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EXHIBIT 10.8
FIRST DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FINANCING STATEMENT
THIS INDENTURE is made and entered into this 24th day of August, 1999,
between CAFE ODYSSEY, INC., a Minnesota corporation ("Grantor"), whose address
is 4801 West 81st Street, Suite 112, Bloomington, Minnesota 55437, and the
PUBLIC TRUSTEE OF DENVER COUNTY, COLORADO ("Trustee").
WITNESSETH:
WHEREAS, FAIRVIEW PARTNERS, an Ohio general partnership ("Beneficiary")
whose address is 5807 McCray Court, Cincinnati, OH 45224, has agreed to make a
loan to the Grantor in the amount of $2,000,000.00 pursuant to the terms and
subject to the conditions set forth in that certain loan agreement of even date
herewith by and between the Beneficiary and the Grantor (the "Loan Agreement");
and
WHEREAS, Grantor has executed that certain Senior Convertible Note
("Note") of even date herewith for the principal sum of Two Million Dollars
($2,000,000.00), payable to the order of the Beneficiary with interest thereon
from the date hereof as provided in the Note and with the balance of principal
and interest due and payable in full on August 24, 2000; and
WHEREAS, Grantor is desirous of securing to Beneficiary, their
successors and assigns, the payment of the principal and interest becoming due
under the Note, together with any and all advances made, expenditures
authorized, costs and attorneys' fees incurred, or any other additional sums as
provided for herein or in the Note secured hereby or the Loan Agreement which
are expended or incurred by Beneficiary (all of which shall collectively
hereinafter sometimes be referred to as the "Secured Indebtedness"); and
WHEREAS, Grantor owns and operates a Cafe Odyssey theme restaurant
business at its leased premises (the "Leased Premises") situated in the retail
center commonly known as Denver Entertainment & Fashion Pavilions located at 500
16th Street, Denver, Colorado, as more particularly described in that certain
Shopping Center Lease executed by Denver Pavilions, L.P., as Landlord, and
Grantor (f/k/a Hotel Discovery, Inc.) dated May 12, 1998 (the "Lease"), which
Leased Premises constitutes a portion of the real property legally described on
Exhibit A attached hereto (the "Shopping Center Property");
NOW, THEREFORE, Grantor, in consideration of the premises and for the
purpose of securing payment of the Note and the other Secured Indebtedness, does
hereby grant, bargain, sell, and convey unto Trustee, in trust forever, that
property (collectively, the "Mortgaged Property"), whether now owned or
hereafter acquired by Grantor, situated in the County of Denver, State of
Colorado and more particularly described as follows:
All furniture, fixtures, equipment, inventory and other
articles of tangible personal property and intangible personal property
(including, but not limited to all permits and the non-exclusive right
to use the name "Cafe Odyssey," trademarks and service marks of
Grantor, but expressly excluding any rights with respect to the Lease)
of every kind and nature whatsoever, now or hereafter located in or
upon or arising from the Leased Premises (or the Grantor's business
operated thereon) or any part thereof and used or usable in
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connection with any present or future operation of the Leased Premises
and now owned or hereafter acquired by Grantor (collectively, the
"FF&E"); and
TOGETHER with all accounts receivable, income, profits and
cash flow (collectively, the "Cash Flow"), of each and every kind, now
or hereafter relating to or arising from the ownership and operation of
the FF&E and the improvement situated thereon; and
TOGETHER with all products and proceeds of the foregoing
(including, without limitation, insurance proceeds) and all other or
greater rights and interests of every nature in the foregoing property
and Grantor's rights to the possession or use thereof and income
therefrom, whether now owned or subsequently acquired by Grantor.
ALL OF THE FOREGOING property is sometimes hereinafter
collectively referred to as the "Mortgaged Property."
Notwithstanding the foregoing, if the granting of the foregoing liens
or any other interests to the Beneficiary under this Deed of Trust in and to any
Cash Flow of the Grantor shall be prohibited by or otherwise constitute a
violation of the Lease, then to the extent thereof, such Cash Flow which creates
a violation of the Lease by inclusion in this Deed of Trust shall be deemed
excluded therefrom and from the definition of "Mortgaged Property;" provided,
however, that no third party other than the landlord under the Lease shall have
the right to assert, enforce or benefit from this provision.
