Recording Requested by and Recorded
Counterparts Should be Returned to:
MAYER, BROWN & PLATT
1675 Broadway
New York, New York 10019-5820
Attn: Douglas L. Wisner, Esq.
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
FIXTURE FILING AND SECURITY AGREEMENT
made by
ALADDIN GAMING, LLC,
a Nevada limited-liability company,
as Trustor,
to
STEWART TITLE OF NEVADA,
a Nevada corporation,
as Trustee,
for the benefit of
THE BANK OF NOVA SCOTIA,
in its capacity as Administrative Agent,
as Beneficiary
******************************************************************************
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF CLARK
COUNTY, NEVADA UNDER THE NAME OF ALADDIN GAMING, LLC AS "DEBTOR" AND THE BANK
OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT, AS SECURED PARTY.
THIS INSTRUMENT IS A "CONSTRUCTION MORTGAGE" AS THAT TERM IS DEFINED
IN SECTION 104.9313(1)(C) OF THE NEVADA
REVISED STATUTES AND SECURES AN OBLIGATION INCURRED FOR THE CONSTRUCTION OF AN
IMPROVEMENT UPON LAND.
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DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
FIXTURE FILING AND SECURITY AGREEMENT
THIS DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, FIXTURE FILING AND
SECURITY AGREEMENT (hereinafter called "Deed of Trust") is made and effective
as of February 26, 1998, by ALADDIN GAMING, LLC, a Nevada limited-liability
company (Aladdin Gaming, LLC, together with all successors and assigns of the
Trust Estate (as hereinafter defined), "Trustor") whose address is 2810 West
Charleston Boulevard, Suite F58, Las Vegas, Nevada 89102, Attention: Jack
Sommer, to STEWART TITLE OF NEVADA, a Nevada corporation, whose address is
3800 Howard Hughes Parkway, Suite 500, Las Vegas, Nevada 89109, Attention:
Linda J. Jones, as Trustee ("Trustee"), for the benefit of THE BANK OF NOVA
SCOTIA, a Canadian chartered bank ("Beneficiary"), whose address is: 580
California Street, 21st Floor, San Francisco, California 94104, Attention: Mr.
Alan Pendergast, in its capacity as Administrative Agent under that certain
Credit Agreement dated as of February 26, 1998, among Trustor, Beneficiary,
Merrill Lynch Capital Corporation, as syndication agent, and the lenders (the
"Lenders") listed therein from time to time (as the same may be amended or
modified from time to time, the "Credit Agreement").
INTEREST ON OBLIGATIONS SECURED HEREBY ACCRUES AT THE RATE WHICH MAY FLUCTUATE
FROM TIME TO TIME.
DEFINITIONS - As used in this Deed of Trust, the following terms have
the meanings hereinafter set forth:
"Accounts Receivable" shall have the meaning set forth in
Section 9-106 (NRS 104-9106) of the UCC for the term "account," and shall
include, without limitation, all rents, room revenues, income, receipts,
issues, profits, revenues and maintenance fees, all rights to payment for
hotel room occupancy by hotel guests, food and beverage revenues, advance
registration fees, tour or junket proceeds and deposits, deposits for
conventions and/or party reservations, security deposits and prepaid amounts,
license and concession fees, income, proceeds and other benefits to which
Trustor may now or hereafter be entitled from the Site, the Improvements, or
any business or other activity conducted by Trustor at the Site or the
Improvements.
"Bankruptcy" means, with respect to any Person that: (i) a court
having jurisdiction in the Trust Estate shall have entered a decree or order
for relief in
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respect of such Person in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order has not been stayed; or any other
similar relief shall have been granted under any applicable federal or state
law; or (ii) an involuntary case shall be commenced against such Person, under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similarly law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the Trust Estate for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over such Person, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of such Person,
for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial
part of the property of such Person, and any such event described in this
clause (ii) shall continue for sixty (60) days unless dismissed, bonded or
discharged; or (iii) such Person shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or such Person shall make any assignment for
the benefit of creditors or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due and payable and a
period of thirty (30) days shall have elapsed; or (iv) such Person shall be
unable, or shall fail generally, or shall admit in writing its inability, to
pay its debts as such debts become due and a period of thirty (30) days shall
have elapsed; or the Board of Directors of such Person (or any committee
thereof) or the managing member of such Person shall, adopt any resolution or
otherwise authorize any action to approve any of the actions referred to in
clause (iii) above or this clause (iv).
"Deed of Trust" means this Deed of Trust, Assignment of Rents and
Leases and Security Agreement as it may be amended, increased or modified from
time to time
"Default Rate" means the interest rate set forth in Section 3.2.2 of
the Credit Agreement that shall be due upon an Event of Default pursuant to
Section 8.3 of the Credit Agreement.
"Event of Default" has the meaning set forth in Section 3.1 hereof.
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"FF&E" means all furniture, fixtures, equipment, apparatus,
appurtenances, inventory and personal property now or in the future contained
in, used in connection with, attached to, or otherwise useful or convenient to
the use, operation, or occupancy of, or placed on, but unattached to, any part
of the Site or Improvements whether or not the same constitutes real property
or fixtures in the State of Nevada, and including all removable window and
floor coverings, all furniture and furnishings, heating, lighting, plumbing,
laundry, ventilating, air conditioning, refrigerating, incinerating, cleaning,
and or lifting equipment, all elevators, escalators, and elevator and
escalator plants, vacuum cleaning systems, public address and communications
systems, switchboards, security and surveillance equipment and devices, power
equipment, transformers, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, engines, motors, compressors,
machinery, pipes, appliances, equipment, fittings, conduits, fixtures, and
building materials, all exercise equipment, all financial equipment, computer
equipment, calculators, adding machines, video game machines, and any other
electronic equipment of every nature used or located on any part of the Site
or Improvements, together with all venetian blinds, shades, awnings, screens,
draperies, drapery and curtain rods, carpeting, brackets, bulbs, cleaning
apparatus, mirrors, lamps, ornaments, cooling apparatus and equipment, cooking
facilities, stoves, ranges and ovens, microwave units, bakery equipment,
garbage disposals, dishwashers, dishes, china, flatware, utensils, glassware
and barware, all stock pots, and all other pots and pans and other kitchen
and/or food, beverage and liquor handling, preparation, serving and storage
equipment, tables, desks, chairs, chests, cabinets, mantels, plants,
shrubbery, ground maintenance equipment, and any and all such property which
is at any time installed in, affixed to or placed upon the Site or
Improvements.
"Improvements" means (1) all the buildings, structures, facilities and
improvements of every nature whatsoever now or hereafter situated on the Site
or any real property encumbered hereby, and (2) all FF&E, of every nature
whatsoever now or hereafter owned or leased by Trustor or in which Trustor has
any rights or interest and located in or on, or attached to, or used or
intended to be used or which are now or may hereafter be appropriated for use
on or in connection with the operation of the Site or any real or personal
property encumbered hereby or any other Improvements, or in connection with
any construction being conducted or which may be conducted thereon, and all
extensions, additions, accessions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing, and all of the right,
title and interest of Trustor in and to any such property, which, to the
fullest extent permitted by law, shall be conclusively deemed fixtures and
improvements and a part of the real property hereby encumbered.
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"Intangible Collateral" means (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the
Site or Improvements, including, without limitation, the name "Aladdin,"
including any variations thereon, together with the goodwill associated
therewith, and all names, logos, and designs used by Trustor, or in connection
with the Site or in which Trustor has rights, with the exclusive right to use
such names, logos and designs wherever they are now or hereafter used in
connection with the Site or Improvements, and any and all other trade names,
trademarks or service marks, whether or not registered, now or hereafter used
in the operation of the Site or Improvements, including, without limitation,
any interest as a lessee, licensee or franchisee, and, in each case, together
with the goodwill associated therewith; (b) subject to the absolute assignment
contained herein, the Rents; (c) any and all books, records, customer lists,
concession agreements, supply or service contracts, licenses, permits,
governmental approvals (to the extent such licenses, permits and approvals may
be pledged under applicable law), signs, goodwill, casino and hotel credit and
charge records, supplier lists, checking accounts, safe deposit boxes
(excluding the contents of such deposit boxes owned by persons other than
Trustor and its subsidiaries), cash, instruments, chattel papers, including
inter-company notes and pledges, documents, unearned premiums, deposits,
refunds, including but not limited to income tax refunds, prepaid expenses,
rebates, tax and insurance escrow and impound accounts, if any, actions and
rights in action, and all other claims, including without limitation
condemnation awards and insurance proceeds, and all other contract rights and
general intangibles resulting from or used in connection with the operation
and occupancy of the Trust Estate and the Improvements and in which Trustor
now or hereafter has rights; and (d) general intangibles, vacation license
resort agreements or other time share license or right to use agreements,
including without limitation all rents, issues, profits, income and
maintenance fees resulting therefrom, whether any of the foregoing is now
owned or hereafter acquired.
"Personal Property" has the meaning set forth in Section 1.13 hereto.
"Proceeds" has the meaning assigned to it under the UCC and, in any
event, shall include but not be limited to (i) any and all proceeds of any
insurance (including without limitation property casualty and title
insurance), indemnity, warranty or guaranty payable from time to time with
respect to any of the Trust Estate; (ii) any and all proceeds in the form of
accounts, security deposits, tax escrows (if any), down payments (to the
extent the same may be pledged under applicable law), collections, contract
rights, documents, instruments, chattel paper, liens and security instruments,
guarantees or general intangibles relating in whole or in part to the Site
6
or the Improvements and all rights and remedies of whatever kind or nature
Trustor may hold or acquire for the purpose of securing or enforcing any
obligation due Trustor thereunder; (iii) any and all payments in any form
whatsoever made or due and payable from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Trust Estate by any Governmental Instrumentality; (iv) subject to
the absolute assignment contained herein, the Rents or other benefits arising
out of, in connection with or pursuant to any Space Lease of the Trust Estate;
and (v) any and all other amounts from time to time paid or payable in
connection with any of the Trust Estate; provided, however, that the Trustor
is not authorized to dispose of any of the Trust Estate unless such
disposition is a Permitted Disposition.
"Rents" means all rents, issues, profits, revenue, royalties, income,
proceeds, earnings and other benefits, including, without limitation, prepaid
rents, security deposits, and impound accounts derived from the Ground
Leases, any Space Lease, sublease, license, franchise, occupancy or other
agreement now existing or hereafter created affecting all or any portion of
the Site or the Improvements or the use or occupancy thereof.
"Space Leases" means any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreements,
arrangements and all other agreements affecting the Trust Estate, that Trustor
has entered into, taken by assignment, taken subject to, or assumed, or has
otherwise become bound by, now or in the future, that give any person (a) the
right to conduct its business on, or otherwise use, operate or occupy, all or
any portion of the Site or Improvements or (b) the right to enter upon or use
any of the Trust Estate to extract or remove natural resources of any kind,
together with all amendments, extensions, and renewals of the foregoing
entered into in compliance with this Deed of Trust, together with all rental,
occupancy, service, maintenance or any other similar agreements pertaining to
use or occupation of, or the rendering of services at the Site, the
Improvements or any part thereof; provided, however, the Ground Leases shall
not be deemed to be included within the definition of "Space Leases."
"Space Lessee(s)" means any and all tenants, licensees, or other
grantees of the Space Leases and any and all guarantors, sureties, endorsers
or others having primary or secondary liability with respect to such Space
Leases.
7
"Site" means the real property situated in the County of Clark, State
of Nevada, more specifically described in Exhibit A attached hereto and
incorporated herein by reference, including any after acquired title thereto.
"Tangible Collateral" means all personal property, goods, equipment,
supplies, building and other materials of every nature whatsoever and all
other tangible personal property constituting a part or portion of the Site or
the Improvements and/or used in the operation of the hotel, casino,
restaurants, stores, parking facilities, and all other commercial operations
on the Site or Improvements, including but not limited to communication
systems, visual and electronic surveillance systems and transportation systems
and not constituting a part of the real property subject to the real property
lien of this Deed of Trust and including all property and materials stored
therein in which Trustor has an interest and all tools, utensils, food and
beverage, liquor, uniforms, linens, housekeeping and maintenance supplies,
vehicles, fuel, advertising and promotional material, blueprints, surveys,
plans and other documents relating to the Site or Improvements, and all
construction materials and all furnishings, fixtures and equipment, including,
but not limited to, all FF&E and all equipment and devices which are or are to
be installed and used in connection with the operation of the Site or the
Improvements, those items of furniture, fixtures and equipment which are to be
purchased or leased by Trustor, machinery and any other item of personal
property in which Trustor now or hereafter own or acquire an interest or
right, and which are used or useful in the construction, operation, use and
occupancy of the Site or the Improvements and all present and future right and
interest of Trustor in and to any casino operator's agreement, license
agreement or sublease agreement used in connection with the Site or the
Improvements.
