EXECUTION COPY
Recording at the Request of and when Recorded Mail Original to:
Xxxxxx & Xxxxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-2007
Attention: Xxxxxxxxx Xxxxxxxx
DEED OF TRUST TO PUBLIC TRUSTEE,
SECURITY AGREEMENT, FIXTURE FILING AND
ASSIGNMENT OF RENTS, LEASES AND LEASEHOLD INTERESTS
(XXXXXX COUNTY, COLORADO)
THE MAXIMUM PRINCIPAL INDEBTEDNESS OF THE OBLIGATIONS SECURED BY THIS
INSTRUMENT IS $215,000,000. THE OBLIGATIONS WILL MATURE NOT LATER THAN
June 15, 2010. THE OBLIGATIONS ARE ALSO SECURED BY A DEED OF TRUST IN
NEVADA. THE PORTION OF THE OBLIGATIONS ATTRIBUTABLE TO THIS STATE BASED
ON THE RELATIVE VALUE OF THE SECURITY IS $90,000,000, WHICH AMOUNT
SHOULD BE USED IN DETERMINING ANY MORTGAGE OR OTHER TAX WHICH IS BASED
ON THE PRINCIPAL AMOUNT OF THE INDEBTEDNESS SECURED HEREBY.
THIS DEED OF TRUST TO PUBLIC TRUSTEE, SECURITY AGREEMENT,
FIXTURE FILING AND ASSIGNMENT OF RENTS, LEASES AND LEASEHOLD INTERESTS (as the
same may be amended, supplemented or otherwise modified from time to time, this
"Deed of Trust") is made and entered into as of June 26, 2002 by RIVIERA BLACK
HAWK, INC., a Colorado corporation (the "Company"), whose address is 000 Xxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxx 00000 and whose federal taxation identification
number is 00-0000000 ("Trustor"), to the PUBLIC TRUSTEE OF THE COUNTY OF XXXXXX,
COLORADO ("Trustee"), for the benefit of THE BANK OF NEW YORK, having an office
at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as trustee
under the Indenture referred to below (together with its successors and assigns,
"Beneficiary") for its benefit and the benefit of the Holders.
RECITALS
A. Trustor is a wholly-owned subsidiary of Riviera Holdings
Corporation, a Nevada corporation ("RHC").
B. Beneficiary, RHC, ROC, RGM, RGMC and the Company are the
parties to that certain Indenture dated as of June 26, 2002 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Indenture").
Unless otherwise defined herein, capitalized terms used in this Deed of Trust
shall have the meanings given such terms in Annex A attached hereto.
C. RHC has, under the Indenture, issued its 11% Senior Secured
Notes Due 2010 (together with any amendments, supplements, modifications,
renewals or extensions thereof and any notes issued in replacement thereof or
exchange therefor from time to time, the "Notes") in the original principal
amount of $215,000,000. The Notes, the Indenture, the Collateral Documents, and
all other documents, agreements and instruments (in each case, as amended,
supplemented or otherwise modified from time to time) now or hereafter executed
and delivered in connection with the Indenture and the transactions described
therein are collectively hereinafter referred to as the "Transaction Documents."
D. The Indenture requires that the obligations of RHC under
the Notes, the Indenture and the other Transaction Documents be secured by,
among other things, liens and security interests covering certain property of
Trustor, and guaranteed, on a senior secured basis, by Trustor. In connection
therewith, Trustor is executing and delivering this Deed of Trust in accordance
with the Indenture.
E. RHC, ROC, RGM, RGMC, the Company and one or more lenders
may enter into a credit facility agreement pursuant to which RHC, ROC, RGM,
RGMC, the Company may incur up to $30,000,000 of Indebtedness (the "Credit
Facility"), which may be secured by Liens on the Collateral, including the Trust
Property. Upon execution and delivery of the intercreditor agreement (the
"Intercreditor Agreement") in the form of Exhibit H to the Indenture, the Liens
on the Collateral, including the Trust Property, securing the Notes, will be
subordinated to the Liens securing up to $30,000,000 of Indebtedness under the
Credit Facility.
NOW, THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Trustor agrees as follows:
ARTICLE 1
GRANT OF DEED OF TRUST
1. Grant of Deed of Trust. Trustor does hereby irrevocably grant, assign,
bargain, convey, transfer, warrant and set over unto Trustee, IN TRUST, WITH
POWER OF SALE, under and subject to the terms and conditions hereof, for the
benefit and security of Beneficiary and for the ratable benefit and security of
the Holders, all of Trustor's right, title and interest in and to all of the
following property, to the extent assignable under applicable law, whether now
owned or hereafter acquired (collectively, the "Trust Property"):
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(a) the real property described in Exhibit A attached hereto and by this
reference incorporated herein, including without limitation all air rights with
respect thereto (the "Land");
(b) any and all buildings, constructions, facilities and fixtures, pipelines and
all other improvements now on, or hereafter located, attached to, placed,
erected, developed or constructed on or in, the Land or any portion thereof
(collectively, the "Improvements"), and all fixtures, construction materials,
goods (including without limitation consumer goods, equipment and inventory) and
other articles of real and personal property which are now or hereafter affixed
to, placed upon or used in connection with the Trust Property;
(c) any and all tenements and hereditaments of whatever kind or description and
wherever situated and all of Trustor's right, title and interest in and to any
land lying within the right of way of any street, open or proposed, adjoining
the Land, any and all sidewalks, and any land lying between the boundaries of
the Land and the center line of any adjacent street, road, avenue or alley,
whether existing, vacated or proposed;
(d) any and all furniture, fittings and fixtures (whether actually or
constructively attached, and including all trade fixtures), equipment, machinery
(including without limitation any and all equipment, machinery and apparatus
used for or in connection with maintaining and operating gaming facilities,
gaming devices including slot machines, poker tables and blackjack tables,
lodging, restaurants, bars or entertainment facilities), appliances,
construction materials, personal property, supplies, tools, paintings,
sculptures, murals, art work, books, now or hereafter or from time to time
situated on, in or under the Land and/or any the Improvements or used or usable
in connection with any present or future use of the Land, whether or not affixed
to the realty, including, but not limited to, power, lighting, heating,
electrical, ventilating, air conditioning, gas, electricity, water sprinkling
and sprinkler protection, mechanical and plumbing materials, waste removal,
refrigeration, ventilation, freezing, laundry, incinerating and power equipment,
fixtures and supplies, fences and fencing, water and power systems, irrigation
systems and equipment, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, ventilating, cooling and communication apparatus and equipment,
engines, boilers, furnaces, elevators, escalators, pipes, pumps, tanks,
switchboards, ducts, conduits, conveyor belts, motors, refrigeration facilities
plants, vacuum cleaning systems, awnings, shrubbery, trees, vines and other
plants of every kind and nature, ranges, furnaces, ovens, burners,
refrigerators, cabinets, dishwashers, disposals, shades, awnings, blinds,
drapes, attached floor coverings, including carpeting, screens, storm doors and
windows, rugs and carpets, draperies, beds, bureaus, chests, desks, lamps,
bookcases, tables, chairs and couches, radios and television sets, china,
glassware, silverware, tableware, linens, towels, bedding and blankets, kitchen
equipment and utensils, bars and bar fixtures, uniforms, safes, vaults, cash
registers, accounting and duplicating machines, statuary, hangings, mirrors,
decorations, pictures and ornaments;
(e) any and all contract rights of whatever nature, whenever acquired, relating
to the Trust Property described in this Section 1.1, including without
limitation architectural and engineering plans, plans and specifications,
drawings, tests, reports or studies relating to the construction and the
Improvements on or to the Land, contracts for goods or services and management
contracts, all warranties and guaranties under such contracts and all rights
under architects' contracts, construction contracts, supply contracts,
completion bonds, performance bonds and payment bonds, all accounts, general
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intangibles, documents, instruments and chattel paper arising from or in
connection with such Trust Property, including all books and records in
connection therewith, all rights, claims, suits or demands that Trustor now has
or may hereafter acquire with respect to any damage to the Trust Property;
(f) any and all rights of Trustor under any leases or other agreements entered
into by Trustor (as a "landlord," "sublandlord," "lessor," "sublessor" or
similar capacity) now in existence or hereafter arising and providing for the
use and occupancy of all or any portion of the Trust Property (each, as amended,
supplemented or otherwise modified from time to time, a "Tenant Lease" and,
collectively, the "Tenant Leases");
(g) any and all additions, betterments and improvements hereafter acquired or
constructed upon or in connection with any other property, real or personal, now
or at any time hereafter subject to the lien of this Deed of Trust;
(h) any and all easements, rights of way, servitudes, surface rights, interests
in land, permits, licenses, grants affecting land, and all amendments thereof,
relating or appurtenant to the Land and/or any of the Improvements, fixtures,
personal property, easements, rights, interests and/or other items described in
this Section 1.1, now or hereafter belonging or pertaining to the Land,
including without limitation all franchises, privileges, reservations,
allowances, immunities, powers, rights, ordinances, permits, licenses, grants,
leases, consents, possessory and prescriptive rights of Trustor in, on, over,
under, across and through lands, roads, highways, railroads, canals, channels,
waterways, ditches, bridges or structures, or elsewhere, together with Trustor's
interest (now owned or hereafter acquired) in all fixtures, the Improvements and
personal property now or hereafter from time to time situated on, in, over,
under, across or through, attached to or used in connection with such Trust
Property and all rights and appurtenances incident thereto;
(i) any and all rights, powers, franchises, privileges, immunities, permits and
licenses now or hereafter owned or possessed by Trustor that now or at any time
hereafter may be necessary or useful for, or appurtenant to, the use, operation,
management, maintenance, renewal, alteration or improvement of any of the other
Trust Property;
(j) any and all income, rents, receipts, security or similar deposits, revenues,
issues, royalties, profits, earnings, products and proceeds from any and all of
the Land or any buildings or other the Improvements, now owned or hereafter
acquired (collectively, the "Rents, Issues and Profits"), together with the
right to collect and apply the same to any indebtedness secured hereunder,
subject, however, to the right hereafter given to Trustor to collect the Rents,
Issues and Profits as long as Trustor is not in default hereunder;
(k) any and all rights and estates in reversion or remainder;
(l) any and all oil and gas or other mineral rights in or pertaining to the Land
and all royalty, leasehold and other rights of Trustor pertaining thereto, now
owned or hereafter acquired;
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(m) any and all monies in the possession of Beneficiary or any Holder (including
without limitation retainages and deposits for taxes and insurance), and all
refundable utility, tenant, escrow and governmental fees and deposits, and all
refundable fees and deposits of every other nature, now owned or hereafter
acquired;
(n) any and all rights to obtain water, sewer and other services from
municipalities and service districts;
(o) any and all water and water rights, ditches and ditch rights, reservoirs and
storage rights, xxxxx and well rights, springs and spring rights, groundwater
rights (whether tributary, nontributary or not-nontributary), water contracts,
water allotments, water taps, shares in ditch or reservoir companies, and all
other rights of any kind or nature in or to the use of water, which are
appurtenant to, historically used on or in connection with, or located on or
under the Land, including without limitation shares of stock evidencing the
foregoing and all deposits made with or other security given to utility
companies by Trustor with respect to the Land or any buildings or other the
Improvements, together with any and all easements, rights of way, fixtures,
personal property, contract rights, permits or decrees associated with or used
in connection with any such rights;
(p) any and all shrubbery, trees, vines, flowers, plants and landscaping
features of every kind and nature and all crops of every type and nature, annual
and perennial, now or hereafter located on, under or above the Land, all
harvested crops wherever stored and any document of title or other document
representing a storage obligation, including, but not limited to, warehouse
receipts, negotiable or nonnegotiable, which may be received for crops in which
Trustor has any right, title or interest wherever stored;
(q) any and all claims or demands relating to insurance which Trustor now has or
may hereafter acquire with respect to any Trust Property, including without
limitation all advance payments of insurance premiums made by Trustor with
respect thereto;
(r) any and all awards and payments, including without limitation interest
payments, resulting from the exercise of any right of condemnation or eminent
domain or from any other public or private taking of, injury to or decrease in
the value of, any of the Land or the Improvements, or any agreement or
conveyance in lieu of any such action;
(s) any and all goods, inventory, equipment, building and other materials,
supplies, and other tangible personal property of every nature now owned or
hereafter acquired by Trustor and used or intended for use in the construction,
development, or operation of the Land or any the Improvements (including without
limitation all opened and unopened food and liquor supplies);
(t) any and all of the records and books, computer programs, tapes, discs,
software and other like records and information now or hereafter maintained by
or on behalf of Trustor in connection with the use of the Land, the
Improvements, the Tenant Leases and Rents, Issues and Profits;
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(u) any and all franchise, operating and management agreements, liquor and
gaming licenses (in each case, to the full extent legally assignable),
restaurant, occupancy, hotel, motel and other licenses, permits and
authorizations relating to the operation of the Improvements;
(v) any and all deposit accounts and other bank or similar accounts of Trustor
(together with all amounts in any such accounts), monies, accounts, accounts
receivable, contract rights and general intangibles (whether now owned or
existing or hereafter created or acquired, and including proceeds thereof)
