Cherry Lane Recreation Inc. Lease MemoOffice
of the
City Attorney
The City of Meridian - Idaho's Initial
Point of Beginning
To: Mayor Corrie
From: Bill Gigray, City Attorney
Re: Cherry Lane Recreation, Inc
Date: September 10, 1999
Lease
200 E. Carlton Ave. Suite 31
PO Box 1150
Meridian ID 83680-1150
Phone: 288-2499 Fax: 288-2501
E-mail: wfg@wppmg.com
have been advised by Mr. Gerry Mattison, of the Idaho Independent Bank, that
the City is requested to sign an Acceptance of Lessor, which is a Schedule C to a
"Leasehold Deed of Trust". I found a copy of a draft document Leasehold Deed of Trust
in the file but it had been placed with the material associated with the "Memorandum of
Lease Agreement', which we prepared for the purpose of establishing for the record that
the Lease Agreement concerned the entire 18 holes. I never saw any directive from
either the Bank, or Cherry Lane Recreation, Inc., that the City was to execute any such
document so I did not review it.
am enclosing a copy of the Draft "Leasehold Deed of Trust and Schedule C for
your review. This document purports, as is characteristic of Deeds of Trust, to establish
Pioneer Title Company as Trustee for the benefit of the Bank, with the power to sell,
enter and take possession of Cherry Lane Recreation, Inc.'s interest in the lease in the
event of default. This document is designed to secure the performance of a Line of
Credit of $500,000.00. Note in part (b) of section 1 "Obligations" it provides: "all other
present or future written agreements with Lender which refers specifically to this Deed of
Trust (whether executed for the same or different purposes than the foregoing);..." This
section also provides for any guaranty of obligation or future advances which this Deed
of Trust is referred, and even provides for the amounts of advance under this Deed of
Memo Re: Deed of Trust Golf Course - Page 1 of 2
Trust to not exceed $1,000,000.00.
In section 2 of the Deed of Trust, subsection (f), it provides: "Grantor is the owner
of the tenant's interest under the Lease and there are no defaults thereunder. Grantor
has good right and lawful authority to grant and convey its interest in the Lease and the
granting of this Deed of Trust is not in violation of any provision of the Lease."
In section 18 the Lender, in the event of default, could enter upon and take
possession of the golf course, employ a management agent of the Property and let the
same, and/or foreclose on the leasehold, which would invoke a sale of the leasehold.
The Schedule C is an agreement and consent of the City to this Deed of Trust
arrangement. It requires that the City, in the event of a default of the Lease Agreement,
must give 60 days notice to the lender, and the City agrees to subordinate any lien it may
have or subsequently acquire upon the chattels of Cherry Lane Recreation, Inc. The
acceptance also has a provision that the City is benefitting from this arrangement.
The Agreement of Lease dated the 3" of October, 1978 provides at section 14
"ASSIGNMENT AND SUBLETTING, Lessee shall not assign, transfer or sublet this
lease, or any portion thereof, or any privilege hereunder, either voluntarily or
involuntarily, without the prior written consent of Lessor, which consent shall not be
withheld unreasonably: except that Lessee may assign its right, title and interest in and
to this lease agreement with right of reassignment, to its lender and to a Meridian local
development company." This language is not clear, and I do not at this time know why
this is in the Lease Agreement. It does appear that there was contemplation regarding
assignment to a lender.
ADVISE OF PROPOSED ACTION: This matter has never come before the City
Council and because the Agreement of the Lease, and any permission to sublease or
assign requires permission of the City, I recommend that the Council consider this at its
next meeting.
CONCERN: This will place a lien on the leasehold and could provide for a lien in
the amount of up to $1,000,000.00, as written, which could be the result of other
advances and/or loans to Cherry Lane Recreation, Inc.
have enclosed a copy of the Deed of Trust and the Schedule C for your review.
ZAM MM\Meridian 15360MICherryLane Land Exchange\MayorCherryLnRecLease091099.Mem
Memo Re: Deed of Trust Golf Course - PagQ2 of 2
After Recordation Retum to
LEASEHOLD DEED OF TRUST
ln"emiutlfk Of the loan or other credit ao0offNrt citation heralrefter
L4"e
............
YOrJ w_ ",tb;05t�
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t
and atw fut.- arivant�e — hd." ewi.':e
:uffid " --m-w of amurm am ON VU31 119faindfiff Mentioned and other good and valuable
ency of which are hereby aclutowled"4 coraiderMi".." -mos* find
successors and assign, in VUK for 9111ft".. --eys and Usigns I 1O.Trint" his,
the beneffelary under this Dead of Trust with power of
sets and right Of on" and possession all of Grantor's Inters" 10 that c0nW ft" described in
Schedule A (the 'Lease'); such leasefloid estate being located On the tend described in Schedule 8 Rhe Iandl together with all present. ancl-futurs,
tenements, hemdiftrfiqrit� and appudenfew"; and the reversions, remalrudsm, mitia and profits pertaining to tiro ran( property.: &umuwvsly,:
-Pro~. to. have and to hold the Property and the rights hereby granted for the use and benefit of Trustee,,= his su. successors and ~a, until
paymentin tug of all Obligations secured hereby.
