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HomeMy WebLinkAboutC87-111 Estopel Certificate and Consent with Howard Airx 01aagz0625 C87-111_1; ESTOPPEL CERTIFICATE AND CONSENT THIS ESTOPPEL CERTIFICATE AND CONSENT (this "Certificate") is executed as of the 2% day of June, 1987, by THE COUNTY OF EAGLE, STATE OF COLOR O, a body politic and corporate, acting by and through its Board of County Commissioners (the "County"). A. The County owns, controls and operates the Eagle County Airport (the "Airport") located between the Towns of Eagle and Gypsum in the County of Eagle, State of Colorado. B. Pursuant to the terms and provisions of an instrument entitled "Fixed Base Operator Concession Agreement and Lease," dated August 1, 1986, between the County and Howard Air Services, Inc., a Colorado corporation ("Howard"), as amended (such Concession Agreement and Lease, as the same has been amended, is hereinafter referred to as the "Agreement"), the County granted to Howard a concession to operate as a fixed base operator at the Airport for the term and subject to the conditions set forth in the Agreement, and leased to Howard certain premises in connection therewith (the "Demised Premises"); a complete description of the Agreement is appended hereto as Exhibit A. C. Howard has applied to Textron Financial Corporation, a Delaware corporation ("Lender"), for a mortgage loan relating to the Demised Premises; in connection therewith, Howard is executing and delivering to Lender certain instruments and documents including: (i) A Promissory Note made by Howard to the order of Lender in the original principal amount of $1,500,000, substantially in the form appended hereto as Exhibit B; (ii) A Deed of Trust and Security Agreement from Howard to the Public Trustee of Eagle County, Colorado, substantially in the form appended hereto as Exhibit C; (iii) An Assignment of Leases and Rents and Other Income substantially in the form appended hereto as Exhibit D; (iv) An Assignment of Agreement substantially in - the form appended hereto as Exhibit E; and (v) Certain Uniform statements evidencing the under the provisions of the and documents. Commercial Code financing security interests granted above-described instruments The instruments and documents referred to in this paragraph C are collectively hereinafter referred to as the "Loan Documents." D. Lender will provide such financing only in the event that the County provides certain assurances to Lender regarding the Loan Documents. NOW, THEREFORE, for good and valuable consideration received by the County, the receipt and sufficiency of -which are hereby acknowledged, and in order to induce Lender to provide the aforesaid mortgage loan to Howard, the County represents, covenants and agrees as follows: 1. The County consents to each of the Loan Documents, and the exercise by Lender of its rights and remedies pursuant thereto, and, without limitation, agrees that the Loan Documents are in compliance with all conditions, requirements and limitations set forth in the Agreement. The exercise by Lender of its rights and remedies pursuant to the Loan Documents will not constitute a breach, violation or default under the Agreement. 2. The County recognizes and acknowledges that Lender, in closing and funding its loan to Howard, will rely on the representations, covenants and agreements of the County set forth herein, and it is understood and agreed that the rights and privileges of Lender hereunder will be assignable by Lender. -2- IN WITNESS WHEREOF, the County has executed this Certificate as of the day and year first above written. THE COUNTY OF EAGLE, STATE OF COLORADO County Commissioners Chairm of the Board of County Commissioners * Pro i"ern STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrumen as ackn wle�iged before me this 49�-6k day of June, 1987, by ( l.{f eS and Johnnette Phillips, as Chairman and Clerk, respectively, of the Board of County Commissioners, County of Eagle, State of Colorado. Pro Te Vn Witness my hand and official seal. My commission expires: /ToO 7 � �� � Notary Public -3- EXHIBIT A EE ESTOPPEL CERTIFICATE AND CONSENT (Description of the Agreement] The "Fixed Base Operator Concession Agreement and Lease .between The County of .Eagle, State of Colorado, and Howard Air Services, Inc.," dated August 1, 1986, recorded on June 3, 1987, in Book 463 at page 756 of the real property records of Eagle County, Colorado, as amended and supplemented by: (a) a Lease .Addendum and Modification recorded on June 10, 1987, in Book 464 at page 155 of the real property records of Eagle County, Colorado; (b) a Second Amendment and Modification to Fixed Base Operator Concession Agreement and Lease, dated June , 1987, between the County of Eagle, State of Colorado, and xoward Air Services, Inc.; and (c) an Estoppel Certificate and Agreement, dated June , 1987, executed by the County of Eagle, State of Colorado; an=Addendum #1 to Fixed Base Operator Concessions Agreement and Lease Agreement, Dated August 6,1986, recorded with the original Agreement. -4- EXHIBIT B TO -ESTOPPEL CERTIFICATE AND CONSENT [Attach Copy of Promissory Note] -5- J r bled: $1,500,000.00 1987 For value received, the undersigned (jointly and severally if more than one) promises to pay to the order of Textron Financial Corporation ("TFC") or order, the principal sum of $1,500,000.00, payable in 180 consecutive monthly installments of principal and interest beginning on the day of July, 1987 and continuing on the same date of each month thereafter through June 2002 (the "Maturity Date") at which date the entire unpaid principal balance and all accrued interest hereunder shall become immediately due and payable. The first 24 such installments (the "Initial Term") shall be payable in the amount of $17,275.69 each, which have been calculated on the basis of a fixed interest rate of 11.24% per annum over the Initial Term hereof. So long as there is then no event of default hereunder or under the Security Agreement hereinafter referred to, such interest rate shall be adjusted at the expiration of the Initial Term to TFC's then current fixed rate of interest for lending to third party borrowers over the remaining term of this Note (which adjusted rate of interest will be quoted to the undersigned not more than 60 days but not less than 30 days prior to the expiration of the Initial Term), provided, however, that no such adjustment shall be made at the expiration of the Initial Term, and the entire unpaid principal balance and all accrued interest hereunder shall then become immediately due and payble without premium or fee, if (a) the adjusted interest rate for the remaining term of this Note is unacceptable to the undersigned for any reason, or (b) any payments of principal or interest hereunder during the Initial Term have been received by TFC more than 15 days past due. This Note is the Note referred to in the Deed of Trust and Security Agreement dated the date hereof (the "Security Agreement"), is secured by the Property described therein, and is entitled to all of the rights and privileges provided therein, including rights of acceleration of this Note. Each payment hereunder shall be made in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment. The total interest rate charged hereunder shall not exceed the legal maximum. All calculations of interest shall be made on the basis of a 360 -day year comprised of twelve 30 -day months. Each payment made hereunder shall be credited first to the payment of any fees and expenses incurred by TFC and payable by the undersigned pursuant to the terms of the Security Agreement and/or the proposal letter of TFC dated April 14, 1987 which was accepted by the undersigned as of May 4, 1987; then to any accrued late charges; then to any accrued interest; and the remainder to outstanding principal. The undersigned reserves the right to prepay all, but not less than all, of the then outstanding principal on this Note, provided,, however, that (except as otherwise specifically provided herein) any such prepayment hereunder shall be made, together with all accrued interest and other sums owing hereunder, upon five (5) days prior written notice to TFC and payment of a fee equal to one percent (1%) of the principal balance prepaid. Unless otherwise directed by TFC all payments shall be made to, Textron Financial Corporation, NW9718, P.O. Box 1450, Minneapolis, MN 55485. c V ' d vd • -- - _ +amu 1 i1Vdd �� �l W��d� - The entire unpaid pri W pal amount, plus all accrued interest, shall become immediately due and payable if any amount due hereunder -or any of the Loan Documents (as defined in the Security Agreement) remains unpaid for a period of fifteen (15) days, or if there is a default not cured within any applicable grace period under any of the Loan Documents, or any other agreement guaranteeing or securing payment of this obligation. Al amounts due by reason of acceleration in any such event of default shall bear interest at the rate of 18% per annum. In addition, any amount owing hereunder or under the Loan Documents which is past due fifteen (15) days (other than amounts due by reason of acceleration) shall accrue late charges from its due date through ,_the date ,of payment in full equal to 3% of the amount owing, monthly. The undersigned and all other parties who may be liable (whether as endorsers,'.guarantors, sureties or otherwise) for payment of any sum or sums due or to become due under the terms of this Note, waive diligence, presentment, demand, protest and notice of any kind whatsoever and agree to pay all costs incurred by the Holder in enforcing its rights under this Note, including reasonable attorney's fees, and they do hereby consent to any number of renewals or extensions of the time for payment of this Note. No extension of --time for payment of this Note,_ made by any agreement with any person now or hereafter liable for payment of this Note, shall operate to release, discharge, modify, change or affect the original liability under this Note, either in whole or in part, of the undersigned. No delay or failure by the Holder hereof in exercising any right, power, privilege or remedy shall be deemed to be a waiver of the same or any part thereof, nor shall any single or partial exercise thereof or any failure to exercise the same in any instance preclude any future exercise thereof, or exercise of any other right, power, privilege or remedy, and the rights and privileges provided for hereunder are cumulative and not exclusive. This Note is made as of the date first written above and shall be construed according to and governed by the laws of the State of Colorado. ATTEST: (SEAL) By: Print Name: Secretary 16865 HOWARD AIR SERVICES, INC. By: Print Name: Print Title: S 'd S0:91 33N3Q r -�1 W 0,:� j (7,") GUARANTY To: TEXTRON FINANCIAL CORPORATION, having its principal place of business at 1410 Hospital Trust Plaza, Providence, Rhode Island 02403 ("TFC"). 1. Guaranty of Pa ant and Performance of Obli ations. In consideration of TFC extending credit or other financial accommodations to HOWARD AIR SERVICES, INC. (the "Customer"), the undersigned (the "Guarantor"), jointly and severally if more than one, hereby unconditionally guarantee to TFC that the Customer will duly and punctually pay or strictly perform all indebtedness, obligations and liabilities, direct or indirect, matured or unmatured, primary or secondary, certain or contingent, of the Customer to TFC now or hereafter owing or incurred (including without limitation costs and expenses incurred by TFC in attempting to collect or enforce any of the foregoing) which are chargeable to the Customer either by law or under the terms of any of the "Loan Documents" as defined in the Deed of Trust and security Agreement, including a Promissory Note in the principal amount of $1,500,000.00 between the Customer and TFC, all dated as of the date hereof, accrued in each case to the date of payment hereunder (collectively, the "Obligations" and individually, an "Obligation"). This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance by the Customer of the Obligations and not of their collectibility only and is in no way conditioned upon any requirement that TFC first attempt to collect any of the Obligations from the Customer or resort to any security or other means of obtaining payment of any of the Obligations which TFC now has or may acquire after the date hereof, or upon any other contingency whatsoever. Upon any default by the Customer in the full and punctual payment and performance of the Obligations, the liabilities and obligations of the Guarantor hereunder shall, at the option of TFC, become forthwith due and payable to TFC without demand or notice of any nature, all of which are expressly waived by the Guarantor. Payments by the Guarantor hereunder may be required by TFC on any number of occasions. 