Warranty Deed109018091.2
RETURN RECORDED DOCUMENT TO:
FirstBank
Attn: Loan Operations
12345 West Colfax Avenue
Lakewood, CO 80215
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
FIXTURE FILING
This DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
FIXTURE FILING (this “Deed of Trust”), effective as of August 22, 2019, is entered into between
Baron Black Cat LLC, a Colorado limited liability company, whose address is c/o Baron
Property Services 1401 17th Street, Suite 700 Denver, CO 80202 (“Grantor”); FirstBank, a
Colorado state banking corporation, whose address is 12345 West Colfax Avenue, Lakewood,
Colorado 80215 (“Beneficiary”); and, David McAnaney, an Idaho licensed attorney, whose
address is c/o McAnaney & Associates PLLC, 1101 W. River Street, Suite 100, Boise, Idaho
83702, its successors and assigns (“Trustee”).
RECITALS
A. Grantor is in the business of property development. In consideration for Beneficiary
agreeing to lend up to Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000),
Grantor has agreed to execute this Deed of Trust along with the Loan Agreement (defined below)
and the Note (defined below) which were contemporaneously signed with this Deed of Trust, to
use such funds for the purpose of purchasing and conducting predevelopment work to those real
properties located in Ada County, Idaho and identified in Exhibit A, which are more commonly
known as NEC of Black Cat Road & Chinden Boulevard, Meridian, Idaho 83646 and 4740
W. Chinden Boulevard, Meridian, Idaho 83646 (collectively referred to as the “Property”), and
to permit liens against the Property for the benefit of Beneficiary.
AGREEMENT
For valuable consideration, Grantor does hereby irrevocably grant, bargain, sell and convey
in trust, with power of sale, to Trustee for the benefit of Beneficiary, all of Grantor’s right, title,
and interest in and to the Property, together with: all existing or subsequently erected or affixed
buildings, improvements and fixtures; tenements, hereditaments, privilege; all easements, rights-
of way and appurtenances; all water, water rights (including claims, decrees, permits and
applications therefor, and licenses) and ditch, canal and other irrigation rights (including stock and
memberships in canal, ditch and irrigation companies and in utilities with ditch or irrigation rights);
and all other rights, royalties, rents, and profits relating to the real property, including, without
limitation, all minerals, oil, gas, geothermal and similar matters located at the Property. The real
property described in Exhibit A hereto (i) consists of 40 acres or less, or (ii) is located within the
boundaries of an incorporated city, or (iii) consists of 80 acres or less and is not used primarily for
agricultural purposes.
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Grantor presently assigns to Beneficiary all of Grantor’s right, title, and interest in and to all present
and future leases of the Property and all rents from the Property. In addition, Grantor grants
Beneficiary a Uniform Commercial Code security interest in any leases, the rents related from the
Property and the personal property of Grantor located in the Property. The words “personal
property” mean all construction materials and equipment, furniture, furnishings, fixtures,
machinery, equipment, inventory, goods and any other items of personal property in which
Borrower now or hereafter owns or acquires an interest or right, including any leased personal
property, which are used or useful in the construction, operation, use or occupancy of the Property;
all of Borrower’s accounts receivable from the operation of the Property; all of Borrower’s
documents, instruments, contract rights, and general intangibles relating to the construction, use,
operation or occupancy of the Property; all water, water rights and ditch rights (including stock
utilities with ditch or irrigation rights), and all other rights, royalties, rents, and profits relating to
the real property, including, without limitation, all minerals, oil, gas, geothermal and similar
matters located at the Property and all insurance proceeds from any policies of insurance covering
any of the aforesaid. Lender reserves the right to file such documents to secure its interests in and
to the Collateral including a Uniform Commercial Code Financing Statement.
This Deed of Trust, Security Agreement, Assignment of Rents, and Fixture Filing is given by
Grantor for the purpose of securing payment of the indebtedness evidenced by that certain
Promissory Note dated August 22, 2019, executed by Grantor in the original principal amount of
Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000) (the “Note”), final
payment due on or before February 1, 2021, executed in connection with and subject to the exercise
of an Extension Option agreed to by Grantor and Beneficiary pursuant to that certain Loan
Agreement dated August 22, 2019 (the “Loan Agreement”), and to secure payment of all such
further sums as may hereafter be loaned or advanced by Beneficiary herein to Grantor herein, or
any or either of them, while record owner of present interest, for any purpose, and of any notes,
drafts or other instruments representing such future loans, advances or expenditures together with
interest on all such sums at the rate therein provided, however, that the making of such further
loans, advances or expenditures shall be optional with the Beneficiary, and provided, further that
it is the express intention of the parties to this Deed of Trust that it shall stand as continuing security
until paid for all such advances together with interest thereon.