"Trust Estate" means all of the property described in Granting Clauses
(A) through (P) below, inclusive, and each item of property therein described.
"UCC" means the Uniform Commercial Code in effect in the State of
Nevada from time to time, NRS chapters 104 and 104A.
In addition. any capitalized terms used in this Deed of Trust which are not
otherwise defined herein shall have the meaning ascribed to such terms in the
Credit Agreement and, if not defined therein, the meaning ascribed to such
terms in the Disbursement Agreement
W I T N E S S E T H:
8
IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDERATION; THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,
AND FOR THE PURPOSE OF SECURING in favor of Beneficiary (1) the due and
punctual payment of the indebtedness evidenced by the Notes in the principal
amount of Four Hundred Ten Million Dollars ($410,000,000); (2) the performance
of each covenant and agreement of Trustor contained in the Credit Agreement,
herein or in the other Loan Documents and the Disbursement Agreement; (3) the
payment of such additional loans or advances as hereafter may be made to
Trustor (individually or jointly and severally with any other Person) or its
successors or assigns, when evidenced by a promissory note or notes reciting
that they are secured by this Deed of Trust; provided, however, that any and
all future advances by Beneficiary or Lenders to Trustor made for the
improvement, protection or preservation of the Trust Estate, together with
interest at the interest rate provided in the Credit Agreement, shall be
automatically secured hereby unless such a note or instrument evidencing such
advances specifically recites that it is not intended to be secured hereby and
(4) the payment of all sums expended or advanced by Beneficiary or Lenders
under or pursuant to the terms hereof or to protect the security hereof
(including Protective Advances (as such term is defined in Section 4.2
hereof)), together with interest thereon as herein provided, Trustor, in
consideration of the premises, and for the purposes aforesaid, does hereby
ASSIGN, GRANT, BARGAIN, SELL, CONVEY, PLEDGE, RELEASE, HYPOTHECATE, WARRANT,
AND TRANSFER WITH POWER OF SALE UNTO TRUSTEE IN TRUST FOR THE BENEFIT OF
BENEFICIARY AND THE LENDERS each of the following:
(A) Trustor's interest in the Site;
(B) TOGETHER WITH all the estate, right, title and interest of
Trustor of, in and to the Improvements;
(C) TOGETHER WITH all Appurtenant Rights which now or hereinafter
shall in any way belong, relate or be appurtenant thereto, whether now owned
or hereafter acquired by Trustor;
(D) TOGETHER WITH all the estate, right, title and interest of
Trustor of, in and to the Tangible Collateral to the extent permitted by, or
not prohibited by, the Nevada Gaming Laws and other applicable law;
9
(E) TOGETHER WITH the Intangible Collateral to the extent
permitted by, or not prohibited by, Nevada Gaming Laws and other applicable
law;
(F) TOGETHER WITH (i) all the estate, right, title and interest of
Trustor of, in and to all judgments and decrees, Loss Proceeds (including
awards of damages and settlements hereafter made resulting from condemnation
proceedings or the taking of any of the property described in Granting Clauses
(A), (B), (C), (D) and (E) hereof or any part thereof under the power of
eminent domain, or for any damage (whether caused by such taking or otherwise)
to the property described in Granting Clauses (A), (B), (C), (D) and (E)
hereof or any part thereof, or to any Appurtenant Rights thereto), and
Beneficiary is hereby authorized to collect and receive said Loss Proceeds and
to give proper receipts and acquittance therefor, and (subject to the terms
hereof) to apply the same toward the payment of the indebtedness and other
sums secured hereby, notwithstanding the fact that the amount owing thereon
may not then be due and payable; (ii) all proceeds of any sales or other
dispositions of the property or rights described in Granting Clauses (A), (B),
(C), (D) and (E) hereof or any part thereof whether voluntary or involuntary,
provided, however, that the foregoing shall not be deemed to permit such
sales, transfers, or other dispositions except as specifically permitted
herein; and (iii) whether arising from any voluntary or involuntary
disposition of the property described in Granting Clauses (A), (B), (C), (D)
and (E), all Proceeds, products, replacements, additions, substitutions,
renewals and accessions, remainders, reversions and after-acquired interest
in, of and to such property;
(G) TOGETHER WITH, the absolute assignment of the Ground Leases
and any Space Leases or any part thereof that Trustor has entered into, taken
by assignment, taken subject to, or assumed, or has otherwise become bound by,
now or in the future, together with all of the following (including all "Cash
Collateral" within the meaning of the Bankruptcy Code) arising from the Ground
Leases and any Space Leases: (a) Rents (subject, however, to the aforesaid
absolute assignment to Trustee for the benefit of Beneficiary and the
conditional permission hereinbelow given to Trustor to collect the Rents), (b)
all guarantees, letters of credit, security deposits, collateral, cash
deposits, and other credit enhancement documents, arrangements and other
measures with respect to the Ground Leases and any Space Leases, (c) all of
Trustor's right, title, and interest under the Ground Leases and any Space
Leases, including the following: (i) the right to receive and collect the
Rents from the lessee, sublessee or licensee, or their successor(s), under the
Ground Leases and any Space Lease(s) and (ii) the right to enforce against any
tenants thereunder and otherwise any and all remedies under the Ground Leases
and any Space Leases,
10
including Trustor's right to evict from possession any tenant thereunder or to
retain, apply, use, draw upon, pursue, enforce or realize upon any guaranty of
the Ground Leases and any Space Lease; to terminate, modify, or amend the
Ground Leases and any Space Leases; to obtain possession of, use, or occupy,
any of the real or personal property subject to the Ground Leases and any
Space Leases; and to enforce or exercise, whether at law or in equity or by
any other means, all provisions of the Ground Leases and any Space Leases and
all obligations of the tenants thereunder based upon (A) any breach by such
tenant under the applicable Ground Lease or Space Lease (including any claim
that Trustor may have by reason of a termination, rejection, or disaffirmance
of such Ground Lease or Space Lease pursuant to the Bankruptcy Code) and (B)
the use and occupancy of the premises demised, whether or not pursuant to the
applicable Ground Lease or Space Lease (including any claim for use and
occupancy arising under landlord-tenant law of the State of Nevada or the
Bankruptcy Code). Permission is hereby given to Trustor, so long as no Event
of Default has occurred and is continuing hereunder, to enforce and collect
and use the Rents, as they become due and payable, but not more than one (1)
month in advance thereof. Upon the occurrence of an Event of Default, the
permission hereby given to Trustor to collect the Rents shall automatically
terminate, but such permission shall be reinstated upon a cure of such Event
of Default. Beneficiary shall have the right, at any time and from time to
time, to notify the ground lessees and any Space Lessee of the rights of
Beneficiary as provided by this Section;
Notwithstanding anything to the contrary contained herein, the
foregoing provisions of this Paragraph (G) shall not constitute an assignment
for purposes of security but shall to the extent permitted by, or not
prohibited by, the Nevada Gaming Laws and other applicable law constitute an
absolute and present assignment of the Rents to Beneficiary, subject, however,
to the conditional license given to Trustor to collect and use the Rents as
hereinabove provided; and the existence or exercise of such right of Trustor
shall not operate to subordinate this assignment to any subsequent assignment,
in whole or in part, by Trustor;
(H) TOGETHER WITH all of Trustor's right, title and interest in
and to any and all reimbursements and rights to payments, credits, offsets and
refunds under the Main Project Documents (other than the Ground Leases)
including, without limitation, the Reciprocal Easement Agreement, the Common
Parking Use Agreement, the Site Work Agreement, the Energy Service Agreement
(including any right to purchase the Utility Plant), and any side letters or
related agreements between Trustor and any other party thereto;
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(I) TOGETHER WITH all of Trustor's right, title and interest in
and to any and all Plans and Specifications and all maps, plans,
specifications, surveys, studies, tests, reports, data and drawings relating
to the development of the Site or the Improvements and the construction of the
Improvements, including, without limitation, all marketing plans, feasibility
studies, soils tests, design contracts and all contracts and agreements of
Trustor relating thereto including, without limitation, architectural,
structural, mechanical and engineering plans and specifications, studies, data
and drawings prepared for or relating to the development of the Site or the
Improvements or the construction, renovation or restoration of any of the
Improvements or the extraction of minerals, sand, gravel or other valuable
substances from the Site and purchase contracts or any agreement granting
Trustor a right to acquire any land situated within Clark County, Nevada;
(J) TOGETHER WITH, to the extent permitted by applicable law, all
of Trustor's right, title, and interest in and to any and all licenses,
permits, variances, special permits, franchises, certificates, rulings,
certifications, validations, exemptions, filings, registrations,
authorizations, consents, approvals, waivers, orders, rights and agreements
(including, without limitation, options, option rights, contract rights now or
hereafter obtained by Trustor from any Governmental Instrumentality having or
claiming jurisdiction over the Site, the FF&E, the Improvements, or any other
element of the Trust Estate or providing access thereto, or the operation of
any business on, at, or from the Site including, without limitation, any
liquor or Gaming Licenses, (except for any registrations, licenses, findings
of suitability or approvals issued by the Nevada Gaming Authorities or any
other liquor or gaming licenses which are non-assignable); provided, that upon
an Event of Default hereunder or under the Credit Agreement, if Beneficiary is
not qualified under the Nevada Gaming Laws to hold such Gaming Licenses, then
Beneficiary may designate an appropriately qualified third party to which an
assignment of such Gaming Licenses can be made in compliance with the Nevada
Gaming Laws;
(K) TOGETHER WITH all water stock, water permits and other water
rights relating to the Site;
(L) TOGETHER WITH all oil and gas and other mineral rights, if
any, in or pertaining to the Site and all royalty, leasehold and other rights
of Trustor pertaining thereto;
(M) TOGETHER WITH any and all monies and other property, real or
personal, which may from time to time be subjected to the lien hereof by
Trustor or
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by anyone on its behalf or with its consent, or which may come into the
possession or be subject to the control of Trustee or Beneficiary pursuant to
this Deed of Trust, the Credit Agreement or any other Loan Document granting a
security interest to the Beneficiary, including, without limitation, any
Protective Advances (as defined in Section 4.2 hereof) under this Deed of
Trust; and all of Trustor's right, title, and interest in and to all
extensions, improvements, betterments, renewals, substitutes for and
replacements of, and all additions, accessions, and appurtenances to, any of
the foregoing that Trustor may subsequently acquire or obtain by any means, or
construct, assemble, or otherwise place on any of the Trust Estate, and all
conversions of any of the foregoing; it being the intention of Trustor that
all property hereafter acquired by Trustor and required by this Deed of Trust,
the Credit Agreement or other Loan Document granting security interest to the
Beneficiary to be subject to the lien of this Deed of Trust or intended so to
be shall forthwith upon the acquisition thereof by Trustor be subject to the
lien of this Deed of Trust as if such property were now owned by Trustor and
were specifically described in this Deed of Trust and granted hereby or
pursuant hereto, and Trustee and Beneficiary are hereby authorized to receive
any and all such property as and for additional security for the obligations
secured or intended to be secured hereby. Trustor agrees to take any action
as may reasonably be necessary to evidence and perfect such liens or security
interests, including, without limitation, the execution of any documents
necessary to evidence and perfect such liens or security interests;
(N) TOGETHER WITH, to the extent permitted by applicable laws, any
and all Accounts Receivable and all royalties, earnings, income, proceeds,
products, rents, revenues, reversions, remainders, issues, profits, avails,
production payments, and other benefits directly or indirectly derived or
otherwise arising from any of the foregoing, all of which are hereby assigned
to Beneficiary, who, except as otherwise expressly provided in this Deed of
Trust (including, the provisions of Section 1.13 hereof), is authorized to
collect and receive the same, to give receipts and acquittances therefor and
to apply the same to the Obligations secured hereunder, whether or not then
due and payable;
(O) TOGETHER WITH Proceeds of the foregoing property described in
Granting, Clauses (A) through (N);
(P) TOGETHER WITH Trustor's rights further to assign, sell, lease,
encumber or otherwise transfer or dispose of the property described in
Granting Clauses (A) through (O) inclusive, above, for debt or otherwise; and
13
Trustor, for itself and its successors and assigns, covenants and
agrees to and with Trustee that, at the time or times of the execution of and
delivery of these presents or any instrument of further assurance with respect
thereto, Trustor has good right, full power and lawful authority to assign,
grant, bargain, sell, convey, pledge, release, hypothecate, warrant, and
transfer its interests in the Trust Estate in the manner and form as
aforesaid, and that the Trust Estate is free and clear of all liens and
encumbrances whatsoever, except the Permitted Liens, and Trustor shall warrant
and forever defend the above-bargained property in the quiet and peaceable
possession of Trustee and its successors and assigns against all and every
person or persons lawfully or otherwise claiming or to claim the whole or any
part thereof, except for Permitted Liens and Permitted Encumbrances. Trustor
agrees that any greater title to the Trust Estate hereafter acquired by
Trustor during the term hereof shall be automatically subject hereto.