relating in any way to, or arising in any manner from, Trustor's ownership, use,
operation, leasing, or sale of all or any part of the property, rights and
interests described in this Section 1.1 (including without limitation all
monies, rents, receipts, proceeds and compensation of every kind whatsoever
received by or on behalf of Trustor and produced from (i) the use or occupancy
of all or any part of the Improvements by the public or others, for lodging,
dwelling, office or residential purposes, (ii) gains arising from the sale or
other disposition of capital assets, including furniture, fixtures and
equipment, (iii) compensation awards, or proceeds in lieu thereof, (iv) all food
and beverage sales, (v) garage and parking rentals, (vi) meeting space rental,
(vii) telephone, telecopy and telex income, (viii) income from vending machines
and newsstands, (ix) recreational fees, (x) hotel rentals; and (xi)
entertainment revenues;
(w) any and all other real property acquired by Trustor after the date hereof
whether or not it is adjacent or contiguous to the Land, and is acquired by
Trustor as a continuation, completion, correction or supplement to the Land;
(x) any and all other rights and interests of every name and nature in all
property, whether real, personal or mixed, tangible or intangible, now or
hereafter owned or leased by Trustor, forming a part of or used in connection
with or relating to the Land and the construction, operation and convenience of
the Improvements (including without limitation any excavation permits and other
permits issued by governmental authorities);
(y) subject to the provisions and limitations contained in the Indenture, any
and all proceeds of any sales or other dispositions of the property or rights
described in the foregoing clauses to this Section 1.1 or any part thereof,
whether voluntary or involuntary; provided, however, that the foregoing shall
not be deemed to permit such sales, transfers or other dispositions except as
specifically permitted herein;
(z) to the extent permitted by applicable law, any and all of Trustor's right,
title, and interest in and to any and all licenses, permits, variances, special
permits, franchises, certificates, rulings, certifications, validations,
exemptions, filings, registrations, authorizations, consents, approvals,
waivers, orders, rights and agreements (including without limitation options,
option rights and contract rights) now or hereafter obtained by Trustor from any
governmental authority having or claiming jurisdiction over the Land, the FF&E,
or any other element of the Trust Property or providing access thereto, or the
operation of any business on, at, or from the Land, other than any Gaming
Licenses (except for any registrations, licenses, findings of suitability or
approvals issued by the Gaming Authority or any other gaming licenses which are
non-assignable) and the Liquor License; provided that, upon an Event of Default
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hereunder or under (and as defined in) the Indenture, if Beneficiary is not
qualified under the Gaming Laws (as defined below) to hold such Gaming Licenses,
then Beneficiary shall designate an appropriately qualified third party to which
an assignment of such Gaming Licenses can be made in compliance with the Gaming
Laws;
(aa) any and all monies and other property, real or personal, which may from
time to time be subjected to the lien hereof by Trustor or by anyone on its
behalf or with its consent, or which may come into the possession or be subject
to the control of Beneficiary pursuant to this Deed of Trust or any Collateral
Document, including without limitation any protective advances under this Deed
of Trust;
(bb) any and all of Trustor's rights further to assign, sell, lease, encumber or
otherwise transfer or dispose of the property described in the foregoing clauses
of this Section 1.1, for debt or otherwise, or to evidence or secure a Permitted
Lien or Permitted Disposition;
(cc) any and all after-acquired property in the same categories as any of the
foregoing clauses of this Section 1.1, and all additions and/or accessions to,
and all renewals, substitutions and replacements of, any of the foregoing, and
all other things of whatsoever kind and in any way or at any time belonging or
appurtenant to, or used in connection with, any of the Trust Property described
in this Section 1.1; and
(dd) to the extent not otherwise included in the foregoing, any and all proceeds
and products of any and all of the foregoing and, to the extent permitted by
applicable law, proceeds of any and all Gaming and Liquor Licenses even if such
Gaming and Liquor Licenses are not subject to the liens granted hereunder and
all collateral security and guarantees given by any person with respect to any
of the foregoing, and in any event including without limitation any and all (i)
proceeds of any insurance, indemnity, warranty or guarantee payable to
Beneficiary or to Trustor from time to time with respect to any of the Trust
Property, (ii) payments (in any form whatsoever) made or due and payable to
Trustor from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Trust Property by
any governmental authority (or any person acting under color of a governmental
authority), (iii) products of the Trust Property, (iv) other amounts from time
to time paid or payable under or in connection with any of the Trust Property,
and (v) subject to the provisions and limitations contained in the Indenture,
whatever is now or hereafter receivable or received by Trustor upon the sale,
exchange, collection or other disposition of any item of Trust Property, whether
voluntary or involuntary, including without limitation the proceeds of a
Permitted Disposition.
Notwithstanding the foregoing, the grant contained in this
Article 2 is subject to the terms of the Intercreditor Agreement (if any) and
the Trust Property shall not include any of the following assets (the "Excluded
Assets"): (i) Gaming Licenses and Liquor Licenses, (ii) any other governmental
approval or permit to the extent that, under the terms and conditions of such
approval or under applicable law, it cannot be subjected to a Lien in favor of
the Trustee without the approval of the relevant Governmental Authority, but
only to the extent that such approval has not been obtained; (iii) any Trust
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Property that is exclusively subject to any agreement with a third party that,
pursuant to its terms, prohibits the grant of a lien on such Trust Property;
provided that Trustor shall use its best efforts to obtain such third party's
consent to assignment of all such agreements; (iv) any and all assets of any
Person designated as an Unrestricted Subsidiary of RHC after the date of the
Indenture; and (v) FF&E to the extent financed or refinanced by, or the proceeds
of, an FF&E Financing to the extent that (A) the purchase or lease of such FF&E
was not financed or refinanced with the proceeds of the Notes but with the
proceeds of an FF&E Financing in place at the time of such purchase or lease and
(B) Trustor is permitted to enter into such FF&E Financing for such FF&E under
the Indenture; provided further that any such FF&E Financing shall encumber only
that FF&E specifically subject to such FF&E Financing; and provided further
that, upon the repayment, satisfaction or termination of such FF&E Financing,
all FF&E financed thereby shall no longer be deemed an Excluded Asset and shall
be subject to the lien of this Deed of Trust.
TO HAVE AND TO HOLD the Trust Property unto Trustee, its
successors and assigns forever, FOR THE PURPOSE OF SECURING, in such order of
priority as Trustee and Beneficiary may elect, the indebtedness and obligations
described in Section 1.3 hereof.
Trustor, for itself and its successors and assigns, covenants
and agrees to and with Beneficiary that, at the time or times of the execution
of and delivery of these presents or any instrument of further assurance with
respect thereto, Trustor has good right, full power and lawful authority to
assign, grant, convey, warrant, transfer, bargain or sell its interests in the
Trust Property in the manner and form as aforesaid, and that the Trust Property
is free and clear of all Liens and encumbrances whatsoever, except the Permitted
Liens, and Trustor shall warrant and forever defend the Trust Property in the
quiet and peaceable possession of Beneficiary and its successors and assigns
against all and every Person or Persons lawfully or otherwise claiming or to
claim the whole or any part thereof, except for the Permitted Liens. Trustor
agrees that any greater title to the Trust Property hereafter acquired by
Trustor during the term hereof shall be automatically subject hereto.
2. Status of Title; Defense of Actions and Costs. Trustor has the right to
mortgage and convey the Trust Property to Trustee and Beneficiary and will
warrant and defend the same to Trustee and Beneficiary and their respective
successors and assigns against the lawful claims and demands of every Person or
whomsoever claiming or to claim the same. Trustor agrees to protect, preserve
and defend Trustee's and Beneficiary's interests in the Trust Property and title
thereto, to appear and defend this Deed of Trust in any action or proceeding
affecting or purporting to affect the Trust Property, the Lien or security
interest of this Deed of Trust thereon, or any of the rights of Trustee or
Beneficiary hereunder, and to pay all reasonable costs and expenses incurred by
Trustee or Beneficiary in or in connection with any such action or proceeding,
including reasonable attorneys' fees, whether or not any such action or
proceeding progresses to judgment and whether or not brought by or against
Trustee or Beneficiary. Trustee and Beneficiary shall be reimbursed for any such
reasonable costs and expenses in accordance with the provisions of this Deed of
Trust and the other Transaction Documents. Trustee or Beneficiary may, but shall
not be under any obligation to, appear or intervene in any such action or
proceeding, retain counsel therein, defend the same or otherwise take such
action therein as it be advised and may settle or compromise the same. In
connection therewith Beneficiary or Trustee, as the case may be, in that behalf
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and for any of such purposes, but without obligation, may expend and advance
such sums of money as it reasonably may deem necessary, and shall be reimbursed
therefor in accordance with the provisions of this Deed of Trust and the other
Transaction Documents.
3. Obligations Secured. This Deed of Trust is given for the purpose of securing
the payment and performance in full when due (whether at stated maturity, upon
redemption or required repurchase, by acceleration or otherwise) of all
obligations of every type and nature of Trustor to Trustee, any other trustee
under any other Deed of Trust, Beneficiary or any Holder (including without
limitation any and all amounts which may at any time be or become due and
payable and any and all interest accruing after the maturity of the Notes and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
Trustor, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding and interest, to the extent permitted by law, on the
unpaid interest), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Indenture, the Notes, this Deed of Trust, the
other Collateral Documents, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, premium,
interest, fees, Liquidated Damages, indemnities, costs, expenses or otherwise
(including without limitation all fees and disbursements of counsel to Trustee
or to the Holders that are required to be paid by Trustor pursuant to the terms
of the Indenture, the Notes, this Deed of Trust, any other Collateral Document,
or any other document entered into by Trustor, or either of them, in connection
with any of the foregoing) (the foregoing, collectively, the "Obligations").
Notwithstanding the scope of such definition, for purposes of any provision of
Title 38 of the Colorado Revised Statutes, the only "original evidence of debt"
secured by this Deed of Trust are the Notes.
The Beneficiary will produce all of the Notes, to support Beneficiary's
written request for full or partial release of this Deed of Trust or for the
sale of the Trust Property by Trustee. Trustor shall pay and perform the
Obligations at the times and places and in the manner specified in the Notes,
the Indenture and the other Transaction Documents. This Deed of Trust shall
secure unpaid balances of all loans and other such extensions of credit made to
Trustor under the Transaction Documents, whether made pursuant to an obligation
of Beneficiary or any Holder to make such loans or extensions or otherwise. Such
Obligations and other extensions of credit may or may not be evidenced by notes
executed pursuant to the Indenture. All future advances will have the same
priority as the original advance. Any agreement hereafter made by Trustor and
Beneficiary pursuant to this Deed of Trust shall be superior to the rights of
the holder of any intervening Lien or encumbrance to the extent allowed by law.
PROVIDED, HOWEVER, that if the principal and interest and all
other sums due or to become due under the Notes shall have been indefeasibly
paid in full at the time and in the manner stipulated herein and all other sums
payable hereunder and all other indebtedness secured hereby shall have been
indefeasibly paid in full, then, in such case, the estate, right, title and
interest of Trustee and Beneficiary in the Trust Property shall cease, and upon
written notice from Beneficiary that all of the indebtedness secured hereby has
been indefeasibly paid in full, cancellation of the Notes secured hereby,
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surrender of this Deed of Trust and the Indenture to Trustee and payment by
Trustor of Trustee's fees and costs, all other amounts payable to Trustee
hereunder and all recording costs, Trustee shall release this Deed of Trust and
the Trust Property shall become wholly free of the liens, security interests,
conveyances and assignments created and evidenced hereby.
4. After-Acquired Property. If Trustor hereafter acquires (a) any property that
is of the kind or nature described in Section 1.1 hereof and is or is intended
to become a part thereof, or (b) an interest in any of the Trust Property
greater than the interest now held, then such property or interest shall,
immediately upon such acquisition, become subject to the lien of this Deed of
Trust as fully and completely and with the same effect as though now owned by
Trustor and specifically described herein, without need for the delivery and/or
recording of a supplement to this Deed of Trust or any other instrument, all to
the extent permitted by applicable law; provided, however, Trustor shall from
time to time, if requested by Beneficiary and at Trustor's expense, execute and
deliver any and all such further assurances, conveyances and assignments thereof
as Beneficiary may reasonably require for the purpose of expressly and
specifically subjecting to the lien of this Deed of Trust any and all such
property or interest.
