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EXHIBIT 10.3
CONSTRUCTION LOAN AGREEMENT
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PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL / COLL ACCOUNT OFFICER INITIALS
$4,000,000.00 03-28-2003 04-30-2006 55032 6001 360
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item. Any item above containing "* * *" has been omitted due to text length limitations.
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BORROWER: NORTH & SOUTH ASPEN, LLC (TIN: ▇▇-▇▇▇▇▇▇▇) LENDER: WESTSTAR BANK
SARDY HOUSE, LLC (TIN: ▇▇-▇▇▇▇▇▇▇) ASPEN ▇▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
THIS CONSTRUCTION LOAN AGREEMENT dated March 28, 2003, is made and executed
between North & South Aspen, LLC; and Sardy House, LLC ("Borrower") and WestStar
Bank ("Lender") on the following terms and conditions. Borrower has applied to
Lender for one or more loans for purposes of constructing the Improvements on
the Real Property described below. Lender is willing to lend the loan amount to
Borrower solely under the terms and conditions specified in this Agreement and
in the Related Documents, to each of which Borrower agrees. Borrower understands
and agrees that: (A) In granting, renewing, or extending any Loan, Lender is
relying upon Borrower's representations, warranties, and agreements as set forth
in this Agreement, and (B) all such Loans shall be and remain subject to the
terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of March 28, 2003, and shall continue
in full force and effect until such time as all of Borrower's Loans in favor of
Lender have been paid in full, including principal, interest, costs, expenses,
attorneys' fees, and other fees and charges, or until April 30, 2006.
LOAN. The Loan shall be in an amount not to exceed the principal sum of U.S.
$4,000,000.00 and shall bear interest on so much of the principal sum as shall
be advanced pursuant to the terms of this Agreement and the Related Documents.
The Loan shall bear interest on each Advance from the date of the Advance in
accordance with the terms at the Note. Borrower shall use the Loan Funds solely
for the payment of: (A) the costs of constructing the improvements and equipping
the Project in accordance with the Construction Contract; (B) other costs and
expenses incurred or to be incurred in connection with the construction of the
Improvements as Lender in its sole discretion shall approve; and (C) if
permitted by Lender, interest due under the Note, including all expenses and all
loan and commitment fees described in this Agreement. The Loan amount shall be
subject at all times to all maximum limits and conditions set forth in this
Agreement or in any of the Related Documents, including without limitation, any
limits relating to loan to value ratios and acquisition and Project costs.
PROJECT DESCRIPTION. The word "Project" as used in this Agreement means the
construction and completion of all Improvements contemplated by this Agreement,
including without limitation the erection of the building or structure on the
Real Property identified to this Agreement by Borrower and Lender, installation
of equipment and fixtures, landscaping, and all other work necessary to make the
Project usable and complete for the intended purposes. The Project includes the
following work:
RENOVATION OF EXISTING STRUCTURE, SEC REGISTRATION AND MARKETING.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 2
The word "Property" as used in this Agreement means the Real Property together
with all Improvements, all equipment, fixtures, and other articles of personal
property now or subsequently attached or affixed to the Real Property, together
with all accessions, parts, and additions to, all replacements of, and all
substitutions for any of such property, and all proceeds (including insurance
proceeds and refunds of premiums) from any sale or other disposition of such
property. THE REAL ESTATE DESCRIBED BELOW CONSTITUTES THE REAL PROPERTY AS USED
IN THIS AGREEMENT.
THE REAL ESTATE LEGALLY DESCRIBED AS:
All of Lots P, Q, R and S and Lots F, G, H and I less the
Northerly 75 feet thereof and that part of the vacated alley
bounded by the extension of the Easterly lot lines of Lots I
and S and the Westerly lot lines of Lots F and P, all in ▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ at Pitkin, State of
Colorado,
ITS ADDRESS IS COMMONLY KNOWN AS:
Real Property located at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
FEES AND EXPENSES. As a condition of Lender making the Loan, Borrower agrees to
pay the following fees, charges, and expenses, in addition to all others set
forth in this Agreement: Origination $40,000.00. Whether or not the Project
shall be consummated, Borrower shall assume and pay upon demand all
out-of-pocket expenses incurred by Lender in connection with the preparation of
loan documents and the making of the Loan, including without limitation the
following: (A) all closing costs, loan fees, and disbursements; (B) all expenses
of Lender's legal counsel; and (C) all title examination fees, title insurance
premiums, appraisal fees, survey costs, required fees, and filing and recording
fees.
NO CONSTRUCTION PRIOR TO RECORDING OF SECURITY DOCUMENT. Borrower will not
permit any work or materials to be furnished in connection with the Project
until (A) Borrower has signed the Related Documents; (B) Lender's mortgage or
deed of trust and other Security Interests in the Property have been duly
recorded and perfected; (C) Lender has been provided evidence, satisfactory to
Lender, that Borrower has obtained all insurance required under this Agreement
or any Related Documents and that Lender's liens on the Property and
Improvements are valid perfected first liens, subject only to such exceptions,
if any, acceptable to Lender.
MULTIPLE BORROWERS. This Agreement has been executed by multiple obligors who
are referred to in this Agreement individually, collectively and interchangeably
as "Borrower." Unless specifically stated to the contrary, the word "Borrower"
as used in this Agreement, including without limitation all representations,
warranties and covenants, shall include all Borrowers. Borrower understands and
agrees that, with or without notice to any one Borrower, Lender may (A) make one
or more additional secured or unsecured loans or otherwise extend additional
credit with respect to any other Borrower; (B) with respect to any other
Borrower alter, compromise, renew, extend, accelerate, or otherwise change one
or more times the time for payment or other terms of any indebtedness, including
increases and decreases of the rate of interest on the indebtedness; (C)
exchange, enforce, waive, subordinate, fail or decide not to perfect, and
release any security, with or without the substitution of new collateral; (D)
release, substitute, agree not to ▇▇▇, or deal with any one or more of
Borrower's or any other Borrower's sureties, endorsers, or other guarantors on
any terms or in any manner Borrower may choose; (E) determine how, when and what
application of payments and credits shall be made on
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 3
any indebtedness; (F) apply such security and direct the order or manner of sale
of any Collateral, including without limitation, any non-judicial sale permitted
by the terms of the controlling security agreement or deed of trust, as Lender
in its discretion may determine; (G) sell, transfer, assign or grant
participations in all or any part of the Loan; (H) exercise or refrain from
exercising any rights against Borrower or others, or otherwise act or refrain
from acting; (I) settle or compromise any indebtedness; and (J) subordinate the
payment of all or any part of any of Borrower's indebtedness to Lender to the
payment of any liabilities which may be due Lender or others.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any indebtedness exists:
ORGANIZATION. North & South Aspen, LLC is a limited liability company
which is, and at all times shall be, duly organized, validly existing,
and in good standing under and by virtue of the laws of the State of
Colorado. North & South Aspen, LLC is duly authorized to transact
business in all other states in which North & South Aspen, LLC is doing
business, having obtained all necessary filings, governmental licenses
and approvals for each state in which North & South Aspen, LLC is doing
business. Specifically, North & South Aspen, LLC is, and at all times
shall be, duly qualified as a foreign limited liability company in all
states in which the failure to so qualify would have a material adverse
effect on its business or financial condition. North & South Aspen, LLC
has the full power and authority to own its properties and to transact
the business in which it is presently engaged or presently proposes to
engage. North & South Aspen, LLC maintains an office at ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Unless North & South Aspen, LLC has designated
otherwise in writing, the principal office is the office at which North
& South Aspen, LLC keeps its books and records including its records
concerning the Collateral. North & South Aspen, LLC will notify Lender
prior to any change in the location of North & South Aspen, LLC's state
of organization or any change in North & South Aspen, LLC's name. North
& South Aspen, LLC shall do all things necessary to preserve and to
keep in full force and effect its existence, rights and privileges, and
shall comply with all regulations, rules, ordinances, statutes, orders
and decrees of any governmental or quasi-governmental authority or
court applicable to North & South Aspen, LLC and North & South Aspen,
LLC's business activities. Sardy House, LLC is a limited liability
company which is, and at all times shall be, duly organized, validly
existing, and in good standing under and by virtue of the laws of the
State of Colorado. Sardy House, LLC is duly authorized to transact
business in all other states in which Sardy House, LLC is doing
business, having obtained all necessary filings, governmental licenses
and approvals for each state in which Sardy House, LLC is doing
business. Specifically, Sardy House, LLC is, and at all times shall be,
duly qualified as a foreign limited liability company in all states in
which the failure to so qualify would have a material adverse effect on
its business or financial condition. Sardy House, LLC has the full
power and authority to own its properties and to transact the business
in which it is presently engaged or presently proposes to engage. Sardy
House, LLC maintains an office at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Unless Sardy House, LLC has designated otherwise in writing, the
principal office is the office at which Sardy House, LLC keeps its
books and records including its records concerning the Collateral.
