EXHIBIT 10.53
EXHIBIT XIII-C
FORM OF NEVADA DEED OF TRUST
Recording requested by:
This Instrument prepared by, and when recorded mail to:
O'Melveny & Xxxxx
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxx Xxxxxx, Esq.
(267,718-007)
(Space above line is for Recorder's use)
DEED OF TRUST, FIXTURE FILING
AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS
NOTICE: THE OBLIGATIONS SECURED HEREBY INCLUDE REVOLVING CREDIT OBLIGATIONS
WHICH PERMIT BORROWING, REPAYMENT AND REBORROWING. INTEREST ON OBLIGATIONS
SECURED HEREBY ACCRUES AT RATES WHICH MAY FLUCTUATE FROM TIME TO TIME. THIS
INSTRUMENT SECURES FUTURE ADVANCES. THIS DEED OF TRUST SHALL BE DEEMED TO BE A
CONSTRUCTION MORTGAGE UNDER NEVADA REVISED STATUTES 104.9313(1)(c).
THIS DEED OF TRUST, FIXTURE FILING AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS (this "Deed of Trust"), made as of the _____ day of
_______________, 1995, by and among ________________________
______________________________, a ________________________, as debtor and
trustor ("Trustor"), ________________________________________, a _______________
corporation, as trustee ("Trustee"), and FIRST INTERSTATE BANK OF NEVADA, N.A.,
as Administrative Agent on behalf of itself and each of the Lenders (as defined
and described hereinbelow), as secured party and beneficiary ("Beneficiary"),
W I T N E S S E T H:
THAT TRUSTOR HEREBY:
Grants, bargains, sells, transfers, conveys and assigns the following
described real property and related collateral to Trustee, IN TRUST, WITH POWER
OF SALE, to have and to hold the same unto Trustee and its successors in
interest, for the benefit of and on behalf of Beneficiary, upon the trusts,
covenants and agreements herein expressed:
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DESCRIPTION OF REAL PROPERTY COLLATERAL
All of the following real property, and the interests of Trustor
therein, situate in the County of Xxxxx, State of Nevada: (i) those certain
parcels of real property leased by Trustor pursuant to, and all of Trustor's
rights under the leasehold estates and other interests arising out of, those
certain lease agreements set forth on Exhibit B attached hereto and incorporated
herein by reference (the "Ground Leases"), as the same may hereafter be amended,
supplemented, extended, renamed or otherwise modified or assigned, which parcels
are more particularly described in Exhibit A-1 attached hereto and incorporated
herein by reference (the "Leased Land"), and (ii) those certain parcels of real
property owned by Trustor and more particularly described on Exhibit A-2
attached hereto and incorporated herein by reference (the "Fee Land"; the Leased
Land and the Fee Land being hereinafter referred to collectively as the "Land");
Together with all right, title and interest of Trustor, now owned or
hereafter acquired, in and to any land lying within the right-of-way of any
street, open or proposed, adjoining any of the Land and any and all sidewalks,
bridges, elevated walkways, tunnels, alleys, strips and gores of land adjacent
to, connecting or used in connection with any of the Land, with appurtenances
("Adjacent Interests");
Together with all buildings, structures and all other improvements and
fixtures that are or may hereafter be erected or placed on or in the Land and
all rights and interests of Trustor in and to all buildings, structures and
other improvements and fixtures that are or may hereafter be erected or placed
on or in Adjacent Interests (collectively, the "Improvements");
Together with all and singular the easements, tenements, hereditaments
and appurtenances belonging or in anywise appertaining to any of the Land,
Adjacent Interests or Improvements (collectively, the "Appurtenances");
Together with all rents, issues, profits, royalties and other income
of or from any of the foregoing or of or from any of the Leases, as hereinafter
defined (collectively, the "Rents"), subject, however, in the case of Rents, to
the absolute assignment given to Beneficiary in Section 12 hereof, to which
Section 12 this grant to the Trustee is subject and subordinate;
Together with any right of Trustor under any Ground Lease to purchase
the fee interest of the lessor thereunder (the "Options");
Together with all leasehold estate, right, title and interest of
Trustor in and to all leases, subleases, licenses, concessions, franchises and
other use or occupancy agreements (excepting, however, agreements made by
Trustor in the ordinary course of business for short-term use by members of the
public of guest rooms and public rooms, including banquet and meeting
facilities, located in the Improvements), and any amendments, modifications,
extensions or renewals thereof (collectively, "Leases") covering any of the
Land, Adjacent Interests, Improvements or Appurtenances, now or hereafter
existing or entered into, and all right, title and interest of Trustor
thereunder, including, without limitation, the right to all security deposits,
advance rentals, other deposits, and all payments of similar nature, relating
thereto;
Together with all water rights and rights to the use of water now or
hereafter appurtenant to or used in connection with any of the Land, Adjacent
Interests, Improvements or Appurtenances ("Water Rights");
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Together with any and all other estate, right, title, interest,
property, possession, claim or demand, in law or in equity, which Trustor now
has or may hereafter acquire in or to any of the Land, Adjacent Interests,
Improvements, Appurtenances, Rents, Options, Leases, Ground Leases, and Water
Rights, or pertaining or appurtenant thereto (including, without limitation, any
fee interest of a lessor under a Ground Lease that may hereafter be acquired
upon Trustor exercising an Option or otherwise acquiring any fee interest of a
lessor under a Ground Lease) and all right, title, and interest of Trustor in
and to the agreements listed on Exhibit C attached hereto and incorporated
herein by reference (the "Development Contracts") and all reversions and
remainders thereof, and all tenements, hereditaments and appurtenances thereunto
belonging or in any wise appertaining thereto ("Other Interests") (said Land,
Adjacent Interests, Improvements, Appurtenances, Rents, Options, Leases, Ground
Leases, Water Rights and Other Interests may be referred to herein as the "Real
Property"); and
THAT TRUSTOR HEREBY:
Grants a security interest, pursuant to the Nevada Uniform Commercial
Code -- Secured Transactions, to Beneficiary, on the terms and provisions (by
this reference incorporated herein with respect to the security interest herein
granted and the rights and obligations of the parties with respect to the
Personal Property, as hereinafter defined, but for no other purpose) set forth
in that certain Subsidiary Security Agreement dated as of even date herewith by
and between Trustor, as Grantor and Debtor, and Beneficiary, as Secured Party
(the "Security Agreement"), in all of the following described personal property,
and the interests of Trustor therein, whether now owned or hereafter acquired
(collectively, the "Personal Property"):
DESCRIPTION OF PERSONAL PROPERTY COLLATERAL
(a) All present and future chattels, furniture, furnishings, goods,
equipment, fixtures and all other tangible personal property, of whatever kind
and nature, now or hereafter used in connection with or placed or located in or
on any part of the Real Property (including, without limitation, any building or
structure that is now or that may hereafter be erected on the Real Property),
including, but not limited to, machinery, materials, goods and equipment now or
hereafter used in the construction or operation of the hotel, casino,
restaurant, entertainment and shopping complex constructed and to be constructed
on the Real Property or portions thereof (the "Project") (including, without
limitation, air conditioning, heating, electrical, lighting, fire fighting and
fire prevention, food and beverage service, laundry, plumbing, refrigeration,
security, sound, signaling, telephone, television, window washing and other
equipment and fixtures, of whatever kind or nature, including generators,
transformers, switching gear, boilers, burners, furnaces, piping, sprinklers,
sinks, tubs, valves, compressors, motors, carts, dumb waiters, elevators and
other lifts, floor coverings, hardware, keys, locks, organs, pianos, planters,
railings, scales, shelving, signs, tools, machinery, molds, dies, drills,
presses, planers, saws, furniture, business fixtures, trade fixtures, electric,
gas and other motor vehicles, uniforms, vacuum cleaners, hotel furniture,
furnishings and equipment, bathroom furniture and furnishings (including towels,
bathmats, hamperettes, shower curtains and other bath linens), beds and bedding
(including mattresses, springs, pillows, bed pads, sheets, blankets, comforters,
spreads and other bed linens and furnishings), bric-a-brac, chairs, chests,
vanities, secretaries, bureaus, chiffonniers, love seats, benches, costumers,
smoking stands, sand jars, desks, dressers, hangings, paintings, pictures,
frames, sculptures, lamps, light bulbs, mirrors, night stands, ornaments,
radios, stereo equipment, sofas, statuary, tables, telephones,
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televisions, vases, window coverings, foodstuffs, beverages (including beer,
wine, liquor and other alcoholic beverages), and other consumables (including
soap, shampoo, cleaning supplies and paper goods), cutlery, cooking, baking and
other kitchen utensils and apparatus (including crockery, fryers, grills,
kettles, mixers, pots, pans, pails, racks, steamers and toasters), china and
other dishes, flatware, glassware, hollowware, serving pieces, trays, table
linens, washers, dryers, irons, ironing boards and other ironing equipment,
cables, outlets, plugs, wiring and related apparatus and fixtures, card readers,
cash registers, adding machines, calculators, computers, keyboards, monitors,
printers, printing equipment, envelopes, stationary, posting machines, blank
forms, typewriters, typewriter stands, other office and accounting equipment and
supplies, time stamps, time recorders, bookkeeping machines, checking machines,
payroll machines, computer reservations systems, equipment used in the operation
of casinos on the Real Property (including but not limited to, gaming devices
and associated equipment (as defined in Nevada Revised Statutes Chapter 463),
including but not limited to, slot machines, cards, poker chips and gaming
tables) and all other goods, equipment, furnishings, apparatus and fixtures that
are now or may hereafter be located at or used at or in connection with the Real
Property) and all other tangible personal property used or to be used at or in
connection with, or placed or to be placed in, rooms, halls, lounges, offices,
lobbies, lavatories, basements, cellars, vaults or other portions of the Project
or of any other building or buildings hereafter constructed or erected thereon,
whether herein enumerated or not, and whether or not contained in any such
building, and which are used or to be used or useful in the operation and
maintenance thereof, or in any bar, casino, hotel, restaurant, store, health
spa, salon or other business conducted thereon, together with all replacements
and substitutions for any and all personal property in which Trustor has an
interest, including without limitation such goods and equipment as shall from
time to time be located, placed, installed or used in or upon, or procured for
use, or to be used or useful in connection with the operation of the whole, or
any part of, the Project and all parts thereof and all accessions thereto;
(b) All present and future goods, including, without limitation, all
consumer goods, inventory, equipment, and other supplies, of whatever kind or
nature, and any and all other goods, wherever located, used or to be used in
connection with or in the conduct of Trustor's business;
(c) All present and future inventory and merchandise in all of its
forms (including, but not limited to, (i) all goods held by Trustor for sale or
lease or to be furnished under contracts of service or so leased or furnished,
(ii) all raw materials, work in process, finished goods, and materials used or
consumed in the manufacture, packing, shipping, advertising, selling, leasing,
furnishing or production of such inventory or otherwise used or consumed in
Trustor's business, (iii) all goods in which Trustor has an interest in mass or
a joint or other interest or right of any kind, (iv) all goods that are returned
to or repossessed by Trustor, and (v) all packing materials, supplies and
containers relating to or used in connection with any of the foregoing, and all
accessions thereto and products thereof and all negotiable documents of title
(including without limitation warehouse receipts, dock receipts and bills of
lading) issued by any person covering any of the foregoing;
(d) All present and future accounts, accounts receivable, rentals,
revenues, receipts and income of any other nature derived from or received with
respect to rooms, banquet facilities, convention facilities, retail premises,
bars, restaurants, casinos, parking lots and garages and any other facilities on
the Real Property and services and amenities provided in connection therewith,
agreements, contracts, leases, contract rights, rights to payment, instruments,
documents, chattel paper, security agreements, guaranties, undertakings, surety
bonds, insurance policies, condemnation deposits and awards, notes and drafts,
securities, certificates of deposit and the right to receive all payments
thereon or
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in respect thereof (whether principal, interest, fees or otherwise), contract
rights (other than rights under contracts or governmental permits that may not
be transferred by law), including, without limitation, rights to all deposits
from tenants and other users of the Project, rights under all contracts relating
to the construction, renovation or restoration of any of the improvements now or
hereafter located on the Real Property or the financing thereof, all rights
under payment or performance bonds, and all rights under the Development
Contracts, warranties, guaranties and the Options, and all rights to payment
from any credit/charge card organization or entity such as or similar to, and
including, without limitation, the organizations or entities that sponsor and
administer, respectively, the American Express Card, the Xxxxx Xxxxxxx Card, the
Diners Club Card, the Discover Card, the MasterCard and the Visa Card, books of
account, and principal, interest and payments due on account of goods sold,
services rendered, loans made or credit extended, on or in connection with the
Project and all forms of obligations owing to and rights of Trustor or in which
Trustor may have any interest, however created or arising;
(e) All present and future general intangibles (including but not
limited to all governmental permits relating to construction or other activities
on the premises), the Options, all tax refunds of every kind and nature to which
Trustor now or hereafter may become entitled, however arising, all other
refunds, and all deposits, goodwill, choses in action, rights to payment or
performance, gambling debts or gaming debts owed to Trustor by Trustor's patrons
(whether or not evidenced by a note), judgments taken on any rights or claims
included in the Property (as hereinafter defined), trade secrets, computer
programs, software, customer lists, business names, trademarks, trade names and
service marks (including, but not limited to: "____________________________" and
any derivation thereof, including any and all state and federal applications and
registrations thereof), patents, patent applications, licenses, copyrights,
technology, processes, proprietary information and insurance proceeds;
(f) All present and future deposit accounts of Trustor, including,
without limitation, [the _______________________________ Account maintained at
the office of Beneficiary,] any demand, time, savings, passbook or like account
maintained by Trustor with any bank, savings and loan association, credit union
or like organization, and all money, cash and cash equivalents of Trustor,
whether or not deposited in any such deposit account;
(g) All present and future books and records, including, without
limitation, books of account and ledgers of every kind and nature, ledger cards,
computer programs, tapes, disks and other information storage devices, all
related data processing software, and all electronically recorded data relating
to Trustor or its business or the Project, all receptacles and containers for
such records, and all files and correspondence;
(h) All present and future stocks, bonds, debentures, securities,
subscription rights, options, warrants, puts, calls, certificates, partnership
interests, joint venture interests, investments, brokerage accounts and all
rights, preferences, privileges, dividends, distributions, redemption payments
and liquidation payments received or receivable with respect thereto;
(i) All present and future right, title and interest of Trustor in and
to all Leases, whether or not specifically herein described, that now or may
hereafter pertain to or affect the Real Property or any portion thereof, and all
amendments to the same, including, but not limited to, the following: (aa) all
payments due and to become due under such Leases and Ground Leases, whether as
rent, damages, insurance payments, condemnation awards, or otherwise; (bb) all
claims, rights, powers,
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privileges and remedies under such Leases and Ground Leases; and (cc) all rights
of the Trustor under such Leases and Ground Leases to exercise any election or
option (including, without limitation, the Options), or to give or receive any
notice, consent, waiver or approval, or to accept any surrender of the premises
or any part thereof, together with full power and authority in the name of the
Trustor, or otherwise, to demand and receive, enforce, collect, and receipt for
any or all of the foregoing, to endorse or execute any checks or any instruments
or orders, to file any claims, and to take any other action that Beneficiary may
deem necessary or advisable in connection therewith;
(j) All present and future maps, plans, specifications, surveys,
studies, reports, data and drawings (including, without limitation,
architectural, structural, mechanical and engineering plans and specifications,
studies, data and drawings) prepared for or relating to the development of the
Project or the construction, renovation or restoration of any improvements on
the Real Property or the extraction of minerals, sand, gravel or other valuable
substances from the Real Property, together with all amendments and
modifications thereto;
(k) All present and future licenses, permits, variances, special
permits, franchises, certificates, rulings, certifications, validations,
exemptions, filings, registrations, authorizations, consents, approvals,
waivers, orders, rights and agreements (including options, option rights and
contract rights), other than those (including non-transferable gaming permits)
that may not be transferred by law, now or hereafter obtained by Trustor from
any governmental authority having or claiming jurisdiction over the Project, the
Real Property or any other element of the Property or providing access thereto,
or the operation of any business on, at, or from the Project;
(l) All present and future accessions, appurtenances, components,
repairs, repair parts, spare parts, replacements, substitutions, additions,
issue and improvements to or of or with respect to any of the foregoing;
(m) All other fixtures and storage and office facilities, and all
accessions thereto and products thereof and all water stock relating to the Real
Property;
(n) All other tangible and intangible personal property of Trustor;
(o) All rights, remedies, powers and privileges of Trustor with
respect to any of the foregoing; and
(p) Any and all proceeds, products, rents, income and profits of any
of the foregoing, including, without limitation, all money, accounts, general
intangibles, deposit accounts, documents, instruments, chattel paper, goods,
insurance proceeds (whether or not the Beneficiary is the loss payee), and any
other tangible or intangible property received upon the sale or disposition of
any of the foregoing (it being agreed, for purposes hereof, that the term
"proceeds" includes whatever is receivable or received when any of the Property
is sold, collected, exchanged or otherwise disposed of, whether such disposition
is voluntary or involuntary)
(The Real Property, the Personal Property and all of the other
collateral described above may hereinafter be collectively referred to as the
"Property".)
