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EXHIBIT 10.4
Prepared By and Upon
Recordation Return To:
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
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DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
FITZGERALDS RENO, INC.,
as Trustor
NEVADA TITLE COMPANY
as Trustee
THE BANK OF NEW YORK,
as Beneficiary
Dated as of December 30, 1997
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DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING WITH
ASSIGNMENT OF RENTS (this "Deed of Trust") is made as of the 30th day of
December, 1997 by Fitzgeralds Reno, Inc., a Nevada corporation ("Trustor"),
whose principal place of business is located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxx,
Xxxxxx 00000, in favor of Nevada Title Company ("Trustee"), for the benefit of
The Bank of New York, a New York banking corporation, as Collateral Agent
("Beneficiary"), whose principal place of business is located at 000 Xxxxxxx
Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as trustee under the
"Indenture" for the ratable benefit of the "Holders" (as each such term is
hereinafter defined).
THE MAXIMUM AMOUNT OF PRINCIPAL TO BE SECURED HEREBY IS $255,000,000 OF EACH OF
THE "SUBSIDIARY GUARANTEE OBLIGATIONS" (as hereinafter defined); PROVIDED THAT
IN NO EVENT SHALL THE AGGREGATE PRINCIPAL BALANCE SECURED HEREBY, EXCLUSIVE OF
INTEREST, FEES AND EXPENSES, FOR THE BENEFIT OF THE HOLDERS EXCEED
$255,000,000.
R E C I T A L S
A. Pursuant to that certain Indenture dated as of December 30,
1997 (as supplemented and otherwise amended from time to time, the "Indenture"),
by and among Fitzgeralds Gaming Corporation ("Fitzgeralds"), the Guarantors
(defined therein), and Beneficiary, as Trustee thereunder (in such capacity, the
"Indenture Trustee"), Fitzgeralds will issue 12 1/4 % Senior Secured Notes due
on or before 2004 in an aggregate principal amount of up to the maximum amount
of $255,000,000 (collectively, the "Notes"). Unless the context other requires,
all capitalized terms used and not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture. Attached hereto as Schedule 1.1 is a
list of certain definitions for which reference should be made to the Indenture.
B. Pursuant to a guarantee included in the Indenture (as amended
from time to time, the "Subsidiary Guarantee"), the Guarantors (including
Trustor) have Guaranteed the obligations of Fitzgeralds under the Notes, the
Indenture and the other Security Documents to which Fitzgeralds is a party.
C. Pursuant to the Indenture, the Subsidiary Guarantee of Trustor
is required to be secured by, among other things, this Deed of Trust.
D. The parties acknowledge that certain provisions of this Deed
of Trust may be subject to the laws, rules and regulations of the Gaming
Authority of the State of Nevada ("Applicable Gaming Laws").
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W I T N E S S E T H:
IN CONSIDERATION OF THE FOREGOING PREMISES AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, TRUSTOR DOES HEREBY IRREVOCABLY GRANT, BARGAIN, SELL, TRANSFER,
CONVEY AND ASSIGN to Trustee, its successors and assigns, IN TRUST, WITH POWER
OF SALE, for the benefit and security of Beneficiary, as agent and
representative for the equal and ratable benefit of the Holders, the following
(but excluding in each and every case all Excluded Assets as defined below),
whether now owned or hereafter acquired:
GRANTING CLAUSE ONE
[LAND]
All of Trustor's right, title and interest in the real property,
located in the County of Xxxxx, State of Nevada, described in Exhibit A attached
hereto and by this reference incorporated herein (the "Land"), together with all
and singular the tenements, hereditament, rights, reversions, remainders,
development rights, privileges, benefits, easements (in gross or appurtenant),
rights-of-way, gores or strips of land, streets, ways, alleys, passages, sewer
rights, water courses, water rights and powers, and all appurtenances whatsoever
and claims or demands of Trustor at law or in equity, in any way belonging,
benefitting, relating or appertaining to the Land, the airspace over the Land,
the "Improvements" (as hereinafter defined), or both, or which hereinafter shall
in any way belong, relate or be appurtenant thereto.
GRANTING CLAUSE TWO
[IMPROVEMENTS]
TOGETHER WITH, any and all structures, buildings, facilities and
improvements of every nature whatsoever now or hereafter erected on the Land,
including, but not limited to, the "Fixtures" (as hereinafter defined)
(collectively, the "Improvements") (the Land and Improvements are referred to
collectively as the "Property").
For purposes of this Deed of Trust, Fixtures shall be deemed to
include, to the full extent allowed by law, fixtures and all other equipment and
machinery now or at any time hereafter owned by Trustor and located or included
in or on or appurtenant to the Property and used in connection therewith and
which are or become so related to the real property encumbered hereby that an
interest arises in them under real estate law which may include, but is not
limited to: all docks, piers,
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barges, vessels, machinery, equipment (including, without limitation, pipes,
furnaces, conveyors, drums, fire sprinklers and alarm systems, and air
conditioning, heating, refrigerating, electronic monitoring, stoves, ovens,
ranges, dishwashers, disposals, food storage, food processing (including
restaurant fixtures), trash and garbage removal and maintenance equipment),
office equipment, all built-in tables, chairs, mantels, screens, plumbing,
bathtubs, sinks, basins, faucets, laundry equipment, planters, desks, sofas,
shelves, lockers and cabinets, laundry equipment, all safes, furnishings,
appliances (including, without limitation, food warming and holding equipment,
iceboxes, refrigerators, fans, heaters, water heaters and incinerators), rugs,
carpets and other floor coverings, draperies and drapery rods and brackets,
awnings, window shades, venetian blinds, curtains, lamps, chandeliers and other
lighting fixtures.
GRANTING CLAUSE THREE
[RENTS, ETC.]
TOGETHER WITH, all rents, income, security or similar deposits,
including without limitation, receipts, issues, royalties, earnings, products or
proceeds, profits, maintenance, license and concession fees and other revenues
to which Trustor may now or hereafter be entitled, including, without
limitation, all rights to payment for hotel room occupancy by hotel guests,
which includes any payment or monies received or to be received in whole or in
part, whether actual or deemed to be, for the sale of services or products in
connection therewith and/or in connection with such occupancy, advance
registration fees by hotel guests, tour or junket proceeds and deposits for
conventions and/or party reservations (collectively the "Rents"), subject to the
revocable license hereinafter given to Trustor to collect and apply such Rents.
GRANTING CLAUSE FOUR
[LEASES, INCLUDING DEPOSITS AND ADVANCE RENTALS]
TOGETHER WITH, (a) all estate, right, title and interest of
Trustor in, to and under any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreement, franchise agreements
and all other agreements affecting or covering the Property or any portion
thereof now or hereafter existing or entered into, together with all amendments,
extensions and renewals of any of the foregoing, (b) all right, title, claim,
estate and interest of Trustor thereunder, including, without limitation, all
claims of the lessor thereunder, letters of credit, guarantees or security
deposits, advance rentals, and any and all deposits or payments of similar
nature and (c) the right to enforce against any tenants thereunder and otherwise
any and all remedies under any of the foregoing, including Trustor's right to
evict from possession any tenant thereunder or to retain, apply, use, draw upon,
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pursue, enforce or realize upon any guaranty thereof; to terminate, modify, or
amend any such agreement; to obtain possession of, use, or occupy, any of the
real or personal property subject to any such agreement; and to enforce or
exercise, whether at law or in equity or by any other means, all provisions of
any such agreement and all obligations of the tenants thereunder based upon (i)
any breach by such tenant thereunder (including any claim that Trustor may have
by reason of a termination, rejection, or disaffirmance of such agreement
pursuant to any Bankruptcy Law), and (ii) the use and occupancy of the premises
demised, whether or not pursuant to the applicable agreement (including any
claim for use and occupancy arising under landlord-tenant law of the State of
Nevada or any Bankruptcy Law).
GRANTING CLAUSE FIVE
[OPTIONS TO PURCHASE, ETC.]
TOGETHER WITH, all right, title and interest of Trustor in and to
all options and other rights to purchase or lease the Property or any portion
thereof or interest therein, if any, and any greater estate in the Property
owned or hereafter acquired by Trustor.
GRANTING CLAUSE SIX
[PERSONALTY]
TOGETHER WITH, all right, title and interest of Trustor in and to
all Tangible Property and Intangible Property (except, with respect to Gaming
Licenses, as prohibited by Applicable Gaming Laws) now or at any time hereafter
located on or appurtenant to the Property and used or useful in connection with
the ownership, management or operation of the Property, including, without
limitation, the Personalty.
GRANTING CLAUSE SEVEN
[CONDEMNATION AWARDS, ETC.)
TOGETHER WITH, all the estate, interest, right, title, other
claim or demand, which Trustor now has or may hereafter acquire in any and all
awards, payments or other consideration made for the taking by eminent domain,
or by any proceeding or purchase in lieu thereof, of the whole or any part of
the Property, including, without limitation, any awards, payments or other
consideration resulting from a change of grade of streets and for severance
damages.
GRANTING CLAUSE EIGHT
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[INSURANCE PROCEEDS]
TOGETHER WITH, all the estate, interest, right, title and other
claim or demand which Trustor now has or may hereafter acquire with respect to
the proceeds of insurance in effect with respect to all or any part of the
Property, together with all interest thereon and the right to collect and
receive the same.
GRANTING CLAUSE NINE
[CLAIMS FOR DAMAGES, ETC.]
TOGETHER WITH, all the estate, interest, right, title and other
claim or demand which Trustor now has or may hereafter acquire against anyone
with respect to any damage to all or any part of the Property, including,
without limitation, damage arising from any defect in or with respect to the
design or construction of all or any part of the Improvements and damage
resulting therefrom.
GRANTING CLAUSE TEN
[DEPOSITS, ADVANCE PAYMENTS AND REFUNDS OF INSURANCE, UTILITIES, ETC.]
TOGETHER WITH, all deposits or other security or advance payments
including rental payments made by or on behalf of Trustor to others, and all
refunds made by others to Trustor, with respect to (i) insurance policies
relating to all or any part of the Property, (ii) utility service for all or any
part of the Property, (iii) cleaning, maintenance, repair, or similar services
for all or any part of the Property, (iv) refuse removal or sewer service for
all or any part of the Property, (v) rental of equipment, if any, used in the
operation, maintenance or repair by or on behalf of Trustor of all or any part
of the Property and (vi) parking or similar services or rights afforded to all
or any part of the Property.
GRANTING CLAUSE ELEVEN
[WATER RIGHTS, ETC.]
TOGETHER WITH, all water rights, water stock, water permits and
other rights to the use of water that are now or that may be hereinafter used in
connection with the said Property, or any part thereof, or any improvements or
appurtenances thereto.
GRANTING CLAUSE TWELVE
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[MINERALS, ETC.]
TOGETHER WITH, all oil and gas and other mineral rights, if any,
in or pertaining to the Land and all royalty, leasehold and other rights of
Trustor pertaining thereto.
GRANTING CLAUSE THIRTEEN
[ACCESSIONS, ETC.]
TOGETHER WITH, all extensions, improvements, betterments,
renewals, substitutes for and replacements of, and all additions, accessions,
and appurtenances to, any of the foregoing that Trustor may subsequently
acquire, and all conversions of any of the foregoing; Trustor agrees that all
property hereafter acquired by Trustor and required by the Indenture, this Deed
of Trust or any other Security Document to be subject to the Lien and/or
security interests created by this Deed of Trust shall forthwith upon the
acquisition thereof by Trustor be subject to the Lien and security interests of
this Deed of Trust as if such property were now owned by Trustor and were
specifically described in this Deed of Trust and granted hereby or pursuant
hereto, and the Beneficiary is hereby authorized to receive any and all such
property as and for additional security for the Subsidiary Guarantee
Obligations.
The entire estate, property and interest hereby conveyed to
Trustee (other than Excluded Assets) may hereafter be referred to as the "Trust
Estate."
FOR THE PURPOSE OF SECURING:
A. the due and punctual payment and performance of any and all
present and future obligations and liabilities of Trustor of every type or
description to Beneficiary, arising under or in connection with the Subsidiary
Guarantee, whether for principal of, or premium, if any, or interest on the
Notes, expenses, indemnities or other amounts (including attorneys' fees and
expenses) (collectively, the "Subsidiary Guarantee Obligations"); and
B. the due and punctual payment and performance of any and all
present and future obligations and liabilities of Trustor of every type or
description to Beneficiary, arising under or in connection with this Deed of
Trust or any other Security Document, including for reimbursement of amounts
permitted to be advanced or expended by Beneficiary (i) to satisfy amounts
required to be paid by Trustor under this Deed of Trust or any other Security
Document, together with interest thereon to the extent provided, or (ii) to
protect the Trust Estate, together with interest thereon to the extent provided;
and
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C. all future advances pursuant to the Indenture or any other of
the Security Documents, as future advances is defined by Nevada Revised Statutes
("NRS") 106.320. This Deed of Trust is intended to secure future advances. The
maximum amount f principal to be secured is $255,000,000. This instrument is to
begoverned by the provisions of NRS 106.300 et.seq.
in each case whether due or not due, direct or indirect, joint and/or several,
absolute or contingent, voluntary or involuntary, liquidated or un1iquidated,
determined or undetermined, now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished and later increased,
created or incurred, whether or not arising after the commencement of a
proceeding under the Bankruptcy Code (including post-petition interest) and
whether or not allowed or allowable as a claim in any such proceeding (all
obligations and liabilities described herein, including, without limitation, the
Subsidiary Guarantee Obligations, are collectively referred to herein as the
"Secured Obligations").
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY COVENANTS
AND AGREES AS FOLLOWS:
ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
SECTION 1.1. Certain Defined Terms. As used herein, the following
terms shall have the following meanings:
"ACCOUNTS" has the meaning set forth in Section 9.1.2.
"APPLICABLE UCC" means the Uniform Commercial Code (as amended
from time to time) of the State of Nevada.
