Exhibit 4.16
Prepared By and Upon INDEXING INSTRUCTIONS:
Recordation Return To:
___ QUARTER(S) [OR BLOCKS ___ OF ___
Brobeck, Phleger & Harrison LLP LOCATED IN], SECTION ___, TOWNSHIP ___,
550 South Hope Street RANGE ____ CITY OF ____________, TUNICA
Los Angeles, CA 90071-2604 COUNTY, MISSISSIPPI
Attention: John Francis Hilson, Esq.
Telephone: (213) 489-4060 ___ QUARTER(S) [OR BLOCKS ___ OF ___
LOCATED IN], SECTION ___, TOWNSHIP ___,
RANGE ____ CITY OF ____________, TUNICA
COUNTY, MISSISSIPPI
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH FINANCING STATEMENT
AND ASSIGNMENT OF RENTS
BARDEN MISSISSIPPI GAMING, LLC,
as Trustor,
JIM B. TOHILL,
as Trustee,
and
FOOTHILL CAPITAL CORPORATION,
as Beneficiary
Dated as of December 6, 2001
SOME OF THE PERSONAL PROPERTY CONSTITUTING A PORTION OF THE
MORTGAGED PROPERTY IS OR IS TO BE AFFIXED TO THE PROPERTIES
DESCRIBED IN EXHIBIT A HERETO
THIS FINANCING STATEMENT IS A FIXTURE FILING, AND IS TO BE FILED FOR
RECORD, AMONG OTHER PLACES, IN THE REAL ESTATE RECORDS
THIS DEED OF TRUST COVERS AFTER-ACQUIRED PROPERTY
THIS DEED OF TRUST SECURES A LINE OF CREDIT TO BE USED FOR BUSINESS OR
COMMERCIAL PURPOSES
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING WITH
ASSIGNMENT OF RENTS (this "Deed of Trust") is made as of the 6TH day of
December, 2001 by Barden Mississippi Gaming, LLC, a Mississippi limited
liability company ("Trustor"), whose principal place of business is located at
163 Madison Avenue, Suite 2000, Detroit, Michigan 48226, in favor of Jim B.
Tohill ("Trustee"), who principal place of business is located at c/o Watkins,
Ludlam Winter & Stennis, P.A., 633 North State Street, Jackson, Mississippi
39202, for the benefit of Foothill Capital Corporation, a California corporation
("Beneficiary"), whose principal place of business is located at One Boston
Plaza, Suite 1800, Boston Massachusetts 02108.
THE MAXIMUM AMOUNT OF PRINCIPAL INDEBTEDNESS TO BE SECURED HEREBY IS UP TO
$15,000,000.00.
R E C I T A L S
A. Pursuant to that certain Loan and Security Agreement,
dated as of December 6, 2001, by and among Majestic Investor Holdings, LLC, a
Delaware limited liability company, Barden Colorado Gaming, LLC, a Colorado
limited liability company, Barden Nevada Gaming, LLC, a Nevada limited liability
company, and Trustor (collectively, the "Borrower"), and Beneficiary,
Beneficiary has agreed to make certain financial accommodations to Borrower.
Such agreement, as it may from time to time be amended, modified, supplemented,
renewed, or restated, is referred to herein as the "Loan Agreement", and the
term "Loan Documents" when used herein has the meaning ascribed thereto in the
Loan Agreement. All other initially capitalized terms set forth in this Deed of
Trust, if not otherwise defined herein, shall have the meanings ascribed to them
in the Loan Agreement.
B. Trustor has also guaranteed certain obligations and
liabilities under the Loan Agreement pursuant to that certain guaranty dated as
of December 6, 2001, made by Trustor in favor of Beneficiary (the "Guaranty").
C. In order to induce the Beneficiary to make certain
financial accommodations to Borrower and pursuant to the Loan Agreement, Trustor
desires to enter into this Deed of Trust to secure the Secured Obligations (as
defined below).
D. The parties acknowledge that certain provisions of
this Deed of Trust may be subject to the laws, rules and regulations of the
Gaming Authority of the State of Mississippi (collectively, the "Applicable
Gaming Laws").
This Deed of Trust secures a line of credit as defined in
Section 89-1-49 of the Mississippi Code Annotated of 1972, as amended, for
commercial purposes to other than a natural person and shall not be extinguished
until the conditions of Section 89-5-73 of the Mississippi Code Annotated of
1972, as amended, are met.
1.
W I T N E S S E T H:
IN CONSIDERATION OF THE FOREGOING RECITALS AND FOR OTHER GOOD
AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, SUBJECT TO APPLICABLE GAMING LAWS, TRUSTOR DOES HEREBY IRREVOCABLY
GRANT, BARGAIN, SELL, TRANSFER, CONVEY, ASSIGN AND WARRANT to Trustee, its
successors and assigns, IN TRUST, WITH POWER OF SALE, for the benefit and
security of Beneficiary, but subject to Permitted Liens, the following (but
excluding in each and every case all Excluded Assets as defined below), whether
now owned or hereafter acquired:
GRANTING CLAUSE ONE
[Land]
All of Trustor's right, title and interest in the real
property, located in the County of Tunica, State of Mississippi, described in
Exhibit A attached hereto and by this reference incorporated herein (the
"Land"), together with all and singular the tenements, hereditaments, rights,
reversions, remainders, development rights, privileges, benefits, easements (in
gross or appurtenant), rights-of-way, gores or strips of land, streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and all
appurtenances whatsoever and claims or demands of Trustor at law or in equity,
in any way belonging, benefitting, relating or appertaining to the Land, the
airspace over the Land, the Improvements (as hereinafter defined), or both, or
which hereinafter shall in any way belong, relate or be appurtenant thereto.
GRANTING CLAUSE TWO
[Improvements]
TOGETHER WITH, any and all structures, buildings, facilities
and improvements of every nature whatsoever now or hereafter on the Land,
including, but not limited to, the Fixtures (as hereinafter defined)
(collectively, the "Improvements") (the Land and Improvements are referred to
collectively as the "Real Property").
For purposes of this Deed of Trust, "Fixtures" means any and
all "fixtures" as such term is defined in Article 9 of the UCC and to the
fullest extent allowed by Applicable Laws, fixtures and all other equipment and
machinery now or at any time hereafter owned by Trustor and located or included
in or on or appurtenant to the Real Property or the Vessel and used in
connection therewith and which are or become so related to the Real Property
encumbered hereby that an interest arises in them under real estate law,
including, without limitation, all docks, piers, barges, vessels, marinas and
other structures
2.
to which boats and vessels may be moored; machinery, equipment (including,
without limitation, pipes, furnaces, conveyors, drums, fire sprinklers and alarm
systems, and air conditioning, heating, refrigerating, electronic monitoring,
stoves, ovens, ranges, dishwashers, disposals, food storage, food processing
(including restaurant fixtures), trash and garbage removal and maintenance
equipment), elevators, office equipment, all built-in tables, wall-beds,
wall-safes, built-in furniture and installation, doorstops, vaults, motors,
dumb-waiters, computers, mirrors, screens, chairs, chaise lounges, hot tubs,
swimming pool heaters, beauty and barber equipment, maintenance supplies used in
connection with the Land or Vessel, mantels, screens, plumbing, bathtubs, sinks,
basins, faucets, all laundry, kitchen, restaurant and athletic equipment,
washers, dryers, planters, desks, sofas, shelves, lockers and cabinets, all
safes, furnishings, appliances (including, without limitation, food warming and
holding equipment, iceboxes, refrigerators, fans, heaters, water heaters and
incinerators), rugs, carpets and other floor coverings, draperies and drapery
rods and brackets, awnings, window shades, venetian blinds, curtains, lamps,
chandeliers and other lighting fixtures, trade fixtures, telephone, television
and other communications equipment, visual and electronic surveillance systems
and transportation systems, all specifically designed installations and
furnishings, all furniture, furnishings and personal property of every nature
whatsoever, and equipment, appliances or other goods for the exclusion of vermin
or insects, or for the collection of dust, refuse or garbage; provided, however,
that Fixtures shall not include Excluded Assets.
GRANTING CLAUSE THREE
[Rents, etc.]
TOGETHER WITH, all rents, income, security or similar deposits
(to the full extent allowed by Applicable Laws), including without limitation,
receipts, issues, royalties, earnings, products or proceeds, profits,
maintenance, license and concession fees and other revenues to which Trustor may
now or hereafter be entitled, including, without limitation, all rights to
payment for hotel room occupancy by hotel guests, which includes any payment or
monies received or to be received in whole or in part whether actual or deemed
to be, for the sale of services or products in connection therewith and/or in
connection with such occupancy,
3.
advance registration fees by hotel guests, tour or junket proceeds and deposits
for conventions and/or party reservations (collectively the "Rents"), subject to
the revocable license hereinafter given to Trustor to collect and apply such
Rents.
GRANTING CLAUSE FOUR
[Leases, Including Deposits and Advance Rentals]
TOGETHER WITH, (a) all estate, right, title and interest of
Trustor in, to and under any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreements, franchise agreements
and all other agreements affecting or covering the Real Property or any portion
thereof now or hereafter existing or entered into, together with all amendments,
extensions and renewals of any of the foregoing; (b) all right, title, claim,
estate and interest of Trustor thereunder, including, without limitation, all
claims of the lessor thereunder, letters of credit, guarantees or security
deposits (to the full extent allowed by Applicable Laws), advance rentals and
any and all deposits or payments of similar nature; and (c) the right to enforce
against any tenants thereunder and otherwise any and all remedies under any of
the foregoing, including Trustor's right to evict from possession any tenant
thereunder or to retain, apply, use, draw upon, pursue, enforce or realize upon
any guaranty thereof; to terminate, modify, or amend any such agreement; to
obtain possession of, use, or occupy, any of the real or personal property
subject to any such agreement; and to enforce or exercise, whether at law or in
equity or by any other means, all provisions of any such agreement and all
obligations of the tenants thereunder based upon (i) any breach by such tenant
thereunder (including any claim that Trustor may have by reason of a
termination, rejection, or disaffirmance of such agreement pursuant to any
Bankruptcy Law), and (ii) the use and occupancy of the premises demised, whether
or not pursuant to the applicable agreement (including any claim for use and
occupancy arising under landlord-tenant law of the State of Mississippi or any
Bankruptcy Law).
GRANTING CLAUSE FIVE
[Options to Purchase, etc.]
TOGETHER WITH, all right, title and interest of Trustor in and
to all options and other rights to purchase or lease the Real Property or any
portion thereof or interest therein, if any, and any greater estate in the Real
Property owned or hereafter acquired by Trustor.
GRANTING CLAUSE SIX
[Personal Property]
TOGETHER WITH, all right, title and interest of Trustor in and
to all Tangible Property and Intangible Property (except, with respect to Gaming
Licenses, as prohibited by Applicable Gaming Laws) now or at any time hereafter
located on or appurtenant to the Real
4.
Property and used or useful in connection with the ownership, management or
operation of the Real Property, including, without limitation, the Personal
Property.
GRANTING CLAUSE SEVEN
[Condemnation Awards, etc.]
TOGETHER WITH, all the estate, interest, right, title, and
other claim or demand, which Trustor now has or may hereafter acquire in any and
all awards, payments or other consideration made for the taking by eminent
domain, or by any. proceeding or purchase in lieu thereof, of the whole or any
part of the Real Property, including, without limitation, any awards, payments
or other consideration resulting from a change of grade of streets and for
severance damages.
GRANTING CLAUSE EIGHT
[Insurance Proceeds]
TOGETHER WITH, all the estate, interest, right, title and
other claim or demand which Trustor now has or may hereafter acquire with
respect to the proceeds of insurance in effect with respect to all or any part
of the Real Property and/or Personal Property, together with all interest
thereon and the right to collect and receive the same.
GRANTING CLAUSE NINE
[Claims for Damages, etc.]
TOGETHER WITH, all the estate, interest, right, title and
other claim or demand which Trustor now has or may hereafter acquire against
anyone with respect to any damage to all or any part of the Real Property,
including, without limitation, damage arising from any defect in or with respect
to the design or construction of all or any part of the Improvements and damage
resulting therefrom.
GRANTING CLAUSE TEN
[Deposits, Advance Payments and Refunds of Insurance, Utilities, etc.]
TOGETHER WITH, all deposits or other security or advance
payments including rental payments made by or on behalf of Trustor to others,
and all refunds made by others to Trustor, with respect to (i) insurance
policies relating to all or any part of the Real Property and/or Personal
Property, (ii) utility service for all or any part of the Real Property, (iii)
cleaning, maintenance, repair, or similar services for all or any part of the
Real Property, (iv) refuse removal or sewer service for all or any part of the
Real Property, (v) rental of equipment, if any, used in the operation,
maintenance or repair by or on behalf of Trustor of all or any part of the
5.
Real Property and/or Personal Property and (vi) parking or similar services or
rights afforded to all or any part of the Real Property.
GRANTING CLAUSE ELEVEN
[Water Rights, etc.]
TOGETHER WITH, all water rights, water stock, water permits
and other rights to the use of water that are now or that may be hereinafter
used in connection with the said Real Property, or any improvements or
appurtenances thereto.
GRANTING CLAUSE TWELVE
[Minerals, etc.]
TOGETHER WITH, all oil and gas and other mineral rights, if
any, in or pertaining to the Land and all royalty, leasehold and other rights of
Trustor pertaining thereto.
GRANTING CLAUSE THIRTEEN
[Accessions, etc.]
TOGETHER WITH, all extensions, improvements, betterments,
renewals, substitutes for and replacements of, and all additions, accessions,
and appurtenances to, any of the foregoing that Trustor may subsequently
acquire, and all conversions of any of the foregoing, Trustor agrees that all
property hereafter acquired by Trustor and required by the Loan Agreement, this
Deed of Trust or any other Loan Document to be subject to the lien and/or
security interests created by this Deed of Trust shall forthwith upon the
acquisition thereof by Trustor be subject to the lien and/or security interests
of this Deed of Trust as if such property were now owned by Trustor and were
specifically described in this Deed of Trust and granted hereby or pursuant
hereto, and the Beneficiary is hereby authorized to receive any and all such
property as and for additional security for the Guaranty Obligations.
GRANTING CLAUSE FOURTEEN
[Vessel]
TOGETHER WITH, the whole of the following named and described
vessel and appurtenances (the "Vessel") to wit:
OFFICIAL
NAME NUMBER TYPE
---- ------ ----
FITZGERALDS TUNICA 262757 Barge
6.
