HomeMy WebLinkAboutFirst Amended and Restated Deed of Trust - 1-13-2020 V1Bank ufAmerica, N��
NC1-801-05-13
One Independence Center
1O1North Tryon Street
Charlotte, NC28255-00U1
Space above this line for Recorder's Use
This First Amended and Restated Deed of Trust ismade as ofJanuary 13`2020,by BOWDEN
PROPERTIES, LLC.onIdaho limited liability company, and BLACK N0OR, LLC.anIdaho limited liability
company, as grantors (collectively, "(SronbJr'), whose address is 400 Overland Rood. Meridian, |D 83642,
toFIRST /\K8ERICANTITLE INSURANCE COMPANY, oatrustee ("Truebae").whose address io1 First
American Way, Santa Ana, CAS27O7.for the benefit ofBANK OF AYMERI.,N.A..ansdionaibanking
association, as beneficiary ("Beneficiary"), whose address is NCI-001-05-13, One Independence Center,
101 North Tryon Stnasd, Cher|uMo' NC28255-UO01.
This First Amended and Restated Deed of Trust hereby amends and restates the following
existing security instruments in their entirety and includes an additional advance and spread of lien to
include additional ooUobana| as set forth herein:
A. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by
Grantor Black Mor, LLC for the benefit of Beneficiary, recorded on April 10, 2014, as Instrument Number
114026800, Official Records of Ada County, State of Idaho (the "Recorder's Office"), as amended by that
certain Modification and Additional Advance Agreement (Deed ofTrust) recorded onJune 5.2O18and re-
recorded onJune12.2U18.aa|natrunlentNunnbere2O18'051G08end2018-U53823.peopentivo|y.inthe
Recorder's Office; and
B. Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by
Grantor Bowden Properties, LLC for the benefit of Beneficiary, recorded on April 10, 2014, as Instrument
Number 114026799, in the Recorder's Office, as amended by that certain Modification and Additional
Advance Agreement (Deed of Trust) recorded on June 5, 2018, as Instrument Number 2018-051607 in
the Recorder's Office.
1. GRANT INTRUST.
11 TheProperty. For the purpose ofsecuring payment and performance ofthe Secured
Obligations defined in Section 2 belowGrantor hereby irrevocably and unconditionally grants, conveys,
transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of
entry and possession, all estate, right, title and interest which Grantor now has ormay later acquire inthe
following property (all or any part of such property, or any interest in all or any part ofit, together with the
Personalty (as hereinafter defined) being hereinafter collectively referred to as the "Property"):
(a) The real property located inthe County ofAda, State ofIdaho, aedescribed
in Exhibit A hereto (the "Land";
1-First Amended and Restated Deed of Trust
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(b) All buildings, structures, improvements, fixtures and appurtenances now or
hereafter placed on the Land, and all apparatus and equipment now or hereafter attached in any
manner hothe Land or any building on the Land, including all pumping plants, eng|neo, pipes,
ditches and flumes, and also all gas, electric, cooking, heating, cooling, air conditioning, lighting,
refrigeration and plumbing fixtures and equipment (collectively, the "Improvements");
(c) All easements and rights ofway appurtenant tothe Land; all crops growing or
to be grown on the Land (including all such crops following severance from the Land); all standing
timber upon the Land (including all such timber following severance from the LaOd); all
development rights or credits and air rights; all water and water rights (whether riparian,
appropriative, or otherwise, and whether or not appurtenant to the Land) and shares of stock
pertaining to such water or water rights, ownership of which affect the Land; all minerals, oil, gas,
and other hydrocarbon substances and rights thereto in, on, under' orupon the Land;
(d) All existing and future leases, subleases, subtenancies, licenses, occupancy
agreements and concessions relating tothe use and enjoyment ofaUoranypadofthe Land or
the Improvements, and any and all guaranties and other agreements relating toormade in
connection with any 0fthe foregoing;
(e) All proceeds, including all claims toand demands for them, ofthe voluntary
or involuntary conversion of any of the Land, Improvements, Or the other property described
above into cash or liquidated claims, including proceeds of all present and futureOre.hezordmr
casualty insurance policies, whether or not such policies are required by Beneficiary, and all
condemnation awards or payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with any condemnation or eminent
domain proceeding, and all causes of action and their proceeds for any breach of warranty,
misrepresentation, damage orinjury to,ordefeotin.thaLand.|mprovemenbs.ortheuthar
property described above orany part ofthem; and
(f) All proceeds of, additions and accretions to, substitutions and replacements
for, and changes inany ofthe property described above.
The Property described herein is (i) located within an incorporated city or village, (ii) does not contain
more than forty (4K}) acres, Cn(ii0kanot used primarilyfor agricultural production ofcrops, livestock, dairy
or aquatic goods and does not exceed eighty (80) acres.
12 Fixture Filing, This Deed ofTrust constitutes mfinancing statement filed asafixture
filing under the Idaho Uniform Commercial Code, as amended or recodified from time totime, covering
any Property which now i8orlater may become a fixture attached buthe Land orany building located
thereon.
2. THE SECURED OBLIGATIONS.
2.1 Purpose of Securing. Grantormakes the grant, conveyance, transfer and
assignment set forth in Section 1, makes the irrevocable and absolute assignment set forth iOSection 3.
and grants the security interest set forth in Section 4, all for the purpose of securing the following
obligations (the "Secured Obligations") in any order of priority that Beneficiary may choose:
(a) Payment of all obligations OfBOWDEN PROPERTIES, LLC, an Idaho limited
liability company, and BLACK MOR, LLC.enIdaho limited liability company (co| .
"Obligor") to Beneficiary arising under the following instmment(s)OraQ s) .
the "Debt |notnument'):
0 All facilities under that certain First Amended and Restated Loan
Agreement dated as of January 13, 2020, between Obligor and Beneficiary which
provides for extensions of credit in an aggregate principal amount not exceeding Thirty -
Seven Million Nine Hundred Thousand and 00/100 Dollars ($37,900,000.00), which
amendment and restatement incorporates anadditional advance ofupto $9.108.750.23.
As of January 13, 2020, the outstanding principal balance of the facilities secured by the
u—FirstAmondn and Restated Deed ofTrust
U:\8OA\98503QusN9e505-081BOVVDEN\LO8NDOC8V}OTdnv3.dpo
Deeds of Trust are $12.041.249.77 for the term loan facility and $16,750.000.00
for the reducing line of credit facility.
This Deed ofTrust also secures payment ofall obligations ofObligor underUleOebt|netnurnent
which aheo after the Debt Instrument is axtended, renewed, modified or amended pursuant to
any written agreement between Obligor and Beneficiary, and all obligations of Obligor under any
successor agreement or instrument which restates and supersedes the Debt Instrument in its
enUnah/;
(b) Payment and performance of all obligations of Grantor under this Deed of
(d Payment and performance cfall obligations of Obligor under any Swap
Contract with respect to which there is a writing evidencing the parties' agreement that said Swap
Contract shall besecured bvthis Deed ofTrust. "Swap Contract" means any document,
instrument or agreement with Beneficiary, now existing or entered into in the future, relating to an
interest rate swap transaction, forward rate transaction, interest rate cap, floor orcollar
trenoaction, any similar transaction, any option t0enter into any Ofthe foregoing, and any
combination of the foregoing, which agreement may be oral or in writing, including, without
limitation, any master agreement relating to or governing any or all of the foregoing and any
related schedule orconfirmation, each osamended from time totime; and
(d) Payment and performance ofall future advances and other obligations under
the Debt Instrument.
This Deed of Trust does not secure any obligation which expressly states that it is unsecured, whether
contained in the foregoing Debt Instrument or in any other document, agreement or instrument,
Notwithstanding any provision bothe contrary, "Secured Obligations" secured hereby shall not include
obligations arising under any Swap Contract to the extent that the grant ofo lien hereunder to secure
such Swap Contract would violate the Commodity Exchange Act by virtue of the Grantor's failure to
constitute an "eligible contract participant" as defined in the Commodity Exchange Act at the time such
grant of such lien becomes effective with respect to such Swap Contract. "Commodity Exchange Act'
means 7 U.S.C. Section 1 *t:8q., as amended from time to time, any successor statute, and any ru|ea,
regulations and orders applicable thereto.
2.2 Terms of Secured Obligations. All persons who may have oracquire an interest in
all or any part of the Property will be considered to have notice of, and will be bound by, the terms of the
Debt Instrument described inParagraph 2.1ba\and each other agneementorinetnumentnnadeorentenad
into inconnection with each ofthe Secured Obligations, These terms include any provisions inthe Debt
Instrument which permit borrowing, repayment and reborrowing, or which provide that the interest rate on
one ormore ofthe Secured Obligations may vary from time totime.