"BENEFICIARY" has the meaning set forth in the Preamble.
"CHATTEL PAPER" has the meaning set forth in Section 9.1.1.
"DOCUMENTS" has the meaning set forth in Section 9.1.9.
"ENVIRONMENTAL DAMAGES" means all claims, judgments, damages,
losses, penalties, fines, liabilities (including strict liability),
encumbrances, liens, costs and expenses of investigation and defense of any
claim, whether or not such is ultimately defeated, and of any settlement or
judgment, of whatever kind or nature, contingent or otherwise, matured or
unmatured, foreseeable or unforeseeable, including, without limitation,
reasonable attorneys' fees, charges and disbursements
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(including, without limitation, costs of appeal), and consultants' fees, any of
which are actually incurred at any time as a result of the existence or alleged
existence of Hazardous Materials upon, about or beneath the Property or
migrating or threatening to migrate to or from the Property, or the existence or
alleged existence of a violation of Environmental Requirements pertaining to the
Property regardless of whether the existence of such Hazardous Materials or the
violation of Environmental Requirements arose prior to the present ownership or
operation of the Property, and including, without limitation:
(i) damages for personal injury, or injury to property or
natural resources occurring upon or off of the Property, foreseeable or
unforeseeable, including, without limitation, lost profits, consequential
damages, the cost of demolition and rebuilding of any improvements on real
property, interest and penalties including, but not limited to, claims brought
by or on behalf of employees of Trustor, with respect to which Trustor waives,
for the benefit of Beneficiary only, any immunity to which it may be entitled
under any industrial or workers' compensation laws;
(ii) reasonable fees actually incurred for the services of
attorneys, consultants, contractors, experts, laboratories and all other costs
incurred in connection with the investigation or remediation of such Hazardous
Materials or violation of Environmental Requirements including, but not limited
to, the preparation of any feasibility studies or reports or the performance of
any cleanup, remedial, removal, abatement, containment, closure, restoration or
monitoring work required by any federal, state or local governmental agency or
political subdivision, or reasonably necessary to make full economic use of the
Property or any other property or otherwise expended in connection with such
conditions, and including, without limitation, any reasonable attorneys' fees,
charges and disbursements (including, without limitation, costs of appeal)
actually incurred in enforcing this Deed of Trust or collecting any sums due
hereunder; and
(iii) liability to any Person to indemnify such Person for
actual costs incurred in good faith in connection with the items referenced in
subparagraphs (i) and (ii) hereof.
"ENVIRONMENTAL REQUIREMENTS" means the common law and all
applicable present and future statutes, regulations, rules, ordinances, codes,
licenses, permits, orders, approvals, plans, authorizations, concessions,
franchises and similar items, of all a governmental agencies, departments,
commissions, boards, bureaus or instrumentalities of the United States, states
and political subdivisions thereof and all applicable judicial and
administrative and regulatory decrees, injunctions, judgments and orders
relating to the environment, including, without limitation:
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(i) all requirements, including, but not limited to, those
relating or pertaining to (A) reporting, licensing, permitting, investigation
and remediation of emissions, discharges, releases or threatened releases of
Hazardous Materials or other chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the environment (including, without limitation, ambient
air, surface water, groundwater or land surface or subsurface strata), (B) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of chemical substances, materials or wastes,
whether solid, liquid or gaseous in nature, including without limitation,
Hazardous Materials or (C) underground storage tanks and related piping, and
emissions, discharges, releases or threatened releases of Hazardous Materials or
other chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes whether solid, liquid or gaseous in nature
therefrom; and
(ii) all other requirements pertaining to the protection
of the health and safety of employees or the public with respect to Hazardous
Materials.
"EQUIPMENT" has the meaning set forth in Section 9.1.7.
"EXCLUDED ASSETS" means (i) cash, deposit accounts and other cash
equivalents; (ii) furniture, fixtures and equipment securing Non-Recourse
Indebtedness permitted to be incurred under the Indenture; (iii) assets
securing Purchase Money Obligations or Capital Lease Obligations permitted to be
incurred under the Indenture; and (iv) any Contracts, permits, licenses or the
like that cannot be subjected to a Lien without the consent of third parties,
which consent is not obtainable by Trustor (including all Gaming Licenses of
Trustor); provided, that Excluded Assets does not include the proceeds of the
assets under clauses (ii), (iii) or (iv) or of any other Collateral to the
extent such proceeds do not constitute Excluded Assets under clause (i) above.
"FIXTURES" has the meaning set forth in Section 9.1.7.
"GENERAL INTANGIBLES" has the meaning set forth in Section
9.1.10.
"HAZARDOUS MATERIALS" Any chemical, material or substance:
(i) the presence of which requires investigation or
remediation under any federal, state or local law, statute, code, regulation,
ordinance, order, action or policy; or
(ii) which is or becomes defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
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"extremely hazardous waste," "restricted hazardous waste" or "toxic substances"
or words of similar import under any applicable local, state or federal law or
under regulations adopted or publications promulgated pursuant thereto,
including, but not limited to, any such laws or regulations promulgated by
Governmental Authorities of the State of Nevada; the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C.
Section 1801, et seq.; the Resource Conservation and Recovery Act, as amended,
42 U.S.C. Section 6901, et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251, et seq.; or
(iii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is
or a becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, any state of
the United States, or any political subdivision thereof ("Governmental
Authority"); or
(iv) the presence of which on the Property causes or
threatens to pose a hazard to the Property or to the health or safety of Persons
on or about the Property; or
(v) without limitation, which contains gasoline, crude
oil, diesel fuel or other petroleum hydrocarbons in violation of applicable
Environmental Requirements; or
(vi) without limitation, which contains "PCBs" (as
herein after defined) or asbestos or urea formaldehyde foam insulation or radon
gas.
"IMPOSITIONS" Any and all (i) real estate and personal property
taxes and other taxes and assessments, water and sewer rates and charges levied
or assessed upon or with respect to the Property, and any and all other
governmental charges (including any penalties and other charges imposed by any
Gaming Authority) and any interest or costs or penalties with respect thereto,
in each case whether general, special, ordinary or extraordinary, foreseen or
unforeseen, of any kind and nature whatsoever that at any time prior to or after
the execution hereof may be assessed, levied, imposed, or become a lien upon the
Property or the Rents, but excluding taxes on Trustor's income or operating
revenues; (ii) charges for any easement or agreement maintained for the benefit
of the Property and (iii) other charges, expenses, payments or assessments of
any nature, if any, which are or may be assessed, levied, imposed or become a
lien upon the Property or the Rents, including mechanics and other Liens
permitted by Section 4.12 of the Indenture.
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"IMPOUND ACCOUNT" The account that Trustor may be required to
maintain pursuant to Section 4.6.2. of this Deed of Trust for the deposit of
amounts required to pay Impositions and insurance premiums.
"IMPROVEMENTS" has the meaning set forth in Granting Clause Two.
"INDEMNITEES" has the meaning set forth in Section 11.2.7.
"INTANGIBLE PROPERTY" Any and all intangible personal property,
including, without limitation, (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the
Land, or the Improvements, including, without limitation, the name "Fitzgeralds
Reno" and any variations thereof, together with the goodwill associated
therewith, and all names, logos, and designs used by Trustor, or in connection
with the Land or the Improvements or in which Trustor has rights, with the
exclusive right to use such names, logos and designs wherever they are now or
hereafter used in connection with the Land or the Improvements, and any and all
other trade names, trademarks or service marks, whether or not registered, now
or hereafter used in the operation of the Land or the Improvements, including,
without limitation, any interest as a licensee or franchisee, and, in each case,
together with the goodwill associated therewith; (b) maps, plans,
specifications, surveys, studies, tests, reports, data and drawings relating to
the development of the Land or the Improvements and the construction of the
Improvements, including, without limitation, all marketing plans, feasibility
studies, soils tests, design contracts and all contracts and agreements of
Trustor relating thereto and all architectural, structural, mechanical and
engineering plans and specifications, studies, data and drawings prepared for or
relating to the development of the Land or the Property or the construction,
renovation or restoration of any of the Improvements or the extraction of
minerals, sand, gravel or other valuable substances from the Land; (c) any and
all books, records, customer lists (including lists or information derived from
or related to the Player Tracking System described within the definition of
"Tangible Property"), concession agreements, supply or service contracts,
licenses, permits, governmental approvals (to the extent such licenses, permits
and approvals may be pledged under applicable law), signs, goodwill, casino and
hotel credit and charge records, supplier lists, checking accounts, safe
deposit boxes (excluding the contents of such deposit boxes owned by Persons
other than Trustor and its Subsidiaries), cash, instruments, Chattel Papers,
documents, unearned premiums, deposits, refunds, including but not limited to
income tax refunds, prepaid expenses, rebates, tax and insurance escrow and
impound accounts, if any, actions and rights in action, and all other claims,
and all other contract rights and general intangibles resulting from or used in
connection with the operation of the Trust Estate and in which Trustor now or
hereafter has rights; (d) all of Trustor's documents, instruments, contract
rights, and general intangibles including, without limitation, all insurance
policies, permits, licenses, franchises and
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agreements required for the use, occupancy or operation of the Land, or any of
the Improvements (to the extent such licenses, permits and approvals are not
prohibited from being pledged under applicable law); (e) general intangibles,
vacation license resort agreements or other time share license or right to use
agreements with respect to the Land, the Improvements and/or the business being
conducted thereon, including, without limitation, all rents, issues, profits,
income and maintenance fees resulting therefrom; whether any of the foregoing is
now owned or hereafter acquired and (f) any and all licenses, permits,
variances, special permits, franchises, certificates, rulings, certifications,
validations, exemptions, filings, registrations, authorizations, consents,
approvals, waivers, orders, rights and agreements (including options, option
rights and contract rights) now or hereafter obtained by Trustor from any
Governmental Authority having or claiming jurisdiction over the Land, the
Tangible Property, the Property or any other element of the Trust Estate or
providing access thereto, or the operation of any business on, at, or from the
Land, including, without limitation, any Gaming Licenses.
"INVENTORY" has the meaning set forth in Section 9.1.6.
"LAND" has the meaning set forth in Granting Clause One.
"LEASES" Any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreements and all other
agreements affecting or covering the Property or any portion thereof now or
hereafter existing or entered into, together with all amendments, extensions and
renewals of any of the foregoing.
"PCBS" means polychlorinated biphenyls.
"PERSONALTY" The Intangible Property and the Tangible Property.
"PROCEEDS" has the meaning set forth in Section 9.1.22.
"PROPERTY" has the meaning set forth in Granting Clause Two.
"PUBLIC WATERS" means any river, lake, stream, sea, ocean, gulf,
bay or other public body of water.
"RECEIVER" means any trustee, receiver, custodian, fiscal agent,
liquidator or similar officer.
"RENTS" has the meaning set forth in Granting Clause Three.
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"SUBSIDIARY GUARANTEE OBLIGATIONS" has the meaning set forth
hereinabove.
"TANGIBLE PROPERTY" Any and all tangible personal property,
including, without limitation, all goods, equipment, supplies, building and
other materials of every nature whatsoever and all other tangible personal
property constituting a part or portion of the Property and/or used in the
operation of any hotel, casino, restaurant, store, parking facility, special
events arena, theme park, and any other commercial operations on the Property,
including but not limited to Inventory, communication systems, visual and
electronic surveillance systems and transportation systems and not constituting
a part of the real property subject to the real property lien of this Deed of
Trust and including all property and materials stored on all or any portion of
the Property in which Trustor has an interest and all tools, utensils, food and
beverage, liquor, uniforms, linens, housekeeping and maintenance supplies,
vehicles, fuel, advertising and promotional material, blueprints, surveys,
plans and other documents relating to the Land or the Improvements, and all
construction materials and all Fixtures, including, but not limited to, all
gaming equipment and devices which are used in connection with the operation of
the Property and those items of Fixtures which are purchased or leased by
Trustor, machinery and any other item of personal property in which Trustor now
or hereafter owns or acquires an interest or right, and which are used or useful
in the construction, operation, use and occupancy of the Property; to the
extent permitted by the applicable contract or applicable law, all financial
equipment, computer equipment, Player Tracking Systems (including all computer
hardware, operating software programs and all right, title and interest in and
to any applicable license therefore), calculators, adding machines, video game
and slot machines, and any other electronic equipment of every nature used or
located on any part of the Property, and all present and future right, title and
interest of Trustor in and to any casino operator's agreement, license agreement
or sublease agreement used in connection with the Property.
"TITLE POLICY" means the title insurance policy or policies in
favor of Beneficiary insuring the Lien of this Deed of Trust.
"TRADEMARKS" means trademarks, servicemarks and trade names
(including without limitation, the trademarks listed on Schedule VI to the
Security and Pledge Agreement), all registrations and applications to register
such trademarks, servicemarks and trade names and all renewals thereof, and the
goodwill of the business associated with or relating to such trademarks,
servicemarks and trade names, including without limitation any and all licenses
and rights granted to use any trademark, servicemark or trade name owned by any
other Person.
"TRUST ESTATE" has the meaning set forth hereinabove.
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"UCC" means the Uniform Commercial Code (as amended from time to
time) of the State of New York.
SECTION 1.2. RELATED MATTERS.
1.2.1. TERMS USED IN THE UCC. Unless the context clearly
otherwise requires, all lower-case terms used in Section 9 of this Deed of Trust
and not otherwise defined herein that are used or defined in Article 9 (or any
equivalent subpart) of the UCC have the same meanings herein.
1.2.2. CONSTRUCTION. Unless the context of this Deed of Trust
clearly requires otherwise, references to the plural include the singular, the
singular includes the plural, the part includes the whole, and "including" is
not limiting. The words "hereof," "herein," "hereby," "hereunder" and similar
terms in this Deed of Trust refer to this Deed of Trust as a whole (including
the Preamble, the Recitals and all Schedules and Exhibits, but subject to
Section 1.2.5.) and not to any particular provision of this Deed of Trust.