TOGETHER WITH, all of the following now owned or hereafter
acquired by Trustor or in which Trustor has any rights or interest and now or
hereafter located in or on, or attached to, or used or intended to be used or
which are now or may hereafter be appropriated for use on or in connection with
the operation of the Vessel and the business being conducted or which may be
conducted thereon, or in connection with any construction being conducted or
which may be conducted thereon: boilers, engines, machinery, masts, spars,
boats, cables, motors, tools, anchors, chains, booms, cranes, rigs, pumps, pipe,
tanks, tackle, apparel, furniture, fixtures, rigging, supplies, fittings and
gaming machinery, equipment and accessories relating to the Vessel and the
gaming operations now or hereafter conducted thereon, including but not limited
to communication systems, visual and electronic surveillance systems and
transportation systems, tools, utensils, food and beverage, liquor, uniforms,
linens, housekeeping and maintenance supplies, fuel all gaming equipment and
devices, financial equipment, computer equipment, calculators, adding machines,
video games, slot machines and other gaming devices, and any other electronic
equipment of every nature used in connection with the operation of Vessel and
the business conducted thereon, all machinery, equipment, engines, appliances
and fixtures for generating or distributing air, water, heat, electricity,
light, fuel or refrigeration, or for ventilating or sanitary purposes, or for
the exclusion of vermin or insects, or for the removal of dust, refuse or
garbage, all wall-beds, wall safes, built-in furniture and installations,
shelving, lockers, partitions, doorstops, vaults, motors, elevators,
dumb-waiters, awnings, window shades, Venetian blinds, light fixtures, fire
hoses and brackets and boxes for the same, fire sprinklers, alarm, surveillance
and security systems, drapes, drapery rods and brackets, mirrors, mantels,
screens, linoleum, carpets and carpeting, plumbing, bathtubs, sinks, basins,
pipes, faucets, water closets, laundry equipment, washers, dryers, ice-boxes and
heating units, all kitchen and restaurant equipment, including but not limited
to silverware, dishes, menus, cooking utensils, stoves, refrigerators, ovens,
ranges, dishwashers, disposals, water hewn, incinerators, furniture, fixtures
and furnishings, all cocktail lounge supplies, including but not limited to
bars, glassware, bottles and tables and stools or chairs used in connection with
the Vessel, all chaise lounges, hot tubs, swimming pool heaters and equipment,
and all other recreational equipment (computerized and otherwise) including
cards, dice, and gaming chips and tokens, beauty and barber equipment and
maintenance supplies used in connection with the Vessel, all specifically
designed installations and furnishings, and all furniture, furnishings and
personal property of every nature whatsoever, and all extensions, additions,
accessions, improvements, betterments, renewals, substitutions, and replacements
to any of the foregoing, all of which (to the fullest extent permitted by
Applicable Laws) shall be conclusively deemed appurtenances to the Vessel, and
all other appurtenances to the Vessel appertaining or belonging, whether now
owned or hereafter acquired, whether on board or not at any time of
determination, and all additions, improvements and replacements hereafter made
in or to the Vessel and all proceeds of any of the foregoing, including without
limitation, any claim for compensation, purchase price reimbursement or award
for a requisition pursuant to that certain Vessel Mortgage executed by Trustor
of even date herewith (the "Vessel Mortgage") and any charter hire or other
compensation resulting from a requisition pursuant to the Vessel Mortgage.
Trustor and Beneficiary acknowledge that significant structures, improvements,
additions, equipment and other appurtenances may be added to the Vessel after
the execution of this Deed of Trust, and Trustor specifically affirms and agrees
that all such appurtenances to the Vessel shall be subject to this Deed of
Trust.
7.
The entire estate, property and interest hereby conveyed to
Trustee pursuant to Granting Clauses One through Fourteen, inclusive, may
hereafter be referred to as the "Trust Estate."
FOR THE PURPOSE OF SECURING:
A. the due and punctual payment and performance of any
and all present and future obligations and liabilities of Trustor of every type
or description to Beneficiary, arising under or in connection with the Guaranty,
whether for principal of, or premium, if any, or interest under the Loan
Agreement, expenses, indemnities or other amounts (including attorneys' fees and
expenses) (collectively, the "Guaranty Obligations");
B. Payment of all indebtedness and performance of all
"Obligations" (as defined in the Loan Agreement) arising under, related to, or
evidenced by or pursuant to the Loan Agreement;
C. Payment and performance of all "Obligations" (as
defined in the Loan Agreement) arising under, related to, or evidenced by or
pursuant to any other Loan Document;
D. Payment and performance of all obligations under this
Deed of Trust, including payment of all sums expended or advanced by Beneficiary
hereunder, together with interest thereon;
E. all future advances pursuant to the Loan Agreement or
any other of the Loan Documents in each case whether due or not due, direct or
indirect, joint and/or several, absolute or contingent, voluntary or
involuntary, liquidated or unliquidated, determined or undetermined, now or
hereafter existing, renewed or restructured, whether or not from time to time
decreased or extinguished and later increased, created or incurred, whether or
not arising after the commencement of a proceeding under the Bankruptcy Code
(including post-petition interest) and whether or not allowed or allowable as a
claim in any such proceeding; and
F. All renewals, extensions, modifications and
amendments of any of the aforesaid, whether or not any renewal, extension,
modification or amendment agreement is executed in connection therewith (all
obligations and liabilities described herein are collectively referred to herein
as the "Secured Obligations").
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY
COVENANTS AND AGREES AS FOLLOWS: ARTICLE 1.
Section 1.1 Certain Defined Terms. As used herein, the following
terms shall have the following meanings:
8.
"Accounts" has the meaning set forth in Section 9.1.2.
"Applicable Gaming Laws" has the meaning set forth in Recital
D.
"Applicable Laws" shall have the meaning set forth in Section
3.7.
"Bankruptcy Law" means any laws arising from the United States
Bankruptcy Code, as amended, and any applicable State statute dealing with
bankruptcy.
"Beneficiary" has the meaning set forth in the Preamble.
"Chattel Paper" has the meaning set forth in Section 9.1.1.
"Collateral" has the meaning set forth in Section 9.1.
"Default Rate" has the meaning set forth in Section 4.8.1.
"Documents" has the meaning set forth in Section 9.1.9.
"Environmental Claim" shall mean shall mean any claim, action,
cause of action, investigation or notice (written or oral) by any person or
entity alleging potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental response costs,
natural resources damages, property damages, personal injuries, or penalties)
arising out of, based on or resulting from (a) the presence, or release into the
environment, of any Hazardous Material at any location, whether or not owned or
operated by Trustor or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Requirement.
"Environmental Damages" means all claims, judgments, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs and expenses of investigation and defense of any claim, whether or not
such is ultimately defeated, and of any settlement or judgment, of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including, without limitation, reasonable attorneys' fees,
charges and disbursements (including, without limitation, costs of appeal), and
consultants' fees, any of which are actually incurred at any time as a result of
the existence or alleged existence of Hazardous Materials upon, about or beneath
the Real Property or migrating or threatening to migrate to or from the Real
Property, or the existence or alleged existence of a violation of Environmental
Requirements pertaining to the Real Property regardless of whether the existence
of such Hazardous Materials or the violation of Environmental Requirements arose
prior to the present ownership or operation of the Real Property, and including,
without limitation:
(i) damages for personal injury, or injury to
property or natural resources occurring upon or off of the Real Property,
foreseeable or unforeseeable, including, without limitation, lost profits,
consequential damages, the cost of demolition and rebuilding of any improvements
on the Real Property, interest and penalties including, but not limited to,
9.
claims brought by or on behalf of employees of Trustor, with respect to which
Trustor waives, for the benefit of Beneficiary only, any immunity to which it
may be entitled under any industrial or workers' compensation laws;
(ii) reasonable fees actually incurred for the
services of attorneys, consultants, contractors, experts, laboratories and all
other costs incurred in connection with the investigation or remediation of such
Hazardous Materials or violation of Environmental Requirements including, but
not limited to, the preparation of any feasibility studies or reports or the
performance of any cleanup, remedial, removal, abatement containment, closure,
restoration or monitoring work required by any federal, state or local
governmental agency or political subdivision, or reasonably necessary to make
full economic use of the Real Property or any other property or otherwise
expended in connection with such conditions, and including, without limitation,
any reasonable attorneys' fees, charges and disbursements (including, without
limitation, costs of appeal) actually incurred in enforcing this Deed of Trust
or collecting any sums due hereunder, and
(iii) liability to any Person to indemnify such
Person for actual costs incurred in good faith in connection with the items
referenced in subparagraphs (i) and (ii) hereof.
"Environmental Requirements" means applicable present and
future statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals, plans, authorizations, concessions, franchises and similar
items, of all a governmental agencies, departments, commissions, boards, bureaus
or instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
injunctions, judgments and orders relating to the environment, including,
without limitation:
(i) all requirements, including, but not limited
to, those relating or pertaining to (A) record keeping, reporting, disclosing,
notifying, licensing, permitting, investigation and remediation of emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemical substances, pollutants, contaminants or hazardous or toxic substances,
materials or wastes whether solid, liquid or gaseous in nature, into the
environment (including, without limitation, ambient air, surface water,
groundwater or land surface or subsurface strata), (B) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal
transport or handling of chemical substances, materials or wastes, whether
solid, liquid or gaseous in nature, including without limitation, Hazardous
Materials or (C) underground storage tanks and related piping, and emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemical substances, pollutants, contaminants or hazardous or toxic substances,
materials or wastes whether solid, liquid or gaseous in nature therefrom; and
(ii) all other requirements pertaining to the
preservation or protection of the environment and the mitigation of adverse
effects thereon and the health and safety of employees or the public with
respect to Hazardous Materials.
10.
"Equipment" has the meaning set forth in Section 9.1.7.
"Event of Default" shall have the meaning set forth in Section
8.
"Excluded Assets" has the meaning set forth in the Loan
Agreement.
"Fixtures" has the meaning set forth in Granting Clause Two.
"Gaming Licenses" means every material license, franchise or
other approval or authorization required to own, lease, operate or otherwise
conduct gaming in any jurisdiction in which Trustor or any of its subsidiaries
conducts or proposes in good faith to conduct gaming business, including any
applicable liquor licenses.
"Governmental Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of the United States of America or foreign government, any state,
province or any city or other political subdivision, whether now or hereafter
existing, or any officer or official thereof, including without limitation, the
Nevada Gaming Commission, the Nevada State Gaming Control Board, the Colorado
Limited Gaming Control Commission, the Mississippi Gaming Commission and any
other agency with authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by Trustor or any of its subsidiaries.
"Guaranty" has the meaning set forth in Recital B.
"Guaranty Obligations" has the meaning set forth hereinabove.
"General Intangibles" has the meaning set forth in Section
9.1.10.
"Hazardous Materials" means any chemical, material or
substance:
(i) the presence of which requires investigation
or remediation under any federal, state or local law, statute, code, regulation,
ordinance, order, action or policy; or
(ii) which is or becomes defined as or included
in the definition of "hazardous substances," "pollutants," " contaminants,"
"hazardous wastes," "hazardous materials," "extremely hazardous waste,"
"restricted hazardous waste" or "toxic substances" or words of similar import
under any applicable local state or federal law or under regulations adopted or
publications promulgated pursuant thereto, including, but not limited to, any
such laws or regulations promulgated by Governmental Authorities of the State of
Mississippi; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.; the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et
seq.; the Resource Conservation and Recovery Act as amended, 42 U.S.C. Section
6901, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
Section 1251, et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601,
et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300(f)-300(j) - 10; or
the Clean Air Act, 42 U.S.C. Section 7401, et seq.; or
11.
(iii) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous and is or a becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United States,
any state of the United States, or any political subdivision thereof
("Governmental Authority"); or
(iv) the presence of which on the Real Property
causes or threatens to pose a hazard to the Real Property or to the health or
safety of Persons on or about the Real Property; or
(v) without limitation, which contains gasoline,
crude oil, diesel fuel or other petroleum hydrocarbons in violation of
applicable Environmental Requirements; or
(vi) without limitation, which contains "PCBs" (as
hereinafter defined) or asbestos or urea formaldehyde foam insulation or radon
gas.
"Impositions" means any and all (i) real estate and personal
property taxes and other taxes and assessments, water and sewer rates and
charges levied or assessed upon or with respect to the Real Property and any and
all other governmental charges (including any penalties and other charges
imposed by any Gaming Authority) and any interest or costs or penalties with
respect thereto, in each case whether general, special ordinary or
extraordinary, foreseen or unforeseen, of any kind and nature whatsoever that at
any time prior to or after the execution hereof may be assessed, levied,
imposed, or become a lien upon the Real Property or the Rents, but excluding
taxes on Trustor's income or operating revenues; (ii) charges for any easement
or agreement maintained for the benefit of the Real Property and (iii) other
charges, expenses, payments or assessments of any nature, if any, which are or
may be assessed, levied, imposed or become a lien upon the Real Property or the
Rents, including mechanics and other Liens permitted by Section 7.2 of the Loan
Agreement.
"Impound Account" means the account that Trustor may be
required to maintain pursuant to Section 4.6.2. of this Deed of Trust for the
deposit of amounts required to pay Impositions and insurance premiums.
"Improvements" has the meaning set forth in Granting Clause
Two.
"Indemnitees" has the meaning set forth in Section 11.2.7.
"Intangible Property" means any and all intangible personal
property, including, without limitation, (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the
Land, the Vessel or the Improvements, including, without limitation, the name
"Fitzgeralds Tunica" and any variations thereof, together with the goodwill
associated therewith, and all names, logos, and designs used by Trustor, or in
connection with the Land or the Vessel or the Improvements or in which Trustor
has rights, with the exclusive
12.
right to use such names, logos and designs wherever they are now or hereafter
used in connection with the Land or the Vessel or the Improvements, and any and
all other trade names, or service marks, whether or not registered, now or
hereafter used in the operation of the Land or the Vessel or the Improvements,
including, without limitation, any interest as a licensee or franchisee and, in
each case, together with the goodwill associated therewith; (b) maps, plans,
specifications, surveys, studies, tests, reports, data and drawings relating to
the development of the Land, the Vessel or the Improvements and the construction
of the Improvements, including, without limitation, all marketing plans,
feasibility studies, soils tests, design contracts and all contracts and
agreements of Trustor relating thereto and all architectural, structural,
mechanical and engineering plans and specifications, studies, data and drawings
prepared for or relating to the development of the Land, the Vessel or the Real
Property or the construction, renovation or restoration of any of the
Improvements or the extraction of minerals, sand, gravel or other valuable
substances from the Land; (c) any and all books, records, customer lists
(including lists or information derived from or related to the Player Tracking
System described within the definition of "Tangible Property"), concession
agreements, supply or service contracts, licenses, permits, governmental
approvals (to the extent such licenses, permits and approvals may be pledged
under Applicable Laws), signs, goodwill casino and hotel credit and charge
records, supplier lists, checking account, safe deposit boxes (excluding the
contents of such deposit boxes owned by Persons other than Trustor and its
Subsidiaries), cash, instruments, Chattel Papers, documents, unearned premiums,
deposits, refunds, including but not limited to income tax refunds, prepaid
expenses, rebates, tax and insurance escrow and impound accounts, if any,
actions and rights in action, and all other claims, and all other contract
rights and general intangibles resulting from or used in connection with the
operation of the Trust Estate or the Vessel and in which Trustor now or Trustor
now or hereafter has rights; (d) all of Trustor's documents, instruments,
contract rights, and general intangibles including, without limitation, all
insurance policies, permits, licenses, franchises and agreements required for
the use, occupancy or operation of the Land, the Vessel or any of the
Improvements (to the extent such licenses, permits and approvals are not
prohibited from being pledged under Applicable Laws); (e) general intangibles,
vacation license resort agreements or other time share license or right to use
agreements with respect to the Land, the Vessel, the Improvements and/or the
business being conducted thereon, including, without limitation, all rents,
issues, profits, income and maintenance fees resulting therefrom; whether any of
the foregoing is now owned or hereafter acquired; (f) to the extent permitted by
Applicable Laws, any and all licenses, permits, variances, special permits,
franchises, certificates, rulings, certifications, validations, exemptions,
filings, registrations, authorizations, consents, approvals, waivers, orders,
rights and agreements including options, option rights contract rights) now or
hereafter obtained by Trustor from any Governmental Authority having or claiming
jurisdiction over the Land, the Vessel, the Tangible Property, the Real Property
or any other element of the Trust Estate or providing access thereto, or the
operation of any business on, at, or from the Land or the Vessel, including,
without limitation, any Gaming Licenses and (g) any and all products and
proceeds derived or to be derived therefrom, including without limitation, any
and all present and future accounts, contract rights, chattel paper,
instruments, and documents that may be derived from the sale, lease or other
disposition of any of the foregoing, and any rights of Trustor to collect or
enforce payment thereof, as well as enforce any guaranties of the foregoing and
security therefor.