2. Guarantor's Further Agreements to Pay. The Guarantor further agrees, as the principal obligor and not as a guarantor only, to pay to TFC forthwith upon demand, in funds immediately available to TFC, all reasonable costs and expenses (including court costs and legal expenses) incurred or expended by TFC in connection with this Guaranty and the enforcement hereof, together with interest on amounts recoverable under this Guaranty from the time such amounts become due until payment at the rate of 18% per annum. 3. Unlimited Liability _ -Of Guarantor. The liability of the Guarantor hereunder shall be unlimited. 4. Termination of Guaranty. The obligations of the Guarantor under this Guaranty shall continue in full force and effect until the full discharge and complete satisfaction of all of the Customer's Obligations to TFC. 5. TFC's Freedom to Deal with Customer and Other Parties. TFC shall be at liberty, without giving notice to or obtaining the assent of the Guarantor and without relieving the Guarantor of any liability hereunder, to deal with the Customer and with each other party who now is or after the date hereof becomes liable in any manner for any of the Obligations, in such manner as 3�N 3Q I riQ TFC, in its sole discretion, deems fit, and to this end, the Guarantor gives to TFC full authority in its sole discretion to,do any or all of the following things: (a) extend credit, make loans and afford other financial accommodations to the Customer at such times, in such amounts and on such terms as TFC may approve, (b) vary the terms and grant extensions or renewals of any present or future indebtedness or obligation to TFC of the Customer or of any such other party, (c) grant time, waivers and other indulgences in respect thereto, (d) vary, exchange, release or discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security or guaranty or other means of obtaining payment of any of the Obligations which TFC now has or acquires after the date hereof, (e) accept partial payments from the Customer or any such other party, (f) release or discharge, wholly or partially, any endorser or guarantor, and (g) compromise or make any settlement or other arrangement with the Customer or any such other party. 6. Unenforceability of Obligations Against Customer: Invaliditv of Security or Other Guaranties. If, for any reason, the Customer has no legal existence or is under no legal obligation to discharge any of the Obligations undertaken or purported to be undertaken by it or on its behalf, or if any of the moneys included in the Obligations have become irrecoverable from the Customer by operation of law or for any other reason, this Guaranty shall nevertheless be binding on the Guarantor to the same extent as if the Guarantor at all times had been the principal debtor and obligor on all such Obligations. This Guaranty shall be in addition to any other guaranty or other security for the Obligations, and it shall not be prejudiced or rendered unenforceable by the invalidity of any such other guaranty or security. 7. Waivers by Guarantor. The Guarantor waives: notice of acceptance hereof, notice of any action taken or omitted by TFC in reliance hereon, and any requirement that TFC be diligent or prompt in making demands hereunder, giving notice of any default by the Customer or asserting any other right of TFC hereunder. The Guarantor also irrevocably waives, to the fullest extent permitted by law, all defenses which at any time may be available in respect of the Guarantor's obligations hereunder by virtue of any homestead exemption, statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in effect. S. No Contest with TFC. So long as any Obligation remains unpaid or undischarged, the Guarantor will not, by paying any sum recoverable hereunder (whether or not demanded by TFC) or by any means or on any other ground, claim any setoff or counterclaim against the Customer in respect of any liability of the Guarantor to the Customer or, in proceedings under the Bankruptcy Code or insolvency proceedings of any nature, prove in competition with TFC in respect of any payment hereunder or be entitled to have the benefit of any counterclaim or proof of claim or dividend or payment by or on behalf of the Customer or the benefit of any other security for any Obligation which, now or hereafter, TFC may hold or in which it may have any share. 9. Demands and Notices. Any demand on or notice to the Guarantor shall be in writing and shall be effective when handed to the Guarantor or left at or mailed or sent by telecommunication device to the Guarantor's usual or last -known address. e 10. Amendments. Waivers etc. No provision of this Guaranty can be changed, waived, discharged or terminated except by an instrument in writing signed by TFC and the Guarantor expressly referring to the provision of this Guaranty to which such instrument relates; and no such waiver shall extend to, affect or impair any right with respect to any Obligation which is not expressly dealt with therein. No course of dealing or delay or omission on the part of TFC in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. 11. Miscellaneous Provisions. This Guaranty is intended to take effect as a sealed instrument to be governed by and construed in accordance with the laws of the State of Colorado and shall inure to the benefit of TFC and its successors in title and assigns, and shall be binding on the Guarantor and the Guarantor's successors in title, assigns and legal representatives. IN WITNESS WHEREOF, the Guarantor has executed this Guaranty or has caused this Guaranty to be executed on its behalf by an officer or other person thereunto duly authorized on the day of June, 1987. GUARANTOR: CHARLES J. HOWARD 8y: (L.S.) Address: (NOTARIZATIONS] 18935 GUARANTOR: (Mrs. Charles J.] Howard Address: EXHIBIT C (7, TO ESTOPPEL CERTIFICATE AND CONSENT Copy of Deed of Trust and Security Agreement] OlaagxO625 DEED OF TRUST AND SECURITY AGREEMENT (THIS DOCUMENT SECURES FUTURE ADVANCES TO FINANCE CONSTRUCTION OF IMPROVEMENTS ON THE ENCUMBERED REAL PROPERTY) THIS DEED OF TRUST AND SECURITY AGREEMENT (this "Deed of Trust") is given the day of June, 1987, by the Grantor named below to the Trustee named below, for the use and benefit of the Beneficiary named below. ARTICLE I a PARTIES, PROPERTY, AND DEFINITIONS The following terms and references shall have the meanings indicated: 1.1 Grantor: HOWARD AIR SERVICES, INC., a Colorado corporation, whose legal address is 17190 Beaver Springs, Houston, Texas 77090, together with any future owner of the Property or any part thereof or interest therein. 1.2 Beneficiary: TEXTRON FINANCIAL CORPORATION, a Delaware corporation, whose legal address is 1410 Hospital Trust Tower, Post Office Box 878, Providence, Rhode Island 02901, together with any future holder of the Note. 1.3 Trustee: The Public Trustee for the County of Eagle, State of Colorado. 1.4 Note: Grantor's promissory note of even date herewith, payable to the order of Beneficiary in the principal face amount of $1,500,000.00, the last payment under which is due fifteen years after the date hereof, unless such maturity date is accelerated; provided, however, under certain circumstances more fully described in the Note, the final maturity date may occur on the second anniversary of the date of this Deed of Trust. All terms and provisions of the Note are incorporated by this reference in this Deed of Trust. 1.5 Property: The land described in Exhibit A attached hereto and by this reference made a part hereof, together with the following: n (a) All buildings, structures, and improvements now or hereafter located thereon, as well as all rights of way, easements, and other appurtenances thereto; (b) All of Grantor's right, title and interest in any land lying between the boundaries of the land described in Exhibit A attached hereto and the center line of any adjacent street, road, avenue, or alley, whether opened or proposed; (c) All of Grantor's right, title, and interest, whether now owned or hereafter acquired, in any other parcel or tract of land which is situated within the boundaries of the Eagle County Airport (the "Airport") located between the Towns of Eagle and Gypsum in the County of Eagle, State of Colorado; (d) All water, ditch, well, and reservoir rights which are appurtenant to or which have been used in connection with the land described in Exhibit A attached hereto; (e) All minerals, crops, timber, trees, shrubs, flowers, and landscaping features now or hereafter located on, under or above the land described in Exhibit A attached -hereto; (f) All machinery, apparatus, equipment, fittings, fixtures (whether actually or constructively attached, and including all trade, domestic, and ornamental fixtures) now or hereafter located in, upon, or under the land described in Exhibit A attached hereto or improvements thereon and used or usable in connection with any present or future operation thereof, including but not limited to all heating, air- conditioning, freezing, lighting, laundry, incinerating and power equipment; engines; pipes; pumps; tanks; motors; conduits; switchboards; plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating, ventilating, cooking, and communications apparatus; boilers, water heaters, ranges, furnaces, and burners; appliances; vacuum cleaning systems; elevators; escalators; shades; awnings; screens; storm doors and windows; stoves; refrigerators; attached cabinets; partitions; ducts and compressors; rugs and carpets; draperies; and all additions thereto and replacements therefor; -2- n (g) All development rights associated with the land described in Exhibit A attached hereto, whether previously or subsequently transferred to the land described in Exhibit A attached hereto from other real property or now or hereafter susceptible of transfer from such land to other real property; (h) All awards and payments, including interest thereon, resulting from the exercise of any right of eminent domain or any other public or private taking of, injury to, or decrease in the value of, any of such property; and (i) All other or greater rights and interests of every nature in such property and in the possession or use thereof and income therefrom, whether now owned or hereafter acquired by Grantor. 1.6 Chattels: All goods, fixtures, equipment, build- ing and other materials, supplies, and other tangible personal property of every nature now or hereafter situated upon and now owned or hereafter acquired by Grantor and used, intended for use, or usable in the construction, development, or operation of the Property, together with all accessions thereto, replacements and substitutions therefor, and proceeds thereof. 1.7 Intangible Personalty: The right to use the trademark or trade name "Howard Air Services" and symbols or logos used in connection therewith, or any modifications or variations thereof, in connection with the operation of the improvements existing or to be constructed on the Property, together with all other accounts, contract rights and general intangibles (whether now owned or hereafter acquired, and including proceeds thereof) relating to or arising from Grantor's ownership, use, operation, leasing or sale of all or any part of the Property, specifically including but in no way limited to any right which Grantor may have or acquire to transfer any development rights from the Property to other real property, and any development rights which may be so transferred. 