Recording Requested by and after Recording Return To: Sidley Austin LLP
Recording
Requested by and
after
Recording Return To:
Sidley
Austin LLP
000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxx
| (Space above line for Recorder’s use only) | |
LEASEHOLD
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY
AGREEMENT AND FIXTURE FILING
GRANTOR(S):
XX XXXXXXXXXX XX, LLC, a Washington limited liability company
¨ Additional
names on page _____ of document
GRANTEE(S): FORTRESS
CREDIT CORP., a Delaware corporation, as beneficiary
LAWYERS TITLE INSURANCE CORPORATION, a
Nebraska
corporation, as trustee
¨ Additional
names on page _____ of document
Abbreviated
Legal Description (lot, block and plat name, or
section-township-range):
Parcel B
of BLA # SHLA 2003 01 Rec. No. 20030226900036
¨ Additional
legal description on page _____ of document
Assessor’s
Property Tax Parcel Account Number(s) at the time of
recording:
072604-9104-05
Reference
Number(s) of Documents Assigned or Released:
¨ Additional
reference numbers on page _____ of document
LEASEHOLD
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING
THIS
LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (as amended, modified or restated, the “Deed of
Trust”) is made as of July
23, 2010, and is given by XX XXXXXXXXXX XX, LLC, a
Washington limited liability company (herein “Trustor”)
whose address is 00 Xxxxx Xxxxxx Xxxx, Xxxxx 000X, Xxxxxxx, Xxxxx 00000,
Attention: Xxxxxx X. Xxxxxxx, Manager, index as “grantor”, to LAWYERS TITLE INSURANCE
CORPORATION, having an address at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000 (“Trustee”),
index as “grantee”, for the benefit of FORTRESS CREDIT CORP., a
Delaware corporation, having an address at 1345 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns, “Beneficiary”)
for the Lenders (as defined below) in connection with that certain Credit
Agreement dated of even date herewith executed by XX XXXXXXXXXX XX HOLDINGS,
LLC, a Delaware limited liability company (“Borrower”), the owner of all
outstanding equity in Trustor, in favor of the financial institutions from time
to time party thereto as lenders (the “Lenders”),
and Beneficiary (as amended, restated, supplemented or otherwise modified from
time to time, the “Credit
Agreement”). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed to such terms in the
Credit Agreement. The Loans are being made pursuant to the Credit
Agreement and are evidenced and/or secured by the Loan Documents, which include,
but are not limited to, the Credit Agreement and this Deed of
Trust.
WHEREAS,
Trustor and Nevada Gold & Casinos, Inc., a Nevada corporation, have
delivered to Beneficiary that certain Guaranty, dated on or about the date
hereof (the “Guaranty”),
guaranteeing separately, and not jointly or jointly and severally, the prompt,
full, punctual, unconditional and irrevocable payment in full when due (whether
at stated maturity, upon acceleration or otherwise), of the Obligations,
including, without limitation (i) the aggregate principal amount outstanding of,
and interest accrued and unpaid on (including at the default rate, if
applicable), and late charges, repayment fees and make-whole payments in respect
of, the Loans made to Borrower pursuant to the Credit Agreement, and (ii) all
other amounts payable by Borrower or any other Credit Party under the Credit
Agreement and the other Loan Documents (all of the foregoing being
referred to herein collectively as the “Guaranteed
Obligations”).
WHEREAS,
Lenders and Beneficiary have required as a condition to making the Loans to
Borrower that Trustor execute this Deed of Trust; and
WHEREAS,
the making of the Loans to Borrower is of substantial benefit to
Trustor.
NOW,
THEREFORE, TRUSTOR, in consideration of the foregoing, irrevocably warrants,
grants, conveys, and assigns (a) to Trustee, in trust, for the benefit of
Beneficiary with power of sale all that certain property located in the County
of King, State of Washington, more particularly described on Exhibit A attached
hereto (the “Land”)
and incorporated herein by reference for all purposes, and in the following
granting clauses to the extent the same constitutes real estate, including all
right, title and interest of Trustor in, to, under or derived from or related to
(i) the Casino Lease (as defined in Section 36 hereof) affecting the Land; and
(ii) any fee estate relating to the Land which is hereafter acquired by the
Trustor pursuant to any rights to purchase the Land under the Casino Lease,
without the necessity of any further, filing, writing, instrument, or amendment
to this Deed of Trust and (b) to Beneficiary a security interest in all of
Trustor’s right, title and interest in, to and under the following granting
clauses to the extent the same does not constitute real estate:
TOGETHER
with all of Trustor’s right, title and interest (now existing or hereafter
acquired) in, to and under any and all buildings, improvements and tenements now
or hereafter erected on the property, and all heretofore or hereafter vacated
alleys, streets and other public properties abutting the property, and all
easements, rights, appurtenances, rents (subject however to the assignment of
rents to Beneficiary herein), royalties, mineral, oil and gas rights and
profits, water, water rights, and water stock appurtenant to the property, and
all of Trustor’s right, title and interest in and to all fixtures, machinery,
equipment, generators, engines, boilers, incinerators, building materials,
appliances and goods of every nature whatsoever now or hereafter located in, or
on, or used, or intended to be used in connection with the property, including,
but not limited to, those for the purposes of supplying or distributing heating,
cooling, electricity, gas, water, air and light; and all elevators, and related
machinery and equipment, fire prevention and extinguishing apparatus, security
and access control apparatus, plumbing, bath tubs, water heaters, water closets,
sinks, ranges, stoves, pots, pans, cutlery, and kitchen utensils, televisions,
microwave ovens, silverware, refrigerators, dishwashers, disposals, and any
other kitchen equipment, washers, dryers, awnings, storm windows, storm doors,
screens, blinds, shades, curtains and curtain rods, mirrors, cabinets, paneling,
rugs, attached floor coverings, furniture, tablecloths, napkins, centerpieces,
pictures, antennas, computer and internet hardware and software, printers, video
display systems and devices, audio systems and devices, telephones and other and
communication systems and devices, trees and plants, lawnmowers, office
machinery, furniture, materials handling equipment, tools, attachments,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, and other landscape maintenance equipment, and inventory for sale,
real property tax refunds, trade names, licenses, permits, Trustor’s rights to
insurance proceeds, unearned insurance premiums, condemnation awards and choses
in action; all of which, including replacements and additions thereto shall be
deemed to be and remain a part of the real property covered by this Deed of
Trust; and all of the foregoing, together with said real property are herein
referred to as the “Property”;
TOGETHER
with all of Trustor’s right, title and interest (now existing or hereafter
acquired) in, to and under any and all leases now or hereinafter in existence
(as amended or supplemented from time to time) and covering space in or
applicable to the Property (hereinafter referred to collectively as the “Leases”
and singularly as a “Lease”),
together with all rents, earnings, income, deposits, proceeds, profits,
receivables (including, without limitation, credit card receivables), benefits
and advantages arising from the Property, and all other sums due or to become
due under and pursuant to any of the foregoing (including, without limitation,
any warrants, stock options or other rights granted to Trustor or any of its
Affiliates in connection with any of the foregoing), and together with any and
all guarantees of or under any of said Leases, and (subject to the assignment of
rents to Beneficiary herein) together with all rights, powers, privileges,
options and other benefits of Trustor under any Leases, including, without
limitation, the immediate and continuing right to receive and collect all rents,
income, revenues, issues, profits, condemnation awards, insurance proceeds,
moneys and security payable or receivable under any Leases or pursuant to any of
the provisions thereof, whether as rent, purchase money or otherwise, and to
perform all other necessary or appropriate acts with respect to such Lease as
agent and attorney-in-fact for Trustor, and the right to make all waivers and
agreements, to give and receive all notices, consents and releases, to take such
action upon the happening of a default under any Lease, including the
commencement, conduct and consummation of proceedings at law or in equity as
shall be permitted under any provision of any Lease or by any law, and to do any
and all other things whatsoever which Trustor is or may become entitled to do
under any such Lease, together with all accounts receivable, contract rights,
franchises, interests, estates or other claims, both at law and in equity,
relating to the Property, to the extent not included in rent earnings and income
under any Lease (all rents, earnings, accounts receivable, contract rights,
franchises, interests, estates, claims, income, deposits, proceeds, profits,
issues, condemnation awards, insurance proceeds, moneys and security payable or
receivable (including credit card receivables), benefits and advantages from the
Leases or otherwise related to the Property or owed to Trustor, collectively,
the “Revenues”);
TOGETHER
with all of Trustor’s right, title and interest (now existing or hereafter
acquired) in, to and under any and all reserve, deposit or escrow accounts made
pursuant to any Loan Document, together with all income, profits, benefits and
advantages arising therefrom, together with all rights, powers, privileges,
options and other benefits of Trustor under the Accounts, and together with the
right to do any and all other things whatsoever which Trustor is or may become
entitled to do under the Accounts;
TOGETHER
with all of Trustor’s right, title and interest (now existing or hereafter
acquired) in, to and under all agreements, contracts, certificates, guaranties,
warranties, options, instruments, franchises, permits, licenses, plans,
specifications and other documents and interests of any type, now or hereafter
entered into by or on behalf of, or granted to, Trustor, and all rights therein
and thereto, pertaining to the use, occupancy, construction, management or
operation of the Property and any part thereof and any improvements or
respecting any business or activity conducted on the Property, including,
without limitation, telecommunication services, internet products or services,
and internet access services, as well as related and complimentary services and
any substitutes for, and items that are a technological evolution of, any of the
foregoing services, and any part thereof and all right, title and interest of
Trustor therein, including the right to receive and collect any sums payable to
Trustor thereunder and all deposits or other security or advance payments made
by Trustor with respect to any of the services related to the Property or the
operation thereof;
TOGETHER
with all of Trustor’s right, title and interest (now existing or hereafter
acquired) in, to and under any and all tradenames, trademarks, servicemarks,
logos, phone numbers, internet, e-mail and website addresses, copyrights,
goodwill, books and records and all other general intangibles relating to or
used in connection with the operation of the Property; and
TOGETHER
with any and all proceeds resulting or arising from any of the foregoing (the
Property, the Leases, the Revenues, the Accounts, and all other property,
whether real, personal, tangible, or intangible, described above, and all
proceeds thereof, may be referred to collectively as the “Collateral”);
TO HAVE
AND TO HOLD the Collateral hereby conveyed or mentioned and intended so to be,
unto Trustee, for the use and benefit of Beneficiary, to its own for the purpose
of securing the Guaranteed Obligations;
THIS
INSTRUMENT SECURES TO BENEFICIARY (a) the repayment of the indebtedness that may
be evidenced by one or more promissory notes executed and delivered by Borrower
in favor of the Lenders pursuant to the Credit Agreement in the principal sum of
up to Five Million Seventy Thousand and 00/100 Dollars ($5,070,000) (as the same
may be extended, renewed, supplemented, exchanged, substituted, replaced or
modified, collectively, “Notes”);
(b) the payment of all other sums, with interest thereon, advanced by
Beneficiary in accordance herewith to protect the security of this Deed of
Trust; (c) the payment of any and all additional sums which are in the future
loaned by Beneficiary to Borrower, to Trustor and another, or to another
guaranteed or endorsed by Trustor, whether now or hereafter made, incurred or
created, whether voluntary or involuntary and however arising, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, secured or unsecured, whether for principal, interest or other
debts, obligations or liabilities and whether or not all or any of such debts,
obligations or liabilities are or become barred by any statute of limitations or
otherwise unenforceable; (d) the performance of the covenants and agreements of
Trustor herein contained; and (e) the performance of the covenants and
agreements of Borrower contained in the Loan Documents, INCLUDING BORROWER’S
COVENANT TO REPAY ALL FUTURE ADVANCES.
