1
EXHIBIT 10.13
Prepared By and Upon
Recordation Return To:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH FINANCING STATEMENT
AND ASSIGNMENT OF RENTS
FITZGERALDS MISSISSIPPI, Inc.,
as Trustor
COMMONWEALTH LAND TITLE COMPANY
as Trustee
FOOTHILL CAPITAL CORPORATION,
as Beneficiary
Dated as of October 29, 1998
SOME OF THE PERSONAL PROPERTY CONSTITUTING A PORTION OF THE
MORTGAGED PROPERTY IS OR IS TO BE AFFIXED TO THE PROPERTIES
DESCRIBED IN EXHIBIT A HERETO
THIS FINANCING STATEMENT IS A FIXTURE FILING, AND IS TO BE FILED FOR RECORD,
AMONG OTHER PLACES, IN THE REAL ESTATE RECORDS
THIS DEED OF TRUST COVERS AFTER-ACQUIRED PROPERTY
2
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 Fitzgeralds Mississippi, Inc., a Mississippi corporation
("Trustor"), whose principal place of business is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, in favor of Commonwealth Land Title Company
("Trustee"), for the benefit of Foothill Capital Corporation, a California
corporation ("Beneficiary"), whose principal place of business is located at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
THE AMOUNT OF INDEBTEDNESS TO BE SECURED HEREBY IS UP TO $15,000,000.00, HAVING
A MATURITY DATE OF OCTOBER 1, 2018.
R E C I T A L S
A. Fitzgeralds Gaming Corporation ("Fitzgeralds") is indebted to
Beneficiary, as evidenced by that certain Loan and Security Agreement dated as
of October 29, 1998 (as amended from time to time, the "Loan Agreement"), by and
among Fitzgeralds and Beneficiary, whereby Beneficiary agrees to loan
Fitzgeralds (1) revolving advances ("Advances") up to $10,000,000.00; and (2) a
series of term loans in an aggregate amount at any one time outstanding not to
exceed $5,000,000.00 (the "Capital Expenditure Line Commitment") (the Advances
and the Capital Expenditure Line Commitment hereinafter referred to as the
"Loan"). 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. On account of Fitzgeralds, Beneficiary has agreed to issue
letters of credit ("Letters of Credit") to secure payment of Fitzgeralds'
obligations under existing letters of credit, as set forth in the Loan
Agreement.
C. Trustor has guaranteed Fitzgeralds' obligations under the Loan
Agreement, the Letters of Credit, and all other instruments, documents and other
agreements now existing or hereafter entered into evidencing, securing,
guaranteeing or otherwise relating to the Advances, the Capital Expenditure Line
Commitment, the Letters of Credit and Fitzgeralds' obligations under the Loan
Agreement ("Fitzgeralds' Obligations") pursuant to that certain guaranty dated
as of October 29, 1998, made by Trustor in favor of Beneficiary (the
"Guaranty").
D. As security for Fitzgeralds' Obligations and the Guaranty,
Trustor shall execute this Deed of Trust.
E. Trustor is the owner of the Land as hereinafter defined.
F. Trustor has agreed to execute this Deed of Trust as security for
Fitzgeralds' Obligations in consideration of Trustor's derived benefits from the
proceeds of the Loan and the Letters of Credit, and as security for the
Guaranty.
3
G. The parties acknowledge that certain tax provisions of this Deed
of Trust may be subject to the laws, rules and regulations of the Gaming
Authority of the State of Mississippi ("Applicable Gaming Laws").
This Deed of Trust secures a line of credit as defined in Section
89-1-49 of the Mississippi Code Annotated of 1972, as amended, for commercial
purposes to other than a natural person and shall not be extinguished until the
conditions of Section 89-5-73 of the Mississippi Code Annotated of 1972, as
amended, are met.
W I T N E S S E T H:
IN CONSIDERATION OF THE FOREGOING RECITALS 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, ASSIGN AND WARRANT to Trustee, its successors and assigns, subject to
the Permitted Liens, IN TRUST, WITH POWER OF SALE, for the benefit and security
of Beneficiary, 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 Tunica, State of Mississippi, described in Exhibit A attached
hereto and by this reference incorporated herein (the "Land"), together with all
and singular the tenements, hereditaments, rights, reversions, remainders,
development rights, privileges, benefits, easements (in gross or appurtenant),
rights-of-way, gores or strips of land, streets, ways, alleys, passages, sewer
rights, water courses, water rights and powers, and all appurtenances whatsoever
and claims or demands of Trustor at law or in equity, in any way belonging,
benefitting, relating or appertaining to the Land, the airspace over the Land,
the Improvements (as hereinafter defined), or both, or which here 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 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
"Real 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 or on or appurtenant to the Real Property and used in connection
therewith and which are or become so related to the
2
4
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, marinas and other structures to which boats and vessels may be moored,
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, mantels, screens, plumbing, bathtubs, sinks, basins, faucets, laundry
equipment, planters, desks, sofas, shelves, lockers and cabinets, laundry
equipment, all safes, furnishings, appliances (including, without limitation,
food warming and holding equipment, iceboxes, refrigerators, fans, heaters,
water heaters and incinerators), rugs, carpets and other floor coverings,
draperies and drapery rods and brackets, awnings, window shades, venetian blind,
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
park 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 agreements, franchise agreements and all other
agreements affecting or covering the Real Property or any portion thereof now or
hereafter existing or entered into, together with all amendments, extensions and
renewals of any of the foregoing; (b) all right, title, claim, estate and
interest of Trustor thereunder, including, without limitation, all claims of the
lessor thereunder, letters of credit, guarantees or security deposits, advance
rentals and any and all deposits or payments of similar nature; and (c) the
right to enforce against any tenants thereunder and otherwise any and all
remedies under any of the foregoing, including Trustor's right to evict from
possession any tenant thereunder or to retain, apply, use, draw upon, 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
3
5
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
Mississippi or any Bankruptcy Law).
GRANTING CLAUSE FIVE
[Options to Purchase, etc.]
TOGETHER WITH, all right, title and interest of Trustor in and to all
options and other rights to purchase or lease the Real Property or any portion
thereof or interest therein, if any, and any greater estate in the Real Property
owned or hereafter acquired by Trustor.
GRANTING CLAUSE SIX
[Personal Property]
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 Real Property and used or useful in connection
with the ownership, management or operation of the Real Property, including,
without limitation, the Personal Property.
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
Real 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 Real
Property and/or Personal Property, together with all interest thereon and the
right to collect and receive the same.
4
6
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 Real Property, including,
without limitation, damage arising from any defect in or with respect to the
design or construction of all or any part of the Improvements and damage
resulting therefrom.
GRANTING CLAUSE TEN
[Deposits, Advance Payments and Refunds of Insurance, Utilities, etc.]
TOGETHER WITH, all deposits or other security or advance payments
including rental payments made by or on behalf of Trustor to others, and all
refunds made by others to Trustor, with respect to (i) insurance policies
relating to all or any part of the Real Property and/or Personal Property, (ii)
utility service for all or any part of the Real Property, (iii) cleaning,
maintenance, repair, or similar services for all or any part of the Real
Property, (iv) refuse removal or sewer service for all or any part of the Real
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 Real Property and/or
Personal Property and (vi) parking or similar services or rights afforded to all
or any part of the Real Property.
GRANTING CLAUSE ELEVEN
[Water Rights, etc.]
TOGETHER WITH, all water rights, water stock, water permits and other
rights to the use of water that are now or that may be hereinafter used in
connection with the said Real Property, 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
5
7
the foregoing that Trustor may subsequently acquire, and all conversions of any
of the foregoing, Trustor agrees that all property hereafter acquired by Trustor
and required by the Indenture, this Deed of Trust or any other 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/or 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 Guaranty Obligations.
GRANTING CLAUSE FOURTEEN
[Vessel]
The whole of the following named and described vessel and appurtenances
(the "Vessel") to wit:
OFFICIAL
NAME NUMBER TYPE
---- -------- ----
FITZGERALDS TUNICA 262757 Barge
TOGETHER WITH, all of the following now owned or hereafter
acquired by Trustor or in which Trustor has any rights or interest and now or
hereafter located in or on, or attached to, or used or intended to be used or
which are now or may hereafter be appropriated for use on or in connection with
the operation of the Vessel and the business being conducted or which may be
conducted thereon, or in connection with any construction being conducted or
which may be conducted thereon: boilers, engines, machinery, masts, spars,
boats, cables, motors, tools, anchors, chains, booms, cranes, rigs, pumps, pipe,
tanks, tackle, apparel, furniture, fixtures, rigging, supplies, fittings and
gaming machinery, equipment and accessories relating to the Vessel and the
gaming operations now or hereafter conducted thereon, including but not limited
to communication systems, visual and electronic surveillance systems and
transportation systems, tools, utensils, food and beverage, liquor, uniforms,
linens, housekeeping and maintenance supplies, fuel all gaming equipment and
devices, financial equipment, computer equipment, calculators, adding machines,
video game and slot machines, and any other electronic equipment of every nature
used in connection with the operation of Vessel and the business conducted
thereon, all machinery, equipment, engines, appliances and fixtures for
generating or distributing air, water, heat, electricity, light, fuel or
refrigeration, or for ventilating or sanitary purposes, or for the exclusion of
vermin or insects, or for the removal of dust, refuse or garbage, all wall-beds,
wall safes , built-in furniture and installations, shelving, lockers,
partitions, doorstops, vaults, motors, elevators, dumb-waiters, awnings, window
shades, Venetian blinds, light fixtures, fire hoses and brackets and boxes for
the same, fire sprinklers, alarm, surveillance and security systems, drapes,
drapery rods and brackets, mirrors, mantels, screens, linoleum, carpets and
carpeting, plumbing, bathtubs, sinks, basins, pipes, faucets, water closets,
laundry equipment, washers, dryers, ice-boxes and heating units, all kitchen and
restaurant equipment, including but not limited to silverware, dishes, menus,
cooking utensils, stoves, refrigerators,
6
8
ovens, ranges, dishwashers, disposals, water hewn, incinerators, furniture,
fixtures and furnishings, all cocktail lounge supplies, including but not
limited to bars, glassware, bottles and tables used in connection with the
Vessel, all chaise lounges, hot tubs, swimming pool heaters and equipment, and
all other recreational equipment (computerized and otherwise), beauty and ▇▇▇▇▇▇
equipment and maintenance supplies used in connection with the Vessel, all
specifically designed installations and furnishings, and all furniture,
furnishings and personal property of every nature whatsoever, and all
extensions, additions, accessions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing, all of which (to the
fullest extent permitted by law) shall be conclusively deemed appurtenances to
the Vessel, and all other appurtenances to the Vessel appertaining or belonging,
whether now owned or hereafter acquired, whether on board or not at any time of
determination, and all additions, improvements and replacements hereafter made
in or to the Vessel and all proceeds of any of the foregoing, including without
limitation, any claim for compensation, purchase price reimbursement or award
for a requisition pursuant to that certain Vessel Mortgage executed by Trustor
of even date herewith ("Vessel Mortgage") and any charter hire or other
compensation resulting from a requisition pursuant to the Vessel Mortgage.
Trustor and Beneficiary acknowledge that significant structures, improvements,
additions, equipment and other appurtenances may be added to the Vessel after
the execution of this Deed of Trust, and Trustor specifically affirms and agrees
that all such appurtenances to the Vessel shall be subject to this Deed of
Trust.
The entire estate, property and interest hereby conveyed to Trustee may
hereafter be referred to as the "Trust Estate."