ARTICLE 1.
COVENANTS OF TRUSTOR
The Beneficiary and Lenders have been induced to enter into the Credit
Agreement and the Disbursement Agreement and to make the Loans to Borrower on
the basis of the following material covenants, all agreed to by Trustor:
a. Performance of Loan Documents. Trustor shall perform, observe
and comply with each and every provision hereof, and with each
and every provision contained in the Loan Documents and shall
promptly pay to the Administrative Agent, when payment shall
become due, the principal with interest thereon and all other
sums required to be paid by Trustor under this Deed of Trust
and the other Loan Documents.
b. General Representations, Covenants and Warranties. Trustor
represents, covenants and warrants that: (a) all of Trustor's
representations and warranties contained in the Credit
Agreement are true, correct and complete; (b) Trustor has good
and marketable title to an indefeasible fee estate in the
Site, free and clear of all encumbrances except the Permitted
Liens and the Permitted Encumbrances, and that it has the
right to hold, occupy and enjoy its interest in the Trust
Estate,
14
and has good right, full power and lawful authority to subject
the Trust Estate to the Lien of this Deed of Trust and to
pledge the same as provided herein and Beneficiary may at all
times peaceably and quietly enter upon, hold, occupy and enjoy
the entire Trust Estate in accordance with the terms hereof;
(c) all costs arising from construction of any Improvements,
the performance of any labor and the purchase of all Tangible
Collateral and Improvements have been or shall be paid when
due (subject to the provisions of the Disbursement Agreement,
the Credit Agreement and this Deed of Trust); (d) the Site has
frontage on, and direct access for ingress and egress to
dedicated street(s); (e) Trustor shall at all times conduct
and operate the Trust Estate in a manner so as not to lose, or
permit its affiliate to lose the right to conduct gaming
activities at the Main Project; and (f) Trustor acknowledges
and agrees that it presently uses, and has in the past used,
certain trade or fictitious names in connection with the
operation of the business at the Trust Estate, including the
names "Aladdin," (all of the foregoing, collectively, the
"Enumerated Names"). For all purposes under this Deed of
Trust it shall be deemed that the term "Trustor" includes, in
addition to "Aladdin Gaming, LLC," all trade or fictitious
names (including without limitation, all filings with Clark
County, Nevada for fictitious names as d/b/a's) that Aladdin
(or any successor or assign thereof) now or hereafter uses, or
has in the past used, including, without limitation, the
Enumerated Names, with the same force and effect as if this
Deed of Trust had been executed in all such names (in addition
to "Aladdin Gaming, LLC").
c. Compliance With Legal Requirements. Trustor shall cause all
portions of the Trust Estate and its use and occupancy to
fully comply in all material respects with Legal Requirements
at all times, whether or not such compliance requires work or
remedial measures that are ordinary or extraordinary, foreseen
or unforeseen, structural or nonstructural, or that interfere
with the use or enjoyment of the Trust Estate.
d. Taxes. Except as otherwise permitted by the Credit Agreement
generally and within the definition of "Permitted Liens,"
15
(a) Trustor shall pay all Impositions as they become due and
payable and shall deliver to Beneficiary promptly upon
Beneficiary's request, evidence satisfactory to Beneficiary
that the Impositions have been paid or are not delinquent; (b)
Trustor shall not suffer to exist, permit or initiate the
joint assessment of the real and personal property, or any
other procedure whereby the lien of the real property taxes
and the lien of the personal property taxes shall be assessed,
levied or charged to the Site as a single lien, except as may
be required by law; and (c) in the event of the passage of any
law deducting from the value of real property for the purposes
of taxation any lien thereon, or changing in any way the
taxation of deeds of trust or obligations secured thereby for
state or local purposes, or the manner of collecting such
taxes and imposing a tax, either directly or indirectly, on
this Deed of Trust or the Notes, Trustor shall pay all such
Impositions and all payments required with respect to such
Impositions.
e. Insurance.
i. Hazard Insurance Requirements and Proceeds.
(1) Hazard Insurance. Trustor shall at its sole
expense obtain for, deliver to, assign and
maintain for the benefit of Beneficiary,
during the term of this Deed of Trust,
insurance policies insuring the Trust Estate
and liability insurance policies, all in
accordance with the requirements of
Section 7.1.4 of the Credit Agreement,
Section 3.1.6 and Exhibit E of the
Disbursement Agreement. Trustor shall
promptly pay when due any premiums on such
insurance policies and on
16
any renewals thereof and all payments required
with respect to the procurement of such
insurance. In the event of the foreclosure of
this Deed of Trust or any other transfer of
title to the Trust Estate in extinguishment of
the Indebtedness and other sums secured
hereby, all right, title and interest of
Beneficiary in and to all insurance policies
and renewals thereof then in force shall pass
to the purchaser or grantee.
(2) Handling of Proceeds. All Proceeds from any
insurance policies shall be applied in
accordance with the provisions of
Section 7.1.20 of the Credit Agreement.
ii. Notices Regarding Insurance Policies. Trustor
covenants to promptly send to Beneficiary all notices
relating to any violation of such policies or
otherwise affecting Trustor's insurance coverage or
ability to obtain and maintain such insurance
coverage.
f. Condemnation. Beneficiary is hereby authorized, at its
option, to commence, appear in and prosecute in its own or
Trustor's name any action or proceeding relating to any
condemnation and, to settle or compromise any claim in
connection therewith, and Trustor hereby appoints Beneficiary
as its attorney-in-fact to take any action in Trustor's name
pursuant to Beneficiary's rights hereunder. Immediately upon
obtaining knowledge of the institution of any proceedings for
the condemnation of the Trust Estate, or any portion thereof,
Trustor shall notify the Trustee and Beneficiary of the pen-
17
dency of such proceedings. Trustor from time to time shall
execute and deliver to Beneficiary all instruments requested
by it to permit such participation; provided, however, that
such instruments shall be deemed as supplemental to the
foregoing grant of permission to Trustee and Beneficiary, and
unless otherwise required, the foregoing permission shall,
without more, be deemed sufficient to permit Trustee and/or
Beneficiary to participate in such proceedings on behalf of
Trustor. All such compensation awards, damages, claims,
rights of action and Proceeds, and any other payments or
relief, and the right thereto, whether paid to Beneficiary or
Trustor, are included in the Trust Estate. Beneficiary, after
deducting therefrom all its expenses, including reasonable
attorneys fees, shall apply all Loss Proceeds in accordance
with the provisions of Section 7.1.20 of the Credit Agreement.
Trustor hereby waives any rights it may have under NRS 37.115,
as amended or recodified from time to time.
g. Care of Trust Estate. Trustor shall not permit, commit or
suffer to exist any waste, impairment or deterioration of the
Trust Estate or of any part thereof that in any manner
materially impairs Beneficiary's security hereunder and shall
not take any action which will materially increase the risk of
fire or other hazard to the Trust Estate or to any part
thereof. Except as permitted under the Credit Agreement or as
contemplated by the Plans and Specifications, no material part
of the Improvements or Tangible Collateral that are part of
the Trust Estate shall be removed, demolished or materially
altered, without the prior written consent of Beneficiary,
which consent shall not be unreasonably withheld or delayed.
Trustor shall have the right, without such consent, to remove
and dispose of free from the lien of this Deed of Trust any
part of the Improvements or Tangible Collateral (that is part
of the Trust Estate) as from time to time may become worn out
or obsolete, or otherwise not useful in connection with the
operation of the Trust Estate, provided that either (i) such
removal or disposition does not materially affect the value of
the Trust Estate or (ii) prior to or promptly following such
removal, any such property shall be replaced with other
property of substan-
18
tially equal utility and of a value at least substantially
equal to that of the replaced property when first acquired and
free from any security interest of any other person (subject
only to Permitted Liens), and by such removal and replacement
Trustor shall be deemed to have subjected such replacement
property to the lien of this Deed of Trust.
h. Leases.
i. Trustor represents and warrants that:
(1) Trustor has delivered to Beneficiary true,
correct and complete copies of the Ground
Leases, and all Space Leases, including all
amendments and modifications, written or oral
existing as of the Closing Date;
(2) Trustor has not executed or entered into any
modifications or amendments of the Ground
Leases, or the Space Leases, either orally or
in writing, other than written amendments that
have been disclosed to Beneficiary in writing;
(3) to Trustor's knowledge, no default now exists
under the Ground Leases or any Space Lease;
(4) to Trustor's knowledge, no event has occurred
that, with the giving of notice or the passage
of time or both, would constitute such a
default or would entitle Trustor or any other
party under
19
the Ground Leases or any Space Lease to cancel
the same or otherwise avoid its obligations;
(5) Trustor has not accepted prepayments of
installments of Rent under the Ground Leases
or any Space Leases, except for installment
payments not in excess of one month's Rent and
security deposits;
(6) except for the assignment effected hereby and
as set forth in the Credit Agreement, Trustor
has not executed any assignment or pledge of
any of the Ground Leases, any of the Space
Leases, the Rents, or of Trustor's right,
title and interest in the same; and
(7) this Deed of Trust does not constitute a
violation or default under any of the Ground
Leases or the Space Lease, and is and shall at
all times constitute a valid lien on Trustor's
interests in the Ground Leases or the Space
Leases.
ii. Trustor shall not enter into any Space Lease nor shall
any Space Lease be modified, amended, or supplemented
without Beneficiary's prior written consent, which
consent shall not be unreasonably withheld or delayed.
iii. Trustor shall not amend, modify or supplement any
Ground Lease without Beneficiary's prior
20
written consent, which consent shall not be
unreasonably withheld or delayed.
iv. After an Event of Default, Trustor shall deliver to
Beneficiary the executed originals of all Space
Leases.
i. Further Encumbrance. Trustor acknowledges and confirms its
agreement to be bound by the covenants and restrictions
contained in the Credit Agreement applicable to the Trust
Estate. Trustor covenants and agrees to comply with all of
the terms and conditions set forth in any FF&E Financing. If
Trustor shall default in its obligations under any FF&E
Financing, then the Beneficiary shall have the right, but not
the obligation, to cure such default on Trustor's behalf and
any and all sums so expended by the Beneficiary shall be
secured by this Deed of Trust and shall be repaid by Trustor
upon demand, together with interest thereon at the Default
Rate from the date of advance.
j. Actions with Respect to Permitted Liens.
i. If any action or proceeding shall be brought to
foreclose any Permitted Lien (regardless of whether
the same is a judicial proceeding or pursuant to a
power of sale contained therein), (i) no tenant of any
portion of the Trust Estate shall be named by Trustor
as a party defendant nor shall any action be taken
with respect to the Trust Estate which would terminate
any occupancy or tenancy of the Trust Estate, or any
portion thereof, without the consent of Beneficiary;
and (ii) any Rents, if collected through a receiver or
by the holder of the Permitted Lien, shall be applied
first to the obligations secured by this Deed of
Trust, including principal and interest due and owing
on or to become due and owing on the Notes, and then
to the payment of maintenance expenses, operating
charges,
21
taxes, assessments, and disbursements incurred in
connection with the ownership, operation, and
maintenance of the Trust Estate.
ii. Trustor agrees that in the event the ownership of the
Trust Estate or any part thereof becomes vested in a
person other than Trustor, Beneficiary may, without
notice to Trustor, deal in any way with such successor
or successors in interest with reference to this Deed
of Trust, the Notes and other Obligations hereby
secured without in any way vitiating or discharging
Trustor's or any guarantor's, surety's or endorser's
liability hereunder or upon the obligations hereby
secured. No sale of the Trust Estate and no
forbearance to any person with respect to this Deed of
Trust and no extension to any person of the time for
payment of the Notes, and other sums hereby secured
given by Beneficiary shall operate to release,
discharge, modify, change or affect the original
liability of Trustor, or such guarantor, surety or
endorser either in whole or in part.
k. Partial Releases of Trust Estate. Trustor may from time to
time make a Permitted Disposition including, but not limited
to, (i) transferring a portion of the Trust Estate (including
any temporary taking) to any person legally empowered to
exercise the power of eminent domain, (ii) granting utility
easements reasonably necessary or desirable for the
construction and/or operation of the Site and the
Improvements, which grant or transfer is for the benefit of
the Trust Estate, or (iii) transferring a portion of the Trust
Estate as contemplated pursuant to Section 7.1.19 of the
Credit Agreement (including the release of the Mall Project
Parcel, and the Music Project Parcel). In each such case,
Beneficiary shall execute and deliver any instruments
necessary or appropriate to effectuate or confirm any such
transfer or grant, free from the lien of this Deed of Trust,
provided, however, that Beneficiary shall
22
execute a lien release or subordination agreement, as
appropriate, for matters described in clauses (i) and (iii)
above only if:
i. Such transfer, grant or release is permitted by the
Credit Agreement and all conditions precedent
contained in the Credit Agreement for such transfer,
grant or release, if any, shall have been satisfied;
ii. Beneficiary and Trustee shall have received a
counterpart of the instrument pursuant to which such
transfer, grant or release is to be made, and each
instrument which Beneficiary or Trustee is requested
to execute in order to effectuate or confirm such
transfer, grant or release;
iii. In the case of a transfer to a Person legally
empowered to exercise the power of eminent domain,
which transfer involves property whose value is
greater than $5,000,000, Beneficiary and Trustee shall
have received an opinion of counsel, who may be
counsel to Trustor, to the effect that the assignee or
grantee of the portion of the Trust Estate being
transferred is legally empowered to take such portion
under the power of eminent domain; and
iv. Beneficiary and Trustee shall have received such other
instruments, certificates (including evidence of
authority), endorsements (including title endorsements
and date downs) and opinions as Beneficiary or Trustee
may reasonably request, including, but not limited to,
opinions that the proposed release is permitted by
this Section 1.11.
