Recording Requested By and recorded counterparts should be returned to:
Xxxxxxx X. Xxxx
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
DEED OF TRUST, ASSIGNMENT OF RENTS, LEASES, FIXTURE FILING AND
SECURITY AGREEMENT
MADE BY
RIVIERA HOLDINGS CORPORATION
a Nevada corporation,
as Trustor,
to
UNITED TITLE OF NEVADA
a Nevada corporation,
as Trustee,
for the benefit of
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
collateral agent,
as Beneficiary
********************************************************************************
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF XXXXX COUNTY,
NEVADA UNDER THE NAMES OF RIVIERA HOLDINGS CORPORATION AS DEBTOR AND NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, AS SECURED PARTY.
DEED OF TRUST, ASSIGNMENT OF RENTS, LEASES, FIXTURE FILING AND
SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, LEASES, FIXTURE FILING AND
SECURITY AGREEMENT (hereinafter called "Deed of Trust") is made and effective as
of August 13, 1997, by RIVIERA HOLDINGS CORPORATION, a Nevada corporation, as
Trustor, whose address is 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx
00000, to UNITED TITLE OF NEVADA, a Nevada corporation, whose address is 0000
Xxxxxx Xxxxxx Xxxxxxx, #000, Xxx Xxxxx, Xxxxxx 00000, as Trustee, for the
benefit of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as collateral agent
under that certain Indenture dated as of even date herewith among Norwest Bank
Minnesota, National Association, as trustee, Trustor as issuer, and the
Guarantors (as defined below), whose address is 6th and Marquette, Xxxxxxxxxxx,
Xxxxxxxxx 00000 ("Beneficiary").
DEFINITIONS - As used in this Deed of Trust, the following terms
have the meanings hereinafter set forth:
"Account Agreement" means that Restricted Account Agreement which
shall be entered into by and between Trustor, Beneficiary and the U.S. Bank of
Nevada.
"Appurtenant Rights" means all and single tenements,
hereditaments, rights, reversions, remainders, development rights, privileges,
benefits, easements (in gross or appurtenant), rights-of-way, gores or strips of
land, streets, ways, alleys, passages, sewer rights, water courses, water rights
and powers, and all appurtenances whatsoever and claims or demands of Trustor at
law or in equity in any way belonging, benefitting, relating or appertaining to
the Land, the airspace over the Land, the Improvements or any of the Trust
Estate encumbered by this Deed of Trust, or which hereinafter shall in any way
belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Trustor.
"Bankruptcy" means, with respect to any Person, that such Person
is or becomes bankrupt or Insolvent or: (a) is the subject of any order for
relief under any Bankruptcy Law; (b) commences a voluntary proceeding under any
Bankruptcy Law; (c) consents to the entry of an order for relief in an
involuntary proceeding under any Bankruptcy Law; (d) consents to the appointment
of, or taking possession by any Receiver; (e) makes any assignment for the
benefit of creditors; (f) is unable or fails, or admits in writing its
inability, to pay its debts as such debts become due; (g) is the subject of any
involuntary proceeding under any Bankruptcy Law or involuntary appointment of a
Receiver, and such involuntary proceeding or appointment is not dismissed and
terminated within 60 days; (h) is the subject of any other proceeding or relief
similar to any of the foregoing under any law; (i) is the subject of a warrant
of attachment, execution, or similar process with respect to such Person or any
substantial part of such Person's property, which warrant or similar process
remains in effect for sixty days without having been bonded or discharged; or
(j) otherwise ceases to do business as a going concern.
"Beneficiary" means Norwest Bank Minnesota, National Association,
as the collateral agent under the Indenture and any additional or substitute
collateral agent designated from time to time under the Indenture.
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which banking institutions in the State of Nevada or the City of New York
are authorized by law, regulation or executive order to remain closed.
1
"Collateral Documents" means this Deed of Trust, the Security
Agreement, the Stock Pledge Agreement, and the Account Agreement, together with
any similar documents executed after the date hereof pursuant to Section 4.18 of
the Indenture.
"Deed of Trust" means this Deed of Trust as it may be amended,
increased or modified from time to time.
"Environmental Laws" means any and all laws and Legal Requirements
relating to environmental matters, pollution, or hazardous substances,
including: the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. xx.xx. 9601-9657; the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. xx.xx. 6901 et seq.; the Hazardous Materials
Transportation Act (49 U.S.C. xx.xx. 1801 et seq.); the Nevada Hazardous
Materials Act (NRS Chapter 459); any other Laws that may form the basis of any
claim, action, demand, suit, proceeding, hearing, or notice of violation that is
based on or related to the generation, manufacture, processing, distribution,
use, existence, treatment, storage, disposal, transport, or handling, or the
emission, discharge, release, or threatened release into the environment, of any
hazardous substance, or other threat to the environment.
"Event of Default" has the meaning set forth in Section 3.1
hereof.
"Excluded Assets" means (i) any accounts, as such term is defined
in Section 9-106 (NRS 104.9106) of the UCC, and any credit instruments, as such
term is defined in NRS 463.01467; (ii) Gaming Equipment wherever located; (iii)
any inventory, as such term is defined in Section 9-109 (NRS 104.9109) of the
UCC, wherever located; (iv) any FF&E subject to Liens in existence as of the
date of the Indenture (as defined in the Indenture) securing indebtedness in
existence as of the date of the Indenture; (v) any agreement with a third party
that, pursuant to its terms, prohibits the grant of a lien on such agreement, to
the extent that such third party has not consented to the liens created hereby;
(vi) any Collateral (as such term is defined in the Security Agreement) which is
subject to an agreement with a third party that, pursuant to its terms,
prohibits the grant of a lien on such Collateral, to the extent that such third
party has not consented to the liens created hereby; (vii) Gaming Licenses (as
defined in the Indenture) or any other governmental approval or permit, to the
extent that, under the terms and conditions of such approval or under applicable
law, it cannot be subjected to a Lien in favor of the Beneficiary without the
approval of the relevant governmental authority, to the extent that such
approval has not been obtained; (viii) any FF&E (A) the purchase of which was
not financed with the proceeds of the Notes and (B) that a Grantor is permitted
to encumber and has encumbered pursuant to clause (ii) of the second paragraph
of Section 4.10 of the Indenture and (C) in which Secured Party is prohibited
from maintaining a security interest pursuant to the terms of the FF&E Financing
Agreement encumbering such FF&E; and (ix) any personal property which Trustor is
prohibited from pledging under applicable law.
"FF&E" means all of Trustor's personal property, equipment,
supplies, building and other materials of every nature whatsoever and all other
personal property wherever located, including, but not limited to, all general
equipment and devices which are or are to be installed and used in connection
with the operation of the Riviera and the Land, all computer equipment,
calculators, adding machines, and any other electronic equipment of every nature
used or located at the Riviera, all fixtures, appurtenances and personal
property now or in the future contained in, used in connection with, attached
to, or otherwise useful or convenient to the use, operation, or occupancy of, or
placed on, but unattached to, any part of the Riviera or the Land, whether or
not the same constitutes real property or fixtures in the State of Nevada,
including, without limitation, all removable window and floor coverings, all
furniture and furnishings, heating, lighting, plumbing, ventilating, air
conditioning, refrigerating,
2
incinerating and elevator and escalator plants, machinery, equipment and
appliances, cooking facilities, vacuum cleaning systems, telephone, television,
public address and communications systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, motors, machinery, pipes,
appliances, equipment, fittings, fixtures, and building materials, together with
all venetian blinds, shades, draperies, drapery and curtain rods, brackets,
bulbs, cleaning apparatus, mirrors, lamps, ornaments, cooling apparatus and
equipment, ranges and ovens, garbage disposals, dishwashers, mantels, and any
and all such property, including, without limitation, all parts thereof and
accessions thereto, which is at any time installed in, affixed to or placed upon
the Riviera or the Land.
"FF&E Financing Agreement" shall have the meaning ascribed to that
term in Section 1.9(d) hereof.
"Gaming Equipment" means any slot machines, gaming tables and
other gaming devices, as defined in NRS 463.0155, any cashless wagering system
as defined in NRS 463.014 and associated equipment as defined in NRS 463.0136.
"Governmental Authority" means any agency, authority, board,
bureau, commission, department, office, public entity, or instrumentality of any
nature whatsoever of the federal government of the United States or any foreign
government, any state, province or any city or other political subdivision or
otherwise, whether now or hereafter in existence, or any officer or official
thereof, including, without limitation, any Gaming Authority.
"Guarantor(s)" means each of (i) ROC, RGM, RGMC and Riviera Gaming
Management- Elsinore, Inc. and (ii) any other Affiliate of Trustor that executes
a guarantee in accordance with the provisions of the Indenture, and their
respective successors and assigns.
"Imposition" means any taxes, assessments, water rates, sewer
rates, maintenance charges, other governmental impositions and other charges now
or hereafter levied or assessed or imposed against the Trust Estate or any part
thereof.
"Improvements" means (1) all the buildings, structures, facilities
and improvements of every nature whatsoever now or hereafter situated on the
Land or any real property encumbered hereby, and (2) all fixtures, machinery,
appliances, goods, building or other materials, equipment, including without
limitation all gaming equipment and devices, and all machinery, equipment,
engines, appliances and fixtures for generating or distributing air, water,
heat, electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of dust,
refuse or garbage; all wall-beds, wall-safes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumb-waiters, awnings, window shades, venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, computers, drapes, drapery rods and
brackets, mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing,
bathtubs, sinks, basins, pipes, faucets, water closets, laundry equipment,
washers, dryers, ice-boxes and heating units; all kitchen and restaurant
equipment, including but not limited to silverware, dishes, menus, cooking
utensils, stoves, refrigerators, ovens, ranges, dishwashers, disposals, water
heaters, incinerators, furniture, fixtures and furnishings, communication
systems, and equipment; all cocktail lounge supplies, including but not limited
to bars, glassware, bottles and tables used in connection with the Land; all
chaise lounges, hot tubs, swimming pool heaters and equipment and all other
recreational equipment (computerized and otherwise), beauty and xxxxxx
equipment, and maintenance supplies used in connection with the Land; all
amusement rides and attractions attached to the Land, all specifically designed
installations and furnishings, and all furniture, furnishings and personal
3
property of every nature whatsoever now or hereafter owned or leased by Trustor
or in which Trustor has any rights or interest and located in or on, or attached
to, or used or intended to be used or which are now or may hereafter be
appropriated for use on or in connection with the operation of the Land or any
real or personal property encumbered hereby or any other Improvements, or in
connection with any construction being conducted or which may be conducted
thereon, and all extensions, additions, accessions, improvements, betterments,
renewals, substitutions, and replacements to any of the foregoing, and all of
the right, title and interest of Trustor in and to any such property, which, to
the fullest extent permitted by law, shall be conclusively deemed fixtures and
improvements and a part of the real property hereby encumbered.
"Indenture" means that certain Indenture, dated as of August 13,
1997, by and among Beneficiary, as trustee, Trustor, as issuer, and Guarantors,
as such Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
"Insolvent" means with respect to any person or entity, that such
person or entity shall be deemed to be insolvent if he or it is unable to pay
his or its debts as they become due and/or if the fair market value of his or
its assets does not exceed his or its aggregate liabilities.
"Intangible Collateral" means (a) all of Trustor's chattel paper,
including writings that evidence both a monetary obligation and a security
interest in or lease of specific goods, instruments, promissory notes,
acceptances, drafts, checks, certificates of deposit and other writings that
evidence a right to the payment of money by any other Person, in each case
whether now existing or hereafter arising and wherever arising and whether or
not earned by performance, other general intangibles, documents of title,
warehouse receipts, leases, tax refund claims, partnership interests,
indemnification and other similar claims and contract rights, permits and
licenses, including, without limitation, any licenses held or to be held by
Trustor necessary to operate the Riviera or conduct business on the Land (other
than any gaming or other licenses in which a security interest cannot be granted
without the consent of third parties and no such consent has been given),
franchises, certificates, stock, and all rights in, to and under all security
agreements, mortgages, deeds of trust, guarantees, leases and other agreements
or contracts securing or otherwise relating to any of the foregoing; (b) all of
the trademarks and service marks now held or hereafter acquired by Trustor,
which are registered in the United States Patent and Trademark Office or in any
similar office or agency of the United States or any state thereof or any
political subdivision thereof and any application for such trademarks and
service marks, as well as any unregistered marks used by such Grantor in the
United States (the "Marks") and trade dress including logos, designs, trade
names, business names, fictitious business names and other business identifiers
in connection with which any of these registered or unregistered marks are used
in the United States together with the registration and right to renewals
thereof, and the goodwill of the business of such Grantor symbolized by the
Marks and all licenses associated therewith; (c) all United States copyrights
which each Trustor now or hereafter has registered with the United States
Copyright Office, as well as any application for a United States copyright
registration now or hereafter made with the United States Copyright Office by
Trustor; (d) all patents and patent applications of Trustor, which are now or
hereafter pending or granted by the United States Patent and Trademark Office or
any successor thereto or to which Trustor now or hereafter has title and any
divisions or continuations thereof, as well as all renewals thereof; (e) all
computer programs created by or for Trustor and which Trustor owns the copyright
with respect thereto and all intellectual property rights therein and all other
proprietary information of Trustor, including, but not limited to, trade
secrets; (f) all of the agreements to which Trustor may be a party from time to
time, as such agreements may be amended or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including, without limitation, (i)
all rights of Trustor to receive moneys due and to become due under or pursuant
to the Assigned Agreements, (ii)
4
all rights of Trustor to receive proceeds of any insurance, indemnity, warranty
or guaranty with respect to any of the Trust Estate or the Assigned Agreements,
(iii) claims of Trustor for damages arising out of or for breach of or default
under the Assigned Agreements, and (iv) the right of Trustor to terminate the
Assigned Agreements, to perform thereunder and to compel performance and
otherwise exercise all remedies thereunder; (g) subject to the absolute
assignment contained herein, the Rents; (g) all securities of Trustor's
subsidiaries, whether now in existence of hereafter incorporated or formed; (h)
all replacements, additions, accessions, substitutions, proceeds, products,
offspring, rents and profits, relating to any of the foregoing, and all
documents, records, ledger sheets and files of such Grantor relating thereto.
"Land" means the real property situated in the County of Xxxxx,
State of Nevada, more specifically described in Schedule A attached hereto and
incorporated herein by reference, including any after acquired title thereto.
"Legal Requirements" means all applicable restrictive covenants,
applicable zoning and subdivision ordinances and building codes, all applicable
health and Environmental Laws and regulations, all applicable gaming laws and
regulations, and all other applicable laws, ordinances, rules, regulations,
judicial decisions, administrative orders, and other requirements of any
Governmental Authority having jurisdiction over Trustor, the Trust Estate and/or
any Affiliate of Trustor, in effect either at the time of execution of this Deed
of Trust or at any time during the term hereof, including, without limitation,
all Environmental Laws and Gaming Control Acts.
"Loan Documents" means the Indenture, the Notes, and the
Collateral Documents, together with any similar documents executed after the
date hereof pursuant to Section 4.18 of the Indenture.
"Noteholders" means the holders of the Notes.
"Notes" means Trustor's $175,000,000 10% First Mortgage Notes due
2004, issued pursuant to the Indenture.
"NRS" means the Nevada Revised Statutes as in effect from time to
time.
"Offering Circular" means that certain Offering Circular, dated as
of August 8, 1997, relating to the offering of the Notes, and all supplements,
schedules or other attachments thereto.
