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EXHIBIT 10.12
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ LIMITED LIABILITY COMPANY, a Colorado limited
liability company,
as Trustor
THE PUBLIC TRUSTEE OF THE COUNTY OF ▇▇▇▇▇▇, COLORADO
as Trustee
FOOTHILL CAPITAL CORPORATION,
as Beneficiary
Dated as of October 29, 1998
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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 29th day of
October, 1998, by ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Limited Liability Company, a Colorado limited
liability company ("Trustor"), whose principal place of business is located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in favor of The Public Trustee of
the County of ▇▇▇▇▇▇, Colorado ("Trustee"), for the benefit of Foothill Capital
Corporation, a California corporation ("Beneficiary"), whose principal place of
business is located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
THE MAXIMUM AMOUNT OF PRINCIPAL TO BE SECURED HEREBY IS $15,000,000.00 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
$15,000,000.00.
R E C I T A L S:
A. Pursuant to that certain Loan and Security Agreement dated as of
October 29, 1998 (as supplemented and otherwise amended from time to time, the
"Loan Agreement"), by and between Fitzgeralds Gaming Corporation ("Fitzgeralds")
and Beneficiary, Beneficiary agreed to loan to Fitzgeralds up to the aggregate
principal amount of $15,000,000.00. Unless the context other requires, all
capitalized terms used and not otherwise defined herein shall have the meanings
ascribed thereto in the Loan Agreement.
B. Pursuant to a Guarantee required pursuant to Section 3 of the Loan
Agreement (as amended from time to time, the "Subsidiary Guarantee"), the
Trustor, among others, has guaranteed the obligations of Fitzgeralds under the
Loan Agreement and the other Loan Documents to which Fitzgeralds is a party.
C. Pursuant to the Loan Agreement, 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 Colorado ("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 ▇▇▇▇▇▇, State of Colorado, 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, 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
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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 remain, apply, use, draw upon, pursue,
enforce or realize upon any guaranty thereof, to terminate, modify, or amend any
such agreement; to obtain possession of, use, or occupy, any of the real or
personal property subject to any such agreement, and to enforce or exercise,
whether at law or in equity or by any other means, all provisions of any such
agreement and all obligations of the tenants thereunder based upon (i) any
breach by such tenant thereunder (including any claim that Trustor may have by
reason of a termination, rejection, or disaffirmance of such agreement pursuant
to any Bankruptcy Law), and (ii) the use and occupancy of the premises demised,
whether or not pursuant to the applicable agreement (including any claim for use
and occupancy arising under landlord-tenant law of the State of Colorado or any
Bankruptcy Law).
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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
[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.
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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, well rights, well permits,
shares in ditch companies, water permits and other rights to the use of water
that are now or that may be hereinafter used in connection with the said
Property, or any part thereof, or any improvements or appurtenances thereto.
GRANTING CLAUSE TWELVE
[Minerals, etc.]
TOGETHER WITH, all oil and gas and other mineral rights, if any, in or
pertaining to the Land and all royalty, leasehold and other rights of Trustor
pertaining thereto.
GRANTING CLAUSE THIRTEEN
[Accessions, etc.]
TOGETHER WITH, all extensions, improvements, betterments, renewals,
substitutes for and replacements of, and all additions, accessions, and
appurtenances to, any of the foregoing that Trustor may subsequently acquire,
and all conversions of any of the foregoing. Trustor agrees that all property
hereafter acquired by Trustor and required by the Loan Agreement, this Deed of
Trust or any other Loan Document to be subject to the Lien and/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 may hereafter be referred to as the "Trust Estate."
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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 referenced in the Loan
Agreement or in the Subsidiary Guarantee, 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 Loan Document, including for reimbursement off amounts permitted to be
advanced or expended by Beneficiary (i) to satisfy amounts required to be paid
by Trustor under this Deed of Trust or any other Loan Document, together with
interest thereon to the extent provided, or (ii) to protect the Trust Estate,
together with interest thereon to the extent provided; and
C. all future advances pursuant to the Loan Agreement or any other of
the Loan Documents.
in each case whether due or not due, direct or indirect, joint and/or several,,
absolute or contingent, voluntary or involuntary, liquidated or unliquidated,
determined or undetermined, now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished and later increased,
created in 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
HEREBYCOVENANTS 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 Laws" has the meaning set forth in Section 3.7.
"Beneficiary" has the meaning set forth in the Preamble.
"Chattel Paper" has the meaning set forth in Section 9.1.1.
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"Documents" has the meaning set forth in Section 9.1.9.
"Environmental Damages" means all claims, judgments, damages, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs and expenses of investigation and defense of any claim, whether or not
such is ultimately defeated, and of any settlement or judgment, of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including, without limitation, reasonable attorneys' fees,
charges and disbursements *(including, without limitation, costs of appeal), and
consultants' fees, any of which are actually incurred at any time as a result of
the existence or alleged existence of Hazardous Materials upon, about or beneath
the Property or migrating or threatening to migrate to or from the Property, or
other 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 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" has the meaning set forth in the Loan Agreement.
"Fixtures" has the meaning set forth in Section 9.1.7.
"Gaming Licenses" has the meaning set forth in the Loan Agreement.
"General Intangibles" has the meaning set forth in Section 9.1.10.
"Guarantor Security Agreement" has the meaning set forth in the Loan
Agreement.
"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," "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 Colorado, 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 1351, et seq., or
(iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of
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the United States, any state of the United States, or any political subdivision
thereof ("governmental Authority"), or
(iv) the presence of which on the Property causes or threatens to
pose a hazard to the Property or to the health or safety of Persons on or about
the Property, or
(v) without limitation, which contains gasoline, crude oil, diesel
fuel or other petroleum hydrocarbons in violation of applicable Environmental
Requirements; or
(vi) without limitation, which contains "PCBs" (as hereinafter
defined) or asbestos or urea formaldehyde foam insulation or radon gas.
"Impositions" 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 Tents, including mechanics and other Liens
permitted by the Loan Agreement.
"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 Black
Hawk" 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 licencee 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
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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,
licences, 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 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 Author by 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.
"Loan Documents" has the meaning set forth in the Loan Agreement.
"PCBs" means polychlorinated biphenyles.
"Personalty" means the Intangible Property and the Tangible Property.
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"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.
"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 or 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 contact 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 all trademarks, servicemarks and trade names, 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 Trustor
to use any trademark, servicemark or trade name owned by any other Person.
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"Trust Estate" has the meaning set forth hereinabove.
"UCC" means the Uniform Commercial Code (as amended from time to time,
of the State of California.
Section 1.2 Related Matters.
1.2.1 Terms Used in the UCC. Unless the context clearly otherwise
requires, all lower-case terms used in Section 9 of this Deed of Trust and not
otherwise defined herein that are used or defined in Article 9 (or any
equivalent subpart) of the UCC have the same meanings herein.
