THIS DOCUMENT PREPARED BY HIRSCHLER, FLEISCHER,
▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇ A PROFESSIONAL CORPORATION
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, AND SECURITY AGREEMENT
(the "Deed of Trust"), effective as of the 26th day of August, 1998, by COLONIAL
DOWNS, L.P., a Virginia limited partnership ("Grantor"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, a
resident of the City of Richmond, Virginia having an address c/o Hirschler,
Fleischer, ▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a resident of the County of Henrico, Virginia having an
address c/o Hirschler, Fleischer, ▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, trustees ("Trustees") and Grantees for indexing purposes
only, and Colonial Downs Holdings, Inc., a Virginia corporation, and its
successors and assigns as holder of the Note described below ("Noteholder").
RECITALS
Grantor is the fee simple owner of certain real property more particularly
described on EXHIBIT A hereto (the "Real Property"). Grantor has obtained
financing from Noteholder in the maximum amount of up to $1,000,000 (the
"Loan"), to be secured by, among other things, the Real Property. The Loan is
evidenced by a certain note of even date herewith made by Grantor in the
principal amount of $1,000,000, due and payable in full as described therein
(the "Note"). This Deed of Trust is given to secure the Loan as evidenced by the
Note.
GRANT IN TRUST
In consideration of the Loan and other good and valuable consideration,
the receipt and sufficiency of all of which are acknowledged, Grantor grants,
conveys and assigns to Trustees with General Warranty of Title all of its right,
title, interest and estate in and to the Real Property, all appurtenances
thereto and all buildings and other improvements now or hereafter located
thereon (the "Improvements").
TOGETHER WITH all of Grantor's right, title, interest and estate in and to
all goods, documents, equipment, fixtures, instruments, contract rights,
accounts, general intangibles, inventory and chattel paper and all other
personal property owned by it, if any, which is located at, a part of, used in
connection with, arising from the operation of, or otherwise pertaining to the
Real Property and Improvements, including, without limitation, Grantor's right,
title, interest and estate in and to the property described in the following
subparagraphs:
(a) All accounts receivable, rents, royalties, issues, income,
revenues and profits from time to time accruing from the Real Property and
Improvements and the "Personal Property" (as defined below), whether under
leases, tenancies, licenses, or concessions now existing or hereafter created
(collectively, the "Rents and Profits").
(b) All tangible personal property (the "Personal Property") owned
by Grantor and now or at any time hereafter located on or at the Real Property
and Improvements or used in connection therewith, including, but not limited to:
all screens, awnings, storm windows and doors, window shades, blinds, drapery
and curtain rods, brackets, electric and other signs, dynamos, generators,
engines, ducts, computers, computer terminals, monitors and printers, telephone
systems, switchboards, controls, motors, belting, gas and electric fixtures,
bulbs, wiring, conduits and other gas and electric equipment, apparatus,
machinery, fittings, appliances and appurtenances, elevators, escalators, power
and machinery plants for running and operation of elevators and escalators, fire
prevention and extinguishing apparatus, bathtubs, sinks, water closets, basins,
faucets, tanks, burners, furnaces, heaters, boilers, pipes, pumps, radiators,
fans and other power, heating, plumbing, hot water, sanitary, drainage and
ventilating apparatus and equipment, air conditioning and cooling systems and
equipment, water cooling and condensing apparatus and equipment, apparatus for
exclusion and extermination of vermin and insects, vacuum and other cleaning
systems, dust removal apparatus, lifting and housekeeping machinery, apparatus
and equipment, call systems and other communications systems, ash and fuel
conveyors, incinerators, incinerating fixtures and equipment, laundry machinery,
apparatus and equipment, laundry disposal equipment, store fixtures and
equipment, murals, mirrors attached to walls, doors and other facilities,
wall-to-wall carpets, linoleum, inlaid floor coverings, electronic apparatus and
equipment, trees, shrubs, plants, planter and flower boxes, blackboards,
bulletin boards, stanchions, easels, platforms, compressors, coils, water
coolers and other refrigerating and cooking apparatus and equipment, medicine
chests, commodes, hospital equipment, cornices, mantels, paneling, partitions,
drafting tables, drawing boards, drawing cases, safes, cabinets, lockers,
shelving, printing equipment and apparatus, spotlight equipment, and all other
articles, equipment, appliances, implements, devices and accessories or items
whatsoever (including any and all accessions to, proceeds of replacements of and
substitutions for the equipment), used or to be used, or placed or to be placed,
in the rooms, halls, lounges, offices, lobbies, lavatories, basement cellars,
vaults and other portions of the Improvements, whether herein enumerated or not,
plumbing and electric apparatus and equipment, cleaning and maintenance
equipment, all boilers, tanks, engines, motors, power equipment, piping and
plumbing fixtures, pumps, heating and air-conditioning equipment and systems and
lighting equipment and systems, furniture and fixtures, materials for tenant
improvements, ranges, dishwashers, refrigerators and other appliances, and
building materials and supplies.
(c) All equipment leases for tangible personal property which but
for the fact that said tangible personal property is not owned by Grantor, would
be described in subparagraph (b) immediately above.
(d) All architectural and engineering plans and similar materials
relating to the Improvements now existing or to be constructed on the Real
Property, whether now owned or in existence or hereafter acquired by or prepared
for Grantor.
(e) All contracts for the operation of Improvements and other
development on the Real Property and all warranties, if any, relating to the
Improvements (the "Contracts").
(f) All the estate, interest, right, title and other claims or
demands, including, without limitation, claims or demands with respect to the
proceeds and refunds of premiums on insurance in effect which Grantor now has or
may hereafter acquire in or with respect to the Real Property and Personal
Property, and any and all compensation, awards and other payments, damages,
rights of action and proceeds made for, or with respect to, the taking by
eminent domain, or by any proceeding or purchase in lieu thereof, of the whole
or any part of the Real Property and Personal Property, including, without
limitation, any awards resulting from a change of grade of streets and awards
for severance damages.
(g) All of Grantor's right, title and interest, as lessor or lessee,
in and to all leases, subleases, concessions, licenses and agreements (whether
now existing or hereafter created) of or related to the Real Property and
Improvements (the "Leases").
(h) All of Grantor's right, title and interest in and to all utility
security deposits or bonds concerning the Real Property or any part or parcel
thereof.
(i) All right, title, interest, property, claim and demand, if any,
of Grantor in and to the land lying in the bed of any street, road, avenue or
alley, or gores of land in front of or adjoining the Real Property.
