concurs in Part VI(A).
VII
PUNITIVE DAMAGES
The trial court submitted the issue of punitive damages to the jury, which found no punitive damages in favor of Bliss Valley, the Erkins, and the Walkers, but assessed punitive damages in various amounts, ranging from $4,000 to $34,000, in favor of the limited partners-guarantors, for a total punitive damage award of $288,-000. Because we have reversed the award ccompensatory damages for the bad faith tort and breach of fiduciary duty causes of action, the award of punitive damages must likewise be reversed. Yacht Club Sales & Service, Inc. v. First National Bank of North Idaho, 101 Idaho 852, 864, 623 P.2d 464, 476 (1980) (“The judgment in this action awarding compensatory damages must be reversed, and thus the judgment awarding punitive damages must likewise be reversed for further proceedings.”). As we have noted in Parts III and IV above, a major portion of the evidence at this trial related to the bad faith tort and breach of fiduciary obligation claims, both of which were erroneously submitted to the jury. On retrial, the evidence may well be different, and the trial court will need to independently evaluate the evidence submitted at retrial to determine whether or not the evidence is sufficient to meet the standard required in Cheney v. Palos Verdes, 104 Idaho 897, 665 P.2d 661 (1983). See also Garnett v. Transamerica Ins. Services, 118 Idaho 769, 800 P.2d 656 (1990).
JOHNSON and BOYLE, JJ., and SCHROEDER and McKEE, JJ. Pro Tem., concur.VIII
COVENANT OF GOOD FAITH AND FAIR DEALING
The trial court instructed the jury in Instruction No. 39 that:
Every contract imposes on all parties to the contract an obligation of good faith and fair dealing in its performance or enforcement. “Good faith” means honesty in fact in the conduct or the transaction concerned.
Each party owes a duty to exercise good faith in its dealings and transactions with the other party. If a party fails to deal honestly with the other party, it is liable for a breach of the duty of good faith.
Additionally, Instruction No. 40 read:
In all guaranty relationships, Idaho First owes to a guarantor a duty of continuous good faith and fair dealing.
Based upon those instructions, the jury returned a verdict against Idaho First and in favor of Erkins for $250,250, in favor of the Walkers in the amount of $46,000, and in favor of the limited partners in the sum of $2,000 each.
Idaho First appeals, raising several errors regarding the submission of this issue to the jury. Initially, for the same reason which we reversed the award of punitive damages, i.e., the erroneous admission of evidence in support of the bad faith and breach of fiduciary duty claims which should not have been issues in this case, the verdict and judgment on the covenant of good faith and fair dealing must be set aside. Yacht Club Sales & Service v. First National Bank of North Idaho, supra. Additionally, we conclude that Instruction No. 39 is contrary to the law established by our prior cases.
In Luzar v. Western Surety, 107 Idaho 693, 692 P.2d 337 (1984), this Court, without defining the nature of the covenant involved, stated that, “Good faith and fair dealing are implied obligations of every contract.” 107 Idaho at 696, 692 P.2d at 340. In Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989), we first defined what constitutes a breach of the covenant of good faith and fair dealing *288by stating, “Any action by either party which violates, nullifies or significantly impairs any benefit of the employment contract is a violation of the implied-in-law covenant.” 116 Idaho at 627, 778 P.2d at 749. Further, we stated in Metcalf that “the covenant is implied in contracts,” and that the breach “results in contract damages, not tort damages.” 116 Idaho at 626, 778 P.2d at 748. We reaffirmed that definition of the covenant in Sorensen v. Comm Tek, Inc., 118 Idaho 664, 799 P.2d 70 (1990). Most recently, in Burton v. Atomic Workers’ Federal Credit Union, 119 Idaho 17, 803 P.2d 518 (1990), this Court described the implied covenant “as a covenant in contract, not in tort, the breach of which is a ‘breach of the employment contract, and is not a tort.’ ” 119 Idaho at 23, 803 P.2d at 524. In First Security Bank of Idaho v. Gaige, 115 Idaho 172, 765 P.2d 683 (1988), we pointed out that the implied covenant of good faith and fair dealing cannot be inconsistent with the agreement executed by the parties:
Gaige claims First Security breached a duty of good faith and fair dealing implied in the guaranties. However, we agree with the trial court’s ruling that First Security did not breach any duty to Gaige by merely exercising its express rights under the guaranty agreement. There is no basis for claiming implied terms contrary to express rights contained in the parties’ agreement.