13.
"Inventory" has the meaning set forth in Section 9.1.6.
"Land" has the meaning set forth in Granting Clause One.
"Leases" means any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreements and all other
agreements affecting or covering the Real Property or any portion thereof now or
hereafter existing or entered into, together with all amendments, extensions and
renewals of any of the foregoing.
"Liens" means any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under Applicable Laws (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the applicable UCC (or equivalent
statutes) of any jurisdiction).
"Loan Documents" shall mean the Loan Agreement, Guaranty,
Letters of Credit, and any and all other instruments, documents and other
agreements now existing or hereinafter entered into evidencing, curing,
guaranteeing or otherwise relating to the Secured Obligations.
"PCBs" means polychlorinated biphenyls.
"Permitted Liens" shall have the meaning set forth in the Loan
Agreement.
"Personal Property" means the Intangible Property and the
Tangible Property.
"Proceeds" has the meaning" set forth in Section 9.1.22.
"Public Waters" means any river, lake, stream, sea, ocean,
gulf, bay or other public body of water.
"Real Property" has the meaning set forth in Granting Clause
Two.
"Receiver" means any trustee, receiver, custodian, fiscal
agent, liquidator or similar officer.
"Rents" has the meaning set forth in Granting Clause Three.
"Secured Obligations" shall have the meaning set forth
hereinabove.
"Tangible Property" means any and all tangible personal
property, including, without limitation, all goods, equipment, supplies,
building and other materials of every nature whatsoever and all other tangible
personal property constituting a part or portion of the Real Property and/or
used in the operation of any hotel, casino, restaurant, store, parking facility,
special events arena, theme park, and any other commercial operations on the
Real Property or the Vessel, including but not limited to Inventory,
communication systems, visual and electronic
14.
surveillance systems and transportation systems and not constituting a part of
the real property subject to the real property lien of this Deed of Trust and
including all property and materials stored on all or any portion of the Real
Property or the Vessel in which Trustor has an interest and all tools, utensils,
food and beverage, liquor, uniforms, linens, housekeeping and maintenance
supplies, vehicles, fuel advertising and promotional material, blueprints,
surveys, plans and other documents relating to the Land, the Improvements or the
Vessel, and all construction materials and all Fixtures, including, but not
limited to, all gaming equipment and devices which are used in connection with
the operation of the Real Property or the Vessel and those items of Fixtures
which are purchased or leased by Trustor, machinery and any other item of
personal property in which Trustor now or hereafter owns or acquires an interest
or right, and which are used or useful in the construction, operation, use and
occupancy of the Real Property, to the extent permitted by the applicable
contract or Applicable Laws, all financial equipment, computer equipment, player
tracking system (including all computer hardware, operating software programs
and all right, title and interest in and to any applicable license therefor)
(the "Player Tracking System"), calculators, adding machines, video game and
slot machines, and any other electronic equipment of every nature used or
located on any part of the Real Property or the Vessel, and all present and
future right, title and interest of Trustor in and to any casino operator's
license agreement or sublease agreement used in connection with the Real
Property or the Vessel, along with any and all products and proceeds derived or
to be derived therefrom, including without limitation, any and all present and
future accounts, contract rights, chattel paper, instruments, and documents that
may be derived from the sale, lease or other disposition of any of the
foregoing, and any rights of Trustor to collect or enforce payment thereof, as
well as enforce any guaranties of the foregoing and security therefor.
"Title Policy" means the title insurance policy or policies in
favor of Beneficiary insuring the Lien of this Deed of Trust.
"Trust Estate" has the meaning set forth hereinabove.
"UCC" means the Uniform Commercial Code (as amended from time
to time) of the State of California.
"Vessel" has the meaning set forth in Granting Clause
Fourteen.
Section 1.2 Related Matters.
1.2.1 Terms Used in the UCC. Unless the context clearly
otherwise requires, all lower case terms used in Section 9 of this Deed of Trust
and not otherwise defined herein that are used or defined in Article 9 (or any
equivalent subpart) of the UCC have the same meanings herein.
1.2.2 Construction. Unless the context of this Deed of
Trust clearly requires otherwise, references to the plural include the singular,
the singular includes the plural, the part includes the whole, and "including"
is not limiting. The words "hereof," "herein," "hereby," "hereunder" and similar
terms in this Deed of Trust refer to this Deed of Trust as a whole
15.
including the Preamble, the Recitals and all Schedules and Exhibits, but subject
to Section 1.4 of the Loan Agreement) and not to any particular provision of
this Deed of Trust. Article, section, subsection, exhibit, recital, preamble and
schedule references in this Deed of Trust are to this Deed of Trust unless
otherwise specified. References in this Deed of Trust to any agreement, other
document or law "as amended" or "as may be amended from time to time," or to
amendments of any document or law, shall include any amendments, supplements,
replacements, renewals or other modifications.
1.2.3 Determinations. Any determination or calculation
contemplated by this Deed of Trust that is made by Beneficiary shall be final
and conclusive and binding upon the Trustor, in the absence of manifest error.
References in this Deed of Trust to "determination" by Beneficiary include good
faith estimates (in the case of quantitative determinations) and good faith
beliefs (in the case of qualitative determinations). All references herein to
"discretion" of Beneficiary (or terms of similar import) shall mean "absolute
and sole discretion." All consents and other actions of Beneficiary contemplated
by this Deed of Trust may be given, taken, withheld or not taken in
Beneficiary's discretion (whether or not so expressed), except as otherwise
expressly provided herein. No approval or consent of Beneficiary shall be
effective unless the express written approval or consent of Beneficiary is
received by Trustor.
1.2.4 Governing Law. This Deed of Trust shall be governed
by, and construed in accordance with, the laws (other than the rules regarding
conflicts of laws) of the State of California, except that the provisions hereof
relating be the creation, perfection and enforcement of the lien and security
interest in that portion of the Trust Estate which is real property or fixtures
shall be governed by the laws of the State of Mississippi.
1.2.5 Headings. The Article and Section headings being used
in this Deed of Trust are for convenience of reference only and shall not affect
the construction hereof.
1.2.6 Severability. If any provision of this Deed of Trust
or any Lien or other right hereunder shall be held to be invalid, illegal or
unenforceable under Applicable Law in any jurisdiction, such provision, Lien or
other right shall be ineffective only to the extent of such invalidity,
illegality or unenforceability, which shall not affect any other provisions
herein or any other Lien or right granted hereby or the validity, legality or
enforceability of such provision, Lien or right in any other jurisdiction. 1.2.7
Exhibits and Schedules. All of the exhibits and schedules attached to this Deed
of Trust shall be deemed incorporated herein by reference.
ARTICLE 2.
[RESERVED]
16.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor hereby represents and warrants to Beneficiary and
Trustee that:
Section 3.1 Corporate Existence. Trustor (a) is a limited
liability company duly formed, validly existing and in good standing under the
laws of the jurisdiction in which it is formed, and (b) has the power and
authority to own its property and assets and to transact the business in which
it is engaged or presently proposes to engage, and (c) is duly qualified and is
authorized to do business and is in good standing as a foreign limited liability
company in every jurisdiction in which it owns or leases real property or in
which the nature of its business requires it to be so qualified.
Section 3.2 Authorization; Approvals. The execution, delivery and
performance by Trustor of this Deed of Trust are within Trustor's limited
liability company powers and authority, have been duly authorized by all
necessary limited liability company action, and do not contravene (a) Trustor's
certificate of formation, operating agreement or limited liability company
agreement or (b) any law or any contractual restriction binding on or affecting
Trustor or the Real Property. All authorizations or approvals or other actions
by, or notice to or filing with, any Governmental Authority required for the due
execution, delivery and performance by Trustor of this Deed of Trust have been
duly obtained and are in full force and effect.
Section 3.3 Enforceability. This Deed of Trust has been duly
executed and delivered by Trustor and is the legal, valid and binding obligation
of Trustor, enforceable against Trustor in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally and general principles of equity.
Section 3.4 Validity and Perfection of Security Interests. The
liens and security interests in the Trust Estate created in accordance with the
terms hereof and pursuant to the terms of the other Loan Documents executed by
Trustor constitute valid security interests, and upon recordation of this Deed
of Trust in the appropriate office in Tunica County, Mississippi, the security
interests granted to Beneficiary hereunder will constitute perfected security
interests therein superior and prior to all Liens, rights or claims of all other
Persons other than Permitted Liens.
Section 3.5 Title To and Right To Use Assets. Trustor has good
and marketable fee simple title in the Land, and is the legal and beneficial
owner of the remainder of the Trust Estate (and as to the Trust Estate whether
now existing or hereafter acquired, Trustor will continue to own each item
thereof except to the extent Trustor disposes of the same pursuant to the Loan
Agreement), free and clear of all Liens except Permitted Liens. Trustor has the
right to hold, occupy and enjoy its interest in the Trust Estate subject to the
terms of the Gaming Licenses and subject to the Permitted Liens, and has valid
right, full power and legal authority, subject to Applicable Gaming Laws, to
mortgage and pledge the same as provided herein, and Trustor shall
17.
defend the Trust Estate against all claims and demands of all Persons at any
time claiming the same or any interest therein adverse to Beneficiary (except
for Permitted Liens) and Beneficiary may, subject to Applicable Gaming Laws, at
all times peaceably and quietly enter upon, hold, occupy and enjoy the entire
Trust Estate in accordance with the terms hereof.
Section 3.6 Non-Contravention. Neither the execution, delivery or
performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any Governmental Authority,
or (iii) result in or require the creation or imposition of (or the obligation
to create or impose) any Lien (other than Permitted Liens and the Lien
contemplated hereby or by any other Loan Document), upon or with respect to any
of the property or assets now owned or hereafter acquired by Trustor.
Section 3.7 Contracts. Each material contract which is a part of
the Trust Estate (each, a "Contract"), (i) is the genuine, legal valid, and
binding obligation of Trustor, (ii) is enforceable against Trustor in accordance
with its terms, (iii) is in full force and effect and is, to Trustor's best
knowledge, not subject to any setoffs defenses, overdue taxes, counterclaims or
other claims, nor have any of the foregoing been asserted or alleged as to any
Contract, and (iv) is, in all material respects, in compliance with all
applicable laws, whether federal, state, local or foreign, including, without
limitation, Applicable Gaming Laws ("Applicable Laws"). Neither Trustor nor, to
the best knowledge of Trustor, any other party to any Contract is in material
default in the performance or observance of any of the terms thereof. No party
to any Contract is the United States government or an instrumentality thereof.
Section 3.8 Leases. Trustor has delivered to Beneficiary true,
correct and complete copies of all Leases, including all amendments thereof and
modifications thereto. Each Lease (i) is the genuine, legal, valid and binding
obligation of Trustor, (ii) is enforceable against Trustor and, to the best
knowledge of Trustor, the other party thereto, in accordance with its terms,
(iii) to the best knowledge of Trustor is in full force and effect and is not
subject to any setoffs, defenses, taxes, counterclaims or other claims, nor have
any of the foregoing been asserted or alleged as to any Lease, and (iv) to the
best knowledge of Trustor is in compliance with all Applicable Laws in all
material respects.
Section 3.9 No Other Real Property. The Trust Estate, together
with the other property upon which a security interest is being granted to
Beneficiary pursuant to the terms of the Loan Documents, constitutes all of the
property (whether owned, leased or otherwise) currently used by Trustor in
connection with the operation of the Fitzgeralds Casino Hotel located on the
Land, other than Excluded Assets and the property upon which the granting of the
security interest or lien is not allowed by Applicable Laws.
Section 3.10 Compliance with Laws. To the best knowledge of
Trustor, except as otherwise disclosed in writing to Beneficiary, the Trust
Estate and the proposed and actual use
18.
thereof comply in all material respects with all Applicable Laws, and there is
no proceeding pending or, to the best knowledge of Trustor, threatened before
any court, quasi-judicial body, Governmental Authority relating to the validity
of the Loan Documents or the proposed or actual use of the Trust Estate.
Section 3.11 Real Property Use; Mechanics' Liens. The Real
Property is not used principally or primarily for agricultural or grazing
purposes. All costs for labor and material for the removal, construction and
renovation of the Improvements (including, without limitation, any additions and
alterations thereto) have been paid in full or will be paid in accordance with
Section 4.15.
Section 3.12 Condemnation. There are no pending or, to the best
knowledge of Trustor, threatened condemnation or eminent domain proceedings
against the Trust Estate or any part thereof.
Section 3.13 Litigation. Except as disclosed in writing to
Beneficiary prior to the date hereof, there are no pending or, to the best
knowledge of Trustor, threatened, actions, claims, proceedings, investigations,
suits or proceedings before any court, Governmental Authority or arbitrator
against Trustor, the Trust Estate or any part thereof.
Section 3.14 Construction of Improvements. All Improvements have
been and will be constructed in all material respects in accordance with
Applicable Laws and all requirements of Governmental Authorities and
governmental approvals. Except as disclosed in writing to Beneficiary prior to
the date hereof, to the best knowledge of Trustor, the Improvements (a) are free
from latent and patent defects that would have a material adverse effect on the
value of the Improvements and do not materially and adversely affect the use and
operation of the Improvements or Real Property, and (b) do not require any
material repairs, reconstruction or replacement on the date hereof.
ARTICLE 4.
AFFIRMATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as
follows:
Section 4.1 Secured Obligations of Trustor. Trustor will perform,
observe and comply with its Secured Obligations arising under this Deed of Trust
and shall continue to be liable for the performance of its Secured Obligations
arising under this Deed of Trust until discharged in full, notwithstanding any
actions of partial foreclosure that may be brought hereunder to recover any
amount or amounts expended by Beneficiary on behalf of Trustor in order to cure
any of Trustor's defaults or to satisfy any of Trustor's obligations or
covenants under any agreement relating to the Trust Estate and to which Trustor
is a party or by which the Trust Estate is bound.