Trustor
covenants that Trustor is lawfully seized of the estate hereby conveyed and has
the right to deed, grant, convey and assign the Property, that subject to any
easements and restrictions listed in a schedule of exceptions to coverage in any
title insurance policy insuring Beneficiary’s interest in the Property, the
Property is unencumbered, and that Trustor will warrant and defend generally the
title to the Property against all claims and demands.
Trustor
represents, warrants, covenants and agrees in favor of Beneficiary as
follows:
SECTION
1. PAYMENT
OF PRINCIPAL AND INTEREST. Trustor shall cause Borrower to
promptly pay when due the Obligations secured by this Deed of
Trust.
SECTION
2. CHARGES;
LIENS. Trustor shall pay or cause to be paid when due and
before delinquency, all taxes, assessments, insurance premiums, ground rents,
and other impositions and charges attributable to the
Property. Trustor shall promptly furnish to Beneficiary all notices
of amounts due under this Section, and in the event Trustor shall make payment
directly, Trustor shall promptly furnish to Beneficiary receipts evidencing such
payments. Except only for the liens and security interests in favor
of Beneficiary under this Deed of Trust and the other Loan Documents, which
Trustor shall pay and discharge in accordance with the Loan Documents, Trustor
shall promptly discharge any lien encumbering all or any portion of or interest
in the Property owned by Trustor, irrespective of the priority of the
same. Trustor shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property.
SECTION
3. HAZARD
INSURANCE. Trustor shall at all times keep the improvements
now existing or hereafter erected on the Property insured against all losses,
hazards, casualties, liabilities and contingencies as Beneficiary (and, if this
Deed of Trust encumbers a leasehold, the applicable lease) shall require and in
such amounts and for such periods as set forth in the Credit
Agreement. The requirements of Trustor to maintain insurance
coverages, and the parties’ rights and obligations in the event of a casualty,
are set forth more fully in the Credit Agreement.
SECTION
4. PRESERVATION AND MAINTENANCE
OF PROPERTY; LEASEHOLDS. Trustor (a) shall not commit waste or
permit impairment or deterioration of the Property, (b) shall not abandon the
Property, (c) to the extent so required by the Credit Agreement, shall restore
or repair all or any part of the Property to the equivalent of its original
condition, or such other condition as Beneficiary may approve in writing, in the
event of any damage, injury or loss thereto, (d) shall keep the Property,
including improvements, fixtures, equipment, machinery and appliances thereon in
good repair and shall replace fixtures, equipment, machinery and appliances on
the Property when necessary to keep such items in good repair, (e) shall comply
with all laws, ordinances, regulations and requirements of any governmental body
applicable to the Property, (f) shall generally operate and maintain the
Property in a manner to ensure maximum rentals, values and marketability of the
Property, and (g) shall give notice in writing to Beneficiary of and, unless
otherwise directed in writing by Beneficiary, appear in and defend any action or
proceeding purporting to affect the Property, the security of this Deed of Trust
or the rights or powers of Beneficiary. Neither Trustor nor any
tenant or other person shall remove, demolish or alter any improvement now
existing or hereafter erected on the Property or any fixture, equipment,
machinery or appliance in or on the Property except when incident to the
replacement of fixtures, equipment, machinery and appliances with items of like
kind; provided however, that Trustor may make non-structural alterations to the
Property or improvements thereon to the extent permitted by the Casino
Lease.
SECTION
5. USE OF
PROPERTY. Unless required by applicable law or unless
Beneficiary has otherwise agreed in writing, Trustor shall not allow changes in
the use for which all or any part of the Property was intended at the time this
Deed of Trust was executed. Trustor shall not subdivide the Property
or initiate or acquiesce in a change in the zoning classification of the
Property without Beneficiary’s prior written consent (other than to the extent
necessary to cause the current use to comply with applicable zoning laws,
ordinances or regulations).
SECTION
6. PROTECTION OF BENEFICIARY’S
SECURITY. If Trustor fails to perform the covenants and
agreements contained in this Deed of Trust or any other Loan Document, or if any
action or proceeding is commenced which affects the Property or title thereto or
the interest of Beneficiary therein, including, but not limited to, eminent
domain, insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, Beneficiary at Beneficiary’s option may make such
appearances, disburse such sums and take such action as Beneficiary deems
reasonably necessary, in its sole discretion, to protect Beneficiary’s interest,
including, but not limited to, (i) disbursement of attorney’s fees, (ii) entry
upon the Property to make repairs, (iii) procurement of satisfactory insurance
as provided herein, (iv) the payment of any taxes and/or assessments levied
against the Property and then due and payable, and (v) payment of any other
amounts contemplated in any of the Loan Documents. Any amounts
disbursed by Beneficiary pursuant to this Section, with interest thereon, shall
become additional indebtedness of Trustor secured by this Deed of
Trust. Unless Trustor and Beneficiary agree to other terms of
payment, such amounts shall be immediately due and payable upon demand and shall
bear interest from the date of disbursement at the rate then applicable to
principal under the Notes unless collection from Trustor of interest at such
rate would be contrary to applicable law, in which event such amounts shall bear
interest at the highest rate which may be collected from Trustor under
applicable law. Nothing contained in this Section or elsewhere in any
of the Loan Documents shall require Beneficiary to incur any expense or take any
action hereunder.
SECTION
7. INSPECTION. Subject
to the rights of Trustor under the Casino Lease, Beneficiary may make or cause
to be made reasonable entries upon and inspections of the Property (including,
but not limited to, phase I and/or phase II environmental audits and
inspections). Any such entry or inspection shall be at Beneficiary’s
expense, except that Trustor shall reimburse Beneficiary on demand for all
expenses related to any such entry or inspection if (a) a Default shall have
occurred prior to such entry or inspection, or (b) if such entry or inspection
reveals (i) any Default, or (ii) any event or condition that with the passage of
time, or the giving of notice, or both, would become a Default.
SECTION
8. BOOKS AND
RECORDS. Trustor shall keep and maintain at all times at
Trustor’s address stated herein, or such other place as Beneficiary may
reasonably approve in writing, materially complete and accurate books of
accounts and records adequate to reflect correctly the results of the operation
of the Property and copies of all written contracts, leases and other
instruments which affect the Property. Such books, records,
contracts, leases and other instruments shall be subject to examination and
inspection at any reasonable time by Beneficiary.
SECTION
9. CONDEMNATION. Trustor
shall promptly notify Beneficiary of any action or proceeding relating to any
condemnation or other taking, whether direct or indirect, of the Property, or
part thereof, and Trustor shall appear in and prosecute any such action or
proceeding unless otherwise directed by Beneficiary in
writing. Trustor authorizes Beneficiary, at Beneficiary’s option, as
attorney-in-fact for Trustor, to commence, appear in and prosecute, in
Beneficiary’s or Trustor’s name, any action or proceeding relating to any
condemnation or other taking of the Property, whether direct or indirect, and to
settle or compromise any claim in connection with such condemnation or other
taking. The proceeds of any award, payment or claim for damages,
direct or consequential, in connection with any condemnation or other taking,
whether direct or indirect, of the Property, or part thereof, or for conveyances
in lieu of condemnation, are hereby assigned to and shall be paid to
Beneficiary, subject to the terms of the Credit Agreement.
SECTION
10. TRUSTOR AND LIEN NOT
RELEASED. From time to time, Beneficiary may, at Beneficiary’s
option, without giving notice to or obtaining the consent of Trustor, Trustor’s
successors or assigns or of any junior lienholder or guarantors, without
liability on Beneficiary’s part and notwithstanding Trustor’s breach of any
covenant or agreement of Trustor in this Deed of Trust, extend the time for
payment of said indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of said indebtedness, accept a renewal note or
notes therefor, release from the lien of this Deed of Trust any part of the
Property, take (with the consent of the party owning the same) or release other
or additional security, reconvey any part of the Property, consent to any map or
plan of the Property, consent to the granting of any easement, join in any
extension or subordination agreement, and agree in writing with Trustor to
modify the rate of interest or period of amortization of the Note or change the
amount of the monthly installments payable thereunder or otherwise modify the
terms and time of payment of said indebtedness. Any actions taken by
Beneficiary pursuant to the terms of this Section shall not affect the
obligation of Trustor or Trustor’s successors or assigns to pay the sums secured
by this Deed of Trust and to observe the covenants of Trustor contained herein,
shall not affect the guaranty of any person, corporation, partnership or other
entity for payment of the indebtedness secured hereby, and shall not affect the
lien or priority of lien hereof on the Property. Trustor shall pay
Beneficiary a reasonable service charge, together with such title insurance
premiums and reasonable attorney’s fees as may be incurred at Beneficiary’s
option, for any such action if taken at Trustor’s request.
