EXHIBIT 10.30
Recording Requested By and recorded
counterparts should be returned to:
Xxxxxxxxx X. Xxxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
DEED OF TRUST, ASSIGNMENT OF RENTS, LEASES AND SECURITY
AGREEMENT
MADE BY
COAST HOTELS AND CASINOS, INC.
A NEVADA CORPORATION,
AS TRUSTOR,
TO
NATIONAL TITLE COMPANY
A NEVADA CORPORATION,
AS TRUSTEE,
FOR THE BENEFIT OF
FIRSTAR BANK OF MINNESOTA, N.A.
AS BENEFICIARY
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THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND
IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF XXXXX COUNTY,
NEVADA UNDER THE NAMES OF COAST HOTELS AND CASINOS, INC. AS DEBTOR AND FIRSTAR
BANK OF MINNESOTA, N.A. AS SECURED PARTY.
THIS INSTRUMENT SECURES FUTURE ADVANCES; BUT THE MAXIMUM AMOUNT OF
PRINCIPAL SECURED, FOR PURPOSES OF SECTION 106.360 OF THE NEVADA REVISED
STATUTES, IS $16,800,000.
TABLE OF CONTENTS
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Page
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ARTICLE I COVENANTS OF TRUSTOR......................................................... 15
1.1. Performance of Loan Documents.......................................... 15
1.2. General Representations, Covenants and Warranties...................... 15
1.3. Compliance with Legal Requirements..................................... 16
1.4. Taxes.................................................................. 16
1.5. Insurance.............................................................. 16
1.6. Condemnation........................................................... 19
1.7. Care of Trust Estate................................................... 19
1.8. Space Leases........................................................... 20
1.9. Further Encumbrance.................................................... 21
1.10. Partial Releases of Trust Estate....................................... 22
1.11. Further Assurances..................................................... 23
1.12. Security Agreement and Financing Statements............................ 24
1.13. Assignment of Rents.................................................... 27
1.14. Expenses............................................................... 27
1.15. Beneficiary's Cure of Trustor's Default................................ 28
1.16. Use of Land............................................................ 28
1.17. Compliance with Permitted Lien Agreements.............................. 28
1.18. Defense of Actions..................................................... 29
1.19. Affiliates............................................................. 29
1.20. Title Insurance........................................................ 29
ARTICLE II THE LEASES................................................................... 29
2.1. Status of Leases....................................................... 30
2.2. Performance of Leases.................................................. 30
2.3. Cure by Beneficiary.................................................... 30
2.4. No Merger of Estates................................................... 31
2.5. No Assignment of Leases................................................ 31
2.6. Maintenance of Leases.................................................. 31
2.7. Treatment of the Leases in Bankruptcy.................................. 31
ARTICLE 3 CORPORATE LOAN PROVISIONS...................................................... 32
3.1. Interaction with Indenture............................................. 32
3.2. Other Collateral....................................................... 33
ARTICLE IV DEFAULTS AND REMEDIES........................................................ 33
4.1. Event of Default....................................................... 33
4.2 Accleration of Maturity................................................ 33
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4.3. Protective Advances.................................................... 34
4.4. Institution of Equity Proceedings...................................... 34
4.5. Beneficiary's Power of Enforcement..................................... 34
4.6. Beneficiary's Right to Enter and Take Possession, Operate and Apply
Income.............................................................. 36
4.7. Leases................................................................. 37
4.8. Purchase by Beneficiary................................................ 38
4.9. Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws................................................................ 38
4.10. Receiver............................................................... 38
4.11. Suits to Protect the Trust Estate...................................... 39
4.12. Proofs of Claim........................................................ 39
4.13. Trustor to Pay the Notes on Any Default in Payment; Application of
Monies by Beneficiary............................................... 40
4.14. Delay or Omission; No Waiver........................................... 40
4.15. No Waiver or One Default to Affect Another............................. 40
4.16. Discontinuance of Proceedings; Position of Parties Restored............ 41
4.17. Remedies Cumulative.................................................... 42
4.18. Interest After Event of Default........................................ 43
4.19. Foreclosure; Expenses of Litigation.................................... 43
4.20. Deficiency Judgments................................................... 44
4.21. Waiver of Jury Trial................................................... 44
4.22. Exculpation of Beneficiary............................................. 44
ARTICLE V RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS
RELATING TO TRUSTEE.......................................................... 45
5.1. Exercise of Remedies by Trustee........................................ 45
5.2. Rights and Privileges of Trustee....................................... 45
5.3. Resignation or Replacement of Trustee.................................. 45
5.4. Authority of Beneficiary............................................... 46
5.5. Effect of Appointment of Successor Trustee............................. 46
5.6. Confirmation of Transfer and Succession................................ 46
5.7. Ratification........................................................... 47
5.8. Exculpation............................................................ 47
5.9. Endorsement and Execution of Documents................................. 47
5.10. Multiple Trustees..................................................... 47
ARTICLE VI MISCELLANEOUS PROVISIONS...................................................... 48
6.1. Heirs, Successors and Assigns Included in Parties...................... 48
6.2. Addresses for Notices, Etc............................................. 50
6.3. Change of Notice Address............................................... 50
6.4. Headings............................................................... 50
6.5. Invalid Provisions to Affect No Others................................. 50
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6.6. Changes and Priority Over Intervening Liens............................ 50
6.7. Estoppel Certificates.................................................. 51
6.8. Governing Law.......................................................... 51
6.9. Required Notices....................................................... 51
6.10. Reconveyance........................................................... 52
6.11. Attorneys' Fees........................................................ 52
6.12. Late Charges........................................................... 52
6.13. Cost of Accounting..................................................... 52
6.14. Right of Entry......................................................... 52
6.15. Corrections............................................................ 53
6.16. Statute of Limitations................................................. 53
6.17. Subrogation............................................................ 53
6.18. Joint and Several Liability............................................ 53
6.19. Context................................................................ 53
6.20. Time................................................................... 54
6.21. Interpretation......................................................... 54
6.22. Effect of NRS (S) 107.030.............................................. 54
6.23. Amendments............................................................. 54
6.24. No Conflicts........................................................... 54
ARTICLE VII POWER OF ATTORNEY........................................................... 54
7.1. Grant of Power......................................................... 55
7.2. Possession and Completion.............................................. 55
7.3. Plans and Specifications............................................... 55
7.4. Employment of Others................................................... 55
7.5. Security Guards........................................................ 55
7.6. Compromise Claims...................................................... 55
7.7. Legal Proceedings...................................................... 55
7.8. Other Acts............................................................. 55
SCHEDULE A LAND DESCRIPTION, INCLUDING LEASE DESCRIPTION
SCHEDULE A-1 GOLD COAST LAND DESCRIPTION
SCHEDULE X-0 XXXXXX XXXX XXXX DESCRIPTION
SCHEDULE A-3 WAREHOUSE LAND DESCRIPTION
SCHEDULE A-4 BARBARY COAST LAND DESCRIPTION
SCHEDULE A-5 PARKING LOT LAND DESCRIPTION
SCHEDULE A-6 ORLEANS LAND DESCRIPTION
DEED OF TRUST, ASSIGNMENT OF RENTS, LEASES AND SECURITY
AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, LEASES AND SECURITY
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AGREEMENT (hereinafter called "DEED OF TRUST") is made and effective as of
November 21, 1997, by COAST HOTELS AND CASINOS, INC., a Nevada corporation, as
Trustor, whose address is 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 to
NATIONAL TITLE COMPANY, a Nevada corporation, whose address is 000 X. Xxxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, as Trustee, for the benefit of FIRSTAR BANK OF
MINNESOTA, N.A., a National Association, as trustee under that certain Indenture
dated as of even date herewith among Firstar Bank of Minnesota, N.A., as
trustee, Trustor as issuer, and Coast Resorts, Inc., a Nevada corporation, as
guarantor, whose address is 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 0000-0000
("BENEFICIARY").
WHEREAS, Coast Hotels and Casinos, Inc., as trustor, has entered into that
certain Deed of Trust, Assignment of Rents, Leases and Security Agreement dated
as of January 30, 1996 (the "1996 Deed of Trust") with National Title Company,
as trustee, for the benefit of American Bank National Association (the present
successor in interest of which is Firstar Bank of Minnesota, N.A., as trustee
(the "1996 Trustee")) as trustee under that certain Indenture dated as of
January 30, 1996 among the 1996 Trustee, Coast Hotels and Casinos, Inc., as
issuer, and Coast Resorts, Inc., and Coast West, Inc., as guarantors, which 1996
Deed of Trust is recorded as Document Xx. 00000, Xxxx Xx. 000000 of the Official
Records, Xxxxx County, Nevada.
WHEREAS, the 1996 Deed of Trust and this Deed of Trust are subject to the
terms and conditions of the Pari Passu Intercreditor Agreement dated as of
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November 21, 1997 (the "Intercreditor Agreement") among the 1996 Trustee,
Trustor (as herein defined), the Guarantor (as herein defined), Coast West,
Inc., a Nevada corporation and the Trustee (together, the 1996 Trustee and the
Trustee are, the Pari Passu Parties) which sets forth the agreement of the
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parties thereto as to the nature of the priority of the liens, mortgages,
pledges and security interests held by the Pari Passu Parties in the Pari Passu
---- ----- ---- -----
Collateral (as defined in the Intercreditor Agreement) which includes, among
other things, the Trust Estate, as defined in this Deed of Trust, all as more
particularly defined in the Intercreditor Agreement and certain other matters
related thereto providing equal priority between the 1996 Deed of Trust and this
Deed of Trust recorded herewith.
DEFINITIONS - As used in this Deed of Trust, the following terms have the
meanings hereinafter set forth:
"ACCOUNTS RECEIVABLE" shall have the meaning set forth in Section 9-
106 (NRS 104.9106) of the UCC for the term "account."
"APPURTENANT RIGHTS" means all and single tenements, hereditaments,
rights, reversions, remainders, development rights, privileges, benefits,
easements (in gross or appurtenant), rights-of-way, gores or strips of
land, streets, ways, alleys, passages, sewer rights, water courses, water
rights and powers, and all appurtenances whatsoever and claims or demands
of Trustor at law or in equity in any way belonging, benefitting, relating
or appertaining to the Land, the airspace over the Land, the Improvements
or any
of the Trust Estate encumbered by this Deed of Trust, or which hereinafter
shall in any way belong, relate or be appurtenant thereto, whether now
owned or hereafter acquired by Trustor.
"BANKRUPTCY" means, with respect to any Person, that such Person is or
becomes bankrupt or Insolvent or: (a) is the subject of any order for
relief under any Bankruptcy Law; (b) commences a voluntary proceeding under
any Bankruptcy Law; (c) consents to the entry of an order for relief in an
involuntary proceeding under any Bankruptcy Law; (d) consents to the
appointment of, or taking possession by any Receiver; (e) makes any
assignment for the benefit of creditors; (f) is unable or fails, or admits
in writing its inability, to pay its debts as such debts become due; (g) is
the subject of any involuntary proceeding under any Bankruptcy Law or
involuntary appointment of a Receiver, and such involuntary proceeding or
appointment is not dismissed and terminated within 60 days; (h) is the
subject of any other proceeding or relief similar to any of the foregoing
under any law; (i) is the subject of a warrant of attachment, execution, or
similar process with respect to such Person or any substantial part of such
Person's property, which warrant or similar process remains in effect for
sixty days without having been bonded or discharged; or (j) otherwise
ceases to do business as a going concern.
"BARBARY COAST HOTEL AND CASINO" means the hotel and casino as
currently constructed and located at the intersection of East Flamingo Road
and the Las Vegas Strip, Las Vegas, Nevada.
"BARBARY COAST LEASE" means that certain Lease Agreement dated as of
May 1, 1992 by and between Xxxxx Enterprises and Trustor, as successor in
interest to Barbary Coast Hotel & Casino, covering the real property
described in Schedule A-4. Attached hereto as Exhibit 1 is a Landlord-
Mortgagee Agreement executed by Xxxxx Enterprises in favor of Beneficiary
consenting to this Deed of Trust and granting Beneficiary certain rights
under the Barbary Coast Lease.
"BENEFICIARY" means Firstar Bank of Minnesota, N.A., a National
Association, as trustee under the Indenture and any substitute trustee
designated from time to time under the Indenture.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in the State of Nevada or the City of New
York are not required to be open.
"DEED OF TRUST" means this Deed of Trust as it may be amended,
increased or modified from time to time.
"ENVIRONMENTAL LAWS" means any and all laws and Legal Requirements
relating to environmental matters, pollution, or hazardous substances,
including: the
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Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. (S)(S) 1801 et seq.); the Nevada Hazardous Materials Act
(NRS Chapter 459); and other Laws that may form the basis of any claim,
action, demand, suit, proceeding, hearing, or notice of violation that is
based on or related to the generation, manufacture, processing,
distribution, use, existence, treatment, storage, disposal, transport, or
handling, or the emission, discharge, release, or threatened release into
the environment, of any hazardous substance, or other threat to the
environment.
"EVENT OF DEFAULT" has the meaning set forth in Section 4.1 hereof.
"EXCLUDED ASSETS" means (i) any equipment subject to Liens in
existence as of the date of the 1996 Indenture (as defined in the
Indenture) securing Existing Indebtedness (as defined in the Indenture);
(ii) any agreement with a third party that, pursuant to its terms,
prohibits the grant of a lien on such agreement; provided that the Trustor
shall use its best efforts to obtain such third party's consent to
assignment of all material agreements: (iii) Gaming Licenses (as defined in
the Indenture) or any other governmental approval or permit, to the extent
that, under the terms and conditions of such approval or under applicable
law, cannot be subjected to a Lien in favor of the Beneficiary without the
approval of the relevant governmental authority, to the extent that such
approval has not been obtained: (iv) the Designated Assets (as defined in
the 1996 Indenture) and the Rancho Road Property (as defined in the 1996
Indenture), after the release of any such assets from the Lien securing the
obligations under the Indenture and the Notes; and (v) any FF&E (A) the
purchase of which was not financed with the proceeds of the Notes, (B) that
Trustor is permitted to encumber and has encumbered pursuant to clause (ii)
of the second paragraph of Section 4.9 of the Indenture and (C) in which
Beneficiary is prohibited from maintaining a security interest pursuant to
the terms of the FF&E Financing Agreement (as defined herein) encumbering
such FF&E.
"FEE LAND" means the real property situated in the County of Xxxxx,
State of Nevada, more specifically described in Schedules X-0, X-0 xxx X-0
attached hereto and incorporated herein by reference, including any after
acquired title thereto.
"FF&E" means all furniture, fixtures, equipment, gaming equipment,
appurtenances and personal property now or in the future contained in, used
in connection with, attached to, or otherwise useful or convenient to the
use, operation, or occupancy of, or placed on, but unattached to, any part
of the Land or Improvements whether or not the same constitutes real
property or fixtures in the State of Nevada, including all removable window
and floor coverings, all furniture and furnishings, heating, lighting,
plumbing, ventilating, air conditioning, refrigerating, incinerating and
elevator and escalator plants, cooking facilities, vacuum cleaning systems,
public address and communications systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, motors, machinery,
pipes, appliances, equipment, fittings, fixtures, and building materials,
together with all venetian blinds, shades, draperies,
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drapery and curtain rods, brackets, bulbs, cleaning apparatus, mirrors,
lamps, ornaments, cooling apparatus and equipment, ranges and ovens,
garbage disposals, dishwashers, mantels, and any and all such property
which is at any time installed in, affixed to or placed upon the Land or
Improvements.
"FF&E FINANCING AGREEMENT" shall have the meaning ascribed to that
term in Section 1.9(d) hereof.
"GOLD COAST HOTEL AND CASINO" means the hotel and casino as currently
constructed and located at 0000 Xxxx Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx.
"GOVERNMENTAL AUTHORITY" means any agency, authority, board, bureau,
commission, department, office, public entity, or instrumentality of any
nature whatsoever of the United States federal or foreign government, any
state, province or any city or other political subdivision or otherwise,
whether now or hereafter in existence, or any officer or official thereof,
including, without limitation, any Gaming Authority.
"GUARANTOR(S)" means each of (i) Coast Resorts, Inc., and (ii) any
other Affiliate of Trustor that now or hereafter is obligated under a Note
Guarantee.
"IMPOSITION" means any taxes, assessments, water rates, sewer rates,
maintenance charges, other governmental impositions and other charges now
or hereafter levied or assessed or imposed against the Trust Estate or any
part thereof.
"IMPROVEMENTS" means (1) all the buildings, structures, facilities and
improvements of every nature whatsoever now or hereafter situated on the
Land or any real property encumbered hereby, and (2) all fixtures,
machinery, appliances, goods, building or other materials, equipment,
including without limitation all gaming equipment and devices, and all
machinery, equipment, engines, appliances and fixtures for generating or
distributing air, water, heat, electricity, light, fuel or refrigeration,
or for ventilating or sanitary purposes, or for the exclusion of vermin or
insects, fuel or refrigeration, or for ventilating or sanitary purposes, or
for the exclusion of vermin or insects, or for the removal of dust, refuse
or garbage; all wall-beds, wall-safes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumb-waiters, awnings, window shades, venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, computers, drapes, drapery rods
and brackets, mirrors, mantels, screens, linoleum, carpets and carpeting,
plumbing, bathtubs, sinks, basins, pipes, faucets, water closets, laundry
equipment, washers, dryers, ice-boxes and heating units; all kitchen and
restaurant equipment, including but not limited to silverware, dishes,
menus, cooking utensils, stoves, refrigerators, ovens, ranges, dishwashers,
disposals, water heaters, incinerators, furniture, fixtures and
furnishings, communication systems, and equipment; all cocktail lounge
supplies, including but not limited to bars, glassware, bottles and
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tables used in connection with the Land; all chaise lounges, hot tubs,
swimming pool heaters and equipment and all other recreational equipment
(computerized and otherwise), beauty and xxxxxx equipment, and maintenance
supplies used in connection with the Land; all amusement rides and
attractions attached to the Land, all specifically designed installations
and furnishings, and all furniture, furnishings and personal property of
every nature whatsoever now or hereafter owned or leased by Trustor or in
which Trustor has any rights or interest and located in or on, or attached
to, or used or intended to be used or which are now or may hereafter be
appropriated for use on or in connection with the operation of the Land or
any real or personal property encumbered hereby or any other Improvements,
or in connection with any construction being conducted or which may be
conducted thereon, and all extensions, additions, accessions, improvements,
betterments, renewals, substitutions, and replacements to any of the
foregoing, and all of the right, title and interest of Trustor in and to
any such property, which, to the fullest extent permitted by law, shall be
conclusively deemed fixtures and improvements and a part of the real
property hereby encumbered.
"INDENTURE" means that certain Indenture, dated as of November 21,
1997, by and among Beneficiary, as trustee, Trustor, as issuer, and
Guarantor, as such Indenture is amended or supplemented from time to time
in accordance with the terms thereof.
"INSOLVENT" means with respect to any person or entity, that such
person or entity shall be deemed to be insolvent if he or it is unable to
pay his or its debts as they became due and/or if the fair market value of
his or its assets does not exceed his or its aggregate liabilities.
"INTANGIBLE COLLATERAL" means (a) the rights to use all names and all
derivations thereof now or hereafter used by in connection with the Land or
Improvements, including, without limitation, the names "Orleans Hotel,"
"Barbary Coast" and "Gold Coast" in the State of Nevada, including any
variations thereon, together with the goodwill associated therewith, and
all names, logos, and designs used by Trustor, or in connection with the
Land or in which Trustor has rights, with the exclusive right to use such
names, logos and designs wherever they are now or hereafter used in
connection with the Resorts, and any and all other trade names, trademarks
or service marks, whether or not registered, now or hereafter used in the
operation of the Resorts, including, without limitation, any interest as a
lessee, licensee or franchisee, and, in each case, together with the
goodwill associated therewith; (b) subject to the absolute assignment
contained herein, the Rents; (c) all securities of Trustor's subsidiaries,
whether now in existence of hereafter incorporated or formed; (d) any and
all books, records, customer lists, concession agreements, supply or
service contracts, licenses, permits, governmental approvals (to the extent
such licenses, permits and approvals may be pledged under applicable law),
signs, goodwill, casino and hotel credit and charge records, supplier
lists, checking accounts, safe deposit boxes (excluding the contents of
such deposit boxes owned by persons other than Trustor and its
subsidiaries), cash, instruments, chattel
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papers, including inter-company notes and pledges, documents, unearned
premiums, deposits, refunds, including but not limited to income tax
refunds, prepaid expenses, rebates, tax and insurance escrow and impound
accounts, if any, actions and rights in action, and all other claims,
including without limitation condemnation awards and insurance proceeds,
and all other contract rights and general intangibles resulting from or
used in connection with the operation of the Trust Estate and in which
Trustor now or hereafter has rights; (e) all of Trustor's documents,
instruments, contract rights, and general intangibles including, without
limitation, all permits, licenses, franchises and agreements required for
the use, occupancy or operation of any Improvements (to the extent such
licenses, permits and approvals are not prohibited from being pledged under
applicable law); (f) general intangibles, vacation license resort
agreements or other time share license or right to use agreements,
including without limitation all rents, issues, profits, income and
maintenance fees resulting therefrom, whether any of the foregoing is now
owned or hereafter acquired; and (g) any and all markers.
"LAND" means the Fee Land and the Leased Land.
"LEASED LAND" means the real property situated in the County of Xxxxx,
State of Nevada, more specifically described in Schedules X-0, X-0 xxx X-0
attached hereto and incorporated herein by reference including any after
acquired title thereto.
"LEASES" means the Orleans Lease, the Barbary Coast Lease and the
Parking Lot Lease and all other lease(s) or sublease(s) with respect to the
Land as such (sub) lease(s) may be amended, restated, renewed, modified,
supplemented, or extended from time to time in the future in compliance
with this Deed of Trust, including any options to purchase, extend or renew
provided for in such (sub) lease(s).
"LEGAL REQUIREMENTS" means all applicable restrictive covenants,
applicable zoning and subdivision ordinances and building codes, all
applicable health and Environmental Laws and regulations, all applicable
gaming laws and regulations, and all other applicable laws, ordinances,
rules, regulations, judicial decisions, administrative orders, and other
requirements of any Governmental Authority having jurisdiction over
Trustor, the Trust Estate and/or any Affiliate of Trustor, in effect either
at the time of execution of this Deed of Trust or at any time during the
term hereof, including, without limitation, all Environmental Laws and
Gaming Control Acts.
"LOAN DOCUMENTS" means the Indenture, the Notes, that certain Purchase
Agreement, dated as of November 21, 1997, among the Company, the Guarantor
and the Purchasers (as defined therein), that certain Security Agreement,
dated as of November 21, 1997, by and between Trustor and Beneficiary, that
certain Stock Pledge Agreement, dated as of November 21, 1997, by and
between Coast Resorts, Inc. and Beneficiary, that certain Unsecured
Indemnity Agreement, dated as of November 21, 1997, by and between Trustor
and Beneficiary and any other documents evidencing, guaranteeing or
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securing the Obligations of Trustor under such documents.
"NOTEHOLDERS" means the holders of the Notes.
"NOTES" means Trustor's $16,800,000 10 7/8% First Mortgage Notes due
2001, issued pursuant to the Indenture.
"NRS" means the Nevada Revised Statutes as in effect from time to
time.
"OBLIGATIONS" means the payment and performance of each covenant and
agreement of Trustor contained in this Deed of Trust and the Loan
Documents.
"ORLEANS HOTEL AND CASINO" means the resort constructed in Las Vegas,
Nevada, but excluding (i) any obsolete personal property or real property
improvements determined by Trustor's Board of Directors to be no longer
useful or necessary to the operations or support of the Orleans Hotel and
Casino and (ii) any equipment leased from a third party in the ordinary
course of business.
"ORLEANS LEASE" means that certain Lease, dated as of October 1, 1995,
by and between The Tiberti Company and Trustor, covering the real property
described in Schedule A-6. Attached hereto as Exhibit 2 is a Landlord-
Mortgagee Agreement executed by The Tiberti Company in favor of Beneficiary
consenting to this Deed of Trust and granting Beneficiary certain rights
under the Orleans Lease.
"PARKING LOT LEASE" means that certain Lease, dated as of November 1,
1995, by and between Nevada Power Company and Trustor, as successor in
interest to Barbary Coast Hotel and Casino, covering the real property
described in Schedule A-5. Attached hereto as Exhibit 3 is a Landlord-
Mortgagee Agreement executed by Nevada Power Company in favor of
Beneficiary consenting to this Deed of Trust and granting Beneficiary
certain rights under the Parking Lot Lease.
"PERMITTED DISPOSITIONS" means the sale, transfer, lease or other
disposition of assets in the Trust Estate, in the ordinary course of
business, of inventory held in the ordinary course of business and other
sales, transfers, lease or other dispositions of assets in the Trust
Estate; provided that all provisions of the Indenture are complied with,
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including Section 4.10.
"PERSONAL PROPERTY" has the meaning set forth in Section 1.12.
"PROCEEDS" has the meaning assigned to it under the UCC and, in any
event, shall include but not be limited to (i) any and all proceeds of any
insurance (including without limitation property casualty and title
insurance), indemnity, warranty or guaranty payable from time to time with
respect to any of the Trust Estate; (ii) any and all proceeds in the
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form of accounts, security deposits, tax escrows (if any), down payments
(to the extent the same may be pledged under applicable law), collections,
contract rights, documents, instruments, chattel paper, liens and security
instruments, guarantees or general intangibles relating in whole or in part
to the Resorts and all rights and remedies of whatever kind or nature
Trustor may hold or acquire for the purpose of securing or enforcing any
obligation due Trustor thereunder; (iii) any and all payments in any form
whatsoever made or due and payable from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Trust Estate by any Governmental Authority; (iv) subject to
the absolute assignment contained herein, the Rents or other benefits
arising out of, in connection with or pursuant to any Space Lease of the
Trust Estate; and (v) any and all other amounts from time to time paid or
payable in connection with any of the Trust Estate; provided, however, that
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Trustor is not authorized to dispose of any of the Trust Estate unless such
disposition is a Permitted Disposition.
"RECEIVER" means, with respect to any Person (including Trustor), any
receiver, trustee, custodian, debtor in possession, liquidator,
sequestrator, administrator, conservator, or other successor appointed
(whether by a court or otherwise) pursuant to any creditor's exercise of
remedies against such Person, or pursuant to a Bankruptcy of such Person,
or for purposes of reorganization or liquidation, or otherwise for the
benefit of such Person's creditors, or under any similar circumstances, or
otherwise having similar powers over such Person or its property, whether
such Receiver acts on an interim, temporary, or final basis and whether
such appointment applies to all or any significant portion of such Person's
assets or property, including or not including any of the Trust Estate.
