Loading...
Deed of Trust and Assignment of Rents 1991-0105228 - • �. BOG 0 1991-0105228 1238 11-MAR-1991 08 : 14 AM SAN DIEGO COUNTY RECORDER'S OFFICE ANNETTE EVAHS, COUNTY RECORDER RECORDING REQUESTED BY ) FEES:, 0.00 AND WHEN RECORDED MAIL TO: ) ) POWAY REDEVELOPMENT AGENCY ) 13325 Civic Center Drive ) 1 Poway, California 92064 ) \ Attn: Executive Director ) \ , .This document is exempt from the !\ payment of a recording fee pursuant to Government Code Section 6103 . POWAY REDEVELOPMENT AGENCY r/'�Vl� By: Its: eu¢cuti�e � �recTor Dated: /- 25 - , 19 9/ DEED OF TRUST AND ASSIGNMENT OF RENTS (San Diego County) THIS DEED OF TRUST AND ASSIGNMENT OF RENTS is made as of the .2,,$'-S' day of Tanugay , 1991, by and among POWAY LAND INC. , a California corporation (the "Trustor" ) , whose address is 707 S. Hale Ave Escondido , California 92025 (the "Trustee" ) , whose address is , and the Poway Redevelopment Agency (the "Beneficiary" ) , whose address is 13325 Civic Center Drive, Poway, California, 92064. FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property located in the County of San Diego, State of California, that is described in Exhibit A, attached hereto and by this reference incorporated herein ( the "Property" ) . TOGETHER WITH all rents, issues, profits, royalties, income and other benefits derived from the Property (collectively, the "rents" ) , provided that so long as Trustor is not in default hereunder, it shall be permitted to collect rents and operate the Project, as hereinafter defined, in accordance with the 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 1 of 18 ! . • �1 1239 • requirements of that certain Owner Participation Agreement entered into between the Trustor and the Beneficiary as of , 1991 (the "Agreement" ) , which Agreement is on file with the Beneficiary as a public record and is incorporated by reference herein; TOGETHER WITH all interests, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto including, without limiting the generality of the foregoing, all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property including, without limitation, all fixtures, attachments, appliances, furnishings, equipment and machinery (whether fixed or movable) and other articles (including, in each instance, improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto or therefor) ; TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature; TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property or any portion thereof or interest therein, and any greater estate in the Property owned or hereafter acquired; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 2 of 18 • • 1. ° with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any .proceeding or purchase in lieu thereof of the whole or any part of such property including, without limitation, any awards resulting from a change of grade of streets and awards for severance damages; All of the foregoing, together with the Property, is herein referred to as the "Security" . FOR THE PURPOSE OF SECURING: (a) Payment in an amount equal to the amount of the Agency Assistance (Five Million Five Hundred Thousand Dollars) in the event that the Improvements are not completed as provided in. the Agreement pursuant to the Schedule of Performance; (b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of Trustor' s obligation to advance said sums and the expiration of any applicable cure period and upon five (5) business days notice to the Trustor, with interest thereon as provided herein; (c) Payment of such additional sums and interest thereon which may hereafter be loaned to Trustor, or its successors or assigns, by Beneficiary, when evidenced by a promissory note or notes or other documents reciting that they are secured by this Deed of Trust; and (d) Performance of every obligation, covenant or agreement of Trustor contained herein or the Agreement (and any amendments thereto) . • .. • ARTICLE I DEFINITIONS 1 . "Agreement" means that certain Owner Participation Agreement entered into by the Trustor and the Beneficiary hereof, dated June 13, 1989; said Agreement ( a copy of which is on file with the Beneficiary at the address stated above, and including all of its attachments) is incorporated herein by reference. 2 . "Agency, " "Agency Assistance, " "Certificate of Completion" , "Participant" and "Improvements" are defined in the Agreement. • 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 3 of 18 • p • 1241 • 3 . The term "Expiration Date" means the date upon which ( i ) the Agency Assistance amount has been fully paid by the Trustor to the Beneficiary and no payment is due; or ( ii ) the • Certificate of Completion has been issued to the Trustor for all of the Improvements; and ( iii ) all other obligations, the performance of which is secured by this Deed of Trust, have been satisfied. 4. "Mortgage" means any permanent or long-term loan (other than a loan by an entity related to or controlled by the Participant) , or any other financing device ( including, without limitation, deeds of trust) the proceeds of which are used in the construction of the Participant' s Improvements; 5 . "Participant' s Project" means the "Property" and the "Participant' s Improvements" , together with all additions, improvements, restorations and replacements thereof, and together with the items set forth in the sixth paragraph hereof . 