Exhibit 4.18
Prepared By and Upon
Recordation Return To:
Brobeck, Phleger & Harrison LLP
550 South Hope Street
Los Angeles, CA 90071-2604
Attention: John Francis Hilson, Esq.
Telephone: (213) 489-4060
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DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH FINANCING STATEMENT
AND ASSIGNMENT OF RENTS
BARDEN COLORADO GAMING, LLC,
as Trustor
THE PUBLIC TRUSTEE OF THE COUNTY OF GILPIN,
STATE OF COLORADO,
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
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 Colorado Gaming, LLC, a Colorado limited liability
company ("Trustor"), whose principal place of business is located at 163 Madison
Avenue, Suite 2000, Detroit, Michigan 48226, in favor of The Public Trustee of
the County of Gilpin, State of Colorado ("Trustee"), 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 AMOUNT OF PRINCIPAL INDEBTEDNESS TO BE SECURED HEREBY IS UP TO
$15,000,000.
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 Colorado (collectively, the "Applicable Gaming Laws").
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
1.
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 Gilpin, State of Colorado, 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 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; machinery, equipment
(including, without limitation, pipes, furnaces, conveyors, drums, fire
sprinklers and alarm systems, and air conditioning, heating, refrigerating,
electronic monitoring, stoves, ovens, ranges,
2.
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,
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, 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.
3.
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 Colorado or any
Bankruptcy Law).
GRANTING CLAUSE FIVE
[Options to Purchase, etc.]
TOGETHER WITH, all right, title and interest of Trustor in and to
all options and other rights to purchase or lease the Real Property or any
portion thereof or interest therein, if any, and any greater estate in the Real
Property owned or hereafter acquired by Trustor.
GRANTING CLAUSE SIX
[Personal Property]
TOGETHER WITH, all right, title and interest of Trustor in and to
all Tangible Property and Intangible Property (except, with respect to Gaming
Licenses, as prohibited by Applicable Gaming Laws) now or at any time hereafter
located on or appurtenant to the Real Property and used or useful in connection
with the ownership, management or operation of the Real Property, including,
without limitation, the Personal Property.
4.
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 Real Property and/or
Personal Property and (vi) parking or similar services or rights afforded to all
or any part of the Real Property.
5.
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.
The entire estate, property and interest hereby conveyed to Trustee
pursuant to Granting Clauses One through Thirteen, 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");
6.
C. 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;
D. 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:
"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.
7.
"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, 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
8.
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.
"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.
9.
"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
Colorado; 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
(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
10.
(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, or the Improvements, including, without limitation, the name "Fitzgeralds
Black Hawk Casino/Hotel" 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 Improvements or in which Trustor has rights,
with the exclusive right to use such names, logos and designs wherever they are
now or hereafter used in connection with the Land or the 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 Improvements, including,
without limitation, any interest as a licensee or franchisee and, in each
11.
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 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 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 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 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 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 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, 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.
"Inventory" has the meaning set forth in Section 9.1.6.
"Land" has the meaning set forth in Granting Clause One.
12.
"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, including, but not limited to, Inventory, communication systems,
visual and electronic surveillance systems and transportation systems and not
constituting a part of the real property subject to the real property lien of
this Deed of Trust and including all property and materials
13.
stored on all or any portion of the Real Property 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 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 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, 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, along
with any and all products and proceeds derived or to be derived therefrom,
including without limitation, any and all present and future accounts, contract
rights, chattel paper, instruments, and documents that may be derived from the
sale, lease or other disposition of any of the foregoing, and any rights of
Trustor to collect or enforce payment thereof, as well as enforce any guaranties
of the foregoing and security therefor.
"Title Policy" means the title insurance policy or policies in favor
of Beneficiary insuring the Lien of this Deed of Trust.
"Trust Estate" has the meaning set forth hereinabove.
"UCC" means the Uniform Commercial Code (as amended from time to
time) of the State of California.
Section 1.2 Related Matters.
1.2.1 Terms Used in the UCC. Unless the context clearly otherwise
requires, all lower case terms used in Section 9 of this Deed of Trust and not
otherwise defined herein that are used or defined in Article 9 (or any
equivalent subpart) of the UCC have the same meanings herein.
1.2.2 Construction. Unless the context of this Deed of Trust clearly
requires otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, and "including" is not
limiting. The words "hereof," "herein," "hereby," "hereunder" and similar terms
in this Deed of Trust refer to this Deed of Trust as a whole including the
Preamble, the Recitals and all Schedules and Exhibits, but subject to Section
1.4 of the Loan Agreement) and not to any particular provision of this Deed of
Trust. Article, section, subsection, exhibit, recital, preamble and schedule
references in this Deed of Trust are to
14.
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 Colorado.
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]
15.
