Exhibit 4.31
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
INSTRUCTIONS TO RECORDER:
Index this document as (i) a deed of trust; (ii) an assignment of rents; (iii) a
security agreement; and (iv) a fixture filing
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SPACE ABOVE THIS LINE FOR RECORDER'S USE.
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC., BLACK HAWK/XXXXXX
ENTERTAINMENT, LLC, and XXXXXX HOTEL VENTURE, each as a grantor
(Borrower)
to
THE PUBLIC TRUSTEE OF XXXXXX COUNTY, STATE OF COLORADO, as Trustee
and
FOOTHILL CAPITAL CORPORATION, as beneficiary
(Lender)
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FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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Dated: July 12, 2002
Location: 000 Xxxx Xxxxxx,
Xxxxx Xxxx, Xxxxxxxx 00000
County: Xxxxxx
FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (as amended, amended and restated, supplemented, or
otherwise modified from time to time, the "Deed of Trust"), dated as of July 12,
2002, made by BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC., a Colorado
corporation, having an office at 000 Xxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxx 00000
("Black Hawk"), BLACK HAWK/XXXXXX ENTERTAINMENT, LLC, a Colorado limited
liability corporation, having an office at 000 Xxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxx
00000 ("Black Hawk/Xxxxxx") and XXXXXX HOTEL VENTURE, a Colorado joint venture
partnership, having an office at 000 Xxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxx 00000
("Xxxxxx"), each as a grantor, assignor and debtor (Black Hawk, Black
Hawk/Xxxxxx and Xxxxxx, collectively in such capacities and together with any
successors in such capacities, the "Grantors" and each a "Grantor"), in favor of
THE PUBLIC TRUSTEE OF XXXXXX COUNTY, STATE OF COLORADO, having an address at 000
Xxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx Xxxx, Xxxxxxxx 00000, as trustee (together
with any successors in such capacity, the "Trustee") for the benefit of FOOTHILL
CAPITAL CORPORATION, a California corporation, having an office at 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0000 Xxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, in its capacity as
lender pursuant to the Credit Agreement (as hereinafter defined), as
beneficiary, assignee and secured party (in such capacities and together with
any successors or assigns in such capacities, the "Beneficiary").
R E C I T A L S:
X. Xxxxxx Entertainment, Inc., formerly known as Gameco, Inc.
("Entertainment"), the Grantors, Xxxxxx Ventures, Inc., a Colorado corporation
("GVI") (Entertainment, Grantors and GVI being referred to collectively herein
as "Borrower"), and the Beneficiary have, in connection with the execution and
delivery of this Deed of Trust, entered into that certain Loan and Security
Agreement, dated concurrently herewith (as amended, amended and restated,
supplemented, or otherwise modified from time to time, the "Credit Agreement"),
providing for a revolving loan to Borrower in the maximum aggregate principal
amount of TEN MILLION AND 00/100 DOLLARS $10,000,000, which loan is further
evidenced by one or more promissory notes executed by Borrower and dated
concurrently herewith (each a "Note", and collectively, the "Notes").
B. Entertainment owns, directly or through its Subsidiaries (as defined
below), all of the issued and outstanding shares, partnership interests or
membership interests, as applicable, of each Grantor.
C. Each Grantor will receive substantial benefits from the execution and
delivery of, and the performance of the obligations under, the Credit Agreement
and is therefore willing to enter into this Deed of Trust.
D. Black Hawk and Black Hawk/Xxxxxx are the legal owners of the Mortgaged
Property (as hereinafter defined) pledged by it hereunder.
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X. Xxxxxx is the legal owner and holder of the tenant's interest under
those certain leases described in Schedule B annexed hereto (as such leases may
be amended from time to time in accordance with the provisions of this Deed of
Trust, the "Mortgaged Leases"; each, a "Mortgaged Lease"), which affect the
Leased Land (as hereinafter defined). A memorandum of lease relating to each
Mortgaged Lease was recorded in the real property records of Xxxxxx County, as
set forth in Schedule B annexed hereto.
F. This Deed of Trust is given by each Grantor to the Trustee for the
benefit of Beneficiary to secure the payment and performance of all of the
Secured Obligations (as hereinafter defined).
A G R E E M E N T:
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Grantor hereby covenants and agrees for the benefit of the
Beneficiary as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The following terms used in this Deed of Trust shall have the following
meanings:
"ACM" shall have the meaning assigned to such term in Section 4.7(ii)
hereof.
"Acquiring Party" shall have the meaning assigned to such term in Section
14.25(ii) hereof.
"Affiliate" shall have the meaning assigned to such term in the Credit
Agreement.
"Alteration" shall mean any and all alterations, installations,
improvements, additions, modifications or changes of a structural nature of or
to the Owned Premises or the Leased Premises.
"Beneficiary" shall have the meanings assigned to such term in the
Preamble hereof.
"Borrower" shall have the meaning assigned to such term in Recital A
hereof.
"Business Day" shall have the meaning assigned to such term in the Credit
Agreement.
"Charges" shall mean any and all real estate, property and other taxes,
assessments and special assessments, levies, fees, all water and sewer rents and
charges and all other governmental charges or Liens imposed upon or assessed
against, and all claims (including, without limitation, landlords', carriers',
mechanics', workmen's, repairmen's,
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laborers', materialmen's, suppliers' and warehousemen's Liens and other claims
arising by operation of law) against, all or any portion of the Mortgaged
Property.
"Contested Liens" shall mean, collectively, any Liens incurred in respect
of any Charges to the extent that the amounts owing in respect thereof are not
yet delinquent or are being contested and otherwise comply with the provisions
of Section 9.1 hereof.
"Contracts" shall mean, collectively, any and all right, title and
interest of each Grantor in and to any and all contracts and other general
intangibles relating to the Mortgaged Property (including, without limitation,
all reciprocal easements and/or operating agreements, covenants, conditions and
restrictions and similar agreements affecting all or any portion of the
Mortgaged Property) and all reserves, deferred payments, deposits, refunds and
claims of every kind, nature or character relating thereto.
"Credit Agreement" shall have the meaning assigned to such term in
Recital A hereof.
"Collateral" shall have the meaning assigned to such term in the Credit
Agreement.
"Deed of Trust" shall have the meaning assigned to such term in the
Preamble hereof.
"Default Rate" shall mean the rate per annum equal to the highest rate
then payable under the Credit Agreement.
"Destruction" shall mean any and all damage to, or loss or destruction
of, the Owned Premises or Leased Premises or any part thereof.
"Environmental Law" shall mean any applicable federal, state, local or
municipal statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment binding on each
Grantor, relating to pollution or protection of the environment, or health or
safety including, without limitation, any relating to the release or threatened
release of any Hazardous Materials or materials requiring special handling under
such laws, including but not limited to the Colorado Underground Storage Tank
Act, CRS 00-00-000 et seq., the Colorado Hazardous Substances Act, CRS 25-5-501,
et seq., the State Hazardous Site Act, CRS 00-00-000, et seq., the Colorado
Water Quality Control Act, CRS 25-8-101 et seq., and the Colorado Air Quality
Control Act, CRS 25-7-101, as amended from time to time.
"Equipment" shall mean all "equipment", as such term is defined in the
UCC, now owned or hereafter acquired by any Grantor, wherever located and, in
any event, including all such Grantor's machinery and equipment, including
processing equipment, conveyors, machine tools, data processing and computer
equipment, including embedded software and peripheral equipment and all
engineering, processing and manufacturing equipment, gaming machines and
devices, office machinery, furniture, materials handling equipment, tools,
attachments, accessories, automotive equipment, trailers, trucks, forklifts,
molds, dies, stamps, motor vehicles, rolling stock and other equipment of every
kind and nature, trade fixtures and
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fixtures not forming a part of real property, together with all additions and
accessions thereto, replacements therefor, all parts therefor, all substitutes
for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.
"Event of Default" shall have the meaning assigned to such term in the
Credit Agreement.
"Fixture" shall mean (1) all machinery, apparatus, equipment, fittings,
fixtures, improvements and articles of personal property of every kind,
description and nature whatsoever now or hereafter attached or affixed to the
Owned Land or any other Improvement or used in connection with the use and
enjoyment of the Owned Land or any other Improvement or the maintenance or
preservation thereof, which by the nature of their location thereon or
attachment thereto are fixtures under the UCC or any other applicable law
including, without limitation, all utility systems, fire sprinkler and security
systems, drainage facilities, lighting facilities, all water, sanitary and storm
sewer, drainage, electricity, steam, gas, telephone and other utility equipment
and facilities, pipes, fittings and other items of every kind and description
now or hereafter attached to or located on the Owned Land which by the nature of
their location thereon or attachment thereto are real property under applicable
law, HVAC equipment, boilers, electronic data processing, telecommunications or
computer equipment, refrigeration, electronic monitoring, water or lighting
systems, power, sanitation, waste removal, elevators, maintenance or other
systems or equipment and all additions thereto and betterments, renewals,
substitutions and replacements thereof and (2) all of Grantors' estate, right,
title and interest in, to and under all machinery, apparatus, equipment,
fittings, fixtures, improvements and articles of personal property of every
kind, description and nature whatsoever now or hereafter attached or affixed to
the Leased Land or any other Improvement or used in connection with the use and
enjoyment of the Leased Land or any other Improvement or the maintenance or
preservation thereof, which by the nature of their location thereon or
attachment thereto are fixtures under the UCC or any other applicable law
including, without limitation, all utility systems, fire sprinkler and security
systems, drainage facilities, lighting facilities, all water, sanitary and storm
sewer, drainage, electricity, steam, gas, telephone and other utility equipment
and facilities, pipes, fittings and other items of every kind and description
now or hereafter attached to or located on the Leased Land which by the nature
of their location thereon or attachment thereto are real property under
applicable law, HVAC equipment, boilers, electronic data processing,
telecommunications or computer equipment, refrigeration, electronic monitoring,
water or lighting systems, power, sanitation, waste removal, elevators,
maintenance or other systems or equipment and all additions thereto and
betterments, renewals, substitutions and replacements thereof to the extent of
Grantors' estate, right, title and interest therein.
"GAAP" shall have the meaning assigned to such term in the Credit
Agreement.
"Governmental Authority" shall mean any federal, state, local, foreign or
other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
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or any officer or official thereof, having jurisdiction over the Grantors or the
Mortgaged Property or any portion thereof.
"Grantor's Interest" shall have the meaning assigned to such
term in Section 2.2 hereof.
"Grantors" shall have the meaning assigned to such term in the
Preamble hereof.
"Hazardous Materials" shall mean any substance, chemical,
material, pollutant, waste, contaminant or constituent, which is subject to
regulation under or could give rise to liability under any Environmental Law.
"Improvements" shall mean (1) all buildings, structures and
other improvements of every kind or description and any and all Alterations now
or hereafter located, attached or erected on the Owned Land including, without
limitation (i) all Fixtures of the type described in clause (1) of the
definition thereof, (ii) all attachments, railroad tracks, foundations,
sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways,
sewer rights, parking areas, driveways, fences and walls and (iii) all materials
now or hereafter located on the Owned Land intended for the construction,
reconstruction, repair, replacement, alteration, addition or improvement of or
to such buildings, Fixtures of the type described in clause (1) of the
definition thereof, structures and improvements, all of which materials shall be
deemed to be part of the Improvements immediately upon delivery thereof on the
Owned Land and to be part of the improvements immediately upon their
incorporation therein; and (2) all of the Xxxxxx'x estate, right, title and
interest in, to and under all buildings, structures and other improvements of
every kind or description and any and all Alterations now or hereafter located,
attached or erected on the Leased Land including, without limitation (i) all
Fixtures of the type described in clause (2) of the definition thereof, (ii) all
attachments, railroad tracks, foundations, sidewalks, drives, roads, curbs,
streets, ways, alleys, passages, passageways, sewer rights, parking areas,
driveways, fences and walls and (iii) all materials now or hereafter located on
the Leased Land intended for the construction, reconstruction, repair,
replacement, alteration, addition or improvement of or to such buildings,
Fixtures of the type described in clause (2) of the definition thereof,
structures and improvements, all of which materials shall be deemed to be part
of the Improvements immediately upon delivery thereof on the Leased Land and to
be part of the improvements immediately upon their incorporation therein to the
extent of Xxxxxx'x estate, right, title and interest therein.
"Indemnified Liabilities" shall have the meaning assigned to
such term in Section 14.6(i) hereof.
"Indemnitees" shall have the meaning assigned to such term in
Section 14.6(i) hereof.
"Insurance Policies" means the insurance policies and
coverages required to be maintained by each Grantor with respect to the
Mortgaged Property pursuant to Section 6.5 of the Credit Agreement and all
renewals and extensions thereof.
"Insurance Requirements" means, collectively, all provisions
of the Insurance Policies, all requirements of the issuer of any of the
Insurance Policies and all orders, rules,
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regulations and any other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) binding upon any
Grantor and applicable to the Mortgaged Property or any use or condition
thereof.
"Intercreditor Agreement" shall mean that certain
Intercreditor Agreement dated concurrently herewith executed by and between
Beneficiary and Xxxxx Fargo Bank Minnesota, National Association, in its
capacity as trustee under that certain Indenture dated as of February 8, 2002.
"Landlord" shall mean any landlord, sublandlord, lessor,
sublessor, franchisor, licensor or grantor, as applicable.
"Leased Land" shall mean, in the case of Xxxxxx, the land
described in Schedule A annexed hereto as Parcels 1, 2, 3, 4 and 5 and any and
all easements, rights-of-way, strips and gores of land, waters, water courses,
water rights, mineral, gas and oil rights and all power, air, light and other
rights, estates, titles, interests, privileges, liberties, servitudes, licenses,
tenements, hereditaments and appurtenances whatsoever, in any way demised under
the Mortgaged Leases or belonging, relating or appertaining thereto, or any part
thereof, or which hereafter shall in any way be demised under the Mortgaged
Leases or belong, relate or be appurtenant thereto.
"Leased Premises" shall mean, collectively, (1) the lessee's
interest and estate in the Mortgaged Leases and all recorded or unrecorded
extensions, amendments, supplements and restatements thereof, and (2) all right,
title and interest of the lessee under the Mortgaged Leases in and to (i) the
Leased Land and (ii) Improvements of the type described in clause (2) of the
definition thereof.
"Leases" shall mean, collectively, any and all interests of
each Grantor, as Landlord, in all leases and subleases of space, tenancies,
franchise agreements, licenses, occupancy, rental, access or concession
agreements and any other agreements pursuant to which any Person is granted a
possessory interest in or right to use or occupy all or any portion of the
Mortgaged Property, in each case whether now existing or hereafter entered into,
whether or not of record, relating in any manner to the Owned Premises or Leased
Premises or the use or occupancy thereof and any and all amendments,
modifications, supplements, replacements, extensions, renewals and/or
guarantees, if any thereof, whether now in effect or hereafter coming into
effect.
"Lender's Account" shall have the meaning assigned to such
term in the Credit Agreement.
"Lessor" shall mean each of Black Hawk and Black Hawk/Xxxxxx,
in its capacity as lessor under the applicable Mortgaged Lease.
"Lien" shall have the meaning assigned to such term in the
Credit Agreement.
"Loan Documents" shall have the meaning assigned to such term
in the Credit Agreement.
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"Mortgaged Leases" shall have the meaning assigned to such
erm in Recital E hereof
"Mortgaged Property" shall have the meaning assigned to such
term in Section 2.1 hereof
"Net Loss Proceeds" shall have the meaning assigned to such
term in the Credit Agreement.
"Officers' Certificate" shall have the meaning assigned to
such term in the Credit Agreement.
"Owned Land" shall mean (i) in the case of Black Hawk, the
land described in Schedule A annexed hereto as Parcels 1, 2, 3, 4 and 5 and (ii)
in the case of Black Hawk/Xxxxxx, the land described in Schedule A annexed
hereto as Parcel 6, in each case together with Black Hawk's or Black
Hawk/Xxxxxx'x, as the case may be, reversionary rights therein and each of the
Grantors' rights in and to any and all easements, rights-of-way, strips and
gores of land, waters, water courses, water rights, mineral, gas and oil rights
and all power, air, light and other rights, estates, titles, interests,
privileges, liberties, servitudes, licenses, covenants, conditions,
restrictions, tenements, hereditaments and appurtenances whatsoever, in any way
belonging, relating or appertaining thereto, or any part thereof, or which
hereafter shall in any way belong, relate or be appurtenant thereto.
"Owned Premises" shall mean, collectively, (i) the Owned Land
and (ii) Improvements of the type described in clause (1) of the definition
thereof.
"Permit" shall mean any and all permits, certificates,
approvals, authorizations, consents, licenses, variances, franchises or other
instruments, however characterized, of any Governmental Authority (or any Person
acting on behalf of a Governmental Authority) now or hereafter acquired or held,
together with all amendments, modifications, extensions, renewals and
replacements of any thereof issued or in any way furnished in connection with
the Mortgaged Property including, without limitation, building permits,
certificates of occupancy, environmental certificates, industrial permits or
licenses and certificates of operation.
"Permitted Collateral Liens" shall have the meaning assigned
to such term in Section 4.6 hereof.
"Permitted Liens" shall have the meaning assigned to such term
in the Credit Agreement.
"Person" shall have the meaning assigned to such term in the
Credit Agreement.
"Prior Liens" shall mean, collectively, the Liens identified
in Schedule C annexed to this Deed of Trust.
"Proceeds" shall mean collectively, any and all cash proceeds
and noncash proceeds and shall include, without limitation, all (i) proceeds of
the conversion, voluntary or involuntary, of any of the Mortgaged Property or
any portion thereof into cash or liquidated
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claims, (ii) proceeds of any insurance (except payments made to a Person, other
than Entertainment or any Subsidiary thereof, that is not a party to this Deed
of Trust), indemnity, warranty, guaranty or claim payable to the Beneficiary or
to any Grantor from time to time with respect to any of the Mortgaged Property
including, without limitation, all Net Loss Proceeds relating thereto, (iii)
payments (in any form whatsoever) made or due and payable to any Grantor from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any portion of the Mortgaged Property by any
Governmental Authority (or any Person acting on behalf of a Governmental
Authority) including, without limitation, all Net Loss Proceeds relating
thereto, (iv) products of the Mortgaged Property and (v) other amounts from time
to time paid or payable under or in connection with any of the Mortgaged
Property.
"Property Material Adverse Effect" shall mean, as of any date
of determination and whether individually or in the aggregate (i) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
business or operations as presently conducted at the Mortgaged Property; (ii)
any event, circumstance, occurrence or condition which has caused or resulted in
(or would reasonably be expected to cause or result in) a material adverse
effect on the value or utility of the Mortgaged Property; and (iii) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
legality, priority or enforceability of the Lien created by this Deed of Trust
or the rights and remedies of the Beneficiary or Trustee hereunder.
"Prudent Operator" shall mean the standard of care taken by a
prudent operator of property similar in use and configuration to the Owned
Premises or Leased Premises, as the case may be, and located in the locality
where the Owned Premises or Leased Premises, as the case may be, are located.