6. "Property" is defined in the second paragraph hereof. 7 . "Security" is defined in the twelfth paragraph hereof. 8. "Standards" means those standards of construction and operation characteristic of first-class mobile home park developments of size, character, and quality similar to the Project. 9 . "Total Obligation" shall mean all amounts the payment of which is secured by this Deed of Trust including, without limitation, the Agency Assistance. 10. "Trustor" means Poway Land Inc . , a California corporation, its transferees and successors in interest. Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind any transferees or successors in interest as well as Poway Land Company. Where the terms of the Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation' of the Trustor and such transferee . Unless the context clearly otherwise requires, any capitalized term used herein and not defined herein shall have the meaning given to it under the Agreement ( and any amendments thereto) . 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 4 of 18 • • ® 1242 ARTICLE II MAINTENANCE AND MODIFICATION OF THE PROJECT AND SECURITY; CERTIFICATE OF COMPLETION UPON PAYMENT • Section 2 . 1 Maintenance and Modification of the Project by Trustor. The Trustor agrees that at all times prior to the Expiration Date, the Trustor will, at the Trustor' s own expense, maintain, preserve and keep the Project or cause the Project to be maintained, preserved and kept in a condition substantially similar to other mobile home park facilities of similar size, character and quality to the Project, consisting only of those uses allowed by the Agreement. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Project. Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of completion upon completion of construction of any part of the Security, diligently file or procure the filing of a notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty (30) days or more, and to take all other reasonable steps to forestall the assertion of claims of lien against the Security or any part thereof. Section 2 . 2 Granting of Easements . Trustor may grant easements, licenses, rights-of-way or other similar rights or privileges in the nature of easements with respect to any property or rights included in the Security without the prior written approval of the Beneficiary. In the event such rights are granted, the Trustor shall promptly so advise the Beneficiary in writing. ARTICLE III TAXES AND INSURANCE; ADVANCES Section 3 . 1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as ( a) the legality thereof shall be promptly and actively 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 5 of 18 • 1243 contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this Section 3 . 1 in accordance with generally accepted accounting principles . With respect to special assessments or other similar governmental charges, Trustor shall pay such amount in whole or in installments over a period of years . In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay any such item within seven (7 ) business days of the earlier of the receipt or mailing of such notice . Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted under Section 1(2 ) of Article XV of the California Constitution, shall become an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor hereby agrees to pay all such amounts. Section 3 . 2 Provisions Respecting Insurance. ( a) Trustor agrees to provide insurance covering one hundred percent ( 100%) of the replacement cost of all insurable items within the Project during the course of construction and following completion in the event of fire, lightning, debris removal, windstorm, flood, vandalism, malicious mischief, theft, mysterious disappearance and hazards, casualties and contingencies as are normally and usually covered by all-risk policies in effect in the locality where the Project is situated. (b) Trustor agrees to carry or cause to be carried: ( i ) comprehensive general liability insurance with respect to the Project with limits of not less than One Million Dollars ($1, 000, 000. 00) each occurrence combined single-limit bodily injury and property damage . Coverages thereunder shall include contractual liability, personal injury, owners' and contractors' protection, elevator liability, garage liability, products and completed operations coverage; and ( ii ) workers' compensation insurance as required by law. (c ) All such insurance policies and coverages ( i ) shall be maintained at Trustor' s sole cost and expense so long as any part of the amounts secured by its Deed of Trust have not been paid, ( ii ) shall be with insurers of recognized responsibility, and in form and substance satisfactory to the Beneficiary, ( iii) shall name Beneficiary as additional insured, and ( iv) shall contain a provision to the effect that the insurer shall not cancel the policy or modify it materially and 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 6 of 18 410• ® 1244 adversely to the interests of Beneficiary without first giving at least thirty (30) days ' prior written notice thereof. Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time prior to the Expiration Date. Section 3 . 