1.2.2 Construction. Unless the context of this Deed of Trust clearly
requires otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, and "including" is not
limiting. The words "hereof," "herein," "hereby," "hereunder" and similar terms
in this Deed of Trust refer to this Deed of Trust as a whole (including the
Preamble, the Recitals and all Schedules and Exhibits, but subject to Section
1.2.5) and not to any particular provision of this Deed of Trust. Article,
section, subsection, exhibit, recital, preamble and schedule references in this
Deed of Trust are to this Deed of Trust unless otherwise specified. References
in this Deed of Trust to any agreement, other document or law "as amended" or
"as may be amended from time to time," or to amendments of any document or law,
shall include any amendments, supplements, replacements, renewals or other
modifications.
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 quantitative 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 at
Beneficiary's discretion (whether or not so expressed), except as otherwise
expressly provided herein. No approval or consent of Beneficiary shall be
effective unless the express written approval or consent of Beneficiary is
received by Trustor.
1.2.4 Governing Law. This Deed of Trust shall be governed by, and
construed in accordance with, the laws (other than the rules regarding conflicts
of laws) of the State of California, except the provisions hereof relating to
the creation, perfection, an enforcement of the lien and security interest in
that portion of the Trust Estate which is fixtures shall be governed by the laws
of the State of Colorado.
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.
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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 limited liability
company 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
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, a
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 ▇▇▇▇▇▇ County, Colorado, (b) upon the
filing of financing statements naming Trustor as "Debtor" and
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Beneficiary as "Secured Party" and describing the Trust Estate in the State UCC
Filings Office and in the real estate records of ▇▇▇▇▇▇ County, Colorado, (c)
upon the delivery of any instruments and Chattel Paper which are included in the
Trust Estate to Beneficiary, (d) to the extent subject to U.S. federal law and
not Article 9 of the UCC, upon recordation of the security interests granted in
Patents, 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 or, 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 won 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 Permitted Liens)
and Beneficiary may, subject to Applicable Gaming Laws, at all times peaceably
and quietly enter upon, hold, occupy and enjoy the entire Trust Estate in
accordance with the terms hereof.
Section 3.6 Non-Contravention. Neither the execution, delivery or
performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any government, regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trustor or the Trust Estate, or (iii) result in or require the creation
or imposition of (or the obligation to create or impose) any Lien (other than
the Lien contemplated hereby or by any other Loan Document), upon or with
respect to any of the property or assets now owned or hereafter acquired by
Trustor.
Section 3.7 Contracts. Each material contract which is part of the Trust
Estate (each, a "Contract") (i) is the genuine, legal, valid and binding
obligation of Trustor, (ii) is enforceable against Trustor in accordance with
its terms, (iii) is in full force and effect and is, to Trustor's knowledge, not
subject to any setoffs, defenses, overdue taxes, counterclaims or other claims,
nor have any of the foregoing been asserted or alleged as to any Contract, and
(iv) is, in all material respects, in compliance with all applicable laws,
whether federal, state, local or foreign ("Applicable Laws"). Neither Trustor
nor, to the best knowledge of Trustor, any other
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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
any 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 Black Hawk Casino other than
Excluded Assets.
Section 3.10 Compliance with Laws. To the best knowledge of Trustor,
except as otherwise disclosed in writing to Beneficiary, the Trust Estate and
the proposed and actual use thereof comply in all material respects with all
Applicable Laws, and there is no proceeding pending or, to the best knowledge of
Trustor, threatened before any court, quasi-judicial body, Governmental
Authority or administrative agency relating to the validity of the Loan
Documents or the proposed or actual use of the Trust Estate.
Section 3.11 Property Use; Mechanics' Liens. The Property is not used
principally or primarily for agricultural or grazing purposes. All costs for
labor and material for the removal, construction and renovation of the
Improvements (including, without limitation, any additions and alterations
thereto) have been paid in full or will be paid in accordance with Section 4.15.
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).
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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 under this Deed of Trust until discharged in full, notwithstanding any
actions of partial foreclosure that may be brought hereunder to recover any
amount or amounts expended by Beneficiary on behalf of Trustor in order to cure
any of Trustor's defaults or to satisfy any of Trustor's obligations or
covenants under any agreement relating to the Trust Estate and to which Trustor
is a party or by which the Trust Estate is bound.
Section 4.2 Compliance with Law; Maintenance of Approvals. Except as
expressly permitted by the Loan Agreement, Trustor shall (i) comply with all
requirements of law applicable to the ownership, operation, use and occupancy of
all or any portion of the Trust Estate, whether or not such compliance requires
work or remedial measures that are ordinary or extraordinary, foreseen or
unforseen, 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 Loan Agreement or as Beneficiary may reasonably request.
Section 4.4 Insurance. Trustor, at its sole cost and expense, will
provide, maintain and keep in force the insurance required by Section 6.10 of
the Loan Agreement ("Insurance Policies").
Section 4.5 Waste and Repair. Except as expressly permitted by the Loan
Agreement, Trustor shall at all times cause the Trust Estate to be maintained in
normal working order and condition (reasonable wear and tear excepted). Trustor
shall not suffer any waste of the Property or do or permit to be done thereon
anything not otherwise permitted in the 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 alien 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
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appropriate legal proceedings promptly initiated and conducted in good faith and
with due diligence; provided that (i) neither the Property nor any substantial
part thereof will be in danger of being sold, forfeited, terminated, canceled,
or lost as a result of such contest, and (ii) except in the case of a Lien
junior to the Lien of this Deed of Trust, Trustor shall have posted such bond or
furnished such other security as may be required by law to release such Lien.
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 Lines hereof any property intended by the
terms hereof to be covered thereby and any renewals, additions, substitutions,
replacements or betterments thereto.
Section 4.8 Reimbursement; Waiver of Offsets.
4.8.1 In the event any tax, stamp tax, assessment, water rate, sewer
rate, insurance premium, repair, rent charge, debt, claim, inspection,
Imposition or lien having priority over the lien of this Deed of Trust, or in
the event any other amount required to be paid by Trustor hereunder shall remain
unpaid and Trustor is not contesting such amount pursuant to the terms hereof or
the Loan Agreement, Beneficiary shall have the right to pay such amount and
shall have the right to declare immediately due and payable any such amount so
paid. Any amount so paid by Beneficiary shall bear interest at the default
interest rate specified in the Loan Agreement ("Default Rate") from the date of
payment by Beneficiary, shall constitute an additional Secured Obligation
secured hereby, prior to any right, title or interest in or claim upon the Trust
Estate attaching or accruing subsequent to the Lien of this Deed of Trust, shall
be secured by this Deed of Trust and shall be payable by Trustor to Beneficiary
within thirty (30) days after receipt by Trustor of written demand.
