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EXHIBIT 10.2
APN 162-16-310-003
Tax Mailing Address:
Venetian Casino Resort, LLC
c/o Finance Department
201 East Sands Avenue
Las Vegas, Nevada 89109-2617
Recording at the request of
and when recorded mail to:
Douglas L. Wisner, Esq.
Mayer, Brown, Rowe & Maw
1675 Broadway
New York, New York 10019
DEED OF TRUST, LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
SECURITY AGREEMENT AND FIXTURE FILING
made by
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
and
LAS VEGAS SANDS, INC.,
a Nevada corporation,
jointly and severally
as Trustor,
to
FIRST AMERICAN TITLE INSURANCE COMPANY
a California corporation,
as Trustee,
for the benefit of
THE BANK OF NOVA SCOTIA, in its capacity
as Administrative Agent, as Beneficiary
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS AND IS
ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF CLARK COUNTY, NEVADA
UNDER THE NAMES OF VENETIAN CASINO RESORT, LLC AND LAS VEGAS SANDS, INC. AS
"DEBTOR" AND THE BANK OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT, AS SECURED PARTY.
THIS INSTRUMENT IS A "CONSTRUCTION MORTGAGE" AS THAT TERM IS DEFINED IN SECTION
104.9334(8) OF THE NEVADA REVISED STATUTES AND SECURES AN OBLIGATION INCURRED
FOR THE CONSTRUCTION OF AN IMPROVEMENT UPON LAND. THIS
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INSTRUMENT IS GOVERNED BY NRS 106.300-400 AND SECURES FUTURE ADVANCES OF UP TO
$375,000,000 WHICH MAY INCREASE OR DECREASE FROM TIME TO TIME.
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ARTICLE ONE
COVENANTS OF TRUSTOR
1.1 Performance of Deed of Trust................................................................12
1.2 General Representations, Covenants and Warranties...........................................12
1.3 Leasehold Estates...........................................................................13
1.4 Payment of Subject Leases Expenses..........................................................13
1.5 Trustor's Covenants with Respect to Subject Leases..........................................13
1.6 Compliance with Legal Requirements..........................................................16
1.7 Impositions.................................................................................16
1.8 Insurance...................................................................................16
1.9 Condemnation................................................................................17
1.10 Leases......................................................................................18
1.11 Authorization by Trustor....................................................................18
1.12 Security Agreement and Financing Statements.................................................19
1.13 Assignment of Rents and Leases..............................................................21
1.14 Rejection of Subject Leases.................................................................21
1.15 Beneficiary's Cure of Trustor's Default.....................................................22
1.16 Use of Land and Leased Premises.............................................................22
1.17 Affiliates and Restricted Subsidiaries......................................................22
1.18 Merger......................................................................................22
ARTICLE TWO
CORPORATE LOAN PROVISIONS
2.1 Interaction with Credit Agreement...........................................................23
2.2 Other Collateral............................................................................23
ARTICLE THREE
DEFAULTS
3.1 Event of Default............................................................................23
ARTICLE FOUR
REMEDIES
4.1 Acceleration of Maturity....................................................................23
4.2 Protective Advances.........................................................................24
4.3 Institution of Equity Proceedings...........................................................24
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4.4 Beneficiary's Power of Enforcement..........................................................24
4.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply Income..................25
4.6 Leases......................................................................................27
4.7 Purchase by Beneficiary.....................................................................27
4.8 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws......................27
4.9 Receiver....................................................................................27
4.10 Suits to Protect the Trust Estate...........................................................28
4.11 Proofs of Claim.............................................................................28
4.12 Trustor to Pay the Notes on Any Default in Payment; Application of Monies by Beneficiary....28
4.13 Delay or Omission; No Waiver................................................................29
4.14 No Waiver of One Default to Affect Another..................................................29
4.15 Discontinuance of Proceedings; Position of Parties Restored.................................29
4.16 Remedies Cumulative.........................................................................30
4.17 Interest After Event of Default.............................................................30
4.18 Foreclosure; Expenses of Litigation.........................................................30
4.19 Deficiency Judgments........................................................................30
4.20 Waiver of July Trial........................................................................31
4.21 Exculpation of Beneficiary..................................................................31
ARTICLE FIVE
RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS RELATING TO
TRUSTEE
5.1 Exercise of Remedies by Trustee.............................................................31
5.2 Rights and Privileges of Trustee............................................................32
5.3 Resignation or Replacement of Trustee.......................................................32
5.4 Authority of Beneficiary....................................................................32
5.5 Effect of Appointment of Successor Trustee..................................................32
5.6 Confirmation of Transfer and Succession.....................................................33
5.7 Exculpation.................................................................................33
5.8 Endorsement and Execution of Documents......................................................33
5.9 Multiple Trustees...........................................................................33
5.10 Terms of Trustee's Acceptance...............................................................33
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ARTICLE SIX
MISCELLANEOUS PROVISIONS
6.1 Heirs, Successors and Assigns Included in Parties...........................................34
6.2 Addresses for Notices, Etc..................................................................34
6.3 Change of Notice Address....................................................................35
6.4 Headings....................................................................................35
6.5 Invalid Provisions to Affect No Others......................................................35
6.6 Changes and Priority Over Intervening Liens.................................................35
6.7 Estoppel Certificates.......................................................................35
6.8 Waiver of Setoff and Counterclaim...........................................................36
6.9 Governing Law...............................................................................36
6.10 Reconveyance................................................................................36
6.11 Attorneys' Fees.............................................................................37
6.12 Late Charges................................................................................37
6.13 Cost of Accounting..........................................................................37
6.14 Right of Entry..............................................................................37
6.15 Corrections.................................................................................37
6.16 Statute of Limitations......................................................................37
6.17 Subrogation.................................................................................38
6.18 Joint and Several Liability.................................................................38
6.19 Homestead...................................................................................38
6.20 Context.....................................................................................38
6.21 Time........................................................................................38
6.22 Interpretation..............................................................................38
[6.23 Effect of NRS Section 107.030...............................................................38
6.24 Amendments..................................................................................38
6.25 No Conflicts................................................................................38
ARTICLE SEVEN
POWER OF ATTORNEY
7.1 Grant of Power..............................................................................39
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EXHIBIT A LAND DESCRIPTION
EXHIBIT B CASINO LEASED PREMISES
EXHIBIT C PHASE I-A LEASED PREMISES
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DEED OF TRUST, LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND
LEASES, SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, LEASEHOLD DEED OF TRUST, ASSIGNMENT OF RENTS AND
LEASES, SECURITY AGREEMENT AND FIXTURE FILING (hereinafter called "DEED OF
TRUST") is made and effective as of June 4, 2002, by VENETIAN CASINO RESORT, LLC
("VENETIAN"), a Nevada limited liability company, and LAS VEGAS SANDS, INC., a
Nevada corporation ("LVSI" and jointly and severally with Venetian together with
all successors and assigns of the Trust Estate (as hereinafter defined),
"Trustor") whose address is 3355 Las Vegas Boulevard South, Room 1C, Las Vegas,
Nevada 89109, Attention: General Counsel, to FIRST AMERICAN TITLE INSURANCE
COMPANY, a California corporation, whose address is 180 Cassia Way, Suite 502,
Henderson, Nevada 89104, Attention: _____, as Trustee ("TRUSTEE"), for the
benefit of THE BANK OF NOVA SCOTIA ("BENEFICIARY"), a Canadian chartered bank
whose address is: 580 California Street, 21st Floor, San Francisco, California
94104, Attention: Mr. Alan Pendergast, in its capacity as Administrative Agent
under that certain Credit Agreement dated as of June 4, 2002, among Trustor,
Beneficiary, Goldman Sachs Credit Partners L.P., as syndication agent, and the
lenders (the "LENDERS") from time to time parties thereto (as the same may be
amended, supplemented, amended and restated, increased or otherwise modified
from time to time, the "CREDIT AGREEMENT").
THE OBLIGATIONS SECURED HEREBY INCLUDE REVOLVING CREDIT OBLIGATIONS WHICH PERMIT
BORROWING, REPAYMENT AND REBORROWING. INTEREST ON OBLIGATIONS SECURED HEREBY
ACCRUES AT A RATE WHICH MAY FLUCTUATE FROM TIME TO TIME.
DEFINITIONS - As used in this Deed of Trust, the following terms have the
meanings hereinafter set forth:
"ACCOUNTS RECEIVABLE" shall have the meaning set forth in Section 9-102
(NRS 104.9102) of the UCC for the term "account."
"APPURTENANT RIGHTS" means all and singular tenements, hereditaments,
rights, reversions, remainders, development rights, privileges, benefits,
Easements, 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, benefiting, relating or appertaining to the Site, the
airspace over the Site, the Project and the Improvements or any of the Trust
Estate encumbered by this Deed of Trust, or which hereinafter shall in any way
belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Trustor, whether or not the same are of record.
"BANKRUPTCY" means, with respect to any Person that: (i) a court having
jurisdiction in the Trust Estate shall have entered a decree or order for relief
in respect of such Person in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order has not been stayed; or any other
similar relief shall have been granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against such Person, under
the Bankruptcy Code or
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under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
Trust Estate for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over such Person, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of such Person, for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of such Person, and any
such event described in this clause (ii) shall continue for 60 days without
being dismissed, bonded or discharged; or (iii) such Person shall have an order
for relief entered with respect to it or shall commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or such Person shall make any
assignment for the benefit of creditors or shall fail generally, or shall admit
in writing its inability, to pay its debts as such debts become due and payable
and a period of thirty (30) days shall have elapsed; or (iv) such Person shall
be unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due and a period of 30 days shall have
elapsed; or the Board of Directors of such Person (or any committee thereof) or
the managing member of such Person shall, adopt any resolution or otherwise
authorize any action to approve any of the actions referred to in clause (iii)
above or this clause (iv).
"CASINO LEASED PREMISES" means the casino and gaming areas of the Phase I
Project situated in the County of Clark, State of Nevada described in the Casino
Lease and more specifically described in EXHIBIT B attached hereto and
incorporated herein.
"DEED OF TRUST" means this Deed of Trust, Leasehold Deed of Trust,
Assignment of Rents and Leases, Security Agreement and Fixture Filing as it may
be amended, supplemented, amended and restated, increased or otherwise modified
from time to time.
"DEFAULT RATE" means the interest rate that shall be due upon an Event of
Default pursuant to Section 2.2E of the Credit Agreement.
"EASEMENT" means any easement appurtenant, easement in gross, license
agreement or other right running for the benefit of Trustor, the Site, the
Project, the Phase II Project (to the extent benefiting the Phase I-A Leased
Premises), the HVAC Component or appurtenant thereto which benefits the Site,
the Project or the Improvements, including those easements and licenses which
benefit any of the foregoing and are described in the Cooperation Agreement or
each title insurance policy issued by the Title Insurer with regard to the Site.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 3.1 hereof.
"FF&E" means all furniture, fixtures, equipment, appurtenances and personal
property now or in the future contained in, used in connection with, attached
to, or otherwise useful or convenient to the use, operation, or occupancy of, or
placed on, but unattached to, any part of the Site, the Project or the
Improvements whether or not the same constitutes real property or fixtures in
the State, including all removable window and floor coverings, all furniture and
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furnishings, heating, lighting, plumbing, ventilating, air conditioning,
refrigerating, incinerating, cleaning equipment, all elevators, escalators and
elevator and escalator plants, cooking facilities, vacuum cleaning systems,
public address and communications systems, switchboards, security and
surveillance equipment and devices, sprinkler systems and other fire prevention
and extinguishing apparatus and materials, motors, machinery, pipes, appliances,
equipment, fittings, fixtures, and building materials, all exercise equipment,
all gaming and financial equipment, computer equipment, calculators, adding
machines, gaming tables, video game and slot machines, and any other electronic
equipment of every nature used or located on any part of the Site, the Project
or the Improvements, together with all venetian blinds, shades, draperies,
drapery and curtain rods, brackets, bulbs, cleaning apparatus, mirrors, lamps,
ornaments, cooking apparatus and equipment, china, flatware, dishes, utensils,
glassware, ranges and ovens, garbage disposals, dishwashers, mantels, and any
and all such property which is at any time installed in, affixed to or placed
upon the Site, the Project or the Improvements.
"IMPOSITION" means any taxes, assessments, water rates, sewer rates,
maintenance charges, other impositions by any Governmental Instrumentality and
other charges now or hereafter levied or assessed or imposed against the Trust
Estate or any part thereof, and any amount payable with respect thereto under
the Cooperation Agreement or any other Resort Complex Operative Document.
"IMPROVEMENTS" means (1) all the buildings, structures, facilities and
improvements of every nature whatsoever now or hereafter situated on the Site or
the Project, and (2) all fixtures, machinery, appliances, goods, building or
other materials, equipment, including without limitation all gaming equipment
and devices, and all machinery, equipment, engines, appliances and fixtures for
generating or distributing air, water, heat, electricity, light, fuel or
refrigeration, or for ventilating or sanitary purposes, or for the exclusion of
vermin or insects, or for the removal of dust, refuse or garbage; all wall-beds,
wall-safes, built-in furniture and installations, shelving, lockers, partitions,
doorstops, vaults, motors, elevators, dumb-waiters, awnings, window shades,
venetian blinds, light fixtures, fire hoses and brackets and boxes for the same,
fire sprinklers, alarm, surveillance and security systems, computers, drapes,
drapery rods and brackets, mirrors, mantels, screens, linoleum, carpets and
carpeting, plumbing, bathtubs, sinks, basins, pipes, faucets, water closets,
laundry equipment, washers, dryers, ice-boxes and heating units; all kitchen and
restaurant equipment, including but not limited to silverware, dishes, menus,
cooking utensils, stoves, refrigerators, ovens, ranges, dishwashers, disposals,
water heaters, incinerators, furniture, fixtures and furnishings, communication
systems, and equipment; all cocktail lounge supplies, including but not limited
to bars, glassware, bottles and tables used in connection with the Site, the
Project and the Improvements; all chaise lounges, hot tubs, swimming pool
heaters and equipment and all other recreational equipment (computerized and
otherwise), beauty and barber equipment, and maintenance supplies used in
connection with the Site, the Project and Improvements; all amusement rides and
attractions attached to the Site, the Project and the Improvements, all
specifically designed installations and furnishings, and all furniture,
furnishings and personal property of every nature whatsoever now or hereafter
owned or leased by Trustor or in which Trustor has any rights or interest and
located in or on, or attached to, or used or intended to be used or which are
now or may hereafter be appropriated for use on or in connection with the
operation of the Site, the Project or the Improvements or any personal property
encumbered hereby or any other Improvements, or in connection with any
construction being conducted or which may be conducted thereon, and all
extensions, additions,
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accessions, improvements, betterments, renewals, substitutions, and replacements
to any of the foregoing, and all of the right, title and interest of Trustor in
and to any such property, which, to the fullest extent permitted by Legal
Requirements, shall be conclusively deemed fixtures and improvements and a part
of the Trust Estate hereby encumbered.
