Exhibit 10.37
STATE OF COLORADO
CITY AND COUNTY OF EL PASO
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT
This Deed of Trust, Security Agreement and Financing Statement (hereinafter
"Deed of Trust") is entered into between RAMTRON LLC, a Colorado limited
liability company (hereinafter "Grantor") whose mailing address is 0000
Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, and the Public Trustee of the
County of El Paso, State of Colorado (hereinafter "Trustee"), for the benefit
of AMERICAN NATIONAL INSURANCE COMPANY, whose mailing address is Attn:
Mortgage and Real Estate Investment Department, Xxx Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxx 00000 (hereinafter "Beneficiary").
I. DEFINITIONS
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1.1 The term "Indebtedness" shall mean and include:
(1) Any and all sums becoming due and payable pursuant to the Note, as
hereinafter defined;
(2) Any and all other sums becoming due and payable by Grantor to
Beneficiary including, but not limited to, such sums as may
hereafter be borrowed by Grantor from Beneficiary (it being
contemplated that such future Indebtedness may be incurred),
including, but not limited to advancements or expenditures made by
Beneficiary pursuant to the terms and conditions of this Deed of
Trust or any other document evidencing, securing or relating to the
Note; and
(3) Any and all obligations, covenants, agreements and duties of any
kind or character of Grantor now or hereafter existing, known or
unknown, arising out of or in connection with the Note, this Deed of
Trust, or any other document evidencing, securing or relating to the
Note (collectively "Loan Documents"; individually "Loan Document").
(4) All renewals, extensions, modifications, increases, consolidations
and rearrangements of any or all of the obligations, covenants,
agreements and duties of Grantor defined herein under the term
Indebtedness, whether or not Grantor executes any renewal,
extension, increase, consolidation or rearrangement.
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1.2 The term "Collateral" shall mean and include (a) all of the goods,
articles of personal property, accounts, general intangibles, instruments,
documents, furniture, furnishings, equipment and/or fixtures of every kind and
nature whatever (including, without limitation, the items described in
subsection (b) - (e) below) now or hereafter owned by Grantor, in or hereafter
placed in, or used or which may become used, in connection with or in the
operation of the Mortgaged Premises, together with all additions thereto,
replacements thereof, substitutions therefor and all proceeds thereof; (b) all
rents, rentals, payments, compensations, revenues, profits, incomes, leases,
licenses, concession agreements, insurance policies, plans and specifications,
contract rights, accounts, escrowed funds, and general intangibles in any way
relating to the Mortgaged Property or used or useful in the use, enjoyment,
ownership or operation of the Mortgaged Property; (c) all names, trade names,
signs, marks, and trademarks under which the Mortgaged Property, or any part
thereof, is known or operated and all of Grantor's rights to carry on the
business of Grantor under all such name or names and any variant or variance
thereof; (d) all deposits, awards, damages, payments, escrowed monies,
insurance proceeds, condemnation awards or other compensation, and interests,
fees, charges or payments accruing on or received from or to be received on
any of the foregoing in any way relating to the Mortgaged Property, or the
ownership, enjoyment or operation of the Mortgaged Property together with all
proceeds of the foregoing described in this Section 1.2; and (e) all products,
proceeds, substitutions, and replacements of any of the above described
collateral.
1.3 The term "Mortgaged Premises" shall mean and include (a) the real
property situated in the City of Colorado Springs and County of El Paso, State
of Colorado, described in Exhibit "A" which is attached hereto and
incorporated herein for all purposes; together with all buildings and
improvements of every kind and description now or hereafter erected or placed
thereon and all materials now or hereafter placed thereon intended for
construction, reconstruction, alteration and repairs of such buildings and
improvements, all of which materials shall be deemed to be included as a part
of said real property immediately upon the delivery thereof to said real
property; (b) all fixtures now or hereafter owned by Grantor and attached to,
contained in or used in connection with said real property, and all renewals
and replacements thereof, including but not limited to (i) all equipment,
apparatus, machinery, motors, elevators, fittings and radiators, (ii) all
plumbing, heating, lighting, ventilating, refrigerating, incinerating,
air-conditioning and sprinkler equipment; (iii) all awnings, storm windows and
doors, mantels, cabinets, computer flooring, rugs, carpeting, linoleum,
stoves, shades, draperies, blinds and water heaters; (iv) such other goods and
chattels and personal property as are usually furnished by landlords in
letting an unfurnished building, or which shall be attached to said buildings
and improvements by nails, screws, bolts, pipe connections, masonry or in any
other manner; and (v) all built-in equipment as may be shown by plans and
specifications.
1.4 The term "Mortgaged Property" shall mean the Mortgaged Premises and
Collateral.
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1.5 The term "Note" shall mean that certain Promissory Note of even date
herewith, in the principal sum of $4,200,000.00 executed by RAMTRON LLC and
payable to the order of Beneficiary, payable with interest at the per annum
rate of six and seventeen one hundredths percent (6.17%) in installments as
stipulated therein and providing for the right to declare the unpaid principal
balance due and payable upon the occurrence of an Event of Default and
otherwise as provided therein and providing for the reasonable attorneys'
fees, and all notes given in renewal, extension, modification, increase,
consolidation or rearrangement of said Promissory Note or any portion thereof.
II. CONVEYANCE IN TRUST
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In consideration of Ten Dollars ($10.00) cash in hand paid, of Beneficiary's
advancing or extending to Grantor the funds or credit constituting a part of
the Indebtedness, and the mutual covenants contained herein, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby CONVEYS,
TRANSFERS, ASSIGNS AND WARRANTS TO TRUSTEE IN TRUST FOREVER, WITH POWER OF
SALE, the above-described Mortgaged Property for the purpose of securing the
Indebtedness, and the full and complete performance of each and every
obligation, covenant, duty and agreement of Grantor contained herein or in the
Note or any other document executed by Grantor pertaining to the Note or as
security therefor; TO HAVE AND TO HOLD the Mortgaged Property, together with
the rights, privileges and appurtenances thereto belonging unto the Trustee
and his substitutes or successors forever, and Grantor is hereby bound to
warrant and forever defend the Mortgaged Property unto the Trustee, his
substitutes or successors and their assigns, against the claims of all persons
claiming any interest in the Mortgaged Property or any part thereof save and
except only these items identified on Exhibit "B" attached hereto and
incorporated herein for all purposes (the "Permitted Exceptions"); AND Grantor
hereby grants to Beneficiary a security interest in the Collateral.
III. ADDITIONAL SECURITY
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As further security for the Indebtedness and the full and complete performance
of each and every obligation, covenant, agreement and duty of Grantor
contained herein or contained in any other document executed by Grantor
pertaining to the Note or the security therefor:
A. Security Interest. This Deed of Trust shall cover the Collateral, all
other property affixed to or located upon the Mortgaged Premises described
herein, and all articles of personal property and all materials delivered
to the Mortgaged Property for incorporation or use in any construction
being conducted thereon and owned by Grantor (which to the fullest extent
permitted by law shall be deemed fixtures and a part of the real
property). To the extent this Deed of Trust covers property which is or
may become so affixed to the real property as to become fixtures, this
Deed of Trust also constitutes a fixture filing under Colo. Rev. Stat.
Section 4-9-313. To the extent this Deed of Trust covers property which
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is not fixtures, this Deed of Trust constitutes a financing statement
under Colo. Rev. Stat. Section 4-9-402. If any property covered by this
Deed of Trust consists of rights in action or personal property covered by
the Uniform Commercial Code, this Deed of Trust constitutes a security
agreement and financing statement and is intended when recorded to create
a perfected security interest in such property in favor of Beneficiary.
This Deed of Trust shall be self-operative with respect to such property,
but Grantor agrees to execute and deliver on demand such security
agreements, financing statements, and other instruments as Beneficiary may
request in order to impose the lien hereof more specifically upon any of
such property and to pay all recorded and/or filing fees associated
therewith. If the lien of this Deed of Trust on any property is subject
to a prior security agreement covering such property, then if any Event of
Default, as defined in Section 7.1 below, occurs, Grantor hereby assigns
to Beneficiary all its right, title and interest in and to all deposits
thereon, together with the benefit of any payments now or hereafter made
thereon. For purposes of treating this Deed of Trust as a security
agreement, fixture filing and financing statement, Beneficiary shall be
deemed to be the secured party and Grantor shall be deemed to be the
debtor.
Grantor hereby represents, warrants and covenants that (1) Grantor is the
owner and holder of the Collateral free and clear of any adverse claim,
security interest or encumbrance, except those created herein; (2) it will
defend the Collateral, and the priority of the security interest created
herein as a valid first security interest against all claims and demands
of any person at any time claiming the same or any interest therein; (3)
there are no financing statements executed by Grantor, as Debtor, now on
file in any public office except those financing statements which are
being released contemporaneously with the delivery of this transaction or
which have been authorized by Beneficiary; (4) authorizes Beneficiary to
file or record such other and further agreements, financing statements and
assignments in such offices and at such times as it is deemed by
Beneficiary to be necessary or desirable; and (5) it will execute and
deliver to Beneficiary such other and further agreements, financing
statements and assignments as Beneficiary may request.