Moratmeri-In further:00DWdletation, Gfa=( does, for Grantor and Grantor's halts, representatives. successors. end'
wwf&nt, COvsOmt. and agree with Lender •and Trustee and their successors and assigns as follows: . . !srvgn� to
a may"
I. OBLIGATIONS This Deed of Trust shall ascurs the PaYMOM and P6601111ance of ad present and future Indebtedness, flabilidec oblige One and
covenants Of BOM200f Or Grantor (cumulatively 'Obiloaflons') to Lender pursuant to: J—
(6) iltlii'Oead of Trust and the fOH0wkV Promissory notes and
Lander which reftf spscificafly, to this Deed of Trust (whether exa"tad ;,rthe i" iW
dilta-1101 411111514041than the foregoing);
(c) any guaranty Of Obligations of other parties given to Lander now or h9reaftsiaxo'cute'd Which refers to this Dead of Truit-,
7-(d) future advances, whether abliGgapy, oro 10 the Same extenLas It made oontempominecualy.wilit . . .01
Trust made or extended to or on behalf at Grantor or Sommer. GjanUly &g,&$ that it one of a 11114-41COCIAlOn of this Deed of
is a line of credit the Han of -this
ina.lionylahistanding the fact that flarn time to time. (but before
Dead at Trust shall continue until payment in full Of a" debt due under The r the Obligation
tertMnation of.the Ileo) no balance may be outmandfing. At no time all the lion ofthle Dead of Trust 111011 Including amounts advanced to
7 .:!-protect the secuittyofthis Deed of Trus% exceed S ,m It 04 0 t3 - 06 9 and
" r : (a) ail amendments. extanalorus. renewals, i rNPIMCORMAIS Of Sulsaidutitins to any of the foregoing.
As used in this Paragraph 1, the farms Grantor and BOMMW Shall Include and else, rn9sn any Grefflor or Borrower If more than one.
2. REPRIESIENTATIOU% WARRANTIES AND COVIYAKIL Grantor represents, warrants and covenants to Lender that
1— (2): Grantor shelf makfaun the Property frea of all dens, 9ftwitif W1111WOM, encumbrances and claims except for it
iof Trusil' and: those,
fm in a timely manner, Incorporated herein by reference, whim Gran sqrsea,�o pay' end'
dec"Ibed In Schedule C which 14 3ftdtsd 10 Via Dead of Trust and 11100 its Dead
all mapects; wtmwi &OpficabIsfedwal, state and iccallaws and r*guladohsjnckscg�g,'
ut llmiii� those
11111112flals.' as defined heroin. and other environmental matters (the "Switchmeritej LAW11, sVW;1*tI`W Vie,fsdwal-
government nor The itsto where the Prop" is located nor any other governmental Or quasi 9"MMental amity has ffW4'p 44ft'an the.
Property. nor are then! arry, governhignag. judicial of administrative actions with (aspect to environmental matters pandiniI, W 16 tit beet of the
.:,,qF"('3.kncwIa;da9, threatened. which involve the Property. Neither Gnunnr nar. to Me best Of Grantor's knawl6d 'other
generated, released, discharged. stared, at disposed Of, any H&zafft is Matensts as defined op. party' ham
heroin. in "Me Son property of
transported any Hazardous Materials to or from Me PropertyOffthlor shall not commit or permit such actions to be likiii in the'lutum.' The
-M. I'tazardous Materials' shall mean any substance, material, or waste which is or becomes regulated by
=224 but not limited to: 01 Petroleum; (R) Friable or nontrabe agicpaw, M p0"Itifinated blpheri* Qv) those substances, MaWWg*
wastes designated as a -hazardous substance' pursuant to Section 311 Of the avan Water Act or to -5!! 1
Water Act of any amendments or replacements to these statutes; (y) then substances, mate"s 3=1 of AV994A.
or waatae� defiried - 4f"hazardoup
jairsuant.to $soon 1004 Of the Resource Conaft"flOn and PAcOvOfY Act Of any amendments or replaCOMMS to that gt&bJW, And °" fji0se'
subiftlinC93, materlsla at wastes defined 96 a Inazardous substance pursuant 19 Section 101 Of the Comp
Compensation and Liability Act or &try arnandn wen wettainst" "Winer
.,tv
,
d! Of MPiaCments to thadMaMe or any 01116(similar stidii of ledorslst=4
.9�.vr nance now or herealim In effect. Grantor shall not leas* Or Permit the sublease of the Property to a tons
_Operations maymault In contamination of the Property with Hazardous Materials ortaxle substance;
(c) All applicable lam and regulations Includl", without liffiftsdo, , dur. -1
regulations promulgated thersuncla) and ail zoning and buddl n, the Airwicans: with 012W3411"o Art 42'.Y.4., 7210.11,0(49% (and ad
ng laws and regulations ralating to the Prop" byvinu
municipal authority with )urtediction over the Property, presently are I.Of.wy federal, state or
";1: and shall be Observed and compiled with )it ell'nudgital raspKiz; and sit
rights; licenses. permits. and cftnlflc8t" Of occupancy oncluding but not limited to 2arilng variances, 91566W'ex:e�- faterxi
n -Ing'
LIM,: and final Inspection approyslfq. whether UIMPOMY or Permanent, which 2M matsf(Als to Me use and ,:?nkm
pi'mandy are and shall be obtained. preserved and, where nqO9es&ry, renewed: :Tpn.
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(d) Grantor hat the right and Is duly authorized to execute and perform fill Obligations under this Deed of Trust and these actions do not and
shad not canllict with the provisions of any Statute, regulation, ordinance, rule of law, contract or other agreement which may be binding on
Grantor at any time; i
(e) No action or proceeding Is at shalt be pending or threatened which might materially affect the Property;
(Q Grantor is the owner of the tenant's interact under the Lease and there are n0 defaults Ihereund4f. Grantor has good right end lawful
authority to grant and convey Its informal In the Leese and the granting of this Dead of Trust is not In violation of any provision of the Leese;
to) Grantor will excuse ail renewals of the Lease unless Lender approves of the non-renewal and will furnish proof of payment of any Lease
obligations of Grantor upon request of Lender, and
(h) Grantor has not violated and shelf not violate any statute, regulation, ordinance, rule of taw, contract at other agreement (including, but not
limited to, those governing Hazardous Materials) which might materially affect the Property or Landers rights or interest In the Property,
pursuant to this Deed of Trust.
3. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Grantor hereby authorizes lender to contact any third party and make any'Inquiry
pertaining to Grantor's financial oonditbn or the Property. In addition, Lender is authorizea to provide oral or written nonce of its Interest In the
Property to any third party.
4. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN GRANTORS OR BORROWERS. In the event 01 a sets, conveyance, leam.
contract for deed or transter to any person of all or any part of the Property, any of Grantor's interest or rights under the Lease, or any Interest therein,
or of all or any beneficial interest In Borrower of Grantor [f Borrower or Grantor )s not a natural person of persons but Is a corporation, partnership,
oust, or other legal entity). Lender may, at Its option, declare the outstanding principal balance of the ObU03110ns plus accrued interest thereon
Immediately due and payable. At Lender's request, Grantor or Borrower, as the case may be, shall furnish a complete statement setting forth all of Its
stockholders, members or partners, as appropriate, and the extant of their respective owner-.hip Interests.
S. SUBLEASES AND OTHER AGREEMENTS. Grantor shall not take or fell to take any action which may cause or permit the termination Or the
withholding of any payment in connection with any sublease or other agreement ('Agreement') pertaining to the Properly. In addition, Grantor,
without Lender's prior written consent, shall not: (a) Collect any monies payable under any Agreement more than one month In advance; (b) modify
SAY Agreemeni: (c) assign or allow a Gen, security Intereal or other encumbrance to be placed upon Grantor's rights, title and Interest in and to any
Agreement or the amounts payable thereunder, or (d) terminate or cancel any Agreement except tot the nonpayment of any sum or other material
breach by the other party thereto. 11 Grantor receives at any time any written communication asserting a default by Grantor under an Agreement or
purpamng to. terminate, of cancel any Agreement. , Grantor , shall promptly forward a Copy of such communication (and any subsequent
communications relating thereto) to tender. All such Agreements and the amounts due to Grantor thereunder are hereby assigned to Lander as
additional saeurlty for the Obligations.
a. COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shalt be entitled to notify or require Grantor to notify any third party (including.
but not limited to, lessees, licensees, governmental authorities and Insurance companlss) to pay Lander any indebtedness or obligation owing to
Grantor with respect to the Property, (cumulatively 'Indebtedness') whether at not a default exists under this Deed of Trust. Grantor shall diligently
collect the Indebtednses owing to Grantor from these third parties until the giving of such notification. In the event that Grantor possesses or receives
possession of any Instruments at other remittances with respect to the Indebtedness following the giving of such notification or it the Instruments or
other remittances constitute the prepayment of any Indebtedness ar the payment of any Insurance or condemnation proceeds, Grantor shall hold
such Instruments and other remllancos In oust for Lender apart from its other property, endorse IM instruments and other remieanees to Lender,
and immediately provide Lender with possession of the Instruments and other remittances. Lender shell be entitled. but not required, to collect (by
legal proceedings or otherwise), extend the time for paymork, Compromise, exchange or release any obligor or collateral, or otherwise settle any of
the Indebtedness whetter at not an Event of Default exists under this Dead of TrusL lender shatl'nol be liable to Grantor far any action, error,
mistake, omission at delay pertaining to the actions described in this paragraph or arty damages resulting therefrom. Notwithslandlnp the foregoing,'
notning herein shad cause Lander to be doomed a mortgageetin-possesslon.
T. USE AND MAINTENANCE OF PROPERTY. Grantor shall take aft actions and make any repairs needed to maintain the Property in good
condhlon. Grantor shall not commit or permit any waste to be committed with respect to the Property. Grantor shall use the Property solely In
comptlanrus with applicable law and Insurance policies. Grantor shall not make any alterations, addition% of Improvements to the Properly without
Lender's prior written Consont. IMthout limiting the foregoing, all alterations. additions and Improvements made to the Property shall be subject to
the beneficial Interest belonging to Lender, sha11 not be removed without Lender's prior written consent, and shall be made at Grantor'% sale expense.
a. LOSS OR DAMAGE. Grantor shell bear the entire risk of any loss, theft, destruction or damage (cumulatively -LOSS or Damage') to the Property of
any portion thereof from any cause whatsoever. In the event of any lass or Damage, Grantor Shod, at the option of Lender, repair UN affected
Property to its previous condition at pay or cause to be paid to Lender the decrease In the fair market value of the affected Property.
