Recording Requested By and recorded
counterparts should be returned to:
Xxx Xxxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT
MADE BY
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
and
LAS VEGAS SANDS, INC.
a Nevada corporation
jointly and severally
as Trustor,
to
Lawyers Title of Nevada, Inc.
a Nevada corporation,
as Trustee,
for the benefit of
FIRST TRUST NATIONAL ASSOCIATION,
in its capacity as the Mortgage Notes Indenture Trustee,
as Beneficiary
--------------------------------------------------------------------------------
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND
IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF XXXXX COUNTY,
NEVADA UNDER THE NAMES OF VENETIAN CASINO RESORT, LLC AND LAS VEGAS SANDS, INC.
AS "DEBTOR" AND FIRST TRUST NATIONAL ASSOCIATION AS SECURED PARTY.
THIS INSTRUMENT IS A "CONSTRUCTION MORTGAGE" AS THAT TERM IS DEFINED IN
SECTION 104.9313(1)(C) OF THE NEVADA REVISED STATUTES AND SECURES AN OBLIGATION
INCURRED FOR THE CONSTRUCTION OF AN IMPROVEMENT UPON LAND.
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES AND SECURITY AGREEMENT
(hereinafter called "Deed of Trust") is made and effective as of November 14,
1997, by VENETIAN CASINO RESORT, LLC, a Nevada limited liability company ("VCR")
and LAS VEGAS SANDS, INC., a Nevada corporation ("LVSI," and jointly and
severally with VCR together with all successors and assigns of the Trust Estate
(as hereinafter defined), "Trustor",) whose address is 0000 Xxx Xxxxx Xxxx.
Xxxxx Xxxx 0X, Xxx Xxxxx, Xxxxxx 00000, to LAWYERS TITLE OF NEVADA, INC., a
Nevada corporation, whose address is 0000 Xxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxx 00000, as Trustee ("Trustee"), for the benefit of FIRST TRUST NATIONAL
ASSOCIATION, ("Beneficiary"), in its capacity as the Mortgage Notes Indenture
Trustee under that certain Indenture, dated of even date herewith, among
Trustor, Beneficiary and the other parties signatory thereto (as the same may be
amended or modified from time to time, the "Mortgage Notes Indenture") and
pertaining to the 12.25% Mortgage Notes 2004 issued by Trustor in the aggregate
principal amount of $425,000,000.
DEFINITIONS - As used in this Deed of Trust, the following terms have the
meanings hereinafter set forth:
"Accounts Receivable" shall have the meaning set forth in Section 9-106
(NRS 104.9106) of the UCC for the term "account."
"Appurtenant Rights" means all and singular tenements, hereditaments,
rights, reversions, remainders, development rights, privileges, benefits,
easements (in gross or appurtenant), rights-of-way, gores or strips of land,
streets, ways, alleys, passages, sewer rights, water courses, water rights and
powers, and all appurtenances whatsoever and claims or demands of Trustor at law
or in equity in any way belonging, benefitting, relating or appertaining to the
Land, the airspace over the Land, the Improvements or any of the Trust Estate
encumbered by this Deed of Trust, or which hereinafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired by
Trustor.
"Bankruptcy" means, with respect to any Person, that (i) a court having
jurisdiction in the Trust Estate shall have entered a decree or order for relief
in respect of such Person in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order has not been stayed; or any other
similar relief shall have been granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against such Person, under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the Trust Estate for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
such Person, or over all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of such Person, for all or a substantial
part of its property; or a warrant of attachment, execution or similar process
shall have been issued against any substantial part of the property of such
Person, and any such event described in this clause (ii) shall continue for 60
days unless dismissed, bonded or discharged; or (iii) such Person shall have an
order for relief entered with respect to it or shall commence a voluntary case
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect or shall consent to the entry of an
order
1
for relief in an involuntary case, or to the conversion of an involuntary case
to a voluntary case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or such Person shall make any assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due and payable and a period of
thirty (30) days shall have elapsed; or (iv) such Person shall, or the Board of
Directors of such Person (or any committee thereof) shall, adopt any resolution
or otherwise authorize any action to approve any of the actions referred to in
clause (iii) above.
"Bankruptcy Code" means Title 11 of the United Sates Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute thereto.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banking institutions in the State of Nevada or the City of New York are
not required to be open.
"Deed of Trust" means this Deed of Trust as it may be amended, increased
or modified from time to time.
"Event of Default" has the meaning set forth in Section 3.1 hereof.
"FF&E" means all furniture, fixtures, equipment, appurtenances and
personal property now or in the future contained in, used in connection with,
attached to, or otherwise useful or convenient to the use, operation, or
occupancy of, or placed on, but unattached to, any part of the Land or
Improvements whether or not the same constitutes real property or fixtures in
the State of Nevada, including all removable window and floor coverings, all
furniture and furnishings, heating, lighting, plumbing, ventilating, air
conditioning, refrigerating, incinerating and elevator and escalator plants,
cooking facilities, vacuum cleaning systems, public address and communications
systems, sprinkler systems and other fire prevention and extinguishing apparatus
and materials, motors, machinery, pipes, appliances, equipment, fittings,
fixtures, and building materials, all gaming and financial equipment, computer
equipment, calculators, adding machines, gaming tables, video game and slot
machines, and any other electronic equipment of every nature used or located on
any part of the Land or Improvements, together with all venetian blinds, shades,
draperies, drapery and curtain rods, brackets, bulbs, cleaning apparatus,
mirrors, lamps, ornaments, cooling apparatus and equipment, ranges and ovens,
garbage disposals, dishwashers, mantels, and any and all such property which is
at any time installed in, affixed to or placed upon the Land or Improvements.
"FF&E Financing Agreement" means any financing agreement entered into by
Trustor (i) the proceeds of which are used by Trustor for the acquisition or
lease of FF&E, (ii) pursuant to which Trustor grants to the lender or lessor
thereunder a security interest in the FF&E so acquired or leased and (iii) which
is permitted by the Mortgage Notes Indenture.
"Funding Agents' Disbursement and Administration Agreement" means that
certain Funding Agents' Disbursement and Administration Agreement, dated of even
date herewith, by and among Trustor, Grand Canal Shops Mall Construction, LLC, a
Delaware limited liability company, The Bank of Nova Scotia, as the Bank Agent
and the Disbursement Agent, Beneficiary, as the Mortgage Notes Indenture
Trustee, the Interim Mall Lender and Atlantic-Pacific, Las Vegas, LLC, a
Delaware limited liability company, as the HVAC Provider, as the same may
hereafter be amended or modified in accordance with its terms and the terms of
the Mortgage Notes Indenture.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office, public entity, or instrumentality of any nature
whatsoever of the United
2
States federal or foreign government, any state, province or any city or other
political subdivision or otherwise, whether now or hereafter in existence, or
any officer or official thereof, including, without limitation, any Gaming
Authority.
"Imposition" means any taxes, assessments, water rates, sewer rates,
maintenance charges, other governmental impositions and other charges now or
hereafter levied or assessed or imposed against the Trust Estate or any part
thereof.
"Improvements" means (1) all the buildings, structures, facilities and
improvements of every nature whatsoever now or hereafter situated on the Land or
any real property encumbered hereby, and (2) all fixtures, machinery,
appliances, goods, building or other materials, equipment, including without
limitation all gaming equipment and devices, and all machinery, equipment,
engines, appliances and fixtures for generating or distributing air, water,
heat, electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of dust,
refuse or garbage; all wall-beds, wall-safes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumb-waiters, awnings, window shades, venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, computers, drapes, drapery rods and
brackets, mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing,
bathtubs, sinks, basins, pipes, faucets, water closets, laundry equipment,
washers, dryers, ice-boxes and heating units; all kitchen and restaurant
equipment, including but not limited to silverware, dishes, menus, cooking
utensils, stoves, refrigerators, ovens, ranges, dishwashers, disposals, water
heaters, incinerators, furniture, fixtures and furnishings, communication
systems, and equipment; all cocktail lounge supplies, including but not limited
to bars, glassware, bottles and tables used in connection with the Land; all
chaise lounges, hot tubs, swimming pool heaters and equipment and all other
recreational equipment (computerized and otherwise), beauty and xxxxxx
equipment, and maintenance supplies used in connection with the Land; all
amusement rides and attractions attached to the Land, all specifically designed
installations and furnishings, and all furniture, furnishings and personal
property of every nature whatsoever now or hereafter owned or leased by Trustor
or in which Trustor has any rights or interest and located in or on, or attached
to, or used or intended to be used or which are now or may hereafter be
appropriated for use on or in connection with the operation of the Land or any
real or personal property encumbered hereby or any other Improvements, or in
connection with any construction being conducted or which may be conducted
thereon, and all extensions, additions, accessions, improvements, betterments,
renewals, substitutions, and replacements to any of the foregoing, and all of
the right, title and interest of Trustor in and to any such property, which, to
the fullest extent permitted by law, shall be conclusively deemed fixtures and
improvements and a part of the real property hereby encumbered.
"Insolvent" means with respect to any person or entity, that such person
or entity shall be deemed to be insolvent if he or it shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become due
and payable and a period of thirty (30) days shall have elapsed.
"Intangible Collateral" means (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the Land
or Improvements, including, without limitation, the names "Venetian" and
"Sands," including any variations thereon, together with the goodwill associated
therewith, and all names, logos, and designs used by Trustor, or in connection
with the Land or in which Trustor has rights, with the exclusive right to use
such names, logos and designs wherever they are now or hereafter used in
connection with the Project (or in connection with the marketing of the Project
together with the "SECC Land" (as defined in the Cooperation Agreement) in
accordance with the terms of the Cooperation Agreement), and any and all other
trade names, trademarks or service marks, whether or not registered, now or
hereafter used in the operation of the
3
Project, including, without limitation, any interest as a lessee, licensee or
franchisee, and, in each case, together with the goodwill associated therewith;
(b) subject to the absolute assignment contained herein, the Rents; (c) any and
all books, records, customer lists, concession agreements, supply or service
contracts, licenses, permits, governmental approvals (to the extent such
licenses, permits and approvals may be pledged under applicable law), signs,
goodwill, casino and hotel credit and charge records, supplier lists, checking
accounts, safe deposit boxes (excluding the contents of such deposit boxes owned
by persons other than Trustor and its subsidiaries), cash, instruments, chattel
papers, including inter-company notes and pledges, documents, unearned premiums,
deposits, refunds, including but not limited to income tax refunds, prepaid
expenses, rebates, tax and insurance escrow and impound accounts, if any,
actions and rights in action, and all other claims, including without limitation
condemnation awards and insurance proceeds, and all other contract rights and
general intangibles resulting from or used in connection with the operation and
occupancy of the Trust Estate and the Improvements and in which Trustor now or
hereafter has rights; and (d) general intangibles, vacation license resort
agreements or other time share license or right to use agreements, including
without limitation all rents, issues, profits, income and maintenance fees
resulting therefrom, whether any of the foregoing is now owned or hereafter
acquired.
"Interim Mall Lender" means GMAC Commercial Mortgage Corporation, a
California corporation, and its permitted successors, assigns and replacements.
"Land" means the real property situated in the County of Xxxxx, State of
Nevada, more specifically described in Schedule A attached hereto and
incorporated herein by reference, including any after acquired title thereto.
"Legal Requirements" means all applicable restrictive covenants,
applicable zoning and subdivision ordinances and building codes, all applicable
health and Environmental Laws and regulations, all applicable gaming laws and
regulations, and all other applicable laws, ordinances, rules, regulations,
judicial decisions, administrative orders, and other requirements of any
Governmental Authority having jurisdiction over Trustor, the Trust Estate and/or
any Affiliate of Trustor, in effect either at the time of execution of this Deed
of Trust or at any time during the term hereof, including, without limitation,
all Environmental Laws and Gaming Control Laws.
"Notes" means, collectively, those certain Mortgage Note(s) issued
pursuant to the Mortgage Notes Indenture, as the same may be amended or replaced
from time to time in accordance with its terms.
"NRS" means the Nevada Revised Statutes as in effect from time to time.
"Obligations" means the payment and performance of each covenant and
agreement of Trustor contained in this Deed of Trust, the Mortgage Notes
Indenture, the Notes and the Mortgage Notes Indenture Security Documents.
"Permitted Dispositions" means (a) the sale, transfer, lease or other
disposition of assets in the Trust Estate, in the ordinary course of business,
of inventory held in the ordinary course of business (b) the dispositions set
forth in Section 1.10 hereof and (c) other sales, transfers, leases or other
dispositions of assets in the Trust Estate; provided that all applicable
provisions of the Mortgage Notes Indenture are complied with, including Sections
4.10 and 4.24.
"Personal Property" has the meaning set forth in Section 1.12 hereof.
4
"Proceeds" has the meaning assigned to it under the UCC and, in any event,
shall include but not be limited to (i) any and all proceeds of any insurance
(including without limitation property casualty and title insurance), indemnity,
warranty or guaranty payable from time to time with respect to any of the Trust
Estate; (ii) any and all proceeds in the form of accounts, security deposits,
tax escrows (if any), down payments (to the extent the same may be pledged under
applicable law), collections, contract rights, documents, instruments, chattel
paper, liens and security instruments, guarantees or general intangibles
relating in whole or in part to the Project and all rights and remedies of
whatever kind or nature Trustor may hold or acquire for the purpose of securing
or enforcing any obligation due Trustor thereunder; (iii) any and all payments
in any form whatsoever made or due and payable from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Trust Estate by any Governmental Authority; (iv) subject to
the absolute assignment contained herein, the Rents or other benefits arising
out of, in connection with or pursuant to any Space Lease of the Trust Estate;
and (v) any and all other amounts from time to time paid or payable in
connection with any of the Trust Estate; provided, however, that the Trustor is
not authorized to dispose of any of the Trust Estate unless such disposition is
a Permitted Disposition.
"Project" means the resort-hotel-casino-mall complex proposed to be
constructed in Xxxxx County, Nevada as described in the Plans and
Specifications, as such Plans and Specifications may be amended pursuant to the
Funding Agents' Disbursement and Administration Agreement.
"Rents" means all rents, room revenues, income, receipts, issues, profits,
revenues and maintenance fees, room, food and beverage revenues, license and
concession fees, income, proceeds and other benefits to which Trustor may now or
hereafter be entitled from the Land, the Improvements, the Space Leases or any
property encumbered hereby or any business or other activity conducted by
Trustor at the Land or the Improvements.
"Space Leases" means any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreements, and all other
agreements affecting the Trust Estate that Trustor has entered into, taken by
assignment, taken subject to, or assumed, or has otherwise become bound by, now
or in the future, that give any person the right to conduct its business on, or
otherwise use, operate or occupy, all or any portion of the Land or Improvements
and any leases, agreements or arrangements permitting anyone to enter upon or
use any of the Trust Estate to extract or remove natural resources of any kind,
together with all amendments, extensions, and renewals of the foregoing entered
into in compliance with this Deed of Trust, together with all rental, occupancy,
service, maintenance or any other similar agreements pertaining to use or
occupation of, or the rendering of services at the Land, the Improvements or any
part thereof.
