Subordination Agreement 2007-0625820
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RECORDING REQUESTED, BY
FIRSTAMERICAN TITLE
National Commercial ServIces THE ORIGINAL OF THIS DOCUMEN-r
lib WAS' RECORDED ON SEP 25.2007
DOCUMENT NUMBER 2007-0625820
RECORDING REQUESTED BY GREGORY J. SMITH. COUNTY RECORDER
AND WHEN RECORDED, MAIL TO: SAN DIEGO COUNTY RECORDER'S OFFICE
TIME. 4;34 PM
FIRST REGIONAL BANK
970 West 190th Street, Suite 400
Torrance, California 90502
Attention: Deborah Fennell
Assessor's Parcel No(s). 323-481-18-00
~lC S. ~b"S
SUBORDINATION AGREEMENT
NOTICE. THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY
INTEREST IN THE PROPERTY BECOMING SUBJECTTO AND OF LOWER PRIORITY
THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT
This Subordination Agreement (this "Agreement"), dated for reference purposes as of the
20th day of September, 2007, is among OCEAN PARK HOTELS - PWY, LLC, a California
limited liability company ("Borrower"), POWA Y REDEVELOPMENT AGENCY, a public
body, corporate and politic ("Subordinate Lender"), and FIRST REGIONAL BANK, a
California banking corporation ("Senior Lender").
RECITALS
A. Senior Lender has agreed to make a loan to Borrower in the original principal
amount of Eleven Million Seven Hundred Forty-Five Thousand and No/100 Dollars
(SII,745,OOO.00) (the "Senior Loan"). The Senior Loan is evidenced by, among other things,
that certain Construction Loan Agreement between Borrower and ~enior Lender dated as of
September 20, 2007 ("Loan Agreement"), and a Promissory Note dated as of September 20,
2007 ("Promissory Note"), and is secured by, among other things, a Construction Deed of Trust
(the "Senior Deed of Trust"), executed by Borrower in favor of Senior Lendcr and dated as of
Scptember 20, 2007, to be recorded concurrently herewith in the Official Records of San Diego
County, California. The real property encumbered by the Senior Deed of Trust is legally
described in Exhibit A attached. hereto ("Property"). The Loan Agreement, Promissory Note,
Senior Deed of Trust, and each of the other agreements, security agreements, instruments, and/or
other documents executed in connection with the Loan (individually and collectively, "Senior
Loan Documents"), which are listed in Exhibit "B" attached hereto.
B Subordinate Lender has agreed to make a loan to Borrower in the original
principal amount of $1,585,000.00 (the "Subordinate Loan"). The Subordinate Loan is
cvidenced by, among other documents, a promissory note dated as of August 10, 2007 (the
"Subordinate Note"), and is secured by a deed of trust dated, as of August 10, 2007 (the
"Subordinate Deed of Trust"), to be recorded concurrently herewith in the Official Records of
San Diego County, California. The Subordinate Note, Subordinate Deed of Trust and all other
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doc~ments evidencing or securing the Subordinate Loan, are referred to herein collectively as the
"Subordinate Loan Documents."
C. As a condition precedent to the making of che Senior Loan, Senior Lender has
required Subordinate Lender to subordinate the lien of the Subordinate Deed of Trust to the lien
of che Senior Deed of Trust, and to subordinate Subordinate Lender's right to receive any
payment under the Subordinate Loan Documents to Senior Lender's right to receive payment of
the indebtedness secured by the Senior Loan Documents on the terms and conditions set forth
below
NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS
I Subordination.
1.1 Lien Subordination. Subordinate Lender intentionally and unconditionally
subordinates the lien of the Subordinate Deed of Trust and .all of Subordinate Lender's rights,
remedies, and privileges thereunder and under the Subordinate Loan Documents to the Senior
Deed of Trust and all of Senior Lender's rights, remedies and privileges.thereunder and under the
Senior LoanDocuments. Nothing contained in the Subordinate.Loan Documents shall operate to
defeat, render invalid or impair the rights or liens of Senior Lender under the Senior Deed of
Trust and the other Senior Loan Documents.