Any consideration received for a transfer to any person empowered to exercise
the right of eminent domain shall be subject to Section 1.6 hereof.
23
l. Further Assurances.
i. At its sole cost and without expense to Trustee or
Beneficiary, and subject in all events to compliance
with the Nevada Gaming Laws and other applicable Legal
Requirements, Trustor shall do, execute, acknowledge
and deliver any and all such further acts, deeds,
conveyances, notices, requests for notices, financing
statements, continuation statements, certificates,
assignments, notices of assignments, agreements,
instruments and further assurances, and shall mark any
chattel paper, deliver any chattel paper or
instruments to Beneficiary and take any other actions
that are necessary, prudent, or reasonably requested
by Beneficiary or Trustee to perfect or continue the
perfection and first priority of Beneficiary's
security interest in the Trust Estate, to protect the
Trust Estate against the rights, claims, or interests
of third persons other than holders of Permitted Liens
or to effect the purposes of this Deed of Trust,
including the security agreement and the absolute
assignment of Rents contained herein, or for the
filing, registering or recording thereof.
ii. Trustor shall forthwith upon the execution and
delivery of this Deed of Trust, and thereafter from
time to time, cause this Deed of Trust and each
instrument of further assurance to be filed, indexed,
registered, recorded, given or delivered in such
manner and in such places as may be required by any
present or future law in order to publish notice of
and fully to protect the lien hereof upon, and the
title of Trustee and/or Beneficiary to, the Trust
Estate.
m. Security Agreement and Financing Statements. Trustor (as
debtor) hereby grants to Beneficiary (as creditor and secured
24
party) a present and future security interest in all Account
Receivables, Tangible Collateral (other than Tangible
Collateral which secures an FF&E Financing), Intangible
Collateral, FF&E (other than FF&E which secures an FF&E
Financing), Improvements (in the case of Improvements
described in clause (2) of the definition thereof, other than
Improvements which secure an FF&E Financing), all other
personal property now or hereafter owned or leased by Trustor
or in which Trustor has or will have any interest, to the
extent that such property constitutes a part of the Trust
Estate (whether or not such items are stored on the premises
or elsewhere), Proceeds of the foregoing comprising a portion
of the Trust Estate and all proceeds of insurance policies and
consideration awards arising therefrom and all proceeds,
products, substitutions, and accessions therefor and thereto,
subject to Beneficiary's rights to treat such property as real
property as herein provided (collectively, the "Personal
Property"). Trustor shall execute any and all documents and
writings, including without limitation financing statements
pursuant to the UCC, as may be necessary or prudent to
preserve and maintain the priority of the security interest
granted hereby on property which may be deemed subject to the
foregoing security agreement or as Beneficiary may reasonably
request, and shall pay to Beneficiary on demand any reasonable
expenses incurred by Beneficiary in connection with the
preparation, execution and filing of any such documents.
Trustor hereby authorizes and empowers Beneficiary to execute
and file, on Trustor's behalf, all financing statements and
refiling and continuations thereof as advisable to create,
preserve and protect said security interest (which empowerment
shall be irrevocably as it is coupled with an interest). This
Deed of Trust constitutes both a real property deed of trust
and a "security agreement," within the meaning of the UCC, and
the Trust Estate includes both real and personal property and
all other rights and interests, whether tangible or intangible
in nature, of Trustor in the Trust Estate. Trustor by
executing and delivering this Deed of Trust has granted to
Beneficiary, as security of the Obligations, a security
interest in the Trust Estate.
25
i. Fixture Filing. Without in any way limiting the
generality of the immediately preceding, paragraph or
of the definition of the Trust Estate, this Deed of
Trust constitutes and shall be effective as Financing
Statement filed as a fixture filing from the date of
recording under Sections 9-313 and 9-402 of the UCC
(NRS 104.9313 and NRS 104.9402). For such purposes,
(i) the "debtor" is Trustor and its address is the
address given for it in the initial paragraph of this
Deed of Trust; (ii) the "secured party" is
Beneficiary, and its address for the purpose of
obtaining information is the address given for it in
the initial paragraph of this Deed of Trust; (iii) the
real estate to which the fixtures are or are to become
attached is Trustor's interest in the Site and is
legally described in Exhibit A attached hereto; and
(iv) the record owner of such real estate is Trustor.
ii. Remedies. This Deed of Trust shall be deemed a
security agreement as defined in the UCC and the
remedies for any violation of the covenants, terms and
conditions of the agreements herein contained shall
include any or all of (i) those prescribed herein, and
(ii) those available under applicable law, and (iii)
those available under the UCC, all at Beneficiary's
sole election. In addition, a photographic or other
reproduction of this Deed of Trust shall be sufficient
as a financing statement for filing wherever filing
may be necessary to perfect or continue the security
interest granted herein.
iii. Derogation of Real Property. It is the intention of
the parties that the filing of a financing statement
in the records normally having to do with personal
property shall never be construed as in anyway
derogating from or impairing the
26
express declaration and intention of the parties
hereto as hereinabove stated that everything used in
connection with the production of income from the
Trust Estate and/or adapted for use therein and/or
which is described or reflected in this Deed of Trust
is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be regarded,
as part of the real property encumbered by this Deed
of Trust irrespective of whether (i) any such item is
physically attached to the Improvements, (ii) serial
numbers are used for the better identification of
certain equipment items capable of being thus
identified in a recital contained herein or in any
list filed with Beneficiary, or (iii) any such item is
referred to or reflected in any such financing
statement so filed at any time. It is the intention
of the parties that the mention in any such financing
statement of (1) rights in or to the proceeds of any
fire and/or hazard insurance policy, or (2) any award
in eminent domain proceedings for a taking or for loss
of value, or (3) Trustor's interest as lessors in any
present or future Space Lease or rights to Rents,
shall never be construed as in any way altering any of
the rights of Beneficiary as determined by this Deed
of Trust or impugning the priority of Beneficiary's
real property lien granted hereby or by any other
recorded document, but such mention in the financing
statement is declared to be for the protection of
Beneficiary in the event any court or judge shall at
any time hold with respect to the matters set forth in
the foregoing clauses (1), (2) and (3) that notice of
Beneficiary's priority of interest to be effective
against a particular class of persons, including but
not limited to, the federal government and any
subdivisions or
27
entity of the federal government, must be filed in the
UCC records.
iv. Priority; Permitted Financing of Tangible Collateral.
All Personal Property of any nature whatsoever which
is subject to the provisions of this security
agreement shall be purchased or obtained by Trustor in
its name and free and clear of any lien or
encumbrance, except for Permitted Liens and the lien
hereof, for use only in connection with the business
and operation of the Site and the Improvements, and
shall be and at all times remain free and clear of any
lease or similar arrangement, chattel financing,
installment sale agreement, security agreement and any
encumbrance of like kind, so that Beneficiary's
security interest shall attach to and vest in Trustor
for the benefit of Beneficiary, with the priority
herein specified, immediately upon the installation or
use of the Personal Property at the Site and Trustor
warrants and represents that Beneficiary's security
interest in the Personal Property is a validly
attached and binding security interest, properly
perfected and prior to all other security interests
therein except as otherwise permitted in this Deed of
Trust. The foregoing shall not be construed as
limiting Trustor's rights to transfer Personal
Property pursuant to Permitted Dispositions or to
obtain releases of Personal Property from the Lien of
this Deed of Trust pursuant to Section 1.11 hereof.
v. Presentation of Contractual Rights of Collateral.
Trustor shall, prior to delinquency, default, or
forfeiture, perform all obligations and satisfy all
material conditions required on its part to be
satisfied to preserve its rights and privileges under
any contract, lease, license,
28
permit, or other authorization (i) under which it
holds any Tangible Collateral or (ii) which
constitutes part of the Intangible Collateral, except
where Trustor is contesting such obligations in good
faith.
vi. Removal of Collateral. Except as permitted in the
Credit Agreement (while in effect) for damaged or
obsolete Tangible Collateral which is either no longer
usable or which is removed temporarily for repair or
improvement or removed for replacement on the Trust
Estate with Tangible Collateral of similar function or
as otherwise permitted herein, none of the Tangible
Collateral shall be removed from the Trust Estate
without Beneficiary's prior written consent.
vii. Change of Name. Trustor shall not change its
corporate or business name, or do business within the
State of Nevada under any name other than such name,
or any trade name(s) other than those as to which
Trustor gives prior written notice to Beneficiary of
its intent to use such trade names, or any other
business names (if any) specified in the financing
statements delivered to Beneficiary for filing in
connection with the execution hereof, without
providing Beneficiary with the additional financing
statement(s) and any other similar documents deemed
reasonably necessary by Beneficiary to assure that its
security interest remains perfected and of
undiminished priority in all such Personal Property
notwithstanding such name change.
n. Assignment of Rents and Leases. Effective upon the
recordation of this Deed of Trust, the assignment of Rents and
Leases set out above in Granting Clause (G) shall constitute
an
29
absolute and present assignment to Beneficiary, subject to the
license herein given to Trustor to collect the Rents
(including the Account Receivables, to the extent they are
deemed to be Rents), and shall be fully operative without any
further action on the part of any party, and Trustor hereby
irrevocably, absolutely, presently and unconditionally assigns
to Beneficiary all Rents and Leases. This is an absolute
assignment and not an assignment for security only.