3. ASSIGNMENT OF RENTS.
3.1 Assignment. Grantor hereby irrevocably, obso|utelv` presently and unconditionally
assigns to Beall rents, royalties,issues, profits, revenue, income and proceedsofthe Property,
whether now due, past due cvtobecome due, including all prepaid rentaandaeuuhtvdeooeita
(collectively, the "Rents"), and confers upon Beneficiary the right to collect such Rents with or without
taking possession ofthe Property. In the event that anyone establishes and exercises any right bz
develop, bore for or mine for any water, gas, oil or mineral on or under the surface of the Property, any
sums that may become due and payable to Grantor as bonus or royalty payments, and any damages or
other compensation payable to Grantor in connection with the exercise of any such rights, shall also be
considered Rents assigned under this Paragraph. THIS IS AN ABSOLUTE ASSIGNMENT, NOT AN
ASSIGNMENT FOR SECURITY ONLY..
3.3 Grant of License. Notwithstanding the provisions ofParagraph 3j, Beneficiary
hereby confers upon Grantor elicense ("License") to collect and retain the Rents as they become due
3—First Amended and Restated Deed ofTrust
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P-it N.- nd payable, so long as noEvent of Default, oadefined inParagraph O.2.shall exist and becontinuing. If
Event cfDefault has occurred and kscontinuing, Beneficiary shall have the right, which itmay choose
to exercise in its sole discretion, to terminate this License without notice to or demand upon Grantor, and
without regard to the adequacy of the security for the Secured Obligations.
4. SECURITY INTEREST IN RELATED PERSONALTY.
4.1 Grant of Security Interest, Grantor grants to Beneficiary a security interest in, and
pledges and assigns to Beneficiary, all of Grantor's right, title and interest, whether presently existing or
hereafter acquired in and to all of the following property (collectively, the "Personalty"):
(a) All materials, supplies, goods, tools, furniture, fixtures, equipment, and
machinery which in all cases is affixed or attached, or to be affixed or attached, in any manner on
the Land orthe Improvements;
(b) All crops growing orhobegrown onthe Land (and after severance from the
Land); all standing timber upon the Land (and after severance from the Land);all sewer, water
and water rights (whether riparian, appropriative, or otherwise, and whether ornot appurtenant to
the Land) and all evidence of ownership rights pertaining to such water or water rights, ownership
0fwhich affect the Land; and all architectural and engineering plans, specifications and drawings
which arise from orrelate tothe Land orthe Improvements;
(c) All permits, licenses and c|einno to or demands for the voluntary or
involuntary conversion of any of the Land, Improvements, or other Property into cash or liquidated
claims, proceeds of all present and future fina, hazard or casualty insurance policies relating to
the Land and the Improvements, whether ornot such policies are required byBeneficiary, and all
condemnation awards or payments now or later to be made by any public body or decree by any
court of competent jurisdiction for any taking or in connection with any condemnation or eminent
domain proceeding, and all causes of action and their proceeds for any bnaoCh of warranty,
misrepresentation, damage orinjury bo.Ordefectin.theLond.|Onprovemenb;,orotherPrope�y'r
any part of them;
(d) All substitutions, replacements, additions, and accessions boany ofthe
above property, and all books, records and files relating to any of the above property, including,
without limitation, all general intangibles related to any of the above property and all proceeds of
the above property.
5. RIGHTS AND DUTIES OF THE PARTIES.
5.1 Representations and Warranties. Grantor represents and warrants that Grantor
lawfully possesses and holds fee simple title to all of the Land and the Improvements, unless Grantor's
present interest in the Land and the Improvements is described in Exhibit A as a leasehold interest, in
which case Grantor lawfully possesses and holds a leasehold interest in the Land and the Improvements
as stated in Exhibit A.
5.2 Taxes, Assessments, Liens and Encumbrances. Grantor shall pay prior to
delinquency all taxes, levies, charges and assessments, including assessments on appurtenant water
stock, imposed by any public or quasi -public authority or utility company which are (or if not paid, may
become) a lien on all or part of the Property or any interest in it, or which may cause any decrease in the
value of the Property or any part of it. Grantor shall immediately discharge any lien on the Property which
Beneficiary has not consented to in writing, and shall also pay when due each obligation secured by or
reducible to a lien, charge or encumbrance which now or hereafter encumbers or appears to encumber all
or part of the Property, whether the lien, charge or encumbrance is or would be senior or subordinate to
this Deed of Trust.
4-First Amended and Restated Deed nfTrust
WBO8X965038uu\96503-081BVVvDEN\LOANDOCSV]0Tdm8.duo
5.3 Damages and Insurance and Condemnation Proceeds.
bd Grantor hereby absolutely and irrevocably assigns toBen8ficary.3nd
authorizes the payortupay hoBeneficiary, the following claims, causes ofaction, awards,
payments and rights to payment (collectively, the "Claims"):
(i) all awards ofdamages and all other compensation payable directly ov
indirectly because of a condemnation, proposed condemnation or taking for public or
private use which affects all orpart ofthe Property orany interest init;
(ii) all other awards, claims and causes ofaction, arising out ufany
breach of warranty or misrepresentation affecting all or any part of the Property, or for
damage orinjury to,ordehaotin.ordecreaeeinva|ueofaU0rpodofthePnzpedvorany
interest in it;
(iii) all proceeds ofany insurance policies payable because nfloss
sustained to all or part of the Property, whether or not such insurance policies are
required bvBeneficiary; and
(iv)all interest which may accrue onany ofthe foregoing,
8d Grantor shall immediately notify Beneficiary inwriting if:
(i) any damage occurs urany injury orloss issustained boall orpart of
the Property, or any action or proceeding relating toany such darnage, injury or loss is
commenced; or
0U any offer ksmade, orany action orproceeding iecommenced, which
relates to any actual or proposed condemnation or taking of all or part of the Property.
If Beneficiary chooses todoso, itmay inits own name appear inorprosecute any action or
proceeding to enforce any cause of action based on breach of warranty or misrepresentation, or
for damage orinjury to.dofeotin,ordecreaoeinwa|ueofa(|orportofMheProperty'enditmay
make any compromise o,settlement ofthe action orproceeding. Beneficiary, ifitaochooses,
may participate in any action or proceeding relating to condemnation or taking of all or part of the
Property, and may join Grantor inadjusting any loss covered byinsurance.
(c) All proceeds ofthe Claims assigned toBeneficaryunderthioParooraohaha|
be paid to Beneficiary. |neach instance, Beneficiary shall apply those proceeds first toward
reimbursement ofall ofBeneficiary's costs and expenses ofrecovering the proceeds, including
attorneys' fees. Grantor further authorizes Beneficiary, etBeneficiary's option and in
Beneficiary's sole discretion, and regardless ofwhether there is any impairment ofthe Property,
(i) to apply the balance of such proceeds, or any portion of them, to pay or prepay some or all of
the Secured Obligations in such order or proportion as Beneficiary may determine, or (ii) to hold
the balance of such proceeds, or any portion of them, in an interest -bearing account to be used
for the cost of reconstruction, repair or alteration of the Property, or (iii) to release the balance of
such proceeds, urany portion ofthem, tVGrantor. |fany proceeds are released toGrantor,
neither Beneficiary nor Trustee shall be obligated to see to, approve or supervise the proper
application ofsuch proceeds. |fthe proceeds are held byBeneficiary tobaused toreimburse
Grantor for the costs of restoration and repair of the Property, the Property shall be restored to
the equivalent of its original condition, or such other condition as Beneficiary may approve in
writing. Beneficiary may, at Beneficiary's option, condition disbursement of the proceeds on
Beneficiary's approval of such plans and specifications prepared by an architect satisfactory to
Beneficiary, contractor's cost estimates, architect's certificates, waivers of liens, sworn statements
of mechanics and materialmen, and such other evidence of costs, percentage of completion of
construction, application of payments, and satisfaction of liens as Beneficiary may reasonably
require.
5—First Amended and Restated Deed vfTrust
U:VJO/V965038uu\90503-081 BOVVDEN\L[V\NDOM]QTdnv3.dmc
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Permit Number. wmaaoxa 5.4 Insurance. Grantor shall provide and maintain in force at all times all risk property
amage insurance (including without limitation windstorm coverage, and hurricane coverage as
applicable) on the Property and such other type of insurance on the Property as may be required by
Beneficiary in its reasonable judgment. At Beneficiary's request, Grantor shall provide Beneficiary with a
counterpart original of any policy, together with a certificate of insurance setting forth the coverage, the
limits of liability, the carrier, the policy number and the expiration date. Each such policy of insurance
shall be in an amount, for a term, and in form and content satisfactory to Beneficiary, and shall be written
only by companies approved by Beneficiary. In addition, each policy of hazard insurance shall include a
Farm 438BFU or equivalent loss payable endorsement in favor of Beneficiary.