"Permitted Dispositions" means the sale, transfer, lease or other
disposition of assets in the Trust Estate, in the ordinary course of business,
and other sales, transfers, lease or other dispositions of assets in the Trust
Estate; provided that all provisions of the Indenture are complied with,
including Section 10.03, and provided further that no sale, lease or other
disposition of the Land or any portion thereof (excluding the Six Acre Tracts)
shall be a Permitted Disposition.
"Personal Property" has the meaning set forth in Section 1.12.
"Proceeds" has the meaning assigned to it under the UCC and, in
any event, subject to the provisions of the Indenture, shall include but not be
limited to (i) any and all proceeds of any insurance (including without
limitation property casualty and title insurance), indemnity, warranty or
guaranty payable from time to time with respect to any of the Trust Estate; (ii)
any and all proceeds in the form of accounts, security deposits, tax escrows (if
any), down payments (to the extent the same may
5
be pledged under applicable law and subject to the prior rights of tenants under
the Space Leases), collections, contract rights, documents, instruments, chattel
paper, liens and security instruments, guarantees or general intangibles
relating in whole or in part to the Riviera and all rights and remedies of
whatever kind or nature Trustor may hold or acquire for the purpose of securing
or enforcing any obligation due Trustor thereunder; (iii) any and all payments
in any form whatsoever made or due and payable from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of all
or any part of the Trust Estate by any Governmental Authority; (iv) subject to
the absolute assignment contained herein, the Rents or other benefits arising
out of, in connection with or pursuant to any Space Lease of the Trust Estate;
and (v) any and all other amounts from time to time paid or payable in
connection with any of the Trust Estate; provided, however, that Trustor is not
authorized to dispose of any of the Trust Estate unless such disposition is a
Permitted Disposition.
"Receiver" means, with respect to any Person (including Trustor),
any receiver, trustee, custodian, debtor in possession, liquidator,
sequestrator, administrator, conservator, or other successor appointed (whether
by a court or otherwise) pursuant to any creditor's exercise of remedies against
such Person, or pursuant to a Bankruptcy of such Person, or for purposes of
reorganization or liquidation, or otherwise for the benefit of such Person's
creditors, or under any similar circumstances, or otherwise having similar
powers over such Person or its property, whether such Receiver acts on an
interim, temporary, or final basis and whether such appointment applies to all
or any significant portion of such Person's assets or property, including or not
including any of the Trust Estate.
"Rents" means all rents, room revenues, income, receipts, issues,
profits, revenues and maintenance fees, room, food and beverage revenues,
license and concession fees, income, proceeds and other benefits to which
Trustor may now or hereafter be entitled from the Land, the Improvements, the
Space Leases or any property encumbered hereby or any business or other activity
conducted by Trustor at the Land or the Improvements.
"Restricted Account" means that certain account no. 8470105316 of
Trustor at the U.S. Bank of Nevada into which the proceeds from the sale of the
Notes have been or will be deposited and in which the Beneficiary will have a
security interest pursuant to the Account Agreement.
"RGMC" means Riviera Gaming Management of Colorado, Inc., a
Colorado corporation and Guarantor under the Indenture.
"Riviera" means the Riviera Hotel & Casino and any other hotel,
casino or resort constructed on the Land in the future.
"Riviera Financing" means the transactions related to the Notes,
the Indenture, and the Collateral Documents.
"RGM" means Riviera Gaming Management, Inc., a Nevada corporation
and Guarantor under the Indenture.
"ROC" means Riviera Operating Corporation, a Nevada corporation
and Guarantor under the Indenture.
"Secured Obligations" means (i) the payment by Trustor to the
Noteholders or Beneficiary of all indebtedness now or hereafter owed to
Beneficiary by Trustor in connection with the Riviera Financing, whether at
stated maturity, by acceleration or otherwise, including, without limitation,
6
Trustor's obligations under the Indenture, the Notes, the Collateral Documents
or any related documents securing the obligations thereunder, together with any
interest thereon, fees, expenses, Liquidated Damages, indemnification or
otherwise, in connection therewith and extensions, modifications and renewals
thereof, (ii) the performance by Trustor of all other obligations and the
discharge of all other liabilities of Trustor to Beneficiary of every kind and
character arising from the Riviera Financing, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
joint, several and joint and several, and whether created under this Deed of
Trust, the other Collateral Documents or any other agreement to which Trustor
and Beneficiary are parties, (iii) any and all sums advanced by Beneficiary in
order to preserve the Trust Estate or preserve Beneficiary's security interest
in the Trust Estate (or the priority thereof) and (iv) the expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the Trust Estate, of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of Beneficiary
referred to above, or of any exercise by Beneficiary of its rights hereunder,
together with reasonable attorneys' fees and disbursements and court costs
"Security Agreement" means that certain Security Agreement,
entered into as of August 13, 1997, by and between Trustor, Beneficiary and the
Guarantors.
"Six Acre Tracts" means those portions of the Land subject to the
partial release provisions of Section 1.10 of the Indenture consisting of
approximately six-acres fronting Riviera Boulevard which Trustor intends to
subdivide and develop as a hotel, time share facility or gaming area, together
with all improvements and fixtures thereon, and any easements appurtenant
thereto.
"Space Leases" means any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreements, and all
other agreements affecting the Trust Estate that Trustor has entered into, taken
by assignment, taken subject to, or assumed, or has otherwise become bound by,
now or in the future, that give any person the right to conduct its business on,
or otherwise use, operate or occupy, all or any portion of the Land or
Improvements and any leases, agreements or arrangements permitting anyone to
enter upon or use any of the Trust Estate to extract or remove natural resources
of any kind, together with all amendments, extensions, and renewals of the
foregoing entered into in compliance with this Deed of Trust, together with all
rental, occupancy, service, maintenance or any other similar agreements
pertaining to use or occupation of, or the rendering of services at the Land,
the Improvements or any part thereof.
"Space Lessee(s)" means any and all tenants, licensees, or other
grantees of the Space Leases and any and all guarantors, sureties, endorsers or
others having primary or secondary liability with respect to such Space Lease.
"Stock Pledge Agreements" means, collectively, (i) that certain
Stock Pledge Agreement, dated as of even date herewith, executed by Trustor on
behalf of Beneficiary, pursuant to which Trustor pledged to Beneficiary its 100%
interest in ROC, (ii) that certain Stock Pledge Agreement, dated as of even date
herewith, executed by ROC on behalf of Beneficiary, pursuant to which ROC
pledged to Beneficiary its 100% interest in RGM, (iii) that certain Stock Pledge
Agreement, dated as of even date herewith, executed by RGM on behalf of
Beneficiary pursuant to which RGM pledged to Beneficiary its 100% interest in
Riviera Gaming Management-Elsinore, Inc. and its 100% interest in RGMC; and (iv)
any other stock pledge agreements executed after the date hereof pursuant to
Section 4.18 of the Indenture.
7
"Tangible Collateral" means all of Trustor's personal property,
goods, equipment, supplies, building and other materials of every nature
whatsoever, including, without limitation, FF&E, and all other tangible personal
property constituting a part or portion of the Riviera and/or used in the
operation of the hotels, casinos, restaurants, stores, parking facilities and
all other commercial operations on the Land or Improvements, including but not
limited to communication systems, visual and electronic surveillance systems and
transportation systems and not constituting a part of the real property subject
to the real property lien of this Deed of Trust and including all property and
materials stored therein in which Trustor has an interest and all tools,
utensils, uniforms, linens, housekeeping and maintenance supplies, vehicles,
fuel, advertising and promotional material, blueprints, surveys, plans and other
documents relating to the Land or Improvements, and all construction materials
and all furnishings, fixtures and equipment, including, but not limited to,
those items of furniture, fixtures and equipment which are to be purchased or
leased by Trustor, machinery and any other item of personal property in which
Trustor now or hereafter own or acquire an interest or right, and which are used
or useful in the construction, operation, use and occupancy of the Riviera; to
the extent permitted by the applicable contract or applicable law, all financial
equipment, computer equipment, calculators, adding machines, and any other
electronic equipment of every nature used or located on any part of the Land or
Improvements, and all present and future right, title and interest of Trustor in
and to any casino operator's agreement, license agreement or sublease agreement
used in connection with the Land or Improvements; provided, however, that
Tangible Collateral does not include Excluded Assets.
"Title Insurer" means Chicago Title Insurance Company.
"Trust Estate" means all of the property described in Granting
Clauses (A) through (P) below, inclusive, and each item of property therein
described, provided, however, that such term shall not include the property
described in Granting Clause (P) below.
"Trustee" means United Title of Nevada, a Nevada corporation, or
any successor thereto appointed in accordance with this Deed of Trust.
"Trustor" means Riviera Holdings Corporation, a Nevada
corporation, and includes not only the original Trustor hereunder, but also any
successors or assigns of the Trust Estate, or any part thereof, at any time and
from time to time, as the case requires.
"UCC" means the Uniform Commercial Code in effect in the State of
Nevada from time to time, NRS chapters 104 and 104A.
The following terms shall have the meaning assigned to such terms
in the Indenture:
Affiliate
Bankruptcy Law
Cash Equivalents
Covenant Defeasance
Event of Loss
Gaming Authority
Gaming Laws
Gaming License
Holder
Legal Defeasance
Lien
8
Liquidated Damages
Permitted Liens
Person
In addition, any capitalized terms used in this Deed of Trust which are not
otherwise defined herein shall have the meaning ascribed to such terms in the
Indenture.
W I T N E S S E T H:
IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDERATION; THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, AND
FOR THE PURPOSE OF SECURING in favor of Beneficiary the Secured Obligations,
Trustor, in consideration of the premises, and for the purposes aforesaid, does
hereby ASSIGN, BARGAIN, CONVEY, PLEDGE, RELEASE, HYPOTHECATE, WARRANT, AND
TRANSFER UNTO TRUSTEE IN TRUST FOR THE BENEFIT OF BENEFICIARY AND THE
NOTEHOLDERS each of the following:
(A) The Land;
(B) TOGETHER WITH the Improvements;
(C) TOGETHER WITH all Appurtenant Rights;
(D) TOGETHER WITH the Tangible Collateral;
(E) TOGETHER WITH the Intangible Collateral;
(F) TOGETHER WITH, subject to the provisions of the Indenture, (i)
all the estate, right, title and interest of Trustor of, in and to all judgments
and decrees, insurance proceeds, awards of damages and settlements hereafter
made resulting from condemnation proceedings or the taking of any of the
property described in Granting Clauses (A), (B), (C), (D) and (E) hereof or any
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the property described in Granting
Clauses (A), (B), (C), (D) and (E) hereof or any part thereof, or to any
Appurtenant Rights thereto, and Beneficiary is hereby authorized to collect and
receive said awards and proceeds and to give proper receipts and acquittance
therefor, and (subject to the terms hereof) to apply the same toward the payment
of the indebtedness and other sums secured hereby, notwithstanding the fact that
the amount owing thereon may not then be due and payable; (ii) all proceeds of
any sales or other dispositions of the property or rights described in Granting
Clauses (A), (B), (C), (D) and (E) hereof or any part thereof whether voluntary
or involuntary, provided, however, that the foregoing shall not be deemed to
permit such sales, transfers, or other dispositions except as specifically
permitted herein; and (iii) whether arising from any voluntary or involuntary
disposition of the property described in Granting Clauses (A), (B), (C), (D) and
(E), all Proceeds, products, replacements, additions, substitutions, renewals
and accessions, remainders, reversions and after-acquired interest in, of and to
such property;
9
(G) TOGETHER WITH the absolute assignment of any Space Leases or
any part thereof that Trustor has entered into, taken by assignment, taken
subject to, or assumed, or has otherwise become bound by, now or in the future,
together with all of the following (including all "Cash Collateral" within the
meaning of the Bankruptcy Law) arising from the Space Leases: (a) Rents
(subject, however, to the aforesaid absolute assignment to Beneficiary and the
conditional permission hereinbelow given to Trustor to collect the Rents), (b)
all guarantees, letters of credit, security deposits, collateral, cash deposits,
and other credit enhancement documents, arrangements and other measures with
respect to the Space Leases, (c) all of Trustor's right, title, and interest
under the Space Leases, including the following: (i) the right to receive and
collect the Rents from the lessee, sublessee or licensee, or their Successor(s),
under any Space Lease(s) and (ii) the right to enforce against any tenants
thereunder and otherwise any and all remedies under the Space Leases, including
Trustor's right to evict from possession any tenant thereunder or to retain,
apply, use, draw upon, pursue, enforce or realize upon any guaranty of any Space
Lease; to terminate, modify, or amend the Space Leases; to obtain possession of,
use, or occupy, any of the real or personal property subject to the Space
Leases; and to enforce or exercise, whether at law or in equity or by any other
means, all provisions of the Space Leases and all obligations of the tenants
thereunder based upon (A) any breach by such tenant under the applicable Space
Lease (including any claim that Trustor may have by reason of a termination,
rejection, or disaffirmance of such Space Lease pursuant to any Bankruptcy Law)
and (B) the use and occupancy of the premises demised, whether or not pursuant
to the applicable Space Lease (including any claim for use and occupancy arising
under landlord- tenant law of the State of Nevada or any Bankruptcy Law).