The filing of this Indenture shall constitute a fixture filing in the
office where it is filed and a carbon, photographic or other reproduction of
this document may also be filed as a financing statement:
Name and Address of Cafe Odyssey, Inc
Debtor and Record 4801 West 81st Street
Owner of Real Estate Suite 112
Bloomington, Minnesota 55437
Name and Address of Fairview Partners
Secured Party: 5807 McCray Court
Cincinnati, OH 45224
Description of the Types See above
(or items) of property
covered by this
financing statement:
Description of real estate See Exhibit A attached hereto
to which all or a part
of the collateral is
attached or upon which
it is located:
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Name and Address of record owner Denver Pavilions L.P.
of the above-referenced real estate: 511-16th Street
Suite 210
Denver, CO 80202
Some of the above described collateral is or is to become fixtures upon
or minerals and mineral rights located upon the real estate described above, and
this financing statement is to be filed for record in the public real estate
records.
IN TRUST NEVERTHELESS, and time being of the essence hereof, that upon
the occurrence of an Event of Default by Grantor as defined in the Loan
Agreement, Beneficiary or the legal holder of the Note may file notice with
Trustee declaring such default and their election and demand that the Mortgaged
Property be advertised for sale and sold in accordance with the statutes of the
State of Colorado; and thereupon, Trustee shall sell and dispose of the
Mortgaged Property (en masse or in separate parcels, as Trustee deems best), and
all the right, title, and interest of Grantor, its successors and assigns, in
and to the Mortgaged Property, at public auction at the front door of the
courthouse in the county of Colorado wherein the Mortgaged Property is situated,
or on said premises as may be specified in the notice of such sale, for the
highest and best price the same will bring in cash, after public notice having
been previously given of the time and place of such sale in accordance with the
statutes of the State of Colorado by advertisement weekly in some newspaper of
general circulation at that time published in said county in Colorado wherein
the Mortgaged Property is situated; copies of said notice shall be mailed in
accordance with the statutes of the State of Colorado governing sales of real
estate by Trustee, and Trustee shall make and give to the purchaser of the
Mortgaged Property at said sale a Certificate of Purchase, describing such
Mortgaged Property sold, the sum paid therefor, and the time when the purchaser
or other persons entitled thereto) shall be entitled to a deed therefor, unless
the same shall be redeemed as provided by law; and Trustee shall, upon demand by
the party holding the said Certificate of Purchase, the time for redemption
having expired, make, execute, and deliver to such party a deed to the Mortgaged
Property purchased in accordance with the statutes of the State of Colorado; and
Trustee shall, out of the proceeds of said sale, after first paying and
retaining all fees, charges, and costs incident to such foreclosure sale,
including, without limiting the generality of the foregoing, all attorneys' fees
and court costs and charges of every character, pay to Beneficiary or the legal
holder of the Note the principal, interest, and additional sums due on the Note,
including, without limiting the generality of the foregoing, late charges,
default interest charges, and fees due under the Note, according to the tenor
and effect thereof, and all monies advanced by Beneficiary or the legal holder
of the Note for insurance, taxes, assessments, repairs, maintenance, utilities,
maintenance fees, mechanics' liens or any other liens on the Mortgaged Property
of whatever nature, or for the payment of Grantor's debts, and any other Secured
Indebtedness with interest thereof from the date of the default at an interest
rate per annum equal to the default interest rate set forth in the Note,
rendering the overplus, if any, first unto any subsequent lienors in accordance
with the statutes of the State of Colorado, and then unto Grantor, which sale
and deed so made shall be a perpetual bar, both in law and equity, against
Grantor and all other persons claiming the Mortgaged Property, or any part
thereof, by, from, through, or under Grantor, or any of them.
It shall be specifically authorized herein that Beneficiary or the
legal holder of the Note or their representatives may bid at the foreclosure
sale held by Trustee or by Order of Court and any bid by Beneficiary or the
legal holder of the Note may take into consideration anticipated taxes,
assessments, insurance premiums, utilities, maintenance expense, management
costs, repairs title expense, and the then going real estate agent's commission,
all or any of which may be incurred during the period of redemption or in order
to subsequently sell or otherwise dispose of the Mortgaged Property after the
issuance of the
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Public Trustee's deed, and such amounts shall not be deemed an overplus
distributable to junior lienors or Grantor.