5.5 Maintenance and Preservation of Property.
(a) Grantor shall keep the Property in good condition and repair and shall not
commit or allow waste of the Property. Grantor shall not remove or demolish the Property or any
part of it, or alter, restore or add to the Property, or initiate or allow any change in any zoning or
other land use classification which affects the Property or any part of it, except with Beneficiary's
express prior written consent in each instance.
(b) If all or part of the Property becomes damaged or destroyed, Grantor shall
promptly and completely repair and/or restore the Property in a good and workmanlike manner in
accordance with sound building practices, regardless of whether or not Beneficiary agrees to
disburse insurance proceeds or other sums to pay costs of the work of repair or reconstruction
under Paragraph 5.3.
(c) Grantor shall not commit or allow any act upon or use of the Property which
would violate any applicable law or order of any governmental authority, whether now existing or
later to be enacted and whether foreseen or unforeseen, or any public or private covenant,
condition, restriction or equitable servitude affecting the Property. Grantor shall not bring or keep
any article on the Property or cause or allow any condition to exist on it, if that could invalidate or
would be prohibited by any insurance coverage required to be maintained by Grantor on the
Property or any part of it under this Deed of Trust.
(d) If Grantor's interest in the Property is a leasehold interest, Grantor shall
observe and perform all obligations of Grantor under any lease or leases and shall refrain from
taking any actions prohibited by any lease or leases. Grantor shall preserve and protect the
leasehold estate and its value.
(e) If the Property is agricultural, Grantor shall farm the Property in a good and
husbandlike manner. Grantor shall keep all trees, vines and crops on the Property properly
cultivated, irrigated, fertilized, sprayed and fumigated, and shall replace all dead or unproductive
trees or vines with new ones. Grantor shall prepare for harvest, harvest, remove and sell any
crops growing on the Property. Grantor shall keep all buildings, fences, ditches, canals, wells
and other farming improvements on the Property in first class condition, order and repair.
(f) Grantor shall perform all other acts which from the character or use of the
Property may be reasonably necessary to maintain and preserve its value.
5.6 Releases, Extensions, Modifications and Additional Security. Without affecting the
personal liability of any person, including Grantor (or Obligor, if different from Grantor), for the payment of
the Secured Obligations or the lien of this Deed of Trust on the remainder of the Property for the unpaid
amount of the Secured Obligations, Beneficiary and Trustee are respectively empowered as follows:
(a) Beneficiary may from time to time and without notice:
(i) release any person liable for payment of any Secured Obligation;
(ii) extend the time for payment, or otherwise alter the terms of payment,
of any Secured Obligation;
6 — First Amended and Restated Deed of Trust
U:\BOA\96503 Bus\96503-081 BOWDEN\LOAN DOCS\DOT cinv3.doc
UiU accept additional real Orpersonal 'Ofany Nkvfor
any Secured Ob|�aUon.vvhethere�dancedbvdeeds oftrust, nnodoagea.oecuhtv '
agreements urany other instruments ofsecurity; or
(iv) alter, substitute orrelease any property securing the Secured
0d Trustee may perform any ofthe following acts when requested hodosobv
Beneficiary in writing:
0u�e���ema�ngofa���or�pof�ePmp�yora���
of it;
8i\join ingranting any easement orcreating any restriction affecting the
(iii) join inany subordination orother agreement this Deed of
Trust orthe lien ofd�or affecting~
(iv) reconvey the Property or any part of it without any warranty.
5.7 Reconveyance. When all ofthe Secured Obligations have been paid infull and no
further commitment hoextend credit continues, Trustee shall neconv the Pnopertv.o aonnunh[fitaSis
then held under this Deed OfTrust, vvK� hout�eantytothe person or| naonalegally entitled toit. In the
reconveyance, the grantee may be described as "the person or persons legally entitled thereto," and the
recitals of any matters or facts shall be conclusive proof of their truthfulness. Neither Beneficiary nor
Trustee shall have any duty to determine the rights of persons claiming to be rightful grantees of any
raoonveyanma.
5.8 Compensation and Reimbursement of Costs and Expenses.
(a) Grantor agrees to pay fees inthe maximum amounts |egal' �permitted, or
reasonable fees aamay be charged by Beneficiary and Trustee when the law provides no
maximum limit, for any services that Beneficiary or Trustee may render in connection with this
Deed of Trust, including Beneficiary's providing a statement of the Secured Obligations or
Trustee's rendering ofservices inconnection with onaCunveyanoe. Grantor shall also pay ur
reimburse all of Beneficiary's and Trustee's costs and expenses which may be incurred in
rendering any such services.
(b) Grantor further agrees to pay or reimburse Beneficiary for all costs, expenses
and other advances which may be incurred or made by Beneficiary or Trustee to protect or
preserve the Property or to enforce any terms of this Deed of Trust, including the exercise of any
rights or remedies afforded to Beneficiary or Trustee or both of them under Paragraph 6.3,
whether any lawsuit is filed qrnot, orindefending any action orproceeding arising under or
relating to this Deed of Trust, including attorneys'fees and other legal costs, costs of any sale of
the Property and any cost ofevidence oftitle.
(c) Grantor shall pay all obligations arising under this Paragraph immediately
upon demand byTrustee orBeneficiary. Each such obligation shall baadded to, and considered
to be part of, the principal of the Secured Obligations, and shall bear interest from the date the
obligation arises at the rate provided in any instrument or agreement evidencing the Secured
Obligations. |fmore than one rate of interest iaapplicable tothe Secured [}b|igotions, the highest
rate shall beused for purposes hereof.
5.9 Exculpation and Indemnification.
(a) Beneficiary shall not bodirectly orindirectly liable boGrantor orany other
person as a consequence of any of the following:
(i) exercise ofcvfailure hoexercise any rights, remedies or
powers granted to it in this Deed of Trust;
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0U failure nrrefusal to perform or discharge any obligation
orliability VfGrantor under any agreement related to the Property munder this Deed of
Trust;
(iii) Beneficiary's failure buproduce Rents from the Property orto
perform any of the obligations of the lessor under any lease covering the Property;
(iv) any waste committed bvlessees ofthe Property orany other parties,
orany dangerous V[defective condition ofthe Property; or
(v) any loss sustained byGrantor orany third party resulting from any
act or omission of Beneficiary in operating or managing the Property upon exercise of the
rights or remedies afforded Beneficiary under Paragraph 6.3, unless the loss is caused
bythe willful misconduct and bad faith ofBeneficiary.
Grantor hereby expressly waives and releases all liability ofthe types described above, and
agrees that no such liability shall be asserted against or imposed upon Beneficiary.
(b)Grantor agrees toindemnify Trustee and Beneficiary against and hold them
harmless from all losses, damages, liabilities, claims, causes ofaction, judgments,court costs,
attorneys'fees and other legal expenses, cost of evidence oftitle, cost of evidence of value, and
other costs and expenses which either may suffer orincur in performingany act required or
permitted by this Deed ofTrust orbylaw orbecause ofany failure ofGrantor toperform any ofits
obligations. This agreement by Grantor to indemnify Trustee and Beneficiary shall survive the
release and cancellation of any or all of the Secured Obligations and the full or partial release
and/or nsconveyanceofthis Deed ofTrust.
5.10 Defense and Notice of Claims and Actions. At Grantor's sole expense, Grantor
shall protect, preserve and defend the Property and title to and right of possession of the Property, and
the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under it,
against all adverse claims. Grantor shall give Beneficiary and Trustee prompt notice in writing if any claim
is asserted which does or could affect any of these matters, or if any action or proceeding is commenced
which alleges or relates to any such claim.
5i11 Substitution of Trustee. From time hotime, may substitute esuccessor
to any Trustee named in or acting under this Deed of Trust in any manner now or later to be provided at
law, orbyowritten instrument executed and acknowledged by Beneficiary and recorded \nthe office of
the recorder ofthe county where the Property iasituated. Any such instrument shall boconclusive proof
of the proper substitution of the successor Trustee, who shall automatically upon recordation of the
instrument succeed to all moteta, tiUe, rights, powers and duties of the predecessor Trumhee, without
conveyance from it.
5.12 Representation and WarrantV Regarding Hazardous Substances. Before signing
this Deed of Trust, Grantor researched and inquired into the previous uses and ownership of the
Property. Based on that due diligence, Grantor represents and warrants that to the best of its knowledge,
no hazardous substance has been disposed of or released or otherwise exists in, on, under or onto the
Property, except aoGrantor has disclosed toBeneficiary inwriting. Grantor further represents and
warrants that Grantor has complied, and will comply and cause all occupants ofthe Property tocomply,
with all current and future laws, regulations and ordinances or other requirements of any governmental
authority relating toorimposing liability urstandards ofconduct concerning protection ofhealth orthe
environment orhazardous substances ("EnvinoDmenba|Lovvm"). Grantor shall promptly, otGrantor's sole
cost and expense, take all reasonable actions with respect to any hazardous substances or other
environmental condition at, on, or under the Property necessary to (i) comply with all applicable
Environmental Laws; (ii) allow continued use, occupation or operation of the Property; or (iii) maintain the
fair market value ofthe Property. Grantor acknowledges that hazardous substances may permanently
and materially impair the value and use ofthe Property. "Hazardous substance" means any substance,
material or waste that is or becomes designated or regulated as "toxic," "hazardous," "pollutant," or
8—First Amended and Restated Deed ofTrust
U:UBOA\90503Buo\96503-001BOVVDEN\LOANDOCG\Dx]TdnvSdvo
D.