"RESORTS" means the Orleans Hotel and Casino, the Barbary Coast Hotel
and Casino, the Gold Coast Hotel and Casino and any hotel, casino or resort
constructed on the Land in the future.
"RENTS" means all rents, room revenues, income, receipts, issues,
profits, revenues and maintenance fees, room, food and beverage revenues,
license and concession fees, income, proceeds and other benefits to which
Trustor may now or hereafter be entitled from the Land, the Improvements,
the Space Leases or any property encumbered hereby or any business or other
activity conducted by Trustor at the Land or the Improvements.
"SPACE LEASES" means any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreements, and all
other agreements affecting the Trust Estate that Trustor has entered into,
taken by assignment, taken subject to, or assumed, or has otherwise become
bound by, now or in the future, that give any person the right to conduct
its business on, or otherwise use, operate or occupy, all or any portion of
the Land or Improvements and any leases, agreements or arrangements
-8-
permitting anyone to enter upon or use any of the Trust Estate to extract
or remove natural resources of any kind, together with all amendments,
extensions, and renewals of the foregoing entered into in compliance with
this Deed of Trust, together with all rental, occupancy, service,
maintenance or any other similar agreements pertaining to use or occupation
of, or the rendering of services at the Land, the Improvements or any part
thereof.
"SPACE LESSEE(S)" means any and all tenants, licensees, or other
grantees of the Space Leases and any and all guarantors, sureties,
endorsers or others having primary or secondary liability with respect to
such Space Lease.
"TANGIBLE COLLATERAL" means all personal property, goods, equipment,
supplies, building and other materials of every nature whatsoever and all
other tangible personal property constituting a part or portion of the
Resorts and/or used in the operation of the hotels, casinos, restaurants,
stores, parking facilities and all other commercial operations on the Land
or Improvements, including but not limited to communication systems, visual
and electronic surveillance systems and transportation systems and not
constituting a part of the real property subject to the real property lien
of this Deed of Trust and including all property and materials stored
therein in which Trustor has an interest and all tools, utensils, food and
beverage, liquor, uniforms, linens, housekeeping and maintenance supplies,
vehicles, fuel, advertising and promotional material, blueprints, surveys,
plans and other documents relating to the Land or Improvements, and all
construction materials and all furnishings, fixtures and equipment,
including, but not limited to, all gaming equipment and devices which are
or are to be installed and used in connection with the operation of the
Resorts, those items of furniture, fixtures and equipment which are to be
purchased or leased by Trustor, machinery and any other item of person
property in which Trustor now or hereafter own or acquire an interest or
right, and which are used or useful in the construction, operation, use and
occupancy of the Resorts; to the extent permitted by the applicable
contract or applicable law, all gaming and financial equipment, computer
equipment, calculators, adding machines, gaming tables, video game and slot
machines, and any other electronic equipment of every nature used or
located on any part of the Land or Improvements, and all present and future
right, title and interest of Trustor in and to any casino operator's
agreement, license agreement or sublease agreement used in connection with
the Land or Improvements; provided, however, that Tangible Collateral does
not include Excluded Assets.
"TITLE INSURER" means Xxxxxxx Title Guaranty Company.
"TRUST ESTATE" means all of the property described in Granting Clauses
(A) through (Q) below, inclusive, and each item of property therein
described, provided, however, that such term shall not include the property
described in Granting Clause (R) below.
-9-
"TRUSTEE" means National Title Company, a Nevada corporation, or any
successor thereto appointed in accordance with this Deed of Trust.
"TRUSTOR" means Coast Hotels and Casinos, Inc., a Nevada corporation,
and includes not only the original Trustor hereunder, but also any
successors or assigns of the Trust Estate, or any part thereof, at any time
and from time to time, as the case requires.
"UCC" means the Uniform Commercial Code in effect in the State of
Nevada from time to time, NRS chapters 104 and 104A.
The following terms shall have the meaning assigned to such terms in the
Indenture:
AFFILIATE
BANKRUPTCY LAW
CASH EQUIVALENTS
EVENT OF LOSS
GAMING AUTHORITY
GAMING LAWS
GAMING LICENSE
HOLDER
INTERCREDITOR AGREEMENT
LIEN
PERMITTED LIENS
PERSON
In addition, any capitalized terms used in this Deed of Trust which are not
otherwise defined herein shall have the meaning ascribed to such terms in the
Indenture.
-10-
W I T N E S S E T H:
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IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION;
THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, AND FOR THE
PURPOSE OF SECURING in favor of Beneficiary (1) the due and punctual payment of
the indebtedness evidenced by the Notes; (2) the performance of each covenant
and agreement of Trustor contained in the Indenture, herein or in the other Loan
Documents; (3) the payment of all such additional loans or advanced as hereafter
may be made by Beneficiary to Trustor or its successors or assigns when
evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust; provided, however, that any and all future advances by
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Beneficiary to Trustor made for the improvement, protection or preservation of
the Trust Estate, together with interest at the interest rate on the Notes,
shall be automatically secured hereby unless such a note or instrument
evidencing such advances specifically recites that it is not intended to be
secured hereby and (4) the payment of all sums expended or advanced by
Beneficiary under or pursuant to the terms hereof or to protect the security
hereof, together with interest thereon as herein provided, Trustor, in
consideration of the premises, and for the purposes aforesaid, does hereby
ASSIGN, BARGAIN, CONVEY, PLEDGE, RELEASE, HYPOTHECATE, WARRANT, AND TRANSFER
UNTO TRUSTEE IN TRUST FOR THE BENEFIT OF BENEFICIARY AND THE NOTEHOLDERS each of
the following:
(A) The Fee Land and all that certain leasehold estate and interest
of Trustor in and to the Leased Land, together with any and all other,
further or additional, title, estates, interests or rights which may at any
time be acquired by Trustor in or to the Land demised by the Leases and
Trustor expressly agrees that if Trustor shall, at any time prior to
payment in full of all indebtedness secured hereby, acquire fee title to or
any other greater interest in the Land, the lien of this Deed of Trust
shall attach, extend to, cover and be a lien upon such fee simple title or
other greater estate involving real property;
(B) TOGETHER WITH the Improvements;
(C) TOGETHER WITH all Appurtenant Rights;
(D) TOGETHER WITH the Tangible Collateral;
(E) TOGETHER WITH the Intangible Collateral;
(F) TOGETHER WITH (i) all the estate, right, title and interest of
Trustor of, in and to all judgments and decrees, insurance proceeds, awards
of damages and settlements hereafter made resulting from condemnation
proceedings or the taking of any of the property described in Granting
Clauses (A), (B), (C), (D) and (E) hereof or any part thereof under the
power of eminent domain, or for any damage (whether caused by such taking
or otherwise) to the property described in Granting Clauses (A), (B), (C),
(D) and (E) hereof or any part thereof, or to any Appurtenant Rights
thereto, and Beneficiary is
-11-
hereby authorized to collect and receive said awards and proceeds and to
give proper receipts and acquittance therefor, and (subject to the terms
hereof) to apply the same toward the payment of the indebtedness and other
sums secured hereby, notwithstanding the fact that the amount owing thereon
may not then be due and payable; (ii) all proceeds of any sales or other
dispositions of the property or rights described in Granting Clauses (A),
(B), (C), (D) and (E) hereof or any part thereof whether voluntary or
involuntary, provided, however, that the foregoing shall not be deemed to
permit such sales, transfers, or other dispositions except as specifically
permitted herein; and (iii) whether arising from any voluntary or
involuntary disposition of the property described in Granting Clauses (A),
(B), (C), (D) and (E), all Proceeds, products, replacements, additions,
substitutions, renewals and accessions, remainders, reversions and after-
acquired interest in, of and to such property;
(G) TOGETHER WITH the absolute assignment of any Space Leases or any
part thereof that Trustor has entered into, taken by assignment, taken
subject to, or assumed, or has otherwise become bound by, now or in the
future, together with all of the following (including all "Cash Collateral"
within the meaning of the Bankruptcy Law) arising from the Space Leases:
(a) Rents (subject, however, to the aforesaid absolute assignment to
Beneficiary and the conditional permission hereinbelow given to Trustor to
collect the Rents), (b) all guarantees, letters of credit, security
deposits, collateral, cash deposits, and other credit enhancement
documents, arrangements and other measures with respect to the Space
Leases, (c) all of Trustor's right, title, and interest under the Space
Leases, including the following: (i) the right to receive and collect the
Rents from the lessee, sublessee or licensee, or their Successor(s), under
any Space Leases(s) and (ii) the right to enforce against any tenants
thereunder and otherwise any and all remedies under the Space Leases,
including Trustor's right to evict from possession any tenant thereunder or
to retain, apply, use, draw upon, pursue, enforce or realize upon any
guaranty of any Space Lease; to personal property subject to the Space
Leases; and to enforce or exercise, weather at law or in equity or by any
other means, all provisions of the Space Leases and all obligations of the
tenants thereunder based upon (A) any breach of such tenant under the
applicable Space Lease (including any claim that Trustor may have by reason
of a termination, rejection, or disaffirmance of such Space Lease pursuant
to any Bankruptcy Law) and (B) the use and occupancy of the premises
demised, whether or not pursuant to the applicable Space Lease (including
any claim for use and occupancy arising under landlord-tenant law of the
State of Nevada or any Bankruptcy Law). Permission is hereby given to
Trustor, so long as no Event of Default has occurred and is continuing
hereunder, to collect and use the Rents, as they become due and payable,
but not in advance thereof. Upon the occurrence of an Event of Default,
the permission hereby given to Trustor to collect the Rents shall
automatically terminate, but such permission shall be reinstated upon a
cure of such Event of Default. Beneficiary shall have the right, at any
time and from time to time, to notify any Space Lessee of the rights of
Beneficiary as provided by this section;
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Notwithstanding anything to the contrary contained herein, the
foregoing provisions of this Paragraph (G) shall not constitute an
assignment for purposes of security but shall constitute an absolute and
present assignment of the Rents to Beneficiary, subject, however, to the
conditional license given to Trustor to collect and use the Rents as
hereinabove provided; and the existence or exercise of such right of
Trustor shall not operate to subordinate this assignment to any subsequent
assignment, in whole or in part, by Trustor;
(H) TOGETHER WITH all of Trustor's right, title and interest in and
to any and all maps, plans, specifications, surveys, studies, tests,
reports, data and drawings relating to the development of the Land or the
Orleans Hotel and Casino and the construction of the Improvements,
including, without limitation, all marketing plans, feasibility studies,
soils tests, design contracts and all contracts and agreements of Trustor
relating thereto including, without limitation, architectural, structural,
mechanical and engineering plans and specifications, studies, data and
drawings prepared for or relating to the development of the Land or the
Orleans Hotel and Casino or the construction, renovation or restoration of
any of the Improvements or the extraction of minerals, sand, gravel or
other valuable substances from the Land and purchase contracts or any
agreement granting Trustor a right to acquire any land situated within the
County of Xxxxx, State of Nevada;
(I) TOGETHER WITH, to the extent permitted by applicable law, all of
Trustor's right, title, and interest in and to any and all licenses,
permits, variances, special permits, franchises, certificates, rulings,
certifications, validations, exemptions, filings, registrations,
authorizations, consents, approvals, waivers, orders, rights and agreements
(including, without limitation, options, option rights and contract rights)
now or hereafter obtained by Trustor from any Governmental Authority having
or claiming jurisdiction over the Land, the FF&E, the Resorts, or any other
element of the Trust Estate or providing access thereto, or the operation
of any business on, at, or from the Land;
(J) TOGETHER WITH all water stock, water permits and other water
rights relating to the Land;
(K) TOGETHER WITH all oil and gas and other mineral rights, if any,
in or pertaining to the Land and all royalty, leasehold and other rights of
Trustor pertaining thereto;
(L) TOGETHER WITH any and all monies and other property, real or
personal, which may from time to time be subjected to the lien hereof by
Trustor or by anyone on its behalf or with its consent, or which may come
into the possession or be subject to the control of Trustee or Beneficiary
pursuant to this Deed of Trust or any Loan Document, including, without
limitation, any protection advances under this Deed of Trust (provided that
the maximum amount of principal secured does not exceed the amount set
forth on
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the first page of this Deed of Trust); and all of Trustor's right, title,
and interest in and to all extensions, improvements, betterments, renewals,
substitutes for and replacements of, and all additions, accessions, and
appurtenances to, any of the foregoing that Trustor may subsequently
acquire or obtain by any means, or construct, assemble, or otherwise place
on any of the Trust Estate, and all conversions of any of the foregoing; it
being the intention of Trustor that all property hereafter acquired by
Trustor and required by any Loan Document or this Deed of Trust to be
subject to the lien of this Deed of Trust or intended so to be shall
forthwith upon the acquisition thereof by Trustor be subject to the lien of
this Deed of Trust as if such property were now owned by Trustor and were
specifically described in this Deed of Trust and granted hereby or pursuant
hereto, and Trustee and Beneficiary are hereby authorized, subject to
Gaming Laws, to receive any and all such property as and for additional
security for the obligations secured or intended to be secured hereby.
Trustor agrees to take any action as may reasonably be necessary to
evidence and perfect such liens or security interests, including, without
limitation, the execution of any documents necessary to evidence and
perfect such liens or security interests;
(M) TOGETHER WITH any and all Accounts Receivable and all royalties,
earnings, income, proceeds, products, rents, revenues, reversions,
remainders, issues, profits, avails, production payments, and other
benefits directly or indirectly derived or otherwise arising from any of
the foregoing, all of which are hereby assigned to Beneficiary, who, except
as otherwise expressly provided in this Deed of Trust, is authorized to
collect and receive the same, to give receipts and acquittances therefor
and to apply the same to the Obligations secured hereunder, whether or not
then due and payable;
(N) TOGETHER WITH Proceeds of the foregoing property described in
Granting Clauses (A) through (M);
(O) TOGETHER WITH (i) Trustor's rights further to assign, sell,
lease, encumber or otherwise transfer or dispose of the property described
in Granting Clauses (A) through (N) inclusive, above, for debt or
otherwise, except to the extent expressly reserved by Trustor pursuant to
Section 4.10 of the Indenture, or to evidence or secure a Permitted Lien or
Permitted Disposition;
(P) TOGETHER WITH all credits, deposits, options, privileges and
rights of Trustor, as lessee under any Leases; and
(Q) EXPRESSLY EXCLUDING, HOWEVER, the Excluded Assets and FF&E (to
the extent that (i) the purchase of such FF&E was not financed with the
proceeds of the Notes and (ii) Trustor is permitted to enter into a FF&E
Financing Agreement for such FF&E under clause (ii) of the second paragraph
of Section 4.9 of the Indenture and (iii) such FF&E Financing Agreement
prohibits Beneficiary from maintaining a security
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interest in the FF&E covered thereby).
Trustor, for itself and its successors and assigns, covenants and
agrees to and with Trustee that, at the time or times of the execution of
and delivery of these presents or any instrument of further assurance with
respect thereto, Trustor has good right, full power and lawful authority to
assign, grant, convey, warrant, transfer, bargain or sell its interests in
the Trust Estate in the manner and form as aforesaid, and that the Trust
Estate is free and clear of all liens and encumbrances whatsoever, except
the Permitted Liens, and Trustor shall warrant and forever defend the Trust
Estate in the quiet and peaceable possession of Trustee and its successors
and assigns against all and every person or persons lawfully or otherwise
claiming or to claim the whole or any part thereof, except for the
Permitted Liens. Trustor agrees that any greater title to the Trust Estate
hereafter acquired by Trustor during the term hereof shall be automatically
subject hereto.
ARTICLE I
COVENANTS OF TRUSTOR
--------------------
The purchasers of the Notes have been induced to purchase the Notes on the
basis of the following material covenants, all agreed to by Trustor:
I.1. PERFORMANCE OF LOAN DOCUMENTS.
-----------------------------
Trustor shall perform, observe and comply with each and every
provision hereof, and with each and every provision contained in the Loan
Documents and shall promptly pay to Beneficiary, when payment shall become
due, the principal with interest thereon and all other sums required to be
paid by Trustor under this Deed of Trust and the Loan Documents.
I.2. GENERAL REPRESENTATIONS, COVENANTS AND WARRANTIES.
--------------------------------------------------
Trustor represents, covenants and warrants that: (A) Trustor has good
and marketable title to an indefeasible fee estate in the Fee Land and good
and marketable title to an indefeasible leasehold estate in the Leased
Land, free and clear of all encumbrances except Permitted Liens, and that
it has the right to hold, occupy and enjoy its interest in the Trust
Estate, and has good right, full power and lawful authority to subject the
Trust Estate to the Lien of this Deed of Trust and pledge the same as
provided herein and Beneficiary may at all times peaceably and quietly
enter upon, hold, occupy and enjoy the entire Trust Estate in accordance
with the terms hereof; (b) neither Trustor nor any Affiliate of Trustor is
Insolvent and no bankruptcy or insolvency proceedings are pending or
contemplated by or, to the best of Trustor's knowledge, against Trustor or
any Affiliate of Trustor; (c) all costs arising from construction of any
Improvements, the performance of any labor and the purchase of all Tangible
Collateral and Improvements
-15-
have been or shall be paid when due; (d) the Land has frontage on, and
direct access for ingress and egress to dedicated street(s), either
directly or through an easement; (e) Trustor shall at all times conduct and
operate the Trust Estate in a manner so as not to lose the right to conduct
gaming activities at the Resorts; (f) no material part of the Trust Estate
has been damaged, destroyed, condemned or abandoned, other than those
portions of the Trust Estate that have been the subject of condemnation
proceedings that have resulted in the conveyance of such portion of the
Trust Estate to Trustor; (g) no part of the Trust Estate is the subject of
condemnation proceedings, and Trustor has no knowledge of any contemplated
or pending condemnation proceeding with respect to any portion of the Trust
Estate; (h) the Leases are in full force and effect without any defaults by
any parties thereto and Trustor is the holder of the lessee's or tenant's
interest thereunder; and (i) the Trust Estate and all structures,
equipment, fixtures or activities thereon are in compliance with all
applicable zoning and land use ordinances and regulations, building codes,
and fire codes.
I.3. COMPLIANCE WITH LEGAL REQUIREMENTS.
----------------------------------
Trustor shall promptly, fully, and faithfully comply with all Legal
Requirements and shall cause all portions of the Trust Estate and its use
and occupancy to fully comply with Legal Requirements at all times, whether
or not such compliance requires work or remedial measures that are ordinary
or extraordinary, foreseen or unforeseen, structural or nonstructural, or
that interfere with the use or enjoyment of the Trust Estate.
I.4. TAXES.
-----
Trustor shall pay all Impositions prior to delinquency and shall
deliver to Beneficiary promptly upon Beneficiary's request, evidence
satisfactory to Beneficiary that the Impositions have been paid or are not
delinquent; provided that Trustor may contest, in good faith any Imposition
so long as Trustor posts an adequate bond therefor. Trustor shall not
suffer to exist, permit or initiate the joint assessment of the real and
personal property, or any other procedure whereby the lien of the real
property taxes and the lien of the personal property taxes shall be
assessed, levied or charged to the Land as a single lien, except as may be
required by law. In the event of the passage of any law deducting from the
value of real property for the purposes of taxation any lien thereon, or
changing in any way the taxation of deeds of trust or obligations secured
thereby for state or local purposes, or the manner of collecting such taxes
and imposing a tax, either directly or indirectly, on this Deed of Trust or
the Notes, Trustor shall pay all such taxes so long as such tax is not in
lieu of income tax assessed against the net income of Beneficiary.
I.5. INSURANCE.
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(1) HAZARD INSURANCE REQUIREMENTS AND PROCEEDS.
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Subject to the terms and conditions of the Intercreditor Agreement:
(1) Hazard Insurance. Trustor shall at its sole expense obtain
----------------
for, deliver to, assign and maintain for the benefit of Beneficiary,
during the term of this Deed of Trust, insurance policies insuring the
Trust Estate and liability insurance policies, all in accordance with
the requirements of Section 4.18 of the Indenture. Trustor shall pay
promptly when due any premiums on such insurance policies and on any
renewals thereof. Copies of all such policies and renewals thereof
shall be given to Beneficiary and all such policies shall contain a
noncontributory standard mortgagee or beneficiary endorsement (Form
438 BFU or its equivalent) making losses payable to Beneficiary as its
interest may appear and shall name the Beneficiary as an additional
insured. At least ten (10) days prior to the expiration date of all
such policies, evidence of the renewal thereof satisfactory to
Beneficiary shall be delivered to Beneficiary together with receipts
evidencing the payment of all premiums on such insurance policies and
renewals. In the event of loss, Trustor shall give immediate written
notice to Beneficiary and Beneficiary may make proof of loss if not
made promptly by Trustor. In the event of the foreclosure of this
Deed of Trust or any other transfer of title to the Trust Estate in
extinguishment of the indebtedness and other sums secured hereby, all
right, title and interest of Beneficiary in and to all insurance
policies and renewals thereof then in force shall pass to the
purchaser or grantee, upon delivery of written notice to Beneficiary
within thirty (30) days following the occurrence of such loss.
(2) Handling of Proceeds. Pursuant to its rights granted
--------------------
hereunder in all Proceeds from any insurance policies, Beneficiary is
hereby authorized and empowered at its option to adjust or compromise
any loss, under any insurance policies on the Trust Estate and to
collect and receive the proceeds from any such policy or policies;
provided that the provisions of this Section 1.5(a)(2) shall not apply
to any losses less than $25,000 per occurrence and $100,000 in the
aggregate per year. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Beneficiary
alone and not to Trustor and Beneficiary jointly. After deducting
from such Proceeds any reasonable expenses incurred by Beneficiary in
the collection or handling such funds, including reasonable attorneys'
fees, Beneficiary shall apply such insurance proceeds in accordance
with the terms of the Indenture and the following provisions:
1) Such Proceeds shall be invested in Cash Equivalents and
held in an account in which the Beneficiary or its designee shall
have a first priority security interest (subject to Permitted
Liens) for the benefit of the Holders of Notes as depository for
the disbursement thereof as provided in Section 4.10(b) of the
Indenture. If an Event of Default occurs prior to
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disbursement of the proceeds, Beneficiary at its option shall
have the right to either apply all or any portion of such account
toward restoration of the respective Report or toward any amounts
secured hereby.
(2) Trustor shall (and Beneficiary hereby authorizes
Trustor to) use the Proceeds in accordance with Sections 4.10(b)
of the Indenture.
(3) In the event that Trustor uses the Proceeds to restore
the respective Resort, the restoration work and the performance
thereof shall be subject to and performed in accordance with each
of the following provisions: (1) such work and the performance
thereof shall be conducted in a first-class, workmanlike manner,
shall not permanently weaken nor impair the structural strength
of any existing Improvements, nor change the character thereof or
the purpose for which the same may be used, nor lessen the value
of the Trust Estate; (2) before the commencement of any such
work, the plans and specifications therefor (the "RESTORATION
PLANS") shall be filed with and approved by all Governmental
Authorities having jurisdiction and all necessary licenses,
permits and/or authorizations from all Governmental Authorities
shall have been obtained, and all such work shall be done subject
to and in accordance with all applicable Legal Requirements; and
(3) before commencing any such work, Trustor shall, at Trustor's
expense, have delivered to Beneficiary the Restoration Plans and
a line item budget setting forth with reasonable particularity
the cost of completing such work, together with a written opinion
form a reputable architect certifying (a) that the execution of
the work described in the Restoration Plans will substantially
restore the respective Resort, and (b) that the budget
constitutes a reasonable approximation of the cost of so
restoring the respective Resort in accordance with the
Restoration Plans.
(2) INSURANCE ESCROW. In order to secure the performance and
discharge of the Trustor's obligations under this Section 1.5, but not in
lieu of such obligations, Trustor shall, upon a failure to pay or provide
such insurance, at the times and in the manner required herein, pay over to
Beneficiary an amount equal to one-twelfth (1/12th) of the next maturing
annual insurance premiums for each month that has elapsed since the last
date to which such premiums were paid; and Trustor shall, in addition, pay
over to Beneficiary, on the first day of each month, sufficient funds (as
estimated from time to time) to permit Beneficiary to pay said premiums
when due. Such deposits shall not be, nor be deemed to be, trust funds but
may be commingled with the general funds of Beneficiary, and no interest
shall be payable in respect thereof except as required by law. Upon demand
by Beneficiary, Trustor shall deliver to Beneficiary such additional monies
as are necessary to make up any deficiencies in the amounts necessary to
enable Beneficiary to pay such premiums when due.
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(3) COMPLIANCE WITH INSURANCE POLICIES. Trustor shall not violate
or permit to be violated any of the conditions or provisions of any policy
of insurance required by the Indenture or this Deed of Trust and Trustor
shall so perform and satisfy the requirements of the companies writing such
policies that, at all times, companies of good standing shall be willing to
write and/or continue such insurance. Trustor further covenants to
promptly send to Beneficiary copies of all notices relating to any
violation of such policies or otherwise affecting Trustor's insurance
coverage or ability to obtain and maintain such insurance coverage.
I.6. CONDEMNATION.
------------
Beneficiary is hereby authorized, at its option, to commence, appear
in and prosecute in its own or Trustor's name any action or proceeding
relating to any condemnation, seizure or taking by the exercise of the
power of eminent domain of any of the Trust Estate and to settle or
compromise any claim in connection therewith, and Trustor hereby appoints
Beneficiary as its attorney-in-fact to take any action in Trustor's name
pursuant to Beneficiary's rights hereunder. Immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Trust Estate or any portion thereof, Trustor shall notify the Trustee and
Beneficiary of the pendency of such proceedings. Trustor from time to time
shall execute and deliver to Beneficiary all instruments requested by it to
permit such participation; provided, however, that such instruments shall
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be deemed as supplemental to the foregoing grant of permission to Trustee
and Beneficiary, and unless otherwise required, the foregoing permission
shall, without more, be deemed sufficient to permit Trustee and/or
Beneficiary to participate in such proceedings on behalf of Trustor. All
such compensation awards, damages, claims, rights of action and Proceeds,
and any other payments or relief, and the right thereto, are included in
the Trust Estate. To the extent such condemnation, seizure or taking
constitutes an Event of Loss, Beneficiary, after deducting therefrom all
its expenses, including reasonable attorneys fees, shall, or shall
authorize Trustor to apply such Proceeds in accordance with the provisions
of Section 4.10(b) of the Indenture.
