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Client Name:
Allie Suppe
Today's Date:
3/1 /2022
Property Address:
1890 E Fairview Ave
Meridian ID 83642 - 8031
Fidelity National Title / FNTldaho. com
For all your customer service needs, please contact 208-377-3190 or FNTIdahocs@fnf.com
The following information is deemed reliable however is not guaranteed. Fidelity National Title implies no warranties or insurance of any
kind pertaining to the information contained.
Ada County Parcel Information
- Fidelity National Title
CUEIDR IAy
APPROVED
DATE 03/08/22
FILE NUMBER: GZGU-2D22-o002
Land
Parcel #: R0619750050
Address: 1890 E Fairview Ave
Meridian ID 83642
Owner: Av II LLC
Owner Address:
PO Box 140075
Boise ID 83714
Twn/Rng/Sec/Qtr:
03N / 01 E / 05
Parcel Size:
0.74 Acres (32,147 SgFt)
Lot Dimensions:
Front: 0 / Depth: 0
Irrig District:
NAMPA MERIDIAN IRR
Plat/Subdivision:
Avest Plaza Sub
Lot:
5
Block: 1
Census Tract/Block: 010333 / 2064
Waterfront:
Levy Rate: 0.0071
Assessment Year:
2021
Total Land Value:
$495,100.00
Total Impr Value:
$618,600.00
Total Value:
$1,113,700.00
Land Use: Com Lot Or Tract
Neighborhood: 03
Sewer: Public
Watershed: 1705011404
Recreation:
Improvement
Year Built: 1996
Bedrooms: 0
Fin SgFt: 6,000
Garage SgFt: 0
Deck SgFt: 0
Tax Information
Tax Year
Annual Tax
2021
$7,904.66
2020
$8,205.88
2019
$9,866.56
Legal
LOT 5 BLK 1 AVEST PLAZA SUB #96073904
Zoning: City of Meridian-C-G - General Retail And Service Commercial
School District: Meridian School
Water: 3
View:
Building Use: Com Improvement
Bathrooms: 0
Attic Fin/Unfin SgFt: 0 / 0
Carport SgFt: 0
Patio SgFt: 0
Commercial Improvement
Building Type: 95110 / MALL - ROW STORE
Use Code: 420 / Imprv. (com., on cat 210)
Stories: 1
A/C: Ac
Bsmt Fin/Unfin SgFt: 0 / 0
Fireplace: 0
Pool:
SgFt: 6,000 SgFt
Complete %: 0.00%
Sentry Dynamics, Inc. and its customers make no representations, warranties or conditions, express or implied, as to the accuracy or completeness of
information contained in this report.
Ada County Property Profile
Fidelity National Title
Da E IDR IAy
le APPROVED
DATE 03/08/22
)i
fllE NUMBER: czcu-zozz-o12
Lot Size
Building Area
School District
Bedrooms
Bathrooms
Legal
R0619750050
Owner
Av II L L C
Owner Address
PO Box 140075
Boise ID 83714
1890 E Fairview Ave
Market Total Value
Meridian ID 83642 - 8031
0.74 Acres (32,147 SgFt)
Assessed Total Value
$1,113,700.00
6,000 SgFt
Year Built
1996
Meridian School
Zoning
City of Meridian-C-G General Retail
And Service Commercial
Subdivision
Avest Plaza Sub
Land Use / Land Use Std
Com Lot Or Tract / CMSC -
Commercial Miscellaneous
LOT 5 BILK 1 AVEST PLAZA SUB #96073904
■
Sentry Dynamics, Inc. and its customers make no representations, warranties or conditions, express or implied, as to the accuracy or completeness of
information contained in this report.
Ada County Property Profile
10 Fidelity National Title
(EIDI� IN
APPROVED
DATL 03/08/22
')I
FU NWAMR: c-u-zozz-owz
Lot Size
Building Area
School District
Bedrooms
Bathrooms
Legal
R0619750050
Owner
Owner Address
1890 E Fairview Ave
Market Total Value
Meridian ID 83642
0.74 Acres (32,147 SgFt)
Assessed Total Value
6,000 SgFt
Year Built
Meridian School
Zoning
Subdivision
Land Use
LOT 5 BLK 1 AVEST PLAZA SUB
#96073904
E FAIRVIEW AVE
Av1ILLC
PO Box 140075
Boise ID 83714
$1,113,700.00
1996
City of Meridian-C-G General Retail
And Service Commercial
Avest Plaza Sub
Com Lot Or Tract
Sentry Dynamics, Inc. and its customers make no representations, warranties or conditions, express or implied, as to the accuracy or completeness of
information contained in this report.
L�(E IDI� N-
APPROVED
)N: EI 03/08/22
SCE 9UMB:R'czcu-zozz-000z
96073904
AOA GU. REC011DER
J. DAY10 " YA"o
Q,U�TGLl R015E.
' 96 SEP 3 Q 3 0
FOR VALUE RECEIVED, AVEST LIMITED RT $$�1fIl.A; se tHmitcd
partnership does hereby convey, release, remise and f )rfty%j0dtcltiirM1 iA bcAV , L.L.C.,
an Idaho limited liability company, its interest in the property described as:
Lot 2, 3, 4, 5, and 7 in Block 1 of AV.3ST PLAZA
SUBDIVISION, according to the officiO plat thereof, filed in
Book 70 of Plats at Page 7179 AND 7180, Official Records of
Ada County, Idaho.
together with its appurtenances.
DATED this _y day of September, 1996.
AVEST L D PART ERSHIP
By. r
1 11~�
Ro Allen
STATE OF IDAHO )
) ss.
County of Ada )
On this day of September, 1996, before me, the undersigned, a Notary Public in
and for said State, personally appeared ROGER H. A)J-EN, known or identified ter me to be
a Partner in the Partnership of AVEST LIMITED PAtTNERSHIP, the partner wh)
subscribed said Partnership name to the foregoing inst-ument, and acknowledged to me that
he executed the same in said Partnership's name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my off vial deal
the day and year in this certificate first above written.
Notary Pul lic for Idaho
Residing at t,rn.f.
My comnzi;sion cxp"s:
QUITCLAIM DEED • 1
5011.229".1 9V"9.00N
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APPROVED
DAT 03/08/22
:1J%Uk9;a czcu_ing Requested By,
ter Recording, Return To:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
MAC C7300-033
1700 Lincoln Street, 31d Floor
Denver, Colorado 80203
Attn: Loan Documentation
ADA COUNTY RECORDER Christopher D. Rich 2018-075963
BOISE IDAHO Pgs=19 VICTORIA BAILEY 08/10/2018 03:42 PM
PIONEER TITLE COMPANY OF ADA COUNTY $45.00
NA A
DEED OF TRUST
AND ASSIGNMENT OF RENTS AND LEASES
THIS DEED OF TRUST AND ASSIGNMENT (this "Deed of Trust") is executed as of August 1,
2018, by AVII, LLC, AN IDAHO LIMITED LIABILITY COMPANY FORMERLY KNOWN AS AV II, LLC, AN
IDAHO LIMITED LIABILITY COMPANY ("Grantor"), to WELLS FARGO FINANCIAL NATIONAL BANK
("Trustee"), for the benefit of WELLS FARGO BANK, NATIONAL ASSOCIATION ("Beneficiary").
ARTICLE I. GRANT INTRUST
1.1 Grant. For the purposes and upon the terms and conditions in this Deed of Trust, Grantor
irrevocably grants, conveys and assigns to Trustee, in trust for the benefit of Beneficiary, with power of
sale and right of entry and possession, Grantor's interest in: (a) all real property located in Ada County,
Idaho and described on Exhibit A attached hereto and which real property is either (i) within a city or
village, or (ii) is 40 acres or less in size, or (III) is 80 acres or less in size, provided that such real property
is not principally used for the agricultural production of crops, livestock, dairy or aquatic goods; (b) all
easements, rights -of -way and rights used in connection with or as a means of access to any portion of
said real property; (c) all tenements, hereditaments and appurtenances thereof and thereto; (d) all right,
title and interest of Grantor, now owned or hereafter acquired, in and to any land lying within the right-of-
way of any street, open or proposed, adjoining said real property, and any and all sidewalks, alleys and
strips and gores of land adjacent to or used in connection with said real property; (e) all buildings,
improvements and landscaping now or hereafter erected or located on said real property; (f) all
development rights, governmental or quasi -governmental licenses, permits or approvals, zoning rights
and other similar rights or interests which relate to the development, use or operation of, or that benefit or
are appurtenant to, said real property; (g) all mineral rights, oil and gas rights, air rights, water or water
rights, including without limitation, all wells, canals, ditches and reservoirs of any nature and all rights
thereto, appurtenant to or associated with said real property, whether decreed or undecreed, tributary or
non -tributary, surface or underground, appropriated or unappropriated, and all shares of stock in any
water, canal, ditch or reservoir company, and all well permits, water service contracts, drainage rights and
other evidences of any such rights; and (h) all interest or estate which Grantor now has or may hereafter
acquire in said real property and all additions and accretions thereto, and all awards or payments made
for the taking of all or any portion of said real property by eminent domain or any proceeding or purchase
in lieu thereof, or any damage to any portion of said real property (collectively, the "Subject Property").
The listing of specific rights or property shall not be interpreted as a limitation of general terms.
1.2 Address. The address of the Subject Property (if known) is: 1890 East Fairview Avenue,
Meridian, Idaho 83642. Neither the failure to designate an address nor any inaccuracy in the address
designated shall affect the validity or priority of the lien of this Deed of Trust on the Subject Property as
G:\T3\3829\Avest Limited Partnership
0492747513\20130215046 MNguyen (1890 E.
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on Exhibit A. In the event of any conflict between the provisions of Exhibit A and said address,
shall control.
ARTICLE ll. OBLIGATIONS SECURED
2.1 Obligations Secured. Grantor makes this grant and assignment for the purpose of securing
the following obligations (each, a "Secured Obligation" and collectively, the "Secured Obligations"):
(a) payment to Beneficiary of all sums at any time owing and performance of all other
obligations arising under or in connection with that certain promissory note ("Note") dated as of November
30, 2017, in the maximum principal amount of Twenty Million Dollars ($20,000,000.00), with interest as
provided therein, executed by AVEST LIMITED PARTNERSHIP and payable to Beneficiary or its order,
together with the payment and performance of any other indebtedness or obligations incurred in
connection with the credit accommodation evidenced by the Note, whether or not specifically referenced
therein; and
(b) payment to Beneficiary of all sums at any time owing and performance of all other
obligations arising under or in connection with that certain promissory note ("Note") dated as of
September 15, 2014, in the maximum principal amount of One Million Five Hundred Twenty Seven
Thousand Dollars ($1,527,000.00), with interest as provided therein, executed by AVEST LIMITED
PARTNERSHIP and payable to Beneficiary or its order, together with the payment and performance of
any other indebtedness or obligations incurred in connection with the credit accommodation evidenced by
the Note, whether or not specifically referenced therein; and
(c) payment to Beneficiary of all sums at any time owing and performance of all other
obligations arising under or in connection with that certain promissory note ("Note") dated as of December
15, 2013, in the maximum principal amount of Eight Million Nine Hundred Sixty Thousand Dollars
($8,960,000.00), with interest as provided therein, executed by AVEST LIMITED PARTNERSHIP and
payable to Beneficiary or its order, together with the payment and performance of any other indebtedness
or obligations incurred in connection with the credit accommodation evidenced by the Note, whether or
not specifically referenced therein; and
(d) payment and performance of all obligations of Grantor under this Deed of Trust, together
with all advances, payments or other expenditures made by Beneficiary or Trustee as or for the payment
or performance of any such obligations of Grantor; and
(e) payment and performance of all obligations, if any, and the contracts under which they arise,
which any rider attached to and recorded with this Deed of Trust recites are secured hereby; and
(f) payment to Beneficiary of all liability, whether liquidated or unliquidated, defined, contingent,
conditional or of any other nature whatsoever, and performance of all other obligations, arising under any
swap, derivative, foreign exchange or hedge transaction or arrangement (or other similar transaction or
arrangement howsoever described or defined) at any time entered into with Beneficiary in connection with
any Secured Obligation; and
(g) payment and performance of all future advances and other obligations that the then record
owner of the Subject Property may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when any such advance or other obligation is evidenced by a
writing which recites that it is secured by this Deed of Trust; and
(h) all modifications, extensions and renewals of any of the Secured Obligations (including
without limitation, (i) modifications, extensions or renewals at a different rate of interest, or (ii) deferrals or
G:\T3\3829\Avest Limited Partnership _2_
0492747513\20180215046 MNguyen (1890 E.
Fairview) DEED_ID.doc (Rev. 01/17)
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APPROVED
DAT 03/08/22 ations of the required principal payment dates or interest payment dates or both, in whole or in
:1J %UMB,R,czc"-zoz-- owever evidenced, whether or not any such modification, extension or renewal is evidenced by a
Jadditional promissory note or notes.
2.2 Obligations. The term "obligations" is used herein in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities heretofore, now or hereafter made,
incurred or created, whether voluntary or involuntary and however arising, whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined, joint or several, including
without limitation, all principal, interest, charges, including prepayment charges and late charges, and
loan fees at any time accruing or assessed on any Secured Obligation.
2.3 Incorporation. All terms of the Secured Obligations are incorporated herein by this
reference. All persons who may have or acquire an interest in the Subject Property are hereby deemed
to have notice of the terms of the Secured Obligations and to have notice, if provided therein, that: (a) the
Note or any other Secured Obligation may permit borrowing, repayment and reborrowing; and (b) the rate
of interest on one or more of the Secured Obligations may vary from time to time.
ARTICLE III. ASSIGNMENT OF RENTS
3.1 Assignment, For the purposes and upon the terms and conditions set forth herein, Grantor
irrevocably assigns to Beneficiary all of Grantor's right, title and interest in, to and under all leases,
licenses, rental agreements and other agreements of any kind relating to the use or occupancy of any of
the Subject Property, whether existing as of the date hereof or at any time hereafter entered into, together
with all guarantees of and security for any tenant's or lessee's performance thereunder, and all
amendments, extensions, renewals and modifications thereto (each, a "Lease" and collectively, the
"Leases"), together with any and all other rents, issues and profits of the Subject Property (collectively,
"Rents"). This assignment shall not impose upon Beneficiary any duty to produce Rents from the Subject
Property, nor cause Beneficiary to be: (a) a "mortgagee in possession" for any purpose; (b) responsible
for performing any of the obligations of the lessor or landlord under any Lease; or (c) responsible for any
waste committed by any person or entity at any time in possession of the Subject Property or any part
thereof, or for any dangerous or defective condition of the Subject Property, or for any negligence in the
management, upkeep, repair or control of the Subject Property. This is an absolute assignment, not an
assignment for security only, and Beneficiary's right to Rents is not contingent upon and may be
exercised without taking possession of the Subject Property. Grantor agrees to execute and deliver to
Beneficiary, within five (5) days of Beneficiary's written request, such additional documents as Beneficiary
or Trustee may reasonably request to further evidence the assignment to Beneficiary of any and all
Leases and Rents. Beneficiary or Trustee, at Beneficiary's option and without notice, may notify any
lessee or tenant of this assignment of the Leases and Rents.
3.2 Protection of Security. To protect the security of this assignment, Grantor agrees:
(a At Grantor's sole cost and expense: (i) to perform each obligation to be performed by the
lessor or landlord under each Lease and to enforce or secure the performance of each obligation to be
performed by the lessee or tenant under each Lease; (ii) not to modify any Lease in any material respect,
nor accept surrender under or terminate the term of any Lease; (iii) not to anticipate the Rents under any
Lease; and (iv) not to waive or release any lessee or tenant of or from any Lease obligations. Grantor
assigns to Beneficiary all of Grantor's right and power to modify the terms of any Lease, to accept a
surrender under or terminate the term of or anticipate the Rents under any Lease, and to waive or release
any lessee or tenant of or from any Lease obligations, and any attempt on the part of Grantor to exercise
any such rights or powers without Beneficiary's prior written consent shall be a breach of the terms
hereof.
G:\T3\3829\Avest Limited Partnership _3_
0492747513\20180215046 MNguyen (1890 E.
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At Grantor's sole cost and expense, to defend any action in any manner connected with any
he obligations thereunder, and to pay all costs of Beneficiary or Trustee, including reasonable
fees, in any such action in which Beneficiary or Trustee may appear.