This Deed of Trust shall secure, as a part of the Secured Indebtedness,
without limiting the generality of the foregoing, any additional advances and
any expenditures made by Beneficiary or the legal holder of the Note (as
determined in their sole discretion) for all sums due under any lien prior to
this Deed of Trust, which sums Beneficiary and/or the legal holder of the Note
elect to pay in order to protect their security interest in the Mortgaged
Property, together with any taxes, special assessments, insurance premiums,
costs of completing the construction of any unfinished improvements, cost of
storage of materials for incorporation into the improvements and purchased with
funds disbursed under the Note, utility charges, delinquent payments fees,
attorneys' fees, and any other expenditures made or charges incurred by
Beneficiary and/or the legal holder of the Note, with interest thereon from the
date of such expenditure at an interest rate per annum equal to the default
interest rate set forth in the Note, all of which sums may be added to
Beneficiary's or the legal holder of the Note's bid at any foreclosure sale held
pursuant hereto. Grantor hereby assigns to Beneficiary and the legal holder of
the note any right Grantor may have by reason of any prior encumbrance on the
mortgaged property or by law or otherwise to cure any default under said prior
encumbrance, provided, however, neither Beneficiary nor the legal holder shall
have any obligation to do so, and further assigns to Beneficiary and the legal
holder of the Note any right Grantor may have by reason of contract or by law or
otherwise to make any or all of the payments described in this paragraph or
which Beneficiary or the legal holder of the Note is permitted to make on behalf
of Grantor by the terms of this Deed of Trust, provided, however, neither
Beneficiary nor the legal holder shall have any obligation to do so. Further, it
shall be lawful for the holder of the Certificate of Purchase covering the
Mortgaged Property to make any of the foregoing expenditures, and upon filing
receipts evidencing payment of the same with Trustee or the Sheriff or other
person lawfully conducting said sale and issuing said Certificate of Purchase,
such payments or expenditures shall thereupon become an additional claim or
indebtedness in favor of the holder of such Certificate of Purchase and against
the Mortgaged Property so sold. Before redemption can be made from such
foreclosure sale, the party redeeming shall be required to pay, in addition to
the amounts specified in said Certificate of Purchase, with interest thereon as
provided herein, the further and additional amounts represented by the foregoing
expenditures, together with interest thereon from the date of such expenditure
at an interest rate per annum equal to the default interest rate set forth in
the Note. In the event of default or foreclosure and if, in the opinion of
Beneficiary or the legal holder of the Note, it is necessary to complete
construction of any incomplete improvements or make repairs, alterations, or
renovations to the Mortgaged Property in order to preserve, protect, or prevent
waste, or change the manner of utilization or nature of occupancy, Beneficiary
shall have the right, but not the obligation, to proceed as it deems advisable
and Grantor does hereby appoint Beneficiary as its attorney-in-fact to do such
things as are hereby provided, and this power of attorney is coupled with an
interest in the Mortgaged Property and is irrevocable.
AND, Grantor represents, warrants, and covenants to Beneficiary, their
successors and assigns, that Grantor is now in a solvent condition; and no
bankruptcy or insolvency proceedings are pending or contemplated by Grantor, or
to Grantor's knowledge, threatened against Grantor. Grantor, for itself and for
its heirs, successors, and assigns, covenants and agrees to and with the Trustee
and Beneficiary that at the time of the ensealing and delivery of these
presents, it is well seized in fee simple title to the Mortgaged Property and
has good right, full power and lawful authority to grant, bargain, sell, convey,
transfer, assign and mortgage the Mortgaged Property. Grantor further warrants
that the Mortgaged Property is free and clear of all liens, security interest,
encumbrances and other title matters, including, without limitation, mechanic'
liens, materialmen's liens and liens for special assessments for work completed
or under construction on the date hereof except for those matters set forth in
Exhibit "B" attached hereto and incorporated herein by this
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reference ("Permitted Exceptions"); and that Grantor will warrant and forever
defend the title to the Mortgaged Property against the claims of all persons
whomsoever claiming or to claim the same or any part thereof, subject to the
Permitted Exceptions, and the Mortgaged Property in the quiet and peaceable
possession of said Trustee, its successors and assigns, against all and every
person or persons lawfully claiming or to claim the whole or any part thereof,
the Grantor shall and will warrant and forever will defend. The foregoing
warranty of title shall survive the foreclosure of this Deed of Trust and shall
inure to the benefit of and be enforceable by any person who may acquire title
to the Mortgaged Property pursuant to foreclosure.