1.8 Agreement: The "Fixed Base Operator Concession Agreement and Lease between The County of Eagle, State of -3- Colorado, and Howard Air Services, Inc.," dated August 1, 1986, recorded on June 3, 1987, in Book 463 at page 756 of the real property records of Eagle County, Colorado, as amended and supplemented by: (a) a Lease Addendum and Modification recorded on June 10, 1987, in Book 464 at page 155 of the real property records of Eagle County, Colorado; (b) a Second Amendment and Modification to Fixed Base Operator Concession Agreement and Lease, dated June , 1987, between the County of Eagle, State of Colorado (the "County") and Grantor; and (c) an Estoppel Certificate and Agreement, dated June , 1987, executed by they County (the "Estoppel Certificate"). 1.9 Concession: The concession granted to Grantor under the provisions of the Agreement to operate as a fixed base operator at the Airport. 1.10 Leasehold Estate: The leasehold estate in and to the land described in Exhibit A attached hereto which is granted to Grantor under the provisions of the Agreement. 1.11 Guaranty: The Guaranty of even date herewith executed by Charles J. Howard and Cathryn Howard (collectively "Guarantors"), pursuant to which Guarantors have guaranteed the timely payment and performance of all obligations of Grantor under or pursuant to the Loan Documents. 1.12 Assignment of Leases: The Assignment of Leases and Rents and Other Income of even date herewith, from Grantor, as assignor, to Beneficiary, as assignee, pursuant *to which Grantor has assigned to Beneficiary certain leases, rentals, and other income from the Property. 1.13 Assignment: The Assignment of Agreement of even date herewith, from Grantor, as assignor, to Beneficiary, as assignee, pursuant to which Grantor has assigned to Beneficiary certain rights and interests of Grantor under and pursuant to the Agreement. 1.14 Loan Documents: The Note, this Deed of Trust, the Guaranty, the Assignment of Leases, the Assignment, and any financing statements executed in connection with any of such -4- instruments or documents, and each other instrument or document executed or delivered by Grantor as security for the Note or in connection with the transaction pursuant to which the Note has been executed and delivered. The term "Loan Documents" also includes all modifications, extensions, renewals, and replacements of each document referred to above. 1.15 Secured Obligations: All present and future obligations of Grantor to Beneficiary evidenced by or contained in the Loan Documents, whether stated in the form of promises, covenants, representations, warranties, Iconditions, or prohibitions or in any other form. If this Deed of Trust is foreclosed, either through Trustee or through the courts, the Secured Obligations shall include an amount equal to any prepayment fee or premium which would be payable under the terms of the Note if the Note were prepaid in full on the date of the foreclosure sale. ARTICLE II GRANTING CLAUSE 2.1 Grant to Trustee. As security for the Secured Obligations, Grantor hereby grants, bargains, sells, and conveys to Trustee: (a) the entire right, title, and interest of Grantor under and pursuant to the Agreement, including, but not limited to, the Concession and the Leasehold Estate; (b) the entire right, title, and interest of Grantor in and to "Parcel B" and "Parcel C," as those parcels are described and referred to in Article Three of the Agreement, whether now owned or hereafter acquired; and (c) any other rights or interests of Grantor in and to the Property, whether now owned or hereafter acquired. 2.2 Security Interest to Beneficiary. As additional security for the Secured Obligations, Grantor hereby grants to Beneficiary a security interest in the Chattels, the Intangible Personalty, and the rights and interests of Grantor arising under and pursuant to the Agreement, including, but not limited to, the Concession and the Leasehold Estate. To the extent any of the -5- collateral encumbered by such security interest may be or has been acquired with funds advanced by Beneficiary under the Loan Documents, this security interest is a purchase money security interest. ARTICLE III GRANTOR'S TITLE AND AUTHORITY 3.1 Grantor's Representations. Grantor warrants and represents to Beneficiary as follows: (a) The County of Eagle, State of Colorado (the "County"), has good and marketable fee title to the land legally described in Exhibit A attached hereto, subject only to those matters, if any, described in Exhibit B attached hereto.and by this reference made a part hereof. (b) The Agreement is in full force and effect in accordance with its terms; except as specifically described in the Estoppel Certificate, Grantor has paid in a timely manner all rentals and other sums which were due and payable under the Agreement at any time or for any period on or before the date of this Deed of Trust, and there are no defaults by Grantor or the County in the timely performance of their respective obligations pursuant to the Agreement; and, to the best of -Grantor's knowledge and belief, there are no events or circumstances which with notice or the passage of time, or both, would constitute a default by Grantor or the County in the timely payment or performance of their respective obligations pursuant to the Agreement. (c) Except as specifically described in the Estoppel Certificate, the Agreement constitutes the entire agreement between the County and Grantor relating to the Leasehold Estate and the operations of Grantor in and about the Airport. (d) Each of the rights afforded to Grantor under the Agreement to assign, transfer, encumber, pledge and otherwise hypothecate the Leasehold Estate also applies to the Concession. In the event of foreclosure or other exercise by Beneficiary of its rights under the instruments securing the Note, Beneficiary or any other purchaser at a foreclosure sale shall be entitled, in accordance with the provisions of the Agreement, to acquire and hold the Concession and to subsequently assign the same to a party or parties who acquire the Leasehold Estate and who satisfy all requirements of law applicable to the operation of a fixed base operation at the Airport. (e) Each of the representations made by the County in the Estoppel Certificate is true, accurate and complete in all material respects. (f) Grantor is the sole owner and holder of the Concession, and Grantor's rights and interests in and to the Concession are free and clear of all liens, claims, encumbrances, security interests, pledges and other matters affecting such rights and interests. (g) Grantor is the sole owner and holder of the Leasehold Estate, and Grantor's right, title, and interest in and to the Leasehold Estate are free and clear of all liens, claims, encumbrances, security interests, pledges, and other matters affecting title to the Leasehold Estate. (h) Grantor is the absolute owner of the Chattels and the Intangible Personalty, free of any liens, claims, encumbrances, security interests, pledges, and other matters affecting title to the Chattels and the Intangible Property. The warranties contained in this Section 3.1 shall survive for a period of five years after the date of any foreclosure sale held in connection with this Deed of Trust, and shall inure to the benefit of and be enforceable by any person who may acquire title to any of the Property encumbered hereby pursuant to any such foreclosure. 3.2 Waiver of Homestead and Other Exemptions. Grantor hereby waives all rights to any homestead or other exemption to which Grantor would otherwise be entitled under any present or future constitutional, statutory, or other provision of Colorado or federal law. -7- 3.3 Due Authorization. If Grantor is other than a natural person, then each individual who executes this document on behalf of Grantor represents and warrants to Beneficiary that such execution has been duly authorized by all necessary corpo- rate, partnership, or other action on the part of Grantor. ARTICLE IV GRANTOR'S COVENANTS 4.1 Payment of Note. Grantor will pay all principal, interest, and other sums payable under the Note, on the date when' such payment is due, without notice or demand. 4.2 Performance of Other Obligations. Grantor will promptly and strictly perform and comply with all other covenants, conditions, and prohibitions required of Grantor by the terms of the Loan Documents. 4.3 Performance of Agreement. Grantor will promptly and strictly perform each of the obligations of Grantor under and pursuant to the Agreement; in addition, and without limiting the foregoing provisions of this Section 4.3: (a) Grantor shall take any and all action necessary or required in order that the Agreement will remain in good standing and in full force and effect for the entire thirty- year term described in Article Two of the Agreement; (b) Grantor will not enter into any modification or amendment to the Agreement without first obtaining the written consent of Beneficiary; (c) Grantor will not surrender the Concession or the Leasehold Estate, nor shall Grantor take any action, or fail to take any action, which would impair, negate, or otherwise adversely affect the Concession or the Leasehold Estate, or the rights of Grantor under and pursuant to the Agreement; (d) Grantor shall not exercise its right of first refusal under Article Three of the Agreement without obtaining the prior written consent of Beneficiary; I 1, (7) -0 (e) Grantor shall furnish to Beneficiary, simultaneously with the delivery thereof to the County, a copy of any notices, demands, or other communications given or made by Grantor .with respect to the Agreement or the operations of Grantor at the Airport; and (f) Grantor shall furnish to Beneficiary, within five (5) days following the receipt thereof from the County, a copy of any notices, demands or other communications given or made by the County with respect to the Agreement or the operations of Grantor at the Airport. 4.4 Other Encumbrances. Grantor will promptly and strictly perform and comply with all covenants, conditions, and prohibitions required of Grantor in connection with any other encumbrance affecting the Property, or any interest of Grantor in the Property, the Chattels, or the Intangible Personalty, or any part thereof, regardless of whether such other encumbrance is superior or subordinate to the lien hereof. 4.5 Payment of Taxes. (a) Taxes. Grantor will pay, before delinquency, any taxes and assessments, general or special, which may be levied or imposed at any time against the Property, the Agreement or any interest of Grantor under and pursuant to the Agreement, the Chattels, or the Intangible Personalty. Within ten days after each payment of any such tax or assessment, Grantor will deliver to Beneficiary, without notice or demand, an official receipt for such payment. (b) Intangible Taxes. If by reason of any statutory or constitutional amendment or judicial decision adopted or rendered after the date hereof, any tax, assessment, or similar charge is imposed against the Note, against Beneficiary, or against any interest of Beneficiary in any real or personal property encumbered hereby, Grantor will pay such tax, assessment, or other charge before delinquency and will indemnify Beneficiary against all loss, expense, or diminution of income in connection therewith. In the event Grantor is unable to do so, either for economic reasons or because the legal provisions or decisions creating such tax, assessment or charge forbids Grantor from doing so, then the Note will, at Beneficiary's option, become due and payable in full upon 30 days' notice to Grantor. 