Exhibit 4.11
[NEVADA]
AP Nos. 007-271-02, 007-271-03,
007-271-04, 007-271-05, 007-271-06,
007-271 07, 007-271-08, 007-271-09,
007-271-10, 007-271-11 and 007-271-13
After recording, please return to:
Athy A. Mobilia, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
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FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF
LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
BY
GOLD DUST WEST CASINO, INC.,
a Nevada corporation,
as Trustor,
TO
FIRST AMERICAN TITLE COMPANY OF NEVADA,
a Nevada corporation,
as Trustee under this instrument,
for the benefit of
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee under the Indenture referred to herein,
as Beneficiary
Securing Principal Indebtedness of $125,000,000;
Dated as of February 22, 2002
Relating to Premises in:
Washoe County, Nevada
TABLE OF CONTENTS
Page
PREAMBLE ..................................................................... 1
RECITALS ..................................................................... 1
AGREEMENT .................................................................... 2
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions ................................................ 3
SECTION 1.2 Interpretation ............................................. 9
SECTION 1.3 Resolution of Drafting Ambiguities ......................... 9
ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Trust Property .................................... 10
SECTION 2.2 Assignment of Leases and Rents ............................. 11
SECTION 2.3 Secured Obligations ........................................ 11
SECTION 2.4 Future Advances ............................................ 11
SECTION 2.5 No Release ................................................. 12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRUSTOR
SECTION 3.1 Authority and Validity ..................................... 12
SECTION 3.2 Warranty of Title .......................................... 13
SECTION 3.3 Condition of Trust Property ................................ 14
SECTION 3.4 Leases ..................................................... 15
SECTION 3.5 Insurance .................................................. 16
SECTION 3.6 Charges .................................................... 16
SECTION 3.7 Environmental .............................................. 17
SECTION 3.8 No Conflicts, Consents, etc ................................ 17
SECTION 3.9 Benefit to the Trustor ..................................... 18
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ARTICLE IV
CERTAIN COVENANTS OF TRUSTOR
SECTION 4.1 Preservation of Corporate Existence ............................. 18
SECTION 4.2 Title ........................................................... 18
SECTION 4.3 Maintenance and Use of Trust Property; Alterations .............. 19
SECTION 4.4 Notices Regarding Certain Defaults .............................. 20
SECTION 4.5 Access to Trust Property, Books and Records; Other Information .. 20
SECTION 4.6 Limitation on Liens; Transfer Restrictions ...................... 21
SECTION 4.7 Environmental ................................................... 21
SECTION 4.8 Estoppel Certificates ........................................... 22
ARTICLE V
LEASES
SECTION 5.1 Trustor's Affirmative Covenants with Respect to Leases .......... 23
SECTION 5.2 Trustor's Negative Covenants with Respect to Leases ............. 23
SECTION 5.3 Additional Requirements with Respect to New Leases .............. 24
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Trustor ...................... 24
SECTION 6.2 Collection of Rents by the Beneficiary .......................... 25
SECTION 6.3 No Release ...................................................... 25
SECTION 6.4 Irrevocable Interest ............................................ 25
SECTION 6.5 Amendment to Leases ............................................. 25
ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges .............................................. 26
SECTION 7.2 Escrow of Taxes ................................................. 26
SECTION 7.3 Certain Statutory Liens ......................................... 26
SECTION 7.4 Stamp and Other Taxes ........................................... 26
SECTION 7.5 Certain Tax Law Changes ......................................... 27
SECTION 7.6 Proceeds of Tax Claim ........................................... 27
ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages ....................... 27
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Page
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SECTION 8.2 Delivery After Foreclosure ............................................ 27
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens ....................... 28
SECTION 9.2 Contesting of Insurance ............................................... 28
ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10.1 Destruction ........................................................... 28
SECTION 10.2 Condemnation .......................................................... 28
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default ..................................................... 29
SECTION 11.2 Remedies in Case of an Event of Default ............................... 29
SECTION 11.3 Sale of Trust Property if Event of Default Occurs; Proceeds of Sale ... 30
SECTION 11.4 Additional Remedies in Case of an Event of Default .................... 32
SECTION 11.5 Legal Proceedings After an Event of Default ........................... 33
SECTION 11.6 Remedies Not Exclusive ................................................ 34
SECTION 11.7 Sale of Trust Lease ................................................... 34
ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement .................................................... 34
SECTION 12.2 Fixture Filing ........................................................ 35
ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security ............................ 36
SECTION 13.2 Further Acts .......................................................... 36
SECTION 13.3 Additional Security ................................................... 36
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Owned Premises and Leased Premises ...... 37
SECTION 14.2 No Merger ......................................................... 37
SECTION 14.3 Concerning Beneficiary and Trustee ................................ 37
SECTION 14.4 Beneficiary May Perform; Beneficiary Appointed Attorney-in-Fact ... 38
SECTION 14.5 Expenses .......................................................... 38
SECTION 14.6 Indemnity ......................................................... 39
SECTION 14.7 Continuing Security Interest; Assignment .......................... 40
SECTION 14.8 Termination; Release .............................................. 40
SECTION 14.9 Modification in Writing ........................................... 40
SECTION 14.10 Notices ........................................................... 40
SECTION 14.11 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY
TRIAL .......................................................... 41
SECTION 14.12 Severability of Provisions ........................................ 41
SECTION 14.13 Limitation on Interest Payable .................................... 41
SECTION 14.14 Business Days ..................................................... 42
SECTION 14.15 Relationship ...................................................... 42
SECTION 14.16 Waiver of Stay .................................................... 42
SECTION 14.17 No Credit for Payment of Taxes or Impositions ..................... 43
SECTION 14.18 No Claims Against the Beneficiary ................................. 43
SECTION 14.19 Obligations Absolute .............................................. 43
SECTION 14.20 Last Dollars Secured .............................................. 44
SECTION 14.21 Trustee Provisions ................................................ 44
SECTION 14.22 Trust Lease ....................................................... 46
SIGNATURE
ACKNOWLEDGMENT
SCHEDULE A Legal Description
SCHEDULE B Prior Liens
SCHEDULE C Leases
EXHIBIT 1 Form of Subordination, Non-Disturbance
and Attornment Agreement
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FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
FEE AND LEASEHOLD DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (as amended, amended and restated, supplemented, or
otherwise modified from time to time, the "Deed of Trust"), dated as of February
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22, 2002, made by GOLD DUST WEST CASINO, INC., a Nevada corporation, having an
office at 444 Vine Street, Reno, Nevada 89505, as trustor, assignor and debtor
(in such capacities and together with any successors in such capacities, the
"Trustor"), to FIRST AMERICAN TITLE COMPANY OF NEVADA, a Nevada corporation, as
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trustee under this Deed of Trust (together with any successors in such capacity,
"Trustee") in favor of WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association having an office at 213 Court Street, Suite 902,
Middletown, CT 06457, in its capacity as trustee pursuant to the Indenture (as
hereinafter defined), as beneficiary, assignee and secured party (in such
capacities and together with any successors in such capacities, the
"Beneficiary").
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R E C I T A L S :
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A. Gameco, Inc. (the "Issuer"), certain of its Subsidiaries (as
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hereinafter defined), the Trustor and the Beneficiary have, in connection with
the execution and delivery of this Deed of Trust, entered into that certain
indenture, dated as of February 8, 2002 (as amended, amended and restated,
supplemented, or otherwise modified from time to time, the "Indenture"),
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pursuant to which the Issuer has issued its 11 7/8% senior secured notes due
2009 (the "Senior Secured Notes") in the aggregate principal amount of
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$125,000,000. It is contemplated that the Issuer may, after the date hereof,
issue Additional Notes (as defined in the Indenture) and Exchange Notes (as
defined in the Indenture); the Exchange Notes, together with the Additional
Notes and the Senior Secured Notes, the "Notes"), in each case, pursuant to the
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provisions of the Indenture.
B. The Issuer owns, directly or through its Subsidiaries, all of the
issued and outstanding shares of the Trustor.
C. The Trustor has, pursuant to the Indenture, among other things,
unconditionally guaranteed (the "Guarantee") the obligations of the Issuer under
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the Indenture and the Notes.
D. The Trustor will receive substantial benefits from the execution and
delivery of, and the performance of the obligations under, the Indenture and the
Notes, and is therefore willing to enter into this Deed of Trust.
E. The Trustor is or will be the legal owner of the Trust Property (as
hereinafter defined) pledged by it hereunder.
F. The Trustor is the legal owner and holder of the tenant's interest
under that certain lease, dated as of November 24, 1975 between Chester J.
Piazzo, Darlene Piazzo, Lincoln E. Piazzo and Helen J. Piazzo as lessors, and
John E. Cavanaugh and Barbara A. Cavanaugh as lessees, (the "Original Lease"),
as disclosed by a Memorandum of Lease recorded on November 25, 1975 in Book 932
at Page 820 as Document No. 386577 in the Official Records of Washoe County,
Nevada (the "Official Records"), and as amended by an Addendum to Lease recorded
in the Official Records on July 26, 1977 in
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Book 1108 at Page 339 as Document No. 478005, a Supplement to Lease recorded in
the Official Records on July 26, 1977 in Book 1108 at Page 351 as Document No.
478006, an Amendment to Lease recorded in the Official Records on July 26, 1977
in Book 1108 at Page 355 as Document No. 478007, a document dated as of July 22,
1977 and entitled "Agreement," recorded in the Official Records on July 26, 1977
in Book 1108 at Page 358 as Document No. 478008, with the Lessor recognized as
the successor in interest to the original lessors under the Original Lease (as
amended) pursuant to a Letter Agreement dated July 8,1988, by William C.
Sanford, Jr. addressed to John E. Cavanaugh and Barbara A. Cavanaugh, and with
all interest of Lincoln E. Piazzo and Helen J. Piazzo in the premises demised
under the Original Lease having been conveyed to Chester J. Piazzo and Darlene
Piazzo pursuant to that certain Deed recorded in the Official Records on
September 26, 1984 in Book 2071 at Page 0558 as Document No. 952043; all
interest of Chester J. Piazzo and Darlene Piazzo in the premises demised under
the Original Lease having been conveyed to Chester J. Piazzo and Darlene Piazzo
as Co-Trustees of the C. & D. Piazzo Family Trust (collectively with their
successors and assigns in such capacity, the "Lessor"), pursuant to that certain
Grant Deed recorded in the Official Records on February 12, 1992 in Book 3417 at
Page 0325 as Document No. 1545623; all interest of Barbara A. Cavanaugh as a
lessee under the Original Lease, as it had then been amended, having been
assigned to John E. Cavanaugh pursuant to an Assignment of Lease recorded in the
Official Records on November 8, 1991 in Book 3360 at Page 364 as Document No.
1522682; all interest of Leslie A. Cavanaugh in and to the Original Lease, as it
had then been amended, having been assigned to John E. Cavanaugh pursuant to
that certain Assignment of Lease, Option, and Right of First Refusal dated July
17, 2000 and recorded September 5, 2000 in the Official Records as Document No.
2479631; all interest of John E. Cavanaugh as lessee under the Original Lease,
as it had then been amended, having been assigned to Black Hawk Gaming &
Development Company, Inc., a Colorado corporation pursuant to that certain
Assignment of Lease, Option and Right of First Refusal recorded in the Official
Records on January 4, 2001 as Document No. 2512899, and all interest of Black
Hawk Gaming & Development Company, Inc., as lessee under the Original Lease, as
it had then been amended, having been assigned to the Trustor, as tenant,
pursuant to that certain Assignment of Lease, Option and Right of First Refusal
recorded in the Official Records on January 4, 2001 as Document No. 2512900 (as
such lease may be amended from time to time in accordance with the provisions of
this Deed of Trust, the "Trust Lease"), which affects the Leased Land (as
hereinafter defined).
G. This Deed of Trust is given by the Trustor for the benefit of the
Beneficiary (for the ratable benefit of the Secured Parties (as hereinafter
defined), pursuant to the Indenture) to secure the payment and performance of
all of the Secured Obligations (as hereinafter defined).
A G R E E M E N T:
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NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Trustor hereby covenants and agrees with the Trustee for the
benefit of the Beneficiary (for the ratable benefit of the Secured Parties) as
follows:
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions. Capitalized terms used but not otherwise defined
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herein shall have the meanings assigned to such terms in the Indenture. The
following terms used in this Deed of Trust shall have the following meanings:
"ACM" shall have the meaning assigned to such term in Section 4.7(ii)
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hereof.
"Affiliate" shall have the meaning assigned to such term in the Indenture.
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"Alteration" shall mean any and all alterations, installations,
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improvements, additions, modifications or changes of a structural nature of or
to the Owned Premises or the Leased Premises.
"Beneficiary" shall have the meanings assigned to such term in the Preamble
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hereof.
"Business Day" shall have the meaning assigned to such term in the
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Indenture.
"Charges" shall mean any and all real estate, property and other taxes,
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assessments and special assessments, levies, fees, all water and sewer rents and
charges and all other governmental charges or Liens imposed upon or assessed
against, and all claims (including, without limitation, landlords', carriers',
mechanics', workmen's, repairmen's, laborers', materialmen's, suppliers' and
warehousemen's Liens and other claims arising by operation of law) against, all
or any portion of the Trust Property.
"Collateral Account" shall have the meaning assigned to such term in the
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Indenture.
"Collateral Documents" shall have the meaning assigned to such term in the
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Indenture.
"Contested Liens" shall mean, collectively, any Liens incurred in respect
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of any Charges to the extent that the amounts owing in respect thereof are not
yet delinquent or are being contested and otherwise comply with the provisions
of Section 9.1 hereof.
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"Contracts" shall mean, collectively, any and all right, title and interest
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of the Trustor in and to any and all contracts and other general intangibles
relating to the Trust Property (including, without limitation, all reciprocal
easements and/or operating agreements, covenants, conditions and restrictions
and similar agreements affecting all or any portion of the Trust Property) and
all reserves, deferred payments, deposits, refunds and claims of every kind,
nature or character relating thereto.
"Deed of Trust" shall have the meaning assigned to such term in the
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Preamble hereof.
"Default Rate" shall mean the rate per annum equal to the highest rate then
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payable under the Indenture.
"Destruction" shall mean any and all damage to, or loss or destruction of,
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the Owned Premises or Leased Premises or any part thereof.
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"Environmental Law" shall mean any applicable federal, state, local or
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municipal statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment binding on the
Trustor, relating to pollution or protection of the environment, or health or
safety including, without limitation, any relating to the release or threatened
release of any Hazardous Materials.
"Event of Default" shall have the meaning assigned to such term in the
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Indenture.
"Fixture" shall mean (1) all machinery, apparatus, equipment, fittings,
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fixtures, improvements and articles of personal property of every kind,
description and nature whatsoever now or hereafter attached or affixed to the
Owned Land or any other Improvement or used in connection with the use and
enjoyment of the Owned Land or any other Improvement or the maintenance or
preservation thereof, which by the nature of their location thereon or
attachment thereto are fixtures under the UCC or any other applicable law
including, without limitation, all utility systems, fire sprinkler and security
systems, drainage facilities, lighting facilities, all water, sanitary and storm
sewer, drainage, electricity, steam, gas, telephone and other utility equipment
and facilities, pipes, fittings and other items of every kind and description
now or hereafter attached to or located on the Owned Land which by the nature of
their location thereon or attachment thereto are real property under applicable
law, HVAC equipment, boilers, electronic data processing, telecommunications or
computer equipment, refrigeration, electronic monitoring, water or lighting
systems, power, sanitation, waste removal, elevators, maintenance or other
systems or equipment and all additions thereto and betterments, renewals,
substitutions and replacements thereof and (2) all of the Trustor's estate,
right, title and interest in, to and under all machinery, apparatus, equipment,
fittings, fixtures, improvements and articles of personal property of every
kind, description and nature whatsoever now or hereafter attached or affixed to
the Leased Land or any other Improvement or used in connection with the use and
enjoyment of the Leased Land or any other Improvement or the maintenance or
preservation thereof, which by the nature of their location thereon or
attachment thereto are fixtures under the UCC or any other applicable law
including, without limitation, all utility systems, fire sprinkler and security
systems, drainage facilities, lighting facilities, all water, sanitary and storm
sewer, drainage, electricity, steam, gas, telephone and other utility equipment
and facilities, pipes, fittings and other items of every kind and description
now or hereafter attached to or located on the Leased Land which by the nature
of their location thereon or attachment thereto are real property under
applicable law, HVAC equipment, boilers, electronic data processing,
telecommunications or computer equipment, refrigeration, electronic monitoring,
water or lighting systems, power, sanitation, waste removal, elevators,
maintenance or other systems or equipment and all additions thereto and
betterments, renewals, substitutions and replacements thereof to the extent of
the Trustor's estate, right, title and interest therein.
"Governmental Authority" shall mean any federal, state, local, foreign or
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other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
or any officer or official thereof, having jurisdiction over the Trustor or the
Trust Property or any portion thereof.
"Guarantee" shall have the meaning assigned to such term in Recital C
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hereof.
"Guarantors" shall have the meaning assigned to such term in the
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Indenture.
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"Hazardous Materials" shall mean any substance, chemical, material,
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pollutant, waste, contaminant or constituent, which is subject to regulation
under or could give rise to liability under any Environmental Law.
"Holder" shall have the meaning assigned to such term in the Indenture.