SECTION
11. UNIFORM COMMERCIAL CODE
SECURITY AGREEMENT. This Deed of Trust is intended to be a
security agreement pursuant to the Uniform Commercial Code, as in effect in the
State of Washington, as amended or recodified from time to time (the “Uniform
Commercial Code”) for any of the items specified above as part of the
Collateral which, under applicable law, may be subject to a security interest
pursuant to the Uniform Commercial Code, and Trustor hereby grants Beneficiary a
security interest in said items. Trustor agrees that Beneficiary may
file this Deed of Trust, or a reproduction thereof, in the real estate records
or other appropriate index, as a financing statement for any of the items
specified above as part of the Collateral. Any reproduction of this
Deed of Trust or of any other security agreement or financing statement shall be
sufficient as a financing statement. In addition, Trustor agrees to
execute and deliver to Beneficiary, upon Beneficiary’s request, any financing
statements, as well as extensions, renewals and amendments thereof, and
reproductions of this Deed of Trust in such form as Beneficiary may reasonably
require to perfect a security interest with respect to said
items. Trustor shall pay all costs of filing such financing
statements and any extensions, renewals, amendments and releases thereof, and
shall pay all reasonable costs and expenses of any record searches for financing
statements Beneficiary may reasonably require. Without the prior
written consent of Beneficiary, except as expressly provided in the Credit
Agreement, Trustor shall not create or suffer to be created pursuant to the
Uniform Commercial Code any other security interest in said items, including
replacements and additions thereto. Upon a Default, Beneficiary shall
have the remedies of a secured party under the Uniform Commercial Code and, at
Beneficiary’s option, may also invoke the remedies provided herein or in any of
and subject to the terms of the Loan Documents, or pursuant to any applicable
law as to such items. In exercising any of said remedies, Beneficiary
may proceed against the items of real property and any items of personal
property specified above as part of the Collateral separately or together and in
any order whatsoever, without in any way affecting the availability of
Beneficiary’s remedies under the Uniform Commercial Code or of the remedies
provided herein or in any of the Loan Documents. This Deed of Trust
constitutes a fixture filing in accordance with the Washington Uniform
Commercial Code (RCW 62A.9A-102(40)) as to all or any part of the Collateral
which now or hereafter constitutes "Fixtures" under RCW
62A.9A-102(41).
SECTION
12. OBLIGATIONS REGARDING
LEASES. Trustor shall comply with and observe Trustor’s
obligations as landlord or sublandlord (as the case may be) under all Leases of
the Property or any part thereof. Except as expressly set forth in
the Credit Agreement or consented to in writing by Lender (which consent shall
not be unreasonably withheld), Trustor shall not (i) lease any portion of the
Property, (ii) cancel, amend or modify any Lease of any portion of the Property,
(iii) approve any assignment, sublease or underlease of any such Lease (except
such of the same as Trustor is required to approve pursuant to the terms of such
Lease), or (iv) cancel or modify any guaranty, or release any security deposit,
letter of credit, or other item constituting security pertaining to any
Lease.
SECTION
13. TRANSFERS OF THE PROPERTY OR
BENEFICIAL INTERESTS IN TRUSTOR. The sale or other transfer of
all or any part of the Property or of interests in Trustor or its constituents
is restricted in accordance with the Credit Agreement.
SECTION
14. FURTHER
ENCUMBRANCES. The pledge or encumbrance of all or
any portion of the Property or of interests in Trustor or its constituents is
restricted in accordance with the Credit Agreement.
SECTION
15. GENERAL
INDEMNITY. In addition to any other indemnification obligation
set forth elsewhere in the Loan Documents, Trustor shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless Beneficiary and
its members or shareholders, directors, officers, agents, employees,
contractors, attorneys, servicers, and successors and assigns (the “Indemnified
Parties”) from and against any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, or punitive damages, of whatever kind or nature (including, but not
limited to reasonable attorneys’ fees and other costs of defense) (the “Losses”)
imposed upon or incurred by or asserted against any Indemnified Parties and
directly or indirectly arising out of or in any way relating to any one or more
of the following (but excluding: (i) Losses arising out of
Beneficiary’s gross negligence or willful misconduct; or (ii) Losses arising
under CERCLA, the Model Toxic Control Act of the State of Washington (“MTCA”)
or any other environmental law), (a) ownership of this Deed of Trust or any of
the Loan Documents, or ownership of the Property or any interest
therein, or demand for or receipt of any rent or any other amount to be paid by
Trustor as “Tenant” under the Casino Lease; (b) any amendment to, or
restructuring of, any of the Loan Documents or the obligations evidenced or
secured thereby (except any of the same required for a Secondary Market
Transaction); (c) any and all lawful action that may be taken by Beneficiary in
connection with the enforcement of the provisions of any of the Loan Documents,
whether or not suit is filed in connection with same, or in connection with
Trustor, any guarantor or indemnitor and/or any member, partner, joint venturer
or shareholder thereof becoming a party to a voluntary or involuntary federal or
state bankruptcy, insolvency or similar proceeding; (d) any accident, injury to
or death of persons or loss of or damage to property occurring in, on or about
the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (e) any use, nonuse or
condition in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(f) any failure on the part of Trustor to perform or be in compliance with any
of the terms of any of the Loan Documents; (g) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof; (h) the failure of any person to file timely with
the Internal Revenue Service an accurate Form 0000-X, Xxxxxxxxx for Recipients
of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may
be required in connection with this Deed of Trust, or to supply a copy thereof
in a timely fashion to the recipient of the proceeds of the transaction in
connection with which this Deed of Trust is made; (i) any failure of the
Property to be in compliance with any applicable laws; (j) the enforcement by
any Indemnified Party of the provisions of this Section; (k) any and all claims
and demands whatsoever which may be asserted against Beneficiary by reason of
any alleged obligations or undertakings on its part to perform or discharge any
of the terms, covenants, or agreements contained in any Lease (except to the
extent that the same arises by reason of events occurring after Beneficiary
shall have succeeded to the interests of Trustor); (l) the payment of any
commission, charge or brokerage fee to anyone which may be payable in connection
with the Loans evidenced by the Notes; or (m) any misrepresentation made by
Trustor in any of the Loan Documents. Any amounts payable to
Beneficiary by reason of the application of this Section shall become
immediately due and payable upon demand and shall bear interest at the rate then
applicable to principal outstanding under the Notes. The foregoing
indemnitees shall survive payment of the indebtedness secured hereby and
reconveyance of this Deed of Trust.
SECTION
16. ASSIGNMENT OF RENTS;
APPOINTMENT OF RECEIVER; BENEFICIARY IN POSSESSION. As part of
the consideration for the indebtedness evidenced by the Notes, and subject to
the terms and conditions of the Credit Agreement, Trustor hereby absolutely and
unconditionally assigns and transfers to Beneficiary all the Revenues of the
Property, including those now due, past due, or to become due by virtue of any
Lease, other agreement for the use, occupancy or sale, of all or any part of the
Property, regardless of to whom the Revenues are payable. Subject to
the terms and conditions of the Credit Agreement, Trustor and Beneficiary intend
this assignment of Revenues to constitute an absolute assignment and not an
assignment for additional security only. Subject to the terms and
conditions of the Credit Agreement, irrespective of the existence or
nonexistence of any breach by Trustor of any covenant or agreement of Trustor in
this Deed of Trust or any of the Loan Documents, and without the necessity of
Beneficiary entering upon and taking and maintaining full control of the
Property in person, by agent or by a court-appointed receiver, Beneficiary shall
immediately be entitled to possession of all Revenues as specified in this
Section as the same become due and payable, including, but not limited to,
Revenues then due and unpaid, and any such Revenues received by Trustor shall be
held by Trustor as trustee for the benefit of Beneficiary only.
Trustor
hereby covenants and represents that Trustor has not executed any prior
assignment of said Revenues, that Trustor has not performed, and will not
perform, any acts or has not executed, and will not execute, any instrument
which would prevent Beneficiary from exercising its rights under this Section,
and that at the time of execution of this Deed of Trust there has been no
anticipation or prepayment of any of the rents of the Property for more than one
month prior to the due dates of such rents. Trustor covenants that
Trustor will not hereafter collect or accept payment of any rents of the
Property more than one month prior to the due dates of such
rents. Trustor further covenants that Trustor will execute and
deliver to Beneficiary such further assignments of Revenues as Beneficiary may
from time to time reasonably request.
Beneficiary,
at its option at any time, after a Default shall have occurred under any of the
Loan Documents, shall have the complete right, power and authority without
taking possession, to demand, collect and receive and xxx for the rents and
other sums payable under the Leases and to apply the proceeds thereof in
accordance with the Credit Agreement. Upon the occurrence of a
Default, Beneficiary shall have the absolute right to (a) to declare all sums
secured hereby immediately due and payable, and, at its option, exercise any or
all of the rights and remedies contained in the Notes and in the Loan Documents;
and (b) without regard to the adequacy of the security, with or without process
of law, personally or by agent or attorney, or by a receiver to be appointed by
court, then and thereafter to enter upon, take and maintain possession of and
operate the Property, or any part thereof, together with all documents, books,
records, papers, and accounts relating thereto and exclude Trustor and its
agents and servants therefrom, and hold, operate, manage and control the
Property, or any part thereof, as fully and to the same extent as Trustor could
do if in possession and in such event, without limitation and at the expense of
Trustor, from time to time cause to be made all necessary or proper repairs,
renewals, replacements, useful alterations, additions, betterments and
improvements to the Property, or any part thereof, as Beneficiary deems
judicious, and pay taxes, assessments and prior or proper charges on the
Property, or any part thereof, and insure and reinsure the same, and lease the
Property, or any part thereof, for such terms and on such terms as Beneficiary
deems desirable, including leases for terms expiring beyond the maturity of the
indebtedness secured by the Loan Documents and cancel any Lease or sublease
thereof for any cause or on any ground which would entitle Trustor to cancel the
same. In the event Beneficiary elects to seek the appointment of a
receiver for the Property upon a Default, Trustor hereby expressly consents to
the appointment of such receiver. Beneficiary or the receiver shall
be entitled to receive a reasonable fee for so managing the
Property.
If the
Revenues of the Property are not sufficient to meet the reasonable costs, if
any, of taking control of and managing the Property and collecting the rents,
any funds expended by Beneficiary for such purposes shall become indebtedness of
Trustor to Beneficiary secured by this Deed of Trust. Unless
Beneficiary and Trustor agree in writing to other terms of payment, such amounts
shall be payable upon notice from Beneficiary to Trustor requesting payment
thereof and shall bear interest from the date of disbursement at the rate stated
in the Notes unless payment of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from Trustor under applicable law.
Any
entering upon and taking and maintaining of control of the Property by
Beneficiary or the receiver and any application of Revenues as provided herein
shall not cure or waive any default hereunder or invalidate any other right or
remedy of Beneficiary under applicable law or provided herein. This
assignment of Revenues shall terminate at such time as this Deed of Trust ceases
to secure the Obligations.
SECTION
17. DEFAULTS; ACCELERATION;
REMEDIES.
Upon the
occurrence of any Default, Beneficiary may, at Beneficiary’s option, declare all
of the sums secured by this Deed of Trust to be immediately due and payable
without further demand, and may exercise, at Beneficiary’s option, and by or
through Trustee, by Beneficiary itself, or otherwise, any and all remedies
permitted hereunder, under any of the Loan Documents, or pursuant to applicable
law.