115 Idaho at 176, 765 P.2d at 687 (emphasis supplied).
Our analysis and definition of the implied covenant of good faith and fair dealing is consistent with surrounding states. In Badgett v. Security State Bank, 116 Wash.2d 563, 807 P.2d 356 (1991), the Washington Supreme Court just this year described the implied covenant of good faith and fair dealing as follows:
There is in every contract an implied duty of good faith and fair dealing. This duty obligates the parties to cooperate with each other so that each may obtain the full benefit of performance. However, the duty of good faith does not extend to obligate a party to accept a material change in the terms of its contract. ... Nor does it “inject substantive terms into the parties’ contract.” Rather, it requires only that the parties perform in good faith the obligations imposed by their agreement. ... Thus, the duty arises only in connection with terms agreed to by the parties____
807 P.2d at 360 (emphasis supplied).
As the foregoing cases demonstrate, the implied covenant of good faith and fair dealing is a covenant implied by law in the parties’ contract. No covenant will be implied which is contrary to the terms of the contract negotiated and executed by the parties. First Security Bank of Idaho v. Gaige, 115 Idaho 172, 765 P.2d 683 (1988); Clement v. Farmers Ins. Exchange, 115 Idaho 298, 766 P.2d 768 (1988) (an implied covenant of good faith and fair dealing cannot override an express provision in a contract). The covenant requires “that the parties perform in good faith the obligations imposed by their agreement,” Badgett v. Security State Bank, 116 Wash.2d 563, 807 P.2d 356, 356 (1991), and a violation of the covenant occurs only when “either party ... violates, nullifies or significantly impairs any benefit of the ... contract____” Sorensen v. Comm Tek, Inc., 118 Idaho 664, 669, 799 P.2d 70, 75 (1990); Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989).
In this case the trial court, which did not have the benefit of our Metcalf, Sorensen and Burton decisions at the time it prepared the instructions for the jury, instructed the jury in Instruction No. 39 that the covenant of good faith and fair dealing “means honesty in fact in the conduct or the transaction concerned. ... If a party fails to deal honestly with the other party, it is liable for breach of the duty of good faith.” Instruction No. 39 does not explain what “dealing honestly with the other party” means, nor does the instruction advise the jury that, by merely standing upon the terms of a contract, a party does not fail to deal honestly with another party regardless of how onerous the terms of that contract may be. In addition to *289being an inadequate statement of the requirements of the good faith implied covenant, the jury may well have confused the “dealing honestly” requirement in Instruction No. 39 with the “intentionally unreasonable” requirement of the bad faith tort in Instruction No. 53. The jury may well have concluded that under Instruction No. 53, if a party intentionally acted unreasonably, he might also have “failed to deal honestly with the other party” under Instruction No. 39, even though in both cases he was merely enforcing his rights under the contract.
Instruction No. 39 did not adequately inform the jury of the law relating to the implied covenant of good faith as outlined in Metcalf and Sorensen. The covenant of good faith and fair dealing is only violated when “action by either party ... violates, nullifies or significantly impairs any benefit of the ... contract.” Metcalf, supra. The covenant requires “that the parties perform in good faith the obligations imposed by their agreement.” Badgett v. Security State Bank, 116 Wash.2d 563, 807 P.2d 356 (1991). “There is no basis for claiming implied terms contrary to the express rights contained in the parties’ agreement.” First Security Bank of Idaho v. Gaige, 115 Idaho 172, 176, 765 P.2d 683, 687 (1988); Clement v. Farmers Ins. Exchange, 115 Idaho 298, 766 P.2d 768 (1988).
Since the covenant of good faith is a “covenant ... implied in the contract” under our Metcalf, Sorensen and Burton cases and only requires the parties to perform in good faith the obligations contained in their agreement, the covenant is only violated when “action by either party ... violates, nullifies or significantly impairs any benefit of the ... contract.” Metcalf v. Intermountain Gas Co., supra; Sorensen v. Comm Tek, supra. A violation of the implied covenant is a breach of the contract. It does not result in a cause of action separate from the breach of contract claims, nor does it result in separate contract damages unless such damages specifically relate to the breach of the good faith covenant. To hold otherwise would result in a duplication of damages awarded for breach of the same contract. As in other contract cases, a claimant may be entitled to consequential damages for breach of the implied covenant of good faith if “there is something in that contract that suggests that they were within the contemplation of the parties and are proved with reasonable certainty.” Brown’s Tie & Lumber Co. v. Chicago Title Co., 115 Idaho 56, 61, 764 P.2d 423, 428 (1988).
Because Instruction No. 39 did not sufficiently define the implied covenant of good faith and fair dealing and the circumstances in which the covenant is not applicable, the judgment and award of damages for breach of the implied covenant are reversed.