I.7. CARE OF TRUST ESTATE.
--------------------
(1) Trustor shall preserve and maintain the Trust Estate in good
condition and repair, reasonable wear and tear excepted. Trustor shall not
permit, commit or suffer to exist any waste, impairment or deterioration of
the Trust Estate or of any part thereof that in any manner materially
impairs Beneficiary's security hereunder and shall not take any action
which will increase the risk of fire or other hazard to the Trust Estate or
to any part thereof.
(2) Except for Permitted Dispositions, no part of the Improvements
shall be removed, demolished or materially altered without the prior
written consent of Beneficiary, which consent shall not be unreasonably
withheld. Trustor shall have the
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right, without such consent, to remove and dispose of free from the lien of
this Deed of Trust any part of the Improvements as from time to time may
become worn out or obsolete, provided that either (i) such removal or
disposition does not materially affect the value of the Trust Estate or
(ii) prior to or promptly following such removal, any such property shall
be replaced with other property of substantially equal utility and of a
value at least substantially equal to that of the replaced property when
first acquired and free from any security interest of any other person
(subject only to Permitted Liens), and by such removal and replacement
Trustor shall be deemed to have subjected such replacement property to the
lien of this Deed of Trust.
(3) To the fullest extent permitted by law, Trustor hereby waives
the benefits of the provisions of NRS 37.115.
I.8. SPACE LEASES.
------------
(1) Trustor represents and warrants that
(1) Trustor has delivered to Beneficiary true, correct and
complete copies of all Space Leases, including all amendments and
modifications, written or oral existing as of the date hereof;
(2) Trustor has not executed or entered into any modifications
or amendments of the Space Leases, either orally or in writing, other
than amendments that have been disclosed to Beneficiary in writing;
(3) no material default now exists under any Space Lease;
(4) no event has occurred that, with the giving of notice or
the passage of time or both, would constitute such a material default
or would entitle Trustor or any other party under such Space Lease to
cancel the same or otherwise avoid its obligations;
(5) Trustor has not accepted prepayments of installments of
Rent under any Space Leases more than thirty days in advance of the
due date therefor and except for security deposits not in excess of
one month's Rent;
(6) except for the assignment effected hereby, Trustor has not
executed any assignment or pledge of any of Space Leases, the Rents,
or of Trustor's right, title and interest in the same; and
(7) this Deed of Trust conforms and complies with all Space
Leases, does not constitute a violation or default under any Space
Lease, and is and shall at all times constitute a valid lien on
Trustor's interests in the Space Leases.
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I.9. FURTHER ENCUMBRANCE.
-------------------
(1) Trustor covenants that at all times prior to the discharge of
the Indenture, except for Permitted Liens (including the 1996 Deed of
Trust), Permitted Dispositions and dispositions permitted under Section
1.10, Trustor shall neither make nor suffer to exist, nor enter into any
agreement for, any sale, assignment, exchange, mortgage, transfer, Lien,
hypothecation or encumbrance of all or any part of the Trust Estate,
including, without limitation, the Rents. As used herein, "transfer"
includes the actual transfer or other disposition, whether voluntary or
involuntary, by law, or otherwise, except those transfers specifically
permitted herein, provided, however, that "transfer" shall not include the
granting of utility or other beneficial easements with respect to the Trust
Estate which have been granted by Trustor and are reasonably necessary to
the construction, maintenance or operation of the Resorts.
(2) Any Permitted Lien described in the definition of "Permitted
Liens" set forth in Section 1.1 of the Indenture which is junior to the
lien of the Loan Documents (a "SUBORDINATE DEED OF TRUST") shall be
permitted hereunder so long as there shall have been delivered to
Beneficiary, not less than thirty (30) days prior to the date thereof, a
copy thereof which shall contain express covenants in form and substance
satisfactory to Beneficiary to the effect that: (i) the Subordinate Deed
of Trust is in all respects subject and subordinate to this Deed of Trust;
(ii) if any action or proceeding shall be brought to foreclose the
Subordinate Deed of Trust (regardless of whether the same is a judicial
proceeding or pursuant to a power of sale contained therein), no tenant of
any portion of the Trust Estate shall be named as a party defendant nor
shall any action be taken with respect to the Trust Estate which would
terminate any occupancy or tenancy of the Trust Estate, or any portion
thereof, without the consent of Beneficiary; (iii) any Rents, if collected
through a receiver or by the holder of the Subordinate Deed of Trust, shall
be applied first to the obligations secured by this Deed of Trust,
including principal and interest due and owing on or to become due and
owing on the Notes, and then to the payment of maintenance expenses,
operating charges, taxes, assessments, and disbursements incurred in
connection with the ownership, operation, and maintenance of the Trust
Estate; and (iv) if any action or proceeding shall be brought to foreclose
the Subordinate Deed of Trust, prompt notice of the commencement thereof
shall be given to Beneficiary.
(3) Trustor agrees that in the event the ownership of the Trust
Estate or any part thereof becomes vested in a person other than Trustor,
Beneficiary may, without notice to Trustor, deal in any way with such
successor or successors in interest with reference to this Deed of Trust,
the Notes and other Obligations hereby secured without in any way vitiating
or discharging Trustor's or any guarantor's, surety's or endorser's
liability hereunder or upon the obligations hereby secured. No sale of the
Trust Estate and no forbearance to any person with respect to this Deed of
Trust and no extension to any
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person of the time for payment of the Notes, and other sums hereby secured
given by Beneficiary shall operate to release, discharge, modify, change or
affect the original liability of Trustor, or such guarantor, surety or
endorser either in whole or in part.
(4) This Deed of Trust, as applied to property subject to an FF&E
Financing Agreement, shall be subordinated to the liens of any FF&E
Financing Agreements (as hereinafter defined in this Section 1.9(d) (or if
required by an FF&E Financing Agreement, it shall be released) and any
future of further advances made thereunder and to any modifications,
renewals or extensions thereof to which the lien of this Deed of Trust
attaches, provided, however, that any such FF&E Financing Agreement shall
-------- -------
encumber only that FF&E specifically subject to the FF&E Financing
Agreement. Trustor covenants and agrees to comply with all of the terms
and conditions set forth in any FF&E Financing Agreement with respect to
which Beneficiary has taken a lien hereunder. If Trustor shall fail to
make any payment of principal of or pursuant to any FF&E Financing
Agreement with respect to which Beneficiary has taken a lien hereunder on
its part to be performed or observed, except where Trustor is contesting
such payment in good faith, then Beneficiary may make such payment of the
principal of or interest on the sums secured by such security interest or
may make any payment in order to perform or observe any other term,
covenant, condition or agreement of any FF&E Financing Agreement on
Trustor's part to be performed or observed and any and all sums so expended
by Beneficiary or Trustee shall be secured by this Deed of Trust and shall
be repaid by Trustor upon demand, together with interest thereon at the
interest rate on the Notes from the date of advance. In furtherance of
such subordination or release, as applicable, Beneficiary, upon receipt of
an officer's certificate from Trustor certifying that the requirements of
this Section 1.9(d) have been satisfied, shall execute, acknowledge and
deliver to Trustor, at Trustor's expense, any and all such evidence and
documents necessary to evidence the subordination or release of this Deed
of Trust in accordance with the foregoing provisions of this Section
1.9(d). As used herein, "FF&E Financing Agreement" shall mean (A) any
financing (i) as to which the lender holds a security interest in only the
assets purchased, constructed or leased by such financing for the payment
of principal, interest and other amounts in connection therewith, (ii)
which is permitted by the Indenture to be incurred and (iii) the proceeds
of which are used to acquire, construct or lease the FF&E subject to such
security interest, and (B) any refinancing or renewal of any financing
under clause (A).
I.10. PARTIAL RELEASES OF TRUST ESTATE.
--------------------------------
(1) Trustor may from time to time (i) transfer a portion of the
Trust Estate (including any temporary taking) to any person legally
empowered to exercise the power of eminent domain, (ii) make a Permitted
Disposition, (iii) grant utility easements reasonably necessary for the
construction and operation of the Resorts, which grant or transfer is for
the benefit of the Trust Estate, or (iv) transfer a portion of the Trust
Estate as expressly permitted pursuant to Section 4.10(b) of the Indenture.
In each such case,
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Beneficiary shall execute and deliver any instruments necessary or
appropriate to effectuate or confirm any such transfer or grant, free from
the lien of this Deed of Trust, provided, however, that Beneficiary shall
-------- -------
execute a lien release or subordination agreement, as appropriate, for
matters described in clauses (i) and (iii) above only if:
(1) Beneficiary and Trustee shall have received an Officer's
Certificate required by Section 10.3(a) of the Indenture;
(2) No default or event of default shall have occurred under
the Indenture, no Event of Default shall have occurred hereunder, and
no event which with notice or lapse of time or both would constitute
such Event of Default, has occurred and is continuing and that the
conditions of this Section 1.10 have been fulfilled, and such
transfer, grant or release is permitted by the Indenture;
(3) Beneficiary and Trustee shall have received a counterpart
of the instrument pursuant to which such transfer, grant or release is
to be made, and each instrument which Beneficiary or Trustee is
requested to execute in order to effectuate or confirm such transfer,
grant or release;
(4) In the case of a transfer to a person legally empowered to
exercise the power of eminent domain, which transfer involves property
whose value is greater than $5,000,000, Beneficiary and Trustee shall
have received an opinion of counsel, who may be counsel to Trustor, to
the effect that the assignee or grantee of the portion of the Trust
Estate being transferred is legally empowered to take such portion
under the power of eminent domain; and
(5) Beneficiary and Trustee shall have received such other
instruments, certificates (including evidence of authority) and
opinions as Beneficiary or Trustee may reasonably request, including,
but not limited to, opinions that the proposed release is permitted by
this Section 1.10.
(2) Any consideration received for a transfer to any person
empowered to exercise the right of eminent domain shall be subject to
Section 1.6 hereof.
I.11. FURTHER ASSURANCES.
------------------
(1) At its sole cost and without expense to Trustee or Beneficiary,
Trustor shall do, execute, acknowledge and deliver any and all such further
reasonable acts, deeds, conveyances, notices, requests for notices,
financing statements, continuation statements, certificates, assignments,
notices of assignments, agreements, instruments and further assurances, and
shall xxxx any chattel paper, deliver any chattel paper or instruments to
Beneficiary and take any other actions that are reasonably necessary,
prudent, or requested by Beneficiary or Trustee to perfect or continue the
perfection and first priority
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of Beneficiary's security interest in the Trust Estate, (except as
expressly provided in the Security Agreement), to protect the Trust Estate
against the rights, claims, or interests of third persons other than
holders of Permitted Liens or to effect the purposes of this Deed of Trust,
including the security agreement and the absolute assignment of Rents
contained herein, or for the filing, registering or recording thereof.
(2) Trustor shall forthwith upon the execution and delivery of this
Deed of Trust, and thereafter from time to time, cause this Deed of Trust
and each instrument of further assurance to be filed, indexed, registered,
recorded, given or delivered in such manner and in such places as may be
required by any present or future law in order to publish notice of and
fully to protect the lien hereof upon, and the title of Trustee and/or
Beneficiary to, the Trust Estate.
I.12. SECURITY AGREEMENT AND FINANCING STATEMENTS.
-------------------------------------------
Trustor (as debtor) hereby grants to Beneficiary (as creditor and
secured party) a present and future security interest in all Tangible
Collateral, Intangible Collateral, FF&E (to the extent Beneficiary is
permitted, in each applicable FF&E Financing Agreement, to maintain a
security interest therein), Improvements, all other personal property now
or hereafter owned or leased by Trustor or in which Trustor has or will
have any interest, to the extent that such property constitutes a part of
the Trust Estate (whether or not such items are stored on the premises or
elsewhere), Proceeds of the foregoing comprising a portion of the Trust
Estate and all proceeds of insurance policies and consideration awards
arising therefrom and all proceeds, products, substitutions, and accessions
therefor and thereto, subject to Beneficiary's rights to treat such
property as real property as herein provided (collectively, the "PERSONAL
PROPERTY"). Trustor shall execute any and all documents and writings,
including without limitation financing statements pursuant to the UCC, as
may be necessary or prudent to preserve and maintain the priority of the
security agreement or as Beneficiary may reasonably request, (other than as
expressly provided in the Security Agreement), and shall pay to Beneficiary
on demand any reasonable expenses incurred by Beneficiary in connection
with the preparation, execution and filing of any such documents. Trustor
hereby authorizes and empowers Beneficiary to execute and file, on
Trustor's behalf, all financing statements and refiling and continuations
thereof as advisable to create, preserve and protect said security
interest. This Deed of Trust constitutes both a real property deed of
trust and a "security agreement," within the meaning of the UCC, and the
Trust Estate includes both real and personal property and all other rights
and interests, whether tangible or intangible in nature, of Trustor in the
Trust Estate. Trustor by executing and delivering this Deed of Trust has
granted to Beneficiary, as security for the Obligations, a security
interest in the Trust Estate.
(1) FIXTURE FILING. Without in any way limiting the generality
of the immediately preceding paragraph of the definition of the Trust
Estate, this Deed
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of Trust constitutes a fixture filing under Section 9-402 of the UCC
(NRS 105.9502). For such purposes, (i) the "debtor" is Trustor and its
address is the address given for it in the initial paragraph of this
Deed of Trust; (ii) the "secured party" is Beneficiary, and its
address for the purpose of obtaining information is the address given
for it in the initial paragraph of this Deed of Trust; (iii) the real
estate to which the fixtures are or are to become attached is
Trustor's interest in the land; and (iv) the record owner of such real
estate is Trustor.
(2) REMEDIES. This Deed of Trust shall be deemed a security
agreement as defined in the UCC and the remedies for any violation of
the covenants, terms and conditions of the agreements herein contained
shall include any or all of (i) those prescribed herein, and (ii)
those available under applicable law, and (iii) those available under
the UCC, all at Beneficiary's sole election. In addition, a
photographic or other reproduction of this Deed of Trust shall be
sufficient as a financing statement for filing wherever filing may be
necessary to perfect or continue the security interest granted herein.
(3) DEROGATION OF REAL PROPERTY. It is the intention of the
parties that the filing of a financing statement in the records
normally having to do with personal property shall never be construed
as in any way derogating from or impairing the express declaration and
intention of the parties hereto as hereinabove stated that everything
used in connection with the production of income from the Trust Estate
and/or adapted for use therein and/or which is described or reflected
in this Deed of Trust is, and at all times and for all purposes and in
all proceedings both legal or equitable, shall be regarded as part of
the real property encumbered by this Deed of Trust irrespective of
whether (i) any such item is physically attached to the Improvements,
(ii) serial numbers are used for the better identification of certain
equipment items capable of being thus identified in a recital
contained herein or in any list filed with Beneficiary, or (iii) any
such item is referred to or reflected in any such financing statement
so filed at any time. It is the intention of the parties that the
mention in any such financing statement of (1) rights in or to the
proceeds of any fire and/or hazard insurance policy, or (2) any award
in eminent domain proceedings for a taking or for loss of value, or
(3) Trustor's interest as lessors in any present or future Space Lease
or rights to Rents, shall never be construed as in any way altering
any of the rights of Beneficiary as determined by this Deed of Trust
or impugning the priority of Beneficiary's real property lien granted
hereby or by any other recorded document, but such mention in the
financing statement is declared to be for the protection of
Beneficiary in the event any court or judge shall at any time hold
with respect to the matters set forth in the foregoing clauses (1),
(2) and (3) that notice of Beneficiary's priority of interest to be
effective against a particular class of persons, including but not
limited to, the federal government and any subdivisions or entity of
the federal government, must be filed in the UCC
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records.
(4) PRIORITY; PERMITTED FINANCING OF TANGIBLE COLLATERAL.
Except as provided in Section 1.9(d) hereof, all Personal Property of
any nature whatsoever, which is subject to the provisions of this
security agreement, shall be purchased or obtained by Trustor in its
name and free and clear of any lien or encumbrance, except for
Permitted liens and the lien hereof, for use only in connection with
the business and operation of the Resorts, and shall be and at all
times remain free and clear of any lease or similar arrangement,
chattel financing, installment sale agreement, security agreement and
any encumbrance of like kind, so that Beneficiary's security interest
shall attach to and vest in Trustor for the benefit of Beneficiary,
with the priority herein specified, immediately upon the installation
or use of the Personal Property at the Land and Trustor warrants and
represents that Beneficiary's security interest in the Personal
Property is validly attached and binding security interest, properly
pursuant to Permitted Dispositions or to obtain releases of Personal
Property from the Lien of this Deed of Trust pursuant to Section 1.10
hereof.
(5) PRESERVATION OF CONTRACTUAL RIGHTS OF COLLATERAL. Trustor
shall, prior to delinquency, default, or forfeiture, perform all
obligations and satisfy all material conditions required on its part
to be satisfied to preserve its rights and privileges under any
contract, lease, license, permit, or other authorization (i) under
which it holds any Tangible Collateral or (ii) which constitutes part
of the Intangible Collateral except where Trustor is contesting such
obligations in good faith.
(6) REMOVAL OF COLLATERAL. Except as otherwise permitted
herein, none of the Tangible Collateral shall be removed from the
Trust Estate without Beneficiary's prior written consent, and except
damaged or obsolete Tangible Collateral which is either no longer
usable or which is removed temporarily for repair or improvement or
removed for replacement on the Trust Estate with Tangible Collateral
of similar function.
(7) CHANGE OF NAME. Trustor shall not change its corporate or
business name, or do business within the State of Nevada under any
name other than such name, or any trade name(s) other than those as to
which Trustor gives prior written notice to Beneficiary of its intent
to use such trade names, or any other business names (if any)
specified in the financing statements delivered to Beneficiary for
filing in connection with the execution hereof, without providing
Beneficiary with the additional financing statement(s) and any other
similar documents deemed reasonably necessary by Beneficiary to assure
that its security interest remains perfected and of undiminished
priority in all such Personal Property notwithstanding such name
change.
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I.13. ASSIGNMENT OF RENTS.
-------------------
The assignment of Leases and Rents set out above in Granting Clause
(G) shall constitute an absolute and present assignment to Beneficiary,
subject to the license herein given to Trustor to collect the Rents, and
shall be fully operative without any further action on the part of any
party, and specifically Beneficiary shall be entitled upon the occurrence
of an Event of Default hereunder to all Rents, whether or not Beneficiary
takes possession of the Trust Estate, or any portion thereof. The absolute
assignment contained in Granting Clause (G) shall not be deemed to impose
upon Beneficiary any of the obligations or duties of Trustor provided in
any such Space Lease (including, without limitation, any liability under
the covenant of quiet enjoyment contained in any lease in the event that
nay lessee shall have been joined as a party defendant in any action to
foreclose this Deed of Trust and shall have been barred and foreclosed
thereby of all right, title and interest and equity of redemption in the
Trust Estate or any part thereof).
I.14. EXPENSES.
--------
(1) Trustor shall pay when due and payable all costs, including
without limitation, those reasonable appraisal fees, recording fees, taxes,
brokerage fees and commissions, abstract fees, title policy fees, escrow
fees, attorneys' and paralegal fees, travel expenses, fees for inspecting
architect(s) and engineer(s) and all other costs and expenses of every
character which have been incurred or which may hereafter be incurred by
Beneficiary or any assignee of Beneficiary in connection with the
preparation and execution of loan documents, amendments thereto or
instruments, agreements or documents of further assurance, the funding of
the Notes secured hereby, and the enforcement of any Loan Document; and
(2) Trustor shall, upon demand by Beneficiary, reimburse Beneficiary
or any assignee of Beneficiary for all such reasonable expenses described
in Section 1.14(a) which have been incurred or which shall be incurred by
it; and
(3) Trustor shall indemnify Beneficiary with respect to any
transaction or matter in any way connected with any portion of the Trust
Estate, this Deed of Trust, including any occurrence at, in, on, upon or
about the Trust Estate (including any personal injury, loss of life, or
property damage), or Trustor's use, occupancy, or operation of the Trust
Estate, or the filing or enforcement of any mechanic's lien, or otherwise
caused in whole or in part by any act, omission or negligence occurring on
or at the Trust Estate, including failure to comply with any Legal
Requirement or with any requirement of this Deed of Trust be paid or
performed by Trustor, unless caused by the gross negligence or willful Deed
of Trust be paid or performed by Trustor, unless caused by the gross
negligence or willful misconduct of Beneficiary. If Beneficiary is a party
to any litigation as to which either Trustor is required to indemnify
Beneficiary (or is made a defendant in any action
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of any kind against Trustor or relating directly or indirectly to any
portion of the Trust Estate) then, at Beneficiary's option, Trustor shall
undertake Beneficiary's defense, using counsel satisfactory to Beneficiary
(and any settlement shall be subject to Beneficiary's consent, and in any
case shall indemnify Beneficiary against such litigation. Trustor shall pay
all reasonable costs and expenses, including reasonable legal costs, that
Beneficiary pays or incurs in connection with any such litigation. Any
amount payable under any indemnity in this Deed of Trust shall be a demand
obligation, shall be added to, and become a part of, the secured
obligations under this Deed of Trust, shall be secured by this Deed of
Trust, and shall bear interest at the interest rate on the Notes. Such
indemnity shall survive any release of this Deed of Trust and any
Foreclosure.
I.15. BENEFICIARY'S CURE OF TRUSTOR'S DEFAULT.
---------------------------------------
If Trustor defaults in the payment of any tax, assessment, lien,
encumbrance or other Imposition, in its obligation to furnish insurance
hereunder, or in the performance or observance of any other covenant,
condition or term of this Deed of Trust or any Loan Document unless Trustor
is contesting in good faith such Imposition and posts an adequate bond
therefor, Beneficiary may, but is not obligated to, to preserve its
interest in the Trust Estate, perform or observe the same, and all payments
made (whether such payments are regular or accelerated payments) and
reasonable costs and expenses incurred or paid by Beneficiary in connection
therewith shall become due and payable immediately. The amounts so
incurred or paid by Beneficiary, together with interest thereon at the
interest rate on the Notes from the date incurred until paid by Trustor,
shall be added to the indebtedness and secured by the lien of this Deed of
Trust. Beneficiary is hereby empowered to enter and to authorize others to
enter upon the Land or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or term, without thereby
becoming liable to Trustor or any person in possession holding under
Trustor. No exercise of any rights under this Section by Beneficiary shall
cure or waive any Event of Default or notice of default hereunder or
invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
I.16. USE OF LAND.
-----------
Trustor covenants that the Trust Estate shall be used and operated in
a manner consistent with the operation of casino-hotels located in Las
Vegas, Nevada, open during such days and hours as are customarily observed
by such casino-hotels.
I.17. COMPLIANCE WITH PERMITTED LIEN AGREEMENTS.
-----------------------------------------
Trustor or any Affiliate of Trustor shall comply with each and every
material obligation contained in any agreement pertaining to a material
Permitted Lien.
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I.18. DEFENSE OF ACTIONS.
------------------
Trustor shall appear in an defend any action or proceeding affecting
or purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee, and shall pay all costs and expenses, including
cost of title search and insurance or other evidence of title, preparation
of survey, and reasonable attorneys' fees in any such action or proceeding
in which Beneficiary or Trustee may appear or may be jointed as a party and
in any suit brought by Beneficiary based upon or in connection with this
Deed of Trust or any Loan Document. Nothing contained in this section
shall, however, limit the right of Beneficiary to appear in such action or
proceeding with counsel of its own choice, either on its own behalf or on
behalf of Trustor.
I.19. AFFILIATES.
----------
(1) SUBJECT TO TRUST DEED. Trustor shall cause all of its
Affiliates in any way involved with the operation of the Trust Estate or
the Resorts to observe the covenants and conditions of this Deed of Trust
to the extent necessary to give the full intended effect to such covenants
and conditions and to protect and preserve the security of Beneficiary
hereunder. Trustor shall, at Beneficiary's request, cause any such
Affiliate to execute and deliver to Beneficiary or Trustee such further
instruments or documents as Beneficiary may reasonably deem necessary to
effectuate the terms of this Section 1.19.
(2) RESTRICTION ON USE OF SUBSIDIARY OR AFFILIATE. Trustor shall
not use any Affiliate in the operation of the Trust Estate or the Resorts
if such use would in any way impair the security for the Notes and the
Indenture or circumvent any covenant or condition of this Deed of Trust or
of any other Loan Document.
I.20. TITLE INSURANCE.
---------------
Concurrently with the execution and delivery of this Deed of Trust,
Trustor shall cause to be delivered to Trustee at Trustor's expense, one or
more ALTA extended coverage Lender's Policies of Title Insurance (1970)
showing fee and leasehold title to the real property situated in the City
of Las Vegas, County of Xxxxx, State of Nevada, more specifically described
in Schedule A attached hereto, vested in Trustor and the lien of this Deed
of Trust to be a perfected lien, prior to any and all encumbrances other
than Permitted Liens.
ARTICLE II
THE LEASES
----------
II.1. STATUS OF LEASES.
----------------
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Trustor represents and warrants that: (a) Trustor has provided to
Beneficiary true, correct and complete copies of all Leases and Trustor has
not executed or entered into any modifications or amendments of the Leases,
either orally or in writing, other than written amendments that have been
disclosed to Beneficiary in writing; (b) the Leases are in full force and
effect, unmodified by any writing or otherwise, except as previously
disclosed by Trustor to Beneficiary; (c) all rent and other charges
reserved in the Leases have been paid to the extent they are payable to the
date hereof; (d) Trustor enjoys the quiet and peaceful possession of the
property demised by the Leases; (e) Trustor is not in default under any of
the terms thereof; and (f) no event has occurred that, with the giving of
notice or the passage of time or both, would constitute such a default or
would entitle Trustor or any other party under the Leases to cancel the
same or otherwise avoid its obligations.
II.2. PERFORMANCE OF LEASES.
---------------------
Trustor agrees: (a) to promptly and faithfully observe, perform and
comply in all material respects with all the terms, covenants and
provisions of the Leases on its part to be observed, performed and complied
with, at the times set forth therein; (b) to give Beneficiary immediate
notice of any material default by anyone under the Leases; and (c) to
furnish to Beneficiary such additional information and evidence as
Beneficiary may reasonably request in writing concerning the due
observance, performance and compliance with the terms, covenants and
provisions of the Leases. No release or forbearance of any of Trustor's
obligations under the Leases shall release Trustor from any of its
obligations under this Deed of Trust, including its obligations with
respect to the payment of rent and performance of all of the terms and
provisions of the Leases to be performed by Trustor.
