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Western States Equipment CZC 05-016
CITY HALL MAYOR (208) 888-4433 -Fax 887-4813 Tammy de Weerd CITY OF ~(~T~ .1, PUBLIC WORKS CITY COUNCIL MEMBERS ~ fit, J BUILDING DEPARTMENT K ith Bi d ~~ ~~~ ] / f y/' ~~ Y (208) 887-2211 -Fax 898-9551 r e ` (/ ` ~ Christine Donnell Shaun Wardle IDAHO f ~, ti ~ LEGAL DEPARTMENT (208) 888-4433 ~ Fax 887-4813 Charles M. Rountree FC ~ ~ eR ~ TREASURt ~~~~ SINCE ', 1903 AMENDED-CERTIFICATE OF ZONING COMPLIANCE* Date: July 19 2005 ori>;inal date Feb 11 2005 Project Name: Western States Equipment Owners: T-7 LLC (Glancey Rockwell Associates, Gene Kellyl Site Address: 400 E. Overland Road Proposed Use: 1200 square foot storal;e building with a centrally located 40 square foot washing buildinl7 Zoning: Comments: Conditions of Approval: Project is subject to all current City of Meridian ordinances. Landscaping The landscape plan prepared by The Land Group, labeled 2.51, dated 2-24-2000, and stamped 2-11-OS "approved" by the Meridian Planning and Zoning Department, is approved as designed and installed through prior Ada County Approval. The landscape plan is not to be altered without prior written approval of the Planning and Zoning Department. No field changes to the landscape plan permitted; prior written approval of all material changes is required. Site Plan: The AMENDED site plan prepared by Glancey Rockwell and Associates, labeled C 1.1 dated 07-13-04, and stamped "approved" on 7-19-04 by the Meridian Planning and Zoning Department, is approved with no changes. The site plan is not to be altered without prior written approval of the Planning and Zoning Department. Irrigation: An underground, pressurized irrigation system must be installed to all landscape areas per the approved specifications and in accordance with MCC 12-13-8 and MCC 9-1-28. Curbin Per MCC 12-13-7-9, all landscape areas adjacent to driveways, parking lots, or other vehicle use areas, must be protected by curbing, wheel stops, or other approved protective devices. Curbing may be cut to allow for storm water runoff. Parkin :All parking stalls shall be 19-feet long by 9-feet wide adjacent to 25-foot wide drive aisles. The 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. The applicant shall be responsible for meeting the requirements of ACHD and ITD as they pertain to this development. Sidewalks: All sidewalks shall be constructed as submitted and in accordance with MCC 12-5-2.K. Sidewalks shall be constructed prior to occupancy. Drainage: Storm water drainage swales shall not have a slope steeper than 3:1, shall be fully vegetated, and shall be designed in compliance with the MCC. Lighting: Lighting shall not cause glare or impact the traveling public or neighboring development. Down-shield all lighting so it does not spill onto adjacent properties. Si na e: No signs are approved with this CZC. All signs require a separate sign permit in compliance with the sign ordinance. Trash Enclosure: Any dumpster(s) must be screened in accordance with MCC 11-12-1.C. 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 and Zoning 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 Amended Site Plan dated 7-13-OS stamped "approved" on 7-19-05, and Landscape Plan, stamped "approved" on 2-11-OS are not to be altered without prior written approval of the Planning and Zoning Department. No significant field changes to the site or landscape plans are permitted; prior written approval of all changes is required. 7"~~-O~ oseph uenther 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. • ~~~~~' CHD ~~~~o S Right-of--Way & Development Department Planning Review Division March 8, 2005 TO: Glancey -Rockwell & Associates 595 S Americana Blvd Boise, ID 83702 SUBJECT : MCZC-05-016 Zoning Application 400 E Overland Rd In response to your request for comment, the Ada County Highway District (ACRD) staff has reviewed the submitted application and site plan for the item referenced above. It has been determined that 'the Right-of-Way and Development Services Department does not have any site specific requirements for you at this time due to the fact that the proposed application: - Is not a change in use and will generate no additional vehicle trips per day (VTD). If the site plan or use should change in the future, ACRD will review the site plan and may require improvements to the transportation system at that time. A traffic impact fee may be assessed by ACRD and will be due prior to the issuance of a building permit or occupancy. Contact ACRD Planning 8 Development Services at 387-6170 for information regarding impact fees. If you have any questions, please feel free to contact me at (208) 387-6171. Sincerely, ~G~I~L^-`- 1~1 Karen Anderson Planner 1, Planning Division Right-of--Way and Development Services cc: Project File, Construction Services, Drainage, Utilities Meridian City T - 7, LLC 400 E Overland Road Meridian, ID 83642 ///~~~~ 4 MAYOR Tammy de Weerd 7~ 'tom' CITY OF RI~1^' _ CITY COUNCIL MEMBERS Ili~i ~ f Keith Bird ~ ~~ /Y f/ l/ Christine Donnell IUAHiO Shaun Wardle ~, ~ Charles M. Rountree yf~,., , ~ SINCE i (19p3 CITY HALL (208) 888-4433 ~ Fax 887-4813 PUBLIC WORKS BUILDING DEPARTMENT (208) 887-2211 ~ Fax 898-9551 LEGAL DEPARTMENT (208) 466-9272 -FAX 466-4405 CERTIFICATE OF ZONING COMPLIANCE* ~®~ Date: February 11 2005 ~~~ Project Name: Western States EcLuipment Owners: T-7 LLC, (Glances Rockwell Associates, Gene Kelly) Site Address: 400 E. Overland Road Proposed Use: 1200 square foot storage buildin;; Zoning: Comments: Conditions of Approval: Project is subject to all current City of Meridian ordinances. Landsca~in~: The landscape plan prepared by The Land Group, labeled 2.51, dated 2-24-2000, and stamped 2-11-OS "approved" by the Meridian Planning and Zoning Department, is approved as designed and installed through prior Ada County Approval. The landscape plan is not to be altered without prior written approval of the Planning and Zoning Department. No field changes to the landscape plan permitted; prior written approval of all material changes is required. Site Plan: The site plan prepared by Glances Rockwell and Associates, labeled C 1.1 dated 06-03-04, and stamped "approved" on 2-11-04 by the Meridian Planning and Zoning Department, is approved with no changes. The site plan is not to be altered without prior written approval of the Planning and Zoning Department. Irrigation: An underground, pressurized irrigation system must be installed to all landscape areas per the approved specifications and in accordance with MCC 12-13-8 and MCC 9-1-28. Curbin Per MCC 12-13-7-9, all landscape areas adjacent to driveways, parking lots, or other vehicle use areas, must be protected by curbing, wheel stops, or other approved protective devices. Curbing may be cut to allow for storm water runoff. Parkin: All parking stalls shall be 19-feet long by 9-feet wide adjacent to 25-foot wide drive aisles. The 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. The applicant shall be responsible for meeting the requirements of ACHD and ITD as they pertain to this development. Sidewalks: All sidewalks shall be constructed as submitted and in accordance with MCC 12-5-2.K. Sidewalks shall be constructed prior to occupancy. ~ i Drainage: Storm water drainage swales shall not have a slope steeper than 3:1, shall be fully vegetated, and shall be designed in compliance with the MCC. Lighting: Lighting shall not cause glare or impact the traveling public or neighboring development. Down-shield all lighting so it does not spill onto adjacent properties. Si~g_e: No signs are approved with this CZC. All signs require a separate sign permit in compliance with the sign ordinance. Trash Enclosure: Any dumpster(s) must be screened in accordance with MCC 11-12-1.C. 