5. Security Agreement; Fixture Filing. As additional security for the
Obligations, Trustor grants to Beneficiary a security interest in the Trust
Property. This Deed of Trust shall also, as to any part of the Trust Property
that may or might now or hereafter be deemed to be personal property, fixtures
or other property covered by Article 9 of the Colorado Uniform Commercial Code
(the "Personal Property"), be deemed to constitute a security agreement, and
Trustor, as debtor, hereby grants to Beneficiary, as secured party, a security
interest therein pursuant to the Colorado Uniform Commercial Code. To the extent
that any Personal Property has been or may be acquired with funds advanced under
the Transaction Documents, this security interest granted hereunder is a
purchase money security interest. Trustor agrees, upon request of Xxxxxxxxxxx,
and at Trustor's expense, to execute any supplements to this Deed of Trust, any
separate security agreement and any financing statements and continuation
statements in order to include specifically the Personal Property or otherwise
to perfect the security interest granted hereby. Upon the occurrence and
continuance of any Event of Default, Beneficiary shall have all of the rights
and remedies therein provided or otherwise provided by law or by this Deed of
Trust, including but not limited to the right to require Trustor to assemble the
Personal Property and make it available to Beneficiary at a place to be
designated by Beneficiary which is reasonably convenient to both parties, the
right to take possession of such Personal Property with or without demand and
with or without process of law and the right to sell and dispose of such
Personal Property and distribute the proceeds according to law. The parties
hereto agree that any requirement of reasonable notice shall be met if
Beneficiary sends such notice to Trustor at least ten (10) days prior to the
date of sale, disposition or other event giving rise to the required notice, and
that the proceeds of any disposition of any such Personal Property may be
applied by Beneficiary first to the reasonable expenses in connection therewith,
including reasonable attorneys' fees and legal expenses incurred, and then to
payment of the other Obligations. The parties hereto further agree that any sale
of the Personal Property held contemporaneously with any sale of the Land or
other Trust Property and upon the same notice as required in the Colorado
Uniform Commercial Code shall be deemed to be a public sale conducted in a
commercially reasonable manner. With respect to any Personal Property that has
become so attached to the real property covered hereby that an interest therein
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arises under the real property law of the State of Colorado, this Deed of Trust
shall also constitute a financing statement and a fixture filing under Sections
4-9-102(40) and 4-9-502(c) of the Colorado Uniform Commercial Code.
ARTICLE 2
COVENANTS CONCERNING THE TRUST PROPERTY
1. Taxes and Governmental Impositions.
(a) Payment. Subject to Section 2.1(c), Trustor will pay, or cause to be paid,
prior to delinquency, all taxes, assessments, charges, fees (including without
limitation gaming and Liquor License fees), fines and impositions of every
nature whatsoever charged, imposed, levied or assessed or to be charged,
imposed, levied or assessed upon or against the Trust Property or any part
thereof, or upon the interest of Trustee or Beneficiary in the Trust Property,
including without limitation: (i) all income taxes (excluding income taxes of
Trustee or Beneficiary), assessments and other governmental charges lawfully
levied and imposed by the United States or any state, county, municipality or
other taxing or assessing authority in respect of the Trust Property or any part
thereof; (ii) all non-governmental levies or assessments, such as maintenance
charges, owner's association dues, charges or fees, levies or charges resulting
from covenants, conditions and restrictions affecting the Trust Property or any
part thereof; and (iii) any other charge that, if unpaid, would or could become
a Lien or charge upon the Trust Property, or any part thereof (all of which are
hereinafter collectively referred to as the "Impositions").
(b) Alternative Impositions. If at any time after the date hereof there shall be
assessed or imposed: (i) a tax or assessment on Trustor's interest in the Trust
Property in lieu of or in addition to the Impositions payable by Trustor
pursuant to subparagraph (a) above; or (ii) a license fee, tax or assessment
imposed on Trustee or Beneficiary and measured by or based in whole or in part
upon the amount of the outstanding Obligations secured hereby (but excluding any
state or federal income or franchise tax), then all such taxes, assessments, or
fees shall be deemed to be included within the term "Impositions" as defined in
Section 2.1(a) above, and Trustor shall pay and discharge the same as herein
provided with respect to the payment of Impositions.
(c) Contests. Trustor shall have the right, before the occurrence of any
delinquency of any Imposition, to contest or object to the amount or validity of
any such Imposition by appropriate legal proceedings, but such right shall not
be deemed or construed in any way as relieving, modifying or extending Trustor's
covenant to pay any such Imposition at the time and in the manner provided in
Section 2.1(a) hereof, unless Trustor has given thirty (30) days' prior written
notice to Beneficiary of Trustor's intent so to contest or object to such
Imposition, and unless: (i) the legal proceedings shall operate conclusively to
prevent the sale of the Trust Property, or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings and Trustor shall
furnish a good and sufficient bond, surety or cash resources in the amount of
the Imposition that is being contested, plus any interest and penalty that may
be imposed thereon and that could become a Lien against the Trust Property and
in a manner to stay or prevent the sale of the Trust Property, or other security
11
satisfactory to Beneficiary; or (ii) Trustor shall have paid such Imposition
under protest and is suing to recover any refunds thereof. Subject to the
foregoing, within thirty (30) days after the date when an Imposition is due and
payable, Trustor shall deliver to Beneficiary evidence reasonably acceptable to
Beneficiary showing the payment of such Imposition. In the event that Trustor
contests or objects to an Imposition in accordance with the foregoing, then
Trustor shall promptly and diligently proceed to resolve the dispute concerning
the Imposition in a manner not prejudicial to Beneficiary or its rights
hereunder or under the other Transaction Documents.
(d) Payment by Beneficiary. Beneficiary shall have the right to pay any
Imposition after the date such Imposition shall have become delinquent if
Trustor's failure to pay such Imposition constitutes or would constitute, with
or without the giving of notice by Beneficiary or the passage of time, an Event
of Default (unless Trustor shall be contesting such Imposition pursuant to
Section 2.1(c) hereof), and to add to the Obligations the amount so paid,
together with interest thereon from the date of such payment at the then
applicable interest rate on the Notes plus 2% per annum (the "Default Rate") and
nothing herein contained shall affect such right and such remedy. Any amounts
paid by Beneficiary or Trustee in discharge of any Impositions shall be (i) a
future advance hereunder and a lien on the Trust Property secured hereby prior
to any right or title to, interest in, or claim upon the Trust Property
subordinate to the lien of this Deed of Trust, and (ii) payable on demand.
(e) No Credit. Trustor shall not claim, demand or be entitled to receive any
credit or credits towards the satisfaction of this Deed of Trust or on any
interest payable thereon for any taxes assessed against the Trust Property or
any part thereof, and shall not claim any deduction from the taxable value of
the Trust Property by reason of this Deed of Trust.
(f) Deposits for Impositions or Insurance Premiums. (i) At any time after the
occurrence of an Event of Default, upon request by Beneficiary, Trustor shall
deposit with Beneficiary or to such account as Beneficiary may direct (1) on the
first day of each month following such request an amount equal to 1/12 of the
annual Impositions and/or annual insurance premiums (as required by Beneficiary)
reasonably estimated by Beneficiary to become due with respect to the Trust
Property for the ensuing year, and (2) thirty (30) days prior to the next due
date of any Impositions or insurance premiums, an additional amount equal to the
aggregate amount of such Impositions or insurance premiums (as applicable), less
the sum of the amounts on deposit and the amounts to be deposited pursuant to
clause (1) of this subsection (f)(i). If the amounts on deposit under this
Section 2.1(f) shall exceed the amounts required, the excess shall be credited
to the subsequent deposits to be made by Trustor. If the amounts on deposit
under this Section 2.1(f) shall be insufficient to pay such Impositions or
insurance premiums (as applicable), upon request, Trustor shall immediately
deposit an amount equal to the deficiency with Beneficiary (or to such account
as Beneficiary may direct). Except as required under applicable law, the
deposits under this Section 2.1(f) shall be for the exclusive benefit of
Beneficiary and all right, title and interest in and to such deposits shall be
subject to the exclusive dominion and control of Beneficiary. In no event will
Beneficiary be liable for any interest on any amount so deposited. Beneficiary
shall have no responsibility to ensure the adequacy of the amounts deposited
hereunder. At any time Beneficiary may notify Trustor that it need no longer
make deposits under this Section 2.1(f), whereupon Trustor shall cease making
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such deposits; provided that any such notice shall be without prejudice to
Beneficiary's right to require thereafter that Trustor make deposits under and
in accordance with this Section 2.1(f).
(ii) If deposits are made under this Section 2.1(f), Beneficiary shall make
payments of the Impositions or insurance premiums for which such deposits are
made as the same become due, but only following actual receipt by Beneficiary of
the bills therefor, which Trustor shall furnish to Beneficiary not later than
ten (10) Business Days prior to the due date thereof, and only to the extent
that the amounts on deposit with Beneficiary at the time are sufficient to make
such payments. Notwithstanding the foregoing or the fact any amounts deposited
under this Section 2.1(f) may be deposited with respect to certain Impositions
or insurance premiums, Beneficiary may use any amounts on deposit under this
Section 2.1(f) to pay any Impositions or insurance premiums as the same become
due and in whatever order as Beneficiary, in its sole discretion, may determine.
(iii) If an Event of Default or Default has occurred and is continuing,
Beneficiary shall have the right, but not the obligation, to apply the deposits
held under this Section 2.1 toward the cure of such Event of Default or Default.
2. Mechanic's and Other Liens; Subrogation. Trustor will not suffer any
mechanic's, laborer's, materialmen's, statutory or other Lien or any security
interest or encumbrance (including without limitation any deed of trust or
mortgage) to be created or to remain outstanding (other than Permitted Liens) on
any of the Trust Property. Trustor will promptly pay and discharge any and all
amounts which are now or hereafter become Liens against the Trust Property,
which Liens are not Permitted Liens, whether or not superior to the lien hereof
or to any assignment of rents and leases given to Beneficiary. The lien
covenants of this Section 2.2 shall survive any foreclosure and sale of the
Trust Property and any conveyance thereof by deed in lieu of foreclosure with
respect to any such Liens in existence as of the date of transfer of title. To
the extent that proceeds of the Notes and any other advances representing the
Obligations are used to pay indebtedness secured by any outstanding Lien or
prior encumbrance against the Trust Property, such proceeds have been advanced
at Trustor's request and Beneficiary shall be subrogated to any and all rights,
security interests and Liens owned by any owner or holder of such outstanding
Liens or encumbrances, irrespective of whether such Liens or encumbrances are
released, and it is expressly understood that in consideration of the payment of
such indebtedness, Trustor, with respect to the Beneficiary, hereby waives and
releases all demands and causes of action for offsets, payments and rentals to,
upon and in connection with such indebtedness. Notwithstanding the foregoing,
Trustor will not be deemed to be in default under this Section 2.2 if and so
long as Trustor (a) promptly notifies Beneficiary in writing of Trustor's
intention to contest such Lien together with a reasonably detailed description
of the Lien, (b) contests in good faith the validity or amount of any asserted
Lien and diligently prosecutes or defends an action appropriate to obtain a
binding determination of the disputed matter, and (c) provides Beneficiary with
such security as Beneficiary may in its reasonable discretion require to protect
Beneficiary against all loss, damage and expense, including without limitation,
reasonable attorneys' fees, which Beneficiary might incur if the asserted Lien
is determined to be valid.
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3. Utilities. Trustor will pay, or cause to be paid, prior to delinquency
any charges for utilities, whether public or private, with respect to the Trust
Property or any part thereof.
4. Insurance
(a) Maintenance. Trustor will obtain and maintain insurance with respect to the
Trust Property in accordance with the provisions of the Indenture. From and
after the entry of judgment of foreclosure, all rights and powers of Beneficiary
hereunder and under the Indenture to settle or participate in the settlement of
losses under policies of insurance or to hold and disburse or otherwise control
use of insurance proceeds shall continue in full force and effect in Beneficiary
as judgment creditor or mortgagee until confirmation of sale.
(b) Proceeds. If the Trust Property is materially damaged or destroyed, Trustor
shall give prompt notice thereof to Beneficiary and all insurance proceeds shall
be paid to Trustor, subject to the terms of Section 4.10 of the Indenture.
5. Condemnation. Immediately upon obtaining knowledge of the institution
of any proceedings for the condemnation of the Trust Property or any material
portion thereof, Trustor will notify Beneficiary of the pendency of such
proceedings. All condemnation proceeds shall be applied in accordance with
the provisions ofSection 4.10 of the Indenture.
6. Restoration. Restoration of any of the Trust Property after partial or
complete casualty or condemnation shall be performed in accordance with the
applicable provisions of the Indenture.
7. Care of the Trust Property
(a) Preservation and Maintenance.
(i) Trustor will preserve and maintain the Trust Property in accordance with the
applicable provisions of the Indenture. Further, Trustor shall keep all of the
Trust Property in good condition and repair and expressly agrees that it will
neither permit nor commit any waste upon the Trust Property, nor do any other
act or suffer or permit any act to be done, whereby the Lien hereof may be
impaired. Trustor shall comply in all material respects with all zoning laws,
building codes, subdivision laws, gaming and liquor laws (including without
limitation the Colorado Liquor Code and the Colorado Limited Gaming Act and
their respective regulations), and other applicable laws, and Trustor shall not
become involved in conduct that would cause either the Gaming or Liquor Licenses
relating to the Trust Property to be suspended or revoked. Trustor agrees not to
initiate or acquiesce in any zoning variance or reclassification which would
prohibit the use of the Trust Property for its intended purposes. Trustor shall
at all times comply in all material respects with applicable restrictive
covenants and the terms and conditions of all other Permitted Liens relating to
the Trust Property. Notwithstanding anything above to the contrary, to the
extent expressly permitted by the Indenture, Trustor may remove or sell any
fixture, equipment, machinery or appliance in or on the Trust Property incident
to the replacement of such items with replacements leased or purchased by
Trustor with the proceeds of FF&E Financing.
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(ii) Without granting to Trustor any right to incur Indebtedness or Liens not
expressly permitted by the Indenture, Trustor may make alterations or construct
other improvements on the Land to the extent not prohibited by the Indenture or
under any other documents creating a Permitted Lien on the Trust Property (any
of the foregoing are called herein a "Permitted Alteration"); provided that such
work shall be performed in a good and workmanlike manner and in compliance with
all laws including without limitation the Colorado Liquor Code and the Colorado
Limited Gaming Act.