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"Improvements" shall mean (1) all buildings, structures and other
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improvements of every kind or description and any and all Alterations now or
hereafter located, attached or erected on the Owned Land including, without
limitation (i) all Fixtures of the type described in clause (1) of the
definition thereof, (ii) all attachments, railroad tracks, foundations,
sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways,
sewer rights, parking areas, driveways, fences and walls and (iii) all materials
now or hereafter located on the Owned Land intended for the construction,
reconstruction, repair, replacement, alteration, addition or improvement of or
to such buildings, Fixtures of the type described in clause (1) of the
definition thereof, structures and improvements, all of which materials shall be
deemed to be part of the Improvements immediately upon delivery thereof on the
Owned Land and to be part of the improvements immediately upon their
incorporation therein; and (2) all of the Trustor's estate, right, title and
interest in, to and under all buildings, structures and other improvements of
every kind or description and any and all Alterations now or hereafter located,
attached or erected on the Leased Land including, without limitation (i) all
Fixtures of the type described in clause (2) of the definition thereof, (ii) all
attachments, railroad tracks, foundations, sidewalks, drives, roads, curbs,
streets, ways, alleys, passages, passageways, sewer rights, parking areas,
driveways, fences and walls and (iii) all materials now or hereafter located on
the Leased Land intended for the construction, reconstruction, repair,
replacement, alteration, addition or improvement of or to such buildings,
Fixtures of the type described in clause (2) of the definition thereof,
structures and improvements, all of which materials shall be deemed to be part
of the Improvements immediately upon delivery thereof on the Leased Land and to
be part of the improvements immediately upon their incorporation therein, to the
extent of Trustor's estate, right, title and interest therein.
"Indemnified Liabilities" shall have the meaning assigned to such term in
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Section 14.6(i) hereof.
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"Indemnitees" shall have the meaning assigned to such term in Section
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14.6(i) hereof.
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"Indenture" shall have the meaning assigned to such term in Recital A
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hereof.
"Insurance Policies" means the insurance policies and coverages required
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to be maintained by the Trustor with respect to the Trust Property pursuant to
Section 4.19(b) of the Indenture and all renewals and extensions thereof.
"Insurance Requirements" means, collectively, all provisions of the
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Insurance Policies, all requirements of the issuer of any of the Insurance
Policies and all orders, rules, regulations and any other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon the Trustor and applicable to the Trust Property or any
use or condition thereof.
"Issuer" shall have the meaning assigned to such term in Recital A hereof.
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"Landlord" shall mean any landlord, sublandlord, lessor, sublessor,
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franchisor, licensor or grantor, as applicable.
"Leased Land" shall mean the land described in Schedule A annexed
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hereto as Parcel 1 and any and all easements, rights-of-way, strips and gores of
land, waters, water courses, water rights, mineral, gas and oil rights and all
power, air, light and other rights, estates, titles, interests, privileges,
liberties, servitudes, licenses, tenements, hereditaments and appurtenances
whatsoever, in any way demised under the Trust Lease or belonging, relating or
appertaining thereto, or any part thereof, or which hereafter shall in any way
be demised under the Trust Lease or belong, relate or be appurtenant thereto.
"Leased Premises" shall mean, collectively, (1) the lessee's interest
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and estate in the Trust Lease and all recorded or unrecorded extensions,
amendments, supplements and restatements thereof, and (2) all right, title and
interest of the lessee under the Trust Lease in and to (i) the Leased Land and
(ii) Improvements of the type described in clause (2) of the definition thereof.
"Leases" shall mean, collectively, any and all interests of the
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Trustor, as Landlord, in all leases and subleases of space, tenancies, franchise
agreements, licenses, occupancy, rental, access or concession agreements and any
other agreements pursuant to which any Person is granted a possessory interest
in or right to use or occupy all or any portion of the Trust Property, in each
case whether now existing or hereafter entered into, whether or not of record,
relating in any manner to the Owned Premises or Leased Premises or the use or
occupancy thereof and any and all amendments, modifications, supplements,
replacements, extensions, renewals and/or guarantees, if any thereof, whether
now in effect or hereafter coming into effect.
"Lessor" shall have the meaning assigned to such term in Recital F
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hereof.
"Lien" shall have the meaning assigned to such term in the Indenture.
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"Net Loss Proceeds" shall have the meaning assigned to such term in
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the Indenture.
"Net Proceeds" shall have the meaning assigned to such term in the
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Indenture.
"Notes" shall have the meaning assigned to such term in Recital A
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hereof.
"Officers' Certificate" shall have the meaning assigned to such term
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in the Indenture.
"Owned Land" shall mean the land described in Schedule A annexed
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hereto as Parcels 2, 3, 4, and 5 together with the Trustor's rights in and to
any and all easements, rights-of-way, strips and gores of land, waters, water
courses, water rights, mineral, gas and oil rights and all power, air, light and
other rights, estates, titles, interests, privileges, liberties, servitudes,
licenses, tenements, hereditaments and appurtenances whatsoever, in any way
belonging, relating or appertaining thereto, or any part thereof, or which
hereafter shall in any way belong, relate or be appurtenant thereto.
"Owned Premises" shall mean, collectively, (i) the Owned Land and (ii)
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Improvements of the type described in clause (1) of the definition thereof.
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"Permit" shall mean any and all permits, certificates, approvals,
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authorizations, consents, licenses, variances, franchises or other instruments,
however characterized, of any Governmental Authority (or any Person acting on
behalf of a Governmental Authority) now or hereafter acquired or held, together
with all amendments, modifications, extensions, renewals and replacements of any
thereof issued or in any way furnished in connection with the Trust Property
including, without limitation, building permits, certificates of occupancy,
environmental certificates, industrial permits or licenses and certificates of
operation.
"Permitted Collateral Liens" shall have the meaning assigned to such
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term in Section 4.6 hereof.
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"Permitted Liens" shall have the meaning assigned to such term in the
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Indenture.
"Person" shall have the meaning assigned to such term in the
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Indenture.
"Prior Liens" shall mean, collectively, the Liens identified in
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Schedule B annexed to this Deed of Trust.
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"Proceeds" shall mean, collectively, any and all cash proceeds and
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noncash proceeds and shall include, without limitation, all (i) proceeds of the
conversion, voluntary or involuntary, of any of the Trust Property or any
portion thereof into cash or liquidated claims, (ii) proceeds of any insurance
(except payments made to a Person, other than the Issuer or any Subsidiary
thereof, that is not a party to this Deed of Trust), indemnity, warranty,
guaranty or claim payable to the Beneficiary or to the Trustor from time to time
with respect to any of the Trust Property including, without limitation, all Net
Loss Proceeds relating thereto, (iii) payments (in any form whatsoever) made or
due and payable to the Trustor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
portion of the Trust Property by any Governmental Authority (or any Person
acting on behalf of a Governmental Authority) including, without limitation, all
Net Loss Proceeds relating thereto, (iv) products of the Trust Property and (v)
other amounts from time to time paid or payable under or in connection with any
of the Trust Property including, without limitation, refunds of real estate
taxes and assessments, including interest thereon.
"Property Material Adverse Effect" shall mean, as of any date of
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determination and whether individually or in the aggregate (a) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
business or operations as presently conducted at the Trust Property; (b) any
event, circumstance, occurrence or condition which has caused or resulted in (or
would reasonably be expected to cause or result in) a material adverse effect on
the value or utility of the Trust Property; and (c) any event, circumstance,
occurrence or condition which has caused or resulted in (or would reasonably be
expected to cause or result in) a material adverse effect on the legality,
priority or enforceability of the Lien created by this Deed of Trust or the
rights and remedies of the Beneficiary or Trustee hereunder.
"Prudent Operator" shall mean the standard of care taken by a prudent
----------------
operator of property similar in use and configuration to the Owned Premises or
Leased Premises, as the case may be, and located in the locality where the Owned
Premises or Leased Premises, as the case may be, are located.
-8-
"Records" shall mean, collectively, any and all right, title and
-------
interest of the Trustor in and to any and all drawings, plans, specifications,
file materials, operating and maintenance records, catalogues, tenant lists,
correspondence, advertising materials, operating manuals, warranties,
guarantees, appraisals, studies and data relating to the Trust Property or the
construction of any Alteration or the maintenance of any Permit.
"Rents" shall mean, collectively, any and all rents, additional rents,
-----
royalties, issues, cash, guaranties, letters of credit, bonds, sureties or
securities deposited under any Lease to secure performance of the Tenant's
obligations thereunder, revenues, earnings, profits and income, advance rental
payments, payments incident to assignment, sublease or surrender of a Lease,
claims for forfeited deposits and claims for damages, now due or hereafter to
become due, with respect to any Lease, any indemnification against, or
reimbursement for, sums paid and costs and expenses incurred by the Trustor
under any Lease or otherwise, and any award in the event of the bankruptcy of
any Tenant under or guarantor of a Lease.
"Requirements of Law" shall mean, collectively, any and all
-------------------
requirements of any Governmental Authority including, without limitation, any
and all orders, decrees, determinations, laws, treaties, ordinances, rules,
regulations or similar statutes or case law.
"Secured Obligations" shall mean all obligations (whether or not
-------------------
constituting future advances, obligatory or otherwise) of the Issuer and any and
all of the Guarantors from time to time arising under or in respect of this Deed
of Trust, the Indenture, the Notes and the other Collateral Documents
(including, without limitation, the obligations to pay principal, interest and
all other charges, fees, expenses, commissions, reimbursements, premiums,
indemnities and other payments related to or in respect of the obligations
contained in this Deed of Trust, the Indenture, the Notes and the other
Collateral Documents), in each case whether (i) such obligations are direct or
indirect, secured or unsecured, joint or several, absolute or contingent, due or
to become due whether at stated maturity, by acceleration or otherwise, (ii)
arising in the regular course of business or otherwise, (iii) for payment or
performance and/or (iv) now existing or hereafter arising (including, without
limitation, interest and other obligations arising or accruing after the
commencement of any bankruptcy, insolvency, reorganization or similar proceeding
with respect to the Issuer, any Guarantor or any other Person, or which would
have arisen or accrued but for the commencement of such proceeding, even if such
obligation or the claim therefor is not enforceable or allowable in such
proceeding).
"Secured Parties" shall mean, collectively, the Beneficiary and the
---------------
Holders of the Notes.
"Senior Secured Notes" shall have the meaning assigned to such term in
--------------------
Recital A hereof.
- ---------
"Subordination Agreement" shall mean a subordination, nondisturbance
-----------------------
and attornment agreement substantially in the form of Exhibit 1 annexed to this
---------
Deed of Trust.
"Subsidiaries" shall have the meaning assigned to such term in the
------------
Indenture.
"Taking" shall mean any taking of the Trust Property or any part
------
thereof, in or by condemnation or other eminent domain proceedings pursuant to
any law, general or special, or by reason of the temporary requisition of the
use or occupancy of the Trust Property or any part thereof, by any Governmental
Authority, civil or military.
-9-
"Tax Escrow Fund" shall have the meaning assigned to such term in
---------------
Section 7.2 hereof.
- -----------
"Tenant" shall mean any tenant, subtenant, lessee, sublessee,
------
franchisee, licensee, grantee or obligee, as applicable.
"Trust Lease" shall have the meaning assigned to such Term in Recital
-----------
F hereof.
"Trust Property" shall have the meaning assigned to such term in
--------------
Section 2.1 hereof.
- -----------
"Trustor" shall have the meaning assigned to such term in the Preamble
-------
hereof.
"Trustor's Interest" shall have the meaning assigned to such term in
------------------
Section 2.2 hereof.
"UCC" shall mean the Uniform Commercial Code as in effect on the date
---
hereof in the jurisdiction in which the Owned Premises and the Leased Premises
are located; provided, however, that if by reason of mandatory provisions of
-------- -------
law, the perfection or the effect of perfection or non-perfection of the
security interest in any item or portion of the Trust Property is governed by
the Uniform Commercial Code as in effect in a jurisdiction other than the
jurisdiction in which the Owned Premises and the Leased Premises are located,
"UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection
or effect of perfection or non-perfection.
SECTION 1.2 Interpretation. In this Deed of Trust, unless otherwise
--------------
specified, (i) singular words include the plural and plural words include the
singular, (ii) words importing any gender include the other gender, (iii)
references to any Person include such Person's successors and assigns and in the
case of an individual, the word "successors" includes such Person's heirs,
devisees, legatees, executors, administrators and personal representatives, (iv)
references to any statute or other law include all applicable rules, regulations
and orders adopted or made thereunder and all statutes or other laws amending,
consolidating or replacing the statute or law referred to, (v) the words
"consent," "approve" and "agree," and derivations thereof or words of similar
import, mean the prior written consent, approval or agreement of the Person in
question not to be unreasonably withheld, (vi) the words "include" and
"including," and words of similar import, shall be deemed to be followed by the
words "without limitation," (vii) the words "hereto," "herein," "hereof" and
"hereunder," and words of similar import, refer to this Deed of Trust in its
entirety, (viii) references to Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are to the Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses hereof, (ix) the Schedules and
Exhibits to this Deed of Trust, in each case as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
provisions hereof, are incorporated herein by reference, (x) the titles and
headings of Articles, Sections, Schedules, Exhibits, subsections, paragraphs and
clauses are inserted as a matter of convenience only and shall not affect the
constructions of any provisions hereof and (xi) all obligations of the Trustor
hereunder shall be satisfied by the Trustor at its sole cost and expense.
SECTION 1.3 Resolution of Drafting Ambiguities. The Trustor
----------------------------------
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery hereof, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party (i.e., Beneficiary) shall not be employed in the interpretation
---
hereof.
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ARTICLE II
GRANTS AND SECURED OBLIGATIONS
SECTION 2.1 Grant of Trust Property. The Trustor hereby pledges,
-----------------------
gives, grants, bargains, sells, transfers, assigns and conveys to the Trustee,
and its successors and assigns, in trust, with power of sale, for and on behalf
of the Beneficiary (for the ratable benefit of the Secured Parties), subject to
the terms and conditions hereof, and hereby grants to the Beneficiary (for the
ratable benefit of the Secured Parties), also subject to the terms and
conditions hereof, a security interest in all of the Trustor's estate, right,
title and interest in, to and under the following property, whether now owned or
held or hereafter acquired from time to time (collectively, the "Trust
-----
Property"):
- --------
(i) Owned Premises;
(ii) Leased Premises;
(iii) Leases;
(iv) Rents;
(v) Permits;
(vi) Contracts;
(vii) Records; and
(viii) Proceeds.
Notwithstanding the foregoing provisions of this Section 2.1, Trust
-----------
Property shall not include a grant of any of the Trustor's right, title or
interest in (i) any Contract to which the Trustor is a party or any of its
rights or interests thereunder (other than (x) the right to receive any payment
of money (including without limitation accounts, general intangibles and payment
intangibles (each as defined in the UCC) or any other rights referred to in
Sections 9-406(f), 9-407(a) or 9-408(a) of the UCC and (y) any proceeds,
substitutions or replacements thereof) to the extent, but only to the extent,
that such a grant would, under the terms of such Contract, result in a breach or
termination of the terms of, or constitute a default under or termination of
such Contract and (ii) any Permit to the extent, but only to the extent that,
such grant shall constitute or result in abandonment, invalidation or rendering
unenforceable any right, title or interest of the Trustor therein; provided,
--------
however, that at such time as any Contract or Permit described in clauses (i)
- -------
and (ii) of this sentence is no longer subject to such restriction, such
applicable Contract or Permit shall (without any act or delivery by any Person)
constitute Trust Property hereunder.
TO HAVE AND TO HOLD the Trust Property, together with the rights, privileges and
appurtenances thereto belonging unto (i) the Trustee, his substitutes or
successors, forever, to the extent the same constitutes real property or an
interest therein and (ii) the Beneficiary, to the extent the same does not
constitute real property or an interest therein, in either case for the benefit
of the Beneficiary and the Beneficiary's successors and assigns forever, for the
purpose of securing payment and performance by the Trustor of the Secured
Obligations, and the Trustor hereby binds itself and its successors and assigns
to warrant and for
-11-
ever defend the Trust Property unto each of the Trustee and Beneficiary, their
substitutes, successors and assigns, as the case may be, against the claim or
claims of all persons claiming or to claim the same or any part thereof.
SECTION 2.2 Assignment of Leases and Rents. During the term hereof,
------------------------------
the Trustor absolutely, presently, unconditionally and irrevocably pledges,
grants, sells, conveys, delivers, hypothecates, assigns, transfers and sets over
to the Beneficiary, and grants to the Beneficiary (for the ratable benefit of
the Secured Parties), subject to the terms of Article VI hereof, all of the
Trustor's estate, right, title, interest, claim and demand, as Landlord, under
any and all of the Leases including, without limitation, the following (such
assigned rights, the "Trustor's Interest"):
------------------
(i) the immediate and continuing right to receive and collect Rents
payable by the Tenants pursuant to the Leases;
(ii) all claims, rights, powers, privileges and remedies of the
Trustor, whether provided for in the Leases or arising by statute or at law
or in equity or otherwise, consequent on any failure on the part of the
Tenants to perform or comply with any term of the Leases including damages
or other amounts payable to the Trustor as a result of such failure;
(iii) all rights to take all actions upon the happening of a default
under the Leases as shall be permitted by the Leases or by law including,
without limitation, the commencement, conduct and consummation of
proceeding at law or in equity; and
(iv) the full power and authority, in the name of the Trustor or
otherwise, to enforce, collect, receive and receipt for any and all of the
foregoing and to take all other actions whatsoever which the Trustor, as
Landlord, is or may be entitled to take under the Leases.
SECTION 2.3 Secured Obligations. This Deed of Trust secures, and the
-------------------
Trust Property is collateral security for, the payment and performance in full
when due of the Secured Obligations.
SECTION 2.4 Future Advances. This Deed of Trust shall secure future
---------------
advances. The maximum aggregate amount of all advances of principal under the
Indenture (which advances are obligatory to the extent the conditions set forth
in the Indenture relating thereto are satisfied) that may be outstanding
hereunder at any time is $125,000,000 plus interest thereon, collection costs,
sums advanced for the payment of taxes, assessments, maintenance and repair
charges, insurance premiums and any other reasonable costs incurred to protect
the security encumbered hereby or the Lien hereof, reasonable expenses incurred
by the Beneficiary by reason of any default by the Trustor under the terms
hereof, together with all other sums secured hereby.