4.8.2 Except as otherwise provided herein, in the Loan Agreement or
in the other Loan Documents, all sums payable by Trustor hereunder or under the
other 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
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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, promptly and in any event within
fifteen days after actual receipt by Trustor thereof, will 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 provided to Beneficiary, within 30 days after demand made
therefor, bills (which shall be receipted from and after the date receipted
bills are obtainable) showing the payment to the extent then due of all taxes,
assessments (including those payable in periodic installments), water rates,
sewer rates, and/or any other Imposition that have become a lien (other than an
inchoate lien) upon the Trust Estate.
Section 4.12 FIRPTA Affidavit. Trustor hereby represents and warrants to
Beneficiary under penalty of perjury:
4.12.1.1 Trustor's U.S. Taxpayer Identification Number is
▇▇-▇▇▇▇▇▇▇,
4.12.1.2 Trustor's business address is set forth in the preamble
hereto, and
4.12.1.3 Trustor is not a "foreign person" within the meaning of
Sections 1445 and 7701 of the Code (i.e., Trustor is not a nonresident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined in the Code and regulations promulgated thereunder).
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Trustor agrees to indemnify, defend, protect and hold Beneficiary and
Beneficiary's agents harmless of, from and against any and all loss, liability,
costs, damages, claims or causes of action including reasonable attorneys' fees,
costs and expenses which may be actually incurred by Beneficiary or
Beneficiary's agents by reason of any failure of any representation or warranty
made by Trustor in this Section 4.12 to be true and correct in all respects,
including, but not limited to, any liability for failure to withhold any amount
required under Code Section 1445 in the event of foreclosure or other transfer
of the Property.
Section 4.13 Preservation of Contractual Rights. Except as otherwise
expressly permitted by the Loan Agreement, Trustor shall, prior to delinquency,
default or forfeiture, perform all obligations and satisfy all material
conditions required on its part to be satisfied to preserve its rights and
privileges under any contract, lease, license, permit or other authorization (a)
under which it holds any Tangible Property, or (b) which constitutes part of the
Intangible Property.
Section 4.14 Tax Service Contract. At any time after the occurrence of
an Event of Default (whether or not such Event of Default is cured), at the
request of Beneficiary and at Trustor's and/or its permitted successor's sole
expense, Beneficiary shall be furnished a tax service contract in form
satisfactory to Beneficiary issued by a tax reporting agency satisfactory to
Beneficiary, which contract shall remain in force until indefeasible discharge
in full of the Secured Obligations.
Section 4.15 Liens. Trustor shall pay and promptly discharge, at
Trustor's cost and expense, all Liens upon the Trust Estate, or any part thereof
or interest therein other than the Permitted Liens. Trustor shall have the right
to contest in good faith the validity of any such Lien, provided Trustor shall
first post such bond or furnish such other security as may be required by law to
release such Lien, and provided further that Trustor shall thereafter diligently
proceed to cause such Lien to be removed and discharged. If Trustor shall fail
to discharge any such Lien, then, in addition to any other right or remedy of
Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same,
either by paying the amount claimed to be due, or by procuring the discharge of
such Lien by depositing in court a bond for the amount claimed or otherwise
giving security for such Lien, or in such manner as is or may be prescribed by
law. Any amount so paid by Beneficiary shall bear interest at the Default Rate
from the date of payment by Beneficiary, shall constitute an additional Secured
Obligation secured hereby, prior to any right, title or interest in or claim
upon the Trust Estate attaching or accruing subsequent to the Lien of this Deed
of Trust, shall be secured by this Deed of Trust and shall be payable by Trustor
to Beneficiary upon demand.
Section 4.16 Inspection. Trustor shall permit Beneficiary, upon 24
hours' prior notice, to enter upon and inspect, during normal business hours,
the Property, and the construction and operation thereof, for such purposes
reasonably deemed necessary by Beneficiary, it being agreed by Trustor that
Beneficiary's good faith belief of the existence of a past or present release or
threatened release of any Hazardous Material into, unto, 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
(i) Beneficiary
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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
the Loan Agreement.
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,
control or management of the Property or any part thereof, as tenant
stockholders or otherwise.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
Section 7.1 Casualties.
7.1.1 Trustor will notify Beneficiary in writing promptly after loss
or damage caused by fire, wind or other casualty to the Property ("Casualty").
7.1.2 Any and all proceeds from Insurance Policies payable to
Beneficiary under the Loan Agreement shall be treated in accordance with Section
6.10 of the Loan Agreement and shall be released to Trustor or applied to the
discharge of the Secured Obligations as set forth in the Loan Agreement.
Section 7.2 Condemnation. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Property or any
portion thereof, or any other proceedings arising out of injury or damage to the
Property, or any portion thereof, Trustor will notify the Beneficiary of the
pendency of such proceedings and the time and place of all settings, hearings,
trials or other proceedings relating thereto. The Beneficiary may participate in
any such proceedings, at Trustor's expense, and Trustor shall from time to time
deliver to the Beneficiary all instruments required by it to permit such
participation. Trustor shall, at its expense, diligently prosecute any such
proceedings and shall consult with the Beneficiary, its attorneys and experts,
and cooperate with them in the carrying on or defense of any such
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proceedings. All proceeds of condemnation awards or proceeds of sale in lieu of
condemnation with respect to the Property and all judgments, decrees and awards
for injury or damage to the Property shall be applied as set forth in Section
6.10 of the Loan Agreement. To the extent permitted by applicable law, Trustor
hereby specifically, unconditionally and irrevocably waives all rights of a
property owner granted under applicable law which provide for allocation of
condemnation proceeds between a property owner and a lienholder.
ARTICLE 8.
REMEDIES OF BENEFICIARY
Section 8.1 Event of Default. Subject to any applicable cure period
provided for in the Loan Agreement or in this Deed of Trust, or if no cure
period has been specified, then thirty (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 the Loan Agreement) shall constitute an Event of Default under this Deed of
Trust.
8.1.2 Failure of Trustor to perform any of the terms, covenants and
conditions in this Deed of Trust or any of the other Loan Documents.
8.1.3 Any statement, representation or warranty given by Trustor to
Trustee or Beneficiary in any of the Loan Documents, in connection with the Loan
Agreement or in any other document provided by Trustor, including this Deed of
Trust, is found to be materially false or misleading.
8.1.4 A material default under, or the institution of foreclosure or
other proceedings to enforce, any Lien or Permitted Lien of any kind upon the
Property or any portion thereof.
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 one or more designees, (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
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connection with any cleanup, remediation or other response action with respect
to Hazardous Materials or (v) ▇▇▇ for or otherwise collect the Rents, issues and
profits therefor 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 or request that Trustee initiate
proceedings to foreclose this Deed of Trust in the manner provided by Applicable
Laws for the foreclosure of mortgages or deeds of trust of real property.
