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EXHIBIT 10.11
AFTER RECORDING, MAIL TO:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
(WASHOE COUNTY)
FITZGERALDS RENO, INC,
a Nevada corporation,
as Trustor
LAWYERS TITLE INSURANCE CORPORATION,
a Virginia corporation,
as Trustee
FOOTHILL CAPITAL CORPORATION,
a California corporation,
as Beneficiary
Dated as of October 29, 1998
* * * * *
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TABLE OF CONTENTS
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GRANTING CLAUSE ONE
[Land]...............................................................................2
GRANTING CLAUSE TWO
[Improvements].......................................................................3
GRANTING CLAUSE THREE
[Rents, etc.]........................................................................3
GRANTING CLAUSE FOUR
[Leases, Including Deposits and Advance Rentals].....................................3
GRANTING CLAUSE FIVE
[Options to Purchase, etc.]..........................................................4
GRANTING CLAUSE SIX
[Personalty].........................................................................4
GRANTING CLAUSE SEVEN
[Condemnation Awards, etc.]..........................................................4
GRANTING CLAUSE EIGHT
[Insurance Proceeds].................................................................5
GRANTING CLAUSE NINE
[Claims for Damages, etc.]...........................................................5
GRANTING CLAUSE TEN
[Deposits, Advance Payments and Refunds of Insurance, Utilities, etc.]...............5
GRANTING CLAUSE ELEVEN
[Water Rights, etc.].................................................................5
GRANTING CLAUSE TWELVE
[Minerals, etc.].....................................................................5
GRANTING CLAUSE THIRTEEN
[Accessions, etc.]...................................................................5
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PAGE
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ARTICLE 1.
DEFINITIONS AND RELATED MATTERS......................................................7
Section 1.1 Certain Defined Terms........................................7
Section 1.2 Related Matters.............................................13
1.2.1 Terms Used in the UCC..........................13
1.2.2 Construction...................................13
1.2.3 Determinations.................................14
1.2.4 Governing Law..................................14
1.2.5 Headings.......................................14
1.2.6 Severability...................................14
1.2.7 Exhibits and Schedules.........................15
ARTICLE 2.
[RESERVED]..........................................................................15
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES......................................................15
Section 3.1 Corporate Existence.........................................15
Section 3.2 Authorization; Approvals....................................15
Section 3.3 Enforceability..............................................15
Section 3.4 Validity and Perfection of Security Interests...............15
Section 3.5 Title to and Right to Use Assets............................16
Section 3.6 Non-Contravention...........................................16
Section 3.7 Contracts...................................................17
Section 3.8 Leases......................................................17
Section 3.9 No Other Property...........................................17
Section 3.10 Compliance with Laws........................................17
Section 3.11 Property Use; Mechanics Liens...............................17
Section 3.12 Condemnation................................................18
Section 3.13 Litigation..................................................18
Section 3.14 Construction of Improvements................................18
ARTICLE 4.
AFFIRMATIVE COVENANTS...............................................................18
Section 4.1 Secured Obligations of Trustor..............................18
Section 4.2 Compliance with Law: Maintenance of Approvals...............18
Section 4.3 Other Reports...............................................19
Section 4.4 Insurance...................................................19
Section 4.5 Waste and Repair............................................19
Section 4.6 Impositions; Impounds; Taxes, Capital Costs.................19
4.6.1 Impositions Affecting the Property.............19
4.6.2 Impounds; Impound Account......................19
Section 4.7 Further Assurances..........................................20
Section 4.8 Reimbursement: Waiver of Offsets............................20
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PAGE
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Section 4.9 Litigation..................................................21
Section 4.10 Certain Reports.............................................21
Section 4.11 Tax Receipts................................................21
Section 4.12 FIRPTA Affidavit............................................21
Section 4.13 Preservation of Contractual Rights..........................22
Section 4.14 Tax Service Contract........................................22
Section 4.15 Liens.......................................................22
Section 4.16 Inspection..................................................23
ARTICLE 5.
LEASEHOLD PROVISIONS................................................................23
Section 5.1 Deed of Trust Subject to Ground Lease.......................23
Section 5.2 Certain Covenants...........................................23
ARTICLE 6.
NEGATIVE COVENANTS..................................................................27
Section 6.1 Restrictive Uses............................................27
Section 6.2 No Cooperative or Condominium...............................27
ARTICLE 7.
CASUALTIES AND CONDEMNATION.........................................................27
Section 7.1 Casualties..................................................27
Section 7.2 Condemnation................................................28
ARTICLE 8.
REMEDIES OF BENEFICIARY.............................................................28
Section 8.1 Event of Default............................................28
Section 8.2 Remedies....................................................29
Section 8.3 Power of Sale...............................................31
Section 8.4 Proof of Default............................................32
Section 8.5 Protection of Security......................................32
Section 8.6 Receiver....................................................33
Section 8.7 Curing of Defaults..........................................33
Section 8.8 Remedies Cumulative.........................................34
Section 8.9 Marshaling..................................................34
Section 8.10 Adoption of Covenants.......................................34
ARTICLE 9.
SECURITY AGREEMENT AND FIXTURE FILING...............................................34
Section 9.1 Grant of Security Interest..................................34
Section 9.2 Remedies, etc...............................................39
Section 9.3 Expenses....................................................39
Section 9.4 Fixture Filing..............................................39
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PAGE
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ARTICLE 10.
ASSIGNMENT OF RENTS.................................................................40
Section 10.1 Assignment of Rents.........................................40
Section 10.2 Collection of Rents.........................................41
ARTICLE 11.
ENVIRONMENTAL MATTERS...............................................................41
Section 11.1 Representations and Warranties..............................41
Section 11.2 Environmental Covenants.....................................42
ARTICLE 12.
MISCELLANEOUS.......................................................................45
Section 12.1 Beneficiary's Expenses, including Attorney's Fees...........45
Section 12.2 Indemnity...................................................45
Section 12.3 Waivers; Modifications in Writing...........................45
Section 12.4 Cumulative Remedies; Failure or Delay.......................46
12.4.1 Successors and Assigns.........................46
Section 12.5 Independence of Covenants...................................46
Section 12.6 Change of Law...............................................46
Section 12.7 No Waiver...................................................47
Section 12.8 Notices.....................................................47
Section 12.9 References to Foreclosure...................................47
Section 12.10 Joinder of Foreclosure......................................47
Section 12.11 Rights and Secured Obligations of Beneficiary and
Trustee.....................................................48
Section 12.12 Copies......................................................48
Section 12.13 Subordination...............................................48
Section 12.14 Personally Security Instruments.............................49
Section 12.15 Suits to Protect Property...................................49
Section 12.16 Trustor Waiver of Rights....................................49
Section 12.17 Charges for Statements......................................50
Section 12.18 Complete Agreement..........................................50
Section 12.19 Payments Set Aside..........................................50
Section 12.20 Substitution................................................50
Section 12.21 Choice of Forum.............................................50
Section 12.22 Regulatory Matters..........................................51
Section 12.23 Guarantor Waivers...........................................52
Section 12.24 Waiver of Trial by Jury.....................................53
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DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
(WASHOE COUNTY)
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING WITH
ASSIGNMENT OF RENTS (this "Deed of Trust") is made as of the 29th day of
October, 1998, by Fitzgeralds Reno, Inc., a Nevada corporation,("Trustor"),
whose principal place of business is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxx, 00000, in favor of Lawyers Title Insurance Corporation, a Virginia
corporation, as the trustee ("Trustee"), for the benefit of Foothill Capital
Corporation, a California corporation, as beneficiary ("Beneficiary"), whose
principal place of business is located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
THIS INSTRUMENT SECURES FUTURE ADVANCES, AS DEFINED IN NRS 106.320, AND
IS TO BE GOVERNED BY NRS 106.300 TO 106.400, INCLUSIVE. THE MAXIMUM AMOUNT OF
PRINCIPAL TO BE SECURED HEREBY IS $15,000,000.00.
R E C I T A L S:
A. Pursuant to that certain Loan and Security Agreement dated as of
October 29, 1998 (as supplemented and otherwise amended from time to time, the
"Loan Agreement"), by and among Fitzgeralds Gaming Corporation ("Fitzgeralds"),
as the borrower, and Beneficiary, as the lender, pursuant to which Beneficiary
has agreed to make a loan to Fitzgeralds on the terms and conditions set forth
therein. Unless the context other requires, all capitalized terms used and not
otherwise defined herein shall have the meanings ascribed thereto in the Loan
Agreement.
B. Pursuant to the Guaranty, the Guarantors (including Trustor) have
guaranteed the Guarantied Obligations.
C. Pursuant to the Loan Agreement, the Guarantied Obligations are
required to be secured by, among other things, this Deed of Trust.
D. The parties acknowledge that certain provisions of this Deed of Trust
may be subject to the laws, rules and regulations ("Applicable Gaming Laws") of
the gaming authorities (collectively, "Gaming Authority") of the State of Nevada
and of other governmental jurisdictions, including, but not limited to, the
Nevada State Gaming Control Board, the Nevada Gaming Commission and the City of
Reno and any other local agencies which regulate the gaming activities of
Trustor.
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WITNESSETH:
In consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Trustor does hereby irrevocably grant, bargain, sell, transfer,
convey and assign to Trustee, its successors and assigns, in trust, with power
of sale, for the benefit and security of Beneficiary, the following (but
excluding in each of every case all Excluded Assets as defined below), whether
now owned or hereafter acquired:
GRANTING CLAUSE ONE
[LAND]
All of Trustor's right, title and interest in the real property located
in the County of Washoe, State of Nevada, described in EXHIBIT "A" attached
hereto and by this reference incorporated herein (the "Owned Land"), together
with all and singular the tenements, hereditament, 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, benefiting, relating or appertaining to the Owned Land,
the airspace over the Owned Land, the "Improvements" (as hereinafter defined) to
the Owned Land, or relating or appertaining to any number of them, or which
hereinafter shall in any way belong, relate or be appurtenant thereto.
To the fullest extent allowed by Applicable Law and the Ground Lease (as
defined below), all of Trustor's right, title and interest in the subleasehold
estate (herein "leasehold estate") created by those certain sublease agreements
described in EXHIBIT "B-1" attached hereto and by this reference incorporated
herein ("Ground Lease"), wherein Trustor is the owner of the sublessee's
interest thereunder ("lessee's interest"), and that certain party referenced on
said Exhibit is the sublessor ("Lessor"), as the same may be amended, restated,
renewed or extended from time to time, in that certain real property located in
the County of Washoe, State of Nevada, described in EXHIBIT "B-2" (the "Leased
Land"), together with all and singular the 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, benefiting, relating or appertaining to the Leased Land,
the air space over the Leased Land, the "Improvements" (as hereinafter defined)
to the Leased Land, or relating or appertaining to any number of them, or which
hereinafter shall in any way belong, relate or be appurtenant thereto). The
Owned Land and the Leased Land are herein collectively referred to as the
"Land".
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GRANTING CLAUSE TWO
[IMPROVEMENTS]
TOGETHER WITH, any and all structures, buildings, facilities and
improvements of every nature whatsoever now or hereafter erected on the Land,
including, but not limited to, the "Fixtures" (as hereinafter defined)
(collectively, the "Improvements") (the Land and Improvements are referred to
collectively as the "Property").
For purposes of this Deed of Trust, Fixtures shall be deemed to include,
to the full extent allowed by law, fixtures and all other equipment and
machinery now or at any time hereafter owned by Trustor and located or included
in or on or appurtenant to the Property and used in connection therewith and
which are or become so related to the real property encumbered hereby that an
interest arises in them under real estate law which may include, but is not
limited to: all docks, piers, barges, vessels, machinery, equipment (including,
without limitation, pipes, furnaces, conveyors, drums, fire sprinklers and alarm
systems, and air conditioning, heating, refrigerating, electronic monitoring,
stoves, ovens, ranges, dishwashers, disposals, food storage, food processing
(including restaurant fixtures), trash and garbage removal and maintenance
equipment), office equipment, all built-in tables, chairs, mantels, screens,
plumbing, bathtubs, sinks, basins, faucets, laundry equipment, planters, desks,
sofas, shelves, lockers and cabinets, laundry equipment, all safes, furnishings,
appliances (including, without limitation, food warming and holding equipment,
iceboxes, refrigerators, fans, heaters, water heaters and incinerators), rugs,
carpets and other floor coverings, draperies and drapery rods and brackets,
awnings, window shades, venetian or other blinds, curtains, lamps, chandeliers
and other lighting fixtures.
GRANTING CLAUSE THREE
[RENTS, ETC.]
TOGETHER WITH all rents, income, security or similar deposits, including
without limitation, receipts, issues, royalties, earnings, products or proceeds,
profits, maintenance, license and concession fees and other revenues to which
Trustor may now or hereafter be entitled, including, without limitation, all
rights to payment for hotel room occupancy by hotel guests, which includes any
payment or monies received or to be received in whole or in part, whether actual
or deemed to be, for the sale of services or products in connection therewith
and/or in connection with such occupancy, advance registration fees by hotel
guests, tour or junket proceeds and deposits for conventions and/or party
reservations (collectively, the "Rents"), subject to the revocable license
hereinafter given to Trustor to collect and apply such Rents.
GRANTING CLAUSE FOUR
[LEASES, INCLUDING DEPOSITS AND ADVANCE RENTALS]
TOGETHER WITH (a) all estate, right, title and interest of Trustor in,
to and under any and all leases, subleases, lettings, licenses, concessions,
operating agreements, management agreement franchise agreements and all other
agreements affecting or covering the Property or
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any portion thereof now or hereafter existing or entered into, together with all
amendments, extensions and renewals of any of the foregoing, (b) all right,
title, claim, estate and interest of Trustor thereunder, including, without
limitation, all claims of the lessor thereunder, letters of credit, guarantees
or security deposits, advance rentals, and any and all deposits or payments of
similar nature and (c) the right to enforce against any tenants thereunder and
otherwise any and all remedies under any of the foregoing, 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 thereof, to terminate,
modify, or amend any such agreement; to obtain possession of, use, or occupy,
any of the real or personal property subject to any such agreement; and to
enforce or exercise, whether at law or in equity or by any other means, all
provisions of any such agreement and all obligations of the tenants thereunder
based upon (i) any breach by such tenant thereunder (including any claim that
Trustor may have by reason of a termination, rejection, or disaffirmance of such
agreement pursuant to any Bankruptcy Law), and (ii) the use and occupancy of the
premises demised, whether or not pursuant to the applicable agreement (including
any claim for use and occupancy arising under landlord-tenant law of the State
of Nevada or any Bankruptcy Law).
GRANTING CLAUSE FIVE
[OPTIONS TO PURCHASE, ETC.]
TOGETHER WITH all right, title and interest of Trustor in and to all
options and other rights to purchase or lease the Property or any portion
thereof or interest therein, if any, and any greater estate in the Property
owned or hereafter acquired by Trustor.
GRANTING CLAUSE SIX
[PERSONALTY]
TOGETHER WITH all right, title and interest of Trustor in and to all
Tangible Property and Intangible Property (except, with respect to Casino
Licenses, as prohibited by Applicable Gaming Laws) now or at any time hereafter
located on or appurtenant to the Property and used or useful in connection with
the ownership, management or operation of the Property, including, without
limitation, the Personalty.
GRANTING CLAUSE SEVEN
[CONDEMNATION AWARDS, ETC.]
TOGETHER WITH all the estate, interest right title, other claim or
demand, which Trustor now has or may hereafter acquire in any and all awards,
payments or other consideration made for the taking by eminent domain, or by any
proceeding or purchase in lieu thereof, of the whole or any part of the
Property, including, without limitation, any awards, payments or other
consideration resulting from a change of grade of streets and for severance
damages.
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GRANTING CLAUSE EIGHT
[INSURANCE PROCEEDS]
TOGETHER WITH, all the estate, interest, right, title and other claim or
demand which Trustor now has or may hereafter acquire with respect to the
proceeds of insurance in effect with respect to all or any part of the Property,
together with all interest thereon and the right to collect and receive the
same.
GRANTING CLAUSE NINE
[CLAIMS FOR DAMAGES, ETC.]
TOGETHER WITH all the estate, interest, right, title and other claim or
demand which Trustor now has or may hereafter acquire against anyone with
respect to any damage to all or any part of the Property, including, without
limitation, damage arising from any defect in or with respect to the design or
construction of all or any part of the Improvements and damage resulting
therefrom.
GRANTING CLAUSE TEN
[DEPOSITS, ADVANCE PAYMENTS AND REFUNDS OF INSURANCE, UTILITIES, ETC.]
