Deed of Trust 2000-0254330
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DOC '.'2000-025'4330
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RECORDING REQUESTED BY:
COMr;16Ny\it~lTH LAND TITLE COMPANY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
MAY
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20003:42
PM
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OFFICIAL RECORDS
I' 6 3 3 SAN.DIEGOcmJNrv RECORDER'S OFFICE
Poway Redevelopment Agency GREGORY J. SlIITH. COUNTY RECORDER
~~~~~~~:~~~;~~!e26~r~~~~:9 -" 1111 " IU" """ ""/I "r F~~~ 4 0.00
2000.0254330
This document is exempt from the payment of a recording fee pursuant to
Government Code'Section 273'83
LEASEHOLD CONSTRUCTION DEED OF TRUST
WITH ABSOLUTE ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS LEASEHOLD 'CONSTRUCTION DEED OF TRUST WITH ABSOLUTE
ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING ("Deed ofTrust"), made as of April 18,2000 is entered into by and between
BROOKVIEW SENIOR HOUSING PARTNERS, a California limited partnership ("Trustor"),
COMMONWEALTH LAND TITLE COMPANY ("Trustee"), and the POWAY
REDEVELOPMENT AGENCY, a public body, corporate and politic ("Beneficiary").
ARTICLE 1. GRANT IN TRUST
1.1 GRANT. For.the purposes of and upon the terms and conditions in this Deed of
Trust, Trustor irrevocably grants, conveys and assigns to Trustee, INTRUST FOR THE BENEFIT
OF BENEFICIARY, WITH-POWER OF SALE AND RIGHT OF ENTRY AND
POSSESSION, all ofTrusior's right, title and interest, whether now owned or hereafter acquired, in
and to that certain realpnJperty located in the City of Po way, County of San Diego, State of
California, described on Exhibit A attached hereto (the "Real Property"), including, but not
necessarily limited to, (i)Trustor'ssubleasehold interest in the ReaJ.Property, including, but not
limited to, that certain subleasehold interest.created by that certain Ground Sublease dated as of April
i8, 2000, by and between San Diego interfaith Housing Foundation, a California'nonprofit
corpo!ation,as Sublessor, and Trustor as Sublessee (the "Ground Sublease");.{ii).allbuildings.aild
otherimprovertlent5 and fixtures now or hereafter located on the Real"Property pursuant to that
certain Ground Lease between the Beneficiary as master lessor.and:San Diego Interfaith Housing
Foundation as'lessee; dated as.ofDecember6, 1999, a memorandum of which was recorded in the
official records of the County Recorder of San Diego County, California, by Instrument No. 1999-
0797116; as.amended by the First Amendment to Ground Lease dated as of April 18, 2000 (as so
amended, the "Ground Lease"), including, but"not limited to, all apparatus, equipment, and
appliances.used 'inthe operation or occupancy of the RealProperty, it being intended by the parties
that all such items shall be conclusivelyconsidered to be a part of the RealProperty, whether or not
attached or affixed to the.Real Property (collectively, the "Improvements"); (iii) any and all of
Trustor's interest iildevelopment rights or credits, air rights, water, water rights and water stock
related to the Real Property, the Ground Sublease or the Improvem~nts (the Real Property, the
Ground Sublease and thdmprovements are collectively referred to. herein as the "Property");
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(iv) any and all ofTriIstor's interest in appurtenances, easements, rights ~ndrights of way
appurtenant or related to the Property; (v) all interest or estate which Tnistor.may"hereafter acquire in
any of the property described above; and (vi) all additions and accretions to,and the proceeds of, any
of the foregoing (all of the foregoing being collectively referred to as the "Subject Property"). The
listing of specific rights or property shall not be interpreted as a limit of general terms.
1.2 ADDRESS. The subject property is located at 13156 Pomerado Road, Poway,
California. HO\yever, neither the failure to designate an address nor any inaccuracy in the address
designated shall affect the validityor priority of the lien of this Deed of Trust on the Subject Property
as'described on Exhibit A.
ARTICLE 2. OBLIGATIONS SECURED
2.1 OBLIGATIONS SECURED. Trustor makes this grant and assignment for the
purpose of securing the following obligations ("Secured Obligations"):
a. Payment to Beneficiary of all sums at any time owing under that certain
Promissory Note ("Note") of evencdate herewith, in the principal amount of One Million Eight
Hundred Fifty-Five Thousand Dollars ($1,855,000) executed by Trustor and payable to the order of
Beneficiary, as lender; and
b. Payment and performance of all covenants and obligations of Trustor under
that certain "Loan Agreement" between Trustor and Beneficiary, of even date herewith; and
c. Payment and performance of all covenants imd obligations of Trustor under
this Deed of Trust; and
d. Payment and performance of all future advances and other obligations that the
then owneLof all or part of the'. Subject Property may agree to pay and/or perfoIin (whether as
principal, surety or guarantor)'for the benefit of Beneficiary, when such future advance or obligation
is evidenced by a writing which recites that it is secured by this Deed of Trust; and
e. All modifications, extensions and renewals of any of the obligations secured
hereby, however evidenced, including, without limitation: (i) modifications of the required principal
payment dates or interest payment dates or both, as the case may be; deferring or accelerating
payment dates wholly or partly; or (ii) moditlcations, extensions or renewals at adifferent,rate of
interest whether or not.in the case of a note, the modification, extension or renewal iSievidenced by. a
new or-additional promissory note or notes.
2.2 OBLIGATIONS. The term "obligations" is used herein in its broadest and most
comprehensive sense and shall be.deemed to include, without limitation, all principal, interest,
prepaymenHharges,(ifany), late charges, other charges, and loan fees at any time accruing or
assessed on any of the Secured Obligations.
2.3 INCORPORATION. All terms of the Secured Obligations and the documents
evidencing. such obligations are incorporated herein by this reference. Any and all persons or entities
who may have or acquire an interest in the Subject Property shall be deemed to have notice of the
terms of the Secured Obligations and to have notice, ifprovided.therein, that: (a) the Note may
permit borrowing, repayment and re.borrowing so that repayments shall not reduce the amounts of
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the Secured Obligations; and (b) the rate of interest on one or more Secured Obligations may vary
from tiineto time.
2.4 SUBORDINATION. The lien ofthis'Deed of Trust shall be subordinate, junior to,
and subject to, the lien securing Trustor's obligations under that loan made to Trustor by Bank of
America Community Development Bank in the amount of Eight Million Six Hundred Forty.Nine
Thousand Four Hundred Ninety Dollars ($8,649,490) (the "Bank of America Loan"). The lien of
this Deed of Trust shall be senior and superior to the loan to the Trustor by the County of San Diego
in the original principal amount of One Million Dollars ($1,000,000) (the "County Loan"), and to the
loan to be made to the Borrower by First Republic Bank, a Nevada corporation, in the original
principal amount of Three Hundred Thousand Dollars ($300,000) (the "AHP Loan").
ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS
3.1 ASSIGNMENT. Trustor,hereby irrevocably assigns to Beneficiary, subject to any
prior assignment to Trustor's lenders, all of Trustor's right, title and interest in, to and under: (a) all
leases and subleases ofthe Suliject'Property or any portion thereof, rill licenses and agreements
relating to the management, leasing or operation of the Subject Property or any portion thereof, and
all other agreements of any kind relating to the use or occupancy of the 'Subject Property or any
portion thereof, whether now existing or entered into after the date hereof ("Leases"); and (b) the
rents, issues, deposits and profits of the Subject Property, including, without limitation, all amounts
payable and all rights and benefits'accruing to Trustor under the Leases ("Payments:'). The term
"Leases" shall also include alLguarantees of and security for the lessees' performance thereunder,
and all amendments, extensions, renewals or modifications thereto which are permitted hereunder.
This is a present and absolute assignment, not an assignment for security purposes only, and
Beneficiary's right tothe-Leases and Payments is not contingent upon, and may be exercised without
possession of, the Subject Property.
3.2 GRANT OF LICENSE. Beneficiary confers upon Trustor a license ("License"),
subject to any prior license.conferred upon Trustor's lenders, to collect and retain the Payments.as
they become due and payable, until the occurrence of a Default (ashereinafter defined). Upon a
Default, the License shall be automatically revoked and Beneficiary may collect and apply the
Payments pursuant to Section 6.4 without notice and without taking possession of the Subject
Property. Trustor hereby irrevocably authorizes and directs the lessees under the Leases to rely upon
and comply with any notice or demand by Beneficiary for the payment to Beneficiary of any rental6r
oJher sums.which may at any time become due under the Leases; or for the performance of any of the
lessees' undertakings under the Leases, and the lessees shall have no right or duty to inquire'as to
whether any Default'has actually occurred or is then existing hereunder. Trustor hereby relieves the
lessees from any liability to Trustor by reason of relying upon and compiying with any such notice or
demand by Beneficiary.