8.2.3 Seek a judgment that Trustor has breached its covenants,
representations and/or warranties set forth in this Deed of Trust, or any other
Loan Document regarding Environmental Requirements and/or Hazardous Materials,
by commencing, maintaining and concluding, and enforcing a judgment arising from
an action for breach of contract, without regard to whether Beneficiary has
commenced foreclosure of 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 becomes or are declared immediately
due and payable pursuant to Section 9 of the Loan Agreement and Trustor fails to
make such payments 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 LOAN 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 REFERENCED
IN THE LOAN AGREEMENT.
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
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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 Loan Agreement.
Section 8.3 Power of Sale. Should Beneficiary elect to foreclose by
exercise of the power of sale herein contained, Beneficiary shall notify Trustee
and shall deposit with Trustee this Deed of Trust and such receipts and evidence
of expenditures made and secured hereby as Trustee may require.
8.3.1 Upon receipt of such notice from Beneficiary, Trustee shall
cause to be recorded, published and delivered to Trustor notices of default and
sale to be given in accordance with the provisions of Applicable Laws. 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
or as Beneficiary may request, 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. After the expiration of the required redemption
periods, 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 and after expiration of the applicable
redemption periods, to the extent permitted by Applicable Laws, shall make
(without any covenant or warranty, express or implied), execute and, after due
payment made, deliver to purchaser or purchasers, or his or their heirs or
assigns, a deed or deeds, or other record or records of interest, as the case
may be, in and to the Property so sold that shall convey to the purchaser all
the title and interest of Trustor in the Property (or the portion thereof sold),
and after deducting all costs, fees and expenses of Trustee and of this Deed of
Trust, including costs of evidence of title in connection with sale, shall apply
the proceeds of sale to payment of (i) all sums expended under the terms hereof,
not then repaid, with accrued interest at the Default Rate and (ii) all other
sums then secured hereby and the remainder, if any, to the Person or Persons
legally entitled thereto.
8.3.3 Trustee may postpone sale of all or any portion of the Trust
Estate by public announcement at such time and place of sale, or as otherwise
permitted by Applicable
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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 or withdrawal of sale and causing the
recording of same. The recordation of such notice of rescission or withdrawal of
sale shall constitute a cancellation of any prior declaration of default and
demand for sale. The exercise by Beneficiary of the right of rescission shall
not constitute a waiver of any default then existing or subsequently occurring,
or impair the right of Beneficiary to execute other declarations of default and
demand for sale, or notices of default and of election to cause the Property to
be sold nor otherwise affect the Loan Documents or this Deed of Trust, or any of
the rights, obligations or remedies of Beneficiary or Trustee hereunder.
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, to
the extent permitted by Applicable Laws, 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 or Certificate of Purchase
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 fifteen (15) days prior written
notice to Trustor and without releasing Trustor from any obligations or defaults
hereunder, Beneficiary or Trustee shall have the right, but not the obligation,
to (i) make payment or otherwise perform such obligations of Trustor upon which
such Event of Default is based in such manner and to such extent as either may
reasonably deem necessary to protect the security hereof, Beneficiary and
Trustee being authorized to enter upon the Property for such purpose, (ii)
appear in and defend any action or proceeding purporting to affect, in any
manner whatsoever, the Secured Obligations, the security hereof or the rights or
powers of Beneficiary or Trustee, (iii) pay, purchase or compromise any
encumbrance, charge or lien (other than Permitted Liens), (iv) advance any and
all costs and expenses reasonably necessary to cure or pay Environmental Damages
or otherwise to comply 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.
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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, ex parte or
otherwise, to any court having jurisdiction to appoint a Receiver or Receivers
of the Property. Any such Receiver or Receivers shall have all the powers and
duties of receivers under Applicable Laws in like or similar cases and all the
powers and duties of Beneficiary in case of entry as provided in this Deed of
Trust, and shall continue as such and exercise all such powers until the date of
confirmation of sale, unless such receivership is sooner terminated.
Section 8.7 Curing of Defaults.
8.7.1 If Trustor shall at any time fail to perform or comply with
any of the terms, covenants and conditions required on Trustor's part to be
performed and complied with under this Deed of Trust or any other Loan Document
relating to the Trust Estate (after the lapse of any cure period provided
therein), then Beneficiary shall have the right, but not the obligation, without
waiving or releasing any of the Secured Obligations, to:
8.7.1.1 make any payments thereunder payable by Trustor and take
out, pay for and maintain any of the insurance policies provided for therein;
and/or
8.7.1.2 after the expiration of any applicable grace period and
subject to Trustor's rights to contest certain obligations specifically granted
hereby, perform any such other acts thereunder on the part of Trustor to be
performed and enter upon the Property and incur reasonable attorneys' fees and
expenses for such purpose.
8.7.2 The making by Beneficiary of such payment out of Beneficiary's
own funds shall not, however, be deemed to cure such default by Trustor, and the
same shall not be so cured unless and until Trustor shall have reimbursed
Beneficiary within the applicable cure period for such payment including
interest at the Default Rate from the date of such expenditure. All sums so paid
and all reasonable costs and expenses actually incurred and paid by Beneficiary
in connection with the performance of any such act, together with interest on
unpaid balances thereof at the Default Rate from the respective dates of
Beneficiary's making of each such payment, shall be secured by the lien of this
Deed of Trust, prior to any right, title or interest in or claim upon the
Property attaching or accruing subsequent to the lien of this Deed of Trust, and
shall be payable by Trustor to Beneficiary within thirty (30) days after receipt
of written demand.
Section 8.8 Remedies Cumulative. All remedies of Beneficiary provided
for herein are cumulative and shall be in addition to any and all other rights
and remedies provided in the other Loan Documents or provided by Applicable Law,
including any banker's lien and right of offset. The exercise of any right or
remedy by Beneficiary hereunder shall not in any way constitute a cure or waiver
of default hereunder or under the Loan Documents, or invalidate any act done
pursuant to any notice of default, or prejudice Beneficiary in the exercise of
any of its rights hereunder or under the Loan Documents unless, in the exercise
of said rights, all Secured Obligations are fully discharged.
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ARTICLE 9.
SECURITY AGREEMENT AND FIXTURE FILING
Section 9.1 Grant of Security Interest. To secure the payment and
performance of the Secured Obligations as and when due, Trustor (as debtor)
hereby grants, conveys, pledges, assigns and transfers to Beneficiary (as
secured party), security interests (collectively, the "Security Interest") in
all right, title, claim, estate and interest in and to all Personalty and
Fixtures, whether now owned and existing or hereafter acquired or arising, and
wherever located, including, without limitation, the following but expressly
excluding in each case any Excluded Assets.
9.1.1 Any and all "chattel paper" as such term is defined in Section
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 or deposit and other writings
that evidence a right to the payment of money by any other Person
("Receivables");
9.1.4 Any and all (a) original copies of all documents, instruments
or other writings evidencing the Receivables, (b) 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) credit information, reports and
memoranda relating thereto (the items in clauses (a) - (c) of this Section
9.1.4) being hereinafter referred to as "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
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Express and Diner's Club), whether arising out of or relating to the sale of
lodging, goods and services by Trustor or otherwise; and
9.1.5.2 of money not listed above and any and all rights, titles,
interests, securities, Liens and guaranties evidencing, securing, guaranteeing
payment of or in any way relating to any Receivables.
