HomeMy WebLinkAbout1996-223 Resale Restr - Davis0t 08806
SUBORDINATION AGREEMENT
R£CORP£D AT ';t,£ ~£QUEST
KEY TITLE COMPA~V
NOTICE TO SENIOR LIENHOLDER: THIS AGREEMENT WILL RESULT IN YOUR PRESENT
SECURITY INTEREST IN THE PROPERTY BECOMING INFERIOR TO AND OF LOWER
PRIORITY THAN A NEW LIEN WHICH WILL ENCUMBER THE PROPERTY. IF YOU HAVE
ANY QUESTIONS REGARDING THE EFFECT OF THIS DOCUMENT, CONSULT YOUR
A]-FORNEY BEFORE SIGNING.
SENIOR LIENHOLDER: The City of Ashland
AND
JUNIOR LIENHOLDER: Fleet Mortgage Corporation
desire to enter into this Subordination Agreement:
1. WHEREAS, the Junior Lienholder is about to become the owner and holde' of a Trust
Deed dated, February 28, 2001, which is to be recorded in Jackson County Records and which
secures a Promissory Note in the sum of $85,000.00 payable over a term of 180 months at an
interest rate of 6.50% and which is to be a lien on the following described real property:
Lot 12, ASHLAND PARKVIEW SUBDIVISION, in the City of Ashland, Jackson County, Oregon.
Situs Address: 1268 Rose Lane Ashland OR 97520
2. WHEREAS, the Senior Lienholder is the owner and holder of aTrust Deed recorded
August 21, 1997, in Instrument No. 97-31274, Records of Jackson County, Oregon, and which is a
lien superior to that of the Junior Lienholder's on the above described real property; and
3. WHEREAS, the Senior Lienholder has agreed to subordinate the lien described in
paragraph 2 to the lien of the Junior Lienholder described in paragraph 1, which lien is intended to
be a valid lien on all of the real property described in said instrument and every part thereof, pdor
to and superior in effect and right to the Senior Lienholder's lien.
NOW, THEREFORE, in consideration of Not disclosed, receipt of which is hereby acknowledged,
the Senior Lienholder hereby covenants and agrees as follows:
Senior Lienholder's lien described in paragraph 2 is hereby subordinated and made subject and
inferior in effect and right to the lien of the Junior Lienholder described in paragraph 1 for its entire
term and for all purposes; the lien of the Junior Lienholder herein is hereby expressly recognized
and declared by the Senior Lienholder to be a valid lien upon all of the real property described in
paragraph 1, and every part thereof, prior and supedor in effect and right to the interest and lien of
the Senior Lienholder and the Senior Lienholder hereby covenants and represents that the Senior
Lienholder is the present owner and holder of the Trust Deed which is hereby subordinated.
DATEDAND EXECUTED: March ~ 2001
Jaeklon
(3eu~ly,
Recorded
OFFiCiAl.
The City of Ashland P,~/ ~o/-/~ , ~/~"~ /c/-/7~°r~ ~
N q8
COUNTY
state of oregon, county of )ss. (.. ,2OOl
Personally appeared the above named and acknowledged the forgoing instrument to be His
voluntary act and deed.
Before me:
Notary~ublic for Oregon
My Commission Expires: z/'-~,~O ~L
~ SONJA N A~R~AN
~j~ NOTARY PUBLIC ~REGON
~ ~J COMMISSION N~ 310793
Escrow No.: 03-49388
PROMISSORY NOTE
SECURED BY DEED OF TRUST
$ z~ ,'~5' .'O~ Ashland, Oregon, Lzlz~ , 1996
For value received, I promise to pay to the order of the City of Ashland, Oregon,
("City"), at City Hall or such other place as the City may. designate, the principal sum
of ~-c~¢..Tu~,,-~,~r~ -t~Ce~ ~uu~.~, ~lJ~f ~,,¢e ~,~r~ o~,,~.($ ~. ~¢'.o,4, ), plus
accrued interest, upon the terms and conditions set foi'th belo~.
