2015-094600 ~ Ash Avenue ~ Burnham Ash Development Subordination Agt. Washington County,Oregon 2015-094600
D-MSU
Stn=22 S PFEIFER 11/12/2015 12:58:14 PM
$45.00$11.00$5.00$20.00$20.00 $101.00
I,Richard Hobernicht,Director of Assessment and Taxation and Ex-
Officio County Clerk for Washington County,Oregon,do hereby
certify that the within instrument of writing was received and
recorded in the book of records of said county.
After Recording Mail To: Richard Hobernicht,Director of
Assessment and Taxation,Ex-Officio
U. S. Bank National Association
Commercial Real Estate
in SW Fifth Avenue,6th Floor
Portland,OR 97204
Attn: Robyn Ehrig
Property Tax Account Nos.R462270,R462261 and R462252
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT ("Agreement") is entered into as of November (a ,
2015, by THE CITY CENTER DEVELOPMENT AGENCY OF THE CITY OF TIGARD,
• OREGON ("CCDA"), whose mailing address is 13125 SW Hall Blvd., Tigard, OR 97232, and
Y U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Lender"), whose
mailing address is 111 SW Fifth Avenue,6th Floor,Portland,OR 97204.
Recitals
1n A. Reference is made to the Development and Disposition Agreement with an effective
date of April 16, 2015 by and between CCDA and DIG Tigard LLC,an Oregon limited liability
\A company ("Diamond"), and Capstone-Green Light LLC,an Oregon limited liability company
t-► ("Capstone"), as amended by the First Amendment to Development and Disposition
Agreement dated September 1, 2015, and as assigned by Diamond and Capstone to Premium
S Property - Tigard LLC, an Oregon limited liability company ("Developer") by Assignment of
W Development and Disposition Agreement dated October 27, 2015 (the "DDA"). The DDA
H provides for the sale of the real property ("Property") legally described on Exhibit A to this
H Agreement by CCDA to Developer.
O• B. Lender has agreed to make a a loan ("Loan") to Developer in the principal amount of
Q $22,240,000.00. The Loan is to be secured by a Commercial Deed of Trust, Assignment of Rents
t2 and Leases,Security Agreement and Fixture Filing("Deed of Trust") encumbering the Property.
✓ The Deed of Trust is recorded in the records of Washington County, Oregon under Recording
No. 2 D J 5 - 09'1 S$N . (CCDA authorizes Lender to insert the recording number upon
recordation of the Deed of Trust.) The proceeds of the Loan are to used by Developer to
construct improvements on the Property which are generally described in the DDA (the
"Improvements").
B. Under the DDA, Developer is obligated to complete construction of the Improvements
and Section 10.3 of the DDA provides,in part, that CCDA shall have the right to repurchase the
Property if Developer does not achieve Substantial Completion (as defined in the DDA) of the
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After Recording Mail To:
U. S. Bank National Association
Commercial Real Estate
111 SW Fifth Avenue,6th Floor
Portland,OR 97204
Attn: Robyn Ehrig
Property Tax Account Nos.R462270,R462261 and R462252
SUBORDINATION AGREEMENT
VrN
THIS SUBORDINATION AGREEMENT ("Agreement") is entered into as of November 1,1 ,
2015, by THE CITY CENTER DEVELOPMENT AGENCY OF THE CITY OF TIGARD,
OREGON ("CCDA"), whose mailing address is 13125 SW Hall Blvd., Tigard, OR 97232, and
V U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Lender"), whose
c`—
mailing address is 111 SW Fifth Avenue,6th Floor,Portland,OR 97204.