9.1.6 "Inventory" as such term is defined in Section 9109(4) of the UCC,
including without limitation and in any event, all goods (whether such goods are
in the possession of Trustor or a lessee, bailee or other Person for sale,
lease, storage, transit, processing, use or otherwise and whether consisting or
whole goods, spare parts, components, supplies, materials or consigned or
returned or repossessed goods) which are held for sale or lease or are to be
furnished (or which have been furnished) under any contract of service or which
are raw materials or work in progress or materials used or consumed in any
Trustor's business ("Inventory").
9.1.7 Any and all "equipment" as such term is defined in Section 9109(2)
of the UCC ("Equipment"), including, without limitation:
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 computers programs related to any of
the above;
9.1.7.2 ships, boats, barges and vessels (whether under construction
or completed) and any and all masts, bowsprits, boilers, engines, sails,
fittings, anchors, cables, chains, riggings, tackle, apparel, capstans, outfits,
gears, appliances, fittings and spare and replacement parts and other
appurtenances, accessories and additions, improvements and replacements thereto,
whether on board or not on board, in or to any ship, boat, barge or vessel;
9.1.7.3 slot machines, electronic gaming devices and related
equipment, crap tables, blackjack tables, roulette tables, baccarat tables, keno
apparatus, cards, dice, gaming chips and plaques, tokens, chip racks, dealing
shoes, dice cups, dice sticks, layouts, paddles, roulette balls and other
supplies and items used in connection with gaming operations; and
9.1.7.4 stones, wood, steel and other materials used or to be used
in the building, construction, repair, renovation, refurbishment or otherwise
with respect to improvements or ships, boats, barges or vessels.
9.1.8 Any and all "fixtures" as such term is defined in Section 9313 of
the UCC, including without limitation, machinery, equipment or appliances for
generating, storing or distributing air, water, heat, electricity, light, fuel
or refrigeration, for ventilating or sanitary
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purposes, elevators, safes, laundry, kitchen and athletic equipment, trade
fixtures, and telephone, television and other communications equipment (the
"Fixtures").
9.1.9 Any and all "documents" as such term is defined in Section
9105(f) of the UCC (the "Documents").
9.1.10 Any and all "general intangibles" as such term is defined in
Section 9106 of the UCC (together with any property listed under Section 9.14
relating thereto, the "General Intangibles"), including, without limitation and
in any event, rights to the following payment of money, Trademark Collateral (as
defined in the Trademark Security Agreement, Copyright Collateral (as defined in
the Copyright Security Agreement) patents, contracts, licenses and franchises
(except, in the case of licenses and franchises if, and for so long as, the
agreement in respect of such license or franchise prohibits by its terms any
assignment or grant of a security interest therein without the consent of the
other party thereto, unless the violation of such prohibition would not give any
other party to such franchise or license the right to terminate its obligations
thereunder), limited and general partnership interests and joint venture
interests, federal income tax refunds, trade names, distributions on
certificated securities (as defined in Section 8102(1)(a) of the UCC, and
uncertificated securities (as defined in Section 8102(1)(b) of the UCC),
computer programs and other computer software, inventions, designs, trade
secrets, goodwill, proprietary rights, customer lists, player tracking systems,
supplier contracts, sale orders, correspondence, advertising materials, payments
due in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of any property, reversionary interests in pension and profit-sharing
plans and reversionary, beneficial and residual interests in trusts, credits
with and other claims against any Person, together with any collateral for any
of the foregoing and the rights under any security agreement granting a security
interest in such collateral.
9.1.11 The Designated Account established and maintained pursuant to
Section 2.9 of the Loan Agreement.
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 ("Pledged Securities"),
(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.
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)
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from time to time received, receivable or otherwise distributed in respect of or
in exchange or substitution for any of the Pledged Securities ("Distributions").
9.1.14 Any and all "instruments" as such term is defined in Section
9105(1)(i) of the UCC ("Instruments").
9.1.15 [Intentionally Omitted].
9.1.16 Any and all contracts between Trustor and one or more
additional parties ("Contracts").
9.1.17 Any and all interest rate or currency protection or hedging
arrangements, including, without limitation, caps, collars, floors, forwards and
any other similar or dissimilar interest rate or currency exchange agreements or
other interest rate or currency hedging arrangements ("Hedging Agreements").
9.1.18 Any and all motor vehicles, tractors, trailers and other like
property, if title thereto is governed by a certificate of title ownership
("Motor Vehicles").
9.1.19 Any and all books, records, computer software, computer
printouts, customer lists, blueprints, technical specifications, manuals, and
similar items which relate to any Personalty or Fixtures other than such items
obtained under license or franchise agreements that prohibit assignment or
disclosure of such items ("Books and Records").
9.1.20 Any and all accessions, appurtenances, components, repairs,
repair parts, spare parts, renewals, improvements, replacements, substitutions
and additions to, of or with respect to any of the foregoing.
9.1.21 Any and all rights, remedies, powers and privileges of
Trustor with respect to any of the foregoing, and
9.1.22 Any and all proceeds and products of any of the foregoing,
whether now held and existing or hereafter acquired or arising, including all
rents, issues, income and profits of or from any of the foregoing (collectively,
the "Proceeds"). "Proceeds" shall include (i) whatever is now or hereafter
received by Trustor upon the sale, exchange, collection, other disposition or
operations 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, however, that "Proceeds" shall not
include Excluded Assets.
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Section 9.2 Remedies, etc. This Deed constitutes a security agreement
with respect to the Personalty, in which Beneficiary is granted a security
interest hereunder, and Beneficiary shall have all of the rights and remedies of
a secured party under the UCC and the other Loan Documents as well as all other
rights and remedies available at law or in equity. Upon the occurrence and
during the continuance of any Event of Default hereunder. Beneficiary shall have
(i) the right to cause any of the Personalty which is personal property to be
sold at any one or more public or private sales as permitted by Applicable Laws
and apply the proceed thereof to the Secured Obligations, (ii) the right to
collect and apply to the Secured Obligations and 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 the Uniform Commercial Code. In connection therewith, the addresses of
Trustor as debtor ("Debtor") and Beneficiary as secured party ("Secured Party")
are set forth on Schedule 12.8. The address of Beneficiary, as the Secured
Party, is also the address from which information concerning the security
interest may be obtained by any interested party.
9.4.1.1 The property subject to this fixture filing is described in
Sections 9.1.7 and 9.1.8.
9.4.1.2 Portions of the property subject to this fixture filing as
identified in Section 9.4.1.1. above are or are to become fixtures related to
the real estate described on Exhibit A to this Deed of Trust.
9.4.1.3 Secured party is Foothill Capital Corporation, a California
corporation.