Sardy House, LLC will notify Lender prior to any change in the location
of Sardy house, LLC's state of organization or any change in Sardy
House, LLC's name. Sardy House, LLC shall do all things necessary to
preserve and to keep in full force and effect its existence, rights and
privileges, and shall comply with all regulations,
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 4
rules, ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to Sardy House, LLC and Sardy
House, LLC's business activities.
ASSUMED BUSINESS NAMES. Borrower has filed or recorded all documents or filings
required by law relating to all assumed business names used by Borrower.
Excluding the name of Borrower, the following is a complete list of all assumed
business names under which Borrower does business: NONE.
AUTHORIZATION. Borrower's execution, delivery, and performance of this Agreement
and all the Related Documents have been duly authorized by all necessary action
by Borrower and do not conflict with, result in a violation of, or constitute a
default under (1) any provision of Sardy House, LLC's articles of organization
or membership agreements, or any agreement or other instrument binding upon
Borrower or (2) any law, governmental regulation, court decree, or order
applicable to Borrower or to Borrower's properties.
FINANCIAL INFORMATION. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of the
date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will constitute
legal, valid, and binding obligations of Borrower enforceable against Borrower
in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously disclosed
in Borrower's financial statements or in writing to Lender and as accepted by
Lender, and except for property tax liens for taxes not presently due and
payable, Borrower owns and has good title to all of Borrower's properties free
and clear of all Security Interests, and has not executed any security documents
or financing statements relating to such properties. All of Borrower's
properties are titled in Borrower's legal name, and Borrower has not used or
filed a financing statement under any other name for at least the last five (5)
years.
HAZARDOUS SUBSTANCES. Except as disclosed to and acknowledged by Lender in
writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of Borrower's Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance by any person on, under, about or from any of
the Collateral. (2) Borrower has no knowledge of, or reason to believe that
there has been (a) any breach or violation of any Environmental Laws: (b) any
use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral; or (c) any
actual or threatened litigation or claims of any kind by any person relating to
such matters. (3) Neither Borrower nor any tenant, contractor, agent or other
authorized user of any of the Collateral shall use, generate, manufacture,
store, treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations, and
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 5
ordinances, including without limitation all Environmental Laws.
Borrower authorizes Lender and its agents to enter upon the Collateral
to make such inspections and tests as Lender may deem appropriate to
determine compliance of the Collateral with this section of the
Agreement. Any inspections or tests made by Lender shall be at
Borrower's expense and for Lender's purposes only and shall not be
construed to create any responsibility or liability on the part of
Lender to Borrower or to any other person. The representations and
warranties contained herein are based on Borrower's due diligence in
investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (l) releases and waives any future claims
against Lender for indemnity or contribution in time event Borrower
becomes liable for cleanup or other costs under any such laws, and (2)
agrees to indemnify and hold harmless Lender against any and all
claims, losses, liabilities, damages, penalties, and expenses which
Lender may directly or indirectly sustain or suffer resulting from a
breach at this section of the Agreement or as a consequence of any use,
generation, manufacture, storage, disposal, release threatened release
of a hazardous waste or substance on the Collateral. The provisions of
this section of the Agreement, including the obligation to indemnify,
shall survive the payment at the Indebtedness and the termination,
expiration or satisfaction of this Agreement and shall not be affected
by Lender's acquisition of any interest in any of the Collateral,
whether by foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid
taxes) against Borrower is pending or threatened, and no other event
has occurred which may materially adversely affect Borrower's financial
condition or properties, other than litigation, claims, or other
events, if any, that have been disclosed to and acknowledged by Lender
in writing.
TAXES. To the best of Borrower's knowledge, all of Borrower's tax
returns and reports that are or were required to be filed, have been
filed, and all taxes, assessments and other governmental charges have
been paid in full, except those presently being or to be contested by
Borrower in good faith in the ordinary course of business and for which
adequate reserves have been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in
writing, Borrower has not entered into or granted any Security
Agreements, or permitted the filing or attachment of any Security
Interests on or affecting any of the Collateral directly or indirectly
securing repayment of Borrower's Loan and Note, that would be prior or
that may in any way be superior to Lender's Security Interests and
rights in and to such Collateral.
BINDING EFFECT. This Agreement, the Note, all Security Agreements (if
any), and all Related Documents are binding upon the signers thereof,
as well as upon their successors, representatives and assigns, and are
legally enforceable in accordance with their respective terms.
TITLE TO PROPERTY. Borrower has, or on the date of first disbursement
of Loan proceeds will have, good and marketable title to the Collateral
free and clear of all defects, liens, and encumbrances, excepting only
liens for taxes, assessments, or governmental charges or levies not yet
delinquent or payable without penalty or interest, and such liens and
encumbrances as may be approved in writing by the Lender. The
Collateral is contiguous to publicly dedicated streets, roads, or
highways providing access to the Collateral.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 6
PROJECT COSTS. The total cost for the Project shall not exceed
$1,970,000.00. The Project costs are true and accurate estimates of the
costs necessary to complete the Improvements in a good and workmanlike
manner according to the Plans and Specifications presented by Borrower
to Lender, and Borrower shall take all steps necessary to prevent the
actual cost of the Improvements from exceeding the Project costs.
UTILITY SERVICES. All utility services appropriate to the use of the
Project after completion of construction are available at the
boundaries of the Collateral.
ASSESSMENT OF PROPERTY. The Collateral is and will continue to be
assessed and taxed as an independent parcel by all governmental
authorities.
COMPLIANCE WITH GOVERNING AUTHORITIES. Borrower has examined and is
familiar with all the easements, covenants, conditions, restrictions,
reservations, building laws, regulations, zoning ordinances, and
federal, state, and local requirements effecting the Project. The
Project will at all times and in all respects conform to and comply
with the requirements of such easements, covenants, conditions,
restrictions, reservations, building laws, regulations, zoning
ordinances, and federal, state, and local requirements.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and
agrees that in making the Loan, Lender is relying on all
representations, warranties, and covenants made by Borrower in this
Agreement or in any certificate or other instrument delivered by
Borrower to Lender under this Agreement or the Related Documents.