Beneficiary shall be entitled upon the occurrence of an Event
of Default hereunder to all Rents and to enter into the Site
and the Improvements to collect all such Rents, provided,
however, that Beneficiary shall not be obligated to take
possession of the Trust Estate, or any portion thereof. The
absolute assignment contained in Granting Clause (G) shall not
be deemed to impose upon Beneficiary any of the obligations or
duties of Trustor provided in any Ground Lease or Space Lease
(including, without limitation, any liability under the
covenant of quiet enjoyment contained in any lease in the
event that any lessee shall have been joined as a party
defendant in any action to foreclose this Deed of Trust and
shall have been barred and foreclosed thereby of all right,
title and interest and equity of redemption in the Trust
Estate or any part thereof).
o. Expenses.
i. Trustor shall pay when due and payable all costs,
including without limitation, those reasonable
appraisal fees, recording fees, taxes, abstract fees,
title policy fees, escrow fees, attorneys' and
paralegal fees, travel expenses, fees for inspecting
architect(s) and engineer(s) and all other reasonable
costs and expenses of every character which may
hereafter be incurred by Beneficiary or any assignee
of Beneficiary in connection with the preparation and
execution of the amendments to the Credit Agreement
and the Loan Documents, amendments thereto or
instruments, agreements or documents of further
assurance, the funding of
30
the indebtedness secured hereby, and the enforcement
of any Loan Document; and
ii. Trustor shall, upon demand by Beneficiary, reimburse
Beneficiary or any assignee of Beneficiary for all
such reasonable expenses which have been incurred or
which shall be incurred by it; and
iii. Trustor shall indemnify Beneficiary with respect to
any transaction or matter in any way connected with
any portion of the Trust Estate, this Deed of Trust,
including any occurrence at, in, on, upon or about the
Trust Estate (including any personal injury, loss of
life, or property damage), or Trustor's use,
occupancy, or operation of the Trust Estate, or the
filing or enforcement of any mechanic's lien, or
otherwise caused in whole or in part by any act,
omission or negligence occurring on or at the Trust
Estate, including failure to comply with any Legal
Requirement or with any requirement of this Deed of
Trust that applies to Trustor, except to the extent
resulting from the gross negligence, fraud or willful
misconduct of Trustee or Beneficiary. If Beneficiary
is a party to any litigation as to which either
Trustor is required to indemnify Beneficiary (or is
made a defendant in any action of any kind against
Trustor or relating directly or indirectly to any
portion of the Trust Estate) then, at Beneficiary's
option, Trustor shall undertake Beneficiary's defense,
using counsel reasonably satisfactory to Beneficiary
(and any settlement shall be subject to Beneficiary's
consent, which consent shall not be unreasonably
withheld) and in any case shall indemnify Beneficiary
against such litigation. Trustor shall pay all
reasonable costs and expenses, including reasonable
legal costs, that
31
Beneficiary pays or incurs in connection with any such
litigation. Any amount payable under any indemnity in
this Deed of Trust shall be a demand obligation, shall
be added to, and become a part of, the secured
obligations under this Deed of Trust, shall be secured
by this Deed of Trust, and shall bear interest at the
interest rate specified in the Credit Agreement. Such
indemnity shall survive any release of this Deed of
Trust and any foreclosure.
p. Beneficiary's Cure of Trustor's Default. If Trustor defaults
hereunder in the payment of any tax, assessment, lien,
encumbrance or other Imposition, in its obligation to furnish
insurance hereunder, or in the performance or observance of
any other covenant, condition or term of this Deed of Trust or
any other Loan Document or any FF&E Financing, Beneficiary
may, but is not obligated to, to preserve its interest in the
Trust Estate, perform or observe the same, but only upon not
less than five (5) Business Days notice to Trustor and all
payments made (whether such payments are regular or
accelerated payments) and reasonable costs and expenses
incurred or paid by Beneficiary in connection therewith shall
become due and payable immediately. The amounts so incurred
or paid by Beneficiary, together with interest thereon at the
Default Rate from the date incurred until paid by Trustor,
shall be added to the indebtedness and secured by the lien of
this Deed of Trust. Beneficiary is hereby empowered to enter
and to authorize others to enter upon the Site or any part
thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby
becoming liable to Trustor or any person in possession holding
under Trustor. No exercise of any rights under this
Section 1.16 by Beneficiary shall cure or waive any Event of
Default or notice of default hereunder or invalidate any act
done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
32
q. Defense of Actions. Trustor shall appear in and defend any
action or proceeding affecting or purporting to affect the
security hereof or the rights or powers of Beneficiary or
Trustee, and shall pay all costs and expenses, including cost
of title search and insurance or other evidence of title,
preparation of survey, and reasonable attorneys' fees in any
such action or proceeding in which Beneficiary or Trustee may
appear or may be joined as a party and in any suit brought by
Beneficiary based upon or in connection with this Deed of
Trust or any Loan Document. Nothing contained in this Section
shall, however, limit the right of Beneficiary to appear in
such action or proceeding with counsel of its own choice,
either on its own behalf or on behalf of Trustor.
ARTICLE 2.
CORPORATE LOAN PROVISIONS
a. Interaction with Credit Agreement.
i. Incorporation by Reference. All terms, covenants,
conditions, provisions and requirements of the Credit
Agreement are incorporated by reference in this Deed
of Trust.
ii. Conflicts. In the event of any conflict or
inconsistency between the provisions of this Deed of
Trust and those of the Credit Agreement, the
provisions of the Credit Agreement shall govern.
b. Other Collateral. This Deed of Trust is one of a number of
security agreements to secure the debt delivered by or on
behalf of Trustor pursuant to the Credit Agreement and the
other Loan Documents and securing the Obligations secured
hereunder. All potential junior Lien claimants are placed on
notice that, under the Credit Agreement and each other Loan
Document granting a security interest to the Beneficiary or
33
otherwise (such as by separate future unrecorded agreement
between Trustor and Beneficiary), other collateral for the
Obligations secured hereunder (i.e., collateral other than the
Trust Estate) may, under certain circumstances, be released
without a corresponding reduction in the total principal
amount secured by this Deed of Trust. Such a release would
decrease the amount of collateral securing the same
indebtedness, thereby increasing the burden on the remaining
Trust Estate created and continued by this Deed of Trust.
No such release shall impair the priority of the lien of this
Deed of Trust. By accepting its interest in the Trust Estate,
each and every junior Lien claimant shall be deemed to have
acknowledged the possibility of, and consented to, any such
release. Nothing in this paragraph shall impose any
obligation upon Beneficiary.
ARTICLE 3.
DEFAULTS
a. Event of Default. The term "Event of Default," wherever used
in this Deed of Trust, shall mean any one or more of the
events of default listed in Section 8 of the Credit Agreement
(whether any such event shall be voluntary or involuntary or
come about or be effected by operation of law or pursuant to
or in compliance with any judgment, decree or order of any
court or any order, rule or regulation of any administrative
or governmental body).
ARTICLE 4.
REMEDIES
a. Acceleration of Maturity. If an Event of Default occurs,
Beneficiary may (except that such acceleration shall be
automatic if any Event of Default under clauses (a) through
(e) of Section 8.1.10 of the Credit Agreement shall occur),
declare
34
the Notes and all indebtedness or sums secured hereby, to be
due and payable immediately, and upon such declaration such
principal and interest and other sums shall immediately become
due and payable without demand, presentment, notice or other
requirements of any kind (all of which Trustor waives)
notwithstanding anything in this Deed of Trust or any Loan
Document or applicable law to the contrary.
b. Protective Advances. If Trustor fails to make any payment or
perform any other obligation under the Notes or any other Loan
Documents, then without thereby limiting Beneficiary's other
rights or remedies, waiving or releasing any of Trustor's
obligations, or imposing any obligation on Beneficiary,
Beneficiary may either advance any amount owing or perform any
or all actions that Beneficiary considers necessary or
appropriate to cure such default. All such advances shall
constitute "Protective Advances." Protective Advances shall
bear interest at the Default Rate from the date so advanced
until paid in full. No sums advanced or performance rendered
by Beneficiary shall cure, or be deemed a waiver of any Event
of Default.
c. Institution of Equity Proceedings. If an Event of Default
occurs, Beneficiary may institute an action, suit or
proceeding in equity for specific performance of this Deed of
Trust, the Credit Agreement or any other Loan Document which
grants a security interest for the benefit of the Beneficiary,
all of which shall be specifically enforceable by injunction
or other equitable remedy. Trustor waives any defense based
on laches or any applicable statute of limitations.
d. Beneficiary's Power of Enforcement.
i. If an Event of Default occurs, Beneficiary shall be
entitled, at its option and in its sole and absolute
discretion, to prepare and record on its own behalf,
or to deliver to Trustee for recording, if
appropriate, written declaration of default and demand
for sale and written Notice of
35
Breach and Election to Sell (NRS 107.080(3) (or other
statutory notice) to cause the Trust Estate to be sold
to satisfy the obligations hereof, and in the case of
delivery to Trustee, Trustee shall cause said notice
to be filed for record.
ii. After the lapse of such time as may then be required
by law following the recordation of said Notice of
Breach and Election to Sell, and notice of sale having
been given as then required by law, including
compliance with all applicable Nevada Gaming Laws,
Trustee without demand on Trustor, shall sell the
Trust Estate or any portion thereof at the time and
place fixed by it in said notice, either as a whole or
in separate parcels, and in such order as it may
determine, at public auction to the highest bidder, of
cash in lawful money of the United States payable at
the time of sale. Trustee may, for any cause it deems
expedient, postpone the sale of all or any portion of
said property until it shall be completed and, in
every case, notice of postponement shall be given by
public announcement thereof at the time and place last
appointed for the sale and from time to time
thereafter Trustee may postpone such sale by public
announcement at the time fixed by the preceding
postponement. Trustee shall execute and deliver to
the purchaser its Deed, Bill of Sale, or other
instrument conveying said property so sold, but
without any covenant or warranty, express or implied.
The recitals in such instrument of conveyance of any
matters or facts shall be conclusive proof of the
truthfulness thereof. Any person, including
Beneficiary, may bid at the sale.
36
iii. After deducting all costs, fees and expenses of
Trustee and of this Deed of Trust, including, without
limitation, costs of evidence of title and reasonable
attorneys' fees of Trustee or Beneficiary in
connection with a sale, Trustee shall apply the
proceeds of such sale to payment of all sums expended
under the terms hereof not then repaid, with accrued
interest at the Default Rate to the payment of all
other sums then secured hereby and the remainder, if
any, to the person or persons legally entitled thereto
as provided in NRS 40.462.
iv. Subject to compliance with applicable Nevada Gaming
Laws, if any Event of Default occurs, Beneficiary may,
either with or without entry or taking possession of
the Trust Estate, and without regard to whether or not
the indebtedness and other sums secured hereby shall
be due and without prejudice to the right of
Beneficiary thereafter to bring an action or
proceeding to foreclose or any other action for any
default existing at the time such earlier action was
commenced, proceed by any appropriate action or
proceeding: (1) to enforce payment of the Notes, to
the extent permitted by law, or the performance of any
term hereof or any other right; (2) to foreclose this
Deed of Trust in any manner provided by law for the
foreclosure of mortgages or deeds of trust on real
property and to sell, as an entirety or in separate
lots or parcels, the Trust Estate or any portion
thereof pursuant to the laws of the State of Nevada or
under the judgment or decree of a court or courts of
competent jurisdiction, and Beneficiary shall be
entitled to recover in any such proceeding all costs
and expenses incident thereto, including reasonable
attorneys' fees in such amount as shall be awarded by
the court;
37
(3) to exercise any or all of the rights and remedies
available to it under the Credit Agreement; and (4) to
pursue any other remedy available to it. Beneficiary
shall take action either by such proceedings or by the
exercise of its powers with respect to entry or taking
possession, or both, as Beneficiary may determine.
v. The remedies described in this Section 4.4 may be
exercised with respect to all or any portion of the
Personal Property, either simultaneously with the sale
of any real property encumbered hereby or independent
thereof. Beneficiary shall at any time be permitted
to proceed with respect to all or any portion of the
Personal Property in any manner permitted by the UCC.
Trustor agrees that Beneficiary's inclusion of all or
any portion of the Personal Property (and all personal
property that is subject to a security interest in
favor, or for the benefit, of Beneficiary) in a sale
or other remedy exercised with respect to the real
property encumbered hereby, as permitted by the UCC,
is a commercially reasonable disposition of such
property.
e. Beneficiary's Right to Enter and Take Possession, Operate and
Apply Income.
i. Subject to compliance with applicable Nevada Gaming
Laws, if an Event of Default occurs, (i) Trustor, upon
demand of Beneficiary, shall forthwith surrender to
Beneficiary the actual possession and, if and to the
extent permitted by law, Beneficiary itself, or by
such officers or agents as it may appoint, may enter
and take possession of all the Trust Estate including
the Personal Property, without liability for trespass,
damages or otherwise, and may exclude Trustor and its
agents and employees wholly therefrom
38
and may have joint access with Trustor to the books,
papers and accounts of Trustor; and (ii) Trustor shall
pay monthly in advance to Beneficiary on Beneficiary's
entry into possession, or to any receiver appointed to
collect the Rents, all Rents then due and payable.
ii. If Trustor shall for any reason fail to surrender or
deliver the Trust Estate, the Personal Property or any
part thereof after Beneficiary's demand, Beneficiary
may obtain a judgment or decree conferring on
Beneficiary or Trustee the right to immediate
possession or requiring Trustor to deliver immediate
possession of all or part of such property to
Beneficiary or Trustee and Trustor hereby specifically
consents to the entry of such judgment or decree.