(c) That, should Grantor fail to do any act required to be done by Grantor under a Lease, then
Beneficiary or Trustee, but without obligation to do so and without notice to Grantor and without releasing
Grantor from any obligation hereunder, may make or do the same in such manner and to such extent as
Beneficiary or Trustee deems necessary to protect the security hereof, and, in exercising such powers,
Beneficiary or Trustee may employ attorneys and other agents, and Grantor shall pay necessary costs
and reasonable attorneys' fees incurred by Beneficiary or Trustee, or their agents, in the exercise of the
powers granted herein. Grantor shall give prompt notice to Beneficiary of any default by any lessee or
tenant under any Lease, and of any notice of default on the part of Grantor under any Lease received
from a lessee or tenant thereunder, together with an accurate and complete copy thereof.
(d) To pay to Beneficiary immediately upon demand all sums expended under the authority
hereof, including .reasonable attorneys' fees, together with interest thereon at the highest rate per annum
payable under any Secured Obligation, and the same, at Beneficiary's option, may be added to any
Secured Obligation and shall be secured hereby.
3.3 License. Beneficiary confers upon Grantor a license ("License") to collect and retain the
Rents as, but not before, they come due and payable, until the occurrence of any Default. Upon the
occurrence of any Default, the License shall be automatically revoked, and Beneficiary or Trustee may, at
Beneficiary's option and without notice, either in person or by agent, with or without bringing any action, or
by a receiver to be appointed by a court: (a) enter, take possession of, manage and operate the Subject
Property or any part thereof; (b) make, cancel, enforce or modify any Lease; (c) obtain and evict tenants,
fix or modify Rents, and do any acts which Beneficiary or Trustee deems proper to protect the security
hereof; and (d) either with or without taking possession of the Subject Property, in its own name, sue for
or otherwise collect and receive all Rents, including those past due and unpaid, and apply the same in
accordance with the provisions of this Deed of Trust. The entering and taking possession of the Subject
Property, the collection of Rents and the application thereof as aforesaid, shall not cure or waive any
Default, nor waive, modify or affect any notice of default hereunder, nor invalidate any act done pursuant
to any such notice. The License shall not grant to Beneficiary or Trustee the right to possession, except
as provided in this Deed of Trust.
ARTICLE IV. RIGHTS AND DUTIES OF THE PARTIES
4.1 Title. Grantor warrants that, except as disclosed to Beneficiary prior to the date hereof in a
writing which refers to this warranty, Grantor lawfully possesses and holds fee simple title to, or if
permitted by Beneficiary in writing, a leasehold interest in, the Subject Property without limitation on the
right to encumber, as herein provided, and that this Deed of Trust is a valid lien on the Subject Property
and all of Grantor's interest therein.
4.2 Taxes and Assessments. Subject to the right, if any, of Grantor to contest payment of the
following pursuant to any other agreement between Grantor and Beneficiary, Grantor shall pay prior to
delinquency all taxes, assessments, levies and charges imposed: (a) by any public or quasi -public
authority or utility company which are or which may become a lien upon or cause a loss in value of the
Subject Property or any interest therein; or (b) by any public authority upon Beneficiary by reason of its
interest in any Secured Obligation or in the Subject Property, or by reason of any payment made to
Beneficiary pursuant to any Secured Obligation; provided however, that Grantor shall have no obligation
to pay any income taxes of Beneficiary. Promptly upon request by Beneficiary, Grantor shall furnish to
Beneficiary satisfactory evidence of the payment of all of the foregoing. Beneficiary is hereby authorized
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�a:e st and receive from the responsible governmental and non -governmental personnel written
:1J%UMR; Rnts with respect to the accrual and payment of any of the foregoing.
4.3 Performance of Secured Obligations. Grantor shall promptly pay and perform each Secured
Obligation when due.
4.4 Liens. Encumbrances and Charges. Grantor shall immediately discharge any lien on the
Subject Property not approved by Beneficiary in writing. Except as otherwise provided in any Secured
Obligation or other agreement with Beneficiary, Grantor shall pay when due all obligations secured by or
reducible to liens and encumbrances which shall now or hereafter encumber the Subject Property,
whether senior or subordinate hereto, including without limitation, any mechanics' liens.
4.5 Insurance. Grantor shall insure the Subject Property against loss or damage by fire and
such other risks as Beneficiary shall from time to time require. Grantor shall carry commercial general
liability insurance, flood insurance as required by applicable law and such other insurance as Beneficiary
may reasonably require, including without limitation, terrorism, business interruption insurance or loss of
rental value insurance. Grantor shall maintain all required insurance at Grantor's expense, under policies
issued by companies and in form and substance satisfactory to Beneficiary. Neither Beneficiary nor
Trustee, by reason of accepting, rejecting, approving or obtaining insurance, shall incur any liability for:
(a) the existence, nonexistence, form or legal sufficiency thereof; (b) the solvency of any insurer; or (c) the
payment of losses. All policies and certificates of insurance shall name Beneficiary as loss payee, and
shall provide that the insurance cannot be terminated as to Beneficiary except upon a minimum of ten
(10) days' prior written notice to Beneficiary. Immediately upon any request by Beneficiary, Grantor shall
deliver to Beneficiary the original of all such policies or certificates, with receipts evidencing annual
prepayment of the premiums.
4.6 Tax and Insurance Impounds. At Beneficiary's option and upon its demand, Grantor shall,
until all Secured Obligations have been paid in full, pay to Beneficiary monthly, annually or as otherwise
directed by Beneficiary an amount estimated by Beneficiary to be equal to: (a) all taxes, assessments,
levies and charges imposed by any public or quasi -public authority or utility company which are or may
become a lien upon the Subject Property and will become due for the tax year during which such
payment is so directed; and (b) premiums for fire, other hazard and mortgage insurance next due. If
Beneficiary determines that amounts paid by Grantor are insufficient for the payment in full of such taxes,
assessments, levies and/or insurance premiums, Beneficiary shall notify Grantor of the increased amount
required for the payment thereof when due, and Grantor shall pay to Beneficiary such additional amount
within thirty (30) days after notice from Beneficiary. All amounts so paid shall not bear interest, except to
the extent and in the amount required by law. So long as there is no Default, Beneficiary shall apply said
amounts to the payment of, or at Beneficiary's sole option release said funds to Grantor for application to
and payment of, such taxes, assessments, levies, charges and insurance premiums. If a Default exists,
Beneficiary at its sole option may apply all or any part of said amounts to any Secured Obligation and/or
to cure such Default, in which event Grantor shall be required to restore all amounts so applied, as well
as to cure any Default not cured by such application. Grantor hereby grants and transfers to Beneficiary
a security interest in all amounts so paid and held in Beneficiary's possession, and all proceeds thereof,
to secure the payment and performance of each Secured Obligation. Upon assignment of this Deed of
Trust, Beneficiary shall have the right to assign all amounts collected and in its possession to its
assignee, whereupon Beneficiary and Trustee shall be released from all liability with respect thereto. The
existence of said impounds shall not limit Beneficiary's rights under any other provision of this Deed of
Trust or any other agreement, statute or rule of law. Within ninety-five (95) days following full repayment
of all Secured Obligations (other than as a consequence of a foreclosure or conveyance in lieu of
foreclosure of the liens and security interests securing any Secured Obligation), or at such earlier time as
Beneficiary in its discretion may elect, the balance of all amounts collected and in Beneficiary's
possession shall be paid to Grantor, and no other party shall have any right of claim thereto.
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7 Damages: Insurance and Condemnation Proceeds.
(a) (i) All awards of damages and all other compensation payable directly or indirectly by reason
of a condemnation or proposed condemnation (or transfer in lieu thereof) for public or private use
affecting the Subject Property; (ii) all other claims and awards for damages to or decrease in value of the
Subject Property; (iii) all proceeds of any insurance policies payable by reason of loss sustained to the
Subject Property; and (iv) all interest which may accrue on any of the foregoing, are all absolutely and
irrevocably assigned to and shall be paid to Beneficiary. At the absolute discretion of Beneficiary,
whether or not its security is or may be impaired, but subject to applicable law if any, and without regard
to any requirement contained in any other Section hereof, Beneficiary may apply all or any of the
proceeds it receives to its expenses in settling, prosecuting or defending any such claim and apply the
balance to the Secured Obligations in any order, and release all or any part of the proceeds to Grantor
upon any conditions Beneficiary may impose. Beneficiary may commence, appear in, defend or
prosecute any assigned claim or action, and may adjust, compromise, settle and collect all claims and
awards assigned to Beneficiary; provided however, that in no event shall Beneficiary be responsible for
any failure to collect any claim or award, regardless of the cause of the failure.
(b) At its sole option, Beneficiary may permit insurance or condemnation proceeds held by
Beneficiary to be used for repair or restoration but may impose any conditions on such use as Beneficiary
deems necessary.
4.8 Maintenance and Preservation of Subject Property. Subject to the provisions of any
Secured Obligation, Grantor covenants:
(a) to keep the Subject Property in good condition and repair;
(b) except with Beneficiary's prior written consent, not to remove or demolish the Subject
Property, nor alter, restore or add to the Subject Property, nor initiate or acquiesce in any change in any
zoning or other land classification which affects the Subject Property;
(c) to restore promptly and in good workmanlike manner any portion of the Subject Property
which may be damaged or destroyed, unless Beneficiary requires that all of the insurance proceeds be
used to reduce the Secured Obligations as provided in the Section hereof entitled Damages; Insurance
and Condemnation Proceeds;
(d) to comply with and not to suffer violation of any or all of the following which govern acts or
conditions on, or otherwise affect the Subject Property. (i) laws, ordinances, regulations, standards and
judicial and administrative rules and orders; (ii) covenants, conditions, restrictions and equitable
servitudes, whether public or private; and (iii) requirements of insurance companies and any bureau or
agency which establishes standards of insurability;
(e) not to commit or permit waste of the Subject Property; and
(f) to do all other acts which from the character or use of the Subject Property may be
reasonably necessary to maintain and preserve its value.
4.9 Hazardous Substances; Environmental Provisions. Grantor represents and warrants to
Beneficiary as follows:
(a) Except as disclosed to Beneficiary in writing prior to the date hereof, the Subject Property is
not and has not been a site for the use, generation, manufacture, storage, treatment, disposal, release or
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DAT 03/08/22 ned release, transportation or presence of any substances which are "hazardous substances,"
:1J ;U69&R czcu-zoz-- ous wastes," "hazardous materials" or "toxic substances" under the Hazardous Materials Laws, as
below, and/or other applicable environmental laws, ordinances and regulations (collectively, the
"Hazardous Materials").
(b) he Subject Property is in compliance with all laws, ordinances and regulations relating to
Hazardous Materials (collectively, the "Hazardous Materials Laws"), including without limitation, the Clean
Air Act, the Federal Water Pollution Control Act, the Federal Resource Conservation and Recovery Act of
1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Toxic Substances Control Act and
the Occupational Safety and Health Act, as any of the same may be amended, modified or supplemented
from time to time, and any other applicable federal, state or local environmental laws, and any rules or
regulations adopted pursuant to any of the foregoing.
(c) There are no claims or actions pending or threatened against Grantor or the Subject
Property by any governmental entity or agency, or any other person or entity, relating to any Hazardous
Materials or pursuant to any Hazardous Materials Laws.
(d) Grantor hereby agrees to defend, indemnify and hold harmless Beneficiary, its directors,
officers, employees, agents, successors and assigns, from and against any and all losses, damages,
liabilities, claims, actions, judgments, court costs and legal or other expenses (including without limitation,
attorneys' fees and expenses) which Beneficiary may incur as a direct or indirect consequence of the use,
generation, manufacture, storage, treatment, disposal, release or threatened release, transportation or
presence of Hazardous Materials in, on, under or about the Subject Property. Grantor shall pay to
Beneficiary immediately upon demand any amounts owing under this indemnity, together with interest
from the date of demand until paid in full at the highest rate of interest applicable to any Secured
Obligation. GRANTOR'S DUTY AND OBLIGATION TO DEFEND, INDEMNIFY AND HOLD HARMLESS
BENEFICIARY SHALL SURVIVE THE CANCELLATION OF THE SECURED OBLIGATIONS AND THE
RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THIS DEED OF TRUST.
(e) Grantor shall immediately advise Beneficiary in writing upon Grantor's discovery of any
occurrence or condition on the Subject Property or on any real property adjoining or in the vicinity of the
Subject Property that does or could cause all or any part of the Subject Property to be contaminated with
any Hazardous Materials or otherwise be in violation of any Hazardous Materials Laws, or cause the
Subject Property to be subject to any restrictions on the ownership, occupancy, transferability or use
thereof under any Hazardous Materials Laws.
4.10 Protection of Security. Grantor shall, at Grantor's sole expense: (a) protect, preserve and
defend the Subject Property and Grantor's title and right to possession of the Subject Property against all
adverse claims; (b) if Grantor's interest in the Subject Property is a leasehold interest or estate, pay and
perform in a timely manner all obligations to be paid and/or performed by the lessee or tenant under the
lease or other agreement creating such leasehold interest or estate; and (c) protect, preserve and defend
the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee under this Deed of
Trust against all adverse claims. Grantor shall give Beneficiary and Trustee prompt notice in writing of
the assertion of any claim, the filing of any action or proceeding, or the occurrence of any damage,
condemnation offer or other action relating to or affecting the Subject Property and, if Grantor's interest in
the Subject Property is a leasehold interest or estate, of any notice of default or demand for performance
under the lease or other agreement pursuant to which such leasehold interest or estate was created or
exists.
4.11 Acceptance of Trust; Powers and Duties of Trustee. Trustee accepts this trust when this
Deed of Trust is executed. From time to time, upon written request of Beneficiary and, to the extent
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DAT 03/08/22 d by applicable law presentation of this Deed of Trust for endorsement, and without affecting the
:IJ •;UMB,R, czcu-zoz-- al liability of any person for payment of any indebtedness or performance of any of the Secured
ions, Beneficiary, or Trustee at Beneficiary's direction, may, without obligation to do so or liability
therefor and without notice: (a) reconvey all or any part of the Subject Property from the lien of this Deed
of Trust; (b) consent to the making of any map or plat of the Subject Property; and (c) join in any grant of
easement or declaration of covenants and restrictions with respect to the Subject Property, or any
extension agreement or any agreement subordinating the lien or charge of this Deed of Trust. Trustee or
Beneficiary may from time to time apply to any court of competent jurisdiction for aid and direction in the
execution of the trusts and the enforcement of its rights and remedies available under this Deed of Trust,
and may obtain orders or decrees directing, confirming or approving acts in the execution of said trusts
and the enforcement of said rights and remedies. Trustee has no obligation to notify any party of any
pending sale or any action or proceeding (including, but not limited to, actions in which Grantor,
Beneficiary or Trustee shall be a party) unless held or commenced and maintained by Trustee under this
Deed of Trust. Trustee shall not be obligated to perform any act required of it under this Deed of Trust
unless the performance of the act is requested in writing and Trustee is reasonably indemnified against all
losses, costs, liabilities and expenses in connection therewith.
4.12 Compensation: Exculpation: Indemnification.
(a) Grantor shall pay all Trustee's fees and reimburse Trustee for all expenses in the
administration of this trust, including reasonable attorneys' fees. Grantor shall pay Beneficiary reasonable
compensation for services rendered concerning this Deed of Trust, including without limitation, the
providing of any statement of amounts owing under any Secured Obligation. Beneficiary shall not directly
or indirectly be liable to Grantor or any other person as a consequence of: (i) the exercise of any rights,
remedies or powers granted to Beneficiary in this Deed of Trust; (ii) the failure or refusal of Beneficiary to
perform or discharge any obligation or liability of Grantor under this Deed of Trust or any Lease or other
agreement related to the Subject Property; or (iii) any loss sustained by Grantor or any third party as a
result of Beneficiary's failure to lease the Subject Property after any Default or from any other act or
omission of Beneficiary in managing the Subject Property after any Default unless such loss is caused by
the willful misconduct or gross negligence of Beneficiary; and no such liability shall be asserted or
enforced against Beneficiary, and all such liability is hereby expressly waived and released by Grantor.
(b) - Grantor shall indemnify Trustee and Beneficiary against, and hold them harmless from, any
and all losses, damages, liabilities, claims, causes of action, judgments, court costs, attorneys' fees and
other legal expenses, costs of evidence of title, costs of evidence of value, and other expenses which
either may suffer or incur: (i) by reason of this Deed of Trust; (ii) by reason of the execution of this trust or
the performance of any act required or permitted hereunder or by law; (iii) as a result of any failure of
Grantor to perform Grantor's obligations; or (iv) by reason of any alleged obligation or undertaking of
Beneficiary to perform or discharge any of the representations, warranties, conditions, covenants or other
obligations contained in any other document related to the Subject Property, including without limitation,
the payment of any taxes, assessments, rents or other lease obligations, liens, encumbrances or other
obligations of Grantor under this Deed of Trust. Grantor's duty to indemnify Trustee and Beneficiary shall
survive the payment, discharge or cancellation of the Secured Obligations and the release or
reconveyance, in whole or in part, of this Deed of Trust.
