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EXHIBIT "C"
No.
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DEED OF TRUST
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FROM
NEVADA GOLD & CASINOS, INC.
TO
THE PUBLIC TRUSTEE
FOR THE USE OF
,TRUSTEE
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STATE OF COLORADO,
Gilpin County
I hereby certify that this instrument was filed
for record in my office at o'clock,
__ M.
________________, 19__, and is duly
recorded in book ____________ , page ___
Film No. _______________, Reception No. ______
Clerk and Recorder
By:
Deputy
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DEED OF TRUST
THIS DEED OF TRUST is made this _____ day of May, 1995 between Nevada Gold &
Casinos, Inc., a Nevada corporation (Borrower), whose address is 3040 Post Oak
Boulevard, Suite 675, Houston, Texas 77056, and the Public Trustee of the
County in which the Property (see paragraph 1) is situated (Trustee); for the
benefit of River Oaks Trust Company, Trustee (Lender), whose address is 2001
Kirby, Houston, Texas 77019 (having been appointed Trustee pursuant to that
certain Note Participation Agreement ("Participation Agreement") effective of
even date herewith, to serve in such capacity on behalf of numerous individual
lenders, all as controlled by the terms of the Participation Agreement.).
Borrower and Lender covenant and agree as follows:
1. Property in Trust. Borrower, in consideration of the indebtedness herein
recited and the trust herein created, hereby grants and conveys to
Trustee in trust, with power of sale, the following described property
(the "Property") located in Gilpin County, State of Colorado;
Lots 5, 6, 7 and 8, Block 5 1, City of Black Hawk, Gilpin
County, Colorado.
2. Note: Other Obligations Secured. This Deed of Trust is given to
secure to Lender:
A. The repayment of the indebtedness evidenced by Borrower's note
(Note) of even date herewith, in the principal sum of up to Three
Hundred Fifty Thousand ($350,000.00) U.S. Dollars, with interest on
the unpaid principal balance from the date of advancement, until
paid, at the rate of twelve (12%) percent per annum, with principal
and interest payable at ________________ or such other place as the
Lender may designate, on or before May ___, 1996, as set forth in the
Note and also documented by that certain Loan Agreement of even date
herewith between Borrower and Lender, and that Certain Note
Participation Agreement of even date herewith between Borrower,
Lender and numerous other parties by way of addendum thereto;
Borrower is to pay to Lender a default rate of interest of eighteen
percent (18%) per annum or the maximum legal rate, whichever is less,
if the principal and accrued interest is not paid when due.
Borrower has the right to prepay the principal amount outstanding
under the Note plus accrued and unpaid interest on the amount prepaid,
in whole or in part, at any time without penalty;
B. The Payment of all other sums, with interest thereon at eighteen
percent (18%) per annum, disbursed by Lender in accordance with this
Deed of Trust to protect the security of this Deed of Trust; and
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C. The performance of the covenants and agreements of Borrower herein
contained.
3. Title. Borrower covenants that Borrower owns and has the right to grant
and convey the Property, and warrants title to the same, subject to
general real estate taxes for the current year, easements of record or in
existence, and recorded declarations, restrictions, reservations and
covenants, if any, as of this date.
4. Payment of Principal and Interest. Borrower shall promptly pay when due
the principal of and interest on the indebtedness evidenced by the Note,
and late charges as provided in the Note and shall perform all of
Borrower's other covenants contained in the Note.
5. Application of Payments. All payments received by Lender under the terms
hereof shall be applied by Lender first to amounts disbursed by Lender
pursuant to paragraph 9 (Protection of Lender's Security), and the
balance in accordance with the terms and conditions of the Note.
6. Prior Mortgages and Deeds of Trust; Charges; Liens. Borrower shall
perform all of Borrower's obligations under any prior deed of trust and
any other prior liens. Borrower shall pay all taxes, assessments and
other charges, fines and impositions attributable to the Property which
may have or attain a priority over this Deed of Trust, and leasehold
payments or ground rents, if any, by Borrower making payment when due,
directly to the payee thereof. Despite the foregoing, Borrower shall not
be required to make payments otherwise required by this paragraph if
Borrower, after notice to Lender, shall in good faith contest such
obligation by, or defend enforcement of such obligation in, legal
proceedings which operate to prevent the enforcement of the obligation or
forfeiture of the Property or any party thereof.
7. Property Insurance. Borrower shall keep the improvements now existing or
hereafter erected on the Property insured against loss by fire or hazards
included within the term "extended coverage" in an amount at least equal
to the lesser of (1) the insurable value of the Property or (2) an amount
sufficient to pay the sums secured by this Deed of Trust as well as any
prior encumbrances on the Property. All of the foregoing shall be known
as "Property Insurance".