"INCOME" means all Rents, security or similar deposits, revenues, issues,
royalties, earnings, products or Proceeds, profits, income, including, without
limitation, all rights to payment for hotel room occupancy by hotel guests,
which includes any payment or monies received or to be received in whole or in
part, whether actual or deemed to be, for the sale of services or products in
connection with such occupancy, advance registration fees by hotel guests, tour
or junket proceeds and deposits, deposits for convention and/or party
reservations, and other benefits from the Trust Estate.
"INSOLVENT" means with respect to any Person, that such Person shall be
deemed to be insolvent if such Person shall fail generally, or shall admit in
writing its inability, to pay its debts as such debts become due and payable and
a period of thirty (30) days shall have elapsed.
"INTANGIBLE COLLATERAL" means (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the
Site, the Project or the Improvements, including, without limitation, the names
"Venetian" and "Sands," including any variations thereon, together with the
goodwill associated therewith, and all names, logos, and designs used by
Trustor, or in connection with the Site, the Project 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 Site, the
Project or the Improvements (or in connection with the marketing of the thereof
together with the "SECC Land" (as defined in the Cooperation Agreement) in
accordance with the terms of the Cooperation Agreement), and any and all other
trade names, trademarks or service marks, whether or not registered, now or
hereafter used in the operation of the Site, the Project or the Improvements,
including, without limitation, any interest as a lessee, licensee or franchisee,
and, in each case, together with the goodwill associated therewith; (b) subject
to the absolute assignment contained herein, the Rents; (c) any and all books,
records, customer lists, concession agreements, supply or service contracts,
licenses, permits, approvals by Governmental Instrumentalities (to the extent
Legal Requirements permit or do not expressly prohibit the pledge of such
licenses, permits and approvals), signs, goodwill, casino and hotel credit and
charge records, supplier lists, checking accounts, safe deposit boxes (excluding
the contents of such deposit boxes owned by Persons other than Trustor), cash,
instruments, chattel papers, including inter-company notes and pledges,
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,
including without limitation condemnation awards and insurance proceeds, and all
other contract rights and general intangibles resulting from or used in
connection with the operation and occupancy of the Trust Estate and the Project
and in which Trustor now or hereafter has rights; and (d) general intangibles,
vacation license resort agreements or other time share license or right to use
agreements, including without limitation all rents, issues, profits, income and
maintenance fees resulting therefrom, whether any of the foregoing is now owned
or hereafter acquired.
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"LAND" means the real property situated in the County of Clark, State of
Nevada, more specifically described in EXHIBIT A attached hereto and
incorporated herein by reference, including any after acquired title thereto.
"LEASED PREMISES" means, as the context may require the Casino Leased
Premises and/or the Phase I-A Leased Premises.
"NRS" means the Nevada Revised Statutes as in effect from time to time.
"PERSONAL PROPERTY" has the meaning set forth in SECTION 1.12.
"PHASE I-A LEASED PREMISES" means the real property situated in the County
of Clark, State of Nevada described in the Phase I-A Lease and more specifically
described in EXHIBIT C attached hereto and incorporated herein by reference.
"PROCEEDS" has the meaning assigned to it under the UCC and, in any event,
shall include but not be limited to (i) any and all proceeds of any insurance
(including without limitation property casualty and title insurance), indemnity,
warranty or guaranty payable from time to time with respect to all or a portion
of the Trust Estate; (ii) any and all proceeds in the form of accounts, security
deposits, tax escrows (if any), down payments (to the extent Legal Requirements
permit the same may to be pledged), collections, contract rights, documents,
instruments, chattel paper, Liens and security instruments, guarantees or
general intangibles relating in whole or in part to the Site, the Project or the
Improvements and all rights and remedies of whatever kind or nature Trustor or
its Restricted Subsidiaries may hold or acquire for the purpose of securing or
enforcing any obligation due Trustor or then Restricted Subsidiaries thereunder;
(iii) any and all payments in any form whatsoever made or due and payable from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Trust Estate by any Governmental
Instrumentality; (iv) subject to the absolute assignment contained herein, the
Rents or other benefits arising out of, in connection with or pursuant to the
Casino Lease or any Space Lease of the Trust Estate; and (v) any and all other
amounts from time to time paid or payable in connection with any of the Trust
Estate; provided, however, that neither the Trustor nor its Restricted
Subsidiaries is authorized to sell, transfer, convey, mortgage, pledge, grant
rights in or otherwise dispose of any of the Trust Estate unless permitted under
the Credit Agreement.
"PHASE I HOTEL AND CASINO PROJECT" means the Venetian Casino Resort
consisting of a 3,036 suite hotel and a gaming facility of approximately 116,000
square feet with related heating, ventilation and air conditioning and power
station facilities located at 3355 Las Vegas Boulevard South, Clark County,
Nevada, but excluding the mall component thereof.
"PROJECT" means the Phase I Hotel and Casino Project and the Phase I-A
Project.
"RENTS" means all rents, room revenues, Income, receipts, issues, profits,
revenues and maintenance fees, room, food and beverage revenues, license and
concession fees, Proceeds and other benefits to which Trustor or its Restricted
Subsidiaries may now or hereafter be entitled from the Site, the Project or the
Improvements therein or thereon, as applicable, or any property encumbered
hereby or any business or other activity conducted by Trustor or any of its
Restricted Subsidiaries at the Site, the Project or the Improvements.
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"SITE" means the Land, the Phase I-A Airspace, the Easements and, if the
context so requires, the Casino Leased Premises.
"SPACE LEASES" means any and all leases (excluding the Subject Leases),
subleases, lettings, licenses, concessions, operating agreements, management
agreements, and all other agreements affecting all or a portion of the Trust
Estate, that Trustor or any of its Restricted Subsidiaries has entered into,
taken by assignment, taken subject to, or assumed, or has otherwise become bound
by, now or in the future, that give any Person the right to conduct its business
on, or otherwise use, operate or occupy, all or any portion of the Site, the
Project or the Improvements including, without limitation, the right to use or
occupy space for kiosk(s) or vendor cart(s), and all rights of Trustor or any
Restricted Subsidiary (if any) thereto or therefrom and any leases, agreements
or arrangements permitting anyone to enter upon or use all or any portion of the
Trust Estate to extract or remove natural resources of any kind, together with
all amendments, extensions, and renewals of the foregoing entered into in
compliance with the Credit Agreement, together with all rental, occupancy,
service, maintenance or any other similar agreements pertaining to use or
occupation of, or the rendering of services at the Site, the Project, the
Improvements or any part thereof.
"SPACE LESSEE(S)" means any and all tenants, licensees, or other grantees
of the Space Leases and any and all guarantors, sureties, endorsers or others
having primary or secondary liability with respect to such Space Leases.
"STATE" means the State of Nevada.
"SUBJECT LEASES" means the Casino Lease and the Phase I-A Lease.
"TANGIBLE COLLATERAL" means all personal property, goods, equipment,
supplies, building and other materials of every nature whatsoever and all other
tangible personal property constituting a part or portion of the Project and/or
used in the operation of the hotel, casino, restaurants, stores, parking
facilities, observation tower and all other Improvements on the Site or the
Project including but not limited to communication systems, visual and
electronic surveillance systems and transportation system and not constituting a
part of the real property subject to the Lien of this Deed of Trust and
including all property and materials stored therein in which Trustor or any
Restricted Subsidiary 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 Site, the Project or the Improvements, and
all construction materials and all furnishings, fixtures and equipment,
including, but not limited to, all FF&E and all equipment and devices which are
or are to be installed and used in connection with the operation of the Site,
the Project or the Improvements those items of furniture, fixtures and equipment
which are to be purchased or leased by Trustor or its Restricted Subsidiaries,
machinery and any other items of personal property in which Trustor or its
Restricted Subsidiaries now or hereafter own or acquire an interest or right and
which are used or useful in the construction, operation, use and occupancy of
the Site, the Project or the Improvements and all present and future right and
interest of Trustor or its Restricted Subsidiaries in and to any casino
operator's agreement (to the extent same may be pledged under Nevada Gaming
Laws), license agreement or sublease agreement used in connection with the Site,
the Project or the Improvements.
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"TITLE INSURER" means First American Title Insurance Company, a Nevada
corporation or an Affiliate thereof.
"TRUST ESTATE" means all of the property described in Granting Clauses (A)
through (O) below, inclusive, and each item of property therein described,
PROVIDED, HOWEVER, that such term shall not include the property described in
Granting Clause (P) below.
"UCC" means the Uniform Commercial Code in effect in the State from time to
time, NRS chapters 104 and 104A.
The following terms shall have the meaning assigned to such terms in the
Credit Agreement:
Affiliate
Asset Sale
Bankruptcy Code
Business Day
Casino Lease
Closing Date
Collateral
Collateral Documents
Cooperation Agreement
FF&E Facility
Gaming License
Governmental Instrumentality
HVAC Component
Legal Requirements
Lenders
Lien
Loan Documents
Net Loss Proceeds
Nevada Gaming Authorities
Nevada Gaming Laws
Notes
Obligations
Operative Documents
Permitted Liens
Person Phase I-A Airspace
Phase I-A Lease
Phase I-A Project
Phase I-A Project Plans and Specifications
Phase II Project
Project
Requisite Lenders
Restricted Subsidiary
Resort Complex
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Resort Complex Operative Document
Specified FF&E
Subsidiary
Subsidiary Guarantor
Title Insurance Policy
In addition, any capitalized terms used in this Deed of Trust which are not
otherwise defined herein shall have the meaning ascribed to such terms in the
Credit Agreement.
W I T N E S S E T H:
IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION,
THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, AND FOR THE
PURPOSE OF SECURING in favor of Beneficiary (1) the due and punctual payment of
the portion of the Obligations evidenced by the Notes in the principal amount of
THREE HUNDRED SEVENTY-FIVE MILLION AND 00/100 DOLLARS or so much thereof as may
be advanced from time to time; (2) the performance of the Obligations and each
covenant and agreement of Trustor and the Restricted Subsidiaries contained in
the Credit Agreement, herein or in the other Loan Documents; (3) the payment of
such additional loans or advances as hereafter may be made to either Trustor
(individually or jointly and severally with any other Person), its successors or
assigns or any Restricted Subsidiary, when evidenced by a promissory note or
notes reciting that they are secured by this Deed of Trust; PROVIDED, HOWEVER,
that any and all future advances by Beneficiary or Lenders to either Trustor or
any of its Restricted Subsidiaries made for the improvement, protection or
preservation of the Trust Estate, together with interest at the interest rate
provided in the Credit Agreement, shall be automatically secured hereby unless
such a note or instrument evidencing such advances specifically recites that it
is not intended to be secured hereby and (4) the payment of all sums expended or
advanced by Beneficiary or Lenders under or pursuant to the terms hereof or to
protect the security hereof (including Protective Advances as such term is
defined in SECTION 4.2 hereof), together with interest thereon as herein
provided, Trustor, in consideration of the premises, and for the purposes
aforesaid, does hereby ASSIGN, BARGAIN, CONVEY, PLEDGE, RELEASE, HYPOTHECATE,
WARRANT, AND TRANSFER WITH POWER OF SALE UNTO TRUSTEE IN TRUST FOR THE BENEFIT
OF BENEFICIARY AND THE LENDERS each of the following:
(A) Trustor's interest in the Site and the leasehold estates created
pursuant to the Casino Lease (to the extent permitted by, or not prohibited by,
the Nevada Gaming Laws and other applicable law) and the Phase I-A Lease;
(B) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to the Project and the Improvements;
(C) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to all Appurtenant Rights;
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(D) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to the Tangible Collateral to the extent permitted by, or not
prohibited by, the Nevada Gaming Laws and other applicable Legal Requirements;
(E) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to the Intangible Collateral to the extent permitted by, or not
prohibited by, Nevada Gaming Laws and other applicable law;
(F) TOGETHER WITH (i) all the estate, right, title and interest of
Trustor of, in and to all judgments and decrees, insurance proceeds, awards of
damages and settlements hereafter made resulting from condemnation proceedings
or the taking of any of the property described in Granting Clauses (A), (B),
(C), (D), (E), (J), (K), and (L) hereof or any part thereof under the power of
eminent domain, or for any damage (whether caused by such taking or otherwise)
to the property described in Granting Clauses (A), (B), (C), (D), (E), (J), (K),
and (L) hereof or any part thereof, or to any Appurtenant Rights thereto, and
Beneficiary is hereby authorized to collect and receive said awards and proceeds
and to give proper receipts and acquittance therefor, and (subject to the terms
of the Credit Agreement) to apply the same to the extent constituting Net Loss
Proceeds toward the payment of the Obligations and other sums secured hereby,
notwithstanding the fact that the amount owing thereon may not then be due and
payable; (ii) all proceeds of any sales or other dispositions of the property or
rights described in Granting Clauses (A), (B), (C), (D), (E), (J), (K), and (L)
hereof or any part thereof whether voluntary or involuntary, PROVIDED, HOWEVER,
that the foregoing shall not be deemed to permit Asset Sales except as
specifically permitted in the Credit Agreement; and (iii) whether arising from
any voluntary or involuntary disposition of the Collateral described in Granting
Clauses (A), (B), (C), (D), (E), (J), (K), and (L), all Proceeds, products,
replacements, additions, substitutions, renewals and accessions, remainders,
reversions and after-acquired interest in, of and to such Collateral;
(G) TOGETHER WITH, the absolute assignment of any Space Leases or any
part thereof that Trustor has entered into, taken by assignment, taken subject
to, or assumed, or has otherwise become bound by, now or in the future, together
with all of the following (including all "Cash Collateral" within the meaning of
the Bankruptcy Code) arising from the Space Leases: (a) Rents and Income
(subject, however, to the aforesaid absolute assignment to Trustee for the
benefit of Beneficiary and the revocable license hereinbelow granted to Trustor
to collect the Rents), (b) all guarantees, letters of credit, security deposits,
collateral, cash deposits, and other credit enhancement documents, arrangements
and other measures with respect to the Space Leases, (c) all of Trustor's right,
title, and interest under the Space Leases, including the following: (i) the
right to receive and collect the Rents from the lessee, sublessee or licensee,
or their successor(s), under any Space Lease(s) and (ii) the right to enforce
against any tenants thereunder and otherwise any and all remedies under the
Space Leases, including Trustor's right to evict from possession any tenant
thereunder or to retain, apply, use, draw upon, pursue, enforce or realize upon
any guaranty of any Space Lease; to terminate, modify, or amend the Space
Leases; to obtain possession of, use, or occupy, any of the real or personal
property subject to the Space Leases; and to enforce or exercise, whether at law
or in equity or by any other means, all provisions of the Space Leases and all
obligations of the tenants thereunder based upon (A) any breach by such tenant
under the applicable Space Lease (including any claim that Trustor may have by
reason of a termination, rejection, or disaffirmance of such Space Lease
pursuant to the Bankruptcy Code) and (B) the use and occupancy of the premises