1. AFFORDABLE HOUSING AGREEMENT. This obligation is secured by a Trust
Deed and is subject to all the terms and conditions of such Trust Deed. This
obligation is given pursuant to a "CITY OF ASHLAND AFFORDABLE HOUSING
RESALE RESTRICTION AGREEMENT (SDCs ONLY)" and is subject to all the terms
and conditions of such agreement (further referred to in this note as "the Agreement").
The promisor shall have the right to prepay all or any portion of the unpaid principal of
this note without penalty. However, any payments shall be applied first to
accumulated interest and then to principal.
2. INTEREST. The unpaid principal balance of this note shall bear simple interest at
the rate of six percent (6.0%) per year from the date of this note until paid.
3. REPAYMENT.
3.1. During the first 20 years after this note is executed, no payments of either
principal or interest shall be due or payable so long as I continue to own and occupy
the home as my primary residence, and so long as I am not in violation of any of the
terms of this note or the trust deed securing it. As set forth in the Agreement, I may
also make a qualified transfer of the home to an eligible buyer who shall assume this
note without violating the terms of this note.
3.2. During the first 20 years after this note is executed, the total amount of the
principal and accrued interest shall become immediately due and payable in full upon
my transfer of the home to any person or entity other than an eligible buyer as defined
in the Agreement or to an otherwise eligible buyer who does not assume this note and
the trust deed securing it and agree to comply with all of its terms, or whenever I
cease to occupy the home as my primary residence, or whenever I am in default for
failure to comply with any of the terms of this note or the trust deed. At the end of 20
years following the date of execution of this note, if I am at that time the owner and
occupier of the home and am not in default under any terms of this note or the trust
deed, this note and my obligation to pay the principal and accrued interest shall be
cancelled and forgiven by the City.
4. BINDING EFFECT; JOINT AND SEVERAL OBLIGATIONS. This note and its terms
shall be binding upon my heirs, executors, administrators, personal representatives,
successors, and assigns. Throughout this note, the terms '1," "me," and "my" refer
PAGE 1 of 2-Promissory Note qa:plarmhag\afforev.not)(Rev'd10/93)
CITY OF ASHLAND AFFORDABLE HOUSING
RESALE RESTRICTION AGREEMENT (SDCs ONLY)
KATHERINE DAVIS
1268 ROSE LANE
Agreement Date: %=l~ql~
Name of Development:
Property Address:
Purchase Price
Date of Purchase:~.lZ~l~
Recording Requested by:
When Recorded Return to:
City of Ashland
City of Ashland
Affordable Housing Coordinator
20 E. Main Street, Ashland, OR
97520
Agreement entered into on the date specified above by the City of
Ashland ("City") and the Owner (also referred to as "You") named
above regarding certain improved real property located at the
property address Specified above ("the home").
RECITALS:
A. The home referred to in this agreement is described
more fully on the attached Exhibit A.
B. The home is being made available for purchase by an
eligible moderate-income purchaser pursuant to the City's
Affordable Housing Program ("Program"). The Owner is an eligible
moderate-income purchaser under the Program and intends to live
in the home as an owner-occupant.
C. The Owner recognizes that in purchasing the home,
the Owner is receiving the benefits of the City's assistance to
the developer of the property upon which the home is located, and
that without such assistance the Owner would not have been able
to purchase the home. The Owner understands that signing this
Agreement and complying with its terms are necessary to permit
the City to fulfill its affordable housing goals.
City and Owner agree:
1. Occupancy Requirement. You agree and acknowledge that the
City's acceptance of your participation in the Program and
purchase of the home is conditioned upon your continuing
occupancy of the home. For purposes of this agreement, continuing
occupancy includes renting of the home by the Owner to others if
you have established a temporary residence outside Jackson
County, Oregon. Any such rental, however, shall not exceed 24
months in any five year period.
2. Deferment of Systems Development Charges (SDCs). City will
defer the payment of SDCs owed by you and due on the home. You
will execute a promissory note payable to City in a principal
amount equal to the total cost of the SDCs that have been
deferred. The note and the obligations under this Agreement will
be secured by a trust deed on the home.