9.. INSURANCE.'The Property will be kept Insured for Its full Insurable value (replacement coot) against alt hazards Including lass or damage caused
by flood, earthquake, tornado and Ore, theft of other casualty to the extent required by lender. Grantor may obtain Insurance on Ina Property from
such companies as are acceptable to lender In its sale discretion. The insurance policies stall require the Insurance company to provide Lender with
at feast days' written notice before such policies ars altered or cancelled in any manner. Tha Insurance policies shall name Lander
as a loss payee and provide that no act or omission of Grainier or any other person &hall affect the right of Lander to be paid the Insurance proceads
pertaining to the loss or damage of the Property. in the event Greiner, falls to acquire or maintain insurance, Lander (after providing notice as may be
required by law) may In its discretion procure appropriate Insurance coverage upon the Property and the Insurance cost shall be an advance payable
and bearing Interest as described in Paragraph 22 and secured hereby. Grantor snail furnish Lender with evidence of Insurance Indicating the
required coverage. Lander may act as alit msy4n-fact for Gremor In making and seldi g Claims under Insurance policies, cancelling any policy or
endoraing Grantors name on any draft or negotiable Instrument drawn by any insurer. AN such insurance policies Shall be Immediately assigned.
pledged and delivered to Lander as further security for the Obligations. In the wont of loss. Gtomor shall immedlalely give Lender written notice and
Lander Is authorized to make proof of loss. Each insurance Company la directed to make payments drectly to Lender Instead of to Lender and
Grantor. Lander shall have the right. at Its sol* option, to apply such monies toward the Obligations at toward the coal of rebuilding and roslaflng the
Property. Any amounts may at lender's option be applied in the Inverse order-of the due dates thereof.
10. ZONING AND PRIVATE COVENANTS. Grantor shad nW Initiate or consent 10 any change In the zoning provisions or private covenants affecting
the use of the Property wilhrwt lender a pilot written consent. it Grantor's use of the Property becomes a nancenfaiming use under any zoning
Provision, Glamor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Lender. Grantor will
Immediately provide Lender with written notice of any proposed changes to the zoning provisions or private covenants affecting the Property.
11. CONDEMNATION. Grantor shelf immediately provide Lander with written notice of any actual or threatened condemnation or eminent domain
proceeding pertaining to the Property. Ad monies payable to Grantor from such condemnation or taking aro hereby assigned to Lander and "I be
appllad /lrt to the payment of Lender's anommyi fees, legal expenses and other costs (Including appraisal (ees) to connection with the
condemnation or eminent domain proceedings and then, at the option of Lender, to the payment e1 the Obligations or the rastorallon or repair of the
Property.
12 LENDER'S RIGHT TO COMMENCE OR DEFEND LEGAL ACTIONS. Granlor shell immediately provide Lender with written notice of any actual
or threatened action, suit, or other proceeding affecting the Property. Grantor hereby appoima Lander as Its aNaney-In•faa to Commence, Imervens
in, and defend such eclions, sulfa, Of other legal proceedings and to compromise of settle any Claim or controversy pertaining thereta:'tender shell
not be Gable to Grantor for any action, error, mistake, emission or delay pertaining to the actions described In this paragraph or any damages
resulting therefrom. Nothing contained herein wiH prevent Lender from taking the actions described In this paragraph In Its awn name.
13. INDEMNIFICATION. Lender shall riot assume or be responsible for the performance of any of Grantor's obligallons with respect 10 In* Propeny
under any circumstances. Grantor shall Immediately provide Lender with written notice of and Indemnify and hold Lander and Its shateholders,
directors, officers, employees and agents harmless from all claims, damages, liabaitios Qncluding attorneys' fees and legal expenssa), causes of
action, actions, sults and other legal proceedings (cumulatively 'Claims') pertaining to the Property (including, but not smiled to, those Involving
Hazardous Materials). Grantor, upon the request of Lander, shell hire legal counsel to defend Lender from such Claims, and pay the attorneys' fees,
legal expenses and other costs incurred In connection therewith. In the alternative: Lander shall be entitled to employ Its own legal counsel to defend
such Claims at Grantors cost. Grantor's obligation to indemnity Lender under this paragraph shalt survive the termination. release or foreclosure of
this Dead of Trust." ` ,. „
14. TAXES AND ASSESSMENTS. Grantor shall pay all taxes and assessments rafallng to the Property when due and immedlatey Pravlde Lander
evidence of payment of sam4. Upon the request of Lender, Grantor, shad deposit with Lander each month anatwoMh (1/12) of the estimated annual
Insurance premium, taxes and assessments pertaining to the Properly. So long w there is no default, these amounts snail be applied to the payment
of taxes, assessments and Insurance as required on the Property. In lie event of dmlault, Lender shelf have the right. at Its sok option; toapply the
funds so hold to pay any taxes or against the Obligations. Any funds applied may, at Lender's option, be applied In reverse order o1 the due date
thereof.
15. INSPECTION OF PROPERTY, BOOKS, RECORDS AND REPORTS. Grantor shall allow Lender or Its agent. to examine and inspect the
Property and examine, inspect ind make copies of Glamor's books and records pertaining to the Property from time to time. Grantor shall provide
any assistance required by Lender for these purposes. Alt of the signatures and information contained In Grantor's books and records shelf be
genuine, true, emulate and complete In all respmcla. Grantor shell note the existence of Lender's beneficial Interest In Its looks end records
pertaining to the Property. Additionally, Grantor shall report, In a form amisfaotory to lander, such information as Lender may request regarding
Grantor's financial condition or Ute Property. The information shall be for such periods. shall reflect Grantor's records at such time, and &hail be
rendered with such frequency as Lender may designate. Ali Information furnished by Grantor to Lender snail be true, accurate and complete in all
respects, and signed by Grantor If Lender requests.