3 Advances. In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Project in good repair and operating condition, the Beneficiary may (but shall be ' under no obligation to) take out the required policies of insurance and pay the premium on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and, provided that the Beneficiary provides five (5 ) business days' notice to the Trustor all amounts so advanced therefor by the Beneficiary shall become an additional obligation of the Trustor to the Beneficiary (together with interest as set forth below) and shall be secured hereby, which amounts the Trustor agrees to pay on demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the maximum rate permitted by Section 1(2 ) of Article XV of the California Constitution. ARTICLE IV DAMAGE, DESTRUCTION OR CONDEMNATION Section 4. 1 Damage and Destruction. If, prior to the Expiration Date, the Project or any portion thereof is destroyed ( in whole or in part) or is damaged by fire or other casualty, the Trustor shall (a) cause any insurance proceeds arising from insurance referred to in Section 3 . 2 hereof and any other coverage acquired by the Trustor to be used to promptly rebuild and replace the Project, and (b) repair and replace the Project as necessary to bring the Project into conformity with the Standards; provided that such covenants shall be subordinated to the provisions of all senior obligations to which this Deed of Trust is subordinate . There shall be no abatement in, and Trustor shall be obligated to continue to pay, the amounts payable under the Agreement and this Deed of Trust. Section 4. 2 Condemnation. Subject to the provisions of senior obligations to which this Deed of Trust is subordinate, if title to or any interest in or the temporary use of the Project or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, including any proceeding or purchase in lieu • 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 7 of 18 • • • • ® 1245 thereof, the proceeds as a result of such taking shall be paid as provided by the law of the State of California to all persons or entities as their interests appear of record. ARTICLE V REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE TRUSTOR Section 5.. 1 Defense of the Title. The Trustor covenants that it is lawfully seised and possessed of title in fee simple to the Property, that it has good right to sell , convey or otherwise transfer or encumber the same, and that the Trustor, . for itself and its successors and assigns, warrants and will forever defend the right and title to the foregoing described and conveyed property unto the Beneficiary, its successors and • assigns, against the claims of all persons whomsoever, excepting only encumbrances approved by the Beneficiary. Section 5 . 2 Inspection of the Project. The Trustor covenants and agrees that at any and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Property. ARTICLE VI • AGREEMENTS AFFECTING THE PROJECT; FURTHER ASSURANCES Section 6 . 1 Other Agreements Affecting Project. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Agreement or any other agreement of any nature whatsoever now or hereafter involving or affecting the Property or any part thereof. Section 6. 2 Further Assurances; After Acquired Property. At any time, and from time to time, upon request by the Beneficiary, the Trustor shall make, execute and deliver, or cause to be made, executed and delivered, to the Beneficiary and, where appropriate, cause to be recorded and/or filed, and from time to time thereafter to be recorded and/or filed, and from time to time thereafter to be re-recorded and/or refiled, at such time and in such offices and places as shall be deemed desirable by the Beneficiary, -any and all such other and further deeds of trust, security agreements, financing statements respecting personal property, instruments of further assurance, certificates and other documents as may, in the 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 8 of 18 • ® • 1246 opinion of the Beneficiary, be necessary or desirable in order to effectuate, complete or perfect, or to continue and preserve, (a) the obligations of the Trustor under this Deed of Trust, and (b) the lien of this Deed of Trust as a lien prior to all liens except those obligations which shall be senior obligations pursuant to the provisions of this Deed of Trust. Upon any failure by the Trustor to do so, the Beneficiary may make, execute, record, file re-record and/or refile any and all such deeds of trust, security agreements, instruments, certificates and documents for and in the name of the Trustor, and the Trustor hereby irrevocably appoints the Beneficiary the agent and attorney-in-fact of the Trustor to do so. The lien hereof shall automatically attach, without further act, to all after-acquired property deemed to be part of the Security as defined herein. Section 6. 3 Agreement to Pay Attorney' s Fees and Expenses. In the event of an Event of Default hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such expenses are incurred at the maximum rate permitted by Section 1(2 ) of Article XV of the California Constitution. Section 6. 