"Space Lessee(s)" means any and all tenants, licensees, or other grantees
of the Space Leases and any and all guarantors, sureties, endorsers or others
having primary or secondary liability with respect to such Space Leases.
"Tangible Collateral" means all personal property, goods, equipment,
supplies, building and other materials of every nature whatsoever and all other
tangible personal property constituting a part or portion of the Project and/or
used in the operation of the hotel, casino, restaurants, stores, parking
facilities, observation tower and all other commercial operations on the Land or
Improvements, including but not limited to communication systems, visual and
electronic surveillance systems and transportation systems and not constituting
a part of the real property subject to the real property lien of this Deed of
Trust and including all property and materials stored therein in which Trustor
has an interest and all tools, utensils, food and beverage, liquor, uniforms,
linens, housekeeping and maintenance supplies, vehicles, fuel, advertising and
promotional material, blueprints, surveys, plans
5
and other documents relating to the Land or Improvements, and all construction
materials and all furnishings, fixtures and equipment, including, but not
limited to, all FF&E and all equipment and devices which are or are to be
installed and used in connection with the operation of the Project, those items
of furniture, fixtures and equipment which are to be purchased or leased by
Trustor, machinery and any other item of personal property in which Trustor now
or hereafter own or acquire an interest or right, and which are used or useful
in the construction, operation, use and occupancy of the Project and all present
and future right and interest of Trustor in and to any casino operator's
agreement, license agreement or sublease agreement used in connection with the
Land or the Improvements.
"Title Insurer" means Lawyers Title of Nevada, Inc., a Nevada corporation.
"Trust Estate" means all of the property described in Granting Clauses (A)
through (O) below, inclusive, and each item of property therein described,
provided, however, that such term shall not include the property described in
Granting Clause (P) below.
"UCC" means the Uniform Commercial Code in effect in the State of Nevada
from time to time, NRS chapters 104 and 104A.
The following terms shall have the meaning assigned to such terms in the
Funding Agents' Disbursement and Administration Agreement:
Cooperation Agreement
Environmental Laws
Financing Agreements
Gaming Control Acts
Intercreditor Agreement
HVAC Component
Lender
Mortgage Notes Indenture Security Documents
Mortgage Note Holder(s)
VCR Permitted Encumbrances
Plans and Specifications
Security Documents
The following terms shall have the meaning assigned to such terms in the
Mortgage Notes Indenture:
Affiliate
Gaming Authority
Gaming License
Issuance Date
Lease Transaction
Lien
Permitted Liens
Person
In addition, any capitalized terms used in this Deed of Trust which are not
otherwise defined herein shall have the meaning ascribed to such terms in the
Funding Agents' Disbursement and Administration Agreement and, if not defined
therein, the meaning ascribed to such terms in the Mortgage Notes Indenture.
6
W I T N E S E T H:
IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION;
THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, AND FOR THE
PURPOSE OF SECURING in favor of Beneficiary (1) the due and punctual payment of
the indebtedness evidenced by the Notes; (2) the performance of each covenant
and agreement of Trustor contained in the Mortgage Notes Indenture, herein, in
the Mortgage Notes Indenture Security Documents, each other Security Document
granting a security interest for the benefit of the Beneficiary is a party and
the Funding Agents' Disbursement and Administration Agreement; (3) the payment
of such additional loans or advances as hereafter may be made to Trustor
(individually or jointly and severally with any other Person) or its successors
or assigns, when evidenced by a promissory note or notes reciting that they are
secured by this Deed of Trust; provided, however, that any and all future
advances by Beneficiary to Trustor made for the improvement, protection or
preservation of the Trust Estate, together with interest at the rate applicable
to overdue principal set forth in Section 4.01 of the Mortgage Notes Indenture,
shall be automatically secured hereby unless such a note or instrument
evidencing such advances specifically recites that it is not intended to be
secured hereby and (4) the payment of all sums expended or advanced by
Beneficiary under or pursuant to the terms hereof or to protect the security
hereof (including Protective Advances as such term is defined in Section 4.2
hereof), together with interest thereon as herein provided, Trustor, in
consideration of the premises, and for the purposes aforesaid, does hereby
ASSIGN, BARGAIN, CONVEY, PLEDGE, RELEASE, HYPOTHECATE, WARRANT, AND TRANSFER
WITH POWER OF SALE UNTO TRUSTEE IN TRUST FOR THE BENEFIT OF BENEFICIARY, AND THE
MORTGAGE NOTE HOLDER(S) each of the following:
(A) The Land;
(B) TOGETHER WITH all the estate, right, title and interest of Trustor of,
in and to the Improvements;
(C) TOGETHER WITH all Appurtenant Rights;
(D) TOGETHER WITH all the estate, right, title and interests of Trustor
of, in and to the Tangible Collateral to the extent permitted by, or
not prohibited by, Gaming Control Laws and other applicable law;
(E) TOGETHER WITH the Intangible Collateral to the extent permitted by, or
not prohibited by, Gaming Control Laws and other applicable law;
(F) TOGETHER WITH (i) all the estate, right, title and interest of Trustor
of, in and to all judgments and decrees, insurance proceeds, awards of damages
and settlements hereafter made resulting from condemnation proceedings or the
taking of any of the property described in Granting Clauses (A), (B), (C), (D)
and (E) hereof or any part thereof under the power of eminent domain, or for any
damage (whether caused by such taking or otherwise) to the property described in
Granting Clauses (A), (B), (C), (D) and (E) hereof or any part thereof, or to
any Appurtenant Rights thereto, and Beneficiary is (subject to the terms hereof)
hereby authorized to collect and receive said awards and proceeds and to give
proper receipts and acquittance therefor, and (subject to the terms hereof) to
apply the same toward the payment of the indebtedness and other sums secured
hereby, notwithstanding the fact that the amount owing thereon may not then be
due and payable; (ii) all proceeds of any sales or other
7
dispositions of the property or rights described in Granting Clauses (A),
(B), (C), (D) and (E) hereof or any part thereof whether voluntary or
involuntary, provided, however, that the foregoing shall not be deemed to permit
such sales, transfers, or other dispositions except as specifically permitted
herein; and (iii) whether arising from any voluntary or involuntary disposition
of the property described in Granting Clauses (A), (B), (C), (D) and (E), all
Proceeds, products, replacements, additions, substitutions, renewals and
accessions, remainders, reversions and after-acquired interest in, of and to
such property;
(G) TOGETHER WITH the absolute assignment of any Space Leases (except with
respect to the absolute assignment of the Casino Lease (as such term is defined
in the Funding Agents' Disbursement and Administration Agreement), which may be
subject to Gaming Control Laws and other applicable law) or any part thereof
that Trustor has entered into, taken by assignment, taken subject to, or
assumed, or has otherwise become bound by, now or in the future, together with
all of the following (including all "Cash Collateral" within the meaning of the
Bankruptcy Law) arising from the Space Leases: (a) Rents (subject, however, to
the aforesaid absolute assignment to Trustee for the benefit of Beneficiary and
the conditional permission hereinbelow given to Trustor to collect the Rents),
(b) all guarantees, letters of credit, security deposits, collateral, cash
deposits, and other credit enhancement documents, arrangements and other
measures with respect to the Space Leases, (c) all of Trustor's right, title,
and interest under the Space Leases, including the following: (i) the right to
receive and collect the Rents from the lessee, sublessee or licensee, or their
successor(s), under any Space Lease(s) and (ii) the right to enforce against any
tenants thereunder and otherwise any and all remedies under the Space Leases,
including Trustor's right to evict from possession any tenant thereunder or to
retain, apply, use, draw upon, pursue, enforce or realize upon any guaranty of
any Space Lease; to terminate, modify, or amend the Space Leases; to obtain
possession of, use, or occupy, any of the real or personal property subject to
the Space Leases; and to enforce or exercise, whether at law or in equity or by
any other means, all provisions of the Space Leases and all obligations of the
tenants thereunder based upon (A) any breach by such tenant under the applicable
Space Lease (including any claim that Trustor may have by reason of a
termination, rejection, or disaffirmance of such Space Lease pursuant to any
Bankruptcy Law) and (B) the use and occupancy of the premises demised, whether
or not pursuant to the applicable Space Lease (including any claim for use and
occupancy arising under landlord-tenant law of the State of Nevada or any
Bankruptcy Law). Permission is hereby given to Trustor, so long as no Event of
Default has occurred and is continuing hereunder, to collect and use the Rents,
as they become due and payable, but not more than one (1) month in advance
thereof. Upon the occurrence of an Event of Default, the permission hereby given
to Trustor to collect the Rents shall automatically terminate, but such
permission shall be reinstated upon a cure of such Event of Default. Beneficiary
shall have the right, at any time and from time to time, to notify any Space
Lessee of the rights of Beneficiary as provided by this section;
Notwithstanding anything to the contrary contained herein, the foregoing
provisions of this Paragraph (G) shall not constitute an assignment for purposes
of security but shall constitute an absolute and present assignment of the Rents
to Beneficiary (except with respect to the absolute and present assignment of
the Rents from the Casino Lease, which may be subject to Gaming Control Laws and
other applicable law), subject, however, to the conditional license given to
Trustor to collect and use the Rents as hereinabove provided; and the existence
or exercise of such right of Trustor shall not operate to subordinate this
assignment to any subsequent assignment, in whole or in part, by Trustor;
(H) TOGETHER WITH all of Trustor's right, title and interest in and to any
and all Plans and Specifications and all maps, plans, specifications, surveys,
studies, tests, reports, data and drawings relating to the development of the
Land or the Project and the construction of the Improvements, including, without
limitation, all marketing plans, feasibility studies, soils tests, design
contracts and all contracts and agreements of Trustor relating thereto
including, without limitation,
8
architectural, structural, mechanical and engineering plans and specifications,
studies, data and drawings prepared for or relating to the development of the
Land or the Project or the construction, renovation or restoration of any of the
Improvements or the extraction of minerals, sand, gravel or other valuable
substances from the Land and purchase contracts or any agreement granting
Trustor a right to acquire any land situated within Xxxxx County, Nevada;
(I) TOGETHER WITH, to the extent permitted by applicable law, all of
Trustor's right, title, and interest in and to any and all licenses, permits,
variances, special permits, franchises, certificates, rulings, certifications,
validations, exemptions, filings, registrations, authorizations, consents,
approvals, waivers, orders, rights and agreements (including, without
limitation, options, option rights, contract rights now or hereafter obtained by
Trustor from any Governmental Authority having or claiming jurisdiction over the
Land, the FF&E, the Project, or any other element of the Trust Estate or
providing access thereto, or the operation of any business on, at, or from the
Land including, without limitation, any liquor or Gaming Licenses (except for
any registrations, licenses, findings of suitability or approvals issued by the
Nevada Gaming Authorities or any other liquor or gaming licenses which are
non-assignable); provided, that upon an Event of Default hereunder or under the
Mortgage Notes Indenture, if Beneficiary is not qualified under the Gaming
Control Laws to hold such Gaming Licenses, then Beneficiary may designate an
appropriately qualified third party to which an assignment of such Gaming
Licenses can be made in compliance with the Gaming Control Laws;
(J) TOGETHER WITH all water stock, water permits and other water rights
relating to the Land;
(K) TOGETHER WITH all oil and gas and other mineral rights, if any, in or
pertaining to the Land and all royalty, leasehold and other rights of Trustor
pertaining thereto;
(L) TOGETHER WITH any and all monies and other property, real or personal,
which may from time to time be subjected to the lien hereof by Trustor or by
anyone on its behalf or with its consent, or which may come into the possession
or be subject to the control of Trustee or Beneficiary pursuant to this Deed of
Trust, any Mortgage Notes Indenture Security Document or any other Security
Document granting a security interest to the Beneficiary, including, without
limitation, any Protective Advances (as defined in Section 4.2 hereof) under
this Deed of Trust; and all of Trustor's right, title, and interest in and to
all extensions, improvements, betterments, renewals, substitutes for and
replacements of, and all additions, accessions, and appurtenances to, any of the
foregoing that Trustor may subsequently acquire or obtain by any means, or
construct, assemble, or otherwise place on any of the Trust Estate, and all
conversions of any of the foregoing; it being the intention of Trustor that all
property hereafter acquired by Trustor and required by any Mortgage Notes
Indenture Security Document, this Deed of Trust or any other Security Document
granting a security interest to the Beneficiary to be subject to the lien of
this Deed of Trust or intended so to be shall forthwith upon the acquisition
thereof by Trustor be subject to the lien of this Deed of Trust as if such
property were now owned by Trustor and were specifically described in this Deed
of Trust and granted hereby or pursuant hereto, and Trustee and Beneficiary are
hereby authorized, subject to Gaming Control Laws and other applicable laws, to
receive any and all such property as and for additional security for the
obligations secured or intended to be secured hereby. Trustor agrees to take any
action as may reasonably be necessary to evidence and perfect such liens or
security interests, including, without limitation, the execution of any
documents necessary to evidence and perfect such liens or security interests;
(M) TOGETHER WITH, to the extent permitted by applicable laws, any and all
Accounts Receivable and all royalties, earnings, income, proceeds, products,
rents, revenues, reversions, remainders, issues, profits, avails, production
payments, and other benefits directly or
9
indirectly derived or otherwise arising from any of the foregoing, all of which
are hereby assigned to Beneficiary, who, except as otherwise expressly provided
in this Deed of Trust (including the provisions of Section 1.13 hereof), is
authorized to collect and receive the same, to give receipts and acquittances
therefor and to apply the same to the Obligations secured hereunder, whether or
not then due and payable;
(N) TOGETHER WITH Proceeds of the foregoing property described in Granting
Clauses (A) through (M);
(O) TOGETHER WITH Trustor's rights further to assign, sell, lease,
encumber or otherwise transfer or dispose of the property described in Granting
Clauses (A) through (N) inclusive, above, for debt or otherwise; and
(P) EXPRESSLY EXCLUDING, HOWEVER, (i) FF&E and items described in clause
(2) of the definition of Improvements (to the extent that (a) such FF&E and
items described in clause (2) of the definition of Improvements were financed
through an FF&E Financing Agreement which together with all other FF&E Financing
Agreements shall be in an aggregate amount not to exceed $100,000,000 and (b)
such FF&E Financing Agreement prohibits the Beneficiary and the Mortgage Note
Holder(s) under the Mortgage Notes Indenture from maintaining a security
interest in the FF&E and items described in clause (2) of the definition of
Improvements covered thereby); (ii) any other assets expressly excluded from the
definition of "Note Collateral" in the Mortgage Notes Indenture; and (iii) the
HVAC Component.
Trustor, for itself and its successors and assigns, covenants and agrees
to and with Trustee that, at the time or times of the execution of and delivery
of these presents or any instrument of further assurance with respect thereto,
Trustor has good right, full power and lawful authority to assign, grant,
convey, warrant, transfer, bargain or sell its interests in the Trust Estate in
the manner and form as aforesaid, and that the Trust Estate is free and clear of
all liens and encumbrances whatsoever, except Permitted Liens, and Trustor shall
warrant and forever defend the above-bargained property in the quiet and
peaceable possession of Trustee and its successors and assigns against all and
every person or persons lawfully or otherwise claiming or to claim the whole or
any part thereof, except for Permitted Liens. Trustor agrees that any greater
title to the Trust Estate hereafter acquired by Trustor during the term hereof
shall be automatically subject hereto.
