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Moxie Java Parking Lot Addition CZC 05-153P~z- •~ r H I CITY OF R~,.,... eY1G~1G~'yl ~~ II IDAHO '~ ! REASURE v w SINCE 1903 CERTIFICATE OF ZONING COMPLIANCE* Date: November 14 2005 Project Narne/Number: Moxie Java Parking Lot Addition -CZC-05-153 Owner: Goldfork LLC Site Address: 1630 S Eagle Road Proposed Use: Existing Multi-Tenant Restaurant Use (additional parkin fg or employees) Zoning: C-C Comments: Conditions of Approval: Project is subject to all current City of Meridian ordinances and the issuance of this permit does not release the applicant from any previous requirements of the other permits issued for this site (CZC-03-050). Site Plan: The Site/Landscape Plan prepared by Rudeen Associates on September 16, 2005, labeled Sheet A1.01 and stamped "Approved" on November 14, 2005 by the Meridian Planning Department is approved. The approved site/landscape plan is not to be altered without prior written approval of the Planning Department. No field changes to landscape plan permitted; prior written approval of all material changes is required. Irri ag tion: An underground, pressurized irrigation system must be installed to all landscape areas per the approved specifications and in accordance with UDC 11-3A-15. - Protection of Existing Trees: Any existing trees on site must be ,protected or mitigated for in accordance witli`the`Tree Preservation section of the City's Landscape Ordinance: Per UDC 11-3B- 10, coordinate with the Parks Department Arborist (Elroy Huff, 888-3579) for .approval of protection/relocationrneasures for the existing trees prior to construction. Any severely damaged tree must be replaced in compliance with UDC 11-3B-10-C5. Parkin :The proposed parking areas shall be paved and striped in accordance with UDC 11-3B. :_. Project engineer/architect shall certify that the number and size of handicap-accessible spaces conforms to the Americans with Disabilities Act (ADA). Handicap accessible stalls must have signage in accordance per ADA and signed "Van Accessible". Sidewalks: All sidewalks shall be constructed in accordance with 11-3A-17. Sidewalks shall be constructed prior to occupancy. " Drainat7e: Stone water drainage swales shall not have a slope steeper than 3:1' shall be fully vegetated, and shall be designed in compliance with UDC 11-3B-11 and UDC 11-3A-18. Fencin : Any required or proposed fencing shall be installed with current fencing standards as defined in UDC 11-3A-7. NOTE: Specific fencing requirements are required along the west boundary of this site. Li tin :Lighting shall not cause glare or impact the traveling public or neighboring development and comply with lighting standards as defined in UDC 11-3A-11. Si a e: No signs are approved with this CZC. All business signs will require a separate sign permit in compliance with UDC 11-3D. Trash Enclosure: Any dumpster(s) must be screened in accordance with UDC-11-3A-12. Trash enclosures must be built in the location and to the size approved by SSC. Handicap-Accessibility: The structure, site improvements and parking must be in compliance with all federal handicap-accessibility requirements. ACHD Acceptance: All impact fees, if any, shall be paid prior to the issuance of a building permit. If any changes must be made to the site plan to accommodate the ACHD requirements, a new site -plan shall be submitted to the City of Meridian Planning staff for approval prior to the issuance of a building permit. Certificate of Occupancy: All required improvements must be complete prior to obtaining a Certificate of Occupancy. A Temporary Certificate of Occupancy may be obtained by providing surety to the City in the form of a Letter of Credit or cash in the amount of 110% of the cost of the' remaining improvements. A bid must accompany any request for Temporary Occupancy. Plan Modifications: The approved Site/Landscape Plan, stamped "Approved" on November 14, 2005, is not to be altered without prior written approval of the Planning Department. No significant field changes to the site or landscape plans are permitted; prior written approval of all changes is required. osh Wilson Associate City Planner *This letter does not indicate compliance with requirements of other departments/agencies, including, but not limited to, Ada County Highway District, Central District Health Department, affected irrigation district(s), Meridian Sewer, ..Water, Building or Fire Departments, Sanitary Services Co., etc. This letter shall expire one (1) year from the date of issuance if work has not begun. -~,Q,~'cnvnc i~i'11~ I C../VLBrIG~1GCYl ~-'' ~ .Y `~,: -.L~ ~'=26 Tru=~ea'lu' y!rnt~l - '-- 1993 IL 3 I~ ~{,~+ i~%~'D Planning Department N ~ V ~ 2 2005ADMINISTRATIVE REVIEW APPLICATION CI7.'~ ~~ ;di~il~,iDIAN pI,~1NIVING &'LONING Type of Review Requested (check all that apply) ^ Accessory Use ^ Administrative Design Review ^ Alternative Compliance ® Certificate of Zoning Compliance ^ Conditional Use Permit Minor Modification ^ Property Boundary Adjustment ^ Short Plat ^ Temporary Use Certificate of Zoning Compliance ^ Time Extension (Director) ^ Vacation ^ Other Applicant Information Applicant name: Rudeen & Associates Applicant address:199 N. Capitol Blvd. Suite 602, Boise, ID zip: 83702 Contact name: Robert Howard Phone: 208 338-1413 Applicant's interest in property: ^ Own ^ Rent ^ Optioned ®Other OWr1er's Agent Owner name: GOldfork LLC owner address: 3990 Kootenai, Boise, I D zip; 83705 Agent name (e.g., architect, engineer, developer, representative): David Rudeen F;,,,•, ,,a..,P• Rudeen & Associates Address:199 N. Capitol Blvd. Suite 602, Boise, ID Contact name: Robert Howard Primary contact is: ^ Applicant ^ Owner ®Agent ^ Other E-mail: rhoward@rudeenarchitects.com Fax: 