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Deed of Trust and Assignment of Rents 1998-0084896 J \. ~\, ,,'.; e) 258 , Reeorded Request 0f ' FIDELITXNATIONAL TITLE RECORDINGREQVESTED BY AND WHENREC0RDED MAIL TO: (I' (I ) ',' I. 'ji ) ,,--'1 )/:,(.J v. c / ) 1,.1 ( ) " ) ) ) .,' Poway Redevelopment Agency 13325 Civic Center Drive P.O. Box 789 Poway, California 92074"0789 Attention: Executive Director DOC') 1998~0084896 FEB 1.9. 1.998 1.:28 PM OFFICIAL RECORDS SAN DIEGOCOUNTV RECORDER'S OFFICE GREOORVJ.SMITH, COUNTY RECORDER FEES: 0.00 l41V: 2 111111111111 ""111111 "" "1~!J~mU" 1111' 11111 ""/11" 1/11 q, I Olffc:?--~ ( This .document is exempt fro_;n the payment of a recording fee pursuant to Government Code'Section 27383 DEED OF'TRUST AND ASSIGNMENT OF RENTS T,HIS DEED OF TRUST AND ASSIGNMENT OF RENTS is made as of ;:l (q , 1995, by and amongJMIKfI'/T&n1S~ as Trustee of the Travis Family Trust dated November n'-I993,whose address is /577'-( S-VAlS<:.T DdlV-e.. (',4. Q2oro'-(, fidelity Nationi'l Title Company (the "Trustee"), whose address is a no e Rio, California , and the POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Beneficiary"), whose address is 13325 Civic Center Drive, P,O, Box 789, Poway, California 92074-0789. 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 City of Poway; County of SanDiego, 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 requirements of that certain Disposition and Development Agreement entered into betWeen Trustor, Beneficiary and HMT Automotive, Inc, as of November 4, 1997 (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"wayandrightsused 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; *Hardy Matthew Travis -1- el 259 .:' TOGETHER WITH any and all buildings and iinp'rovemeTlts now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property, including, withoutlimitation,alUixtures, 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 aily 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 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 eminentdomain 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, Repayment of the Loan of Three Hundred Sixty Thousand Dollars ($360,000) from the Beneficiary to the Trustor according to and as set forth in the certain Promissory Note from Trustor to Beneficiary of even date herewith; 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 fifteen (15) business days notice to the Trustor, with interest thereon as provided herein; -2- o .J 260 .'i , 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 Promissory Note (and any amendments thereto), ARTICLE I DEFINITIONS "Agreement" means that Disposition and Development Agreement entered into by and between Trustor, Beneficiary and HMT Automotive, Ince, dated as,of November 4,1997; 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, "Improvements" is defined in the Agreement as the new automobile sales dealership facility to be constructed on the Property, together with all appurtenant improvements, as set forth in the Agreement, "Expiration Date" means the date upon which the amounts due pursuant to the Promissory Note, have been paid in full, and all other obligations the performance of which is secured by this Deed of Trust have been satisfied. "Mortgage" means any permanent or long.term loan (other than a loan by ,an entity related to or controlled by the Trustor), or any other financing'device (including without limitation deeds of trust) the proceeds of which are used in the construction of the Improvements, which loan is secured by a security interest in the Trustor's interest in the Improvements; "Project" means the "Property" and the "Improvements," together with all additions, improvements, restorations and replacement~ thereof, and together with the items set forth in the sixth paragraph hereof. "Promissory Note" collectively means the Promissory Note of even date herewith from Trustor in favor of Beneficiary evidencing Trustor's obligation to repay the Agency Loan, "Property" means the real property referred to in Exhibit A attached hereto, "Security" means the Property and the Improvements, "Standards" means those standards of construction and operation required by the Agreement. "Trustor" means Matt Travis, as Trustee of the Travis Family Trust dated November 11, 1993, and each of its transferees and successors in interest. Where an obligation is -3- ei 261 .; . created herein binding upon Trustor, the obligation shall be joint and several and shall also apply to and bind any transferees: or successors in interest. Where the terms of the Deed of Trust have the effect of creating:an ooligation 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), ARTICLE II MAINTENANCE AND MODIFICATION OF THE PROJECT AND SECURITY; RELEASE UPON PAYMENT Section 2.1 Maintenance and Modification of the' Proiect bv 