(b) Notice of Damage. If the Trust Property or any part thereof is materially
damaged by fire or any other cause, Trustor shall give prompt written notice
thereof to Beneficiary.
(c) Right to Inspect. Beneficiary or its representative is hereby authorized,
with reasonable advance notice to Trustor, to enter upon and inspect the Trust
Property at any time during normal business hours and at any other reasonable
time.
8. Future Tenant Leases
(a) Any future Tenant Leases permitted by the Indenture must be subordinate to
the lien of this Deed of Trust, unless otherwise permitted by the Indenture.
Each future Tenant Lease must contain a provision that, at Beneficiary's
election, upon notice to tenant by Beneficiary, such Tenant Lease shall become
superior, in whole or in part, to the lien of this Deed of Trust. Further, each
future Tenant Lease of real property shall obligate the tenant thereunder to
attorn, at the option of the purchaser of the Trust Property, to any purchaser
at foreclosure or other successor owner of the Trust Property.
(b) Trustor shall furnish to Beneficiary a true and complete copy of each Tenant
Lease, and any amendment, modification, extension or renewal of any Tenant Lease
hereafter made by Trustor, within thirty (30) days after execution of each such
Tenant Lease, amendment, modification, extension, or renewal by the parties
thereto.
(c) Trustor shall, at Trustor's sole cost and expense, perform each and every
material covenant, condition, promise and obligation on the part of the lessor
to be performed pursuant to the terms of each and every Tenant Lease existing on
the date hereof or hereafter made with respect to the Trust Property or any part
or parts thereof.
(d) Trustor shall promptly furnish to Beneficiary any and all material
information which Beneficiary may request concerning the performance and
observance of all covenants, agreements and conditions contained in the Tenant
Leases by the lessor thereunder to be kept, observed and performed and
concerning the compliance with all terms and conditions of the Tenant Leases.
(e) In the event of any failure by Trustor to keep, observe or perform any
material covenant, agreement or condition contained in the Tenant Leases or to
comply with the terms and conditions of any Tenant Leases, any performance,
observance or compliance by Beneficiary pursuant to this Deed of Trust on behalf
of Trustor shall not remove or waive, as between Trustor and Beneficiary, the
15
corresponding Default or Event of Default under the terms of this Deed of Trust.
(f) Any proceedings or other steps taken by Beneficiary to foreclose this Deed
of Trust, or otherwise to protect the interests of Beneficiary hereunder, shall
not automatically operate to terminate the rights of any present or future
tenant under any Tenant Lease, notwithstanding that such rights may be subject
and subordinate to the lien of this Deed of Trust. The failure to make any such
tenant a defendant in any such foreclosure proceeding and to foreclose such
tenant's rights will not be asserted by Trustor or any other defendant in such
foreclosure proceeding as a defense to any proceeding instituted by or on behalf
of Beneficiary to foreclose this Deed of Trust or otherwise protect the
interests of Beneficiary hereunder.
9. Further Encumbrance
(a) Trustor covenants that at all times prior to the discharge of the Indenture,
except for Permitted Liens, Permitted Dispositions and dispositions permitted
under Section 2.10, Trustor shall neither make nor suffer to exist, nor enter
into any agreement for, any sale, assignment, exchange, mortgage, transfer,
Lien, hypothecation or encumbrance of all or any part of the Trust Property,
including without limitation the Rents, Issues and Profits. As used herein,
"transfer" includes the actual transfer or other disposition, whether voluntary
or involuntary, by law, or otherwise, except those transfers specifically
permitted herein.
(b) Trustor agrees that in the event the ownership of the Trust Property or any
part thereof becomes vested in a Person other than Trustor, Beneficiary may,
without notice to Trustor, deal in any way with such successor or successors in
interest with reference to this Deed of Trust, the Notes and other Obligations
hereby secured without in any way vitiating or discharging Trustor's or any
guarantor's, surety's or endorser's liability hereunder or under the Obligations
hereby secured. No sale of the Trust Property, no forbearance to any Person with
respect to this Deed of Trust and no extension to any Person of the time for
payment of the Notes and other sums secured hereby given by Beneficiary shall
operate to release, discharge, modify, change or affect the original liability
of Trustor, or such guarantor, surety or endorser, either in whole or in part.
(c) This Deed of Trust, shall not extend to (i) FF&E to the extent the purchase
or lease thereof has been financed or refinanced by, or with the proceeds of, an
FF&E Financing permitted under the Indenture and (ii) any future or further
advances made under such FF&E Financing and to any modifications, renewals,
extensions or refinancings thereof to which the lien of this Deed of Trust would
otherwise attach, in each case to the extent such FF&E Financing is permitted
under the Indenture; provided that any such FF&E Financing shall encumber only
that FF&E specifically subject to the FF&E Financing; and provided further that,
upon the repayment, satisfaction or termination of such FF&E Financing, all FF&E
financed thereby shall no longer be deemed an Excluded Asset and shall be
subject to the lien of this Deed of Trust. The Beneficiary shall, if requested
by the Trustor, execute and deliver, at Trustor's sole expense, any instruments
reasonably necessary or appropriate to release the lien of this Deed of Trust
with respect to or otherwise confirm that the lien of this Deed of Trust does
not apply to any of such Excluded Assets; Trustor covenants and agrees to comply
16
with all of the terms and conditions set forth in any FF&E Financing with
respect to which Beneficiary has taken a Lien hereunder. If Trustor shall fail
to make any payment of principal of or interest on the sums secured by such
security interest or any payment in order to perform or observe any other term,
covenant, condition or agreement of any FF&E Financing on Trustor's part to be
performed or observed, except where Trustor is diligently contesting such
payment in good faith, then Beneficiary may make such payment of the principal
of or interest on the sums secured by such security interest or may make any
payment in order to perform or observe any other term, covenant, condition or
agreement of any FF&E Financing on Trustor's part to be performed or observed,
and any and all sums so expended by Beneficiary shall be part of the Obligations
and shall be secured by this Deed of Trust and shall be repaid by Trustor upon
demand, together with interest thereon at the Default Rate from the date of
advance.
10. Partial Releases of Trust Property.
(a) Trustor may from time to time (i) transfer a portion of the Trust Property
(including any temporary taking) to any Person legally empowered to exercise the
power of eminent domain, or (ii) make a Permitted Disposition. In each such
case, and at Trustor's sole expense, Beneficiary shall execute and deliver any
instruments necessary or appropriate to effectuate or confirm any such transfer
or grant, free from the lien of this Deed of Trust; provided, however, that
Beneficiary shall execute a lien release or subordination agreement, as
appropriate, for matters described in clause (i) above only if:
(A) Beneficiary shall have received an Officers' Certificate or Opinion of
Counsel required or authorized by Section 10.04 of the Indenture;
(B) No Default or Event of Default shall have occurred and be continuing and the
conditions of this Section 2.10 have been fulfilled, and such transfer, grant or
release is permitted by the Indenture;
(C) Beneficiary shall have received a counterpart of the instrument pursuant to
which such transfer, grant or release is to be made, and each instrument which
Beneficiary is requested to execute in order to effectuate or confirm such
transfer, grant or release, and each shall be acceptable to Beneficiary in form
and substance; and
(D) Beneficiary shall have received such other instruments, certificates
(including evidence of authority) and opinions as Beneficiary may reasonably
request or as required or authorized under the Indenture, including, but not
limited to, opinions that the proposed release is permitted by this Section
2.10.
(b) Any consideration received for a transfer to any Person empowered to
exercise the right of eminent domain shall be subject to Section 2.5 hereof.
ARTICLE 3
ASSIGNMENT OF LEASES AND RENTS
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1. Assignment of Leases and Rent. As additional consideration for the
Obligations, Trustor hereby absolutely and unconditionally assigns and
transfers to Beneficiary the following:
(a) the Tenant Leases;
(b) any and all guaranties of the obligations of the tenants (the "Tenants")
under any of such Tenant Leases; and
(c) unless and until the Event of Default has occurred, the immediate and
continuing right to collect and receive all of the Rents, Issues and Profits now
due or that may become due or to which Trustor may now or hereafter (whether
during any applicable period of redemption or otherwise) become entitled or may
demand or claim, arising or issuing from or out of the Tenant Leases, or from or
out of the Trust Property or any part thereof.
2. Trustor's Limited License. Provided that no Event of Default hereunder
exists, Trustor shall have the right under a license granted hereby and
Beneficiary hereby grants to Trustor a license to collect, but not more than one
month in advance, all of the Rents, Issues and Profits arising from or out of
the Tenant Leases or any renewals or extensions thereof, or from or out of the
Trust Property or any part thereof, but only as trustee for the benefit of
Beneficiary. Trustor shall apply the Rents, Issues and Profits so collected
first to payment of any and all amounts due and payable under the Indenture.
Thereafter, so long as no Event of Default hereunder exists, Trustor may use the
Rents, Issues and Profits in any manner not inconsistent with the Indenture. The
license granted hereby shall be revoked automatically upon the occurrence of an
Event of Default hereunder.
3. Limitation. The acceptance by Beneficiary of the assignment provided in this
Article 3, together with all of the rights, powers, privileges and authority
created in this Article 3 or elsewhere in this Deed of Trust, shall not, prior
to entry upon and taking possession of the Trust Property by Beneficiary, be
deemed or construed to constitute Beneficiary a "mortgagee in possession," nor
thereafter or at any time or in any event obligate Beneficiary to appear in or
defend any action or proceeding relating to the Tenant Leases, the Rents, Issues
and Profits or the Trust Property or to take any action hereunder or to expend
any money or incur any expenses or perform or discharge any obligation or
responsibility for any security deposits or other deposits delivered to Trustor
by any Tenant and not assigned and delivered to Beneficiary, nor shall
Beneficiary be liable in any way for any injury or damage to person or property
sustained by any person or persons, firm or corporation in or about the Trust
Property.
4. Performance by Trustor. Trustor shall perform its obligations under the
Tenant Leases in accordance with their terms. Trustor shall not default in the
performance of any obligation of Trustor under any Tenant Lease if, by reason of
such default, the Tenant or other party thereunder has the right to cancel such
Tenant Lease or to claim any diminution or offset against future Rents, Issues
or Profits.
5. No Merger of Leases. If the estates of all parties to any Tenant Lease shall
at any time become vested in one owner, this Deed of Trust and the lien created
hereby shall not be destroyed or terminated by application of the doctrine of
merger, and in such event, Beneficiary shall continue to have and enjoy all of
18
the rights and privileges of Beneficiary as to the separate estates. In
addition, upon the foreclosure of the lien created by this Deed of Trust, any
Tenant Leases then existing and affecting all or any portion of the Trust
Property shall not be destroyed or terminated by application of the law of
merger or as a matter of law or as a result of such foreclosure, unless
Beneficiary or any purchaser at any such foreclosure sale shall so elect in
writing. No act by or on behalf of Beneficiary or any such purchaser shall
constitute a termination of any Tenant Lease or sublease unless Beneficiary or
such purchaser shall give written notice thereof to the lessee or sublessee
under such Tenant Lease.
6. Remedies. If an Event of Default has occurred and is continuing, in addition
to all other rights and remedies of Beneficiary as set forth under Article 4
hereof, Beneficiary shall have the following rights and remedies:
(a) Possession and/or Collection of Rent. Beneficiary, without first being
required to (i) foreclose, (ii) take any actions to foreclose, (iii) institute
any legal proceedings of any kind whatsoever or (iv) exercise any other actions
or remedies hereunder or at law or in equity, shall have the exclusive right and
power (but not the obligation) (A) to enter upon and take possession of the
Trust Property or any part thereof, (B) to rent or re-rent the same, either in
the name of Beneficiary or Trustor, and/or (C) to receive all Rents, Issues and
Profits from the Trust Property. Beneficiary shall apply any Rents, Issues and
Profits received by Beneficiary first, to the costs and expenses incurred by
Beneficiary in protecting and operating the Trust Property, and next, to the
payment of the Obligations in such manner and in such order of priority as
Beneficiary shall determine consistent with the provisions of the Indenture. Any
such action by Beneficiary shall not operate as a waiver of the Event of Default
in question, or as an affirmance of any Tenant Leases or of the rights of any
Tenants in the event title to that part of the Trust Property covered by the
Tenant Leases or held by the Tenants should be acquired by Beneficiary or other
purchaser at a foreclosure sale. The right of Beneficiary to receive all Rents,
Issues and Profits from the Trust Property upon the occurrence and during the
continuance of any Event of Default shall be applicable whether or not
Beneficiary has entered upon, foreclosed, taken any actions to foreclose or
taken possession of the Trust Property, whether or not Beneficiary has
instituted any legal proceedings of any kind whatsoever, or whether or not
Beneficiary has otherwise attempted to exercise any other actions or remedies
hereunder or at law or in equity. If any such Rents, Issues and Profits are paid
to or received by Trustor, Trustor shall hold same in trust for Beneficiary and
immediately pay the same to Beneficiary (in the form received, except for any
necessary endorsement), without the necessity of any request or demand therefor.
