EXHIBIT 10.16
AMENDMENT TO DEED OF TRUST
ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
DATED JULY 31, 2002
This Amendment is Dated as of August 29, 2003
in the amount of $800,000 which, when combined with the
original amount secured by the Deed of Trust amended
hereby, results in a total amount secured of $8,142,000.00
among CONCORDE CRIPPLE CREEK, INC.,
a Colorado corporation (the "Grantor") and
THE PUBLIC TRUSTEE OF ▇▇▇▇▇▇ COUNTY
(the "Trustee") and
FIRST NATIONAL BANK, RAPID CITY, SOUTH DAKOTA,
as the Lender herein named (the "Beneficiary")
LOCATION OF PREMISES:
Blackhawk, Colorado
Recording requested by and after recording, please return to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
1400 AT&T Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
This instrument was prepared by the above-named attorney.
AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THE MAXIMUM AMOUNT SECURED BY THE DEED OF TRUST AS AMENDED HEREBY IS
$8,142,00.00, TOGETHER WITH INTEREST THEREON AND OTHER AMOUNTS HEREIN
DESCRIBED. INTEREST ON THE AMOUNT SECURED HEREBY MAY FLUCTUATE FROM
TIME TO TIME.
THIS AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING ("AMENDMENT") is entered into this 29th day of
August, 2003, by and between: FIRST NATIONAL BANK, having its offices at ▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ("LENDER"); CONCORDE CRIPPLE
CREEK, INC., a Colorado corporation, having its office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ("GRANTOR" OR "BORROWER"); and the
PUBLIC TRUSTEE OF ▇▇▇▇▇▇ COUNTY (the "TRUSTEE").
RECITALS
On or about July 31, 2002, Lender and Borrower, as well as certain named
Guarantors and, as to the Deed of Trust, Trustee, entered into the following
agreements:
(a) Loan Agreement;
(b) Promissory Note;
(c) Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing (also entered into by the Public Trustee of ▇▇▇▇▇▇
County [the "TRUSTEE"]), which was recorded in the official records of
the County of ▇▇▇▇▇▇, Colorado, on August 2, 2002, in Book 766, Page
233 (the "DEED OF TRUST"), affecting the property described in Exhibit
A hereto;
(d) Other documents in connection with the foregoing, including, without
limitation, certain Guaranties, a Subordination Agreement, and other
related documents, all of which, together with the foregoing, will
collectively be referred to herein as the "LOAN DOCUMENTS." The
indebtedness and obligations created and memorialized by the Loan
Documents will be referred to herein as the "LOAN."
The original purpose of the Loan was to provide funds for use by Borrower in
constructing certain improvements on and to the Premises. However, Borrower has
requested Lender to advance additional funds to Borrower to enable completion of
the construction. Lender has agreed to advance such additional funds, in
consideration for which the parties hereto have agreed to this Amendment to
amend the Deed of Trust to reflect the increased Maximum Amount secured thereby,
in connection with which Borrower and Lender have executed a Loan Modification
Agreement (the "MODIFICATION AGREEMENT") of even date herewith. The Modification
Agreement, among other things, increases the principal balance of the Loan and
the
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Note as set forth above, and the term "OBLIGATIONS" is hereby modified to refer
to such increased principal amount.
AGREEMENT
In consideration of the mutual covenants set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, the Deed of Trust is hereby amended, as set forth
below. Other than as specifically modified herein, all terms and conditions of
the Deed of Trust remain in full force and effect.
ARTICLE 1. GRANT
[THERE IS NO AMENDMENT TO THIS ARTICLE]
ARTICLE 2. OBLIGATIONS SECURED
The following portions of Article 2 of the Deed of Trust are hereby Amended to
state as follows:
2.1 OBLIGATIONS SECURED. Grantor makes this Deed of Trust for the purpose
of securing the following obligations (collectively, the "Obligations"):
(a) Payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including
payment of amounts that would become due but for the operation of the
automatic stay under Section 362 (a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a)), of. (i) the principal sum which is, at any time, advanced
and unpaid under the Loan (as defined in the Loan Agreement), not to exceed
Eight Million One Hundred Forty Two Thousand and No/100 Dollars
($8,142,000.00) at any one time; (ii) interest and other charges accrued on
said principal sum, or accrued on interest and other charges then
outstanding under the Loan (all including, without limitation, interest and
other charges that would accrue on such obligations, but for the filing of
a petition in bankruptcy with respect to Grantor); and (iii) any other
obligations of Grantor under the Note referred to below; all according to
the terms of that certain Promissory Note dated concurrently herewith made
by Grantor and payable to the order of First National Bank, Rapid City,
South Dakota (herein referred to as either the "Lender" or the
"Beneficiary"), according to the terms and provisions of said Note, and all
renewals, extensions, amendments, restatements, replacements, substitutions
and other modifications thereof (hereinafter collectively referred to as
the "Note").