II.3. CURE BY BENEFICIARY.
-------------------
In the event of any default by Trustor in the performance of any of
its obligations under the Leases, including, without limitation, any
default in the payment of rent and other charges and impositions payable by
the tenant thereunder that Beneficiary determines could constitute, with
the giving of notice or the passage of time, an Event of Default hereunder,
then, in each and every case, Beneficiary may, subject to the terms and
conditions of the Intercreditor Agreement, at its option and without notice
(but without any obligation to do so), cause the default or defaults to be
remedied and otherwise exercise any and all of the rights of Trustor
thereunder in the name of an on behalf of Trustor. Trustor shall, on
demand, reimburse Beneficiary for all advances made and expenses incurred
by Beneficiary in curing any such default (including, without limitation,
reasonable attorneys' fees), together with interest thereon at the interest
rate payable on the Notes from the date that an advance is made or expense
is incurred, to and including the date the same is paid.
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XX.0. XX XXXXXX XX XXXXXXX.
--------------------
It is hereby agreed that the fee title and the leasehold estate in the
property demised by each Lease shall not merge but shall always be kept
separate and distinct, notwithstanding the union of such estates in the
landlord thereunder, Trustor or a third party, whether by purchase or
otherwise. If Trustor acquires the fee title or any other estate, title or
interest in the Land, or any part thereof, the lien of this Deed of Trust
shall attach to, cover and be a lien upon such acquired estate, title or
interest and such estate, title or interest shall thereupon be and become a
part of the Trust Estate with the same force and effect as if specifically
encumbered herein. Trustor agrees to execute all instruments and documents
that Beneficiary may reasonably require to ratify, confirm and further
evidence Beneficiary's lien on the acquired estate, title or interest.
Furthermore, Trustor hereby appoints Beneficiary its true and lawful
attorney-in-fact to execute and deliver all such instruments and documents
in the name and on behalf of Trustor. This power, being coupled with an
interest, shall be irrevocable as long as any Obligations remain unpaid.
II.5. NO ASSIGNMENT OF LEASES.
-----------------------
Anything herein to the contrary notwithstanding, this Deed of Trust
shall not constitute an assignment of the Leases within the meaning of any
provisions thereof prohibiting its assignment and Beneficiary shall have no
liability or obligation thereunder by reason of its acceptance of this Deed
of Trust.
II.6. MAINTENANCE OF LEASES.
---------------------
Trustor shall not surrender its leasehold estate under the Leases, nor
terminate or cancel the Leases. Trustor shall not agree to any amendment
of the Leases without the prior written consent of Beneficiary. Trustor
shall renew all Leases in a timely manner when and as permitted in
accordance with the terms except to the extent Beneficiary directs
otherwise in writing.
II.7. TREATMENT OF THE LEASES IN BANKRUPTCY.
-------------------------------------
(1) 365(H) ELECTION. If the lessor under any Lease (the "LESSOR")
rejects or disaffirms, or seeks or purports to reject or disaffirm, such
Lease pursuant to any bankruptcy law, then Trustor shall not, except as
otherwise provided in this paragraph, exercise the 365(h) Election, or any
comparable right provided under any other bankruptcy law. To the extent
permitted by law, Trustor shall not suffer or permit the termination of any
Lease or relinquishment of its possession of its leasehold by exercise of
the 365(h) Election or otherwise without Beneficiary's consent. Trustor
acknowledges that because the Leases are a primary element of Beneficiary's
security for the Obligations secured hereunder, it is not anticipated that
Beneficiary would consent to
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termination of the Leases. If Trustor makes any 365(h) Election in
violation of this Deed of Trust, then such 365(h) Election shall be void
and of no force or effect.
(2) ASSIGNMENT TO BENEFICIARY. Trustor hereby assigns to
Beneficiary the 365(h) Election with respect to the Leases. Trustor
acknowledges and agrees that the foregoing assignment of the 365(h)
Election and related rights is one of the rights that Beneficiary may use
at any time to protect and preserve Beneficiary's other rights and
interests under this Deed of Trust. Trustor further acknowledges that
exercise of the 365(h) Election in favor of terminating any Lease would
constitute waste prohibited by this Deed of Trust. Trustor acknowledges
and agrees that the 365(h) Election is in the nature of a remedy available
to Trustor under the Leases, and is not a property interest that Trustor
can separate from the Leases as to which it arises. Therefore, Trustor
agrees and acknowledges that exercise of the 365(h) Election in favor of
preserving the right to possession under any Leases shall not be deemed to
constitute Beneficiary's taking or sale of the Trust Estate (or any element
thereof) and shall not entitle Trustor to any credit against the
Obligations secured hereunder or otherwise impair Beneficiary's remedies.
(3) SCOPE OF COLLATERAL. Trustor acknowledges that if the 365(h)
Election is exercised in favor of Trustor's remaining in possession under
any Lease, then Trustor's resulting occupancy rights, as adjusted by the
effect of Section 365 of the Bankruptcy Code, shall then be part of the
Property and shall be subject to the lien of this Deed of Trust.
(4) NOTICES. Trustor shall promptly deliver to Beneficiary a copy
-------
of any notice of default or termination that it receives from any Lessor.
Trustor shall promptly notify Beneficiary of any request that either party
to a Lease makes for arbitration pursuant to such Lease.
ARTICLE III
CORPORATE LOAN PROVISIONS
-------------------------
III.1. INTERACTION WITH INDENTURE.
--------------------------
(1) INCORPORATION BY REFERENCE. All terms, covenants, conditions,
provisions and requirements of the Indenture are incorporated by reference
in this Deed of Trust. Any capitalized term used in this Deed of Trust
without definition, but defined in the Indenture, shall have the same
meaning here as in the Indenture.
(2) CONFLICTS. Notwithstanding any other provision of this Deed of
Trust, the terms and provisions of this Deed of Trust shall be subject and
subordinate to the terms of the Indenture. To the extent that the
Indenture provides Trustor with a particular cure or notice period, or
establishes any limitations or conditions on Beneficiary's actions with
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regard to a particular set of facts, Trustor shall be entitled to the same
cure periods and notice periods, and Beneficiary shall be subject to the
same limitations and conditions, under this Deed of Trust, as under the
Indenture, in place of the cure periods, notice periods, limitations and
conditions provided for under this Deed of Trust; provided, however, that
-------- -------
such cure periods, notice periods, limitations and conditions shall not be
cumulative as between the Indenture and this Deed of Trust. In the event
of any conflict or inconsistency between the provisions of this Deed of
Trust and those of the Indenture, including, without limitation, any
conflicts or inconsistencies in any definitions herein or therein, the
provisions or definitions of the Indenture shall govern.
III.2. OTHER COLLATERAL.
----------------
This Deed of Trust is one of a number of security agreements to secure
the debt delivered by or on behalf of Trustor pursuant to the Indenture and
the other Loan Documents and securing the Obligations secured hereunder.
All potential junior Lien claimants are placed on notice that, under any of
the Loan Documents or otherwise (such as by separate future unrecorded
agreement between Trustor and Beneficiary), other collateral for the
Obligations secured hereunder (i.e., collateral other than the Trust
Estate) may, under certain circumstances, be released without a
corresponding reduction in the total principal amount secured by this Deed
of Trust. Such a release would decrease the amount of collateral securing
the same indebtedness, thereby increasing the burden on the remaining Trust
Estate created and continued by this Deed of Trust. No such release shall
impair the priority of the lien of this Deed of Trust. By accepting its
interest in the Trust Estate, each and every junior Lien claimant shall be
deemed to have acknowledged the possibility of, and consented to, any such
release. Nothing in this paragraph shall impose any obligation upon
Beneficiary.
ARTICLE IV
DEFAULTS AND REMEDIES
---------------------
IV.1. EVENT OF DEFAULT.
----------------
The term "Event of Default," wherever used in this Deed of Trust,
shall mean any one or more of the events of default listed in Section 6.1
of the Indenture, subject to such cure rights as may be expressly set forth
in the Indenture (whether any such event shall be voluntary or involuntary
or come about or be effected by operation of law or pursuant to or in
compliance with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body).
IV.2. ACCELERATION OF MATURITY.
------------------------
If an Event of Default occurs, Beneficiary may (except that such
acceleration shall
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be automatic if the Event of Default is caused by a Trustor's Bankruptcy),
in accordance with Section 6.01(ii) of the Indenture, declare the Notes and
all indebtedness or sums secured hereby, to be due and payable immediately,
and upon such declaration such principal and interest and other sums shall
immediately become due and payable without demand, presentment, notice or
other requirements of any kind (all of which Trustor waives)
notwithstanding anything in this Deed of Trust or any Loan Document or
applicable law to the contrary.
IV.3. PROTECTIVE ADVANCES.
-------------------
If Trustor fails to make any payment or perform any other obligation
under the Notes or any other Loan Document, then without thereby limiting
Beneficiary's other rights of remedies, waiving or releasing any of
Trustor's obligations, or imposing any obligation on Beneficiary,
Beneficiary may, subject to the terms and conditions of the Intercreditor
Agreement, either advance any amount owing or perform any or all actions
that Beneficiary considers necessary or appropriate to cure such default.
All such advances shall constitute "Protective Advances." No sums advanced
or performance rendered by Beneficiary shall cure, or be deemed a waiver of
any Event of Default.
IV.4. INSTITUTION OF EQUITY PROCEEDINGS.
---------------------------------
If an Event of Default occurs, Beneficiary may institute an action,
suit or proceeding in equity for specific performance of this Deed of
Trust, the Notes or any Loan Document, all of which shall be specifically
enforceable by injunction or other equitable remedy. Trustor waives any
defense based on laches or any applicable statute of limitations.
IV.5. BENEFICIARY'S POWER OF ENFORCEMENT.
----------------------------------
Subject to the terms and conditions of the Intercreditor Agreement:
(1) If an Event of Default occurs, Beneficiary shall be
entitled, at its option and in its sole and absolute discretion, to
prepare and record on its own behalf, or to deliver to Trustee for
recording, if appropriate, written declaration of default and demand
for sale and written Notice of Breach and Election to Sell (or other
statutory notice) to cause the Trust Estate to be sold to satisfy the
obligations hereof, and in the case of delivery to Trustee, Trustee
shall cause said notice to be filed for record.
(2) After the lapse of such time as may then be required by law
following the recordation of said Notice of Breach and Election to
Sell, and notice of sale having been given as then required by law,
including compliance with all applicable Gaming Laws, Trustee without
demand on Trustor, shall sell the Trust
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Estate or any portion thereof at the time and place fixed by it in
said notice, either as a whole or in separate parcels, and in such
order as it may determine, at public auction to the highest bidder, of
cash in lawful money of the United States payable at the time of sale.
Trustee may, for any cause it deems expedient, postpone the sale of
all or any portion of said property until its shall be completed and,
in every case, notice of postponement shall be given by public
announcement thereof at the time and place last appointed for the sale
and from time to time thereafter Trustee may postpone such sale by
public announcement at the time fixed by the preceding postponement.
Trustee shall execute and deliver to the purchaser its Deed, Xxxx of
Sale, or other instrument conveying said property so sold, but without
any covenant or warranty, express or implied. The recitals in such
instrument of conveyance of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Beneficiary,
may bid at the sale.
(3) After deducting all costs, fees and expenses of Trustee and
of this Deed of Trust, including, without limitation, costs of
evidence of title and reasonable attorneys' fees of Trustee or
Beneficiary in connection with a sale, Trustee shall apply the
proceeds of such sale to payment of all sums expended under the terms
hereof not then repaid, with accrued interest at the interest rate on
the Notes then to the payment of all other sums then secured hereby
and the remainder, if any, to the person or persons legally entitled
thereto as provided in NRS 40.462.
(4) Subject to compliance with applicable Gaming Laws, if any
Event of Default occurs, Beneficiary may, either with or without entry
or taking possession of the Trust Estate, and without regard to
whether or not the indebtedness and other sums secured hereby shall be
due and without prejudice to the right of Beneficiary thereafter to
bring an action or proceeding to foreclose or any other action for any
default existing at the time such earlier action was commenced,
proceed by any appropriate action or proceeding: (1) to enforce
payment of the Notes, to the extent permitted by law, or the
performance of any term hereof or any other right; (2) to foreclose
this Deed of Trust in any manner provided by law for the foreclosure
of mortgages or deeds of trust on real property and to sell, as an
entirety or in separate lots or parcels, the Trust Estate or any
portion thereof pursuant to the laws of the State of Nevada or under
the judgement or decree of a court or courts of competent
jurisdiction, and Beneficiary shall be entitled to recover in any such
proceeding all costs and expenses incident thereto, including
reasonable attorneys' fees in such amount as shall be awarded by the
court; (3) to exercise any or all of the rights and remedies available
to it under the Indenture; and (4) to pursue any other remedy
available to it. Beneficiary shall take action either by such
proceedings or by the exercise of its powers with respect to entry or
taking possession, or both, as Beneficiary may determine.
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(5) The remedies described in this Section 4.5 may be exercised
with respect to all or any portion of the Personal Property, either
simultaneously with the sale of any real property encumbered hereby or
independent thereof. Beneficiary shall at any time be permitted to
proceed with respect to all or any portion of the Personal Property in
any manner permitted by the UCC and Section 4.178. Trustor agrees
that Beneficiary's inclusion of all or any portion of the Personal
Property in a sale or other remedy exercised with respect to the real
property encumbered hereby, as permitted by the UCC, is a commercially
reasonable disposition of such property.
IV.6. BENEFICIARY'S RIGHT TO ENTER AND TAKE POSSESSION, OPERATE AND APPLY
-------------------------------------------------------------------
INCOME.
------
Subject to the terms and conditions of the Intercreditor Agreement:
(1) Subject to compliance with applicable Gaming Laws, if an
Event of Default occurs, (i) Trustor, upon demand of Beneficiary,
shall forthwith surrender to Beneficiary the actual possession and, if
and to the extent permitted by law, Beneficiary itself, or by such
officers or agents as it may appoint, may enter and take possession of
all the Trust Estate including the Personal Property, without
liability for trespass, damages or otherwise, and may exclude Trustor
and its agents and employees wholly therefrom and may have joint
access with Trustor to the books, papers and accounts of Trustor, and
(ii) Trustor shall pay monthly in advance to Beneficiary on
Beneficiary's entry into possession, or to any receiver appointed to
collect the Rents, all Rents then due and payable.
(2) If Trustor shall for any reason fail to surrender or
deliver the Trust Estate, the Personal Property or any part thereof
after Beneficiary's demand, Beneficiary may obtain a judgment or
decree conferring on Beneficiary or Trustee the right to immediate
possession or requiring Trustor to deliver immediate possession of all
or part of such property to Beneficiary or Trustee and Trustor hereby
specifically consents to the entry of such judgment or decree.
Trustor shall pay to Beneficiary or Trustee, upon demand, all costs
and expenses of obtaining such judgment or decree and reasonable
compensation to Beneficiary or Trustee, their attorneys and agents,
and all such costs, expenses and compensation shall, until paid, be
secured by the lien of this Deed of Trust.
(3) Subject to compliance with applicable Gaming Laws, upon
every such entering upon or taking of possession, Beneficiary or
Trustee may hold, store, use, operate, manage and control the Trust
Estate and conduct the business thereof, and, from time to time in its
sole and absolute discretion and without being under any duty to so
act:
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(1) make all necessary and property maintenance, repairs,
renewals, replacements, additions, betterments and improvements
thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property;
(2) insure or keep the Trust Estate insured;
(3) manage and operate the Trust Estate and exercise all
the rights and xxxxxx of Trustor in their name or otherwise with
respect to the same;
(4) enter into agreements with others to exercise the
powers herein granted Beneficiary or Trustee, all as Beneficiary
or Trustee from time to time may determine; and, subject to the
receive all the Rents, including those past due as well as those
accruing thereafter; and shall apply the monies so received by
Beneficiary or Trustee in such priority as Beneficiary may
determine to (1) the payment of interest and principal due and
payable on the Notes, (2) the deposits for taxes and assessments
and insurance premiums due, (3) the cost of insurance, taxes,
assessments and other proper charges upon the Trust Estate or any
part thereof; (4) the compensation, expenses and disbursements of
the agents, attorneys and other representatives of Beneficiary or
Trustee; and (5) any other charges or costs required to be paid
by Trustor under the terms hereof.
(5) rent or sublet the Trust Estate or any portion thereof
for any purpose permitted by this Deed of Trust.
Beneficiary or Trustee shall surrender possession of the Trust
Estate and the Personal Property to Trustor only when all that is due
upon such interest and principal, tax and insurance deposits, and all
amounts under any of the terms of the Indenture or this Deed of Trust,
shall have been paid and all defaults made good. The same right of
taking possession, however, shall exist if any subsequent Event of
Default shall occur and be continuing.
IV.7. LEASES.
------
Beneficiary is authorized to foreclose this Deed of Trust subject to
the rights of any tenants of the Trust Estate, and the failure to make any
such tenants parties defendant to any such foreclosure proceedings and to
foreclose their rights shall not be, nor be asserted by Trustor to be, a
defense to any proceedings instituted by Beneficiary to collect the sums
secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Trust Estate, or any portion thereof. Unless
otherwise agreed by Beneficiary in writing, all Space Leases executed
subsequent to the date hereof, or any part thereof, shall be subordinate
and inferior to the lien of this Deed of Trust; provided,
--------
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however that (i) Beneficiary may be required to execute a non-disturbance
-------
and attornment agreement in connection with certain lease transactions; and
(ii) from time to time Beneficiary may execute and record among the land
records of the jurisdiction where this Deed of Trust is recorded,
subordination statements with respect to such of said Space Leases as
Beneficiary may designate in its sole discretion, where by the Space Leases
so designated by Beneficiary shall be made superior to the lien of this
Deed of Trust for the term set forth in such subordination statement. From
and after the recordation of such subordination statements, and for the
respective periods as may be set forth therein, the Space Leases therein
referred to shall be superior to the lien of this Deed of Trust and shall
not be affected by any foreclosure hereof. All such Space Leases shall
contain a provision to the effect that the Trustor and Space Lessee
recognize the right of Beneficiary to elect and to effect such
subordination of this Deed of Trust and consents thereto.
IV.8. PURCHASE BY BENEFICIARY.
-----------------------
Upon any foreclosure sale (whether judicial or nonjudicial),
Beneficiary may bid for and purchase the property subject to such sale and,
upon compliance with the terms of sale, may hold, retain and possess and
dispose of such property in its own absolute right without further
accountability.
IV.9. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION
-----------------------------------------------------------------
LAWS.
----
Trustor agrees to the full extent permitted by law that if an Event of
Default occurs, neither Trustor nor anyone claiming through or under it
shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Deed of
Trust or the absolute sale of the Trust Estate or any portion thereof or
the final and absolute putting into possession thereof, immediately after
such sale, of the purchasers thereof, and Trustor for itself and all who
may at any time claim through or under it, hereby waives, to the full
extent that it may lawfully so do, the benefit of all such laws, and any
and all right to have the assets comprising the Trust Estate marshaled upon
any foreclosure of the lien hereof and agrees that Trustee or any court
having jurisdiction to foreclose such lien may sell the Trust Estate in
part or as an entirety.
IV.10. RECEIVER.
--------
If an Event of Default occurs, Beneficiary, to the extent permitted by
law and in accordance with all applicable Gaming Laws, and subject to the
terms and conditions of the Intercreditor Agreement, and without regard to
the value, adequacy or occupancy of the security for the indebtedness and
other sums secured hereby, shall be entitled as a matter of right if it so
elects to the appointment of a receiver to enter upon and take
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possession of the Trust Estate and to collect all Rents and apply the same
as the court may direct, and such receiver may be appointed by any court of
competent jurisdiction upon application by Beneficiary. Beneficiary may
have a receiver appointed and shall promptly notify Trustor of such
appointment of a receiver, and Beneficiary may have a receiver appointed
and shall promptly notify Trustor of such appointment of a receiver, and
Beneficiary may waive any requirement that the receiver post a bond;
provided, however, that failure to notify Trustor or any other third party
shall not affect the enforceability of any actions taken by the receiver.
Beneficiary shall have the power to designate and select the Person who
shall serve as the receiver and to negotiate all terms and conditions under
which such receiver shall serve. Any receiver appointed on Beneficiary's
behalf may be an Affiliate of Beneficiary. The expenses, including
receiver's fees, attorneys' fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by this Deed of
Trust. The right to enter and take possession of and to manage and operate
the Trust Estate and to collect all Rents, whether by a receiver or
otherwise, shall be cumulative to any other right or remedy available to
Beneficiary under this Deed of Trust, the Indenture or otherwise available
to Beneficiary and may be exercised concurrently therewith or independently
thereof. Beneficiary shall be liable to account only for such Rents
(including, without limitation, security deposits) actually received by
Beneficiary, whether received pursuant to this section or any other
provision hereof. Notwithstanding the appointment of any receiver or other
custodian, Beneficiary shall be entitled as pledgee to the possession and
control of any cash, deposits, or instruments at the time held by, or
payable or deliverable under the terms of this Deed of Trust to,
Beneficiary.
IV.11. SUITS TO PROTECT THE TRUST ESTATE.
---------------------------------
Subject to the terms and conditions of the Intercreditor Agreement,
Beneficiary shall have the power and authority to institute and maintain
any suits and proceedings as Beneficiary, in its sole and absolute
discretion, may deem advisable (a) to prevent any impairment of the Trust
Estate by any acts which may be unlawful or any violation of this Deed of
Trust, (b) to preserve or protect its interest in the Trust Estate, or (c)
to restrain the enforcement of or compliance with any legislation or other
Legal Requirement that may be unconstitutional or otherwise invalid, if the
enforcement of or compliance with such enactment, rule or order might
impair the security hereunder or be prejudicial to Beneficiary's interest.
IV.12. PROOFS OF CLAIM.
---------------
In the case of any receivership, Insolvency, Bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings affecting Trustor, any Affiliate or any guarantor, co-maker or
endorse or any of Trustor's obligations, its creditors or its property,
Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim or other documents as it may deem be necessary or advisable
in
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order to have its claims allowed in such proceedings for the entire amount
due and payable by Trustor under the Notes or any other Loan Document, at
the date of the institution of such proceedings, and for any additional
amounts which may become due and payable by Trustor after such date.
IV.13. TRUSTOR TO PAY THE NOTES ON ANY DEFAULT IN PAYMENT; APPLICATION OF
-------------------------------------------------------------------
MONIES BY BENEFICIARY.
---------------------
(1) In case of a foreclosure sale of all or any part of the Trust
Estate and of the application of the proceeds of sale to the payment of the
sums secured hereby, Beneficiary shall be entitled to enforce payment from
Trustor of any additional amounts then remaining due and unpaid and to
recover judgment against Trustor for any portion thereof remaining unpaid,
with interest at the interest rate on the Notes, in accordance with NRS
40.451 et seq.
(2) Trustor hereby agrees to the extent permitted by law, that no
recovery of any such judgment by Beneficiary or other action by Beneficiary
and no attachment or levy of any execution upon any of the Trust Estate or
any other property shall in any way affect the Lien and security interest
of this Deed of Trust upon the Trust Estate or any part thereof or any
Lien, rights, powers or remedies of Beneficiary hereunder, but such Lien,
rights, powers and remedies shall continue unimpaired as before.
(3) Any monies collected or received by Beneficiary under this
Section 4.13 shall be first applied to the payment of compensation,
expenses and disbursements of the agents, attorneys and other
representatives of Beneficiary, and the balance remaining shall be applied
to the payment of amounts due and unpaid under the Notes.
(4) The provisions of this section shall not be deemed to limit or
otherwise modify the provisions of any guaranty of the indebtedness
evidenced by the Notes.
IV.14. DELAY OR OMISSION; NO WAIVER.
----------------------------
No delay or omission of Beneficiary or Noteholder to exercise any
right, power or remedy upon any Event of Default shall exhaust or impair
any such right, power or remedy or shall be construed to waive any such
Event of Default or to constitute acquiescence therein. Every right, power
and remedy given to Beneficiary whether contained herein or in the
Indenture or otherwise available to Beneficiary may be exercised from time
to time and as often as may be deemed expedient by Beneficiary.
IV.15. NO WAIVER OR ONE DEFAULT TO AFFECT ANOTHER.
------------------------------------------
No waiver of any Event of Default hereunder shall extend to or affect
any subsequent or any other Event of Default then existing, or impair any
rights, powers or
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remedies consequent thereon. If Beneficiary or a majority of Noteholders,
to the extent applicable under the Indenture, (a) grants forbearance or an
extension of time for the payment of any sums secured hereby; (b) takes
other or additional security for the payment thereof; (c) waives or does
not exercise any right granted in the Notes, the Indenture, this Deed of
Trust or any other Loan Document; (d) releases any part of the Trust Estate
from the lien or security interest of this Deed of Trust or any other
instrument securing the Notes; (e) consents to the filing of any map, plat
or replat of the Land; (f) consents to the granting of any easement of the
Land; or (g) makes or consents to any agreement changing the terms of this
Deed of Trust or any Loan Document subordinating the lien or any charge
hereof, no such act or omission shall release, discharge, modify, change or
affect the original liability under the Notes, this Deed of Trust or any
other Loan Document or otherwise of Trustor, or any subsequent purchaser of
the Trust Estate or any part thereof or any maker, co-signer, surety or
guarantor. No such act or omission shall preclude Beneficiary from
exercising any right, power or privilege herein granted or intended to be
granted in case of any Event of Default then existing or of any subsequent
Event of Default, nor, except as otherwise expressly provided in an
instrument or instruments executed by Beneficiary, shall the lien or
security interest of this Deed of Trust be altered thereby, except to the
extent expressly provided in any releases, maps, easements or
subordinations described in clause (d), (e), (f) or (g) above of this
Section 4.15. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Trust Estate, Beneficiary, without
notice to any person, firm or corporation, is hereby authorized and
empowered to deal with any such vendee or transferee with reference to the
Trust Estate or the indebtedness secured hereby, or with reference to any
of the terms or conditions hereof, as fully and to the same extent as it
might deal with the original parties hereto and without in any way
releasing or discharging any of the liabilities or undertakings hereunder,
or waiving its right to declare such sale or transfer an Event of Default
as provided herein. Notwithstanding anything to the contrary contained in
this Deed of Trust or any Loan Document, (i) in the case of any non-
monetary Event of Default, Beneficiary may continue to accept payments due
hereunder without hereby waiving the existence of such or any other Event
of Default and (ii) in the case of any monetary Event of Default,
Beneficiary may accept partial payments of any sums due hereunder without
thereby waiving the existence of such Event of Default if the partial
payment is not sufficient to completely cure such Event of Default.