"Records" shall mean, collectively, any and all right, title
and interest of each Grantor in and to any and all drawings, plans,
specifications, file materials, operating and maintenance records, catalogues,
tenant lists, correspondence, advertising materials, operating manuals,
warranties, guarantees, appraisals, studies and data relating to the Mortgaged
Property or the construction of any Alteration or the maintenance of any Permit.
"Rents" shall mean, collectively, any and all rents,
additional rents, royalties, issues, cash, guaranties, letters of credit, bonds,
sureties or securities deposited under any Lease to secure performance of the
Tenant's obligations thereunder, revenues, earnings, profits and income, advance
rental payments, payments incident to assignment, sublease or surrender of a
Lease, claims for forfeited deposits and claims for damages, now due or
hereafter to become due, with respect to any Lease, any indemnification against,
or reimbursement for, sums paid and costs and expenses incurred by each Grantor
under any Lease or otherwise, and any award in the event of the bankruptcy of
any Tenant under or guarantor of a Lease.
"Requirements of Law" shall mean, collectively, any and all
requirements of any Governmental Authority including, without limitation, any
and all orders, decrees, determinations, laws, treaties, ordinances, rules,
regulations or similar statutes or case law.
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"Secured Obligations" shall mean all obligations (whether or
not constituting future advances, obligatory or otherwise) of Entertainment,
Grantors or any Subsidiaries from time to time arising under or in respect of
this Deed of Trust, the Credit Agreement and the other Loan Documents including,
without limitation, the obligations to pay principal, interest and all other
charges, fees, expenses, costs, commissions, reimbursements (with respect to
outstanding Letters of Credit or otherwise), premiums, indemnities and other
payments related to or in respect of the obligations contained in this Deed of
Trust, the Credit Agreement and the other Loan Documents, in each case whether
(i) such obligations are direct or indirect, secured or unsecured, joint or
several, absolute or contingent, due or to become due whether at stated
maturity, by acceleration or otherwise, (ii) arising in the regular course of
business or otherwise, (iii) for payment or performance and/or (iv) now existing
or hereafter arising (including, without limitation, interest and other
obligations arising or accruing after the commencement of any bankruptcy,
insolvency, reorganization or similar proceeding with respect to Entertainment,
Grantors, any Subsidiaries or any other Person, or which would have arisen or
accrued but for the commencement of such proceeding, even if such obligation or
the claim therefor is not enforceable or allowable in such proceeding).
"Subordination Agreement" shall mean a subordination,
non-disturbance and attornment agreement substantially in the form of Exhibit I
annexed to this Deed of Trust.
"Subsidiaries" shall have the meaning assigned to such term in
the Credit Agreement.
"Taking" shall mean any taking of the Mortgaged Property or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of the Mortgaged Property or any part
thereof, by any Governmental Authority, civil or military.
"Tax Escrow Fund" shall have the meaning assigned to such term
in Section 7.2 hereof.
"Tenant" shall mean any tenant, subtenant, lessee, sublessee,
franchisee, licensee, grantee or obligee, as applicable.
"UCC" means, generally, the Uniform Commercial Code as the
same may, from time to time, be enacted and in effect in the State of New York;
provided, however, (a) subject to subsection (b) below, for purposes of
attachment, perfection and priority, the Lender's security interest in any
Collateral shall be governed by the Uniform Commercial Code as enacted and in
effect in the State of Colorado and (b) in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of Lender's security interest in any Collateral is governed by the
Uniform Commercial Code as enacted and in effect in any other jurisdiction, the
term "UCC" shall mean the Uniform Commercial Code as enacted and in effect in
such other jurisdiction solely for the purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of
definitions relating to such provisions.
SECTION 1.2 Interpretation. In this Deed of Trust, unless otherwise
specified, (i) singular words include the plural and plural words include the
singular, (ii) words importing
any gender include the other gender, (iii) references to any Person include such
Person's successors and assigns and in the case of an individual, the word
"successors" includes such Person's heirs, devisees, legatees, executors,
administrators and personal representatives, (iv) references to any statute or
other law include all applicable rules, regulations and orders adopted or made
thereunder and all statutes or other laws amending, consolidating or replacing
the statute or law referred to, (v) the words "consent", "approve" and "agree",
and derivations thereof or words of similar import, mean the prior written
consent, approval or agreement of the Person in question not to be unreasonably
withheld, (vi) the words "include" and "including", and words of similar import,
shall be deemed to be followed by the words "without limitation", (vii) the
words "hereto", "herein", "hereof" and "hereunder", and words of similar import,
refer to this Deed of Trust in its entirety, (viii) references to Articles,
Sections, Schedules, Exhibits, subsections, paragraphs and clauses are to the
Articles, Sections, Schedules, Exhibits, subsections, paragraphs and clauses
hereof, (ix) the Schedules and Exhibits to this Deed of Trust, in each case as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with the provisions hereof, are incorporated herein by
reference, (x) the titles and headings of Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses are inserted as a matter of
convenience only and shall not affect the constructions of any provisions hereof
and (xi) all obligations of each Grantor hereunder shall be satisfied by such
Grantor at its sole cost and expense.
SECTION 1.3 Resolution of Drafting Ambiguities. Each Grantor acknowledges
and agrees that it was represented by counsel in connection with the execution
and delivery hereof, that it and its counsel reviewed and participated in the
preparation and negotiation hereof and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party (i.e.,
Beneficiary) shall not be employed in the interpretation hereof.
ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Mortgaged Property. Each Grantor to the extent of its
interest, if any, hereby PLEDGES, GIVES, GRANTS, BARGAINS, SELLS, TRANSFERS,
ASSIGNS and CONVEYS to the Trustee, TO HAVE AND TO HOLD, IN TRUST, WITH POWERS
OF SALE, for the use and benefit of the Beneficiary, and hereby grants to the
Beneficiary, a security interest in and Lien upon all of such Grantor's estate,
right, title and interest in, to and under the following property, whether now
owned or held or hereafter acquired from time to time (collectively, the
"Mortgaged Property"):
(i) Owned Premises;
(ii) Leased Premises;
(iii) Leases;
(iv) Rents and other income, issues and profits derived from items
i-iii, inclusive, above;
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(v) Equipment; and
(vi) Proceeds.
TO HAVE AND TO HOLD the Mortgaged Property, together with the rights, privileges
and appurtenances thereto belonging unto (i) the Trustee, his substitutes or
successors, forever, to the extent the same constitutes real property or an
interest therein and (ii) the Beneficiary, to the extent the same does not
constitute real property or an interest therein, in either case for the benefit
of the Beneficiary and the Beneficiary's successors and assigns forever, for the
purpose of securing payment and performance by each Grantor of the Secured
Obligations, and each Grantor hereby binds itself and its successors and assigns
to warrant and forever defend the Mortgaged Property unto each of the Trustee
and Beneficiary, their substitutes, successors and assigns, as the case may be,
against the claim or claims of all persons claiming or to claim the same or any
part thereof.
The grant hereunder is in trust such that upon Borrower's breach of
any covenant or agreement of Borrower in this Deed of Trust, including the
covenants to pay when due any sums secured by this Deed of Trust, the
Beneficiary, at the Beneficiary's option, may declare all of the sums secured by
this Deed of Trust to be immediately due and payable without further demand and
may invoke its power of sale by filing of a notice of election and demand as
provided by law, as well as pursuing any other remedies permitted by law. The
Beneficiary will be entitled to collect all reasonable costs and expenses
actually incurred in pursuing the remedies provided herein, including, but not
limited to, reasonable attorneys' fees actually incurred in the preparation,
prosecution and appeal thereof and costs of documentary evidence and title
evidence in connection therewith.
SECTION 2.2 Assignment of Leases and Rents. During the term hereof, each
Grantor absolutely, presently, unconditionally and irrevocably pledges, grants,
sells, conveys, delivers, hypothecates, assigns, transfers and sets over to the
Beneficiary, and grants to the Beneficiary, subject to the terms of Article VI
hereof, all of such Grantor's estate, right, title, interest, claim and demand,
as Landlord, under any and all of the Leases including, without limitation, the
following (such assigned rights, the "Grantor's Interest"):
(i) the immediate and continuing right to receive and collect Rents
payable by the Tenants pursuant to the Leases;
(ii) all claims, rights, powers, privileges and remedies of such
Grantor, whether provided for in the Leases or arising by statute or at law or
in equity or otherwise, consequent on any failure on the part of the Tenants to
perform or comply with any term of the Leases including damages or other amounts
payable to such Grantor as a result of such failure;
(iii) all rights to take all actions upon the happening of a default
under the Leases as shall be permitted by the Leases or by law including,
without limitation, the commencement, conduct and consummation of proceeding at
law or in equity; and
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(iv) the full power and authority, in the name of such Grantor or
otherwise, to enforce, collect, receive and receipt for any and all of the
foregoing and to take all other actions whatsoever which such Grantor, as
Landlord, is or may be entitled to take under the Leases.
SECTION 2.3 Secured Obligations. This Deed of Trust secures, and the
Mortgaged Property is collateral security for, the payment and performance in
full when due of the Secured Obligations.
SECTION 2.4 Future Advances. This Deed of Trust shall secure future
advances. The maximum aggregate amount of all advances of principal under the
Credit Agreement (which advances are obligatory to the extent the conditions set
forth in the Credit Agreement relating thereto are satisfied) that may be
outstanding hereunder at any time is $10,000,000 plus interest thereon, fees,
collection costs, sums advanced for the payment of taxes, assessments,
maintenance and repair charges, insurance premiums and any other reasonable
costs incurred to protect the security encumbered hereby or the Lien hereof,
reasonable expenses incurred by the Beneficiary by reason of any default by any
Grantor under the terms hereof, together with all other sums secured hereby. The
Credit Agreement contains a revolving credit facility that permits Borrower to
borrow certain principal amounts, repay all or a portion of such principal
amounts, and reborrow the amounts previously paid to Beneficiary, all upon
satisfaction of certain conditions stated in the Credit Agreement. This Deed of
Trust secures all advances and re-advances under the revolving credit feature of
the Credit Agreement.
SECTION 2.5 No Release. Nothing set forth in this Deed of Trust shall
relieve any Grantor from the performance of any term, covenant, condition or
agreement on such Grantor's part to be performed or observed under or in respect
of any of the Mortgaged Property or from any liability to any Person under or in
respect of any of the Mortgaged Property or shall impose any obligation on the
Beneficiary to perform or observe any such term, covenant, condition or
agreement on such Grantor's part to be so performed or observed or shall impose
any liability on the Beneficiary for any act or omission on the part of such
Grantor relating thereto or for any breach of any representation or warranty on
the part of such Grantor contained in this Deed of Trust, the Credit Agreement,
or the other Loan Documents, or under or in respect of the Mortgaged Property or
made in connection herewith or therewith. The obligations of each Grantor
contained in this Section 2.5 shall survive the termination hereof and the
discharge of each Grantor's other obligations under this Deed of Trust, the
Credit Agreement and the other Loan Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GRANTORS
SECTION 3.1 Authority and Validity.
Each Grantor represents and warrants that as of the date hereof:
(i) it is duly organized or formed, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization;
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(ii) it is duly qualified to transact business and is in good
standing in the state in which the Mortgaged Property is located;
(iii) it has full corporate or other organizational power and lawful
authority to execute and deliver this Deed of Trust and to mortgage and xxxxx x
Xxxx on and security interest in the Mortgaged Property and otherwise assign
such Grantor's Interest and otherwise perform its obligations as contemplated
herein, and all corporate and governmental actions, consents, authorizations and
approvals necessary or required therefor have been duly and effectively taken or
obtained; and
(iv) this Deed of Trust is a legal, valid and binding obligation of
such Grantor, enforceable against such Grantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
SECTION 3.2 Warranty of Title. Each Grantor represents and warrants (with
respect to its respective interest only) that:
(i) in the case of each of Black Hawk and Black Hawk/Xxxxxx, it has
good fee simple title to the Owned Premises and the Landlord's interest and
estate under or in respect of the Leases relating thereto and good title to the
interest it purports to own or hold in and to each of the Permits, the Contracts
and the Records, in each case subject to no Liens, except for Permitted
Collateral Liens;
(ii) in the case of Xxxxxx, it owns the tenant's interest in the
Mortgaged Lease and has a valid leasehold interest in the Leased Premises and
the Landlord's interest and estate under or in respect of the Leases relating
thereto and good title to the interest it purports to own or hold in and to each
of the Permits, the Contracts and the Records, in each case subject to no Liens,
except for Permitted Collateral Liens;
(iii) the Mortgaged Lease (a) is a valid and subsisting lease,
superior and paramount to all other leases respecting the Leased Premises, (b)
is in full force and effect and no default (nor any event which, with notice or
lapse of time or both, would constitute such a default) has occurred or is
continuing under the Mortgaged Lease and (c) is not subject to any defenses,
offsets or counterclaims and there have been no renewals or extensions of or
supplements, modifications or amendments to the Mortgaged Lease not previously
disclosed to the Beneficiary or the Trustee;
(iv) Xxxxxx is in actual possession of the Leased Premises and
enjoys peaceful, undisturbed possession thereof;
(v) it has good title to the interest it purports to own or hold in
and to all rights and appurtenances to or that constitute a portion of the
Mortgaged Property, except for Permitted Collateral Liens;
(vi) it is in compliance with each term, condition and provision of
any obligation of such Grantor which is secured by the Mortgaged Property or the
noncompliance with which would result in a Property Material Adverse Effect; and
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(vii) this Deed of Trust creates and constitutes a valid and
enforceable first priority Lien on the Mortgaged Property subject to Permitted
Collateral Liens, and, to the extent any of the Mortgaged Property shall consist
of Fixtures, a first priority security interest in the Fixtures, which first
priority Lien and first priority security interest are subject only to Permitted
Collateral Liens.
SECTION 3.3 Condition of Mortgaged Property. Each Grantor represents and
warrants (with respect to its respective interest only) that:
(i) there has been issued and there remains in full force and
effect subject to no revocation, suspension, forfeiture or modification, each
and every Permit necessary for the present use, operation and occupancy of the
Owned Premises or Leased Premises, as the case may be, by such Grantor and its
Tenants and the conduct of their respective businesses and all required zoning,
building code, land use, environmental and other similar Permits;
(ii) the Owned Premises and Leased Premises and the present and
contemplated use and occupancy thereof comply with all applicable zoning
ordinances, building codes, land use laws, setback or other development and/or
use requirements of Governmental Authorities;
(iii) the Owned Premises and Leased Premises are served by all
utilities (including, without limitation, water and sewer systems) necessary for
the present use thereof, and all utility services are provided by public or
private utilities and the Owned Premises and Leased Premises have accepted or
are equipped to accept such utility services and such Grantor has not received
notice of termination of such utility service, except where the failure to be so
served would not result in a Property Material Adverse Effect;
(iv) such Grantor has access to the Owned Premises or Leased
Premises, as the case may be, from roads sufficient to allow such Grantor and
its Tenants and invitees to conduct their respective businesses at the Owned
Premises and Leased Premises, as the case may be, in accordance with sound
commercial practices and such Grantor has not received notice of termination of
such access;
(v) such Grantor has not received notice of any Taking or the
commencement or pendency of any action or proceeding therefor;
(vi) there has not occurred any Destruction of the Owned Premises or
Leased Premises or any portion thereof as a result of any fire or other casualty
that, as of the date hereof, has not been repaired in all material respects;
(vii) there are no disputes regarding boundary lines, location,
encroachments or possession of any portions of the Mortgaged Property and to
Grantors' knowledge no state of facts exists which could give rise to any such
claim;
(viii) all liquid and solid waste disposal, septic and sewer systems
located on the Owned Premises or Leased Premises are in a good and safe
condition and repair, except where such failure would not result in a Property
Material Adverse Effect, and in compliance with all Requirements of Law;
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(ix) no portion of the Owned Premises or Leased Premises is located
in an area identified by the Federal Emergency Management Agency or any
successor thereto as an area having special flood hazards pursuant to the Flood
Insurance Acts or, if any portion of the Leased Premises is located within such
area, the Grantors have obtained the insurance prescribed in Article VIII
hereof;
(x) the Owned Premises are assessed for real estate tax purposes as
one or more wholly independent tax lot or lots, separate from any adjoining land
or improvements not constituting a portion of such lot or lots, and no other
land or improvements are assessed and taxed together with the Owned Premises or
any portion thereof; and
(xi) there are no options or rights of first refusal to purchase or
acquire all or any portion of the Mortgaged Property.
SECTION 3.4 Leases. Each Grantor represents and warrants (to the extent of
its respective interest only) that as of the date hereof:
(i) the Leases identified in Schedule D attached hereto are the
only Leases in existence on the date hereof relating to the Leased Premises;
(ii) true copies of such Leases have been previously delivered to
the Beneficiary and there are no agreements with any Tenant under such Leases
other than those agreements expressly set forth therein;
(iii) such Grantor is the sole owner of all of such Grantor's
Interest in such Leases;
(iv) each of such Leases is in full force and effect, constitutes a
legal, valid and binding obligation of such Grantor and the applicable Tenant
thereunder, and is enforceable against such Grantor and such Tenant in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability;
(v) there is no default under any of such Leases and there is
existing no condition which with the giving of notice or passage of time or both
would cause a default thereunder;
(vi) all Rents due under such Leases have been paid in full;
(vii) none of the Rents reserved under such Leases have been assigned
or otherwise pledged or hypothecated except in favor of the Beneficiary pursuant
to the provisions hereof or as specifically authorized under the Credit
Agreement;
(viii) none of the Rents (other than any security deposit collected in
accordance with the provisions of the applicable Lease) have been collected for
more than one (1) month in advance;
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(ix) there exists no offsets or defenses to the payment of any
portion of the Rents and such Grantor owes no monetary obligation to any Tenant
under any such Lease;
(x) such Grantor has received no notice from any Tenant challenging
the validity or enforceability of any such Lease;
(xi) no such Lease contains any option to purchase, right of first
refusal to purchase, right of first refusal to relet, or any other similar
provision; and
(xii) each such Lease is subordinate to this Deed of Trust either
pursuant to its terms or pursuant to a recordable Subordination Agreement.
SECTION 3.5 Insurance. Each Grantor represents and warrants (with respect
to its respective interest only) that (i) the Owned Premises and Leased Premises
and the use, occupancy and operation thereof comply with all Insurance
Requirements and there exists no default under any Insurance Requirement, (ii)
all premiums due and payable with respect to the Insurance Policies have been
paid, (iii) all Insurance Policies are in full force and effect and such Grantor
has not received notice of violation or cancellation thereof and (iv) all
insurance certificates required pursuant to the Credit Agreement have been
delivered to the Beneficiary.
SECTION 3.6 Charges. Each Grantor represents and warrants (with respect to
its respective interest only) that all Charges imposed upon or assessed against
such Grantor's interest in the Mortgaged Property (and in the case of Xxxxxx, to
the extent such Charges are payable by Xxxxxx in accordance with the terms of
the Mortgaged Lease) have been paid and discharged by such Grantor except to the
extent such Charges constitute a Lien not yet due and payable or to the extent
such Charges are being contested in accordance with Section 9.1 hereof.