4.6 Maintenance of Insurance. (a) Coverages Required. Grantor shall comply with all insurance requirements set forth in the Agreement, and shall cause each policy of insurance maintained by Grantor pursuant to the Agreement to name Beneficiary as an additional insured as its interest may appear. Without limiting the foregoing, Grantor will keep the Property and the Chattels insured with all risk replacement cost insurance with an agreed amount endorsement, rent insurance, flood risk insurance, war risk insurance (if available), builder's risk insurance (throughout the period of construction of any improvement on the Property), and such other kinds of insurance as Beneficiary may from time to time require, in amounts and form and with insurers satisfactory to Beneficiary. In addition, Grantor will maintain public liability insurance with respect to all activities on or relating to the Property, also in amounts and forms and with insurers satisfactory to Beneficiary. Each hazard insurance policy will provide that all losses are payable solely to Beneficiary pursuant to a New York Standard or equivalent mortgage endorsement, and each liability insurance policy will, without condition or restriction, name Beneficiary as an additional insured. All required policies will provide for 30 days' written notice to Beneficiary prior to the effective date of any cancellation. The original or a certified copy of each insurance policy will be delivered to Beneficiary, and such delivery will constitute an assignment to Beneficiary, as further security for the Secured Obligations, of all unearned premiums returnable upon cancellation of each such policy. (b) Renewal Policies. Not less, than 30 days prior to the expiration date of each insurance policy required -10- n pursuant to subsection 4.6(a) above, Grantor will deliver to Beneficiary an appropriate renewal policy (or a certified copy thereof), together with evidence satisfactory to Beneficiary that the applicable premium has been prepaid. (c) Application of Hazard Insurance Proceeds. Subject to the provisions of subsection 7.9(b) hereof, any insurance proceeds received by Beneficiary with respect to an insured casualty may, in Beneficiary's sole discretion, either (i) be retained and applied by Beneficiary toward payment of the Secured Obligations, or (ii) be paid over, in whole or in part and subject to such conditions as Beneficiary may impose, to Grantor to pay for repairs or replacements necessitated by the casualty; provided, that if all of the Secured Obligations have been performed or are discharged by the application of less than all of such insurance proceeds, then any remaining proceeds will be paid over to Grantor. Beneficiary will have no obligation to see to the proper application of any insurance proceeds paid over to Grantor, nor will any such proceeds received by Beneficiary bear interest or be subject to any other charge for the benefit of Grantor. Beneficiary may, prior to the application of insurance proceeds, commingle them with Beneficiary's own funds and otherwise act with regard to such proceeds as Beneficiary may determine in Beneficiary's sole discretion. (d) Successor's Rights. Any person who acquires title to the Property or the Chattels upon foreclosure hereunder will succeed to all of Grantor's rights under all policies of insurance maintained pursuant to this section. 4.7 Maintenance and Repair of Property and Chattels. Grantor will at all times maintain the Property and the Chattels in good condition and repair, will diligently prosecute the completion of any building or other improvement which is at, any time in the process of construction on the Property, and will promptly repair, restore, replace, or rebuild any part of the Property or the Chattels which may be affected by any casualty or any public or private taking or injury to the Property or the -11- Chattels. Grantor will comply with all statutes, ordinances, and other governmental or quasi -governmental requirements and private covenants relating to the ownership, construction, use, or operation of the Property, or relating to Grantor's exercise of any rights under the Agreement; provided, that so long as Grantor is not otherwise in default hereunder, Grantor may, upon providing Beneficiary with security reasonably satisfactory to Beneficiary, proceed diligently and in good faith to contest the validity or applicability of any such statute, ordinance, or requirement. Beneficiary and any person authorized by a Beneficiary may enter and inspect the Property at all reasonable times, and may inspect the Chattels, wherever located, at all reasonable times. 4.8 Performance of Lease Obligations. Grantor will perform promptly all of Grantor's obligations under or in connection with each present and future lease or sublease of all or any part of the Property. If Grantor receives at any time any written communication from the tenant under any such_ lease or sublease asserting a default by Grantor under such lease or sublease, or purporting to terminate or cancel such lease or sublease, Grantor will promptly forward a copy of such communication (and any subsequent communications relating thereto) to Beneficiary. 4.9 Eminent Domain; Private Damage. If all or any part of any property encumbered hereby is taken or damaged by eminent domain or any other public or private action, Grantor will notify Beneficiary promptly of the time and place of all meetings, hearings, trials, and other proceedings relating to such action. Beneficiary may participate in all negotiations and appear and participate in all judicial or arbitration proceedings concerning any award or payment which may be due as a result of such taking or damaging, and may, in Beneficiary's sole discretion, compromise or settle, in the names of both Grantor and Beneficiary, any claim for any such award or payment. Subject to the provisions of subsection 7.9(b) hereof, "any such -12- n award or payment is to be paid to Beneficiary and will be applied first to reimburse Beneficiary for all costs and expenses, including attorneys' fees, incurred by Beneficiary in connection with the ascertainment and collection of such award or payment, and the balance, if any, of such award or payment shall, in Beneficiary's sole discretion, either (a) be retained by Beneficiary and applied toward the Secured Obligations, or (b) be paid over, in whole or in part and subject to such conditions as Beneficiary may impose, to Grantor for the purpose of restoring, repairing, or rebuilding any part of the encumbered property affected by the taking or damaging. Beneficiary will have no duty to see to the application of any part of any award or payment released to Grantor. Grantor's duty to pay the Note in accordance with its terms and to perform the other Secured Obligations will not be suspended by the pendency or discharged by the conclusion of any proceedings for the collection of any such award or payment, and any reduction in the Secured Obligations resulting from Beneficiary's application of any such award or payment will take effect only when Beneficiary receives such award or payment. Subject to the provisions of subsection 7.9(b) hereof, if this Deed of Trust has been foreclosed prior to Beneficiary's receipt of such award or payment, Beneficiary may nonetheless retain such award or payment to the extent required to reimburse Beneficiary for all costs and expenses, including attorneys' fees, incurred in connection therewith, and to discharge any deficiency remaining with respect to the Secured Obligations. 4.10 Mechanics' Liens. Grantor will keep the Property and the Leasehold Estate free and clear of all liens and claims of liens by contractors, subcontractors, mechanics, laborers, materialmen, and other such persons, and will cause any recorded statement of any such lien to be released of record within 30 days after the recording thereof. Notwithstanding the preceding sentence, however, Grantor will not be deemed to be in default under this section if and so long as Grantor (a) contests -13- in good faith the validity or amount of any asserted lien and diligently prosecutes or defends an action appropriate to obtain a binding determination of the disputed matter, and (b) provides Beneficiary with such security as Beneficiary may require to protect Beneficiary against all loss, damage, and expense, including attorneys' fees, which Beneficiary might incur if the asserted lien is determined to be valid. 4.11 Defense of Actions. Grantor will defend, at Grantor's expense, any action, proceeding or claim which affects any property encumbered hereby or any interest of Beneficiary in such property or in the Secured Obligations, and will indemnify and hold Beneficiary harmless from all loss, damage, cost, or expense, including attorneys' fees, which Beneficiary may incur in connection therewith. 4.12 Expenses of Enforcement. Grantor will pay all costs and expenses, including attorneys' fees, which Beneficiary may incur in connection with any effort or action (whether or not litigation or foreclosure is involved) to enforce or defend Bene- ficiary's rights and remedies under any of the Loan Documents, including but not limited to all attorneys' fees and other expenses incurred by Beneficiary in securing title to or possession of, and realizing upon, any security for the Secured Obligations. 4.13 Financial Reports. Within 90 days after the end of each fiscal year of. Grantor, Grantor will furnish to Beneficiary Grantor's balance sheet and statement of earnings as of the end of and for the preceding fiscal year, in such detail as Beneficiary may require, accompanied by an unqualified opinion of independent certified public accounts satisfactory to Beneficiary confirming that such financial statement and state- ment of earnings have been prepared in accordance with generally accepted accounting principles consistently applied. 4.14 Priority of Leases. To the extent Grantor has the right, under the terms of any existing lease or sublease of all or any part of the Property, to make such lease or sublease sub- -14- ordinate to the lien hereof, Grantor will, at Beneficiary's request and Grantor's expense, take such action as may be required to effect such subordination. Conversely, Grantor will, at Beneficiary's request and Grantor's expense, take such action as may be necessary to subordinate the lien hereof to any future lease or sublease of all or any part of the Property designated by Beneficiary. 4.15 Inventories; Assembly of Chattels. Grantor will, from time to time at the request of Beneficiary, supply Beneficiary with a current inventory of the Chattels and the Intangible Personalty, in such detail as Beneficiary may require. Upon the occurrence of any event of default hereunder, Grantor will at Beneficiary's request assemble the Chattels and make them available to Beneficiary at any place designated by Beneficiary which is reasonably convenient to both parties. 4.16 Further Assurances; Estoppel Certificates. Grantor will execute and deliver to Beneficiary upon demand, and pay the costs of preparation and recording thereof, any further documents which Beneficiary may request to confirm or perfect the liens and security interests created or intended to be created hereby, or to confirm or perfect any evidence of the Secured Obligations. Grantor will also, within ten days after any request by Beneficiary, deliver to Beneficiary a signed and acknowledged statement certifying to Beneficiary, or to any proposed transferee of the.Secured Obligations (a) the balance of principal, interest, and other sums then outstanding under the Note, and (b) whether Grantor claims to have any offsets or defenses with respect to the Secured Obligations and, if so, the nature of such offsets or defenses. ARTICLE V OTHER COVENANTS 5.1 Waste and Alterations. Grantor will not commit or permit any waste with respect to the Property or the Chattels, nor will Grantor cause or permit any part of the Property, -15- including but not limited to any building, structure, parking lot, driveway, landscape scheme, timber, or other improvement, to be removed, demolished, or materially altered without the prior written consent of Beneficiary. 5.2 Zoning and Private Covenants. Grantor will not initiate, join in, or consent to any change in any zoning ordinance or classification, any change in the "zone lot" or "zone lots" (or similar zoning unit or units) presently comprising the Property, any transfer of development rights, any change in any private restrictive covenant, or any change in any other public or private restriction limiting or defining the uses which may be made of the Property or any part thereof, without the express written consent of Beneficiary. If under applicable zoning provisions the use of _all or any part of the Property is or becomes a nonconforming use, Grantor will not cause or permit such use to be discontinued or abandoned without the express written consent of Beneficiary. 