3. SDCs Due Upon Transfer of Home. Except as provided in
paragraph 4, you agree to pay to the City when you "transfer" the
home any amount due from the promissory note referred to in
paragraph 2.
3.1. Definition of transfer. To "transfer" the home
means any sale, assignment or transfer, whether voluntary or
involuntary, of any interest in the home, including, but not
limited to, a fee simple interest, a co-tenancy interest, a
survivorship interest, a life estate, a leasehold interest
(except as provided in paragraph 1), any right to possession
under a rental agreement (except as provided in paragraph 1), or
an interest evidenced by a mortgage, trust deed or land sale
contract in which possession of the home is transferred and you
retain title.
3.2. Assumption requirement. This agreement shall apply
to and bind any purchaser or transferee in an exempt or qualified
transfer (see paragraph 4). Such purchaser or transferee shall
assume your duties and obligations under this Agreement in
writing, or sign an agreement substantially similar to this
Agreement, prior to the transfer of the home. If the purchaser or
transferee fails to assume this Agreement or execute and deliver
a substantially similar agreement to the city prior to the sale
or transfer, then you shall pay any amount due from the
promissory note referred to in paragraph 2.
Recording of the assumption agreement in the official records of
Jackson County, Oregon, shall be a condition of the City's
approval of the proposed transfer. You agree to pay a reasonable
assumption fee to the City and to reimburse the City for its
expenses incurred in administering its rights and obligations in
connection with any transfer under this Agreement. Upon the close
of any transfer, you agree to provide the City with copies of the
recorded trust deed, final sales contract, settlement statement,
escrow instructions, and any other documents prepared or used in
connection with the transaction.
4. Exempt and Qualified Transfers. No amount shall be due under
paragraph 3, however, if the transfer is either an "exempt
transfer" or a "qualified transfer" as provided in this
Paragraph:
4.1. Exempt transfer. An "exempt transfer" is:
4.1.1. A transfer by gift or inheritance to your spouse
or children;
4.1.2. A taking of title by a surviving joint tenant; a
court-ordered transfer of title to a spouse as part of a
dissolution proceeding; or an acquisition of title, or of any
interest in the title, in conjunction with marriage.
4.1.3. A refinancing of the existing purchase money
first mortgage or trust deed encumbering the home by securing a
new first mortgage or trust deed on the home in an amount not
greater than the then present balance of the first mortgage or
trust deed plus applicable loan fees and closing costs. An exempt
transfer also includes a home equity loan secured by a third
mortgage or trust deed on the home, which shall be subordinate to
this note and the trust deed securing it provided that the
proceeds of such home equity loan shall only be used for
improvements to the home, including landscaping.
4.2. Qualified transfer. A "qualified transfer" is a
transfer to an eligible buyer for a sales price that does not
exceed the affordable housing purchase price as determined by
Ashland City Council Resolution number 93-39 including
amendments, if any. A qualified transfer must also meet the
requirements set forth in this paragraph. At least 30 days prior
to the transfer, you shall provide the following information to
the City:
4.2.1. The name, address and telephone number of the
proposed buyer;
4.2.2. A financial statement signed by the proposed
buyer and his or her spouse, if any, in a form acceptable by the
City and accompanied by such supporting documentation as
requested by the City. The financial information shall be used by
the City to determine the income eligibility of the proposed
buyer. To be an eligible buyer, a buyer shall certify that he or
she will occupy the home as his or her principal home. The buyer
and all other members of the buyer's household shall meet the
income guidelines established from time to time by the City for
participation in its affordable housing program.
4.2.3. A copy of the proposed sales agreement and all
related documents, which set forth the terms of the transfer:
4.2.4. A written certification signed by the proposed
buyer and you in a form acceptable to the City stating that:
4.2.5. The transfer shall be closed in accordance with
the terms of the sales agreement and other documents submitted
and approved by the City;
4.2.6. Neither the proposed buyer nor any other party
has paid or will pay to you or for your benefit, and you have not
received nor will you receive from the proposed buyer or any
other party, either directly or indirectly or for your benefit,
money or any other consideration in addition to what is set forth
in the sales agreement and related documents;
4.2.7. In the event that a transfer is made in
violation of the terms of this agreement, or that false or
misleading statements are made in any documents or certifications
submitted to the City, the City shall have the right to file a
legal action to force the parties to terminate or rescind the
sales agreement, or to declare the sale void notwithstanding the
fact that the sale may have closed and become final as between
the buyer and you.