B. Assignment of Condemnation Awards. To the extent of the full amount of
the Indebtedness secured hereby and of the cost and expenses (including
reasonable attorneys' fees) incurred by Beneficiary in the collection of
any award or payment, Grantor hereby assigns to Beneficiary any and all
awards or payments, including all interest thereon, together with the
right to receive the same, which may be made with respect to the Mortgaged
Property as a result of (a) the exercise of the right of eminent domain,
(b) the alteration of the grade or of any street, or (c) any other injury
to or decreased value in the Mortgaged Property, as well as the right, but
not the obligation, to, at Grantor's expense, participate in and make
decisions concerning the progress of any proceeding involving any such
award or payment. Grantor shall give Beneficiary written notice of any
such action or proceeding immediately upon Grantor's becoming aware of
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same. All such damages, condemnation proceeds and consideration shall be
paid directly and solely to Beneficiary whether or not an Event of Default
has at such time occurred, and after first applying said sums to the
payment of all costs and expenses (including reasonable attorneys' fees)
incurred by Beneficiary in obtaining such sums, Beneficiary may, at its
option, apply the balance on the Indebtedness, in any order and whether or
not then due, without prepayment or penalty, or to the restoration of the
Mortgaged Property, or release the balance to Grantor. Said application
or release shall not cure or waive any default.
IV. ABSOLUTE ASSIGNMENT OF RENTS
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A. In further consideration for the Indebtedness evidenced by the Note,
Grantor hereby absolutely and unconditionally assigns to Beneficiary all
rents, revenues, profits and incomes from the Mortgaged Property or any
portion thereof. Provided, however, so long as no Event of Default has
occurred, Grantor is hereby granted a license to collect and retain the
currently accruing rents, income and profits from the Mortgaged Property,
but in no event for more than one (1) month in advance of such collection.
If an Event of Default shall occur, however, thereupon, and at any time
thereafter such default is continuing, Beneficiary may terminate such
license and may, without any liability to Grantor, take possession and
control of the Mortgaged Property and/or receive and collect all rents,
revenues, profits and income, accrued or accruing thereafter so long as
any of the Indebtedness remains unpaid, applying so much thereof as may be
collected first to the expenses incident to taking possession and/or the
collection thereof, and second to the payment of the Indebtedness other
than the Note and then to the amount of the Note then remaining unpaid, at
Beneficiary's discretion, either principal or interest, in any order, and
whether then matured or not, paying the balance, if any, to the Grantor.
It is intended by Grantor and Beneficiary that this assignment of rents
constitutes an absolute assignment and not an assignment for additional
security only and that Beneficiary shall be entitled to exercise its
rights hereunder whether or not Beneficiary is in possession of the
Mortgaged Premises at such time. Grantor agrees to fulfill or perform
each and every covenant of any and all leases and guaranties of leases of
the Mortgaged Property so as to keep them at all times in full force and
effect, and not to enter into any new lease without Beneficiary's prior
written consent, and not to make any modification, consent to any
modification of, or cancel, terminate or consent to the surrender of any
lease of all or any part of the Mortgaged Property or any guaranty of such
lease after such lease or guaranty has been executed by Grantor and the
lessee or guarantor, as applicable, without the prior written consent of
Beneficiary; the failure to fulfill or perform any such covenant or the
making of or consent to any such modification or cancellation, termination
or surrender shall be an Event of Default. Nothing contained in this Deed
of Trust or in any other document securing, evidencing or relating to the
Indebtedness shall preclude Beneficiary from taking any action to cure or
remedy any default of the Landlord under any lease of all or any portion
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of the Mortgaged Property or any guaranty of lease, or any act, omission
or occurrence which but for the passage of time, the giving of notice, or
both, would be a default under any such lease or guaranty of lease or take
any other action in connection therewith and any amounts expended by
Beneficiary in connection with such cure or remediation including, without
limitation, reasonable attorneys fees and expenses, shall be an advance
under and secured by this Deed of Trust and shall be included in the
Indebtedness and shall be paid by Grantor to Beneficiary on demand. The
preceding sentence shall not be construed to obligate Beneficiary to cure
any such actual or potential lease defaults or any guaranty of lease
defaults.
B. Beneficiary shall have the right to obtain appointment of a receiver by
any court of competent jurisdiction without notice to Grantor. By
execution of this Deed of Trust, Grantor irrevocably consents to the ex
parte appointment of such receiver. Such appointment shall be as a matter
of right and without regard to or the necessity of disproving the
adequacy of the security for the Indebtedness secured hereby, and
Borrower and each other person so liable waives, or shall be deemed to
have waived, such necessity and consent and shall be deemed to have
consented to such appointment. Any order appointing such receiver may
preclude any further transfer of an interest in, or encumbrance of, the
Mortgaged Property without the consent of the receiver, may require that
Grantor turn over to the receiver any and all funds, documents, records
and reports in its possession relating to the Mortgaged Property upon
demand, shall permit the receiver to market the Mortgaged Property upon
such terms and conditions as the receiver may deem appropriate, either
directly or through Beneficiary, and shall contain such other terms and
conditions as Beneficiary may deem necessary or appropriate. Such
receiver shall be authorized and empowered to enter upon and take
possession of the Mortgaged Property, including all personal property used
upon or in connection with the Mortgaged Premises and all bank accounts
containing funds associated with the Mortgaged Property, to let the
Mortgaged Property, to manage the Mortgaged Property, to receive all the
rents due or to become due, and apply the rents after payment of all
necessary charges and expenses to reduction of the Indebtedness secured
hereby. At the option of Lender, the receiver shall accomplish such entry
and taking possession of the Property by actual entry and possession or by
notice to Borrower. The receiver so appointed by a court of competent
jurisdiction shall be empowered to issue receiver's certificates for funds
advanced by Lender for the purpose of protecting the value of the
Mortgaged Property as security for the Indebtedness secured hereby. The
amounts evidenced by receiver's certificates shall bear interest at the
Default Rate, as defined in the Note, and may be added to the cost of
redemption if the owners of the Mortgaged Property, Grantor, a junior
lienholder or any other party redeems the Trustee's sale.
V. GRANTOR'S REPRESENTATIONS AND WARRANTIES
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In order to induce Beneficiary to lend the funds evidenced by the Note,
Grantor represents and warrants that:
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A. Accurate Loan Information. All information and financial statements
furnished or to be furnished to Beneficiary by or on behalf of Grantor in
connection with the Indebtedness secured by this Deed of Trust is or at
the time of delivery will be complete and accurate in all material
respects.
B. Valid Title. Grantor is the lawful owner of the Mortgaged Property and
has good right and lawful authority to mortgage and pledge the same.
C. Freedom from Encumbrances. The Mortgaged Property is free from any and
all liens and encumbrances save and except only the Permitted Exceptions,
and Grantor does warrant and will defend title to the Mortgaged Property
against all claims or demand by third parties whatsoever save and except
only the Permitted Exceptions.
D. Maintenance of Lien Priority. Grantor shall take all steps necessary to
preserve and protect the validity and priority of the liens on the
Mortgaged Property created hereby. Grantor shall execute, acknowledge and
deliver such additional documents as Beneficiary may deem necessary in
order to preserve, protect, continue, extend or maintain the liens and
security interests created hereby as first liens on the Mortgaged
Property. All costs and expenses incurred in connection with the
protection, preservation, continuation, extension or maintaining of the
security interest and the liens herein created as valid first and
subsisting liens shall be paid by Grantor.
E. Value of the Mortgaged Property. Grantor acknowledges that the value of
the Mortgaged Property, as established by an appraisal submitted to
Grantor, is substantially in excess of the Indebtedness secured hereby.
Grantor acknowledges but for the Mortgaged Property having a value in
excess of the amount of the Indebtedness, Beneficiary would not make the
loan evidenced by the Note and advance the funds hereunder. Grantor
agrees that Beneficiary shall at all times have the benefit of the
Mortgaged Property as the security for the Indebtedness even though the
value thereof may now or in the future exceed the amount of the
Indebtedness secured hereby.
F. Representations, Warranties and Covenants of a Limited Liability Company
Grantor. Grantor hereby represents, warrants and covenants that:
(1) Grantor is a Colorado limited liability company created under that
certain Articles of Organization dated November 1, 2005 and there are
no amendments thereto and is governed by that certain Operating
Agreement dated November 1, 2005, as amended (collectively, the
"Regulations").
(2) The only Manager of Grantor is Ramtron International Corporation (the
"Manager"), a Colorado corporation, who is the manager of Grantor,
and the only member of Grantor is Manager (being sometimes referred
to as the "Member" or as the "Constituent Member").
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(3) The Manager is authorized to execute and deliver the Note, this
Agreement, and all other documents which Beneficiary may now or from
time to time hereafter require to be executed on behalf of Grantor in
connection with the Note, this Agreement or the Indebtedness,
including but not limited to renewals, extensions, modifications,
increases, consolidations and rearrangements of the Note and this
Agreement, and no signature or any other action of any other person
or entity shall be required to bind Grantor.
(4) Except for Permitted Transfers, Grantor will not permit any interest
of a Member to be sold, transferred, conveyed, encumbered or diluted
or make any modification of the Articles of Organization or the
Regulations which adversely affects Beneficiary.
(5) Grantor is, and shall continue to be, (a) duly organized and existing
under the laws of the State in which it is formed, and (b) duly
qualified to transact business in each State where the conduct of its
business requires it to be qualified.