5.3 Interference with Leases. Grantor will neither do nor neglect to do anything which may cause or permit the termination of any lease or sublease of all or any part of the Property, or cause or permit the withholding or abatement of any rent payable under any such lease or sublease. Except with the prior written consent of Beneficiary, Grantor will not (a) collect rent from all or any part of the Property for more than one month in advance, (b) modify any lease or sublease of all or any part of the Property, (c) assign the rents from the Property or any part thereof, or (d) consent to the cancellation or surrender of all or any part of any such lease or sublease. 5.4 Transfer of Property. Grantor will not convey, lease, or otherwise transfer or assign, either voluntarily or involuntarily, the Property or any part thereof or interests therein, or any rights or interests of Grantor under or pursuant to the Agreement, without the prior written consent of Beneficiary. -16- 5.5 Further Encumbrance of Property. Without the prior written consent of Beneficiary, Grantor will neither create nor permit any junior lien, encumbrance, security interest or pledge against the Property or any part thereof or any interest therein, or against any rights of Grantor under or pursuant to the Agreement. 5.6 Further Encumbrance of Chattels. Without the prior written consent of Beneficiary, Grantor will not create or permit any junior lien, security interest or other encumbrance against the Chattels. 5.7 Transfer or Removal of Chattels. Grantor will not sell, transfer or remove from the Property all, or any part of the Chattels, unless the items sold, transferred, or removed are simultaneously replaced with similar items of equal or greater value. 5.8 Change of Name. Grantor will not change the name under which Grantor does business, or adopt or begin doing business under any other name or assumed or trade name, without first notifying Beneficiary of Grantor's intention to do so and delivering to Beneficiary such executed modifications or supplements to this Deed of Trust (and to any financing statement which may 'be filed in connection herewith) as Beneficiary may require. 5.9 Improper Use of Property or Chattels. Grantor will not use the Property or the Chattels for any purpose or in any manner which violates any applicable law, ordinance, or other governmental requirement, the requirements or conditions of any insurance policy, any private covenant, or the terms and provisions of the Agreement. 5.10 Use of Proceeds. Grantor will not use any funds advanced by Beneficiary under the Loan Documents for any purpose other than (a) payment of the cost of labor, services, materials, and equipment used in the construction of improvements on the Property, and (b) such related purposes as may be or have been approved by Beneficiary in writing. -17- ARTICLE VI EVENTS OF DEFAULT Each of the following events will constitute a default under this Deed of Trust and under each of the other Loan Documents: 6.1 Failure to Pay Note. Grantor's failure to make any payment when due under the terms of the Note; 6.2 Violation of Other Covenants. Grantor's failure to perform or observe any other covenant, condition, or prohibition contained in this Deed of Trust or any of the other Loan Documents, and such failure shall continue for a period of thirty (30) days after written notice from Beneficiary; provided, however, such thirty -day grace period shall not apply to any of the events or occurrences described in Section 6.1 or Sections 6.4 through 6.6 hereof. 6.3 Violation of Agreement. Grantor's failure to pay or perform, in a timely manner, any of Grantor's obligations under or pursuant to the Agreement. 6.4 Misrepresentation or Breach of Warranty. Beneficiary's determination that any statement or warranty contained in any of the Loan Documents is untrue or misleading in any material respect; 6.5 Assertion of Priority. The assertion of any claim of priority over this Deed of Trust, by encumbrance, lien, or otherwise, unless Grantor within 30 days after such assertion either causes the assertion to be withdrawn or provides Beneficiary with such security as Beneficiary may require to protect Beneficiary against all loss, damage, or expense, including attorneys' fees, which Beneficiary may incur in the event such assertion is upheld; or 6.6 Dissolution, Insolvency, or Bankruptcy. The dissolution, termination, or liquidation of Grantor or of any other person or entity directly or indirectly liable for the Secured Obligations, or the making by any such person of any CIM assignment for the benefit of creditors, or the appointment of a receiver, liquidator, or trustee of the property of any such person, or the filing of any petition for the bankruptcy, reorganization, or arrangement of any such person pursuant to the federal Bankruptcy Code or any similar state or federal statute, or the adjudication of any such person as bankrupt or insolvent, or the death of either of the Guarantors. ARTICLE VII BENEFICIARY'S REMEDIES Immediately upon or any time after the occurrence of any event of default hereunder, Beneficiary may exercise any remedy available at law or in equity, including but not limited to those listed below and those listed in the other Loan Documents, in such sequence or combination as Beneficiary may determine in Beneficiary's sole discretion: 7.1 Performance of Defaulted Obligations. Beneficiary may make any payment or perform any other obligation -under the Loan Documents which Grantor has failed to make or perform, and Grantor hereby irrevocably appoints Beneficiary as the true and lawful attorney-in-fact for Grantor to make any such payment and perform any such obligation in the name of Grantor. All payments made and expenses (including attorneys' fees) incurred by Beneficiary in this connection, together with interest thereon at 18% per annum (the "Default Rate") from the date paid or incurred until repaid, will be part of the Secured Obligations and will be immediately due and payable by Grantor to Beneficiary. In lieu of advancing Beneficiary's own funds for such purposes, Beneficiary may use any funds of Grantor which may be in Beneficiary's possession. 7.2 Specific Performance and Injunctive Relief. Notwithstanding the availability of legal remedies, Beneficiary will be entitled to obtain specific performance, mandatory or prohibitory injunctive relief, or other equitable relief requiring Grantor to cure or refrain from repeating any default. -19- 7.3 Acceleration of Secured Obligations. Beneficiary may, without notice or demand, declare all of the Secured Obligations immediately due and payable in full. 7.4 Suit for Monetary Relief. With or without accelerating the maturity of the Secured Obligations, Beneficiary may sue from time to time for any payment due under any of the Loan Documents, or for money damages resulting from Grantor's default under any of the Loan Documents. 7.5 Possession of Property. Beneficiary may enter and take possession of the Property without seeking or obtaining the $ appointment of a receiver, may employ a managing agent for the Property, and may lease or rent all or any part of the Property, either in Beneficiary's name or in the name of Grantor, and may collect the rents, issues, and profits of the Property. Any revenues collected by Beneficiary under this section will be applied first toward payment of all expenses (including attorneys' fees) incurred by Beneficiary, together with interest thereon at the Default Rate from the date incurred until repaid, and the balance, if any, will be applied against the Secured Obligations. 7.6 Enforcement of Security Interests. Beneficiary may exercise all rights of a secured party under the Colorado Uniform Commercial Code with respect to the Chattels, the Intangible Personalty, and other collateral described in the financing statements executed pursuant hereto, including but not limited to taking possession of, holding, and selling the Chattels and enforcing or otherwise realizing upon any accounts and general intangibles. Any requirement for reasonable notice of the time and place of any public sale, or of the time after which any private sale or other disposition is to be made, will be satisfied by Beneficiary's giving of such notice to Grantor at least five days prior to the time of any public sale or the time after which any private sale or other intended disposition is to be made. 7.7 Foreclosure Against Property. Beneficiary may -20- foreclose this Deed of Trust, either by judicial action or through Trustee. Foreclosure through Trustee will be initiated by Beneficiary's filing of its notice of election and demand for sale with Trustee. Upon the filing of such notice of election and demand for sale, Trustee shall promptly comply with all notice and other requirements of the laws of Colorado then in force with respect to such sales, and shall give four weeks' public notice of the time and place of such sale by advertisement weekly in some newspaper of general circulation then published in the County or City and County in which the Property is located. Any sale conducted by Trustee pursuant to this section shall be held at the front door of the county courthouse for such County or City and County, or on the Property, or at such other place as similar sales are then customarily held in such County or City and County, provided that the actual place of sale shall be specified in the notice of sale. The proceeds of any sale under this section shall be applied first to the fees and expenses of the officer conducting the sale, and then to the reduction or discharge of the Secured Obligations; any surplus remaining shall be paid over to Grantor or to such other person or persons as may be lawfully entitled to such surplus. At the conclusion of any foreclosure sale, the officer conducting the sale shall execute and deliver to the purchaser at the sale a certificate of purchase which shall describe the property sold to such purchaser and shall state that upon the expiration of the applicable periods for redemption, the holder of such certificate will be entitled to a deed to the property described in the certificate. After the expiration of all applicable periods of redemption, unless the property sold has been redeemed by Grantor, the officer who conducted such sale shall, upon request, execute and deliver an appropriate deed to the holder of the certificate of purchase or the last certificate of redemption, as the case may be, and such deed shall operate to divest Grantor and all persons claiming under Grantor of all right, title, and interest, whether legal or equitable, in the property described -21- in the deed. Nothing in this section dealing with foreclosure procedures or specifying particular actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed to contradict or add to the requirements and procedures now or hereafter specified by Colorado law, and any such inconsistency shall be resolved in favor of Colorado law applicable at the time of foreclosure. 7.8 Appointment of Receiver. Beneficiary shall be entitled, as a matter of absolute right and without regard to the value of any security for the Secured Obligations or the solvency of any person liable therefor, to the appointment of a receiver for the Property upon ex parte application to any court of competent jurisdiction. Grantor waives any right to any hearing or notice of hearing prior to the appointment of a receiver. Such receiver and his agents shall be empowered (a) to take - possession of the Property and any businesses conducted by Grantor or any other person thereon and any business assets used in connection therewith, (b) to exclude Grantor and -Grantor's agents, servants, and employees from the Property, (c) to collect the rents, issues, profits, and income therefrom, (d) to complete any construction which may be in progress, (e) to do such maintenance and make such repairs and alterations as the receiver deems necessary, (f) to use all stores of materials, supplies, and maintenance equipment on the Property and replace such items at the expense of the receivership estate, (g) to pay all taxes and assessments against the Property and the Chattels, all premiums for insurance thereon, all utility and other operating expenses, and all sums due under any prior or subsequent encumbrance, and (h) generally to do anything which Grantor could legally do if Grantor were in possession of the Property. All expenses incurred by the receiver or his agents shall constitute a part of the Secured Obligations. Any revenues collected by the receiver shall be applied first to the expenses of the receivership, including attorneys' fees incurred by the receiver and by Beneficiary, together with interest thereon at the Default -22- Rate from the date incurred until repaid, and the balance shall be applied toward the Secured Obligations or in such other manner as the court may direct. Unless sooner terminated with the express consent of Beneficiary, any such receivership will continue until the Secured Obligations have been discharged in full, or until title to the Property has passed after foreclosure sale and all applicable periods of redemption have expired. 