Exhibit 10.7
APNs: 162-03-301-004 through 010, inclusive,
162-03-301-013, 162-03-301-015, 162-03-301-016,
162-03-401-001, 162-03-401-002,
162-04-710-041 through 055, inclusive,
162-04-710-059, 162-04-813-060, 162-04-813-061,
162-04-813-084 through 098, inclusive
Recording requested by and recorded counterparts should be returned to:
Louis G. Alonso, Esq.
Latham & Watkins LLP
12636 High Bluff Drive, Suite 300
San Diego, California 92130
Mail Property Tax Statements to:
Ms. Robin Wallis
Stratosphere Corporation
2000 Las Vegas Boulevard South
Las Vegas, Nevada 89104
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
SECURITY AGREEMENT AND FIXTURE FILING
MADE BY
STRATOSPHERE CORPORATION,
AS TRUSTOR,
TO
LAWYERS TITLE OF NEVADA,
AS TRUSTEE,
FOR THE BENEFIT OF
WILMINGTON TRUST COMPANY,
IN ITS CAPACITY AS INDENTURE TRUSTEE, FOR THE BENEFIT OF THE SECURED PARTIES,
AS BENEFICIARY
********************************************************************************
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF CLARK COUNTY,
NEVADA UNDER THE NAMES OF STRATOSPHERE CORPORATION AS "DEBTOR" AND WILMINGTON
TRUST COMPANY AS "SECURED PARTY." TRUSTOR'S ORGANIZATIONAL NUMBER IS DELAWARE
FILE NUMBER: 2322612.
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS ...........................................................................................2
1.1 Defined Terms ..................................................................................2
1.2 Terms Defined Elsewhere ........................................................................9
ARTICLE II. GRANT ................................................................................................9
2.1 Grant ..........................................................................................9
2.2 Trustor's Right to Encumber the Trust Estate ..................................................12
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUSTOR................................................12
3.1 Performance of Indenture Documents ............................................................13
3.2 General Representations, Covenants and Warranties .............................................13
3.3 Compliance with Legal Requirements ............................................................13
3.4 Taxes .........................................................................................13
3.5 Insurance .....................................................................................14
3.6 Condemnation ..................................................................................14
3.7 Care of Trust Estate ..........................................................................15
3.8 Leases ........................................................................................15
3.9 Further Encumbrance ...........................................................................15
3.10 Further Assurances ............................................................................16
3.11 Security Agreement, Fixture Filing and Financing Statements....................................16
3.12 Assignment of Leases and Rents ................................................................19
3.13 Expenses and Indemnification ..................................................................19
3.14 Beneficiary's Cure of Trustor's Default .......................................................20
3.15 Use of Trust Estate ...........................................................................20
3.16 Compliance with Permitted Lien Agreements .....................................................20
3.17 Defense of Actions ............................................................................20
3.18 Affiliates ....................................................................................21
3.19 Title Insurance ...............................................................................21
ARTICLE IV. FINANCING AGREEMENT PROVISIONS ......................................................................21
4.1 Interaction with Financing Agreements..........................................................21
4.2 Other Collateral ..............................................................................21
ARTICLE V. DEFAULTS .............................................................................................22
5.1 Event of Default ..............................................................................22
ARTICLE VI. REMEDIES ............................................................................................22
6.1 Acceleration of Maturity ......................................................................22
6.2 Protective Advances ...........................................................................22
6.3 Institution of Equity Proceedings .............................................................22
6.4 Beneficiary's Power of Enforcement ............................................................23
6.5 Beneficiary's Right to Enter and Take Possession, Operate and Apply Income.....................24
6.6 Leases ........................................................................................25
6.7 Purchase by Beneficiary and Secured Parties....................................................25
i
TABLE OF CONTENTS
Page
----
6.8 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws ........................25
6.9 Receiver ......................................................................................26
6.10 Suits to Protect the Trust Estate .............................................................26
6.11 Proofs of Claim ...............................................................................26
6.12 Trustor to Pay the Obligations on Any Default in Payment; Application of
Monies by Beneficiary .........................................................................27
6.13 Delay or Omission; No Waiver ..................................................................27
6.14 No Waiver of One Default to Affect Another ....................................................27
6.15 Discontinuance of Proceedings; Position of Parties Restored ...................................28
6.16 Remedies Cumulative ...........................................................................28
6.17 Interest After Event of Default ...............................................................28
6.18 Foreclosure; Expenses of Litigation ...........................................................29
6.19 Deficiency Judgments ..........................................................................29
6.20 Waiver of Jury Trial ..........................................................................29
6.21 Exculpation of Beneficiary ....................................................................30
ARTICLE VII. RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS RELATING TO TRUSTEE .......................30
7.1 Exercise of Remedies by Trustee ...............................................................30
7.2 Rights and Privileges of Trustee ..............................................................30
7.3 Resignation or Replacement of Trustee .........................................................31
7.4 Authority of Beneficiary ......................................................................31
7.5 Effect of Appointment of Successor Trustee ....................................................31
7.6 Confirmation of Transfer and Succession .......................................................31
7.7 Exculpation ...................................................................................31
7.8 Multiple Trustees .............................................................................32
ARTICLE VIII. MISCELLANEOUS PROVISIONS ..........................................................................32
8.1 Heirs, Successors and Assigns Included in Parties .............................................32
8.2 Addresses for Notices, Etc ....................................................................32
8.3 Change of Notice Address ......................................................................33
8.4 Headings ......................................................................................33
8.5 Invalid Provisions to Affect No Others ........................................................33
8.6 Changes and Priority Over Intervening Liens ...................................................33
8.7 Estoppel Certificates .........................................................................33
8.8 Waiver of Setoff and Counterclaim .............................................................34
8.9 Governing Law .................................................................................34
8.10 Required Notices ..............................................................................34
8.11 Reconveyance ..................................................................................35
8.12 Attorneys' Fees ...............................................................................35
8.13 Late Charges ..................................................................................35
8.14 Cost of Accounting ............................................................................35
8.15 Right of Entry ................................................................................35
8.16 Corrections ...................................................................................35
8.17 Statute of Limitations.........................................................................35
ii
TABLE OF CONTENTS
Page
----
8.18 Subrogation ...................................................................................35
8.19 Context .......................................................................................36
8.20 Time ..........................................................................................36
8.21 Interpretation ................................................................................36
8.22 Effect of NRS 107.030 .........................................................................36
8.23 Amendments ....................................................................................36
8.24 Deed of Trust .................................................................................36
8.25 Bank Deed of Trust ............................................................................36
ARTICLE IX. POWER OF ATTORNEY ...................................................................................37
9.1 Grant of Power ................................................................................37
ARTICLE X. GUARANTOR PROVISIONS .................................................................................37
10.1 Absolute and Unconditional Obligations ........................................................37
10.2 Waiver ........................................................................................38
10.3 Net Worth Limitation ..........................................................................39
SCHEDULE A DESCRIPTION OF THE LAND
iii
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT
AND FIXTURE FILING (as it may be amended, supplemented; increased or otherwise
modified from time to time, the "DEED OF TRUST") is made and effective as of May
26, 2004 by Stratosphere Corporation, a Delaware corporation (together with all
successors and assigns of the Trust Estate, "TRUSTOR"), whose address is 2000
Las Vegas Boulevard South, Las Vegas, Nevada 89104, to Lawyers Title of Nevada,
whose address is 1210 S. Valley View Boulevard, Las Vegas, Nevada 89102, as
trustee ("TRUSTEE"), for the benefit of Wilmington Trust Company, a Delaware
banking company ("BENEFICIARY"), whose address is Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890, in its capacity as trustee
(together with any substitutes, successors, assignees or additional trustees
under the Indenture (as defined below), the "INDENTURE TRUSTEE") under the
Indenture, for the benefit of the Secured Parties (as defined below).
THIS INSTRUMENT SECURES FUTURE ADVANCES. THE MAXIMUM AMOUNT OF
PRINCIPAL TO BE SECURED HEREBY IS $600,000,000. THIS INSTRUMENT IS TO BE
GOVERNED BY THE PROVISIONS OF NRS 106.300 THROUGH NRS 106.400 INCLUSIVE.
INTEREST ON CERTAIN OF THE OBLIGATIONS SECURED HEREBY ACCRUES AT A RATE
THAT MAY FLUCTUATE FROM TIME TO TIME.
RECITALS:
WHEREAS, pursuant to that certain Indenture, dated as of January 29,
2004 (as the same may be amended, supplemented or otherwise modified from time
to time, the "INDENTURE"), by and among American Casino & Entertainment
Properties LLC, a Delaware limited liability company ("ACEP"), American Casino &
Entertainment Properties Finance Corp., a Delaware corporation (together with
ACEP, the "ISSUERS"), Trustor, certain Affiliates (as defined below) of Trustor
party thereto and the Indenture Trustee, for the benefit of the registered
holders (the "HOLDERS") of the Notes (as defined below), the Issuers issued
$215,000,000 aggregate principal amount of their 7.85% Senior Secured Notes due
2012 (as they may be amended, supplemented, replaced or exchanged from time to
time, and including any Additional Notes (as defined in the Indenture) issued
from time to time under the Indenture, the "NOTES");
WHEREAS, Trustor has guaranteed all obligations of the Issuers (the
"NOTE GUARANTEE") under the Indenture Documents (as defined below);
WHEREAS, the net proceeds of the Notes together with certain other
funds (and with any interest accrued thereon, the "NET PROCEEDS") have been
placed in an escrow account (the "NOTE PROCEEDS ACCOUNT") pursuant to that
certain Escrow and Security Agreement, dated as of January 29, 2004 (the "ESCROW
AND SECURITY AGREEMENT"), by and among the Issuers, American Real Estate
Holdings Limited Partnership, the Indenture Trustee, and Fleet National Bank,
as, among other capacities, escrow agent;
1
WHEREAS, all obligations of Trustor to the Secured Parties under the
Note Guarantee are to be secured, in part, by the Trust Estate pursuant to this
Deed of Trust in accordance with the terms hereof;
WHEREAS, it is a condition precedent to the release of the Net Proceeds
from the Note Proceeds Account under the Escrow and Security Agreement and a
covenant under the Indenture that Trustor shall have executed and delivered this
Deed of Trust to Beneficiary;
WHEREAS, ACEP is the parent of Trustor; and
WHEREAS, the Issuers and Trustor are engaged in related businesses, and
Trustor will derive substantial direct and indirect benefit from the release of
the Net Proceeds from the Note Proceeds Account.
NOW, THEREFORE, in consideration of Ten Dollars, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and for the purpose of securing in favor of Beneficiary, for the
benefit of the Secured Parties, the Obligations, Trustor, in consideration of
the premises, and for the purposes aforesaid hereby agrees as follows:
ARTICLE I.
DEFINITIONS
1.1 DEFINED TERMS. As used in this Deed of Trust, the following terms
have the meanings hereinafter set forth.
"ACCOUNTS RECEIVABLE" has the meaning set forth in Section 9-102 (NRS
104.9102) of the UCC for the term "account."
"ADMINISTRATIVE AGENT" has the meaning given to in Section 8.25 hereof.
"ACEP" has the meaning given to it in the Recitals hereof.
"APPURTENANT RIGHTS" means all and singular tenements, hereditaments,
rights, reversions, remainders, development rights, privileges, benefits,
easements (in gross or appurtenant), rights-of-way, licenses, gores or strips of
land, streets, ways, alleys, passages, sewer rights, water courses, water rights
and powers, and all appurtenances whatsoever and claims or demands of Trustor at
law or in equity in any way belonging, benefiting, relating or appertaining to
the Land, Trustor, the airspace over the Land, the Improvements or any of the
Trust Estate encumbered by this Deed of Trust, or that hereinafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Trustor.
"BANKRUPTCY" means, with respect to any Person, that (a) a court having
jurisdiction in the Trust Estate shall have entered a decree or order for relief
in respect of such Person in an involuntary case under the Bankruptcy Law, which
decree or order has not been stayed; or any other similar relief shall have been
granted under any applicable federal or state law; or (b) an
2
involuntary case shall be commenced against such Person, under the Bankruptcy
Law, or a decree or order of a court having jurisdiction in the Trust Estate for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over such Person, or over all or a
substantial part of its property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim receiver, trustee or other
custodian of such Person, for all or a substantial part of its property; or a
warrant of attachment, execution or similar process shall have been issued
against any substantial part of the property of such Person, and any such event
described in this clause (b) shall continue for 60 days unless dismissed, bonded
or discharged; or (c) such Person shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy Law or
shall consent to the entry of an order for relief in an involuntary case, or to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
such Person shall make any assignment for the benefit of creditors, or shall be
Insolvent; or (d) such Person shall, or the board of directors (or similar body)
of such Person (or any committee thereof) shall, adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (c) above.
"BANKRUPTCY LAW" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute thereto
or any similar federal or state law for the relief of debtors.
"BANK DEED OF TRUST" has the meaning given to it in Section 8.25 hereof
"BENEFICIARY" has the meaning given to it in the Preamble hereof.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in the State of Nevada or the City of New York are
not required to be open.
"DEED OF TRUST" has the meaning given to it in the Preamble hereof.
"ESCROW AND SECURITY AGREEMENT" has the meaning given to it in the
Recitals hereof.
"ESTOPPEL CERTIFICATE" has the meaning given to it in Section 8.7
hereof.
"EVENT OF DEFAULT" has the meaning given to it in Section 5.1 hereof.
"FF&E" means all furniture, fixtures, equipment, appurtenances and
personal property now or in the future contained in, used in connection with,
attached to, or otherwise useful or convenient to the use, operation, or
occupancy of, or placed on, but unattached to, any part of the Site or
Improvements whether or not the same constitutes real property or fixtures in
the State of Nevada, including all removable window and floor coverings, all
furniture and furnishings, heating, lighting, plumbing, ventilating, air
conditioning, refrigerating, incinerating and elevator and escalator plants,
cooking facilities, vacuum cleaning systems, public address and communication
systems, sprinkler systems and other fire prevention and extinguishing apparatus
and materials, motors, machinery, pipes, appliances, equipment, fittings,
fixtures, and building
3
materials, all gaming and financial equipment, computer equipment, calculators,
adding machines, gaming tables, video game and slot machines, and any other
electronic equipment of every nature used or located on any part of the Site or
Improvements, together with all Venetian blinds, shades, draperies, drapery and
curtain rods, brackets, bulbs, cleaning apparatus, mirrors, lamps, ornaments,
cooling apparatus and equipment, ranges and ovens, garbage disposals,
dishwashers, mantels, and any and all such property that is at any time
installed in, affixed to or placed upon the Site or Improvements.
"GAMING LAWS" means the gaming laws, rules, regulations or ordinances
and the laws, rules, regulations or ordinances governing the sale and
distribution of alcoholic beverages of any jurisdiction or jurisdictions to
which either of the Issuers, Trustor or any other Restricted Subsidiary is, or
may be at any time after the date of the Indenture, subject, including, without
limitation, the Nevada Gaming Control Act, codified as Chapter 463 of the Nevada
Revised Statutes and the regulations of the Nevada Gaming Commission promulgated
thereunder.
"GOVERNMENTAL AUTHORITY" means any agency, authority, board, bureau,
commission, department, office, public entity, or instrumentality of any nature
whatsoever of the United States federal or foreign government, any state,
province or any city or other political subdivision or otherwise, whether now or
hereafter in existence, or any officer or official thereof, including, without
limitation, any Nevada Gaming Authority.
"HOLDERS" has the meaning given to it in the Recitals hereof.
"IMPOSITION" means any taxes, assessments, water rates, sewer rates,
maintenance charges, other governmental impositions and other charges now or
hereafter levied or assessed or imposed against the Trust Estate or any part
thereof.
"IMPROVEMENTS" means (a) all the buildings, structures, facilities and
improvements of every nature whatsoever now or hereafter situated on the Site or
any real property encumbered hereby, and (b) all fixtures, machinery,
appliances, building or other materials, equipment, including without limitation
all gaming equipment and devices, and all machinery, equipment, engines,
appliances and fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of dust,
refuse or garbage; all wall-beds, wall-safes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumb-waiters, awnings, window shades, Venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, computers, drapes, drapery rods and
brackets, mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing,
bathtubs, sinks, basins, pipes, faucets, water closets, laundry equipment,
washers, dryers, ice-boxes and heating units; all kitchen and restaurant
equipment, including but not limited to stoves, refrigerators, ovens, ranges,
dishwashers, disposals, water heaters, incinerators, communication systems, and
equipment; hot tubs, swimming pool heaters and equipment and all other attached
recreational equipment (computerized and otherwise), beauty and barber
equipment, all amusement rides and attractions attached to the Site, all
specifically designed installations and furnishings of every nature whatsoever
now or hereafter owned or leased by Trustor or in which Trustor has any rights
or interest and located in or on, or attached to, or used or intended to be
4
used or that are now or may hereafter be appropriated for use on or in
connection with the operation of the Site or any real or personal property
encumbered hereby or any other Improvements, or in connection with any
construction being conducted or that may be conducted thereon, and all
extensions, additions, accessions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing, and all of the right,
title and interest of Trustor in and to any such property, which, to the fullest
extent permitted by law, shall be conclusively deemed fixtures and improvements
and a part of the real property hereby encumbered.
