EXHIBIT 10.10
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (this "DEED OF TRUST"), dated as of April 30,
1998, by SPEAKEASY GAMING OF LAS VEGAS, INC., a Nevada corporation having an
office c/o Mountaineer Park, Inc., Route 2 South, Chester, Virginia 26034
("TRUSTOR"), to NEVADA TITLE COMPANY, a Nevada corporation, having an office
at 3320 West Sahara Avenue, Suite 200, Las Vegas, Nevada 89102 ("TRUSTEE"),
for the benefit of MADELEINE LLC, a New York limited liability company,
having an office at 450 Park Avenue, New York, New York 10022
("BENEFICIARY").
W I T N E S S E T H:
Trustor hereby covenants and agrees as follows:
SECTION 1
GRANT OF SECURITY INTERESTS
1.01. Trustor irrevocably grants, bargains, sells, transfers
and assigns to Trustee, in trust, for the benefit of Beneficiary, with power
of sale, all of the following-described property, whether now owned or
hereafter acquired by Trustor (which property is hereinafter collectively
referred to as the "PROPERTY"):
1.01.1. The real property and all estate, right, title and
interest therein, situated, lying and being in the County of Clark, State of
Nevada, as more particularly described on EXHIBIT A attached hereto and made
a part hereof (the "REAL PROPERTY").
1.01.2. All buildings, structures and improvements of every
nature whatsoever now or hereafter situated on the Real Property (the
"IMPROVEMENTS"), including all goods, fixtures, inventory and articles of
personal property and accessions thereof and renewals, replacements thereof
and substitutions therefor, if any (including, but not limited to, beds,
bureaus, chiffoniers, chests, chairs, desks, lamps, mirrors, bookcases,
tables, rugs, carpeting, drapes, draperies, curtains, shades, venetian
blinds, screens, paintings, hangings, pictures, divans, couches, luggage
carts, luggage racks, stools, sofas, chinaware, linens, pillows, blankets,
glassware, foodcarts, cookware, dry cleaning facilities, dining room wagons,
keys or other entry systems, bars, bar fixtures, liquor and other drink
dispensers, icemakers, radios, television sets, intercom and paging
equipment, electric and electronic equipment, dictating equipment, private
telephone systems, medical equipment, potted plants, heating, lighting and
plumbing fixtures, fire prevention and extinguishing apparatus, cooling and
air-conditioning
systems, elevators, escalators, fittings, plants, apparatus, stoves, ranges,
refrigerators, laundry machines, tools, machinery, engines, dynamos, motors,
boilers, incinerators, switchboards, conduits, compressors, vacuum cleaning
systems, floor cleaning, waxing and polishing equipment, call systems,
brackets, electrical signs, bulbs, bells, ash and fuel, conveyors, cabinets,
lockers, shelving, spotlighting equipment, dishwashers, garbage disposals,
washers and dryers), other customary hotel equipment, fittings, building
materials, machinery, equipment, furniture and furnishings and personal
property of every nature whatsoever now or hereafter owned by Trustor or in
which Trustor has rights and used or intended to be used in connection with
or with the operation of the Real Property and/or the Improvements, including
all improvements, landscaping, fixtures, trade fixtures, equipment and
building materials and supplies (whether or not annexed thereto or located
thereon) now or hereafter used in connection therewith, including all
machinery, materials, appliances and fixtures for generating or distributing
air, water, heat, electricity, light, fuel, refrigeration, for ventilating,
cooling or sanitary purposes, for the exclusion of vermin or insects and for
the removal of dust, refuse or garbage, telephone, computer, surveillance,
security and other electronic systems, engines, machinery, boilers, furnaces,
oil burners, coolers, refrigeration plants, motors, irrigating systems,
plumbing, water systems and power systems, incinerators, communication
systems, appliances, and all other and further installations and appliances
on the Real Property and/or the Improvements, all of said items, whether now
or hereafter located thereon, shall, at the option of Beneficiary, be deemed
to be for all purposes of this instrument a part of the realty and including
all extensions, additions, improvements, betterments, renewals, substitutions
and replacements to any of the foregoing, whether such fixtures, furnishings
and personal property are actually located on or adjacent to the Real
Property and/or the Improvements or not, and whether in storage or otherwise,
wheresoever the same may be located (including any and all personal property
named in any Uniform Commercial Code financing statement executed in
conjunction with or in furtherance of this Deed of Trust).
1.01.3. All easements, reciprocal easement and similar agreements,
rights of way, strips and gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water rights and powers (whether
riparian, appropriative or otherwise and whether or not appurtenant), all
shares of stock evidencing any such water rights, mineral rights, air rights
and all development rights, estates, leases, rights, titles, interest,
privileges, liberties, tenements, hereditaments, and appurtenances
whatsoever, in any way belonging, relating or appertaining to any of the Real
Property and/or the Improvements, or which hereafter shall in any way belong,
relate or be appurtenant thereto, whether now owned or hereafter acquired by
Trustor, and the reversion and reversions, remainder and remainders, rents,
issues, profits thereof, and all estate, right, title, interest, property,
possession, claim and demand whatsoever at law, as well as in equity, of
Trustor of, in and to the same, including:
(a) All of lessor's interest in any and all leases, licenses
(except licenses that are not assignable and/or transferable) and occupancy
agreements of the Real Property and/or the Improvements, or any portion
thereof, now or hereafter owned or entered
into by Trustor or any other party claiming by, through or under Trustor (all
of said leases, licenses and occupancy agreements and any and all interest
therein shall hereinafter be referred to as the "LEASES"), together with all
rents, royalties, profits, issues, revenues, receipts, income, deposits,
operating revenues, cash, benefits, account receivables and accounts which
may accrue from the Real Property, the Improvements and/or any business or
other activity conducted thereon from time to time, including, without
limitation, all revenues and credit card receipts collected from guest rooms,
restaurants, bars, meeting rooms, banquet rooms and recreational facilities,
all receivables, customer obligations, installment payment obligations and
other obligations now existing or hereafter arising or created out of the
sale, lease, sublease, license, concession or other grant of the right of the
use and occupancy of property or rendering of services by Trustor or any
operator or manager of the hotel or the commercial space located in the
Improvements or acquired from others (including, without limitation, from the
rental of any office space, retail space, guest rooms or other space, halls,
stores, and offices, and deposits securing reservations of such space),
license, lease, sublease and concession fees and rentals, health club
membership fees, food and beverage wholesale and retail sales, service
charges, vending machine sales and proceeds, if any, from business
interruption or other loss of income insurance (collectively, the "RENTS")
together with all benefits and advantages to be derived from the Leases
including, without limitation, all rights under any guarantees and other
security delivered in connection with the Leases, it being agreed that the
foregoing assignment of Leases and Rents is a perfected, absolute and present
assignment; PROVIDED, HOWEVER, that until a default (beyond applicable grace
and cure periods, if any) shall occur under this Deed of Trust, the Note (as
hereinafter defined) and/or any of the other Loan Documents (as hereinafter
defined), Beneficiary grants Trustor a license to receive, collect and enjoy
the Rents.
(b) All causes of action, claims, compensation, judgments,
insurance proceeds, awards of damages and settlements hereafter made
resulting from condemnation proceedings or the taking of the Property or any
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking, by casualty or otherwise) to any and all of the
Property or any part thereof, or to any rights appurtenant thereto, including
any award for change of grade or streets.
(c) All option rights, books and records, and general
intangibles of Trustor relating to the Property, and all franchise
agreements, accounts, contract rights, instruments, chattel paper and other
rights of Trustor for payment of money, for property sold or lent, for
services rendered, for money lent, or for advances or deposits made relating
to the Property, including all tax refunds and refunds of any other monies
paid by or on behalf of Trustor relating to the Property and all contract
rights, plans, specifications and other similar documents, rights as
declarant or developer under any declaration or plan.
(d) All rights of Trustor to use, in connection with the Real
Property and/or the Improvements, any and all plans and specifications,
designs, drawings and other
matters prepared for any construction on or improvements to the Real Property
and/or the Improvements and all studies, data and drawings related thereto.
(e) All rights of Trustor to use, in connection with the
Property, any contracts executed by Trustor with any provider of goods or
services for or in connection with any construction undertaken or to be
undertaken or services performed or to be performed in connection with the
Property (as any of the foregoing may be amended and/or restated from time to
time).
(f) Any and all permits, licenses (except licenses that are
not assignable and/or transferable), certificates, approvals and
authorizations, however characterized, issued or in any way furnished whether
necessary or not, for the construction, operation, use, occupancy and/or sale
of the Real Property, Improvements and/or Leases including building permits,
environmental certificates, certificates of operation, warranties, guarantees
and general intangibles.
(g) All proceeds of the conversion, voluntary or involuntary,
of the items listed in subparagraphs (a) through (f) above into cash,
liquidated claims or other property.
1.01.4. All rights of Trustor, if any, in and to the names, trade
names, service marks, logos, designs, copyrights, patents and other similar
propriety rights, to the extent assignable under the terms of any applicable
license, franchise or similar agreement, and all registrations and
applications for registration of such rights, used by Trustor in the
operation and identification of the Real Property and/or the Improvements or
any portion thereof, and the goodwill associated therewith.
TO HAVE AND TO HOLD the Property, together with the rights,
privileges and appurtenances belonging thereto, unto Trustee and its
successors and assigns, forever, subject, however, to the absolute assignment
of Leases and Rents contained herein; and Trustor does hereby bind itself and
its successors and assigns, to specially warrant and forever defend the
Property unto such Trustee, its successors, substitutes and assigns, against
all persons whomsoever claiming, including all rights and benefits hereunder
by virtue of the homestead exemption laws of the State in which the Real
Property and/or the Improvements are located (which rights and benefits are
hereby expressly released and waived), for the uses and purposes herein set
forth.