BOYLE, J., and SCHROEDER and McKEE, JJ. Pro Tern., concur. JOHNSON, J., concurs in result.IX
REALIGNMENT OF THE PARTIES
On retrial the trial court must reevaluate the realignment in light of the fact that three of the borrowers’ tort claims, bad faith tort, breach of fiduciary duty, and defamation, which resulted in the bulk of the evidence being admitted at trial, have now been eliminated. The only tort claims remaining are (1) Robert Erkins’ claim of tortious interference with contract or tortious interference with prospective economic advantage, and (2) possibly the limited partners’ claim of negligent misrepresentation. {See Part X, infra.)
This action began as a mortgage foreclosure action. Regardless of whether a case is tried to the court or to the jury, the interpretation of a contract or other written document is a question of law for the court, not the finder of fact, unless there is an ambiguity, and then only the ambiguous portion is a factual issue. DeLancey v. DeLancey, 110 Idaho 63, 714 P.2d 32 (1986); Bergkamp v. Carrico, 101 Idaho 365, 613 P.2d 376 (1980).
The rights, duties and responsibilities of the parties in this equitable fore*290closure proceeding are to be determined by the court based upon the comprehensive group of documents negotiated and executed by the parties.17 Carpenter v. Double R Cattle Co., 108 Idaho 602, 701 P.2d 222 (1985). The borrowers’ counterclaims depend, to a greater or lesser degree, upon the determination of the rights and duties created by the original loan transaction and the trial court’s findings of fact and conclusions of law on the equitable issues. In making these findings of fact, the judge may defer to, but is not bound by, findings made on similar factual issues by the jury on any legal counterclaim. State ex rel. McAdams v. District Court, 105 N.M. 95, 728 P.2d 1364, 1366 (1986) (“[W]hen legal and equitable issues are joined in a lawsuit the trial court should first decide the equitable issues, and then if any independent issues remain, those issues may be tried to a jury upon appropriate request.”); Penmont Enterprises, Inc. v. Dysart, 340 So.2d 1285 (Fla.App.1977); Jaffe v. Albertson Co., 243 Cal.App.2d 592, 53 Cal.Rptr. 25, 36 (1966) (“[Wjhen a case involves both legal and equitable issues the court may in its discretion decide the equitable issues first. If the decision as to the equitable issues is such as is determinative of the legal issues a jury trial as to the latter is obviated. If not, the jury trial as to the remaining issues will follow.”). However, “the trial court should defer entry of judgment in the foreclosure proceedings until after determination of the counterclaim[s].” David Steed and Associates v. Young, 115 Idaho 247, 252, 766 P.2d 717, 722 (1988) (Johnson, J. concurring specially); Folkner v. Collins, 249 Iowa 1141, 91 N.W.2d 545 (1958).
BOYLE, J., and SCHROEDER and McKEE, JJ. Pro Tern., concur.X
CROSS APPEAL
The Walkers have filed a cross appeal for failure of the trial court to submit their claim of breach of fiduciary duty by the bank. However, we have concluded that the trial court erred in submitting any of the borrowers’ claims of breach of fiduciary duty to the jury. (See Part IV.) Accordingly, the Walkers’ claim on their cross appeal has no merit.
The limited partners raise two issues on cross appeal.18 First, they claim that the trial court erred by refusing to submit their claim of the bank’s negligent misrepresentation to the jury. We recognized a cause of action for negligent misrepresentation in Idaho Bank & Trust v. First Bancorp, 115 Idaho 1082, 772 P.2d 720 (1989). Idaho Bank & Trust was decided on April 26, 1989, and this case went to trial in April, 1989. The legal issues in this case had been solidified and the discovery completed long prior to that time, and thus the decision in the Idaho Bank & Trust case was essentially not available to the parties or the district court for this trial. Since the quantity and type of evidence which will be allowed at retrial will be different, given our decision today which limits substantially the issues to be tried upon remand, we need not resolve whether the trial court erred in failing to submit the limited partners’ claim of negligent misrepresentation to the jury. On retrial the trial court should evaluate the limited partners’ negligent misrepresentation claims under our decisions in Idaho Bank & Trust v. First Bancorp, supra, and Hudson v. Cobbs, 118 Idaho 474, 797 P.2d 1322 (1990), based upon the evidence at retrial.