Recitals
\r. A. Reference is made to the Development and Disposition Agreement with an effective
date of April 16, 2015 by and between CCDA and DIG Tigard LLC, an Oregon limited liability
company ("Diamond"), and Capstone -Green Light LLC, an Oregon limited liability company
("Capstone"), as amended by the First Amendment to Development and Disposition
r` Agreement dated September 1, 2015, and as assigned by Diamond and Capstone to Premium
Property - Tigard LLC, an Oregon limited liability company ("Developer") by Assignment of
W Development and Disposition Agreement dated October 27, 2015 (the "DDA"). The DDA
Hprovides for the sale of the real property ("Property") legally described on Exhibit A to this
Agreement by CCDA to Developer.
0
• B. Lender has agreed to make a a loan ("Loan") to Developer in the principal amount of
< $22,240,000.00. The Loan is to be secured by a Commercial Deed of Trust, Assignment of Rents
La and Leases,Security Agreement and Fixture Filing("Deed of Trust") encumbering the Property.
✓ The Deed of Trust is recorded in the records of Washington County, Oregon under Recording
No. 2-015 - O`1`-5 . (CCDA authorizes Lender to insert the recording number upon
recordation of the Deed of Trust.) The proceeds of the Loan are to used by Developer to
construct improvements on the Property which are generally described in the DDA (the
"Improvements").
B. Under the DDA, Developer is obligated to complete construction of the Improvements
and Section 10.3 of the DDA provides,in part, that CCDA shall have the right to repurchase the
Property if Developer does not achieve Substantial Completion (as defined in the DDA) of the
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Improvements within three years after commencement of construction. The DDA's right to
repurchase the Property is referred to in this Agreement as the"Repurchase Option").
C. Lender is unwilling to make the Loan to Developer unless CCDA subordinates the
Repurchase Option to the Deed of Trust as provided in this Agreement.
Agreement
NOW,THEREFORE,CCDA agrees as follows:
1. Subordination. CCDA unconditionally subordinates the Repurchase Option and all of
CCDA's rights thereunder to the lien, security interests and other rights granted to Lender
under the Deed of Trust and agrees that for so long as the Deed of Trust is in effect the
Repurchase Option and all CCDA's rights thereunder are and shall remain unconditionally
subordinate to the Deed of Trust. Without limiting the generality of the foregoing
subordination, if CCDA exercises the Repurchase Option, it will take title to the Property
subject to the lien of the Deed of Trust and all rights of Lender thereunder and if the Deed of
Trust is foreclosed, such foreclosure shall terminate the Repurchase Option and from and after
the date of the foreclosure sale,the owner of the Property through foreclosure and its successors
and assigns shall take the Property free and clear of any obligation to complete construction of
the Improvements.
2. Option to Purchase Loan. In consideration of CCDA's subordination under Section 1
above, Lender agrees that if it commences foreclosure of the Deed of Trust prior to Substantial
Completion (as defined in the DDA) of the Improvements,Lender will give CCDA copies of the
notice of default and notice of sale required under ORS Ch. 086 for a non judicial foreclosure of
the Deed of Trust promptly after such notices are given to the Developer, or in the case of a
judicial foreclosure, a copy of the complaint for foreclosure promptly after the filing thereof.
For so long thereafter as such foreclosure proceedings are pending and have not been dismissed
or discontinued, CCDA shall have the option to purchase the Loan from Lender for a purchase
price equal to the full amount owing thereon (including, without limitation, all principal,
interest, default interest, late charges, fees, costs and other amounts owing under the Deed of
Trust and the other documents evidencing and securing the Loan). If CCDA exercises such
option,which it may do by giving written notice to Lender no less than 45 days prior to the date
scheduled for the foreclosure sale, the purchase price for the Loan shall be paid to Lender in
immediately available funds and Lender will assign the Deed of Trust and the other loan
documents to CCDA without warranty or representation. Closing of the purchase of the Loan
shall take place on a date reasonably acceptable to Lender and CCDA (but within thirty (30)
days after notice exercising the option is given to Lender) and shall take place through an
escrow at Chicago Title Insurance Company of Oregon, with all costs of the escrow to be paid
by CCDA. The option to purchase the Loan granted hereunder shall terminate and be of no
further force or effect upon completion of the foreclosure sale and under no circumstances
whatsoever shall CCDA or any assignee of CCDA have any right to postpone or defer the
foreclosure sale. The option to purchase the Loan granted to CCDA hereunder is fully
assignable by CCDA so long as the assignee provides assurances reasonably acceptable to
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Lender that it is not a "Sanctioned Person" which, as used herein means, (a) anyone listed in
any Sanctions1 related list of designated persons maintained by the U.S. Department of the
Treasury's Office of Foreign Assets Control, and any successor thereto, or the U.S. Department
of State,the United Nations Security Council, the European Union or any EU member state, (b)
any person or group operating, organized or resident in a Sanctioned Country,2 (c) any agency,
political subdivision or instrumentality of the government of a Sanctioned Country, or (d) any
person 50% or more owned,directly or indirectly,by any of the above.