Section 4.2 Compliance with Law; Maintenance of Approvals. Except
as expressly permitted by the Loan Agreement, Trustor shall (i) comply in all
material respects with all
19.
requirements of law applicable to the ownership, operation, use and occupancy of
all or any portion of the Trust Estate, whether or not such compliance requires
work or remedial measures that are ordinary or extraordinary, foreseen or
unforeseen, or structural or nonstructural, and (ii) maintain in full force and
effect all authorizations, approvals or other actions, including without
limitation, Gaming Licenses and liquor licenses and permits, which are necessary
for the performance of Trustor's obligations pursuant to this Deed of Trust or
for the business conducted by Trustor on the Real Property.
Section 4.3 Other Reports. Trustor shall provide from time to
time such additional information regarding Trustor or the Trust Estate as are
required under the Loan Agreement or as Beneficiary may reasonably request.
Section 4.4 Insurance. The Trustor, at its sole cost and expense,
shall provide, maintain and keep in force the insurance required by Section 6.8
of the Loan Agreement (the "Insurance Policies").
Section 4.5 Waste and Repair. Except as expressly permitted by
the Loan Agreement, Trustor shall at all times cause the Trust Estate to be
maintained in normal working order and condition (reasonable wear and tear
excepted). Trustor shall not suffer any waste of the Real Property or do or
permit to be done thereon anything that may in any way impair the Real Property
nor impair the security of this Deed of Trust. Trustor shall not abandon the
Real Property nor leave the Real Property unprotected or deserted.
Section 4.6 Impositions; Impounds; Taxes; Capital Costs.
4.6.1 Impositions Affecting the Real Property. Trustor
shall pay when due all Impositions (or currently payable installments thereof)
that are or that may become a lien on the Real Property or are assessed against
the Real Property or the Rents; provided, however, that Trustor may, at its sole
cost and expense, contest the amount or validity or application of any such
Impositions by appropriate legal proceedings promptly initiated and conducted in
good faith and with due diligence; provided that (i) neither the Real Property
nor any part thereof will be in danger of being sold, forfeited, terminated,
canceled, or lost as a result of such contest, and (ii) except in the case of a
Lien junior to the Lien of this Deed of Trust, Trustor shall have posted such
bond or furnished such other security as may be reasonably required by
Beneficiary or as required by Applicable Laws to release such Lien.
4.6.2 Impounds; Impound Account. Upon the occurrence and
during the continuance of an Event of Default and at the request of Beneficiary,
Trustor will pay to Beneficiary monthly an amount equal to one-twelfth (1/12th)
of the annual cost (or such greater amount as may be reasonably necessary for
Beneficiary to have on hand sufficient funds to pay the next installment prior
to delinquency) of Impositions on the Real Property (but only those Impositions
defined in clause (i) of the definition of "Impositions"), together with an
amount equal to the premium for hazard and other required insurance in order to
accumulate with Beneficiary sufficient funds to pay such Impositions and
premiums at least thirty (30) days prior to their respective due dates. Such
funds shall be held by Beneficiary on a commingled basis and
20.
shall not bear interest. Said accumulated funds shall be paid and applied by
Beneficiary with respect to such Impositions and insurance premiums as and when
due.
Section 4.7 Further Assurances. Trustor shall, at its own
expense, perform such acts as may be necessary, or that Beneficiary may request
at any time, to execute, acknowledge and deliver all such additional papers and
instruments (including, without limitation, a declaration of no setoff) and all
such further assurances of title and will do or cause to be done all further
acts and things as may be proper or reasonably necessary to carry out the
purpose hereof and to subject to the Liens hereof any property intended by the
terms hereof to be covered thereby and any renewals, additions, substitutions,
replacements or betterments thereto.
Section 4.8 Waiver of Offsets.
4.8.1 In the event any tax, stamp tax, assessment water
rate, sewer rate, insurance premium, repair, rent charge, debt, claim,
inspection, Imposition or lien having priority over the Lien of this Deed of
Trust, or in the event any other amount required to be paid by Trustor hereunder
shall remain unpaid and Trustor is not contesting such amount pursuant to the
terms hereof or the Loan Agreement, Beneficiary shall have the right to pay such
amount and shall have the right to declare immediately due and payable any such
amount so paid. Any amount so paid by Beneficiary shall bear interest at the
default interest rate specified in Section 2.6(c) of the Loan Agreement
("Default Rate") from the date of payment by Beneficiary, shall constitute an
additional Secured Obligation secured hereby, prior to any right, title or
interest in or claim upon the Trust Estate attaching or accruing subsequent to
the Lien of this Deed of Trust shall be secured by this Deed of Trust and shall
be payable by Trustor to Beneficiary within thirty (30) days after receipt by
Trustor of written demand.
4.8.2 Except as otherwise provided herein, in the Loan
Agreement or in the other Loan Documents, all sums payable by Trustor hereunder
or under the other Loan Documents shall be paid without notice, demand,
counterclaim, setoff, deduction or defense and without abatement, suspension,
deferment, diminution or reduction, and the obligations and liabilities of
Trustor hereunder shall in no way be released, discharged or otherwise affected
by reason of (i) any damage to or destruction of or any condemnation or similar
taking of the Trust Estate or any part thereof; (ii) any restriction or
prevention of or interference with any use of the Trust Estate or any part
thereof; (iii) any title defect or encumbrance or any eviction from the Real
Property or the Improvements or any part thereof by title paramount or
otherwise; (iv) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Beneficiary, or any action taken with respect to this Deed of Trust by any
trustee or receiver of Beneficiary, or by any court in any such proceeding; (v)
any claim which Trustor has or might have against Beneficiary; (vi) any default
or failure on the part of Beneficiary to perform or comply with any of the terms
hereof or of any other agreement with Trustor; or (vii) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing; whether or not
Trustor shall have notice or knowledge of any of the foregoing. Trustor waives
all rights now or hereafter by statute or otherwise to any abatement,
suspension, deferment, diminution or reduction of any sum secured hereby and
payable by Trustor.
21.
Section 4.9 Litigation. Trustor will, promptly upon obtaining
actual knowledge thereof, give notice in writing to Beneficiary of any
litigation commenced that is likely to have a material adverse effect on the
Real Property or the Liens created hereby other than unlawful detainer
proceedings brought by Trustor in connection with the Leases.
Section 4.10 Certain Reports. Trustor will, promptly and in any
event within fifteen (15) days after actual receipt by Trustor thereof, deliver
to Beneficiary a copy of any written notice or citation concerning any actual,
alleged or suspected violation of any Environmental Requirements or liability of
Trustor for Environmental Damages in connection with the Real Property or past
or present activities of any Person thereon.
Section 4.11 Tax Receipts. Subject to the provisions of Section
4.6 hereof, Trustor shall provide to Beneficiary, within thirty (30) days after
demand made therefor, bills (which shall be receipted from and after the date
receipted bills are obtainable) showing the payment to the extent then, due of
all taxes, assessments including those payable in periodic installments), water
rates, sewer rates, and/or any other Imposition that have become a lien (other
than an inchoate lien) upon the Trust Estate.
Section 4.12 FIRPTA Affidavit. Trustor hereby represents and
warrants to Beneficiary under penalty of perjury that:
(i) Trustor's U.S. Taxpayer Identification Number is
62-1868783;
(ii) Trustor's business address is set forth in the
preamble hereto; and
(iii) Trustor is not a "foreign person" within the meaning
of Sections 1445 and 7701 of the Code (i.e., Trustor is not a nonresident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined in the Code and regulations promulgated thereunder).
Trustor agrees to indemnify, defend, protect and hold Beneficiary and
Beneficiary's agents harmless of, from and against any and all loss, liability,
costs, damages, claims or causes of action including reasonable attorneys' fees,
costs and expenses which may be actually incurred by Beneficiary or
Beneficiary's agents by reason of any failure of any representation or warranty
made by Trustor in this Section 4.12 to be true and correct in all respects,
including, but not limited to, any liability for failure to withhold any amount
required under Code Section 1445 in the event of foreclosure or other transfer
of the Real Property.
Section 4.13 Preservation of Contractual Rights. Except as
otherwise expressly permitted by the Loan Agreement Trustor shall, prior to
delinquency, default or forfeiture, perform all material obligations and satisfy
all material conditions required on its part to be satisfied to preserve its
rights and privileges under any contract, lease, license, permit or other
authorization (a) under which it holds any Tangible Property, or (b) which
constitutes part of the Intangible Property.
22.
Section 4.14 Tax Service Contract. At any time after the
occurrence of an Event of Default (whether or not such Event of Default is
cured), at the request of Beneficiary and at Trustor's and/or its permitted
successor's sole cost and expense, Beneficiary shall be furnished a tax service
contract in form satisfactory to Beneficiary issued by a tax reporting agency
satisfactory to Beneficiary which contract shall remain in force until
indefeasible discharge in full of the Secured Obligations.
Section 4.15 Liens. Trustor shall pay and promptly discharge, at
Trustor's cost and expense, all Liens upon the Trust Estate, or any part thereof
or interest therein other than the Permitted Liens. Trustor shall have the right
to contest in good faith the validity of any such Lien, provided Trustor shall
first post such bond or furnish such other security as may be reasonably
required by Beneficiary or as required by Applicable Law to release such Lien,
and provided, however, that Trustor shall thereafter diligently proceed to cause
such Lien to be removed and discharged. If Trustor shall fail to so diligently
proceed or to discharge any such Lien, then, upon the occurrence and continuance
of an Event of Default (unless the Real Property is in danger of being sold,
forfeited, terminated, canceled or lost as a result of such contest, in which
case, Beneficiary may act in the absence of an Event of Default) and in addition
to any other right or remedy of Beneficiary, Beneficiary may, but shall not be
obligated to, discharge the same, either by paying the amount claimed to be due,
or by procuring the discharge of such Lien by depositing in court a bond for the
amount claimed or otherwise giving security for such Lien, or in such manner as
is or may be prescribed by law. Any amount so paid by Beneficiary shall bear
interest at the Default Rate from the date of payment by Beneficiary, shall
constitute an additional Secured Obligation secured hereby, prior to any right,
title or interest in or claim upon the Trust Estate attaching or accruing
subsequent to the Lien of this Deed of Trust, shall be secured by this Deed of
Trust and shall be payable by Trustor to Beneficiary upon demand.
Section 4.16 Inspection. Trustor shall permit Beneficiary, upon 24
hours' prior notice, to enter upon and inspect, during normal business hours,
the Real Property and the construction and operation thereof for such purposes
reasonably deemed necessary by Beneficiary, it being agreed by Trustor that
Beneficiary's good faith belief of the existence of a past or present release or
threatened release of any Hazardous Material into, onto, beneath or from the
Real Property shall be conclusively deemed reasonable; provided, however, that
no such prior notice shall be necessary and such inspection may occur at any
time if (l) Beneficiary reasonably believes that an emergency exists or is
imminent or (ii) the giving or delivery of such notice is prohibited or stayed
by Applicable Laws.
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ARTICLE 5.
[RESERVED]
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as
follows:
Section 6.1 Restrictive Uses. Trustor covenants not to suffer any
Liens against the Trust Estate (other than Permitted Liens).
Section 6.2 Transferability.
6.2.1 Trustor shall not suffer or permit any sale,
conveyance, mortgage, pledge, hypothecation, encumbrance, lease, assignment or
other transfer of the Trust Estate or any portion thereof or any interest
therein without in each instance obtaining the prior written consent of
Beneficiary, except as permitted under the Loan Agreement.
6.2.2 Trustor shall have the right to grant easements to
Tunica County, Mississippi (or its designee) as required by that certain
Agreement for the Sale and Purchase of Real Estate, dated as of July 2, 2001, by
and between Fitzgerald's Mississippi, Inc., and Tunica County, Mississippi (the
"Grant"), provided that all of the conditions set forth below have been
satisfied in connection with such Grant:
6.2.2.1 Beneficiary shall have received from Trustor
written notice ("Notice") of such proposed Grant;
6.2.2.2 the Grant shall not materially and adversely
affect the operation or use of the Real Property or materially and adversely
affect the value of the Real Property;
6.2.2.3 no Event of Default shall have occurred and
be continuing as of the date of the Notice or the date of such Grant;
6.2.2.4 such Grant is not otherwise prohibited by
the Loan Agreement;
6.2.2.5 Trustor, at its sole cost and expense, shall
have delivered to Beneficiary (a) one or more endorsements to the Title Policy
insuring that, after giving effect to such Grant, (i) the Lien created hereby
and insured thereunder is a first priority Lien on the respective remaining
portion of the Property subject only to the Permitted Liens applicable to the
remaining Property, and (ii) that the Title Policy (including the access
coverage thereunder) is in
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full force and effect and unaffected by such Grant (except as contemplated by
this Section 6.2.2); (b) a fully executed copy of the easement agreements
executed by Trustor with respect to the Grant; and (c) Trustor's proposed form
of agreement subordinating the Lien of this Deed of Trust as to such Grant; and
6.2.2.6 Trustor shall pay or reimburse Beneficiary
for all of its reasonable costs and expenses incurred in connection with the
requested Transfer.
6.2.3 After the satisfaction of the conditions contained
in Section 6.2.2, Beneficiary shall deliver to Trustee appropriate instructions
to subordinate the Lien of this Deed of Trust to the Grant.
Section 6.3 No Cooperative or Condominium. Trustor shall not
operate or permit the Real Property to be operated as a cooperative or
condominium building or buildings in which the tenants or occupants participate
in the ownership, control or management of the Real Property or any part
thereof, as tenant stockholders or otherwise.
Section 6.4 Impairment of Deed of Trust. Trustor shall not suffer
waste of the Real Property or do or suffer any act or thing to be done, or omit
to do any act or thing, if such act or thing, or such forbearance or omission,
would materially impair the Real Property or the security of this Deed of Trust.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
Section 7.1 Casualties. Trustor will notify Beneficiary in
writing promptly after loss or damage caused by fire, wind or other casualty to
the Property (a) that is in excess of $20,000, or (b) that would individually,
or in the aggregate, have a material adverse effect on the value of the
Improvements, Real Property or Vessel or materially and adversely affect
Trustor's use or operation of the Improvements, Real Property or Vessel
("Casualty").
7.1.1 Any monies received as payment for any loss under any
insurance policy shall be treated in accordance with the applicable provisions
of the Loan Agreement and shall be released to Trustor or applied as set forth
in the applicable provisions of the Loan Agreement.
Section 7.2 Condemnation. Trustor, immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of all or
substantially all of the Real Property, will notify Trustee and Beneficiary of
the pendency of such proceedings. Trustee and Beneficiary may participate in any
such proceedings and Trustor from time to time will deliver to Beneficiary all
instruments requested by Beneficiary to permit such participation; provided,
however, that Trustor shall have the sole right to participate in and settle any
and all such proceedings unless an Event of Default then exists. In any such
condemnation proceedings Beneficiary may be represented by counsel selected by
Beneficiary at the sole cost and expense
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of Trustor; provided, however, that Trustor shall have the sole right to
participate in and settle any and all such proceedings unless an Event of
Default then exists. Trustor shall cause the net proceeds of any award or
compensation or payment in lieu of settlement thereof, to be applied as set
forth in the Loan Agreement. To the extent permitted by Applicable Laws, Trustor
hereby specifically, unconditionally and irrevocably waives all rights of a
property owner granted under Applicable Laws which provide for allocation of
condemnation proceeds between a property owner and a lienholder.