demised,
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whether or not pursuant to the applicable Space Lease (including any claim for
use and occupancy arising under landlord-tenant law of the State or the
Bankruptcy Code). A revocable license is hereby granted to Trustor, so long as
no Event of Default has occurred and is continuing hereunder, to collect and use
the Rents, as they become due and payable, but not more than one (1) month in
advance thereof. Upon the occurrence of an Event of Default, the permission
hereby granted to Trustor to collect the Rents shall automatically be revoked
without notice until such time as such Event of Default is cured and such cure
is accepted by the Beneficiary; PROVIDED, HOWEVER, to the extent that the
Required Lenders rescind and annul an acceleration of the Loans in accordance
with the provisions of the second paragraph of subsection 8.19 of the Credit
Agreement, such revocable license shall be reinstated. Beneficiary shall have
the right, at any time and from time to time, to notify any Space Lessee of the
rights of Beneficiary as provided by this section;
Notwithstanding anything to the contrary contained herein, the foregoing
provisions of this Granting Clause (G) shall not constitute an assignment for
purposes of security but shall to the extent permitted by, or not prohibited by,
the Nevada Gaming Laws and other applicable law constitute an absolute and
present assignment of the Rents to Beneficiary, subject, however, to the
conditional license given to Trustor to collect and use the Rents as hereinabove
provided; and the existence or exercise of such right of Trustor shall not
operate to subordinate this assignment to any subsequent assignment, in whole or
in part, by Trustor;
(H) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to any and all Phase I-A Project Plans and Specifications and all
maps, plans, specifications, surveys, studies, tests, reports, data and drawings
relating to the development of the Site, the Project or the Improvements
including, without limitation, all marketing plans, feasibility studies, soils
tests, design contracts and all contracts and agreements of Trustor relating
thereto including, without limitation, architectural, structural, mechanical and
engineering plans and specifications, studies, data and drawings prepared for or
relating to the development of the Site, the Project or the Improvements or the
construction, renovation or restoration of any of the Improvements or the
extraction of minerals, sand, gravel or other valuable substances from the Site,
the Project or the Improvements and purchase contracts or any agreement granting
Trustor a right to acquire any land situated within Clark County, Nevada;
(I) TOGETHER WITH, to the extent permitted by, or not prohibited by, the
Nevada Gaming Laws and other applicable Legal Requirements, all the estate,
right, title and interest of Trustor of, in and to any and all licenses,
permits, variances, special permits, franchises, certificates, rulings,
certifications, validations, exemptions, filings, registrations, authorizations,
consents, approvals, waivers, orders, rights and agreements (including, without
limitation, options, option rights, contract rights now or hereafter obtained by
Trustor from any Governmental Instrumentality having or claiming jurisdiction
over the Site, the Project, the Improvements or any other element of the Trust
Estate or providing access thereto, or the operation of any business on, at or
from the Site, the Project or the Improvements including, without limitation,
any liquor or Gaming Licenses, (except for any registrations, licenses, findings
of suitability or approvals issued by the Nevada Gaming Authorities or any other
liquor or gaming licenses which are non-assignable); PROVIDED, that upon an
Event of Default hereunder or under the Credit Agreement, if Beneficiary is not
qualified under the Nevada Gaming Laws to hold such Gaming Licenses, then
Beneficiary may designate an appropriately qualified third
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party to which an assignment of such Gaming Licenses can be made in compliance
with the Nevada Gaming Laws;
(J) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to all water stock, water permits and other water rights relating to
the Site, the Project or the Improvements;
(K) TOGETHER WITH all the estate, right, title and interest of Trustor
of, in and to all oil and gas and other mineral rights, if any, in or pertaining
to the Site, the Project or the Improvements and all royalty, leasehold and
other rights of Trustor pertaining thereto;
(L) TOGETHER WITH any and all monies and other property, real or
personal, which may from time to time be subjected to the Lien hereof by Trustor
or by anyone on its behalf or with its consent, or which may come into the
possession or be subject to the control of Trustee or Beneficiary pursuant to
this Deed of Trust or any Loan Document granting a security interest to the
Beneficiary, including, without limitation, any Protective Advances under this
Deed of Trust; and all of Trustor's right, title, and interest in and to all
extensions, improvements, betterments, renewals, substitutes for and
replacements of, and all additions, accessions, and appurtenances to, any of the
foregoing that Trustor may subsequently acquire or obtain by any means, or
construct, assemble, or otherwise place on any of the Trust Estate, and all
conversions of any of the foregoing; it being the intention of Trustor that all
property hereafter acquired by Trustor and required by this Deed of Trust or any
Loan Document granting a security interest to the Beneficiary to be subject to
the Lien of this Deed of Trust or intended so to be shall forthwith upon the
acquisition thereof by Trustor be subject to the Lien of this Deed of Trust as
if such property were now owned by Trustor and were specifically described in
this Deed of Trust and granted hereby or pursuant hereto, and Trustee and
Beneficiary are hereby authorized, subject to Nevada Gaming Laws and other
applicable Legal Requirements, to receive any and all such property as and for
additional security for the obligations secured or intended to be secured
hereby. Trustor agrees to take any action as may reasonably be necessary to
evidence and perfect such Liens or security interests, including, without
limitation, the execution of any documents necessary to evidence and perfect
such Liens or security interests;
(M) TOGETHER WITH, to the extent permitted by applicable Legal
Requirements, any and all Accounts Receivable and all royalties, earnings,
Income, proceeds, products, Rents, revenues, reversions, remainders, issues,
profits, avails, production payments, and other benefits directly or indirectly
derived or otherwise arising from any of the foregoing, all of which are hereby
assigned to Beneficiary, who, except as otherwise expressly provided in this
Deed of Trust (including the provisions of SECTION 1.13 hereof), is authorized
to collect and receive the same, to give receipts and acquittances therefor and
to apply the same to the Obligations secured hereunder, whether or not then due
and payable;
(N) TOGETHER WITH Proceeds of the foregoing property described in
Granting Clauses (A) through (M);
(O) TOGETHER WITH Trustor's rights further to assign, sell, lease,
encumber or otherwise transfer or dispose of the property described in Granting
Clauses (A) through (N) inclusive, above, for debt or otherwise; and
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(P) EXPRESSLY EXCLUDING, HOWEVER, (i) Specified FF&E, (ii) the HVAC
Component, (iii) any assets which if pledged, hypothecated or given as
collateral security would require Trustor to seek approval of any Nevada Gaming
Authority of the pledge, hypothecation or collateralization, or require the
Beneficiary or any Person to be licensed, qualified or found suitable by an
applicable Nevada Gaming Authority, (iv) any contracts, contract rights, permits
or general intangibles, which by their terms or the operation of law prohibit or
do not allow assignment or require any consent for assignment which has not been
obtained or which would be breached by virtue of a security interest being
granted therein, (v) any property or assets subject to a Lien permitted under
clauses (ii), (iv), (xxv)(b), (xxvi) and (xxvii) of the definition of Permitted
Liens contained in the Credit Agreement.
Trustor, for itself and its successors and assigns, covenants and agrees to
and with Trustee that, at the time or times of the execution of and delivery of
these presents or any instrument of further assurance with respect thereto,
Trustor has good right, full power and lawful authority to assign, grant,
convey, warrant, transfer, bargain or sell its interests in the Trust Estate in
the manner and form as aforesaid, and that the Trust Estate is free and clear of
all Liens whatsoever, except the Permitted Liens, and Trustor shall warrant and
forever defend the Trust Estate in the quiet and peaceable possession of Trustee
and its successors and assigns against all and every Person lawfully or
otherwise claiming or to claim the whole or any part thereof, subject to
Permitted Liens. Trustor agrees that any greater title to the Trust Estate
hereafter acquired by Trustor during the term hereof shall be automatically
subject hereto.
ARTICLE ONE
COVENANTS OF TRUSTOR
The Beneficiary and Lenders have been induced to enter into the Credit
Agreement and the other Loan Documents and to make the Loans to Trustor on the
basis of the following material covenants, all agreed to by Trustor:
1.1 PERFORMANCE OF DEED OF TRUST. Trustor shall perform, observe and
comply and shall cause each Subsidiary Guarantor to perform, observe and comply
with each and every provision hereof and of the other Loan Documents and shall
promptly pay, when payment shall become due, the principal with interest
thereon, the other Obligations and all other sums required to be paid by Trustor
hereunder and thereunder, as the case may be.
1.2 GENERAL REPRESENTATIONS, COVENANTS AND WARRANTIES. Trustor
represents, covenants and warrants that: (a) Trustor has good and marketable
title to an indefeasible fee estate in the Site (other than the Leased Premises)
and a valid leasehold interest in the Leased Premises, free and clear of all
Liens except Permitted Liens, and that it has the right to hold, occupy and
enjoy its interest in the Trust Estate, and has good right, full power and
lawful authority to subject the Trust Estate to the Lien of this Deed of Trust
and pledge the same as provided herein and Beneficiary may at all times
peaceably and quietly enter upon, hold, occupy and enjoy the entire Trust Estate
in accordance with the terms hereof; (b) neither Trustor nor any of its
Subsidiaries is Insolvent and no bankruptcy or insolvency proceedings are
pending or contemplated by or, to the best of Trustor's knowledge, threatened
against Trustor nor any of its Subsidiaries; (c) all costs arising from
construction of any Improvements, the performance of any labor and the purchase
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of all Tangible Collateral and the Improvements have been or shall be paid when
due (subject to the provisions of the Credit Agreement and this Deed of Trust);
(d) the Site and the Leased Premises (other than the Phase I-A Airspace) have
frontage on, and direct access for ingress and egress to dedicated street(s);
(e) Trustor shall at all times conduct and operate the Trust Estate in a manner
so as not to lose, or permit any Restricted Subsidiary to lose the right to
conduct gaming activities at the Project; (f) no material part of the Trust
Estate has been damaged, destroyed, condemned or abandoned, other than those
portions of the Trust Estate that have been the subject of condemnation
proceedings that have resulted in the conveyance of such portion of the Trust
Estate to the Trustor; (g) no part of the Trust Estate is the subject of
condemnation proceedings and Trustor has no knowledge of any contemplated or
pending condemnation proceeding with respect to any portion of the Trust Estate
other than condemnation proceedings set forth in EXHIBIT D; and (h) Trustor
acknowledges and agrees that it presently uses, and has in the past used,
certain trade or fictitious names in connection with the operation of the
business at the Trust Estate, including the names "Venetian," and "Sands" (all
of the foregoing, collectively, the "ENUMERATED NAMES"). For all purposes of
this Deed of Trust it shall be deemed that the term "Trustor" includes, in
addition to "Venetian Casino Resort, LLC" and "Las Vegas Sands, Inc." all trade
or fictitious, names that Venetian, LVSI (or any successor or assign thereof)
now or hereafter uses, or has in the past used with respect to the Site, the
Project or the Improvements without limitation, with the same force and effect
as if this Deed of Trust had been executed in all such names (in addition to
"Venetian Casino Resort, LLC" and "Las Vegas Sands, Inc.").
1.3 LEASEHOLD ESTATES. Trustor represents, covenants and warrants: (a)
that the Subject Leases are in full force and effect and unmodified; (b) Trustor
will defend the leasehold estate under each Subject Lease for the entire
remainder of the term set forth in each of the said Subject Leases against all
and every Person or Persons lawfully claiming, or who may claim the same or any
part thereof, subject to the payment of the rents in the Subject Leases reserved
and subject to the performance and observance of all of the terms, covenants,
conditions and warranties thereof; (c) that there is no uncured default under
any Subject Lease or in the performance of any of the terms, covenants,
conditions or warranties thereof on the part of the lessor or the lessee to be
observed and performed and that no state of facts exist under a Subject Lease
which, with the lapse of time or giving of notice or both would constitute a
default thereunder.
1.4 PAYMENT OF SUBJECT LEASES EXPENSES. The Trustor shall pay or cause to
be paid on or prior to the date due all rents, additional rents and other
Impositions payable by the lessor or the lessee under the Subject Leases for
which provision has not been made hereinbefore, when and as often as the same
shall become due and payable and the pro rata share, if any, of all amounts
payable under the Cooperation Agreement allocable to the Site, the Project and
the Improvements. Trustor will in every case deliver, or cause to be delivered,
proper receipts for any such item so paid and will within ten (10) days after
the time when such payment shall be due and payable deliver to the Beneficiary,
a copy of the receipts for any such payments.
1.5 TRUSTOR'S COVENANTS WITH RESPECT TO SUBJECT LEASES.
(a) The Trustor shall at all times promptly and faithfully keep and
perform, or cause to be kept and performed, all the covenants and conditions
contained in the Subject Leases to be kept and performed by the lessor or the
lessee under the Subject Leases and in all respects conform to and comply with
the terms and conditions of the Subject Leases. The Trustor further
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covenants that it shall not do or permit anything to occur or omit to occur
which will impair or tend to impair the security of this Deed of Trust or will
be grounds for declaring a forfeiture of either Subject Leases, and upon any
such failure as aforesaid, Trustor shall be subject to all of the rights and
remedies granted Beneficiary in this Deed of Trust.
(b) Except as otherwise permitted in the Credit Agreement, Trustor shall
not modify, extend or in any way alter the terms of the Subject Leases or cancel
or surrender said Subject Leases, or waive, execute, condone or in anyway
release or discharge the lessor thereunder of or from the obligations,
covenants, conditions and agreements by said lessor to be done and performed;
and Trustor does expressly release, relinquish and surrender unto Beneficiary
all of its rights, power and authority to cancel, surrender, amend, modify or
alter in any way the terms and provisions of the Subject Leases and any attempt
on the part of Trustor to exercise any such right without the written approval
and consent of Beneficiary thereto being first had and obtained shall constitute
an Event of Default under the terms hereof and the Loan Documents and all
Obligations and other sums secured hereby shall, at the option of Beneficiary,
become due and payable forthwith.
(c) The Notes and all other Obligations of Trustor to Beneficiary under
the Loan Documents shall immediately become due and payable at the option of
Beneficiary, if Trustor fails to give Beneficiary immediate notice of any
default under the Subject Leases or of the receipt by it of any notice of
default from the Lessor thereunder, or if Trustor fails to furnish to
Beneficiary immediately any and all information which it may request concerning
the performance by Trustor of the covenants of the Subject Leases, or if Trustor
fails to permit Beneficiary or its representative at all reasonable times to
make investigation or examination concerning the performance by Trustor of the
covenants of the Subject Leases, or if Trustor fails to permit Lender or its
representative at all reasonable time to make investigation or examination
concerning such performance. Trustor shall deliver to Beneficiary an original
executed copy of each Subject Lease, an estoppel certificate from the Lessor
within ten (10) days of request by Beneficiary and in such form and content as
shall be satisfactory to Beneficiary, as well as any and all documentary
evidence received by it showing compliance by Trustor with the provisions of the
Subject Leases.