"INDEMNITY AGREEMENT" means that certain Indemnity Agreement, dated as
of even date herewith, by Trustor to Beneficiary and certain other indemnified
parties named therein.
"INDENTURE" has the meaning given to it in the Recitals hereof.
"INDENTURE DOCUMENTS" means, collectively, the Indenture, the Notes,
the Indemnity Agreement, this Deed of Trust and the other Collateral Documents
and all other documents executed in connection with any of the foregoing, as
they may be amended, supplemented or otherwise modified from time to time in
accordance with the Intercreditor Agreement.
"INDENTURE TRUSTEE" has the meaning given to it in the Recitals hereof.
"INSOLVENT" means with respect to any Person, that such Person shall be
deemed to be insolvent if it shall fail generally, or shall admit in writing its
inability, to pay its debts as such debts become due and payable and/or if the
fair salable value of its assets is less than the amount required to pay its
probable liability on its existing debts as they become absolute and matured.
"INTANGIBLE COLLATERAL" means (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the Site
or Improvements, together with the goodwill associated therewith, and all names,
logos, and designs used by Trustor, or in connection with the Site or in which
Trustor has rights, with the exclusive right to use such names, logos, and
designs wherever they are now or hereafter used in connection with the Site or
the Improvements (or in connection with the marketing thereof) and all other
trade names, trademarks or service marks, whether or not registered, now or
hereafter used in connection with the Site or the Improvements, including,
without limitation, any interest as a lessee, licensee or franchisee, and, in
each case, together with the goodwill associated therewith; (b) subject to the
absolute assignment contained herein, the Rents; (c) any and all books, records,
customer lists, concession agreements, supply or service contracts, licenses,
permits, governmental approvals (to the extent such licenses, permits and
approvals may be pledged under applicable law), signs, goodwill, casino and
hotel credit and charge records, supplier lists, checking accounts, safe deposit
boxes (excluding the contents of such deposit boxes owned by Persons other than
Trustor and its Subsidiaries), cash, instruments, chattel papers, including
inter-company notes and pledges, documents, unearned premiums, deposits,
refunds, including but not limited to income tax refunds, prepaid expenses,
rebates, tax and insurance escrow and impound accounts, if any, actions and
rights in action, and all other claims, including without limitation
condemnation awards and insurance proceeds; and all other contract rights and
general intangibles resulting from or used in connection with the operation and
occupancy of the Trust Estate and the
5
Improvements and in which Trustor now or hereafter has rights; and (d) general
intangibles, vacation license resort agreements or other time share license or
right to use agreements, including without limitation all rents, issues,
profits, income and maintenance fees resulting therefrom, whether any of the
foregoing is now owned or hereafter acquired.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement,
dated as of January 29, 2004, by and among the Indenture Trustee and Bear Steams
Corporate Lending, Inc., as administrative agent and collateral agent.
"ISSUERS" has the meaning given to it in the Recitals hereof.
"LAND" means the real property situated in the County of Clark, State
of Nevada, more specifically described in Schedule A attached hereto and
incorporated herein by reference, including any after acquired title thereto.
"LANDLORD RIGHTS" has the meaning given to it in Section 2.1(g) hereof.
"LEASE SECURITY" has the meaning given to it in Section 2.1(g) hereof.
"LEGAL REQUIREMENTS" means all applicable restrictive covenants,
applicable zoning and subdivision ordinances and building codes, all applicable
health and Environmental Laws and regulations, all applicable gaming laws and
regulations, and all other applicable laws, ordinances, rules, regulations,
judicial decisions, administrative orders, and other requirements of any
Governmental Authority having jurisdiction over Trustor, the Trust Estate and/or
any Affiliate of Trustor, in effect either at the time of execution of this Deed
of Trust or at any time during the term hereof, including, without limitation,
all Gaming Laws.
"NET PROCEEDS" has the meaning given to it in the Recitals hereof
"NEVADA GAMING LICENSE" means any gaming license necessary for the
ownership, maintenance, financing or operation of the Site or the Improvements,
whether issued and/or required by Nevada Gaming Authorities, Gaming Laws or
otherwise.
"NOTE GUARANTEE" has the meaning given to it in the Recitals hereof
"NOTE PROCEEDS ACCOUNT" has the meaning given to it in the Recitals
hereof.
"NOTES" has the meaning given to it in the Recitals hereof.
"NRS" means the Nevada Revised Statutes as in effect from time to time.
"OBLIGATIONS" means (a) the payment and performance by Trustor of each
covenant, agreement, obligation and liability of Trustor contained in each and
every Indenture Document to which it is a party or by which it is bound, (b) the
payment of such additional loans or advances as hereafter may be made to Trustor
(individually or jointly and severally with any other Person) or its successors
or assigns when evidenced by a promissory note or notes reciting that they are
secured by this Deed of Trust; provided, however, that any and all future
advances by
6
Beneficiary to Trustor made for the improvement, protection or preservation of
the Trust Estate, together with interest at the rate applicable to overdue
principal set forth in the Indenture, shall be automatically secured hereby
unless such a note or instrument evidencing such advances specifically recites
that it is not intended to be secured hereby and (c) the payment of all sums
expended or advanced by Beneficiary under or pursuant to the terms of the Deed
of Trust or to protect the security hereof (including Protective Advances as
such term is defined in Section 6.2 hereof), together with interest thereon as
herein provided (without limiting the generality of the protections afforded by
NRS Chapter 106.300 through 106.400, funds disbursed that, in the reasonable
exercise of Beneficiary's judgment, are needed to protect Beneficiary's security
in the Trust Estate are to be deemed obligatory advances hereunder and will be
added to the total indebtedness secured by this Deed of Trust and such
indebtedness shall be increased accordingly).
"PERMITTED DISPOSITIONS" means (a) the sale, transfer, lease or other
disposition of assets in the Trust Estate, in the ordinary course of business
and of inventory held in the ordinary course of business and (b) other sales,
transfers, leases or other dispositions of assets in the Trust Estate, including
entering into Space Leases; provided that, in each case, all applicable
provisions of the Indenture Documents are complied with.
"PERMITTED ENCUMBRANCES" means (a) those Liens and exceptions set
forth on Schedule B of Exhibit E-1 of the Escrow and Security Agreement and (b)
those Liens set forth in clauses (7), (8), (10) and (17) of the definition of
"Permitted Liens" set forth in the Indenture.
"PERSON" means any individual, corporation, partnership, limited
liability company or partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"PERSONAL PROPERTY" has the meaning set forth in Section 3.11 hereof.
"PLEDGE AND SECURITY AGREEMENT" means that certain Pledge and
Security Agreement of even date herewith made by the Issuers, Trustor and
certain Affiliates of Trustor in favor of Beneficiary, for the benefit of, among
others, the Secured Parties.
"PROCEEDS" has the meaning assigned to it under the UCC and, in any
event, shall include but not be limited to (a) any and all proceeds of any
insurance (including without limitation property casualty and title insurance),
indemnity, warranty or guaranty payable from time to time with respect to any of
the Trust Estate; (b) any and all payments in any form whatsoever made or due
and payable from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Trust Estate by
any Governmental Authority; (c) subject to the absolute assignment contained
herein, the Rents or other benefits arising out of, in connection with or
pursuant to any Space Lease of the Trust Estate; and (d) any and all other
amounts from time to time paid or payable in connection with any of the Trust
Estate; provided, however, that Trustor is not authorized to dispose of any of
the Trust Estate unless such disposition is a Permitted Disposition.
"PROTECTIVE ADVANCES" has the meaning given to it in Section 6.2
hereof.
7
"RENTS" means all rents, room revenues, income, receipts, issues,
profits, revenues and maintenance fees, room, food and beverage revenues,
license and concession fees, income, proceeds and other benefits to which
Trustor may now or hereafter be entitled from the Site, the Improvements, the
Space Leases or any property encumbered hereby or any business or other activity
conducted by Trustor at the Site or the Improvements.
"SECURED PARTIES" means Beneficiary and the Holders.
"SITE" means the Land and the Appurtenant Rights.
"SPACE LEASES" means any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreements, and all
other agreements affecting the Trust Estate that Trustor has entered into, taken
by assignment, taken subject to, or assumed, or has otherwise become bound by,
now or in the future, that give any Person the right to conduct its business on,
or otherwise use, operate or occupy, all or any portion of the Site or
Improvements and any leases, agreements or arrangements permitting anyone to
enter upon or use any of the Trust Estate to extract or remove natural resources
of any kind, together with all amendments, extensions, and renewals of the
foregoing, together with all rental, occupancy, service, maintenance or any
other similar agreements pertaining to use or occupation of, or the rendering of
services at the Site, the Improvements or any part thereof.
"SPACE LESSEE(S)" means any and all tenants, licensees, or other
grantees of the Space Leases and any and all guarantors, sureties, endorsers or
others having primary or secondary liability with respect to such Space Leases.
"TANGIBLE COLLATERAL" means all personal property, goods, equipment,
supplies, building and other materials of every nature whatsoever and all other
tangible personal property used in the operation of the hotel, casino,
restaurants, stores, parking facilities, and all other commercial operations on
the Site or Improvements, including but not limited to communication systems,
visual and electronic surveillance systems and transportation systems and not
constituting a part of the real property subject to the real property Lien of
this Deed of Trust and including all property and materials stored therein in
which Trustor has an interest and all tools, utensils, food and beverage,
liquor, uniforms, linens, housekeeping and maintenance supplies, vehicles, fuel,
advertising and promotional material, blueprints, surveys, plans and other
documents relating to the Site or Improvements, and all construction materials
and all furnishings, fixtures and equipment, including, but not limited to, all
FF&E.
"TITLE INSURER" means Lawyers Title Insurance Corporation.
"TRUSTEE" has the meaning given to it in the Preamble hereof.
"TRUST ESTATE" means all of the property described in Granting
Clauses (a) through (o) in Section 2.1 hereof, inclusive, and each item of
property therein described.
"TRUSTOR" has the meaning given to it in the Preamble hereof.
8
"UCC" means the Uniform Commercial Code in effect in the State of
Nevada from time to time, NRS chapters 104 and 104A.
1.2 TERMS DEFINED ELSEWHERE. The following terms have the
meanings given to them in the Indenture:
AFFILIATE
COLLATERAL DOCUMENTS
LIEN
NEVADA GAMING AUTHORITIES
PERMITTED LIEN
RESTRICTED SUBSIDIARY
SUBSIDIARY
ARTICLE II.
GRANT
2.1 GRANT. Trustor, does hereby ASSIGN, BARGAIN, CONVEY, PLEDGE,
RELEASE, HYPOTHECATE, WARRANT, AND TRANSFER WITH POWER OF SALE UNTO TRUSTEE IN
TRUST FOR THE BENEFIT OF BENEFICIARY, FOR THE BENEFIT OF THE SECURED PARTIES,
FOR THE PURPOSE OF SECURING IN FAVOR OF BENEFICIARY, FOR THE BENEFIT OF THE
SECURED PARTIES, THE OBLIGATIONS, each of the following:
(a) The Land;
(b) TOGETHER WITH all the estate, right, title and
interest of Trustor of, in and to the Improvements;
(c) TOGETHER WITH all the estate, right, title and
interest of Trustor of, in and to the Appurtenant Rights;
(d) TOGETHER WITH all the estate, right, title and
interest of Trustor of, in and to the Tangible Collateral to the extent
permitted by, or not prohibited by, Gaming Laws and other Legal Requirements;
(e) TOGETHER WITH all the estate, right, title and
interest of Trustor of, in and to the Intangible Collateral to the extent
permitted by, or not prohibited by, Gaming Laws and other Legal Requirements;
(f) TOGETHER WITH (i) all the estate, right, title
and interest of Trustor of, in and to all judgments and decrees, insurance
proceeds, awards of damages and settlements hereafter made resulting from
condemnation proceedings or the taking of any of the property described
9
in Granting Clauses (a), (b), (c), (d) and (e) hereof or any part thereof under
the power of eminent domain, or for any damage (whether caused by such taking or
otherwise) to the property described in Granting Clauses (a), (b), (c), (d) and
(e) hereof or any part thereof, or to any Appurtenant Rights thereto, and
Beneficiary is (subject to the terms hereof) hereby authorized to collect and
receive said awards and proceeds and to give proper receipts and acquittance
therefor, and (subject to the terms hereof) to apply the same toward the payment
of the indebtedness and other sums secured hereby, notwithstanding the fact that
the amount owing thereon may not then be due and payable; (ii) all proceeds of
any sales or other dispositions of the property or rights described in Granting
Clauses (a), (b), (c), (d) and (e) hereof or any part thereof whether voluntary
or involuntary; provided, however, that the foregoing shall not be deemed to
permit such sales, transfers, or other dispositions except as specifically
permitted herein; and (iii) whether arising from any voluntary or involuntary
disposition of the property described in Granting Clauses (a), (b), (c), (d) and
(e), all Proceeds, products, replacements, additions, substitutions, renewals
and accessions, remainders, reversions and after-acquired interest in, of and to
such property;
(g) TOGETHER WITH the absolute assignment of all
right, title and interest of Trustor of, in and to any Space Leases or any part
thereof that Trustor has entered into, taken by assignment, taken subject to, or
assumed, or has otherwise become bound by, now or in the future,
together with all of the following (including all "Cash Collateral" within the
meaning of the Bankruptcy Law) arising from the Space Leases: (i) Rents
(subject, however, to the aforesaid absolute assignment to Trustee for the
benefit of Beneficiary and the conditional permission hereinbelow given to
Trustor to collect the Rents), (ii) all guarantees, letters of credit, security
deposits, collateral, cash deposits, and other credit enhancement, documents,
arrangements and other measures with respect to the Space Leases (the "LEASE
SECURITY"), (iii) all of Trustor's right, title, and interest under the Space
Leases (the "LANDLORD'S RIGHTS"), including (A) the right to receive and collect
the Rents from the lessee, sublessee or licensee, or their successor(s), under
any Space Lease(s) and (B) the right to enforce against any tenants thereunder
and otherwise any and all remedies under the Space Leases, including Trustor's
right to evict from possession any tenant thereunder or to retain, apply, use,
draw upon, pursue, enforce or realize upon any guaranty of any Space Lease; to
terminate, modify, or amend the Space Leases; to obtain possession of, use, or
occupy, any of the real or personal property subject to the Space Leases; and to
enforce or exercise, whether at law or in equity or by any other means, all
provisions of the Space Leases and all obligations of the tenants thereunder
based upon (y) any breach by such tenant under the applicable Space Lease
(including any claim that Trustor may have by reason of a termination,
rejection, or disaffirmance of such Space Lease pursuant to any Bankruptcy Law)
and (z) the use and occupancy of the premises demised, whether or not pursuant
to the applicable Space Lease (including any claim for use and occupancy arising
under landlord-tenant law of the State of Nevada or any Bankruptcy Law).