IS. ESTOPPEL CErMFICATFS Within ten (10) days after any request by Lander, Grantor shall deliver to Lender, or any Intended transfetee of
Lender's rights with respect to ins Obligations, a signed and acknowledged statement specifying (a) the outstanding balance on the Obligations; and
(b) whether Grantor possesses any claims, defenses, selof s or countarclaims with respect to the Obligations and, it so, the nature of such daims,
defenses. But-offs or counterclaims. Grantor will be conclusively bound by any representation that Lender may make to the Intended transferee with
respect to theta matters In the event that Grantor fails to provide the requested statement In a timely manner.
unstsxm++r.,,,,nikn.ma. phrsraq ("Ce) 07-3704 11.e.2.1a
t7. EVEI4TS OF DEFAULT. An Event of Default shall occur under this Deed of Tent and the Trustee's power shall become operative In the event
that Grantor: Gorower or any guarantor of any Obligation:
falls to pay any Obligation to Lender when due:
falls to perform any Obligation or breaches any warranty or covenant to Lender contained In this Deed of Trust or any athar praaard or,
future agreement; :...::
(a) destroys, loess or damages the Property In Any material respect or subjects the Property to seizure; doMfeeation or condemnation;
(d) seeks to revoke, terminate or otherwise limit Its liability under any guaranty to Lender,
a din. become legally incompetent, Is dissolved or armin-to . becomes Insolvent, makes an assignment far the benefb of creditors, falls
to pay debts as they become due, files a petidon under the federal bankruptcy Iowa, has an kwoluntary, Petition In bankruptcy filed Itt winch.:.:
Grantor. Borrower or any guarantor is named, Of tem property taken under array writ or process of scum :.
m . slows goods to be used, transported or stated an the Property, tine possession, Iranwattabon. or use of which. is illegal; ,r,
(g) allows any party oMar than Grantor or Borrower, to assume or undertake any Obligation without the written consent*( Lander or, i -
(h), causes Lender to dawn hast[ Insecure due to a significant decline In the value of the Property; or Lender. In good:Wpl,, tor, any reason"
believes that the prospect of payment or performance is Impaired.
1& . RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of Default under this Deed of Trust,. Lender ef1aH bq -*Rod
to exerolsa one or mora of the follawing remedies without notice or demand (except as required by law);
(a) to declare the Obligations immediately due and payable In full, such acceleration shall be automatic and Irri rned ele�ji h4l, Event of
Default is a filing undo(" Bankruptcy Code;
(b) to collect the outstanding Obligations with or without resorting to judicial process: ..... ,.:-_
(e)„ to require, Grantor to deliver and make available to Lender any personal property or Chattels constltutlng'the • r. Plopeiyi et a place
reasonably convenient to Grantor and Under,
(d) to anter upon and take possession of the Property without applying for or obtaining the appointment of a recover and, at Lairwer'a'
option, to appoint a receiver without bond, without first bringing cult on the Obligations and without otherwise meeting any'stahrtory
con
diflons regerr(Mg receives, It being Intended Mal Lender shall have this mrmsawai right to appoint a reoelver,
is), to employ a managing agent at the Property and ill the same, either In Trust"'it own name, In the name of Lander or In! the masa of `
Grantor, and receive the rents, Incomes, Issues mW profit of the Propany and apply the same, alter payment of all necessary charges and
�'.`expenaes, oh eccourtt of the Obligations: .. ... .
"(n, to pay any some In any torts er manrnr dnmed expaudient by Lender a broad the security of this Deed of Trust or to cure any default
other than p.ym.rk of inlereri er prinopal on the Obggatlens; • • .. , : ':: ,.::.
(g� to }orecloea MIs Deed of Truri j„didally or nonjudldally; _.,..,.. -. -.. ,
(n to.eetoff.Grantor a Obligatlom agaInri any amours owed Grantor. by Lander including, but (rot limited to. monies. Inetrumsrma,',.and
depcek aeeounb maintakhed with Lander or any eunenty existing or future MHllete of Lander; and
(p to vxerdse all other right nvallable to Lantler under any other wriman agrsempnt or appNnbIs law.
Lender's rigttte aro cumulative and may bo axsreiesd together, ssparataly, end in arty order. In the event Mat Lander In rules an nation seeidiv the
recovery, d NY of the Property by way of a prejudgment tsmedy In ab arxim egalnri Grantor, Grouhtor waives the posting'ol any Bond Which might..
pa a it, s ba re h pare Lander er tender's s Len as may pureness tin Propery at arty etw. Tha Property or any part thereof may pe surd In one
part)el,.01, In such percale, manner or order as Lender In to sole discretion may shot and one or mora. examim cl the paw here granlad shall not.
extpr sli or sahauet Mo pciwr unions the entire Property is sold or the Obligafiona are paid In full.
18. LEASEHOLD PROVISIONS.
(a) Grantor agrees that Grantor will timely perform all obligations of Grantor under the Lease and that k will not mite m dmit to feks any
action which will cause a default thereunder or that with notice or afar the passage of time, or both, would be a default thereunder, Grantor
agrees that It will promptly notify Lands( In writing of any default by Grantor under ins Lease and that it will promptly send tothe Lander arty
notice (other than on a regular periodic basis for monthly rent payments) from the Landlord under the Lease, Including any notion noting or
claiming any default by the Grantor under the Leese,
(b) Lender shall hew the right to cure any default under the Lease within the time permitted In the lease and all sums advanced thereby
shall be Immediately dere and payable with interest thereon of the sewer of the highest rate described in any Obligation or Me highest rate
allowed by law from the date of payment until Me data at reimbursement and shall, together with such Interest, become a part of the
Obligations.
(c) In case of an Event of Default under Paragraph 17, in addition to any other rights and remedies available, Lender may make full or partial
payments of rent due under On Lease, perform any otlter obligattans of Grantor under the Lease and purchase, discharge, compromise, or
settle the Lenge. NI monies paid for any of th'purposes herein aulhadzed and all expenses paid or Incurred In connection therewith,
Including attorneys' fees, to the extent permitted sppOe" law, -shall be w much additional indebtedness secured hereby, and shall
become Immediately due and payable without notice and with interest thereon. Inaction of lender shall new be considered as a waiver of
any right aocndng to It on account of any default on the pan of Grantor.