3. Representations and Warranties. CCDA represents and warrants to Lender as follows:
3.1. This Agreement is executed by CCDA at Developer's request and CCDA has
received fair and adequate consideration therefore.
3.2. CCDA has not assigned the DDA or any of its rights thereunder.
3.3. This Agreement has been duly authorized by all necessary action of CCDA and
is binding and enforceable against CCDA.
4. Dealings with Developer. CCDA agrees that Lender may deal exclusively with
Developer in all matters relating to the Loan without notice to or the approval of CCDA.
References in this Agreement to the Deed of Trust include any modification, extension or
renewal of the Deed of Trust, including without limitation, any increase in the indebtedness
secured by the Deed of Trust,and no such modification, extension or renewal shall require the
consent of CCDA or in any way impair the subordination of the Repurchase Option to the Deed
of Trust.
5. Miscellaneous.
5.1. Governing Law. This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of Oregon.
5.2. Invalidity of Any Part. If any of the provisions of this Agreement shall for any
reason be held to be invalid,illegal or unenforceable,in whole or in part or in any respect, or in
the event that any one or more of the provisions of this Agreement operate or would
prospectively operate to invalidate this Agreement, then: (a) the provisions shall be enforced to
the fullest extent of its validity, legality and enforceability; or, (b) if such provision(s) would
operate so as to invalidate this entire Agreement, only such provision(s) shall be void as if they
were not contained herein, and the remainder of the provisions of this Agreement will remain
in full force and affect.
1 Economic or financial sanctions or trade embargoes imposed, administered or enforced from time to
time by(a) the U.S. government,including those administered by OFAC or the U.S. Department of State
or (b) the United Nations Security Council,the European Union or Her Majesty's Treasury of the United
Kingdom.
2 Any country or territory which is itself the subject or target of any comprehensive Sanctions.
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5.3. Legal Expenses. If legal action is commenced to enforce or interpret this
Agreement,the party substantially prevailing in such action shall be entitled to reimbursement
by the non-prevailing party of all reasonable out-of-pocket expenses of any kind, including
reasonable attorneys'fees incurred in such action,induding legal fees for any appeal.
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IN WITNESS WHEREOF,the parties have duly executed this Agreement as of the day and year
first above written.
"CCDA"
THE CITY CENTER DEVELOPMENT AGENCY
OF THE CITY OF TIGARD,OREGON
r
By:
Name: jvtAc4-�a L. t�1hei
Title: n(ectth've -Dire c.4--D-r---
STATE OF OREGON )
) ss.
COUNTY OF ,. c"//S/)/J/iJ 6C'i\ )
This instrument was acknowledged before me on November 10 2015, by
))) ,•-///‘;- 2. id I i7 e , as the 4 r r u 747 r,t 13 rrc f e'- of THE CITY CENTER
DEVELOPMENT AGENCY OF THE CITY OF TIGARD,OREGON.
DATED this /0'"day of /1,/,,,,,,e',27 L'c r ,2015.