Permission is hereby given to Trustor, so long as no Event of Default has
occurred and is continuing hereunder, to collect and use the Rents, as they
become due and payable, but not in advance thereof, and to exercise the
administrative rights specified in (c)(ii) above. Upon the occurrence of an
Event of Default, the permission hereby given to Trustor to collect the Rents
and to exercise the administrative rights specified in (c)(ii) above shall
automatically terminate, but such permission shall be reinstated upon a cure of
such Event of Default. Beneficiary shall have the right, at any time and from
time to time, to notify any Space Lessee of the rights of Beneficiary as
provided by this section; Notwithstanding anything to the contrary contained
herein, the foregoing provisions of this Paragraph (G) shall not constitute an
assignment for purposes of security but shall constitute an absolute and present
assignment of the Rents to Beneficiary, subject, however, to the conditional
license given to Trustor to collect and use the Rents as hereinabove provided;
and the existence or exercise of such right of Trustor shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by Trustor;
(H) TOGETHER WITH all of Trustor's right, title and interest in
and to any and all maps, plans, specifications, surveys, studies, tests,
reports, data and drawings relating to the Riviera, including, without
limitation, all marketing plans, feasibility studies, soils tests, design
contracts and all contracts and agreements of Trustor relating thereto
including, without limitation, architectural, structural, mechanical and
engineering plans and specifications, studies, data and drawings prepared for or
relating to the development of the Land or Riviera or the construction,
renovation or restoration of any of the Improvements or the extraction of
minerals, sand, gravel or other valuable substances from the Land and purchase
contracts or any agreement granting Trustor a right to acquire any land situated
within the County of Xxxxx, State of Nevada; provided, however, that Trustor
shall maintain custody and control over same prior to the occurrence of an Event
of Default;
(I) TOGETHER WITH, to the extent permitted by applicable law, all
of Trustor's right, title, and interest in and to any and all licenses, permits,
variances, special permits, franchises, certificates, rulings, certifications,
validations, exemptions, filings, registrations, authorizations, consents,
approvals, waivers, orders, rights and agreements (including, without
limitation, options, option rights,
10
subdivision rights and contract rights) now or hereafter obtained by Trustor
from any Governmental Authority having or claiming jurisdiction over the Land,
the FF&E, the Riviera, or any other element of the Trust Estate or providing
access thereto, or the operation of any business on, at, or from the Land;
(J) TOGETHER WITH all water stock, water permits and other water
rights of any kind or nature relating to or appurtenant to the Land;
(K) TOGETHER WITH all oil and gas and other mineral rights, if
any, in or pertaining to the Land and all royalty, leasehold and other rights of
Trustor pertaining thereto;
(L) TOGETHER WITH, but subject to the provisions of the Indenture,
any and all monies and other property, real or personal, which may from time to
time be subjected to the lien hereof by Trustor or by anyone on its behalf or
with its consent, or which may come into the possession or be subject to the
control of Trustee or Beneficiary pursuant to this Deed of Trust or any Loan
Document, including, without limitation, any protective advances under this Deed
of Trust; and all of Trustor's right, title, and interest in and to all
extensions, improvements, betterments, renewals, substitutes for and
replacements of, and all additions, accessions, and appurtenances to, any of the
foregoing that Trustor may subsequently acquire or obtain by any means, or
construct, assemble, or otherwise place on any of the Trust Estate, and all
conversions of any of the foregoing; it being the intention of Trustor that all
property hereafter acquired by Trustor and required by any Loan Document or this
Deed of Trust to be subject to the lien of this Deed of Trust or intended so to
be shall forthwith upon the acquisition thereof by Trustor be subject to the
lien of this Deed of Trust as if such property were now owned by Trustor and
were specifically described in this Deed of Trust and granted hereby or pursuant
hereto, and Trustee and Beneficiary are hereby authorized, subject to Gaming
Laws, to receive any and all such property as and for additional security for
the obligations secured or intended to be secured hereby. Trustor agrees to take
any action as may reasonably be necessary to evidence and perfect such liens or
security interests, including, without limitation, the execution of any
documents necessary to evidence and perfect such liens or security interests;
(M) TOGETHER WITH the Restricted Account, and all royalties,
earnings, income, proceeds, products, rents, revenues, reversions, remainders,
issues, profits, avails, production payments, and other benefits directly or
indirectly derived or otherwise arising from any of the foregoing, all of which
are hereby assigned to Beneficiary, who, except as otherwise expressly provided
in this Deed of Trust, is authorized to collect and receive the same, to give
receipts and acquittances therefor and to apply the same to the Secured
Obligations hereunder, whether or not then due and payable;
(N) TOGETHER WITH Proceeds of the foregoing property described in
Granting Clauses (A) through (M);
(O) TOGETHER WITH Trustor's rights further to assign, sell, lease,
encumber or otherwise transfer or dispose of the property described in Granting
Clauses (A) through (N) inclusive, above, for debt or otherwise, except to the
extent expressly reserved by Trustor pursuant to Section 10.03 of the Indenture,
or to evidence or secure a Permitted Lien or Permitted Disposition;
(P) EXPRESSLY EXCLUDING, HOWEVER, the Excluded Assets and FF&E (to
the extent that (i) the purchase of such FF&E was not financed with the proceeds
of the Notes and (ii) Trustor is permitted to enter into a FF&E Financing
Agreement for such FF&E under clause (ii) of the second paragraph of Section
4.10 of the Indenture and clauses (v) and (vii) of the definition of "Permitted
Liens" in the Indenture.
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Trustor, for itself and its successors and assigns, covenants and
agrees to and with Trustee that, at the time or times of the execution of and
delivery of these presents or any instrument of further assurance with respect
thereto, Trustor has good right, full power and lawful authority to assign,
grant, convey, warrant, transfer, bargain or sell its interests in the Trust
Estate in the manner and form as aforesaid, and that the Trust Estate is free
and clear of all liens and encumbrances whatsoever, except the Permitted Liens,
and Trustor shall warrant and forever defend the Trust Estate in the quiet and
peaceable possession of Trustee and its successors and assigns against all and
every person or persons lawfully or otherwise claiming or to claim the whole or
any part thereof, except for the Permitted Liens. Trustor agrees that any
greater title to the Trust Estate hereafter acquired by Trustor during the term
hereof shall be automatically subject hereto.
ARTICLE ONE
COVENANTS OF TRUSTOR
The purchasers of the Notes have been induced to purchase the Notes on
the basis of the following material covenants, all agreed to by Trustor:
1.1 Performance of Loan Documents. Trustor shall perform, observe and
comply with each and every provision hereof, and with each and every provision
contained in the Loan Documents and shall promptly pay to Beneficiary, when
payment shall become due, the principal with interest thereon and all other sums
required to be paid by Trustor under this Deed of Trust and the other Loan
Documents.
1.2 General Representations, Covenants and Warranties. Trustor
represents, covenants and warrants that: (a) Trustor has good and marketable
title to an indefeasible fee estate in the Land, free and clear of all
encumbrances except Permitted Liens, and that it has the right to hold, occupy
and enjoy its interest in the Trust Estate, and has good right, full power and
lawful authority to subject the Trust Estate to the Lien of this Deed of Trust
and pledge the same as provided herein and Beneficiary may at all times
peaceably and quietly enter upon, hold, occupy and enjoy the entire Trust Estate
in accordance with the terms hereof; (b) neither Trustor nor any Affiliate of
Trustor is Insolvent and no bankruptcy or insolvency proceedings are pending or
contemplated by or, to the best of Trustor's knowledge, against Trustor or any
Affiliate of Trustor; (c) all costs arising from construction of any
Improvements, the performance of any labor and the purchase of all Tangible
Collateral and Improvements have been or shall be paid when due; (d) the Land
has frontage on, and direct access for ingress and egress to dedicated
street(s), either directly or through an easement; (e) Trustor shall at all
times conduct and operate the Trust Estate in a manner so as not to lose the
right to conduct gaming activities at the Riviera; (f) no material part of the
Trust Estate has been damaged, destroyed, condemned or abandoned, other than
those portions of the Trust Estate that have been the subject of condemnation
proceedings that have resulted in the conveyance of such portion of the Trust
Estate to Trustor; (g) no part of the Trust Estate is the subject of
condemnation proceedings, and Trustor has no knowledge of any contemplated or
pending condemnation proceeding with respect to any portion of the Trust Estate;
and (h) the Trust Estate and all structures, equipment, fixtures or activities
thereon are in compliance with all applicable zoning and land use ordinances and
regulations, building codes, and fire codes except where failure to comply would
not have a material adverse effect on Trustor's business, finances or
operations.
1.3 Compliance with Legal Requirements. Trustor shall promptly, fully,
and faithfully comply with all Legal Requirements and shall cause all portions
of the Trust Estate and its use and occupancy
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to fully comply with Legal Requirements at all times, whether or not such
compliance requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, structural or nonstructural, or that
interfere with the use or enjoyment of the Trust Estate.
1.4 Taxes. Trustor shall pay all Impositions prior to delinquency and
shall deliver to Beneficiary promptly upon Beneficiary's request, evidence
satisfactory to Beneficiary that the Impositions have been paid or are not
delinquent; provided that Trustor may contest, in good faith any Imposition so
long as Trustor posts an adequate bond therefor. Trustor shall not suffer to
exist, permit or initiate the joint assessment of the real and personal
property, or any other procedure whereby the lien of the real property taxes and
the lien of the personal property taxes shall be assessed, levied or charged to
the Land as a single lien, except as may be required by law. In the event of the
passage of any law deducting from the value of real property for the purposes of
taxation any lien thereon, or changing in any way the taxation of deeds of trust
or obligations secured thereby for state or local purposes, or the manner of
collecting such taxes and imposing a tax, either directly or indirectly, on this
Deed of Trust or the Notes, Trustor shall pay all such taxes.
1.5 Insurance.
(a) Hazard Insurance Requirements and Proceeds.
(1) Hazard Insurance. Trustor shall at its sole expense obtain
for, deliver to, assign and maintain for the benefit of Beneficiary, during the
term of this Deed of Trust, insurance policies insuring the Trust Estate and
liability insurance policies, all in accordance with the requirements of Section
4.20 of the Indenture. Trustor shall pay promptly when due any premiums on such
insurance policies and on any renewals thereof. The forms of such policies and
the companies issuing them shall be reasonably acceptable to Beneficiary. Copies
of all such policies and renewals thereof shall be given to Beneficiary and all
such policies shall contain a noncontributory standard mortgagee or beneficiary
endorsement (Form 438 BFU or its equivalent) making losses payable to
Beneficiary as its interest may appear and shall name the Beneficiary as an
additional insured. At least thirty (30) days prior to the expiration date of
all such policies, evidence of the renewal thereof satisfactory to Beneficiary
shall be delivered to Beneficiary together with receipts evidencing the payment
of all premiums on such insurance policies and renewals. In the event of loss,
Trustor shall give immediate written notice to Beneficiary and Beneficiary may
make proof of loss if not made promptly by Trustor. In the event of the
foreclosure of this Deed of Trust or any other transfer of title to the Trust
Estate in extinguishment of the indebtedness and other sums secured hereby, all
right, title and interest of Beneficiary in and to all insurance policies and
renewals thereof then in force shall pass to the purchaser or grantee, upon
delivery of written notice to Beneficiary within thirty (30) days following the
occurrence of such loss.
(2) Handling of Proceeds. Pursuant to its rights granted
hereunder in all Proceeds from any insurance policies, Beneficiary is hereby
authorized and empowered at its option to adjust or compromise any loss, under
any insurance policies on the Trust Estate and to collect and receive the
Proceeds from any such policy or policies. Each insurance company is hereby
authorized and directed to make payment for all such losses directly to
Beneficiary alone and not to Trustor and Beneficiary jointly. After deducting
from such Proceeds any reasonable expenses incurred by Beneficiary in the
collection or handling such funds, including reasonable attorneys' fees,
Beneficiary shall apply such insurance proceeds in accordance with the terms of
the Indenture and the following provisions:
(A) Such Proceeds shall be invested in Cash Equivalents
and held in an account in which the Beneficiary or its designee shall
have a first priority security interest (subject
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to Permitted Liens) for the benefit of the Holders of Notes as
depository for the disbursement thereof in accordance with (B) below.
If an Event of Default occurs prior to disbursement of the Proceeds,
Beneficiary at its option shall have the right to either apply all or
any portion of such account toward restoration of the Riviera or toward
any amounts secured hereby.
(B) Trustor shall (and Beneficiary hereby authorizes
Trustor to) use the Proceeds in accordance with Section 4.11 of the
Indenture.
(C) In the event that Trustor uses the Proceeds to restore
the Riviera, the restoration work and the performance thereof shall be
subject to and performed in accordance with each of the following
provisions: (1) such work and the performance thereof shall be
conducted in a first-class, workmanlike manner, shall not permanently
weaken nor impair the structural strength of any existing Improvements,
nor change the character thereof or the purpose for which the same may
be used, nor lessen the value of the Trust Estate; (2) before the
commencement of any such work, the plans and specifications therefor
(the "Restoration Plans") shall be filed with and approved by all
Governmental Authorities having jurisdiction and all necessary
licenses, permits and/or authorizations from all Governmental
Authorities shall have been obtained, and all such work shall be done
subject to and in accordance with all applicable Legal Requirements;
and (3) before commencing any such work, Trustor shall, at Trustor's
expense, have delivered to Beneficiary the Restoration Plans and a line
item budget setting forth with reasonable particularity the cost of
completing such work, together with a written opinion from a reputable
architect certifying (a) that the execution of the work described in
the Restoration Plans will substantially restore the Riviera, and (b)
that the budget constitutes a reasonable approximation of the cost of
so restoring the Riviera in accordance with the Restoration Plans.
(b) Insurance Escrow. In order to secure the performance and
discharge of the Trustor's obligations under this Section 1.5, but not in lieu
of such obligations, Trustor shall, upon a failure to pay or provide such
insurance, at the times and in the manner required herein, pay over to
Beneficiary an amount equal to one-twelfth (1/12th) of the next maturing annual
insurance premiums for each month that has elapsed since the last date to which
such premiums were paid; and Trustor shall, in addition, pay over to
Beneficiary, on the first day of each month, sufficient funds (as estimated from
time to time) to permit Beneficiary to pay said premiums when due. Such deposits
shall not be, nor be deemed to be, trust funds but may be commingled with the
general funds of Beneficiary, and no interest shall be payable in respect
thereof except as required by law. Upon demand by Beneficiary, Trustor shall
deliver to Beneficiary such additional monies as are necessary to make up any
deficiencies in the amounts necessary to enable Beneficiary to pay such premiums
when due.
(c) Compliance with Insurance Policies. Trustor shall not violate
or permit to be violated any of the conditions or provisions of any policy of
insurance required by the Indenture or this Deed of Trust and Trustor shall so
perform and satisfy the requirements of the companies writing such policies
that, at all times, companies of good standing shall be willing to write and/or
continue such insurance. Trustor further covenants to promptly send to
Beneficiary copies of all notices relating to any material violation of such
policies or otherwise materially adversely affecting Trustor's insurance
coverage or ability to obtain and maintain such insurance coverage.
1.6 Condemnation. Beneficiary is hereby authorized, at its option, to
commence, appear in and prosecute in its own or Trustor's name any action or
proceeding relating to any condemnation, seizure or taking by the exercise of
the power of eminent domain of any of the Trust Estate and to settle or
14
compromise any claim in connection therewith, and Trustor hereby appoints
Beneficiary as its attorney-in-fact to take any action in Trustor's name
pursuant to Beneficiary's rights hereunder. Immediately upon obtaining knowledge
of the institution of any proceedings for the condemnation of the Trust Estate
or any portion thereof, Trustor shall notify the Trustee and Beneficiary of the
pendency of such proceedings. Trustor from time to time shall execute and
deliver to Beneficiary all instruments requested by it to permit such
participation; provided, however, that such instruments shall be deemed as
supplemental to the foregoing grant of permission to Trustee and Beneficiary,
and unless otherwise required, the foregoing permission shall, without more, be
deemed sufficient to permit Trustee and/or Beneficiary to participate in such
proceedings on behalf of Trustor. All such compensation awards, damages, claims,
rights of action and Proceeds, and any other payments or relief, and the right
thereto, are included in the Trust Estate. To the extent such condemnation,
seizure or taking constitutes an Event of Loss, Beneficiary, after deducting
therefrom all its expenses, including reasonable attorneys fees, shall, or shall
authorize Trustor to apply such Proceeds in accordance with the provisions of
Section 4.11 of the Indenture.
1.7 Care of Trust Estate.
(a) Trustor shall preserve and maintain the Trust Estate in good
condition and repair, reasonable wear and tear excepted. Trustor shall not
permit, commit or suffer to exist any waste, impairment or deterioration of the
Trust Estate or of any part thereof that in any manner materially impairs
Beneficiary's security hereunder and shall not take any action which will
increase the risk of fire or other hazard to the Trust Estate or to any part
thereof.
(b) Except for Permitted Dispositions, no part of the Improvements
shall be removed, demolished or (except for existing construction projects and
the construction projects described as Nickel Plaza and the convention center
expansion in the Offering Circular) materially altered without the prior written
consent of Beneficiary, which consent shall not be unreasonably withheld.
Trustor shall have the right, without such consent, to remove and dispose of
free from the lien of this Deed of Trust any part of the Improvements as from
time to time may become worn out or obsolete, provided that either (i) such
removal or disposition does not materially affect the value of the Trust Estate
or (ii) prior to or promptly following such removal, any such property shall be
replaced with other property of substantially equal utility and of a value at
least substantially equal to that of the replaced property when first acquired
and free from any security interest of any other person (subject only to
Permitted Liens), and by such removal and replacement Trustor shall be deemed to
have subjected such replacement property to the lien of this Deed of Trust.
