CONSTRUCTION LOAN AGREEMENT
This Construction Loan Agreement (the "Agreement") is entered into between
First Credit Bank, hereinafter "Lender," and NevStar Gaming & Entertainment
Corporation, herein "Borrower," with reference to the following facts:
A. Borrower has applied to Lender for a construction loan in the amount
of Five Million Dollars ($5,000,000.00) for the purpose of financing the
construction of a hotel and casino building and other improvements incidental
thereto.
B. The Project is to be built on Borrower's Real Property located in
Xxxxx County, Nevada.
C. The Project is to be constructed in accordance with the Plans and
Specifications provided pursuant to the Architecture Contract and built by
Contractor pursuant to the Construction Contract.
D. The terms of repayment of the Construction Loan are as set forth on
the Note and the Note shall be secured by the Related Documents.
E. Lender agrees to make the loan to Borrower provided all terms,
conditions, and covenants hereof are satisfied, and all Related Documents and
Project Documents are executed and delivered as required by Lender.
Based upon the above, Borrower and Lender agree as follows:
I
DEFINITIONS
As used herein, the following terms shall have the following meanings:
A. Agreement. The word "Agreement" means this Construction Loan
Agreement, as this Construction Loan Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Construction Loan Agreement from time to time.
B. Architecture Contract. The words "Architecture Contract" mean the
contract between Borrower and Xxxxxxx & Xxxxxxx,a Nevada Professional
Corporation (License #109), who designed the Project.
C. Borrower. the word "Borrower" means each and every person or entity
signing the Note, including without limitation Nevstar Gaming & Entertainment
Corporation (formerly Mesquite Gaming Corp.), a Nevada corporation.
D. Collateral. The word "Collateral" means and includes without
limitation all property and assets granted as collateral security for a loan,
whether real or personal property, whether granted directly or indirectly,
whether
granted now or in the future, and whether granted in the form of a security
interest, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien,
charge, lien or title retention contract, lease or consignment intended as a
security device, or any other security or lien interest whatsoever, whether
created by law, contract, or otherwise.
E. Commencement Date. The words "Commencement Date" mean January
___,1998.
F. Completion Date. The words "Completion Date" mean July __, 1999.
G. Construction Budget. The words "Construction Budget" shall mean the
Construction Cost Breakdown attached hereto as Exhibit "B" and incorporated
herein
by reference, as the same may be amended from time to time with the consent and
approval of the Lender.
H. Construction Contract. The words "Construction Contract" mean and
include the contract between Borrower and AF Construction, a Nevada Corporation
(License #AB 22805), the general contractor for the Project,
(General Contractor),
and any subcontracts with subcontractors, materialmen, laborers, or any other
person or entity for performance of work on the Project or the delivery of
materials to the Project.
I. Contractor. The word "Contractor" means AF Construction, a Nevada
corporation (License #AB 22805), the General Contractor for the Project.
J. Event Of Default. The words "Event of Default" mean and include
without limitation any of the Events of Default set forth below in the section
titled "Events of Default."
K. Grantor. The word "Grantor" means and includes without limitation
each and all of the persons or entities granting a Security Interest in any
Collateral for the Indebtedness, including, without limitation, the Borrower
granting such a Security Interest.
L. Improvements. The word "Improvements" means any and all buildings,
structures, open parking areas and other improvements, and any and all
accessions,
additions, replacements, substitutions or alterations thereof or appurtenances
thereto, now or at any time hereafter situated, placed or constructed upon the
Property or any part thereof.
M. Indebtedness. The word "Indebtedness" means and includes without
limitation all Loans, together with all other obligations, debts and liabilities
of Borrower to Lender, or any one or more of them, as well as all claims by
Lender
against Borrower, or any one or more of them; whether now or hereafter existing,
voluntary or involuntary, due or not due, absolute or contingent, liquidated or
unliquidated; whether Borrower may be liable individually or jointly with
others,
whether Borrower may be obligated as a guarantor, surety, or otherwise; whether
recovery upon such Indebtedness may be or hereafter may become barred by any
statute of limitations; and whether such Indebtedness may be or hereafter may
become otherwise unenforceable.
N. Lender. The word "Lender" means First Credit Bank, its successors and
assigns.
O. Loan. The word "Loan" means the loan made to Borrower under this
Agreement and the Related Documents as described below.
P. Loan Fund. The words" Loan Fund" mean the undisbursed proceeds of the
Loan under this Agreement together with any equity funds or other deposits
required from Borrower under this Agreement.
Q. Note. The word "Note" means that certain Promissory Note of this same
date executed by Borrower, payable to the order of Lender, in the principal sum
of Five Million Dollars ($5,000,000.00), bearing interest at a Variable Interest
Rate and being payable as therein provided, together with any and all renewals,
extensions, modifications, substitutions, replacements and expansions thereof
(herein the "Note").
R. Personal Property Collateral. The words "Personal Property
Collateral" shall have the same meaning as the term "Personalty" is defined
in the
Construction Deed of Trust and Security Agreement with Assignment of Rents to be
executed concurrently herewith by Borrower.
S. Plans And Specifications. The words "Plans and Specifications" means
the plans and specifications for the Project which have been submitted to and
initialed by Lender, together with such changes and additions as may be approved
by Lender in writing.
T. Project. The word "Project" means the construction and completion of
all Improvements contemplated by this Agreement, including, without limitation,
the erection of the buildings or structures and the other work set forth in the
Construction Budget generally described as follows:
Construction of a hotel and casino building on an approximately 27-acre
parcel of land located on the southeast corner of Mesquite Boulevard and the
I-15 freeway in the City of Mesquite, Nevada.
U. Project Documents. The words "Project Documents" means the Plans and
Specifications, all studies, data, and drawings relating to the Project, whether
prepared by or for Borrower, the Construction Contract, the Architecture
Contract,
and all other contracts and agreements relating to the Project or the
construction
of the Improvements.
V. Property. The word "Property" means the Real Property together with
all Improvements, fixtures, and Personal Property Collateral, together with all
accessions, parts, and additions to, all replacements of, and all substitutions
for any of such property, and all proceeds (including insurance proceeds and
refunds of premiums) from any sale or other disposition of such property.
W. Real Property. The words "Real Property" mean the real property
located in Xxxxx County, State of Nevada, and legally described as:
See Exhibit "A" attached hereto and incorporated herein by this
reference.
X. Related Documents. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
Y. Security Agreement. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security Interest.
Z. Security Interest. The words "Security Interest" mean and include
without limitation any type of collateral security, whether in the form of a
lien,
charge, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or
title retention, contract, lease or consignment intended as a security
device, or any other
security or lien interest whatsoever, whether created by law, contract,
or otherwise.
AA. Value. The word "Value" means such amount or worth as defined and
determined by Lender in its sole discretion unless agreed to the contrary by
Lender in writing.