GRANTOR further represents, warrants and covenants to Trustee and
Beneficiary, their successors and assigns, that Grantor is duly organized and
validly existing and in good standing under the laws of the State of Minnesota
with the power to own the Mortgaged Property and carry on its business as is now
being conducted; that the Note, this Deed of Trust and all other documents or
instruments securing payment of the Note constitute the legal, valid, and
binding obligations of Grantor, and any other party thereto and are enforceable
in accordance with their terms; that Grantor's execution and delivery of and
performance under, the Note, this Deed of Trust, and all other documents or
instruments securing payment of the Note have been duly authorized by all
requisite action under Grantor's governing documents and are not in
contravention of such documents, the law or any indenture agreement, or
undertaking to which Grantor or any general partner of Grantor is a party or by
which Grantor or any general partner of Grantor is bound.
AND upon payment in full of the Secured Indebtedness, the Beneficiary
shall cause the release of this Deed of Trust and all liens and security
interests created hereunder.
GENERAL COVENANTS
THE GRANTOR FURTHER COVENANTS AND AGREES AS FOLLOWS:
1. Existence. Grantor will continuously maintain its existence as a
Minnesota corporation as currently constituted.
2. Payment. Grantor will make prompt payment, as the same become due,
of all installments of principal, interest, and other charges becoming due under
the Note or this Deed of Trust.
3. Maintenance; Repairs. The Grantor shall keep and maintain the
Mortgaged Property in materially good condition, repair and operating condition
free from any waste or misuse, and will comply with all requirements of law,
municipal ordinances and regulations, restrictions and covenants affecting the
Mortgaged Property and its use, and will promptly repair or restore any
building, improvements or structures now or hereafter located on the Premises
which may become damaged or destroyed to their condition prior to any such
damage or destruction.
4. Payment of Taxes and Prior Encumbrances. During the continuance of
the Secured Indebtedness or any part thereof, the Grantor will pay or cause to
be paid all taxes and assessments levied on the Mortgaged Property when due
(including water and or water company stock assessments and periodic condominium
or owner association dues or assessments, if any) and all amounts due or to
become due on account of principal and interest on prior encumbrances, if any,
and upon demand will furnish Beneficiary receipted bills evidencing such
payment.
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Nothing in this Section 4 shall require the payment or discharge of any
obligations imposed upon the Grantor by this Section so long as the Grantor
shall diligently and in good faith and at its own expense contest the same or
the validity thereof by appropriate legal proceedings which shall operate to
prevent the collection thereof or other realization thereon and the sale or
forfeiture of the Mortgaged Property or any part thereof to satisfy the same;
provided, however, that during such contest the Grantor shall, at the reasonable
request of the Beneficiary, provide security satisfactory to the Beneficiary,
assuring the discharge of the Grantor's obligation under this Section and of any
additional charge, penalty or expense arising from or incurred as a result of
such contest; and provided further, however, that if at any time payment of any
obligation imposed upon the Grantor by this Section shall become necessary to
prevent the delivery of a tax deed conveying the Land or any portion thereof
because of nonpayment, then the Grantor shall pay the same in sufficient time to
prevent the delivery of such tax deed.
5. Insurance. Grantor shall keep the Mortgaged Property insured, in
such amounts and with such companies as Beneficiary shall approve in writing,
against loss by fire, lightning, windstorm, tornado, flood, boiler explosion or
malfunction, any other casualty, and public liability with loss of rents and
such other causes as may be required by Beneficiary with loss payable to the
Beneficiary hereunder as its interest may appear. Grantor will deliver to the
Beneficiary the policy or policies of insurance, with a standard mortgage clause
in favor of Beneficiary, as further security for the Secured Indebtedness. In
the event of loss or damage, the proceeds of all such insurance may be applied
to the payment of the Secured Indebtedness if an Event of Default has then
occurred and is continuing or otherwise shall be applied to the repair,
rebuilding, or replacement of the improvements damaged or destroyed. The said
proceeds of such insurance, if to be applied to repair, rebuilding or
replacement of improvements, shall be retained in the possession of the
Beneficiary until the said repair, rebuilding or replacement, in the sole
judgment of the Beneficiary, is complete.