Grantor and Beneficiary acknowledge and agree that this Deed of Trust will be recorded in a first
(1st) position of priority against the Property.
A. To protect the security of this Deed of Trust, Grantor agrees;
1. To keep the Property in good condition and repair; not to remove or demolish any
building thereon that has not been previously disclosed to and agreed upon by Beneficiary; to
comply in all material respects with all laws affecting the Property or requiring any alterations or
improvement to be made thereof; not to commit or permit waste thereof; not to commit, suffer, or
permit any act upon the Property in violation of law; to do all other acts which from the character
or use of said Property may be reasonably necessary; the specific enumerations herein not
excluding the general. Trustee, upon presentation to it of an affidavit signed by Beneficiary, setting
forth facts showing a default by Grantor under this Paragraph 1, is authorized to accept as true and
conclusive all facts and statements in such affidavit, and to act upon such affidavit hereunder.
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2. To provide, maintain and deliver to Beneficiary insurance as required under the
Loan Agreement.
3. To appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses,
including costs of evidence of title and attorney’s fees in a reasonable sum, in any such action or
proceeding in which Beneficiary or Trustee may appear.
4. To pay before delinquency all taxes and assessments affecting the Property, when
due; all encumbrances, charges and liens, with interest, on the Property or any part thereof, which
appear to be prior or superior hereto; all costs, fees and expenses of this Deed of Trust (for the
purposes of this Paragraph 3, collectively referred to as “expenses”). In the event Grantor wishes
to contest any expenses affecting the Property which are listed in the prior sentence, and such
expenses are suspended until a determination is rendered, then Grantor may delay payment of said
expenses until such determination is rendered, and, upon such determination being rendered,
promptly pay said expenses within five (5) business days of such determination, or sooner if
required by law. In addition to the payments due in accordance with the terms of the Note hereby
secured, at the option and on demand of Beneficiary, Grantor shall pay each month one-twelfth
(1/12th) of the estimated annual taxes, assessments, insurance premiums, maintenance and other
charges upon the Property, nevertheless in trust for Grantor’s use and benefit and for the payment
by Beneficiary of any such items when due. Grantor’s failure so to pay shall constitute a default
under this Deed of Trust.
5. To pay immediately and without demand all sums expended by Beneficiary or
Trustee pursuant to the provisions of this Deed of Trust, with interest from date of expenditure at
the Default Rate as stated in the Loan Agreement until paid.
6. No part of the Property or any legal or beneficial interest in the Property shall be
sold, assigned, conveyed, leased, transferred or otherwise disposed of (whether voluntarily or
involuntarily, directly or indirectly, or any interest in Grantor, or by operation of law or otherwise),
except as otherwise permitted by the Loan Agreement.
7. Should Grantor fail to make any payment or to do any act as herein provided, then
Beneficiary or Trustee, but without obligations so to do and without notice to or demand upon
Grantor and without releasing Grantor from any obligation hereof, may: make or do the same in
such manner and to such extent as either may deem necessary to protect the security hereof,
Beneficiary or Trustee being authorized to enter upon the Property for such purposes; appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or powers
of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien
which in the judgment of either appears to be prior or superior hereto; and, in exercising any such
powers, or in enforcing this Deed of Trust by judicial foreclosure, pay necessary expenses, employ
counsel and pay his, her, or its reasonable fees.
B. It is mutually agreed that:
1. By accepting payment of any sums secured hereby after its due date, Beneficiary
does not waive its right either to require prompt payment when due of all other sums so secured
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or to declare default for failure so to pay. At any time or from time to time without liability
therefore and without notice, upon written request of Beneficiary and presentation of this Deed of
Trust and said Note for endorsement, and without affect in the personal liability of any person for
payment of the indebtedness secured hereby, Trustee may: reconvey all or any part of the Property;
consent to the making of any map or plat thereof; join in granting any easement thereon; or join in
any extension agreement or any agreement subordinating the lien or charge hereof.