ARTICLE ONE
COVENANTS OF TRUSTOR
The Mortgage Note Holder(s) have been induced to purchase the Notes on the
basis of the following material covenants, all agreed to by Trustor:
1.1 Performance of Financing Agreements. Trustor shall perform, observe
and comply with each and every provision hereof, and with each and every
provision contained in the Financing Agreements and shall promptly pay to the
respective Funding Agents, when payment shall become due, the principal with
interest thereon and all other sums required to be paid by Trustor under this
Deed of Trust and the other Financing Agreements.
1.2 General Representations, Covenants and Warranties. Trustor represents,
covenants and warrants that: (a) Trustor has good and marketable title to an
indefeasible fee estate in
10
the Land, free and clear of all encumbrances except VCR Permitted Encumbrances,
and that it has the right to hold, occupy and enjoy its interest in the Trust
Estate, and has good right, full power and lawful authority to subject the Trust
Estate to the Lien of this Deed of Trust and pledge the same as provided herein
and Beneficiary may at all times peaceably and quietly enter upon, hold, occupy
and enjoy the entire Trust Estate in accordance with the terms hereof; (b)
Trustor is not Insolvent and no bankruptcy or insolvency proceedings are pending
or contemplated by or, to the best of Trustor's knowledge, threatened against
Trustor; (c) all costs arising from construction of any Improvements, the
performance of any labor and the purchase of all Tangible Collateral and
Improvements have been or shall be paid when due (subject to the provisions of
the Funding Agents' Disbursement and Administration Agreement, the Mortgage
Notes Indenture and this Deed of Trust); (d) the Land has frontage on, and
direct access for ingress and egress to dedicated street(s); (e) Trustor shall
at all times conduct and operate the Trust Estate in a manner so as not to lose,
or permit its affiliate to lose, the right to conduct gaming activities at the
Project; (f) no material part of the Trust Estate has been damaged, destroyed,
condemned or abandoned, other than those portions of the Trust Estate that have
been the subject of condemnation proceedings that have resulted in the
conveyance of such portion of the Trust Estate to the Trustor; (g) no part of
the Trust Estate is the subject of condemnation proceedings, other than
condemnation proceedings to convey Land to the Trustor, and Trustor has no
knowledge of any contemplated or pending condemnation proceeding with respect to
any portion of the Trust Estate other than condemnation proceedings to convey
Land to the Trustor and other than those proceedings set forth in Schedule C
attached hereto; and (h) Trustor acknowledges and agrees that it presently uses,
and has in the past used, certain trade or fictitious names in connection with
the operation of the business at the Trust Estate, including the names listed on
Schedule D attached hereto (all of the foregoing, collectively, the "Enumerated
Names"). For all purposes under this Deed of Trust it shall be deemed that the
term "Trustor" includes, in addition to "Venetian Casino Resort, LLC" and "Las
Vegas Sands, Inc." all trade or fictitious names that Venetian Casino Resort,
LLC or Las Vegas Sands, Inc. (or any successor or assign thereof) now or
hereafter uses, or has in the past used, including, without limitation, the
Enumerated Names, with the same force and effect as if this Deed of Trust had
been executed in all such names (in addition to "Venetian Casino Resort, LLC"
and "Las Vegas Sands, Inc.").
1.3 Compliance with Legal Requirements. Trustor shall promptly, fully, and
faithfully comply in all material respects with all Legal Requirements and shall
cause all portions of the Trust Estate and its use and occupancy to fully comply
in all material respects with Legal Requirements at all times, whether or not
such compliance requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, structural or nonstructural, or that
interfere with the use or enjoyment of the Trust Estate.
1.4 Taxes. Except as otherwise permitted by Section 4.05 of the Mortgage
Notes Indenture and Section 4.10 of the Funding Agents' Disbursement and
Administration Agreement, (a) Trustor shall pay all Impositions as they become
due and payable and shall deliver to Beneficiary promptly upon Beneficiary's
request, evidence satisfactory to Beneficiary that the Impositions have been
paid or are not delinquent; (b) Trustor shall not suffer to exist, permit or
initiate the joint assessment of the real and personal property, or any other
procedure whereby the lien of the real property taxes and the lien of the
personal property taxes shall be assessed, levied or charged to the Land as a
single lien, except as may be required by law; and (c) in the event of the
passage of any law deducting from the value of real property for the purposes of
taxation any lien thereon, or changing in any way the taxation of deeds of trust
or obligations secured thereby for state or local purposes, or the manner of
collecting such taxes and imposing a tax, either directly or indirectly, on this
Deed of Trust or the Notes, Trustor shall pay all such taxes and all payments
required with respect to taxes pursuant to the terms of the Cooperation
Agreement (including, without limitation, Article VI thereof).
11
1.5 Insurance.
(a) Hazard Insurance Requirements and Proceeds.
(1) Hazard Insurance. Trustor shall at its sole expense obtain
for, deliver to, assign and maintain for the benefit of Beneficiary, during the
term of this Deed of Trust, insurance policies insuring the Trust Estate and
liability insurance policies, all in accordance with the requirements of Section
4.20 of the Mortgage Notes Indenture, Section 5.19 of the Funding Agents'
Disbursement and Administration Agreement, while in effect, and Article X of the
Cooperation Agreement. Trustor shall pay promptly when due any premiums on such
insurance policies and on any renewals thereof and all payments required with
respect to the procurement of insurance pursuant to the terms of the Cooperation
Agreement (including, without limitation, Article VI thereof). In the event of
the foreclosure of this Deed of Trust or any other transfer of title to the
Trust Estate in partial or complete extinguishment of the indebtedness and other
sums secured hereby, all right, title and interest of Beneficiary in and to all
insurance policies and renewals thereof then in force shall pass to the
purchaser or grantee.
(2) Handling of Proceeds. All Proceeds from any insurance policies
shall be collected, held, handled and disbursed in accordance with the
provisions of Section 5.20 of the Funding Agents' Disbursement and
Administration Agreement, while in effect, and thereafter in accordance with
Articles X and XI of the Cooperation Agreement. Beneficiary shall have the right
to apply toward payment of all Obligations (to the extent then due and payable)
any insurance proceeds which (a) arise out of damage to property of the Trustor
(including without limitation any insurance proceeds recovered under the
policies of insurance maintained pursuant to Article X Section 2(A)(iv), (v) or
(vi) or Article X Section 2(B)(v) or (vi) of the Cooperation Agreement), (b) are
allocable to Trustor, and (c) are not required to be applied toward restoration
of the improvements on the Land pursuant to the terms of the Cooperation
Agreement. All proceeds of insurance allocable to Trustor, as owner of the Land,
and attributable to business interruption insurance shall be collected, held,
handled and disbursed in accordance with the provisions of Section 5.20 of the
Funding Agents' Disbursement and Administration Agreement, while in effect, and
thereafter, in accordance with the Cooperation Agreement. Any such proceeds
disbursed to Beneficiary shall be applied to pay amounts then due and payable
under this Deed of Trust. The balance shall be retained by Beneficiary or its
designee in an interest bearing or other investment account approved by
Beneficiary, which account Trustor hereby pledges to Beneficiary to secure the
Obligations. Disbursements shall be permitted from such account to pay expenses
reasonably incurred by Trustor in owning and operating the Trust Estate, as
reasonably approved by Beneficiary.
(b) Compliance with Insurance Policies. Trustor shall not violate or
permit to be violated any of the conditions or provisions of any policy of
insurance required by the Mortgage Notes Indenture, the Funding Agents'
Disbursement and Administration Agreement (while in effect), the Cooperation
Agreement or this Deed of Trust and Trustor shall so perform and satisfy the
requirements of the companies writing such policies that, at all times,
companies of good standing shall be willing to write and/or continue such
insurance. Trustor further covenants to promptly send to Beneficiary all notices
relating to any violation of such policies or otherwise affecting Trustor's
insurance coverage or ability to obtain and maintain such insurance coverage.
1.6 Condemnation. Subject to Article XII of the Cooperation Agreement,
Beneficiary is hereby authorized, at its option, to commence, appear in and
prosecute in its own or Trustor's name any action or proceeding relating to any
condemnation and to settle or compromise any claim in connection therewith, and
Trustor hereby appoints Beneficiary as its attorney-in-fact to take any action
in Trustor's name pursuant to Beneficiary's rights hereunder. Immediately upon
obtaining
12
knowledge of the institution of any proceedings for the condemnation of the
Trust Estate or any portion thereof, Trustor shall notify the Trustee and
Beneficiary of the pendency of such proceedings. Trustor from time to time shall
execute and deliver to Beneficiary all instruments requested by it to permit
such participation; provided, however, that such instruments shall be deemed as
supplemental to the foregoing grant of permission to Trustee and Beneficiary,
and unless otherwise required, the foregoing permission shall, without more, be
deemed sufficient to permit Trustee and/or Beneficiary to participate in such
proceedings on behalf of Trustor. All such compensation awards, damages, claims,
rights of action and Proceeds, and any other payments or relief, and the right
thereto, are, whether paid to Beneficiary or Trustor or a third party trustee,
included in the Trust Estate. Beneficiary, after deducting therefrom all its
expenses, including reasonable attorneys fees, shall apply all Proceeds paid
directly to it in accordance with the provisions of Section 4.11 of the Mortgage
Notes Indenture. All Proceeds paid directly to the Trustor shall be applied in
accordance with Section 5.20 of the Funding Agents' Disbursement and
Administration Agreement, while in effect, and thereafter in accordance with
Article XII of the Cooperation Agreement. To the extent that any condemnation
proceeds are not required to be applied towards restoration of the improvements
upon the Land, then Beneficiary shall have the right to apply said condemnation
proceeds towards repayment of the Obligations. Trustor hereby waives any rights
it may have under NRS 37.115, as amended or recodified from time to time.
1.7 Care of Trust Estate.
(a) Trustor shall preserve and maintain the Trust Estate in good
condition and repair. Trustor shall not permit, commit or suffer to exist any
waste, impairment or deterioration of the Trust Estate or of any part thereof
that in any manner materially impairs Beneficiary's security hereunder and shall
not take any action which will materially increase the risk of fire or other
hazard to the Trust Estate or to any part thereof.
(b) Except for Permitted Dispositions, no material part of the
Improvements or Tangible Collateral that are part of the Trust Estate shall be
removed, demolished or materially altered, without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed.
Trustor shall have the right, without such consent, to remove and dispose of
free from the lien of this Deed of Trust any part of the Improvements or
Tangible Collateral that are part of the Trust Estate as from time to time may
become worn out or obsolete or otherwise not useful in connection with the
operation of the Trust Estate, provided that either (i) such removal or
disposition does not materially affect the value of the Trust Estate or (ii)
prior to or promptly following such removal, any such property shall be replaced
with other property of substantially equal utility and of a value at least
substantially equal to that of the replaced property when first acquired and
free from any security interest of any other person (subject only to Permitted
Liens), and by such removal and replacement Trustor shall be deemed to have
subjected such replacement property to the lien of this Deed of Trust.
(c) Notwithstanding the foregoing provisions of this Section 1.7, the
Trustor may develop the Project in the manner contemplated by the Funding
Agents' Disbursement and Administration Agreement, the Mortgage Notes Indenture,
the other Financing Agreements and the Cooperation Agreement.
13
1.8 Leases
(a) Trustor represents and warrants that:
(i) Trustor has delivered to Beneficiary true, correct and
complete copies of all Space Leases, including all amendments and modifications,
written or oral existing as of the Issuance Date;
(ii) Trustor has not executed or entered into any modifications or
amendments of the Space Leases, either orally or in writing, other than written
amendments that have been disclosed to Beneficiary in writing;
(iii) to Trustor's knowledge, no default now exists under any
Space Lease;
(iv) to Trustor's knowledge, no event has occurred that, with the
giving of notice or the passage of time or both, would constitute such a default
or would entitle Trustor or any other party under such Space Lease to cancel the
same or otherwise avoid its obligations;
(v) Trustor has not accepted prepayments of installments of Rent
under any Space Leases, except for installment payments not in excess of one
month's Rent and security deposits;
(vi) except for the assignment effected hereby and in the other
Financing Agreements, Trustor has not executed any assignment or pledge of any
of Space Leases, the Rents, or of Trustor's right, title and interest in the
same; and
(vii) this Deed of Trust does not constitute a violation or
default under any Space Lease, and is and shall at all times constitute a valid
lien on Trustor's interests in the Space Leases.
(b) Trustor shall not enter into any Lease Transaction unless such
Lease Transaction complies with the requirements of Sections 4.24 of the
Mortgage Notes Indenture.
(c) After an Event of Default, Trustor shall deliver to Beneficiary
the executed originals of all Space Leases.
1.9 Further Encumbrance.
(a) Trustor covenants that at all times prior to the discharge of the
Mortgage Notes Indenture and the Notes, except for Permitted Liens and Permitted
Dispositions, Trustor shall neither make nor suffer to exist, nor enter into any
agreement for, any sale, assignment, exchange, mortgage, transfer, Lien,
hypothecation or encumbrance of all or any part of the Trust Estate, including,
without limitation, the Rents. As used herein, "transfer" includes the actual
transfer or other disposition, whether voluntary or involuntary, by law, or
otherwise, except those transfers specifically permitted herein, provided,
however, that "transfer" shall not include the granting of utility or other
beneficial easements with respect to the Trust Estate which have been or are
granted by Trustor and are reasonably necessary to the construction, maintenance
or operation of the Project.
14
(b) Any Permitted Lien consisting of the lien of a deed of trust which
is junior to the lien of the Mortgage Notes Indenture Security Documents, or any
other Security Document granting a security interest for the benefit of the
Mortgage Notes Indenture Trustee (a "Subordinate Deed of Trust") shall be
permitted hereunder so long as there shall have been delivered to Beneficiary,
not less than thirty (30) days prior to the date thereof, a copy thereof which
shall contain express covenants in form and substance satisfactory to
Beneficiary to the effect that: (i) the Subordinate Deed of Trust is in all
respects subject and subordinate to this Deed of Trust; (ii) if any action or
proceeding shall be brought to foreclose the Subordinate Deed of Trust
(regardless of whether the same is a judicial proceeding or pursuant to a power
of sale contained therein), no tenant of any portion of the Trust Estate shall
be named as a party defendant nor shall any action be taken with respect to the
Trust Estate which would terminate any occupancy or tenancy of the Trust Estate,
or any portion thereof, without the consent of Beneficiary; (iii) any Rents, if
collected through a receiver or by the holder of the Subordinate Deed of Trust,
shall be applied first to the obligations secured by this Deed of Trust,
including principal and interest due and owing on or to become due and owing on
the Notes, and then to the payment of maintenance expenses, operating charges,
taxes, assessments, and disbursements incurred in connection with the ownership,
operation, and maintenance of the Trust Estate; and (iv) if any action or
proceeding shall be brought to foreclose the Subordinate Deed of Trust, prompt
notice of the commencement thereof shall be given to Beneficiary. The provisions
of this Section 1.9 (b) shall not apply to the Interim Mall Space Fee Deed of
Trust.