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. ACRD 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 and Zoning 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 Plan and Landscape Plan, stamped "approved" on 2-11-OS are not to be altered without prior written approval of the Planning and Zoning Department. No significant field changes to the site or landscape plans are permitted; prior written approval of all changes is required. eph R. Guenther 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. • The City of Meridian Planning & Zoning Department 660 E Watertower Lane, Suite 202 Meridian, Idaho 83642 Subject: Zoning Certificate Application Dear Planner; • The following is the written statement required as part of the Zoning Application Item number 10. We are constructing stormwater retention to replace the existing retention area displaced by the construction of a previously permitted storage building. There are no changes to the existing landscape or irrigation. There is no change to the use of the property. Thank you very much and we look forward to your granting of the Zoning Certificate. Cordially, Pete Rockwell Glancey-Rockwell and Associates. CC File IRRIGATION PERFORMANCE SPECIFICATIONS PER ORDINANCE 12-13-8 NOTE: Submit 3 copies of this completed form with arty application for Certificate of Zoning Compliance (CZC). Project Name: ~~~~ 5" °" ` ~ ~N'~ P Specifications: `~-~~l~~Gv~-~ 1.~ Available Gallons per Minute: Available Water Pressure: Point of Connection (describe and/or submit a site plan): • Primary Connection' Secondary Connection: Landscape Area:. If the irrigation system is hooked fo City water as a primary or secondary water source, submit the square footage of landscape areas to be irrigated.• s.f. 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 tq head spacing or triangular spacing as appropriate. Matched Precinitation Rates Sprinkler heads must have matched precipitation rates within each control valve circuit. Irrigation 7.ones Sprinkler heads irrigating lawn or other high-water-demand areas must be circuited so that they are on a separate zone or zones from those irrigating trees, shrubs; or other reduced- water-demand areas: ~L/erTaX Sprinkler heads must be adjusted to reduce overspray onto impervious surfaces such as sidewalks, driveways, and parking areas. ~'`~-~~(3-0~ Additional Irrigation Notes: Irriga ion R ttt_ red All landscape areas regulated by the City Landscape Ordinance (12-13) shall be served with an automatic underground irrigation system. Additional requirements affecting pressurized irrigation systems can be found in City Ordinance 9-1-28. Trrig_ation Water SoLrce Use of non-potable irrigation 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 %z 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, ~~_~ ~~~~~«~~' , do hereby affirm that any irrigation system installed for the project mentioned above will be designed and installed in compliance with the specifications and notes stated in this form. /~ ~d~~j~~t~ Applicant's Signature Date I{ev. 11;'(11;'"t)1 CITY OF MERIDIAN Planning & Zoning Department 660 E. Watertower Ln., Ste. 202, Meridian, ID 83642 (208)884-5533 Phone / (208)888-6854 Fax C'F.RTTFiC'ATF. (7F 7[1NiNf; ('nMPi iAN('F~{'7~') APPi TC'ATin1`T (Section 11-19-1, Zoning and Development Ordinance) PROJECT NAME: APPLICAN' ADDRESS: PHONE: ~J ~S-~S C~~O ~ ~u.uPWl FAX: 3~~J" I~ I`~ E-MAIL: Cc'~~ @ 1J4 IrOZ.ku~~~~ ~~'( OWNER(S) OF RECORD: ~ ~ ~ ~' l"' e'' ADDRESS: '~ C. !~v [r~-~iVp~ ~~( yUlc~t, t r~ ~ r'1-ilk ~ D $ ~ ~. ~ Z PHONE: SSS`ZZ~7 FAX: ARCHITECT (IF DIFFERENT THAN APPLICANT): ADDRESS: PHONE: FAX: E-MAIL: E-MAIL ADDRESS, GENERAL LOCATION OF SITE: `T C~ C• D~C~~6~7C~C ~d~tX , 1M~-V~tc.Q ~ r~ TOWNSHIP, RANGE, AND SECTION: DESCRIPTION OF USE: Z Q PRESENT ZONE CLASSIFICATION: G~T s~' I, do hereby affirm that I will agree to.pay any additional sewer, water or trash fees or chazges, if any, associated with the use that Uwe have applied for, whether the use be residential, commercial or industrial in nature. Furthermore, I have read the information contained herein and certify that the information is true and correct / / (Applicant's Signature) (Date) Rc;~. 11 %03:~lJJ t ~ ~~ ~ ~~ _ f~ ~ W -.. ~ A ,,; p yp I C; I~ ~ I ins ~+a °°°` ~" ` "" ! ~J ~_ ~-am"ta0~ I d~l~l~~l~u~~ s~an~~ a:~~~~aa I ~ N~131 3M + "~ L I ~~ '~ ~JO.~ I° ~~ ~' w~~ ; Iqe `~ ~ ~e Ir. !~i I Ib 4 d ~~ , § ~ ~ $L H _ W A C'1 F J 3 3 ~ ~ ~xp F L zaW '~ _a'~: I ~~€ r7~ F L1 a ~ Y ~~ a F d r ::.i II Oo B G °~I i~ {. S a ~ g~~ ~ ~ ~ i ,.I I B~ ~ a o a ~ ~ I I o ` a 4 ~ '^F ~ o Ie ~d_ ". , ^~ r ; .r4S, a's IyCR. i r ^~~ I° ~~3 ,,~ i ~ 3 r~~Om[ i T ~, T f F I ~'~ i al ~ ~~ ~ a z ~ ~ ~ ~ D 1 ~ O I m D t v ~ F a l i ~ 1 ; ~ i tl F ~ y y y J ` Glancey• Rockwell &z Associates tiE4v SHEDS: ~ ; ~ ~; ~ ~ ' a ~ Arcf»tectu:e. rlanning s WESTE2N STATES EQUIPMENT CO. ~- ° $ ` u~~ F, e) a auc s ~ s9, s n ~ • $ £ ? , W ..c ~~:c o~ s i00 EAST OVERLAND R0,4D ~ „_, ~ e ' = ro>;i.is;.oi6a (.~; s+~1i19 r.~ ra; vf:~a~4v MERIDUN, ADA COUNTY, IDAHO # g 51aMN .ork.dt~filrmitx.:ia (state) A,1?k'~D.A,V~' a)~ LEGA,L INTEREST STATE OF IDAHO ) CQi,JNTY QF ADA ) (name} (city) I. r: C?C ~ C~ v [."~~ 11.E (address) being first duly sworn upon ' oath, depose and say: That I am the record owner of the property described on the attached, and I grant my pennission to= (~,~.~~~ (address) tq submit the accompanying application pertaining to that property. 2. ~ agKee to indemnity, defend and hold the City of Meridian and it's employec;s harmless from ru~y claim or liability r~~sultin~ from any dispute as to tkte•statetxtents conEaincd ltercin or as to the o'w,neirshlp of the property, which is the subject of the application. ~-. Dated this ~ J day of . , 200 ~ ~ ~ .. Signature) SUBSCRIBED AND SWO1tN to beto~e me the day and year first above written. '~~~~~ /F I S ~jF~ ~~i~~ . a ~ /~ '~-~ t`~,~4 ,t ~.1tY ~ No Public fo - _ - Q O esiding a :.a : Z •~ ~ $y~G . ,Z, My Commission Expires: ' ~ 0 ~ FU ~c . ~'••.._TATE ~_..••'~ ~. i; "d 6880L8~ 11~M~1~02•i/l.~~Nb'1~ WOad Wd6b' it 50Z-6 l- t •• •• WHEN RECORDED MAIL TO: David S. Jensen Moffatt, Thomas, Barrett, Rock & Fields, Chtd. P.O. Boa 829 Boise, Idaho 83701 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY DEED OF TRUST, SECURITY AGREEMENT, AND FIXTURE FILING THIS DEED OF TRUST is dated as of November 1, 2002, among T-7, LLC, an Idaho limited liability company ("Borrower"); WELLS FARGO BANK, NATIONAL ASSOCIATION, whose address is Southern Idaho RCBO, 119 North 9th Street, P.O. Box 7069, Boise, ID 83730 ("Bank"); and PIONEER TITLE COMPANY OF ADA COUNTY, whose address is 821 Nest State Street, Boise, ID 83702 ("Trustee"). 