(c) Notwithstanding the foregoing provisions of this Section 1.7,
Trustor may develop the Six Acre Tracts, to the extent permitted by the
Indenture.
(d) To the fullest extent permitted by law, Trustor hereby waives
the benefits of the provisions of NRS 37.115.
1.8 Space Leases
(a) Trustor represents and warrants that
(i) Trustor has delivered to Beneficiary true, correct and
complete copies of all Space Leases, including all amendments and modifications,
written or oral existing as of the date hereof;
15
(ii) Trustor has not executed or entered into any modifications
or amendments of the Space Leases, either orally or in writing, other than
amendments that have been disclosed to Beneficiary in writing;
(iii) no default now exists under any Space Lease;
(iv) no event has occurred that, with the giving of notice or
the passage of time or both, would constitute such a default or would entitle
Trustor or any other party under such Space Lease to cancel the same or
otherwise avoid its obligations;
(v) Trustor has not accepted prepayments of installments of
Rent under any Space Leases more than thirty days in advance of the due date
therefor and except for security deposits not in excess of one month's Rent;
(vi) except for the assignment effected hereby, Trustor has not
executed any assignment or pledge of any of Space Leases, the Rents, or of
Trustor's right, title and interest in the same; and
(vii) this Deed of Trust conforms and complies with all Space
Leases, does not constitute a violation or default under any Space Lease, and is
and shall at all times constitute a valid lien on Trustor's interests in the
Space Leases.
1.9 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 1.10 or as otherwise permitted under the
Indenture, Trustor shall neither make nor suffer to exist, nor enter into any
agreement for, any sale, assignment, exchange, mortgage, transfer, Lien,
hypothecation or encumbrance of all or any part of the Trust Estate, including,
without limitation, the Rents. As used herein, "transfer" includes the actual
transfer or other disposition, whether voluntary or involuntary, by law, or
otherwise, except those transfers specifically permitted herein, provided,
however, that "transfer" shall not include the granting of utility or other
beneficial easements with respect to the Trust Estate which have been granted by
Trustor and are reasonably necessary to the construction, maintenance or
operation of the Riviera.
(b) Any Permitted Lien described in the definition of "Permitted
Liens" set forth in Section 1.01 of the Indenture which is junior to the lien of
Beneficiary granted by Trustor pursuant to the Collateral Documents (a
"Subordinate Deed of Trust") shall be permitted hereunder so long as there shall
have been delivered to Beneficiary, not less than thirty (30) days prior to the
date thereof, a copy thereof which shall contain express covenants in form and
substance satisfactory to Beneficiary to the effect that: (i) the Subordinate
Deed of Trust is in all respects subject and subordinate to this Deed of Trust;
(ii) if any action or proceeding shall be brought to foreclose the Subordinate
Deed of Trust (regardless of whether the same is a judicial proceeding or
pursuant to a power of sale contained therein), no tenant of any portion of the
Trust Estate shall be named as a party defendant nor shall any action be taken
with respect to the Trust Estate which would terminate any occupancy or tenancy
of the Trust Estate, or any portion thereof, without the consent of Beneficiary;
(iii) any Rents, if collected through a receiver or by the holder of the
Subordinate Deed of Trust, shall be applied first to the obligations secured by
this Deed of Trust, including principal and interest due and owing on or to
become due and owing on the Notes, and then to the payment of maintenance
expenses, operating charges, taxes, assessments, and disbursements incurred in
connection with the ownership, operation, and maintenance
16
of the Trust Estate; and (iv) if any action or proceeding shall be brought to
foreclose the Subordinate Deed of Trust, prompt notice of the commencement
thereof shall be given to Beneficiary.
(c) Trustor agrees that in the event the ownership of the Trust
Estate or any part thereof becomes vested in a person other than Trustor,
Beneficiary may, without notice to Trustor, deal in any way with such successor
or successors in interest with reference to this Deed of Trust, the Notes and
other Secured Obligations without in any way vitiating or discharging Trustor's
or any guarantor's, surety's or endorser's liability hereunder or upon the
obligations hereby secured. No sale of the Trust Estate and no forbearance to
any person with respect to this Deed of Trust and no extension to any person of
the time for payment of the Notes, and other sums hereby secured given by
Beneficiary shall operate to release, discharge, modify, change or affect the
original liability of Trustor, or such guarantor, surety or endorser either in
whole or in part.
(d) This Deed of Trust, as applied to property subject to an FF&E
Financing Agreement, shall be subordinated to the liens of any FF&E Financing
Agreements (as hereinafter defined in this Section 1.9(d) (or if required by an
FF&E Financing Agreement, it shall be released) and any future or further
advances made thereunder and to any modifications, renewals or extensions
thereof to which the lien of this Deed of Trust attaches, provided, however,
that any such FF&E Financing Agreement shall encumber only that FF&E
specifically subject to the FF&E Financing Agreement. Trustor covenants and
agrees to comply with all of the terms and conditions set forth in any FF&E
Financing Agreement. If Trustor shall fail to make any payment of principal of
or pursuant to any FF&E Financing Agreement on its part to be performed or
observed, except where Trustor is contesting such payment in good faith, then
Beneficiary may make such payment of the principal of or interest on the sums
secured by such security interest or may make any payment in order to perform or
observe any other term, covenant, condition or agreement of any FF&E Financing
Agreement on Trustor's part to be performed or observed and any and all sums so
expended by Beneficiary or Trustee shall be secured by this Deed of Trust and
shall be repaid by Trustor upon demand, together with interest thereon at the
interest rate on the Notes from the date of advance. In furtherance of such
subordination or release, as applicable, Beneficiary, upon receipt of an
officer's certificate from Trustor certifying that the requirements of this
Section 1.9(d) have been satisfied, shall execute, acknowledge and deliver to
Trustor, at Trustor's expense, any and all such evidence and documents necessary
to evidence the subordination or release of this Deed of Trust in accordance
with the foregoing provisions of this Section 1.9(d). As used herein, "FF&E
Financing Agreement" shall mean (A) any financing (i) as to which the lender
holds a security interest in only the assets purchased, constructed or leased by
such financing for the payment of principal, interest and other amounts in
connection therewith, (ii) which is permitted by the Indenture to be incurred
and (iii) the proceeds of which are used to acquire, construct or lease the FF&E
subject to such security interest, and (B) any refinancing or renewal of any
financing under clause (A).
1.10 Partial Releases of Trust Estate.
(a) Trustor may from time to time (i) transfer a portion of the
Trust Estate (including any temporary taking) to any person legally empowered to
exercise the power of eminent domain, (ii) make a Permitted Disposition, or
(iii) grant utility easements reasonably necessary for the construction and
operation of the Riviera, which grant or transfer is for the benefit of the
Trust Estate. In each such case, Beneficiary shall execute and deliver any
instruments necessary or appropriate to effectuate or confirm any such transfer
or grant, free from the lien of this Deed of Trust, provided, however, that
Beneficiary shall execute a lien release or subordination agreement, as
appropriate, for matters described in clauses (i) and (iii) above only if:
17
(1) Beneficiary and Trustee shall have received an Officer's
Certificate required by Section 10.03(a) of the Indenture;
(2) No Event of Default shall have occurred hereunder, and no
event which with notice or lapse of time or both would constitute such
Event of Default, has occurred and is continuing and that the
conditions of this Section 1.10 have been fulfilled, and such transfer,
grant or release is permitted by the Indenture;
(3) Beneficiary and Trustee shall have received a counterpart
of the instrument pursuant to which such transfer, grant or release is
to be made, and each instrument which Beneficiary or Trustee is
requested to execute in order to effectuate or confirm such transfer,
grant or release;
(4) In the case of a transfer to a person legally empowered to
exercise the power of eminent domain, which transfer involves property
whose value is greater than $5,000,000, Beneficiary and Trustee shall
have received an opinion of counsel, who may be counsel to Trustor, to
the effect that the assignee or grantee of the portion of the Trust
Estate being transferred is legally empowered to take such portion
under the power of eminent domain; and
(5) Beneficiary and Trustee shall have received such other
instruments, certificates (including evidence of authority) and
opinions as Beneficiary or Trustee may reasonably request, including,
but not limited to, opinions that the proposed release is permitted by
this Section 1.10.
(b) Trustor may transfer all or part of the Six Acre Tracts at any
time or times. In such event, Beneficiary shall execute and deliver any
instruments necessary or appropriate to effectuate or confirm such transfer,
free from the lien of this Deed of Trust, without the payment of any partial
release for, or any other prepayment with respect to, the Notes, provided,
however, that Beneficiary shall execute a lien release only if:
(1) Beneficiary and Trustee shall have received an Officer's
Certificate required by Section 10.03(a) of the Indenture;
(2) no Event of Default shall have occurred hereunder, and no
event which with notice or lapse of time or both would constitute such
Event of Default, has occurred and is continuing and that the
conditions of this Section 1.10 have been fulfilled, and such transfer
and release is permitted by the Indenture;
(3) Beneficiary and Trustee shall have received a counterpart
of the instrument pursuant to which such transfer or release is to be
made, and each instrument which Beneficiary or Trustee is requested to
execute in order to effectuate or confirm such transfer or release;
(4) Trustee and Beneficiary shall have been provided a legal
description of the portion or all of the Six Acre Tracts, as
applicable, in form reasonably acceptable to Trustee and Beneficiary;
(5) the release of the lien of this Deed of Trust on the
portion or all of the Six Acre Tracts, as applicable, shall not
constitute or result in a violation of any subdivision,
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subdivided lands or other governmental law or regulation nor of any
private restrictions affecting the Land;
(6) upon release of this Deed of Trust on a portion or all of
the Six Acre Tracts, as applicable, the Title Insurer, as the title
insurance company insuring Beneficiary's interest under this Deed of
Trust, shall issue to Beneficiary an endorsement to such policy, in
form and substance satisfactory to Beneficiary in its sole discretion,
confirming the continued priority of the lien of this Deed of Trust
with respect to the remainder of the Land and the Title Insurer's
continuing liability under such policy;
(7) Trustor shall pay promptly to Beneficiary all costs and
expenses incurred by or on behalf of Beneficiary in connection with the
release of the lien of this Deed of Trust on the Six Acre Tracts,
including without limitation all reasonable fees and expenses of
counsel, all recordation fees, the costs of any endorsement to
Beneficiary's title insurance policy required by Beneficiary, and any
reasonable costs and expenses of Trustee;
(8) Trustor and Beneficiary shall have executed and recorded
such reciprocal easement agreements, and such declarations of
covenants, conditions, restrictions or other agreements, the effect of
which would be to burden and benefit the Six Acre Tracts with rights of
access, ingress, and egress, among other things, as Beneficiary and
Trustor shall reasonably request, in such form and content as shall be
satisfactory to Beneficiary and Trustor, and Trustee shall have
received evidence that all easements, cost sharing and similar
arrangements benefitting the Land and Improvements, which in the
reasonable judgment of Trustee are necessary to continue the operations
at the Riviera, have been entered into (or alternatively, Trustee's
receipt of satisfactory assurance that such agreements will be entered
into in due course);
(9) Trustee shall have received evidence that all other
parties that have the right to consent to such release have given such
consent;
(10) Trustee shall have received evidence that the conveyance
of the Six Acre Tracts, or any part thereof, will not have a material
adverse effect on the Riviera;
(11) Trustee shall have received evidence that the balance of
the Land remaining after such severance constitutes (or will
constitute, as a right) a separate parcel for purposes of taxes;
(12) all real property and personal property security for the
payment of the Notes and other Obligations, fees, costs and expenses
described herein, other than the real property comprising the Six Acre
Tracts, is and shall remain subject to the lien of this Deed of Trust;
and
(13) Trustee shall have received such other documents,
opinions and assurances as Trustee may reasonably request (all of the
foregoing to be in a form and substance satisfactory to Trustee).
(c) Any consideration received for a transfer to any person
empowered to exercise the right of eminent domain shall be subject to Section
1.6 hereof.
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1.11 Further Assurances.
(a) At its sole cost and without expense to Trustee or
Beneficiary, Trustor shall do, execute, acknowledge and deliver any and all such
further acts, deeds, conveyances, notices, requests for notices, financing
statements, continuation statements, certificates, assignments, notices of
assignments, agreements, instruments and further assurances, and shall xxxx any
chattel paper, deliver any chattel paper or instruments to Beneficiary and take
any other actions that are necessary, prudent, or requested by Beneficiary or
Trustee to perfect or continue the perfection and first priority of
Beneficiary's security interest in the Trust Estate, (except as expressly
provided in the Security Agreement), to protect the Trust Estate against the
rights, claims, or interests of third persons other than holders of Permitted
Liens or to effect the purposes of this Deed of Trust, including the security
agreement and the absolute assignment of Rents contained herein, or for the
filing, registering or recording thereof.
(b) Trustor shall forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, cause this Deed of Trust
and each instrument of further assurance to be filed, indexed, registered,
recorded, given or delivered in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the title of Trustee and/or Beneficiary to,
the Trust Estate.
1.12 Security Agreement and Financing Statements. Trustor (as debtor)
hereby grants to Beneficiary (as creditor and secured party) a present and
future security interest in all Tangible Collateral, Intangible Collateral, FF&E
(to the extent Beneficiary is permitted, in each applicable FF&E Financing
Agreement, to maintain a security interest therein), Improvements, all other
personal property now or hereafter owned or leased by Trustor or in which
Trustor has or will have any interest, to the extent that such property
constitutes a part of the Trust Estate (whether or not such items are stored on
the premises or elsewhere), Proceeds of the foregoing comprising a portion of
the Trust Estate and all proceeds of insurance policies and consideration awards
arising therefrom and all proceeds, products, substitutions, and accessions
therefor and thereto, subject to Beneficiary's rights to treat such property as
real property as herein provided (collectively, the "Personal Property").
Trustor shall execute any and all documents and writings, including without
limitation financing statements pursuant to the UCC, as may be necessary or
prudent to preserve and maintain the priority of the security interest granted
hereby on property which may be deemed subject to the foregoing security
agreement or as Beneficiary may reasonably request, (other than as expressly
provided in the Security Agreement), and shall pay to Beneficiary on demand any
reasonable expenses incurred by Beneficiary in connection with the preparation,
execution and filing of any such documents. Trustor hereby authorizes and
empowers Beneficiary to execute and file, on Trustor's behalf, all financing
statements and refiling and continuations thereof as advisable to create,
preserve and protect said security interest. This Deed of Trust constitutes both
a real property deed of trust and a "security agreement," within the meaning of
the UCC, and the Trust Estate includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of Trustor
in the Trust Estate. Trustor by executing and delivering this Deed of Trust has
granted to Beneficiary, as security for the Secured Obligations, a security
interest in the Trust Estate.
(a) Fixture Filing. Without in any way limiting the generality of
the immediately preceding paragraph or of the definition of the Trust Estate,
this Deed of Trust constitutes a fixture filing under Section 9-402 of the UCC
(NRS 104.9402). For such purposes, (i) the "debtor" is Trustor and its address
is the address given for it in the initial paragraph of this Deed of Trust; (ii)
the "secured party" is Beneficiary, and its address for the purpose of obtaining
information is the address given for it in the initial paragraph of this Deed of
Trust; (iii) the real estate to which the fixtures are or are to become attached
is Trustor's interest in the land; and (v) the record owner of such real estate
is Trustor.