Article, section, subsection, exhibit, recital, preamble and schedule
references in this Deed of Trust are to this Deed of Trust unless otherwise
specified. References in this Deed of Trust to any agreement, other document or
law "as amended" or "as may be amended from time to time," or to amendments of
any document or law, shall include any amendments, supplements, replacements,
renewals or other modifications.
1.2.3. DETERMINATIONS. Any determination or calculation
contemplated by this Deed of Trust that is made by Beneficiary shall be final
and conclusive and binding upon the Trustor and Fitzgeralds, in the absence of
manifest error. References in this Deed of Trust to "determination" by
Beneficiary include good faith estimates (in the case of quantitative
determinations) and good faith beliefs (in the case of qualitative
determinations). All references herein to "discretion" of Beneficiary (or terms
of similar import) shall mean "absolute and sole discretion." All consents and
other actions of Beneficiary contemplated by this Deed of Trust may be given,
taken, withheld or not taken in Beneficiary's discretion (whether or not so
expressed), except as otherwise expressly provided herein. No approval or
consent of Beneficiary shall be effective unless the express written approval or
consent of Beneficiary is received by Trustor.
1.2.4. GOVERNING LAW. This Deed of Trust shall be governed by,
and construed in accordance with, the laws (other than the rules regarding
conflicts of laws) of the State of Nevada, provided that, with respect to any
portion of the Trust Estate (other than Personalty) that is located outside the
State of Nevada, the law of the state in which such property is located shall
govern to the extent, and only to the extent, necessary to permit the
Beneficiary to enforce its rights, powers and remedies hereunder.
Notwithstanding the foregoing, the governing law provisions of
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the Security and Pledge Agreement, which provide, among other things, that the
perfection of security interests granted hereby in goods, documents and
instruments located in the State of Nevada shall be governed by the laws of the
State of Nevada, shall control with respect to the Collateral listed in Article
9 hereto, other than Fixtures.
1.2.5. HEADINGS. The Article and Section headings used in this
Deed of Trust are for convenience of reference only and shall not affect the
construction hereof.
1.2.6. SEVERABILITY. If any provision of this Deed of Trust or
any Lien or other right hereunder shall be held to be invalid, illegal or
unenforceable under Applicable Law in any jurisdiction, such provision, Lien or
other right shall be ineffective only to the extent of such invalidity,
illegality or unenforceability, which shall not affect any other provisions
herein or any other Lien or right granted hereby or the validity, legality or
enforceability of such provision, Lien or right in any other jurisdiction.
1.2.7. EXHIBITS AND SCHEDULES. All of the appendices, exhibits
and schedules attached to this Deed of Trust shall be deemed incorporated herein
by reference.
ARTICLE 2.
[RESERVED]
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor hereby represents and warrants to Beneficiary and Trustee that:
SECTION 3.1. CORPORATE EXISTENCE. Trustor (a) is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, and (b) has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged or presently proposes to engage, and (c) is duly qualified and is
authorized to do business and is in good standing as a foreign corporation in
every jurisdiction in which it owns or leases real property or in which the
nature of its business requires it to be so qualified.
SECTION 3.2. AUTHORIZATION; APPROVALS. The execution, delivery
and performance by Trustor of this Deed of Trust are within Trustor's corporate
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powers and authority, have been duly authorized by all necessary corporate
action, and do not contravene (a) Trustor's charter or by-laws or (b) any law or
any contractual restriction binding on or affecting Trustor or the Property.
All authorizations or approvals or other actions by, or notice to or filing
with, any Governmental Authority required for the due execution, delivery and
performance by Trustor of this Deed of Trust have been duly obtained and are in
full force and effect.
SECTION 3.3. ENFORCEABILITY. This Deed of Trust has been duly
executed and delivered by Trustor and is the legal, valid and binding obligation
of Trustor, enforceable against Trustor in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally and general principles of equity.
SECTION 3.4. VALIDITY AND PERFECTION OF SECURITY INTERESTS. The
liens and security interests in the Trust Estate created in accordance with the
terms hereof constitute valid security interests, and, (a) upon recordation of
this Deed of Trust in the appropriate office in Xxxxx County, Nevada, (b) upon
the filing of financing statements naming Trustor as "Debtor" and Beneficiary as
"Secured Party" and describing the Trust Estate in the filing offices of the
Secretaries of State of Nevada and in the real estate records of Xxxxx County,
Nevada, (c) upon the delivery of any instruments and Chattel Paper which are
included in the Trust Estate to Beneficiary, (d) to the extent subject to U.S.
federal law and not Article 9 of the Applicable UCC, upon recordation of the
security interests granted in Patents, Trademarks and Copyrights in the U.S.
Patent and Trademark Office and the U.S. Copyright Office, along with the
registration of all U.S. Copyrights in the U.S. Copyright Office and, to the
extent governed by foreign law, the taking of all steps necessary under
applicable foreign law to perfect or record the security interest in all foreign
Intellectual Property Collateral applications and registrations and (e) to the
extent ownership of Collateral is represented by a certificate, a notation on
the certificate of the Lien granted hereby, the security interests granted to
Beneficiary hereunder will constitute perfected security interests therein
superior and prior to all Liens, rights or claims of all other Persons other
than Permitted Liens.
SECTION 3.5. TITLE TO AND RIGHT TO USE ASSETS. Trustor has good
and marketable fee simple title in the Land and is the legal and beneficial
owner of the remainder of the Trust Estate (and as to the Trust Estate whether
now existing or hereafter acquired, Trustor will continue to own each item
thereof), free and clear of all Liens except Permitted Liens. Trustor has the
right to hold, occupy and enjoy its interest in the Trust Estate subject to the
terms of the Gaming Licenses and subject to the Permitted Liens, and has valid
right, full power and legal authority, subject to Applicable Gaming Laws, to
mortgage and pledge the same as provided herein, and Trustor shall defend the
Trust Estate against all claims and demands of all Persons at any time claiming
the same or any interest therein adverse to Beneficiary (except for
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Permitted Liens) and Beneficiary may, subject to Applicable Gaming Laws, at all
times peaceably and quietly enter upon, hold, occupy and enjoy the entire Trust
Estate in accordance with the terms hereof.
SECTION 3.6. NON-CONTRAVENTION. Neither the execution, delivery
or performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any government, regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trustor or the Trust Estate, or (iii) result in or require the creation
or imposition of (or the obligation to create or impose) any Lien (other than
the Lien contemplated hereby or by any other Security Document), upon or with
respect to any of the property or assets now owned or hereafter acquired by
Trustor.
SECTION 3.7. CONTRACTS. Each material contract which is part of
the Trust Estate (each, a "Contract"), (i) is the genuine, legal, valid, and
binding obligation of Trustor, (ii) is enforceable against Trustor in
accordance with its terms, (iii) is in full force and effect and is, to
Trustor's knowledge, not subject to any setoffs, defenses, overdue taxes,
counterclaims or other claims, nor have any of the foregoing been asserted or
alleged as to any Contract, and (iv) is, in all material respects, in compliance
with all applicable laws, whether federal, state, local or foreign ("Applicable
Laws"). Neither Trustor nor, to the best knowledge of Trustor, any other party
to any Contract is in default in the performance or observance of any of the
terms thereof. No party to any Contract is the United States government or an
instrumentality thereof.
SECTION 3.8. LEASES. Trustor has delivered to Beneficiary true,
correct and complete copies of all Leases, including all amendments thereof and
modifications thereto. Each Lease (i) is the genuine, legal, valid and binding
obligation of Trustor, (ii) is enforceable against Trustor and, to the best of
Trustor's knowledge, the other party thereto, in accordance with its terms,
(iii) is in full force and effect and is not subject to any setoffs, defenses,
taxes, counterclaims or other claims, nor have any of the foregoing been
asserted or alleged as to any Lease, and (iv) is in compliance with all
applicable laws, whether federal, state, local or foreign.
SECTION 3.9. NO OTHER PROPERTY, The Trust Estate constitutes all
of the property (whether owned, leased or otherwise) currently used by Trustor
in connection with the operation of the Fitzgeralds Reno Casino, other than
Excluded Assets.
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SECTION 3.10. COMPLIANCE WITH LAWS. To the best knowledge of
Trustor, except as otherwise disclosed in writing to Beneficiary, the Trust
Estate and the proposed and actual use thereof comply in all material respects
with all Applicable Laws, and there is no proceeding pending or, to the best
knowledge of Trustor, threatened before any court, quasi-judicial body,
Governmental Authority or administrative agency relating to the validity of the
Security Documents or the proposed or actual use of the Trust Estate.
SECTION 3.11. PROPERTY USE; MECHANICS' LIENS.
The Property is not used principally or primarily for agricultural or grazing
purposes. All costs for labor and material for the removal, construction and
renovation of the Improvements (including, without limitation, any additions and
alterations thereto) have been paid in full or will be paid in accordance with
Section 4.15.
SECTION 3.12. CONDEMNATION. There are no pending or, to the best
knowledge of Trustor, threatened condemnation or eminent domain proceedings
against the Trust Estate or any part thereof.
SECTION 3.13. LITIGATION. Except as disclosed in writing to
Beneficiary on the date hereof, there are no pending or, to the best knowledge
of Trustor, threatened, actions, claims, proceedings, investigations, suits or
proceedings before any court, governmental agency or arbitrator.
SECTION 3.14. CONSTRUCTION OF IMPROVEMENTS. All Improvements have
been and will be constructed in all material respects in accordance with
Applicable Laws and all requirements of Governmental Authorities and
governmental approvals. To the best knowledge of Trustor, the Improvements are
free from latent and patent defects, and do not require any material repairs,
reconstruction or replacement on the date hereof (except for any material
repairs, reconstruction or replacement that do not have a material adverse
effect on the value of the Improvements and do not materially and adversely
affect Trustor's use and operation of the Improvements).
ARTICLE 4.
AFFIRMATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
SECTION 4.1. SECURED OBLIGATIONS OF TRUSTOR. Trustor will
perform, observe and comply with its Secured Obligations arising under this Deed
of Trust and shall continue to be liable for the performance of its Secured
Obligations arising
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under this Deed of Trust until discharged in full, notwithstanding any actions
of partial foreclosure that may be brought hereunder to recover any amount or
amounts expended by Beneficiary on behalf of Trustor in order to cure any of
Trustor's defaults or to satisfy any of Trustor's obligations or covenants under
any agreement relating to the Trust Estate and to which Trustor is a party or by
which the Trust Estate is bound.
SECTION 4.2. COMPLIANCE WITH LAW; MAINTENANCE OF APPROVALS.
Except as expressly permitted by the Indenture, Trustor shall (i) comply with
all requirements of law applicable to the ownership, operation, use and
occupancy of all or any portion of the Trust Estate, whether or not such
compliance requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, or structural or nonstructural, and (ii)
maintain in full force and effect all authorizations, approvals or other
actions, including, without limitation, Gaming Licenses and liquor licenses and
permits, which are necessary or desirable for the performance of Trustor's
obligations pursuant to this Deed of Trust or for the business conducted by
Trustor on the Property.
SECTION 4.3. OTHER REPORTS. Trustor shall provide from time to
time such additional information regarding Trustor or the Trust Estate as are
required under the Indenture or as Beneficiary may reasonably request.
SECTION 4.4. INSURANCE. Trustor, at its sole cost and expense,
will provide, maintain and keep in force the insurance required by Section 4.16
of the Indenture ("Insurance Policies").
SECTION 4.5. WASTE AND REPAIR. Except as expressly permitted by
Section 4.15 of the Indenture, Trustor shall at all times cause the Trust Estate
to be maintained in normal working order and condition (reasonable wear and tear
excepted). Trustor shall not suffer any waste of the Property or do or permit to
be done thereon anything not otherwise permitted in the Indenture that may in
any way impair the security of this Deed of Trust. Trustor shall not abandon the
Property nor leave the Property unprotected or deserted.
SECTION 4.6. IMPOSITIONS; IMPOUNDS; TAXES; CAPITAL COSTS.
4.6.1. IMPOSITIONS AFFECTING THE PROPERTY. Trustor shall pay when
due all Impositions (or currently payable installments thereof) that are or that
may become a lien on the Property or are assessed against the Property or the
Rents; provided, however, that Trustor may, at its expense, contest the amount
or validity or application of any such Impositions by appropriate legal
proceedings promptly initiated and conducted in good faith and with due
diligence; provided that (i) neither the Property nor any substantial part
thereof will be in danger of being sold, for-
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feited, terminated, canceled, or lost as a result of such contest, and (ii)
except in the case of a Lien junior to the Lien of this Deed of Trust, Trustor
shall have posted such bond or furnished such other security as may be required
by law to release such Lien.
4.6.2. IMPOUNDS; IMPOUND ACCOUNT. Upon the occurrence and during
the continuance of an Event of Default and at the request of Beneficiary,
Trustor will pay to Beneficiary monthly an amount equal to one-twelfth (1/12th)
of the annual cost (or such greater amount as may be reasonably necessary for
Beneficiary to have on hand sufficient funds to pay the next installment prior
to delinquency) of Impositions on the Property (but only those Impositions
defined in clause (i) of the definition of "Impositions"), together with an
amount equal to the estimated next hazard and other required insurance premiums
in order to accumulate with Beneficiary sufficient funds to pay such Impositions
and premiums at least 30 days prior to their respective due dates. Such funds
shall be held by Beneficiary on a commingled basis and shall not bear interest.
Said accumulated funds shall be paid and applied by Beneficiary with respect to
such Impositions and insurance premiums as and when due.
SECTION 4.7. FURTHER ASSURANCES. Trustor shall, at its own
expense, perform such acts as may be necessary, or that Beneficiary may request
at any time, to execute, acknowledge and deliver all such additional papers and
instruments (including, without limitation, a declaration of no setoff) and all
such further assurances of title and will do or cause to be done all further
acts and things as may be proper or reasonably necessary to carry out the
purpose hereof and to subject to the Liens hereof any property intended by the
terms hereof to be covered thereby and any renewals, additions, substitutions,
replacements or betterments thereto.