FOR THE PURPOSE OF SECURING:
A. the 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 Guaranty,
whether for principal of, or premium, if any, or interest on the Loan or Letters
of Credit, expenses, indemnities or other amounts (including attorneys' fees and
expenses) (collectively, the "Subsidiary Guaranty Obligations"); and
B. all loans, Advances, debts, principal, interest (including any
interest that, but for the provisions of the Bankruptcy Code, would have
accrued), contingent reimbursement obligations under any outstanding Letters of
Credit, premiums (including Early Termination Premiums), liabilities (including
all amounts charged to Borrower's Loan Account pursuant to the Loan Agreement),
obligations, fees, charges, costs, or Beneficiary expenses (including any fees
or expenses that, but for the provisions of the Bankruptcy Code, would have
accrued), lease payments, guaranties, covenants, and duties owing by Fitzgeralds
to Beneficiary of any kind and description (whether pursuant to or evidenced by
the Loan Documents or pursuant to any other agreement between Beneficiary and
Fitzgeralds, and irrespective of whether for the payment of money), whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, and including any debt, liability, or obligation owing
from Fitzgeralds to others that Beneficiary may have obtained by assignment or
otherwise, and further including all interest not paid when due and all
Beneficiary expenses that Fitzgeralds is required to pay or reimburse by the
Loan Documents, by law, or otherwise; and
7
9
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 or incurred, whether or not arising
after the commencement of a proceeding under the Bankruptcy Code (including
post-petition interest) and whether or not allowed or allowable as a claim in
any such proceeding.
D. All renewals, extensions, modifications and amendments of any of
the aforesaid, whether or not any renewal, extension, modification or amendment
agreement is executed in connection therewith (all obligations and liabilities
described herein, including, without limitation, the Subsidiary Guaranty
Obligations, are collectively referred to herein as the "Secured Obligations").
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY COVENANTS
AND AGREES AS FOLLOWS:
ARTICLE 1.
Section 1.1 Certain Defined Terms.
"Accounts" has the meaning set forth in Section 9.1.2.
"Applicable Gaming Laws" has the meaning set forth in Recital G.
"Applicable Laws" shall have the meaning set forth in Section 3.7.
"Bankruptcy Law" means any laws arising from the United States
Bankruptcy Code, as amended, and any applicable State statute dealing with
bankruptcy.
"Beneficiary" has the meaning set forth in the Preamble.
"Chattel Paper" has the meaning set forth in Section 9.1.1.
"Collateral" has the meaning set forth in Section 9.1.
"Default Rate" has the meaning set forth in Section 4.8.1.
"Documents" has the meaning set forth in Section 9.1.9.
"Environmental Damages" means all claims, judgments, 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
8
10
which are actually incurred at any time as a result of the existence or alleged
existence of Hazardous Materials upon, about or beneath the Real Property or
migrating or threatening to migrate to or from the Real Property, or the
existence or alleged existence of a violation of Environmental Requirements
pertaining to the Real 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 Real Property, and including,
without limitation:
(i) damages for personal injury, or injury to property or
natural resources occurring upon or off of the Real 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) by any federal, state or local governmental agency or
political subdivision, or reasonably necessary to make full economic use of the
Real 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 applicable present and future
statutes, regulations, rules, ordinances, codes, licenses, permits, orders,
approvals, plans, authorizations, concessions, franchises and similar items, of
all a governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
injunctions, judgments and orders relating to the environment, including,
without limitation:
(i) all requirements, including, but not limited to, those
relating or pertaining to (A) reporting, licensing, permitting, investigation
and remediation of emissions, discharges, releases or threatened releases of
Hazardous Materials or other chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes whether solid, liquid or
gaseous in nature, into the environment (including, without limitation, ambient
air, surface water, groundwater or land surface or subsurface strata), (B) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal transport or handling of chemical substances, materials or wastes,
whether solid, liquid or gaseous in nature, including without limitation,
Hazardous Materials or (C) underground storage tanks and related piping, and
emissions, discharges, releases or threatened releases of Hazardous Materials or
other chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes whether solid, liquid or gaseous in nature
therefrom; and
9
11
(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.
"Event of Default" shall have the meaning set forth in Section 8 of the
Loan Agreement.
"Excluded Assets" has the meaning set forth in the Loan Agreement.
"Fixtures" has the meaning set forth in Section 9.1.8.
"Gaming Licenses" means every material license, franchise or other
approval or authorization required to own, lease, operate or otherwise conduct
gaming in any jurisdiction in which Fitzgeralds or any of its subsidiaries
conducts or proposes in good faith to conduct gaming business, including any
applicable liquor licenses.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States of America or foreign government, any state, province or any
city or other political subdivision, whether nor or hereafter existing, or any
officer or official thereof, including without limitation, the Nevada Gaming
Commission, the Nevada State Gaming Control Board, the Colorado Limited Gaming
Control Commission, the Mississippi Gaming Commission and any other agency with
authority to regulate any gaming operation (or proposed gaming operation) owned,
managed or operated by Fitzgeralds or any of its subsidiaries.
"Guaranty" has the meaning set forth in Recital C.
"General Intangibles" has the meaning set forth in Section 9.1.10.
"Hazardous Materials" any chemical, material or substance:
(i) the presence of which requires investigation or
remediation under any federal, state or local law, statute, code, regulation,
ordinance, order, action or policy; or
(ii) which is or becomes defined as or included in the
definition of "hazardous substances," "pollutants," " contaminants," "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
Mississippi; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et
seq.; the Resource Conservation and Recovery Act as amended, 42 U.S.C. Section
6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251, et seq.; the Toxic
10
12
Substances Control Act, 15 U.S.C. Section 2601, et seq.; the Safe Drinking Water
Act, 42 U.S.C. Section 300 (f)-300(j) - 10; or the Clean Air Act, 42 U.S.C.
Section 7401, et seq.; or
(iii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is
or a becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, any state of
the United States, or any political subdivision thereof ("Governmental
Authority"); or
(iv) the presence of which on the Real Property causes or
threatens to pose a hazard to the Real Property or to the health or safety of
Persons on or about the Real 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" shall mean 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 Real 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 Real Property or the Rents, but excluding
taxes on Trustor's income or operating revenues; (ii) charges for any easement
or agreement mentioned for the benefit of the Real 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 Real Property or the
Rents, including mechanics and other Liens permitted by Section 7.2 of 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.
"Indemnities" 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, the Vessel or the Improvements, including, without
11
13
limitation, the name "Fitzgeralds Tunica" 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 Vessel 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 Vessel or the Improvements, and any and all other trade names, or service
marks, whether or not registered, now or hereafter used in the operation of the
Land or the Vessel or the Improvements, including, without limitation, any
interest as a licensee or franchise 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, the Vessel or the Improvements and the construction of the Improvements,
including, without limitation. all marketing plans, feasibility studies, soils
tests, design contracts and all contracts and agreements of Trustor relating
thereto and all architectural, structural, mechanical and engineering plans and
specifications, studies, data and drawings prepared for or relating to the
development of the Land, the Vessel or the Real Property or the construction,
renovation or restoration of any of the Improvements or the extraction of
minerals, sand, gravel or other valuable substances from the Land; (c) any and
all books, records, customer lists (including lists or information derived from
or related to the Player Tracking System described within the definition of
"Tangible Property"), concession agreements, supply or service contracts,
licenses, permits, governmental approvals (to the extent such licenses, permits
and approvals may be pledged under applicable law), signs, goodwill casino and
hotel credit and charge records, supplier lists, checking account, 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 or the Vessel and in which
Trustor now or 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, the Vessel
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 Vessel, 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; (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 contract rights) now or hereafter obtained by
Trustor from any Governmental Authority having or claiming jurisdiction over the
Land, the Vessel, the Tangible Property, the Real 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 or the Vessel, including, without limitation,
any Gaming Licenses and (g) any and all products and proceeds derived or to be
derived therefrom, including without limitation, any and all present and future
accounts, contract rights, chattel paper, instruments, and documents
12
14
that may be derived from the sale, lease or other disposition of any of the
foregoing, and any rights of Trustor to collect or enforce payment thereof, as
well as enforce any guaranties of the foregoing and security therefor.
"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 Real Property or any portion thereof now or hereafter existing
or entered into, together with all amendments, extensions and renewals of any of
the foregoing.
"Liens" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or agreement to give any
financing statement under the applicable UCC (or equivalent statutes) of any
jurisdiction).
"Loan Documents" shall mean the Loan Agreement, Guaranty, Letters of
Credit, and any and all other instruments, documents and other agreements now
existing or hereinafter entered into evidencing, curing, guaranteeing or
otherwise relating to the Secured Obligations.
"PCBs" means polychlorinated biphenyls.
"Permitted Liens" shall mean those certain liens and encumbrances set
forth on Exhibit "B" attached hereto.
"Personal Property" means the Intangible Property and the Tangible
Property.
"Proceeds" has the meaning"set forth in Section 9.1.22.
"Public Waters" means any river, lake, stream, sea, ocean, gulf, bay or
other public body of water.
"Real Property" has the meaning set forth in Granting Clause Two.
"Receiver" means any trustee, receiver, custodian, fiscal agent,
liquidator or similar officer.
"Rents" has the meaning set forth in Granting Clause Three.
"Secured Obligations" shall have the meaning set forth hereinabove.
"Subsidiary Guaranty Obligations" has the meaning set forth hereinabove.
13
15
"Tangible Property" any and all tangible personal property, including,
without limitation, all goods, equipment, supplies, building and other materials
of every nature whatsoever and all other tangible personal property constituting
a part or portion of the Real 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 Real Property or the Vessel,
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 Real Property or the Vessel 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, the
Improvements or the Vessel, 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 Real Property or the Vessel 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 Real Property, to the extent permitted by
the applicable contract or applicable law, all financial equipment, computer
equipment, player tracking system (including all computer hardware, operating
software programs and all right, title and interest in and to any applicable
license therefore) (the "Player Tracking System"), calculators, adding machines,
video game and slot machines, and any other electronic equipment of every nature
used or located on any part of the Real Property or the Vessel, and all present
and future right, title and interest of Trustor in and to any casino operator's
license agreement or sublease agreement used in connection with the Real
Property or the Vessel, along with any and all products and proceeds derived or
to be derived therefrom, including without limitation, any and all present and
future accounts, contract rights, chattel paper, instruments, and documents that
may be derived from the sale, lease or other disposition of any of the
foregoing, and any rights of Trustor to collect or enforce payment thereof, as
well as enforce any guaranties of the foregoing and security therefor.
"Title Policy" means the title insurance policy or policies in favor of
Beneficiary insuring the Lien of this Deed of Trust.
"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.
14
16
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
1.4 of the Loan Agreement) and not to any particular provision of this Deed of
Trust. Article, section, subsection, exhibit, recital, preamble and schedule
references in this Deed of Trust are to this Deed of Trust unless otherwise
specified. References in this Deed of Trust to any agreement, other document or
law "as amended" or "as may be amended from time to time," or to amendments of
any document or law, shall include any amendments, supplements, replacements,
renewals or other modifications.
1.2.3 Determinations. Any determination or calculation contemplated by
this Deed of Trust that is made by Beneficiary shall be final and conclusive and
binding upon the Trustor and Fitzgeralds, in the absence of manifest error.
References in this Deed of Trust to "determination" by Beneficiary include good
faith estimates (in the case of quantitative determinations) and good faith
beliefs (in the case of qualitative determinations). All references herein to
"discretion" of Beneficiary (or terms of similar import) shall mean "absolute
and sole discretion." All consents and other actions of Beneficiary contemplated
by this Deed of Trust may be given, taken, withheld or not taken, withheld 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 that the provisions hereof relating
be the creation, perfection and enforcement of the lien and security interest in
that portion of the Trust Estate which is real property or fixtures shall be
governed by the laws of the State of Mississippi.