1.2 Pavment Subordination. Subordinate Lender agrees that its right to
receive payments from Borrower or.any guarantor of any amount then due under the Subordinate
Loan Documents ("Subordinate Indebtedness") shall be subordinated to Senior Lender's right to
receive payments from Borrower or any guarantor then due under the Senior Loan Documents
("Senior Indebtedness").
(a) Except as provided in this Section 1.2(a) herein, subsequent to the
date hereof, BOITower shall not pay and Subordinate Lender will not demand or
accept payment of any interest, principal or any other amounts (however
characterized) in respect of the Subordinate Loan or receive any prepayments of
the Subordinate Loan until all monies due from Borrower pursuant to the Senior
Loan Documents shall have been paid in full. Notwithstanding the foregoing, as
long as Subordinate Lender has not received any written notice of default under
the Senior Loan Documents, or, in the event there has been a written notice of
default, at any time after the cure Of such default and so long as Subordinate
Lender does not receive any other written notice of default, Subordinate Lender
shall be entitled to receive and collect any regularly scheduled interest payments,
principal payments and other payments required to be made by Borrower under
the Subordinate Loan Documents. During the pendency of an event of default
under the Senior Loan Documents that is curable by the payment of money (each,
a "Monetary Default"), and upon delivery of written notice thereof by Senior
Lender to Subordinate Lender of such Monetary Default, and subject to the
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express provisions in this:Section, Borrower shall not. pay and Subordinate Lender
will'nol.demand or accept payment of any interest; principal or any other amounts
(however characterized) in respect of the Subordinate Loan prior to the cure of the
Monetary Default under the Senior Loan, without ~he prior written consent of
Senior Lender, whiCh Senior Lender may give or withhold in its sole discretion.
In the event that Subordinate Lender receives any payment in violation of this
paragraph, it shall hold such payment in trust for the benefit of Senior Lender and
promptly deliver such payment to Senior Lender. Subordinate Lender shall be
entitled, but not obligated, to cure any event of default of Borrower under the
Senior Loan DocUments that is curable in order to protect Subordinate Lender's
security or for any other purpose, as more particularly set forth in Section 1.2(c)
below
(b) Subsequent to any event of default by Borrower under the
Subordinate Loan Documents, Subordinate Lender shall not take any of the
following actions without Senior Lender's prior written consent: (i) the exercise
of any of its rights or remedies under the Subordinate Loan Documents (ex~ept
advising Borrower it is in default under the Subordinate Loan Documents,
accruing interest at the default rate under the Subordinate Loan Documents and,
in emergency situations, making advances or taking other actions reasonably
necessary to preserve and protect the Property), including without limitation, (I)
any action or proceeding for the appointment of a receiver or other action to
divest Borrower of possession, management and/or control of the Property or any
portion thereof or any interest therein, including without limitation, any rents,
issues, profits, revenues or proceeds (including without limitation, insurance
proceeds andlor condemnation proceeds) of the Property or any improvements
thereon, (2) the commencement of a court action to foreclose the Subordinate
Deed of Trust or to enforce any of the provi~ions thereof, (3) the commencement
of proceedings for sale of the Property or any portion thereof under the power of
sale granted by the Subordinate Deed of Trust, or (4) the acceptance of a deed in
lieu of foreclosure from Borrower or any of Borrower's successors or assigns; or
(ii) the exercise of any other rights or remedies available at law or in equity, with
respect to the Property, including without limitation any rights of subrogation to
the rights of Borrower with respect to the Senior Deed of Trust or the other Senior
Loan Documents andlor the Property, except as otherwise provided herein.