4hether or regulation under any current 0future federal, state or local law
under common law, atatuta, regulation or otherwise) or judicial or administrative interpretation of
such, including without limitation petroleum or natural gas.
5.13 Site Visits, Observation and Testing. Beneficiary and its agents and
representatives shall have the right at any reasonable time, after giving reasonable notice to Grantor, to
enter and visit the Property for the purposes of performing appraisals, observing the Property, taking and
removing environmental samples, and conducting tests on any part of the Property. Grantor shall
reimburse Beneficiary on demand for the costs of any such environmental investigation and testing.
Beneficiary will make reasonable efforts during any site visit, observation or testing conducted pursuant
this Paragraph hoavoid interfering with Grantor's use Ofthe Property. Beneficiary isunder noduty,
however, to visit or observe the Property or to conduct tests, and any such acts by Beneficiary will be
solely for the purposes of protecting Beneficiary's security and preserving Beneficiary's rights under this
Deed ofTrust. No site visit, observation or testing or any report or findings made as a result thereof
("Envinonmenba|Report')(i) will result inawaiver ofany default ofGrantor; (ii)impose any liability un
Beneficiary; or (iii) be a representation or warranty of any kind regarding the Property (including its
condition or value or compliance with any laws) or the Environmental Report (including its accuracy or
completeness). In the event Beneficiary has @duty or obligation under applicable |evvo. regulations or
other requirements to disclose an Environmental Report to Grantor or any other party, Grantor authorizes
Beneficiary tomake such udisclosure. Beneficiary may also disclose anEnvironmental Report tuany
regulatory authority, and to any other parties as necessary or appropriate in Beneficiary's judgment.
Grantor further understands and agrees that any Environmental Report or other information regarding a
site visit, observation or testing that is disclosed to Grantor by Beneficiary or its agents and
representatives is to be evaluated (including any reporting or other disclosure obligations of Grantor) by
Grantor without advice orassistance from Beneficiary.
514 � subject toa
condominium declaration of conditions, covenants and restrictions recorded in the official records of the
county in which the Property is located (the "Declaration"), the following provisions shall apply.
(a) The provisions contained in this Deed ofTrust are obligations ofGrantor in
addition to Grantor's obligations under the Declaration with respect to similar matters, and shall
not restrict or limit Grantor's duties and obligations to keep and perform promptly all of its
obligations aounit owner under the Declaration.
(b) Grantor shall at all times fully perform and comply with all the agnaennanto,
covenants, terms and conditions imposed upon unit owners under the Declaration, and if Grantor
fails to do so, Beneficiary may (but shall not be obligated to) take any action Beneficiary deems
necessary ordesirable boprevent orcure any default thereunder. Beneficiary may also take such
action as it deems necessary or desirable to cure a default under the Declaration by Grantor or
any other party occupying the unit(s) (a "Unit Occupant") encumbered by this Deed of Trust, upon
receipt by Beneficiary from the condominium association under the Declaration (the
"Association") of written notice of such default, even though the existence of such default or the
nature thereof may be questioned or denied by Grantor or by any party on behalf of Grantor.
Beneficiary may pay and expend such sums of money as Beneficiary in its sole discretion deems
necessary to prevent or cure any default by Grantor or a Unit Occupant, and Grantor hereby
agrees to pay to Beneficiary, immediately and without demand, all such sums so paid and
expended by Beneficiary, together with interest thereon from the date of each such payment at
the rate (the "Demand Rate") of two percent (2%) in excess of the then current rate of interest
under the Debt Instrument. All sums oopaid and expended byBeneficiary, and the interest
thereon, shall beadded tVand besecured bythe lien ofthis Deed ofTrust. At Beneficiary's
request, Grantor will submit satisfactory evidence of payment of all of its monetary obligations
under the Declaration (including but not limited to rents, taxes, assessments, insurance premiums
and operating expenoes).
8-First Amended and Restated Deed ofTrust
U1BOA\965038us\98505-0818{880ENI{AND0CGV][Tdnv1doo
(c) At evidence of payment
of all of its monetary obligations under the Declaration (including but not limited to rents, taxes,
assessments, insurance premiums and operating expenses).
(d) Grantor shall advise Beneficiary in writing of the giving of any notice to
Grantor bvthe Association umdertheDecl@ration ofany default byGrantor aaunit owner or by a
Unit Occupant thereunder in the performance or observance of any of the terms, conditions and
covenants to be performed or observed by Grantor or such Unit Occupant thereunder, and
Grantor shall deliver boBeneficiary otrue copy ofeach such notice.
(e) Ifany action, proceeding,motion or notice shall be commenced or filed in
respect of the Association in connection with any case (including a case commenced or filed
under the Bankruptcy Code)' Beneficiary shall have the updon, to the exclusion of Grantor,
exercisable upon notice from Beneficiary hoGrantor, toconduct and control any such litigation
with counsel ofBeneficiary's choice. Beneficiary may proceed inits own name orinthe name of
Grantor in connection with any such litigation, and Grantor agrees to execute any and all powers,
authorizations, consents or other documents required by Beneficiary in connection therewith.
Grantor shall, upon demand, pay to Beneficiary all costs and expenses (including attorneys' fees)
paid or incurred by Beneficiary in connection with the prosecution or conduct of any such
proceedings. Any such costs or expenses not paid by Grantor as aforesaid shall be secured by
the lien ofthis Deed ofTrust and shall be added tothe principal amount ofthe indebtedness
secured hereby. Grantor shall not commence any action, suit, proceeding orcase, orfile any
application or make any motion, in respect of the Declaration in any such case without the prior
written consent ufBeneficiary.
UlGrantor will use its best efforts to obtain and deliver to Beneficiary within
twenty (20days after written request by Beneficiary, anestoppel certificate from the Association
setting forth (i) the name of the unit owner, (ii) that the Declaration has not been modified or, if it
has been modified, the date of each modification (together with copies of each such modification),
(iii) the amount of common expenses and other assessments payable by Grantor as unit owner
under the Declaration, (iv) the date to which all common expenses and other assessments have
been paid by Grantor as unit owner under the Declaration, (v) whether there are any alleged
defaults by Grantor or a Unit Occupant under the Declaration and, if so, setting forth the nature
thereof in reasonable detail, and (vi) as to such other matters as Beneficiary may reasonably
request.
(g)Grantor represents and warrants to Beneficiary that as ofthe date hereof, nu
default under the Declaration has occurred and iscontinuing.
(h)Gnantor shall take such actions asm�be�e�n���ineu����e
policy acceptable inform, amount, and extent of
coverage to Beneficiary.
0Grantor shall not, except after notice toBeneficiary and with Beneficiary's
prior written consent, either partition or subdivide the Property or consent to:
/i) the abandonment o[termination ofthe oondominium(a)
encumbered bvthis Deed [f Trust, except for abandonment ortermination required bv
law in the case of substantial destruction by fire or other casualty or in the case of a
taking bycondemnation oreminent domain;
(ii) any amendment hoany provision ofthe Declaration, the
Association's bylaws orarticles or any rules and regulations promulgated by the
Association;
(iii) termination of professional management and assumption ofself-
management oftheAueociation;or
10-First Amended and Restated Deed of Trust
U:\BOA\9b5038us\96503-081B0WDEw\LOANDOOG\D0cinv1doc
�fE IDEZ IAN—
APPROVED
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Permit Number.
(iv) any action which would have the effect of rendering the public
liability insurance coverage maintained by the Association unacceptable to Beneficiary.
6. ACCELERATING TRANSFERS DEFAULT AND REMEDIES.
6.1 Accelerating Transfers
(a) "Accelerating Transfer" means any sale, contract to sell, conveyance,
encumbrance, or other transfer, whether voluntary, involuntary, by operation of law or otherwise,
of all or any material part of the Property or any interest in it, including any transfer or exercise of
any right to drill for or to extract any water (other than for Grantor's own use), oil, gas or other
hydrocarbon substances or any mineral of any kind on or under the surface of the Property. If
Grantor is a corporation, "Accelerating Transfer" also means any transfer or transfers of shares
possessing, in the aggregate, more than fifty percent (50%) of the voting power. If Grantor is a
partnership, "Accelerating Transfer" also means withdrawal or removal of any general partner,
dissolution of the partnership under applicable law, or any transfer or transfers of, in the
aggregate, more than fifty percent (50%) of the partnership interests. If Grantor is a limited
liability company, "Accelerating Transfer" also means withdrawal or removal of any managing
member, termination of the limited liability company or any transfer or transfers of, in the
aggregate, more than fifty percent (50%) of the voting power or in the aggregate more than fifty
percent of the ownership of the economic interest in the Grantor.