Trustor makes the foregoing grant to Trustee to hold the Property
in trust for the benefit of Beneficiary and for the purposes and upon the
terms and conditions hereinafter set forth. Trustor does hereby empower
Beneficiary, its agents and attorneys, to collect, sue for, settle,
compromise and give acquittance for all such rents, issues, profits and
proceeds.
1.02. This Deed of Trust is for the purpose of securing:
1.02.1. Performance of each and every term, covenant and condition
incorporated by reference or contained herein;
1.02.2. Payment of the indebtedness evidenced by that certain
Promissory Note (the "Term Note") dated the date hereof, from Trustor and
Mountaineer Park, Inc., a West Virginia corporation ("Mountaineer"), as
makers, to Beneficiary, as payee, in the original principal amount of Twenty
Seven Million Eight Hundred Sixty Five Thousand and 00/100 Dollars
($27,865,000.00), or so much thereof as shall have been advanced and remain
outstanding from time to time, and any extension, modification or renewal
thereof, evidencing the loan from Beneficiary to Trustor and Mountaineer (the
"Term Loan").
1.02.3. Payment of the indebtedness evidenced by a certain
Promissory Note (the "Line Note") dated the date hereof, from Trustor and
Mountaineer, as makers, to Beneficiary, as payee, in the original principal
amount of Ten Million Three Hundred Seventy Six Thousand Five Hundred and
00/100 Dollars, or so much thereof as shall have been advanced and remain
outstanding from time to time and any extension, modification or renewal
thereof, evidencing the loan from Beneficiary to Trustor and Mountaineer (the
"Line Loan").
1.02.4. Payment of the indebtedness evidenced by a certain
Promissory Note (the "Construction Note") dated the date hereof, from Trustor
and Mountaineer, as makers to Beneficiary, as payee, in the original
principal amount of One Million Seven Hundred Thousand and 00/100 Dollars,
and any extension, modification or renewal thereof, evidencing the loan from
Beneficiary to Trustor and Mountaineer (the "Construction Loan").
1.02.5. The Term Note, Line Note and Construction Note are
hereinafter collectively referred to as the "NOTE". The Term Loan, Line Loan
and Construction Loan are hereinafter collectively referred to as the "LOAN".
1.02.6. Payment and performance of each and every term, covenant and
condition required to be paid or performed by Trustor and/or Mountaineer under a
certain Third Amended and Restated Term Loan Agreement dated as of the date
hereof between Beneficiary, as lender, and Trustor and Mountaineer, as
borrowers, (as modified from time to time the "LOAN AGREEMENT");
1.02.7. Performance of each and every other instrument and agreement
securing payment of the Note or executed in connection therewith, including,
without limitation the Cheyenne Deed of Trust, the West Virginia Deed of Trust
and the General Security Agreement (each as defined in the Loan Agreement), as
any of the foregoing documents may be amended or otherwise modified from time to
time (the Note, the Loan Agreement and such other instruments and agreements
being hereinafter referred to collectively as the "LOAN DOCUMENTS"); and
1.02.8 Payment of such additional sums as may hereafter be
advanced pursuant to this Deed of Trust, the Loan Agreement, or any other
Loan Document for the account of Trustor or Mountaineer, or their respective
assigns by Beneficiary, with interest thereon as provided herein or in the
applicable Loan Document.
1.03. Trustor acknowledges and agrees: (i) that this Deed of
Trust shall constitute a Security Agreement within the meaning of the Nevada
Uniform Commercial Code (the "CODE") with respect to all sums on deposit with
Beneficiary ("DEPOSITS") and with respect to any property included in the
definition herein of the words "Property" which property may not be deemed to
form a part of the real estate described in EXHIBIT A or may not constitute a
"fixture" (within the meaning of NRS 104.9313 of the Code), and all
replacements of such property, and the proceeds thereof (said property,
replacements, substitutions, additions and the proceeds thereof being
sometimes herein collectively referred to as the "COLLATERAL"); (ii) that a
security interest in and to the Collateral and the Deposits is hereby granted
to Beneficiary; and (iii) that the Deposits and all of Trustor's rights,
title and interest therein are hereby pledged and assigned to Beneficiary;
all to secure payment of the indebtedness evidenced by the Note and to secure
performance by Trustor of the terms, covenants and provisions contained in
this Deed of Trust. In addition to the foregoing, the lien and security
interest hereof will automatically attach without further act to all
after-acquired Collateral.
1.04. To the extent permitted by law, with respect to all of the
goods and personal property described herein which are or are to become
fixtures on the Real Property described in EXHIBIT A attached hereto and/or
the Improvements, this instrument, upon recording in the real estate records
of the proper office shall constitute a "FIXTURE FILING" within the meaning
of NRS 104.9402(6) and NRS 104.9313 of the Code. Trustor is the record owner
of the land described in EXHIBIT A attached hereto. The address of
Beneficiary set forth in the opening paragraph of this Deed of Trust is the
address of the secured party from which information concerning the security
interest granted to Beneficiary may be obtained.
SECTION 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUSTOR
2.01. Trustor represents and warrants that:
2.01.1. Trustor has full, complete and marketable fee simple title
to the Property, subject only to the title encumbrances specified in the
title insurance policy issued to and approved by Beneficiary concurrently
with the execution and delivery of this Deed of Trust (the "Permitted
Encumbrances").
2.01.2. This Deed of Trust is and will remain a valid and
enforceable first lien on the Property, subject only to the Permitted
Encumbrances.
2.01.3. Trustor has not performed any act and is not bound by any
instrument which would prevent Beneficiary from enforcing any of the Loan
Documents including the Note and this Deed of Trust.
2.01.4. Trustor has all requisite power and corporate authority to
own and operate the Property, and, subject to Section 2.15 hereof, will use
its best efforts to obtain as promptly as possible after the date hereof and
maintain in full force and effect, all licenses, certificates, approvals,
permits and authorizations necessary to own, use, occupy and operate its
properties and businesses as currently operated and conducted or proposed to
be operated and conducted.
2.01.5. The Loan Documents (including the Note and this Deed of
Trust) and the transactions in connection with which the Note was given are
valid and binding obligations of the parties thereto, enforceable in
accordance with their terms.
2.01.6. Except as set forth in the survey dated as of the 3rd day
of March, 1998 (the "Survey") delivered to Beneficiary concurrently herewith,
the Real Property is accessible by way of abutting public streets or to
public streets over properly granted or dedicated private rights-of-way.
2.01.7. Except as indicated by the Permitted Encumbrances and the
Survey, no person or entity other than Trustor, its management company,
lessee of the casino and hotel guests has any right to occupy any portion of
the Property.
2.01.8. The Leases and Rents are subject to no encumbrances of any
kind except for this Deed of Trust.
2.01.9. To Trustor's best knowledge, neither Trustor nor to
Trustor's knowledge the Property (i) is in violation of or in default under
any applicable laws or regulations; (ii) is in violation of or in default
under any order, writ, injunction, demand or decree of any court or any
person or entity; and (iii) is in violation of or in default under any
indenture, agreement or other instrument, except to the extent that the
pre-existing franchise agreement (the "Pre-Existing Days Inn Franchise
Agreement") dated _____________ between Cheyenne Hotel Casino, Inc. and Days
Inn of America, Inc. remains in effect with respect to the Property and is in
default.
2.01.10. To the best of Trustor's knowledge, the Real Property and
the Improvements have been issued all required certificates of occupancy, if
any, and Trustor has received no written notice that such certificates of
occupancy, if any, have been suspended or revoked.
2.01.11. Trustor has not granted any option, right of first
refusal and/or right of first offer pursuant to which any other party could
acquire any right to purchase or lease any interest in the Real Property
and/or the Improvements.
2.01.12. There are no management agreements affecting the Real
Property or any portion thereof, except to the extent any third party
management agreements for the Property exist with the prior owner, all of
which shall be terminated upon execution of this Deed of Trust.
2.01.13. To Trustor's best knowledge, there are no actions, suits
or proceedings pending against Trustor and/or the Property, at law or in
equity, or by any person or entity, including without limitation, any
federal, state, municipal or other governmental department, commission,
board, agency or instrumentality.
2.02. Trustor shall complete and maintain in a good and
workmanlike manner any building or other improvements which are being or in
the future may be constructed on the Property and pay when due all claims for
labor performed and materials furnished therefor. Trustor shall comply with
all laws, rules, ordinances, regulations, covenants, conditions,
restrictions, easements and agreements pertaining to the Property or
Trustor's use thereof. Trustor shall not commit, suffer or permit any act to
be done in or upon the Property in violation of law.
2.03. Trustor shall not initiate or acquiesce in any change in
any zoning or other land use classification now or hereafter in effect and
affecting the Property or any part thereof, nor shall Trustor otherwise
change or attempt to change the use of the Property or any portion thereof
without in each case obtaining Beneficiary's prior written consent thereto,
PROVIDED, HOWEVER, that Beneficiary shall not unreasonably withhold its
consent to an application by Grantor for a change in zoning to the extent
that such application will enhance the ability of Trustor to operate the
Property for gaming purposes or will otherwise improve the operations of the
Property as a hotel.
2.04. Trustor shall not commit or permit waste on the Property
and will keep and maintain or cause to be kept and maintained at its own
expense the Property in a first-class condition and state of repair (the term
first-class condition and state of repair shall be deemed to be a condition
and state of repair equal to or better than the existing condition and state
of repair of the Property).