Trustor shall pay to Beneficiary or Trustee, upon
demand, all reasonable costs and expenses of obtaining
such judgment or decree and reasonable compensation to
Beneficiary or Trustee, their attorneys 'and agents,
and all such costs, expenses and compensation shall,
until paid, be secured by the lien of this Deed of
Trust.
iii. Subject to compliance with applicable Nevada Gaming
Laws, upon every such entering upon or taking of
possession, Beneficiary or Trustee may hold, store,
use, operate, manage and control the Trust Estate and
conduct the business thereof, and, from time to time
in its sole and absolute discretion and without being
under any duty to so act:
(1) make all necessary and proper maintenance,
repairs, renewals, replacements, additions,
betterments and improvements
39
thereto and thereon and purchase or otherwise
acquire additional fixtures, personalty and
other property;
(2) insure or keep the Trust Estate insured;
(3) manage and operate the Trust Estate and
exercise all the rights and powers of Trustor
in their name or otherwise with respect to the
same;
(4) enter into agreements with others to
exercise the powers herein granted Beneficiary
or Trustee, all as Beneficiary or Trustee from
time to time may determine; and, subject to
the absolute assignment of the Rents and
Leases to Beneficiary, Beneficiary or Trustee
may collect and receive all the Rents,
including those past due as well as those
accruing thereafter; and shall apply the
monies so received by Beneficiary or Trustee
in such priority as Beneficiary may determine
to (1) the payment of interest and principal
due and payable on the Notes, (2) the deposits
for taxes and assessments and insurance
premiums due, (3) the cost of insurance,
taxes, assessments and other proper charges
upon the Trust Estate or any part thereof; (4)
the compensation, expenses and
40
disbursements of the agents, attorneys and
other representatives of Beneficiary or
Trustee; and (5) any other charges or costs
required to be paid by Trustor under the terms
hereof; and
(5) rent or sublet the Trust Estate or any
portion thereof for any purpose permitted by
this Deed of Trust.
Beneficiary, or Trustee shall surrender possession of the Trust Estate
and the Personal Property to Trustor only when all accrued and unpaid such
interest and principal, tax and insurance deposits, and all amounts under any
of the terms of the Credit Agreement, this Deed of Trust or any other Loan
Document, shall have been paid in full. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall occur and be
continuing.
f. Leases. Beneficiary is authorized to foreclose this Deed of
Trust subject to the rights of any tenants of the Trust
Estate, and the failure to make any such tenants parties
defendant to any such foreclosure proceedings and to foreclose
their rights shall not be, nor be asserted by Trustor to be, a
defense to any proceedings instituted by Beneficiary to
collect the sums secured hereby or to collect any deficiency
remaining unpaid after the foreclosure sale of the Trust
Estate, or any portion thereof. Unless otherwise agreed by
Beneficiary, in writing, all Space Leases executed subsequent
to the date hereof, or any part thereof, shall be subordinate
and inferior to the lien of this Deed of Trust; provided,
however that (i) Beneficiary may require that a
non-disturbance and attornment agreement in connection with
certain Space Leases; and (ii) from time to time Beneficiary
may execute and record among the land records of the
jurisdiction where this Deed of Trust is recorded,
subordination statements with respect to such of said Space
Leases as Beneficiary may designate in its sole discretion,
whereby the Space Leases so designated by Beneficiary
41
shall be made superior to the lien of this Deed of Trust for
the term set forth in such subordination statement. From and
after the recordation of such subordination statements, and
for the respective periods as may be set forth therein, the
Space Leases therein referred to shall be superior to the lien
of this Deed of Trust and shall not be affected by any
foreclosure hereof. All such Space Leases shall contain a
provision to the effect that the Trustor and Space Lessee
recognize the right of Beneficiary to elect and to effect such
subordination of this Deed of Trust and consents thereto.
g. Purchase by Beneficiary. Upon any foreclosure sale (whether
judicial or nonjudicial), Beneficiary may bid for and purchase
the property subject to such sale and, upon compliance with
the terms of sale, may hold, retain and possess and dispose of
such property in its own absolute right without further
accountability.
h. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Trustor agrees to the full extent permitted
by law that if an Event of Default occurs, neither Trustor nor
anyone claiming through or under it shall or will set up,
claim or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter
in force, in order to prevent or hinder the enforcement or
foreclosure of this Deed of Trust or the absolute sale of the
Trust Estate or any portion thereof or the final and absolute
putting into possession thereof, immediately after such sale,
of the purchasers thereof, and Trustor for itself and all who
may at any time claim through or under it, hereby waives, to
the full extent that it may lawfully so do, the benefit of all
such laws, and any and all right to have the assets comprising
the Trust Estate marshaled upon any foreclosure of the lien
hereof and agrees that Trustee or any court having
jurisdiction to foreclose such lien may sell the Trust Estate
in part or as an entirety.
i. Receiver. If an Event of Default occurs, Beneficiary, to the
extent permitted by law and subject to compliance with all
applicable Nevada Gaming Laws, and without regard to the
42
value, adequacy or occupancy of the security for the
indebtedness and other sums secured hereby, shall be entitled
as a matter of right if it so elects to the appointment of a
receiver to enter upon and take possession of the Trust Estate
and to collect all Rents and apply the same as the court may
direct, and such receiver may be appointed by any court of
competent jurisdiction upon application by Beneficiary.
Beneficiary may have a receiver appointed without notice to
Trustor or any third party, and Beneficiary may waive any
requirement that the receiver post a bond. Beneficiary shall
have the power to designate and select the Person who shall
serve as the receiver and to negotiate all terms and
conditions under which such receiver shall serve. Any
receiver appointed on Beneficiary's behalf may be an Affiliate
of Beneficiary. The expenses, including receiver's fees,
attorneys' fees, costs and agent's compensation, incurred
pursuant to the powers herein contained shall be secured by
this Deed of Trust. The right to enter and take possession of
and to manage and operate the Trust Estate and to collect all
Rents, whether by a receiver or otherwise, shall be cumulative
to any other right or remedy available to Beneficiary under
this Deed of Trust, the Credit Agreement or otherwise
available to Beneficiary and may be exercised concurrently
therewith or independently thereof. Beneficiary shall be
liable to account only for such Rents (including, without
limitation, security deposits) actually received by
Beneficiary, whether received pursuant to this Section or any
other provision hereof. Notwithstanding the appointment of
any receiver or other custodian, Beneficiary shall be entitled
as pledgee to the possession and control of any cash,
deposits, or instruments at the time held by, or payable or
deliverable under the terms of this Deed of Trust to,
Beneficiary.
j. Suits to Protect the Trust Estate. Beneficiary shall have the
power and authority to institute and maintain any suits and
proceedings as Beneficiary, in its sole and absolute
discretion, may deem advisable (a) to prevent any impairment
of the Trust Estate by any acts which may be unlawful or in
violation of this Deed of Trust, (b) to preserve or protect
its interest in
43
the Trust Estate, or (c) to restrain the enforcement of or
compliance with any legislation or other Legal Requirement
that may be unconstitutional or otherwise invalid, if the
enforcement of or compliance with such enactment, rule or
order might impair the security hereunder or be prejudicial to
Beneficiary's interest.
k. Proofs of Claim. In the case of any receivership, Insolvency,
Bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceedings affecting Trustor,
or, to the extent the same would result in an Event of Default
hereunder, any Subsidiary, or any guarantor, co-maker or
endorser of any of Trustor's obligations, its creditors or its
property, Beneficiary, to the extent permitted by law, shall
be entitled to file such proofs of claim or other documents as
it may deem to be necessary or advisable in order to have its
claims allowed in such proceedings for the entire amount due
and payable by Trustor under the Notes, any other Loan
Document, at the date of the institution of such proceedings,
and for any additional amounts which may become due and
payable by Trustor after such date.
l. Trustor to Pay the Notes on Any Default in Payment:
Application of Monies by Beneficiary.
i. In case of a foreclosure sale of all or any part of
the Trust Estate and of the application of the
proceeds of sale to the payment of the sums secured
hereby, Beneficiary shall be entitled to enforce
payment from Trustor of any additional amounts then
remaining due and unpaid and to recover judgment
against Trustor for any portion thereof remaining
unpaid, with interest at the Default Rate in
accordance with Section 4.19 hereof.
ii. Trustor hereby agrees to the extent permitted by law,
that no recovery of any such judgment by Beneficiary
or other action by Beneficiary and no attachment or
levy of any execution upon any of the Trust Estate or
44
any other property shall in any way affect the Lien
and security interest of this Deed of Trust upon the
Trust Estate or any part thereof or any Lien, rights,
powers or remedies of Beneficiary hereunder, but such
Lien, rights, powers and remedies shall continue
unimpaired as before.
iii. Any monies collected or received by Beneficiary under
this Section 4.12 shall be first applied to the
payment of reasonable compensation, expenses and
disbursements of the agents, attorneys and other
representatives of Beneficiary, and the balance
remaining shall be applied to the payment of amounts
due and unpaid under the Notes.
iv. The provisions of this Section shall not be deemed to
limit or otherwise modify the provisions of any
guaranty of the indebtedness evidenced by the Notes.
m. Delay or Omission; No Waiver. No delay or omission of
Beneficiary to exercise any right, power or remedy upon any
Event of Default shall exhaust or impair any such right, power
or remedy or shall be construed to waive any such Event of
Default or to constitute acquiescence therein. Every right,
power and remedy given to Beneficiary whether contained herein
or in the Credit Agreement or otherwise available to
Beneficiary may be exercised from time to time and as often as
may be deemed expedient by Beneficiary.
n. No Waiver of One Default to Affect Another. No waiver of any
Event of Default hereunder shall extend to or affect any
subsequent or any other Event of Default then existing, or
impair any rights, powers or remedies consequent thereon. If
Beneficiary (a) grants forbearance or an extension of time for
the payment of any sums secured hereby; (b) takes other or
additional security for the payment thereof; (c) waives or
does not exercise any right granted in the Notes, the Credit
Agreement, this Deed of Trust, or any other Loan Document; (d)
releases any part of the Trust Estate from the lien or
security
45
interest of this Deed of Trust or any other instrument
securing the Notes; (e) consents to the filing of any map,
plat or replat of the Site (to the extent such consent is
required); (f) consents to the granting of any easement on the
Site (to the extent such consent is required); or (g) makes or
consents to any agreement changing the terms of this Deed of
Trust, the Credit Agreement or any other Loan Document for the
benefit of Beneficiary subordinating the lien or any charge
hereof, no such act or omission shall release, discharge,
modify, change or affect the original liability under the
Notes, this Deed of Trust, the Credit Agreement or any other
Loan Document for the benefit of Beneficiary or otherwise of
Trustor, or any subsequent purchaser of the Trust Estate or
any part thereof or any maker, co-signer, surety or guarantor.
No such act or omission shall preclude Beneficiary from
exercising any right, power or privilege herein granted or
intended to be ranted in case of any Event of Default then
existing or of any subsequent Event of Default, nor, except as
otherwise expressly provided in an instrument or instruments
executed by Beneficiary, shall the lien or security interest
of this Deed of Trust be altered thereby, except to the extent
expressly provided in any releases, maps, easements or
subordinations described in clause (d), (e), (f) or (g) above
of this Section 4.14. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the Trust
Estate, Beneficiary, without notice to any person, firm or
corporation, is hereby authorized and empowered to deal with
any such vendee or transferee with reference to the Trust
Estate or the indebtedness secured hereby, or with reference
to any of the terms or conditions hereof, as fully and to the
same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any of the
liabilities or undertakings hereunder, or waiving its right to
declare such sale or transfer an Event of Default as provided
herein. Notwithstanding anything to the contrary contained in
this Deed of Trust, the Credit Agreement or any other Loan
Documents, (i) in the case of any nonmonetary Event of
Default, Beneficiary may continue to accept payments due
hereunder without thereby waiving the existence of such or any
other Event of Default and (ii) in the
46
case of any monetary Event of Default, Beneficiary may accept
partial payments of any sums due hereunder without thereby
waiving the existence of such Event of Default if the partial
payment is not sufficient to completely cure such Event of
Default.
o. Discontinuance of Proceedings; Position of Parties Restored.
If Beneficiary shall have proceeded to enforce any right or
remedy under this Deed of Trust by foreclosure, entry of
judgement or otherwise and such proceedings shall have been
discontinued or abandoned for any reason, or such proceedings
shall have resulted in a final determination adverse to
Beneficiary, then and in every such case Trustor and
Beneficiary shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of
Beneficiary shall continue as if no such proceedings had
occurred or had been taken.
p. Remedies Cumulative. No right, power or remedy, including
without limitation remedies with respect to any security for
the Notes, conferred upon or reserved to Beneficiary by this
Deed of Trust, the Credit Agreement or any other Loan Document
is exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power
and remedy given hereunder or under the Credit Agreement or
any other Loan Document, now or hereafter existing at law, in
equity or by statute, and Beneficiary shall be entitled to
resort to such rights, powers, remedies or security as
Beneficiary shall in its sole and absolute discretion deem
advisable.
q. Interest After Event of Default. If an Event of Default shall
have occurred and is continuing, all sums outstanding and
unpaid under the Notes and this Deed of Trust shall, at
Beneficiary's option, bear interest at the Default Rate until
such Event of Default has been cured. Trustor's obligation to
pay such interest shall be secured by this Deed of Trust.