SECTION 4.8. REIMBURSEMENT: WAIVER OF OFFSETS.
4.8.1. In the event any tax, stamp tax, assessment, water rate,
sewer rate, insurance premium, repair, rent charge, debt, claim, inspection,
Imposition or lien having priority over the Lien of this Deed of Trust, or in
the event any other amount required to be paid by Trustor hereunder shall remain
unpaid and Trustor is not contesting such amount pursuant to the terms hereof or
the Indenture, Beneficiary shall have the right to pay such amount and shall
have the right to declare immediately due and payable any such amount so paid.
Any amount so paid by Beneficiary shall bear interest at the default interest
rate specified in Section 4.1 of the Indenture ("Default Rate") from the date of
payment by Beneficiary, shall constitute an additional Secured Obligation
secured hereby, prior to any right, title or interest in or claim upon the Trust
Estate attaching or accruing subsequent to the Lien of this Deed of Trust, shall
be secured by this Deed of Trust and shall be payable by Trustor to Beneficiary
within thirty (30) days after receipt by Trustor of written demand.
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4.8.2. Except as otherwise provided herein, in the Indenture or in the other
Security Documents, all sums payable by Trustor hereunder or under the other
Security Documents shall be paid without notice, demand, counterclaim, setoff,
deduction or defense and without abatement, suspension, deferment, diminution or
reduction, and the obligations and liabilities of Trustor hereunder shall in no
way be released, discharged or otherwise affected by reason of: (i) any damage
to or destruction of or any condemnation or similar taking of the Trust Estate
or any part thereof; (ii) any restriction or prevention of or interference with
any use of the Trust Estate or any part thereof; (iii) any title defect or
encumbrance or any eviction from the Property or the Improvements or any part
thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Beneficiary, or any action taken with respect to this
Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any
such proceeding; (v) any claim which Trustor has or might have against
Beneficiary; (vi) any default or failure on the part of Beneficiary to perform
or comply with any of the terms hereof or of any other agreement with Trustor or
(vii) any other occurrence whatsoever, whether similar or dissimilar to the
foregoing; whether or not Trustor shall have notice or knowledge of any of the
foregoing. Trustor waives all rights now or hereafter conferred by statute or
otherwise to any abatement, suspension, deferment, diminution or reduction of
any sum secured hereby and payable by Trustor.
SECTION 4.9. LITIGATION. Trustor will, promptly upon obtaining
actual knowledge thereof, give notice in writing to Beneficiary of any
litigation commenced that is likely to have a material adverse effect on the
Property or the Liens created hereby other than unlawful detainer proceedings
brought by Trustor.
SECTION 4.10. CERTAIN REPORTS. Trustor will, promptly and in any
event within fifteen days after actual receipt by Trustor thereof, deliver to
Beneficiary a copy of any written notice or citation concerning any actual,
alleged or suspected violation of Environmental Requirements or liability of
Trustor for Environmental Damages in connection with the Property or past or
present activities of any Person thereon.
SECTION 4.11. TAX RECEIPTS. Subject to the provisions of Section
4.5 hereof, Trustor shall provide to Beneficiary, within 30 days after demand
made therefor, bills (which shall be receipted from and after the date receipted
bills are obtainable) showing the payment to the extent then due of all taxes,
assessments (including those payable in periodic installments), water rates,
sewer rates, and/or any other Imposition that have become a lien (other than an
inchoate lien) upon the Trust Estate.
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SECTION 4.12. FIRPTA AFFIDAVIT. Trustor hereby represents and
warrants to Beneficiary under penalty of perjury:
(i) Trustor's U.S. Taxpayer Identification Number is 88-
0203264;
(ii) Trustor's business address is set forth in the
preamble hereto; and
(iii) Trustor is not a "foreign person" within the meaning
of Sections 1445 and 7701 of the Code (i.e., Trustor is not a nonresident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined in the Code and regulations promulgated thereunder).
Trustor agrees to indemnify, defend, protect and hold Beneficiary and
Beneficiary's agents harmless of, from and against any and all loss, liability,
costs, damages, claims or causes of action including reasonable attorneys' fees,
costs and expenses which may be actually incurred by Beneficiary or
Beneficiary's agents by reason of any failure of any representation or warranty
made by Trustor in this Section 4.12 to be true and correct in all respects,
including, but not limited to, any liability for failure to withhold any amount
required under Code Section 1445 in the event of foreclosure or other transfer
of the Property.
SECTION 4.13. PRESERVATION OF CONTRACTUAL RIGHTS. Except as
otherwise expressly permitted by the Indenture, Trustor shall, prior to
delinquency, default or forfeiture, perform all obligations and satisfy all
material conditions required on its part to be satisfied to preserve its rights
and privileges under any contract, lease, license, permit or other authorization
(a) under which it holds any Tangible Property, or (b) which constitutes part of
the Intangible Property.
SECTION 4.14. TAX SERVICE CONTRACT. At any time after the
occurrence of an Event of Default (whether or not such Event of Default is
cured), at the request of Beneficiary and at Trustor's and/or its permitted
successor's sole expense, Beneficiary shall be furnished a tax service contract
in form satisfactory to Beneficiary issued by a tax reporting agency
satisfactory to Beneficiary, which contract shall remain in force until
indefeasible discharge in full of the Secured Obligations.
SECTION 4.15. LIENS. Trustor shall pay and promptly discharge, at
Trustor's cost and expense, all Liens upon the Trust Estate, or any part thereof
or interest therein other than the Permitted Liens. Trustor shall have the right
to contest in good faith the validity of any such Lien, provided Trustor shall
first post such bond or furnish such other security as may be required by law to
release such Lien, and provided further that Trustor shall thereafter diligently
proceed to cause such
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Lien to be removed and discharged. If Trustor shall fail to discharge any such
Lien, then, in addition to any other right or remedy of Beneficiary, Beneficiary
may, but shall not be obligated to, discharge the same, either by paying the
amount claimed to be due, or by procuring the discharge of such Lien by
depositing in court a bond for the amount claimed or otherwise giving security
for such Lien, or in such manner as is or may be prescribed by law. Any amount
so paid by Beneficiary shall bear interest at the Default Rate from the date of
payment by Beneficiary, shall constitute an additional Secured Obligation
secured hereby, prior to any right, title or interest in or claim upon the Trust
Estate attaching or accruing subsequent to the Lien of this Deed of Trust, shall
be secured by this Deed of Trust and shall be payable by Trustor to Beneficiary
upon demand.
SECTION 4.16. INSPECTION. Trustor shall permit Beneficiary, upon
24 hours' prior notice, to enter upon and inspect, during normal business hours,
the Property and the construction and operation thereof, for such purposes
reasonably deemed necessary by Beneficiary, it being agreed by Trustor that
Beneficiary's good faith belief of the existence of a past or present release or
threatened release of any Hazardous Material into, onto, beneath or from the
Property shall be conclusively deemed reasonable; provided, however, that no
such prior notice shall be necessary and such inspection may occur at any time
if (i) Beneficiary reasonably believes that an emergency exists or is imminent
or (ii) the giving or delivery of such notice is prohibited or stayed by
Applicable Laws.
ARTICLE 5.
[RESERVED]
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
SECTION 6.1. RESTRICTIVE USES. Trustor covenants not to suffer
any Liens against the Trust Estate (other than Permitted Liens).
SECTION 6.2. TRANSFERABILITY. Trustor shall not make any Asset
Sale unless the proceeds of such Asset Sale are applied as permitted or required
by Section 4.10 of the Indenture.
SECTION 6.3. NO COOPERATIVE OR CONDOMINIUM. Trustor shall not
operate or permit the Property to be operated as a cooperative or condominium
building or buildings in which the tenants or occupants participate in the
ownership,
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control or management of the Property or any part thereof, as tenant
stockholders or otherwise.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
SECTION 7.1. CASUALTIES.
7.1.1. Trustor will notify Beneficiary in writing promptly after
loss or damage caused by fire, wind or other casualty to the Property
("Casualty").
7.1.2. Any and all Net Proceeds from Insurance Policies shall be
treated in accordance with Section 4.10 of the Indenture and shall be released
to Trustor or applied to the discharge of the Secured Obligations as set forth
in the Indenture.
7.1.3. If Trustor elects to apply Net Proceeds of insurance to
restoration, Trustor agrees promptly and without delay (a) to enter into, and
deliver to Beneficiary a certified copy of, one or more architect and building
contracts providing for the restoration and reconstruction of the Property to
as good or better condition as existed prior to the Casualty and (b) to begin
to restore and reconstruct the Property and, thereafter, to proceed diligently
therewith in accordance with plans, specifications, architectural standards and
design reasonably determined by Trustor.
7.1.4. Notwithstanding anything to the contrary contained herein,
in the event of any uninsured Casualty, Trustor shall promptly within a
reasonable time, at its own cost and expense, restore and reconstruct the
Property to as good or better condition as existed prior to the Casualty.
Trustor shall have the sole right to settle any and all losses and claims unless
an Event of Default then exists.
SECTION 7.2. CONDEMNATION. Trustor, immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
entire Property or any material portion thereof, will notify Trustee and
Beneficiary of the pendency of such proceedings. Trustee and Beneficiary may
participate in any such proceedings and Trustor from time to time will deliver
to Beneficiary all instruments requested by Beneficiary to permit such
participation; provided, however, that Trustor shall have the sole right to
participate in and settle any and all such proceedings unless an Event of
Default then exists. In any such condemnation proceedings Beneficiary may be
represented by counsel selected by Beneficiary at the sole cost and expense of
Trustor. Trustor shall cause the Net Proceeds of any award or compensation or
payment in lieu or settlement thereof, to be applied as set forth in Section
4.10 of the Indenture.
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ARTICLE 8.
REMEDIES OF BENEFICIARY
SECTION 8.1. EVENT OF DEFAULT. Subject to any applicable cure
period provided for in the Indenture or in this Deed of Trust, or if no cure
period has been specified then 30 days after Beneficiary has provided written
notice to Trustor with respect thereto (any such cure periods to run
concurrently and not consecutively), any of the following shall be deemed to be
an "Event of Default" hereunder:
8.1.1. The occurrence of one or more "Events of Default" (as
defined in Section 6.1 of the Indenture) shall constitute an Event of Default
under this Deed of Trust.
8.1.2. Failure of Trustor to perform any of the terms, covenants
and conditions in this Deed of Trust or any of the other Security Documents.
8.1.3. Any statement, representation or warranty given by Trustor
to Trustee or Beneficiary in any of the Security Documents, in connection with
the Indenture or in any other document provided by Trustor, including this Deed
of Trust, is found to be materially false or misleading.
8.1.4. A material default under, or the institution of
foreclosure or other proceedings to enforce, any Lien or Permitted Lien of any
kind upon the Property or any portion thereof.
8.1.5. Any transfer of the Property or any portion thereof in
violation of Section 6.2 hereof.
SECTION 8.2. REMEDIES. At any time after an Event of Default,
subject to any restrictions contained in any Intercreditor Agreement,
Beneficiary may:
8.2.1. In person, by agent, or by a receiver, and without regard
to the adequacy of security, the solvency of Trustor or any other matter, (i)
enter upon and take possession of the Property, or any part thereof, in its own
name or in the name of Trustee, (ii) inspect the Property for the purpose of
determining the existence, location, nature and magnitude of any past or present
release of Hazardous Materials into, onto, beneath or from the Property, (iii)
negotiate with Governmental Authorities with respect to compliance with
Environmental Requirements and remedial measures, (iv) take any action necessary
to ensure compliance with Environmental Requirements, including, but not limited
to, spending Rents in connection with any cleanup, remediation or other response
action with respect to Hazardous Materials or (v) xxx for or otherwise collect
the Rents,
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issues and profits thereof and apply the same, less costs and expenses of
operation and collection, including reasonable attorneys' fees actually
incurred, to the Secured Obligations, all in such order as Beneficiary may
determine. The entering upon and taking possession of said Property, the
collection of such Rents, issues and profits and the application thereof as
aforesaid shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice, or deprive Beneficiary of the
benefits of any indemnity set forth herein;
8.2.2. Commence an action to foreclose this Deed of Trust in the
manner provided by Applicable Laws for the foreclosure of mortgages or deeds of
trust of real property;
8.2.3. Seek a judgment that Trustor has breached its covenants,
representations and/or warranties set forth in this Deed of Trust, or any other
Security Document regarding Environmental Requirements and/or Hazardous
Materials, by commencing, maintaining and concluding, and enforcing a judgment
arising from, an action for breach of contract, without regard to whether
Beneficiary has commenced an action to foreclose this Deed of Trust, and to seek
injunctive or other appropriate equitable relief and/or the recovery of any and
all Environmental Damages, it being conclusively presumed between Trustor and
Beneficiary that any reasonable costs advanced or expenses actually incurred by
Beneficiary relating to the cleanup, remediation or other response action with
respect to the Property were made or incurred by Beneficiary in good faith.
8.2.4. Deliver to Trustee a written declaration of default and
demand for sale, and a written notice of default and election to cause the
Property to be sold, which notice Trustee or Beneficiary shall cause to be duly
filed for record;
8.2.5. If the Secured Obligation become or are declared
immediately due and payable pursuant to Section 6.2 of the Indenture and Trustor
fails to make such payment as and when due, then Beneficiary may waive its Liens
against any parcel of the Property or all or any portion of the Fixtures or
Personalty attached to the Property, to the extent such property is determined
to be environmentally impaired, and to exercise any and all rights of an
unsecured creditor against Trustor and all of Trustor's assets for the recovery
of any deficiency, including, but not limited to, seeking an attachment order.