The insurance carrier providing the insurance shall be qualified to write
Property Insurance in Colorado and shall be chosen by Borrower subject to
Lender's right to reject the chosen carrier for reasonable cause. All
insurance policies and renewals thereof shall include a standard mortgage
clause in favor of Lender, and shall provide that the insurance carrier
shall notify Lender at least ten (10) days before cancellation,
termination or any material change of coverage. Insurance
policies shall be furnished to Lender at or before closing. Lender shall
have the right to hold the policies and renewals thereof.
In the event of loss, Borrower shall give prompt notice to the insurance
carrier and Lender. Lender may make proof of loss if not made promptly
by Borrower.
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Insurance proceeds shall be applied to restoration or repair of the
Property damaged, provided such restoration or repair is economically
feasible and the security of this Deed of Trust is not thereby impaired.
If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance proceeds
shall be applied to the sums secured by this Deed of Trust, with the
excess, if any, paid to Borrower. If the Property is abandoned by
Borrower, or if Borrower fails to respond to Lender within 30 days
from the date notice is given in accordance with paragraph 16 (Notice) by
Lender to Borrower that the insurance carrier offers to settle a claim
for insurance benefits, Lender is authorized to collect and apply the
insurance proceeds, at Lender's option, either to restoration or repair
of the Property or to the sums secured by this Deed of Trust.
Notwithstanding anything herein to the contrary, if under paragraph 19
(Acceleration; Foreclosure; Other Remedies) the Property is acquired by
Lender, all right, title and interest of Borrower in and to any insurance
policies and in and to the proceeds thereof resulting from damage to the
Property prior to the sale or acquisition shall pass to Lender to the
extent of the sums secured by this Deed of Trust immediately prior to
such sale or acquisition.
All of the rights of Borrower and Lender hereunder with respect to
insurance carriers, insurance policies and insurance proceeds are subject
to the rights of any holder of a prior deed of trust with respect to said
insurance carriers, policies and proceeds.
8. Preservation and Maintenance of Property. Borrower shall keep the
Property in good repair and shall not commit waste or permit impairment
or deterioration of the Property and shall comply with the Provisions of
any lease if this Deed of Trust is on a leasehold. Borrower shall
perform all of Borrower's obligations under any declarations, covenants,
bylaws, rules or other documents governing the use, ownership or
occupancy of the Property.
9. Protection of Lender's Security. If Borrower fails to perform the
covenants and agreements contained in this Deed of Trust, or if a default
occurs in a prior lien, or if any action or proceeding is commenced which
materially affects Lender's interest in the Property, then Lender, at
Lender's option, with notice to Borrower if required by law, may make
such appearances, disburse such sums and take such action as is necessary
to protect Lender's interest, including, but not limited to, disbursement
of reasonable attorneys' fees and entry upon the Property to make
repairs. Borrower hereby assigns to Lender any right Borrower may have
by reason of any prior encumbrance on the Property or by law or otherwise
to cure any default under said prior encumbrance.
Any amounts disbursed by Lender pursuant to this paragraph 9, with
interest thereon, shall become additional indebtedness of Borrower
secured by this Deed of Trust. Such amounts shall be payable upon notice
from Lender to Borrower requesting payment thereof, and Lender may
bring suit to collect any amounts so disbursed plus default interest.
Nothing contained in this paragraph 9 shall require Lender to incur any
expense or take any action hereunder.
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10. Inspection. Lender may make or cause to be made reasonable entries upon
and inspection of the Property, provided that Lender shall give Borrower
notice prior to any such inspection specifying reasonable cause therefor
related to Lender's interest in the Property.
11. Condemnation. The proceeds of any award or claim for damages, direct or
consequential, in connection with any condemnation or other taking of the
Property, or part thereof, or for conveyance in lieu of condemnation, are
hereby assigned and shall be paid to Lender. However, all of the
rights of Borrower and Lender hereunder with respect to such proceeds are
subject to the rights of any holder of a prior deed of trust.
If the Property is abandoned by Borrower, or if, after notice by Lender
to Borrower that the condemnor offers to make an award or settle a claim
for damages, Borrower fails to respond to Lender within 30 days
after the date such notice is given, Lender is authorized to collect and
apply the proceeds, at Lender's option, either to restoration or repair
of the Property or the sums secured by this Deed of Trust.
12. Borrower Not Released. Extension of the time for payment or modification
of amortization of the sums secured by this Deed of Trust granted by
Lender to any successor in interest of Borrower shall not operate to
release, in any manner, the liability of the original Borrower, nor
Borrower's successors in interest, from the original terms of this Deed
of Trust. Lender shall not be required to commence proceedings against
such successor or refuse to extend time for payment or otherwise modify
amortization of the sums secured by this Deed of Trust by reason of any
demand made by the original Borrower nor Borrower's successors in
interest.