2. Upon written request to Beneficiary stating that all sums secured hereby have been
paid, and upon surrender of this Deed of Trust and said Note to Trustee for cancellation and
retention and upon payment of its fees, Trustee shall reconvey, without warranty, the Property then
held hereunder. The recitals in any reconveyance executed under this Deed of Trust of any matters
or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance
may be described as “the person or persons legally entitled thereto.”
3. As additional security, Grantor hereby gives to and confers upon Beneficiary the
right, power and authority, during the continuance of this Deed of Trust, to collect the rents, issues
and profits of the Property, reserving unto Grantor the right, prior to any Event of Default, to
collect and retain such rents, issues and profits as they become due and payable. Upon any such
Event of Default and during the continuance of, Beneficiary may at any time without notice, either
in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy
of any security for the indebtedness hereby secured, enter upon and take possession of the Property
or any part thereof, in its own name, sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney’s fees, upon any indebtedness secured hereby, and in
such order as Beneficiary may determine. The entering upon and taking possession of the Property,
the collection of such rents, issues and profits and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such
notice.
4.
a. In the Event of Default as set forth in the Loan Agreement, Beneficiary shall
execute or cause Trustee to execute a written notice of such default and of its election to cause to
be sold the herein described Property to satisfy the obligations hereof, and shall cause such notice
to be recorded in the office of the recorder of each county wherein the Property or some part thereof
is situated.
b. Notice of sale having been given as then required by law, and not less than
the time then required by law having elapsed, Trustee, without demand on Grantor, shall sell the
Property at the time of place affixed by it in said notice of sale, either as a whole or in separate
parcels and in such order as it may determine, at public auction to the highest bidder for cash and
lawful money of the United States, payable at time of sale. Trustee shall deliver to the purchaser
its deed conveying the Property so sold, but without any covenant or warranty expressed or
implied. The recitals in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including Grantor, Trustee, or Beneficiary may purchase at such
sale.
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c. After deducting all costs, fees and expenses of Trustee and of this Deed of
Trust, including cost of evidence of title and reasonable counsel fees in connection with the sale,
Trustee shall apply the proceeds of sale to payment of all sums expended under the terms hereof,
not then repaid, with the accrued interest at the highest lawful rate permissible under Idaho law,
all other sums then secured hereby; and the remainder, if any, to the person or persons legally
entitled thereto.
d. Notwithstanding any other provisions hereof or of any other agreement
between the parties hereto, under no circumstances shall the amount paid or agreed to be paid to
such Beneficiary for the use, forbearance or detention of money exceed the highest lawful rate
permissible, and if a court of competent jurisdiction shall determine that the performance of any
provision hereof or thereof shall result in payment of amount in excess thereof, then such provision
shall be deemed appropriately modified to the extent necessary to reduce such amount to that not
in excess of such rate, and any excess amount theretofore received shall be deemed applied to the
principal amount of the debt.
5. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto,
their heirs, legatees, devisees, administrators, executors, successors and assigns. The term
Beneficiary shall mean the holder and owner of the Note secured hereby; or, if the Note has been
pledged, the pledgee thereof. In this Deed of Trust, whenever the context so requires, the masculine
gender includes the feminine and/or neuter, and the singular number includes the plural.
6. Trustee is not obligated to notify any party hereto of pending sale under any other
Deed of Trust or of any action or proceeding in which Grantor, Beneficiary or Trustee shall be a
party unless brought by Trustee.
7. In the event of dissolution or resignation of Trustee, the Beneficiary may substitute
a Trustee or Trustees to execute the trust hereby created, and when any such substitution has been
filed for record in the office of the recorder of the county in which the Property herein described
is situated, it shall be conclusive evidence of the appointment of such Trustee or Trustees, and such
new Trustee or Trustees shall succeed to all of the powers and duties of the Trustee or Trustees
named herein.
8. This Deed of Trust, or a copy thereof, may be filed as a financing statement in the
appropriate state, county or municipal offices and/or in the real estate records of the Ada County
Recorder in order to perfect and protect the security interest granted herein. The mailing address
for Beneficiary, as secured party, and Grantor, as debtor, are as stated above.
9. If a court of competent jurisdiction finds any provision of this Deed of Trust to be
invalid or unenforceable as to any person or circumstance, such findings shall not render that
provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so modified, it shall be stricken and all
other provisions of this Deed of Trust in all other respects shall remain valid and enforceable.
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10. The failure on the part of Beneficiary to promptly enforce any right hereunder shall
not operate as a waiver of such right and the waiver by Beneficiary of any default shall not
constitute a waiver of any other or subsequent default.