TRUSTOR ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY,
EXPRESS OR IMPLIED, IN THIS DEED OF TRUST OR IN ANY OF THE OTHER SECURITY
DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY NONRECOURSE OR EXCULPATORY
LANGUAGE, IF ANY), TRUSTOR SHALL BE PERSONALLY LIABLE FOR ANY RECOVERY DESCRIBED
IN THIS PARAGRAPH 8.2.5. AND SUCH LIABILITY SHALL NOT BE LIMITED TO THE AMOUNT
OF THE NOTES;
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8.2.6. With respect to any Personalty, proceed as to both the
real and personal property in accordance with Beneficiary's rights and remedies
in respect of the Property, or proceed to sell said Personalty separately and
without regard to the Property in accordance with Beneficiary's rights and
remedies; and/or
8.2.7. Pursue any and all other remedies it may have, at law or
in equity, or under any other document or instrument, except as otherwise
provided in the Indenture.
SECTION 8.3. POWER OF SALE. Should Beneficiary elect to foreclose
by exercise of the power of sale herein contained, Beneficiary shall notify
Trustee and shall deposit with Trustee this Deed of Trust and such receipts and
evidence of expenditures made and secured hereby as Trustee may require.
8.3.1. Upon receipt of such notice from Beneficiary, Trustee
shall cause to be recorded, published and delivered to Trustor notices of
default and sale to be given in accordance with the provisions of Applicable
Laws, including NRS Chapter 107. Trustee shall, without demand on Trustor, after
lapse of such time as may then be required by Applicable Laws and after
recordation of such notice of default and after notice of sale having been given
as required by law, sell the Trust Estate at the time and place of sale fixed by
it in said notice of sale, either as a whole, or in separate lots or parcels or
items as Trustee shall deem expedient, and in such order as it may determine, at
public auction to the highest bidder for cash in lawful money of the United
States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property
so sold, but without any covenant or warranty, express or implied. The recitals
in such deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Any Person, including, without limitation, Trustor or
Beneficiary, may purchase at such sale and Trustor hereby covenants to warrant
and defend the title of such purchaser or purchasers against the claims of all
Persons claiming by, through or under Trustor. If allowed by law, Beneficiary,
if it is the purchaser, may apply the amount of the Secured Obligations then due
and payable toward payment of the purchase price. Trustor hereby waives its
right, if any, to require that the Property be sold as separate tracts or units
in the event of foreclosure.
8.3.2. Trustee, upon such sale, shall make (without any covenant
or warranty, express or implied), execute and, after due payment made, deliver
to purchaser or purchasers, or his or their heirs or assigns, a deed or deeds,
or other record or records of interest, as the case may be, in and to the
Property so sold that shall convey to the purchaser all the title and interest
of Trustor in the Property (or the portion thereof sold), and after deducting
all costs, fees and expenses of Trustee and of this Deed of Trust, including
costs of evidence of title in connection with sale, shall apply the proceeds of
sale to payment of (i) all sums expended under the terms hereof, not then
repaid, with
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accrued interest at the Default Rate and (ii) all other sums then secured hereby
and the remainder, if any, to the Person or Persons legally entitled thereto.
8.3.3. Trustee may postpone sale of all or any portion of the
Trust Estate by public announcement at such time and place of sale, or as
otherwise permitted by Applicable Laws, and from time to time thereafter may
postpone such sale by public announcement at the time fixed by the preceding
postponement or subsequently noticed sale, and without further notice make such
sale at the time fixed by the last postponement, or may, in its discretion, give
a new notice of sale. Beneficiary may rescind any notice of default at any time
before Trustee's sale by executing a notice of rescission and recording the
same. The recordation of such notice of rescission shall constitute a
cancellation of any prior declaration of default and demand for sale. The
exercise by Beneficiary of the right of rescission shall not constitute a waiver
of any default then existing or subsequently occurring, or impair the right of
Beneficiary to execute other declarations of default and demand for sale, or
notices of default and of election to cause the Property to be sold nor
otherwise affect the Security Documents or this Deed of Trust, or any of the
rights, obligations or remedies of Beneficiary or Trustee hereunder.
SECTION 8.4. PROOF OF DEFAULT. In the event of a sale of the
Property, or any part thereof, and the execution of a deed or deeds therefor,
the recital therein of default, and of recording notice of breach and election
of sale, and of the elapsing of the required time (if any) between the foregoing
recording and the following notice, and of the giving of notice of sale, and of
a demand by Beneficiary, or its successors or assigns, that such sale should be
made, shall be conclusive proof of such default, recording, election, elapsing
of time, and of the due giving of such notice, and that the sale was regularly
and validly made on due and proper demand by Beneficiary, its successors or
assigns; and any such deed or deeds with such recitals therein shall be
effectual and conclusive against Trustor, its successors and assigns, and all
other Persons; and the receipt for the purchase money recited or contained in
any deed executed to the purchaser as aforesaid shall be sufficient discharge to
such purchaser from all obligations to see to the proper application of the
purchase money.
SECTION 8.5. PROTECTION OF SECURITY. If an Event of Default shall
have occurred and be continuing, then upon at least 15 days prior written notice
to Trustor and without releasing Trustor from any obligations or defaults
hereunder, Beneficiary or Trustee shall have the right, but not the obligation,
to: (i) make payment or otherwise perform such obligations of Trustor upon which
such Event of Default is based in such manner and to such extent as either may
reasonably deem necessary to protect the security hereof, Beneficiary and
Trustee being authorized to enter upon the Property for such purpose; (ii)
appear in and defend any action or proceeding purporting to affect, in any
manner whatsoever, the Secured Obligations, the security hereof or the rights or
powers of Beneficiary or Trustee; (iii) pay, purchase or compromise any
encumbrance, charge or lien (other than Permitted Liens); (iv) advance any and
all costs and expenses
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reasonably necessary to cure or pay Environmental Damages or otherwise to comply
with Environmental Requirements; and (v) in exercising any such powers, pay
necessary expenses, employ counsel and pay attorneys' fees. Trustor hereby
agrees to repay within thirty (30) days after receipt of written demand all
reasonable sums actually expended by Trustee or Beneficiary pursuant to this
Section 8.5. with interest at the Default Rate from the date of expenditure by
Beneficiary, and such sums, with interest, shall be secured hereby.
SECTION 8.6. RECEIVER. If an Event of Default shall have occurred
and be continuing, Beneficiary, as a matter of strict right and without regard
to the then value of the Property, shall have the right to apply to any court
having jurisdiction to appoint a Receiver or Receivers of the Property. Any such
Receiver or Receivers shall have all the powers and duties of receivers under
Applicable Laws in like or similar cases and all the powers and duties of
Beneficiary in case of entry as provided in this Deed of Trust, and shall
continue as such and exercise all such powers until the date of confirmation of
sale, unless such receivership is sooner terminated.
SECTION 8.7. CURING OF DEFAULTS.
8.7.1. If Trustor shall at any time fail to perform or comply
with any of the terms, covenants and conditions required on Trustor's part to be
performed and complied with under this Deed of Trust or any other Security
Document relating to the Trust Estate (after the lapse of any cure period
provided therein), then Beneficiary shall have the right, but not the
obligation, without waiving or releasing any of the Secured Obligations, to:
8.7.1.1. make any payments thereunder payable by Trustor
and take out, pay for and maintain any of the insurance policies provided for
therein, and/or
8.7.1.2. after the expiration of any applicable grace
period and subject to Trustor's rights to contest certain obligations
specifically granted hereby, perform any such other acts thereunder on the part
of Trustor to be performed and enter upon the Property and incur reasonable
attorneys' fees and expenses for such purpose.
8.7.2. The making by Beneficiary of such payment out of
Beneficiary's own funds shall not, however, be deemed to cure such default by
Trustor, and the same shall not be so cured unless and until Trustor shall have
reimbursed Beneficiary within the applicable cure period for such payment
including interest at the Default Rate from the date of such expenditure. All
sums so paid and all reasonable costs and expenses actually incurred and paid by
Beneficiary in connection with the performance of any such act, together with
interest on unpaid balances thereof at the Default Rate from the respective
dates of Beneficiary's making of each such payment, shall be secured by the lien
of this Deed of Trust, prior to any right, title or interest in or claim upon
the Property
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attaching or accruing subsequent to the lien of this Deed of Trust, and shall be
payable by Trustor to Beneficiary within thirty (30) days after receipt of
written demand.
SECTION 8.8. REMEDIES CUMULATIVE. All remedies of Beneficiary
provided for herein are cumulative and shall be in addition to any and all other
rights and remedies provided in the other Security Documents or provided by
Applicable Law, including any banker's lien and right of offset. The exercise of
any right or remedy by Beneficiary hereunder shall not in any way constitute a
cure or waiver of default hereunder or under the Security Documents, or
invalidate any act done pursuant to any notice of default, or prejudice
Beneficiary in the exercise of any of its rights hereunder or under the Security
Documents unless, in the exercise of said rights, all Secured Obligations are
fully discharged.
ARTICLE 9.
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 9.1. Grant of Security Interest. To secure the payment
and performance of the Secured Obligations as and when due, Trustor (as debtor)
hereby grants, conveys, pledges, assigns and transfers to Beneficiary (as
secured party), as agent and representative for the equal and ratable benefit of
Trustee and the Holders, security interests (collectively, the "Security
Interest") in, all right, title, claim, estate and interest in and to all
Personalty and Fixtures, other than Excluded Assets, whether now owned and
existing or hereafter acquired or arising, and wherever located, including,
without limitation, the following but expressly excluding in each case any
Excluded Assets:
9.1.1. Any and all "chattel paper" as such term is defined in
Section 9-105(b) of the UCC (the "Chattel Paper");
9.1.2. Any and all "accounts" as such term is defined in Section
9-106 of the UCC (the "Accounts");
9.1.3. Any and all rights to payment for goods sold or leased or
services rendered, whether or not earned by performance and all rights in
respect of the Account Debtor, including without limitation all such rights
constituting or evidenced by any Account, Chattel Paper or Instrument, together
with (a) any collateral assigned, hypothecated or held to secure any of the
foregoing and the rights under any security agreement granting a security
interest in such collateral, (b) all goods, the sale of which gave rise to any
of the foregoing, including, without limitation, all rights in any returned or
repossessed goods and unpaid seller's rights, (c) all guarantees, endorsements
and indemnifications on, or of, any of the foregoing and (d) all powers of
attorney for the execution of any evidence of indebtedness or security or other
writing in connection therewith Any and all negotiable instruments, promissory
notes, acceptances, drafts, checks, certificates
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of deposit and other writings that evidence a right to the payment of money by
any other Person ("Receivables").
9.1.4. Any and (a) all original copies of all documents,
instruments or other writings evidencing the Receivables, (b) all books,
correspondence, credit or other files, records, ledger sheets or cards,
invoices, and other papers relating to Receivables, including without limitation
all tapes, cards, computer tapes, computer discs, computer runs, record keeping
systems and other papers and documents relating to the Receivables, whether in
the possession or under the control of any Trustor or any computer bureau or
agent from time to time acting for any Trustor or otherwise and (c) all credit
information, reports and memoranda relating thereto ("Receivables Records");
9.1.5. Any and all rights to payment:
9.1.5.1. to the extent not included in Accounts,
Receivables or Chattel Paper, receivable from any credit card company (such as
Visa, MasterCard, American Express and Diner's Club), whether arising out of or
relating to the sale of lodging, goods and services by Trustor or otherwise; and
9.1.5.2. of money not listed above and any and all rights,
titles, interests, securities, Liens and guaranties evidencing, securing,
guaranteeing payment of or in any way relating to any Receivables;
9.1.6. "Inventory" as such term is defined in Section 9-109(4) of
the UCC, including without limitation and in any event, all goods (whether such
goods are in the possession of Trustor or a lessee, bailee or other Person for
sale, lease, storage, transit, processing, use or otherwise and whether
consisting of whole goods, spare parts, components, supplies, materials or
consigned or returned or repossessed goods) which are held for sale or lease or
are to be furnished (or which have been furnished) under any contract of service
or which are raw materials or work in progress or materials used or consumed in
any Trustor's business ("Inventory");
9.1.7. Any and all equipment "equipment" as such term is defined
in Section 9-109(2) of the UCC, including, without limitation ("Equipment"):
9.1.7.1. machinery, machine tools, manufacturing
equipment, data processing equipment, computers, office equipment, furniture,
appliances, rolling stock, motors, pumps, controls, tools, parts, works of art,
furnishings and trade fixtures, all athletic equipment and supplies and all
molds, dies, drawings, blueprints, reports, catalogs and computer programs
related to any of the above,
9.1.7.2. ships, boats, barges and vessels (whether under
construction or completed) and any and all masts, bowsprits, boilers, engines,
sails, fittings,
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anchors, cables, chains, riggings, tackle, apparel, capstans, outfits, gears,
appliances, fittings and spare and replacement parts and other appurtenances,
accessories and additions, improvements and replacements thereto, whether on
board or not on board, in or to any ship, boat, barge or vessel,
9.1.7.3. slot machines, electronic gaming devices and
related equipment, crap tables, blackjack tables, roulette tables, baccarat
tables, keno apparatus, cards, dice, gaming chips and plaques, tokens, chip
racks, dealing shoes, dice cups, dice sticks, layouts, paddles, roulette balls
and other supplies and items used in connection with gaming operations, and
9.1.7.4. stones, wood, steel and other materials used or
to be used in the building, construction, repair, renovation, refurbishment or
otherwise with respect to improvements or ships, boats, barges or vessels.