SECTION 2.5 No Release. Nothing set forth in this Deed of Trust shall
----------
relieve the Trustor from the performance of any term, covenant, condition or
agreement on the Trustor's part to be performed or observed under or in respect
of any of the Trust Property or from any liability to any Person under or in
respect of any of the Trust Property or shall impose any obligation on the
Beneficiary or any other Secured Party to perform or observe any such term,
covenant, condition or agreement on the Trus-tor's part to be so performed or
observed or shall impose any liability on the Beneficiary or any other Secured
Party for any act or omission on the part of the Trustor relating thereto or for
any breach of any representation or warranty on the part of the Trustor
contained in this Deed of Trust, the Indenture, the Notes
-12-
or the Collateral Documents, or under or in respect of the Trust Property or
made in connection herewith or therewith. The obligations of the Trustor
contained in this Section 2.5 shall survive the termination hereof and the
-----------
discharge of the Trustor's other obligations under this Deed of Trust and the
Indenture, the Notes and the Collateral Documents.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRUSTOR
SECTION 3.1 Authority and Validity.
----------------------
The Trustor represents and warrants that as of the date hereof:
(i) it is duly organized or formed, validly existing and, if
applicable, in good standing under the laws of the jurisdiction of its
organization;
(ii) it is duly qualified to transact business and is in good
standing in the state in which the Trust Property is located;
(iii) it has full corporate or other organizational power and lawful
authority to execute and deliver this Deed of Trust and to mortgage and
grant a Lien on and security interest in the Trust Property and otherwise
assign the Trustor's Interest and otherwise perform its obligations as
contemplated herein, and all corporate and governmental actions, consents,
authorizations and approvals necessary or required therefor have been duly
and effectively taken or obtained; and
(iv) this Deed of Trust is a legal, valid and binding obligation of
the Trustor, enforceable against the Trustor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
SECTION 3.2 Warranty of Title. The Trustor represents and warrants
-----------------
that:
(i) it has good fee simple title to the Owned Premises and the
Landlord's interest and estate under or in respect of the Leases relating
thereto and good title to the interest it purports to own or hold in and to
each of the Permits, the Contracts and the Records, in each case subject to
no Liens, except for Permitted Collateral Liens;
(ii) it owns the tenant's interest in the Trust Lease and has a
valid leasehold interest in the Leased Premises and the Landlord's interest
and estate under or in respect of the Leases relating thereto and good
title to the interest it purports to own or hold in and to each of the
Permits, the Contracts and the Records, in each case subject to no Liens,
except for Permitted Collateral Liens;
(iii) the Trust Lease (a) is a valid and subsisting lease, superior
and paramount to all other leases respecting the Leased Premises, (b) is in
full force and effect and no default (nor any
-13-
event which, with notice or lapse of time or both, would constitute such a
default) has occurred or is continuing under the Trust Lease and (c) is not
subject to any defenses, offsets or counterclaims and there have been no
renewals or extensions of or supplements, modifications or amendments to
the Trust Lease not previously disclosed to the Beneficiary or the Trustee
except those that would not result in a Property Material Adverse Effect;
(iv) It is in actual possession of the Leased Premises;
(v) it has good title to the interest it purports to own or hold in
and to all rights and appurtenances to or that constitute a portion of the
Trust Property, except for Permitted Collateral Liens;
(vi) it is in compliance with each term, condition and provision of
any obligation of the Trustor which is secured by the Trust Property or the
noncompliance with which would result in a Property Material Adverse
Effect; and
(vii) this Deed of Trust creates and constitutes a valid and
enforceable first priority Lien on the Trust Property subject to Permitted
Collateral Liens, and, to the extent any of the Trust Property shall
consist of Fixtures, a first priority security interest in the Fixtures,
which first priority Lien and first priority security interest are subject
only to Permitted Collateral Liens.
SECTION 3.3 Condition of Trust Property. The Trustor represents and
---------------------------
warrants that:
(i) there has been issued and there remains in full force and
effect subject to no revocation, suspension, forfeiture or modification,
each and every Permit necessary for the present use, operation and
occupancy of the Owned Premises or Leased Premises, as the case may be, by
the Trustor and its Tenants and the conduct of their respective businesses
and all required zoning, building code, land use, environmental and other
similar Permits, except where the failure to be so issued and to be in full
force and effect would not result in a Property Material Adverse Effect;
(ii) the Owned Premises and Leased Premises and the present and
contemplated use and occupancy thereof comply with all applicable zoning
ordinances, building codes, land use laws, setback or other development
and/or use requirements of Governmental Authorities except where such
noncompliance would not result in a Property Material Adverse Effect;
(iii) the Owned Premises and Leased Premises are served by all
utilities (including, without limitation, water and sewer systems)
necessary for the present use thereof, and all utility services are
provided by public or private utilities and the Owned Premises and Leased
Premises have accepted or are equipped to accept such utility services and
the Trustor has not received notice of termination of such utility service,
except where the failure to be so served would not result in a Property
Material Adverse Effect;
(iv) the Trustor has access to the Owned Premises or Leased
Premises, as the case may be, from roads sufficient to allow the Trustor
and its Tenants and invitees to conduct their respective businesses at the
Owned Premises and Leased Premises, as the case may be, in accordance with
sound commercial practices and the Trustor has not received notice of
termination of
-14-
such access, except where the failure to have such access would not result
in a Property Material Adverse Effect;
(v) the Trustor has not received notice of any Taking or the
commencement or pendency of any action or proceeding therefor, other than
such Takings as would not result in a Property Material Adverse Effect;
(vi) there has not occurred any Destruction of the Owned Premises or
Leased Premises or any portion thereof as a result of any fire or other
casualty that, as of the date hereof, has not been repaired in all material
respects, other than such Destruction as would not have a Property Material
Adverse Effect;
(vii) there are no disputes regarding boundary lines, location,
encroachments or possession of any portions of the Trust Property and no
state of facts exists which could give rise to any such claim other than
such disputes as would not result in a Property Material Adverse Effect;
(viii) all liquid and solid waste disposal, septic and sewer systems
located on the Owned Premises or Leased Premises are in a good and safe
condition and repair and in compliance with all Requirements of Law, except
where the failure to so comply would not result in a Property Material
Adverse Effect;
(ix) no portion of the Owned Premises or Leased Premises is located
in an area identified by the Federal Emergency Management Agency or any
successor thereto as an area having special flood hazards pursuant to the
Flood Insurance Acts or, if any portion of the Leased Premises is located
within such area, the Trustor has obtained the insurance prescribed in
Article VIII hereof;
------------
(x) the Owned Premises and Leased Premises are assessed for real
estate tax purposes as one or more wholly independent tax lot or lots,
separate from any adjoining land or improvements not constituting a portion
of such lot or lots, and no other land or improvements are assessed and
taxed together with the Owned Premises and Leased Premises or any portion
thereof, other than such cases where the failure to be so assessed would
not result in a Property Material Adverse Effect; and
(xi) there are no options or rights of first refusal to purchase or
acquire all or any portion of the Trust Property, other than such options
or rights of first refusal as would not result in a Property Material
Adverse Effect.
SECTION 3.4 Leases. The Trustor represents and warrants that as of
------
the date hereof:
(i) the Leases identified in Schedule C attached hereto are the
----------
only Leases in existence on the date hereof relating to the Leased
Premises;
(ii) true copies of such Leases have been previously delivered to
the Beneficiary and there are no agreements with any Tenant under such
Leases other than those agreements expressly set forth therein;
-15-
(iii) the Trustor is the sole owner of all of the Trustor's Interest
in such Leases;
(iv) each of such Leases is in full force and effect, constitutes a
legal, valid and binding obligation of the Trustor and the applicable
Tenant thereunder, and is enforceable against the Trustor and such Tenant
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability;
(v) there is no default under any of such Leases and there is
existing no condition which with the giving of notice or passage of time or
both would cause a default thereunder;
(vi) all Rents due under such Leases have been paid in full;
(vii) none of the Rents reserved under such Leases have been assigned
or otherwise pledged or hypothecated except in favor of the Beneficiary
pursuant to the provisions hereof;
(viii) none of the Rents (other than any security deposit collected in
accordance with the provisions of the applicable Lease) have been collected
for more than one (1) month in advance;
(ix) there exists no offsets or defenses to the payment of any
portion of the Rents and the Trustor owes no monetary obligation to any
Tenant under any such Lease;
(x) the Trustor has received no notice from any Tenant challenging
the validity or enforceability of any such Lease;
(xi) no such Lease contains any option to purchase, right of first
refusal to purchase, right of first refusal to relet, or any other similar
provision; and
(xii) each such Lease is subordinate to this Deed of Trust either
pursuant to its terms or pursuant to a recordable Subordination Agreement.
SECTION 3.5 Insurance. The Trustor represents and warrants that,
---------
except where the failure of clauses (i), (ii) or (iii) hereof to be true would
not have a Property Material Adverse Effect, (i) the Owned Premises and Leased
Premises and the use, occupancy and operation thereof comply with all Insurance
Requirements and there exists no default under any Insurance Requirement, (ii)
all premiums due and payable with respect to the Insurance Policies have been
paid, (iii) all Insurance Policies are in full force and effect and the Trustor
has not received notice of violation or cancellation thereof and (iv) all
insurance certificates required pursuant to the Indenture have been delivered to
the Beneficiary.
SECTION 3.6 Charges. The Trustor represents and warrants that all
-------
Charges imposed upon or assessed against the Trustor's interest in the Trust
Property (and, in the case of the Leased Premises, to the extent such Charges
are payable by the Trustor in accordance with the terms of the Trust Lease) have
been paid and discharged by the Trustor except to the extent such Charges
constitute a Lien not yet due and payable or to the extent such Charges are
being contested in accordance with Section 9.1 hereof.
-16-
SECTION 3.7 Environmental. The Trustor represents and warrants that:
-------------
(i) it has obtained all Permits which are necessary with respect to
the ownership and operation of its business and the Trust Property under
any and all applicable Environmental Laws and is in compliance with all
terms and conditions thereof, except where the failure so to obtain or to
be in compliance would not result in a Property Material Adverse Effect;
(ii) it is in compliance with any and all applicable Environmental
Laws including, without limitation, all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules
and timetables contained in the Environmental Laws, except where the
failure so to be in compliance would not result in a Property Material
Adverse Effect;
(iii) there is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice of violation, investigation, proceeding,
notice of demand letter pending or threatened against it or any Affiliate
under the Environmental Laws which would result in a fine, penalty or other
cost or expense other than such instances that would not result in a
Property Material Adverse Effect; and
(iv) there are no past or present events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with
or prevent compliance with the Environmental Laws, or which may give rise
to any common law or legal liability including, without limitation,
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or any other Environmental Law or
related common law theory or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing or notice of violation, study or
investigation, based on or related to the manufacture, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release into
the environment, of any Hazardous Materials which would result in a fine,
penalty or other cost or expense other than such instances that would not
result in a Property Material Adverse Effect.
SECTION 3.8 No Conflicts, Consents, etc. Neither the execution and
---------------------------
delivery hereof by the Trustor nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof (i) violates the terms of
any agreement, indenture, mortgage, deed of trust, equipment lease, instrument
or other document to which the Trustor is a party, or by which it may be bound
or to which any of its properties or assets may be subject, (ii) conflicts with
any Requirement of Law applicable to the Trustor or its property or (iii)
results in or requires the creation or imposition of any Lien (other than the
Lien contemplated hereby) upon or with respect to any of the Trust Property,
except where such violation, conflict, creation or imposition would not have a
Property Material Adverse Effect. No consent of any party (including, without
limitation, equityholders or creditors of the Trustor) and no consent,
authorization, approval, license or other action by, and no notice to or filing
with, any Governmental Authority or regulatory body or other Person (other than
with respect to any required Permits) is required for (i) the granting of a
mortgage Lien on and security interest in the Trust Property by the Trustor
granted by it pursuant to this Deed of Trust or for the execution, delivery or
performance hereof by the Trustor except for the filing of this Deed of Trust
and the other filings contemplated hereby or (ii) the exercise by the
Beneficiary of the remedies in respect of the Trust Property pursuant to this
Deed of Trust other than those required by law in connection with the exercise
of the applicable remedy.
-17-
SECTION 3.9 Benefit to the Trustor. The Trustor represents and
----------------------
warrants that it will receive substantial benefit as a result of the execution,
delivery, and performance of the Indenture, the Notes and the Collateral
Documents.
ARTICLE IV
CERTAIN COVENANTS OF TRUSTOR
SECTION 4.1 Preservation of Corporate Existence. The Trustor
-----------------------------------
shall:
(i) preserve and maintain in full force and effect its existence
and good standing under the laws of the jurisdiction of its organization;
(ii) preserve and maintain in full force and effect its
qualification to transact business and good standing in the state in which
the Trust Property is located; and
(iii) preserve and maintain in full force and effect all consents,
authorizations and approvals necessary or required of any Governmental
Authority or any other Person relating to the execution, delivery and
performance hereof, except where the failure to do so would not result in a
Property Material Adverse Effect.
SECTION 4.2 Title. The Trustor shall:
-----
(i) (A) keep in effect all material rights and appurtenances to
or that constitute a part of the Trust Property and (B) protect, preserve
and defend its interest in the Trust Property and title thereto, except
against Permitted Collateral Liens (other than the Lien created by this
Deed of Trust);
(ii) (A) comply, in all material respects, with each of the terms,
conditions and provisions of any obligation of the Trustor which is secured
by the Trust Property, except where the failure to so comply would not
result in a Property Material Adverse Effect, or the noncompliance with
which may result in the imposition of a Lien on the Trust Property, (B)
forever warrant and defend to the Beneficiary the Lien and security
interests created and evidenced hereby and the validity and priority hereof
in any action or proceeding against the claims of any and all Persons
whomsoever affecting or purporting to affect the Trust Property or any of
the rights of the Beneficiary hereunder, except against Permitted
Collateral Liens (other than the Lien of this Deed of Trust), and (C)
maintain a valid and enforceable first priority Lien, except for Permitted
Collateral Liens (other than the Lien of this Deed of Trust) on the Trust
Property and, to the extent any of the Trust Property shall consist of
Fixtures, a first priority security interest in the Trust Property, which
first priority Lien and security interest shall be subject only to
Permitted Collateral Liens; and
(iii) immediately upon obtaining knowledge of the pendency of any
proceedings for the eviction of the Trustor from the Trust Property or any
part thereof by paramount title or otherwise questioning the Trustor's
right, title and interest in, to and under the Trust Property as warranted
in this Deed of Trust, or of any condition that could give rise to any such
proceedings, notify the
-18-
Beneficiary thereof. The Beneficiary may participate in such
proceedings and the Trustor will deliver or cause to be delivered to
the Beneficiary all instruments requested by the Beneficiary to permit
such participation. In any such proceedings, the Beneficiary may be
represented by counsel reasonably satisfactory to the Beneficiary at
the reasonable expense of the Trustor. If, upon the resolution of such
proceedings,the Trustor shall suffer a loss of the Trust Property or
any part thereof or interest therein and title insurance proceeds
shall be payable in connection therewith, such proceeds are hereby
assigned to and shall be paid to the Beneficiary for deposit into the
Collateral Account and shall be applied in the manner applicable to
Net Loss Proceeds in accordance with the provisions of Sections 4.16,
11.02, and 10.05(c) of the Indenture.
SECTION 4.3 Maintenance and Use of Trust Property; Alterations.
--------------------------------------------------
(i) Maintenance. The Trustor shall cause the representations
-----------
and warranties set forth in Section 3.3 hereof to continue to be true in each
-----------
and every respect and shall pay or cause to be paid when due all Charges imposed
upon or assessed against the Trustor's interest in the Trust Property (and, in
the case of the Leased Premises, to the extent such charges are payable by the
Trustor in accordance with the terms of the Trust Lease) costs and expenses
relating thereto, other than such Charges being contested in accordance with
Section 9.1 hereof.
(ii) Maintenance of Premises. The Trustor shall not commit or
-----------------------
suffer any waste on the Owned Premises or Leased Premises. In the case of the
Owned Premises, the Trustor shall at all times maintain the Owned Premises in
good working order, condition and repair, reasonable wear and tear excepted, and
shall use commercially reasonable efforts to make or cause to be made all
repairs structural or nonstructural which are necessary or appropriate in the
conduct of the Trustor's business. In the case of the Leased Premises, except to
the extent to do so shall be the Lessor's obligation under the Trust Lease, the
Grantor shall at all times maintain the Leased Premises in good working order,
condition and repair, reasonable wear and tear excepted, and shall use
commercially reasonable efforts to make or cause to be made all repairs
structural (to the extent permitted under the Trust Lease) or nonstructural,
which are necessary or appropriate in the conduct of the Trustor's business. The
Trustor shall not, except as permitted in Section 4.3(iii) hereof, alter the
----------------
occupancy or use of all or any portion of the Owned Premises or Leased Premises
without the prior written consent of the Beneficiary, which consent shall not be
unreasonably withheld. Except to the extent permitted pursuant to the provisions
of Section 4.3(iii) hereof, the Trustor shall not remove, demolish or alter the
---------------
structural character of any Improvement now or hereafter erected upon all or any
portion of the Owned Premises or Leased Premises, or permit any such removal,
demolition or alteration, without the prior written consent of the Beneficiary,
which consent shall not be unreasonably withheld.
(iii) Alterations. The Trustor shall not, without the prior
-----------
written consent of the Beneficiary, which consent shall not be unreasonably
withheld (and the consent of the Lessor under the Trust Lease, if any, as may be
required under the Trust Lease), make any Alteration to the Owned Premises or
Leased Premises except as permitted by Sections 10.04 and 10.06 of the
Indenture. Whether or not the making of any Alteration shall require the consent
of the Beneficiary pursuant to the immediately preceding sentence, the Trustor
shall (A) complete each Alteration promptly, in a good and workmanlike manner
and in compliance, in all material respects, with all applicable local laws,
ordinances and requirements and (B) pay when due all claims for labor performed
and materials furnished in connection with such Alteration, unless contested in
accordance with the provisions of Article IX hereof.