The limited partners also raise on cross-appeal the trial court’s denial of their defense of a good faith duty on the part of *291the bank to provide information. We agree with the trial court’s decision to deny this defense. As we discussed extensively above in Part III regarding the bad faith tort, in a contractual setting, the duties and obligations of the partners are created by the terms of the contract. “Courts [cannot] interpret an agreement to mean something that it does not say, nor interpolate into a contract something the contract does not itself contain.” Nuquist v. Bauscher, 71 Idaho 89, 95, 227 P.2d 83, 87 (1951). See also, Ohms v. Church of the Nazarene, 64 Idaho 262, 130 P.2d 679 (1942); J.R. Simplot Company v. Chambers, 82 Idaho 104, 350 P.2d 211 (1960). To impose a duty on the bank to provide information regarding “material changes in the nature of the risk” would be to impose a “free floating duty” not found in the express or implied terms of the loan agreement. Badgett v. Security State Bank, 116 Wash.2d 563, 807 P.2d 356 (1991). Accordingly, we affirm the trial court’s decision to reject this defense.
None of the borrowers have raised on cross appeal any issue of law or fact regarding the jury’s verdict finding that there was no fraud and no violation of RICO. Because they have not raised any issue claiming error either in the admission of evidence, the instructions to the jury, or that the jury’s verdict was against the great weight of evidence on their claims of fraud and RICO violation, the jury’s verdict and the court’s judgment denying any relief on those issues is res judicata, and those issues will not be subject to retrial on remand. Walker v. Shoshone County, 112 Idaho 991, 993, 739 P.2d 290, 292 (1987) (“A cross appeal is required only when the respondent seeks to change or add to the relief afforded below____”); Gonzales v. R.J. Novick Constr. Co., Inc., 20 Cal.3d 798, 144 Cal.Rptr. 408, 575 P.2d 1190 (1978):
“Ordinarily [an appeal from a specific portion of a judgment] would leave the parts not appealed from unaffected, and it would logically follow that such unaffected parts must be deemed final, being a final judgment of the facts and rights which they determine. The decisions are to the effect that upon such an appeal where the parts not appealed from are not so intimately connected with the part appealed from that a reversal of that part would require a reconsideration of the whole case in the court below, the court upon such partial appeal can inquire only with respect to the portion appealed from.” [Citation omitted.] ... [I]t is “the general principal that an appeal from a distinct and independent part of a judgment does not bring up the other parts for review in the appellate court, and that a reversal of the part appealed from does not affect the portions not dependent thereon, but that they will stand as final adjudications[.]”
144 Cal.Rptr. at 412, 575 P.2d at 1194, quoting Whalen v. Smith, 163 Cal. 360, 125 P. 904 (1912).
In Tolman v. Tolman, 93 Idaho 374, 461 P.2d 433 (1969), this Court stated:
It is a sound rule of practice, and one to which we have long subscribed, that a trial court will restrict its consideration in a remanded action to those questions specified in the mandate and will not reexamine issues already laid to rest by the appellate court affirmance on the preceding appeal. The purpose of this precept is to cause litigation to come to an end within some finite period____ In our opinion on the first appeal we affirmed all questions raised in the first trial excepting the three issues which we remanded to the district court. That court was, therefore, correct in refusing to go beyond those three questions.
93 Idaho at 375, 461 P.2d at 434.
The respondents have had one trial and jury verdict on their fraud and RICO claims, and have not raised any issue concerning any error relating to the trial of those claims, or any legal error in the instructions to the jury. Therefore, those issues are laid to rest. Those issues are not so intertwined, or so interdependent with the respondents’ other claims which must be retried, that the trial of respondents’ other issues on remand would be prejudiced by not being allowed to have a retrial on what was an otherwise error-free *292trial as far as the fraud and RICO issues are concerned. Accordingly, the respondents’ fraud and RICO claims will not be issues on retrial.
JOHNSON and BOYLE, JJ., and SCHROEDER and McKEE, JJ. Pro Tern., concur.The judgment of the district court is reversed, and the cause remanded for a new trial consistent with this opinion.
Costs to appellant. An award of attorney fees to any party is deferred pending the final outcome in the trial court.
*293APPENDIX A
GEO/PLEUROTUS GROWERS LIMITED PARTNERSHIP
SUBSCRIPTION AGREEMENT
Geo/Pleurotus Growers Limited Partnership
P. 0. Box 1892
184 Second Street West
Twin Falls, ID 83303-1892
1. Subscription. The undersigned hereby applies to
become a Limited Partner in Geo/Pleurotus Growers Limited Partnership (the "Partnership"), a limited partnership to be formed under the laws of the State of Idaho with Robert A. Erkins and Thomas G. Walker Jr. as the General Partners (the "General Partners"), and to purchase the number of units of limited partnership interest (the "Units") indicated below in accordance with the terms of this agreement and the Certificate and Agreement of Limited Partnership (the "Partnership Agreement") attached to the Confidential Private Placement Memorandum, dated May 20, 1984, relating to the Units (such Confidential
Private Placement Memorandum including all financial statements, exhibits and schedules contained therein or attached thereto, and any amendments and supplements thereto, is herein called the "Memorandum"). This subspription may be rejected by the General Partners in their sole discretion.