1.2.5 Headings. The Article and Section beings used int his Deed of
Trust are for convenience of reference only and shall not affect the
construction hereof.
1.2.6 Severability. If any provision of this Deed of Trust or any Lien
or other right hereunder shall be held to be invalid, illegal or unenforceable
under Applicable Law in any jurisdiction, such provision, Lien or other right
shall be in effect 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.
15
17
ARTICLE 2.
[RESERVED]
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor hereby represents and warrants to Beneficiary and Trustee that:
Section 3.1 Corporate Existence. Trustor (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, and (b) has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged or presently proposes to engage, and (c) is duly qualified and is
authorized to do business and is in good standing as a foreign corporation in
every jurisdiction in which it owns or leases real property or in which the
nature of its business requires it to be so qualified.
Section 3.2 Authorization; Approvals. The execution, delivery and
performance by Trustor of this Deed of Trust are within Trustor's corporate
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 Real
Property. All authorizations or approvals or other actions by, or notice to or
filing with, any Governmental Authority required for the due execution, delivery
and performance by Trustor of this Deed of Trust have been duly obtained and are
in full force and effect.
Section 3.3 Enforceability. This Deed of Trust has been duly executed and
delivered by Trustor and is the legal, valid and binding obligation of Trustor,
enforceable against Trustor in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally and general principles of equity.
Section 3.4 Validity and Perfection of Security Interests. The liens and
security interests in the Trust Estate created in accordance with the terms
hereof constitute valid security interests, and, (a) upon recordation of this
Deed of Trust in the appropriate office in Tunica County, Mississippi, (b) upon
the filing of financing statements naming Trustor as "Debtor" and Beneficiary as
"Secured Party" and describing the Trust Estate in the filing offices of the
Secretaries of State of Mississippi, the Tunica County Clerk of the Chancery
Court, and in the real estate records of Tunica County, Mississippi, (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 Federal law and not
Article 9 of the Applicable UCC, upon recordation of the security interests
granted in Patents 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 US. Copyright Office
16
18
and, to the extent governed by foreign law, the taking of all steps necessary
under applicable foreign law to perfect or record the security interest in all
foreign intellectual property collateral applications and registrations and (e)
to the extent ownership of Collateral is represented by a certificate, a
notation on the certificate of the Lien granted hereby, the security interests
granted to Beneficiary hereunder will constitute perfected security interests
therein superior and prior to all Liens, rights or claims of all other Persons
other than Permitted Liens.
Section 3.5 Title To and Right To Use Assets. Trustor has good and
marketable fee simple title in the Land, and is the legal and beneficial owner
of the remainder of the Trust Estate (and as to the Trust Estate whether now
existing or hereafter acquired, Trustor will continue to own each item thereof),
free and clear of all Liens except Permitted Liens. Trustor has the right to
hold, occupy and enjoy its interest in the Trust Estate subject to the terms of
the Gaming Licenses and subject to the Permitted Liens, and has valid right,
full power and legal authority, subject to Applicable Gaming Laws, to mortgage
and pledge the same as provided herein, and Trustor shall defend the Trust
Estate against all claims and demands of all Persons at any time claiming the
same or any interest therein adverse to Beneficiary (except for Permitted Liens)
and Beneficiary may, subject to Applicable Gaming Laws, at all times peaceably
and quietly enter upon, hold, occupy and enjoy the entire Trust Estate in
accordance with the terms hereof.
Section 3.6 Non-Contravention. Neither the execution, delivery or
performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any government, regulatory
body or administrative agency or other governmental body having jurisdiction
over the Trustor or the Trust Estate, or (iii) result in or require the creation
or imposition of (or the obligation to create or impose) any Lien (other than
the Lien contemplated hereby or by any other Loan Document), upon or with
respect to any of the property or assets now owned or hereafter acquired by
Trustor.
Section 3.7 Contracts. Each material contract which is part of the Trust
Estate (each, a "Contract"), (i) is the genuine, legal valid, and binding
obligation of Trustor, (ii) is enforceable against Trustor in accordance with
its terms, (iii) is in full force and effect and is, to Trustor's knowledge, not
subject to any setoffs defenses, overdue taxes, counterclaims or other claims,
nor have any of the foregoing been asserted or alleged as to any Contract, and
(iv) is, in all material respects, in compliance with all applicable laws,
whether federal, state, local or foreign ("Applicable Laws"). Neither Trustor
nor, to the best knowledge of Trustor, any other party to any Contract is in
default in the performance or observance of any of the terms thereof. No party
to any Contract is the United States government or an instrumentality thereof.
Section 3.8 Leases. Trustor has delivered to Beneficiary true, correct and
complete copies of all Leases, 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
17
19
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 Real 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 Tunica 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 Real Property Use: Mechanics' Liens. The Real 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 the use and operation of
the Improvements).
18
20
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 Indenture, Trustor shall (i) comply with all
requirements of law applicable to the ownership, operation, use and occupancy of
all or any portion of the Trust Estate, whether or not such compliance requires
work or remedial measures that are ordinary or extraordinary, foreseen or
unforeseen, or structural or nonstructural, and (ii) maintain in full force and
effect all authorizations, approvals or other actions, including without
limitation, Gaming Licenses and liquor licenses and permits, which are necessary
or desirable for the performance of Trustor's obligations pursuant to this Deed
of Trust or for the business conducted by Trustor on the Real Property.
Section 4.3 Other Reports. Trustor shall provide from time to time such
additional information regarding Trustor or the Trust Estate as are required
under the Indenture or as Beneficiary may reasonably request.
Section 4.4 Insurance. The Trustor, at its sole cost and expense, shall
provide, maintain and keep in force the insurance required by Section 6.10 of
the Loan Agreement (the "Insurance Policies").
Section 4.5 Waste and Repair. Except as expressly permitted by Section 4.15
of the Indenture, Trustor shall at all times cause the Trust Estate to be
maintained in normal working order and condition (reasonable wear and teat
excepted). Trustor shall not suffer any waste of the Real Property or do or
permit to be done thereon anything that may in any way impair the Real Property
nor impair the security of this Deed of Trust. Trustor shall not abandon the
Real Property nor leave the Real Property unprotected or deserted.
Section 4.6 Impositions: Impounds; Taxes: Capital Costs.
4.6.1 Impositions Affecting the Real Property. Trustor shall
pay when due all Impositions (or currently payable installments thereof) that
are or that may become a lien on the Real Property or are assessed against the
Real Property or the Rents; provided, however,
19
21
that Trustor may, at its expense, contest the amount or validity or application
of any such Impositions by appropriate legal proceedings promptly initiated and
conducted in good faith and with due diligence; provided that (i) neither the
Real 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 Real Property (but only those Impositions
defined in clause (i) of the definition of "Impositions"), together with an
amount equal to the estimated next hazard and other required insurance premiums
in order to accumulate with Beneficiary sufficient funds to pay such Impositions
and premiums at least 30 days prior to their respective due dates. Such funds
shall be held by Beneficiary on a commingled basis and shall not bear interest.
Said accumulated funds shall be paid and applied by Beneficiary with respect to
such Impositions and insurance -premiums as and when due.
Section 4.7 Further Assurances. Trustor shall, at its own expense, perform
such acts as may be necessary, or that Beneficiary may request at any time, to
execute, acknowledge and deliver all such additional papers and instruments
(including, without limitation, a declaration of no setoff) and all such further
assurances of title and will do or cause to be done all further acts and things
as may be proper or reasonably necessary to carry out the purpose hereof and to
subject to the Liens hereof any property intended by the terms hereof to be
covered thereby and any renewals, additions, substitutions, replacements or
betterments thereto.
Section 4.8 Waiver of Offsets.
4.8.1 In the event any tax, stamp tax, assessment water rate,
sewer rate, insurance premium, repair, rent charge, debt, claim, inspection,
Imposition or lien having priority over the Lien of this Deed of Trust, or in
the event any other amount required to be paid by Trustor hereunder shall remain
unpaid and Trustor is not contesting such amount pursuant to the terms hereof or
the Indenture, Beneficiary shall have the right to pay such amount and shall
have the right to declare immediately due and payable any such amount so paid.
Any amount so paid by Beneficiary shall bear interest at the default interest
rate specified in Section 2.6(c) of the Loan Agreement ("Default Rate") from the
date of payment by Beneficiary, shall constitute an additional Secured
Obligation secured hereby, prior to any right, title or interest in or claim
upon the Trust Estate attaching or accruing subsequent to the Lien of this Deed
of Trust shall be secured by this Deed of Trust and shall be payable by Trustor
to Beneficiary within thirty (30) days after receipt by Trustor of written
demand.
4.8.2 Except as otherwise provided herein, in the Indenture or
in the other Loan Documents, all sums payable by Trustor hereunder or under the
other Loan Documents
20
22
shall be paid without notice, demand, counterclaim, setoff, deduction or defense
and without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Trustor hereunder shall in no way be released,
discharged or otherwise affected by reason of (i) any damage to or destruction
of or any condemnation or similar taking of the Trust Estate or any part
thereof; (ii) any restriction or prevention of or interference with any use of
the Trust Estate or any part thereof; (iii) any title defect or encumbrance or
any eviction from the Real Property or the Improvements or any part thereof by
tide 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 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; (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 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 was promptly upon obtaining actual
knowledge thereof, give notice in writing to Beneficiary of an litigation
commenced that is likely to have a material adverse effect on the Real Property
or the Liens created hereby other than unlawful detainer proceedings brought by
Trustor.
Section 4.10 Certain Reports. Trustor will promptly and in any event within
fifteen days after actual receipt by Trustor thereof, deliver to Beneficiary a
copy of any written notice or citation concerning any actual, alleged or
suspected violation of Environmental Requirements or liability of Trustor for
Environmental Damages in connection with the Real Property or past or present
activities of any Person thereon.
Section 4.11 Tax Receipts. Subject to the provisions of Section 4.5 hereof,
Trustor shall provide to Beneficiary, within 30 days after demand made therefor,
bills (which shall be receipted from and after the date receipted bills are
obtainable) showing the payment to the extent then, due of all taxes,
assessments including those payable in periodic installments), water rates,
sewer rates, and/or any other Imposition that have become a lien (other than an
inchoate lien) upon the Trust Estate.
Section 4.12 FIRPTA Affidavit. Trustor hereby represents and warrants to
Beneficiary under penalty of perjury:
(i) Trustor's U.S. Taxpayer Identification Number is
▇▇▇▇▇▇▇▇▇;
(ii) Trustor's business address is set forth in the preamble
hereto; and
(iii) Trustor is not a "foreign person" within the meaning of
Sections 1445 and 7701 of the Code (i.e., Trustor is not a nonresident alien,
foreign corporation, foreign
21
23
partnership, foreign trust or foreign estate as those terms are defined in the
Code and regulations promulgated thereunder).
Trustor agrees to indemnify, defend, protect and hold Beneficiary and
Beneficiary's agents harmless of, from and against any and all loss, liability,
costs, damages, claims or causes of action including reasonable attorneys' fees,
costs and expenses which may be actually incurred by Beneficiary or
Beneficiary's agents by reason of any failure of any representation or warranty
made by Trustor in this Section 4.12 to be true and correct in all respects,
including, but not limited to, any liability for failure to withhold any amount
required under Code Section 1445 in the event of foreclosure or other transfer
of the Real Property.