2.05. Trustor shall not permit any building, structure, fixture
or other improvement to be erected, removed, demolished, or materially
changed or altered without the prior written consent of Beneficiary. Trustor
will not remove or permit the removal of any of the personal property or any
part thereof (including renewals, replacements and other after acquired
property) from the Real Property and/or the Improvements without the prior
written consent of Beneficiary; PROVIDED, HOWEVER, that, no consent shall be
required to replace obsolete and worn out articles concurrently with the
replacement or renewal thereof with property of at least equal value and of
equal usefulness in the operation of the Real Property and/or the
Improvements. Trustor will promptly notify Beneficiary of any fire or other
casualty causing damage to the Property. Trustor will promptly and in good
and workmanlike manner repair and restore any
improvement which may be damaged or destroyed to the condition existing
immediately prior to such damage or destruction. Trustor will promptly
replace any lost, stolen, damaged or destroyed personal property.
2.06. Trustor shall pay and discharge (i) Beneficiary's legal
fees and disbursements in connection with the preparation, execution and
delivery of this Deed of Trust and any of the other Loan Documents and the
consummation of the transactions contemplated herein and therein as more
particularly set forth in Sections 5.01, 5.03 and 10.04 of the Loan Agreement
(ii) except as may be expressly limited in Section 10.04 of the Loan
Agreement, Beneficiary's and Trustee's fees and expenses in connection with
its performance of due diligence, including fees and expenses incurred by
Beneficiary with respect to third-party providers of due diligence reports,
(iii) Beneficiary's title insurance premium, fees and expenses and the cost
of affirmative insurance and endorsements, (iv) all costs to record documents
and instruments required by this Deed of Trust and the other Loan Documents,
and all mortgage, documentary, recording and other similar taxes and expenses
relating to the Note, this Deed of Trust and any of the other Loan Documents,
and (v) Trustee's fees and expenses in connection with its obligations
hereunder (including Trustee's fees and expenses in connection with a sale of
the Property, whether completed or not), which amounts shall become due upon
demand by either Beneficiary or Trustee
2.07. Trustor shall pay when due, all taxes, impositions,
assessments, levies, utility fees and all other fees and charges of every
kind and nature, whether of a like or different nature, imposed upon or
assessed against or which may become a lien on the Property, or any part
thereof, or arising from, by reason of or in connection with, the use thereof
or this Deed of Trust. In addition, Trustor shall file all required tax
forms with the appropriate governmental authorities on or before the day on
which they become due. Trustor will promptly deliver to Beneficiary receipts
evidencing payment of taxes, impositions, assessments, levies, utility fees
and all other fees and charges as required in the Loan Agreement.
Beneficiary may require Trustor to obtain and pay for a tax service
satisfactory to Beneficiary in order to assure Beneficiary such taxes are
paid.
2.08. If any suit, action, arbitration, or other proceeding
shall be instituted for any purpose affecting the Property, any portion
thereof, any interest therein, title thereto or this Deed of Trust, or should
Trustor receive any notice from any governmental agency relating to the
structure, use or occupancy of the Property, Trustor shall immediately upon
service thereof but in any event not later than five (5) business days after
service of process with respect thereto, or the obtaining of knowledge
thereof, deliver to Beneficiary true copies of each notice, petition,
summons, complaint, notice of motion, order to show cause, and all other
process, pleadings and papers, however designated, served in any action or
proceeding. Immediately upon becoming aware of any development or other
information which may materially and adversely affect the business,
prospects, profits or condition (financial or otherwise) of Trustor or the
Property or the ability of Trustor to perform the obligations secured hereby,
Trustor shall promptly and in
writing notify Beneficiary of the nature of such development or information
and such anticipated effect.
2.09. Trustor promises and agrees that if during the existence
of this Deed of Trust there be commenced or pending any suit, action,
arbitration, or other proceeding for any purpose affecting the Property, any
portion thereof, any interest therein, title thereto or this Deed of Trust,
or if any adverse claim for or against said Property, or any portion thereof,
any interest therein, title thereto or this Deed of Trust, be made or
asserted, Trustor shall appear in and defend any such proceeding and will pay
all costs and damages arising because of such proceeding. Beneficiary may
elect to appear in any such proceeding in its discretion. If Beneficiary
elects to appear in any such action or proceeding, Beneficiary shall have the
right to retain counsel of its choice. Trustor shall be solely responsible
for any and all expenses and costs, including the reasonable fees of counsel
retained by Beneficiary, which are incurred pursuant to this section. If
Beneficiary elects to appear in any action or proceeding, Trustor agrees to
indemnify Beneficiary against, release Beneficiary from, and hold Beneficiary
harmless from any damages, liability, costs, expenses, litigation, or claims
incurred in or in connection with such action or appearance, except as a
result of Beneficiary's gross negligence or willful misconduct.
2.10. Trustor shall not permit or suffer the filing of any
mechanics', materialmen's, or other liens against the Property, any part
thereof, any interest therein, or the revenue, rents, issues, income and
profits arising therefrom. If any such lien shall be filed against the
Property, any part thereof, or any interest therein, Trustor agrees to bond
or discharge the same of record within thirty (30) days after the same shall
have been filed.
2.11. Trustor shall take any and all actions which may be
necessary to prevent any third parties from acquiring any prescriptive
easement upon, over or across any part of the Property, or from acquiring any
rights whatsoever to or against the Property by virtue of adverse possession.
2.12. Trustor shall not enter into any Lease (or amendment
thereof) for all or any portion of the Property without the prior written
consent of Beneficiary. All such Leases shall be on a lease form
satisfactory to Beneficiary, and shall be on terms and conditions and with a
tenant satisfactory to Beneficiary, which consent shall not be unreasonably
withheld if Trustor enters into a Lease with a duly licensed and reputable
casino operator reasonably satisfactory to Beneficiary. Trustor shall pay on
demand all costs of Beneficiary (including, attorneys' fees and costs) in
connection with any review and/or approval pursuant to this Section 2.12,
Section 2.13 and Section 2.14.
2.13. Trustor shall not without Beneficiary's prior written
consent (i) enter into any assignment or pledge or agreement to assign or
pledge any of Trustor's interest in the Leases and Rents; (ii) accept any
payment of any installment of Rents more than thirty (30) days before the due
date thereof, excluding reasonable security deposits and payment of last
month's rent; (iii) except as otherwise expressly provided hereinabove or in
the Loan Agreement, enter into
any Lease or management agreement for all or any portion of the Property;
(iv) make any Lease or other contract for goods and/or services with any
entity that is a successor, affiliate or subsidiary of Trustor, other than
the "Approved Management Agreement" (as defined in the Loan Agreement); or
(v) amend, modify or waive any rights under any Lease, the Approved
Management Agreement or any other or management agreement. Trustor shall
promptly advise Beneficiary in writing of the giving of any notice by the
lessee under any Lease. Trustor shall execute and deliver, on request of
Beneficiary, such instruments as Beneficiary may deem useful or required to
permit Beneficiary to cure any default under any of the foregoing or permit
Beneficiary to take such other actions as Beneficiary considers desirable to
cure or remedy the matter in default and preserve the interest of Beneficiary
in such agreements and the Property.
2.14. Trustor shall at its sole cost and expense enforce, short
of termination thereof, the performance of all terms, covenants and
conditions of the Leases to be performed by the lessees thereunder. Trustor
shall appear in and defend any action or proceeding arising under, growing
out of or in any manner connected with the Leases or the obligations, duties
or liabilities of Trustor or of any tenants thereunder.
2.15. Trustor shall at all times, be in compliance with any and
all approvals, licenses and permits required to be obtained pursuant to
Nevada law; provided, however that to the extent that any such approval,
license or permit is not in place solely by reason of the acts or omission of
Cheyenne Hotel Casino, Inc., Trustor shall use its best efforts to obtain, or
cause to be obtained, at Trustor's sole cost and expense, such approval,
license or permit. Nothing in the Note, this Deed of Trust or in any of the
other Loan Documents shall be construed to obligate Trustor to obtain from
the State of Nevada licenses or permits to conduct gaming on the Real
Property, but all gaming activities coducted on any portion of the Real
Property shall be condcuted in accordance with applicable law.
2.16. Nothing in the Note, this Deed of Trust or in any of the
other Loan Documents, shall be construed to obligate Beneficiary, expressly
or by implication, to perform any of the covenants of landlord under any
Leases or to pay any sum or money or damages therein provided to be paid by
the landlord each and all of which covenants and payments Trustor agrees to
perform and pay or cause to be performed and paid.
2.17. To the extent not provided by applicable law, all future
Leases shall provide that, in the event of the enforcement by Trustee or
Beneficiary of the remedies provided for by law or by this Deed of Trust, the
tenant thereunder shall, if requested by Beneficiary or by any person
succeeding to the interest of Trustor as the result of said enforcement,
automatically become the tenant of any such successor-in-interest, without
any change in the terms or other provisions of such Lease; PROVIDED, HOWEVER,
that said successor-in-interest shall not be bound by (i) any payment of Rent
for more than one (1) month in advance, except prepayments in the nature of
security for the performance by tenant of its obligations under said Lease
not in excess of an amount equal to one (1) month's rental, (ii) any
amendment or modification in such Lease made without the consent of
Beneficiary or any successor-in-interest; or (iii) any prior acts
and/or omissions in violation of any of the terms, covenants and conditions
contained in the Lease.