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(b) Remedies. This Deed of Trust shall be deemed a security
agreement as defined in the UCC and the remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall include
any or all of (i) those prescribed herein, and (ii) those available under
applicable law, and (iii) those available under the UCC, all at Beneficiary's
sole election. In addition, a photographic or other reproduction of this Deed of
Trust shall be sufficient as a financing statement for filing wherever filing
may be necessary to perfect or continue the security interest granted herein.
(c) Derogation of Real Property. It is the intention of the
parties that the filing of a financing statement in the records normally having
to do with personal property shall never be construed as in any way derogating
from or impairing the express declaration and intention of the parties hereto as
hereinabove stated that everything used in connection with the production of
income from the Trust Estate and/or adapted for use therein and/or which is
described or reflected in this Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable, shall be regarded as
part of the real property encumbered by this Deed of Trust irrespective of
whether (i) any such item is physically attached to the Improvements, (ii)
serial numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or in any list
filed with Beneficiary, or (iii) any such item is referred to or reflected in
any such financing statement so filed at any time. It is the intention of the
parties that the mention in any such financing statement of (1) rights in or to
the proceeds of any fire and/or hazard insurance policy, or (2) any award in
eminent domain proceedings for a taking or for loss of value, or (3) Trustor's
interest as lessors in any present or future Space Lease or rights to Rents,
shall never be construed as in any way altering any of the rights of Beneficiary
as determined by this Deed of Trust or impugning the priority of Beneficiary's
real property lien granted hereby or by any other recorded document, but such
mention in the financing statement is declared to be for the protection of
Beneficiary in the event any court or judge shall at any time hold with respect
to the matters set forth in the foregoing clauses (1), (2) and (3) that notice
of Beneficiary's priority of interest to be effective against a particular class
of persons, including but not limited to, the federal government and any
subdivisions or entity of the federal government, must be filed in the UCC
records.
(d) Priority; Permitted Financing of Tangible Collateral. Except
as provided in Section 1.9(d) hereof or as otherwise permitted by the Indenture
or the other Collateral Documents, all Personal Property of any nature
whatsoever, which is subject to the provisions of this security agreement, shall
be purchased or obtained by Trustor in its name and free and clear of any lien
or encumbrance, except for Permitted Liens and the lien hereof, for use only in
connection with the business and operation of the Riviera, and shall be and at
all times remain free and clear of any lease or similar arrangement, chattel
financing, installment sale agreement, security agreement and any encumbrance of
like kind, so that Beneficiary's security interest shall attach to and vest in
Trustor for the benefit of Beneficiary, with the priority herein specified,
immediately upon the installation or use of the Personal Property at the Land
and Trustor warrants and represents that Beneficiary's security interest in the
Personal Property is a validly attached and binding security interest, properly
perfected and prior to all other security interests therein except as otherwise
permitted in this Agreement. The foregoing shall not be construed as limiting
Trustor's rights to transfer Personal Property pursuant to Permitted
Dispositions or to obtain releases of Personal Property from the Lien of this
Deed of Trust pursuant to Section 1.10 hereof.
(e) Preservation of Contractual Rights of Collateral. Trustor
shall, prior to delinquency, default, or forfeiture, perform all obligations and
satisfy all material conditions required on its part to be satisfied to preserve
its rights and privileges under any contract, lease, license, permit, or other
authorization (i) under which it holds any Tangible Collateral or (ii) which
constitutes part of the Intangible Collateral except where Trustor is contesting
such obligations in good faith.
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(f) Removal of Collateral. Except as otherwise permitted herein or
as otherwise permitted by the Indenture or the other Collateral Documents, none
of the Tangible Collateral shall be removed from the Trust Estate without
Beneficiary's prior written consent, and except damaged or obsolete Tangible
Collateral which is either no longer usable or which is removed temporarily for
repair or improvement or removed for replacement on the Trust Estate with
Tangible Collateral of similar function.
(g) Change of Name. Except as permitted by the Indenture or the
other Collateral Documents, Trustor shall not change its corporate or business
name, or do business within the State of Nevada under any name other than such
name, or any trade name(s) other than those as to which Trustor gives prior
written notice to Beneficiary of its intent to use such trade names, or any
other business names (if any) specified in the financing statements delivered to
Beneficiary for filing in connection with the execution hereof, without
providing Beneficiary with the additional financing statement(s) and any other
similar documents deemed reasonably necessary by Beneficiary to assure that its
security interest remains perfected and of undiminished priority in all such
Personal Property notwithstanding such name change.
1.13 Assignment of Rents. The assignment of Space Leases and Rents set
out above in Granting Clause (G) shall constitute an absolute and present
assignment to Beneficiary, subject to the license herein given to Trustor to
collect the Rents and to the provisions of the Indenture, and shall be fully
operative without any further action on the part of any party, and specifically
Beneficiary shall be entitled upon the occurrence of an Event of Default
hereunder to all Rents, whether or not Beneficiary takes possession of the Trust
Estate, or any portion thereof. The absolute assignment contained in Granting
Clause (G) shall not be deemed to impose upon Beneficiary any of the obligations
or duties of Trustor provided in any such Space Lease (including, without
limitation, any liability under the covenant of quiet enjoyment contained in any
lease in the event that any lessee shall have been joined as a party defendant
in any action to foreclose this Deed of Trust and shall have been barred and
foreclosed thereby of all right, title and interest and equity of redemption in
the Trust Estate or any part thereof).
1.14 Expenses.
(a) Trustor shall pay when due and payable all costs, including
without limitation, those reasonable appraisal fees, recording fees, taxes,
brokerage fees and commissions, abstract fees, title policy fees, escrow fees,
attorneys' and paralegal fees, travel expenses, fees for inspecting architect(s)
and engineer(s) and all other costs and expenses of every character which have
been incurred or which may hereafter be incurred by Beneficiary or any assignee
of Beneficiary in connection with the preparation and
(b) Trustor shall, upon demand by Beneficiary, reimburse
Beneficiary or any assignee of Beneficiary for all such reasonable expenses
described in Section 1.14(a) which have been incurred or which shall be incurred
by it; and
(c) Trustor shall indemnify Beneficiary with respect to any
transaction or matter in any way connected with any portion of the Trust Estate,
this Deed of Trust, including any occurrence at, in, on, upon or about the Trust
Estate (including any personal injury, loss of life, or property damage), or
Trustor's use, occupancy, or operation of the Trust Estate, or the filing or
enforcement of any mechanic's lien, or otherwise caused in whole or in part by
any act, omission or negligence occurring on or at the Trust Estate, including
failure to comply with any Legal Requirement or with any requirement of this
22
Deed of Trust be paid or performed by Trustor, unless caused by the gross
negligence or willful misconduct of Beneficiary. If Beneficiary is a party to
any litigation as to which either Trustor is required to indemnify Beneficiary
(or is made a defendant in any action of any kind against Trustor or relating
directly or indirectly to any portion of the Trust Estate) then, at
Beneficiary's option, Trustor shall undertake Beneficiary's defense, using
counsel satisfactory to Beneficiary (and any settlement shall be subject to
Beneficiary's consent, and in any case shall indemnify Beneficiary against such
litigation. Trustor shall pay all reasonable costs and expenses, including
reasonable legal costs, that Beneficiary pays or incurs in connection with any
such litigation. Any amount payable under any indemnity in this Deed of Trust
shall be a demand obligation, shall be added to, and become a part of, the
secured obligations under this Deed of Trust, shall be secured by this Deed of
Trust, and shall bear interest at the interest rate on the Notes. Such indemnity
shall survive any release of this Deed of Trust and any Foreclosure.
1.15 Beneficiary's Cure of Trustor's Default. If Trustor defaults in
the payment of any tax, assessment, lien, encumbrance or other Imposition, in
its obligation to furnish insurance hereunder, or in the performance or
observance of any other covenant, condition or term of this Deed of Trust or any
other Loan Document, Beneficiary may, but is not obligated to, to preserve its
interest in the Trust Estate, perform or observe the same, and all payments made
(whether such payments are regular or accelerated payments) and reasonable costs
and expenses incurred or paid by Beneficiary in connection therewith shall
become due and payable immediately. The amounts so incurred or paid by
Beneficiary, together with interest thereon at the interest rate on the Notes
from the date incurred until paid by Trustor, shall be added to the indebtedness
and secured by the lien of this Deed of Trust. Beneficiary is hereby empowered
to enter and to authorize others to enter upon the Land or any part thereof for
the purpose of performing or observing any such defaulted covenant, condition or
term, without thereby becoming liable to Trustor or any person in possession
holding under Trustor. No exercise of any rights under this Section by
Beneficiary shall cure or waive any Event of Default or notice of default
hereunder or invalidate any act done pursuant hereto or to any such notice, but
shall be cumulative of all other rights and remedies.
1.16 Use of Trust Estate. Trustor covenants that the Trust Estate shall
be used and operated in a manner consistent with the description of the Riviera
in the Offering Circular and shall be open during such days and hours as are
customarily observed by casino-hotels located in Las Vegas, Nevada.
1.17 Compliance with Permitted Lien Agreements. Trustor or any
Affiliate of Trustor shall comply with each and every obligation contained in
any agreement pertaining to a Permitted Lien.
1.18 Defense of Actions. Trustor shall appear in and defend any action
or proceeding affecting or purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee, and shall pay all costs and
expenses, including cost of title search and insurance or other evidence of
title, preparation of survey, and reasonable attorneys' fees in any such action
or proceeding in which Beneficiary or Trustee may appear or may be joined as a
party and in any suit brought by Beneficiary based upon or in connection with
this Deed of Trust or any other Loan Document. Nothing contained in this section
shall, however, limit the right of Beneficiary to appear in such action or
proceeding with counsel of its own choice, either on its own behalf or on behalf
of Trustor.
1.19 Affiliates.
(a) Subject to Trust Deed. Trustor shall cause all of its
Affiliates in any way involved with the operation of the Trust Estate or the
Riviera to observe the covenants and conditions of this Deed of Trust to the
extent necessary to give the full intended effect to such covenants and
conditions and to
23
protect and preserve the security of Beneficiary hereunder. Trustor shall, at
Beneficiary's request, cause any such Affiliate to execute and deliver to
Beneficiary or Trustee such further instruments or documents as Beneficiary may
reasonably deem necessary to effectuate the terms of this Section 1.19.
(b) Restriction on Use of Subsidiary or Affiliate. Trustor shall
not use any Affiliate in the operation of the Trust Estate or the Riviera if
such use would in any way impair the security for the Notes and the Indenture or
circumvent any covenant or condition of this Deed of Trust or of any other Loan
Document.
1.20 Title Insurance. Concurrently with the execution and delivery of
this Deed of Trust, Trustor shall cause to be delivered to Beneficiary at
Trustor's expense, an ALTA extended coverage Lender's Policies of Title
Insurance (1992) in the amount of $175,000,000, showing fee title to the Land
vested in Trustor and the lien of this Deed of Trust to be a first priority
perfected lien, subject only to the standard printed exceptions and such typed
exceptions as Beneficiary may approve, and including such endorsements and
provisions for reinsurance as Beneficiary may request.
ARTICLE TWO
CORPORATE LOAN PROVISIONS
2.1 Interaction with Indenture.
(a) Incorporation by Reference. All terms, covenants, conditions,
provisions and requirements of the Indenture are incorporated by reference in
this Deed of Trust. Any capitalized term used in this Deed of Trust without
definition, but defined in the Indenture, shall have the same meaning here as in
the Indenture.
(b) Conflicts. Notwithstanding any other provision of this Deed of
Trust, the terms and provisions of this Deed of Trust shall be subject and
subordinate to the terms of the Indenture. To the extent that the Indenture
provides Trustor with a particular cure or notice period, or establishes any
limitations or conditions on Beneficiary's actions with 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.
2.2 Other Collateral. This Deed of Trust is one of a number of security
agreements to secure the debt delivered by or on behalf of Trustor pursuant to
the Indenture and the other Loan Documents and securing the Secured Obligations
hereunder. All potential junior Lien claimants are placed on notice that, under
any of the Collateral Documents or otherwise (such as by separate future
unrecorded agreement between Trustor and Beneficiary), other collateral for the
Secured Obligations hereunder (i.e., collateral other than the Trust Estate)
may, under certain circumstances, be released without a corresponding reduction
in the total principal amount secured by this Deed of Trust. Such a release
would decrease the amount of collateral securing the same indebtedness, thereby
increasing the burden
24
on the remaining Trust Estate created and continued by this Deed of Trust. No
such release shall impair the priority of the lien of this Deed of Trust. By
accepting its interest in the Trust Estate, each and every junior Lien claimant
shall be deemed to have acknowledged the possibility of, and consented to, any
such release. Nothing in this paragraph shall impose any obligation upon
Beneficiary.
ARTICLE THREE
DEFAULTS AND REMEDIES
3.0.1 Event of Default. The term "Event of Default," wherever used in
this Deed of Trust, shall mean any one or more of the events of default listed
in Section 6.01 of the Indenture, subject to such cure rights as may be
expressly set forth in the Indenture (whether any such event shall be voluntary
or involuntary or come about or be effected by operation of law or pursuant to
or in compliance with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body).
3.1 Acceleration of Maturity. If an Event of Default occurs,
Beneficiary may (except that such acceleration shall be automatic if the Event
of Default is caused by a Trustor's Bankruptcy), in accordance with Section 6.02
of the Indenture, declare the Notes and all indebtedness or sums secured hereby,
to be due and payable immediately, and upon such declaration such principal and
interest and other sums shall immediately become due and payable without demand,
presentment, notice or other requirements of any kind (all of which Trustor
waives) notwithstanding anything in this Deed of Trust or any other Loan
Document or applicable law to the contrary.
3.2 Protective Advances. If Trustor fails to make any payment or
perform any other obligation under the Notes or any other Loan Document, then
without thereby limiting Beneficiary's other rights or remedies, waiving or
releasing any of Trustor's obligations, or imposing any obligation on
Beneficiary, Beneficiary may either advance any amount owing or perform any or
all actions that Beneficiary considers necessary or appropriate to cure such
default. All such advances shall constitute "Protective Advances." No sums
advanced or performance rendered by Beneficiary shall cure, or be deemed a
waiver of any Event of Default.
3.3 Institution of Equity Proceedings. If an Event of Default occurs,
Beneficiary may institute an action, suit or proceeding in equity for specific
performance of this Deed of Trust, the Notes or any other Loan Document, all of
which shall be specifically enforceable by injunction or other equitable remedy.
Trustor waives any defense based on laches or any applicable statute of
limitations.
3.4 Beneficiary's Power of Enforcement.
(a) If an Event of Default occurs, Beneficiary shall be entitled,
at its option and in its sole and absolute discretion, to prepare and record on
its own behalf, or to deliver to Trustee for recording, if appropriate, written
declaration of default and demand for sale and written Notice of Breach and
Election to Sell (or other statutory notice) to cause the Trust Estate to be
sold to satisfy the obligations hereof, and in the case of delivery to Trustee,
Trustee shall cause said notice to be filed for record.
(b) After the lapse of such time as may then be required by law
following the recordation of said Notice of Breach and Election to Sell, and
notice of sale having been given as then required by
25
law, including compliance with all applicable Gaming Laws, Trustee without
demand on Trustor, shall sell the Trust Estate or any portion thereof at the
time and place fixed by it in said notice, either as a whole or in separate
parcels, and in such order as it may determine, at public auction to the highest
bidder, of cash in lawful money of the United States payable at the time of
sale. Trustee may, for any cause it deems expedient, postpone the sale of all or
any portion of said property until it shall be completed and, in every case,
notice of postponement shall be given by public announcement thereof at the time
and place last appointed for the sale and from time to time thereafter Trustee
may postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall execute and deliver to the purchaser its Deed, Xxxx
of Sale, or other instrument conveying said property so sold, but without any
covenant or warranty, express or implied. The recitals in such instrument of
conveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including Beneficiary, may bid at the sale.