11. Time is of the essence hereof.
12.
a. Grantor agrees to indemnify, reimburse and hold Beneficiary and its
successors, assigns, employees, affiliates and agents (hereinafter in this Paragraph 12 referred to
individually as “Indemnitee” and collectively as “Indemnitees”) harmless from any and all
liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and
any and all reasonable costs, expenses or disbursements (including reasonable attorney’s fees and
expenses) (for the purposes of this Paragraph 12 the foregoing are collectively called “expenses”)
of whatsoever kind and nature imposed on, asserted against or incurred by any of the Indemnitees
in any way relating to or arising out of this security instrument or in any way connected with the
administration of the transactions contemplated hereby or the enforcement of any terms of, or the
preservation of any rights under this security instrument, or in any way relating to or arising out
of the possession, operation, condition, sale, return or other disposition, or use of the Property
(including, without limitation, latent or other defects, whether or not discoverable), the violation
of the laws of any country, state or other governmental body or unit, any tort (including, without
limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of
injury to or the death of any person (including Indemnitee), or property damage), or contract claim;
provided that no Indemnitee shall be indemnified pursuant to this Paragraph 12 for losses, damages
or liabilities to the extent caused by the gross negligence or willful misconduct of such Indemnitee
(as determined by a court of competent jurisdiction in a final and non-appealable decision). Grantor
agrees that upon written notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, suit or judgment, Grantor shall assume full
responsibility for the defense thereof. Each Indemnitee agrees to use its reasonable best efforts to
promptly notify Grantor of any such assertion of which such Indemnitee has knowledge.
b. Without limiting the application of Paragraph 12 hereof, Grantor agrees to
pay, indemnify and hold each Indemnitee harmless from and against any loss, costs, damages and
expenses which such Indemnitee may suffer, expend or incur in consequence of or growing out of
any misrepresentation by Grantor in this security instrument or in any writing contemplated by or
made or delivered pursuant to or in connection with this security instrument.
c. If and to the extent that the obligations of Grantor under this Paragraph 12
are unenforceable for any reason, Grantor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under applicable law.
13. This Deed of Trust has been delivered to Beneficiary and accepted by Beneficiary.
This Deed of Trust shall be governed by and construed in accordance with the laws of the state of
Idaho.
[Signature on the following pages]
IN WITNESS WHEREOF, the undersigned has executed this Deed of Trust effective as of
the day and year first above written.
BARON BLACK CAT LLC,
a Colorado limited liability company
By: JRMR Baron Manager LLC,
a Colorado limited liability company,
its Manager
STATE OF COLORADO )
) ss.
COUNTY OF PRHV) £X2_ )
The foregoing instrument was acknowledged before me this \°\ day of August, 2019, by
J. Jeffrey Riggs, as Manager of JRMR Baron Manager LLC, a Colorado limited liability company,
as Manager of Baron Black Cat LLC, a Colorado limited liability company.
Witness my hand and official seal.
[seiS^rah Leticia Lara
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20164044787
MY COMMISSION EXPIRES 11/28/20
My commission expires w Iz^ko
108999251.1
[Signature page to Deed of Trust]
109018091.2
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTIES
Property 1:
Property 1, located in Ada County, Idaho, is more commonly known as: NEC of Black Cat
Road & Chinden Boulevard, Meridian, Idaho 83646. The legal description of Property 1, as
provided by the Warranty Deed filed with Ada County, Idaho, instrument number 2018-002090,
includes three (3) separate sub-parcels of real property, labeled Parcel 1, Parcel 2, and Parcel 3.
Any references made between Grantor, Beneficiary, Trustee, and/or third party to “Parcel 1”,
whether written, verbal, or otherwise, shall be interpreted to mean this Property 1, and, unless
specifically stated otherwise, not solely refer to the sub-parcel listed in the legal description of
Property 1. The legal description of Property 1 is as follows:
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Property 2:
Property 2, located in Ada County, Idaho, is more commonly known as: 4740 W. Chinden
Boulevard, Meridian, Idaho 83646. Any references made between Grantor, Beneficiary, Trustee,
and/or third party to “Parcel 2”, whether written, verbal, or otherwise, shall be interpreted to mean
this Property 2, and, unless specifically stated otherwise, not solely refer to the sub-parcel listed in
the legal description of Property 1. The legal description of Property 2 is as follows: