2004-944952
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12671
001 2004-0944952
11111111111111111 11111111111111111111111111111111111111111111111111
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RECORDING REQUESTED BY , _/
.6~ ~~~~c~~~~n Avenue f'3
(~"7~~,cinitas, California 92024 ~ f
'-' I <.Y: AND WHEN RECORDED MAIL TO &/~
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City of Encinitas N r
505 South Vulcan Avenue
Encinitas, California 92024
(yq¡y:d-. if: 2~- &73 ¡;¿tj
'-1m SUBORDINATION AGREEMENT
/1- 'fIJ'I
~ NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT
TO AND Of LOWER PRIORITY THAN THE RIGHT-Of-WAY INTEREST REfERENCED HEREIN.
OCT 05, 2004
12:22 PM
OFFICIAL RECORDS
S,6.N DIEGO COUNTY RECORDER'S OFFICE
GREGOR'(,J SMITH, COUNTY RECORDER
FEES: 0.00
PAGES 6
IIHIII DIll DIll HI/lilli/Hili Dill 011111/1 II OW IIIIIIDI
2004-0944952
THIS SUBORDINATION AGREEMENT is made this August 17, 2004 day of August, 2004, by and between M&M Development, LLC, a California limited
liability company, owner of the land hereinafter described and hereinafter referred to as "Owner," the City of Encinitas, á California municipal corporation,
hereinafter referred to as the "City: and Discovery Bank, a California Corporation, present owner and holder of the deed of trust hereinafter described and
hereinafter referred to as "Beneficiary":
WITN ESS ETH
. THAT WHEREAS, Owner is the owner of certain real property descriDecf as 36f6Manchesfer Avenue, Encinitas, California, Assessor's Parcel
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 executed and delivered a certain Deed of Trust dated August 9, 2004, to Discovery Bank, as trustee, covering the Property to
secure a note in the original principal amount of $3,600,000, dated August 9, 2004 in favor of Beneficiary, which deed of trust was recorded August 11, 2004, as
Instrument No. 2004-0760223 of the official records of San Diego County, California (the "Deed of Trust"). The Deed ofTrust is a first mortgage lien against the
Property; and
WHEREAS, Owner is entering into a settlement agreement with the City. As part of that settlement agreement, the City will acquire a right-of-way
interest 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 settlement, that Beneficiary subordinate the lien
of its Deed of Trust to the proposed right-of-way interest. Beneficiary has indicated a desire to grant such a subordination subject to the terms and conditions
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
shall include the right-of-way interest; and Beneficiary is willing that the right-of-way interest shall, when recorded, constitute a charge upon the Property which
is prior and superior to the lien of the Deed of Trust provided that Owner and the City comply with the conditions set forth below.
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NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the
.eceiPt and sufficiency of which consideration is hereby acknowledged, and in order to induce the City to enter into the settlement agreement above referred to,
it is hereby dedared, understood and agreed as follows:
(1) That said right-of-way interest in favor of the City shall be and remain at all times a charge on the Property prior and superior to the lien of the
Beneficiary's Deed of Trust. Beneficiary hereby waives, relinquishes and subordinates the lien of its Deed of Trust in favor ofthe charge upon said Property of
the City's right-of-way interest, and Beneficiary understands that in reliance upon, and in consideration of, this waiver, 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.
(2) That the City would not enter into the referenced settlement agreement with Owner without this subordination agreement.
(3) That Owner and the City hereby covenant and agree as follows:
(1)
The tenns ofthe right-of-way interest shall not be modified without the prior written consent
of Beneficiary;
(2)
This subordination agreement applies only to that portion ofthe Property covering the right-
of-way interest being granted by Owner to the City and does not in any way affect
Beneficiary's first lien position on the remainder of the Property; and
Owner and the City hereby acknowledge and agree that the subordination of Beneficiary's
Deed of Trust is made in consideration of and in reliance upon the conditions and tenns set
.
(3)
forth in this paragraph (3), which subordination would not be made or be effective but for the
agreement of Owner and the City to comply with such conditions and tenns,
(4) That this agreement shall be the whole and only agreement between the parties hereto with regard to the
subordination ofthe lien ofthe Deed of Trust to the right-of-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 to, those
provisions, if any, contained in the Deed of Trust, which provide for the subordination of the lien thereof to a
subsequently recorded lien or charge on the Property,
Beneficiary declares, agrees ands acknowledges that:
(a) Beneficiary consents to and approves the tenns of the right-of-way interest granted by Owner to the
City as part ofthe above-referenced settlement agreement; and
.
(b) Beneficiary intentionally and unconditionally waives, relinquishes and subordinates the lien of its
Deed of Trust in favor of the charge upon said Property as a result ofthe right-of-way interest granted to the city by
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, Owner, and Beneficiary understands that in reliance upon, and in consideration of, this waiver, relinquishment and
.ubordination, 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 Califomia limited liability company
By ~O, j~
Name: Gf-OFP¡zgy c>. M..fJlXS
Title: Lfd.ðAJ,fG--r'AJ[~ AA EM 8£~
(Print Name and Title)
BENEFICIARY
Discovery Bank,
a California Corporation
.
Name: Stan lev M. Cruse
Title: Executive Vice President/Chief Credit Officer
(Print Name and Title)
CITY
The City of Encinitas,
a California municipal corporation
BY-/ /-Lll ~
Name: -r-< 1!2. "":1 l. ,"l; \ \ e. r
Title: - ~r
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, STATÊ OF CALIFORNIA
.COUNTY OF S 1>..,\ \)"e,c.
On f'V ")\J:; \- ~Ol:t\)C ~ before me,
personally appeared ,,~~,çf~, O. J-\.W\S
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person~ whose name(1)~ subscribed to the within instrument
and acknowledged to me tha~~/th'-y executed the same ir@1~th}¡ar authorized capacity(i~), and that b@_r/th~ir signature(~ on the instrument
the person~), or the entity upon behalf of which the person~ acted, executed the instrument.
}SS.
\(o~er~ f"\. \J,,~\\ , 00\"'" Fv~iv
.
WITNESS my hand and official seal.
Signature
W~^-4
@ ROBERT M. NEILL
ï. Commission # 1296654
t'" NOlory Public - California f
Son Diego County ~
- - - -M(~~~a:~
(This area for official notarial seal)
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, STATE OF CALlFO~~A '"
.OUNTY OF ~~ <tP } 55.
On 011.. Q.~ ll, acoW- before me, '-- ~ R ~b(y"\ .
personally appeared ~ 'YY\. ~
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(Gare subscribed to the within instrument
and acknowledged to me tháil};fshe/they executed the same in his/her/their authorized capacity(ies), and that ~er/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.
&~~L
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JEAN R. JOHNSON
1 a Commission # 1295962 z
~ . . Notary Pubßc - California ~
) . Son Dleg 0 County i
M¡ Comm. &pRs Mar31.:ms
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(This area for official notarial seal)
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1t>'7{)
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STAT'E OF CALIFORNIA
.COUNTYOF
On
personally appeared
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.
}SS.
before me,
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
(AlL SIGNATURES MUST BE ACKNOWLEDGED)
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION AGREEMENT, THE PARTIES CONSULT WITH
THEIR ATTORNEYS WITH RESPECT THERETO
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(CLTASUBORDINATION FORM nAn)
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