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FOR THE PURPOSE OF SECURING:
First: Payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including payment of
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. 362(a)), of all obligations and
liabilities of every nature of Trustor now or hereafter existing under or
arising out of or in connection with that certain Guaranty of even date herewith
executed by Trustor (and others) in favor of Beneficiary (as the same may be
amended, modified or supplemented from time to time, the "Guaranty"). The
Guaranty guaranties the obligations of Players International, Inc., a Nevada
corporation ("Borrower") under that certain Credit Agreement executed
concurrently herewith by Borrower, First Interstate Bank of Nevada, N.A., and
Bankers Trust Company, as Managing Agents, BT Securities Corporation, as a
Co-Arranger, and the Lenders listed therein as lenders (the "Lenders") and First
Interstate Bank of Nevada, N.A., as a Co-Arranger and Administrative Agent,
together with any and all renewals, extensions, amendments, modifications,
rearrangements, replacements, restatements, substitutions and addendums thereof
or thereto (herein referred to as the "Credit Agreement"), and the promissory
notes issued to the Lenders to evidence such obligations and liabilities,
together with any and all renewals, extensions, amendments, modifications,
rearrangements, replacements, restatements, substitutions and addendums thereof
or thereto (herein referred to as the "Notes"), whether for principal in the
amount of One Hundred Twenty Million Dollars ($120,000,000) or such principal
amount as may be advanced and remain unpaid or for interest (including, without
limitation, interest that, but for the filing of a petition in bankruptcy with
respect to Trustor, would accrue on such obligations), reimbursement of amounts
drawn under letters of credit, fees, expenses, indemnities or otherwise, whether
voluntary or involuntary, direct or indirect, absolute or contingent, liquidated
or unliquidated, whether or not jointly owed with others, and whether or not
from time to time decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from Beneficiary or any such Lender as a preference,
fraudulent transfer or otherwise.
Second: Payment and performance of every obligation, covenant, promise
and agreement of Trustor herein contained (excepting, however, the obligations
of Trustor under Section 5(c) hereof), or incorporated herein by reference,
including any sums paid or advanced by Beneficiary or Trustee pursuant to the
terms hereof.
Third: Payment of the expenses and costs incurred or paid by
Beneficiary in the preservation and enforcement of the rights and remedies of
Beneficiary and the duties and liabilities of Trustor hereunder, including, but
not by way of limitation, attorneys' fees, court costs, witness fees, expert
witness fees, collection costs, Trustee's fees and costs of a Trustee's Sale
Guarantee, and costs and expenses paid by Beneficiary in performing for
Trustor's account any obligation of Trustor.
Fourth: Payment of additional sums and interest thereon which may
hereafter be loaned to Trustor by the Lenders when evidenced by a promissory
note or notes or other agreement between Trustor and the Lenders that recites
that this Deed of Trust is security therefor.
Fifth: Performance of every obligation, warranty, representation,
covenant, agreement and promise of Trustor contained in the Guaranty.
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The foregoing are described herein as the "Secured Obligations". All
persons who may have or acquire an interest in all or any part of the Property
will be considered to have notice of, and will be bound by, the terms of the
Secured Obligations and each other agreement or instrument made or entered into
in connection with each of the Secured Obligations. Such terms include any
provisions in the Notes or the Credit Agreement which permit borrowing,
repayment and reborrowing, or the making of future advances, or which provide
that the interest rate on one or more of the Secured Obligations may vary from
time to time.
THIS DEED OF TRUST FURTHER WITNESSETH THAT, IN CONNECTION WITH AND IN
FURTHERANCE OF THE FOREGOING GRANTS, AND THE ENCUMBRANCES, LIENS AND SECURITY
INTERESTS CREATED THEREBY, TRUSTOR COVENANTS AND AGREES AS FOLLOWS:
1. Certain Representations and Warranties of Trustor. Trustor
represents, warrants and covenants that, except as previously disclosed to
Beneficiary in a writing making reference to this Section 1:
(a) Trustor lawfully possesses and holds fee simple absolute
title to all of the Fee Land and Improvements;
(b) Trustor lawfully possesses and holds leasehold title as
lessee under the Ground Leases to all of the Leased Land and Improvements;
(c) Trustor has or will have good title to all Property other
than the Land and Improvements;
(d) Trustor has the full and unlimited power, right and authority
to encumber the Property and assign the Rents;
(e) This Deed of Trust creates a first priority lien on the
Property;
(f) The Property includes all property and rights which may be
reasonably necessary to promote the present and any reasonable future
beneficial use and enjoyment of the Land, the Improvements and the Project;
(g) Trustor owns the Personal Property free and clear of any
security agreements, reservations of title or conditional sales contracts
and there is no financing statement affecting the Personal Property on file
in any public office other than one filed to perfect the Security Interest
herein granted; and
(h) Trustor's place of business, or its chief executive office if
it has more than one place of business, is located at the address of
Trustor specified in the Guaranty.
2. Payment of Obligations. Trustor shall pay when due the Secured
Obligations under the Guaranty and hereunder; the principal of and interest on
any future advances secured by this Deed of Trust; and the principal of and
interest on any other indebtedness guaranteed by the Guaranty or
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otherwise secured by this Deed of Trust.
3. Compliance with Laws. Trustor shall not commit, suffer or permit
any act to be done, or condition to exist, on, or with respect to, the Property
which violates or is prohibited by any law, statute, code, act, ordinance,
order, judgment, decree, injunction, rule, regulation, permit, license,
authorization or direction of any government or subdivision thereof, whether it
be federal, state, county or municipal (collectively, the "Legal Requirements"),
which is applicable to the Property, or any part thereof, now or at any time
hereafter.
4. Maintenance of Property. Trustor agrees: (a) properly to care for
and keep the Property in good condition and repair; (b) not to remove, demolish
or substantially alter any building on the Real Property except upon the prior
written consent of Beneficiary; (c) to complete promptly and in a good and
workmanlike manner any building or other improvement which may be constructed
thereon, to restore promptly in like manner any portion of the Improvements
which may be damaged or destroyed from any cause whatsoever, and to pay when due
all claims for labor performed and materials furnished therefor; (d) to comply
with all Legal Requirements and covenants, conditions and restrictions now or
hereafter affecting the Property or any part thereof, including any which
require alteration or improvement thereof, and with all requirements of
insurance companies insuring the Property or any portion thereof and of any
bureau or agency which establishes standards of insurability; (e) not to commit
or permit any waste or deterioration of the Property; (f) to keep and maintain
abutting grounds, sidewalks, roads, parking and landscaped areas in good and
neat order and repair; (g) not to apply for, willingly suffer or permit any
change in zoning, subdivision, or land use regulations affecting the Property
without the prior written consent of Beneficiary; (h) not to drill or extract or
enter into any lease for the drilling for or extraction of oil, gas or other
hydrocarbon substances or any mineral of any kind or character on or from the
Property or any part thereof without the prior written consent of Beneficiary;
and (i) to do all other acts, in a timely and proper manner, which, from the
character or use of the Property, may be reasonably necessary to maintain and
preserve its value, the specific enumerations herein not excluding the general.
5. Environmental Obligations.
(a) Trustor shall comply with any and all Environmental Laws (as
hereinafter defined) regarding the presence or removal of Hazardous Material on
or in the Property, shall pay immediately, when due, the costs of removal from
the Property and disposal of any Hazardous Material which is required to be
removed pursuant to any Environmental Laws and shall keep the Property free of
any lien which may arise pursuant to any such Environmental Laws. Trustor shall
not, and shall not permit any person or entity to release, discharge, or dispose
of any Hazardous Material on the Real Property except in compliance with all
Environmental Laws and, if the same shall exist, Trustor shall immediately
remove or cause to be removed from the Real Property such Hazardous Material to
the extent required to be removed pursuant to any Environmental Laws.
(b) As used herein, the term "Hazardous Material" shall means: (i) any
chemical, material or substance at any time defined as or included in the
definition of "hazardous substances", "hazardous materials", hazardous wastes",
"extremely hazardous waste", "restricted hazardous waste", "infectious waste",
"toxic substances" or any other formulations intended to define, list or
classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar import under any
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applicable Environmental Law or publication promulgated pursuant thereto; (ii)
any oil, petroleum, petroleum fraction or petroleum derived substance; (iii) any
drilling fluids, produced waters or other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources; (iv) any flammable substances or explosives; (v) any radioactive
materials; (vi) asbestos in any form; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing poly-chlorinated biphenyls in excess of fifty parts per million; (ix)
pesticides; (x) all hazardous substances defined in NRS 40.504 ("NRS" means
Nevada Revised Statutes), and (xi) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority or which may or could pose a hazard to human health or safety or the
environment if released into the workplace or the environment; the term
"Environmental Law" means all statutes, ordinances, orders, rules, regulations,
plans, policies or decrees and the like relating to: (aa) environmental matters,
including, without limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or injuries resulting
from the Release or threatened Release of Hazardous Material, (bb) the
generation, use, storage, transportation or disposal of Hazardous Materials, or
(cc) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to any of the Property, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. 9601 et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42
U.S.C. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601 et seq.),
the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.),
the Occupational Safety and Health Act (29 U.S.C. 651 et seq.) and the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. 11001 et seq.), each as
amended and supplemented, and any analogous future or present local, state and
federal statutes, ordinances and other laws, and rules and regulations
promulgated pursuant thereto, each as in effect as of the date of determination;
and the term "Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, dispersal, discharge, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), or into or out of any of the Property, including the movement of any
Hazardous Material through the air, soil, surface water, groundwater or
property.
(c) Trustor hereby agrees to indemnify, hold harmless and defend
Beneficiary, its directors, officers, employees, agents, successors and assigns
from and against any and all claims, losses, damages, demands, liabilities,
fines, penalties, assessments, charges, administrative and judicial proceedings
and orders, judgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including but
not limited to attorneys' and consultants' fees and expenses), arising directly
or indirectly, in whole or in part, out of (i) the presence on or under the
Property of any Hazardous Material, or any Release of any Hazardous Material on,
under or from the Property, or (b) any activity carried on or undertaken on or
off the Property until the Secured Obligations have been fully and finally
satisfied, and whether by Trustor or any employees, agents, contractors or
subcontractors of Trustor or any third persons occupying or present on the
Property, in connection with the use, holding, handling, treatment, removal,
storage, decontamination, cleanup, transport, Release, processing or abatement
of any Hazardous Material located or present in, on or under the Property. The
foregoing indemnity shall further apply to any residual contamination in, on or
under the Property, or affecting any natural resources, and to any contamination
of any property or natural resources arising in connection with the generation,
use, handling, storage, transport or disposal
10
of any such Hazardous Material, and irrespective of whether any of such
activities are undertaken in accordance with applicable Environmental Laws.
Trustor hereby acknowledges and agrees that, notwithstanding any other provision
of this Deed of Trust to the contrary, the obligations of Trustor under this
Section 5(c) shall be unlimited personal obligations of Trustor, shall not be
secured by this Deed of Trust and shall survive any foreclosure under this Deed
of Trust, any transfer in lieu thereof, and any satisfaction of the Secured
Obligations. The defense to be provided under this Section 5(c) shall be
conducted by counsel reasonably satisfactory to Beneficiary; provided however,
that Beneficiary shall have the right to be represented by advisory counsel of
its own selection and at its own expense; and provided further, that Beneficiary
may appoint its own counsel, at Trustor's sole cost and expense, if Trustor
fails to assume promptly any obligations under this Section 5(c) (and in any
event within ten (10) days of being notified of the existence of a claim) or if
different, additional, or inconsistent defenses exist from those available to
Trustor with respect to any claim for which the indemnity in this Section 5(a)
is implicated.