(b) Grantor agrees that Grantor shall not make any Accelerating Transfer, unless
the transfer is preceded by Beneficiary's express written consent to the particular transaction and
transferee. Beneficiary may withhold such consent in its sole discretion. If any Accelerating
Transfer occurs, Beneficiary in its sole discretion may declare all of the Secured Obligations to be
immediately due and payable, and Beneficiary and Trustee may invoke any rights and remedies
provided by Paragraph 6.3 of this Deed of Trust.
6.2 Events of Default. The occurrence of any one or more of the following events, at the
option of Beneficiary, shall constitute an event of default ("Event of Default") under this Deed of Trust:
(a) Obligor fails to make any payment, when due, under the Debt Instrument
(after giving effect to any applicable grace period), or any other default occurs under and as
defined in the Debt Instrument or in any other instrument or agreement evidencing any of the
Secured Obligations and such default continues beyond any applicable cure period;
(b) Grantor fails to make any payment or perform any obligation which arises
under this Deed of Trust;
(c) Grantor makes or permits the occurrence of an Accelerating Transfer in
violation of Paragraph 6.1;
(d) Any representation or warranty made in connection with this Deed of Trust or
the Secured Obligations proves to have been false or misleading in any material respect when
made;
(e) Any default occurs under any other deed of trust on all or any part of the
Property, or under any obligation secured by such deed of trust, whether such deed of trust is
prior to or subordinate to this Deed of Trust; or
(f) An event occurs which gives Beneficiary the right or option to terminate any
Swap Contract secured by this Deed of Trust.
6.3 Remedies. At any time after the occurrence of an Event of Default, Beneficiary and
Trustee shall be entitled to invoke any and all of the rights and remedies described below, as well as any
other rights and remedies authorized by law. All of such rights and remedies shall be cumulative, and the
exercise of any one or more of them shall not constitute an election of remedies.
11 — First Amended and Restated Deed of Trust
U:\BOA\96503 Bus\96503-081 BOWDEMLOAN DOMDOT cinv3.doc
(a) Beneficiary may declare any orall of the Secured Obligations toLedue and
payable immediately, and may terminate any Swap Contract secured by this Deed of Trust in
accordance with its terms.
(b) Beneficiary may apply to any court of competent jurisdiction for, and obtain
appointment of, areceiver for the Property.
/c\ Beneficiary, in pen;on, by agent or by court -appointed nacoiver, may enter,
take possession of, manage and operate all or any part of the Pn)perty, and in its own name or in
the name of Grantor sue for or otherwise collect any and all Rents, including those that are past
due, and may also do any and all other things in connection with those actions that Beneficiary
may in its sole discretion consider necessary and appropriate to protect the security of this Deed
of Trust. Such other things may include: entering into, enforcing, modifying, or canceling leases
on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants;
fixing or modifying Rents; completing any unfinished construction; contracting for and making
repairs and alterations; performing such acts of cultivation or irrigation as necessary to conserve
the value of the Property; and preparing for harvest, harvesting and selling any crops that may be
growing onthe property, Grantor hereby irrevocably constitutes and appoints Beneficiary aeits
aftorney-|n-facttoperform such acts and execute such documents esBeneficiary inits sole
discretion may consider to be appropriate in connection with taking these measures, including
endorsement ofGrantor's name Vnany instruments. Grantor agrees todeliver toBeneficiary all
books and records pertaining to the Property, including computer -readable memory and any
computer hardware or software necessary to access or process such memory, as may
reasonably be requested by Beneficiary in order to enable Beneficiary to exercise its rights under
this Paragraph.
(d) Either Beneficiary or Trustee may cure any breach or default of Grantor, and
if it chooses to do so in connection with any such cure, Beneficiary or Trustee may also enter the
Property and/or do any and all other things which it may in its sole discretion consider necessary
and appropriate toprotect the security ofthis Deed nfTrust. Such other things may include:
appearing in and/or defending any action or proceeding which purports to affect the security of, or
the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing,
contesting or compromising any encumbrance, charge, lien or claim of lien which in Beneficiary's
orTrustee's sole judgment |Sormay be senior inpriority h)this Deed OfTrust, such judgment Cf
Beneficiary or Trustee to be conclusive as among the parties to this Deed of Trust; obtaining
insurance and/or paying any premiums or charges for insurance required to be carried under this
Deed of Trust; otherwise caring for and protecting any and all of the Property; and/or employing
counsel, accountants, contractors and other appropriate persons to assist Beneficiary or Trustee.
Beneficiary and Trustee may take any of the actions permitted hereunder either with or without
giving notice boany person.
/e\ Beneficiary may bring mnaction inany court ofcompetent jurisdiction tn
foreclose this instrument or to obtain specific enforcement of any of the covenants or agreements
ofthis Deed ofTrust.
(f) Beneficiary may cause the Property which consists solely of real property to
be sold by Trustee as permitted by applicable law. Before any such trustee's sole, Beneficiary or
Trustee shall give such notice of default and/or sale as may then be required by law. When all
time periods then legally mandated have expired, and after such notice of sale as may then be
legally required has been given, Trustee shall sell the Property, either as a whole or in separate
parcels, and in such order as Trustee may determine, at a public auction to be held at the time
and place specified inthe notice ofsale. Neither Trustee nor Beneficiary shall have any
obligation to make demand on Grantor before any trustee's sale. From time to time in
accordance with then applicable law, Trustee may, and in any event at Beneficiary's request
aheU' postpone any trustee's a@|e by public announcement at the time and place noticed for that
sale. At any trustee's $a|a' Trustee shall ae|| to the highest bidder atpublic auction for cash in
lawful money ofthe United States, orsuch other form ofpayment satisfactory hoTrustee. Any
person, including Gnantor. Trustee or Beneficiary, may purchase edthe trustee's sale tothe extent
permitted bythen applicable law. Beneficiary shall have the benefit ofany law permitting credit
12—First Amended and Restated Deed ofTrust
WBOA\96503Buo\96503-081a0vvoEw\L[AwooC8xDOTdmm.doc
bids. Trustee shall execute and deliver to the purchaser(s)odeed or deeds conveying the
property being sold without any covenant or warranty whatsoever, express or implied. The
recitals in any such deed of any matters or facts, including any facts bearing upon the regularity
or validity of any trustee's sale, shall be conclusive proof of their truthfulness. Any such deed
shall boconclusive against all persons aohothe facts recited init.
(g) Beneficiary may proceed under the Uniform Commercial Code aatoall or
any part ofthe Personalty, and inconjunction therevvthmoyexerciaooUofther/ghte.namedies
and powers {f8secured creditor under the Uniform Commercial Code. When all time periods
then legally mandated have expired, and after such notice of sale as may then be legally required
has been given, Trustee may sell the Personalty atapublic sale tobeheld atthe time and place
specified inthe notice ofsale. |tshall bedeemed commercially reasonable for the Trustee bo
dispose of the Personalty without giving any warranties as to the Personalty and specifically
disclaiming all disposition warranties. Alternatively, Beneficiary may choose to dispose of some
or all of the Property, in any combination consisting of both personal property and real property, in
one sale to be held in accordance with the law and procedures applicable to real property, as
permitted by Article 9 of the Uniform Commercial Code. Grantor agrees that such asale of
personal property together with real property constitutes a commercially reasonable sale of the
personal property.
6.4 Application of Sale Proceeds and Rents.
(a) Beneficiary and Trustee shall apply the proceedsofany sale ofthe Property
inthe following manner: first, topay the portion ofthe Secured Obligations attrbutabetothe
costs, fees and expenses of the sale, including costs of evidence of title in connection with the
sale; and, second, to pay all other Secured Obligations in any order and proportions as
Beneficiary inits sole discretion may choose. The remainder, ifany, shall beremitted bothe
person orpersons entitled thereto.
(b) Beneficiary shall apply any and all Rents collected byit, and any and all
sums other than proceeds of any sale of the Property which Beneficiary may receive or collect
under Paragraph G.3.inthe following manner: first, topay the portion ofthe Secured Obligations
attributable to the costs and expenses of operation and collection that may be incurred by
Trustee. Beneficiary or any receiver; and, aecond, to pay all other Secured DhUQaUone in any
order and proportions oaBeneficiary inits sole discretion may choose. The remainder, ifany,
shall beremitted tothe person orpersons entitled thereto. Beneficiary shall have noliability for
any funds which itdoes not actually receive.