1. Conveyance and Grant. For valuable consideration, Borrower irrevocably grants, bargains, sells and conveys in trust, with power of sale, to Trustee for the benefit of Bank as beneficiary, all of Borrower's right, title, and interest in and to the real property, located in Ada County, Idaho, more particularly described in the attached Exhibit A, together with all 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 Propert}~'). The Real Property tax identification number is 03-S118346790. The Real Property either is not more than forty (40) acres in area or is located within an incorporated city or village as of the date of this Deed of Trust. Borrower also presently assigns to Bank all of Borrower's right, title, and interest in and to all present and future leases of the Property (defined below) and all Rents (defined below) from the Property. In addition, Borrower grants to Bank a security interest in the Personal Property (defined below) 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 (A) payment of the Indebtedness and DEED OF TRUST - 1 103002 ]40Q BOI_MT1:418824.1 (B) performance of each agreement and obligation of Borrower under the Note, the Swap Agreement, the Related Documents, and this Deed of Trust. 2. 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: 2.1 Bank. The word "Bank" means Wells Fargo Bank, National Association, and its successors and assigns. 2.2 Borrower. The word "Borrower" means T-7, LLC, an Idaho limited liability company. 2.3 Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Borrower, Bank, and Trustee, and~includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents. 2.4 Default. The word "Default" means the Default set forth in this Deed of Trust in the section titled "Default". 2.5 Event of Default. The words "Event of Default" mean individually, collectively, and interchangeably any of the events of default set forth in this Deed of Trust in the events of default section of this Deed of Trust. 2.6 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. 2.7 Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note, the Swap Agreement, or the Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the such documents and any amounts expended or advanced by Bank to discharge Borrower's obligations or expenses incurred by Trustee or Bank to enforce Borrower's obligations under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. 2.8 Note. The word "Note" means the promissory note dated November 1, 2002, in the original principal amount of $1,431,863 from Borrower to Bank, together. with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note. The interest rate under the Note is a variable rate. DEED OF TRUST - 2 103002 1~~0 B01 MT1:418824.1 •• •• 2.9 Personal Property. The words "Personal Property" mean all of Borrower's personal property of every kind and nature, whether now owned or hereafter acquired or arising, that is located on, appurtenant to, used in connection with, arising from, or related to the Real Property or the improvements thereto or the Real Property's use, occupancy, construction, management, and operation, including, without limitation, all accounts, chattel paper, deposit accounts, documents, general intangibles (including, without limitation, patents, patent applications, trademarks, trademark applications, trade names, copyrights, copyright applications, software, service marks, and goodwill), goods (including, without limitation, inventory, equipment, and fixtures), instruments, investment property, letter of credit rights, letters of credit, money, rents, revenues, issues, profits, water, water rights, water stock, and oil, gas, or other minerals before extraction, along with all replacements, products, and proceeds of, and accessories, parts, additions, substitutions, improvements, and accessions to, any of the foregoing. 2.10 Property. The word "Property" means collectively the Real Property and the Personal Property. 2.11 Real Property. The words "Real Property" mean the real property, interests and rights described in the attached Exhibit A, and as further described in this Deed of Trust. 2.12 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. 2.13 Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. 2.14 Swap Agreement. The words "Swap Agreement" mean the Interest Rate Swap Agreement between Borrower and Bank, dated September 24, 2002. 2.15 Trustee. The word "Trustee" means Pioneer Title Company of Ada County, whose address is 821 West State Street, Boise, Idaho 83702, and any substitute or successor trustees. 3. Payment and Performance. Except as otherwise provided in this Deed of Trust; Borrower shall pay to Bank all amounts secured by this Deed of Trust as they become due, and shall strictly and in a timely manner perform all of Borrower's obligations under the Note, the Swap Agreement, this Deed of Trust, and the Related Documents. DEED OF TRUST - 3 1~3~~2 140 801 MT1:418824.1 ~ ~ ~ ~ 4. Possession and Maintenance of the Property. Borrower agrees that Borrower's possession and use of the Property shall be governed by the following provisions: 4.1 Possession and Use. Until the occurrence of an Event of Default, Borrower may (1) remain in possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. 4.2 Duty to Maintain. Borrower shall maintain the Property in tenantable condition and promptly perform al] repairs, replacements, and maintenance necessary to preserve its value. 4.3 Nuisance, Waste. Borrower 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, Borrower will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Bank's prior written consent. 4.4 Removal of Improvements. Borrower shall not demolish or remove any Improvements from the Real Property without Bank's prior written consent. As a condition to the removal of any Improvements, Bank may require Borrower to make arrangements satisfactory to Bank to replace such Improvements with Improvements of at least equal value. 4.5 Bank's Right to Enter. Bank and Bank's agents and representatives may enter upon the Real Property at all reasonable times to attend to Bank's interests and to inspect the Real Property for purposes ofBorrower's compliance with the terms and conditions of this Deed of Trust. 4.6 Compliance with Governmental Requirements. Borrower shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Borrower may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Borrower has notified Bank in writing prior to doing so and so long as, in Bank's sole opinion, Bank's interests in the Property are not jeopardized. Bank may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Bank, to protect Bank's interest. 4.7 Duty to Protect. Borrower shall not abandon the Property nor leave it unattended. Borrower shall do all 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. DEED OF TRUST - 4 l03~02 140o BOI MT1:418824.1 •~ •• 5. Due on Sale -Consent by Bank. Bank may, at Bank's option, declare immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without Bank's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Reai Property. Transfer also includes any change in ownership of more than twenty-five percent (25%) of the membership interests of Borrower. However, this option shall not be exercised by Bank if such exercise is prohibited by federal law or by Idaho law. 6. Taxes and Liens. 