AFFECTING THE BORROWER'S ABILITY TO PERFORM ITS OBLIGATIONS TO THE
BENEFICIARY, IT BEING AGREED THAT TRUSTOR ASSUMES THE RESPONSIBILITY FOR BEING
AND KEEPING INFORMED REGARDING SUCH CONDITION OR ANY SUCH CIRCUMSTANCES;
(L)
ANY RIGHT OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION OR
INDEMNITY, OR ANY RIGHT TO ENFORCE ANY REMEDY WHICH THE BENEFICIARY NOW HAS OR
MAY HEREAFTER HAVE AGAINST THE BORROWER OR ANY BENEFIT OF, OR ANY RIGHT TO
PARTICIPATE IN, ANY SECURITY NOW OR HEREAFTER HELD BY THE BENEFICIARY; AND
(M)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OR ANY OTHER PROVISION
HEREOF, ANY RIGHTS AND BENEFITS WHICH MIGHT OTHERWISE BE AVAILABLE TO TRUSTOR
UNDER CALIFORNIA CIVIL CODE SECTIONS 2787 TO 2855, INCLUSIVE, 2899, AND 3433.
SECTION 8.6
SUBROGATION.
TRUSTOR UNDERSTANDS THAT THE EXERCISE BY
THE BENEFICIARY OF CERTAIN RIGHTS AND REMEDIES MAY AFFECT OR ELIMINATE TRUSTOR'S
RIGHT OF SUBROGATION AGAINST THE BORROWER
13
OR ANY GUARANTOR AND THAT TRUSTOR MAY THEREFORE INCUR PARTIALLY OR TOTALLY
NONREIMBURSABLE LIABILITY HEREUNDER.
NEVERTHELESS, TRUSTOR HEREBY AUTHORIZES
AND EMPOWERS BENEFICIARY, ITS SUCCESSORS, ENDORSEES AND ASSIGNS, TO EXERCISE IN
ITS OR THEIR SOLE DISCRETION, ANY RIGHTS AND REMEDIES, OR ANY COMBINATION
THEREOF, WHICH MAY THEN BE AVAILABLE, IT BEING THE PURPOSE AND INTENT OF TRUSTOR
THAT THE OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE, CONTINUING, INDEPENDENT AND
UNCONDITIONAL UNDER ANY AND ALL CIRCUMSTANCES.
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS DEED OF TRUST TO THE CONTRARY, TRUSTOR HEREBY SUBORDINATES TO
THE REPAYMENT IN FULL OF ALL OF THE BORROWER'S AND EACH OTHER OBLIGOR'S
OBLIGATIONS UNDER THE LOAN DOCUMENTS ANY CLAIM OR OTHER RIGHTS WHICH TRUSTOR MAY
NOW HAVE OR HEREAFTER ACQUIRE AGAINST THE BORROWER OR ANY GUARANTOR OF ALL OR
ANY OF THE OBLIGATIONS OF THE BORROWER HEREUNDER THAT ARISE FROM THE EXISTENCE
OR PERFORMANCE OF SUCH OF THE BORROWER'S OBLIGATIONS UNDER ANY OF THE LOAN
DOCUMENTS, INCLUDING ANY RIGHT OF SUBROGATION, REIMBURSEMENT, EXONERATION,
CONTRIBUTION OR INDEMNIFICATION, ANY RIGHT TO PARTICIPATE IN ANY CLAIM OR REMEDY
OF THE BENEFICIARY AGAINST THE BORROWER OR ANY COLLATERAL WHICH THE BENEFICIARY
NOW HAS OR HEREAFTER ACQUIRES, WHETHER OR NOT SUCH CLAIM, REMEDY OR RIGHT ARISES
IN EQUITY OR UNDER CONTRACT, STATUTE OR COMMON LAW, BY ANY PAYMENT MADE
HEREUNDER OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO TAKE OR
RECEIVE FROM THE BORROWER, DIRECTLY OR INDIRECTLY, IN CASH OR OTHER PROPERTY OR
BY SETOFF OR IN ANY OTHER MANNER, PAYMENT OR SECURITY ON ACCOUNT OF SUCH CLAIM
OR OTHER RIGHTS.
TRUSTOR UNDERSTANDS THAT: (I) SECTION 580D OF THE CALIFORNIA
CODE OF CIVIL PROCEDURE GENERALLY PROHIBITS A DEFICIENCY JUDGMENT AGAINST A
BORROWER AFTER A NON-JUDICIAL FORECLOSURE; (II) TRUSTOR'S SUBROGATION RIGHTS MAY
BE DESTROYED BY A NON-JUDICIAL FORECLOSURE UNDER THE DEED OF TRUST (BECAUSE
TRUSTOR MAY NOT BE ABLE TO PURSUE THE BORROWER FOR A DEFICIENCY JUDGMENT BY
REASON OF THE APPLICATION OF SECTION 580D OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE); AND (III) UNDER UNION BANK V. GRADSKY, 265 CAL. APP. 2ND 40 (1968),
A LENDER MAY BE ESTOPPED FROM PURSUING A GUARANTOR FOR A DEFICIENCY JUDGMENT
AFTER A NON-JUDICIAL FORECLOSURE