Until receipt from Beneficiary of notice of the occurrence of an Event of
Default hereunder and during the continuance thereof, all Tenants of the Tenant
Leases and any successors to the leasehold interest of such Tenants may pay
Rents, Issues and Profits directly to Trustor, but after notice of the
occurrence of any Event of Default and during the continuance of same, Trustor
covenants to and shall hold all Rents, Issues and Profits paid to Trustor in
trust for Beneficiary. Trustor hereby authorizes and directs all Tenants of the
Tenant Leases herein described, and any successors to the leasehold interest of
such Tenants, upon receipt of any notice from Beneficiary stating that an Event
of Default hereunder has occurred, to pay to Beneficiary the Rents, Issues and
Profits due and to become due under such Tenant Leases. Trustor agrees that such
Tenants shall have the right to rely upon any such notice and request by
Beneficiary without any obligation or right to inquire as to whether an Event of
19
Default actually exists and notwithstanding any notice from or claim of Trustor
to the contrary, and Trustor shall have no right or claim against the Tenants
for any such Rents, Issues and Profits so paid by the Tenants to Beneficiary. In
such event, receipt by Beneficiary of Rents, Issues and Profits from such
Tenants or their successors shall be a release of such Tenants or their
successors to the extent of all amounts so received by Beneficiary.
(b) Management. Beneficiary, at its option, but subject to the provisions of
Sections 4.8 and 5.30 hereof, may take over and assume the management, operation
and maintenance of the Trust Property and perform all acts necessary and proper
and expend such sums out of the income of the Trust Property as may be needful
in connection therewith, including without limitation applying for appropriate
approvals from the Liquor License Authorities and Gaming Authorities, in the
same manner and to the same extent as Trustor theretofore might do, including
without limitation the right to enter into new leases, to cancel or surrender
existing Tenant Leases, to alter or amend the terms of existing Tenant Leases,
to renew existing Tenant Leases, or to make concessions to Tenants. Trustor
hereby releases all claims against Beneficiary arising out of such management,
operation and maintenance, including without limitation such claims as may arise
from the negligence of Beneficiary, but not the gross negligence or willful
misconduct of Beneficiary and not any liability of Beneficiary to account as
hereinafter set forth.
(c) Receiver. Upon or at any time after the occurrence of an Event of Default,
but subject to the provisions of Sections 4.8 and 5.30 hereof, Beneficiary shall
at once become entitled to the possession, use and enjoyment of the Trust
Property and the Rents, Issues and Profits, from the date of such occurrence and
continuing during the pendency of any proceedings for sale by the public trustee
or foreclosure proceedings, and the period of redemption, if any. Beneficiary
shall be entitled to a receiver for the Trust Property, and of the Rents, Issues
and Profits, after any such default, including without limitation the time
covered by any proceedings for sale by the public trustee or foreclosure
proceedings and the period of redemption, if any. Beneficiary shall be entitled
to such receiver as a matter of right, without regard to the solvency or
insolvency of Trustor, or of the then owner of the Trust Property, and without
regard to the value thereof, and such receiver may be appointed by any court of
competent jurisdiction upon ex parte application, and without notice, notice
being hereby expressly waived. All Rents, Issues and Profits, income and revenue
therefrom shall be applied by such receiver to the payment of the Obligations
according to the orders and directions of the court, or in the absence of such
orders or directions, in the manner set forth in Section 3.7 below.
7. Application of Income. Beneficiary shall, after payment of all proper charges
and expenses, including reasonable compensation to any managing agent as it
shall select and employ, and after the accumulation of a reserve to meet taxes,
assessments and insurance as herein required in requisite amounts, credit the
net amount of income received by it from the Trust Property by virtue of this
absolute assignment to any amounts due and owing to it by Trustor under the
terms hereof, but the manner of the application of such net income and what
items shall be credited shall be determined pursuant to the Indenture, or
otherwise in the sole discretion of Beneficiary. Without impairing its rights
hereunder, Beneficiary may, at its option, at any time and from time to time,
release to Trustor Rents, Issues and Profits received by Beneficiary, or any
portion of such Rents, Issues and Profits. Beneficiary shall not be liable for
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its failure to collect, or its failure to exercise diligence in the collection
of Rents, Issues and Profits, but shall be accountable only for Rents, Issues
and Profits that Beneficiary shall actually receive.
8. Term. This absolute assignment shall remain in full force and effect so
long as the Obligations or any part thereof to Beneficiary remains unpaid or
unsatisfied, in whole or in part.
9. Actions of Trustee. All provisions hereof shall inure to the benefit
of and all actions authorized hereunder shall be exercisable by Trustee at
Beneficiary's request.
ARTICLE 4
DEFAULTS AND REMEDIES
1. Events of Default. An Event of Default shall mean the occurrence of any Event
of Default set forth in Annex A attached hereto.
2. Performance of Defaulted Acts. From and after the occurrence of an Event of
Default, Beneficiary may (without prejudice to its other rights and remedies),
but need not, make any payment or perform any act required of Trustor herein, in
the Indenture or in any other Transaction Document, in each case in any form and
manner deemed expedient, including without limitation making full or partial
payments of principal or interest on prior encumbrances, if any, and purchasing,
discharging, compromising or settling any tax Lien or other prior Lien or title
or claim thereof, or redeeming from any tax sale or forfeiture affecting the
Trust Property or contesting any tax or assessment. All monies paid for any of
the purposes herein authorized and all expenses paid or incurred in connection
therewith, including reasonable attorneys' fees (including reasonable fees of
in-house counsel), shall be included among the Obligations and shall be due and
payable upon demand and with interest thereon from the date of such payment or
expense at the Default Rate. Inaction of Beneficiary shall never be considered
as a waiver of any right accruing to it hereunder on account of any default on
the part of Trustor. Beneficiary, in making any payment hereby authorized
relating to taxes or assessments, may do so according to any bill, statement or
estimate procured from the appropriate public office without inquiry into the
accuracy of such bill, statement or estimate or into the validity of any tax,
assessment, sale, forfeiture, tax Lien or title or claim thereof.
3. Remedies. Upon the occurrence of any Event of Default, Beneficiary may, at
its option (in each case, subject to and in accordance with any applicable terms
of the Indenture and, if applicable, the Intercreditor Agreement):
(a) declare all sums secured hereby to be immediately due and payable, and the
same shall thereupon become immediately due and payable without any presentment,
demand, protest or notice of any kind;
(b) terminate Trustor's right and license to collect the Rents, Issues and
Profits and either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the
adequacy of its security, enter upon and take possession of the Trust Property,
or any part thereof, in its own name or in the name of Trustee, and do any acts
which it deems necessary or desirable to preserve the value, marketability or
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rentability of the Trust Property, or any part thereof or interest therein,
make, modify, enforce, cancel or accept the surrender of any Tenant Lease, take
actions which may affect the income therefrom or protect the security hereof,
and with or without taking possession of the Trust Property, sue for or
otherwise collect the Rents, Issues and Profits, including without limitation
those past due and unpaid, and apply the same, less costs and expenses of
operation and collection, including without limitation attorneys' fees
(including fees of in-house counsel), upon any Obligations secured hereby, all
in such order as Beneficiary may determine in accordance with the Indenture.
From and after receipt of written notice from Beneficiary to pay Rents, Issues
and Profits directly to Beneficiary or another party designated by Beneficiary,
each Tenant shall pay all such payments under its Tenant Lease in the manner
instructed by Beneficiary. The entering upon and taking possession of the Trust
Property or any portion thereof, the collection of the Rents, Issues and Profits
and the application thereof as aforesaid, or any of such acts, shall not cure or
waive any default or notice of default hereunder or invalidate any act done in
response to such default or pursuant to such notice, and notwithstanding the
continuance in possession of the Trust Property or the collection, receipt and
application of the Rents, Issues and Profits, Trustee or Beneficiary shall be
entitled to exercise every right provided for in any of the Indenture, the
Notes, the other Transaction Documents or by law upon the occurrence of any
Event of Default, including without limitation the right to exercise the power
of sale provided herein;
(c) notwithstanding the availability of legal remedies, obtain specific
performance, mandatory or prohibitory injunctive relief, or other equitable
relief requiring Trustor to cure or refrain from repeating any default;
(d) with or without accelerating the maturity of the Obligations, sue from time
to time for any payment due under any of the Indenture, the Notes or the other
Transaction Documents, or for money damages resulting from any Trustor's default
under any of the Indenture, the Notes or the other Transaction Documents;
(e) exercise all rights and remedies set forth in Section 1.5 and all rights of
a secured party under the Uniform Commercial Code;
(f) foreclose this Deed of Trust, insofar as it encumbers the Trust Property, by
way of a trustee's sale pursuant to the provisions of Title 38, Article 38,
Colorado Revised Statutes, as currently in effect, as amended, or in any other
manner then permitted by law. If this Deed of Trust encumbers more than one
parcel of real estate, foreclosure may be by separate parcel or en masse, as
Beneficiary may elect in its sole discretion. Foreclosure through Trustee will
be initiated by Beneficiary's filing of its notice of election and demand for
sale with Trustee. Upon the filing of such notice of election and demand for
sale, Trustee shall promptly comply with all notice and other requirements of
the laws of the State of Colorado then in force with respect to such sales, and
shall give four weeks' public notice of the time and place of such sale by
advertisement weekly in some newspaper of general circulation then published in
the County or City and County in which the Trust Property is located. The right
to foreclose this Deed of Trust as a mortgage by appropriate proceedings in any
court of competent jurisdiction is also hereby given;
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(g) exercise all other rights and remedies provided herein, in the Indenture,
the Notes, the other Transaction Documents or in any other document or agreement
now or hereafter securing all or any portion of the Obligations, or at law or in
equity, or any combination of any such rights or remedies, to the extent
permitted by law.
Upon request by Beneficiary, Trustor shall assemble and make
available to Beneficiary at the Land any of the Trust Property which is not
located on the Land or which has been removed therefrom.
4. Foreclosure.(a) All fees, costs and expenses of any kind incurred by
Beneficiary in connection with foreclosure of this Deed of Trust, including
without limitation the costs of any appraisals of the Trust Property obtained by
Beneficiary, all costs of any receivership for the Trust Property advanced by
Beneficiary, and all reasonable attorneys' fees and consultants' fees incurred
by Beneficiary (including charges of in-house counsel), appraisers' fees,
outlays for documentary and expert evidence, stenographers' charges, publication
costs and costs (which may be estimates as to items to be expended after entry
of the decree) of procuring all such abstracts of title, title searches and
examination, title insurance policies and similar data and assurances with
respect to title, as Trustee or Beneficiary may reasonably deem necessary either
to prosecute such suit or to evidence to bidders at the sales that may be had
pursuant to such proceedings the true conditions of the title to or the value of
the Trust Property, together with and including a reasonable compensation to
Trustee, shall constitute a part of the Obligations and may be included as part
of the amount owing from Trustor to Beneficiary at any foreclosure sale.
(b) The proceeds of foreclosure sale of the Trust Property shall be distributed
and applied in the following order of priority: first, on account of all costs
and expenses incident to the foreclosure proceedings, including without
limitation all such items as are mentioned in Section 4.4(a) hereof; second, to
the payment of all sums expended under the terms hereof not then repaid, with
accrued interest at the Default Rate; third, to the payment of all other
Obligations; and lastly, the remainder, if any, to the person or persons legally
entitled thereto, all in accordance with the Indenture.
(c) In case of an insured loss after judicial foreclosure or Trustee's sale
proceedings have been instituted, the proceeds of any insurance policy or
policies, if not applied to rebuilding or restoring the buildings or
improvements, shall be used to pay the amount due upon the Obligations. In the
event of judicial foreclosure or Trustee's sale, Beneficiary or Trustee is
hereby authorized, without the consent of Trustor, to assign any and all
insurance policies to the purchaser at the sale, or to take such other steps as
Beneficiary or Trustee may deem advisable to cause the interest of such
purchaser to be protected by any of the such insurance policies.
(d) To the fullest extent allowable by law, Trustor hereby expressly waives any
right which it may have to direct the order in which any Trust Property shall be
sold in the event of any sale or sales pursuant to this Deed of Trust.
(e) Nothing in this Section 4.4 dealing with foreclosure procedures or
specifying particular actions to be taken by Beneficiary or by Trustee or any
similar officer shall be deemed to contradict or add to the requirements and
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procedures now or hereafter specified by Colorado law, and any such
inconsistency shall be resolved in favor of Colorado law applicable at the time
of foreclosure.
5. Rescission of Notice of Default. Beneficiary may from time to time withdraw
any notice of election and demand for sale in accordance with Section
38-38-101(11) of the Colorado Revised Statutes. The exercise by Beneficiary of
such right shall not constitute a waiver of any breach or default then existing
or subsequently occurring, or impair the right of Beneficiary to execute and
deliver to Trustee, as above provided, other declarations or notices of default
to satisfy the Obligations under this Deed of Trust or the other Obligations,
nor otherwise affect any provision, covenant or condition of any of the
Indenture, the Notes or the other Transaction Documents or any of the rights,
obligations or remedies of Trustee or Beneficiary hereunder or thereunder.