6. Advances by Beneficiary for Taxes, Insurance or Prior Encumbrances.
In the case of the refusal or neglect of the Grantor to thus insure and deliver
the policies of insurance or to pay such taxes or assessments or amounts due or
to become due on prior encumbrances, if any, the Beneficiary may procure said
insurance or pay such taxes, assessments or amount due upon prior encumbrances,
if any, and all monies thus paid, with interest thereon at 18% per annum, shall
become so much additional indebtedness secured by this Deed of Trust, and shall
be paid out of the proceeds of sale of the Property aforesaid if not otherwise
paid by the Grantor. Such failure to so insure or to pay such amounts shall be a
violation or breach of the covenants of this Deed of Trust.
7. Possession of the Property-Appointment of Receiver. In the case of
any default or breach under the terms and covenants of the Secured Indebtedness
or this Deed of Trust, the Beneficiary shall at once become entitled to the
possession, use and enjoyment of the Mortgaged Property and to the issues and
profits therefrom, from the date of the accruing of such right and continuing
during the pendency of foreclosure proceedings including any period of
redemption. Such possession shall at once be delivered to the Beneficiary or the
holder of the Certificate of Purchase upon demand. Upon refusal, the delivery of
such possession may be enforced by the Beneficiary or the holder of the
Certificate of Purchase by an appropriate civil suit or proceeding. The
Beneficiary or the holder of the Certificate of Purchase shall be entitled to
appointment of a receiver for the Mortgaged Property to receive the rents,
issues and profits therefrom from and after any such default, including the time
covered by foreclosure proceedings and the period of redemption, as a matter of
right without regard to the solvency or insolvency of the Grantor or of the then
owner of said Property and without regard to the value of the Mortgaged
Property. Such receiver may be appointed by any court of competent jurisdiction
upon ex-parte application and without notice, notice being
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hereby expressly waived. All profits, income and revenue from said Mortgaged
Property shall be applied by such receiver to the payment first of the fees and
costs of such receivership proceeding and then to the Secured Indebtedness. The
balance remaining, if any, shall be disposed of in accordance with the orders
and directions of the court. The fees of any such receiver, attorneys' fees
incurred in appointment of the receiver and administration of the receivership
estate and all costs, including court costs, shall be the liability of the
Grantor, its successors and assigns, shall be due and payable upon demand and
shall become so much additional indebtedness secured hereby. Failure to pay said
fees and costs upon demand shall be in breach of the terms of this Deed of
Trust.
8. Alienation or Encumbrance of the Mortgaged Property. In the event
the Grantor shall sell, convey, alienate, encumber or dispose of the Mortgaged
Property described in this Deed of Trust, any part thereof or any interest
therein (including, but not limited to, outright conveyance; conveyance or
alienation of any interest in the Mortgaged Property or any part thereof; and
alienation of any interest in the Mortgaged Property by lease or rental
agreement with option to purchase) the entire Secured Indebtedness, irrespective
of the maturity dates expressed therein, shall, at the option of the Beneficiary
and without delay or notice, immediately become due and payable; provided,
however, that notwithstanding the foregoing, the Grantor may purchase additional
FF&E for use with respect to the Leased Premises and grant purchase money liens
thereon and may also sell and replace worn out and obsolete equipment in the
ordinary course of business. If the Beneficiary does not accelerate the
obligation, the Beneficiary, as a condition precedent to its waiver of its right
to accelerate the obligation, (a) may require the party to whom the Mortgaged
Property or any part thereof is alienated to assume this Deed of Trust and the
Secured Indebtedness; (b) may charge a transfer fee (which shall be in addition
to title insurance, abstracting, credit reports, surveys, attorneys' fees and
other charges pertaining to the transfer or sale); and/or (c) may increase the
interest rate on the Secured Indebtedness to a rate in excess of the rate set
forth in the Note secured by this Deed of Trust.
In the event the Grantor shall further encumber the Mortgaged Property
described in this Deed of Trust by creation of a lien or encumbrance junior to
the lien of this Deed of Trust without the prior written consent of the
Beneficiary hereunder or otherwise then as permitted herein, the entire Secured
Indebtedness secured by this Deed of Trust, irrespective of the maturity dates
expressed therein, shall at the option of the Beneficiary and without delay or
notice become immediately due and payable. Nothing in this paragraph shall,
however, limit the ability of the Beneficiary hereunder to withhold consent to
alienation of the Mortgaged Property as set forth in the paragraph immediately
above.