2. Representations .And Warranties. The undersigned acknowledges, represents, warran'ts and agrees as follows:
(a) The undersigned has received the Memorandum, and has carefully reviewed the Partnership Agreement and the Memorandum, and has relied in making this investment only on the information contained therein, information otherwise provided to him in writing by the General Partners or information from books and records of the General Partners. The undersigned understands that all documents, records and books pertaining to this investment have been made available for inspection by his attorney and/or his accountant and/or his Purchaser Representative(s), as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amended (the "Act"), and him, and that the books and records of the Partnership will be available upon reasonable notice, for inspection by investors during reasonable business hours at its principal place of business. The undersigned and/or his advisor (s), if any, have had a reasonable opportunity to ask questions of, and receive answers
Date ADMITTED [* EXHIBIT
*294from, the General Partners, or a person or persons acting on their behalf, concerning the offering of the Units, and all such questions have been answered to the full satisfaction of the undersigned. No oral representations have been made or oral information furnished to the undersigned or his advisor(s) in connection with the offering of the Units which were not contained in the Memorandum.
(b) The undersigned (i) has adequate, means of providing for his current needs and possible personal contingencies, (ii) has no need for liquidity in this investment, (iii) is able to bear the substantial economic risks of an investment in the Units for an indefinite period, and (iv) at the present time, could afford a complete loss of such investment.
(c) The undersigned's commitment to investments which are not readily marketable is not "disproportionate to his net worth and his investment in the Units will not cause his overall commitment to become excessive.
(d) The undersigned recognizes that the Partnership has only recently peen organized and has no financial or operating history and that the Units as an investment involve significant risks, including those set forth under the captions "Risk Factors" and "Certain Federal Income Tax Considerations" in the Memorandum.
(e) The undersigned and/or his advisor(s) and/or his Purchaser Representative(s) (if applicable) have such knowledge and experience in financial, tax and business matters to enable him and/or them to utilize the information made available to him and/or them in connection with the offering of the Units, to evaluate the merits and risks of the prospective investment and to make an informed investment decision with respect thereto. Each Purchaser Representative, if any, has confirmed in writing the specific details of any and all past, present or future relationships, actual or comtemplated, between himself or his affiliates and the General Partners or any of their affiliates and any compensation received or to be received as a result of any such relationships.
(f) The undersigned understands that the Memorandum has not been filed with or reviewed by any Federal or state securities administrators because of
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*295the representation made by the General Partners as to the private or limited nature of the offering.
(g) The undersigned understands that the sale of the Units has not been registered under the Act in reliance upon an exemption therefrom for non-public offerings. The undersigned understands that the Units may have to be held indefinitely unless the sale or other transfer thereof is subsequently registered under the Act, as amended, or an exemption from such registration is available. The undersigned further understands that the Partnership is under no obligation to register the Units on his behalf or to assist him in complying with any exemption from registration.
(h) The undersigned represents that the Units are being purchased soley for his own account for investment purposes only and not for the account of any other person and not for distribution,** assignment or resale to others and that no other person has a direct or indirect beneficial interest in such Units.
(i) The undersigned understands that he may not be able to sell or dispose of his Units as there will be no public market for th^m. In addition, the undersigned understands that his right to transfer the Units will be subject to the conditions set forth in the Partnership Agreement, including consent of the General Partners and' restrictions against transfer unless the transfer is not in violation of the Act and applicable state securities laws (including investor suitability standards). The undersigned understands that the General Partners will not consent to a transfer of a Unit unless the transferee represents that he meets the financial suitability standards required of an initial subscriber unless such conditions are waived by the General Partners, and that the General Partners have the right, in absolute discretion, to refuse to consent to the transfer of a Unit.
(j) The undersigned understands that legends will be placed on any certificates or other documents evidencing the Units with respect to the above restrictions on assignment, resale or other disposition of the Units.
