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
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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
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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.
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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) .
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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
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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
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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
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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
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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 .
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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
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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
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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.
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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
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® • 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
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® 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
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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
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•
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
•
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•
• 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