47
r. Foreclosure; Expenses of Litigation. If Trustee forecloses,
reasonable attorneys' fees for services in the supervision of
said foreclosure proceeding shall be allowed to the Trustee
and Beneficiary as part of the foreclosure costs. In the
event of foreclosure of the lien hereof, there shall be
allowed and included as additional indebtedness all reasonable
expenditures and expenses which may be paid or incurred by or
on behalf of Beneficiary for attorneys' fees, appraiser's
fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which
may be estimated as to items to be expended after foreclosure
sale or entry of the decree) of procuring all such abstracts
of title, title searches and examinations, title insurance
policies and guarantees, and similar data and assurances with
respect to title as Beneficiary may deem reasonably advisable
either to prosecute such suit or to evidence to a bidder at
any sale which may be had pursuant to such decree the true
condition of the title to or the value of the Trust Estate or
any portion thereof. All expenditures and expenses of the
nature in this section mentioned, and such expenses and fees
as may be incurred in the protection of the Trust Estate and
the maintenance of the lien and security interest of this Deed
of Trust, including the fees of any attorney employed by
Beneficiary in any litigation or proceeding affecting this
Deed of Trust or any Loan Document, the Trust Estate or any
portion thereof, including, without limitation, civil,
probate, appellate and bankruptcy proceedings, or in
preparation for the commencement or defense of any proceeding
or threatened suit or proceeding, shall be immediately due and
payable by Trustor, with interest thereon at the Default Rate,
and shall be secured by this Deed of Trust. Trustee waives
its right to any statutory fee in connection with any judicial
or nonjudicial foreclosure of the lien hereof and agrees to
accept a reasonable fee for such services.
s. Deficiency Judgments. If after foreclosure of this Deed of
Trust or Trustee's sale hereunder, there shall remain any
deficiency with respect to any amounts payable under the Notes
or hereunder or any amounts secured hereby, and Beneficiary
shall institute any proceedings to recover such defi-
48
ciency or deficiencies, all such amounts shall continue to
bear interest at the Default Rate. Trustor waives any defense
to Beneficiary's recovery against Trustor of any deficiency
after any foreclosure sale of the Trust Estate. Trustor
expressly waives any defense or benefits that may be derived
from any statute granting Trustor any defense to any such
recovery by Beneficiary. In addition, Beneficiary and Trustee
shall be entitled to recovery of all of their reasonable costs
and expenditures (including without limitation any court
imposed costs) in connection with such proceedings, including
their reasonable attorneys' fees, appraisal fees and the other
costs, fees and expenditures referred to in Section 4.18
above. This provision shall survive any foreclosure or sale
of the Trust Estate, any portion thereof and/or the
extinguishment of the lien hereof.
t. Waiver of Jury Trial. The waiver of jury trial contained in
the Credit Agreement is hereby incorporated herein by this
reference.
u. Exculpation of Beneficiary. The acceptance by Beneficiary of
the assignment contained herein with all of the rights,
powers, privileges and authority created hereby shall not,
prior to entry upon and taking possession of the Trust Estate
by Beneficiary, be deemed or construed to make Beneficiary a
"mortgagee in possession"; nor thereafter or at any time or in
any event obligate Beneficiary to appear in or defend any
action or proceeding relating to the Space Leases, the Rents
or the Trust Estate, or to take any action hereunder or to
expend any money or incur any expenses or perform or discharge
any obligation, duty or liability under any Ground Lease or
any Space Lease or to assume any obligation or responsibility
for any security deposits or other deposits except to the
extent such deposits are actually received by Beneficiary, nor
shall Beneficiary, prior to such entry and taking, be liable
in any way for any injury or damage to person or property
sustained by any Person in or about the Trust Estate.
49
ARTICLE 5.
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust,
Trustor and Beneficiary agree as follows.
a. Exercise of Remedies by Trustee. To the extent that this Deed
of Trust or applicable law authorizes or empowers, or does not
require approval for, Beneficiary to exercise any remedies set
forth in Article 4 hereof or otherwise, or perform any acts in
connection therewith, Trustee (but not to the exclusion of
Beneficiary unless so required under the law of the State of
Nevada) shall have the power to exercise any or all such
remedies, and to perform any acts provided for in this Deed of
Trust in connection therewith, all for the benefit of
Beneficiary and on Beneficiary's behalf in accordance with
applicable law of the State of Nevada. In connection
therewith, Trustee: (a) shall not exercise, or waive the
exercise of, any Beneficiary's remedies (other than any rights
of Trustee to any indemnity or reimbursement), except at
Beneficiary's request, and (b) shall exercise, or waive the
exercise of, any or all of Beneficiary's remedies at
Beneficiary's request, and in accordance with Beneficiary's
directions as to the manner of such exercise or waiver.
Trustee may, however, decline to follow Beneficiary's request
or direction if Trustee shall be advised by counsel that the
action or proceeding, or manner thereof, so directed may not
lawfully be taken or waived.
b. Rights and Privileges of Trustee. To the extent that this
Deed of Trust requires Trustor to indemnify Beneficiary or
reimburse Beneficiary for any expenditures Beneficiary may
incur, Trustee shall be entitled to the same indemnity and the
same rights to reimbursement of expenses as Beneficiary,
subject to such limitations and conditions as would apply in
the case of Beneficiary. To the extent that this Deed of
Trust negates or limits Beneficiary's liability as to any
matter, Trustee shall be entitled to the same negation or
limitation of
50
liability. To the extent that Trustor, pursuant to this Deed
of Trust, appoints Beneficiary as Trustor's attorney in fact
for any purpose, Beneficiary or (when so instructed by
Beneficiary) Trustee shall be entitled to act on Trustor's
behalf without joinder or confirmation by the other.
c. Resignation or Replacement of Trustee. Trustee may resign by
an instrument in writing addressed to Beneficiary, and Trustee
may be removed at any time with or without cause (i.e., in
Beneficiary's sole and absolute discretion) by an instrument
in writing executed by Beneficiary. In case of the death,
resignation, removal or disqualification of Trustee or if for
any reason Beneficiary shall deem it desirable to appoint a
substitute, successor or replacement Trustee to act instead of
Trustee originally named (or in place of any substitute,
successor or replacement Trustee), then Beneficiary shall have
the right and is hereby authorized and empowered to appoint a
successor, substitute or replacement Trustee, without any
formality other than appointment and designation in writing
executed by Beneficiary, which instrument shall be recorded if
required by the law of the State of Nevada. The laws of the
State of Nevada shall govern the qualifications of any
Trustee. The authority conferred upon Trustee by this Deed of
Trust shall automatically extend to any and all other
successor, substitute and replacement Trustee(s) successively
until the obligations secured hereunder have been paid in full
or the Trust Estate has been sold hereunder or released in
accordance with the provisions of the Credit Agreement and
each other Loan Document to which the Beneficiary is a party
or which grants a security for the benefit of the Beneficiary.
Beneficiary's written appointment and designation of any
Trustee shall be full evidence of Beneficiary's right and
authority to make the same and of all facts therein recited.
No confirmation, authorization, approval or other action by
Trustor shall be required in connection with any resignation
or other replacement of Trustee.
d. Authority of Beneficiary. If Beneficiary is a banking
corporation, state banking corporation or a national banking
associa-
51
tion and the instrument of appointment of any successor or
replacement Trustee is executed on Beneficiary's behalf by an
officer of such corporation, state banking corporation or
national banking association, then such appointment shall be
conclusively presumed to be executed with authority and shall
be valid and sufficient without proof of any action by the
board of directors or any superior officer of Beneficiary.
e. Effect of Appointment of Successor Trustee. Upon the
appointment and designation of any successor, substitute or
replacement Trustee, and subject to compliance with applicable
laws, Trustee's entire estate and title in the Trust Estate
shall vest in the designated successor, substitute or
replacement Trustee. Such successor, substitute or
replacement Trustee shall thereupon succeed to and shall hold,
possess and execute all the rights, powers, privileges,
immunities and duties herein conferred upon Trustee. All
references herein to Trustee shall be deemed to refer to
Trustee (including any successor or substitute appointed and
designated as herein provided) from time to time acting
hereunder.
f. Confirmation of Transfer and Succession. Upon the written
request of Beneficiary or of any successor, substitute or
replacement Trustee, any former Trustee ceasing to act shall
execute and deliver an instrument transferring to such
successor, substitute or replacement Trustee all of the right,
title, estate and interest in the Trust Estate of Trustee so
ceasing to act, together with all the rights, powers,
privileges, immunities and duties herein conferred upon
Trustee, and shall duly assign, transfer and deliver all
properties and moneys held by said Trustee hereunder to said
successor, substitute or replacement Trustee.
g. Exculpation. Trustee shall not be liable for any error of
judgment or act done by Trustee in good faith, or otherwise be
responsible or accountable under any circumstances whatsoever,
except for Trustee's negligence, misconduct or knowing
violation of law. Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting
52
any action taken or proposed to be taken by it hereunder,
believed by it in good faith to be genuine. All moneys
received by Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from
any other moneys (except to the extent required by law).
Trustee shall be under no liability for interest on any moneys
received by it hereunder.
h. Endorsement and Execution of Documents. Upon Beneficiary's
written request, Trustee shall, without liability or notice to
Trustor, execute, consent to, or join in any instrument or
agreement in connection with or necessary to effectuate the
purposes of the Credit Agreement and each other Loan Document
to which the Beneficiary is a party or which grants a security
interest for the benefit of the Beneficiary. Trustor hereby
irrevocably designates Trustee as its attorney in fact to
execute, acknowledge and deliver, on Trustor's behalf and in
Trustor's name, all instruments or agreements necessary to
implement any provision(s) of this Deed of Trust or to further
perfect the lien created by this Deed of Trust on the Trust
Estate. This power of attorney shall be deemed to be coupled
with an interest and shall survive any disability of Trustor.
i. Multiple Trustees. If Beneficiary appoints multiple trustees,
then any Trustee, individually, may exercise all powers
granted to Trustee under this instrument, without the need for
action by any other Trustee(s).
j. Terms of Trustee's Acceptance. Trustee accepts the trust
created by this Deed of Trust upon the following terms and
conditions:
i. Delegation. Trustee may exercise any of its powers
through appointment of attorneys) in fact or agents.
ii. Counsel. Trustee may select and employ legal counsel
(including any law firm representing
53
Beneficiary). Trustor shall reimburse all reasonable
legal fees and expenses that Trustee may thereby
incur.
iii. Security. Trustee shall be under no obligation to
take any action upon any Event of Default unless
furnished security or indemnity, in form satisfactory
to Trustee, against costs, expenses, and liabilities
that Trustee may incur.
iv. Costs and Expenses. Trustor shall reimburse Trustee,
as part of the Obligations secured hereunder, for all
reasonable disbursements and expenses incurred by
reason of and as provided for in this Deed of Trust,
including any of the foregoing incurred in Trustee's
administering and executing the trust created by this
Deed of Trust and performing Trustee's duties and
exercising Trustee's powers under this Deed of Trust.
v. Release. Upon satisfaction of the conditions for
reconveyance contained in Section 6.10 hereof,
Beneficiary shall request that Trustee release this
Deed of Trust and Trustee shall release this Deed of
Trust and reconvey to the Trust Estate in accordance
with Section 6. 10 hereof, provided, however, that
Trustor shall pay all costs of recordation, if any,
and all of Trustee's and Beneficiary's costs and
expenses in connection with such release, including,
but not limited to, reasonable attorneys' fees.
54
ARTICLE 6.
MISCELLANEOUS PROVISIONS
a. Heirs, Successors and Assigns Included in Parties. Whenever
one of the parties hereto is named or referred to herein, the
heirs, successors and assigns of such party shall be included,
and subject to the limitations set forth in the Credit
Agreement, all covenants and agreements contained in this Deed
of Trust, by or on behalf of Trustor or Beneficiary shall bind
and inure to the benefit of its heirs, successors and assigns,
whether so expressed or not.
b. Addresses for Notices, Etc. All notices and other
communications provided to any party hereto under this Deed of
Trust or any other Loan Document shall be in writing and
addressed, delivered or transmitted to such party at the
address or facsimile number set forth below or at such other
address or facsimile number as may be designated by such party
in a notice to the other parties. All such notices and
communications shall be deemed to have been properly given if
(x) hand delivered with receipt acknowledged by the recipient;
(y) if mailed, upon the fifth (5th) Business Day after the
date on which it is deposited in registered or certified mail,
postage prepaid, return receipt requested or (z) if by Federal
Express or other nationally-recognized express courier service
with instructions to deliver on the following Business Day, on
the next Business Day after delivery to such express courier
service. Notices and other communications may be given by
facsimile but shall be deemed to be received upon automatic
facsimile confirmation of receipt thereof by the intended
recipient machine therefor with the original of such notice or
communication to be given in the manner provided in the second
sentence of this Section; provided, however, that the failure
to deliver a copy in accordance with the second sentence of
this Section shall not invalidate the effectiveness of such
facsimile notice.