9.4.1.4 Debtor is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Limited Liability Company, a
Colorado limited liability company.
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9.4.1.5 The record owner or lessee of the Property is ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Limited Liability Company, a Colorado limited liability company.
9.4.2 In the event Trustor shall fail, beyond any applicable notice
and grace periods, to make any payment or perform any covenant related to any
security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within 15 days after notice to Trustor or if Beneficiary's
immediate action is reasonably necessary to protect the lien hereof or its
security for the Secured Obligations, at any time without prior notice to
Trustor, pay the amount secured by such security interest, and the amount so
paid shall be (i) secured by this Deed of Trust and shall be a lien on the
Property enjoying the same priorities vis-a-vis the estates and interests
encumbered hereby as this Deed of Trust, (ii) added to the amount of the Secured
Obligations, and (iii) payable within 30 days after receipt of written demand
with interest at the Default Rate from the time of such payment, or Beneficiary
shall have the privilege of acquiring by assignment from the holder of such
security interest any and all contract rights, accounts receivable, chattel
paper, negotiable or non-negotiable instruments and other evidence of Trustor's
indebtedness secured by such fixtures, and, upon acquiring such interest by
assignment, shall have the right to enforce the security interest as assignee
thereof, in accordance with the terms and provisions of the UCC, as amended or
supplemented, and in accordance with other Applicable Laws.
ARTICLE 10.
ASSIGNMENT OF RENTS
Section 10.1 Assignment of Rents. Subject to Section 10.2, and to
Applicable Gaming Laws, Trustor hereby absolutely and unconditionally assigns
and transfer 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 ▇▇▇, 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 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, 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 such Receiver be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise responsible or liable in any manner with
respect to the Property or the use, occupancy, enjoyment or operation of all or
any portion thereof.
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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 on its business,
operations or properties. Trustor further hereby represents and warrants as of
the date hereof as follows.
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.
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
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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 intended against any of them under any Environmental
Law, and
11.1.6 There are no events, activities, practices, incidents,
actions, 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 of the
commission by Trustor, its agents, employees, contractors or invitees, or by any
other Person of a material violation of any environmental Requirements upon,
within or beneath the Property or any portion thereof.
11.2.3 Trustor shall not dispose of, discharge or release or cause
or permit the disposal, discharge or release of any material amount of Hazardous
Materials from the Property into any Public Waters in material violation of any
Environmental Requirements.
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
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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 substantially 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 ▇▇▇▇▇ and test
holes to industrial standards in compliance with Applicable Laws and
regulations, remove all associated equipment, and restore the Property to the
extent reasonably possible, which shall include, without limitation, the repair
of any surface damage, including paving caused by such investigation or
remediation hereunder.
11.2.6 If Trustor shall become aware of or receive notice or other
communication concerning any actual, alleged, suspected or threatened violation
of Environmental Requirements, or liability of Trustor for Environmental Damages
in connection with the Property or past or present activities of any Person
thereon, including, but not limited to, notice or other communication concerning
any actual or threatened investigation, inquiry, lawsuit, claim, citation,
directive, summons, proceedings, complaint, notice, order, writ or 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
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and all Environmental Damages arising from the discharge, disposal or release of
Hazardous Materials from the Property into the Public Waters or from the
presence of Hazardous Materials upon, about or beneath the Property or migrating
to or from the Property, or arising in any manner whatsoever out of the
violation of any Environmental Requirements pertaining to the Property and the
activities thereon, whether foreseeable or unforeseeable, and regardless of when
such Environmental Damages occurred, except to the extent directly caused by
conduct (other than inaction) on the part of such Indemnitee with respect to the
Property or any such Indemnitee's grossly negligent or willful inaction or other
conduct. The indemnity obligations of Trustor contained in this Section 11.2.7
shall survive the termination , release and/or reconveyance of this Deed of
Trust and the discharge of Trustor's other obligations hereunder.
11.2.8 Except for the last sentence of Section 4.5, and except for
Sections 4.6, 4.7 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 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 Loan
Agreement, (iii) the custody, preservation or sale of, collection from, or other
realization upon, any of the Trust Estate, (iv) the exercise or enforcement of
any of the rights, powers or remedies of Beneficiary under this Deed of Trust or
under Applicable Laws (including attorneys' fees and expenses incurred by
Beneficiary in connection with the operation, maintenance or foreclosure of the
Lien of this Deed of Trust) or any bankruptcy proceeding or (v) the failure by
Trustor to perform or observe any of the provisions hereof. All such amounts and
all other amounts payable hereunder shall be payable on demand, together with
interest at the Default Rate.
Section 12.2 Indemnity. Trustor hereby agrees to indemnify and hold
harmless the Indemnitees against (A) any and all transfer taxes, documentary
taxes, assessments or charges made by an Governmental Authority by reason of the
execution and delivery of this Deed of Trust and the other Loan Documents, and
(B) any and all claims, actions, liabilities, costs and expenses of any kind or
nature whatsoever (including fees and disbursements of counsel) that may be
imposed on, incurred by, or asserted against any of them, in any way relating to
or arising out of this Deed of Trust or any action taken or omitted by them
hereunder, except to the extend that they resulted from the gross negligence or
willful misconduct of any such Indemnitee.
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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 an 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 or any rights and remedies that may be available to Beneficiary under
Applicable Laws, the other Loan Documents or otherwise. No failure or delay on
the part of Beneficiary in the exercise of any power, right or remedy under this
Deed of Trust shall impair such power, right or remedy or shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude other or further exercise of such or any other power,
right or remedy.
12.4.1 Successors and Assigns. This Agreement shall be binding upon
and, subject to the next sentence, inure to the benefit of Trustor and
beneficiary and their respective successors and assigns. Trustor shall not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of Beneficiary. The benefits of this Deed of Trust shall pass
automatically with any assignment of the Secured Obligations for 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 the Loan Agreement, provided however that no Event of
Default shall be deemed to have occurred (i) if Trustor, within thirty (30) days
after the passage of such law, shall assume the payment of any tax or other
charge so imposed upon Beneficiary for the period remaining until discharge in
full of the Secured Obligations, provided however that such assumption is
permitted by Applicable Laws, (ii) if the adverse effect upon Beneficiary of
such tax or other charge is not material, or (iii) if and so long as Trustor, at
its expense, shall contest the amount or validity or application of any such tax
or other charge by appropriate legal proceedings promptly initiated and
conducted in good faith and with due diligence, provided that (A) neither the
Property nor any substantial part thereof will be in danger of being sold,
forfeited, terminated, canceled, or lost as a result of such contest and (B)
except in the case of a tax or charge junior to the Lien of this Deed of Trust,
Trustor shall have posted such bond or furnished such other security as may be
required by law to release such tax or charge.
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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.
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
prepared 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 12 of the Loan Agreement.