(d) In the event of any failure by Trustor to perform or cause the
performance of any covenant on the part of lessor or lessee to be observed and
performed under the Subject Leases, the performance by Beneficiary on behalf of
Trustor of the applicable Subject Lease covenant shall not remove or waive, as
between Trustor and Beneficiary, the corresponding Event of Default under the
terms hereof and any amount so advanced by Beneficiary or any costs incurred in
connection therewith, with interest thereon at the Default Rate shall constitute
additional Obligations secured hereby and be immediately due and payable.
(e) To the extent permitted by law, the price payable by Trustor, or by
any other party so entitled, in the exercise of the right of redemption, if any,
shall include all rents paid and other sums advanced by Beneficiary, on behalf
of Trustor, as lessee under the Subject Leases.
(f) The fee title and the leasehold estate in the property demised by the
Phase I-A Lease shall not merge and shall always be kept separate and distinct
until the Phase I-A Airspace terminates. If Trustor acquires the fee title or
any other estate, title or interest in the Phase I-A
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Airspace, or any property covered by the Phase I-A Lease, the lien of this Deed
of Trust shall attach to, cover and be a lien upon such acquired estate, title
or interest and same shall thereupon be and become a part of the Trust Estate
with the same force and effect as if specifically encumbered herein. Trustor
covenants and agrees to ratify, confirm and further evidence Beneficiary's lien
on the acquired estate, title or interest as reasonably requested by
Beneficiary.
(g) Beneficiary shall have the right upon notice to Trustor to
participate in the adjustment and settlement of any insurance proceeds and in
the determination of any condemnation award under the Subject Leases to the
extent and in the manner provided in the Subject Leases.
(h) The Lien of this Deed of Trust shall attach to all of Trustor's
rights and remedies at any time arising under or pursuant to section 365(h) of
the Bankruptcy Code, including, without limitation, all of Trustor's rights to
remain in possession of the Site, the Project, the Improvements and the Leased
Premises. Trustor shall not elect to treat the Subject Leases as terminated
under section 365(h)(1) of the Bankruptcy Code, and any such election shall be
void.
(i) If pursuant to section 365(h)(2) of the Bankruptcy Code,
Trustor shall seek to offset against the rent reserved in the Subject
Leases the amount of any damages caused by the nonperformance by the lessor
or any other Person of any of their respective obligations thereunder after
the rejection by the lessor or such other Person of the Subject Leases
under the Bankruptcy Code, then Trustor shall, prior to effecting such
offset, notify Beneficiary of its intent to do so, setting forth the amount
proposed to be so offset and the basis therefor. Beneficiary shall have the
right to object to all or any part of such offset that, in the reasonable
judgment of Beneficiary, would constitute a breach of the Subject Leases,
and in the event of such objection, Trustor shall not effect any offset of
the amounts found objectionable by Beneficiary. Neither Beneficiary's
failure to object as aforesaid nor any objection relating to such offset
shall constitute an approval of any such offset by Beneficiary.
(ii) If any action, proceeding, motion or notice shall be
commenced or filed in respect of the lessor under the Subject Leases or any
other party or in respect of the Subject Leases in connection with any case
under the Bankruptcy Code, then Beneficiary shall have the option to
intervene in any such litigation with counsel of Beneficiary's choice.
Beneficiary may proceed in its own name in connection with any such
litigation, and Trustor agrees to execute any and all powers,
authorizations, consents or other documents required by Beneficiary in
connection therewith.
(iii) Trustor shall, after obtaining knowledge thereof, promptly
notify Beneficiary of any filing by or against the lessor or other party
with an interest in the Leased Premises of a petition under the Bankruptcy
Code. Trustor shall promptly deliver to Beneficiary, following receipt,
copies of any and all notices, summonses, pleadings, applications and other
documents received by Trustor in connection with any such petition and any
proceedings relating thereto.
(iv) If there shall be filed by or against Trustor a petition
under the Bankruptcy Code, and Trustor, as lessee under the Subject Leases,
shall determine to reject the Subject
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Leases pursuant to section 365(a) of the Bankruptcy Code, then Trustor
shall give Beneficiary a notice of the date on which Trustor shall apply to
the bankruptcy court for authority to reject the Subject Leases (such
notice to be no later than twenty (20) days prior to such date).
Beneficiary shall have the right, but not the obligation, to serve upon
Trustor at any time prior to the date on which Trustor shall so apply to
the bankruptcy court a notice stating that Beneficiary demands that Trustor
assume and assign the Subject Leases to Beneficiary pursuant to section 365
of the Bankruptcy Code. If Beneficiary shall serve upon Trustor the notice
described in the preceding sentence, to the extent permitted by law Trustor
shall not seek to reject the Subject Leases and shall comply with the
demand provided for in the preceding sentence. In addition, effective upon
the entry of an order for relief with respect to Trustor under the
Bankruptcy Code, Trustor hereby assigns and transfers to Beneficiary a
non-exclusive right to apply to the bankruptcy court under section
365(d)(4) of the Bankruptcy Code for an order extending the period during
which the Subject Leases may be rejected or assumed; and shall (a) promptly
notify Beneficiary of any default by Trustor in the performance or
observance of any of the terms, covenants or conditions on the part of
Trustor to be performed or observed under the Subject Leases and of the
giving of any written notice by the lessor thereunder to Trustor of any
such default, and (b) promptly cause a copy of each written notice given to
Trustor by the lessor under the Subject Leases to be delivered to
Beneficiary. Beneficiary may rely on any notice received by it from any
such lessor of any default by Trustor under the Subject Leases and may take
such action as may be permitted by law to cure such default even though the
existence of such default or the nature thereof shall be questioned or
denied by Trustor or by any Person on its behalf.
1.6 COMPLIANCE WITH LEGAL REQUIREMENTS. Trustor shall promptly, fully,
and faithfully comply in all material respects with all Legal Requirements and
shall cause all portions of the Trust Estate and its use and occupancy to fully
comply in all material respects with Legal Requirements at all times, whether or
not such compliance requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, structural or nonstructural, or that
interfere with the use or enjoyment of the Trust Estate.
1.7 IMPOSITIONS. Except as otherwise permitted by Section 6.3 of the
Credit Agreement, (a) Trustor shall pay all Impositions as they become due and
payable and shall deliver to Beneficiary promptly upon Beneficiary's request,
evidence satisfactory to Beneficiary that the Impositions have been paid or are
not delinquent; (b) Trustor shall not suffer to exist, permit or initiate the
joint assessment of the real and personal property, or any other procedure
whereby the Lien of Impositions and the Lien of the personal property taxes
shall be assessed, levied or charged to the Site (other than the Phase I-A
Airspace), the Project and the Improvements as a single Lien, except as may be
required by Legal Requirements; and (c) in the event of the passage of any law
deducting from the value of real property for the purposes of taxation any Lien
thereon, or changing in any way the taxation of deeds of trust or obligations
secured thereby for state or local purposes, or the manner of collecting such
Impositions or taxes and imposing an Imposition or tax, either directly or
indirectly, on this Deed of Trust or the Notes, Trustor shall pay all such
Impositions and taxes and all payments required with respect to Impositions and
taxes pursuant to the terms of the Cooperation Agreement (including, without
limitation, Article VI thereof).
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1.8 INSURANCE.
(a) INSURANCE REQUIREMENTS AND PROCEEDS.
(i) HAZARD INSURANCE. Trustor shall at its sole expense obtain
for, deliver to, assign and maintain for the benefit of Beneficiary, during
the term of this Deed of Trust, insurance policies insuring the Trust
Estate and liability insurance policies, all in accordance with the
requirements of Section 6.4 of the Credit Agreement, if applicable, and
Article X of the Cooperation Agreement. Trustor shall promptly pay when due
any premiums on such insurance policies and on any renewals thereof and all
payments required with respect to the procurement of insurance pursuant to
the terms of the Cooperation Agreement (including, without limitation,
Article VI thereof). In the event of the foreclosure of this Deed of Trust
or any other transfer of title to the Trust Estate in extinguishment of the
Obligations and other sums secured hereby, all right, title and interest of
Beneficiary in and to all insurance policies and renewals thereof then in
force shall pass to the purchaser or grantee.
(ii) HANDLING OF PROCEEDS. All Proceeds from any insurance
policies shall be disbursed in accordance with the provisions of Section
6.4 of the Credit Agreement, if applicable, or otherwise in accordance with
Articles X and XI of the Cooperation Agreement. All Proceeds of insurance
allocable to Trustor, as owner of the Site, the Project and the
Improvements and attributable to business interruption insurance shall be
collected, held, handled and disbursed in accordance with Section 6.4 of
the Credit Agreement, if applicable, or otherwise in accordance with
Articles X and XI of the Cooperation Agreement. All Net Loss Proceeds shall
be applied by Trustor in accordance with subsection 2.4B(iii)(b) of the
Credit Agreement.
(b) COMPLIANCE WITH INSURANCE POLICIES. Trustor shall not violate or
permit to be violated any of the conditions or provisions of any policy of
insurance required by the Credit Agreement, the Cooperation Agreement or this
Deed of Trust and Trustor shall so perform and satisfy the requirements of the
companies writing such policies that, at all times, companies of good standing
shall be willing to write and/or continue such insurance. Trustor further
covenants to promptly send to Beneficiary all notices relating to any violation
of such policies or otherwise affecting Trustor's insurance coverage or ability
to obtain and maintain such insurance coverage.
1.9 CONDEMNATION. Beneficiary is hereby authorized, at its option, to
commence, appear in and prosecute in its own or Trustor's name any action or
proceeding relating to any condemnation and, subject to Article XII of the
Cooperation Agreement, to settle or compromise any claim in connection
therewith, and Trustor hereby appoints Beneficiary as its attorney-in-fact to
take any action in Trustor's name pursuant to Beneficiary's rights hereunder.
Immediately upon obtaining knowledge of the institution of any proceedings for
the condemnation of the Trust Estate, or any portion thereof, Trustor shall
notify the Trustee and Beneficiary of the pendency of such proceedings. Trustor
from time to time shall execute and deliver to Beneficiary all instruments
requested by it to permit such participation; PROVIDED, HOWEVER, that such
instruments shall be deemed as supplemental to the foregoing grant of permission
to Trustee and Beneficiary, and unless otherwise required, the foregoing
permission shall, without more, be deemed sufficient to permit Trustee and/or
Beneficiary to participate in
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such proceedings on behalf of Trustor. All such compensation awards, damages,
claims, rights of action and Proceeds, and any other payments or relief, and the
right thereto, whether paid to Beneficiary or Trustor, are included in the Trust
Estate. Beneficiary, after deducting therefrom all its expenses, including
reasonable attorneys fees, shall apply all Proceeds paid directly to it in
accordance with the provisions of Section 6.4(C) of the Credit Agreement. All
such Proceeds paid directly to the Trustor shall be applied by Trustor in
accordance with Article XII of the Cooperation Agreement and subsection
2.4B(iii)(b) of the Credit Agreement. Trustor hereby waives any rights it may
have under NRS 37.115, as amended or recodified from time to time.
1.10 LEASES.
(a) Trustor represents and warrants that:
(i) Trustor has delivered to Beneficiary true, correct and
complete copies of all Space Leases, including all amendments and
modifications, written or oral existing as of the Closing Date;
(ii) Trustor has not executed or entered into any modifications
or amendments of the Space Leases, either orally or in writing, other than
written amendments that have been delivered or disclosed to Beneficiary in
writing;
(iii) to Trustor's knowledge, no default now exists under any
Space Lease on the part of Trustor or the tenant thereunder;
(iv) to Trustor's knowledge, no event has occurred that, with the
giving of notice or the passage of time or both, would constitute such a
default or would entitle Trustor or any other party under such Space Lease
to cancel the same or otherwise avoid its obligations;
(v) Trustor has not accepted prepayments of installments of Rent
under any Space Leases, except for installment payments not in excess of
one month's Rent and security deposits;
(vi) except for Permitted Liens, Trustor has not executed any
assignment or pledge of any of Space Leases, the Rents, or of Trustor's
right, title and interest in the same; and
(vii) this Deed of Trust does not constitute a violation or
default under any Space Lease, and is and shall at all times constitute a
valid Lien on Trustor's interests in the Space Leases.
(b) After an Event of Default, Trustor shall deliver to Beneficiary the
executed originals of all Space Leases.
1.11 AUTHORIZATION BY TRUSTOR.
Trustor agrees that in the event the ownership of the Trust Estate or any
part thereof becomes vested in a person other than Trustor, Beneficiary may,
without notice to Trustor, deal
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in any way with such successor or successors in interest with reference to this
Deed of Trust, the Notes and other Obligations hereby secured without in any way
vitiating or discharging Trustor's or any guarantor's, surety's or endorser's
liability hereunder or upon the obligations hereby secured. No sale of the Trust
Estate and no forbearance to any person with respect to this Deed of Trust and
no extension to any person of the time for payment of the Notes, and other sums
hereby secured given by Beneficiary shall operate to release, discharge, modify,
change or affect the original liability of Trustor, or such guarantor, surety or
endorser either in whole or in part.
1.12 SECURITY AGREEMENT AND FINANCING STATEMENTS. Trustor (as debtor)
hereby grants to Beneficiary (as creditor and secured party) a present and
future security interest in all Tangible Collateral, Intangible Collateral, FF&E
(subject to the provisions of subsection 7.1 of the Credit Agreement which
permit the granting of certain security interests in Specified FF&E to the
providers of Indebtedness which may be incurred under said subsection), the
Improvements, all other personal property now or hereafter owned or leased by
Trustor or in which Trustor has or will have any interest, to the extent that
such property constitutes a part of the Trust Estate (whether or not such items
are stored on the Site, the Project, the Improvements or elsewhere), Proceeds of
the foregoing comprising a portion of the Trust Estate and all proceeds of
insurance policies and consideration awards arising therefrom and all proceeds,
products, substitutions, and accessions therefor and thereto, subject to
Beneficiary's rights to treat such property as real property as herein provided
(collectively, the "PERSONAL PROPERTY"). Trustor shall execute any and all
documents and writings, including without limitation financing statements
pursuant to the UCC, as may be necessary or prudent to preserve and maintain the
priority of the security interest granted hereby on property which may be deemed
subject to the foregoing security agreement or as Beneficiary may reasonably
request, and shall pay to Beneficiary on demand any reasonable expenses incurred
by Beneficiary in connection with the preparation, execution and filing of any
such documents. Trustor hereby authorizes and empowers Beneficiary to execute
and file, on Trustor's behalf, all financing statements and refilings and
continuations thereof as advisable to create, preserve and protect said security
interest. This Deed of Trust constitutes both a real property deed of trust and
a "security agreement," within the meaning of the UCC, and the Trust Estate
includes both real and personal property and all other rights and interests,
whether tangible or intangible in nature, of Trustor in the Trust Estate.
