EXHIBIT 10.5
DEED OF TRUST
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
DATED AS OF JULY 31, 2002
IN THE AMOUNT OF $7,600,000.00
AMONG CONCORDE CRIPPLE CREEK, INC.,
A COLORADO CORPORATION (THE "GRANTOR") AND
THE PUBLIC TRUSTEE OF XXXXXX COUNTY (THE "TRUSTEE") AND
FIRST NATIONAL BANK, RAPID CITY, SOUTH DAKOTA,
AS THE LENDER HEREIN NAMED (THE "BENEFICIARY")
LOCATION OF PREMISES:
BLACKHAWK, COLORADO
RECORDING REQUESTED BY AND AFTER RECORDING, PLEASE RETURN TO:
XXXXXXX & XXXXXXXXXX
ATTN: XXXXX X. XXXXXX
3100 XXXXX XXXXXXX TOWER
000 XXXXX XXXXX XXXXXX
XXXXXXXXXXX, XXXXXXXXX 00000
THIS INSTRUMENT WAS PREPARED BY THE ABOVE-NAMED ATTORNEY.
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DEED OF TRUST ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST SECURES CREDIT IN THE MAXIMUM AMOUNT OF
$7,600,00.00, TOGETHER WITH INTEREST THEREON AND OTHER AMOUNTS HEREIN
DESCRIBED. INTEREST ON THE AMOUNT SECURED HEREBY MAY FLUCTUATE FROM
TIME TO TIME.
THE PARTIES TO THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING, made this 31st day of July, 2002 are
Concorde Cripple Creek, Inc., a Colorado corporation (the "Grantor") having its
office at 0000 Xxxx Xxxxxx, Xxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx 00000, the Public
Trustee of Xxxxxx County (the "Trustee") and First National Bank, as Lender (the
"Beneficiary") having its offices at 000 Xx. Xxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxx
Xxxxxx, 00000.
ARTICLE 1. GRANT
1.1 GRANT. Upon the terms and conditions in this Deed of Trust, Grantor
irrevocably grants, bargains, sells, conveys, assigns, mortgages and warrants to
Trustee in Trust, with the Power of Sale, all of Grantor's right, title and
interest, whether now owned or hereafter acquired, in all of the real property
located in the County of Xxxxxx, State of Colorado described on "Exhibit A"
attached hereto and made a part hereof (the "Real Estate") including and
together with, without limitation:
(a) all right, title and interest of Grantor whether
now owned or hereafter acquired, in or to any real property
lying within the right of way of any street, open or proposed,
which adjoins any of said Real Estate and any and all
sidewalks, parking ramps, bridges, elevated walkways, tunnels
and alleys adjacent to, connecting or used in connection with
any of said Real Estate;
(b) all right, title and interest of Grantor whether
now owned or hereafter acquired, in or to, all buildings,
structures and all other improvements and fixtures that are,
or that may be hereafter erected or placed on, or in, the Real
Estate (collectively, the "Improvements");
(c) all right, title and interest of Grantor as
lessor, sublessor, licensor, concessionaire, franchisor or
similar party under all leases, subleases, licenses,
concessions, franchises and other use or occupancy agreements
now or hereafter relating to any of the Real Estate,
including, but not limited to the interest of the Grantor in
all or any portion of the Ultimate Parking Garage Association,
Inc., a Colorado non-profit corporation, the Ultimate Parking
Garage Condominium project owned by the Association, all
Ultimate Parking Garage Units and Grantor's interest in all
property within the Units owned by Grantor, and all renewals,
extensions, amendments, restatements and other modifications
thereof (collectively, the "Occupancy Agreements");
(d) all present and future rents, issues, products,
earnings, revenues, payments, profits, royalties and other
proceeds and income of the Real Estate, and
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of any activities conducted thereon or in connection
therewith, regardless of whether such proceeds or income
accrue by virtue of the Occupancy Agreements, or otherwise
(collectively, the "Rents");
(e) all tenements, easements, hereditaments and
appurtenances now, or hereafter, belonging to or in any way
appertaining to the Real Estate and/or the Rents and the
reversion and reversions, remainder and remainders thereof and
all the estate, right, title, interest or other claim which
Grantor now has or hereafter may acquire of, in and to the
Real Estate, the Occupancy Agreements, the Rents and/or any
part thereof, with the appurtenances thereto (collectively,
the "Other Interests"); and
(f) the Personal Property which is referred to by
Article 4 below.
The Real Estate, the Occupancy Agreements, the Rents and the Other Interests are
hereinafter collectively referred to as the "Real Property".
TO HAVE AND TO HOLD the Real Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Trustee, and
its successors and assigns, in fee simple forever for the uses and purposes
herein set forth subject only to Permitted Encumbrances (as defined in the Loan
Agreement)
ARTICLE 2. OBLIGATIONS SECURED
2.1 OBLIGATIONS SECURED. Grantor makes this Deed of Trust for the
purpose of securing the following obligations (collectively, the "Obligations"):
(a) Payment when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or
otherwise (including payment of amounts that would become due
but for the operation of the automatic stay under Section 362
(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)), of: (i)
the principal sum which is, at any time, advanced and unpaid
under the Loan (as defined in the Loan Agreement), not to
exceed Seven Million Six Hundred Thousand and NO/100 Dollars
($7,600,000.00) at any one time; (ii) interest and other
charges accrued on said principal sum, or accrued on interest
and other charges then outstanding under the Loan (all
including, without limitation, interest and other charges that
would accrue on such obligations, but for the filing of a
petition in bankruptcy with respect to Grantor); and (iii) any
other obligations of Grantor under the Note referred to below;
all according to the terms of that certain Promissory Note
dated concurrently herewith made by Grantor and payable to the
order of First National Bank, Rapid City, South Dakota (herein
referred to as either the "Lender" or the "Beneficiary"),
according to the terms and provisions of said Note, and all
renewals, extensions, amendments, restatements, replacements,
substitutions and other modifications thereof (hereinafter
collectively referred to as the "Note").
(b) Payment and performance of every obligation,
covenant, promise and agreement of Grantor herein contained or
incorporated herein by reference,
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including any sums paid or advanced by Beneficiary (which are
defined below) pursuant to the terms hereof.
(c) Payment of the expenses and costs incurred or
paid by Beneficiary in the preservation and enforcement of the
rights and remedies of Beneficiary and the duties and
liabilities of Grantor hereunder, including, but not by way of
limitation, reasonable attorney's fees, court costs, witness
fees, expert witness fees, collection costs, and reasonable
costs and expenses paid by Beneficiary in performing for
Grantor's account any obligation of said Grantor.
(d) Payment of additional sums and interest thereon
which may hereafter be loaned to Grantor pursuant to the Loan
Agreement when evidenced by a promissory note or Note which
recite that this Deed of Trust is security therefor.
(e) Performance and payment of every obligation,
warranty, representation, covenant, agreement and promise of
Grantor contained in that certain Loan Agreement (the "Loan
Agreement") executed concurrently, or substantially
concurrent, herewith by Grantor, and Beneficiary in its
capacity as the Lender, as well as performance and payment of
every, obligation, warranty, representation, covenant,
agreement and promise of Grantor contained in all extensions,
renewals, amendments, restatements and other modifications of
the Loan Agreement.