SECTION 3.7 Environmental. Each Grantor represents and warrants (with
respect to its respective interest only) that:
(i) it has obtained all Permits which are necessary with respect to
the ownership and operation of its business and the Mortgaged Property under any
and all applicable Environmental Laws and is in compliance with all terms and
conditions thereof;
(ii) it is in compliance with any and all applicable Environmental
Laws including, without limitation, all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in the Environmental Laws and none of Grantors have
received a summons, citation, notice, or directive from the Environmental
Protection Agency or any other federal or state governmental agency concerning
any action or omission by any Grantor resulting in violation of any
Environmental Laws;
(iii) there is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice of violation, investigation, proceeding, notice
of demand letter pending or threatened against it or any Affiliate under the
Environmental Laws which would result in a fine, penalty or other cost or
expense;
(iv) there are no past or present events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with or
prevent compliance with the
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Environmental Laws, or which may give rise to any common law or legal liability
including, without limitation, liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, or any other
Environmental Law or related common law theory or otherwise form the basis of
any claim, action, demand, suit, proceeding, hearing or notice of violation,
study or investigation, based on or related to the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release into the
environment, of any Hazardous Materials which would result in a fine, penalty or
other cost or expense; and
(v) none of the Grantors have received notice that a Lien arising
under any Environmental Law has attached to any Mortgaged Property owned or
operated by Grantors.
SECTION 3.8 No Conflicts, Consents, etc. Neither the execution and delivery
hereof by any Grantor nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof (i) violates the terms of
any material agreement, Credit Agreement, mortgage, deed of trust, equipment
lease, instrument or other document to which such Grantor is a party, or by
which it may be bound or to which any of its properties or assets may be
subject, (ii) conflicts with any Requirement of Law applicable to the Grantor or
its property or (iii) results in or requires the creation or imposition of any
Lien (other than the Lien contemplated hereby) upon or with respect to any of
the Mortgaged Property. No consent of any party (including, without limitation,
equity holders or creditors of such Grantor), and no consent, authorization,
approval, license or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body or other Person (other than with
respect to any required Permits) is required or if required, such consent has
been obtained, for (i) the granting of a mortgage Lien on and security interest
in the Mortgaged Property by such Grantor granted by it pursuant to this Deed of
Trust or for the execution, delivery or performance hereof by such Grantor
except for the filing of this Deed of Trust and the other filings contemplated
hereby or (ii) the exercise by the Beneficiary or the Trustee of the remedies in
respect of the Mortgaged Property pursuant to this Deed of Trust other than
those required by law in connection with the exercise of the applicable remedy
and those specifically described in the Loan Documents.
SECTION 3.9 Benefit to the Grantors. Each Grantor represents and warrants
that it will receive substantial benefit as a result of the execution, delivery,
and performance of the Credit Agreement and the other Loan Documents.
SECTION 3.10 Foreign Ownership. Neither Borrower nor any partner, member or
stockholder in any Borrower is or will be, and no legal or beneficial interest
of a partner, member or stockholder in Borrower is or will be held, directly or
indirectly, by a "foreign corporation", "foreign partnership", "foreign trust",
"foreign estate", "foreign person", "affiliate" of a "foreign person" or a
"United States intermediary" of a "foreign person" within the meaning of IRC
Sections 897 and 1445, the Foreign Investments in Real Property Tax Act of 1980,
the International Foreign Investment Survey Act of 1976, the Agricultural
Foreign Investment Disclosure Act of 1978, or the regulations promulgated
pursuant to such Acts or any amendments to such Acts.
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ARTICLE IV
CERTAIN COVENANTS OF GRANTORS
SECTION 4.1 Preservation of Corporate Existence. Each Grantor (with respect
to its respective interest only) shall:
(i) preserve and maintain in full force and effect its existence
and good standing under the laws of the jurisdiction of its organization;
(ii) preserve and maintain in full force and effect its
qualification to transact business and good standing in the state in which the
Mortgaged Property is located; and
(iii) preserve and maintain in full force and effect all consents,
authorizations and approvals necessary or required of any Governmental Authority
or any other Person relating to the execution, delivery and performance hereof.
SECTION 4.2 Title. Each Grantor (with respect to its respective interest
only) shall:
(i) (A) keep in effect all material rights and appurtenances to or
that constitute a part of the Mortgaged Property and (B) protect, preserve and
defend its interest in the Mortgaged Property and title thereto, except against
Permitted Collateral Liens (other than the Lien created by this Deed of Trust);
(ii) (A) comply, in all material respects, with each of the terms,
conditions and provisions of any obligation of such Grantor which is secured by
the Mortgaged Property, or the noncompliance with which may result in the
imposition of a Lien on the Mortgaged Property, (B) forever warrant and defend
to the Beneficiary the Lien and security interests created and evidenced hereby
and the validity and priority hereof in any action or proceeding against the
claims of any and all Persons whomsoever affecting or purporting to affect the
Mortgaged Property or any of the rights of the Beneficiary hereunder, except
against Permitted Collateral Liens (other than the Lien of this Deed of Trust),
and (C) maintain a valid and enforceable first priority Lien, except for
Permitted Collateral Liens (other than the Lien of this Deed of Trust) on the
Mortgaged Property and, to the extent any of the Mortgaged Property shall
consist of Fixtures, a first priority security interest in the Mortgaged
Property, which first priority Lien and security interest shall be subject only
to Permitted Collateral Liens; and
(iii) immediately upon obtaining knowledge of the pendency of any
proceedings for the eviction of such Grantor from the Mortgaged Property or any
part thereof by paramount title or otherwise questioning such Grantor's right,
title and interest in, to and under the Mortgaged Property as warranted in this
Deed of Trust, or of any condition that could give rise to any such proceedings,
notify the Beneficiary thereof. The Beneficiary may participate in such
proceedings and such Grantor will deliver or cause to be delivered to the
Beneficiary all instruments requested by the Beneficiary to permit such
participation. In any such proceedings, the Beneficiary may be represented by
counsel reasonably satisfactory to the Beneficiary at the reasonable expense of
the Grantors. If, upon the resolution of such proceedings such Grantor shall
suffer a loss of the Mortgaged Property or any part thereof or interest therein
and title
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insurance proceeds shall be payable in connection therewith, such proceeds are
hereby assigned to and shall be paid to the Beneficiary for deposit into the
Lender's Account and shall be applied in the manner applicable to Net Loss
Proceeds in accordance with the provisions of Section 6.5 of the Credit
Agreement.
SECTION 4.3 Maintenance and Use of Mortgaged Property; Alterations.
(i) Maintenance. Each Grantor shall cause the representations and
warranties set forth in Section 3.3 hereof to continue to be true in each and
every respect and shall pay or cause to be paid when due all Charges imposed
upon or assessed against such Grantor's interest in the Mortgaged Property (and,
in the case of Xxxxxx, to the extent such charges are payable by Xxxxxx in
accordance with the terms of the Mortgaged Leases) costs and expenses relating
thereto, other than such Charges being contested in accordance with Section 9.1
hereof
(ii) Maintenance of Premises. Each Grantor shall not commit or
suffer any waste on the Owned Premises or Leased Premises. In the case of the
Owned Premises, except to the extent to do so shall be Xxxxxx'x obligation under
the Mortgaged Leases, Black Hawk and Black Hawk/Xxxxxx shall at all times
maintain the Owned Premises in good working order, condition and repair,
reasonable wear and tear excepted, and shall use commercially reasonable efforts
to make or cause to be made all repairs structural or nonstructural which are
necessary or appropriate in the conduct of such Grantors' business. In the case
of the Leased Premises, except to the extent to do so shall be the Lessor's
obligation under the Mortgaged Leases, Xxxxxx shall, at all times, maintain the
Leased Premises in good working order, condition and repair, reasonable wear and
tear excepted, and shall use commercially reasonable efforts to make or cause to
be made all repairs, structural (to the extent permitted under the Mortgaged
Leases) or nonstructural, which are necessary or appropriate in the conduct of
the Grantors' business. No Grantor shall, except as permitted in Section
4.3(iii) hereof, alter the occupancy or use of all or any portion of the Owned
Premises or Leased Premises without the prior written consent of the
Beneficiary, which consent shall not be unreasonably withheld. Except to the
extent permitted pursuant to the provisions of Section 4.3(iii) hereof, no
Grantor shall remove, demolish or alter the structural character of any
Improvement now or hereafter erected upon all or any portion of the Owned
Premises or Leased Premises, or permit any such removal, demolition or
alteration, without the prior written consent of the Beneficiary, which consent
shall not be unreasonably withheld.
(iii) Alterations. No Grantor shall, without the prior written
consent of the Beneficiary, which consent shall not be unreasonably withheld
(and, in the case of Xxxxxx, the consent of the Lessor under the Mortgaged
Lease, if any, as may be required under the Mortgaged Leases), make any
Alteration to the Owned Premises or Leased Premises. Whether or not the making
of any Alteration shall require the consent of the Beneficiary pursuant to the
immediately preceding sentence, each Grantor shall (A) complete each Alteration
promptly, in a good and workmanlike manner and in compliance, in all material
respects, with all applicable local laws, ordinances and requirements and (B)
pay when due all claims for labor performed and materials furnished in
connection with such Alteration, unless contested in accordance with the
provisions of Article IX hereof.
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(iv) Permits. Each Grantor shall maintain, or cause to be
maintained for the operation of its business at the Owned Premises or Leased
Premises, as the case may be, and otherwise to the extent such Grantor is
obligated to do so under the Mortgaged Lease, in full force and effect all
Permits contemplated by and subject to Section 3.3(i) hereof. Unless and to the
extent contested by any Grantor in accordance with the provisions of Article IX
hereof, the Grantors shall comply, in all material respects, with all
requirements set forth in the Permits and all Requirements of Law applicable to
all or any portion of the Mortgaged Property or the condition, use or occupancy
of all or any portion thereof or any recorded deed of restriction, declaration,
covenant running with the land or otherwise, now or hereafter in force, subject
to the provisions of Section 3.3 hereof.
(v) Zoning. No Grantor shall initiate, join in, or consent to
any change in or reclassification of the zoning or any other permitted use
classification of the Owned Premises or Leased Premises without the prior
written consent of the Beneficiary, which consent shall not be unreasonably
withheld. Grantor shall not seek any variance under any existing zoning
ordinance or use or permit the use of any portion of the Property in any manner
that could result in such use becoming a non-confirming use under any zoning
ordinance or any other applicable land use law, rule or regulation, without the
prior consent of Beneficiary.
SECTION 4.4 Notices Regarding Certain Defaults. Each Grantor shall,
promptly upon receipt of any written notice regarding (i) any default by such
Grantor relating to the Mortgaged Property or any portion thereof or (ii) the
failure to discharge any of such Grantor's obligations with respect to the
Mortgaged Property or any portion thereof described herein, furnish a copy of
such notice to the Beneficiary.
SECTION 4.5 Access to Mortgaged Property, Books and Records; Other
Information. Upon request to any Grantor, the Beneficiary, its agents,
accountants and attorneys shall have full and free access to visit and inspect,
as applicable, during normal business hours and such other reasonable time as
may be requested by the Beneficiary to all of the Mortgaged Property including,
without limitation, all of the books, correspondence and records of such Grantor
relating thereto. The Beneficiary and its representatives may examine the same,
take extracts therefrom and make photocopies thereof. Each Grantor shall, at any
and all times, within a reasonable time after written request by the
Beneficiary, furnish or cause to be furnished to the Beneficiary, in such manner
and in such detail as may be reasonably requested by the Beneficiary, additional
information with respect to the Mortgaged Property.
SECTIN 4.6 Limitation on Liens; Transfer Restrictions. No Grantor may,
without the prior written consent of the Beneficiary, further mortgage,
encumber, hypothecate, sell, convey or assign all or any part of the Mortgaged
Property or suffer or allow any of the foregoing to occur by operation of law or
otherwise; provided, however, that such Grantor shall have the right to suffer
to exist the following Liens in respect of the Mortgaged Property: (i) Prior
Liens (but not extensions, amendments, supplements or replacements of Prior
Liens unless (A) extended, amended, supplemented or replaced in a manner
permitted by the Credit Agreement or (B) consented to by the Beneficiary which
consent shall not be unreasonably withheld), (ii) the Lien and security interest
created by this Deed of Trust or any other Loan Document, (iii) Contested Liens,
(iv) Liens described in clause (i) of the definition of Permitted Liens
(provided, however, that such Liens shall not extend to or cover any Mortgaged
Property other than equipment
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subject to Capital Lease Obligations or Purchase Money Obligations incurred in
accordance with the provisions of the Credit Agreement) or clause (d) of the
definition of Permitted Liens, (v) Leases to the extent permitted pursuant to
the provisions of Article V hereof, and (vi) in the case of Xxxxxx, rights,
title and interest of the Lessor under the Mortgaged Lease and any Liens against
the Lessor's interest in the Leased Land and the Leased Premises (the Liens
described in clauses (i) through (vi) of this sentence, collectively, "Permitted
Collateral Liens").
SECTION 4.7 Environmental.
(i) Hazardous Materials. Each Grantor (with respect to its
respective interest only) shall (A) comply with any and all present and future
Environmental Laws applicable to the Mortgaged Property, (B) not release, store,
treat, handle, generate, discharge or dispose of any Hazardous Materials at, on,
under or from the Mortgaged Property in violation of or in a manner that could
result in any material liability under any present and future Environmental Law
and (C) take all necessary steps to initiate and expeditiously complete all
remedial, corrective and other action to eliminate any such effect. In the event
any Grantor fails to comply with the covenants in the preceding sentence, the
Beneficiary may, in addition to any other remedies set forth herein, as agent
for such Grantor and at the Grantors' sole cost and expense, cause any
remediation, removal or response action relating to Hazardous Materials required
by applicable Environmental Laws to be taken and the Grantors shall provide to
the Beneficiary and its agents and employees access to the Mortgaged Property
for such purpose. Any reasonable costs or expenses incurred by the Beneficiary
for such purpose shall be immediately due and payable by the Grantors and shall
bear interest at the Default Rate. The Beneficiary shall have the right at any
time when an Event of Default shall have occurred and be continuing and at such
other times when a potential violation of any present or future Environmental
Law exists which in the Beneficiary's reasonable judgment could result in any
material liability or obligation under such Environmental Law, at the sole cost
and expense of the Grantors, to conduct an environmental audit of the Mortgaged
Property by such persons or firms appointed by the Beneficiary, and the Grantors
shall cooperate in all respects in the conduct of such environmental audit,
including, without limitation, by providing access to the Mortgaged Property and
to all records in the Grantors' or any of their respective agents' possession
relating thereto. To the extent that any such environmental audit identifies
conditions which in the Beneficiary's reasonable judgment would result in any
material liability or obligation under any present or future Environmental Law,
the Grantors agree (to the extent caused by any Grantor) to expeditiously
correct any such violation or respond to conditions giving rise to such
liability or obligations in a manner which complies in all material respects
with the Environmental Laws and mitigates associated health and environmental
risks. Each Grantor shall indemnify, defend, protect and hold Beneficiary
harmless from and against all loss, cost, damage or reasonable expense
(including, without limitation, reasonable attorneys' and consultants' fees and
disbursements) that the Beneficiary may sustain by reason of the assertion
against the Beneficiary by any party of any claim relating to such Hazardous
Materials on, under or from the Mortgaged Property or actions taken with respect
thereto as authorized hereunder, except to the extent arising from the gross
negligence or willful misconduct of the Beneficiary. The foregoing
indemnification shall survive repayment of all Secured Obligations and any
release or assignment hereof; and
(ii) Asbestos. No Grantor shall install nor permit to be installed in
or removed from the Mortgaged Property, asbestos or any asbestos-containing
material (collectively,
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"ACM") except in compliance, in all material respects, with all applicable
Environmental Laws, and with respect to any ACM currently present in the
Mortgaged Property, the Grantors shall promptly either (A) remove any ACM which
such Environmental Laws require to be removed or (B) otherwise comply, in all
material respects, with such Environmental Laws with respect to such ACM, all at
the Grantors' sole cost and expense. If the Grantors shall fail so to remove any
ACM or otherwise comply, in all material respects, with such laws or
regulations, the Beneficiary may, in addition to any other remedies set forth
herein, take reasonable or necessary steps to eliminate any ACM from the
Mortgaged Property or otherwise comply, in all material respects, with
applicable law, regulations or orders and the Grantors shall provide to the
Beneficiary and its agents and employees access to the Mortgaged Property for
such purpose. Any reasonable costs or expenses incurred by the Beneficiary for
such purpose shall be immediately due and payable by the Grantors and bear
interest at the Default Rate. The Grantors shall indemnify, defend, protect and
hold the Beneficiary harmless from and against all loss, cost, damage and
expense (including, without limitation, reasonable attorneys' and consultants'
fees and disbursements) that the Beneficiary may sustain, as a result of the
presence of any ACM and any removal thereof from the Mortgaged Property by the
Grantors or compliance with all applicable Environmental Laws. The foregoing
indemnification shall survive repayment of all Secured Obligations and any
release or assignment hereof.
SECTION 4.8 Estoppel Certificates. Each Grantor shall, from time to time,
upon thirty (30) days' prior written reasonable request of the Beneficiary,
execute, acknowledge and deliver to the Beneficiary an Officers' Certificate
stating that this Deed of Trust, the Credit Agreement, and the other Loan
Documents are unmodified and in full force and effect (or, if there have been
modifications, that this Deed of Trust, the Credit Agreement and the other Loan
Documents, as applicable, is or are in full force and effect as modified and
setting forth such modifications) stating the date to which principal and
interest have been paid under the Credit Agreement, and stating any other
information reasonably requested by Lender.
SECTION 4.9 Other Representations, Warranties and Covenants. All of the
representations, warranties and covenants in the Credit Agreement are
incorporated herein by reference.
ARTICLE V
LEASES
SECTION 5.1 Grantors' Affirmative Covenants with Respect to Leases. With
respect to each Lease, each Grantor that has an interest in such Lease shall:
(i) observe and perform, in all material respects, all the
obligations imposed upon the Landlord under such Lease;
(ii) promptly send copies to the Beneficiary of all notices of
default which such Grantor shall send or receive thereunder;
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(iii) enforce all of the terms, covenants and conditions
contained in such Lease upon the part of the Tenant thereunder to be observed or
performed to the extent it would be commercially reasonable to do so; and
(iv) pay when due all rents and other amounts payable under any
leases to which any Grantor is a party or by which any Grantor's properties and
assets are bound.