3;3 EFFECT OF ASSIGNMENT. The foregoing irrevocable Assignment shall not
cause Beneficiary to be: (a)a mortgagee in possession; (b) responsible or liable for the control, care,
management or repair of the Subject Property or for performing any ofthe terms, agreements,
undertakings, obligations, representations, warranties, covenants and conditions of the Leases; or
(c) responsible or liable. for any waste committed on the Subject Property by the lessees under any of
the Leases'or any other parties; for any dangerous or defective condition of the SubjeCt Property; or
for any negligence in.the management, upkeep, repair or control of the Subject Property resulting in
loss or injury or death to any Lessee, licensee, cmployee, invitee or other person or entity.
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Beneficiary shail not directly or indirectly be liable to Trustor or any other person or entity as a
consequence of: (i) the exercise or. failure to exercise any"oftherights,remedies.or powers granted
to Beneficiary hereunder;. or'(ij) the failure or refusal of Beneficiary to perform or discharge any
obligation, duty or liability of Trustor arising under the Leases.
3.4 REPRESENT A TlONS AND WARRANTIES. Trustor represents and warrants
that as'ofihe date of this Deed of Trust there are no existing Leases.
3.5 COVENANTS. Trustor covenants and agrees at Trustor's sole cost and expense to:
(a) perform the obligations ofJessor contained in the Leases and ,enforce by all available remedies
performance by the lessees of the obligations of the lessees contained in'the Leases; (b) exercise
Trustor's best efforts to lease all of the apartment units within the-Subject Property at all times upon
the completion OfCOllstructiol1 of the Improvements; (c) deliver,.to Beneficiary fully executed,
counterpart original(s) of each and every Lease if requested to do so; and (d) execute and record such
additional'assignments of'"anyLease'or specific subordinations of any Lease to the Deed of Trust, in
form and substance acceptable to Beneficiary, as Beneficiary may request. Trustor shall not, without
Beneficiary's prior written consent, except as otherwise permitted pursuant to the Loan Agreement:
(i) enter inio any Leases after the date of this Assignment except leases in the ordinary course of
Trustor's business and on the lease.form approved by Beneficiary; (ii) execute any other assignment
relating to any of the Leases; (iii) discount any rent or other sums clue under the Leases or collect the
same in advance, other than to coll~ctrent one (I) month in advanc);' of the time when it becomes
due; (iv) terminate, modifY or amend any ofthe terms of the Leases or in any mannerrelease or
discharge the lessees from any obligations thereunder except in,theordinary course of Trustor's
business; (v) consent to any assignment or subletting by any lessee; or (vi) subordinate or agree to
subordinate anyofthe Leases to any other deed of trust or encumbrance, except as required to obtain
financing for the Subject Property. Any such attempted action in violation of the provisions of this
Section 3.5 shall be null and void. Without in any way limiting the requirement of Beneficiary's
consent hereunder, any sums received by Trustor in consideration of al1ytermination (or the release
or discharge of any lessee) modification or amendment of any Lease Sl1all beapplied.to reduce the
outstanding. Secured Obligations and any such sums received by Trustor shall beheld"in trust by .
Trustor for such purpose.
3.6 ESTOPPEL CERTIFICATES. Within thirty (30) days after written,request by
Beneficiary, Trustor'shall deliver to Beneficiary and to any party designated by Beneficiary estoppel
certificates executed by Trustor and by each of the lessees, in recordable form, certifying (if such be
the case): (a) that the foregoing assignment and the Leases areinfi!ll force and effect; (b) the.date.of
each lessee's most.recent payment of rent; (c) that there are no defenses or offse\s outstanding"or
statil1g'those cliiimeo by Trustor or lessees under the foregoing assignment or the Leases, as the case
may be; and (d)oany otheiinfonTiation reasonably requested by Beneficiary.
ARTICLE 4"SECURITY AGREEMENT AND FIXTURE FILING
4.1 SECURITY INTEREST. Trustor hereby grants and,assigns to Beneficiary, as of
the effective date of the LoanAgreement, a security interest, to secure payment and performance of
all ofthe Secured Obligations, in all of the followi'ng described personal property in which Trustor
now or at anytime hereafter has any interest (coilectively, the "Collateral"):
All goods, b_uilding and other materials, supplies, work in process, equipment,. machinery,
fixtures;.furnitu're, furnishings, signs and other personal property, wherever situated, which
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are or are to be incorporated into, used in connection with, or appropriated for use thereon, (i)
the Real Property described on ExhibitA attached hereto and. incorporated by reference
herein (to the.extentthesame are not effectively made a part.ofthe Real Property pursuant to
Section 1.1 above) or (ii) the improvements constructed,or to be constructed on the Subject
Property, as described in the Disposition and Development Agreement between Trustor and
Beneficiary dated as of June 30, 1998, as amended by the First Amendment to Disposition
and DevelopmentAgreement dated as of June 29, 1999 (which real property and
improvements are, pursuant to Section 1.1 above, collectively referred to herein, along with
the other property described in Section 1.1 above, as the Subject Property); together with all
rents, issues, deposits ,and profitsofthe Subject Property'(to the extent, ifany, they are not
subject to Article III); all inventory, accounts, cash receipts, deposit accounts, accounts
receivable, contract rights, general intangibles, chattel p'aper, instruments, documents, notes,
drafts, letters of credit, insurance policies, insurance and condemnation awards. and proceeds,
any other rights to the payment of money, trade names, trademarks and service marks arising
from or related to the Subject Property or any business now or hereafter conducted thereon
by Trustor; all permits consents, approvals, licenses, authorizations and other rights granted
by, given by or obtained from, any governmental entity with respect to the Subject Property;
all deposits or other security,now or hereafter made with or given to utility companies by
Trustor with respect to the. Subject Property; all advance payments of insurance.premiums
made by Trustor with respect to the Subject Property; all plans, drawings and specifications
relating to the Subject Property; all loan funds held by Beneficiary, whether or not disbursed;
all funds deposited with Beneficiary pursuant to any loan agreement; all reserves, deferred
payments, deposits, accoUlits, refunds, cost savings and.payments of any kind related to the
Subject Property or any portion thereof; together with all replacements and proceeds of, and
additions and accessions to, any of the foregoing; together with all books, records and files
relating to any of the foregoing.
As to all of the above described personal property which is or which hereafter becomes a "fixture"
under applicable law, this Deed ofTrustconstitutes a security agreement and a fixture .filing under
Sections 9105, 9313 and 9402(6)oftheCalifornia Uniform.Commercial Code, as amended or
recodified from time to time, and is acknowledged and agreed to bea "construction mortgage" under'
such Sections. Trustor is the "debtor" and Beneficiary is the "secured party". Beneficiary's security
interest in the Collateral shall be junior and subject to the prior security interest of Trustor's lender(s)
for the Subject Property.
4.2 REPRESENTATIONS AND WARRANTIES. Trustor represents and warrants
that: (a) Trustor has, or will have,. good title to the Collateral; (b) Trustor has not previou5ly'assigned
or encumbered' the Collateral, and no financing statement covering any of the Collateral has been
delivered to any other person. or entity except to construction and permanendenders.approved by
Beneficiary (including the Bank of America Loan, the County Loan and the AHP Loan); and (c)
Trustor's principal place of business is located at the address shown in Section 7.8.
4.3 RIGHTS OF BENEFICIARY. In addition to Beneficiary's rights as a "secured
party" undcrthe California Uniform Commercial Code, as amended or recodified from time to time
("UCC"), Beneficiary may, but shall not be obligated to, atany time without notice and at the
expense of Trustor: (a) give notice to any person or entity of Beneficiary's rights hereunder and
enforce such-rights at law or in equity; (b) insure, protect, defend and preserve the Collateral or any
rights or interests of Beneficiary therein; (c) inspect the Collateral; and (d) endorse, collect and
receive any righttopayment of money owing to Trustor under or from the Collateral.