G. Construction and Materials. Grantor hereby warrants, represents and
covenants that all persons and entities who have provided labor or
materials to or for the benefit of the Mortgaged Property by, through or
under Grantor or otherwise at Grantor's direction or request at any time
prior to the date of this Deed of Trust have been paid in full.
H. Hazardous Waste. Grantor hereby represents and warrants that to the
best knowledge of Grantor, after due and diligent inquiry, Grantor is not
aware of any facts or circumstances which may give rise to any
litigation, proceedings, investigations, citations or notices of
violations resulting from the use, presence, generation, manufacture,
storage, discovery or disposition of, on, under or about the Mortgaged
Property or the transport to or from the Mortgaged Property of any
Hazardous Materials, defined below. Grantor hereby represents and
warrants that the Mortgaged Property is not in violation of and Grantor
covenants and agrees not to use or permit the use of the Mortgaged
Property for any purpose which would be in violation of, any federal,
state or local health or environmental statute, regulation, ordinance or
publication which is presently in effect or that may be promulgated in
the future, as such statutes, regulations, ordinances and publications
may be amended from time to time relating to Hazardous Materials,
including, without limitation, with respect to industrial hygiene or to
health or environmental conditions on, under, or about the Mortgaged
Property (including, but not limited to, soil and ground water
conditions) or with respect to the owner's or occupant's thereof. The
foregoing representations and warranties shall survive foreclosure under
this Deed of Trust and shall constitute continuing representations and
warranties to Beneficiary, its successors and assigns, as to conditions
existing prior to foreclosure or in deed in lieu of foreclosure only.
The term "Hazardous Materials", as used in this Deed of Trust, shall
include but not be limited to:
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(i) petroleum, petroleum based products and oil;
(ii) asbestos of any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment
which contain dielectric fluid containing levels of
polychlorinated biphenyls (sometimes known as a "pcb");
(iii) tanks, whether empty, filled or partially filled with any
substance, material, chemical or other waste;
(iv) any substance, material, chemical or other waste including,
without limitation any explosive, flammable substances, explosives
or radioactive materials, hazardous or toxic waste, hazardous or
toxic materials, hazardous, toxic or radioactive substances,
contaminants or pollutants and any of the preceding which are
defined as or included in the definition of "Hazardous Substance,"
"Hazardous Waste," "Hazardous Material" or "Toxic Substance" or
other similar or related terms under any applicable local, state
or federal statute, regulation, ordinance or publication including
but not limited to:
(1) Resource Conservation and Recovery Act of 1976 (commonly
referred to as the Solid Waste Disposal Act), 42 U.S.C.
Section 6901, et seq.;
(2) Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq.;
(3) Clean Air Act, 42 U.S.C. Section 7401, et seq.;
(4) The Water Pollution and Prevention and Control Act (commonly
referred to as the Clean Water Act) 33 U.S.C. Section 1251,
et seq.;
(5) Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq.;
(6) Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Section 136, et seq.;
(7) Toxic Substances Control Act, 15 U.S.C. Section 2601, et
seq.;
(8) Safe Drinking Water Act, 42 U.S.C. Section 300(f), et seq.;
(9) Colorado Water Quality Control Act, C.R.S. Section 25-8-101,
et seq.;
(10) Colorado Air Pollution Prevention and Control Act, C.R.S.
Section 25-7-101. et seq.;
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(11) Colorado Solid Wastes Disposal Sites and Facilities Laws,
C.R.S. Section 00-00-000, et seq.;
(12) Colorado Hazardous Substances Act, C.R.S. Section 25-5-501,
et seq.;
(13) Colorado Hazardous Substances Incidents Laws, C.R.S. Section
00-00-000, et seq.;
(14) Colorado Hazardous Waste Laws, C.R.S. Section 00-00-000, et
seq.;
(15) Colorado Hazardous Materials Transportation Act, C.R.S.
Section 00-00-000, et seq.;
(16) Colorado Radioactive Waste Disposal, C.R.S. Section 25-11-
201, et seq.; and
(17) Colorado Underground and Aboveground Storage Tank Act, C.R.S.
Section 8-20.5-101, et seq.
as such statutes, regulations, ordinances and publications may be
amended from time to time;
(v) any other material, substance, chemical or other waste, exposure
to which is prohibited, limited or regulated from time to time by
any federal, state or local statute, regulation, ordinance or
publication or may pose a hazard to the health and/or safety of
the occupants of the Mortgaged Property or any other adjacent or
nearby property.
NOTWITHSTANDING ANY NON-RECOURSE LANGUAGE OF THE NOTE OR THIS DEED OF TRUST,
Grantor hereby agrees to INDEMNIFY AND HOLD HARMLESS Beneficiary, its
directors, officers, employees, attorneys, contractors and agents, and any
successors and assigns, their directors, officers, employees, and agents
(individually and collectively the "Indemnitees"), from and against any and
all loss, damage, expense or liability (including reasonable attorneys fees
and investigatory expenses) incurred arising out of the use, occurrence,
generation, storage, transportation or disposal of Hazardous Materials on or
about the Mortgaged Property by Grantor, its present tenants or any future
tenants, any prior owner, operator or tenant of the Mortgaged Property, or any
third party, including, without limitation, (i) all foreseeable and all
unforeseeable consequential damages, directly or indirectly arising out of the
use, occurrence, generation, storage, transportation or disposal of Hazardous
Materials by Grantor, past, present or future tenants, owners or operators of
the Mortgaged Property, or any third party, and (ii) the cost of any required
or necessary repair, cleanup or detoxification, claimed, threatened or
asserted against any such Indemnitee, but such indemnity and hold harmless
shall not apply with respect to any Hazardous Substances which first occurred
on the Mortgaged Property after any foreclosure of this Deed of Trust or
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conveyance in lieu thereof or to the extent that such loss, damage, expense or
liability is caused by or attributable to such Indemnitee's negligence or
willful misconduct. Grantor's obligations pursuant to the foregoing indemnity
and hold harmless shall survive any termination of the estate created by this
Deed of Trust whether as a result of the exercise by Beneficiary of any
default remedies available to it at law or in equity or otherwise. Grantor
acknowledges and agrees that as a condition precedent to making the loan to
Grantor evidenced by the Note secured by this Deed of Trust, Beneficiary has
required that Grantor provide to the Indemnitees the indemnity set forth
herein and that Beneficiary would not consummate the loan without this
indemnity and hold harmless and that the indemnity and harmless contained
herein is a material inducement for Beneficiary's agreement to make the loan.
Further, Grantor agrees that the foregoing indemnification is separate,
independent of and in addition to its undertakings as Grantor under the Note,
as Grantor under this Deed of Trust, as Assignor under the Absolute Assignment
of Leases and Rents and any and all other documents, agreements and
undertakings executed by Grantor in favor of Beneficiary pursuant to the Note.
Grantor agrees that a separate action may be brought to enforce the
provisions of this indemnification and hold harmless, which shall in no way be
deemed to be an action on the Note or under this Deed of Trust, whether or not
Beneficiary would be entitled to a deficiency judgment following a foreclosure
sale of the Mortgaged Property.
I. No District Inclusion. The Mortgaged Premises is not within the
boundaries of any quasi-governmental entity, including without
limitation, any special district or metropolitan district, with the
power to assess taxes or assessments against the Mortgaged Premises,
except as identified in the Permitted Exceptions or as identified on the
tax certificate provided to Lender or its counsel in connection with the
loan evidenced by the Note.
VI. ADDITIONAL COVENANTS OF GRANTOR
------------------------------------
As long as any of the Indebtedness remains unpaid, Grantor covenants and
agrees that:
A. Payment of Indebtedness. Grantor will pay the Indebtedness promptly when
due and payable.
B. Payment of Taxes and Other Assessments. Grantor will pay all taxes,
assessments and other governmental, municipal or other public dues,
charges, fines, or impositions imposed or levied upon the Mortgaged
Property or on the interest created by this Deed of Trust, or any tax or
excise on rents or other tax, however described, assessed or levied by any
state, federal or local taxing authority as a substitute, in whole or in
part, for taxes assessed or imposed on the Mortgaged Property or on the
interest created by this Deed of Trust, and at least ten (10) days before
said taxes, assessments and other governmental charges are due will
exhibit receipts therefor to Beneficiary. If any tax or assessment is
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levied, assessed or imposed on Beneficiary as a legal holder of the Note
or any interest in the documents securing, evidencing or relating to the
Note by any governmental authority, then unless all such taxes are paid by
Grantor as they become due and payable and in the opinion of General
Counsel of Beneficiary, such payment by Grantor is lawful and does not
place Beneficiary in violation of any law, Beneficiary may, at its option,
declare the Indebtedness immediately due and payable, but in this event no
prepayment premium shall be due or payable.