6. Insurance.
(a) Types and Amounts Required. During the continuance of this Trust,
Trustor shall at all times provide, maintain and keep in force, at no expense to
Trustee or Beneficiary, for the benefit of Trustor and Beneficiary, as their
respective interests may appear, the following policies of insurance:
(i) During the course of any construction or repair of Improvements
on the Property, (x) builder's completed value risk insurance against "all
risks of physical loss" (including fire and extended coverage, and
endorsements extending coverage for vandalism and malicious mischief,
collapse and property in transit, offsite storage, delay of opening
(business interruption), demolition and debris removal, flood, and, if
reasonably available, earthquake), in non-reporting form, covering 100% of
the anticipated construction cost, including "soft costs," with not more
than $100,000 deductible from the loss payable for any casualty and no more
than thirty (30) days for delay of opening; said policy to contain a
"permission to occupy upon completion of work or occupancy" endorsement and
waiver of subrogation endorsement acceptable to Beneficiary, and
replacement cost coverage in an agreed amount, and (y) an "owner/contractor
protective liability" policy, providing separate liability coverage for
Trustor and Beneficiary, with a limit of not less than $5,000,000;
(ii) Insurance against loss or damage to the Improvements and
Personal Property by fire and any of the other risks covered by insurance
of the type now known as "all risks of physical loss" (including flood,
and, if reasonably available, earthquake coverage (the sublimit for flood
and earthquake insurance shall be no less than $10,000,000)) in an amount
not less than 100% of the then replacement cost of the Improvements and
Personal Property (exclusive of the cost of excavations, pilings,
foundations, footings and other underground improvements lying below the
lowest basement level) without deduction for physical depreciation; with an
Agreed Amount endorsement (waiving co-insurance), a Replacement Cost
Valuation endorsement, a waiver of subrogation endorsement, coverage for
the cost of removing damaged property, and, if Beneficiary shall so
require, coverage for demolition and increased cost of construction
occasioned by operation of any law or ordinance regulating the
construction, use or repair of the Improvements; and with not more than
$350,000 deductible per occurrence and $500,000 for the perils of flood and
earthquake, if a sub-deductible applies;
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(iii) Mechanical breakdown insurance (also known as "boiler and
machinery" insurance) covering pressure vessels, air tanks, boilers,
machinery, pressure piping, heating, air conditioning and elevator
equipment and escalator equipment, if the Improvements contain equipment of
such nature, and insurance against loss of occupancy or use arising from
any such breakdown, written on a comprehensive form with a combined direct
and indirect limit of $25,000,000; the policy shall include an Agreed
Amount endorsement (waiving co-insurance), a Replacement Cost Valuation
endorsement, and coverage for increased cost of construction occasioned by
operation of any law or ordinance regulating the construction, use or
repair of the Improvements; the policy may contain deductibles of no
greater than $100,000 for direct damage and seventy-two hours or the
average value of receipts for three (3) days, whichever is less, for
indirect loss;
(iv) Commercial general liability insurance (1988 Form or subsequent
revisions of the same), written on an "occurrence basis," against claims
for death, bodily injury, personal injury and property damage occurring in,
on or about the Real Property or the adjoining streets, sidewalks and
passageways, or arising from or connected with the use, conduct or
operation of Trustor's business or interest (including, without limitation,
products liability coverage; blanket contractual liability coverage,
including both oral and written contracts; broad form property damage
coverage; coverage against liability for injury or property damage arising
out of the use, by or on behalf of the Trustor or any other person or
organization, of any owned, non-owned, leased or hired automotive equipment
in the conduct of any and all operations of Trustor; coverage for "liquor
legal liability," and "employee benefits legal liability;" coverage for all
professional liability exposures associated with the operation of the
health spa; coverage for those hazards commonly known in the insurance
industry as explosion, collapse and underground property damage; owners'
and contractors' protective coverage; coverage for elevators, escalators
and garage/parking operations, if any, on the Real Property; if such policy
contains a self-insured retention, (A) such self-insured retention shall be
no greater than $250,000 per occurrence, and (B) Trustor shall be solely
responsible for the payment of all amounts due within said self-insured
retention, and the indemnification provisions contained in this Deed of
Trust shall include all liability associated with said self-insured
retention;
(v) Comprehensive business automobile liability insurance, written
under Coverage Symbol "1," covering all owned, non-owned and hired or
borrowed vehicles of Trustor used in connection with any of the
construction, maintenance and operation of the Improvements, naming Trustor
as the named insured and covering Beneficiary as additional insured,
insuring against liability for bodily injury and death and/or for property
damage in an amount not less than $1,000,000 combined single limit per
accident; (if the policy contains a self-insured retention, (A) such
self-insured retention shall be no greater than $250,000 per occurrence,
and (B) Trustor shall be solely responsible for the payment of all amounts
due within said self-insured retention, and the indemnification provisions
contained in this Deed of Trust shall include all liability associated with
said self-insured retention); in addition to said automobile liability
insurance, Trustor must provide, maintain and keep in effect (x) garage
liability insurance, providing $1,000,000 combined single limit for bodily
injury and property damage for the parking garage operation, and (y)
garagekeepers legal liability insurance, providing $500,000 limit for
comprehensive and collision coverages for physical damage to vehicles in
Trustor's care, custody and control, with a deductible no greater than
$25,000 for each loss;
12
(vi) A standard Worker's Compensation policy covering the State of
Nevada and Employer's Liability coverage subject to a limit of no less than
$1,000,000 for each employee, $1,000,000 for each accident, and a
$1,000,000 policy limit, which policy shall include endorsements for
Voluntary Compensation and Employer's Liability Coverage and Stop Gap
Liability; if Trustor elects to self-insure Worker's Compensation coverage
in the State of Nevada, Beneficiary must be furnished with a copy of the
certificate from the state permitting self insurance and evidence of a stop
loss/aggregate Excess Worker's Compensation policy with a specific
retention of no greater than $300,000 per occurrence;
(vii) An Umbrella Liability policy with a limit of no less than
$100,000,000 providing excess coverage over all limits and coverages set
forth in paragraphs (iv), (v) and (vi) above, which limits can be obtained
by a combination of Primary and Excess Umbrella policies, provided that all
layers follow form with the underlying policies set forth in paragraphs
(iv), (v) and (vi) and are written on an "occurrence form;"
(viii) Business interruption insurance/extra expense and loss of
"rental value" insurance, including coverage for off-premises power losses
and an extended period of indemnity endorsement for at least 180 days, in
an amount representing not less than 100% percent of the annual net profit
plus continuing expenses (including debt service) for the Project, as such
net profit and continuing expenses are reasonably projected by Trustor and
consented to by Beneficiary (or, in the absence of such a projection, as
reasonably projected by Beneficiary), with a deductible of no greater than
seventy-two (72) hours or the average value of receipts for three (3) days,
whichever is less.
(ix) If the Property is located in an area identified by the
Secretary of Housing and Urban Development as a flood hazard area and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968, flood insurance covering the Improvements, in an
amount, available under the Act, satisfactory to Beneficiary;
(x) A comprehensive crime policy, including the following
coverages: (A) Employee Dishonesty: $2,500,000; (B) Money & Securities
(inside): $500,000; (C) Money & Securities (outside): $500,000; (D)
Depositors Forgery: $1,000,000; and (E) Computer Fraud: $1,000,000; such
policy shall be amended so that the term "money" is defined therein to
include "chips," the policy may contain deductibles of no more than
$250,000 for all other agreements listed above; and
(xi) Such other insurance and in such amounts, and such additional
amounts of the foregoing insurance, as may reasonably be required by
Beneficiary, in its sole discretion, from time to time, due consideration
being given to standard practices in the industry and to the risks involved
in Trustor's business, operations or interest.
(b) Uniform Policy Requirements. All policies of insurance required by
the terms of this Deed of Trust:
(i) shall be issued by insurance companies licensed and admitted to
do
13
business in the State of Nevada, and rated no lower than A-XII in the most
recent edition of A.M. Best's and AA in the most recent edition of Standard
& Poor's, and in such form and amounts as are satisfactory to Beneficiary
from time to time;
(ii) shall contain an endorsement or agreement by the insurer that
any loss shall be payable in accordance with the terms of such policy
notwithstanding any act, failure to act, negligence or breach of
representation or warranty of Trustor, or of any party holding under
Trustor, which might otherwise result in forfeiture of said insurance;
(iii) shall contain a waiver by the insurer of all rights of setoff,
counterclaim and deduction against Trustor;
(iv) shall contain a waiver of subrogation by the insurer in favor
of Beneficiary and a clause providing that the policy is primary and that
any other insurance of Beneficiary with respect to the matters covered by
such policy shall be excess and non-contributing;
(v) shall, in the case of policies affording liability insurance
coverage, name Beneficiary (and Beneficiary's officers, directors,
employees, agents and representatives) as additional insured by an
endorsement satisfactory to Beneficiary and contain cross-liability and
severability of interest clauses satisfactory to Beneficiary, and, in the
case of other policies, shall name Beneficiary as a loss payee and have
attached thereto a lender's loss payable endorsement, for the benefit of
Beneficiary, in form satisfactory to Beneficiary (Form 438 BFU, unless
otherwise specified by Beneficiary); and
(vi) shall contain a provision that, notwithstanding any contrary
agreement between Trustor and insurance company, such policies will not be
canceled, fail to be renewed or materially amended (which term shall
include any reduction in the type, scope or limits of coverage) without at
least thirty (30) days prior written notice to Beneficiary.
(c) Blanket and Umbrella Policies. If Beneficiary consents, Trustor or
Borrower may provide any of the required insurance through an umbrella policy or
policies or through blanket policies carried by Trustor and covering more than
one location, or by policies procured by a tenant or other party holding under
Trustor; provided, however, that the amount of the total insurance allocated to
the Real Property and available with respect to occurrences required to be
insured against shall be such as to furnish protection the equivalent of
separate policies in the amounts herein required, and provided further, that, in
all other respects, any such policy or policies shall comply with all of the
other provisions of this Deed of Trust.
(d) Evidence of Insurance. At Beneficiary's option, Trustor shall
furnish Beneficiary with certified copies of all policies of insurance required
under this Section or with a certificate of insurance for each required policy
setting forth the coverage, the limits of liability, the deductibles, if any,
the name of the carrier, the policy number, and the period of coverage, which
certificates shall be executed by authorized officials of the companies issuing
such insurance, or by agents or attorneys-in-fact authorized to issue said
certificates (in which event each such certificate shall be accompanied by a
notarized affidavit, agency agreement or power of attorney evidencing the
authority of the signatory to issue such certificate on behalf of the insurer
named therein). Trustor shall furnish to Beneficiary annually, within ten days
after the date hereof, or more often if Beneficiary shall so request,
14
a certificate of Trustor specifying all insurance policies with respect to the
Property and all other policies required hereby then outstanding and in force,
and stating whether or not such insurance complies with the requirements of this
Section and, if it does not, the manner in which it does not comply. At least
ten (10) days prior to the expiration of each required policy, Trustor shall
deliver to Beneficiary evidence satisfactory to Beneficiary of the payment of
premium and the renewal or replacement of such policy continuing insurance in
force as required by this Deed of Trust.
(e) Procurement by Beneficiary. If Trustor fails to provide, maintain,
keep in force or deliver to Beneficiary the policies of insurance required by
this Deed of Trust, Beneficiary may (but shall have no obligation to) procure
such insurance, or single interest insurance for such risks covering
Beneficiary's interests, and Trustor will pay all premiums therefor promptly
upon demand by Beneficiary; and until such payment is made by Trustor, the
amount of all such premiums, together with interest thereon at an annual rate
equal to the rate specified in Section 2.2E. (Post-Default Interest) of the
Credit Agreement (or if such provision is hereafter replaced or renumbered, the
equivalent section) (the "Agreed Rate"), shall be secured by this Deed of Trust.
(f) Reserve Fund. Upon request by Beneficiary following an Event of
Default (as defined in Section 23 hereof), Trustor shall pay to Beneficiary an
initial cash reserve in an amount adequate to pay all insurance premiums due
within the next succeeding twelve calendar months on all policies of insurance
required by this Deed of Trust (or such lesser amount as may then be specified
by Beneficiary), and shall thereafter deposit with Beneficiary each month,
commencing with the first month after such request by Beneficiary and continuing
until all sums secured hereby are paid in full or Beneficiary notifies Trustor
to cease making such deposits, an amount equal to one-twelfth of the aggregate
annual insurance premiums on all policies of insurance required by this Deed of
Trust, as reasonably estimated by Beneficiary. In such event Trustor further
agrees to cause all bills, statements or other documents relating to the
foregoing insurance premiums to be sent or mailed directly to Beneficiary. Upon
receipt of such bills, statements or other documents evidencing that a premium
for a required policy is then payable, and providing Trustor has deposited
sufficient funds with Beneficiary pursuant to this Section, Beneficiary shall
pay such amounts as may be due thereunder out of the funds so deposited with
Beneficiary. If at any time and for any reason the funds deposited with
Beneficiary are or will be insufficient to pay such amounts as may be then or
subsequently due, Beneficiary may notify Trustor and Trustor shall immediately
deposit an amount equal to such deficiency with Beneficiary. Notwithstanding the
foregoing, nothing contained herein shall cause Beneficiary to be deemed a
trustee of said funds or to be obligated to pay any amounts in excess of the
amount of funds deposited with Beneficiary pursuant to this Section, nor shall
anything contained herein modify the obligation of Trustor to maintain and keep
in force at all times such insurance as is required by this Deed of Trust.
Beneficiary may commingle said reserve with its own funds and Trustor shall be
entitled to no interest thereon. Trustor hereby waives the provisions of NRS
106.105 and 100.091 to the maximum extent permitted by law.
(g) Replacement Cost. Whenever Beneficiary requires insurance with
full replacement cost protection, such full replacement cost shall be determined
annually (except in the event of substantial changes, alterations or additions
to the Improvements or in the event of new construction undertaken by the
Trustor, in which event such full replacement cost shall be determined from time
to time as required to assure full replacement cost coverage). Such
determination of full replacement cost shall be made by written agreement of the
insurance carrier and Trustor, subject to the approval of Beneficiary. If they
cannot agree or the value shall not be approved by Beneficiary within thirty
(30)
15
days after such request, such full replacement cost shall be determined by
an appraiser, architect or contractor who shall be acceptable to Beneficiary. No
omission on the part of Beneficiary to request any such determination shall
relieve Trustor of its obligations hereunder, and any such determination to the
contrary notwithstanding, Beneficiary may require Trustor to obtain additional
insurance as provided in this Section.
(h) Separate Insurance. Trustor shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required by
this Section to be furnished by Trustor unless Beneficiary is a named insured
therein, with loss payable as provided herein. Trustor shall immediately notify
Beneficiary of the taking out of any such separate insurance and shall cause the
original policies in respect thereof or certificates therefor to be delivered to
Beneficiary.
(i) Compliance with Insurance Requirements. Trustor shall observe and
comply with the requirements of all policies of insurance required to be
maintained in accordance with this Deed of Trust and shall cause the
requirements of the companies writing such policies to be so performed and
satisfied that at all times companies of good standing satisfactory to
Beneficiary shall be willing to write and to continue such insurance.
Notwithstanding any approval, disapproval, acceptance or acquiescence by
Beneficiary with respect to such insurance, or Beneficiary's obtaining or
failure to obtain any insurance, Beneficiary shall incur no liability as to the
form or legal sufficiency of insurance contracts, the solvency of any insurer or
the payment of any loss, and Trustor hereby expressly assumes full
responsibility therefor.
(j) Assignment of Policies upon Foreclosure. In the event of
foreclosure of this Deed of Trust or other transfer of title or assignment of
any of the Property in extinguishment, in whole or in part, of the debt
guaranteed by the Guaranty and secured hereby, all right, title and interest of
Trustor in and to all policies of insurance required by this Section with
respect to such Property and any unearned premiums paid thereon shall, without
further act, be assigned to and shall inure to the benefit of and pass to the
successor in interest to Trustor or the purchaser or grantee of the Property,
and Trustor hereby appoints Beneficiary its lawful attorney-in-fact to execute
an assignment thereof and any other document necessary to effect such transfer.
(k) Waiver of Subrogation. Trustor waives any and all right to claim
or recover against Beneficiary, its directors, officers, employees, agents and
representatives, for loss of or damage to Trustor, the Property, any other
property of Trustor, or any property of others under Trustor's control, from any
cause insured against or required to be insured against by the provisions of
this Deed of Trust.
(l) Requirements Supplemental. The requirements of this Deed of Trust
with respect to insurance and maintenance of the Property shall be supplemental
to and not exclusive of the requirements of the Credit Agreement and the
Security Agreement relating thereto.
7. Casualties; Insurance Proceeds.
(a) Notice of Casualties. Trustor shall give prompt written notice
thereof to Beneficiary after the happening of any material casualty to or in
connection with the Property or any part thereof, whether or not such casualty
is covered by insurance.
16
(b) Payment of Proceeds. Prior to any Event of Default, proceeds of
insurance in an amount not greater than $2,500,000 payable in connection with
any casualty affecting all or any portion of the Property shall be payable to
Trustor. Proceeds in any greater amount and, after an Event of Default, all
proceeds, payable in connection with any casualty affecting all or any portion
of the Property shall be payable to Beneficiary. Trustor hereby authorizes and
directs any affected insurance company to make payment of such proceeds directly
to Beneficiary. If Trustor receives any proceeds of insurance resulting from a
casualty which, pursuant to this Deed of Trust, are to be paid to Beneficiary,
Trustor shall promptly pay over such proceeds to Beneficiary. Trustor shall not
settle, adjust or compromise any claims for loss, damage or destruction of the
Property or any part thereof under any policy or policies of insurance in
connection with a loss in an amount greater than $500,000 without the prior
written consent of Beneficiary to such settlement, adjustment or compromise;
and, if Trustor is then in default hereunder, Beneficiary shall have the sole
and exclusive right, and Trustor hereby authorizes and empowers Beneficiary, to
settle, adjust or compromise any such claims.