4 Subrogation; Payment of Claims. Provided that the Beneficiary gives notice of at least five (5) business days to the Trustor, the Beneficiary shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid by the Beneficiary pursuant to the provisions hereof. If permitted in the Mortgage, the Beneficiary shall have the right to pay and discharge the obligations secured by the Mortgage . Section 6 . 5 Operation of the Property. The Trustor agrees and covenants to operate the Property ( and, in case of a transfer of a portion of the Property, the transferee shall operate such portion of the Property) in full compliance with the Agreement until the Expiration Date . 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 9 of 18 • • • 1247 Section 6. 6 Payment of the Agency Assistance Amount. The Trustor shall pay to the Beneficiary the Agency Assistance Amount pursuant to Section 205 of the Agreement. Section 6 . 7 Transfer. No sale, transfer, lease, pledge, encumbrance, creation of a security interest in or other hypothecation of the Security shall relieve or certificate of completion the Trustor from primary liability under this Deed of Trust or the Agreement. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7 . 1 Events of Default Defined. The occurrence of any failure of the Trustor to perform under this Deed of Trust or the Agreement, and the continuation of said failure for a period of thirty (30) business days as to monetary obligations and sixty ( 60) business days as to non-monetary obligations, after written notice specifying such failure and requesting that it be remedied shall have been given to Trustor from the Beneficiary, shall be an Event of Default under this Deed of Trust. Section 7 . 2 Acceleration of Maturity. If an Event of Default shall have occurred and be continuing, then the entire indebtedness secured hereby shall, at the option of the Beneficiary, immediately become due and payable without notice or demand which are hereby expressly waived, and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right. Section 7 . 3 The Beneficiary' s Right to Enter and Take Possession. If an Event of Default shall have occurred and be continuing, the Beneficiary may: (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Property, or part thereof or interest therein, increase the income therefrom or protect the Security hereof and, with or without taking possession of the Property, sue for or otherwise collect the rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, upon any indebtedness secured hereby, all in such order as Beneficiary may determine . The entering upon and taking possession of the Property, the 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 10 of 18 1248 collection of such rents, issues and profits and the application thereof, as aforesaid, shall not cure or waive any Default or notice of Default hereunder or invalidate any act done in response to such Default or pursuant to such notice of Default and, notwithstanding the continuance in possession of the Property or the collection, receipt and application of rents, issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, the Agreement or by law upon occurrence of any Event of Default, including the right to exercise the power of sale. Trustor requests that a copy of any Notice of Default and a copy of any Notice of Sale hereunder be mailed to him at his address herein given; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor' s interest in the property to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of the County in which the Property is located; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to the Property, including any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Section 7 . 4 Foreclosure By Power of Sale . Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the Agency Assistance Amount is immediately due and payable) , and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. ( a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after Notice of Sale having been given as required by law, sell the Property, at the time and place of sale fixed by it in said Notice of Sale, either as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 11 of 18 1249 such order as it may determine, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale . Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers . (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: ( i ) the Agency Assistance Amount; (ii ) all other sums then secured hereby; and (iii ) the remainder, if any, to the person or persons legally entitled thereto . (c) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Section 7 . 5 Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under Security, and without regard to the then value of the Property or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof) , and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Property, unless such receivership is sooner terminated. Section 7 . 6 Remedies Cumulative . No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 12 of 18 411. • es 0 Section 7 . 