C. Insurance. Grantor shall keep the Mortgaged Property insured against loss
or damage by fire, windstorm, extended coverage perils, flood (in the
event any of the Mortgaged Premises is within a 100-year flood plain and
flood insurance is available pursuant to the United States Flood Disaster
Protection Act of 1973 or any similar or successor statute or successor
governmental authority), vandalism, malicious mischief and such other
hazards, casualties or other contingencies and in such amounts (but in no
event less than the greater of the amount of the Indebtedness from time to
time secured hereby or the full replacement value thereof) as from time to
time may be required by Beneficiary, and maintain rents or rental value
insurance coverage, in an amount at least adequate to cover twelve (12)
months' principal and interest installments on the Note and together with
twelve (12) months' property taxes and insurance premiums, with respect to
the Mortgaged Property covering the risk of loss due to the occurrence of
any of the foregoing hazards, in each case and in such amounts, in such
manner and in such companies as the Beneficiary may approve, and all such
policies shall contain a waiver of subrogation and provide that any losses
payable thereunder shall (pursuant to standard mortgagee clauses without
contribution, including one providing that such insurance as to the
interest of Beneficiary shall not be invalidated by any act or omission or
neglect of Grantor, to be attached to each policy) be payable to
Beneficiary. Grantor shall cause duplicate originals of any and all such
insurance policies to be deposited with Beneficiary. Grantor will also
carry public liability insurance, in such form, amounts and with such
companies as Beneficiary may from time to time reasonably require, with
Beneficiary included thereon as a named insured. Any or all of such
policies may be provided under a blanket policy or policies provided such
blanket policies allocate the amount of insurance required hereunder to
the Mortgaged Property. Grantor shall cause duplicate originals of any
and all such insurance policies to be deposited with Beneficiary, or
certificates of the insurers under such policies evidencing same. At
least ten (10) days prior to the date the premiums on each such policy or
policies shall become due and payable, Grantor shall furnish to
Beneficiary evidence of the payment of such premiums. Each of such
policies shall contain an agreement by the insurer that the same shall not
be canceled or modified without at least ten (10) days' prior written
notice to Beneficiary. In the event of loss under any such policy,
Grantor shall give immediate written notice to the insurance carrier and
to Beneficiary. With respect to all insurance policies except public
liability insurance, Beneficiary is hereby authorized, but not required,
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on behalf of and at the expense of Grantor, whether or not an Event of
Default has then occurred, to make proof of loss, to collect for, adjust
or compromise any losses under any insurance policy on the Mortgaged
Property, to appear in and prosecute any action arising from any of such
insurance policies, and to apply, at Beneficiary's option, the loss
proceeds (less expenses of collection) on the Indebtedness, in any order
and whether due or not, or to the restoration of the Mortgaged Property,
or to be released to Grantor, but any such application or release shall
not cure or waive any default. In case of a sale pursuant to the
foreclosure provision hereunder, or any conveyance of all or any part of
the Mortgaged Property in extinguishment of the Indebtedness, complete
title to all insurance policies on or related to the Mortgaged Property,
and the unearned premiums of same shall pass to and vest in the purchaser
or grantee of the Mortgaged Property.
D. Escrow for Taxes and Insurance. Grantor shall pay, in addition to the
installments payable under the Note, on the same day as such installments
are due and payable, a sum equal to 1/12th of the estimated annual taxes,
hazard and rental insurance premiums, and special assessments, if any,
next due on the Mortgaged Property. If the amount so paid is not
sufficient to pay such taxes, insurance premiums and assessments when due,
then Grantor will immediately deposit with Beneficiary amounts sufficient
to pay the same. Funds deposited by Grantor pursuant to this provision
shall be used to pay such taxes, insurance premiums and assessments when
due, provided that Grantor has furnished Beneficiary with all tax
statements, premium notices and other such notices at least thirty (30)
days prior to the date that any such taxes, premiums and assessments may
be due. If there is a default under the provisions of the Note or of this
Deed of Trust, Beneficiary may elect, at any time after default, to apply
the funds accumulated under this provision against the Indebtedness in any
manner or order. No interest shall accrue or be allowed on any payments
under the provisions of this paragraph. Beneficiary shall not be required
to deposit or hold monies in an account special or separate from its
general funds. Grantor expressly releases Beneficiary from any liability
to Grantor arising out of the maintenance by Beneficiary of an escrow as
provided herein or for payment of any sums out of such escrow. Grantor
further indemnifies Beneficiary against claims arising out of payment of
taxes or insurance premiums where Grantor has failed to provide
Beneficiary with tax statements and premium notices as required hereby.
The maintenance by Beneficiary of an escrow for taxes and insurance shall
not relieve Grantor of its obligations under this Deed of Trust respecting
taxes and insurance on the Mortgaged Property.
E. Waste, Demolition, Alteration or Replacement. Grantor will cause the
Mortgaged Property and every part thereof to be maintained, preserved and
kept in safe and good repair, working order and condition, will not commit
or permit waste thereon, will not remove, demolish or alter the design or
structural character of any building now or hereafter erected on the
Mortgaged Premises, without the prior written consent of Beneficiary, and
will comply with all laws and regulations of any governmental authority
Page-13
with reference to the Mortgaged Property and the manner and use of the
same, and will from time to time make all necessary and proper repairs,
renewals, additions and restorations thereto so that the value and
efficient use thereof shall be fully preserved and maintained. Grantor
agrees not to remove any of the fixtures or personal property owned by
Grantor included in the Mortgaged Property without the prior written
consent of Beneficiary and unless immediately replaced with like property
of at least equal value. Grantor shall act as necessary to continue or
cause the continuance of such income producing activity as is presently
conducted upon or contemplated for the Mortgaged Property.
F. Inventory of Personal Property. Upon request of Beneficiary, Grantor
shall deliver to Beneficiary an inventory describing and showing the make,
model, serial number and location of all fixtures and personal property
owned by Grantor and from time to time used in the management, maintenance
and operation of the Mortgaged Property (other than inventory or property,
if any, expressly excluded from the operation of this Deed of Trust by
separate written agreement) with a certification by Grantor that said
inventory is a true and complete schedule of such fixtures and personal
property owned by Grantor and used in the management, maintenance and
operation of the Mortgaged Property and that such items specified in the
inventory constitute all of the fixtures and personal property required in
the management, maintenance and operation of the Mortgaged Property and
that such items are owned by Grantor free and clear of security interests,
liens, conditional sales contracts or title retention arrangements.
Grantor hereby grants to Beneficiary a security interest in all such items
of fixtures and personal property owned by Grantor under the terms and
conditions of this Deed of Trust.
G. Financial Statement. Grantor will furnish to Beneficiary within one
hundred twenty (120) days after the first day of each and every January
(the "Financial Statement Due Date") until the Indebtedness secured hereby
has been fully paid, the annual audited financial statements of Grantor
covering the operation of the Mortgaged Property, each such statement
prepared in accordance with generally accepted accounting principles and
each such statement prepared and signed by an independent certified public
accountant approved by and acceptable to Beneficiary. The financial
statements shall contain the Grantor's certification that, during the
period of time covered by the particular statement, to Grantor's
knowledge,(i) no activity has been conducted upon the Mortgaged Property
in violation of any state, federal or local law, ordinance or regulation
pertaining to Hazardous Materials, industrial hygiene or environmental
conditions, and (ii) the Mortgaged Property complies with the Americans
With Disabilities Act.
If Grantor does not deliver the financial statements as and when required
by this paragraph, there shall be added to the Indebtedness and Grantor
agrees to pay upon demand Two Hundred Dollars ($200.00) for each calendar
month or part thereof following the Financial Statement Due Date until the
required financial statements are delivered to Beneficiary.
Page-14
H. Restrictions upon Sale, Transfer or Mortgaging the Mortgaged Property or
the Interest in Grantor. Grantor acknowledges that Beneficiary is relying
on the credit worthiness and skill of Grantor in advancing sums secured
hereby. Except for a natural person's transfer by will or applicable state
intestacy laws (collectively, together with any other matters specifically
defined below, "Permitted Transfers"): (i) if the Grantor should sell,
trade, convey, transfer, mortgage, assign, exchange, pledge or encumber
(including, without limiting these provisions or any similar references in
this Deed of Trust, the granting of a security interest in) all or any
part of the Mortgaged Property, or any interest of Grantor therein,
absolutely or as security for a debt or other obligation, whether done in
a direct or indirect method or enter into any contractual arrangements to
do so, or (ii) if a shareholder, partner, member, trustee or beneficiary
of Grantor (sometimes, a "Tier Two Owner") or if any shareholder, partner,
member, trustee or beneficiary of any shareholder, partner, trustee or
beneficiary of a Tier Two Owner (any and all of the preceding a
"Constituent Owner") should sell, trade, convey, transfer, mortgage,
assign, exchange, pledge or encumber (including, without limiting these
provisions or any similar references in this Deed of Trust, the granting
of a security interest in) all or any part of its interest in Grantor or
if such shareholder, partner, member, trustee or beneficiary in or of
Grantor shall otherwise be diluted, or (iii) if Grantor shall in any way,
voluntarily or involuntarily be divested of title or of any interest in
the Mortgaged Property, then the Beneficiary, at its option, may elect to
accelerate the maturity of the Note and declare the entire amount of the
Indebtedness immediately due and payable whereupon Grantor shall have
thirty (30) days to pay the full sum of the Indebtedness including,
without limitation, principal and interest, whether or not any such sale,
trade, conveyance, transfer, mortgage, assignment, exchange, pledge, or
encumbrance might diminish the value of the security for the Indebtedness
or increase the likelihood of an Event of Default or increase the
likelihood of the Beneficiary having to resort to any other security for
the Indebtedness after default or add or remove liability of any party for
payment or performance of the Indebtedness. Grantor further agrees that
the foregoing restriction shall be effective and remain in full force and
effect throughout the term of this Deed of Trust and shall be applicable
to Grantor, each shareholder, partner, member, trustee and beneficiary and
each Constituent Owner and their respective heirs, executors,
administrators, successors and assigns. The consent by the Beneficiary to
any one such sale, trade, conveyance, transfer, mortgage, assignment,
exchange, pledge, or encumbrance (one or more of the preceding a
"Transaction") shall not waive or forfeit the right of Beneficiary to
elect to accelerate the Indebtedness to maturity as to any other
Transaction. Grantor further covenants and agrees to give written notice
to Beneficiary in the event there occurs any Transaction which would
violate the terms and conditions of this provision. The term
"Transaction" shall include any voluntary or involuntary act or omission
of Grantor. Nothing herein contained shall prevent Beneficiary from
accelerating the Note at any time in the event Grantor enters into such a
transaction and does not notify Beneficiary of same. The Grantor may
request Beneficiary to waive the right to declare the entire amount of the
Indebtedness immediately due and payable and Beneficiary may, in its
absolute discretion, consent or refuse to consent to the Transaction.