Permission is hereby given to Trustor, until such permission is revoked by
Beneficiary as hereafter provided, to collect and use the Rents, as they become
due and payable, but not more than one (1) month in advance thereof, to collect
and use the Lease Security and to exercise Landlord's Rights. Upon the
occurrence and during the continuance of an Event of Default, the permission
hereby given to Trustor to collect the Rents, to collect and use the Lease
Security and to exercise Landlord's Rights may be revoked by Beneficiary upon
written notice to Trustor, but such permission shall be reinstated upon a cure
or waiver of such Event of Default. Beneficiary shall have the right, at any
time and from time to time, to notify any Space Lessee of the rights of
Beneficiary as provided by this Granting Clause (g);
10
Notwithstanding anything to the contrary contained herein,
the foregoing provisions of this Granting Clause (g) shall not constitute an
assignment for purposes of security but shall constitute an absolute and present
assignment of the Rents to Beneficiary, subject, however, to the conditional
license given to Trustor to collect and use the Rents as hereinabove provided;
and the existence or exercise of such right of Trustor shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by Trustor;
(h) TOGETHER WITH all of Trustor's right, title and
interest in and to any and all maps, plans, specifications, surveys, studies,
tests, reports, data and drawings relating to the Site or the Improvements,
including, without limitation, all marketing plans, feasibility studies,
soils tests, design contracts and all contracts and agreements of Trustor
relating thereto including, without limitation, architectural, structural,
mechanical and engineering plans and specifications, studies, data and drawings
prepared for or relating to the Site or the construction, renovation or
restoration of any of the Improvements or the extraction of minerals, sand,
gravel or other valuable substances from the Site and purchase contracts or any
agreement granting Trustor a right to acquire any land situated within Clark
County, Nevada;
(i) TOGETHER WITH, to the extent permitted by Gaming
Laws and other Legal Requirements, all of Trustor's right, title, and interest
in and to any and all licenses, permits, variances, special permits, franchises,
certificates, rulings, certifications, validations, exemptions, filings,
registrations, authorizations, consents, approvals, waivers, orders, rights and
agreements (including, without limitation, options, option rights, contract
rights now or hereafter obtained by Trustor from any Governmental Authority
having or claiming jurisdiction over the Land, the FF&E, or any other element of
the Trust Estate or providing access thereto, or the operation of any business
on, at, or from the Site including, without limitation, any liquor or Nevada
Gaming Licenses (except for any registrations, licenses, findings of suitability
or approvals issued by the Nevada Gaming Authorities or any other liquor or
gaming licenses that are non-assignable); provided, that upon an Event of
Default, if Beneficiary is not qualified under the Gaming Laws to hold such
Nevada Gaming Licenses, then Beneficiary may designate an appropriately
qualified third party to which an assignment of such Nevada Gaming Licenses can
be made in compliance with the Gaming Laws;
(j) TOGETHER WITH all the estate, right, title and
interest of Trustor of, in and to all water stock, water permits and other water
rights relating to the Site;
(k) TOGETHER WITH all the estate, right, title and
interest of Trustor of, in and to all oil and gas and other mineral rights, if
any, in or pertaining to the Site and all royalty, leasehold and other rights of
Trustor pertaining thereto;
(l) TOGETHER WITH any and all monies and other
property, real or personal, that may from time to time be subjected to the Lien
hereof by Trustor or by anyone on its behalf or with its consent, or that may
come into the possession or be subject to the control of Trustee or Beneficiary
pursuant to this Deed of Trust or any other Indenture Document, including,
without limitation, any Protective Advances under this Deed of Trust; and all of
Trustor's right, title, and interest in and to all extensions, improvements,
betterments, renewals, substitutes for and replacements of, and all additions,
accessions, and appurtenances to, any of the foregoing that
11
Trustor may subsequently acquire or obtain by any means, or construct, assemble,
or otherwise place on any of the Trust Estate, and all conversions of any of the
foregoing; it being the intention of Trustor that all property hereafter
acquired by Trustor and required by the this Deed of Trust or any other
Indenture Document to be subject to the Lien of this Deed of Trust or intended
so to be shall forthwith upon the acquisition thereof by Trustor be subject to
the Lien of this Deed of Trust as if such property were now owned by Trustor and
were specifically described in this Deed of Trust and granted hereby or pursuant
hereto, and Trustee and Beneficiary are hereby authorized, subject to Gaming
Laws and other Legal Requirements, to receive any and all such property as and
for additional security for the Obligations. Trustor agrees to take any action
as may reasonably be necessary to evidence and perfect such Liens, including,
without limitation, the execution of any documents necessary to evidence and
perfect such Liens;
(m) TOGETHER WITH, to the extent permitted by Gaming
Laws and any other Legal Requirements, any and all Accounts Receivable and all
royalties, earnings, income, Proceeds, products, rents, revenues, reversions,
remainders, issues, profits, avails, production payments, and other benefits
directly or indirectly derived or otherwise arising from any of the foregoing,
all of which are hereby assigned to Beneficiary, who, except as otherwise
expressly provided in this Deed of Trust (including the provisions of Section
3.12 hereof), is authorized to collect and receive the same, to give receipts
and acquittances therefor and to apply the same to the Obligations, whether or
not then due and payable;
(n) TOGETHER WITH Proceeds of the foregoing property
described in Granting Clauses (a) through (m);
(o) TOGETHER WITH Trustor's rights further to assign,
sell, lease, encumber or otherwise transfer or dispose of the property described
in Granting Clauses (a) through (n) inclusive, above, for debt or otherwise; and
(p) EXPRESSLY EXCLUDING, HOWEVER, any assets
expressly excluded from the definition of "Collateral" in the Pledge and
Security Agreement.
2.2 TRUSTOR'S RIGHT TO ENCUMBER THE TRUST ESTATE. Trustor, for itself
and its successors and assigns, covenants and agrees that Trustor has good
right, full power and lawful authority to assign, grant, convey, warrant,
transfer, bargain or sell its interests in the Trust Estate in the manner and
form as aforesaid, and that the Trust Estate is free and clear of all Liens
whatsoever, except Permitted Liens, and Trustor shall warrant and forever defend
the above-bargained property in the quiet and peaceable possession of Trustee
and its successors and assigns against each and every Person lawfully or
otherwise claiming or to claim the whole or any part thereof, except for
Permitted Liens. Trustor agrees that any greater title to the Trust Estate
hereafter acquired by Trustor during the term hereof shall be automatically
subject hereto.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUSTOR
Trustor represents, warrants and covenants to Beneficiary and the
Secured Parties, as follows:
12
3.1 PERFORMANCE OF INDENTURE DOCUMENTS. Trustor shall perform,
observe and comply with each and every provision hereof, and with each and every
provision contained in the Deed of Trust and the other Indenture Documents
relating to Trustor and shall promptly pay to Beneficiary or the Person
specified in the relevant Indenture Document, as applicable, when payment shall
become due, the principal with interest thereon and all other sums required to
be paid by Trustor under this Deed of Trust or any other Indenture Document.
3.2 GENERAL REPRESENTATIONS, COVENANTS AND WARRANTIES. (a) Trustor
has good and marketable title to an indefeasible fee estate in the Land, free
and clear of all encumbrances except Permitted Encumbrances, and it has the
right to hold, occupy and enjoy its interest in the Trust Estate, and has good
right, full power and lawful authority to subject the Trust Estate to the Lien
of this Deed of Trust and pledge the same as provided herein and Beneficiary may
at all times peaceably and quietly enter upon, hold, occupy and enjoy the entire
Trust Estate in accordance with the terms hereof; (b) Trustor is not Insolvent
and no Bankruptcy or insolvency proceedings are pending or contemplated by or,
to the best of Trustor's knowledge, threatened against Trustor; (c) other than
amounts subject to mechanics' liens constituting Permitted Encumbrances, all
costs arising from construction of any Improvements, the performance of any
labor and the purchase of all Tangible Collateral and Improvements have been or
shall be paid when due; (d) the Land has direct access for ingress and egress to
dedicated street(s); (e) Trustor shall at all times conduct and operate the
Trust Estate in a manner so as not to lose the right to conduct gaming
activities on the Trust Estate; (f) no material part of the Trust Estate has
been damaged, destroyed, condemned or abandoned; and (g) as of the date hereof,
no part of the Trust Estate is the subject of condemnation proceedings and
Trustor has no knowledge of any contemplated or pending condemnation proceeding
with respect to any portion of the Trust Estate.
3.3 COMPLIANCE WITH LEGAL REQUIREMENTS. Except as provided in the
Indenture, Trustor shall promptly, fully, and faithfully comply in all material
respects with all Legal Requirements and shall cause all portions of the Trust
Estate and its use and occupancy to fully comply in all material respects with
Legal Requirements at all times, whether or not such compliance requires work or
remedial measures that are ordinary or extraordinary, foreseen or unforeseen,
structural or nonstructural, or that interfere with the use or enjoyment of the
Trust Estate.
3.4 TAXES. Except as otherwise permitted by the Indenture, (a)
Trustor shall pay all Impositions as they become due and payable and shall
deliver to Beneficiary promptly upon Beneficiary's request, evidence
satisfactory to Beneficiary that the Impositions have been paid or are not
delinquent; (b) Trustor shall not suffer to exist, permit or initiate the joint
assessment of the real and personal property, or any other procedure whereby the
Lien of the real property taxes and the Lien of the personal property taxes
shall be assessed, levied or charged to the Land as a single Lien; and (c) in
the event of the passage of any law deducting from the value of real property
for the purposes of taxation any Lien thereon, or changing in any way the
taxation of deeds of trust or obligations secured thereby for state or local
purposes, or the manner of collecting such taxes and imposing a tax, either
directly or indirectly, on this Deed of Trust or the other Indenture Documents
to which Trustor is a party, Trustor shall pay all such taxes.
13
3.5 INSURANCE.
(a) Trustor shall at its sole expense obtain for,
deliver to, assign and maintain for the benefit of Beneficiary, during the term
of this Deed of Trust, insurance policies insuring the Trust Estate and
liability insurance policies, all in accordance with the requirements of the
Indenture Documents. Trustor shall pay promptly when due any premiums on such
insurance policies and on any renewals thereof. In the event of the foreclosure
of this Deed of Trust or any other transfer of title to the Trust Estate in
partial or complete extinguishment of the Obligations, all right, title and
interest of Beneficiary in and to all insurance policies and renewals thereof
then in force shall pass to the purchaser or grantee.
(b) All Proceeds from any insurance policies,
including without limitation, business interruption insurance shall be
collected, held, handled and disbursed in accordance with the provisions of the
Indenture.
(c) Trustor shall not violate or permit to be
violated any of the conditions or provisions of any policy of insurance required
by this Deed of Trust or any other Indenture Document and Trustor shall so
perform and satisfy the requirements of the companies writing such policies
that, at all times, companies of good standing shall be willing to write and/or
continue such insurance. Trustor further covenants to promptly send to
Beneficiary all notices relating to any violation of such policies or otherwise
affecting Trustor's insurance coverage or ability to obtain and maintain such
insurance coverage.
3.6 CONDEMNATION. Trustor, within five (5) Business Days of obtaining
knowledge of the institution of any proceedings for the condemnation of the
Trust Estate or any portion thereof, shall notify Trustee and Beneficiary of the
pendency of such proceedings. Beneficiary may participate in any such
proceedings and Trustor from time to time shall execute and deliver to
Beneficiary all instruments requested by it to permit such participation;
provided, however, that such instruments shall be deemed as supplemental to the
foregoing grant of permission to Trustee and Beneficiary, and unless otherwise
required by applicable law, the foregoing permission shall, without more, be
deemed sufficient to permit Trustee and/or Beneficiary to participate in such
proceedings on behalf of Trustor. All such compensation awards, damages, claims,
rights of action and Proceeds, and any other payments or relief, and the right
thereto, are, whether paid to Beneficiary or Trustor or a third party trustee,
included in the Trust Estate. Beneficiary, after deducting therefrom all its
expenses, including reasonable attorneys' fees and expenses, shall apply all
Proceeds paid directly to it in accordance with the provisions of the Indenture.
All Proceeds paid directly to Trustor shall be given by Trustor immediately to
Beneficiary and, after Beneficiary deducts therefrom all its expenses, including
reasonable attorneys' fees and expenses, Beneficiary shall apply all remaining
amounts in accordance with the provisions of the Indenture. To the extent that
any condemnation proceeds are not required to be applied towards restoration of
the Improvements upon the Site, then said condemnation proceeds shall be applied
in accordance with the Indenture. Trustor hereby waives any rights it may have
under NRS 37:115, as amended or recodified from time to time.
14
3.7 CARE OF TRUST ESTATE.
(a) Trustor shall preserve and maintain the Trust
Estate in good condition and repair. Trustor shall not permit, commit or suffer
to exist any waste, impairment or deterioration of the Trust Estate or of any
part thereof that in any manner materially impairs Beneficiary's security
hereunder and shall not take any action that will increase the risk of fire or
other hazard to any part of the Trust Estate.
(b) Except for Permitted Dispositions, no material
part of the Improvements or Tangible Collateral that are part of the Trust
Estate shall be removed, demolished or materially altered, without the prior
written consent of Beneficiary. Trustor shall have the right, without such
consent, to remove and dispose of free from the Lien of this Deed of Trust any
part of the Improvements or Tangible Collateral that are part of the Trust
Estate as from time to time may become worn out or obsolete or otherwise not
useful in connection with the operation of the Trust Estate, provided that
either (i) such removal or disposition does not materially affect the value of
the Trust Estate or (ii) prior to or promptly following such removal, any such
property shall be replaced with other property of substantially equal utility
and of a value at least substantially equal to that of the replaced property
when first acquired and free from any Lien of any other Person (subject only to
Permitted Liens), and by such removal and replacement Trustor shall be deemed to
have subjected such replacement property to the Lien of this Deed of Trust.
3.8 LEASES.
(a) Except for the assignment effected hereby and in
the other Collateral Documents, Trustor has not executed any assignment or
pledge of any of the Space Leases, the Rents, or of Trustor's right, title and
interest in the same.
(b) This Deed of Trust does not and will not
constitute a violation or default under any Space Lease, and is and shall at all
times constitute a valid Lien on Trustor's interests in the Space Leases.
(c) Trustor shall not enter into any Space Lease or
any modifications or amendments to any Space Lease, either orally or in writing,
unless such Space Lease complies with the requirements of the Indenture
Documents.
(d) After an Event of Default, upon the request of
Beneficiary, Trustor shall deliver to Beneficiary executed copies of all Space
Leases.
3.9 FURTHER ENCUMBRANCE.
(a) At all times prior to the discharge of the
Obligations, except for Permitted Liens and Permitted Dispositions, Trustor
shall neither make nor suffer to exist, nor enter into any agreement (unless it
is contingent upon satisfaction of all conditions for a Permitted Lien or
Permitted Disposition) for, any sale, assignment, exchange, mortgage, transfer,
Lien, or hypothecation of all or any part of the Trust Estate, including,
without limitation, the Rents. As
15
used herein, "transfer" includes the actual transfer or other disposition,
whether voluntary or involuntary, by law, or otherwise, except those transfers
specifically permitted herein.
(b) Trustor agrees that in the event the ownership of
the Trust Estate or any part thereof becomes vested in a Person other than
Trustor, Beneficiary may, without notice to Trustor, deal in any way with such
successor or successors in interest with reference to this Deed of Trust
and the Obligations without in any way vitiating or discharging Trustor's or any
guarantor's, surety's or endorser's liability hereunder or upon the Obligations.
No sale of the Trust Estate and no forbearance to any Person with respect to
this Deed of Trust and no extension to any Person of the time for payment of the
Obligation, and any other sums hereby secured given by Beneficiary shall operate
to release, discharge, modify, change or affect the original liability of
Trustor, or such guarantor, surety or endorser either in whole or in part.
3.10 FURTHER ASSURANCES.
(a) At its sole cost and without expense to Trustee
or Beneficiary, and subject in all events to compliance with the Gaming Laws and
any other Legal Requirements, Trustor shall do, authorize, execute, acknowledge
and/or deliver any and all such further acts, deeds, conveyances, notices,
requests for notices, financing statements, continuation statements,
certificates, assignments, notices of assignments, agreements, instruments and
further assurances, and shall mark any chattel paper, deliver any chattel paper
or instruments to Beneficiary and take any other actions that are necessary,
prudent, or reasonably requested by Beneficiary or Trustee to perfect or
continue the perfection and second priority of Beneficiary's security interest
in the Trust Estate, to protect the Trust Estate against the rights, claims, or
interests of third Persons other than holders of Permitted Liens or to effect
the purposes of this Deed of Trust, including the security agreement and the
absolute assignment of Rents contained herein, or for the filing, registering or
recording thereof.
(b) Trustor shall forthwith upon the execution and
delivery of this Deed of Trust, and thereafter from time to time, cause this
Deed of Trust and each instrument of further assurance to be filed, indexed,
registered, recorded, given or delivered 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 Lien hereof upon, and the title of Trustee and/or
Beneficiary to, the Trust Estate.
3.11 SECURITY AGREEMENT, FIXTURE FILING AND FINANCING STATEMENTS.
(a) Trustor (as debtor) hereby grants to Beneficiary
(as creditor and secured party on behalf of and for the benefit of the Secured
Parties) a present and future security interest in all Tangible Collateral,
Intangible Collateral, FF&E, Improvements, all other personal property
now or hereafter owned or leased by Trustor or in which Trustor has or will have
any interest, to the extent that such property constitutes a part of the Trust
Estate (whether or not such items are stored on the premises or elsewhere),
Proceeds of the foregoing comprising a portion of the Trust Estate and all
products, substitutions, and accessions therefor and thereto, subject to
Beneficiary's rights to treat such property as real property as herein provided
(collectively, the "PERSONAL PROPERTY"). Trustor shall authorize, execute and/or
deliver any and all documents and
16
writings, including without limitation financing statements pursuant to the UCC,
as may be necessary or prudent to preserve and maintain the priority of the
security interest granted hereby on property that may be deemed subject to the
foregoing security agreement or as Beneficiary may reasonably request, and shall
pay to Beneficiary on demand any reasonable expenses incurred by Beneficiary in
connection with the preparation, execution and filing of any such documents.
Trustor hereby authorizes and empowers Beneficiary to file, on Trustor's behalf,
all financing statements and refiling and continuations thereof as advisable to
create, preserve and protect said security interest. Trustor acknowledges and
agrees that it is not authorized to, and will not, authenticate or file, or
authorize the filing of, any financing statements or other record with respect
to the Personal Property (including any amendments thereto, or continuation or
termination statements thereof), except as permitted by the Indenture Documents.
Trustor approves and ratifies any filing or recording of records made by or on
behalf of Beneficiary in connection with the perfection of the security interest
in favor of Beneficiary hereunder. This Deed of Trust constitutes both a real
property deed of trust and a "security agreement," within the meaning of the
UCC, and the Trust Estate includes both real and personal property and all other
rights and interests, whether tangible or intangible in nature, of Trustor in
the Trust Estate. Trustor by executing and delivering this Deed of Trust has
granted to Beneficiary, as security for the Obligations, a security interest in
the Trust Estate.
(b) Without in any way limiting the generality or of
the definition of the Trust Estate, this Deed of Trust constitutes a fixture
filing under Sections 9-334 and 9-502 of the UCC (NRS 104.9334 and 104.9502).
For such purposes, (i) the "debtor" is Trustor and its address is the address
given for it in the initial paragraph of this Deed of Trust; (ii) the "secured
party" is Beneficiary, and its address for the purpose of obtaining information
is the address given for it in the initial paragraph of this Deed of Trust;
(iii) the real estate to which the fixtures are or are to become attached is
Trustor's interest in the Site; and (iv) the record owner of such real estate is
Trustor.