(k) The undersigned; if a corporation, partnership, trust or other entity, is authorized and otherwise" duly qualified to purchase and hold the Units, such entity (i) has not been formed for the specific
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*296purpose of acquiring Units in the Partnership or (ii) qualifies as an accredited investor under Rule 501(a)(8) promulgated under the Act and each equity owner thereof has executed and delivered simultaneously herewith a Subscription Agreement substantially identical to this Agreement and a Purchase Questionnaire.
(l) The undersigned represents and warrants that all information provided to the General Partners in the Purchaser Questionnaire or otherwise concerning himself, his investor status, financial position and matters, or, in the case of a corporation, partnership, trust or other entity, the knowledge and experience in financial and business matters of the person making the investment decision on behalf of such entity, is correct and complete as of the date set forth at the end hereof and if there should be any adverse change in such information prior to“acceptance of his subscription, he will immediately provide the General Partners with such information.
(m) The undersigned, if he is an individual, is at least 21 years of age.
(n) The undersigned understands that if he shall be in default of any payment due to the Partnership pursuant to the Partnership Agreement, his interest in the Partnership may be sold pursuant to the terms of the Partnership Agreement and that he may not be entitled to receive any amount upon such sale, as provided in the Partnership Agreement. Further, the undersigned understands that the Partnership shall have all rights, remedies and privileges against him that are available at law or in equity, and in addition, the Partnership shall have the right to recover any reasonable court costs and legal fees in connection therewith.
(o) The undersigned understands that the discussion of the tax consequences arising from investment in the Partnership as set forth in the memorandum is general in nature and that the actual tax consequences to the undersigned of investment in the Partnership depend on his individual circumstances.
(p) The undersigned understands that there can be no assurance that thé Internal Revenue Code or the regulations thereunder will not be amended or applied in such a manner as to deprive the Partnership and its
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*297partners of some or all of the tax benefits they might expect to receive, and that some of the deductions claimed by the Partnership or the allocation of items of income, gain, loss, deduction or credit among the partners may not be challenged by the Internal Revenue Service.
(q) THE UNDERSIGNED UNDERSTANDS THAT THE UNITS HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED. THE EXEMPTION IS AVAILABLE UNDER §4(2) THEREOF AND RULE 505 OF REGULATION D PROMULGATED THEREUNDER. ACCORDINGLY, THE UNITS MAY NOT BE SOLD OR TRANSFERRED ABSENT REGISTRATION OR AN APPLICABLE EXEMPTION.
3. Adoption of Partnership Agreement. The undersigned hereby adopts, accepts and agrees to be bound by all the terms and provisions of the Partnership Agreement and to perform all obligations therein imposed upon a Limited Partner with respect to the Units purchased. Upon acceptance of this subscription by the General Partners and upon formation of the Partnership, the undersigned shall become a Limited Partner for all purposes.
4. Special Power of Attorney.
(a) The undersigned, by executing this Agreement, irrevocably makes, constitutes and appoints each of the General Partners his true and lawful attorney, for him and in his name, place and stead for his use and benefit, to execute and acknowledge and, to the extent necessary, to file and record:
(i) The Partnership Agreement and all amendments thereto;
(ii) Any other instrument which may be required to be filed by the Partnership, or which the General Partners deem is advisable to file; and
(iii)Any documents which may be required to effect the continuation of the Partnership, the admission or substitution of a Limited Partner, or the dissolution and termination of the Partnership, provided such continuation, admission, substitution or dissolution and termination are in accordance with the terms of the Agreement of Limited Partnership.
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*298(b) Such grant of authority:
(i) Is a Special Power of Attorney coupled with an interest, is irrevocable and shall survive the death or incapacity of the undersigned.
(ii) May be exercised by either of the General Partners either by signing separately as attorney-in-fact for each Limited Partner or, after listing all of the Limited Partners, by executing any instrument with the single signature of a General Partner acting as attorney-in-fact for all of them; and
(iii) Shall survive the assignment by a Limited Partner of the whole or a portion of his interest.
This Special Power of Attorney does not supersede any part of the Partnership Agreement nor is it to be used to deprive the undersigned Limited Partner of any of his rights. It is intended only to provide a simplified system for execution of documents. If required, the undersigned shall execute and deliver to the General Partners within five days after the receipt of a request therefor, sych additional designations, powers of attorney or other instruments as the General Partners shall reasonably deem necessary.
5. Indemnification. The undersigned agrees to indemnify and hold harmless the Partnership and the General Partners and the respective agents, employees and affiliates from and against all damages, losses, costs and expenses (including reasonable attorneys' fees) which they may incur by reason of the failure of the undersigned to fulfill any of the terms or conditions of this Agreement, or by reason of any breach of the representations and warranties made by the undersigned herein or in connection with the Partnership Agreement, or in any document provided by the undersigned to the Partnership or the General Partners.