7.9 Special Provisions. It is understood that: (a) This Deed of Trust is executed upon the condition that no purchaser at any foreclosure sale shall acquire any right, title or interest in or to the Leasehold Estate hereby mortgaged, unless the said purchaser, or the person, firm or corporation to whom or to which such purchaser's right has been assigned, shall, in the instrument transferring to such purchaser or to such assignee the interest of tenant under said Leasehold Estate (or in a separate instrument), assume and agree to perform all of the terms, covenants and conditions of said Leasehold Estate required to be observed or performed on the part of Grantor, subject to the fact that no further or additional mortgage of said Leasehold Estate shall be made except in accordance with the provisions contained in Article Twelve of the Agreement, and that a duplicate original of said instrument containing such assumption agreement, duly executed and acknowledged by such purchaser or such assignee and in recordable form, is delivered to the County under said Leasehold Estate immediately after the consummation of such sale, or in any event, prior to taking possession of the premises demised thereby. (b) Beneficiary waives all right and option to retain and apply the proceeds of any insurance or the proceeds of any condemnation award toward payment of the sum secured by this Deed of Trust to the extent such proceeds are required for the demolition, repair, or restoration of the mortgaged premises in accordance with the provisions of the Agreement. (c) This Deed of Trust and all rights of the Beneficiary hereunder are, without the necessity for the -23- execution of any further documents, subject and subordinate to the County's rights under the Agreement hereby mortgaged, and subJect to the provision of Article Twelve of said Agreement, to the County's rights under said Agreement as said Agreement may be modified, amended, or renewed. Nevertheless, the holder of this Deed of Trust agrees from time to time upon request and without charge, to execute, acknowledge and deliver any instruments reasonably requested by the County under the Agreement hereby mortgaged to evidence the foregoing subordination. ARTICLE VIII MISCELLANEOUS PROVISIONS 8.1 Time of the Essence. Time is of the essence with respect to all provisions of the Loan Documents. 8.2 Joint and Several Obligations. If Grantor is more than one person or entity, then all persons or entities comprising Grantor are jointly and severally liable for all of the Secured Obligations. 8.3 Rights and Remedies Cumulative. Beneficiary's rights and remedies under each of the Loan Documents are cumulative of the right and remedies available to Beneficiary under each of the other Loan Documents and those otherwise available to Beneficiary at law or in equity. No act of Beneficiary shall be construed as an election to proceed under any particular provision of any Loan Document to the exclusion of any other provision in the same or any other Loan Document, or as an election of remedies to the exclusion of any other remedy which may then or thereafter be available to Beneficiary. 8.4 No Implied Waivers. Beneficiary shall not be deemed to have waived any provision of any Loan Document unless such waiver is in writing and is signed by Beneficiary. Without limiting the generality of the preceding sentence, neither Beneficiary's acceptance of any payment with knowledge of a default by Grantor, nor any failure by Beneficiary to exercise any remedy following a default by Grantor shall be deemed a -24- waiver of such default, and no waiver by Beneficiary of any particular default on the part of Grantor shall be deemed a waiver of any other default or of any similar. default in the future. 8.5 No Third Party Rights. No person shall be a third party beneficiary of any provision of any of the Loan Documents. All provisions of the Loan Documents favoring Beneficiary are intended solely for the benefit of Beneficiary, and no third party shall be entitled to assume or expect that Beneficiary will not waive or consent to modification of any such provision in Beneficiary's sole discretion. 8.6 Preservation of Liability and Priority. Without affecting the liability of Grantor or of any other person (except a person expressly released in writing) for payment and performance of all of the Secured Obligations, and without affecting the rights of Beneficiary with respect to any security not expressly released in writing, and without impairing in any way the priority of this Deed of Trust over the interests of any person acquired or first evidenced by recording subsequent to the recording hereof, Beneficiary may, either before or after the maturity of the Note, and without notice or consent: (a) release any person liable for payment or performance of all or any part of the Secured Obligations; (b) make any agreement altering the terms of payment or performance of all or any of the Secured Obligations; (c) exercise or refrain from exercising, or waive, any right or remedy which Beneficiary may have under any of the Loan Documents; (d) accept additional security of any kind for any of the Secured Obligations; or (e) release or otherwise deal with any real or personal property securing the Secured Obligations. Any person acquiring or recording evidence of any interest of any nature in the Property, the Chattels, or the Intangible Personalty shall be deemed, by acquiring such interest or recording any evidence thereof, to have agreed and consented to any or all such actions by Beneficiary. 8.7 Subrogation of Beneficiary. Beneficiary shall be -25- 8.7 Subrogation of Beneficiary. Beneficiary shall be subrogated to the lien of any previous encumbrance discharged with funds advanced by Beneficiary under the Loan Documents, regardless of whether such previous encumbrance has been released of record. 8.8 Notices. Any notice required or permitted to be given by Grantor or Beneficiary under any of the Loan Documents must be in writing and will be deemed given upon personal delivery or on the second business day after the mailing thereof, by registered or certified United States mail, postage prepaid, to the appropriate party at its address shown on the first page of this Deed of Trust. Either party may change such party's address for notices by giving notice to the other party in accordance with this section, but no such change of address will be effective as against any person without actual knowledge thereof. 8.9 Defeasance. Upon payment and performance in full of all of the Secured Obligations, Beneficiary will execute and deliver to Grantor such documents as may be required to release this Deed of Trust and Security Agreement of record. 8.10 Severability. Wherever possible, each 'provision of the Loan Documents shall be interpreted so as to be.effective and valid under Colorado law. If any provision of any Loan Document is, for any reason and to any extent, invalid or unenforceable, then neither the remainder of the Loan Document in which such provision appears, nor any other Loan Document, nor the application of the provision to other persons or in other circumstances, shall be affected by such invalidity or unenforceability. 8.11 Governing Law. This Deed of Trust shall be construed and enforced in accordance with the laws of the State of Colorado. -26- Signed and delivered as of the date first mentioned above. ATTEST: HOWARD AIR SERVICES, INC., a Colorado Corporation By: Secretary Title: (Corporate Seal) -27- STATE OF ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 1987, by as and as Secretary of Howard Air Services, Inc., a Colorado corporation. My commission expires Witness my hand and official seal. Notary Public CK -10 EXHIBIT A to DEED OF TRUST AND SECURITY AGREEMENT (Legal Description) EXHIBIT B to DEED OF TRUST AND SECURITY AGREEMENT (Exceptions to Warranty of Title) EXHIBIT D TO ESTOPPEL CERTIFICATE AND CONSENT [Attach Copy of Assignment of Leases and Rents and Other Income] -7- 0laagw0620 ASSIGNMENT OF LEASES AND RENTS AND OTHER INCOME THIS ASSIGNMENT is given as of the day of June, 1987, by HOWARD AIR SERVICES, INC., a Colorado corporation ("Assignor") whose address is 17190 Beaver Springs, Houston, Texas 77090 to TEXTRON FINANCIAL CORPORATION, a Delaware corporation ("Assignee") whose address is 1410 Hospital Trust Tower, Post Office Box 878, Providence, Rhode Island 02901. RECITALS A. Assignor is the lessee of the real property described in Exhibit A attached. Assignor's leasehold estate in such real property arises under the terms and provisions of a Fixed Base Operator Concession Agreement and Lease between the County of Eagle, State of Colorado, and Howard Air Services, Inc., dated August 1, 1986, recorded in Book at Page of the real property records of Eagle County., Colorado, as clarified and supplemented by the terms and provisions of that certain Estoppel Certificate and Agreement, dated June , 1987, executed by the County of Eagle, State of Colorado. The real property described in Exhibit A attached hereto, together with all improvements now or hereafter located thereon and all appurtenances thereto, is referred to as the "Property." B. Assignor has executed it promissory note (the "Note") of even date herewith, payable to the order of Assignee in the principal face amount of $1,500,000. The Note is secured, in part, by a Deed of Trust and Security Agreement of even date herewith (the "Deed of Trust") from Assignor to the Public Trustee of the Colorado County or City and County in which the Property is located. As used herein, the term "Loan Documents" refers to: the Note; the Deed of Trust; this Assignment; an Assignment of Agreement of even date herewith, from Assignor to Assignee; a Guaranty of � even date herewith from Charles J. Howard and Howard to Assignee; any financing statements executed in connection with any of such instruments and documents; and each other instrument or document executed or delivered by Assignor as security for the Note or in connection with the transaction pursuant to which the Note has been executed and delivered. The term "Loan. Documents" also includes all modifications, extensions, renewals, and replacements of each document referred to above. ASSIGNMENT NOW, THEREFORE, to induce Assignee to make the loan evidenced by the Note (the "Loan"), as a partial source of repayment of the Loan, and as additional security for the payment and performance of all obligations of Assignor to Assignee evidenced by or referred to in the Loan Documents, whether now existing or subsequently incurred, Assignor hereby undertakes and agrees as follows: 1. Assignment of Leases. Assignor hereby assigns, sells, and conveys to Assignee all of Assignor's right, title, and interest in and to all leases, subleases, franchise and concession agreements, and, all other similar agreements, in whatever fcrm, which now or subsequently affect all or any part of the Property. All such leases, subleases, franchise and concession agreements, and other agreements are collectively referred to as the "Leases." 2. Assignment of Rents and Othpr Income. Assignor hereby assigns, sells, and conveys to Assignee all of Assignor's right, title, and interest in and to all deposits (whether for security or otherwise), rents, issues, profits, revenues, royalties, contract rights, and benefits of every nature of and from the Property. 3. Ownership and Preservation of Leases. Assignor represents, warrants, and covenants that it now is (or with respect to Leases not yet in existence, will be immediately upon the execution thereof) the absolute owner of the Leases, with full right and title to assign the same and the rents, income, and profits due or to become due thereunder; that any existing Leases are valid, in full force and effect, and have not been modified or amended except as stated herein; that there is no outstanding assignment or pledge thereof or of the deposits (for security or otherwise), rents, income, and profits r due or to become due thereunder; that there are no existing defaults under the terms thereof on the part of any party thereto; that the parties with whom Assignor has contracted under the Leases have no present defenses, set -offs, or counterclaims against Assignor; and that no rents, income, or profits payable thereunder have been or will be hereafter anticipated, collected or more than one month in advance, discounted, released, waived, compromised, or otherwise discharged without Assignee's prior written consent. Assignor will not cancel, terminate, or permit the surrender of any Lease, or amend or modify any provision thereof, or make any subsequent assignment thereof, without the prior written consent of Assignee. Any attempted cancellation, termination, surrender, amendment, modification, or assignment of any Lease without the prior written consent of Assignee shall, at Assignee's option, be null and void. 4. Defense of Actions. Assignor will, at Assignor's sole cost and expense, appear in and defend any action or proceeding arising under, growing out of, or in any way connected with the Leases or the obligations, duties, or liabilities of any of the parties to the Leases, and will pay on request all reasonable costs and expenses, including attorneys' fees, which Assignee may incur in connection with Assignee's appearance, voluntary or otherwise, in any such action or proceeding. 5. ' Assignee's Right of Possession. At any time after the execution of this Assignment, Assignee may, at its option, enter and take possession of the premises affected by any Lease and perform all acts necessary for the operation and maintenance of such premises in the same manner and to the same extent as Assignor could do the same things. Without limiting the effect of the preceding sentence, Assignee is empowered, but shall have no obligation, to collect the rents, income, and profits accruing under the Leases or any of them, to enforce payment thereof and the performance of any and all terms and provisions thereof, to exercise all the rights and privileges of Assignor thereunder, including the right to fix or modify rents, to demand and sue for possession of the premises covered by any Lease, and to relet such premises and collect the rents, income, and profits resulting from such reletting. Assignee will from time to time apply the net income derived under the Leases, after payment of all proper costs and charges (including any loss or damage of the nature referred to in paragraph 8 hereof, and including reasonable attorneys' fees and other costs of collection) to any sums then due Assignee under the Loan Documents, in such order as Assignee may elect, but Assignee will in no event be accountable for any sums not actually received by Assignee pursuant to this Assignment. 6. Revocable Waiver of Assignee's Rights. By accepting this Assignment, Assignee waives the right to exercise the rights and powers granted to Assignee in paragraph 5 above and covenants and agrees not to revoke such waiver until and unless there has been a default by Assignor in the payment or performance of any obligation contained in, secured by, or referred to in the Loan Documents. If any such default occurs and is not cured within any applicable grace period, Assignee may at any time (including the time covered by any foreclosure proceeding and the period provided for redemption, if any) revoke such waiver without notice, and upon such revocation may proceed to exercise any or all of the rights and powers conferred upon Assignee in paragraph -5 above. 7. Direction to Lessees. Assignor hereby irrevocably agrees and directs that the lessee and/or all other parties with whom Assignor has contracted under the Leases shall,, upon demand and notice from Assignee that Assignee has revoked the waiver contained in paragraph 6 hereof, pay all rents, income, and profits under such Lease to Assignee, without liability on the part of such lessee or other party for determining the validity or propriety of Assignee's revocation of such waiver, and notwithstanding any claim by Assignor that Assignee's revocation of such waiver is invalid or improper. Assignor will have no claim against any such lessee or other party for any rents or other sums paid to Assignee. 8. Limitation on Assignee's Duties; Indemnification. Prior to Assignee's actual entry and taking possession of the premises immediately affected by any Lease, this Assignment shall not operate to place responsibility upon Assignee for the condition, safety, control, care, management, or repair of such premises. Nothing contained herein shall be construed to bind Assignee at any time to the performance of any of the terms or provisions contained in any Lease, or otherwise to impose any obligation on Assignee, including, without limitation, any liability under any covenant of quiet enjoyment contained in any Lease if any Lease is terminated or any lessee or other party is dispossessed upon foreclosure of any of the Loan Documents. Assignor agrees to indemnify and hold Assignee harmless of and from any and all claims, liabilities, losses, -2- 0 n expenses, or damages, including attorneys' fees, which Assignee may incur under any Lease, or by reason of this Assignment, as well as any and all claims and demands whatsoever which may be asserted against Assignee by reason of any alleged obligation or undertaking to be performed or discharged by Assignee under any such Lease or under or by reason of this Assignment. 9. Performance by Assignor. Assignor will perform, both before and after any revocation by Assignee of the waiver contained in paragraph 6 above, all of Assignor's covenants, agreements, and obligations under the Leases, and will neither do nor fail to do anything which may result in any release of liability of any lessee, lease guarantor or other party or the accrual of any right in any lessee or other party to withhold any rent or other sum payable under the terms of any Lease. Assignor will give prompt notice to Assignee of any notice of default received from any lessee or from any other person, and will furnish Assignee with a copy of any such notice. If requested by Assignee, Assignor will enforce each Lease and all remedies available to Assignor in the event of any default under any Lease. 10. Assignor's Negative Covenants. Assignor will not make any other or further assignment of any Lease or of any interest therein, or of any of the rents or other income payable thereunder. Assignor will not modify or amend the terms of any guaranty of any Lease or cancel or terminate any such guaranty, nor consent to the assignment of any Lease, or any subletting thereunder, without the prior written consent of Assignee. Assignor will notify Assignee in writing immediately upon entering into any Lease, and will furnish Assignee with an executed copy of such Lease. 11. Assignee's Right to Perform Defaulted Obligations. If Assignor fails to make any payment or to perform any act required of Assignor under the terms hereof, then Assignee may, but will not be obligated to, without notice to or demand on Assignor, and without releasing Assignor from any obligation under this Assignment, make the payment or perform the act in such manner and to such extent as Assignee may deem necessary to protect the security hereof, including specifically, without limitation, appearing in and defending any action or proceeding purporting to affect the security hereof or the rights or powers of Assignor or Assignee, and performing or discharging any obligation, covenant, or agreement of Assignor under any Lease. In exercising any of such powers, Assignee may pay all necessary costs and expenses, employ counsel, and incur and pay reasonable attorneys' fees. Any sum advanced or paid by Assignee for any such purpose shall be immediately due and payable to Assignee by Assignor, and shall bear interest from the date paid or advanced by Assignee until repaid by Assignor at the "Default Rate" as defined in the Deed of Trust. 12. Cross -Default Clause. Any default by Assignor in the performance or observance of any covenant or condition hereof shall be deemed a default or event of default under each of the Loan Documents, entitling Assignee to exercise all or any remedies available to Assignee under the terms of any or all Loan Documents, and any default or event or default under any other Loan Document shall be deemed a default hereunder, entitling Assignee to exercise any or all remedies provided for herein. Failure by Assignee to exercise any right which it may have hereunder shall not be deemed a waiver thereof unless; so agreed in writing by Assignee, and the waiver by Assignee of any default by Assignor hereunder shall not constitute a continuing waiver or a waiver of any other default or of the same default on any future occasion. 13. Reassignment by Assignee. Assignee may assign all of Assignor's right, title, and interest in any or all Leases (to the extent of the interests therein conferred upon Assignee by the terms hereof) to any subsequent holder or owner of the Note or other Loan Documents, or to any person who acquires title to the property encumbered by the Deed of Trust through foreclosure or otherwise. From and after the acquisition of title to such property by any person, through foreclosure or conveyance in lieu of foreclosure, no assignee of Assignor's interest in any Lease shall be liable to account to Assignor for the rents, income, and profits thereafter accruing. 14. Binding Effect. The provisions of this Assignment shall bind and benefit the parties hereto and their respective successors and permitted assigns. -3- 0 ATTEST: STATE OF n Signed and delivered as of the date first above written. HOWARD AIR SERVICES, INC., a Colorado corporation 0 ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 19 , by as , and as of Howard Air Services, Inc., a Colorado corporation. My commission expires WITNESS my hand and official seal. otary Public -4- EXHIBIT A to ASSIGNMENT OF LEASES AND RENTS AND OTHER INCOME (Description of Property) -5- (7), (-,0)- x TO ESTOPPEL CERTIFICATE AND CONSENT [Attach Assignment of Agreement] x 1 0, D 01aagy0620 ASSIGNMENT OF AGREEMENT THIS ASSIGNMENT is given as of the day of June, 1987, by HOWARD AIR SERVICES, INC., a Colorado corporation ("Assignor") whose address is 17190 Beaver Springs, Houston, Texas 77090 to TEXTRON FINANCIAL CORPORATION, a Delaware corporation ("Assignee") whose address is 1410 Hospital Trust Tower, Post Office Box 878, Providence, Rhode Island 02901. RECITALS A. Assignor is the lessee of the real property described in Exhibit A attached. Assignor's leasehold estate in such real property arises under the terms and provisions of a Fixed Base Operator Concession Agreement and Lease between the County of Eagle, State of Colorado, and Howard Air Services, Inc., dated August 1, 1986, recorded in Book at Page of the real property records of Eagle County, Colorado, as clarified and supplemented by the terms and provisions of that certain Estoppel Certificate and Agreement, dated June , 1987, executed by the County of Eagle, State of Colorado (such Fixed Base Operator Concession Agreement and Lease, as so clarified and supplemented, is hereafter referred to as the "Agreement"). The real property described in Exhibit A attached hereto, together with all improvements now or hereafter located thereon and all appurtenances thereto, is referred to as the "Property." B. Assignor has executed it promissory note (the "Note") of even date herewith, payable to the order of Assignee in the principal face amount of $1,500,000. The Note is secured, in part, by a Deed of Trust and Security Agreement of even date herewith (the "Deed of Trust") from Assignor to the Public Trustee of the Colorado County or City and County in which the Property is located. As used herein, the term "Loan Documents" refers to: the Note; the Deed of Trust; this Assignment; an Assignment of Leases and Rents and Other Income of even date herewith, from Assignor to Assignee; a Guaranty of even date herewith from Charles J. Howard and Howard to Assignee; any financing statements executed in connection with any of such instruments and documents; and each other instrument or document executed or delivered by Assignor as security for the Note or in connection with the transaction pursuant to which the Note has been executed and delivered. The term "Loan Documents" also includes all modifications, extensions, renewals, and replacements of each document referred to above. ASSIGNMENT NOW, THEREFORE, to induce Assignee to make the loan evidenced by the Note (the "Loan"), and as additional security for the payment and performance of all obligations of Assignor to Assignee evidenced by or referred to in the Loan Documents, whether now existing -or subsequently incurred, Assignor hereby undertakes and agrees as follows: 1. Assignment of Agreement. Assignor hereby assigns, transfers, sells and conveys' to Assignee the entire right, title, interest and estate of Assignor under and pursuant to the -Agreement. 