(c) This Deed of Trust shall be deemed a security
agreement as defined in the UCC and the remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall include
any or all of (i) those prescribed herein, and (ii) those available under
applicable law, and (iii) those available under the UCC, all at Beneficiary's
sole election. In addition, a photographic or other reproduction of this Deed of
Trust shall be sufficient as a financing statement for filing wherever filing
may be necessary to perfect or continue the security interest granted herein.
(d) It is the intention of the parties that the
filing of a financing statement in the records normally having to do with
personal property shall never be construed as in anyway derogating from or
impairing the express declaration and intention of the parties hereto as
hereinabove stated that everything used in connection with the production of
income from the Trust Estate and/or adapted for use therein and/or that is
described or reflected in this Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable, shall be regarded as
part of the real property encumbered by this Deed of Trust irrespective of
whether (i) any such item is physically attached to the Improvements, (ii)
serial numbers are used for the better identification of certain equipment items
capable of being thus identified in any list filed
17
with Beneficiary, (iii) any such item is referred to or reflected in any such
financing statement so filed at any time. It is the intention of the parties
that the mention in any such financing statement of (A) rights in or to the
proceeds of any fire and/or hazard insurance policy, or (B) any award in eminent
domain proceedings for a taking or for loss of value, or (C) Trustor's interest
as lessors in any present or future Space Lease or rights to Rents, shall never
be construed as in anyway altering any of the rights of Beneficiary as
determined by this Deed of Trust or impugning the priority of Beneficiary's real
property Lien granted hereby or by any other recorded document, but such mention
in the financing statement is declared to be for the protection of Beneficiary
in the event any court or judge shall at any time hold with respect to the
matters set forth in the foregoing clauses (A), (B) and (C) that notice of
Beneficiary's priority of interest to be effective against a particular class of
Persons, including but not limited to, the federal government and any
subdivisions or entity of the federal government, must be filed in the UCC
records.
(e) All Personal Property that is subject to the
provisions of this security agreement shall be purchased or obtained by Trustor
in its name and free and clear of any Lien or encumbrance, except for Permitted
Liens and the Lien hereof, and shall be and at all times remain free and clear
of any lease or similar arrangement, chattel financing, installment sale
agreement, security agreement and any encumbrance of like kind, so that
Beneficiary's security interest shall attach to and vest in Trustor for the
benefit of Beneficiary, with the priority herein specified, immediately upon the
installation or use of the Personal Property at the Site and Trustor warrants
and represents that Beneficiary's security interest in the Personal Property is
a validly attached and binding security interest, properly perfected (in the
case of Intangible Collateral, so long as a financing statement in respect
thereof has been filed and any other actions set forth in Schedule 3 to the
Pledge and Security Agreement with respect thereto have been taken) and prior to
all other security interests therein except as otherwise permitted in this Deed
of Trust. The foregoing shall not be construed as limiting Trustor's rights to
transfer Personal Property pursuant to Permitted Dispositions.
(f) Except as could not reasonably be expected to
have a Material Adverse Effect (as defined in the Pledge and Security
Agreement), Trustor shall, prior to delinquency, default, or forfeiture, perform
all obligations and satisfy all material conditions required on its part to be
satisfied to preserve its rights and privileges under any contract, lease,
license, permit, or other authorization (i) under which it holds any Tangible
Collateral or (ii) which constitutes part of the Intangible Collateral, except
where Trustor is contesting such obligations in good faith.
(g) Except for damaged or obsolete Tangible
Collateral that is either no longer usable or that is removed temporarily for
repair or improvement or removed for replacement on the Trust Estate with
Tangible Collateral of similar function or as otherwise permitted herein, none
of the Tangible Collateral shall be removed from the Trust Estate without
Beneficiary's prior written consent.
(h) Trustor shall not change its corporate (or other
entity) or business name, or do business within the State of Nevada under any
name other than such name, or any trade name(s) other than those as to which
Trustor gives prior written notice to Beneficiary of its intent
18
to use such trade names, or any other business names (if any) specified in the
financing statements delivered to Beneficiary for filing in connection with the
execution hereof, without, in each case, providing Beneficiary with the
additional financing statement(s) and any other similar documents deemed
reasonably necessary by Beneficiary to assure that its security interest remains
perfected and of undiminished priority in all such Personal Property
notwithstanding such name change.
3.12 ASSIGNMENT OF LEASES AND RENTS. Subject to Gaming Laws and other
applicable Legal Requirements, the assignment of Leases and Rents set out above
in Granting Clause (g) shall constitute an absolute and present assignment to
Beneficiary, subject to the license herein given to Trustor to collect the
Rents, and shall be fully operative without any further action on the part of
any party, and specifically Beneficiary shall be entitled upon the occurrence of
an Event of Default hereunder to all Rents and to enter upon the Site and the
Improvements to collect such Rents; provided, however, that Beneficiary shall
not be obligated to take possession of the Trust Estate, or any portion thereof.
The absolute assignment contained in Granting Clause (g) shall not be deemed to
impose upon Beneficiary any of the obligations or duties of Trustor provided in
any such Space Lease (including, without limitation, any liability under the
covenant of quiet enjoyment contained in any lease in the event that any lessee
shall have been joined as a party defendant in any action to foreclose this Deed
of Trust and shall have been barred and foreclosed thereby of all right, title
and interest and equity of redemption in the Trust Estate or any part thereof).
3.13 EXPENSES AND INDEMNIFICATION. Trustor shall, upon demand by
Beneficiary, reimburse Beneficiary or any assignee of Beneficiary for all
reasonable expenses, including without limitation, out of pocket costs,
appraisal fees, recording fees, taxes, abstract fees, title policy fees, escrow
fees, attorneys' and paralegal fees, travel expenses, fees for inspecting
architect(s) and engineer(s) and all other costs and expenses of every character
that have been or may hereafter be incurred by Beneficiary or any assignee of
Beneficiary in connection with the preparation, execution and enforcement of
this Deed of Trust. Trustor shall indemnify Beneficiary with respect to any
transaction or matter in any way connected with any portion of the Trust Estate,
this Deed of Trust, including any occurrence at, in, on, upon or about the Trust
Estate (including any personal injury, loss of life, or property damage), or
Trustor's use, occupancy, or operation of the Trust Estate, or the filing or
enforcement of any mechanic's lien, or otherwise caused in whole or in part by
any act, omission or negligence occurring on or at the Trust Estate, including
failure to comply with any Legal Requirement or with any requirement of this
Deed of Trust that applies to Trustor, except to the extent resulting from the
gross negligence, fraud or willful misconduct of Trustee or Beneficiary. If
Beneficiary is made a party to any investigation, litigation or proceeding as to
which Trustor is required to indemnify Beneficiary, Beneficiary shall promptly
notify the Trustor in writing of the commencement of such investigation,
litigation or proceeding. Failure of Beneficiary to timely notify Trustor of the
commencement of such investigation, litigation or proceeding shall not relieve
Trustor of its obligation to indemnify Beneficiary. In case any such
investigation, litigation or proceeding shall be brought against Beneficiary and
Beneficiary shall notify Trustor of the commencement of such investigation,
litigation or proceeding, Trustor shall be entitled to participate in such
investigation, litigation or proceeding and, after written notice from Trustor
to Beneficiary, to
19
assume the defense of such investigation, litigation or proceeding with counsel
of its choice at its expense, provided that such counsel is reasonably
satisfactory to Beneficiary (and any settlement shall be subject to
Beneficiary's consent, which consent shall not be unreasonably withheld).
Notwithstanding the election of Trustor to assume the defense of such
investigation, litigation or proceeding, Beneficiary shall have the right to
employ separate counsel and to participate in the defense of such investigation,
litigation or proceeding, and Trustor shall bear the reasonable fees, costs and
expenses of such separate counsel if (A) Trustor shall not have employed counsel
reasonably satisfactory to Beneficiary to represent Beneficiary within a
reasonable time after notice of the institution of such investigation,
litigation or proceeding, or (B) Beneficiary otherwise requests Trustor to
employ separate counsel at the expense of Trustor, provided that Trustor shall
not be liable for fees, costs and expenses of more than one separate counsel in
connection with the same action and any separate but substantially similar or
related action the same jurisdiction. Any amount payable under any indemnity in
this Deed of Trust shall be a demand obligation, shall be added to, and become a
part of, the Obligations, shall be secured by this Deed of Trust and shall bear
interest at the interest rate specified in the Indenture. Such indemnity shall
survive any release of this Deed of Trust and any foreclosure.
3.14 BENEFICIARY'S CURE OF TRUSTOR'S DEFAULT. If Trustor defaults
hereunder in the payment of any Lien, encumbrance or Imposition, in its
obligation to furnish insurance hereunder, or in the performance or observance
of any other covenant, condition or term of this Deed of Trust or any other
Indenture Document, Beneficiary may, but is not obligated to, in order to
preserve its interest in the Trust Estate, perform or observe the same, and all
payments made (whether such payments are regular or accelerated payments) and
reasonable costs and expenses incurred or paid by Beneficiary in connection
therewith shall become due and payable immediately. The amounts so incurred or
paid by Beneficiary, together with interest thereon at the interest rate
applicable to overdue principal set forth in the Indenture, from the date
incurred until paid by Trustor, shall be added to the indebtedness and secured
by the Lien of this Deed of Trust. Beneficiary, is hereby empowered to enter and
to authorize others to enter upon the Site or any part thereof for the purpose
of performing or observing any such defaulted covenant, condition or term,
without thereby becoming liable to Trustor or any Person in possession holding
under Trustor. No exercise of any rights under this Section 3.14 by Beneficiary
shall cure or waive any Event of Default or notice of default hereunder or
invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
3.15 USE OF TRUST ESTATE. Trustor covenants that the Trust Estate
shall be used and operated in a manner consistent with the requirements of the
Indenture Documents.
3.16 COMPLIANCE WITH PERMITTED LIEN AGREEMENTS. Trustor shall comply
with each and every material obligation contained in any agreement pertaining to
a Permitted Lien.
3.17 DEFENSE OF ACTIONS. Trustor shall appear in and defend any
action or proceeding affecting or purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee, and shall pay all costs and
expenses, including costs of title search and insurance or other evidence of
title, preparation of survey, and reasonable attorneys' fees and expenses in any
such action or proceeding in which Beneficiary or Trustee may appear or may be
joined as a party and in any suit brought by Beneficiary based upon or in
connection with this Deed of Trust
20
or any other Indenture Document to which Trustor is a party. Nothing contained
in this Section 3.17 shall, however, limit the right of Beneficiary to appear in
such action or proceeding with counsel of its own choice, either on its own
behalf or on behalf of Trustor.
3.18 AFFILIATES. Subject to compliance with the requirements of
Gaming Laws and other applicable Legal Requirements, Trustor shall cause all of
its Affiliates in any way involved with the operation of the Trust Estate to
observe the covenants and conditions of this Deed of Trust to the extent
necessary to give the full intended effect to such covenants and conditions and
to protect and preserve the security of Beneficiary hereunder. Trustor shall not
use any Affiliate in the operation of the Trust Estate if such use would in any
way impair the security for the Obligations or circumvent any covenant or
condition of this Deed of Trust or of any other Indenture Document.
3.19 TITLE INSURANCE. Promptly after the recording of this Deed of
Trust, Trustor shall cause to be delivered to Beneficiary at Trustor's expense,
one or more ALTA extended coverage "Lender's Policies of Title Insurance,"
satisfactory to Beneficiary in all material respects, showing fee title to the
real property situated in the County of Clark, State of Nevada, more
specifically described in Schedule A, vested in Trustor and the Lien of this
Deed of Trust to be a perfected Lien, prior to any and all encumbrances other
than Permitted Encumbrances (excluding, however, any such non-Permitted
Encumbrances for which the Title Insurer has agreed to provide an endorsement or
affirmative coverage protecting the Lien of this Deed of Trust against such
non-Permitted Encumbrances).
ARTICLE IV.
FINANCING AGREEMENT PROVISIONS
4.1 INTERACTION WITH FINANCING AGREEMENTS.
(a) All terms, covenants, conditions, provisions and
requirements of the Indenture are incorporated by reference in this Deed of
Trust.
(b) In the event of any conflict or inconsistency
between the provisions of this Deed of Trust and those of the Indenture, the
provisions of the Indenture shall govern.
4.2 OTHER COLLATERAL. This Deed of Trust is one of a number of
security agreements, including without limitation, the Collateral Documents,
delivered by or on behalf of Trustor and other Persons pursuant to the Indenture
Documents and securing the Obligations. All potential junior Lien claimants are
placed on notice that, under any of the Indenture Documents (including any
separate future unrecorded agreement between Trustor and Beneficiary), other
collateral for the Obligations (i.e., collateral other than the Trust Estate)
may, under certain circumstances, be released without a corresponding reduction
in the total principal amount secured by this Deed of Trust. Such a release
would decrease the amount of collateral securing the same indebtedness, thereby
increasing the burden on the remaining Trust Estate created and continued by
this Deed of Trust. No such release shall impair the priority of the Lien of
this Deed of Trust. By accepting its interest in the Trust Estate, each and
every junior Lien claimant shall be deemed to
21
have acknowledged the possibility of, and consented to, any such release.
Nothing in this Section 4.2 shall impose any obligation upon Beneficiary.
ARTICLE V.
DEFAULTS
5.1 EVENT OF DEFAULT. The term "EVENT OF DEFAULT," wherever used in
this Deed of Trust, shall mean (a) one or more of "Events of Default" as such
term is defined in the Indenture or any other Indenture Document by Trustor or
any of its Affiliates, or (b) if any "borrower" (as that term is defined in NRS
106.310) who may send a notice pursuant to NRS 106.3 80(1), (i) delivers, sends
by mail or otherwise gives, or purports to deliver, send by mail or otherwise
give, to Beneficiary under this Deed of Trust (A) any notice of an election to
terminate the operation of this Deed of Trust as security for any secured
obligation, including, without limitation, any obligation to repay any "future
advance" (as defined in NRS 106.320) of "principal" (as defined in NRS 106.345),
or (B) any other notice pursuant to NRS 106.380(1), (ii) records a statement
pursuant to NRS 106.380(3), or (iii) causes this Deed of Trust, any secured
obligation, or any Secured Party to be subject to NRS 106.380(2), 106.380(3) or
106.400.
ARTICLE VI.
REMEDIES
6.1 ACCELERATION OF MATURITY. If an Event of Default occurs,
Beneficiary may (except that such acceleration shall be automatic if the Event
of Default is caused by the Bankruptcy of either of the Issuers or Trustor), in
accordance with the Indenture Documents, declare the Obligations to be due and
payable immediately, and upon such declaration such principal and interest and
other sums shall immediately become due and payable without demand, presentment,
notice or other requirements of any kind (all of which Trustor waives)
notwithstanding anything in this Deed of Trust, any Indenture Document or Legal
Requirements to the contrary.
6.2 PROTECTIVE ADVANCES. If either of the Issuers or Trustor fails to
make any payment or perform any other obligation under the Notes, the Indenture,
or any other Indenture Document, then without thereby limiting Beneficiary's
other rights or remedies, waiving or releasing any of the Obligations, or
imposing any obligation on Beneficiary, Beneficiary may either advance any
amount owing or perform any or all actions that Beneficiary considers necessary
or appropriate to cure such default. All such advances shall constitute
"PROTECTIVE ADVANCES" and shall bear interest thereon at the interest rate
applicable to overdue principal set forth in the Indenture from the date
incurred until paid by the Issuers or Trustor. No sums advanced or performance
rendered by Beneficiary shall cure, or be deemed a waiver of any Event of
Default.
6.3 INSTITUTION OF EQUITY PROCEEDINGS. If an Event of Default occurs,
Beneficiary may institute an action, suit or proceeding in equity for specific
performance of this Deed of Trust or any other Indenture Document, all of which
shall be specifically enforceable by injunction or other equitable remedy
Trustor waives any defense based on laches or any applicable statute of
limitations.
22
6.4 BENEFICIARY'S POWER OF ENFORCEMENT.
(a) If an Event of Default occurs, Beneficiary shall
be entitled, at its option and in its sole and absolute discretion, to prepare
and record on its own behalf, or to deliver to Trustee for recording, if
appropriate, written declaration of default and demand for sale and written
"Notice of Breach and Election to Sell" (NRS 107.080(3)) (or other statutory
notice) to cause the Trust Estate to be sold to satisfy the Obligations, and in
the case of delivery to Trustee, Trustee shall cause said notice to be filed for
record.
(b) After the lapse of such time as may then be
required by law following the recordation of said Notice of Breach and Election
to Sell, and notice of sale having been given as then required by law, including
compliance with any applicable Gaming Laws, Trustee without demand on
Trustor, shall sell the Trust Estate or any portion thereof at the time and
place fixed by it in said notice, either as a whole or in separate parcels, and
in such order as it may determine, at public auction to the highest bidder, of
cash in lawful money of the United States payable at the time of sale. Trustee
may, for any cause it deems expedient, postpone the sale of all or any portion
of said property until it shall be completed and, in every case, notice of
postponement shall be given by public announcement thereof at the time and place
last appointed for the sale and from time to time thereafter Trustee may
postpone such sale by public announcement at the time fixed by the preceding
postponement. Trustee shall execute and deliver to the purchaser its deed, bill
of sale, or other instrument conveying said property so sold, but without any
covenant or warranty, express or implied. The recitals in such instrument of
conveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. Any Person, including Beneficiary or any Secured Party, may bid at the
sale.