(c) Use in Restoration. In the event of any damage to or destruction
of the Property, and provided that (i) at the time of such damage or destruction
or thereafter, an Event of Default does not exist hereunder, and (ii)
application of insurance proceeds to restoration of the Property will not, in
Beneficiary's reasonable judgment, impair Beneficiary's security for the
obligations secured hereby, insurance proceeds payable in connection with such
damage or destruction shall be applied, first, toward reimbursement of all of
Beneficiary's reasonable costs and expenses of recovering the proceeds,
including reasonable attorneys' fees; then, to payment of all sums advanced by
Beneficiary to protect the Property or the security for the Secured Obligations;
then, to payment of obligations then due under the Guaranty; then, to
restoration of the Property, upon such reasonable conditions as Beneficiary
shall determine (it being expressly understood and agreed that Beneficiary may
condition disbursement of such proceeds for restoration upon, among other
things: delivery to Beneficiary by Trustor of detailed plans and specifications
providing for restoration in accordance with all applicable Legal Requirements
of all governmental authorities having jurisdiction over the Project, together
with a detailed estimate of the cost of the work and schedule therefor and a
construction contract satisfactory to Beneficiary, with a contractor
satisfactory to Beneficiary, for performance of the work within the budgeted
amount, and within the scheduled time for completion; proof that the insurance
required hereby is in force; proof that an amount equal to the sum which
Beneficiary is requested to disburse has theretofore been paid by Trustor, or is
then due and payable, for materials theretofore installed or work theretofore
performed upon the Property and properly includable in the cost of repair,
reconstruction or restoration thereof; proof that, after repair or
reconstruction, the Property will be at least as valuable as it was immediately
before the damage or condemnation occurred; and proof that the insurance
proceeds available for repair or restoration are sufficient, in Beneficiary's
determination, to pay for the total cost of repair or reconstruction, including
all associated development costs and interest projected to be payable on the
Secured Obligations until the repair or reconstruction is complete, or Trustor
must provide its own funds in an amount equal to the difference between the
proceeds available for repair or restoration and a reasonable estimate, made by
Trustor and found acceptable by Beneficiary, of the total cost of repair or
reconstruction); and, upon completion of the work of restoration and payment of
the cost thereof, any balance of such proceeds shall be applied to the
indebtedness guaranteed by the Guaranty, in such order as Beneficiary, in its
sole discretion, shall determine; and, if any then remains, it shall be paid
over to Trustor.
(d) Application by Beneficiary. If (i) at the time of such damage or
destruction or thereafter, an Event of Default exists hereunder, or (ii)
application of insurance proceeds to restoration
17
will, in Beneficiary's reasonable judgment, impair Beneficiary's security for
the obligations secured hereby, Beneficiary shall have the option, in its sole
and absolute discretion, (1) to apply all or any portion of such proceeds to any
indebtedness guaranteed by the Guaranty and in such order as Beneficiary may
determine, notwithstanding that said indebtedness or the performance of said
obligation may not be due according to the terms thereof, or (2) to apply all or
any portion of such proceeds to the restoration of the Property, subject to such
conditions as Beneficiary shall determine, or (3) to deliver all or any portion
such proceeds to Trustor, subject to such conditions as Beneficiary may
determine.
(e) Duty to Restore. Nothing in this Deed of Trust shall be deemed to
excuse Trustor from restoring, repairing and maintaining the Property, as herein
provided, regardless of whether or not insurance proceeds are available for
restoration, whether or not any such proceeds are sufficient in amount, or
whether or not the Property can be restored to the same condition and character
as existed prior to such damage or destruction.
8. Taxes and Impositions.
(a) Payment by Trustor. Trustor shall pay, or cause to be paid, at
least ten (10) days prior to delinquency, all real property taxes and
assessments, general and special, and all other taxes and assessments of any
kind or nature whatsoever, including, without limitation, non-governmental
levies or assessments such as maintenance charges, owner association dues or
charges or fees, levies or charges resulting from covenants, conditions or
restrictions affecting the Property, which are assessed or imposed upon the
Property, or become due and payable, and which create, may create or appear to
create a lien upon the Property, or any part thereof, or upon any personal
property, equipment or other facility used in the operation or maintenance
thereof (all of which taxes, assessments and charges, together with any and all
other taxes, and charges of a similar kind or nature are collectively referred
to hereinafter as "Impositions"); provided, however, that if, by law, any such
Imposition is payable, or may at the option of the taxpayer be paid, in
installments, Trustor may pay the same or cause it to be paid, together with any
accrued interest on the unpaid balance of such Imposition, in installments as
the same become due and before any fine, penalty, interest or cost may be added
thereto for the nonpayment of any such installment and interest.
(b) New Impositions. If at any time after the date hereof there shall
be assessed or imposed (i) a tax or assessment on the Property in lieu of or in
addition to the Impositions payable by Trustor pursuant to Subsection (a) of
this Section, or (ii) a license fee, tax or assessment imposed on Beneficiary
and measured by or based in whole or in part upon the amount of the Notes or
other obligations secured hereby, then all such taxes, assessments or fees shall
be deemed to be included within the term "Impositions" as defined in Subsection
(a) of this Section, and Trustor shall pay and discharge the same as herein
provided with respect to the payment of Impositions, if Trustor is permitted by
law to pay the same. If Trustor is prohibited by law from paying such
Impositions, then, at the option of Beneficiary, the indebtedness guaranteed by
the Guaranty and all other obligations secured hereby, together with all accrued
interest thereon, shall immediately become due and payable. Anything to the
contrary herein notwithstanding, Trustor shall have no obligation to pay any
franchise, estate, inheritance, income, excess profits or similar tax levied on
Beneficiary or on the obligations secured hereby.
(c) Proof of Payment. Subject to the provisions of Subsection (d) of
this Section, Trustor shall deliver to Beneficiary, within seven (7) days after
the date upon which any Imposition is
18
due and payable by Trustor in accordance with this Deed of Trust, official
receipts of the appropriate taxing authority, or other proof satisfactory to
Beneficiary, evidencing the payment thereof.
(d) Contest of Assessments. Trustor shall have the right before any
delinquency occurs to contest or object to the amount or validity of any such
Imposition by appropriate legal proceedings, but this shall not be deemed or
construed in any way as relieving, modifying or extending Trustor's covenant to
pay any such Imposition at the time and in the manner provided in this Section
unless Trustor has given prior written notice to Beneficiary of Trustor's intent
so to contest or object to an Imposition, and unless, at Beneficiary's sole
option, (i) Trustor shall demonstrate to Beneficiary's satisfaction that the
legal proceedings shall conclusively operate to prevent the sale of the
Property, or any part thereof, to satisfy such Imposition prior to final
determination of such proceedings; or (ii) Trustor shall furnish a good and
sufficient bond or surety as requested by and satisfactory to Beneficiary; or
(iii) Trustor shall demonstrate to Beneficiary's satisfaction that Trustor has
provided a good and sufficient undertaking as required or permitted by law to
accomplish a stay of any such sale.
(e) Reserve Fund. Upon request by Beneficiary following an Event of
Default, Trustor shall pay to Beneficiary an initial cash reserve in an amount
adequate to pay all Impositions for the ensuing tax fiscal year (or such lesser
amount as may then be specified by Beneficiary), and shall thereafter deposit
with Beneficiary each month, commencing with the first month after such request
by Beneficiary and continuing until all sums guaranteed by the Guaranty or
otherwise secured hereby are paid in full or Beneficiary gives notice to Trustor
to cease making such deposits, an amount equal to one-twelfth of the sum of the
annual Impositions, as reasonably estimated by Beneficiary. In such event,
Trustor further agrees to cause all bills, statements or other documents
relating to Impositions to be sent or mailed directly to Beneficiary. Upon
receipt of such bills, statements or other documents evidencing that Impositions
are then payable, and providing Trustor has deposited sufficient funds with
Beneficiary pursuant to this Section, Beneficiary shall pay such amounts as may
be due thereunder out of the funds so deposited with Beneficiary. If at any time
and for any reason the funds deposited with Beneficiary are or will be
insufficient to pay such amounts as may then or subsequently be due, Beneficiary
may notify Trustor and upon such notice Trustor shall immediately deposit an
amount equal to such deficiency with Beneficiary. Notwithstanding the foregoing,
nothing contained herein shall cause Beneficiary to be deemed a trustee of said
funds or to be obligated to pay any amounts in excess of the amount of funds
deposited with Beneficiary pursuant to this Section, nor shall anything
contained herein modify the obligation of Trustor to pay, or cause to be paid,
all Impositions. Beneficiary may commingle said reserve with its own funds and
Trustor shall be entitled to no interest thereon. Beneficiary may impound or
reserve for future payment of Impositions such portion of such payments as
Beneficiary may in its absolute discretion deem proper, applying the balance
upon any indebtedness guaranteed by the Guaranty or other obligation secured
hereby in such order as Beneficiary may determine, notwithstanding that said
indebtedness or the performance of said obligation may not yet be due according
to the terms thereof. Should Trustor fail to deposit with Beneficiary (exclusive
of that portion of said payments which has been applied by Beneficiary upon any
indebtedness guaranteed by the Guaranty or other obligation secured hereby) sums
sufficient to fully pay such Impositions at least thirty (30) days before
delinquency thereof, Beneficiary may, at Beneficiary's election, but without any
obligation so to do, advance any amounts required to make up the deficiency,
which advances, if any, together with interest thereon at an annual rate equal
to the Agreed Rate, shall be secured hereby and shall be repayable to
Beneficiary upon demand; or, at the option of Beneficiary, Beneficiary may,
without making any advance whatever, apply any sums held by it upon any
indebtedness guaranteed by the Guaranty or other obligation secured hereby, in
such order as Beneficiary may determine, notwithstanding that said indebtedness
or the
19
performance of said obligation may not yet be due according to the terms
thereof. Trustor hereby waives the provisions of NRS 106.105 AND 100.091 to the
maximum extent permitted by law.
(f) Joint Assessment. Trustor shall not initiate, and, to the maximum
extent permitted by law, shall not suffer or permit the joint assessment of any
real and personal property which may constitute all or a portion of the Property
or any other procedure whereby the lien of real property taxes and the lien of
personal property taxes shall be assessed, levied or charged to the Property as
a single lien.
(g) Tax Service. Trustor shall cause to be furnished to Beneficiary a
tax reporting service, covering the Property, of the type and duration, and with
a company, satisfactory to Beneficiary.
9. Liens. Trustor shall pay and promptly discharge, at Trustor's cost
and expense, all liens, encumbrances and charges upon the Property, or any part
thereof or interest therein. If Trustor shall fail to remove and discharge any
such lien, encumbrance or charge, then, in addition to any other right or remedy
of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the
same, either by paying the amount claimed to be due, or by procuring the
discharge of such lien, encumbrance or charge by depositing in a court a bond or
the amount claimed or otherwise giving security for such claim, or by procuring
such discharge in such manner as is or may be prescribed by law. Trustor shall,
immediately upon demand therefor by Beneficiary, pay to Beneficiary an amount
equal to all costs and expenses incurred by Beneficiary in connection with the
exercise by Beneficiary of the foregoing right to discharge any such lien,
encumbrance or charge, together with interest thereon from the date of such
expenditure at an annual rate equal to the Agreed Rate.
10. Leaseholds, Leases, Easements, and Servitudes.
(a) Leaseholds and Leases.
i) Trustor agrees to duly and punctually pay when due all rents
and other payments due under each of the Ground Leases; to at all times
perform all covenants, agreements, terms and conditions imposed on or
assumed by Trustor as lessee under each of the Ground Leases; to cause each
of the Ground Leases to remain in effect so long as any portion of any
indebtedness guaranteed by the Guaranty or otherwise secured hereby shall
be unpaid; to pay or cause the lessor under each such Ground Lease (the
"Ground Lessor") or any prior lessees of the Property to pay any portion of
the impositions, including taxes, assessments, rates and charges to be
borne by such Ground Lessor or such other lessees that have or might become
a lien on the Property or the leasehold estate; to do all things necessary
to keep unimpaired Trustor's right in and to the estate created by each of
the Ground Leases; to refrain from doing anything which would impair
Trustor's right in and to the estate of each of the Ground Leases or which
would be grounds for declaring a forfeiture or causing a termination or
cancellation of any of the Ground Leases. To prevent any default thereunder
or forfeiture or impairment thereof, Trustor shall not, except with the
prior written consent of the Beneficiary:
a) Cancel, terminate, abandon, or surrender any of the
Ground Leases, or consent to or accept any cancellation or termination
thereof, or permit any condition or event to exist which would
terminate or cancel the same, or permit such termination or
cancellation;
20
b) Amend, modify, change, supplement or alter ("Amendments")
any of the Ground Leases, whether orally or in writing if the effect
of such Amendment, together with all other Amendments, is to increase
materially the obligations of Trustor thereunder or to confer any
additional rights on the Ground Lessor of such Ground Lease that could
reasonably be expected to be materially adverse to Trustor or
Beneficiary, but Trustor shall not make any Amendments to the rent,
term, or use or development provisions of any Ground Lease without the
prior written consent of Beneficiary; or
c) Take any action in connection with any of the Ground
Leases which would presently or hereafter have the effect of impairing
the value of Trustor's interest thereunder, or of the Property, or of
impairing the interest of Beneficiary in any of the Ground Leases or
in the Property.
ii) Trustor further agrees that it will promptly deliver to
Beneficiary an exact copy of any notice, communication, plan, specification
or other instrument or document received or given by Trustor in any way
relating to or affecting any of the Ground Leases or the Property which may
concern or affect the estate of the lessor in or under any of the Ground
Leases or in the Property; and upon the failure of Trustor with respect to
any of the covenants and agreements in this Section 10, Beneficiary may, at
its option, declare all sums guaranteed by the Guaranty or otherwise
secured by this Deed of Trust or by any other Loan Document (as defined in
the Credit Agreement) to be immediately due and payable, and avail itself
of any remedies provided for herein; and neither the exercise nor the
failure to exercise the foregoing option by Beneficiary shall be deemed a
waiver or release of its right thereafter to declare an Event of Default
under this Deed of Trust or any other Loan Document by reason of said
failure of Trustor to keep, observe and perform its obligations under such
Loan Document, or be deemed an election of remedies by Beneficiary.
iii) As further security for all indebtedness guaranteed by the
Guaranty or otherwise secured hereby, and for the performance of covenants
herein contained and in each of the Ground Leases contained, Trustor hereby
assigns to Beneficiary all of Trustor's rights, privileges and prerogatives
as lessee under each of the Ground Leases, whether now existing or
hereafter acquired, to terminate, cancel, modify, change, supplement,
alter, amend or extend any of the Ground Leases or to purchase the demised
premises of any of the Ground Leases. Any such termination, cancellation,
modification, change, supplement, alteration, amendment, or extension of
any of the Ground Leases without the prior written consent thereto by
Beneficiary shall be void and of no force and effect.
iv) Any waiver or forbearance of enforcement by Beneficiary with
respect to any default in any of Trustor's obligations under any of the
Ground Leases, whether pursuant to the Ground Lease, or otherwise, shall
not release Trustor of any of its obligations under this Deed of Trust,
including its obligations with respect to payment of rentals as provided in
each of the Ground Leases and the performance of all of the terms,
provisions, covenants, conditions and agreements contained in each of the
Ground Leases to be performed by Trustor.