(c) Trustor agrees that in the event the ownership of the Trust Estate
or any part thereof becomes vested in a person other than Trustor, Beneficiary
may, without notice to Trustor, deal in any way with such successor or
successors in interest with reference to this Deed of Trust, the Notes and other
Obligations hereby secured without in any way vitiating or discharging Trustor's
or any guarantor's, surety's or endorser's liability hereunder or upon the
obligations hereby secured. No sale of the Trust Estate and no forbearance to
any person with respect to this Deed of Trust and no extension to any person of
the time for payment of the Notes, and other sums hereby secured given by
Beneficiary shall operate to release, discharge, modify, change or affect the
original liability of Trustor, or such guarantor, surety or endorser either in
whole or in part.
(d) Trustor covenants and agrees to comply with all of the terms and
conditions set forth in any FF&E Financing Agreement. If Trustor shall fail to
make any payment required to be made by it under any FF&E Financing Agreement,
except where Trustor is contesting such payment in good faith, then the
Beneficiary shall be entitled to make such payment on Trustor's behalf and any
and all sums so expended by the Beneficiary shall be secured by this Deed of
Trust and shall be repaid by Trustor upon demand, together with interest thereon
at the interest at the rate applicable to overdue principal set forth in Section
4.01 of the Mortgage Notes Indenture from the date of advance.
1.10 Partial Releases of Trust Estate.
(a) Trustor may from time to time make a Permitted Disposition
including, but not limited to, (i) transferring a portion of the Trust Estate
(including any temporary taking) to any person legally empowered to exercise the
power of eminent domain, (ii) granting utility easements reasonably necessary or
desirable for the construction and/or operation of the Project, which grant or
transfer is for the benefit of the Trust Estate, or (iii) transferring a portion
of the Trust Estate as permitted pursuant to Sections 5.16 (b), (c) and (d) of
the Funding Agents' Disbursement and Administration Agreement. In each such
case, Beneficiary shall execute and deliver any instruments necessary or
appropriate to effectuate or confirm any such transfer or grant, free from the
lien of this Deed of Trust, provided, however, that Beneficiary shall execute a
lien release or subordination agreement, as appropriate, for matters described
in clauses (i) and (iii) above only if:
15
(A) Beneficiary and Trustee shall have received an
Officer's Certificate if required by Section 4.10 of the Mortgage
Notes Indenture;
(B) Such transfer, grant or release is not prohibited by
the Mortgage Notes Indenture and all conditions precedent
contained in the Mortgage Notes Indenture for such transfer,
grant or release, if any, shall have been satisfied;
(C) Beneficiary and Trustee shall have received a
counterpart of the instrument pursuant to which such transfer,
grant or release is to be made, and each instrument which
Beneficiary or Trustee is requested to execute in order to
effectuate or confirm such transfer, grant or release;
(D) In the case of a transfer to a person legally
empowered to exercise the power of eminent domain, which transfer
involves property whose value is greater than $5,000,000,
Beneficiary and Trustee shall have received an opinion of
counsel, who may be counsel to Trustor, to the effect that the
assignee or grantee of the portion of the Trust Estate being
transferred is legally empowered to take such portion under the
power of eminent domain; and
(E) Beneficiary and Trustee shall have received such
other instruments, certificates (including evidence of authority)
and opinions as Beneficiary or Trustee may reasonably request,
including, but not limited to, opinions that the proposed release
is permitted by this Section 1.10.
(b) Any consideration received for a transfer to any person
empowered to exercise the right of eminent domain shall be subject to Section
1.6 hereof.
1.11 Further Assurances.
(a) At its sole cost and without expense to Trustee or Beneficiary,
and subject in all events to compliance with the Gaming Control Laws and other
applicable Legal Requirements, Trustor shall do, execute, acknowledge and
deliver any and all such further acts, deeds, conveyances, notices, requests for
notices, financing statements, continuation statements, certificates,
assignments, notices of assignments, agreements, instruments and further
assurances, and shall xxxx any chattel paper, deliver any chattel paper or
instruments to Beneficiary and take any other actions that are necessary,
prudent, or reasonably requested by Beneficiary or Trustee to perfect or
continue the perfection and first priority of Beneficiary's security interest in
the Trust Estate, to protect the Trust Estate against the rights, claims, or
interests of third persons other than holders of Permitted Liens or to effect
the purposes of this Deed of Trust, including the security agreement and the
absolute assignment of Rents contained herein, or for the filing, registering or
recording thereof.
(b) Trustor shall forthwith upon the execution and delivery of this
Deed of Trust, and thereafter from time to time, cause this Deed of Trust and
each instrument of further assurance to be filed, indexed, registered, recorded,
given or delivered in such manner and in such places as may be required by any
present or future law in order to publish notice of and fully to protect the
lien hereof upon, and the title of Trustee and/or Beneficiary to, the Trust
Estate.
1.12 Security Agreement and Financing Statements.
Trustor (as debtor) hereby grants to Beneficiary (as creditor and
secured party) a present and future security interest in all Tangible
Collateral, Intangible Collateral, FF&E (to the extent Beneficiary is not
prohibited, in each applicable
16
FF&E Financing Agreement, to maintain a security interest therein), Improvements
(to the extent, in the case of Improvements described in clause (2) of the
definition thereof, that Beneficiary is not prohibited in each applicable FF&E
Financing Agreement covering such Improvements, to maintain a security interest
therein), all other personal property now or hereafter owned or leased by
Trustor or in which Trustor has or will have any interest, to the extent that
such property constitutes a part of the Trust Estate (whether or not such items
are stored on the premises or elsewhere), Proceeds of the foregoing comprising a
portion of the Trust Estate and all proceeds of insurance policies and
consideration awards arising therefrom and all proceeds, products,
substitutions, and accessions therefor and thereto, subject to Beneficiary's
rights to treat such property as real property as herein provided (collectively,
the "Personal Property"). Trustor shall execute any and all documents and
writings, including without limitation financing statements pursuant to the UCC,
as may be necessary or prudent to preserve and maintain the priority of the
security interest granted hereby on property which may be deemed subject to the
foregoing security agreement or as Beneficiary may reasonably request, and shall
pay to Beneficiary on demand any reasonable expenses incurred by Beneficiary in
connection with the preparation, execution and filing of any such documents.
Trustor hereby authorizes and empowers Beneficiary to execute and file, on
Trustor's behalf, all financing statements and refiling and continuations
thereof as advisable to create, preserve and protect said security interest.
This Deed of Trust constitutes both a real property deed of trust and a
"security agreement," within the meaning of the UCC, and the Trust Estate
includes both real and personal property and all other rights and interests,
whether tangible or intangible in nature, of Trustor in the Trust Estate.
Trustor by executing and delivering this Deed of Trust has granted to
Beneficiary, as security of the Obligations, a security interest in the Trust
Estate.
(a) Fixture Filing. Without in any way limiting the generality
of the immediately preceding paragraph or of the definition of the Trust Estate,
this Deed of Trust constitutes a fixture filing under Sections 9-313 and 9-402
of the UCC (NRS 104.9313 and 104.9402). For such purposes, (i) the "debtor" is
Trustor and its address is the address given for it in the initial paragraph of
this Deed of Trust; (ii) the "secured party" is Beneficiary, and its address for
the purpose of obtaining information is the address given for it in the initial
paragraph of this Deed of Trust; (iii) the real estate to which the fixtures are
or are to become attached is Trustor's interest in the Land; and (iv) the record
owner of such real estate is Trustor.
(b) Remedies. This Deed of Trust shall be deemed a security
agreement as defined in the UCC and the remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall include
any or all of (i) those prescribed herein, and (ii) those available under
applicable law, and (iii) those available under the UCC, all at Beneficiary's
sole election. In addition, a photographic or other reproduction of this Deed of
Trust shall be sufficient as a financing statement for filing wherever filing
may be necessary to perfect or continue the security interest granted herein.
(c) Derogation of Real Property. It is the intention of the
parties that the filing of a financing statement in the records normally having
to do with personal property shall never be construed as in anyway derogating
from or impairing the express declaration and intention of the parties hereto as
hereinabove stated that everything used in connection with the production of
income from the Trust Estate and/or adapted for use therein and/or which is
described or reflected in this Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable, shall be regarded as
part of the real property encumbered by this Deed of Trust irrespective of
whether (i) any such item is physically attached to the Improvements, (ii)
serial numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or in any list
filed with Beneficiary, or (iii) any such item is referred to or reflected in
any such financing statement so filedat any time. It is the intention of the
parties that the mention in any such financing statement of (1) rights
17
in or to the proceeds of any fire and/or hazard insurance policy, or (2) any
award in eminent domain proceedings for a taking or for loss of value, or (3)
Trustor's interest as lessors in any present or future Space Lease or rights to
Rents, shall never be construed as in anyway altering any of the rights of
Beneficiary as determined by this Deed of Trust or impugning the priority of
Beneficiary's real property lien granted hereby or by any other recorded
document, but such mention in the financing statement is declared to be for the
protection of Beneficiary in the event any court or judge shall at any time hold
with respect to the matters set forth in the foregoing clauses (1), (2) and (3)
that notice of Beneficiary's priority of interest to be effective against a
particular class of persons, including but not limited to, the federal
government and any subdivisions or entity of the federal government, must be
filed in the UCC records.
(d) Priority; Permitted Financing of Tangible Collateral. All
Personal Property of any nature whatsoever which is subject to the provisions of
this security agreement shall be purchased or obtained by Trustor in its name
and free and clear of any lien or encumbrance, except for Permitted Liens and
the lien hereof, for use only in connection with the business and operation of
the Project, and shall be and at all times remain free and clear of any lease or
similar arrangement, chattel financing, installment sale agreement, security
agreement and any encumbrance of like kind, so that Beneficiary's security
interest shall attach to and vest in Trustor for the benefit of Beneficiary,
with the priority herein specified, immediately upon the installation or use of
the Personal Property at the Land and Trustor warrants and represents that
Beneficiary's security interest in the Personal Property is a validly attached
and binding security interest, properly perfected and prior to all other
security interests therein except as otherwise permitted in this Deed of Trust.
The foregoing shall not be construed as limiting Trustor's rights to transfer
Personal Property pursuant to Permitted Dispositions or to obtain releases of
Personal Property from the Lien of this Deed of Trust pursuant to Section 1.10
hereof.
(e) Preservation of Contractual Rights of Collateral. Trustor
shall, prior to delinquency, default, or forfeiture, perform all obligations and
satisfy all material conditions required on its part to be satisfied to preserve
its rights and privileges under any contract, lease, license, permit, or other
authorization (i) under which it holds any Tangible Collateral or (ii) which
constitutes part of the Intangible Collateral, except where Trustor is
contesting such obligations in good faith.
(f) Removal of Collateral. Except as permitted by the Funding
Agents' Disbursement and Administration Agreement (while in effect), and except
for damaged or obsolete Tangible Collateral which is either no longer usable or
which is removed temporarily for repair or improvement or removed for
replacement on the Trust Estate with Tangible Collateral of similar function or
as otherwise permitted herein, none of the Tangible Collateral shall be removed
from the Trust Estate without Beneficiary's prior written consent.
(g) Change of Name. Trustor shall not change its corporate or
business name, or do business within the State of Nevada under any name other
than such name, or any trade name(s) other than those as to which Trustor gives
prior written notice to Beneficiary of its intent to use such trade names, or
any other business names (if any) specified in the financing statements
delivered to Beneficiary for filing in connection with the execution hereof,
without providing Beneficiary with the additional financing statement(s) and any
other similar documents deemed reasonably necessary by Beneficiary to assure
that its security interest remains perfected and of undiminished priority in all
such Personal Property notwithstanding such name change.
1.13 Assignment of Leases and Rents. Subject to Gaming Control
Laws and other applicable Legal Requirements, the assignment of Leases and Rents
set out above in Granting Clause (G) shall constitute an absolute and present
assignment to Beneficiary, subject to the license herein given to
18
Trustor to collect the Rents, and shall be fully operative without any further
action on the part of any party, and specifically Beneficiary shall be entitled
upon the occurrence of an Event of Default hereunder to all Rents and to enter
upon the Land and the Improvements to collect such Rents, provided, however,
that Beneficiary shall not be obligated to take possession of the Trust Estate,
or any portion thereof. The absolute assignment contained in Granting Clause (G)
shall not be deemed to impose upon Beneficiary any of the obligations or duties
of Trustor provided in any such Space Lease (including, without limitation, any
liability under the covenant of quiet enjoyment contained in any lease in the
event that any lessee shall have been joined as a party defendant in any action
to foreclose this Deed of Trust and shall have been barred and foreclosed
thereby of all right, title and interest and equity of redemption in the Trust
Estate or any part thereof).
1.14 Expenses.
(a) Trustor shall pay when due and payable all costs,
including without limitation, those reasonable appraisal fees, recording fees,
taxes, abstract fees, title policy fees, escrow fees, attorneys' and paralegal
fees, travel expenses, fees for inspecting architect(s) and engineer(s) and all
other reasonable costs and expenses of every character which may hereafter be
incurred by Beneficiary or any assignee of Beneficiary in connection with the
preparation and execution of amendments to the Mortgage Notes Indenture and the
Mortgage Notes Indenture Security Documents or instruments, agreements or
documents of further assurance, the funding of the indebtedness secured hereby,
and the enforcement of any Mortgage Notes Indenture Security Document; and
(b) Trustor shall, upon demand by Beneficiary, reimburse
Beneficiary or any assignee of Beneficiary for all such reasonable expenses
which have been incurred or which shall be incurred by it; and
(c) Trustor shall indemnify Beneficiary with respect to any
transaction or matter in any way connected with any portion of the Trust Estate,
this Deed of Trust, including any occurrence at, in, on, upon or about the Trust
Estate (including any personal injury, loss of life, or property damage), or
Trustor's use, occupancy, or operation of the Trust Estate, or the filing or
enforcement of any mechanic's lien, or otherwise caused in whole or in part by
any act, omission or negligence occurring on or at the Trust Estate, including
failure to comply with any Legal Requirement or with any requirement of this
Deed of Trust that applies to Trustor, except to the extent resulting from the
gross negligence, fraud or willful misconduct of Trustee or Beneficiary. If
Beneficiary is a party to any litigation as to which either Trustor is required
to indemnify Beneficiary (or is made a defendant in any action of any kind
against Trustor or relating directly or indirectly to any portion of the Trust
Estate) then, at Beneficiary's option, Trustor shall undertake Beneficiary's
defense, using counsel reasonably satisfactory to Beneficiary (and any
settlement shall be subject to Beneficiary's consent, which consent shall not be
unreasonably withheld), and in any case shall indemnify Beneficiary against such
litigation. Trustor shall pay all reasonable costs and expenses, including
reasonable legal costs, that Beneficiary pays or incurs in connection with any
such litigation. Any amount payable under any indemnity in this Deed of Trust
shall be a demand obligation, shall be added to, and become a part of, the
secured obligations under this Deed of Trust, shall be secured by this Deed of
Trust, and shall bear interest at the interest rate specified in the Mortgage
Notes Indenture. Such indemnity shall survive any release of this Deed of Trust
and any foreclosure.