9.1.8. Any and all "fixtures" as such term is defined in Section
9-313 of the UCC, including without limitation, machinery, equipment or
appliances for generating, storing or distributing air, water, heat,
electricity, light, fuel or refrigeration, for ventilating or sanitary purposes,
elevators, safes, laundry, kitchen and athletic equipment, trade fixtures, and
telephone, television and other communications equipment (the "Fixtures");
9.1.9. Any and all "documents" as such term is defined in Section
9-105(f) of the UCC (the "Documents");
9.1.10. Any and all "general intangibles" as such term is defined
in Section 9-106 of the UCC (together with any property listed under Section
9.1.4. relating thereto, the "General Intangibles"), including, without
limitation and in any event, rights to the following: payment of money,
Trademarks, Copyrights (as defined in the Security and Pledge Agreement),
Patents (as defined in the Security and Pledge Agreement), and Contracts (as
defined in the Security and Pledge Agreement), licenses (including all Gaming
Licenses that are not Excluded Assets) and franchises (except, in the case of
licenses and franchises if, and for so long as, the agreement in respect of such
license or franchise prohibits by its terms any assignment or grant of a
security interest therein without the consent of the other party thereto, would
not give any other party to such franchise or license the right to terminate its
obligations thereunder), limited and general partnership interests and joint
venture interests, federal income tax refunds, trade names, distributions on
certificated securities (as defined in Section 8-102(1)(a) of the UCC) and
uncertificated securities (as defined in Section 8-102(1)(b) of the UCC),
computer programs and other computer software, inventions, designs, trade
secrets, goodwill, proprietary rights, customer lists, Player Tracking Systems,
supplier contracts, sale orders, correspondence, advertising materials, payments
due in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of any property, reversion-
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ary interests in pension and profit-sharing plans and reversionary, beneficial
and residual interests in trusts, credits with and other claims against any
Person, together with any collateral for any of the foregoing and the rights
under any security agreement granting a security interest in such collateral.
9.1.11. The account (which may be a securities account)
established and maintained pursuant to Section 8 of the Security and Pledge
Agreement by Beneficiary, entitled Fitzgeralds 2004 Senior Secured Notes
Collateral Account, The Bank of New York, as collateral agent, secured party",
and all funds, securities and other property or other items from time to time
credited to such account and all interest, income and distributions thereon
("Collateral Account").
9.1.12. Any and all (i) shares of capital stock of any
Subsidiary, from time to time owned by Trustor or options or rights to acquire
any such shares or interests now or hereafter owned by Trustor, (ii)
Distributions (as defined below) on Pledged Securities (as constituted
immediately prior to such Distribution) constituting securities (whether debt or
equity securities or otherwise), (iii) other or additional stock, notes,
securities or property paid or distributed in respect of Pledged Securities (as
constituted immediately prior to such payment or distribution) by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement and (iv) other or additional stock, notes, securities or
property (including cash) that may be paid in respect of Pledged Securities (as
constituted immediately prior to such payment) by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation, bankruptcy or
similar corporate reorganization or other disposition of Pledged Securities
("Pledged Securities").
9.1.13. Any and all dividends, distributions, payments of
interest and principal and other amounts (whether consisting of cash,
securities, personalty or other property) from time to time received, receivable
or otherwise distributed in respect of or in exchange or substitution for any of
the Pledged Securities ("Distributions").
9.1.14. Any and all "instruments" as such term is defined in
Section 9- 105(1)(i) of the UCC ("Instruments").
9.1.15. The Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks, the Trademark Licenses, and the Trade Secrets,
all as defined in the Security and Pledge Agreement ("Intellectual Property
Collateral").
9.1.16. Any and all contracts between Trustor and one or more
additional parties ("Contracts").
9.1.17. Any and all interest rate or currency protection or
hedging arrangements, including without limitation, caps, collars, floors,
forwards and any other
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similar or dissimilar interest rate or currency exchange agreements or other
interest rate or currency hedging arrangements ("Hedging Agreements").
9.1.18. Any and all motor vehicles, tractors, trailers and other
like property, if title thereto is governed by a certificate of title ownership
("Motor Vehicles").
9.1.19. Any and all books, records, computer software, computer
printouts, customer lists, blueprints, technical specifications, manuals, and
similar items which relate to any Personalty or Fixtures other than such items
obtained under license or franchise agreements that prohibit assignment or
disclosure of such items ("Books and Records");
9.1.20. Any and all accessions, appurtenances, components,
repairs, repair parts, spare parts, renewals, improvements, replacements,
substitutions and additions to, of or with respect to any of the foregoing;
9.1.21. Any and all rights, remedies, powers and privileges of
Trustor with respect to any of the foregoing; and
9.1.22. Any and all proceeds and products of any of the
foregoing, whether now held and existing or hereafter acquired or arising,
including all rents, issues, income and profits of or from any of the foregoing
(collectively, the "Proceeds"). "Proceeds" shall include (i) whatever is now or
hereafter received by Trustor upon the sale, exchange, collection, other
disposition or operation of any item of Personalty, whether such proceeds
constitute accounts, general intangibles, instruments, securities, documents,
letters of credit, chattel paper, deposit accounts, money, goods or other
personal property, (ii) any amounts now or hereafter payable under any insurance
policy by reason of any loss of or damage to any Personalty or the business of
Trustor, (iii) all rights to payment and payments for hotel room occupancy (and
related reservations) and the sale of services or products in connection
therewith, (iv) the right to further transfer, including by pledge, mortgage,
license, assignment or sale, any of the foregoing, and (v) any items that are
now or hereafter acquired by Trustor with any of the foregoing, provided that
"Proceeds" shall not include Excluded Assets.
SECTION 9.2. Remedies, etc. This Deed of Trust constitutes a
security agreement with respect to the Personalty, in which Beneficiary is
granted a security interest hereunder, and Beneficiary shall have all of the
rights and remedies of a secured party under the Applicable UCC and the other
Security Documents as well as all other rights and remedies available at law or
in equity. Upon the occurrence and during the continuance of any Event of
Default hereunder, Beneficiary shall have (i) the right to cause any of the
Personalty which is personal property to be sold at any one or more public or
private sales as permitted by Applicable Laws and apply the proceed thereof to
the Secured Obligations, (ii) the right to collect and apply to the Secured
Obligations any
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Personalty which is cash, Notes Receivable, other rights to payment or Chattel
Paper, and (iii) all other rights and remedies, whether at law, in equity, or by
statute as are available to secured creditors under Applicable Laws. Any such
disposition may be conducted by an employee or agent of Beneficiary or Trustee.
To the maximum extent permitted by Applicable Law, any Person, including either
or both of Trustor and Beneficiary, shall be eligible to purchase any part or
all of such Personalty at any such disposition. Beneficiary shall give Trustor
at least 10 days' prior written notice of the time and place of any public sale
or other disposition of such Personalty or of the time of or after which any
private sale or any other intended disposition is to be made, and if such notice
is sent to Trustor in the manner provided for the mailing of notices herein, it
is hereby deemed such notice shall be and is commercially reasonable notice to
Trustor.
SECTION 9.3. EXPENSES. Reasonable expenses actually incurred of
retaking, holding, preparing for sale, selling or the like shall be borne by
Trustor and shall include Beneficiary's and Trustee's reasonable attorneys'
fees, charges and disbursements (including, without limitation, any and all
costs of appeal).
SECTION 9.4. FIXTURE FILING.
9.4.1. This Deed of Trust shall be effective as a Financing
Statement filed as a fixture filing from the date of the recording hereof in
accordance with NRS Section 104.9402. In connection therewith, the addresses of
Trustor as debtor ("Debtor") and Beneficiary as secured party ("Secured Party")
are set forth on Schedule 12.8. The address of Beneficiary, as the Secured
Party, is also the address from which information concerning the security
interest may be obtained by any interested party.
9.4.1.1. The property subject to this fixture filing is
described in Sections 9.1.7. and 9.1.8.
9.4.1.2. Portions of the property subject to this fixture
filing as identified in Section 9.4.1.1. above are or are to become fixtures
related to the real estate described on Exhibit A and Exhibit B-2 to this Deed
of Trust.
9.4.1.3. Secured Party is: The Bank of New York
9.4.1.4. Debtor is: Fitzgeralds Reno, Inc.
9.4.1.5. The record owner or lessee of the Property is:
Fitzgeralds Reno, Inc.
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9.4.2. In the event Trustor shall fail, beyond any applicable
notice and grace periods, to make any payment or perform any covenant related to
any security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within 15 days after notice to Trustor or if Beneficiary's
immediate action is reasonably necessary to protect the lien hereof or its
security for the Secured Obligations, at any time without prior notice to
Trustor, pay the amount secured by such security interest, and the amount so
paid shall be (i) secured by this Deed of Trust and shall be a lien on the
Property enjoying the same priorities vis-a-vis the estates and interests
encumbered hereby as this Deed of Trust, (ii) added to the amount of the Secured
Obligations, and (iii) payable within 30 days after receipt of written demand
with interest at the Default Rate from the time of such payment; or Beneficiary
shall have the privilege of acquiring by assignment from the holder of such
security interest any and all contract rights, accounts receivable, chattel
paper, negotiable or non-negotiable instruments and other evidence of Trustor's
indebtedness secured by such fixtures, and, upon acquiring such interest by
assignment, shall have the right to enforce the security interest as assignee
thereof, in accordance with the terms and provisions of the Applicable UCC, as
amended or supplemented, and in accordance with other Applicable Laws.
ARTICLE 10.
ASSIGNMENT OF RENTS
SECTION 10.1. Assignment of Rents. Subject to Section 10.2., and
to Applicable Gaming Laws, as of the execution of this Deed of Trust, Trustor
hereby absolutely and unconditionally assigns and transfers to Beneficiary all
of the Rents, whether now due, past due or to become due, and hereby gives to
and confers upon Beneficiary the right, power and authority to collect such
Rents and apply the same to the Secured Obligations secured hereby. Trustor
irrevocably appoints Beneficiary its true and lawful attorney, at the option of
Beneficiary at any time while an Event of Default exists, to demand, receive and
enforce payment, to give receipts, releases and satisfactions, and to xxx,
either in the name of Trustor or in the name of Beneficiary, for all such Rents
and apply the same to the Secured Obligations secured hereby. It is hereby
recognized that the power of attorney herein granted is coupled with an interest
and shall not be revocable. It is understood and agreed that neither the
foregoing assignment of Rents to Beneficiary nor the exercise by Beneficiary or
any of its rights or remedies under this Deed of Trust shall be deemed to make
Beneficiary a "mortgagee-in-possession" or otherwise responsible or liable in
any manner with respect to the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof, unless and until Beneficiary, in person
or by its own agent, assumes actual possession thereof, nor shall appointment of
a Receiver for the Property by any court at the request of Beneficiary or by
agreement with Trustor or the entering into possession of the Property or any
part thereof by such Receiver be deemed to make Beneficiary a
"mortgagee-in-possession" or
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otherwise responsible or liable in any manner with respect to the Property or
the use, occupancy, enjoyment or operation of all or any portion thereof.
SECTION 10.2. Collection of Rents. Notwithstanding anything to
the contrary contained herein, so long as no Event of Default with respect to
the Notes shall occur and be continuing, Trustor shall have a license, revocable
upon the occurrence and during the continuance of an Event of Default, to
collect all Rents from the Property and to retain, use and enjoy the same and to
otherwise exercise all rights with respect thereto, subject to the terms hereof.
Upon the occurrence and during the continuance of an Event of Default, the
license hereinabove granted to Trustor shall, without the requirement of the
giving of notice or taking of any action by any party, be revoked, and
Beneficiary shall have the complete right and authority to exercise and enforce
any and all of its rights and remedies provided herein or by Applicable Laws.
ARTICLE 11.
ENVIRONMENTAL MATTERS
SECTION 11.1. Representations and Warranties. In the ordinary
course of business, Trustor conducts a periodic review of the effect of
Environmental Laws on its business, operations and properties in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for cleanup,
closure of properties or compliance with Environmental Laws or any Permit, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, Trustor has reasonably concluded
that such associated costs and liabilities could not reasonably be expected,
singly or in the aggregate, to have a Material Adverse Effect (as defined in the
Purchase Agreement). Except as adequately disclosed in the Offering Circular or
as otherwise could not, singly or in the aggregate, have a Material Adverse
Effect:
11.1.1. Trustor (i) has obtained all Permits that are required
with respect to the operation of its business, property and assets under the
Environmental Laws and is in compliance with all terms and conditions of such
required Permits, and (ii) is in compliance with all Environmental Laws
(including, without limitation, compliance with standards, schedules and
timetables therein);
11.1.2. No portion of the Trust Estate is listed or proposed for
listing on the National Priorities List or the Comprehensive Environmental
Response, Compensation, and Liability Information System, both promulgated
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), or on any other state or local list established
pursuant to any Environmental Law, and Trustor has not received any
notification of potential or actual liability or request for information under
CERCLA or any comparable state or local law;
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11.1.3. No underground storage tank or other underground storage
receptacle, or related piping, is located on the Land in violation of any
Environmental Law;
11.1.4. There have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping, on-site or, to the
knowledge of the Trustor after due inquiry, off-site) of Hazardous Materials by
Trustor or any predecessor in interest or any person or entity whose liability
for any release of Hazardous Materials, Trustor has retained or assumed either
contractually or by operation of law at, on, under, from or into any facility or
real property owned, operated, leased, managed or controlled by any such person;
11.1.5. Neither Trustor nor any person or entity whose liability
Trustor has retained or assumed either contractually or by operation of law has
any liability, absolute or contingent, under any Environmental Law, and there is
no proceeding pending or threatened against any of them under any Environmental
Law; and
11.1.6. There are no events, activities, practices, incidents or
actions or conditions, circumstances or plans that may interfere with or prevent
compliance by Trustor with any Environmental Law, or that may give rise to any
liability under any Environmental Laws.
11.1.7. The above representations and warranties contained in
this Section 11.1 shall survive the termination, release and/or reconveyance of
this Deed of Trust and the discharge of Trustor's other obligations hereunder.
SECTION 11.2. Environmental Covenants. Trustor shall at all times
comply with the following requirements:
11.2.1. Trustor shall not cause or permit any material amount of
Hazardous Material to be brought upon, treated, kept, stored, disposed of,
discharged, released, produced, manufactured, generated, refined or used upon,
within or beneath the Property or any portion thereof by Trustor, its agents,
employees, contractors, or invitees, or any other Person, except in compliance
with all Environmental Requirements and only in the course of such Person's
legitimate business operations at the Property (which shall not include any
business primarily for treatment, storage, disposal, discharge, release,
production, manufacture, generation, refinement or use of Hazardous Materials).