6. Appointment of Receiver. Trustor waives any right to any hearing or notice of
hearing prior to the appointment of a receiver. Such receiver and its agents
shall be empowered (a) to take possession of the Trust Property and any
businesses conducted by Trustor or any other person (excluding the business of
tenants of Trustor) thereon and any business assets used in connection therewith
and, if the receiver deems it appropriate, to operate the same, (b) to exclude
Trustor and Trustor's agents, servants, and employees from the Trust Property,
(c) to collect the rents, issues, profits, and income therefrom, (d) to complete
any construction which may be in progress, (e) to do such maintenance and make
such repairs and alterations as the receiver deems reasonably necessary, (f) to
use all stores of materials, supplies and maintenance equipment on the Trust
Property, (g) to pay all taxes and assessments against the Trust Property and
all premiums for insurance thereon, (h) to pay all utility and other operating
expenses, and all sums due under any prior or subsequent encumbrance, and (i)
generally to do anything which Trustor could legally do if Trustor were in
possession of the Trust Property. All expenses incurred by the receiver or his
agents shall constitute a part of the Obligations, including without limitation
reasonable attorneys' fees. Any revenues collected by the receiver shall be
applied first to the expenses of the receivership, including reasonable
attorneys' fees incurred by the receiver and by Beneficiary (including charges
of in-house counsel), together with interest thereon at the Default Rate from
the date incurred until repaid, and the balance shall be applied toward the
Obligations or in such other manner as the court may direct. Unless sooner
terminated with the express consent of Beneficiary, any such receivership will
continue until the Obligations have been discharged in full, or until title to
the Trust Property has passed after foreclosure sale and all applicable periods
of redemption have expired.
7. Remedies Not Exclusive; Waiver. Trustee and Beneficiary, and each of them,
shall be entitled to enforce the payment and performance of any Obligations and
to exercise all rights and powers under this Deed of Trust or under any other
Transaction Document or other agreement or any laws now or hereafter in force,
notwithstanding the fact that some or all of the Obligations may now or
hereafter be otherwise secured, whether by mortgage, deed of trust, pledge,
Lien, assignment or otherwise. Neither the acceptance of this Deed of Trust nor
its enforcement, whether by court action or pursuant to the power of sale or
other powers contained herein, shall prejudice or in any manner affect Trustee's
or Beneficiary's right to realize upon or enforce any other rights or security
now or hereafter held by Trustee or Beneficiary. Trustee and Beneficiary, and
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each of them, shall be entitled to enforce this Deed of Trust and any other
rights or security now or hereafter held by Beneficiary or Trustee in such order
and manner as they or either of them may in their absolute discretion determine.
No remedy herein or by law provided or permitted shall be exclusive of any other
remedy, but each shall be cumulative and in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity. Every power or
remedy given by any of the Transaction Documents to Trustee or Beneficiary, or
to which either of them may be otherwise entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by Trustee or Beneficiary, and either of them may pursue inconsistent
remedies. By exercising or by failing to exercise any right, option or election
hereunder, Beneficiary shall not be deemed to have waived any provision hereof
or to have released Trustor from any of the Obligations secured hereby unless
such waiver or release is in writing and signed by Beneficiary. The waiver by
Beneficiary of Trustor's failure to perform or observe any term, covenant or
condition referred to or contained herein to be performed or observed by Trustor
shall not be deemed to be a waiver of such term, covenant or condition on any
other occasion or any subsequent failure of Trustor to perform or observe the
same or any other such term, covenant or condition referred to or contained
herein, and no custom or practice which may develop between Trustor and
Beneficiary during the term hereof shall be deemed a waiver of or in any way
affect the right of Beneficiary to insist upon the performance by Trustor of the
Obligations secured hereby in strict accordance with the terms hereof or any
other Transaction Document.
8. Casino. Trustor acknowledges that part of the Trust Property consists of a
casino and gaming property (the "Casino") which is subject to Gaming Laws and
the jurisdiction of the Gaming Authorities and that, under the applicable Gaming
Laws, the operation of the Casino by a person other than a person properly
licensed by the Gaming Authorities to operate a casino and gaming business (a
"Licensee") is prohibited and may result in the closing of the Casino, the loss
of customers, employees, revenues and good will, and the severe diminution in
the value of the Trust Property, all to the economic jeopardy and extreme
detriment of Beneficiary. In order to mitigate such adverse consequences,
Trustor agrees that, if an Event of Default has occurred, either before or after
seeking an appointment of a receiver, in addition to any other right or remedy
available to Beneficiary hereunder or under applicable law (but subject to any
applicable requirements of the applicable Gaming Laws), (a) Beneficiary shall
have the right (but not the obligation) to solicit any Licensee or other person
with the capacity to become a Licensee to purchase, lease and/or operate the
Casino as a receiver of the Trust Property, as a supervisor of the Casino, as a
purchaser of the Trust Property or Casino at any foreclosure sale, or in any
other appropriate capacity permitted under the applicable Gaming Laws; (b) any
such Licensee or other person and Beneficiary may, to the extent permitted under
the applicable Gaming Laws, apply to and appear before the Gaming Authorities
and any other appropriate authority for a license or a finding of suitability to
permit such Licensee or other person to operate the Casino; and (c) Trustor
shall cooperate fully with any action taken by Beneficiary and any such Licensee
or other person pursuant to this Section 4.8.
9. Multiple Collateral
(a) No recovery of any judgment by Trustee or Beneficiary and no levy of an
execution under any judgment upon the Trust Property or upon any property of
25
Trustor encumbered by any other Collateral Document shall affect in any manner
or to any extent the lien of this Deed of Trust upon the Trust Property or any
part thereof, and any Liens, rights, powers and remedies of Trustee or
Beneficiary shall continue unimpaired until all of the Obligations have been
satisfied and indefeasibly paid in full.
(b) Trustor agrees that it shall not at any time insist upon, plead, seek or in
any manner whatever claim or take any benefit or advantage of a judgment,
declaration or a determination that:
(i) the Trust Property or any other property of Trustor encumbered by a
Transaction Document represents, on an individual basis, an allocable portion of
the then outstanding aggregate principal amount of the Notes or the Obligations;
(ii) the lien of this Deed of Trust or of any other Transaction Document has
been released, unless the Obligations have been satisfied and indefeasibly paid
in full;
(iii) a deficiency judgment with respect to any action taken by Trustee or
Beneficiary against the Trust Property or any other property of Trustor
encumbered by a Transaction Document extinguishes all or any portion of the
remaining Obligations, or precludes Trustee or Beneficiary from proceeding
against the Trust Property or to satisfy such remaining Obligations; or
(iv) Trustee's or Beneficiary's commencement, prosecution, or taking to judgment
of any action (including without limitation Trustee's or Beneficiary's
acceptance of a deed in lieu of foreclosure) or Trustee's or Beneficiary's
application for or use of any remedy (including without limitation the
appointment of a receiver for the Trust Property or any other property of
Trustor encumbered by a Transaction Document) against the Trust Property or any
other property of Trustor encumbered by a Transaction Document precludes or bars
Trustee or Beneficiary (under a "single action" rule, "security first" rule or
similar rule) from commencing, prosecuting or taking to judgment any other
action or applying for or using any remedy against the Trust Property or any
other property of Trustor encumbered by a Transaction Document.
(c) Beneficiary may, at its option, in such order, and utilizing such
combinations of remedies with respect to the Trust Property and/or any other
property of Trustor encumbered by a Transaction Document as Beneficiary shall so
elect, pursue its remedies against (i) the Trust Property, individually, or any
other property of Trustor encumbered by a Transaction Document, individually;
(ii) the Trust Property and any combination of any other property of Trustor
encumbered by a Transaction Document; (iii) the Trust Property and all of the
other property of Trustor encumbered by a Transaction Document; or (iv) all or
any combination of any other property of Trustor encumbered by a Transaction
Document, in separate proceedings or in one proceeding in any order which
Beneficiary deems appropriate.
10. Extensions and Partial Payments. Trustor agrees that, without affecting the
liability of any person for payment of the Obligations or affecting the lien of
this Deed of Trust upon the Trust Property or any part thereof, Beneficiary may
at any time and from time to time, on request of Trustor, without notice to any
26
person liable for payment of any Obligations, extend the time or agree to alter
the terms of payment of all or any part of such Obligations. Acceptance by
Beneficiary of any payment in an amount less than the amount then due on the
Obligations shall be deemed an acceptance on account only, and the failure to
pay the entire amount then due shall continue to be an Event of Default
hereunder. At any time thereafter and until the entire amount then due on the
Obligations has been paid, Beneficiary shall be entitled to exercise all rights
conferred upon it in this Deed of Trust upon the occurrence of an Event of
Default hereunder.
11. Protective Advances. All advances, disbursements and expenditures made or
incurred by Beneficiary before and during a foreclosure, and before and after
judgment of foreclosure, and at any time prior to sale and, where applicable,
after sale, and during the pendency of any related proceedings, for the
following purposes, in addition to those otherwise authorized by this Deed of
Trust or by applicable law (collectively "Protective Advances"), shall have the
benefit of all applicable provisions of law, including without limitation those
referred to below:
(a) all advances by Beneficiary in accordance with the terms of this Deed of
Trust to: (i) preserve, maintain or repair any Trust Property, or restore or
rebuild the improvements upon the Trust Property; (ii) preserve the lien of this
Deed of Trust or the priority hereof; or (iii) enforce this Deed of Trust;
(b) payments by Beneficiary of: (i) principal, interest or other obligations in
accordance with the terms of any prior Lien or encumbrance on the Trust
Property; (ii) real estate taxes and assessments, general and special and other
taxes and assessments of any kind or nature whatsoever that are assessed or
imposed upon the Trust Property or any part thereof; (iii) amounts in connection
with any Tenant Lease pursuant to Section 4.3 hereof; (iv) other obligations
authorized by this Deed of Trust; or (v) any other amounts in connection with
other Liens, encumbrances or interests reasonably necessary to preserve the
status of title to the Trust Property;
(c) advances by Beneficiary in settlement or compromise of any claims asserted
by claimants under any prior Liens;
(d) reasonable attorneys' fees and other costs incurred (including charges for
in-house counsel): (i) in connection with a judicial foreclosure or trustee's
sale; (ii) in connection with any action, suit or proceeding brought by or
against Beneficiary for the enforcement of this Deed of Trust or arising from
the interest of Beneficiary hereunder; or (iii) in preparation for or in
connection with the commencement, prosecution or defense of any other action
that could materially adversely affect the lien of this Deed of Trust or the
Trust Property;
(e) expenses deductible from proceeds of sale; and
(f) expenses incurred and expenditures made by Beneficiary for any one or more
of the following: (i) premiums for casualty and liability insurance paid by
Beneficiary (whether or not Beneficiary or a receiver is in possession) and all
renewals thereof; (ii) repair or restoration of damage or destruction in excess
of available insurance proceeds or condemnation awards; (iii) payments deemed by
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Beneficiary to be required for the benefit of the Trust Property or required to
be made by the owner of the Trust Property under any grant or declaration of
easement, easement agreement, agreement with any adjoining land owners or
instruments creating covenants or restrictions for the benefit of or affecting
the Trust Property; (iv) shared or common expense assessments payable to any
association or corporation in which the owner of the Trust Property is a member
in any way affecting the Trust Property; and (v) any costs incurred in
connection with obtaining approvals and licenses from Gaming Authorities
including investigation costs.
All Protective Advances shall be additional Obligations
secured by this Deed of Trust and shall become immediately due and payable upon
demand and with interest thereon from the date of the advance until paid at the
Default Rate. This Deed of Trust shall be a lien for all Protective Advances as
to subsequent purchasers and judgment creditors from the time this Deed of Trust
is recorded.
All Protective Advances shall, except to the extent, if any,
that any of the same is clearly contrary to or inconsistent with the applicable
provisions of law, apply to and be included in: (a) any determination of the
amount of indebtedness secured by this Deed of Trust at any time; (b) the
indebtedness found due and owing to Beneficiary in the judgment of foreclosure
and any subsequent supplemental judgments, orders, adjudications or findings by
the court of any additional indebtedness becoming due after such entry of
judgment, it being agreed that in any foreclosure judgment, the court may
reserve jurisdiction for such purpose; and (c) application of income in the
hands of any receiver or mortgagee in possession.
12. Environmental Matters. The provisions of that certain Environmental
Indemnity, dated as of the date hereof, by Trustor and RHC in favor of
Beneficiary are hereby incorporated by reference herein with the same force
and effect as if set forth herein.
13. Appointment as Attorney-in-Fact. Trustor constitutes and appoints
Beneficiary as Trustor's attorney-in-fact, at Beneficiary's election, with full
authority in the place and stead of Trustor and in the name of Trustor,
Beneficiary or otherwise, from time to time after the occurrence of an Event of
Default, to perform any action and to execute and record any instrument deemed
necessary, advisable or incidental to accomplish the purposes of this Deed of
Trust, including without limitation in connection with exercising remedies and
effectuating the actions described in this Article 4, in each instance only to
the extent Trustor has failed to comply with the provisions of this Deed of
Trust. Such appointment is irrevocable and coupled with an interest until
payment in full and complete performance of all the Obligations. Beneficiary may
appoint a substitute attorney-in-fact. Trustor ratifies all actions taken by the
attorney-in-fact but, nevertheless, if Beneficiary requests, Trustor will
specifically ratify any action taken by the attorney-in-fact by executing and
delivering to the attorney-in-fact or to any entity designated by the
attorney-in-fact all documents necessary to effect such ratification.