TOGETHER WITH all proceeds of sale of the Property (hereinafter defined)
and all proceeds of the conversion, whether voluntary or involuntary, of any of
the Property into cash or other liquid claims, including without limitation all
awards, payments or proceeds with any interest thereon, and the right to receive
same, which may be made as the result of any casualty, any exercise of the right
of eminent domain or deed in lieu thereof, the alteration of the grade of any
street and any injury to or decrease in the value of the Property, together with
reasonable counsel fees, costs and disbursements incurred by Noteholder in
connection with collection of such awards, payments and proceeds. Nothing herein
shall be deemed to be authorization by Noteholder to Grantor to sell, assign or
otherwise dispose of the Property, except in accordance with the provisions of
this Deed of Trust. Grantor agrees to execute and deliver from time to time such
further instruments as may be requested by Noteholder to confirm the assignment
to Noteholder of any such award, payment or proceeds.
TOGETHER WITH all of Grantor's right, title and interest in and under all
instruments, documents, chattel paper, accounts receivable, trade name rights
and general business intangibles relating to or arising from any of the Property
and any and all cash and noncash proceeds and products relating to or arising
from any of the foregoing collateral.
All of the above-described Real Property, Improvements, Leases and
Contracts, Rents and Profits, Personal Property and other property and interests
herein granted and conveyed by Grantor are referred to herein collectively as
the "Property".
It is intended that this Deed of Trust shall serve as a security agreement
granting Noteholder a security interest in all of the Property not classified as
real property under applicable law, but including fixtures, in accordance with
the terms of the Uniform Commercial Code as adopted in the Commonwealth of
Virginia (the "UCC"). As to all such property, Noteholder shall have, without
limitation, all of the rights and remedies of a secured party under the UCC. The
recordation of this Deed of Trust shall also constitute a fixture filing in
accordance with the provisions of the UCC. Grantor covenants and agrees to
execute promptly upon request such financing statements as Noteholder may
require from time to time, to cause same to be filed in the appropriate
jurisdiction, and to take such other actions as Noteholder may require in order
to perfect the security interest created by this Deed of Trust.
IN TRUST to secure the performance of the covenants contained herein and
in the other documents securing the Note or executed in connection with the Loan
(collectively, the "Loan Documents") and the payment of the Note and all other
amounts secured by or owed pursuant to the Loan Documents.
AND FURTHER IN TRUST to secure all other liabilities of Grantor to
Noteholder under the Loan Documents, whether now existing or hereafter incurred,
direct, indirect, absolute, contingent or otherwise, whether matured or
unmatured, liquidated or unliquidated, secured or unsecured, whether original,
renewed or extended.
1. COVENANTS AND AGREEMENTS. Grantor covenants and agrees as follows:
(a) Payment of Note. Grantor shall pay the principal of and interest
on the Note, together with all other sums due thereunder and hereunder, without
demand (except as may be provided in the Note or in any other Loan Document),
deduction or offset, when and as the same shall become due.
(b) Performance and Compliance. Grantor shall perform, comply with
and abide by all of the stipulations, agreements, conditions and covenants
contained and set forth in the Note, this Deed of Trust and the Loan Documents.
(c) Maintenance, Compliance with Laws. The Property shall be used as
a satellite wagering facility, restaurant and bar with ancillary facilities (the
"Project") and maintained accordingly and in compliance with Virginia law and
the rules and regulations of the Virginia Racing Commission. Noteholder may,
upon reasonable notice, from time to time inspect the Property. Noteholder may
accomplish any inspection by its officers or other representatives, and such
officers and representatives shall be permitted access to the Property and every
part thereof. If any inspection by Noteholder reveals the need for repairs or
maintenance, Grantor shall expeditiously cause same to be completed after
written notice from Noteholder. Except as may be contemplated by the use of the
proceeds of the Loan, Grantor: (i) shall not structurally alter or demolish any
building, parking lot or other improvement now or hereafter located on the
Property without the prior written consent of Noteholder, which consent
Noteholder may grant or withhold in its sole discretion without being governed
by any standard of reasonableness, (ii) shall not commit or suffer any waste to
the Property, (iii) shall comply with all present and future statutes,
ordinances, rules, regulations and requirements of any governmental authority
applicable to the Property or any part thereof or to Grantor's operations at the
Property, including without limitation those related to oil or hazardous waste
or hazardous materials and (iv) shall not dispose of Personal Property except as
permitted by Noteholder.
(d) Governmental Charges. Grantor shall pay and discharge any and
all taxes of every kind and nature, all general and special assessments, levies,
permits, inspection and license fees, all water and sewer charges, all other
public charges imposed upon or assessed against it or the Property or any part
thereof or upon the revenues, rents, issues, income and profits of the Property
or arising with respect to the occupancy, use or possession thereof, not later
than ten (10) days before the same become delinquent. Grantor shall deliver to
Noteholder receipts evidencing the payment of all such amounts within a
reasonable period of time after payment. Grantor further agrees that if it shall
default in making any such payment within ten (10) days after its due date,
Noteholder may make such payment, together with penalties and interest thereon,
on behalf of Grantor. The amount of such payment and expenses incurred by
Noteholder related to same shall be secured by this Deed of Trust. Grantor shall
repay the amount of any such payment and expenses to Noteholder, together with
interest thereon at the rate of 18% per annum (the "Default Rate") from the date
of demand within ten (10) days after demand for said payment is made by
Noteholder to Grantor.
Nothing in this subparagraph (d) shall require the payment or
discharge of any obligation imposed upon Grantor by this subparagraph so long as
the Grantor shall, in good faith and at its own expense, contest the same or the
validity thereof or other realization thereon or the sale or forfeiture of the
Property or any part thereof to satisfy the same; provided, however, that during
such contest Grantor shall deposit money in an interest bearing account or
provide a bond or other security satisfactory to Noteholder assuring the
performance by Grantor of its obligations hereunder and the payment of any
additional charge, penalty or expense arising out of or incurred as a result of
any such contest; and provided further, that if at any time payment of any
obligation of Grantor shall become necessary to prevent a tax sale of the
Property or any portion thereof, then Grantor shall pay the amount required in
sufficient time to prevent any sale, forfeiture or termination.