2.18. The lessee under the Leases may and shall rely upon the
receipt of any notice from Beneficiary that Trustor is in default thereunder
and thereafter Beneficiary, or Beneficiary's designee, shall be paid all
rents due under the Leases until the lessees thereunder are notified
otherwise in writing by Beneficiary or until directed otherwise by a final
judgment of a court of competent jurisdiction. All amounts collected
hereunder, after deducting the expenses of operating the Property and after
deducting the expenses of collection and all other expenses incurred
hereunder, including attorneys' fees, shall be applied in such manner as
Beneficiary may elect in its sole and absolute discretion. Trustor shall
cause to be included as terms in all Leases hereafter executed or renewed the
provisions of the first sentence of this Section 2.18, and shall further
cause the refusal of any lessee under any such Lease to pay all rents due
under the Leases to Beneficiary as aforesaid to be a breach of such Lease by
the lessee thereof. Nothing herein shall be deemed to impose on Beneficiary
any obligation to operate or maintain the Property or to enforce any Lease.
Notwithstanding the conveyance or transfer of title to any or all of the
Property to any lessee under any of the Leases, the lessee's leasehold estate
under such Lease shall not merge into the fee estate and the lessee shall
remain obligated under such lease as assigned by this Deed of Trust.
2.19. All lessees under the Leases shall agree that the Leases
are and shall be subordinate hereto and that upon any sale or deed in lieu of
sale hereunder such lessees shall attorn to the purchaser or grantee, as the
case may be, and recognize the same as lessor under the Leases as fully as if
such purchaser or grantee had been named as lessor under the Leases, but
without any claim or offset against such purchaser or grantee for any
liability of any previous lessor. Such lessees shall, from time to time
during the term hereof, within ten (10) days after demand therefor by
Beneficiary, execute and deliver to Beneficiary, or any party designated by
Beneficiary, a certificate in recordable form certifying that attached
thereto is a true and correct copy of such lessee's Lease, the term of such
Lease, the date to which all rentals and other charges have been paid, the
amount of any security deposit, that no rent has been prepaid or discounted,
that such Lease is in full force and effect, and that no defaults have
occurred thereunder (or specifying the nature of such defaults), together
with such other information with respect to such Lease and/or lessee as
Beneficiary may reasonably request.
2.20. Trustor will pay all amounts required to be paid under the
Note, as and when required under the terms of the Note, and Trustor will
comply with all terms and conditions of the Loan Agreement within the time
periods specified in the Loan Agreement for such compliance.
2.21. Trustor agrees at any time and from time to time during
the term hereof and within ten (10) days after demand therefor from
Beneficiary, to execute and deliver to Beneficiary, or any party designated
by Beneficiary, a certificate in recordable form certifying the amount then
due pursuant to this Deed of Trust and the obligations secured hereby, the
terms
of payment thereof, the dates to which payments have been paid, that this
Deed of Trust and all instruments and obligations secured hereby are in full
force and effect and that there are no defenses or offsets thereto, or
specifying in what regards this Deed of Trust or such obligations are not in
full force and effect and the nature of any defense or offsets thereto,
together with such other information as Beneficiary may request.
2.22. Notwithstanding anything in this Deed of Trust to the
contrary, and except to the extent expressly permitted under the terms of the
Loan Agreement, Trustor shall not enter into leases, conditional sale
agreements and/or security agreements relating to fixtures, trade fixtures,
furniture, furnishings and equipment without the prior written consent of
Beneficiary.
2.23. Trustor will enforce the covenants, agreements, terms and
conditions to be performed by any other parties to any agreements, bonds,
leases, licenses, rental agreements, geological surveys, plans and
specifications, documents, chattel paper, instruments, and other contracts
and policies of insurance encumbered hereby in accordance with their terms
and will not enter into, modify or amend or permit the modification or
amendment thereof and will not cancel, surrender, fail to renew or permit the
cancellation, surrender or failure to renew of any of the foregoing without,
in each case, the prior written consent of Beneficiary.
2.24. Trustor shall execute, acknowledge and deliver to
Beneficiary, and, if applicable, cause to be recorded or filed at Trustor's
cost and expense, any and all such mortgages, assignments, transfers,
assurances, financing statements and other instruments and documents and do
such acts as Beneficiary shall from time to time require for the better
perfecting, assuring, conveying, assigning, transferring and confirming unto
Beneficiary the Property and rights herein conveyed or assigned or intended
now or hereafter so to be. Unless prohibited by law, Trustor hereby
authorizes Beneficiary to execute and file any such financing statements or
continuation statements on Trustor's behalf. The parties agree that this
Deed of Trust shall constitute a security agreement under the Code and that a
carbon, photographic or other reproduction of this Deed of Trust or of a
financing statement shall be sufficient as a financing statement. Trustor
shall not change its name, identity or corporate structure from and after the
date hereof without notifying Beneficiary at least sixty (60) days in advance.
2.25. Trustor shall procure, pay for and maintain and shall not
transfer, assign or pledge or agree to transfer, assign or pledge any of
Trustor's interest in the permits, licenses and other authorizations required
by any law, rule or regulation to be procured and/or maintained by Trustor,
and for the lawful and proper operation and maintenance of the Property,
including, without limitation, certificates of completion and occupancy
permits required for the legal use, occupancy and operation of the Real
Property as a hotel and any applicable liquor license.
2.26. Except as expressly permitted pursuant to the Loan
Agreement, Trustor shall not further encumber, create, assume, suffer to
exist, alienate, hypothecate or grant a security interest in or grant a lien,
charge or any other interest whatsoever in or with respect to
the Property (whether superior or inferior to the liens of this Deed of Trust
and the other documents executed in connection herewith) in favor of any
person or entity.
2.27. [Intentionally Deleted].
2.28. All contracts and licenses entered into by Trustor or on
behalf of Trustor that relate to the Property are and shall be subordinate
hereto.
2.29. If, at any time or times, regardless of the existence of a
default (except with respect to clauses (iii) and (iv) below, which shall be
subject to a default having occurred) Beneficiary shall employ counsel or
other advisors for advice or other representation or shall incur legal or
other costs and expenses in connection with:
(i) any amendment, modification or waiver, or consent
with respect to, any of the Loan Documents (unless or except to the extent
such amendment, modification, waiver or consent is being made at
Beneficiary's request and for Beneficiary's benefit);
(ii) any litigation, contest, dispute, suit, proceeding
or action (whether instituted by Beneficiary, Trustor or any other party) in
any way relating to the Property, any of the Loan Documents or any other
agreements to be executed or delivered in connection herewith, unless Trustor
prevails against Beneficiary therein;
(iii) any attempt to enforce any rights of Beneficiary
against Trustor, or any other party, that may be obligated to Beneficiary by
virtue of any of the Loan Documents, unless Trustor prevails against
Beneficiary therein;
(iv) any attempt to verify, protect, collect, sell,
liquidate or otherwise dispose of the Property; or
(v) any exercise of remedies, collection of amounts due
under any of the Loan Documents, or protection of the security for the
obligations, or the enforcement of any covenant or agreement by Trustor,
under the Note or any of the other Loan Documents, unless Trustor prevails
against therein;
then, and in each and any such event, the attorneys' and other parties' fees
actually and necessarily arising from such services, including those of any
trial court proceedings, appellate proceedings, bankruptcy proceedings,
arbitration proceedings and mediation proceedings and all expenses, costs,
charges and other fees incurred by such counsel and others in any way or
respect arising in connection with or relating to any of the events or
actions described in this Section shall be payable, on demand, by Trustor to
Beneficiary and shall be additional obligations of Trustor secured by this
Deed of Trust and all of the other Loan Documents.
2.30. Trustor will not conceal from creditors any of its assets
and will not participate in the concealing of assets of any other person or
entity.
2.31. Trustor is not insolvent and the consummation of the
transactions contemplated by this Deed of Trust and any of the other Loan
Documents will not render Trustor insolvent.
SECTION 3
CASUALTY, CONDEMNATION AND INSURANCE
3.01. Until the Loan has been fully satisfied, Trustor shall
obtain, or cause to be obtained, and shall maintain or cause to be maintained
with respect to the Property, at their own cost and expense, and shall
deposit with Beneficiary on or before the Closing Date the following (unless
otherwise indicated):
(a) PROPERTY INSURANCE. To the extent the Property is
improved, Trustor shall maintain an "All Risk," including flood, perils
policy covering the building and improvements, and any other permanent
structures for one hundred percent (100%) of the replacement cost. Upon the
request of Beneficiary replacement cost for insurance purposes will be
established by an independent appraiser selected by Beneficiary. The policy
will include Agreed Amount (waiving co-insurance), Replacement Cost Valuation
and Building Ordinance endorsements. The policy will include a standard
Beneficiary clause (ISO form or equivalent) and provide that all losses in
excess of Five Hundred Thousand Dollars ($500,000) be adjusted with
Beneficiary.
(b) PERSONAL PROPERTY. (including machinery, equipment,
furniture, fixtures, stock.) Trustor shall maintain "All Risk" property
coverage for all personal property owned, leased or for which Trustor's are
legally liable (to the extent such personal property exists).
The policy(ies) providing real and personal property
coverages may include a deductible of no more than Ten Thousand Dollars
($10,000) for any single occurrence. Flood and Earthquake deductibles can be
no more than One Hundred Thousand Dollars ($100,000), if a separate
deductible applies.
(c) Rental loss and/or business interruption insurance in
an amount equal to the greater of (A) estimated annual gross revenues for
twelve (12) months from the operation of the Real Property or (B) the
projected operating expenses (including debt service) for twelve (12) months
for the maintenance and operation of the Real Property. The amount of such
insurance shall be increased from time to time during the term of this Deed
of Trust as and when the estimate of (or the actual) gross revenue or
operating expenses, as may be applicable, increases.