2.2 FUTURE ADVANCES. This Deed of Trust is given for the purpose of
securing, among other things, loan advances which the Beneficiary may make to or
for Grantor pursuant and subject to the terms and provisions of the Loan
Agreement. The parties hereto intend that, in addition to any other debt or
obligation secured hereby, this Deed of Trust shall secure unpaid balances of
loan advances made after this Deed of Trust is delivered to the office of the
County Recorder of Xxxxxx County, Colorado, whether made pursuant to an
obligation of Beneficiary or otherwise, such advances shall be secured to the
same extent as if such future advances were made on the date hereof, although
there may be no advance made at the time of execution hereof and although there
may be no indebtedness outstanding at the time any advance is made. Such loan
advances may or may not be evidenced by the Note executed pursuant to the Loan
Agreement.
2.3 OBLIGATIONS. The term "Obligations" is used herein in its broadest
and most comprehensive sense and shall be deemed to include, without limitation,
all protective advances and all sums advanced to protect the Property or the
lien of this Deed of Trust or otherwise disbursed or incurred under the terms of
the Loan Documents (as defined in the Loan Agreement), all interest and charges,
prepayment charges (if any), late charges and loan fees at any time accruing or
assessed on any of the Obligations.
2.4 INCORPORATION. All terms of the Obligations and the documents
evidencing such obligations are incorporated herein by this reference. All
persons who may have or acquire an interest in the Property (which is defined by
Article 4 below), or any portion thereof, shall be deemed to have notice of the
terms of the Obligations, which terms include without limitation,
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provisions which: (i) provide that the rate of interest on one or more
Obligations may vary from time to time; and (ii) permit borrowing, repayment and
reborrowing.
ARTICLE 3. ASSIGNMENT OF LEASE AND PAYMENTS
3.1 ASSIGNMENT. Grantor hereby irrevocably assigns to mortgagee all of
Grantor's right, title and interest in, to and under: (a) the Occupancy
Agreements and, to the extent not included within the Occupancy Agreements, all
leases, subleases, licenses, concessions, franchises and other use or occupancy
agreements now or hereafter relating to the Real Property and all renewals,
extensions, amendments, restatements and other modifications thereof (all of
which are collectively referred to herein as the "Leases"); and (b) the Rents
and, to the extent not included within the Rents, all present and future rents,
issues, products, earnings, revenues, payments, profits, royalties and other
proceeds and income of the Real Property and of any activities conducted
thereon; (all of which are collectively referred to herein as the "Payments")
except in each case those Leases and Payments that are not assignable as a
matter of law. Upon any Default (as defined by Article 7 below), Beneficiary
shall be entitled to receive pursuant to the foregoing assignment, and Grantor
shall be obligated to deliver to Beneficiary or its designee, (including any
receiver), any and all Payments collected by Grantor which remain in the
possession or control of Grantor, whether or not commingled with other funds of
Grantor, and whether collected by Grantor before or after the occurrence of the
Default.
3.2 GRANT OF LICENSE. Beneficiary confers upon Grantor a license
("License") to collect and retain the Payments as they become due and payable,
until the occurrence of a Default (as hereinafter defined). Upon a Default, the
License shall be automatically revoked and Beneficiary may collect and apply the
Payments pursuant to Article 7 below, without notice and without taking
possession of the Real Property. Grantor hereby irrevocably authorizes and
directs the lessees under the Leases to rely upon and comply with any notice or
demand by Beneficiary for the payment to Beneficiary of any rental or other sums
which may at any time become due under the Leases, or for the performance of any
of the lessees' undertakings under the Leases, and the lessees shall have no
right or duty to inquire as to whether any Default has actually occurred or is
then existing hereunder. Grantor hereby relieves the lessees from any liability
to Grantor by reason of relying upon and complying with any such notice or
demand by Beneficiary.
3.3 EFFECT OF ASSIGNMENT. The foregoing irrevocable assignment alone
shall not cause Beneficiary to be: (a) a mortgagee in possession; (b)
responsible or liable for the control, care, management or repair of the Real
Property, or for performing any of the terms, agreements, undertakings,
obligations, representations, warranties, covenants and conditions of the
Leases; (c) responsible or liable for any waste committed on the Real Property,
by the lessees under any of the Leases or any other parties; (d) responsible or
liable for any dangerous or defective condition of the Real Property, or (e)
responsible or liable for any negligence in the management, upkeep, repair or
control of the Real Property resulting in loss or injury or death to any,
lessee, licensee, employee, invitee or other person. Beneficiary shall not
directly or indirectly be liable to Grantor or any other person as a consequence
of: (i) the exercise or failure to exercise any of the rights, remedies or
powers granted to Beneficiary hereunder; or (ii) the failure or refusal of
Beneficiary to perform or discharge any obligation, duty or liability of
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Grantor arising under any of the Leases, except to the extent the license
granted to Grantor under Section 3.2 is revoked.
3.4 REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants
that: (a) to Grantor's knowledge, all existing Leases are in full force and
effect and are enforceable in accordance with their respective terms, and, to
Grantor's knowledge, no breach, default or event which would constitute a breach
or default after notice or the passage of time, or both, exists under any
existing Leases on the part of any party; (b) no rent or other payment under any
existing Lease has been paid by any lessee for more than one (1) month in
advance; and (c) to Grantor's knowledge, none of the Grantor's interests under
any of the Leases has been transferred or assigned.
3.5 COVENANTS. Grantor covenants and agrees at Grantor's sole cost and
expense to: (a) perform the lessor's obligations contained in the Leases and
enforce by all available remedies performance by the lessees of the obligations
of the lessees contained in the Leases in accordance with past practice and in
any event, in accordance with prudent business judgment; and (b) execute and
record (or cause to be executed and recorded) such additional assignments of any
Lease or specific subordinations of any Lease to this Deed of Trust, in form and
substance acceptable to Beneficiary, as Beneficiary may reasonably request.
Grantor shall not, without Beneficiary's prior written consent or as otherwise
permitted by any provision of the Loan Agreement: (i) execute any other
assignment relating to any of the Leases; or (ii) subordinate or agree to
subordinate any of the Leases to pay any other mortgage or encumbrance. Any such
action in violation of this Section 3.5 shall be null and void.