(c) Grantor shall pay all indebtedness arising under this Section immediately upon demand by
Trustee or Beneficiary, together with interest thereon from the date of demand until paid in full at the
highest rate per annum payable under any Secured Obligation. Beneficiary may, at its option, add any
such indebtedness to any Secured Obligation.
4.13 Substitution of Trustees. From time to time, by a writing signed and acknowledged by
Beneficiary and recorded in each Office in which this Deed of Trust is recorded, Beneficiary may appoint
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trustee to act in the place and stead of Trustee or any successor. Such writing shall set forth the
:IJNUMB;R c=cuz�zz-� tion date and any recording or other information required by law. The recordation of such
of substitution shall discharge Trustee herein named and shall appoint the new trustee as the
trustee hereunder with the same effect as if originally named Trustee herein. A writing recorded pursuant
to the provisions of this Section shall be conclusive proof of the proper substitution of such new Trustee.
4.14 Due on Sale or Encumbrance. Except as permitted by the provisions of any Secured
Obligation or applicable law, if the Subject Property or any interest therein shall be sold, transferred
(including without limitation, where applicable, through sale or transfer of a majority or controlling interest
of the corporate stock, or any general partnership, limited liability company or other similar interests, of
Grantor), mortgaged, assigned, encumbered or leased, whether voluntarily, involuntarily or by operation
of law (each of which actions and events is called a "Transfer"), without Beneficiary's prior written
consent, THEN Beneficiary may, at its sole option, declare all Secured Obligations immediately due and
payable in full. Grantor shall notify Beneficiary in writing of each Transfer within ten (10) business days of
the date thereof.
4.15 Releases, Extensions, Modifications and Additional Security. Without notice to or the
consent, approval or agreement of any persons or entities having any interest at any time in the Subject
Property or in any manner obligated under any Secured Obligation (each, an "Interested Party"),
Beneficiary may, from time to time, release any Interested Party from liability for the payment of any
Secured Obligation, take any action or make any agreement extending the maturity or otherwise altering
the terms or increasing the amount of any Secured Obligation, accept additional security, and enforce,
waive, subordinate or release all or a portion of the Subject Property or any other security for any
Secured Obligation. None of the foregoing actions shall release or reduce the personal liability of any
Interested Party, nor release or impair the priority of the lien of this Deed of Trust upon the Subject
Property.
4.16 Reconvevance. Upon Beneficiary's written request, and solely to the extent required by
applicable law upon surrender of this Deed of Trust and every note or other instrument setting forth any
Secured Obligations to Trustee for cancellation, Trustee shall reconvey, without warranty, the Subject
Property, or that portion thereof then covered hereby, from the lien of this Deed of Trust. The recitals of
any matters or facts in any reconveyance executed hereunder shall be conclusive proof of the truthful-
ness thereof. To the extent permitted by law, the reconveyance may describe the grantee as "the person
or persons legally entitled thereto." Neither Beneficiary nor Trustee shall have any duty to determine the
rights of persons claiming to be rightful grantees of any reconveyance. When the Subject Property has
been fully reconveyed, the last such reconveyance shall operate as a reassignment of all future Rents to
the person or persons legally entitled thereto. Upon Beneficiary's demand, Grantor shall pay all costs and
expenses incurred by Beneficiary in connection with any reconveyance.
4.17 Subrooation. Beneficiary shall be subrogated to the lien of all encumbrances, whether or not
released of record, paid in whole or in part by Beneficiary pursuant to this Deed of Trust or by the
proceeds of any Secured Obligation.
4.18 Grantor Different From Obligor ("Third Party Grantor"),. As used in this Section, the term
"Obligor" shall mean each person or entity obligated in any manner under any of the Secured Obligations;
and the term "Third Party Grantor" shall mean (1) each person or entity included in the definition of
Grantor herein and which is not an Obligor under all of the Secured Obligations, and (2) each person or
entity included in the definition of Grantor herein if any Obligor is not included in said definition.
(a) Representations and Warranties, Each Third Party Grantor represents and warrants to
Beneficiary that: (i) this Deed of Trust is executed at an Obligor's request; (ii) this Deed of Trust complies
with all agreements between each Third Party Grantor and any Obligor regarding such Third Party
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execution hereof; (iii) Beneficiary has made no representation to any Third Party Grantor as to
worthiness of any Obligor; and (iv) each Third Party Grantor has established adequate means of
from each Obligor on a continuing basis financial and other information pertaining to such
Obligor's financial condition. Each Third Party Grantor agrees to keep adequately informed from such
means of any facts, events or circumstances which might in any way affect such Third Party Grantor's
risks hereunder. Each Third Party Grantor further agrees that Beneficiary shall have no obligation to
disclose to any Third Party Grantor any information or material about any Obligor which is acquired by
Beneficiary in any manner. The liability of each Third Party Grantor hereunder shall be reinstated and
revived, and the rights of Beneficiary shall continue if and to the extent that for any reason any amount at
any time paid on account of any Secured Obligation is rescinded or must otherwise be restored by
Beneficiary, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as
though such amount had not been paid. The determination as to whether any amount so paid must be
rescinded or restored shall be made by Beneficiary in its sole discretion; provided however, that if
Beneficiary chooses to contest any such matter at the request of any Third Party Grantor, each Third
Party Grantor agrees to indemnify and hold Beneficiary harmless from and against all costs and
expenses, including reasonable attorneys' fees, expended or incurred by Beneficiary in connection
therewith, including without limitation, in any litigation with respect thereto.
(b) Waivers.
-(i) Each Third Party Grantor waives any right to require Beneficiary to: (A) proceed against
any Obligor or any other person; (B) marshal assets or proceed against or exhaust any security held from
any Obligor or any other person; (C) give notice of the terms, time and place of any public or private sale
or other disposition of personal property security held from any Obligor or any other person; (D) take any
other action or pursue any other remedy in Beneficiary's power; or (E) make any presentment or demand
for performance, or give any notice of nonperformance, protest, notice of protest or notice of dishonor
hereunder or in connection with any obligations or evidences of indebtedness held by Beneficiary as
security for or which constitute in whole or in part the Secured Obligations, or in connection with the
creation of new or additional obligations.
(ii) Each Third Party Grantor waives any defense to its obligations hereunder based upon or
arising by reason of: (A) any disability or other defense of any Obligor or any other person; (B) the
cessation or limitation from any cause whatsoever, other than payment in full, of any Secured Obligation;
(C) any lack of authority of any officer, director, partner, agent or any other person acting or purporting to
act on behalf of any Obligor which is a corporation, partnership or other type of entity, or any defect in the
formation of any such Obligor; (D) the application by any Obligor of the proceeds of any Secured
Obligation for purposes other than the purposes represented by any Obligor to, or intended or understood
by, Beneficiary or any Third Party Grantor; (E) any act or omission by Beneficiary which directly or
indirectly results in or aids the discharge of any Obligor or any portion of any Secured Obligation by
operation of law or otherwise, or which in any way impairs or suspends any rights or remedies of
Beneficiary against any Obligor; (F) any impairment of the value of any interest in any security for the
Secured Obligations or any portion thereof, including without limitation, the failure to obtain or maintain
perfection or recordation of any interest in any such security, the release of any such security without
substitution, and/or the failure to preserve the value of, or to comply with applicable law in disposing of,
any such security; (G) any modification of any Secured Obligation, in any form whatsoever, including
without limitation the renewal, extension, acceleration or other change in time for payment of, or other
change in the terms of, any Secured Obligation or any portion thereof, including increase or decrease of
the rate of interest thereon; or (H) any requirement that Beneficiary give any notice of acceptance of this
Deed of Trust. Until all Secured Obligations shall have been paid in full, no Third Party Grantor shall
have any right of subrogation, and each Third Party Grantor waives any right to enforce any remedy
which Beneficiary now has or may hereafter have against any Obligor or any other person, and waives
any benefit of, or any right to participate in, any security now or hereafter held by Beneficiary. Each Third
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rotor further waives all rights and defenses it may have arising out of: (1) any election of
by Beneficiary, even though that election of remedies, such as a non -judicial foreclosure with
any security for any portion of the Secured Obligations, destroys such Third Party Grantor's
rights of subrogation or such Third Party Grantor's rights to proceed against any Obligor for
reimbursement; or (2) any loss of rights any Third Party Grantor may suffer by reason of any rights,
powers or remedies of any Obligor in connection with any anti -deficiency laws or any other laws limiting,
qualifying or discharging any Obligor's obligations, whether by operation of law or otherwise, including
any rights any Third Party Grantor may have to a fair market value hearing to determine the size of a
deficiency following any trustee's foreclosure sale or other disposition of any security for any portion of the
Secured Obligations.
(iii) If any of said waivers is determined to be contrary to any applicable law or public policy,
such waiver shall be effective to the extent permitted by applicable law or public policy.
ARTICLE V. DEFAULT PROVISIONS
5.1 Default. The occurrence of any of the following shall constitute a "Default" under this Deed
of Trust: (a) Grantor shall fail to observe or perform any obligation or agreement contained herein; (b) any
representation or warranty of Grantor herein shall prove to be incorrect, false or misleading in any
material respect when rnade; or (c) any default in the payment or performance of any obligation, or any
defined event of default, under any provisions of the Note or any other contract, instrument or document
executed in connection with, or with respect to, any Secured Obligation.
5.2 Rights and Remedies. Upon the occurrence of any Default, and at any time thereafter,
Beneficiary and Trustee shall have all the following rights and remedies:
full. (a) With or without notice, to declare all Secured Obligations immediately due and payable in
(b) With or without notice, without releasing Grantor from any Secured Obligation and without
becoming a mortgagee in possession, to cure any Default of Grantor and, in connection therewith: (i) to
enter upon the Subject Property and to do such acts and things as Beneficiary or Trustee deems
necessary or desirable to protect the security of this Deed of Trust, including without limitation, to appear
in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights
or powers of Beneficiary or Trustee hereunder; (ii) to pay, purchase, contest or compromise any
encumbrance, charge, lien or claim of lien which, in the judgment of either Beneficiary or Trustee, is
senior in priority to this Deed of Trust, the judgment of Beneficiary or Trustee being conclusive as
between the parties hereto; (iii) to obtain, and to pay any premiums or charges with respect to, any
insurance required to be carried hereunder; and (iv) to employ counsel, accountants, contractors and
other appropriate persons to assist them.
(c) To commence and maintain an action or actions in any court of competent jurisdiction to
foreclose this Deed of Trust as a mortgage or to obtain specific enforcement of the covenants of Grantor
under this Deed of Trust, and Grantor agrees that such covenants shall be specifically enforceable by
injunction or any other appropriate equitable remedy. For the purposes of any suit brought under this
subsection, Grantor waives the defenses of laches and any applicable statute of limitations.
(d) To apply to a court of competent jurisdiction for and obtain appointment of a receiver of the
Subject Property as a matter of strict right and without regard to: (i) the adequacy of the security for the
repayment of the Secured Obligations; (ii) the existence of a declaration that the Secured Obligations are
immediately due and payable; or (iii) the filing of a notice of default; and Grantor consents to such
appointment.
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:1J %U69&R,czcu-zozao e) To take and possess all documents, books, records, papers and accounts of Grantor or the
ner of the Subject Property; to make or modify Leases of, and other agreements with respect to,
the Subject Property upon such terms and conditions as Beneficiary deems proper; and to make repairs,
alterations and improvements to the Subject Property deemed necessary, in Trustee's or Beneficiary's
judgment, to protect or enhance the security hereof.
(f) To execute or cause Trustee to execute a written notice of such Default and of its election to
cause the Subject Property to be sold to satisfy the Secured Obligations. Trustee shall give and record
such notice as the law then requires as a condition precedent to a trustee's sale. When the minimum
period of time required by law after such notice has elapsed, Trustee, without notice to or demand upon
Grantor, except as otherwise required by law, shall sell the Subject Property at the time and place of sale
fixed by it in the notice of sale, at one or several sales, either as a whole or in separate parcels and in
such manner and order, all as directed by Beneficiary in its sole discretion, at public auction to the highest
bidder for cash, in lawful money of the United States, payable at the time of sale. Except as required by
law, neither Grantor nor any other person or entity shall have the right to direct the order in which the
Subject Property is sold. Subject to requirements and limits imposed by law, Trustee may postpone any
sale of the Subject Property by public announcement at such time and place of sale, and from time to
time may postpone such sale by public announcement at the time and place fixed by the preceding
postponement. Trustee shall deliver to the purchaser at such sale a deed conveying the Subject Property
or portion thereof so sold, but without any covenant. or warranty, express or implied. The recitals in said
deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including
Trustee, Grantor or Beneficiary, may purchase at such sale,
(g) To resort to and realize upon the security hereunder and any other security now or later held
by Beneficiary concurrently or successively and in one or several consolidated or independent judicial
actions or lawfully taken non -judicial proceedings, or both, and to apply the proceeds received in
accordance with the Section hereof entitled Application of Foreclosure Sale Proceeds, all in such order
and manner as Beneficiary shall determine in its sole discretion.
(h) Upon sale of the Subject Property at any judicial or non judicial foreclosure, Beneficiary may
credit bid (as determined by Beneficiary in its sole discretion) all or any portion of the Secured
Obligations, In determining such credit bid, Beneficiary may, but is not obligated to, take into account all
or any of the following: (i) appraisals of the Subject Property as such appraisals may be discounted or
adjusted by Beneficiary in its sole underwriting discretion; (ii) expenses and costs incurred by Beneficiary
with respect to the Subject Property prior to foreclosure; (iii) expenses and costs which Beneficiary
anticipates will be incurred with respect to the Subject Property after foreclosure, but prior to resale,
including without limitation, costs of structural reports and other due diligence, costs to carry the Subject
Property prior to resale, costs of resale (e.g., commissions, attorneys' fees, and taxes), Hazardous
Materials clean-up and monitoring, deferred maintenance, repair, refurbishment and retrofit, and costs of
defending or settling litigation affecting the Subject Property; (iv) declining trends in real property values
generally and with respect to properties similar to the Subject Property; (v) anticipated discounts upon
resale of the Subject Property as a distressed or foreclosed property; (vi) the existence of additional
collateral, if any, for the Secured Obligations; and (vii) such other factors or matters that Beneficiary
deems appropriate. Grantor acknowledges and agrees that: (A) Beneficiary is not required to use any or
all of the foregoing factors to determine the amount of its credit bid; (B) this Section does not impose
upon Beneficiary any additional obligations that are not imposed by law at the time the credit bid is made;
(C) the amount of Beneficiary's credit bid need not have any relation to any loan -to -value ratios specified
in any agreement between Grantor and Beneficiary or previously discussed by Grantor and Beneficiary;
and (D) Beneficiary's credit bid may be, at Beneficiary's sole discretion, higher or lower than any
appraised value of the Subject Property.
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plication of Foreclosure Sale Proceeds. After deducting all costs, fees and expenses of
:1J%UMB,R, czcu-zozao , and of this trust, including costs of evidence of title and attorneys' fees in connection with a sale,
eeds of any foreclosure sale shall be applied first, to payment of all Secured Obligations (including
without limitation, all sums expended by Beneficiary under the terms hereof and not then repaid, with
accrued interest at the highest rate per annum payable under any Secured Obligation), in such order and
amounts as Beneficiary in its sole discretion shall determine; and the remainder, if any, to the person or
persons legally entitled thereto.
5.4 Application of Other Sums. All Rents or other sums received by Beneficiary or any agent or
receiver hereunder, less all costs and expenses incurred by Beneficiary or such agent or receiver,
including reasonable attorneys' fees, shall be applied to payment of the Secured Obligations in such order
as Beneficiary shall determine in its sole discretion; provided however, that Beneficiary shall have no
liability for funds not actually received by Beneficiary.