(d) CRIME INSURANCE. To the extent Trustor maintains a
business on the Property, Trustor shall, within ninety (90) days from the
date hereof, obtain and at all times thereafter maintain a comprehensive
crime policy, including the following coverages:
(i) Employee Dishonesty - One Million Dollars
($1,000,000);
(ii) Money and Securities - (inside) - Five Hundred
Thousand Dollars ($500,000);
(iii) Money and Securities - (outside) - Five Hundred
Thousand Dollars ($500,000);
(iv) Depositor's Forgery - One Million Dollars
($1,000,000);
(v) Computer Fraud - One Million Dollars
($1,000,000).
The policy may contain deductibles of no greater than One
Hundred Thousand Dollars ($100,000) for Employee Dishonesty and Fifty
Thousand Dollars ($50,000) for all other coverages listed above.
(e) COMMERCIAL GENERAL LIABILITY (1993 FORM OR
EQUIVALENT). Trustor shall maintain a Commercial General Liability policy
with a One Million Dollar ($1,000,000) combined single limit for bodily
injury and property damage, including Contractual Liability, and all standard
policy form extensions. The policy must provide Two Million Dollar
($2,000,000) general aggregate (per location, if multi-location risk) and be
written on an "occurrence form". If the general liability policy contains a
self-insured retention, it shall be no greater than Ten Thousand Dollars
($10,000) per occurrence, with an aggregate retention of no more than One
Hundred Thousand Dollars ($100,000).
The policy shall be endorsed to include Beneficiary as an
additional insured. Definition of additional insured shall include all
officers, directors, employees, agents and representatives of the additional
insured. The coverage for the additional insured shall apply on a primary
basis irrespective of any other insurance whether collectible or not.
(f) AUTOMOBILE. To the extent Trustor owns any
automobiles, Trustor shall within ninety (90) days from the date hereof,
obtain and at all times thereafter maintain a comprehensive Automobile
Liability Insurance Policy written under coverage "symbol 1," providing a One
Million Dollar ($1,000,000) combined single limit for bodily injury and
property damage covering all owned, non-owned and hired vehicles of the
Trustor. If a policy contains a self-insured retention it shall be no
greater than Ten Thousand Dollars ($10,000) per occurrence, with an aggregate
retention of no more than One Hundred Thousand Dollars ($100,000).
(g) WORKERS COMPENSATION AND EMPLOYERS LIABILITY
INSURANCE. To the extent Trustor employs any employees, Trustor shall within
ninety (90) days from the date hereof, obtain and at all times thereafter
maintain standard Workers Compensation Policy, as required by law.
(h) UMBRELLA LIABILITY. An Umbrella Liability policy
shall be purchased with a limit of not less than Twenty-Five Million Dollars
($25,000,000) providing excess coverage over all limits and coverages
indicated in paragraphs (e), (f) and (g) above (to the extent Trustor owns no
automobiles and employs no employees then Trustor shall maintain such excess
coverage with respect to (e)). The limits can be obtained by a combination
of Primary and Excess Umbrella polices, provided that all layers follow form
with the underlying policies indicated in (e), (f) and (g) and are written on
an "occurrence" form. This policy shall be endorsed to include the
Beneficiary as an additional insured, as defined under paragraph (e) above.
If Trustor's general liability and automobile policies
include a self-insured retention, it is agreed and fully understood that
Trustor is solely responsible for payment of all amounts due within said
self-insured retentions. Any Indemnification/Hold Harmless provision is
extended to cover all liabilities associated with said self-insured
retentions.
(i) All policies indicated above shall be written
with insurance companies licensed and admitted to do
business in the State of Nevada and rated no lower than
"AVIII" in the most recent edition of A. M. Best and "AA"
in the most recent edition of Standard & Poor's, or such
other carrier reasonably acceptable to Beneficiary. All
policies discussed above shall be endorsed to provide
that in the event of a cancellation, non-renewal or
material modification, Beneficiary shall receive thirty
(30) days prior written notice thereof.
All policies providing property (first party) coverages
under this agreement shall provide that any loss be payable to Beneficiary
notwithstanding (i) any act or negligence by Trustor or any lessee or other
occupant of the Property which might otherwise result in forfeiture of said
insurance, (ii) use of all or any portion of the Property for purposes more
hazardous than permitted by such policy, (iii) any sale or other proceeding
pursuant hereto, or (iv) any change in title to or ownership of the Property
or any portion thereof.
Trustor shall be furnished with a Certificate of Insurance
executed by an authorized agent evidencing compliance with all insurance
provisions above on an annual basis. Certificates of Insurance executed by
an authorized agent of each carrier providing insurance evidencing
continuation of all coverages will be provided on the Closing Date and thirty
(30) days prior to the expiration of each policy. All certificates and other
notices related to the insurance program shall be delivered to Beneficiary
concurrently with the delivery of such certificates or notices to Trustor.
Trustor shall obtain and maintain any other insurance
reasonably requested by Beneficiary in such amounts and covering such risks
as may be reasonably required by Beneficiary.
3.02. Trustor shall immediately notify Beneficiary of the
pendency of any proceedings for the condemnation of the Property, any part
thereof, or any interest therein upon obtaining knowledge of the institution
of the pendency of such proceedings. Beneficiary may, but shall not be
required to, participate in any such proceedings and Trustor from time to
time will deliver to Beneficiary all instruments requested by it to permit
such participation. Trustor shall pay all of Beneficiary's costs and
expenses, including attorneys' fees, incurred in any such proceedings. In
the event of such condemnation proceedings, any award or compensation shall
be paid to Beneficiary and shall be applied, after payment of all costs and
expenses of Beneficiary or Trustee incurred in collecting the same, in such
manner as Beneficiary elects in its sole and absolute discretion, without
regard to whether or not its security hereunder has been impaired. For the
purposes hereof, any proceeding to acquire any interest in or affecting the
value of the Property, or seeking damages therefor, including severance or
change of grade, whether by court action or purchase in lieu thereof, shall
be deemed a proceeding for condemnation and any award for inverse
condemnation shall be deemed condemnation proceeds.
3.03. Notwithstanding any provision in this Deed of Trust to the
contrary but subject to Section 3.04 below, Beneficiary may, in its sole and
absolute discretion, whether or not its security hereunder has been impaired,
and notwithstanding any other provision hereof, direct that any casualty
insurance or condemnation proceeds, or any portion thereof, remaining after
payment of all costs and expenses of Beneficiary or Trustee in collecting the
same ("NET PROCEEDS"), be paid, in such manner as Beneficiary elects,
including to apply the Net Proceeds to any and all amounts due hereunder or
under any of the other Loan Documents without regard to whether or not its
security hereunder has been impaired. If Beneficiary elects to apply all or
any portion of the Net Proceeds for the restoration and repair of the
improvements and/or personal property, then such Net Proceeds shall be
disbursed by Beneficiary pursuant to such disbursement procedures as
Beneficiary may provide, in its sole and absolute discretion. The amount of
such proceeds used toward payment of the cost of repair or restoration that
is released to Trustor shall not be deemed a payment of any indebtedness or
obligation secured hereby and shall be disbursed to Trustor pursuant to such
disbursement procedures as Beneficiary may provide, in its sole and absolute
discretion, to ensure the full, prompt and lien-free completion of such
restoration, repair or alteration
3.04. Notwithstanding the foregoing provisions of Section 3.03,
provided no Event of Default which remains uncured has occurred with respect
to the Loan, and provided, that, the restoration costs for damage due to an
insured casualty is $250,000.00 or less, any Net Proceeds in respect of
casualty insurance shall, at the request of the Trustor made in writing to
the Beneficiary, be disbursed by the Beneficiary to Trustor, in accordance
the conditions of Beneficiary's construction provisions contained in the Loan
Agreement (or, if
there are none, in accordance with customary construction loan disbursement
procedures), for the payment (or reimbursement) of necessary costs actually
incurred by Trustor in the restoration or replacement of the Improvements or
the Personalty, under the following conditions:
(a) Prior to the commencement of the restoration or
replacement of the Improvements or the Personalty, other than such work as
may be reasonably necessary to protect the same from further damage, the
Beneficiary shall have approved the Plans and Specifications for such
restoration or replacement, which approval shall not be unreasonably
withheld, delayed or conditioned;
(b) In the event the Net Proceeds are not sufficient, in
the reasonable judgment of the Beneficiary, for the purpose of accomplishing
the restoration or replacement of the Improvements or the Personalty in
accordance with the Plans and Specifications aforesaid, Trustor shall provide
evidence reasonably satisfactory to the Beneficiary of the availability of
additional funds for the purpose of accomplishing the restoration or
replacement of the Improvements or the Personalty and such additional funds
shall be expended for that purpose before the Beneficiary shall have any
obligation to disburse insurance proceeds; and
(c) Each request for an advance of the Net Proceeds shall
be made to the Beneficiary at least two (2) business days prior to the date
upon which such advance is sought and shall be accompanied by evidence
reasonably satisfactory to the Beneficiary to the effect that (i) all work
then completed has been performed substantially in accordance with the Plans
and Specifications aforesaid and in accordance with all applicable building
codes and similar governmental requirements; (i) the amount requested to be
advanced is required for payments due to the contractor responsible for the
work, or to subcontractors, materialmen, laborers, engineers, architects or
to other persons responsible for services, labor or materials in connection
with the restoration or replacement of the Improvements or the Personalty, or
for third party fees or the like necessarily incurred in connection with the
same; (ii) all governmental permits and consents required for the performance
of the work have been obtained and are in full force and effect; (iii) funds
remaining available to Trustor and the Beneficiary for the purpose of
accomplishing the restoration or replacement of the Improvements or the
Personalty are sufficient for that purpose; and (iv) there has not been filed
with respect the Property any mechanic's or similar lien, or notice of
intention to file the same, which has not been dismissed, bonded or satisfied
of record.