Page-15
No Transaction pursuant to the foregoing provisions of this Subsection H,
defined as a Permitted Transfer or described in Section 8.l(5) below shall
in any way release Grantor or any other party liable on any of the
Indebtedness or liable under any document securing, evidencing or relating
to the Indebtedness from any such liability unless expressly provided in
this Deed of Trust.
I. Delivery of Substitute Note. Grantor will, if the Note is mutilated,
destroyed, lost or stolen, deliver to Beneficiary, in substitution
therefor, a new promissory note containing the same terms and conditions
as the Note with a notation thereon of the unpaid principal and accrued
but unpaid interest. Grantor shall be furnished with satisfactory
evidence of the mutilation, destruction, loss or theft of the Note, and
also such security or indemnity as may be reasonably requested by Grantor;
provided, however, that if the original Beneficiary named herein is the
then Beneficiary under this Deed of Trust, an unqualified indemnity from
the original Beneficiary named herein shall be deemed to be satisfactory
security or indemnification.
J. Compliance with Covenants, Conditions, Restrictions and Recorded
Documents. Grantor shall, and shall cause the Mortgaged Property, to
fully and timely comply with all restrictions covenants, conditions and
agreements benefiting, burdening or imposed on the Mortgaged Property or
any portion thereof or the owner of all or such portion of the Mortgaged
Property.
K. Patriot Act.
(1) As of the date of this Deed of Trust, Grantor is and, during the term
of this Deed of Trust shall remain, in full compliance with all the
applicable laws and regulations of the United States of America that
prohibit, regulate or restrict financial transactions, including but
not limited to, conducting any activity or failing to conduct any
activity, if such action or inaction constitutes a money laundering
crime, including any money laundering crime prohibited under the
Money Laundering Control Act, 18 U.S.C. 1956, 1957, and the Bank
Secrecy Act, 31 U.S.C. 5311 et seq. and any amendments or successors
thereto and any applicable regulations promulgated thereunder.
(2) Grantor represents and warrants that: (i) neither it, nor any of its
owners, or any officer, director or employee, is named as a
"Specially Designated National and Blocked Person" as designated by
the United States Department of the Treasury's Office of Foreign
Assets Control or as a person, group, entity or nation designated in
Presidential Executive Order 13224 as a person who commits, threatens
to commit, or supports terrorism; (ii) it is not owned or
controlled, directly or indirectly, by the government of any country
that is subject to a United States Embargo; and (iii) it is not
acting, directly or indirectly, for or on behalf of any person,
group, entity or nation named by the United States Treasury
Page-16
Department as a "Specially Designated National and Blocked Person,"
or for or on behalf of any person, group, entity or nation designated
in Presidential Executive Order 13224 as a person who commits,
threatens to commit, or supports terrorism; and that it is not
engaged in this transaction directly or indirectly on behalf of, or
facilitating this transaction directly or indirectly on behalf of,
any such person, group, entity or nation.
(3) Grantor acknowledges that it understands and has been advised by
legal counsel on the requirements of the applicable laws referred to
above, including the Money Laundering Control Act, 18 U.S.C. 1956,
1957, the Bank Secrecy Act, 31 U.S.C. 5311 et seq.
VII. [INTENTIONALLY LEFT BLANK]
--------------------------------
VIII. EVENTS OF DEFAULT
------------------------
8.1 Acts Constituting Default. Grantor will be in default under this Deed of
Trust upon the happening of any of the following events or conditions, or the
happening of any other Event of Default as defined elsewhere in this Deed of
Trust (herein collectively referred to as an "Event of Default"):
(1) Grantor fails to make when due any payment of principal or interest
or installment of principal and interest under the Indebtedness.
(2) Grantor fails to keep or perform any of the covenants, conditions or
stipulations contained in this Deed of Trust, the Note or in any
other documents securing, evidencing or relating to the Indebtedness
other than any event or condition specified in Section 8.1(1),
8.1(3), 8.1(4), 8.1(5), 8.1(6), 8.1(7) and 8.1(8), and such failure
continues for thirty (30) days after and receipt by Grantor of
written notice of such failure or default.
(3) Any warranty or representation made in this Deed of Trust by Grantor
is determined by Beneficiary to be untrue in any material respect.
(4) Any person, corporation or other entity that (a) owns all or any
part of the Mortgaged Property, (b) is liable for the payment of all
or any part of the Indebtedness, or (c) is a guarantor of all or any
part of the Indebtedness (i) admits in writing its inability to pay
its debts generally as they become due, (ii) files a petition or
answer in bankruptcy as a Debtor or seeking reorganization or an
arrangement or otherwise to take advantage of any State or Federal
bankruptcy or insolvency law, (iii) makes an assignment for the
benefit of creditors, (iv) files a petition for or consents to the
appointment of a receiver for its assets or any part thereof, or (v)
without its consent has a petition filed in any bankruptcy or
insolvency proceeding or an order, decree or judgment entered by a
Page-17
court of competent jurisdiction appointing a receiver of the
Mortgaged Property or approving a petition filed against it seeking
reorganization or an arrangement of it or its assets or debts under
any bankruptcy or insolvency law and such petition, order, decree or
judgment is not dismissed, vacated, set aside or stayed within sixty
(60) days from the date of entry.
(5) Except for Permitted Transfers, Grantor sells, trades, conveys,
transfers, mortgages, assigns, exchanges, pledges or encumbers
(including, without limiting these provisions or any similar
references in this Deed of Trust, the granting of a security
interest in) the Mortgaged Property, the Collateral or any portion
thereof or interest therein, or, except for Permitted Transfers,
Grantor or any shareholder, partner, member, trustee or beneficiary
of Grantor or a Constituent Owner sells, trades, conveys, transfers,
mortgages, assigns, exchanges, pledges or encumbers (including,
without limiting any of the provisions of this subparagraph, the
granting of a security interest in) any part of its interest in
Grantor or any Constituent Owner, except for Permitted Transfers, or
any such event occurs involuntarily to Grantor or such shareholder,
partner, member, trustee or beneficiary of Grantor or any
shareholder, partner, member, trustee or beneficiary of any
Constituent Owner, all without the prior written consent of
Beneficiary.
(6) The authority and right of Grantor to do business in the State of
Colorado is terminated, withdrawn, cancelled or modified.
(8) (7) The Member ceases to be the sole member of Grantor.
IX. RIGHTS OF BENEFICIARY UPON DEFAULT
---------------------------------------
9.1 Acceleration of Indebtedness. Upon occurrence of an Event of Default or
at any time thereafter, Beneficiary may at its option and without demand or
notice to Grantor, accelerate the maturity of the Note and declare the
Indebtedness secured hereby immediately due and payable. Unless otherwise
provided herein, Grantor hereby waives presentment for payment, protest and
demand, notice of protest, demand, dishonor and default, notice of intent to
declare the Indebtedness immediately due and payable and notice of the
declaration that the Indebtedness is immediately due and payable, and any and
all rights Grantor may have to a hearing before any judicial authority prior
to the exercise by Beneficiary of any of its rights under this Deed of Trust
or any other agreements securing or executed in connection with the
Indebtedness, all to the extent authorized by law. Grantor represents and
warrants that the transaction contemplated herein and in the Loan Documents is
solely a commercial transaction, and, as such, the acceleration of the
Indebtedness upon an Event of Default or an accelerating transfer is not
within the scope of the restrictions on acceleration of indebtedness contained
in Colo. Rev. Stat. Section 00-00-000.
Page-18
9.2 Operation of Property by Trustee. Upon the occurrence of an Event of
Default, or at any time thereafter, in addition to all other rights herein
conferred on the Trustee, the Trustee (or any person, firm or corporation
designated by the Trustee) may, but will not be obligated to, enter upon and
take possession of any or all of the Mortgaged Property, exclude Grantor
therefrom, and hold, use, administer, manage and operate the same to the
extent that Grantor could do so. If the Mortgaged Property includes any type
of business enterprise, the Trustee may operate and manage such business
without any liability of Beneficiary to Grantor resulting therefrom (excepting
failure to use ordinary care in the operation and management of the Mortgaged
Property); and the Trustee or Trustee's designee may collect, receive and
receipt for all proceeds accruing from such operation and management, and, at
Grantor's expense, make repairs and purchase needed additional property, and
exercise every power, right and privilege of Grantor with respect to the
Mortgaged Property. When and if the expenses of such operation and management
have been paid and the Indebtedness has been paid, the Mortgaged Property
shall be returned to Grantor (providing there has been no foreclosure sale).