1.15 Beneficiary's Cure of Trustor's Default. If Trustor defaults
hereunder in the payment of any tax, assessment, lien, encumbrance or other
Imposition, in its obligation to furnish insurance hereunder, or in the
performance or observance of any other covenant, condition or term of this Deed
of Trust or any other Financing Agreement or the Cooperation Agreement or any
FF&E
19
Financing Agreement, Beneficiary may, but is not obligated to, to preserve
its interest in the Trust Estate, perform or observe the same, and all payments
made (whether such payments are regular or accelerated payments) and reasonable
costs and expenses incurred or paid by Beneficiary in connection therewith shall
become due and payable immediately. The amounts so incurred or paid by
Beneficiary, together with interest thereon at the interest rate applicable to
overdue principal set forth in Section 4.01 of the Mortgage Notes Indenture,
from the date incurred until paid by Trustor, shall be added to the indebtedness
and secured by the lien of this Deed of Trust. Beneficiary, is hereby empowered
to enter and to authorize others to enter upon the Land or any part thereof for
the purpose of performing or observing any such defaulted covenant, condition or
term, without thereby becoming liable to Trustor or any person in possession
holding under Trustor. No exercise of any rights under this Section 1.15 by
Beneficiary shall cure or waive any Event of Default or notice of default
hereunder or invalidate any act done pursuant hereto or to any such notice, but
shall be cumulative of all other rights and remedies.
1.16 Use of Land. Trustor covenants that the Trust Estate shall
be (i) used and operated in a manner reasonably consistent with the description
of the Project in the Cooperation Agreement and (ii) open during such days and
hours as are customarily observed by casino-hotels located in Las Vegas, Nevada,
reasonably consistent with the provisions of the Cooperation Agreement
(including those provisions thereof that permit the Project not to be opened).
1.17 Compliance with Permitted Lien Agreements. Trustor or any
Affiliate of Trustor shall comply with each and every material obligation
contained in any agreement pertaining to a material Permitted Lien, including,
without limitation, any obligations set forth in the Cooperation Agreement, the
HVAC Ground lease or the Mall Lease, to the extent applying to the owner of all
or any part of the Trust Estate.
1.18 Defense of Actions. Trustor shall appear in and defend any
action or proceeding affecting or purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee, and shall pay all costs and
expenses, including cost of title search and insurance or other evidence of
title, preparation of survey, and reasonable attorneys' fees in any such action
or proceeding in which Beneficiary or Trustee may appear or may be joined as a
party and in any suit brought by Beneficiary based upon or in connection with
this Deed of Trust or any Mortgage Notes Indenture Security Document. Nothing
contained in this section shall, however, limit the right of Beneficiary to
appear in such action or proceeding with counsel of its own choice, either on
its own behalf or on behalf of Trustor.
1.19 Affiliates.
(a) Subject to Trust Deed. Subject to compliance with the
requirements of applicable Gaming Control Laws, Trustor shall cause all of its
Affiliates in any way involved with the operation of the Trust Estate or the
Project to observe the covenants and conditions of this Deed of Trust to the
extent necessary to give the full intended effect to such covenants and
conditions and to protect and preserve the security of Beneficiary hereunder.
Trustor shall, at Beneficiary's request, cause any such Affiliate to execute and
deliver to Beneficiary or Trustee such further instruments or documents as
Beneficiary may reasonably deem necessary to effectuate the terms of this
Section 1.19.
(b) Restriction on Use of Subsidiary or Affiliate. Except as
permitted under the Mortgage Notes Indenture, the Notes, the Mortgage Notes
Indenture Security Documents or any other Security Document granting a security
interest for the benefit of the Beneficiary, Trustor shall not use any Affiliate
in the operation of the Trust Estate or the Project if such use would in any way
impair the
20
security for the Notes and the Mortgage Notes Indenture or circumvent
any covenant or condition of this Deed of Trust or of any other Mortgage Notes
Indenture Security Document.
1.20 Title Insurance. Promptly after the execution and delivery
of this Deed of Trust, Trustor shall cause to be delivered to Trustee at
Trustor's expense, one or more ALTA extended coverage Lender's Policies of Title
Insurance showing fee title to the real property situated in the County of
Xxxxx, State of Nevada, more specifically described in Schedule A attached
hereto, vested in Trustor and the lien of this Deed of Trust to be a perfected
lien, prior to any and all encumbrances other than VCR Permitted Encumbrances
(excluding, however, any such non-VCR Permitted Encumbrances for which the Title
Insurer has agreed to provide an endorsement or affirmative coverage protecting
the lien of this Deed of Trust against such non-VCR Permitted Encumbrances).
ARTICLE TWO
CORPORATE LOAN PROVISIONS
2.1 Interaction with Mortgage Notes Indenture.
(a) Incorporation by Reference. All terms, covenants,
conditions, provisions and requirements of the Mortgage Notes Indenture are
incorporated by reference in this Deed of Trust.
(b) Conflicts. In the event of any conflict or inconsistency
between the provisions of this Deed of Trust and those of the Mortgage Notes
Indenture or the Funding Agents' Disbursement and Administration Agreement, the
provisions of the Mortgage Notes Indenture or the Funding Agents' Disbursement
and Administration Agreement, as applicable, shall govern. Trustor agrees that
notwithstanding any provisions of the Mortgage Notes Indenture or the Funding
Agents' Disbursement and Administration Agreement to the contrary, Trustor shall
not amend any of the agreements described in Section 2.4, except with the prior
written consent of the Beneficiary.
2.2 Other Collateral. This Deed of Trust is one of a number of
security agreements to secure the debt delivered by or on behalf of Trustor
pursuant to the Mortgage Notes Indenture and the other Mortgage Notes Indenture
Security Documents and securing the Obligations secured hereunder. All potential
junior Lien claimants are placed on notice that, under any of the Mortgage Notes
Indenture Security Documents and each other Security Document granting a
security interest to the Beneficiary or otherwise (such as by separate future
unrecorded agreement between Trustor and Beneficiary), other collateral for the
Obligations secured hereunder (i.e., collateral other than the Trust Estate)
may, under certain circumstances, be released without a corresponding reduction
in the total principal amount secured by this Deed of Trust. Such a release
would decrease the amount of collateral securing the same indebtedness, thereby
increasing the burden on the remaining Trust Estate created and continued by
this Deed of Trust. No such release shall impair the priority of the lien of
this Deed of Trust. By accepting its interest in the Trust Estate, each and
every junior Lien claimant shall be deemed to have acknowledged the possibility
of, and consented to, any such release. Nothing in this paragraph shall impose
any obligation upon Beneficiary.
2.3 Subordination to Bank Fee Deed of Trust. Notwithstanding any
other provision hereof, this Deed of Trust, including, without limitation, the
security interest granted herein, the rights, powers and remedies of the Trustee
and the Beneficiary and the obligations of Trustor set forth herein, shall, to
the extent provided in the Intercreditor Agreement, be subject and subordinate
to the Bank Fee Deed of Trust.
21
2.4 Subordination to Cooperation Agreement, Mall Lease, the
Billboard Master Lease and HVAC Ground Lease. Beneficiary hereby (a)
subordinates this Deed of Trust and the lien hereof to the Cooperation
Agreement, the Mall Lease, the Billboard Master Lease and the HVAC Ground Lease
(as in effect as of the date hereof) and to the rights, interest, obligations,
duties, conditions, covenants and agreements granted pursuant to the Cooperation
Agreement, the Mall Lease, the Billboard Master Lease and the HVAC Ground Lease
(as in effect as of the date hereof) and (b) agrees to be bound by the terms and
conditions of the Cooperation Agreement, the Mall Lease, the Master Billboard
Lease and the HVAC Ground Lease (as in effect as of the date hereof) upon its
taking title to the Trust Estate.
ARTICLE THREE
DEFAULTS
3.1 Event of Default. The term "Event of Default," wherever used
in this Deed of Trust, shall mean any of (i) one or more of the events of
default listed in Section 6.01 of the Mortgage Notes Indenture or (ii) so long
as the Funding Agents' Disbursement and Administration Agreement is in effect,
one or more of the events of default listed in Section 7.1 of the Funding
Agents' Disbursement and Administration Agreement (whether any such event shall
be voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body).
ARTICLE FOUR
REMEDIES
4.1 Acceleration of Maturity. If an Event of Default occurs,
Beneficiary may (except that such acceleration shall be automatic if the Event
of Default is caused by reason of an Event of Default under Section 6.01(h) or
(i) of the Mortgage Notes Indenture), in accordance with Section 6.02 of the
Mortgage Notes Indenture, declare the Notes and all indebtedness or sums secured
hereby, to be due and payable immediately, and upon such declaration such
principal and interest and other sums shall immediately become due and payable
without demand, presentment, notice or other requirements of any kind (all of
which Trustor waives) notwithstanding anything in this Deed of Trust or any
Mortgage Notes Indenture Security Document or applicable law to the contrary.
4.2 Protective Advances. If Trustor fails to make any payment or
perform any other obligation under the Notes or any other Financing Agreement,
then without thereby limiting Beneficiary's other rights or remedies, waiving or
releasing any of Trustor's obligations, or imposing any obligation on
Beneficiary, Beneficiary may either advance any amount owing or perform any or
all actions that Beneficiary considers necessary or appropriate to cure such
default. All such advances shall constitute "Protective Advances." No sums
advanced or performance rendered by Beneficiary shall cure, or be deemed a
waiver of any Event of Default.
4.3 Institution of Equity Proceedings. If an Event of Default
occurs, Beneficiary may institute an action, suit or proceeding in equity for
specific performance of this Deed of Trust, the Notes, any Mortgage Notes
Indenture Security Document or any other Security Document which grants a
security interest for the benefit of the Beneficiary, all of which shall be
specifically enforceable by injunction or other equitable remedy. Trustor waives
any defense based on laches or any applicable statute of limitations.
22
4.4 Beneficiary's Power of Enforcement.
(a) If an Event of Default occurs, Beneficiary shall be
entitled, at its option and in its sole and absolute discretion, to prepare and
record on its own behalf, or to deliver to Trustee for recording, if
appropriate, written declaration of default and demand for sale and written
Notice of Breach and Election to Sell (NRS 107.080(3)) (or other statutory
notice) to cause the Trust Estate to be sold to satisfy the obligations hereof,
and in the case of delivery to Trustee, Trustee shall cause said notice to be
filed for record.
(b) After the lapse of such time as may then be required by
law following the recordation of said Notice of Breach and Election to Sell, and
notice of sale having been given as then required by law, including compliance
with all applicable Gaming Control Laws, Trustee without demand on Trustor,
shall sell the Trust Estate or any portion thereof at the time and place fixed
by it in said notice, either as a whole or in separate parcels, and in such
order as it may determine, at public auction to the highest bidder, of cash in
lawful money of the United States payable at the time of sale. Trustee may, for
any cause it deems expedient, postpone the sale of all or any portion of said
property until it shall be completed and, in every case, notice of postponement
shall be given by public announcement thereof at the time and place last
appointed for the sale and from time to time thereafter Trustee may postpone
such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall execute and deliver to the purchaser its Deed, Xxxx
of Sale, or other instrument conveying said property so sold, but without any
covenant or warranty, express or implied. The recitals in such instrument of
conveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including Beneficiary, may bid at the sale.
(c) After deducting all costs, fees and expenses of Trustee
and of this Deed of Trust, including, without limitation, costs of evidence of
title and reasonable attorneys' fees and other legal expenses of Trustee or
Beneficiary in connection with a sale, Trustee shall apply the proceeds of such
sale to payment of all sums expended under the terms hereof not then repaid,
with accrued interest at the rate applicable to overdue principal set forth in
Section 4.01 of the Mortgage Notes Indenture to the payment of all other sums
then secured hereby and the remainder, if any, to the person or persons legally
entitled thereto as provided in NRS 40.462.
(d) Subject to compliance with applicable Gaming Control Laws,
if any Event of Default occurs, Beneficiary may, either with or without entry or
taking possession of the Trust Estate, and without regard to whether or not the
indebtedness and other sums secured hereby shall be due and without prejudice to
the right of Beneficiary thereafter to bring an action or proceeding to
foreclose or any other action for any default existing at the time such earlier
action was commenced, proceed by any appropriate action or proceeding: (1) to
enforce payment of the Notes, to the extent permitted by law, or the performance
of any term hereof or any other right; (2) to foreclose this Deed of Trust in
any manner provided by law for the foreclosure of mortgages or deeds of trust on
real property and to sell, as an entirety or in separate lots or parcels, the
Trust Estate or any portion thereof pursuant to the laws of the State of Nevada
or under the judgment or decree of a court or courts of competent jurisdiction,
and Beneficiary shall be entitled to recover in any such proceeding all costs
and expenses incident thereto, including reasonable attorneys' fees in such
amount as shall be awarded by the court; (3) to exercise any or all of the
rights and remedies available to it under the Mortgage Notes Indenture; and (4)
to pursue any other remedy available to it. Beneficiary shall take action either
by such proceedings or by the exercise of its powers with respect to entry or
taking possession, or both, as Beneficiary may determine.
(e) The remedies described in this Section 4.4 may be
exercised with respect to all or any portion of the Personal Property, either
simultaneously with the sale of any real property
23
encumbered hereby or independent thereof. Beneficiary shall at any time be
permitted to proceed with respect to all or any portion of the Personal Property
in any manner permitted by the UCC. Trustor agrees that Beneficiary's inclusion
of all or any portion of the Personal Property (and all personal property that
is subject to a security interest in favor, or for the benefit, of Beneficiary)
in a sale or other remedy exercised with respect to the real property encumbered
hereby, as permitted by the UCC, is a commercially reasonable disposition of
such property.
4.5 Beneficiary's Right to Enter and Take Possession, Operate and
Apply Income.
(a) Subject to compliance with applicable Gaming Control Laws,
if an Event of Default occurs, (i) Trustor, upon demand of Beneficiary, shall
forthwith surrender to Beneficiary the actual possession and, if and to the
extent permitted by law, Beneficiary itself, or by such officers or agents as it
may appoint, may enter and take possession of all the Trust Estate including the
Personal Property, without liability for trespass, damages or otherwise, and may
exclude Trustor and its agents and employees wholly therefrom and may have joint
access with Trustor to the books, papers and accounts of Trustor; and (ii)
Trustor shall pay monthly in advance to Beneficiary on Beneficiary's entry into
possession, or to any receiver appointed to collect the Rents, all Rents then
due and payable.
(b) If Trustor shall for any reason fail to surrender or
deliver the Trust Estate, the Personal Property or any part thereof after
Beneficiary's demand, Beneficiary may obtain a judgment or decree conferring on
Beneficiary or Trustee the right to immediate possession or requiring Trustor to
deliver immediate possession of all or part of such property to Beneficiary or
Trustee and Trustor hereby specifically consents to the entry of such judgment
or decree. Trustor shall pay to Beneficiary or Trustee, upon demand, all
reasonable costs and expenses of obtaining such judgment or decree and
reasonable compensation to Beneficiary or Trustee, their attorneys and agents,
and all such costs, expenses and compensation shall, until paid, be secured by
the lien of this Deed of Trust.