ARTICLE 8.
REMEDIES OF BENEFICIARY
Section 8.1 Event of Default. Subject to any applicable cure
period provided for in the Loan Agreement or in this Deed of Trust, any of the
following shall be deemed to be an "Event of Default" hereunder if not cured
within such applicable cure period:
8.1.1 The occurrence of one or more "Events of Default"
(as defined in Section 8 of the Loan Agreement) shall constitute an Event of
Default under this Deed of Trust (including, without limitation, by reason of
any cross-default provisions thereof).
8.1.2 Failure of Trustor to perform any of the terms,
covenants and conditions in this Deed of Trust; provided, however, it shall not
be an Event of Default hereunder if such failure is curable, Trustor commences
to cure such failure within thirty (30) days of notice from Beneficiary, and
Trustor diligently prosecutes such cure to completion within sixty (60) days
after notice of such failure, but in no event beyond the Maturity Date (as
defined in the Loan Agreement); and provided that, with respect to the
environmental covenants contained in Section 11.2 hereof, no Event of Default
shall be deemed to have occurred unless any such covenant is breached in any
material respect.
8.1.3 Any statement, representation or warranty given by
Trustor to Trustee or Beneficiary in any of the Loan Documents, in connection
with the Loan Agreement or in any other document provided by Trustor, including
this Deed of Trust, is found to be materially false or misleading and such
statement, representation or warranty continues to be materially false or
misleading within sixty (60) days after notice from Beneficiary of such
statement, representation or warranty was made, but in no event beyond the
Maturity Date (as defined in the Loan Agreement).
8.1.4 Any transfer of the Real Property or any portion
thereof in violation of Section 6.2. hereof.
8.1.5 The occurrence of one or more "Event of Default"
as defined in the Vessel Mortgage shall constitute an Event of Default under
this Deed of Trust.
Section 8.2 Remedies. Beneficiary shall be and hereby is
authorized and empowered, for and in the name and on behalf of Trustor, and
shall be and hereby is irrevocably made,
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constituted and appointed Trustor's true and lawful attorney in fact, coupled
with an interest and with full power of substitution, delegation and revocation,
to do the following at any time after and during the continuance of an Event of
Default.
8.2.1 In person, by agent, or by a receiver, and without
regard to the adequacy of security, the solvency of Trustor or any other matter,
(i) enter upon and take possession of the property, or any part thereof, in its
own name or in the name of Trustee, (ii) inspect the Real Property for the
purpose of determining the existence, location, nature and magnitude of any past
or present release of Hazardous Materials into, onto, beneath or from the Real
Property, (iii) negotiate with Governmental Authorities with respect to
compliance with Environmental Requirements, including, but not limited to,
spending Rents in connection with any cleanup, remediation or other response
action with respect to Hazardous Materials or (v) sue for or otherwise collect
the Rents, issues and profits thereof and apply the same, less costs and
expenses of operation and collection, including reasonable attorneys' fees
actually incurred, to the Secured Obligations, all in such order as Beneficiary
may determine. The entering upon and taking possession of said Real Property,
the collection of such Rents, issues and profits and the application thereof as
aforesaid shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice, or deprive Beneficiary of the
benefits of any indemnity set forth herein;
8.2.2 Commence an action to foreclose this Deed of Trust in
the manner provided by Applicable Laws for the foreclosure of mortgages or deeds
of trust of real property;
8.2.3 Seek a judgment that Trustor has breached its
covenants, representations and/or warranties set forth in this Deed of Trust, or
any other Loan Document regarding Environmental Requirements and/or Hazardous
Materials, by commencing, maintaining and concluding, and enforcing a judgment
arising from, an action for breach of contract, without regard to whether
Beneficiary has commenced an action to foreclose this Deed of Trust, and to seek
injunctive or other appropriate equitable relief and/or the recovery of any and
all Environmental Damages, it being conclusively presumed between Trustor and
Beneficiary that any reasonable costs advanced or expenses actually incurred by
Beneficiary relating to the cleanup, remediation or other response action with
respect to the Real Property were made or incurred by Beneficiary in good faith.
8.2.4 Intentionally Deleted.
8.2.5 Declare the Secured Obligations to become immediately
due and payable pursuant to Section 9.1 of the Loan Agreement. If the
Beneficiary so declares and Trustor fails to make such payment as and when due,
then Beneficiary may waive its Liens against any parcel of the Real Property or
all or any portion of the Fixtures or Personal Property attached to the Real
Property, to the extent such property is determined to be environmentally
impaired, and to exercise any and all rights of an unsecured creditor against
Trustor and all of Trustor's assets for the recovery of any deficiency,
including, but not limited to, seeking an attachment order. TRUSTOR ACKNOWLEDGES
AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXPRESS OR IMPLIED, IN
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THIS DEED OF TRUST OR IN ANY OF THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT
LIMITATION, ANY NONRECOURSE OR EXCULPATORY LANGUAGE, IF ANY), TRUSTOR SHALL BE
PERSONALLY LIABLE FOR ANY RECOVERY DESCRIBED IN THIS PARAGRAPH 8.2.5. AND SUCH
LIABILITY SHALL NOT BE LIMITED TO THE AMOUNT OF THE INDEBTEDNESS CURRENTLY
OUTSTANDING UNDER THE LOAN AGREEMENT.
8.2.6 With respect to any Personal Property, proceed as
to both the real and personal property in accordance with Beneficiary's rights
and remedies in respect of the Real Property, or proceed to sell said Personal
Property separately and without regard to the Real Property in accordance with
Beneficiary's rights and remedies; and/or
8.2.7 Pursue any and all other remedies it may have, at
law or in equity, or under any other document or instrument, except as otherwise
provided in the Loan Agreement.
Section 8.3 Power of Sale. Upon the occurrence and during the
continuance of an Event of Default, then, in that event, the entire Secured
Obligations, together with all interest accrued thereon, shall, at the option of
Beneficiary, be and become at once due and payable without notice to Trustor,
and Trustee shall, at request of Beneficiary, but subject to Applicable Gaming
Laws, sell the Real Property conveyed, or a sufficiency thereof, to satisfy the
Secured Obligations at public outcry to the highest bidder for cash or on such
other terms as Trustee may approve. Sale of the Real Property shall be
advertised for three (3) consecutive weeks preceding the sale in a newspaper
published in the county where the Real Property is situated, or if none is so
published, then in some newspaper having a general circulation therein, and by
posting a notice for the same time at the courthouse of the same county. The
notice and advertisement shall disclose the names of the original Trustor in
this Deed of Trust. Trustor waives the provisions of Section 89-1-55 of the
Mississippi Code of 1972, as amended, insofar as this Section restricts the
right of Trustee to offer at sale more than 160 acres at a time, and Trustee may
offer the property herein conveyed as a whole, regardless of how it is
described. If the Real Property is situated in two (2) or more counties, or in
two (2) judicial districts of the same county, Trustee shall have full power to
select in which county or judicial district the sale of the Real Property is to
be made, newspaper advertisement to be published and notice of sale to be
posted, and Trustee's selection shall be binding upon Trustor and Beneficiary.
Should Beneficiary be a corporation or an unincorporated association, then any
officer thereof may declare Trustor to be in default as provided in Section 8.1
hereof and request Trustee to sell the Real Property. Beneficiary shall have the
same right to purchase the Real Property at the foreclosure sale as would a
purchaser who is not a party to this Deed of Trust. The Trustor hereby
irrevocably and unconditionally waives and releases: (i) all benefits that might
accrue to the Trustor by virtue of any present or future law exempting the Real
Property from attachment, levy or sale or execution or providing for any
appraisement, valuation, stay of execution, exemption from civil process,
redemption or extension of time for payment; (ii) except as required under the
Loan Documents, all notices of any Event of Default or of the Trustee's
28.
exercise of any right, remedy or recourse provided for hereunder or under any of
the other Loan Documents; and (iii) any right to a marshaling of assets or a
sale in inverse order of alienation.
Section 8.4 Proof of Default. The event of a sale of the Real
Property, or any part thereof, and the execution of a deed or deeds therefor,
the recital therein of default, and of recording notice of breach and election
of sale, and of the elapsing of the required time (if any) between the foregoing
recording and the following notice, and of the giving of notice of sale, and of
a demand by Beneficiary, or its successors or assigns, that such sale should be
made, to the extent permitted by Applicable Laws, as between Trustor and any
purchaser at such sale, shall be conclusive proof of such default, recording,
election, elapsing of time, and of the due giving of such notice, and that the
sale was regularly and validly made on due and proper demand by Beneficiary, its
successors or assigns; and any such deed or deeds with such recitals therein
shall be effectual and conclusive as to any such purchaser against Trustor, its
successors and assigns, and all other Persons; and the receipt for the purchase
money recited or contained in any deed executed to the purchaser as aforesaid
shall be sufficient discharge to such purchaser from all obligations to see to
the proper application of the purchase money.
Section 8.5 Protection of Security. If an Event of Default shall
have occurred and be continuing, then upon at least fifteen (15) days prior
written notice to Trustor and without releasing Trustor from any obligations or
defaults hereunder, Beneficiary or Trustee shall have the right, but not the
obligation, to: (i) make payment or otherwise perform such obligations of
Trustor upon which such Event of Default is based in such manner and to such
extent as either may reasonably deem necessary to protect the security hereof,
Beneficiary and Trustee being authorized to enter upon the Real Property for
such purpose; (ii) appear in and defend any action or proceeding purporting to
affect, in any manner whatsoever, the Secured Obligations, the security hereof
or the rights or powers of Beneficiary or (iii) pay, purchase or compromise any
encumbrance, charge or lien (other than Permitted Liens); (iv) advance any and
all costs and expenses reasonably necessary to cure or pay Environmental Damages
or otherwise to comply with Environmental Requirements; and (v) in exercising
any such powers, pay necessary expenses, employ counsel and pay attorneys' fees.
Trustor hereby agrees to repay within thirty (30) days after receipt of written
demand all reasonable sums actually expended by Trustee or Beneficiary pursuant
to this Section 8.5. with interest at the Default Rate from the date of
expenditure by Beneficiary, and such sums, with interest shall be secured
hereby.
Section 8.6 Receiver. If an Event of Default shall have occurred
and be continuing, Beneficiary, as a matter of strict right and without regard
to the then value of the Real Property, shall have the right to apply, ex parte
or otherwise, to any court having jurisdiction to appoint a Receiver or
Receivers of the Real Property, subject to Applicable Gaming Laws. Any such
Receiver or Receivers shall have all the powers and duties of receivers under
Applicable Laws in like or similar cases and all the powers and duties of
Beneficiary in case of entry as provided in this Deed of Trust, and shall
continue as such and exercise all such powers until the date of confirmation of
sale, unless such receivership is sooner terminated.
Section 8.7 Curing of Defaults.
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8.7.1 If Trustor shall at any time fail to perform or
comply with any of the terms, covenants and conditions required on Trustor's
part to be performed and complied with under this Deed of Trust or any other
Loan Document relating to the Trust Estate (after the lapse of any cure period
provided therein), then Beneficiary shall have the right, but not the
obligation, upon the occurrence and during the continuance of an Event of
Default, without waiving or releasing any of the Secured Obligations, to:
8.7.1.1 make any payments thereunder payable by
Trustor and take out, pay for and maintain any of the insurance policies
provided for therein, and/or
8.7.1.2 after the expiration of any applicable grace
period and subject to Trustor's rights to contest certain obligations
specifically granted hereby, perform any such other acts thereunder on the part
of Trustor to be performed and enter upon the Real Property and incur reasonable
attorneys' fees and expenses for such purpose.
8.7.2 The making by Beneficiary of such payment out of
Beneficiary's own funds shall not, however, be deemed to cure such default by
Trustor, and the same shall not be so cured unless and until Trustor shall have
reimbursed Beneficiary within the applicable cure period for such payment
including interest at the Default Rate from the date of such expenditure. All
sums so paid and all reasonable costs and expenses actually incurred and paid by
Beneficiary in connection with the performance of any such act, together with
interest on unpaid balances thereof at the Default Rate from the respective
dates of Beneficiary's making of each such payment, shall be secured by the lien
of this Deed of Trust, prior to any right, title or, interest in or claim upon
the Real Property attaching or accruing subsequent to the lien of this Deed of
Trust and shall be payable by Trustor to Beneficiary within thirty (30) days
after receipt of written demand.
Section 8.8 Remedies Cumulative. All remedies of Beneficiary and
all other rights and provided for herein are cumulative and shall be in addition
to any remedies provided in the other Loan Documents or provided by Applicable
Law, including any banker's lien and right of offset. The exercise of any right
or remedy by Beneficiary hereunder shall not in any way constitute a cure or
waiver of default hereunder or under the Loan Documents, or invalidate any act
done pursuant to any notice of default, or prejudice Beneficiary in the exercise
of any of its rights hereunder or under the other Loan Documents unless, in the
exercise of said rights, all Secured Obligations are fully discharged.
ARTICLE 9.
SECURITY AGREEMENT AND FIXTURE FILING
Section 9.1 Grant of Security Interest. To secure the payment and
performance of the Secured Obligations as and when due, Trustor (as debtor)
hereby grants, conveys, pledges, assigns and transfers to Beneficiary (as
secured party), as agent and representative for the equal and ratable benefit of
Trustee and the Holders, security interests (collectively, the "Security
Interest") in, all right, title, claim, estate and interest in and to all
Personal Property and Fixtures,
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whether now owned and existing or hereafter acquired or arising, and wherever
located, including, without limitation, the following but excluding in each case
any "Excluded Assets" (the "Collateral"):
9.1.1 Any and all "chattel paper" as such term is
defined in Section 9-102 of the UCC (the "Chattel Paper");
9.1.2 Any and all "accounts" as such term is defined in
Section 9-102 of the UCC (the "Accounts");
9.1.3 Any and all rights to payment for goods sold or
leased or services rendered, whether or not earned by performance and all rights
in respect of the Account Debtor, including without limitation all such rights
constituting or evidenced by any Account, Chattel Paper or Instrument together
with (a) any collateral assigned, hypothecated or held to secure any of the
foregoing and the rights under any security agreement granting a security
interest in such collateral, (b) all goods, the sale of which gave rise to any
of the foregoing, including, without limitation, all rights in any returned or
repossessed goods and unpaid seller's rights, (c) all guarantees, endorsements
and indemnifications on, or of, any of the foregoing and (d) all powers of
attorney for the execution of any evidence of indebtedness or security or other
writing in connection therewith Any and all negotiable instruments, promissory
notes, acceptances, drafts, checks, certificates of deposit and other writings
that evidence a right to the payment of money by any other Person
("Receivables").