Notwithstanding the above, in no event shall Beneficiary be deemed to have accepted any property
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other thari cash in satisfaction of any obligation of Trustor to Beneficiary unless Beneficiary shall
make an express written election of said remedy under UCC ~950S; or other applicable law.
4.4 RIGHTS OF BENEFICIARY ON DEFAULT; After the expiration of all
applicable cure periods following receipt of a written notice of default by Trustor following the
occurrence of a Default (hereinafter defined) under this Deed of Trust, then in addition to alLof
Beneficiary'srights as a "secured party" under the UCC or otherwise at law:
a. Beneficiary may (i) upon written notice, require Trustor to assemble any or
all ofthe.Collateral and make it available to Beneficiary at a place designated by Beneficiary; (ii)
without prior notice, enter upon the Subject Property or other place where'any of the Collateral may
be located and take possession of, collect, sell, and dispose of any or all of the Collateral, and store
the same at locations acceptable to Beneficiary at Trustor's expense; (iii) sell, assign and deliver at
any place of'in any lawful manner all or any part of the Collateral and bid and become purchaser at
any such sales; 'and
b. Beneficiary may, for the account of Trustor and at Trustor's expense: (i)
operate, use, consume, sell or dispose of the Collateral as Beneficiary deems appropriate for the
purpose ofperfonning any orali of the Secured Obligations; (ii) enter into any agreement,
compromise, or settlement, including.insurance claims, which Beneficiary may deem-desirable or
proper with respect to any of the Collateral; and (iii) endorse and deliver evidences of title for, and
receive, enforce and collect by lega1 action or otherwise, all indebtedness and obligations now or
hereafter owing to Trustor in connection with or on account of any or all of the CollateraL
Notwithstanding any other provision hereof, Beneficiary shall not be deemed to have accepted any
property other than cash in satisfaction of any obligation of Trustor to Beneficiary unless'Trustor
shall make an express written election of said remedy under UCC ~<)505, or other applic'able law.
4.5 POWEROF ATTORNEY. Trustor hereby irrevocably appoints Beneficiary as
Trustor's attorney-in. fact (such, agency being coupled with.im.iriterest),.and.as such attorney-in. fact
Beneficiary may, without the oblig~'tion to do so, in BenefiCiary's name, or in the name of Trustor,
prepare, execute and file or recordfiriancing statements, continuation, statements, applications for
registration and. like papers necessary to create, perfect or preserve any of Beneficiary's security
interests and rights in or to any of the Collateral, and, upon a Default'hereunder, take any other action'
required of Trustor; orovided,however, that Beneficiary as such attorney.in.fact shall be accountable
only for such funds as are actually received by Beneficiary.
4.6 POSS-"S.~ION AND USE OF COLLATERAL. Except as otherwise provided.in
this Section, Of any other "Loan Documents (as defined in the Loan Agreement), so 10ng,asno.Default
exists under this Deed of Trust, Trustor may possess, use, move, transfer or dispose of any o(the
Collateral in the ordiha'ry'coutse ofTrustor'sbusiness and in accordance with the Loan Agreement
and Disposition and Development Agreement, as amended.
ARTICLE 5. RIGHTS AND DUTIES OF THE PARTIES
5.1 TITLE. Trustor represents and warrants that, except as disclosed to Beneficiary in a
writing which refers to t1iis warranty, Trustor lawfully holds arid possesses valid title to the Subject
Property without limitation on the rightto encumber (except for the master lessor's and sublessor's
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ap'prova] rights fore'ncLimbrances specifically set forth.in theiGround Lease and Ground Sublease,
respectively, and except for the limitations on the right to encumber under the Bank of America
Loan), and that this Deed of Trust is a second lien onthe.subject Property, subordinate only to the
Bank of America Loan.
5.2 TAXES AND ASSESSMENTS. Subject to Trustor's right to in good faith contest
payment oftaxes, Trustor shall pay prior to delinquency all taxes, assessments, levies and charges
imposed by any public or quasi~p)lb]ic authority or utility company which (i) are or which may
become a lien upon or cause a loss in value of the Subject Property or any interest therein, or (ii) are
required to be paid by Trustor pursuant to the Ground Sublease. Trustor shall also pay prior to
delinquency all taxes, assessments, levies and charges imposed byany public authority upon
Beneficiary by reason;ofits interestin'any Secured Obligation.or in the Subject Property, or by
reason of any payment made to' Beneficiary pursuant to any Secured Obligation; provided. however,
Trustor shall' have. no obligation to.pay taxes which may be imposed from time to time upon
Beneficiary and which are measured by and imposed upon Beneficiary's net income.
5.3 TAX AND INSURANCE IMPOUNDS. At Beneficiary's option and.upon its
demand, Trustor, shall, until all Secured Obligations have been paid iI) full, pay to Beneficiary
monthly, annually or as otherwise directed by Beneficiary an amount estimated by Beneficiary to be
equal to: (a) all taxes, assessments. and levies imposed by any public'orquasi.public authority or
utility company which are or may become a lien upon the Subject Property (or which are required to
be paid by Trustor pursuant. to the Ground Sublease) and will become dueJor the tax year during:
which such payment is so directed; and (b) premiums for fire, other hazard ,and mortgage insurance
next due. If Beneficiary determines that any amounts paid by Trustor. are insufficient for the
payment in full of such taxes, assessments, levies and/or insurance premiums, Beneficiary shall
notify Trustor of the increased amounts required to pay a]]"amounts due, whereupon Trustor.shalLpay
to Beneficiary within.thirty (30) days thereafter the additional amountas stated in Beneficiary's
notice. All sums so paid sl1a]]'bear interest at a minimum rate'eq\la] to the prime rate of interest
established from time to time by the Federa] Reserve Bank in San Fra]1cisco, and Beneficiary shall,
unless Trustor is otherwise in Defaulthereunder or under any'Secured Obligation, apply said funds to
the paymentof"or at thesoie option of Beneficiary release said funds to Trustor for the application to.
and payment of, such sums, taxes, assessments, levies, charges, and insurance premiums. Upon
Defau]t by Trustor hereunder. or under any Secured Obligation, Beneficiary may apply all.orany part
of said sums to any Secured Obligation and/or to cure such Default, in which event Trustor shall be
required to restore all amounts so applied, as well as to cure'.any other events or conditions of Defau]t
not cured by such application. Upon assignment of this Deed of Trust; Beneficiary shall have the
'right:toassign'a]Lamounts collected and in its possession to,its assignee whereupon:Beneficiary~nd
its Trustee shall.be released from allliabi]ity with respect thereto. Within ten (10) days following
full repaymenrofthe,:SecuredObligations (other than full repayment of the. Secured Oil1igations as a
consequence ofa foreclosure or conveyance in lieu of foreclosure of the liens and security interests
securing the Secured Obligations) orat such earlier time as Beneficiary may eleCt, the balance of all
amounts collected and in Beneficiary's possession shall be paid to Trustor and no other party shall
have any right or claim thereto.
5.4 PERFORMANCE OF SECURED OBLIGATIONS. Trustor shall promptly pay
and perform each Secured.Obligation when due.
5.5 I.;IENS, ENCUMBRANCES AND CHARGES. Trustor shall immediately
discharge any lien not approved by Beneficiary in writing that has or may attain priority over this
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Deed of Trust, subjecHo the requirements of the L.oan Agreement, Ground Lease and Ground
Sublease with respect to mechanic's liens. Trustor shallpaywhen due all obligations secured by or
reducible to .liens' alld encumbrances which shall now or hereafter- encumber-or appear to encumber
all or any part .of the Subject Property or any interest therein, whether senior .or subordinate hereto.