(c) After deducting all costs, fees and expenses of
Trustee and of this Deed of Trust, including, without limitation, costs of
evidence of title and reasonable attorneys' fees and other legal expenses of
Trustee or Beneficiary in connection with a sale, Trustee shall apply the
proceeds of such sale in accordance with the Indenture.
(d) Subject to compliance with applicable Gaming Laws
and other Legal Requirements, if any Event of Default occurs, Beneficiary may,
either with or without entry or taking possession of the Trust Estate, and
without regard to whether or not the Obligations shall be due and without
prejudice to the right of Beneficiary thereafter to bring an action or
proceeding to foreclose or any other action for any default existing at the time
such earlier action was commenced, proceed by any appropriate action or
proceeding: (i) to enforce payment of the Obligations, to the extent permitted
by law, or the performance of any term hereof or any other right; (ii) to
foreclose this Deed of Trust in any manner provided by law for the foreclosure
of mortgages or deeds of trust on real property and to sell, as an entirety or
in separate lots or parcels, the Trust Estate or any portion thereof pursuant to
the laws of the State of Nevada or under the judgment or decree of a court or
courts of competent jurisdiction, and Beneficiary shall be entitled to recover
in any such proceeding all costs and expenses incident thereto, including
reasonable attorneys' fees in such amount as shall be awarded by the court;
(iii) to exercise any or all of the rights and remedies available to it under
the Indenture Documents; and (iv) to pursue any other remedy available to it.
Beneficiary shall take action either by such proceedings or by
23
the exercise of its powers with respect to entry or taking possession, or both,
as Beneficiary may determine.
(e) The remedies described in this Section 6.4 may be
exercised with respect to all or any portion of the Personal Property, either
simultaneously with the sale of any real property encumbered hereby or
independent thereof. Beneficiary shall at any time be permitted to proceed
with respect to all or any portion of the Personal Property in any manner
permitted by the UCC. Trustor agrees that Beneficiary's inclusion of all or any
portion of the Personal Property (and all personal property that is subject to a
security interest in favor, or for the benefit, of Beneficiary) in a sale or
other remedy exercised with respect to the real property encumbered hereby, as
permitted by the UCC, is a commercially reasonable disposition of such property.
6.5 BENEFICIARY'S RIGHT TO ENTER AND TAKE POSSESSION, OPERATE
AND APPLY INCOME.
(a) Subject to compliance with Gaming Laws and other
Legal Requirements, if an Event of Default occurs, (i) Trustor, upon demand of
Beneficiary, shall forthwith surrender to Beneficiary the actual possession and,
if and to the extent permitted by law, Beneficiary itself, or by such officers
or agents as it may appoint, may enter and take possession of all the Trust
Estate including the Personal Property, without liability for trespass, damages
or otherwise, and may exclude Trustor and its agents and employees wholly
therefrom and may have joint access with Trustor to the books, papers and
accounts of Trustor; and (ii) Trustor shall pay monthly in advance to
Beneficiary on Beneficiary's entry into possession, or to any receiver appointed
to collect the Rents, all Rents then due and payable.
(b) If Trustor shall for any reason fail to surrender
or deliver the Trust Estate, the Personal Property or any part thereof after
Beneficiary's demand, Beneficiary may obtain a judgment or decree conferring on
Beneficiary or Trustee the right to immediate possession or requiring
Trustor to deliver immediate possession of all or part of such property to
Beneficiary or Trustee and Trustor hereby specifically consents to the entry of
such judgment or decree. Trustor shall pay to Beneficiary or Trustee, upon
demand, all reasonable costs and expenses of obtaining such judgment or decree
and reasonable compensation to Beneficiary or Trustee, their attorneys and
agents, and all such costs, expenses and compensation shall, until paid, be
secured by the Lien of this Deed of Trust.
(c) Subject to compliance with Gaming Laws and other
Legal Requirements, upon every such entering upon or taking of possession,
Beneficiary or Trustee may hold, store, use, operate, manage and control the
Trust Estate and conduct the business thereof, and, from time to time in
its sole and absolute discretion and without being under any duty to so act:
(i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements thereto
and thereon and purchase or otherwise acquire additional fixtures, personalty
and other property;
(ii) insure or keep the Trust Estate insured;
24
(iii) manage and operate the Trust Estate and
exercise all the rights and powers of Trustor in its name or otherwise with
respect to the same;
(iv) enter into agreements with others to exercise
the powers herein granted Beneficiary or Trustee, all as Beneficiary or Trustee
from time to time may determine; and, subject to the absolute assignment of the
Space Leases and Rents to Beneficiary, Beneficiary or Trustee may collect and
receive all Rents, including those past due as well as those accruing
thereafter; and shall apply the monies so received by Beneficiary or Trustee in
such priority as Beneficiary may determine to (A) the payment of interest and
principal due and payable on the Notes, the Indenture and any other Indenture
Document, (B) the deposits for taxes and assessments and insurance premiums due,
(C) the cost of insurance, taxes, assessments and other proper charges upon the
Trust Estate or any part thereof; (D) the compensation, expenses and
disbursements of the agents, attorneys and other representatives of Beneficiary
or Trustee; and (E) any other charges or costs required to be paid by Trustor
under the terms hereof; and
(v) rent or sublet the Trust Estate or any portion
thereof for any purpose permitted by this Deed of Trust.
Beneficiary or Trustee shall surrender possession of the Trust Estate
and the Personal Property to Trustor only when all that is due upon such
interest and principal, tax and insurance deposits, and all amounts under any of
the terms of this Deed of Trust and the other Indenture Documents, shall have
been paid and all defaults made good. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall occur and be
continuing.
6.6 LEASES. Beneficiary is authorized to foreclose this Deed of Trust
subject to the rights of any tenants of the Trust Estate, and the failure to
make any such tenants parties defendant to any such foreclosure proceedings and
to foreclose their rights shall not be, nor be asserted by Trustor to be, a
defense to any proceedings instituted by Beneficiary to collect the sums secured
hereby or to collect any deficiency remaining unpaid after the foreclosure sale
of the Trust Estate, or any portion thereof. Unless otherwise agreed by
Beneficiary in writing, all Space Leases executed subsequent to the date hereof,
or any part thereof, shall be subordinate and inferior to the Lien of this Deed
of Trust (subject to the provisions of Section 4.21(c) of the Indenture).
6.7 PURCHASE BY BENEFICIARY AND SECURED PARTIES. Upon any foreclosure
sale (whether judicial or nonjudicial), Beneficiary and the Secured Parties may
bid for and purchase the property subject to such sale and, upon compliance with
the terms of sale, may hold, retain and possess and dispose of such property in
their own absolute right without further accountability.
6.8 WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION
LAWS. Trustor agrees to the full extent permitted by law that if an Event of
Default occurs, neither Trustor nor anyone claiming through or under it shall or
will set up, claim or seek to take advantage of any appraisement, valuation,
stay, extension or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust or the
25
absolute sale of the Trust Estate or any portion thereof or the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereof, and Trustor for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprising the Trust Estate marshalled upon any foreclosure of the Lien hereof
and agrees that Trustee or any court having jurisdiction to foreclose such Lien
may sell the Trust Estate in part or as an entirety.
6.9 RECEIVER. If an Event of Default occurs, Beneficiary, to the
extent permitted by law and subject to compliance with all Gaming Laws and Legal
Requirements, and without regard to the value, adequacy or occupancy of the
security for the Obligations secured hereby, shall be entitled as a matter of
right if it so elects to the appointment of a receiver to enter upon and take
possession of the Trust Estate and to collect all Rents and apply the same as
the court may direct, and such receiver may be appointed by any court of
competent jurisdiction upon application by Beneficiary. Beneficiary may have a
receiver appointed without notice to Trustor or any third party, and Beneficiary
may waive any requirement that the receiver post a bond. Beneficiary shall have
the power to designate and select the Person who shall serve as the receiver and
to negotiate all terms and conditions under which such receiver shall serve. Any
receiver appointed on Beneficiary's behalf may be an Affiliate of Beneficiary.
The expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the powers herein contained shall be secured
by this Deed of Trust. The right to enter and take possession of and to manage
and operate the Trust Estate and to collect all Rents, whether by a receiver or
otherwise, shall be cumulative to any other right or remedy available to
Beneficiary under this Deed of Trust or any other Indenture Document or
otherwise available to Beneficiary and may be exercised concurrently therewith
or independently thereof. Beneficiary shall be liable to account only for such
Rents (including, without limitation, security deposits) actually received by
Beneficiary, whether received pursuant to this Section 6.9 or any other
provision hereof. Notwithstanding the appointment of any receiver or other
custodian, Beneficiary shall be entitled as pledgee to the possession and
control of any cash, deposits, or instruments at the time held by, or payable or
deliverable under this Deed of Trust to, Beneficiary.
6.10 SUITS TO PROTECT THE TRUST ESTATE. Beneficiary shall have the
power and authority to institute and maintain any suits and proceedings as
Beneficiary, in its sole and absolute discretion, may deem advisable (a) to
prevent any impairment of the Trust Estate by any acts that may be unlawful or
in violation of this Deed of Trust, (b) to preserve or protect its interest in
the Trust Estate, or (c) to restrain the enforcement of or compliance with any
legislation or other Legal Requirement that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Beneficiary's interest.
6.11 PROOFS OF CLAIM. In the case of any receivership, Insolvency,
Bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Trustor, or, to the extent the same would result
in an Event of Default hereunder, any Subsidiary, or any guarantor, co-maker or
endorser of any of Trustor's obligations, its creditors or its property,
Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim
26
or other documents as it may deem to be necessary or advisable in order to have
its claims allowed in such proceedings for the entire amount due and payable by
Trustor under this Deed of Trust and the other Indenture Documents, at the date
of the institution of such proceedings, and for any additional amounts that may
become due and payable by Trustor after such date.
6.12 TRUSTOR TO PAY THE OBLIGATIONS ON ANY DEFAULT IN PAYMENT;
APPLICATION OF MONIES BY BENEFICIARY.
(a) In case of a foreclosure sale of all or any part
of the Trust Estate and of the application of the proceeds of sale to the
payment of the Obligations, Beneficiary shall be entitled to enforce payment
from Trustor of any additional amounts then remaining due and unpaid with
respect to the Obligations and to recover judgment against Trustor for any
portion thereof remaining unpaid, with interest at the rate applicable to
overdue principal as set forth in the Indenture.
(b) Trustor hereby agrees to the extent permitted by
law, that no recovery of any judgment by Beneficiary or other action by
Beneficiary and no attachment or levy of any execution upon any property of
Trustor by Beneficiary (other than a foreclosure of the entire Trust Estate
hereunder) shall in any way affect the Lien of this Deed of Trust upon the Trust
Estate or any part thereof or any Lien, rights, powers or remedies of
Beneficiary hereunder, but such Lien, rights, powers and remedies shall continue
unimpaired as before.
(c) Any monies collected or received by Beneficiary
under this Section 6.12 shall be applied in accordance with the Indenture.
(d) The provisions of this Section 6.12 shall not be
deemed to limit or otherwise modify the provisions of any guaranty of the
indebtedness evidenced by the Indenture Documents.
6.13 DELAY OR OMISSION; NO WAIVER. No delay or omission of
Beneficiary or any Secured Party to exercise any right, power or remedy upon any
Event of Default shall exhaust or impair any such right, power or remedy or
shall be construed to waive any such Event of Default or to constitute
acquiescence therein. Every right, power and remedy given to Beneficiary whether
contained herein or in any other Indenture Document or otherwise available to
Beneficiary may be exercised from time to time and as often as may be deemed
expedient by Beneficiary.
6.14 NO WAIVER OF ONE DEFAULT TO AFFECT ANOTHER. No waiver of any
Event of Default hereunder shall extend to or affect any subsequent or any other
Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Beneficiary (a) grants forbearance or an extension of
time for the payment of any of the Obligations; (b) takes other or additional
security for the payment thereof; (c) waives or does not exercise any right
granted in this Deed of Trust or any other Indenture Document; (d) releases any
part of the Trust Estate from the Lien of this Deed of Trust or any other
instrument securing the Obligations; (e) consents to the filing of any map, plat
or replat of the Site to the extent such consent is required); (f) consents to
the granting of any easement on the Site (to the extent such consent is
27
required); or (g) makes or consents to any agreement changing the terms of this
Deed of Trust or any other Indenture Document subordinating the Lien hereof, no
such act or omission shall release, discharge, modify, change or affect the
original liability of Trustor under any Indenture Document or otherwise, or any
subsequent purchaser of the Trust Estate or any part thereof or any maker,
co-signer, surety or guarantor. No such act or omission shall preclude
Beneficiary from exercising any right, power or privilege herein granted or
intended to be granted in case of any Event of Default then existing or of any
subsequent Event of Default, nor, except as otherwise expressly provided in an
instrument or instruments executed by Beneficiary, shall the Lien of this Deed
of Trust be altered thereby, except to the extent expressly provided in any
releases, maps, easements or subordinations described in clause (d), (e), (f) or
(g) of this Section 6.14. In the event of the sale or transfer by operation of
law or otherwise of all or any part of the Trust Estate, Beneficiary, without
notice to any Person, is hereby authorized and empowered to deal with any such
vendee or transferee with reference to the Trust Estate or the Obligations, or
with reference to any of the terms or conditions hereof, as fully and to the
same extent as it might deal with the original parties hereto and without in any
way releasing or discharging any of the liabilities or undertakings hereunder,
or waiving its right to declare such sale or transfer an Event of Default as
provided herein. Notwithstanding anything to the contrary contained in this Deed
of Trust or any other Indenture Document, (i) in the case of any non-monetary
Event of Default, Beneficiary may continue to accept payments secured hereunder
without thereby waiving the existence of such or any other Event of Default and
(ii) in the case of any monetary Event of Default, Beneficiary may accept
partial payments of any sums secured hereunder without thereby waiving the
existence of such Event of Default if the partial payment is not sufficient to
completely cure such Event of Default.
6.15 DISCONTINUANCE OF PROCEEDINGS; POSITION OF PARTIES RESTORED. If
Beneficiary shall have proceeded to enforce any right or remedy under this Deed
of Trust by foreclosure, entry of judgment or otherwise and such proceedings
shall have been discontinued or abandoned for any reason, or such proceedings
shall have resulted in a final determination adverse to Beneficiary, then and in
every such case Trustor and Beneficiary shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of
Beneficiary shall continue as if no such proceedings had occurred or had been
taken.
6.16 REMEDIES CUMULATIVE. No right, power or remedy, including
without limitation remedies with respect to any security for the Obligations,
conferred upon or reserved to Beneficiary by this Deed of Trust or any other
Indenture Document is exclusive of any other right, power or remedy, but each
and every such right, power and remedy shall be cumulative and concurrent and
shall be in addition to any other right, power and remedy given hereunder or
under any other Indenture Document, now or hereafter existing at law, in equity
or by statute, and Beneficiary shall be entitled to resort to such rights,
powers, remedies or security as Beneficiary shall in its sole and absolute
discretion deem advisable.
6.17 INTEREST AFTER EVENT OF DEFAULT. If an Event of Default shall
have occurred and is continuing, all sums outstanding and unpaid under the
Obligations shall, at Beneficiary's option, bear interest at the rate applicable
to overdue principal set forth in the Indenture, until
28
such Event of Default has been cured. Trustor's obligation to pay such interest
shall be secured by this Deed of Trust.
6.18 FORECLOSURE; EXPENSES OF LITIGATION. If Trustee forecloses,
reasonable attorneys' fees for services in the supervision of said foreclosure
proceeding shall be allowed to Trustee and Beneficiary as part of the
foreclosure costs. In the event of foreclosure of the Lien of this Deed of
Trust, there shall be allowed and included as additional indebtedness all
reasonable expenditures and expenses that may be paid or incurred by or on
behalf of Beneficiary for attorneys' fees, appraiser's fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs, and
costs (which may be estimated as to items to be expended after foreclosure sale
or entry of the decree) of procuring all such abstracts of title, title searches
and examinations, title insurance policies and guarantees, and similar data and
assurances with respect to title as Beneficiary may deem reasonably advisable
either to prosecute such suit or to evidence to a bidder at any sale that may be
had pursuant to such decree the true condition of the title to or the value of
the Trust Estate or any portion thereof. All expenditures and expenses of the
nature in this Section 6.18 mentioned, and such expenses and fees as may be
incurred in the protection of the Trust Estate and the maintenance of the Lien
of this Deed of Trust, including the fees of any attorney employed by
Beneficiary in any litigation or proceeding affecting this Deed of Trust, any
other Indenture Document, the Trust Estate or any portion thereof, including,
without limitation, civil, probate, appellate and Bankruptcy proceedings, or in
preparation for the commencement or defense of any proceeding or threatened suit
or proceeding, shall be immediately due and payable by Trustor, with interest
thereon at the rate applicable to overdue principal set forth in the Indenture
and shall be secured by this Deed of Trust. Trustee waives its right to any
statutory fee in connection with any judicial or nonjudicial foreclosure of the
Lien hereof and agrees to accept a reasonable fee for such services.