Section 12.9 References to Foreclosure. References hereto to
"foreclosure" and related phrases shall be deemed references to the appropriate
procedure in connection with Trustee's private power of sale, any judicial
foreclosure proceeding, and any deed given in lieu of any such Trustee's sale or
judicial foreclosure.
Section 12.10 Joinder of Foreclosure. Should Beneficiary hold any other
or additional security for the payment and performance of any Secured
Obligation, its sale or foreclosure, upon any default in such payment or
performance, in the sole discretion of Beneficiary, may be prior to, subsequent
to, or joined or otherwise contemporaneous with any sale or foreclosure
hereunder. Except as otherwise provided in the Loan Agreement, in addition to
the rights herein specifically conferred, Beneficiary, at any time and from time
to time, may exercise any right or remedy now or hereafter given by law to
beneficiaries under deeds of trust generally, or to the holders of any
obligations of the kind hereby secured.
Section 12.11 Rights and Secured Obligations of Beneficiary and Trustee.
At any time or from time to time, without liability therefor and without notice,
and without releasing or otherwise affecting the liability of any Person for
payment of any Secured Obligations, Beneficiary at its sole discretion and only
in writing may subordinate the Liens or either of them, or charge hereof to the
extent not prohibited by the Loan Agreement. Beneficiary and Trustee shall,
however, promptly upon Trustor's request from time to time, join in the
following actions (including the execution and delivery of documents) as trustor
determines are reasonably necessary for the development, use and operation of
the Trust Estate; (i) the making of any map or plat of the Property; (ii) the
granting, creating, amending and modifying of any customary easements,
covenants, conditions and restrictions with respect to the Property and (iii)
the application for and prosecution of any development, building, use and
similar permits and land use and utility approvals and installations regarding
the Property; provided however that Beneficiary and Trustee shall not be
required to join in or take any such action (a) while an Event of Default
exists, (b) to the extent prohibited by the Loan Agreement or by Applicable
Laws.
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Any such request shall be accompanied by an Officers' Certificate (as defined in
the Loan Agreement). Upon written request of Beneficiary and surrender of this
Deed of Trust to Trustee for cancellation, and upon payment to Trustee of its
reasonable fees and expenses actually incurred, Trustee shall cancel, release
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 ▇▇▇▇▇▇ County,
Colorado of a unilateral declaration to the 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 waving any right to exhaust all
or any other security, including the security hereunder, and without waiving any
breach or Default or any right or power whether exercised hereunder or contained
herein or in any such other security.
Section 12.15 Suits to Protect Property. Trustor covenants and agrees to
appear in and defend any action or proceeding the consequence of which, if
successful, would be that the Liens, or either of them, of this Deed of Trust
would not satisfy the requirements as to extent, perfection or priority set
forth in the Loan Agreement, and to pay all reasonable costs and expenses
actually incurred by Trustee and Beneficiary, including cost of evidence of
title and attorneys' fees in a reasonable sum, in any such action or proceeding
in which Beneficiary and/or Trustee may appear or be made a party.
Section 12.16 Trustor Waiver of Rights. Trustor waives the benefit of
all laws now existing or that hereafter may be enacted providing for (i) any
appraisement before sale of any portion of the Trust Estate, and (ii) the
benefit of all laws that may be hereafter enacted in any way extending the time
for the enforcement of the Secured Obligations or creating or extending a period
of redemption from any sale made in collecting said debt. To the full extent
Trustor may do so, Trustor agrees that Trustor will not at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, valuation, stay, extension or redemption,
and Trustor, for Trustor, Trustor's heirs, devisees, representatives, successors
and assigns, and for any and all Persons ever claiming any interest in the Trust
Estate, to the extent permitted by law, hereby waives and releases all rights of
redemption, valuation,
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appraisement, stay of execution, and marshaling in the event of foreclosure of
the liens hereby created. If any law referred to in this Section 12.16 and now
in force, of which Trustor, Trustor's heirs, devisees, representatives,
successors and assigns or other Person might take advantage despite this Section
12.16, shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to preclude the application of this Section 12.17. 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 Colorado pertaining to the rights and
remedies of sureties.
Section 12.17 Charges for Statements. Trustor agrees to pay
Beneficiary's customary charge, to the maximum amount permitted by Applicable
Laws, for any statement regarding the Secured Obligations requested by Trustor
or in its behalf.
Section 12.18 Complete Agreement. This Deed of Trust, together with the
exhibits and schedules hereto, and the other Loan Documents, is intended by the
parties as a final expression of their agreement regarding the subject matter
hereof and is intended as a complete and exclusive statement of the terms and
conditions of such agreement.
Section 12.19 Payments Set Aside. Notwithstanding anything to the
contrary herein contained, this Deed of Trust, the Secured Obligations and the
Lien and Security Interest of this Deed of Trust shall continue to be effective
or be reinstated, as the case may be, if at any time any payment, or any part
thereof, of any or all of the Secured Obligations is rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be restored
or returned by Beneficiary in connection with any bankruptcy, reorganization or
similar proceeding involving Trustor, any other party liable with respect to the
Secured Obligations or otherwise, if the proceeds of the Trust Estate are
required to be returned by Beneficiary under any such circumstances, or if
Beneficiary reasonably elects to return any such payment or proceeds or any part
thereof in its discretion, all as though such payment had not been made or such
proceeds not been received. Without limiting the generality of the foregoing, if
prior to any such rescission, invalidation, declaration, restoration or return,
this Deed of Trust shall have been terminated, released and/or reconveyed and
the Lien and Security Interest or any of the Trust Estate shall have been
released or terminated in connection with such termination, release and/or
reconveyance, this Deed of Trust and the Lien and Security Interest and such
portion of the Trust Estate shall be reinstated in full force and effect, and
such prior termination, release and/or reconveyance shall not diminish,
discharge or otherwise affect the obligations of Trustor in respect of the
amount of the affected payment of application of proceeds, the Lien, the
Security Interest or such portion of the Trust Estate.
Section 12.20 Intentionally Deleted.
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 which have jurisdiction over the County of
▇▇▇▇▇▇, State of Colorado, unless such actions or proceedings are required to be
brought in another court to obtain subject matter
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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 Fixtures, shall be tried
and litigated in any California state court sitting in the County of Los
Angeles, State of California or any federal court sitting in the County of Los
Angeles, State of California. Trustor hereby irrevocably submits to the
jurisdiction of such courts to the extent any proceeding is brought in
accordance with this Section 12.21.3. Trustor irrevocably waives, to the fullest
extent it may effectively do so under the Applicable Law, trial by jury and any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court and any claim that any
such suit, action or proceeding brought in any such court has been brought in
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 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 terms,
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
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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 defenses. 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 limited the provisions of Section
12.23.1, Guarantor waives
12.23.2.1 all statutes of limitations as a defense to any action
or proceeding brought against Guarantor by Beneficiary, to the fullest extent
permitted by law.