5.6 DAMAGES; INSURANCE AND CONDEMNA nON PROCEEDS.
a. The following (whether now existing or hereafter arising) are all abs.olutely
and irrevocably assigned by Trust.ottoBeneficiary and, at the request ofBene'ficiary, shall be paid
directly to Beneficiary: (i) all awards of damages and all other compensation payable directly or
indirectly by reason ofa condemnation or prop.osed condemnation.for public or private use affecting
all or any part of, or any interest in, the Subject Property; (ii) all other claims and awards for damages
to, or decrease in value of, all or any part of, or any interest in,.the Subject Property; (iii) all proceeds
of any insurance policies payable by. reason of loss sustained to all of any part of the Subject
Property, and (iv) all interest which may accrue on any of the foregoing. Beneficiary agrees to
deposit all such monies received in an interest bearing account, subject t.o applicable law regarding
public agency investments. Subject to applicable law, and without regard to any requirement
contained in Section 5.7(d), Beneficiary may at its discretion apply all or any of the proceeds it
receives to its expenses in settling, prosecuting or defending any claim and may apply the balance to
the Secured Obligations in any order, and/or Beneficiary may release all .or any part of the proceeds
to Trustor up.onany conditions Beneficiary may impose. Beneficiary may commence, appear in,
defend or prosecute any assigned claim .or action and may adjust, compromise, settle and c.ollect all
claims and awards assigned to Beneficiary; provided, however, in no event shall Beneficiary be
responsible for any failure to c.ollect any claim or award, regardless of the cause ofthe failure.
b. At its reasonable option, Beneficiary may permit insurance or condemnation
proceeds held by Beneficiary to be used for repair or restoration but may condition such application
upon reas.onable c.onditions,.including, with.out limitation: (i) the deposit with Beneficiary .of such
additional funds which Beneficiary determines are needed to pay all costs of the' repair or restoration,
(including, without. limitation, taxes, financing charges, insurance and rent during the repair period);
(ii) the. establishment of an arrangement for lien releases and disbursement of funds acceptable to
Beneficiary; (iii) the delivery to Beneficiary of plans and specifications for the work, a c.ontract for
the work signed by a contractor acceptable to Beneficiary, a cost.breakdown for the work and a
payment and performance bond for the work, all of which shall be acceptable to Beneficiary; and (iv)
the delivery to Beneficiary of evidence acceptable to Beneficiary (aa) that after completion of the
work the income from the Subject Property will be sufficient to pay all expenses and debtseryice for
the Subject Property; (bb) of the continuation of Leases acceptable to and required by Beneficiary;
(cc}that upon completion of the w.ork,.the size, capacity and total value of the Subject Property will
be aflea5t'~s great as it was before.the damage or condemnation occurred; (dd) that there has been no
material adverse'change in the financial condition or credit of Trustor since the date of this Deed of
Trust; and (ee) of the satisfaction of any additional conditions that Beneficiary may reasonably
establish to protect its security. Trustor hereby acknowledges.thatthe conditions described above are
reasonable, and; if such conditi.ons have not been satisfied within thirty (30) days of receipt by
Beneficiary .of such insurance or condemnation proceeds, then Beneficiary may apply such insurance
or condemnation proceeds to pay down principal of the Secured Obligations in such order and
amounts as Beneficiary in its sole discretion may choose.
5.7 MAINTENANCE AND PRESERV A nON OF THESUBJECT PROPERTY.
Trustor covenants, subject to the provisions of the Loan Agreement: (a) to insure the Subject
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DOCSOC\7J I 343v] \22345.0069
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.
7641
Property againstsuch risks as Beneficiary may reasonably reqpireand, at Beneficiary's request, to
provide evidence of.such insurance to Beneficiary, and to comply witl1 the requirements of any
insurance companies insuring the Subject Property; (D) to keep the,SubjectPropertyingood
condition and repair; (c) not to remove or demolish the Subject Property or any part thereof, not to
alter, restore or add to the Subject Property and not to initiate or acquiesce in any changein any
zoning or other land classification which affects the Subject Property without Beneficiary's prior
written consent (other than as set forth in the approved plans and specifications for the construction
and development of the improvements on the Real Property); (d) to complete or restore promptly and
in good and workmanlike manner the Subject Property, or any part thereof which may be damaged or
destroyed, without regard to whether 'Beneficiary elects to require that insurance proceeds be used to
reduce the Secured Obligations as provided in Section.5.6; (e) to comply with all laws, ordinances,
regulations and standards, ahd.all covenants, conditions, restrictions. and equitable servitudes,
whether public or private, of every kind and character which affect 'the Subject Property and pertain
to acts committed or conditions existing thereon, including, without limitation, any work, alteration,
improvement or demolition mandated by such laws, covenants or requirements; (f) nono commit or
permit waste of the Subject..Property; and (g) to do all other acts which from the character or use of
the Subject Property may be reasonably necessary to maintain and preserve its value.
5.8 DEFENSE AND. NOTICE OF LOSSES, CLAIMS AND ACTIONS. AtTrustor's
sole expense, Trustor shall proteCt, preserve and defend the Subject Property and Trustor's title to
and right of possession of the Subject Property, the security hereof and the rights and powers of
Beneficiary and Trustee hereunder against all adverse claims. Trustor shall give Beneficiary and
Trustee prompt notice in writing of the assertion of any claim, of the filing of any action or
proceeding, of the occurrence of any damage to the Subject Property and of any condemnation offer
or action.
5.9 ACCEPTANCE OF TRUST; POWERS AND DUTIES OF TRUSTEE. Trustee
accepts this trust when this Deed of Trust is recorded. From time to tiineupon written request of
Beneficiary and presentation of this Deed of Trust or a certified copy thereof for endorsement, and
without affecting the personal liability of any person or entity for payment of any indebtedness or
performance of any" obligations secured hereby, Trustee may, without liability therefor and without
notice: (a) reconvey all or any part of the Subject Property; (b) consent to the making of any map or
plat"thereof; and (c) join inany'grant of easement thereon, any declaration of covenants and
restrictions, or any extension agreement or any agreement subordinating the lien or charge of this
Deed of Trust. Except as may be required by applicable law, Trustee or Beneficiary may from time
to time apply to any court of cOlppetent jurisdiction for aid and direction in the execution of the trust
'hereunder and the enforcement of the rights' and remedies available hereunder, and may obtain orders
or decrees directing or confirming or approving acts in the execution of said trust and the
enforcement of said remedies. Trustee has no obligation to notify any party of any pending,sale or
any action or proceeding, including, without limitation, actions in which Trustor, Beneficiary or
Trustee shall be a party unless held or commenced and maintained by Trustee under this Deed of
Trust. Trustee shall hot be obligated to perform any act.required of it hereunder unless the
performance of the act is requested in writing and Trustee is reasonably indemnified and held
harmless against loss, cost, liability or expense.
5.10 COMPENSATION; EXCULPATION; INDEMNIFICATION.
a. Trustor shall pay Trustee's fees and reimburse Trustee for expenses in the
administration of this trust, including reasonable attorneys' fees. Trustor shall pay to Beneficiary
9
DOCSOC\731343v] \22345.0069
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.
7642
reasonable compensation for services rendered concerning this Deed of Trust, including without limit
any statement of amounts owing under any Secured Oliligation, Beneticii)ryshallnot directly or
indirectly be liable to Trustor or any other person or entity as a consequence of (i) the exercise of the
rights, remedies or powers granted to Beneficiary in this Deed of Trust; (ii) the failure or refusal of
Beneficiary to perform or discharge any obligation or liability of Trustor under any agreement related
to the Subject Property or under this Deed of Trust; or (iii) any !ossisustainedby Trustor or any third
party resulting from Beneficiary's failure to sell, lease or sublease the SubjectProperty after a
Default (hereinafter defined) or from any other act or omission of Beneficiary in managing the
Subject PropertY'after a Default, unless the loss is caused by the negligence or willful misconduct of
Beneficiary.
b. Trustor indemnifies Trustee and Beneficiary against, and holds Trustee and
Beneficiary harmless from, allloss(:s, damages, liabilities, c1aims,causes of action, judgments, court
costs, reasonable attorneys' fees 'and other legal expenses, cost of evidence of title, cost'of evidence
of value, and other expenses which either may suffer or incur: (i) by reason of this Deed of Trust; (ii)
by reason of the execution of this.trust or in performance of any act required or permitted hereunder
or by law; (iii) as'aresult of.any fliilure of Trustor to perform Trustor's obligations; or (iv) by reason
of any alleged obligation or undertaking on Beneficiary's part to perform or discharge any of the
representations, warranties, conditions, covenants or other obligations contained in any other
document related to the 'Subject Property, unless the loss is caused,bythe negligence or willful
misconduct of Trustee or Beneficiary, as applicable. The aboveoiJligation of Trustor to indemnify
and hold harmless Trustee and Beneficiary shall survive the release and cancellation of the Secured
Obligations and the release and reconveyance or partial release and reconveyance of this Deed.of
Trust. Notwithstandingthe 'foregoing, however, under no circumstances shall these' indemnity
obligations of Trustor include any' obligation for payment of punitive damages assessed against
Beneficiary or Trustee or their officers, employees, agents or representatives.
c. Trustor shall pay all amounts and indebtedness arising under this Section 5. I 0
immediately upon demand by Trustee or Beneficiary together with interest thereon from the date the
indebtedness arises at the rate of interest then applicable to the principal balance of the Note as
specified therein.