Section 4.13 Preservation of Contractual Rights. Except as otherwise
expressly permitted by the Indenture, Trustor shall, prior to delinquency,
default or forfeiture, perform all obligations and satisfy all material
conditions required on its part to be satisfied to preserve its rights and
privileges under any contract, lease, license, permit or other authorization (a)
under which it holds any Tangible Property, or (b) which constitutes part of the
Intangible Property.
Section 4.14 Tax Service Contract. At any time after the occurrence of an
Event of Default (whether or not such Event of Default is cured), at the request
of Beneficiary and at Trustor's and/or its permitted successor's sole expense,
Beneficiary shall be furnished a tax service contract in form satisfactory to
Beneficiary issued by a tax reporting agency satisfactory to Beneficiary which
contract shall remain in force until indefeasible discharge in full of the
Secured Obligations.
Section 4.15 Liens. Trustor shall pay and promptly discharge, at Trustor's
cost and expense, all Liens upon the Trust Estate, or any part thereof or
interest therein other than the Permitted Liens. Trustor shall have the right to
contest in good faith the validity of any such Lien, provided Trustor shall
first post such bond or furnish such other security as may be required by law to
release such Lien, and provided further that Trustor shall thereafter diligently
proceed to cause such 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 a 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 Real
Property and the construction and operation thereof for such purposes reasonably
deemed necessary by Beneficiary, it being agreed by Trustor that Beneficiary's
good faith belief of the existence of a past or present release or threatened
release of any Hazardous Material into, onto, beneath or
22
24
from the Real Property shall be conclusively deemed reasonable; provided,
however, that no such prior notice shall be necessary and such inspection may
occur at any time if (l) Beneficiary reasonably believes that an emergency
exists or is imminent or (ii) the giving or delivery of such notice is
prohibited or stayed by Applicable Laws.
ARTICLE 5.
[RESERVED]
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
Section 6.1 Restrictive Uses. Trustor covenants not to suffer any Liens
against the Trust Estate (other than Permitted Liens).
Section 6.2 Transferability. Trustor shall not suffer or permit any sale,
conveyance, mortgage, pledge, hypothecation, encumbrance, lease, assignment or
other transfer of the Trust Estate or any portion thereof or any interest
therein without in each instance obtaining the prior written consent of
Beneficiary, except as permitted under the Loan Agreement.
Section 6.3 No Cooperative or Condominium. Trustor shall not operate or
permit the Real 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 Real Property or any part thereof, as tenant
stockholders or otherwise.
Section 6.4 Impairment of Deed of Trust. Trustor shall not suffer waste of
the Real Property or do or suffer any act or thing to be done, or omit to do any
act or thing, if such act or thing, or such forbearance or omission, would
impair the Real Property or the security of this Deed of Trust.
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 Real Property
("Casualty").
23
25
7.1.2 Any monies received as payment for any loss under any
insurance policy shall be treated in accordance with Section 6.10 of the Loan
Agreement and shall be released to Trustor or applied as set forth in Section
6.10 of the Loan Agreement.
Section 7.2 Condemnation.
(a) Trustor, immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of all or substantially all
of the Real Property, will notify Trustee and Beneficiary of the pendency of
such proceedings. Trustee and Beneficiary may participate in any such
proceedings and Trustor from time to time will deliver to Beneficiary all
instruments requested by Beneficiary to permit such participation; provided,
however, that Trustor shall have the sole right to participate in and settle any
and all such proceedings unless an Event of Default then exists. In any such
condemnation proceedings Beneficiary may be represented by counsel selected by
Beneficiary at the sole cost and expense of Trustor; provided, however, that
Trustor shall have the sole right to participate in and settle any and all such
proceedings unless an Event of Default then exists. Trustor shall cause the net
proceeds of any award or compensation or payment in lieu of settlement thereof,
to be applied as set forth in Section 6.10 of the Loan Agreement. To the extent
permitted by applicable law, Trustor hereby specifically, unconditionally and
irrevocably waives all rights of a property owner granted under applicable law,
including __________, which provide for allocation of condemnation proceeds
between a property owner and a lienholder.
ARTICLE 8.
REMEDIES OF BENEFICIARY
Section 8.1 Event or Default. Subject to any applicable cure period provided
for in the Indenture or in this Deed of Trust, or if no cure period has been
specified then 30 days after Beneficiary has provided written notice to Trustor
with respect thereto (any such cure periods to run concurrently and not
consecutively), any of the following shall be deemed to be an "Event of Default"
hereunder:
8.1.1 The occurrence of one or more "Events of Default" (as
defined in Section 8.0 of the Loan Agreement shall constitute an Event of
Default under this Deed of Trust.
8.1.2 Failure of Trustor to perform any of the terms,
covenants and conditions in this Deed of Trust or any of the other Loan
Documents.
8.1.3 Any statement, representation or warranty given by
Trustor to Trustee or Beneficiary in any of the Loan Documents, in connection
with the Loan Agreement or in any other document provided by Trustor, including
this Deed of Trust, is found to be materially false or misleading.
24
26
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 Real Property or any portion thereof.
8.1.5 Any transfer of the Real Property or any portion thereof
in violation of Section 6.2. hereof.
8.1.6 The occurrence of one or more "Event of Default" as
defined in the Vessel Mortgage shall constitute an Event of Default under this
Deed of Trust.
Section 8.2 Remedies. Beneficiary shall be and hereby is authorized and
empowered, for and in the name and on behalf of Trustor, and shall be and hereby
is irrevocably made, constituted and appointed Trustor's true and lawful
attorney in fact, coupled with an interest and with full power of substitution,
delegation and revocation, to do the following at any time after an Event of
Default.
8.2.1 In person, by agent, or by a receiver, and without
regard to the adequacy of security, the solvency of Trustor or any other matter,
(i) enter upon and take possession of the property, or any part thereof, in its
own name or in the name of Trustee, (ii) inspect the Real 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 Real
Property, (iii) negotiate with Governmental Authorities with respect to
compliance with Environmental Requirements, including, but not limited to,
spending Rents in connection with any cleanup, remediation or other response
action with respect to Hazardous Materials or (v) ▇▇▇ for or otherwise collect
the Rents, issues and profits thereof and apply the same, less costs and
expenses of operation and collection, including reasonable attorneys' fees
actually incurred, to the Secured Obligations, all in such order as Beneficiary
may determine. The entering upon and taking possession of said Real Property,
the collection of such Rents, issues and profits and the application thereof as
aforesaid shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice, or deprive Beneficiary of the
benefits of any indemnity set forth herein;
8.2.2 Commence an action to foreclose this Deed of Trust in
the manner provided by Applicable Laws for the foreclosure of mortgages or deeds
of trust of real property;
8.2.3 Seek a judgment that Trustor has breached its covenants,
representations and/or warranties set forth in this Deed of Trust, or any other
Loan Document regarding Environmental Requirements and/or Hazardous Materials,
by commencing, maintaining and concluding, and enforcing a judgment arising
from, an action for breach of contract, without regard to whether Beneficiary
has commenced an action to foreclose this Deed of Trust, and to seek injunctive
or other appropriate equitable relief and/or the recovery of any and all
Environmental Damages, it being conclusively presumed between Trustor and
Beneficiary that any reasonable costs advanced or expenses actually incurred by
Beneficiary relating to the cleanup, remediation or other response action with
respect to the Real Property were made or incurred by Beneficiary in good faith.
25
27
8.2.4 Intentionally Deleted.
8.2.5 Declare the Secured Obligations to become immediately
due and payable pursuant to Section 9.1 of the Loan Agreement. If the
Beneficiary so declares and Trustor fails to make such payment as and when due,
then Beneficiary may waive its Liens against any parcel of the Real Property or
all or any portion of the Fixtures or Personal Property attached to the Real
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 OF THE INDEBTEDNESS CURRENTLY
OUTSTANDING UNDER THE LOAN AGREEMENT.
8.2.6 With respect to any Personal Property, proceed as to
both the real and personal property in accordance with Beneficiary's rights and
remedies in respect of the Real Property, or proceed to sell said Personal
Property separately and without regard to the Real 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. If Trustor or Fitzgeralds shall be in default as
provided in Section 8.1 hereof, then, in that event, the entire Secured
Obligations, together with all interest accrued thereon, shall, at the option of
Beneficiary, be and become at once due and payable without notice to Trustor,
and Trustee shall, at request of Beneficiary, sell the Real Property conveyed,
or a sufficiency thereof, to satisfy the Secured Obligations at public outcry to
the highest bidder for cash or cash equivalent sale of the Real Property shall
be advertised for three (3) consecutive weeks preceding the sale in a newspaper
published in the county where the Real Property is situated, or if none is so
published, then in some newspaper having a general circulation therein, and by
posting a notice for the same time at the courthouse of the same county. The
notice and advertisement shall disclose the names of the original Trustor in
this Deed of Trust. Trustor waives the provisions of Section 89-1-55 of the
Mississippi Code of 1972, as amended, insofar as this section restricts the
right of Trustee to offer at sale more than 160 acres at a time, and Trustee may
offer the property herein conveyed as a whole, regardless of how it is
described. If the Real Property is situated in two (2) or more counties, or in
two (2) judicial districts of the same county, Trustee shall have full power to
select in which county or judicial district the sale of the Real Property is to
be made, newspaper advertisement to be published and notice of sale to be
posted, and Trustee's selection shall be binding upon Trustor and Beneficiary.
Should Beneficiary be a corporation or an unincorporated association, then any
26
28
officer thereof may declare Trustor or Fitzgeralds to be in default as provided
in Section 8.1 hereof and request Trustee to sell the Real Property. Beneficiary
shall have the same right to purchase the Real Property at the foreclosure sale
as would a purchaser who is not a party to this Deed of Trust. The Trustor
hereby irrevocably and unconditionally waives and releases: (i) all benefits
that might accrue to the Trustor by virtue of any present or future law
exempting the Real Property from attachment, levy or sale or execution or
providing for any appraisement, valuation, stay of execution, exemption from
civil process, redemption or extension of time for payment; (ii) all notices of
any Event of Default or of the Trustee's exercise of any right, remedy or
recourse provided for hereunder or under any of the other Loan Documents; and
(iii) any right to a marshaling of assets or a sale in inverse order of
alienation.
Section 8.4 Proof of Default. Thevent of a sale of the Real 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 executed to the purchaser as aforesaid
shall be sufficient discharge to such purchaser from all obligations to see to
the proper application of the purchase money.
Section 8.5 Protection of Security. If an Event of Default shall have
occurred and be continuing, then upon at least 15 days prior written notice to
Trustor and without releasing Trustor from any obligations or defaults
hereunder, Beneficiary or Trustee shall have the right, but not the obligation,
to: (i) make payment or otherwise perform such obligations of Trustor upon which
such Event of Default is based in such manner and to such extent as either may
reasonably deem necessary to protect the security hereof, Beneficiary and
Trustee being authorized to enter upon the Real 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 (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 (30) days after receipt of written demand all
reasonable sums actually expended by Trustee or Beneficiary pursuant to this
Section 8.5. with interest at the Default Rate from the date of expenditure by
Beneficiary, and such sums, with interest shall be secured hereby.
Section 8.6 Receiver. If an Event of Default shall have occurred and be
continuing, Beneficiary, as a matter of strict right and without regard to the
then value of the Real Property, shall have the right to apply to any court
having jurisdiction to appoint a Receiver or Receivers of the Real Property. Any
such Receiver or Receivers shall have all the powers and duties of
27
29
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 Real 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 Real 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 and all other
rights and provided for herein are cumulative and shall be in addition to any
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
said rights, all Secured Obligations are fully discharged.
28
30
ARTICLE 9.