(e) Condemnation. If any proceedings are instituted or threatened to
take the Property or any part thereof by exercise of the power of eminent
domain, Grantor shall give Noteholder prompt notice thereof. Any award paid to
Grantor shall be paid to Noteholder, up to the amount of the outstanding
principal balance and unpaid accrued interest of the Loan. Grantor hereby
appoints Noteholder as its attorney in fact with the power to receive and give
all appropriate discharges for any such award. The foregoing power of attorney
is a power coupled with an interest, is irrevocable, and shall not terminate
upon the insolvency or dissolution of Grantor and is immediately effective.
Noteholder shall have the right, at its discretion, to participate in such
proceedings at the expense of Grantor, and Grantor agrees to execute such
documents and take such other actions as may be required by Noteholder to permit
such participation. Any such award may, at the option of Noteholder, be (i)
applied to the prepayment of the principal of the Note in inverse order of
maturity of the installments thereof, (ii) applied to the payment of accrued
interest on the Note, (iii) applied to any other sums secured by and owing under
this Deed of Trust, or (iv) released to Grantor, in whole or in part upon
conditions satisfactory to Noteholder. If any portion of a condemnation award is
permitted to be used for the purpose of rebuilding or repairing the Property, or
for any other purposes, Noteholder shall not be deemed to have thereby waived or
impaired any equitable or statutory lien or right under or by virtue of this
Deed of Trust. There shall be no prepayment premium, fee or penalty when
condemnation proceeds are used to prepay the Note. If the entire Property is
taken by condemnation or is conveyed by deed in lieu thereof, and the proceeds
therefrom are not sufficient to pay all sums secured by this Deed of Trust,
Noteholder may declare all sums secured by this Deed of Trust immediately due
and payable. Grantor shall continue, notwithstanding any taking by eminent
domain, to pay any interest as provided in the Note until any such award or
payment shall have been actually received by Noteholder. Any reduction in the
principal sum resulting from the application by Noteholder of such award or
payment as herein set forth shall be deemed to take effect only on the date of
such receipt.
(f) Recordation. Grantor, without expense to Noteholder, immediately
upon the execution and delivery of this Deed of Trust and thereafter from time
to time, shall cause this Deed of Trust and any financing statement or other
security instrument creating a lien or evidencing the lien hereof upon or
perfecting the security interest given herein in the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to provide notice of, perfect and fully protect the lien hereof upon and
the interest of Noteholder in the Property.
(g) Mechanics, Materialmen's and Other Liens. Grantor shall: (i)
keep the Property free and clear of all encumbrances, liens, mortgages, deeds of
trust, security interests and financing statements superior or subordinate to
Noteholder's interests, except for liens for taxes not yet due, (ii) pay, bond
over, or cause to be discharged of record, all claims and demands of mechanics,
materialmen, laborers, and others which, if unpaid, might result in, or permit
the creation of, a lien on the Property or any part thereof within twenty (20)
days of the filing of the lien, time being of the essence; and (iii) do or cause
to be done everything necessary so that the first lien of this Deed of Trust
shall be fully preserved without expense to Trustees or Noteholder.
(h) Books and Records. (i) Grantor shall keep full and correct
records and books of account in accordance with generally accepted accounting
principles consistently applied showing in detail the earnings and expenses
relating to the Property; (ii) Noteholder, or its agents, shall at all
reasonable times have unrestricted access to the records, accounting books,
contracts, subcontracts, bills and statements of Grantor including any
supporting or related vouchers or other instruments as related in any manner to
the Improvements and shall have the right to make copies of the same. If
Noteholder so requires, the records, books, vouchers, or other instruments shall
be made available at Grantor's office to an accountant of Noteholder's choice
for audit, examination, inspection, and photocopying or other type of
duplication; and (iii) Noteholder, or its agents during business hours shall
have the right to visit and inspect the Property, subject to the rights of
tenants, and occupants in occupancy.
(i) Insurance Requirements.
(i) Grantor shall obtain and maintain on the Improvements, and
the Personal Property located at, the Real Property, or which may hereafter be
erected or placed thereon, and all other real, mixed or personal property now or
hereafter encumbered by the lien of this Deed of Trust physical hazard insurance
on an "all risks" basis with a Replacement Cost Endorsement, covering the perils
of fire, flood (if in a flood hazard zone), earthquakes (if in an earthquake
zone), boiler and machinery (to include major components of HVAC systems if not
already included in the above coverage) and such other equipment as Noteholder
may require, and extended coverage in an amount at least equal to the amount of
the Loan and not less than the "Full Replacement Cost" of the Improvements and
Personal Property. "Full Replacement Cost" shall mean the cost of replacing the
Improvements and Personal Property without deduction for physical depreciation.
(ii) Grantor shall obtain and maintain comprehensive public
liability insurance covering claims for bodily injury, death and property damage
in an amount which Noteholder may reasonably require.
(iii) Grantor shall obtain and maintain business interruption
coverage in an amount which is mutually acceptable to Grantor and Noteholder.
(iv) All liability coverages shall insure Noteholder as an
additional insured, and all other forms of insurance shall insure Noteholder as
first mortgagee. All insurance policies shall be written by a company qualified
to do business in Virginia and shall provide for not less than thirty (30) days'
written notice to Noteholder prior to modification or cancellation. The policy
shall not contain a co-insurance clause or other clause limiting the amount of
coverage under any conditions. Grantor shall notify, instruct and authorize the
companies issuing all policies to make any and all loss drafts thereunder
payable to Noteholder. Noteholder may on behalf of Grantor adjust and compromise
any claims under such insurance and collect and receive proceeds thereof and is
hereby irrevocably appointed attorney in fact for Grantor coupled with an
interest, for such purposes, and may deduct from such proceeds any expense
reasonably incurred by it. If any sum of money shall become payable under such
policy or policies of insurance and is used for the purpose of rebuilding or
repairing the damaged Property, or for any other purposes, Noteholder shall not
be deemed to have thereby waived or impaired any equity or statutory lien or
right under or by virtue of this Deed of Trust.
(v) Grantor shall deliver to Noteholder certified copies of
all insurance policies required hereunder.
(vi) In the event of loss or physical damage to the Property,
Grantor shall give immediate written notice thereof to Noteholder and Noteholder
may make proof of loss if the same is not made promptly by Grantor. All right,
title, and interest of Grantor in and to any insurance policies and the proceeds
therefrom are assigned to Noteholder including unearned premiums. As long as
Grantor is not in default of its obligations under the Note or this Deed of
Trust, all proceeds deposited with Noteholder shall be applied to payment of the
cost of repair, replacement or restoration of such physical damage to the
Property unless Grantor and Noteholder otherwise agree.