IV.16. DISCONTINUANCE OF PROCEEDINGS; POSITION OF PARTIES RESTORED.
-----------------------------------------------------------
If Beneficiary shall have proceeded to enforce any right or remedy
under this Deed of Trust by foreclosure, entry of judgment or otherwise and
such proceedings shall have been discontinued to abandoned for any reason,
or such proceedings shall have resulted in a final determination adverse to
Beneficiary, then and in every such case Trustor and Beneficiary shall be
restored to their former positions and rights hereunder, and all rights,
powers and remedies of Beneficiary shall continue as if no such
-41-
proceedings had occurred or had been taken.
IV.17. REMEDIES CUMULATIVE.
-------------------
No right, power or remedy, including without limitation remedies with
respect to any security for the Notes, conferred upon or reserved to
Beneficiary by the Note Guarantees, this Deed of Trust or any other Loan
Document is exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and concurrent and
shall be in addition to any other right, power and remedy given hereunder
or under any Loan Document, now or hereafter existing at law, in equity or
by statute, and Beneficiary shall be entitled to resort to such rights,
powers, remedies or security as Beneficiary shall in its sole and absolute
discretion deem advisable, subject to the terms and conditions of the
Intercreditor Agreement. The rights and remedies of Beneficiary upon the
occurrence of one or more defaults by Trustor may be exercised by
Beneficiary, in the sole discretion of Beneficiary, either alternatively,
concurrently, or consecutively in any order. The exercise by Beneficiary
or Trustee, of any one or more of such rights and remedies shall not be
construed to be an election or remedies nor a waiver of any other rights
and remedies Beneficiary might have unless, and limited to the extent that,
Beneficiary shall so elect or so waive by an instrument in writing
delivered to Trustee. Without limiting the generality of the foregoing, to
the extent that this Deed of Trust covers the real property and personal
property, Beneficiary may, in the sole discretion of Beneficiary, either
alternatively, concurrently, or consecutively in any order;
(1) Proceed as to both the real property, the personal property
and other collateral in accordance with Beneficiary's rights and
remedies in respect to the real property; or
(2) Proceed as to the real property in accordance with
Beneficiary's rights and remedies in respect to the real property and
proceed as to the personal property and other collateral in accordance
with Beneficiary's rights and remedies in respect to the personal
property and other collateral;
Beneficiary may in the sole discretion of Beneficiary, appoint Trustee
as the agent of Beneficiary for the purpose of disposition of the personal
property and other collateral in accordance with the Nevada Uniform
Commercial Code--Secured Transactions.
If Beneficiary should elect to proceed as to both the real property,
the personal property and other collateral in accordance with Beneficiary's
rights and remedies in respect to real property;
(a) All the real property and all the personal property and
other collateral may be sold, in the manner and at the time and place
provided in this Deed of Trust, in one lot, or in separate lots
consisting of any combination or
-42-
combinations of the real property, the personal property, and other
collateral, as the Beneficiary may elect, in the sole discretion of
Beneficiary.
(b) Trustor acknowledges and agrees that a disposition of the
personal property and other collateral in accordance with
Beneficiary's rights and remedies in respect to real property, as
hereinabove provided, is a commercially reasonable disposition of the
collateral.
If the Beneficiary should elect to proceed as to the personal property
and other collateral in accordance with Beneficiary's rights and remedies
in respect to personal property and other collateral, Beneficiary shall
have all the rights and remedies conferred on a secured party by NRS
104.9501 to NRS 104.9507, both inclusive.
IV.18. INTEREST AFTER EVENT OF DEFAULT.
-------------------------------
If an Event of Default shall have occurred and is continuing, all sums
outstanding and unpaid under the Notes and this Deed of Trust shall bear
interest at the interest rate on the Notes until such Event of Default has
been cured. Trustor's obligation to pay such interest shall be secured by
this Deed of Trust.
IV.19. FORECLOSURE; EXPENSES OF LITIGATION.
-----------------------------------
If Trustee forecloses, reasonable attorneys' fees for services in the
supervision of said foreclosure proceeding shall be allowed to the Trustee
and Beneficiary as part of the foreclosure costs. In the event of
foreclosure of the lien hereof, there shall be allowed and included as
additional indebtedness all reasonable expenditures and expenses which may
be paid or incurred by or on behalf of Beneficiary for attorneys fees,
appraiser's fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be
estimated as to items to be expended after foreclosure sale or entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies and guarantees, and similar data and
assurances with respect to title as Beneficiary may deem reasonably
advisable either to prosecute such suit or to evidence to a bidder at any
sale which may be had pursuant to such decree the true condition of the
title to or the value of the Trust Estate or any portion thereof. All
expenditures and expenses of the nature in this section mentioned, and such
expenses and fees as may be incurred in the protection of the Trust Estate
and the maintenance of the lien and security interest of this Deed of
Trust, including the fees of any attorney employed by Beneficiary in any
litigation or proceeding affecting this Deed of Trust or any Loan Document,
the Trust Estate or any portion thereof, including, without limitation,
civil, probate, appellate and bankruptcy proceedings, or in preparation for
the commencement or defense of any proceeding or threatened suit or
proceeding, shall be immediately due and payable by Trustor, with interest
thereon at the interest rate on the Notes, and shall be secured by this
Deed of Trust. Trustee waives its right to any
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statutory fee in connection with any judicial or nonjudicial foreclosure of
the lien hereof and agrees to accept a reasonable fee for such services.
IV.20. DEFICIENCY JUDGMENTS.
--------------------
If after foreclosure of this Deed of Trust or Trustee's sale
hereunder, there shall remain any deficiency with respect to any amounts
payable under the Notes or hereunder or any amounts secured hereby, and
Beneficiary shall institute any proceedings to recover such deficiency or
deficiencies, all such amounts shall continue to bear interest at the
interest rate on the Notes. Trustor waives any defense to Beneficiary's
recovery against Trustor of any deficiency after any foreclosure sale of
the Trust Estate. Trustor expressly waives any defense or benefits that
may be derived from any statute granting Trustor any defense to any such
recovery by Beneficiary. In addition, Beneficiary and Trustee shall be
entitled to recovery of all of their reasonable costs and expenditures
(including without limitation any court imposed costs) in connection with
such proceedings, including their reasonable attorneys' fees, appraisal
fees and the other costs, fees and expenditures referred to in Section 4.19
above. This provision shall survive any foreclosure or sale of the Trust
Estate, any portion thereof and/or the extinguishment of the lien hereof.
IV.21. WAIVER OF JURY TRIAL.
--------------------
To the fullest extent permitted by law, Beneficiary and Trustor each
waive any right to have a jury participate in resolving any dispute whether
sounding in contract, tort or otherwise arising out of, connected with,
related to or incidental to the relationship established between them in
connection with the Notes, this Deed of Trust or any other Loan Document.
Any such dispute shall be resolved in a bench trial without a jury.
IV.22. EXCULPATION OF BENEFICIARY.
--------------------------
The acceptance by Beneficiary of the assignment contained herein with
all of the rights, powers, privileges and authority created hereby shall
not, prior to entry upon and taking possession of the Trust Estate by
Beneficiary, be deemed or construed to make Beneficiary a "mortgagee in
possession"; nor thereafter or at any time or in any event obligate
Beneficiary to appear in or defend any action or proceeding relating to the
Space Leases, the Rents or the Trust Estate, or to take any action
hereunder or to expend any money or incur any expenses or perform or
discharge any obligation, duty or liability under any Space Lease or to
assume any obligation or responsibility for any security deposits or other
deposits except to the extent such deposits are actually received by
Beneficiary, nor shall Beneficiary, prior to such entry and taking, be
liable in any way for any injury or damage to person or property sustained
by any Person in or about the Trust Estate.
ARTICLE V
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RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
------------------------------------
Notwithstanding anything to the contrary in this Deed of Trust, Trustor and
Beneficiary agree as follows.
V.1. EXERCISE OF REMEDIES BY TRUSTEE.
-------------------------------
To the extent that this Deed of Trust or applicable law, including all
applicable Gaming Laws, authorizes or empowers Beneficiary to exercise any
remedies set forth in Article Four hereof or otherwise, or perform any acts
in connection therewith, Trustee (but not to the exclusion of Beneficiary
unless so required under the law of the State of Nevada) shall have the
power to exercise any or all such remedies, and to perform any acts
provided for in this Deed of Trust in connection therewith, all for the
benefit of Beneficiary and on Beneficiary's behalf in accordance with
applicable law of the State of Nevada. In connection therewith, Trustee:
(a) shall not exercise, or waive the exercise of, any Beneficiary's
Remedies (other than any rights or Trustee to any indemnity or
reimbursement), except at Beneficiary's request, and (b) shall exercise, or
waive the exercise of, any or all of Beneficiary's remedies at
Beneficiary's request, and in accordance with Beneficiary's directions as
to the manner of such exercise or waiver. Trustee may, however, decline to
follow Beneficiary's request or direction if Trustee shall be advised by
counsel that the action or proceeding, or manner thereof, so directed may
not lawfully be taken or waived.
V.2. RIGHTS AND PRIVILEGES OF TRUSTEE.
--------------------------------
To the extent that this Deed of Trust requires Trustor to indemnify
Beneficiary or reimburse Beneficiary for any expenditures Beneficiary may
incur, Trustee shall be entitled to the same indemnity and the same rights
to reimbursement of expenses as Beneficiary, subject to such limitations
and conditions as would apply in the case of Beneficiary. To the extent
that this Deed of Trust negates or limits Beneficiary's liability as to any
matter, Trustee shall be entitled to the same negation or limitation of
liability. To the extent that Trustor, pursuant to this Deed of Trust,
appoints Beneficiary as Trustor's attorney in fact for any purpose,
Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Trustor's behalf without joinder or confirmation by the
other.
V.3. RESIGNATION OR REPLACEMENT OF TRUSTEE.
-------------------------------------
Trustee may resign by an instrument in writing addressed to
Beneficiary, and Trustee may be removed at any time with or without cause
(i.e., in Beneficiary's sole and absolute discretion) by an instrument in
writing executed by Beneficiary. In case of the
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death, resignation, removal or disqualification of Trustee or if for any
reason Beneficiary shall deem it desirable to appoint a substitute,
successor or replacement Trustee to act instead of Trustee originally named
(or in place of any substitute, successor or replacement Trustee), then
Beneficiary shall have the right and is hereby authorized and empowered to
appoint a successor, substitute or replacement Trustee, without any
formality other than appointment and designation in writing executed by
Beneficiary, which instrument shall be recorded if required by the law of
the State of Nevada. The law of the State of Nevada shall govern the
qualifications of any Trustee. The authority conferred upon Trustee by this
Deed of Trust shall automatically extend to any and all other successor,
substitute and replacement Trustee(s) successively until the Secured
Obligations have been paid in full or the Trust Estate has been sold
hereunder or released in accordance with the provisions of the Loan
Documents. Beneficiary's written appointment and designation of any Trustee
shall be full evidence of Beneficiary's right and authority to make the
same and of all facts therein recited. No confirmation, authorization,
approval or other action by Trustor shall be required in connection with
any resignation or other replacement of Trustee.
V.4. AUTHORITY OF BENEFICIARY.
------------------------
If Beneficiary is a banking corporation, state banking corporation or
a national banking association and the instrument of appointment of any
successor replacement Trustee is executed on Beneficiary's behalf by an
officer of such corporation, state banking corporation or national banking
association, then such appointment shall be conclusively presumed to be
executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of
Beneficiary.
V.5. EFFECT OF APPOINTMENT OF SUCCESSOR TRUSTEE.
------------------------------------------
Upon the appointment and designation of any successors, substitute or
replacement Trustee, Trustee's entire estate and title in the Trust Estate
shall vest in the designated successor, substitute or replacement Trustee.
Such successor, substitute or replacement Trustee shall thereupon succeed
to and shall hold, possess and execute all the rights, powers, privileges,
immunities and duties herein conferred upon Trustee. All references herein
to Trustee shall be deemed to refer to Trustee (including any successor or
substitute appointed and designated as herein provided) from time to time
acting hereunder.
V.6. CONFIRMATION OF TRANSFER AND SUCCESSION.
---------------------------------------
Upon the written request of Beneficiary or of any successor,
substitute or replacement Trustee, any former Trustee ceasing to act shall
execute and deliver an instrument transferring to such successor,
substitute or replacement Trustee all of the
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right, title, estate and interest in the Trust Estate of Trustee so ceasing
to act, together with all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee, and shall duly assign, transfer and
deliver all properties and moneys held by said Trustee hereunder to said
successor, substitute or replacement Trustee.
V.7. RATIFICATION.
------------
Trustor hereby ratifies and confirms any and all acts that any Trustee
may take or perform by virtue of this Deed of Trust.
V.8. EXCULPATION.
-----------
Trustee shall not be liable for any error of judgment or act done by
Trustee in good faith, or otherwise be responsible or accountable under any
circumstances whatsoever, except for Trustee's gross negligence, willful
misconduct or knowing violation of law. Trustee shall have the right to
rely on any instrument, document or signature authorizing or supporting any
action taken or proposed to be taken by it hereunder, believed by it in
good faith to be genuine. All moneys received by Trustee shall, until used
or applied as herein provided, by held in trust for the purposes for which
they were received, but need not be segregated in any manner from any other
moneys (except to the extent required by law). Trustee shall be under no
liability for interest on any moneys received by it hereunder.
V.9. ENDORSEMENT AND EXECUTION OF DOCUMENTS.
--------------------------------------
Upon Beneficiary's written request, Trustee shall, without liability
or notice to Trustor, execute, consent to, or join in any instrument or
agreement in connection with or necessary to effectuate the purposes of the
Loan Documents. Trustor hereby irrevocably designates Trustee as its
attorney in fact to execute, acknowledge and deliver, on Trustor's behalf
and in Trustor's name, all instruments or agreements necessary to implement
any provision(s) of this Deed of Trust or to further perfect the lien
created by this Deed of Trust on the Trust Property. This power of
attorney shall be deemed to be coupled with an interest and shall survive
any disability of Trustor.
V.10. MULTIPLE TRUSTEES.
-----------------
If Beneficiary appoints multiple trustees, then any Trustee,
individually may exercise all powers granted to Trustee under this
instrument, without the need for action by any other Trustee(s).
(1) TERMS OF TRUSTEE'S ACCEPTANCE. Trustee accepts the trust
-----------------------------
created by this Deed of Trust upon the following terms and conditions:
-47-
(2) DELEGATION. Trustee may exercise any of its powers through
----------
appointment attorney(s) in fact or agents.
(3) SECURITY. Trustee shall be under no obligation to take any
action upon any Event of Default unless furnished security or
indemnity, in form satisfactory to Trustee, against costs, expenses
and liabilities that the Trustee may incur.
(4) COSTS AND EXPENSES. Trustor shall reimburse Trustee, as
part of the Obligations secured hereunder, for all reasonable
disbursements and expenses (including reasonable legal fees and
expenses) incurred by reason of and as provided for in this Deed of
Trust, including any of the foregoing incurred in Trustee's
administering and executing the trust created by this Deed of Trust
and performing Trustee's duties and exercising Trustee's powers under
this Deed of Trust.
(5) RELEASE. Pursuant to the terms in this Section 5.11(d) and
Section 6.10, upon payment of the Obligations secured hereunder,
Beneficiary shall request Trustee to reconvey this Deed of Trust and
shall surrender all the Obligations secured hereunder to Trustee.
Trustee shall release this Deed of Trust without charge to Trustor.
Trustor shall pay all costs of recordation, if any.
ARTICLE VI
MISCELLANEOUS PROVISIONS
------------------------
VI.1. HEIRS, SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES.
-------------------------------------------------
Whenever one of the parties hereto is named or referred to herein, the
heirs, successors and assigns of such party shall be included, and subject
to the limitations set forth in Section 1.10, all covenants and agreements
contained in this Deed of Trust, by or on behalf of Trustor or Beneficiary
shall bind and inure to the benefit of its heirs, successors and assigns,
whether so expressed or not.
VI.2. ADDRESSES FOR NOTICES, ETC.
--------------------------
Any notice, report, demand or other instrument authorized or required
to be given or furnished under this Deed of Trust to Trustor or Beneficiary
shall be deemed given or furnished (i) when addressed to the party intended
to receive the same, at the address of such party set forth below, and
delivered at such address or (ii) three (3) days after the same is
deposited in the United States mail as first class certified mail, return
receipt requested, postage prepaid, whether or not the same is actually
received by such party:
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Beneficiary: Firstar Bank of Minnesota, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
Trustor: Coast Hotels and Casinos, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Ph: (000) 000-0000
FAX: (000) 000-0000
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With a copy to: Xxxxxxx, Xxxxx & Xxxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Ph: (702) 382-5111
FAX: (000) 000-0000
Attn: K. Xxxxxxx Xxxxxxx
Trustee: National Title Company
000 X. Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: X.X. Xxxxxxxx
Tel: (000) 000-0000
FAX: (000) 000-0000
VI.3. CHANGE OF NOTICE ADDRESS.
------------------------
Any person may change the address to which any such notice, report,
demand or other instrument is to be delivered or mailed to that person, by
furnishing written notice of such change to the other party, but no such
notice of change shall be effective unless and until received by such other
party
VI.4. HEADINGS.
--------
The headings of the articles, sections, paragraphs and subdivisions of
this Deed of Trust are for convenience of reference only, are not to be
considered a part hereof, and shall not limit or expand or otherwise affect
any of the terms hereof.
VI.5. INVALID PROVISIONS TO AFFECT NO OTHERS.
--------------------------------------
In the event that any of the covenants, agreements, terms or
provisions contained herein or in the Notes, the Indenture or any other
Loan Document shall be invalid, illegal or unenforceable in any respect,
the validity of the lien hereof and the remaining covenants, agreements,
terms or provisions contained herein or in the Notes, the Indenture, the
Note Guarantees or any other Loan Document shall be in no way affected,
prejudiced or disturbed thereby. To the extent permitted by law, Trustor
waives any provision of law which renders any provision hereof prohibited
or unenforceable in any respect.
VI.6. CHANGES AND PRIORITY OVER INTERVENING LIENS.
-------------------------------------------
Neither this Deed of Trust nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by
an instrument in writing signed by the party against which enforcement of
the change, waiver, discharge or
-50-
termination is sought. Any agreement hereafter made by Trustor and
Beneficiary relating to this Deed of Trust shall be superior to the rights
of the holder of any intervening lien or encumbrance.
VI.7. ESTOPPEL CERTIFICATES.
---------------------
Within ten Business Days after Beneficiary's written request, Trustor
shall from time to time execute a certificate, in recordable form (an
"Estoppel Certificate"), stating, except to the extent it would be
inaccurate to so state: (a) the current amount of the Obligations secured
hereunder and all elements thereof, including principal, interest, and all
other elements; (b) Trustor has no defense, offset, claim, counterclaim,
right of recoupment, deduction, or reduction against any of the Obligations
secured hereunder; (c) non of the Loan Documents have been amended, whether
orally or in writing; (d) Trustor has no claims against Beneficiary of any
kind: (e) any Power of Attorney granted to Beneficiary is in full force and
effect; and (f) such other matters relating to this Deed of Trust, any Loan
Documents and the relationship of Trustor and Beneficiary shall request.
In addition, the Estoppel Certificate shall set forth the reasons why it
would be inaccurate to make any of the foregoing assurances ("a" through
"f").
VI.8. GOVERNING LAW.
-------------
This Deed of Trust shall be construed, interpreted, enforced and
governed by and in accordance with the laws of the State of Nevada, without
regard to its choice of law provisions.
VI.9. REQUIRED NOTICES.
----------------
Trustor shall notify Beneficiary promptly of the occurrence of any of
the following and shall immediately provide Beneficiary a copy of the
notice or documents referred to: (i) receipt of notice from any
Governmental Authority relating to all or any material part of the Trust
Estate if such notice relates to a default, or act, omission or
circumstances which would result in a default after notice or passage of
time or both; (ii) receipt of any notice from any tenant leasing all or any
material portion of the Trust Estate if such notice relates to a default or
act, omission or circumstance which would result in a default after notice
or passage of time or both; (iii) receipt of notice from the holder of any
Permitted Lien relating to a default or act, omission or circumstance which
would result in a default after notice or passage of time or both; (iv) the
commencement of any proceedings or the entry of any judgment, decree or
order materially affecting all or any portion of the Trust Estate or which
involve the potential liability of Trustor or its Affiliates in an amount
in excess of $25,000,000 (other than for personal injury actions and
related property damage suits which have been acknowledged by the insurer
to be covered by such insurance); or (v) commencement of any judicial or
administrative proceedings or the entry of any judgment, decree or order by
or against or otherwise
-51-
affecting Trustor or any Affiliate of Trustor, a material portion of the
Trust Estate, or a material portion of the Personal Property, or any other
action by any creditor or lessor thereof as a result of any default under
the terms of any lease.
VI.10. RECONVEYANCE.
------------
Upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed of Trust to Trustee
for cancellation and retention and upon payment of its fees, Trustee shall
reconvey, without warranty, the property then held hereunder. The recitals
in such reconveyance of any matters or facts shall be conclusive proof of
the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto."
VI.11. ATTORNEYS' FEES.
---------------
Without limiting any other provision contained herein, Trustor agrees
to pay all costs of Beneficiary or Trustee incurred in connection with the
enforcement of this Deed of Trust or the taking of this Deed of Trust as
security for the repayment of the Notes, including without limitation all
reasonable attorneys' fees whether or not suit is commenced, and including,
without limitation, fees incurred in connection with any probate,
appellate, bankruptcy, deficiency or any other litigation proceedings, all
of which sums shall be secured hereby.
VI.12. LATE CHARGES.
------------
By accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive its right to collect any late charge thereon or
interest thereon at the interest rate on the Notes, if so provided, not
then paid or its right either to require prompt payment when due of all
other sums so secured or to declare default for failure to pay any amounts
not so paid.
VI.13. COST OF ACCOUNTING.
------------------
Trustor shall pay to Beneficiary, for and on account of the
preparation and rendition of any accounting, which Trustor may be entitled
to require under any law or statute now or hereafter providing therefor,
the reasonable costs thereof.
VI.14. RIGHT OF ENTRY.
--------------
Subject to compliance with applicable Gaming Laws, Beneficiary may at
any reasonable time or times make or cause to be made entry upon and
inspections of the Trust Estate or any part thereof in person or by agent;
provided that Beneficiary shall use its best efforts not to interfere with
Trustor's operations on the Property.
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VI.15. CORRECTIONS.
-----------
Trustor shall, upon request of Trustee, promptly correct any defect,
error or omission which may be discovered in the contents of this Deed of
Trust or in the execution or acknowledgment hereof, and shall execute,
acknowledge and deliver such further instruments and do such further acts
as may be necessary or as may be reasonably requested by Trustee to carry
out more effectively the purposes of this Deed of Trust, to subject to the
lien and security interest hereby created any of Trustor's properties,
rights or interest covered or intended to be covered hereby, and to perfect
and maintain such lien and security interest.
VI.16. STATUTE OF LIMITATIONS.
----------------------
To the fullest extent allowed by the law, the right to plead, use or
assert any statute of limitations as a plea or defense or bar of any kind,
or for any purpose, to any debt, demand or obligation secured or to be
secured hereby, or to any complaint or other pleading or proceeding filed,
instituted or maintained for the purpose of enforcing this Deed of Trust or
any rights hereunder, is hereby waived by Trustor.
VI.17. SUBROGATION.
-----------
Should the proceeds of the loan made by Beneficiary to Trustor,
repayment of which is hereby secured, or any part thereof, or any amount
paid out or advanced by Beneficiary, be used directly or indirectly to pay
off, discharge, or satisfy, in whole or in part, any prior or superior lien
or encumbrance upon the Trust Estate, or any part thereof, then, as
additional security hereunder, Trustee, on behalf of Beneficiary, shall be
subrogated to any and all rights, superior titles, liens, and equities
owned or claimed by any owner or holder of said outstanding liens, charges,
and indebtedness, however remote, regardless of whether said liens,
charges, and indebtedness are acquired by assignment or have been released
of record by the holder thereof upon payment.
VI.18. JOINT AND SEVERAL LIABILITY.
---------------------------
All obligations of Trustor hereunder, if more than one, are joint and
several. Recourse for deficiency after sale hereunder may be had against
the property of Trustor, without, however, creating a present or other lien
or charge thereon.
VI.19. CONTEXT.
-------
In this Deed of Trust, whenever the context so requires, the neuter
includes the masculine and feminine, and the singular including the plural,
and vice versa.
-53-
VI.20. TIME.
----
Time is of the essence of each and every term, covenant and condition
hereof. Unless otherwise specified herein, any reference to "days" in this
Deed of Trust shall be deemed to mean "calendar days."
VI.21. INTERPRETATION.
--------------
As used in this Deed of Trust unless the context clearly requires
otherwise: The terms "herein" or "hereunder" and similar terms without
reference to a particular section shall refer to the entire Deed of Trust
and not just to the section in which such terms appear; the term "lien"
shall also mean a security interest, and the term "security interest" shall
also mean a lien.
VI.22. EFFECT OF NRS (S) 107.030.
-------------------------
To the extent not inconsistent herewith, the provisions of NRS (S)
107.030 are included herein by reference.
VI.23. AMENDMENTS.
----------
This Deed of Trust cannot be waived, changed, discharged or terminated
orally, but only by an instrument in writing signed by the party against
whom enforcement of any waiver, change, discharge or termination is sought
and only as permitted by the provisions of the Indenture.
VI.24. NO CONFLICTS.
------------
In the event that any of the provisions contained herein conflict with
the Security Agreement, the provisions contained in the Security Agreement
shall prevail.
VI.25. INTERCREDITOR AGREEMENT.
-----------------------
Notwithstanding anything herein to the contrary, all rights and
remedies of Beneficiary under this Deed of Trust are expressly subject to
the terms and conditions of the Intercreditor Agreement.
ARTICLE VII
POWER OF ATTORNEY
-----------------
VII.1. GRANT OF POWER.
--------------
-54-
Trustor irrevocably appoints Beneficiary and any successor thereto as
its attorney-in-fact, with full power and authority, including the power of
substitution, exercisable only during the continuance of an Event of
Default to act for Trustor in its name, place and stead as hereinafter
provided:
VII.2. POSSESSION AND COMPLETION.