(c) After deducting all costs, fees and expenses of Trustee and of
this Deed of Trust, including, without limitation, costs of evidence of title
and reasonable attorneys' fees of Trustee or Beneficiary in connection with a
sale, Trustee shall apply the proceeds of such sale to payment of all sums
expended under the terms hereof not then repaid in accordance with the terms of
the Indenture, with accrued interest at the interest rate on the Notes then to
the payment of all other sums then secured hereby and the remainder, if any, to
the person or persons legally entitled thereto as provided in NRS 40.462.
(d) Subject to compliance with applicable Gaming Laws, if any Event
of Default occurs, Beneficiary may, either with or without entry or taking
possession of the Trust Estate, and without regard to whether or not the
indebtedness and other sums secured hereby shall be due and without prejudice to
the right of Beneficiary thereafter to bring an action or proceeding to
foreclose or any other action for any default existing at the time such earlier
action was commenced, proceed by any appropriate action or proceeding: (1) to
enforce payment of the Notes, to the extent permitted by law, or the performance
of any term hereof or any other right; (2) to foreclose this Deed of Trust in
any manner provided by law for the foreclosure of mortgages or deeds of trust on
real property and to sell, as an entirety or in separate lots or parcels, the
Trust Estate or any portion thereof pursuant to the laws of the State of Nevada
or under the judgment or decree of a court or courts of competent jurisdiction,
and Beneficiary shall be entitled to recover in any such proceeding all costs
and expenses incident thereto, including reasonable attorneys' fees in such
amount as shall be awarded by the court; (3) to exercise any or all of the
rights and remedies available to it under the Indenture; and (4) to pursue any
other remedy available to it. Beneficiary shall take action either by such
proceedings or by the exercise of its powers with respect to entry or taking
possession, or both, as Beneficiary may determine.
(e) The remedies described in this Section 3.5 may be exercised
with respect to all or any portion of the Personal Property, either
simultaneously with the sale of any real property encumbered hereby or
independent thereof. Beneficiary shall at any time be permitted to proceed with
respect to all or any portion of the Personal Property in any manner permitted
by the UCC and Section 3.17. Trustor agrees that Beneficiary's inclusion of all
or any portion of the Personal Property in a sale or other remedy exercised with
respect to the real property encumbered hereby, as permitted by the UCC, is a
commercially reasonable disposition of such property.
3.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply
Income.
(a) Subject to compliance with applicable Gaming Laws, if an Event
of Default occurs, (i) Trustor, upon demand of Beneficiary, shall forthwith
surrender to Beneficiary the actual possession and, if and to the extent
permitted by law, Beneficiary itself, or by such officers or agents as it may
26
appoint, may enter and take possession of all the Trust Estate including the
Personal Property, without liability for trespass, damages or otherwise, and may
exclude Trustor and its agents and employees wholly therefrom and may have joint
access with Trustor to the books, papers and accounts of Trustor; and (ii)
Trustor shall pay monthly in advance to Beneficiary on Beneficiary's entry into
possession, or to any receiver appointed to collect the Rents, all Rents then
due and payable.
(b) If Trustor shall for any reason fail to surrender or deliver
the Trust Estate, the Personal Property or any part thereof after Beneficiary's
demand, Beneficiary may obtain a judgment or decree conferring on Beneficiary or
Trustee the right to immediate possession or requiring Trustor to deliver
immediate possession of all or part of such property to Beneficiary or Trustee
and Trustor hereby specifically consents to the entry of such judgment or
decree. Trustor shall pay to Beneficiary or Trustee, upon demand, all costs and
expenses of obtaining such judgment or decree and reasonable compensation to
Beneficiary or Trustee, their attorneys and agents, and all such costs, expenses
and compensation shall, until paid, be secured by the lien of this Deed of
Trust.
(c) Subject to compliance with applicable Gaming Laws, upon every
such entering upon or taking of possession, Beneficiary or Trustee may hold,
store, use, operate, manage and control the Trust Estate and conduct the
business thereof, and, from time to time in its sole and absolute discretion and
without being under any duty to so act:
(1) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures, personalty and
other property;
(2) insure or keep the Trust Estate insured;
(3) manage and operate the Trust Estate and exercise all the
rights and powers of Trustor in their name or otherwise with respect to the
same;
(4) enter into agreements with others to exercise the powers
herein granted Beneficiary or Trustee, all as Beneficiary or Trustee from time
to time may determine; and, subject to the absolute assignment of the Space
Leases and Rents to Beneficiary, Beneficiary or Trustee may collect and receive
all the Rents, including those past due as well as those accruing thereafter;
and shall apply the monies so received by Beneficiary or Trustee in such
priority as Beneficiary may determine to (1) the payment of interest and
principal due and payable on the Notes, (2) the deposits for taxes and
assessments and insurance premiums due, (3) the cost of insurance, taxes,
assessments and other proper charges upon the Trust Estate or any part thereof;
(4) the compensation, expenses and disbursements of the agents, attorneys and
other representatives of Beneficiary or Trustee; and (5) any other charges or
costs required to be paid by Trustor under the terms hereof.
(5) rent or sublet the Trust Estate or any portion thereof for
any purpose permitted by this Deed of Trust.
Beneficiary or Trustee shall surrender possession of the Trust Estate
and the Personal Property to Trustor only when all that is due upon such
interest and principal, tax and insurance deposits, and all amounts under any of
the terms of the Indenture or this Deed of Trust, shall have been paid and all
defaults made good. The same right of taking possession, however, shall exist if
any subsequent Event of Default shall occur and be continuing.
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3.6 Space Leases. Beneficiary is authorized to foreclose this Deed of
Trust subject to the rights of any tenants of the Trust Estate, and the failure
to make any such tenants parties defendant to any such foreclosure proceedings
and to foreclose their rights shall not be, nor be asserted by Trustor to be, a
defense to any proceedings instituted by Beneficiary to collect the sums secured
hereby or to collect any deficiency remaining unpaid after the foreclosure sale
of the Trust Estate, or any portion thereof. Unless otherwise agreed by
Beneficiary in writing, all Space Leases executed subsequent to the date hereof,
or any part thereof, shall be subordinate and inferior to the lien of this Deed
of Trust; provided, however that (i) Beneficiary shall at Trustor's request
execute a non-disturbance and attornment agreement in connection with applicable
lease transactions; and (ii) from time to time Beneficiary may execute and
record among the land records of the jurisdiction where this Deed of Trust is
recorded, subordination statements with respect to such of said Space Leases as
Beneficiary may designate in its sole discretion, whereby the Space Leases so
designated by Beneficiary shall be made superior to the lien of this Deed of
Trust for the term set forth in such subordination statement. From and after the
recordation of such subordination statements, and for the respective periods as
may be set forth therein, the Space Leases therein referred to shall be superior
to the lien of this Deed of Trust and shall not be affected by any foreclosure
hereof. All such Space Leases shall contain a provision to the effect that the
Trustor and Space Lessee recognize the right of Beneficiary to elect and to
effect such subordination of this Deed of Trust and consents thereto.
3.7 Purchase by Beneficiary. Upon any foreclosure sale (whether
judicial or nonjudicial), Beneficiary may bid for and purchase the property
subject to such sale and, upon compliance with the terms of sale, may hold,
retain and possess and dispose of such property in its own absolute right
without further accountability.
3.8 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. Trustor agrees to the full extent permitted by law that if an Event of
Default occurs, neither Trustor nor anyone claiming through or under it shall or
will set up, claim or seek to take advantage of any appraisement, valuation,
stay, extension or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust or the
absolute sale of the Trust Estate or any portion thereof or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereof, and Trustor for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprising the Trust Estate marshalled upon any foreclosure of the lien hereof
and agrees that Trustee or any court having jurisdiction to foreclose such lien
may sell the Trust Estate in part or as an entirety.
3.9 Receiver. If an Event of Default occurs, Beneficiary, to the extent
permitted by law and in accordance with all applicable Gaming Laws, and without
regard to the value, adequacy or occupancy of the security for the indebtedness
and other sums secured hereby, shall be entitled as a matter of right if it so
elects to the appointment of a receiver to enter upon and take possession of the
Trust Estate and to collect all Rents and apply the same as the court may
direct, and such receiver may be appointed by any court of competent
jurisdiction upon application by Beneficiary. Beneficiary may have a receiver
appointed and shall promptly notify Trustor of such appointment of a receiver,
and Beneficiary may waive any requirement that the receiver post a bond;
provided, however, that failure to notify Trustor or any other third party shall
not affect the enforceability of any actions taken by the receiver. Beneficiary
shall have the power to designate and select the Person who shall serve as the
receiver and to negotiate all terms and conditions under which such receiver
shall serve. Any receiver appointed on Beneficiary's behalf may be an Affiliate
of Beneficiary. The expenses, including receiver's fees, attorneys' fees, costs
and agent's compensation, incurred pursuant to the powers herein contained shall
be secured by this Deed
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of Trust. The right to enter and take possession of and to manage and operate
the Trust Estate and to collect all Rents, whether by a receiver or otherwise,
shall be cumulative to any other right or remedy available to Beneficiary under
this Deed of Trust, the Indenture or otherwise available to Beneficiary and may
be exercised concurrently therewith or independently thereof. Beneficiary shall
be liable to account only for such Rents (including, without limitation,
security deposits) actually received by Beneficiary, whether received pursuant
to this section or any other provision hereof. Notwithstanding the appointment
of any receiver or other custodian, Beneficiary shall be entitled as pledgee to
the possession and control of any cash, deposits, or instruments at the time
held by, or payable or deliverable under the terms of this Deed of Trust to,
Beneficiary.
3.10 Suits to Protect the Trust Estate. Beneficiary shall have the
power and authority to institute and maintain any suits and proceedings as
Beneficiary, in its sole and absolute discretion, may deem advisable (a) to
prevent any impairment of the Trust Estate by any acts which may be unlawful or
any violation of this Deed of Trust, (b) to preserve or protect its interest in
the Trust Estate, or (c) to restrain the enforcement of or compliance with any
legislation or other Legal Requirement that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Beneficiary's interest
3.11 Proofs of Claim. In the case of any receivership, Insolvency,
Bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Trustor, any Affiliate or any guarantor, co-maker
or endorser of any of Trustor's obligations, its creditors or its property,
Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim or other documents as it may deem to be necessary or advisable
in order to have its claims allowed in such proceedings for the entire amount
due and payable by Trustor under the Notes or any other Loan Document, at the
date of the institution of such proceedings, and for any additional amounts
which may become due and payable by Trustor after such date.
3.12 Trustor to Pay the Notes on Any Default in Payment; Application of
Monies by Beneficiary.
(a) In case of a foreclosure sale of all or any part of the Trust
Estate and of the application of the proceeds of sale to the payment of the sums
secured hereby, Beneficiary shall be entitled to enforce payment from Trustor of
any additional amounts then remaining due and unpaid and to recover judgment
against Trustor for any portion thereof remaining unpaid, with interest at the
interest rate on the Notes, in accordance with NRS 40.451 et seq..
(b) Trustor hereby agrees to the extent permitted by law, that no
recovery of any such judgment by Beneficiary or other action by Beneficiary and
no attachment or levy of any execution upon any of the Trust Estate or any other
property shall in any way affect the Lien and security interest of this Deed of
Trust upon the Trust Estate or any part thereof or any Lien, rights, powers or
remedies of Beneficiary hereunder, but such Lien, rights, powers and remedies
shall continue unimpaired as before.
(c) Any monies collected or received by Beneficiary under this
Section 3.13 shall be first applied to the payment of compensation, expenses and
disbursements of the agents, attorneys and other representatives of Beneficiary,
and the balance remaining shall be applied to the payment of amounts due and
unpaid under the Notes.
(d) The provisions of this section shall not be deemed to limit or
otherwise modify the provisions of any guaranty of the indebtedness evidenced by
the Notes.
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3.13 Delay or Omission; No Waiver. No delay or omission of Beneficiary
or Noteholder to exercise any right, power or remedy upon any Event of Default
shall exhaust or impair any such right, power or remedy or shall be construed to
waive any such Event of Default or to constitute acquiescence therein. Every
right, power and remedy given to Beneficiary whether contained herein or in the
Indenture or otherwise available to Beneficiary may be exercised from time to
time and as often as may be deemed expedient by Beneficiary.
3.14 No Waiver of One Default to Affect Another. No waiver of any Event
of Default hereunder shall extend to or affect any subsequent or any other Event
of Default then existing, or impair any rights, powers or remedies consequent
thereon. If Beneficiary or a majority of Noteholders, to the extent applicable
under the Indenture, (a) grants forbearance or an extension of time for the
payment of any sums secured hereby; (b) takes other or additional security for
the payment thereof; (c) waives or does not exercise any right granted in the
Notes, the Indenture, this Deed of Trust or any other Loan Document; (d)
releases any part of the Trust Estate from the lien or security interest of this
Deed of Trust or any other instrument securing the Notes; (e) consents to the
filing of any map, plat or replat of the Land; (f) consents to the granting of
any easement on the Land; or (g) makes or consents to any agreement changing the
terms of this Deed of Trust or any other Loan Document subordinating the lien or
any charge hereof, no such act or omission shall release, discharge, modify,
change or affect the original liability under the Notes, this Deed of Trust or
any other Loan Document or otherwise of Trustor, or any subsequent purchaser of
the Trust Estate or any part thereof or any maker, co-signer, surety or
guarantor. No such act or omission shall preclude Beneficiary from exercising
any right, power or privilege herein granted or intended to be granted in case
of any Event of Default then existing or of any subsequent Event of Default,
nor, except as otherwise expressly provided in an instrument or instruments
executed by Beneficiary, shall the lien or security interest of this Deed of
Trust be altered thereby, except to the extent expressly provided in any
releases, maps, easements or subordinations described in clause (d), (e), (f) or
(g) above of this Section 3.15. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the Trust Estate,
Beneficiary, without notice to any person, firm or corporation, is hereby
authorized and empowered to deal with any such vendee or transferee with
reference to the Trust Estate or the indebtedness secured hereby, or with
reference to any of the terms or conditions hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any of the liabilities or undertakings hereunder, or
waiving its right to declare such sale or transfer an Event of Default as
provided herein. Notwithstanding anything to the contrary contained in this Deed
of Trust or any other Loan Document, (i) in the case of any non-monetary Event
of Default, Beneficiary may continue to accept payments due hereunder without
thereby waiving the existence of such or any other Event of Default and (ii) in
the case of any monetary Event of Default, Beneficiary may accept partial
payments of any sums due hereunder without thereby waiving the existence of such
Event of Default if the partial payment is not sufficient to completely cure
such Event of Default.
3.15 Discontinuance of Proceedings; Position of Parties Restored. If
Beneficiary shall have proceeded to enforce any right or remedy under this Deed
of Trust by foreclosure, entry of judgement or otherwise and such proceedings
shall have been discontinued or abandoned for any reason, then and in every such
case Trustor and Beneficiary shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of Beneficiary shall
continue as if no such proceedings had occurred or had been taken.