6. Miscellaneous.
(a) The undersigned hereby grants to the Partnership a security interest in Units purchased by the undersigned to secure payment of the Investor's Promissory Note, the form of which is attached as Exhibit "C" to the Memorandum, and performance of the Assumption of Liabilities Agreement in the form attached to the Memorandum as Exhibit “K", being delivered herewith (the "Assumption of Liabilities Agreement").
6-
*299(b) In the event the undersigned defaults under either the Investor's Promissory Note or the Assumption of Liabilities Agreement, the Partnership and the lenders shall have all the rights and remedies set forth herein, in the Investor's Promissory Note, and Assumption of Liabilities Agreement, in the Partnership Agreement and as otherwise provided by law.
(c) From the proceeds of any such foreclosure or sale, the Partnership may retain the amóHht of all costs and expenses incurred by it in connection with such foreclosure or sale, including costs of sale and reasonable attorneys' fees. In the event any surplus remains from the proceeds of such foreclosure or sale, after all authorized deductions and payments to the Partnership, any such remaining surplus shall be paid to the undersigned. The Partnership may become the purchaser at any such sale. The undersigned-recognizes that the Partnership may be unable to effect a public sale of all or a part of the Units so purchased because of certain prohibitions contained in the Act and in applicable state securities laws and, therefore, may be compelled to resort to one or more private sales to a restricted group of offerees and purchasers who fulfill certain suitability standards and agree, among other things, to acquire such Units for their own account, for investment purposes only and not with a view to distribution or résale. The undersigned consents to private sales so made even though such sales may be at prices and upon other terms less favorable than if such Units were sold at public sales. The undersigned agrees that private sales made under the foregoing circumstances will be deemed to have been made in a commercially reasonable manner.
(d) The Partnership shall have the right to enforce one or more remedies hereunder, successively or concurrently, and any such action shall not stop or prevent the Partnership from pursuing any further remedy which it may have hereunder, under the Partnership Agreement or by law including, without limitation, the right on the part of the Partnership to waive its rights hereunder and to commence an action on the Investor's Promissory Note and the Assumption of Liabilities Agreement as though the Assumption of Liabilities Agreement was unsecured.
.(e) At any time and from time to time, upon request of the Partnership, the undersigned will give, execute, file and/or record any notice, financing
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*300statement, continuation statement, instrument, document or agreement that the Partnership may consider necessary or desirable to create, perserve, continue, perfect or validate the security interest granted hereunder or which the Partnership may consider necessary or desirable to exercise or- enforce its rights hereunder with respect to such security interest.
(f) The undersigned represents and agrees that he will own all of the Units to be purchased free and clear of all liens and encumbrances (other than the security interest granted hereby) and agrees that he will not encumber or grant any security interest in or file a financing statement with respect to such Units, or permit any of the foregoing, without the prior written consent of the Partnership and hereby represents that (except as aforesaid) he has not heretofore done so.
(g) The undersigned agrees not to transfer or assign this Agreement, or any of the undersigned's interest herein, and further agrees that the transfer or assignment of the Units acquired pursuant hereto shall be made only in accordance with the Partnership Agreement and all applicable laws.
(h) The undersigned agrees that the undersigned may not cancel, terminate or revoke this Agreement or any agreement of the undersigned made hereunder and that this Agreement shall survive the death or disability of the undersigned and shall be binding upon the undersigned'8 heirs, executors, administrators, successors and assigns.
(i) Notwithstanding any of the representations, warranties, acknowledgements or agreements made herein by the undersigned, the undersigned does not hereby or in any other manner waive any rights granted to the undersigned under federal or state securities laws.
(j) This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and may be amended only by a writing executed by all parties.
(k) This Agreement shall be enforced, governed and construed in all respects in accordance with the laws of the State of Idaho. Any action or proceeding commenced by either party to enforce any remedy or right granted or implied by this Agreement shall be
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*301commenced in the Fifth District Court of the State of Idaho in and for the County of,,Twin Falls and both parties hereby consent to such in personam jurisdiction and venue.
(1) Within five days after receipt of a written request from the Partnership, the undersigned agrees to provide such information and to execute and deliver such documents as reasonably may be necessary to comply with any and all laws and ordinaces ta.-whi.ch the Partnership is subject.