5.5 No Cure or Waiver. Neither Beneficiary's, Trustee's or any receiver's entry upon and taking
possession of the Subject Property, nor any collection of Rents, insurance proceeds, condemnation
proceeds or damages, other security or proceeds of other security, or other sums, nor the application of
any collected sum to any Secured Obligation, nor the exercise of any other right or remedy by
Beneficiary, Trustee or any receiver shall impair the status of the security of this Deed of Trust, or cure or
waive any breach, Default or notice of default under this Deed of Trust, or nullify the effect of any notice of
default or sale (unless all Secured Obligations and any other sums then due hereunder have been paid in
full and Grantor has cured all other Defaults), or prejudice Beneficiary or Trustee in the exercise of any
right or remedy, or be construed as an affirmation by Beneficiary of any tenancy, lease or option of the
Subject Property or a subordination of the lien of this Deed of Trust.
5.6 Costs. Expenses and Attorneys' Fees. Grantor agrees to pay to Beneficiary immediately
upon demand the full amount of all payments, advances, charges, costs and expenses, including court
costs and reasonable attorneys' fees (to include outside counsel fees and all allocated costs of
Beneficiary's in-house counsel), expended or incurred by Trustee or Beneficiary pursuant to this Article V,
whether incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including any
of the foregoing incurred in connection with any bankruptcy proceeding (including without limitation, any
adversary proceeding, contested matter or motion brought by Beneficiary or any other person) relating to
Grantor or in any way affecting any of the Subject Property or Beneficiary's ability to exercise any of its
rights or remedies with respect thereto. All of the foregoing shall be paid by Grantor with interest from the
date of demand until paid in full at the highest rate per annum payable under any Secured Obligation.
5.7 Power to File Notices and Cure Defaults. Grantor hereby irrevocably appoints Beneficiary
and its successors and assigns as Grantor's true attorney -in -fact to perform any of the following powers,
which agency is coupled with an interest: (a) to execute and/or record any notices of completion,
cessation of labor, or any other notices that Beneficiary deems appropriate to protect Beneficiary's
interest; and (b) upon the occurrence of any event, act or omission which with the giving of notice or the
passage of time, or both, would constitute a Default, to perform any obligation of Grantor hereunder;
provided however, that Beneficiary, as such attorney -in -fact, shall only be accountable for such funds as
are actually received by Beneficiary, and Beneficiary shall not be liable to Grantor or any other person or
entity for any failure to act under this Section.
5.8 Remedies Cumulative: No Waiver. All rights, powers and remedies of Beneficiary and
Trustee hereunder are cumulative and are in addition to all rights, powers and remedies provided by law
or in any other agreements between Grantor and Beneficiary. No delay, failure or discontinuance of
Beneficiary in exercising any right, power or remedy hereunder shall affect or operate as a waiver of such
right, power or remedy; nor shall any single or partial exercise of any such right, power or remedy
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waive or otherwise affect any other or further exercise thereof or the exercise of any other right,
remedy.
ARTICLE VI. MISCELLANEOUS PROVISIONS
6.1 No Merger. No merger shall occur as a result of Beneficiary's acquiring any other estate in,
or any other lien on, the Subject Property unless Beneficiary specifically consents to a merger in writing.
6.2 Execution of Documents. Grantor agrees, upon demand by Beneficiary or Trustee, to
execute any and all documents and instruments required to effectuate the provisions hereof.
6.3 Right of Inspection. Beneficiary or its agents or employees may enter onto the Subject
Property at any reasonable time for the purpose of inspecting the Subject Property and ascertaining
Grantor's compliance with the terms hereof,
6.4 Notices. All notices, requests and demands which Grantor or Beneficiary is required or may
desire to give to the other party must be in writing, delivered to Beneficiary at the following address:
WELLS FARGO BANK, NATIONAL ASSOCIATION
MAC U 1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
Attention: Manager
and to Grantor at its address set forth at the signature lines below, or at such other address as either
party shall designate by written notice to the other party in accordance with the provisions hereof.
6.5 Successors: Assignment. This Deed of Trust shall be binding upon and inure to the benefit
of the heirs, executors, administrators, legal representatives, successors and assigns of the parties
hereto; provided however, that this Section does not waive the provisions of the Section hereof entitled
Due on Sale or Encumbrance. Beneficiary reserves the right to sell, assign, transfer, negotiate or grant
participations in all or any part of, or any interest in, Beneficiary's rights and benefits under the Note, any
and all other Secured Obligations and this Deed of Trust. In connection therewith, Beneficiary may
disclose all documents and information which Beneficiary now has or hereafter acquires relating to the
Subject Property, all or any of the Secured Obligations and/or Grantor and, as applicable, any partners,
joint venturers or members of Grantor, whether furnished by any Grantor or otherwise.
6.6 Rules of Construction. (a) When appropriate based on the identity of the parties or other
circumstances, the masculine gender includes the feminine or neuter or both, and the singular number
includes the plural; (b) the term "Subject Property" means all and any part of or interest in the Subject
Property; (c) all Section headings herein are for convenience of reference only, are not a part of this Deed
of Trust, and shall be disregarded in the interpretation of any portion of this Deed of Trust; (d) if more than
one person or entity has executed this Deed of Trust as "Grantor," the obligations of all such Grantors
hereunder shall be joint and several; and (e) all terms of Exhibit A, and each other exhibit and/or rider
attached hereto and recorded herewith, are hereby incorporated into this Deed of Trust by this reference.
6.7 Severability of Provisions. If any provision of this Deed of Trust shall be held to be
prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision or any remaining provisions of
this Deed of Trust.
G:1T343829\Avest Limited Partnership -14-
0492747513120180215046 MNguyen (1890 E.
Fairview) DEED_ID.dac (Rev. 01/17)
E IDI� 11
APPROVED
DA E: 03/08/22
I,E %UMBERCZCU-20230002
I Recourse to Separate Property. Any married person who executes this Deed of Trust as a
ind who is obligated under any Secured Obligation agrees that any money judgment which
ry or Trustee obtains pursuant to the terms of this Deed of Trust or any other obligation of that
ierson secured by this Deed of Trust may be collected by execution upon that person's separate
property, and any community property of which that person is a manager.
6.9 Governing Law. This Deed of Trust shall be governed by and construed in accordance with
the laws of the State of Idaho.
6.10 Arbitration,
(a) Arbitration. The parties hereto agree, upon demand by any party, to submit to binding
arbitration all claims, disputes and controversies between or among them (and their respective
employees, officers, directors, attorneys, and other agents), whether in tort; contract or otherwise in any
way arising out of or relating to this Deed of Trust and its negotiation, execution, collateralization,
administration, repayment, modification, extension, substitution, formation, inducement, enforcement,
default or termination. In the event of a court ordered arbitration, the party requesting arbitration shall be
responsible for timely filing the demand for arbitration and paying the appropriate filing fee within 30 days
of the abatement order or the time specified by the court. Failure to timely file the demand for arbitration
as ordered by the court will result in that party's right to demand arbitration being automatically
terminated.
(b) Governing Rules. Any arbitration proceeding will (i) proceed in a location in Idaho selected
by the American Arbitration Association ("AAA"); (ii) be governed by the Federal Arbitration Act (Title 9 of
the United States Code), notwithstanding any conflicting choice of law provision in any of the documents
between the parties; and (iii) be conducted by the AAA, or such other administrator as the parties shall
mutually agree upon, in accordance with the AAA's commercial dispute resolution procedures, unless the
claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and costs in
which case the arbitration shall be conducted in accordance with the AAA's optional procedures for large,
complex commercial disputes (the commercial dispute resolution procedures or the optional procedures
for large, complex commercial disputes to be referred to herein, as applicable, as the "Rules"). If there is
any inconsistency between the terms hereof and the Rules, the terms and procedures set forth herein
shall control. Any party who fails or refuses to submit to arbitration following a demand by any other party
shall bear all costs and expenses incurred by such other party in compelling arbitration of any dispute.
Nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protections
afforded to it under 12 U.S.C. §91 or any similar applicable state law.
(c) No Waiver of Provisional Remedies. Self -Help and Foreclosure. The arbitration requirement
does not limit the right of any party to (i) foreclose against real or personal property collateral; (ii) exercise
self-help remedies relating to collateral or proceeds of collateral such as setoff or repossession; or (iii)
obtain provisional or ancillary remedies such as replevin, injunctive relief, attachment or the appointment
of a receiver, before during or after the pendency of any arbitration proceeding, This exclusion does not
constitute a waiver of the right or obligation of any party to submit any dispute to arbitration or reference
hereunder, including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii) of
this paragraph.
(d) Arbitrator Qualifications and Powers. Any arbitration proceeding in which the amount in
controversy is $5,000,000.00 or less will be decided by a single arbitrator selected according to the Rules,
and who shall not render an award of greater than $5,000,000,00. Any dispute in which the amount in
controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators;
provided however, that all three arbitrators must actively participate in all hearings and deliberations. The
arbitrator will be a neutral attorney licensed in the State of Idaho or a neutral retired judge of the state or
federal judiciary of Idaho, in either case with a minimum of ten years experience in the substantive law
applicable to the subject matter of the dispute to be arbitrated. The arbitrator will determine whether or
not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any
G;\T3\3829\Avest Limited Partnership -15-
0492747513\20180215046 MNguyen (1890 E.
Fairview) DEED_ID.doc (Rev. 01/17)
E IDI� 11
APPROVED
DAT 03/08/22 ion proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator's
on) any pre -hearing motions which are similar to motions to dismiss for failure to state a claim or
'u` a;e; _ for summary adjudication. The arbitrator shall resolve all disputes in accordance with the
tive law of Idaho and may grant any remedy or relief that a court of such state could order or grant
within the scope hereof and such ancillary relief as is necessary to make effective any -award. The
arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to
take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to
the Federal Rules of Civil Procedure, the Idaho Rules of Civil Procedure or other applicable law.
Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy
shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if any other party contests such action for judicial relief.
(e) Discovery. In any arbitration proceeding, discovery will be permitted in accordance with the
Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated
and must be completed.no later than 20 days before the hearing date. Any requests for an extension of
the discovery periods, or any discovery disputes, will be subject to final determination by the arbitrator
upon a showing that the request for discovery is essential for the party's presentation and that no
alternative means for obtaining information is available.
(f) Class Proceedings and Consolidations. No party hereto shall be entitled to join or
consolidate disputes by or against others in any arbitration, except parties who have executed this Deed
of Trust or any other contract, instrument or document relating to any Secured Obligation, or to include in
any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the
interest of the general public or in a private attorney general capacity.
(g) Payment Of Arbitration Costs And Fees. The arbitrator shall award all costs and expenses
of the arbitration proceeding.
(h) Real Property. Notwithstanding anything herein to the contrary, no dispute shall be
submitted to arbitration unless: (i) Beneficiary specifically elects in writing to proceed with the arbitration;
or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the
single action rule statute of Idaho, thereby agreeing that all Secured Obligations, and all mortgages, liens
and security interests securing any of the Secured Obligations, shall remain fully valid and enforceable.
(i) Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and the parties
shall take all action required to conclude any arbitration proceeding within 180 days of the filing of the
dispute with the AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by a party required in the
ordinary course of its business or by applicable law or regulation. If more than one agreement for
arbitration by or between the parties potentially applies to a dispute, the arbitration provision most directly
related to the documents between the parties or the subject matter of the dispute shall control. This
arbitration provision shall survive termination, amendment or expiration of any of the documents or any
relationship between the parties.
Q) Small Claims Court. Notwithstanding anything herein to the contrary, each party retains the
right to pursue in Small Claims Court any dispute within that court's jurisdiction. Further, this arbitration
provision shall apply only to disputes in which either party seeks to recover an amount of money
(excluding attorneys' fees and costs) that exceeds the jurisdictional limit of the Small Claims Court.
G:1T3\3829\Avest Limited Partnership -16-
0492747513\20180215046 MNguyen (1890 E.
Fairview) DEED_ID.doc (Rev. 01/17)
E IDI� 11
APPROVED
DAT 03/08/22 N
SCE `IU6I BE R'czcu-zozz-000z
Grantor(;
WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first set forth
AVII, LLC, AN IDAHO LIMITED LIABILITY COMPANY
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN It�I.V_E TMENT CORPORATION,
GENERAL P TNER
By: r r I
RO ALLEN,
PR SIDENT
G:1T3\3829Wvest Limited Partnership _17_
0492747513\20180215046 MNguyen (1890 E.
Fairview) DEED ID.doc (Rev. 01/17)
Address(es)
�3� S � . �t.ee� � od �r�.►c
�1 oese ll`� $3IL(
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
EXHIBIT A
(Description of Property)
Exhibit A to Deed of Trust and Assignment of Rents and Leases executed by AVII, LLC, AN IDAHO
LIMITED LIABILITY COMPANY FORMERLY KNOWN AS AV II, LLC, AN IDAHO LIMITED LIABILITY
COMPANY, as Grantor, to WELLS FARGO FINANCIAL NATIONAL BANK, as Trustee, for the benefit of
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Beneficiary, dated as of August 1, 2018.
Description of Property
Lot 5 in Block I of A vest Plaza Subdivision, according to the plat thereof, filed in Book 70 of Plats at
Pages 7179 and 7180, records of Ada County, Idaho.
G:\T3\3829\Avest Limited Partnership
0492747513\20180215046 MNguyen (1890 E.
Fairview) DEED_ID.doc
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
F IDAHO )
OF ss.
This record was acknowledged before me on R r -1 I 19 by
E2mk r A t.,a era as —V ".t s %0,k � i of
SOMA JOHNSON
< N TARY I'l1BLIO
Signature o notary p li
(Stamp) STATE OF IDAHO
My Commission Expires:
GAT3\3829\Avest Limited Partnership -18-
0492747513\20180215046 M quyen (1890 E.
Fairview) DEED_ID.doc (Rev. 01/17)
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
equested By,
cording, Return.To:
GO BANK,
ASSOCIATION
MAC C7300-033
1700 Lincoln Street, 3rd Floor
Denver, Colorado 80203
Attn: Loan Documentation
C�A-71 M lei
ADA COUNTY RECORDER Christopher D. Rich 2019-000745
BOISE IDAHO Pgs=10 VICTORIA BAILEY 01J04/2019 09:57 AM
PIONEER TITLE COMPANY OF ADA COUNTY $37.00
ELECTRONICALLY RECORDED • DO NOT
REMOVE THE COUNTY STAMPED FIRST
PAGE AS IT IS NOW INCORPORATED AS
PART OF THE ORIGINAL DOCUMENT.
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
(DEED OF TRUST)
THIS AGREEMENT is entered into as of August 1, 2018, by and between CINDY TANKERSLEY
DBA LIBERTY TAX ("Tenant'), AVII, LLC., AN IDAHO LIMITED LIABILITY COMPANY ("Landlord") and
WELLS FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
A. Bank, or its predecessor in interest, has extended credit or may hereafter extend credit to
AVEST LIMITED PARTNERSHIP ("Borrower") secured, in whole or in part, by a deed of trust (the "Deed
of Trust") covering that certain real property situated in the County Ada, with an address of
(if known), as more particularly described on Exhibit A.attached
hereto and incorporated herein by this reference (the "Property").
B. Tenant leases all or a portion of the Property pursuant to a lease entered into between
Landlord and Tenant, or between Landlord's and/or Tenant's assignors or predecessor(s) in interest, as
the case may be, dated as of April 21, 2016 (as such may have been amended, modified, restated, or
otherwise assigned, transferred or sub -let, the "Lease"), It is a condition of Bank's agreement to extend
or continue credit to Borrower secured by the Property that the security of the Deed of Trust be and at all
times remain a lien or charge on the Property prior and superior to the rights of Tenant under the Lease.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SUBORDINATION.
(a) Subordination of Lease. The Deed of Trust and any and all extensions, renewals,
modifications or replacements thereof shall be and at all times remain a lien or charge on the Property
prior and superior to the Lease. Tenant intentionally and unconditionally waives, relinquishes and
subordinates the priority and superiority of the Lease and Tenant's right and interest to the Property .
thereunder, including without limitation, all rights under any option(s) to purchase or right(s) of first refusal
with respect to the Property, to the lien or charge of the Deed of Trust, and any and all extensions,
renewals, modifications or replacements thereof.
(b) Reliance. Tenant acknowledges that Bank, in extending credit or continuing to extend credit
to Borrower secured by the Property is doing so in material reliance on this Agreement.
G:\T3\3829\AvestLimited Partnership 1-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D_ALL.doc
(Rev.10/17)
E IDI� 11
APPROVED
: CE %UM B: Rczcu-- - —
gckncwledgments of Tenant. Tenant acknowledges that it has and will continue to obtain
:ion with respect to any credit extended by Bank to Borrower, and all loan documents
onnection therewith, as Tenant deems necessary in order to grant or provide this
. Tenant further agrees that Bank is under no obligation or duty to, nor has Bank
represented that it has or will, see to the application of the proceeds of any such credit by any person or
entity, and any application or use of any such proceeds for purposes other than those for which they were
intended shall not defeat this subordination.