This provision is a right created by this Deed of Trust and cumulative of, and
is not in any way to affect, the right of the Beneficiary to the appointment
of a receiver given the Beneficiary by law.
9.3 Judicial Proceedings. Upon the occurrence of an Event of Default, or at
any time thereafter, or upon the breach of any covenant, term or condition
herein contained, Beneficiary, in lieu of or in addition to causing the
Trustee to exercise the power of sale hereafter given, may proceed by suit for
a foreclosure of its lien on the Mortgaged Property, or to xxx Grantor for
damages on, arising out of said default or breach, or for specific performance
of any provision contained herein, or to enforce any other appropriate legal
or equitable right.
9.4 Foreclosure Sale.
(1) Power of Sale. Upon the occurrence of any Event of Default, the
Beneficiary is authorized and empowered, without further notice, to
file with the Trustee, a Notice of Election and Demand for Sale, in
writing, as provided by law. After such filing, the Trustee may
lawfully foreclose and shall foreclose the lien of this Deed of
Trust, and sell and dispose of the Mortgaged Property en masse or in
separate parcels (as the Beneficiary may elect) and all the right,
title, and interest of the Grantor therein, at a public auction at
any place then authorized by law as may be specified in the notice
of such sale, for the highest and best price (the "Trustee's Sale"),
four (4) weeks' public notice having previously been given of the
time and place of such sale by advertisement, weekly, in a newspaper
of general circulation at the time published in the City of Colorado
Springs, County of El Paso, State of Colorado, or upon such other
notice as may then be required by law. The Trustee shall issue,
execute, and deliver a Certificate of Purchase, a Trustee's Deed
(which may be in the ordinary form of conveyance), or a Certificate
of Redemption in the manner provided by law to the party entitled
Page-19
thereto. The Trustee shall apply the proceeds or avails of the
Trustee's Sale first to pay all reasonable fees, charges, costs of
conducting the Trustee's Sale and advertising the Mortgaged
Property, and attorneys' fees as herein provided, second to pay to
the Beneficiary the then outstanding amount of the Indebtedness
hereby secured with interest at the rate set forth in the applicable
Note, and third to the Grantor. The Beneficiary may purchase all or
any part of the Mortgaged Property at the Trustee's Sale. Any
purchaser at the Trustee's Sale shall not be responsible for the
application of the purchase money. In the event of any express
conflict between the provisions of this Deed of Trust and the
provisions of the Colorado Revised Statutes, the provisions of the
Colorado Revised Statutes shall apply.
(2) Judicial Action. Upon the occurrence of any Event of Default, the
Beneficiary may bring an action in any court of competent
jurisdiction to foreclose this Deed of Trust or to specifically
enforce any of the covenants and agreements hereof or any other Loan
Document, or in aid of the execution of any power granted in this
Deed of Trust, or for damages.
(3) Receiver. Upon the occurrence of any Event of Default, the
Beneficiary shall have the right to obtain appointment of a
receiver by any court of competent jurisdiction without notice to
Grantor. By execution of this Deed of Trust, the Grantor
irrevocably consents to the ex parte appointment of such receiver.
Such appointment shall be as a matter of right and without regard to
or the necessity to disprove the adequacy of the security for the
Indebtedness hereby secured or the solvency of Grantor or any other
person liable for the payment of the Indebtedness hereby secured,
and Grantor and each other person so liable waives, or shall be
deemed to have waived, such necessity and consent and shall be
deemed to have consented to such appointment. Any order appointing
such receiver may preclude any further transfer of an interest in,
or encumbrance of, the Mortgaged Property without the consent of the
receiver, may require that the Grantor turn over to the receiver any
and all funds, documents, records and reports in its possession
relating to the Mortgaged Property upon demand, shall permit the
receiver to market the Mortgaged Property upon such terms and
conditions as the receiver may deem appropriate, either directly or
through the Beneficiary, and shall contain such other terms and
conditions as the Beneficiary may deem necessary or appropriate.
Such receiver shall be authorized and empowered to enter upon and
take possession of the Mortgaged Property, including all personal
property used upon or in connection with the Mortgaged Premises and
all bank accounts containing funds associated with the Mortgaged
Property, to let the Mortgaged Property, to manage the Mortgaged
Property, to receive all the Rents due or to become due, and apply
the Rents after payment of all necessary charges and expenses to
reduction of the indebtedness hereby secured. At the option of the
Page-20
Beneficiary, the receiver shall accomplish such entry and taking
possession of the Mortgaged Property by actual entry and possession
or by notice to the Grantor. The receiver so appointed by a court
of competent jurisdiction shall be empowered to issue receiver's
certificates for funds advanced by the Beneficiary for the purpose
of protecting the value of the Mortgaged Property as security for
the indebtedness hereby secured. The amounts evidenced by
receiver's certificates shall bear interest at the Default Rate, as
defined in the Note, and may be added to the cost of redemption if
the owners of the Mortgaged Property, the Grantor, a junior
lienholder or any other party redeems the Trustee's Sale.
(4) Rate After Sale. If the Property is sold at a Trustee's Sale, the
sum for which the Mortgaged Property was sold shall, for purposes of
redemption (pursuant to Colo. Rev. Stat. Section 00-00-000 or the
corresponding provisions of any future law), bear interest from the
date of the Trustee's Sale until paid at the lesser of (a) the
maximum rate permitted by applicable law or (b) the Default Rate.
(5) Costs and Expenses in the Event of Foreclosure. If this Deed of
Trust is foreclosed by Trustee, Trustee shall allow a reasonable
amount of attorneys' fees for services rendered in the supervision
of such foreclosure proceedings as a part of the cost of
foreclosure. If the foreclosure proceedings are made through court
proceedings, attorneys' fees in an amount determined by the court to
be reasonable shall be taxed by the court as a part of the cost of
such foreclosure proceedings.
X. USE OF INSURANCE PROCEEDS
-----------------------------
10.1 Holding of Proceeds. Notwithstanding the provisions of Article VI,
Section C, any insurance proceeds paid to Beneficiary will be first applied in
payment of the expenses, if any, incurred by Beneficiary in the collection of
said insurance proceeds and the balance, if any, will be held and disbursed by
Beneficiary in accordance with the following provisions:
A. (1) Should there exist an Event of Default at the time of the casualty or
should there occur at any time thereafter an Event of Default; (2) should
either one or more of the tenants of any portion of the Mortgaged Property
in excess of 12,000 square feet in the aggregate or the Grantor terminate
a lease as a result of said damage, or, whether or not a result of such
damages, at any time prior to the commencement of reconstruction; (3)
should any insurance proceeds be remaining after the completion of all
restoration work; or (4) should Grantor fail to comply with the
requirements for disbursing the insurance proceeds, then in any of the
said events, Beneficiary may, at its option, apply the insurance proceeds
on the Indebtedness, in any order and whether due or not, or to the
restoration of the Mortgaged Property, or to be released to Grantor, but
any such application or release shall not cure or waive any default.
Page-21
B. If the insurance proceeds have not been disbursed under the provisions of
subparagraph A hereof, or if under subparagraph A Beneficiary elects to
permit the insurance proceeds to be used for restoration of the Mortgaged
Property, the proceeds will be held and disbursed as follows:
(1) Should the insurance proceeds be less than $25,000.00, Grantor shall
immediately commence and complete the work of restoring the damaged
property and Beneficiary will disburse the portion of the insurance
proceeds to pay actual costs to replace, repair and restore the
damaged property to Grantor upon (i) completion of the restoration
work to a condition satisfactory to Beneficiary, (ii) submission of a
written report by Grantor that all restoration work has been
completed, and (iii) receipt by Beneficiary of such evidence as
Beneficiary may require that all mechanics and materialmen performing
work or supplying materials for the restoration work have been fully
paid.
(2) Should the insurance proceeds equal or be in excess of $25,000.00,
but less than $100,000.00, Grantor shall cause plans and
specifications ("Plans") for the restoration of the damaged property
to be submitted to Beneficiary for approval. Upon receipt of
Beneficiary's approval, Grantor shall forthwith commence and complete
the restoration of the damaged property in accordance with the
approved Plans. Beneficiary will disburse the portion of the
insurance proceeds to pay the actual costs to repair and restore the
damaged property to Grantor upon (i) completion of the restoration
work to a condition satisfactory to Beneficiary, (ii) submission of a
written report by Grantor that all restoration work has been
completed, and (iii) receipt by Beneficiary of such evidence as
Beneficiary may require that all mechanics and materialmen performing
work or supplying materials for the restoration work have been
completely paid.