(vii) Grantor shall deliver to Noteholder notices of payment
dates and proof of payment of premiums on all insurance policies as well as such
certificates and proof of insurance as Noteholder shall reasonably request.
(viii) Any such insurance coverage may be maintained under
blanket insurance policies meeting all of the criteria set forth herein.
(j) No Sale or Other Transfer. Grantor shall not, without
Noteholder's prior written consent, voluntarily or by operation of law sell,
transfer or convey Grantor's interest in the Property or any general partnership
interests in the Grantor. Noteholder may give or refuse approval to any such
sale, transfer or conveyance in its sole discretion without being governed by
any standard of reasonableness. FAILURE TO OBTAIN THE PRIOR WRITTEN APPROVAL OF
NOTEHOLDER TO ANY SALE, TRANSFER, OR CONVEYANCE OF THE PROPERTY OR A SUBSTANTIAL
CHANGE IN GRANTOR'S LEGAL OR EQUITABLE OWNERSHIP SHALL CONSTITUTE AN EVENT OF
DEFAULT HEREIN, AND ANY AND ALL SUMS OWED PURSUANT TO THE NOTE SHALL BECOME
IMMEDIATELY DUE AND PAYABLE, AT THE OPTION OF NOTEHOLDER.
(k) Indemnification. Grantor shall indemnify, defend and hold
Trustees and Noteholder harmless from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Trustees or Noteholder by reason of (i) any
failure on the part of Grantor to perform or comply with any of the covenants or
conditions of this Deed of Trust; or (ii) the performance of any labor or
services or the furnishing of any materials or other property with respect to
the Property or any part thereof; or (iii) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the Property or
any part thereof; or (iv) any enforcement against Noteholder. Any amounts
payable under this paragraph which are not paid within ten (10) days after
written demand therefor by Noteholder shall bear interest at the Default Rate
from the date of such demand. If any action, suit or proceeding is brought
against Trustees or Noteholder by reason of any such occurrence, Grantor, upon
the written request of Noteholder, shall at Grantor's expense resist and defend
such action, suit or proceeding or will cause the same to be resisted and
defended by counsel acceptable to Noteholder.
(l) Covenants of Title. Grantor covenants and warrants that (i)
Grantor has a good and marketable fee simple title in and to the Property and
any other rights and property granted, conveyed or assigned by Grantor by this
Deed of Trust, subject to the exceptions set forth in EXHIBIT B; (ii) Grantor
has full power and lawful authority to convey the same to Trustees; (iii)
Trustees shall have quiet possession of the Property subject to the exceptions
set forth above; (iv) Grantor will make, execute, acknowledge and deliver, by
instruments reasonably satisfactory to Noteholder, all such further assurances
as at any time hereafter reasonably may be desired by Noteholder for the full
and effective conveyance of the Property; and (v) Grantor will defend the title
to the Property against all adverse assertions and claims whatsoever except
those arising from the exceptions set forth above.
(m) Expenses of Noteholder. Grantor agrees to pay all costs and
expenses of Noteholder, including reasonable attorneys' fees, if Noteholder
finds it necessary or desirable to secure the services or advice of one or more
attorneys with regard to collection of the Note or to the protection of its
rights under the Note, this Deed of Trust or other security for the Note. In
addition, Grantor agrees to pay all costs and expenses, including reasonable
attorneys' fees, incurred by Noteholder in having the Property abandoned by or
reclaimed from any estate in bankruptcy, or in attempting to have any stay or
injunction against the enforcement or collection of the Note or against
foreclosure of the Property lifted by any bankruptcy or other court. All such
sums shall be secured hereby, are due and payable within ten (10) days after
demand, and, if not paid within ten (10) days after demand, shall bear interest
at the Default Rate.
(n) Expenses of Trustees. If Trustees or Noteholder shall be made a
party to or shall intervene in any action or proceeding, whether in court or
before any governmental agency, affecting the Property or the title thereto or
the interest of Trustees or Noteholder under this Deed of Trust, including,
without limitation, any form of condemnation or eminent domain proceeding,
Trustees and Noteholder shall be reimbursed by Grantor upon demand for all
costs, charges and reasonable attorneys' fees incurred by them or either of them
in any such case. All such sums shall be secured hereby, are due and payable
within ten (10) days after demand, and if not paid within ten (10) days after
demand, shall bear interest at the Default Rate.
(o) Right to Make Advances. Upon a default, Noteholder may, at its
option, advance or disburse funds for the performance of any term, warranty,
covenant, condition, or obligation contained in any Loan Document. All sums
advanced or disbursed by Noteholder for performance of any such term, warranty,
covenant, condition or obligation shall bear interest at the Default Rate until
paid, shall be secured hereby, and held to be a prior charge to the lien of this
Deed of Trust upon foreclosure, and shall be paid by Grantor upon demand.
Failure to pay on demand shall constitute an Event of Default.
(p) Grantor's Estoppel Certificate. Grantor agrees that within
fifteen (15) days after a written request from Noteholder, it shall in writing
confirm to Noteholder or another designated by Noteholder (i) the amount
outstanding hereon and on the Note, (ii) the current rate of interest thereon,
(iii) whether Grantor claims any default by Noteholder under any of the Loan
Documents or knows of any facts which, with the passage of time or the giving of
notice, or both, would constitute such a default, (iv) any right of set off,
counterclaim or other defenses claimed by Grantor against such sums and the
obligations of the Note and this Deed of Trust, and (v) such other facts related
to the Loan as Noteholder may request.
(q) Zoning. Grantor covenants, represents and warrants that all
applicable zoning regulations affecting the Property permit the use and
occupancy of the Improvements.
(r) Taxes affecting Noteholder. Upon the passage after the date
hereof of any state, federal, municipal or other governmental law, order, rule
or regulation which changes or modifies the laws now in force governing the
taxation of deeds of trust or debts secured by deeds of trust or the manner of
collecting taxes so as to affect Noteholder adversely, Grantor shall pay all
such additional taxes or other assessments or levies which may be imposed by
such laws, rules, orders or regulations, and if Grantor is prevented by law from
paying such additional taxes, assessments or levies or does not pay same,
Noteholder may declare the Note and all sums due pursuant to any Loan Document
due and payable in full upon sixty (60) days prior written notice to Grantor.
Any payment of the Note required by this Section shall be without prepayment
premium, fee or penalty.