ARTICLE 4. SECURITY AGREEMENT
AND FIXTURE FILING
4.1 SECURITY INTEREST. Grantor hereby grants and assigns to Beneficiary
a security interest, to secure payment and performance of all of the Obligations
in, and to, all right, title and interest of Grantor which is now owned or
hereafter acquired in or to any of the following described personal property
(collectively, the "Personal Property"):
(a) All present and future chattels, furniture,
furnishings equipment, gaming equipment, fixtures, building
materials, building contents and building components, all of
every kind and nature, and other tangible personal property:
(i) which is used in connection with, situated in or on,
affixed to, or incorporated into any portion of the Real
Property; (ii) which is used in connection with, situated in
or on, affixed to, or incorporated into, any building,
structure or other improvement that is now or that may be
hereafter constructed on or under the Real Property; (iii) in
which Grantor otherwise has or acquires an interest and which
is used in connection with any activity engaged in by Grantor
at the Real Property; all including, without limitation: (aa)
all lumber, bricks, cement, masonry, steel, doors, windows,
fasteners, nails, bolts, scaffolding, tools, construction
supplies, construction tools and equipment and all other
building materials, supplies and equipment of any kind or
nature; (bb) all air conditioning, heating, electrical,
lighting, fire fighting and fire prevention, plumbing, food
and beverage preparation, laundry, security, sound, signaling,
telephone, television,
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entertainment stage, window washing, irrigation, storage,
shop, landscaping, signage and other equipment and fixtures,
of whatever kind or nature, consisting of, without limitation,
air conditioners, compressors, fans, duct work, thermostats,
furnaces, boilers, radiators, burners, wiring, conduits,
cables, generators, transformers, switching gear, lighting
fixtures, sprinkler systems and other fire extinguishing
equipment, fire alarms and other fire detection equipment,
piping, pumps, valves, sinks, toilets, tubs, motors, carts,
elevators and other lifts, ovens, refrigerators, dishwashers
and dishwashing equipment, fabric washing and drying
equipment, lock and key systems, surveillance and entry
detection systems, speakers, intercoms and public address
systems, hardware, shelving, maintenance and repair equipment
and all other similar items; (cc) all furniture, furnishings,
wall coverings, floor coverings, window coverings, artwork and
decorative items including, without limitation, casino, guest
room, bathroom, lobby, bar, restaurant, storage, retail,
meeting, convention, leisure, recreation, office,
administrative and other furniture, furnishings, wall
coverings, floor coverings, window coverings, artwork and
decorative items; (dd) all equipment and supplies, including
without limitation, televisions, radios, telephones,
amenities, carts, and all other equipment and supplies
utilized in the business of the Grantor; (ee) all bar and
restaurant equipment and supplies, including, without
limitation, kitchen and bar appliances, pots, pans, plates,
dishes, cups, glasses, serving utensils, cooking utensils and
all other equipment and supplies used in the operation of bars
and/or restaurants; (ff) all office and administrative
equipment and supplies including, without limitation, office
appliances, filing cabinets, computers, peripheral computer
equipment and other data processing and storage equipment,
stationery and other office supply items, and other office and
administrative equipment and supplies; (gg) all tools and
other maintenance and repair equipment; (hh) all landscaping
equipment and supplies; and (ii) all equipment and supplies
utilized in connection with any other activity engaged in by
Grantor at the Real Property;
(b) All present and future supplies, inventory and
merchandise which is used in connection with, or in the
conduct of, the business of Grantor or in which Grantor has or
acquires an interest, including, without limitation: (i) all
present and future goods held for sale or lease or to be
furnished under a contract of service, all raw materials, work
in process and finished goods, all packing materials, supplies
and containers relating to or used in connection with any of
the foregoing, and all bills of lading, warehouse receipts or
documents of title relating to any of the foregoing; (ii) all
food stuffs, beverages, prepared food and other similar items;
and (iii) all cleaning supplies, office supplies, consumables
and similar items;
(c) All present and future goods, which are not
otherwise set forth herein, and which are used in connection
with, or in the conduct of, the business of Grantor or in
which Grantor has or acquires an interest;
(d) All present and future accounts, accounts
receivable, rentals, deposits, rights to payment, instruments,
documents, chattel paper, security
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agreements, guaranties, undertakings, surety bonds, insurance
policies and notes and drafts which are owned, or used in
connection with, or in the conduct of, the business of
Grantor, or in which Grantor has or acquires an interest,
however created or arising;
(e) All present and future contracts, or agreements
and all other present and future general intangibles which are
owned, or used in connection with, or in the conduct of, the
business of Grantor, or in which Grantor has or acquires an
interest, including, without limitation: (aa) all leases and
purchase contracts for equipment, furniture and/or fixtures of
any kind and character relating to the Real Property, and/or
the businesses conducted thereon; and (bb) all goodwill,
chooses in action, trade secrets, customer lists, trademarks,
trade names and service marks, patents, copyrights,
technology, processes, and proprietary information which are
owned, or used in connection with, or in the conduct of, the
business of Grantor, or in which Grantor has or acquires an
interest.
(f) All present and future deposit accounts which are
owned, or used in connection with, or in the conduct of, the
business of Grantor, or in which Grantor has or acquires an
interest including, without limitation, any demand, time,
savings, passbook or like account maintained with any bank,
savings and loan association, credit union or like
organization, and all money, cash and cash equivalents of
Grantor, whether or not deposited in any such deposit account,
including, but not limited to, the Debt Service and
Replacement Reserve, as defined in the Loan Agreement;
(g) All present and future revenues, receipts,
payments and income of any nature whatsoever, in which Grantor
now owns or hereafter acquires an interest, regardless of
whether such items are derived from or received with respect
to gaming or any other facilities on the Real Property and
regardless of whether such items are derived from any other
source;
(h) All present and future books and records which
are owned, or used in connection with, or in the conduct of,
the business of Grantor, or in which Grantor, has or acquires
an interest including, without limitation, books of account
and ledgers of every kind and nature, all electronically
recorded data relating to the business of Grantor, all
receptacles and containers for such records, and all files and
correspondence;
(i) All present and future investment property,
stocks, bonds, debentures, securities, subscription rights,
options, warrants, puts, calls, certificates, partnership
interests, joint venture interests, investments and/or
brokerage accounts which are owned, or used in connection
with, or in the conduct of, the business of Grantor, or in
which Grantor has or acquires an interest and all rights,
preferences, privileges, dividends, distributions, redemption
payments, or liquidation payments with respect thereto;
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(j) All right, title and interest of Grantor in and
to all leases, licenses, concessions, or similar agreements
whether or not specifically herein described which now or may
hereafter pertain to the Real Property and all amendments to
the same, including, but not limited to the following: (aa)
all payments due and to become due under such agreements,
whether as rent, damages, insurance payments, condemnation
awards, or otherwise; (bb) all claims, rights, powers,
privileges and remedies under such agreements; and (cc) all
rights of the Grantor under such leases to exercise any
election or option, or to give or receive any notice, consent,
waiver or approval, or to accept any surrender of the premises
or any part thereof, together with full power and authority in
the name of Grantor or otherwise, to demand and receive,
enforce, collect, or receipt for any or all of the foregoing,
to endorse or execute any checks or any instruments or orders,
to file any claims or to take any action which Beneficiary may
deem necessary or advisable in connection therewith;
(k) All plans, specifications, soil reports,
engineering reports, land planning maps, surveys, and any
other reports, exhibits or plans used or to be used in
connection with the construction, planning, operation or
maintenance of the Real Property, together with all amendments
and modifications thereof;
(l) All present and future accessions, appurtenances,
components, repairs, repair parts, spare parts, replacements,
substitutions, additions, issue and/or improvements to or of
or with respect to any of the foregoing;
(m) All rights, remedies, powers and/or privileges of
Grantor with respect to any of the foregoing; and
(n) Any and all proceeds and products of any of the
foregoing, including, without limitation, all money, accounts,
general intangibles, deposit accounts, documents, instruments,
chattel paper, goods, insurance proceeds, and any other
tangible or intangible property received upon the sale or
disposition of any of the foregoing.