13. Forbearance by Lender Not a Waiver. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by law,
shall not be a waiver or preclude the exercise of any such right or
remedy.
14. Remedies Cumulative. Each remedy provided in the Note and this Deed of
Trust is distinct from and cumulative to all other rights or remedies
under the Note and this Deed of Trust or afforded by law or equity, and
may be exercised concurrently, independently or successively.
15. Successors and Assigns Bound, Joint and Several Liability, Captions.
The covenants and agreements herein contained shall bind, and the rights
hereunder shall inure to the respective successors and assigns of Lender
and Borrower, subject to the provisions of paragraph 24 (Transfer of
the Property; Assumption). All covenants and agreements of Borrower
shall be joint and several. The captions and headings of the paragraphs
in this Deed of Trust are for convenience only and are not to be used to
interpret or define the provisions hereof.
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16. Notice. Except for any notice required by law to be given in another
manner, (a) any notice to Borrower provided for in this Deed of Trust
shall be in writing and shall be given and be effective upon (1) delivery
to Borrower or (2) mailing such notice by certified mail, return receipt
requested, addressed to Borrower at Borrower's address stated herein or
at such other address as Borrower may designate by notice to Lender as
provided herein, and (b) any notice to Lender shall be in writing and
shall be given and be effective upon (1) delivery to Lender or (2)
mailing such notice by certified mail, return receipt requested, to
Lender's address stated herein or to such other address as Lender may
designate by notice to Borrower as provided herein. Any notice provided
for in this Deed of Trust shall be deemed to have been given to Borrower
or Lender when given in any manner designated herein.
17. Governing Law: Severability. The Note and this Deed of Trust shall be
governed by the law of Colorado. In the event that any provision or
clause of this Deed of Trust or the Note conflicts with the law, such
conflict shall not affect other provisions of this Deed of trust
or the Note which can be given effect without the conflicting provisions,
and to this end the provisions of the Deed of Trust and Note are declared
to be severable.
18. Borrower's Copy. Borrower acknowledges receipt of a copy of the Note
and of this Deed of Trust.
19. Acceleration: Foreclosure, Other Remedies. Except as provided in
paragraph 24 (Transfer of the Property; Assumption), upon Borrower's
breach of any covenant or agreement of Borrower in this Deed of Trust, or
upon any default in a prior lien upon the Property, at Lender's option,
all of the sums secured by this Deed of Trust shall be immediately due
and payable (Acceleration). To exercise this option, Lender may
invoke the power of sale and any other remedies permitted by law, Lender
shall be entitled to collect all reasonable costs and expenses incurred
in pursuing the remedies provided in this Deed of Trust, including, but
not limited to, reasonable attorneys' fees.
If Lender invokes the power of sale, Lender shall give written notice to
Trustee of such election. Trustee shall give such notice to Borrower of
Borrower's rights as is provided by law. Trustee shall record a copy of
such notice as required by law. Trustee shall advertise the time and
place of the sale of the Property, for not less than four weeks in a
newspaper of general circulation in each county in which the
Property is situated, and shall mail copies of such notice of such sale
to Borrower and other persons as prescribed by law. After the lapse of
such time as may be required by law, Trustee, without demand on Borrower,
shall sell the Property at public auction to the highest bidder for cash
at the time and place (which may be on the Property or any part thereof
as permitted by law) in one or more parcels as Trustee may think best and
in such order as Trustee may determine. Lender or Lender's designee may
purchase the Property at any sale. It shall not be obligatory upon the
purchaser at any such sale to see to the application of the purchase
money.
Trustee shall apply the proceeds of the sale in the following order: (a)
to all reasonable costs and expenses of the sale, including, but not
limited to, reasonable Trustee's and attorneys' fees and costs of
title evidence; (b) to all sums secured by this Deed of Trust; and (c)
the excess, if any, to the person or persons legally entitled thereto.
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20. Borrower's Right to Cure Default. Whenever foreclosure is commenced for
nonpayment of any sums due hereunder, the owners of the Property or
parties liable hereon shall be entitled to cure said defaults by paying
all delinquent principal and interest payments due as of the date of
cure, costs, expenses, late charges, attorneys' fees and other fees all
in the manner provided by law, or in the Note. Upon such payment, this
Deed of Trust and the obligations secured hereby shall remain in full
force and effect as though no Acceleration had occurred, and the
foreclosure proceedings shall be discontinued.