SECURITY AGREEMENT AND FIXTURE FILING
Section 9.1 Grant of Security Interest. To secure the payment and
performance of the Secured Obligations as and when due, Trustor (as debtor)
hereby grants, conveys, pledges, assigns and transfers to Beneficiary (as
secured party), as agent and representative for the equal and ratable benefit of
Trustee and the Holders, security interests (collectively, the "Security
Interest") in, all right, title, claim, estate and interest in and to all
Personal Property and Fixtures, whether now owned and existing or hereafter
acquired or arising, and wherever located, including, without limitation, the
following but excluding in each case any "Excluded Assets" (the "Collateral"):
9.1.1 Any and all "chattel paper" as such term is defined in
Section 9105(b) of the UCC (the "Chattel Paper");
9.1.2 Any and all "accounts" as such term is defined in
Section 9106 of the UCC (the "Accounts");
9.1.3 Any and all rights to payment for goods sold or leased
or services rendered, whether or not earned by performance and all rights in
respect of the Account Debtor, including without limitation all such rights
constituting or evidenced by any Account, Chattel Paper or Instrument together
with (a) any collateral assigned, hypothecated or held to secure any of the
foregoing and the rights under any security agreement granting a security
interest in such collateral, (b) all goods, the sale of which gave rise to any
of the foregoing, including, without limitation, all rights in any returned or
repossessed goods and unpaid seller's rights, (c) all guarantees, endorsements
and indemnifications on, or of, any of the foregoing and (d) all powers of
attorney for the execution of any evidence of indebtedness or security or other
writing in connection therewith Any and all negotiable instruments, promissory
notes, acceptances, drafts, checks, certificates of deposit and other writings
that evidence a right to the payment of money by any other Person
("Receivables").
9.1.4 Any and (a) all original copies of all documents,
instruments or other writings evidencing the Receivables, (b) all books,
correspondence, credit or other files, records, ledger sheets or cards,
invoices, and other papers relating to Receivables, including without limitation
all tapes, cards, computer tapes, computer discs, computer runs, record keeping
systems and other papers and documents relating to the Receivables, whether in
the possession or under the control of any Trustor or any computer bureau or
agent for any Trustor or otherwise and (c) all credit information, agent from
time to time acting for any Trustor or otherwise and (c) all credit reports and
memoranda relating thereto ("Receivables Records");
9.1.5 Any and all rights to payment:
9.1.5.1 to the extent not included in Accounts,
Receivables or Chattel paper, receivable from any credit card company (such as
Visa, MasterCard, Chattel Paper,
29
31
American Express and Diner's Club), whether arising out of or relating to the
sale of lodging, goods and services by Trustor or otherwise; and
9.1.5.2 of money not listed above and any and all
rights, titles, interests, securities, Liens and guaranties evidencing,
securing, guaranteeing payment of or in any way relating to any Receivables;
9.1.6 "Inventory" as such is defined in Section 9-109(4) of the
UCC, including without limitation and in any event, all goods (whether such
goods are in the possession of Trustor or a lessee, bailee or other Person for
sale, lease, storage, transit, processing, use or otherwise and whether
consisting of whole goods, spare parts, components, supplies, materials or
consigned or returned or repossessed goods) which are held for sale or lease or
are to be furnished (or which have been furnished) under any contract of service
or which are raw materials or work in progress or materials used or consumed in
any Trustee's business ("Inventory");
9.1.7 Any and all equipment "equipment" as such term is
defined in Section 9-109(2) of the UCC, including, without limitation
("Equipment");
9.1.7.1 machinery, machine tools, manufacturing
equipment, data processing equipment, computers, office equipment, furniture,
appliances, rolling stock, motors, pumps, controls, tools, parts, works of art,
furnishings and trade fixtures, all athletic equipment and supplies and all
molds, dies, drawings, blueprints, reports, catalogs and computer programs
related to any Of the above.
9.1.7.2 ships, boats, barges and vessels (whether under
construction or completed) and any and all masts, bowsprit, 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 onboard or not on board, in or to any ship, boat, barge or vessel,
9.1.7.3 slot machines, electronic gaming devices and
related equipment, crap tables, blackjack tables, roulette tables, baccarat
tables, keno apparatus, cards, dice, gaming chips and plaques, tokens, chip
racks. dealing shoes, dice cups, dice, sticks, layouts, paddles, roulette balls
and other supplies and items used in connection with gaming operations, and
9.1.7.4 stones, wood, steel and other materials used or
to be used in the building, construction, repair, renovation, refurbishment or
otherwise with respect to improvements or ships, boats, barges or vessels.
9.1.8 Any and all "fixtures" as such term is defined in
Section 9-313 of the UCC, including without limitation, machinery, equipment or
appliances for generating, storing or distributing air, water, heat,
electricity, light, fuel or refrigeration, for ventilating or
30
32
sanitary purposes, elevators, safes, laundry, kitchen and athletic equipment,
trade fixtures, and telephone, television and other communications equipment
(the "Fixtures");
9.1.9 Any and all "documents" as such term is defined in
Section 9-105(f) of the UCC (the "Documents");
9.1.10 Any and all "general intangibles" as such term is
defined in Section 9-106 of the UCC (together with any property listed under
Section 9.1.4. relating thereto, the "General Intangibles"), including, without
limitation and in any event, rights to the following: payment of money, and
Copyright Collateral (as defined in the Copyright Security Agreement), Trademark
Collateral (as defined in the Trademark Security Agreement), patents, and
Contracts (as defined in Section 9.1.16 hereof), 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 8-102(l)(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, (ii)
Distributions (as defined below) on Pledged Securities (as constituted
immediately prior to such Distribution) constituting securities (whether debt or
equity securities or otherwise), (iii) other or additional stock, notes,
securities or property paid or distributed in respect of Pledged, Securities (as
constituted immediately prior to such payment or distribution) by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement, and (iv) other or additional stock, notes, securities or
property, (including cash) that may be paid in respect of Pledged Securities (as
constituted immediately prior to such payment) by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation, bankruptcy or
similar corporate reorganization or other disposition of Pledged Securities
("Pledged Securities").
9.1.13 Any and all dividends, distributions, payments of
interest and principal and other amounts (whether consisting of cash,
securities, personalty or other property)
31
33
from time to time received, receivable or otherwise distributed in respect of or
in exchange or substitution for any of the Pledged Securities ("Distributions").
9.1.14 Any and all "instruments" as such term is defined in
Section 9-105(l)(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, floors, forwards and any
other similar or dissimilar interest rate or currency exchange agreements or
other interest rate 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 Personal Property or Fixtures other than such
items obtained under license or franchise agreements that prohibit assignment or
disclosure of such items ("Books and Records");
9.1.20 Any and all accessions, appurtenances, components,
repairs, repair parts, spare parts, renewals, improvements, replacements,
substitutions and additions to, of or with respect to any of the foregoing;
9.1.21 Any and all rights, remedies, powers and privileges of
Trustor with respect to any of the foregoing; and
9.1.22 Any and all proceeds and products of any of the
foregoing, whether now held and existing or hereafter acquired or arising,
including all rents, issues, income and profits of or from any of the foregoing
(collectively, the "Proceeds"). "Proceeds" shall include (i) whatever is now or
hereafter received by Trustor upon the sale, exchange, collection, other
disposition or operation of any item of Personal Property, 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 h payable under any insurance policy
by reason of any loss of or damage to any Personal Property 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.
32
34
Section 9.2 Remedies, etc. This Deed of Trust constitutes a security
agreement with respect to the Personal Property, 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 the right (a) to proceed as to both the Real and Personal
Property covered by this Deed of Trust in accordance with the Beneficiary's
rights and remedies in respect of said Real Property, in which event (i) the
provisions of the UCC otherwise applicable to sale of the Collateral shall not
apply, and (ii) the sale of the Collateral in conjunction with and as one parcel
with said Real Property (or any portion thereof) shall be deemed to be a
commercially reasonable manner of sale; or (b) to proceed as to the Collateral
separately from the Land and Improvements, in which event the requirement of
reasonable notice shall be met by mailing notice of the sale, postage prepaid,
to the Trustor or any other person entitled thereto at least ten (10) days
before the time of the sale or other disposition of any of the Collateral.
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 9.4. 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 9.1.9.
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 f related to
the real estate described on Exhibit A to this Deed of Trust.
9.4.1.3 Secured Party is: Foothill Capital Corporation.
9.4.1.4 Debtor is: Fitzgeralds Mississippi, Inc., a
Mississippi corporation
9.4.1.5 The record owner or lessee of the Real Property
is: Fitzgeralds Mississippi, Inc., a Mississippi corporation.
33
35
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 Real
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 transfers
to Beneficiary all of the Rents, whether now due, past due or to become due, and
hereby gives to and confers upon Beneficiary the right, power and authority to
collect such Rents and apply the same to the Secured Obligations secured hereby.
Trustor irrevocably appoints Beneficiary its true and lawful attorney, at the
option of Beneficiary at any time while an Event of Default exists, to demand,
receive and enforce payment, to give receipts, releases and satisfactions, and
to ▇▇▇, 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 Real Property or the use, occupancy, enjoyment or operation of
all or any portion thereof, unless and until Beneficiary, in person or by its
own agent, assumes actual possession thereof, nor shall appointment of a
Receiver for the property by any court at the request of Beneficiary or by
agreement with Trustor or the entering into possession of the property or any
part thereof by such Receiver be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise responsible or liable in any manner with
respect to the Real Property or the use, occupancy, enjoyment or operation of
all or any portion thereof.
Section 10.2 Collection of Rents. Notwithstanding anything to the contrary
contained herein, so long as no Event of Default with respect to the Secured
Obligations 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
34
36
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 or 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.
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 Requirements and is in compliance with all terms and conditions of
such required permits, and (ii) is in compliance with all Environmental
Requirements (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 Requirement, 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 Requirement;
11.1.4 There have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping, on-site or, to the
knowledge of the Trustor after due inquiry, off-site) of Hazardous Materials by
Trustor or any predecessor in interest or any person or entity whose liability
for any release of Hazardous Materials, Trustor has retained or assumed either
contractually or by operations of law at, on, under, from or into any facility
or real property owned, operated, leased, managed or controlled by any such
person;
11.1.5 Neither Trustor nor any person or entity whose liability
Trustor has retained or assumed either contractually or by operation of law has
any liability, absolute or contingent, under any Environmental Law, and there is
no proceeding pending or threatened against any of them under any Environmental
Law; and
35
37
11.1.6 There are no events, activities, practices, incidents or
actions or conditions, circumstances or plans that may interfere with or prevent
compliance by Trustor with any environmental law, or that may give rise to any
liability under any Environmental Laws;
11.1.7 the above representations and warranties contained in
this Section 11.1 shall survive the termination, release and/or reconveyance of
this Deed of Trust and 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 Real Property or any portion thereof by Trustor, its
agents, employees, contractors, or invitees, or any other person, except in
compliance with all Environmental Requirements and only in the course of such
person's legitimate business operations at the property (which shall not include
any business primarily for treatment, storage, disposal, discharge, release,
production, manufacture, generation, refinement or use of Hazardous Materials).
11.2.2 Trustor shall not cause or permit the existence or the
commission by Trustor, its agents, employee, contractors or invitees, or by any
other person of a material violation of any Environmental Requirements upon,
within or beneath the Real 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 Real 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 Real 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 Amendment and
Reauthorization Act of 1986 (42 U.S.C. Section 9607(1)) or any similar state
statute.