SUBJECT, HOWEVER, to the following:
(i) the right of Grantor to sell or
otherwise dispose of Personal Property in the
ordinary course of business, free and clear of the
lien hereof, provided, and to the extent, that such
sale or other disposition is permitted under the
terms of the Loan Agreement; and
(ii) as to the fixtures and equipment
covered hereby, the leases and/or purchase money
security interests pursuant to which Grantor has
acquired an interest in such fixtures and equipment
provided, and to the extent, that such leases and/or
purchase money security interests are permitted under
the terms of the Loan Agreement.
The Real Property and the Personal Property described hereinabove are
hereinafter collectively referred to as the "Property". The parties intend for
this Deed of Trust to create a
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lien on and security interest in the Property, and, as provided in Article 3
hereof entitled Assignment of Leases and Payments, an absolute assignment of the
Leases and Payments, all in favor of Beneficiary. To the extent any of said
Property, Leases and Payments are not encumbered by a perfected lien or security
interest created above, and are not absolutely assigned by the assignment set
forth in Article 3 above, it is the intention of the parties that such Property,
Leases and/or Payments shall constitute "proceeds, product, offspring, rents or
profits" (as defined in and for the purposes of Section 552(b) of the United
States Bankruptcy Code, as such section may be modified or supplemented) of the
Property.
4.2 FIXTURE FILING.
As to all of the above described Personal Property
which is or which hereafter becomes a "fixture" under
applicable law, this Deed of Trust constitutes a fixture
filing under Section 4-9-502 of the Colorado UCC, as it may be
amended or recodified from time to time. The address of
Beneficiary from which information may be obtained concerning
the security interest granted hereunder and the mailing
address of Grantor are as follows:
BENEFICIARY: First National Bank, Rapid City, South Dakota
as the Lender herein named
000 Xx. Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Branch President
GRANTOR: Concorde Cripple Creek, Inc.
0000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx Xxxx, President
4.3 REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants
that (subject to Permitted Encumbrances and except as set forth in the Loan
Agreement): (a) Grantor has good title to the Personal Property; and (b) Grantor
has not previously assigned or encumbered the Personal Property, and no
financing statement covering any of the Personal Property has been delivered to
any other person or entity.
4.4 RIGHTS OF MORTGAGEE. In addition to Beneficiary's rights as a
"Secured Party" under the UCC, Beneficiary may, but shall not be obligated to,
at any time without notice (except as provided below) and at the expense of
Grantor: (a) give notice to any person of Beneficiary's rights hereunder and
enforce such rights at law or in equity; (b) insure, protect, defend and
preserve the Personal Property or any rights or interests of Beneficiary
therein; and (c) inspect the Personal Property at reasonable times and upon
reasonable prior notice. Notwithstanding the above, in no event shall
Beneficiary be deemed to have accepted any property other than cash in
satisfaction of any obligation of Grantor to Beneficiary unless Beneficiary
shall make an express written election of said remedy under the UCC, or other
applicable law.
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4.5 RIGHTS OF MORTGAGEE ON DEFAULT. Upon the occurrence of a Default
under this Deed of Trust, then in addition to all of Beneficiary's rights as a
"Secured Party" under the UCC or otherwise at law:
(a) Beneficiary may (i) upon written notice, require Grantor
to assemble any or all of the Personal Property and make it
available to Beneficiary at the Real Property; (ii) without
prior notice (except as otherwise required by applicable law),
enter upon the Property or other place where any of the
Personal Property may be located and take possession of,
and/or collect any or all of the Personal Property, and store
the same at locations acceptable to Beneficiary at Grantor's
expense; and/or (iii) upon ten (10) days' prior written notice
to Grantor (except with respect to Personal Property which is
perishable, which threatens to decline speedily in value, or
which is of a type customarily sold on a recognized market, in
which case no such notice shall be required) sell, assign, or
otherwise dispose of, and deliver, at any place or in any
lawful manner, all or any part of the Personal Property and
bid and become purchaser at any such sales; and
(b) Beneficiary may, for the account of Grantor and at
Grantor's expense: (i) upon ten (10) days' prior written
notice to Grantor, operate, use, consume, sell or dispose of
the Personal Property as Beneficiary reasonably deems
appropriate for the purpose of performing any or all of the
Obligations; (ii) upon ten (10) days' prior written notice to
Grantor, enter into any agreement, compromise, or settlement,
including insurance claims, which Beneficiary may reasonably
deem desirable or proper with respect to any of the Personal
Property; (iii) endorse, collect and receive any right to
payment of money owing to Grantor under or from the Personal
Property; and (iv) endorse and deliver evidences of title for,
and receive, enforce and collect by legal action or otherwise,
all indebtedness and obligations now or hereafter owing to
Grantor in connection with or on account of any or all of the
Personal Property.
4.6 POWER OF ATTORNEY. Grantor hereby irrevocably appoints Beneficiary
as Grantor's attorney-in-fact (such agency being coupled with an interest), and
as such attorney-in-fact Beneficiary may, without the obligation to do so, in
Beneficiary's name, or in the name of Grantor, prepare, execute and file or
record financing statements, continuation statements, applications for
registration and like papers necessary to create, perfect or preserve any of
Beneficiary's security interests and rights in or to any of the Personal
Property as set forth in this Deed of Trust, and, upon a Default hereunder, take
any other action required of Grantor; provided, however, that Beneficiary as
such attorney-in-fact shall be accountable only for such funds as are actually
received by Beneficiary.
ARTICLE 5. PROTECTION OF SECURITY OF DEED OF TRUST; RELEASE
5.1 PROTECTION OF SECURITY OF DEED OF TRUST. To protect the security of
this Deed of Trust, Grantor agrees that by execution of this Deed of Trust and
the Note secured thereby, that if Grantor fails to perform the covenants and
agreements contained in this Deed of Trust, or if any action or proceeding is
commenced which materially adversely affects the Beneficiary's interest in the
Property, as determined by Beneficiary in good faith, then
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Beneficiary, at Beneficiary's option, with notice to Grantor if required by law,
may make such appearances, disburse such sums and take such action as is
necessary to protect Beneficiary's interest, including, but not limited to:
(a) any general or special taxes or ditch or water assessments levied
or accruing against the Real Property;
(b) the premiums on any insurance necessary to protect any improvements
comprising part of the Real Property;
(c) sums due on any prior lien or encumbrance on the Property;
(d) if the Property is a leasehold or is subject to a lease, all sums
due under such lease;
(e) the reasonable costs and expenses of defending, protecting and
maintaining the Property and Beneficiary's interest in the Property, including
repair and maintenance costs and expenses, costs and expenses of protecting and
securing the Property, receiver's fees and expenses, inspection fees, appraisal
fees, court costs, reasonable attorneys fees and costs, reasonable fees and
costs of an attorney in the employment of the Beneficiary or of the holder of
the certificate of purchase;
(f) all other costs and expenses allowable by the evidence of debt or
this Deed of Trust;
(g) such other costs and expenses which may be authorized by a court of
competent jurisdiction.
Grantor hereby assigns to Beneficiary any right Grantor may have by
reason of any prior encumbrance on the Property or by law or otherwise to cure
any default under said prior encumbrance.