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 conforming to the Standards and with only 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 fot 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 Release Of Security, Upon its receipt of the repayment of all amounts due under the Promissory Note, and all amounts secured by this Deed of Trust, and provided that the Trustor is not in default under the Agreement, the Beneficiary shall, upon the request of the Trustor, deliver to the Trustor such instruments as are reasonably necessary to confirm the release of-the Security from the lien of this Deed of Trust. -4- e) 262 ei ARTICLE III TAXES AND INSURANCE; ADVANCES Section 3.1 Taxes. Other Governmental Charl!es and Utility Charl!es, 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 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, 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 Resoectinl! Insurance, , (a) Trustor agrees to provide insurance for the Security of the kind and in the amounts required by the Agreement. (b) 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 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'cotidition, 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 arenecessary,and provide for payment thereof; and, provided that the Beneficiary provides ten (10) 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 . ' , -5- eJ '. 263 .i Beneficiary, and if not so paid, shall bear interest from the date oftheadvance at the maximum rate permitted by Section 1(2) ,of Article XV of the CaliforniaConstitiJtion, 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 (3) 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 Promissory Note and this Deed of Trust. Section 4.2 Condemnation, Subject to the provisions of,senior obligations to which this Deed of Trust is subordinate,iftitle 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 byany person, firm or corporation acting under governmental. authority, including any proceeding or purchase in lieu thereof, the proceeds as a result of such taking shall be paid as provided by the law of the State of California. ARTICLE V REPRESENTATIONS, COVENANTS AND, WARRANTIES OF THE TRUSTOR Section 5,1 Defense of the Title. The Trustor covenants' that it is lawfully seized and possessed of titlein fee simpie'to the Property, that it has good rightto sell, conveyor 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, againstth6claims of all persons whomsoever, excepting Oldy encumbrances approved by the Beneficiary, Section 5.2 Insoectionof the Proiect. 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, -6- ei 264 .~ ARTICLE VI AGREEMENTS AFFECTING THE PR,OJECT;FURTHER ASSURANCES; PAYMENT OF THE NOTE AMOUNT Section 6.1 Other A2reements Affectin2 Proiect. The Trustor shall duly and punctually perform all t'erms, 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 Prooertv, At any time, and from time to time, upon requestby 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 timetotime thereafter to be recorded and/or filed, 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 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 A2reement to Pav Attornev's Fees and Exoenses. 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 Reoavmentof the A2encv Loan, The Trustor shall repay to the Beneficiary the Agency'Loah in the amount and by the time set out in the Promissory Note, Section 6,5 Subro2ation: Pavment 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 a Mortgage, the Beneficiary shall have the right to pay and discharge the obligations secured by'the Mortgage. -7- .) 265 el , Section 6.6 Ooeration 'of the Proiect. The Trustoqlgre,es and covenants to operate the Project (and" in case ofatransfer of the Project, the transferee . shall operate the Project) in full compliance with theA,greement. 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 release the Trustor from primary liability under this Deed of Trust or the Agreement, as'the case may be, ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events"of Default Defined. The occurrence"of any failure of the Trustor to pay the Promissory Note or to perform under this Deed of Trust, 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 noti-monetary obligations, after written notice specifying such failure and requesting that it be remedied shall have been,giveD',toTrustor from the Beneficiary', shall be an "Event of Default" or a "Default" under lhis Deed of Trust. Section 7.2 Acceleration of Maturitv. If an EventofDefimlt shall have occurred and be continuing, then the entire indebtedness secured hereby shall, at the option of the Beneficiary, immediately become due"andpayable 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 ohuch right. . Section 7,3 The Beneficiarv' s Rightto Enter and TakePossession, 