9.1.4 Any and (a) all original copies of all documents,
instruments or other writings evidencing the Receivables, (b) all books,
correspondence, credit or other files, records, ledger sheets or cards,
invoices, and other papers relating to Receivables, including without limitation
all tapes, cards, computer tapes, computer discs, computer runs, record keeping
systems and other papers and documents relating to the Receivables, whether in
the possession or under the control of any Trustor or any computer bureau or
agent from time to time acting for Trustor or otherwise and (c) all credit
information, reports and memoranda relating thereto ("Receivables Records");
9.1.5 Any and all rights to payment:
9.1.5.1 to the extent not included in Accounts,
Receivables or Chattel Paper, receivables from any credit card company (such as
Visa, MasterCard, Chattel Paper, American Express and Diner's Club), whether
arising out of or relating to the sale of lodging, goods and services by Trustor
or otherwise; and
9.1.5.2 of money not listed above and any and all
rights, titles, interests, securities, Liens and guaranties evidencing,
securing, guaranteeing payment of or in any way relating to any Receivables;
9.1.6 Any and all "Inventory" as such is defined in
Section 9-102 of the UCC, including without limitation and in any event, all
goods (whether such goods are in the
31.
possession of Trustor or a lessee, bailee or other Person for sale, lease,
storage, transit, processing, use or otherwise and whether consisting of whole
goods, spare parts, components, supplies, materials or consigned or returned or
repossessed goods) which are held for sale or lease or are to be furnished (or
which have been furnished) under any contract of service or which are raw
materials or work in progress or materials used or consumed in any Trustee's
business ("Inventory");
9.1.7 Any and all "equipment" as such term is defined in
Section 9-102 of the UCC, including, without limitation:
9.1.7.1 machinery, machine tools, manufacturing
equipment, data processing equipment, computers, office equipment, furniture,
appliances, rolling stock, motors, pumps, controls, tools, parts, works of art,
furnishings and trade fixtures, all athletic equipment and supplies and all
molds, dies, drawings, blueprints, reports, catalogs and computer programs
related to any of the above.
9.1.7.2 ships, boats, barges and vessels (whether
under construction or completed) and any and all masts, bowsprits, boilers,
engines, sails. fittings, anchors, cables, chains, riggings, tackle, apparel,
capstans, outfits, gears, appliances, fittings and spare and replacement parts
and other appurtenances, accessories and additions, improvements and
replacements thereto, whether onboard or not on board, in or to any ship, boat,
barge or vessel,
9.1.7.3 slot machines, electronic gaming devices and
related equipment, crap tables, blackjack tables, roulette tables, baccarat
tables, keno apparatus, cards, dice, gaming chips and plaques, tokens, chip
racks. dealing shoes, dice cups, dice, sticks, layouts, paddles, roulette balls
and other supplies and items used in connection with gaming operations, and
9.1.7.4 stones, wood, steel and other materials used
or to be used in the building, construction, repair, renovation, refurbishment
or otherwise with respect to improvements or ships, boats, barges or vessels.
9.1.8 Any and all "fixtures" as such term is defined in
Section 9-102 of the UCC, including without limitation, machinery, equipment or
appliances for generating, storing or distributing air, water, heat,
electricity, light, fuel or refrigeration, for ventilating or sanitary purposes,
elevators, safes, laundry, kitchen and athletic equipment, trade fixtures, and
telephone, television and other communications equipment;
9.1.9 Any and all "documents" as such term is defined in
Section 9-102 of the UCC (the "Documents");
9.1.10 Any and all "general intangibles" as such term is
defined in Section 9-102 of the UCC (together with any property listed under
Section 9.1.4. relating thereto, the "General Intangibles"), including, without
limitation and in any event, rights to the
32.
following: payment of money, and Trademark Collateral (as defined in the
Trademark Security Agreement), patents, and Contracts (as defined in Section
9.1.16 hereof), licenses and franchises (except, in the case of licenses and
franchises if, and for so long as, the agreement in respect of such license or
franchise prohibits by its terms any assignment or grant of a security interest
therein without the consent of the other party thereto, unless the violation of
such prohibition would not give any other party to such franchise or license the
right to terminate its obligations thereunder), limited and general partnership
interests and joint venture interests federal income tax refunds, trade names,
distributions on certificated securities (as defined in Section 8-102 of the
UCC), computer programs and other computer software, inventions, designs, trade
secrets, goodwill, proprietary rights, customer lists, Player Tracking Systems,
supplier contracts, sale orders, correspondence, advertising materials, payments
due in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of any property, reversionary interests in pension and profit-sharing
plans and reversionary, beneficial and residual interests in trusts, credits
with and other claims against any Person, together with any collateral for any
of the foregoing and the rights under any security agreement granting a security
interest in such collateral.
9.1.11 The Designated Account established and maintained
pursuant to Section 2.9 of the Loan Agreement.
9.1.12 Any and all (i) shares of capital stock of any
Subsidiary, from time to time owned by Trustor or options or rights to acquire
any such shares or interests now or hereafter owned by Trustor, (ii)
Distributions (as defined below) on Pledged Securities (as constituted
immediately prior to such Distribution) constituting securities (whether debt or
equity securities or otherwise), (iii) other or additional stock, notes,
securities or property paid or distributed in respect of Pledged, Securities (as
constituted immediately prior to such payment or distribution) by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement, and (iv) other or additional stock, notes, securities or
property, (including cash) that may be paid in respect of Pledged Securities (as
constituted immediately prior to such payment) by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation, bankruptcy or
similar corporate reorganization or other disposition of Pledged Securities
("Pledged Securities").
9.1.13 Any and all dividends, distributions, payments of
interest and principal and other amounts (whether consisting of cash,
securities, personalty or other property) from time to time received, receivable
or otherwise distributed in respect of or in exchange or substitution for any of
the Pledged Securities ("Distributions").
9.1.14 Any and all "instruments" as such term is defined in
Section 9-102 of the UCC ("Instruments").
9.1.15 [Intentionally Omitted]
9.1.16 Any and all contracts between Trustor and one or more
additional parties ("Contracts").
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9.1.17 Any and all interest rate or currency protection
or hedging arrangements, including, without limitation, floors, forwards and any
other similar or dissimilar interest rate or currency exchange agreements or
other interest rate currency hedging arrangements ("Hedging Agreements").
9.1.18 Any and all motor vehicles, tractors, trailers and
other like property, if title thereto is governed by a certificate of title
ownership ("Motor Vehicles").
9.1.19 Any and all books, records, computer software,
computer printouts, customer lists, blueprints, technical specifications,
manuals, and similar items which relate to any Personal Property or Fixtures
other than such items obtained under license or franchise agreements that
prohibit assignment or disclosure of such items ("Books and Records");
9.1.20 Any and all accessions, appurtenances, components,
repairs, repair parts, spare parts, renewals, improvements, replacements,
substitutions and additions to, of or with respect to any of the foregoing;
9.1.21 Any and all rights, remedies, powers and
privileges of Trustor with respect to any of the foregoing; and
9.1.22 Any and all proceeds and products of any of the
foregoing, whether now held and existing or hereafter acquired or arising,
including all rents, issues, income and profits of or from any of the foregoing
(collectively, the "Proceeds"). "Proceeds" shall include (i) whatever is now or
hereafter received by Trustor upon the sale, exchange, collection, other
disposition or operation of any item of Personal Property, whether such proceeds
constitute accounts, general intangibles, instruments, securities, documents,
letters of credit, chattel paper, deposit accounts, money, goods or other
personal property, (ii) any amounts now or hereafter payable under any insurance
policy by reason of any loss of or damage to any Personal Property or the
business of Trustor, (iii) all rights to payment and payments for hotel room
occupancy (and related reservations) and the sale of services or products in
connection therewith, (iv) the right to further transfer, including by pledge,
mortgage, license, assignment or sale, any of the foregoing, and (v) any items
that are now or hereafter acquired by Trustor with any of the foregoing;
provided, however, that "Proceeds" shall not include Excluded Assets.
Section 9.2 Remedies, etc. This Deed of Trust constitutes a
security agreement with respect to the Personal Property, in which Beneficiary
is granted a security interest hereunder, and Beneficiary shall have all of the
rights and remedies of a secured party under the UCC and the other Loan
Documents as well as all other rights and remedies available at law or in
equity. Upon the occurrence and during the continuance of any Event of Default
hereunder, Beneficiary shall have the right (a) to proceed as to both the Real
and Personal Property covered by this Deed of Trust in accordance with the
Beneficiary's rights and remedies in respect of said Real Property, in which
event (i) the provisions of the UCC otherwise applicable to sale of the
Collateral shall not apply, and (ii) the sale of the Collateral in conjunction
with and as one parcel with said Real Property (or any portion thereof) shall be
deemed to be a commercially reasonable
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manner of sale; or (b) to proceed as to the Collateral separately from the Land
and Improvements, in which event the requirement of reasonable notice shall be
met by mailing notice of the sale, postage prepaid, to the Trustor or any other
person entitled thereto at least ten (10) days before the time of the sale or
other disposition of any of the Collateral.
Section 9.3 Expenses. Reasonable expenses actually incurred of
retaking, holding, preparing for sale, selling or the like shall be borne by
Trustor and shall include Beneficiary's and Trustee's reasonable attorneys'
fees, charges and disbursements (including, without limitation, any and all
costs of appeal).
Section 9.4 Fixture Filing.
9.4.1 This Deed of Trust shall be effective as a
Financing Statement filed as a fixture filing from the date of the recording
hereof in accordance with the Uniform Commercial Code. In connection therewith,
the addresses of Trustor as debtor ("Debtor") and Beneficiary as secured party
("Secured Party") are set forth on Schedule 12.9. The address of Beneficiary, as
the Secured Party, is also the address from which information concerning the
security interest may be obtained by any interested party.
9.4.1.1 The property subject to this fixture filing
is described in Sections 9.1.7. and 9.1.9 and Granting Clause Two.
9.4.1.2 Portions of the property subject to this
fixture filing as identified in Section 9.4.1.1. above are or are to become
fixtures related to the real estate described on Exhibit A to this Deed of
Trust.
9.4.1.3 Secured Party is: Foothill Capital
Corporation.
9.4.1.4 Debtor is: Barden Mississippi Gaming, LLC, a
Mississippi limited liability company.
9.4.1.5 The record owner or lessee of the Real
Property is: Barden Mississippi Gaming, LLC, a Mississippi limited liability
company
In the event Trustor shall fail beyond any applicable notice
and grace periods, to make any payment or perform any covenant related to any
security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within fifteen (15) days after notice to Trustor or if
Beneficiary's immediate action is reasonably necessary to protect the lien
hereof or its security for the Secured Obligations, at any time without prior
notice to Trustor, pay the amount secured by such security interest, and the
amount so paid shall be (i) secured by this Deed of Trust and shall be a lien on
the Real Property enjoying the same priorities vis-a-vis the estates and
interests encumbered hereby as this Deed of Trust, (ii) added to the amount of
the Secured Obligations, and (iii) payable within thirty (30) days after receipt
of written demand with interest at the Default Rate from the time of such
payment; or, upon and during the continuance of an Event of Default, Beneficiary
shall have the privilege of acquiring by
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assignment from the holder of such security interest any and all contract
rights, accounts receivable, chattel paper, negotiable or non-negotiable
instruments and other evidence of Trustor's indebtedness secured by such
fixtures, and, upon acquiring such interest by assignment, shall have the right
to enforce the security interest as assignee thereof, in accordance with the
terms and provisions of the UCC, as amended or supplemented, and in accordance
with other Applicable Laws.
Section 9.5 Applicable Gaming Laws and Liquor Laws.
All rights, remedies, and powers provided in this Deed of
Trust relative to the Collateral may be exercised only to the extent that the
exercise thereof does not violate any applicable mandatory provision of the
Applicable Gaming Laws or the Liquor Laws and all provisions of this Deed of
Trust relative to the Collateral are intended to be subject to all applicable
mandatory provisions of the Applicable Gaming Laws and Liquor Laws and to be
limited solely to the extent necessary to not render the provisions of this Deed
of Trust invalid or unenforceable, in whole or in part. Beneficiary will timely
apply for and receive all required approvals of the applicable Gaming Authority
for the sale or other disposition of gaming equipment regulated by Applicable
Gaming Laws (including any such sale or disposition of gaming equipment
consisting of slot machines, gaming tables, cards, dice, gaming chips, player
tracking systems, and all other "gaming devices" (as such term or words of like
import referring thereto are defined in the Applicable Gaming Laws), and
"associated equipment" (as such term or words of like import referring thereto
are defined in the Applicable Gaming Laws) and of the Liquor Authorities under
Liquor Laws for the sale of liquor and other alcoholic beverages.
ARTICLE 10.
ASSIGNMENT OF RENTS
Section 10.1 Assignment of Rents. Subject to Section 10.2, and to
Applicable Gaming Laws, Trustor hereby absolutely and unconditionally assigns
and transfers to Beneficiary all of the Rents, whether now due, past due or to
become due, and hereby gives to and confers upon Beneficiary the right, power
and authority to collect such Rents and apply the same to the Secured
Obligations secured hereby. Trustor irrevocably appoints Beneficiary, as its
true and lawful attorney, at the option of Beneficiary at any time while an
Event of Default exists, to demand, receive and enforce payment, to give
receipts, releases and satisfactions, and to sue, either in the name of Trustor
or in the name of Beneficiary, for all such Rents and apply the same to the
Secured Obligations secured hereby. It is understood and agreed that neither the
foregoing assignment of Rents to Beneficiary nor the exercise by Beneficiary or
any of its rights or remedies under this Deed of Trust shall be deemed to make
Beneficiary a "mortgagee-in-possession" or otherwise responsible or liable in
any manner with respect to the Real Property or the use, occupancy, enjoyment or
operation of all or any portion thereof, unless and until Beneficiary, in person
or by its own agent, assumes actual possession thereof, nor shall appointment of
a Receiver for the Real Property by any court at the request of Beneficiary or
by agreement with Trustor or the entering into possession of the Real Property
or any part thereof by such Receiver be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise
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responsible or liable in any manner with respect to the Real Property or the
use, occupancy, enjoyment or operation of all or any portion thereof.
Section 10.2 Collection of Rents. Notwithstanding anything to the
contrary contained herein, so long as no Event of Default shall occur and be
continuing, Trustor shall have a license, revocable upon the occurrence and
during the continuance of an Event of Default, to collect all Rents from the
Real Property and to retain, use and enjoy the same and to otherwise exercise
all rights with respect thereto, subject to the terms hereof. Upon the
occurrence and during the continuance of an Event of Default, the license
hereinabove granted to Trustor shall, without the requirement of the giving of
notice or taking of any action by any party, be revoked, and Beneficiary shall
have the complete right and authority to exercise and enforce any and all of its
rights and remedies provided herein or by Applicable Laws.
ARTICLE 11.