Borrower further agrees that regardless of any investigation made by
Lender, all such representations, warranties and covenants will survive
the making of the Loan and delivery to Lender of the Related Documents,
shall be continuing in nature, and shall remain in full farce and
effect until such time as Borrower's Indebtedness shall be paid in
full, or until this Agreement shall be terminated in the manner
provided above, whichever is the last to occur.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
APPROVAL OF CONTRACTORS, SUBCONTRACTORS, AND MATERIALMEN. Lender shall
have approved a list of all contractors employed in connection with the
construction of the Improvements, showing the name, address, and
telephone number of each contractor, a general description of the
nature at the work to be done, the labor and materials to be supplied,
the names of materialmen, if known, and the approximate dollar value of
the labor, work, or materials with respect to each contractor or
materialman. Lender shall have the right to communicate with any person
to verify the facts disclosed by the list or by any application for any
Advance, or for any other purpose.
PLANS, SPECIFICATIONS, AND PERMITS. Lender shall have received and
accepted a complete set of written Plans and Specifications setting
forth all Improvements for the Project, and Borrower shall have
furnished to Lender copies of all permits and requisite approvals of
any governmental body necessary for the construction and use of the
Project.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 7
ARCHITECT'S AND CONSTRUCTION CONTRACTS. Borrower shall have furnished
in form and substance satisfactory to Lender an executed copy of the
Architect's Contract and an executed copy of the Construction Contract.
RELATED AND SUPPORT DOCUMENTS. Borrower shall provide to Lender in form
satisfactory to Lender the following support documents for the Loan:
Assignment of Architect's Contract and Assignment of Construction
Contract.
BUDGET AND SCHEDULE OF ESTIMATED ADVANCES. Lender shell have approved
detailed budget and cash flow projections of total Project costs and a
schedule of the estimated amount and time of disbursements of each
Advance.
BORROWER'S AUTHORIZATION. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the consummation of the Project and duly authorizing the
execution and delivery of this Agreement, the Note and the Related
Documents. In addition, Borrower shall have provided such other
resolutions, authorizations, documents and instruments as Lender or its
counsel, in their sole discretion, may require.
BOND. If requested by Lender, Borrower shall have furnished a
performance and payment bond in an amount equal to 100% of the amount
of the Construction Contract, as well as a materialmen's and mechanics'
payment bond, with such riders and supplements as Lender may require,
each in form and substance satisfactory to Lender, naming the General
Contractor as principal and Lender as an additional obligee.
APPRAISAL. If required by Lender, an appraisal shall be prepared for
the Property, at Borrower's expense, which in form and substance shall
be satisfactory to Lender, in Lender's sole discretion, including
applicable regulatory requirements.
PLANS AND SPECIFICATIONS. If requested by Lender, Borrower shall have
assigned to Lender on Lender's forms the Plans and Specifications for
the Project.
ENVIRONMENTAL REPORT. If requested by Lender, Borrower shall have
furnished to Lender, at Borrower's expense, an environmental report and
certificate on the Property in form and substance satisfactory to
Lender, prepared by an engineer or other expert satisfactory to Lender
stating that the Property complies with all applicable provisions and
requirements of the "Hazardous Substances" paragraph set forth in this
Agreement.
SOIL REPORT. If requested by Lender, Borrower shall have furnished to
Lender, at Borrower's expenses, a soil report for the Property in form
and substance satisfactory to Lender, prepared by a registered engineer
satisfactory to Lender stating that the Property is free from soil or
other geological conditions that would preclude its use or development
as contemplated without extra expense for precautionary, corrective or
remedial measures.
SURVEY. If requested by Lender, Borrower shall have furnished to Lender
a survey of recent date, prepared and certified by a qualified surveyor
and providing that the Improvements, if constructed in
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 8
accordance with the Plans and Specifications, shall lie wholly within
the boundaries of the Collateral without encroachment or violation of
any zoning ordinances, building codes or regulations, or setback
requirements, together with such other information as Lender in its
sole discretion may require.
ZONING. Borrower shall have furnished evidence satisfactory to Lender
that the Collateral is duly and validly zoned for the construction,
maintenance, and operation of the Project.
TITLE INSURANCE. Borrower shall have provided to Lender an ALTA
Lender's extended coverage policy of title insurance with such
endorsements as Lender may require, issued by a title insurance company
acceptable to Lender and in a form, amount, and content satisfactory to
Lender, insuring or agreeing to insure that Lender's security agreement
or other security document on the Property is or will be upon
recordation a valid first lien on the Property free and clear of all
defects, liens, encumbrances, and exceptions except those as
specifically accepted by Lender in writing. If requested by Lender,
Borrower shall provide to Lender, at Borrower's expense, a foundation
endorsement to that title policy upon the completion of each foundation
for the Improvements, showing no encroachments, and upon completion an
endorsement which insures the lien-free completion of the Improvements.
INSURANCE. Unless waived by Lender in writing, Borrower shall have
delivered to Lender the following insurance policies or evidence
thereof: (a) an all risks course of construction insurance policy
(builder's risk), with extended coverage covering the Improvements
issued in an amount and by a company acceptable to Lender, containing a
loss payable or other endorsement satisfactory to Lender insuring
Lender as mortgagee, together with such other endorsements as may be
required by Lender, including stipulations that coverages will not be
cancelled or diminished without at least ten (10) days prior written
notice to Lender; (b) owners and General Contractor general liability
insurance, public liability and workmen's compensation insurance; (c)
flood insurance if required by Lender or applicable law; and (d) all
other insurance required by this Agreement or by the Related Documents.
WORKERS' COMPENSATION COVERAGE. Provide to Lender proof of the General
Contractor's compliance with all applicable workers' compensation laws
and regulations with regard to all work performed on the Project.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all
fees, charges, and other expenses which are then due and payable as
specified in this Agreement or any Related Document.
SATISFACTORY CONSTRUCTION. All work usually done at the stage of
construction for which disbursement is requested shall have been done
in a good and workmanlike manner and all materials and fixtures usually
furnished and installed at that stage of construction shall have been
furnished and installed, all in compliance with the Plans and
Specifications. Borrower shall also have furnished to Lender such
proofs as Lender may require to establish the progress of the work,
compliance with applicable laws, freedom of the Property from liens,
and the basis for the requested disbursement.
CERTIFICATION. Borrower shall have furnished to Lender a certification
by an engineer, architect, or other qualified inspector acceptable to
Lender that the construction of the Improvements has complied and
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 9
will continue to comply with all applicable statutes, ordinances,
codes, regulations, and similar requirements.
LIEN WAIVERS. Borrower shall have obtained and attached to each
application for an Advance, including the Advance to cover final
payment to the General Contractor, executed acknowledgments of payments
of all sums due and releases of mechanic's and materialmen's liens,
satisfactory to Lender, from any party having lien rights, which
acknowledgments of payment and releases of liens shall cover all work,
labor, equipment, materials done, supplied, performed, or furnished
prior to such application for an Advance.
NO EVENT OF DEFAULT. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this
Agreement or under any Related Document.
DISBURSEMENT OF LOAN FUNDS. The following provisions relate to the disbursement
of funds from the Loan Fund.
APPLICATION FOR ADVANCES. Borrower shall apply for Advances from the
Loan Fund according to the following disbursement schedule: 2 draws per
month.