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 thereot) 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 prote<;tthe:Security hereof and; with or wjthout taking possession of the Property, sue' for or otherwise collect the rents, issues and ,profits thereof, including those past due and unpai(\,-and,apply the same, less costs and expenses of operation and collection, including attorneys' tees,upon any indebtedness secured hereby, all in such order as Beneficiary may determine. The:etitering upon and taking possession of the Property, the 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 pursuantto such notice of Defaultand, notwithstanding the continuance:in possession of the Property or the collection, receipt and, application ofrents, 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 Defau1tand a copy of any Notice of Sale hereunder be mailed to if at its address given herein; -8- .', 266 .i (b) CoifuneIice,ariaction to foreclose this Deed oITrus! 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 ill'the property to ,be sold, which notice Trustee or Beneficiary shall cause to be duly f11ed 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 Bv Power of Sale. Should ,the'BenefiCiary elect to foreclose by exerCise of the power of salel1erein contained, the BenefiCiary,shall notify Trustee and shall deposit with Trustee this Deed of Trust (and the deposit of which shal1.be deemed to constitute evidence that the amount of the Promissory Note 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 :ind 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 ill ,such order as it may deterrhine, 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 Of IlUrchasers 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 reasonabie costs, fees and expenses of Trustee, including costs of evidence,Qf title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i)'thePromissory NOte; (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 atsuch 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 75 Receiver. Iran 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 -9- .i 267 .' Security;andwiiliotit regard to the then value of the Property ortheelnterestof Trustor therein, shall have i the right to, apply 'to any'court having jurisdiction to appointa receiver or receivers of the Security(or'apart,thereot),and Trustor hereby irrevocably consents to such appointment. Any such receiver or' receivers shaJI have ' all the powers and ,duties ,of receivers in like or similar cases, and all the powers and duiiesotBeneficiary 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 ouemedy, 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, Section 7.7 No Waiver. (a) No delay or omission of the Beneficiary to ex,ercise 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 Trusttothe Beneficiary mayl?eexercised 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 iiny breach by the Trustahn 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'partof the Beneficiary to complain of,anyactor failure to act or to declare ,an Event of Default, irrespective of how long such failure'continues, shall notconstitute a waiver by the Beneficiary orits 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) releases any part of the Security Jrom,the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditiol)s or agreements of this Deed of Trust or the Agreement, (v) consents to the f1ling of anymap"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 release; discharge" modify, change or affect the original liability under this Deed of Trust; or"any other obligation of the Trustor or anysubseqtientpurchaser of the 'security or any part thereof, or any maker, 'co"signer, endorser, surety or guarantor (unless expressly released); nor shall any such'actor omission preclude the BeneficiaEyfrom 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 Trustbealtered 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 dealwith any such vendee or transferee with referenceito the Security (or a part thereot) or the indebtedness secured hereby, or with reference to any of the 'terms, covenants, -10- .1 , . 