----------
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(iv) Permits. The Trustor shall maintain, or cause to be
-------
maintained for the operation of its business at the Owned Premises or Leased
Premises, as the case may be, and otherwise to the extent the Trustor is
obligated to do so under the Trust Lease, in full force and effect all Permits
contemplated by and subject to Section 3.3(i) hereof. Unless and to the extent
--------------
contested by the Trustor in accordance with the provisions of Article IX hereof,
----------
the Trustor shall comply, in all material respects, with all requirements set
forth in the Permits and all Requirements of Law applicable to all or any
portion of the Trust Property or the condition, use or occupancy of all or any
portion thereof or any recorded deed of restriction, declaration, covenant
running with the land or otherwise, now or hereafter in force, subject to the
provisions of Section 3.3 hereof.
-----------
(v) Zoning. The Trustor shall not initiate, join in, or consent
------
to any change in the zoning or any other permitted use classification of the
Owned Premises or Leased Premises without the prior written consent of the
Beneficiary, which consent shall not be unreasonably withheld.
SECTION 4.4 Notices Regarding Certain Defaults. The Trustor
----------------------------------
shall, promptly upon receipt of any written notice regarding (i) any default by
the Trustor relating to the Trust Property or any portion thereof or (ii) the
failure to discharge any of the Trustor's obligations with respect to the Trust
Property or any portion thereof described herein, furnish a copy of such notice
to the Beneficiary.
SECTION 4.5 Access to Trust Property, Books and Records; Other
--------------------------------------------------
Information. Upon request to the Trustor, the Beneficiary, its agents,
- -----------
accountants and attorneys shall have full and free access to visit and inspect,
as applicable, during normal business hours and such other reasonable time as
may be requested by the Beneficiary to all of the Trust Property including,
without limitation, all of the books, correspondence and records of the Trustor
relating thereto. The Beneficiary and its representatives may examine the same,
take extracts therefrom and make photocopies thereof. The Trustor shall, at any
and all times, within a reasonable time after written request by the
Beneficiary, furnish or cause to be furnished to the Beneficiary, in such manner
and in such detail as may be reasonably requested by the Beneficiary, additional
information with respect to the Trust Property.
SECTION 4.6 Limitation on Liens; Transfer Restrictions. The
------------------------------------------
Trustor may not, without the prior written consent of the Beneficiary, further
mortgage, encumber, hypothecate, sell, convey or assign all or any part of the
Trust Property or suffer or allow any of the foregoing to occur by operation of
law or otherwise; provided, however, that the Trustor shall have the right to
-------- -------
(1) sell, convey or assign all or any portion of the Trust Property in
accordance with the provisions of Section 10 of the Indenture and (2) suffer to
exist the following Liens in respect of the Trust Property: (i) Prior Liens (but
not extensions, amendments, supplements or replacements of Prior Liens unless
(A) extended, amended, supplemented or replaced in a manner permitted by the
Indenture or (B) consented to by the Beneficiary which consent shall not be
unreasonably withheld), (ii) the Lien and security interest created by this Deed
of Trust or any other Collateral Document, (iii) Contested Liens, (iv) Liens
described in clause (9) of the definition of Permitted Liens (provided, however,
-------- -------
that such Liens shall not extend to or cover any Trust Property other than
equipment subject to Capital Leases Obligations or Purchase Money Obligations
incurred in accordance with the provisions of the Indenture) or clause (4) of
the definition of Permitted Liens, (v) Leases to the extent permitted pursuant
to the provisions of Article V hereof, and (vi) in the case of the Leased
---------
Premises, rights, title and interest of the Lessor under the Trust Lease and any
Liens against the Lessor's interest in the Leased Land and the Leased Premises
(the Liens described in clauses (i) through (vi) of this sentence, collectively,
"Permitted Collateral Liens").
--------------------------
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SECTION 4.7 Environmental.
-------------
(i) Hazardous Materials. The Trustor shall (A) comply with any
-------------------
and all present and future Environmental Laws applicable to the Trust Property,
(B) not release, store, treat, handle, generate, discharge or dispose of any
Hazardous Materials at, on, under or from the Trust Property in violation of or
in a manner that could result in any material liability under any present and
future Environmental Law and (C) take all necessary steps to initiate and
expeditiously complete all remedial, corrective and other action to eliminate
any such effect. In the event the Trustor fails to comply with the covenants in
the preceding sentence, the Beneficiary may, in addition to any other remedies
set forth herein, as agent for the Trustor and at the Trustor's sole cost and
expense, cause any remediation, removal or response action relating to Hazardous
Materials required by applicable Environmental Laws to be taken and the Trustor
shall provide to the Beneficiary and its agents and employees access to the
Trust Property for such purpose. Any reasonable costs or expenses incurred by
the Beneficiary for such purpose shall be immediately due and payable by the
Trustor and shall bear interest at the Default Rate. The Beneficiary shall have
the right at any time when an Event of Default shall have occurred and be
continuing and at such other times when a potential violation of any present or
future Environmental Law exists which in the Beneficiary's reasonable judgment
could result in any material liability or obligation under such Environmental
Law, at the sole cost and expense of the Trustor, to conduct an environmental
audit of the Trust Property by such persons or firms appointed by the
Beneficiary, and the Trustor shall cooperate in all respects in the conduct of
such environmental audit, including, without limitation, by providing access to
the Trust Property and to all records in the Trustor's or any of their
respective agents' possession relating thereto. To the extent that any such
environmental audit identifies conditions which in the Beneficiary's reasonable
judgment would result in any material liability or obligation under any present
or future Environmental Law, the Trustor agree (to the extent caused by the
Trustor) to expeditiously correct any such violation or respond to conditions
giving rise to such liability or obligations in a manner which complies in all
material respects with the Environmental Laws and mitigates associated health
and environmental risks. The Trustor shall indemnify and hold the Beneficiary
and each of the other Secured Parties harmless from and against all loss, cost,
damage or reasonable expense (including, without limitation, reasonable
attorneys' and consultants' fees and disbursements) that the Beneficiary or any
other Secured Party may sustain by reason of the assertion against the
Beneficiary or any Secured Party by any party of any claim relating to such
Hazardous Materials on, under or from the Trust Property or actions taken with
respect thereto as authorized hereunder, except to the extent arising from the
gross negligence or willful misconduct of the Beneficiary or any other Secured
Party. The foregoing indemnification shall survive repayment of all Secured
Obligations and any release or assignment hereof; and
(ii) Asbestos. The Trustor shall neither install nor permit to
--------
be installed in or removed from the Trust Property, asbestos or any
asbestos-containing material (collectively, "ACM") except in compliance, in all
material respects, with all applicable Environmental Laws, and with respect to
any ACM currently present in the Trust Property, the Trustor shall promptly
either (A) remove any ACM which such Environmental Laws require to be removed
(and, in the case of the Leased Premises, to the extent permitted by the Trust
Lease) or (B) otherwise comply, in all material respects, with such
Environmental Laws with respect to such ACM, all at the Trustor's sole cost and
expense. If the Trustor shall fail so to remove any ACM or otherwise comply, in
all material respects, with such laws or regulations, the Beneficiary may, in
addition to any other remedies set forth herein, take reasonable or necessary
steps to eliminate any ACM from the Trust Property or otherwise comply, in all
material respects, with applicable law, regulations or orders and the Trustor
shall provide to the Beneficiary and its agents and employees access to the
Trust Property for such purpose. Any reasonable costs or expenses incurred by
the Beneficiary for such
-21-
purpose shall be immediately due and payable by the Trustor and bear interest at
the Default Rate. The Trustor shall indemnify and hold the Beneficiary and the
other Secured Parties harmless from and against all loss, cost, damage and
expense (including, without limitation, reasonable attorneys' and consultants'
fees and disbursements) that the Beneficiary or the other Secured Parties may
sustain, as a result of the presence of any ACM and any removal thereof from the
Trust Property by the Trustor or compliance with all applicable Environmental
Laws, except to the extent arising from the gross negligence or willful
misconduct of the Beneficiary or any other Secured Party. The foregoing
indemnification shall survive repayment of all Secured Obligations and any
release or assignment hereof.
SECTION 4.8 Estoppel Certificates. The Trustor shall, from time
---------------------
to time, upon thirty (30) days' prior written reasonable request of the
Beneficiary, execute, acknowledge and deliver to the Beneficiary an Officers'
Certificate stating that this Deed of Trust, the Indenture, the Notes and the
Collateral Documents are unmodified and in full force and effect (or, if there
have been modifications, that this Deed of Trust, the Indenture, the Notes and
the Collateral Documents, as applicable, is or are in full force and effect as
modified and setting forth such modifications) and stating the date to which
principal and interest have been paid on the Notes.
ARTICLE V
LEASES
SECTION 5.1 Trustor's Affirmative Covenants with Respect to
-----------------------------------------------
Leases. With respect to each Lease, the Trustor shall:
- ------
(i) observe and perform, in all material respects, all the
obligations imposed upon the Landlord under such Lease;
(ii) promptly send copies to the Beneficiary of all notices of
default which the Trustor shall send or receive thereunder; and
(iii) enforce all of the terms, covenants and conditions contained
in such Lease upon the part of the Tenant thereunder to be observed or
performed to the extent it would be commercially reasonable to do so.
SECTION 5.2 Trustor's Negative Covenants with Respect to Leases.
---------------------------------------------------
With respect to each Lease, the Trustor shall not, without the prior written
consent of the Beneficiary, which consent shall not be unreasonably withheld:
(i) receive or collect, or permit the receipt or collection of,
any Rent under such Lease more than one (1) month in advance of the
respective period in respect of which such Rent is to accrue, except:
(A) in connection with the execution and delivery of such
Lease (or of any amendment to such Lease), Rent
thereunder may be collected and received in advance in
an amount not in excess of one (1) month's Rent;
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(B) the amount held by Landlord as a reasonable security
deposit thereunder; and
(C) any amount received and collected for escalation and
other charges in accordance with the terms of such
Lease;
(ii) assign, transfer or hypothecate (other than to the
Beneficiary hereunder) any Rent under such Lease whether then due or
to accrue in the future or the interest of the Trustor as Landlord
under such Lease;
(iii) enter into any amendment or modification of such Lease
which would materially decrease the unexpired term thereof or decrease
the amount of the Rents payable thereunder or materially impair the
value or utility of the Trust Property or the security provided by this
Deed of Trust;
(iv) terminate (whether by exercising any contractual right of
the Trustor to recapture leased space or otherwise) or permit the
termination of such Lease or accept surrender of all or any portion of
the space demised under such Lease prior to the end of the term thereof
or accept assignment of such Lease to the Trustor unless:
(A) the Tenant under such Lease has not paid the equivalent
of two (2) months' Rent and the Trustor has made
reasonable efforts to collect such Rent; and
(B) it would be commercially reasonable to terminate such
Lease; or
(v) waive, excuse, condone or in any manner discharge or release
any Tenants of or from the material obligations of such Tenants under
their respective Leases or guarantors of Tenants from any material
obligations under any guarantees of the Leases except as the same would
be done by a Prudent Operator with due regard for the security afforded
the Beneficiary thereby.
SECTION 5.3 Additional Requirements with Respect to New Leases.
--------------------------------------------------
In addition to the requirements of Sections 5.1 and 5.2 hereof, the Trustor
------------ ---
shall not enter into any Lease after the date hereof unless the Tenant under
such Lease has entered into a Subordination Agreement and has otherwise complied
with the provisions of Section 10.06 of the Indenture.
ARTICLE VI
CONCERNING ASSIGNMENT OF LEASES AND RENTS
SECTION 6.1 Present Assignment; License to the Trustor. Section
------------------------------------------
2.2 of this Deed of Trust constitutes a present, absolute, effective,
irrevocable and complete assignment by the Trustor to the Beneficiary of the
Leases and Rents and the right, subject to applicable law, to collect all sums
payable to the Trustor thereunder and apply the same as the Beneficiary may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable costs and expenses in connection with the maintenance, operation,
improvement, insurance, taxes and upkeep of the Trust Property), which is not
conditioned upon the Beneficiary being in possession of the Owned Premises or
Leased Premises. The Beneficiary
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hereby grants to the Trustor, however, a license to collect and apply the Rents
and to enforce the obligations of Tenants under the Leases. Immediately upon the
occurrence of and during the continuance of any Event of Default or a Default,
the license granted in the immediately preceding sentence shall cease and
terminate, with or without any notice, action or proceeding or the intervention
of a receiver appointed by a court.
SECTION 6.2 Collection of Rents by the Beneficiary.
--------------------------------------
(i) From and after the occurrence and during the continuance of
an Event of Default or a Default, any Rents receivable by the Beneficiary
hereunder, after payment of all proper costs and expenses as Beneficiary may, in
its sole discretion, determine to be appropriate (including the payment of
reasonable costs and expenses in connection with the maintenance, operation,
improvement, insurance, taxes and upkeep of the Trust Property), shall be
applied to the Secured Obligations or, at the option of the Beneficiary, shall
be held by the Beneficiary as additional collateral to secure the performance by
the Trustor of the Secured Obligations. The Beneficiary shall be accountable to
the Trustor only for Rents actually received by the Beneficiary. The collection
of such Rents and the application thereof shall not cure or waive any Event of
Default or a Default or waive, modify or affect notice of Event of Default or a
Default or invalidate any act done pursuant to such notice.
(ii) The Trustor hereby irrevocably authorizes and directs
Tenant under each Lease to rely upon and comply with any and all notices or
demands from the Beneficiary for payment of Rents to the Beneficiary and the
Trustor shall have no claim against Tenant for Rents paid by Tenant to the
Beneficiary pursuant to such notice or demand.
SECTION 6.3 No Release. Neither this Deed of Trust nor any
----------
action or inaction on the part of the Beneficiary shall release any Tenant under
any Lease, any guarantor of any Lease or the Trustor from any of their
respective obligations under such Leases or constitute an assumption of any such
obligation on the part of the Beneficiary. No action or failure to act on the
part of the Trustor shall adversely affect or limit the rights of the
Beneficiary under this Deed of Trust or, through this Deed of Trust, under such
Leases. Nothing contained herein shall operate or be construed to (i) obligate
the Beneficiary to perform any of the terms, covenants or conditions contained
in any Lease or otherwise to impose any obligation upon the Beneficiary with
respect to such Lease (including, without limitation, any obligation arising out
of any covenant of quiet enjoyment contained in such Lease in the event that
Tenant under such Lease shall have been joined as a party defendant in any
action by which the estate of such Tenant shall be terminated) or (ii) place
upon the Beneficiary any obligation for the operation, control, care, management
or repair of the Owned Premises or Leased Premises.
SECTION 6.4 Irrevocable Interest. All rights, powers and
--------------------
privileges of the Beneficiary herein set forth are coupled with an interest and
are irrevocable, subject to the terms and conditions hereof, and the Trustor
shall not take any action under the Leases or otherwise which is inconsistent
with this Deed of Trust or any of the terms hereof and any such action
inconsistent herewith or therewith shall be void.
SECTION 6.5 Amendment to Leases. Each Lease, including, without
-------------------
limitation, all amendments, modifications, supplements, replacements, extensions
and renewals thereof, shall continue to be subject to the provisions hereof
without the necessity of any further act by any of the parties hereto.
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ARTICLE VII
TAXES AND CERTAIN STATUTORY LIENS
SECTION 7.1 Payment of Charges. Unless and to the extent
------------------
contested by the Trustor in accordance with the provisions of Article IX hereof,
----------
the Trustor shall pay and discharge, or cause to be paid and discharged, from
time to time when the same shall become due (or within any applicable grace
period) (and, in the case of the Leased Premises, to the extent such payment and
discharge shall be due from the Trustor pursuant to the terms of the Trust
Lease), all Charges subject to this Article VII. The Trustor shall, upon the
-----------
Beneficiary's request, deliver to the Beneficiary evidence of the payment by the
Trustor of all such Charges.
SECTION 7.2 Escrow of Taxes. From and after the occurrence and
---------------
during the continuance of an Event of Default or a Default, at the option and
upon the request of the Beneficiary, the Trustor shall deposit with the
Beneficiary in an account maintained by the Beneficiary (the "Tax Escrow Fund"),
---------------
on the first day of each month, an amount estimated by the Beneficiary to be
equal to one-twelfth of the annual real property taxes and other annual Charges
required to be discharged by the Trustor under Section 7.1 hereof. Such amounts
-----------
shall be held by the Beneficiary without interest to the Trustor and applied to
the payment of the obligations in respect of which such amounts were deposited,
in such priority as the Beneficiary shall determine, on or before the respective
dates on which such obligations or any part thereof would become delinquent.
Nothing contained in this Article VII shall (i) affect any right or remedy of
-----------
the Beneficiary under any provision hereof or of any statute or rule of law to
pay any such amount as provided above from its own funds and to add the amount
so paid, together with interest at the Default Rate during such time that any
amount remains outstanding, to the Secured Obligations or (ii) relieve the
Trustor of its obligations to make or provide for the payment of the annual real
property taxes and other annual Charges required to be discharged by the Trustor
under Section 7.1 hereof. Notwithstanding the provisions of this Section 7.2,
----------- -----------
with respect to the Leased Land, no deposit with the Beneficiary in respect of
any Charge shall be required if and for so long as deposits in respect of such
Charge are made by the Grantor to the Lessor under the Trust Lease.