(d) Pity default on the pan of Grantor under the Losse shall constitute a default under this Deed of Trust and the Obligations secured hereby
and shall entitle the Lender to exercise any and all rights and remedies given hereunder.
(a) Grantor will not amend or modly the Lease without the prior written consent of Lender.
2o. MERGER OF FEE til LEASEHOLD ESTATE In the event that Grantor acquires the fee title or eery other estate, tide or Interest In the premises
covered by the Less, thin Deed of Trust shall attach to and cover and be a Oen upon the fee title or such other estate so acquired and such fee title or
other estate shall, without further assignment grant or conveyance become and be subject to the lien or encumbered by this Dead of Tnist.
21. SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE This Dead of Trust shall be considered a financing statement and a
fixture filing pursuant to the provisions of the Un"mm Cemmardd Cods (ss adopted by the stats where the Property Is located) covering filatures,
d hMtels, and andWee of Personal property now owned or hereafter attached to or to be used M connection with the Property together with any end ail
rsplacemente thereof and additions tharsto (the 'Chadela'), and Grantor hereby grants Lender a security interest In such Chattels. The debtor Is the
Grantor described above. The secured parry is the Lender dee" ad above. Upon demand, Grantor shall make, execute and deliver such security
agrnmems (as such term is defined in said Uniform Commercial Coda) as Lander at any time may doom necessary or proper or require to grant to
Lender a perfected security Interest In the Chattele. and upon Grarrtor'e failure to do so, Lender Is authorized to sign any such agreement as the
agent of Granter. Grantor hereby authorizes Lender to fila financing statements (as such term is defined In said Uniform Commercial Code) with
rasped to the Chattels, at any time, without the signature of Grantor. Grantor will, however, at any time upon request of lender, sign wen financing
statements. Grantor will pay all filing fees for the filing of such financing staeaments and for the rePoing thereof at the rimes required, in the opinion of
Lender, by said Uniform Commercial Code. If the Gen of this Dead of Trust Is subject to any security agreement covering the Chattels, then In the
word of any default under this Deed of Tent, all the right, title and kntereat of Grantor in and to any and all of the Chattels Is hereby assigned to
Lander, together with the "to it of any deposits or payments now or hereafter made thereof by Grantor or the predecessors or sueeewore In We W
Grantor In the Property.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Lander, at Larder's option, may expend funds anduding attcrnsya' fpos and
legal ems) to perform any act required to be taken by Grantor or to exerclse any light or remedy of Lander under this peed cf Tru -m Upon'
demand, Grantor shall Imrnssdkay rakntxxse Lender for all such amounts expanded by Lender tog~ with Interest thereon at they lower of the'
highest rate described In any Obllgnflon or the highest rate allowed by law tram the state of paymum until the data of rahnbusoment. These sums
shell be Included in the definition at Obligations herein and shag be secured by the beneficial interest granted herein. If the Obligations we pald,aller
the beginning at putilk ation of notice of sale, as heroen
in provided, or in the event Lder shad, at Its sole optica partnk Grantor to pay wry part of the
Obligatkma after the beginning of pubkortion of notice of sale, as herein prodded, then; Grantor shad pay on demand all expenses Incurred by the
Trustee and Lender In connection with sabd pubdandw. Includkhg reasonable attorneys' nes to the attorneys for the Trustee and for the lender, and a
reasonable fes to the Trustee, and this Owed of Trust shall be security for ail such expenses and fees.
27. APPLICATION OF PAYMENTS. AN payments meds by or on behalf of Grantor may be appled against the amounts paid by Lander ung
attorneys lees and legal expenses) in xxnnertton with the oxenclas of its rights or romedigs described In Mia O"11 of Truss pnd then.Iq (Qs payment .•
of Me remain" Obligations In whatever order Lower chooses.
24, POWER OF ATTORNEY. Grantor hereby appoints Lender as its ottomay4n4sat to endorse Granter's name on all Instruments and other
documeirts pertaining to the Obligations or Deed of Trust In addition, Lander shall be entitled. but not required, to perform any action or execute
any document required to be taken of executed by Grento( under this Dead at Trust Landsr'a pertormance of such action or exatartlen .of each
documents shall not relieve Grantor from any Obligation or auto any default under this Deed of Trust AN pones of attorney aesErlbad In'thlicuden Deed o1
Trust are coupled with an Interest olid ars irrevocable.
2& SUBROGATION OF LENDER. lander shall be subuogalad to the rights of the holder of any previous lien, security Interest or encumbrance
discharged with funds advanced by Lender regardless of whether these liens, security interests of W her encumbrances have been released of record.
28. COLLECTION COSTS. To IN extent Permitted by law, Grant" agrees to Pay Lender's reasonable fess and caste, Including, but not Hmlted to.
fees and wets of aftomeye and other agents (Including without Gmitetion paraisgals, dorka and oonsultants), whether or not such attorney or agent Is
an employee of lander, which are incurred by Lander in collecting any amount due or enforcing any right or remedy under this Deed of Trust
whether or mat suit Is brought, Including, but not limited to, all tees and costs incurred on appeal, in bankruptcy, and for postjudgment cogealn
ne
&alo. , o-
27. PARTIAL RELEASE Lander may release its interest in a portion of the Property by executing and recording one of more partial relesaaa without
affecting Its interest In the remaining portion of the Property. Nothing horain shall be doomed to obligate Lender to release any of Its Interest In the
Property (except as required under Pwagraph 36), not shell Lender be obligated to release any part of the Property It Grantor Is In default under We
Dead of Tntst.