268 .! conditions or i1greements hereQf, as fully and to the same extent as jt might deal with the Trustor and withouUn,anywayreleasing or discharging any liabilities, obligations or undertakings of the Trustor. Sectioh'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 securecrbythis 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 oLTrust) in the Security and in the rents, issues, profits andrevenues 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 Mav 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 imd payable by the Trustor under thiS Deed of Trust at the date of the institution of such proceedings and for any additional amountwhich 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 instiumentin writing signed by the party against whom enforcement of any waiver, change" discharge or termination is sought. Section 8,2 Trustor Waiver of Ril!hts, Trustor hereby acknowledges that it is aware of and has the advice of counsel of its choice with respect to its rights under the Constitution of the United States, including, but not limited to, its rights arising under the Fourth, Fifth, Sixth and Fourteenth Amendments thereto,. and the Constitution of the State of California, Trustor agrees that Beneficiary, may exercise its rights hereunder in accordance with the provisions hereof, includiug, but not limited to, the exercise of the power of sale pursuanUo Section 7.4 hereof, and Trustor hereby expressly waives and releases its rights under such constitutional provisions with respect thereto, including, but not limited to, its rights, if any, to notice and a hearing upon the occurrence of an Event of Default hereunder; provided, however, nothing contained herein shall be deemed to be,a waiver of Trustor's rights to reinstate or redeem this Deed of Trust in accordance with applicable' law. Trustor further waives to the extent permitted by law, (a) the benefit of all laws now existing or that may' hereafter be enacted providing for any appraisement before sale of any portion of the Security, (b) all rights of valuation, appraisement, stay of-execution, notice of election to mature or declare due the whole of the secured indebtedness and marshaling in the event -11- . ,,, 269 . of foreclosure of the.Iiens hereby created, and (c) all rightS,andremedies"which Trustor may have or be able to,asserfby reaSO!l of-the laWs of the State of California pertaining to the rights and remedies of sureties, Section 8,'3 Reconvevance bv Trustee, Upon written request of Beneficiary stating that all sums secured,hereby have'bee.npaid, and upon surrender of this Deed of Trust to Trustee for canq:llation and retention, and upon'payment by Trustor of Trustee's,reasonable fees, Trustee shall reconvey to Trustor, orto 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 factS shall be conclusive pro6fof,tlie truthfulness thereof The grantee in any reconveyance may be described as "the, person or'person legally entitled thereto. " Section 8.4 Notices. Whenever Beneficiary, Trustor, or'Trustee shall desire to give or . serve any notice, demand, requestor other communication withrespecHo this Deed of Trust, each such notice, demand, request, or other communication shall be in~iting and shall be effective only if the same is delivered by personal service or mailed by registered or certified, mail, postage prepaid, remrnreceipts requested, oiby telegram, addressed to,the,address set fortli in the first paragraph of this Deed of Trust. Any party may at any time change its address for such !lotices by delivering or mailing to the"other parties hereto, as aforesaid, a'notice of such change. Section 8,5, - Acceptance bv Trustee. Trustee accepts thisTrust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law, , Section 8.6 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 8.7 Invalidity of Certain Provisions, Every provision of this Deed of Trust is intended to be severable, In the event any term or provision hereorisdeclared to be illegal or invalid 'for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balaIlce oftbe 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 lienis invalid or unenforceable as to'any part of the Security, the unsecured or partially secured portion of the debt, and all paymen~, 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 8:8 No Mer~er. If title to the Property shall become vested in the Beneficiary, this Deed of TrusUhidthe Iie!l 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 Trustpursuantto the provisions hereof, any leases or subleases then existing and affecting aU or any portion of the Security shall not. be destroyed or ,terminated by application of the law of merger or as a matter of law or as a result of such foreclQsure unless Beneficiary or any purchaser at at1Y such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such -12- .1 270 .' purchaser shalLcollsiituteia'terinination of any lease or suhlease',ullless Beneficiary or such purchaser shall,give written,noticeofterrnination to such tenant6tsubtellant. Sectioni8.9, ,Governing Law, This Deed of Trust shall be'governed by and cOllstrued in accordance with the laws of the~ State of California, SectioncS.lO Gender and Nuniber. In this Deed of Trust the singular shall include the plural and the, masculine shallihelude the feminine and neuter and vice versa, if the context so requires. Section 8,11 Nondisturballce:Agreemenl. In the event of any foreclosure of this Deed of Trust or a transfer in lieu offoreclosure, Beneficiary or other transferee ,shall recognize and not disturb the