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 Gilpin County, Colorado, 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
16.
subject to the Permitted Liens, and has valid right, full power and legal
authority, subject to Applicable Gaming Laws, to mortgage and pledge the same as
provided herein, and Trustor shall defend the Trust Estate against all claims
and demands of all Persons at any time claiming the same or any interest therein
adverse to Beneficiary (except for Permitted Liens) and Beneficiary may, subject
to Applicable Gaming Laws, at all times peaceably and quietly enter upon, hold,
occupy and enjoy the entire Trust Estate in accordance with the terms hereof.
Section 3.6 Non-Contravention. Neither the execution, delivery or
performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any 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 Black Hawk
17.
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 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
18.
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 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.
19.
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 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
20.
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.
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
91-2118674;
(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
21.
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.
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
22.
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.
ARTICLE 5.
[RESERVED]
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
Section 6.1 Restrictive Uses. Trustor covenants not to suffer any Liens
against the Trust Estate (other than Permitted Liens).
Section 6.2 Transferability. Trustor shall not suffer or permit any sale,
conveyance, mortgage, pledge, hypothecation, encumbrance, lease, assignment or
other transfer of the Trust Estate or any portion thereof or any interest
therein without in each instance obtaining the prior written consent of
Beneficiary, except as permitted under the Loan Agreement.
Section 6.3 No Cooperative or Condominium. Trustor shall not operate or
permit the Real Property to be operated as a cooperative or condominium building
or buildings in which the tenants or occupants participate in the ownership,
control or management of the Real Property or any part thereof, as tenant
stockholders or otherwise.
Section 6.4 Impairment of Deed of Trust. Trustor shall not suffer waste of
the Real Property or do or suffer any act or thing to be done, or omit to do any
act or thing, if such act or thing, or such forbearance or omission, would
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
23.
the Improvements or Real Property or materially and adversely affect Trustor's
use or operation of the Improvements or Real Property ("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 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
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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.
Section 8.2 Remedies. Beneficiary shall be and hereby is authorized and
empowered, for and in the name and on behalf of Trustor, and shall be and hereby
is irrevocably made, constituted and appointed Trustor's true and lawful
attorney in fact, coupled with an interest and with full power of substitution,
delegation and revocation, to do the following at any time after 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
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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 Deliver to Trustee a written declaration of default for sale,
and a written notice of default and election to cause the Trust Estate to be
sold, which notice Trustee or Beneficiary shall cause to be duly filed for
record.
8.2.5 Declare the Secured Obligations to become immediately due and
payable pursuant to Section 9.1 of the Loan Agreement. If the Beneficiary so
declares and Trustor fails to make such payment as and when due, then
Beneficiary may waive its Liens against any parcel of the Real Property or all
or any portion of the Fixtures or Personal Property attached to the Real
Property, to the extent such property is determined to be environmentally
impaired, and to exercise any and all rights of an unsecured creditor against
Trustor and all of Trustor's assets for the recovery of any deficiency,
including, but not limited to, seeking an attachment order. TRUSTOR ACKNOWLEDGES
AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXPRESS OR IMPLIED, IN
THIS DEED OF TRUST OR IN ANY OF THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT
LIMITATION, ANY NONRECOURSE OR EXCULPATORY LANGUAGE, IF ANY), TRUSTOR SHALL BE
PERSONALLY LIABLE FOR ANY RECOVERY DESCRIBED IN THIS PARAGRAPH 8.2.5. AND SUCH
LIABILITY SHALL NOT BE LIMITED TO THE AMOUNT OF THE INDEBTEDNESS CURRENTLY
OUTSTANDING UNDER THE LOAN AGREEMENT.
8.2.6 With respect to any Personal Property, proceed as to both the
real and personal property in accordance with Beneficiary's rights and remedies
in respect of the Real Property, or proceed to sell said Personal Property
separately and without regard to the Real Property in accordance with
Beneficiary's rights and remedies; and/or
8.2.7 Pursue any and all other remedies it may have, at law or in
equity, or under any other document or instrument, except as otherwise provided
in the Loan Agreement.
Section 8.3 Power of Sale. Should Beneficiary elect to foreclose by
exercise of the power of sale herein contained, Beneficiary shall notify Trustee
and shall deposit with Trustee this Deed of Trust and such receipts and evidence
of expenditures made and secured hereby as Trustee may require.
8.3.1 Upon receipt of such notice from Beneficiary, Trustee shall
cause to be recorded, published and delivered to Trustor notices of default and
sale to be given in
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accordance with the provisions of Applicable Laws. Trustee shall, without demand
on Trustor, after lapse of such time as may then be required by Applicable Laws
and after recordation of such notice of default and after notice of sale having
been given as required by law, sell the Trust Estate at the time and place of
sale fixed by it in said notice of sale, either as a whole, or in separate lots
or parcels or items as Trustee shall deem expedient or as Beneficiary may
request, and in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States payable at the time of
sale. After the expiration of the required redemption periods, Trustee shall
deliver to such purchaser or purchasers thereof its good and sufficient deed or
deeds conveying the property so sold, but without any covenant or warranty,
express or implied. The recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any Person, including, without
limitation, Trustor or Beneficiary, may purchase at such sale and Trustor hereby
covenants to warrant and defend the title of such purchaser or purchasers
against the claims of all Persons claiming by, through or under Trustor. If
allowed by law, Beneficiary, if it is the purchaser, may apply the amount of the
Secured Obligations then due and payable toward payment of the purchase price.