In
addition, upon the occurrence of a Default and subject to any applicable cure
period, Beneficiary may, at Beneficiary’s option, and by or through Trustee, by
Beneficiary itself, or otherwise, do any one or more of the
following:
(a) Right to Perform Trustor’s
Covenants. If Trustor has failed to keep or perform any
covenant whatsoever contained in this Deed of Trust or the other Loan Documents,
Beneficiary may, but shall not be obligated to any person to do so, perform or
attempt to perform said covenant. Any payment made or expense
incurred in the performance or attempted performance of any such covenant,
together with any sum expended by Beneficiary that is chargeable to Trustor or
subject to reimbursement by Trustor under the Loan Documents, shall be and
become a part of the indebtedness, and Trustor promises, upon demand, to pay to
Beneficiary, for the benefit of the Lenders, at the place where the Notes are
payable, all sums so incurred, paid or expended by Beneficiary, with interest
from the date when paid, incurred or expended by Beneficiary at the
Default Rate set forth in Section 2.10(a) of the Credit Agreement.
(b) Trustees Sale - Power of
Sale. Upon any Default, Beneficiary may deliver to Trustee a written
declaration of default and demand for sale and a written notice of default and
election to cause Trustor’s interest in the Property to be sold, and Trustee
shall with or without entry, personally or by its agents or attorneys insofar as
applicable pursuant to and in accordance with the laws of the State of
Washington sell the Property, and all estate, right, title, and interest, claim
and demand therein, and right of redemption thereof, at one or more sales, as an
entity or in parcels, after such notice thereof as may be required or permitted
by law at public auction to the highest bidder for cash, in lawful money of the
United States, payable at the time of sale. Trustee may postpone from
time to time any sale by it to be made under or by virtue of this Deed of Trust
by announcement at the time and place appointed for such sale or for such
postponed sale or sales; and, except as otherwise provided by any applicable
provision of law, Trustee, without further notice or publication, may make such
sale at the time and place to which the same shall be so postponed.
Upon the
completion of any sale or sales made by Trustee under or by virtue of this
subsection 17(b), Trustee shall execute and deliver to the accepted purchaser or
purchasers a good and sufficient instrument, or good and sufficient instruments
conveying, assigning and transferring all estate, right, title and interest in
and to the Property and rights sold, but without any covenant or warranty,
express or implied. Any deed delivered to the purchaser at any sale
pursuant hereto may be without any covenant or warranty, expressed or
implied. The recitals in the deed shall be prima facie evidence of
the truth of the statements made therein. Any such sale or
sales made under or by virtue of this subsection 17(b), whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or of
a judgment or decree of foreclosure and sale, shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Trustor in and to the properties and rights so sold, and shall be
a perpetual bar both at law and in equity against Trustor and against any and
all persons claiming or who may claim the same, or any part thereof from,
through or under Trustor. In the event of any sale made whether made
under the power of sale herein granted or under or by virtue of judicial
proceedings or of a judgment or decree of foreclosure and sale, the entire
principal of, and interest on, the Notes, if not previously due and payable, and
all other sums required to be paid by Trustor pursuant to this Deed of Trust,
immediately thereupon shall, anything in the Notes or in this Deed of Trust to
the contrary notwithstanding, become due and payable. Upon any sale
made under or by virtue of this subsection 17(b) whether made under the power of
sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, Beneficiary may bid for and acquire
the Property or any part thereof and, in lieu of paying cash therefor may make
settlement for the purchase price by crediting upon the indebtedness of Trustor
secured by this Deed of Trust the net sales price after deducting therefrom the
expenses of the sale, and the cost of such action and any other sums which
Beneficiary is authorized to deduct under this Deed of
Trust. Beneficiary, upon so acquiring the Property, or any part
thereof shall be entitled to hold, lease, rent, operate, manage and sell the
same in any manner permitted by applicable laws. To the full extent
permitted by applicable law, the Property or any part thereof, may be sold in
one parcel and as an entirety, or in such parcels, manner or order as Trustee in
its sole discretion may elect, and one or more exercises of the rights herein
granted shall not extinguish or exhaust the rights unless the entire Property is
sold or the entire indebtedness secured by this Deed of Trust paid in full; and
Beneficiary, or its assigns, shall collect the proceeds as provided in this Deed
of Trust or as required by applicable law; and Trustor agrees that in case of a
sale, as herein provided, Trustor or any person in possession under Trustor
shall then become and be tenants holding over, and shall forthwith deliver
possession to the purchaser at such sale, or be summarily dispossessed in
accordance with the provisions of law applicable to tenants holding over; the
rights hereby granted are in addition to any and all other remedies which
Beneficiary may have at law or in equity. Trustor hereby expressly
waives any right which it may have to direct the order in which any of the
Property shall be sold in the event of any sale or sales pursuant
hereto. Beneficiary shall be entitled to collect all costs and
expenses incurred in pursuing such remedies, including, but not limited to,
reasonable attorney’s fees and costs of environmental reports, appraisals,
documentary evidence, abstracts, and title reports. Upon the breach
of any representation, warranty, covenant or agreement by Trustor in this Deed
of Trust (including, but not limited to, the covenants to pay when due sums
secured by this Deed of Trust), or any other Loan Document, Beneficiary, at
Beneficiary’s option may, in addition to any remedies specified in this
covenant, invoke any other remedies provided in any other Loan Document or as
provided hereunder.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-8-
The
proceeds of the sale shall be applied in the following order: (a) to all costs
and expenses of the sale, including, but not limited to, fees for any
foreclosure services, reasonable attorney’s fees and a reasonable fee or
commission to Trustee, and costs of title evidence; (b) to all sums secured by
this Deed of Trust in such order as Beneficiary, in Beneficiary’s sole
discretion, directs; and (c) the excess, if any, to the person or persons
legally entitled thereto.
(c) Beneficiary’s Judicial
Remedies. Beneficiary, or Trustee upon written request of
Beneficiary, may proceed by suit or suits, at law or in equity, to enforce the
payment of the indebtedness to foreclose the liens and security interests of
this Deed of Trust as against all or any part of the Property, and to have all
or any part of the Property sold under the judgment or decree of a court of
competent jurisdiction. This remedy shall be cumulative of any other
nonjudicial remedies available to Beneficiary under this Deed of Trust or the
other Loan Documents. Proceeding with a request or receiving a
judgment for legal relief shall not be or be deemed to be an election of
remedies and shall not bar any available nonjudicial remedy of
Beneficiary.
(d) Beneficiary’s Uniform
Commercial Code Remedies. Beneficiary may exercise its rights
of enforcement under the Uniform Commercial Code.
(e) Other
Rights. Beneficiary (i) may surrender the policies maintained
by Trustor pursuant to this Deed of Trust or any part thereof, and upon receipt
shall apply the unearned premiums as a credit on the indebtedness, and, in
connection therewith, Trustor hereby appoints Beneficiary as agent and
attorney-in-fact (which is coupled with an interest and is therefore
irrevocable) for Trustor to collect such premiums; and (ii) may apply the
Reserves and any other funds held by Beneficiary toward payment of the
indebtedness; and (iii) shall have and may exercise any and all other rights and
remedies which Beneficiary may have at law or in equity, or by virtue of any of
the Loan Documents, or otherwise.
(f) Discontinuance of
Remedies. In case Beneficiary shall have proceeded to invoke
any right, remedy, or recourse permitted under the Loan Documents and shall
thereafter elect to discontinue or abandon the same for any reason, Beneficiary
shall have the unqualified right so to do and, in such event, Trustor and
Beneficiary shall be restored to their former positions with respect to the
indebtedness, the Loan Documents, the Property or otherwise, and the rights,
remedies, recourses and powers of Beneficiary shall continue as if same had
never been invoked.
SECTION
18. ACCELERATION IN CASE OF
TRUSTOR’S INSOLVENCY. The Credit Agreement includes provisions
regarding acceleration upon certain bankruptcy events and similar occurrences
pertaining to the Property, Trustor, and the constituents of
Trustor.
SECTION
19. REMEDIES
CUMULATIVE. Each remedy provided in this Deed of Trust is
distinct and cumulative to all other rights or remedies under this Deed of Trust
or afforded by law or equity, and may be exercised concurrently, independently,
or successively, in any order whatsoever.
SECTION
20. WAIVER OF STATUTE OF
LIMITATIONS. Trustor hereby waives the right to assert any
statute of limitations as a bar to the enforcement of the lien of this Deed of
Trust or to any action brought to enforce the Notes or any other obligation
secured by this Deed of Trust.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-9-
SECTION
21. WAIVER OF
MARSHALLING. Notwithstanding the existence of any other
security interest in the Property held by Beneficiary or by any other party,
Beneficiary shall have the right to determine the order in which any or all of
the Property shall be subjected to the remedies provided
herein. Beneficiary shall have the right to determine the order in
which any or all portions of the indebtedness secured hereby are satisfied from
the proceeds realized upon the exercise of the remedies provided
herein. Trustor, any party who consents to this Deed of Trust and any
party who now or hereafter acquires a security interest in the Property and who
has actual or constructive notice hereof hereby waives any and all right to
require the marshalling of assets in connection with the exercise of any of the
remedies permitted by applicable law or provided herein.
SECTION
22. PERFECTION UPON
RECORDATION. Trustor acknowledges that Beneficiary has taken
all reasonable actions necessary to obtain, and that upon recordation of this
Deed of Trust, Beneficiary shall have, to the extent permitted under applicable
law, a valid and fully perfected, first priority, present assignment of
Trustor's interest in the rents arising out of any leases of the Land and
Trustor acknowledges and agrees that upon recordation of this Deed of Trust,
Beneficiary’s interest in such rents shall be deemed to be fully perfected,
“xxxxxx” and enforced as to Trustor and all third parties, including, without
limitation, any subsequently appointed trustee in any case under the Bankruptcy
Code (as hereinafter defined), without the necessity of commencing a foreclosure
action with respect to this Deed of Trust, making formal demand for the rents,
obtaining the appointment of a receiver or taking any other affirmative
action.
SECTION
23. RELEASE. Upon
payment of all sums secured by this Deed of Trust, Beneficiary shall release
this Deed of Trust of record. Trustor shall pay Beneficiary’s then
reasonable fee for such release of this Deed of Trust.
SECTION
24. TRUSTOR’S ADDITIONAL
COVENANTS. Trustor hereby covenants, agrees and undertakes as
follows:
(a) Alterations of
Property. Except to the extent otherwise permitted or required
in the Credit Agreement, Trustor shall not undertake or commence any alterations
of any improvements on the Property.