5.11 SUBSTITUTION'OF TRUSTEES. From time to time, by a writing, signed and
acknowledged by Beneficiary and recorded in the Office of the Recorder of the County in which the
Subject Property. is situated, Beneficiary may appoint another trustee to act in the place and stead of
Trustee or any successor. Such writing shall set forth any information required by law. The
recordation of such instrument of substitution shall discharge Trustee herein named and shall appoint
the,new trustee aSithe trustee hereunder with the same effect asif originally named Trustee.herein. A
writing. recorded pursuant to the provisions of this Section 5.11 shall be conclusive proof o(the'
proper substitution of such new Trustee.
5.12 DUE ON'SALE OR ENCUMBRANCE. Other than pursuant to the County Loan
and the AHP Loan, if the Subject Property or any interest therein shall be sold, assigned, leased,
subleased, transferred (including, without limitation, through sale or transfer of a majority or
controlling interestofthe.corporatestock or general partnership interests or limited liability company
interests of Trustor), mortgaged, collaterally assigned; or further encumbered (other than leases cif
individual apartnientunits within the Improvements), whether directly or indirectly, whether
voluntarily, 'involuntarily or by operation oflaw, withoutthe prior written.consent of Beneficiary,
10
DOCSOC\73134Jv I \22345.0069
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.
T~IEN Beneficiary, i'n its sole discretion, may declare all Secured ~b~t~ons immediately due and
payable.
5.13 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL
SECURITY. Without notice to or the consent, approval or agreement of any persons or entities
having any Interest at any time in the Subject Property or in any manner obligated under the Secured
Obligations other than Trustor ("Inten!stedParties"), Beneficiary may, from time to time, release any
person or entity from liabiiityfor the payment or performance of any Secured Obligation, take any
action or make any agreement extending the maturity or otherwise' altering the terms or increasing
the amount of any Secured Obligation, or accept additional security or release all or a portion of the
Subject Property and other security for the Secured Obligations. None of the foregoing actions shall
release or reduce the personal liability of any of said Interested Parties, or release or impair the
priority of the lien of this Deed of Trust upon the Subject Property.
5.14 RECONVEYANCE.. Upon Beneficiary's written request, and upon surrender to
Trustee for cancellation of this Deed of Trust or a certified copy thereof and any note, instrument, or
instruments setting forth all obligations secured hereby, Trustee shall reconvey, without warranty, the
Subject Property or that portion thereof then held hereunder. To the extent permitted by law, the
reconveyance may describe the grantee as "the person or persons legally entitled thereto" and the
recitals of any matters or facts in any reconveyance executed hereunder shall be conclusive proof of
the truthfulness thereof Neither Beneficiary nor Trustee shall have any duty to determine the rights
of persons or entities claiming to be rightful grantees of any reconveyance. When the Subject
Property has been fully reconveyed, the last such reconveyance shall operate as a reassignment of all
future rents, issues and profits ofthe Subject Property to the person or persons legally entitled
thereto.
5.15 SUBROGATION. Beneficiary shall be subrogated to the lien of all encumbrances,
whether released of record or not, paid in whole or in part by. Beneficiary pursuant to this Deed of
Trust or by the proceeds of any loan secured by this Deed of Trust.
5.16 RIGHT OF INSPECTION. Beneficiary, its agents and employees, may enter the
Subject Property at any reasonable time for the purpose of inspecting the Subject Property and
ascertaining Trustor's compliance with the terms hereof
5.17 .SUBLEASEHOLD MATTERS. This Deed of Trust is subject to the requirements
of the 9round Lease and the Ground Sublease.
a. Termination or Modification of Sublease. Without the express written
con'sent of Beneficiary, which consent may be granted or denied in Beneficiary's sole and absolute
discretion, Trustor shall not terminate, cancel or surrender the Ground Sublease or the subleasehold
estate or interest in or to the, ReaLProperty. Without the express written consent of Beneficiary,
which consent shall not unreasonably be withheld, Trustor shall not modify, change, supplement,
alter or amend the Ground Sublease, either orally or in writing. Any termination, cancellation,
surrender mo.dification, change, supplement, alteration or amendment of the Ground Sublease
without the prior written consent thereto by Beneficiary shall be void and of no force or effect.
Beneficiary's.waiverofthe"right to consent to one modification, change, supplement, alteration or
amendment of the Ground Sublease shall not be deemed to bea waiver of the right to require consent
to other, future or successive modifications, changes, supplements, alterations or amendments of the
Ground Sublease. As further security for the repayment of the Secured Obligations and for the
11
DOCSOC\731343v 1\22345.0069
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, ('644
performance oRthe ccivenantscontained herein'or in the Ground Sublease, Trustor hereby.assigns to
Beneficiary all.ofTtusior's.rights, privileges and prerogatives as Jessee under the Ground .Sublease to
terminate, canc,el, surrender, modify, change, supplement, alter orainerid the'Ground Sublease. This
assignment shall remain in effect until all obligations secured by this Deed of Trust are satisfied in
full.
b. Release of Obligations. No release or forbearance of any'ofTrustor's
obligations under the Ground Sublease, pursuant to the Ground Sublease or otherwise, shall release
Trustor from any ofits:obligations.undeFthis Deed ofTrust,jncluding its obligations with respect to
the payment of rent as provided for in the Ground Sublease and the performance of all of the terms,
provisions, covenants, conditions and agreements containedinthe,Ground Sublease, to be kept,
performed and complied with by the lessee under the Ground' Sublease.
c. Performance Of Ground Sublease. Trustor covenants and agrees to pay
when due all rents and other payments and perform all covenantsand:agreements contained in the
Ground Sublease and.not to surrender; cancel, assign or sublease the Ground Sublease, nor take any
other action that would effect or jJennit the termination of the Ground.Sublease. Trustor covenants to
furnish to Beneficiary, upon request, within thirty (30) days.after the date upon which such rents or
other payments are due and payable by Trustor, receipts or other evideiicesatisfactory to Beneficiary
evidencing the payment thereof. Beneficiary shall have the right, but not the obligation, to cure any
default by Trustor under the Ground Sublease and to perform any or all of Trustor's obligations
thereunder. All sums expended byBeneficiary in curing any,such default shall be secured hereby
and shall be.immediatelydue and payable without demand or notice Trustor agrees that it shall
promptly notify Beneficiary of any circumstances which giverisetoa.right on the part of Trustor
under the Ground Sublease to make or participate in any decision or determination which may affect
the Real Property. Trustor hereby assign~ to Beneficiary all oTits rights to make or participate in any
such decision or determination. This assignment shall remain in effect until all obligations secured by
this Deed of Trust are satisfied in full.
d. Representations of Trustor. No consent,. approval or agreement of any
person, entity, party, court or governmental agency is required to be obtained by Trustor in
connection with the execution and delivery of this Deed of Trust or the.performance of the terms
hereof or the consummation.ofthetransactions provided for,herein,that has not already been
obtained as of the date hereof. Consummation of the transactions contemplated by this Deed of Trust
shall not cause a default or an eventthat, with notice or the lapse,of time or both, would constitute a
default, breach or violation of any agreement to which Trustor is a party or by which its property is
bound.
e.' Notices. If Trustor receives any notice of default or alleged defaultunder the
Ground Sublease or.any other material notice, demand, complaint or oiher communication relating to
the Ground Sublease or the Real Property, then Trustor shall immediately deliver such notice,
demand, complaint or other communication to Beneficiary. Ifeither Trustor or the lessor under the
Ground Sublease defaults or allegedly defaults under the Ground Sublease, then Trustor shall
immediately deliver notice of such'default or alleged default to Beneficiary.
f. Joinder of Lessor. If any lender requires Lessor's joinder in a note
secured by a deed of.trust or the deed of trust itself no personal liability shall attach or personal
judgment be obtained against Lessor by reason of its joinder in such note secured by deed of trust or
the deed of trust itself. Lessor shall not be required to encumber or subordinate its fee interest.