3.16 Remedies Cumulative. No right, power or remedy, including without
limitation remedies with respect to any security for the Notes, conferred upon
or reserved to Beneficiary by the Note Guarantees, this Deed of Trust or any
other Loan Document is exclusive of any other right, power or
30
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given
hereunder or under any other Loan Document, now or hereafter existing at law, in
equity or by statute, and Beneficiary shall be entitled to resort to such
rights, powers, remedies or security as Beneficiary shall in its sole and
absolute discretion deem advisable, subject to the terms of the Indenture. The
rights and remedies of Beneficiary upon the occurrence of one or more defaults
by Trustor may be exercised by Beneficiary, in the sole discretion of
Beneficiary, either alternatively, concurrently, or consecutively in any order.
The exercise by Beneficiary or Trustee, of any one or more of such rights and
remedies shall not be construed to be an election of remedies nor a waiver of
any other rights and remedies Beneficiary might have unless, and limited to the
extent that, Beneficiary shall so elect or so waive by an instrument in writing
delivered to Trustee. Without limiting the generality of the foregoing, to the
extent that this Deed of Trust covers the real property and personal property,
Beneficiary may, in the sole discretion of Beneficiary, either alternatively,
concurrently, or consecutively in any order:
(a) Proceed as to both the real property, the personal property
and other collateral in accordance with Beneficiary's rights and
remedies in respect to the real property; or
(b) Proceed as to the real property in accordance with
Beneficiary's rights and remedies in respect to the real property and
proceed as to the personal property and other collateral in accordance
with Beneficiary's rights and remedies in respect to the personal
property and other collateral;
Beneficiary may in the sole discretion of Beneficiary, appoint Trustee as the
agent of Beneficiary for the purpose of disposition of the personal property and
other collateral in accordance with the Nevada Uniform Commercial Code--Secured
Transactions.
If Beneficiary should elect to proceed as to both the real
property, the personal property and other collateral in accordance with
Beneficiary's rights and remedies in respect to real property:
(a) All the real property and all the personal property and other
collateral may be sold, in the manner and at the time and place
provided in this Deed of Trust, in one lot, or in separate lots
consisting of any combination or combinations of the real property, the
personal property and other collateral, as the Beneficiary may elect,
in the sole discretion of Beneficiary.
(b) Trustor acknowledges and agrees that a disposition of the
personal property and other collateral in accordance with Beneficiary's
rights and remedies in respect to real property, as hereinabove
provided, is a commercially reasonable disposition of the collateral.
If Beneficiary should elect to proceed as to the personal property
and other collateral in accordance with Beneficiary's rights and remedies in
respect to personal property and other collateral, Beneficiary shall have all
the rights and remedies conferred on a secured party by NRS 104.9501 to NRS
104.9507, both inclusive.
3.17 Interest After Event of Default. If an Event of Default shall have
occurred and is continuing, all sums outstanding and unpaid under the Notes and
this Deed of Trust shall bear interest at the interest rate on the Notes until
such Event of Default has been cured. Trustor's obligation to pay such interest
shall be secured by this Deed of Trust.
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3.18 Foreclosure; Expenses of Litigation. If Trustee forecloses,
reasonable attorneys' fees for services in the supervision of said foreclosure
proceeding shall be allowed to the Trustee and Beneficiary as part of the
foreclosure costs. In the event of foreclosure of the lien hereof, there shall
be allowed and included as additional indebtedness all reasonable expenditures
and expenses which may be paid or incurred by or on behalf of Beneficiary for
attorneys' fees, appraiser's fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be estimated as
to items to be expended after foreclosure sale or entry of the decree) of
procuring all such abstracts of title, title searches and examinations, title
insurance policies and guarantees, and similar data and assurances with respect
to title as Beneficiary may deem reasonably advisable either to prosecute such
suit or to evidence to a bidder at any sale which may be had pursuant to such
decree the true condition of the title to or the value of the Trust Estate or
any portion thereof. All expenditures and expenses of the nature in this section
mentioned, and such expenses and fees as may be incurred in the protection of
the Trust Estate and the maintenance of the lien and security interest of this
Deed of Trust, including the fees of any attorney employed by Beneficiary in any
litigation or proceeding affecting this Deed of Trust or any other Loan
Document, the Trust Estate or any portion thereof, including, without
limitation, civil, probate, appellate and bankruptcy proceedings, or in
preparation for the commencement or defense of any proceeding or threatened suit
or proceeding, shall be immediately due and payable by Trustor, with interest
thereon at the interest rate on the Notes, and shall be secured by this Deed of
Trust. Trustee waives its right to any statutory fee in connection with any
judicial or nonjudicial foreclosure of the lien hereof and agrees to accept a
reasonable fee for such services.
3.19 Deficiency Judgments. If after foreclosure of this Deed of Trust
or Trustee's sale hereunder, there shall remain any deficiency with respect to
any amounts payable under the Notes or hereunder or any amounts secured hereby,
and Beneficiary shall institute any proceedings to recover such deficiency or
deficiencies, all such amounts shall continue to bear interest at the interest
rate on the Notes. To the fullest extent permitted by law, Trustor waives any
defense to Beneficiary's recovery against Trustor of any deficiency after any
foreclosure sale of the Trust Estate. Trustor expressly waives any defense or
benefits that may be derived from any statute granting Trustor any defense to
any such recovery by Beneficiary. In addition, Beneficiary and Trustee shall be
entitled to recovery of all of their reasonable costs and expenditures
(including without limitation any court imposed costs) in connection with such
proceedings, including their reasonable attorneys' fees, appraisal fees and the
other costs, fees and expenditures referred to in Section 3.19 above. This
provision shall survive any foreclosure or sale of the Trust Estate, any portion
thereof and/or the extinguishment of the lien hereof.
3.20 Waiver of Jury Trial. To the fullest extent permitted by law,
Beneficiary and Trustor each waive any right to have a jury participate in
resolving any dispute whether sounding in contract, tort or otherwise arising
out of, connected with, related to or incidental to the relationship established
between them in connection with the Notes, this Deed of Trust or any other Loan
Document. Any such disputes shall be resolved in a bench trial without a jury.
3.21 Exculpation of Beneficiary. The acceptance by Beneficiary of the
assignment contained herein with all of the rights, powers, privileges and
authority created hereby shall not, prior to entry upon and taking possession of
the Trust Estate by Beneficiary, be deemed or construed to make Beneficiary a
"mortgagee in possession"; nor thereafter or at any time or in any event
obligate Beneficiary to appear in or defend any action or proceeding relating to
the Space Leases, the Rents or the Trust Estate, or to take any action hereunder
or to expend any money or incur any expenses or perform or discharge any
obligation, duty or liability under any Space Lease or to assume any obligation
or responsibility for any security deposits or other deposits except to the
extent such deposits are actually received by Beneficiary,
32
nor shall Beneficiary, prior to such entry and taking, be liable in any way for
any injury or damage to person or property sustained by any Person in or about
the Trust Estate.
3.22 Approval of Gaming Authority. Beneficiary and Trustee acknowledge,
understand and agree that, to the extent prior approval of the Gaming Authority
is required pursuant to the Gaming Control Acts for the exercise, operation and
effectiveness of any remedy hereunder or under any other Loan Document for the
taking of any action that may be taken by Beneficiary or Trustee hereunder or
under any other Loan Document, such remedy or action shall be subject to such
prior approval of the Gaming Authority of the State of Nevada.
ARTICLE FOUR
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust, Trustor
and Beneficiary agree as follows.
4.1 Exercise of Remedies by Trustee. To the extent that this Deed of
Trust or applicable law, including all applicable Gaming Laws, authorizes or
empowers Beneficiary to exercise any remedies set forth in Article Four hereof
or otherwise, or perform any acts in connection therewith, Trustee (but not to
the exclusion of Beneficiary unless so required under the law of the State of
Nevada) shall have the power to exercise any or all such remedies, and to
perform any acts provided for in this Deed of Trust in connection therewith, all
for the benefit of Beneficiary and on Beneficiary's behalf in accordance with
applicable law of the State of Nevada. In connection therewith, Trustee: (a)
shall not exercise, or waive the exercise of, any Beneficiary's Remedies (other
than any rights or Trustee to any indemnity or reimbursement), except at
Beneficiary's request, and (b) shall exercise, or waive the exercise of, any or
all of Beneficiary's remedies at Beneficiary's request, and in accordance with
Beneficiary's directions as to the manner of such exercise or waiver. Trustee
may, however, decline to follow Beneficiary's request or direction if Trustee
shall be advised by counsel that the action or proceeding, or manner thereof, so
directed may not lawfully be taken or waived.
4.2 Rights and Privileges of Trustee. To the extent that this Deed of
Trust requires Trustor to indemnify Beneficiary or reimburse Beneficiary for any
expenditures Beneficiary may incur, Trustee shall be entitled to the same
indemnity and the same rights to reimbursement of expenses as Beneficiary,
subject to such limitations and conditions as would apply in the case of
Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary's liability as to any matter, Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Trustor, pursuant to
this Deed of Trust, appoints Beneficiary as Trustor's attorney in fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Trustor's behalf without joinder or confirmation by the
other.
4.3 Resignation or Replacement of Trustee. Trustee may resign by an
instrument in writing addressed to Beneficiary, and Trustee may be removed at
any time with or without cause (i.e., in Beneficiary's sole and absolute
discretion) by an instrument in writing executed by Beneficiary. In case of the
death, resignation, removal or disqualification of Trustee or if for any reason
Beneficiary shall deem it desirable to appoint a substitute, successor or
replacement Trustee to act instead of Trustee originally named (or in place of
any substitute, successor or replacement Trustee), then Beneficiary shall have
the right and is hereby authorized and empowered to appoint a successor,
substitute or replacement
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Trustee, without any formality other than appointment and designation in writing
executed by Beneficiary, which instrument shall be recorded if required by the
law of the State of Nevada. The law of the State of Nevada shall govern the
qualifications of any Trustee. The authority conferred upon Trustee by this Deed
of Trust shall automatically extend to any and all other successor, substitute
and replacement Trustee(s) successively until the Secured Obligations have been
paid in full or the Trust Estate has been sold hereunder or released in
accordance with the provisions of the Loan Documents. Beneficiary's written
appointment and designation of any Trustee shall be full evidence of
Beneficiary's right and authority to make the same and of all facts therein
recited. No confirmation, authorization, approval or other action by Trustor
shall be required in connection with any resignation or other replacement of
Trustee.
4.4 Authority of Beneficiary. If Beneficiary is a banking corporation,
state banking corporation or a national banking association and the instrument
of appointment of any successor or replacement Trustee is executed on
Beneficiary's behalf by an officer of such corporation, state banking
corporation or national banking association, then such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of Beneficiary.
4.5 Effect of Appointment of Successor Trustee. Upon the appointment
and designation of any successor, substitute or replacement Trustee, Trustee's
entire estate and title in the Trust Estate shall vest in the designated
successor, substitute or replacement Trustee. Such successor, substitute or
replacement Trustee shall thereupon succeed to and shall hold, possess and
execute all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee. All references herein to Trustee shall be deemed to
refer to Trustee (including any successor or substitute appointed and designated
as herein provided) from time to time acting hereunder.
4.6 Confirmation of Transfer and Succession. Upon the written request
of Beneficiary or of any successor, substitute or replacement Trustee, any
former Trustee ceasing to act shall execute and deliver an instrument
transferring to such successor, substitute or replacement Trustee all of the
right, title, estate and interest in the Trust Estate of Trustee so ceasing to
act, together with all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee, and shall duly assign, transfer and deliver all
properties and moneys held by said Trustee hereunder to said successor,
substitute or replacement Trustee.
4.7 Ratification. Trustor hereby ratifies and confirms any and all acts
that any Trustee may take or perform by virtue of this Deed of Trust.
4.8 Exculpation. Trustee shall not be liable for any error of judgment
or act done by Trustee in good faith, or otherwise be responsible or accountable
under any circumstances whatsoever, except for Trustee's gross negligence,
willful misconduct or knowing violation of law. Trustee shall have the right to
rely on any instrument, document or signature authorizing or supporting any
action taken or proposed to be taken by it hereunder, believed by it in good
faith to be genuine. All moneys received by Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated in any manner from any other moneys (except
to the extent required by law). Trustee shall be under no liability for interest
on any moneys received by it hereunder.
4.9 Endorsement and Execution of Documents. Upon Beneficiary's written
request, Trustee shall, without liability or notice to Trustor, execute, consent
to, or join in any instrument or agreement
34
in connection with or necessary to effectuate the purposes of the Loan
Documents. Trustor hereby irrevocably designates Trustee as its attorney in fact
to execute, acknowledge and deliver, on Trustor's behalf and in Trustor's name,
all instruments or agreements necessary to implement any provision(s) of this
Deed of Trust or to further perfect the lien created by this Deed of Trust on
the Trust Property. This power of attorney shall be deemed to be coupled with an
interest and shall survive any disability of Trustor.
4.10 Multiple Trustees. If Beneficiary appoints multiple trustees, then
any Trustee, individually, may exercise all powers granted to Trustee under this
instrument, without the need for action by any other Trustee(s).
4.11 Terms of Trustee's Acceptance. Trustee accepts the trust created
by this Deed of Trust upon the following terms and conditions:
(a) Delegation. Trustee may exercise any of its powers through
appointment of attorney(s) in fact or agents.
(b) Counsel. Trustee may select and employ legal counsel
(including any law firm representing Beneficiary). Trustor shall reimburse all
reasonable legal fees and expenses that Trustee may thereby incur.]
(c) Security. Trustee shall be under no obligation to take any
action upon any Event of Default unless furnished security or indemnity, in form
satisfactory to Trustee, against costs, expenses, and liabilities that Trustee
may incur.
(d) Costs and Expenses. Trustor shall reimburse Trustee, as part
of the Secured Obligations hereunder, for all reasonable disbursements and
expenses (including reasonable legal fees and expenses) incurred by reason of
and as provided for in this Deed of Trust, including any of the foregoing
incurred in Trustee's administering and executing the trust created by this Deed
of Trust and performing Trustee's duties and exercising Trustee's powers under
this Deed of Trust.
(e) Release. Pursuant to the terms in this Section 4.11(e) and
Section 5.10, upon payment of the Secured Obligations hereunder, Beneficiary
shall request Trustee to reconvey this Deed of Trust and shall surrender all the
Secured Obligations hereunder to Trustee. Trustee shall release this Deed of
Trust without charge to Trustor. Trustor shall pay all costs of recordation, if
any.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
5.1 Heirs, Successors and Assigns Included in Parties. Whenever
one of the parties hereto is named or referred to herein, the heirs, successors
and assigns of such party shall be included, and subject to the limitations set
forth in Section 1.10, all covenants and agreements contained in this Deed of
Trust, by or on behalf of Trustor or Beneficiary shall bind and inure to the
benefit of its heirs, successors and assigns, whether so expressed or not.
35
5.2 Addresses for Notices, Etc. Any notice, report, demand or
other instrument authorized or required to be given or furnished under this Deed
of Trust to Trustor or Beneficiary shall be deemed given or furnished (i) when
addressed to the party intended to receive the same, at the address of such
party set forth below, and delivered at such address or (ii) three (3) days
after the same is deposited in the United States mail as first class certified
mail, return receipt requested, postage paid, whether or not the same is
actually received by such party:
Beneficiary: Norwest Bank Minnesota, National Association
Corporate Trust Department
6th and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
Trustor: Riviera Holdings Corporation 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxx, Xxxxxx
00000 Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Dechert Price & Xxxxxx 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Trustee: United Title of Nevada 0000 Xxxxxx
Xxxxxx Xxxxxxx, #000
Xxx Xxxxx, Xxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxx
5.3 Change of Notice Address. Any person may change the address to
which any such notice, report, demand or other instrument is to be delivered or
mailed to that person, by furnishing written notice of such change to the other
party, but no such notice of change shall be effective unless and until received
by such other party.