(b) Further
Assurances. Trustor shall from time to time, at the request of
Beneficiary, (i) promptly correct any defect, error or omission which may be
discovered in the contents of this Deed of Trust or in any other Loan Document
or in the execution or acknowledgment thereof; (ii) execute, acknowledge,
deliver and record and/or file such further documents or instruments (including,
without limitation, further deeds of trust, mortgages, security agreements,
financing statements, continuation statements, assignments of rents or leases
and environmental indemnity agreements) and perform such further acts and
provide such further assurances as may be necessary, desirable or proper, in
Beneficiary’s reasonable opinion, to carry out more effectively the purposes of
this Deed of Trust and such other instruments and to subject to the liens and
security interests hereof and thereof any property intended by the terms hereof
or thereof to be covered hereby or thereby, including specifically, but without
limitation, any renewals, additions, substitutions, replacements, or
appurtenances to the Property; provided that such documents or instruments do
not monetarily or otherwise materially increase Trustor’s liability or reduce
Trustor’s rights under the Loan Documents; and (iii) execute, acknowledge,
deliver, procure, and file and/or record any document or instrument (including
specifically, but without limitation, any financing statement) deemed advisable
by Beneficiary to protect the liens and the security interests herein granted
against the rights or interests of third persons; provided that such documents
or instruments do not monetarily or otherwise materially increase Trustor’s
liability or reduce Trustor’s rights under the Loan
Documents. Trustor will pay all reasonable costs connected with any
of the foregoing in this paragraph.
(c) Deed of Trust
Taxes. Trustor shall, at any time any law shall be enacted
imposing or authorizing the imposition of any tax upon this Deed of Trust, or
upon any rights, titles, liens or security interests created hereby, or upon the
obligations secured hereby or any part thereof, immediately pay all such taxes;
provided that, if such law as enacted makes it unlawful for Trustor to pay such
tax, Trustor shall not pay nor be obligated to pay such tax, and in the
alternative, Trustor may, in the event of the enactment of such a law, and must,
if it is unlawful for Trustor to pay such taxes, prepay without penalty the
obligations secured hereby in full within 60 days after demand therefor by
Beneficiary.
(d) Minerals. Trustor
shall not permit any drilling or exploration for or extraction, removal or
production of any mineral, natural element, compound or substance from the
surface or subsurface of the Property regardless of the depth thereof or the
method of mining or extraction thereof.
(e) Maintenance of Trustor Name,
Structure. Trustor shall not change its name, identity,
structure or employer identification number during the term of the
Loans.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-10-
(f) Costs and
Expenses. Except as limited or provided otherwise by the
Credit Agreement, Trustor shall pay on demand all reasonable and bona fide
out-of-pocket costs, fees and expenses and other expenditures, whether incurred
before or after judgment, including, but not limited to, reasonable attorneys’
fees and expenses, paid or incurred by Beneficiary to third parties incident to
this Deed of Trust or any other Loan Document (including, but not limited to,
reasonable attorneys’ fees and expenses in connection with the negotiation,
preparation and execution hereof and of any other Loan Document and any
amendment hereto or thereto, any release hereof, any consent, approval or waiver
hereunder or under any other Loan Document, the making of any advance under the
Notes, and any suit to which Beneficiary is a party involving this Deed of Trust
or the Property) or incident to the enforcement of the obligations secured
hereby or the exercise of any right or remedy of Beneficiary under any Loan
Document.
(g) Compliance with
Laws. Trustor shall maintain and keep the Property in
compliance with all applicable laws.
(h) Covenant Running with the
Land. All of Trustor's obligations under this Deed of Trust
are intended by Trustor and Beneficiary to be, and shall be construed as,
covenants running with the Land. As used herein, “Trustor” shall
refer to the party named in the first paragraph of this Deed of Trust and to any
subsequent owner of all or any portion of the Land. All persons who
may have or may acquire an interest in the Land shall be deemed to have notice
of, and be bound by, the terms of the Loan Documents; however, no such party
shall be entitled to any rights thereunder without the prior written consent of
Beneficiary. In addition, all of the covenants of Trustor in any of
the Loan Documents are incorporated herein by reference and, together with
covenants in this paragraph, shall be covenants running with the
Land.
SECTION
25. NOTICE. All
notices under this Deed of Trust shall be given in accordance with the Credit
Agreement.
SECTION
26. GOVERNING LAW;
SEVERABILITY. This Deed of Trust and the security interests
(including in personal property) created hereunder shall be governed by the laws
of the state in which the Property is located. In the event that any
provision of this Deed of Trust or any other Loan Document conflicts with
applicable law, such conflict shall not affect other provisions of this Deed of
Trust or the applicable Loan Document which can be given effect without the
conflicting provisions, and to this end the provisions of this Deed of Trust and
the other Loan Documents are declared to be severable.
SECTION
27. TRANSFER OF
LOAN. Subject to the terms of the Credit Agreement,
Beneficiary and/or the Lenders, as applicable, may, at any time, sell, transfer
or assign the Notes, this Deed of Trust and the Loan Documents, or any part
thereof, and in connection therewith, Trustor shall provide such information and
otherwise cooperate as more fully set forth in the Credit
Agreement.
SECTION
28. SUCCESSORS AND ASSIGNS
BOUND. This Deed of Trust and the other Loan Documents shall
be binding upon and inure to the benefit of Trustor and Beneficiary and their
respective successors and assigns forever. The foregoing is subject to the
restrictions on transferability of the Property and interests in Trustor and its
constituents set forth in the Credit Agreement. Notwithstanding the
foregoing, Beneficiary shall have no liability under any of the Loan Documents
for any matter arising after a Lender transfers its interest in its Note to any
successor. However, Beneficiary shall continue to have the benefit of
all rights having accrued under the Loan Documents theretofore, and all rights
under all obligations of indemnification set forth in the Loan Documents for
matters arising theretofore, then, and thereafter.
SECTION
29. FORBEARANCE BY BENEFICIARY
NOT A WAIVER. Any forbearance by Beneficiary in exercising any
right or remedy hereunder, or otherwise afforded by applicable law, shall not be
a waiver of or preclude the exercise of any right or remedy. The
acceptance by Beneficiary of payment of any sum secured by this Deed of Trust
after the due date of such payment shall not be a waiver of Beneficiary’s right
to either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment, subject to any notice or
grace period expressly provided for in the Credit Agreement. The
procurement of insurance or the payment of taxes or other liens or charges by
Beneficiary in accordance with the Loan Documents shall not be a waiver of
Beneficiary’s right to accelerate the maturity of the indebtedness secured by
this Deed of Trust in accordance with the Loan Documents, nor shall
Beneficiary’s receipt of any awards, proceeds or damages, whether as proceeds of
insurance or condemnation awards or otherwise, operate to cure or waive
Trustor’s default in payment of sums secured by this Deed of Trust.
SECTION
30. ESTOPPEL
CERTIFICATE. Trustor shall within ten business days of a
written request from Beneficiary furnish Beneficiary with a written statement,
duly acknowledged, setting forth the sums secured by this Deed of Trust and any
right of set-off, counterclaim or other defense which exists against such sums
and the obligations of this Deed of Trust and attaching true, correct and
complete copies of the Notes, this Deed of Trust and any other Loan Documents
and any and all modifications, amendments and substitutions
thereof.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-11-
SECTION
31. WAIVER OF JURY
TRIAL. TRUSTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT TRUSTOR MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE
NOTES, THIS INSTRUMENT, ANY OTHER LOAN DOCUMENT, ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY.
SECTION
32. MISCELLANEOUS.
(a) No Oral
Change. No provision of this Deed of Trust or any of the other
Loan Documents may be modified, amended, waived, extended, changed, discharged
or terminated orally or by any act or failure to act on the part of Trustor or
Beneficiary, except only by an agreement in writing signed by the party against
whom enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
(b) Liability. If
Trustor consists of more than one Person, the obligations and liabilities of
each such Person hereunder shall be joint and several.
(c) Captions. The
captions and headings of the Sections, paragraphs, and other provisions of this
Deed of Trust are for convenience only and are not to be used to interpret or
define the provisions hereof.
(d) Duplicate Originals;
Counterparts. This Deed of Trust may be executed in any number
of duplicate originals and each duplicate original shall be deemed to be an
original. This Deed of Trust may be executed in multiple
counterparts.
(e) Number and
Gender. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice
versa.
(f) Subrogation. If
any or all of the indebtedness evidenced by the Notes have been used to
extinguish, extend or renew any indebtedness heretofore existing against the
Property, then, to the extent of the funds so used, Beneficiary shall be
subrogated to all of the liens securing the same.
(g) Action through
Agents. In exercising any rights hereunder or under any of the
Loan Documents or taking any actions provided for herein or therein, Beneficiary
may act through its employees, agents or independent contractors as authorized
by Beneficiary.
(h) Conflicts. In
the event of any conflict between this Deed of Trust and the Credit Agreement,
the Credit Agreement shall prevail.
SECTION
33. STATE –SPECIFIC
PROVISIONS.
(a) Principles of
Construction. In the event of any inconsistencies between the
terms and conditions of this Section 33 and the terms and conditions of this
Deed of Trust, the terms and conditions of this Section 33 shall control and be
binding.
(b) Fixture
Filing. This Deed of Trust shall constitute a security
agreement and continuously perfected financing statement filed as a fixture
filing. Trustor hereby authorizes Beneficiary to execute, deliver,
file or refile as secured party as such term is used in the Uniform Commercial
Code of the State of Washington (the “Secured
Party”), without joinder of the debtor as such term is used in the
Uniform Commercial Code (the “Debtor”),
any financing statement, continuation statement, or other instruments
Beneficiary may reasonably require from time to time to perfect or renew such
security interest under the Uniform Commercial Code of the State of
Washington. The Trustor with respect to the Property is, for the
purposes of this Deed of Trust, deemed to be the Debtor, and Beneficiary is
deemed to be the Secured Party. The addresses of Secured Party and
Debtor from which information concerning the security agreement may be obtained
are set forth on the first page of this Deed of Trust. Trustor’s
Washington organizational identification number is
[602990936].