5. You Must Notify City of Transfer. If you desire to transfer
the home, you are required to notify City in writing to that
effect. If the transfer is a qualified transfer, the notice and
information provided must comply with paragraph 4.2. For any
other transfer the notice shall state the street address of the
home, your full name or names, the address and telephone number
at which you are to be contacted if not at the home. The notice
shall be given at least 30 days prior to the transfer and shall
be delivered as provided in paragraph 9.
6. Priority and Effectiveness of this Agreement. This Agreement,
or a memorandum of this agreement, shall be filed for recordation
in the County Clerk deed records, Jackson County, Oregon prior to
any sale, conveyance, transfer or other disposition of the home,
or of any estate or interest in the home, by you. The Agreement
shall have priority over any subsequent sale, conveyance,
transfer, lease or other disposition or encumbrance of the home,
or of any estate or interest in the home.
7. Term of Agreement. The restrictions contained in this
Agreement shall continue for a period of 20 years from the date
of this Agreement.
8. Survival of Agreement Upon Transfer. The City's rights under
this Agreement shall survive any transfer of the home by you.
9. Notices. Except as otherwise specified in this Agreement, all
notices required to be sent pursuant to this Agreement shall be
made by personal delivery or by deposit in the United States
mail, first class postage prepaid, and shall be deemed to have
been delivered and received on the date of personal delivery or
five days after deposit in the mail, if sent to the following
addresses:
City:
Affordable Housing Coordinator
City of Ashland
20 E. Main Street
Ashland, Oregon 97520
OWNER: at the address of the home
The addresses above may be changed by notice given pursuant to
this paragraph.
10. Waiver. No condition of this agreement or of the note or
trust deed shall be deemed waived unless expressly waived in
writing by City.
11. Default. A default shall occur if you fail to perform or
observe any of the provisions of this agreement, the note or
trust deed. If any default occurs, City may, at its option,
declare the entire unpaid balance of principal and accrued
interest on the note immediately due and payable and enforce any
of the remedies set forth in the trust deed.
12. Binding Effect. Throughout this Agreement, the terms "Owner"
and "you" refer individually and collectively to all persons who
sign this Agreement and all persons signing this Agreement shall
be jointly and severally liable for its obligations.
13. Attorneys' fees. If either party is required to initiate
legal proceedings to enforce its rights under this Agreement, the
prevailing party in such action shall be entitled to an award of
reasonable attorneys' fees and costs in addition to any other
recovery under this Agreement.
OWNER: CITY OF ASHLAND:
State of Oregon
County of Jackson /j
This instrument was acknowledged before me on~i~ ~Z2~. ~ V ,
__1~96, by ~~%~-~. ~and ~/~ ~ .
~~l'~}.~z,, ~ No~ry~ublic for Oregon
................. My commission expires: ~-&~ ~
State of Oregon
County of Jackson
Thia~ instrument was acknowledged ~e~~-~-~ ~ , ~9~,
by ~~.~~~Z~as ~ of the City
of Ashland, Oregon. ~
N6tar~/Public
for Oregon
My Commission expires:
TRUST DEED
This trust deed is made on q;::;f=/.~t,t~¢- z~r 1996, between
KATHERINE E. DAVIS , as Grantor(s), the City of
Ashland, as Beneficiary, and Paul Nolte, an active member of the Oregon State Bar as
Trustee.