Trustor hereby waives its right, if any, to require that the Real Property be
sold as separate tracts or units in the event of foreclosure.
8.3.2 Trustee, upon such sale and after expiration of the applicable
redemption periods, to the extent permitted by Applicable Laws, shall make
(without any covenant or warranty, express or implied), execute and, after due
payment made, deliver to purchaser or purchasers, or his or their heirs or
assigns, a deed or deeds, or other record or records of interest, as the case
may be, in and to the Real Property so sold that shall convey to the purchaser
all the title and interest of Trustor in the Real Property (or the portion
thereof sold), and after deducting all costs, fees and expenses of Trustee and
of this Deed of Trust, including costs of evidence of title in connection with
sale, shall apply the proceeds of sale to payment of (i) all sums expended under
the terms hereof, not then repaid, with accrued interest at the Default Rate and
(ii) all other sums then secured hereby and the remainder, if any, to the Person
or Persons legally entitled thereto.
8.3.3 Trustee may postpone sale of all or any portion of the Trust
Estate by public announcement at such time and place of sale, or as otherwise
permitted by Applicable Laws, and from time to time thereafter may postpone such
sale by public announcement at the time fixed by the preceding postponement or
subsequently noticed sale, and without further notice make such sale at the time
fixed by the last postponement, or may, in its discretion, give a new notice of
sale. Beneficiary may rescind any notice of default at any time before Trustee's
sale by executing a notice of rescission or withdrawal of sale and causing the
recording of same. The recordation of such notice of rescission or withdrawal of
sale shall constitute a cancellation of any prior declaration of default and
demand for sale. The exercise by Beneficiary of the right of rescission shall
not constitute a waiver of any default then existing or subsequently occurring,
or impair the right of Beneficiary to execute other declarations of default and
demand for sale, or notices of default and of election to cause the Real
Property to be sold nor otherwise affect the
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Loan Documents or this Deed of Trust, or any of the rights, obligations or
remedies of Beneficiary or Trustee hereunder.
Section 8.4 Intentionally Omitted.
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.
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
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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, 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");
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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 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
30.
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 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
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(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
33.
Collateral shall not apply, and (ii) the sale of the Collateral in conjunction
with and as one parcel with said Real Property (or any portion thereof) shall be
deemed to be a commercially reasonable manner of sale; or (b) to proceed as to
the Collateral separately from the Land and Improvements, in which event the
requirement of reasonable notice shall be met by mailing notice of the sale,
postage prepaid, to the Trustor or any other person entitled thereto at least
ten (10) days before the time of the sale or other disposition of any of the
Collateral.
Section 9.3 Expenses. Reasonable expenses actually incurred of retaking,
holding, preparing for sale, selling or the like shall be borne by Trustor and
shall include Beneficiary's and Trustee's reasonable attorneys' fees, charges
and disbursements (including, without limitation, any and all costs of appeal).
Section 9.4 Fixture Filing.
9.4.1 This Deed of Trust shall be effective as a Financing Statement
filed as a fixture filing from the date of the recording hereof in accordance
with the Uniform Commercial Code. In connection therewith, the addresses of
Trustor as debtor ("Debtor") and Beneficiary as secured party ("Secured Party")
are set forth on Schedule 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 Colorado Gaming, LLC, a Colorado
limited liability company.
9.4.1.5 The record owner or lessee of the Real Property is:
Barden Colorado Gaming, LLC, a Colorado limited liability company
9.4.2 In the event Trustor shall fail beyond any applicable notice
and grace periods, to make any payment or perform any covenant related to any
security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within 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
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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 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
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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 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,
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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 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 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:
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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).
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
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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 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
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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 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
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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 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
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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 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
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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.
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 Gilpin County, Colorado 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
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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 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
Colorado 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
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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 Federal courts located in the County of Gilpin, State of
Colorado, 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
45.
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, 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.
46.
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.
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.
47.
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.
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 COLORADO GAMING, LLC,
a Colorado limited liability company
By: /s/ Michael E. Kelly
------------------------------------
Name: Michael E. Kelly
--------------------------------
Title: EVP, COO, CFO
--------------------------------
S-1
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On December 6, 2001 before me, Donna Wolfe, Notary Public,
personally appeared Michael E. Kelly personally known 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.
Donna Wolfe [SEAL]
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SIGNATURE OF NOTARY PUBLIC My Commission Expires: May 28, 2003