Any amounts disbursed by Beneficiary pursuant to this Section 5.1 with
interest thereon, shall become additional indebtedness of Grantor secured by
this Deed of Trust. Such amounts shall be payable upon notice from Beneficiary
to Grantor requesting payment thereof (provided Grantor has received
documentation, reasonably satisfactory to it, evidencing the payment or
incurrence of such indebtedness or expense by Beneficiary), and Beneficiary may
bring suit to collect any amounts so disbursed plus interest at the rate stated
in the instrument evidencing the debt secured by this Deed of Trust. Nothing in
this Deed of Trust shall require Beneficiary to incur any expense or take any
action hereunder.
5.2 RELEASE OF DEED OF TRUST. The Beneficiaries of this Deed of Trust
shall, when all of the Obligations secured by this Deed of Trust have been paid
in full, deliver a request for reconveyance and cancellation of indebtedness to
the Trustee. The Trustee shall reconvey, without warranty, the estate held by
the Trustee in the Property.
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ARTICLE 6. RIGHTS AND DUTIES OF THE PARTIES
6.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF GRANTOR. Grantor
represents, warrants and covenants that:
(a) This Deed of Trust creates a first priority
mortgage lien and/or, to the extent applicable, a first
priority security interest on the Real Property and all of the
Property which is in addition to the Real Property, subject
only to Permitted Encumbrances (as defined in the Loan
Agreement); and
(b) Grantor has no interest in any real property, not
encumbered hereby, which is utilized in any material manner in
connection with the use and/or operation of the Real Property,
or which is necessary and required for the use and operation
of said Real Property.
(c) Grantor is, and agrees to remain, in compliance
with all material agreements, recorded or unrecorded, under
which it is bound with the City of Black Hawk, Xxxxxx County,
Colorado.
(d) Grantor acknowledges that the Property is in a
number of special districts, and represents that it is
presently in material compliance, and agrees to remain in
compliance with the ordinances, rules, regulations, and other
directives of all such districts. Grantor further represents
that is has paid all taxes and other impositions levied by
such districts, which are currently due and payable, except
for those taxes and fees, if any, which are currently being
disputed in good faith by Borrower, and that it will in the
future continue to make such payment.
6.2 PAYMENT OF OBLIGATIONS. Grantor shall pay when due, or cause to be
paid when due: (i) the principal of, and interest on, the indebtedness evidenced
by the Note; (ii) all charges, fees and other sums as provided in the Loan
Documents (as defined in the Loan Agreement) including, without limitation, all
reasonable costs, fees and expenses of this Deed of Trust incurred by
Beneficiary in connection with any Default; (iii) the principal of, and interest
on, any future advances secured by this Deed of Trust; and (iv) the principal
of, and interest on, any other indebtedness secured by this Deed of Trust.
6.3 COMPLIANCE WITH LAWS. Grantor shall comply in all material respects
with all applicable material existing and future laws, rules, regulations,
orders, ordinances and requirements of all applicable governmental authorities,
and with all recorded covenants and restrictions affecting the Real Property.
6.4 MAINTENANCE OF PROPERTY. Except as otherwise permitted in the Loan
Agreement and except to the extent that any of the following would be prohibited
under, or would constitute a violation of, the terms and conditions of the Loan
Agreement, Grantor agrees: (a) to properly care for and keep said Property in
good condition and repair; (b) not to remove, demolish or substantially alter
the Property, except upon the prior written consent of Beneficiary; (c) to
complete promptly and in a good and workmanlike manner any building or other
improvement which may be constructed on the Real Property, and to pay when due
all claims for labor performed and materials furnished therefor (subject to
Grantor's right to contest the validity
13
or amount of mechanic's and/or materialman's liens in accordance with the Loan
Agreement); (d) not to commit or permit any waste or deterioration of the
Property (ordinary wear and tear, casualty and condemnation excepted); (e) not
to commit, suffer or permit any act to be done, or condition to exist, in or
upon said Property in material violation of any law, covenant, condition or
restriction now, or hereafter, affecting said Property (including any which
require alteration or improvement thereof); (f) to keep and maintain all
grounds, sidewalks, roads, parking and landscaped areas situated on the Property
in good order and repair; (g) not to drill or extract or enter into any lease
for the drilling for or extraction of oil, gas or other hydrocarbon substances
or any mineral, of any kind or character on or from the Property or any part
thereof; (h) not to apply for any subdivision, change in zoning, change in land
use regulation, or inclusion within a general improvement district or similar
assessment mechanism, with regard to any portion of the Real Property without
the prior written consent of Beneficiary; and (i) except as otherwise permitted
in the Loan Agreement, to do all other acts, in a timely and proper manner,
which, from the character or use of the Property, may be reasonably necessary to
maintain and preserve its value, the specific enumerations herein not excluding
the general.
6.5 INSURANCE. During the continuance of this Deed of Trust, Grantor
shall maintain insurance as required by the Loan Agreement.
6.6 TAXES AND ASSESSMENTS. Grantor shall pay all taxes, assessments and
other governmental charges or levies affecting said Property, or any part
thereof, in the manner required by the Loan Agreement except such taxes,
assessments and other governmental levies as are being contested in good faith
in the manner provided in the Loan Agreement.
6.7 LIEN CLAIMS. If any mechanic's lien or materialman's lien shall be
recorded, filed or suffered to exist against the Property or any interest
therein by reason of any work, labor, services or materials supplied, furnished
or claimed to have been supplied and furnished in connection with any work of
improvement upon the Property, said lien or claim shall be paid, released or
otherwise discharged of record to the extent required by, and in accordance with
the Loan Agreement.
6.8 EASEMENTS. If an easement or other incorporeal right other than a
Permitted Encumbrance (collectively, an "Easement") constitutes any portion of
the Real Property, Grantor shall not amend, change, terminate or modify such
Easement, or any right thereto or interest therein, without the prior written
consent of Beneficiary, which consent shall not be unreasonably withheld,
conditioned or delayed by Beneficiary, and any such amendment, change,
termination or modification without such prior written consent shall be deemed
void and of no force or effect. Grantor agrees to perform all obligations and
agreements with respect to said Easement and shall not take any action or omit
to take any action which would effect or permit the termination thereof. Upon
receipt of notice, or otherwise becoming aware, of any default or purported
default under any Easement, by any party thereto, Grantor shall promptly notify
Beneficiary in writing of such default or purported default and shall deliver to
Beneficiary copies of all notices, demands, complaints or other communications
received or given by Grantor with respect to any such default or purported
default.
6.9 PERFORMANCE BY BENEFICIARY. Should Grantor fail to make any payment
or perform any act which it is obligated to make or perform hereunder or under
the
14
Loan Agreement, then Beneficiary, at its election, upon giving reasonable notice
to Grantor, and without releasing Grantor from any obligation hereunder, may
make such payment or perform such act and incur any liability, or expend
whatever amounts, in its reasonable discretion, it may deem necessary therefor.