TOGETHER WITH all deposits or other security or advance payments
including rental payments made by or on behalf of Trustor to others, and all
refunds made by others to Trustor, with respect to (i) insurance policies
relating to all or any part of the Property, (ii) utility service for all or any
part of the Property, (iii) cleaning, maintenance, repair, or similar services
for all or any part of the Property, (iv) refuse removal or sewer service for
all or any part of the Property, (v) rental of equipment, if any, used in the
operation, maintenance or repair by or on behalf of Trustor of all or any part
of the Property and (vi) parking or similar services or rights afforded to all
or any part of the Property.
GRANTING CLAUSE ELEVEN
[WATER RIGHTS, ETC.]
TOGETHER WITH all water rights, water stock, water permits and other
rights to the use of water that are now or that may be hereinafter used in
connection with the said Property, or any part thereof, or any improvements or
appurtenances thereto.
GRANTING CLAUSE TWELVE
[MINERALS, ETC.]
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.
GRANTING CLAUSE THIRTEEN
[ACCESSIONS, ETC.]
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TOGETHER WITH 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,
and all conversions of any of the foregoing; Trustor agrees that all property
hereafter acquired by Trustor and required by the Loan Agreement, this Deed of
Trust or any other Loan Document to be subject to the lien and security
interests created by this Deed of Trust shall forthwith upon the acquisition
thereof by Trustor be subject to the lien and security interests 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 the
Beneficiary is hereby authorized to receive any and all such property as and for
additional security for the Guarantied Obligations.
The entire estate, property and interest hereby conveyed to Trustee may
hereafter be referred to as the "Trust Estate."
FOR THE PURPOSE OF SECURING:
A. the Guarantied Obligations (as defined in the Guaranty);
B. the due and punctual payment and performance of any and all present
and future obligations and liabilities of Trustor of every type or description
to Beneficiary, arising under or in connection with this Deed of Trust or any
other Loan Document including for reimbursement of amounts permitted to be
advanced or expended by Beneficiary (i) to satisfy amounts required to be paid
by Trustor under this Deed of Trust or any other Loan Document together with
interest thereon to the extent provided, or (ii) to protect the Trust Estate,
together with interest thereon to the extent provided; and
C. all future advances pursuant to the Indenture or any other of the
Loan Documents, as future advances is defined by Nevada Revised Statutes ("NRS")
106.320;
in each case whether due or not due, direct or indirect, joint and/or several,
absolute or contingent, voluntary or involuntary, liquidated or unliquidated,
determined or undetermined, now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished and later increased,
created or incurred, whether or not arising after the commencement of a
proceeding under the Bankruptcy Code (including post-petition interest) and
whether or not allowed or allowable as a claim in any such proceeding (all
obligations and liabilities described herein, including, without limitation, the
Guarantied Obligations, are collectively referred to herein as the "Secured
Obligations").
To protect the security of its Deed of Trust, Trustor hereby covenants
and agrees as follows:
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ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
Certain Defined Terms As used herein, the following terms shall
have the following meanings:
"Accounts" shall have the meaning set forth in 9.1.2 hereof.
"Applicable Gaming Laws" has the meaning set forth in Recital D above.
"Applicable Laws" has the meaning set forth in Section 3.7 hereof.
"Beneficiary" has the meaning set forth in the Preamble.
"Casino" means a gaming establishment owned, directly or indirectly, by
Trustor and any hotel, building, restaurant, theater, amusement park, other
entertainment facility, parking facilities, retail shops, land, equipment and
other property asset directly ancillary thereto and used or to be used in
connection therewith.
"Casino License" means any material license, franchise or other approval
or authorization required to own, lease or operate a Casino, or otherwise
conduct gaming in any jurisdiction in which Trustor conducts, or proposes in
good faith to conduct, gaming business, including any applicable liquor license.
"Chattel Paper" has the meaning set forth in Section 9. 1. 1.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Documents" has the meaning set forth in Section 9.1.9.
"Environmental Damages" means all claims, judgments, damages, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs and expenses of investigation and defense of any claim, whether or not
such is ultimately defeated, and of any settlement or judgment, of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including, without limitation, reasonable attorneys fees, charges
and disbursements (including, without limitation, costs of appeal), and
consultants fees, any of which are actually incurred at any time as a result of
the existence or alleged existence of Hazardous Materials upon, about or beneath
the Property or migrating or threatening to migrate to or from the Property, or
the existence or alleged existence of a violation of Environmental Requirements
pertaining to the Property regardless of whether the existence of such Hazardous
Materials or the violation of Environmental Requirements arose prior to the
present ownership or operation of the Property, and including, without
limitation:
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(i) damages for personal injury, or injury to property or natural
resources occurring upon or off of the Property, foreseeable or unforeseeable,
including, without limitation, lost profits, consequential damages, the cost of
demolition and rebuilding of any improvements on real property, interest and
penalties including, but not limited to, claims brought by or on behalf of
employees of Trustor, with respect to which Trustor waives, for the benefit of
Beneficiary only, any immunity to which it may be entitled under any industrial
or workers compensation laws;
(ii) reasonable fees actually incurred for the services of
attorneys, consultants, contractors, experts, laboratories and all other costs
incurred in connection with the investigation or remediation of such Hazardous
Materials or violation of Environmental Requirements including, but not limited
to, the preparation of any feasibility studies or reports or the performance of
any cleanup, remedial, removal, abatement containment, closure, restoration or
monitoring work required by any federal, state or local governmental agency or
political subdivision, or reasonably necessary to make full economic use of the
Property or any other property or otherwise expended in connection with such
conditions, and including, without limitation, any reasonable attorneys fees,
charges and disbursements (including, without limitation, costs of appeal)
actually incurred in enforcing this Deed of Trust or collecting any sums due
hereunder; and
(iii) liability to any Person to indemnify such Person for actual
costs incurred in good faith in connection with the items referenced in
subparagraphs (i) and (ii) hereof
"Environmental Requirements" means the common law and all applicable
present and future statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions, franchises and
similar items, of all a governmental agencies, departments, commissions, boards,
bureaus or instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial and administrative and
regulatory decrees, injunctions, judgments and orders relating to the
environment, including, without limitation:
(i) all requirements, including, but not limited to, those
relating or pertaining to (A) reporting, licensing, permitting, investigation
and remediation of emissions, discharges, releases or threatened releases of
Hazardous Materials or other chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the environment (including, without limitation, ambient
air, surface water, groundwater or land surface or subsurface strata), (B) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of chemical substances, materials or wastes,
whether solid, liquid or gaseous in nature, including without limitation,
Hazardous Materials or (C) underground storage tanks and related piping, and
emissions, discharges, releases or threatened releases of Hazardous Materials or
other chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes whether solid, liquid or gaseous in nature
therefrom; and
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(ii) all other requirements pertaining to the protection of the
health and safety of employees or the public with respect to Hazardous
Materials.
"Equipment" has the meaning set forth in Section 9.1.7.
"Excluded Assets" has the meaning set forth in the Loan Agreement.
"Fixtures" has the meaning set forth in Section 9.1.7.
"Gaming Authority" has the meaning set forth in Recital D above.
"Gaming Equipment" means all equipment and supplies used in the
operation of a casino, including, without limitation, slot machines, gaming
tables, cards, dice, gaming chips, player tracking systems, and all other gaming
devices (as defined in NRS 463.0155), cashless wagering systems (as defined in
NRS 463.014) and associated equipment (as defined in NRS 463.0136).
"General Intangibles" has the meaning set forth in Section 9.1.10.
"Ground Lease" shall have the meaning set forth in Granting Clause One
above.
"Guarantied Obligations" has the meaning ascribed to such term in the
Guaranty.
"Guaranty" means that certain Guaranty, dated as of even date herewith,
made by each of the Guarantors in favor of Beneficiary.
"Hazardous Materials" means any chemical, material or substance:
(i) the presence of which requires investigation or remediation
under any federal, state or local law, statute, code, regulation, ordinance,
order, action or policy; or
(ii) which is or becomes defined as or included in the definition
of "hazardous substances," "hazardous wastes," "hazardous materials," extremely
hazardous waste," "restricted hazardous waste" or "toxic substances" or words of
similar import under any applicable local, state or federal law or under
regulations adopted or publications promulgated pursuant thereto, including, but
not limited to, any such laws or regulations promulgated by governmental
authorities of the State of Nevada; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq.; the Hazardous Materials Transportation Act as amended, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act as amended, 42
U.S.C. Section 6901, et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251, et seq.; or any substance defined as a
"hazardous substance," "hazardous waste," "hazardous substance," "highly
hazardous substance," "hazardous material" or words of similar meaning as
referred to in Nevada Revised Statutes ("NRS") Xxxxxxxx 000, 000, 000X, 000X,
000, XXX Sections 618.750-618.850, inclusive, NRS Section 477.045, and the
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Uniform Fire Code (1988 edition), as now existing and as hereafter amended, and
any administrative regulations adopted pursuant thereto;
(iii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is
or a becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, any state of
the United States, or any political subdivision thereof ("governmental
authority"); or
(iv) the presence of which on the Property causes or threatens to
pose a hazard to the Property or to the health or safety of Persons on or about
the Property; or
(v) without limitation, which contains gasoline, crude oil,
diesel fuel or other petroleum hydrocarbons in violation of applicable
Environmental Requirements; or
(vi) without limitation, which contains "PCBs" (as hereinafter
defined) or asbestos or urea formaldehyde foam insulation or radon gas.
"Impositions" means any and all (i) real estate and personal property
taxes and other taxes and assessments, water and sewer rates and charges levied
or assessed upon or with respect to the Property, and any and all other
governmental charges (including any penalties and other charges imposed by any
Gaming Authority) and any interest or costs or penalties with respect thereto,
in each case whether general, special, ordinary or extraordinary, foreseen or
unforeseen, of any kind and nature whatsoever that at any time prior to or after
the execution hereof may be assessed, levied, imposed, or become a lien upon the
Property or the Rents, but excluding taxes on Trustor's income or operating
revenues; (ii) charges for any easement or agreement maintained for the benefit
of the Property and (iii) other charges, expenses, payments or assessments of
any nature, if any, which are or may be assessed, levied, imposed or become a
lien upon the Property or the Rents, including mechanics and other Permitted
Liens.
"Impound Account" means the account that Trustor may be required to
maintain pursuant to Section 4.6.2 of this Deed of Trust for the deposit of
amounts required to pay Impositions and insurance premiums.
"Improvements" has the meaning set forth in Granting Clause Two.
"Indemnitees" has the meaning set forth in Section 11.2.7.
"Intangible Property" means any and all intangible personal property,
including, without limitation, (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the
Land, or the Improvements, including, without limitation, the name "Fitzgeralds
Reno, Inc." and any variations thereof, together with the goodwill associated
therewith, and all names, logos, and designs used by Trustor, or in connection
with the Land or the Improvements or in which Trustor has rights, with the
exclusive right to use such names,
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logos and designs wherever they are now or hereafter used in connection with the
Land or the Improvements, and any and all other trade names, trademarks or
service marks, whether or not registered, now or hereafter used in the operation
of the Land or the Improvements, including, without limitation, any interest as
a licensee or franchisee, and, in each case, together with the goodwill
associated therewith; (b) maps, plans, specifications, surveys, studies, tests,
reports, data and drawings relating to the development of the Land or the
Improvements 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 and all
architectural, structural, mechanical and engineering plans and specifications,
studies, data and drawings prepared for or relating to the development of the
Land or the Property 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; (c) any and all books, records, customer lists
(including lists or information derived from or related to the Player Tracking
System described within the definition of "Tangible Property"), 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), cash,
instruments, Chattel Papers, 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, 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; (d) all of Trustor's documents,
instruments, contract rights, and general intangibles including, without
limitation, all insurance policies, permits, licenses, franchises and agreements
required for the use, occupancy or operation of the Land, or any of the
Improvements (to the extent such licenses, permits and approvals are not
prohibited from being pledged under applicable law); (e) general intangibles,
vacation license resort agreements or other time share license or right to use
agreements with respect to the Land, the Improvements and/or the business being
conducted thereon, 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 (f) 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 options, option
rights and contract rights) now or hereafter obtained by Trustor from any
governmental authority having or claiming jurisdiction over the Land, the
Tangible Property, the Property or any other element of the Trust Estate or
providing access thereto, or the operation of any business on, at, or from the
Land, including, without limitation, any Casino Licenses.
"Intellectual Property Collateral" shall have the meaning set forth in
Section 9.1.15.
"Inventory" has the meaning set forth in Section 9.1.6.
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"Negotiable Collateral" means all of the Trustor's present and future
letters of credit, notes, drafts, instruments, Investment Property, documents,
personal property leases (wherein Trustor is the lessor), chattel paper, and
books and records relating to any of the foregoing.
"Land" has the meaning set forth in Granting Clause One.
"Leases" means any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreements and all other
agreements affecting or covering the Property or any portion thereof now or
hereafter existing or entered into, together with all amendments, extensions and
renewals of any of the foregoing.
"Loan Documents" has the meaning set forth in the Loan Agreement.
"NRS" means the Nevada Revised Statutes.
"PCBs" means polychlorinated biphenyls.
"Personalty" means the Intangible Property and the Tangible Property.
"Proceeds" has the meaning set forth in Section 9.1.22.
"Property" has the meaning set forth in Granting Clause Two.
"Public Waters" means any river, lake, stream, sea, ocean, gulf, bay or
other public body of water.
"Receiver" means any trustee, receiver, custodian, fiscal agent,
liquidator or similar officer.
"Rents" has the meaning set forth in Granting Clause Three.
"Tangible Property" means any and all tangible personal property,
including, without limitation, all goods, equipment, supplies, building and
other materials of every nature whatsoever and all other tangible personal
property constituting a part or portion of the Property and/or used in the
operation of any hotel, casino, restaurant store, parking facility, special
events arena, theme park, and any other commercial operations on the Property,
including but not limited to Inventory, 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 on all or any portion of
the Property 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 the Improvements, and all
construction materials and all Fixtures, including, but not limited to, all
gaming equipment and devices which are used in connection with the operation of
the Property and those items of Fixtures which are purchased or leased by
Trustor, machinery and any other
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item of personal property in which Trustor now or hereafter owns or acquires an
interest or right, and which are used or useful in the construction, operation,
use and occupancy of the Property; to the extent permitted by the applicable
contract or applicable law, all financial equipment computer equipment, player
tracking systems (including all computer hardware, operating software programs
and all right, title and interest in and to any applicable license therefor and
all equipment included within the definition of "associated equipment" under NRS
463.0136), calculators, adding machines, video game and slot machines, and any
other electronic equipment of every nature used or located on any part of the
Property, 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 Property.
"Title Policy" means the title insurance policy or policies in favor of
Beneficiary insuring the lien of this Deed of Trust.
"Trademarks" means trademarks, servicemarks and trade names (including
without limitation, the trademarks listed on Schedule A to the Trademark
Security Agreement, all registrations and applications to register such
trademarks, servicemarks and trade names and all renewals thereof, and the
goodwill of the business associated with or relating to such trademarks,
servicemarks and trade names, including without limitation any and all licenses
and rights granted to use any trademark, serviceman or trade name owned by any
other Person.
"Trust Estate" has the meaning set forth hereinabove.
"UCC" means the Uniform Commercial Code (as amended from time to time)
as adopted by the State of California.
Section 1.2 Related Matters
1.2.1 Terms Used in the UCC. Unless the context clearly
otherwise requires, all lower case terms used in Section 9 of this Deed of Trust
and not otherwise defined herein that are used or defined in Article 9 (or any
equivalent subpart) of the UCC have the same meanings herein.
1.2.2 Construction. Unless the context of this Deed of Trust
clearly requires otherwise, references to the plural include the singular, the
singular includes the plural, the part includes the whole, and "including" is
not limiting. The words "hereof," "herein," "hereby," "hereunder" and similar
terms in this Deed of Trust refer to this Deed of Trust as a whole (including
the Preamble, the Recitals and all Schedules and Exhibits, but subject to
Section 1.2.5) and not to any particular provision of this Deed of Trust.
Article, section, subsection, exhibit, recital, preamble and schedule references
in this Deed of Trust are to this Deed of Trust unless otherwise specified.
References in this Deed of Trust to any agreement, other document or law "as
amended" or "as may be amended from time to time," or to amendments of any
document or law, shall include any amendments, supplements, replacements,
renewals or other modifications.
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1.2.3 Determinations. Any determination or calculation
contemplated by this Deed of Trust that is made by Beneficiary shall be final
and conclusive and binding upon the Trustor and Fitzgeralds in the absence of
manifest error. References in this Deed of Trust to "determination" by
Beneficiary include good faith estimates (in the case of quantitative
determinations) and good faith beliefs (in the case of qualitative
determinations). All references herein to "discretion" of Beneficiary (or terms
of similar import) shall mean "absolute and sole discretion." All consents and
other actions of Beneficiary contemplated by this Deed of Trust may be given,
taken, withheld or not taken in Beneficiary's discretion (whether or not so
expressed), except as otherwise expressly provided herein. No approval or
consent of Beneficiary shall be effective unless the express written approval or
consent of Beneficiary is received by Trustor.