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-12-
(c) Power of
Sale. In the event of any Default and upon written request of
Beneficiary, Trustee shall sell the Property in accordance with the Deed of
Trust Act of the State of Washington (RCW Chapter 61.24 as existing now or
hereafter amended) and the Uniform Commercial Code, where applicable, at public
auction to the highest bidder. Any person except Trustee may
bid at the Trustee’s sale. Trustee shall apply the proceeds of
the sale as follows: (i) to the expenses of sale, including a
reasonable Trustee’s fee and attorneys’ fees; (ii) to all the indebtedness
evidenced by the Credit Agreement and all other indebtedness secured by this
Deed of Trust or any other instrument; (iii) the surplus, if any, shall be
distributed in accordance with said Deed of Trust Act. Trustee shall
deliver to the purchaser at the sale its deed, without warranty, which shall
convey to the purchaser the interest in the property which Trustor had or had
the power to convey at the time of its execution of this Deed of Trust and such
as it may have acquired thereafter. Trustee’s deed shall recite the
facts showing that the sale was conducted in compliance with all the
requirements of the law and of this Deed of Trust, which recital shall be prima
facie evidence of such compliance and conclusive evidence thereof in favor of
bona fide purchasers and encumbrances for value. The power of sale
conferred by this Deed of Trust and by the Deed of Trust Act of the State of
Washington is not an exclusive remedy, and when not exercised Beneficiary may
foreclose this Deed of Trust as a mortgage.
(d) Trustee Notification
Obligation. Unless otherwise provided by applicable law,
Trustee is not obligated to notify any party hereto of pending sale under any
other deed of trust or security instrument or of any action or proceeding in
which Trustor, Trustee or Beneficiary shall be a party, unless such action
or proceeding is brought by Trustee.
(e) Beneficiary Right of
Rescission. Beneficiary, from time to time before the
Trustee’s sale of the Property pursuant to this Section 33, may rescind any
notice of default or notice of sale by executing and delivering to Trustee a
written notice of discontinuance of the Trustee’s sale, which notice, when
recorded, shall also constitute a cancellation of any prior notice of default
and notice of sale. The exercise by Beneficiary of such right of
rescission shall not constitute a waiver of any breach or default then existing
or subsequently occurring, or impair the right of Beneficiary to execute and
deliver to Trustee, as above provided, other notices of default and notices of
sale, nor otherwise affect any provision, covenant or condition of the Credit
Agreement and/or of this Deed of Trust or any of the rights, obligations or
remedies of the parties thereunder or hereunder.
(f) Trustor Statutory Right of
Redemption. In the event that this Deed of Trust is foreclosed
as a mortgage and the Property sold at a foreclosure sale, the purchaser may,
during the statutory redemption period, make such repairs or alterations on the
Property as may be reasonably necessary for the proper operation, care,
preservation, protection and insuring thereof. Any sums so paid,
together with interest thereon from the time of such expenditure at an interest
rate equal to the rate otherwise applicable plus three percent (3%) per annum
until paid, shall be added to and become a part of the amount required to be
paid for redemption from such sale.
(g) Beneficiary Foreclosure
Rights. Beneficiary shall have the right, at its option, to
foreclose this Deed of Trust subject to the rights of any tenant or tenants of
the Property, and the failure to make any such tenant or tenants a party
defendant to any such suit or action or to foreclose their rights will not be
asserted by the Trustor as a defense in any action or suit instituted to collect
the indebtedness secured hereby or any part thereof or any deficiency
remaining unpaid after foreclosure and sale of the Property, any statute or rule
of law at any time existing to the contrary notwithstanding. In the
case of a sale pursuant to a foreclosure of this Deed of Trust, the Property,
real, personal or mixed, may be sold as an entirety or in parcels, by one sale
or by several sales held at one time or at different times, all as Trustee, in
its unrestricted discretion, may elect, and Trustor, for and on behalf of itself
and all persons claiming by, through or under Trustor, waives any and all right
to have the property and estates comprising the Property marshaled upon any
foreclosure sale and agrees that, upon foreclosure, the Property may be sold as
an entirety and not in parcels.
(h) Trustee Acceptance. Trustee
accepts this Trust when this Deed of Trust, duly executed and acknowledged, is
made a public record as provided by law.
(i) Substitution of
Trustee. Beneficiary may, from time to time, by a written
instrument executed and acknowledged by Beneficiary and recorded in the county
or counties where the Property is located, and by otherwise complying with
appropriate statutory provisions, substitute a successor or successors for the
Trustee named herein or acting hereunder. Upon the recording of such
appointment in the mortgage records of the county or counties in which the
Property is situated, the successor Trustee shall be vested with all the powers
of the original Trustee.
(j) Trustor Notice
Address. Trustor requests that a copy of any notice of default
and of any notice of sale hereunder be mailed to Trustor at the address
referenced in the first paragraph hereof.
(k) Non-Agricultural
Use. The Property which is the subject of this Deed of Trust
is not used principally for agricultural purposes.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
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(l) Commercial
Use. The obligations and indebtedness evidenced by the Notes
and the Credit Agreement were incurred primarily for commercial, investment or
business purposes and not for personal, family or household
purposes.
(m) Protective
Advances. It is hereby agreed that Beneficiary is hereby
subrogated to all of the rights, liens, remedies, equities, superior title and
benefits held, owned, possessed or enjoyed at any time by any owners or holders
of the indebtedness discharged from funds advanced under the
Notes. Trustor further agrees that if it becomes necessary for
Beneficiary to advance any sum greater than the indebtedness permitted under the
Credit Agreement (which advancement may be for taking up vendor’s or other
liens, past due taxes, insurance premiums, liens for labor or materials, for
procuring deeds or any other instruments or actions to protect title of Trustor
or otherwise preserve, protect and/or perfect Beneficiary’s interests in the
collateral or other security granted by Trustor pursuant to the Loan Documents,
and/or to enforce its rights under this Deed of Trust or any of the other Loan
Documents), Beneficiary may do so and such advancements and expenditures, plus
interest thereon, shall constitute additional sums secured by this Deed of
Trust, which advancements and expenditures Trustor hereby agrees to cause
Borrower to pay upon demand. To the full extent permitted by
applicable laws, the lien of this Deed of Trust, as to all such sums so
advanced, shall have priority over all subsequent liens and encumbrances,
including statutory liens, excepting solely taxes and assessments levied on the
Property secured by the Deed of Trust.
(n) Notice Regarding Oral
Agreements. WASHINGTON STATE NOTICE: ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY/EXTEND CREDIT, OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
SECTION
34. TRUSTEE. Trustee
may resign by the giving of written notice of such resignation to
Beneficiary. If Trustee shall die, resign, or become disqualified
from acting in the execution of this trust, or if, for any reason, Beneficiary
shall prefer to appoint a substitute trustee or multiple substitute trustees, or
successive substitute trustees or successive multiple substitute trustees, to
act instead of the aforenamed Trustee, Beneficiary shall have full power to
appoint a substitute trustee (or, if preferred, multiple substitute trustees) in
succession who shall succeed (and if multiple substitute trustees are appointed,
each of such multiple substitute trustees shall succeed) to all the estates,
rights, powers, and duties of the aforenamed Trustee and shall execute,
acknowledge and record a sufficient deed of appointment in compliance with local
law. Such appointment may be executed by any authorized agent of
Beneficiary, and if such Beneficiary be a corporation and such appointment be
executed in its behalf by any officer of such corporation, 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 the corporation. If multiple substitute Trustees
are appointed, each of such multiple substitute Trustees shall be empowered and
authorized to act alone without the necessity of the joinder of the other
multiple substitute trustees, whenever any action or undertaking of such
substitute trustees is requested or required under or pursuant to this Deed of
Trust or applicable law. Any substitute Trustee appointed pursuant to
any of the provisions hereof shall, without any further act, deed, or
conveyance, become vested with all the estates, properties, rights, powers, and
trusts of its or his predecessor in the rights hereunder with like effect as if
originally named as Trustee herein; but nevertheless, upon the written request
of Beneficiary or of the substitute Trustee, the Trustee ceasing to act shall
execute and deliver any instrument transferring to such substitute Trustee, upon
the trusts herein expressed, all the estates, properties, rights, powers, and
trusts of the Trustee so ceasing to act, and shall duly assign, transfer and
deliver any of the property and moneys held by such Trustee to the substitute
Trustee so appointed in the Trustee’s place. No fees or expenses
shall be payable to Trustee, except in connection with a foreclosure of the
Collateral or any part thereof or in connection with the release of the
Collateral following payment in full of the indebtedness.
Notwithstanding
anything contained in this Deed of Trust, Trustee (including any successor of
Trustee) shall have the power of sale under this Deed of Trust in lieu of
Beneficiary, and all references in the Deed of Trust to Beneficiary having a
power of sale shall refer instead to the power of sale in
Trustee. The construction of this instrument as a deed of trust and
the grant to Trustee as set forth above shall not limit the rights and
authorities separately granted to Beneficiary under this Deed of Trust except as
expressly provided in this Section 34 and shall not limit the assignment of
leases and rents to Beneficiary contained in this Deed of Trust or as separately
provided in the Credit Agreement of even date herewith between Trustor and
Beneficiary with respect to the Property.
SECTION
35. TRUSTEE’S COVENANTS AND
ACCEPTANCE. Trustee covenants faithfully to perform the trust
herein created, being liable, however, only for gross negligence or willful
misconduct. Trustee accepts this trust, when this Deed of Trust, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of any
action or proceeding in which Trustor, Beneficiary or Trustee shall be a party
unless brought by Trustee.
SECTION
36. CASINO LEASE
PROVISIONS.
(a) Casino
Lease. The Casino Lease consists of the following
documents:
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
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(i) Commercial
Premises Lease (the “Hollywood
Casino Lease”), dated as of March 5, 2007, between Hollydrift Gaming,
Inc., d/b/a Club Hollywood, as Lessee (“Tenant”),
and Old 99 Property Group, L.L.C., as Lessor (“Landlord”);
and
(ii) that
certain Xxxx of Sale and Assignment and Assumption Agreement dated on or about
the date hereof, wherein Tenant assigned the Hollywood Casino Lease to Trustor,
and Trustor assumed all of Tenant’s obligations thereunder.
As used herein, the “Casino
Lease” shall mean the above-described documents and any modifications and
amendments thereof that hereafter may be executed and approved in writing in
advance by Beneficiary.
(b) Trustor
represents and warrants in favor of Beneficiary as follows:
(i) Trustor
has delivered to Beneficiary a true, correct and complete copy of the Casino
Lease. The Casino Lease contains the entire agreement of Landlord and Trustor
pertaining to the Property and has not been amended, modified, supplemented or
assigned. Trustor has no estate, right, or interest in or to the
Property except under and pursuant to the Casino Lease. Except for
the documents expressly identified in Section 36(a) above,
no modifications or amendments have occurred to the Casino Lease. No
such modifications or amendments are contemplated. Landlord and
Trustor have no agreements pertaining to all or any portion of the Property or
improvements other than the agreements set forth in the Casino
Lease.