Trustor by executing and delivering this Deed of Trust has granted to
Beneficiary, as security of the Obligations, a security interest in the Trust
Estate.
(a) FIXTURE FILING. Without in any way limiting the generality of the
immediately preceding paragraph or of the definition of the Trust Estate, this
Deed of Trust constitutes a fixture filing under Sections 9-313 and 9-502 of the
UCC (NRS 104.9502(3)). For such purposes, (i) the "debtor" is each Trustor and
their respective addresses are the addresses given for each such Person in the
initial paragraph of this Deed of Trust; (ii) the "secured party' is
Beneficiary, and its address for the purpose of obtaining information is the
address given for it in the initial paragraph of this Deed of Trust; (iii) the
real estate to which the fixtures are or are to become attached is Trustor's
interest in the Site, the Project and the Improvements; and (iv) the record
owner of such real estate or interests therein is Venetian (with respect to the
Land, as the lessor under the Casino Lease and as the lessee under the Phase I-A
Lease) and LVSI (with respect to the leasehold estate created by the Casino
Lease).
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(b) REMEDIES. This Deed of Trust shall be deemed a security agreement as
defined in the UCC and the remedies for any violation of the covenants, terms
and conditions of the agreements herein contained shall include any or all of
(i) those prescribed herein, and (ii) those available under applicable Legal
Requirements, and (iii) those available under the UCC, all at Beneficiary's sole
election. In addition, a photographic or other reproduction of this Deed of
Trust shall be sufficient as a financing statement for filing wherever filing
may be necessary to perfect or continue the security interest granted herein.
(c) DEROGATION OF REAL PROPERTY. It is the intention of the parties that
the filing of a financing statement in the records normally having to do with
personal property shall never be construed as in anyway derogating from or
impairing the express declaration and intention of the parties hereto as
hereinabove stated that everything used in connection with the production of
Income from the Trust Estate and/or adapted for use therein and/or which is
described or reflected in this Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable, shall be regarded as
part of the real property encumbered by this Deed of Trust irrespective of
whether (i) any such item is physically attached to the Improvements, (ii)
serial numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or in any list
filed with Beneficiary, or (iii) any such item is referred to or reflected in
any such financing statement so filed at any time. It is the intention of the
parties that the mention in any such financing statement of (1) rights in or to
the proceeds of any fire and/or hazard insurance policy, or (2) any award in
eminent domain proceedings for a taking or for loss of value, or (3) Trustor's
interest as lessors in any present or future Space Lease or rights to Rents,
shall never be construed as in anyway altering any of the rights of Beneficiary
as determined by this Deed of Trust or impugning the priority of Beneficiary's
real property Lien granted hereby or by any other recorded document, but such
mention in the financing statement is declared to be for the protection of
Beneficiary in the event any court or judge shall at any time hold with respect
to the matters set forth in the foregoing clauses (1), (2) and (3) that notice
of Beneficiary's priority of interest to be effective against a particular class
of Persons, including but not limited to, the federal government and any
subdivisions or entity of the federal government, must be filed in the UCC
records.
(d) PRIORITY; PERMITTED FINANCING OF TANGIBLE COLLATERAL. All Personal
Property of any nature whatsoever which is subject to the provisions of this
security agreement shall be purchased or obtained by Trustor in its name and
free and clear of any Lien or encumbrance, except for Permitted Liens, for use
only in connection with the business and operation of the Project, and shall be
and at all times remain free and clear of any lease or similar arrangement,
chattel financing, installment sale agreement, security agreement and any
encumbrance of like kind, so that Beneficiary's security interest shall attach
to and vest in Trustor for the benefit of Beneficiary, with the priority herein
specified, immediately upon the installation or use of the Personal Property at
the Site, the Project or the Improvements and Trustor warrants and represents
that Beneficiary's security interest in the Personal Property is a validly
attached and binding security interest, properly perfected and prior to all
other security interests therein subject to Permitted Liens.
(e) PRESERVATION OF CONTRACTUAL RIGHTS OF COLLATERAL. Trustor shall,
prior to delinquency, default, or forfeiture, perform all obligations and
satisfy all material conditions required on its part to be satisfied to preserve
its rights and privileges under any contract, lease, license, permit,
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or other authorization (i) under which it holds any Tangible Collateral or (ii)
which constitutes part of the Intangible Collateral, except where Trustor is
contesting such obligations in accordance with the Credit Agreement.
(f) REMOVAL OF COLLATERAL. Except as permitted in the Credit Agreement
for damaged or obsolete Tangible Collateral which is either no longer usable or
which is removed temporarily for repair or improvement or removed for
replacement on the Trust Estate with Tangible Collateral of similar function or
as otherwise permitted herein, none of the Tangible Collateral shall be removed
from the Trust Estate without Beneficiary's prior written consent.
(g) CHANGE OF NAME. Trustor shall not change its corporate or business
name, or do business within the State under any name other than such name, or
any trade name(s) other than those as to which Trustor gives prior written
notice to Beneficiary of its intent to use such trade names, or any other
business names (if any) specified in the financing statements delivered to
Beneficiary for filing in connection with the execution hereof, without
providing Beneficiary with the additional financing statement(s) and any other
similar documents deemed reasonably necessary by Beneficiary to assure that its
security interest remains perfected and of undiminished priority in all such
Personal Property notwithstanding such name change.
(h) RELEASE OF LIENS. To the extent any property (including Specified
FF&E) is financed by any lender pursuant to an FF&E Facility, the Trustee shall
release the Liens in favor of the Beneficiary on such Specified FF&E and in
connection therewith at the Trustor's expense, execute and deliver to the
Trustor such documents (including, without limitation UCC-3 termination
statements) as the Trustor may reasonably request to evidence such termination.
1.13 ASSIGNMENT OF RENTS AND LEASES. The assignment of Rents and Leases
set out above in Granting Clause (G) shall constitute an absolute and present
assignment to Beneficiary, subject to the revocable license granted therein to
Trustor to collect the Rents, and shall be fully operative without any further
action on the part of any party, and specifically upon the occurrence of an
Event of Default such license shall be automatically revoked and Beneficiary
shall be entitled upon the occurrence of an Event of Default hereunder to all
Rents and to enter into the Site, the Project and the Improvements to collect
all such Rents until such time as such Event of Default is cured and such cure
is accepted by the Beneficiary; PROVIDED, HOWEVER, that Beneficiary shall not be
obligated to take possession of the Trust Estate, or any portion thereof. The
absolute assignment contained in Granting Clause (G) shall not be deemed to
impose upon Beneficiary any of the obligations or duties of Trustor provided in
any such Space Lease (including, without limitation, any liability under the
covenant of quiet enjoyment contained in any Space Lease in the event that any
lessee shall have been joined as a party defendant in any action to foreclose
this Deed of Trust and shall have been barred and foreclosed thereby of all
right, title and interest and equity of redemption in the Trust Estate or any
part thereof).
1.14 REJECTION OF SUBJECT LEASES. To the extent applicable, if the lessor
under the Subject Leases rejects or disaffirms the Subject Leases or purports or
seeks to disaffirm the Subject Leases pursuant to any Bankruptcy Law, then:
(a) To the extent permitted by law, Trustor shall remain in possession of
the Leased Premises demised under the Subject Leases and shall perform all acts
reasonably necessary for
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Trustor to remain in such possession for the unexpired term of such Subject
Leases (including all renewals), whether the then existing terms and provisions
of such Subject Leases require such acts or otherwise; and
(b) All the terms and provisions of this Deed of Trust and the Lien
created by this Deed of Trust shall remain in full force and effect and shall
extend automatically to all of Trustor's rights and remedies arising at any time
under, or pursuant to, Section 365(h) of the Bankruptcy Code, including all of
Trustor's rights to remain in possession of the Leased Premises.
1.15 BENEFICIARY'S CURE OF TRUSTOR'S DEFAULT. If Trustor defaults
hereunder in the payment of any tax, assessment, Lien, encumbrance or other
Imposition, in its obligation to furnish insurance hereunder, or in the
performance or observance of any other covenant, condition or term of this Deed
of Trust or the Cooperation Agreement, Beneficiary may, but is not obligated to,
to preserve its interest in the Trust Estate, perform or observe the same, but
only upon not less than five Business Days notice to Trustor and all payments
made (whether such payments are regular or accelerated payments) and reasonable
costs and expenses incurred or paid by Beneficiary in connection therewith shall
become due and payable immediately. The amounts so incurred or paid by
Beneficiary, together with interest thereon at the Default Rate from the date
incurred until paid by Trustor, shall be added to the Obligations and secured by
the Lien of this Deed of Trust. Beneficiary is hereby empowered to enter and to
authorize others to enter upon the Site, the Project or the Improvements or any
part thereof for the purpose of performing or observing any such defaulted
covenant, condition or term, without thereby becoming liable to Trustor or any
Person in possession holding under Trustor. No exercise of any rights under this
SECTION 1.14 by Beneficiary shall cure or waive any Event of Default or notice
of default hereunder or invalidate any act done pursuant hereto or to any such
notice, but shall be cumulative of all other rights and remedies.
1.16 USE OF LAND AND LEASED PREMISES. Trustor covenants that the Trust
Estate shall be (i) used and operated in a manner reasonably consistent with the
description of the Project in the Cooperation Agreement and (ii) the last
sentence of Section 6.4 of the Credit Agreement.
1.17 AFFILIATES AND RESTRICTED SUBSIDIARIES.
(a) SUBJECT TO TRUST DEED. Subject to compliance with requirements of
applicable Nevada Gaming Laws, Trustor shall cause all of its Affiliates and
Subsidiaries in any way involved with the operation of all or a portion of the
Trust Estate to observe the covenants and conditions of this Deed of Trust to
the extent necessary to give the full intended effect to such covenants and
conditions and to protect and preserve the security of Beneficiary hereunder.
Trustor shall, at Beneficiary's request, cause any such Affiliate or Restricted
Subsidiary to execute and deliver to Beneficiary or Trustee such further
instruments or documents as Beneficiary may reasonably deem necessary to
effectuate the terms of this SECTION 1.17(a).
(b) RESTRICTION ON USE OF SUBSIDIARY OR AFFILIATE. Except as permitted
under the Credit Agreement or the Loan Documents, Trustor shall not use any
Affiliate or Subsidiary in the operation of the Trust Estate, the Project, the
Leased Premises or the Easements if such use would in any way impair the
security for the Notes and the Credit Agreement or cause a breach of any
covenant of this Deed of Trust, the Credit Agreement or any other Loan
Documents.
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1.18 MERGER. So long as any of the Obligations have not been paid or
performed, unless Beneficiary shall otherwise in writing consent, the fee title
and the leasehold estate under the Casino Lease shall not merge but shall always
be kept separate and distinct, notwithstanding the union of said estates either
in the lessor or in the lessee, or in a third party, by purchase or otherwise;
and LVSI covenants and agrees that, if it shall acquire the fee title, or any
other estate, title or interest in the Casino Leased Premises covered by said
Casino Lease, this Deed of Trust shall be considered as mortgaged, assigned or
conveyed to the Beneficiary and the Lien hereof spread to cover such estate with
the same force and effect as though specifically herein mortgaged, assigned or
conveyed and spread. The provisions of this paragraph shall not apply if
Beneficiary shall so elect.
ARTICLE TWO
CORPORATE LOAN PROVISIONS
2.1 INTERACTION WITH CREDIT AGREEMENT.
(a) INCORPORATION BY REFERENCE. All terms, covenants, conditions,
provisions and requirements of the Credit Agreement are incorporated by
reference in this Deed of Trust.
(b) CONFLICTS. In the event of any conflict or inconsistency between the
provisions of this Deed of Trust and those of the Credit Agreement, the
provisions of the Credit Agreement shall govern.
2.2 OTHER COLLATERAL. This Deed of Trust is one of a number of Collateral
Documents to secure the Obligations delivered by or on behalf of Trustor
pursuant to the Credit Agreement and the other Loan Documents and securing the
Obligations secured hereunder. All potential junior Lien claimants are placed on
notice that, under any of the Loan Documents and any other documents granting a
security interest to the Beneficiary or otherwise (such as by separate future
unrecorded agreement between Trustor and Beneficiary), other collateral for the
Obligations secured hereunder (I.E., collateral other than the Trust Estate)
may, under certain circumstances, be released without a corresponding reduction
in the total principal amount secured by this Deed of Trust. Such a release
would decrease the amount of collateral securing the Obligations, thereby
increasing the burden on the remaining Trust Estate created and continued by
this Deed of Trust. No such release shall impair the priority of the Lien of
this Deed of Trust. By accepting its interest in the Trust Estate, each and
every junior Lien claimant shall be deemed to have acknowledged the possibility
of, and consented to, any such release. Nothing in this paragraph shall impose
any obligation upon Beneficiary.
ARTICLE THREE
DEFAULTS
3.1 EVENT OF DEFAULT. The term "EVENT OF DEFAULT," wherever used in this
Deed of Trust, shall mean any one or more of the events of default listed in
Section 8 of the Credit Agreement (whether any such event shall be voluntary or
involuntary or come about or be effected by
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operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body).
ARTICLE FOUR
REMEDIES
4.1 ACCELERATION OF MATURITY. If an Event of Default occurs, Beneficiary
may (except that such acceleration shall be automatic if the Event of Default is
caused by a Trustor's Bankruptcy, in accordance with subsections 8.6 and 8.7 of
the Credit Agreement) declare the Notes and all Obligations or sums secured
hereby, to be due and payable immediately, and upon such declaration such
principal and interest and other sums shall immediately become due and payable
without demand, presentment, notice or other requirements of any kind (all of
which Trustor waives) notwithstanding anything in this Deed of Trust or any Loan
Document or applicable law to the contrary.
4.2 PROTECTIVE ADVANCES. If Trustor fails to make any payment or perform
any other obligation under the Notes, the other Operative Documents or the
Resort Complex Operative Documents, then without thereby limiting Beneficiary's
other rights or remedies, waiving or releasing any of Trustor's obligations, or
imposing any obligation on Beneficiary, Beneficiary may either advance any
amount owing or perform any or all actions that Beneficiary considers necessary
or appropriate to cure such default. All such advances shall constitute
"PROTECTIVE ADVANCES." No sums advanced or performance rendered by Beneficiary
shall cure, or be deemed a waiver of any Event of Default.
4.3 INSTITUTION OF EQUITY PROCEEDINGS. If an Event of Default occurs,
Beneficiary may institute an action, suit or proceeding in equity for specific
performance of this Deed of Trust or the Loan Documents, all of which shall be
specifically enforceable by injunction or other equitable remedy. Trustor waives
any defense based on laches or any applicable statute of limitations.