11.2.5 Trustor shall, at its sole cost and expense, promptly
take any and all actions required by any federal, state or local governmental
agency or political subdivision or reasonably necessary (as hereinafter
provided) to mitigate Environmental Damages, which requirements or necessity
arise from the presence upon, about or beneath the Real 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 Real Property into the Public Waters. Such actions
shall include, but not be limited to, the investigation of the environmental
condition of the Real 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
36
38
Real 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 Real Property or the
Public Waters to substantiality the condition existing prior to the introduction
of hazardous Material by Trustor upon, about or beneath the property,
notwithstanding any lesser standard of remediation allowable under Applicable
Laws or governmental policies, but recognizing the economic impracticability of
remediating to a level where Hazardous Materials are no longer detactable.
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 Real 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 provided 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 Real Property to the extent reasonably
possible, which shall include, without limitation, the repair of any surface
damage, including paving, caused by such investigations 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, liability of Trustor for Environmental
Damages in connection with the Real Property or past or present activities or
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, write or
injunction, relating to same, then Trustor shall deliver to Beneficiary, within
15 days of the receipt of such notice or communication by Trustor, a written
description of said violation, liability, or actual or threatened event or
condition, together with copies of any documents evidencing same. Receipt of
such notice shall not be deemed to create any obligation on the part of
Beneficiary to defend or otherwise respond to any such notification.
11.2.7 Trustor agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless Beneficiary, its successors and assigns, the
Holders, and their respective directors, officers, shareholders, employees,
agents, contractors, subcontractors, experts, licensees, affiliates, lessees,
trustees, and invitees (collectively, the "Indemnitees") from and against any
and all environmental Damages arising from the discharge, disposal or release of
Hazardous Materials from the property into the Public Waters or from the
presence of Hazardous Materials upon, about or beneath the Real Property or
migrating to or from the Real Property, or arising in any manner whatsoever out
of the violation of any Environmental Requirements pertaining to the property
and the activities thereof, 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 Real Property or any such
37
39
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 first sentence of Section 6.4, and except
for Sections 4.6, 4.7, 4.15 and 8.5, the other covenants of this Deed of Trust
shall not apply to the subject matter of this Article 11.
ARTICLE 12.
MISCELLANEOUS
Section 12.1 Beneficiary's Expenses, Including Attorneys' 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 Indenture,
(iii) the custody, preservation or sale of, collection from, or other
realization upon, any of the Trust Estate, (iv) the exercise or enforcement of
any of the rights, powers or remedies of Beneficiary under this Deed of Trust or
under Applicable Laws (including attorneys' fees and expenses incurred by
Beneficiary in connection with the operation, maintenance or foreclosure of the
Lien of this Deed of Trust) or any bankruptcy proceeding of (v) the failure by
Trustor to perform or observe any of the provisions hereof. All such amounts and
all other amounts payable hereunder shall be payable on demand, together with
interest at the Default Rate.
Section 12.2 Indemnity. Trustor hereby agrees to indemnify and hold harmless
the Indemnitees against (A) any and all transfer taxes, documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Deed of Trust and the other Loan Documents, and
(B) any and all claims, actions, liabilities, costs and expenses of any kind or
nature whatsoever (including fees and disbursements of counsel) that may be
imposed on, incurred by, or asserted against any of them, in any way relating to
or arising out of this Deed of Trust or any action taken or omitted by them
hereunder, except to the extent that they resulted from the gross negligence or
willful misconduct of any such Indemnitee.
Section 12.3 Waivers' Modifications in Writing. No amendment of any
provision of this Deed of Trust (including a waiver thereof or consent relating
thereto) shall be effective unless the same shall be in writing and signed by
Beneficiary and Trustor. Any waiver or consent relating to any provision of this
Deed of Trust shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on Trustor in any case
shall entitle Trustor to any other or further notice or demand in similar
circumstances, except as otherwise provided herein or as required by law.
38
40
Section 12.4 Cumulative Remedies; Failure or Delay. The rights and remedies
provided for under t his Deed of Trust are cumulative and are not exclusive of
any rights and remedies that may be available to Beneficiary under Applicable
Laws, the other Loan Documents or otherwise. No failure or delay on the part of
Beneficiary in the exercise of any power, right or remedy under this Deed of
Trust shall impair such power, right or remedy or shall operate as a waiver
thereof, no shall any single or partial exercise of any such power, right or
remedy preclude other or further exercise of such or any other power, right or
remedy.
12.4.1 Successors and Assigns. This Agreement shall be binding
upon and, subject to the next sentence, inure to the benefit of Trustor and
Beneficiary and their respective successors and assigns. Trustor shall not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of Beneficiary. The benefits of this Deed of Trust shall pass
automatically with any assignment of the Secured Obligations (or any portion
thereof), to the extent of such assignment.
Section 12.5 Independence of Covenants. All covenants under this Deed of
Trust shall each be given independent effect so that, if a particular action or
condition is not permitted by any such covenant, the fact that it would be
permitted by another covenant or by an exception thereto shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
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 under Section 6.1 of the Indenture; provided, however, that no Event of
Default shall be deemed to have occurred (i) if Trustor, within (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 Real
Property nor any substantial part thereof will be in danger of being sold,
forfeited, terminated, canceled, or lost as a result of such contest and (B)
except in the case of a tax or charge junior to the Lien of this Deed of Trust,
Trustor shall have posted such bond or furnished such other security as may be
required by law to release such tax or charge.
Section 12.7 No Waiver. No waiver by Beneficiary of any Default or breach by
Trustor hereunder shall be implied from any omission by Beneficiary to take
action on account of such Default if such Default persists or is repeated, no
express waiver shall affect any Default other than the Default in the waiver,
and such waiver shall be operative only for the time and to the extent therein
stated. Waivers of any covenant, term or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant, term or
condition. The
39
41
consent or approval by Beneficiary to or of any act by Trustor requiring further
consent or approval shall not be deemed to waive or render unnecessary the
consent or approval to or of any subsequent similar act.
Section 12.8 Notices. All notices and other communications under this Deed
of Trust shall be in writing and shall be personally delivered or sent by
prepaid courier, by overnight, registered or certified mail (postage prepaid) or
by prepaid telex, telecopy or telegram, and shall be deemed given when received
by the intended recipient thereof. Unless otherwise specified in a notice given
in accordance with the foregoing provisions of this Section 12.8., notices and
other communications shall be given to the parties hereto at their respective
addresses (or to their respective telex or telecopier numbers) indicated in
Section 11.2 of the Indenture or, in the case of the Trustee, Schedule 12.8.
Section 12.9 References to Foreclosure. References hereto to "foreclosure"
and related phrases shall be deemed references to the appropriate procedure in
connection with Trustee's private power of sale, any judicial foreclosure,
proceeding, and any deed given in lieu of any such Trustees sale or judicial
foreclosure.
Section 12.10 Joinder of Foreclosure. Should Beneficiary hold any other or
additional security for the payment and performance of any Secured Obligation,
its sale or foreclosure, upon any default in such payment or performance, in the
sole discretion of Beneficiary, may be prior to, subsequent to, or joined or
otherwise contemporaneous with any sale or foreclosure hereunder. Except as
otherwise provided in the Indenture, in addition to the rights herein
specifically conferred, Beneficiary, at any time and from time to time, may
exercise any right or remedy now or hereafter given by law to beneficiaries
under deeds of trust generally, or to the holders of any obligations of the kind
hereby secured.
Section 12.11 Rights and Secured Obligations of Beneficiary and Trustee. At
any time or from time to time, without liability therefor and without notice,
and without releasing or otherwise affecting the liability of any Person for
payment of any Secured Obligations, Beneficiary at its sole discretion and only
in writing may subordinate the Liens or either of them, or charge hereof to the
extent not prohibited by the Indenture. Beneficiary and Trustee shall however,
promptly upon Trustor's request from time to time, join in the following actions
(including the execution and delivery of documents) as Trustor determines are
reasonably necessary for the development, use and operation of the Trust Estate:
(i) the making of any map or plat of the Real Property, (ii) the granting,
creating, amending and modifying of any customary easements, covenants,
conditions and restrictions with respect to the Real 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 Real
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 went such action would impair the Liens of this Deed of Trust or the first
priority thereof or (c) to the extent prohibited by the Indenture. Any such
request shall be accompanied by an Officer's Certificate (as defined in the
Indenture). Upon written request of Beneficiary and surrender of this Deed of
Trust to Trustee for
40
42
cancellation, and upon payment to Trustee of its reasonable fees and expenses
actually incurred, Trustee shall cancel and reconvey this Deed of Trust.
Section 12.12 Copies. Trustor will promptly give to Beneficiary copies of
all notices of material violations relating to the Real 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 Real 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 Real Property upon the execution by
Beneficiary and recording thereon in the official records Real Property upon the
execution by Beneficiary and recording thereof in the official records of Tunica
County, Mississippi of a unilateral declaration to that effect. Beneficiary may
require the issuance of such title insurance endorsements to the Title Policy in
connection with any such subordination as Beneficiary, in its judgment, shall
determine am appropriate, and Trustor shall be obligated to pay any cost or
expense incurred in connection with the issuance thereof.
Section 12.14 Personal Property Security Instruments. Trustor covenants and
agrees that if Beneficiary at any time holds additional security for any Secured
Obligations secured hereby, it may enforce the terms thereof or otherwise
realize upon the same, at its option, either before or concurrently herewith or
after a sale is made hereunder, and may apply the proceeds upon the Secured
Obligations without affecting the status or of waiving any right to exhaust all
or any other security, including the security hereunder, and without waiving any
breach or Default or any right or power whether exercised hereunder or contained
herein or in any such other security.
Section 12.15 Suits to Protect Real Property. Trustor covenants and agrees
to appear in and defend any action or proceeding the consequence of which, if
successful, would be that the Liens, or either of them, of this Deed of Trust
would not satisfy the requirements as to extent, perfection or priority set
forth in the Indenture; and to pay all reasonable costs and expenses actually
incurred by Trustee and Beneficiary, including cost of evidence of title and
attorneys' fees in a reasonable sum, in an such action or proceeding in which
Beneficiary and/or Trustee may appear or be made a party.
Section 12.16 Trustor Waiver or 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 Trust or 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,
41
43
valuation stay, extension or redemption, and Trustor, for Trustor, Trustor's
heirs, devise, representatives, successors and assign, and for any and all
Persons ever claiming any interest in the Trust Estate, to the extent permitted
by law, hereby waives and releases all rights of redemption, valuation,
appraisement, stay of execution, and marshaling in the event of foreclosure of
the liens hereby created. If any law referred to in this Section 12.16. and now
in force, of which Trustor, Trustor's heirs, devisees, representatives,
successors and assigns or other Person might take advantage despite this Section
12.16., shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to preclude the application of this Section 12.17. To the
extent permitted by Applicable Laws, Trustor expressly waives and relinquishes
any and all rights and remedies which Trustor may have or be able to assert by
reason of the laws of the State of Mississippi 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 of otherwise, if the proceeds of the Trust Estate are required to be
returned by Beneficiary under any such circumstances, or if Beneficiary
reasonably elects to return any such payment or proceeds or any part thereof in
its discretion, all as though such payment had not been made or such proceeds
not been received. Without limiting the generality of the foregoing, if prior to
any such rescission, invalidation, declaration, restoration or return, this Deed
of Trust shall have been terminated, released and/or reconveyed and the Lien and
Security Interest or any of the Trust Estate shall have been released or
terminated in connection with such termination, release and/or reconveyance,
this Deed of Trust and the Lien and Security Interest and such portion of the
Trust Estate shall be reinstated in full force and effect, and such prior
termination, release and/or reconveyance shall not diminish, discharge or
otherwise affect the obligations of Trustor in respect of the amount of the
affected payment or application of proceeds, the Lien, the Security Interest or
such portion of the Trust Estate.