SECTION 5.2 Grantors' Negative Covenants with Respect to Leases. With
respect to each Lease, no Grantor that has an interest in such Lease shall,
without the prior written consent of the Beneficiary, which consent shall not be
unreasonably withheld:
(i) receive or collect, or permit the receipt or collection
of, any Rent under such Lease more than one (1) month in advance of the
respective period in respect of which such Rent is to accrue, except:
(A) in connection with the execution and delivery of such
Lease (or of any amendment to such Lease), Rent thereunder may be collected and
received in advance in an amount not in excess of one (1) month's Rent;
(B) the amount held by Landlord as a reasonable security
deposit thereunder; and
(C) any amount received and collected for escalation and
other charges in accordance with the terms of such Lease;
(ii) assign, transfer or hypothecate (other than to the
Beneficiary hereunder) any Rent under such Lease whether then due or to accrue
in the future or the interest of such Grantor as Landlord under such Lease,
unless specifically authorized by, and then in accordance with, the terms of the
Credit Agreement;
(iii) enter into any amendment or modification of such Lease
which would materially decrease the unexpired term thereof or decrease the
amount of the Rents payable thereunder or materially impair the value or utility
of the Mortgaged Property or the security provided by this Deed of Trust;
(iv) terminate (whether by exercising any contractual right of
such Grantor to recapture leased space or otherwise) or permit the termination
of such Lease or accept surrender of all or any portion of the space demised
under such Lease prior to the end of the term thereof or accept assignment of
such Lease to such Grantor unless:
(A) the Tenant under such Lease has not paid the
equivalent of two (2) months' Rent and such Grantor has made reasonable efforts
to collect such Rent; and
(B) it would be commercially reasonable to terminate
such Lease; or
(v) waive, excuse, condone or in any manner discharge or
release any Tenants of or from the material obligations of such Tenants under
their respective Leases or guarantors of Tenants from any material obligations
under any guarantees of the Leases except as the same
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would be done by a Prudent Operator with due regard for the security afforded
the Beneficiary thereby.
(vi) Additional Requirements with Respect to New Leases. In
addition to the requirements of Sections 5.1 and 5.2 hereof, (i) no Grantor
shall enter into any Lease after the date hereof (i) prior to receiving
Beneficiary's written consent, (ii) unless the Tenant under such Lease has
entered into a Subordination Agreement, and (iii) unless each Grantor shall
ensure that all leases and all renewals of leases executed after the date hereof
shall (A) provide for rental rates comparable to existing local market rates for
similar properties, (B) be on commercially reasonable terms, and (C) not contain
any terms which would materially adversely affect Lender's rights under the Loan
Documents.
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Grantors. Section 2.2 of
this Deed of Trust constitutes a present, absolute, effective, irrevocable and
complete assignment by each Grantor that has an interest in such Leases and
Rents to the Beneficiary of the Leases and Rents and the right, subject to
applicable law, to collect all sums payable to such Grantor thereunder and apply
the same as the Beneficiary may, in its sole discretion, determine to be
appropriate (including the payment of reasonable costs and expenses in
connection with the maintenance, operation, improvement, insurance, taxes and
upkeep of the Mortgaged Property), which is not conditioned upon the Beneficiary
being in possession of the Owned Premises or Leased Premises. The Beneficiary
hereby grants to each applicable Grantor, however, a revocable license to
collect and apply the Rents and to enforce the obligations of Tenants under the
Leases. Notwithstanding the foregoing, immediately upon the occurrence of and
during the continuance of any Event of Default or a Default, the license granted
in the immediately preceding sentence shall cease and terminate, with or without
any notice, action or proceeding or the intervention of a receiver appointed by
a court.
SECTION 6.2 Collection of Rents by the Beneficiary.
(i) From and after the occurrence and during the continuance of
an Event of Default or a Default, any Rents receivable by the Beneficiary
hereunder, after payment of all proper costs and expenses as Beneficiary may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable costs and expenses in connection with the maintenance, operation,
improvement, insurance, taxes and upkeep of the Mortgaged Property), shall be
applied to the Secured Obligations or, at the option of the Beneficiary, shall
be held by the Beneficiary as additional collateral to secure the performance by
the Grantors of the Secured Obligations. The Beneficiary shall be accountable to
the applicable Grantor only for Rents actually received by the Beneficiary. The
collection of such Rents and the application thereof shall not cure or waive any
Event of Default or a Default or waive, modify or affect notice of Event of
Default or a Default or invalidate any act done pursuant to such notice.
(ii) Each Grantor hereby irrevocably authorizes and directs
Tenant under each Lease to rely upon and comply with any and all notices or
demands from the Beneficiary for
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payment of Rents to the Beneficiary and such Grantor shall have no claim against
Tenant for Rents paid by Tenant to the Beneficiary pursuant to such notice or
demand.
SECTION 6.3 No Release. Neither this Deed of Trust nor any action or
inaction on the part of the Beneficiary shall release any Tenant under any
Lease, any guarantor of any Lease or any Grantor from any of their respective
obligations under such Leases or constitute an assumption of any such obligation
on the part of the Beneficiary. No action or failure to act on the part of any
Grantor shall adversely affect or limit the rights of the Beneficiary under this
Deed of Trust or, through this Deed of Trust, under such Leases. Nothing
contained herein shall operate or be construed to (i) obligate the Beneficiary
to perform any of the terms, covenants or conditions contained in any Lease or
otherwise to impose any obligation upon the Beneficiary with respect to such
Lease (including, without limitation, any obligation arising out of any covenant
of quiet enjoyment contained in such Lease in the event that Tenant under such
Lease shall have been joined as a party defendant in any action by which the
estate of such Tenant shall be terminated) or (ii) place upon the Beneficiary
any obligation for the operation, control, care, management or repair of the
Owned Premises or Leased Premises.
SECTION 6.4 Irrevocable Interest. All rights, powers and privileges of
the Beneficiary herein set forth are coupled with an interest and are
irrevocable, subject to the terms and conditions hereof, and no Grantor shall
take any action under the Leases or otherwise which is inconsistent with this
Deed of Trust or any of the terms hereof and any such action inconsistent
herewith or therewith shall be void.
SECTION 6.5 Amendment to Leases. Each Lease, including, without
limitation, all amendments, modifications, supplements, replacements, extensions
and renewals thereof, shall continue to be subject to the provisions hereof
without the necessity of any further act by any of the parties hereto.
ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges. Unless and to the extent contested by
any Grantor in accordance with the provisions of Article IX hereof, such Grantor
shall pay and discharge, or cause to be paid and discharged, from time to time
when the same shall become due (or within any applicable grace period) (and, in
the case of the Leased Premises, to the extent such payment and discharge shall
be due from Xxxxxx pursuant to the terms of the Mortgaged Leases), all Charges
subject to this Article VII. Each Grantor shall, upon the Beneficiary's request,
deliver to the Beneficiary evidence of the payment by such Grantor of all such
Charges.
SECTION 7.2 Escrow of Taxes. From and after the occurrence and during
the continuance of an Event of Default or a Default, at the option and upon the
request of the Beneficiary, the Grantors shall deposit with the Beneficiary in
an account maintained by the Beneficiary (the "Tax Escrow Fund"), on the first
day of each month, an amount estimated by the Beneficiary to be equal to
one-twelfth of the annual real property taxes and other annual Charges required
to be discharged by the Grantors under Section 7.1 hereof. Such amounts shall be
held by the Beneficiary without interest to the Grantors and applied to the
payment of the
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obligations in respect of which such amounts were deposited, in such priority as
the Beneficiary shall determine, on or before the respective dates on which such
obligations or any part thereof would become delinquent. Nothing contained in
this Article VII shall (i) affect any right or remedy of the Beneficiary under
any provision hereof or of any statute or rule of law to pay any such amount as
provided above from its own funds and to add the amount so paid, together with
interest at the Default Rate during such time that any amount remains
outstanding, to the Secured Obligations or (ii) relieve any Grantor of its
obligations to make or provide for the payment of the annual real property taxes
and other annual Charges required to be discharged by the Grantors under Section
7.1 hereof. Notwithstanding the provisions of this Section 7.2, with respect to
the Leased Land, no deposit with the Beneficiary in respect of any Charge shall
be required if and for so long as deposits in respect of such Charge are made by
the Grantors under the Mortgaged Lease.
SECTION 7.3 Certain Statutory Liens. Unless and to the extent contested
by any Grantor in accordance with the provisions of Article IX hereof, the
Grantors shall timely pay, or cause to be paid, all lawful claims and demands of
mechanics, materialmen, laborers, government agencies administering worker's
compensation insurance, old age pensions and social security benefits and all
other claims, judgments, demands or amounts of any nature which, relate to the
Grantors' (or their respective successors' or assignees') actions at or
affecting the Owned Premises, Leased Premises or the Mortgaged Property and, if
unpaid, would result in, or permit the creation of, a Lien on the Mortgaged
Property or any part thereof, or which would result in forfeiture of all or any
part of the Mortgaged Property.
SECTION 7.4 Stamp and Other Taxes. Unless and to the extent contested
by any Grantor in accordance with the provisions of Article IX hereof, the
Grantors shall pay any United States documentary stamp taxes, with interest and
fines and penalties, and any mortgage recording taxes, with interest and fines
and penalties, that may hereafter be levied, imposed or assessed under or upon
or by reason hereof or the Secured Obligations or any instrument or transaction
affecting or relating to either thereof and in default thereof the Beneficiary
may advance the same and the amount so advanced shall be payable by the Grantors
to the Beneficiary in accordance with the provisions of Section 14.5 hereof.
SECTION 7.5 Certain Tax Law Changes. In the event of the passage after
the date hereof of any law deducting from the value of real property, for the
purpose of taxation, amounts in respect of any Lien thereon or changing in any
way the laws for the taxation of mortgages or debts secured by mortgages for
state or local purposes or the manner of the collection of any Charges, and
imposing any Charges, either directly or indirectly, on this Deed of Trust, the
Credit Agreement or any other Loan Document, the Grantors shall promptly pay to
the Beneficiary such amount or amounts as may be necessary from time to time to
pay any such Charges.
SECTION 7.6 Proceeds of Tax Claim. In the event that the proceeds of
any tax claim to which the Grantors are entitled are paid after the Beneficiary
has exercised its right to foreclose the Lien hereof, such proceeds shall be
paid to the Beneficiary to satisfy any deficiency remaining after such
foreclosure. The Beneficiary shall retain its interest in the proceeds of any
tax claim during any redemption period. The amount of any such proceeds in
excess of any deficiency claim of the Beneficiary shall in a prompt manner be
released to Borrower.
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ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages. The Grantors
shall maintain in respect of the Owned Premises and Leased Premises the
insurance policies and coverages required under Section 6.5 of the Credit
Agreement.
SECTION 8.2 Delivery After Foreclosure. In the event that the proceeds
of any insurance claim to which the Grantors are entitled are paid after the
Beneficiary has exercised its right to foreclose the Lien hereof, such proceeds
shall be paid to the Beneficiary to satisfy any deficiency remaining after such
foreclosure. Beneficiary shall retain its interest in the Insurance Policies
required to be maintained pursuant to this Deed of Trust during any redemption
period. The amount of any such proceeds in excess of any deficiency claim of the
Beneficiary shall be released to Borrower.
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens. Each
Grantor may at its own expense contest the validity, amount or applicability of
any Charges as long as the contest thereof shall be conducted in accordance
with, and permitted pursuant to the provisions of, the Credit Agreement.
Notwithstanding the foregoing provisions of this Section 9.1, (i) no contest of
any such obligations may be pursued by such Grantor (A) if such contest would
expose the Beneficiary to any possible criminal liability or (B) unless such
Grantor shall have furnished a bond or other security therefor reasonably
satisfactory to the Beneficiary, as the case may be, any additional civil
liability for failure to comply with such obligations and (ii) if at any time
payment or performance of any obligation contested by such Grantor pursuant to
this Section 9.1 shall become necessary to prevent the imminent imposition of
remedies because of non-payment, such Grantor shall pay or perform the same in
sufficient time to prevent the imposition of remedies in respect of such default
or prospective default.
SECTION 9.2 Contesting of Insurance. No Grantor shall take any action
that would reasonably be expected to cause the termination, revocation or denial
of any insurance coverage required to be maintained under this Deed of Trust or
that would be the basis for a defense to any claim under any Insurance Policy
maintained in respect of the Owned Premises or Leased Premises and such Grantor
shall otherwise comply in all respects with all Insurance Requirements in
respect of the Owned Premises and Leased Premises; provided, however, that such
Grantor may, at its own expense and after written notice to the Beneficiary, (i)
contest the applicability or enforceability of any such Insurance Requirements
by appropriate legal proceedings, prosecution of which does not constitute a
basis for cancellation or revocation of any insurance coverage required under
Article VIII hereof or (ii) cause the Insurance Policy containing any such
Insurance Requirement to be replaced by a new policy complying with the
provisions of Article VIII hereof.
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ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10. 1 Destruction. If there shall occur any Destruction of the
Mortgaged Property, individually or in the aggregate, in excess of $100,000, the
applicable Grantor shall promptly send to the Beneficiary a written notice
setting forth the nature and extent of such Destruction. The Proceeds of any
insurance payable in respect of such Destruction are hereby assigned and shall
be paid to the Beneficiary. The Net Loss Proceeds arising out of such
Destruction, shall be applied in accordance with the provisions of Section 6.5
of the Credit Agreement.
SECTION 10.2 Condemnation. If there shall occur any Taking or the
commencement of any proceeding thereof, the applicable Grantor shall immediately
notify the Beneficiary upon receiving notice of such Taking or commencement of
proceedings therefor. The Beneficiary may, at its option, participate in any
proceedings or negotiations which might result in any Taking, and the applicable
Grantor shall deliver or cause to be delivered to the Beneficiary all
instruments requested by it to permit such participation. The Beneficiary may be
represented by counsel reasonably satisfactory to it at the reasonable expense
of the Grantors in connection with any such participation. The Grantors shall
pay all reasonable fees, costs and expenses incurred by the Beneficiary in
connection with any Taking and in seeking and obtaining any award or payment on
account thereof. Any proceeds, award or payment in respect of any Taking of any
Mortgaged Property are hereby assigned by each Grantor and shall be paid to the
Beneficiary. The Grantors shall take all steps necessary to notify the
condemning authority of such assignment. The Net Loss Proceeds arising out of
such Taking shall be applied in accordance with the provisions of Section 6.5 of
the Credit Agreement.
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. It shall be an Event of Default
hereunder if (i) there shall have occurred and be continuing an Event of Default
under the Credit Agreement; (ii) if Grantors or any of them fail or neglect to
perform, keep or observe any of the provisions of Sections 4.2, 4.3(v), 4.6,
4.7, 4.8, 5.2(i) - (vi), 8.1 and 14.22(iv); or (iii) if Grantors or any of them
fail or neglect to perform, keep or observe any of the provisions of this Deed
of Trust (other than any provision embodied in or covered by any other clause of
this Section 11.1) and the same shall remain unremedied for thirty (30) days or
more, provided, however, that if any such breach relates to or is based on
compliance with the terms of the Indenture, the thirty (30) day period provided
hereunder shall apply only to the extent that it is not a duplication of any
applicable cure period provided under the Indenture.
SECTION 11.2 Remedies in Case of an Event of Default. If any Event of
Default shall have occurred and be continuing, the Grantors hereby acknowledge
and agree that the Beneficiary or the Trustee may, at the Beneficiary's option,
in addition to any other action permitted under this Deed of Trust or the Credit
Agreement or by law, statute or in equity, take one or more of the following
actions to the greatest extent permitted by local law:
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(i) by written notice to the Administrative Borrower, declare the
entire unpaid amount of the Secured Obligations to be due and payable
immediately, without further notice, presentment, protest, notice of intent to
accelerate, notice of acceleration, demand or action of any nature whatsoever
(each of which is expressly waived by the Grantors) whereupon the same shall
become immediately due and payable;
(ii) personally, or by its agents or attorneys, (A) give notice of such
Event of Default to the Lessors under the Mortgaged Leases, (B) act in all
respects as lessee under the Mortgaged Leases and perform on behalf of and for
the account of the applicable Grantor any of the obligations of lessee
thereunder, (C) enter into and upon and take possession of all or any part of
the Owned Premises and Leased Premises together with the books, records and
accounts of the Grantors relating thereto and, exclude the Grantors, their
respective agents and servants wholly therefrom, (D) use, operate, manage and
control the Leased Premises and conduct the business thereof, (E) maintain and
restore the Owned Premises and Leased Premises, (F) make all necessary or proper
repairs, renewals and replacements and such useful Alterations thereto and
thereon as the Beneficiary may deem advisable, (G) hold, develop, manage, lease
and operate or otherwise use the Owned Premises and Leased Premises and carry on
the business thereof and exercise all rights and powers of the Grantors with
respect thereto either in the name of the Grantors or otherwise or (H) collect
and receive all Rents. The Beneficiary shall be under no liability for or by
reason of any such taking of possession, entry, removal or holding, operation or
management except that any amounts so received by the Beneficiary shall be
applied in accordance with the provisions of the Credit Agreement;
(iii) commence foreclosure proceedings through the Trustee by filing
with the Trustee written notice declaring the default and Beneficiary's election
and demand that the Mortgaged Property (en masse or in separate parcels) be
advertised and sold under the power of sale granted by this Deed of Trust and in
accordance with the statutes of Colorado;
(iv) commence an action in any court of competent jurisdiction to
judicially foreclosure this Deed of Trust or take such steps to protect and
enforce its rights whether by action, suit or proceeding at law or in equity for
the specific performance of any covenant, condition or agreement in the Credit
Agreement and the other Loan Documents, or in aid of the execution of any power
granted in this Deed of Trust, or for any foreclosure hereunder, or for the
enforcement of any other appropriate legal or equitable remedy or otherwise as
the Beneficiary shall elect;
(v) exercise all rights and remedies set forth in Article XII,
including all rights of a secured party under the UCC; or
(vi) exercise all other rights and remedies available at law or in
equity.
SECTION 11.3 Sale of Mortgaged Property if Event of Default Occurs;
Proceeds of Sale.