(d) Entire Subordination Agreement. This Agreement constitutes the whole and only agreement
between the parties hereto with regard to the subordination of the Lease, and any applicable option(s) to
purchase or right(s) of first refusal, to the lien or charge of the Deed of Trust; there are no agreements
(written or oral) outside or separate from this Agreement with respect to the subject matter hereof; and all
prior negotiations with respect thereto, if any, are merged into this Agreement. This Agreement shall
supersede and cancel, but only insofar as would affect the priority between the Deed of Trust and the
Lease, any prior agreements as to such subordination, including without limitation those provisions, if any,
contained in the Lease that provide for the subordination thereof to the lien of a deed of trust or mortgage
affecting all or any portion of the Property.
. 2. LEASE. Tenant hereby covenants and agrees that, so long as the Deed of Trust remains in
force and effect:
(a) No Modification, Termination or Cancellation. Without Bank's prior written consent, which
consent shall not be unreasonably withheld or delayed, Tenant shall not: (1) consent to any modification
of the Lease that would (i) reduce the term of the Lease, (ii) reduce the rent payable or change the due
dates thereunder, (iii) change any notice or cure period set forth therein or (iv) materially increase the
obligations or responsibilities of Landlord thereunder; nor (2) consent to any voluntary termination or
cancellation of the Lease; provided however, that the foregoing shall not prevent Tenant from terminating
the Lease as a result of a default by Landlord thereunder that is not cured within such time periods after
notice, as may be applicable thereto under the terms of the Lease and this Agreement.
(b) Notice of Default. Tenant shall notify Bank in writing concurrently with any notice given to
Landlord of any breach of or defauit.by Landlord under the Lease. Tenant agrees that Bank shall have
the right (but not the obligation) to cure any breach or default specified in such notice within the time
periods set forth below, and Tenant shall not declare a default of the Lease, as to Bank, if Bank cures
such breach or default within thirty (30) days after the expiration of the time period provided in the Lease
for the cure thereof by Landlord; provided however, that if such breach or default cannot with diligence be
cured by Bank within such thirty (30) day period, the commencement of action by Bank within such thirty
(30) day period to remedy the same shall be deemed sufficient so long as Bank pursues such cure with
diligence.
(c) No Advance Rents. Tenant shall not make any payments or prepayments of rent more than
one (1) month in advance of the time when the same become due under the Lease,
(d) Assignment of Rents. Upon receipt by Tenant of written notice from Bank that Bank has
elected to terminate the license granted to Landlord to collect rents, as provided in the Deed of Trust, and
directing Tenant to make payment thereof to Bank, Tenant shall comply with such direction to pay and
shall not be required to determine whether Landlord or Borrower is in default under any obligations to
Bank. Bank and Landlord acknowledge and agree that Tenant shall be entitled to rely solely upon the
written demand given by Bank referred to herein. Landlord, by appending its signature below,
acknowledges and agrees that Tenant shall be entitled to full credit under the Lease for any rents paid to
Bank in accordance with the provisions hereof to the same extent as if such rents were paid directly to
Landlord.
GAT3138291Avest Limited Partnership -2.
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D_ALL.doo
(Rev.10/17)
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Insurance and Condemnation Proceeds. in the event there is any conflict between the terms
of Trust and the Lease regarding the use of insurance proceeds or condemnation proceeds
to the Property, the provisions of the Deed of Trust shall control.
3. ATTORNMENT. If Bank or any other transferee acquires Landlord's right, title and interest
in and to the Property pursuant to a foreclosure of the Deed of Trust or a transfer of the Property in lieu
thereof or in any other manner whereby Bank or such transferee succeeds to the interest of Landlord
under the Lease, Tenant agrees as follows for the benefit of Bank or such transferee:
(a) Payment of Rent. Tenant shall pay to Bank or such transferee all rental payments required
to be made by Tenant pursuant to the terms of the Lease for the remaining term thereof.
(b) Continuation of Performance. Tenant shall be bound to Bank or such transferee in
accordance with all of the terms of the Lease for the remaining term thereof, and Tenant hereby attorns to
Bank or such transferee as its landlord, such attornment to be effective and self -operative without the
execution of any further instrument immediately upon Bank or such transferee succeeding to Landlord's
interest in the Lease and giving written notice thereof to Tenant.
(c) No Offset or Lender Liability: Acts and Omissions of Landlord. Neither Bank nor such
transferee shall be liable for, or subject to, any offsets or defenses that Tenant may have by reason of
any act or omission of Landlord as the prior landlord under the Lease, nor for the return of any sums
which Tenant may have paid to Landlord as the prior landlord under the Lease as security deposits,
advance rentals or otherwise, except to the extent that such sums are actually delivered by Landlord to
Bank or such transferee, except that Tenant shall be entitled to exercise all remedies provided Tenant
under the Lease with respect to continuing defaults thereunder resulting from the acts or omissions of
Landlord, and arising after Bank has received notice of such defaults and has not cured the same after
notice and the opportunity to do so, as set forth in the Lease and this Agreement. The foregoing shall not
relieve Bank or,such transferee from performing the obligations of a landlord under the Lease arising after
Bank or such transferee acquires Landlord's right, title and interest in and to the Property. In no event
shall Bank nor any such transferee be liable for, or subject to, any offsets or defenses with respect to the
return of any sums that Tenant may have paid to Landlord as the prior landlord under the Lease as
security deposits, advance rentals or otherwise, except to the extent that such sums are actually
delivered by Landlord to Bank or such transferee.
(d) Subsequent Transfer. if Bank or such transferee, by succeeding to Landlord's interest under
the Lease, becomes obligated to perform the covenants of a lessor thereunder, then, upon any further
transfer by Bank or such transferee of its interest as a lessor under the Lease, all of such obligations shall
terminate as to Bank or such transferee.
4. NON -DISTURBANCE. In the event of a foreclosure of the Deed of Trust, or a transfer of the
Property in lieu thereof or in any other manner whereby Bank or such transferee succeeds to the interest
of Landlord under the Lease, so long as there shall then exist no breach, default or event of default by
Tenant under the Lease: (a) the leasehold interest of Tenant shall not be extinguished or terminated by
reason of such foreclosure; (b) the Lease shall continue in full force and effect; (c) Bank and its
successors -in -interest shall recognize and accept Tenant as the tenant under the Lease, subject to the
terms and conditions of the Lease as modified by this Agreement; and (d) Bank will not join Tenant as a
party defendant in any action or foreclosure proceeding unless such joinder is required by law to
foreclose, then only for such purpose and not for the purpose of terminating the Lease. Notwithstanding
the foregoing, Tenant and Bank agree that any option to purchase or any right of first refusal with respect
to the Property as may be provided in the Lease (if any) shall not be binding on the Bank.
GAT31382944vest Limited Partnership -3-
0492747613120180218046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D ALL.doc
(Rev.1 D117)
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
:STOPPEL. Tenant acknowledges and represents and certifies to Bank as follows:
.ease Effective. The Lease has been duly executed and delivered by Tenant and, subject to
conditions thereof, the Lease is in full force and effect, the obligations of Tenant thereunder
binding, and there have been no amendments, modifications or additions to the Lease
(written or oral), other than those expressly included in the Lease definition set forth above. The Lease
constitutes the entire agreement between Landlord and Tenant with respect to the Property, and Tenant
claims no rights to the Property other than as set forth in the Lease.
(b) No Default. As of the date hereof and to the best of Tenant's knowledge, (i) there exists no
breach of or default under the Lease, nor any condition, act or event that with the giving of notice or the
passage of time, or both, would constitute such a breach or default, and (ii) there are no existing claims,
defenses or offsets against rental due or to become due under the terms of the Lease.
(c) No Prepaid Rent. No deposits r pr pays. e s of rent have been made by Tenant in
connection with the Lease, except as follow - GG�. insert "None" or the dollar amount of the
prepaid rent, if any.
6. MISCELLANEOUS,
(a) Remedies Cumulative. All remedies provided herein are cumulative, not exclusive, and shall
be in addition to any and all other rights and remedies provided by law and by other agreements between
Bank and Borrower, Landlord or any other person or entity.
(b) Costs. Expenses and Attorneys' Fees. If any party hereto institutes any judicial or
administrative action or proceeding to enforce any rights or obligations under this Agreement, or seeking
damages or any other judicial or administrative remedy, the prevailing party shall be entitled to recover
from the other party all costs and expenses, including, subject to applicable law, reasonable attorneys'
fees (to include outside counsel fees and all allocated costs of the prevailing party's in-house counsel),
whether or not suit is brought, and if brought whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Borrower, Tenant or any other person or entity.
(c) Notices. All notices, requests and demands that any party is required or may desire to give
to any other party under any provision of this Agreement must be in writing delivered to each party at the
address set forth herein, or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or made as follows: (1) if
sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or three (3)
days after deposit in the U.S. mail, first class and postage prepaid; and (iii) if sent by telecopy, upon
receipt.
(d) Further Assurances. At the request of any party hereto, each other party shall execute,
acknowledge and deliver such other documents and/or instruments as may be reasonably required by the
requesting party in order to carry out the purpose of this Agreement, provided that no such document or
instrument shall modify the rights and obligations of the parties set forth herein.
(e) Borrower: Landlord. If Borrower and Landlord are the same, each reference in this
Agreement to Borrower or Landlord shall be deemed a reference to said person or entity in its respective
capacity.
GAT3\3829\Avest Limited Partnership -4-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D ALL,doc
(Rev.10/17)
APPROVED
:CE %U69B:R czcu-- - —
;uccessors, Assigns: Governing L_. This Agreement shall be binding upon and inure to
:he heirs, executors, legal representatives, successors, assigns and other transferees of the
and shall be governed by and construed in accordance with the laws of Idaho, without
ie conflicts of law or choice of law principles thereof but giving effect to federal laws
applicable to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
/QJ TENANT:
BANK:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
J' By:
CINDY NKERSLEY LINDA K. ARMSTRONG
VICE PRESIDENT
Address: Address: MAC U1858-032
p 877 West Main Street, Suite 300
Boise, Idaho 83702
LANDLORD:
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
GENERALPARTNER
By:
ROGER H. ALLEN,
PRESIDENT
Address:
G:1T3138291Avest Limited Partnership -5-
0492747513120180215048 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D_ALL.doc
(Rev.10/17)
APPROVED Successors, Assigns;_ Governing Law. This Agreement shall be binding upon and inure to
o3/08/22 it of the heirs, executors, legal representatives, successors, assigns and other transferees of the
'H:E reto, and shall be governed by and construed in accordance with the laws of Idaho, without
:1J%UMB;R OZOU--- to the conflicts of law or choice of law principles thereof but giving effect to federal laws
to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT:
CINDY TANKERSLEY
Address:
LANDLORD:
AVII, LLC
BANK:
_ WELLS FARGO BANK,
NATII'N L ASSOCIATI
By---
__N_ K. ARM TRO.NG,
VICE PRESIDENT' �-
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
GENE PARTN
By: r^" q
RPYE . ALLEN,
PRESIDENT
Address:
Address: MAC U1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
GAT3\3829\Nvest Limited Partnership -5-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531D ALL.doc
(Rev.10/17)
APPROVED
)A:P 03/08/22 )
SCE `IU6IBER'czcu-zozz-000z
[was acknowledged before me on
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STATE OF IDAHO
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My Commission Expires: 1
This record was acknowledged before me on by
,as of Wells Fargo Bank,
National Association.
Signature of notary public
(Stamp)
My Commission Expires:
G;1T3138291Avest Limited Partnership
049274751.3120180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D ALL.doc
(Rev.10/17)
APPROVED OF ) ss.
DA EI 03/08/22
:1J%V'9;R czcu-'rd was acknowledged before me on 1/ „4�,2 t 3 by
Signature of notary public
(St=NOTARYPUBLIC
ICE
BER 67907 My Commission Expires:
BLICahores 06/13/2022
STATE OF IDAHO )
} ss.
COUNTY OF }
This r cord was acknowledged before me on /� 24r `" by
<< ''& �. r 7-0 —,as ")_ VY of Wells Fargo Bank,
National Association.
(Stamp)
SOYLA RICE
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
G:\T3\3829\Avest Limited Partnership
0492747513\20180215048 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D ALL.doc
(Rev.10/17)
Sig ure notary public
My Commission Expires:
-6-.
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
(Stamp)
IDAHO )
) ss.
)F )
was acknowledged before me on
as
by
of
Signature of notary public
My Commission Expires:
G:\T3\3829\Avest Limited Partnership -7-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D_ALL.doc
(Rev.10/17)
APPROVED
DA EI 03/08/22
SCE `IUMB:R'czcu-zozz-000z i
. EXHIBIT A
TO
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
Legal Description of Property:
Lot 5 in Block I of A vest Plaza Subdivision, according to the plat thereof, filed in Book 70 of Plats at
Pages 7179 and 7180, records of Ada County, Idaho.
GAT3138291Avest Limited Partnership -8-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Cindy Tankersley) C-531 D_ALL.doo
(Rev.10l17)
E IDI� 11
APPROVED
DA EI 03/08/22
SCE %UMB:R' czcu-zoz, —,
a Requested By,
Recording, Return To:
'ARGO BANK,
IAL ASSOCIATION
MAC. C7300-033
1700 Lincoln Street, 3rd Floor
Denver, Colorado 80203
Attn: Loan Documentation
ADA COUNTY RECORDER Christopher D. Rich 2019-000746
BOISE IDAHO Pgs=10 VICTORIA BAILEY 01J04/2019 09:57 AM
PIONEER TITLE COMPANY OF ADA COUNTY $37.00
ELECTRONICALLY RECORDED - DO NOT
REMOVE THE COUNTY STAMPED FIRST
PAGE AS IT IS NOW INCORPORATED AS
PART OF THE ORIGINAL DOCUMENT
VUI
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
(DEED OF TRUST)
THIS AGREEMENT is entered into as of August 1, 2018, by and between Subway Real Estate,
LLC, successorin interest to SUBWAY REAL ESTATE CORP. ("Tenant"), AVII, LLC ("Landlord") and
WELLS FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
A. Bank, or its predecessor in interest, has extended credit or may hereafter extend credit to
AVEST LIMITED PARTNERSHIP ("Borrower") secured, in whole or in part, by a deed of trust (the "Deed
of Trust") covering that certain real property situated in the County Ada, Idaho, with an address of 1890 E
Fairview Avenue, Meridian, ID 83642 (if known), as more particularly described on Exhibit A attached
hereto and incorporated herein by this reference (the "Property").
B. Tenant leases all or a portion of the Property pursuant to a lease entered into between
Landlord and Tenant, or between Landlord's and/or Tenant's assignors or predecessor(s) in interest, as
the case may be, dated as of November 22, 1995 (as such may have been amended, modified, restated,
or otherwise assigned, transferred or sub -let, the "Lease"). It is a condition of Bank's agreement to
extend or continue credit to Borrower secured by the Property that the security of the Deed of Trust be
and at all times remain a lien or charge on the Property prior and superior to the rights of Tenant under
the Lease.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SUBORDINATION.
(a) Subordination of Lease. The Deed of Trust and any and all extensions, renewals,
modifications or replacements thereof shall be and at all times remain a lien or charge on the Property
prior and superior to the Lease. Tenant intentionally and unconditionally waives, relinquishes and
subordinates the priority and superiority of the Lease and Tenant's right and interest to the Property
thereunder, including without limitation, all rights under any option(s) to purchase or right(s) of first refusal
with respect to the Property, to the lien or charge of the Deed of Trust, and any and all extensions,
renewals, modifications or replacements thereof.
(b) Reliance. Tenant acknowledges that Bank, in extending credit or continuing to extend credit
to Borrower secured by the Property is doing so in material reliance on this Agreement.
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ `IUMB:Rczcu-zoz, —,
Acknowledgments of Tenant. Tenant acknowledges that it has and will continue to obtain
ation with respect to any credit extended by Bank to Borrower, and all loan documents
connection therewith, as Tenant deems necessary in order to grant or provide this
)n. Tenant further agrees that Bank is under no obligation or duty to, nor has Bank
represented that it has or will, see to the application of the proceeds of any such credit by any person or
entity, and any application or use of any such proceeds for purposes other than those for which they were
intended shall not defeat this subordination.