6.19 DEFICIENCY JUDGMENTS. If after foreclosure of this Deed of Trust
or Trustee's sale hereunder, there shall remain any deficiency with respect to
any of the Obligations, and Beneficiary shall institute any proceedings to
recover such deficiency or deficiencies, all such amounts shall continue to bear
interest at the rate applicable to overdue principal set forth in the Indenture.
Trustor waives any defense to Beneficiary's recovery against Trustor of any
deficiency after any foreclosure sale of the Trust Estate. Trustor expressly
waives any defense or benefits that may be derived from any statute granting
Trustor any defense to any such recovery by Beneficiary. In addition,
Beneficiary and Trustee shall be entitled to recovery of all of their reasonable
costs and expenditures (including without limitation any court imposed costs) in
connection with such proceedings, including their reasonable attorneys' fees,
appraisal fees and the other costs, fees and expenditures referred to in Section
6.18. This provision shall survive any foreclosure or sale of the Trust Estate,
any portion thereof and/or the extinguishment of the Lien hereof.
6.20 WAIVER OF JURY TRIAL. BENEFICIARY AND TRUSTOR EACH WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP
29
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THE OBLIGATIONS. ANY SUCH DISPUTES
SHALL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
6.21 EXCULPATION OF BENEFICIARY. The acceptance by Beneficiary of the
assignment contained herein with all of the rights, powers, privileges and
authority created hereby shall not, prior to entry upon and taking possession of
the Trust Estate by Beneficiary, be deemed or construed to make Beneficiary a
"mortgagee in possession"; nor thereafter or at any time or in any event
obligate Beneficiary to appear in or defend any action or proceeding relating to
the Space Leases, the Rents or the Trust Estate, or to take any action hereunder
or to expend any money or incur any expenses or perform or discharge any
obligation, duty or liability under any Space Lease or to assume any obligation
or responsibility for any security deposits or other deposits except to the
extent such deposits are actually received by Beneficiary, nor shall
Beneficiary, prior to such entry and taking, be liable in any way for any injury
or damage to person or property sustained by any Person in or about the Trust
Estate.
ARTICLE VII.
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust,
Trustor and Beneficiary agree as follows:
7.1 EXERCISE OF REMEDIES BY TRUSTEE. To the extent that this Deed of
Trust or applicable law, including all Gaming Laws, authorizes or empowers, or
does not require approval for, Beneficiary to exercise any remedies set forth in
Article VI hereof or otherwise, or perform any acts in connection therewith,
Trustee (but not to the exclusion of Beneficiary unless so required under the
law of the State of Nevada) shall have the power to exercise any or all such
remedies, and to perform any acts provided for in this Deed of Trust in
connection therewith, all for the benefit of Beneficiary and on Beneficiary's
behalf in accordance with applicable law. In connection therewith, Trustee: (a)
shall not exercise, or waive the exercise of, any of Beneficiary's remedies
(other than any rights of Trustee to any indemnity or reimbursement), except at
Beneficiary's request, and (b) shall exercise, or waive the exercise of, any or
all of Beneficiary's remedies at Beneficiary's request, and in accordance with
Beneficiary's directions as to the manner of such exercise or waiver. Trustee
may, however, decline to follow Beneficiary's request or direction if Trustee
shall be advised by counsel that the action or proceeding, or manner thereof, so
directed may not lawfully be taken or waived.
7.2 RIGHTS AND PRIVILEGES OF TRUSTEE. To the extent that this Deed of
Trust requires Trustor to indemnify Beneficiary or reimburse Beneficiary for any
expenditures Beneficiary may incur, Trustee shall be entitled to the same
indemnity and the same rights to reimbursement of expenses as Beneficiary,
subject to such limitations and conditions as would apply in the case of
Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary's liability as to any matter, Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Trustor, pursuant to
this Deed of Trust, appoints Beneficiary as Trustor's attorney-in-fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Trustor's behalf without joinder or confirmation by the
other.
30
7.3 RESIGNATION OR REPLACEMENT OF TRUSTEE. Trustee may resign by an
instrument in writing addressed to Beneficiary, and Trustee may be removed at
any time with or without cause (i.e., in Beneficiary's sole and absolute
discretion) by an instrument in writing executed by Beneficiary. In case of the
death, resignation, removal or disqualification of Trustee or if for any reason
Beneficiary shall deem it desirable to appoint a substitute, successor or
replacement Trustee to act instead of Trustee originally named (or in place of
any substitute, successor or replacement Trustee), then Beneficiary shall have
the right and is hereby authorized and empowered to appoint a successor,
substitute or replacement Trustee, without any formality other than appointment
and designation in writing executed by Beneficiary, which instrument shall be
recorded in the Office of the Recorder of Clark County, Nevada. The law of the
State of Nevada (including, without limitation, the Gaming Laws) shall govern
the qualifications of any Trustee. The authority conferred upon Trustee by this
Deed of Trust shall automatically extend to any and all other successor,
substitute and replacement Trustee(s) successively until the Obligations have
been paid in full or the Trust Estate has been sold hereunder or released in
accordance with the provisions of the Indenture Documents. Beneficiary's written
appointment and designation of any Trustee shall be full evidence of
Beneficiary's right and authority to make the same and of all facts therein
recited. No confirmation, authorization, approval or other action by Trustor
shall be required in connection with any resignation or other replacement of
Trustee.
7.4 AUTHORITY OF BENEFICIARY. If Beneficiary is a banking
corporation, state banking corporation or a national banking association and the
instrument of appointment of any successor or replacement Trustee is executed on
Beneficiary's behalf by an officer of such corporation, state banking
corporation or national banking association, then such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of Beneficiary.
7.5 EFFECT OF APPOINTMENT OF SUCCESSOR TRUSTEE. Upon the appointment
and designation of any successor, substitute or replacement Trustee, and subject
to compliance with Gaming Laws and other Legal Requirements, Trustee's entire
estate and title in the Trust Estate shall vest in the designated successor,
substitute or replacement Trustee. Such successor, substitute or replacement
Trustee shall thereupon succeed to and shall hold, possess and execute all the
rights, powers, privileges, immunities and duties herein conferred upon Trustee.
All references herein to Trustee shall be deemed to refer to Trustee (including
any successor or substitute appointed and designated as herein provided) from
time to time acting hereunder.
7.6 CONFIRMATION OF TRANSFER AND SUCCESSION. Upon the written request
of Beneficiary or of any successor, substitute or replacement Trustee, any
former Trustee ceasing to act shall execute and deliver an instrument
transferring to such successor, substitute or replacement Trustee all of the
right, title, estate and interest in the Trust Estate of Trustee so ceasing to
act, together with all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee, and shall duly assign, transfer and deliver all
properties and monies held by said Trustee hereunder to said successor,
substitute or replacement Trustee.
7.7 EXCULPATION. Trustee shall not be liable for any error of
judgment or act done by Trustee in good faith, or otherwise be responsible or
accountable under any circumstances whatsoever, except for Trustee's gross
negligence, willful misconduct or knowing violation of
31
law. Trustee shall have the right to rely on any instrument, document or
signature authorizing or supporting any action taken or proposed to be taken by
it hereunder, believed by it in good faith to be genuine. All money received by
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated in any
manner from any other money (except to the extent required by law). Trustee
shall be under no liability for interest on any money received by it hereunder.
7.8 MULTIPLE TRUSTEES. If Beneficiary appoints multiple trustees,
then any Trustee, individually, may exercise all powers granted to Trustee under
this instrument, without the need for action by any other Trustee(s).
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
8.1 HEIRS, SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. Whenever one
of the parties hereto is named or referred to herein, the heirs, successors and
assigns of such party shall be included, all covenants and agreements contained
in this Deed of Trust, by or on behalf of Trustor or Beneficiary shall bind and
inure to the benefit of its heirs, successors and assigns, whether so expressed
or not.
8.2 ADDRESSES FOR NOTICES, ETC. Any notice or communication by
Trustor, Trustee or Beneficiary to the others is duly given if in writing and
delivered in person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing next
day delivery, to the others' address:
Beneficiary: Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890
Attention: Michael G. Oller, Jr.
Telephone: (302) 636-6410
Facsimile: (302) 636-4140
Trustor: Stratosphere Corporation
2000 Las Vegas Boulevard South
Las Vegas, Nevada 89104
Attn.: Denise Barton
Facsimile: (702) 383-4738
with a copy to: Piper Rudnick LLP
1251 Avenue of the Americas
New York, New York 10020
Attn: Steven L. Wasserman, Esq.
Facsimile No.: (212) 884-8448
32
Trustee: Lawyers Title of Nevada
1210 S. Valley View Boulevard
Las Vegas, Nevada 89102
Attn.: Randy Martorano, Vice President
Facsimile No.: (702) 731-5769
All notices and communications will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery. If a notice or communication is mailed in the manner provided
herein within the time prescribed, it is duly given, whether or not the
addressee receives it.
8.3 CHANGE OF NOTICE ADDRESS. Trustor, Trustee or Beneficiary, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
8.4 HEADINGS. The headings of the articles, sections, paragraphs and
subdivisions of this Deed of Trust are for convenience of reference only, are
not to be considered a part hereof, and shall not limit or expand or otherwise
affect any of the terms hereof.
8.5 INVALID PROVISIONS TO AFFECT NO OTHERS. In the event that any of
the covenants, agreements, terms or provisions contained herein shall be
invalid, illegal or unenforceable in any respect, the validity of the Lien
hereof and the remaining covenants, agreements, terms or provisions contained
herein or in the other Indenture Documents shall be in no way affected,
prejudiced or disturbed thereby. To the extent permitted by law, Trustor waives
any provision of law that renders any provision hereof prohibited or
unenforceable in any respect.
8.6 CHANGES AND PRIORITY OVER INTERVENING LIENS. Neither this Deed of
Trust nor any term hereof may be changed, waived, discharged or terminated
orally, or by any action or inaction, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. Any agreement hereafter made by Trustor and
Beneficiary relating to this Deed of Trust shall be superior to the rights of
the holder of any intervening Lien.
8.7 ESTOPPEL CERTIFICATES. Within ten (10) Business Days after
Beneficiary's written request, Trustor shall from time to time execute a
certificate, in recordable form (an "ESTOPPEL CERTIFICATE"), stating, except to
the extent it would be inaccurate to so state: (a) the current amount of the
Obligations secured hereunder and all elements thereof, including principal,
interest, and all other elements; (b) that, to Trustor's knowledge, Trustor has
no defense, offset, claim, counterclaim, right of recoupment, deduction, or
reduction against any of the Obligations secured hereunder; (c) that neither
this Deed of Trust nor any other Indenture Document to which it is a party has
been amended, whether orally or in writing; (d) that, to Trustor's knowledge,
Trustor has no claims against Beneficiary of any kind; (e) that any power of
attorney granted to Beneficiary is in full force and effect; and (f) such other
matters relating to this Deed of Trust, or any other Indenture Document to which
if is a party and the relationship of Trustor
33
and Beneficiary as Beneficiary shall reasonably request. In addition, the
Estoppel Certificate shall set forth the reasons why it would be inaccurate to
make any of the foregoing assurances.
8.8 WAIVER OF SETOFF AND COUNTERCLAIM. All of the Obligations shall
be payable without setoff, counterclaim or any deduction whatsoever. Trustor
hereby waives the right to assert a counterclaim (other than a compulsory
counterclaim) in any action or proceeding brought against it by Beneficiary or
any of the Secured Parties under any of the Indenture Documents, or arising out
of or in any way connected with this Deed of Trust or the other Indenture
Documents or the Obligations.
8.9 GOVERNING LAW. The Indenture, the Notes, and certain of the other
Indenture Documents provide that they are governed by, and construed and
enforced in accordance with, the laws of the State of New York. This Deed of
Trust shall also be construed under and governed by the laws of the State of New
York; provided, however, that (a) the creation, perfection, priority or
enforcement of liens on the Trust Estate (other than any Personal Property)
shall be governed and construed and enforced in accordance with the internal
laws of the State of Nevada without giving effect to the conflicts of law rules
and principles of the State of Nevada, (b) for any Personal Property, the
perfection, effect of perfection or non-perfection and priority of the security
interest shall be subject to any mandatory choice of law rules in the UCC; (c)
Trustor agrees that to the extent deficiency judgments are available under the
laws of the State of Nevada after a foreclosure (judicial or nonjudicial) of the
Trust Estate, or any portion thereof, or any other realization thereon by
Beneficiary or any Secured Party under any of the Indenture Documents,
Beneficiary or such Secured Party shall have the right to seek such a deficiency
judgment against Trustor in the State of Nevada; and (d) Trustor agrees that if
Beneficiary or any Secured Party under any of the Indenture Documents obtains a
deficiency judgment in another state against Trustor, then Beneficiary or such
Secured Party, as the case may be, shall have the right to enforce such judgment
in the State of Nevada to the extent permitted under the laws of the State of
Nevada, as well as in other states.
8.10 REQUIRED NOTICES. Trustor shall notify Beneficiary promptly of
the occurrence of any of the following and shall immediately provide Beneficiary
a copy of the notice or documents referred to: (a) receipt of notice from any
Governmental Authority relating to all or any material part of the Trust Estate
if such notice relates to a default or act, omission or circumstance that would
result in a default after notice or passage of time or both; (b) receipt of any
notice from any tenant leasing all or any material portion of the Trust Estate
if such notice relates to a default or act, omission or circumstance that would
result in a default after notice or passage of time or both; (c) receipt of
notice from the holder of any Permitted Lien relating to a default or act,
omission or circumstance that would result in a default after notice or passage
of time or both; (d) the commencement of any proceedings or the entry of any
judgment, decree or order materially affecting all or any portion of the Trust
Estate or that involve the potential liability of Trustor or its Affiliates in
an amount in excess of $5,000,000 (other than for personal injury actions and
related property damage suits that are covered by such insurance); or (e)
commencement of any judicial or administrative proceedings or the entry of any
judgment, decree or order by or against or otherwise affecting Trustor or any
Affiliate of Trustor, a material portion of the Trust Estate, or material
portion of the Personal Property, or any other action by any creditor or lessor
thereof as a result of any default under the terms of any lease.
34
8.11 RECONVEYANCE. Upon written request of Trustor when the Obligations
have been satisfied in full, Beneficiary shall cause Trustee to reconvey,
without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
8.12 ATTORNEYS' FEES. Without limiting any other provision contained
herein, Trustor agrees to pay all reasonable costs of Beneficiary or Trustee
incurred in connection with the enforcement of this Deed of Trust or any other
Indenture Document to which it is a party, including without limitation all
reasonable attorneys' fees whether or not suit is commenced, and including,
without limitation, fees incurred in connection with any probate, appellate,
Bankruptcy, deficiency or any other litigation proceedings, all of which sums
shall be secured hereby.
8.13 LATE CHARGES. By accepting payment of any sum secured hereby after
its due date, Beneficiary does not waive its right to collect any late charge
thereon or interest thereon at the interest rate specified on the Notes or as
otherwise specified in the Indenture, if so provided, not then paid or its right
either to require prompt payment when due of all other sums so secured or to
declare default for failure to pay any amounts not so paid.
8.14 COST OF ACCOUNTING. Trustor shall pay to Beneficiary the reasonable
costs for and on account of the preparation and rendition of any accounting that
Trustor may be entitled to require under any law or statute now or hereafter
providing therefor.
8.15 RIGHT OF ENTRY. Subject to compliance with Gaming Laws, Beneficiary
may at any reasonable time or times and on reasonable prior written notice to
Trustor make or cause to be made entry upon and inspections of the Trust Estate
or any part thereof in person or by agent.
8.16 CORRECTIONS. Trustor shall, upon request of Beneficiary or Trustee,
promptly correct any defect, error or omission that may be discovered in the
contents of this Deed of Trust (including, but not limited to, in the exhibits
and schedules attached hereto) or in the execution or acknowledgement hereof,
and shall execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by Trustee to
subject to the Lien hereby created any of Trustor's properties, rights or
interest covered or intended to be covered hereby, and to perfect and maintain
such Lien.
8.17 STATUTE OF LIMITATIONS. To the fullest extent allowed by the law, the
right to plead, use or assert any statute of limitations as a plea or defense or
bar of any kind, or for any purpose, to any debt, demand or obligation secured
or to be secured hereby, or to any complaint or other pleading or proceeding
filed, instituted or maintained for the purpose of enforcing this Deed of Trust
or any rights hereunder, is hereby waived by Trustor.
8.18 SUBROGATION. Should the proceeds of any Note, or advance made by
Beneficiary or any Holder under the Indenture, repayment of which is hereby
secured, or any part thereof, or any amount paid out or advanced by Beneficiary
or any Secured Party, be used directly or indirectly to pay off, discharge or
satisfy, in whole or in part, by any prior or superior Lien (other
35
than Permitted Encumbrances) upon the Trust Estate, or any part thereof, then,
as additional security hereunder, Trustee, on behalf of Beneficiary, shall be
subrogated to any and all rights, superior titles, Liens, and equities owned or
claimed by any owner or holder of said outstanding Liens, charges, and
indebtedness, however remote, regardless of whether said Liens, charges, and
indebtedness are acquired by assignment or have been released of record by the
holder thereof upon payment.
