU times a charge on the Property prior and superior to Lllllsehoider's Lease. Leaseholder hereby waives. relinquishes and subordinates the Lease in favor of the charge upon said Property of the City's right-of-way interest, and Leaseholder understands that in reliance upon, and In consideration of, this waiver. relinquishment and subordination, the City and OWner are entering into the abcMt-reference settlement agreement, whIch agreement would not be entered into but for said reliance upon this waiver. relinquishment and subordination. (2) That the City would not enter into the referenced setUement agreement with Owner without this subordination agreement. (3) That Owner and the City hereby covenant and agree as follows: (Q (ii) The terms of the right~f-way interest shall not be modified without the prior wrlten consent of Leaseholder; This subordination agreement applies only to that portion of the Property covering the right~f-way interest being granted by Owner to the City and does not in any way affect Leaseholder's position on the remainder of the Property; and Owner and the City hereby acknowledge and agree that the subordination of Leaseholder's Lease is made In consideration of and in reliance upon the conditions and terms set forth in this paragraph (3), which subordination would not be IT1IIde or be effective but for the agreement of Owner and the City to comply with such conditions and tenns. (iii) (4) That this agræment shall be the whole and only agreement between the parties hereto with regard to the subordination ofthe Lease to the right~f-way interest being granted by Owner to the City and shall supersede and cancel any prIor agreements as to such, or any, subordination including, but not limited 10, thoseprovisions, if any, contained in the Lease, which prcMde forthe subordination of the Lease thereof to a subsequentJyrecorded lien or charge on the PropeIty. . Leaseholder declares. agrees ands acknowledges that: (a) Leaseholder consents to and apprOWlS the terms of the right-d-way interest gf3f1ted by OWner to (he City as part of the aboYe-n!ferenced settlement agreement; and (b) Leaseholder intentionally and uncond1tionaliy waives, relinquishes and subordinates its Lease in favor of the charge upon said Property as a result of the right-of-way interest granted to the City by Owner, and Leaseholder understands that In reliance upon, and in consideration of, this waJver, relinquishment and subordination, the City and Owner are entering into the above-referenced settlement agreement, Which agreement would not be entered into but for said reliance upon this waiver, relinquishment and subordination. OWNER M&M Development, LLC, a California limited Dability company B, ~f/' Æo, ~ Name:jiß)FFN:.Y 0, MILVJÇ Title: ~c.:.TN'~ M~M ß~f\ (Print Name and Title) . 4815-5383-3472.1 2 . . . - nu~ 11 U~ lU:~5p .' Susan Leonard 8 . , LEASEHOLDER Encinitas Coootry Day School, a CalifomJa corporation .J~ v9-d :e7 K¿~ ~~ . -e.-~ (Print Name and Titre) CITY The City of Encinilas, a California municipal corporation 8y~þ/ /L~ .-. ~~... ~'f ..\l Q ..- Tille. , I ~<:2. \ (Print Name nd Title) 4815-5383-3472.1 858 756 4072 p.4 . .8 \2ßt)1 3 . . . Au~ 11 04 10:25p " Susan Leonard 858 756 4072 p.5 8 1.2668 8 '. STATE OF CALIFORNIA COUNTYOF S~" Otf'j~ } SS. On ~V,.)\ \1 j ~OO~ bpforeme, Ro~J' \ M. \J~~\\ I ""'O~"'J.., ¡v~\t(' .pen¡onay appeared \(. 1\. \'0 r h r ç \t.. \ ð personatly known to me (or proved to me on the basis of satisfactory evidence) to be the ~Whose na~ to the within instrument and acknowledged to me that AeJ~)(ecuted the same in hislherJlheir authorized capacltY~nd that by h~natu~ the instrument the pensor@)ortheentity upon behalf of which the perso'0acted, executed the instrument. WITNESS my hand and official seal. Signatwe j4LJ t.-\ ~ ¡-----------~J 'i ROBERT M. NEIll Commission # 1296654 z i' Notary Public - California ~ j Son Diego County f My Comm. Expires Wa 20. 2D5 ------------- (This IItea for official notarial seal) 4815-5383-3472.1 4 . " . . . Au~ 11 04 10:25p , Susan Leonard B5B 756 4072 p.6 8 8 . . 12ô69 . STATE OF CALIFORNIA COUNTY OF S~" \)\~O } SS. On ~v,'JJ\ ~,&O\)~ beforeme,Jo~\ t'\. \..1t.\\ I t.)o~)' f..\'\u .peISOI1i1Iy appeared &-qO~t...., Ö. ~~\S peI'SOnalfyknown to me (or prcNed to me on the basis of satisfactory evidence) to be the person~ whose na~~}w subscribed to the within instrument and acknowledged 10 me th~~ executed the same i.,-Itt¥' authorized capacj~), and that b~h"'t Signatu~ on the Insln.ment the person(W, or the entity upon behalf of which the ~ acted, executed the instrument. wrrNESS my hand and offICial seal. ~ture~ M ~ ø ROBERT M. NEill - . I . Commission 1# 1296654 I /W Notory Public - Ca"'omla f r Son Diego CowIty ~ 1 My Canm. &pies Maa:1. axJ5 . ---------- (This area for offICial notarial seal) 4815-5383-3472. I 5 , , . . . Au~ 1104 10:25p , Susan Leonard 858 756 4072 p.7 8 . 8 1~ß1l) --....... " . STATE OF CALIFORNIA COUNTY OF ¡55. On before me. , JIIrIJ(naI'f appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed to the Wilhin instrument and acknOWledged to me that he/sheithey executed the same in hislherllheir authoriZed capacity(les), and that by hislherltheir signature(s) on the instrument the person(s), or the entity upon behalf of Which the pI!f8On{s) acIed, executed the instrument. WITNESS my hand and official seal. Signature (This area for offICial notarial seaQ (ALl SIGNATURES MUST BE ACKNOWLEDGEO) IT IS R£CoMMENDED THAT, PRIOR TO THE EXECUTJON OF THIS SUBORDINATION AGREEMENT, THE PARTIES CONSULT WITH THErR ATTORNEYS WITH RESPecT THERETO (CL TA SUBORDINATION FORM "A") 4815-5383-3472.1 6