6.1 Payment. Borrower shall pay when due (and in all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), 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. Borrower shall maintain the Property free of all liens having priority over or equal to the interest of Bank under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of Trust. 6.2 Right to Contest. Borrower may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Bank's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Borrower shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Borrower has notice of the filing, secure the discharge of the lien, or if requested by Bank, deposit with Bank cash or a sufficient corporate surety bond or other security satisfactory to Bank 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, Borrower shall defend itself and Bank and shall satisfy any adverse judgment before enforcement against the Property. Borrower shall name Bank as an additional obligee under any surety bond furnished in the contest proceedings. 6.3 Evidence of Payment. Borrower shall upon demand furnish to Bank satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Bank at any time a written statement of the taxes and assessments against the Property. 6.4 Notice of Construction. Borrower shall notify Bank at least fifteen (15) 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 DEED OF TRUST - 5 103002 1400 BOI MT1:418824.1 •• •• on account of the work, services, or materials and the cost exceeds $2,000.00. Borrower will upon request of Bank furnish to Bank advance assurances satisfactory to Bank that Borrower can and will pay the cost of such improvements. 7. Property Damage Insurance. The following provisions relating to insuring the Property are a part of this Deed of Trust. 7.1 Maintenance of Insurance. Borrower shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a fair value 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 Bank. Borrower shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Bank may request with Trustee and Bank being named as additional insureds in such liability insurance policies. Additionally, Borrower shall maintain such other insurance, including but not limited to hazard, business interruption,~and boiler insurance, as~Bank may reasonably require. Policies shall be written in form, amounts, coverages and basis reasonably acceptable to Bank and issued by a company or companies reasonably acceptable to -Bank. All policies shall provide that the policies shall not be invalidated by any waiver of the right of subrogation by any insured and shall provide that the carrier shall have no right to be subrogated to Bank. Borrower, upon request of Bank, will deliver to Bank from time to time the policies or certificates of insurance in form satisfactory to Bank, including- stipulations that coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Bank. Each insurance policy also shall include an endorsement providing that coverage in favor of Bank will not be impaired in any way by any act, omission or default of Borrower 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, Borrower agrees to obtain and maintain Federal Flood Insurance, if available, within 45 days after notice is given by Bank 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 Bank, and to maintain such insurance for the term of the loan. 7.2 Application of Proceeds. Borrower shall promptly notify Bank of any loss or damage to the Property if the estimated cost of repair or replacement exceeds $5,000.00.. Bank may make proof of loss if Borrower fails to do so within fifteen (15) days of the casualty. Whether or not Bank's security is impaired, Bank may, at Bank'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 Bank elects to apply the proceeds to restoration and repair, Borrower shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Bank. Bank shall, upon satisfactory proof of such expenditure, pay or reimburse Borrower from the proceeds for the reasonable cost of repair or restoration if Borrower is not in default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Bank DEED OF TRUST - 6 1~3~02 14~o BOI MT1:478824.1 .. ~ ~ ~ ~ has not committed to the repair or restoration of the Property shall be used first to ,pay any amount owing to Bank 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 Bank holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Borrower as Borrower's interests may appear. 7.3 Uneapir~ed Insurance at Sale. Any unexpired insurance shall inure to the benefit of, and pass to, the purchaser of the Property covered by this Deed of Trust at any trustee's sale or other sale held under the provisions of this Deed of Trust, or at any foreclosure sale of such Property. 7.4 Borrower's Report on Insurance. Upon request of Bank, however not more than once a year, Borrower shall furnish to Bank a report on each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration date of the policy. Borrower shall, upon request of Bank, have an independent appraiser satisfactory to Bank determine the cash value replacement cost of the Property. 8. Bank's Expenditures. If any action or proceeding is commenced that would materially affect Bank's interest in the Property or if Borrower fails to comply with any provision of this Deed of Trust or any Related Documents, including but not limited to Borrower's failure to discharge or pay when due any amounts Borrower is required to discharge or pay under this Deed of Trust or any Related Documents, Bank on Borrower's behalf may (but shall not be obligated to) take any action that Bank deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims,eat 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 Bank for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Bank to the date of repayment by Borrower. All such expenses will become a part of the Indebtedness and, at Bank's option, will (A) 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 (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) 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 Bank may be entitled upon Default. 9. Warranty; Defense of Title. 9.1 Title. Borrower warrants that: (a) Borrower 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 any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Bank in connection DEED OF TRUST - 7 103002 1400 BOI MT1:418824.1 • ~ i • with this Deed of Trust, and (b) Borrower has the full right, power, and authority to execute and deliver this Deed of Trust to Bank. 9.2 Defense of Title. Subject to the exception in the paragraph above, Borrower 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 Borrower's title or the interest of Trustee or Bank under this Deed of Trust, Borrower shall defend the action at Borrower's expense. Bon ower may be the nominal party in such proceeding, but Bank shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Bank's own choice, and Borrower will deliver, or cause to be delivered, to Bank such instruments as Bank may request from time to time to permit such participation. 