7 No Waiver. ( a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or of any breach by the Trustor in the performance. of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or -to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights powers or remedies consequent on any breach or Default by the Trustor. (b) If the Beneficiary ( i ) grants forbearance or an extension of time for the payment of any sums secured hereby, ( ii ) takes other or additional security or the payment of any sums secured hereby, (iii ) waives or does not exercise any right granted herein, or in the Agreement, ( iv) certificate of completions any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements of this Deed of Trust or the Agreement, (v) consents to the filing of any map, plat or replat affecting the Security, (vi ) consents to the granting of any easement or other right affecting the Security, or (vii ) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not certificate of completion, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly certificate of completioned) ; nor shall any such act' or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in the event of any Default then made or of any subsequent Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 13 of 18 • ® • 1251 extent as it might deal with the Trustor and without in any way releasing or discharging any liabilities, obligations or undertakings of the Trustor. Section 7 . 8 Suits to Protect the Security. The Beneficiary shall have power (upon ninety (90) days notice to the Trustor) to ( a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security ( and the rights of the Beneficiary as secured by this Deed of Trust) by any acts which may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest ( as described in this Deed of Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and (c ) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the security thereunder or be prejudicial to the interests of the Beneficiary. Section 7 . 9 Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, • reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings for the entire amount due and payable by the Trustor under this Deed of Trust at the date of the institution of such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date. ARTICLE VIII MISCELLANEOUS Section 8. 1 Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. Section 8. 2 Reconveyance by Trustee. Upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee ' s reasonable fees, Trustee shall reconvey to Trustor, or to the person or persons legally entitled thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 14 of 18 ® 0 1252 facts shall be conclusive proof of the truthfulness thereof. The, grantee in any reconveyance may be described as "the person or person legally entitled thereto. " Section 8. 3 Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request, or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered or certified mail, postage prepaid, return receipts requested, or by telegram, addressed to the address set forth in the first paragraph of this Deed of Trust. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. Section 8. 4 Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Section 8. 5 Captions . The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. Section 8 . 6 Invalidity of Certain Provisions . Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable . If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. Section 8. 7 No Merger. If title to the Property shall become vested in the Beneficiary, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure under this Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Security shall not be destroyed or terminated by application of the law of merger or 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 15 of 18 123 as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice of termination to such tenant or subtenant. Section 8. 8 Governing Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the • State of California. Section 8 . 9 Gender and Number. In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust or has caused the same to be executed by its representatives thereunto duly authorized, as of the day and year first above written. POWAY LAND INC. , a California� � corporation By: l/',Lc%ni -4_,/f Kai-6n Its: 0 /12d :- /e 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 16 of 18 • 1254 STATE OF CALIFORNIA ) ss. COUNTY OF SAN DIEGO • On Sgnka�ey Q5, 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared Qickord l.. kf .4, personally ,known tn_me--e -proved .to mc on the basis of satisfactory evidence to be the person who executed the within instrument as the President, and A (Ign S. ki,„ foley- percomrily kne. in te—me—a_ proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Secretary of the Corporation that executed the within instrument and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seal . OFFICIALAL 44.411111N..:% CATHY SEAL) � trgA la g sm DIEGO COUNTY IN, tit ereL My Cantu.Exp.May 14,1993 • 01/24/91 ATTACHMENT NO. 6 3977n/2345/015 Page 17 of 18 • • EXHIBIT "A" 1at5-5 LEGAL DESCRIPTION OF THE PROPERTY All that portion of the Northwest Quarter of the Southeast Quarter of Section 13 , Township 14 South, Range 2 West, San Bernardino Base Meridian, in the City of Poway, County of San Diego, State of California, according to Official Plat thereof, . described as follows: Parcel 3 of Parcel Map No. 16213 as recorded in the Office of the County Recorder of San Diego County on September 7 , 1990. ATTACHMENT NO. 6 A: \HALEYLEG. DES