208 336-0371 Subject Property Information Location/street address: 1630 S Eagle Road, Meridian, ID, 83642 Assessor's parcel number(s): 87909770093 Township, range, section: 3N 1 E21 Total acreage: 0.871 Current land use: Commercial (existing building) Current zoning district: C-C zip: 83702 Phone: 208 338-1413 660 E. Watertgwer Lane, Suite 202 • Meridian, Idaho 83642 Phone: (208) 884-5533 • Facsimile: (208) 888-6678 • Website: www.meridiancity.orQ 1 r ~ ... Project Description Froject/subdivision name: Additional parking for the existing Moxie Java Building in Silverstone Subdivision General description of proposed project/request: Add 5 new parking spaces to the existing site, associated with the existing building, to be used primarily for employees of the tenant spaces, to free up spaces out front. Proposed zoning district(s): _ Acres of each zone proposed: Type of use proposed (check all that apply): ^ Residential ®Commercial ^ Office ^ Industrial ^ Other Amenities provided with this development (if applicable): Residential Project Summary (if applicable) Number of residential units: Number of common and/or other lots: Number of building lots: Proposed number of dwelling units (for multi-family developments only): 1 Bedroom: Minimum square footage of structure(s) (excl. garage): Minimum property size (s.f): Gross density (DU~acre-total land): Percentage of open space provided: Percentage of useable open space: 2 or more Bedrooms: Proposed building height: Average property size (s.f.): Net density (DU/acre-excluding roads & alleys): Acreage of open space: (See Chapter 3, Article G, for qualified open space) Type of open space provided in acres (i.e., landscaping, public, common, etc): Type of dwelling(s) proposed: ^Siugle-family ^ Townhomes ^ Duplexes ^Multi-family Non-residential Project Summary (if applicable) Number of building lots: 1 Other lots: Gross floor azea proposed: 0 s.f. of new building area Existing (if applicable): 4,166 s.f. (existing) Hours of operation (days and hours): 5:30 am to 10 pm (existing) Building height: 17'-4" Percentage of site/project devoted to the following: 37,954 s.f. (existing) Landscaping: 27.5% Building: 11 % Paving: 61.5% Total number of employees: 8 (est.) Maximum number of employees at any one time: 12 (est.) Number and ages of students/children (if applicable): Seating capacity: unchanged Total number of parking spaces provided: 23 exist. + Number of compact spaces provided: 0 5 new = 28 Authorization Print applicant name: Applicant signature: _ D Date: ~( ~/~0 S 660 E. Watertower Lane, Suite 202 • Meridian, Idaho 83642 Phone: (208) 884-5533 • Facsimile: (208) 888-6678 • Website: www.meridiancity.ore 2 ?i': ~' Wsw„~.: 3 R U D E E N & ASSOCIATES T Vroflsslonal Company Nov. I, 2005 City of Meridian Planning and Zoning Department 660 E. Watertower Ln., Ste. 202 Meridian, ID 83642 To whom it may concern: This letter is presented as part of the Certificate of Zoning Compliance Application proposing additional parking stalls for the Building at 1630 S. Eagle Road, currently occupied by Moxie Java and Quizno's. The letter is intended to clarify some of the requirements that may not be addressed on the plans. Project Proposal: The proposed project is to add five parking stalls associated with the Moxie Java Building. The initial intention is that the additional stalls be used primarily for employees of the various tenants of the building. This would in turn free up five stalls out front for customer parking. The parking is being added in a location that is currently grass. Therefore, no trees or other previously designed and approved landscape features are planned to be removed. The parking will be buffered from adjacent roads (the intersection of Eagle Road and Overland) by the existing landscaped berms, trees, and fountain feature on the corner of the development (lot 9 on the attached plans contains the water feature). No additional landscaping is being proposed. Light spill over from the tenant spaces, adjacent properties parking, and nearby street lights should provide acceptable light levels in the location of the proposed parking area. Therefore, no additional or new lighting is proposed for the new parking area. An existing trash enclosure is located in the southwest corner of the property. No additional space is being added to the building. Therefore, the existing trash enclosure will remain and no new enclosure is proposed. The existing irrigation system will be modified as required to eliminate the watering area that is proposed to become parking area. All sidewalks and paths are existing. No new sidewalks or paths are proposed other than the proposed parking area itself. The existing building is to remain unchanged. There is no existing fencing on site and none proposed. If there are any other questions, please let me know. Sincere) /J ~- ~/f~/ Robert Howard Rudeen & Associates 199 N. Capitol Blvd. Suite 602 Boise, ID 83702 v.208.338:1413 f.208.336.0371 J I I ] I ] I ~ I 5 I p 1 I I e I 9 1 ip I II I 1E I I] t is I Is I LOT 9 %' I" I ,mr- =~11 II~- I E - I ;"_;._~I ;~ I I.j ~ I T - _ ~ III II ~ - I _ ~ `i E. L - - ~ III I ~ _ p E - I \ ~ ~\ - T 1 ~ \ I II~_ -_ - I - __ ~ ~~ \C~L G I - - \ III I-- - D ,-„ a;A ~ ~//fiI~T~IT -- e ~ I I ~ f \ I \ Q I e \ \ I I ~ CALOhATIONS TOBIE T D I tlIIDea plEA./lfSlF.fR:TNJ PNdOY DPAEE FfLD7R. k~RDfF1000.0lEO~T] - I ~ n` ,V P \ I 1 1 ~ I fd4PFD 6W1.13.16V3111GD ~G~8II bB1. 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OOLOFORI( LLC. ~. moo" a, ` m. 11DN ]w-eie = ' I = 81WERSTONE MOXIE JAVA ADDITIONAL PARIONO fNlDlwux e.ur se SbNNA YDb czc APPUCanoN %' 1 ~sl I I 1 I 1 ._- I PRELIMINARY N D} F 0 R coxaTRUetlax vuRFOeeN NR&y tlsaa ~. E 7006 A1A1 J I I 1 I J I 1 I '° I s I t 1 1 I I I 1° I li I I u Ir Is Y I I 17 16 --- --- EAST OVERLAND ROAD --- --- 1 ___ 20 21 '"- I d/ v-o-o-o-v-v-u-v-o-o-o- I f P ° I ill 1`I ~~I ® I _ ° LOT 9 I® ~~ i I ~`',I~Z~___~ __ __ I ;; ~.i ;~I \~~ _ I i 'JI `;~1 > , ~II II~ I ~ J II I _M~-r /.