21. Assignment of Rents; Appointment of Receiver; Lender in Possession. As
additional security hereunder, Borrower hereby assigns to Lender the
rents of the Property; however, Borrower shall, prior to Acceleration
under paragraph 19 (Acceleration; Foreclosure; Other Remedies) or
abandonment of the Property, have the right to collect and retain such
rents as they become due and payable.
Lender or the holder of the Trustee's certificate of purchase shall be
entitled to a receiver for the Property after Acceleration under
paragraph 19 (Acceleration; Foreclosure; Other Remedies), and shall also
be so entitled during the time covered by foreclosure proceedings and the
period of redemption, if any and shall be entitled thereto as a matter of
right without regard to the solvency or insolvency of Borrower or of
the then owner of the Property, and without regard to the value thereof.
Such receiver may be appointed by any Court of competent jurisdiction
upon ex parte application and without notice -- notice being hereby
expressly waived.
Upon Acceleration under paragraph 19 (Acceleration; Foreclosure; Other
Remedies) or abandonment of the Property, Lender, in person, by agent or
by judicially appointed receiver, shall be entitled to enter upon, take
possession of and manage the Property and to collect the rents of the
Property including those past due. All rents collected by Lender
or the receiver shall be applied, first, to payment of the costs of
preservation and management of the Property, second, to payments due upon
prior liens, and then to the sums secured by this Deed of Trust. Lender
and the receiver shall be liable to account only for those rents actually
received.
22. Release. Upon payment of all sums secured by this Deed of Trust, Lender
shall cause Trustee to release this Deed of Trust and shall produce for
Trustee the Note. Borrower shall pay all costs of recordation and shall
pay the statutory Trustee's fees. If Lender shall not produce the Note
as aforesaid, then Lender, upon notice, in accordance with paragraph
16 (Notice) from Borrower to Lender, shall obtain at Lender's expense,
and file, any lost instrument bond required by Trustee or pay the cost
thereof to effect the release of this Deed of Trust.
23. Waiver of Exemptions. Borrower hereby waives all right of homestead and
any other exemption in the Property under state or federal law presently
existing or hereafter enacted.
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24. Transfer of the Property; Assumption. (a) The following events shall be
referred to herein as a "Transfer". A transfer or conveyance of title
(or any portion thereof, legal or equitable) of the Property
(or any part thereof or interest therein), the execution of a contract or
agreement creating a right to title (or any portion thereof, legal or
equitable) in the Property (or any part thereof or interest therein), or
an agreement granting a possessory right in the Property (or any portion
thereof), in excess of three (3) years. Not to be included as a Transfer
is the creation of a lien or encumbrance subordinate to this Deed of
Trust. Upon a transfer, all sums secured by this Deed of Trust, at
Lender's option, shall become immediately due and payable
("Acceleration").
(b) Upon such acceleration, Lender shall give Borrower notice of
acceleration in accordance with paragraph 16 (Notice). The notice shall
inform Borrower of the right to assert in the foreclosure proceeding the
nonexistence of a default or any other defense of Borrower to
Acceleration and sale. Such notice shall also provide a period of not
less than 10 days from the date the notice is given within which Borrower
may pay the sums declared due. If Borrower fails to pay such sums prior
to the expiration of such period, Lender may, without further notice
or demand on Borrower, invoke any remedies permitted by paragraph 19
(Acceleration; Foreclosure; Other Remedies). Lender shall give notice of
such Acceleration, within thirty (30) days after notice of any Transfer
is given to Lender by Borrower or Transferee in accordance with paragraph
16 (Notice). If Lender shall not give notice of such Acceleration within
such thirty (30) days, then lender will have no further right to such
Acceleration.
(c) If a Transfer occurs and should Lender not exercise Lender's option
pursuant to this paragraph 24 to Accelerate, Transferee shall be deemed
to have assumed all of the obligations of Borrower under this Deed of
Trust including all sums secured hereby whether or not the instrument
evidencing such conveyance, contract or grant expressly so provides.
This covenant shall run with the Property and remain in full force and
effect until said sums are paid in full.
(d) Should Lender not elect to Accelerate upon the occurrence of such
Transfer then, subject to (b) above, the mere fact of a lapse of time or
the acceptance of payment subsequent to any of such events, whether
or not Lender had actual or constructive notice of such Transfer, shall
not be deemed a waiver of Lender's right to make such election nor shall
Lender be estopped therefrom by virtue thereof. The issuance on behalf
of the Lender of a routine statement showing the status of the loan,
whether or not Lender had actual or constructive notice of such Transfer,
shall not be a waiver or estoppel of Lender's said rights.
NEVADA GOLD & CASINOS, INC.
By: H. Thomas Winn, President
STATE OF TEXAS
HARRIS COUNTY
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