1.2.4 Governing Law. This Deed of Trust shall be governed by,
and construed in accordance with, the laws (other than the rules regarding
conflicts of laws) of the State of California, except the provisions hereof
relating to the creation, perfection and enforcement of the lien and security
interest in that portion of the Trust Estate which is real property or fixtures
which shall be governed by the laws of the State of Nevada. Notwithstanding
anything to the contrary set forth in this Section 1.24, this Deed of Trust is
subject to the Applicable Gaming Laws of the State of Nevada. Beneficiary and
Trustee each agrees to cooperate with the Gaming Authorities of the State of
Nevada in connection with the administration of their regulatory jurisdiction
over Trustor, including the provision of such documents or other information as
may be requested by the Gaming Authorities of the State of Nevada relating to
Trustor or to the Loan Documents.
1.2.5 Headings. The Article and Section headings used in this
Deed of Trust are for convenience of reference only and shall not affect the
construction hereof.
1.2.6 Severability. If any provision of this Deed of Trust or
any lien or other right hereunder shall be held to be invalid, illegal or
unenforceable under Applicable Law in any jurisdiction, such provision, lien or
other right shall be ineffective only to the extent of such invalidity,
illegality or unenforceability, which shall not affect any other provisions
herein or any other lien or right granted hereby or the validity, legality or
enforceability of such provision, lien or right in any other jurisdiction.
1.2.7 Exhibits and Schedules. All of the appendices, exhibits
and schedules attached to this Deed of Trust shall be deemed incorporated herein
by reference.
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ARTICLE 2.
[RESERVED]
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor hereby represents and warrants to Beneficiary and Trustee that:
Section 3.1 Corporate Existence. Trustor (a) is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, and (b) has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged or presently proposes to engage, (c) is duly qualified and is
authorized to do business and is in good standing as a foreign corporation in
every jurisdiction in which it owns or leases real property or in which the
nature of its business requires it to be so qualified; and (d) the principal
place of business (as defined in the UCC) of Trustor is in Nevada.
Section 3.2 Authorization; Approvals. The execution, delivery
and performance by Trustor of this Deed of Trust are within Trustor's corporate
powers and authority, have been duly authorized by all necessary corporate
action, and do not contravene (a) Trustor's charter or by-laws or (b) any law or
any contractual restriction binding on or affecting Trustor or the Property. All
authorizations or approvals or other actions by, or notice to or filing with,
any governmental authority required for the due execution, delivery and
performance by Trustor of this Deed of Trust have been duly obtained and are in
full force and effect.
Section 3.3 Enforceability. This Deed of Trust has been duly
executed and delivered by Trustor and is the legal, valid and binding obligation
of Trustor, enforceable against Trustor in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors rights generally and general principles of equity.
Section 3.4 Validity and Perfection of Security Interests. The
liens and security interests in the Trust Estate created in accordance with the
terms hereof constitute valid security interests, and, (a) upon recordation of
this Deed of Trust in the appropriate office in Washoe County, Nevada, (b) upon
the filing of financing statements naming Trustor as "Debtor" and Beneficiary as
"Secured Party" and describing the Trust Estate in the filing offices of the
Secretary of State of Nevada and in the real estate records of Washoe County,
Nevada, (c) upon the delivery of any instruments and Chattel Paper which are
included in the Trust Estate to Beneficiary, (d) to the extent subject to U.S.
federal law and not Article 9 of the UCC, upon recordation of the security
interests granted in patents, if any, Trademarks (as defined in the Trademark
Security Agreement) and Copyrights (as defined in the Copyright Security
Agreement) in the U.S. Patent and Trademark Office and the U.S. Copyright
Office, as applicable, along with the registration of all U.S. Copyrights in the
U.S. Copyright Office and, to the extent governed by foreign law, the taking of
all steps necessary under applicable foreign law to perfect or record the
security interest in all foreign Intellectual Property Collateral applications
and registrations and (e) to the extent ownership of Collateral is represented
by a certificate, a notation on the certificate of the lien granted hereby, the
security interests granted to Beneficiary hereunder will constitute perfected
security interests
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therein superior and prior to all liens, rights or claims of all other Persons
other than Permitted Liens.
Section 3.5 Title to and Right to Use Assets. Trustor has good
and marketable fee simple title in the Land and is the legal and beneficial
owner of the remainder of the Trust Estate (and as to the Trust Estate whether
now existing or hereafter acquired, Trustor will continue to own each item
thereof), free and clear of all liens except Permitted Liens. Trustor has the
right to hold, occupy and enjoy its interest in the Trust Estate subject to the
terms of the Casino Licenses and subject to the Permitted Liens, and has valid
right, full power and legal authority, subject to Applicable Gaming Laws, to
mortgage and pledge the same as provided herein, and Trustor shall defend the
Trust Estate against all claims and demands of all Persons at any time claiming
the same or any interest therein adverse to Beneficiary (except for Permitted
Liens) and Beneficiary may, subject to Applicable Gaming Laws, at all times
peaceably and quietly enter upon, hold, occupy and enjoy the entire Trust Estate
in accordance with the terms hereof.
Section 3.6 Non-Contravention. Neither the execution, delivery
or performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any government, regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trustor or the Trust Estate, or (iii) result in or require the creation
or imposition of (or the obligation to create or impose) any lien (other than
the lien contemplated hereby or by any other Loan Document), upon or with
respect to any of the property or assets now owned or hereafter acquired by
Trustor.
Section 3.7 Contracts. Each material contract which is part of
the Trust Estate (each, a "Contract"), (i) is the genuine, legal, valid, and
binding obligation of Trustor, (ii) is enforceable against Trustor in accordance
with its terms, (iii) is in full force and effect and is, to Trustor's
knowledge, not subject to any setoffs, defenses, overdue taxes, counterclaims or
other claims, nor have any of the foregoing been asserted or alleged as to any
Contract, and (iv) is, in all material respects, in compliance with all
applicable laws, whether federal, state, local or foreign ("Applicable Laws").
Neither Trustor nor, to the best knowledge of Trustor, any other party to any
Contract is in default in the performance or observance of any of the terms
thereof. No party to any Contract is the United States government or an
instrumentality thereof.
Section 3.8 Leases. Trustor has delivered to Beneficiary true,
correct and complete copies of all Leases and the Ground Lease, including all
amendments thereof and modifications thereto. Each Lease and each Ground Lease
(i) is the genuine, legal, valid and binding obligation of Trustor, (ii) is
enforceable against Trustor and, to the best of Trustor's knowledge, the other
party thereto, in accordance with its terms, (iii) is in full force and effect
and is not subject to any setoffs, defenses, taxes, counterclaims or other
claims, nor have any of
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the foregoing been asserted or alleged as to any Lease, and (iv) is in
compliance with all applicable laws, whether federal, state, local or foreign.
Section 3.9 No Other Property. The Trust Estate constitutes all
of the property (whether owned, leased or otherwise) currently used by Trustor
in connection with the operation of the Fitzgeralds Reno Casino, other than
Exluded Assets.
Section 3.10 Compliance with Laws. To the best knowledge of
Trustor, except as otherwise disclosed in writing to Beneficiary, the Trust
Estate and the proposed and actual use thereof comply in all material respects
with all Applicable Laws, and there is no proceeding pending or, to the best
knowledge of Trustor, threatened before any court, quasi-judicial body,
governmental authority or administrative agency relating to the validity of the
Loan Documents or the proposed or actual use of the Trust Estate.
Section 3.11 Property Use; Mechanics Liens. The Property is not
used principally or primarily for agricultural or grazing purposes. All costs
for labor and material for the removal, construction and renovation of the
Improvements (including, without limitation, any additions and alterations
thereto) have been paid in full or will be paid in accordance with Section 4.15
hereof.
Section 3.12 Condemnation. There are no pending or, to the best
knowledge of Trustor, threatened condemnation or eminent domain proceedings
against the Trust Estate or any part thereof.
Section 3.13 Litigation. Except as disclosed in writing to
Beneficiary on the date hereof, there are no pending or, to the best knowledge
of Trustor, threatened, actions, claims, proceedings, investigations, suits or
proceedings before any court, governmental agency or arbitrator.
Section 3.14 Construction of Improvements. All Improvements have
been and will be constructed in all material respects in accordance with
Applicable Laws and all requirements of governmental authorities and
governmental approvals. To the best knowledge of Trustor, the Improvements are
free from latent and patent defects, and do not require any material repairs,
reconstruction or replacement on the date hereof (except for any material
repairs, reconstruction or replacement that do not have a material adverse
effect on the value of the Improvements and do not materially and adversely
affect Trustor's use and operation of the Improvements).
ARTICLE 4.
AFFIRMATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
Section 4.1 Secured Obligations of Trustor. Trustor will
perform, observe and comply with its Secured Obligations arising under this Deed
of Trust and shall continue to be
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liable for the performance of its Secured Obligations arising under this Deed of
Trust until discharged in full, notwithstanding any actions of partial
foreclosure that may be brought hereunder to recover any amount or amounts
expended by Beneficiary on behalf of Trustor in order to cure any of Trustor's
defaults or to satisfy any of Trustor's obligations or covenants under any
agreement relating to the Trust Estate and to which Trustor is a party or by
which the Trust Estate is bound.
Section 4.2 Compliance with Law: Maintenance of Approvals.
Except as expressly permitted by the Loan Agreement, Trustor shall (i) comply
with all requirements of law applicable to the ownership, operation, use and
occupancy of all or any portion of the Trust Estate, whether or not such
compliance requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, or structural or nonstructural, and (ii)
maintain in full force and effect all authorizations, approvals or other
actions, including, without limitation, Casino Licenses and liquor licenses and
permits, which are necessary or desirable for the performance of Trustor's
obligations pursuant to this Deed of Trust or for the business conducted by
Trustor on the Property.
Section 4.3 Other Reports. Trustor shall provide from time to
time such additional information regarding Trustor or the Trust Estate as are
required under the Loan Agreement or as Beneficiary may reasonably request.
Section 4.4 Insurance. Trustor, at its sole cost and expense,
will provide, maintain and keep in force the insurance required by Section 6.10
of the Loan Agreement ("Insurance Policies").
Section 4.5 Waste and Repair. Except as may be expressly
permitted by the Loan Agreement, Trustor shall at all times cause the Trust
Estate to be maintained in normal working order and condition (reasonable wear
and tear excepted). Trustor shall not suffer any waste of the Property or do or
permit to be done thereon anything not otherwise permitted in the Loan Agreement
that may in any way impair the security of this Deed of Trust. Trustor shall not
abandon the Property nor leave the Property unprotected or deserted.
Section 4.6 Impositions; Impounds; Taxes, Capital Costs.
Section 4.6.1 Impositions Affecting the Property. Trustor shall
pay when due all Impositions (or currently payable installments thereof) that
are or that may become a lien on the Property or are assessed against the
Property or the Rents; provided, however, that Trustor may, at its expense,
contest the amount or validity or application of any such Impositions by
appropriate legal proceedings promptly initiated and conducted in good faith and
with due diligence; provided, that (i) neither the Property nor any substantial
part thereof will be in danger of being sold, forfeited, terminated, canceled,
or lost as a result of such contest, and (ii) except in the case of a lien
junior to the lien of this Deed of Trust, Trustor shall have posted such bond or
furnished such other security as may be required by law to release such lien.
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4.6.2 Impounds; Impound Account. Upon the occurrence and during
the continuance of an Event of Default and at the request of Beneficiary,
Trustor will pay to Beneficiary monthly an amount equal to one-twelfth (1/12th)
of the annual cost (or such greater amount as may be reasonably necessary for
Beneficiary to have on hand sufficient funds to pay the next installment prior
to delinquency) of Impositions on the Property (but only those Impositions
defined in clause (i) of the definition of "Impositions"), together with an
amount equal to the estimated next hazard and other required insurance premiums
in order to accumulate with Beneficiary sufficient funds to pay such Impositions
and premiums at least 30 days prior to their respective due dates. Such funds
shall be held by Beneficiary on a commingled basis and shall not bear interest.
Said accumulated funds shall be paid and applied by Beneficiary with respect to
such Impositions and insurance premiums as and when due.
Section 4.7 Further Assurances. Trustor shall, at its own
expense, perform such acts as may be necessary, or that Beneficiary may request
at any time, to execute, acknowledge and deliver all such additional papers and
instruments (including, without limitation, a declaration of no setoff) and all
such further assurances of title and will do or cause to be done all further
acts and things as may be proper or reasonably necessary to carry out the
purpose hereof and to subject to the liens hereof any property intended by the
terms hereof to be covered thereby and any renewals, additions, substitutions,
replacements or betterments thereto.
Section 4.8 Reimbursement: Waiver of Offsets.
4.8.1 In the event any tax, stamp tax, assessment water rate,
sewer rate, insurance premium, repair, rent charge, debt, claim, inspection,
Imposition or lien having priority over the lien of this Deed of Trust or in the
event any other amount required to be paid by Trustor hereunder shall remain
unpaid and Trustor is not contesting such amount pursuant to the terms hereof or
the Loan Agreement, Beneficiary shall have the right to pay such amount and
shall have the right to declare immediately due and payable any such amount so
paid. Any amount so paid by Beneficiary shall bear interest at the default
interest rate specified in Section 2.6(c) of the Loan Agreement ("Default Rate")
from the date of payment by Beneficiary, shall constitute an additional Secured
Obligation secured hereby, prior to any right, title or interest in or claim
upon the Trust Estate attaching or accruing subsequent to the lien of this Deed
of Trust, shall be secured by this Deed of Trust and shall be payable by Trustor
to Beneficiary within thirty (30) days after receipt by Trustor of written
demand.
4.8.2 Except as otherwise provided herein, in the Loan Agreement
or in the other Loan Documents, all sums payable by Trustor hereunder or under
the other Loan Documents shall be paid without notice, demand, counterclaim,
setoff, deduction or defense and without abatement, suspension, deferment,
diminution or reduction, and the obligations and liabilities of Trustor
hereunder shall in no way be released, discharged or otherwise affected by
reason of: (i) any damage to or destruction of or any condemnation or similar
taking of the Trust Estate or any part thereof, (ii) any restriction or
prevention of or interference with any use of the
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Trust Estate or any part thereof, (iii) any title defect or encumbrance or any
eviction from the Property or the Improvements or any part thereof by title
paramount or otherwise; (iv) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to Beneficiary, or any action taken with respect to this Deed of Trust
by any trustee or receiver of Beneficiary, or by any court, in any such
proceeding; (v) any claim which Trustor has or might have against Beneficiary;
(vi) any default or failure on the part of Beneficiary to perform or comply with
any of the terms hereof or of any other agreement with Trustor or (vii) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing;
whether or not Trustor shall have notice or knowledge of any of the foregoing.
Trustor waives all rights now or hereafter conferred by statute or otherwise to
any abatement, suspension, deferment, diminution or reduction of any sum secured
hereby and payable by Trustor.
Section 4.9 Litigation. Trustor will, promptly upon obtaining actual
knowledge thereof, give notice in writing to Beneficiary of any litigation
commenced that is likely to have a material adverse effect on the Property or
the liens created hereby other than unlawful detainer proceedings brought by
Trustor.
Section 4.10 Certain Reports. Trustor will, promptly and in any event
within fifteen days after actual receipt by Trustor thereof, deliver to
Beneficiary a copy of any written notice or citation concerning any actual,
alleged or suspected violation of Environmental Requirements or liability of
Trustor for Environmental Damages in connection with the Property or past or
present activities of any Person thereon.
Section 4.11 Tax Receipts. Subject to the provisions of Section 4.6.1
hereof, Trustor shall provide to Beneficiary, within 30 days after demand made
therefor, bills (which shall be receipted from and after the date receipted
bills are obtainable) showing the payment to the extent then due of all taxes,
assessments (including those payable in periodic installments), water rates,
sewer rates, and/or any other Imposition that have become a lien (other than an
inchoate lien) upon the Trust Estate.
Section 4.12 FIRPTA Affidavit. Trustor hereby represents and warrants to
Beneficiary under penalty of perjury:
(i) Trustor's U.S. Taxpayer Identification Number is 00-0000000;
(ii) Trustor's business address is set forth in the preamble
hereto; and
(iii) Trustor is not a "foreign person" within the meaning of
Sections 1445 and 7701 of the Code (i.e., Trustor is not a nonresident
alien, foreign corporation, foreign partnership, foreign trust or
foreign estate as those terms are defined in the Code and regulations
promulgated thereunder).