1. Conveyance by Grantor. For good and valuable consideration, receipt of which is
acknowledged, and for the purpose of securing the loan obligations described in
Section 3 below, Grantor irrevocably grants, bargains, sells, conveys, assigns, and
transfers to Trustee in trust for the benefit and security of the Beneficiary, with power
of sale and right of entry and possession, all of Grantor's right, title, and interest in and
to the real property located in Jackson County, State of Oregon, and more particularly
described in the attached Exhibit A (the "Property").
2. The Note. Beneficiary has offered to defer the systems development charges due
on the Property and to make a loan to Grantor for the amount of the charges which
loan is to be evidenced by a promissory note of the same date as this trust deed.
(The promissory note as modified, supplemented, extended, renewed, or replaced
from time to time is referred to below as the "Note".) The date of maturity of the debt
secured by this instrument is 20 years from the date of the Note. In the event the
Property, or any part of, or interest in, the Property is sold, agreed to be sold,
conveyed, assigned or alienated by the Grantor without complying with the terms of
the Note or the Agreement described below, then, at the Beneficiary's option, all
obligations secured by this instrument, irrespective of the maturity dates expressed
above or in the Note, shall immediately become due and payable.
3. Obligations Secured. This trust deed secures the following, collectively referred
to as the "loan obligations":
3.1. The payment of all indebtedness, including but not limited to principal and
interest, and the performance of all covenants and obligations of Grantor under the
Note, whether such payment and performance is now due or becomes due in the
future;
3.2. The payment and performance of all covenants and obligations in the City
of Ashland Affordable Housing Resale Restriction Agreement (SDCs Only) dated
,,~z.[~ [~1~ ("the Agreement") entered into by Grantor and Beneficiary. The term
loan obligations" as used in this trust deed shall mean all amounts payable to
Beneficiary under the terms of the Note and the Agreement.
4. Possession. Grantor agrees to pay the Note and the Agreement in accordance
with their terms. Until default occurs, Grantor shall remain in possession and control
of the property and subject to the terms of the Agreement, Grantor shall be free to
operate and manage the property and receive the proceeds of operation.
PAGE 1-TRUST DEED (p:plannlng\aff-trst4.dedl
5. Warranty of title. Grantor warrants that Grantor holds merchantable title to the
property in fee simple or that Grantor holds a yendee's interest in the property under a
conditional sales contract. Grantor warrants and will defend Grantor's title against the
lawful claims of all persons. In the event any action or proceeding is commenced that
questions Grantor's title or the interest of Beneficiary or Trustee under this deed,
Grantor shall defend the action at Grantor's expense.
6. Powers of Trustee. In addition to all powers of Trustee arising as a matter of law,
Trustee shall have the power to take the following action with respect to the property
on the request of Beneficiary and Grantor: (a) joining in the dedication of roads or
other rights in the public; (b) joining in granting any easement or creating any
restriction on the property; (c) joining in any subordination or other agreement
affecting this deed or the interest of Beneficiary under this deed; or (d) selling the
property or any part thereof. Trustee shall not be obligated to notify any other party of
a pending sale under any other deed or trust or lien, or of any action or proceeding in
which Grantor, Beneficiary, or Trustee shall be a party, unless the action or
proceeding is brought by Trustee.
7. Deed of Reconveyance. If Grantor pays all of the loan obligations when due and
otherwise performs all of the obligations imposed on Grantor under this instrument, the
Note and the Agreement, Beneficiary shall execute and deliver to Trustee a request for
full reconveyance.
8. Default. Grantor shall be deemed to be in default if Grantor fails to perform any of
the obligations imposed by this deed, the Note or the Agreement.
9. Remedies. On the occurrence of any event of default and at any time thereafter,
Beneficiary may exercise any one or more of the following rights and remedies:
9.1. The right to declare all sums secured by this trust deed immediately due
and payable.
9.2. The right to foreclose by notice and sale by Trustee or by judicial
foreclosure, in either case in accordance with applicable law.
9.3. The right in connection with any legal proceedings to have a receiver
appointed to take possession of any or all of the property, with the power to
protect and preserve the property and to use the property preceding
foreclosure or sale and apply the proceeds, over and above costs of the
receivership, against the loan obligations. The receiver may serve without bond
if permitted by law. Beneficiary's right to the appointment of a receiver shall
exist whether or not apparent value of the property exceeds the loan obligations
by a substantial amount.