9. Security Agreement; Financing Statement; Personalty. Grantor and
Beneficiary agree that this deed of trust shall constitute a Security Agreement
within the meaning of the Colorado Uniform Commercial Code (hereinafter in this
paragraph referred to as the "Code") with respect to any Mortgaged Property
constituting personal property affixed to, located upon, arising from or used in
conjunction with the Leased Premises, which property may or may not be deemed to
form a part of the above-described real property or may or may not constitute a
"fixture" together with all replacements of such property, substitutions for
such property, additions to such property, and the proceeds thereof, any claims
resulting from damage to or destruction of any or all of such property,
including without limitation, claims under policies of insurance relating
thereto, and the proceeds of such claims (said property and the replacements,
substitutions and additions thereto and the proceeds thereof being hereinafter
collectively referred to as the "Collateral"). A security interest in and to the
Collateral is hereby granted to the Beneficiary and all of Grantor's right,
title and interest therein are hereby assigned to the Beneficiary, all to secure
payment of the Secured Indebtedness and to secure performance of the terms,
covenants and provisions hereof. In the event of a default under this deed of
trust, Beneficiary, pursuant to Section 4-9-501(4), C.R.S., shall have the
option
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of proceeding with respect to the Mortgaged Property as to both real and
personal property in accordance with its rights and remedies with respect to the
Mortgaged Property, in which event the default provisions of the Code shall not
apply. In such event, Beneficiary's bid at public trustee's or sheriff's sale
shall be deemed to be a bid for both the real and personal property. The
certificate of purchase, deed or certificate of redemption (whichever is or are
appropriate) issued in such sale shall also constitute a bill of sale for the
said personal property. Grantor shall not be entitled to redeem either the real
or personal property separate one from the other. The parties agree that, in the
event the Beneficiary shall elect to proceed with respect to the Collateral
separately from the real property described herein, five (5) days' notice of the
sale of the Collateral shall be reasonable notice. The reasonable expenses of
retaking, holding, preparing for sale, selling and the like incurred by the
Beneficiary shall include, but not be limited to, reasonable attorneys, fees and
legal expenses incurred by Beneficiary.
10. Time of the Essence. Time is of the essence of this Deed of Trust
and in the event the Grantor or the Grantor's successors or assigns fail to pay
Beneficiary any and all sums due according to the terms of the Note and this
Deed of Trust and fail to observe and perform any of the covenants and
agreements contained in said Note or this Deed of Trust, Beneficiary may, at its
option, declare said Note and the remaining indebtedness owing thereunder due
and payable, and any tax assessments, insurance premiums, or other advances made
or paid by said Beneficiary and not repaid by the Grantor shall become an
additional indebtedness hereunder and secured by this Deed of Trust.
11. Condemnation. If the Mortgaged Property or any part thereof shall
be condemned and taken under the power of eminent domain, all damages and awards
for the portion of the Mortgaged Property so taken shall be applied to the
repayment of the Secured Indebtedness if an Event of Default has occurred and is
continuing or otherwise shall be applied to the rebuilding, repair and
restoration of the lands and/or improvements damaged by said taking. Any balance
of such damages or awards remaining after application as above set forth shall
be paid over to the Grantor.
12. Inspection. Beneficiary shall have the right, at all reasonable
times, to inspect the Mortgaged Property.
13. Hazardous Substances. The Grantor warrants, covenants and
represents that to the best of its knowledge, after reasonable inquiry and
investigation, there does not exist in or under the Leased Premises any
pollutant, toxic or hazardous waste or substance, or any other material the
release or disposal of which is regulated by any law, regulation, ordinance or
code related to pollution or environmental contamination, other than those used
in the normal course of Grantor's business and disposed of properly and except
as disclosed on Schedule 1 attached hereto, and, that no part of the Leased
Premises was ever used for any industrial or manufacturing purpose or as a dump,
sanitary landfill, or gasoline service station, and that there exists on the
Leased Premises no storage tanks, electrical transformers or other equipment
containing PCBs or material amounts of asbestos. The Grantor represents that it
has received no summons, citations, directives, letters or other communications,
written or oral, from any federal, state or local agency or department
concerning the storing, releasing, pumping, pouring, emitting, emptying or
dumping or the presence of any pollutant, toxic or hazardous waste or substance
on the Leased Premises.