Each application shall be stated on a standard AIA payment request form
or other form approved by Lender, executed by Borrower, and supported
by such evidence as Lender shall reasonably require. Borrower shall
apply only for disbursement with respect to work actually done by the
General Contractor and for materials and equipment actually
incorporated into the Project. Each application for an Advance shall be
deemed a certification of Borrower that as of the date of such
application, all representations and warranties contained in the
Agreement are true and correct, and that Borrower is in compliance with
all of the provisions of this Agreement.
LOAN TO VALUE. Unless waived by Lender in writing, the ratio of the
amount of the Loan to the Value of the Property as completed shall not
exceed 40.000%.
PAYMENTS. At the sole option of Lender, Advances may be paid in the
joint names of Borrower and the General Contractor, subcontractor(s),
or supplier(s) in payment of sums due under the Construction Contract.
At its sole option, Lender may directly pay the General Contractor and
any subcontractors or other parties the sums due under the Construction
Contract, Borrower appoints Lender as its attorney-in-fact to make such
payments. This power shall be deemed coupled with an interest, shall be
irrevocable, and shall survive an Event of Default under this
Agreement.
PROJECTED COST OVERRUNS. If Lender at any time determines in its sole
discretion that the amount in the Loan Fund is insufficient, or will be
insufficient, to complete fully and to pay for the Project, then within
ten (10) days after receipt of a written request from Lender, Borrower
shall deposit in the Loan Fund an amount equal to the deficiency as
determined by Lender. The judgment and determination of Lender under
this section shall be final and conclusive. Any such amounts deposited
by Borrower shall be disbursed prior to any Loan proceeds.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 10
FINAL PAYMENT TO GENERAL CONTRACTOR. Upon completion of the Project and
fulfillment of the Construction Contract to the satisfaction of Lender
and provided sufficient Loan Funds are available, Lender shall make an
Advance to cover the final payment due to the General Contractor upon
delivery to Lender of endorsements to the ALTA title insurance policy
following the posting of the completion notice, as provided under
applicable law. Construction shall not be deemed complete for purposes
of final disbursement unless and until Lender shall have received all
of the following:
(1) Evidence satisfactory to Lender that all work under the
Construction Contract requiring inspection by any governmental
authority with jurisdiction has been duly inspected and
approved by such authority, that a certificate of occupancy
has been issued, and that all parties performing work have
been paid, or will be paid, for such work;
(2) A certification by an engineer, architect, or other
qualified inspector acceptable to Lender that the Improvements
have been completed substantially in accordance with the Plans
and Specifications and the Construction Contract, that direct
connection has been made to all utilities set forth in the
Plans and Specifications, and that the Project is ready for
occupancy; and
(3) Acceptance of the completed Improvements by Lender and
Borrower.
CONSTRUCTION DEFAULT. If Borrower fails in any respect to comply with
the provisions of this Agreement or if construction ceases before
completion regardless of the reason, Lender, at its option, may refuse
to make further Advances, may accelerate the indebtedness under the
terms of the Note, and without thereby impairing any of its rights,
powers, or privileges, may enter into possession of the construction
site and perform or cause to be performed any and all work and labor
necessary to complete the Improvements, substantially in accordance
with the Plans and Specifications.
DAMAGE OR DESTRUCTION. If any of the Collateral or Improvements is
damaged or destroyed by casualty of any nature, within sixty (60) days
thereafter Borrower shall restore the Collateral and Improvements to
the condition in which they were before such damage or destruction with
funds other than those in the Loan Fund. Lender shall not be obligated
to make disbursements under this Agreement until such restoration has
been accomplished.
ADEQUATE SECURITY. When any event occurs that Lender determines may
endanger completion of the Project or the fulfillment of any condition
or covenant in this Agreement, Lender may require Borrower to furnish,
within ten (10) days after delivery of a written request, adequate
security to eliminate, reduce, or indemnify Lender against, such
danger. In addition, upon such occurrence, Lender in its sole
discretion may advance funds or agree to undertake to advance funds to
any party to eliminate, reduce, or indemnify Lender against, such
danger or to complete the Project. All sums paid by Lender pursuant to
such agreements or undertakings shall be for Borrower's account and
shall be without prejudice to Borrower's rights, if any, to receive
such funds from the party to whom paid. All sums expended by Lender in
the exercise of its option to complete the Project or protect Lender's
interests shall be payable to Lender on demand together with interest
from the date of the Advance at the rate applicable to the Loan. In
addition, any Advance of funds under this Agreement, including without
limitation direct disbursements to the General Contractor or other
parties in payment of sums due under the Construction
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 11
Contract, shall be deemed to have been expended by or on behalf of
Borrower and to have been secured by Lender's Deed of Trust, if any, on
the Collateral.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(A) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in
good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure, even though no Event of Default shall have
occurred.
LIMITATION OF RESPONSIBILITY. The making of any Advance by Lender shall not
constitute or be interpreted as either (A) an approval or acceptance by Lender
of the work done through the date of the Advance, or (B) a representation or
indemnity by Lender to any party against any deficiency or defect in the work or
against any breach of any contract. Inspections and approvals of the Plans and
Specifications, the Improvements, the workmanship and materials used in the
Improvements, and the exercise of any other right of inspection, approval, or
inquiry granted to Lender in this Agreement are acknowledged to be solely for
the protection of Lender's interests, and under no circumstances shall they be
construed to impose any responsibility or liability of any nature whatsoever on
Lender to any party. Neither Borrower nor any contractor, subcontractor,
materialman, laborer, or any other person shall rely, or have any right to rely,
upon Lender's determination of the appropriateness of any Advance. No
disbursement or approval by Lender shall constitute a representation by Lender
as to the nature of the Project, its construction, or its intended use for
Borrower or for any other person, nor shall it constitute an indemnity by Lender
to Borrower or to any other person against any deficiency or defects in the
Project or against any breach of any contract.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
NOTICES OF CLAIMS AND LITIGATION. Promptly inform Lender in writing of
(1) all material adverse changes in Borrower's financial condition, and
(2) all existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with
GAAP, applied on a consistent basis, and permit Lender to examine and
audit Borrower's books and records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with the following:
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 12
ADDITIONAL REQUIREMENTS. Annual Statements. As soon as available, but
in no event later than February 1st of each year, North and South
Aspen, LLC and Sardy House, LLC's balance sheet and income statement
for the year ended, prepared by Borrowers.
Annual Statements. As soon as available, but in no event later than
February 1st of each year, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ balance sheet and income
statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than April
15th of each year, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ Federal and other governmental
tax returns, prepared by Guarantor.
Annual Statements. As soon as available, but in no event later than
February 1st of each year, ▇▇▇▇▇ ▇▇▇▇▇▇' balance sheet and income
statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than April
15th of each year, ▇▇▇▇▇ ▇▇▇▇▇▇' Federal and other governmental tax
returns, prepared by Guarantor.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and statements,
lists of assets and liabilities, agings of receivables and payables, inventory
schedules, budgets, forecasts, tax returns, and other reports with respect to
Borrower's financial condition and business operations as Lender may request
from time to time.
OTHER AGREEMENTS. Comply with all terms and conditions of all other agreements,
whether now or hereafter existing, between Borrower and any other party and
notify Lender immediately in writing of any default in connection with any other
such agreements.