II
THE LOAN
A. Description Of Loan. The Loan shall be in an amount not to exceed the
principal sum of U.S. $5,000,000.00 and shall bear interest on so much of the
principal sum as shall be advanced pursuant to the terms of this Agreement
and the
Related Documents. The Loan shall bear interest on each Advance from the
date of
the Advance in accordance with the terms of the Note. Borrower shall use the
Loan
Funds solely for the payment of (a) the costs of constructing the Improvements
and of partially equipping the Project with the Personal Property Collateral in
accordance with the Construction Contract and the Construction Budget; (b)
other
costs and expenses incurred or to be incurred in connection with the
construction
of the Improvements as Lender in its sole discretion shall approve; and (c) if
permitted by Lender, interest due under the Note, including all expenses and all
loan and commitment fees described in this Agreement. The Loan amount shall be
subject at all times to all maximum limits and conditions set forth in this
Agreement or in any of the Related Documents, including without limitation, any
limits relating to loan to value ratios and acquisition and Project costs.
B. Fees And Expenses. As a condition of Lender's making the Loan,
Borrower agrees to pay the following fees, charges, and expenses, in addition to
all others set forth in this Agreement: Loan Origination Fee, $125,000; Loan
Extension Fee, $50,000.00 (Borrower's right to extend the term of the Loan being
evidenced by a separate letter agreement of this same date); Fund Control and
Inspection Fee, $25,000.00; Processing, Credit Verification, Title, Appraisal
and
Environmental Review, Documentation and Legal Review, $12,000.00;
Escrow and Title
Fees and Costs, $20,000.00. Whether or not the Project shall be consummated,
Borrower shall assume and pay upon demand all out-of-pocket expenses incurred by
Lender in connection with the preparation of loan documents and the making of
the
Loan, including without limitation the following: (a) all closing costs, fees
and disbursements; (b) all expenses of Lender's legal counsel; and (c) all
title
examination fees, title insurance premiums, appraisal fees, survey costs,
required
fees, and filing and recording fees.
C. Security. The Construction Loan shall be secured by the terms of
certain of the Related Documents. Disbursement of the Loan Funds shall be
conditioned upon the execution and delivery of the Related Documents granting
the
Security Interests and containing such terms and conditions as may reasonably be
required by Lender, and in Lender's discretion.
III
DISBURSEMENT OF CONSTRUCTION LOAN
A. Conditions Precedent To Each Advance. Lender's obligation to make the
initial Advance and each subsequent Advance under this Agreement shall be
subject
to the fulfillment to Lender's satisfaction of all of the conditions set
forth in
this Agreement.
1. Special Conditions To Subsequent Advances. BORROWER
ACKNOWLEDGES THAT, BEFORE ANY SUBSEQUENT ADVANCE OF LOAN FUNDS, OTHER THAN THE
INITIAL DISBURSEMENT OF THE LOAN FUNDS, IS MADE BY LENDER, BORROWER SHALL HAVE
DELIVERED TO LENDER RECEIPTS, INVOICES, AND RELEASES EVIDENCING EXPENDITURES ON
THE PROJECT OUT OF SUBORDINATE FINANCING OR BORROWER'S EQUITY FUND OF NOT LESS
THAN $6,000,000, SAID EXPENDITURES TO BE EXCLUSIVE OF COSTS OF ACQUIRING THE
REAL
PROPERTY.
2. Approval Of Contractors, Subcontractors, And Materialmen.
Lender shall have approved a list of all contractors employed in connection with
the construction of the Improvements, showing the name, address, and telephone
number of each contractor, a general description of the nature of the work to be
done, the labor and materials to be supplied, the names of materialmen,
if known,
and the approximate dollar value of the labor, work, or materials with
respect to
each contractor or materialman. Lender shall have the right to communicate with
any person to verify the facts disclosed by the list or by any application
for any
Advance, or for any other purpose.
3. Plans, Specifications, And Permits. Lender shall have received
and accepted a complete set of Plans and Specifications setting forth all
Improvements for the Project, and Borrower shall have furnished to Lender copies
of all permits and requisite approvals of any governmental body necessary for
the
construction and use of the Project.
4. Architecture And Construction Contracts. Borrower shall have
furnished in form and substance satisfactory to Lender an executed copy of the
Architecture Contract and an executed copy of the Construction Contract.
5. Support Documents. Borrower shall provide to Lender in form
satisfactory to Lender the following support documents for the loan: Assignment
of Architecture Contract, Architect's Certificate, and Assignment of
Construction
Contract.
6. Budget And Schedule Of Estimated Advances. Lender shall have
approved any modifications or changes to the Construction Budget and the Advance
otherwise conforms to the Construction Budget.
7. Borrower's Authorization. Borrower shall have provided in form
and substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of the Loan documents, and the
consummation
of the Project, and such other authorizations and other documents as Lender
in its
sole discretion may require.
8. Appraisal. If required by Lender, an appraisal shall be
prepared for the Property, at Borrower's expense, which in form and substance
shall be satisfactory to Lender, in its sole discretion, including applicable
regulatory requirements.
9. Plans And Specifications. If requested by Lender, Borrower
shall have assigned to Lender on Lender's forms the Plans and Specifications for
the Project.
10. Environmental Report. If requested by Lender, Borrower shall
have furnished to Lender, at Borrower's expense, an environmental report and
certificate on the Property in form and substance satisfactory to Lender,
prepared
by an engineer or other expert satisfactory to Lender stating that the Property
complies with all applicable provisions and requirements of the Related
Documents
11. Soil Report. If requested by Lender, Borrower shall have
furnished to Lender, at Borrower's expense, a soil report for the Property in
form
and substance satisfactory to Lender, prepared by a registered engineer
satisfactory to Lender stating that the Property is free from soil or other
geological conditions that would preclude its use or development as contemplated
without extra expense for precautionary, corrective or remedial measures.
12. Survey. If requested by Lender, Borrower shall have furnished
to Lender a survey of recent date, prepared and certified by a qualified
surveyor
and providing that the Improvements, if constructed in accordance with the Plans
and Specifications, shall lie wholly within the boundaries of the Property
without
encroachment or violation of any zoning ordinances, building codes or
regulations,
or setback requirements, together with such other information as lender in its
sole discretion may require.
13. Zoning. Borrower shall have furnished evidence satisfactory to
Lender that the Property is duly and validly zoned for the construction,
maintenance, and operation of the Project.
14. Title Insurance. Borrower shall have provided to Lender an ALTA
Lender's extended coverage policy of title insurance with such endorsements as
Lender may require, issued by a title insurance company acceptable to Lender and
in a form, amount, and content satisfactory to Lender, insuring or agreeing to
insure that Lender's Mortgage or Deed of Trust on the Property is or will be
upon
recordation a valid first lien on the Property free and clear of all defects,
liens, encumbrances, and exceptions except those as specifically accepted by
Lender in writing. If requested by Lender, Borrower shall provide to Lender, at
Borrower's expense, the following endorsements: (i) Form 100 endorsement; (ii)
Form 102.5 endorsement; (iii) Form 103.1 endorsement; (iv) Form 103.7
endorsement; (v) Form 108.8 endorsement; (vi) Form 110.9 endorsement;(vii)
Form
111.8 endorsement; (viii) Form 116 endorsement; (ix) Form 116.1 endorsement
referring to the Survey of the subject real property prepared by _________ of
Nevada, Inc. dated ____, 1997, a copy of which Survey shall be attached to the
endorsement; (x) Form 116.4 endorsement; (xi) Form 116.7 endorsement;
and (xii)
Form 123.2 endorsement.