ENVIRONMENTAL MATTERS
Section 11.1 Representations and Warranties. Except as
specifically disclosed in Schedule 11.1, Trustor represents and warrants as of
the date hereof as follows:
11.1.1 Trustor (i) has obtained all material permits,
licenses and other authorizations that are required with respect to the
operation of its business, property and assets under the Environmental
Requirements and is in substantial compliance with all terms and conditions
thereof, and (ii) is in substantial compliance with all Environmental
Requirements (including, without limitation, compliance with standards,
schedules and timetables therein);
11.1.2 No portion of the Trust Estate is listed or
proposed for listing on the National Priorities List or the Comprehensive
Environmental Response, Compensation, and Liability Information System, both
promulgated under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or on any other state or local
list established pursuant to any Environmental Requirement, and Trustor has not
received any notification of potential or actual liability or request for
information under CERCLA or any comparable state or local law;
11.1.3 To the knowledge of Trustor, no underground
storage tank or other underground storage receptacle, or related piping, is
located on the Real Property;
11.1.4 To the knowledge of Trustor, there have been no
releases (i.e., any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping, on-site or, to the knowledge of the Trustor after due
inquiry, off-site) of Hazardous Materials at, on, under, from or into the Real
Property;
11.1.5 There is no written, or to the knowledge of the
Trustor, any Environmental Claim pending, or, to the knowledge of Trustor,
threatened against any of them, and to the knowledge of Trustor, neither Trustor
nor any person or entity whose liability Trustor
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has retained or assumed either contractually or by operation of law has any
liability, absolute or contingent, under any Environmental Law; and
11.1.6 To the knowledge of Trustor, there are no events,
activities, practices, incidents or actions or conditions, circumstances or
plans that may interfere with or prevent compliance by Trustor with any
Environmental Law, or that may give rise to any Environmental Claim or liability
under any Environmental Laws;
11.1.7 Trustor has not received any communication
(written or, to the knowledge of Trustor, oral), whether from a governmental
authority, citizens group, employee or otherwise, that alleges that Trustor or
the Real Property is not in substantial compliance with any Environmental
Requirement, and there are no known circumstances that may prevent or interfere
with such substantial compliance in the future.
11.1.8 Trustor has provided or made available to
Beneficiary all assessments, reports, data, results of investigations or audits,
and other information that is in the possession of or reasonably available to
Trustor regarding environmental matters pertaining to, or the environmental
condition of, the Land and the business of Trustor, or the compliance (or
noncompliance) of the Land and Trustor with any Environmental Requirements.
11.1.9 Trustor is not required by virtue of the
transactions set forth herein and contemplated hereby, or as a condition to the
effectiveness of any transactions contemplated hereby, (i) to perform a site
assessment for Hazardous Materials, (ii) to remove or remediate Hazardous
Materials, (iii) to give notice to or receive approval from any Governmental
Authority under Environmental Requirements, or (iv) to record or deliver to any
person or entity any disclosure document or statement pertaining to
environmental matters.
11.1.10 The above representations and warranties contained
in this Section 11.1 shall survive the termination, release and/or reconveyance
of this Deed of Trust and discharge of Trustor's other obligations hereunder.
Section 11.2 Environmental Covenants. Trustor shall at all times
comply with the following requirements; provided, however, that in connection
with the non-compliance with any of the provisions contained in Sections 11.2.1
through 11.2.4, inclusive, no breach shall be deemed to have occurred if Trustor
complies with the requirements of Section 11.2.5 with respect thereto:
11.2.1 Trustor shall not cause or permit any Hazardous
Material to be brought upon, treated, kept, stored, disposed of, discharged,
released, produced, manufactured, generated, refined or used upon, within or
beneath the Real Property or any portion thereof by Trustor, its agents,
employees, contractors, or invitees, or any other person, except in compliance
with all Environmental Requirements and only in the course of such person's
legitimate business operations at the Real Property (which shall not include any
business for treatment, storage, disposal, discharge, release, production,
manufacture, generation, refinement or use of Hazardous Materials).
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11.2.2 Trustor shall not cause or permit the existence or
the commission by Trustor, its agents, employees, contractors or invitees, or by
any other person of a material violation of any Environmental Requirements upon,
within or beneath the Real Property or any portion thereof.
11.2.3 Trustor shall not dispose of, discharge or release or
cause or permit the disposal, discharge or release of any Hazardous Materials
from the Real Property into any Public Waters in violation of any Environmental
Requirements.
11.2.4 Trustor shall not create or suffer to exist with
respect to the Real Property or permit any of its agents to create or suffer to
exist any environmental lien, security interest or other charge or encumbrance
of any kind (other than a Permitted Lien) arising under any Environmental
Requirement, including, without limitation, any lien imposed pursuant to Section
107(f) of the Superfund Amendment and Reauthorization Act of 1986 (42 U.S.C.
Section 9607(1)) or any similar state statute.
11.2.5 Trustor shall, at its sole cost and expense, promptly
take any and all actions required by any federal, state or local governmental
agency or political subdivision (as hereinafter provided) to mitigate
Environmental Damages, which requirements or necessity arise from the presence
upon, about or beneath the Real Property, of Hazardous Materials or a violation
of Environmental Requirements or the disposal, discharge or release of Hazardous
Materials from the Real Property into the Public Waters. Such actions shall
include, but not be limited to, the investigation of the environmental condition
of the Real Property, the preparation of any feasibility studies, reports or
remedial plans, and the performance of any cleanup, remediation, containment,
operation, maintenance, monitoring or restoration work, whether on or off of the
Real Property (provided that Trustor shall be obligated to take actions off of
the Real Property only if Trustor shall have the legal right to do so and shall
be expressly required to do so by Environmental Requirements). Trustor shall
take all actions as are reasonably necessary to restore the Real Property or the
Public Waters to substantially the condition existing prior to the introduction
of Hazardous Material by Trustor upon, about or beneath the Real Property,
notwithstanding any lesser standard of remediation allowable under Applicable
Laws or governmental policies, but recognizing the economic impracticability of
remediating to a level where Hazardous Materials are no longer detectable.
Trustor shall proceed continuously and diligently with such investigatory and
remedial actions, provided that in all cases such actions shall be in accordance
with Applicable Laws. Any such actions shall be performed in a good, safe and
workmanlike manner and shall minimize any impact on the business conducted at
the Real Property. Trustor shall pay all Environmental Damages in connection
with such investigatory and remedial activities, including, but not limited to,
all power and utility costs, and any and all taxes or fees that may be
applicable to such activities. Trustor shall promptly provide to Beneficiary
copies of testing results and reports that are generated in connection with the
above activities. Promptly upon completion of such investigation and
remediation, Trustor shall permanently seal or cap all monitoring wells and test
holes to industrial standards in compliance with Applicable Laws and
regulations, remove all associated equipment, and restore the Real Property to
the extent reasonably possible, which shall include, without limitation, the
repair of
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any surface damage, including paving, caused by such investigations or
remediation hereunder. Upon reasonable notice and at reasonable times (except in
cases of emergency or imminent threat of harm to human health or the
environment), the Indemnitees (as defined in Section 11.2.7 of this Deed of
Trust) shall have the right but not the obligation to enter upon the Real
Property to assess any and all aspects of the environmental condition of the
Real Property and its use, including conducting environmental assessments, audit
and sampling (including, but not limited to soil and groundwater sampling if
Indemnitees have a reasonable belief that such soil or groundwater may be
contaminated) not more than once a year, except where Indemnitees have a
reasonable belief that a release of Hazardous Materials or a violation of
Environmental Requirements has occurred or is likely to occur, all at the
expense of Trustor. Trustor and Trustee shall cooperate in choosing consultants
to conduct such work and Trustor shall provide access to the Indemnitees and
their agents, representatives, consultants and employees (together, the
"Indemnitees" for purposes of this Section 11.2.5) in connection with such
investigations. In the event that Trustor fails to fulfill its obligations under
this Deed of Trust relating to environmental matters, including this Section
11.2.5, following the expiration of thirty (30) days written notice by
Beneficiary of its intent to invoke its rights under this Section, unless
Beneficiary has a reasonable belief that a more immediate response is required
under Environmental Requirements, Beneficiary shall have the right to undertake
any action necessary or prudent under Environmental Requirements, and shall have
the right to pursue any and all legal theories and remedies provided by law or
contract to enforce the covenants in this Section 11.2 and the other provisions
of this Article 11. Nothing in this Deed of Trust shall be deemed to create, or
construed as creating, any liability of the Indemnitees under Environmental
Requirements for environmental conditions relating to the Real Property.
11.2.6 If Trustor shall become aware of or receive notice or
other communication concerning any actual, alleged, suspected or threatened
violation of any Environmental Requirements or Environmental Claim or liability
of Trustor for Environmental Damages in connection with the Real Property or
past or present activities of any person thereon, including, but not limited to,
notice or other communication concerning any actual or threatened investigation,
inquiry, lawsuit, claim, citation, directive, summons, proceedings, complaint,
notice, order, writ or injunction, relating to same, then Trustor shall deliver
to Beneficiary, within seven (7) days of the receipt of such notice or
communication by Trustor, a written description of said violation, liability, or
actual or threatened event or condition, together with copies of any documents
evidencing same. Receipt of such notice shall not be deemed to create any
obligation on the part of Beneficiary to defend or otherwise respond to any such
notification.
11.2.7 Trustor agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless Beneficiary, its successors and assigns, the
Holders, and their respective directors, officers, shareholders, employees,
agents, contractors, subcontractors, experts, licensees, affiliates, lessees,
trustees, and invitees (collectively, the "Indemnitees") from and against any
and all Environmental Claims and Environmental Damages arising in any manner
whatsoever out of Environmental Requirements pertaining to the Real Property and
the activities thereon, whether foreseeable or unforeseeable, and regardless of
when such Environmental Claims arose and Environmental Damages occurred, except
to the extent directly caused by the gross
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negligence or willful misconduct of Indemnitees. The indemnity obligations of
Trustor contained in this Section 11.2.7 shall survive the termination, release
and/or reconveyance of this Deed of Trust and the discharge of Trustor's other
obligations hereunder.
ARTICLE 12.
MISCELLANEOUS
Section 12.1 Beneficiary's Expenses, Including Attorneys' Fees.
Regardless of the occurrence of a Default or Event of Default, Trustor agrees to
pay to Beneficiary any and all advances, charges, costs and expenses, including,
without limitation, the reasonable fees and expenses of counsel and any experts
or agents, that Beneficiary may reasonably incur in connection with (i) the
administration of this Deed of Trust, including any amendment thereto or any
workout or restructuring, (ii) the creation, perfection or continuation of the
Lien of this Deed of Trust or protection of its priority or the Trust Estate,
including the discharging of any prior or junior Lien or adverse claim against
the Trust Estate or any part thereof that is not permitted hereby or by the Loan
Agreement, (iii) the custody, preservation or sale of, collection from, or other
realization upon, any of the Trust Estate, (iv) the exercise or enforcement of
any of the rights, powers or remedies of Beneficiary under this Deed of Trust or
under Applicable Laws (including attorneys' fees and expenses incurred by
Beneficiary in connection with the operation, maintenance or foreclosure of the
Lien of this Deed of Trust) or any bankruptcy proceeding or (v) the failure by
Trustor to perform or observe any of the provisions hereof. All such amounts and
all other amounts payable hereunder shall be payable on demand, together with
interest at the Default Rate.
Section 12.2 Indemnity. Trustor hereby agrees to indemnify and
hold harmless the Indemnitees against (i) any and all transfer taxes,
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Deed of Trust and the other Loan
Documents, and (ii) any and all claims, actions, liabilities, costs and expenses
of any kind or nature whatsoever (including reasonable fees and disbursements of
counsel) that may be imposed on, incurred by, or asserted against any of them,
in any way relating to or arising out of this Deed of Trust or any action taken
or omitted by them hereunder, except to the extent that they resulted from the
gross negligence or willful misconduct of any such Indemnitee.
Section 12.3 Waivers' Modifications in Writing. No amendment of
any provision of this Deed of Trust (including a waiver thereof or consent
relating thereto) shall be effective unless the same shall be in writing and
signed by Beneficiary and Trustor. Any waiver or consent relating to any
provision of this Deed of Trust shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on Trustor
in any case shall entitle Trustor to any other or further notice or demand in
similar circumstances, except as otherwise provided herein or as required by
law.
Section 12.4 Cumulative Remedies; Failure or Delay. The rights and
remedies provided for under this Deed of Trust are cumulative and are not
exclusive of any rights and
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remedies that may be available to Beneficiary under Applicable Laws, the other
Loan Documents or otherwise. No failure or delay on the part of Beneficiary in
the exercise of any power, right or remedy under this Deed of Trust shall impair
such power, right or remedy or shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude other or
further exercise of such or any other power, right or remedy.
Section 12.5 Successors and Assigns. This Agreement shall be
binding upon and, subject to the next sentence, inure to the benefit of Trustor
and Beneficiary and their respective successors and assigns. Except as expressly
permitted under the Loan Agreement, Trustor shall not assign or transfer any of
its rights or obligations hereunder without the prior written consent of
Beneficiary. The benefits of this Deed of Trust shall pass automatically with
any assignment of the Secured Obligations (or any portion thereof), to the
extent of such assignment.
Section 12.6 Independence of Covenants. All covenants under this
Deed of Trust shall each be given independent effect so that, if a particular
action or condition is not permitted by any such covenant, the fact that it
would be permitted by another covenant or by an exception thereto shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
Section 12.7 Change of Law. In the event of the passage, after the
date of this Deed of Trust, of any law changing in any way the laws now in force
for the taxation of mortgages, deeds of trust or debts secured by mortgages or
deeds of trust (other than laws imposing taxes on income), or the manner of the
collection of any such taxes, so as to affect adversely the rights of
Beneficiary under this Deed of Trust, then an Event of Default shall be deemed
to have occurred under the Loan Agreement; provided, however, that no Event of
Default shall be deemed to have occurred (i) if Trustor, within thirty (30) days
after the passage of such law, shall assume the payment of any tax or other
charge so imposed upon Beneficiary for the period remaining until discharge in
full of the Secured Obligations; provided, however, that such assumption is
permitted by Applicable Laws, (ii) if the adverse effect upon Beneficiary of
such tax or other charge is not material, or (iii) if and so long as Trustor, at
its expense, shall contest the amount or validity or application of any such tax
or other charge by appropriate legal proceedings promptly initiated and
conducted in good faith and with due diligence; provided that (A) neither the
Real Property nor any substantial part thereof will be in danger of being sold,
forfeited, terminated, canceled, or lost as a result of such contest and (B)
except in the case of a tax or charge junior to the Lien of this Deed of Trust,
Trustor shall have posted such bond or furnished such other security as may be
required by law to release such tax or charge.
Section 12.8 No Waiver. No waiver by Beneficiary of any Default or
breach by Trustor hereunder shall be implied from any omission by Beneficiary to
take action on account of such Default if such Default persists or is repeated,
no express waiver shall affect any Default other than the Default in the waiver,
and such waiver shall be operative only for the time and to the extent therein
stated. Waivers of any covenant, term or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by Beneficiary to or of any act by Trustor
requiring further consent or
42.
approval shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act.