ARTICLE 5
GENERAL PROVISIONS
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1. Extension; Release. The lien hereof shall remain in full force and effect
during any postponement or extension of the time of payment of the Obligations,
or of any part thereof, and any number of extensions or modifications hereof, or
any renewals, modifications, extensions, replacements or substitutions of the
Notes or any additional notes taken by Beneficiary or any Holder, shall not
affect the lien hereof or the liability of Trustor or of any subsequent obligor
to pay the Obligations, unless and until such lien or liability shall have been
expressly released in writing by Beneficiary by proper instrument in accordance
with the terms of the Indenture. Upon written request from Beneficiary, Trustee
shall fully reconvey, without warranty, this Deed of Trust and the lien hereof
by proper instrument in accordance with the terms of the Indenture. The recitals
in any such reconveyance of any matters or facts shall be conclusive proof of
the truthfulness thereof. The grantee in such reconveyance may be described as
"the person or persons legally entitled thereto." Beneficiary shall have no
obligation to record any release instrument.
2. Trustor. This Deed of Trust and all provisions hereof, shall extend to and be
binding upon Trustor and all persons claiming under or through Trustor. Whenever
in this Deed of Trust there is reference made to any of the parties hereto, such
reference shall be deemed to include, wherever applicable, a reference to the
heirs, executors and administrators or successors and assigns (as the case may
be) of Trustor, Trustee and Beneficiary. Trustor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession of or
for such Trustor.
3. Additional Documents. Trustor agrees that upon request of Beneficiary it will
from time to time and at its expense execute, acknowledge and deliver all such
additional instruments and further assurances of title and will do or cause to
be done all such further acts and things as may be reasonably necessary or
desirable to fully protect, preserve, perfect and maintain the security of
Beneficiary hereunder and otherwise effectuate the intent of this Deed of Trust.
4. Statute of Limitations. To the fullest extent allowed by law, the right to
plead, use or assert any statute of limitations as a plea or defense or bar of
any kind, or for any purpose, to any debt, demand or obligation secured or to be
secured hereby, or to any complaint or other pleading or proceeding filed,
instituted or maintained for the purpose of enforcing this Deed of Trust or any
rights hereunder, is hereby waived by Trustor.
5. Severability. The invalidity of any one or more covenants, phrases, clauses,
sentences or paragraphs of this Deed of Trust shall not affect the remaining
portions of this Deed of Trust or any part thereof, and the same shall be
construed as if such invalid covenants, phrases, clauses, sentences or
paragraphs, if any, had not been inserted herein. If the lien of this Deed of
Trust is invalid or unenforceable as to any part of the Obligations secured
hereby, or if the lien is invalid or unenforceable as to any part of the Trust
Property, the unsecured or partially secured portion of such Obligations shall
be completely paid prior to the payment of the remaining and secured or
partially secured portion of such Obligations, and all payments made on such
Obligations, whether voluntary or under foreclosure, trustee's sale, or other
enforcement action or procedure, shall be considered to have been first paid on
and applied to the full payment of that portion of such indebtedness which is
not secured or fully secured by the lien of this Deed of Trust.
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6. Interaction with Indenture
(a) Incorporation by Reference. Any capitalized term used in this Deed of Trust
without definition, but defined in the Indenture, shall have the same meaning
here as in the Indenture.
(b) Conflicts. Notwithstanding any other provision of this Deed of Trust to the
contrary, the terms and provisions of this Deed of Trust shall be subject and
subordinate to the terms of the Indenture. To the extent that the Indenture
provides Trustor with a particular cure or notice period, or establishes any
limitations or conditions on Beneficiary's actions with regard to a particular
set of facts, Trustor shall be entitled to the same cure periods and notice
periods, and Beneficiary shall be subject to the same limitations and
conditions, under this Deed of Trust, as under the Indenture, in place of the
cure periods, notice periods, limitations and conditions provided for under this
Deed of Trust; provided, however, that such cure periods, notice periods,
limitations and conditions shall not be cumulative as between the Indenture and
this Deed of Trust. In the event of any conflict or inconsistency between the
provisions of this Deed of Trust and those of the Indenture, including without
limitation any conflicts or inconsistencies in any definitions herein or
therein, the provisions or definitions of the Indenture shall govern.
7. Other Collateral. This Deed of Trust is one of a number of security
agreements to secure the debt delivered by or on behalf of Trustor pursuant to
the Indenture and the other Collateral Documents and securing the Obligations
secured hereunder. All potential junior Lien claimants are placed on notice
that, under any of the Collateral Documents or otherwise (such as by any
separate future unrecorded agreement between Trustor and Beneficiary), other
collateral for the Obligations secured hereunder (i.e., collateral other than
the Trust Property) may, under certain circumstances, be released without a
corresponding reduction in the total principal amount secured by this Deed of
Trust. Such a release would decrease the amount of collateral securing the same
indebtedness, thereby increasing the burden on the remaining Trust Property
created and continued by this Deed of Trust. No such release shall impair the
priority of the lien of this Deed of Trust. By accepting its interest in the
Trust Property, each and every junior Lien claimant shall be deemed to have
acknowledged the possibility of, and consented to, any such release. Nothing in
this paragraph shall impose any obligation upon Beneficiary.
8. Notices. All notices and other communications under this Deed of Trust
shall be in writing, except as otherwise provided in this Deed of Trust. A
notice, if in writing, shall be considered as properly given if given in
accordance with the provisions of Annex B attached hereto.
9. No Waiver of Remedies. By accepting payment of any amount secured hereby
after its due date, or an amount which is less than the amount then due, or
performance of any obligation required hereunder after the date required for
such performance, Beneficiary does not waive its right to require prompt payment
or performance when due of all other amounts or obligations so secured or to
declare a default by reason of the failure to so pay or perform.
10. Trustee's Powers. At any time or from time to time without liability
therefor and without notice to Trustor, upon written request of Beneficiary and
presentation of the original or certified copies of this Deed of Trust, and
30
without affecting the personal liability of any person for payment of the
Obligations secured hereby or the effect of this Deed of Trust upon the
remainder of the Trust Property, Trustee may (a) release any part of the Trust
Property, (b) consent in writing to the making of any map or plat of all or any
part of the Property, (c) join in granting any easement on any part of the Trust
Property, or (d) join in any extension agreement or any agreement subordinating
the lien or charge of this Deed of Trust.
11. Beneficiary's Powers. Without affecting the liability of Trustor or any
other person liable for the payment of any Obligation secured hereby, and
without affecting the lien or charge of this Deed of Trust upon any portion of
the Trust Property not then or theretofore released as security for the full
amount of all unpaid Obligations, Beneficiary may, from time to time and without
notice (a) release any person so liable, (b) extend the maturity or alter any of
the terms of any such obligation, or join in any agreement modifying the terms
of the Indenture or any Transaction Document, (c) waive any provision hereof or
grant other indulgences, (d) release or reconvey, or cause to be released or
reconveyed, at any time at Beneficiary's option, all or any part of the Trust
Property, (e) take or release any other or additional security for any
obligation herein mentioned, (f) make compositions or other arrangements with
debtors in relation thereto, or (g) subordinate the lien or charge of this Deed
of Trust.
12. Additional Security. If Beneficiary at any time holds additional security
for any of the Obligations secured hereby, all such security shall be taken,
considered and held as cumulative, and Beneficiary may enforce the sale thereof
or otherwise realize upon the same, at its option, either before or concurrently
with the exercise of any of its rights or remedies hereunder or after a sale is
made hereunder. The taking of additional security, execution of partial releases
of the security, or any extension of the time of payment of the indebtedness
secured hereby shall not diminish the force, effect or impair the liability of
any maker, surety or endorser for the payment of any such indebtedness.
13. Captions. The captions or headings at the beginning of each Section hereof
are for the convenience of the parties and are not to be construed as a part
of this Deed of Trust.
14. Trust Irrevocable; No Offset. The Trust created hereby is irrevocable by
Trustor. No offset or claim that Trustor now has or may in the future have
against Beneficiary or Trustee shall relieve Trustor from paying the amounts
or performing the Obligations contained herein or secured hereby.
15. Corrections. Trustor shall, upon request of Trustee, promptly correct any
defect, error or omission which may be discovered in the contents of this Deed
of Trust or in the execution or acknowledgment hereof, and will execute,
acknowledge and deliver such further instruments and do such further acts as may
be necessary or as may be reasonably requested by Trustee to carry out more
effectively the purposes of this Deed of Trust, to subject to the lien and
security interest hereby created any of Trustor's properties, rights or interest
covered or intended to be covered hereby, and to perfect and maintain such lien
and security interest.
16. Attorneys' Fees. All references to "attorneys' fees" in this Deed of Trust
shall include, without limitation, such reasonable amounts as may then be
charged by Beneficiary for legal services furnished by attorneys in the employ
31
of Beneficiary (including reasonable charges for in-house counsel).
17. Amendments. This Deed of Trust cannot be waived, changed, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, discharge or termination
is sought.
18. Acceptance by Trustee. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made a public record as provided by
law.
19. Authorization to Rely. Trustee, upon presentation to it of an affidavit
signed by or on behalf of Beneficiary setting forth any fact or facts showing a
default by Trustor under any of the terms or conditions of this Deed of Trust,
is authorized to accept as true and conclusive all facts and statements in such
affidavit and to act hereunder in complete reliance thereon.
20. GOVERNING LAW. THIS DEED OF TRUST, THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING,
WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
EXCEPT THAT, FOR PURPOSES OF DETERMINING THE CREATION, VALIDITY, PRIORITY AND
ENFORCEMENT OF THE LIEN CREATED HEREBY AND THE EXERCISE OF REMEDIES HEREUNDER IN
CONNECTION WITH SUCH LIEN, THE LAWS OF THE STATE OF COLORADO SHALL GOVERN.
21. Time of Essence. Time is of the essence of this Deed of Trust and of every
part hereof of which time is an element.
22. Future Advances. To the extent Beneficiary may make advances pursuant hereto
or to the terms of the Indenture, the parties hereto acknowledge and intend that
all such advances, if any, whenever hereafter made, shall be secured by this
Deed of Trust with the same priority as the initial amounts advanced and secured
by this Deed of Trust.
23. Actions by Beneficiary to Preserve. Should an Event of Default occur,
Beneficiary, in its own discretion, without obligation so to do and without
further notice to or demand upon Trustor and without releasing Trustor from any
Obligation, may make or do the same in such manner and to such extent as it may
deem necessary or desirable to protect the security hereof. In connection
therewith (without limiting Beneficiary's general powers), Beneficiary shall
have and is hereby given the right, but not the obligation (a) to enter upon and
take possession of the Trust Property, (b) to make additions, alterations,
repairs and improvements to the Trust Property which it may consider necessary,
desirable or proper to keep the Trust Property in good condition and repair the
same as needed, (c) to appear and participate in any action or proceeding
affecting or which may affect the security hereof or the rights or powers of
Beneficiary hereunder, (d) to pay, purchase, contest or compromise any
encumbrance, claim, charge, Lien or debt which in the judgment of Beneficiary
may affect or appear to affect the security of this Deed of Trust or be or
appear to be prior or superior hereto, and (e) in exercising such powers, to pay
32
necessary expenses and employ necessary or desirable consultants including
without limitation in connection with applying for gaming approvals under
applicable Gaming Laws and approvals for transfers of ownership for any Liquor
License.
24. Reimbursement. Trustor shall pay immediately upon demand all sums expended
for expenses paid or incurred by Beneficiary, including without limitation court
costs, expenses for evidence of title, appraisals and surveys, license fees,
trustees' fees and reasonable attorneys' fees (including charges for in-house
counsel), under any of the terms of this Deed of Trust, including without
limitation the provisions of Section 5.22 hereof, together with interest on the
amount of each expenditure from the date of such expenditure at the Default
Rate.
25. Usury Savings Clause. It is the intention of the parties to conform strictly
to the usury laws, whether state or federal, that are applicable to the
transaction of which this Deed of Trust is a part. All agreements between
Trustor, or either of them, and Beneficiary, whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever shall the amount paid or agreed to be paid by
Trustor for the use, forbearance or detention of the money to be loaned or
advanced under the Indenture, the Notes, this Deed of Trust, any other
Collateral Document, or any other agreement or instrument relating thereto, or
for the payment or performance of any covenant or obligation contained herein or
therein, exceed the maximum amount permissible under applicable federal or state
usury laws. If under any circumstances whatsoever fulfillment of any such
provision, at the time performance of such provision shall be due, shall involve
exceeding the limit of validity prescribed by law, then the obligation to be
fulfilled shall be reduced to the limit of such validity. If under any
circumstances Trustor shall have paid an amount deemed interest by applicable
law, which would exceed the highest lawful rate, such amount that would be
excessive interest under applicable usury laws shall be applied to the reduction
of the principal amount owing in respect of the Obligations and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal and any other amounts due hereunder, the excess shall be refunded to
Trustor. All sums paid or agreed to be paid for the use, forbearance or
detention of the principal under any extension of credit or advancement of funds
by Beneficiary or any Holder shall, to the extent permitted by applicable law,
and to the extent necessary to preclude exceeding the limit of validity
prescribed by law, be amortized, prorated, allocated and spread from the date of
the Indenture until payment in full of the Obligations so that the actual rate
of interest on account of such principal amounts is uniform throughout the term
hereof.