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Trustor agrees to indemnify, defend, protect and hold Beneficiary
and Beneficiary's agents harmless of, from and against any and all loss,
liability, costs, damages, claims or causes of action including
reasonable attorneys fees, costs and expenses which may be actually
incurred by Beneficiary or Beneficiary's agents by reason of any failure
of any representation or warranty made by Trustor in this Section 4.12
to be true and correct in all respects, including, but not limited to,
any liability for failure to withhold any amount required under Code
Section 1445 in the event of foreclosure or other transfer of the
Property.
Section 4.13 Preservation of Contractual Rights. Except as otherwise
expressly permitted by the Loan Agreement, 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 (a)
under which it holds any Tangible Property, or (b) which constitutes part of the
Intangible Property.
Section 4.14 Tax Service Contract. At any time after the occurrence of
an Event of Default (whether or not such Event of Default is cured), at the
request of Beneficiary and at Trustor's and/or its permitted successor's sole
expense, Beneficiary shall be furnished a tax service contract in form
satisfactory to Beneficiary issued by a tax reporting agency satisfactory to
Beneficiary, which contract shall remain in force until indefeasible discharge
in full of the Secured Obligations.
Section 4.15 Liens. Trustor shall pay and promptly discharge, at
Trustor's cost and expense, all liens upon the Trust Estate, or any part thereof
or interest therein other than the Permitted Liens. Trustor shall have the right
to contest in good faith the validity of any such lien, provided Trustor shall
first post such bond or furnish such other security as may be required by law to
release such lien, and provided however that Trustor shall thereafter diligently
proceed to cause such lien to be removed and discharged. If Trustor shall fail
to discharge any such lien, then, in addition to any other right or remedy of
Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same,
either by paying the amount claimed to be due, or by procuring the discharge of
such lien by depositing in court a bond for the amount claimed or otherwise
giving security for such lien, or in such manner as is or may be prescribed by
law. Any amount so paid by Beneficiary shall bear interest at the Default Rate
from the date of payment by Beneficiary, shall constitute an additional Secured
Obligation secured hereby, prior to any right, title or interest in or claim
upon the Trust Estate attaching or accruing subsequent to the lien of this Deed
of Trust shall be secured by this Deed of Trust and shall be payable by Trustor
to Beneficiary upon demand.
Section 4.16 Inspection. Trustor shall permit Beneficiary, upon 24 hours
prior notice, to enter upon and inspect during normal business hours, the
Property and the construction and operation thereof, for such purposes
reasonably deemed necessary by Beneficiary, it being agreed by Trustor that
Beneficiary's good faith belief of the existence of a past or present release or
threatened release of any Hazardous Material into, onto, beneath or from the
Property
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shall be conclusively deemed reasonable; provided, however, that no such prior
notice shall be necessary and such inspection may occur at any time if (i)
Beneficiary reasonably believes that an emergency exists or is imminent or (ii)
the giving or delivery of such notice is prohibited or stayed by Applicable
Laws.
ARTICLE 5.
LEASEHOLD PROVISIONS
Section 5.1 Deed of Trust Subject to Ground Lease. This Deed of Trust is
made subject to whatever rights and interest the Lessor(s) may have under each
lease defined herein as one of the Ground Lease and the covenants, conditions
and restrictions set forth therein. This Deed of Trust shall not be construed so
as to constitute a default under any Ground Lease pursuant to Applicable Law or
the terms of such Ground Lease, and this Deed of Trust and the lien created
hereby shall be of no further force and effect if deemed by a court of competent
jurisdiction to violate the terms of such Ground Lease or Applicable Law.
Section 5.2 Certain Covenants. Trustor covenants and agrees as follows:
5.2.1 Trustor shall keep and perform, in all material respects,
the covenants, agreements and obligations of the lessee set forth in the Ground
Lease, and not to commit, suffer or permit any material breach thereof. If
Trustor shall default under any of the Ground Lease, Beneficiary shall have the
right, but not the obligation, to take any action necessary or desirable to cure
any default by Trustor in the performance of any of the terms, covenants and
conditions of the Ground Lease, Beneficiary being authorized to enter upon the
leased premises for such purposes. Any default by the Trustor as lessee under
any of the leases defined herein as the "Ground Lease" or breach of an
obligation thereunder shall be a default hereunder, provided that such shall not
constitute a default hereunder until the expiration of any applicable lessee
notice and grace period under the Ground Lease and the failure of Trustor to
cure such default or breach under the Ground Lease within such grace period.
5.2.2 Trustor shall give prompt notice to Beneficiary of the
actual receipt by it of written notice of default served on Trustor from the
holder of the lessor's interest under the Ground Lease ("Lessor"), and to
furnish to Beneficiary all information that it may reasonably request concerning
the performance by Trustor of the covenants of the Ground Lease, including,
without limitation, evidence of payment of ground rent, taxes, insurance
premiums and operating expenses.
5.2.3 So long as this Deed of Trust is in effect, there shall be
no merger of the Ground Lease or any interest therein nor of the leasehold
estate created thereby with the fee estate in the land leased thereunder
("Leased Land") or any portion thereof by reason of the fact that the Ground
Lease or such interest therein or such leasehold estate may be held directly or
indirectly by or for the account of any person who shall hold the fee estate in
the Leased Land
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or any portion thereof or any interest of the Lessor. In case Trustor acquires
the fee title or any other estate, title or interest in the Leased Land covered
by the Ground Lease, this Deed of Trust shall attach to and cover and be a lien
upon the fee title or any other estate, title or interest in the Leased Land
covered by the Ground Lease, this Deed of Trust shall attach to and cover and be
a lien upon the fee title or such other estate so acquired, and such fee title
or other estate shall, without further assignment, mortgage or conveyance,
become and be subject to the lien of and covered by this Deed of Trust. Trustor
shall notify Beneficiary of any such acquisition by Trustor and, on written
request by Beneficiary, shall at its own expense cause to be executed and
recorded all such other and further assurances or other instruments in writing
as may in the opinion of Beneficiary be required to carry out the intent and
meaning hereof.
5.2.4 Trustor shall not surrender any Ground Lease (except a
surrender upon the expiration of the term of the applicable Ground Lease or upon
the termination by the Lessor thereunder pursuant to the provisions thereof) to
the Lessor thereunder, or any portion thereof or of any interest therein, and no
termination of any Ground Lease, by Trustor as lessee thereunder, shall be valid
or effective, and the Ground Lease shall not be surrendered or canceled,
amended, other than in immaterial respects, or subordinated to any fee mortgage,
to any lease, or to any other interest, either orally or in writing, without the
prior written consent of Beneficiary so long as this Deed of Trust is in effect.
Any attempted surrender, amendment (except in immaterial respects), cancellation
or termination of any Ground Lease by Trustor without obtaining the prior
written consent of Beneficiary shall be null and void and without force and
effect on the Ground Lease, and such attempt shall constitute a default
hereunder.
5.2.5 If and to the extent required by the terms of the Ground
Lease, Trustor shall, promptly after the execution and delivery of this Deed of
Trust or of any instrument or agreement supplemental thereto, notify such Lessor
in writing of the execution and delivery thereof and deliver to each such Lessor
a copy of such Deed of Trust, instrument or agreement, as the case may be.
5.2.6 If any Ground Lease is terminated prior to natural
expiration of its term by reason of default of Trustor, and if, pursuant to any
provision of the Ground Lease, or otherwise, Beneficiary or its designee shall
acquire from the Lessor thereunder a new lease of the Leased Land, or of any
part of the Leased Land, Trustor shall have no right, title or interest in or to
such new lease or the leasehold estate created thereby.
5.2.7 Trustor hereby warrants the quiet and peaceful possession
of the Property by Trustee for the benefit of Beneficiary after the occurrence
of an Event of Default for so long as the Deed of Trust is in effect and further
warrants and agrees to defend the leasehold estate created under each Ground
Lease for the remainder of the term set forth therein against each and every
person claiming the same or any part thereof.
5.2.8 In the event of the termination, rejection or
disaffirmance by the Lessor (or by any receiver, trustee, custodian, or other
party that succeeds to the rights of any Lessor, pursuant to any section or
chapter of the Bankruptcy Code, or any similar law, whether
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state, federal or otherwise, relating to insolvency, reorganization or
liquidation, or for the relief of debtors (each such law referred to herein as a
"Bankruptcy Law" and all such laws collectively referred to herein as
"Bankruptcy Laws"), Trustor hereby presently, absolutely, and irrevocably grants
and assigns to Beneficiary the sole and exclusive right to make or refrain from
making any election available to lessees under any Bankruptcy Law (including,
without limitation, the election available pursuant to Section 365(h) of the
Bankruptcy Code, 11 U.S.C. Section 365(h), and any successor provision), and
Trustor agrees that any such election, if made by Trustor without the prior
written consent of Beneficiary (which Beneficiary would not anticipate granting
due to the importance of the Ground Lease as security), shall be void and of no
force or effect.
5.2.9 In the event there is a termination, rejection or
disaffirmance by any Lessor (or by any receiver, trustee, custodian or other
party that succeeds to the rights of any Lessor) as described in Section 5.2.8
above, and Beneficiary elects to have Trustor remain in possession under any
legal right, Trustor may have to occupy the premises leased pursuant to any
Ground Lease, then (i) Trustor shall remain in such possession and shall perform
all facts necessary for Trustor to retain its right to remain in such
possession, whether such acts are required under the then existing terms and
provisions of the Ground Lease or otherwise, (ii) all of the terms and
provisions of this Deed of Trust and the lien created hereby shall remain in
full force and effect and shall be extended automatically to such possession,
occupancy, and interest of the Trustor, to all rights of Trustor to such
possession, occupancy and interest, and to all of Trustor's rights and remedies
against the Lessor under the Bankruptcy Laws, and (iii) Trustor hereby agrees
with Beneficiary that if Trustor shall seek to offset against the rent reserved
in the Ground Lease any damages or other amounts pursuant to any right of offset
available to lessees under any Bankruptcy Laws for any damages sustained by
reason of the failure by the applicable Lessors to perform their obligations,
then not less than thirty (30) days prior to effecting any such offset, Trustor
shall give written notice to Beneficiary of the amount of the proposed offset
and the basis therefor, and if Beneficiary objects, within thirty (30) days
after receipt of such notice, to the offset on the basis that it may constitute
a breach of the Ground Lease, then Trustor shall not effect the offset of any
amounts so objected to by Beneficiary and Trustor agrees that any such election,
if made by Trustor without the prior written consent of Beneficiary, shall be
void and of no force or effect.
5.2.10 Trustor shall use its commercially reasonable efforts
(not including the payment of any money or other consideration to any third
party) to obtain from time to time, promptly after request by Beneficiary, from
the Lessor and deliver to Beneficiary, at no cost to Beneficiary, a Lessor's
estoppel certificate thereunder in such form as may reasonably be requested by
Beneficiary. Notwithstanding the foregoing, Trustor's failure to obtain an
estoppel certificate from any Lessor shall not be deemed an Event of Default
hereunder provided Trustor has used its commercially reasonable efforts (as
modified above).
5.2.11 If at any time Trustor fails to comply in any material
respect with any of Trustor's material obligations under any Ground Lease and
the Lessor notifies
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Beneficiary thereof, then Beneficiary or Trustee may, but without obligation to
do so and after providing reasonable notice to Trustor (provided that no notice
shall be required in the event of an emergency or if the Ground Lease is in
danger of being terminated) and without releasing Trustor from any obligation
hereunder or removing or waiving any default hereunder, perform on behalf of
Trustor any such obligations, and any and all costs and expenses (including,
without limitation, attorneys fees) incurred by Beneficiary or Trustee in
connection therewith shall be repayable upon demand by Trustor, with interest
thereon at the Default Rate, and shall be secured hereby; provided that the
foregoing shall not be construed to require Beneficiary or Trustee to incur any
expense or take any action with respect to Trustor's failure to comply with any
of Trustor's obligations under any Ground Lease.
5.2.12 Trustor, promptly upon receiving written notice of a
breach by the Lessor (or by any receiver, trustee, custodian or other party that
succeeds the rights of the Lessor) or of any inability of the Lessor to perform
the terms and provisions of any Ground Lease (including, without limitation, by
reason of a termination, rejection, or disaffirmance by such Lessor pursuant to
any Bankruptcy Laws), which would materially impair the value of any Ground
Lease, will notify Beneficiary in writing of any such breach or inability.
Trustor hereby assigns to Beneficiary the proceeds of any claims that Trustor
may have against such Lessor for any such breach or inability by such Lessor. So
long as no Event of Default has occurred and is continuing, Trustor shall have
the sole right to proceed against such Lessor in Trustor's and Beneficiary's
behalf and to receive and retain all proceeds of such claims, except as
otherwise provided in the Loan Agreement. During the continuance of an Event of
Default, Beneficiary shall have the sole right to proceed against Lessor, and
Trustor shall cooperate with Beneficiary in such endeavor. Trustor shall, at its
expense, diligently prosecute any such proceedings, shall deliver to Beneficiary
copies of all papers served in connection therewith, and shall consult and
cooperate with Beneficiary and its attorneys and agents in the carrying on and
defense of any such proceedings. 5.2.13 Notwithstanding anything to the contrary
in this paragraph, if there is an Event of Default which remains uncured, then
Beneficiary shall have the right, but not the obligation, to conduct and
control, through counsel of Beneficiary's choosing, all litigation and other
proceedings under the Bankruptcy Laws relating to the Lessor, and any expenses
incurred by Beneficiary in such litigation and proceedings will be additional
indebtedness of Trustor secured by this Deed of Trust, will bear interest at the
Default Rate and will be payable by Trustor upon demand. No settlement of any
such proceeding shall be made by Trustor without Beneficiary's prior written
consent.
5.2.14 In addition to any and all other assignments contained in
this Deed of Trust, Trustor hereby absolutely, presently and unconditionally
assigns, transfers and sets over to Beneficiary all of Trustor's claims and
rights to the payment of damages, and any other remedies available to Trustor,
arising from any rejection of any Ground Lease by the Lessor thereunder pursuant
to any Bankruptcy Law. This assignment constitutes a present, absolute,
irrevocable and unconditional assignment of the foregoing claims, rights and
remedies, and shall
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continue in effect until all the indebtedness and obligations secured by this
Deed of Trust shall have been satisfied and discharged in full.
Notwithstanding the foregoing, so long as no uncured Event of Default
has occurred and is continuing, Trustor shall have an absolute license to assert
and settle any and all such claims, and to receive and apply all proceeds
thereof as Trustee shall determine in its discretion.
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
Section 6.1 Restrictive Uses. Trustor covenants not to suffer any liens
against the Trust Estate (other than Permitted Liens).
Section 6.2 No Cooperative or Condominium. Trustor shall not operate or
permit the Property to be operated as a cooperative or condominium building or
buildings in which the tenants or occupants participate in the ownership,
control or management of the Property or any part thereof, as tenant
stockholders or otherwise.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
Section 7.1 Casualties.
7.1.1 Trustor will notify Beneficiary in writing promptly after
loss or damage caused by fire, wind or other casualty to the Property
("Casualty").
7.1.2 Any and all proceeds from Insurance Policies payable to
Beneficiary under the Loan Agreement shall be treated in accordance with Section
6.10 of the Loan Agreement and shall be released to Trustor or applied to the
discharge of the Secured Obligations as set forth in the Loan Agreement.
Section 7.2 Condemnation. Trustor, immediately upon obtaining knowledge
of the institution of any proceedings for the condemnation of the entire
Property or any material portion thereof, will notify Trustee and Beneficiary of
the pendency of such proceedings. Trustee and Beneficiary may participate in any
such proceedings and Trustor from time to time will deliver to Beneficiary all
instruments requested by Beneficiary to permit such participation; provided,
however, that Trustor shall have the sole right to participate in and settle any
and all such proceedings unless an Event of Default then exists. In any such
condemnation proceedings Beneficiary may be represented by counsel selected by
Beneficiary at the sole cost and expense of Trustor. Trustor shall cause the net
proceeds of any award or compensation or payment in lieu or settlement thereof,
to be applied as set forth in Section 6.10 of the Loan Agreement. To the extent
permitted by applicable law, Trustor hereby specifically, unconditionally and
irrevocably
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waives all rights of a property owner granted under applicable law, including
NRS 37.115, which provide for allocation of condemnation proceeds between a
property owner and a lienholder.
ARTICLE 8.