15. Insurance. Unless waived by Lender in writing, Borrower shall
have delivered to Lender the following insurance policies or evidence thereof:
(a) an all risks course of construction insurance policy (builder's risk), with
extended coverage covering the Improvements issued in an amount and by a company
acceptable to Lender, containing a loss payable or other endorsement
satisfactory
to Lender insuring Lender as mortgagee, together with such other endorsements as
may be required by Lender, including stipulations that coverages will not be
canceled or diminished without at least ten (10) days' prior written notice to
Lender; (b) owners and General Contractor general liability insurance, public
liability and workmen's compensation insurance; (c) flood insurance if
reasonably
required
by Lender or applicable law; and (d) all other insurance required by this
Agreement or by the Related Documents.
16. Workers' Compensation Coverage. Provide to Lender proof of the
General
Contractor's compliance with all applicable workers' compensation laws and
regulations with regard to all work performed on the Project.
17. Payment Of Fees And Expenses. Borrower shall have paid to
Lender all expenses specified in this Agreement as are then due and payable.
18. Satisfactory Construction. All work usually done at the stage
of construction
for which disbursement is requested shall have been furnished and
installed, all in compliance with the Plans and Specifications. Borrower shall
also have furnished to Lender such proofs as Lender may require to establish the
progress
of the work, compliance with applicable laws, freedom of the Property
from liens, and the basis for the requested disbursement.
19. Certification. Borrower shall have furnished to Lender a
certification by an engineer, architect, or other qualified inspector acceptable
to Lender
that the construction of the Improvements has complied and will continue
to comply with all applicable statutes, ordinances, codes, regulations, and
similar requirements.
20. Lien Waivers. Borrower shall have obtained and attached to each
application for an Advance, including the Advance to cover final payment to the
General Contractor, executed acknowledgements of payments of all sums due and
releases of mechanics' and materialmen's liens, satisfactory to Lender, from any
party having lien rights, which acknowledgments of payment and releases of liens
shall cover all work, labor, equipment, materials done, supplied, performed, or
furnished prior to such application for an Advance.
21. Lack Of Default. There shall not exist at the time of any
Advance a condition which would constitute an Event of Default under this
Agreement.
A. Disbursement Of Loan Proceeds. The following provisions relate to the
disbursement of funds from the Loan Fund.
1. Application For Advances. Each application shall be stated on
a standard
AIA payment request form or other form approved by Lender, executed by
Borrower, and supported by such evidence as Lender shall reasonably require,
including, without limitation, a description of the items for which disbursement
is requested,
with references to the line item or items of the Construction Budget
which includes the item for which disbursement is requested and a statement
showing the percentage of work performed or services rendered under each budget
line item through the date of the application for Advance. Borrower shall apply
only for
disbursement with respect to work actually done by the General Contractor
and for materials and equipment actually incorporated into the Project. Each
application
for an Advance shall be deemed a certification of Borrower that as of
the date of such application, all representations and warranties contained in
the Agreement are true and correct, and that Borrower is in compliance with
all of the provisions of this Agreement.
2. Payments. At the sole option of Lender, Advances may be paid
in the joint names of Borrower and the General Contractor, subcontractor(s), or
supplier(s) in payment of sums due under the Construction Contract. At its sole
option, Lender may directly pay the General Contractor and any subcontractors or
other parties the sums due under the Construction Contract. Borrower appoints
Lender as
its attorney-in-fact to make such payments. This power shall be deemed
to be coupled with an interest, shall be irrevocable, and shall survive an Event
of Default under this Agreement.
3. Projected Cost Overruns. If Lender at any time determines in
its reasonable discretion that the amount of the Loan Fund is insufficient, or
will be insufficient, to complete fully and to pay for the Project, then within
ten (10) days after receipt of a written request from Lender, Borrower shall
deposit in the Loan Fund an amount equal to the deficiency as determined by
Lender. Any such amounts deposited by Borrower shall be disbursed prior to any
Loan proceeds.
4. Final Payment To General Contractor. Upon completion of the
Project
and fulfillment of the Construction Contract to the satisfaction of Lender
and
provided sufficient Loan Funds are available, Lender shall make an Advance to
cover the final payment due to the General Contractor upon delivery to Lender of
endorsements to the ALTA title insurance policy following the posting of the
completion notice, as provided under applicable law. Construction shall not be
deemed complete for purposes of final disbursement unless and until Lender shall
have received all of the following:
a. Evidence satisfactory to Lender that all work under the
Construction Contract requiring inspection by any governmental authority with
jurisdiction has been duly inspected and approved by such authority, that a
certificate of occupancy has been issued, and that all parties performing work
have been paid, or will be paid, for such work;
b. A certification by an engineer, architect, or other
qualified
inspector acceptable to Lender that the Improvements have been completed
substantially
in accordance with the Plans an Specifications and the Construction
Contract, that direct connection has been made to all utilities set forth in the
Plans and Specifications, and that the Project is ready for occupancy; and
c. Acceptance of the completed Improvements by Lender and
Borrower.
Notwithstanding
any other provision of this Agreement to the contrary, Lender may
retain
the final $150,000.00 of Loan proceeds to be paid as the final disbursement
of Loan proceeds upon satisfaction of the conditions set forth above.
5. Construction Default. If Borrower fails in any material respect
to comply with the provisions of this Agreement or if construction ceases in
violation of paragraph A.13. of article IV below, Lender, at its option, may
refuse to make further Advances, may accelerate the indebtedness under the terms
of the Note, and without thereby impairing any of its rights, powers, or
privileges, may enter into possession of the construction site and perform or
cause to be performed any and all work and labor necessary to complete the
Improvements, substantially in accordance with the Plans and Specifications.
6. Damage Or Destruction. If any of the Property or Improvements
is damaged or destroyed by casualty of any nature, within sixty (60) days
thereafter Borrower shall restore the Property and Improvements to the condition
in which they were before such damage or destruction with funds other than those
in the Loan Fund.
Lender shall not be obligated to make disbursements under this
Agreement until such restoration has been accomplished.
7. Right To Advance Funds. When any event occurs that Lender
reasonably determines may endanger completion of the Project or the fulfillment
of any condition or covenant in this Agreement, Lender may require Borrower to
furnish, within ten (10) business days after delivery of a written request,
adequate
security to eliminate, reduce, or indemnify Lender against, such danger.