(d) Entire Subordination Agreement. This Agreement constitutes the whole and only agreement
between the parties hereto with regard to the subordination of the Lease, and any applicable option(s) to
purchase or right(s) of first refusal, to the lien or charge of the Deed of Trust; there are no agreements
(written or oral) outside or separate from this Agreement with respect to the subject matter hereof; and all
prior negotiations with respect thereto, if any, are merged into this Agreement. This Agreement shall
supersede and cancel, but only insofar as would affect the priority between the Deed of Trust and the
Lease, any prior agreements as to such subordination, including without limitation those provisions, if any,
contained in the Lease that provide for the subordination thereof to the lien of a deed of trust or mortgage
affecting all or any portion of the Property.
2. LEASE. Tenant hereby covenants and agrees that, so long as the Deed of Trust remains in
force and effect:
(a) No Modification- Termination or Cancellation. Without Bank's prior written consent, which
consent shall not be unreasonably withheld or delayed, other than the exercise of rights, options, or
elections, contained in the Lease, Tenant shall not: (1) consent to any modification of the Lease that would
(1) reduce the term of the Lease, (ii) reduce the rent payable or change the due dates thereunder, (iii)
change any notice or cure period set forth therein or (iv) materially increase the obligations or
responsibilities of Landlord thereunder; nor (2) consent to any voluntary termination or cancellation of the
Lease; provided however, that the foregoing shall not prevent Tenant from terminating the Lease as a
result of a default by Landlord thereunder that is not cured within such time periods after notice, as may
be applicable thereto under the terms of the Lease and this Agreement.
(b) Notice of Default. Tenant shall use its best efforts to notify Bank in writing concurrently with
any notice given to Landlord of any breach of or default by Landlord under the Lease. Tenant agrees that
Bank shall have the right (but not the obligation) to cure any breach or default specified in such notice
within the time periods set forth below, and Tenant shall not declare a default of the Lease, as to Bank, if
Bank cures such breach or default within thirty (30) days after the expiration of the time period provided in
the Lease for the cure thereof by Landlord; provided however, that if such breach or default cannot with
diligence be cured by Bank within such thirty (30) day period, the commencement of action by Bank '
within such thirty (30) day period to remedy the same shall be deemed sufficient so long as Bank pursues
such cure with diligence.
(c) No Advance Rents. Tenant shall not make any payments or prepayments of rent more than
one (1) month in advance of the time when the same become due under the Lease.
(d) Assignment of Rents. Upon receipt by Tenant of written notice from Bank that Bank has
elected to terminate the license granted to Landlord to collect rents, as provided in the Deed of Trust, and
directing Tenant to make payment thereof to Bank, Tenant shall comply with such direction to pay and
shall not be required to determine whether Landlord or Borrower is in default under any obligations to
Bank. Bank and Landlord acknowledge and agree that Tenant shall be entitled to rely solely upon the
written demand given by Bank referred to herein. Landlord, by appending its signature below,
acknowledges and agrees that Tenant shall be entitled to full credit under the Lease for any rents paid to
-2-
APPROVED ccordance with the provisions hereof to the same extent as if such rents were paid directly to
DAT 03/08/22
�1J%UMB;R:c_cuInsurance and Condemnation Proceeds. In the event there is any conflict between the terms
ed of Trust and the Lease regarding the use of insurance proceeds or condemnation proceeds
with respect to the Property, the provisions of the Deed of Trust shall control.
3. ATTORNMENT, If Bank or any other transferee acquires Landlord's right, title and interest
in and to the Property pursuant to a foreclosure of the Deed of Trust or a transfer of the Property in lieu
thereof or in any other manner whereby Bank or such transferee succeeds to the interest of Landlord
under the Lease, Tenant agrees as follows for the benefit of Bank or such transferee:
(a) Payment of Rent. Tenant shall pay to Bank or such transferee all rental payments required
to be made by Tenant pursuant to the terms of the Lease for the remaining term thereof.
(b) Continuation of Performance. Tenant shall be bound to Bank or such transferee in
accordance with all of the terms of the Lease for the remaining term thereof, and Tenant hereby attorns to
Bank or such transferee as its landlord, such attornment to be effective and self -operative without the
execution of any further instrument immediately upon Bank or such transferee succeeding to Landlord's
interest in the Lease and giving written notice thereof to Tenant.
(c) No Offset or Lender Liability: Acts and Omissions of Landlord. Neither Bank nor such
transferee shall be liable for, or subject to, any offsets or defenses that Tenant may have by reason of
any act or omission of Landlord as the prior landlord under the Lease, nor for the return of any sums
which Tenant may have paid to Landlord as the prior landlord under the Lease as security deposits,
advance rentals or otherwise, except to the extent that such sums are actually delivered by Landlord to
Bank or such transferee, except that Tenant shall be entitled to exercise all remedies provided Tenant
under the Lease with respect to continuing defaults thereunder resulting from the acts or omissions of
Landlord, and arising after Bank has received notice of such defaults and has not cured the same after
notice and the opportunity to do so, as set forth in the Lease and this Agreement. The foregoing shall not
relieve Bank or such transferee from performing the obligations of a landlord under the Lease arising after
Bank or such transferee acquires Landlord's right, title and interest in and to the Property. In no event
shall Bank nor any such transferee be liable for, or subject to, any offsets or defenses with respect to the
return of any sums that Tenant may have paid to Landlord as the prior landlord under the Lease as
security deposits, advance rentals or otherwise, except to the extent that such sums are actually
delivered by Landlord to Bank or such transferee.
(d) Subseguent Transfer. If Bank or such transferee, by succeeding to Landlord's interest under
the Lease, becomes obligated to perform the covenants of a lessor thereunder, then, upon any further
transfer by Bank or such transferee of its interest as a lessor under the Lease, all of such obligations shall
terminate as to Bank or such transferee.
4. NON -DISTURBANCE. In the event of a foreclosure of the Deed of Trust, or a transfer of the
Property in lieu thereof or in any other manner whereby Bank or such transferee succeeds to the interest
of Landlord under the Lease, so long as there shall then exist no breach, default or event of default by
Tenant under the Lease: (a) the leasehold interest of Tenant shall not be extinguished or terminated by
reason of such foreclosure; (b) the Lease shall continue in full force and effect; (c) Bank and its
successors -in -interest shall recognize and accept Tenant as the tenant under the Lease, subject to the
terms and conditions of the Lease uc medif'ed by +hiG 9Fe9 +; and (d) Bank will not join Tenant as a
party defendant in any action or foreclosure proceeding unless such joinder is required by law to
foreclose, then only for such purpose and not for the purpose of terminating the Lease. Notwithstanding
-3-
��(E IDI� N—
APPROVED oing, Tenant and Bank agree that any option to purchase or any right of first refusal with respect
)A:P 03/08/22
perty as may be provided in the Lease (if any) shall not be binding on the Bank.
:1J%UMB;e czcu-z�zz-��° ESTOPPEL. Tenant acknowledges and represents and certifies to Bank as follows:
(a) Lease Effective. The Lease has been duly executed and delivered by Tenant and, subject to
the terms and conditions thereof, the Lease is in full force and effect, the obligations of Tenant thereunder
are valid and binding, and there have been no amendments, modifications or additions to the Lease
(written or oral), other than those expressly included in the Lease definition set forth above. The Lease
constitutes the entire agreement between Landlord and Tenant with respect to the Property, and Tenant
claims no rights to the Property other than as set forth in the Lease.
(b) No Default. As of the date hereof and to the best of Tenant's knowledge, (i) there exists no
breach of or default under the Lease, nor any condition, act or event that with the giving of notice or the
passage of time, or both, would constitute such a breach or default, and (ii) there are no existing claims,
defenses or offsets against rental due or to become due under the terms of the Lease.
(c) No Prepaid Rent. No deposits or prepayments of rent have been made by Tenant in
connection with the Lease, except as follows: security deposit in the amount of $1600.00. insert "None" or
the dollar amount of the prepaid rent, if any.
6. MISCELLANEOUS,
(a) Remedies Cumulative. All remedies provided herein are cumulative, not exclusive, and shall
be in addition to any and all other rights and remedies provided by law and by other agreements between
Bank and Borrower, Landlord or any other person or entity.
(b) Costs, Expenses and Attorneys' Fees. If any party hereto institutes any judicial or
administrative action or proceeding to enforce any rights or obligations under this Agreement, or seeking
damages or any other judicial or administrative remedy, the prevailing party shall be entitled to recover
from the other party all costs and expenses, including, subject to applicable law, reasonable attorneys'
fees (to include outside counsel fees and all allocated costs of the prevailing party's in-house counsel),
whether or not suit is brought, and if brought whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Borrower, Tenant or any other person or entity.
(c) Notices. All notices, requests and demands that any party is required or may desire to give
to any other party under any provision of this Agreement must be in writing delivered to each party at the
address set forth herein, or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or made as follows: (i) if
sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or three (3)
days after deposit in the U.S. mail, first class and postage prepaid; and (iii) if sent by telecopy, upon
receipt.
(d) Further Assurances. At the request of any party hereto, each other party shall execute,
acknowledge and deliver such other documents and/or instruments as may be reasonably required by the
requesting party in order to carry out the purpose of this Agreement, provided that no such document or
instrument shall modify the rights and obligations of the parties set forth herein.
-4-
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Borrower; Landlord. If Borrower and Landlord are the same, each reference in this
to Borrower or Landlord shall be deemed a reference to said person or entity in its respective
`7 Successors, Assigns; Governing Law. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors, legal representatives, successors, assigns and other transferees of the
parties hereto, and shall be governed by and construed in accordance with the laws of Idaho, without
reference to the conflicts of law or choice of law principles thereof but giving effect to federal laws
applicable to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT:
Subway Real Esta , L C, successor
In interest to B A EAL ESTATE CORP.
By:
Steve . Merrick
Title: Duly Authorized
Address: Subway Real Estate, LLC
325 Sub Way
Milford, CT 06461
LANDLORD;
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
GENERALPARTNER
By:
ROGER H. ALLEN,
PRESIDENT
Address:
-5-
BANK:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
LINDA K. ARMSTRONG, VICE
PRESIDENT
Address: MAC U1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Successors Assi ns; Governing Law, This Agreement shall be binding upon and inure to
of the heirs, executors, legal representatives, successors, assigns and other transferees of the
eto, and shall be governed by and construed in accordance with the laws of Idaho, without
o the conflicts of law or choice of law principles thereof but giving effect to federal laws
to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT: BANK:
SUBWAY REAL ESTATE CORP. WELLS FARGO BANK,
NATIONAL ASSOCIATION .....
LINDA , ARMST O G
Title: ;
VICE PRESIDENT
Address:
Address: MAC U1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
LANDLORD:
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN.INVESTMENT CORPORATION,
GENE ARTNER
/p f
J F,
By:
ROGER'R. ALLEN,
PRESIDENT
Address:
G:\T3\3829\Avest Limited Partnership 5-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Subway )C-531 D_ALL.doc (Rev.10/17)
APPROVED
DAT 03/08/22
:IJ 9UMB:Rczcu-zozz-000z
CONNECTICUT )
) ss. Milford
)F NEW HAVEN )
was acknowledged before me on September 7, 2018, by Steven G. Merrick, as Duly
Authorized Siqnatory of Subway Real Estate LLC successor in interest to SUBWAY REAL
ESTATE CORP.
Sharon A. Chaco
',
NOTARY PUBLIC
;� r107"APiy
State of Connecticut
My Commission Expires
pa"coi+..::`;''
April 30, 2022
(Stamp)
STATE OF IDAHO )
ss.
COUNTY OF 1
This record was acknowledged before me on
, as
National Association.
tad
6" --
Signature of notary public
My Commission Expires: April 30, 2022
_ by
of Wells Fargo Bank,
(Stamp) Signature of notary public
My Commission Expires:
APPROVED F IDAHO )
03/08/22 )Ss.
)AT OF Oc )
SCE %V96ER:czcu-zozz-000z
rd was acknowledged before me on ;2019 by
Ro +^ n as P� e. s� 7777
v7 of
AUX jr, l%(?C4L4l4,Ah
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
(Stamp)
STATE OF IDAHO )
) ss.
COUNTY OF )
'E'or 4U0,,IL.0
Signature of not! ry public
My Commission Expires: o e, r .3-,.zoL2a2 ,
This record was acknowledged before me on //-,2 q-- 0Po f by
--bOdIL_ I<. Zri m s-L, t, � , as J V'? of Wells Fargo Bank,
National Association. d
(Stamp)
SOYLA RICE
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
GAT313829Wvest Limited Partnership
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Subway )C-531 D ALL.doo (Rev.10/17)
Sign a of otary public
My Commission Expires:
C-21
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
(Stamp)
IDAHO )
ss.
)F )
was acknowledged before me on
as
_ by
of
Signature of notary public
My Commission Expires:
-7-
APPROVED
DA EI 03/08/22
SCE `IUMB:R'czcu-zozz-000z
EXHIBIT A
TO
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
Legal Description of Property:
Lot 5 in Block I of A vest Plaza Subdivision, according to the plat thereof, filed in Book 70 of Plats at
Pages 7179 and 7180, records of Ada County, Idaho.
-8-
E IDI� 11
APPROVED
DAT 03/08/22 g Requested By,
IAL
Recording, Return To:
�1J%UMB:R.czcu-zozaoARGO BANK,
ASSOCIATION
MAC C7300-033
1700 Lincoln Street, 3rd Floor
Denver, Colorado 80203.
Attn: Loan Documentation
ADA COUNTY RECORDER Christopher D. Rich 2019-000747
BOISE IDAHO Pgs=10 VICTORIA BAILEY 01J04/2019 09:57 AM
PIONEER TITLE COMPANY OF ADA COUNTY $37.00
ELECTRONICALLY RECORDED • DO NOT
REMOVE THE COUNTY STAMPED FIRST
PAGE AS IT IS NOW INCORPORATED AS
PART OF THE ORIGINAL DOCUMENT,
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
(DEED OF TRUST)
THIS AGREEMENT is entered into as of August 1, 2018, by and between WINKLE GROUP, INC.,
DBA WESTCO MARTINIZING #78, AN IDAHO CORPORATION ("Tenant"), AVII, L.L.C., AN IDAHO
LIMITED LIABILITY COMPANY ("Landlord") and WELLS FARGO BANK, NATIONAL ASSOCIATION
("Bank".).
RECITALS
A. Bank, or its predecessor in interest, has extended credit or may hereafter extend credit to
AVEST LIMITED PARTNERSHIP ("Borrower") secured, in whole or in part, by a deed of trust (the "Deed
of Trust") covering that certain real property situated in the County Ada, with an address of
(if known), as more particularly described on Exhibit A attached
hereto and incorporated herein by this reference (the "Property").
B. Tenant leases all or a portion of the Property pursuant to a lease entered into between
Landlord and Tenant, or between Landlord's and/or Tenant's assignors or predecessor(s) in interest, as
the case may be, dated as of March 9, 2011 (as such may have been amended, modified, restated, or
otherwise assigned, transferred or sub -let, the "Lease"). It is a condition of Bank's agreement to extend
or continue credit to Borrower secured by the Property that the security of the Deed of Trust be and at all
'times remain a lien or charge on the Property prior and superior to the rights of Tenant under the Lease,
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SUBORDINATION.
(a) Subordination of Lease. The Deed of Trust and any and all extensions, renewals,
modifications or replacements thereof shall be and at all times remain a lien or charge on the Property
prior and superior to the Lease. Tenant intentionally and unconditionally waives, relinquishes and
subordinates the priority and superiority of the Lease and Tenant's right and interest to the Property
thereunder, including without limitation, all rights under any option(s) to purchase or right(s) of first refusal
with respect to the Property, to the lien or charge of the Deed of Trust, and any and all extensions,
renewals, modifications or replacements thereof.
(b) Reliance. Tenant acknowledges that Bank, in extending credit or continuing to extend credit
to Borrower secured by the Property is doing so in material reliance on this Agreement.
G:1T3138291Avest Limited Partnership A-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Winkle Group, Inc.) C-531 D ALL.doc
(Rev.10/•17)
E IDI� 11
APPROVED
DAT 03/08/22 Acknowledgments of Tenant. Tenant acknowledges that it has and will continue to obtain
:IJ%UMB,R,czcu-zoz-- mation with respect to any credit extended by Bank to Borrower, and all loan documents
in connection therewith, as Tenant deems necessary in order to grant or provide this
subordination. Tenant further agrees that Bank is under no obligation or duty to, nor has Bank
represented that it has or will, see to the application of the proceeds of any such credit by any person or
entity, and any application or use of any such proceeds for purposes other than those for which they were
intended shall not defeat this subordination.
