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1999-95472RECORDED REQUEST OFi Y RE( FirstAmerican Title ` CHI( SUBDIVISION MAPPING DEPT. NY AND WHEN RECORDED MAIL TO 2745- S (—FREDERICK MICHAEL REVA DORIS YVONNE REVA 770 RANCHO SANTA FE ROAD ENCINITAS, CA 92024 It Escrow No. 8351342 -U42 Order No. 8351342 - U50 1100313 -22 DOC # 199M0 5 7L FEB 17% 1999 12 e 15 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SNITHr COUNTY RECORDER FEES: 45.00 UAY: 2 III IIIIIII 1111111111111�0'� DEED OF TRUST WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITY This DEED OF TRUST, made this 28TH day of December 11998 between OLIVENHAIN COLONY VII, A CALIFORNIA LIMITED PARTNERSHIP herein called TRUSTOR, whose address is 442 RANCHO SANTA FE ROAD, ENCINTAS, CA 92024 CHICAGO TITLE COMPANY, a California Corporation herein called TRUSTEE, and FREDERICK MICHAEL REVA AND DORIS YVONNE REVA, TRUSTEES UNDER TRUST DATED DECEMBER 19, 1978 herein called BENEFICIARY, Trustor irrevocably grants, transfers and assigns to Trustee in Trust, with Power of Sale that property in the city of County California, described as: LOT 5 OF CITY OF ENCINITAS TRACT NO. 93- 211 /ElA, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDIONG TO MAP THEREOF NO. 13722 , FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 12 1999, MORE PARTICULARLY DESCRIBED IN EXHIBIT "A" ATTACHED AND MADE A PART HEREOF ADDITIONAL PROVISIONS EXHIBIT ATTACHED AND MADE A PART HEREOF BY REFERENCE Together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits. For the Purpose of Securing (1) payment of the sum of $203 , 000 . 00 with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each agreement of Trustor incorporated by reference or contained herein or reciting it is so secured; (3) Payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust. DT1PG1- 08/08/94bk Page 1 Escrow No: 8351342 U42 X276 ADDITIONAL PROVISIONS EXHIBIT THIS TRUST DEED IS SECOND AND SUBJECT TO DEED OF TRUST BEING RECORDED CONCURRENTLY HEREWITH IN FAVOR OF SAN DIEGO NATIONAL BANK SEE ATTACHED PARTIAL RELEASE AND SUBORDINATION AGREEMENT, BY REFERENCE MADE A PART HEREOF TDPROV- 08 /08 /94bk P7 Escrow No: 8351342 U42 To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision Act that certain Fictitious Deed of Trust referenced herein, and it is mutually agreed that all of the provisions set forth in subdivision B of that certain Fictitious Deed of Trust recorded in the book and page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, namely: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187 Alpine 3 130 -31 lake 437 110 Plums 166 1307 Siskiyou 506 762 Amador 133 438 Lassen 192 367 Riverside 3778 347 Solana 1287 621 Butte 1330 513 Los Angeles T -3878 874 Sacramento 71 -10 -26 615 Sonoma 2067 427 Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56 Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585 Contra Costa 4684 1 Mariposa 90 453 San Francisco A -804 596 Tehama 457 183 Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Trinity 108 595 E1 Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108 Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237 Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16 Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693 Inyo 165 672 Nevada 363 94 Shasta 800 633 Kern 3756 690 Orange 7182 18 San Diego Series 5 Book 1964, Page 149774 shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and provisions contained in said subdivisions A and B, (identical in all counties) are printed on the following pages hereof, and are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge thereof does not exceed the maximum allowed by laws. The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at his address hereinbefore set forth. STATE OF CALIFORNIA COUNTY OF '3Uj%1t tq ��tt��tt ��'tt } S.S. ICIQ On :Mari "th 1 t `" before me, =Aate, f�✓Qtary Public in and for said County and State, personally appeared 0L-7 Ej . Ld- ,6 flh personally known to me (or- proved• to -me or the•basis•ofsa isfaetoryevidence) to be the person(s) whose name(s) 14 /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his- /her /their signatures) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ._ Jigh,-) NOTARY'S SIGNjkTURE DT1PG2- 08 /08 /94bk Page 2 OLIVENHAIN COLONY VII, a California Limited Partnership BY;— ESE / PERT ES, LLCj BY .- -- ROBERT A. BOOKER, MEMBER BY BOB G. LUCIDO, MEMBER (THIS AREA FOR OFFICIAL NOTARIAL SEAL OR STAMP) 52 -8 EXHIBIT "A" PARCEL 1: LOT 5 OF CITY OF ENCINITAS TRACT NO. 93- 211 /EIA, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13722, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON FEBRUARY 12, 1999, RESERVING THEREFROM AN EASEMENT FOR THE BENEFIT OF LOT 4 FOR PRIVATE ROAD, PUBLIC UTILITY AND PRIVATE DRAINAGE OVER, ALONG, UNDER AND ACROSS THAT PORTION OF LOT 5 SHOWN AND DELINEATED ON SAID MAP AS "DOVE SONG WAY ", RESERVING THEREFROM AN EASEMENT FOR THE BENEFIT OF LOTS 21 3 AND 41 FOR PRIVATE UTILITY AND DRAINAGE OVER, ALONG, UNDER AND ACROSS THAT PORTION OF SAID LOT 5 SHOWN AND DELINEATED ON SAID MAP AS "PRIVATE UTILITY EASEMENT RESERVED FOR THE BENEFIT OF LOT 411. PARCEL 2: AN EASEMENT FOR PRIVATE ROAD, PUBLIC UTILITY AND PRIVATE DRAINAGE, OVER ALONG, UNDER AND ACROSS THAT OF LOT 4 OF CITY OF ENCINITAS TRACT NO. 93- 211 /EIA, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13722, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON FEBRUARY 12, 1999, SHOWN AND DELINEATED ON SAID MAP AS "DOVE SONG WAY ". PARCEL 3: AN EASEMENT FOR PRIVATE OVER, ALONG, UNDER AND TRACT NO. 93- 211 /EIA, DIEGO, STATE OF CALIFO FILED IN THE OFFICE OF FEBRUARY 12, 1999 ROAD, PUBLIC UTILITY AND PRIVATE DRAINAGE, ACROSS ALL OF LOT 7 OF CITY OF ENCINITAS IN THE CITY OF ENCINITAS, COUNTY OF SAN RNIA, ACCORDING TO MAP THEREOF NO, 13722, THE COUNTY RECORDER OF SAN DIEGO COUNTY ON 5279 PARTIAL RELEASE AND SUBORDINATION Supplement to Deed of Trust This Supplement is attached to and made a part of the Deed of Trust dated December 28, 1998, between OLIVENHAIN COLONY, VII, LTD., a California limited partnership, as Trustor, FREDERICK MICHAEL REVA and DORIS YVONNE REVA, as Beneficiary and Chicago Title Company as Trustee, and describing certain real property ('Property ") and securing a promissory note ( "Note ") from Trustor to Beneficiary. The Deed of Trust is hereby supplemented as follows: Subordination. a. Terms. Provided no notice of default has been recorded which remains uncured, and no condition or event has occurred that would constitute a default upon the passage of time or the giving of notice, the lien of the Deed of Trust shall be made subject and subordinate to the lien of a Senior Deed of Trust or Deeds of Trust to secure a Senior Loan or Senior Loans made to Trustor upon the following terms: (i) The lender in each case shall be a bank, savings and loan or other financial institution doing business regularly in California. (ii) The principal amount of the Senior Loan or Senior Loans, when added to the principal amount of the Note plus any other indebtedness secured by a lien on the Property senior to the lien of the Deed of Trust, shall not exceed 125% of the appraised value of the Property, 5280 including completed improvements. The appraised value shall be conclusively determined by the lending institution making the Senior Loan. (iii) The Senior Loan documents shall require, by their terms, that all proceeds of the Senior Loans shall be used exclusively for performing work of construction, alteration, improvement or repair upon the Property, including the necessary related surveying, engineering, architectural work and developer's fees. Disbursements of all Senior Loan proceeds shall be controlled by the lender's construction loan disbursement procedures. (iv) The outstanding principal amount of the Senior Loans shall bear simple interest at no more than the prevailing rate for construction loans of a similar type in the San Diego County, State of California, which may be variable. b. Implementation. Beneficiary shall execute all documents and instruments reasonably required to cause subordination in accordance with the provisions of the Deed of Trust and this Supplement. C. Default. Trustor shall perform all its obligations in connection with the Senior Loan. Any default under the Senior Loan shall constitute a default under the Deed of Trust entitling Beneficiary, at its option, and in addition to other remedies available to Beneficiary, to declare the entire amount owing on the Note immediately due and payable. 2 5281 d. In connection with any subordination hereunder, Beneficiary understands and acknowledges that: (i) The Senior Deeds of Trust and any modifications, renewals or extensions thereof shall unconditionally be and remain at all times a lien or charge on the Property secured by this Deed of Trust prior and superior to the lien of this Deed of Trust. (ii) A lender making disbursements pursuant to any Senior Loan shall be under no obligation or duty to the Beneficiary to see to the proper application of the disbursements. (iii) Beneficiary intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of this Deed of Trust in favor of the lien or charge of a deed of trust upon the Property in favor of any lender made pursuant to Section 1. a. and understands that in reliance upon and consideration of this waiver, relinquishment and subordination, specific loans and advances may be made and specific monetary and other obligations may be entered into that would not be made or entered into but for the reliance upon this waiver, relinquishment and subordination. (iv) The lender shall have the right to require an endorsement to be placed upon the Note that this Deed of Trust has by appropriate instrument been subordinated to the lien or charge of the Senior Deeds of Trust. e. Beneficiary specifically acknowledges that it has been fully advised by an attorney of Beneficiary's choice in connection with the execution of this Supplement, and agrees to the subordination of this Deed of Trust to the Senior Deed of Trust. Accordingly, Beneficiary waives on its own behalf and on behalf of any heirs, successors, and assigns of this Deed of Trust, 5282 the Note secured hereby or any other document executed in connection with or securing the Note, the provisions of Sections 2953.1, 2953.2, 2953.3 and 2953.4 of the Civil Code of the State of California. 