v) Upon Trustor's failure to perform any of its covenants,
agreements, terms or conditions imposed on or assumed by Trustor as lessee
under any of the Ground Leases, Beneficiary may, at its option, but shall
not be obligated to, take any action Beneficiary deems
21
necessary or desirable to cure any default by Trustor in the performance of
or compliance with any of Trustor's covenants or obligations under any of
the Ground Leases. Upon receipt by Beneficiary of any written notice from
any Ground Lessor of any default by the Trustor as lessee thereunder,
Beneficiary may rely thereon and take any action as aforesaid to cure any
such alleged default if, in Beneficiary's sole judgment, such alleged
default could result in immediate termination of such Ground Lease even
though the existence of such default or the nature thereof is questioned or
denied by Trustor or by any party acting on behalf of Trustor. Trustor
hereby grants to Beneficiary and agrees that Beneficiary, its officers,
employees, agents, and workmen shall have the absolute and immediate right
to enter in and on the Property to the extent and as often as Beneficiary,
in its sole discretion, deems necessary for the purpose of taking such
action as provided in the preceding sentence. Any expenditure or payments
made or incurred by Beneficiary in curing or commencing to cure any such
alleged default or potential default shall be an advance secured by the
lien of this Deed of Trust, and shall bear interest at the Agreed Rate from
the date of such advance, and shall, at the option of Beneficiary, be
immediately repayable upon demand. Should Trustor fail to repay Beneficiary
any such advance with interest as herein provided within ten (10) days
after demand of the same, Beneficiary may, at its option, declare all sums
guaranteed by the Guaranty or otherwise secured by this Deed of Trust or by
any other Loan Document to be immediately due and payable, and avail itself
of any remedies provided for herein; and neither the exercise nor the
failure to exercise the foregoing option by Beneficiary shall be deemed a
waiver or release of its right thereafter to declare an Event of Default
under this Deed of Trust by reason of said failure of Trustor to keep,
observe and perform its obligations under each of the Ground Leases or
hereunder, or be deemed an election of remedies by Beneficiary. Any such
action of Beneficiary to cure a default of Trustor under a Ground Lease
shall not without Beneficiary's consent, remove or waive the corresponding
Event of Default under the terms hereof.
vi) If both the lessor's and lessee's estates under the Ground
Lease shall at any time become vested in one owner, this Deed of Trust and
the lien created hereby shall not be destroyed or terminated by application
of the doctrine of merger; and in such event, Beneficiary shall continue to
have and to enjoy all of the rights, title interest and privileges of
Beneficiary as to the separate estates. In the event that Trustor shall
acquire fee simple title to the Property at any time prior to the payment
in full of all indebtedness guaranteed by the Guaranty or otherwise secured
by this Deed of Trust, such fee simple title shall not merge with the
leasehold estate encumbered by this Deed of Trust, but such fee simple
title shall, without further action on the part of Trustor, continue to be
subject to the lien and security interest hereof. In the event of such
acquisition by Trustor, Trustor agrees to execute and deliver to
Beneficiary such further instruments, covenants, and assurances as
Beneficiary may reasonably require in order to further confirm and assure
that the fee simple title so acquired by Trustor is and continues to be
subject to the covenants, terms, agreements, conditions, lien and security
interest of this Deed of Trust. In addition, if both the lessor's and
lessee's estates under any of the Ground Leases shall at any time become
vested in one owner, any Leases then existing shall not be destroyed or
terminated by application of the law of merger or as a matter of law unless
Beneficiary shall so elect in writing.
vii) Notwithstanding anything to the contrary herein contained
with respect to any Ground Lease:
22
a) The lien of this Deed of Trust attaches to all of
Trustor's rights and remedies at any time arising under or pursuant to
Subsection 365(h) of the Bankruptcy Code, 11 U.S.C. Sections 101 et
seq. (the "Bankruptcy Code"), including, without limitation, all of
Trustor's rights to remain in possession of the Property.
b) Trustor shall not, without Beneficiary's written consent,
elect to treat any of the Ground Leases as terminated under subsection
365(h)(1) of the Bankruptcy Code. Any such election made without
Beneficiary's prior written consent shall be void.
c) As security for the Secured Obligations, Trustor hereby
unconditionally assigns, transfers and sets over to Beneficiary all of
Trustor's claims and rights to the payment of damages arising from any
rejection by any lessor of any of the Ground Leases under the
Bankruptcy Code. Beneficiary and Trustor shall proceed jointly or in
the name of Trustor in respect of any claim, suit, action or
proceeding relating to the rejection of any Ground Lease, including,
without limitation, the right to file and prosecute any proofs of
claim, complaints, motions, applications, notices and other documents
in any case in respect of such lessor under the Bankruptcy Code. This
assignment constitutes a present, irrevocable and unconditional
assignment of the foregoing claims, rights and remedies, and shall
continue in effect until all of the Secured Obligations shall have
been satisfied and discharged in full. Any amounts received by
Beneficiary or Trustor as damages arising out of the rejection of any
Ground Lease as aforesaid shall be applied first to all costs and
expenses of Beneficiary (including, without limitation, attorneys'
fees and costs) incurred in connection with the exercise of its rights
or remedies under this Section 10.(a) and then in accordance with the
other applicable provisions of this Deed of Trust.
d) If, pursuant to subsection 365(h)(1) of the Bankruptcy
Code, Trustor seeks to offset against the rent reserved in any Ground
Lease the amount of any damages caused by the nonperformance by the
lessor thereunder of such lessor's obligations under such Ground Lease
after the rejection by lessor of such Ground Lease under the
Bankruptcy Code, Trustor shall, prior to effecting such offset, notify
Beneficiary in writing of its intent so to do, setting forth the
amounts proposed to be so offset, and, in the event Beneficiary
objects, Trustor shall not effect offset of the amounts so objected to
by Beneficiary. If Beneficiary has failed to object as aforesaid
within ten days after notice from Trustor in accordance with the first
sentence of this Section 10(a)(vii)(4), Trustor may proceed to offset
the amounts set forth in Trustor's notice.
e) If any action, proceeding, motion or notice shall be
commenced or filed in respect of any lessor or the Property or any
portion thereof in connection with any case under this Bankruptcy
Code, Beneficiary and Trustor shall cooperatively conduct and control
any such litigation with counsel agreed upon between Trustor and
Beneficiary in connection therewith. Trustor shall, upon demand, pay
to Beneficiary all costs and expenses (including reasonable attorneys'
fees and costs) paid or incurred by Beneficiary in connection with the
cooperative prosecution or conduct of any such proceedings. All such
costs and expenses shall be secured by the lien of this Deed of Trust.
23
f) Trustor shall promptly, after obtaining knowledge
thereof, notify Beneficiary orally of any filing by or against any
lessor of a petition under the Bankruptcy Code. Trustor shall
thereafter promptly give written notice of such filing to Beneficiary,
setting forth any information available to Trustor as to the data of
such filing, the court in which such petition was filed, and the
relief sought therein. Trustor shall promptly deliver to Beneficiary,
following its receipt thereof, any and all notices, summonses,
pleadings, applications and other documents received by Trustor in
connection with any such petition and any proceedings relating
thereto.
viii) To the extent permitted by law, the price payable by
Trustor or any other party in the exercise of the right of redemption, if
any, from any sale under or decree of foreclosure of this Deed of Trust
shall include all rents and other amounts paid and other sums advanced by
Beneficiary on behalf of Trustor as the lessee under the Ground Leases.
ix) Trustor hereby grants and assigns to Beneficiary a security
interest in all prepaid rent and security deposits and all other security
which the lessors under the Ground Leases may hold now or later for the
performance of Trustor's obligations as the lessee under the Ground Leases.
x) Trustor shall not, without Beneficiary's written consent, fail
to exercise any option or right to renew or extend the term of any Ground
Lease at least six months prior to the date of termination of any such
option or right, shall give immediate written notice thereof to
Beneficiary, and shall execute, acknowledge, deliver and record any
document reasonably requested by Beneficiary to evidence the lien of this
Deed of Trust on such extended or renewed lease term. If Trustor shall fail
to exercise any such option or right as aforesaid, Beneficiary may exercise
the option or right as Trustor's agent and attorney-in-fact pursuant to
Section 10(a)(xiii) below of this Deed of Trust, or in Beneficiary's own
name or in the name of and on behalf of a nominee of Beneficiary, as
Beneficiary may determine in the exercise of its sole and absolute
discretion.
xi) All subleases entered into by Trustor (and all existing
subleases modified or amended by Trustor) shall provide that such subleases
are subordinate to the lien of this Deed of Trust and any extensions,
replacements and modifications of this Deed of Trust and the obligations
secured hereby and that if Beneficiary forecloses under this Deed of Trust
or enters into a new lease with any lessor under a Ground Lease pursuant to
the provisions for a new lease, if any, contained in the applicable Ground
Lease or any document supplementing the Ground Lease, then the sublessee
shall attorn to Beneficiary or its assignee and the sublease will remain in
full force and effect in accordance with its terms and notwithstanding the
termination of the applicable Ground Lease.
xii) Trustor shall not waive, excuse, condone or in any way
release or discharge the lessor under any Ground Lease of or from such
lessor's material obligations, covenants and/or conditions under the Ground
Lease without the prior written consent of Beneficiary.
xiii) If any default under any Ground Lease shall have occurred
and be continuing, Trustor shall promptly execute, acknowledge and deliver
to Beneficiary such
24
instruments as may reasonably be required to permit Beneficiary to cure
such default under such Ground Lease or permit Beneficiary to take such
other action required to enable Beneficiary to cure or remedy the matter in
default and preserve the security interest of Beneficiary under this Deed
of Trust with respect to such Ground Lease. Trustor hereby irrevocably
appoints Beneficiary as its true and lawful attorney-in-fact to do, in its
name or otherwise, any and all acts and to execute any and all documents
which are necessary to preserve any rights of Trustor under or with respect
to any of the Ground Leases, including, without limitation, the right to
effectuate any extension or renewal of any of the Ground Leases, or to
preserve any rights of Trustor whatsoever in respect of any part of any of
the Ground Leases (and the above powers granted to Trustor are coupled with
an interest and shall be irrevocable).
The generality of the provisions of this Section 10(a) relating to the Ground
Leases shall not be limited by other provisions of this Deed of Trust setting
forth particular obligations of Trustor which are also required of Trustor with
respect to the Ground Leases or the Property.
(b) Easement. If an easement or other incorporeal right constitutes a
portion of the Real Property, Trustor agrees not to terminate or materially
amend, change, or modify such easement or other right or interest, or any right
thereto or interest therein, without the prior written consent of Beneficiary.
Consent to one amendment, change, agreement or modification shall not be deemed
to be a waiver of the right to require consent to other, future or successive
amendments, changes, agreements or modifications. Trustor agrees to perform all
obligations and agreements with respect to said easement or other right or
interest and shall not take any action or omit to take any action which would
effect or permit the termination thereof. Trustor agrees to promptly notify
Beneficiary in writing with respect to any default or alleged default by any
party thereto and to deliver to Beneficiary copies of all notices, demands,
complaints or other communications received or given by Trustor with respect to
any such default or alleged default. Beneficiary shall have the option to cure
any such default and to perform any or all of Trustor's obligations thereunder
or with respect thereto. All sums expended by Beneficiary in curing any such
default shall be secured hereby and shall be immediately due and payable without
demand or notice and shall bear interest from date of expenditure at an annual
rate equal to the Agreed Rate.
11. Further Acts. Trustor shall do and perform all acts necessary to
keep valid and effective the charges and lien hereof, to carry into effect its
object and purposes, to protect the lawful owners of the Guaranty and other
obligations secured hereby; shall execute and deliver to Beneficiary at any
time, upon request of Beneficiary, all other and further instruments in writing
necessary to vest in and secure to Trustee each and every part of the Real
Property and to Beneficiary the Rents therefrom and rights and interest of
Beneficiary therein or with respect thereto; and, upon request by the
Beneficiary, shall supply evidence of fulfillment of each of the covenants
herein contained concerning which a request for such evidence has been made.
12. Assignment of Rents.
(a) Assignment to Beneficiary; Trustor's Limited License to Collect
Prior to Default. Notwithstanding any language contained herein, or in any other
document, to the contrary, Trustor hereby irrevocably and absolutely assigns and
transfers to Beneficiary, without having to first take possession of the
Property, all Rents, including all present and future Leases and other rental
agreements, reserving unto Trustor a license to collect such Rents prior to
written notice to Trustor of
25
the occurrence of any Event of Default. Subsequent to the occurrence of an Event
of Default, and written notice to Trustor thereof, any Rents, including those
past due, unpaid or undetermined, may be collected by Beneficiary or its agent,
and any amount so collected shall be applied, less costs and expenses of
operation and collection, including reasonable attorneys' fees, to any
indebtedness guaranteed by the Guaranty and/or other obligations secured hereby,
and in such order as Beneficiary shall determine. The collection of such Rents,
and the application thereof as aforesaid, shall not cure or constitute a waiver
of any default or notice of default hereunder or invalidate any act done
pursuant to such notice. Trustor and Beneficiary intend that this assignment
shall be a present, absolute and unconditional assignment, not an assignment for
additional security only, and shall, immediately upon the execution hereof,
subject to the license granted above, give Beneficiary, and its agent, the right
to collect the Rents and to apply them as aforesaid. Nothing contained herein,
nor any collection of Rents by Beneficiary, or its agent or a receiver, shall be
construed to make Beneficiary (i) a "Mortgagee-in-Possession" of the Property so
long as Beneficiary has not itself entered into actual possession of the
Property; (ii) responsible for performing any of the obligations of the lessor
under any Lease; (iii) responsible for any waste committed by lessees or any
other parties, any dangerous or defective condition of the Property, or any
negligence in the management, upkeep, repair or control of the Property; or (iv)
liable in any manner for the Property or the use, occupancy, enjoyment or
operation of all or any part of it.
(b) No Other Assignments. Trustor hereby represents to Beneficiary
that there is no assignment or pledge of any Leases of, or Rentals from, the
Property now in effect, and covenants that, until the Notes are fully paid and
the other Secured Obligations are fully satisfied, Trustor will not make any
such assignment or pledge to anyone other than Beneficiary nor will it accept
any periodic payments which are to be made pursuant to such Leases or Rents more
than ten (10) days in advance of the date on which such payments are due.
13. Actions Affecting Property. Trustor shall give Beneficiary and
Trustee prompt written notice of the assertion of any claim with respect to, or
the filing of any action or proceeding affecting or purporting to affect, the
Property, or title thereto or any right of possession thereof, or this Deed of
Trust or the security hereof or the rights or powers of Beneficiary or Trustee
hereunder. Trustor shall appear in and contest any such action or proceeding at
Trustor's sole expense; and shall pay all costs and expenses, including cost of
evidence of title and attorneys' fees, in any such action or proceeding in which
Beneficiary or Trustee may appear.
14. Eminent Domain. If any proceeding or action be commenced for the
taking of the Property, or any part thereof or interest therein, for public or
quasi-public use under the power of eminent domain, condemnation or otherwise,
or if the same be taken or damaged by reason of any public improvement or
condemnation proceeding, or in any other manner, or should Trustor receive any
notice or other information regarding such proceeding, action, taking or damage
(including, without limitation, a proposal to purchase the Property or some
portion thereof in lieu of condemnation), Trustor shall give prompt written
notice thereof to Beneficiary. Beneficiary shall be entitled, at its option,
without regard to the adequacy of its security, to investigate and negotiate
with the condemnor concerning the proposed taking, to commence, appear in and
prosecute in its own name any such action or proceeding, and, if an Event of
Default then exists hereunder, to make any compromise or settlement in
connection with such taking or damage. Trustor shall not compromise or settle
any such action or proceeding or agree to any sale in lieu of condemnation
without the prior written consent of Beneficiary. All compensation, awards,
damages, rights of action and proceeds awarded to Trustor by reason of any such
taking, transfer or damage (the "Award") are hereby assigned to Beneficiary and
Trustor agrees to execute such further
26
assignments of the Award as Beneficiary or Trustee may require. After deducting
therefrom all costs and expenses (regardless of the particular nature thereof
and whether incurred with or without suit), including attorneys' fees, incurred
by it in connection with any such negotiations, action or proceeding (whether or
not prosecuted to judgment), Beneficiary shall, if (i) an Event of Default does
not then exist hereunder, and (ii) if application of the Award to restoration of
the Property will not, in Beneficiary's reasonable judgment, impair
Beneficiary's security for the Secured Obligations, apply the Award to the
restoration of the Property, subject to such conditions as Beneficiary shall
determine (it being expressly understood and agreed that Beneficiary may
condition disbursement of such proceeds for restoration upon proof that an
amount equal to the sum which Beneficiary is requested to disburse has
theretofore been paid by Trustor without reimbursement therefor, or is then due
and payable, for materials theretofore installed or work theretofore performed
upon the Property and properly includable in the cost of repair, reconstruction
or restoration thereof). If, at the time of receipt by Beneficiary of such
proceeds, (i) an Event of Default then exists hereunder, or (ii) application of
the Award to restoration will, in Beneficiary's reasonable judgment, impair
Beneficiary's security for the Secured Obligations, Beneficiary shall have the
option, in its sole and absolute discretion, (1) to apply all or any portion of
the Award upon any indebtedness guaranteed by the Guaranty and in such order as
Beneficiary may determine, notwithstanding that said indebtedness or the
performance of said obligation may not be due according to the terms thereof, or
(2) to apply all or any portion of the Award to the restoration of the Property,
subject to such conditions as Beneficiary may determine, or (3) to deliver all
or any portion of the Award, after such deductions, to Trustor, subject to such
conditions as Beneficiary may determine (and, if the Award is not sufficient to
satisfy the Secured Obligations in full, Trustor shall immediately pay any
remaining balance, together with all accrued interest thereon). Nothing herein
contained shall be deemed to excuse Trustor from restoring, repairing and
maintaining the Property, as herein provided, regardless of whether or not the
Award is available for restoration, whether or not any such Award is sufficient
in amount, or whether or not the Property can be restored to the same condition
and character as existed prior to such damage or partial taking. Trustor hereby
specifically, unconditionally and irrevocably waives all rights of a property
owner under all laws, including NRS 37.115, as amended or recodified from time
to time, which provide for allocation of condemnation proceeds between a
property owner and a lienholder.