possession, tenancy; leasehold estate and rights of all tenants and occupants of the Property or any portion thereof;,and' sllall honor and abide by' all of-the terms, covenants and conditions of each lease for the remaining balance of the term or extension thereof with ,the same force and effect as if Benefieiaryor such other transferee were the original lessor under the lease; provided, however, that thetenantis not in default under its.!ease and Beneficiary or such other transferee shall not be (a) liable for any damage, loss or expense arising from any actor omission of any prior lessor (including Trustor) under any lease, '(b) subject to any offsets, abatements, rent reductions or defenses which the tenant may be entitled to assert against anY prior lessor (including Trustor) under ariy.lease, or (c).liableorresponsihle for or with respect to the retention, application and/or return tothe tehant of any security deposit paid to any prior lessor (including Trustor) under any lease, whether or not still held by any prior lessor (including Trustor), unless and until Benefieiary or such other transferee has actually received for its own account as lessor under the lease the full amount'of such security deposit or a credit therefor. Each tenant and occupant of the Property shall, upon any foreclosure of this Deed of Trust or transfer in lieu of foreclosure, he bound to Beneficiary or such other transferee under,' all of the terms, covenants and conditions of the tenant's lease for the remaining balance of the term thereof or extension thereof, with the same force and effect as if Beneficiary or such other transferee were the original lessor under such lease, and the tenantshall attorn to Benefieiaryor such other transferee as its lessor, such attornment to be effective and self-operative without the execution of any further instruments by either party, immediately upon the tenant's receipt of written notice from Beneficiary or such other transferee or from Trustor that,title to the Property has vested in Beneficiary or such other transferee, Rent paid by a tenant or occupant to the transferee after receipt of such notice shall be considered to be rental payment under the lease, IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written, By: Hardy Matthew Ma'tiTravis, as trust e e Travis Family Trust dated November 11, 1993 -13- '. .- ,271 . ' CALlFO,RNIA AlL,;PUR~E ACKN()WLEDGMENT .! I ::::01 fj;j~"';;: 91' beforeme,u~d.4b4~.e.n/J~# A!?/a,y ;/LOhe!, Name and Title of Officer (13 9 , "Jane Doe, Notary Pu6tic") personally appeared ' 8 :.L- Ir , Name(s) ofSigner{s) iperSOnallY known to me - OR ~ 0 proved to me on the basis of,satisfactory evidence to be, the person(s) whose name(s) is/are subscribed to the within iristrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. [, [, [ On [, ~ - -- - -- - -. -- .. --.~ ~_ jl:;JI-;-\-~ A, 3:::',,;--~~"';1 , "f; , Commission" 1147:0- i </'>-~~ -,' . ,.. '.;. .f ~:~~"'- . Notary P~o!;c - C(WiOfflIQ 5; \'~' SO:1 i)legc County ~~". MyComm.'Ex;);'I_~~ .UJ?!, 20Ji ~d~ SS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below isnotrequiied by'law, it, may prove valuabJe:topersons relying on-the document and could prevent fraudulent removal and reattachment ofthis form to another document. Description of Attached Document Title or Type of Document Oed oj / rus.1'" #///) kld/'?! f"/I'/ , d-f.5lfl?mo"'/l -/4/ .L'e/l,r.s Number of Pages: /3 Document Date: Signer(s) Other Than Named Above: I, I' [, [ I' [, Capacity(ies) Claimed bySigner(s) Signer's Name: liArd;.' mdAew / /'/l-tIIS Signer's Name: 'I o Individual o Corporate Officer Title(s): o Partner - 0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: o Individual o Corporate Officer Title(s): o Partner - 0 Limited 0 General o Attorney-in-Fact '1;>c! Trustee o Guardian or Conservator o Other: 1 'I [ I' Irar;I/J ram,/y TrLts-t Signer Is Representing: 1 ,I ,I Top 01 thumb here ~ @ ~ ~ 1 I' [, ~~=='!g(,",,,,,..<,,,,",,,,..g"""""'*'='l;,<,~<:,,,,..=..<,<;..gc..Q"=-==~~~~-=~ Signer Is Representing: @1995 National Notary Association' 8236 Remmel AIle.. P,O. Box 7184 -. Carioga Park, CA 91309-7184 Prod. No. 5907 Reorde' Call Toll-Free 1-800:876-6827 " .... .i < . 272 .' EXHIBIT "A" LEGAL DESCRIPTION That real, property located in the State of California, County of San Diego, City of Poway and described as follows: Parcel A: Parcell of Parcel Map No. 1'5255, in the County of San Diego, State of California, filed in the Office of the County Recorder of San Diego, June 06, 1988. Parcel B: An easement for ingress and egress, over, along and across that portion of Parcel 2 of Parcel Map No. 15255, in the City of Po way, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego, June 6, 1988, delineated as "mutual ingress and egress easeme'nt reserved hereon" . Assessor's Parcel No: 317-190-44 EXHlBIT A