REMEDIES OF BENEFICIARY
Section 8.1 Event of Default. Subject to any applicable cure period
provided for in the Loan Agreement or in this Deed of Trust, or if no cure
period has been specified, then 30 days after Beneficiary has provided written
notice to Trustor with respect thereto (any such cure periods to run
concurrently, and not consecutively, with any other cure periods provided herein
or by law) any of the following shall be deemed to be an "Event of Default"
hereunder:
8.1.1 The occurrence of one or more "Events of Default" (as
defined in Section 8.1 of the Loan Agreement) shall constitute an Event of
Default under this Deed of Trust;
8.1.2 Failure of Trustor to perform any of the terms, covenants
and conditions in this Deed of Trust or any of the other Loan Documents;
8.1.3 Any statement, representation or warranty given by Trustor
to Trustee or Beneficiary in any of the Loan Documents, in connection with the
Loan Agreement or in any other document provided by Trustor, including this Deed
of Trust, is found to be materially false or misleading;
8.1.4 A material default under or the institution of foreclosure
or other proceedings to enforce, any lien or Permitted Lien of any kind upon the
Property or any portion thereof.
In addition, to the maximum extent permitted by applicable law, it shall be an
Event of Default hereunder if Trustor, or any other "borrower" (as that term is
defined in NRS 106.310) who may send a notice pursuant to NRS 106.380(1), with
respect to this Deed of Trust, (i) delivers, sends by mail or otherwise gives,
purports to deliver, send by mail or otherwise give, to Beneficiary (A) any
notice of an election to terminate the operation of this Deed of Trust as
security for any secured obligation, including, without limitation, any
obligation to repay any "future advance" (as defined in NRS 106.320) of
"principal" (as defined in NRS 106.345), or (B) any other notice pursuant to NRS
106.380(1), (ii) records a statement pursuant to NRS 106.380(3), or (iii) causes
this Deed of Trust, any secured obligation, Beneficiary to be subject to NRS
106.380(2), 106.380(3) or 106.400 shall be in default hereunder.
Section 8.2 Remedies. At any time after an Event of Default, subject to
any restrictions contained in any Intercreditor Agreement Beneficiary may:
8.2.1 In person, by agent or by a receiver, and without regard
to the adequacy of security, the solvency of Trustor or any other matter, (i)
enter upon and take
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possession of the Property, or any part thereof, in its own name or in the name
of Trustee, (ii) inspect the Property for the purpose of determining the
existence, location, nature and magnitude of any past or present release of
Hazardous Materials into, onto, beneath or from the Property, (iii) negotiate
with governmental authorities with respect to compliance with Environmental
Requirements and remedial measures, (iv) take any action necessary to ensure
compliance with Environmental Requirements, including, but not limited to,
spending Rents in connection with any cleanup, remediation or other response
action with respect to Hazardous Materials or (v) xxx for or otherwise collect
the Rents, issues and profits thereof and apply the same, less costs and
expenses of operation and collection, including reasonable attorneys fees
actually incurred, to the Secured Obligations, all in such order as Beneficiary
may determine. The entering upon and taking possession of said Property, the
collection of such Rents, issues and profits and the application thereof as
aforesaid shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice, or deprive Beneficiary of the
benefits of any indemnity set forth herein;
8.2.2 Commence an action to foreclose this Deed of Trust in the
manner provided by Applicable Laws for the foreclosure of mortgages or deeds of
trust of real property;
8.2.3 Seek a judgment that Trustor has breached its covenants,
representations and/or warranties set forth in this Deed of Trust or any other
Loan Document regarding Environmental Requirements and/or Hazardous Materials,
by commencing, maintaining and concluding, and enforcing a judgment arising
from, an action for breach of contract, without regard to whether Beneficiary
has commenced an action to foreclose this Deed of Trust, and to seek injunctive
or other appropriate equitable relief and/or the recovery of any and all
Environmental Damages, it being conclusively presumed between Trustor and
Beneficiary that any reasonable costs advanced or expenses actually incurred by
Beneficiary relating to the cleanup, remediation or other response action with
respect to the Property were made or incurred by Beneficiary in good faith;
8.2.4 Deliver to Trustee a written declaration of default and
demand for sale, and a written notice of default and election to cause the
Property to be sold, which notice Trustee or Beneficiary shall cause to be duly
filed for record;
8.2.5 In accordance with NRS 40.512, Beneficiary may waive its
lien against any parcel of the Property or portion thereof or all or any portion
of the Fixtures or Personalty attached to the Property, to the extent such
property is determined to be environmentally impaired, and to exercise any and
all rights and remedies of an unsecured creditor against Trustor and all of
Trustor's assets for the recovery of any deficiency, including, but not limited
to, seeking an attachment order under NRS Chapter 31. No such waiver shall be
final or binding on Beneficiary unless and until a final money judgment is
obtained against Trustor. As between Beneficiary and Trustor, Trustor shall have
the burden of proving that any "release" (as defined in NRS 40.505) or
threatened release was not knowingly or negligently caused or contributed to, or
knowingly or willfully permitted or acquiesced to by Trustor or any related
party (or any affiliate or agent of Trustor or any related party) and that
Trustor made
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written disclosure of the release to Beneficiary or that Beneficiary otherwise
obtained actual knowledge thereof. Trustor's obligations hereunder shall survive
the foreclosure, deed in lieu of foreclosure, release, reconveyance or any other
transfer of the Property or this Deed of Trust. For the purposes of any action
brought under this Section 8.2.5, Trustor hereby waives the defense of laches
and any applicable statute of limitations. Trustor acknowledges and agrees that
notwithstanding anything to the contrary, express or implied, in this Deed of
Trust or in any of the other Loan Documents (including, without limitation, any
nonrecourse or exculpatory language, if any), Trustor shall be personally liable
for any recovery described in this Section 8.2.5 and such liability shall not be
limited to the amount of the Secured Obligations;
8.2.6 With respect to any Personalty, proceed as to both the
real and personal property in accordance with Beneficiary's rights and remedies
in respect of the Property, or proceed to sell said Personalty separately and
without regard to the Property in accordance with Beneficiary's rights and
remedies; provided that Lender shall first apply for and receive all required
approvals of any Gaming Authority having jurisdiction over the sale or
disposition of Gaming Equipment prior to the sale or disposition thereof; and/or
8.2.7 Pursue any and all other remedies it may have, at law or
in equity, or under any other document or instrument, except as otherwise
provided in the Loan Agreement.
Section 8.3 Power of Sale. Should Beneficiary elect to foreclose by
exercise of the power of sale herein contained, Beneficiary shall notify Trustee
and shall deposit with Trustee this Deed of Trust and such receipts and evidence
of expenditures made and secured hereby as Trustee may require.
8.3.1 Upon receipt of such notice from Beneficiary, Trustee
shall cause to be recorded, published and delivered to Trustor notices of
default and sale to be given in accordance with the provisions of Applicable
Laws, including NRS Chapter 107. Trustee shall, without demand on Trustor, after
lapse of such time as may then be required by Applicable Laws and after
recordation of such notice of default and after notice of sale having been given
as required by law, sell the Trust Estate at the time and place of sale fixed by
it in said notice of sale, either as a whole, or in separate lots or parcels or
items as Trustee shall deem expedient and in such order as it may determine, at
public auction to the highest bidder for cash in lawful money of the United
States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property
so sold, but without any covenant or warranty, express or implied. The recitals
in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof any Person, including, without limitation, Trustor or
Beneficiary, may purchase at such sale and Trustor hereby covenants to warrant
and defend the title of such purchaser or purchasers against the claims of all
Persons claiming by, through or under Trustor. To the maximum extent allowed by
Applicable Laws, Beneficiary, if it is the purchaser, may apply the amount of
the Secured Obligations then due and payable toward payment of the purchase
price. To the maximum extent permitted by Applicable
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Laws, Trustor hereby waives its right, if any, to require that the Property be
sold as separate tracts or units in the event of foreclosure.
8.3.2 Trustee, upon such sale, shall make (without any covenant
or warranty, express or implied), execute and, after due payment made, deliver
to purchaser or purchasers, or his or their heirs or assigns, a deed or deeds,
or other record or records of interest, as the case may be, in and to the
Property so sold that shall convey to the purchaser all the title and interest
of Trustor in the Property (or the portion thereof sold), and after deducting
all costs, fees and expenses of Trustee and of this Deed of Trust, including
costs of evidence of title in connection with sale, shall apply the proceeds of
sale to payment of (i) all sums expended under the terms hereof, not then
repaid, with accrued interest at the Default Rate and (ii) all other sums then
secured hereby and the remainder, if any, to the Person or Persons legally
entitled thereto.
8.3.3 Trustee may postpone sale of all or any portion of the
Trust Estate by public announcement at such time and place of sale, or as
otherwise permitted by Applicable Laws, and from time to time thereafter may
postpone such sale by public announcement at the time fixed by the preceding
postponement or subsequently noticed sale, and without further notice make such
sale at the time fixed by the last postponement, or may, in its discretion, give
a new notice of sale. Beneficiary may rescind any notice of default at any time
before Trustee's sale by executing a notice of rescission and recording the
same. The recordation of such notice of rescission shall constitute a
cancellation of any prior declaration of default and demand for sale. The
exercise by Beneficiary of the right of rescission shall not constitute a waiver
of any default then existing or subsequently occurring, or impair the right of
Beneficiary to execute other declarations of default and demand for sale, or
notices of default and of election to cause the Property to be sold nor
otherwise affect the Loan Documents or this Deed of Trust, or any of the rights,
obligations or remedies of Beneficiary or Trustee hereunder.
8.3.4 Beneficiary and Trustee acknowledge, understand and agree
that, to the extent the prior approval of the Gaming Authorities of the State of
Nevada is required pursuant to applicable law for the exercise, operation and
effectiveness of any remedy hereunder or under any other Loan Document, or the
taking of any action that may be taken by Beneficiary or Trustee hereunder or
under any other Loan Document, including without limitation the taking of
possession and disposition of collateral consisting of gaming devices, cashless
wagering systems and associated equipment (as those terms are defined in Nevada
Revised Statutes 463.0155, 463.014 and 463.0136), such remedy or action shall be
subject to such prior approval of the gaming authorities of the State of Nevada
and the Beneficiary or Trustee may be subject to being called forward for
licensing or a finding of suitability. All rights, remedies and powers provided
in this Deed of Trust may be exercised only to the extent that the exercise
thereof does not violate any provision of Applicable Gaming Laws, and all
provisions of this Deed of Trust are intended to be subject to all mandatory
provisions of the Applicable Gaming Laws, which may be controlling.
Section 8.4 Proof of Default. In the event of a sale of the Property, or
any part thereof, and the execution of a deed or deeds therefor, the recital
therein of default, and of
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recording notice of breach and election to sell, and of the elapsing of the
required time (if any) between the foregoing recording and the following notice,
and of the giving of notice of sale, and of a demand by Beneficiary, or its
successors or assigns, that such sale should be made, shall be conclusive proof
of such default, recording, election, elapsing of time, and of the due giving of
such notice, and that the sale was regularly and validly made on due and proper
demand by Beneficiary, its successors or assigns; and any such deed or deeds
with such recitals therein shall be effectual and conclusive against Trustor,
its successors and assigns, and all other Persons and the receipt for the
purchase money recited or contained in any deed executed to the purchaser as
aforesaid shall be sufficient discharge to such purchaser from all obligations
to see to the proper application of the purchase money.
Section 8.5 Protection of Security. If an Event of Default shall have
occurred and be continuing, then upon at least 15 days prior written notice to
Trustor and without releasing Trustor from any obligations or defaults
hereunder, Beneficiary or Trustee shall have the right, but not the obligation,
to: (i) make payment or otherwise perform such obligations of Trustor upon which
such Event of Default is based in such manner and to such extent as either may
reasonably deem necessary to protect the security hereof, Beneficiary and
Trustee being authorized to enter upon the Property for such purpose; (ii)
appear in and defend any action or proceeding purporting to affect, in any
manner whatsoever, the Secured Obligations, the security hereof or the rights or
powers of Beneficiary or Trustee; (iii) pay, purchase or compromise any
encumbrance, charge or lien (other than Permitted Liens); (iv) advance any and
all costs and expenses reasonably necessary to cure or pay Environmental Damages
or otherwise to comply Environmental Requirements; and (v) in exercising any
such powers, pay necessary expenses, employ counsel and pay attorneys fees.
Trustor hereby agrees to repay with thirty (30) days after receipt of written
demand all reasonable sums actually expended Trustee or Beneficiary pursuant to
this Section 8.5. with interest at the Default Rate from the date of expenditure
by Beneficiary, and such sums, with interest, shall be secured hereby.
Section 8.6 Receiver. If an Event of Default shall have occurred and be
continuing, Beneficiary, as a matter of strict right and without regard to the
then value of the Property, shall have the right to apply to any court having
jurisdiction to appoint a Receiver or Receivers of the Property. Any such
Receiver or Receivers shall have all the powers and duties of receivers under
Applicable Laws in like or similar cases and all the powers and duties of
Beneficiary in case of entry as provided in this Deed of Trust, and shall
continue as such and exercise all such powers until the date of confirmation of
sale, unless such receivership is sooner terminated.
Section 8.7 Curing of Defaults.
8.7.1 If Trustor shall at any time fail to perform or comply
with any of the terms, covenants and conditions required on Trustor's part to be
performed and complied with under this Deed of Trust or any other Loan Document
relating to the Trust Estate (after the lapse of any cure period provided
therein), then Beneficiary shall have the right, but not the obligation, without
waiving or releasing any of the Secured Obligations, to:
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8.7.1.1 make any payments thereunder payable by Trustor and take
out, pay for and maintain any of the insurance policies provided for therein,
and/or
8.7.1.2 after the expiration of any applicable grace period and
subject to Trustor's rights to contest certain obligations specifically granted
hereby, perform any such other acts thereunder on the part of Trustor to be
performed and enter upon the Property and incur reasonable attorneys fees and
expenses for such purpose.
8.7.2 The making by Beneficiary of such payment out of
Beneficiary's own funds shall not however, be deemed to cure such default by
Trustor, and the same shall not be so cured unless and until Trustor shall have
reimbursed Beneficiary within the applicable cure period for such payment
including interest at the Default Rate from the date of such expenditure. All
sums so paid and all reasonable costs and expenses actually incurred and paid by
Beneficiary in connection with the performance of any such act, together with
interest on unpaid balances thereof at the Default Rate from the respective
dates of Beneficiary's making of each such payment shall be secured by the lien
of this Deed of Trust prior to any right title or interest in or claim upon the
Property attaching or accruing subsequent to the lien of this Deed of Trust and
shall be payable by, Trustor to Beneficiary within thirty (30) days after
receipt of written demand.
Section 8.8 Remedies Cumulative. All remedies of Beneficiary provided
for herein are cumulative and shall be in addition to any and all other rights
and remedies provided in the other Loan Documents or provided by Applicable Law,
including any banker's lien and right of offset. The exercise of any right or
remedy by Beneficiary hereunder shall not in any way constitute a cure or waiver
of default hereunder or under the Loan Documents, or invalidate any act done
pursuant to any notice of default, or prejudice Beneficiary in the exercise of
any of its rights hereunder or under the Loan Documents unless, in the exercise
of said rights, all Secured Obligations are fully discharged.
Section 8.9 Marshaling. To the extent permitted by Applicable Laws,
Trustor waives all rights, legal and equitable, it may now or hereafter have to
require marshaling of assets or to require foreclosure sales of assets in a
particular order, including any rights provided by NRS 100.040 and 100.050. Each
successor and assign of Trustor, including any holder of a lien or security
interest subordinate to this Deed of Trust, by acceptance of its interest or
lien or security interest agrees that it shall be bound by the above waiver, as
if it had given the waiver itself.
Section 8.10 Adoption of Covenants. Where not inconsistent with the
above, the following covenants, Nos. 1; 2 (full replacement value); 3; 4
(Default Rate under the Loan Agreement); 5; 6; 7 ( a reasonable percentage); 8
and 9 of NRS Section 107.030 are hereby adopted and made a part of this Deed of
Trust.
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ARTICLE 9.