15. Due on Sale. Except as otherwise permitted by the Credit
Agreement, if Trustor shall sell or convey, or create or permit to exist any
mortgage, pledge, security interest or other encumbrance on, or in any other
manner alienate or otherwise "transfer" the Real Property hereby encumbered or
any part thereof or any interest therein, or shall enter into any agreement for
the same, or shall be divested of its title in any manner or way, whether
voluntary or involuntary or by merger, without the written consent of
Beneficiary being first had and obtained, any indebtedness guaranteed by the
Guaranty or other obligation secured hereby, irrespective of the maturity dates
expressed in the Notes or any other notes evidencing the same, at the option of
Beneficiary, and without demand or notice, shall immediately become due and
payable. Consent to one such transaction shall not be deemed to be a waiver of
the right to require consent to future or successive transactions. Beneficiary
may grant or deny such consent in its sole discretion and, if consent should be
given, any such transfer shall be subject to this Deed of Trust, and any such
transferee shall assume all obligations hereunder and agree to be bound by all
provisions contained herein. Such assumption shall not, however, release Trustor
or any maker or guarantor of any Secured Obligation from any liability with
respect thereto without the prior written consent of Beneficiary. As used
herein, "transfer" includes the direct or indirect sale, agreement to sell,
transfer, conveyance, pledge, collateral assignment or hypothecation of the Real
Property, or any portion thereof or interest therein, whether voluntary,
involuntary, by operation of law or otherwise, the
27
execution of any installment land sale contract or similar instrument affecting
all or a portion of the Real Property, or the lease of all or substantially all
of the Real Property. The term "transfer" shall also include the direct or
indirect transfer, assignment, hypothecation or conveyance of legal or
beneficial ownership of any stock in Trustor.
16. Partial or Late Payments. By accepting payment of any indebtedness
guaranteed by the Guaranty after its due date, Beneficiary does not waive its
right either to require prompt payment, when due, of all other indebtedness so
secured or to declare default, as herein provided, for failure to so pay.
17. Reconveyance By Trustee. Upon receipt of written request from
Beneficiary reciting that all sums guaranteed by the Guaranty or otherwise
secured hereby have been paid and upon surrender of this Deed of Trust and the
Guaranty secured hereby to Trustee for cancellation and retention, or such other
disposition as Trustee, in its sole discretion, may choose, and upon payment of
its fees, the Trustee shall reconvey, without warranty or recourse, the Property
then held hereunder. The recitals in such reconveyance of any matters of fact
shall be conclusive proof of the truth thereof. The grantee in such reconveyance
may be described in general terms as "the person or persons legally entitled
thereto".
18. Right of Beneficiary and Trustee to Appear. If, during the
existence of the trust created hereby, there be commenced or pending any suit or
action materially and adversely affecting the Property, or any part thereof, or
the title thereto, or if any adverse claim for or against the Property, or any
part thereof, be made or asserted, the Trustee or Beneficiary may appear or
intervene in the suit or action and retain counsel therein and, unless such suit
or action is being diligently contested in good faith by Trustor and Trustor
shall have established and maintained adequate reserves with Beneficiary for the
full payment and satisfaction of such suit or action if determined adversely to
Trustor, may defend same, or otherwise take such action therein as the Trustee
or Beneficiary may be advised and may pay and expend such sums of money as the
Trustee or Beneficiary may deem to be necessary and Trustor shall pay all
reasonable costs and expenses of Trustee and Beneficiary incurred in connection
therewith.
19. Performance by Trustee or Beneficiary. If Trustor fails to make
any payment or perform any act as and in the manner provided in any of the Loan
Documents, then the Trustee or Beneficiary, at the election of either of them
and without any obligation to do so, after the giving of reasonable notice to
the Trustor, or any successor in interest of the Trustor, or any of them and
without releasing Trustor from any obligation hereunder, may make such payment
or perform such act and incur any liability, or expend whatever amounts, in its
absolute discretion, it may deem necessary therefor. In connection therewith
(without limiting their general and other powers, whether conferred herein, in
another Loan Document or by law), Beneficiary and Trustee, and each of them,
shall have and are hereby given the right, but not the obligation, (i) to enter
upon and take possession of the Property; (ii) to make additions, alterations,
repairs and improvements to the Property which they or either of them may
consider necessary or proper to keep the Property in good condition and repair;
(iii) to appear and participate in any action or proceeding affecting or which
may affect the security hereof or the rights or powers of Beneficiary or
Trustee; (iv) to pay, purchase, contest or compromise any encumbrance, claim,
charge, lien or debt which in the judgment of either may affect or appears to
affect the security of this Deed of Trust or to be prior or superior hereto; and
(v) in exercising such powers, to pay necessary expenses, including employment
of counsel and other necessary or desirable consultants. All sums incurred or
expended by the Trustee or Beneficiary, under the terms hereof (including,
without limiting
28
the generality of the foregoing, costs of evidence of title, court costs,
appraisals, surveys, and receiver's, Trustee's and attorneys' fees, costs and
expenses (including, without limitation, the fees and expenses of attorneys for
Trustee), whether or not an action is actually commenced in connection
therewith), shall become due and payable by Trustor to Trustee within ten (10)
days and shall bear interest until paid at an annual percentage rate equal to
the Agreed Rate. In no event shall payment by Trustee or Beneficiary be
construed as a waiver of the default occasioned by Trustor's failure to make
such payment or payments.
20. Inspections. Beneficiary, or its agents, representatives or
workers, are authorized to enter at any reasonable time upon or in any part of
the Property for the purpose of inspecting the same and for the purpose of
performing any of the acts it is authorized to perform hereunder or under the
terms of any of the Loan Documents.
21. Invalidity of Lien. If the lien of this Deed of Trust is invalid
or unenforceable as to any part of the debt, or if the lien is invalid or
unenforceable as to any part of the Property, the unsecured or partially secured
portion of the debt shall be completely paid prior to the payment of the
remaining and secured or partially secured portion of the debt, and all payments
made on the debt, whether voluntary or under foreclosure or other enforcement
action or procedure, shall be considered to have been first paid on and applied
to the full payment of that portion of the debt which is not secured or is not
fully secured by the lien of this Deed of Trust.
22. Subrogation. To the extent that any sums advanced by Beneficiary
are used to pay any outstanding lien, charge or prior encumbrance against the
Property, such sums shall be deemed to have been advanced by Beneficiary at
Trustor's request and Beneficiary shall be subrogated to any and all rights and
liens held by any owner or holder of such outstanding liens, charges and prior
encumbrances, regardless of whether said liens, charges or encumbrances are
released.
23. Events of Default. Trustor will be in default under this Deed of
Trust upon the occurrence of any one or more of the following events (some or
all collectively, "Events of Default"; any one singly, an "Event of Default"):
(a) Failure to Pay. Any amount due under any of the Notes, the
Guaranty, the Credit Agreement, this Deed of Trust or any other Loan Document,
or any other amount the payment of which is secured hereby, is not paid when
due; or
(b) Other Breaches Hereof. A breach by Trustor of any representation,
warranty or covenant in this Deed of Trust which is not cured within any
applicable notice and cure period provided in the Credit Agreement with respect
to such breach; or
(c) Defaults Under Other Loan Documents. The occurrence under any of
the Loan Documents of an "Event of Default" (as defined therein).
24. Remedies. At any time after an Event of Default, Beneficiary and
Trustee will be entitled to invoke any and all of the following rights and
remedies, all of which will be cumulative, and the exercise of any one or more
of which shall not constitute an election of remedies:
(a) Acceleration. Beneficiary may declare any or all of the Secured
Obligations to
29
be due and payable immediately, without presentment, demand, protest or notice
of any kind.
(b) Receiver. Beneficiary may apply to any court of competent
jurisdiction for, and obtain appointment of, a receiver for the Property or any
part thereof, without notice to Trustor or anyone claiming under Trustor, and
without regard to the then value of the Property or the adequacy of any security
for the Secured Obligations, and Trustor hereby irrevocably consents to such
appointment and waives notice of any application therefor. Any such receiver or
receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Beneficiary in case of entry as
provided herein and in the Credit Agreement and shall continue as such and
exercise all such powers until the later of (i) the date of confirmation of sale
of all of the Property; (ii) the disbursement of all proceeds of the Property
collected by such receiver and the payment of all expenses incurred in
connection therewith; or (iii) the termination of such receivership with the
consent of Beneficiary or pursuant to an order of a court of competent
jurisdiction. Beneficiary may also request, in connection with any foreclosure
proceeding hereunder, that the Nevada Gaming Commission petition a District
Court of the State of Nevada for the appointment of a supervisor to conduct the
normal gaming activities on the Property following such foreclosure proceeding.
(c) Entry. Beneficiary, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part of
the Property, subject to applicable Gaming Laws (as defined in the Credit
Agreement), and may also do any and all other things in connection with those
actions that Beneficiary may, in its sole discretion, consider necessary and
appropriate to protect the security of this Deed of Trust. Such other things may
include, among other things, any of the following: taking and possessing all of
Trustor's or the then owner's books and records; entering into, enforcing,
modifying, or canceling Leases on such terms and conditions as Beneficiary may
consider proper; obtaining and evicting tenants; fixing or modifying Rents;
collecting and receiving any payment of money owing to Trustor; completing
construction; and contracting for and making repairs and alterations. If
Beneficiary so requests, Trustor shall assemble all of the Property that has
been removed from the Real Property and make all of it available to Beneficiary
at the site of the Real Property. Trustor hereby irrevocably constitutes and
appoints Beneficiary as Trustor's attorney-in-fact to perform such acts and
execute such documents as Beneficiary in its sole discretion may consider to be
appropriate in connection with taking these measures, including endorsement of
Trustor's name on any instruments. Regardless of any provision of this Deed of
Trust or the Credit Agreement, Beneficiary shall not be considered to have
accepted any property other than cash or immediately available funds in
satisfaction of any obligation of Trustor to Beneficiary, unless Beneficiary has
given express written notice of Beneficiary's election of that remedy in
accordance with the Nevada Uniform Commercial Code, as it may be amended or
recodified from time to time.
(d) Cure; Protection of Security. Either Beneficiary or Trustee may
cure any breach or default of Trustor, and if it chooses to do so in connection
with any such cure, Beneficiary or Trustee may also, enter the Property and,
whether or not Beneficiary or Trustee enter the Property, do any and all other
things which it, in its sole discretion, may consider necessary and appropriate
to protect the security of this Deed of Trust, including, without limitation,
the right to complete the Improvements. Such other things may include: appearing
in and/or defending any action or proceeding which purports to affect the
security of, or the rights or powers of Beneficiary or Trustee under, this Deed
of Trust; paying, purchasing, contesting or compromising any encumbrance,
charge, lien or claim of lien which in Beneficiary's or Trustee's sole judgment
is or may be senior in priority to this Deed of Trust, such judgment of
Beneficiary or Trustee to be conclusive as among the parties to this Deed of
30
Trust; obtaining insurance and/or paying any premiums or charges for insurance
required to be carried under this Deed of Trust; otherwise caring for and
protecting any and all of the Property; and employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary or Trustee.
Beneficiary and Trustee may take any of the actions permitted under this
Subsection either with or without giving notice to any person.
(e) Uniform Commercial Code Remedies. With respect to Personal
Property, Beneficiary may exercise any or all of the remedies granted to a
secured party under NRS Article 104.9101 et seq. (the Nevada enactment of the
Uniform Commercial Code), together with any and all other rights and remedies
provided in the Security Agreement.
(f) Judicial Action. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this Deed of Trust or to obtain specific
enforcement of any of the covenants or agreements of this Deed of Trust or for
any other remedy provided herein, in the Guaranty, in the Credit Agreement, in
any Loan Document or otherwise provided by law or in equity.
(g) Power of Sale. Under the power of sale herein granted, Beneficiary
shall have the discretionary right to cause some or all of the Property,
including any Property which constitutes personal property, to be sold or
otherwise disposed of in any combination and in any manner permitted by
applicable law.
(i) Sales of Personal Property.
(A) For purposes of the power of sale herein granted,
Beneficiary may elect to treat as personal property any Property which
is intangible or which can be severed from the Land or Improvements
without causing structural damage. If Beneficiary chooses to do so,
Beneficiary may dispose of any personal property separately from the
sale of real property, in any manner permitted by or under the NRS,
including any public or private sale, or in any manner permitted by
any other applicable law.
(B) The following provision shall apply in the absence of
any specific statutory requirement which permits or requires a
different notice period: In connection with any sale or other
disposition of such Property, Trustor agrees that the following
procedures constitute a commercially reasonable sale: Beneficiary
shall mail written notice of the sale to Trustor not later than
fifteen (15) days prior to such sale. Not less than once per week
during the two weeks (fourteen (14) days) immediately preceding such
sale, Beneficiary will publish notice of the sale in a local daily
newspaper of general circulation. Upon receipt of any written request,
Beneficiary will, to the extent reasonably practicable, make the
Property available to any bona fide prospective purchaser for
inspection during reasonable business hours prior to the sale.
Notwithstanding any provision to the contrary, Beneficiary shall be
under no obligation to consummate a sale if, in its judgment, none of
the offers received by it equals the fair value of the Property
offered for sale. The foregoing procedures do not constitute the only
procedures that may be commercially reasonable.
31
(ii) Trustee's Sales of Real Property or Mixed Collateral.
(A) Beneficiary may choose to dispose of some or all of the
Property which consists solely of real property in any manner then
permitted by applicable law. In its discretion, Beneficiary may also
or alternatively choose to dispose of some or all of the Property, in
any combination consisting of both real and personal property,
together in one sale to be held in accordance with the law and
procedures applicable to real property. Trustor agrees that any sale
of personal property together with real property constitutes a
commercially reasonable sale of the personal property. For purposes of
this power of sale, either a sale of real property alone, or a sale of
both real and personal property together in accordance with law, will
sometimes be referred to as a "Trustee's Sale."
(B) Before any Trustee's Sale, Beneficiary or Trustee shall
give and record such notice of default and election to sell as may
then be required by law. When all time periods then legally mandated
have expired, and after such notice of sale as may then be legally
required has been given, Trustee shall sell the property being sold at
a public auction to be held at the time and place specified in the
notice of sale. Neither Trustee nor Beneficiary shall have any
obligation to make demand on Trustor before any Trustee's Sale. From
time to time, in accordance with then applicable law, Trustee may, and
in any event at Beneficiary's request shall, postpone any Trustee's
sale by public announcement at the time and place noticed for that
sale, or may, in its discretion, give a new notice of sale.