(ii) To
the best knowledge of Trustor, Landlord is the exclusive fee simple owner of the
Property, subject only to the Casino Lease and items expressly disclosed in the
policy of title insurance issued in favor of Beneficiary in connection with the
origination of this Deed of Trust, and Landlord is the sole owner of the
lessor’s interest in the Casino Lease.
(iii) The
Casino Lease is in full force and effect. All conditions and
contingencies to the effectiveness of the Casino Lease and the commencement of
the regular term thereof (“Term”)
have been satisfied. The Term has commenced, is in effect, and is
scheduled to expire February 28, 2017. The Casino Lease provides for
four (4) options to extend the Casino Lease for a period of five (5) years in
each case.
(iv) No
breach or default under the Casino Lease (a “Casino
Lease Default”) exists or has occurred (i) as to Trustor’s
obligations under the Casino Lease, nor (ii) to Trustor’s best knowledge,
as to Landlord’s obligations under the Casino Lease. Trustor does not
have and has not received any notice, communication, or information that a
Casino Lease Default has occurred or exists, or that Landlord or anyone alleges
the same to have occurred or exist.
(v) Trustor
is the exclusive owner of the tenant’s interest under and pursuant to the Casino
Lease. Trustor has not assigned, transferred, or encumbered any
interest of Trustor in, to, or under the Casino Lease, except in favor of
Beneficiary pursuant to this Deed of Trust and the Loan Documents, and also
except for subleases as to which Trustor is the sublessor. There are
no leases affecting the Property other than the Casino Lease and such
subleases.
(vi) Neither
the execution and delivery of the Loan Documents by Trustor nor Trustor’s
performance in accordance therein will constitute a breach of or default under,
or result in the creation of any mortgage, charge, lien or encumbrance
under:
(a) any
law, statute or regulation, of Canada, the United States of America or of any
other jurisdiction in which Trustor does business or is otherwise subject to
jurisdiction; or
(b) any
agreement or instrument to which Trustor is a party including but not limited to
the Casino Lease.
(c) As
security for all obligations secured by this Deed of Trust, Trustor hereby
irrevocably grants, conveys, transfers and assigns to Trustee in trust for the
benefit of Beneficiary, with power of sale and right of entry and possession,
all right, title, and interest in and to the Property that may hereafter be
acquired by Trustor. Without limitation of the foregoing, if Trustor
should acquire the fee estate in the Property or in any land or improvements
comprising the same, or should acquire any interest or estate in the Property or
any component thereof other than Trustor presently holds, then this Deed of
Trust shall encumber and constitute a lien upon any and all of such interest or
estate, without further act or instrument by Trustor or
anyone. Trustor immediately shall notify Beneficiary of any such
acquisition. Upon reasonable request of Beneficiary and without cost
or expense to Beneficiary, Trustor will execute, acknowledge and deliver all
such further instruments and assurances as Beneficiary shall require to ratify,
confirm, or perfect Beneficiary’s lien on any right, title, interest or estate
in or to the Property acquired at any time hereafter.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-15-
(d) No
merger shall occur by reason of any acquisition by Trustor of any additional
right, title, interest or estate in or to the Property or any component thereof.
Without limitation of the foregoing, unless Beneficiary shall otherwise
expressly consent in writing, which consent may be withheld by Beneficiary in
its sole and absolute discretion, the leasehold estate under the Casino Lease
and any other interest or estate in the Property shall not merge but shall
always remain separate and distinct, notwithstanding any common ownership of the
leasehold estate and any other interest or estate.
(e) Trustor
shall not cause, join in, or suffer to occur any actual or purported
modification, amendment, surrender, or termination of the Casino Lease, and
Trustor shall have no right or power to modify, amend, terminate, or surrender
the Casino Lease, in each case without the prior written consent of Beneficiary,
which consent may be withheld by Beneficiary in its sole and absolute
discretion. Any attempted or purported modification, amendment,
surrender or termination of the Casino Lease without Beneficiary’s prior written
consent shall be null and void and of no force or effect.
(f) Trustor
shall fully perform as and when due each and all of its obligations under the
Casino Lease in accordance with the terms of the Casino Lease, and shall not
cause or suffer to occur any breach or default in any of such obligations, and
shall enforce the obligations of Landlord under the Casino Lease to the end that
Trustor may enjoy all the rights granted under the Casino
Lease. Trustor shall keep and maintain the Casino Lease in full force
and effect. If Trustor shall receive forbearance from Landlord or
otherwise shall be excused from full and timely performance of any of its
obligations under the Casino Lease, the same shall not postpone, excuse,
diminish, or otherwise affect the obligations of Trustor under this
paragraph.
Further,
notwithstanding that certain of Trustor’s obligations under this Deed of Trust
may be similar or identical to certain of Trustor’s obligations under the Casino
Lease, all of Trustor’s obligations under this Deed of Trust are and shall be
separate from and in addition to its obligations under the Casino Lease, and the
inclusion herein of any obligations relating to similar or identical matters as
to which Trustor is obligated under the Casino Lease shall not restrict or limit
Trustor’s obligations to perform promptly all of its obligations as tenant under
the Casino Lease and nothing in this Deed of Trust shall be construed as
requiring Trustor or Beneficiary to take or omit to take any action which would
cause a default under the Casino Lease.
If
Trustor shall have or receive notice or information that compliance with any of
Trustor’s obligations under either this Deed of Trust or the Casino Lease may
constitute or give rise to a breach or default under the other of them, then
Trustor immediately shall notify Beneficiary in writing of the
same. If Beneficiary shall have or receive any such notice or
information, then Beneficiary may (but shall not be obligated to) give written
instructions to Trustor, in which case Trustor shall comply with such
instructions.
(g) If
Trustor shall have or receive any notice or information that (i) any Casino
Lease Default has occurred or may occur, (ii) any litigation or arbitration
proceeding with respect to the Casino Lease has been or may be instituted, (iii)
any action or proceeding to terminate the Casino Lease or to recover possession
of the property covered by the Casino Lease has been or may be instituted, then
Trustor immediately shall notify Beneficiary in writing of the same and
immediately shall deliver to Beneficiary a true and complete copy of each such
notice. Further, Trustor immediately shall furnish to Beneficiary all
information that it may reasonably request concerning the performance by Trustor
or Trustor’s obligations under the Casino Lease.
(h) If
any Casino Lease Default shall occur, or if Beneficiary reasonably believes that
a Casino Lease Default has occurred or may occur, or if Landlord asserts that a
Casino Lease Default has occurred (whether or not Trustor questions or denies
such assertion), then Beneficiary may (but shall not be obligated to) take any
action that Beneficiary deems necessary or desirable, including without
limitation (i) performance or attempted performance of any of Trustor’s
obligations under the Casino Lease, (ii) curing or attempting to cure any
actual or purported Casino Lease Default, (iii) mitigating or attempting to
mitigate any damages or consequences of the same, and (iv) entry upon the
Property for any or all of such purposes. Upon Beneficiary’s request,
Trustor shall submit satisfactory evidence of payment or performance of any of
its obligations under the Casino Lease.
Beneficiary
may pay and expend such sums of money as Beneficiary in its sole discretion
deems necessary or desirable for any such purpose, and Trustor shall pay to
Beneficiary immediately upon demand all such sums so paid or expended by
Beneficiary, together with interest thereon from the date of expenditure at the
rate of interest then applicable to principal at the Default Rate set forth in
Section 2.10(a) of the Credit Agreement.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-16-
(i) [Intentionally
Omitted.]
(j) If
the Casino Lease shall be rejected, canceled, or terminated for any reason
whatsoever, and if Beneficiary or its nominee thereafter or in connection
therewith shall acquire any right, title, interest or estate in or to the
Property (which may include without limitation any new lease of the Property)
then Trustor shall have no right, title, interest or estate in or to such new
lease, or the leasehold estate created by such new lease, or any other interest
of Beneficiary or its nominee in the Property.
(k) Trustor
shall not commence any action or proceeding against Landlord or affecting or
potentially affecting the Casino Lease or Trustor’s or Beneficiary’s interest
therein or in the Property, without the prior written consent of Beneficiary,
which Beneficiary may withhold in its sole and absolute
discretion. Trustor shall notify Beneficiary immediately if any
action or proceeding shall be commenced between Landlord and Trustor, or
affecting or potentially affecting the Casino Lease or Trustor’s or
Beneficiary’s interest therein or in the Property (including without limitation
any case commenced by or against Landlord under Title 11
U.S.C.A. § 101 et seq. and the regulations adopted and promulgated thereto
(as the same may be amended from time to time, the “Bankruptcy
Code”). Beneficiary shall have the option, exercisable upon
notice from Beneficiary to Trustor, to conduct and control any such action or
proceeding with counsel of Beneficiary’s choice. Beneficiary may
proceed in its own name or in the name of Trustor in such action or proceeding,
and Trustor shall cooperate with Beneficiary, comply with the instructions of
Beneficiary (which may include withdrawal or exclusion of Trustor from such
action or proceeding), and execute any and all powers, authorizations, consents
or other documents required by Beneficiary in connection
therewith. Trustor shall indemnify and hold harmless Beneficiary from
and against any and all claims, costs, expenses, attorneys’ fees, losses, and
damages suffered or incurred by Beneficiary in or as a consequence of any such
action or proceeding. Trustor shall pay or reimburse Beneficiary for
any and all of the same, together with interest on any such expenditures by
Beneficiary at the rate of interest then applicable to principal under the
Notes, immediately upon demand by Beneficiary.
(l) Trustor
shall use its best efforts to obtain and deliver to Beneficiary within 20 days
after written request by Beneficiary, an estoppel certificate from Landlord
setting forth (i) that the Casino Lease has not been modified or, if it has been
modified, the date of each modification (together with copies of each such
modification), (ii) the rent payable under the Casino Lease, (iii) the
dates to which all rent and other charges have been paid, (iv) whether
there are any alleged Casino Lease Defaults and, if so, setting forth the nature
thereof in reasonable detail, and (v) such other matters as Beneficiary may
reasonably request.
(m) Notwithstanding
anything to the contrary contained herein, this Deed of Trust shall not
constitute an assignment of the Casino Lease, and Beneficiary shall have no
liability or obligation thereunder by reason of its acceptance of this Deed of
Trust.