Section 12.20 Substitution. Beneficiary may at any time, without giving
notice to Trustor or the original or successor Trustee, and without regard to
the willingness or inability of any original or successor Trustee to execute
this trust, appoint another Person or succession of Persons to act as Trustee,
and such appointee in the execution of this trust shall have all the
42
44
powers vested in and obligations imposed upon Trustee. Should Beneficiary be a
corporation or unincorporated association, then any officer thereof may make
such appointment
Section 12.21 Choice of Forum.
12.21.1 Subject to Section 12.21.2. and Section 12.21.3, all
actions or proceedings arising in connection with this Deed of Trust shall be
tried and litigated in state or Federal courts located in the County of Tunica,
State of Mississippi, unless such actions or proceedings are required to be
brought in another court to obtain subject matter jurisdiction over the matter
in controversy TRUSTOR WAIVES ANY RIGHT IT MAY HAVE 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 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 has been brought in an
inconvenient forum. Trustor irrevocably consents, to the fullest extent that it
may effectively do so under Applicable Law, to the service of process of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to Trustor at
its said address, such service to become effective 30 days after such mailing.
Nothing shall affect the right of Beneficiary to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Trustor in any other jurisdiction.
Section 12.22 Regulatory Matters. Whenever in this Deed of Trust a right is
given to Beneficiary, which right is affected by Applicable Gaming Laws or the
enforcement of which is subject to Applicable Gaming Laws, the enforcement of
any such right shall be subject to Applicable Gaming Laws and approval, if so
required, of the applicable Gaming Authorities.
Section 12.23 Guarantor Waivers. If and to the extent that Trustor (for the
purposes of this Section 12.23, "Guarantor") would be denied or construed to be
a guarantor or surety
43
45
under applicable law with respect to its obligations hereunder, Guarantor hereby
agrees as follows:
12.23.1 Guarantor expressly agrees that until each and every
term, covenant and condition of this Deed of Trust is fully performed, Guarantor
shall not be released by any act or event which, except for this provision of
this Deed of Trust might be deemed a legal or equitable discharge or exoneration
of a surety, or because of any waiver, extension, modification, forbearance or
delay or other act or omission of Beneficiary or its failure to proceed promptly
or otherwise as against Fitzgeralds or any other Guarantor, as the case may be
(individually and collectively, in its or their capacity as the entity or
entities the obligations of which are guaranteed hereunder by Guarantor, the
"Principal") or Guarantor, or because of any action taken or omitted or
circumstance which might vary the risk or affect the rights or remedies of
Guarantor as against the Principal, or because of any further dealings between
the Principal and Beneficiary, whether relating to this Deed of Trust or
otherwise. Guarantor hereby expressly waives and surrenders any defense to
Guarantor's liability under this Deed of Trust based upon any of the foregoing
acts, omissions, things, agreements, waivers or any of them. It is the purpose
and intent of this Deed of Trust that the obligations of Guarantor under it
shall be absolute and unconditional under any and all circumstances, subject to
and in accordance with the terms and conditions of this Deed of Trust.
12.23.2 Without in anyway limiting 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 are independent of the obligations of the Principal
hereunder, and Beneficiary shall not be required to make any demand upon,
exercise any right to declare a default by, or proceed against, the Principal
prior to proceeding against Guarantor to the full extent of Guarantor's
obligations hereunder,
12.23.2.3 any defense based on any legal disability of
the Principal and any discharge, release or limitation of the liability of the
Principal to Beneficiary, whether consensual or arising by operation of law or
any bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause, or any claim that Guarantor's obligations
exceed or are more burdensome 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 indebtedness, and demands and notices of every kind;
44
46
12.23.2.5 any defense based on or "arising out of any
defense that the Principal may have to the payment or performance of any
obligation set forth in this Deed of Trust and
12.23.2.6 until all obligations under this Deed of Trust
have been paid and performed in full, all rights of subrogation and all rights
to enforce any remedy that Guarantor may have against the Principal, all
regardless of whether Guarantor may have made any payments to Beneficiary.
12.23.3 Guarantor assumes full responsibility for keeping
informed of the financial condition and business operations of the Principal and
all other circumstances affecting the Principal's ability to pay for and perform
its obligations, and agrees that Beneficiary shall have no duty to disclose to
Guarantor any information which Beneficiary may receive about the Principal"s
financial condition, business operations, or any other circumstances bearing on
its ability to perform.
12.23.4 Notwithstanding anything to the contrary provided
elsewhere herein, in no event shall Guarantor have any liability under this Deed
of Trust beyond its interest in the portion of the Real 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 Real Property.
Section 12.24 WAIVER OF TRIAL BY JURY. TRUSTOR AND BENEFICIARY WAIVE THE
RIGHT TO A TRIAL BY RAY 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.
[Remainder of page left intentionally blank.]
45
47
IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be executed
on the day and year set forth below, to be effective as of the day and year
first above written.
FITZGERALDS MISSISSIPPI, INC.,
a Mississippi corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President/CFO
----------------------------------
Date: October 29, 1998
-----------------------------------
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
Personally appeared before me, the undersigned authority in and for the
said County and State, within my jurisdiction, the within named ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, who acknowledged that he is Senior Vice President/CFO of Fitzgeralds
Mississippi, Inc., a Mississippi corporation, and that for and on behalf of the
said corporation, and as its act and deed, he executed the above and foregoing
instrument, after first having been duly authorized by said corporation so to
do.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
NOTARY PUBLIC
[NOTARY SEAL]
My Commission Expires: June 14, 2000
49
SCHEDULE 9.8.
ADDRESSES
Debtor:
Fitzgeralds Mississippi, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Secured Party:
Foothill Capital Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Trustee:
Commonwealth Land Title Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
50
EXHIBIT A
LEGAL DESCRIPTION OF LAND
See attached
51
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE COUNTY OF TUNICA, STATE
OF MISSISSIPPI, AND DESCRIBED AS FOLLOWS:
TRACT 1
A TRACT OF LAND SITUATED IN SECTION 9 AND 10, TOWNSHIP 3 SOUTH, RANGE 11 WEST,
TUNICA COUNTY, MISSISSIPPI AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING FROM A RAILROAD SPIKE SET IN COMMERCE ROAD, SAID RAILROAD SPIKE
REPRESENTS THE SOUTHEAST ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST,
TUNICA COUNTY, MISSISSIPPI; THENCE
NORTH 90 DEGREES, 00 MINUTES, 00 SECONDS WEST FOR 4203.48 FEET TO A POINT;
THENCE
NORTH 0 DEGREES, 00 MINUTES, 00 SECONDS EAST FOR 7728.13 FEET TO THE "POINT OF
BEGINNING" OF TRACT 1 HEREIN DESCRIBED; THENCE
SOUTH 74 DEGREES, 23 MINUTES, 00 SECONDS WEST FOR 4642.00 FEET TO A POINT ON THE
EXISTING SLOPE OF THE MISSISSIPPI RIVER COMMERCE TRENCHFILL REVETMENT PROJECT
(SAID SLOPE BEING ON THE SOUTHERN OR EASTERN SIDE OF THE MISSISSIPPI RIVER);
THENCE
NORTH 59 DEGREES, 14 MINUTES, 00 SECONDS EAST ALONG THE SAID EXISTING SLOPE FOR
2549.00 FEET TO A POINT; THENCE
NORTH 55 DEGREES, 32 MINUTES, 00 SECONDS EAST ALONG AND CONTINUING ALONG THE
SAID EXISTING SLOPE FOR 1751.00 FEET TO A POINT; THENCE
NORTH 53 DEGREES, 49 MINUTES, 00 SECONDS EAST AND CONTINUING ALONG THE SAID
EXISTING SLOPE FOR 1049.03 FEET TO A POINT; THENCE
SOUTH 45 DEGREES, 17 MINUTES, 48 SECONDS EAST FOR 2112.63 FEET TO A FOUND
CONCRETE MONUMENT REPRESENTING THE CENTER OF ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, MISSISSIPPI, THENCE
NORTH 89 DEGREES, 42 MINUTES, 12 SECONDS EAST FOR 122.36 FEET TO A POINT; THENCE
SOUTH 50 DEGREES, 18 MINUTES, 00 SECONDS WEST FOR 360.83 FEET TO A POINT; THENCE
SOUTH 54 DEGREES, 09 MINUTES, 00 SECONDS WEST FOR 693.00 FEET TO A POINT; THENCE
52
POLICY NO: F89-024254
EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE COUNTY OF TUNICA, STATE
OF MISSISSIPPI, AND DESCRIBED AS FOLLOWS:
TRACT 1
A TRACT OF LAND SITUATED IN SECTION 9 AND 10, TOWNSHIP 3 SOUTH RANGE 11 WEST,
TUNICA COUNTY, MISSISSIPPI AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING FROM A RAILROAD SPIKE SET IN COMMERCE ROAD, SAID RAILROAD SPIKE
REPRESENTS THE SOUTHEAST ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST,
TUNICA COUNTY, MISSISSIPPI; THENCE
NORTH 90 DEGREES, 00 MINUTES, 00 SECONDS, WEST FOR 4203.48 FEET TO A POINT;
THENCE
NORTH 0 DEGREES, 00 MINUTES, 00 SECONDS EAST FOR 7728.13 FEET TO THE "POINT OF
BEGINNING" OF TRACT 1 HEREIN DESCRIBED; THENCE
SOUTH 74 DEGREES, 23 MINUTES, 00 SECONDS WEST FOR 4642.00 FEET TO A POINT ON
THE EXISTING SLOPE OF THE MISSISSIPPI RIVER COMMERCE TRENCHFILL REVETMENT
PROJECT (SAID SLOPE BEING ON THE SOUTHERN OF EASTERN SIDE OF THE MISSISSIPPI
RIVER); THENCE
NORTH 59 DEGREES, 14 MINUTES, 00 SECONDS EAST ALONG THE SAID EXISTING SLOPE FOR
2549.00 FEET TO A POINT; THENCE
NORTH 55 DEGREES, 32 MINUTES, 00 SECONDS EAST ALONG AND CONTINUING ALONG THE
SAID EXISTING SLOPE FOR 1751.00 FEET TO A POINT; THENCE
NORTH 53 DEGREES, 49 MINUTES, 00 SECONDS EAST AND CONTINUING ALONG THE SAID
EXISTING SLOPE FOR 1049.03 FEET TO A POINT; THENCE
NORTH 45 DEGREES, 17 MINUTES, 48 SECONDS EAST FOR 2112.63 FEET TO A FOUND
CONCRETE MONUMENT REPRESENTING THE CENTER OF ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, MISSISSIPPI, THENCE
NORTH 89 DEGREES, 42 MINUTES, 12 SECONDS EAST FOR 122.36 FEET TO A POINT; THENCE
SOUTH 50 DEGREES, 18 MINUTES, 00 SECONDS WEST FOR 360.83 FEET TO A POINT; THENCE
SOUTH 54 DEGREES, 09 MINUTES, 00 SECONDS WEST FOR 693.00 FEET TO A POINT; THENCE
53
ESCROW-NO: 98-01-2724 DTL POLICY NO: 89-024254
SOUTH 69 DEGREES, 05 MINUTES, 00 SECONDS WEST FOR 335.00 FEET TO A POINT; THENCE
NORTH 67 DEGREES, 14 MINUTES, 00 SECONDS WEST FOR 214.00 FEET TO A POINT; THENCE
NORTH 29 DEGREES, 55 MINUTES, 00 SECONDS WEST FOR 570.00 FEET TO THE SAID "POINT
OF BEGINNING",
BEARINGS IN THE ABOVE DESCRIPTION HAVE AN ORIGIN OF TRUE NORTH BASED ON
COMPUTATIONS FROM CELESTIAL OBSERVATIONS.