(c) Subject to compliance with applicable Gaming Control Laws,
upon every such entering upon or taking of possession, Beneficiary or Trustee
may hold, store, use, operate, manage and control the Trust Estate and conduct
the business thereof, and, from time to time in its sole and absolute discretion
and without being under any duty to so act:
(1) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures, personalty and
other property;
(2) insure or keep the Trust Estate insured;
(3) manage and operate the Trust Estate and exercise all
the rights and xxxxxx of Trustor in their name or otherwise with respect to the
same;
(4) enter into agreements with others to exercise the
powers herein granted Beneficiary or Trustee, all as Beneficiary or Trustee from
time to time may determine; and, subject to the absolute assignment of the
Leases and Rents to Beneficiary, Beneficiary or Trustee may collect and receive
all the Rents, including those past due as well as those accruing thereafter;
and shall apply the monies so received by Beneficiary or Trustee in such
priority as Beneficiary may determine to (1) the payment of interest and
principal due and payable on the Notes, (2) the deposits for taxes and
assessments and insurance premiums due, (3) the cost of insurance, taxes,
assessments and other proper charges upon the Trust Estate or any part thereof;
(4) the compensation, expenses and disbursements of
24
the agents, attorneys and other representatives of Beneficiary or Trustee; and
(5) any other charges or costs required to be paid by Trustor under the terms
hereof; and
(5) rent or sublet the Trust Estate or any portion
thereof for any purpose permitted by this Deed of Trust.
Beneficiary or Trustee shall surrender possession of the Trust
Estate and the Personal Property to Trustor only when all that is due upon such
interest and principal, tax and insurance deposits, and all amounts under any of
the terms of the Mortgage Notes Indenture or this Deed of Trust, shall have been
paid and all defaults made good. The same right of taking possession, however,
shall exist if any subsequent Event of Default shall occur and be continuing.
4.6 Leases. Beneficiary is authorized to foreclose this Deed of
Trust subject to the rights of any tenants of the Trust Estate, and the failure
to make any such tenants parties defendant to any such foreclosure proceedings
and to foreclose their rights shall not be, nor be asserted by Trustor to be, a
defense to any proceedings instituted by Beneficiary to collect the sums secured
hereby or to collect any deficiency remaining unpaid after the foreclosure sale
of the Trust Estate, or any portion thereof. Unless otherwise agreed by
Beneficiary in writing, all Space Leases executed subsequent to the date hereof,
or any part thereof, shall be subordinate and inferior to the lien of this Deed
of Trust; provided, however that (i) in accordance with the terms of Section
4.24 of the Mortgage Notes Indenture, Beneficiary may be required to execute a
non-disturbance and attornment agreement in connection with certain Lease
Transactions; and (ii) from time to time Beneficiary may execute and record
among the land records of the jurisdiction where this Deed of Trust is recorded,
subordination statements with respect to such of said Space Leases as
Beneficiary may designate in its sole discretion, whereby the Space Leases so
designated by Beneficiary shall be made superior to the lien of this Deed of
Trust for the term set forth in such subordination statement. From and after the
recordation of such subordination statements, and for the respective periods as
may be set forth therein, the Space Leases therein referred to shall be superior
to the lien of this Deed of Trust and shall not be affected by any foreclosure
hereof. All such Space Leases shall contain a provision to the effect that the
Trustor and Space Lessee recognize the right of Beneficiary to elect and to
effect such subordination of this Deed of Trust and consents thereto.
4.7 Purchase by Beneficiary. Upon any foreclosure sale (whether
judicial or nonjudicial), Beneficiary may bid for and purchase the property
subject to such sale and, upon compliance with the terms of sale, may hold,
retain and possess and dispose of such property in its own absolute right
without further accountability.
4.8 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Trustor agrees to the full extent permitted by law that if an
Event of Default occurs, neither Trustor nor anyone claiming through or under it
shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Deed of Trust
or the absolute sale of the Trust Estate or any portion thereof or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereof, and Trustor for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprising the Trust Estate marshalled upon any foreclosure of the lien hereof
and agrees that Trustee or any court having jurisdiction to foreclose such lien
may sell the Trust Estate in part or as an entirety.
25
4.9 Receiver. If an Event of Default occurs, Beneficiary, to the
extent permitted by law and subject to compliance with all applicable Gaming
Control Laws, and without regard to the value, adequacy or occupancy of the
security for the indebtedness and other sums secured hereby, shall be entitled
as a matter of right if it so elects to the appointment of a receiver to enter
upon and take possession of the Trust Estate and to collect all Rents and apply
the same as the court may direct, and such receiver may be appointed by any
court of competent jurisdiction upon application by Beneficiary. Beneficiary may
have a receiver appointed without notice to Trustor or any third party, and
Beneficiary may waive any requirement that the receiver post a bond. Beneficiary
shall have the power to designate and select the Person who shall serve as the
receiver and to negotiate all terms and conditions under which such receiver
shall serve. Any receiver appointed on Beneficiary's behalf may be an Affiliate
of Beneficiary. The expenses, including receiver's fees, attorneys' fees, costs
and agent's compensation, incurred pursuant to the powers herein contained shall
be secured by this Deed of Trust. The right to enter and take possession of and
to manage and operate the Trust Estate and to collect all Rents, whether by a
receiver or otherwise, shall be cumulative to any other right or remedy
available to Beneficiary under this Deed of Trust, the Mortgage Notes Indenture
or otherwise available to Beneficiary and may be exercised concurrently
therewith or independently thereof. Beneficiary shall be liable to account only
for such Rents (including, without limitation, security deposits) actually
received by Beneficiary, whether received pursuant to this section or any other
provision hereof. Notwithstanding the appointment of any receiver or other
custodian, Beneficiary shall be entitled as pledgee to the possession and
control of any cash, deposits, or instruments at the time held by, or payable or
deliverable under the terms of this Deed of Trust to, Beneficiary.
4.10 Suits to Protect the Trust Estate. Beneficiary shall have
the power and authority to institute and maintain any suits and proceedings as
Beneficiary, in its sole and absolute discretion, may deem advisable (a) to
prevent any impairment of the Trust Estate by any acts which may be unlawful or
in violation of this Deed of Trust, (b) to preserve or protect its interest in
the Trust Estate, or (c) to restrain the enforcement of or compliance with any
legislation or other Legal Requirement that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Beneficiary's interest.
4.11 Proofs of Claim. In the case of any receivership,
Insolvency, Bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings affecting Trustor, or, to the extent the same would
result in an Event of Default hereunder, any Subsidiary, or any guarantor,
co-maker or endorser of any of Trustor's obligations, its creditors or its
property, Beneficiary, to the extent permitted by law, shall be entitled to file
such proofs of claim or other documents as it may deem to be necessary or
advisable in order to have its claims allowed in such proceedings for the entire
amount due and payable by Trustor under the Notes, any other Mortgage Notes
Indenture Security Document or any other Security Document, at the date of the
institution of such proceedings, and for any additional amounts which may become
due and payable by Trustor after such date.
4.12 Trustor to Pay the Notes on Any Default in Payment;
Application of Monies by Beneficiary.
(a) In case of a foreclosure sale of all or any part of the
Trust Estate and of the application of the proceeds of sale to the payment of
the sums secured hereby, Beneficiary shall be entitled to enforce payment from
Trustor of any additional amounts then remaining due and unpaid and to recover
judgment against Trustor for any portion thereof remaining unpaid, with interest
at the rate applicable to overdue principal as set forth in Section 4.01 of the
Mortgage Notes Indenture.
26
(b) Trustor hereby agrees to the extent permitted by law, that
no recovery of any such judgment by Beneficiary or other action by Beneficiary
and no attachment or levy of any execution upon any of the Trust Estate or any
other property shall in any way affect the Lien and security interest of this
Deed of Trust upon the Trust Estate or any part thereof or any Lien, rights,
powers or remedies of Beneficiary hereunder, but such Lien, rights, powers and
remedies shall continue unimpaired as before.
(c) Any monies collected or received by Beneficiary under this
Section 4.12 shall be first applied to the payment of reasonable compensation,
expenses and disbursements of the agents, attorneys and other representatives of
Beneficiary, and the balance remaining shall be applied to the payment of
amounts due and unpaid under the Notes.
(d) The provisions of this section shall not be deemed to
limit or otherwise modify the provisions of any guaranty of the indebtedness
evidenced by the Notes.
4.13 Delay or Omission; No Waiver. No delay or omission of
Beneficiary or any Mortgage Note Holder to exercise any right, power or remedy
upon any Event of Default shall exhaust or impair any such right, power or
remedy or shall be construed to waive any such Event of Default or to constitute
acquiescence therein. Every right, power and remedy given to Beneficiary whether
contained herein or in the Mortgage Notes Indenture or otherwise available to
Beneficiary may be exercised from time to time and as often as may be deemed
expedient by Beneficiary.
4.14 No Waiver of One Default to Affect Another. No waiver of any
Event of Default hereunder shall extend to or affect any subsequent or any other
Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Beneficiary or a majority of the Mortgage Note Holder(s),
to the extent applicable under the Mortgage Notes Indenture, (a) grants
forbearance or an extension of time for the payment of any sums secured hereby;
(b) takes other or additional security for the payment thereof; (c) waives or
does not exercise any right granted in the Notes, the Mortgage Notes Indenture,
this Deed of Trust, the Funding Agents' Disbursement and Administration
Agreement, any other Mortgage Notes Indenture Security Document or any other
Security Document; (d) releases any part of the Trust Estate from the lien or
security interest of this Deed of Trust or any other instrument securing the
Notes; (e) consents to the filing of any map, plat or replat of the Land (to the
extent such consent is required); (f) consents to the granting of any easement
on the Land (to the extent such consent is required); or (g) makes or consents
to any agreement changing the terms of this Deed of Trust or any Mortgage Notes
Indenture Security Document subordinating the lien or any charge hereof, no such
act or omission shall release, discharge, modify, change or affect the original
liability of Trustor under the Notes, this Deed of Trust, any other Mortgage
Notes Indenture Security Document or any other Security Document or otherwise,
or any subsequent purchaser of the Trust Estate or any part thereof or any
maker, co-signer, surety or guarantor. No such act or omission shall preclude
Beneficiary from exercising any right, power or privilege herein granted or
intended to be granted in case of any Event of Default then existing or of any
subsequent Event of Default, nor, except as otherwise expressly provided in an
instrument or instruments executed by Beneficiary, shall the lien or security
interest of this Deed of Trust be altered thereby, except to the extent
expressly provided in any releases, maps, easements or subordinations described
in clause (d), (e), (f) or (g) above of this Section 4.14. In the event of the
sale or transfer by operation of law or otherwise of all or any part of the
Trust Estate, Beneficiary, without notice to any person, firm or corporation, is
hereby authorized and empowered to deal with any such vendee or transferee with
reference to the Trust Estate or the indebtedness secured hereby, or with
reference to any of the terms or conditions hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any of the liabilities or undertakings hereunder, or
waiving its right to declare such sale or transfer an Event of Default as
provided herein. Notwithstanding anything to the contrary contained in this Deed
of Trust,
27
any Mortgage Notes Indenture Security Document or any other Security Document,
(i) in the case of any non-monetary Event of Default, Beneficiary may continue
to accept payments due hereunder without thereby waiving the existence of such
or any other Event of Default and (ii) in the case of any monetary Event of
Default, Beneficiary may accept partial payments of any sums due hereunder
without thereby waiving the existence of such Event of Default if the partial
payment is not sufficient to completely cure such Event of Default.
4.15 Discontinuance of Proceedings; Position of Parties Restored.
If Beneficiary shall have proceeded to enforce any right or remedy under this
Deed of Trust by foreclosure, entry of judgement or otherwise and such
proceedings shall have been discontinued or abandoned for any reason, or such
proceedings shall have resulted in a final determination adverse to Beneficiary,
then and in every such case Trustor and Beneficiary shall be restored to their
former positions and rights hereunder, and all rights, powers and remedies of
Beneficiary shall continue as if no such proceedings had occurred or had been
taken.
4.16 Remedies Cumulative. No right, power or remedy, including
without limitation remedies with respect to any security for the Notes,
conferred upon or reserved to Beneficiary by this Deed of Trust, any other
Mortgage Notes Indenture Security Document or any other Security Document is
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder, under any Mortgage Notes
Indenture Security Document or any other Security Document, now or hereafter
existing at law, in equity or by statute, and Beneficiary shall be entitled to
resort to such rights, powers, remedies or security as Beneficiary shall in its
sole and absolute discretion deem advisable.
4.17 Interest After Event of Default. If an Event of Default
shall have occurred and is continuing, all sums outstanding and unpaid under the
Notes and this Deed of Trust shall, at Beneficiary's option, bear interest at
the rate applicable to overdue principal set forth in Section 4.01 of the
Mortgage Notes Indenture until such Event of Default has been cured. Trustor's
obligation to pay such interest shall be secured by this Deed of Trust.
4.18 Foreclosure; Expenses of Litigation. If Trustee forecloses,
reasonable attorneys' fees for services in the supervision of said foreclosure
proceeding shall be allowed to the Trustee and Beneficiary as part of the
foreclosure costs. In the event of foreclosure of the lien hereof, there shall
be allowed and included as additional indebtedness all reasonable expenditures
and expenses which may be paid or incurred by or on behalf of Beneficiary for
attorneys' fees, appraiser's fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be estimated as
to items to be expended after foreclosure sale or entry of the decree) of
procuring all such abstracts of title, title searches and examinations, title
insurance policies and guarantees, and similar data and assurances with respect
to title as Beneficiary may deem reasonably advisable either to prosecute such
suit or to evidence to a bidder at any sale which may be had pursuant to such
decree the true condition of the title to or the value of the Trust Estate or
any portion thereof. All expenditures and expenses of the nature in this section
mentioned, and such expenses and fees as may be incurred in the protection of
the Trust Estate and the maintenance of the lien and security interest of this
Deed of Trust, including the fees of any attorney employed by Beneficiary in any
litigation or proceeding affecting this Deed of Trust or any Mortgage Notes
Indenture Security Document, the Trust Estate or any portion thereof, including,
without limitation, civil, probate, appellate and bankruptcy proceedings, or in
preparation for the commencement or defense of any proceeding or threatened suit
or proceeding, shall be immediately due and payable by Trustor, with interest
thereon at the rate applicable to overdue principal set forth in Section 4.01 of
the Mortgage Notes Indenture, and shall be secured by this Deed of Trust.
Trustee
28
waives its right to any statutory fee in connection with any judicial or
nonjudicial foreclosure of the lien hereof and agrees to accept a reasonable fee
for such services.