(3) If the insurance proceeds are equal or in excess of $100,000.00: (a)
Plans for the restoration of the damaged property and a cost estimate
will both be prepared by an architect employed by Grantor and
acceptable to Beneficiary. The Plans and cost estimates will be
submitted to Beneficiary for approval. Upon receipt of Beneficiary's
approval, Grantor will promptly commence and diligently pursue the
restoration work in accordance with the approved Plans. (b) If prior
to the commencement of, or at any time during the restoration work,
Beneficiary shall determine, in its good faith judgment, that the
total cost of the restoration work shall exceed the balance of the
insurance proceeds held in its possession, Grantor shall immediately
pay, in cash, to Beneficiary the amount of such excess costs. Until
the amount of said excess costs is paid to Beneficiary, Beneficiary
shall not be obligated to disburse any of the insurance proceeds held
by it. The insurance proceeds and the amount of excess costs paid by
Grantor are hereinafter called "Construction Funds". The amount of
such excess costs paid by Grantor shall be disbursed prior to the
Page-22
disbursement of any of the insurance proceeds held by Beneficiary.
(c) The Construction Funds will be made available to Grantor as
restoration repair work progresses pursuant to certificates of the
architect approved by Beneficiary, submitted not more than once every
thirty (30) days. There shall be delivered to Beneficiary such other
evidences as Beneficiary may reasonably request, from time to time,
during the restoration work, as to the progress of the work, the
compliance with the approved Plans, the total cost of restoration
work to date of request, the total cost needed to complete the
restoration work, lien waivers or evidence of no liens against the
Mortgaged Property. If at any time during the course of the
restoration work, Beneficiary learns of facts concerning the
restoration work which is materially adverse to Beneficiary, or
payment or nonpayment of mechanics and materialmen, or inaccuracy of
any information furnished with respect to it, Beneficiary may
withhold the disbursement of funds until such time as it is prudent
to continue to disburse the Construction Funds or may determine not
to make any further disbursements of the Construction Funds and
instead to apply all such funds remaining to the payment of the
Indebtedness then outstanding, whether due or not at such time,
without any prepayment premium, and in such order as determined by
Beneficiary.
C. Beneficiary shall not be required to hold any funds received by it
described in this Article X in any account special or separate from
Beneficiary's general account. No such funds shall be required to be
placed in any interest bearing account, and any interest earned thereon
shall constitute additional insurance proceeds to be applied as provided
in this Deed of Trust.
XI. SPECIAL CONDITIONS
-----------------------
This document is expressly made subject to the following special conditions.
11.1 Notices. Any notice, demand, statement, request or consent made
hereunder or under any Loan Document shall be effective and valid only if in
writing, referring to this Deed of Trust or the applicable Loan Document,
signed by the party giving such notice, and delivered either personally to
such other party, or sent by nationally recognized overnight courier delivery
service or by certified mail of the United States Postal Service, postage
prepaid, return receipt requested, addressed to the other party as follows (or
to such other address or person as either party or person entitled to notice
may be notice to the other party specify);
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To Beneficiary:
--------------
AMERICAN NATIONAL INSURANCE COMPANY
Attn: Mortgage and Real Estate Investment Department
Xxx Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
To Grantor:
----------
RAMTRON LLC
Attn: Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Unless otherwise specified, notices shall be deemed given as follows: (i) if
delivered personally, when delivered, (ii) if delivered by nationally
recognized overnight courier delivery service, the earlier of actual receipt
or on the business day following the day such material is sent, or (iii) if
delivered by certified mail, the earlier of actual receipt or on the third
(3rd) day after the same is deposited with the United States Postal Service as
provided above.
11.2 Waiver and Election. The exercise of any right or remedy by Beneficiary
shall not be considered as a waiver of any right or remedy nor shall any
acceptance by Beneficiary of Grantor's partial payment or partial performance
of obligations under the Note or hereunder, nor shall any failure or delay by
Beneficiary in exercising any of its rights or remedies as to any Event of
Default which may occur, operate as a waiver by Beneficiary of its rights or
remedies with respect to the occurrence of any other or further Event of
Default or to the recurrence of the same Event of Default. The filing of a
suit to foreclose the Deed of Trust granted by this Deed of Trust either on
any matured portion of the Indebtedness or for the whole of the Indebtedness,
shall never be considered an election so as to preclude foreclosure under
power of sale after a dismissal of the suit; nor shall the filing of the
necessary notices for foreclosure, as provided in this Deed of Trust, preclude
the exercise by Beneficiary of any other right or remedy including, without
limitation, the prosecution of a later suit thereon.
11.3 Intentionally deleted.
11.4 Usury. Notwithstanding any provision in this Deed of Trust to the
contrary, it is expressly provided that in no case or event should the
aggregate amounts, which by applicable law are deemed to be interest with
respect to this Deed of Trust, the Note or any other Loan Document securing,
evidencing or relating to the Note ever exceed the "Maximum Nonusurious Rate"
(as defined in the Note). In this connection, it is expressly stipulated and
agreed that it is the intention of Beneficiary and the Grantor to contract in
strict compliance with applicable usury laws of the State of Colorado and/or
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of the United States (whichever permits the higher rate of interest) from time
to time in effect. Nothing in this Deed of Trust, the Note or any other Loan
Document securing, evidencing or relating to the Note shall ever be construed
to create a contract to pay, as consideration for the use, forbearance or
detention of money, interest at a rate in excess of the Maximum Nonusurious
Rate. If under any circumstances the aggregate amounts contracted for,
charged or paid with respect to the Note which by applicable law are deemed to
be interest, would produce an interest rate greater than the Maximum
Nonusurious Rate, the Grantor and any other person obligated to pay the Note,
stipulates that the amounts will be deemed to have been paid, charged or
contracted for as a result of an error on the part of Grantor, any other
person obligated for the payment of the Note and the Beneficiary and upon
discovery of the error or upon notice thereof from the Grantor or the party
making such payment, the Beneficiary or the party receiving such excess
payment shall, at its option, refund the amount of such excess payment or
credit the excess payment against any other amount due under the Note. In
addition, all sums paid or agreed to be paid to the holder of the Note for the
use, forbearance or detention of monies shall be, to the extent permitted by
applicable law, amortized, prorated, allocated and spread through the term of
the Note.
11.5 Enforceability. If any provision hereof is presently or at any time
becomes invalid or unenforceable, the other provisions hereof shall remain in
full force and effect, and the remaining provisions hereof shall be construed
in favor of the Trustee and the Beneficiary to effectuate the provisions
hereof.
11.6 Application of Payments. If the lien or liens created by this Deed of
Trust are invalid or unenforceable as to any part of the Indebtedness or if
such lien or liens are invalid or unenforceable as to any part of the
Mortgaged Property, the unsecured or partially unsecured portion of the
Indebtedness shall be completely paid prior to the payment of the remaining
and secured or partially secured portion of the Indebtedness and all payments
made on the Indebtedness, whether voluntary or under foreclosure or other
enforcement action or procedures, shall be considered to have been first paid
on and applied to the full payment of that portion of the Indebtedness which
is not secured or not fully secured by the lien or liens created herein.
11.7 Meaning of Particular Terms. Whenever used, the singular number shall
include the plural, the plural the singular and the use of any gender shall
include all genders. The words "Grantor" and "Beneficiary" shall include their
heirs, executors, administrators, successors and assigns, and the word
"Trustee" shall include his or her successors and substitute trustees. For
convenience of drafting the following groups of words, and derivations
thereof, are used interchangeably and any reference to one or more shall
include the others notwithstanding anything seemingly to the contrary: (a) the
words "act", "omission" and "occurrence"; and (b) "instrument" and "document".
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11.8 Advances by Beneficiary. If Grantor shall fail to comply with the
provisions with respect to the securing of insurance, payment of taxes,
assessments, and other charges, the keeping of the Mortgaged Property in
repair, or any other term or covenant herein contained, Beneficiary may, but
shall not be obligated to, incur such expenses as deemed necessary by
Beneficiary, and make advances to perform such provisions, terms or covenants,
and where necessary enter the Mortgaged Property for the purpose of performing
any such term or covenant. Beneficiary is further empowered, but not
obligated, to make advances for any expenditure deemed advisable by
Beneficiary for the preservation of the Mortgaged Property or for the
continuation of the operation thereof. Grantor agrees to repay all sums so
advanced or expended, and all expenses incurred by Beneficiary in connection
with the exercise of any of its rights under this Deed of Trust, upon demand,
with interest from the date such advances or expenditures are made, determined
on the same basis as matured principal in the Note and all sums so advanced or
expended, with interest, shall be secured hereby.
11.9 Release or Extension by Beneficiary. Beneficiary, without notice, may
release any part of the Mortgaged Property or any person liable for the
Indebtedness without in any way affecting the liens hereof on any part of the
Mortgaged Property not expressly released and may agree in writing with any
party with an interest in the Mortgaged Property to extend the time for
payment of all or any part of the Indebtedness or to waive the prompt and full
performance of any term, condition or covenant of any document securing,
evidencing or relating to the Indebtedness.
11.10 Partial Payments. Acceptance by Beneficiary of any payment of less
than the amount due on the Indebtedness shall be deemed acceptance on account
only and the failure to pay the entire amount then due shall be and continue
to be a default; and at any time thereafter and until the entire amount due on
the Indebtedness has been paid, Beneficiary shall be entitled to exercise all
rights conferred on it by the terms of this Deed of Trust upon the occurrence
of an Event of Default.
11.11 Titles not to be Considered. All section, subsection, paragraph or
other titles contained in this Deed of Trust are for reference purposes only
and this Deed of Trust shall be construed without reference to said titles.