21L MODIFICATION AND WAIVER. The modification or waiver of any of Grantor's Obligations or Lender's rights under this Dead of Trust must ben,w.
contained In a writing signed by Lower• Lender may psnofm any of Borrower's or Grantef's Obligations, delay m fail to exercise any of Re rights or
accept payments from Grantor or anyone other than Grantor without causing a waiver of those Obligations at lights, A waiver on one aces -'on shall
not constitute a waiver on any other occaslon. Grnto is Obligations under this Deed of Trust shall not be affected It Lender amonds, compromises,
exchanges, falls to exercise. Impala or releases any of the Obligations belonging to any Grantor, Borrower or third parry or any of he rights against
any Grantor. Borrower or third party or any of the Property. Lender's lalktre to Insist upon strict performance of any of Me Obligations shall not be
doomed a waiver, and Lender &hell have the right at any time thereafter to Insist upon Strict performance.
uAb'167Be'� FOa�We,^ T�eho.eie9he. M.G (l liw/a9 daaq a]7.aree - 1 �.,
nye 7 W e
29 SUBSTi1 UTE TRUSTEE let time of the death, Inability, talusal to act or absence of the Truates from the slate wham the Property lIt located or In
case the holder of the Obligations shall desire far any reason to remove the Trustee or any aubatifute trustee as frustee hereunder and to appoint a
now trustee In No place and stead, the holder of the Obligations is hereby granted full power to appoint In writing a substitute trustee for sald Trustee,
and the substitute trustee atoll. when appointed, become successor to all rights of Trustee hereunder and the acme shall became vested In him far
the purposes and objects of this Deed of Trust with ell the power, duties and obligations herein contorted an the Trustee.."
30. SUCCESSORS AND ASSIGNS. TMs Deed of Taut shell be binding upon and Inure to the benefit of Grantor and Lander and their respectl-
succesaora; assign; trusssea; receivers, admtnlsualors, personal representatives, legatees and devisees.
31: NOTICES; 'FAcapf as'othenvlae required bylaw, arty notice deolher Qommuhleatlon to be provided under this Data of Trust shall be In writing
and sent to the parties at the addressee described In this Deed of Trust or such other address as the parties may designate In writing from time td
time. Any such notice so given and sent by first class mall, postage prepaid; shell be deemed given the earlier of three 13) days after such notice to
sem at when received by the person to whom such notice Is being given -.. • .. I de: .:a
EV
3z SERABILITY:Whenever possible• each provlslon at thio Dead of Truitt shag be Interpreted to be velld and enforceable under sppileWe state
law. It any Provision of tete Dead of Ttustviotates the taw or Is unenforceable, the festal this Dead of TAist shag continue to be valid and enforceable.
33•`APPLtCABLE LAW. This Ned of Trust shall be governed by the taws at the state where the Prupatty Is located. Uritis appgcable iaii'provfdes
otherwise, Grantor consents to fife jtxlsdlegon and venue of any.court sleeted by Lender, In Its sot* discretion, located In that state. r•
36, NO THIkd4"TY RIGHTS. No person is or shall be a third beneficlary of any provision of tido Coed of Trust All provisions of this Dead of
Trust In favor of Lander are Intended solely for the benefit of Lander, and no third party shag be entitled to assume or expect that Lander will waive or
000130171 to uta modification of any provision of We Owed of Trust. in Lander's sole discretion.
35. PRESERVATION OF LIABILITY AND PRIORITY. Wthout affecting the liability of Borrower, Grantor, or any guarantor of the Obliigeilontl, or any
Other Pwcon (except a person expressly released In fwhing) for the payment and performance of the Obligations, and without affecting the rights of
Lender with respect to any Properly not expressly released In writing, and without Impairing in any way the priority of this Deed of Trust over the
Intorest of any person acquired or first evidenced by recording subsequent to the recording of this Coed of Trust. Lender may, elthsr before or after
Me maturity of the Obligations, and wiftut notice or consent: release any parson liable for payment or performance of all or any part of the
Obllg"ona;.make any agreement altering the terms of payment or performance at all or any part of the Obligations; exercise or rofrdn from
exercising or waive any right at r*msdy that Lander may have under this Deed of Trust accept additional manlyy of any kind for any of the
Obllgattens; or teleses or otherwise deal with any real or personal property securing the Obligations. Any person acquiring of recording avldenos of
any interest of any nature In the Properly shall be deemed, by acquiring such interest or recording any evidence thereof, to have consented to all of
any such actions by Lender.
31.' DEFE/ASANCL. Upon the payment and paAormanes in full at all at the Obligations, Lender will execute and deliver to Grantor those documents
that may be required to release this Deed at Trust of record. Grantor shag be responsible to pay any coats of recordation.
37• MISCELLANEOUS. Grantor and Lender agree that time Is of the essence. Grantor waiv■a presentment, demand for payment nation of
dishonor and protest except as required by law. All references to Grantor In this Died of Trust shag Include W persons signing below, 11 there Is,
more than one Grintbr, their Obligations shag be joint and several- This Deed of Trust represents the complete Integrated understanding between
Grantor and Lender O"ning to the terms and conditions hereof.
3a- JURY TRIAL WANER. LENDER AND GRANTOR HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, `
OR BASED UPON, THIS DEED OF TRUST.
39. ADDITIONAL TEAMS.
Grantor aokrowledgsa that Grantor has read, understands, and egress to the terms and conditions of this Dead of Trust and acknowledges receipt of
an exact copy of same.