~~prp 7 ~ _ ~ ° ~^•^^ w! ~ ~ ~ ~ `~ARCEL G I _ I I PARCEL H I I .:`.~ ~ I I I ° ~ITI~; ~-- s_ I ~ ~w ~TI~T~f ® I ° ° ~ ~~ _ I I ® .~ v ~ i ~' ® '' °__ S1T1111111T. 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' o a Q Q II2RIGATION PERFORMANCE SPECIFICATIONS UDC 11-3B-6 Project Name: ,dAb tTto-r.1.,At_ j~~, aavA ~t)tt-PCwrc~ Specifications: /~ Available Gallons per Minute: f/L~~ ~/tea °t tlCr57~/n~ Sf!fc^^ - 2r ~ LC7rE~ Available Water Pressure: Point of Connection (describe and/or submit a site plan): ~(!S ~ No /1?r~ Sta`s.! $ Primary Connection: Secondary Connection: Landscape Area: If the irrigafion system is hooked to City water as a primary or secondary water source, submit the squaze footage of landscaped aeeas to be irrigated: ~'/ST. - /2'~DOC /NS ~tCL'-A squaze feet Backflow Prevention _A backflow prevention device must be installed as required by City Ordinance 9-3. Coverage: The irrigation system must be designed to provide 100% coverage with head to head spacing or triangular spacing as appropriate. Matched Precipitation Rates: Sprinkler heads must have matched precipitation rates within each control valve circuit. Irrigation Zones: Sprinkler heads irrigating lawn or other high-water-demand aeeas must be circuited so that they are on a separate zone or zones from those irrigating trees, shrubs, or other reduced-water-demand areas. Oversptay: Sprinkler heads must be adjusted to reduce overspray onto impervious stufaces such as sidewalks, driveways, and parking areas. Notes: Irrigation Required: All ]andscape areas shall be served with an automatic underground irrigation system. Additional requirements affecting pressurized irrigation systems can be found in City Ordinance 9-1-28. Irrigation Water Source: Use ofnon-potable imgation water is required when determined to be available by the City Public Works Department as regulated by City Ordinance 9-1-28. If city potable water is used, a separate water meter is recommended so the owner can avoid paying sewer fees for irrigation water. Potable water shall not be used as a primary irrigation water source on non-residential lots with more than'/ acre of landscaping. Year round water availability is also required by connecting to city potable water or an on-site well as a secondary source. Certification: I have read and understand the above specifications and notes for irrigation systems and hereby affirm that any irrigation system installed for the project mentioned bove will comply with these spec fcations and notes. Applicant's Signature: ~ ~'~~ Date: ll // `~ AFF'II)l~VIT ®I+' I~EGAI. II~I~'EId~3'd' STATE OF IDAIIO ) COUNTY OF ADA ) (~` olc~tr~cl~. I-ir~ f ~z~ (name) ~-sesvQ~ (city) (state) being first duly sworn upon, oath, depose and say: I. That I am the record owner of the property described on the attached, and I grant my permission to: G~Ic~&~~~ LLB ,/~~ ~e~~ ~~ ~~~~~ '~~~ 1Y~t~~~.e~~-coy.-~1~~~~ (name) (address) ~j~~ Q; to submit the accompanying application(s) pertaining to that property. 2. I agree to indemnify, defend and hold the City of Meridian and its employees harmless from any claim or liability resulting from any dispute as to the statements contained herein or as to the ownership of the property which is the subject of the application. 3. I hereby grant permission to City of Meridian staff to enter the subject property for the purpose of site inspections related to processing said application(s). Dated this ~-~ day of ®C~~cn~-L. , Zp ~ ~~ (Signature) SUBSCRIBED AND SWORN to before me the day and year ~9ECORDATION REQUESTED' "; ~,'-ARMERS & MERCHANTS STJ BANK ' Meridian 703 N Main Street P O Box 328 Meridian, ID 83642 WHEN RECORDED MAIL TO: FARMERS & MERCHANTS STATE BANK Meridian 703 N Main Street P 0 Box 328 Meridian, ID 83642 SEND TAX NOTICES TO: FARMERS & MERCHANTS STATE BANK Meridian 703 N Main Street P O Box 328 Meridian ID 83642 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY DEED OF TRUST MAXIMUM LIEN. The Tien of this Deed of Trust shall not exceed at any one time 568,000.00. THIS DEED OF TRUST is dated April 19, 2004, among GOLDFORK, LLC, a Limited Liability Company, whose address is 3990 KOOTENAI, BOISE, ID 83705 ("Grantor"); FARMERS & MERCHANTS STATE BANK, whose address is Meridian, 703 N Main Street, P O Box 328, Meridian, ID 83642 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and Pioneer Title Company of Ada County, whose address is 703 S. AMERICANA, SUITE 190, BOISE, ID 83703 (referred to below as "Trustee"). CONVEYANCE AND GRANT. For valuable consideration, Grantor does hereby irrevocably grant, bargain, sell and convey In trust, with power of sale, to Trustee for the benefit of Lender as Beneficiary, all of Grantor's right, title, and interest in and to the following described real property, together with ell existing or subsequently erected or affixed buildings, improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, Including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in ADA County, State of Idaho: ' __ _ _ __ See SEE EXHIBIT "A", which is attached to this Deed of Trust and made a part of this Deed of Trust as if fully set forth herein. The Real Property or its address is commonly known as 1630 EAGLE ROAD, MERIDIAN, ID 83642. Grantor presently assigns to Lender lalso known as Beneficiary in this Deed of Trust) ali 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 to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE IA) PAYMENT OF THE INDEBTEDNESS AND (BI PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (aI