4.19 Deficiency Judgments. If after foreclosure of this Deed of
Trust or Trustee's sale hereunder, there shall remain any deficiency with
respect to any amounts payable under the Notes or hereunder or any amounts
secured hereby, and Beneficiary shall institute any proceedings to recover such
deficiency or deficiencies, all such amounts shall continue to bear interest at
the rate applicable to overdue principal set forth in Section 4.01 of the
Mortgage Notes Indenture. Trustor waives any defense to Beneficiary's recovery
against Trustor of any deficiency after any foreclosure sale of the Trust
Estate. Trustor expressly waives any defense or benefits that may be derived
from any statute granting Trustor any defense to any such recovery by
Beneficiary. In addition, Beneficiary and Trustee shall be entitled to recovery
of all of their reasonable costs and expenditures (including without limitation
any court imposed costs) in connection with such proceedings, including their
reasonable attorneys' fees, appraisal fees and the other costs, fees and
expenditures referred to in Section 4.18 above. This provision shall survive any
foreclosure or sale of the Trust Estate, any portion thereof and/or the
extinguishment of the lien hereof.
4.20 Waiver of Jury Trial. Beneficiary and Trustor each waive any
right to have a jury participate in resolving any dispute whether sounding in
contract, tort or otherwise arising out of, connected with, related to or
incidental to the relationship established between them in connection with the
Notes, this Deed of Trust, any other Mortgage Notes Indenture Security Document
or any other Security Document. Any such disputes shall be resolved in a bench
trial without a jury.
4.21 Exculpation of Beneficiary. The acceptance by Beneficiary of
the assignment contained herein with all of the rights, powers, privileges and
authority created hereby shall not, prior to entry upon and taking possession of
the Trust Estate by Beneficiary, be deemed or construed to make Beneficiary a
"mortgagee in possession"; nor thereafter or at any time or in any event
obligate Beneficiary to appear in or defend any action or proceeding relating to
the Space Leases, the Rents or the Trust Estate, or to take any action hereunder
or to expend any money or incur any expenses or perform or discharge any
obligation, duty or liability under any Space Lease or to assume any obligation
or responsibility for any security deposits or other deposits except to the
extent such deposits are actually received by Beneficiary, nor shall
Beneficiary, prior to such entry and taking, be liable in any way for any injury
or damage to person or property sustained by any Person in or about the Trust
Estate.
ARTICLE FIVE
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
------------------------------------
Notwithstanding anything to the contrary in this Deed of Trust,
Trustor and Beneficiary agree as follows.
5.1 Exercise of Remedies by Trustee. To the extent that this Deed
of Trust or applicable law, including all applicable Gaming Control Laws,
authorizes or empowers, or does not require approval for, Beneficiary to
exercise any remedies set forth in Article Four hereof or otherwise, or perform
any acts in connection therewith, Trustee (but not to the exclusion of
Beneficiary unless so required under the law of the State of Nevada) shall have
the power to exercise any or all such remedies, and to perform any acts provided
for in this Deed of Trust in connection therewith, all for the benefit of
Beneficiary and on Beneficiary's behalf in accordance with applicable law of the
State of Nevada. In connection therewith, Trustee: (a) shall not exercise, or
waive the exercise of, any Beneficiary's remedies
29
(other than any rights of Trustee to any indemnity or reimbursement), except at
Beneficiary's request, and (b) shall exercise, or waive the exercise of, any or
all of Beneficiary's remedies at Beneficiary's request, and in accordance with
Beneficiary's directions as to the manner of such exercise or waiver. Trustee
may, however, decline to follow Beneficiary's request or direction if Trustee
shall be advised by counsel that the action or proceeding, or manner thereof, so
directed may not lawfully be taken or waived.
5.2 Rights and Privileges of Trustee. To the extent that this
Deed of Trust requires Trustor to indemnify Beneficiary or reimburse Beneficiary
for any expenditures Beneficiary may incur, Trustee shall be entitled to the
same indemnity and the same rights to reimbursement of expenses as Beneficiary,
subject to such limitations and conditions as would apply in the case of
Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary's liability as to any matter, Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Trustor, pursuant to
this Deed of Trust, appoints Beneficiary as Trustor's attorney in fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Trustor's behalf without joinder or confirmation by the
other.
5.3 Resignation or Replacement of Trustee. Trustee may resign by
an instrument in writing addressed to Beneficiary, and Trustee may be removed at
any time with or without cause (i.e., in Beneficiary's sole and absolute
discretion) by an instrument in writing executed by Beneficiary. In case of the
death, resignation, removal or disqualification of Trustee or if for any reason
Beneficiary shall deem it desirable to appoint a substitute, successor or
replacement Trustee to act instead of Trustee originally named (or in place of
any substitute, successor or replacement Trustee), then Beneficiary shall have
the right and is hereby authorized and empowered to appoint a successor,
substitute or replacement Trustee, without any formality other than appointment
and designation in writing executed by Beneficiary, which instrument shall be
recorded if required by the law of the State of Nevada. The law of the State of
Nevada (including, without limitation, the Gaming Control Laws) shall govern the
qualifications of any Trustee. The authority conferred upon Trustee by this Deed
of Trust shall automatically extend to any and all other successor, substitute
and replacement Trustee(s) successively until the obligations secured hereunder
have been paid in full or the Trust Estate has been sold hereunder or released
in accordance with the provisions of the Mortgage Notes Indenture Security
Documents and each other Security Document to which the Beneficiary is a party
or which grants a security interest for the benefit of the Beneficiary.
Beneficiary's written appointment and designation of any Trustee shall be full
evidence of Beneficiary's right and authority to make the same and of all facts
therein recited. No confirmation, authorization, approval or other action by
Trustor shall be required in connection with any resignation or other
replacement of Trustee.
5.4 Authority of Beneficiary. If Beneficiary is a banking
corporation, state banking corporation or a national banking association and the
instrument of appointment of any successor or replacement Trustee is executed on
Beneficiary's behalf by an officer of such corporation, state banking
corporation or national banking association, then such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of Beneficiary.
5.5 Effect of Appointment of Successor Trustee. Upon the
appointment and designation of any successor, substitute or replacement Trustee,
and subject to compliance with applicable Gaming Control Laws and other
applicable laws, Trustee's entire estate and title in the Trust Estate shall
vest in the designated successor, substitute or replacement Trustee. Such
successor, substitute or replacement Trustee shall thereupon succeed to and
shall hold, possess and execute all the rights, powers, privileges, immunities
and duties herein conferred upon Trustee. All references herein to Trustee shall
30
be deemed to refer to Trustee (including any successor or substitute appointed
and designated as herein provided) from time to time acting hereunder.
5.6 Confirmation of Transfer and Succession. Upon the written
request of Beneficiary or of any successor, substitute or replacement Trustee,
any former Trustee ceasing to act shall execute and deliver an instrument
transferring to such successor, substitute or replacement Trustee all of the
right, title, estate and interest in the Trust Estate of Trustee so ceasing to
act, together with all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee, and shall duly assign, transfer and deliver all
properties and moneys held by said Trustee hereunder to said successor,
substitute or replacement Trustee.
5.7 Exculpation. Trustee shall not be liable for any error of
judgment or act done by Trustee in good faith, or otherwise be responsible or
accountable under any circumstances whatsoever, except for Trustee's gross
negligence, willful misconduct or knowing violation of law. Trustee shall have
the right to rely on any instrument, document or signature authorizing or
supporting any action taken or proposed to be taken by it hereunder, believed by
it in good faith to be genuine. All moneys received by Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from any other moneys
(except to the extent required by law). Trustee shall be under no liability for
interest on any moneys received by it hereunder.
5.8 Endorsement and Execution of Documents. Upon Beneficiary's
written request, Trustee shall, without liability or notice to Trustor, execute,
consent to, or join in any instrument or agreement in connection with or
necessary to effectuate the purposes of the Mortgage Notes Indenture Security
Documents and each other Security Document to which the Beneficiary is a party
or which grants a security interest for the benefit of the Beneficiary. Trustor
hereby irrevocably designates Trustee as its attorney in fact to execute,
acknowledge and deliver, on Trustor's behalf and in Trustor's name, all
instruments or agreements necessary to implement any provision(s) of this Deed
of Trust or to further perfect the lien created by this Deed of Trust on the
Trust Estate. This power of attorney shall be deemed to be coupled with an
interest and shall survive any disability of Trustor.
5.9 Multiple Trustees. If Beneficiary appoints multiple trustees,
then any Trustee, individually, may exercise all powers granted to Trustee under
this instrument, without the need for action by any other Trustee(s).
5.10 Terms of Trustee's Acceptance. Trustee accepts the trust
created by this Deed of Trust upon the following terms and conditions:
(a) Delegation. Trustee may exercise any of its powers through
appointment of attorney(s) in fact or agents.
(b) Counsel. Trustee may select and employ legal counsel
(including any law firm representing Beneficiary). Trustor shall reimburse all
reasonable legal fees and expenses that Trustee may thereby incur.
(c) Security. Trustee shall be under no obligation to take any
action upon any Event of Default unless furnished security or indemnity, in form
satisfactory to Trustee, against costs, expenses, and liabilities that Trustee
may incur.
(d) Costs and Expenses. Trustor shall reimburse Trustee, as
part of the Obligations secured hereunder, for all reasonable disbursements and
expenses (including reasonable legal
31
fees and expenses) incurred by reason of and as provided for in this Deed of
Trust, including any of the foregoing incurred in Trustee's administering and
executing the trust created by this Deed of Trust, in complying with all
applicable Gaming Control Laws and performing Trustee's duties and exercising
Trustee's powers under this Deed of Trust.
(e) Release. Upon payment and performance of the Obligations
secured hereunder, Beneficiary shall request that Trustee release this Deed of
Trust. Upon receipt of such request Trustee shall release this Deed of Trust to
Trustor. Trustor shall pay all costs of recordation, if any.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
------------------------
6.1 Heirs, Successors and Assigns Included in Parties. Whenever
one of the parties hereto is named or referred to herein, the heirs, successors
and assigns of such party shall be included, and subject to the limitations set
forth in Section 1.9, all covenants and agreements contained in this Deed of
Trust, by or on behalf of Trustor or Beneficiary shall bind and inure to the
benefit of its heirs, successors and assigns, whether so expressed or not.
6.2 Addresses for Notices, Etc. Any notice, report, demand or
other instrument authorized or required to be given or furnished under this Deed
of Trust to Trustor or Beneficiary shall be deemed given or furnished (i) when
addressed to the party intended to receive the same, at the address of such
party set forth below, and delivered by hand at such address or (ii) three (3)
days after the same is deposited in the United States mail as first class
certified mail, return receipt requested, postage paid, whether or not the same
is actually received by such party:
Beneficiary: First Trust National Association
000 Xxxx 0xx Xxxxxx
Xx.Xxxx, XX 00000
Attn: Corporate Trust Department
Trustor: Venetian Casino Resort, LLC
0000 Xxx Xxxxx Xxxx. Xxxxx, Xxxx 0X
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
With a copy to: Las Vegas Sands, Inc.
0000 Xxx Xxxxx Xxxxxxxxx, Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Trustee: Lawyers Title of Nevada, Inc.
0000 Xxxx Xxxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
32
6.3 Change of Notice Address. Any Person may change the address to which
any such notice, report, demand or other instrument is to be delivered or mailed
to that person, by furnishing written notice of such change to the other
parties, but no such notice of change shall be effective unless and until
received by such other parties.
6.4 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Deed of Trust are for convenience of reference only, are
not to be considered a part hereof, and shall not limit or expand or otherwise
affect any of the terms hereof.
6.5 Invalid Provisions to Affect No Others. In the event that any of the
covenants, agreements, terms or provisions contained herein or in the Notes, the
Mortgage Notes Indenture, any other Mortgage Notes Indenture Security Document
or any other Security Document shall be invalid, illegal or unenforceable in any
respect, the validity of the lien hereof and the remaining covenants,
agreements, terms or provisions contained herein or in the Notes, the Mortgage
Notes Indenture, any other Mortgage Notes Indenture Security Document or in any
other Security Document shall be in no way affected, prejudiced or disturbed
thereby. To the extent permitted by law, Trustor waives any provision of law
which renders any provision hereof prohibited or unenforceable in any respect.
6.6 Changes and Priority Over Intervening Liens. Neither this Deed of
Trust nor any term hereof may be changed, waived, discharged or terminated
orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. Any agreement hereafter made by Trustor and
Beneficiary relating to this Deed of Trust shall be superior to the rights of
the holder of any intervening lien or encumbrance.
6.7 Estoppel Certificates. Within ten (10) Business Days after
Beneficiary's written request, Trustor shall from time to time execute a
certificate, in recordable form (an "Estoppel Certificate"), stating, except to
the extent it would be inaccurate to so state: (a) the current amount of the
Obligations secured hereunder and all elements thereof, including principal,
interest, and all other elements; (b) that Trustor has no defense, offset,
claim, counterclaim, right of recoupment, deduction, or reduction against any of
the Obligations secured hereunder; (c) that none of the Mortgage Notes Indenture
Security Documents and each other Security Document to which the Beneficiary is
a party or which grants a security interest for the benefit of the Beneficiary
have been amended, whether orally or in writing; (d) that Trustor has no claims
against Beneficiary of any kind; (e) that any Power of Attorney granted to
Beneficiary is in full force and effect; and (f) such other matters relating to
this Deed of Trust, any Mortgage Notes Indenture Security Document and each
other Security Document to which the Beneficiary is a party or which grants a
security interest for the benefit of the Beneficiary and the relationship of
Trustor and Beneficiary as Beneficiary shall request. In addition, the Estoppel
Certificate shall set forth the reasons why it would be inaccurate to make any
of the foregoing assurances ("a" through "f").
6.8 Waiver of Setoff and Counterclaim. All amounts due under this Deed of
Trust, the Notes, the other Mortgage Notes Indenture Security Documents and each
other Security Document to which the Beneficiary is a party or which grants a
security interest for the benefit of the Beneficiary shall be payable without
setoff, counterclaim or any deduction whatsoever. Trustor hereby waives the
right to assert a counterclaim (other than a compulsory counterclaim) in any
action or proceeding brought against it by Beneficiary and/or any Lender under
the Mortgage Notes Indenture, or arising out of or in any way connected with
this Deed of Trust, the other Mortgage Notes Indenture Security Documents, each
other
33
Security Document to which the Beneficiary is a party or which grants a security
interest for the benefit of the Beneficiary or the Obligations.
6.9 Governing Law. The Mortgage Notes Indenture and the Notes provide that
they are governed by, and construed and enforced in accordance with, the laws of
the State of New York. This Deed of Trust shall also be construed under and
governed by the laws of the State of New York; provided, however, that (i) the
terms and provisions of this Deed of Trust pertaining to the priority,
perfection, enforcement or realization by Beneficiary of its respective rights
and remedies under this Deed of Trust with respect to the Trust Estate shall be
governed and construed and enforced in accordance with the internal laws of the
State of Nevada (the "State") without giving effect to the conflicts-of-law
rules and principles of the State; (ii) Trustor agrees that to the extent
deficiency judgments are available under the laws of the State after a
foreclosure (judicial or nonjudicial) of the Trust Estate, or any portion
thereof, or any other realization thereon by Beneficiary or any Lender under the
Mortgage Notes Indenture, Beneficiary or such Lender, as the case may be, shall
have the right to seek such a deficiency judgment against Trustor in the State;
and (iii) Trustor agrees that if Beneficiary or any Lender under the Mortgage
Notes Indenture obtains a deficiency judgment in another state against Trustor,
then Beneficiary or such Lender, as the case may be, shall have the right to
enforce such judgment in the State to the extent permitted under the laws of the
State, as well as in other states. Nothing contained in this Section 6.9 shall
be deemed to expand the limitations set forth in Section 12.08 of the Mortgage
Notes Indenture.