11.12 Construction of Deed of Trust. This Deed of Trust may be construed as
a mortgage, deed of trust, chattel mortgage, conveyance, assignment, security
agreement, pledge, financing statement, hypothecation or contract, or any one
or more of them, in order fully to effectuate the lien hereof and the purposes
and agreements herein set forth.
11.13 Additional Taxes and Indemnification. Grantor agrees that if any
state, federal or municipal government, or any of its subdivisions having
jurisdiction, shall levy, assess or charge any tax, assessment or imposition
upon this Deed of Trust or the credit or Indebtedness secured hereby or the
Note or the interest of Beneficiary in the Mortgaged Premises or upon
Beneficiary by reason of any of the foregoing (excepting therefrom any income
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tax on interest payments on the principal portion of the Indebtedness secured
hereby) then, Grantor shall pay all such taxes to or for Beneficiary as they
become due and payable, and provided further that in the event of passage of
any law or regulation permitting, authorizing or requiring the tax, assessment
or imposition to be levied, assessed or charged, which law or regulation
prohibits Grantor from paying the tax, assessment or imposition, to or for
Beneficiary, then all sums hereby secured shall become immediately due and
payable at the option of the Beneficiary. Grantor agrees to exhibit to
Beneficiary at any time upon request, official receipts showing payment of all
taxes, assessments and charges which Grantor is required or elects to pay
hereunder. Grantor agrees that if the United States Government or any
department or bureau thereof shall at any time require revenue stamps to be
affixed to the Note or this Deed of Trust, Grantor will upon demand pay for
stamps in the required amount and deliver them to Beneficiary and Grantor
agrees to INDEMNIFY and HOLD HARMLESS Beneficiary against loss, damage,
liability or expense (including reasonable attorney's fees and investigatory
expenses)on account of such revenue stamps, whether such loss, damage,
liability or expense arises before or after payment of the Note and any
termination of the estate created by this Deed of Trust whether as a result of
the exercise by Beneficiary of any default remedies available to it at law or
in equity or otherwise; such indemnity and hold harmless shall not apply to
the extent that such loss, damage, expense or liability is caused by or
attributable to Beneficiary's negligence or willful misconduct.
11.14 Indemnification. GRANTOR AGREES TO INDEMNIFY AND HOLD HARMLESS
BENEFICIARY FROM ALL LOSS, DAMAGE AND EXPENSE, INCLUDING REASONABLE ATTORNEYS'
FEES AND INVESTIGATORY EXPENSES, INCURRED IN CONNECTION WITH ANY SUIT OR
PROCEEDING IN OR TO WHICH BENEFICIARY MAY BE MADE A PARTY FOR THE PURPOSE OF
PROTECTING THE LIEN OF THIS DEED OF TRUST, but such indemnity and hold
harmless shall not apply to the extent that such loss, damage, expense or
liability is caused by or attributable to Beneficiary's negligence or willful
misconduct. Grantor's obligations pursuant to the foregoing indemnity and
hold harmless shall survive any termination of the estate created by this Deed
of Trust whether as a result of the exercise by Beneficiary of any default
remedies available to it at law or in equity or otherwise.
11.15 Additional Documents. Grantor agrees that upon request of Beneficiary
it will from time to time execute, acknowledge and deliver all such additional
documents and further assurances of title and will do or cause to be done all
such further acts and things as may be reasonably necessary fully to
effectuate the intent of this Deed of Trust. The Grantor within ten (l0) days
upon request in person or by mail will furnish a duly acknowledged written
statement setting forth the amount of the debt secured by this Deed of Trust,
the date to which interest has been paid and stating either that no offsets or
defenses exist against the debt secured hereby, or, if such offsets or
defenses are alleged to exist, the nature thereof.
11.16 Disclosure. Grantor agrees to disclose to Beneficiary upon request,
the then ownership of the beneficial interest in any trust which then holds
legal title to the Mortgaged Property and shall cause the owner(s) of such
beneficial interest to furnish sufficient evidence to Beneficiary for it to
determine the identity of all of the parties which compose such owner(s).
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11.17 Subrogation. In the event the Note is given for money advanced in the
payment of a sum owing upon another note or Indebtedness, Grantor hereby
acknowledges that it has requested and does hereby request Beneficiary to
advance the money necessary to pay such note or Indebtedness, whether or not a
release or transfer of said other note or Indebtedness has been or will be
executed by the owner and holder thereof, and Grantor hereby agrees that
Beneficiary and Beneficiary's assigns shall be, and are hereby, subrogated to
any and all the rights, liens, remedies, equities, superior title and benefits
held, owned, possessed or enjoyed at any time by any owner or holder of said
other note or Indebtedness, to secure payment to Beneficiary of the Note
hereby secured and, accordingly, any such other note and Indebtedness, and all
liens securing same are hereby extended to the maturity date of the Note
hereby secured in order to additionally secure such Note. Nothing in this
Section 11.17 shall alter any obligation of Grantor hereunder or under the
Note.
11.18 Time. Time is of the essence of this Deed of Trust.
11.19 Multiple Counterparts. This Deed of Trust may be executed in multiple
counterparts, each of which shall be an original document and which, taken
together, constitute one and the same agreement.
11.20 Notices. The parties hereto agree that a single notice sent to the
Grantor at its address set forth herein (or designated in accordance with this
Section) shall be deemed notice to all parties constituting Grantor. Personal
delivery to a party or to any officer, trustee, partner, agent or employee of
such party at its address herein shall constitute receipt. Rejection or other
refusal to accept or inability to deliver because of changed address of which
no notice has been received shall also constitute receipt. Notwithstanding
the foregoing, no notice of change of address shall be effective until thirty
days after the date of receipt thereof.
XII. LIMITATION OF LIABILITY
-----------------------------
Except as otherwise specifically provided herein, in the event of a default in
the payment of the Note by Grantor, or any default under this Deed of Trust or
any other document securing, evidencing or relating to the Note, Beneficiary's
sole recourse shall be against the Mortgaged Property described in this Deed
of Trust and such other documents securing, evidencing or relating to the
Note, and Beneficiary shall not be entitled to recover any deficiency judgment
against Grantor if the foreclosure or recovery of such Mortgaged Property is
not sufficient to pay the amount owed by Grantor hereunder. Notwithstanding
the foregoing limitation of liability, Grantor shall be fully liable (a) for
fraud or misrepresentation made in or in connection with the Note or any
document securing, evidencing or relating to the payment of the Note or the
apparent purpose of which is to deprive Beneficiary of the security for the
Note; (b) for failure to pay taxes, assessments, charges for labor or
materials or any other charges which can create liens on any portion of the
Mortgaged Property; (c) for the misapplication of (i) proceeds of insurance
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covering any portion of the Mortgaged Property, or (ii) proceeds of the sale
or condemnation of any portion of the Mortgaged Property, or (iii) rentals and
security deposits received by or on behalf of Grantor subsequent to the date
on which Beneficiary gives written notice of the posting of foreclosure
notices or the exercise of Beneficiary's assignment of rents; (d) for failure
to maintain, repair or restore the Mortgaged Property in accordance with any
document securing, evidencing or relating to the payment of the Note; (e) for
any act or omission knowingly or intentionally committed or permitted by
Grantor which results in the waste, damage or destruction to the Mortgaged
Property, but only to the extent such events are not covered by insurance
proceeds which are received by Beneficiary; (f) for the return to Beneficiary
of all unearned advance rentals and security deposits paid by tenants of the
Mortgaged Property or any guarantors of the leases of such tenants which are
not rightfully refunded to or which are forfeited by such tenants or
guarantors; (g) for the return of, or reimbursement for, all personal property
taken from the Mortgaged Property by or on behalf of Grantor; (h) for any
liability of Grantor pursuant to the provision contained in this Deed of Trust
pertaining to hazardous or toxic materials or substances; (i) for any
liability of Grantor pursuant to the Certificate and Indemnity Regarding
Hazardous Substances executed by Grantor and delivered to Beneficiary in
connection with the Indebtedness evidenced by the Note; (j) for any delay
after a default which is not cured, in deeding over the Mortgaged Property to
the Beneficiary or failure to cooperate in a consensual foreclosure, within 90
days of Beneficiary's request; (k) for failure to maintain or alter the
Mortgaged Property in compliance with the Americans with Disabilities Act of
1990, as it may be amended from time to time; and (l) for all court costs and
reasonable attorneys' fees incurred in connection with the enforcement of one
or more of the above subparagraphs (a) through (k), inclusive.
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EXECUTED this 8th day of December, 2005.
Ramtron LLC, a Colorado
limited liability company
By: Ramtron International Corporation, a
Delaware corporation, its Manager
By: /s/ Xxxx X. Xxxxx
------------------------
Xxxx X. Xxxxx, President
STATE OF COLORADO)
) ss.
COUNTY OF EL PASO)
The foregoing instrument was acknowledged before me this 8th day of December,
2005, by Xxxx X. Xxxxx, President of RAMTRON INTERNATIONAL CORPORATION,
Manager of Ramtron LLC, a Colorado limited liability company.
WITNESS my hand and official seal.
My commission expires: 10-30-07
/s/ Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx X. Xxxxx
Notary Public
Seal
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