9.3 Compliance With Laws. Borrower warrants that the Property and Borrower's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. 9.4 Survival of Representations and Warranties. All representations, warranties, and agreements made by Borrower 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. 10. Condemnation. 10.1 Notice of Proceedings. Eorrower shall immediately notify Bank in writing should all or any part of the Property become subject to any condemnation or expropriation proceedings or other similar proceedings, including without limitation, any ,~ condemnation, confiscation, eminent domain, inverse condemnation or temporary requisition or taking of the mortgaged Property, or any part or parts of the Property. Borrower further agrees to promptly take such steps as maybe necessary and proper within Bank's sole judgment and at Borrower's expense, to defend any such condemnation or expropriation proceedings and obtain the proceeds derived from such proceedings. Borrower shall not agree to any settlement or compromise or any condemnation or expropriation claim without Bank's prior written consent. 10.2 Bank's Participation. Bank may, at Bank's sole option, elect to participate in any such condemnation or expropriation proceedings and be represented by counsel of Bank's choice. Borrower agrees to provide Bank with such documentation as Bank may request to permit Bank to so participate and to reimburse Bank for Bank's costs associated with Bank's participation, including Bank's reasonable attorneys' fees. 10.3 Conduct of Proceedings. IfBorrower fails to defend any such condemnation or expropriation proceedings to Bank's satisfaction, Bank may undertake the defense of such a proceeding for and on behalf of Borrower. To this end, Borrower irrevocably appoints Bank as Borrower's agent and attorney-in-fact, such agency being coupled with an DEED OF TRUST - 8 103002 1400 BOI ti1T1:418824.1 .. ~ ~ ~ ~ f interest, to bring, defend, adjudicate, settle, or otherwise compromise such condemnation or expropriation claims; it being understood, however, that, unless one or more Events of Default (other than the condemnation or expropriation of the Property) then exists under this Deed of Trust, Bank will not agree to any final settlement or compromise of any such condemnation or expropriation claim without Borrower's prior approval, which approval shall not be unreasonably withheld. 10.4 Application of Net Proceeds. Bank shall have the right to receive all proceeds derived or to be derived from the condemnation, expropriation, confiscation, eminent domain, inverse condemnation, or any permanent or temporary requisition or taking of the Property, or any part or parts of the Property ("condemnation proceeds"). In the event that Borrower should receive any such condemnation proceeds, Borrower agrees to immediately turn over and to pay such proceeds to Bank. All condemnation proceeds, which are received by, or which are payable to either Borrower or Bank, shall be .applied, at Bank's sole option and discretion, and in such manner as Bank may determine (after payment of all reasonable costs, expenses and attorneys' fees necessarily paid or incurred by Borrower and/or Bank), for the purpose of: (a) replacing or restoring the condemned, expropriated, confiscated, or taken Property; or (b) reducing the then outstanding balance of the Indebtedness, together with interest thereon, with such payments being applied in the manner provided in this Deed of Trust. Bank's receipt of such condemnation proceeds and the application of such proceeds as provided in this Deed of Trust shall not affect the lien of this Deed of Trust. 11. Imposition of Tazes, Fees and Charges by Governmental Authorities. 11.1 Current Taxes, Fees and Charges. Borrower shall reimburse Bank 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. 11.2 Tazes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (2) 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 Bank 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. 11.3 Subsequent Tazes. 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 Bank may exercise any or al] of its available remedies for an Event of Default as provided below unless Borrower either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Bank cash or a sufficient corporate surety bond or other security satisfactory to Bank. DEED OF TRUST - 9 103002 1400 BOI_MT1:418824.1 ~ ~ ~ ~ 12. Security Agreement; Financing Statements. 12.1 Security Agreement. This instrument shall constitute a Security Agreement with respect to the Personal Property, and Bank shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Upon default, Borrower shall not remove, sever or detach the Personal Property from the Property. Upon default, Borrower shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Borrower and Bank and make it available to Bank within three (3) days after receipt of written demand from Bank to the extent permitted by applicable law. 12.2 Financing Statements. Upon request by Bank, Borrower shall execute financing statements and take whatever other action is requested by Bank to perfect and continue Bank's security interest in the Rents and Personal Property. Borrower shall reimburse Bank for all expenses incurred in perfecting or continuing this security interest. This Deed of Trust is intended to serve as a fixture filing pursuant to the terms of the Idaho Uniform Commercial Code. 12.3 Addresses. The mailing addresses of Borrower (debtor) and Bank (secured party) from which information concerting the security interest granted by this Deed of Trust may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Deed of Trust. The Borrower organizational ID number is W20842. 13. Further Assurances; Attorney-in-Fact. 13.1 Further Assurances. At any time, and from time to time, upon request of Bank, Borrower will make, execute and deliver, or will cause to be made, executed or delivered, to Bank or to Bank's designee, and when requested by Bank, cause to be filed, recorded, refiled, or rerecorded, as the case maybe, at such times and in such offices and places as Bank 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 Bank, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's obligations under the Note, the Swap Agreement, this Deed of Trust, and the Related Documents, and (2) the liens and security interests created by this Deed of Trust as first and prior liens on the Property, whether now owned or hereafter acquired by Borrower. Unless prohibited by law or Bank agrees to the contrary in writing, Borrower shall reimburse Bank for all costs and expenses incurred in connection with the matters referred to in this paragraph. 13.2 Attorney-in-Fact. If Borrower fails to do any of the things referred to in the preceding paragraph, Bank may do so for and in the name of Borrower and at Borrower's expense. For such purposes, Borrower irrevocably appoints Bank as Borrower's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all DEED OF TRUST - 10 103002 140 BOI MT1:418824.1 .. ~ ~ ~ ~ other things as maybe necessary or desirable, in Bank's sole opinion, to accomplish the matters referred to in the preceding paragraph. 