(c) Subordinate Lender shall have the following rights upon an event
of default under the Senior Loan Documents ("Senior Loan Default"):
(i) Subordinate Lender shall have the right to cure any Senior
Loan Default which is a monetary default (a) by payment of the amounts
due to cure such default within ten (10) days after notice from Senior
Lender to Subordinate Lender of the existence of the default or (b) if
Senior Lender has recorded a Notice of Default and Election to Sell, by
paying .the amount necessary under law to reinstatc the Senior Loan within
the time provided by law
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(ii) Subordinate Lender shall have the right to cure any Senior
Loan Default which is a non-monetary default within ten (10) days after
written' notice from Senior Lender of the existence of the default. The
provisions.ofthis subparagraph 1.2(c)(ii) shall not modify or abrogate the
provisions of Section 1.2(b), above; provided, however, in the event such
non-monetary default is of such a nature that it cannot reasonably be cured
within such ten (10) day period, and during such period of time,
Subordinate Lender has commenced the cure of such non-monetary
default and is diligently prosecuting the cure of the non-monetary default
to completion, Subordinate Lender shall have up to an additional twenty
(20) days to, complete the cure.
(d) Subordinate Lender shall from time to time, upon not more than
ten (10) days prior written request, execute and deliver in recordable form, such
additional documents or instruments as Senior Lender may require in order to
further evidence and confirm the subordinations provided for in this Agreement.
Subordinate Lender shall also make a notation to the Subordinate Note sCaCing that
it is subject to the terms of this Agreement.
(e) Subordinate Lender shall provide Senior Lender notice of any
default under the Subordinate Loan Documents contemporaneously with the
providing of notice by Subordinate Lender to Borrower of such default, if
required to so provide such notice to Borrower Additionally, if Subordinate
Lender is not required to provide such notice to Borrower, Subordinate Lender
shall provide notice to Senior Lender in the event Subordinate Lender has
declared a default in writing under the Subordinate Loan Documents at or about
the time Subordinate Lender does so.
(t) Senior Lender shall provide Subordinate Lender notice of any
default under the Senior Loan Documents contemporaneously with the providing
of notice by Senior Lender to Borrower of such default, if required to so provide
such notice to Borrower Additionally, if Senior Lender is not required to provide
such notice to Borrower, Senior Lender shall provide notice to Subordinate
Lender in the event Senior Lender has declared a default under the Senior Loan
Documents at or about the time Senior Lender does so.
(g) Subordinate Lender shall have the right (but not the obligation) to
cure any default by Borrower under the Senior Loan Documents, and Senior
Lender shall (a) accept performance by Subordinate Lender as if such
performance were tendered by Borrower, and (b) not accelerate the Senior Loan
by reason thereof, so long as Subordinate Lender cures such default in the time
periods specified above. Notwithstanding the foregoing, and anything else in this
Agreement to the contrary, Senior Lender shall not be required to give prior
written notice to Subordinate Lender or an opportunity to cure any monetary or
non-monetary default under the Senior Loan Documents in the event, and then
only to the extent that Senior Lender believes that an emergency exists and action
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is required to be taken on the part of Senior Lender in order to preserve or protect
the security of the Senior Loan from immediate damage.
1.3 Modifications of Senior Loan. Subordinate Lender's agreement to
subordinate the Subordinate Loan Documents and the liens created thereunder shall
automatically apply to any and all addiCional advances, extensions, amendments or other
modifications of the Senior Loan Documents or Senior Deed of Trust, except for any
amendments or modifications that constitute or contain any "Subordinate Reviewable
Modifications," as defined below.