(s) No Credits. Grantor will not claim or demand or be entitled to
receive any credit or credits on the principal or interest payable under the
terms of the Note or on any other sums secured hereby, for so much of the taxes,
assessments or similar impositions assessed against the Property or any part
thereof as are applicable to the indebtedness secured hereby or to Noteholder's
interest in the Property. No deduction shall be claimed from the taxable value
of the Property or any part thereof by reason of the Note or this Deed of Trust.
2. LEASES AND RENTS.
(a) The assignments and grants of the Rents and Profits and Leases
contained in this Deed of Trust are absolute, unconditional and effective
immediately and shall continue in effect until the indebtedness secured by this
Deed of Trust is paid, but Noteholder and Trustees agree not to exercise their
rights hereunder except upon the occurrence of an Event of Default. Grantor
agrees to use the Rents in payment of principal and/or interest payable pursuant
to the Note, and in payment of all taxes, assessments, water rates, sewer rents
and other charges on or against the Real Property and Improvements and all
reasonable and necessary expenses associated with operation of the Improvements
prior to making any distribution of net cash flow.
(b) Grantor shall not enter into any Lease of the Property without
the prior written consent of Noteholder. Any Lease made in violation of the
terms of this paragraph may, at the option of Noteholder, be terminated by
notice to the tenant at any time after Noteholder becomes aware of the existence
of such lease. No delay in giving a notice of termination shall waive or
prejudice in any way Noteholder's right to terminate. Grantor shall furnish to
Noteholder original executed copies of all leases entered into or received by
Grantor. Additionally, Grantor shall send to Noteholder copies of all notices of
default sent to or received from tenants of Leases.
(c) Grantor agrees that it shall not, without the prior written
consent of Noteholder, (i) cancel, terminate or accept any surrender of the
Leases, (ii) accept any prepayments of installments of rent or other payments to
become due under any of the Leases for a period more than thirty (30) days in
advance, (iii) modify or abridge any of the terms, covenants or conditions of
any Lease, (iv) change any renewal privileges contained in any Lease, (v) change
the terms or cancel or terminate any guaranty of a Lease, (vi) consent to any
assignment of a Lease or any subletting under a Lease unless said subletting is
provided for in the Leases, or (vii) request, consent to, agree to or accept a
subordination of the Leases to any deed of trust or other encumbrances now or
hereafter affecting the Real Property, except to Noteholder or beneficiary of
any other subordinate deed of trust permitted under this Deed of Trust.
(d) Immediately upon the execution of this Deed of Trust, or at such
time as any Lease is executed, Grantor agrees to notify each tenant, with a copy
to the Noteholder, of the existence of the assignment of the Leases, Rents and
Profits.
(e) Grantor agrees that the Leases shall remain in full force and
effect irrespective of any merger of the interest of Grantor as lessor and any
permittee or lessee thereunder; and that it will not transfer or convey the
title to said premises to any of the permittees or lessees without requiring
such lessees, in writing, to assume and agree to pay the debt secured hereby in
accordance with the terms, covenants and conditions of the Note and Deed of
Trust.
(f) Grantor irrevocably directs all tenants under all Leases, upon
demand and notice from Noteholder of an Event of Default, to (i) deliver to
Noteholder an estoppel certificate in form reasonably acceptable to Noteholder,
and (ii) pay to Noteholder all Rents accruing or due under any Lease from and
after the receipt of such demand and notice. Tenants, in making such payments to
Noteholder, shall be under no obligation to inquire into or determine the actual
existence of any Event of Default claimed by Noteholder.
(g) Grantor represents and warrants that (i) it shall duly and
punctually perform all the material terms, conditions and covenants of all the
Leases on its part to be kept, observed and performed; (ii) except pursuant to
the Loan Documents, it has not executed any prior assignment, transfer, mortgage
or pledge of any of the Leases and Rents and Profits; (iii) it shall not sell,
assign, transfer, mortgage or pledge any of the Leases and Rents and Profits to
any person, firm or corporation, except pursuant to the Loan Documents; (iv) no
Rents and Profits becoming due subsequent to the date hereof have been collected
for more than one month in advance, nor has payment of any Rents and Profits
been anticipated, waived, released, discounted, or otherwise discharged or
compromised; (v) it will enforce, enjoin and restrain the violation of any of
the terms, provisions and conditions of any of the Leases; (vi) it will promptly
send to Noteholder copies of all notices of default which Grantor shall send or
receive under the Leases; (vii) it will appear in and defend any action or
proceeding arising under or in any manner connected with the Leases or with the
obligations and undertakings of Grantor or the tenants thereunder; and (viii)
the Leases are in full force and effect and there are no defaults thereunder by
the parties thereto nor, to the best of its knowledge, has any event occurred
which but for the notice of or lapse of any applicable cure period or both would
constitute an event of default under the Leases. Grantor agrees to act in good
faith to enforce or secure the performance of each and every material
obligation, covenant, condition and agreement to be performed for their benefit
by any tenants under the Leases.
(h) Grantor agrees to execute and deliver to Noteholder, at any time
or times during which this Deed of Trust shall be in effect, such further
instruments as Noteholder may deem reasonably necessary to make effective the
assignment of the Rents and Profits and Leases and the covenants of Grantor
herein contained.
(i) Nothing contained in this Deed of Trust and no entry by
Noteholder upon the Real Property as hereinabove provided shall be construed as
to constitute Noteholder as a mortgagee in possession.
(j) Noteholder acknowledges that Grantor currently has granted a
license to the Property to Virginia Concessions, L.L.C. Noteholder acknowledges
and agrees that certain provisions of such license may result in Grantor
breaching a provision of this Deed of Trust and that such breach is not an Event
of Default.
3. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall be an event of default hereunder (an "Event of Default"):
(a) Monetary Default. (i) If any payment of any sum due under the
Note is not paid within ten (10) days of the date due, (ii) if Grantor fails to
pay all amounts due on the Note on its maturity date or such earlier date to
which the maturity of the Note shall have been accelerated; or (iii) if any sum
due pursuant to this Deed of Trust or any other Loan Document is not paid within
ten (10) days of the date due;
(b) Breach of Covenants. Other than monetary defaults covered by
Subparagraph 3(a), if Grantor fails to observe or perform any term, covenant,
condition, or agreement contained in this Deed of Trust or in any other Loan
Document and such failure is not cured within thirty (30) days of receipt of
notice from Noteholder.