(i) If any Event of Default shall have occurred and be continuing, the
Beneficiary may commence foreclosure proceedings through Trustee by filing with
Trustee written notice declaring the default and Beneficiary's election and
demand that the Mortgaged
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Property (en masse or in separate parcels) be advertised and sold under the
power of sale granted by this Deed of Trust and in accordance with the statutes
of Colorado; or institute an action to foreclose this Deed of Trust or take such
other action as may be permitted and available to the Beneficiary at law or in
equity for the enforcement of the Credit Agreement and realization on the
Mortgaged Property and proceeds thereon to final judgment and execution thereof
for the Secured Obligations, and in furtherance thereof the Beneficiary may sell
or cause the sale of the Mortgaged Property at one or more sales, as an entirety
or in parcels, at such time and place, upon such terms and after such notice
thereof as may be required or permitted by law or statute or in equity. The
Beneficiary or the Trustee may execute and deliver to the purchaser at such sale
a conveyance of the Mortgaged Property in fee simple and an assignment or
conveyance of all of each Grantor's Interest in the Leases and the Mortgaged
Property, each of which conveyances and assignments shall contain recitals as to
the Event of Default upon which the execution of the power of sale herein
granted depends, and each Grantor hereby constitutes and appoints the
Beneficiary or the Trustee the true and lawful attorneys-in-fact of such Grantor
to make any such recitals, sale, assignment and conveyance, and all of the acts
of the Beneficiary or the Trustee as such attorneys-in-fact are hereby ratified
and confirmed. Each Grantor agrees that such recitals shall be binding and
conclusive upon such Grantor and that any assignment or conveyance to be made by
the Beneficiary or the Trustee shall divest such Grantor of all right, title,
interest, equity and right of redemption, including any statutory redemption, in
and to the Mortgaged Property. The power and agency hereby granted are coupled
with an interest and are irrevocable by death or dissolution, or otherwise, and
are in addition to any and all other remedies which the Beneficiary or the
Trustee may have hereunder, at law or in equity. So long as the Secured
Obligations, or any part thereof, remain unpaid, such Grantor agrees that
possession of the Mortgaged Property by such Grantor, or any Person claiming
under such Grantor, shall be as tenant, and, in case of a sale under power or
upon foreclosure as provided in this Deed of Trust, such Grantor and any Person
in possession under such Grantor, as to whose interest such sale was not made
subject, shall, at the option of the purchaser at such sale, then become and be
tenants holding over, and shall forthwith deliver possession to such purchaser,
or be summarily dispossessed in accordance with the laws applicable to tenants
holding over. In case of any sale under this Deed of Trust by virtue of the
exercise of the powers herein granted, or pursuant to any order in any judicial
proceeding or otherwise, the Mortgaged Property may be sold as an entirety or in
separate parcels in such manner or order as the Beneficiary or the Trustee in
its sole discretion may elect. One or more exercises of powers herein granted
shall not extinguish or exhaust such powers, until the entire Mortgaged Property
is sold or all amounts secured hereby are paid in full.
(ii) Any sale made under or by virtue of this Article XI will divest
all right, title and interest of Grantor in and to the property sold. Subject to
applicable law, any purchaser at a foreclosure sale will receive immediate
possession of the property purchased. If Grantor retains possession of such
property or any part thereof subsequent to such sale, Grantor will be considered
a tenant at sufferance of the purchaser, and will, if Grantor remains in
possession after demand to remove, be subject to eviction and removal, forcible
or otherwise, with or without process of law.
(iii) In the event of any sale made under or by virtue of this Article
XI, the entire principal of, and interest in respect of the Secured Obligations,
if not previously due and
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payable, shall, at the option of the Beneficiary, immediately become due and
payable, anything in this Deed of Trust to the contrary notwithstanding.
(iv) The Proceeds of any sale made under or by virtue of this Article
XI, together with any other sums which then may be held by the Beneficiary or
the Trustee under this Deed of Trust, whether under the provisions of this
Article XI or otherwise, shall be applied in accordance with the provisions of
Section 11.10 below and of the Credit Agreement.
(v) The Beneficiary, any holder of a Note or Notes or the designee of
any of them may bid for and acquire the Mortgaged Property or any part thereof
at any sale made under or by virtue of this Article XI and, in lieu of paying
cash therefor, may make settlement for the purchase price by crediting against
the purchase price the unpaid amounts (whether or not then due and owing) in
respect of the Secured Obligations, after deducting from the sales price the
expense of the sale and the reasonable costs of the action or proceedings and
any other sums that the Beneficiary is authorized to deduct under this Deed of
Trust.
(vi) The Beneficiary may adjourn or cause the Trustee to adjourn from
time to time any sale by the Trustee to be made under or by virtue hereof by
announcement at the time and place appointed for such sale or for such adjourned
sale or sales, and, the Beneficiary or the Trustee, without further notice or
publication, may cause such sale at the time and place to which the same shall
be so adjourned.
(vii) If the Owned Premises or Leased Premises are comprised of more
than one parcel of land, the Beneficiary or the Trustee may take any of the
actions authorized by this Section 11.3 in respect of any or a number of
individual parcels without exhausting the right of sale.
SECTION 11.4 Additional Remedies in Case of an Event of Default.
(i) The Beneficiary shall be entitled to recover judgment as
aforesaid either before, after or during the pendency of any proceedings for the
enforcement of the provisions hereof, and the right of the Beneficiary to
recover such judgment shall not be affected by any entry or sale hereunder, or
by the exercise of any other right, power or remedy for the enforcement of the
provisions hereof, or the foreclosure of, or absolute conveyance pursuant to,
this Deed of Trust. In case of proceedings against any Grantor in insolvency or
bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, the Beneficiary shall be entitled to prove the whole
amount of principal and interest and other payments, charges and costs due in
respect of the Secured Obligations to the full amount thereof without deducting
therefrom any proceeds obtained from the sale of the whole or any part of the
Mortgaged Property; provided, however, that in no case shall the Beneficiary
receive a greater amount than the aggregate of such principal, interest and such
other payments, charges and costs (with interest at the Default Rate) from the
proceeds of the sale of the Mortgaged Property and the distribution from the
estate of such Grantor.
(ii) Any recovery of any judgment by the Beneficiary and any levy of
any execution under any judgment upon the Mortgaged Property shall not affect in
any manner or to any extent the Lien and security interests created and
evidenced hereby upon the Mortgaged
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Property or any part thereof, or any conveyances, powers, rights and remedies of
the Beneficiary hereunder, but such conveyances, powers, rights and remedies
shall continue unimpaired as before.
(iii) Any monies collected by the Beneficiary under this Section 11.4
shall be applied in accordance with the provisions of Section 11.3(iii).
SECTION 11.5 Legal Proceedings After an Event of Default.
(i) After the occurrence and during the continuance of any Event of
Default and immediately upon the commencement of any action, suit or legal
proceedings to obtain judgment for the Secured Obligations or any part thereof,
or of any proceedings to foreclose the Lien and security interest created and
evidenced hereby or otherwise enforce the provisions hereof or of any other
proceedings in aid of the enforcement hereof, each applicable Grantor shall
enter its voluntary appearance in such action, suit or proceeding.
(ii) Upon the occurrence and during the continuance of an Event of
Default, the Beneficiary shall be entitled forthwith as a matter of right,
concurrently or independently of any other right or remedy hereunder either
before or after declaring the Secured Obligations or any part thereof to be due
and payable, to the appointment of a receiver without giving notice to any party
and without regard to the adequacy or inadequacy of any security for the Secured
Obligations or the solvency or insolvency of any person or entity then legally
or equitably liable for the Secured Obligations or any portion thereof. Such
receiver may be obtained pursuant to an application to a court of competent
jurisdiction and obtained from such court as a matter of strict right and
without notice to Grantor or regard to the adequacy of the Mortgaged Property
for the satisfaction of the Secured Obligations. Each Grantor hereby consents to
the appointment of such receiver. Notwithstanding the appointment of any
receiver, the Beneficiary shall be entitled as pledgee to the possession and
control of any cash, deposits or instruments at the time held by or payable or
deliverable under the terms of the Credit Agreement to the Beneficiary and shall
have all the usual powers and duties of receivers in similar cases, including
the full power to rent, maintain and otherwise operate the Mortgaged Property
upon such terms as may be approved by the court.
(iii) No Grantor shall (A) at any time insist upon, or plead, or in any
manner whatsoever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any time
hereafter in force, which may affect the covenants and terms of performance
hereof, (B) claim, take or insist on any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the Mortgaged
Property, or any part thereof, prior to any sale or sales of the Mortgaged
Property which may be made pursuant to this Deed of Trust, or pursuant to any
decree, judgment or order of any court of competent jurisdiction or (C) after
any such sale or sales, claim or exercise any right under any statute heretofore
or hereafter enacted to redeem the property so sold or any part thereof. To the
extent permitted by applicable law, each Grantor hereby expressly, irrevocably
and unconditionally (A) waives all benefit or advantage of any such law or laws,
including, without limitation, any statute of limitations applicable to this
Deed of Trust, (B) waives all rights to have the Mortgaged Property marshalled
on any foreclosure of this Deed of Trust, (C) waives any and all
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rights to trial by jury in any action or proceeding related to the enforcement
hereof, (D) waives any objection which it may now or hereafter have to the
laying of venue of any action, suit or proceeding brought in connection with
this Deed of Trust and further waives and agrees not to plead that any such
action, suit or proceeding brought in any such court has been brought in an
inconvenient forum, (E) waives the right to all notices of any Event of Default
or of any election by Trustee or Beneficiary to exercise or the actual exercise
of any right, remedy or recourse provided for under the Loan Documents, and (F)
covenants not to hinder, delay or impede the execution of any power granted or
delegated to the Beneficiary by this Deed of Trust but to suffer and permit the
execution of every such power as though no such law or laws had been made or
enacted. The Beneficiary shall not be liable for any incorrect or improper
payment made pursuant to this Article XI in the absence of gross negligence or
willful misconduct.
SECTION 11.6 Remedies Not Exclusive. No remedy conferred upon or reserved
to the Beneficiary by this Deed of Trust is intended to be exclusive of any
other remedy or remedies, and each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Deed of Trust or now
or hereafter existing at law or in equity. Any delay or omission of the
Beneficiary to exercise any right or power accruing on any Event of Default
shall not impair any such right or power and shall not be construed to be a
waiver of or acquiescence in any such Event of Default. Every power and remedy
given by this Deed of Trust may be exercised from time to time successively,
concurrently or independently, when and as often as may be deemed expedient by
the Beneficiary in such order and manner as the Beneficiary, in its sole
discretion, may elect. If the Beneficiary accepts any monies required to be paid
by any Grantor under this Deed of Trust after the same become due, such
acceptance shall not constitute a waiver of the right either to require prompt
payment, when due, of all other sums secured by this Deed of Trust or to declare
an Event of Default with regard to subsequent defaults. If the Beneficiary
accepts any monies required to be paid by any Grantor under this Deed of Trust
in an amount less than the sum then due, such acceptance shall be deemed an
acceptance on account only and on the condition that it shall not constitute a
waiver of the obligation of such Grantor to pay the entire sum then due, and
such Grantor's failure to pay the entire sum then due shall be and continue to
be a default hereunder notwithstanding acceptance of such amount on account. No
actions taken by Beneficiary shall be deemed to cure or waive any Event of
Default or waive, modify or affect notice of Event of Default or invalidate any
act done pursuant to such notice.
SECTION 11.7 Discontinuance of Proceedings. If Beneficiary or Trustee
shall have proceeded to invoke any right, remedy or recourse permitted under the
Loan Documents and shall thereafter elect to discontinue or abandon it for any
reason, Beneficiary or Trustee, as the case may be, shall have the unqualified
right to do so and, in such an event, Grantor, Beneficiary and Trustee shall be
restored to their former positions with respect to the Secured Obligations, the
Loan Documents, the Mortgaged Property and otherwise, and the rights, remedies,
recourses and powers of Beneficiary and Trustee shall continue as if the right,
remedy or recourse had never been invoked, but no such discontinuance or
abandonment shall waive any Event of Default which may then exist or the right
of Beneficiary or Trustee thereafter to exercise any right, remedy or recourse
under the Loan Documents for such Event of Default.
SECTION 11.8 Sale of Mortgaged Leases. The word "sale" as used in this
Article XI with respect to the Mortgaged Leases shall mean the sale, transfer,
assignment or conveyance for
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value of the leasehold interest of the applicable Grantor in the Mortgaged
Leases, together with all of such Grantor's right, title and interest in and to
the other items comprising the Mortgaged Property.
SECTION 11.9 No Mortgagee in Possession. Neither the enforcement of any
of the remedies under this Deed of Trust, the assignment of the Rents and Leases
hereunder, the security interests granted hereunder, nor any other remedies
afforded to Beneficiary under the Loan Documents, at law or in equity shall
cause Beneficiary or Trustee to be deemed or construed to be a mortgagee in
possession of the Mortgaged Property, to obligate Beneficiary or Trustee to
lease the Mortgaged Property or attempt to do so, or to take any action, incur
any expense, or perform or discharge any obligation, duty or liability
whatsoever under any of the Leases or otherwise.
SECTION 11.10 Application of Proceeds from Sale. The Trustee will apply
proceeds of sale of the Mortgaged Property in the following order: (i) to all
costs and expenses of the sale, including, but not limited to, the Trustee's
fees and attorneys' fees and costs of documentary and title evidence incurred by
the Agent; (ii) to all sums secured by this Deed of Trust; and (iii) the excess,
if any, to the person or persons legally entitled thereto.
SECTION 11.11 Default Rate of Interest to Continue after Sale. If the
Mortgaged Property or any part thereof is sold at foreclosure as provided
herein, the sum for which the same is sold, for purposes of redemption, will
bear interest at a default rate of interest equal to the Default Rate.
ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement. To the extent that the Mortgaged
Property includes personal property or items of personal property which are or
are to become fixtures under applicable law, this Deed of Trust shall also be
construed as a security agreement under the UCC (with each Grantor as the
"Debtor" and the Beneficiary as the "Secured Party"); and, upon and during the
continuance of an Event of Default, the Beneficiary shall be entitled with
respect to such personal property to exercise all remedies hereunder, all
remedies available under the UCC with respect to fixtures and all other remedies
available under applicable law or in equity. Without limiting the foregoing,
such personal property may, at the Beneficiary's option and upon and during the
continuance of an Event of Default, (i) be sold hereunder together with any sale
of any portion of the Mortgaged Property or otherwise, (ii) be sold pursuant to
the UCC, or (iii) be dealt with by the Beneficiary in any other manner permitted
under applicable law. The Beneficiary may require the Grantors to assemble such
personal property and make it available to the Beneficiary at a place to be
designated by the Beneficiary. Each Grantor acknowledges and agrees that a
disposition of the personal property in accordance with the Beneficiary's rights
and remedies in respect to the Mortgaged Property as heretofore provided is a
commercially reasonable disposition thereof; provided, however, that the
Beneficiary shall give the applicable Grantor not less than ten (10) days' prior
notice of the time and place of any intended disposition.
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SECTION 12.2 Fixture Filing. To the extent that the Mortgaged Property
includes items of personal property which are or are to become fixtures under
applicable law, and to the extent permitted under applicable law, the filing
hereof in the real estate records of the county in which such Mortgaged Property
is located shall also operate from the time of filing as a fixture filing with
respect to such Mortgaged Property, and the following information is applicable
for the purpose of such fixture filing, to wit:
------------------------------------------------------------------------------------
Name and Address of the debtors: Name and Address of the secured party:
Each Grantor being the type of entity
and having the organizational The Beneficiary having the address
identification number and address described in the Preamble hereof.
described in the Preamble hereof with
respect thereto.
------------------------------------------------------------------------------------
This Financing Statement covers the following types or items of property:
The Mortgaged Property.
This instrument covers goods or items of personal property which are or
are to become fixtures upon the real property described in Schedule A
attached hereto.
The name of the record owner of the Property on which such fixtures are
or are to be located is (i) in the case of Parcels 1, 2, 3, 4 and 5
described on Schedule A attached hereto, Black Hawk and (ii) in the
case of Parcel 6 described on Schedule A attached hereto, Black
Hawk/Xxxxxx.
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ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security. Each Grantor
shall, forthwith after the execution and delivery hereof and thereafter, from
time to time, cause this Deed of Trust and any financing statement, continuation
statement or similar instrument relating to any thereof or to any property
intended to be subject to the Lien hereof to be filed, registered and recorded
in such manner and in such places as may be required by any present or future
law in order to publish notice of and fully to protect the validity and priority
thereof or the Lien hereof purported to be created upon the Mortgaged Property
and the interest and rights of the Beneficiary therein. The applicable Grantors
shall (if they have not already done so), at their sole cost and expense,
properly, duly and validly record an appropriate memorandum of each Mortgaged
Lease and any amendments or supplements thereto in each jurisdiction in which
any of the Leased Premises may be situated. The Grantors shall pay or cause to
be paid all taxes and fees incident to such filing, registration and recording,
and all reasonable expenses incident to the preparation, execution and
acknowledgment thereof, and of any instrument of further assurance, and all
Federal or state stamp taxes or other taxes, duties and charges arising out of
or in connection with the execution and delivery of such instruments.
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SECTION 13.2 Further Acts. Each Grantor shall, at the sole cost and expense
of the Grantors, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers, financing statements, continuation statements, instruments and
assurances as the Beneficiary or Trustee shall from time to time reasonably
request, which may be necessary in the judgment of the Beneficiary or Trustee
from time to time to assure, perfect, convey, assign, mortgage, transfer and
confirm unto the Beneficiary or Trustee, the property and rights hereby conveyed
or assigned or which such Grantor may be or may hereafter become bound to convey
or assign to the Beneficiary or Trustee or for carrying out the intention or
facilitating the performance of the terms hereof or the filing, registering or
recording hereof. Without limiting the generality of the foregoing, in the event
that the Beneficiary or Trustee desires to exercise any remedies, consensual
rights or attorney-in-fact powers set forth in this Deed of Trust and determines
it necessary to obtain any approvals or consents of any Governmental Authority
or any other Person therefor, then, upon the reasonable request of the
Beneficiary or Trustee, each Grantor agrees to use its reasonable efforts to
assist and aid the Beneficiary or Trustee to obtain as soon as practicable any
necessary approvals or consents for the exercise of any such remedies, rights
and powers. In the event any Grantor shall fail (i) within ten (10) Business
Days after demand, to execute or take any action required to be executed or
taken by such Grantor under this Section 13.2 to the extent same is necessary to
maintain perfection of the Lien granted to Beneficiary or Trustee hereunder or
(ii) such failure shall constitute an Event of Default, to execute or take any
action required to be executed or taken by such Grantor under this Section 13.2
(other than the type described in clause (i) of this sentence) then, in each of
the cases described in clauses (i) and (ii) of this sentence, the Beneficiary or
Trustee may execute or take the same as the attorney-in-fact for such Grantor,
such power of attorney being coupled with an interest and is irrevocable.
SECTION 13.3 Additional Security. Without notice to or consent of any
Grantor and without impairment of the Lien and rights created by this Deed of
Trust, the Beneficiary may accept (but no Grantor shall be obligated to furnish)
from such Grantor or from any other Person, additional security for the Secured
Obligations. Neither the giving hereof nor the acceptance of any such additional
security shall prevent the Beneficiary from resorting, first, to such additional
security, and, second, to the security created by this Deed of Trust without
affecting the Beneficiary's Lien and rights under this Deed of Trust.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Owned Premises and Leased Premises.
All of the grants, covenants, terms, provisions and conditions in this Deed of
Trust shall run with the Owned Premises and Leased Premises and shall apply to,
and bind the successors and assigns of, the Grantors. If there shall be more
than one grantor with respect to the Mortgaged Property, the covenants and
warranties hereof shall be joint and several. As used herein, "Grantor" shall
refer to each party named as such in the first paragraph of this Deed of Trust
and to any subsequent owner of all or any portion of the Mortgaged Property. All
Persons who may have or acquire an interest in the Mortgaged Property shall be
deemed to have notice of, and be bound by, the terms of the Credit Agreement and
the other Loan Documents; however, no such party shall be entitled to any rights
thereunder without the prior written consent of Beneficiary.