7. Subscription and Method of Payment. The undersigned, acknowledging that the minimum subscription is thirty thousand (30,000) Units, hereby subscribes for Units and encloses a down payment as follows:
r>- I Units at $1.00 per Unit for an^ aggregate investment of $_Zj ■ payable as folloi/s:
Twenty percent (tól{ upon execution and delivery of this Subscription Agreement, and eighty percent (80%) by execution and delivery to the General Partners, or either of them, of an Investor's Promissory ,Note in the form attached to the Memorandum as Exhibit "C."
8. Contingency. ThT-s Agreement is contingent upon the commitment for purchase of ^the minimum number of Units and upon receipt by the Partnership of loan commitments in the aggregate amount of not less than $3,150,000.
[The balance of this page was intentionally left blank.]
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*302TYPE OF OWNERSHIP
(Check One)
Individual (One signature required)
Joint Tenants with right of survivorship (Both parties must sign)
Tenants in Common (Both parties must sign)
Community Property (Both parties must sign)
Trust (Please include copy of instrument creating Trust)
Corporation (Please include evidence of authorization to purchase in form of resolutions or Articles of Incorporation and By-Laws)
Partnership (Please include copy of Partnership Agreement)
Please print here the exact name (registration) investor desires for Unit(s)
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*303SIGNATURE PAGE
FOR INDIVIDUAL INVESTORS
Husband/Investor Wife/lnvestor
Signature Signature
Social Security Number Social Security Number
Print or Type Name Print or Type Name
Residence Address: Residence Address:
Executed at: Executed at:
City City
State State
this_day of this_day of
, 19 . 19
Mailing Address:
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*304STATE OF _ ) ) ss. County of _ )
On this _ day of _1984, before me, the undersigned, a notary public in and for said county and state, personally appeared __, known to me to be the person whose name is subscribed to" the within instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the same day and year in this certificate first above written.
Notary Public for Residing at Commission expires:
STATE OF _ ) ) ss. County of _ )
On this _ day of _, 1984, before me, the undersigned, a notary public in and for said county and state, personally appeared _¡__, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the same day and year in this certificate first above written.
Notary Public for_
Residing at_
Commission expires:
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*305SIGNATURE PAGE
FOR CORPORATE INVESTORS
Name of corporation (please print or type)
By: ___ (Signature of authorized agent)
Title: _____________
Taxpayer Identification No.: _________
Address of Principal Corporate Offices ___________
Attention:
Executed at City Stat<* _this_day of 19
STATE OF _ ) ) ss. County of _ )
On this _ day of _, 1984, before me, the undersigned, a notary public in and for said county and state, personally appeared _ , known to me to be the President of _^ _, the corporation whose name is subscribed to the within instrument or the person who executed the instrument on behalf of said corporation and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the same day and year in this certificate first above written.
NOTARY PUBLIC FOR
Residing at_
Commission expires:
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*306SIGNATURE PAGE
FOR PARTNERSHIP INVESTORS
Name of Partnership (please print or type)
By: _ _ Signature of a general partner
By: _;_ _ _i_ Signature of additional generalpartner (if required by Partnership Agreement)
Taxpayer Identification No.: _
Principal Business Address: _
Mailing Address, if different:
Attention:
Executed at___ City _this_day of State 19
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*307STATE OF _ ) ) ss. County of _ )
On this _ day of _ , 1984, before me, the undersigned, a notary public in and for said county and state, personally appeared _ , known to me to be one of the partners in the partnership of ____, and the partner or one of the partners who subscribed said partnership name to the foregoing instrument, and acknowledged ts> me that he executed the same in said partnership name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the same day and year in this certificate first above written.
NOTARY PUBLIC FOR
Residing at_
Commission expires:
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*308SIGNATURE PAGE
FOR TRUST INVESTORS
Name of Trust (please print or type)
Name of Trustee (please print or type)
By: _r——i_ Trustee's signature
Trustee's Address: _ __
Attention:
• Executed at_ City _this_day of State 19
STATE OF _ ) } ss. County of _ )
On this _ day of _, in the year 1984, before me, the undersigned, a notary public in and for said county and state, personally appeared __, known to me to be the person whose name is subscribed to the within instrument as trustee and acknowledged to me that she executed the same as such trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the same day and year in this certificate first above written.
Notary Public for_
Residing at_
Commission expires:
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. The equitable claim against the limited partners, in their capacity as limited partners, is limited to their investment interest in the limited partnership’s assets. The bank’s additional claims against the limited partners on their assumption of liability agreements and guaranties are legal claims, not equitable claims.
. The limited partners do not argue that the alleged errors they raise in their cross-appeal require reversal and a new trial. They simply argue that, in the event this case is reversed and remanded for a new trial based on the other issues raised by the bank, these two issues should be submitted to the jury.