26. Jurisdiction and Venue At the sole option of Beneficiary, any action
concerning this Deed of Trust or any other Transaction Document may be brought
in the Colorado District Court for the County in which the Beneficiary is
located or in the United States District Court for the District of Colorado, and
Trustor consents to venue and personal jurisdiction with respect thereto.
27. Waiver of Jury Trial. Trustor hereby waives any right to jury trial
of any claim, cross-claim or counter-claim relating to or arising out of
or in connection with this Deed of Trust and/or any of the other Transaction
Documents.
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28. Waiver of Homestead and Other Exemptions. To the extent permitted by law,
Trustor hereby waives all rights to any homestead or other exemption to which
Trustor would otherwise be entitled under any present or future constitutional,
statutory, or other provision of applicable state or federal law.
29. Gaming Laws. The grant of, and terms and provisions of, this Deed of Trust,
including, but not limited to, all rights and remedies of Beneficiary and powers
of attorney and appointment, are expressly subject to all laws, statutes,
regulations and orders affecting limited gaming or the sale of liquor
(collectively, the "Gaming Laws"), in the State of Colorado, which may include,
but not be limited to, the necessity for Beneficiary to obtain the prior
approval of the regulatory agencies enforcing the Gaming Laws before taking any
action hereunder and to be licensed by such regulatory agencies before
exercising certain rights and remedies hereunder.
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IN WITNESS WHEREOF, Xxxxxxx has duly executed and delivered
this Deed of Trust to Public Trustee, Security Agreement, Fixture Filing and
Assignment of Rents, Leases and Leasehold Interests (Xxxxxx County, Colorado) as
of the day and year first written above.
RIVIERA BLACK HAWK, INC.,
a Colorado corporation
By:______________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF ______________ )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this __ day
of ________, 2002, by _______________ and _______________ as _______________ and
_______________, respectively, of _______________, a
WITNESS my hand and official seal.
My commission expires _________________________________.
Exhibit A
(Attached to and forming a part of the Deed of Trust to Public
Trustee, Security Agreement, Fixture Filing and Assignment
of Rents, Leases and Leasehold Interests, dated June 26,
2002 to the Public Trustee of the County of Xxxxxx, Colorado,
from Riviera Black Hawk, Inc., for the benefit of The Bank of
New York, in its capacity as trustee)
LEGAL DESCRIPTION
ANNEX A
(Attached to and forming a part of the Deed of Trust
to Public Trustee, Security Agreement, Financing
Statement and Assignment of Rents and Leases, dated June
26, 2002 to the Public Trustee of the County of Xxxxxx,
Colorado, from Riviera Black Hawk, Inc. for the benefit
of The Bank of New York, in its capacity as trustee)
DEFINED TERMS
"Business Day" means any day other than Saturday, Sunday or any other
day on which bank institutions in the State of Colorado or the City of New York
are authorized by law, regulation or executive order to remain closed.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
-------------
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Collateral Documents" means, collectively, the Deed of Trust to Public
Trustee, Security Agreement, Fixture Filing and Assignment of Rents, Leases and
Leasehold Interests by the Company to the Public Trustee of the County of
Xxxxxx, Colorado, the Assignment of Leases and Rents by the Company for the
benefit of the Beneficiary, the Deed of Trust, Assignment of Rents, Leases,
Fixture Filing and Security Agreement, by RHC in favor of Trustee, the Security
Agreement by RHC, ROC, RGM, RGMC, and the Company to First American Title
Insurance Company for the benefit of the Beneficiary, the Stock Pledge and
Security Agreement by and between RHC and Beneficiary, the Stock Pledge and
Security Agreement by and between ROC and Beneficiary, the Stock Pledge and
Security Agreement by and between RGM and Beneficiary, the Stock Pledge and
Security Agreement by and between RGMC and Beneficiary, the Collateral
Assignment of Trademarks by and among RHC, ROC, and the Company in favor of the
Beneficiary, the Environmental Indemnity Agreement by and between RHC and the
Beneficiary, the Environmental Indemnity Agreement by and among the Company and
RHC and the Beneficiary, Uniform Commercial Code financing statements and
fixture filings, and any other agreements, instruments, documents, pledges or
filings that evidence, set forth or limit the Lien of the Trustee and/or the
Beneficiary in the Collateral (as such terms are defined in the Indenture).
"Deed of Trust" has the meaning given in the introductory paragraph.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Environmental Indemnity" means the Environmental Indemnity, dated as
of the date of the Indenture, by RHC and Trustor in favor of the Beneficiary.
"Event of Default" shall have the meaning given in the Indenture.
"FF&E" means furniture, fixtures or equipment used in the ordinary
course of the business of the Company and its Subsidiaries.
"FF&E Financing" means the incurrence of Indebtedness, the proceeds of
which are utilized solely to finance or refinance the acquisition of (or entry
into a capital lease by the Company or a Subsidiary with respect to) FF&E.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States of America or foreign government, any state, province or any
city or other political subdivision, whether now or hereafter existing, or any
officer or official thereof, including without limitation, the Colorado Division
of Gaming, the Colorado Limited Gaming Control Commission and any other agency
with authority to regulate any gaming operation (or proposed gaming operation)
owned, managed or operated by the Company or any of its Subsidiaries.
"Gaming License" means every material license, franchise or other
authorization required to own, lease, operate or otherwise conduct gaming
activities of the Company or any of its Subsidiaries, including without
limitation all such licenses granted under the Colorado Limited Gaming Act of
1991, as amended and the regulations promulgated thereunder, and other
applicable federal, state, foreign or local laws.
"Governmental Authority" means any nation or government, any state,
municipality or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including without limitation the Colorado Division of
Gaming and the Colorado Limited Gaming Control Commission.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Holders" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect
thereof);
(3) banker's acceptances;
(4) representing Capital Lease Obligations;
(5) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued
expense or trade payable, or
(6) representing any Hedging Obligations (as defined in the
Indenture),
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
(2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Liquor License" means any license, permit, franchise or other
authorization from any Liquor Licensing Authority necessary on the date of the
Indenture or at any time thereafter to own, lease, operate or otherwise conduct
the retail, restaurant or other entertainment facilities of the Company or any
of its Wholly Owned Restricted Subsidiaries in the manner described in the
Offering Circular.
"Liquor Licensing Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of the United States federal government, any foreign government, any
state, province or city or other political subdivision or otherwise, whether now
or hereafter in existence, including the Colorado Liquor Enforcement Division
and the City of Black Hawk Liquor Licensing Authority and any other applicable
liquor licensing regulatory authority with authority to regulate any Liquor
Licensed operation (or proposed Liquor Licensed operation) owned, managed or
operated by the Company, RHC, ROC, RGMC or any of their respective Subsidiaries.
"Obligations" shall have the meaning attributed to it in Section 1.3.
"Offering Circular" means the Offering Circular of Xxxxxxxxx & Company,
Inc. dated June 19, 2002.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Beneficiary, that meets the requirements of Section
10.04 of the Indenture. The counsel may be an employee of or counsel to either
the Issuers or the Trustee.
"Permitted Dispositions" means the sale, transfer, lease or other
disposition of assets in the Trust Property, in the ordinary course of business,
of inventory held in the ordinary course of business and other sales, transfers,
or other dispositions of assets in the Trust Property in the ordinary course of
business; provided that all provisions of the Indenture are complied with,
including, without limitation, Sections 4.10, 4.16, 10.03 and 10.04.
"Permitted Liens" means:
---------------
(1) Liens on specific assets of RHC and any Guarantor securing
Indebtedness and other Obligations under Revolving Credit Facilities that were
permitted by the terms of the Indenture to be incurred;
(2) Liens on the assets of the RHC and the Guarantors created by
the Indenture and the Collateral Documents securing the Notes and Guarantees;
(3) Liens in favor of the RHC or the Guarantors;
(4) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the RHC or any Subsidiary of the RHC;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the RHC or the Subsidiary;
(5) Liens on property existing at the time of acquisition of the
property by the RHC or any Subsidiary of the RHC, provided that such Liens were
in existence prior to the contemplation of such acquisition;
(6) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business;
(7) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by Section 4.09(b)(3) of the Indenture covering only the assets
acquired with such Indebtedness;
(8) Liens existing on the date of the Indenture;
(9) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;
(10) Liens incurred in the ordinary course of business of the RHC or
any Subsidiary of the RHC with respect to obligations that do not exceed $2.5
million at any one time outstanding;
(11) Liens on assets of Unrestricted Subsidiaries that secure Non-
Recourse Debt of Unrestricted Subsidiaries;
(12) leases, subleases, easements, licenses and rights of way not in
existence on the date of the Indenture and not interfering in any material
respect with the ordinary conduct of the business of the RHC or any of its
Subsidiaries and not impairing in any material respect the value of the
Collateral; and
(13) Liens on any leasehold interest in the Collateral granted by the
RHC as permitted by the Indenture, which Liens do not encumber the fee interest
in the Collateral, are subordinate to the Liens created by the Collateral
Documents and do not otherwise impair the value of the Collateral.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"RGM" means Riviera Gaming Management, Inc., a Nevada corporation.
"RGMC" means Riviera Gaming Management of Colorado, Inc., a Colorado
corporation.
"RHC" has the meaning set forth in the recitals.
"ROC" means Riviera Operating Company, a Nevada corporation.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any
combination thereof).
"Unrestricted Subsidiary" shall have the meaning given in the
Indenture.
"Wholly Owned Restricted Subsidiary" of any specified Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
ANNEX B
(Attached to and forming a part of the Deed of Trust
to Public Trustee, Security Agreement, Fixture
Filing and Assignment of Rents, Leases and Leasehold
Interests, dated June 26, 2002 to the Public Trustee
of the County of Xxxxxx, Colorado, from Riviera Black
Hawk, Inc., and for the benefit of The Bank of New
York, in its capacity as trustee)
NOTICE PROVISION
Any notice or communication authorized or required to be given or
furnished under this Deed of Trust is duly given if in writing and delivered in
person or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to Trustor:
Riviera Black Hawk, Inc.
c/o Riviera Holdings Corporation
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: President
With a copy to:
Xxxxxx & Silver, Ltd.
Ninth Floor
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
If to the Beneficiary:
The Bank of New York
Corporate Trust Administration
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
The Trustor or the Beneficiary, by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
Anything herein to the contrary notwithstanding, no notice or
communication to the Beneficiary shall be deemed to be duly given unless and
until it is received by the Beneficiary at the address set forth in Annex B
herein.
TABLE OF CONTENTS
ARTICLE 1 GRANT OF DEED OF TRUST......................................2
1. Grant of Deed of Trust..............................2
2. Status of Title; Defense of Actions and Costs.......8
3. Obligations Secured.................................9
4. After-Acquired Property............................10
5. Security Agreement; Fixture Filing.................10
ARTICLE 2 COVENANTS CONCERNING THE TRUST PROPERTY....................11
1. Taxes and Governmental Impositions.................11
2. Mechanic's and Other Liens; Subrogation............13
3. Utilities..........................................14
4. Insurance..........................................14
5. Condemnation.......................................14
6. Restoration........................................14
7. Care of the Trust Property.........................14
8. Future Tenant Leases...............................15
9. Further Encumbrance................................16
10. Partial Releases of Trust Property.................17
ARTICLE 3 ASSIGNMENT OF LEASES AND RENTS.............................17
1. Assignment of Leases and Rent......................18
2. Trustor's Limited License..........................18
3. Limitation.........................................18
4. Performance by Trustor.............................18
5. No Merger of Leases................................18
6. Remedies...........................................19
7. Application of Income..............................20
i
8. Term...............................................21
9. Actions of Trustee.................................21
ARTICLE 4 DEFAULTS AND REMEDIES......................................21
1. Events of Default..................................21
2. Performance of Defaulted Acts......................21
3. Remedies...........................................21
4. Foreclosure........................................23
5. Rescission of Notice of Default....................24
6. Appointment of Receiver............................24
7. Remedies Not Exclusive; Waiver.....................24
8. Casino.............................................25
9. Multiple Collateral................................25
10. Extensions and Partial Payments....................26
11. Protective Advances................................27
12. Environmental Matters..............................28
13. Appointment as Attorney-in-Fact....................28
ARTICLE 5 GENERAL PROVISIONS.........................................28
1. Extension; Release.................................29
2. Trustor............................................29
3. Additional Documents...............................29
4. Statute of Limitations.............................29
5. Severability.......................................29
6. Interaction with Indenture.........................30
7. Other Collateral...................................30
8. Notices............................................30
9. No Waiver of Remedies..............................30
ii
10. Trustee's Powers...................................30
11. Beneficiary's Powers...............................31
12. Additional Security................................31
13. Captions...........................................31
14. Trust Irrevocable; No Offset.......................31
15. Corrections........................................31
16. Attorneys' Fees....................................31
17. Amendments.........................................32
18. Acceptance by Trustee..............................32
19. Authorization to Rely..............................32
20. GOVERNING LAW......................................32
21. Time of Essence....................................32
22. Future Advances....................................32
23. Actions by Beneficiary to Preserve.................32
24. Reimbursement......................................33
25. Usury Savings Clause...............................33
26. Jurisdiction and Venue.............................33
27. Waiver of Jury Trial...............................33
28. Waiver of Homestead and Other Exemptions...........34
29. Gaming Laws........................................34
iii