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SECTION 14.2 No Merger. The rights and estate created by this Deed of Trust
shall not, under any circumstances, be held to have merged into any other estate
or interest now owned or hereafter acquired by the Beneficiary unless the
Beneficiary shall have consented to such merger in writing, such consent not to
be unreasonably withheld.
SECTION 14.3 Concerning Beneficiary and Trustee.
(i) The Beneficiary and the Trustee shall have the right hereunder
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including, without
limitation, the release or substitution of the Mortgaged Property), in
accordance with this Deed of Trust and the Credit Agreement. The Beneficiary and
the Trustee may employ agents and attorneys-in-fact in connection herewith and
shall not be liable for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
(ii) The Beneficiary shall, be deemed to have exercised reasonable
care in the custody and preservation of the Mortgaged Property in its possession
if such Mortgaged Property is accorded treatment substantially equivalent to
that which the Beneficiary, in its individual capacity, accords its own property
consisting of similar instruments or interests, it being understood that the
Beneficiary shall have no responsibility for taking any necessary steps to
preserve rights against any Person with respect to any Mortgaged Property.
(iii) The Beneficiary and the Trustee shall be entitled to rely upon
any written notice, statement, certificate, order or other document or any
telephone message believed by it to be genuine and correct and to have been
signed, sent or made by an Authorized Person, and, with respect to all matters
pertaining to this Deed of Trust and its duties hereunder, upon advice of
counsel selected by it.
(iv) If any portion of the Mortgaged Property also constitutes
collateral granted to the Beneficiary under any other deed of trust, mortgage,
security agreement, pledge or instrument of any type, in the event of any
conflict between the provisions hereof and the provisions of such other deed of
trust, mortgage, security agreement, pledge or instrument of any type in respect
of such collateral, the Beneficiary, in its sole discretion, shall select which
provision or provisions shall control.
SECTION 14.4 Beneficiary May Perform; Beneficiary Appointed
Attorney-in-Fact. If any Grantor shall fail to perform any covenants contained
in this Deed of Trust, subject to any applicable grace periods or contest rights
permitted pursuant to Article IX hereof or as otherwise permitted by any Loan
Document (including, without limitation, such Grantor's covenants to (i) pay the
premiums in respect of all required insurance policies hereunder, (ii) pay
Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any
obligations of such Grantor under any Mortgaged Property) or if any warranty on
the part of such Grantor contained herein shall be breached, the Beneficiary or
the Trustee may (but shall not be obligated to) do the same or cause it to be
done or remedy any such breach, and may expend funds for such purpose; provided,
however, that the Beneficiary and the Trustee shall in no event be bound to
inquire into the validity of any tax, Lien, imposition or other obligation which
such Grantor fails to pay or perform as and when required hereby and which such
Grantor does not contest in accordance
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with the provisions of Article IX hereof. Any and all amounts reasonably so
expended by the Beneficiary or Trustee shall be paid by the Grantors in
accordance with the provisions of Section 14.5 hereof. Neither the provisions of
this Section 14.4 nor any action taken by the Beneficiary pursuant to the
provisions of this Section 14.4 shall prevent any such failure to observe any
covenant contained in this Deed of Trust nor any breach of warranty from
constituting an Event of Default. Upon the occurrence and during the continuance
of an Event of Default each Grantor hereby appoints the Beneficiary and the
Trustee its attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor to take any action and to execute any
instrument consistent with the terms hereof and the other Loan Documents which
the Beneficiary may deem necessary or advisable to accomplish the purposes
hereof. The foregoing grant of authority is a power of attorney coupled with an
interest and such appointment shall be irrevocable for the term hereof. Each
Grantor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof.
SECTION 14.5 Expenses. The Grantors will upon demand pay to the Beneficiary
the amount of any and all reasonable costs and expenses, including the
reasonable fees and expenses of its counsel and the reasonable fees and expenses
of any experts and agents which the Beneficiary may incur in connection with (i)
any action, suit or other proceeding affecting the Mortgaged Property or any
part thereof commenced, in which action, suit or proceeding the Beneficiary is
made a party or participates or in which the right to use the Mortgaged Property
or any part thereof is threatened, or in which it becomes necessary in the
judgment of the Beneficiary to defend or uphold the Lien hereof (including,
without limitation, any action, suit or proceeding to establish or uphold the
compliance of the Mortgaged Property with any Requirements of Law), (ii) the
collection of the Secured Obligations, (iii) the enforcement and administration
hereof, (iv) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Mortgaged Property, (v) the exercise or
enforcement of any of the rights of the Beneficiary hereunder or (vi) the
failure by the Grantors to perform or observe any of the provisions hereof. All
amounts expended by the Beneficiary and payable by the Grantors under this
Section 14.5 shall be due upon demand therefor (together with interest thereon
accruing at the Default Rate during the period from and including the date on
which such funds were so expended to the date of repayment) and shall be part of
the Secured Obligations. The Grantors' obligations under this Section 14.5 shall
survive the termination hereof and the discharge of the Grantors' other
obligations under this Deed of Trust.
SECTION 14.6 Indemnity.
(i) The Grantors agree to indemnify, defend, protect, pay and hold
harmless the Beneficiary and the Trustee and the officers, directors, employees,
agents and Affiliates of the Beneficiary and the Trustee (collectively, the
"Indemnitees") from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs (including,
without limitation, settlement costs), expenses or disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto), which may
be imposed on, incurred by or asserted against that Indemnitee, in any manner
relating to or arising out of, the Credit Agreement, any other Loan Document or
any other document evidencing the Secured Obligations (including, without
limitation, any
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misrepresentation by any Grantor in this Deed of Trust, the Credit Agreement,
any other Loan Document or any other document evidencing the Secured Obligations
(the "Indemnified Liabilities"); provided, however, that the Grantors shall have
no obligation to an Indemnitee hereunder with respect to Indemnified Liabilities
to the extent it has been determined by a final decision (after all appeals and
the expiration of time to appeal) by a court of competent jurisdiction that such
Indemnified Liabilities arose from the gross negligence or willful misconduct of
that Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Grantors shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
(ii) Survival. The obligations of the Grantors contained in this
Section 14.6 shall survive the termination hereof and the discharge of the
Grantors' other obligations under this Deed of Trust, the Credit Agreement and
the other Loan Documents.
(iii) Reimbursement. Any amount paid by any Indemnitee as to which
such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Mortgaged Property.
SECTION 14.7 Continuing Security Interest; Assignment. This Deed of Trust
shall create a continuing Lien on and security interest in the Mortgaged
Property and shall (i) be binding upon each Grantor (with respect to its
respective interest only), its respective successors and assigns and (ii) inure,
together with the rights and remedies of the Beneficiary and the Trustee
hereunder, to the benefit of the Beneficiary and the Trustee and each of their
respective successors, transferees and assigns. No other Persons (including,
without limitation, any other creditor of the Grantors) shall have any interest
herein or any right or benefit with respect hereto. Without limiting the
generality of the foregoing clause (ii), Beneficiary, or its successors and
assigns may assign or otherwise transfer any indebtedness held by it secured by
this Deed of Trust to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such assigning
or transferring party, herein or otherwise, subject however, to the provisions
of the Credit Agreement.
SECTION 14.8 Termination; Release. The Grantors shall be entitled to
release this Deed of Trust in accordance with the provisions of Section 3.6 of
the Credit Agreement. In addition, Beneficiary may request release of this Deed
of Trust, regardless of consideration and without the necessity for any notice
to or consent by the holder of any subordinate lien on the Mortgaged Property,
any part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interest
created in or evidenced by the Loan Documents or their status as a first and
prior lien and security interest in and to the Mortgaged Property. The Trustee,
upon production of the Note(s), may duly execute partial releases of the
Mortgaged Property in accordance with the release provisions set forth herein or
in the Credit Agreement, if any, or release this Deed of Trust without further
showing as to additional sums or expenditures advanced hereunder by the
Beneficiary and without liability for so doing, and such release will constitute
a release of lien for all such additional sums and expenditures made pursuant to
this Deed of Trust.
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SECTION 14.9 Modification in Writing. No amendment, modification,
supplement, termination or waiver of or to any provision hereof, nor consent to
any departure by any Grantor therefrom, shall be effective unless the same shall
be done in accordance with the terms of the Credit Agreement and unless in
writing and signed by the Beneficiary and any Grantor. Any amendment,
modification or supplement of or to any provision hereof, any waiver of any
provision hereof and any consent to any departure by any Grantor from the terms
of any provision hereof shall be effective only in the specific instance and for
the specific purpose for which made or given. Except where notice is
specifically required by this Deed of Trust or any other Loan Document, no
notice to or demand on the Grantors in any case shall entitle the Grantors to
any other or further notice or demand in similar or other circumstances.
SECTION 14.10 Notices. Unless otherwise provided herein or in the Credit
Agreement, any notice or other communication herein required or permitted to be
given shall be given in the manner and become effective as set forth in the
Credit Agreement, if to the Grantors, addressed to it at the address of the
Borrower set forth in the Credit Agreement, and as to the Beneficiary, addressed
to it at its address set forth in the Credit Agreement, and as to the Trustee,
addressed to it at the address set forth in the Preamble hereof, or in each case
at such other address as shall be designated by such party in a written notice
to the other party complying as to delivery with the terms of this Section
14.10.
SECTION 14.11 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. THIS
DEED OF TRUST SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS, EXCEPT THAT THE CREATION, VALIDITY OR PERFECTION OF THE
SECURITY INTERESTS AND LIENS HEREUNDER, AND THE REMEDIES OR ENFORCEMENT
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE IN
WHICH THE MORTGAGED PROPERTY IS LOCATED. EACH GRANTOR AGREES THAT SERVICE OF
PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH IN THE CREDIT
AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE BENEFICIARY SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO. IF ANY AGENT APPOINTED BY ANY GRANTOR REFUSES TO
ACCEPT SERVICE, EACH GRANTOR HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL
CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
BENEFICIARY TO BRING PROCEEDINGS AGAINST THE GRANTORS IN THE COURTS OF ANY OTHER
JURISDICTION. EACH GRANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS DEED OF TRUST OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14.12 Severability of Provisions. Any provision hereof which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such
-41-
prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 14.13 Limitation on Interest Payable . It is the intention of the
parties to conform strictly to the usury laws, whether state or Federal, that
are applicable to the transaction of which this Deed of Trust is a part. All
agreements between the Grantors and the Beneficiary, whether now existing or
hereafter arising and whether oral or written, are hereby expressly limited so
that in no contingency or event whatsoever shall the amount paid or agreed to be
paid by the Grantors for the use, forbearance or detention of the money to be
loaned or advanced under the Credit Agreement or any related document or for the
payment or performance of any covenant or obligation contained herein or in the
Credit Agreement or any related document exceed the maximum amount permissible
under applicable Federal or state usury laws. If under any circumstances
whatsoever fulfillment of any such provision, at the time performance of such
provision shall be due, shall involve exceeding the limit of validity prescribed
by law, then the obligation to be fulfilled shall be reduced to the limit of
such validity. If under any circumstances the Grantors shall have paid an amount
deemed interest by applicable law, which would exceed the highest lawful rate,
such amount that would be excessive interest under applicable usury laws shall
be applied to the reduction of the principal amount owing in respect of the
Secured Obligations and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to the Borrower. All sums paid or agreed
to be paid for the use, forbearance or detention of the principal under any
extension of credit by the Beneficiary shall, to the extent permitted by
applicable law, and to the extent necessary to preclude exceeding the limit of
validity prescribed by law, be amortized, prorated, allocated and spread from
the date hereof until payment in full of the Secured Obligations so that the
actual rate of interest on account of such principal amounts is uniform
throughout the term hereof
SECTION 14.14 Business Days. In the event any time period or any date
provided in this Deed of Trust ends or falls on a day other than a Business Day,
then such time period shall be deemed to end and such date shall be deemed to
fall on the next succeeding Business Day, and performance herein may be made on
such Business Day, with the same force and effect as if made on such other day.
SECTION 14.15 Relationship. The relationship of the Beneficiary to the
Grantors hereunder is strictly and solely that of lender and borrowers and
grantors and beneficiary and nothing contained in the Credit Agreement this Deed
of Trust or any other document or instrument now existing and delivered in
connection therewith or otherwise in connection with the Secured Obligations is
intended to create, or shall in any event or under any circumstance be construed
as creating a partnership, joint venture, tenancy-in-common, joint tenancy or
other relationship of any nature whatsoever between the Beneficiary and the
Grantors other than as lender and borrowers and grantors and beneficiary.
SECTION 14.16 Waiver of Stay.
(i) Each Grantor agrees that in the event that such Grantor or any
property or assets of such Grantor shall hereafter become the subject of a
voluntary or involuntary proceeding under the Bankruptcy Code or each Grantor
shall otherwise be a party to any Federal
-42-
or state bankruptcy, insolvency, moratorium or similar proceeding to which the
provisions relating to the automatic stay under Section 362 of the Bankruptcy
Code or any similar provision in any such law is applicable, then, in any such
case, whether or not the Beneficiary has commenced foreclosure proceedings under
this Deed of Trust, the Beneficiary shall be entitled to relief from any such
automatic stay as it relates to the exercise of any of the rights and remedies
(including, without limitation, any foreclosure proceedings) available to the
Beneficiary as provided in this Deed of Trust, in any other Loan Document or any
other document evidencing the Secured Obligations.
(ii) The Beneficiary shall have the right to petition or move any
court having jurisdiction over any proceeding described in Section 14.16(i)
hereof for the purposes provided therein, and each Grantor agrees (i) not to
oppose any such petition or motion and (ii) at the Grantors' sole cost and
expense, to assist and cooperate with the Beneficiary, as may be requested by
the Beneficiary from time to time, in obtaining any relief requested by the
Beneficiary, including, without limitation, by filing any such petitions,
supplemental petitions, requests for relief, documents, instruments or other
items from time to time requested by the Beneficiary or any such court.
SECTION 14.17 No Credit for Payment of Taxes or Impositions. No Grantor
shall be entitled to any credit against the principal, premium, if any, or
interest payable under the Credit Agreement and no Grantor shall be entitled to
any credit against any other sums which may become payable under the terms
thereof or hereof, by reason of the payment of any Charge on the Mortgaged
Property or any part thereof.
SECTION 14.18 No Claims Against the Beneficiary. Nothing contained in this
Deed of Trust shall constitute any consent or request by the Beneficiary,
express or implied, for the performance of any labor or services or the
furnishing of any materials or other property in respect of the Owned Premises
or Leased Premises or any part thereof, nor as giving the Grantors any right,
power or authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion as
would permit the making of any claim against the Beneficiary in respect thereof
or any claim that any Lien based on the performance of such labor or services or
the furnishing of any such materials or other property is prior to the Lien
hereof.
SECTION 14.19 Obligations Absolute. All obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Grantor or the
Borrower;
(ii) any lack of validity or enforceability of the Credit Agreement
or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement or any other
agreement or instrument relating thereto;
-43-
(iv) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to any departure from any
guarantee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect hereof, the Credit Agreement or
any agreement or instrument relating thereto except as specifically set forth in
a waiver granted pursuant to the provisions of Section 14.9 hereof; or
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, any Grantor.
SECTION 14.20 This Section is intentionally omitted.
SECTION 14.21 This Section is intentionally omitted.
SECTION 14.22 Mortgaged Leases.
(i) The applicable Grantors shall punctually and properly perform,
observe and otherwise comply with each and every covenant, agreement,
requirement and condition set forth in the Mortgaged Leases and do or cause to
be done all things necessary or appropriate to keep the Mortgaged Leases in full
force and effect and to preserve and keep unimpaired the rights of the
applicable Grantor thereunder. Upon request of the Beneficiary, the applicable
Grantors constituting the Lessors and Tenants under the Mortgaged Leases shall
deliver an estoppel certificate, addressed to the Beneficiary, stating that
there is no default under the Mortgaged Leases or any state of facts which, with
the passage of time or notice or both, would constitute a default thereunder, or
if there be any default under the Mortgaged Leases, giving the details thereof.
(ii) In the event the applicable Grantor acquires the fee simple
title or any other estate or interest in the property subject to any Mortgaged
Lease, such acquisition will not merge with the leasehold estate created by such
Mortgaged Lease, but such other estate or interest will remain discrete and
immediately become subject to the Lien of this Deed of Trust, and the applicable
Grantor shall execute, acknowledge and deliver any instruments requested by the
Beneficiary to confirm the coverage of the Lien evidenced hereby upon such other
estate or interest. The Grantors shall pay any and all conveyance or mortgage
taxes and filing or similar fees in connection with the execution, delivery,
filing or recording of any such instrument.
(iii) The applicable Grantor shall promptly notify the Beneficiary in
writing of the occurrence of any default (or any event which, with the lapse of
time or notice or both, would constitute a default) on the part of or caused by
any party to the Mortgaged Leases. If for any reason the applicable Grantor
cannot timely make any payment under any Mortgaged Lease or perform or comply
with any of its obligations under any Mortgaged Lease, the applicable Grantor
shall notify the Beneficiary in sufficient time to enable the Beneficiary (but
the Beneficiary shall not be obligated) timely to make such payments and/or to
perform or comply with such other obligations. On receipt by the Beneficiary
from the applicable Grantor pursuant to this Section 14.22(iii), or from the
applicable Lessor under the Mortgaged Leases, of any such notice of default by,
or inability to make any payment by, the Grantor thereunder, the
-44-
Beneficiary may rely thereon and, after reasonable notice to the
applicable Grantor, take such action as the Beneficiary deems necessary or
desirable to cure such default, even though the existence of such default or the
nature thereof is denied by the applicable Grantor or by any other Person.
(iv) No Grantor shall, without the prior written consent of the
Beneficiary, amend, modify, surrender, impair, forfeit, cancel or terminate, or
permit the amendment, modification, surrender, impairment, forfeiture,
cancellation or termination of, any Mortgaged Lease in whole or in part, whether
or not a default shall have occurred and shall be continuing under either
thereof. Any such termination, cancellation, modification, change, supplement,
alteration, amendment or extension without the prior written consent
contemplated by this subsection 14.22(iv) shall be void and of no force or
effect.
(v) The leasehold estate of the applicable Grantor created by the
Mortgaged Leases and the estate of the Lessor, under the Mortgaged Leases shall
each at all times remain separate and apart and retain their separate
identities, and no merger of the leasehold or easement estate of the applicable
Grantor with the estate of the Lessor, will result with respect to the
Beneficiary or with respect to any purchaser acquiring the Mortgaged Property at
any sale on foreclosure of the Lien of this Deed of Trust without the written
consent of the Beneficiary.
(vi) Each Grantor covenants and agrees that if it shall be the subject
of a proceeding under the Federal Bankruptcy Code, it shall not elect to treat
any Mortgaged Lease as terminated (pursuant to Section 365 of the Federal
Bankruptcy Code or any similar statute or law) without the prior written consent
of the Beneficiary. Each Grantor hereby irrevocably assigns to the Beneficiary
the right to exercise such election.