In addition,
upon such occurrence, Lender in its sole discretion may advance funds
or agree to undertake to advance funds to any party to eliminate, reduce, or
indemnify Lender against, such danger or to complete the Project. All sums paid
by Lender pursuant to such agreements or undertakings shall be for Borrower's
account and shall be without prejudice to Borrower's rights, if any, to receive
such funds from the party to whom paid. All sums expended by Lender in the
exercise
of its option to complete the Project or protect Lender's interests shall
be payable to Lender on demand
together with interest form the date of the Advance
at the rate applicable to the Loan. In addition, any Advance of funds under this
Agreement, including without limitation direct disbursements to the General
Contractor or other parties in payment of sums due under the Construction
Contract, shall be deemed to have been expended by or on behalf of Borrower and
to have been secured by Lender's Mortgage or Deed of Trust, if any, on the
Property.
B. Limitation Of Responsibility. The making of any Advance by Lender
shall not constitute or be interpreted as either (a) an approval or acceptance
by Lender of the work done through the date of the Advance, or (b) a
representation or indemnity by Lender to any party against any deficiency or
defect in the work or against any breach of any contract. Inspections and
approvals of the Plans and Specifications, the Improvements, the workmanship and
materials used in the Improvements, and the exercise of any other right of
inspection, approval, or inquiry granted to Lender in this Agreement are
acknowledged to be solely for the protection of Lender's interests, and under no
circumstances shall they be construed to impose any responsibility or liability
of any nature whatsoever on Lender to any party. Neither Borrower nor any
contractor, subcontractor, materialman, or approval by Lender shall constitute a
representation by Lender as to the nature of the Project,its construction,
or its
intended use for Borrower or for any other person, nor shall it constitute an
indemnity by Lender to Borrower or to any other person against any deficiency or
defects in the Project or against any breach of any contract.
IV
COVENANTS AND AGREEMENTS OF BORROWER
A. Affirmative Covenants. Borrower covenants and agrees with Lender
that, while this Agreement is in effect, Borrower will:
1. Litigation. Promptly inform Lender in writing of (a) all
material adverse changes in Borrower's financial condition, and (b)
all existing
and all threatened litigation, claims, investigations, administrative
proceedings
or similar actions affecting Borrower or any Guarantor which could materially
affect the financial condition of Borrower or the financial condition of any
Guarantor.
2. Financial Records. Maintain its books and records in accordance
with generally accepted accounting principles, applied on a consistent basis,
and
permit Lender to examine and audit Borrower's books and records at all
reasonable
times.
3. Additional Information. Furnish such additional information and
statements, lists of assets and liabilities, agings of receivables and payables,
inventory schedules, budgets, forecasts, tax returns, and other reports with
respect to Borrower's financial condition and business operations as Lender may
reasonably request from time to time.
4. Compliance With Governmental Requirements. Comply with all
laws, ordinances, and regulations, now or hereafter in effect, of all
governmental
authorities applicable to the use or occupancy of the Property, including
without
limitation, the Americans With Disabilities Act. Borrower may contest in good
faith any such law, ordinance, or regulation and withhold compliance during any
proceeding, including
appropriate appeals, so long as Borrower has notified Lender
in writing prior to doing so and so long as, in Lender's reasonable opinion,
Lender's interests in the Property are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lender's interest.
5. Construction Of The Project. Commence construction of the
Project no later than the Commencement Date, and cause the Improvements to be
constructed
and equipped in a diligent and orderly manner and in strict accordance
with the Plans, Specifications, and Construction Budget approved by Lender, the
Construction Contract, and all applicable laws, ordinances, codes, regulations,
and rights of adjoining or concurrent property owners. Borrower agrees to
complete the Project for purposes of final payment to the General Contractor on
or before the Completion Date, regardless of the reason for any delay.
6. Loan Proceeds. Use the Loan Funds solely for payment of bills
and expenses directly related to the Project.
7. Defects. Upon demand of lender, promptly correct any defect in
the Improvements or any departure from the Plans and Specifications not approved
by Lender before further work shall be done upon the portion of the Improvements
affected.
8. Project Claims And Litigation. Promptly inform Lender of (a)
all
material adverse changes in the financial condition of the General Contractor;
(b) any
litigation and claims, actual or threatened, affecting the Project or the
General Contractor,
which could materially affect the successful completion of the
Project or the ability of the General Contractor to complete the Project as
agreed; and (c) any condition or event which constitutes a material breach or
default under
any of the Related Documents or any contract related to the Project.
9. Payment Of Claims And Removal Of Liens. (a) Cause all claims
for labor done and materials and services furnished in connection with the
Improvements to be fully paid and discharged in a timely manner, (b) diligently
file or procure the filing of a valid notice of completion of the Improvements,
or such comparable document as may be permitted under applicable lien laws, (c)
diligently
file or procure the filing of a notice of cessation, or such comparable
document as may be permitted under applicable lien laws, upon the happening of
cessation of labor on the Improvements for a continuous period of thirty (30)
days
or more, and (d) take all reasonable steps necessary to remove all claims of
liens against the Property, the Improvements, or any part of the Property or
Improvements, or any rights or interests appurtenant to the Property or
Improvements. Upon Lender's request, Borrower shall make such demands or claims
upon or against laborers, materialmen, subcontractors, or other person who have
furnished or claim to have furnished labor, services, or materials in connection
with the Improvements, which demands or claims shall under the laws of the State
of Nevada require diligent assertions of lien claims upon penalty of loss or
waiver thereof. Borrower shall,
within thirty (30) days after filing of any claim
of lien that is disputed or contested by Borrower, provide Lender with a surety
bond issued by a surety acceptable to Lender sufficient to release the claim of
lien or deposit with Lender an amount satisfactory to Lender for the possibility
that the contest will be unsuccessful. If Borrower fails to remove any lien on
the Property or Improvements or provide a bond or deposit pursuant to this
provision,
Lender may pay such lien, or may contest the validity of the lien, and
Borrower shall pay all costs and expenses of such contest, including Lender's
reasonable attorneys' fees.
10. Taxes And Claims. Pay and discharge when due all of Borrower's
indebtedness, obligations, and claims that, if unpaid, might become a lien or
charge upon the Property or Improvements; provided, however, that Borrower shall
not be required to pay and discharge any such indebtedness, obligation, or claim
so long as (a) its legality shall be contested in good faith by appropriate
proceedings, (b) the
indebtedness, obligation or claim does not become a lien or
charge upon the
Property or Improvements, and (c) Borrower shall have established
on its books
adequate reserves with respect to the amount contested in accordance
with generally accepted accounting practices. If the indebtedness, obligation,
or claim
does become a lien or charge upon the Property or Improvements, Borrower
shall remove the lien or charge as provided in the preceding paragraph.
11. Performance. Perform and comply with all terms, conditions, and
provisions
set forth in this Agreement and in all other instruments and agreements
between Borrower and Lender, and in all other loan agreements now or hereafter
existing between Borrower and any other party. Borrower shall notify Lender
immediately in writing of any material default in connection with any agreement.
12. Additional Assurances. Make, execute, and deliver to Lender
such Security
Agreements, instruments, documents, and other agreements reasonably
necessary to document and secure the Loan and to perfect Lender's Security
Interests in the Property and Improvements.