-------------------------
To take possession of the Land and the Resorts, remove all employees,
contractors and agents of Trustor therefrom, complete or attempt to
complete the work of construction of the Orleans Hotel and Casino, and
market, sell or lease the Land and the Resorts.
VII.3. PLANS AND SPECIFICATIONS.
------------------------
To make such additions, changes and corrections in the current Plans
and Specifications as may be necessary or desirable, in Beneficiary's
reasonable discretion, or as it deems proper to complete the restoration of
the Resorts.
VII.4. EMPLOYMENT OF OTHERS.
--------------------
To employ such contractors, subcontractors, suppliers, architects,
inspectors, consultants, property managers and other agents as Beneficiary,
in its discretion, deems proper for the restoration of the Resorts, for the
protection or clearance of title to the Land or Personal Property, or for
the protection of Beneficiary's interests with respect thereto.
VII.5. SECURITY GUARDS.
---------------
To employ watchmen to protect the Land and the Resorts from injury.
VII.6. COMPROMISE CLAIMS.
-----------------
To pay, settle or compromise all bills and claims then existing or
thereafter arising against Trustor, which Beneficiary, in its discretion,
deems proper for the protection or clearance of title to the Land or
Personal Property, or for the protection of Beneficiary's interests with
respect thereto.
VII.7. LEGAL PROCEEDINGS.
-----------------
To prosecute and defend all actions and proceedings in connection with
the Land or the Resorts.
VII.8. OTHER ACTS.
----------
-55-
To execute, acknowledge and deliver all other instruments and
documents in the name of Trustor that are necessary or desirable, to
exercise Trustor's rights under all contracts concerning the Land or the
Resorts, including, without limitation, under any Space Leases, and to do
all other acts with respect to the Land or the Resorts that Trustor might
do on its own behalf, as Beneficiary, in its reasonable discretion, deems
proper.
-56-
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust, Assignment of
Rents, Leases and Security Agreement the day and year first above written.
COAST HOTELS AND CASINOS, INC.
a Nevada corporation,
as Trustor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & COO
-57-
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
On this ____ day of November, 1997, personally appeared before me, a
notary public, _____________________, personally known or proven to me to be the
person whose name is subscribed to the above instrument who acknowledged that he
executed the instrument.
_________________________________
NOTARY PUBLIC
-58-
SCHEDULE "A-1"
PARCEL I:
The South Half (S1/2) of the Southeast Quarter (SE1/4) of the Southeast Quarter
(SEI/4) of Section 18, Township 21 South, Range 61 East, M.D.B. & M.
EXCEPTING THEREFROM the Easterly 50 feet as conveyed to the County of Xxxxx for
road and public utility purposes as disclosed by Document No. 1060811 in Book
1101, recorded August 14, 1979, Official Records, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM those portions of Flamingo Road and Valley View
Boulevard a conveyed to Xxxxx County by Document No. 1261245 in Book 1302,
recorded October 27, 1980, Official Records, Xxxxx County, Nevada.
PARCEL II:
That portion of the Southeast Quarter (SE1/4) of the Southeast Quarter (SEI/4)
of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 61 East, M.D.B. & M., more particularly
described as Lot 2, as shown by Parcel Map in File 52, Page 91, recorded May 20,
1987 in Book 870520 as Document No. 00643, of Official Records, Xxxxx County,
Nevada.
SCHEDULE "A-2"
A portion of the southeast Quarter (SE1/4) of the Southwest Quarter (SW1/4) of
Section 18, Township 20 South, Range 61 East, M.D.B. & M., described as follows:
BEGINNING at the Northeast corner of the Southwest Quarter (SW1/4) of Section
18; thence South 1 degree 57' 55" East, along the East line of said Southeast
Quarter (SE1/4) of the Southwest Quarter (SW1/4) of Section 18, a distance of
996.86 feet; thence South 89 degrees 26' 34" West, 330 feet; thence South 1
degree 57' 55" East, 279.99 feet to a point 50.00 feet Northerly of, and
measured at right angles to the South line of said Section 18; thence South 89
degrees 26' 34" West, parallel with said South line of Section 18 a distance of
50.01 feet; thence South 1 degree 58' 27" East, 20.01 feet to a point 30.00 feet
Northerly of, and measured at right angles to said South line of Section 18;
thence South 89 degrees 26' 34" West, parallel with said South line of Section
18, a distance of 214.93 feet to a point on the Northeasterly right-of-way of
Rancho Drive (U.S. Highway 95), said right-of-way being 62.50 feet Northeasterly
of, and measured at right angles to the "O" line as shown on the right-of-way
drawings for said X.X. Xxxxxxx 00; thence North 36 degrees 42' 02" West,
parallel with said "O" line, 1600.72 feet to a point on the North line of said
Southeast Quarter (SE1/4) of the Southwest Quarter (SW1/4) of Section 18; thence
North 89 degrees 17' 52" East, 1507.20 feet to the Point of Beginning.
SCHEDULE "A-3"
PARCEL I:
That portion of the Northwest Quarter (NW1/4) of the Southwest Quarter (SW1/4)
of Section 17, Township 21 South, Range 61 East, M.D.B. & M., described as
follows:
Lot One (1) as shown by map thereof on File 55 of Parcel Maps, Page 40, in the
Office of the County Recorder of Xxxxx County, Nevada recorded January 27, 1988
in Book 880127 as Document No. 530.
PARCEL II:
That portion of the Northwest Quarter (NW1/4) of the Southwest Quarter (SWI/4)
of Section 17, Township 21 South, Range 61 East, M.D.B. & M., described as
follows:
Lot Two (2) as shown by map thereof on File 55 of Parcel Maps, Page 40, in the
Office of the County Recorder of Xxxxx County, Nevada recorded January 27, 1988
in Book 880127 as Document No. 530.
SCHEDULE "A-4"
That portion of the Northwest Quarter (NW1/4) of the Northwest Quarter (NW1/4)
of Section 21, Township 21 South, Range 61 East, M.D.M., described as follows:
COMMENCING at the Northwest (NW) corner of said Section 21, South 88 degrees 05'
38" East along the North line of said Section 21, a distance of 155.55 feet to a
point on the East line of U.S. Highway No. 91, as conveyed by the Southern
Nevada Power Company to the State of Nevada by Deed recorded January 23, 1943 as
Document No. 159436, Xxxxx County, Nevada Records, the true point of beginning;
thence South 00 degrees 02' East along the said East line, a distance of 200.11
feet to a point; thence South 88 degrees 05' 38" East parallel to the said North
line, a distance of 500.00 feet to a point; thence North 00" 02' West parallel
to the said East line, a distance of 200.11 feet to a point on the said North
line; thence North 88 degrees 05' 38" West along the said North line, a distance
of 500.00 feet to. the TRUE POINT OF BEGINNING.
EXCEPTING therefrom the Easterly 30 feet thereof.
Also, a portion of the North 200 feet of the Northwest Quarter (NW1/4) of the
Northwest Quarter (NWI/4) of Section 21, Township 21 South, Range 61 East,
M.D.M., and being a portion of that certain right-of-way (150 feet wide) granted
to the State of Nevada by Southern Nevada Power Co. on January 23, 1943 and
recorded as Document No. 159436 in Book 43 of Deeds, Pages 191 and 192, Xxxxx
County, Nevada Records. The parcel of land to be conveyed is that portion of
the above referred to right-of-way described as follows, to-wit:
Being all of the aforementioned right-of-way lying right or Easterly of a line
located 50.00 feet right or Easterly of and parallel to the "0" line centerline
of U.S. Highway 91 (S.R.6) as staked and constructed in 1951 and lying right or
Easterly of Highway Engineer's Station "0" 934, approximately to Highway
Engineer's Station "0" 936, approximately, and being that parcel remised,
released and quitclaimed unto the Southern Nevada Power Co. by the State of
Nevada, by Quitclaim Deed dated December 20, 1957 and recorded January 10, 1958
as Document No. 122228, Official Records, Book No. 149, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the interest in and to the South 40 feet of the
hereinabove described parcel of land as conveyed to the County of Xxxxx for road
purposes by Deed recorded September 9, 1953 as Document No. 413334, Official
Records of Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the Northerly Ten (10) feet of the Southerly Fifty
(50) feet, together with that certain radius in the Southwest corner thereof
bounded as follows: On the West side by the East line of U.S. Highway 91, on
the South side by the North line of the South 50.00 feet and on the Northeast
side by the arc of a circle concave to the Northeast having a radius of 25.00
feet that is tangent to the East line of U.S. Highway 91 and tangent to the
North line of said South 50.00 feet as conveyed to the County of Xxxxx by Deed
recorded November 6, 1985 in Book 2213 as Document No. 2172026.
SCHEDULE "A-5"
A strip of land Two Hundred (200) feet wide along the North line of the
Northwest Quarter (NW1/4) of Section Twenty-one (21), Township Twenty-one (21)
South of Range Sixty-one (61) East of the M.D.B. & M., particularly described as
beginning at the Northwest corner of Section Twenty-one (21); thence East along
the North line of said Section to the Northeast corner of the Northwest Quarter
(NW114) of said Section; thence South at right angles Two Hundred (200) feet;
thence West parallel with the North line of said Section to the West line
thereof; thence North Two Hundred (200) feet to the Place of Beginning.
EXCEPTING THEREFROM that portion of the Northwest Quarter (NW1/4) of the
Northwest Quarter (NW1/4) of Section 21, Township 21 South, Range 61 East,
M.D.M., described as follows:
COMMENCING at the Northwest (NW) corner of said Section 21, South 88 degrees 05'
38" East along the North line of said Section 21, a distance of 155.55 feet to a
point on the East line of U.S. Highway No. 91, as conveyed by the Southern
Nevada Power Company to the State of Nevada by Deed recorded January 23, 1943 as
Document No. 159436, Xxxxx County, Nevada Records, the true point of beginning;
thence South 00 degrees 02' East along the said East line, a distance of 200.11
feet to a point; thence South 88 degrees 05' 38" East parallel to the said North
line, a distance of 500.00 feet to a point; thence North 00 degrees 02' West
parallel to the said East line, a distance of 200.11 feet to a point on the said
North line; thence North 88 degrees 05' 38" West along the said North line, a
distance of 500.00 feet to the TRUE POINT OF BEGINNING.
Also, a portion of the North 200 feet of the Northwest Quarter (NW1/4) of the
Northwest Quarter (NW114) of Section 21, Township 21 South, Range 61 East,
M.D.M., and being a portion of that certain right-of-way (150 feet wide) granted
to the State of Nevada by Southern Nevada Power Co. on January 23, 1943 and
recorded as Document No. 159436 in Book 43 of Deeds, Pages 191 and 192, Xxxxx
County, Nevada Records. The parcel of land to be conveyed is that portion of
the above referred to right-of-way described as follows, to-wit:
Being all of the aforementioned right-of-way lying right or Easterly of a line
located 50.00 feet right or Easterly of and parallel to the "0" line centerline
of U.S. Highway 91 (S.R.6) as staked and constructed in 1951 and lying right or
Easterly of Highway Engineer's Station "0" 934, approximately to Highway
Engineer's Station "0" 936, approximately, and being that parcel remised,
released and quitclaimed unto the Southern Nevada Power Co. by the State of
Nevada, by Quitclaim Deed dated December 20, 1957 and recorded January 10, 1958
as Document No. 122228, official Records, Book No. 149, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the interest in and to the South 40 feet of the
hereinabove described parcel of land as conveyed to the County of Xxxxx for road
purposes by Deed recorded September 9, 1953 as Document No. 413334, Official
Records of Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the Northerly Ten (10) feet of the Southerly Fifty
(50) feet, together with that certain radius in the Southwest corner thereof
bounded as follows: On the West side by the East line of U.S. Highway 91, on the
South side by the North line of the South 50.00 feet and on the Northeast side
by the arc of a circle concave to the Northeast having a radius of 25.00 feet
that is tangent to the East line of U.S. Highway 91 and tangent to the North
line of said South 50.00 feet as conveyed to the County of Xxxxx by Deed
recorded November 6, 1985 in Book 2213 as Document No. 2172026.
FURTHER EXCEPTING THEREFROM that portion of land as conveyed to the State of
Nevada by Final Order of Condemnation recorded May 30, 1995 in Book 950530 as
Document No. 00882 of official Records, Xxxxx County, Nevada.
SCHEDULE "A-6"
The East Half (El/2) of the Southwest Quarter (SW1/4) of Section 19, Township 21
South, Range 61 East, M.D.B. & M.
EXCEPTING THEREFROM the southerly 50 feet as granted to the County of Xxxxx for
road, utilities and other public purposes by Document No; 444500, recorded July
7, 1964.
FURTHER EXCEPTING THEREFROM the West Thirty feet (30.00') of said land, together
with that certain spandrel area in the Southwest corner thereof, also being the
Northeast corner of the intersection of Tropicana Avenue and Cameron Street,
bounded as follows: On the South by the North line of the South Fifty feet
(50.00'); on the West by the East line of the West Thirty feet (30.00'); and on
the Northeast by the arc of a curve concave Northeasterly, having a radius of
Twenty-five feet (25.00') and being tangent to the North line of said South
Fifty feet (50.00') and to the East line of said West Thirty feet (30.00').
FURTHER EXCEPTING THEREFROM the East Forty feet (40.00') of said land, together
with that certain spandrel area in the Southeast corner thereof, also being the
Northwest corner of the intersection of Tropicana Avenue and Xxxxxxx Street,
bounded as follows: on the East by the West line of the East Forty feet
(40.00'); on the South by the North line of the South Fifty feet (50.00'); and
on the Northwest by the arc of a curve concave Northwesterly, having a radius of
Twenty-five feet (25.00') and being tangent to the West line of said East Forty
feet (40.00'); and to the North line of said South Fifty feet (50.00').
FURTHER EXCEPTING THEREFROM the North Thirty feet (30.00') together with that
spandrel area in the Northwest corner thereof, also being the Southeast corner
of the intersection of Cameron Street and Xxxxxx Avenue, bounded as follows: On
the North by the South line of the North Thirty feet (30.00'); on the West by
the East line of the West Thirty feet (30.00'); and on the Southeast by the arc
of a curve concave to the Southeast having a radius of Twenty feet (20.00') and
being tangent to the South line of said North Thirty feet (30.00') and to the
East line of said West Thirty feet (30.00'); also together with that other
spandrel area in the Northeast corner thereof being the Southwest corner of the
intersection of Xxxxxx Avenue and Xxxxxxx Street, bounded as follows: On the
North by the South line of the North Thirty feet (30.00'); on the East by the
East line of the Southwest Quarter (SW1/4) of Section 19; and on the Southwest
by the arc of a curve concave to the Southwest having a radius of Twenty-five
feet (25.00') and being tangent to the South line of said North Thirty feet
(30.00') and to the West line of the East Forty feet (40.00'); and on the South
side by the prolongation of a line radial to the curve's point of tangency with
the West line of the East Forty feet (40.00'), as conveyed to Xxxxx County for
roads and other public purposes by Deed recorded October 21, 1976 as Document
No. 630256 and by Deed recorded May 23, 1978 as Document No. 850472 and by Deed
recorded February 27, 1986 in Book 860227 as Document No. 00275 and by Deed
recorded February 25, 1989 in Book 890225 as Document Nos. 00659 and 00660 and
by Deed recorded December 7, 1990 in Book 901207 as Document Nos. 00731 and
00732 of Official Records, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM that portion conveyed to Xxxxx County by Grant,
Bargain, Sale Deed recorded November 21, 1996 as Document No. 1951 of Official
Records, Xxxxx County, Nevada. More particularly described as follows:
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Cameron
Street, thence North 89 degrees 53' 40" East, 370.62 feet to a point on the
centerline of Tropicana Avenue, thence North 00 degrees 06' 20" West, 50.00 feet
to a point on the existing Northern right-of-way line of Tropicana Avenue, also
being the TRUE POINT OF BEGINNING; thence North 00 degrees 06' 20" West, 14.00
feet to a point; thence North 89 degrees 53' 40" East, 120.76 feet to a point on
a curve, radius point of said curve is located South 00 degrees 06' 20" East,
266.00 feet from the previous point; thence on a curve to the right, subtending
a central angle of 13 degrees 10' 25", and having a radius of 266.00 feet along
said curve an arc length of 61.16 feet to a point of compound curvature of a
curve to the left. Thence along said curve to the left, subtending a central
angle of 13 degrees 10' 25", and having a radius of 266.00 feet an arc length of
61.16 feet to a point of curve located on the existing right-of-way of Tropicana
Avenue, thence south 89 degrees 53' 40" West, 242.00 feet to the TRUE POINT OF
BEGINNING.
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Cameron
Street, thence North 89 degrees 53' 40" East, 572.62 feet to a point on the
centerline of Tropicana Avenue, thence North 00 degrees 06' 20" West, 50.00
feet to a point on the existing Northern right-of-way of Tropicana Avenue, also
being the TRUE POINT OF BEGINNING; thence North 00 degrees 06' 20" West, 12.00
feet, thence North 89 degrees 53' 40" East, 108.50 feet to a point of curve,
radius point of said curve is located South 00 degrees 06' 20" East, 300.00
feet, from the previous point; thence on a curve to the right, subtending a
central angle of 11 degrees 29' 50", and having a radius of 300.00 feet along
said curve an arc length of 60.20 feet to a point of compound curvature of a
curve to the left; subtending a central angle of 12 degrees 28' 13", and having
a radius of 300.00 feet, along said curve an arc length of 65.29 feet to a point
of curve on the existing right-of-way of Tropicana Avenue; thence South 89
degrees 53' 40" West, 233.19 feet to the TRUE POINT OF BEGINNING.
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Cameron
Street, thence North 89 degrees 53' 40" East, 1087.48 feet to a point on the
centerline of Tropicana Avenue, thence North 00 degrees 06' 20" West, 50.00 feet
to the TRUE POINT OF BEGINNING, located on the existing Northern right-of-way
line of Tropicana Avenue, thence North 00 degrees 06' 20" West, 14.00
feet; thence North 89 degrees 53' 40" East, 6.23 feet to a point of curve;
radius point of said curve is located South 00 degrees 06' 20" East, 266.00 feet
from the previous point; thence along a curve to the right subtending a central
angle of 13 degrees 10' 25", and having a radius of 266.00 feet, an arc length
of 61.16 feet to a point of compound curvature of a curve to the left; thence
along said curve to the left, subtending a central angle of 13 degrees 10' 25",
and having a radius of 266.00 feet, an arc length of 61.16 feet to a point on
the existing Northern right-of-way of Tropicana Avenue; thence South 89 degrees
53' 40" West, 127.47 feet to the TRUE POINT OF BEGINNING.
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Xxxxxxx
Street; thence North 00 degrees 39' 24" West, 75.63 feet to a point on the
centerline of Xxxxxxx Street; thence South 89 degrees 20' 36" West, 40.00 feet
to a point of curve; also being the TRUE POINT OF BEGINNING, on the existing
Western right-of-way line of Xxxxxxx Street, radius point of said curve is
located South 89 degrees 20' 36" West, 25.00 feet; from the previous point,
thence on a curve to the right, subtending a central angle of 90 degrees 33'
04", and having a radius of 25.00 feet, an arc length of 39.51 feet to a point
of curve on the existing Northern right-of-way of Tropicana Avenue; thence South
89 degrees 53' 40" West, 13.00 feet, continuing along the existing Northern
right-of-way line of Tropicana Avenue to a point of curve; radius point of said
curve is located North 00 degrees 06' 20" West, 25.00 feet from the previous
point; thence on a curve to the left subtending a central angle of 90 degrees
33' 04", and having a radius of 25.00 feet, an arc length of 39.51 feet to a
point of curve; thence North 00 degrees 39' 24" West, 407.97 feet to a point of
curve; radius point of said curve is located North 89 degrees 20' 36" East,
205.00 feet from the previous point; thence along a curve to the right
subtending a central angle of 08 degrees 01' 57", and having a radius of 205.00
feet, an arc length of 28.74 feet to a point; thence North 07 degrees 22' 33"
East, 64.95 feet to a point of curve; radius point of said curve is located
North 82 degrees 37' 27" West, 195.00 feet from the previous point; thence along
a curve to the left, subtending a central angle of 08 degrees 01' 57", and
having a radius of 195.00 feet an arc length of 27.34 feet to a point of curve
on the existing Western right-of-way of Xxxxxxx Street; thence South 00 degrees
39' 24" East, 528.30 feet to the TRUE POINT OF BEGINNING.
EXHIBIT 1
(Landlord-Mortgagee Agreement Executed by Xxxxx Enterprises
Regarding Barbary Coast Lease)
CONSENT
-------
and
LANDLORD-MORTGAGEE AGREEMENT
----------------------------
THIS CONSENT AND LANDLORD-MORTGAGEE AGREEMENT ("Agreement") is dated
November 21, 1997 for purposes of reference only and is entered into by and
between FIRSTAR BANK OF MINNESOTA, N.A. (the "Trustee"), XXXXX ENTERPRISES, a
Nevada general partnership ("Landlord") and BARBARY COAST HOTEL AND CASINO, a
Nevada general partnership ("Lessee").
RECITALS
--------
A. Property and Lease. Landlord is the owner of real property in Xxxxx
------------------
County, Nevada, described in Exhibit "A" attached hereto and by this reference
incorporated herein (the "Premises"). Landlord and Lessee are parties to a
Lease Agreement dated May 1, 1992 relating to the Premises (the "Lease").
B. Reorganization. Lessee and Gold Coast Hotel and Casino, a Nevada
--------------
limited partnership, intend to reorganize in a transaction (the
"Reorganization") in which (i) the assets of Lessee will become the assets of
Coast Resorts, Inc., a Nevada corporation ("Resorts") and (ii) Resorts will then
immediately transfer and assign those assets to Coast Hotels and Casinos, Inc.,
a Nevada corporation ("Tenant") in capitalization of Tenant.
C. Notes. It is anticipated that Trustee will be the trustee under an
-----
Indenture (the "Indenture"), by and among Tenant as issuer, Resorts as
guarantor, and Trustee, pursuant to which, Tenant will issue 10 7/8% First
Mortgage Notes due 2001 (the "Notes") in a total principal amount not to exceed
SIXTEEN MILLION EIGHT HUNDRED THOUSAND DOLLARS ($16,800,000.00).
D. Obligations. In accordance with the anticipated requirements of the
-----------
Indenture, and as security for the Notes and other obligations of Tenant under
the Indenture (the "Obligations"), Tenant intends to execute as trustor and
deliver to Trustee, a Leasehold Deed of Trust, Security Agreement and Assignment
of Rents and Leases (the "Deed of Trust") encumbering Tenant's leasehold
interest in the Premises and the Lease. As additional security for the
Obligations, Tenant intends to grant to Trustee a security interest in Tenant's
inventory, equipment and other personal property now or hereafter located on the
Premises (the "Personal Property").
E. Reliance. Landlord acknowledges and understands that Lessee, Tenant,
--------
Resorts and Trustee, on behalf of the holders of Notes will rely upon the
provisions set forth in this Agreement.
CONSENT AND AGREEMENT
---------------------
In consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Consent to Assignment and Deed of Trust. Landlord hereby consents to
---------------------------------------
the assignment by Lessee of Lessee's leasehold interest under the Lease to
Resorts and the assignment of that leasehold interest thereafter to Tenant
incident to the Reorganization so long as Tenant agrees in writing, for the
benefit of Landlord, to assume the terms and conditions of the Lease and
Lessee's obligations thereunder. Landlord hereby consents to Tenant's grant to
Trustee of a lien on Tenant's leasehold interest in the Premises pursuant to the
terms of the Deed of Trust. Landlord agrees that the provisions of Paragraphs 3
through 10 below shall take effect upon the recording of the Deed of Trust.
Those provisions shall be solely for the benefit of Trustee, any successor
Trustee and the holders of the Notes and shall not inure to the benefit of any
other lender, person or entity without Landlord's prior written approval. Those
provisions shall expire and become null and void upon (i) full and complete
discharge of the obligations secured by the Deed of Trust, (ii) a full
reconveyance of the Deed of Trust or (iii) a Foreclosure Transfer (as defined in
Paragraph 5).
2. Status of Lease. Landlord certifies that (i) the Lease is in full
---------------
force and effect, (ii) no amendment has been made to the Lease, (iii) no default
exists under the Lease and (iv) rent and other charges have been paid to the
extent payable and have not been prepared more than one year in advance.
3. Personal Property. The Personal Property shall not be deemed to be a
-----------------
fixture or part of the underlying real estate but shall at all times be
considered personal property. Landlord waives and relinquishes any landlord's
lien, all rights of levy or constraint, security interest or other interest that
Landlord may now or hereafter have in any of the Personal Property, whether for
rent or otherwise; provided, however, that nothing in the foregoing shall
constitute a waiver or release by Landlord of any right or interest of Landlord
in the real property being leased by Landlord under the Lease or the building
and site improvements located on that property. Landlord agrees that Trustee,
at its option, may enter the Premises for the purpose of repossessing, removing,
selling or otherwise dealing with the Personal Property, and such license shall
be irrevocable and shall continue without charge for a period of ninety (90)
days after the receipt by Trustee of written notice from Landlord directing
removal of the Personal Property.
4. Notice and Cure Rights. No notice from Landlord shall be effective
----------------------
unless it is also given to Trustee. Any notice of default shall state the
nature of the default and shall specify the amounts of rent or other payments
claimed to be in default. In the event of a default by Tenant, under the Lease,
Landlord shall accept any curative acts undertaken by or at the instigation of
Trustee as if undertaken by Tenant. Trustee shall be given notice of any
arbitration or other proceeding or dispute between Landlord and Tenant and shall
have the right to intervene therein and be made a party thereto. Further,
Trustee shall receive notice, and a copy, of any
award or decision made in such arbitration or other proceeding. If Landlord
shall elect to terminate the Lease by reason of any default of Tenant, Trustee
shall have the rights set forth in Exhibit "B" attached hereto and by this
reference incorporated herein.