INSURANCE. Maintain fire and other risk insurance, hail, federal crop insurance,
public liability insurance, and such other insurance as Lender may require with
respect to Borrower's properties and operations, in form, amounts, coverages and
with insurance companies acceptable to Lender. Borrower, upon request of Lender,
will deliver to Lender from time to time the policies or certificates of
insurance in form satisfactory to Lender, including stipulations that coverages
will not be cancelled or diminished without at least ten (10) days prior written
notice to Lender. Each insurance policy also shall include an endorsement
providing that coverage in favor of Lender will not be impaired in any way by
any act, omission or default of Borrower or any other person. In connection with
all policies covering assets in which Lender holds or is offered a security
interest for the Loans, Borrower will provide Lender with such Lender's loss
payable or other endorsements as Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on each
existing insurance policy showing such information as Lender may reasonably
request, including without limitation the following: (1) the name of the
insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties
insured; (5) the then current property values on the basis of which insurance
has been
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 13
obtained, and the manner of determining those values; and (6) the expiration
date of the policy. In addition, upon request of Lender (however not more often
than annually), Borrower will have an independent appraiser satisfactory to
Lender determine, as applicable, the actual cash value or replacement cost of
any Collateral. The cost of such appraisal shall be paid by Borrower.
GUARANTIES. Prior to disbursement of any Loan proceeds, furnish executed
guaranties of the Loans in favor of Lender, executed by the guarantors named
below, on Lender's forms, and in the amounts and under the conditions set forth
in those guaranties.
Names of Guarantors Amounts
------------------- -------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Unlimited
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Unlimited
LOAN FEES, CHARGES AND EXPENSES. Whether or not the Project is completed,
Borrower also shall pay upon demand all out-of-pocket expenses incurred by
Lender in connection with the preparation of loan documents and the making of
the Loan, including, without limitation, all closing costs, fees, and
disbursements, all expenses of Lender's legal counsel, and all title examination
fees, title insurance premiums, appraisal fees, survey costs, required fees, and
filing and recording fees.
LOAN PROCEEDS. Use the Loan Funds solely for payment of bills end expenses
directly related to the Project.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its indebtedness and
obligations, including without limitation all assessments, taxes, governmental
charges, levies and liens, of every kind and nature, imposed upon Borrower or
its properties, income, or profits, prior to the date on which penalties would
attach, and all lawful claims that, if unpaid, might become a lien or charge
upon any of Borrower's properties, income, or profits.
PERFORMANCE. Perform and comply, in a timely manner, with all terms, conditions,
and provisions set forth in this Agreement, in the Related Documents, and in all
other instruments and agreements between Borrower and Lender. Borrower shall
notify Lender immediately in writing of any default in connection with any
agreement.
INSPECTION. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
properties and to examine or audit Borrower's books, accounts, and records and
to make copies and memoranda of Borrower's books, accounts, and records. If
Borrower now or at any time hereafter maintains any records (including without
limitation computer generated records and computer software programs for the
generation of such records) in the possession of a third party, Borrower, upon
request of Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of any records
it may request, all at Borrower's expense.
COMPLIANCE CERTIFICATES. Unless waived in writing by Lender, provide Lender at
least annually, with a certificate executed by Borrower's chief financial
officer, or other officer or person acceptable to
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 14
Lender, certifying that the representations and warranties set forth in this
Agreement are true and correct as of the date of the certificate and further
certifying that, as of the date of the certificate, no Event of Default exists
under this Agreement.
CONSTRUCTION OF THE PROJECT. Commence construction of the Project no later than
April 9, 2003, and cause the Improvements to be constructed and equipped in a
diligent and orderly manner and in strict accordance with the Plans and
Specifications approved by Lender, the Construction Contract, and all applicable
laws, ordinances, codes, regulations, and rights of adjoining or concurrent
property owners. Borrower agrees to complete the Project for purposes of final
payment to the General Contractor on or before December 31, 2003, regardless of
the reason for any delay.
DEFECTS. Upon demand of Lender, promptly correct any defect in the improvements
or any departure from the Plans and Specifications not approved by Lender in
writing before further work shall be done upon the portion of the Improvements
affected.
PROJECT CLAIMS AND LITIGATION. Promptly inform Lender of (1) all material
adverse changes in the financial condition of the General Contractor; (2) any
litigation and claims, actual or threatened, affecting the Project or the
General Contractor, which could materially affect the successful completion of
the Project or the ability of the General Contractor to complete the Project as
agreed; and (3) any condition or event which constitutes a breach or default
under any of the Related Documents or any contract related to the Project.
PAYMENT OF CLAIMS AND REMOVAL OF LIENS. (1) Cause all claims for labor done and
materials and services furnished in connection with the Improvements to be fully
paid and discharged in a timely manner, (2) diligently file or procure the
filing of a valid notice of completion of the Improvements, or such comparable
document as may be permitted under applicable lien laws, (3) diligently file or
procure the filing of a notice of cessation, or such comparable document as may
be permitted under applicable lien laws, upon the happening of cessation of
labor on the Improvements for a continuous period of thirty (30) days or more,
and (4) take all reasonable steps necessary to remove all claims of liens
against the Collateral, the Improvements or any part of the Collateral or
Improvements, or any rights or interests appurtenant to the Collateral or
Improvements. Upon Lender's request, Borrower shall make such demands or claims
upon or against laborers, materialmen, subcontractors, or other persons who have
furnished or claim to have furnished labor, services, or materials in connection
with the Improvements, which demands or claims shall under the laws of the State
of Colorado require diligent assertions of lien claims upon penalty of loss or
waiver thereof. Borrower shall, within ten (10) days after the filing of any
claim of lien that is disputed or contested by Borrower, provide Lender with a
surety bond issued by a surety acceptable to Lender sufficient to release the
claim of lien or deposit with Lender an amount satisfactory to Lender for the
possibility that the contest will be unsuccessful. If Borrower fails to remove
any lien on the Collateral or Improvements or provide a bond or deposit pursuant
to this provision, Lender may pay such lien, or may contest the validity of the
lien, and Borrower shall pay all costs and expenses of such contest, including
Lender's reasonable attorneys' fees.
TAXES AND CLAIMS. Pay and discharge when due all of Borrower's indebtedness,
obligations, and claims that, if unpaid, might become a lien or charge upon the
Collateral or Improvements; provided,
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 15
however, that Borrower shall not be required to pay and discharge any
such indebtedness, obligation, or claim so long as (1) its legality
shall be contested in good faith by appropriate proceedings, (2) the
indebtedness, obligation, or claim does not become a lien or charge
upon the Collateral or Improvements, and (3) Borrower shall have
established on its books adequate reserves with respect to the amount
contested in accordance with GAAP. If the indebtedness, obligation, or
claim does become a lien or charge upon the Collateral or Improvements,
Borrower shall remove the lien or charge as provided in the preceding
paragraph.
ENVIRONMENTAL STUDIES. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as
may be requested by Lender or any governmental authority relative to
any substance, or any waste or by-product of any substance defined as
toxic or a hazardous substance under applicable federal, state, or
local law, rule, regulation, order or directive, at or affecting any
property or any facility owned, leased or used by Borrower.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such
promissory notes, mortgages, deeds of trust, security agreements,
assignments, financing statements, instruments, documents and other
agreements as Lender or its attorneys may reasonably request to
evidence and secure the Loans and to perfect all Security Interests in
the Collateral and Improvements.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Borrower. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (1) Except for trade debt incurred in the
normal course of business and indebtedness to Lender contemplated by
this Agreement, create, incur or assume indebtedness for borrowed
money, including capital leases, (2) sell, transfer, mortgage, assign,
pledge, lease, grant a security interest in, or encumber any of
Borrower's assets (except as allowed as Permitted Liens), or (3) sell
with recourse any of Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (1) Engage in any business activities
substantially different than those in which Borrower is presently
engaged, (2) cease operations, liquidate, merge, transfer, acquire or
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 16
consolidate with any other entity, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of business, or
(3) make any distribution with respect to any capital account, whether
by reduction of capital or otherwise.