The Grantor covenants and agrees that it shall not, nor shall it permit
others to, use the Leased Premises for the business of generating, transporting,
storing, treating or disposing of any pollutant, toxic or hazardous waste or
substance, other than those used in the normal course of Grantor's business and
disposed of properly, nor shall it either take or fail to take any action which
may result in a release of any hazardous
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substance from or onto the Leased Premises. The Grantor further covenants and
agrees that it shall comply, and maintain the Leased Premises in compliance,
with any and all federal, state and local hazardous waste and other
environmental laws, rules, regulations and orders. In addition to all rights of
access granted the Beneficiary pursuant to this Indenture, during the term of
the loan contemplated hereby, the Beneficiary, or any authorized agent,
contractor or representative of the Beneficiary, is hereby irrevocably
authorized to enter upon the Leased Premises at any time and from time to time
for the purpose of performing inspections, taking soil borings or other borings,
or conducting any other tests or procedures on, in or about the Leased Premises
as the Beneficiary deems necessary or appropriate to determine whether any
hazardous or toxic substances, including without limitation asbestos or PBS, are
present on, under or about the Leased Premises.
The Grantor agrees to indemnify and to hold the Beneficiary harmless
from any and all claims, causes of action, damages, penalties, and costs
(including, but not limited to, attorneys' fees, consultants' fees and related
expenses) which may be asserted against, or incurred by, the Beneficiary
resulting from or due to release of any hazardous substance or waste on the
Leased Premises or arising out of any injury to human health or the environment
by reason of the condition of or past activity upon the Leased Premises. The
Grantor's duty to indemnify and hold harmless includes, but is not limited to,
proceedings or actions commenced by any person (including, but not limited to,
any federal, state, or local governmental agency or entity) before any court or
administrative agency. The Grantor further agrees that pursuant to its duty to
indemnify under this section, the Grantor shall indemnify the Beneficiary
against all expenses incurred by the Beneficiary as they become due and not
waiting for the ultimate outcome of the litigation or administrative proceeding.
The Grantor's obligations to indemnify and hold the Beneficiary harmless
hereunder shall survive repayment of the Secured Indebtedness and satisfaction
or foreclosure of this Deed of Trust.
14. Forbearance; Substitution of Collateral; Partial Releases. It is
understood and agreed that the Beneficiary may, at any time, without notice to
any person, grant to the Grantor any indulgences of forbearance, grant any
extension of time for payment of any indebtedness secured hereby, or allow any
change or changes, substitution or substitutions, of or for any of the Property
described in this Deed of Trust or any other collateral which may be held by
Beneficiary. Beneficiary's action in so doing shall in no way affect the
liability of the Grantor, any endorsers of the indebtedness secured hereby, or
any other person liable for the payment of said indebtedness, nor shall it in
any way affect or impair the lien of this Deed of Trust upon the remainder of
the Leased Premises and upon other collateral which is not changed or
substituted. It is also understood and agreed that the Beneficiary and the
Trustee may, at any time, without notice to any person, release any portion of
the Leased Premises described in this Deed of Trust or any other collateral
which may be held as security for the payment of the Secured Indebtedness either
with or without consideration for such release or releases. Such releases shall
not in any manner affect the liability of the Grantor, all endorsers and all
other persons who are or shall be liable for the payment of said indebtedness,
nor shall said releases in any manner affect, disturb or impair the validity and
priority of this Deed of Trust, for the full amount of the indebtedness
remaining unpaid together with all interest and advances which shall become
payable, upon the remainder of the Leased Premises and other collateral which is
unreleased. It is distinctly understood and agreed by the Grantor and the
Beneficiary that any release or releases may be made by the Beneficiary and the
Trustee without the consent or approval of any person or persons whomsoever.
15. Prosecution or Defense of Actions Affecting Obligation or Lien. If
Grantor fails to perform the covenants and agreements contained in this Deed of
Trust or if any action or proceeding is commenced which affects Beneficiary's
interest in the Mortgaged Property or the validity of the Note secured hereby
including, but not limited to, actions in eminent domain, code enforcement,
insolvency or arrangements or
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proceedings involving a bankrupt or a decedent's estate, or actions by parties
claiming an interest senior and paramount to the lien of this Deed of Trust, or
if it becomes necessary for Beneficiary to file an action to uphold or defend
the lien of this Deed of Trust, then Beneficiary shall have the right to employ
its own legal counsel to defend, pursue, compromise, negotiate, or prevent any
such litigation and all sums expended by Beneficiary including reasonable
attorneys' fees and other costs in connection with any such legal action shall
become so much additional indebtedness secured by this Deed of Trust. The
failure of the Grantor to pay to Beneficiary all such sums expended immediately
upon demand shall entitle the Beneficiary, at its option, to declare the entire
indebtedness to be at once due and payable.