SECTION 7.3 Certain Statutory Liens. Unless and to the extent
-----------------------
contested by the Trustor in accordance with the provisions of Article IX hereof,
----------
the Trustor shall timely pay, or cause to be paid, all lawful claims and demands
of mechanics, materialmen, laborers, government agencies administering worker's
compensation insurance, old age pensions and social security benefits and all
other claims, judgments, demands or amounts of any nature which, relate to the
Trustor's (or its successors' or assignees') actions at or affecting the Owned
Premises, Leased Premises or the Trust Property and, if unpaid, would result in,
or permit the creation of, a Lien on the Trust Property or any part thereof, or
which would result in forfeiture of all or any part of the Trust Property.
SECTION 7.4 Stamp and Other Taxes. Unless and to the extent
---------------------
contested by the Trus-tor in accordance with the provisions of Article IX
----------
hereof, the Trustor shall pay any United States documentary stamp taxes, with
interest and fines and penalties, and any mortgage recording taxes, with
interest and fines and penalties, that may hereafter be levied, imposed or
assessed under or upon or by reason hereof or the Secured Obligations or any
instrument or transaction affecting or relating to either thereof and in default
thereof the Beneficiary may advance the same and the amount so advanced shall be
payable by the Trustor to the Beneficiary in accordance with the provisions of
Section 14.5 hereof.
- ------------
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SECTION 7.5 Certain Tax Law Changes. In the event of the
-----------------------
passage after the date hereof of any law deducting from the value of real
property, for the purpose of taxation, amounts in respect of any Lien thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes or the manner of the collection of any
Charges, and imposing any Charges, either directly or indirectly, on this Deed
of Trust, the Indenture or any other Collateral Document, the Trustor shall
promptly pay to the Beneficiary such amount or amounts as may be necessary from
time to time to pay any such Charges.
SECTION 7.6 Proceeds of Tax Claim. In the event that the
---------------------
proceeds of any tax claim to which the Trustor is entitled are paid after the
Beneficiary has exercised its right to foreclose the Lien hereof, such proceeds
shall be paid to the Beneficiary to satisfy any deficiency remaining after such
foreclosure. The Beneficiary shall retain its interest in the proceeds of any
tax claim during any redemption period. The amount of any such proceeds in
excess of any deficiency claim of the Beneficiary shall in a prompt manner be
released to the Issuer.
ARTICLE VIII
INSURANCE
SECTION 8.1 Required Insurance Policies and Coverages. The
-----------------------------------------
Trustor shall maintain in respect of the Owned Premises and Leased Premises the
insurance policies and coverages required under Section 4.19(b) of the
Indenture.
SECTION 8.2 Delivery After Foreclosure. In the event that the
--------------------------
proceeds of any insurance claim to which the Trustor is entitled are paid after
the Beneficiary has exercised its right to foreclose the Lien hereof, such
proceeds shall be paid to the Beneficiary to satisfy any deficiency remaining
after such foreclosure. Beneficiary shall retain its interest in the Insurance
Policies required to be maintained pursuant to this Deed of Trust during any
redemption period. The amount of any such proceeds in excess of any deficiency
claim of the Beneficiary shall be released to the Issuer.
ARTICLE IX
CONTESTING OF PAYMENTS
SECTION 9.1 Contesting of Taxes and Certain Statutory Liens.
-----------------------------------------------
The Trustor may at its own expense contest the validity, amount or applicability
of any Charges as long as the contest thereof shall be conducted in accordance
with, and permitted pursuant to the provisions of, the Indenture.
Notwithstanding the foregoing provisions of this Section 9.1, (i) no contest of
-----------
any such obligations may be pursued by the Trustor (A) if such contest would
expose the Beneficiary or any Holder to any possible criminal liability or (B)
unless the Trustor shall have furnished a bond or other security therefor
reasonably satisfactory to the Beneficiary or such Holder, as the case may be,
any additional civil liability for failure to comply with such obligations and
(ii) if at any time payment or performance of any obligation contested by the
Trustor pursuant to this Section 9.1 shall become necessary to prevent the
-----------
imminent imposition of remedies because of non-payment, the Trustor shall pay or
perform the same in sufficient time to prevent the imposition of remedies in
respect of such default or prospective default.
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SECTION 9.2 Contesting of Insurance. The Trustor shall not take
-----------------------
any action that would reasonably be expected to cause the termination,
revocation or denial of any insurance coverage required to be maintained under
this Deed of Trust or that would be the basis for a defense to any claim under
any Insurance Policy maintained in respect of the Owned Premises or Leased
Premises and the Trustor shall otherwise comply in all respects with all
Insurance Requirements in respect of the Owned Premises and Leased Premises;
provided, however, that the Trustor may, at its own expense and after written
- -------- -------
notice to the Beneficiary, (i) contest the applicability or enforceability of
any such Insurance Requirements by appropriate legal proceedings, prosecution of
which does not constitute a basis for cancellation or revocation of any
insurance coverage required under Article VIII hereof or (ii) cause the
------------
Insurance Policy containing any such Insurance Requirement to be replaced by a
new policy complying with the provisions of Article VIII hereof.
------------
ARTICLE X
DESTRUCTION, CONDEMNATION AND RESTORATION
SECTION 10.1 Destruction. If there shall occur any Destruction
-----------
of the Trust Property, individually or in the aggregate, in excess of $100,000,
the Trustor shall promptly send to the Beneficiary a written notice setting
forth the nature and extent of such Destruction. The Proceeds of any insurance
payable in respect of such Destruction are hereby assigned (with resepct to the
Leased Premises, subject to and to the extent permitted by the Trust Lease) to
and shall be paid to the Beneficiary. The Net Loss Proceeds arising out of such
Destruction, shall be applied in accordance with the provisions of Sections
4.16, 11.02, and 10.05(c) of the Indenture.
SECTION 10.2 Condemnation. If there shall occur any Taking or
------------
the commencement of any proceeding thereof, the Trustor shall immediately notify
the Beneficiary upon receiving notice of such Taking or commencement of
proceedings therefor. The Beneficiary may, at its option, participate in any
proceedings or negotiations which might result in any Taking, and the Trustor
shall deliver or cause to be delivered to the Beneficiary all instruments
requested by it to permit such participation. The Beneficiary may be represented
by counsel reasonably satisfactory to it at the reasonable expense of the
Trustor in connection with any such participation. The Trustor shall pay all
reasonable fees, costs and expenses incurred by the Beneficiary in connection
with any Taking and in seeking and obtaining any award or payment on account
thereof. Any proceeds, award or payment in respect of any Taking of any Trust
Property are hereby assigned by the Trustor (with resepct to the Leased
Premises, subject to and to the extent permitted by the Trust Lease) and shall
be paid to the Beneficiary. The Trustor shall take all steps necessary to notify
the condemning authority of such assignment. The Net Loss Proceeds arising out
of such Taking shall be applied in accordance with the provisions of Sections
4.16, 11.02, and 10.05(c) of the Indenture.
ARTICLE XI
EVENTS OF DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. It shall be an Event of Default
-----------------
hereunder if there shall have occurred and be continuing an Event of Default
under the Indenture.
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SECTION 11.2 Remedies in Case of an Event of Default. If any
---------------------------------------
Event of Default shall have occurred and be continuing, the Beneficiary or the
Trustee may at the Beneficiary's option, in addition to any other action
permitted under this Deed of Trust or the Indenture or by law, statute or in
equity, take one or more of the following actions to the greatest extent
permitted by local law:
(i) by written notice to the Trustor and the Issuer, declare
the entire unpaid amount of the Secured Obligations to be due and payable
immediately;
(ii) personally, or by its agents or attorneys, (A) give notice
of such Event of Default to the Lessor under the Trust Lease, (B) to the
extent permitted by the Trust Lease, act in all respects as lessee under
the Trust Lease and perform on behalf of and for the account of the Trustor
any of the obligations of lessee thereunder, (C) enter into and upon and
take possession of all or any part of the Owned Premises and Leased
Premises together with the books, records and accounts of the Trustor
relating thereto and, exclude the Trustor, its agents and servants wholly
therefrom, (D) use, operate, manage and control the Leased Premises and
conduct the business thereof, (E) maintain and restore the Owned Premises
and Leased Premises, (F) make all necessary or proper repairs, renewals and
replacements and such useful Alterations thereto and thereon as the
Beneficiary may deem advisable, (G) manage, lease and operate the Owned
Premises and Leased Premises and carry on the business thereof and exercise
all rights and powers of the Trustor with respect thereto either in the
name of the Trustor or otherwise or (H) collect and receive all Rents. The
Beneficiary shall be under no liability for or by reason of any such taking
of possession, entry, removal or holding, operation or management except
that any amounts so received by the Beneficiary shall be applied in
accordance with the provisions of the Indenture;
(iii) with or without entry, personally or by its agents or
attorneys, (A) sell the Trust Property and all estate, right, title and
interest, claim and demand therein at one or more sales in one or more
parcels, in accordance with the provisions of Section 11.3, including,
------------
without limitation, providing for the exercise of the power of sale
hereunder in accordance with the provisions of Section 11.3(vii) or (B)
-----------------
institute and prosecute proceedings for the complete or partial foreclosure
of the Lien and security interests created and evidenced hereby; or
(iv) take such steps to protect and enforce its rights whether
by action, suit or proceeding at law or in equity for the specific
performance of any covenant, condition or agreement in the Indenture, the
Notes and the Collateral Documents, or in aid of the execution of any power
granted in this Deed of Trust, or for any foreclosure hereunder, or for the
enforcement of any other appropriate legal or equitable remedy or otherwise
as the Beneficiary shall elect.
SECTION 11.3 Sale of Trust Property if Event of Default Occurs; Proceeds
-----------------------------------------------------------
of Sale; Exercise of Power of Sale. Trustor agrees that, to the fullest
----------------------------------
extent permitted by law:
(i) If any Event of Default shall have occurred and be
continuing, the Beneficiary or the Trustee may institute an action to foreclose
this Deed of Trust or take such other action as may be permitted and available
to the Beneficiary at law or in equity for the enforcement of the Indenture and
the Notes and realization on the Trust Property and proceeds thereon through
power of sale or to final judgment and execution thereof for the Secured
Obligations, and in furtherance thereof the Beneficiary or the Trustee may sell
the Trust Property at one or more sales, as an entirety or in parcels, at such
time and place, upon such terms and after such notice thereof as may be required
or permitted by law or statute or
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in equity. The Beneficiary or the Trustee may execute and deliver to the
purchaser at such sale a conveyance of the Trust Property in fee simple and an
assignment or conveyance of all the Trustor's Interest in the Leases and the
Trust Property, each of which conveyances and assignments shall contain recitals
as to the Event of Default upon which the execution of the power of sale herein
granted depends, and the Trustor hereby constitutes and appoints the Beneficiary
or the Trustee the true and lawful attorneys-in-fact of the Trustor to make any
such recitals, sale, assignment and conveyance, and all of the acts of the
Beneficiary or the Trustee as such attorneys-in-fact are hereby ratified and
confirmed. The Trustor agrees that such recitals shall be binding and conclusive
upon the Trustor and that any assignment or conveyance to be made by the
Beneficiary or the Trustee shall divest the Trustor of all right, title,
interest, equity and right of redemption, including any statutory redemption, in
and to the Trust Property. The power and agency hereby granted are coupled with
an interest and are irrevocable by death or dissolution, or otherwise, and are
in addition to any and all other remedies which the Beneficiary or the Trustee
may have hereunder, at law or in equity. So long as the Secured Obligations, or
any part thereof, remain unpaid, the Trustor agrees that possession of the Trust
Property by the Trustor, or any Person claiming under the Trustor, shall be as
tenant, and, in case of a sale under power or upon foreclosure as provided in
this Deed of Trust, the Trustor and any Person in possession under the Trustor,
as to whose interest such sale was not made subject, shall, at the option of the
purchaser at such sale, then become and be tenants holding over, and shall
forthwith deliver possession to such purchaser, or be summarily dispossessed in
accordance with the laws applicable to tenants holding over. In case of any sale
under this Deed of Trust by virtue of the exercise of the powers herein granted,
or pursuant to any order in any judicial proceeding or otherwise, the Trust
Property may be sold as an entirety or in separate parcels in such manner or
order as the Beneficiary or the Trustee in its sole discretion may elect. One or
more exercises of powers herein granted shall not extinguish or exhaust such
powers, until the entire Trust Property is sold or all amounts secured hereby
are paid in full.
(ii) In the event of any sale made under or by virtue of this
Article XI, the entire principal of, and interest in respect of the Secured
- ----------
Obligations, if not previously due and payable, shall, at the option of the
Beneficiary, immediately become due and payable, anything in this Deed of Trust
to the contrary notwithstanding.
(iii) The Proceeds of any sale made under or by virtue of this
Article XI, together with any other sums which then may be held by the
- ----------
Beneficiary or the Trustee under this Deed of Trust, whether under the
provisions of this Article XI or otherwise, shall be applied in accordance with
----------
the provisions of the Indenture.
(iv) The Beneficiary may bid for and acquire the Trust Property
or any part thereof at any sale made under or by virtue of this Article XI and,
----------
in lieu of paying cash therefor, may make settlement for the purchase price by
crediting against the purchase price the unpaid amounts (whether or not then due
and owing) in respect of the Secured Obligations, after deducting from the sales
price the expense of the sale and the reasonable costs of the action or
proceedings and any other sums that the Beneficiary is authorized to deduct
under this Deed of Trust.
(v) The Beneficiary or the Trustee may adjourn from time to
time any sale by it to be made under or by virtue hereof by announcement at the
time and place appointed for such sale or for such adjourned sale or sales, and,
the Beneficiary or the Trustee, without further notice or publication, may make
such sale at the time and place to which the same shall be so adjourned.
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(vi) If the Owned Premises or Leased Premises are comprised of more
than one parcel of land, the Beneficiary or the Trustee may take any of the
actions authorized by this Section 11.3 in respect of any or a number of
individual parcels.
(vii) Without limiting the generality of the foregoing, if the notice
of breach and election to sell which is required by Chapter 107 of the Nevada
Revised Statutes shall be first recorded, and if the time period after such
recording, which is required by Chapter 107 of the Nevada Revised Statutes,
shall have elapsed, then Trustee, its successors or assigns, on demand by
Beneficiary, shall sell the above-granted Trust Property, in order to accomplish
the objects of these trusts, in the manner following, namely:
(a) the Trustee shall first give notice of the time and place of such
sale, in the manner provided by the laws of the State of Nevada for the
sale of real property under execution, and may from time to time
postpone such sale by such advertisement as it may deem reasonable, or
without further advertisement, by proclamation made to the persons
assembled at the time and place previously appointed and advertised for
such sale (as such time may have been previously postponed), and: (aa)
on the day of sale so advertised, the Trustee may, in its discretion,
sell the Trust Property so advertised, or any portion thereof, in one
or more lots (and thereafter postpone such sale, in accordance
herewith, as to any portion of the Trust Property remaining unsold, if
Trustee so elects); and (bb) on any day to which such sale may have
been postponed, the Trustee may, in its discretion, sell all or any
portion of the Trust Property then remaining unsold, in one or more
lots (and thereafter further postpone such sale, in accordance
herewith, as to any portion of the Trust Property remaining unsold, if
Trustee so elects); all at public auction, at the time and place
specified in the notice (as such time may have been postponed), either
in the county in which the Trust Property, or any part thereof, to be
sold, is situated, or at the principal office of the Trustee, in its
discretion, to the highest cash bidder. The Beneficiary, Trustee or
holders of the Notes (and/or other obligations) secured hereby may bid
(including by credit bid) and purchase at such sale. The Beneficiary
may, after recording the notice of breach and election, waive or
withdraw the same or any proceedings there-under, and shall thereupon
be restored to its former position and have and enjoy the same rights
as though such notice had not been recorded.
(b) the Trustee, upon such sale, shall make (without warranty), execute
and, after due payment made, deliver to purchaser or purchasers, his,
her or their heirs or assigns, a deed or deeds of the premises so sold
which shall convey to the purchaser all the title of the Trustor in the
premises so sold. The recital, in any such deed, of: (aa) default; (bb)
recording notice of breach and election of sale; (cc) the elapsing of
the three (3) month period after such recording; (dd) the giving of
notice of sale; and (ee) demand by Beneficiary, its heirs or assigns,
that such sale should be made, shall be conclusive proof of such
default, recording, elapsing of time and of the due giving of notice
and that the sale was regularly and validly made on due and proper
demand by Beneficiary, its heirs and assigns; and any such deed or
deeds with such recitals therein shall be effectual and conclusive
against the Trustor or its successors and assigns, and all other
Persons; and the receipt for the purchase money recited or contained in
any deed executed to the purchaser as aforesaid shall be sufficient
discharge to such purchaser from all obligation to see to the proper
application of the purchase money, according to the provisions hereof.
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SECTION 11.4 Additional Remedies in Case of an Event of Default.
--------------------------------------------------
Trustor agrees that, to the fullest extent permitted by law:
(i) The Beneficiary shall be entitled to recover judgment as
aforesaid either before, after or during the pendency of any proceedings for the
enforcement of the provisions hereof, and the right of the Beneficiary to
recover such judgment shall not be affected by any entry or sale hereunder, or
by the exercise of any other right, power or remedy for the enforcement of the
provisions hereof, or the foreclosure of, or absolute conveyance pursuant to,
this Deed of Trust. In case of proceedings against the Trustor in insolvency or
bankruptcy or any proceedings for its reorganization or involving the
liquidation of its assets, the Beneficiary shall be entitled to prove the whole
amount of principal and interest and other payments, charges and costs due in
respect of the Secured Obligations to the full amount thereof without deducting
therefrom any proceeds obtained from the sale of the whole or any part of the
Trust Property; provided, however, that in no case shall the Beneficiary receive
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a greater amount than the aggregate of such principal, interest and such other
payments, charges and costs (with interest at the Default Rate) from the
proceeds of the sale of the Trust Property and the distribution from the estate
of the Trustor.