(d) Entire Subordination Agreement. This Agreement constitutes the whole and only agreement
between the parties hereto with regard to the subordination of the Lease, and any applicable option(s) to
purchase or right(s) of first refusal, to the lien or charge of the Deed of Trust; there are no agreements
(written or oral) outside or separate from this Agreement with respect to the subject matter hereof; and all
prior negotiations with respect thereto, if any, are merged into this Agreement. This Agreement shall
supersede and cancel, but only insofar as would affect the priority between the Deed of Trust and the
Lease, any prior agreements as to such subordination, including without limitation those provisions, if any,
contained in the Lease that provide for the subordination thereof to the lien of a deed of trust or mortgage
affecting all or any portion of the Property.
2, LEASE. Tenant hereby covenants and agrees that, so long as the Deed of Trust remains in
force and effect:
(a) No Modification, Termination or Cancellation, Without Banks prior written consent, which
consent shall not be unreasonably withheld or delayed, Tenant shall not: (1) consent to any modification
of the Lease that would (i) reduce the term of the Lease, (ii) reduce the rent payable or change the due
dates thereunder, (iii) change any notice or cure period set forth therein or (iv) materially increase the
obligations or responsibilities of Landlord thereunder; nor (2) consent to any voluntary termination or
cancellation of the Lease; provided however, that the foregoing shall not prevent Tenant from terminating
the Lease as a result of a default by Landlord thereunder that is not cured within such time periods after
notice, as may be applicable thereto under the terms of the Lease and this Agreement.
(b) Notice of Default, Tenant shall notify Bank in writing concurrently with any notice given to
Landlord of any breach of or default by Landlord under the Lease. Tenant agrees that Bank shall have
the right (but not the obligation) to cure any breach or default specified in such notice within the time
periods set forth below, and Tenant shall not declare a default of the Lease, as to Bank, if Bank cures
such breach or default within thirty (30) days after the expiration of the time period provided in the Lease
for the cure thereof by Landlord; provided however, that if such breach or default cannot with diligence be
cured by Bank within such thirty (30) day period, the commencement of action by Bank within such thirty
(30) day period to remedy the same shall be deemed sufficient so long as Bank pursues such cure with
diligence.
(c) No Advance Rents. Tenant shall not make any payments or prepayments of rent more than
one (1) month in advance of the time when the same become due under the Lease.
(d) Assignment of Rents. Upon receipt by Tenant of written notice from Bank that Bank has
elected to terminate the license granted to Landlord to collect rents, as provided in the Deed of Trust, and
directing Tenant to make payment thereof to Bank, Tenant shall comply with such direction to pay and
shall not be required to determine whether Landlord or Borrower is in default under any obligations to
Bank. Bank and Landlord acknowledge and agree that Tenant shall be entitled to rely solely upon the
written demand given by Bank referred to herein. Landlord, by appending its signature below,
acknowledges and agrees that Tenant shall be entitled to full credit under the Lease for any rents paid to
Bank in accordance with the provisions hereof to the same extent as if such rents were paid directly to
Landlord.
GAT3138291Avest Limited Partnership -2-
049274751312018021504(3 MNguyen (1890 E.
Fariview) (winkle Group, Inc.) C-531D_ALL,doo
(Rev.10/17)
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Insurance and Condemnation Proceeds. In the event there is any conflict between the terms
of Trust and the Lease regarding the use of insurance proceeds or condemnation proceeds
to the Property, the provisions of the Deed of Trust shall control.
3. ATTORNMENT. If Bank or any other transferee acquires Landlord's right, title and interest
in and to the Property pursuant to a foreclosure of the Deed of Trust or a transfer of the Property in lieu
thereof or in any other manner whereby Bank or such transferee succeeds to the interest of Landlord
under the Lease, Tenant agrees as follows for the benefit of Bank or such transferee:
(a) Payment of Rent. Tenant shall pay to Bank or such transferee all rental payments required
to be made by Tenant pursuant to the terms of the Lease for the remaining term thereof.
(b) Continuation of Performance. Tenant shall be bound to Bank or such transferee in
accordance with all of the terms of the Lease for the remaining term thereof, and Tenant hereby attorns to
Bank or such transferee as its landlord, such attornment to be effective and self -operative without the
execution of any further instrument immediately upon Bank or such transferee succeeding to Landlord's
interest in the Lease and giving written notice thereof to Tenant,
(c) No Offset or Lender Liability: Acts and Omissions of Landlord. Neither Bank nor such
transferee shall be liable for, or subject to, any offsets or defenses that Tenant may have by reason of
any act or omission of Landlord as the prior landlord under the Lease, nor for the return of any sums
which Tenant may have paid to Landlord as the prior'landlord under the Lease as security deposits,
advance rentals or otherwise, except to the extent that such sums are actually delivered by Landlord to
Bank or such transferee, except that Tenant shall be entitled to exercise all remedies provided Tenant
under the Lease with respect to continuing defaults thereunder resulting from the acts or omissions of
Landlord, and arising after Bank has received notice of such defaults and has not cured the same after.
notice and the opportunity to do so, as set forth in the Lease and this Agreement. The foregoing shall not
relieve Bank or such transferee from performing the obligations of a landlord under the Lease arising after
Bank or such transferee acquires Landlord's right, title and interest in and to the Property. In no event
shall Bank nor any such transferee be liable for, or subject to, any offsets or defenses with respect to the
return of any sums that Tenant may have paid to Landlord as the prior landlord under the Lease as
security deposits, advance rentals or otherwise, except to the extent that such sums are actually
delivered by Landlord to Bank or such transferee.
(d) Subsequent Transfer. If Bank or such transferee, by succeeding to Landlord's interest under
the Lease, becomes obligated to perform the covenants of a lessor thereunder, then, upon any further
transfer by Bank or such transferee of its interest as a lessor under the Lease, all of such obligations shall
terminate as to Bank or such transferee.
4, NON -DISTURBANCE. In the event of a foreclosure of the Deed of Trust, or a transfer of the
Property in lieu thereof or in any other manner whereby Bank or such transferee succeeds to the interest
of Landlord under the Lease, so long as there shall then exist no breach, default or event of default by
Tenant under the Lease: (a) the leasehold interest of Tenant shall not be extinguished or terminated by
reason of such foreclosure; (b) the Lease shall continue in full force and effect; (c) Bank and its
successors -in -interest shall recognize and accept Tenant as the tenant under the Lease, subject to the
terms and conditions of the Lease as modified by this Agreement; and (d) Bank will not join Tenant as a
party defendant in any action or foreclosure proceeding unless such joinder is required by law to
foreclose, then only for such purpose and not for the purpose of terminating the Lease. Notwithstanding
the foregoing, Tenant and Bank agree that any option to purchase or any right of first refusal with respect
to the Property as may be provided in the Lease (if any) shall not be binding on the Bank.
G;1i3138291Avest Limited Partnership 3
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Winkle Group, Inc.) C-531 D ALL.doc
(Rev.10117)
E IDI� 11
APPROVED
DA EI 03/08/22
SCE 9UMB:R'czcu-zozz-000z I
ESTOPPEL. Tenant acknowledges and represents and certifies to Bank as follows:
Lease Effective. The Lease has been duly executed and delivered by Tenant and, subject to
and conditions thereof, the Lease is in full force and effect, the obligations of Tenant thereunder
are valid and binding, and there have been no amendments, modifications or additions to the Lease
(written or oral), other than those expressly included in the Lease definition set forth above. The Lease
constitutes the entire agreement between Landlord and Tenant with respect to the Property, and Tenant
claims no rights to the Property other than as set forth in the Lease.
(b) No Default. As of the date hereof and to the best of Tenant's knowledge, (i) there exists no
breach of or default under the Lease, nor any condition, act or event that with the giving of notice or the
passage of time, or both, would constitute such a breach or default, and (ii) there are no existing claims,
defenses or offsets against rental due or to become due under the terms of the Lease.
(c) No Prepaid Rent. No deposits or r payments of rent have been made by Tenant in
connection with the Lease, except as follows: insert "None" or the dollar amount of the
prepaid rent, if any.
6. MISCELLANEOUS,
(a) Remedies Cumulative. All remedies provided herein are cumulative, not exclusive, and shall
be in addition to any and all other rights and remedies provided by law and by other agreements between
Bank and Borrower, Landlord or any other person or entity.
(b) Costs. Expenses and Attorneys' Pees. If any party hereto institutes any judicial or
administrative action or proceeding to enforce any rights or obligations under this Agreement, or seeking
damages or any other judicial or administrative remedy, the prevailing party shall be entitled to recover
from the other party all costs and expenses, including, subject to applicable law, reasonable attorneys'
fees (to include outside counsel fees and all allocated costs of the prevailing party's in-house counsel),
whether or not suit is brought, and if brought whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Borrower, Tenant or any other person or entity.
(c) Notices, All notices, requests and demands that any party is required or may desire to give
to any other party Linder any provision of this Agreement must be in writing delivered to each party at the
address set forth herein, or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or made as follows: (i) if
sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or three (3)
days after deposit in the U,S. mail, first class and postage prepaid; and (111) if sent by telecopy, upon
receipt.
(d) Further Assurances, At the request of any party hereto, each other party shall execute,
acknowledge and deliver such other documents and/or instruments as may be reasonably required by the
requesting party in order to carry out the purpose of this Agreement, provided that no such document or
instrument shall modify the rights and obligations of the parties set forth herein.
(e) Borrower; Landlord. If Borrower and Landlord are the same, each reference in this
Agreement .to Borrower or Landlord shall be deemed a reference to said person or entity in its respective
capacity.
GAT313829rAvest Limited Partnership -4-
0492747513\201802150461NNguyen (iB90 E,
Fariview) (Winkle Group, Inc.) C-531 D ALL,doc
(Rev.10117)
APPROVED Successors -Assigns; Governing Law, This Agreement shall be binding upon and inure to
DAT 03/08/22 it of the heirs, executors, legal representatives, successors, assigns and other transferees of the
reto, and shall be governed by and construed in accordance with the laws of Idaho, without
'U'` a;e; z �- to the conflicts of law or choice of law principles thereof but giving effect to federal laws
app ica a to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT:
WINKLE GROUP, INC.
Title:`�� •-2 . �6�
Address:
� 3+7ly
LANDLORD:
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
GENERAL PARTNER
By:
ROGER H. ALLEN,
PRESIDENT
Address:
BANK:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
LINDA K. ARMSTRONG,
VICE PRESIDENT
Address: MAC U1868-032
877 West Main Street, Suite 300
Boise, Idaho 83702
GAT3138291Avest Limited Partnership -5-
0492747513120180215046 MNguyen (1890 E.
Fadview) (Winkle Group, Inc.) C-531 D ALL,doc
(Rev.10117)
APPROVED Successors, Assi_ ns: Governing Law. This Agreement shall be binding upon and inure to
03/08/22 it of the heirs, executors, legal representatives, successors, assigns and other transferees of the
'" E reto, and shall be governed by and construed in accordance with the laws of Idaho, without
�1J%u'9;R,c=cu--- to the conflicts of law or choice of law principles thereof but giving effect to federal laws
to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT:
WINKLE GROUP, INC.
By:
Title:
Address:
LANDLORD:
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
G�N.CAARTN R
ROGE H. ALLEN,
PRESIDENT
Address:
BANK:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
LINDA K. ARMST _O_NG!
PRESIDENT
Address: MAC U1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
G:\T3\3829\Avest Limited Partnership -5-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Winkle Group, Inc.) C-531 D ALL.doc
(Rev.10/17)
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
IDAHO )
F
,-V
was acknowledged before -me on lqy..;;�01a
as 4- �' 1��...__. ti'
Of
1.) f rti C inch 7 "- i'C-
Signature of notary ublic /
My Commission Expires: /C7
STATE OF IDAHO )
�� •- ) S5.
COUNTY OF )
This record was acknowledged before me on by
as of Wells Fargo Bank,
National Association,
(Stamp)
Signature of notary public
My Commission Expires:
G:\T3\3829\Avest Limited Partnership -6-
0492747513\20180215046 MNguyen(1890 E.
Fariview) (Winkle Group, Inc.) C-531D ALL.doo
(Rev.10/17)
APPROVED IDAHO 1 )
o3/08/22 OF ! ' ) ss.
�a: e )
: CE %U69 ; R czcu-- - —
d was acknowledged before me on by
qoz er f-. '41(evl as _ r��� _'z�1� of
,��it'LJ :1.h�`�Q�LM.en'1- (_Of'Tx+'at�4'`�)Vl �{a•"tY°R"�3..( f�(hB^"�-vlC_f
FOT
SOYLA RICE
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
(Stamp)
STATE OF IDAHO )
l ) ss.
COUNTY OF
(Jrt L
Sig`ri5f6re i5f notary public
My Commission Expires: 0 Ca
This record was acknowledged before me on M `9 ` —'zc' I by
4 ',7 4'cR , k�- 4r-m LL , as of Wells Fargo Bank,
National Association.
(Stamp)
SOYLA RICE
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
f
GAT3\3829Wvest Limited Partnership
0492747813\20180215046 MNguyen (1890 E.
Fariview) (Winkle Group, Inc.) C-531 D_ALL.doc
(Rev.10/17)
Signature oftptary public
My Commission Expires: 0 / 3
-6-
APPROVED
DA EI 03/08/22
IDAHO )
) ss.
)F ... .... .... .... ..... _.. _.. _.. _)
This record was acknowledged before me on by
as of
(Stamp)
Signature of notary public
My Commission Expires:
G:\T313829\Avest Limited Partnership -7-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Winkle Group, Inc.) C-531D ALL.doc
(Rev.10/17)
APPROVED
DA EI 03/08/22
SCE `IUMB:R'czcu-zozz-000z i
EXHIBIT A
TO
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
Legal Description of Property:
Lot 5 in Block I of A vest Plaza Subdivision, according to the plat thereof, filed in Book 70 of Plats at
Pages 7179 and 7180, records of Ada County, Idaho.
GAT3138MAvest Limited Partnership -8-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Winkle Group, Inc.) C-531D_ALL.doc
(Rev.10/17)
E IDI� 11
APPROVED
)A:P 03/08/22 g Requested By,
r Recording, Return To:
�1,E •;UI,�B:Rczcu-zozz-000z FARGD BANK,
NA I NAL ASSOCIATION
MAC C7300-033
1700 Lincoln Street, 31d Floor
Denver, Colorado 80203
Attn: Loan Documentation
a44� M-
ADA COUNTY RECORDER Christopher D. Rich 2019-000748
BOISE IDAHO Pgs=12 VICTORIA BAILEY 01J04/2019 09:57 AM
PIONEER TITLE COMPANY OF ADA COUNTY $43.00
ELECTRONICALLY RECORDED - DO NOT
REMOVE THE COUNTY STAMPED FIRST
PACE AS IT IS NOW IlUCORPO�iATE.D A"
PART OF THE t7RfGtNAt.. DOCUMENT '
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
(DEED OF TRUST)
THIS AGREEMENT is entered into as of August 1, 2018, by and between THANAWAN
TAVIJAROEN, DUSADEE DULLAPHAN, SA-WAD-DEE, WISHES INC. ("Tenant"), AVII, L.L.C., AN
IDAHO LIMITED LIABILITY COMPANY ("Landlord") and WELLS FARGO BANK, NATIONAL
ASSOCIATION ('Bank").
RECITALS
A. Bank, or its predecessor in interest, has extended credit or may hereafter extend credit to
AVEST LIMITED PARTNERSHIP ("Borrower") secured, in whole or in part, by a deed of trust (the "Deed
of Trust") covering that certain real property situated in the County Ada, with an address of
(if known), as more particularly described on Exhibit A attached
hereto and incorporated herein by this reference (the "Property"),
B. Tenant leases all or a portion of the Property pursuant to a lease entered into between
Landlord and Tenant, or between Landlord's and/or Tenant's assignors or predecessor(s) in interest, as
the case may be, dated as of November 15, 2006 (as such may have been amended, modified, restated,
or otherwise assigned, transferred or sub -let, the "Lease"). It is a condition of Bank's agreement to
extend or continue credit to Borrower secured by the Property that the security of the Deed of Trust be
and at all times remain a lien or charge on the Property prior and superior to the rights of Tenant under
the Lease.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SUBORDINATION.