12
DOCSOC\731343v 1\22345.0069
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7645
ARTICLE 6. DEFAULT PROVISIONS
6.1 DEFAULT. For.all purposes hereof, the term "Default" shall mean (a) at
Beneficiary's option, the failure of Trustor to make any paytllentofprincipal or' interest on the Note
or to pay any other amount due hereunder or under the Note when the.same is due and payable,
within ten {lO)days after receipt of written notice from Beneficiary; or (b) the failure of Trustor to
perform any n<Jn"monetary obligation hereunder, or the failure to be true of any representation or
warranty of Trustorcontained herein and the continuance of such failure for thirty (30) days after
notice from Beneficiary (or such.longer grace period as may be provided pursuant to the Loan
Agreement for, such failure or the'exi5tenceof any default under the Loan Agreement), or ifit is not
reasonably practicable to cure or remedy such failure within such thirty (30) day period; then Tmstor
shall ,not be deemed to be in de"fault if Trustor shall commence such cure within such thirty (30)day
period and thereafter. diligently prosecutes such cure to completion.
6.2 RIGHTS AND REMEDIES. At any time after the expiration of all cure periods
after thereceipt by Trustor ofa written,notice of default following aDefault, Beneficiary and Trustee
shall each have all' the following'rights and remedies:
a. With or without notice, to declare all Secured Obligations immediately due
and payable;
b. With or without notice, and without releasing Trustor from any Secured
Obligation, and without becoming a mortgagee in possession, to cure any breach or Default of
Tmstor and, in connection therewith, to enter upon the Subject Property and do such acts and things
as Beneficiary or Trustee deem necessary or desirable to protectthe'security hereof, including,
without limitation: (i) to appear in and defend any action or proceeding purporting to affect the
security of this Deed ofTrust'or,the rights or powers of Beneficiary or Trustee under this Deed of
Trust; (ii) to pay, purchase, contest or compromise any encumbrance, charge, lien or claim of lien
which, in the solejudgment'ofeitherBeneficiary or Trustee, is or may be,seniorin priority to. this
Deed of Trust, the judgment-of Beneficiary or Trustee being conclusive as between the.parties
hereto; (iii) to obtain insurance; (iv) to pay any premiums or charges with respect to insurance
required'to be. carried under this Deed of Trust; or (v) to employ counsel,. accountants, contractors
and other appropriate persons.
c. To commence and maintain an action or actions in any court of competent
jurisdiction to foreclose this instrument-as a mortgage or to obtain specific enforcernent of the
covenants of-Trustor hereunder, and Trustor agrees that such covenants shall be specifically
enforceable byinjl!nctionor any other appropriate equitable remedy and that for the.purposes'of any
suit brought underthis suhparagraph, Trustor waives the defense'of laches'and any applicable statute
of limitations;
d. To apply to a court of competent jurisdiction for mid obtain appointment of a
receiver of the Subject Property as a matter of strict right and without-regard to the adequacy of the
security for the repayment,ofthe Secured Obligations, the existence of a declaration that the Secured
Obligaiions are immediately due and payable, or the filing of a notice of default, and Trustor hereby
consents to such appointment;
e. To enter upon, possess, manage.and operate ,the Subject Property or any part
thereof, to take,and possess all documents, books, records, papers and accounts of Trustor or the then
13
DOCSOC\7 31343, I \22345.0069
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.
7646
owner of the Subject Propelty,to make, terminate, enforce or modifyLeases,ofthe Subject Property
upon such terms and conditioJ1s as Beneficiary deems proper, to makerepairs, alterations and
improvements to the Subject Property as necessary, in Trustee's,or Beneficiary's sole judgment, to
protect or enhance the security hereof;
f. To execute a written notice of such Default and of its election to cause the
Subject Property to be sold to satisfy the Secured Obligations. As a condition precedent to any such
sale, Trustee shall give and record such notice as the law then requires. When the minimumperiod
of time required by law'after such notice has elapsed, Trustee, without notice to or demand upon
Trustor except as required by law, shall sell the Subject Property.aHhetime and place of sale fixed
by it,in the notice of sale, at one ,or, sev.eral sales, either as a whole or in separate parcels and,in such
manner and order, all as Beneficiary in its sole discretion may determine, at public auction to the
highest bidder for cash, in lawfulmoney of the United States, payable at time of sale. Neither
Trustor nor any other person or entity other than Beneficiary shall have the right todirectthe order in
which the Subject Property is,s'old. Subjectto requirements and limits imposed by law, Trustee may
from time to time postpone sale of all or any portion of the Subject Property by public announcement
at such time and place of sale, Trustee shall deliver to the purchaser at such sale a deed conveying
the Subject Property or portion thereof so sold, but without any covenant or warranty, express or
implied. The recitals in the deed of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person or entity; including Trustee, Trustor or Beneficiary may purchase at the sale;
g. To resort to and realize upon the security hereunder and any other security
now or later held by Beneficiary concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken non-judicial proceedings, or both, and to apply the
proceeds received upon the Secured Obligations all in such order and,manner as Trustee and
Beneficiary, or either of them, determine in their sole discretion.
h. Upon sale of the Subject Property at any judicial or non-judicial foreclosure,
Beneficiary may credit bid (as determined by Beneficiary in its sole and absolute discretion) all or
any portion of the Secured Obligations. In determining such credit bid, Beneficiary may;, butis not
obligated to, take into account all or any of the following: (i) appraisal~ of the Subject Property as
such appraisals may be discounted or adjusted by Beneficiary in its sole and absolute underwriting
discretion; (ii) expenses and costs incurred by Beneficiary with respect to the Subject Property prior
to foreclosure; (iii) expenses imd costs which Beneficiary anticipates will be incurred with respect to
the Subject Property after foreclosure, but prior to resale, including, wiihout limitation, costs of
structural reports and other due diligence, costs to carry the Subject Property prior to resale, costs of
resale (e.g. commissions, attomeys'fees, and taxes), costs of any hazardous materials clean-up and
monitoring"costs..ofdeferred maintenance, repair, refurbishment and retrofit, costs of defending or
settling litigation affecting the Subject Property, and lost opportunity costs (if any), including the
time value of money during any anticipated holding period by Beneficiary; (iv) declining trends in
real property values generally and with respect to properties similar to the Subject Property; (v)
anticipated discounts:upon resale of the Subject Property as a distressed or foreclosed property; (vi)
the fact of aclditional collateral (if any), for the Secured Obligations; and (vii) such other factors or
matters'that Beneficiary (in its sole and absolute discretion) deems appropriate. In regard to the
above, Trustor acknowledges and agrees that: (w) Beneficiary is not required to use any or all of the
foregoing factors todetermiIie,the amount of its credit bid; (x) this Section does not impose upon
Beneficiary,any additional obligations that are not imposed by law at the time the credit bid is made;
(y)the amount of Bene'ficiary's credit bid need not have,any relation to any loan-to.value ratios
previously discussed between Trustor and Beneficiary; and (z) Beneficiary's credit bid may be (at
14
DOCSOC\ 73] 343\' I \22345.0069
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764.
BeneficiarY's'sole and.absolute discretion) higher or lower than anyappniised value of the Subject
Property.
6.3 APPLICATION OF FORECLOSURE SALE PROCEEDS. After deducting all
costs, fees and expenses of Trustee, and of this trust, including, without limitation, cost of evidence
of title and attorneys' fees in connection with sale and costs and expenses of sale and of any judicial
proceeding wherein such sale may be made, Trustee shall apply all proceeds of any foreclosure sale:
(a) to payment of all sums expended'by Beneficiary under the terms hereof and not then repaid, with
accrued interest at the rate of interest specified in the Note to be applicable on orafter maturity or
acceleration ofthe Note; (b) to payment of all other Secured Obligations; and (c) the remainder, if
any, to the person or persons legally entitled thereto.
6.4 APPLICATION OF OTHER SUMS. All sums received by Beneficiary under
Section 6.2 or Section 3.2, less all costs and expenses incurred by Beneficiary or any receiver under
Section 6.2 or Section 3.2, inCluding, without limitation, attorneys' fees, shall be applied in payment
of the Secured Obligations in.such order as Beneficiary shall determine in its sole discretion;
provided. however, Beneficiary shall have no liability for funds not actually received by Beneficiary.