11.2.2. Trustor shall not cause or permit the existence or the
commission by Trustor, its agents, employees, contractors or invitees, or by any
other Person of a material violation of any Environmental Requirements upon,
within or beneath the Property or any portion thereof.
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11.2.3. Trustor shall not dispose of, discharge or release or
cause or permit the disposal, discharge or release of any material amount of
Hazardous Materials from the Property into any Public Waters in material
violation of any Environmental Requirements.
11.2.4. Trustor shall not create or suffer to exist with respect
to the Property or permit any of its agents to create or suffer to exist any
environmental lien, security interest or other charge or encumbrance of any kind
(other than a Permitted Lien), including, without limitation, any lien imposed
pursuant to Section 107(f) of the Superfund Amendments and Reauthorization Act
of 1986 (42 U.S.C. Section 9607(1)) or any similar state statute.
11.2.5. Trustor shall, at its sole cost and expense, promptly
take any and all actions required by any federal, state or local governmental
agency or political subdivision or reasonably necessary (as hereinafter
provided) to mitigate Environmental Damages, which requirements or necessity
arise from the presence upon, about or beneath the Property, of a material
amount of Hazardous Material or a material violation of Environmental
Requirements or the disposal, discharge or release of a material amount of
Hazardous Materials from the Property into the Public Waters. Such actions shall
include, but not be limited to, the investigation of the environmental condition
of the Property, the preparation of any feasibility studies, reports or remedial
plans, and the performance of any cleanup, remediation, containment, operation,
maintenance, monitoring or restoration work, whether on or off of the Property
(provided that Trustor shall be obligated to take actions off of the Property
only if Trustor shall have the legal right to do so and shall be expressly
required to do so by Environmental Requirements). Trustor shall take all actions
as are reasonably necessary to restore the Property or the Public Waters to
substantiality the condition existing prior to the introduction of Hazardous
Material by Trustor upon, about or beneath the Property, notwithstanding any
lesser standard of remediation allowable under Applicable Laws or governmental
policies, but recognizing the economic impracticability of remediating to a
level where Hazardous Materials are no longer detectable. Trustor shall proceed
continuously and diligently with such investigatory and remedial actions,
provided that in all cases such actions shall be in accordance with Applicable
Laws. Any such actions shall be performed in a good, safe and workmanlike manner
and shall minimize any impact on the business conducted at the Property. Trustor
shall pay all costs in connection with such investigatory and remedial
activities, including, but not limited to, all power and utility costs, and any
and all taxes or fees that may be applicable to such activities. Trustor shall
promptly provide to Beneficiary copies of testing results and reports that are
generated in connection with the above activities. Promptly upon completion of
such investigation and remediation, Trustor shall permanently seal or cap all
monitoring xxxxx and test holes to industrial standards in compliance with
Applicable Laws and regulations, remove all associated equipment, and restore
the Property to the extent reasonably possible, which shall
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include, without limitation, the repair of any surface damage, including paving,
caused by such investigation or remediation hereunder.
11.2.6. If Trustor shall become aware of or receive notice or
other communication concerning any actual, alleged, suspected or threatened
violation of Environmental Requirements, or liability of Trustor for
Environmental Damages in connection with the Property or past or present
activities of any Person thereon, including, but not limited to, notice or
other communication concerning any actual or threatened investigation, inquiry,
lawsuit, claim, citation, directive, summons, proceedings, complaint, notice,
order, writ or injunction, relating to same, then Trustor shall deliver to
Beneficiary, within 15 days of the receipt of such notice or communication by
Trustor, a written description of said violation, liability, or actual or
threatened event or condition, together with copies of any documents evidencing
same. Receipt of such notice shall not be deemed to create any obligation on the
part of Beneficiary to defend or otherwise respond to any such notification.
11.2.7. Trustor agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless Beneficiary, its successors and assigns, the
Holders, and their respective directors, officers, shareholders, employees,
agents, contractors, subcontractors, experts, licensees, affiliates, lessees,
trustees, and invitees (collectively, the " Indemnitees") from and against any
and all Environmental Damages arising from the discharge, disposal or release of
Hazardous Materials from the Property into the Public Waters or from the
presence of Hazardous Materials upon, about or beneath the Property or migrating
to or from the Property, or arising in any manner whatsoever out of the
violation of any Environmental Requirements pertaining to the Property and the
activities thereon, whether foreseeable or unforeseeable, and regardless of when
such Environmental Damages occurred, except to the extent directly caused by
conduct (other than inaction) on the part of such Indemnitee with respect to the
Property or any such Indemnitee's grossly negligent or wi1lful inaction or
other conduct. The indemnity obligations of Trustor contained in this Section
11.2.7. shall survive the termination, release and/or reconveyance of this Deed
of Trust and the discharge of Trustor's other obligations hereunder.
11.2.8. Except for the last sentence of Section 4.5, and except
for Sections 4.6, 4.7, 4.15 and 8.5, the other covenants of this Deed of Trust
shall not apply to the subject matter of this Article 11.
ARTICLE 12.
MISCELLANEOUS
SECTION 12.1. BENEFICIARY'S EXPENSES, INCLUDING ATTORNEY'S FEES.
Regardless of the occurrence of a Default or Event of Default, Trustor agrees to
pay to
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Beneficiary any and all advances, charges, costs and expenses, including the
reasonable fees and expenses of counsel and any experts or agents, that
Beneficiary may reasonably incur in connection with (i) the administration of
this Deed of Trust, including any amendment thereto or any workout or
restructuring, (ii) the creation, perfection or continuation of the Lien of this
Deed of Trust or protection of its priority or the Trust Estate, including the
discharging of any prior or junior Lien or adverse claim against the Trust
Estate or any part thereof that is not permitted hereby or by the Indenture,
(iii) the custody, preservation or sale of, collection from, or other
realization upon, any of the Trust Estate, (iv) the exercise or enforcement of
any of the rights, powers or remedies of Beneficiary under this Deed of Trust or
under Applicable Laws (including attorneys' fees and expenses incurred by
Beneficiary in connection with the operation, maintenance or foreclosure of the
Lien of this Deed of Trust) or any bankruptcy proceeding or (v) the failure by
Trustor to perform or observe any of the provisions hereof. All such amounts and
all other amounts payable hereunder shall be payable on demand, together with
interest at the Default Rate.
SECTION 12.2. INDEMNITY. Trustor hereby agrees to indemnify and
hold harmless the Indemnitees against (A) any and all transfer taxes,
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Deed of Trust and the other
Security Documents, and (B) any and all claims, actions, liabilities, costs and
expenses of any kind or nature whatsoever (including fees and disbursements of
counsel) that may be imposed on, incurred by, or asserted against any of them,
in any way relating to or arising out of this Deed of Trust or any action taken
or omitted by them hereunder, except to the extent that they resulted from the
gross negligence or willful misconduct of any such Indemnitee.
SECTION 12.3. WAIVERS; MODIFICATIONS IN WRITING. No amendment of
any provision of this Deed of Trust (including a waiver thereof or consent
relating thereto) shall be effective unless the same shall be in writing and
signed by Beneficiary and Trustor. Any waiver or consent relating to any
provision of this Deed of Trust shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on Trustor
in any case shall entitle Trustor to any other or further notice or demand in
similar circumstances, except as otherwise provided herein or as required by
law.
SECTION 12.4. CUMULATIVE REMEDIES; FAILURE OR DELAY. The rights
and remedies provided for under this Deed of Trust are cumulative and are not
exclusive of any rights and remedies that may be available to Beneficiary under
Applicable Laws, the other Security Documents or otherwise. No failure or delay
on the part of Beneficiary in the exercise of any power, right or remedy under
this Deed of Trust shall impair such power, right or remedy or shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude other or further exercise of such or any other power,
right or remedy.
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12.4.1. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and, subject to the next sentence, inure to the benefit of Trustor and
Beneficiary and their respective successors and assigns. Trustor shall not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of Beneficiary. The benefits of this Deed of Trust shall pass
automatically with any assignment of the Secured Obligations (or any portion
thereof), to the extent of such assignment.
SECTION 12.5. INDEPENDENCE OF COVENANTS. All covenants under this
Deed of Trust shall each be given independent effect so that, if a particular
action or condition is not permitted by any such covenant, the fact that it
would be permitted by another covenant or by an exception thereto shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
SECTION 12.6. CHANGE OF LAW. In the event of the passage, after
the date of this Deed of Trust, of any law changing in any way the laws now in
force for the taxation of mortgages, deeds of trust, or debts secured by
mortgage or deed of trust (other than laws imposing taxes on income), or the
manner of the collection of any such taxes, so as to affect adversely the rights
of Beneficiary under this Deed of Trust, then an Event of Default shall be
deemed to have occurred under Section 6.1 of the Indenture; provided, however,
that no Event of Default shall be deemed to have occurred (i) if Trustor, within
thirty (30) days after the passage of such law, shall assume the payment of any
tax or other charge so imposed upon Beneficiary for the period remaining until
discharge in full of the Secured Obligations; provided, however, that such
assumption is permitted by Applicable Laws, (ii) if the adverse effect upon
Beneficiary of such tax or other charge is not material, or (iii) if and so long
as Trustor, at its expense, shall contest the amount or validity or application
of any such tax or other charge by appropriate legal proceedings promptly
initiated and conducted in good faith and with due diligence; provided that (A)
neither the Property nor any substantial part thereof will be in danger of being
sold, forfeited, terminated, canceled, or lost as a result of such contest and
(B) except in the case of a tax or charge junior to the Lien of this Deed of
Trust, Trustor shall have posted such bond or furnished such other security as
may be required by law to release such tax or charge.
SECTION 12.7. NO WAIVER. No waiver by Beneficiary of any Default
or breach by Trustor hereunder shall be implied from any omission by Beneficiary
to take action on account of such Default if such Default persists or is
repeated, no express waiver shall affect any Default other than the Default in
the waiver, and such waiver shall be operative only for the time and to the
extent therein stated. Waivers of any covenant, term or condition contained
herein shall not be construed as a waiver of any subsequent breach of the same
covenant, term or condition. The consent or approval by Beneficiary to or of any
act by Trustor requiring further consent or approval shall not be deemed to
waive or render unnecessary the consent or approval to or of any subsequent
similar act.
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SECTION 12.8. NOTICES. All notices and other communications under
this Deed of Trust shall be in writing and shall be personally delivered or sent
by prepaid courier, by overnight, registered or certified mail (postage prepaid)
or by prepaid telex, telecopy or telegram, and shall be deemed given when
received by the intended recipient thereof. Unless otherwise specified in a
notice given in accordance with the foregoing provisions of this Section 12.8.,
notices and other communications shall be given to the parties hereto at their
respective addresses (or to their respective telex or telecopier numbers)
indicated in Section 11.2 of the Indenture or, in the case of the Trustee,
Schedule 12.8.
SECTION 12.9. REFERENCES TO FORECLOSURE. References hereto to
"foreclosure"' and related phrases shall be deemed references to the
appropriate procedure in connection with Trustee's private power of sale, any
judicial foreclosure proceeding, and any deed given in lieu of any such
Trustee's sale or judicial foreclosure.
SECTION 12.10. JOINDER OF FORECLOSURE. Should Beneficiary hold
any other or additional security for the payment and performance of any Secured
Obligation, its sale or foreclosure, upon any default in such payment or
performance, in the sole discretion of Beneficiary, may be prior to, subsequent
to, or joined or otherwise contemporaneous with any sale or foreclosure
hereunder. Except as otherwise provided in the Indenture, in addition to the
rights herein specifically conferred, Beneficiary, at any time and from time to
time, may exercise any right or remedy now or hereafter given by law to
beneficiaries under deeds of trust generally, or to the holders of any
obligations of the kind hereby secured.
SECTION 12.11. RIGHTS AND SECURED OBLIGATIONS OF BENEFICIARY AND
TRUSTEE. At any time or from time to time, without liability therefor and
without notice, and without releasing or otherwise affecting the liability of
any Person for payment of any Secured Obligations, Beneficiary at its sole
discretion and only in writing may subordinate the Liens or either of them, or
charge hereof to the extent not prohibited by the Indenture. Beneficiary and
Trustee shall, however, promptly upon Trustor's request from time to time, join
in the following actions (including the execution and delivery of documents) as
Trustor determines are reasonably necessary for the development, use and
operation of the Trust Estate: (i) the making of any map or plat of the
Property, (ii) the granting, creating, amending and modifying of any customary
easements, covenants, conditions and restrictions with respect to the Property
and (iii) the application for and prosecution of any development, building, use
and similar permits and land use and utility approvals and installations
regarding the Property; provided, however, that Beneficiary and Trustee shall
not be required to join in or take any such action (a) while an Event of Default
exists, (b) to the extent such action would impair the Liens of this Deed of
Trust or the first priority thereof or (c) to the extent prohibited by the
Indenture. Any such request shall be accompanied by an Officers' Certificate (as
defined in the Indenture). Upon written request of Beneficiary and surrender of
this Deed of Trust to
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Trustee for cancellation, and upon payment to Trustee of its reasonable fees and
expenses actually incurred, Trustee shall cancel and reconvey this Deed of
Trust.
SECTION 12.12. COPIES. Trustor will promptly give to Beneficiary
copies of all notices of material violations relating to the Property that
Trustor receives from any Governmental Authority.
SECTION 12.13. SUBORDINATION. At the option of Beneficiary, this
Deed of Trust shall become subject and subordinate in whole or in part (but not
with respect to priority of entitlement to any insurance proceeds, damages,
awards, or compensation resulting from damage to the Property or condemnation or
exercise of power of eminent domain), to any and all contracts of sale and/or
any and all leases of all or any part of the Property upon the execution by
Beneficiary and recording thereof in the official records of Xxxxx County,
Nevada of a unilateral declaration to that effect. Beneficiary may require the
issuance of such title insurance endorsements to the Title Policy in connection
with any such subordination as Beneficiary, in its judgment, shall determine are
appropriate, and Trustor shall be obligated to pay any cost or expense incurred
in connection with the issuance thereof.