SECTION 4
TRANSFERS, ETC.
4.01 Trustor shall not, directly or indirectly, sell, transfer,
assign, mortgage, pledge, hypothecate or encumber, including the granting of
any option to mortgage, pledge, hypothecate or encumber, whether voluntary or
involuntary, by agreement, operation of law or
otherwise, of the whole or any portion of Trustor's right, title or interest
in and to the Collateral, the Property or Trustor, or any portion thereof or
any right or interest therein, without the prior written consent of
Beneficiary.
SECTION 5
TRUSTEE AND BENEFICIARY'S RIGHTS
5.01. The waiver or release by Beneficiary or Trustee of any
default or of any of the provisions, covenants and conditions hereof on the
part of Trustor to be kept and performed shall not be a waiver or release of
any preceding or subsequent breach of the same or any other provision,
covenant or condition contained herein. The subsequent acceptance of any sum
in payment of any indebtedness secured hereby or any other payment hereunder
by Trustor to Beneficiary or Trustee shall not be construed to be a waiver or
release of any preceding breach by Trustor of any provision, covenant or
condition of this Deed of Trust other than the failure of Trustor to pay the
particular sum so accepted, regardless of Beneficiary's or Trustee's
knowledge of such preceding breach at the time of acceptance of such payment.
No payment by Trustor or receipt by Beneficiary of a lesser amount than the
amount therein provided shall be deemed to be other than on account of the
earliest sums due and payable hereunder, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Beneficiary may accept any check or
payment without prejudice to Beneficiary's right to recover the balance of
such sum or pursue any other remedy provided in this Deed of Trust. The
consent by Beneficiary or Trustee to any matter or event requiring such
consent shall not constitute a waiver of the necessity for such consent to
any subsequent matter or event.
5.02. Beneficiary shall be subrogated to the lien of any and all
prior encumbrances, liens, or charges paid or discharged from the proceeds of
the Note, and even though said prior liens may have been released of record,
the repayment of the Note shall be secured by such liens on the portions of
the Property affected thereby to the extent of such payments. In
consideration of the advances made to Trustor, Trustor hereby waives and
releases all demands and causes of action for offsets, payments and rentals
to, and in connection with said prior indebtedness.
5.03. Notwithstanding the right otherwise provided to Trustor to
collect rent and other payments pursuant to any Leases while Trustor is not
in default under the Note, this Deed of Trust or any other Loan Document, if
there is filed any petition in bankruptcy by or against any lessee under any
of the Leases or there is appointed a receiver or trustee to take possession
of all or a substantial portion of the assets of such lessee or there is a
general assignment by such lessee for the benefit of creditors, or any action
is taken by or against such lessee under any state or federal insolvency law
or bankruptcy act, or any similar law now or hereafter in effect, Beneficiary
is appointed a creditor of such lessee and is entitled to recover on any
claim or right
of recovery that Trustor may have against such lessee or its receiver or
trustee; PROVIDED, HOWEVER, that Beneficiary shall not be obligated to pursue
any such claim or right of recovery. Beneficiary may apply any such recovery
against any obligation secured hereby in such manner as it may deem
desirable, in its sole and absolute discretion.
5.04. Beneficiary may, upon not less than one (1) business day
advance notice, make or cause to be made reasonable entries upon and
inspection of the Property, provided however, Beneficiary shall use
reasonable efforts not to interfere with any use or enjoyment of the guests,
occupants or visitors of the Property.
5.05. Beneficiary may, at any time, by instrument in writing,
appoint a successor or successors to Trustee named herein or acting
hereunder, which instrument, executed and acknowledged by Beneficiary, and
recorded in the Office of the County Recorder, Clark County, Nevada, shall be
conclusive proof of the proper substitution of such successor trustee, who
shall have all the estate, powers, duties and trusts in the premises vested
in or conferred on the original trustee. If there be more than one trustee,
either may act alone and execute these trusts upon the request of Beneficiary
and his acts shall be deemed to be the acts of all trustees, and the recital
in any conveyance executed by such sole trustee of such requests shall be
conclusive evidence thereof, and of the authority of such sole trustee to act.
5.06. Without affecting the liability of Trustor or any other
person, except any person expressly released in writing, for payment of any
indebtedness secured hereby or for performance of any of the obligations or
any of the terms, covenants and conditions hereof, and without affecting the
rights of Trustee and Beneficiary with respect to any security not expressly
released in writing, at any time and from time to time, without notice or
consent other than consent of Beneficiary, Trustee and/or Beneficiary may:
(a) Release any person liable for payment of all or any
part of the indebtedness or for the performance of any obligation;
(b) Make any agreement extending the time or otherwise
altering the terms of payment of all or any part of said indebtedness or
modifying or waiving any obligation or subordinating, modifying or otherwise
dealing with the lien or charge hereof;
(c) Exercise or refrain from exercising or waive any
right either of them may have;
(d) Accept additional security of any kind; and
(e) Release or otherwise deal with any property, real or
personal, securing the obligations secured hereby.
5.07. If, after an event of default, Trustor fails to execute,
acknowledge or deliver to Beneficiary any and all mortgages, assignments,
transfers, assurances, financing
statements, maps, and other instruments or documents required to be so
executed, acknowledged or delivered hereunder, within fifteen (15) days after
Beneficiary's demand or such lesser period as may be provided elsewhere
herein, then Trustor hereby appoints Beneficiary as Trustor's true and lawful
attorney-in-fact to act in Trustor's name, place and stead to execute,
acknowledge and deliver the same.
5.08. Whenever under any provision of this Deed of Trust Trustor
shall be obligated to make any payment or expenditure, or to do any act or
thing, or to incur any liability whatsoever, and Trustor fails, refuses or
neglects to perform as herein required, Beneficiary shall be entitled, but
shall not be obligated, to make any such payment or expenditure or to do any
such act or thing, or to incur any such liability, all on behalf of and at
the cost and for the account of Trustor. Beneficiary shall not be bound to
inquire into the validity of any apparent or threatened tax, assessment,
adverse title, lien, encumbrance, claim, or charge before making an advance
for the purpose of preventing, removing or paying the same. Beneficiary
shall be subrogated to all rights, equities and liens discharged by any such
expenditure.
5.09. A. It is expressly agreed that the entire unpaid
principal amount of the Note, together with any and all accrued and unpaid
interest and any and all other sums due thereunder, under this Deed of Trust
and/or under any of the other Loan Documents shall, except as otherwise
explicitly provided hereunder, under the Note and/or under any of the other
Loan Documents, at the option of Beneficiary, become immediately due and
payable (a) without notice, upon the failure of Trustor to make any payment
of principal, interest or other sums due hereunder, under the Note and/or
under any of the other Loan Documents (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); (b) Trustor fails to
pay any interest due under the Note and/or any other Loan Document or any fee
or other amount (whether by scheduled payment, acceleration, demand or
otherwise) within three (3) business days of the date when due; PROVIDED
HOWEVER, that failure to make payments when due with respect to the
obligations of this Subsection 5.09.(b) more than three (3) times in any
twelve (12) month period shall constitute an event of default hereunder; (c)
upon the occurrence of any "Event of Default" (as defined in the Loan
Agreement) or (d) upon the occurrence and continuation for ten (10) days
after notice from Beneficiary to Trustor of any other default hereunder;
PROVIDED, HOWEVER, that in the case of a default which cannot with due
diligence be cured within such ten (10) day period, Trustor shall have up to
ninety (90) days from the date of such notice to cure such default, provided
that such default is capable of being cured within such ninety (90) day
period, as determined by Beneficiary, and Trustor commences to cure such
default within such ten (10) day period and thereafter diligently prosecutes
such cure to completion.
B. It shall also be a default hereunder if Trustor breaches (beyond
applicable notice and cure periods, if any) any representation, warranty or
covenant contained in any of the Loan Documents. In addition, Trustor shall be
in default hereunder (without any obligation on the part of Beneficiary to
provide any notice and cure period) if (a) any license or permit necessary for
operation of the Property or any portion thereof is revoked or any proceeding
to revoke the same is commenced or threatened; (b) if without Beneficiary's
prior consent,
(i) except as provided under the Loan Agreement, the hotel manager for the
Real Property under the Approved Management Agreement (as defined in the Loan
Agreement) (or any successor management agreement) resigns or is removed, or
(ii) the ownership, management or control of such hotel manager is
transferred to a person or entity other than an affiliate of the Trustor, or
(iii) except as permitted in the Loan Agreement, there is any material change
in the Approved Management Agreement (or any successor management agreement);
(c) [intentionally deleted]; (d) if without Beneficiary's prior consent,
there is any material change in the Approved Franchise Agreement (as defined
in Section 7.02) (or any successor franchise agreement) or if the Approved
Franchise Agreement expires pursuant to its terms or a successor franchise
agreement is executed by Trustor and such successor franchise agreement is
not approved by Beneficiary; (e) if a default has occurred and continues
beyond any applicable cure period under the Approved Franchise Agreement (or
any successor franchise agreement) if such default permits the franchisor to
terminate or cancel the Approved Franchise Agreement (or any successor
franchise agreement); or (f) if Trustor ceases to do business as a hotel or
motel on the Real Property or terminates such business for any reason
whatsoever (other than temporary cessation in connection with any renovations
to the Real Property which does not exceed such reasonable number of days
from the date hereof necessary for Trustor to undertake the renovation of the
Real Property). Trustor shall give Beneficiary prompt notice of the
occurrence of any default under this Section 5.09B. but such notice shall not
be a condition precedent to Beneficiary exercising any of its remedies
hereunder, under the Note and/or under any of the other Loan Documents.