TRACT 2
A TRACT OF LAND SITUATED IN THE SOUTHEAST 1/4 OF THE SOUTHEAST 1/4, THE
NORTHEAST 1/4 OF THE SOUTHEAST 1/4, THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 AND
THE NORTHEAST 1/4 OF THE SOUTHEAST 1/4, ALL IN ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, MISSISSIPPI AND MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING FROM AN IRON BAR IN THE PRESENT YAZOO-MISSISSIPPI DELTA LEVEE
COMMISSION BASELINE AT MILE POST 22/23, ALSO REFERRED TO AS STATION 21/53+03
AND SAID IRON BAR BEING FURTHER DESCRIBED AS BEING LOCATED 2959.97 FEET SOUTH
OF AND 369.80 FEET WEST OF A CONCRETE MONUMENT REPRESENTING THE NORTHEAST
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST, TUNICA COUNTY,
MISSISSIPPI; THENCE SOUTH 23 DEGREES, 08 MINUTES, 34 SECONDS WEST FOR 948.29
FEET TO A POINT ON THE SOUTHERN LINE OF THE YAZOO-MISSISSIPPI DELTA LEVEE
COMMISSION BOUNDARY AND THE "POINT OF BEGINNING" OF THE TRACT 2 HEREIN
DESCRIBED; THENCE
SOUTH 50 DEGREES, 44 MINUTES, 06 SECONDS WEST FOR 269.86 FEET TO A POINT; THENCE
NORTH 57 DEGREES, 04 MINUTES, 05 SECONDS WEST FOR 661.24 FEET TO A POINT; THENCE
NORTH 71 DEGREES, 16 MINUTES, 09 SECONDS WEST FOR 354.34 FEET TO A POINT; THENCE
NORTH 77 DEGREES, 33 MINUTES, 19 SECONDS WEST FOR 336.25 FEET TO A POINT; THENCE
SOUTH 65 DEGREES, 43 MINUTES, 51 SECONDS WEST FOR 287.55 FEET TO A POINT; THENCE
54
ESCROW NO: 98-01-2724 DTL POLICY NO: 89-024254
NORTH 48 DEGREES, 24 MINUTES, 20 SECONDS WEST FOR 276.87 FEET TO A POINT; THENCE
NORTH 41 DEGREES, 07 MINUTES, 03 SECONDS WEST FOR 177.12 FEET TO A POINT; THENCE
NORTH 27 DEGREES, 20 MINUTES, 55 SECONDS WEST FOR 140.25 FEET TO A POINT ON THE
NORTHERN LINE OF THE YAZOO-MISSISSIPPI DELTA LEVEE COMMISSION BOUNDARY; THENCE
NORTH 54 DEGREES, 09 MINUTES, 00 SECONDS EAST ALONG SAID NORTHERN LINE FOR
22.30 FEET TO A POINT; THENCE
NORTH 50 DEGREES, 18 MINUTES, 00 SECONDS EAST AND CONTINUING ALONG SAID
NORTHERN LINE FOR 149.65 FEET TO A POINT; THENCE
SOUTH 32 DEGREES, 18 MINUTES, 13 SECONDS EAST FOR 206.93 FEET TO A POINT; THENCE
SOUTH 41 DEGREES, 36 MINUTES, 46 SECONDS EAST FOR 147.74 FEET TO A POINT; THENCE
SOUTH 65 DEGREES, 34 MINUTES, 33 SECONDS EAST FOR 385.74 FEET TO A POINT; THENCE
SOUTH 82 DEGREES, 34 MINUTES, 59 SECONDS EAST FOR 203.65 FEET TO A POINT; THENCE
SOUTH 82 DEGREES, 39 MINUTES, 27 SECONDS EAST FOR 250.65 FEET TO A POINT; THENCE
SOUTH 88 DEGREES, 25 MINUTES, 20 SECONDS EAST FOR 136.39 FEET TO A POINT; THENCE
SOUTH 79 DEGREES, 38 MINUTES, 22 SECONDS EAST FOR 163.38 FEET TO A POINT; THENCE
SOUTH 63 DEGREES, 57 MINUTES, 04 SECONDS EAST FOR 199.25 FEET TO A POINT; THENCE
SOUTH 47 DEGREES, 30 MINUTES, 27 SECONDS EAST FOR 621.41 FEET TO THE SAID
"POINT OF BEGINNING",
BEARINGS IN THE ABOVE DESCRIPTION HAVE AN ORIGIN OF TRUE NORTH BASED ON
COMPUTATIONS FROM CELESTIAL OBSERVATIONS.
55
ESCROW NO: 98-01-2724 DTL POLICY NO: 89-024254
TRACT 3
A TRACT OF LAND SITUATED IN SECTION ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST,
TUNICA COUNTY, MISSISSIPPI AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING FROM AND IRON PIN REPRESENTING THE SOUTHEAST ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST, TUNICA COUNTY, MISSISSIPPI; THENCE NORTH 0
DEGREES; 14 MINUTES, 36 SECONDS WEST ALONG THE EAST LINE OF SAID SECTION 10 FOR
158.42 FEET TO THE "POINT OF BEGINNING" OF THE TRACT HEREIN DESCRIBED, THENCE
NORTH 0 DEGREES, 14 MINUTES, 36 SECONDS WEST AND CONTINUING ALONG THE SAID EAST
LINE OF SECTION 10 FOR 845.14 FEET TO A POINT, THENCE
SOUTH 72 DEGREES, 54 MINUTES, 40 SECONDS WEST FOR 226.34 FEET TO A POINT; THENCE
NORTH 51 DEGREES, 57 MINUTES, 56 SECONDS WEST FOR 272.93 FEET TO A POINT; THENCE
NORTH 44 DEGREES, 31 MINUTES, 48 SECONDS WEST FOR 476.17 FEET TO THE SOUTHERN
MOST BOUNDARY (ALSO REFERRED TO AS THE LANDSIDE BOUNDARY) OF THE
YAZOO-MISSISSIPPI DELTA LEVEE COMMISSION PROPERTY; THENCE
SOUTH 50 DEGREES, 44 MINUTES, 06 SECONDS WEST ALONG THE SAID SOUTHERN BOUNDARY
OF THE YAZOO-MISSISSIPPI DELTA LEVEE COMMISSION PROPERTY FOR 249.77 FEET TO A
POINT; THENCE
SOUTH 57 DEGREES, 57 MINUTES, 16 SECONDS EAST FOR 500.07 FEET TO A POINT; THENCE
SOUTH 44 DEGREES, 02 MINUTES, 26 SECONDS EAST FOR 431.02 FEET TO A POINT; THENCE
SOUTH 29 DEGREES, 52 MINUTES, 28 SECONDS EAST FOR 145.98 FEET TO A POINT; THENCE
SOUTH 21 DEGREES, 16 MINUTES, 14 SECONDS EAST FOR 457.57 FEET TO THE SAID
"POINT OF BEGINNING",
BEARINGS IN THE ABOVE DESCRIPTION HAVE AN ORIGIN OF TRUE NORTH BASED ON
COMPUTATIONS FROM CELESTIAL OBSERVATIONS.
56
ESCROW NO: 98-01-2724 DTL POLICY NO: 89-024254
TRACT 4
A TRACT OF LAND SITUATED IN THE ▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇,
▇▇▇▇▇ 11 WEST, TUNICA COUNTY, MISSISSIPPI AND MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING FROM A POINT REPRESENTING THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST, TUNICA COUNTY, MISSISSIPPI, THENCE NORTH 0
DEGREES, 14 MINUTES, 36 SECONDS WEST ALONG A LINE REPRESENTING THE WESTERN LINE
OF SAID SECTION 14 FOR 150.00 FEET TO THE "POINT OF BEGINNING" OF THE TRACT
HEREIN DESCRIBED; THENCE
NORTH 0 DEGREES, 14 MINUTES, 36 SECONDS WEST ALONG A LINE REPRESENTING THE
WEST LINE OF SAID SECTION 11 FOR 945.00 FEET TO A POINT; THENCE
NORTH 89 DEGREES, 39 MINUTES, 36 SECONDS EAST FOR 20.00 FEET TO A POINT; THENCE
SOUTH 0 DEGREES, 14 MINUTES, 36 SECONDS EAST FOR 945.00 FEET TO A POINT; THENCE
SOUTH 89 DEGREES, 39 MINUTES, 36 SECONDS WEST FOR 20.00 FEET TO THE SAID "POINT
OF BEGINNING",
BEARINGS IN THE ABOVE DESCRIPTION HAVE AN ORIGIN OF TRUE NORTH BASED ON
COMPUTATIONS FROM CELESTIAL OBSERVATIONS.
57
ESCROW NO: 98-01-2724 DTL POLICY NO: 89-024254
TRACT 5
A TRACT OF LAND SITUATED IN SECTION ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST, TUNICA
COUNTY, MISSISSIPPI AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING FROM AN IRON PIN REPRESENTING THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 WEST, TUNICA COUNTY, MISSISSIPPI; NORTH 89 DEGREES,
39 MINUTES, 36 SECONDS EAST FOR 20.00 FEET TO THE SAID "POINT OF BEGINNING" OF
THE TRACT HEREIN DESCRIBED; THENCE
NORTH 89 DEGREES, 39 MINUTES, 36 SECONDS EAST FOR 120.01 FEET TO A POINT; THENCE
NORTH 0 DEGREES, 14 MINUTES, 36 SECONDS WEST FOR 1124.29 FEET TO A POINT; THENCE
NORTH 11 DEGREES, 45 MINUTES, 30 SECONDS EAST FOR 100.77 FEET TO A POINT; THENCE
NORTH 1 DEGREES, 05 MINUTES, 48 SECONDS EAST FOR 600.56 FEET TO A POINT; THENCE
NORTH 7 DEGREES, 37 MINUTES, 18 SECONDS EAST FOR 401.94 FEET TO A POINT ON THE
SOUTHERN BOUNDARY OF THE YAZOO-MISSISSIPPI DELTA LEVEE COMMISSION PROPERTY;
THENCE
NORTH 83 DEGREES, 08 MINUTES, 40 SECONDS WEST ALONG THE SAID SOUTHERN
BOUNDARY FOR 36.02 FEET TO A POINT; THENCE
SOUTH 50 DEGREES, 23 MINUTES, 00 SECONDS WEST AND CONTINUING ALONG THE SAID
SOUTHERN BOUNDARY FOR 225.43 FEET TO A POINT; THENCE
SOUTH 0 DEGREES, 14 MINUTES, 36 SECONDS EAST FOR 2083.06 FEET TO THE SAID
"POINT OF BEGINNING",
BEARINGS IN THE ABOVE DESCRIPTION HAVE AN ORIGIN OF TRUE NORTH BASED ON
COMPUTATIONS FROM CELESTIAL OBSERVATIONS.
58
EXHIBIT B
PERMITTED LIENS
See attached
59
Indexing Instructions:
NE ▇/▇, ▇▇ ▇/▇, ▇▇ ▇/▇, ▇▇ 1/4 of Section 9; NE ▇/▇, ▇▇ ▇/▇, ▇▇ ▇/▇, ▇▇ 1/4 of
Section 10; SW 1/4 of Section 11; of Township 3 South, Range 11 West, Tunica
County, Mississippi.