All sums incurred or expended by Beneficiary, under the terms hereof, shall
become due and payable by Grantor to Beneficiary, on the next interest or
installment payment date under the Note secured hereby and shall bear interest
until paid at an annual percentage rate equal to the Default Rate expressed in
the Note. In no event shall such payment or performance of any such act by
Beneficiary be construed as a waiver of the default occasioned by Grantor's
failure to make such payment(s) or perform such act(s).
6.10 ACTIONS AFFECTING PROPERTY. Grantor promises and agrees that if,
during the existence of this Deed of Trust, there shall be commenced or pending
any suit or action affecting said Property, or any part thereof, or the title
thereto, or if any adverse claim for or against said Property, or any part
thereof, be made or asserted, it will appear in and defend any such matter
purporting to affect the security of this Deed of Trust and will pay all costs
and damages arising because of such action.
6.11 EMINENT DOMAIN. Any award of damages in connection with any
condemnation or similar actions in regard to said Property, or any part thereof,
shall be: (i) paid directly to Beneficiary and shall be retained by Beneficiary
or released to Grantor by Beneficiary; or (ii) paid directly to Grantor; all in
accordance with the Loan Agreement.
6.12 SUBROGATION. To the extent that any sums advanced by Beneficiary
are used to pay any outstanding lien, charge or prior encumbrance against the
Property, such sums shall be deemed to have been advanced by Beneficiary at the
request of Grantor and Beneficiary shall be subrogated to any and all rights and
liens held by any owner or holder of such outstanding liens, charges and prior
encumbrances, regardless of whether said liens, charges or encumbrances are
released.
6.13 DUE ON SALE. Intentionally Omitted.
6.14 PARTIAL OR LATE PAYMENT. By accepting payment of any sum secured
hereby after its due date, Beneficiary does not waive its right either to
require prompt payment, when due, of all other sums so secured or to declare
Default, as herein provided, for failure to so pay.
6.15 RIGHT OF BENEFICIARY TO APPEAR. If, during the existence of this
Deed of Trust, there shall be commenced or pending any suit or action affecting
the Property, or any part thereof, or the title thereto, or if any adverse claim
for or against the Property, or any part thereof, shall be made or asserted,
which claim or claims, individually or in the aggregate, would materially
adversely effect Beneficiary's rights and security under this Deed of Trust,
Beneficiary (unless such suit, action or claim is being contested in good faith
by Grantor and Grantor shall have established and maintained adequate reserves
in accordance with generally accepted accounting principles for the full payment
and satisfaction of such suit or action if determined adversely to Grantor), may
appear or intervene in the suit or action and retain counsel therein and defend
same, or otherwise take such action therein as they may be advised, and, with
Grantor's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed,
15
may settle or compromise same or the adverse claim; and in that behalf and for
any of the purposes may pay and expend such sums of money as the Beneficiary may
deem to be reasonably necessary and Grantor shall reimburse Beneficiary for such
sums expended, together with accrued interest thereon, at the Interest Rate
which is defined in the Note ((provided Grantor has received documentation,
reasonably satisfactory to it, evidencing the payment or incurrence of such
indebtedness or expense by Beneficiary).
6.16 RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY.
Without notice to or the consent, approval or agreement of any persons or
entities having any interest at any time in the Property or in any manner
obligated under the Obligations ("Interested Parties"), Beneficiary may, from
time to time, release any person or entity from liability for the payment or
performance of any Obligation, take any action or make any agreement extending
the maturity or otherwise altering the terms or increasing the amount of any
Obligation, or accept additional security or release all or a portion of the
Property and other security for the Obligations. None of the foregoing actions
shall release or reduce the personal liability of any of said Interested
Parties, or release or impair the priority of the lien of this Deed of Trust
upon the Property.
6.17 RIGHT OF INSPECTION. Beneficiary, its agents and employees, may
enter the Real Property at any reasonable time, upon reasonable advance notice,
for the purpose of inspecting the Real Property and ascertaining Grantor's
compliance with the terms hereof.
ARTICLE 7. DEFAULT PROVISIONS
7.1 DEFAULT. For all purposes hereof, the term "Default" shall mean the
existence of any Event of Default as defined by Section 7 of the Loan Agreement.
7.2 RIGHTS AND REMEDIES. At any time after Default, Beneficiary shall
have all the following rights and remedies (in addition to (and without
limiting) any rights and remedies that are available hereunder, or under
applicable law):
(a) With or without notice, to declare all
Obligations immediately due and payable;
(b) With or without notice, and without releasing
Grantor from any Obligation, and without becoming a mortgagee
in possession, to cure any breach or Default of Grantor and,
in connection therewith, to enter upon the Real Property and
do such acts and things as Beneficiary or Trustee deems
necessary or desirable to protect the security hereof,
including, without limitation: (i) to appear in and defend any
action or proceeding purporting to affect the security of this
Deed of Trust or the rights or powers of Beneficiary; (ii) to
pay, purchase, contest or compromise any encumbrance, charge,
lien or claim of lien which, in the sole reasonable judgment
of Beneficiary or Trustee, is or may be senior in priority to
this Deed of Trust, the judgment of Beneficiary or Trustee
being conclusive as between the parties hereto; (iii) to
obtain insurance; (iv) to pay any premiums or charges with
respect to insurance required to be carried under the
16
Loan Documents; and (v) to employ counsel, accountants,
contractors and other appropriate persons;
(c) To commence and maintain an action or actions in
any court of competent jurisdiction to foreclose this Deed of
Trust or to obtain specific enforcement of the covenants of
Grantor hereunder, and Grantor agrees that such covenants
shall be specifically enforceable by injunction or any other
appropriate equitable remedy and that for the purposes of any
suit brought under this subparagraph, Grantor waives the
defense of laches and any applicable statute of limitations;
(d) To apply to a court of competent jurisdiction for
and obtain appointment of a receiver of the Real Property as a
matter of strict right and without regard to the adequacy of
the security for the repayment of the Obligations, the
existence of a declaration that the Obligations are
immediately due and payable, or the filing of a notice of
default, and Grantor hereby consents to such appointment;
(e) To enter upon, possess, manage and operate the
Real Property or any part thereof, to take and possess all
documents, books, records, papers and accounts of Grantor or
the then owner of the Real Property, to make, terminate,
enforce or modify Leases of the Real Property upon such terms
and conditions as Beneficiary deems proper, to make repairs,
alterations and improvements to the Real Property as
necessary, in Beneficiary's sole judgment, all to protect or
enhance the security hereof;
(f) Beneficiary may foreclose this Deed of Trust with
respect to Property which consists solely of real property,
either by judicial action or through the Trustee. If the
Beneficiary elects to foreclose on the Property through the
Trustee, foreclosure will be initiated by Beneficiary filing
its notice of election and demand for sale with the Trustee.