LOANS, ACQUISITIONS AND GUARANTIES. (1) Loan, invest in or advance
money or assets, (2) purchase, create or acquire any interest in any
other enterprise or entity, or (3) incur any obligation as surety or
guarantor other than in the ordinary course of business.
MODIFICATION OF CONTRACT. Make or permit to be made any modification of
the Construction Contract.
LIENS. Create or allow to be created any lien or charge upon the
Collateral or the Improvements.
GENERAL PROJECT PROVISIONS. The following provisions relate to the construction
and completion of the Project:
CHANGE ORDERS. All requests for changes in the Plans and
Specifications, other than minor changes involving no extra cost, must
be in writing, signed by Borrower and the architect, and delivered to
Lender for its approval. Borrower will not permit the performance of
any work pursuant to any change order or modification of the
Construction Contract or any subcontract without the written approval
of Lender. Borrower will obtain any required permits or authorizations
from governmental authorities having jurisdiction before approving or
requesting a new change order.
PURCHASE OF MATERIALS; CONDITIONAL SALE CONTRACTS. No materials,
equipment, fixtures, or articles of personal property placed in or
incorporated into the Project shall be purchased or installed under any
Security Agreement or other agreement whereby the seller reserves or
purports to reserve title or the right of removal or repossession, or
the right to consider such items as personal property after their
incorporation into the Project, unless otherwise authorized by Lender
in writing.
LENDER'S RIGHT OF ENTRY AND INSPECTION. Lender and its agents shall
have at all times the right of entry and free access to the Property
and the right to inspect all work done, labor performed, and materials
furnished with respect to the Project. Lender shall have unrestricted
access to and the right to copy all records, accounting books,
contracts, subcontracts, bills, statements, vouchers, and supporting
documents of Borrower relating in any way to the Project.
LENDER'S RIGHT TO STOP WORK. If Lender in good faith determines that
any work or materials do not conform to the approved Plans and
Specifications or sound building practices, or otherwise depart from
any of the requirements of this Agreement, Lender may require the work
to be stopped and withhold disbursements until the matter is corrected.
In such event, Borrower will promptly correct the work to Lender's
satisfaction. No such action by Lender will affect Borrower's
obligation to complete the Improvements on or before the Completion
Date. Lender is under no duty to supervise or inspect the construction
or examine any books and records. Any inspection or examination by
Lender is for the sole purpose of protecting Lender's security and
preserving Lender's rights under this Agreement. No default of Borrower
will be waived by any inspection by Lender. In no event will any
inspection by
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 17
Lender be a representation that there has been or will be compliance
with the Plans and Specifications or that the construction is free from
defective materials or workmanship.
INDEMNITY. Borrower shall indemnify and hold Lender harmless from any
and all claims asserted against Lender or the Property by any person,
entity, or governmental body, or arising out of or in connection with
the Property, Improvements, or Project. Lender shall be entitled to
appear in any proceedings to defend itself against such claims, and all
costs and expenses attorneys' fees incurred by Lender in connection
with such defense shall be paid by Borrower to Lender. Lender shall, in
its sole discretion, be entitled to settle or compromise any asserted
claims against it, and such settlement shall be binding upon Borrower
for purposes of this indemnification. All amounts paid by Lender under
this paragraph shall be secured by Lender's security agreement or Deed
of Trust, if any, on the Property, shall be deemed an additional
principal Advance under the Loan, payable upon demand, and shall bear
interest at the rate applicable to the Loan.
PUBLICITY. Lender may display a sign at the construction site informing
the public that Lender is the construction lender for the Project.
Lender may obtain other publicity in connection with the Project
through press releases and participation in ground breaking and opening
ceremonies and similar events.
ACTIONS. Lender shall have the right to commence, appear in, or defend
any action or proceeding purporting to affect the rights, duties, or
liabilities of the parties to this Agreement, or the disbursement of
funds from the Loan Fund. In connection with this right, Lender may
incur and pay reasonable costs, expenses and attorneys fees. Borrower
covenants to pay to Lender on demand all such expenses, together with
interest from the date Lender incurs the expense at the rate specified
in the Note, and Lender is authorized to disburse funds from the Loan
Fund for such purposes.
BIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any ▇▇▇ or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Loan.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or
in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults
under any loan, extension of credit, security agreement, purchase or
sales agreement, or any other agreement, in favor of any other creditor
or person that may materially affect any of Borrower's or any Grantor's
property or Borrower's
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 18
or any Grantor's ability to repay the Loans or perform their respective
obligations under this Agreement or any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any
material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
DEATH OR INSOLVENCY. The dissolution of Borrower (regardless of whether
election to continue is made), any member withdraws from Borrower, or
any other termination of Borrower's existence as a going business or
the death of any member, the insolvency of Borrower, the appointment of
a receiver for any part at Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for stay reason.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Loan. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply
if there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of
the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an
amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
BREACH OF CONSTRUCTION CONTRACT. The Improvements are not constructed
in accordance with, the Plans and Specifications or in accordance with
the terms of the Construction Contract.
CESSATION OF CONSTRUCTION. Prior to the completion of construction of
the Improvements and equipping of the Project, the construction of the
Improvements or the equipping of the Project is abandoned or work
thereon ceases for a period of more than ten (10) days for any reason,
or the Improvements are not completed for purposes of final payment to
the General Contractor prior to August 1, 2003, regardless of the
reason for the delay.
TRANSFER OF PROPERTY. Sale, transfer, hypothecation, assignment, or
conveyance of the Property or the Improvements or any portion thereof
or interest therein by Borrower or any Borrower without Lender's prior
written consent.
CONDEMNATION. All or any material portion of the Collateral is
condemned, seized, or appropriated without compensation, and Borrower
does not within thirty (30) days after such condemnation, seizure, or
appropriation, initiate and diligently prosecute appropriate action to
contest in good faith the validity of such condemnation, seizure, or
appropriation.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 19
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of the Loan is impaired.
INSECURITY. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULTS; REMEDIES. Upon the occurrence of any Event of
Default and at any time thereafter, Lender may, at its option, but without any
obligation to do so, and in addition to any other right Lender without notice to
Borrower may have, do any one or more of the following without notice to
Borrower: (a) Cancel this Agreement; (b) Institute appropriate proceedings to
enforce the performance of this Agreement; (c) Withhold further disbursement of
Loan Funds; (d) Expend funds necessary to remedy the default; (e) Take
possession of the Property and continue construction of the Project; (f)
Accelerate maturity of the Note and/or Indebtedness and demand payments of all
sums due under the Note and/or Indebtedness; (g) Bring an action on the Note
and/or Indebtedness; (h) Foreclose Lender's security agreement or Deed of Trust,
if any, on the Property in any manner available under law: and (i) Exercise any
other right or remedy which it has under the Note or Related Documents, or which
is otherwise available at law or in equity or by statute,
COMPLETION OF IMPROVEMENTS BY LENDER. If Lender takes possession of the
Collateral, it may take any and all actions necessary in its judgment to
complete construction of the Improvements, including but not limited to making
changes in the Plans and Specifications, work, or materials and entering into,
modifying or terminating any contractual arrangements, subject to Lender's right
at any time to discontinue any work without liability. If Lender elects to
complete the Improvements, it will not assume any liability to Borrower or to
any other person for completing the Improvements or for the manner or quality of
construction of the Improvements, and Borrower expressly waives any such
liability. Borrower irrevocably appoints Lender as its attorney-in-fact, with
full power at substitution, to complete the Improvements, at Lender's option,
either in Borrower's name or in its own name. In any event, all sums expended by
Lender in completing the construction of the Improvements will be considered to
have been disbursed to Borrower and will be secured by the Collateral for the
Loan. Any such sums that cause the principal amount of the Loan to exceed the
face amount of the Note will be considered to be an additional Loan to Borrower,
bearing interest at the Note rate and being secured by the Collateral. For these
purposes, Borrower assigns to Lender all of its right, title and interest and to
the Project Documents; however Lender will not have any obligation under the
Project Documents unless Lender expressly hereafter agrees to assume such
obligations in writing. Lender will have the right to exercise any rights of
Borrower under the Project Documents upon the occurrence of an Event of Default.