6.10 Required Notices. Trustor shall notify Beneficiary promptly of the
occurrence of any of the following and shall immediately provide Beneficiary a
copy of the notice or documents referred to: (i) receipt of notice from any
Governmental Authority relating to all or any material part of the Trust Estate
if such notice relates to a default or act, omission or circumstance which would
result in a default after notice or passage of time or both; (ii) receipt of any
notice from any tenant leasing all or any material portion of the Trust Estate
if such notice relates to a default or act, omission or circumstance which would
result in a default after notice or passage of time or both; (iii) receipt of
notice from the holder of any Permitted Lien relating to a default or act,
omission or circumstance which would result in a default after notice or passage
of time or both; (iv) the commencement of any proceedings or the entry of any
judgment, decree or order materially affecting all or any portion of the Trust
Estate or which involve the potential liability of Trustor or its Affiliates in
an amount in excess of $25,000,000 (other than for personal injury actions and
related property damage suits which are covered by such insurance); or (v)
commencement of any judicial or administrative proceedings or the entry of any
judgment, decree or order by or against or otherwise affecting Trustor or any
Affiliate of Trustor, a material portion of the Trust Estate, or a material
portion of the Personal Property, or any other action by any creditor or lessor
thereof as a result of any default under the terms of any lease.
6.11 Reconveyance. Upon written request of Trustor when the Obligations
secured hereby have been satisfied in full, Beneficiary shall cause Trustee to
reconvey, without warranty, the property then held hereunder. The recitals in
such reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
6.12 Attorneys' Fees. Without limiting any other provision contained
herein, Trustor agrees to pay all costs of Beneficiary or Trustee incurred in
connection with the enforcement of this Deed of Trust or of the Notes, including
without limitation all reasonable attorneys' fees whether or not suit is
commenced, and including, without limitation, fees incurred in connection with
any probate, appellate, bankruptcy, deficiency or any other litigation
proceedings, all of which sums shall be secured hereby.
34
6.13 Late Charges. By accepting payment of any sum secured hereby after
its due date, Beneficiary does not waive its right to collect any late charge
thereon or interest thereon at the interest rate on the Notes, if so provided,
not then paid or its right either to require prompt payment when due of all
other sums so secured or to declare default for failure to pay any amounts not
so paid.
6.14 Cost of Accounting. Trustor shall pay to Beneficiary, for and on
account of the preparation and rendition of any accounting, which Trustor may be
entitled to require under any law or statute now or hereafter providing
therefor, the reasonable costs thereof.
6.15 Right of Entry. Subject to compliance with applicable Gaming Control
Laws, Beneficiary may at any reasonable time or times and on reasonable prior
written notice to Trustor make or cause to be made entry upon and inspections of
the Trust Estate or any part thereof in person or by agent.
6.16 Corrections. Trustor shall, upon request of Beneficiary or Trustee,
promptly correct any defect, error or omission which may be discovered in the
contents of this Deed of Trust (including, but not limited to, in the exhibits
and schedules attached hereto) or in the execution or acknowledgement hereof,
and shall execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by Trustee to
carry out more effectively the purposes of this Deed of Trust, to subject to the
lien and security interest hereby created any of Trustor's properties, rights or
interest covered or intended to be covered hereby, and to perfect and maintain
such lien and security interest.
6.17 Statute of Limitations. To the fullest extent allowed by the law, the
right to plead, use or assert any statute of limitations as a plea or defense or
bar of any kind, or for any purpose, to any debt, demand or obligation secured
or to be secured hereby, or to any complaint or other pleading or proceeding
filed, instituted or maintained for the purpose of enforcing this Deed of Trust
or any rights hereunder, is hereby waived by Trustor.
6.18 Subrogation. Should the proceeds of any loan or advance made by
Beneficiary or any Lender under the Mortgage Notes Indenture to Trustor,
repayment of which is hereby secured, or any part thereof, or any amount paid
out or advanced by Beneficiary or any Lender under the Mortgage Notes Indenture,
be used directly or indirectly to pay off, discharge, or satisfy, in whole or in
part, any prior or superior lien or encumbrance upon the Trust Estate, or any
part thereof, then, as additional security hereunder, Trustee, on behalf of
Beneficiary, shall be subrogated to any and all rights, superior titles, liens,
and equities owned or claimed by any owner or holder of said outstanding liens,
charges, and indebtedness, however remote, regardless of whether said liens,
charges, and indebtedness are acquired by assignment or have been released of
record by the holder thereof upon payment.
6.19 Joint and Several Liability. All obligations of Trustor hereunder, if
more than one, are joint and several. Recourse for deficiency after sale
hereunder may be had against the property of Trustor, without, however, creating
a present or other lien or charge thereon.
6.20 Homestead. Trustor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Trust Estate as against the collection of the
Obligations, or any part hereof.
6.21 Context. In this Deed of Trust, whenever the context so requires, the
neuter includes the masculine and feminine, and the singular including the
plural, and vice versa.
35
6.22 Time. Time is of the essence of each and every term, covenant and
condition hereof. Unless otherwise specified herein, any reference to "days" in
this Deed of Trust shall be deemed to mean "calendar days."
6.23 Interpretation. As used in this Deed of Trust unless the context
clearly requires otherwise: The terms "herein" or "hereunder" and similar terms
without reference to a particular section shall refer to the entire Deed of
Trust and not just to the section in which such terms appear; the term "lien"
shall also mean a security interest, and the term "security interest" shall also
mean a lien.
6.24 Effect of NRS ss. 107.030. To the extent not inconsistent herewith,
the provisions of NRS ss. 107.030 are included herein by reference.
6.25 Amendments. This Deed of Trust cannot be waived, changed, discharged
or terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, discharge or termination is
sought and only as permitted by the provisions of the Mortgage Notes Indenture.
6.26 No Conflicts. In the event that any of the provisions contained here
conflict with that certain Security Agreement dated as of the date hereof, by
and between Trustor, and Beneficiary, the provisions contained in the Security
Agreement shall prevail.
ARTICLE SEVEN
POWER OF ATTORNEY
7.1 Grant of Power. Subject to compliance with applicable Gaming Control
Laws, Trustor irrevocably appoints Beneficiary and any successor thereto as its
attorney-in-fact, with full power and authority, including the power of
substitution, exercisable only during the continuance of an Event of Default to
act for Trustor in its name, place and stead as hereinafter provided:
7.1.1 Possession and Completion. To take possession of the Land and
the Project, remove all employees, contractors and agents of Trustor therefrom,
complete or attempt to complete the work of construction, and market, sell or
lease the Land and the Project.
7.1.2 Plans. To make such additions, changes and corrections in the
current Plans and Specifications as may be necessary or desirable, in
Beneficiary's reasonable discretion, or as it deems proper to complete the
Project.
7.1.3 Employment of Others. To employ such contractors,
subcontractors, suppliers, architects, inspectors, consultants, property
managers and other agents as Beneficiary, in its discretion, deems proper for
the completion of the Project, for the protection or clearance of title to the
Land or Personal Property, or for the protection of Beneficiary's interests with
respect thereto.
7.1.4 Security Guards. To employ watchmen to protect the Land and
the Project from injury.
7.1.5 Compromise Claims. To pay, settle or compromise all bills and
claims then existing or thereafter arising against Trustor, which Beneficiary,
in its discretion, deems proper for the protection or clearance of title to the
Land or Personal Property, or for the protection of Beneficiary's interests with
respect thereto.
36
7.1.6 Legal Proceedings. To prosecute and defend all actions and
proceedings in connection with the Land or the Project.
7.1.7 Other Acts. To execute, acknowledge and deliver all other
instruments and documents in the name of Trustor that are necessary or
desirable, to exercise Trustor's rights under all contracts concerning the Land
or the Project, including, without limitation, under any Space Leases, and to do
all other acts with respect to the Land or the Project that Trustor might do on
its own behalf, as Beneficiary, in its reasonable discretion, deems proper.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
37
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust, Assignment of
Leases and Rents and Security Agreement as of the day and year first above
written.
TRUSTOR:
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company,
BY: LAS VEGAS SANDS, INC.,
a Nevada corporation,
its managing member
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: President
LAS VEGAS SANDS, INC.
a Nevada corporation
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: President
00
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
This instrument was acknowledged before me on November 14, 1997 by
Xxxxxxx X. Xxxxxxx, the President of Las Vegas Sands, Inc., the managing
member of Venetian Casino Resort, LLC.
/s/ Xxxxxxx X. Xxxxx
--------------------
NOTARY PUBLIC
[Seal of Notary Public]
Xxxxxxx X. Xxxxx
Notary Public, State of New York
No. 01MO5086188
Qualified in New York County
Commission Expires Oct. 6, 0000
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
This instrument was acknowledged before me on November 14, 1997 by
Xxxxxxx X. Xxxxxxx, the President of Las Vegas Sands, Inc..
/s/ Xxxxxxx X. Xxxxx
--------------------
NOTARY PUBLIC
[Seal of Notary Public]
Xxxxxxx X. Xxxxx
Notary Public, State of New York
No. 01MO5086188
Qualified in New York County
Commission Expires Oct. 6, 1999
1
TABLE OF CONTENTS
ARTICLE ONE
COVENANTS OF TRUSTOR.......................... 10
1.1 Performance of Financing Agreements................................. 10
1.2 General Representations, Covenants and Warranties................... 10
1.3 Compliance with Legal Requirements.................................. 11
1.4 Taxes............................................................... 11
1.5 Insurance........................................................... 12
1.6 Condemnation........................................................ 12
1.7 Care of Trust Estate................................................ 13
1.8 Leases.............................................................. 13
1.9 Further Encumbrance................................................. 14
1.10 Partial Releases of Trust Estate................................... 15
1.11 Further Assurances................................................. 16
1.12 Security Agreement and Financing Statements........................ 16
1.13 Assignment of Leases and Rents..................................... 18
1.14 Expenses........................................................... 19
1.15 Beneficiary's Cure of Trustor's Default............................ 19
1.16 Use of Land........................................................ 20
1.17 Compliance with Permitted Lien Agreements.......................... 20
1.18 Defense of Actions................................................. 20
1.19 Affiliates......................................................... 20
1.20 Title Insurance.................................................... 21
ARTICLE TWO
CORPORATE LOAN PROVISIONS....................... 21
2.1 Interaction with Mortgage Notes Indenture........................... 21
2.2 Other Collateral.................................................... 21
2.3 Subordination to Bank Fee Deed of Trust............................. 21
2.4 Subordination to Cooperation Agreement, Mall Lease, the Billboard
Master Lease and HVAC Ground Lease.................................. 22
ARTICLE THREE
DEFAULTS................................ 22
3.1 Event of Default.................................................... 22
ARTICLE FOUR
REMEDIES................................ 22
4.1 Acceleration of Maturity............................................ 22
4.2 Protective Advances................................................. 22
4.3 Institution of Equity Proceedings................................... 22
4.4 Beneficiary's Power of Enforcement.................................. 23
4.5 Beneficiary's Right to Enter and Take Possession, Operate
and Apply Income ................................................... 24
4.6 Leases.............................................................. 25
4.7 Purchase by Beneficiary............................................. 25
i
4.8 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws .................................................... 25
4.9 Receiver............................................................ 26
4.10 Suits to Protect the Trust Estate.................................. 26
4.11 Proofs of Claim.................................................... 26
4.12 Trustor to Pay the Notes on Any Default in Payment; Application
of Monies by Beneficiary........................................... 26
4.13 Delay or Omission; No Waiver....................................... 27
4.14 No Waiver of One Default to Affect Another......................... 27
4.15 Discontinuance of Proceedings; Position of Parties Restored........ 28
4.16 Remedies Cumulative................................................ 28
4.17 Interest After Event of Default.................................... 28
4.18 Foreclosure; Expenses of Litigation................................ 28
4.19 Deficiency Judgments............................................... 29
4.20 Waiver of Jury Trial............................................... 29
4.21 Exculpation of Beneficiary......................................... 29
ARTICLE FIVE
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE.................. 29
5.1 Exercise of Remedies by Trustee..................................... 29
5.2 Rights and Privileges of Trustee.................................... 30
5.3 Resignation or Replacement of Trustee............................... 30
5.4 Authority of Beneficiary............................................ 30
5.5 Effect of Appointment of Successor Trustee.......................... 30
5.6 Confirmation of Transfer and Succession............................. 31
5.7 .................................................................... 31
Exculpation.............................................................. 31
5.8 Endorsement and Execution of Documents.............................. 31
5.9 Multiple Trustees................................................... 31
5.10 Terms of Trustee's Acceptance...................................... 31
ARTICLE SIX
MISCELLANEOUS PROVISIONS........................ 32
6.1 Heirs, Successors and Assigns Included in Parties................... 32
6.2 Addresses for Notices, Etc.......................................... 32
6.3 Change of Notice Address............................................ 33
6.4 Headings............................................................ 33
6.5 Invalid Provisions to Affect No Others.............................. 33
6.6 Changes and Priority Over Intervening Liens......................... 33
6.7 Estoppel Certificates............................................... 33
6.8 Waiver of Setoff and Counterclaim................................... 33
6.9 Governing Law....................................................... 34
6.10 Required Notices................................................... 34
6.11 Reconveyance....................................................... 34
6.12 Attorneys' Fees.................................................... 34
6.13 Late Charges....................................................... 35
6.14 Cost of Accounting................................................. 35
6.15 Right of Entry..................................................... 35
6.16 Corrections........................................................ 35
6.17 Statute of Limitations............................................. 35
ii
6.18 Subrogation........................................................ 35
6.19 Joint and Several Liability........................................ 35
6.20 Homestead.......................................................... 35
6.21 Context............................................................ 35
6.22 Time............................................................... 36
6.23 Interpretation..................................................... 36
6.24 Effect of NRS ss. 107.030.......................................... 36
6.25 Amendments......................................................... 36
6.26 No Conflicts....................................................... 36
ARTICLE SEVEN
POWER OF ATTORNEY........................... 36
7.1 Grant of Power...................................................... 36
7.1.1 Possession and Completion....................................... 36
7.1.2 Plans........................................................... 36
7.1.3 Employment of Others............................................ 36
7.1.4 Security Guards................................................. 36
7.1.5 Compromise Claims............................................... 36
7.1.6 Legal Proceedings............................................... 37
7.1.7 Other Acts...................................................... 37
SCHEDULE A DESCRIPTION OF THE LAND
SCHEDULE C CONTEMPLATED CONDEMNATION
SCHEDULE D LIST OF TRADE AND FICTITIOUS NAMES