5. Assignment. Tenant's interest in the Lease may be assigned,
----------
transferred or conveyed pursuant to judicial or nonjudicial foreclosure or a
conveyance in lieu of foreclosure (a "Foreclosure Transfer"). If Trustee is the
transferee under a Foreclosure Transfer, Trustee may assign the Lease without
Landlord's prior written consent, but if the Lease is so assigned by Trustee
without Landlord's prior written consent, Trustee shall be and remain jointly
and severally liable with the assignee for any and all liability arising or
accruing under the Lease after the date of such assignment, including the
obligation to pay rent under the Lease. If Trustee is the transferee under a
Foreclosure Transfer and Trustee obtains Landlord's prior written consent to
assignment of the Lease as provided in the Lease, upon such assignment, Trustee
shall thereupon be released from all prospective liability as tenant under the
Lease from and after the date of such assignment so long as (but only so long
as) the assignee executes, acknowledges and delivers to Landlord an instrument
in writing by which assignee expressly assumes all of the obligations, terms and
conditions of the Lease. Notwithstanding anything in the foregoing to the
contrary, a Foreclosure Transfer shall not operate to release Tenant from any
liability of Tenant under the Lease, and a Foreclosure Transfer shall not
operate to release Trustee from any liability as tenant under the Lease for any
period during which Trustee has the right to possession of the Premises.
6. Extension Options. If the Deed of Trust is not reconveyed prior to
-----------------
January 1, 2003, and if Tenant has then failed to exercise its option to extend
the term of the Lease beyond May 1, 2003, then after January 31, 2003, but
before April 30, 2003, Landlord agrees to accept from Trustee, on behalf of
Tenant, the exercise of an option to extend the term of the Lease within the
time period set forth in the Lease for such exercise.
7. Amendment to Lease and Mortgage by Landlord. The cancellation,
-------------------------------------------
surrender or amendment of the Lease by Tenant shall not be effective without the
prior written consent of Trustee.
8. Insurance and Condemnation Proceeds. Notwithstanding any provisions
-----------------------------------
of the Lease to the contrary, any insurance or condemnation proceeds payable to
Tenant or the Trustee as a result of damage, destruction or condemnation of any
portion of the property or improvements thereto shall be paid to the respective
parties in order of priority, for handling in accordance with the terms of the
Deed of Trust, up to the amount of the obligations secured by the Deed of Trust.
Any remaining proceeds shall be distributed as provided in the Lease. Landlord
and Tenant shall not enter into any settlement or adjustment relating to such
proceeds without the prior written consent of the Trustee. Nothing in the
foregoing is intended to diminish or otherwise affect the amount of condemnation
or insurance proceeds payable to Landlord pursuant to the Lease or to diminish
or otherwise affect the amount of condemnation or insurance proceeds that would
be payable to or for the benefit of Tenant under the Lease absent the Deed of
Trust.
9. No Merger. If Tenant acquires the fee estate in the Premises, the
---------
Deed of Trust shall not merge out of existence but instead shall be, become and
continue as an encumbrance of the entire interests of Tenant in the Premises.
10. Estoppel Certificates. Within fifteen (15) days after written request
---------------------
by Tenant or Trustee, Landlord shall deliver to the requesting party (and any
other party identified by the requesting party) an estoppel certificate signed
by Landlord in form reasonably designated by the requesting party that certifies
as to (i) the rent payable under the Lease, (ii) the term of the Lease and the
rights of Tenant, if any, to extend the term of the Lease, (iii) the nature of
any defaults by Tenant alleged by Landlord and (iv) any other matters reasonably
requested by the requesting party. Within 15 days after written request by
Landlord or Trustee, Tenant shall deliver to the requesting party an estoppel
certificate signed by Tenant in form reasonably designated by Landlord or
Trustee that certifies as to (i) the rent payable under the Lease, (ii) the
nature of any defaults by Landlord alleged by Tenant and (iii) any other matters
reasonably requested by Landlord.
11. Miscellaneous. This Agreement may not be changed or terminated orally
-------------
and is binding upon, and inures to the benefit of, the parties hereto and each
of their respective successors and assigns. This Agreement shall be governed
by and construed in accordance with the laws of the State of Nevada. This
Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Consent and Landlord-Mortgagee Agreement to be effective as of the day and
year first above written.
XXXXX ENTERPRISES, a Nevada FIRSTAR BANK OF MINNESOTA, N.A.
general partnership as Trustee
By /s/ Xxxxxx X. Xxxxx, Xx, By /s/ Xxxxx Xxxxxx, III
---------------------------- -------------------------------
Name: Xxxxxx X. Xxxxx, Xx. Name: Xxxxx Xxxxxx, III
Title: Managing Partner Title: Vice President
By /s/ Xxxxx Xxxxx Helm
---------------------------
Name: Xxxxx Xxxxx Xxxx
Title:
COAST HOTELS AND CASINOS, INC.,
a Nevada corporation
By /s/ Xxxxxxx Xxxxxxx
-----------------------------
XXXXXXX XXXXXXX, Chairman of
the Board and Chief Executive Officer
STATE OF ______________)
) ss.:
COUNTY OF _____________)
This instrument was acknowledged before me on _________, 199_ by
____________ _________________ as ________ of XXXXX ENTERPRISES, a Nevada
general partnership.
________________________________
NOTARY PUBLIC
STATE OF ______________)
) ss.:
COUNTY OF _____________)
This instrument was acknowledged before me on __________, 199_ by
__________ ________________ as _________ of XXXXX ENTERPRISES, a Nevada general
partnership.
________________________________
NOTARY PUBLIC
STATE OF ______________)
) ss:
COUNTY OF _____________)
This instrument was acknowledged before me on __________, 199_ by
__________ _________________ as _____________ of FIRSTAR BANK OF MINNESOTA, N.A.
as Trustee.
_______________________________
NOTARY PUBLIC
STATE OF NEVADA )
) ss.:
COUNTY OF XXXXX )
This instrument was acknowledged before me on ____________, 199_ by XXXXXXX
XXXXXXX as Chairman of the Board and Chief Executive Officer of COAST HOTELS AND
CASINOS, INC., a Nevada corporation.
_______________________________
NOTARY PUBLIC
EXHIBIT "A"
That portion of the Northwest Quarter (NW1/4) of the Northwest Quarter (NWI/4)
of Section 21, Township 21 South, Range 61 East, M.D.M., described as follows:
COMMENCING at the Northwest (NW) corner of said Section 21, South 88 degrees 05'
38" East along the North line of said Section 21, a distance of 155.55 feet to a
point on the East line of U.S. Highway No. 91, as conveyed by the Southern
Nevada Power Company to the State of Nevada by Deed recorded January 23, 1943 as
Document No. 159436, Xxxxx County, Nevada Records, the true point of beginning;
thence South 00 degrees 02' East along the said East line, a distance of 200.11
feet to a point; thence South 88 degrees 05' 38" East parallel to the said North
line, a distance of 500.00 feet to a point; thence North 00 degrees 02' West
parallel to the said East line, a distance of 200.11 feet to a point on the said
North line; thence North 88 degrees 05' 38" West along the said North line, a
distance of 500.00 feet to the TRUE POINT OF BEGINNING.
EXCEPTING therefrom the Easterly 30 feet thereof.
Also, a portion of the North 200 feet of the Northwest Quarter (NW1/4) of the
Northwest Quarter (NW1/4) of Section 21, Township 21 South, Range 61 East,
M.D.M., and being a portion of that certain right-of-way (150 feet wide) granted
to the State of Nevada by Southern Nevada Power Co. on January 23, 1943 and
recorded as Document No. 159436 in Book 43 of Deeds, Pages 191 and 192, Xxxxx
County, Nevada Records. The parcel of land to be conveyed is that portion of
the above referred to right-of-way described as follows, to-wit:
Being all of the aforementioned right-of-way lying right or Easterly of a line
located 50.00 feet right or Easterly of and parallel to the "0" line centerline
of U.S. Highway 91 (S.R.6) as staked and constructed in 1951 and lying right or
Easterly of Highway Engineer's Station "0" 934, approximately to Highway
Engineer's Station "0" 936, approximately, and being that parcel remised,
released and quitclaimed unto the Southern Nevada Power Co. by the State of
Nevada, by Quitclaim Deed dated December 20, 1957 and recorded January 10, 1958
as Document No. 122228, Official Records, Book No. 149, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the interest in and to the South 40 feet of the
hereinabove described parcel of land as conveyed to the County of Xxxxx for road
purposes by Deed recorded September 9, 1953 as Document No. 413334, Official
Records of Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the Northerly Ten (10) feet of the Southerly Fifty
(50) feet, together with that certain radius in the Southwest corner thereof
bounded as follows: on the West side by the East line of U.S. Highway 91, on the
South side by the North line of the South 50.00 feet and on the Northeast side
by the arc of a circle concave to the Northeast having a radius of 25.00 feet
that is tangent to the East line of U.S. Highway 91 and tangent to the North
line of said South 50.00 feet as conveyed to the County of Xxxxx by Deed
recorded November 6, 1985 in Book 2213 as Document No. 2172026.
EXHIBIT "B"
If Landlord shall elect to terminate the Lease by reason of any default of
Tenant, prior to doing so, Landlord agrees to give notice of such election to
Tenant and Trustee, specifying the default or defaults of Tenant resulting in
such termination and further agrees as follows:
(a) Trustee may nullify any notice of termination by curing such
default prior to the effective date of termination.
(b) With respect to a termination resulting only from a default or
defaults which Trustee reasonably can cure, Trustee may nullify any such
notice of termination by doing all of the following:
(i) Curing or causing to be cured, within forty-five (45) days of
such notice, any monetary defaults and any other defaults which are
capable of cure within 45 days; and
(ii) Within 45 days of such notice, commencing to cure or causing
the commencement of cure of any other default and thereafter
diligently pursuing such cure to completion; and
(iii) During any cure period, paying or causing to be paid any
rent and other monetary obligations of Tenant under the Lease of which
Trustee has knowledge, as the same fall due.
(c) With respect to a termination resulting, in whole or in part, from
a default or defaults of Tenant which Trustee cannot reasonably cure,
Trustee may postpone and extend the specified date for such termination as
fixed by Landlord in its notice of termination, for a period of not more
than ninety (90) days; provided that Trustee shall agree with Landlord (by
giving a notice to that effect to Landlord) before the effective date of
termination, to accomplish the following within the times hereinafter
provided and shall, in fact, accomplish the following in a timely manner:
(i) cure or cause to be cured within forty-five (45) days of such
notice any then-existing monetary defaults of which Trustee has
knowledge;
(ii) pay or cause to be paid during such 90-day period (as it may
be extended as provided below) any rent and other monetary obligations
of Tenant under the Lease of which Trustee has knowledge, as the same
fall due;
(iii) promptly cure or cause to be cured any other defaults that
Trustee can cure and of which Trustee has knowledge;
(iv) take steps to acquire or sell Tenant's interest in the Lease
by
foreclosure of the Deed of Trust or otherwise; provided that the time
period for commencement of such steps shall be extended one day for
each day that Trustee is under any statutory or judicial restraint
precluding the taking of such steps; and
(v) prosecute to completion with reasonable diligence the steps
commenced pursuant to the preceding clause.
If, at the end of such 90-day period (as it may be extended), Trustee shall
be actively engaged in steps to acquire or sell Tenant's interest in the
Lease and is in compliance with the other conditions set forth in clauses
(i) through (v) above, including the payment of all rent and other monetary
obligations of Tenant as they fall due, the time for completion of such
steps shall be further extended upon the same conditions for such period as
shall be reasonably necessary to complete such steps with reasonable
diligence so long as, but only so long as Trustee continues to timely pay
or cause to be paid all rent and other monetary obligations of Tenant as
they fall due. If Tenant's interest is acquired or sold by foreclosure of
the Deed of Trust or otherwise during such 90-day period (as it may be
extended), the intended termination of the Lease by Landlord under the
subject notice will be automatically nullified, and the Lease will continue
as if the notice of termination had never been given so long as Trustee has
complied with the conditions set forth in clauses (i) through (v) above and
has commenced and is diligently pursuing the cure of all defaults which
Trustee can reasonably cure.
(d) If the Lease, without the consent of Trustee, is terminated for
any reason before the end of its stated term, as such stated term may be
extended, then Landlord shall, upon written request from Trustee made
within sixty (60) days after such termination, enter into a new lease of
the Premises with Trustee. The new lease shall be on the same terms and
conditions as the Lease (including without limitation any rights or options
to extend the term of the Lease or acquire the Premises) and shall have the
same priority as the Lease. Landlord's obligation to enter into such a new
lease shall be conditioned upon the following: (i) Trustee shall have
cured all monetary defaults and commenced, and diligently prosecuted, the
cure of all reasonably curable non-monetary defaults and (ii) Trustee shall
reimburse Landlord for all reasonable costs and expenses incurred in
entering into such new lease.
EXHIBIT 2
(Landlord-Mortgagee Agreement Executed by The Tiberti Company Regarding Orleans
Lease)
CONSENT
-------
and
LANDLORD-MORTGAGEE AGREEMENT
----------------------------
THIS CONSENT AND LANDLORD-MORTGAGEE AGREEMENT ("Agreement") is dated and
made effective as of November 21, 1997 and is entered into by and between
FIRSTAR BANK OF MINNESOTA, N.A. (the "Trustee"), THE TIBERTI COMPANY, a Nevada
general partnership ("Landlord") and COAST HOTELS AND CASINOS, INC., a Nevada
corporation ("Tenant").
RECITALS
--------
A. Property and Lease. Landlord is the owner of real property in Xxxxx
------------------
County, Nevada, described in Exhibit "A" attached hereto and by this reference
incorporated herein (the "Premises"). Landlord and Gold Coast Hotel and Casino,
a Nevada limited partnership ("Lessee") were parties to a Lease dated October 1,
1995 relating to the Premises (the "Lease").
B. Reorganization. Lessee and Barbary Coast Hotel and Casino, a Nevada
--------------
general partnership, have reorganized in a transaction (the "Reorganization") in
which (i) the assets of Lessee became the assets of Coast Resorts, Inc., a
Nevada corporation ("Resorts") and (ii) Resorts transferred and assigned those
assets to Tenant in capitalization of Tenant.
C. Notes. It is anticipated that Trustee will be the trustee under an
-----
Indenture (the "Indenture"), by and among Tenant as issuer, Resorts as
guarantor, Coast West, Inc., a Nevada corporation, as guarantor, and Trustee,
pursuant to which Tenant will issue 10 7/8% First Mortgage Notes due 2001 (the
"Notes") in a total principal amount of SIXTEEN MILLION EIGHT HUNDRED THOUSAND
DOLLARS ($16,800,000.00).
D. Obligations. In accordance with the anticipated requirements of the
-----------
Indenture, and as security for the Notes and other obligations of Tenant under
the Indenture (the "Obligations"), Tenant intends to execute as trustor and
deliver to Trustee, a Leasehold Deed of Trust, Security Agreement and Assignment
of Rents and Leases (the "Deed of Trust") encumbering Tenant's leasehold
interest in the Premises and the Lease. As additional security for the
obligations, Tenant intends to grant to Trustee a security interest in Tenant's
inventory, equipment and other personal property now or hereafter located on the
Premises (the "Personal Property").
E. Reliance. Landlord acknowledges and understands that Tenant, Resorts
--------
and Trustee, on behalf of the holders of Notes, will rely upon the provisions
set forth in this Agreement.
CONSENT AND AGREEMENT
---------------------
In consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Consent to Deed of Trust. Landlord hereby consents to Tenant's grant
------------------------
to Trustee of a lien on Tenant's leasehold interest in the Premises pursuant to
the terms of the Deed of Trust. Landlord agrees that the provisions of
Paragraphs 3 through 10 below shall take effect upon the recording of the Deed
of Trust. Those provisions shall be for the benefit of Trustee, any successor
Trustee and the holders of the Notes and shall not inure to the benefit of any
other lender, person or entity without Landlord's prior written approval. Those
provisions shall expire and become null and void upon (i) full and complete
discharge of the obligations secured by the Deed of Trust, (ii) a full
reconveyance of the Deed of Trust or (iii) a Foreclosure Transfer (as defined in
Paragraph 5).
2. Status of Lease. Landlord certifies that to the best of Landlord's
---------------
knowledge, (i) the Lease is in full force and effect, (ii) no amendment has been
made to the Lease, (iii) no default exists xxxxxx the Lease and (iv) rent and
other charges have been paid to the extent payable and have not been prepaid
more than one year in advance.
3. Personal Property. The Personal Property shall not be deemed to be a
-----------------
fixture or part of the underlying real estate but shall at all times be
considered personal property. Landlord waives and relinquishes any landlord's
lien, all rights of levy or constraint, security interest or other interest that
Landlord may now or hereafter have in any of the Personal Property, whether for
rent or otherwise; provided, however, that nothing in the foregoing shall
constitute a waiver or release by Landlord of any right or Interest of Landlord
in the real property being leased by Landlord under the Lease or the building
and site improvements located on that property. Landlord agrees that Trustee,
at its option, may enter the Premises for the purpose of repossessing, removing,
selling or otherwise dealing with the Personal Property, and such license shall
be irrevocable and shall continue without charge for a period of ninety (90)
days after the receipt by Trustee of written notice from Landlord directing
removal of the Personal Property.
4. Notice and Cure Rights. No notice from Landlord shall be effective
----------------------
unless it is also given to Trustee. Any notice of default shall state the
nature of the default and shall specify the amounts of rent or other payments
claimed to be in default. In the event of a default by Tenant under the Lease,
Landlord shall accept any curative acts undertaken by or at the instigation of
Trustee as if undertaken by Tenant. Trustee shall be given notice of any
arbitration or other proceeding or dispute between Landlord and Tenant and shall
have the right to intervene therein and be made a party thereto. Further,
Trustee shall receive notice, and a copy, of any award or decision made in such
arbitration or other proceeding. If Landlord shall elect to terminate the Lease
by reason of any default of Tenant, Trustee shall have the rights set forth in
Exhibit "B" attached hereto and by this reference incorporated herein.
5. Assignment. Tenant's interest in the Lease may be assigned,
----------
transferred or conveyed pursuant to judicial or non-judicial foreclosure or a
conveyance in lieu of foreclosure (a "Foreclosure Transfer"). If Trustee is the
transferee under a Foreclosure Transfer, Trustee may
assign the Lease without Landlord's prior written consent, but if the Lease is
so assigned by Trustee, and Landlord's prior written consent is either not
sought by Trustee or is sought by Trustee but reasonably withheld by Landlord,
Trustee shall be and remain jointly and severally liable with the assignee for
any and all liability arising or accruing under the Lease after the date of such
assignment, including the obligation to pay rent under the Lease. If Trustee is
the transferee under a Foreclosure Transfer and Trustee obtains Landlord's prior
written consent to assignment of the Lease as provided in the Lease, or if
Trustee seeks Landlord's prior written consent and Landlord unreasonably
withholds that consent, then upon such assignment, Trustee shall thereupon be
released from all prospective liability as tenant under the Lease from and after
the date of such assignment so long as (but only so long as) the assignee
executes, acknowledges and delivers to Landlord an instrument in writing by
which assignee expressly assumes all of the obligations, terms and conditions of
the Lease. Notwithstanding anything in the foregoing to the contrary, a
Foreclosure Transfer shall not operate to release Tenant from any liability of
Tenant under the Lease, and a Foreclosure Transfer shall not operate to release
Trustee from any liability as tenant under the Lease for any period during which
Trustee has the right to possession of the Premises.
6. INTENTIONALLY OMITTED
---------------------
7. Amendment to Lease and Mortgage by Landlord. The cancellation,
-------------------------------------------
surrender or amendment of the Lease by Tenant shall not be effective without the
prior written consent of Trustee.
8. Insurance and Condemnation Proceeds. Notwithstanding any provisions of
-----------------------------------
the Lease to the contrary, any insurance or condemnation proceeds payable to
Tenant or the Trustee as a result of damage, destruction or condemnation of any
portion of the property or improvements thereto shall be paid to the respective
parties in order of priority, for handling in accordance with the terms of the
Deed of Trust, up to the amount of the obligations secured by the Deed of Trust.
Any remaining proceeds shall be distributed as provided in the Lease. Landlord
and Tenant shall not enter into any settlement or adjustment relating to such
proceeds without the prior written consent of the Trustee. Nothing in the
foregoing is intended to diminish or otherwise affect the amount of condemnation
or insurance proceeds payable to Landlord pursuant to the Lease or to diminish
or otherwise affect the amount of condemnation or insurance proceeds that would
be payable to or for the benefit of Tenant under the Lease absent the Deed of
Trust.
9. No Merger. If Tenant acquires the fee estate in the Promises, the Deed
---------
of Trust shall not merge out of existence but instead shall be, become and
continue as an encumbrance of the entire interests of Tenant in the Premises.
10. Estoppel Certificates. Within fifteen (15) days after written request
---------------------
by Tenant or Trustee, Landlord shall deliver to the requesting party (and any
other party identified by the requesting party) an estoppel certificate signed
by Landlord in form reasonably designated by the requesting party that certifies
as to (i) the rent payable under the Lease, (ii) the term of the Lease
and the rights of Tenant, if any, to extend the term of the Lease, (iii) the
nature of any defaults by Tenant alleged by Landlord and (iv) any other matters
reasonably requested by the requesting party. Within 15 days after written
request by Landlord or Trustee, Tenant shall deliver to the requesting party an
estoppel certificate signed by Tenant in form reasonably designated by Landlord
or Trustee that certifies as to (i) the rent payable under the Lease, (ii) the
nature of any defaults by Landlord alleged by Tenant and (iii) any other matters
reasonably requested by Landlord.
11. Miscellaneous. This Agreement may not be changed or terminated orally
-------------
and is binding upon, and inures to the benefit of, the parties hereto and each
of their respective successors and assigns. This Agreement shall be governed by
and construed in accordance with the laws of the State of Nevada. This
Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Consent and Landlord-Mortgagee Agreement to be effective as of the day and
year first above written.
THE TIBERTI COMPANY, a Nevada FIRSTAR BANK OF MINNESOTA, general
partnership N.A., as Trustee
By /s/ J. Xxxx Xxxxxxx By /s/ Xxxxx Xxxxxx, III
---------------------- --------------------------
Name: J. XXXX XXXXXXX Name: Xxxxx Xxxxxx, III
Title: Managing Partner Title: Vice President
COAST HOTELS AND CASINOS,
INC., a Nevada corporation
By /s/ Xxxxxxx Xxxxxxx
------------------------
XXXXXXX XXXXXXX, Chairman
of the Board and Chief Executive
Officer
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
This instrument was acknowledged before me on __________, 199_ by J. XXXX
XXXXXXX as Managing Partner of THE TIBERTI COMPANY, a Nevada general
partnership.
_______________________________
NOTARY PUBLIC
STATE OF ______________)
) ss:
COUNTY OF _____________)
This instrument was acknowledged before me on __________, 199_ by
__________ _________________ as _____________ of FIRSTAR BANK OF MINNESOTA, N.A.
as Trustee.
_______________________________
NOTARY PUBLIC
STATE OF _________)
) ss.:
COUNTY OF_________)
This instrument was acknowledged before me on ________________, 199_ by
XXXXXXX XXXXXXX as Chairman of the Board and Chief Executive Officer of COAST
HOTELS AND CASINOS, INC., a Nevada corporation.
_______________________________
NOTARY PUBLIC
EXHIBIT "A"
The East Half (El/2) of the Southwest Quarter (SW1/4) of Section 19, Township 21
South, Range 61 East, M.D.B. & M.
EXCEPTING THEREFROM the Southerly 50 feet as granted to the County of Xxxxx for
road, utilities and other public purposes by Document No. 444500, recorded July
7, 1964.
FURTHER EXCEPTING THEREFROM the West Thirty feet (30.00') of said land, together
with that certain spandrel area in the Southwest corner thereof, also being the
Northeast corner of the intersection of Tropicana Avenue and Cameron Street,
bounded as follows: on the South by the North line of the South Fifty feet
(50.00'); on the West by the East line of the West Thirty feet (30.00'); and on
the Northeast by the arc of a curve concave Northeasterly, having a radius of
Twenty-five feet (25.00') and being tangent to the North line of said South
Fifty feet (50.00') and to the East line of said West Thirty feet (30.00').
FURTHER EXCEPTING THEREFROM the East Forty feet (40.00') of said land, together
with that certain spandrel area in the Southeast corner thereof, also being the
Northwest corner of the intersection of Tropicana Avenue and Xxxxxxx Street,
bounded as follows: On the East. by the West line of the East Forty feet
(40.00'); on the South by the North line of the South Fifty feet (50.00'); and
on the Northwest by the arc of a curve concave Northwesterly, having a radius of
Twenty-five feet (25.00') and being tangent to the West line of said East Forty
feet (40.00'); and to the North line of said South Fifty feet (50.00').
FURTHER EXCEPTING THEREFROM the North Thirty feet (30.00'), together with that
spandrel area in the Northwest corner thereof, also being the Southeast corner
of the intersection of Cameron Street and Xxxxxx Avenue, bounded as follows: On
the North by the South line of the North Thirty feet (30.00'); on the West by
the East line of the West Thirty feet (30.00'); and on the Southeast by the arc
of a curve concave to the Southeast having a radius of Twenty feet (20.00') and
being tangent to the South line of said North Thirty feet (30.00') and to the
East line of said West Thirty feet (30.00'); also together with that other
spandrel area in the Northeast corner thereof being the Southwest corner of the
intersection of Xxxxxx Avenue and Xxxxxxx Street, bounded as follows: on the
North by the South line of the North Thirty feet (30.00'); on the East by the
East line of the Southwest Quarter (SW1/4) of Section 19; and on the Southwest
by the arc of a curve concave to the Southwest having a radius of Twenty-five
feet (25.001) and being tangent to the South line of said North Thirty feet
(30.00') and to the West line of the East Forty feet (40.00') and on the South
side by the prolongation of a line radial to the curve's point of tangency with
the West line of the East Forty feet (40.00'), as conveyed to Xxxxx County for
roads and other public purposes by Deed recorded October 21, 1976 as Document
No. 630256 and by Deed recorded May 23, 1978 as Document No. 850472 and by Deed
recorded February 27, 1986 in Book 860227 as Document No. 00275 and by Deed
recorded February 25, 1989 in Book 890225 as Document Nos. 00659 and 00660 and
by Deed recorded December 7, 1990 in Book 901207 as Document Nos. 00731 and
00732 of Official Records, Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM that portion conveyed to Xxxxx County by Grant,
Bargain, Sale Deed recorded November 21, 1996 as Document No. 1951 of Official
Records, Xxxxx County, Nevada. More particularly described as follows:
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Cameron
Street, thence North 89 degrees 53' 40" East, 370.62 feet to a point on the
centerline of Tropicana Avenue, thence North 00 degrees 06' 20" West, 50.00 feet
to a point on the existing Northern right-of-way line of Tropicana Avenue, also
being the TRUE POINT OF BEGINNING; thence North 00 degrees 06' 20" West, 14.00
feet to a point; thence North 89 degrees 53' 40" East, 120.76 feet to a point on
a curve, radius point of said curve is located South 00 degrees 06' 20" East,
266.00 feet from the previous point; thence on a curve to the right, subtending
a central angle of 13 degrees 10' 25", and having a radius of 266.00 feet along
said curve an arc length of 61.16 feet to a point of compound curvature of a
curve to the left. Thence along said curve to the left, subtending a central
angle of 13 degrees 10' 25", and having a radius of 266.00 feet an arc length of
61.16 feet to a point of curve located on the existing right-of-way of Tropicana
Avenue, thence south 89 degrees 53' 40" West, 242.00 feet to the TRUE POINT OF
BEGINNING.