this Deed of Trust is executed at Borrower's request and not at the request of Lender; (b) Grantor has the full power, right, and authority to enter into this Deed of Trust and to hypothecate the Property; Icl the provisions of this Deed of Trust do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and lei Lender has made no representation to Grantor about Borrower (including without limitation the creditworthiness of Borrower), GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. PAYMENT AND PERFORMANCE. Except as otherwise provided in this Deed of Trust, Borrower shall pay to Lender all Indebtedness secured by this Deed of Trust as it becomes due, and Borrower and Grantor shall strictly perform all their respective obligations under the Note, this Deed of Trust, and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (11 remain in possession and control of the Property; !2) use, operate or manage the Property; and (3) collect the Rents from the Property. The following provisions relate to the use of the Property or to other limitations on the Property. THE REAL PROPERTY EITHER IS NOT MORE THAN FORTY (40) ACRES IN AREA OR IS LOCATED WITHIN AN INCORPORATED CITY OR VILLAGE. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and ( DEED OF TRUST ~ Loan No: 5051335912 (Continued) Page 2 maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (21 Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (bl any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or Ic) any actual or threatened litigation or claims of any kind by any person relating to such matters; and 131 Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and Ibl any such activity shall be conducted in compliance with ail applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the pert of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (tl releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable far cleanup or other costs under any such laws; and 121 agrees to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Deed of Trust, including the obligation to indemnify, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gasl, coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. ` Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Deed of Trust. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect;-ef~lf govemmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do ail other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. TAXESAND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Deed of Trust: Payment. Grantor shall pay when due land in all events prior to delinquency)- all taxes, special taxes, assessments, charges lincluding water and sewed, fines and impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of ail liens having priority over or equal to the interest of Lender under this Deed of Trust, except for the lien of taxes and assessments not due, except for the Existing Indebtedness referred to below, and except as otherwise provided in this Deed of Trust. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property Is not jeopardized. If a lien arises or Is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a Tien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and reasonable attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property, Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender at least fifteen (t51 days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Deed of Trust. Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Trustee and Lender being named as DEED OF TRUST Loan No: 5051335912 (Continued) Page 3 additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption, and boiler insurance, as Lender may reasonably require. Policies shall be written in form, amounts, coverages and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least fifteen 1151 days prior written notice to lender. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired In any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federel Flood Insurance, If available, within 45 days after notice Is given by Lender that the Property is located In a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property, Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Deed of Trust, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Compliance with Existing Indebtedness. During the period in which any Existing Indebtedness described below is In effect, compliance with the insurance provisions contained in the Instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Deed of Trust, to the extent compliance with the terms of this Deed of Trust would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in this Deed of Trust for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness. Grantor's Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall furnish to Lender a report on each existing policy of insurance showing: (t) the name of the insurer; 121 the risks insured; (3) the amount of the policy; 141 the property insured, the then currant replacement value of such property, and the manner of determining that value; and (51 the expiration date of the policy. Grantor shall, upon request of Lender, have an independent appraiser satisfactory to lender determine the cash value replacement cost of the Property. LENDER'S EXPENDITURES. if any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Grantor fails to comply with any provision of this Deed of Trust or any Related Documents, including but not limited to Grantor's failure to comply with any obligation to maintain Existing Indebtedness in good standing as required below, or to discharge or pay when duo any amounts Grantor is required to discharge or pay under this Deed of Trust or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action tFaY-Lerider deems-appropnar~iludingbut-not-limite~to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will IA) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either It) the term of any applicable insurance policy; or (21 the remaining term of the Note; or (CI be treated as a balloon payment which will be due and payable at the Note's maturity. The Deed of Trust also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Deed of Trust: Title. Grantor warrants that: la) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender In connection with this Deed of Trust, and Ib) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Trustee or Lender under this Deed of Trust, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Lews. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Deed of Trust shall survive the execution and delivery of this Deed of Trust, shall be continuing in nature, and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of this Deed of Trust: Existing Lien. The lien of this Deed of Trust securing the Indebtedness may be secondary and inferior to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the instruments evidencing such indebtedness, or any default under any security documents for such indebtedness. No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed of trust, or other security agreement which has priority over this Deed of Trust by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust: Loan No: 5051335912 DEED OF TRUST ~ (Continued} Page 4 Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property Is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Trustee or Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Deed of Trust: Current Taxes, Feea and Charges. Upon request 6y Lender, Grantor shall execute such documents in addition to this Deed of Trust and take whatever other action is requested by Lender to perfect and continue Lender's Tien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Deed of Trust, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Deed of Trust. Taxes. The following shall constitute taxes to which this section applies: (tl a specific tax upon this type of Deed of Trust or upon all or any pert of the Indebtedness secured by this Deed of Trust; (21 a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by this type of Deed of Trust; (3) a tax on this type of Deed of Trust chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Deed of Trust, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of Its available remedies for an Event of Default as provided below unless Grantor either (11 pays the tax before it becomes delinquent, or 121 contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Deed of Trust as a security agreement are a part of this Deed of Trust: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall execute financing statements and take whatever other action is requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Deed of Trust in the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Deed of Trust as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon defaulS, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three 13) days after receipt of written demand from Lender to the extent permitted by applicable law. Addresses. The mailing addresses of Grantor (debtor) and lender (secured party) from which information concerning the security interest granted by this Deed of Trust may be obtained (each es required by the Uniform Commercial Code) are as stated on the first page of this Deed of Trust. FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Deed of Trust: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (tl Borrower's and Grantor's obligations under the Note, this Deed of Trust, and the Related Documents, and (2) the liens and security interests created by this Deed of Trust on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in•Fect. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. It Borrower pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Grantor under this Deed of Trust, Lender shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Grantor suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property. Any reconveyance fee required by law shall be paid by Grantor, if permitted by applicable law. EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Deed of Trust: Payment Defauit. Borrower fails to make any payment when due under the Indebtedness. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Deed of Trust or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower or Grantor. Compliance Default. Failure to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note or in any of the Related Documents. If such a failure is curable and if Borrower or Grantor has not been given a notice of a breach of the same provision of this Deed of Trust within the preceding twelve (72) months, it may be cured (and no Event of Default will have occurred) if ( DEED OF TRUST ~ Loan No: 5051335912 (COtltlllLled) Page 5 Borrower or Grantor, after Lender sends written notice demanding cure of such failure: lal cures the failure within fifteen (15) days; or Ib1 If the cure requires more than fifteen 1151 days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this Deed of Trust or the Related Documents is false or misleading in any materiel respect, either now or at the time made or furnished or becomes false or misleading et any time thereafter. Defective Collateralization. This Deed of Trust or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolution or termination of Borrower's or Grantor's existence as a going business, the insolvency of Borrower or Grantor, the appointment of a receiver for any part of Borrower's or Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency Taws by or against Borrower or Grantor. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by Judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Borrower's or Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower or Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower ar Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being en adequate reserve or bond for the dispute. Breach of Other Agreement. Any breach by Borrower or Grantor under the terms of any other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Borrower or Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Borrower's or Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. Lender in good faith believes itself insecure. Existing Indebtedness. The payment of any installment of principal or any interest on the Existing Indebtedness is not made within the time required by the promissory note evidenan, g suc6indebfedhess, or a default occurs under the instrument securing such indebtedness and is not cured during any applicable grace period in such instrument, or any suit or other action Is commenced to foreclose any existing lien on the Property. Right to Cure. If such a failure is curable and if Borrower or Grantor has not been given a notice of a breach of the same provision of this Deed of Trust within the preceding twelve (12) months, it may be cured land no Event of Default will have occurred) if Borrower or Grantor, after Lender sends written notice demanding cure of such failure: la) cures the failure within fifteen (151 days; or (b) if the cure requires more than fifteen (15) days, immediately initiates steps sufficient to cure the failure and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Deed of Trust, at any time thereafter, Trustee or Lender may exercise any one or more of the following rights and remedies: Notice of Default. In the Event of Default Lender shall execute or cause the Trustee to execute a written notice of such default and of Lender's election to cause the Property to be sold to satisfy the Indebtedness, and shall cause such notice to be recorded fn the office of the recorder of each county wherein the Real Property, or any part thereof, is situated. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Deed of Trust, after Grantor's failure to perform, shall not affect lender's right to declare a default and exercise its remedies. Accelerate Indebtedness. Lender shall have the right at its option without notice to Borrower or Grantor to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Borrower would be required to pay, Foreclosure. With respect to all or any part of the Real Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. UCC Remedies. With respect to ail or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Borrower or Grantor to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the ( DEED OF TRUST (~ Loan No: 5051335912 (Continued) Page 6 Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shell exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either 11) pay a reasonable rental for the use of the Property, or (21 vacate the Property immediately upon the demand of Lender. Other Remedies. Trustee or Lender shall have any other right or remedy provided In this Deed of Trust or the Note or by law. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten If O1 days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waives any and all rights to have the Property marshalled. In exercising its rights and remedies, the Trustee or Lender shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Notice of sale having been given as then required by law, and not less than the time required by law having elapsed, Trustee, without demand on Grantor, shall sell the property at the time and place fixed by it in the notice of sale at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee shall deliver to the purchaser his or her deed conveying the Property so sold, but without any covenant or warranty express or implied. The recitals in such deed of any matters or facts shell be conclusive proof of the truthfulness of such matters or facts. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title and reasonable attorneys' fees, including those in connection with the sale, Trustee shall apply proceeds of sale to payment of (a) all sums expended under this Deed of Trust, not then repaid with interest thereon as provided in this Deed of Trust; (b) all Indebtedness secured hereby; and (c) the remainder, if any, to the person or persons legally entitled thereto. Attorneys' Fees; Expenaes. if Lender institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's reasonable attorneys' fees and lender's legal expenses whether or not there is a lawsuit, including reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal tees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth in this section. POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust: Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Property upon the written request of Lender and Grantor: (a) join in preparing and filing a map or plat of the Real Property, including the dedication of streets or other rights to the public; Ib) join in granting any easement or creating any restriction on the Real Property; and (c) join in any subordination or other agreement affecting this Deed of Trust or the interest of Lender under this Deed of Trust. 061igations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other trust deed or lien, or of any action or proceeding in which Grantor, Lender, or Trustee shall be a party, unless the action or proceeding is brought by Trustee. Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of the Property, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, In either case in accordance with and to the full extent provided by applicable law. Successor Trustee. Lender, at Lender's option, may from time to time appoint a successor Trustee to any Trustee appointed under this Deed of Trust by an instrument executed and acknowledged by Lender and recorded in the office of the recorder of ADA County, State of Idaho. The instrument shall contain, in addition to all other matters required by state law, the names of the original Lender, Trustee, and Grantor, the book and page where this Deed of Trust is recorded, antl the name and address of the successor trustee, and the instrument shall be executed and acknowledged by Lender or its successors in interest. The successor trustee, without conveyance of the Property, shall succeed to all the title, power, and duties conferred upon the Trustee in this Deed of Trust and by applicable law. This procedure for substitution of Trustee shall govern to the exclusion of all other provisions for substitution. NOTICES. Any notice required to be given under this Deed of Trust, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile lunless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. All copies of notices of foreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to lender's address, as shown near the beginning of this Deed of Trust. Any party may change its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice Is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Deed of Trust: Amendments. This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports, if the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a DEED OF TRUST Loan No: 5051335912 (COfitillUed) Page 7 certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net opereting income" shall mean ail cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. Arbitration. Borrower and Grantor and Lender agree that all disputes, claims and controversies between them whether individual, joint, or class In nature, arising from this Dead of Trust or otherwise, Including without limitation contract and tort disputes, shall be arbitrated pursuant to the Rules of the American Arbitration Aasocietion in effect at the time the claim is Tiled, upon request of either party. No act to take or dispose of any Property shall constitute a waiver of this arbitration agreement or be prohibited by this arbitmtion agreement. This Includes, without Ilmitation, obtaining injunctive relief or a temporary restraining order; Invoking a power of sale under any deed of trust or mortgage; obtaining a writ oT attachment or imposition of a receiver; or exercising any rights relating to personal property, Including taking or disposing of such property with or without judicial process pursuant to Article 9 of the Uniform Commercial Code. Any disputes, claims, or controversies concerning the lawfulness or reasonableness of any act, or exercise of any right, concerning any Property, including any claim to rescind, reform, or otherwise modify any agreement relating to the Property, shall also ba erbkrated, provided however that no arbitrator shall have the right or the power to enjoin or restrain any act of any party. Judgment upon any award rendered by any arbitrator may be entered in any court having jurisdiction. Nothing in this Deed of Trust shall preclude any party from seeking equitable relief from a couR of competent jurisdiction. The statute of limitations, estoppel, waiver, laches, and similar doctrines which would otherwise be applicable in an action brought by a party shall be applicable in any arbitration proceeding, and the commencement of an arbitration proceeding shall be deemed the commencement of en action for these purposes. The Federal Arbitration Act shall apply to the construction, Interpretation, and enforcement of this arbitration provision. Caption Headings. Caption headings In this Deed of Trust are for convenience purposes only and are not to be used to interpret or define the provisions of this Deed of Trust. Merger. There shall be no merger of the interest or estate created by this Deed of Trust with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Governing Law. This Deed of Trust will be governed by, construed end enforced in accordance with federal law and the laws of the State of Idaho. This Deed of Trust has been accepted by Lender in the State of Idaho. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Ada County, State of Idaho. Joint and Several Liability. All obligations of Borrower and Grantor under this Deed of Trust shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Borrower and Grantor signing below is responsible for all obligations in this Deed of Trust. Where any one or more of the parties is a corporation, partnership, limited liability company or similar entity, it is not necessary for Lender to inquire into the powers of any of the officers, directors, partners, members, or other agents acting or purporting to act on the entity's behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Deed of Trust. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Deed of Trust unless such waiver is given in writing ----and-signed~y-Lender.-Nodelay~omission-on the mart-of Lender in exercising any right shall operate as a waiver of such right or any - other right. A waiver by Lender of a provision of this Deed of Trust shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Deed of Trust. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligaticns as to any future transactions. Whenever the consent of Lender is required under this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in ell cases such consent may be granted or withheld in the sole discretion of Lender. Severability. If a court of competent jurisdiction finds any provision of this Deed of Trust to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Deed of Trust. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Deed of Trust shall not affect the legality, validity or enforceability of any other provision of this Deed of Trust. Successors and Assigns. Subject to any limitations stated in this Deed of Trust on transfer of Grantor's interest, this Deed of Trust shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Deed of Trust end the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Deed of Trust or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Deed of Trust. Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption Taws of the State of Idaho as to all Indebtedness secured by this Deed of Trust. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Deed of Trust. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Deed of Trust shall have the meanings attributed to such terms in the Uniform Commercial Code: Benefcfary. The word "Beneficiary" means FARMERS & MERCHANTS STATE BANK, and its successors and assigns. Borrower. The word "Borrower" means GOLDFORK, LLC; and BOULDER CREEK ENTERPRISES, INC. and includes all co-signers and co-makers signing the Note. Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Grantor, Lender, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property arid Rents. Default. The word "Default" means the Default set forth in this Deed of Trust in the section titled "Default". - Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, - ( DEED OF TRUST ~ Loan No: 5051335912 (Continued) Page 8 Compensation, and Liability Act of 1980, as amended, 42 U,S.C. Section 9601, et seq. ("CERCLA"I, the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default sat forth in this Deed of Trust in the events of~ default section of this Deed of Trust. Existing Indebtedness. The words "Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this Deed of Trust. Grantor. The word "Grantor" means GOLDFORK, LLC. Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation party of any or alt of the Indebtedness. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" ere used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Trustee or Lender to enforce Grantor's obligations under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. Lender. The word "Lender" means FARMERS & MERCHANTS STATE BANK, its successors and assigns. Note. The word "Note" means the promissory note dated April 19, 2004, in the original principal amount of $68,000.00 from Borrower to Lender, together with all renewals ot, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. The maturity date of this Deed of Trust is July 10, 2004. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, end all substitutions for, any of such property; and together. with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Deed of Trust. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. Trustee. The word "Trustee" means Pioneer Title Company of Ada County, whose address Is 703 S. AMERICANA, SUITE 190, BOISE, ID 83703 and any substitute or successor trustees. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND GRANTOR AGREES TO ITS TERMS. GRANTOR: GOLDFORK, LLC By: ~. COPY ROBIN R WALLIS, Member of GOLDFORK, LLC ~~ ' ~ ~ DEED OF TRUST Loan No: 5051335912 (Continued) Page 9 LIMITED LIABILITY COMPANY ACKNOWLEDGMENT STATE OF COUNTY OF ISS On this day of , in the year 20 ,before ma a notary public in and for the State of Idaho, personally appeared ROBIN R WALLIS, Member of GOLDFORK, LLC, known or identified to me for proved to me on the oath of ), to be one of the members or designated agents in the limited (lability company of GOLDFORK, LLC, and the member or designated agent or one of the members or designated agents who subscribed said limited liability company name to the foregoing instrument, and acknowledged to me that he or she executed the same in said limited liability company name. Residing at Notary Public for Idaho My commission expires To: REQUEST FOR FULL RECONVEYANCE (To be used only when obligations have been paid in full) Trustee The undersigned is the legal owner and holder of all indebtedness secured by this Deed of Trust. All sums secured by this Deed of Trust have been fully paid and satisfied. You are hereby directed, upon payment to you of any sums owing to you under the terms of this Deed of Trust or pursuant to any applicable statute, to cancel the Note secured by this Deed of Trust (which is delivered to you together with this Deed of Trustl, and to reconvey, without warranty, to the parties designated by the terms of this Deed of Trust, the estate now held by you under this Deed of Trust. Please mail the reconveyance and Related Documents to: Date: BeneTiciary: By: Its: USED MDLeCnO.L'v.p.i3.]O.OJS COp. NVIwO ffineW 6eLlbn,.lne. ~33]~SM1. MIUMM1 PxsW. SID GlCFl1LT1W1.iC 1P~SSSS fN~] • PLANNING & ZONING DEPARTMENT INSPECTION CHECKLIST COMMERCIAL/CZC SITES This checklist should be attached to the inside cover of the CZC file at ALL times. Planner/lnspector Name: Project Name: Contractor/Company Name: CZC File No.: Phone No.: First Inspection Date: //_ Second Inspection Date: / / Third Inspection Date: _/ / (NOTE: If a third inspection is required, a fee of $60 must be submitted to the P&ZDept. be ore the inspection is done.) Rer. 5,•15; (1 i a: `tPc4Z brad€FcfZ.4r;~r[ir, tDepurnnc~r.[ Puh~ Landscape Plan Checklist z Rer..5%15.-17j .: ~Pc41' 3rrufPc~Z.=Ili{;nin~PeE>;:rtment Polrc~es Site Plan Checldist Post-Inspection Checklist .: =!'<4li8; ~ rilJ'd l ~?d;;; inJ,: pa.•r:r, evtt Polici;>s * The only instance that a CO maybe released prior to 100% completion of improvement is inclement weather, as determined by the Director. If weather is a factor, follow MCC 12-13-19-2.