9.4. Any other right or remedy provided in this deed, the Note or the
Agreement.
PAGE 2-TRUST DEED ~p:planning\aff-trst4.ded}
97-31274
10. Application of proceeds. In the event the Trustee exercises the power of sale
conferred by this trust deed, the Trustee shall apply the proceeds of the sale in the
following order:
10.1. To the expense of the sale, including reasonable attorney fees,
10.2. To the loan obligations secured by this trust deed, and
10.3. The surplus, if any, to the persons entitled thereto.
11. Waiver. A waiver by either party of a breach of a provision of this agreement
shall not constitute a waiver of or prejudice the party's right otherwise to demand strict
compliance with that provision or any other provision. Election by Beneficiary to
pursue any remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or take action to perform an obligation of Grantor under this deed
after failure of the Grantor to perform shall not affect Beneficiary's right to declare a
default and exercise its remedies under this trust deed or the Contract.
12. Trust Deed Binding on Successors and Assigns. Subject to the limitations
stated in this deed on transfer of Grantor's interest, and subject to the provisions of
applicable law with respect to successor trustees, this deed shall be binding on and
inure to the benefit of the parties, their successors and assigns.
13. Subordination. Grantor and Beneficiary acknowledge and agree that this Deed
of Trust is subject and subordinate in all respects to the liens, terms, covenants and
conditions of the Deed of Trust in favor of Bank of America ("First Deed of Trust") and
to all advances heretofore made or which may hereafter be made pursuant to the First
Deed of Trust including all sums advanced for the purpose of (a) protecting or further
securing the lien of the First Deed of Trust or for any other purpose expressly
permitted by the First Deed of Trust or (b) construction renovating, repairing,
furnishing, fixturing or equipping the Property. The terms and provisions of the First
Deed of Trust are paramount and controlling, and they supersede any other terms and
provisions hereof in conflict therewith. In the event of a foreclosure or deed in lieu of
foreclosure of the First Deed of Trust, any provisions herein or any provisions in any
other collateral agreement restricting the use of the Property to low or moderate
income households or otherwise restricting the Grantor's ability to sell the Property
shall have no further force or effect on subsequent owners or purchaser of the
Property. Any person, including his successors or assigns (other than the Grantor or
a related entity of the Grantor), receiving title to the Property through a foreclosure or
deed in lieu of foreclosure of the First Deed of Trust shall receive title to the Property
free and clear from such restrictions.
Further, if the property is transferred as a result of deed in lieu of foreclosure
pursuant to the First Deed of Trust the lien of this Deed of Trust shall automatically
terminate upon transfer of the property pursuant to the foreclosure or deed in lieu of
foreclosure provided that (i) the Beneficiary has been given written notice of a default
under the First Deed of Trust and (ii) the Beneficiary shall not have cured the default
PAGE 3-TRUST DEED (p:planning\aff-trst4.ded}
under the First Deed of Trust, or diligently pursued curing the default as determined by
the beneficiary under the First Deed of Trust within the 60-day period provided in such
notice to the Beneficiary.
STATE OF OREGON
COUNTY OF JACKSON
.~This instrume~nt ~.,as acknowledged before
CYNTHIA L. NELSON
NOTARY PUBLIC-OREGON
COMMISSION NO. 048327
~M¥ COMMISSION EXPIRES OCT. 24, 1999
me on 12'
N~(a~ Public for Oregon
My commission expires:
by
PAGE 4-TRUST DEED (p:plannlng\aff-trst4.dedl
97-31274
EXHIBIT "A"
Lot 12 of the ASHLAND PARKVIEW SUBDIVISION, a Planned Community
Development, in the City of Ashland, Jackson County, Oregon, according to
the official plat thereof, now of record.
Map #391E10BC, Tax Lot 5412
1268 Rose Lane
Jackson County, Oregor~
Recorded
OFFICIAL RECORDS
AU6 2, 1 1997
COUNTY CLERK