4.4 BENEFICIARY'S POWER OF ENFORCEMENT.
(a) If an Event of Default occurs, Beneficiary shall be entitled, at its
option and in its sole and absolute discretion, to prepare and record on its own
behalf, or to deliver to Trustee for recording, if appropriate, written
declaration of default and demand for sale and written Notice of Default and
Election to Sell (NRS 107.080(3)) (or other statutory notice) to cause the Trust
Estate to be sold to satisfy the obligations hereof, and in the case of delivery
to Trustee, Trustee shall cause said notice to be filed for record.
(b) After the lapse of such time as may then be required by law following
the recordation of said Notice of Breach and Election to Sell, and notice of
sale having been given as then required by law, including compliance with all
applicable Nevada Gaming Laws, Trustee without demand on Trustor, shall sell the
Trust Estate or any portion thereof at the time and place fixed by it in said
notice, either as a whole or in separate parcels, and in such order as it may
determine, at public auction to the highest bidder, of cash in lawful money of
the United States payable at the time of sale. Trustee may, for any cause it
deems expedient, postpone the sale of
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all or any portion of said property until it shall be completed and, in every
case, notice of postponement shall be given by public announcement thereof at
the time and place last appointed for the sale and from time to time thereafter
Trustee may postpone such sale by public announcement at the time fixed by the
preceding postponement. Trustee shall execute and deliver to the purchaser its
Deed, Bill of Sale, or other instrument conveying said property so sold, but
without any covenant or warranty, express or implied. The recitals in such
instrument of conveyance of any matters or facts shall be conclusive proof of
the truthfulness thereof. Any Person, including Beneficiary, may bid at the
sale.
(c) After deducting all costs, fees and expenses of Trustee and of this
Deed of Trust, including, without limitation, costs of evidence of title and
reasonable attorneys' fees of Trustee or Beneficiary in connection with a sale,
Trustee shall apply the proceeds of such sale to payment of all sums expended
under the terms hereof not then repaid, with accrued interest at the Default
Rate to the payment of all other sums then secured hereby and the remainder, if
any, to the Person or Persons legally entitled thereto as provided in NRS
40.462.
(d) Subject to compliance with applicable Nevada Gaming Laws, if any
Event of Default occurs, Beneficiary may, either with or without entry or taking
possession of the Trust Estate, and without regard to whether or not the
Obligations and other sums secured hereby shall be due and without prejudice to
the right of Beneficiary thereafter to bring an action or proceeding to
foreclose or any other action for any default existing at the time such earlier
action was commenced, proceed by any appropriate action or proceeding: (1) to
enforce payment of the Notes, to the extent permitted by law, or the performance
of any term hereof or any other right; (2) to foreclose this Deed of Trust in
any manner provided by law for the foreclosure of mortgages or deeds of trust on
real property and to sell, as an entirety or in separate lots or parcels, the
Trust Estate or any portion thereof pursuant to applicable Legal Requirements or
under the judgment or decree of a court or courts of competent jurisdiction, and
Beneficiary shall be entitled to recover in any such proceeding all costs and
expenses incident thereto, including reasonable attorneys' fees in such amount
as shall be awarded by the court; (3) to exercise any or all of the rights and
remedies available to it under the Credit Agreement and the other Loan
Documents; and (4) to pursue any other remedy available to it. Beneficiary shall
take action either by such proceedings or by the exercise of its powers with
respect to entry or taking possession, or both, as Beneficiary may determine.
(e) The remedies described in this SECTION 4.4 may be exercised with
respect to all or any portion of the Personal Property, either simultaneously
with the sale of any real property encumbered hereby or independent thereof.
Beneficiary shall at any time be permitted to proceed with respect to all or any
portion of the Personal Property in any manner permitted by the UCC. Trustor
agrees that Beneficiary's inclusion of all or any portion of the Personal
Property (and all personal property that is subject to a security interest in
favor, or for the benefit, of Beneficiary) in a sale or other remedy exercised
with respect to the real property encumbered hereby, as permitted by the UCC, is
a commercially reasonable disposition of such property.
4.5 BENEFICIARY'S RIGHT TO ENTER AND TAKE POSSESSION, OPERATE AND APPLY
INCOME.
(a) Subject to compliance with applicable Nevada Gaming Laws, if an Event
of Default occurs, (i) Trustor, upon demand of Beneficiary, shall forthwith
surrender to Beneficiary the
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actual possession and, if and to the extent permitted by law, Beneficiary
itself, or by such officers or agents as it may appoint, may enter and take
possession of all the Trust Estate including the Personal Property, without
liability for trespass, damages or otherwise, and may exclude Trustor and its
agents and employees wholly therefrom and may have joint access with Trustor to
the books, papers and accounts of Trustor; and (ii) Trustor shall pay monthly in
advance to Beneficiary on Beneficiary's entry into possession, or to any
receiver appointed to collect the Rents, all Rents then due and payable.
(b) If Trustor shall for any reason fail to surrender or deliver the
Trust Estate, the Personal Property or any part thereof after Beneficiary's
demand, Beneficiary may obtain a judgment or decree conferring on Beneficiary or
Trustee the right to immediate possession or requiring Trustor to deliver
immediate possession of all or part of such property to Beneficiary or Trustee
and Trustor hereby specifically consents to the entry of such judgment or
decree. Trustor shall pay to Beneficiary or Trustee, upon demand, all reasonable
costs and expenses of obtaining such judgment or decree and reasonable
compensation to Beneficiary or Trustee, their attorneys and agents, and all such
costs, expenses and compensation shall, until paid, be secured by the Lien of
this Deed of Trust.
(c) Subject to compliance with applicable Nevada Gaming Laws, upon every
such entering upon or taking of possession, Beneficiary or Trustee may hold,
store, use, operate, manage and control the Trust Estate and conduct the
business thereof, and, from time to time in its sole and absolute discretion and
without being under any duty to so act:
(i) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures, personalty
and other property;
(ii) insure or keep the Trust Estate insured;
(iii) manage and operate the Trust Estate and exercise all the
rights and powers of Trustor in their name or otherwise with respect to the
same;
(iv) enter into agreements with others to exercise the powers
herein granted Beneficiary or Trustee, all as Beneficiary or Trustee from
time to time may determine; and, subject to the absolute assignment of the
Rents and Leases to Beneficiary, Beneficiary or Trustee may collect and
receive all the Rents, including those past due as well as those accruing
thereafter; and shall apply the monies so received by Beneficiary or
Trustee in such priority as Beneficiary may determine to (1) the payment of
interest and principal due and payable on the Notes, (2) the deposits for
Impositions and insurance premiums due, (3) the cost of insurance,
Impositions and other proper charges upon the Trust Estate or any part
thereof; (4) the compensation, expenses and disbursements of the agents,
attorneys and other representatives of Beneficiary or Trustee; and (5) any
other charges or costs required to be paid by Trustor under the terms
hereof; and
(v) rent or sublet the Trust Estate or any portion thereof for
any purpose permitted by this Deed of Trust.
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Beneficiary or Trustee shall surrender possession of the Trust Estate and
the Personal Property to Trustor only when all that is due upon such interest
and principal, Imposition and insurance deposits, and all amounts under any of
the terms of the Credit Agreement or this Deed of Trust, shall have been paid
and other Obligations performed. The same right of taking possession, however,
shall exist if any subsequent Event of Default shall occur and be continuing.
4.6 LEASES. Beneficiary is authorized to foreclose this Deed of Trust
subject to the rights of any tenants of the Trust Estate, and the failure to
make any such tenants parties defendant to any such foreclosure proceedings and
to foreclose their rights shall not be, nor be asserted by Trustor to be, a
defense to any proceedings instituted by Beneficiary to collect the sums secured
hereby or to collect any deficiency remaining unpaid after the foreclosure sale
of the Trust Estate, or any portion thereof. Unless otherwise agreed by
Beneficiary in writing, all Space Leases executed subsequent to the date hereof,
or any part thereof, shall be subordinate and inferior to the Lien of this Deed
of Trust; PROVIDED, HOWEVER, from time to time Beneficiary may execute and
record among the land records of the jurisdiction where this Deed of Trust is
recorded, subordination statements with respect to such of said Space Leases as
Beneficiary may designate in its sole discretion, whereby the Space Leases so
designated by Beneficiary shall be made superior to the Lien of this Deed of
Trust for the term set forth in such subordination statement. From and after the
recordation of such subordination statements, and for the respective periods as
may be set forth therein, the Space Leases therein referred to shall be superior
to the Lien of this Deed of Trust and shall not be affected by any foreclosure
hereof. All such Space Leases shall contain a provision to the effect that the
Trustor and Space Lessee recognize the right of Beneficiary to elect and to
effect such subordination of this Deed of Trust and consents thereto.
4.7 PURCHASE BY BENEFICIARY. Upon any foreclosure sale (whether judicial
or nonjudicial), Beneficiary may bid for and purchase the property subject to
such sale and, upon compliance with the terms of sale, may hold, retain and
possess and dispose of such property in its own absolute right without further
accountability.
4.8 WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION
LAWS. Trustor agrees to the full extent permitted by Legal Requirements that if
an Event of Default occurs, neither Trustor nor anyone claiming through or under
it shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Deed of Trust
or the absolute sale of the Trust Estate or any portion thereof or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereof, and Trustor for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such Legal Requirements, and any and all right to have
the assets comprising the Trust Estate marshalled upon any foreclosure of the
Lien hereof and agrees that Trustee or any court having jurisdiction to
foreclose such Lien may sell the Trust Estate in part or as an entirety.
4.9 RECEIVER. If an Event of Default occurs, Beneficiary, to the extent
permitted by law and subject to compliance with all applicable Nevada Gaming
Laws, and without regard to the value, adequacy or occupancy of the security for
the Obligations and other sums secured hereby,
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shall be entitled as a matter of right if it so elects to the appointment of a
receiver to enter upon and take possession of the Trust Estate and to collect
all Rents and apply the same as the court may direct, and such receiver may be
appointed by any court of competent jurisdiction upon application by
Beneficiary. Beneficiary may have a receiver appointed without notice to Trustor
or any third party, and Beneficiary may waive any requirement that the receiver
post a bond. Beneficiary shall have the power to designate and select the Person
who shall serve as the receiver and to negotiate all terms and conditions under
which such receiver shall serve. Any receiver appointed on Beneficiary's behalf
may be an Affiliate of Beneficiary. The expenses, including receiver's fees,
attorneys' fees, costs and agent's compensation, incurred pursuant to the powers
herein contained shall be secured by this Deed of Trust. The right to enter and
take possession of and to manage and operate the Trust Estate and to collect all
Rents, whether by a receiver or otherwise, shall be cumulative to any other
right or remedy available to Beneficiary under this Deed of Trust, the Credit
Agreement or otherwise available to Beneficiary and may be exercised
concurrently therewith or independently thereof. Beneficiary shall be liable to
account only for such Rents (including, without limitation, security deposits)
actually received by Beneficiary, whether received pursuant to this section or
any other provision hereof. Notwithstanding the appointment of any receiver or
other custodian, Beneficiary shall be entitled as pledgee to the possession and
control of any cash, deposits, or instruments at the time held by, or payable or
deliverable under the terms of this Deed of Trust to, Beneficiary.
4.10 SUITS TO PROTECT THE TRUST ESTATE. Beneficiary shall have the power
and authority to institute and maintain any suits and proceedings as
Beneficiary, in its sole and absolute discretion, may deem advisable (a) to
prevent any impairment of the Trust Estate by any acts which may be unlawful or
in violation of this Deed of Trust, (b) to preserve or protect its interest in
the Trust Estate, or (c) to restrain the enforcement of or compliance with any
Legal Requirement that may be unconstitutional or otherwise invalid, if the
enforcement of or compliance with such enactment, rule or order might impair the
security hereunder or be prejudicial to Beneficiary's interest.
4.11 PROOFS OF CLAIM. In the case of any receivership, Insolvency,
Bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Trustor, or, to the extent the same would result
in an Event of Default hereunder, any Subsidiary, or any guarantor, co-maker or
endorser of any of Trustor's obligations, its creditors or its property,
Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim or other documents as it may deem to be necessary or advisable
in order to have its claims allowed in such proceedings for the entire amount of
the Obligations, at the date of the institution of such proceedings, and for any
additional amounts which may become due and payable by Trustor after such date.
4.12 TRUSTOR TO PAY THE NOTES ON ANY DEFAULT IN PAYMENT; APPLICATION OF
MONIES BY BENEFICIARY.
(a) In case of a foreclosure sale of all or any part of the Trust Estate
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Beneficiary shall be entitled to enforce payment from Trustor of
any additional amounts then remaining due and unpaid and to recover judgment
against Trustor for any portion thereof remaining unpaid, with interest at the
Default Rate in accordance with SECTION 4.19 hereof.
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(b) Trustor hereby agrees to the extent permitted by law, that no
recovery of any such judgment by Beneficiary or other action by Beneficiary and
no attachment or levy of any execution upon any of the Trust Estate or any other
property shall in any way affect the Lien and security interest of this Deed of
Trust upon the Trust Estate or any part thereof or any Lien, rights, powers or
remedies of Beneficiary hereunder, but such Lien, rights, powers and remedies
shall continue unimpaired as before.
4.13 DELAY OR OMISSION; NO WAIVER. No delay or omission of Beneficiary to
exercise any right, power or remedy upon any Event of Default shall exhaust or
impair any such right, power or remedy or shall be construed to waive any such
Event of Default or to constitute acquiescence therein. Every right, power and
remedy given to Beneficiary whether contained herein or in the Credit Agreement
or otherwise available to Beneficiary may be exercised from time to time and as
often as may be deemed expedient by Beneficiary.