(C) At any Trustee's Sale, Trustee shall sell to the highest
bidder at public auction for cash in lawful money of the United
States. Trustee shall execute and deliver to the purchaser(s) a deed
or deeds conveying the property being sold without any covenant or
warranty whatsoever, express or implied. The recitals in any such deed
of any matters or facts, including any facts bearing upon the
regularity or validity of any Trustee's Sale, shall be conclusive
proof of their truthfulness. Any such deed shall be conclusive against
all persons as to the facts recited in it.
(h) Single or Multiple Foreclosure Sales. If the Property at the time
of sale or other disposition consists of more than one lot, parcel or item of
property, Beneficiary may:
(i) Designate the order in which the lots, parcels or items shall
be sold or disposed of or offered for sale or disposition; and
(ii) Elect to dispose of the lots, parcels or items through a
single consolidated sale or disposition to be held or made under the
power of sale herein granted, or in connection with judicial
proceedings, or by virtue of a judgment and decree of foreclosure and
sale; or through two or more such sales or dispositions; or in any
other manner that Beneficiary may deem to be in its best interests
(any such sale or disposition, a "Foreclosure Sale;" any two or more,
"Foreclosure Sales").
If Beneficiary chooses to have more than one Foreclosure Sale, Beneficiary at
its option may cause the
32
Foreclosure Sales to be held simultaneously or successively, on the same day, or
on such different days and at such different times and in such order as
Beneficiary may deem to be in its best interests. No Foreclosure Sale shall
terminate or affect the liens of this Deed of Trust on any part of the Property
which has not been sold, until all of the Secured Obligations have been paid in
full.
25. Costs of Enforcement. If any Event of Default occurs, Beneficiary
and Trustee, and each of them, may employ an attorney or attorneys to protect
their rights hereunder. Trustor promises to pay to Beneficiary, on demand, the
fees and expenses of such attorneys and all other costs of enforcing the
obligations secured hereby, including but not limited to, recording fees, the
expense of a Trustee's Sale Guarantee, Trustee's fees and expenses, receivers'
fees and expenses, and all other expenses, of whatever kind or nature, incurred
by Beneficiary and Trustee, and each of them, in connection with the enforcement
of the obligations secured hereby, whether or not such enforcement includes the
filing of a lawsuit. Until paid, such sums shall be secured hereby and shall
bear interest, from date of expenditure, at an annual rate equal to the Agreed
Rate.
26. Remedies Cumulative and Not Exclusive. Trustee and Beneficiary,
and each of them, shall be entitled to enforce payment and performance of any
indebtedness guaranteed by the Guaranty or other obligations secured hereby and
to exercise all rights and powers under this Deed of Trust, any agreement
secured hereby or any other agreement, or under any laws now or hereafter in
force, notwithstanding some or all of the said indebtedness guaranteed by the
Guaranty and other obligations secured hereby may now or hereafter be otherwise
secured, whether by mortgage, deed of trust, pledge, lien, assignment or
otherwise. Neither the acceptance of this Deed of Trust nor its enforcement
whether by court action or pursuant to the power of sale or other powers herein
contained, shall prejudice or in any manner affect Trustee's or Beneficiary's
right to realize upon or enforce any other security now or hereafter held by
Trustee or Beneficiary, it being agreed that Trustee and Beneficiary, and each
of them, shall be entitled to enforce this Deed of Trust and any other security
now or hereafter held by Beneficiary or Trustee in such order and manner as they
or either of them may in their absolute discretion determine. No remedy herein
conferred upon or reserved to Trustee or Beneficiary is intended to be exclusive
of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute. Every power or remedy
given by any other instrument or agreement to Trustee or Beneficiary or to which
either of them may be otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Trustee or Beneficiary and either of them may pursue inconsistent remedies.
27. Credit Bids. At any Foreclosure Sale, any person, including
Trustor, Trustee or Beneficiary, may bid for and acquire the Property or any
part thereof to the extent permitted by then applicable law. Instead of paying
cash for such property, Beneficiary may settle therefor by crediting such
portion of the following obligations against the sales price of the property as
is necessary to equal such price:
(a) First, the portion of the Secured Obligations attributable to the
expenses of sale, costs of any action and any other sums for which Trustor is
obligated to pay or reimburse Beneficiary or Trustee hereunder or under any
other Loan Document; and
(b) Second, any of the other Secured Obligations, in any order and
proportion as Beneficiary, in its sole discretion, may elect.
33
28. Application of Foreclosure Sale Proceeds. Beneficiary and Trustee
shall apply the proceeds of any Foreclosure Sale in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the expenses of sale, costs of any action and any other sums for which
Trustor is obligated to reimburse Beneficiary or Trustee hereunder or under any
other Loan Document;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Beneficiary or Trustee under the terms of
this Deed of Trust which then remain unpaid;
(c) Third, to pay any and all other Secured Obligations, in any order
and proportion as Beneficiary, in its sole discretion, may elect; and
(d) Fourth, the remainder, if any, shall be remitted to the person or
persons entitled to it.
29. Application of Rents and Other Sums. Beneficiary shall apply any
and all Rents collected by it, and any and all sums, other than proceeds of a
Foreclosure Sale, which Beneficiary may receive or collect, in the following
manner:
(a) First, to pay the portion of the Secured Obligations attributable
to the costs and expenses of operation and collection that may be incurred by
Trustee, Beneficiary or any receiver;
(b) Second, to pay any and all other Secured Obligations in any order
and proportion as Beneficiary, in its sole discretion, may elect; and
(c) Third, the remainder, if any, shall be remitted to the person or
persons entitled to it.
Beneficiary shall have no liability for any funds which it does not actually
receive.
30. Incorporation of Certain Nevada Covenants. The following
covenants, Nos. 1, 3, 4 (at the Agreed Rate), 6, 7 (reasonable), 8 and 9 of NRS
107.030, where not in conflict with the provisions of the Loan Documents, are
hereby adopted and made a part of this Deed of Trust. Upon any Event of Default
by Trustor hereunder, Beneficiary may (a) declare all sums secured immediately
due and payable without demand or notice or (b) have a receiver appointed as a
matter of right without regard to the sufficiency of said property or any other
security or guaranty and without any showing as required by NRS 107.100. All
remedies provided in this Deed of Trust are distinct and cumulative to any other
right or remedy under this Deed of Trust or afforded by law or equity and may be
exercised concurrently, independently or successively. The sale of said property
conducted pursuant to Covenants Nos. 6, 7 and 8 of NRS 107.030 may be conducted
either as to the whole of said property or in separate parcels and in such order
as Trustee may determine.
31. Substitution of Trustee. Beneficiary or assigns may, from time to
time, by a written instrument executed and acknowledged by Beneficiary, recorded
in the county in which the Real
34
Property is located and otherwise complying with applicable law, appoint a
successor trustee or trustees to any Trustee named herein or acting hereunder,
to execute the trust created by the Deed of Trust or other conveyance in trust.
Upon the recording of such instrument, the new trustee or trustees shall,
without conveyance from the predecessor trustee, be vested with all the title,
estate, interest, rights, powers, duties and trusts in the premises vested in or
conferred upon the predecessor trustee. If there be more than one trustee,
either may act alone and execute the trusts upon the request of the Beneficiary,
and all his acts thereunder shall be deemed to be the acts of all trustees, and
the recital in any conveyance executed by such sole trustee of such request
shall be conclusive evidence thereof, and of the authority of such sole trustee
to act.
32. Binding Nature. This Deed of Trust applies to, inures to the
benefit of and binds Trustor and the heirs, legatees, devisees, administrators,
personal representatives, executors and the successors and assigns thereof,
Trustee and Beneficiary. As used herein, the term "Beneficiary" shall include
the owners and holders of the Notes and other Secured Obligations from time to
time, whether or not named as Beneficiary herein (it being expressly agreed,
however, that Beneficiary may act through an agent; that only the signature of
such agent is required on any amendment hereof or any consent, approval or other
action hereunder; and that First Interstate Bank of Nevada, N.A., is the initial
agent hereunder); the term "Trustee" shall mean the trustee appointed hereunder
from time to time, whether or not notice of such appointment is given; and the
term "Trustor" shall mean the Trustor named herein and the
successors-in-interest, if any, of said named Trustor, in and to the Property or
any part thereof. If there be more than one Trustor hereunder, their obligations
hereunder shall be joint and several. It is expressly agreed that the Trust
created hereby is irrevocable by Trustor.
33. Acceptance of Trust; Resignation by Trustee. Trustee accepts this
trust when this Deed of Trust, duly executed and acknowledged, is made a public
record as provided by law, reserving, however, unto the Trustee, the right to
resign from the duties and obligations imposed herein whenever Trustee, in its
sole discretion, deems such resignation to be in the best interest of the
Trustee. Written notice of such resignation shall be given to Trustor and
Beneficiary.
34. Full Performance Required; Survival of Warranties. All
representations, warranties and covenants of Trustor contained in any loan
application or made to Beneficiary in or in connection with the Guaranty or any
of the Loan Documents or incorporated by reference in any of them, shall survive
the execution and delivery of this Deed of Trust and shall remain continuing
obligations, warranties and representations of Trustor so long as any portion of
the obligations secured by this Deed of Trust remains outstanding.
35. Waiver of Certain Rights By Trustor. Trustor waives, to the extent
permitted by law, (i) the benefit of all laws now existing or that may hereafter
be enacted providing for any appraisement before sale of any portion of the
Property, (ii) all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of the secured
indebtedness and marshalling in the event of foreclosure of the liens hereby
created, and (iii) all rights and remedies which Trustor may have or be able to
assert by reason of the laws of the State of Nevada pertaining to the rights and
remedies of sureties. Without limiting the generality of the foregoing, Trustor
waives, to the extent permitted by law, all rights (including any rights
provided by NRS 100.040 and 100.050) to direct the order in which any of the
Property shall be sold in the event of any sale or sales pursuant hereto and to
have any of the Property or any other property now or hereafter constituting
security for the indebtedness guaranteed by the Guaranty marshalled upon any
foreclosure of this Deed of Trust or of any
35
other security for any of such indebtedness.
36. Construction. The language in all parts of this Deed Of Trust
shall be in all cases construed simply according to its fair meaning and not
strictly for or against any of the parties hereto. Headings at the beginning of
Sections, Subsections, paragraphs and subparagraphs of this Deed of Trust are
solely for the convenience of the parties, are not a part hereof and shall not
be used in construing this Deed of Trust. The preamble, any recitals and all
exhibits and schedules to this Deed of Trust are part of this Deed of Trust and
are incorporated herein by this reference. When required by the context:
whenever the singular number is used in this Deed of Trust, the same shall
include the plural, and the plural shall include the singular; and the masculine
gender shall include the feminine and neuter genders and vice versa. Unless
otherwise required by the context (or otherwise provided herein): the words
"herein", "hereof" and "hereunder" and similar words shall refer to this Deed of
Trust generally and not merely to the provision in which such term is used; the
word "person" shall include individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority and other entity of whatever
nature; the words "including", "include" or "includes" shall be interpreted in a
non-exclusive manner as though the words "but [is] not limited to" or "but
without limiting the generality of the foregoing" or "without limitation"
immediately followed the same; the word "month" shall mean calendar month; and
the term "business day" shall mean any day other than a Saturday, Sunday or
legal holiday under the laws of the State of Nevada. If the day on which
performance of any act or the occurrence of any event hereunder is due is not a
business day, the time when such performance or occurrence shall be due shall be
the first business day occurring after the day on which performance or
occurrence would otherwise be due hereunder. All times provided in this Deed of
Trust for the performance of any act will be strictly construed, time being of
the essence hereof.
37. Priority. This Deed of Trust is intended to have, and retain,
priority over all other liens and encumbrances upon the Real Property, excepting
only: (i) such Impositions as, at the date hereof, have, or, by law, gain,
priority over the lien created hereby; (ii) covenants, conditions, restrictions,
easements, rights of way and Leases which are of record or are disclosed of
record and which, on the date hereof, affect the Real Property and are superior
in right to or have priority over this Deed of Trust and (iii) Leases, liens,
encumbrances and other matters as to which Beneficiary hereafter expressly
subordinates the lien of this Deed of Trust by written instrument in recordable
form. Under no circumstances shall Beneficiary be obligated or required to
subordinate the lien hereof to any lien, encumbrance, covenant or other matter
affecting the Real Property or any portion thereof. Beneficiary may, however, at
Beneficiary's option, exercisable in its sole and absolute discretion,
subordinate the lien of this Deed of Trust, in whole or in part, to any or all
Leases, liens, encumbrances or other matters affecting all or any portion of the
Real Property, by executing and recording, in the Office of the County Recorder
of the county or counties in which the Real Property is located, a unilateral
declaration of such subordination specifying the Lease, lien, encumbrance or
other matter or matters to which this Deed of Trust shall thereafter be
subordinate.
38. Amendments. This Deed of Trust cannot be waived, changed,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of any waiver, change, discharge or
termination is sought.
39. Financing Statement. Portions of the Personal Property (and
portions of the
36
Real Property) are goods which are or are to become fixtures on or relating to
the Real Property. This Deed of Trust constitutes a financing statement filed as
a fixture filing in the Official Records of the County Recorder of the County in
which the Property is located with respect to any and all fixtures included
within the term "Property" as used herein and with respect to any goods or other
Personal Property that may now be or hereafter become such fixtures. The address
of Beneficiary, from which information concerning the security interest granted
hereunder may be obtained, is:
First Interstate Bank of Nevada, N.A.
Gaming Industry Division
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx, V.P.
The address of Trustor, from which information concerning the security interest
granted hereunder may be obtained, is:
-------------------------------
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: President and Chief Operating Officer
With respect to the Leased Land, the address of the record owner(s), from which
information concerning the security interest granted hereunder may be obtained,
is:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Attn: ________________________
40. Attorney-in-Fact. Trustor hereby appoints Beneficiary the
attorney-in-fact of Trustor to prepare, sign, file and record one or more
financing statements; any documents of title or registration, or like papers,
and to take any other action deemed necessary, useful or desirable by
Beneficiary to perfect and preserve Beneficiary's security interest against the
rights or interests of third persons.
41. Releases, Extensions, Modifications and Additional Security.
(a) From time to time, Beneficiary may perform any of the following
acts without incurring any liability or giving notice to any person, and without
affecting the personal liability of any person for the payment of the Secured
Obligations (except as provided below), and without affecting the security
hereof for the full amount of the Secured Obligations on all Property remaining
subject hereto, and without the necessity that any sum representing the value of
any portion of the Property affected by the Beneficiary's action be credited on
the Secured Obligations:
37
(i) Release any person liable for payment of any Secured
Obligation;
(ii) Extend the time for payment, or otherwise alter the terms of
payment, of any Secured Obligation;
(iii) Accept additional real or personal property of any kind as
security for any Secured Obligation, whether evidenced by deeds of trust,
mortgages, security agreements or any other instruments of security; or
(iv) Alter, substitute or release any property securing the Secured
Obligations.
(b) From time to time when requested to do so by Beneficiary in
writing, Trustee may perform any of the following acts without incurring any
liability or giving notice to any person:
(i) Consent in writing to the making of any plat or map of the
Property or any part of it;
(ii) Join in granting any easement or creating any restriction
affecting the Property;
(iii) Join in any subordination or other agreement affecting this
Deed of Trust or the lien of it or other agreement or instrument relating
hereto or to the Property or any portion thereof; or
(iv) Reconvey the Property or any part of it without any warranty.