(a) The following modifieations to the Senior Loan Documents or
Senior Deed of Trust shall constitute "Subordinate Reviewable Modifications,"
and, as a condition of Subordinate Lender's subordination to such modifications
shall require the written agreement of Subordinate Lender to subordinate the
Subordinate Loan Documents and the liens created thereunder to the Senior Loan
Documents and Senior Deed of Trust, as so modified:
(i) shortening the maturity date of the Senior Loan (other than
an election to accelerate upon default);
(ii) increasing the principal amount of the Senior Loan to an
amount in excess of $13,421,227.00, except if the principal amount is
increased as a result of advances made by Senior Lender to preserve or
protect the security for the Senior Loan from-immediate damage;
(Iii) increasing the interest rate charged under the Loan (the
"Note Rate") (other than an increase to (i) the Note Rate due to an increase
in the variable, index raCe to which the Note Rate is tied, and (ii) a default
rate and imposition of late charges after default as provided under the
Senior Loan Documents);
(iv) eliminating or curtailing the terms of any notice or cure
period afforded to Borrower under the Senior Loan Documents;
(-) adding any provisions, in addition to the eXlstmg
provisions, to cross-default or cross-collateralize the Senior Loan with any
other loan that has been or is made by Senior Lender with respect to
matters unrelaced to the Property; and
(vi) any modification that materially adversely affects the rights
of the Subordinate Lender beyond the rights affected by the agreements
and subordination provided by Subordinate Lender pursuant to the terms
of this Agreement.
(b) So long as any additional advances, extension, amendment, or
other modification of the Senior Loan Documents or Senior Deed of Trust does
not constitute or include a Subordinate Reviewable Modification, Subordinate
Lender's agreement to subordinate the Subordinate Loan Documents and the liens
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created thereunder to the Senior Loan Documents and Senior Deed of Trust shall
concinue in- full force and effect without the need for renewal of Subordinate
Lender's promise and agreement of subordination, notwithstanding such
additional advance, extension, amendment, or other modification. Furthermore,
without 'limitirig the generality of the foregoing, Subordinate Lender specifically
acknowledges that its promise and agreement of subordinacion shall automatically
apply to, any and all additional advances, extensions, amendments, or other
modifications of the Senior Loan Documents or Senior Deed of Trust arising in
any of the following situations:
(i) regardless of whether a default has occurred under the
Senior Loan Documents, Senior Lender'si'election to advance additional
funds to preserve or protect the Property"and its security in the Property,
including but not limited to advances to prevent waste or destruction, to
payor prevent liens, to pay taxes, insurance premiums, or other
assessments or charges against the Property, to defend Borrower's title or
Senior Lender's lien priority, to pay collection costs or other expenses
reimbursable by Borrower under the Senior Loan Documents, or to
address any ocher risks reasonably perceived by Senior Lender as
jeopardizing its security; and
(ii) regardless of whether a default has occurred under the
Senior Loan Documents, Senior Lender's election to modify any other
terms and provisions.of its Senior Loan, so long as such modification does
not constituCe a Subordinate Reviewable Modification.
2. Dealings With Borrower.
2. I Senior Lender, i.n making disbursements pursuant to any of the Senior
Loan Documents, has no obligation otdutyto, nor has SeniorLender represented that it will, see
to the application of any proceeds by the person or persons to whom Senior Lender disburses
such proceeds, and any application. or use of such proceeds' for purposes other than those
provided for in the Senior Loan Documents shall not defeat the subordination herein in whole or
in part.
2.2 Senior .Lender, in inaking disbursements pursuant to any of the Senior
Loan Documents, may waive any and all conditions,(o a disbursement contained in the Senior
Loan Documents. Any such waiver shall not defeat the, subordination herein in whole or in part.
3 Other Provisions,
3 I Subordinate Lender acknowledges and agrees that Senior Lender would
not inake the Senior Loan without this Agreement.
3.2 Subordinate Lender acknowledges having received and reviewed copies of
all of the Senior Loan Documents and consents' to and appro'ves all of the provisions of each of
the Senior Loan Documents,and all other agreements delivered to 'Subordinate Lender, including,
without limitation, any escrow or disbursement agreements, between Borrower and Senior
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Lender for the disbursement of the proceeds of the Senior Loan. Senior Lender shall deliver to
Subordinate Lender true and correct copies of the fully executed Senior Loan -Documents and
copies of any future .modifications or amendments to the Senior Loan Documents. Subordinate
Lender shall deliver to Senior Lender true and correct copies of the fully executed Subordinate
Loan Documents and copies of any future modifications or amendments to the Subordinate Loan
Documents.