(n) Trustor
acknowledges that pursuant to Section 365 of the Bankruptcy Code it is possible
that a trustee in bankruptcy of the Landlord under the Casino Lease, or such
Landlord as a debtor-in-possession, could reject the Casino Lease, in which case
Trustor, as tenant, would have the election described in Section 365(h) of the
Bankruptcy Code (which election, as the same may be amended from time to time,
and together with any comparable right under any other state or federal law
relating to bankruptcy, reorganization or other relief for debtors, whether now
or hereafter in effect, is herein called the “Election”)
to treat the Casino Lease as terminated by such rejection or, in the
alternative, to remain in possession for the balance of the term of the Casino
Lease and any renewal or extension thereof that is enforceable by the tenant
under applicable nonbankruptcy law. Trustor shall not permit the
termination of the Casino Lease by exercise of the Election or otherwise without
the prior written consent of Beneficiary, which consent may be withheld,
conditioned or delayed for any reason in Beneficiary’s sole and absolute
discretion. Trustor acknowledges that since the Casino Lease is
a primary part of the security for the Loans, it is not anticipated that
Beneficiary would consent to termination of the Casino Lease.
In order to secure the covenant made in
this section and as security for the Loans, Trustor assigns the Election and all
rights related thereto to Beneficiary. Trustor acknowledges and
agrees that the foregoing assignment of the Election and related rights is one
of the rights which Beneficiary may use at any time in order to protect and
preserve the other rights and interests of Beneficiary under this Deed of Trust
and the other Loan Documents, since exercise of the Election in favor of
terminating the Casino Lease would constitute waste
hereunder. Trustor agrees that exercise of the Election in favor of
preserving the right to possession under the Casino Lease shall not be deemed to
constitute a taking or sale of the Property by Beneficiary and shall not entitle
Trustor to any credit against the Guaranteed Obligations.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-17-
Trustor acknowledges and agrees that in
the event the Election is exercised in favor of Trustor remaining in possession,
Trustor’s resulting rights under the Casino Lease, as adjusted by the effect of
Section 365 of the Bankruptcy Code, shall then be part of the Property and shall
be subject to the liens created by this Deed of Trust and the other Loan
Documents. The liens in favor of Beneficiary under this Deed of Trust
and the other Loan Documents shall attach to all of Trustor’s rights and
remedies at any time arising under or pursuant to Section 365 of the Bankruptcy
Code, including, without limitation, all of Trustor’s rights to remain in
possession of the Property.
Trustor
hereby appoints Beneficiary as its attorney in fact to act on behalf of Trustor
in connection with all matters relating to or arising out of the assumption or
rejection of any lease affecting the Property, in which the other party to the
lease is a debtor in a case under the Bankruptcy Code. This grant of
power of attorney is present, unconditional, irrevocable, durable and coupled
with an interest.
(o) Trustor
acknowledges and agrees that in any case commenced by or against Trustor under
the Bankruptcy Code, Beneficiary by reason of the liens and rights granted under
this Deed of Trust and the Loan Documents shall have a substantial and material
interest in the treatment and preservation of Trustor’s rights and obligations
under the Casino Lease, and that Trustor shall, in the bankruptcy case, provide
to Beneficiary immediate and continuous adequate protection of such
interests. Trustor and Beneficiary agree that such adequate
protection shall include but shall not necessarily be limited to the
following:
(i) Beneficiary
shall be deemed a party to the Casino Lease (but shall not have any obligations
thereunder) for purposes of Section 365 of the Bankruptcy Code, and shall
have standing to appear and act as a party in interest in relation to any matter
arising out of or related to the Casino Lease or the Property.
(ii) Trustor
shall serve on Beneficiary all notices, pleadings and other documents relating
to or affecting the Casino Lease or the Property. Any notice,
pleading or document served by Trustor on any other party in the bankruptcy case
shall be contemporaneously served by Trustor on Beneficiary, and any notice,
pleading or document served upon or received by Trustor from any other party in
the bankruptcy case shall be served by Trustor on Beneficiary immediately upon
receipt by Trustor.
(iii) Upon
written request of Beneficiary, Trustor shall assume the Casino Lease, and shall
take such steps as are necessary to preserve Trustor’s right to assume the
Casino Lease, including without limitation obtaining extensions of time to
assume or reject the Casino Lease under Subsection 365(d) of the Bankruptcy Code
to the extent it is applicable.
(iv) If
Trustor seeks to reject the Casino Lease pursuant to Section 365(a) of the
Bankruptcy Code, then Trustor shall give Beneficiary not less than ten (10)
days’ prior notice of the date on which Trustor shall apply to the bankruptcy
court for authority to reject the Casino Lease. Beneficiary shall
have the right, but not the obligation, to serve upon Trustor within such 10-day
period a notice stating that (A) Beneficiary demands that Trustor assume and
assign the Casino Lease to Beneficiary pursuant to Section 365 of the Bankruptcy
Code and (B) Beneficiary agrees to cure or provide adequate assurance of prompt
cure of all defaults and provide adequate assurance of future performance under
the Casino Lease. If Beneficiary serves upon Trustor the notice
described in the preceding sentence, Trustor shall not seek to reject the Casino
Lease and shall comply with the demand provided for in clause (A) of the
preceding sentence within thirty (30) days after the notice shall have been
given, subject to the performance by Beneficiary of the agreement provided for
in clause (B) of the preceding sentence.
(v) Effective
upon the entry of an order for relief in respect to Trustor under the Bankruptcy
Code, Trustor hereby assigns to Beneficiary a non-exclusive right to apply to
the bankruptcy court under Section 365(d)(4) of the Bankruptcy Code for an order
extending the period during which the Casino Lease may be rejected or
assumed.
Trustor
shall join with and support any request by Beneficiary to grant and approve the
foregoing as necessary for adequate protection of Beneficiary’s
interests. Notwithstanding the foregoing, Beneficiary may seek
additional terms and conditions, including such economic and monetary
protections as it deems appropriate to adequately protect its interests, and any
request for such additional terms or conditions shall not delay or limit
Beneficiary’s right to receive the specific elements of adequate protection set
forth herein.
Where
reference is made to any code section or other law, the same shall include any
successor statute or provisions of law to the same or substantially the same
effect.
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-18-
(p) Where
reference herein is made to the rights or obligations of Trustor under the
Casino Lease, the same shall refer to all rights and obligations of the original
casino lessee and its successors under the Casino Lease, including all of
Trustor’s predecessors, successors, and assigns in its interest under the Casino
Lease. Where reference herein is made to the rights or obligations of
Landlord under the Casino Lease, the same shall refer to all rights and
obligations of the original casino lessor and its successors under the Casino
Lease, including all of Landlord’s predecessors, successors, and assigns in its
interest under the Casino Lease.
SECTION
37. Trustor’s Waivers.
Trustor hereby waives: (a) any defense based upon any legal
disability or other defense of Borrower, any other Trustor or other Person, or
by reason of the cessation or limitation of the liability of Borrower from any
cause other than full payment of all sums payable under the Notes or any of the
other Loan Documents; (b) any defense based upon any lack of authority of the
officers, directors, partners or agents acting or purporting to act on behalf of
Borrower or any principal of Borrower or any defect in the formation of Borrower
or any principal of Borrower; (c) any defense based upon the application by
Borrower of the proceeds of the Loans for purposes other than the purposes
represented by Borrower to Beneficiary or any Lender or intended or understood
by Beneficiary or any Lender or any Trustor; (d) any defense of any Trustor
based upon Beneficiary’s or any Lender’s election of any remedy against any
Trustor or Borrower or both; (e) any defense based upon Beneficiary’s or any
Lender’s failure to disclose to any Trustor any information concerning
Borrower’s financial condition or any other circumstances bearing on Borrower’s
ability to pay all sums payable under the Notes or any of the other Loan
Documents; (f) any defense based upon any statute or rule of law which provides
that the Obligation of a surety must be neither larger in amount nor in any
other respects more burdensome than that of a principal; (g) any defense based
upon Beneficiary’s or any Lender’s election, in any proceeding instituted under
the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code or any successor statute; (h) any defense based upon any borrowing or any
grant of a security interest under Section 364 of the Bankruptcy Code; (i) any
and all rights and defenses, including, without limitation, any rights of
subrogation, reimbursement, indemnification and contribution, which might
otherwise be available to any Trustor under any applicable laws, any right to
enforce any remedy which Beneficiary or any Lender may have against Borrower and
any right to participate in, or benefit from, any security for the Notes or the
other Loan Documents now or hereafter held by Beneficiary or any Lender; (j)
presentment, demand, protest and notice of any kind; and (k) the benefit of any
statute of limitations affecting the liability of any Trustor hereunder or the
enforcement hereof. Trustor agrees that the payment of all sums payable under
the Credit Agreement, the Notes or any of the other Loan Documents or any part
thereof or other act which tolls any statute of limitations applicable to the
Credit Agreement, the Notes or the other Loan Documents shall similarly operate
to toll the statute of limitations applicable to the Guaranteed
Obligations.
[SIGNATURES
FOLLOW ON NEXT PAGE]
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
-19-
IN
WITNESS WHEREOF, Trustor has executed this Deed of Trust or has caused the same
to be executed by its representatives thereunto duly authorized.
TRUSTOR:
XX
XXXXXXXXXX XX, LLC,
a
Washington limited liability company
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By:
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/s/
Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title:
Manager
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[ACKNOWLEDGEMENTS
ON THE FOLLOWING PAGE]
Signature Page
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
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STATE
OF TEXAS
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)
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) ss.
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COUNTY
OF XXXXXX
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)
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I certify
that I know or have satisfactory evidence that Xxxxxx X. Xxxxxxx is the person
who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated the he was authorized to execute the instrument as
the Manager of XX Xxxxxxxxxx XX, LLC to be the free and voluntary act of such
parties for the uses and purposes mentioned in the instrument.
Dated:
July 20, 2010
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/s/
XxXxxxx X. Xxxxxxx
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Name
Printed: XxXxxxx X. Xxxxxxx
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Notary
Public in and for the State of
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Washington,
residing at 00 Xxxxx Xxxxxx Xxxx, Xxxxx 000X, Xxxxxxx, XX
00000
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My
appointment expires:
1/18/12
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Signature
Page
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
EXHIBIT
A
LEGAL
DESCRIPTION OF REAL ESTATE
PARCEL B
OF CITY OF SHORELINE BOUNDARY LINE ADJUSTMENT NO. SHLA 200301, AS RECORDED UNDER
RECORDING NO. 20030226900036, RECORDS OF KING COUNTY AUDITOR;
SITUATE
IN XXX XXXX XX XXXXXXXXX, XXXXXX XX XXXX, XXXXX OF
WASHINGTON.
Exhibit
A
Leasehold
Deed of Trust – Hollywood Shoreline (Casino)