13. Construction Of Improvements. Construction of the Improvements
shall be prosecuted with diligence and continuity, in a good and workmanlike
manner, in accordance with the Plans and Specifications, all applicable laws and
regulations and the requirements hereof. Borrower shall not permit cessation of
work for a period in excess of thirty (30) days without prior written consent of
Lender;
provided, however, that this limitation shall not apply in the case of any
cessation
of work due to unusually prolonged periods of ice, snow, rain, strikes,
or other labor troubles, unavailability of materials, national emergency, any
rule, order or regulation of any governmental body having jurisdiction, or other
similar cause not within Borrower's control; provided, further, that Borrower
shall give prompt written notice of such cause or delay to Lender, and Borrower
shall promptly
recommence work immediately upon termination of such cause of delay
and diligently prosecute the same to completion. Borrower shall complete
construction of
the Improvements on or before the Completion Date, free and clear
of all liens.
14. Storage Of Materials. Borrower shall cause all materials
supplied for,
or intended to be utilized in, the construction of the Improvements,
but not affixed
to or incorporated into the Improvements or the Property, to be
stored on the Property, with adequate safeguards, as required by Lender, to
prevent loss, theft, damage or commingling with other materials or projects.
15. Inspection Of Property. Borrower shall permit Lender and
Lender's agents and representatives, including any architects or engineers
retained by Lender, to enter upon the Property and any other location where
materials intended to be utilized in the construction on the Improvements are
stored for the purpose of inspection of the Property and such materials at all
reasonable times.
16. Application Of Advances. Borrower shall ensure that all
advances of Construction Loan proceeds made by the Lender will be disbursed for
the payment of the costs and expenses specified in the Construction Budget and
Borrower's
application for Advance, and for no other purpose without the expressed
written consent of the Lender.
17. No Liability Of Lender. Lender shall have no liability,
obligation or responsibility whatsoever with respect to the construction of the
Improvements
except to advance the Loan Funds pursuant to this Agreement. Lender
shall not be obligated to inspect the Property or the construction of the
Improvements, nor be liable for the performance or default of Borrower,
contractor, or any other party, or for any failure to construct, complete,
protect, or insure the Improvements, or for the payment of costs of labor,
materials, or services supplied for the construction of the Improvements, or for
the performance of any obligation of Borrower whatsoever.
18. Additional Security. As additional security for the performance
of Borrower's obligations under the Related Documents, Borrower irrevocably
assigns to Lender, and grants to Lender a Security Interest in all governmental
permits obtained for the lawful construction of the Project, the Construction
Contract, the Architecture Contract, the Plans and Specifications, and all
reserves,
deferred payments, deposits, refunds, costs savings, and payments of any
kind
relating to the construction of the Project. Upon any default of Borrower and
not withstanding any of the provisions of this Agreement, Lender may use any of
the foregoing, the Loan Funds and Borrower's deposits for any purpose for which
Borrower should have used them under this Agreement or with respect to the
construction
or financing of the Project. Lender shall have all other rights and
remedies with respect to any of the foregoing that are provided under applicable
law or in equity.
B. Negative Covenants. Borrower covenants and agrees with Lender that
while this Agreement is in effect, Borrower shall not, without the prior written
consent of Lender:
1. Indebtedness And Liens. (a) Except for (i) existing
indebtedness which is subordinated in writing to the Loan, (ii) additional
financing
incurred to pay for the costs of constructing and equipping the Project
and which is subordinate to the Loan and obtained from an FDIC insured financial
institution or other lender acceptable to Lender, and (iii) trade debt incurred
in the normal course of business, create, incur, or assume indebtedness for
borrowed
money in connection with the Project or Property, or (b) sell, transfer,
assign, or lease the Property. Lender and Borrower acknowledge and agree that
Borrower may independently finance various items of furniture, furnishings, and
equipment necessary for the Project so long as any security interest granted or
lease entered into by Borrower for the benefit of a person or entity other than
Lender does
not adversely affect the priority of Lender's security interest in the
Personal Property Collateral or the Real Property.
2. Continuity Of Operations. (a) Engage in any business
activities substantially different than those in which Borrower is presently
engaged, or (b) cease operations, liquidate, merge, transfer, acquire or
consolidate
with any other entity, change ownership, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of business.
3. Modification Of Contract. Make or permit to be made any
modification of the Construction Contract.
4. Liens. Create or allow to be created any lien or charge upon
the Property or the Improvements.
V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender, as of the date of this
Agreement, as of the date of each disbursement of Loan Funds, as of the date of
any renewal, extension, or modification of any Loan, and at all times any
Indebtedness exists:
A. Organization. Borrower is a corporation which is duly organized,
validly existing, and in good standing under the laws of the state of Nevada and
is validly
existing and in good standing in all states in which Borrower is doing
business.
Borrower has the full power and authority to own its properties and to
transact
the businesses in which it is presently engaged or presently proposes to
engage. Borrower also is duly qualified as a foreign corporation and is in good
standing in all states in which the failure to so qualify would have a material
adverse effect on its businesses or financial condition.
B. Authorization. The execution, delivery, and performance of this
Agreement by Borrower, to the extent to be executed, delivered, or performed by
Borrower, have been duly authorized by all necessary action by Borrower; do not
require the consent or approval of any other person, regulatory authority or
governmental body; and do not conflict with, result in a violation of, or
constitute
a default under (a) any provision of its articles of incorporation or
organization, or bylaws, or any agreement or other instrument binding upon
borrower or (b) any law, governmental regulation, court decree, or order
applicable to Borrower.
C. Financial Information. Each financial statement of Borrower supplied
to Lender
truly and completely disclosed Borrower's financial condition as of the
date of the
statement, and there has been no material adverse change in Borrower's
financial condition
subsequent to the date of the most recent financial statement
supplied to Lender. Borrower has no material contingent obligations except as
disclosed in such financial statements.
D. Litigation And Claims. No litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid taxes)
against Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or properties,
other than litigation, claims, or other events, if any, that have been disclosed
to and acknowledged by Lender in writing.
E. Title To Property. Borrower has, or on the date of the first
disbursement of the Loan Funds will have, good and marketable title to the
Property free and claim of all defects, liens, and encumbrances, excepting only
liens
for taxes, assessments, or governmental charges or levies not yet delinquent
or payable
without penalty or interest, and such liens and encumbrances as may be
approved in writing by the Lender.
F. Project Costs. The total cost for the Project shall not exceed the
total amount
set forth in the Construction Budget, as the same may be amended and
modified with the approval of Lender from time to time. The Project costs are
true and accurate estimates of the costs necessary to complete the Improvements
in a good and workmanlike manner according to the Plans and Specifications
presented by Borrower to Lender, and Borrower shall take all steps necessary to
prevent the actual cost of the Improvements from exceeding the Project costs.
G. Utility Services. All utility services appropriate to the use of the
Project after completion of construction are available at the boundaries of the
Property.
H. Access. The Property is contiguous to publicly dedicated streets,
roads, or highways providing access to the Property.