2. Parcel Maps and Development Approvals. Beneficiary consents to the recordation of subdivision maps, lot splits, "Covenants, Conditions and Restrictions," and other documents reasonably necessary and customary for a division of and development of the Property as two single family residences; provided that: (i) no notice of default has been filed of record and no condition or event has occurred which would constitute a default upon the passage of time or the giving of notice; (ii) recordation of the maps and compliance with any conditions imposed on them shall not reduce materially the value of the Property; and (iii) recordation of the map, or compliance with any condition imposed on it, does not hinder or obstruct access to streets or the furnishing of utility service to the Property. Beneficiary shall sign the Lot Split map when requested by Trustor if required for an effective filing or governmental approval of the Lot Split. 3. Partial Release in Connection with Subdivision Mans. Provided no notice of default has been recorded and remains of record, and no condition or event has occurred that would constitute an uncured default upon the passage of time or the giving of notice, Beneficiary shall give Trustor partial reconveyances, without payment, of any portion of the Property required to be dedicated or conveyed by way of easement or fee to any public authority or public utility in connection with the processing, approval and recordation of a subdivision map, or as a condition upon the granting of a use permit, zoning variance or other approval to which Beneficiary is required 5283 to consent under the terms of this Supplement, or as required for access or for above or below- ground utility lines, including water, sewer, gas, and electricity, reasonably required to serve improvements and legal uses of the Property. 4. Procedure For Trustee Action. a. Subject to Section 4.b, Trustee shall execute any Lot Splits or subdivision maps within 10 days after receipt from Trustor of a written request, together with Trustor's certificate that copies of the map and request have been delivered to Beneficiary. b. Trustee shall not make the release if, within the 10 -day period, Trustee has received a written notice from Beneficiary stating that Beneficiary does not consent. If Trustee does not receive a notice of nonconsent from Beneficiary, Trustee shall be conclusively entitled to rely upon the certificates and requests for action presented by Trustor without liability of any kind to Beneficiary. c. Trustor shall pay, in addition to the release price, all costs of effecting the release, including, without limitation, recording fees, document preparation fees and title or escrow company fees. d. Upon the recording of the partial reconveyance, Beneficiary's security interest, if any, in any personal property on or in the released Property shall be considered fully released without further consideration or action by Trustee or Beneficiary. 5. Arbitration. Any controversy, claim, or dispute between the parties, directly or indirectly, concerning this Agreement or the breach hereof or the subject matter hereof, including questions concerning the scope and applicability of this arbitration clause, shall be finally settled by 5 S284 arbitration as provided herein. In the event a dispute is to be submitted to arbitration, the dispute shall be settled by arbitration in the City of San Diego, California, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. Except as specifically provided herein, the arbitration shall proceed in accordance with the laws of the State of California. The party requesting arbitration shall given a written demand for arbitration to the other party by registered or certified mail. The demand shall set forth a statement of the nature of the dispute, the amount involved, and the remedies sought. No later than twenty (20) calendar days after the demand for arbitration is served, the parties shall jointly select and appoint a retired Judge of the San Diego County Superior Court to act as the arbitrator. In the event the parties do not agree on the selection of an arbitrator, the party seeking arbitration shall apply to the San Diego County Superior Court for the appointment of a retired Judge of the court to serve as arbitrator. As rules for the arbitration, the arbitrator shall apply the provisions of Sections 1282 through 1284.2 of the California Code of Civil Procedure and the parties may pursue discovery in accordance with California Code of Civil Procedure Section 1283.05. No later than ten (10) calendar days after the arbitrator is appointed, the arbitrator shall schedule the arbitration for a hearing to commence on a mutually convenient date. The hearing shall commence no later than one hundred twenty (120) calendar days after the arbitrator is appointed and shall continue from day to day until completed. All discovery shall be completed no later than the commencement of the arbitration hearing or one hundred twenty . 5285 (120) calendar days after the date that a proper demand for arbitration is served, whichever occurs earlier, unless upon a showing of good cause the arbitrator extends or shortens that period. IN WITNESS WHEREOF, Trustor and Beneficiary have executed this supplement on the same date as the date of the Deed of Trust. TRUSTOR OLIVENHAIN COLONY, VII, LTD., a California limited partnership By: DESERT ROSE PROPERTIES, LLC, a California limited liability company, Its General Partner Bv:� Oft/ Robert A. Booker Member By: /- Bob G. Lucido Member BENEFICIARY 4 �a9,f)z �L 611'1)0VkX.(j Gt DORIS YVONNf REVA