14. Full Performance. If Borrower pays all the Indebtedness when due, and otherwise performs all the obligations imposed upon Borrower under this Deed of Trust, Bank shall execute and deliver to Trustee a request for full reconveyance and shall execute and deliver to Borrower suitable statements of termination of any financing statement on file evidencing Bank's security interest in the Rents and the Personal Property. Any reconveyance fee required by law shall be paid by Borrower, if permitted by applicable law. 15. .Default. 15.1 Events of Default. Each of the following, at Bank's option, shall constitute an Event of Default under this Deed of Trust: 15.1.1 Payment Default. Borrower fails to make any payment when due under the Indebtedness. 15.1.2 Other Defaults. Borrower 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 onto perform any term, obligation, covenant or condition contained in any other agreement between Bank and Borrower. 15.1.3 Compliance Default. Failure to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note, the Swap Agreement, or in any of the Related Documents. 15.1.4 Default on Other Payments. Failure of Borrower 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. 15.1.5 Environmental Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in any environmental agreement executed in connection with the Property. 15.1.6 Default in Favor of Third Parties. Should Borrower default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay the Indebtedness or perform their respective obligations under this Deed of Trust or any of the Related Documents. 15.1.7 False Statements. Any warranty, representation or statement made or furnished to Bank by Borrower or on Borrower's behalf, or made by any DEED OF TRUST - 11 103002 1400 BOI MT1:418824.1 ~ ~ ~ ~ guarantor, endorser, surety, or accommodation party, under this Deed of Trust or the Related Documents in connection with the obtaining of the Indebtedness evidenced by the Note and the Swap Agreement or any security document directly or indirectly securing repayment of the Note or Swap Agreement is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. 15.1.8 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. 15.1.9 Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower'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 laws by or against Borrower. 15.1.10 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 by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Bank. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Bank written notice of the creditor or forfeiture proceeding and deposits with Bank monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Bank, in its sole discretion, as being an adequate reserve or bond for the dispute. 15.1.11 Execution; Attachment. Any execution or attachment is levied against the Property, and such execution or attachment is not set aside, discharged or stayed within thirty (30) days after the same is levied. 15.1.12 Change in Zoning or Public Restriction. Any change in any zoning ordinance or regulation or any other public restriction is enacted, adopted or implemented, that limits or defines the uses which may be made of the Property such that the present or intended use of the Property, as specified in the Related Documents, would be in violation of such zoning ordinance or regulation or public restriction, as changed. 15.1.13 Default Under Other Lien Documents. A default occurs under any other mortgage, deed of trust or security agreement covering all or any portion of the Property. 15.1.14 Judgment. Unless adequately covered by insurance in the opinion of Bank, the entry of a final judgment for the payment of money involving more than DEED OF TRUST -12 103002 1400 BOI MT1:418824.1 ~ ~ ~ ~ ten thousand dollars ($10,000.00) against Borrower and the failure by Borrower to discharge the same, or cause it to be discharged, or bonded off to Bank's satisfaction, within thirty (30) days from the date of the order, decree or process under which or pursuant to which such judgment was entered. 15.1.15 Breach of Other Agreement. Any breach by Borrower under the terms of any other agreement between Borrower and Bank that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Borrower to Bank, whether existing now or later. 15.2 Right to Cure. If an Event of Default is curable and if Borrower 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 maybe cured (and no Event of Default will have occurred) if Borrower, after Bank sends written notice demanding cure of such failure: (a) cures the failure within fifteen (15) 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 seasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. 16. Rights and Remedies on Default. If an Event of Default occurs under this Deed of Trust, at any time thereafter, Trustee or Bank may exercise any one or more of the following rights and remedies: 16.1 Notice of Default. In the Event of Default Bank shall execute or cause the Trustee to execute a written notice of such default and of Bank's election to cause the Property to be sold to satisfy the Indebtedness, and shall cause such notice to be recorded in the office of the recorder of each county wherein the Real Property, or any part thereof, is situated. 16.2 Election of Remedies. Election by Bank 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 Borrower under this Deed of Trust, after Borrower's failure to perform, shall not affect Bank's right to declare a default and exercise its remedies. 16.3 Accelerate Indebtedness. Bank shall have the right at its option without notice to Borrower to declare the entire Indebtedness immediately due and payable, including any prepayment penalty which Borrower would be required to pay. 16.4 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 Bank shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. DEED OF TRUST - 13 103002 1400 B01 MT1:41882=.1 ~ + ~ ~ .. 16.5 UCC Remedies. With respect to all or any part of the Personal Property, Bank shall have all the rights and remedies of a secured party under the Uniform Commercial Code. 16.6 Collect Rents. Bank shall have the right, without notice to Borrower 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 Bank's costs, against the Indebtedness. In furtherance of this right, Bank may require any tenant or other user of the Property to make payments of rent or use fees directly to Bank. If the Rents are collected by Bank, then Borrower irrevocably designates Bank as Borrower's attorney-in-fact to endorse instruments received in payment thereof in the name of Borrower and to negotiate the same and collect the proceeds. Payments by tenants or other users to Bank in response to Bank's demand shall satisfy the obligations for which the payments are made, whether or not any proper~grounds for the demand existed. Bank may exercise its rights under this subparagraph either in .person, by agent, or through a receiver. . 16.7 Appoint Receiver. Bank 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 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. Bank's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Bank shall not disqualify a person from serving as a receiver. 