(a) Subordination of Lease. The Deed of Trust and any and all extensions, renewals,
modifications or replacements thereof shall be and at all times remain a lien 'or charge on the Property
prior and superior to the Lease. Tenant intentionally and unconditionally waives, relinquishes and
subordinates the priority and superiority of the Lease and Tenant's right and interest to the Property
thereunder, including without limitation, all rights under any option(s) to purchase or right(s) of first refusal
with respect to the Property, to the lien or charge of the Deed of Trust, and any and all extensions,
renewals, modifications or replacements thereof.
GAT3138291Avest Limited Partnership 1-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. et al) C-531 D ALL.doc
(Rev.10/17)
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Reliance. Tenant acknowledges that Bank, in extending credit or continuing to extend credit
r secured by the Property is doing so in material reliance on this Agreement.
Acknowledgments of Tenant. Tenant acknowledges that it has and will continue to obtain
such information with respect to any credit extended by Bank to Borrower, and all loan documents
executed in connection therewith, as Tenant deems necessary in order to grant or provide this
subordination. Tenant further agrees that Bank is under no obligation or duty to, nor has Bank
represented that it has or will, see to the application of the proceeds of any such credit by any person or
entity, and any application or use of any such proceeds for purposes other than those for which they were
intended shall not defeat this subordination.
(d) Entire Subordination Agreement, This Agreement constitutes the whole and only agreement
between the parties hereto with regard to the subordination of the Lease, and any applicable option(s) to
purchase or right(s) of first refusal, to the lien or charge of the Deed of Trust; there are no agreements
(written or oral) outside or separate from this Agreement with respect to the subject matter hereof; and all
prior negotiations with respect thereto, if any, are merged into this Agreement. This Agreement shall
supersede and cancel, but only insofar as would affect the priority between the Deed of Trust and the
Lease, any prior agreements as to such subordination, including without limitation those provisions, if any,
contained in the Lease that provide for the subordination thereof to the lien of a deed of trust or mortgage
affecting all or any portion of the Property.
2. LEASE. Tenant hereby covenants and agrees that, so long as the Deed of Trust remains in
force and effect:
(a) No Modification, Termination or Cancellation. Without Bank's prior written consent, which
consent shall not be unreasonably withheld or delayed, Tenant shall not: (1) consent to any modification
of the Lease that would (i) reduce the term of the Lease, ,(ii) reduce the rent payable or change the due
dates thereunder, (iii) change any notice or cure perlod.set forth therein or (iv) materially increase the
obligations or responsibilities of Landlord thereunder, nor (2) consent to any voluntary termination or
cancellation of the Lease; provided however, that the foregoing shall not prevent Tenant from terminating
the Lease as a result of a default by Landlord thereunder that is not cured within such time periods after
notice, as may be applicable thereto under the terms of the Lease and this Agreement.
(b) Notice of Default, Tenant shall notify Bank in writing concurrently with any notice given to
Landlord of any breach of or default by Landlord under the Lease. Tenant agrees that Bank shall have
the right (but not the obligation) to cure any breach or default specified in such notice within the time
periods set forth below, and Tenant shall not declare a default of the Lease, as to Bank, if Bank cures
such breach or default within thirty (30) days after the expiration of the time period provided in the Lease
for the cure thereof by Landlord; provided however, that if such breach or default cannot with diligence be
cured by Bank within such thirty (30) day period, the commencement of action by Bank within such thirty
(30) day period to remedy the same shall be deemed sufficient so long as Bank pursues such cure with
diligence.
(c) No Advance Rents, Tenant shall not make any payments or prepayments of rent more than
one (1) month in advance of the time when the same become due under the Lease.
(d) Assignment of Rents. Upon receipt by Tenant of written notice from Bank that Bank has
elected to terminate the license granted to Landlord to collect rents, as provided in the Deed of Trust, and
directing Tenant to make payment thereof to Bank, Tenant shall comply with such direction to pay and
shall not be required to determine whether Landlord or Borrower is in default under any obligations to
Bank. Bank and Landlord acknowledge and agree that Tenant shall be entitled to rely solely upon the
written demand given by Bank referred to herein. Landlord, by appending its signature below,
GAM382MAvest Limited Partnership -2-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. et al) C-531D ALL.doc
(Rev.10117)
APPROVED Idges and agrees that Tenant shall be entitled to full credit under the Lease for any rents paid to
E )A
03/08/22 ccordance with the provisions hereof to the same extent as if such rents were paid directly to
SCE %UMBER:czcu-zozz--,
Insurance and Condemnation Proceeds. In the event there is any conflict between the terms
of the Deed of Trust and the Lease regarding the use of insurance proceeds or condemnation proceeds
with respect to the Property, the provisions of the Deed of Trust shall control.
3. ATTORNMENT. If Bank or any other transferee acquires Landlord's right, title and interest
in and to the Property pursuant to a foreclosure of the Deed of Trust or a transfer of the Property in lieu
thereof or in any other manner whereby Bank or such transferee succeeds to the interest of Landlord
under the Lease, Tenant agrees as follows for the benefit of Bank or such transferee:
(a) Payment of Rent. Tenant shall pay to Bank or such transferee all rental payments required
to be made by Tenant pursuant to the terms of the Lease for the remaining term thereof.
(b) Continuation of Performance. Tenant shall be bound to Bank or such transferee in
accordance with all of the terms of the Lease for the remaining term thereof, and Tenant hereby attorns to
Bank or such transferee as its landlord, such attornment to be effective and self -operative without the
execution of any further instrument immediately upon Bank or such transferee succeeding to Landlord's
interest in the Lease and giving written notice thereof to Tenant.
(c) No Offset or Lender Liability: Acts and Omissions of Landlord. Neither Bank nor such
transferee shall be liable for, or subject to, any offsets or defenses.that Tenant may have by reason of
any act or omission of Landlord as the prior landlord under the Lease, nor for the return of any sums
which Tenant may have paid to Landlord as the prior landlord under the Lease as security deposits,
advance rentals or otherwise, except to the extent that such sums are actually delivered by Landlord to
Bank or such transferee, except that Tenant shall be entitled to exercise all remedies provided Tenant
under the Lease with respect to continuing defaults thereunder resulting from the acts or omissions of
Landlord, and arising after Bank has received notice of such defaults and has not cured the same after
notice and the opportunity to do so, as set forth in the Lease and this Agreement. The foregoing shall not
relieve Bank or such transferee from performing the obligations of a landlord under the Lease arising after
Bank or such transferee acquires Landlord's right, title and interest in and to the Property. In no event
shall Bank nor any such transferee be liable for, or subject to, any offsets or defenses with respect to the
return of any sums that Tenant may have paid to Landlord as the prior landlord under the Lease as
security deposits, advance rentals or otherwise, except to the extent that such sums are actually
delivered by Landlord to Bank or such transferee,
(d) Subseguent Transfer. If Bank or such transferee, by succeeding to Landlord's interest under
the Lease, becomes obligated to perform the covenants of a lessor thereunder, then, upon any further
transfer by Bank or such transferee of its interest as a lessor under the Lease, all of such obligations shall
terminate as to Bank or such transferee.
4. NON -DISTURBANCE, In the event df a foreclosure of the Deed of Trust, or a transfer of the
Property in lieu thereof or in any other manner whereby Bank or such transferee succeeds to the interest
of Landlord under the Lease, so long as there shall then exist no breach, default or event of default by
Tenant under the Lease: (a) the leasehold interest of Tenant shall not be extinguished or terminated by
reason of such foreclosure; (b) the Lease shall continue in full force and effect; (c) Bank and its
successors -in -interest shall recognize and accept Tenant as the tenant under the Lease, subject to the
terms and conditions of the Lease as modified by this Agreement; and (d) Bank will not join Tenant as a
party defendant in any action or foreclosure proceeding unless such joinder is required by law to
foreclose, then only for such purpose and not for the purpose of terminating the Lease. Notwithstanding
G:IT3138291Avest Limited Partnership -3-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Wishes Inc, et al) 0-531 D ALL.doc
(Rev.10117)
APPROVED Ping, Tenant and Bank agree that any option to purchase or any right of first refusal with respect
DAT 03/08/22 tperty as may be provided in the Lease (if any) shall not be binding on the Bank.
SCE `IU6IBER: czcu-zozz-000z
ESTOPPEL. Tenant acknowledges and represents and certifies to Bank as follows:
(a) Lease Effective. The Lease has been duly executed and delivered by Tenant and, subject to
the terms and conditions thereof, the Lease is in full force and effect, the obligations of Tenant thereunder
are valid and binding, and there have been no amendments, modifications or additions to the Lease
(written or oral), other than those expressly included in the Lease definition set forth above. The Lease
constitutes the entire agreement between Landlord and Tenant with respect to the Property, and Tenant
claims no rights to the Property other than as set forth in the Lease.
(b) No Default. As of the date hereof and to the best of Tenant's knowledge, (i) there exists no
breach of or default under the Lease, nor any condition, act or event that with the giving of notice or the
passage of time, or both, would constitute such a breach or default, and (ii) there are no existing claims,
defenses or offsets against rental due or'to become due under the terms of the Lease.
(c) No Prepaid Rent. No deposits or repayments of rent have been made by Tenant in
connection with the Lease, except as follows: �. insert "None" or the dollar amount of the
prepaid rent, if any.
6. MISCELLANEOUS.
(a) Remedies Cumulative. All remedies provided herein are cumulative, not exclusive, and shall
be in addition to any and all other rights and remedies provided by law and by other agreements between
Bank and Borrower, Landlord or any other person or entity.
(b) Costs, Expenses and Attorneys' Fees. If any party hereto institutes any judicial or
administrative action or proceeding to enforce any rights or obligations under this Agreement, or seeking
damages or any other judicial or administrative remedy, the prevailing party shall be entitled to recover
from the other party all costs and expenses, including, subject to applicable law, reasonable attorneys'
fees (to.inclt.tde outside counsel fees and all allocated costs of the prevailing party's in-house counsel),
whether or not suit is brought, and if brought whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Borrower, Tenant or any other person or entity.
(c) Notices. All notices, requests and demands that any party is required or may desire to give
to any other party under any provision of this Agreementmust be in writing delivered to each party at the
address set forth herein, or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or rnade as follows: (1) if
sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of receipt or three (3)
days after deposit in the U.S. mail, first class and postage prepaid; and (III) if sent by telecopy, upon
receipt.
(d) Further Assurances. At the request of any party hereto, each other party shall execute,
acknowledge and deliver such other documents and/or instruments as may be reasonably required by the
requesting party in order to carry out the purpose of this Agreement, provided that no such document or
instrument shall modify the rights and obligations of the parties set forth herein.
0:73138291Avest Limited Partnership _4.
0492747613\20180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. et al) C-531D_ALL.doc
(Rev.10/17)
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Borrower: Landlord. If Borrower and Landlord are the same, each reference in this
to Borrower or Landlord shall be deemed a reference to said person or entity in its respective
----7 Successors, Assigns: Governing Law. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors, legal representatives, successors, assigns and other transferees of the
parties hereto, and shall be governed by and construed in accordance with the laws of Idaho, without
reference to the conflicts of law or choice of law principles thereof but giving effect to federal laws
applicable to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT:
X WISHES INC. By: . J
Title: "PCs 196 NT
Address: PO t= , FA (fLV ,� Vivt-
1.
THANAWAN TAVIJAROEN
Address: b 3 v'l' +6
DUSADEE DULLAPHAN '
Address: 66 W Yd Qp-j Ve
G:1T3138291Avest Limited Partnership
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Wishes Inc, et al) C-531 D_ALL,doc
(Rev,10/17)
BANK:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
LINDA K. ARMSTRONG,
VICE PRESIDENT
Address: MAC U1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
-5-
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
Borrower: Landlord. If Borrower and Landlord are the same, each reference in this
to Borrower or Landlord shall be deemed a reference to said person or entity in its respective
`7 Successors, Assigns: Governing Law. This Agreement shall be binding upon and inure to
the benefit of the heirs, executors, legal representatives, successors, assigns and other transferees of the
parties hereto, and shall be governed by and construed in accordance with the laws of Idaho, without
reference to the conflicts of law or choice of law principles thereof but giving effect to federal laws
applicable to national banks.
(g) Conflicts. In the event of any inconsistency between the terms of this Agreement and the
Lease, the terms of this Agreement shall control.
(h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute and be construed as one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the date first written above, and as applicable, with the intention that it constitute an
instrument under seal.
TENANT: BANK:
WISHES INC. WELLS FARGO BANK,
NATIONAL ASSOCIA'
.......................................... a
By: By: _... -co.-
IA-14r'ARMS R
Title: ....---= V dE PRESIDENT
Address: Address: MAC U1858-032
877 West Main Street, Suite 300
Boise, Idaho 83702
THANAWAN TAVIJAROEN
Address:
DUSADEE DULLAPHAN
Address:
GAT3138291Avest Limited Partnership -5-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. at al) C-531 D_ALL.doc
(Rev.10/17)
E IDI� 11
APPROVED lt'c'
DAT 03/08/22 EE
r
E I.E `IU1�IBER'czcu-zozz-000z Q 0�„ �AWj-'
LANDLORD:
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
GENERALPARTNER
By:
ROGER H. ALLEN,
PRESIDENT
Address:
GAT3\3829\Avest Limited Partnership 6-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. et al) C-531D_ALL.doo
(Rev.10/17)
E IDI� 11
APPROVED
DA EI 03/08/22
:IJ NUMB:Rczcu-zoz, —,
LANDLORD:
AVII, LLC
By: AVEST LIMITED PARTNERSHIP,
MEMBER
By: ALLEN INVESTMENT CORPORATION,
GENAWAL ARTNER•,?
By:
RMW WALLEN,
PR (DENT
Address:
GAT3\38291Avest Limited Partnership -6-
0492747513\20180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. at al) C-531 D_ALL.doc
(Rev.10117)
APPROVED
DA EI 03/08/22
SCE %UMB:R' czcu-zoz, —,
DAHO )
j SS.
F
T is record was acknowledged befor�-
,T e on 00013� by
ra4nr.4w. , 74111TA IZO&-j , as ^f6�F SIaD^� r of
/ a el, ,,C-
�,®®tiva9aof®®o,�
(Stamp) ®�r�OQHER J pq�,P
•,�N•,, •,•.0�`®
�� OFo`p�®®®`
GAT3138291Avest Limited Partnership
0492747513\20180215046 Wguyen (1800 N. Locust)
(Tony Tran) C-531D_ALL.doc (RevA0117)
Signature of notary public
My Commission Expires: G fl 2c�Z I
APPROVED
DAT 03/08/22 F
SCE%V9;R:czcu-zozz-000z (
IDAHO }
) F AA )
hiaB� s record wacknowledged before me on l..�olzo /8 by
5.40CE 2ji4LcAPi1A— .
®`�'�C�@'° °°°'• ;off''°
(Stamp) Nr� o • .°. • °° ��®+
�Qa ,yQTQgj U
Z QU1300 t
• C)
®�®��cQOF a 0p '0�
STATE OF IDAHO }
} ss.
COUNTY OF }
This record was acknowledged before me on
, as
National Association.
(Stamp)
GAT3138291Avest Limited Partnership
0492747513\20180215046 MNguyen (1800 N. Locust)
(Tony Tran) C-531 D_ALL.doc (Rev.1Oil 7)
(: :_- - 7�-- -��
Signature of notary public
My Commission Expires: l ;Z 6 l
by
of Wells Fargo Bank,
Signature of notary public
My Commission Expires:
11-B
APPROVED
DA EI 03/08/22
:IJ 9UMB:Rczcu-zoz, —,
was acknowledged before me on 1- , 18 by
91.0
SOYLA RICE
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
(Stamp)
STATE OF IDAHO
)SS.
COUNTY OF )
Signature of notary public
My Commission Expires: n(v 13- �
This record was acknowledged before me on /%a9t::6X)r 9 by
i
as SV'P of Wells Fargo Bank,
National Association.
SOYLA RICE
COMMISSION NUMBER 67907
NOTARY PUBLIC
State of Idaho
My Commission Expires 06/13/2022
(Stamp)
Signature of notary public
My Commission Expires: CG,-
APPROVED
DA EI 03/08/22
SCE `IUMB:R'czcu-zozz-000z
EXHIBITA
TO
SUBORDINATION, NON -DISTURBANCE,
ATTORNMENT AND ESTOPPEL AGREEMENT
Legal Description of Property:
Lot 5 in Block I of A vest Plaza Subdivision, according to the plat thereof, filed in Book 70 of Plats at
Pages 7179 and 7180, records of Ada County, Idaho.
GAT3138291Avest Limited Partnership .7-
0492747513120180215046 MNguyen (1890 E.
Fariview) (Wishes Inc. et al) G-531 D_ALL.doc
(Rev,10117)