(c) Breach of Representation or Warranty. If any representation or
warranty of Grantor contained in this Deed of Trust or in any other Loan
Document is untrue or misleading in any material respect when made;
(d) Inability to Pay Debts When Due. If Grantor shall at any time
be unable or shall fail to pay its debts when due or admits in writing its
inability to pay its debts when due;
(e) Voluntary Proceedings. If Grantor shall file a voluntary
petition in bankruptcy or shall be adjudicated insolvent or bankrupt, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for any
present or future federal, state, or other statute, law or regulation relating
to bankruptcy, insolvency or other relief for debtors, or if Grantor shall seek
or consent to or acquiesce in the appointment of any trustee, receiver or
liquidator for it or of all or any substantial part of the properties owned by
it or of the Property, or shall make any general assignment for the benefit of
creditors;
(f) Involuntary Proceedings. If a petition shall be filed against
Grantor seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future federal,
state, or other statute, law or regulation, and shall remain undismissed for
sixty (60) days after filing, or if any trustee, receiver or liquidator of
Grantor, or of all or any substantial part of the properties owned or of the
Property shall be appointed without its consent or acquiescence and such
appointment shall not be discharged within sixty (60) days;
(g) Liens. If any lien or claim not otherwise permitted hereunder,
whether alleged to be superior or junior to the lien of this Deed of Trust, any
federal tax lien or claim or mechanics' or materialmen's lien be recorded or
filed against Grantor or the Property and not be removed by payment or bond
within ten (10) days from such filing or contested in the manner as provided in
Sections 1(d) or (g) hereof;
(h) Judgment. If after the date hereof any final judgment or decree
for the payment of money in an amount greater than $100,000 is entered against
Grantor, all applicable periods for appeal have terminated, and such judgment or
decree is not satisfied with fifteen (15) days thereafter;
(i) Modification or Termination of Organizational Status. If the
organizational status of Grantor, if Grantor is an entity, is terminated or
modified without Noteholder's prior written consent, except as permitted herein,
without Noteholder's prior written consent, or if Grantor is dissolved, whether
voluntarily or by operation of law unless a successor entity to Grantor assumes
all of Grantor's obligations to Noteholder under the Note and this Deed of Trust
in writing or by operation of law;
(j) Loss of License. If Grantor or any operator of the Project loses
its license to operate the Project and all appeal periods have lapsed.
(k) Other Events. Any occurrence or breach which is specified in
this Deed of Trust or any other Loan Document to be an "Event of Default".
4. REMEDIES OF NOTEHOLDER. Noteholder shall have, but shall not be limited
to, the following remedies upon the occurrence of an Event of Default, which
remedies are distinct and cumulative to any other right or remedy under this
Deed of Trust or afforded at law or equity or by contract, and may be exercised
concurrently, independently or successively with all other available remedies:
(a) Foreclosure. Upon any Event of Default, Noteholder may, at its
option and without further notice except as may be required by law or herein,
declare the Note and all other sums secured hereby or otherwise due pursuant to
the Loan Documents immediately due and payable, including any prepayment
premium, and shall have the right to have the Trustees take possession of the
Property and proceed to sell the Property at public auction, as a whole or in
such parcels, for cash or credit and, in addition to the requirements imposed by
state law, upon any terms as the Trustees deem appropriate. Before such sale at
public auction is made, there shall first be advertisement of the time, place
and terms of sale at least once a week for four (4) successive weeks in a
newspaper published or having a general circulation in the City of Hampton,
Virginia. At least fourteen (14) days prior to such sale, or in the event that
such sale is postponed, any subsequent sale, written notice of the time, place
and terms of sale shall be given by certified or registered mail to the Grantor
at its address for notice as provided below. Noteholder may become the purchaser
of the Property so sold, and no purchaser shall be required to see to the proper
application of the purchase money. The proceeds of any such sale shall be
applied as required by Section 55-59.4 of the Code of Virginia of 1950, as
amended in effect on the date hereof.
(b) Possession. Subject to the rules of the Virginia Racing
Commission governing licensure of race tracks, immediately upon the occurrence
of an Event of Default, Noteholder, its agents or attorneys-in-fact or the
Trustees, at the request of Noteholder, are authorized to enter and take
possession of the Real Property by actual physical possession or by written
notice served personally upon or sent by registered or certified mail, postage
prepaid, to Grantor, as Noteholder may elect, and Grantor shall surrender
possession upon request and Noteholder may take possession without further
authorization required. Following any such entry or taking of possession,
Noteholder may, either itself or through its agents:
(i) manage and operate the Property or any part thereof;
(ii) lease, sublease or assign existing Leases of all or any
part or parts of the Real Property for such periods of time and upon such terms
and conditions as Noteholder may deem proper;
(iii) enforce, cancel or modify any of the Leases;
(iv) demand, collect, ▇▇▇ for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and releases for,
all Rents and Profits that may then or thereafter become due, owing or payable
with respect to the Real Property or any part thereof, from any present or
future lessees, tenants, subtenants or occupants thereof;
(v) institute, prosecute to completion or compromise and
settle all summary proceedings and actions for rent or for removing any and all
lessees, tenants, subtenants or occupants of the Real Property or any part or
parts thereof;
(vi) enforce, enjoin or restrain the violation of any of the
terms, provisions and conditions of any of the Leases;
(vii) make such repairs and alterations to the Real Property
as Noteholder may, in its reasonable discretion, deem proper;
(viii) pay from and out of the Rents and Profits collected or
from or out of any other funds of Grantor in its possession any insurance
premiums, any taxes, assessments, water rates, sewer rates, or other
governmental charges levied, assessed or imposed against the Real Property or
any portion thereof, and any other charges, costs or expenses which Noteholder
deems necessary or advisable for it to pay in the management or operation of the
Real Property, including, without limitation, the fees and costs of its agents,
the costs of repairs and alterations necessary to maintain the Real Property in
a first-class condition or to lease the Real Property to another, commissions
for renting the Real Property or any portions thereof, and legal expenses in
enforcing claims, preparing papers or for any other services that may be
required; and
(ix) generally perform any other act, deed, matter or thing
whatsoever that ought to be performed in and about or with respect to the Real
Property as fully as Grantor might do.
After payment of proper costs and charges (including any payment owing to
Noteholder pursuant to the provisions of paragraph 5(q) hereof and a reasonable
commission to any agents engaged by Noteholder), Noteholder shall apply the net
amounts of any Rents and Profits received by it from the Real Property to the
payment of the indebtedness due and owing pursuant to or secured by the Deed of
Trust, in such order as Noteholder shall elect. The power granted in this
paragraph is coupled with an interest, and is irrevocable.