16.8 Tenancy at Sufferance. If Borrower remains in possession of the Property after the Property is sold as provided above or Bank otherwise becomes entitled to possession of the Property upon default of Borrower, Borrower shall become a tenant at sufferance of Bank or the purchaser of the Property and shall, at Bank's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Bank. 16.9 Other Remedies. Trustee or Bank shall have any other right or remedy provided in this Deed of Trust or the Note or by law. 16.10 Notice of Sale. Bank shall give Borrower 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 (10) days before the time of the sale or disposition. Any sale of Personal Property maybe made in conjunction with any sale of the Real Property. 16.11 Sale of the Property. To the extent permitted by applicable law, Borrower waives any and all rights to have the Property marshalled. In exercising its rights and DEED OF TRUST - 14 103002 1400 BOI_MT 1:418824.1 ~ ~ ~ ~ remedies, the Trustee or Bank shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Bank 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 Borrower, 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 shall 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. 16.12 Attorneys' Fees; Expenses. If Bank institutes any suit or action to enforce any of the terms of this Deed of Trust, Bank 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 Bank incurs that in Bank'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, Bank's reasonable attorneys' fees and Bank's legal expenses whether or not there is a lawsuit, including reasona~ie 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 fees, title insurance, and fees for the Trustee, to the extent permitted by applicable law. Borrower also will pay any court costs, in addition to all other sums provided by law. 16.13 Rights of Trustee. Trustee shall have all of the rights and duties of Bank as set forth in this section. 17. Powers and Obligations of Trustee. The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust: 17.1 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 Bank and Borrower: (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; (b) join in granting any easement or creating any restriction on the Real Property; and (c) join in any DEED OF TRUST - 15 103002 1400 B01 MT1:418824.1 • ~ • • subordination or other agreement affecting this Deed of Trust or the interest of Bank under this Deed of Trust. 17.2 Obligations 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 Borrower, Bank, or Trustee shall be a party, unless the action or proceeding is brought by Trustee. 17.3 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 Bank shall have the right to foreclose by judicial foreclosure, in either case in accordance with and to the full extent provided by applicable law. ' 17.4 Successor Trustee. Bank, at Bank'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 Bank 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 Bank, Trustee, and Borrower, where this Deed of Trust is recorded, and the name and address of the successor trustee, and the instrument shall be executed and acknowledged by Bank 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. 18. 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 (unless 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 Bank'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, Borrower agrees to keep Bank informed at all times of Borrower's current address. Unless otherwise provided or required by law, if there is more than one Borrower, any notice given by Bank to any Borrower is deemed to be notice given to all Borrowers. 19. Representations and Warranties. The Borrower represents and warrants to Bank as follows: DEED OF TRUST - 16 103002 1400 801 MTt:418824.1 • • 19.1 Borrower has good and marketable title to the Property, free and clear of all liens or encumbrances other than those to which Bank has specifically consented. 19.2 No actions, suits, investigations, litigation, bankruptcy, reorganization or other proceedings- are pending at law or in equity or before any federal, state, temtorial, municipal or other government department, commission, board, bureau, agency, courts or instrumentality, or to the best of its knowledge, are threatened, against or affecting Borrower or any owner thereof, or the operations of the Property (i) that would, as of the date hereof, affect the validity or priority of the lien of this Deed. of Trust, (ii) that affect the ability of Borrower to perform its obligations pursuant to and as contemplated by the terms and provisions of the Related Documents, or (iii) that could materially and adversely affect the operations or financial condition of Borrower or any owner of Borrower. Neither Borrower not any owners thereof have ever been adjudicated as bankrupt, have filed or have filed against them, any petitions in bankruptcy or have otherwise taken advantage of any bankruptcy, insolvency or other readjustment of debt laws. 19.3 The execution, delivery and performance of the Note, the Swap Agreement, and the Related Documents will not constitute a breach or default under any other agreement to which Borrower is a party or may be bound or affected, or a violation of any law or court order which may affect the Property, any part thereof any interest therein, or the use thereof. 19.4 Borrower is not in violation of or in default with respect to any term or provision of any other loan commitments, mortgage, deed of trust, indenture, contract, or instrument applicable to Borrower or the Property or by which it is bound or with respect to any order, writ, injunction, decree or demand of any court or any governmental agency or authority. 19.5 Borrower has not entered into any leases nor are there any unrecorded leases or other arrangements for occupancy of space within the Property other than the lease with Western States Equipment Company. 19.6 No condemnation of any portion of the Property has commenced or, to the best of Borrower's knowledge, is contemplated by any govemmental authority. 19.7 All factual information set forth in the Note, the Swap Ageement, and the Related Documents and their exhibits, all financial statements, operating statements, leases and rent rolls previously furnished by or on behalf of Borrower to Bank in connection with the Loan and all other submissions referred to herein or required by the Related Documents are true, complete and correct in all material respects as of the date indicated thereon, are not misleading in any material respect and do not omit any information required to prevent such statements, loan submissions or materials from being materially misleading under the circumstances. DEED OF TRUST - 17 103002 1400 BOI MT1:418824.1 • • • • 19.8 No material adverse change in the operations of the Property or in the financial condition of Borrower has occurred since the date of preparation of the most recent financial statements and operating statements delivered to Bank. 19.9 The Property is stnicturally sound and the operation of the Property complies with all applicable zoning, environmental protection or control codes and fire, electrical and building codes, rules and regulations. There is no license, approval or permit, necessary for either the lawful operation of the Property or the lawful occupancy thereof, including, without limitation, utility, building, zoning, subdivision control, land and water use, environmental protection and flood hazard permits, which has not been obtained. 