SECURITY AGREEMENT AND FIXTURE FILING
Section 9.1 Grant of Security Interest. To secure the payment and
performance of the Secured Obligations as and when due, Trustor (as debtor)
hereby grants, conveys, pledges, assigns and transfers to Beneficiary (as
secured party), as agent and representative, security interests (collectively,
the "Security Interest") in, all right, title, claim, estate and interest in and
to all Personalty and Fixtures, whether now owned and existing or hereafter
acquired or arising, and wherever located, including, without limitation, the
following, but expressly excluding in each case any Excluded Assets:
9.1.1 Any and all "chattel paper" as such term is defined in
Section 9105(b) of the UCC (the "Chattel Paper");
9.1.2 Any and all "accounts" as such term is defined in Section
9106 of the UCC (the "Accounts");
9.1.3 Any and all rights to payment for goods sold or leased or
services rendered, whether or not earned by performance and all rights in
respect of the Account Debtor, including without limitation all such rights
constituting or evidenced by any Account, Chattel Paper or Instrument (as
defined in Section 9.1.14 hereof), together with (a) any collateral assigned,
hypothecated or held to secure any of the foregoing and the rights under any
security agreement granting a security interest in such collateral, (b) all
goods, the sale of which gave rise to any of the foregoing, including, without
limitation, all rights in any returned or repossessed goods and unpaid seller's
rights, (c) all guarantees, endorsements and indemnifications on, or of, any of
the foregoing and (d) all powers of attorney for the execution of any evidence
of indebtedness or security or other writing in connection therewith Any and all
negotiable instruments, promissory notes, acceptances, drafts, checks,
certificates of deposit and other writings that evidence a right to the payment
of money by any other Person ("Receivables").
9.1.4 Any and (a) all original copies of all documents,
instruments or other writings evidencing the Receivables, (b) all books,
correspondence, credit or other files, records, ledger sheets or cards,
invoices, and other papers relating to Receivables, including without limitation
all tapes, cards, computer tapes, computer discs, computer runs, record keeping
systems and other papers and documents relating to the Receivables, whether in
the possession or under the control of any Trustor or any computer bureau or
agent from time to time acting for any Trustor or otherwise and (c) all credit
information, reports and memoranda relating thereto ("Receivables Records");
9.1.5 Any and all rights to payment:
9.1.5.1 to the extent not included in Accounts, Receivables or
Chattel Paper, receivables from any credit card company (such as Visa,
MasterCard, American
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Express and Diner's Club), whether arising out of or relating to the sale of
lodging, goods and services by Trustor or otherwise; and
9.1.5.2 of money not listed above and any and all
rights, titles, interests, securities, liens and guaranties evidencing,
securing, guaranteeing payment of or in any way relating to any Receivables;
9.1.6 Any and all "inventory" as such term is defined in
Section 9109(4) of the UCC, including without limitation and in any event, all
goods (whether such goods are in the possession of Trustor or a lessee, bailee
or other Person for sale, lease, storage, transit, processing, use or otherwise
and whether consisting of whole goods, spare parts, components, supplies,
materials or consigned or returned or repossessed goods) which are held for sale
or lease or are to be furnished (or which have been furnished) under any
contract of service or which are raw materials or work in progress or materials
used or consumed in any Trustor's business ("Inventory");
9.1.7 Any and all "equipment" as such term is defined in
Section 9109(2) of the UCC, including, but not limited to, Gaming Equipment:
9.1.7.1 machinery, machine tools, manufacturing
equipment, data processing equipment, computers, office equipment, furniture,
appliances, rolling stock, motors, pumps, controls, tools, parts, works of art,
furnishings and trade fixtures, all athletic equipment and supplies and all
molds, dies, drawings, blueprints, reports, catalogs and computer programs
related to any of the above;
9.1.7.2 ships, boats, barges and vessels (whether under
construction or completed) and any and all masts, bowsprits, boilers, engines,
sails, fittings, anchors, cables, chains, riggings, tackle, apparel, capstans,
outfits, gears, appliances, fittings and spare and replacement parts and other
appurtenances, accessories and additions, improvements and replacements thereto,
whether on board or not on board, in or to any ship, boat, barge or vessel;
9.1.7.3 slot machines, electronic gaming devices and
related equipment, crap tables, blackjack tables, roulette tables, baccarat
tables, keno apparatus, cards, dice, gaming chips and plaques, tokens, chip
racks, dealing shoes, dice cups, dice sticks, layouts, paddles, roulette balls
and other supplies and items used in connection with gaming operations; and
9.1.7.4 stones, wood, steel and other materials used or
to be used in the building, construction, repair, renovation, refurbishment or
otherwise with respect to improvements or ships, boats, barges or vessels.
9.1.8 Any and all "fixtures" as such term is defined in
Section 9313 of the UCC, including without limitation, machinery, equipment or
appliances for generating, storing or distributing air, water, heat electricity,
light fuel or refrigeration, for ventilating or
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sanitary purposes, elevators, safes, laundry, kitchen and athletic equipment,
trade fixtures, and telephone, television and other communications equipment
(the "Fixtures");
9.1.9 Any and all "documents" as such term is defined in
Section 9105(f) of the UCC (the "Documents");
9.1.10 Any and all "general intangibles" as such term is
defined in Section 9106 of the UCC (together with any property listed under
Section 9.1.4 relating thereto, the "General Intangibles"), including, without
limitation and in any event, rights to the following: payment of money,
Trademark Collateral (as defined in the Trademark Security Agreement), Copyright
Collateral (as defined in the Copyright Security Agreement), patents, patent
licenses, and Contracts (as defined in Section 9.1.16 hereof), licenses
(including all Casino Licenses) and franchises (except, in the case of licenses
and franchises if, and for so long as, the agreement in respect of such license
or franchise prohibits by its terms any assignment or grant of a security
interest therein without the consent of the other party thereto, would not give
any other party to such franchise or license the right to terminate its
obligations thereunder), limited and general partnership interests and joint
venture interests, federal income tax refunds, trade names, distributions on
certificated securities (as defined in Section 8102(1)(a) of the UCC, and
uncertificated securities (as defined in Section 8102(1)(b) of the UCC, computer
programs and other computer software, inventions, designs, trade secrets,
goodwill, proprietary rights, customer lists, Player Tracking Systems, supplier
contracts, sale orders, correspondence, advertising materials, payments due in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of any property, reversion, any interests in pension and
profit-sharing plans and reversionary, beneficial and residual interests in
trusts, credits with and other claims against any Person, together with any
collateral for any of the foregoing and the rights under any security agreement
granting a security interest in such collateral.
9.1.11 The Designated Account established and maintained
pursuant to Section 2.9 of the Loan Agreement ("Designated Account").
9.1.12 Any and all (i) shares of capital stock of any
Subsidiary (as defined in Section 1.1 of the Loan Agreement) of Trustor, from
time to time owned by Trustor or options or rights to acquire any such shares or
interests now or hereafter owned by Trustor, (ii) Distributions (as defined
below) on Pledged Shares (as defined in the Guarantor Stock Pledge Agreement),
owned by Trustor or in which Trustor has an interest ("Pledged Securities") (as
constituted immediately prior to such Distribution) constituting securities,
whether debt or equity securities or otherwise, (iii) other or additional stock,
notes, securities or property paid or distributed in respect of Pledged
Securities (as constituted immediately prior to such payment or distribution) by
way of stock-split, spin-off, splitup, reclassification, combination of shares
or similar rearrangement and (iv) other or additional stock, notes, securities
or property (including cash) that may be paid in respect of Pledged Securities
(as constituted immediately prior to such payment) by reason of any
consolidation, merger, exchange of stock, conveyance of assets, liquidation,
bankruptcy or similar corporate reorganization or other disposition of Pledged
Securities ("Pledged Securities").
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9.1.13 Any and all dividends, distributions, payments of
interest and principal and other amounts (whether consisting of cash,
securities, personalty or other property) from time to time received, receivable
or otherwise distributed in respect of or in exchange or substitution for any of
the Pledged Securities ("Distributions");
9.1.14 Any and all "instruments" as such term is defined in
Section 9105(1)(i) of the UCC ("Instruments");
9.1.15 [Intentionally Omitted].
9.1.16 Any and all contracts between Trustor and one or more
additional parties ("Contracts");
9.1.17 Any and all interest rate or currency protection or
hedging arrangements, including without limitation, caps, collars, floors,
forwards and any other similar or dissimilar interest rate or currency exchange
agreements or other interest rate or currency hedging arrangements ("Hedging
Agreements");
9.1.18 Any and all motor vehicles, tractors, trailers and
other like property, if title thereto is governed by a certificate of title
ownership ("Motor Vehicles");
9.1.19 Any and all books, records, computer software, computer
printouts, customer lists, blueprints, technical specifications, manuals, and
similar items which relate to any Personalty or Fixtures other than such items
obtained under license or franchise agreements that prohibit assignment or
disclosure of such items ("Books and Records");
9.1.20 Any and all accessions, appurtenances, components,
repairs, repair parts, spare parts, renewals, improvements, replacements,
substitutions and additions to, of or with respect to any of the foregoing;
9.1.21 Any and all rights, remedies, powers and privileges of
Trustor with respect to any of the foregoing; and
9.1.22 Any and all proceeds and products of any of the
foregoing, whether now held and existing or hereafter acquired or arising,
including all rents, issues, income and profits of or from any of the foregoing
(collectively, the "Proceeds "). "Proceeds" shall include (i) whatever is now or
hereafter received by Trustor upon the sale, exchange, collection, other
disposition or operation of any item of Personalty, whether such proceeds
constitute accounts, general intangibles, instruments, securities, documents,
letters of credit, chattel paper, deposit accounts, money, goods or other
personal property, (ii) any amounts now or hereafter payable under any insurance
policy by reason of any loss of or damage to any Personalty or the business of
Trustor, (iii) all rights to payment and payments for hotel room occupancy (and
related reservations) and the sale of services or products in connection
therewith, (iv) the right to further transfer, including by pledge, mortgage,
license, assignment or sale, any of the foregoing,
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and (v) any items that are now or hereafter acquired by Trustor with any of the
foregoing; provided, however, that "Proceeds" shall not include Excluded Assets.
Section 9.2 Remedies, etc. This Deed of Trust constitutes a security
agreement with respect to the Personalty, in which Beneficiary is granted a
security interest hereunder, and Beneficiary shall have all of the rights and
remedies of a secured party under the UCC and the other Loan Documents as well
as all other rights and remedies available at law or in equity. Upon the
occurrence and during the continuance of any Event of Default hereunder,
Beneficiary shall have (i) the right to cause any of the Personalty which is
personal property to be sold at any one or more public or private sales as
permitted by Applicable Laws and apply the proceed thereof to the Secured
Obligations, (ii) the right to collect and apply to the Secured Obligations any
Personalty which is cash, notes receivable, other rights to payment or Chattel
Paper, and (iii) all other rights and remedies, whether at law, in equity, or by
statute as are available to secured creditors under Applicable Laws. Any such
disposition may be conducted by an employee or agent of Beneficiary or Trustee.
To the maximum extent permitted by Applicable Law, any Person, including either
or both of Trustor and Beneficiary, shall be eligible to purchase any part or
all of such Personalty at any such disposition. Beneficiary shall give Trustor
at least 10 days prior written notice of the time and place of any public sale
or other disposition of such Personalty or of the time of or after which any
private sale or any other intended disposition is to be made, and if such notice
is sent to Trustor in the manner provided for the mailing of notices herein, it
is hereby deemed such notice shall be and is commercially reasonable notice to
Trustor.
Section 9.3 Expenses. Reasonable expenses actually incurred of retaking,
holding, preparing for sale, selling or the like shall be borne by Trustor and
shall include Beneficiary's and Trustee's reasonable attorneys fees, charges and
disbursements (including, without limitation, any and all costs of appeal).
Section 9.4 Fixture Filing.
9.4.1 This Deed of Trust shall be effective as a Financing
Statement filed as a fixture filing from the date of the recording hereof in
accordance with NRS 104.9402. In connection therewith, the addresses of Trustor
as debtor ("Debtor") and Beneficiary as secured party ("Secured Party") are set
forth on Schedule 12.8. The address of Beneficiary, as the Secured Party, is
also the address from which information concerning the security interest may be
obtained by any interested party.
9.4.1.1 The property subject to this fixture filing is
described in Sections 9.1.7 and 9.1.8.
9.4.1.2 Portions of the property subject to this fixture
filing as identified in Section 9.4.1.1 above are or are to become fixtures
related to the real estate described on EXHIBIT "A" to this Deed of Trust.
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9.4.1.3 Secured Party is: Foothill Capital Corporation,
a California corporation.
9.4.1.4 Debtor is: Fitzgeralds Reno, Inc., a Nevada
corporation.
9.4.1.5 The record owner or lessee of the Property is:
Fitzgeralds Reno, Inc., a Nevada corporation.
9.4.2 In the event Trustor shall fail, beyond any applicable
notice and grace periods, to make any payment or perform any covenant related to
any security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within 15 days after notice to Trustor or if Beneficiary's
immediate action is reasonably necessary to protect the lien hereof or its
security for the Secured Obligations, at any time without prior notice to
Trustor, pay the amount secured by such security interest, and the amount so
paid shall be (i) secured by this Deed of Trust and shall be a lien on the
Property enjoying the same priorities vis-a-vis the estates and interests
encumbered hereby as this Deed of Trust, (ii) added to the amount of the Secured
Obligations, and (iii) payable within 30 days after receipt of written demand
with interest at the Default Rate from the time of such payment; or Beneficiary
shall have the privilege of acquiring by assignment from the holder of such
security interest any and all contract rights, accounts receivable, chattel
paper, negotiable or non-negotiable instruments and other evidence of Trustor's
indebtedness secured by such fixtures, and, upon acquiring such interest by
assignment, shall have the right to enforce the security interest as assignee
thereof, in accordance with the terms and provisions of the UCC, as amended or
supplemented, and in accordance with other Applicable Laws.
ARTICLE 10.
ASSIGNMENT OF RENTS
Section 10.1 Assignment of Rents. Subject to Section 10.2 and to
Applicable Gaming Laws, as of the execution of this Deed of Trust, Trustor
hereby absolutely and unconditionally assigns and transfers to Beneficiary all
of the Rents, whether now due, past due or to become due, and hereby gives to
and confers upon Beneficiary the right, power and authority to collect such
Rents and apply the same to the Secured Obligations secured hereby. Trustor
irrevocably appoints Beneficiary, as its true and lawful attorney, at the option
of Beneficiary at any time while an Event of Default exists, to demand, receive
and enforce payment to give receipts, releases and satisfactions, and to xxx,
either in the name of Trustor or in the name of Beneficiary, for all such Rents
and apply the same to the Secured Obligations secured hereby. It is hereby
recognized that the power of attorney herein granted is coupled with an interest
and shall not be revocable. It is understood and agreed that neither the
foregoing assignment of Rents to Beneficiary nor the exercise by Beneficiary or
any of its rights or remedies under this Deed of Trust shall be deemed to make
Beneficiary a "mortgagee-in-possession" or otherwise responsible or liable in
any manner with respect to the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof, unless and until Beneficiary, in person
or by its own agent assumes actual possession thereof, nor shall
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appointment of a Receiver for the Property by any court at the request of
Beneficiary or by agreement with Trustor or the entering into possession of the
Property or any part thereof by such Receiver be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise responsible or liable in any manner with
respect to the Property or the use, occupancy, enjoyment or operation of all or
any portion thereof.
Section 10.2 Collection of Rents. Notwithstanding anything to the
contrary contained herein, so long as no Event of Default with respect to the
Loan Agreement shall occur and be continuing, Trustor shall have a license,
revocable upon the occurrence and during the continuance of an Event of Default
to collect all Rents from the Property and to retain, use and enjoy the same and
to otherwise exercise all rights with respect thereto, subject to the terms
hereof. Upon the occurrence and during the continuance of an Event of Default
the license hereinabove granted to Trustor shall, without the requirement of the
giving of notice or taking of any action by any party, be revoked, and
Beneficiary shall have the complete right and authority to exercise and enforce
any and all of its rights and remedies provided herein or by Applicable Laws.
ARTICLE 11.
ENVIRONMENTAL MATTERS
Section 11.1 Representations and Warranties. In the ordinary course of
business, Trustor conducts a periodic review of the effect of Environmental Laws
on its business, operations and properties in the course of which it identifies
and evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for cleanup, closure of
properties or compliance with Environmental Laws or any Permit any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, Trustor has reasonably concluded that
such associated costs and liabilities could not reasonably be expected, singly
or in the aggregate, to cause a Material Adverse Change (as defined in Loan
Agreement).