(c) Receiver. Upon an Event of Default, Noteholder, to the extent
permitted by law and without regard to the value or adequacy of its security,
shall be entitled as a matter of right to the appointment of a receiver to enter
upon and take possession of the Property and to collect all rents, revenues,
issues, income, and profits thereof and apply the same as the court may direct.
The receiver shall have all rights and powers permitted under the laws of
Virginia and such other powers as the court making such appointment shall
confer. The expenses, including receivers' fees, reasonable attorneys' fees,
costs and agents' compensation, incurred pursuant to the powers herein contained
shall be secured by this Deed of Trust. The right to enter and take possession
of and manage and operate the Property, and to collect the rents, issues and
profits thereof, whether by receiver or otherwise, shall be cumulative with any
other right or remedy hereunder or afforded by law, and may be exercised
concurrently therewith or independently thereof. Noteholder and Trustees shall
be liable to account only for such rents, issues and profits as they may
actually receive, whether from the receiver or pursuant to other provisions of
the applicable Loan Documents. Notwithstanding the appointment of any receiver
or other custodian, Noteholder shall be entitled as secured party hereunder and
under other applicable security agreement provisions of the Loan Documents to
the possession and control of any cash, deposits or instruments at the time held
by or payable or deliverable under the terms of any Loan Document to Noteholder.
(d) Injunction. In addition to any other remedies Noteholder may
have under this Deed of Trust, the Note, or any applicable law, Noteholder may
seek from a court of competent jurisdiction a mandatory injunction requiring
Grantor to take such action as shall be necessary to comply with its covenant to
maintain the Real Property.
5. MISCELLANEOUS.
(a) Further Rights and Duties of Trustees. Trustees shall be under
no duty to take any action hereunder except as expressly required, to perform
any act which would involve them in expense or liability, or to institute or
defend any suit in respect hereof, unless properly indemnified to their
satisfaction. All reasonable expenses, charges, counsel fees and other
disbursements incurred by Trustees in and about the administration and execution
of the trust created hereby, and the performance of their duties and powers
hereunder shall be secured by this Deed of Trust prior to the indebtedness
represented by the Note, and shall bear interest at the Default Rate. Both
Trustees or either of them may exercise all the rights and powers of the
Trustees hereunder. Noteholder, with or without cause, is hereby authorized and
empowered to substitute and appoint, from time to time, by an instrument
recorded wherever this Deed of Trust is recorded, a trustee in the place of any
Trustee hereunder.
(b) Actions by the Noteholder. Without affecting, modifying,
altering, releasing or limiting the liability of Grantor or any person who is or
may become liable on the Note or who has endorsed or assumed the obligation of
the Note, and without affecting, modifying, altering, releasing or limiting the
lien of this Deed of Trust or any of the other security for the Note, it is
agreed that the following actions may take place at the option of Noteholder
without further notice or consent: (i) the Note may be extended or renewed at
any time, notwithstanding the fact that any extensions or renewals may be for a
period or periods in excess of the original term thereof; (ii) any security for
the Note may be released; (iii) any one or more parties who are or may become
liable on the Note or who have endorsed or assumed the obligation of the Note
may be released; (iv) any indulgence or forbearance whatsoever regarding the
Note may be granted; and (v) Noteholder may fail to act with diligence or may
delay in the collection or enforcement thereof.
(c) Rights and Remedies Cumulative. The rights and remedies arising
under and contained in this Deed of Trust shall be separate, distinct and
cumulative, and none of them shall be in exclusion of any other. All remedies
arising under or contained in this Deed of Trust shall be in addition to every
other remedy now or hereafter existing at law or in equity or by statute.
Neither any course of dealing by the Trustees or Noteholder nor any failure or
delay on their or its part to exercise any right, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
(d) Subrogation. To the extent of the indebtedness of Grantor to
Noteholder secured hereby, Noteholder is hereby subrogated to the lien or liens
and to the rights of the owners and holders of each and every mortgage, deed of
trust, lien, or other encumbrance on the Property which is paid, in whole or in
part, by the proceeds of the Loan, and the respective liens of said mortgages,
deeds of trust, liens, or other encumbrances, shall be and the same and each of
them hereby is preserved and shall pass to and be held by Noteholder herein as
security for the indebtedness to Noteholder to the same extent that it would
have been preserved and would have been passed to and have been held by
Noteholder had it been duly and regularly assigned, transferred, set over, and
delivered unto Noteholder by separate deed of assignment, notwithstanding the
fact that the same may be satisfied and cancelled of record.
(e) Assignment of Note. Upon every assignment of the Note, the
transferring holder of the Note shall have the right to pay over the balance of
any escrow deposits in its possession to the assignee of the Note. The
transferring holder of the Note shall thereupon be completely released from all
liability with respect to such escrow deposits transferred, and Grantor shall
look solely to the transferee with respect thereto. Upon full payment of the
Note and the indebtedness secured hereby (or at any prior time at the election
of the then holder of the Note), the balance of the escrow deposits in
Noteholder's possession shall be paid over to the record owner of the Property
within fifteen days (15) of the time of payment and no other party shall have
the right or claim thereto in any event.
(f) Time of Essence. Time is of the essence with respect to the
performance by Grantor of all of its obligations under this Deed of Trust and
the other Loan Documents.
(g) Jury Trial. Grantor hereby waives the right to demand a jury
trial in the event Grantor files any affirmative defense or counterclaim in any
judicial proceeding on this Deed of Trust or the Note secured hereby or in the
event Grantor institutes legal proceedings under this Deed of Trust and/or the
Note.
(h) Choice of Law. This Deed of Trust shall be governed by and
construed in accordance with the substantive laws of the Commonwealth of
Virginia, without reference to the conflicts laws or principles of such
Commonwealth that would apply the law of any other jurisdiction.
(i) Successors and Assigns. All of the grants, covenants, terms,
provisions, and conditions herein shall run with the land and shall apply to,
bind, and inure to the benefit of the successors and assigns of Grantor and the
successors and assigns of Noteholder. No provision of this paragraph shall be
construed or shall operate to permit a sale or transfer of the Property except
in strict accordance with the terms of this Deed of Trust.
(j) Construction of this Deed of Trust. Except as otherwise herein
expressly provided, this Deed of Trust shall be construed to impose and confer
upon the parties hereto, including the Noteholder, all duties, rights and
obligations as set forth in Sections 55-59, 55-59.1, 55-59.2, 55-59.3, 55-59.4
and 55-60 of the Code as now in force and further to incorporate herein the
following provisions by short form reference below, of Sections 55-59.2 and
55-60 of the Code:
Renewal, extension or reinstatement permitted. Bidder's deposit of
not more than 10% of the sale price may be required.