Notwithstanding the foregoing, if any event of default under Section
5.09(B)(a) hereof shall occur, and such default arises solely from (i) a
default by Cheyenne Hotel Casino, Inc. under the Pre-Existing Days Inn
Franchise Agreement or (ii) the operation of the Property by Cheyenne Hotel
Casino, Inc. prior to the date hereof, then no default shall be deemed to
have occurred; PROVIDED HOWEVER that Trustor hereby covenants and agrees that
from and after the date hereof, Trustor will use its best and diligent
efforts to cure as promptly as possible any such default or enter into a new
franchise agreement or pursuant to the Loan Agreement, operate the Property
independently (it being expressly understood that Trustor shall not be
obligated to expend any monies to cure any monetary default of Cheyenne Hotel
Casino, Inc.).
5.10. The collection of rents and the application thereof by
Beneficiary or any receiver obtained by Beneficiary shall not cure or waive
any default or notice thereof, or invalidate any act of Beneficiary pursuant
thereto. In the exercise of the powers herein granted Beneficiary,
Beneficiary shall not be deemed to have affirmed any Lease or subordinated
the lien hereof thereto nor shall any liability be asserted or enforced
against Beneficiary, all such liability being hereby expressly waived and
released by Trustor. Neither Beneficiary nor any receiver shall be obligated
to perform or discharge any obligation, duty or liability under any Lease
under or by reason of the assignment contained in this Deed of Trust and
Trustor shall and does hereby agree to indemnify Beneficiary and such
receiver from and to hold them harmless of and from any and all liability,
loss, costs, charges, penalties, obligations, expenses, attorneys' fees,
litigation, judgments, damages, claims and demands which they may or might
incur by reason of, arising from, or in connection with the Leases, such
assignment, any alleged obligations or
undertakings on their part to perform or discharge any of the terms,
covenants or agreements contained in the Leases, any alleged affirmation of
or subordination to the Leases, or any action taken by Beneficiary or such
receiver pursuant to any provision of this Deed of Trust. Without limiting
the generality of the foregoing, no security deposited by the lessee with the
lessor under the terms of any Lease hereby assigned has been transferred to
Beneficiary, and Beneficiary assumes no liability for any security so
deposited.
5.11. In the event of any default hereunder or in the
performance of any of the obligations secured hereby, Beneficiary may
exercise any and all of its rights provided hereunder or by law. Without
limiting the generality of the foregoing, any personal property may, at the
sole and absolute option of Beneficiary (i) be sold hereunder, (ii) be sold
pursuant to the Code, or (iii) be dealt with by Beneficiary in any other
manner provided by statute, law or equity. The proceeds of any such sale may
be applied against the amounts due and owing Beneficiary hereunder. Without
limiting the foregoing, Beneficiary may require Trustor to assemble the
personal property and make it available to Beneficiary at a place to be
designated by Beneficiary. In the event of default, Beneficiary shall be the
attorney-in-fact of Trustor with respect to any and all matters pertaining to
the Property with full power and authority to give instructions with respect
to the collection and remittance of payments, to endorse checks, to enforce
the rights and remedies of Trustor, and to execute on behalf of Trustor and
in Trustor's name any instruction, agreement or other writing required
therefor. This power shall be irrevocable and deemed to be a power coupled
with an interest. Beneficiary may, in its sole discretion, appoint Trustee
as the agent of Beneficiary for the purpose of disposition of the personal
property in accordance with the Code. Trustor acknowledges and agrees that a
disposition of the personal property in accordance with Beneficiary's rights
and remedies in respect to real property as hereinabove provided is a
commercially reasonable disposition thereof.
5.12. In the event of any default hereunder or in the
performance of the obligations secured hereby, Beneficiary may, to the full
extent permitted by law, in addition to all other rights and remedies,
forthwith after any such default enter upon and take possession of the
Property, complete any buildings or other improvements under construction,
construct new improvements and make modifications to and/or demolish any of
the foregoing. In connection therewith Beneficiary shall have the power to
file any and all notices and obtain any and all permits and licenses which
Beneficiary, in its sole and absolute discretion, deems necessary or
appropriate, including the filing of notices of completion and the obtaining
of certificates of occupancy. Beneficiary shall also have the right to
receive all of the rents, issues and profits of the Property, overdue, due or
to become due, and to apply the same, after payment of all necessary charges
and expenses, including attorneys' fees, on account of the indebtedness
secured hereby. Beneficiary may do any and all of the foregoing in its own
name or in the name of Trustor and Trustor hereby irrevocably appoints
Beneficiary as its attorney-in-fact for such purposes. Beneficiary may also,
at any time after such default, apply to any court of competent jurisdiction
for the appointment of a receiver and Trustor agrees that such appointment
shall be made upon a PRIMA FACIE showing of a claimed default without
reference to any offsets or
defenses against such default. Such receiver shall have all the rights and
powers provided Beneficiary pursuant to this section or otherwise provided
hereunder or by law. Said receiver may borrow monies and issue certificates
therefor. Said certificates shall be a lien on the Property subordinate only
to this Deed of Trust and the Leases; PROVIDED, HOWEVER, that should any of
said certificates be acquired by Beneficiary the amount thereof shall
constitute additional indebtedness secured hereby. Subject to compliance with
applicable laws, such receiver may lease all or any portion of the Property
on such terms and for such a term (which may extend beyond the terms of such
receiver's appointment and/or, if Beneficiary so consents, sale of the
Property hereunder) as such receiver may deem appropriate in its sole and
absolute discretion. The entering upon and taking possession of the Property
pursuant to this section and the collection of the rents, issues and profits
therefrom shall not cure or waive any default or notice of default hereunder
or invalidate any act of Beneficiary pursuant thereto.
5.13. Should default be made by Trustor in payment or
performance of any indebtedness or other obligation or agreement secured
hereby and/or in performance of any agreement herein, or should Trustor
otherwise be in default hereunder, Beneficiary may, subject to NRS 107.080,
declare all sums secured hereby immediately due by delivery to Trustee of a
written notice of breach and election to sell (which notice Trustee shall
cause to be recorded and mailed as required by law) and shall surrender to
Trustee this Deed of Trust and the Note.
5.14. After three (3) months shall have elapsed following
recordation of any such notice of breach, Trustee shall sell the property
subject hereto at such time and at such place in the State of Nevada as
Trustee, in its sole discretion, shall deem best to accomplish the objects of
these trusts, having first given notice of such sale as then required by law.
In the conduct of any such sale Trustee may act itself or through any
auctioneer, agent or attorney. The place of sale may be either in the county
in which the property to be sold, or any part thereof, is situated, or at an
office of Trustee located in the State of Nevada:
(a) Upon the request of Beneficiary or if required by law
Trustee shall postpone sale of all or any portion of said property or
interest therein by public announcement at the time fixed by said notice of
sale, and shall thereafter postpone said sale from time to time by public
announcement at the time previously appointed.
(b) At the time of sale so fixed, Trustee shall sell the
property so advertised or any part thereof or interest therein either as a
whole or in separate parcels, as Beneficiary may determine in its sole and
absolute discretion, to the highest bidder for cash in lawful money of the
United States, payable at time of sale, and shall deliver to such purchaser a
deed or deeds or other appropriate instruments conveying the property so
sold, but without covenant or warranty, express or implied. Beneficiary and
Trustee may bid and purchase at such sale. To the extent of the indebtedness
secured hereby, Beneficiary need not bid for cash at any sale of all or any
portion of the Property pursuant hereto, but the amount of any successful bid
by Beneficiary shall be applied in reduction of said indebtedness. Trustor
hereby agrees, if it is then
still in possession, to surrender, immediately and without demand, possession
of said property to any purchaser.
5.15. Trustee shall apply the proceeds of any such sale to
payment of expenses of sale and all charges and expenses of Trustee and of
these trusts, including cost of evidence of title and Trustee's fee in
connection with sale; all sums expended under the terms hereof, not then
repaid, with accrued interest at the rate equal to the Default Rate; all
other sums then secured hereby, and the remainder, if any, to the person or
persons legally entitled thereto.
5.16. Beneficiary, from time to time before Trustee's sale, may
rescind any notice of breach and election to sell by executing, delivering
and causing Trustee to record a written notice of such rescission. The
exercise by Beneficiary of such right of rescission shall not constitute a
waiver of any breach or default then existing or subsequently occurring, or
impair the right of Beneficiary to execute and deliver to Trustee, as above
provided, other notices of breach and election to sell, nor otherwise affect
any term, covenant or condition hereof or under any obligation secured
hereby, or any of the rights, obligations or remedies of the parties
thereunder.
5.17 Trustor agree(s) that in the event that Trustor shall (a)
file with any bankruptcy court of competent jurisdiction or become the
subject of any petition under Title 11 of the United States Code, as amended,
(b) be the subject of any order for relief issued under Title 11 of the
United States Code, as amended, (c) file or be the subject of any petition
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or future
federal or state act or law relating to bankruptcy, insolvency or other
relief for debtors, (d) have sought or consented to or acquiesced in the
appointment of any trustee, receiver, conservator or liquidator, (e) be the
subject of any order, judgment or decree entered by any court of competent
jurisdiction approving a petition filed against such party for any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal or state
law relating to bankruptcy, insolvency or relief for debtors, then, in such
event, Beneficiary or any designee or nominee, as the case may be, shall
thereupon be entitled to relief from any automatic stay imposed by Section
362 of Title 11 of the United States Code, as amended, on or against the
rights and remedies otherwise available to Beneficiary and designee or
nominee as provided in any of the Loan Documents, it being the intent of the
parties hereto that Trustor, without direct cost or expense to its
shareholders, agrees to take or consent to any and all action necessary to
effectuate such relief from the automatic stay.