I. Assessment Of Property. The Property is and will continue to be
assessed and taxed as an independent parcel by all governmental authorities.
J. Compliance With Governing Authorities. Borrower has examined and is
familiar with all the easements, covenants, conditions, restrictions,
reservations, building laws, regulations, zoning ordinances, and federal, state,
and local requirements affecting the Project. The Project will at all times and
in all respects conform to and comply with the requirements of such easements,
covenants, conditions, restrictions, reservations, building laws, regulations,
zoning ordinances, and federal, state, and local requirements.
K. Legal Effect. This Agreement constitutes, and any instrument or
agreement required hereunder to be given by Borrower when delivered will
constitute, legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their respective terms.
L. Binding Effect. This Agreement, the Note, and all Security Agreements
directly
or indirectly securing repayment of Borrower's Loan and Note are binding
upon Borrower
as well as upon Borrower's successors, representatives and assigns,
and are legally enforceable in accordance with their respective terms.
M. Survival Of Representation And Warranties. Borrower understands and
agrees that Lender is relying upon the above representations and warranties in
extending Loan Advances to Borrower. Borrower further agrees that the foregoing
representations and warranties shall be continuing in nature and shall remain in
full force and effect until such time as Borrower's Loan and Note shall be paid
in full,
or until this Agreement shall be terminated in the manner provided above,
whichever is the last to occur.
VI
GENERAL PROJECT PROVISIONS
The following provisions relate to the construction and completion of the
Project:
A. Change Orders. All requests for changes in the Plans and
Specifications, other than minor changes involving no material increase in cost,
must be in writing, signed by Borrower and the architect, include any proposed
changes or modifications to the Construction Budget resulting from the change
order, and delivered to Lender for its approval. Borrower will not permit the
performance of any work pursuant to any change order or modification of the
Construction
Contract or any subcontract without the written approval of Lender.
Borrower will obtain any required permits or authorizations from governmental
authorities
having jurisdiction before approving or requesting a new change order.
B. Purchase Of Materials; Conditional Sales Contracts. No construction
materials, fixtures, or other items of personal property specifically included
within the definition of Personal Property Collateral placed in or incorporated
into the Project shall be purchased or installed under any Security Agreement or
other agreement whereby the seller reserves or purports to reserve title or the
right
of removal or repossession, or the right to consider such items as personal
property after their incorporation into the Project, unless otherwise authorized
by Lender in writing. Notwithstanding the foregoing, Lender and Borrower
acknowledge and agree that Borrower may independently finance various items of
furniture, furnishings, and equipment necessary for the Project so long as any
security interest granted or lease entered into by Borrower for the benefit of a
person or entity other than Lender does not adversely affect the priority of
Lender's security interest in the Personal Property Collateral or the Real
Property.
C. Lender's Right Of Entry And Inspection. Lender and its agents shall
have
at all times the right of entry and free access to the Property and the right
to inspect all work done, labor performed, and materials furnished with respect
to the Project. Lender shall have unrestricted access to and the right to copy
all records, accounting books, contracts, subcontracts, bills, statements,
vouchers,
and supporting documents of Borrower relating in any way to the Project.
D. Lender's Right To Stop Work. If Lender in good faith determines that
any work or materials do not conform to the approved Plans and Specifications or
sound
building practices, or otherwise depart from any of the requirements of this
Agreement, Lender may require the work to be stopped and withhold disbursements
until
the matter is corrected. In such event, Borrower will promptly correct the
work to Lender's satisfaction. No such action by Lender will affect Borrower's
obligation
to complete the Improvements on or before the Completion Date. Lender
is under
no duty to supervise or inspect the construction or examine any books and
records. Any inspection or examination by Lender is for the sole purpose of
protecting
Lender's security and preserving Lender's rights under this Agreement.
No default of Borrower will be waived by any inspection by Lender. In no event
will any inspection by Lender be a representation that there has been or will be
compliance
with the Plans and Specifications or that the construction is free from
defective materials or workmanship.
E. Indemnity. Borrower shall indemnify and hold Lender harmless from any
and all claims asserted against Lender or the Property by any person, entity, or
governmental
body arising out of or in connection with the Property, Improvements,
or Project except for those claims arising out of the gross negligence or
intentional
acts or omissions of Lender or Lender's employees and agents. Lender
shall be entitled to appear in any action or proceeding to defend itself against
such claims, and all costs incurred by Lender in connection with such defense,
including attorneys' fees, shall be paid by Borrower to Lender. Lender shall,
in its sole discretion, be entitled to settle or compromise any asserted claims
against it, and such settlement shall be binding upon Borrower for purposes of
this indemnification. All amounts paid by Lender under this paragraph shall be
secured by Lender's Mortgage or deed of trust, if any, on the Property, shall be
deemed an additional principal Advance under the Loan, payable upon demand, and
shall bear interest at the rate applicable to the Loan.
F. Publicity. Lender may display a sign at the construction site
informing the public that Lender is the construction lender for the Project.
Lender may obtain other publicity in connection with the Project through press
releases and participation in ground-breaking and opening ceremonies and similar
events.
G. Actions. Lender shall have the right to commence, appear in, or
defend any action or proceeding purporting to affect the rights, duties, or
liabilities of the parties to this Agreement, or the disbursement of funds from
the
Loan Fund. In connection with this right, Lender may incur and pay reasonable
costs
and expenses, including, but not limited to, attorneys' fees, for both trial
and
appellate proceedings. Borrower covenants to pay to Lender on demand all
such expenses, together with interest from the date Lender incurs the expense at
the rate specified in the Note, and Lender is authorized to disburse funds from
the Loan Fund for such purposes.
VII
DEFAULT AND REMEDIES
A. Events Of Default. The term "Event of Default" as used herein and in
the Related
Documents shall mean the occurrence or happening, at any time and from
time to time, of any one or more of the following:
1. Payment Of Indebtedness. The failure, refusal or neglect to
pay, in full, (1) all of the Indebtedness on the maturity date thereof; or (2)
any installment or portion of the Indebtedness no later than the date the same
shall become due and payable, whether at the due date thereof stipulated in the
Related Documents or at a date fixed for prepayment or by acceleration or
otherwise.
2. Performance Of Obligations. The failure, refusal or neglect by
Borrower
or any Guarantor to comply with, perform, and discharge fully and timely
each and every other material term, obligation, covenant, or condition contained
in this Agreement or in any of the Related Documents, as and when required.
3. False Representation. Any warranty, representation, or
statement made or furnished by Borrower in, under or pursuant to the Related
Documents or any other documents executed in connection therewith is false or
misleading
in any material respect at the time made or furnished, or becomes false
or misleading at any time thereafter.
4. Judgment. If any final money judgment shall be rendered against
Borrower
or any Guarantor or surety of the Indebtedness and the same shall not be
paid or
execution on the same shall not be stayed by perfection of an appeal or
other appropriate action within the cure period described in paragraph B. below.