Deled ihld "' • " �:,:::'`r•" tiny of .
GRANTOR .lJ^ .,• ly, Lotrip Ql.cx r JN Lv\L GMNTOR .. - : r, ,; ;•..,
GRANTOR- . GRANTOR: .. .
GRANTOR: .. GRANTOR: ..
T r..
GPMTOfI' GflANTOfl: ...
•fA3i]7en n eenWion Teer,neY,]Ir., nom, 111!'+!981 18aP1 9377799 Pelle � el e
ACCEPTANCE OF LESSOR
Title acceptance is executed this 19" , by the undersigned ale Lesaor under the Lease
described on Schedute A.
I. Lessor agrees and consents to Grantor's grant and assignment to Lender undo this Dead of Trust of Grantor's Interest as lenonl under the Lease,
Loom rsplesenle qui the Lease Is currently valfd and enforceable according to Its terms and that Orentor is not presently In default under III* Lease.
Lessor further repteeante that Is la the owner of UN leafed promises and has lug power and authordy, to enter IMe this Agreement.
2 Lessor agrees gist during Ulf term of Ude Deed of Trust, no modlgoWons to or termination of the Lease vAN be undertaken wllhout first oWatnkrg
the written consent of Lander.
3. In the event of Oranlor's defaall under the Lease, Lessor agrees to notify Lender of such default in wttdng at least sixty (W) days pilot to taking
action to enforce any of Leeson'& rights under the Lease. Outing Into aWy-day, period, Lender shelf have IM option to cuts the delsuU of lake such
ollim aodon as may be necessary to protect Lander's security Interest In the Lease and any Chattels of Grantor under this Deed of Trust or any other
agreement between Grantor and Lander.
4. Lessor agrees to subordinate any Ran It may have or subsequently aoquhe upon any CTatlels of Gtmlor whlc h may be subject to any aecurlty,
Interest of Lander unllf such lfme as this Deed of Trust Is terminated.
S. Lessor acknowledges that II has and will benefit am a (salt of the financial sccommodetlons extended to Grantor by Lender and that Under wid
rely on die a0oepioncJJe. �A�r L
LE33011: Cl tLy Y M_ ePr 7 � � LE350M CI ' y � /ter "�� n!R •/'/V
haycR. 4
TIIIS DOCUMENT WAS PREPARED BY: IOW INDEPENDENT BW
_AFTEO'nECOnDIND RETURN TO LENDEn AT ITS ADDRESS DESCRISEO ABOVE. PAGE 5 DF 6
The following.doacrlbed reel'proppdy located In live County of Slate of
.$i MED .
......., r ..-..................... w..q wnn nv ,u n FACE 6 of 6
** TOTAL PAIS.06 x*
Nu -Pacific Company, Inc.'s conveying to the City of Mer-
idian per the agreement between those parties dated
�cfobc.Y .3 , 1978.
12, COMPLIANCE WITH LAW. Lessee, at its sole
expense, shall comply with all laws, orders and regulations
of federal, state and municipal authorities, and, at its sole
expense, shall obtain all licenses or permits which may be
required for the conduct of its business within the terms of
this lease, or for making of repairs, alterations, improve-
ments or additions, and Lessor, where necessary, will join
with Lessee in applying for all such permits.
13. SURRENDER AND TERMINATION. Lessee shall, on
the expiration, or the sooner termination as herein provided,
of this lease, surrender to Lessor the leased property,
including all buildings, replacements, additions and improve-
ments constructed or placed by Lessee thereon, with all
equipment in or appurtenant thereto, free from all liens,
encumbrances and subtenancies and in good condition and
repair, reasonable wear and tear excepted.
Upon termination of this lease, Lessee, its suc-
cessors and assigns, shall at all times execute, or cause
to be executed, all necessary documents required to surrender
leased property, including all buildings, replacements, addi-
tions and improvements constructed or placed thereon by
Lessee, its successors and assigns, with all equipment in
or appurtenant thereto.
14. ASSIGNMENT AND SUBLETTING, Lessee shall not
assign, transfer or sublet this lease, or any portion thereof,
or any privilege hereunder, either voluntarily or involun-
tarily, without the prior written consent of Lessor, which
AGREEMENT OF LEASE - P. 6
consent shall not be withheld unreasonably; except that
Lessee:mayassign its right, title and interest in and to
this lagreement with right of reassignment, to itslenderto a Meridian local development company.
15. RENEWAL. Lessee shall have the option to
renew this lease, on the same terms and conditions, for an
additional term of thirty (30) years, provided Lessee is
in full compliance with all of the terms of this lease at
the time notice of intent to renew is given Lessor. Such
notice of intent to renew shall be in writing and mailed to
Lessor at the City Hall, Meridian, Idaho, on or prior to
April 1, 2003.
At the conclusion of such renewal term, Lessee shall
have the further right to renew this lease, on terms and con-
ditions agreeable to each party hereto, for successive addi-
tional terms of ten (10) years each, provided Lessee is in
full compliance with all of the terms of this lease at the
time notice of intent to renew is given Lessor. Such notice
of intent to renew shall be in writing and mailed to Lessor
at the City Hall, Meridian, Idaho, on or prior to six (6)
months prior to the end of any term.
16. GREENS FEES. Lessee agrees that it will not
alter the greens fees charged the public without first con-
sulting the authorized representatives of Lessor, it being
the intent of both parties to the lease that greens fees
for the leased premises shall at all times be competitive
with similar public facilities.
17. BINDING EFFECT. This Agreement of Lease is
binding upon the successors, assigns and subtenants of both
parties.
AGREEMENT OF LEASE - P. 7