42. Exculpation and Indemnification.
(a) Beneficiary shall not be directly or indirectly liable to Trustor
or any other person as a consequence of any of the following:
(i) Beneficiary's exercise of or failure to exercise any rights,
remedies or powers granted to Beneficiary in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform or discharge any
obligation or liability of Trustor under any agreement related to the
Property or under this Deed of Trust; or
(iii) Any loss sustained by Trustor or any third party resulting from
Beneficiary's failure to lease the Property, or from any other act or
omission of Beneficiary in managing the Property, after an Event of
Default, unless the loss is caused by the willful misconduct or bad faith
of Beneficiary.
To the extent permitted by applicable law, Trustor hereby expressly waives and
releases all liability of the types described above, and agrees that no such
liability shall be asserted against or imposed upon Beneficiary.
38
(b) Except for losses caused by the willful misconduct or bad faith of
Trustee or Beneficiary, Trustor agrees to indemnify Trustee and Beneficiary
against and hold them harmless from all losses, damages, liabilities, claims,
causes of action, judgments, court costs, attorneys' fees and other reasonable
legal expenses, cost of evidence of title, cost of evidence of value, and other
reasonable costs and expenses which either may suffer or incur:
(i) In performing any act required or permitted by this Deed of
Trust or any of the other Loan Documents or by law;
(ii) Because of any failure of Trustor to perform any of Trustor's
obligations; or
(iii) Because of any alleged obligation of or undertaking by
Beneficiary to perform or discharge any of the representations, warranties,
conditions, covenants or other obligations in any document relating to the
Property other than the Loan Documents.
This agreement by Trustor to indemnify Trustee and Beneficiary shall survive the
release and cancellation of any or all of the Secured Obligations and the full
or partial release and/or reconveyance of this Deed of Trust.
(c) Trustor shall pay all amounts arising under the indemnity
obligations of this Deed of Trust immediately upon demand by Trustee or
Beneficiary.
43. Relationship to Guaranty. This Deed of Trust has been executed
pursuant to and is subject to the terms of the Guaranty executed concurrently
herewith and Trustor agrees to observe and perform all provisions contained
therein. If and to the extent of any conflict between the provisions of the
Guaranty and the provisions of this Deed of Trust, the provisions of this Deed
of Trust shall control.
44. Relationship to Security Agreement. Concurrently herewith, Trustor
is entering into the Security Agreement with Beneficiary with respect to the
Personal Property. As provided above, the terms of said Security Agreement
shall, with respect to the Personal Property and the security interest therein
granted hereby, supplement the terms of this Deed of Trust and, if and to the
extent of any conflict with the terms hereof applicable to said security
interest and Personal Property, shall, to the extent enforceable, control.
Nothing in this Section 44 shall be deemed or construed, however, to impair the
rights of Beneficiary to conduct one or more Trustee's Sales at which real and
personal property are sold together pursuant to the laws applicable to the sale
of real property.
45. Intentionally Omitted.
46. Severability. If any provision in or obligation under this Deed of
Trust shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
39
47. Loan Statement Fees. Trustor shall pay the amount demanded by
Beneficiary or its authorized loan servicing agent for any statement regarding
the obligations secured hereby; provided, however, that such amount may not
exceed the maximum amount allowed by law at the time request for the statement
is made.
48. Notices.
(a) Methods; Addresses. All notices, requests and demands to be made
hereunder to the parties hereto shall be in writing and shall be given by any of
the following means: (i) personal service; (ii) electronic communication,
whether by telex, telegram or telecopying (if confirmed in writing sent by
registered or certified, first class mail, return receipt requested); or (iii)
registered or certified, first class mail, return receipt requested. Such
addresses may be changed by notice to the other parties given in the same manner
as provided above. Any notice, demand or request sent pursuant to either (i) or
(ii) of this Section shall be deemed received upon such personal service or upon
dispatch by electronic means, and, if sent pursuant to (iii) shall be deemed
received three (3) days following deposit in the mail.
To Beneficiary: First Interstate Bank of Nevada, N.A.
Gaming Industry Division
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx, V.P.
To Trustor: ________________________________
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: President and Chief Operating Officer
With a copy to:________________________________
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
And a copy to: ________________________________
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
To Trustee: ________________________________
--------------------------------
--------------------------------
40
(b) Reliance on Faxes. Each party hereto (a "Recipient") who
receives from another party hereto (a "Sender") by electronic facsimile
transmission (telecopier or fax) any writing which appears to be signed by an
authorized signatory of that Sender is authorized to rely and act upon that
writing in the same manner as if the original signed writing was in the
possession of the Recipient upon oral confirmation of that Sender to the
Recipient that the writing was signed by an authorized signatory of that Sender
and is intended by that Sender to be relied upon by the Recipient. Each party
transmitting any writing to any other party by electronic facsimile transmission
agrees to forward immediately to that Recipient, by expedited means (for next
day delivery, if possible), or by first class mail if the Recipient so agrees,
the signed hard copy of that writing, unless the Recipient expressly agrees to
some other disposition of the original by the Sender.
49. Governing Law. THIS DEED OF TRUST SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEVADA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE
EXTENT THAT APPLICABLE LAW PROVIDES THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEVADA.
50. Consent to Jurisdiction and Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST TRUSTOR ARISING OUT OF OR RELATING TO THIS DEED OF
TRUST MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN
THE STATE OF NEVADA, AND BY EXECUTION AND DELIVERY OF THIS DEED OF TRUST TRUSTOR
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS DEED OF TRUST. Trustor
hereby agrees that service of all process in any such proceeding in any such
court may be made by registered or certified mail, return receipt requested, to
Trustor at its address provided in this Deed of Trust, such service being hereby
acknowledged by Trustor to be sufficient for personal jurisdiction in any action
against Trustor in any such court and to be otherwise effective and binding
service in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of Beneficiary to
bring proceedings against Trustor in the courts of any other jurisdiction.
51. Waiver of Jury Trial. TRUSTOR AND BENEFICIARY HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS DEED OF TRUST. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
without limitation contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Trustor and Beneficiary each acknowledge
that this waiver is a material inducement for Trustor and Beneficiary to enter
into a business relationship, that Trustor and Beneficiary have already relied
on this waiver in entering into this Deed of Trust and that each will continue
to rely on this waiver in their related future dealings. Trustor and Beneficiary
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal
41
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS DEED OF TRUST. In the event of
litigation, this Deed of Trust may be filed as a written consent to a trial by
the court.
42
IN WITNESS WHEREOF, Trustor has executed this instrument as of the
day and year first above written.
TRUSTOR:
---------------------------------,
a _______________________________
By:__________________________________
Its:___________________________
STATE OF ____________________ )
) ss
COUNTY OF ___________________ )
This instrument was acknowledged before me on _________________,
1995, by ____________________________________ as ______________________________
of/for_____________________________.
WITNESS my hand and official seal.
----------------------------------
[SEAL]
EXHIBIT A
Legal Description
Exhibit A-1 -- Legal Description of Leased Land
Exhibit A-2 -- Legal Description of Fee Land
1
EXHIBIT B
Schedule of Ground Leases
1
EXHIBIT C
Schedule of Development Contracts
1. Agreement Concerning Development of Golf Course and Residential
Housing, dated February 3, 1995, by and between Players Mesquite Golf
Club, Inc. and River View Limited Liability Company.
2. Agreement, dated April 18, 1995, by and among Players Nevada, Inc.,
Players Mesquite Land, Inc., Xxxxx X Xxxxx, Xxxx X. Xxxxx, and Xxxxx
Dairy, Inc.
3. Amendment Agreement, dated June 2, 1995, by and among Players Mesquite
Golf Club, Inc., River View Limited Liability Company, Players Nevada,
Inc., Players Mesquite Land, Inc., Hafen Dairy, Inc., Xxxxx X Xxxxx,
Xxxx X. Xxxxx, and Mesquite Mart, Inc.
4. Memorandum of Agreement, dated June 2, 1995, between Players Mesquite
Golf Club, Inc. and River View Limited Liability Company.
5. Joint Declaration of Covenants and Restrictions, dated June 2, 1995,
by Xxxxx X Xxxxx, Xxxx X. Xxxxx, Players Nevada, Inc., and Players
Mesquite Land, Inc.
6. Easement Agreement, (Flood Control) dated June 2, 1995, by and between
Xxxxx X Xxxxx, Xxxx X. Xxxxx, and Players Mesquite Golf Club, Inc.
7. Easement Agreement, (Water Storage Pond) dated June 2, 1995, by and
between River View Limited Liability Company and Players Mesquite Gold
Club, Inc.
8. Easement Agreement, (Golf Course Cart Paths) dated June 2, 1995, by
and between River View Limited Liability Company and Players Mesquite
Gold Club, Inc.
9. Grant of Temporary Access Easement, dated June 2, 1995, by River View
Limited Liability Company, Xxxxx X Xxxxx, Xxxx X. Xxxxx, Players
Mesquite Golf Club, Inc.
10. Outdoor Advertising Agreement between Mesquite Mart, Inc. and Players
Nevada, Inc.
11. Amendment to Outdoor Advertising Agreement, dated June 2, 1995,
between Mesquite Mart, Inc. and Players Nevada, Inc.
2
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DESCRIPTION OF REAL PROPERTY COLLATERAL. . . . . . . . . . . . . . . . . 1
DESCRIPTION OF PERSONAL PROPERTY COLLATERAL. . . . . . . . . . . . . . . 3
1. Certain Representations and Warranties of Trustor . . . . . . . 8
2. Payment of Obligations. . . . . . . . . . . . . . . . . . . . . 8
3. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . 8
4. Maintenance of Property . . . . . . . . . . . . . . . . . . . . 8
5. Environmental Obligations.. . . . . . . . . . . . . . . . . . . 9
6. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(a) Types and Amounts Required . . . . . . . . . . . . . . . . 10
(b) Uniform Policy Requirements. . . . . . . . . . . . . . . . 13
(c) Blanket and Umbrella Policies. . . . . . . . . . . . . . . 14
(d) Evidence of Insurance. . . . . . . . . . . . . . . . . . . 14
(e) Procurement by Beneficiary . . . . . . . . . . . . . . . . 14
(f) Reserve Fund . . . . . . . . . . . . . . . . . . . . . . . 15
(g) Replacement Cost . . . . . . . . . . . . . . . . . . . . . 15
(h) Separate Insurance . . . . . . . . . . . . . . . . . . . . 15
(i) Compliance with Insurance Requirements . . . . . . . . . . 16
(j) Assignment of Policies upon Foreclosure. . . . . . . . . . 16
(k) Waiver of Subrogation. . . . . . . . . . . . . . . . . . . 16
(l) Requirements Supplemental. . . . . . . . . . . . . . . . . 16
7. Casualties; Insurance Proceeds. . . . . . . . . . . . . . . . . 16
(a) Notice of Casualties . . . . . . . . . . . . . . . . . . . 16
(b) Payment of Proceeds. . . . . . . . . . . . . . . . . . . . 16
(c) Use in Restoration . . . . . . . . . . . . . . . . . . . . 17
(d) Application by Beneficiary . . . . . . . . . . . . . . . . 17
(e) Duty to Restore. . . . . . . . . . . . . . . . . . . . . . 17
8. Taxes and Impositions . . . . . . . . . . . . . . . . . . . . . 18
(a) Payment by Trustor . . . . . . . . . . . . . . . . . . . . 18
(b) New Impositions. . . . . . . . . . . . . . . . . . . . . . 18
(c) Proof of Payment . . . . . . . . . . . . . . . . . . . . . 18
(d) Contest of Assessments . . . . . . . . . . . . . . . . . . 18
(e) Reserve Fund . . . . . . . . . . . . . . . . . . . . . . . 19
i
(f) Joint Assessment . . . . . . . . . . . . . . . . . . . . . 19
(g) Tax Service. . . . . . . . . . . . . . . . . . . . . . . . 20
9. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10. Leaseholds, Leases, Easements, and Servitudes . . . . . . . . . 20
(a) Leaseholds and Leases. . . . . . . . . . . . . . . . . . . 20
(b) Easement . . . . . . . . . . . . . . . . . . . . . . . . . 25
11. Further Acts. . . . . . . . . . . . . . . . . . . . . . . . . . 25
12. Assignment of Rents . . . . . . . . . . . . . . . . . . . . . . 25
(a) Assignment to Beneficiary; Trustor's Limited License to
Collect Prior to Default . . . . . . . . . . . . . . . . . 25
(b) No Other Assignments . . . . . . . . . . . . . . . . . . . 26
13. Actions Affecting Property. . . . . . . . . . . . . . . . . . . 26
14. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . 26
15. Due on Sale . . . . . . . . . . . . . . . . . . . . . . . . . . 27
16. Partial or Late Payments. . . . . . . . . . . . . . . . . . . . 27
17. Reconveyance By Trustee . . . . . . . . . . . . . . . . . . . . 28
18. Right of Beneficiary and Trustee to Appear. . . . . . . . . . . 28
19. Performance by Trustee or Beneficiary . . . . . . . . . . . . . 28
20. Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . 29
21. Invalidity of Lien. . . . . . . . . . . . . . . . . . . . . . . 29
22. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23. Events of Default . . . . . . . . . . . . . . . . . . . . . . . 29
24. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(a) Acceleration . . . . . . . . . . . . . . . . . . . . . . . 29
(b) Receiver . . . . . . . . . . . . . . . . . . . . . . . . . 29
(c) Entry. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(d) Cure; Protection of Security . . . . . . . . . . . . . . . 30
(e) Uniform Commercial Code Remedies . . . . . . . . . . . . . 31
(f) Judicial Action. . . . . . . . . . . . . . . . . . . . . . 31
(g) Power of Sale. . . . . . . . . . . . . . . . . . . . . . . 31
(h) Single or Multiple Foreclosure Sales . . . . . . . . . . . 32
ii
25. Costs of Enforcement. . . . . . . . . . . . . . . . . . . . . . 32
26. Remedies Cumulative and Not Exclusive . . . . . . . . . . . . . 33
27. Credit Bids . . . . . . . . . . . . . . . . . . . . . . . . . . 33
28. Application of Foreclosure Sale Proceeds. . . . . . . . . . . . 33
29. Application of Rents and Other Sums . . . . . . . . . . . . . . 34
30. Incorporation of Certain Nevada Covenants . . . . . . . . . . . 34
31. Substitution of Trustee . . . . . . . . . . . . . . . . . . . . 34
32. Binding Nature. . . . . . . . . . . . . . . . . . . . . . . . . 35
33. Acceptance of Trust; Resignation by Trustee . . . . . . . . . . 35
34. Full Performance Required; Survival of Warranties . . . . . . . 35
35. Waiver of Certain Rights By Trustor . . . . . . . . . . . . . . 35
36. Construction. . . . . . . . . . . . . . . . . . . . . . . . . . 35
37. Priority. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
38. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
39. Financing Statement . . . . . . . . . . . . . . . . . . . . . . 36
40. Attorney-in-Fact. . . . . . . . . . . . . . . . . . . . . . . . 37
41. Releases, Extensions, Modifications and Additional Security . . 37
42. Exculpation and Indemnification . . . . . . . . . . . . . . . . 38
43. Relationship to Guaranty. . . . . . . . . . . . . . . . . . . . 38
44. Relationship to Security Agreement. . . . . . . . . . . . . . . 39
45. Relationship to Environmental Indemnity . . . . . . . . . . . . 39
46. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . 39
47. Loan Statement Fees . . . . . . . . . . . . . . . . . . . . . . 39
iii
48. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(a) Methods; Addresses . . . . . . . . . . . . . . . . . . . . 39
(b) Reliance on Faxes. . . . . . . . . . . . . . . . . . . . . 40
49. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 40
50. Consent to Jurisdiction and Service of Process. . . . . . . . . 40
51. Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . 41
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
EXHIBIT A - Legal Description . . . . . . . . . . . . . . . . . . . . . .44
EXHIBIT B - Schedule of Ground Leases . . . . . . . . . . . . . . . . . .45
EXHIBIT C - Schedule of Development Contracts . . . . . . . . . . . . . .46
iv