5. Voluntary Bankruptcy. If Borrower or any Guarantor or surety
of the Indebtedness shall (1) seek entry of an order for relief as a debtor in
a proceeding under the Bankruptcy Code; (2) seek, consent to or not contest the
appointment of receiver or trustee for itself or himself or for all or any part
of its property; (3) file a petition seeking relief under the bankruptcy,
arrangement, reorganization or other debtor relief laws of the United States or
any state
or any other competent jurisdiction; (4) make a general assignment for
the
benefit of its or his creditors; or (5) admit in writing its or his inability
to pay its or his debts as they mature.
6. Involuntary Bankruptcy. If (1) a petition is filed against
Borrower
or any Guarantor or surety of the Indebtedness seeking relief under the
bankruptcy,
arrangement, reorganization or other debtor relief laws of the United
States or
any state or other competent jurisdiction; or (2) a court of competent
jurisdiction
enters an order, judgment or decree appointing a receiver or trustee
for Borrower, or for all or any part of its property; and (3) such petition,
order,
judgment or decree shall not be discharged or stayed within the cure period
described in paragraph B. below.
7. Foreclosure Of Other Liens. If the holder of any lien or
security interest on the Property (without implying Lender's consent to the
existence, placing, creating or permitting of any lien or security interest)
institutes foreclosure or other proceedings for the enforcement of its remedies
thereunder and any such proceedings shall not be stayed or discharged within the
cure period described in paragraph B. below.
8. Sale, Lease Or Other Transfer. Any sale, lease, exchange,
assignment, conveyance, transfer of possession or other disposition of all or
any portion of
the Property or any interest therein without the consent of the Lender,
or any sale, lease, exchange, assignment, conveyance or other disposition of
substantially all of the personal property collateral, except for sales or other
dispositions of the personal property collateral in the ordinary course of
Borrower's business, without the prior written consent of the Lender.
9. Dissolution Or Failure. The dissolution, business failure,
merger or similar event affecting the Borrower or any surety, endorser or
Guarantor of the Indebtedness, without the prior written consent of Lender.
10. Title And Lien Priority. If title of Borrower to any or all of
the Property or the status of the Deed of Trust as a first and prior lien and
security
interest on the Property shall be endangered by any party whatsoever, and
Borrower shall fail to cure the same upon demand by Lender.
11. Other Defaults. The occurrence of an Event of Default, as
defined or described in any of the other Related Documents, or the occurrence of
a default by Borrower on any other loan or obligation of Borrower, including,
without limitation, loans or obligations secured by all or any portion of the
Property which are subordinate to the Deed of Trust or the other Related
Documents.
12. Levy On Assets. A levy on any of the assets of Borrower or any
Guarantor or surety of the Indebtedness, and such levy is not stayed or abated
within the cure period described in paragraph B. below.
13. Adverse Change In Financial Condition. The occurrence of a
material adverse change in Borrower's financial condition, or if Lender, in
Lender's reasonable judgment, believes the prospect of payment or performance of
the indebtedness by Borrower is impaired.
14. Breach Of Construction Contract. The occurrence of a material
breach of the Construction Contract by either the Borrower or the Contractor.
15. Cessation Of Construction. Prior to the completion of
construction of the Improvements and equipping of the Project, the construction
of the Improvements or the equipping of the Project is abandoned or work thereon
ceases for a period
of more than ten (10) days for any reason, or the Improvements
are not completed for purposes of final payment to the General Contractor prior
to June ___, 1999, regardless of the reason for the delay.
B. Notice And Cure. If any default, other than a default in payment (as
defined below) is curable and if Borrower or Grantor, as the case may be, has
not
been given two (2) or more notices of a similar default within the preceding
twelve (12) months, it may be cured (and no Event of Default will have occurred)
if Borrower or Grantor, as the case may be, after receiving written notice from
Lender
demanding cure of such default: (a) cures the default within thirty (30)
days; or (b) if the cure requires more than thirty (30) days, immediately
initiates steps which Lender deems in Lender's sole discretion to be sufficient
to cure the default and thereafter continues and completes all reasonable and
necessary
steps sufficient to produce compliance as soon as reasonably practical.
For purposes of this Agreement and the other Related Documents, a "default in
payment"
shall mean the failure to pay any installment of interest, principal, or
late charge under the Note, or the failure to pay real estate taxes and
assessments,
and insurance premiums, including any payments to an impound account,
as required under the terms of the Construction Deed of Trust and Security
Agreement with Assignment of Rents which secures payment of the Note.
C. Remedies.
1. Generally. Upon the occurrence of any Event of Default which
is not cured pursuant to paragraph B. above and at any time thereafter, Lender
may, at its option, but without any obligation to do so, and in addition to any
other right Lender may have, do any one or more of the following without notice
to Borrower: (a) Cancel this Agreement; (b) Institute appropriate proceedings
to enforce the performance of this Agreement; (c) Withhold further disbursement
of Loan Funds; (d) Expend funds necessary to remedy the default; (e) Take
possession of the Property and continue construction of the Project; (f)
Accelerate
maturity of the Note and/or Indebtedness and demand payment of all sums
due under the Note and/or Indebtedness; (g) Bring an action on the Note and/or
Indebtedness; (h) Foreclose Lender's Mortgage or Deed of Trust, if any, on the
Property in any manner available under law; and (i) Exercise any other right or
remedy which it has under the Note or Related Documents, or which is otherwise
available at law or in equity or by statute.
2. Right To Complete Construction. If Lender takes possession of
the Property, it may take any and all actions necessary in its judgment to
complete construction of the Improvements, including, but not limited to, making
changes in the Plans and Specifications, work, or materials and entering into,
modifying or terminating any contractual arrangements, subject to Lender's right
at any time to discontinue any work without liability. If Lender elects to
complete
the Improvements, it will not assume any liability to Borrower or to any
other person for completing the Improvements or for the manner or quality of
construction of the Improvements, and Borrower expressly waives any such
liability. Borrower irrevocably appoints Lender as its attorney-in-fact, with
full power of substitution, to complete the Improvements, at Lender's option,
either in
Borrower's name or in its own name. In any event, all sums expended by
Lender in completing the construction of the Improvements will be considered to
have been disbursed to Borrower and will be secured by the collateral for the
Loan. Any such sums that cause the principal amount of the Loan to exceed the
face amount of the Note will be considered to be an additional Loan to Borrower,
bearing
interest at the Note rate and being secured by the collateral. For these
purposes, Borrower assigns to Lender all of its right, title and interest in and
to the Project Documents; however, Lender will not have any obligation under the
Project Documents unless Lender expressly hereafter agrees to assume such
obligations in writing. Lender will have the right to exercise any rights of
Borrower
under the Project Documents upon the occurrence of an Event of Default.
All rights,
powers, and remedies of Lender under this Agreement are cumulative and
alternative, and are in addition to all rights which Lender may have under
applicable law.
D. Advances By Lender. Any funds of Lender used for any purpose referred
to in this article shall constitute advances under the Loan and shall bear
interest at the variable rate specified in the Note.