(ii) Any recovery of any judgment by the Beneficiary and any levy of
any execution under any judgment upon the Trust Property shall not affect in any
manner or to any extent the Lien and security interests created and evidenced
hereby upon the Trust Property or any part thereof, or any conveyances, powers,
rights and remedies of the Beneficiary hereunder, but such conveyances, powers,
rights and remedies shall continue unimpaired as before.
(iii) Any monies collected by the Beneficiary under this Section 11.4
------------
shall be applied in accordance with the provisions of Section 11.3(iii).
-----------------
SECTION 11.5 Legal Proceedings After an Event of Default. Trustor
-------------------------------------------
agrees that, to the fullest extent permitted by law:
(i) After the occurrence and during the continuance of any Event of
Default and immediately upon the commencement of any action, suit or legal
proceedings to obtain judgment for the Secured Obligations or any part thereof,
or of any proceedings to foreclose the Lien and security interest created and
evidenced hereby or otherwise enforce the provisions hereof or of any other
proceedings in aid of the enforcement hereof, the Trustor shall enter its
voluntary appearance in such action, suit or proceeding.
(ii) Upon the occurrence and during the continuance of an Event of
Default, the Beneficiary shall be entitled forthwith as a matter of right,
concurrently or independently of any other right or remedy hereunder either
before or after declaring the Secured Obligations or any part thereof to be due
and payable, to the appointment of a receiver without giving notice to any party
and without regard to the adequacy or inadequacy of any security for the Secured
Obligations or the solvency or insolvency of any person or entity then legally
or equitably liable for the Secured Obligations or any portion thereof. The
Trustor hereby consents to the appointment of such receiver. Notwithstanding the
appointment of any receiver, the 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 the Indenture to the Beneficiary.
(iii) The Trustor shall not (A) at any time insist upon, or plead, or
in any manner whatsoever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption
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from execution or sale of the Trust Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
and terms of performance hereof, (B) claim, take or insist on any benefit or
advantage of any law now or hereafter in force providing for the valuation or
appraisal of the Trust Property, or any part thereof, prior to any sale or sales
of the Trust Property which may be made pursuant to this Deed of Trust, or
pursuant to any decree, judgment or order of any court of competent jurisdiction
or (C) after any such sale or sales, claim or exercise any right under any
statute heretofore or hereafter enacted to redeem the property so sold or any
part thereof. To the extent permitted by applicable law, the Trustor hereby
expressly (A) waives all benefit or advantage of any such law or laws,
including, without limitation, any statute of limitations applicable to this
Deed of Trust, (B) waives all rights to have the Trust Property marshalled on
any foreclosure of this Deed of Trust, (C) waives any and all rights to trial by
jury in any action or proceeding related to the enforcement hereof, (D) waives
any objection which it may now or hereafter have to the laying of venue of any
action, suit or proceeding brought in connection with this Deed of Trust and
further waives and agrees not to plead that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum and (E)
covenants not to hinder, delay or impede the execution of any power granted or
delegated to the Beneficiary by this Deed of Trust but to suffer and permit the
execution of every such power as though no such law or laws had been made or
enacted. The Beneficiary shall not be liable for any incorrect or improper
payment made pursuant to this Article XI in the absence of gross negligence or
----------
willful misconduct.
SECTION 11.6 Remedies Not Exclusive. No remedy conferred upon
----------------------
or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive
of any other remedy or remedies, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Deed
of Trust or now or hereafter existing at law or in equity. Any delay or omission
of the Beneficiary to exercise any right or power accruing on any Event of
Default shall not impair any such right or power and shall not be construed to
be a waiver of or acquiescence in any such Event of Default. Every power and
remedy given by this Deed of Trust may be exercised from time to time
concurrently or independently, when and as often as may be deemed expedient by
the Beneficiary in such order and manner as the Beneficiary, in its sole
discretion, may elect. If the Beneficiary accepts any monies required to be paid
by the Trustor under this Deed of Trust after the same become due, such
acceptance shall not constitute a waiver of the right either to require prompt
payment, when due, of all other sums secured by this Deed of Trust or to declare
an Event of Default with regard to subsequent defaults. If the Beneficiary
accepts any monies required to be paid by the Trustor under this Deed of Trust
in an amount less than the sum then due, such acceptance shall be deemed an
acceptance on account only and on the condition that it shall not constitute a
waiver of the obligation of the Trustor to pay the entire sum then due, and the
Trustor's failure to pay the entire sum then due shall be and continue to be a
default hereunder notwithstanding acceptance of such amount on account.
SECTION 11.7 Sale of Trust Lease. The word "sale" as used in
-------------------
this Article XI with respect to the Trust Lease shall mean the sale, transfer,
----------
assignment or conveyance for value of the leasehold interest of the Trustor in
the Trust Lease, together with all of the Trustor's right, title and interest in
and to the other items comprising the Trust Property.
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ARTICLE XII
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 12.1 Security Agreement. To the extent that the Trust
------------------
Property includes personal property or items of personal property which are or
are to become fixtures under applicable law, this Deed of Trust shall also be
construed as a security agreement under the UCC; and, upon and during the
continuance of an Event of Default, the Beneficiary shall be entitled with
respect to such personal property to exercise all remedies hereunder, all
remedies available under the UCC with respect to fixtures and all other remedies
available under applicable law. Without limiting the foregoing, such personal
property may, at the Beneficiary's option and upon and during the continuance of
an Event of Default, (i) be sold hereunder together with any sale of any portion
of the Trust Property or otherwise, (ii) be sold pursuant to the UCC, or (iii)
be dealt with by the Beneficiary in any other manner permitted under applicable
law. The Beneficiary may require the Trustor to assemble such personal property
and make it available to the Beneficiary at a place to be designated by the
Beneficiary. The Trustor acknowledges and agrees that a disposition of the
personal property in accordance with the Beneficiary's rights and remedies in
respect to the Trust Property as heretofore provided is a commercially
reasonable disposition thereof; provided, however, that the Beneficiary shall
give the Trustor not less than ten (10) days' prior notice of the time and place
of any intended disposition. The Beneficiary may, in the sole discretion of the
Beneficiary, appoint the Trustee as the agent of the Beneficiary for the purpose
of disposition of the personal property in accordance with the UCC.
SECTION 12.2 Fixture Filing. To the extent that the Trust
--------------
Property includes items of personal property which are or are to become fixtures
under applicable law, and to the extent permitted under applicable law, the
filing hereof in the real estate records of the county in which such Trust
Property is located shall also operate from the time of filing as a fixture
filing with respect to such Trust Property, and the following information is
applicable for the purpose of such fixture filing, to wit:
------------------------------------------------------------------------------------------------------------
Name and Address of the debtor: Name and Address of the secured party:
The Trustor being the type of entity and The Beneficiary having the address described
having the organizational identification in the Preamble hereof.
number and address described in the Preamble hereof.
------------------------------------------------------------------------------------------------------------
This Financing Statement covers the following types or items of property:
The Trust Property.
This instrument covers goods or items of personal property which are or are
to become fixtures upon the real property described in Schedule A attached
hereto.
The name of the record owner of the Property on which such fixtures are or
are to be located is (i) in the case of Parcels 2, 3, 4, and 5 described on
Schedule A attached hereto, Gold Dust West Casino, Inc., and (ii) in the case
of Parcel 1 described on Schedule A attached hereto, Chester J. Piazzo and
Darlene Piazzo, as Co-Trustees of the C. & D. Piazzo
-------------------------------------------------------------------------------
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Family Trust.
---------------------------------------------------------------------
ARTICLE XIII
FURTHER ASSURANCES
SECTION 13.1 Recording Documentation To Assure Security. The Trustor shall,
------------------------------------------
forthwith after the execution and delivery hereof and thereafter, from time to
time, cause this Deed of Trust and any financing statement, continuation
statement or similar instrument relating to any thereof or to any property
intended to be subject to the Lien hereof to be filed, registered and recorded
in such manner and in such places as may be required by any present or future
law in order to publish notice of and fully to protect the validity and priority
thereof or the Lien hereof purported to be created upon the Trust Property and
the interest and rights of the Beneficiary therein. The Trustor shall (if it has
not already done so), at its sole cost and expense, properly, duly and validly
record an appropriate memorandum of the Trust Lease and any amendments or
supplements thereto in each jurisdiction in which any of the Leased Premises may
be situated. The Trustor shall pay or cause to be paid all taxes and fees
incident to such filing, registration and recording, and all reasonable expenses
incident to the preparation, execution and acknowledgment thereof, and of any
instrument of further assurance, and all Federal or state stamp taxes or other
taxes, duties and charges arising out of or in connection with the execution and
delivery of such instruments.
SECTION 13.2 Further Acts. The Trustor shall, at the sole cost and expense
------------
of the Trustor, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers, financing statements, continuation statements, instruments and
assurances as the Beneficiary shall from time to time reasonably request, which
may be necessary in the judgment of the Beneficiary from time to time to assure,
perfect, convey, assign, mortgage, transfer and confirm unto the Beneficiary,
the property and rights hereby conveyed or assigned or which the Trustor may be
or may hereafter become bound to convey or assign to the Beneficiary or for
carrying out the intention or facilitating the performance of the terms hereof
or the filing, registering or recording hereof. Without limiting the generality
of the foregoing, in the event that the Beneficiary desires to exercise any
remedies, consensual rights or attorney-in-fact powers set forth in this Deed of
Trust and determines it necessary to obtain any approvals or consents of any
Governmental Authority or any other Person therefor, then, upon the reasonable
request of the Beneficiary, the Trustor agrees to use its reasonable efforts to
assist and aid the Beneficiary to obtain as soon as practicable any necessary
approvals or consents for the exercise of any such remedies, rights and powers.
In the event the Trustor shall fail (i) within ten (10) Business Days after
demand, to execute or take any action required to be executed or taken by the
Trustor under this Section 13.2 to the extent same is necessary to maintain
------------
perfection of the Lien granted to Beneficiary hereunder or (ii) such failure
shall constitute an Event of Default, to execute or take any action required to
be executed or taken by the Trustor under this Section 13.2 (other than the type
------------
described in clause (i) of this sentence) then, in each of the cases described
in clauses (i) and (ii) of this sentence, the Beneficiary may execute or take
the same as the attorney-in-fact for the Trustor, such power of attorney being
coupled with an interest and is irrevocable.
SECTION 13.3 Additional Security. Without notice to or consent of the
-------------------
Trustor and without impairment of the Lien and rights created by this Deed of
Trust, the Beneficiary may accept (but
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the Trustor shall not be obligated to furnish) from the Trustor or from any
other Person, additional security for the Secured Obligations. Neither the
giving hereof nor the acceptance of any such additional security shall prevent
the Beneficiary from resorting, first, to such additional security, and, second,
to the security created by this Deed of Trust without affecting the
Beneficiary's Lien and rights under this Deed of Trust.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Covenants To Run with the Owned Premises and Leased
---------------------------------------------------
Premises. All of the grants, covenants, terms, provisions and conditions in this
- --------
Deed of Trust shall run with the Owned Premises and Leased Premises and shall
apply to, and bind the successors and assigns of, the Trustor. If there shall be
more than one grantor with respect to the Trust Property, the covenants and
warranties hereof shall be joint and several.
SECTION 14.2 No Merger. The rights and estate created by this Deed of
---------
Trust shall not, under any circumstances, be held to have merged into any other
estate or interest now owned or hereafter acquired by the Beneficiary unless the
Beneficiary shall have consented to such merger in writing, such consent not to
be unreasonably withheld.
SECTION 14.3 Concerning Beneficiary and Trustee.
----------------------------------
(i) The Beneficiary has been appointed as trustee pursuant to the
Indenture. The actions of the Beneficiary hereunder are subject to the
provisions of the Indenture. The Beneficiary shall have the right hereunder to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including, without
limitation, the release or substitution of the Trust Property), in accordance
with this Deed of Trust and the Indenture. The Beneficiary may employ agents and
attorneys-in-fact in connection herewith and shall not be liable for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith. The Beneficiary may resign and a successor Beneficiary may be
appointed in the manner provided in the Indenture. Upon the acceptance of any
appointment as the Beneficiary by a successor Beneficiary, that successor
Beneficiary shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Beneficiary under this Deed of
Trust, and the retiring Beneficiary shall thereupon be discharged from its
duties and obligations under this Deed of Trust. After any retiring
Beneficiary's resignation, the provisions hereof shall inure to its benefit as
to any actions taken or omitted to be taken by it under this Deed of Trust while
it was the Beneficiary.
(ii) The Beneficiary shall be deemed to have exercised reasonable
care in the custody and preservation of the Trust Property in its possession if
such Trust Property is accorded treatment substantially equivalent to that which
the Beneficiary, in its individual capacity, accords its own property consisting
of similar instruments or interests, it being understood that neither the
Beneficiary nor any of the Secured Parties shall have responsibility for taking
any necessary steps to preserve rights against any Person with respect to any
Trust Property.
(iii) The Beneficiary shall be entitled to rely upon any written
notice, statement, certificate, order or other document or any telephone message
believed by it to be genuine and correct and to
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have been signed, sent or made by the proper Person, and, with respect to all
matters pertaining to this Deed of Trust and its duties hereunder, upon advice
of counsel selected by it.
(iv) If any portion of the Trust Property also constitutes collateral
granted to the Beneficiary under any other deed of trust, mortgage, security
agreement, pledge or instrument of any type, in the event of any conflict
between the provisions hereof and the provisions of such other deed of trust,
mortgage, security agreement, pledge or instrument of any type in respect of
such collateral, the Beneficiary, in its sole discretion, shall select which
provision or provisions shall control.
(v) The Beneficiary may without notice to or consent of the Trustor
extend the time of the payment of any indebtedness secured hereby to any
successors in interest of the Trustor without discharging the Trustor from
liability thereon.
SECTION 14.4 Beneficiary May Perform; Beneficiary Appointed
----------------------------------------------
Attorney-in-Fact. If the Trustor shall fail to perform any covenants contained
- ----------------
in this Deed of Trust, subject to any applicable grace periods or contest rights
permitted pursuant to Article IX hereof or as otherwise permitted by any
----------
Collateral Document (including, without limitation, the Trustor's covenants to
(i) pay the premiums in respect of all required insurance policies hereunder,
(ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform
any obligations of the Trustor under any Trust Property) or if any warranty on
the part of the Trustor contained herein shall be breached, the Beneficiary may
(but shall not be obligated to) do the same or cause it to be done or remedy any
such breach, and may expend funds for such purpose; provided, however, that the
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Beneficiary shall in no event be bound to inquire into the validity of any tax,
Lien, imposition or other obligation which the Trustor fails to pay or perform
as and when required hereby and which the Trustor does not contest in accordance
with the provisions of Article IX hereof. Any and all amounts reasonably so
----------
expended by the Beneficiary shall be paid by the Trustor in accordance with the
provisions of Section 14.5 hereof. Neither the provisions of this Section 14.4
------------ ------------
nor any action taken by the Beneficiary pursuant to the provisions of this
Section 14.4 shall prevent any such failure to observe any covenant contained in
- ------------
this Deed of Trust nor any breach of warranty from constituting an Event of
Default. Upon the occurrence and during the continuance of an Event of Default
the Trustor hereby appoints the Beneficiary its attorney-in-fact, with full
authority in the place and stead of the Trustor and in the name of the Trustor
to take any action and to execute any instrument consistent with the terms
hereof and the other Collateral Documents which the Beneficiary may deem
necessary or advisable to accomplish the purposes hereof. The foregoing grant of
authority is a power of attorney coupled with an interest and such appointment
shall be irrevocable for the term hereof. The Trustor hereby ratifies all that
such attorney shall lawfully do or cause to be done by virtue hereof.
SECTION 14.5 Expenses The Trustor will upon demand pay to the
--------
Beneficiary the amount of any and all reasonable costs and expenses, including
the reasonable fees and expenses of its counsel and the reasonable fees and
expenses of any experts and agents which the Beneficiary may incur in connection
with (i) any action, suit or other proceeding affecting the Trust Property or
any part thereof commenced, in which action, suit or proceeding the Beneficiary
is made a party or participates or in which the right to use the Trust Property
or any part thereof is threatened, or in which it becomes necessary in the
judgment of the Beneficiary to defend or uphold the Lien hereof (including,
without limitation, any action, suit or proceeding to establish or uphold the
compliance of the Trust Property with any Requirements of Law), (ii) the
collection of the Secured Obligations, (iii) the enforcement and administration
hereof, (iv) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Trust Property, (v) the exercise or
enforcement of any of the rights of the Beneficiary or any Secured Party here-
-36-
under or (vi) the failure by the Trustor to perform or observe any of the
provisions hereof. All amounts expended by the Beneficiary and payable by the
Trustor under this Section 14.5 shall be due upon demand therefor (together with
------------
interest thereon accruing at the Default Rate during the period from and
including the date on which such funds were so expended to the date of
repayment) and shall be part of the Secured Obligations. The Trustor's
obligations under this Section 14.5 shall survive the termination hereof and the
------------
discharge of the Trustor's other obligations under this Deed of Trust.
SECTION 14.6 Indemnity.
---------
(i) The Trustor agrees to indemnify, pay and hold harmless the
Beneficiary, the Trustee and each of the other Secured Parties and the officers,
directors, employees, agents and Affiliates of the Beneficiary, the Trustee and
each of the other Secured Parties (collectively, the "Indemnitees") from and
-----------
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs (including, without limitation,
settlement costs), expenses or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto), which may be imposed on, incurred by or
asserted against that Indemnitee, in any manner relating to or arising out
hereof, the Indenture, the Notes, any other Collateral Document or any other
document evidencing the Secured Obligations (including, without limitation, any
misrepresentation by the Trustor in this Deed of Trust, the Indenture, the
Notes, any other Collateral Document or any other document evidencing the
Secured Obligations (the "Indemnified Liabilities"); provided, however, that the
----------------------- -------- -------
Trustor shall have no obligation to an Indem-nitee hereunder with respect to
Indemnified Liabilities to the extent it has been determined by a final decision
(after all appeals and the expiration of time to appeal) by a court of competent
jurisdiction that such Indemnified Liabilities arose from the gross negligence
or willful misconduct of that Indemnitee. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Trustor
shall contribute the maximum portion which it is permitted to pay and satisfy
under applicable law, to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them.