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Cameron
Street, thence North 89 degrees 53' 40" East, 572.62 feet to a point on the
centerline of Tropicana Avenue, thence North 00 degrees 06 ' 20" West, 50.00
feet to a point on the existing Northern right-of-way of Tropicana Avenue, also
being the TRUE POINT OF BEGINNING; thence North 00 degrees 06' 20" West, 12.00
feet, thence North 89 degrees 53' 40" East, 108.50 feet to a point of curve,
radius point of said curve is located South 00 degrees 06' 20" East, 300.00
feet, from the previous point; thence on a curve to the right, subtending a
central angle of 11 degrees 29' 50", and having a radius of 300.00 feet along
said curve an arc length of 60.20 feet to a point of compound curvature of a
curve to the left; subtending a central angle of 12 degrees 28' 13", and having
a radius of 300.00 feet, along said curve an arc length of 65.29 feet to a point
of curve on the existing right-of-way of Tropicana Avenue; thence South 89
degrees 53' 40" West, 233.19 feet to the TRUE POINT OF BEGINNING.
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Cameron
Street, thence North 89 degrees 53' 40" East, 1087.48 feet to a point on the
centerline of Tropicana Avenue, thence North 00 degrees 06' 20" West, 50.00 feet
to the TRUE POINT OF BEGINNING, located on the existing Northern right-of-way
line of Tropicana Avenue, thence North 00 degrees 06' 20" West, 14.00 feet;
thence North 89 degrees 53' 40" East, 6.23 feet to a point of curve; radius
point of said curve is located South 00 degrees 06' 20" East, 266.00 feet from
the previous point; thence along a curve to the
right subtending a central angle of 13 degrees 10' 25", and having a radius of
266.00 feet, an arc length of 61.16 feet to a point of compound curvature of a
curve to the left; thence along said curve to the left, subtending a central
angle of 13 degrees 10' 25", and having a radius of 266.00 feet, an arc length
of 61.16 feet to a point on the existing Northern right-of-way of Tropicana
Avenue; thence South 89 degrees 53' 40" West, 127.47 feet to the TRUE POINT OF
BEGINNING.
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of Section 19, Township
21 South, Range 61 East, M.D.M., Xxxxx County, Nevada.
COMMENCING at the centerline intersection of Tropicana Avenue and Xxxxxxx
Street; thence North 00 degrees 39' 24" West, 75.63 feet to a point on the
centerline of Xxxxxxx Street; thence South 89 degrees 20' 36" West, 40.00 feet
to a point of curve; also being the TRUE POINT OF BEGINNING, on the existing
Western right-of-way line of Xxxxxxx Street, radius point of said curve is
located South 89 degrees 20' 36" West, 25.00 feet; from the previous point,
thence on a curve to the right, subtending a central angle of 90 degrees 33'
04", and having a radius of 25.00 feet, an arc length of 39.51 feet to a point
of curve on the existing Northern right-of-way of Tropicana Avenue; thence South
89 degrees 53' 40" West, 13.00 feet, continuing along the existing Northern
right-of-way line of Tropicana Avenue to a point of curve; radius point of said
curve is located North 00 degrees 06' 20" West, 25.00 feet from the previous
point; thence on a curve to the left subtending a central angle of 90 degrees
33' 04", and having a radius of 25.00 feet, an arc length of 39.51 feet to a
point of curve; thence North 00 degree 39' 24" West, 407.97 feet to a point of
curve; radius point of said curve is located North 89 degrees 20' 36" East,
205.00 feet from the previous point; thence along a curve to the right
subtending a central angle of 08 degrees 01' 57", and having a radius of 205.00
feet, an arc length of 28.74 feet to a point; thence North 07 degrees 22' 33"
East, 64.95 feet to a point of curve; radius point of said curve is located
North 82 degrees 37' 27" West, 195.00 feet from the previous point; thence along
a curve to the left, subtending a central angle of 08 degrees 01' 57", and
having a radius of 195.00 feet an arc length of 27.34 feet to a point of curve
on the existing Western right-of-way of Xxxxxxx Street; thence South 00 degrees
39' 24" East, 528.30 feet to the TRUE POINT OF BEGINNING.
EXHIBIT "B"
-----------
If Landlord shall elect to terminate the Lease by reason of any default of
Tenant, prior to doing so, Landlord agrees to give notice of such election to
Tenant and Trustee, specifying the default or defaults of Tenant resulting in
such termination and further agrees as follows:
(a) Trustee may nullify any notice of termination by curing such default
prior to the effective date of termination.
(b) With respect to a termination resulting only from a default or defaults
which Trustee reasonably can cure, Trustee may nullify any such notice of
termination by doing all of the following:
(i) Curing or causing to be cured, within forty-five (45) days of such
notice, any monetary defaults and any other defaults which are capable of
cure within 45 days; and
(ii) Within 45 days of such notice, commencing to cure or causing the
commencement of cure of any other default and thereafter diligently
pursuing such cure to completion; and
(iii) During any cure period, paying or causing to be paid any rent and
other monetary obligations of Tenant under the Lease of which Trustee has
knowledge, as the same fall due.
(c) With respect to a termination resulting, in whole or in part, from a
default or defaults of Tenant which Trustee cannot reasonably cure, Trustee may
postpone and extend the specified date for such termination as fixed by Landlord
in its notice of termination, for a period of not more than ninety (90) days;
provided that Trustee shall agree with Landlord (by giving a notice to that
effect to Landlord) before the effective date of termination, to accomplish the
following within the times hereinafter provided and shall, in fact, accomplish
the following in a timely manner:
(i) cure or cause to be cured within forty-five (45) days of such
notice any then-existing monetary defaults of which Trustee has knowledge;
(ii) pay or cause to be paid during such 90-day period (as it may be
extended as provided below) any rent and other monetary obligations of
Tenant under the Lease of which Trustee has knowledge, as the same fall
due;
(iii) promptly cure or cause to be cured any other defaults that
Trustee can cure and of which Trustee has knowledge;
(iv) take steps to acquire or sell Tenant's interest in the Lease by
foreclosure of the Deed of Trust or otherwise; provided that the time
period for commencement of such steps shall be extended one day for each
day that Trustee is under any statutory or judicial restraint precluding
the taking of such steps; and
(v) prosecute to completion with reasonable diligence the steps
commenced pursuant to the preceding clause.
If, at the end of such 90-day period (as it may be extended), Trustee shall be
actively engaged in steps to acquire or sell Tenant's interest in the Lease and
is in compliance with the other conditions met forth in clauses (i) through (v)
above, including the payment of all rent and other monetary obligations of
Tenant as they fall due, the time for completion of such steps shall be further
extended upon the name conditions for such period as shall be reasonably
necessary to complete such steps with reasonable diligence so long as, but only
so long an Trustee continues to timely pay or cause to be paid all rent and
other monetary obligations of Tenant as they fall due. If Tenant's interest is
acquired or sold by foreclosure of the Deed of Trust or otherwise during such
90-day period (as it may be extended), the intended termination of the Lease by
Landlord under the subject notice will be automatically nullified, and the Lease
will continue an if the notice of termination had never been given so long as
Trustee has complied with the conditions met forth In clauses (i) through (v)
above and has commenced and in diligently pursuing the cure of all defaults
which Trustee can reasonably cure.
(d) if the Lease, without the consent of Trustee, is terminated for any
reason before the end of its stated term, as such stated term may be extended,
then Landlord shall, upon written request from Trustee made within sixty (60)
days after such termination, enter into a new lease of the Premises with
Trustee. The new lease shall be on the same terms and conditions as the Lease
(including without limitation any rights or options to extend the term of the
Lease or acquire the Premises) and shall have the same priority as the Lease.
Landlord': obligation to enter into such a new lease shall be conditioned upon
the following: (i) Trustee shall have cured all monetary defaults and commenced,
and diligently prosecuted, the cure of all reasonably curable nonmonetary
defaults and (ii) Trustee shall reimburse Landlord for all reasonable costs and
expenses incurred in entering into such new lease.
EXHIBIT 3
(Landlord-Mortgagee Agreement Executed by Nevada Power Company
Regarding Parking Lot Lease)
CONSENT
-------
and
LANDLORD-MORTGAGEE AGREEMENT
----------------------------
THIS CONSENT AND LANDLORD-MORTGAGEE AGREEMENT ("Agreement") is dated and
made effective as of November 21, 1997 and is entered into by and between
FIRSTAR BANK OF MINNESOTA, N.A. (the "Trustee"), NEVADA POWER COMPANY, a Nevada
Corporation ("Landlord") and COAST HOTELS AND CASINOS, INC., a Nevada
corporation ("Tenant").
RECITALS
--------
A. Property and Lease. Landlord is the owner of real property in Xxxxx
------------------
County, Nevada, described in Exhibit "A" attached hereto and by this reference
incorporated herein (the "Premises"). Landlord and Barbary Coast Hotel and
Casino, a Nevada general partnership ("Lessee") were parties to a Lease dated
November 1, 1982 relating to the Premises (the "Lease").
B. Reorganization. Lessee and Gold Coast Hotel and Casino, a Nevada
--------------
limited partnership, have reorganized in a transaction (the Reorganization) in
which (i) the assets of Lessee became the assets of Coast Resorts,.Inc., a
Nevada corporation ("Resorts") and (ii) Resorts transferred and assigned those
assets to Tenant in capitalization of Tenant.
C. Notes. It is anticipated that Trustee will be the trustee under an
-----
Indenture (the "Indenture"), by and among Tenant as issuer, Resorts as
guarantor, Coast West, Inc., a Nevada corporation, as guarantor, and Trustee,
pursuant to which Tenant will issue 10 7/8% First Mortgage Notes due 2001 (the
"Notes") in a total principal amount of SIXTEEN MILLION EIGHT HUNDRED THOUSAND
DOLLARS ($16,800,000.00).
D. Obligations. In accordance with the anticipated requirements of the
-----------
Indenture, and as security for the Notes and other obligations of Tenant under
the Indenture (the "Obligations"), Tenant intends to execute as trustor and
deliver to Trustee, a Leasehold Deed of Trust, Security Agreement and Assignment
of Rents and teases (the "Deed of Trust") encumbering Tenant's leasehold
interest in the Premises and the Lease. As additional security for the
obligations, Tenant intends to grant to Trustee a security interest in Tenant's
inventory, equipment and other personal property now or hereafter located on the
Premises (the "Personal Property").
E. Reliance. Landlord acknowledges and understands that Tenant, Resorts
--------
and Trustee, on behalf of the holders of Notes, will rely upon the provisions
set forth in this Agreement.
CONSENT AND AGREEMENT
---------------------
In consideration of the foregoing recitals and other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Consent to Deed of Trust. Landlord hereby consents to Tenant's grant
------------------------
to Trustee of a lien on Tenant's leasehold interest in the ,Premises pursuant to
the terms of the Deed of Trust. Landlord agrees that the provisions of
Paragraphs 3 through 10 below shall take effect upon the, recording of the Deed
of Trust. Those provisions shall be for the benefit of. Trustee, any successor
Trustee and the holders of the Notes.
2. Status of Lease. Landlord certifies that to the best of Landlord's
---------------
knowledge, (i) the Lease is in full force and effect, (ii) no amendment has been
made to the Lease, (iii) no default exists xxxxxx the Lease and (iv) rent and
other charges have been paid to the extent payable and have not been prepaid
more than one year in advance.
3. Personal Property. The Personal Property shall not be deemed to be a
-----------------
fixture or part of the underlying real estate but shall at all times be
considered personal property. Landlord waives and relinquishes any landlord's
lien, all rights of levy or constraint, security interest or other interest that
Landlord may now or hereafter have in any of the Personal Property, whether for
rent or otherwise; provided, however, that nothing in the foregoing shall
constitute a waiver or release by Landlord of any right or interest of Landlord
in the real property being leased by Landlord under the Lease or the site
improvements located on that property. Landlord agrees that Trustee, at its
option, may enter the Premises for the purpose of repossessing, removing,
selling or otherwise dealing with the Personal Property, and such license shall
be irrevocable and shall continue without charge for a period of ninety (90)
days after the receipt by Trustee of written notice from Landlord directing
removal of the Personal Property.
4. Notice and Cure Rights. No notice from Landlord shall be effective
----------------------
unless it is also given to Trustee. Any notice of default shall state the
nature of the default and shall specify the amounts of rent or other payments
claimed to be in default. In the event of a default by Tenant under the Lease,
Landlord shall accept any curative acts undertaken by or at the instigation of
Trustee as if undertaken by Tenant. Trustee shall be given notice of any
arbitration or other proceeding or dispute between Landlord and Tenant and shall
have the right to intervene therein and be made a party thereto. Further,
Trustee shall receive notice, and a copy, of any award or decision made in such
arbitration or other proceeding. If Landlord shall elect to terminate the Lease
by reason of any default of Tenant, Trustee shall have the rights set forth in
Exhibit "B" attached hereto and by this reference incorporated herein.
5. Assignment. Tenant's interest in the Lease may be assigned,
----------
transferred or conveyed pursuant to judicial or non-judicial foreclosure or a
conveyance in lieu of foreclosure (a "Foreclosure Transfer"). If Trustee is the
transferee under a Foreclosure Transfer, Trustee may assign the Lease without
Landlord's prior written consent, but if the Lease is so assigned by Trustee,
and Landlord's prior written consent is either not sought by Trustee or is
sought by
Trustee but reasonably withheld by Landlord, Trustee shall be and remain jointly
and severally liable with the assignee for any and all liability arising or
accruing under the Lease after the date of such assignment, including the
obligation to pay rent under the Lease. If Trustee is the transferee under a
Foreclosure Transfer and Trustee obtains Landlord's prior written consent to
assignment of the Lease as provided in the Lease, or if Trustee seeks Landlord's
prior written consent and Landlord unreasonably withholds that consent, then
upon such assignment, Trustee shall thereupon be released from all prospective
liability as tenant under the Lease from and after the date of such assignment
so long as (but only so long as) the assignee executes, acknowledges and
delivers to Landlord an instrument in writing by which assignee expressly
assumes all of the obligations, terms and conditions of the Lease.
Notwithstanding anything in the foregoing to the contrary, a Foreclosure
Transfer shall not operate to release Tenant from any liability of Tenant under
the Lease, and a Foreclosure Transfer shall not operate to release Trustee from
any liability as tenant under the Lease for any period during which Trustee has
the right to possession of the Premises.
6. INTENTIONALLY OMITTED
---------------------
7. Amendment to Lease and Mortgage by Landlord. The cancellation,
-------------------------------------------
surrender or amendment of the Lease by Tenant shall not be effective without the
prior written consent of Trustee.
8. Insurance and Condemnation Proceeds. Notwithstanding any provisions of
-----------------------------------
the Lease to the contrary, any insurance or condemnation proceeds payable to
Tenant or the Trustee as a result of damage, destruction or condemnation of any
portion of the property or improvements thereto shall be paid to the respective
parties in order of priority, for handling in accordance with the terms of the
Deed of Trust, up to the amounts of the obligations secured by the Deed of
Trust. Any remaining proceeds shall be distributed as provided in the Lease.
Landlord and Tenant shall not enter into any settlement or adjustment relating
to such proceeds without the prior written consent of the Trustee. Nothing in
the foregoing is intended to diminish or otherwise affect the amount of
condemnation or insurance proceeds payable to Landlord pursuant to the Lease or
to diminish or otherwise affect the amount of condemnation or insurance proceeds
that would be payable to or for the benefit of Tenant under the Lease absent the
Deed of Trust.
9. No Merger. If Tenant acquires the fee estate in the Premises, the
---------
Deed of Trust shall not merge out of existence but instead shall be, become and
continue as an encumbrance of the entire interests of Tenant in the Premises.
10. Estoppel Certificates. Within fifteen (15) days after written request
---------------------
by Tenant or Trustee, Landlord shall deliver to the requesting party (and any
other party identified by the requesting party) an estoppel certificate signed
by Landlord in form reasonably designated by the requesting party that certifies
as to (i) the rent payable under the Lease, (ii) the term of the Lease and the
rights of Tenant, if any, to extend the term of the Lease, (iii) the nature of
any defaults by
Tenant alleged by Landlord and (iv) any other matters reasonably requested by
the requesting party. Within 15 days after written request by Landlord or
Trustee, Tenant shall deliver to the requesting party an estoppel certificate
signed by Tenant in form reasonably designated by Landlord or Trustee that
certifies as to (i) the rent payable under the Lease, (ii) the nature of any
defaults by Landlord alleged by Tenant and (iii) any other matters reasonably
requested by Landlord.
11. Miscellaneous. This Agreement may not be changed or terminated orally
-------------
and is binding upon, and inures to the benefit of, the parties hereto and each
of their respective successors and assigns. This Agreement shall be governed by
and construed in accordance with the laws of the State of Nevada. This
Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Consent and Landlord-Mortgagee Agreement to be effective as of the day and
year first above written.
NEVADA POWER COMPANY, FIRSTAR BANK OF MINNESOTA, NATIONAL
a Nevada corporation N.A.,as Trustee.
By /s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxx Xxxxxx, III
--------------------------- ----------------------------
Name: Xxxxxxx x. Xxxxxxxx Name: Xxxxx Xxxxxx, III
Title: Vice President Title: Vice President
COAST HOTELS AND CASINOS,
INC., a Nevada corporation
By /s/ Xxxxxxx Xxxxxxx
----------------------------
XXXXXXX XXXXXXX,
Chairman of the Board and
Chief Executive Officer
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
This instrument was acknowledged before me on __________, 199_ by
__________ __________________ as __________________ of NEVADA POWER COMPANY, a
corporation.
_______________________________
NOTARY PUBLIC
STATE OF ______________)
) ss:
COUNTY OF ____________)
This instrument was acknowledged before me on __________, 199_ by
__________ _________________ as _____________ of FIRSTAR BANK OF MINNESOTA, N.A.
as Trustee.
_______________________________
NOTARY PUBLIC
STATE OF NEVADA )
) ss.:
COUNTY OF ______)
This instrument was acknowledged before me on ________________, 199_ by
XXXXXXX XXXXXXX as Chairman of the Board and Chief Executive Officer of COAST
HOTELS AND CASINOS, INC., a Nevada corporation.
_______________________________
NOTARY PUBLIC
EXHIBIT "A"
A strip of land Two Hundred (200) feet wide along the North line of the
Northwest Quarter (NW1/4) of Section Twenty-one (21), Township Twenty-one (21)
South of Range Sixty-one (61) East of the M.D.B. & M., particularly described as
beginning at the Northwest corner of Section Twenty-one (21); thence East along
the North line of said Section to the Northeast corner of the Northwest Quarter
(NW114) of said Section; thence South at right angles Two Hundred (200) feet;
thence West parallel with the North line of said Section to the West line
thereof; thence North Two Hundred (200) feet to the Place of Beginning.
EXCEPTING THEREFROM that portion of the Northwest Quarter (NWI/4) of the
Northwest Quarter (NW1/4) of Section 21, Township 21 South, Range 61 East,
M.D.M., described as follows:
COMMENCING at the Northwest (NW) corner of said Section 21, South 88
degrees 05' 38" East along the North line of said Section 21, a distance of
155.55 feet to a point on the East line of U.S. Highway No. 91, as conveyed by
the Southern Nevada Power Company to the State of Nevada by Deed recorded
January 23, 1943 as Document No. 159436, Xxxxx County, Nevada Records, the true
point of beginning; thence South 00" 02' East along the said East line, a
distance of 200.11 feet to a point; thence South 88 degrees 05' 38" East
parallel to the said North line, a distance of 500.00 feet to a point; thence
North 00 degrees 02' West parallel to the said East line, a distance of 200.11
feet to a point on the said North line; thence North 88 degrees 05' 38" West
along the said North line, a distance of 500.00 feet to the TRUE POINT OF
BEGINNING.
Also, a portion of the North 200 feet of the Northwest Quarter (NW1/4) of
the Northwest Quarter (NW1/4) of Section 21, Township 21 South, Range 61 East,
M.D.M., and being a portion of that certain right-of-way (150 feet wide) granted
to the State of Nevada by Southern Nevada Power Co. on January 23, 1943 and
recorded as Document No. 159436 in Book 43 of Deeds, Pages 191 and 192, Xxxxx
County, Nevada Records. The parcel of land to be conveyed is that portion of
the above referred to right-of-way described as follows, to-wit:
Being all of the aforementioned right-of-way lying right or Easterly of a
line located 50.00 feet right or Easterly of and parallel to the "0" line
centerline of U.S. Highway 91 (S.R.6) as staked and constructed in 1951 and
lying right or Easterly of Highway Engineer's Station "0" 934, approximately to
Highway Engineer's Station "0" 936, approximately, and being that parcel
remised, released and quitclaimed unto the Southern Nevada Power Co. by the
State of Nevada, by Quitclaim Deed dated December 20, 1957 and recorded January
10, 1958 as Document No. 122228, official Records, Book No. 149, Xxxxx County,
Nevada.
FURTHER EXCEPTING THEREFROM the interest in and to the South 40 feet of the
hereinabove described parcel of land as conveyed to the County of Xxxxx for road
purposes by Deed recorded September 9, 1953 as Document No. 413334, Official
Records of Xxxxx County, Nevada.
FURTHER EXCEPTING THEREFROM the Northerly Ten (10) feet of the Southerly
Fifty (50) feet, together with that certain radius in the Southwest corner
thereof bounded as follows: on the West side by the East line of U.S. Highway
91, on the South side by the North line of the South 50.00 feet and on the
Northeast side by the arc of a circle concave to the Northeast having a radius
of 25.00 feet that is tangent to the East line of U.S. Highway 91 and tangent to
the North line of said South 50.00 feet as conveyed to the County of Xxxxx by
Deed recorded November 6, 1985 in Book 2213 as Document No. 2172026.
FURTHER EXCEPTING THEREFROM that portion of land as conveyed to the state
of Nevada by Final Order of Condemnation recorded May 30, 1995 in Book 950530 as
Document
No. 00882 of Official Records, Xxxxx County, Nevada.
EXHIBIT "B"
-----------
If Landlord shall elect to terminate the Lease by reason of any default of
Tenant, prior to doing so, Landlord agrees to give notice of such election to
Tenant and Trustee, specifying the default or defaults of Tenant resulting in
such termination and further agrees as follows:
(a) Trustee may nullify any notice of termination by curing such
default prior to the effective date of termination.
(b) With respect to a termination resulting only from a default or
defaults which Trustee reasonably can cure, Trustee may nullify any such
notice of termination by doing all of the following:
(i) Curing or causing to be cured, within forty-five (45) days
of such notice, any monetary defaults and any other defaults which are
capable of cure within 45 days; and
(ii) Within 45 days of such notice, commencing to cure or
causing the commencement of cure of any other default and thereafter
diligently pursuing such cure to completion; and
(iii) During any cure period, paying or causing to be paid any
rent and other monetary obligations of Tenant under the Lease of which
Trustee has knowledge, as the same fall due.
(c) With respect to a termination resulting, in whole or in part,
from a default or defaults of Tenant which Trustee cannot reasonably cure,
Trustee may postpone and extend the specified date for such termination as
fixed by Landlord in its notice of termination, for a period of not more
than ninety (90) days; provided that Trustee shall agree with Landlord (by
giving a notice to that effect to Landlord) before the effective date of
termination, to accomplish the following within the times hereinafter
provided and shall, in fact, accomplish the following in a timely manner:
(i) cure or cause to be cured within forty-five (45) days of
such notice any then-existing monetary defaults of which Trustee has
knowledge;
(ii) pay or cause to be paid during such 90-day period (as it
may be extended as provided below) any rent and other monetary
obligations of Tenant under the Lease of which Trustee has knowledge,
as the same fall due;
(iii) promptly cure or cause to be cured any other defaults
that Trustee can cure and of which Trustee has knowledge;
(iv) take steps to acquire or sell Tenant's interest in the
Lease by
foreclosure of the Deed of Trust or otherwise; provided that the time
period for commencement of such steps shall be extended one day for
each day that Trustee is under any statutory or judicial restraint
precluding the taking of such steps; and
(v) prosecute to completion with reasonable diligence the steps
commenced pursuant to the preceding clause.
If, at the end of such 90-day period (as it may be extended),
Trustee shall be actively engaged in steps to acquire or sell Tenant's
interest in the Lease and is in compliance with the other conditions
set forth in clauses (i) through (v) above, including the payment of
all rent and other monetary obligations of Tenant as they fall due,
the time for completion of such steps shall be further extended upon
the same conditions for such period as shall be reasonably necessary
to complete such steps with reasonable diligence so long as, but only
so long as Trustee continues to timely pay or cause to be paid all
rent and other monetary obligations of Tenant as they fall due. If
Tenant's interest is acquired or sold by foreclosure, of the Deed of
Trust or otherwise during such 90-day period (as it may be extended),
the intended termination of the Lease by Landlord under the subject
notice will be automatically nullified, and the Lease will continue as
if the notice of termination had never been given so long an Trustee
has complied with the conditions set forth in clauses (i) through (v)
above and has commenced and is diligently pursuing the cure of all
defaults which Trustee can reasonably cure.
(d) If the Lease, without the consent of Trustee, is terminated for
any reason before the end of its stated term, as such stated term may be
extended, then Landlord shall, upon written request from Trustee made
within sixty (60) days after such termination, enter into a now lease of
the Premises with Trustee. The new lease shall be on the same terms and
conditions as the Lease (including without limitation any rights or options
to extend the term of the Lease or acquire the Premises) and shall have the
same priority as the Lease. Landlord's obligation to enter into such a now
lease shall be conditioned upon the following: (i) Trustee shall have cured
all monetary defaults and commenced, and diligently prosecuted, the cure of
all reasonably curable nonmonetary defaults and (ii) Trustee shall
reimburse Landlord for all reasonable costs and expenses incurred in
entering into such new lease.