T' l2?Cc �? ,r
_ ._,
f' '• OFFICIAL STAMP Notary Public in and for the fate of Oregon,residing at
. -* _: " CAROL ANN KRAGER i‘l 61+$ S .S L'4a Pal k _if
.-� NOTARY PUBLIC - OREGON
�, COMMISSION NO. 924954 / /G,,J'M r/, o/Z_ '17 2 22
MY COMMISSION EXPIRES FEBRUARY 10,2018 Name (printed or typed) C A R z-k- .4 • i< P zi 6•E/2—
My appointment expires: Fr' - 14 G I fsj
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CONSENT OF DEVELOPER
By signing below, Developer consents to all of the provisions of the foregoing agreement
including,without limitation,the option to purchase the Loan granted to CCDA thereunder.
DATED November ^`,2015.
PREMIUM PROPERTY-TIGARD LLC,
an Oregon limited liability company
By: 1,/17,7, \.
Name:Jeffrei Sackett
Its: Authorized Operations Manager
By:
Name:Thomas Stevenson
Its: Authorized Financial Manager
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CONSENT OF DEVELOPER
By signing below, Developer consents to all of the provisions of the foregoing agreement
including,without limitation,the option to purchase the Loan granted to CCDA thereunder.
DATED November 2015.
PREMIUM PROPERTY-TIGARD LLC,
an Oregon limited liability company
By:
Name:Jeffrey M.Sackett
Its: Authorized Operations Manager
By:
Name:Thomas Stevenson
Its: Authorized Financial Manager
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EXHIBIT A
Legal Description
The Property is located in Washington County,Oregon,and is legally described as follows:
A tract of land being a portion of Lot 5 of the plat of "Burnham Tract" located in the Northeast
One-Quarter of Section 2, Township 2 South, Range 1 West, Willamette Meridian, City of
Tigard,Washington County,Oregon and being more particularly described as follows:
Beginning at the Southeast corner of Lot 5 of the plat of "Burnham Tract" being a 3/4 inch iron
pipe;thence North 43°16'11" West 71.49 feet to a point;thence North 39°44'30" West 39.15 feet to
a point;thence North 45°21'36" West 6.34 feet to a point; thence North 12°53'35" West 42.34 feet
to a point; thence North 34°58'59" East 43.75 feet to a point; thence North 44°38'24" East 27.78
feet to a point; thence North 45°21'36" West 9.10 feet to a point; thence North 37°10'33" East
20.73 feet to a point; thence North 44°38'24" East 50.97 feet to a point; thence North 06°3824"
East 26.98 feet to a point;thence North 28°16'23" West 126.55 feet to a point on the southeasterly
right-of-way of SW Ash Avenue (20 feet from centerline); thence along said right-of-way North
44°30'29" East 192.20 feet to a point;thence South 45°29'39" East 17.50 feet to a 5/8 inch diameter
iron rod with yellow plastic cap inscribed "AKS ENGR." And being on said right-of-way (37.5
feet from centerline); thence along said right-of-way North 44°30'29" East 55.37 feet to a point;
thence along a curve to the right with a radius of 237.50 feet, delta of 17°13'20", length of 71.39
feet, and chord of North 53°07'09" East 71.12 feet to a point; thence North 61°43'49" East 138.76
feet to a point; thence along a curve to the right with a radius of 21.50 feet, delta of 75°00'00",
length of 28.14 feet, and chord of South 80°46'11" East 26.18 feet to a point along the
southwesterly right-of-way of SW Burnham Street (37.5 feet from centerline); thence along said
right-of-way South 43°16'11" East 9.39 feet to a point; thence leaving said right-of-way South
44°31'36"West 232.50 feet to the southwesterly corner of document number 2010-103509;thence
South 43°16'11" East 69.42 feet to the southeasterly corner of said document number; thence
South 44°30'13" West 17.00 feet to a 5/8 inch iron rod with yellow plastic cap inscribed
"WEDDLE LS 874" at the southwesterly corner of document number 2003-194237; thence South
43°16'11" East 140.48 feet to a 5/8 inch iron rod with yellow plastic cap inscribed "WEDDLE LS
874" on the northwesterly line of Lot 6 of the plat of "Burnham Tract"; thence South 44°38'24"
West 438.30 feet to the point of beginning.