8.19 CONTEXT. In this Deed of Trust, whenever the context so requires, the
neuter includes the masculine and feminine, and the singular including the
plural, and vice versa.
8.20 TIME. Time is of the essence of each and every term, covenant and
condition hereof. Unless otherwise specified herein, any reference to "days" in
this Deed of Trust shall be deemed to mean "calendar days."
8.21 INTERPRETATION. As used in this Deed of Trust unless the context
clearly requires otherwise: The terms "herein" or "hereunder" and similar terms
without reference to a particular section shall refer to the entire Deed of
Trust and not just to the section in which such terms appear; the term "LIEN"
when referring to the Lien of this Deed of Trust shall also mean a security
interest, and the term "security interest" shall also mean a Lien.
8.22 EFFECT OF NRS 107.030. To the extent not inconsistent herewith, the
provisions of NRS 107.030 (1), (2) (in amounts hereinabove provided for), (3),
(4) (with interest at the default rate provided for under the Indenture), (5),
(6), (7) (reasonable), (8) and (9) are included herein by reference and made
part of this Deed of Trust.
8.23 AMENDMENTS. This Deed of Trust cannot be waived, changed, discharged
or terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, discharge or termination is
sought and only as permitted by both the provisions of the Intercreditor
Agreement and the Indenture.
8.24 DEED OF TRUST. Beneficiary and Trustee acknowledge, understand and
agree that, to the extent the prior approval of the Nevada Gaming Authorities is
required pursuant to applicable law for the exercise, operation and
effectiveness of any remedy hereunder or under any other Indenture Document, or
the taking of any action that may be taken by Beneficiary or Trustee hereunder
or under any other Indenture Document, including without limitation the taking
of possession and disposition of collateral consisting of gaming devises,
cashless wagering systems and associated equipment (as those terms are defined
in Nevada Revised Statutes 463.0155, 463.0136 and 463.014), such remedy or
action shall be subject to such prior approval of the Nevada Gaming Authorities
and the Beneficiary or Trustee may be subject to being called forward for
licensing or a finding of suitability.
8.25 BANK DEED OF TRUST. Notwithstanding anything to the contrary in this
Deed of Trust to the contrary, it is acknowledged that the Trustor has entered
into that certain Deed of Trust, Assignment of Rents and Leases, Security
Agreement and Fixture Filing of even date herewith in favor of Lawyers Title of
Nevada, as trustee, and Bear Stearns Corporate Lending Inc. (the "ADMINISTRATIVE
AGENT"), as Beneficiary (the "BANK DEED OF TRUST"). In accordance
36
with the Administrative Agent's senior lien with respect to the Trust Estate,
any provisions hereof shall be subject to the rights of the Administrative Agent
under the Bank Deed of Trust, as limited by the Intercreditor Agreement.
ARTICLE IX.
POWER OF ATTORNEY
9.1 GRANT OF POWER. Subject to compliance with Gaming Laws and other
applicable Legal Requirements, Trustor irrevocably appoints Beneficiary and any
successor thereto as its attorney-in-fact, with full power and authority,
including the power of substitution, exercisable only during the continuance of
an Event of Default to act for Trustor in its name, place and stead with respect
to the Trust Estate.
ARTICLE X.
GUARANTOR PROVISIONS
10.1 ABSOLUTE AND UNCONDITIONAL OBLIGATIONS. All rights of Beneficiary and
all obligations of Trustor hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity, legality or enforceability of any
Indenture Document, (b) the failure of any holder of any of the Obligations to
assert any claim or demand or to enforce any right or remedy against the
Issuers, Trustor or any other Person (including any other guarantor of the
Obligations) under the provisions of any Indenture Document or otherwise or to
exercise any right or remedy against any other guarantor of, or collateral
securing, any of the Obligations, (c) any change in the time, manner or place of
payment of, or in any other term of, all of the Obligations, or any other
extension or renewal of any Obligation, (d) any reduction, limitation,
impairment or termination of any of the Obligations for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to, and Trustor hereby waives any right to or claim of, any defense
or setoff, counterclaim, recoupment, or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any Obligation,
(e) any amendment to, rescission, waiver, or other modification of, or any
consent to departure from, any of the terms of any Indenture Document, (f) any
sale, exchange, release or surrender of, realization upon or other manner or
order of dealing with any property by whomsoever pledged or mortgaged to secure
or howsoever securing the Obligations or any liabilities or obligations
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof and/or any offset there against, (g) the application of any
sums by whomsoever paid or howsoever realized to any obligations and liabilities
of the Issuers, Trustor or any other Person to the Holders under the Indenture
Documents in the manner provided therein regardless of what obligations and
liabilities remain unpaid, (h) any action or failure to act in any manner
referred to in this Deed of Trust that may deprive Trustor of its right to
subrogation against the Issuers or any other Person to recover full indemnity
for any payments or performances made pursuant to this Deed of Trust or of its
right of contribution against any other Person and (i) any other circumstance
that might otherwise constitute a defense available to, or a legal or equitable
discharge of, the Issuers, Trustor, any surety or any guarantor or any other
Person.
37
10.2 WAIVER. Trustor hereby waives and relinquishes all rights and
remedies accorded by applicable law to sureties or guarantors and agrees not to
assert or take advantage of any such rights or remedies, including (a) any right
to require Beneficiary or any Secured Party to proceed against the Issuers or
any other Person or to proceed against or exhaust any security held by
Beneficiary or any Secured Party at any time or to pursue any other remedy in
Beneficiary's or any other Secured Party's power before proceeding against
Trustor, (b) any defense that may arise by reason of the incapacity, lack of
power or authority, death, dissolution, merger, termination or disability of the
Issuers or any other Person or the failure of Beneficiary or any Secured Party
to file or enforce a claim against the estate (in administration, Bankruptcy or
any other proceeding) of the Issuers or any other Person, (c) demand,
presentment, protest and notice of any kind except as provided herein, including
notice of the existence, creation or incurring of any new or additional
indebtedness or obligation or of any action or non-action on the part of the
Issuers, Beneficiary, any Secured Party, any endorser or creditor of the
Issuers, Trustor or on the part of any other Person under this or any other
instrument in connection with any obligation or evidence of indebtedness held by
Beneficiary or any Secured Party as collateral or in connection with any
Obligation, (d) any defense based upon an election of remedies by Beneficiary or
any Secured Party, including an election to proceed by non-judicial rather than
judicial foreclosure, which destroys or otherwise impairs the subrogation rights
of Trustor, the right of Trustor to proceed against the Issuers or any other
Person for reimbursement, or both, (e) any defense based on any offset against
any amounts that may be owed by any Person to Trustor for any reason whatsoever,
(f) any defense based on any act, failure to act, delay or omission whatsoever
on the part of the Issuers or any other Person of the failure by the Issuers or
any other Person to do any act or thing or to observe or perform any covenant,
condition or agreement to be observed or performed by it under any Indenture
Document, (g) any defense based upon any statute or rule of law that provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal, (h) any defense, setoff or
counterclaim that may at any time be available to or asserted by the Issuers or
any other Person against Beneficiary, any Secured Party or any other Person
under any Indenture Document, (i) any duty on the part of Beneficiary or any
Secured Party to disclose to Trustor any facts Beneficiary or any Secured Party
may now or hereafter know about the Issuers or any other Person, regardless of
whether Beneficiary or such Secured Party have reason to believe that any such
facts materially increase the risk beyond that which Trustor intends to assume,
or have reason to believe that such facts are unknown to Trustor, or have a
reasonable opportunity to communicate such facts to Trustor, since Trustor
acknowledges that Trustor is fully responsible for being and keeping informed of
the financial condition of the Issuers and any other Person liable for the
Obligations and of all circumstances bearing on the risk of non-payment or
non-performance of any obligations and liabilities hereby guaranteed, (j) the
fact that Trustor may at any time in the future dispose of all or part of its
direct or indirect interest in the Issuers or any other Person or otherwise
cease to be an Affiliate of the Issuers or any other Person, as the case may be,
(k) any defense based on any change in the time, manner or place of any payment
or performance under, or in any other term of, the Indenture Documents or any
other amendment, renewal, extension, acceleration, compromise or waiver of or
any consent or departure from the terms of the Indenture Documents, (l) any
defense arising because of Beneficiary's or any other Secured Party's election,
in any proceeding instituted under the Bankruptcy Law, of the application of
Section 1111(b)(2) of the Bankruptcy Law, and (m) any defense based upon any
borrowing or
38
grant of a security interest under Section 364 of the Bankruptcy Law. To the
fullest extent permitted by NRS 40.485 (1) and (2), the provisions of NRS 40.430
are waived.
10.3 NET WORTH LIMITATION. If, notwithstanding the representation and
warranty set forth in Section 3.2(b) hereof or anything to the contrary herein,
enforcement of the liability of Trustor under this Deed of Trust for the full
amount of the Obligations would be an unlawful or voidable transfer under any
applicable fraudulent conveyance or fraudulent transfer law or any comparable
law, then the liability of Trustor hereunder shall be reduced to the highest
amount for which such liability may then be enforced without giving rise to an
unlawful or voidable transfer under any such law.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
39
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust, Assignment of
Rents and Leases, Security Agreement and Fixture Filing as of the day and year
first above written.
TRUSTOR:
STRATOSPHERE CORPORATION,
a Delaware corporation
By:_______________________________________
Name: Richard P. Brown
Title: President and Chief Executive Officer
S-1
STATE OF NEVADA )
) ss:
COUNTY OF CLARK )
This instrument was acknowledged before me on May 21, 2004 by Richard P.
Brown, the President and Chief Executive Officer of Stratosphere Corporation, a
Delaware corporation.
-------------------------------------------
NOTARY PUBLIC
SCHEDULE A
DESCRIPTION OF THE LAND
PARCEL 1:
That portion of the Southwest Quarter (SW 1/4) of Section 3, Township 21 South,
Range 61 East, M.D.M., more particularly described as follows:
COMMENCING at the Southeast corner (SE Cor.) of Lot Nineteen (19), Block Five
(5) of the Meadows Addition to Las Vegas, as shown in Book 1 of Plats, page 43,
in the Office of the County Recorder of Clark County, Nevada, Said point being
on the North right of way line of Boston Street (50.00 feet wide), The West
right of way line of Commerce Street (40.00 feet wide), and on the line common
to Sections 3 and 4; Thence North 04(degree)39'21" East along the West line of
Section 3 and the West right of way line of said Commerce Street a distance of
900.79 feet; Thence South 86(degree)31'59" East a distance of 40.00 feet to a
point on the East right of way line of Commerce Street, said point being the
True Point of Beginning; Thence continuing South 86(degree)31'59" East a
distance of 153.80 feet to a point on the centerline of the alley vacated April
8, 1964 in Book 528 as Document No. 424899; Thence South 03(degree)30'13" West
along said former centerline a distance of 100.02 feet; Thence North
86(degree)31'59" West a distance of 155.82 feet to a point on the East right of
way line of the aforementioned Commerce Street; Thence North 04(degree)39'21"
East along said East right of way a distance of 100.04 feet to the True Point of
Beginning.
PARCEL 2:
That portion of the Southwest Quarter (SW 1/4 of Section 3, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
COMMENCING at the Southeast corner (SE Cor.) of Lot Nineteen (19), Block Five
(5) of the Meadows Addition to Las Vegas, as shown by map thereof on file in
Book 1 of Plats, page 43, in the Office of the County Recorder of Clark County,
Nevada, said point being on the North right of way line of Boston Street (50.00
feet wide), the West right of way line of Commerce Street (40.00 feet wide) and
on the line common to Sections 3 and 4; Thence North 04(degree)39'21" East along
the West line of Section 3 and the West right of way line of said Commerce
Street a distance of 498.92 feet; Thence South 86(degree)29'59" East a distance
of 40.00 feet to a point on the East right of way line of Commerce Street, said
point being the True Point of Beginning;
Thence continuing South 86(degree)29'59" East a distance of 366.88 feet to a
point on the West right of way line of Main Street (90.00 feet wide);
Thence South 03(degree)30'13" West along the West right of way line of Main
Street a distance of 75.19 feet to a point on the Northwesterly right of way
line of Las Vegas Boulevard South (formerly North Fifth Street) (100.00 feet
wide);
Thence South 27(degree)57'21" West along said Northwesterly right of way line a
distance of 303.68 feet;
Thence North 85(degree)10'52" West a distance of 248.20 feet to a point on the
East right of way line of the aforementioned Commerce Street;
Thence North 04(degree)39'21" East along said East right of way line a distance
of 345.98 feet to the True Point of Beginning.
TOGETHER with that portion of vacated Commerce Street described in Order of
Vacation recorded February 5, 1996 in Book 960205 as Document No. 01894 of
Official Records.
EXCEPTING THEREFROM that portion of said land as conveyed to the City of Las
Vegas by Deed recorded January 26, 1996 in Book 960126 as Document No. 01487 of
Official Records.
PARCEL 3:
That portion of the Southeast Quarter (SE 1/4) of Section 4, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
Lots One (1) through Thirty-six (36) in Block Six (6) of Meadows Addition, as
shown by map thereof on file in Book 1 of Plats, page 43, in the Office of the
County Recorder of Clark County, Nevada.
TOGETHER with that certain vacated alley (15.00 feet wide) vacated April 17,
1987 in Book 870417 as Document No. 00648, of Official Records.
ALSO TOGETHER with those portions of vacated alley, vacated St. Louis Street and
vacated Commerce Street as described in Order of Vacation recorded February 5,
1996 in Book 960205 as Document No. 01894, of Official Records.
PARCEL 4:
That portion of the Southwest Quarter (SW 1/4) of Section 4, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
Lots Thirty-seven (37) through Forty-one (41) inclusive in Block Six (6) of
Meadows Additions to Las Vegas, as shown by map thereof on file in Book 1 of
Plats, page 43, in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley and vacated St. Louis Street as
described in Order of Vacation recorded February 5, 1996 in book 960205 as
Document No. 01894, of Official Records.
PARCEL 5:
COMMENCING at the Southeast Corner (SE Cor.) of Lot Nineteen (19) in Block Five
(5) of the Meadows Addition to Las Vegas as shown by map thereof on file in Book
1 of Plats, page 43, in the Office of the County Recorder, Clark County, Nevada,
said point being the North right of way line of Boston Street (50.00 feet);
Thence South 86(degree)12'48" East along the Easterly prolongation of the South
line thereof a distance of 40.00 feet to a point on the Easterly right of way
line of Commerce Street (40.00 feet wide), said point being the True Point of
Beginning;
Thence North 04(degree)39'21" East along said Easterly right of way and line
parallel and 40.00 feet East of the East line of Section 4, and the East line of
the Meadows Addition to Las Vegas a distance of 153.14 feet; Thence South
85(degree)10'52" East a distance of 248.20 feet to a point on the Northwesterly
right of way line of Las Vegas Boulevard South (100.00 feet wide);
Thence South 27(degree)57'21" West along said Northwesterly right of way line a
distance of 187.83 feet to a point on the Northerly right of way line of Boston
Street (50.00 feet wide);
Thence North 77(degree)23'31" West along said Northerly right of way line a
distance of 147.13 feet to an angle point in said Northerly right of way line;
Thence North 85(degree)54'23" West along said Northerly right of way line a
distance of 28.19 feet to the True Point of Beginning.
TOGETHER with that portion of vacated Commerce Street as described in Order of
Vacation recorded February 5, 1996 in Book 960205 as Document No. 01894, of
Official Records.
ALSO TOGETHER with that portion of vacated Boston Street as described in Order
of Vacation recorded March 1, 1996 in Book 960301 as Document No. 00935, of
Official Records.
EXCEPTING THEREFROM that portion of said land as conveyed to the City of Las
Vegas by Deed recorded January 26, 1996 in Book 960126 as Document No. 01487, of
Official Records.
PARCEL 6:
That portion of the Southwest Quarter (SW 1/4) of Section 3, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
COMMENCING at the. Southeast Corner (SE Cor.) of Lot Nineteen (19) in Block Five
(5) of the Meadows Addition to Las Vegas, as shown by map thereof on file in
Book 1 of Plats, page 43, in the Office of the County Recorder of Clark County,
Nevada, said portion being on the North right of way line of Boston Street
(50.00 feet wide), the West right of way of Commerce Street (40.00 feet wide),
and on the line common to Sections 3 and 4;
Thence North 04(degree)39'21 East along the West line of Section 3 and the West
right of way of said Commerce Street a distance of 348.95 feet;
Thence South 86(degree)29'59" East a distance of 198.87 feet to a point on the
centerline of the alley vacated April 8, 1964 in Book 528, as Document No.
424899, said point being the True Point of Beginning;
Thence North 03(degree)30'13" East along said former centerline a distance of
151.88 feet; South 86(degree)31'59" East a distance of 205.00 feet to a point on
the West right of way line of Main Street (90.00 feet wide); Thence South
03(degree)30'13" West along said West right of way line a distance of 152.00
feet;
Thence North 86(degree)29'59" West a distance of 205.00 feet to the True Point
of Beginning.