3.3 This Agreement constitutes the entire agreement between the parties, and
shall supersede and cancel any prior agreements regarding the subordination of the Subordinate
Loan Documents and any liens or rights created thereunder This Agreement may be executed in
counterparts, but shall not be binding on any party hereto until executed by all of the parties
hereto.
34 If any provision of this Agreement is invalid, illegal, or unenforceable,
such provision shall be considered severed from the rest of this Agreement and the remaining
provisions shall continue in full force and effect as if the invalid provision had not been included.
3.5 This Agreement inures to the benefit of and is binding upon the parties
hereto and their respective heirs, successors and assigns.
3.6 This Agreement is construed by and governed in accordance with the laws
of the State of California.
3.7 This Agreement is not intended to create any joint venture, partnership or
similar arrangement between Senior Lender and Subordinate Lender.
3.8 Nothing contained in this Agreement is intended to affect or limit, in any
way, the rights that any of the paI1ieshercto may have against any person or entity not a party to
this Agreement or, except as expressly provided herein, the rights that any of the parties hereto
may have under the Subordinate Loan Documents or the Senior Loan Documents.
3.9 Any notice, request, demand, consent, approval or other communication
provided or permittcd hcreunder, or that any party shall otherwise desire to give to another party
in connection herewith, shall be in writing and be given by personal delivery, sent by nationally
recognized private courier service or United States first class mail, postage prepaid, or
transmitted by telecopy, delivered or addressed to the party for whom it is intended at its address
set forth below
If to Senior Lender' FIRST REGIONAL BANK
970 West I 90th Street, Suite 400
Torrance, California 90502
Attention: Ralph Downing, Senior Vice President
With a
copy to: FIRST REGIONAL BANK
1801 Century Park East
Los Angeles, California 90067
Attention: Legal Department
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If to Subordinate Lender' POWAY REDEVELOPMENT AGENCY
13325 Civic Center Drive
Poway, Oilifornia 92064
Attention: Dena Fuentes, Assistant Executive Director
With a
copy to: STRADLING YOCCA CARLSON & RAUTH
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Attention: Thomas P Clark, Jr.
If to Borrower' OCEAN PARK HOTELS - PWY, LLC
27441 Tourney Road, Suite 220
Valencia, California 91355
Attention: James M. Flagg
With
a copy to: MULLEN & HENZELL LLP
112 East Victoria Street
Santa Barbara, California 93101
Attention: Ramon R. Gupca; Esq.
3 10 In the event of any action or any suit with respect to this Agreement, or
any documents executed pursuant hereto, whether or not suit is filed whether in federal court,
state court, administrative proceedings, arbitration proceedings (if agreed upon by the parties
hereto), insolvency proceedings, the prevailing party, in addition to all other sums to which it
may be entitled by law, shall be entitled to a reasonable sum for .attorneys' fees and costs
incurred.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Subordinate Lender and Senior Lender have executed this
Subordination Agreement as of the date first above written.
SUBORDINATE LENDER:
POWAY REDEVELOPMENT AGENCY,
a public'body, corporate and politic
By'
Name: '<:1J~ G.00 LD
Title: ,--~eLvJ""/~ ':lIrK~7b'^--
A TrEST
Agency Secretary
APPROVED AS TO FORM.
Stradling Y occa Carlson & Rauth,
Agency Special Counsel
SENIOR LENDER:
FIRST REGIONAL BANK,
a California banking corporation
By'
Name:
Title:
BORROWER:
OCEAN PARK HOTELS - PWY, LLC,
a California limited liability company
By' cb~c~
Name: James M. Flagg "-
Title: Manager
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
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IN WITNESS WHEREOF, Subordinate Lender and Senior Lender have exccuted this
Subordination Agreement as of the date first above written.