2. Assignment of Income and Revenues. Assignor hereby assigns, sells and conveys -to Assignee all of Assignor's right, title, and interest in and to all income, revenues, profits and cther sums paid cr payable to Assignor under the terms of the Agreement, or earned or received by Assignor in consequence of the exercise by Assignor of its rights and privileges pursuant to the Agreement. 3. Ownership and Preservation of Agreement. Assignor represents, warrants, and covenants that it is the absolute owner of the Agreement, with full right and title to assign the same and the income, revenues, profits and other sums due or to become due thereunder; that the Agreement is valid, in full force and effect, and has not been modified or amended except as stated herein; that there is no outstanding assignment or pledge thereof or of the income, revenues, profits and other sums due or to become due thereunder; and that there are no existing defaults under the -terms thereof on the part of any party thereto. Assignor will not cancel, terminate, or permit the surrender of the Agreement, or amend or modify any provision thereof, or make any subsequent assignment thereof, without the prior written consent of Assignee. Any attempted cancellation, termination, surrender, amendment, modification, or assignment of the Agreement without the prior written consent of Assignee shall, at Assignee's option, be null and void. 4. Defense of Actions. Assignor will, at Assignor's sole cost and expense, appear in and defend any action or proceeding arising under, growing out of, or in any way connected with the Agreement or the obligations, duties, or liabilities of either of the parties to the Agreement, and will pay on request all reasonable costs and expenses, including attorneys' fees, which Assignee may incur in connection with Assignee's appearance, voluntary or otherwise, in any such action or proceeding. 5. Assignee's Rights Under Agreement. As used herein, the term "Leasehold Estate" refers to the leasehold estate in the real property legally described in Exhibit A attached to this Assignment which is granted to Assignor under the provisions of the Agreement; and the term "Concession" refers to the concession granted to Assignor under the provisions of the Agreement to operate as a fixed base operator at the Eagle County Airport (the"Airport"). At any time after the execution of this Assignment, Assignee may, at its option, enter and take possession of the Property and exercise any and all rights and privileges of Assignor under and pursuant to the Agreement. Without limiting the foregoing provisions of this paragraph 5, Assignee shall have the right: to take possession of the Property and exercise all rights of Assignor with respect to the Property and the Leasehold Estate; to succeed to Assignor's entire interest in the Concession and to exercise all rights and privileges with respect thereto; and to subsequently assign the Leasehold Estate, the Concession and all other rights of Assignor under and pursuant to the Agreement to any party or parties who hold all governmental approvals or permits required to operate a fixed base operation at the Airport. Assignee will from time to time apply the net income derived from the exercise of its rights pursuant to this paragraph 5, after payment of all costs and expenses incurred by Assignee in connection with the exercise of such rights (and after the payment of any loss or damage of the nature referred to in paragraph 8 hereof, and including reasonable attorney's fees and other costs of collection), to any sums due Assignee under the Loan Documents, in such order as Assignee may elect, but Assignee will in no event be accountable for any sums not actually received by Assignee pursuant to this Assignment. 6. Revocable Waiver of Assignee's Rights. By accepting this Assignment, Assignee waives the right to exercise the rights and powers granted to Assignee in paragraph 5 above and covenants and agrees not to revoke such waiver until and unless there has been a default by Assignor in the payment or performance of any obligation contained in, secured by, or referred to in the Loan Documents. If any such default occurs and is not cured within any applicable grace period, Assignee may at any time (including the time covered by any foreclosure proceeding and the period provided for redemption, if any) revoke such waiver without notice, and upon such revocation may proceed to exercise any or all of the rights and powers conferred upon Assignee in paragraph 5 above. 7. Direction to County.* Assignor hereby irrevocably agrees and directs that the County of Eagle, State of Colorado (the "County") shall, upon demand and notice from Assignee that Assignee has revoked the waiver contained in paragraph 6 hereof, recognize Assignee in all respects as the owner and holder of the rights and privileges of Assignor under and pursuant to the Agreement, without liability on the part of the County or other party for determining the validity or propriety of Assignee's revocation of such waiver, and notwithstanding any claim by Assignor that Assignee's revocation of such waiver is invalid or improper: Assignor will'have no claim against the County for complying with the provisions of this paragraph 7. 8. Limitation on Assignee's Duties; Indemnification. Prior to Assignee's actual entry and taking possession of fhe'Property, this _Assignment shall not operate to place responsibility upon Assignee for the condition, safety, control, care, management, or repair of the Property. Nothing contained herein shall be construed to bind Assignee at any time to the performance of any of the terms or provisions contained in the Agreement, or otherwise to impose any obligation on Assignee. Assignor agrees to indemnify and hold Assignee harmless of and from any and all claims, liabilities, losses, expenses, or damages, including attorneys' fees, which Assignee may incur under the Agreement, or by reason of this Assignment, as well as any and all claims and demands whatsoever which may be asserted against Assignee by reason of any alleged obligation or undertaking to be performed or discharged by Assignee under the Agreement or under or by reason of this Assignment. WA 9. Performance by Assignor. Assignor will perform, both before and after any revocation by Assignee of the waiver contained in paragraph 6 above, all of Assignor's covenants, agreements, and obligations under the Agreement, Assignor will give prompt notice to Assignee of any notice of default received from the County or from any other person, and will furnish Assignee with a copy of any such notice. 10. Assignor's Negative Covenants. Assignor will not make any other or further assignment of the Agreement or of any interest therein. 11. Assignee's Right to Perform Defaulted Obligations. -If Assignor fails to make any payment or to perform any act required of Assignor under the terms hereof, then Assignee may, but will not be obligated to, without notice to or demand on Assignor, and without releasing Assignor from any obligation under this Assignment, make the payment or perform the act in such manner and to such extent as Assignee may deem necessary to protect the security hereof, including specifically, without limitation, appearing in and defending any action or proceeding purporting to affect the security hereof or the rights or powers of Assignor or Assignee, and performing or discharging any obligation, covenant, or agreement of Assignor under the Agreement. In exercising any of such powers, Assignee may pay all necessary costs and expenses, employ counsel, and incur and pay reasonable attorneys' fees. Any sum advanced or paid by Assignee for any such purpose shall be immediately due and payable to Assignee by Assignor, and shall bear interest from the date paid or advanced by Assignee until repaid by Assignor at the "Default Rate" as defined in the Deed of Trust. 12. Cross -Default Clause. Any default by Assignor in the performance or observance of any covenant or condition hereof shall be deemed a default or event of default under each of the Loan Documents, entitling Assignee to exercise all or any remedies available to Assignee under the terms of any or all Loan Documents, and any default or event of default under any other Loan Document shall be deemed a default hereunder, entitling Assignee to exercise any or all remedies provided for herein. Failure by Assignee to exercise any right which it may have hereunder shall not be deemed a waiver thereof unless so agreed in writing by Assignee, and the waiver by Assignee of any default by Assignor hereunder shall not constitute a continuing waiver or a waiver of any other default or of the same default on any future occasion. 13. Security Interest. This Assignment also constitutes the granting by Assignor to Assignee of a security interest under the Colorado Uniform Commercial Code in the entire right, title, and interest of Assignor in, to and under the Agreement, including, but not limited to, a security interest in the Leasehold Estate and the Concession. Assignor shall execute Uniform Commercial Code financing statements and other documents required by Assignee from time to time in order to perfect or evidence such security interest. It is understood and agreed that Assignee may exercise all rights of a secured party under the Colorado Uniform Commercial Code with respect to the contract rights and other collateral encumbered by such security interest, including, but not limited to, taking possession of, holding, and selling the Leasehold Estate and the Concession. Any requirement for reasonable notice of the time and place of any public sale, or of the time after which any private sale or other disposition is to be made, will be satisfied by Assignee's giving of such notice to Assignor at least five days prior to the time of any public sale or the time after which any private sale or other intended disposition is to be made. 14. Reassignment by Assignee. Assignee may assign all of Assignor's right, title, and interest the Agreement (to the extent of the interests therein conferred upon Assignee by the terms hereof) to any subsequent holder or owner of the Note or other Loan Documents, or to any person who acquires title to the property encumbered by the Deed of Trust through foreclosure or otherwise. 15. Binding Effect. The provisions of this Assignment shall bind and benefit the parties hereto and their respective successors and permitted assigns. Signed and delivered as of the date first above written. ATTEST: HOWARD AIR SERVICES, INC., a Colorado corporation M -3- E B4 - g STATE OF ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 19 , by , as and as of Howard Air Services, Inc., a Colorado corporation. My commission expires WITNESS my hand and official seal. Notary Public -4- EXHIBIT A to ASSIGNMENT OF LEASES AND RENTS AND OTHER INCOME (Description of Property) -5-