SECTION 12.14. PERSONALTY SECURITY INSTRUMENTS. Trustor covenants
and agrees that if Beneficiary at any time holds additional security for any
Secured Obligations secured hereby, it may enforce the terms thereof or
otherwise realize upon the same, at its option, either before or concurrently
herewith or after a sale is made hereunder, and may apply the proceeds upon the
Secured Obligations without affecting the status or of waiving any right to
exhaust all or any other security, including the security hereunder, and without
waiving any breach or Default or any right or power whether exercised hereunder
or contained herein or in any such other security.
SECTION 12.15. SUITS TO PROTECT PROPERTY. Trustor covenants and
agrees to appear in and defend any action or proceeding the consequence of
which, if successful, would be that the Liens, or either of them, of this Deed
of Trust would not satisfy the requirements as to extent, perfection or priority
set forth in the Indenture; and to pay all reasonable costs and expenses
actually incurred by Trustee and Beneficiary, including cost of evidence of
title and attorneys' fees in a reasonable sum, in any such action or proceeding
in which Beneficiary and/or Trustee may appear or be made a party.
SECTION 12.16. TRUSTOR WAIVER OF RIGHTS. Trustor waives the
benefit of all laws now existing or that hereafter may be enacted providing for
(i) any appraisement before sale of any portion of the Trust Estate, and (ii)
the benefit of all laws that may be hereafter enacted in any way extending the
time for the enforcement of the Secured Obligations or creating or extending a
period of redemption from any sale made in collecting said debt. To the full
extent Trustor may do so, Trustor agrees that Trustor will not at any time
insist upon, plead, claim or take the benefit or advantage of any law now
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or hereafter in force providing for any appraisement, valuation, stay, extension
or redemption, and Trustor, for Trustor, Trustor's heirs, devisees,
representatives, successors and assigns, and for any and all Persons ever
claiming any interest in the Trust Estate, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
stay of execution, and marshaling in the event of foreclosure of the liens
hereby created. If any law referred to in this Section 12.16. and now in force,
of which Trustor, Trustor's heirs, devisees, representatives, successors and
assigns or other Person might take advantage despite this Section 12.16., shall
hereafter be repealed or cease to be in force, such law shall not thereafter be
deemed to preclude the application of this Section 12.17. To the extent
permitted by Applicable Laws, Trustor expressly waives and relinquishes any and
all rights and remedies which Trustor may have or be able to assert by reason of
the laws of the State of Nevada pertaining to the rights and remedies of
sureties.
SECTION 12.17. CHARGES FOR STATEMENTS. Trustor agrees to pay
Beneficiary's customary charge, to the maximum amount permitted by Applicable
Laws, for any statement regarding the Secured Obligations requested by Trustor
or in its behalf.
SECTION 12.18. COMPLETE AGREEMENT. This Deed of Trust, together
with the exhibits and schedules hereto, and the other Security Documents, is
intended by the parties as a final expression of their agreement regarding the
subject matter hereof and is intended as a complete and exclusive statement of
the terms and conditions of such agreement.
SECTION 12.19. PAYMENTS SET ASIDE. Notwithstanding anything to
the contrary herein contained, this Deed of Trust, the Secured Obligations and
the Lien and Security Interest of this Deed of Trust shall continue to be
effective or be reinstated, as the case may be, if at any time any payment, or
any part thereof, of any or all of the Secured Obligations is rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to
be restored or returned by Beneficiary in connection with any bankruptcy,
reorganization or similar proceeding involving Trustor, any other party liable
with respect to the Secured Obligations or otherwise, if the proceeds of the
Trust Estate are required to be returned by Beneficiary under any such
circumstances, or if Beneficiary reasonably elects to return any such payment or
proceeds or any part thereof in its discretion, all as though such payment had
not been made or such proceeds not been received. Without limiting the
generality of the foregoing, if prior to any such rescission, invalidation,
declaration, restoration or return, this Deed of Trust shall have been
terminated, released and/or reconveyed and the Lien and Security Interest or any
of the Trust Estate shall have been released or terminated in connection with
such termination, release and/or reconveyance, this Deed of Trust and the Lien
and Security Interest and such portion of the Trust Estate shall be reinstated
in full force and effect, and such prior termination, release and/or
reconveyance shall not diminish, discharge or otherwise affect
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the obligations of Trustor in respect of the amount of the affected payment or
application of proceeds, the Lien, the Security Interest or such portion of the
Trust Estate.
SECTION 12.20. SUBSTITUTION. Beneficiary may at any time, without
giving notice to Trustor or the original or successor Trustee, and without
regard to the willingness or inability of any original or successor Trustee to
execute this trust, appoint another Person or succession of Persons to act as
Trustee, and such appointee in the execution of this trust shall have all the
powers vested in and obligations imposed upon Trustee. Should Beneficiary be a
corporation or unincorporated association, then any officer thereof may make
such appointment.
SECTION 12.21. CHOICE OF FORUM.
12.21.1. Subject to Section 12.21.2.and Section 12.21.3., all
actions or proceedings arising in connection with this Deed of Trust shall be
tried and litigated in state or Federal courts located in the County of Xxxxx,
State of Nevada, unless such actions or proceedings are required to be brought
in another court to obtain subject matter jurisdiction over the matter in
controversy. TRUSTOR WAIVES ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF
FORUM NON CONVENIENS, TO ASSERT THAT IT IS NOT SUBJECT TO THE JURISDICTION OF
SUCH COURTS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN
ACCORDANCE WITH THIS SECTION 12.21.1.
12.21.2. Nothing contained in this Section shall preclude
Beneficiary from bringing any action or proceeding arising out of or relating to
this Deed of Trust in any court not referred to in Section 12.21.1. SERVICE OF
PROCESS, SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST TRUSTOR, MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS
ADDRESS INDICATED IN SECTION 12.8 HEREOF.
12.21.3. Notwithstanding Section 12.21.1. hereof, in the sole and
absolute discretion of Beneficiary, all actions or proceedings relating to the
Collateral referred to in Article 9 hereof, other than the Fixtures, which are
the subject of the Security and Pledge Agreement shall be governed by and
construed in accordance with the laws of the state of New York, as applied to
contracts made and performed within the state of New York. Trustor hereby
irrevocably submits to the jurisdiction of any New York state court sitting in
the Borough of Manhattan in the City of New York or any federal court sitting in
the Borough of Manhattan in the City of New York in respect of any suit, action
or proceeding arising out of or relating to the subject of the Security and
Pledge Agreement, and irrevocably accepts for itself and in respect of its
property, generally and unconditionally, jurisdiction of the aforesaid courts.
Trustor irrevocably waives, to the fullest extent it may effectively do so under
Applicable Law, trial by jury and any objection that it may now or hereafter
have to the laying of the venue of any such
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suit, action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Trustor irrevocably consents, to the fullest extent it may
effectively do so under Applicable Law, to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Trustor at its said
address, such service to become effective 30 days after such mailing. Nothing
shall affect the right of Beneficiary to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
Trustor in any other jurisdiction.
SECTION 12.22. REGULATORY MATTERS. Whenever in this Deed of Trust
a right is given to Beneficiary, which right is affected by Applicable Gaming
Laws or the enforcement of which is subject to Applicable Gaming Laws, the
enforcement of any such right shall be subject to Applicable Gaming Laws and
approval, if so required, of the applicable Gaming Authorities.
SECTION 12.23. GUARANTOR WAIVERS. If and to the extent that
Trustor (for the purposes of this Section 12.23, "Guarantor") would be deemed or
construed to be a guarantor or surety under applicable law with respect to its
obligations hereunder, Guarantor hereby agrees as follows:
12.23.1. Guarantor expressly agrees that until each and every
term, covenant and condition of this Deed of Trust is fully performed, Guarantor
shall not be released by any act or event which, except for this provision of
this Deed of Trust might be deemed a legal or equitable discharge or exoneration
of a surety, or because of any waiver, extension, modification, forbearance or
delay or other act or omission of Beneficiary or its failure to proceed
promptly or otherwise as against Fitzgeralds or any other Guarantor, as the case
may be (individually and collectively, in its or their capacity as the entity or
entities the obligations of which are guaranteed hereunder by Guarantor, the
"Principal") or Guarantor, or because of any action taken or omitted or
circumstance which might vary the risk or affect the rights or remedies of
Guarantor as against the Principal, or because of any further dealings between
the Principal and Beneficiary, whether relating to this Deed of Trust or
otherwise. Guarantor hereby expressly waives and surrenders any defense to
Guarantor's liability under this Deed of Trust based upon any of the foregoing
acts, omissions, things, agreements, waivers or any of them. It is the purpose
and intent of this Deed of Trust that the obligations of Guarantor under it
shall be absolute and unconditional under any and all circumstances, subject to
and in accordance with the terms and conditions of this Deed of Trust.
12.23.2. Without in any way limiting the provisions of Section
12.23.1, to the extent provided under NRS Section 40.495, Guarantor waives the
applicable provisions of NRS Section 40.430 and further Guarantor waives:
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12.23.2.1. all statutes of limitations as a defense to any
action or proceeding brought against Guarantor by Beneficiary, to the fullest
extent permitted by law;
12.23.2.2. any right it may have to require Beneficiary to
proceed against the Principal or pursue any other remedy in Beneficiary's power
to pursue, it being acknowledged and agreed that the obligations of Guarantor
hereunder are independent of the obligations of the Principal hereunder, and
Beneficiary shall not be required to make any demand upon, exercise any right to
declare a default by, or proceed against, the Principal prior to proceeding
against Guarantor to the full extent of Guarantor's obligations hereunder;
12.23.2.3. any defense based on any legal disability of
the Principal and any discharge, release or limitation of the liability of the
Principal to Beneficiary, whether consensual or arising by operation of law or
any bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause, or any claim that Guarantor's obligations
exceed or are more burdensome than those of the Principal;
12.23.2.4. all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance of this Deed of Trust and of the existence, creation, or
incurring of new or additional indebtedness, and demands and notices of every
kind;
12.23.2.5. any defense based on or arising out of any
defense that the Principal may have to the payment or performance of any
obligation set forth in this Deed of Trust; and
12.23.2.6. until all obligations under this Deed of Trust
have been paid and performed in full, all rights of subrogation and all rights
to enforce any remedy that Guarantor may have against the Principal, all
regardless of whether Guarantor may have made any payments to Beneficiary.
12.23.3. Guarantor assumes full responsibility for keeping
informed of the financial condition and business operations of the Principal and
all other circumstances affecting the Principal's ability to pay for and
perform its obligations, and agrees that Beneficiary shall have no duty to
disclose to Guarantor any information which Beneficiary may receive about the
Principal's financial condition, business operations, or any other circumstances
bearing on its ability to perform.
12.23.4. Notwithstanding anything to the contrary provided
elsewhere herein, in no event shall Guarantor have any liability under this Deed
of Trust beyond its interest in the portion of the Property that is owned by
Guarantor, and in no event shall
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Guarantor's obligations hereunder be enforced against any property of Guarantor
other than its interest in such portion of the Property.
SECTION 12.24. WAIVER OF TRIAL BY JURY. TRUSTOR AND BENEFICIARY
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS DEED OF TRUST OR ANY
OTHER SECURITY DOCUMENT OR ANY OTHER ACTION ARISING OUT OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION
OR ACTIONS.
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IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be
executed as of the day and year first above written.
FITZGERALDS RENO, INC.,
a Nevada corporation
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
00
XXXXX XX XXXXXX
XXXXXX XX XXXXX
Xx __________, 1997, before me, Xxxxxx X. Xxxxx, Notary Public, personally
appeared Xxxxxx X. Xxxxxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity on behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature /s/ XXXXXX X. XXXXX (Seal)
-------------------
----------------------------------------------
NOTARY PUBLIC-STATE OF NEVADA
COUNTY OF XXXXX
[SEAL] XXXXXX X. XXXXX
No. 00-0000-0 My Appointment Expires
March 18, 2000
----------------------------------------------
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SCHEDULE 1.1
INDENTURE DEFINITIONS
1. Guarantors
2. Security Documents
3. Gaming Authority
4. Gaming License
5. Liens
6. Persons
7. Permitted Liens
8. Excluded Assets
9. Intercreditor Agreement
10. Non-Recourse Indebtedness
11. Purchase Money Obligations
12. Capital Lease Obligations
13. Collateral
14. Asset Sale
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SCHEDULE 12.8.
ADDRESSES
DEBTOR:
Fitzgeralds Reno, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
SECURED PARTY:
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
TRUSTEE:
Nevada Title Company
0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
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DEBTOR: FITZGERALDS RENO, INC., a Nevada corporation
EXHIBIT A
LEGAL DESCRIPTION OF LAND
Parcel 1:
--------
LOTS OF TWENTY-EIGHT (28) AND TWENTY-NINE (29) AND THE SOUTH HALF (S 1/2) OF
LOT THIRTY (30) IN BLOCK THIRTY (30) OF XXXXX'X LAS VEGAS TOWNSITE, AS SHOWN BY
MAP THEREOF ON FILE IN BOOK 1 OF PLATS, PAGE 37, IN THE OFFICE OF THE COUNTY
RECORDER OF XXXXX COUNTY, NEVADA.
Parcel 2:
--------
LOTS THIRTY-ONE (31) AND THIRTY-TWO (32) AND NORTH HALF (N 1/2) OF LOT THIRTY
(30) IN BLOCK 30 OF XXXXX'X LAS VEGAS TOWNSITE, SHOWN BY MAP THEREOF ON FILE IN
BOOK 1 OF PLATS, PAGE 37 IN THE OFFICE OF THE COUNTY RECORDER OF XXXXX COUNTY,
NEVADA.