SUBORDINATE LENDER:
POW A Y REDEVELOPMENT AGENCY,
a public body, 'corporate and politic
By'
Name:
Titlc:
0TfEST'~J4~~
~ccretary
APPROVED AS TO FORM:
Stradling Y occa Carlson & Rauth,
Agency Special Counsel
SENIOR LENDER:
FIRST REGIONAL BANK,
a California banking corporation
By'
Namc:
Title:
BORROWER:
OCEAN PARK HOTELS - PWY, LLC,
a California limited liability company
By'
Name: Jamcs M. Flagg
Title: Manager
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
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IN WITNESS WHEREOF, Subordinate Lender and Senior Lender have executed this
Subordination Agreement as of the date first above written.
SUBORDINATE LENDER:
POWAY REDEVELOPMENT AGENCY,
a public body, corporate and politic
By'
Name:
Title:
A TrEST
Agency Secretary
SENIOR LENDER:
FIRST REGIONAL BANK,
a California banking corporation
By'
Name:
Title:
BORROWER:
OCEAN PARK HOTELS - PWY, LLC,
a California limited liability company
By'
Name: James M. Flagg
Title: Manager
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
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IN WITNESS WHEREOF, Subordinate Lender and Senior Lender have executed this
Subordination Agreement as of the date first above written.
SUBORDINATE LENDER:
POW AY REDEVELOPMENT AGENCY,
a public body, corporate and politic
By'
Name:
Title:
A lTEST
Agency Secretary
APPROVED AS TO FORM.
Stradling Yocca Carlson & Rauth,
Agency Special Counsel
SENIOR LENDER:
FIRST REGIONAL BANK,
a California banking corporation
By' 'i?~~
Name: . 0...... AN..J
Title: ~r.J~
BORROWER:
OCEAN PARK HOTELS - PWY, LLC,
a California -,?bility company
By' ci ---""
-
Name: James M. Flagg
Title: Manager
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
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STATE OF Cli k\Orf),! a.., )
COUNTY OF 31" O)ej{) ) ss
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On ~e~. 2\ , 20QJ before me, Sn-err'lt'.1:) wocre II ,a Notary Public
in and for said ounty and State, personally appeared .::}dm.... ~ fI\.. ~\fl~ '
PC136"olll ~Ivwlllo me (or proved tome on the basis of satisfactory eviden 0 be the
person(0 whose name\t)~/are subscribed to the within instrument, and acknowledged to me that
@isbe4i>ey executed the same in~llfo4l!eir authorized capacityMe6, and that by@;efl-tfteir
signature(-sj on the instrument the personfs), or the entity upon behalf of which the personts")
acted, executed the instrument.
WITNESS my hand and official seal.
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Notary Public
STATE OFfuJ i-\Drf\ , Cl.. )
COUNTY OFs,,1"\ '0\ eB c) ) ss
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On Sl"g+.'2.1 ,2007, before me, Sherr~~ \:::.,t~rrell ,aNotaryPublic
in and for said ounty and State, personally appeared KO d. u \ d ,
personally known to me (~r J3F9'reg.t0 mo g" tf:1("" b'i'dc l)fC'Qt;c;:f~f't9J')' e"id8Ase) to be the
person~ whose name~~/are subscribed to the within instrument, and acknowledged to me that
~sllefthey executed the same in~r authorized capaeity/ie5;-and that by,@/Rer4Ileir
signature(~on the instrument the persoAf3), or the entity upon behalf of which the person~)
acted, executed the instrument.
WITNESS my hand and official seal.