T MISCELLANEOUS PROVISIONS
7.1 No Waiver or Cure.
(a) Each waiver by Beneficiary orTrustee must beinwriting, and Dowaiver shall
bgconstrued aaacontinuing waiver. Nuwaiver shall beimplied from any delay orfailure bv
Beneficiary orTrustee totake action onaccount ofany default ofGrantor. Consent by
Beneficiary or Trustee to any act or omission by Grantor shall not be construed as aconsent to
any other or subsequent act or omission or to waive the requirement for Beneficiary's or Trustee's
consent tobeobtained {nany future orother instance.
(b) |fany ofthe events described below occurs, that event alone shall not cure
or waive any breaoh. Event of Default or notice of default under this Deed of Trust or invalidate
any act performed pursuant toany such default ornotice; ornullify the effect ofany notice of
default or sale (unless all Secured Obligations then due have been paid and performed); or impair
the security ofthis Deed ufTrust; orprejudice Beneficiary.Trueteeoranyreceivarintheaxercioe
of any right or remedy afforded any of them under this Deed of Trust; or be construed as an
affirmation by Beneficiary of any tenancy, lease or option, or a subordination of the lien of this
Deed ofTrust:
13—First Amended and Restated Deed of Trust
WBx}X90503Bvam6503-081 sOvvoEN\LOANDOCSxz0TdnO.uoc
of the (i) Beneficiary, it�Sog�Dtor8ns�8kx�rh3ke�pOo��S�|oDOf��|DrGDyp�
(i0 Beneficiary collects and applies Rents, either with Vrwithout taking
possession ofall orany part ofthe Property;
(iii) Beneficiary receives and applies hmany Secured Obligation
proceeds of any Pu}p8dx, including any proceeds of insurance po||ciaG, oondernnoUOO
awards, or other claims, property or rights assigned to Beneficiary under this Deed of
Trust;
(iv) Beneficiary makes asite visit, observes the Property and/or
conducts tests thereon;
.
(v) Beneficiary receives any sums under this Deed ofTrust orany
proceeds of any collateral held for any of the Secured Obligations, and applies them to
one ormore Secured Obligations;
(vU Beneficiary, Trustee nrany receiver performs any act which itis
empowered orauthorized tuperform under this Deed ofTrust orinvokes any right or
remedy provided under this Deed ofTrust; or
/vii\ Any notice ofdefault and election tosell under this Deed oƒTrust im
cancelled.
7.2 Powers of Beneficiary and Trustee.
(a) Trustee shall have noobligation toperform any act which itkaempowered to
perform under this Deed ofTrust unless hharequested todueoinwriting and iane000nob�
indemnified against loss, cost, liability and expense.
'
dd Beneficiary may take any of the actions permitted under Paragraphs 6.3(b)
and/or 6.3(c) regardless of the adequacy of the security for the Secured Obligations, or whether
any or all of the Secured Obligations have been declared to be immediately due and payable, or
whether notice of default and election to sell has been given under this Deed of Trust.
(c) From time to time, Beneficiary or Trustee may apply to any court of
competent jurisdiction for aid and direction in executing the trust and enforcing the rights and
remedies created under this Deed of Trust. Beneficiary or Trustee may from time to time obtain
orders or decrees directing, confirming or approving acts in executing this trust and enforcing
these rights and remedies.
73 Nomerger shall occur aearesult of acquiring any other estate
ino/any other lien onthe Property unless Beneficiary consents b/amerger 'nwriting.
7.4 Joint and Several Liability. If Grantor consists of more than one person, each shall
be jointly and severally liable for the faithful
intlyandeaveralk/|i8bleforthefahhfu|performance ofall ofGrantor's obligations underthiaOeedof
7.5 Applicable Law. This Deed ofTrust shall begoverned bvthe laws Vfthe State of
7]6 Successors in Interest. The terms, covenants and conditions ofthis Deed ofTrust
shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties.
However, this Paragraph does not waive the provisions of Paragraph 6. 1.
14-First Amended and Restated Deed of Trust
U:\BOA\96503Ouo\96503-0818OVVDENICANDOC3V]OTdm8.dno
�
78 Waiver of Class Actions. The terms "Clainf or "Claims" refer toany disputes,
controversies, claims, counterclaims, allegations of liability, theories ofdamage, ordefenses between
Bank of America, N.A., its subsidiaries and affiliates, on the one hand, and the other parties to this Deed
of Trust, on the other hand (all of the foregoing each being referred to as a "Party" and collectively as the
"Parties"). Whether instate court, federal court, orany other venue, jurisdiction,mrbefore any tribunal,
the Parties agree that all aspects of litigation and trial of any Claim will take place without resort to any
form ofclass orrepresentative action. Thus the Parties may only bring Claims against each other inan
individual capacity and waive any right they may have to do so as a class representative or a class
member inaclass orrepresentative action. THIS CLASS ACTION WAIVER PRECLUDES ANY PARTY
FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE
ACTION REGARDING ACLAIM.
79 Interpretation. Whenever the context requires, all words used )nthe singular will be
construed to have been used in the plural, and vice versa, and each gender will include any other gender.
The captions of the sections of this Deed of Trust are for convenience only and do not define or limit any
terms or provisions. The word "inc|ude/eY' nnaanm"ino|ude/o\. without limitation," and the word "including"
means "induding.but not limited to." The word "obUgoUono"iaused inits broadest and most
comprehensive sense, and includes all primary, secondary, direct, indirect, fixed and contingent
obligations. It further includes all principal, interest, prepayment charges, late charges, loan fees and any
other fees and charges accruing or assessed at any time, as well as all obligations to perform acts or
satisfy conditions. No listing of specific instances, items or matters in any way limits the scope or
generality Ofany language ofthis Deed ofTrust. The Exhibits tothis Deed ofTrust are hereby
incorporated in this Deed of Trust.
7.0 Whenever Grantor ioobligated to pay or reimburse
Beneficiary orTrustee for any attorneys' fees, those fees shall include the allocated costs for services of
in-house counsel to the extent permitted by applicable law.
7.11 Waiver of Marshaling. Grantor waives all rights,legal and equitable, itmay now or
hereafter have torequire marshaling ofassets or to direct the order inwhich any of the Property will be
sold inthe event ofany sale under this Deed ofTrust. Each successor and assign ofGrantor, including
any holder of a lien subordinate to this Deed of Trust, by acceptance of its interest or lien agrees that it
shall bebound bvthe above waiver, gaifithad given the waiver itself.
7.12 Severabilily. If any provision of this Deed ofTrust should beheld unenforceable or
void, that provision shall bedeemed severable from the remaining provisions and innoway affect the
validity of this Deed of Trust except that if such provision relates to the payment of any monetary sum,
then Beneficiary may, at its option, declare all Secured Obligations immediately due and payable.
713Notices. Grantor hereby requests that ecopy ofnotice of default and notice of sale
bemailed hoitotthe address set forth below. That address iealso the mailing address ofGrantor oa
debtor under the Uniform Commercial Code. Beneficiary's address given below iathe address for
Beneficiary oesecured party under the Uniform Commercial Code.
15-First Amended and Restated Deed ofTrust
V:\B(A\98503Bus\98503-081BQVVDENLOANDOCgV]OTcinv1doo
�fE IDIAN—
APP OVED
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rePon
Permit N.—
for Notices to Grantor: 400 Overland Road
Meridian, ID 83642
Address for Notices to Beneficiary: Bank of America, N.A.
NCl-001-05-13
One Independence Center
101 North Tryon Street
Charlotte, NC 28255-0001
above written. IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first
BOWDEN PROPERTIES, LLC,
an Idaho limited liability company
v
By:. c�A�JU,
PATRI RANDI, VMIe b�7yya Manager
By:
THOMAS T. NICHOLSON, Manager -
By: BLACK CREEK LIMITED PARTNERSHIP,
an Idaho 1pited partnership, Mern r
By:
Tho "as T. Nicholson, 6enerai PartWr'
By:
Diana R. Nicholson, General Partner
BLACK MOR, LLC,
an Idaho limited liability company
Cad
By:
PATRI K MORANDI, Member ,nd anager
By:
THOMAS T. NICHOL§dN,_M_anager
By: BLACK CREEK LIMITED PARTNERSHIP,
an Idaho lqiced partnership, Me be
,
By:
Thomas as T. Nicholson, General Partner
By:
Diana- R. -Nicholson, General Partner
[ACKNOWLEDGMENTS ON FOLLOWING PAGE]
16 — First Amended and Restated Deed of Trust
U:\BOA\96503 BusN96503-081 BOWDENIOAN DOCS\DOT cinv1doc
�fE IDIAN—
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COUNTY OF aA
ss.
This record was acknowledged before me on J4111U" 20�?by PATRICK MORANDI,
Member and Manager of (i) BOWDEN PROPERTIES, LLC, an Ida limited liability company, and (ii)
BLACK MOR, LLC, an Idaho limited liability company.