All other portions of Article 2 of the Deed of Trust remain in force as stated
in the Deed of Trust.
ARTICLE 3. ASSIGNMENT OF LEASE AND PAYMENTS
[THERE IS NO AMENDMENT TO THIS ARTICLE]
ARTICLE 4. SECURITY AGREEMENT AND FIXTURE FILING
The following portions of Article 4 of the Deed of Trust are hereby Amended to
state as follows:
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4.2 FIXTURE FILING.
As to all of the above described Personal Property which is or
which hereafter becomes a "fixture" under applicable law, this Deed of
Trust constitutes a fixture filing under Section 4-9-502 of the
Colorado UCC, as it may be amended or recodified from time to time.
The address of Beneficiary from which information may be obtained
concerning the security interest granted hereunder and the mailing
address of Grantor are as follows:
Beneficiary: First National Bank, Rapid City, South Dakota
as the Lender herein named
▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Branch President
Grantor: Concorde Cripple Creek, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, President
Tax ID No. ▇▇-▇▇▇▇▇▇▇
All other portions of Article 4 of the Deed of Trust remain in force as stated
in the Deed of Trust.
ARTICLE 5. PROTECTION OF SECURITY OF DEED OF TRUST; RELEASE
[THERE IS NO AMENDMENT TO THIS ARTICLE]
ARTICLE 6. RIGHTS AND DUTIES OF THE PARTIES
The following portions of Article 6 of the Deed of Trust are hereby Amended to
state as follows:
6.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF GRANTOR. Grantor represents,
warrants and covenants that:
(a) This Deed of Trust, as amended hereby, continues to create a first
priority mortgage lien and/or, to the extent applicable, a first priority
security interest on the Real Property and all of the Property which is in
addition to the Real Property, subject only to Permitted Encumbrances (as
defined in the Loan Agreement).
6.2 PAYMENT OF OBLIGATIONS. Grantor shall pay when due, or cause to be
paid when due: (i) the principal of, and interest on, the indebtedness evidenced
by the Note as increased by the Modification Agreement; (ii) all charges, fees
and other sums as provided in the Loan Documents (as defined in the Loan
Agreement) including, without limitation, all increases by virtue of the
Modification Agreement, all reasonable costs, fees and expenses of this Deed of
Trust incurred by Beneficiary in connection with any Default; (iii) the
principal of, and interest on, any future advances secured by this Deed of
Trust; and (iv) the principal of, and interest on, any other indebtedness
secured by this Deed of Trust.
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All other portions of Article 6 of the Deed of Trust remain in force as stated
in the Deed of Trust.
ARTICLE 7. DEFAULT PROVISIONS
[THERE IS NO AMENDMENT TO THIS ARTICLE]
ARTICLE 8. MISCELLANEOUS PROVISIONS
[THERE IS NO AMENDMENT TO THIS ARTICLE]
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS MODIFICATION AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER
TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT CAN BE LEGALLY
ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the day and
year set forth above.
GRANTOR
CONCORDE CRIPPLE CREEK, INC.,
a Colorado corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Its: President
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EXHIBIT A
LEGAL DESCRIPTION
Parcel A:
Parcel W - 11,
Golden Gates Minor Subdivision,
as shown on Plat recorded October 11, 2000, in Book 70.4, Page ▇▇▇, ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ of Colorado.
Parcel B:
▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Garage, a Condominium,
According to the Condominium Declaration recorded June 12, 2002, in Book 760,
Page 21, Reception No. 112969, in the records of the Clerk and Recorder of the
County of ▇▇▇▇▇▇, State of Colorado, and according to the Condominium Map
recorded June 12, 2002, in Book 760, Page 85, Reception No. 112970, in the
records of the Clerk and Recorder of the County of ▇▇▇▇▇▇, State of Colorado,
County of ▇▇▇▇▇▇, State of Colorado.
Parcel C:
▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Garage, a Condominium,
According to the Condominium Declaration recorded June 12, 2002, in Book 760,
Page 21, Reception No. 112969, in the records of the Clerk and Recorder of the
County of ▇▇▇▇▇▇, State of Colorado, and according to the Condominium Map
recorded June 12, 2002, in Book 760, Page 85, Reception No. 112970, in the
records of the Clerk and Recorder of the County of ▇▇▇▇▇▇, State of Colorado,
County of ▇▇▇▇▇▇, State of Colorado.
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