Upon the filing of such notice of election and demand for
sale, the Trustee shall promptly comply with all notice and
other requirements of the laws of Colorado then in force with
respect to such sales, and shall give four weeks' (or such
shorter time as may be allowed by applicable law at such time
as notice is required to be so given) public notice of the
time and place of such sale by advertisement weekly in some
newspaper of general circulation then published in Xxxxxx
County in which the Property is located. The actual place of
sale shall be specified in the notice of sale. At the
conclusion of any foreclosure sale, the officer conducting the
sale shall execute and deliver to the purchaser at the sale a
certificate of purchase which shall describe the property sold
to such purchaser and shall state that upon the expiration of
the applicable periods for redemption, the holder of such
certificate will be entitled to a deed to the property
described in the certificate. After the expiration of all
applicable periods of redemption, unless the property sold has
been redeemed by Grantor, the officer who conducted such sale
shall, upon request, execute and deliver an appropriate deed
to the holder of the certificate of purchase or the last
certificate of redemption, as the case may be, and such deed
shall operate to divest Grantor
17
and all persons claiming under Grantor of all right, title and
interest, whether legal or equitable, in the property
described in the deed. Nothing in this Section 7.2(f) dealing
with foreclosure procedures or specifying particular actions
to be taken by the Beneficiary or by the Trustee or any
similar officer shall be deemed to contradict or add to the
requirements and procedures now or hereafter specified by
Colorado law, and any such inconsistency shall be resolved in
favor of Colorado law applicable at the time of foreclosure.
(g) To resort to and realize upon the security
hereunder and any other security now or later held by
Beneficiary and/or Trustee concurrently or successively and in
one or several consolidated or independent judicial actions or
lawfully taken non-judicial proceedings, or both, and to apply
the proceeds received upon the Obligations all in such order
and manner as Beneficiary determines in its sole discretion;
(h) Upon sale of the Real Property pursuant to the
power of sale granted herein or at any judicial or
non-judicial foreclosure, Beneficiary may credit bid (as
determined by Beneficiary in its sole and absolute discretion)
all or any portion of the Obligations. In determining such
credit bid, Beneficiary may, but is not obligated to, take
into account all or any of the following: (i) appraisals of
the Real Property as such appraisals may be discounted or
adjusted by Beneficiary in its sole and absolute underwriting
discretion; (ii) expenses and costs incurred by Beneficiary
with respect to the Real Property prior to foreclosure; (iii)
expenses and costs which Beneficiary anticipates will be
incurred with respect to the Real Property after foreclosure,
but prior to resale, including, without limitation, costs of
structural reports and other due diligence, costs to carry the
Real Property prior to resale, costs of resale (e.g.
commissions, attorneys' and paralegals' fees, and taxes),
costs of any hazardous materials clean-up and monitoring,
costs of deferred maintenance, repair, refurbishment and
retrofit, costs of defending or settling litigation affecting
the Real Property, and lost opportunity costs (if any),
including the time value of money during any anticipated
holding period by Beneficiary; (iv) declining trends in real
property values generally and with respect to properties
similar to the Real Property; (v) anticipated discounts upon
resale of the Real Property as a distressed or foreclosed
property; (vi) the fact of additional collateral (if any), for
the Obligations; and (vii) such other factors or matters that
Beneficiary (in its sole and absolute discretion) deems
appropriate. In regard to the above, Grantor acknowledges and
agrees that: (w) Beneficiary is not required to use any or all
of the foregoing factors to determine the amount of its credit
bid; (x) this Section does not impose upon Beneficiary any
additional obligations that are not imposed by law at the time
the credit bid is made; (y) the amount of Beneficiary's credit
bid need not have any relation to any loan-to-value ratios
specified in the Loan Documents or previously discussed
between Grantor and Beneficiary; and (z) Beneficiary's credit
bid may be (at Beneficiary's sole and absolute discretion)
higher or lower than any appraised value of the Real Property.
18
(i) The rights and remedies of Beneficiary and/or
Trustee upon the occurrence of one or more Defaults (whether
such rights and remedies are conferred by statute, by rule of
law, by this Deed of Trust, by any Loan Document, as defined
in the Loan Agreement, or otherwise) may be exercised by
Beneficiary and/or Trustee, in the sole discretion of
Beneficiary, either alternatively, concurrently, or
consecutively in any order. The exercise by Beneficiary and/or
Trustee of any one or more of such rights and remedies shall
not be construed to be an election of remedies nor a waiver of
any other rights and remedies Beneficiary might have unless,
and limited to the extent that, Beneficiary shall so elect or
so waive by an instrument in writing delivered to Grantor.
Without limiting the generality of the foregoing, to the
extent that this Deed of Trust covers both Real Property and
Personal Property, Beneficiary and/or Trustee may, in the sole
discretion of Beneficiary, either alternatively, concurrently,
or consecutively in any order:
(i) proceed as to both the Real Property and
Personal Property in accordance with
Beneficiary's and Trustee's rights and
remedies in respect of the Real Property; or
(ii) proceed as to the Real Property in
accordance with Beneficiary's and Trustee's
rights and remedies in respect of the Real
Property and proceed as to the Personal
Property in accordance with Beneficiary's
and Trustee's rights and remedies in respect
of the Personal Property.
If Beneficiary should elect to proceed as to both the Real Property and Personal
Property collateral in accordance with Beneficiary's and/or Trustee's rights and
remedies in respect to the Real Property:
(i) all, or any portion of, the Real
Property and all, or any portion of, the
Personal Property may be sold, in the manner
and at the time(s) and place(s) provided in
this Deed of Trust, in one lot, or in
separate lots consisting of any combination
or combinations of Real Property and
Personal Property, as the Beneficiary may
elect, in the sole discretion of
Beneficiary.
(ii) Grantor acknowledges and agrees that a
disposition of the Personal Property
collateral in accordance with Beneficiary's
rights and remedies in respect of Real
Property, as hereinabove provided, is a
commercially reasonable disposition of said
collateral.
If Beneficiary should elect to proceed as to the Personal Property collateral in
accordance with Beneficiary's rights and remedies with respect to personal
property, Beneficiary shall have all the rights and remedies conferred on a
secured party by the UCC.
7.3 APPLICATION OF PROCEEDS. All sums received by Beneficiary or
Trustee, shall be applied in payment of the Obligations in the order set forth
by the Loan Agreement;
19
provided, however, Beneficiary and/or Trustee shall have no liability for funds
not actually received by Beneficiary.
7.4 NO CURE OR WAIVER. Neither Beneficiary's nor any receiver's entry
upon and taking possession of all or any part of the Real Property, nor any
collection of rents, issues, profits, insurance proceeds, condemnation proceeds
or damages, other security or proceeds of other security, or other sums, nor the
application of any collected sum to any Obligation, nor the exercise or failure
to exercise of any other right or remedy by Beneficiary or Trustee, or any
receiver, shall cure or waive any breach, Default or notice of default under
this Deed of Trust, or nullify the effect of any notice of default or sale
(unless all Obligations then due have been paid and performed and Grantor has
cured all other defaults), or impair the status of the security, or prejudice
Beneficiary in the exercise of any right or remedy, or be construed as an
affirmation by Beneficiary of any tenancy, lease or option or a subordination of
the lien of this Deed of Trust.
7.5 PAYMENT OF COSTS, EXPENSES AND ATTORNEY'S AND PARALEGALS' FEES.
Grantor agrees to pay to Beneficiary and Trustee immediately and upon demand all
reasonable costs and expenses incurred by Beneficiary and expenses incurred by
the Trustee in connection with the exercise of the rights and remedies provided
for herein and/or in any of the other Loan Documents (including, without
limitation, court costs, appraisal fees and reasonable attorneys' and
paralegals' fees, whether incurred in litigation or not, and all whether
internal costs, external costs or both) with interest from the date such amounts
are demanded hereunder until said sums have been paid, at the Default Rate set
forth by the Loan Agreement.