-N—arne Pri ted:
D7 Zy�wk
F
"Sl' S-A FO
JOSH STAFFORD Not r blic in and for said State
C COMM ISSION#321481 My commission expires:
0.
NOTARY PUBLIC
Ff�3TXITE OF IDAHO
STATE OF IDAHO
ss.
COUNTY OF A-DA
This record was acknowledged before me on 1"d 20r, by Thomas T. Nicholson, as (i)
Manager of BOWDEN PROPERTIES, LLC, an Idaho limItled Lliability company, (ii) Manager of BLACK
MOR, LLC, an Idaho limited liability company, and (iii) General Partner of BLACK CREEK LIMITED
PARTNERSHIP, an Idaho limited partnership, Member of BOW N PROPERTIES, LLC, an Idaho
limited liability company, and BLACK MOR, LLC, an Idaho limliability company.
e P ry F
JOSH STAFFORD rMota
COMMISSION #3214Z y co
NOTARY PUBLIC
3T aTE OF I DAHD
STATE OF IDAHO
in and for said State
n expires:
COUNTY OF ss.
This record was acknowledged before me on 20!�e by Diana R. Nicholson, as
General Partner of BLACK CREEK LIMITED PARTNERSHIP, an Idaho limited partnership, Member of
BOWDEN PROPERTIES, LLC, an Idaho limited liability compa and BLACK OR, LLC, an Idaho
limited liability company.
JOSH STAFFORD
COMMISSION #32148
NOTAR"f'i�USLIC
STATE OF IDAHO
17 — First Amended and Restated Deed of Trust
blic in and for said State
ission expires:
UABOX96503 Bus\96503-081 BOWDEN\LOAN DOCS\DOT cinv3.doc
� fE IDIAN—
APP OVED,
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D.
Permit N.—
EXHIBIT A TO DEED OF TRUST
Exhibit A to DEED OF TRUST executed as of January 13, 2020, by BOWDEN PROPERTIES,
LLC, an Idaho limited liability company, and BLACK MOR, LLC, an Idaho limited liability company,
collectively, as "Grantor" to FIRST AMERICAN TITLE INSURANCE COMPANY as "Trustee" for the
benefit of BANK OF AMERICA, N.A., a national banking association, as "Beneficiary."
Description of Property
Water Park:
Parcel 1:
A parcel of [and being a portion of Lots 2 and 3 in Block 1 of Interstate Center, according to
the official plat thereof, filed in Book 74 of Plats at Page(s) 7656 and 7657, Official Records of
Ada County, Idaho, which, portion is all of said lots lying West of Blue Martin Lane, and which
is more particularly described as follows:
Commencing at the Southwest corner of said Lot 2; thence
North 0 1'03'11" East 280.18 feet to a point, thence
North 00'13'37' West 84,85 feet to a point; thence
South 89'46'23" East 295.48 feet to a point; thence
South 00'13'37" West 365.00 feet to a point; thence
North 89"46'23" West 298.85 feet to the Point of Beginning.
Ptitcol 2.
A parcel of land being part of Lots 2, 3, 23 and 24 in Block I of Interstate Center, according to
the official plat thereof, filed in Book 74 of Plats at Page(s) 7656 and 7657, Official Records of
Ada County, Idaho, which parcel is more particularly described as follows:
Commencing at the Northwest corner of said Lot 3; thence
South 8946'23" East 295,48 feet to a point lying on the Westerly boundary of the private road
easement for Blue Martin Lane as shown on said plat, said point being the Real Point of
Beginning; thence
South 0013*37' West 365.00 feet along said private road boundary to a point; thence
South 89'46'23" East 60.00 feet to a point lying on the Easterly boundary of the private read
easement for Blue Martin Lane as shown on said plat; thence
North 00'13'37" East 496,01 feet to a point of curve-, thence along to curve to the right, said
curve having a central angle of 4424'55". a radius of 20,00 feet, and a long chord bearing
North 22'26'05" East 15.12 feet to a point of curve; thence along a curve to the left, said curve
having a central angle of 90'00'00", a radius of 50.00 feet, and a long chord bearing North
00'2 V28" West 7031 feet to a point; thence
South 44'38'32" West 50.00 feet to a point lying on the centerline of said private road; thence
South 00"I T37' West 180.00 feet to a point; thence,
North 89"46'23" West 30.00 feet to the Real Point of Beginning,
Parcel 3:
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All of Lots 7, 9, 19 through 22, and 25 through 28 in Block 1 of Interstate Center, according to
the official plat thereof, filed in Book 74 of Plats at Page(s) 7656 and 7657, Official Records of
Ada County, Idaho.
M
Part of Lots 23 and 24 in Block 1 of Interstate Center, according to the official Plat thereof,
filed in Book 74 of Plats at Page(s) 7656 and 7657, Official Records of Ada County, Idaho,
which part is more particularly described as follows:
Commencing at the Northeast comer of said Lot 23; thence
South 00'1:3'3TWest 545.00 feet to a point; thence
North 89'46'23" West 160.00 feet to a point; thence
North 000 1 337ft East 496.01 feet to a point of curve; thence along a curve to the right, said
curve having a central angle of 44"24'55', a radius of 20M feet, and a long chord taring
North 22'26*05" East 15,12 feet to a point of curve; thence along a curve to the left, said curve
having a central angle of 44'24'55", a radius of 50,00 feet, and a long chord bearing North
221126'051 East 37.80 feet to a point; thence
South 89'46'23" East 140.00 feet to the Point of Beginning.
0M
Part of Lot 5 in Block 1 of Interstate Center, according to the official plat thereof, filed in Book
74 of Plats at Page(s) 7656 and 7657, Official Records of Ada County, Idaho, which part is
more particularly described as follows:
Commencing at the Southeast comer of Lot 5; thence
North 89046'23" West 199.99 feet to a point of curve; thence along a curve to the left, said
curve having a central angle of 45935'05", a radius of 50,00 feet, and a long chord bearing
North 22'33'55" West 38.74 feet to a point of curve, thence along a curve to the left, said
curve having a central angle of 44"2455', a radius of 20.00 feet, and a long chord bearing
South 67°3356' East 15,12 feet to a point; thence
South 8946'23' East 201,00 feet to a point; thence
South 001337' West 30.00 feet to the Point of Beginning.
Parcel 4:
A parcel of land being the Westerly 88.80 feet of Lot 10 in Block 1 of Interstate Center,
according to the official plat thereof, filed in Book 74 of Plats at Page(s) 7656 and 7657,
Official Records of Ada County, Idaho, located In a portion of the Southeast quarter of Section
13, Township 3 North, Range 1 West, Boise Meridian, Ada County, Idaho, and more
particularly described as follows,
[CONTINUED ON FOLLOWING PAGE]
19 — First Amended and Restated Deed of Trust
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Beginning at a 5/8 inch rebar marking the Southwest corner of said Lot 10; thence along the
West line of said lot
North 00'13'37" East a distance of 379.09 feet to a point, said point marking the Northwest
corner of said lot; thence leaving said West line and along the North line of said lot
South 67'45'31" East a distance of 95.78 feet to a point, thence leaving said North line and
parallel with said West line
South 00'13'37'West a distance of 352.16 feet to a 5/8 inch rebar marking the corner
common to Lots 18 and 19 and said Lot 10 of said subdivision: thence along the are of a Curve
to ffie left having a radius of 300.00 feet, an arc length of 7157feet, a central angle of
1VOT01 ", and a chord bearing North 82'4453" West a distance of 73.38 feet to a 5,18 inch
rebar thence
North 89*46'23" West a distance of 15.97 feet to the Point of Beginning,
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20 — First Amended and Restated Deed of Trust
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Parcel A:
A portion of Lot 5 in Block 1 of Interstate Center, according to the official plat thereof, filed in
Book 74 of Plats at Page(s) 7656 and 7657, Official Records of Ada County, Idaho, being a
portion of the Southeast quarter of Section 13, Township 3 North, Range 1 West, Boise
Meridian, in Ada County, Idaho, more particularly described as follows:
Commencing at the Southeast corner of Section 13; thence
North 8946'23" West 412,04 feet to a point, thence:
North 89046'23" West 1696.99 feet to a mi
nt; oint; thence
North 00'31'11" East 9.24 feet to a point: thence
North 01'03'1 V East 340.95 feet to a point; thence
North 00'13'37" West 229,32 feet to a point, thence
North 0003859" East 35,53 feet to a point, said point being the Real Point of Beginning;
thence
North 00'38'59" East 193.34 feet to a point; thence
North 01 '19'50" West 21.81 foot to a point; thence
North 00"31'11" East 272.20 feet to a point; thence
South 89'33'35" East 384.84 feet to a point; thence
South 85044'44" East 189,76 feet to a point; thence
South 00'13'37" West 442.57 feet to a point, thence
North 89*4623" West 201.00 feet to a point of curve; thence along a curve to the right, said
curve having a central angle of 44'24'55", a radius of 20.00 feet, and a long chord bearing
North 67'33'55" West 15.12 feet to a point of curve, thence along a curve to the left, said
curve having a central angle of 134'24'55', a radius of 50.00 feet, and a long chord bearing
South 67"26'05" West 92.19 feet to a point, thence
North 89'4623' West 276.36 feet to the Real Point of Beginning.