(ii) Survival. The obligations of the Trustor contained in this
--------
Section 14.6 shall survive the termination hereof and the discharge of the
- ------------
Trustor's other obligations under this Deed of Trust, the Indenture and the
other Collateral Documents.
(iii) Reimbursement. Any amount paid by any Indemnitee as to which
-------------
such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Trust Property.
SECTION 14.7 Continuing Security Interest; Assignment. This Deed of
----------------------------------------
Trust shall create a continuing Lien on and security interest in the Trust
Property and shall (i) be binding upon the Trus-tor, its respective successors
and assigns and (ii) inure, together with the rights and remedies of the
Beneficiary and the Trustee hereunder, to the benefit of the Beneficiary for the
ratable benefit of the Secured Parties and each of their respective successors,
transferees and assigns. No other Persons (including, without limitation, any
other creditor of the Trustor) shall have any interest herein or any right or
benefit with respect hereto. Without limiting the generality of the foregoing
clause (ii), any Holder of the Notes may assign or otherwise transfer any
indebtedness held by it secured by this Deed of Trust to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Holder, herein or otherwise, subject however, to the
provisions of the Indenture.
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SECTION 14.8 Termination; Release. The Trust Property shall be
--------------------
released from the Lien of this Deed of Trust in accordance with the provisions
of Article 10 of the Indenture and in accordance with this Section 14.8.
---------- ------------
(i) At any time, and from time to time, without liability therefor
and without notice to Trustor, in accordance with the provisions of the
Indenture and upon written request of the Beneficiary, and without affecting the
effect of this Deed of Trust upon the remainder of said Trust Property, the
Trustee may: reconvey to the Trustor any part of said Trust Property; consent in
writing to the making of any map or plat thereof; or join in granting any
easement thereon.
(ii) In accordance with the provisions of the Indenture and upon
written request of the Beneficiary reciting that all of the Secured Obligations
have been satisfied, the Trustee shall reconvey, without warranty or recourse
and at the expense of the Trustor, the Trust Property then held hereunder, and
the assignment set forth by Section 2.2 hereof shall be of no further force or
-----------
effect. The recitals in such reconveyance of any matters of fact shall be
conclusive proof of the truth thereof. The Grantee in such reconveyance may be
described in general terms as "the person or persons legally entitled thereto".
SECTION 14.9 Modification in Writing. No amendment, modification,
-----------------------
supplement, termination or waiver of or to any provision hereof, nor consent to
any departure by the Trustor therefrom, shall be effective unless the same shall
be done in accordance with the terms of the Indenture and unless in writing and
signed by the Beneficiary and the Trustor. Any amendment, modification or
supplement of or to any provision hereof, any waiver of any provision hereof and
any consent to any departure by the Trus-tor from the terms of any provision
hereof shall be effective only in the specific instance and for the specific
purpose for which made or given. Except where notice is specifically required by
this Deed of Trust or any other Collateral Document, no notice to or demand on
the Trustor in any case shall entitle the Trustor to any other or further notice
or demand in similar or other circumstances.
SECTION 14.10 Notices. Unless otherwise provided herein or in the
-------
Indenture, any notice or other communication herein required or permitted to be
given shall be given in the manner and become effective as set forth in the
Indenture, if to the Trustor, addressed to it at the address of the Issuer set
forth in the Indenture, and as to the Beneficiary, addressed to it at its
address set forth in the Indenture, and as to the Trustee, addressed to it at
the address set forth in the Preamble hereof, or in each case at such other
address as shall be designated by such party in a written notice to the other
party complying as to delivery with the terms of this Section 14.10.
-------------
SECTION 14.11 GOVERNING LAW; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
-------------------------------------------------------
THIS DEED OF TRUST SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR ITEM OR TYPE OF TRUST PROPERTY ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. THE TRUSTOR AGREES
THAT SERVICE OF PROCESS IN ANY PROCEEDING MAY BE EFFECTED BY MAILING A COPY
THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID, TO THE ISSUER AT ITS ADDRESS SET FORTH IN THE INDENTURE
OR AT SUCH OTHER ADDRESS OF WHICH THE BENEFICIARY SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO. IF ANY AGENT AP-
-38-
POINTED BY THE TRUSTOR REFUSES TO ACCEPT SERVICE, THE TRUSTOR HEREBY AGREES THAT
SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE BENEFICIARY TO BRING PROCEEDINGS AGAINST THE TRUSTOR IN
THE COURTS OF ANY OTHER JURISDICTION. THE TRUSTOR HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS DEED OF TRUST OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14.12 Severability of Provisions. Any provision hereof which
--------------------------
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 14.13 Limitation on Interest Payable. It is the intention of
------------------------------
the parties to conform strictly to the usury laws, whether state or Federal,
that are applicable to the transaction of which this Deed of Trust is a part.
All agreements between the Trustor and the Beneficiary, whether now existing or
hereafter arising and whether oral or written, are hereby expressly limited so
that in no contingency or event whatsoever shall the amount paid or agreed to be
paid by the Trustor for the use, forbearance or detention of the money to be
loaned or advanced under the Indenture or any related document or for the
payment or performance of any covenant or obligation contained herein or in the
Indenture or any related document exceed the maximum amount permissible under
applicable Federal or state usury laws. If under any circumstances whatsoever
fulfillment of any such provision, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by law,
then the obligation to be fulfilled shall be reduced to the limit of such
validity. If under any circumstances the Trustor shall have paid an amount
deemed interest by applicable law, which would exceed the highest lawful rate,
such amount that would be excessive interest under applicable usury laws shall
be applied to the reduction of the principal amount owing in respect of the
Secured Obligations and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to the Issuer. All sums paid or agreed
to be paid for the use, forbearance or detention of the principal under any
extension of credit by the Beneficiary shall, to the extent permitted by
applicable law, and to the extent necessary to preclude exceeding the limit of
validity prescribed by law, be amortized, prorated, allocated and spread from
the date hereof until payment in full of the Secured Obligations so that the
actual rate of interest on account of such principal amounts is uniform
throughout the term hereof.
SECTION 14.14 Business Days. In the event any time period or any date
-------------
provided in this Deed of Trust ends or falls on a day other than a Business Day,
then such time period shall be deemed to end and such date shall be deemed to
fall on the next succeeding Business Day, and performance herein may be made on
such Business Day, with the same force and effect as if made on such other day.
SECTION 14.15 Relationship. The relationship of the Beneficiary to the
------------
Trustor hereunder is strictly and solely that of lender and borrowers and
grantors and beneficiary and nothing contained in the Indenture, the Notes, this
Deed of Trust or any other document or instrument now existing and delivered in
connection therewith or otherwise in connection with the Secured Obligations is
intended to create, or shall in any event or under any circumstance be construed
as creating a partnership, joint
-39-
venture, tenancy-in-common, joint tenancy or other relationship of any nature
whatsoever between the Beneficiary and the Trustor other than as lender and
borrowers and grantors and beneficiary.
SECTION 14.16 Waiver of Stay.
--------------
(i) The Trustor agrees that in the event that the Trustor or any
property or assets of the Trustor shall hereafter become the subject of a
voluntary or involuntary proceeding under the Bankruptcy Code or the Trustor
shall otherwise be a party to any Federal or state bankruptcy, insolvency,
moratorium or similar proceeding to which the provisions relating to the
automatic stay under Section 362 of the Bankruptcy Code or any similar provision
in any such law is applicable, then, in any such case, whether or not the
Beneficiary has commenced foreclosure proceedings under this Deed of Trust, the
Beneficiary shall be entitled to relief from any such automatic stay as it
relates to the exercise of any of the rights and remedies (including, without
limitation, any foreclosure proceedings) available to the Beneficiary as
provided in this Deed of Trust, in any other Collateral Document or any other
document evidencing the Secured Obligations.
(ii) The Beneficiary shall have the right to petition or move any
court having jurisdiction over any proceeding described in Section 14.16(i)
---------------
hereof for the purposes provided therein, and the Trustor agrees (i) not to
oppose any such petition or motion and (ii) at the Trustor's sole cost and
expense, to assist and cooperate with the Beneficiary, as may be requested by
the Beneficiary from time to time, in obtaining any relief requested by the
Beneficiary, including, without limitation, by filing any such petitions,
supplemental petitions, requests for relief, documents, instruments or other
items from time to time requested by the Beneficiary or any such court.
SECTION 14.17 No Credit for Payment of Taxes or Impositions. The
---------------------------------------------
Trustor shall not be entitled to any credit against the principal, premium, if
any, or interest payable under the Indenture or the Notes, and the Trustor shall
not be entitled to any credit against any other sums which may become payable
under the terms thereof or hereof, by reason of the payment of any Charge on the
Trust Property or any part thereof.
SECTION 14.18 No Claims Against the Beneficiary. Nothing contained in
---------------------------------
this Deed of Trust shall constitute any consent or request by the Beneficiary,
express or implied, for the performance of any labor or services or the
furnishing of any materials or other property in respect of the Owned Premises
or Leased Premises or any part thereof, nor as giving the Trustor any right,
power or authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion as
would permit the making of any claim against the Beneficiary in respect thereof
or any claim that any Lien based on the performance of such labor or services or
the furnishing of any such materials or other property is prior to the Lien
hereof.
SECTION 14.19 Obligations Absolute. All obligations of the Trustor
--------------------
hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Trustor, the
Issuer or any other Guarantor;
(ii) any lack of validity or enforceability of the Indenture, the
Notes or any other agreement or instrument relating thereto;
-40-
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Indenture,
the Notes or any other agreement or instrument relating thereto;
(iv) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to any departure from
any guarantee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver of any right,
remedy, power or privilege under or in respect hereof, the Indenture, the
Notes or any agreement or instrument relating thereto except as
specifically set forth in a waiver granted pursuant to the provisions of
Section 14.9 hereof; or
------------
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Trustor.
SECTION 14.20 Last Dollars Secured. To the fullest extent permitted by
--------------------
law, this Deed of Trust shall be deemed to secure only a portion of the
Indebtedness owing or which may become owing by the Trustor. The parties agree
that, to the fullest extent permitted by law, any payments or repayments of such
Indebtedness by the Trustor shall be and be deemed to be applied first to the
portion of the Indebtedness that is not secured hereby, it being the parties'
intent that the portion of the Indebtedness last remaining unpaid shall be
secured hereby.
SECTION 14.21 Trustee Provisions.
------------------
(i) No Required Action. The Trustee shall not be required to take any
------------------
action toward the execution and enforcement of the trust hereby created or to
institute, appear in, or defend any action, suit, or other proceeding in
connection therewith where, in the Trustee's opinion, such action would be
likely to involve the Trustee in expense or liability, unless requested so to do
by a written instrument signed by Beneficiary and, if the Trustee so requests,
unless the Trustee is tendered security and indemnity satisfactory to the
Trustee against any and all cost, expense, and liability arising therefrom. The
Trustee shall not be responsible for the execution, acknowledgment, or validity
of this Deed of Trust, or for the proper authorization thereof, or for the
sufficiency of the lien and security interest purported to be created hereby,
and the Trustee makes no representation in respect thereof or in respect of the
rights, remedies, and recourses of Beneficiary.
(ii) Certain Rights. With the approval of Beneficiary, the Trustee
--------------
shall have the right to take any and all of the following actions: (i) to
select, employ, and advise with counsel (who may be, but need not be, counsel
for Beneficiary) upon any matters arising hereunder, including the preparation,
execution, and interpretation of this Deed of Trust, and shall be fully
protected in relying as to legal matters on the advice of counsel, (ii) to
execute any of the trusts and powers hereof and to perform any duty hereunder
either directly or through her agents or attorneys, (iii) to select and employ,
in and about the execution of the Trustee's duties hereunder, suitable
accountants, engineers and other experts, agents and attorneys-in-fact, either
corporate or individual, not regularly in the employ of the Trustee, and the
Trustee shall not be answerable for any act, default, negligence, or misconduct
of any such accountant, engineer or other expert, agent or attorney-in-fact, if
selected with reasonable care, or for any error of judgment or act done by the
Trustee in good faith, or be otherwise responsible or accountable under any
circumstances
-41-
whatsoever, except for the Trustee's gross negligence or bad faith, and (iv) any
and all other lawful action as Beneficiary may instruct the Trustee to take to
protect or enforce Beneficiary's rights hereunder. The Trustee shall not be
personally liable in case of entry by the Trustee, or anyone entering by virtue
of the powers herein granted to the Trustee, upon the Trust Property for debts
contracted for or liability or damages incurred in the management or operation
of the Trust Property. The 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 the Trustee hereunder, believed by the Trustee in good
faith to be genuine. The Trustee shall be entitled to reimbursement for
reasonable expenses incurred by the Trustee in the performance of Trustee's
duties hereunder and to reasonable compensation for such of the Trustee's
services hereunder as shall be rendered. The Trustor will, from time to time,
pay the reasonable compensation due to the Trustee hereunder and reimburse the
Trustee for, and save the Trustee harmless against, any and all liability and
reasonable expenses which may be incurred by Trustee in the performance of
Trustee's duties hereunder.
(iii) Substitution of Trustee. Subject to the restrictions
-----------------------
regarding the substitution of trustees in the Indenture, if, for any reason,
with or without cause, the Beneficiary shall elect to substitute for the Trustee
herein named (or for any successor to said Trustee), the Beneficiary shall have
the right to appoint successor Trustee(s) by duly acknowledged written
instruments, and each new Trustee immediately upon recordation of the instrument
so appointing him shall become successor in title to the Owned Premises and
Leased Premises for the uses and purposes of this Deed of Trust, with all the
powers, duties and obligations conferred on the Trustee in the same manner and
to the same effect as though he were named herein as the Trustee. If there be
more than one trustee, either may act alone and execute the trusts upon the
request of the Beneficiary, and all his acts thereunder shall be deemed to be
the acts of all trustees, and the recital in any conveyance executed by such
sole trustee of such request shall be conclusive evidence thereof, and of the
authority of such sole trustee to act.
(iv) Successor Trustees. The Trustee accepts this trust when this
------------------
Deed of Trust, duly executed and acknowledged, is made a public record as
provided by law. The Trustee may resign by the giving of notice of such
resignation in writing or verbally to Beneficiary. If the Trustee shall die,
resign, or become disqualified from acting in the execution of this trust, or
if, for any reason, Beneficiary shall prefer to appoint a substitute trustee or
multiple substitute trustees, or successive substitute trustees or successive
multiple substitute trustees, to act instead of the aforenamed Trustee,
Beneficiary shall have full power to appoint a substitute trustee (or, if
preferred, multiple substitute trustees) in succession who shall succeed (and if
multiple substitute trustees are appointed, each of such multiple substitute
trustees shall succeed) to all the estates, rights, powers, and duties of the
aforenamed Trustee. Such appointment may be executed by any authorized agent of
Beneficiary, and if such Beneficiary be a corporation and such appointment be
executed in its behalf by any officer of such corporation, 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 the corporation. The Trustor hereby ratifies and confirms
any and all acts which the aforenamed Trustee, or her successor or successors in
this trust, shall do lawfully by virtue hereof. If multiple substitute Trustees
are appointed, each of such multiple substitute Trustees shall be empowered and
authorized to act alone without the necessity of the joinder of the other
multiple substitute trustees, whenever any action or undertaking of such
substitute trustees is requested or required under or pursuant to this Deed of
Trust or applicable law.
(v) Perfection of Appointment. Should any deed, conveyance, or
-------------------------
instrument of any nature be required from the Trustor by any Trustee or
substitute Trustee to more fully and certainly vest in and confirm to the
Trustee or substitute Trustee such estates, rights, powers, and duties, then,
upon request
-42-
by the Trustee or substitute Trustee, any and all such deeds, conveyances and
instruments shall be made, executed, acknowledged, and delivered and shall be
caused to be recorded and/or filed by the Trustor.
(vi) Succession Instruments. Any substitute Trustee appointed
----------------------
pursuant to any of the provisions hereof shall, without any further act, deed,
or conveyance, become vested with all the estates, properties, rights, powers,
and trusts of its or his predecessor in the rights hereunder with like effect as
if originally named as Trustee herein; but nevertheless, upon the written
request of Beneficiary or of the substitute Trustee, the Trustee ceasing to act
shall execute and deliver any instrument transferring to such substitute
Trustee, upon the trusts herein expressed, all the estates, properties, rights,
powers, and trusts of the Trustee so ceasing to act, and shall duly assign,
transfer and deliver any of the property and moneys held by such Trustee to the
substitute Trustee so appointed in the Trustee's place.
(vii) No Representation by Trustee or Beneficiary. By accepting or
-------------------------------------------
approving anything required to be observed, performed, or fulfilled or to be
given to the Trustee or Beneficiary pursuant to the Collateral Documents,
including without limitation, any officer's certificate, balance sheet,
statement of profit and loss or other financial statement, survey, appraisal, or
insurance policy, neither the Trustee nor the Beneficiary shall be deemed to
have warranted, consented to, or affirmed the sufficiency, legality,
effectiveness, or legal effect of the same, or of any term, provision, or
condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or affirmation with respect thereto by the Trustee or
the Beneficiary.
SECTION 14.22 Trust Lease.