(k) Notices. All notices required or contemplated hereunder or in
the Note shall be in writing, and shall be deemed to have been given properly
when actually received, or on the second business day after deposit in the
United States mail, postage prepaid, certified or registered, return receipt
requested, or on the second business day following acceptance for overnight
delivery by Federal Express or another comparable overnight express delivery
service, addressed as follows:
Noteholder: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Grantor: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Hirschler, Fleischer,
▇▇▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (23219)
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other persons as Noteholder, or Grantor may request by notice given
as provided above, or to such other address as any intended recipient of notice
may direct by notice given as provided above.
(l) Conflicting Terms. If there is any conflict or inconsistency
between the provisions of the Commitment and the provisions of any Loan
Document, the provisions of the applicable Loan Document shall control. If there
is any conflict or inconsistency between the provisions of this Deed of Trust
and the provisions of any other Loan Document, the provisions of this Deed of
Trust shall control.
(m) Captions. The paragraph headings contained herein are inserted
for convenience only, and shall not be deemed a part of or construed to affect
the context of this Deed of Trust.
(n) Savings Clause. If any term or provision of this Deed of Trust
or an application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Deed of Trust or the
application of such term or provision to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Deed of Trust shall be
valid and enforceable to the fullest extent permitted by law.
(o) Terms. Any terms not defined herein shall have the meanings as
defined in the Note or other Loan Documents.
(p) Indemnification of Noteholder. Grantor agrees to indemnify,
defend and hold Noteholder and Trustees harmless from and against any and all
liability, loss, damage and expense, including reasonable attorneys' fees, which
they may incur under any of the Leases, by reason of this Deed of Trust or by
reason of any action taken by Noteholder or Grantor or Trustees hereunder, and
from and against any and all claims and demands whatsoever which may be asserted
against Noteholder or Trustees by reason of any alleged obligation or
undertaking on its part to perform or discharge any of the terms, covenants or
conditions contained in any of the Leases, unless caused by the gross negligence
or willful misconduct of Noteholder or the Trustees. Should Noteholder or the
Trustees incur any such liability, loss, damage or expense, the amount thereof,
together with interest thereon at the Default Rate, shall be secured by this
Deed of Trust and shall be payable by Grantor to Noteholder within ten (10) days
after demand therefor; or at the option of Noteholder, Noteholder may reimburse
itself therefor out of any Rents and Profits collected by it pursuant to
paragraph 4(b) this Deed of Trust. Nothing contained in this Deed of Trust shall
operate or be construed to obligate Noteholder to perform any of the terms,
covenants or conditions contained in any of the Leases or otherwise to impose
any obligation upon Noteholder with respect to any of the Leases. This Deed of
Trust shall not operate to place upon Noteholder any responsibility for the
operation, control, care, management or repair of the Real Property prior to
Noteholder taking possession thereof, and the execution of this Deed of Trust by
Grantor shall constitute conclusive evidence that all responsibility for the
operation, control, care, management and repair of the Real Property prior to
Noteholder taking possession thereof is and shall be that of Grantor.
(q) Paralegal Fees. All references herein to legal fees shall
include the fees and expenses of paralegals.
IN WITNESS WHEREOF, effective as of the day and year first written above,
Grantor has executed these presents under seal.
GRANTOR: COLONIAL DOWNS, L.P.,
a Virginia limited partnership
By: STANSLEY RACING CORP.,
General Partner
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Operating Officer
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF NEW KENT :
I certify that the foregoing instrument was executed and acknowledged
before me this 4th day of September, 1998, by ▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Operating
Officer, of Stansley Racing Corp., General Partner of Colonial Downs, L.P., a
Virginia limited partnership, on behalf of said corporation in its capacity as
general partner of said partnership.
My commission expires 8-31-99.
/s/ ▇▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇▇▇
Notary Public
EXHIBIT A
LEGAL DESCRIPTION
ALL THOSE certain pieces of parcels of land, situate, lying and being in the
City of Hampton, Virginia, containing in the aggregate 4.880 Acres, identified
as "Parcel F 4.730 Acres" and "Parcel G 0.150 Acres", all as shown on that
certain plat entitled, "PLAT OF 2 PARCELS OF LAND OWNED BY THE WALNUT HOMES
COMPANY AND THE CITY OF HAMPTON, VIRGINIA, CITY OF HAMPTON VIRGINIA", dated
December 11, 1996, prepared by Resource International, Ltd., Environmental
Consultants & Designers, Ashland, Virginia.
SUBJECT, HOWEVER, to any and all restrictions, conditions, rights-of-way or
agreements of record.
Being the same land conveyed by deed by and between Walnut Homes Co., L.C., a
Virginia limited liability company (formerly Walnut Homes Co., a Virginia
limited partnership and Walnut Homes Co., a Virginia general partnership),
Grantor, party of the first part and Colonial Downs, L.P., a Virginia limited
partnership, Grantee, party of the second part as recorded in the Hampton
Circuit Court, Deed Book 1198, Page 1926.
EXHIBIT B
PERMITTED ENCUMBRANCES
1. (a) As to the City of Hampton: Taxes subsequent to 1998, not yet
due and payable.
Place of Record: Clerk's Office of the
Circuit Court of the City
of Hampton, Virginia
Date of Deed of Trust August 26, 1998
Deed Book 016899, Page B1255P0388
Name of Grantor: Colonial Downs, L.P.
Name of Trustees: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name of Original Payee: Colonial Downs Holdings, Inc.
Original Amount Secured: $1,000,000
FOR VALUE RECEIVED, Colonial Downs Holdings, Inc., the original payee and
holder by delivery of the above-mentioned Note secured by the above-mentioned
Deed of Trust and the said Deed of Trust does hereby convey, set over, and
assign unto CD Entertainment Ltd. all of its right, title, and interest in and
to said Note and the said Deed of Trust this 26th day of August, 1998.
Colonial Downs Holdings, Inc.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Operating Officer
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF NEW KENT:
I certify that the foregoing instrument was executed and acknowledged
before me this 12th day of November, 1998, by ▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Operating
Officer of Colonial Downs Holdings, Inc., a Virginia corporation, on behalf of
said corporation.
My commission expires: May 31, 2000
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Notary Public