12.23.2.2 any right it may have to require Beneficiary to
proceed against the Principal or pursue any other remedy in Beneficiary's power
to pursue, it being acknowledged and agreed that the obligations of Guarantor
hereunder 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.
12.23.2.7 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
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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.
12.23.2.8 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 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
LOAN DOCUMENT OR ANY OTHER ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
[Signature page to follow.]
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IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be executed
as of the day and year first above written.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ LIMITED
LIABILITY COMPANY,
a Colorado limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President/CFO
▇-▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
)
COUNTY OF LOS ANGELES )
On October 29, 1998, before me, ▇▇▇▇▇▇▇▇ ▇▇▇▇, Notary Public, personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 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.
My Commission Expires: June 14, 2000
[SEAL] ▇▇▇▇▇▇▇▇ ▇▇▇▇
Commission #1100940
Notary Public--California /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Los Angeles County -------------------------
My Comm. Expires Jun 14, 2000 Notary Public
46
ADDRESSES
Debtor:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ LIMITED LIABILITY COMPANY,
a Colorado limited liability company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Secured Party:
FOOTHILL CAPITAL CORPORATION,
a California corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Trustee:
The Public Trustee of the County of ▇▇▇▇▇▇, Colorado
47
EXHIBIT A
LEGAL DESCRIPTION
See attached
48
The land referred to in this commitment is described as follows:
THAT PART OF LOTS 4 AND 11, BLOCK 35
▇▇▇▇ ▇, ▇, ▇, ▇, ▇, ▇▇▇ ▇▇, ▇▇▇▇▇ 35
THAT PART OF ▇▇▇▇ ▇, ▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇ AND 3, BLOCK 36, AND
THAT PART OF ▇▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ 34 AND
THAT PART OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ OF ▇▇▇▇▇▇, STATE OF COLORADO,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ IS ESTABLISHED BY THE INTERSECTION OF THE SOUTHEASTERLY LINE OF
▇▇▇▇▇▇▇ STREET WITH THE SOUTHWESTERLY LINE OF MAIN STREET AS SAID STREET LINES
WERE ESTABLISHED BY BOUNDARY LINE AGREEMENTS RECORDED IN BOOK 540 AT PAGE 383;
THENCE S47 DEGREES 37'00"E ALONG SAID SOUTHWESTERLY LINE OF MAIN STREET A
DISTANCE OF 199.59 FEET TO THE NORTHEASTERLY CORNER OF TRACT CONVEYED IN SPECIAL
WARRANTY DEED RECORDED IN BOOK 560 AT PAGE 446
THENCE S41 DEGREES 31'30"W ALONG THE SOUTHEASTERLY LINE SAID TRACT A DISTANCE OF
101.67 FEET TO THE MOST SOUTHERLY CORNER SAID TRACT, WHICH POINT IS ON THE LINE
BETWEEN SAID BLOCK 35 AND SAID BLOCK 36;
THENCE S47 DEGREES 37'00"E ALONG THE NORTHERLY LINE SAID BLOCK 36 A DISTANCE OF
61.55 FEET TO AN ANGLE POINT IN THE NORTHERLY LINE OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇;
THENCE S60 DEGREES 00'00"E ALONG THE NORTHERLY LINES OF ▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇, ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇ DISTANCE OF 69.05 FEET TO A POINT ON A LINE ESTABLISHED BY BOUNDARY
LINE AGREEMENT RECORDED IN BOOK 603 PAGE 201;
THENCE S30 DEGREES 59'20"W ALONG THE LINE ESTABLISHED BY SAID BOUNDARY LINE
AGREEMENT, A DISTANCE OF 75.38 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF
BABTAIL STREET AS DESCRIBED IN BOOK 586 AT PAGE ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ IS ON A CURVE
CONCAVE TO THE SOUTH;
THENCE WESTERLY ALONG SAID CURVE, CENTRAL ANGLE = 4 DEGREES 46'06", RADIUS =
142.00 FEET, AND ARC LENGTH OF 11.82 FEET TO A POINT OF TANGENCY, THE CHORD OF
SAID ARC BEARS N56 DEGREES 50'06"W, A DISTANCE OF 11.81 FEET;
THENCE N59 DEGREES 13'09"W ALONG THE SIDE RIGHT OF WAY LINE A DISTANCE OF 178.24
FEET;
THENCE N59 DEGREES 01'26"W ALONG SAID RIGHT OF WAY LINE A DISTANCE OF 44.48 FEET
TO A POINT OF CURVATURE;
THENCE ALONG SAID RIGHT OF WAY LINE AND ALONG THE ARC OF A CURVE TO THE LEFT,
CENTRAL ANGLE = 30 DEGREES 58'34", RADIUS = 140.00 FEET, AN ARC LENGTH OF 75.69
FEET TO A POINT OF TANGENCY, THE CHORD OF SAID ARC BEARS N74 DEGREES 30'43"W A
DISTANCE OF 74.77 FEET;
THENCE CONTINUING ALONG SAID RIGHT OF WAY LINE, N90 DEGREES 00'00"W A DISTANCE
OF 72.88 GEET, MORE OR LESS, TO A POINT ON THE WESTERLY LINE OF LOT 10, BLOCK 34
THENCE N20 DEGREES 00'00"W ALONG SAID WEST LINE A DISTANCE OF 34.92 FEET TO THE
NORTHWEST CORNER OF SAID LOT 10;
THENCE N66 DEGREES 41'00"E ALONG THE NORTH LINE SAID BLOCK 34 A DISTANCE OF
102.69 FEET TO AN ANGLE POINT IN SAID NORTH LINE;
THENCE CONTINUING ALONG SAID NORTH LINE, N74 DEGREES 11'00"E, A DISTANCE OF
66.60 FEET TO A POINT ON THE SOUTHERLY LINE OF ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ IS
THE MOST SOUTHERLY CORNER OF TRACT DESCRIBED IN QUIET TITLE ACTION RECORDED IN
BOOK 551 AT PAGE 1;
THENCE N15 DEGREES 49'00"W ALONG THE WESTERLY LINE SAID TRACT A DISTANCE OF
103.08 FEET TO THE MOST WESTERLY CORNER SAID TRACT, WHICH POINT IS ON THE
SOUTHEASTERLY LINE OF ▇▇▇▇▇▇▇ STREET AS DEFINED IN BOUNDARY LINE AGREEMENT
DESCRIBED IN BOOK 540 AT PAGE 383;
THENCE N76 DEGREES 11'39"E ALONG SAID SOUTHEASTERLY LINE ▇▇▇▇▇▇▇ STREET AS
DEFINED IN SAID BOUNDARY LINE AGREEMENT AND AS DESCRIBED IN QUIET TITLE ACTION
RECORDED IN BOOK 551 AT PAGE 1, A DISTANCE OF 83.68 FEET, MORE OR LESS TO THE
POINT OF BEGINNING.
COUNTY OF ▇▇▇▇▇▇, STATE OF COLORADO.