E. Coordination With Related Documents. The benefits, rights and
remedies of Lender contained herein or provided for in any of the Related
Documents, are cumulative. To the extent of any conflict between any provision
of this Agreement and any provision contained in any and all of the Related
Documents, the provisions of this Agreement shall control, except that any
provision
of any other Related Documents giving the greater security or additional
rights and remedies shall control over this Agreement.
VIII
MISCELLANEOUS
A. Notices. All notices required under the terms of this Agreement or
any security document are sufficient either (i) three (3) days after their
deposit in the United States Mail, postage prepaid, or (ii) two (2) days after
their deposit in a nationally recognized overnight courier service, or (iii) on
the day of their personal delivery, if addressed or delivered to the parties at
the addresses set forth beneath their signature lines or at such other addresses
as specified in writing by any party to the others, provided that no change of
address by any party will be effective unless the party first serves notice of
such change of address on the other parties in writing by certified mail with
return receipt requested, retaining a copy of such return receipt in its files.
Notwithstanding the foregoing, notice regarding any proposed foreclosure sale
shall be given as required by law.
B. Agency. Nothing in this Agreement shall be construed to constitute
the creation of a partnership or joint venture between Lender and Borrower or
any
contractor.
Lender is not an agent or representative of Borrower. This Agreement
does not create a contractual relationship with and shall not be construed to
benefit
or bind Lender in any way with or create any contractual duties by Lender
to any contractor, subcontractor, materialman, laborer, or any other person.
C. Authority To File Notices. Borrower appoints and designates Lender
as
its attorney-in-fact to file for record any notice that Lender deems necessary
to
protect its interest under this Agreement. This power shall be deemed coupled
with
an interest and shall be irrevocable while any sum or performance remains due
and owing under any of the Related Documents.
D. Consent To Loan Participation. Borrower agrees and consents to
Lender's sale or transfer, whether now or later, of one or more participation
interests
in the Loans to one or more purchasers, whether related or unrelated to
Lender. Lender may provide, without any limitation whatsoever, to any one or
more
purchasers,
or potential purchasers, any information or knowledge Lender may have
about Borrower
or about any other matter relating to the Loan, and Borrower hereby
waives any rights to privacy it may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation interests, as
well as all notices of any repurchase of such participation interests. Borrower
also agrees that the purchasers of any such participation interests will be
considered as the
absolute owners of such interests in the Loans and will have all
the rights granted under the participation agreement or agreements governing the
sale of such participation interests. Borrower further waives all rights of
offset
or counterclaim that it may have now or later against Lender or against any
purchaser
of such a participation interest and unconditionally agrees that either
Lender or such purchaser may enforce Borrower's obligation under the Loans
irrespective of the failure or insolvency of any holder of any interest in the
Loans. Borrower further agrees that the purchaser of any such participation
interests
may enforce its interests irrespective of any person claims or defenses
that Borrower may have against Lender.
E. Costs And Expenses. Borrower agrees to pay upon demand all of
Lender's expenses, including without limitation reasonable attorneys' fees,
incurred
in connection with the preparation, execution, enforcement, modification
and
collection of this Agreement or in connection with the Loans made pursuant to
this Agreement. Lender may pay someone else to help collect the Loans and to
enforce
this Agreement, and Borrower will pay that amount. This includes, subject
to any limits under applicable law, Lender's attorneys' fees and Lender's legal
expenses, whether or not there is a lawsuit, including attorneys' fees for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), appeals, and any anticipated post-judgment collection services.
Borrower
also will pay any court costs, in addition to all other sums provided by
law.
F. Modifications. No provision of this Agreement or the other Related
Documents
may be modified, waived or terminated except by an instrument in writing
executed
by the party against whom a modification, waiver or termination is sought
to be enforced.
G. Severability. In case any of the provisions of this Loan Agreement
shall for any reason be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof,
and this Loan Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
H. Election Of Remedies. Lender shall have all of the rights and
remedies granted in the Related Documents and available at law or in equity, and
these
same rights and remedies shall be cumulative and may be pursued separately,
successively or concurrently against Borrower, any Guarantor or any collateral
provided
by the Related Documents at the sole discretion of Lender. The exercise
of, or failure to exercise, any of the same shall not constitute a waiver or
release thereof or of any other right or remedy, and the same shall be
nonexclusive.
I. Form And Substance. All documents, certificates, insurance policies
and other items required under this Agreement to be executed and/or delivered to
Lender shall be in form and substance satisfactory to Lender.
J. No Third Party Beneficiary. This Loan Agreement is for the sole
benefit of Lender, its successors and assigns, and Borrower, its permitted
successors and assigns, and is not for the benefit of any third party.
K. Number And Gender. Whenever used herein, the singular number shall
include
the plural and the singular, and the use of any gender shall be applicable
to
all genders. The duties, covenants, obligations and warranties of Borrower in
this Loan Agreement shall be joint and several obligations of Borrower, and of
each Borrower if more than one.
L. Captions. The captions, headings and arrangements used in this Loan
Agreement are for convenience only and do not in any way affect, limit, amplify
or modify the terms and provisions hereof.
M. Applicable Law. This Loan Agreement and the Related Documents shall
be governed by and construed in accordance with the laws of the State of Nevada
and the laws of the United States applicable to transactions within such state.
N. Survival. All warranties, representations, and covenants made by
Borrower
in this Agreement or in any certificate or other instrument delivered by
Borrower to Lender under this Agreement shall be considered to have been relied
upon by Lender and will survive the making of the Loan and delivery to Lender of
the Related Documents, regardless of any investigation made by Lender or on
Lender's behalf.
O. Time Is Of The Essence. Time is of the essence in the performance of
this Agreement.
P. Waiver. Lender shall not be deemed to have waived any rights under
this Agreement unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall operate as
a waiver of such right or any other right. A waiver by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Lender, nor any course of dealing between
Lender
and Borrower, or between Lender and any Grantor, shall constitute a waiver
of any of Lender's rights or of any obligations of Borrower or of any Grantor as
to any
future transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent in subsequent instances where such consent is
required, and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
Dated this _____ day of January, 1998.
LENDER
First Credit Bank
By______________________________________
Authorized Officer
Hawaiian Gardens Branch
00000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
BORROWER
NevStar Gaming & Entertainment
Corporation
By_________________________________
Xxxxxxx X. Xxxxxxxxxx, Secretary
By_________________________________
Xxxxxxx X. Xxxxxxx, President
0000 Xxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
STATE OF CALIFORNIA )
: ss.
COUNTY OF __________)
This instrument was acknowledged before me on January ___, 1998, by
____________________________ as the Authorized Agent of First Credit Bank.
___________________________________
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF __________)
This instrument was acknowledged before me on January ___, 1998, by Xxxxxxx
X. Xxxxxxxxxx as Secretary of NevStar Gaming & Entertainment Corporation.
___________________________________
Notary Public
STATE OF NEVADA )
: ss.
COUNTY OF __________)
This instrument was acknowledged before me on January ___, 1998, by Xxxxxxx
X. Xxxxxxx as President of NevStar Gaming & Entertainment Corporation.
___________________________________
Notary Public