4.14 NO WAIVER OF ONE DEFAULT TO AFFECT ANOTHER. No waiver of any Event of
Default hereunder shall extend to or affect any subsequent or any other Event of
Default then existing, or impair any rights, powers or remedies consequent
thereon. If Beneficiary (a) grants forbearance or an extension of time for the
payment of any sums secured hereby; (b) takes other or additional security for
the payment thereof; (c) waives or does not exercise any right granted in the
Notes, the Credit Agreement, this Deed of Trust or any other Loan Document; (d)
releases any part of the Trust Estate from the Lien or security interest of this
Deed of Trust or any other instrument securing the Notes; (e) consents to the
filing of any map, plat or replat of the Site (to the extent such consent is
required); (f) consents to the granting of any easement on the Site, the Project
or the Improvements (to the extent such consent is required); or (g) makes or
consents to any agreement changing the terms of this Deed of Trust or any other
Loan Document for the benefit of Beneficiary subordinating the Lien or any
charge hereof, no such act or omission shall release, discharge, modify, change
or affect the original liability under the Notes, this Deed of Trust or any
other Loan Document for the benefit of Beneficiary or otherwise of Trustor, or
any subsequent purchaser of the Trust Estate or any part thereof or any maker,
co-signer, surety or guarantor. No such act or omission shall preclude
Beneficiary from exercising any right, power or privilege herein granted or
intended to be granted in case of any Event of Default then existing or of any
subsequent Event of Default, nor, except as otherwise expressly provided in an
instrument or instruments executed by Beneficiary, shall the Lien or security
interest of this Deed of Trust be altered thereby, except to the extent
expressly provided in any releases, maps, easements or subordinations described
in CLAUSE (d), (e), (f) or (g) above of this SECTION 4.14. In the event of the
sale or transfer by operation of law or otherwise of all or any part of the
Trust Estate, Beneficiary, without notice to any Person is hereby authorized and
empowered to deal with any such vendee or transferee with reference to the Trust
Estate or the Obligations secured hereby, or with reference to any of the terms
or conditions hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any of
the liabilities or undertakings hereunder, or waiving its right to declare such
sale or transfer an Event of Default as provided herein. Notwithstanding
anything to the contrary contained in this Deed of Trust or the other Loan
Documents, (i) in the case of any non-monetary Event of Default, Beneficiary may
continue to accept payments due hereunder without thereby waiving the existence
of such or any other Event of Default and (ii) in the case of any monetary Event
of Default, Beneficiary may accept partial payments of any sums due hereunder
without
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thereby waiving the existence of such Event of Default if the partial payment is
not sufficient to completely cure such Event of Default.
4.15 DISCONTINUANCE OF PROCEEDINGS; POSITION OF PARTIES RESTORED. If
Beneficiary shall have proceeded to enforce any right or remedy under this Deed
of Trust by foreclosure, entry of judgment or otherwise and such proceedings
shall have been discontinued or abandoned for any reason, or such proceedings
shall have resulted in a final determination adverse to Beneficiary, then and in
every such case Trustor and Beneficiary shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of
Beneficiary shall continue as if no such proceedings had occurred or had been
taken.
4.16 REMEDIES CUMULATIVE. No right, power or remedy, including without
limitation remedies with respect to any security for the Notes, conferred upon
or reserved to Beneficiary by this Deed of Trust or any other Loan Document is
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder or under any Loan Document,
now or hereafter existing at law, in equity or by statute, and Beneficiary shall
be entitled to resort to such rights, powers, remedies or security as
Beneficiary shall in its sole and absolute discretion deem advisable.
4.17 INTEREST AFTER EVENT OF DEFAULT. If an Event of Default shall have
occurred and is continuing, outstanding and unpaid Obligations under the Loan
Documents shall, at Beneficiary's option, bear interest at the Default Rate
until such Event of Default has been cured. Trustor's obligation to pay such
interest shall be secured by this Deed of Trust and the other Collateral
Documents.
4.18 FORECLOSURE; EXPENSES OF LITIGATION. If Trustee forecloses,
reasonable attorneys' fees for services in the supervision of said foreclosure
proceeding shall be allowed to the Trustee and Beneficiary as part of the
foreclosure costs. In the event of foreclosure of the Lien hereof, there shall
be allowed and included as additional Obligations all reasonable expenditures
and expenses which may be paid or incurred by or on behalf of Beneficiary for
attorneys' fees, appraiser's fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be estimated as
to items to be expended after foreclosure sale or entry of the decree) of
procuring all such abstracts of title, title searches and examinations, title
insurance policies and guarantees, and similar data and assurances with respect
to title as Beneficiary may deem reasonably advisable either to prosecute such
suit or to evidence to a bidder at any sale which may be had pursuant to such
decree the true condition of the title to or the value of the Trust Estate or
any portion thereof. All expenditures and expenses of the nature in this section
mentioned, and such expenses and fees as may be incurred if the protection of
the Trust Estate and the maintenance of the Lien and security interest of this
Deed of Trust, including the fees of any attorney employed by Beneficiary in any
litigation or proceeding affecting this Deed of Trust or any Loan Document, the
Trust Estate or any portion thereof, including, without limitation, civil,
probate, appellate and bankruptcy proceedings, or in preparation for the
commencement or defense of any proceeding or threatened suit or proceeding,
shall be immediately due and payable by Trustor, with interest thereon at the
Default Rate, and shall be secured by this Deed of Trust and the other
Collateral Documents. Trustee
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waives its right to any statutory fee in connection with any judicial or
nonjudicial foreclosure of the Lien hereof and agrees to accept a reasonable fee
for such services.
4.19 DEFICIENCY JUDGMENTS. If after foreclosure of this Deed of Trust or
Trustee's sale hereunder, there shall remain any deficiency with respect to any
amounts payable under the Notes or hereunder or any amounts secured hereby, and
Beneficiary shall institute any proceedings to recover such deficiency or
deficiencies, all such amounts shall continue to bear interest at the Default
Rate. Trustor waives any defense to Beneficiary's recovery against Trustor of
any deficiency after any foreclosure sale of the Trust Estate. Trustor expressly
waives any defense or benefits that may be derived from any statute granting
Trustor any defense to any such recovery by Beneficiary. In addition,
Beneficiary and Trustee shall be entitled to recovery of all of their reasonable
costs and expenditures (including without limitation any court imposed costs) in
connection with such proceedings, including their reasonable attorneys' fees,
appraisal fees and the other costs, fees and expenditures referred to in SECTION
4.18 above. This provision shall survive any foreclosure or sale of the Trust
Estate, any portion thereof and/or the extinguishment of the Lien hereof.
4.20 WAIVER OF JULY TRIAL. Beneficiary and Trustor each waive any right to
have a jury participate in resolving any dispute whether sounding in contract,
tort or otherwise arising out of, connected with, related to or incidental to
the relationship established between them in connection with the Notes, this
Deed of Trust or any other Loan Document. Any such disputes shall be resolved in
a bench trial without a jury.
4.21 EXCULPATION OF BENEFICIARY. The acceptance by Beneficiary of the
assignment contained herein with all of the rights, powers, privileges and
authority created hereby shall not, prior to entry upon and taking possession of
the Trust Estate by Beneficiary, be deemed or construed to make Beneficiary a
"mortgagee in possession"; nor thereafter or at any time or in any event
obligate Beneficiary to appear in or defend any action or proceeding relating to
the Space Leases, the Rents or the Trust Estate, or to take any action hereunder
or to expend any money or incur any expenses or perform or discharge any
obligation, duty or liability under any Space Lease or to assume any obligation
or responsibility for any security deposits or other deposits except to the
extent such deposits are actually received by Beneficiary, nor shall
Beneficiary, prior to such entry and taking, be liable in any way for any injury
or damage to person or property sustained by any Person in or about the Trust
Estate.
ARTICLE FIVE
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust, Trustor and
Beneficiary agree as follows.
5.1 EXERCISE OF REMEDIES BY TRUSTEE. To the extent that this Deed of
Trust or applicable law, including all applicable Nevada Gaming Laws, authorizes
or empowers, or does not require approval for, Beneficiary to exercise any
remedies set forth in ARTICLE 4 hereof or otherwise, or perform any acts in
connection therewith, Trustee (but not to the exclusion of Beneficiary unless
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so required under the law of the State) shall have the power to exercise any or
all such remedies, and to perform any acts provided for in this Deed of Trust in
connection therewith, all for the benefit of Beneficiary and on Beneficiary's
behalf in accordance with applicable law of the State. In connection therewith,
Trustee: (a) shall not exercise, or waive the exercise of, any Beneficiary's
remedies (other than any rights of Trustee to any indemnity or reimbursement),
except at Beneficiary's request, and (b) shall exercise, or waive the exercise
of, any or all of Beneficiary's remedies at Beneficiary's request, and in
accordance with Beneficiary's directions as to the manner of such exercise or
waiver. Trustee may, however, decline to follow Beneficiary's request or
direction if Trustee shall be advised by counsel that the action or proceeding,
or manner thereof, so directed may not lawfully be taken or waived.
5.2 RIGHTS AND PRIVILEGES OF TRUSTEE. To the extent that this Deed of
Trust requires Trustor to indemnify Beneficiary or reimburse Beneficiary for any
expenditures Beneficiary may incur, Trustee shall be entitled to the same
indemnity and the same rights to reimbursement of expenses as Beneficiary,
subject to such limitations and conditions as would apply in the case of
Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary's liability as to any matter, Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Trustor, pursuant to
this Deed of Trust, appoints Beneficiary as Trustor's attorney in fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Trustor's behalf without joinder or confirmation by the
other.
5.3 RESIGNATION OR REPLACEMENT OF TRUSTEE. Trustee may resign by an
instrument in writing addressed to Beneficiary, and Trustee may be removed at
any time with or without cause (i.e., in Beneficiary's sole and absolute
discretion) by an instrument in writing executed by Beneficiary. In case of the
death, resignation, removal or disqualification of Trustee or if for any reason
Beneficiary shall deem it desirable to appoint a substitute, successor or
replacement Trustee to act instead of Trustee originally named (or in place of
any substitute, successor or replacement Trustee), then Beneficiary shall have
the right and is hereby authorized and empowered to appoint a successor,
substitute or replacement Trustee, without any formality other than appointment
and designation in writing executed by Beneficiary, which instrument shall be
recorded if required by the law of the State. The laws of the State (including,
without limitation, the Nevada Gaming Laws) shall govern the qualification of
any Trustee. The authority conferred upon Trustee by this Deed of Trust shall
automatically extend to any and all other successor, substitute and replacement
Trustee(s) successively until the obligations secured hereunder have been paid
in full or the Trust Estate has been sold hereunder or released in accordance
with the provisions of the Loan Documents to which the Beneficiary is a party or
which grants a security for the benefit of the Beneficiary. Beneficiary's
written appointment and designation of any Trustee shall be full evidence of
Beneficiary's right and authority to make the same and of all facts therein
recited. No confirmation, authorization, approval or other action by Trustor
shall be required in connection with any resignation or other replacement of
Trustee.
5.4 AUTHORITY OF BENEFICIARY. If Beneficiary is a banking corporation,
state banking corporation or a national banking association and the instrument
of appointment of any successor or replacement Trustee is executed on
Beneficiary's behalf by an officer of such corporation, state banking
corporation or national banking association, then such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of Beneficiary.
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5.5 EFFECT OF APPOINTMENT OF SUCCESSOR TRUSTEE. Upon the appointment and
designation of any successor, substitute or replacement Trustee, and subject to
compliance with applicable Nevada Gaming Laws and other applicable Legal
Requirements, Trustee's entire estate and title in the Trust Estate shall vest
in the designated successor, substitute or replacement Trustee. Such successor,
substitute or replacement Trustee shall thereupon succeed to and shall hold,
possess and execute all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee. All references herein to Trustee shall be deemed
to refer to Trustee (including any successor or substitute appointed and
designated as herein provided) from time to time acting hereunder.
5.6 CONFIRMATION OF TRANSFER AND SUCCESSION. Upon the written request of
Beneficiary or of any successor, substitute or replacement Trustee, any former
Trustee ceasing to act shall execute and deliver an instrument transferring to
such successor, substitute or replacement Trustee all of the right, title,
estate and interest in the Trust Estate of Trustee so ceasing to act, together
with all the rights, powers, privileges, immunities and duties herein conferred
upon Trustee, and shall duly assign, transfer and deliver all properties and
moneys held by said Trustee hereunder to said successor, substitute or
replacement Trustee.
5.7 EXCULPATION. Trustee shall not be liable for any error of judgment or
act done by Trustee in good faith, or otherwise be responsible or accountable
under any circumstances whatsoever, except for Trustee's gross negligence,
willful misconduct or knowing violation of any Legal Requirement. Trustee shall
have the right to rely on any instrument, document or signature authorizing or
supporting any action taken or proposed to be taken by it hereunder, believed by
it in good faith to be genuine. All moneys received by Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from any other moneys
(except to the extent required by law). Trustee shall be under no liability for
interest on any moneys received by it hereunder.
5.8 ENDORSEMENT AND EXECUTION OF DOCUMENTS. Upon Beneficiary's written
request, Trustee shall, without liability or notice to Trustor, execute, consent
to, or join in any instrument or agreement in connection with or necessary to
effectuate the purposes of the Loan Documents to which the Beneficiary is a
party or which grants a security interest for the benefit of the Beneficiary.
Trustor hereby irrevocably designates Trustee as its attorney in fact to
execute, acknowledge and deliver, on Trustor's behalf and in Trustor's name, all
instruments or agreements necessary to implement any provision(s) of this Deed
of Trust or to further perfect the Lien created by this Deed of Trust on the
Trust Estate. This power of attorney shall be deemed to be coupled with an
interest and shall survive any disability of Trustor.
5.9 MULTIPLE TRUSTEES. If Beneficiary appoints multiple trustees, then
any Trustee, individually, may exercise all powers granted to Trustee under this
instrument, without the need for action by any other Trustee(s).
5.10 TERMS OF TRUSTEE'S ACCEPTANCE. Trustee accepts the trust created by
this Deed of Trust upon the following terms and conditions:
(a) DELEGATION. Trustee may exercise any of its powers through
appointment of attorney(s) in fact or agents.
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(b) COUNSEL. Trustee may select and employ legal counsel (including any
law firm representing Beneficiary). Trustor shall reimburse all reasonable legal
fees and expenses that Trustee may thereby incur.
(c) SECURITY. Trustee shall be under no obligation to take any action
upon any Event of Default unless furnished security or indemnity, in form
satisfactory to Trustee, against costs, expenses, and liabilities that Trustee
may incur.
(d) COSTS AND EXPENSES. Trustor shall reimburse Trustee, as part of the
Obligations secured hereunder, for all reasonable disbursements and expenses
(including reasonable legal fees and expenses and any expenses incurred by
Trustee in complying with the Nevada Gaming Laws and Gaming Licenses) incurred
by reason of and as provided for in this Deed of Trust, including any of the
foregoing incurred in Trustee's administering and executing the trust created by
this Deed of Trust and performing Trustee's duties and exercising Trustee's
powers under this Deed of Trust.
(e) RELEASE. Upon satisfaction of the conditions for reconveyance
contained in SECTION 6.10 hereof, Beneficiary shall request that Trustee release
this Deed of Trust and Trustee shall release this Deed of Trust and reconvey to
the Trust Estate in accordance with SECTION 6.10 hereof, PROVIDED, HOWEVER, that
Trustor shall pay all costs of recordation, if any, and all of Trustee's and
Beneficiary's costs and expenses in connection with such release, including, but
not limited to, reasonable attorneys' fees.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
6.1 HEIRS, SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. Whenever one of
the parties hereto is named or referred to herein, successors and assigns of
such party shall be included, and subject to the limitations set forth herein
and in the Credit Agreement, all covenants and agreements contained in this Deed
of Trust, by or on behalf of Trustor or Beneficiary shall bind and inure to the
benefit of its heirs, successors and assigns, whether so expressed or not.