SECTION 14.23 Intercreditor Agreement. With respect to any Collateral
securing the Grantors' obligations under the Credit Agreement and at such time
as and for so long as the Intercreditor Agreement shall be in effect, the rights
and remedies of the Trustee with respect to the Collateral shall be subject to
the provisions of the Intercreditor Agreement.
SECTION 14.24 Construction. This Deed of Trust will be effective as a
mortgage, as well as a deed of trust, and a security agreement under the Uniform
Commercial Code in effect in the State of Colorado, and may be foreclosed either
as mortgage or a deed of trust as to any of the real property encumbered hereby,
as well as a security interest in the personal property encumbered hereby, in
any manner permitted by the laws of the State of Colorado. In the case of any
conflict between the provisions of this Section and the other provisions of this
Deed of Trust, the provisions of this Section will control.
SECTION 14.25 Subordination, Non-Disturbance and Attornment.
(i) Subordination. Notwithstanding anything to the contrary set forth
in any Mortgaged Lease, the Mortgaged Leases and the leasehold estate created
thereby and all of Xxxxxx'x rights thereunder are and shall at all times be
subject and subordinate in all respects to this Deed of Trust and the other Loan
Documents and the Lien thereof, and to all rights of the Trustee and Beneficiary
hereunder and thereunder, and to any and all advances to be made
-45-
hereunder and thereunder, and to all renewals, modifications, consolidations,
replacements and extensions hereof.
(ii) Attornment. Xxxxxx agrees to attorn to, accept and recognize
the Beneficiary or any other Person acquiring title to the Leased Premises
through a foreclosure (an "Acquiring Party") as the landlord under the Mortgaged
Leases pursuant to the provisions expressly set forth therein for the then
remaining balance of the term of the Mortgaged Leases, and any extensions
thereof as made pursuant to the Mortgaged Leases. The foregoing provision shall
be self-operative and shall not require the execution of any further instrument
or agreement by Xxxxxx as a condition to its effectiveness. For purposes of this
Section 14.25, a "foreclosure" shall include (but not be limited to) a sheriff's
or trustee's sale under the power of sale contained in this Deed of Trust or any
other Loan Document, the termination of any superior lease of the Leased
Premises and any other transfer of the Lessor's interest in the Mortgaged
Property under peril of foreclosure, including, without limitation to the
generality of the foregoing, an assignment or sale in lieu of foreclosure.
(iii) Notwithstanding anything to the contrary contained herein or in
the Mortgaged Leases, it is specifically understood and agreed that neither the
Trustee, the Beneficiary, any receiver nor any Acquiring Party shall be:
(A) liable for any act, omission, negligence or default of any
prior landlord (including the Lessors); or
(B) liable for any failure of any prior landlord (including
the Lessors) to construct any improvements or bound by any covenant to construct
any improvement either at the commencement of the term of the Mortgaged Leases
or upon any renewal or extension thereof or upon the addition of additional
space pursuant to any expansion right contained in the Mortgage Leases; or
(C) subject to any offsets, credits, claims or defenses which
Xxxxxx might have against any prior landlord (including the Lessors); or
(D) bound by any rent or additional rent which is payable on a
monthly basis and which Xxxxxx might have paid for more than one (1) month in
advance to any prior landlord (including the Lessors) or by any security deposit
or other prepaid charge which Xxxxxx might have paid in advance to any prior
landlord (including the Lessors); or
(E) liable to Xxxxxx hereunder or under the terms of the
Mortgaged Leases beyond its interest in the Leased Premises; or
(F) bound by any assignment, subletting, renewal, extension or
any other agreement or modification of the Mortgaged Leases made without the
written consent of the Beneficiary, such consent not to be unreasonably
withheld; or
(G) bound by any consensual or negotiated surrender,
cancellation or termination of the Mortgaged Leases, in whole or in part, agreed
upon between the Lessors and Xxxxxx unless effected unilaterally by Xxxxxx
pursuant to the express terms of the Mortgaged Leases.
-46-
Notwithstanding the foregoing, Xxxxxx reserves its right to any and
all claims or causes of action (i) against such prior landlord for prior losses
or damages and (ii) against the successor landlord for all losses or damages
arising from and after the date that such successor landlord takes title to the
Leased Premises.
(iv) Certain Acknowledgments and Agreements by Tenant. Xxxxxx has
notice that the Mortgaged Leases and the rents and all other sums due thereunder
have been assigned to the Beneficiary as security for the Secured Obligations.
In the event the Beneficiary notifies Xxxxxx of the occurrence of a Default
under any of the Loan Documents and demands that Xxxxxx pay its rents and all
other sums due or to become due under the Mortgaged Leases directly to the
Beneficiary, Xxxxxx shall honor such demand and pay its rent and all other sums
due under such Mortgaged Lease directly to the Beneficiary or as otherwise
authorized in writing by the Beneficiary. The Lessors irrevocably authorize
Xxxxxx to make the foregoing payments to the Beneficiary upon such notice and
demand.
(v) Beneficiary to Receive Default Notices. Xxxxxx shall notify the
Beneficiary of any default by the Lessors under the Mortgaged Leases which would
entitle Xxxxxx to cancel the Mortgaged Leases, and agrees that, notwithstanding
any provisions of the Mortgaged Leases to the contrary, no notice of
cancellation thereof shall be effective unless the Beneficiary shall have
received notice of default giving rise to such cancellation and shall have
failed within sixty (60) days after receipt of such notice to cure such default
or, if such default cannot be cured within sixty (60) days, shall have failed
within sixty (60) days after receipt of such notice to commence and thereafter
diligently pursue any action necessary to cure such default.
(vi) Estoppel. Xxxxxx hereby certifies and represents to the
Beneficiary that as of the date of this Deed of Trust:
(A) each Mortgaged Lease is in full force and effect;
(B) all requirements for the commencement and validity of each
Mortgaged Lease have been satisfied and there are no unfulfilled conditions to
Xxxxxx'x obligations under such Mortgaged Lease;
(C) Xxxxxx is not in default under any Mortgaged Lease and has
not received any uncured notice of any default by Xxxxxx under such Mortgaged
Lease; to the best of Xxxxxx'x knowledge, no Lessor is in default under any
Mortgaged Lease; no act, event or condition has occurred which with notice or
the lapse of time, or both, would constitute a default by Xxxxxx or any Lessor
under any Mortgaged Lease; no claim by Xxxxxx of any nature exists against any
Lessor under any Mortgaged Lease; and all obligations of each Lessor have been
fully performed;
(D) there are no defenses, counterclaims or setoffs against
rents or charges due or which may become due under any Mortgaged Lease;
(E) none of the rent which Xxxxxx is required to pay under any
Mortgaged Lease has been prepaid, or will in the future be prepaid, more than
one (1) month in advance;
-47-
(F) Xxxxxx has no right or option contained in any Mortgaged
Lease or in any other document to purchase all or any portion of the Leased
Premises;
(G) no Mortgaged Lease has been modified or amended and each
Mortgaged Lease constitutes the entire agreement between the applicable Lessor
and Xxxxxx relating to the applicable Leased Premises; and
(H) Xxxxxx has not assigned, mortgaged, sublet, encumbered,
conveyed or otherwise transferred any or all of its interest under the Mortgaged
Leases except pursuant to this Deed of Trust.
(vii) (A) The Beneficiary shall have no obligations nor incur any
liability with respect to any warranties of any nature whatsoever, whether
pursuant to any Mortgaged Lease or otherwise, including, without limitation, any
warranties respecting use, compliance with zoning, any Lessor's title, any
Lessor's authority, habitability, fitness for purpose or possession.
(B) In the event that the Beneficiary shall acquire title to any
Leased Premises subject to a Mortgaged Lease, the Beneficiary shall have no
obligation, nor incur any liability, beyond the Beneficiary's then equity
interest, if any, in the Leased Premises, and Xxxxxx shall look exclusively to
such equity interest of the Beneficiary, if any, in the Leased Premises for the
payment and discharge of any obligations imposed upon the Beneficiary hereunder
or under any Lease, and the Beneficiary is hereby released and relieved of any
other obligations hereunder and under such Mortgaged Lease.
(viii) Lien of Loan Documents. Nothing contained in this Section 14.25
shall in any way impair or affect the Lien created by this Deed of Trust or any
other Loan Document or the provisions hereof or thereof.
(ix) Compliance with Lease. Xxxxxx agrees that in the event there is
any inconsistency between the terms and provisions of this Deed of Trust and the
terms and provisions of any Mortgaged Lease, the terms and provisions of this
Deed of Trust shall be controlling.
(x) Further Actions. Xxxxxx agrees at its own expense to execute and
deliver, at any time and from time to time upon the request of the Beneficiary,
Trustee or any Acquiring Party, such documents and instruments (in recordable
form, if requested) as may be necessary or appropriate, in the reasonable
opinion of the Beneficiary or any Acquiring Party, to fully implement or to
further evidence the understandings and agreements contained in this Section
14.25. Moreover, Xxxxxx hereby irrevocably appoints and constitutes the
Beneficiary, Trustee or any Acquiring Party as its true and lawful
attorney-in-fact to execute and deliver any such documents or instruments which
may be necessary or appropriate, in the reasonable opinion of the Beneficiary or
any Acquiring Party, to implement or further evidence such understandings and
agreements and which Xxxxxx, after ten (10) days' notice from the Beneficiary or
any Acquiring Party, has failed to execute and deliver.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-48-
IN WITNESS WHEREOF, the Grantors have caused this Deed of Trust to be
duly executed and delivered under seal the day and year first above written.
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC., a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx,
President
XXXXXX HOTEL VENTURE, a Colorado joint venture partnership
By: BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.,
a Colorado corporation,
Its Joint Venture Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx,
President
By: XXXXXX VENTURES, INC., a Colorado corporation
Its Joint Venture Partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx,
President
BLACK HAWK/XXXXXX ENTERTAINMENT, LLC, a Colorado limited liability company
By: BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC., a Colorado
corporation,
Its Manager
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx,
President
-49-
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx X. Xxxxx as President of Black Hawk Gaming &
Development Company, Inc., a Colorado corporation.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
[SEAL] --------------------------------------
____________ Notary Public
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx X. Xxxxx as President of Black Hawk Gaming &
Development Company, Inc., a Colorado corporation, and as President of Xxxxxx
Ventures, Inc., a Colorado corporation, the joint venture partners of Xxxxxx
Hotel Venture, a Colorado joint venture partnership.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
[SEAL] --------------------------------------
____________ Notary Public
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th day of
July, 2002 by Xxxxxxx X. Xxxxx as President of Black Hawk Gaming & Development
Company, Inc., a Colorado corporation, the Manager of Black Hawk/Xxxxxx
Entertainment LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
[SEAL] ------------------------------------
____________ Notary Public
Schedule A
Legal Description
PARCEL 1:
XXXX 0, 0, 0 XXX XXX XXXXXXXX 30 FEET OF XXX 0, XXXXX 00,
XXXX XX XXXXX XXXX,
XXXXXXXX WITH THAT PORTION OF MAIN STREET ADJOINING SAID LOTS CONVEYED TO XXXXXX
GOLD, INC., A COLORADO CORPORATION AND BLACK HAWK GAMING & DEVELOPMENT COMPANY,
INC. FKA MOUNTAIN CASINO PROPERTIES BY PROPERTY LINE AGREEMENT RECORDED FEBRUARY
26, 1996, IN BOOK 595 AT PAGE 145,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID LOTS CONVEYED TO BLACK
HAWK GAMING & DEVELOPMENT COMPANY, INC. FKA MOUNTAIN CASINO PROPERTIES BY
PROPERTY LINE AGREEMENT RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE AGREEMENT,
RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 000, XXXXXX XX XXXXXX, XXXXX XX
XXXXXXXX.
PARCEI 2:
A PARCEL OF GROUND IN THE CITY OF BLACK HAWK, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES N. 48(0)06' W., 10 FEET FROM THE SOUTHEAST
XXXXXX XX XXX 0, XXXXX 00, XXXX XX XXXXX XXXX; THENCE N. 43(0)33' E., 100.05
FEET; THENCE S. 48(0)06' E., 10 FEET; THENCE N. 43(0)33' E., 48.12 FEET; THENCE
S. 51(0)34' E., 93.30 FEET; THENCE S. 38(0)29' W., 152.36 FEET; THENCE N.
57(0)59' W., 10 FEET; THENCE N. 48(0)06' W., 106.66 FEET TO THE PLACE OF
BEGINNING, SOMETIMES DESCRIBED AS THE EAST 10 FEET OF XXX 0, XXXXX 00, XXXX XX
XXXX XXXX XX. 00 AND THE WEST 10 FEET OF MILL SITE NO. 30 AND TRACT,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID PARCEL CONVEYED TO
XXXXXX GOLD, INC., A COLORADO CORPORATION AND BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC. FKA MOUNTAIN CASINO PROPERTIES BY PROPERTY LINE AGREEMENT RECORDED
FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID PARCEL CONVEYED TO
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC. FKA
MOUNTAIN CASINO PROPERTIES BY PROPERTY LINE AGREEMENT RECORDED FEBRUARY 26,
1996, IN BOOK 595 AT PAGE 183,
EXCEPTING THEREFROM THOSE PORTIONS OF MILL SITE 29 GRANTED TO THE COUNTY OF
XXXXXX BY INSTRUMENTS RECORDED NOVEMBER 6, 1939, IN BOOK 214 AT PAGE 69, AND
APRIL 8, 1940, IN BOOK 214 AT PAGE 225,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE
AGREEMENT, RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE AGREEMENT
RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 138,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 160,
AND EXCEPT ANY PORTION CONVEYED TO BLACK HAWK/XXXXXX ENTERTAINMENT, LLC BY QUIT
CLAIM DEED RECORDED MARCH 24, 1997, IN BOOK 617 AT PAGE 192,
AND EXCEPT ANY PORTION CONVEYED TO THE COLORADO CENTRAL RAILROAD COMPANY BY DEED
RECORDED IN BOOK 72 AT PAGE 363,
AND EXCEPT THOSE PORTIONS OF MILL SITE 29 GRANTED TO THE COUNTY OF XXXXXX BY
INSTRUMENTS RECORDED NOVEMBER 6, 1939, IN BOOK 214 AT PAGE 69 AND APRIL 8, 1940,
IN BOOK 214 AT PAGE 000,
XXXXXX XX XXXXXX, XXXXX XX XXXXXXXX.
PARCEL 3:
THE EAST 15 FEET OF XXX 00,
XXX XX XXX 00, XXXXX 35, AND
ALL OF XXX 0, XXXXX 00,
XXXX XX XXXXX XXXX,
XXXXXXXX WITH AND SUBJECT TO PERPETUAL EASEMENT RECORDED APRIL 15, 1997, IN BOOK
618 AT PAGE 295, AND
TOGETHER WITH AND SUBJECT TO ANY PORTION CONVEYED TO BLACK HAWK GAMING &,
DEVELOPMENT COMPANY, INC., A COLORADO CORPORATION AND XXXXXX HOTEL VENTURE, A
COLORADO JOINT VENTURE BY EASEMENT,
-2-
BOUNDARY AND REAL ESTATE CONVEYANCE AGREEMENT RECORDED MARCH 8, 1994, IN BOOK
560 AT PAGE 428.
EXCEPT ANY PORTION CONTAINED IN DEED RECORDED MARCH 8, 1994, IN BOOK 560 AT PAGE
424,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE
AGREEMENT, RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO 000 XXXX XXXXXX LIMITED LIABILITY COMPANY BY
AGREEMENT RECORDED MARCH 8, 1994, IN BOOK 560 AT PAGE 428.
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 000,
XXXXXX XX XXXXXX, XXXXX XX XXXXXXXX.
PARCEL 4:
THAT PORTION OF THE NINETY NINE (99) LODE A MINING CLAIM, SAID 99 LODE AS
DESCRIBED IN QUIT CLAIM DEED RECORDED DECEMBER 13, 1899, IN BOOK 150 AT PAGE
317, THAT LIES WITHIN THE BOUNDARIES OF PARCELS 1, 2, 3 AND 5, SHOWN HEREIN,
CITY OF BLACK HAWK,
COUNTY OF XXXXXX, STATE OF COLORADO.
PARCEL 5:
THAT PART OF MILL SITE #30, CITY OF BLACK HAWK, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF MILL SITE 30 AT THE BEND POINT ON MAIN
STREET; THENCE N. 35(degrees)41' E., 12.0 FEET BETWEEN MILL SITES 30 AND 31, TO
THE POINT OF BEGINNING; THENCE N. 35(degrees)41' E., 103.61 FEET BETWEEN MILL
SITES 30 AND 31 TO THE SOUTHWESTERLY RIGHT XX XXX XXXX XX XXXXXXX #000; THENCE
N. 51(degrees)34' W., 486.91 FEET ALONG THE HIGHWAY RIGHT OF WAY; THENCE S.
38(degrees)29' W., 152.36 FEET MORE OR LESS FROM A BEND POINT; THENCE S.
57(degrees)59' E., 264.08 FEET ALONG MAIN STREET; THENCE S. 56(degrees)24' E.,
230.29 FEET, MORE OR LESS, TO THE POINT OF BEGINNING;
EXCEPT ANY PORTION THEREOF LYING WITHIN TRACT DESCRIBED IN BOOK 170 AT PAGE 225,
SOMETIMES REFERRED TO AS THE WEST 10 FEET OF MILL SITE #30;
AND EXCEPT ANY PORTION THEREOF LYING WITHIN TRACT DESCRIBED IN BOOK 195 AT PAGE
527;
-3-
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE
AGREEMENT, RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE AGREEMENT
RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 138,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 160,
AND EXCEPT ANY PORTION CONVEYED TO BLACK HAWK/XXXXXX ENTERTAINMENT, LLC BY QUIT
CLAIM DEED RECORDED MARCH 24, 1997, IN BOOK 617 AT PAGE 192,
AND EXCEPT ANY PORTION CONVEYED TO THE COLORADO CENTRAL RAILROAD COMPANY BY DEED
RECORDED IN BOOK 72 AT PAGE 000,
XXXXXX XX XXXXXX, XXXXX XX XXXXXXXX.