7.6 POWER TO FILE NOTICES AND CURE DEFAULTS. Grantor hereby irrevocably
appoints Beneficiary and/or Trustee, and their successors and assigns, as its
attorney-in-fact, which agency is coupled with an interest, (a) to execute
and/or record any notices of completion, cessation of labor, or any other
notices that Beneficiary deems in good faith are appropriate to protect
Beneficiary's interest, (b) upon the issuance of a deed pursuant to the
foreclosure of this Deed of Trust or power of sale granted herein, or the
delivery of a deed in lieu of foreclosure, to execute all instruments of
assignment or further assurance with respect to the Leases and Payments in favor
of the grantee of any such deed, as may be necessary or desirable for such
purpose, and (c) to prepare, execute and file or record financing statements,
continuation statements, applications for registration and like papers necessary
to create, perfect or preserve Beneficiary's security interests and rights in or
to any of the Personal Property and any other property or interests securing the
payment and the performance of the Obligations; and (d) upon the occurrence of
an event, act or omission which with notice or passage of time or both, would
constitute a Default, Beneficiary or Trustee may perform any obligation of
Grantor hereunder, that: (i) Beneficiary as such attorney-in-fact shall only be
accountable for such funds as are actually received by Beneficiary; and (ii)
Beneficiary and Trustee shall not be liable to Grantor or any other person or
entity for any failure to act under this Section.
ARTICLE 8. MISCELLANEOUS PROVISIONS
8.1 ADDITIONAL PROVISIONS. The Loan Documents contain or incorporate by
reference the entire agreement of the parties with respect to matters
contemplated herein and supersede all prior negotiations. The Loan Documents
grant further rights to Beneficiary and contain further agreements and
affirmative and negative covenants by Grantor which apply to
20
this Deed of Trust and to the Property and such further rights and agreements
are incorporated herein by this reference.
8.2 MERGER. No merger shall occur as a result of Beneficiary's
acquiring any other estate in, or any other lien on, the Property unless
Beneficiary consents to a merger in writing.
8.3 WAIVER OF MARSHALING RIGHTS. Grantor, for itself and for all
parties claiming through or under Grantor, and for all parties who may acquire a
lien on or interest in the Property, hereby waives all rights to have the
Property and/or any other property which is now or later may be security for any
Obligation ("Other Property") marshaled upon any foreclosure of this Deed of
Trust or on a foreclosure of any Other Property. Beneficiary shall have the
right to sell, and any court in which foreclosure proceedings may be brought
shall have the right to order a sale of, the Real Property and any or all of the
Personal Property or Other Property as a whole or in separate parcels, in any
order that Beneficiary may designate.
8.4 WAIVER OF RIGHTS OF REDEMPTION AND REINSTATEMENT. Grantor, for
itself and for all parties claiming through or under Grantor, and for all
parties who may acquire a lien on or interest in the Property, hereby waives any
and all rights of redemption and reinstatement under law and under any order or
decree of foreclosure of this Deed of Trust, and all such rights of redemption
and reinstatement of Grantor and of all other persons, are and shall be deemed
to be hereby waived to the full extent permitted by the provisions of the
applicable law.
8.5 EXERCISE OF REMEDIES. Notwithstanding any of the terms or
provisions contained in this Deed of Trust (or in any of the other Loan
Documents), if at any time after the occurrence of a Default under any of the
Loan Documents (but prior to the time (if any) that said Default has been cured
to the satisfaction of Beneficiary), Beneficiary or Trustee has commenced to
exercise one or more of its remedies provided for herein (or provided in any of
the other Loan Documents or available at law or in equity), Beneficiary will not
be precluded from continuing to exercise all of its rights and remedies upon
said Default (notwithstanding the fact that Grantor may have cured, attempted to
cure or be in the process of curing said Default). It is the intention of the
parties hereto that (to the extent permitted by law) once Beneficiary or Trustee
has commenced to exercise one or more of its rights or remedies (upon a
Default), said Default cannot be cured, unless Beneficiary expressly agrees in
writing to accept said cure and to cease the exercise of said rights and
remedies.
8.6 RULES OF CONSTRUCTION. The term: (i) "Real Property" means all and
any part of the Real Property and any interest in the Real Property; (ii)
"Personal Property" means all and any part of the Personal Property and any
interest in the Personal Property; and (iii) "Property" means all and any part
of the Property and any interest in the Property.
8.7 SUCCESSORS IN INTEREST. The terms, covenants, and conditions herein
contained shall be binding upon and inure to the benefit of the successors and
assigns of the parties hereto; provided, however, that this section does not
waive or modify any restrictions on transfer contained herein or in any of the
other Loan Documents.
21
8.8 GOVERNING LAW. This Deed of Trust shall, in all respects, be
governed by and construed in accordance with the internal laws of the State of
Colorado and applicable federal law. All references herein to the "UCC" shall be
to the Uniform Commercial Code as enacted in the State of Colorado.
8.9 NOTICES. All notices, reports, demands, requests and other
communications authorized or required under this Deed of Trust to be given to
Grantor or Beneficiary, shall be given in the manner and to the addresses
specified in the Loan Agreement for the giving of notices. Grantor shall forward
to Beneficiary, without delay, any notices, letters or other communications
delivered to the Real Property or to Grantor naming Beneficiary, "Lender" or any
similar designation as addressee, or which could reasonably be deemed to affect
the ability of Grantor to perform its obligations to Beneficiary under the Note,
the Loan Agreement or any other Loan Documents.
8.10 MAXIMUM INDEBTEDNESS; FUTURE ADVANCES. This Deed of Trust shall
secure not only existing indebtedness but also such future advances, whether
such advances are obligatory or to be made at the option of Beneficiary, or
otherwise, to the same extent as if such future advances were made on the date
of the execution of this Deed of Trust.
8.11 SEVERABILITY. If any provision or obligation under this Deed of
Trust shall be determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable, that provision shall be deemed severed from the Deed
of Trust and the validity, legality and enforceability of the remaining
provisions or obligations shall remain in full force as though the invalid,
illegal or unenforceable provision had never been a part of the Deed of Trust.
8.12 TIME. Time is of the essence of each and every term of this Deed
of Trust.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT CAN BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
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IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the
day and year set forth above.
GRANTOR
CONCORDE CRIPPLE CREEK, INC.,
A COLORADO CORPORATION
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Its: President
STATE OF COLORADO )
) Section
COUNTY OF XXXXXX )
On this 31st day of July, 2002, before me, a Notary Public in and for
said county, personally appeared Xxxxx Xxxx, to me personally known, who being
by me duly (sworn or affirmed), did say that he is the President of Concorde
Cripple Creek, Inc., a Colorado corporation, that said instrument was signed on
behalf of Concorde Cripple Creek, Inc. by authority of its Board of Directors
and that the said Board of Directors acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation by it
voluntarily executed.
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Notary Public
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EXHIBIT A
LEGAL DESCRIPTION
(FROM TITLE COMMITMENT)
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