Parcel B:
A parcel of land being a portion of Lot 4 in Block 1 of Interstate Center, according to the official
plat thereof, filed in Book 74 of Plats at Page(s) 7656 and 7657, Official Records of Ada
County, Idaho, which portion is all of such lot lying West of Blue Marlin Lane, and which is
more particularly described as follows;
Commencing at the Northwest comer of said Lot 4; thence
South 00'38'59" West 35.53 feet along the Westerly boundary of said lot to a point; thence
South 00013'3T East 144.47 feet along the Westerly boundary of said lot to a point; thence
South 89'4623" East 295.48 feet along the Southerly boundary of said lot to a point', thence
North 00"13'37" East 131.00 feet along the Westerly boundary of Blue Marlin Lane to a point
of curve; thence along a curve to the left, said curve having a central angle of 44'24'55", a
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radius of 20.00 feet, and along chord bearing North 21'58'51' West '15.12 feet to a point of
curve; thence along a curve to the right, said curve having a central angle of 44'24'55", a
radius of 50.00 feet, and a long chord bearing North 21'5851" West 37.80 feet to a point of
curve; thence
North 89*4623' West 27636 feet along the Northerly boundary of .said lot to the Point of
Beginning.
Parcel C:
A parcel of land being part of Lots 4 and 5 in Bleck I of Interstate Center, according to the
official plat thereof, filed in Book 74 of Plats at Page(s) 7656 and 7657, Official Records of
Ada County, Idaho, which parcel is more particularly described as follows:
Commencing at the Southwest comer of said Lot 4; thence
South 89"46'23" East 295.48 feet to a point lying on the Westerly boundary of a private road
easement for Blue Marlin Lane as shown on said plat, said point being the Real Point of
Beginning, thence
North 00'13'37" East 131.00 feet along said private road boundary to a point of curve; thence -
along a curve to the left, said curve having a central angle of 44'24'55", a radius of 20.00 feet,
and a long chord bearing North 21458'51" West 15-12 feet to a point of curve; thence along a
curve to the right, said curve having a central angle of 178'49'50", a radius of 50.00 feet, and
a long chord bearing North 45'13'37' East 99.99 feet to a point; thence
South 44038'32" West 50.00 feet to a point lying on the centerline of said private read; thence
South 00*13'37" West 180,00 feet to a point; thence
North 891462XWest 30,00 feet to the Real Point of Beginning.
Parcel D:
Lot 6 in Block I of Interstate Center, according to the official plat thereof, filed in Book 74 of
Plats at Page(s) 7656 and 7657, Official Records of Ada County, Idaho,
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22 — First Amended and Restated Deed of Trust
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Pn7E—-L:_-��dditional Parcels:
Lot 1O.except for a Parcel of land being the Westerly 88.80feet of Lot10, Block 1ofInterstate Center
Subdivision amRecorded inBook 74sdPage 7O5OCfPlats, |ocgtedinapurbonCfthe8E1/4of8eoU0n
13, Township 3 North, Range 1 West, Boise Meridian, City of Meridian, Ada County, Idaho and more
particularly described aafollows:
BEGINNING at a 5/8hnch rebar marking the SW corner of said Lot10, thence along the West line of said
Lot NO0"13'37"E adiotanoe of37S.08feet boo point, said pointmarking the NVVcorner of said Lot
Thence leaving said West line and along the North line of said Lot S67'45'31"E a distance of 95.78 feet to
a point; Thence leaving said North line and parallel with said West line SOOO I 3'37"W a distance of 352.16
feet to a5/8inch rebarmarking the corner common to Lots 18ond 18and said Lot 1Dofsaid Gubdivioion
Thence along the arc ofecunehnthe left having aradius nf3OO.00feet, enarc length nf '
73.57feet. acentral angle of14°03'01". and ochord bearing N82°44'53"VVadistance of73.38feet toa
5/8inch rebar;Thence N88°48'23"VVadistance of15.07feet (othe POINT {}FBEGINNING.
Lots 11, 12, 13, 14, 17and 18ofBlock 1 ufInterstate Center, aaubdhvimion. according hothe official plat
U1oneof, Records ofAda County, Idaho.
Aparcel ofland being aportion ofexisting |TD|-O4Right-.mhoatedinthe8outhegot[Juarte[ofthe
Southeast Quarter of Section 13, Township 3 North, Range 1 West, Boise -Meridian, City of Meridian, Ada
{}ounh/. |daho, being more particularly described as follows:
COMMENCING at the Southeast corner of said Section 13 (Corner Perpetuation & Filing Record No.
1O7153517);thence, along the East line ofsaid Section 13.
A)N1"O1'39"E..41U]57feet; thence, leaving said East line,
EBN.88"50'21'W,78.00feet tothe existing westerly right-of-way line of State Highway OQ.aaehovvncm
the official Rigplans for the |-84.Meridian Road Interchange, Project No. AO18(93Q).located
78.00feet Lt. from GH-8QProject Cantadine8taton422+34.37;thanma,a|ongmaidexieUnghgh
the following courses:
[. �N.U1"O1'39"E,1UO.44feet �oab*d78.UOf��tLihnnn8H-8QP j�ctCenterina���t�n4�3+�4.81�. � '
thence,
D) N.65°41'05W.. 21.77feet. located S8.00feet Lt. from 8H458 Project Centerline Station 423+43.42;
thence.
E\ N.01°01'39^E.^ 23.05feet. located S8.UUfeet Lt. from 8H-09 Project Centerline Station 423+67.37;
thence,
F\ N.65^41'05"NL. G2.O8feet to POINT OF BEGINNING, located 155.00feet Lt. from 8H-68 Project
Centerline Station 423+91.90; thence, along the north and east line of Parcels 9 and 10 as shown on said
Plans,
1\N.65741'05"VV'12O82feet hoanangle point inthe east boundary ofParcel 8amshown onsaid Plans,
located 271.58feet Lt. from 8H-09Project Centerline Station 424+42.O8; thence, along the east and
north boundary line of Parcel 9, the north line of Parcel 41 and Parcel 8 the following courses:
2)N.D1001�6"E,26.Q1feet, located 271.58 feet Lt. from SH-69Project Centerline Station 424+68.99;
2s-First Amended and Restated Deed ofTrust
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N.88-58'21"W., 76.42 feet to the beginning of a tangent curve located 348.00 feet Lt. from SH-69
Dject Centerline Station 424+68.99; thence,
4) Westerly along said curve to the right, having a radius of 431.97 feet, an arc length of 320.42 feet,
through a central angle of 42"30'00" and a long chord which bears N.67043'21"W,, 313,13 feet to the end
of a tangent curve located 639.83 feet Lt. from SH-69 Project Centerline Station 425+82.48; thence,
5) N.46-28-21"W., 37.67 feet, located 667.61 feet Lt. from SH-69 Project Centerline Station 426+07.93;
thence, leaving said Parcel lines, along a new line,
6) N.43031-39"E., 82.34 feet, located 611.98 feet Lt. from SH-69 Project Centerline Station 426+68.64;
thence,
7) N.22'40'17"E., 94.94 feet, located 576.97 feet Lt. from SH-69 Project Centerline Station 427.S6.88;
thence,
8) S.78-27'30"E., 367.00 feet, located 216.13 feet Lt. from SH-69 Project Centerline Station 426+89.91;
thence,
9) S.41044'58"E., 90.01 feet, located 155.00 feel Lt. from SH-69 Project Centerline Station 426+23.84;
thence,
10) S.01 001'39"W., 231.94 feet to the POINT OF BEGINNING.
Street Addresses of Property
1385 South Blue Marlin Lane, Meridian, ID 83642; Tax Parcel Numbers:
R4239770501
R4239770402
R4239770600
U239770405
400 West Overland Road, Meridian, Idaho 83642, together with adjacent vacant land;
Tax Parcel Numbers:
24 — First Amended and Restated Deed of Trust
R-42-39-770-200
R-42-39-770-300
R-42-39-770-751
R-42-39-770-760
R-42-39-772-305
R-42-39-772-402
R-42-39-771-600
P-42-39-771 -010
R-42-39-771-100
P-42-39-771-200
R-42-39-771-300
R-42-39-771-400
P.-42-39-771-700
R-42-39-771 -800
S-12-13-449-750
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