11.1.1 Trustor (i) has obtained all Permits that are required
with respect to the operation of its business, property and assets under the
Environmental Laws and is in compliance with all terms and conditions of such
required Permits, and (ii) is in compliance with all Environmental Laws
(including, without limitation, compliance with standards, schedules and
timetables therein);
11.1.2 No portion of the Trust Estate is listed or proposed
for listing on the National Priorities List or the Comprehensive Environmental
Response, Compensation, and Liability Information System, both promulgated under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), or on any other state or local list established
pursuant to any Environmental Law, and Trustor has not received any notification
of potential or actual liability or request for information under CERCLA or any
comparable state or local law;
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11.1.3 No underground storage tank or other underground
storage receptacle, or related piping, is located on the Land in violation of
any Environmental Law;
11.1.4 There have been no releases (any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping, on-site or, to the
knowledge of the Trustor after due inquiry, off-site) of Hazardous Materials by
Trustor or any predecessor in interest or any person or entity whose liability
for any release of Hazardous Materials, Trustor has retained or assumed either
contractually or by operation of law at, on, under, from or into any facility or
real property owned, operated, leased, managed or controlled by any such person;
11.1.5 Neither Trustor nor any person or entity whose
liability Trustor has retained or assumed either contractually or by operation
of law has any liability, absolute or contingent under any Environmental Law,
and there is no proceeding pending or threatened against any of them under any
Environmental Law; and
11.1.6 There are no events, activities, practices, incidents
or actions or conditions, circumstances or plans that may interfere with or
prevent compliance by Trustor with any Environmental Law, or that may give rise
to any liability under any Environmental Laws.
11.1.7 The above representations and warranties contained in
this Section 11.1 shall survive the termination, release and/or reconveyance of
this Deed of Trust and the discharge of Trustor's other obligations hereunder.
Section 11.2 Environmental Covenants. Trustor shall at all times comply
with the following requirements:
11.2.1 Trustor shall not cause or permit any material amount
of Hazardous Material to be brought upon, treated, kept, stored, disposed of,
discharged, released, produced, manufactured, generated, refined or used upon,
within or, beneath the Property or any portion thereof by Trustor, its agents,
employees, contractors, or invitees, or any other Person, except in compliance
with all Environmental Requirements and only in the course of such Person's
legitimate business operations at the Property (which shall not include any
business primarily for treatment, storage, disposal, discharge, release,
production, manufacture, generation, refinement or use of Hazardous Materials).
11.2.2 Trustor shall not cause or permit the existence or the
commission by Trustor, its agents, employees, contractors or invitees, or by any
other Person of a material violation of any Environmental Requirements upon,
within or beneath the Property or any portion thereof.
11.2.3 Trustor shall not dispose of, discharge or release or
cause or permit the disposal, discharge or release of any material amount of
Hazardous Materials from the Property into any Public Waters in material
violation of any Environmental Requirements.
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11.2.4 Trustor shall not create or suffer to exist with
respect to the Property or permit any of its agents to create or suffer to exist
any environmental lien, security interest or other charge or encumbrance of any
kind (other than a Permitted Lien), including, without limitation, any lien
imposed pursuant to Section 107(f) of the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. Section 9607(l)) or any similar state
statute.
11.2.5 Trustor shall, at its sole cost and expense, promptly
take any and all actions required by any federal, state or local governmental
agency or political subdivision or reasonably necessary (as hereinafter
provided) to mitigate Environmental Damages, which requirements or necessity
arise from the presence upon, about or beneath the Property, of a material
amount of Hazardous Material or a material violation of Environmental
Requirements or the disposal, discharge or release of a material amount of
Hazardous Materials from the Property into the Public Waters. Such actions shall
include, but not be limited to, the investigation of the environmental condition
of the Property, the preparation of any feasibility studies, reports or remedial
plans, and the performance of any cleanup, remediation, containment, operation,
maintenance, monitoring or restoration work, whether on or off of the Property
(provided that Trustor shall be obligated to take actions off of the Property
only if Trustor shall have the legal right to do so and shall be expressly
required to do so by Environmental Requirements). Trustor shall take all actions
as are reasonably necessary to restore the Property or the Public Waters to
substantiality the condition existing prior to the introduction of Hazardous
Material by Trustor upon, about or beneath the Property, notwithstanding any
lesser standard of remediation allowable under Applicable Laws or governmental
policies, but recognizing the economic impracticability of remediating to a
level where Hazardous Materials are no longer detectable. Trustor shall proceed
continuously and diligently with such investigatory and remedial actions,
provided that in all cases such actions shall be in accordance with Applicable
Laws. Any such actions shall be performed in a good, safe and workmanlike manner
and shall minimize any impact on the business conducted at the Property. Trustor
shall pay all costs in connection with such investigatory and remedial
activities, including, but not limited to, all power and utility costs, and any
and all taxes or fees that may be applicable to such activities. Trustor shall
promptly provide to Beneficiary copies of testing results and reports that are
generated in connection with the above activities. Promptly upon completion of
such investigation and remediation, Trustor shall permanently seal or cap all
monitoring xxxxx and test holes to industrial standards in compliance with
Applicable Laws and regulations, remove all associated equipment, and restore
the Property to the extent reasonably possible, which shall include, without
limitation, the repair of any surface damage, including paving, caused by such
investigation or remediation hereunder.
11.2.6 If Trustor shall become aware of or receive notice or
other communication concerning any actual, alleged, suspected or threatened
violation of Environmental Requirements, or liability of Trustor for
Environmental Damages in connection with the Property or past or present
activities of any Person thereon, including, but not limited to, notice or other
communication concerning any actual or threatened investigation, inquiry,
lawsuit, claim, citation, directive, summons, proceedings, complaint, notice,
order, writ or
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injunction, relating to same, then Trustor shall deliver to Beneficiary, within
15 days of the receipt of such notice or communication by Trustor, a written
description of said violation, liability, or actual or threatened event or
condition, together with copies of any documents evidencing same. Receipt of
such notice shall not be deemed to create any obligation on the part of
Beneficiary to defend or otherwise respond to any such notification.
11.2.7 Trustor agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless Beneficiary, its successors and assigns, and
its directors, officers, shareholders, employees, agents, contractors,
subcontractors, experts, licensees, affiliates, lessees, trustees, and invitees
(collectively, the "Indemnitees") from and against any and all Environmental
Damages arising from the discharge, disposal or release of Hazardous Materials
from the Property into the Public Waters or from the presence of Hazardous
Materials upon, about or beneath the Property or migrating to or from the
Property, or arising in any manner whatsoever out of the violation of any
Environmental Requirements pertaining to the Property and the activities
thereon, whether foreseeable or unforeseeable, and regardless of when such
Environmental Damages occurred, except to the extent directly caused by conduct
(other than inaction) on the part of such Indemnitee with respect to the
Property or any such Indemnitee's grossly negligent or willful inaction or other
conduct. The indemnity obligations of Trustor contained in this Section 11.2.7
shall survive the termination, release and/or reconveyance of this Deed of Trust
and the discharge of Trustor's other obligations hereunder.
11.2.8 Except for the last sentence of Section 4.5, and except
for Sections 4.6, 4.7, 4.15 and 8.5, the other covenants of this Deed of Trust
shall not apply to the subject matter of this Article 11.
11.2.9 In accordance with, and subject to limitations of, NRS
40.508 and NRS 40.509, Beneficiary may seek a judgment that Trustor has breached
its covenants, representations and/or warranties with respect to the
environmental matters contained in Sections 11.2.1 through 11.2.9, inclusive, of
this Deed of Trust (the "Environmental Provisions"), and may commence and
maintain an action or actions in any court of competent jurisdiction for
enforcement of the Environmental Provisions and/or recovery of any and all
costs, damages, expenses, fees, penalties, fines, judgments, indemnification
payments to third parties, and other out of pocket costs or expenses (including,
without limitation, court costs, reasonable consultants' fees and reasonable
attorney's fees whether incurred in litigation or not and whether before or
after judgment), incurred or advanced by Beneficiary pursuant to the
Environmental Provisions (collectively, the "Environmental Costs"). Trustor
acknowledges and agrees that notwithstanding any term or provision contained in
this Deed of Trust or in the other Loan Documents, Environmental Costs shall be
exceptions to any nonrecourse or exculpatory provisions, if any, and Trustor
shall be fully and personally liable for Environmental Costs. Such liability
shall not be limited to the original principal amount of the obligations secured
by this Deed of Trust. Trustor's obligations hereunder shall survive any
foreclosure, deed in lieu of foreclosure, release, reconveyance or any other
transaction with respect to the Property or this
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Deed of Trust. For the purposes of any action brought under this subsection
11.2.9, Trustor hereby waives the defense of any applicable statute of
limitations.
ARTICLE 12.
MISCELLANEOUS
Section 12.1 Beneficiary's Expenses, including Attorney's Fees.
Regardless of the occurrence of a Default or Event of Default, Trustor agrees to
pay to Beneficiary any and all advances, charges, costs and expenses, including
the reasonable fees and expenses of counsel and any experts or agents, that
Beneficiary may reasonable incur in connection with (i) the administration of
this Deed of Trust, including any amendment thereto or any workout or
restructuring, (ii) the creation, perfection or continuation of the lien of this
Deed of Trust or protection of its priority or the Trust Estate, including the
discharging of any prior or junior lien or adverse claim against the Trust
Estate or any part thereof that is not permitted hereby or by the Loan
Agreement, (iii) the custody, preservation or sale of, collection from, or other
realization upon, any of the Trust Estate, (iv) the exercise or enforcement of
any of the rights, powers or remedies of Beneficiary under this Deed of Trust or
under Applicable Laws (including attorneys fees and expenses incurred by
Beneficiary in connection with the operation, maintenance or foreclosure of the
lien of this Deed of Trust) or any bankruptcy proceeding or (v) the failure by
Trustor to perform or observe any of the provisions hereof. All such amounts and
all other amounts payable hereunder shall be payable on demand, together with
interest at the Default Rate.
Section 12.2 Indemnity
Trustor hereby agrees to indemnify and hold harmless the Indemnitees
against (A) any and all transfer taxes, documentary taxes, assessments or
charges made by any governmental authority by reason of the execution and
delivery of this Deed of Trust and the other Loan Documents, and (B) any and all
claims, actions, liabilities, costs and expenses of any kind or nature
whatsoever (including fees and disbursements of counsel) that may be imposed on,
incurred by, or asserted against any of them, in any way relating to or arising
out of this Deed of Trust or any action taken or omitted by them hereunder,
except to the extent that they resulted from the gross negligence or willful
misconduct of any such Indemnitee.
Section 12.3 Waivers; Modifications in Writing. No amendment of any
provision of this Deed of Trust (including a waiver thereof or consent relating
thereto) shall be effective unless the same shall be in writing and signed by
Beneficiary and Trustor. Any waiver or consent relating to any provision of this
Deed of Trust shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on Trustor in any case
shall entitle Trustor to any other or further notice or demand in similar
circumstances, except as otherwise provided herein or as required by law.
Section 12.4 Cumulative Remedies; Failure or Delay. The rights and
remedies provided for under this Deed of Trust are cumulative and are not
exclusive of any rights and remedies that may be available to Beneficiary under
Applicable Laws, the other Loan Documents or otherwise. No failure or delay on
the part of Beneficiary in the exercise of any
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power, right or remedy under this Deed of Trust shall impair such power, right
or remedy or shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude other or further exercise
of such or any other power, right or remedy.
12.4.1 Successors and Assigns. This Agreement shall be binding
upon and, subject to the next sentence, inure to the benefit of Trustor and
Beneficiary and their respective successors and assigns. Trustor shall not
assign. or transfer any of its rights or obligations hereunder without the prior
written consent of Beneficiary. The benefits of this Deed of Trust shall pass
automatically with any assignment of the Secured Obligations (or any portion
thereof), to the extent of such assignment.
Section 12.5 Independence of Covenants. All covenants under this Deed of
Trust shall each be given independent effect so that, if a particular action or
condition is not permitted by any such covenant the fact that it would be
permitted by another covenant or by an exception thereto shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists. All rights, remedies and powers in this Deed of Trust may be
exercised only to the extent that the exercise thereof does not violate any
provision of the Applicable Gaming Laws, and all the provisions of this Deed of
Trust are intended to be subject to all mandatory provisions of the Applicable
Gaming Laws which may be controlling.
Section 12.6 Change of Law. In the event of the passage, after the date
of this Deed of Trust of any law changing in any way the laws now in force for
the taxation of mortgages, deeds of trust or debts secured by mortgage or deed
of trust (other than laws imposing taxes on income), or the manner of the
collection of any such taxes, so as to affect adversely the rights of
Beneficiary under this Deed of Trust then an Event of Default shall be deemed to
have occurred under Section 6.1 of the Loan Agreement; provided, however, that
no Event of Default shall be deemed to have occurred (i) if Trustor, within
thirty (30) days after the passage of such law, shall assume the payment of any
tax or other charge so imposed upon Beneficiary for the period remaining until
discharge in full of the Secured Obligations; provided, however, that such
assumption is permitted by Applicable Laws, (ii) if the adverse effect upon
Beneficiary of such tax or other charge is not material, or (iii) if and so long
as Trustor, at its expense, shall contest the amount or validity or application
of any such tax or other charge by appropriate legal proceedings promptly
initiated and conducted in good faith and with due diligence; provided that (A)
neither the Property nor any substantial part thereof will be in danger of being
sold, forfeited, terminated, canceled, or lost as a result of such contest and
(B) except in the case of a tax or charge junior. to the lien of this Deed of
Trust, Trustor shall have posted such bond or furnished such other security as
may be required by law to release such tax or charge.
Section 12.7 No Waiver. No waiver by Beneficiary of any Default or
breach by Trustor hereunder shall be implied from any omission by Beneficiary to
take action on account of such Default if such Default persists or is repeated,
no express waiver shall affect any Default other than the Default in the waiver,
and such waiver shall be operative only for the time and to the extent therein
stated. Waivers of any covenant, term or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant term or
condition. The
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consent or approval by Beneficiary to or of any act by Trustor requiring further
consent or approval shall not be deemed to waive or render unnecessary the
consent or approval to or of any subsequent similar act.
Section 12.8 Notices. All notices and other communications under this
Deed of Trust shall be in writing and shall be personally delivered or sent by
prepaid courier, by overnight, registered or certified mail (postage prepaid) or
by prepaid telex, telecopy or telegram, and shall be deemed given when received
by the intended recipient thereof Unless otherwise specified in a notice given
in accordance with the foregoing provisions of this Section 12.8., notices and
other communications shall be given to the parties hereto at their respective
addresses (or to their respective telex or telecopier numbers) indicated in
Schedule 12.8 hereto.
Section 12.9 References to Foreclosure. References hereto to
"foreclosure" and related phrases shall be deemed references to the appropriate
procedure in connection with Trustee's private power of sale, any judicial
foreclosure proceeding, and any deed given in lieu of any such Trustee's sale or
judicial foreclosure.
Section 12.10 Joinder of Foreclosure Should Beneficiary hold any other
or additional security for the payment and performance of any Secured
Obligation, its sale or foreclosure, upon any default in such payment or
performance, in the sole discretion of Beneficiary, may be prior to, subsequent
to, or joined or otherwise contemporaneous with any sale or foreclosure
hereunder. Except as otherwise provided in the Loan Agreement, in addition to
the rights herein specifically conferred, Beneficiary, at any time and from time
to time, may exercise any right or remedy now or hereafter given by law to
beneficiaries under deeds of trust generally, or to the holders of any
obligations of the kind hereby secured.
Section 12.11 Rights and Secured Obligations of Beneficiary and Trustee.
At any time or from time to time, without liability therefor and without notice,
and without releasing or otherwise affecting the liability of any Person for
payment of any Secured Obligations, Beneficiary at its sole discretion and only
in writing may subordinate the liens or either of them, or charge hereof to the
extent not prohibited by the Loan Agreement. Beneficiary and Trustee shall,
however, promptly upon Trustor's request from time to time, join in the
following actions (including the execution and delivery of documents) as Trustor
determines are reasonably necessary for the development, use and operation of
the Trust Estate: (i) the making of any map or plat of the Property, (ii) the
granting, creating, amending and modifying of any customary easements,
covenants, conditions and restrictions with respect to the Property and (iii)
the application for and prosecution of any development building, use and similar
permits and land use and utility approvals and installations regarding the
Property; provided, however, that Beneficiary and Trustee shall not be required
to join in or take any such action (a) while an Event of Default exists, (b) to
the extent such action would impair the liens of this Deed of Trust or the first
priority thereof or (c) to the extent prohibited by the Loan Agreement. Any such
request shall be accompanied by an Officers Certificate (as defined in the Loan
Agreement). Upon written request of Beneficiary and surrender of this Deed of
Trust to Trustee for cancellation, and
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upon payment to Trustee of its reasonable fees and expenses actually incurred,
Trustee shall cancel and reconvey this Deed of Trust.
Section 12.12 Copies. Trustor will promptly give to Beneficiary copies
of all notices of material violations relating to the Property that Trustor
receives from any governmental authority.