16. Foreclosure and Attorneys' Fees. In the case of default in any of
the payments of principal or interest, according to the tenor and effect of the
Note secured hereby, or of a breach or violation of any of the covenants or
agreements contained herein, or incorporated herein, then the whole of said
principal sum secured hereby, all interest thereon, and the equity participation
amount, if any, set forth in the Note secured hereby, may at once or at any time
thereafter, at the option of the Beneficiary, become due and payable. If
foreclosure is performed by the Public Trustee, attorneys' fees of a reasonable
amount for services in the supervision of said foreclosure proceedings together
with all other costs of said foreclosure proceedings and as provided herein
shall be added by the Public Trustee to the indebtedness secured hereby to be
satisfied from the proceeds of the sale of said Mortgaged Property. If
foreclosure is made through the courts, reasonable attorneys' fees shall be
taxed by the court as a part of the costs of such foreclosure proceedings and
such fees and costs shall be treated as a part of the indebtedness secured
hereby to be satisfied from the proceeds of the sale of said Mortgaged Property.
17. Severability. In the event that any provision or clause of this
Deed of Trust conflicts with applicable law, such conflicts shall not affect or
invalidate other provisions of this Deed of Trust which can be given effect
without the conflicting provision. To this end, the provisions of this Deed of
Trust are declared to be severable.
18. Successors Bound; Terms; Captions. The covenants herein contained
shall bind, and the benefits and advantages hereof shall inure to the respective
heirs, executors, administrators, successors and assigns of the parties hereto.
Whenever used herein, the singular number shall include the plural and
conversely, and the use of any gender shall be applicable to all genders.
Whenever the term "Beneficiary" is used herein, it shall include the legal
holder or holders of the Note or of the indebtedness secured hereby or, where
applicable, the holder of a Certificate of Purchase. Assignment or negotiation
of the Note secured hereby shall also be an assignment of the Beneficiary's
interest under this Deed of Trust. In particular, without limitations, the word
"Note" or the words "Promissory Note" shall be singular or plural as the case
may be. The captions and headings of this Deed of Trust are for convenience only
and are not to be used to interpret or define the terms of this document.
19. Governing Law. Except for matters relating to the validity and/or
enforcement of the lien and security interest of the Beneficiary in the
Mortgaged Property, which shall be determined in accordance with the applicable
laws of the State in which the affected portion of the Mortgaged Property is
situated, with the laws of each such State applying to the Mortgaged Property in
such State, the internal laws (other than conflict laws) of the State of Ohio
shall govern the validity, interpretation, construction and performance of this
Deed of Trust and all other documents relating to the transactions contemplated
hereby.
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IN WITNESS WHEREOF, this Deed of Trust has been executed by the Grantor
as of the day and year first above written.
GRANTOR:
CAFE ODYSSEY, INC.
By: s/Stephen D. King
-----------------------------------------
Name and Title: C.E.O.
-----------------------------
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this 24th day of
August, 1999, by Stephen D. King the Chief Executive Officer of Cafe Odyssey,
Inc., a Minnesota corporation, for and on behalf of said corporation.
s/ Gail T. King
--------------------------------
Notary Public
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EXHIBIT A
(LEGAL DESCRIPTION OF SHOPPING CENTER PROPERTY)
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EXHIBIT B
TO
FIRST DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FINANCING STATEMENT
PERMITTED EXCEPTIONS
1. Financing Statement filed with the Colorado Secretary of Sate
on February 2, 1999 as document number 19992006190 from Cafe
Odyssey as Debtor to Ecolab, Inc. as Secured Party.
2. Financing Statement filed with the Colorado Secretary of State
on March 19, 1999 as document number 19992015504 from Hotel
Discovery Inc. and D.B.A. Cafe Odyssey to Icelease Partners,
Ltd. as Secured Party and Bank One Kentucky, North America as
Assigned Party.