6.5 NO CURE OR WAIV'ER. Neither Beneficiary's nor Trustee's nor any receiver's
entry upon and taking possession of all or any part of the Subject Property, nor any collection of
rents, issues, profits, insurance proceeds, condemnation proceeds or damages, other security or
proceeds of other security, or other sums, nor the application of any collected sum to any Secured
Obligation, nor the exercise orfailure to exercise of any other right or. remedy by Beneficiary or
Trustee or any receiver shall cure or waive any breach, Default or notice of default under this Deed
of Trust, or nullify the effect of any notice of default or sale (unless all Secured Obligations then due
have been paid and performed and Trustor lias cured all other defaults), or impair the status of the
security, or prejudice Beneficiary or Trustee in the exercise of any right or remedy, or be construed
as an affirmation by Beneficiary of any tenancy, lease or option or a subordination of the lien of this
Deed of Trust.
6.6 PAYMENT OF COSTS, EXPENSES AND ATTORNEYS' FEES. Trustor agrees
to pay to Beneficiary immediately and without demand all costs and expenses incurred by Trustee
and.Beneficiary pursuant to Section 6.2 (including, without limitation, court costs and reasonable
attorneys' fees, whether incurred in litigation or not) with interest from the date of expenditure until
said sums have been paid at the rate of interest then applicable to the principal balance of the Note as
specified therein. In addition, Trustor shall pay to Trustee all Trustee's'fees hereunder and shall
reimburse Trustee,for all expenses incurred in the administration of this trust, including, without
limitation, any reasonabJeattorneys' fees.
6.7 POWER TO FILE NOTICES AND CURE DEFAULTS. Trustor hereby
irrevocably appoints Beneficiary and its suc.cessors and assigns, as its attorney-in. fact, which agency
is coupled with an interest, (a)to'execute'and/or record any notices of completion, cessation oflabor,
or any other notices that Beneficiary'deems appropriate.to protect Beneficiary's interest, (b) upon the
issuance of a deed pursuant to the foreclosure of this Deed ofTrust.orthe delivery of a deed in lieu of
foreclosure, to execute.allinstruments of assignment or further assurance with respect to the Leases
and Payments in favor of the, grantee of any such deed, as may be necessary or desirable for such
purpose, (c) to prepare, execute and file or record financing statements, continuation statements,
applications for registration and like papers necessary to create, perfect or preserve Beneficiary's
security interests and rights in or to any of the Collateral, and (d) upon the occurrence of an event, act
IS
DOCSOC\7J I 343vl \22345.0069
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"'6
. . . . ' 48
or omission which; with notice or passage of time or both, would constitute a Default, Beneficiary
may perform any obligation of Trustor hereunder; provided. however, that: (i) Beneficiary as such
attorney-in-fact shall'only be accountable for such funds as are actually received by Beneficiary; and
(ii) Beneficiary shall not be liable to Trustor or any other person or entity for any failure to act under
this Section.
6.8 NO PERSONAL LIABILITY. In the evcnt of any default under the terms of the
Loan Agreement, the Note or this Deed of Trust, the sole recourse of the Beneficiary for any and all
such defaults shall be by judicial foreclosure or by the exercise'of the trustee's power of sale, and
Trustor and its partners'shall not be personally liable for the payment of the Note or for the payment
of any deficiency established. after judicial foreclosure or trustee's,s~le; provided, however, that the
foregoing shall not in any way affect any rights the Beneficiary may have (as a secured party or
otherwise) hereunder to. recover. directly from Trustor any amounts secured by this Deed of Trust, or
any funds, damages or costs (including:.without limitation reasonable attorneys' fees and.cost5)
incurred by Beneficiary as a'result offniud, negligence, misrepresentation or waste, and.anycosts
and expenses incurred by Beneficiary in connection thereof (including without limitation' reasonable
attorneys' fees and costs).
ARTICLE 7. MISCELLANEOUS PROVISIONS
7.1 NO MERGER. No merger shall occur as a result of Beneficiary's acquiring any
other estate in, or any other lien on, the Subject Property'unless Beneficiary consents to.a.mergedn
writing. I(both the lessor' sand I~ssee's estate under any lease or any portion thereof which now or
hereafter constitutes a part of Subject Property shall at any time become vested in one owner, this
Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the
. . > .
doctrine of merger unless Beneficiary so elects as evidenced by recording a written declaration so
stating, and, unless and untii Beneficiary so elects, Beneficiary shall continue to have and enjoy all of
the rights and privileges of Beneficiary as to the separate estates. In addition, upon-the foreClosure.of
the lien created by this Deed ofTfust on the Subject Property pursuanfto.the provisions hereof, any
leases or subleases then existing and affecting all or any portioilof the Subject Property 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 foreclosure unless Beneficiary or any purchaser at suchforeclosure'sale 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 thereof to such tenant or
subtenant
7.2 WAIVER OF MARSHALLING RIGHTS. Trustor, for itself and for all parties
claiming through 'or uiloerTrustor, and for all parties who may'acquire a lien on or interest in the
Subject Property, hereby waives all rights to have the Subject Property and/or any other property,
including; without limitation, the Collateral, which is now or later may be security for any Secured
Obligation.("0.ther Property") marshaled upon any foreclosure of this Deed of Trust or on a
foreclosure of any other security for any of the Secured Obligations. Beneficiary shall have the right
to sell, and'any court in which foreclosure proceedings may be brought shall have the right to order a
sale of, the Subject Property and any or all of the Collateral or Other Property as a whole or in
separate parcels, in any order that Beneficiary. may designate.
7.3 RULES,OFCONSTRUCTION. When the identity of the parties or other
circumstances make'it appropriate the masculine gender includes the feminine and/or neuter, and the
16
DOCSOC\73] 34Jv] \22345.1)069
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,
1649
singular numberincludes the. plural. The term "Subject Property" means all and any part of the
Subject Property and any,interesf in the Subject Property.
7.4 SUCCESSORS IN INTEREST. The;terms, covenants, and conditions herein
contained shall be binding upon and inure to the benefit of the heirs, successors and assigns of the
parties hereto; provided. however, that this Section 7.4 does not waive or modify the provisions of
Section 5.12.
7.5 EXECUTION IN COUNTERPARTS. This Deed of Trust may be executed in any
number of counterparts, each of which, when executed and delivered to Beneficiary, will be deemed
to be an original and all of which, taken together, will be deemed to be one and the same instrument.
7.6 CALIFORNIA LAW. This Deed of Trust shall be construed in accordance with the
laws of the State of California, except to the extent that Federal laws preempt the laws of the State of
California.
7.7 INCORPORATION. Exhibit A and Schedule I, all as attached, are incorporated
into this Deed of Trust by this reference.
7.8 NOTICES. All notices or other communicationsrequired or permitted to be given
pursuant to the provisions of this Deed of Trust shall be in writing and shall be considered as
properly given if delivered personally or s~nt by first class U.S. mail, postage prepaid, except that
notice of a Default may be sent by certified mail, return receipt-requested, .or by Overnight Express
Mail or by overnight commercial courier service, charges prepaid. Notices so sent shall be effective
three (3) days after mailing, if mailed by first class mail, and otherwise upon receipt at the addl'esses
set forth below. For purposes of notice, the addresses of the parties shall be:
Trustor:
Brookview Senior Housing Partners
c/o Brookview Interfaith Housing Corporation
2130 Fourth Avenue
SanDiego, California 92101
Attention: Matthew B. Jumper
Beneficiary:
Poway Redevelopment Agency
P.O. Box 789
Poway, California 92074-0789
Attention: Deborah Johnson, Assistant ExecutiveDirector
Trustee:
60mmonwealth Land Title Company
1455 Frazee Road, 6th Floor
San Diego, California 92108
Any party shall have the right to change its address for notice hereunder. to any other location within
the continental United States by the giving of thirty (30) days notice to the other party in the manner
set forth hereinabove. Trustor shall forward to Beneficiary, without delay, any notices, letters or
other communications delivered to the Subject Property or to Trustor naming Beneficiary, "Lender"
or the "Construction Lender" or any similar designation as addressee, or which could reasonably be
deemed to affect the construction of the Improvements or the ability ofTmstor to perform its
obligations to Beneficiary under the Note.
17
DOCSOC\731343v1\22345.0069
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7650
7;9 NONDISCRIMINATION. Trustor covenants by and forjtselfandany successors in
interest that there shall be no discrimination against or segrega"iion of any person' or group of persons
on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Real Property, nor shall the
Trustor itself or any person claiming under or through it establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy oftenants, lessees, subtemmts, stiblessees or vendees of the Real Property or any portion
thereof The foregoing covenants shall run with the land.