Except as may be prohibited by applicable law, all of Lender's rights and
remedies, whether evidenced by this Agreement or by any other writing, shall be
cumulative and be exercised singularly or concurrently.
ADDITIONAL DOCUMENTS. Borrower shall provide Lender with the following
additional documents:
ARTICLES OF ORGANIZATION AND COMPANY RESOLUTIONS. North & South Aspen,
LLC has provided or will provide Lender with a certified copy of North
& South Aspen, LLC's Articles of Organization, together with a
certified copy of resolutions properly adopted by the members of the
Company, under which the
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 20
members authorized one or more designated members or employees to
execute this Agreement, the Note and any and all Security Agreements
directly or indirectly securing repayment of the same, and to
consummate the borrowings and other transactions as contemplated under
this Agreement, and to consent to the remedies following any default by
North & South Aspen, LLC as provided in this Agreement and in any
Security Agreements.
ARTICLES OF ORGANIZATION AND COMPANY RESOLUTIONS. Sardy House, LLC has
provided or will provide Lender with a certified copy of Sardy House,
LLC's Articles of Organization, together with a certified copy of
resolutions properly adopted by the members of the company, under which
the members authorized one or more designated members or employees to
execute this Agreement, the Note and any and all Security Agreements
directly or indirectly securing repayment of the same, and to
consummate the borrowings and other transactions as contemplated under
this Agreement, and to consent to the remedies following any default by
Sardy House, LLC as provided in this Agreement and in any Security
Agreements.
OPINION OF COUNSEL. When required by Lender, Borrower has provided or
will provide Lender with an opinion of Borrower's counsel certifying to
and that: (l) Borrower's Note, any Security Agreements and this
Agreement constitute valid and binding obligations on Borrower's part
that are enforceable in accordance with their respective terms; (2)
Borrower is validly existing and in good standing; (3) Borrower has
authority to enter into this Agreement and to consummate the
transactions contemplated under this Agreement; and (4) such other
matters as may have been requested by Lender or by Lender's counsel.
1099 AGREEMENT. Unless Lender exercises its option to make payments directly to
the General Contractor, subcontractors or other parties under "Disbursement of
Loan Proceeds" above, all Advances under the Loan shall be deposited into
Borrower's deposit account with Lender and Borrower shall make all of such
payments from such deposit account. Borrower shall, at its sole cost and
expense, prepare and file all information returns required under the Code,
including Form 1099, in connection with all payments of $600.00 or more during
any calendar year that are made by Borrower or Lender to any persons or entities
providing services or materials on the Project. Such information returns shall
be prepared and timely filed in accordance with all of the requirements of the
Internal Revenue Code of 1986, as amended (the "Code"), and all regulations
issued thereunder. Borrower shall retain in its files copies of all information
returns prepared and filed for the Project for the period of time required under
the Code. Upon request, Borrower shall provide the Lender with copies of any or
all of such information returns. Lender shall also have the right, upon prior
notice to Borrower, to audit Borrower's books and records with respect to the
Loan and Project and Borrower's compliance with the requirements contained
herein. Borrower shall indemnify the Lender and hold it harmless from and
against all losses, damages, claims, actions, fines, penalties, interest, costs
and expenses, including attorney fees, that are incurred by the Lender and arise
out of the failure of the Borrower to comply with its obligations hereunder.
LOAN CONDITIONS, COVENANTS AND MONITORING. Borrower will need to have pre-sold
membership units with a total value of not less than 4.5 million by March 1,
2005 otherwise Borrower must list for sale the subject property as a
single-family residence or repay the subject loan in full. Contracts shall be in
form and substance satisfactory to Bank, in its sole discretion.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 21
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
ATTORNEYS' FEES; EXPENSES. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce
this Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Borrower also shall pay
all court costs and such additional fees as may be directed by the
court.
AUTHORITY TO FILE NOTICES. Borrower appoints and designates Lender as
its attorney-in-fact to file for the record any notice that Lender
deems necessary to protect its interest under this Agreement. This
power shall be deemed coupled with an interest and shall be irrevocable
while any sum or performance remains due and owing under any of the
Related Documents.
CAPTION HEADINGS. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define
the provisions of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF
COLORADO. THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF
COLORADO.
INDEMNIFICATION OF LENDER. Borrower agrees to indemnify, to defend and
to save and hold Lender harmless from any and all claims, suits,
obligations, damages, losses, costs and expenses (including, without
limitation, Lender's attorneys' fees, as well as Lender's architect's
and engineering fees), demands, liabilities, penalties, fines and
forfeitures of any nature whatsoever that may be asserted against or
incurred by Lender, its officers, directors, employees, and agents
arising out of, relating to, or in any manner occasioned by this
Agreement and the exercise of the rights and remedies granted Lender
under this. The foregoing indemnity provisions shall survive the
cancellation of this Agreement as to all matters arising or accruing
prior to such cancellation and the foregoing indemnity shall survive in
the event that Lender elects to exercise any of the remedies as
provided under this Agreement following default hereunder.
JOINT AND SEVERAL LIABILITY. All obligations of Borrower under this
Agreement shall be joint and several, and all references to Borrower
shall mean each and every Borrower. This means that each Borrower
signing below is responsible for all obligations in this Agreement.
Where any one or more of the parties is a corporation, partnership,
limited liability company or similar entity, it is not necessary for
Lender to inquire into the powers of any of the officers, directors,
partners, members, or other agents
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 22
acting or purporting to act on the entity's behalf, and any obligations
made or created in reliance upon the professed exercise of such powers
shall be guaranteed under this Agreement.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower or about any
other matter relating to the Loan, and Borrower hereby waives any
rights to privacy Borrower may have with respect to such matters.
Borrower additionally waives any and all notices of sale of
participation interests, as well as all notices of any repurchase of
such participation interests. Borrower also agrees that the purchasers
of any such participation interests will be considered as the absolute
owners of such interests in the Loan and will have all the rights
granted under the participation agreement or agreements governing the
sale of such participation interests. Borrower further waives all
rights of offset or counterclaim that it may have now or later against
Lender or against any purchaser of such a participation interest and
unconditionally agrees that either Lender or such or such purchaser may
enforce Borrower's obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan.
Borrower further agrees that the purchaser of any such participation
interests may enforce its interests irrespective of any personal claims
or defenses that Borrower may have against Lender.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision at this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Borrower, or between Lender and any Grantor, shall
constitute a waiver of any of Lender's rights or of any of Borrower's
or any Grantor's obligations as to any future transactions. Whenever
the consent of Lender is required under this Agreement, the granting of
such consent by Lender in any instance shall not constitute continuing
consent to subsequent instances where such consent is required and in
all cases such consent may be granted or withheld in the sole
discretion of Lender.