Section 12.9 Notices. All notices and other communications under
this Deed of Trust shall be in writing and shall be personally delivered or sent
by prepaid courier, by overnight, registered or certified mail (postage prepaid)
or by prepaid telex, facsimile or telegram, and shall be deemed given when
received by the intended recipient thereof. Unless otherwise specified in a
notice given in accordance with the foregoing provisions of this Section 12.9,
notices and other communications shall be given to the parties hereto at their
respective addresses (or to their respective telex or facsimile numbers)
indicated in the Loan Agreement or, in the case of the Trustee, Schedule 12.9.
Section 12.10 References to Foreclosure. References hereto to
"foreclosure" and related phrases shall be deemed references to the appropriate
procedure in connection with Trustee's private power of sale, any judicial
foreclosure, proceeding, and any deed given in lieu of any such Trustees sale or
judicial foreclosure.
Section 12.11 Joinder of Foreclosure. Should Beneficiary hold any
other or additional security for the payment and performance of any Secured
Obligation, its sale or foreclosure, upon any default in such payment or
performance, in the sole discretion of Beneficiary, may be prior to, subsequent
to, or joined or otherwise contemporaneous with any sale or foreclosure
hereunder. Except as otherwise provided in the Loan Agreement, in addition to
the rights herein specifically conferred, Beneficiary, at any time and from time
to time, may exercise any right or remedy now or hereafter given by Applicable
Laws to beneficiaries under deeds of trust generally, or to the holders of any
obligations of the kind hereby secured.
Section 12.12 Rights and Obligations of Beneficiary and Trustee. At
any time or from time to time, without liability therefor and without notice,
and without releasing or otherwise affecting the liability of any Person for
payment of any Secured Obligations, Beneficiary at its sole discretion and only
in writing may subordinate the Liens or either of them, or charge hereof to the
extent not prohibited by the Loan Agreement. Beneficiary and Trustee shall
however, promptly upon Trustor's request from time to time, join in the
following actions (including the execution and delivery of documents) as Trustor
determines are reasonably necessary for the development, use and operation of
the Trust Estate: (i) the making of any map or plat of the Real Property, (ii)
the granting, creating, amending and modifying of any customary easements,
covenants, conditions and restrictions with respect to the Real Property and
(iii) the application for and prosecution of any development building, use and
similar permits and land use and utility approvals and installations regarding
the Real Property; provided, however, that Beneficiary and Trustee shall not be
required to join in or take any such action (a) while an Event of Default
exists, (b) to the extent such action would impair the Liens of this Deed of
Trust or the first priority thereof or (c) to the extent prohibited by the Loan
Agreement. Any such request shall be accompanied by an Officer's Certificate (as
defined in the Loan Agreement). Upon written request of Beneficiary and
surrender of this Deed of Trust to Trustee for cancellation, and upon payment to
Trustee of its reasonable fees and expenses actually incurred, Trustee shall
cancel and reconvey this Deed of Trust.
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Section 12.13 Copies. Trustor will promptly give to Beneficiary
copies of all notices of violations relating to the Real Property that Trustor
receives from any Governmental Authority.
Section 12.14 Subordination. At the option of Beneficiary, this
Deed of Trust shall become subject and subordinate in whole or in part (but not
with respect to priority of entitlement to any insurance proceeds, damages,
awards, or compensation resulting from damage to the Real Property or
condemnation or exercise of power of eminent domain), to any and all easements,
contracts of sale and/or any and all leases of all or any part of the Real
Property upon the execution by Beneficiary and recording thereon in the official
records Real Property upon the execution by Beneficiary and recording thereof in
the official records of Tunica County, Mississippi of a unilateral declaration
to that effect. Beneficiary may require the issuance of such title insurance
endorsements to the Title Policy in connection with any such subordination as
Beneficiary, in its judgment, shall determine are appropriate, and Trustor shall
be obligated to pay any cost or expense incurred in connection with the issuance
thereof.
Section 12.15 Personal Property Security Instruments. Trustor
covenants and agrees that if Beneficiary at any time holds additional security
for any Secured Obligations secured hereby, it may enforce the terms thereof or
otherwise realize upon the same, at its option, either before or concurrently
herewith or after a sale is made hereunder, and may apply the proceeds upon the
Secured Obligations without affecting the status or of waiving any right to
exhaust all or any other security, including the security hereunder, and without
waiving any breach or Default or any right or power whether exercised hereunder
or contained herein or in any such other security.
Section 12.16 Suits to Protect Real Property. Trustor covenants and
agrees to appear in and defend any action or proceeding the consequence of
which, if successful, would be that the Liens, or either of them, of this Deed
of Trust would not satisfy the requirements as to extent, perfection or priority
set forth in the Loan Agreement; and to pay all reasonable costs and expenses
actually incurred by Trustee and Beneficiary, including cost of evidence of
title and attorneys' fees in a reasonable sum, in any such action or proceeding
in which Beneficiary and/or Trustee may appear or be made a party.
Section 12.17 Trustor Waiver of Rights. Trustor waives the benefit
of all laws now existing or that hereafter may be enacted providing for (i) any
appraisement before sale of any portion of the Trust Estate, and (ii) the
benefit of all laws that may be hereafter enacted in any way extending the time
for the enforcement of the Secured Obligations or creating or extending a period
of redemption from any sale made in collecting said debt. To the full extent
Trustor may do so, Trustor agrees that Trustor will not at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, valuation stay, extension or redemption,
and Trustor, for Trustor, Trustor's heirs, devisees, representatives, successors
and assigns, and for any and all Persons ever claiming any interest in the Trust
Estate, to the extent permitted by Applicable Laws, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, and
marshaling in the event of foreclosure of the liens hereby created. If any law
referred to in this Section 12.17 and now in force, of which Trustor, Trustor's
heirs, devisees, representatives, successors and assigns or other Person might
take advantage despite this Section 12.17, shall hereafter be repealed or cease
to be in force, such law
44.
shall not thereafter be deemed to preclude the application of this Section
12.17. To the extent permitted by Applicable Laws, Trustor expressly waives and
relinquishes any and all rights and remedies which Trustor may have or be able
to assert by reason of the laws of the State of Mississippi pertaining to the
rights and remedies of sureties.
Section 12.18 Charges for Statements. Trustor agrees to pay
Beneficiary's customary charge, to the maximum amount permitted by Applicable
Laws, for any statement regarding the Secured Obligations requested by Trustor
or in its behalf.
Section 12.19 Complete Agreement. This Deed of Trust together with
the exhibits and schedules hereto, and the other Loan Documents, is intended by
the parties as a final expression of their agreement regarding the subject
matter hereof and is intended as a complete and exclusive statement of the terms
and conditions of such agreement.
Section 12.20 Payments Set Aside. Notwithstanding anything to the
contrary herein contained, this Deed of Trust, the Secured Obligations and the
Lien and Security Interest of this Deed of Trust shall continue to be effective
or be reinstated, as the case may be, if at any time any payment, or any part
thereof, of any or all of the Secured Obligations is rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be restored
or returned by Beneficiary in connection with any bankruptcy, reorganization or
similar proceeding involving Trustor, any other party liable with respect to the
Secured Obligations of otherwise, if the proceeds of the Trust Estate are
required to be returned by Beneficiary under any such circumstances, or if
Beneficiary reasonably elects to return any such payment or proceeds or any part
thereof in its discretion, all as though such payment had not been made or such
proceeds not been received. Without limiting the generality of the foregoing, if
prior to any such rescission, invalidation, declaration, restoration or return,
this Deed of Trust shall have been terminated, released and/or reconveyed and
the Lien and Security Interest or any of the Trust Estate shall have been
released or terminated in connection with such termination, release and/or
reconveyance, this Deed of Trust and the Lien and Security Interest and such
portion of the Trust Estate shall be reinstated in full force and effect, and
such prior termination, release and/or reconveyance shall not diminish,
discharge or otherwise affect the obligations of Trustor in respect of the
amount of the affected payment or application of proceeds, the Lien, the
Security Interest or such portion of the Trust Estate.
Section 12.21 Substitution. Beneficiary may at any time, without
giving notice to Trustor or the original or successor Trustee, and without
regard to the willingness or inability of any original or successor Trustee to
execute this trust, appoint another Person or succession of Persons to act as
Trustee, and such appointee in the execution of this trust shall have all the
powers vested in and obligations imposed upon Trustee. Should Beneficiary be a
corporation or unincorporated association, then any officer thereof may make
such appointment
Section 12.22 Choice of Forum.
12.22.1 Subject to Section 12.22.2. and Section 12.22.3,
all actions or proceedings arising in connection with this Deed of Trust shall
be tried and litigated in state or
45.
Federal courts located in the County of Tunica, State of Mississippi, unless
such actions or proceedings are required to be brought in another court to
obtain subject matter jurisdiction over the matter in controversy. TRUSTOR
WAIVES ANY RIGHT IT MAY HAVE THE DOCTRINE OF FORUM NON CONVENIENS, TO ASSERT
THAT IT IS NOT SUBJECT TO THE JURISDICTION OF SUCH COURTS OR TO OBJECT TO VENUE
TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12.22.1.
12.22.2 Nothing contained in this Section shall preclude
Beneficiary from bringing any action or proceeding arising out of or relating to
this Deed of Trust in any court not referred to in Section 12.22.1. SERVICE OF
PROCESS, SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST TRUSTOR, MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS
ADDRESS INDICATED IN SECTION 12.9 HEREOF.
12.22.3 Notwithstanding Section 12.22.1 hereof, in the
sole and absolute discretion of beneficiary, all actions or proceedings relating
to the Collateral referred to in Article 9 hereof, other than Fixtures, shall be
tried and litigated in any California state court sitting in the County of Los
Angeles, State of California or any federal court sitting in the County of Los
Angeles, State of California. Trustor hereby irrevocably submits to the
jurisdiction of such courts to the extent any proceeding is brought in
accordance with this Section 12.22.3. Trustor irrevocably waives, to the fullest
extent it may effectively do so under Applicable Law, trial by jury and any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Trustor irrevocably consents, to the fullest extent that it
may effectively do so under Applicable Law, to the service of process of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to Trustor at
its said address, such service to become effective thirty (30) days after such
mailing. Nothing shall affect the right of Beneficiary to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against Trustor in any other jurisdiction.
Section 12.23 Regulatory Matters. Whenever in this Deed of Trust a
right is given to Beneficiary, which right is affected by Applicable Gaming Laws
or Liquor Laws or the enforcement of which is subject to Applicable Gaming Laws
or Liquor Laws, the enforcement of any such right shall be subject to Applicable
Gaming Laws and Liquor Laws and approval, if so required, of the applicable
Gaming Authorities or authorities enforcing the Liquor Laws.
Section 12.24 Guarantor Waivers. If and to the extent that Trustor
(for the purposes of this Section 12.24, "Guarantor") would be deemed or
construed to be a guarantor or surety under Applicable Laws with respect to its
obligations hereunder, Guarantor hereby agrees as follows:
12.24.1 Guarantor expressly agrees that until each and
every term, covenant and condition of this Deed of Trust is fully performed,
Guarantor shall not be released by any act or event which, except for this
provision of this Deed of Trust might be deemed a legal or equitable discharge
or exoneration of a surety, or because of any waiver, extension,
46.
modification, forbearance or delay or other act or omission of Beneficiary or
its failure to proceed promptly or otherwise as against Borrowers or any other
Guarantor, as the case may be (individually and collectively, in its or their
capacity as the entity or entities the obligations of which are guaranteed
hereunder by Guarantor, the "Principal") or Guarantor, or because of any action
taken or omitted or circumstance which might vary the risk or affect the rights
or remedies of Guarantor as against the Principal, or because of any further
dealings between the Principal and Beneficiary, whether relating to this Deed of
Trust or otherwise. Guarantor hereby expressly waives and surrenders any defense
to Guarantor's liability under this Deed of Trust based upon any of the
foregoing acts, omissions, things, agreements, waivers or any of them. It is the
purpose and intent of this Deed of Trust that the obligations of Guarantor under
it shall be absolute and unconditional under any and all circumstances, subject
to and in accordance with the terms and conditions of this Deed of Trust.
12.24.2 Without in anyway limiting the provisions of
Section 12.24.1, Guarantor waives:
12.24.2.1 all statutes of limitations as a defense to
any action or proceeding brought against Guarantor by Beneficiary, to the
fullest extent permitted by Applicable Laws.
12.24.2.2 any right it may have to require
Beneficiary to proceed against the Principal or pursue any other remedy in
Beneficiary's power to pursue, it being acknowledged and agreed that the
obligations of Guarantor hereunder are independent of the obligations of the
Principal hereunder, and Beneficiary shall not be required to make any demand
upon, exercise any right to declare a default by, or proceed against, the
Principal prior to proceeding against Guarantor to the full extent of
Guarantor's obligations hereunder,
12.24.2.3 any defense based on any legal disability
of the Principal and any discharge, release or limitation of the liability of
the Principal to Beneficiary, whether consensual or arising by operation of law
or any bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause, or any claim that Guarantor's obligations
exceed or are more burdensome than those of the Principal;
12.24.2.4 all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance of indebtedness, and demands and notices of every kind;
12.24.2.5 any defense based on or "arising out of any
defense that the Principal may have to the payment or performance of any
obligation set forth in this Deed of Trust and
12.24.2.6 until all obligations under this Deed of
Trust have been paid and performed in full, all rights of subrogation and all
rights to enforce any remedy that Guarantor may have against the Principal, all
regardless of whether Guarantor may have made any payments to Beneficiary.
47.
12.24.3 Guarantor assumes full responsibility for keeping
informed of the financial condition and business operations of the Principal and
all other circumstances affecting the Principal's ability to pay for and perform
its obligations, and agrees that Beneficiary shall have no duty to disclose to
Guarantor any information which Beneficiary may receive about the Principal's
financial condition, business operations, or any other circumstances bearing on
its ability to perform.
12.24.4 Notwithstanding anything to the contrary provided
elsewhere herein, in no event shall Guarantor have any liability under this Deed
of Trust beyond its interest in the Real Property, and in no event shall
Guarantor's obligations hereunder be enforced against any property of Guarantor
other than its interest in the Real Property.
Section 12.25 Release. In the event that Trustor is released and
discharged from all of the Secured Obligations pursuant to the Loan documents,
Beneficiary hereby agrees to reconvey, without warranty, the lien of this Deed
of Trust.
Section 12.26 WAIVER OF TRIAL BY JURY. TRUSTOR AND BENEFICIARY
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS DEED OF TRUST OR ANY
OTHER LOAN DOCUMENT OR ANY OTHER ACTION ARISING OUT OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION
OR ACTIONS.
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48.
IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to
be executed on the day and year set forth below, to be effective as of the day
and year first above written.
BARDEN MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company
By: /s/ Michael E. Kelly
---------------------------------
Name: Michael E. Kelly
-------------------------------
Title: EVP, COO, CFO
------------------------------
S-1
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On December 6, 2001 before me, Donna Wolfe, Notary Public,
personally appeared Michael E. Kelly, personally know to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal
/s/ Donna Wolfe
- -----------------------------
NOTARY PUBLIC
[Seal]
My Commission Expires: May 23, 2003