. SHfRRIf 0 WOlIIIE ~.uA ~ 0 ,fl;)rUJ4J
. C .u otary PublIC
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STATE OF Q -e'td'W<o )
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COUNTY OF 1.:,.'5A'f' f"", )
On kg 2/ <.f ,202] before me, 1Ac-,,j(..;-'j /) eflflH,q>loJ , a Notary Public
in and for said ounty and State, personally appeared 'Tf1tV1E2,; rYl. l--L-tl'14
.personally "He.." tv me (or proved to me on the basis of satisfactory evidence) to be the
pcrson(~) whose name(~)(fSl/ilI'e subscribed to the within instrument, and aCknowle%\,d to me that
he/she/they executed'the same in@4lGr/their authorized capacity/ies, and that by(his'/her/tWir
signature(~) on the. instrument the person(i), or the entity upon behalf of which the person(i)
acted, executed the instrument.
WITNESS my hand and official seal.
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@ JACINTA 1. ABRAHAM
'...... . Commission #'1503788 ,
~ . -. Notary ""bile. CaUfOmla f _ -1 /1
j , . Los Angeles County f ~.... ~-
_ _ _ ~V:~m:..Ex~.J~26.:.2?
STATE OF )
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COUNTY OF )
On _' 20~, before me, ,a Notary Public
in and for said County and State, 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 hislher/their authorized capacity/ies, and that by his/her/their
signature(s) on the instrument theperson(s), or the entity upon behalf of which the person(s)
acted, executed che instrument.
WITNESS my hand and official seal.
Notary Public
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STATE OF C-- K{~.:.... )
COUNTY OF f!.,)S Clr:Peo ) ss
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On Sf~ ~,b'i ,200] before me, JALL-<flf T HBt2.4+Jtl"1,aNotaryPublic
in and for said ounty and State, jJersonally appea~~ ~~~I E: _~o ,.IN 1>( ~ '
personally known to me (or pro.,.ee to me OR tAe-b~tisfacto~~) to e the
&erson(if) whose namedsxft!al:e s~ed to the within instrument, and acknowled_ged to me that
nefsile/tlley executed the same in h' /their authorized capacity/-ies; and that b~/.lw!:/tlteir
signature(ll on the instrument the person(t), or the entity upon behalf of which the person(i)
acted, executed the instrument.
WITNESS my hand and official seal.
@ JACINTA 1. ABRAHAM ....- j\L.C
- - CommissIon # 1503788 J
~ ~ .~~ Notary Public. ColltomfO f
, Los Angeles County -
. . My Comm Expire. Jul26. 2008
STATE OF )
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COUNTY OF )
On , 20_, before me, , a Notary Public
in and for said County and State,.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 hislher/their
signature(s) on the instrumentthe person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION
[to be attached]
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EXHIBIT 'A'
PARCEL A:
Pj\,RCEL 2 OF PARCEL,MAP NO. 19954, IN THE cm OF POWAY, COUNTY OF SAN DIEGO,
STATE OF'CAUFORNIA, ACCORDING TO PARCEL MAP THEREOF FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY;MARCH 21, 2006, AS INSTRUMENT
NO. 2006-0192773 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM THAT PORTION OF SAID PARCEL 2 DESCRIBED AS FOLLOWS:
BEGINNING AT SOUTHWEST CORNER OF SAID PARCEL 2, THENCE ALONG WESTERLY
BOUNDARY OF SAID PARCEL 2, NORTH 01041'30" EAST, 109.7,9 FEET; THENCE NORTH
8,8018~30" WEsT, 6,119 FEET; THENCE NORTH 01041'30" EAST 72;09 FEET; THENCE
NORTH 88024'04" WEST 41.16 FEET; THENCE NORTH 01035'56" EAST 38.92 FEET;
THENCE SOUTH 88024'04" EAST 62.83 FEET; THENCE INTO A NONTANGENT CURVE OF
RADIUS 61.50 FEET WITH A CENTER AT A BEARING SOUTH 21952'41" WEST, A
DISTANCE OF 12.87 FEET, WITH A DELTA OF 11059'12"; THENCE,!!OUTH 01035'56"
WEST 215..17 FEET; THENCE NORTH 88019'00" WEST 27.48 FEET TO POINT OF
BEGINNING.