19.10 Borrower is not in default under any lease of the Property, and all conditions precedent to any tenant's obligation to pay rent have been satisfied, and no tenant lease contains any option to purchase any interest in the Property. 19.11 There are no unrecorded contracts to purchase the Property or any interest therein. 19.12 The Property consists of a separate tax lot or lots assessed separately and apart from any other property owned by Borrower or any other owner. 19.13 The execution, delivery, and performance by the Borrower of this Deed of Trust; the Note, the Swap Agreement, and the Related Documents has been duly authorized by all necessary action. 20. Miscellaneous Provisions. 20.1 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. 20.2 Annual Reports. ' ,Borrower shall furnish to Bank, upon request, a certified statement of net ~ /~ operating income received from the Property during Borrower's previous fiscal year in such form ~ and detail as Bank shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. 20.3 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. DEED OF TRUST -18 1~3~02 140 B01 MT7:418824.1 •• •• 20.4 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 Bank in any capacity, without the written consent of Bank. 20.5 Governing Law. This Deed of Trust will be governed by, construed and enforced in accordance with federal law and the laws of the State of Idaho. This Deed of Trust has been accepted by Bank in the State of Idaho. 20.6 Choice of Venue. If there is a lawsuit, Borrower agrees upon Bank's request to submit to the jurisdiction of the courts of Ada County, State of Idaho. 20.7 No Waiver by Bank. Bank shall not be deemed to have waived any rights under this Deed of Trust unless such waiver is given in writing and signed by Bank. No delay or omission on the part of Bank in exercising any right shall operate as a waiver of such right or any other right. A waiver by Bank of a provision of this Deed of Trust shall not prejudice or constitute a waiver of Bank's right otherwise to demand strict compliance with that provision or any other provision of this Deed of Trust. No prior waiver by Bank, nor any course of dealing between Bank and Borrower, shall constitute a waiver of any of Bank's rights or of any of Borrower's obligations as to any future transactions. Whenever the consent ofBank is required under this Deed of Trust, the granting of such consent by Bank in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Bank. 20.8 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. 20.9 Non-Liability of Bank. The relationship between Borrower and Bank created by this Deed of Trust is strictly a debtor and creditor relationship and not fiduciary in nature, nor is the relationship to be construed as creating any partnership or joint venture between Bank and Borrower. Borrower is exercising Borrower's own judgement with respect to Borrower's business. All information supplied to Bank is for Bank's protection only and no other party is entitled to rely on such information. There is no duty for Bank to review, inspect, supervise or inform Borrower of any matter with respect to Borrower's business. Bank and Borrower intend that Bank may reasonably rely on all information supplied by Borrower to Bank, together with all representations and warranties given by Borrower to Bank, without investigation or confirmation by Bank and that any investigation or failure to investigate will not diminish Bank's right to so rely. DEED OF TRUST - 19 103002 1400 BOI MT1:418824.1 • • ~ • 20.10 Sole Discretion of Bank. Whenever Bank's consent or approval is required under this Deed of Trust, the decision as to whether or not to consent or approve shall be in the sole and exclusive discretion of Bank and Bank's decision shall be final and conclusive. 20.11 Successors and Assigns. Subject to any limitations stated in this Deed of Trust on transfer of Borrower'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 Borrower, Bank, without notice to Borrower, may deal with Borrower's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasing Borrower from the obligations of this Deed of Trust or liability under the Indebtedness. 20.12 Time is of the Essence. Time is of the essence in the performance of this Deed of Trust. [Signature Page Follows] DEED OF TRUST - 20 103002 1400 BOI MT1:418824.1 ~ ~ ~• BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND BORROWER AGREES TO ITS TERMS. BORROWER: STATE OF IDAHO ) ss. County of Ada ) T-7, LLC .~~ , ~' By: T. E. Tertelin anager By: . Terteling, M n ger On this ,~ day of G e~' 2002, before me ~.J~n~ L . ,~ ~~~ personally appeared T. E. TERTELING and A. J. TERTELING known or identified to me (or proved to me on the oath of ) to be the Managers of T-7, LLC, the limited liability company that executed the instrument or the persons who executed the instrument on behalf of said limited liability company, and acknowledged to me that such company executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above writteta'J ~; ~^~ ;•' ~6vao f~ ~~'~~ • wAe, pp1~ O C./ i ©, 1~ ~~ Owl • ~~i • ~P :~o G S °~~~ 8~ I C~ fe ~ ~~ . ID A~fl .~yo ~~ ,~.x:.~z DEED OF TRUST - 21 103002 1400 /~/~~/ \~ W ~/ (/ 1 Y PUBIC FO ~~ ~ -sidi gat __ ~2~, y C mmission Expires ~3-/7- ZOOS BOI MTS:318824.1 ~ * • • EX)=TYBIT A That certain parcel of property located in Ada County, Idaho, more particularly descc7l~ed as follows: Beginning at the Southwest corner of Section 18, To~emship 3 North, Range 1 East, Boise Meridian, a brass cap at the intersection of Overland and Meridian Road, Thence North 00 degrees 44'58" East a distance of 35.0 feet to a point; Thence North 89 decrees 43'32" East a distance of 1759.15 feet along the Noah side of Overland Road right of way to a steel pin being the Southeast corner of the property, conveyed by Warranty Deed recorded under Instrument No_ 8010460, and which is the real point of beginning. Thence North 00 degrees 44'58" East a distance of 1050.55 feet to a brass cap, in a concrete post, Whence North 89 degrees 16'53" East a distance of 478.95 feet along the South side of the right of way of Interstate Highway No. 84 to a brass cap in a concrete post, Thence South 72 degrees 52'25" East a distance of 41.95 feet along the South side of the right of way of Interstate Highway 84 to a brass cap in a concrete post, Thence South 89 degrees 34'2Z" East s distance of 100.00 feet to a steel pin, Thence North 68 degrees 37'33" East a dist once of 53.85 feet to a steel pin, Thence South 89 degl-ees 34'22" East a distance of 10.50 feet to a steel pin, Thenee South 00 degrees 27'58" Nest a distance of 1059.67 feeC along the centerline of said Section 18 to a brass cap in a concrete post on the North boundary of the right of~way of Overland Road, Thence South 89 degrees 43'32" West a distance of G84.90 feat alone the North boundary of the right of way of Overland Road, to the real point ofbeginnin~_