PARCEL 6:
A TRACT OF LAND SITUATED IN MILL SITES 30, 31, 32 AND 34, IN THE CITY OF BLACK
HAWK. SITUATED IN THE XXXXX XX XXXXXXX 0, XXXXXXXX 0 XXXXX, XXXXX 72 WEST OF THE
6TH P.M., AND IN BLACK HAWK/XXXXXX SUBDIVISION FILING NO. 1 MINOR SUBDIVISION
PLAT, RECORDED OCTOBER 9, 1998, IN BOOK 653 AT PAGE 44, AND THE 1ST AMENDMENT
RECORDED OCTOBER 9, 1998, IN BOOK 653 AT PAGE 45, AND THE SECOND AMENDMENT
RECORDED OCTOBER 9,1998, IN BOOK 653 AT PAGE 46,
XXXXXX COUNTY, COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT WHICH BEARS S. 66(degrees)30'08" E., A DISTANCE OF 2923.98
FEET FROM THE W 1/4 CORNER OF SAID SECTION 7, ALSO BEING CORNER #21 OF THE
SECURITY PLACER MINERAL SURVEY NO. 5864 AND SITUATED ON THE NORTHEASTERLY
RIGHT-OF-WAY OF MAIN STREET AS SHOWN ON A.D.G. ENGINEERING INC. REALIGNMENT MAPS
FOR THE CITY OF BLACK HAWK; THENCE ALONG THE SAID NORTHEASTERLY RIGHT-OF-WAY THE
FOLLOWING ELEVEN (11) COURSES:
N. 39(degrees)01'53" W., A DISTANCE OF 241.62 FEET TO A POINT;
N. 35(degrees)04'41" W., A DISTANCE OF 58.02 FEET TO A POINT;
N. 43(degrees)11'28" W., A DISTANCE OF 55.15 FEET TO A POINT;
N. 48(degrees)17'59" W., A DISTANCE OF 28.82 FEET TO A POINT;
N. 60(degrees)47'16" W., A DISTANCE OF 211.15 FEET TO A POINT;
N. 35(degrees)40'25" E., A DISTANCE OF 3.31 FEET TO A POINT;
N. 61(degrees)49'18" W., A DISTANCE OF 53.33 FEET TO A POINT;
N. 57(degrees)09'32" W., A DISTANCE OF 94.26 FEET TO A POINT;
-4-
N. 52(degrees)54'00" W., A DISTANCE OF 78.00 FEET TO A POINT;
N. 57(degrees)25'53" W., A DISTANCE OF 76.00 FEET TO A POINT;
N. 60(degrees)09'14" W., A DISTANCE OF 73.21 FEET TO A POINT;
THENCE DEPARTING SAID RIGHT-OF-WAY N. 32(0)45'26" E., A DISTANCE OF 117.52 FEET
TO A POINT ON THE PROPOSED SOUTHWESTERLY RIGHT-OF-WAY OF COLORADO HIGHWAY #119;
THENCE ALONG SAID PROPOSED RIGHT-OF-WAY THE FOLLOWING FOUR (4) COURSES;
S. 51(degrees)35'41" E., A DISTANCE OF 834.94 FEET TO A POINT;
N. 50(degrees)56'24" E., A DISTANCE OF 9.11 FEET TO A POINT;
S. 39(degrees)03'36" E., A DISTANCE OF 40.98 FEET TO A POINT;
S. 51(degrees)35'41" E., A DISTANCE OF 34.03 FEET TO A POINT;
THENCE ON A CURVE TO THE LEFT CONTAINING A CENTRAL ANGLE OF 6(degrees)51'22", A
RADIUS OF 1403.00 FEET, AN ARC LENGTH OF 167.89 FEET, A CHORD BEARING OF S.
55(degrees)01'22" E., A CHORD DISTANCE OF 167.79 FEET TO A POINT;
THENCE CONTINUING ALONG SAID RIGHT-OF-WAY S. 66(degrees)16'40" E., A DISTANCE OF
93.28 FEET TO A POINT;
THENCE S. 23(degrees)43'20" W., A DISTANCE OF 9.66 FEET TO A POINT OF CURVATURE;
THENCE ON A NON TANGENT CURVE TO THE LEFT CONTAINING A CENTRAL ANGLE OF
6(degrees)28'03", A RADIUS OF 1403.00 FEET, AN ARC LENGTH OF 158.37 FEET, A
CHORD BEARING OF S. 65(degrees)30'54" E., A CHORD DISTANCE OF 158.29 FEET TO A
POINT;
THENCE DEPARTING SAID PROPOSED RIGHT-OF-WAY S. 22(degrees)25'26" W., A DISTANCE
OF 4.35 FEET TO A POINT;
THENCE N. 69(degrees)00'00" W., A DISTANCE OF 50.12 FEET TO A POINT;
THENCE N. 67(degrees)30'00" W., A DISTANCE OF 30.14 FEET TO A POINT;
THENCE S. 18(degrees)59'09" W., A DISTANCE OF 75.65 FEET TO A POINT ON THE
AFOREMENTIONED RIGHT-OF-WAY OF MAIN STREET;
THENCE ALONG SAID RIGHT-OF-WAY OF MAIN STREET THE FOLLOWING FOUR (4) COURSES:
N. 71(degrees)00'51" W., A DISTANCE OF 34.52 FEET TO A POINT;
N. 69(degrees)35'02" W., A DISTANCE OF 52.24 FEET TO A POINT;
N. 71(degrees)47'03" W., A DISTANCE OF 35.89 FEET TO A POINT;
N. 66(degrees)13'42" W., A DISTANCE OF 197.56 FEET TO THE POINT OF BEGINNING,
COUNTY OF XXXXXX, STATE OF COLORADO
PARCEL 7:
THE THIRD FLOOR OF A THREE LEVEL PARKING GARAGE LOCATED ON LOT 1A AS SHOWN ON
THAT CERTAIN BLACK HAWK/XXXXXX SUBDIVISION, FILING XX. 0 0XX XXXXXXX, X XXXXX
XXXXXXXXXXX XXXX, RECORDED OCTOBER 9, 1998, IN BOOK 653 AT PAGE 46, IN THE
OFFICE OF THE CLERK AND RECORDER OF XXXXXX COUNTY, COLORADO TOGETHER WITH RAMP
ACCESS SERVING ONLY SAID THIRD FLOOR,
COUNTY OF XXXXXX, STATE OF COLORADO.
-5-
Schedule B
Mortgaged Leases
1. That certain Xxxxxx Land Lease by and between Black Hawk Gaming &
Development Company, Inc., as Lessor, and Xxxxxx Hotel Venture, as Lessee,
affecting the Leased Land and commonly known as the Xxxxxx Hotel property and
Millsite 29 and part of Millsite 30 situated in the City of Black Hawk, County
of Xxxxxx, State of Colorado. A Memorandum of Lease relating to such lease was
recorded on April 24, 1998 in the real property records of Xxxxxx County,
Colorado in Book 639, Page 124, as Document No. 95479.
2. That certain Parking Garage Lease Agreement by and between Black
Hawk/Xxxxxx Entertainment LLC, as Landlord, and Xxxxxx Hotel Venture, as Tenant,
affecting the Leased Land and the Parking Garage Improvement on Parcel 6 of the
Owned Land situated in the City of Black Hawk, County of Xxxxxx, State of
Colorado. A Memorandum of Lease relating to such lease was recorded on April 24,
1998 in the real property records of Xxxxxx County, Colorado in Book 639, Page
129, as Document No. 95480.
-6-
Schedule C
Prior Liens
Each of the liens and other encumbrances excepted as being prior to the Lien
hereof as set forth in Schedule B of the pro forma title policy to be issued
pursuant to the title insurance commitment issued by Clear Creek - Xxxxxx
Abstract & Title Corp., agent for First American Title Insurance Company, dated
as of the date hereof and delivered to the Beneficiary on the date hereof,
bearing Clear Creek - Xxxxxx Abstract & Title Corp., agent for First American
Title Insurance Company reference number ____________ relating to the real
property described in Schedule A attached hereto.
-7-
Schedule D
Leases Affecting the Mortgaged Property
NONE
-8-
Exhibit 1
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made and entered into as of the ___day of ____, ___ by and
between ____________________________, as lender, having an office at
____________ (in such capacity, "Lender"), and __________________, having an
office at ______________ ("Tenant").
R E C I T A L S:
- - - - - - - -
A. Tenant is the tenant under a certain lease dated __________, ____
between _________________________________, as landlord ("Landlord"), and Tenant,
as tenant (as amended through the date hereof, the "Lease"), pursuant to which
Tenant leased a portion (the "Leased Premises") of the property known as,
located at ___________________________, as more particularly described in
Schedule A attached hereto (the "Property").
B. Landlord has or will grant a deed of trust lien on and security
interest in the Property to Lender (for its benefit in exchange for a loan made
pursuant to that certain Credit Agreement dated as of [_______ __, 2002] (the
"Credit Agreement")) pursuant to one or more mortgages, deeds of trust, deeds to
secure debt or similar security instruments (collectively, the "Security
Instruments").
C. Tenant has agreed to subordinate the Lease to the Security
Instruments and to the lien thereof and Lender has agreed not to disturb
Tenant's possessory rights in the Leased Premises under the Lease on the terms
and conditions hereinafter set forth.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Subordination. Notwithstanding anything to the contrary set forth
in the Lease, the Lease and the leasehold estate created thereby and all of
Tenant's rights thereunder are and shall at all times be subject and subordinate
in all respects to the Security Instruments and the lien thereof, and to all
rights of Lender thereunder, and to any and all advances to be made thereunder,
and to all renewals, modifications, consolidations, replacements and extensions
thereof
2. Nondisturbance. So long as Tenant complies with the provisions of
this Agreement, pays all rents and other charges as specified in the Lease and
is not otherwise in default (beyond applicable notice and cure periods) of any
of its obligations and covenants pursuant to the Lease, Lender agrees for itself
and its successors in interest and for any other person acquiring title to the
Property through a foreclosure (an "Acquiring Party"), that Tenant's possession
of the Leased Premises as described in the Lease will not be disturbed during
the term of the Lease by reason of a foreclosure. For purposes of this
Agreement, a "foreclosure" shall
include (but not be limited to) a sheriff's or trustee's sale under the power of
sale contained in the Security Instruments, the termination of any superior
lease of the Property and any other transfer of the Landlord's interest in the
Property under peril of foreclosure, including, without limitation to the
generality of the foregoing, an assignment or sale in lieu of foreclosure.
3. Attornment. Tenant agrees to attorn to, accept and recognize any
Acquiring Party as the landlord under the Lease pursuant to the provisions
expressly set forth therein for the then remaining balance of the term of the
Lease, and any extensions thereof as made pursuant to the Lease. The foregoing
provision shall be self-operative and shall not require the execution of any
further instrument or agreement by Tenant as a condition to its effectiveness.
4. No Liability. Notwithstanding anything to the contrary contained
herein or in the Lease, it is specifically understood and agreed that neither
the Lender, any receiver nor any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default of any prior
landlord (including Landlord); or
(b) liable for any failure of any prior landlord (including Landlord)
to construct any improvements or bound by any covenant to construct any
improvement either at the commencement of the term of the Lease or upon any
renewal or extension thereof or upon the addition of additional space pursuant
to any expansion right contained in the Lease; or
(c) subject to any offsets, credits, claims or defenses which Tenant
might have against any prior landlord (including Landlord); or
(d) bound by any rent or additional rent which is payable on a
monthly basis and which Tenant might have paid for more than one (1) month in
advance to any prior landlord (including Landlord) or by any security deposit or
other prepaid charge which Tenant might have paid in advance to any prior
landlord (including Landlord); or
(e) liable to Tenant hereunder or under the terms of the Lease beyond
its interest in the Property; or
(f) bound by any assignment, subletting, renewal, extension or any
other agreement or modification of the Lease made without the written consent of
Lender; or
(g) bound by any consensual or negotiated surrender, cancellation or
termination of the Lease, in whole or in part, agreed upon between Landlord and
Tenant unless effected unilaterally by Tenant pursuant to the express terms of
the Lease.
Notwithstanding the foregoing, Tenant reserves its right to any and
all claims or causes of action (i) against such prior landlord for prior losses
or damages and (ii) against the successor landlord for all losses or damages
arising from and after the date that such successor landlord takes title to the
Property.
-2-
5. Certain Acknowledgments and Agreements by Tenant. (a) Tenant has
notice that the Lease and the rents and all other sums due thereunder have been
assigned to Lender as security for the obligations set forth in the Credit
Agreement and secured by the Security Instruments. In the event Lender notifies
Tenant of the occurrence of a default under the Security Instruments and demands
that Tenant pay its rents and all other sums due or to become due under the
Lease directly to Lender, Tenant shall honor such demand and pay its rent and
all other sums due under the Lease directly to Lender or as otherwise authorized
in writing by Lender. Landlord irrevocably authorizes Tenant to make the
foregoing payments to Lender upon such notice and demand.
(b) Tenant shall send a copy of any and all notices or statements
under the Lease to Lender at the same time such notices or statements are sent
to Landlord.
(c) This Agreement satisfies any and all conditions or requirements
in the Lease relating to the granting of a non-disturbance agreement.
6. Lender to Receive Default Notices. Tenant shall notify Lender of
any default by Landlord under the Lease which would entitle Tenant to cancel the
Lease, and agrees that, notwithstanding any provisions of the Lease to the
contrary, no notice of cancellation thereof shall be effective unless Lender
shall have received notice of default giving rise to such cancellation and shall
have failed within sixty (60) days after receipt of such notice to cure such
default or, if such default cannot be cured within sixty (60) days, shall have
failed within sixty (60) days after receipt of such notice to commence and
thereafter diligently pursue any action necessary to cure such default.
7. Estoppel. Tenant hereby certifies and represents to Lender that
as of the date of this Agreement:
(a) the Lease is in full force and effect;
(b) all requirements for the commencement and validity of the Lease
have been satisfied and there are no unfulfilled conditions to Tenant's
obligations under the Lease;
(c) Tenant is not in default under the Lease and has not received any
uncured notice of any default by Tenant under the Lease; to the best of Tenant's
knowledge, Landlord is not in default under the Lease; no act, event or
condition has occurred which with notice or the lapse of time, or both, would
constitute a default by Tenant or Landlord under the Lease; no claim by Tenant
of any nature exists against Landlord under the Lease; and all obligations of
Landlord have been fully performed;
(d) there are no defenses, counterclaims or setoffs against rents or
charges due or which may become due under the Lease;
(e) none of the rent which Tenant is required to pay under the Lease
has been prepaid, or will in the future be prepaid, more than one (1) month in
advance;
(f) Tenant has no right or option contained in the Lease or in any
other document to purchase all or any portion of the Leased Premises;
-3-
(g) the Lease has not been modified or amended and constitutes the
entire agreement between Landlord and Tenant relating to the Leased Premises;
(h) Tenant has not assigned, mortgaged, sublet, encumbered, conveyed
or otherwise transferred any or all of its interest under the Lease; and
(i) Tenant has full authority to enter into this Agreement, which has
been duly authorized by all necessary action.
8. Notices. All notices or other written communications hereunder
shall be deemed to have been properly given (i) upon delivery, if delivered in
person with receipt acknowledged by the recipient thereof, (ii) one (1) Business
Day (hereinafter defined) after having been deposited for overnight delivery
with any reputable overnight courier service, or (iii) three (3) Business Days
after having been deposited in any post office or mail depository regularly
maintained by the United States Postal Service and sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
receiving party at its address set forth above or addressed as such party may
from time to time designate by written notice to the other parties. For purposes
of this Section 8, the term "Business Day" shall mean any day other than
Saturday, Sunday or any other day on which banks are required or authorized to
close in New York, New York. Either party by notice to the other may designate
additional or different addresses for subsequent notices or communications.
9. Successors. The obligations and rights of the parties pursuant to
this Agreement shall bind and inure to the benefit of the successors, assigns,
heirs and legal representatives of the respective parties; provided, however,
that in the event of the assignment or transfer of the interest of Lender, all
obligations and liabilities of Lender under this Agreement shall terminate, and
thereupon all such obligations and liabilities shall be the responsibility of
the party to whom Lender's interest is assigned or transferred; and provided,
further. that the interest of Tenant under this Agreement may not be assigned or
transferred without the prior written consent of Lender. In addition, Tenant
acknowledges that all references herein to Landlord shall mean the owner of the
landlord's interest in the Lease, even if said owner shall be different from the
Landlord named in the Recitals.
10. Duplicate Original; Counterparts. This Agreement may be executed
in any number of duplicate originals and each duplicate original shall be deemed
to be an original. This Agreement may be executed in several counterparts, each
of which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement.
11. Limitation of Lender's Liability. (a) Lender shall have no
obligations nor incur any liability with respect to any warranties of any nature
whatsoever, whether pursuant to the Lease or otherwise, including, without
limitation, any warranties respecting use, compliance with zoning, Landlord's
title, Landlord's authority, habitability, fitness for purpose or possession.
(b) In the event that Lender shall acquire title to the Leased
Premises or the Property, Lender shall have no obligation, nor incur any
liability, beyond Lender's then equity interest, if any, in the Leased Premises,
and Tenant shall look exclusively to such equity interest
-4-
of Lender, if any, in the Leased Premises for the payment and discharge of any
obligations imposed upon Lender hereunder or under the Lease, and Lender is
hereby released and relieved of any other obligations hereunder and under the
Lease.
12. Modification in Writing. This Agreement may not be modified
except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
13. Lien of Security Instruments. Nothing contained in this Agreement
shall in any way impair or affect the lien created by the Security Instruments
or the provisions thereof.
14. Compliance with Lease. Tenant agrees that in the event there is
any inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease, the terms and provisions hereof shall be controlling.
15. Governing Law; Severability. This Agreement shall be governed by
the laws of the State of [__________]. If any term of this Agreement or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
such terms to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
16. Further Actions. Tenant agrees at its own expense to execute and
deliver, at any time and from time to time upon the request of Lender or any
Acquiring Party, such documents and instruments (in recordable form, if
requested) as may be necessary or appropriate, in the opinion of Lender or any
Acquiring Party, to fully implement or to further evidence the understandings
and agreements contained in this Agreement. Moreover, Tenant hereby irrevocably
appoints and constitutes Lender or any Acquiring Party as its true and lawful
attorney-in-fact to execute and deliver any such documents or instruments which
may be necessary or appropriate, in the opinion of Lender or any Acquiring
Party, to implement or further evidence such understandings and agreements and
which Tenant, after thirty (30) days' notice from Lender or any Acquiring Party,
has failed to execute and deliver.
-5-
IN WITNESS WHEREOF, Lender and Tenant have duly executed this
Agreement as of the date first above written.
_______________________________,
as Lender
By:_____________________________
Name:
Title:
_______________________________,
as Tenant
By:_____________________________
Name:
Title:
The undersigned, as the Landlord named in the Recitals, having duly
executed this Agreement as of the date first written above, and as grantor,
pledgor, assignor or debtor under the Security Instruments, hereby accepts and
agrees for itself and its successors and assigns, (i) to be bound by the
provisions of Section 5 hereof, (ii) that nothing contained in the foregoing
Agreement (x) shall in any way be deemed to constitute a waiver by Lender of any
of its rights or remedies under the Security Instruments or (y) shall in any way
be deemed to release Landlord from its obligations to comply with the terms,
provisions, conditions, covenants and agreements set forth in the Security
Instruments and (iii) that the provisions of the Security Instruments remain in
full force and effect and must be complied with by Landlord.
_______________________________,
________________________________
By:_____________________________
Name:
Title:
-0-
XXXXXXXXXXXXXX
Xxxxx of________________ )
) ss.:
County of ______________ )
[Local counsel to provide appropriate acknowledgment]
SCHEDULE A to EXHIBIT 1
Description of Real Property