TOGETHERWITH A PORTION OF PARCEL 1 OF SAID PARCEL MAP NO. 19954 DESCRI8ED
AS FOLLOWS:
BEGINNING AT !HE NORTHEAsr COR.NER OF SAID PARCEL 1, THENCE ALONG THE
EASTERLY BOUNDARY OFSAIDPARCEL.l, SOUTH 01035:56" I(IIEST 61.08 FEET; THENCE
NORTH 88024'04" WEST FOR 17.00 FEET; THENCE SOUTH 01035'56" WEST 102.92 FEET;
THENCE NORTH 88024'04" WE.ST 45.09 FEET; THENCE TO I';IORTHERL Y BOUNDARY OF
SAID PARCEL 1,NORTH 01035'56;' EAST 164.00 FEET; THENCE SOUTH 88024'04" EAST
62.09 FEET TO POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS "PARCEL B" IN A CERTIFICATE OF COMPUANCE
RECORDED DECEMBER 26,2006 AS INSTRUMENT NO. 2006-0913338 OF OFFICIAL
RECORDS.
PARCEL B:
AN E!<5EMENT AND RIGHT OF YiAY FOR ACCESS; INGRESS AND EGRESS AND UTIUTY
PURPQSES OVER, UNDER A~OI':lG AND ACROSS THAT PORTION OF PARCEL 1 OF SAID
PARC",LMAPNO. 19954 DEUNEATED AND DESIGNATED AS "EASEMENT FOR ACCESS,
GENERAL UTIUTY AND DRAINAGE PURPOSES FOR PARCEL 2 RESERVED HEREON".
PARCEL C:
A PERPETUAL NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OF MOTOR
VEHICLES AND'PEDESTRIANS, TO'PERMIT THE FREE FLOW OF VEHICULAR AND
PEDESTRIAN_INGRESS AND EGRESS TO, FRO~, OVER AND ACROSS THOSE PORTIONS
OFTHE,REAL;PROPERTY DEFINED IN SECTION l(a) AS THE RESTAURANT PARCEL
NCS.2ZB67S-SD 1 of:2
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. .
FirSt American Title Insurance Company National Commercial File No.. NCS-228675-SD (LG)
Services
Date: September 25, 2007
EASEMEN.:r AREA (SAID EASEMENT 8EING FOR THE USE. AND ENJOYMENT, COMFORT
AND CONVENIENCE OF ALL TENANTS, CUSTOMERS"EMPLOYEES, SUPPUERS, INVITEES,
UCENSEES), TOGETHER WITH A NON-EXCLUSIVE EASEMENT FOR PARKING SPACES,
ALL A~ CONVEYED, SET FORTH AND DESCRIBED IN THAT CERTAIN RECIPROCAL
EASEMENT AGREEMENT DATED AUGUST 10, 2007, BY AND BETWEEN THE POWAY
REDEVELCJPME~T AGENCY, A PUBUC BODY, CORPORATE AND POUTIC AND OCEAN
PARKHOTE~, LLC, A CAUFORNIA UMITED UABILITY COMPANY,
RECORI?ED . iJe., . 2007 AS DOCUMENT NO. 2007-
8m'!- ()Ic^<,~\ '-I OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, CAUFORNIA.
NCS-228675-S0 20f2
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. .
EXHffiIT "B"
SENIOR LOAN DOCUMENTS
[to be attached]
507707.2 14
J+-
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.
.
EXHIBIT "B"
SENIOR LOAN DOCUMENTS
I Promissory Note
2, Disbursement Request and Authorization
3 Commercial Guaranty
4 Limited Liability Company Resolution To Borrow / Grant Collateral
5 Construction Deed of Trust
6. Assignment of Rents
7 Construction Loan Agreement
8. Assignment of Construction Contracts
9 Assignment of Architect's Contract
10 Commercial Security Agreement
II Assignment of Deposit Account
12. Hazardous Substances Certificate and Indemnity Agreement
13 Hazard Insurance Disclosure
14 Agreement To Provide Insurance
15 UCC-I Filing