SECTION 6
MISCELLANEOUS
6.01 Upon receipt of written request from Beneficiary reciting
that all sums secured hereby have been paid and upon surrender of this Deed
of Trust and the Note secured
hereby to Trustee for cancellation and upon payment of its fees, Trustee
shall reconvey without warranty the property then held hereunder. The
recitals in such reconveyance of any matters of fact shall be conclusive
proof of the truth thereof. The grantee in such reconveyance may be
described in general terms as "the person or persons legally entitled
thereto."
6.02. Trustor, for itself and for all persons hereafter claiming
through or under it or who may at any time hereafter become holders of liens
junior to the lien of this Deed of Trust, hereby expressly waives and
releases all rights to direct the order in which any of the Property shall be
sold in the event of any sale or sales pursuant hereto and to have any of the
Property and/or any other property now or hereafter constituting security for
any of the indebtedness secured hereby marshaled upon any sale under this
Deed of Trust or of any other security for any of said indebtedness.
6.03. All notices, demands or requests relating to any matter
set forth herein shall be in writing and shall be served by delivery,
certified mail, return receipt requested, or by a reputable commercial
carrier that provides a receipt. All such notices or demands served shall be
with postage thereon fully prepaid, and addressed to the party so to be
served at its address stated below, or at such other address of which said
party shall have theretofore given notice in writing as provided herein. Any
such notices or demands shall be deemed effective on the day of actual
delivery as shown by the addressee's return receipt or upon the second (2nd)
business day after the date of mailing, whichever is earlier in time.
Notices shall be addressed as follows:
If to Beneficiary, to it at the following address:
Madeleine LLC
450 Park Avenue
New York, New York 10022
Attention: Mr. Kevin P. Genda
with a copy to:
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
Attention: Michael J. Feinman, Esq.
If to Trustor, to it at the following address:
Speakeasy Gaming of Las Vegas, Inc.
c/o Mountaineer Park, Inc.
Route 2 South
Chester, West Virginia 26034
Attention: Mr. Edson Arneault, President
with copy to:
Ruben & Aronson, LLP
3299 K Street N.W.
Suite 403
Washington, D.C. 20007
Attention Robert L. Ruben, Esq.
If to Trustee, to it at the following address:
Nevada Title Compay
3320 West Sahara Avenue
Suite 200
Las Vegas, Nevada 89102
Attention: Roger A. Waite
Any party hereto may change its address for the purpose of
receiving notices or demands as herein provided by a written notice given in
the manner aforesaid to the other party hereto, which notice of change of
address shall not become effective, however, until the actual receipt thereof
by the other party. Whenever any law requires Beneficiary to give reasonable
notice of any act, election, or event, or proposed act, election, or event,
said requirement shall be deemed complied with if Beneficiary gives Trustor
ten (10) days written notice as herein provided. Information concerning the
security interest may be obtained from Beneficiary at the above address.
6.05. This Deed of Trust applies to, inures to the benefit of,
and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns (where permitted).
6.06. Trustee accepts these trusts when this Deed of Trust, duly
executed and acknowledged, is made a public record as provided by law.
6.07. Where any provision in this Deed of Trust refers to action
to be taken by Trustor, or which Trustor is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by Trustor.
6.08. In the event of any conflict between the provisions of
this Deed of Trust and the provisions of the Loan Agreement, the provisions
of the Loan Agreement shall govern and control, except that this Deed of
Trust shall govern and control with respect to (i) the provisions contained
in the Granting Clauses of Section 1 and in Sections 2, 4, and 5 hereof
and/or (ii) any other provisions contained in this Deed of Trust relating to
Beneficiary's rights or remedies or Trustor's obligations or liabilities in
respect of the Trust Property. In the event
of any conflict between any provision hereof with respect to any Trust
Property which is personal property and any term or provision of the Security
Agreement, then such term or provision of the Security Agreement shall govern
and control with respect to such personal property to the extent of such
conflict. Trustor acknowledges that the provisions of this Deed of Trust may
impose additional or greater obligations on Trustor, or afford Beneficiary
additional or greater rights and remedies, in respect of the Trust Property
than the provisions of the Loan Agreement and such additional or greater
obligations and/or rights and remedies shall not be deemed to be a conflict
for purposes of the foregoing two sentences.
6.09. If any term, provision, covenant or condition of this Deed
of Trust, or any application thereof, should be held by a court of competent
jurisdiction to be invalid, void, or unenforceable, all provisions, covenants
and conditions of this Deed of Trust and all applications thereof not held
invalid, void or unenforceable, shall continue in full force and effect and
shall in no way be affected, impaired or invalidated thereby. If the lien of
this Deed of Trust is invalid or unenforceable as to any part of the
Property, or if the lien is invalid or unenforceable as to any part of the
indebtedness secured hereby, the unsecured or partially unsecured portion of
such indebtedness shall be completely paid prior to the payment of the
remaining and secured or partially secured portion of such indebtedness, and
all payments made on such indebtedness, whether voluntary or under
foreclosure or other enforcement action or procedure, shall be considered to
have been first paid on and applied to the full payment of that portion of
such indebtedness which is not secured or fully secured by the lien of this
Deed of Trust.
6.10. In the event that Trustor consists of more than one
person, firm or corporation then and in such event all of such persons, firms
or corporations shall be jointly and severally liable hereunder.
6.11. This Deed of Trust shall be governed by and construed in
accordance with the internal laws of the State of Nevada, without regard to
principles of conflicts of law.
6.12. This Deed of Trust shall be construed in accordance with
its intent and without regard to any presumption or other rule requiring
construction against the party causing the same to be drafted.
6.13. The various rights, options, elections and remedies of
Beneficiary and Trustee hereunder shall be cumulative and no one of them
shall be construed as exclusive of any other, or of any right, option,
election or remedy provided in any agreement or by law.
6.14. Time is of the essence of this Deed of Trust and all of
the terms, provisions, covenants and conditions hereof applicable to Trustor.
6.15. In this Deed of Trust, whenever the context so requires
the masculine gender includes the feminine and/or neuter, and the singular
number includes the plural, and vice-versa, the term Beneficiary shall
include any future holder, including pledgees, of the Note
secured hereby, and the term Trustor shall mean the original signatory
hereof, the successors and assigns thereof and any future owners of the
Property or any portion thereof. In the event the ownership of all or any
portion of the Property becomes vested in a person other than the signatory
hereof, Beneficiary may, without notice to such signatory, deal with such
successor or successors with reference to this Deed of Trust and to the
indebtedness hereby secured in the same manner as with the signatory, without
in any way vitiating or discharging such signatory's liability hereunder or
upon the indebtedness hereby secured. In this Deed of Trust, the use of
words such as "including" or "such as" shall not be deemed to limit the
generality of the term or clause to which they have reference, whether or not
nonlimiting language (such as "without limitation," or "but not limited to,"
or words of similar import) is used with reference thereto, but rather shall
be deemed to refer to all other items or matters that could reasonably fall
within the broadest possible scope of such general statement, term or matter.
In any instance in which Beneficiary's consent, approval or satisfaction is
required hereunder, such consent, approval or satisfaction shall be deemed to
require the consent, approval or satisfaction of Beneficiary and, at
Beneficiary's election, Beneficiary's counsel, and unless otherwise provided
in this Deed of Trust, may be granted or withheld in Beneficiary's (or
Beneficiary's counsel's) reasonable discretion. In any instance in which
Beneficiary may elect to undertake any act hereunder, Beneficiary's election
shall be made in its sole and absolute discretion. In any instance in which
Beneficiary may elect to undertake any acts hereunder, Beneficiary's election
shall be made in its sole and absolute discretion. The captions appealing at
the commencement of the sections hereof are descriptive only and for
convenience in reference to this Deed of Trust and in no way whatsoever
define, limit or describe the scope or intent of this Deed of Trust, nor in
any way affect this Deed of Trust.
6.16. Trustor and Beneficiary each represents and warrants to the
other that it has not dealt with any broker or finder in connection with this
Deed of Trust. Trustor and Beneficiary shall indemnify, protect, defend and
hold each other harmless from and against any and all claims for brokerage,
leasing, finders or similar fees arising out of the breach on their respective
parts of any representation or agreement contested in this Section.
6.17. Trustor hereby knowingly, voluntarily and intentionally
waives (to the extent permitted by applicable law) trial by jury in any
action or proceeding of any kind or nature that may arise out of this Deed of
Trust, the Property or any other matter related thereto or by reason of any
other cause or dispute of any kind or nature between Trustor and Beneficiary.
6.18. Where not inconsistent with the above, the following
covenants, Nos. 1; 2 (full replacement value); 3; 4 (Default Rate as defined
in the Note); 5; 6; 7 (a reasonable percentage); 8 and 9 of NRS 107.030 are
hereby adopted and made a part of this Deed of Trust.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust on the
day and year first above written.
SPEAKEASY GAMING OF LAS VEGAS, INC.,
a Nevada corporation
By: /S/ EDSON R. ARNEAULT
--------------------------------------
Name: Edson R. Arneault
Title: President
STATE OF NEVADA )
) ss.:
COUNTY OF ____________)
On the ____ day of April, 1998, before me personally came Edson R. Arneault,
to me known to be the individual who executed the foregoing instrument, and
who, being duly sworn by me, did depose and say that he is President of
Speakeasy Gaming of Las Vegas, Inc., a Nevada corporation, and that he has
authority to sign the same, and acknowledged that he executed the same as the
act and deed of said corporation.
Sworn to before me this ____ day
of April, 1998.
- --------------------------------------------
Notary Public