6.2 ADDRESSES FOR NOTICES, ETC. Any notice, report, demand or other
instrument authorized or required to be given or furnished under this Deed of
Trust to Trustor or Beneficiary shall be deemed given or furnished (i) when
addressed to the party intended to receive the same, at the address of such
party set forth below, and delivered by hand at such address or (ii) three (3)
days after the same is deposited in the United States mail as first class
certified mail, return receipt requested, postage paid, whether or not the same
is actually received by such party:
Beneficiary: The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, California 94104
Attention: Mr. Alan Pendergast
Telefax: (415) 397-0791
With a copy to: The Bank of Nova Scotia
Loan Administration
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600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Robert Ivy
Telefax: (404) 888-8998
With a copy to: Mayer, Brown, Rowe & Maw
1675 Broadway
New York, New York 10019
Attention: Douglas L. Wisner, Esq.
Trustor: Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South, Room 1C
Las Vegas, Nevada 89109
Attention: General Counsel
Telefax: (702) 733-5499
Las Vegas Sands, Inc.
3355 Las Vegas Boulevard South, Room 1A
Las Vegas, Nevada 89109
Telefax: (702) 733-5499
Trustee: First American Title Insurance Company
180 Cassia Way,
Suite 502
Henderson, Nevada 89104
6.3 CHANGE OF NOTICE ADDRESS. Any Person may change the address to which
any such notice, report, demand or other instrument is to be delivered or mailed
to that person, by furnishing written notice of such change to the other
parties, but no such notice of change shall be effective unless and until
received by such other parties.
6.4 HEADINGS. The headings of the articles, sections, paragraphs and
subdivisions of this Deed of Trust are for convenience of reference only, are
not to be considered a part hereof, and shall not limit or expand or otherwise
affect any of the terms hereof.
6.5 INVALID PROVISIONS TO AFFECT NO OTHERS. In the event that any of the
covenants, agreements, terms or provisions contained herein or in the Notes, the
Credit Agreement or any other Loan Document shall be invalid, illegal or
unenforceable in any respect, the validity of the Lien hereof and the remaining
covenants, agreements, terms or provisions contained herein or in the Notes, the
Credit Agreement or any other Loan Document shall be in no way affected,
prejudiced or disturbed thereby. To the extent permitted by law, Trustor waives
any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
6.6 CHANGES AND PRIORITY OVER INTERVENING LIENS. Neither this Deed of
Trust nor any term hereof may be changed, waived, discharged or terminated
orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. Any agreement hereafter made by
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Trustor and Beneficiary relating to this Deed of Trust shall be superior to the
rights of the holder of any intervening Lien or encumbrance.
6.7 ESTOPPEL CERTIFICATES. Within ten (10) Business Days after
Beneficiary's written request, Trustor shall from time to time execute a
certificate, in recordable form (an "ESTOPPEL CERTIFICATE"), stating, except to
the extent it would be inaccurate to so state: (a) the current amount of the
Obligations secured hereunder and all elements thereof, including principal,
interest, and all other elements; (b) that Trustor has no defense, offset,
claim, counterclaim, right of recoupment, deduction, or reduction against any of
the Obligations secured hereunder; (c) that none of the Loan Documents to which
the Beneficiary is a party or which grants a security interest for the benefit
of the Beneficiary have been amended, whether orally or in writing; (d) that
Trustor has no claims against Beneficiary of any kind; (e) that any Power of
Attorney granted to Beneficiary is in full force and effect; and (f) such other
matters relating to this Deed of Trust, any Loan Document to which the
Beneficiary is a party or which grants a security interest for the benefit of
the Beneficiary and the relationship of Trustor and Beneficiary as Beneficiary
shall request. In addition, the Estoppel Certificate shall set forth the reasons
why it would be inaccurate to make any of the foregoing assurances ("a" through
"f").
6.8 WAIVER OF SETOFF AND COUNTERCLAIM. All amounts due under this Deed of
Trust, the Notes or any other Loan Document to which the Beneficiary is a party
or which grants a security interest for the benefit of the Beneficiary shall be
payable without setoff, counterclaim or any deduction whatsoever. Trustor hereby
waives the right to assert a counterclaim (other than a compulsory counterclaim)
in any action or proceeding brought against it by Beneficiary and/or any Lender
under the Credit Agreement, or arising out of or in any way connected with this
Deed of Trust, or the other Loan Documents, to which the Beneficiary is a party
or which grants a security interest for the benefit of the Beneficiary or the
Obligations.
6.9 GOVERNING LAW. The Credit Agreement and the Notes provide that they
are governed by, and construed and enforced in accordance with, the laws of the
State of New York. This Deed of Trust shall also be construed under and governed
by the laws of the State of New York without giving effect to the conflicts of
law rules and principles of New York; provided, however, that (i) the terms and
provisions of this Deed of Trust pertaining to the priority, perfection,
enforcement or realization by Beneficiary of its respective rights and remedies
under this Deed of Trust with respect to the Trust Estate shall be governed and
construed and enforced in accordance with the internal laws of the State without
giving effect to the conflicts-of-law rules and principles of the State; (ii)
Trustor agrees that to the extent deficiency judgments are available under the
laws of the State after a foreclosure (judicial or nonjudicial) of the Trust
Estate, or any portion thereof, or any other realization thereon by Beneficiary
or any Lender under the Credit Agreement, Beneficiary or such Lender, as the
case may be, shall have the right to seek such a deficiency judgment against
Trustor in the State; and (iii) Trustor agrees that if Beneficiary or any Lender
under the Credit Agreement obtains a deficiency judgment in another state
against Trustor, then Beneficiary or such Lender, as the case may be, shall have
the right to enforce such judgment in the State to the extent permitted under
the laws of the State, as well as in other states. Nothing contained in this
Section 6.9 shall be deemed to expand the limitations set forth in Section 10.16
of the Credit Agreement.
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6.10 RECONVEYANCE. In the event that (i) the Obligations are indefeasibly
repaid in full, (ii) any part of the Trust Estate is sold, transferred or
otherwise disposed of by Trustor in accordance with the Credit Agreement or (ii)
any part of the Trust Estate is otherwise released in accordance with the Credit
Agreement or with the consent of the Requisite Lenders, the Trust Estate (in the
case of clause (i) of this Section) or portion thereof (in the case of clauses
(ii) or (iii) of this Section) will be sold, transferred or otherwise disposed
of, and released free and clear of the Liens created by this Deed of Trust and
the Beneficiary, at the request and expense of the Trustor, will duly and
promptly assign, transfer, deliver and release to the Trustor or its designee
(without recourse and without any representation or warranty) such of the Trust
Estate as is then being (or has been) so sold, transferred or otherwise disposed
of or released. In connection with any disposition or release pursuant to this
Section 6.10, Beneficiary shall, at Trustor's expense, cause Trustee to
reconvey, without warranty the Trust Estate or portion thereof being disposed or
released, as the case may be, and to execute and deliver to Trustor such
documents (including UCC-3 termination statements) as Trustor may reasonably
request. The recitals in such reconveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof. The grantee in such reconveyance
may be described as "the person or persons legally entitled thereto."
6.11 ATTORNEYS' FEES. Without limiting any other provision contained
herein, Trustor agrees to pay all costs of Beneficiary or Trustee incurred in
connection with the enforcement of this Deed of Trust of the Notes, including
without limitation all reasonable attorneys' fees whether or not suit is
commenced, and including, without limitation, fees incurred in connection with
any probate, appellate, bankruptcy, deficiency or any other litigation
proceedings, all of which sums shall be secured hereby.
6.12 LATE CHARGES. By accepting payment of any sum secured hereby after
its due date, Beneficiary does not waive its right to collect any late charge
thereon or interest thereon at the interest rate on the Notes, if so provided,
not then paid or its right either to require prompt payment when due of all
other sums so secured or to declare default for failure to pay any amounts not
so paid.
6.13 COST OF ACCOUNTING. Trustor shall pay to Beneficiary, for and on
account of the preparation and rendition of any accounting, which Trustor may be
entitled to require under any law or statute now or hereafter providing
therefor, the reasonable costs thereof.
6.14 RIGHT OF ENTRY. Subject to compliance with applicable Nevada Gaming
Laws and the terms of the Space Leases, Beneficiary may at any reasonable time
or times and on reasonable prior written notice to Trustor make or cause to be
made entry upon and inspections of the Trust Estate or any part thereof in
person or by agent.
6.15 CORRECTIONS. Trustor shall, upon request of Beneficiary or Trustee,
promptly correct any defect, error or omission which may be discovered in the
contents of this Deed of Trust (including, but not limited to, in the exhibits
and schedules attached hereto) or in the execution or acknowledgement hereof,
and shall execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by Trustee to
carry out more effectively the purposes of this Deed of Trust, to subject to the
Lien and security
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interest hereby created any of Trustor's properties, rights or interest covered
or intended to be covered hereby, and to perfect and maintain such Lien and
security interest.
6.16 STATUTE OF LIMITATIONS. To the fullest extent allowed by the law, the
right to plead, use or assert any statute of limitations as a plea or defense or
bar of any kind, or for any purpose, to any debt, demand or obligation secured
or to be secured hereby, or to any complaint or other pleading or proceeding
filed, instituted or maintained for the purpose of enforcing this Deed of Trust
or any rights hereunder, is hereby waived by Trustor.
6.17 SUBROGATION. Should the proceeds of any Loan or advance made by
Beneficiary to Trustor, repayment of which is hereby secured, or any part
thereof, or any amount paid out or advanced by Beneficiary, be used directly or
indirectly to pay off, discharge, or satisfy, in whole or in part, any prior or
superior Lien or encumbrance upon the Trust Estate, or any part thereof, then,
as additional security hereunder, Trustee, on behalf of Beneficiary, shall be
subrogated to any and all rights, superior titles, Liens, and equities owned or
claimed by any owner or holder of said outstanding Liens, charges, and
indebtedness, however remote, regardless of whether said Liens, charges, and
indebtedness are acquired by assignment or have been released of record by the
holder thereof upon payment.
6.18 JOINT AND SEVERAL LIABILITY. All obligations of Trustor hereunder, if
more than one, are joint and several. Recourse for deficiency after sale
hereunder may be had against the property of Trustor, without, however, creating
a present or other Lien or charge thereon.
6.19 HOMESTEAD. Trustor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Trust Estate as against the collection of the
Obligations, or any part hereof.
6.20 CONTEXT. In this Deed of Trust, whenever the context so requires, the
neuter includes the masculine and feminine, and the singular including the
plural, and vice versa.
6.21 TIME. Time is of the essence of each and every term, covenant and
condition hereof. Unless otherwise specified herein, any reference to "days" in
this Deed of Trust shall be deemed to mean "calendar days."
6.22 INTERPRETATION. As used in this Deed of Trust unless the context
clearly requires otherwise: The terms "herein" or "hereunder" and similar terms
without reference to a particular section shall refer to the entire Deed of
Trust and not just to the section in which such terms appear.
[6.23 EFFECT OF NRS SECTION 107.030. To the extent not inconsistent
herewith, the provisions of NRS Section 107.030 are included herein by
reference.](1)
6.24 AMENDMENTS. This Deed of Trust cannot be waived, changed, discharged
or terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, discharge or termination is
sought and only as permitted by the provisions of the Credit Agreement.
- ----------
(1) Confirm statutory reference.
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6.25 NO CONFLICTS. In the event that any of the provisions contained
herein conflict with the Security Agreement, then the provisions contained in
the Security Agreement shall prevail.
ARTICLE SEVEN
POWER OF ATTORNEY
7.1 GRANT OF POWER. Subject to compliance with applicable Nevada Gaming
Laws, Trustor irrevocably appoints Beneficiary and any successor thereto as its
attorney-in-fact, with full power and authority, including the power of
substitution, exercisable only during the continuance of an Event of Default to
act for Trustor in its name, place and stead as hereinafter provided:
7.1.1 POSSESSION AND COMPLETION. To take possession of the Site, the
Project and the Improvements, remove all employees, contractors and agents of
Trustor therefrom, complete or attempt to complete the work of construction, and
market, sell or lease the Site, the Project and the Improvements.
7.1.2 PLANS. To make such additions, changes and corrections in the current
Phase I-A Project Plans and Specifications as may be necessary or desirable, in
Beneficiary's reasonable discretion, or as it deems proper to complete the Phase
I-A Project.
7.1.3 EMPLOYMENT OF OTHERS. To employ such contractors, subcontractors,
suppliers, architects, inspectors, consultants, property managers and other
agents as Beneficiary, in its discretion, deems proper for the completion of the
Phase I-A Project, for the protection or clearance of title to the Site, the
Project or the Improvements, or for the protection of Beneficiary's interests
with respect thereto.
7.1.4 SECURITY GUARDS. To employ watchmen to protect the Site, the Project
and the Improvements from injury.
7.1.5 COMPROMISE CLAIMS. To pay, settle or compromise all bills and claims
then existing or thereafter arising against Trustor, which Beneficiary, in its
discretion, deems proper for the protection or clearance of title to the Site,
the Project, the Improvements or Personal Property, or for the protection of
Beneficiary's interests with respect thereto.
7.1.6 LEGAL PROCEEDINGS. To prosecute and defend all actions and
proceedings in connection with the Site, the Project or the Improvements.
7.1.7 OTHER ACTS. To execute, acknowledge and deliver all other instruments
and documents in the name of Trustor that are necessary or desirable, to
exercise Trustor's rights under all contracts concerning the Site, the Project
or the Improvements, including, without limitation, under any Space Leases, and
to do all other acts with respect to the Site, the Project or the Improvements
that Trustor might do on its own behalf, as Beneficiary, in its reasonable
discretion, deems proper.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust, Leasehold Deed
of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing
to be effective as of the day and year first above written.
VENETIAN CASINO RESORT, LLC, a Nevada
limited liability company, as Trustor
By: Las Vegas Sands, Inc., its managing member
By: /s/ Harry Miltenberger
------------------------------------------
Name: Harry Miltenberger
Title: Vice President Finance
S-1
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LAS VEGAS SANDS, INC. a Nevada corporation
By: /s/ Harry Miltenberger
------------------------------------------
Name: Harry Miltenberger
Title: Vice President Finance
S-2
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State of New York )
County of __________ ) ss.:
On the 3rd day of June in the year 2002 before me, the undersigned,
personally appeared Harry Miltenberger, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Dawn Schoenig
---------------------------------------
(Signature and office of individual taking
acknowledgment)
Notarial Seal
N-1
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State of New York )
County of __________ ) ss.:
On the 3rd day of June in the year 2002 before me, the undersigned,
personally appeared Harry Miltenberger, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Dawn Schoenig
---------------------------------------
(Signature and office of individual taking
acknowledgment)
Notarial Seal
N-2