-----------
(i) The Trustor shall punctually and properly perform,
observe and otherwise comply with each and every covenant, agreement,
requirement and condition set forth in the Trust Lease and do or cause to be
done all things necessary or appropriate to keep the Trust Lease in full force
and effect and to preserve and keep unimpaired the rights of the Trustor
thereunder. Upon request of the Beneficiary, the Trustor shall, subject to the
terms of the Trust Lease, request from the Lessor an estoppel certificate,
addressed to the Beneficiary, stating that there is no default under the Trust
Lease or any state of facts which, with the passage of time or notice or both,
would constitute a default thereunder, or if there be any default under the
Trust Lease, giving the details thereof.
(ii) In the event the Trustor acquires the fee simple
title or any other estate or interest in the property subject to any Trust
Lease, such acquisition will not merge with the leasehold estate created by such
Trust Lease, but such other estate or interest will remain discrete and
immediately become subject to the Lien of this Deed of Trust, and the Trustor
shall execute, acknowledge and deliver any instruments requested by the
Beneficiary to confirm the coverage of the Lien evidenced hereby upon such other
estate or interest. The Trustor shall pay any and all conveyance or mortgage
taxes and filing or similar fees in connection with the execution, delivery,
filing or recording of any such instrument.
(iii) The Trustor shall promptly notify the Beneficiary in
wiring of the occurrence of any default (or any event which, with the lapse of
time or notice or both, would constitute a default) on the part of or caused by
any party to the Trust Lease. If for any reason the Trustor cannot timely make
any payment under any Trust Lease or perform or comply with any of its
obligations under any Trust Lease, the Trustor shall notify the Beneficiary in
sufficient time to enable the Beneficiary (but the Beneficiary shall not be
obligated) timely to make such payments and/or to perform or comply with such
other obligations. On receipt by the Beneficiary from the Trustor pursuant to
this Section 14.21(iii), or from the applicable
------------------
-43-
Lessor under the Trust Lease, of any such notice of default by, or inability to
make any payment by, the Trustor thereunder, the Beneficiary may rely thereon
and, after reasonable notice to the Trustor, take such action as the Beneficiary
deems necessary or desirable to cure such default, even though the existence of
such default or the nature thereof is denied by the Trustor or by any other
Person.
(iv) Except as otherwise permitted under Section 10.6 of
the Indenture, the Trustor shall not, without the prior written consent of the
Beneficiary, amend, modify, surrender, impair, forfeit, cancel or terminate, or
permit the amendment, modification, surrender, impairment, forfeiture,
cancellation or termination of, any Trust Lease in whole or in part, whether or
not a default shall have occurred and shall be continuing under either thereof.
Any such termination, cancellation, modification, change, supplement,
alteration, amendment or extension without the prior written consent
contemplated by this subsection 14.21(iv) shall be void and of no force or
effect.
(v) The leasehold estate of the Trustor created by the
Trust Lease and the estate of the Lessor, under the Trust Lease shall each at
all times remain separate and apart and retain their separate identities, and no
merger of the leasehold or easement estate of the Trustor with the estate of the
Lessor, will result with respect to the Beneficiary or with respect to any
purchaser acquiring the Trust Property at any sale on foreclosure of the Lien of
this Deed of Trust without the written consent of the Beneficiary.
(vi) The Trustor covenants and agrees that if it shall be
the subject of a proceeding under the Federal Bankruptcy Code, it shall not
elect to treat any Trust Lease as terminated (pursuant to Section 365 of the
Federal Bankruptcy Code or any similar statute or law) without the prior written
consent of the Beneficiary. The Trustor hereby irrevocably assigns to the
Beneficiary the right to exercise such election.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Trustor has caused this Deed of Trust
to be duly executed and delivered under seal the day and year first above
written.
GOLD DUST WEST CASINO, INC.,
a Nevada corporation
/s/ Stephen R. Roark
By: ____________________________________
Stephen R. Roark,
Vice President
Colorado
STATE OF _______________________________________)
) ss
Denver
CITY AND COUNTY OF _____________________________)
19
This instrument was acknowledged before me on February ____, 2002, by
Stephen R. Roark, as Vice President of GOLD DUST WEST CASINO, INC.
/s/ Vicki L. Jaynes
____________________________
Notary Public
Schedule A
----------
[Legal Description]
[to come from title policy]
Schedule B
----------
Prior Liens
-----------
1. Each of the liens and other encumbrances excepted as being prior to the
Lien hereof as set forth in Schedule B to the marked title insurance
commitment issued by First American Title Company of Nevada, dated as of
the date hereof and delivered to the Beneficiary on the date hereof,
bearing First American Title Company of Nevada reference number
2001-58642-RB relating to the real property described in Schedule A
-------------
attached hereto.
2. Zoning and building ordinances and regulations, to the extent they
constitute Permitted Liens of the type described in clause (4) of the
definition thereof.
Schedule C
----------
Leases Affecting the Trust Property
Operating Lease dated July 27, 1998 between GOLD DUST MOTEL, INC., a
Nevada corporation and John E. Cavanaugh dba Gold Dust West as landlord
("Original Landlord"), and SIERRA DEVELOPMENT COMPANY dba CLUB CAL-NEVA, a
Nevada corporation, as tenant ("Tenant"), as assigned on January 4, 2001 by
Original Landlord to GOLD DUST WEST CASINO, INC., a Nevada corporation, and as
amended through the date hereof, pursuant to which Tenant leases a portion of
the property known as Gold Dust West Casino, located at 444 Vine Street (701
West 4/th/ Street), Reno, NV 89505, as more particularly described in Schedule A
----------
attached to this Deed of Trust.
Exhibit 1
---------
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made and entered into as of the ____ day of _______, ____ by and
between ________________________________, as trustee, having an office at
_________________ (in such capacity, "Trustee"), and _____________________,
having an office at __________________________ ("Tenant").
R E C I T A L S:
- - - - - - - -
A. Tenant is the tenant under a certain lease dated _____________,
____ between ________________________________, as landlord ("Landlord"), and
Tenant, as tenant (as amended through the date hereof, the "Lease"), pursuant to
which Tenant leased a portion (the "Leased Premises") of the property known as
_____________________________, located at _____________________________, as more
particularly described in Schedule A attached hereto (the "Property").
----------
B. Landlord has or will grant a deed of trust lien on and security
interest in the Property to Trustee (for its benefit and for the benefit of the
holders of certain senior secured notes and notes issued in exchange therefor
pursuant to that certain indenture dated as of [________ ___, 2002]) pursuant to
one or more mortgages, deeds of trust, deeds to secure debt or similar security
instruments (collectively, the "Security Instruments").
C. Tenant has agreed to subordinate the Lease to the Security
Instruments and to the lien thereof and Trustee has agreed not to disturb
Tenant's possessory rights in the Leased Premises under the Lease on the terms
and conditions hereinafter set forth.
A G R E E M E N T:
- - - - - - - - -
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Subordination. Notwithstanding anything to the contrary set forth
-------------
in the Lease, the Lease and the leasehold estate created thereby and all of
Tenant's rights thereunder are and shall at all times be subject and subordinate
in all respects to the Security Instruments and the lien thereof, and to all
rights of Trustee thereunder, and to any and all advances to be made thereunder,
and to all renewals, modifications, consolidations, replacements and extensions
thereof.
2. Nondisturbance. So long as Tenant complies with the provisions of
--------------
this Agreement, pays all rents and other charges as specified in the Lease and
is not otherwise in default (beyond applicable notice and cure periods) of any
of its obligations and covenants pursuant to the Lease, Trustee agrees for
itself and its successors in interest and for any other person acquiring title
to the Property through a foreclosure (an "Acquiring Party"), that Tenant's
possession of the Leased Premises as described in the Lease will not be
disturbed during the term of the Lease by reason of a foreclosure. For purposes
of this Agreement, a "foreclosure" shall include (but not be limited to) a
sheriff's or trustee's sale under the power of sale con-
-2-
tained in the Security Instruments, the termination of any superior lease of the
Property and any other transfer of the Landlord's interest in the Property under
peril of foreclosure, including, without limitation to the generality of the
foregoing, an assignment or sale in lieu of foreclosure.
3. Attornment. Tenant agrees to attorn to, accept and recognize any
----------
Acquiring Party as the landlord under the Lease pursuant to the provisions
expressly set forth therein for the then remaining balance of the term of the
Lease, and any extensions thereof as made pursuant to the Lease. The foregoing
provision shall be self-operative and shall not require the execution of any
further instrument or agreement by Tenant as a condition to its effectiveness.
4. No Liability. Notwithstanding anything to the contrary contained
------------
herein or in the Lease, it is specifically understood and agreed that neither
the Trustee, any receiver nor any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default of any prior
landlord (including Landlord); or
(b) liable for any failure of any prior landlord (including Landlord)
to construct any improvements or bound by any covenant to construct any
improvement either at the commencement of the term of the Lease or upon any
renewal or extension thereof or upon the addition of additional space
pursuant to any expansion right contained in the Lease; or
(c) subject to any offsets, credits, claims or defenses which Tenant
might have against any prior landlord (including Landlord); or
(d) bound by any rent or additional rent which is payable on a monthly
basis and which Tenant might have paid for more than one (1) month in
advance to any prior landlord (including Landlord) or by any security
deposit or other prepaid charge which Tenant might have paid in advance to
any prior landlord (including Landlord); or
(e) liable to Tenant hereunder or under the terms of the Lease beyond
its interest in the Property; or
(f) bound by any assignment, subletting, renewal, extension or any
other agreement or modification of the Lease made without the written
consent of Trustee; or
(g) bound by any consensual or negotiated surrender, cancellation or
termination of the Lease, in whole or in part, agreed upon between Landlord
and Tenant unless effected unilaterally by Tenant pursuant to the express
terms of the Lease.
Notwithstanding the foregoing, Tenant reserves its right to any and
all claims or causes of action (i) against such prior landlord for prior losses
or damages and (ii) against the successor landlord for all losses or damages
arising from and after the date that such successor landlord takes title to the
Property.
5. Certain Acknowledgments and Agreements by Tenant. (a) Tenant has
------------------------------------------------
notice that the Lease and the rents and all other sums due thereunder have been
assigned to Trustee as security for the notes secured by the Security
Instruments. In the event Trustee notifies Tenant of the occurrence of a de-
-3-
fault under the Security Instruments and demands that Tenant pay its rents and
all other sums due or to become due under the Lease directly to Trustee, Tenant
shall honor such demand and pay its rent and all other sums due under the Lease
directly to Trustee or as otherwise authorized in writing by Trustee. Landlord
irrevocably authorizes Tenant to make the foregoing payments to Trustee upon
such notice and demand.
(b) Tenant shall send a copy of any and all notices or statements
under the Lease to Trustee at the same time such notices or statements are sent
to Landlord.
(c) This Agreement satisfies any and all conditions or requirements
in the Lease relating to the granting of a non-disturbance agreement.
6. Trustee to Receive Default Notices. Tenant shall notify Trustee
----------------------------------
of any default by Landlord under the Lease which would entitle Tenant to cancel
the Lease, and agrees that, notwithstanding any provisions of the Lease to the
contrary, no notice of cancellation thereof shall be effective unless Trustee
shall have received notice of default giving rise to such cancellation and shall
have failed within sixty (60) days after receipt of such notice to cure such
default or, if such default cannot be cured within sixty (60) days, shall have
failed within sixty (60) days after receipt of such notice to commence and
thereafter diligently pursue any action necessary to cure such default.
7. Estoppel. Tenant hereby certifies and represents to Trustee that
--------
as of the date of this Agreement:
(a) the Lease is in full force and effect;
(b) all requirements for the commencement and validity of the Lease
have been satisfied and there are no unfulfilled conditions to Tenant's
obligations under the Lease;
(c) Tenant is not in default under the Lease and has not received any
uncured notice of any default by Tenant under the Lease; to the best of
Tenant's knowledge, Landlord is not in default under the Lease; no act,
event or condition has occurred which with notice or the lapse of time, or
both, would constitute a default by Tenant or Landlord under the Lease; no
claim by Tenant of any nature exists against Landlord under the Lease; and
all obligations of Landlord have been fully performed;
(d) there are no defenses, counterclaims or setoffs against rents or
charges due or which may become due under the Lease;
(e) none of the rent which Tenant is required to pay under the Lease
has been prepaid, or will in the future be prepaid, more than one (1) month
in advance;
(f) Tenant has no right or option contained in the Lease or in any
other document to purchase all or any portion of the Leased Premises;
(g) the Lease has not been modified or amended and constitutes the
entire agreement between Landlord and Tenant relating to the Leased
Premises;
-4-
(h) Tenant has not assigned, mortgaged, sublet, encumbered, conveyed
or otherwise transferred any or all of its interest under the Lease; and
(i) Tenant has full authority to enter into this Agreement, which has
been duly authorized by all necessary action.
8. Notices. All notices or other written communications hereunder
-------
shall be deemed to have been properly given (i) upon delivery, if delivered in
person with receipt acknowledged by the recipient thereof, (ii) one (1) Business
Day (hereinafter defined) after having been deposited for overnight delivery
with any reputable overnight courier service, or (iii) three (3) Business Days
after having been deposited in any post office or mail depository regularly
maintained by the United States Postal Service and sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
receiving party at its address set forth above or addressed as such party may
from time to time designate by written notice to the other parties. For purposes
of this Section 8, the term "Business Day" shall mean any day other than
Saturday, Sunday or any other day on which banks are required or authorized to
close in New York, New York. Either party by notice to the other may designate
additional or different addresses for subsequent notices or communications.
9. Successors. The obligations and rights of the parties pursuant to
----------
this Agreement shall bind and inure to the benefit of the successors, assigns,
heirs and legal representatives of the respective parties; provided, however,
-------- -------
that in the event of the assignment or transfer of the interest of Trustee, all
obligations and liabilities of Trustee under this Agreement shall terminate, and
thereupon all such obligations and liabilities shall be the responsibility of
the party to whom Trustee's interest is assigned or transferred; and provided,
--------
further, that the interest of Tenant under this Agreement may not be assigned or
- -------
transferred without the prior written consent of Trustee. In addition, Tenant
acknowledges that all references herein to Landlord shall mean the owner of the
landlord's interest in the Lease, even if said owner shall be different from the
Landlord named in the Recitals.
10. Duplicate Original; Counterparts. This Agreement may be executed
--------------------------------
in any number of duplicate originals and each duplicate original shall be deemed
to be an original. This Agreement may be executed in several counterparts, each
of which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement.
11. Limitation of Trustee's Liability. (a) Trustee shall have no
---------------------------------
obligations nor incur any liability with respect to any warranties of any nature
whatsoever, whether pursuant to the Lease or otherwise, including, without
limitation, any warranties respecting use, compliance with zoning, Landlord's
title, Landlord's authority, habitability, fitness for purpose or possession.
(b) In the event that Trustee shall acquire title to the Leased
Premises or the Property, Trustee shall have no obligation, nor incur any
liability, beyond Trustee's then equity interest, if any, in the Leased
Premises, and Tenant shall look exclusively to such equity interest of Trustee,
if any, in the Leased Premises for the payment and discharge of any obligations
imposed upon Trustee hereunder or under the Lease, and Trustee is hereby
released and relieved of any other obligations hereunder and under the Lease.
12. Modification in Writing. This Agreement may not be modified
-----------------------
except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
-5-
13. Lien of Security Instruments. Nothing contained in this Agreement
----------------------------
shall in any way impair or affect the lien created by the Security Instruments
or the provisions thereof.
14. Compliance with Lease. Tenant agrees that in the event there is
---------------------
any inconsistency between the terms and provisions hereof and the terms and
provisions of the Lease, the terms and provisions hereof shall be controlling.
15. Governing Law; Severability. This Agreement shall be governed by
--------------------------
the laws of the State of [ ]. If any term of this Agreement or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
such terms to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
16. Further Actions. Tenant agrees at its own expense to execute and
---------------
deliver, at any time and from time to time upon the request of Trustee or any
Acquiring Party, such documents and instruments (in recordable form, if
requested) as may be necessary or appropriate, in the opinion of Trustee or any
Acquiring Party, to fully implement or to further evidence the understandings
and agreements contained in this Agreement. Moreover, Tenant hereby irrevocably
appoints and constitutes Trustee or any Acquiring Party as its true and lawful
attorney-in-fact to execute and deliver any such documents or instruments which
may be necessary or appropriate, in the opinion of Trustee or any Acquiring
Party, to implement or further evidence such understandings and agreements and
which Tenant, after thirty (30) days' notice from Trustee or any Acquiring
Party, has failed to execute and deliver.
S-1
IN WITNESS WHEREOF, Trustee and Tenant have duly executed this
Agreement as of the date first above written.
___________________________________________,
as Trustee
By: ________________________________________
Name:
Title:
___________________________________________,
as Tenant
By: ________________________________________
Name:
Title:
The undersigned, as the Landlord named in the Recitals, having duly
executed this Agreement as of the date first written above, and as grantor,
pledgor, assignor or debtor under the Security Instruments, hereby accepts and
agrees for itself and its successors and assigns, (i) to be bound by the
provisions of Section 5 hereof, (ii) that nothing contained in the foregoing
Agreement (x) shall in any way be deemed to constitute a waiver by Trustee of
any of its rights or remedies under the Security Instruments or (y) shall in any
way be deemed to release Landlord from its obligations to comply with the terms,
provisions, conditions, covenants and agreements set forth in the Security
Instruments and (iii) that the provisions of the Security Instruments remain in
full force and effect and must be complied with by Landlord.
________________________________, a
________________________________
By: ______________________________________
Name:
Title:
ACKNOWLEDGMENT
STATE OF _______________________________)
) ss
COUNTY OF ______________________________)
This instrument was acknowledged before me on _______________________,
by ___________________, as ______________________________ of
_____________________________.
____________________________
Notary Public
SCHEDULE A to EXHIBIT 1
-----------------------
Description of Real Property
----------------------------
[Leave a space 3 inches square in lower right corner of last page of exhibits
for Recorder's use]