Section 12.13 Subordination. At the option of Beneficiary, this Deed of
Trust shall become subject and subordinate in whole or in part (but not with
respect to priority of entitlement to any insurance proceeds, damages, awards,
or compensation resulting from damage to the Property or condemnation or
exercise of power of eminent domain), to any and all contracts of sale and/or
any and all leases of all or any part of the Property upon the execution by
Beneficiary and recording thereof in the official records of Washoe County,
Nevada of a unilateral declaration to that effect. Beneficiary may require the
issuance of such title insurance endorsements to the Title Policy, in connection
with any such subordination as Beneficiary, in its judgment, shall determine are
appropriate, and Trustor shall be obligated to pay any cost or expense incurred
in connection with the issuance thereof
Section 12.14 Personally Security Instruments. Trustor covenants and
agrees that if Beneficiary at any time holds additional security for any Secured
Obligations secured hereby, it may enforce the terms thereof or otherwise
realize upon the same, at its option, either before or concurrently herewith or
after a sale is made hereunder, and may apply the proceeds upon the Secured
Obligations without affecting the status or of waiving any right TO exhaust all
or any other security, including the security hereunder, and without waiving any
breach or Default or any right or power whether exercised hereunder or contained
herein or in any such other security.
Section 12.15 Suits to Protect Property. Trustor covenants and agrees to
appear in and defend any action or proceeding the consequence of which, if
successful, would be that the liens, or either of them, of this Deed of Trust
would not satisfy the requirements as to extent, perfection or priority set
forth in the Loan Agreement, and to pay all reasonable costs and expenses
actually incurred by Trustee and Beneficiary, including cost of evidence of
title and attorneys fees in a reasonable sum, in any such action or proceeding
in which Beneficiary and/or Trustee may appear or be made a party.
Section 12.16 Trustor Waiver of Rights. Trustor waives the benefit of
all laws now existing or that hereafter may be enacted providing for (i) any
appraisement before sale of any portion of the Trust Estate, and (ii) the
benefit of all laws that may be hereafter enacted in any way extending the time
for the enforcement of the Secured Obligations or creating or extending a period
of redemption from any sale made in collecting said debt. To the full extent
Trustor may do so, Trustor agrees that Trustor will not at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, valuation, stay, extension or redemption,
and Trustor, for Trustor, Trustor's heirs, devisees, representatives, successors
and assigns, and for any and all Persons ever claiming any interest in the Trust
Estate, to the extent permitted by law, hereby waives and releases all rights of
redemption, valuation,
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appraisement, stay of execution, and marshaling in the event of foreclosure of
the liens hereby created. If any law referred to in this Section 12.16 and now
in force, of which Trustor, Trustor's heirs, devisees, representatives,
successors and assigns or other Person might take advantage despite this Section
12.16, shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to preclude the application of this Section 12.16. To the
extent permitted by Applicable Laws, Trustor expressly waives and relinquishes
any and all rights and remedies which Trustor may have or be able to assert by
reason of the laws of the State of Nevada pertaining to the rights and remedies
of sureties.
Section 12.17 Charges for Statements. Trustor agrees to pay
Beneficiary's customary charge, to the maximum amount permitted by Applicable
Laws, for any statement regarding the Secured Obligations requested by Trustor
or in its behalf.
Section 12.18 Complete Agreement. This Deed of Trust, together with the
exhibits and schedules hereto, and the other Loan Documents, is intended by the
parties as a final expression of their agreement regarding the subject matter
hereof and is intended as a complete and exclusive statement of the terms and
conditions of such agreement.
Section 12.19 Payments Set Aside Notwithstanding anything to the
contrary herein contained, this Deed of Trust the Secured Obligations and the
lien and security interest of this Deed of Trust shall continue to be effective
or be reinstated, as the case may be, if at any time any payment or any part
thereof, of any or all of the Secured Obligations is rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be restored
or returned by Beneficiary in connection with any bankruptcy, reorganization or
similar proceeding involving Trustor, any other party liable with respect to the
Secured Obligations or otherwise, if the proceeds of the Trust Estate are
required to be returned by Beneficiary under any such circumstances; or if
Beneficiary reasonably elects to return any such payment or proceeds or any part
thereof in its discretion, all as though such payment had not been made or such
proceeds not been received. Without limiting the generality of the foregoing, if
prior to any such rescission, invalidation, declaration, restoration or return,
this Deed of Trust shall have been terminated, released and/or reconveyed and
the lien and security interest or any of the Trust Estate shall have been
released or terminated in connection with such termination, release and/or
reconveyance, this Deed of Trust and the lien and security interest and such
portion of the Trust Estate shall be reinstated in full force and effect and
such prior termination, release and/or reconveyance shall not diminish,
discharge or otherwise affect the obligations of Trustor in respect of the
amount of the affected payment or application of proceeds, the lien, the
security interest or such portion of the Trust Estate.
Section 12.20 Substitution. Beneficiary may at any time, without giving
notice to Trustor or the original or successor Trustee, and without regard to
the willingness or inability of any original or successor Trustee to execute
this trust, appoint another Person or succession of Persons to act as Trustee,
and such appointee in the execution of this trust shall have all the powers
vested-in and obligations imposed upon Trustee. Should Beneficiary be a
corporation or unincorporated association, then any officer thereof may make
such appointment.
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Section 12.21 Choice of Forum.
12.21.1 Subject to Section 12.21.2 and Section 12.21.3, all
actions or proceedings arising in connection with this Deed of Trust shall be
tried and litigated in state or Federal courts located in the County of Washoe,
State of Nevada, unless such actions or proceedings are required to be brought
in another court to obtain subject matter jurisdiction over the matter in
controversy. Trustor waives any right it may have to assert the doctrine of
forum non conveniens, to assert that it is not subject to the jurisdiction of
such courts or to object to venue to the extent any proceeding is brought in
accordance with this Section 12.21.1.
12.21.2 Nothing contained in this Section shall preclude
Beneficiary from bringing any action or proceeding arising out of or relating to
this Deed of Trust in any court not referred to in Section 12.21.1. Service of
process, sufficient for personal jurisdiction in any action against Trustor, may
be made by certified mail, return receipt requested, to its address indicated in
Section 12.8 hereof.
12.21.3 Notwithstanding Section 12.21.1 hereof, in the sole
and absolute discretion of beneficiary, all actions or proceedings relating to
the Collateral referred to in Article 9 hereof, other than Fixtures, shall be
tried and litigated in any California state court sitting in the County of Los
Angeles, State of California or any federal court sitting in the County of Los
Angeles, State of California. Trustor hereby irrevocably submits to the
jurisdiction of such courts to the extent any proceeding is brought in
accordance with this Section 12.21.3. Trustor irrevocably waives, to the fullest
extent it may effectively do so under Applicable Law, trial by jury and any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Trustor irrevocably consents, to the fullest extent it may
effectively do so under Applicable Law, to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Trustor at its said
address, such service to become effective 30 days after such mailing, Nothing
shall affect the right of Beneficiary to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Trustor in any other jurisdiction.
Section 12.22 Regulatory Matters. Whenever in this Deed of Trust a right
is given to Beneficiary, which right is affected by Applicable Gaming Laws or
the enforcement of which is subject to Applicable Gaming Laws, the enforcement
of any such right shall be subject to Applicable Gaming Laws and approval, if so
required, of the applicable Gaming Authorities. Without limiting the generality
of the foregoing, Beneficiary acknowledges that (a) Beneficiary is subject to
being called forward by the Gaming Authority of the State of Nevada, in their
discretion, for licensing or a finding of suitability as a lender to a gaming
licensee, and (b) to the extent the prior approval of the Gaming Authority of
the State of Nevada is required pursuant to applicable law for the exercise,
operation and effectiveness of any remedy hereunder or under
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any other Loan Document, or the taking of any action that may be taken by
Beneficiary or under any other Loan Document, such remedy or action shall be
subject to such prior approval of the Gaming Authority of the State of Nevada.
Section 12.23 Guarantor Waivers. If and to the extent that Trustor (for
the purposes of this Section 12.23, "Guarantor") would be deemed or construed to
be a guarantor or surety under applicable law with respect to its obligations
hereunder, Guarantor hereby agrees as follows:
12.23.1 Guarantor expressly agrees that until each and every
term, covenant and condition of this Deed of Trust is fully performed, Guarantor
shall not be released by any act or event which, except for this provision of
this Deed of Trust might be deemed a legal or equitable discharge or exoneration
of a surety, or because of any waiver, extension, modification, forbearance or
delay or other act or omission of Beneficiary or its failure to proceed promptly
or otherwise as against Fitzgeralds or any other Guarantor, as the case may be
(individually and collectively, in its or their capacity as the entity or
entities the obligations of which are guaranteed hereunder by Guarantor, the
"Principal") or Guarantor, or because of any action taken or omitted or
circumstance which might vary the risk or affect the rights or remedies of
Guarantor as against the Principal, or because of any further dealings between
the Principal and Beneficiary, whether relating to this Deed of Trust or
otherwise. Guarantor hereby expressly waives and surrenders any defense to
Guarantor's liability under this Deed of Trust based upon any of the foregoing
acts, omissions, things, agreements, waivers or any of them. It is the purpose
and intent of this Deed of Trust that the obligations of Guarantor under it
shall be absolute and unconditional under any and all circumstances, subject to
and in accordance with the terms and conditions of this Deed of Trust.
12.23.2 Without in any way limiting the provisions of Section
12.23.1, to the extent permitted under NRS Section 40.495, Guarantor waives the
applicable provisions of NRS Section 40.430 and further Guarantor waives:
12.23.2.1 all statutes of limitations as a defense to
any action or proceeding brought against Guarantor by Beneficiary, to the
fullest extent permitted by law;
12.23.2.2 any right it may have to require Beneficiary
to proceed against the Principal or pursue any other remedy in Beneficiary's
power to pursue, it being acknowledged and agreed that the obligations of
Guarantor hereunder are independent of the obligations of the Principal
hereunder, and Beneficiary shall not be required to make any demand upon,
exercise any right to declare a default by, or proceed against, the Principal
prior to proceeding against Guarantor to the full extent of Guarantor's
obligations hereunder;
12.23.2.3 any defense based on any legal disability of
the Principal and any discharge, release or limitation of the liability of the
Principal to Beneficiary, whether consensual or arising by operation of law or
any bankruptcy, reorganization, receivership,
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insolvency, or debtor relief proceeding, or from any other cause, or any claim
that Guarantor's obligations exceed or are more burdensome than those of the
Principal;
12.23.2.4 all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance of this Deed of Trust and of the existence, creation, or
incurring of new or additional indebtedness, and demands and notices of every
kind;
12.23.2.5 any defense based on or arising out of any
defense that the Principal may have to the payment or performance of any
obligation set forth in this Deed of Trust; and
12.23.2.6 until all obligations under this Deed of Trust
have been paid and performed in full, all rights of subrogation and all rights
to enforce any remedy that Guarantor may have against the Principal, all
regardless of whether Guarantor may have made any payments to Beneficiary.
12.23.3 Guarantor assumes full responsibility for keeping
informed of the financial condition and business operations of the Principal and
all other circumstances affecting the Principal's ability to pay for and perform
its obligations, and agrees that Beneficiary shall have no duty to disclose to
Guarantor any information which Beneficiary may receive about the Principal's
financial condition, business operations, or any other circumstances bearing on
its ability to perform.
12.23.4 Notwithstanding anything to the contrary provided
elsewhere herein, in no event shall Guarantor have any liability under this Deed
of Trust beyond its interest in the Property, and in no event shall Guarantor's
obligations hereunder be enforced against any property of Guarantor other than
its interest in the Property.
Section 12.24 Waiver of Trial by Jury. Trustor and Beneficiary waive the
right to a trial by jury in any action under this Deed of Trust or any other
Loan Document or any other action arising out of the transactions contemplated
hereby or thereby, regardless of which party initiates such action or actions.
[Signature page to follow.]
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IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be executed
as of the day and year first above written.
Trustor:
Fitzgeralds Reno, Inc.,
a Nevada corporation
By: Xxxxxxx X. XxXxxxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
------------------------------------
Title: Senior Vice President/CEO
-----------------------------------
X-0
00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF LOS ANGELES )
This instrument was acknowledged before me on October ___, 1998, by
Xxxxxxx X. XxXxxxxxx, as Senior Vice President/CFO, of Fitzgeralds Reno, Inc., a
Nevada corporation.
/s/ XXXXXXXX XXXX
---------------------------------
Notary Public
My Commission Expires: June 14, 2000
[SEAL]
58
SCHEDULE 12.8
ADDRESSES
TRUSTOR:
Fitzgeralds Reno, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
BENEFICIARY:
Foothill Capital Corporation
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Business Finance Division Manager
Telecopier: (000) 000-0000
TRUSTEE:
Lawyers Title Insurance Corporation
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Ms. Xxxx Xxxxxx
Telecopier: (000) 000-0000
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EXHIBIT "A"
LEGAL DESCRIPTION
OWNED LAND
(WASHOE COUNTY)
All that certain real property situate in Washoe County, Nevada, described as
follows:
PARCEL 1:
Xxxx 00, 00, 00, 00, 00, 00, 00 and the South 77 feet 4 1/2 inches of Lots 23
and 24, in Block O of ORIGINAL TOWN, NOW CITY OF RENO, according to the map
thereof, filed in the office of the County Recorder of Washoe County, State of
Nevada, on June 27, 1871.
PARCEL 3:
Lot 13 in Block O fronting 25 feet on Commercial Row and running back 100 feet
to the alley on the East side of Sierra Street, as shown on the official map of
Reno; also the West 7 feet and 10 inches of Xxx 00 xx Xxxxx X, Xxxxxxxx Xxx xx
Xxxx, the whole constituting a lot - 32 feet and 10 inches wide, front and rear
100 feet deep, and situate on the Xxxxxxxxx xxxxxx xx Xxxxxxxxxx Xxx xxx Xxxxxx
Xxxxxx.
XXXXXX 0:
BEGINNING at a point where the Southerly right of way line of the Central
Pacific Railway Company intersects the Westerly line of Chestnut Street, said
point being 200 feet Southerly and at right angles from the center line of the
originally located main track of said Central Pacific Railway Company; thence
Northerly along the Westerly line of Chestnut Street, produced Northerly 62
feet, more or less, to an intersection with the North line of the Southwest 1/4
of said Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X.&X.; thence West
along said North line 161.799 feet to a point that is distant 100 feet Southerly
measured at right angles from said center line of main track; thence in a
Westerly direction parallel to and distant 100 feet Southerly from the center
line of said track a distance of 12.609 feet; thence in a Southerly direction
parallel to the first mentioned course a distance of 100 feet to a point in said
Southerly right of way line; thence in an Easterly direction along said right of
way line a distance of 169.882 feet to the point of beginning.
Ex. A-Pg. 1
60
EXHIBIT "A"
LEGAL DESCRIPTION
OWNED LAND
(WASHOE COUNTY)
(continued)
PARCEL 5:
That certain triangular shaped parcel of land situate in the Southeast corner of
the Northwest 1/4 of Section 11, Township 19 North, Range 19 East, M.D.B.&M.,
bounded on the North by the Southerly line of the 100 foot right of way of the
Central Pacific Railway Company, on the South by the South line of the Northwest
1/4 of said Section 11, and on the East by the West line of Chestnut Street,
said parcel of land having a frontage of 50 feet, more or less, on Chestnut
Street, and extending Westerly along the Southerly line of said right of way to
its intersection with the South line of said Northwest 1/4 of said Section 11.
PARCEL 6:
Xxxxxxx 0, 0 xxx 0 xx Xxxxxx Map No. 2690, for EL DORADO HOTEL ASSOCIATES and
FITZGERALDS RENO, INC., filed in the office of the County Recorder of Washoe
County, State of Nevada, on March 18, 1993, as File No. 1656128, Official
Records.
* * * * *
Ex. A-Pg. 2
61
EXHIBIT "B-1"
LEASE AGREEMENT
(WASHOE COUNTY)
That certain Sublease dated December 31, 1986 between Meta X.
Xxxxxxxxxx, as the owner of the sublessor's interest and Fitzgeralds Reno, Inc.,
a Nevada corporation, as the owner of the sublessee's interest in and to the
real property described in EXHIBIT "B-2" to the Deed of Trust to which this
EXHIBIT "B-1" is attached as disclosed by that certain Memorandum of Lease dated
December 29, 1997, recorded on ___________, 1998 in the office of the County
Recorder of Washoe County, Nevada, as document number _________, official
records.
* * * * *
Ex. B-1-Pg. 1
62
EXHIBIT "B-2"
DESCRIPTION OF LEASED LAND
(WASHOE COUNTY)
All that certain real property situate in Washoe County, Nevada, described as
follows:
PARCEL 2:
The North 22 feet 7 1/2 inches of Lots 23 and 24, in Block O of ORIGINAL TOWN
NOW CITY OF RENO, according to the map thereof, filed in the office of the
County Recorder of Washoe County, State of Nevada, on June 27, 1871.
* * * * *
Ex. B-1-Pg. 2