Trustor shall refrain from restricting the rental, sale or lease of the Real Property on
the basis of race, color, religion, sex"marital status, ancestry or national origin of any person. All
such deeds, leases or contracts shall contain or be subject to substantially the following
nondiscrimination or non segregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or hersdf, his or
her heirs, executors, administrators and assigns, and all persons.claiming.under or through them, that
there shall be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
grantee or any person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to theselection,location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with'the land."
b. In leases: "The.lessee herein covenants,by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons claiming under or through him or
her, and this lease is made,and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, marital'status, national origin, or
ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the
premises herein le;rsed nor shall the lessee himself or herself, or any person claiming under or
through 'him or her, establish or permit any such practice or-practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of tenants,
lessees, sublessees, subtenants, or vendees in the premises herein leased."
c. In contracts: "There shall' be no discrimination against or segregation of,
any person, or.group of persons' on account of race, color, creed, relIgion, 'sex,marital status, national
origin, or ancestry; in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor-shall the transferee himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
7.10 COMPLIANCE WITH SECTION 42. If the Property has allocated to its
low-income housing tax credit, under the provisions of Section 17058 and 23610.5 of the Revenue
and TaxationCode,of the State of Califomia and under Section 42 of the hitemal Revenue Code of
1986, asal11ended ("Code"), then the Property will be subject to certain requirements of Section 42
18
DOCSOC\731343v I \22345.0069
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"6r:-
or'the Code, including but not limited to Section 42(h)(6)(e)(ii). Beneficia~ acilrilwledgeS the
provisions of Section 42 of the Code and agrees that, ifand to the exteht applicable to Beneficiary in
connection with the Property, Beneficiary will allow Trustor to comply therewith.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year
set forth above.
BROOKVIEW SENIOR HOUSING PARTNERS.
a California limited partnership
By: BROOKVIEW INTERFAITH HOUSING
CORPORATION, a California. nonprofit
corporation its Managing'General Partner
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
19
DOCSOC\ 7 31343" 1122345.0069
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7652
EXHIBIT A
PROPERTY DESCRIPTION
PARCEL 1:
The West 170.00 feet of the East 513.40 feet of the South Half of the Northwest
Quarter of the Southwest Quarter of Section 14, Township 14 South, Range 2 West,
San Bernardino Meridian, in the City of Poway, County of San Diego, State of
California, according to the Official Plat thereof.
EXCEPTING THEREFROM the South 330.00 feet thereof.
PARCEL 2:
The South Half of the Northwest Quarter of the Southwest Quarter of Section 14, Township 14
South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway, Courity of San
Diego, State of California, according to Official Plat thereof.
EXCEPTING THEREFROM the South 330.00 feet thereof.
ALSO EXCEPTING THEREFROM that portion lying Westerly of the Easterly 343.40 feet
thereof.
ALSO EXCEPTING THEREFROM the East 33.00 feet thereof, as disclosed by Final
Order of Condemnation recorded March 3, 1981 as File No. 81-064580 and also
recorded October 14,1981 as File No. 81-325912, both of Official Records.
AND ALSO EXCEPTING TtiEREFROM all oil, mineral and hydrocarbon
substances in and under ttie herein described land lying below'a depth 500 feet
from the surface thereof and with no right of surface entry, as granted:to West
Coast Oil Co. by Deed recorded November 10,1986 as File No. 86-514723 of
Official Records.
PARCEL 3:
The Southerly 330.00 feet of the Northwest Quarter of the Southwest Quarter of
Section 14, Township 14 South, Range 2 West, San Bernardino Meridian, in the
City of Po way, County of San Diego, State of California, according to Official Plat
thereof.
EXCEPTING the Westerly 924.00 feet thereof.
EXCEPTING that portion lying Easterly of a line that is parallel iNith and 33.00
feet Westerly of a center line described as follows:
Beginning at the intersection of Poway Road, Road Survey 1013, and Pomerado
Road, Road Survey 1859.2, said Road Surveys on file in the Office of the County
.
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7653
Engineer of said County, said intersection having coordinates North 286;619.64 and
East 1, 751015.65interms of.the. California Coordinate System, Zone 6; thence along
the centerline of said Pomerado Road with bearings and distances in terms of said
coordinate system North 00047'22" East, 1829.58 feet; thence North 00007'46" East,
2658.36 feet; thence North 00049'48" East, 3505.34 feet; thence North 01018'08"
East, 1918.90 feet; thence North 01003'50" East, 955.47 feet to the beginning of a
tangent 1700.00 foot radius curve, concave Easterly; thence Northerly along the arc
of said curve through a central angle of 44025'03", a distance of 1317.89 feet; thence
tangent to said curve North 45028'53" East, 198.39 feet to the beginning of a tangent
2000.00 foot radius curve, concave Westerly; thence Northerly along the arc of said
curve through a central angle of 40016' 34", a distance of 1405.90 feet; thence
tangent to said curve North 05012'19" East, 792.94 feet to the beginning ofa tangent
3000.00 foot radius curve, concave Westerly; thence Northerly along the arc of said
curve through a central angle of 3004'38", a distance of 161.12 feet; thence tangent to
said curve North 02007'41" East, 1953.09 feet; thence North 01023'41 "East, 608.10
feet to the beginning of a.langent.3000.00 foot radius curve, concave Westerly;
thence Northerly along the arc of said curve through a central angle of 8026'29", a
distance of 441.99 feet; thence tangent to" said curve North 7002'48" West, 404.35 feet
to the beginning of a tangent 2500:00 foot radius curve, concave Easterly; thence
Northerly along the arc of said curve through a central angle of 9042'20", more or less,
a distance of 423.48 feet, more or less to a point in the Rancho San Bernardo
boundary line said point having a coordinates North 304,825:49 and East
1 ,752,479.69, said point being the Point of Terminus.
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7654
STATE OF CALIFORNIA )
COUNTY OF '30Y\ tJ \~~ ~ ) 55.
)
On W\U\j 47~()()U , before me, t: \:24 ~ ~"*' f. b-eo. VI , Notary Public,
(Print Name of Notary pGblic)
personally appeared \'Y\C1+~~W B. J\\Yv\~R-
D personally known to me
-o:r'-
!Xl proved toeme on the basis"of satisfactory evidence to be the person(-st whose name(;;j-is/are, subscribed to the
within ..instrument and acknowledged to me that hefsh8/th~ executed the same in histh('r/t~eiF authorized
capacity(ieo1, and that by his/L.7II,;i< 6ignatureEston the iustiument theperson(..r, or the entity upon behalf of
w~irhthe nersonlsi,a<:te.d..exe uted the instrument.
. ........ ...... WITNESS my hand and official seaL
~,.,~,f1'"
.....N*:. aA.... , ~tL:iD~~
.... DIego CCIlIIIir
MyCamm.8IphliAp'.. .-J
Signature Of No ry
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D Individual L""q~~,,\&Co"'>"'N('T;'" P.HD etT(t~>T
D Corporate Officer V t{.-\.., ~1o.so[v+.Q. !\-SSi9VlIl<Q,,-r "'t [fi>ClUS
0."'0 (2...",,; ) SRc <l..."'J ~r-"-<''''-'''''-- q ~1I
Title(s) r- .. )::t l.A(<l 1=,' r 1:~:Ttle Or Type Of Document
0 Partner(s) 0 Limited
0 General
D Attorney-In-Fact
D Trustee(s),
D GuardiatliConservator Number Of Pages
D Other:
Signer is representing:
Name OfPerson(s) Or. Entity(ies)
Date Of Documents
Signer(s) Other Than Named Above
DOCSOC\7J 1343v1 \22345.0069
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.
II. .
. . 7&35
GOVERNMENT CODE 27361.7"
II
I CERTIFY UNDER PENALTY OF ,PERJURY THAT THE NOTARY' SEAL .oN THE
DOCUMENTTOW/:iICH THis STATEMENT IS ATTACHED READS AS-I'Oidows:
Name of the Notary:
tlIZt'l be:tt:-J F. 'D bAN
C.ommission Number: iZ5" (P:27ct
Date C'ommission Expires: Apr. f, :20pl-
,County Where Bondiis Filed:
~i1 DI€.&O
Manufacturer or Vendor Number:
(Located on both sides of the notary"seai border)
/VIVA /
Signature:
e-
"Place of Execution: S~\-.JOI E.<:;'o
Date: 0. -)&r :LocO
R-::c. r-orm ~fn 0 (n~v. 1I:!(iJ