PARCEL 7:
That portion of the Southwest Quarter (SW 1/4) of Section 3, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
COMMENCING at the Southeast corner (SE Cor.) of Lot Nineteen (19) in Block Five
(5) of the Meadows Addition to Las Vegas as shown by map thereof on file in Book
1 of Plats, page 43, in the Office of the County Recorder of Clark County,
Nevada, said point being on the North right of way line of Boston Street (50.00
feet wide), the West right of way line of Commerce Street (40.00 feet wide), and
on the line common to Sections 3 and 4;
Thence North 04(degree)29'21" East along the West line of Section 3 and the West
right of way line of said Commerce Street a distance of 648.95 feet to corner
No. 5 of the land conveyed to Signal Oil Company, a California Corporation by
Deed recorded April 24, 1944 in Book 35, page 125 of Deeds, Clark County,
Nevada;
Thence South 86(degree)29'59" East along the North line of said Signal Oil
Company land a distance of 40.00 feet to a point on the East right of way line
of said Commerce Street, said point being the True Point of Beginning; Thence
continuing South 86(degree)29'59" East along said North line a distance of
363.87 feet to a point on the West right of way line of Main Street (90.00 feet
wide);
Thence South 03(degree)30'13" West along said West right of way line a distance
of 150.00 feet;
Thence North 86(degree)29'59" West a distance of 366.88 feet to a point on the
East right of way line of the aforementioned Commerce Street;
Thence North 04(degree)39'21" East along said East right of way line a distance
of 150.03 feet to the True Point of Beginning.
TOGETHER with that portion of vacated Commerce Street as described in Order of
Vacation recorded February 5, 1996 in Book 960205 as Document No. 01894, of
Official Records.
PARCEL 8:
Lots Nine (9) through Twenty-eight (28) in Block Five (5) of Meadows Addition,
as shown by map thereof on file in Book 1 of Plats, page 43, in the Office of
the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley, vacated St. Louis Street, vacated
Commerce Street and vacated Boston Street as described in Order of Vacation
recorded February 5, 1996 in Book 960205 as Document No. 01894, of Official
Records.
PARCEL 9:
Lots Twenty-nine (29) through Thirty-four (34) in Block Five (5) of Meadows
Addition to Las Vegas, as shown by map thereof on file in Book 1 of Plats, page
43, in the Office of the County Recorder, Clark County, Nevada.
TOGETHER with those portions of vacated alley and vacated Boston Street as
described in Order of Vacation recorded February 5, 1996 in Book 960205 as
Document No. 01894, of Official Records.
PARCEL 10:
Lots Thirty-five (35) and Thirty-six (36) in Block Five (5) of Meadows Addition,
as shown by map thereof on file in Book 1 of Plats, page 43, in the Office of
the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley, vacated portion of Fairfield
Avenue and vacated Boston Street as described in order of Vacation recorded
February 5, 1996 in Book 960205 as Document No. 01894, of Official Records.
PARCEL 11:
That portion of the Southeast Quarter (SE 1/4) of Section 4, Township 21 South,
Range 61 East, M.D.B. & M., more described as follows:
BEGINNING at the Northwest corner (NW Cor.) of Lot Forty-one (41) in Block Five
(5) of Meadows Addition as shown by map thereof on file in Book 1 of Plats, page
43, in the Office of the County Recorder of Clark County, Nevada, said point
being on the South right of way line of St. Louis Avenue (50.00 feet wide) and
the East right of way line of Fairfield Avenue (80.00 feet wide);
Thence South 04(degree)42'46" West along the West lines of Lots 41 through 37 a
distance of 120.00 feet to a point on a non-tangent curve concave to the
Southwest having a radius of 185.00 feet and being on the Northeasterly right of
way line of the Circular Road surrounding the "Plaza" as shown on said Meadows
Addition;
Thence from a radial line that bears North 17(degree)11'53" East, Southeasterly
along the arc of said curve through a central angle of 54(degree)15'56" an arc
length of 175.22 feet;
Thence North 04(degree)42'46" East along the East line of said Lots Thirty-seven
(37) through Forty-one (41) and their Southerly prolongation a distance of
229.72 feet to a point on the South right of way line of the aforementioned St.
Louis Avenue;
Thence North 86(degree)13'25" West along said South right of way line a distance
of 130.00 feet to the True Point of Beginning.
TOGETHER with those portions of vacated alley, vacated St. Louis Street and
vacated portion of Fairfield Avenue described in Order of Vacation recorded
February 5, 1996 in Book 960205 as Document No. 01894, of Official Records.
PARCEL 12:
Lots One (1) and Two (2) in Block Four (4) of Meadows Addition to Las Vegas a
shown by map thereof on file in Book 1 of Plats, page 43, in the Office of the
County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley, vacated portion of Fairfield
Avenue and vacated Boston Street as described in Order of Vacation recorded
February 5, 1996 in Book 960205 as Document No. 01894, of Official Records.
PARCEL 13:
Lots Three (3) through Ten (10) in Block Four (4) of Meadows Addition as shown
by map thereof on file in Book 1 of Plats, page 43, in the Office of the County
Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley and vacated Boston Street as
described in Order of Vacation recorded February 5, 1996 in Book 960205 as
Document No. 01894, of Official Records.
PARCEL 14:
Lots Eleven (11), Twelve (12) and Thirteen (13) in Block Four (4) of the Meadows
Addition as shown by map thereof on file in Book 1 of Plats, page 43, in the
Office of the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley and vacated Boston Street as
described in Order of Vacation recorded February 5, 1996 in Book 960205 as
Document No. 01894, of Official Records.
PARCEL 15:
Lots Fourteen (14) through Sixteen (16) in Block Four (4) of Meadows Addition,
as shown by map thereof on file in Book 1 of Plats, page 43, in the office of
the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley and vacated Boston Street as
described in Order of Vacation recorded February 5, 1996 in Book 960205 as
Document No. 01894, of Official Records.
PARCEL 16:
That portion of the Southwest Quarter (SW 1/4) of Section 3, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
BEGINNING at the Northeast corner (NE Cor.) of Lot Nineteen (19) in Block Four
(4) of Meadows Addition to Las Vegas as shown by map thereof on file in Book 1
of Plats, page 43, in the Office of the County Recorder of Clark County, Nevada;
Thence South 76(degree)56'10" East a distance of 131.42 feet to a point on the
Northwesterly right of way line of Las Vegas Boulevard South (100.00 feet wide);
Thence South 27(degree)57'21" West along said Northwesterly right of way line a
distance of 147.34 feet to a point on the Northeasterly right of way line of
Baltimore Avenue (50.00 feet wide);
Thence North 62(degree)02'39" West along said Northeasterly right of way line a
distance of 6.90 feet to a point on a tangent curve concave to the Southwest
having a radius of 250.00 feet;
Thence Northwesterly along the arc of said curve through a central angle of
15(degree)36'04" an arc length of 68.07 feet to a point on the Easterly line of
the aforementioned Meadows Addition to Las Vegas;
Thence North 04(degree)39'21" East along said Easterly line a distance of 133.67
feet to the True Point of Beginning.
EXCEPTING THEREFROM that portion conveyed to the City of Las Vegas by Deed
recorded January 26, 1996 in Book 960126 as Document No. 01485, of Official
Records.
PARCEL 17:
Lots Nineteen (19) through Twenty-four (24) in Block Four (4) of Meadows
Addition, as shown by map thereof on file in Book 1 of Plats, page 43, in the
Office of the County Recorder of Clark County, Nevada.
TOGETHER with that portion of vacated alley as described in Order of Vacation
recorded February 5, 1996 in Book 960205 as Document No. 01894, of Official
Records.
ALSO TOGETHER with that portion of vacated alley as described in Order of
Vacation recorded March 1, 1996 in Book 960301 as Document No. 00935, of
Official Records.
EXCEPTING THEREFROM that portion of said land conveyed to the City of Las Vegas
by Deed recorded January 26, 1996 in Book 960126 as Document No. 01486, of
Official Records.
PARCEL 18:
Lots Thirty-three (33) and Thirty-four (34) in Block Four (4) of The Meadows
Addition to Las Vegas as shown by map thereof on file in Book 1 of Plats, page
43, in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with that portion of vacated alley as described in Order of Vacation
recorded February 5, 1996 in Book 960205 as Document No. 01894, of Official
Records.
EXCEPTING THEREFROM that portion of said land conveyed to the City of Las Vegas
by Deed recorded January 26, 1996 in Book 960126 as Document No. 01896, of
Official Records.
PARCEL 19:
That portion of the Southeast Quarter (SE 1/4) of Section 4, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
BEGINNING at the Southwest corner (SW Cor.) of Lot Thirty-seven (37) in Block
Four (4) of Meadows Addition as shown by map thereof on file in Book 1 of Plats,
page 43, in the Office of the County Recorder of Clark County, Nevada, said
point being on the North right of way line of Baltimore Avenue (50.00 feet wide)
and the East right of way of Fairfield Avenue (80.00 feet wide);
Thence North 04(degree)42'46" East along the West line of Lots Thirty-seven (37)
through Forty (40) and their Northerly prolongation a distance of 118.70 feet to
a point on a non-tangent curve concave to the Northwest having a radius of
185.00 feet and being on the Southeasterly right of way line of the circular
road surrounding the "Plaza" as shown on said Meadows Addition;
Thence from a radial line that bears South 07(degree)46'21" East, Northeasterly
along the arc of said curve through a central angle of 54(degree)15'58", an arc
length of 175.22 feet; Thence South 04(degree)42'46" West along the East line of
Lots Thirty-seven (37) through Forty (40) and their Northerly Prolongation a
distance of 224.23 feet to a point on the North right of way line of the
aforementioned Baltimore Avenue; Thence North 86(degree)12'11" West along said
North right of way line a distance of 130.00 feet to the True Point of
Beginning.
TOGETHER with those portions of vacated alley and vacated portions of Fairfield
Avenue as described in Order of Vacation recorded February 5, 1996 in Book
960205 as Document No. 01894, of Official Records.
EXCEPTING THEREFROM that portion of said land conveyed to the City of Las Vegas
by Deed recorded January 26, 1996 in Book 960126 as Document No. 01486, of
Official Records.
PARCEL 20:
Lots Thirty-five (35) and Thirty-six (36) in Block Four (4) of the Meadows
Addition to Las Vegas as shown by map thereof on file in Book 1 of Plats, page
43, in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alleys described in Order of Vacation
recorded February 5, 1996 in Book 960205 as Document No. 01894, of Official
Records.
EXCEPTING THEREFROM that portion of said land conveyed to the City of Las Vegas
by Deed recorded January 26, 1996 in Book 960126 as Document No. 01486, of
Official Records.
PARCEL 21:
That portion of the Southwest Quarter (SW 1/4) of Section 3, Township 21 South,
Range 61 East, M.D.B. & M., more particularly described as follows:
COMMENCING at the Southeast corner (SE Cor.) of Lot Nineteen (19) in Block Five
(5) of the Meadows Addition to Las Vegas, as shown by map thereof on file in
Book 1 of Plats, page 43, in the Office of the County Recorder of Clark County,
Nevada, said point being on the North right of way line of Boston Avenue (50.00
feet wide), the West right of way line of Commerce Street (40.00 feet wide), and
on the line common to Sections 3 and 4;
North 04(degree)39'21" East along the West line of Section 3 and the West right
of way line of said Commerce Street a distance of 900.79 feet;
Thence South 86(degree)31'59" East a distance of 40.00 feet to a point on the
Easterly right of way line of Commerce Street, said point being the True Point
of Beginning;
Thence North 04(degree)39'21" East along said Easterly right of way line a
distance of 250.05 feet;
Thence South 86(degree)31'59" East a distance of 353.78 feet to a point on the
Westerly right of way line of Main Street (90.00 feet wide);
Thence South 03(degree)30'13" West along said Westerly right of way line a
distance of 250.00 feet;
Thence North 86(degree)31'59" West a distance of 358.80 feet to the True Point
of Beginning.
PARCEL 22:
That portion of the Southeast Quarter (SE 1/4) of Section 4, Township 21 South,
Range 61 East, M.D.B. & M., described as follows:
The "Plaza" as shown on that certain map of Meadows Addition on file in Book 1
of Plats, page 43 in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with that portion of adjacent Fairfield Avenue as described in Order of
Vacation recorded February 5, 1996 in Book 960205 as Document No. 01894, of
Official Records.
PARCEL 23:
Lots One (1), Two (2), Three (3) and Four (4) in Block Five (5) of The Meadows
Addition, as shown by map thereof on file in Book 1 of Plats, page 43 in the
Office of the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alleys and vacated St. Louis Street
described in Order of Vacation recorded February 5, 1996 in Book 960205 as
Document No. 01894, of Official Records.
PARCEL 24:
Lots Five (5), Six (6), Seven (7) and Eight (8) in Block Five (5) of the Meadows
Addition to Las Vegas as shown by map thereof on file in Book 1 of Plats, page
43, in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with those portions of vacated alley and vacated St. Louis Street as
described in Order of Vacation recorded February 5, 1996 in Book 960205 as
Document No. 01894, of Official Records.
PARCEL 25:
Lots Twenty-five (25) though Thirty-two (32) in Block Four (4) of the Meadows
Addition to Las Vegas as shown by map thereof on file in Book 1 of Plats, page
43, in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with that portion of vacated alley described in Order of Vacation
recorded February 5, 1996 in Book 960205 as Document No. 01894, of Official
Records.
EXCEPTING THEREFROM that portion of said land conveyed to the City of Las Vegas
by Deed recorded January 26, 1996 in Book 960126 as Document No. 01486, of
Official Records.
PARCEL 26:
Lots Forty-five (45) and Forty-six (46) in Block six (6) of the Meadows Addition
to Las Vegas as shown by map thereof on file in Book 1 of Plats, page 43 in the
Office of the County Recorder of Clark County, Nevada;
TOGETHER with that portion of vacated alley described in Order of Vacation
recorded February 5, 1996 in book 960205 as Document No. 01894, of Official
Records.
PARCEL 27:
Lots Forty-two (42), Forty-three (43) and Forty-four (44) in Block Six (6) of
the Meadows Addition to Las Vegas, as shown by map thereof on file in Book 1 of
Plats, page 43 in the Office of the County Recorder of Clark County, Nevada.
TOGETHER with that portion of vacated alley described in Order of Vacation
recorded February 5, 1996 in Book 960205 as Document No. 01894, of Official
Records.
PARCEL 28:
Lots Seventeen (17) and Eighteen (18) in Block Four (4) of Meadows Addition as
shown by map thereof on file in Book 1 of Plats, page 43 in the Office of the
County Recorder of Clark County, Nevada.
TOGETHER with that portion of vacated alley and that portion of vacated Boston
Street as described in Order of Vacation recorded February 5, 1996 in Book
960205 as Document No. 01894, of Official Records and in Order of Vacation
recorded March 1, 1996 in Book 960301 as Document No. 00935, of Official
Records.
PARCEL 29:
That portion of the Southwest Quarter (SW 1/4) of the Southwest. Quarter (SW
1/4) of Section 3, Township 21 South, Range 61 East, M.D.B. & M., described as
follows:
BEGINNING at the Northeast corner (NE Cor.) of Lot Eighteen (18) in Block Four
(4) of Meadows Addition to Las Vegas as shown by map thereof on file in Book 1
of Plats, page 43, in the Office of the County Recorder of Clark County, Nevada;
Thence South 77(degree)36'22" East a distance of 36.88 feet to the Northwest
corner of that certain parcel of land conveyed by Louis Dubois, Et Ux, to Robert
T. Baskin by Deed recorded June 24, 1952 as Document No. 386459, Clark County,
Nevada Records;
Thence South 11(degree)19'29" West along the West line of the said conveyed
parcel a distance of 143.79 feet to the Southwest corner thereof; Thence North
77(degree)11" West a distance of 19.54 feet to a point on the West line of said
Section 3;
Thence North 4(degree)26'30" East along the last mentioned West line a distance
of 145.00 feet to the Point of Beginning.
TOGETHER with that portion of vacated Boston Street as described in Order of
Vacation recorded March. 1, 1996 in Book 960301 as Document No. 00935, of
Official Records.
PARCEL 30:
That portion of the Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4)
of Section 3, Township 21 South, Range 61 East, M.D.B. & M., described as
follows:
COMMENCING at the Northeast corner (NE Cor.) of Lot Eighteen (18) in Block Four
(4) of the Meadows Addition to Las Vegas as shown by map thereof on file in Book
1 of Plats, page 43, in the Office of the County Recorder of Clark County,
Nevada;
Thence South 77(degree)36'22" East along the South line of Boston Street a
distance of 36.88 feet to the True Point of Beginning;
Thence continuing South 77(degree)36'22" East along the said South line a
distance of 153.77 feet to a point on the West line of Fifth Street (100 feet
wide);
Thence South 27(degree)43'12" West along said West line a distance of 149.92
feet to a point; Thence North 77(degree)11" West a distance of 111.43 feet to a
point;
Thence North 11(degree)19'20" East a distance of 143.79 feet to the True Point
of Beginning.
TOGETHER with that portion of vacated Boston Street as described in order of
Vacation recorded march 1, 1996 in Book 960301 as Document No. 00935, of
Official Records.
EXCEPTING THEREFROM that portion as conveyed to the City of Las Vegas by Deed
recorded April 3, 1996 in Book 960403 as Document No. 01195 of Official Records.
The foregoing legal descriptions contained in document recorded May, 2001
in Book 20010503 as Document/Instrument No. 00546.