EXCEPTING THEREFROM All that certain real property situated in the City of Tigard,County
of Washington,State of Oregon,being described as follows:
A Portion of the Northeast One-Quarter of Section 2, Township 2 South, Range 1 West,
Willamette Meridian, being a portion of that land described in Document No. 2015-068950,
Washington County Deed Records,and being more particularly described as follows:
Commencing at the most Northerly corner of that land described in Document No.2015-068951,
being a 5/8" iron rod with a yellow plastic cap marked "AKS ENGR" set by SN 32564,
Washington County Survey Records; thence along the Northwesterly line of Document No.
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2015-068950, Washington County Deed Records, North 44°30'29" East 192.20 feet; thence
continuing along said Northwesterly line,South 45°29'39" East 17.50 feet to a 5/8" iron rod with
a yellow plastic cap marked "AKS ENGR" per SN 32208, being the True Point of Beginning of
this description;thence continuing along said Northwesterly line North 44°30'29" East 43.68 feet
to a 5/8" iron rod with a yellow plastic cap marked "AKS ENGR" per SN 32208, on the
Northwesterly extension of the Southwesterly line of Document No. 2010-103509; thence along
the said Northwesterly extension and the said Southwesterly line of Document No. 2010-103509,
South 43°16'11" East 151.89 feet to a 5/8" iron rod with a yellow plastic cap marked "AKS
ENGR" per SN 32564, on the Northwesterly line of Document No 2003-194237; thence along
said Northwesterly line South 44°30'13" West 17.00 feet to a 5/8" iron rod with a yellow plastic
cap marked ""WEDDLE LS 874" Per SN 25063, being the most Westerly corner of said
document; thence along the Southwesterly line of said document South 43°16'11" East 140.48
feet to a 5/8" iron rod with a yellow plastic cap marked "WEDDLE LS 874" per SN 25063, at the
South corner of said document, also being the most Southerly Southeast corner of Document
No. 2015-068950; thence South 44°38'24" West 37.04 feet along the Southeasterly line of said
document; thence leaving said Southeasterly line North 43°16'11" West 280.23 feet to a point of
curve left; thence Northwesterly around a curve left (radius of 14.00 feet, central angle of
57°27'00", long chord bearing North 71°59'41" East 13.46 feet) 14.04 feet to a point from which
the True Point of Beginning bears North 44°30'29" East;thence North 44°30'29" East 16.84 feet to
the True Point of Beginning of this description.Containing 13,423 square feet more or less.
AND FURTHER EXCEPTING THEREFROM All that certain real property situated in the City
of Tigard,County of Washington,State of Oregon,being described as follows:
A Portion of the Northeast One-Quarter of Section 2, Township 2 South, Range 1 West,
Willamette Meridian, being a portion of that land described in Document No. 2015-068950,
Washington County Deed Records,and being more particularly described as follows:
Beginning at the most Northerly corner of that land described in Document No. 2015-068951,
being a 5/8" iron rod with a yellow plastic cap marked "AKS ENGR" set by SN 32564,
Washington County Survey Records; thence from said Point of Beginning along the
Northwesterly line of Document No. 2015-068950 Washington County Deed Records, North
44°30'29" East 192.20 feet;thence continuing along said Northwesterly line,South 45°29'39" East
17.50 feet to a 5/8" iron rod with a yellow plastic cap marked "AKS ENGR" per SN 32208;
thence leaving said Northwesterly line South 44°30'29" West 197.62 feet to a point on the
Northeasterly line of said Document No. 2015-068951; thence along said Northeasterly line
North 28°16'27" West 18.32 feet to the Point of Beginning of this description. Containing 3,411
square feet more or less.
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