5.4 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Deed of Trust are for convenience of reference only, are
not to be considered a part hereof, and shall not limit or expand or otherwise
affect any of the terms hereof.
5.5 Invalid Provisions to Affect No Others. In the event that any of
the covenants, agreements, terms or provisions contained herein or in the Notes,
the Indenture
36
or any other Loan Document shall be invalid, illegal or unenforceable in any
respect, the validity of the lien hereof and the remaining covenants,
agreements, terms or provisions contained herein or in the Notes, the Indenture,
the Subsidiary Guarantees or any other Loan Document shall be in no way
affected, prejudiced or disturbed thereby. To the extent permitted by law,
Trustor waives any provision of law which renders any provision hereof
prohibited or unenforceable in any respect.
5.6 Changes and Priority Over Intervening Liens. Neither this Deed of
Trust nor any term hereof may be changed, waived, discharged or terminated
orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. Any agreement hereafter made by Trustor and
Beneficiary relating to this Deed of Trust shall be superior to the rights of
the holder of any intervening lien or encumbrance.
5.7 Estoppel Certificates. Within ten Business Days after Beneficiary's
written request, Trustor shall from time to time, but no more than twice per any
twelve (12) month period, execute a certificate, in recordable form (an
"Estoppel Certificate"), stating, except to the extent it would be inaccurate to
so state: (a) the current amount of the Secured Obligations hereunder and all
elements thereof, including principal, interest, and all other elements; (b)
Trustor has no defense, offset, claim, counterclaim, right of recoupment,
deduction, or reduction against any of the Secured Obligations hereunder; (c)
none of the Loan Documents have been amended, whether orally or in writing; (d)
Trustor has no claims against Beneficiary of any kind; (e) any Power of Attorney
granted to Beneficiary is in full force and effect; and (f) such other matters
relating to this Deed of Trust, any Loan Documents and the relationship of
Trustor and Beneficiary as Beneficiary shall request. In addition, the Estoppel
Certificate shall set forth the reasons why it would be inaccurate to make any
of the foregoing assurances ("a" through "f").
5.8 Governing Law. This Deed of Trust shall be construed, interpreted,
enforced and governed by and in accordance with the laws of the State of Nevada,
without regard to its choice of law provisions.
5.9 Required Notices. Trustor shall notify Beneficiary promptly of the
occurrence of any of the following and shall immediately provide Beneficiary a
copy of the notice or documents referred to: (i) receipt of notice from any
Governmental Authority relating to all or any material part of the Trust Estate
if such notice relates to a default or act, omission or circumstance which would
result in a default after notice or passage of time or both; (ii) receipt of any
notice from any tenant leasing all or any material portion of the Trust Estate
or responsible for any material portion of the aggregate periodic rent collected
by Trustor under the Space Leases if such notice relates to a default or act,
omission or circumstance which would result in a default after notice or passage
of time or both under such Space Leases which would have a material adverse
affect on the Trustor's business, finances or operations; (iii) receipt of
notice from the holder of any Permitted Lien relating to a default or act,
omission or circumstance which would result in a default after notice or passage
of time or both under any Permitted Lien; (iv) the commencement of any
proceedings or the entry of any judgment, decree or order materially affecting
all or any portion of the Trust Estate or which involve the potential liability
of Trustor or its Affiliates in an amount in excess of $1,000,000 (other than
for personal injury actions and related property damage suits which have been
acknowledged by the insurer to be covered by such insurance); or (v)
commencement of any judicial or administrative proceedings or the entry of any
judgment, decree or order by or against or otherwise affecting Trustor or any
Affiliate of Trustor, a material portion of the Trust Estate, or a material
portion of the Personal Property, or any other action by any creditor or lessor
thereof as a result of any default under the terms of any lease.
5.10 Reconveyance. Upon written request of Beneficiary certifying the
payment in full of all of the Secured Obligations or Legal Defeasance or
Covenant Defeasance, and upon surrender of this Deed of Trust to Trustee for
cancellation and retention and upon payment of its fees, Trustee shall reconvey,
without warranty, the property then held hereunder.
37
The recitals in such reconveyance of any matters or facts shall be conclusive
proof of the truthfulness thereof. The grantee in such reconveyance may be
described as "the person or persons legally entitled thereto."
5.11 Attorneys' Fees. Without limiting any other provision contained
herein, Trustor agrees to pay all costs of Beneficiary or Trustee incurred in
connection with the enforcement of this Deed of Trust or the taking of this Deed
of Trust as security for the repayment of the Notes, including without
limitation all reasonable attorneys' fees whether or not suit is commenced, and
including, without limitation, fees incurred in connection with any probate,
appellate, bankruptcy, deficiency or any other litigation proceedings, all of
which sums shall be secured hereby.
5.12 Late Charges. By accepting payment of any sum secured hereby after
its due date, Beneficiary does not waive its right to collect any late charge
thereon or interest thereon at the interest rate on the Notes, if so provided,
not then paid or its right either to require prompt payment when due of all
other sums so secured or to declare default for failure to pay any amounts not
so paid.
5.13 Cost of Accounting. Trustor shall pay to Beneficiary, for and on
account of the preparation and rendition of any accounting, which Trustor may be
entitled to require under any law or statute now or hereafter providing
therefor, the reasonable costs thereof.
5.14 Right of Entry. Subject to compliance with applicable Gaming Laws,
Beneficiary may at any reasonable time or times upon prior written notice make
or cause to be made entry upon and inspections of the Trust Estate or any part
thereof in person or by agent.
5.15 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 acknowledgement hereof, and shall
execute, acknowledge and deliver such further instruments and do such further
acts as may be necessary or as may be reasonably requested by Trustee to carry
out more effectively the purposes of this Deed of Trust, to subject to the lien
and security interest hereby created any of Trustor's properties, rights or
interest covered or intended to be covered hereby, and to perfect and maintain
such lien and security interest.
5.16 Statute of Limitations. To the fullest extent allowed by the law,
the right to plead, use or assert any statute of limitations as a plea or
defense or bar of any kind, or for any purpose, to any debt, demand or
obligation secured or to be secured hereby, or to any complaint or other
pleading or proceeding filed, instituted or maintained for the purpose of
enforcing this Deed of Trust or any rights hereunder, is hereby waived by
Trustor.
5.17 Subrogation. Should the proceeds of the loan made by Beneficiary
to Trustor, repayment of which is hereby secured, or any part thereof, or any
amount paid out or advanced by Beneficiary, be used directly or indirectly to
pay off, discharge, or satisfy, in whole or in part, any prior or superior lien
or encumbrance upon the Trust Estate, or any part thereof, then, as additional
security hereunder, Trustee, on behalf of Beneficiary, shall be subrogated to
any and all rights, superior titles, liens, and equities owned or claimed by any
owner or holder of said outstanding liens, charges, and indebtedness, however
remote, regardless of whether said liens, charges, and indebtedness are acquired
by assignment or have been released of record by the holder thereof upon
payment.
5.18 Joint and Several Liability. All obligations of Trustor hereunder,
if more than one, are joint and several. Recourse for deficiency after sale
hereunder may be had against the property of Trustor, without, however, creating
a present or other lien or charge thereon.
38
5.19 Context. In this Deed of Trust, whenever the context so requires,
the neuter includes the masculine and feminine, and the singular including the
plural, and vice versa.
5.20 Time. Time is of the essence of each and every term, covenant and
condition hereof. Unless otherwise specified herein, any reference to "days" in
this Deed of Trust shall be deemed to mean "calendar days."
5.21 Interpretation. As used in this Deed of Trust unless the context
clearly requires otherwise: The terms "herein" or "hereunder" and similar terms
without reference to a particular section shall refer to the entire Deed of
Trust and not just to the section in which such terms appear; the term "lien"
shall also mean a security interest, and the term "security interest" shall also
mean a lien.
5.22 Effect of NRS ss. 107.030. To the extent not inconsistent
herewith, the provisions of NRS ss. 107.030 are included herein by reference.
5.23 Amendments. This Deed of Trust cannot be waived, changed,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of any waiver, change, discharge or
termination is sought and only as permitted by the provisions of the Indenture.
5.24 No Conflicts. In the event that any of the provisions contained
herein conflict with the Security Agreement, the provisions contained in the
Security Agreement shall prevail.
ARTICLE SIX
POWER OF ATTORNEY
6.1 Grant of Power. Trustor irrevocably appoints Beneficiary and any
successor thereto as its attorney-in-fact, with full power and authority,
including the power of substitution, exercisable only during the continuance of
an Event of Default to act for Trustor in its name, place and stead as
hereinafter provided:
6.2 Possession and Completion. To take possession of the Land and the
Riviera, remove all employees, contractors and agents of Trustor therefrom,
complete or attempt to complete any of the developments or improvements on the
Land described in the Offering Circular, and market, sell or lease the Land and
the Riviera.
6.3 Plans and Specifications. To make such additions, changes and
corrections in their current Plans and Specifications as may be necessary or
desirable, in Beneficiary's reasonable discretion, or as it deems proper to
complete the restoration or expansion of the Riviera.
6.4 Employment of Others. To employ such contractors, subcontractors,
suppliers, architects, inspectors, consultants, property managers and other
agents as Beneficiary, in its discretion, deems proper for the restoration or
expansion of the Riviera, for the protection or clearance of title to the Land
or Personal Property, or for the protection of Beneficiary's interests with
respect thereto.
6.5 Security Guards. To employ watchmen to protect the Land and the
Riviera from injury.
39
6.6 Compromise Claims. To pay, settle or compromise all bills and
claims then existing or thereafter arising against Trustor, which Beneficiary,
in its discretion, deems proper for the protection or clearance of title to the
Land or Personal Property, or for the protection of Beneficiary's interests with
respect thereto.
6.7 Legal Proceedings. To prosecute and defend all actions and
proceedings in connection with the Land or the Riviera.
6.8 Other Acts. To execute, acknowledge and deliver all other
instruments and documents in the name of Trustor that are necessary or
desirable, to exercise Trustor's rights under all contracts concerning the Land
or the Riviera, including, without limitation, under any Space Leases, and to do
all other acts with respect to the Land or the Riviera that Trustor might do on
its own behalf, as Beneficiary, in its reasonable discretion, deems proper.
40
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust, Assignment
of Rents, Leases, Fixture Filing and Security Agreement the day and year first
above written.
RIVIERA HOLDINGS CORPORATION
a Nevada corporation,
as Trustor
By:______________________________
Name:____________________________
Title:___________________________
S-1
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
This instrument was acknowledged before me on _____________________
by _____________________________ as _________________________________________ of
___________________________________.
__________________________________________
(Signature of notarial officer)
S-2
SCHEDULE A
(Real Property Description of the Land
A-1
TABLE OF CONTENTS
ARTICLE ONE: COVENANTS OF TRUSTOR............................................11
1.1 Performance of Loan Documents.........................................11
1.2 General Representations, Covenants and Warranties.....................11
1.3 Compliance with Legal Requirements....................................11
1.4 Taxes.................................................................12
1.5 Insurance.............................................................12
1.6 Condemnation..........................................................14
1.7 Care of Trust Estate..................................................14
1.8 Space Leases..........................................................15
1.9 Further Encumbrance...................................................15
1.10 Partial Releases of Trust Estate......................................16
1.11 Further Assurances....................................................18
1.12 Security Agreement and Financing Statements...........................19
1.13 Assignment of Rents...................................................21
1.14 Expenses..............................................................21
1.15 Beneficiary's Cure of Trustor's Default...............................22
1.16 Use of Trust Estate...................................................22
1.17 Compliance with Permitted Lien Agreements.............................22
1.18 Defense of Actions....................................................22
1.19 Affiliates............................................................22
1.20 Title Insurance.......................................................22
ARTICLE TWO: CORPORATE LOAN PROVISIONS.......................................23
2.1 Interaction with Indenture............................................23
2.2 Other Collateral......................................................23
ARTICLE THREE: DEFAULTS AND REMEDIES.........................................23
3.1 Event of Default......................................................23
3.2 Acceleration of Maturity..............................................24
3.3 Protective Advances...................................................24
3.4 Institution of Equity Proceedings.....................................24
3.5 Beneficiary's Power of Enforcement....................................24
3.6 Beneficiary's Right to Enter and Take Possession,
Operate and Apply Income..............................................25
3.7 Space Leases..........................................................26
3.8 Purchase by Beneficiary...............................................26
3.9 Waiver of Appraisement, Valuation, Stay, Extension
and Redemption Laws...................................................27
3.10 Receiver..............................................................27
3.11 Suits to Protect the Trust Estate.....................................27
3.12 Proofs of Claim.......................................................27
3.13 Trustor to Pay the Notes on Any Default in Payment;
Application of Monies by Beneficiary .................................28
3.14 Delay or Omission; No Waiver..........................................28
3.15 No Waiver of One Default to Affect Another............................28
3.16 Discontinuance of Proceedings; Position of Parties Restored...........29
3.17 Remedies Cumulative...................................................29
3.18 Interest After Event of Default.......................................30
3.19 Foreclosure; Expenses of Litigation...................................30
3.20 Deficiency Judgments..................................................30
3.21 Waiver of Jury Trial..................................................31
3.22 Exculpation of Beneficiary............................................31
i
ARTICLE FOUR: RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE...........................31
4.1 Exercise of Remedies by Trustee.......................................31
4.2 Rights and Privileges of Trustee......................................31
4.3 Resignation or Replacement of Trustee.................................32
4.4 Authority of Beneficiary..............................................32
4.5 Effect of Appointment of Successor Trustee............................32
4.6 Confirmation of Transfer and Succession...............................32
4.7 Ratification..........................................................32
4.8 Exculpation...........................................................32
4.9 Endorsement and Execution of Documents................................33
4.10 Multiple Trustees.....................................................33
4.11 Terms of Trustee's Acceptance.........................................33
ARTICLE FIVE: MISCELLANEOUS PROVISIONS.......................................33
5.1 Heirs, Successors and Assigns Included in Parties.....................33
5.2 Addresses for Notices, Etc............................................34
5.3 Change of Notice Address..............................................34
5.4 Headings..............................................................34
5.5 Invalid Provisions to Affect No Others................................34
5.6 Changes and Priority Over Intervening Liens...........................35
5.7 Estoppel Certificates.................................................35
5.8 Governing Law.........................................................35
5.9 Required Notices......................................................35
5.10 Reconveyance..........................................................35
5.11 Attorneys' Fees.......................................................36
5.12 Late Charges..........................................................36
5.13 Cost of Accounting....................................................36
5.14 Right of Entry........................................................36
5.15 Corrections...........................................................36
5.16 Statute of Limitations................................................36
5.17 Subrogation...........................................................36
5.18 Joint and Several Liability...........................................36
5.19 Context...............................................................36
5.20 Time..................................................................37
5.21 Interpretation........................................................37
5.22 Effect of NRS ss. 107.030.............................................37
ARTICLE SIX: POWER OF ATTORNEY...............................................37
6.1 Grant of Power........................................................37
6.2 Possession and Completion.............................................37
6.3 Plans and Specifications..............................................37
6.4 Employment of Others..................................................37
6.5 Security Guards.......................................................37
6.6 Compromise Claims.....................................................37
6.7 Legal Proceedings.....................................................37
6.8 Other Acts............................................................38
SCHEDULE A REAL ESTATE DESCRIPTION FOR THE LAND
ii