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
person or circumstance, that finding shall not make the offending
provision illegal, invalid, or unenforceable as to any other person or
circumstance. If feasible, the offending provision shall be considered
modified so that it becomes legal, valid and enforceable. If the
offending provision cannot be so modified, it shall be considered
deleted from this Agreement. Unless otherwise required by law, the
illegality, invalidity, or unenforceability of any provision of this
Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or on
behalf of Borrower shall bind Borrower's successors and assigns and
shall inure to the benefit of Lender and its successors and
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 23
assigns. Borrower shall not, however, have the right to assign
Borrower's rights under this Agreement or any interest therein, without
the prior written consent of Lender.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and
agrees that in making the Loan, Lender is relying on all
representations, warranties, and covenants made by Borrower in this
Agreement or in any certificate or other instrument delivered by
Borrower to Lender under this Agreement or the Related Documents.
Borrower further agrees that regardless of any investigation made by
Lender, all such representations, warranties and covenants will survive
the making of the Loan and delivery to Lender of the Related Documents,
shall be continuing in nature, and shall remain in full force and
effect until such time as Borrower's Indebtedness shall be paid in
full, or until this Agreement shall be terminated in the manner
provided above, whichever is the last to occur.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of
this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement:
ADVANCE. The word "Advance" means a disbursement of Loan funds made, or
to be made, to Borrower or on Borrower's behalf on a line of credit or
multiple advance basis under the terms and conditions of this
Agreement.
AGREEMENT. The word "Agreement" means this Construction Loan Agreement,
as this Construction Loan Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Construction Loan Agreement from time to time.
ARCHITECT'S CONTRACT. The words "Architect's Contract" mean the
architect's contract between Borrower and ▇▇▇▇▇ ▇▇▇▇▇▇ Architects, the
architect for the Project.
BORROWER. The word "Borrower" means North & South Aspen, LLC; and Sardy
House, LLC, and all other persons and entities signing the Note in
whatever capacity.
COLLATERAL. The word "Collateral" means all property and assets granted
as collateral security for a Loan, whether real or personal property,
whether granted directly or indirectly, whether granted now or in the
future, and whether granted in the form of a security interest,
mortgage, collateral mortgage, deed of trust, assignment, pledge, crop
pledge, chattel mortgage, collateral chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien,
charge, lien or title retention contract, lease or consignment intended
as a security device, or any other security or lien interest
whatsoever, whether created by law, contract, or otherwise.
COMPLETION DATE. The words "Completion Date" mean August 1, 2003.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 24
CONSTRUCTION CONTRACT. The words "Construction Contract" mean the
contract between Borrower and Block 66, LLC, the general contractor for
the Project, and any subcontracts with subcontractors, materialmen,
laborers, or any other person or entity for performance of work on the
Project or the delivery of materials to the Project.
CONTRACTOR. The word "Contractor" means Block 66, LLC, the general
contractor for the Project.
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all
state, federal and local statutes, regulations and ordinances relating
to the protection of human health or the environment, including without
limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499 ("▇▇▇▇"), the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable
state or federal laws, rules, or regulations adopted pursuant thereto.
EVENT OF DEFAULT. The words "Event of Default" mean any of the events
of default set forth in this Agreement in the default section of this
Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan and any guarantor under a
completion guaranty agreement.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to
Lender, including without limitation a guaranty of all or part of the
Note.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean materials
that, because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential
hazard to human health or the environment when improperly used,
treated, stored, disposed of, generated, manufactured, transported or
otherwise handled. The words "Hazardous Substances" are used in their
very broadest sense and include without limitation any and all
hazardous or toxic substances, materials or waste as defined by or
listed under the Environmental Laws. The term "Hazardous Substances"
also includes, without limitation, petroleum and petroleum by-products
or any fraction thereof and asbestos.
IMPROVEMENTS. The word "Improvements" means all existing and future
buildings, structures, facilities, fixtures, additions, and similar
construction on the Collateral.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced
by the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the
Related Documents.
LENDER. The word "Lender" means WestStar Bank, its successors and
assigns.
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 25
LOAN. The word "Loan" means the loan or loans made to Borrower under
this Agreement and the Related Documents as described.
LOAN FUND. The words "Loan Fund" mean the undisbursed proceeds of the
Loan under this Agreement together with any equity funds or other
deposits required from Borrower under this Agreement.
NOTE. The word "Note" means the promissory note dated March 28, 2003,
in the original principal amount of $4,000,000.00 from Borrower to
Lender, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the
promissory note or agreement.
PERMITTED LIENS. The words "Permitted Liens" mean (1) liens and
security interests securing Indebtedness owed by Borrower to Lender;
(2) liens for taxes, assessments, or similar charges either not yet due
or being contested in good faith; (3) liens of materialmen, mechanics,
warehousemen, or carriers, or other like liens arising in the ordinary
course of business and securing obligations which are not yet
delinquent; (4) purchase money liens or purchase money security
interests upon or in any property acquired or held by Borrower in the
ordinary course of business to secure indebtedness outstanding on the
date of this Agreement or permitted to be incurred under the paragraph
of this Agreement titled "Indebtedness and Liens"; (5) liens and
security interests which, as of the date of this Agreement, have been
disclosed to and approved by the Lender in writing; and (6) those liens
and security interests which in the aggregate constitute an immaterial
and insignificant monetary amount with respect to the net value of
Borrower's assets.
PLANS AND SPECIFICATIONS. The words "Plans and Specifications" mean the
plans and specifications for the Project which have been submitted to
and initialed by Lender, together with such changes and additions as
may be approved by Lender in writing.
PROJECT. The word "Project" means the construction project as described
in the "Project Description" section of this Agreement.
PROJECT DOCUMENTS. The words "Project Documents" mean the Plans and
Specifications, all studies, data and drawings relating to the Project,
whether prepared by or for Borrower, the Construction Contract, the
Architect's' Contract, and all other contracts and agreements relating
to the Project or the construction of the improvements.
PROPERTY. The word "Property" means the property as described in the
"Project Description" section of this Agreement.
REAL PROPERTY. The words "Real Property" mean the real property,
interests and rights, as further described in the "Project Description"
section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust,
CONSTRUCTION LOAN AGREEMENT
Loan No. 55032 (CONTINUED) Page 26
security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed
in connection with the Loan.
SECURITY AGREEMENT. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract,
or otherwise, evidencing, governing, representing, or creating a
Security Interest.
SECURITY INTEREST. The words "Security Interest" mean, without
limitation, any and all types of collateral security, present and
future, whether in the form of a lien, charge, encumbrance, mortgage,
deed of trust, security deed, assignment, pledge, crop pledge, chattel
mortgage, collateral chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien or title
retention contract, lease or consignment intended as a security device,
or any other security or lien interest whatsoever whether created by
law, contract, or otherwise.
VALUE. The word "Value" means such amount or worth as defined and
determined by Lender in its sole discretion unless agreed to the
contrary by Lender in writing.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS CONSTRUCTION LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS CONSTRUCTION LOAN AGREEMENT IS
DATED MARCH 28, 2003.
BORROWER:
NORTH & SOUTH ASPEN, LLC
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------- ----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager of North & South ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager of North & South
Aspen, LLC Aspen, LLC
SARDY HOUSE, LLC
BLOCK 66, LLC, MANAGER OF SARDY HOUSE, LLC
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------- ----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager of Block 66, LLC ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager of Block 66, LLC
LENDER:
WESTSTAR BANK
BY: /S/ ▇▇▇▇▇ Mars
------------------------------------------------
Authorized Signer