55
Beneficiary: The Bank of Nova Scotia
580 California Street
21st Floor
San Francisco, California 94104
Attention: Mr. Alan Pendergast
Telephone: (415) 616-4155
Telefax: (415) 397-0791
With a copy to: The Bank of Nova Scotia
Loan Administration
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Marianne Velker
Telephone: (404) 877-1500
Telefax: (404) 888-8988
Trustor: Aladdin Gaming, LLC
2810 West Charleston Boulevard
Suite F58
Las Vegas, Nevada 89102
Attention: Jack Sommer
Telephone: (702) 870-1234
Telefax: (702) 870-8733
Trustee: Stewart Title of Nevada
3800 Howard Hughes Parkway
Suite 500
Las Vegas, Nevada 89109
Attention: Linda J. Jones
Telephone: (702) 791-7000
Telefax: (702) 733-6401
Any Person may change the address to which any such notice, report, demand or
other instrument is to be delivered or mailed to that person, by furnishing
written notice of such change to the other parties, but no such notice of
change shall be effective unless and until received by such other parties.
56
c. Headings. The headings of the articles, sections, paragraphs
and subdivisions of this Deed of Trust are for convenience of
reference only, are not to be considered a part hereof, and
shall not limit or expand or otherwise affect any of the terms
hereof.
d. Invalid Provisions to Affect No Others. In the event that any
of the covenants, agreements, terms or provisions contained
herein or in the Notes, the Credit Agreement or any other Loan
Document shall be invalid, illegal or unenforceable in any
respect, the validity of the lien hereof and the remaining
covenants, agreements, terms or provisions contained herein or
in the Notes, the Credit Agreement or any other Loan Document
shall be in no way affected, prejudiced or disturbed thereby.
To the extent permitted by law, Trustor waives any provision
of law which renders any provision hereof prohibited or
unenforceable in any respect.
e. Changes and Priority Over Intervening Liens. Neither this
Deed of Trust nor any term hereof may be changed, waived,
discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or
termination is sought. Any agreement hereafter made by
Trustor and Beneficiary relating to this Deed of Trust shall
be superior to the rights of the holder of any intervening
lien or encumbrance.
f. Estoppel Certificates. Within ten (10) Business Days after
Beneficiary's written request, Trustor shall from time to time
execute a certificate, in recordable form (an "Estoppel
Certificate"), stating, except to the extent it would be
inaccurate to so state: (a) the current amount of the
Obligations secured hereunder and all elements thereof,
including principal, interest, and all other elements; (b)
that Trustor has no defense, offset, claim, counterclaim,
right of recoupment, deduction, or reduction against any of
the Obligations secured hereunder; (c) that none of the Loan
Documents to which the Beneficiary is a party or which grants
a security interest for the benefit of the Beneficiary have
been amended, whether orally or in writing;
57
(d) that Trustor has no claims against Beneficiary of any
kind; (e) that any Power of Attorney granted to Beneficiary is
in full force and effect; and (f) such other matters relating
to this Deed of Trust, and each other Loan Document to which
the Beneficiary is a party or which grants a security interest
for the benefit of the Beneficiary and the relationship of
Trustor and Beneficiary as Beneficiary shall request. In
addition, the Estoppel Certificate shall set forth the reasons
why it would be inaccurate to make any of the foregoing
assurances ("a" through "f").
g. Waiver of Setoff and Counterclaim. All amounts due under this
Deed of Trust, the Notes, the Credit Agreement and each other
Loan Document to which the Beneficiary is a party or which
grants a security interest for the benefit of the Beneficiary
shall be payable without setoff, counterclaim or any deduction
whatsoever. Trustor hereby waives the right to assert a
counterclaim (other than a compulsory counterclaim) in any
action or proceeding brought against it by Beneficiary and/or
any Lender under the Credit Agreement, or arising out of or in
any way connected with this Deed of Trust, the other Loan
Documents to which the Beneficiary is a party or which grants
a security interest for the benefit of the Beneficiary or the
Obligations.
h. Governing Law. The Credit Agreement and the Notes provide
that they are governed by, and construed and enforced in
accordance with, the laws of the State of New York. This Deed
of Trust shall also be construed under and governed by the
laws of the State of New York; provided, however, that (i) the
terms and provisions of this Deed of Trust pertaining to the
priority, perfection, enforcement or realization by
Beneficiary of its respective rights and remedies under this
Deed of Trust with respect to the Trust Estate shall be
governed and construed and enforced in accordance-with the
internal laws of the State of Nevada (the "State") without
giving effect to the conflicts-of-law rules and principles of
the State; (ii) Trustor agrees that to the extent deficiency
judgments are available under the laws of the State after a
foreclosure (judicial or
58
nonjudicial) of the Trust Estate, or any portion thereof, or
any other realization thereon by Beneficiary or any Lender
under the Credit Agreement, Beneficiary or such Lender, as the
case may be, shall have the right to seek such a deficiency
judgment against Trustor in the State; and (iii) Trustor
agrees that if Beneficiary or any Lender under the Credit
Agreement obtains a deficiency judgment in another state
against Trustor, then Beneficiary or such Lender, as the case
may be, shall have the right to enforce such judgment in the
State to the extent permitted under the laws of the State, as
well as in other states. Nothing contained in this Section
shall be deemed to expand the limitations set forth in
Section 10.9 of the Credit Agreement.
i. Required Notices. Trustor shall notify Beneficiary promptly
of the occurrence of any of the following and shall
immediately provide Beneficiary a copy of the notice or
documents referred to: (i) receipt of notice from any
Governmental Instrumentality relating to all or any material
part of the Trust Estate if such notice relates to a default
or act, omission or circumstance which would result in a
default after notice or passage of time or both; or (ii)
receipt of any notice from any tenant leasing all or any
material portion of the Trust Estate if such notice relates to
a default or act, omission or circumstance which would result
in a default after notice or passage of time or both.
j. Reconveyance. Upon written request of Trustor after the
Obligations secured hereby have been satisfied in full,
Beneficiary shall cause Trustee to reconvey, without warranty,
the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof. The grantee in such reconveyance
may be described as "the person or persons legally entitled
thereto."
k. Attorneys' Fees. Without limiting any other provision
contained herein, Trustor agrees to pay all costs of
Beneficiary or Trustee incurred in connection with the
enforcement of this
59
Deed of Trust, the Credit Agreement or any other Loan
Document, including without limitation all reasonable
attorneys' fees whether or not suit is commenced, and
including, without limitation, fees incurred in connection
with any probate, appellate, bankruptcy, deficiency or any
other litigation proceedings, all of which sums shall be
secured hereby.
l. Late Charges. By accepting payment of any sum secured hereby
after its due date, Beneficiary does not waive its right to
collect any late charge thereon or interest thereon at the
interest rate on the Notes, if so provided, not then paid or
its right either to require prompt payment when due of all
other sums so secured or to declare default for failure to pay
any amounts not so paid.
m. Cost of Accounting. Trustor shall pay to Beneficiary, for and
on account of the preparation and rendition of any accounting,
which Trustor may be entitled to require under any law or
statute now or hereafter providing therefor, the reasonable
costs thereof.
n. Right of Entry. Beneficiary may at any reasonable time or
times and on reasonable prior written notice to Trustor make
or cause to be made entry upon and inspections of the Trust
Estate or any part thereof in person or by agent.
o. Corrections. Trustor shall, upon request of Beneficiary or
Trustee, promptly correct any defect, error or omission which
may be discovered in the contents of this Deed of Trust
(including, but not limited to, in the exhibits and schedules
attached hereto) or in the execution or acknowledgement
hereof, and shall execute, acknowledge and deliver such
further instruments and do such further acts as may be
necessary or as may be reasonably requested by Trustee to
carry out more effectively the purposes of this Deed of Trust,
to subject to the lien and security interest hereby created
any of Trustor's properties, rights or interest covered or
intended to be covered hereby, and to perfect and maintain
such lien and security interest.
60
p. Statute of Limitations. To the fullest extent allowed by the
law, the right to plead, use or assert any statute of
limitations as a plea or defense or bar of any kind, or for
any purpose, to any debt, demand or obligation secured or to
be secured hereby, or to any complaint or other pleading or
proceeding filed, instituted or maintained for the purpose of
enforcing this Deed of Trust or any rights hereunder, is
hereby waived by Trustor.
q. Subrogation. Should the proceeds of any loan or advance made
by Beneficiary to Trustor, repayment of which is hereby
secured, or any part thereof, or any amount paid out or
advanced by Beneficiary, be used directly or indirectly to pay
off, discharge, or satisfy, in whole or in part, any prior or
superior lien or encumbrance upon the Trust Estate, or any
part thereof, then, as additional security hereunder, Trustee,
on behalf of Beneficiary, shall be subrogated to any and all
rights, superior titles, liens, and equities owned or claimed
by any owner or holder of said outstanding liens, charges, and
indebtedness, however remote, regardless of whether said
liens, charges, and indebtedness are acquired by assignment or
have been released of record by the holder thereof upon
payment.
r. Joint and Several Liability. All obligations of Trustor
hereunder, if more than one, are joint and several. Recourse
for deficiency after sale hereunder may be had against the
property of Trustor, without, however, creating a present or
other lien or charge thereon.
s. Homestead. Trustor hereby waives and renounces all homestead
and exemption rights provided by the constitution and the laws
of the United States and of any state, in and to the Trust
Estate as against the collection of the Obligations, or any
part hereof.
t. Context. In this Deed of Trust, whenever the context so
requires, the neuter includes the masculine and feminine, and
the singular including the plural, and vice versa.
61
u. Time. Time is of the essence of each and every term, covenant
and condition hereof. Unless otherwise specified herein, any
reference to "days" in this Deed of Trust shall be deemed to
mean "calendar days."
v. Interpretation. As used in this Deed of Trust unless the
context clearly requires otherwise: The terms "herein" or
"hereunder" and similar terms without reference to a
particular section shall refer to the entire Deed of Trust and
not just to the section in which such terms appear; the term
"lien" shall also mean a security interest, and the term
"security interest" shall also mean a lien.
w. Effect of NRS Section 107.030. To the extent not inconsistent
herewith, the provisions of NRS Section 107.030 are included
herein by reference.
x. Amendments. This Deed of Trust cannot be waived, changed,
discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of any
waiver, change, discharge or termination is sought and only as
permitted by the provisions of the Credit Agreement.
ARTICLE 7.
POWER OF ATTORNEY
a. Grant of Power. Trustor irrevocably appoints Beneficiary and
any successor thereto as its attorney-in-fact (which
appointment Trustor hereby acknowledges is coupled with an
interest), with full power and authority, including the power
of substitution, exercisable only during the continuance of an
Event of Default to act for Trustor in its name, place and
stead as hereinafter provided:
62
i. Possession and Completion. To take possession of the
Site and the Improvements, remove all employees,
contractors and agents of Trustor therefrom, complete
or attempt to complete the work of construction, and
market, sell or lease the Site and the Improvements.
ii. Plans. To make such additions, changes and
corrections in the current Plans and Specifications as
may be necessary or desirable, in Beneficiary's
reasonable discretion, or as it deems proper to
complete the Main Project.
iii. Employment of Others. To employ such contractors,
subcontractors, suppliers, architects, inspectors,
consultants, property managers and other agents as
Beneficiary, in its discretion, deems proper for the
completion of the Main Project, for the protection or
clearance of title to the Site or Personal Property,
or for the protection of Beneficiary's interests with
respect thereto.
iv. Security Guards. To employ watchmen to protect the
Site and the Improvements from injury.
v. Compromise Claims. To pay, settle or compromise all
bills and claims then existing or thereafter arising
against Trustor, which Beneficiary, in its discretion,
deems proper for the protection or clearance of title
to the Site or Personal Property, or for the
protection of Beneficiary's interests with respect
thereto.
vi. Legal Proceedings. To prosecute and defend all
actions and proceedings in connection with the Site or
the Improvements.
63
vii. Other Acts. To execute, acknowledge and deliver all
other instruments and documents in the name of Trustor
that are necessary or desirable, to exercise Trustor's
rights under all contracts concerning the Site or the
Improvements, including, without limitation, under any
Space Leases, and to do all other acts with respect to
the Site or the Improvements that Trustor might do on
its own behalf, as Beneficiary, in its reasonable
discretion, deems proper.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
64
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust,
Assignment of Rents and Leases and Security Agreement to be effective as of
the day and year first above written.
TRUSTOR: ALADDIN GAMING, LLC,
a Nevada limited-liability company,
as Trustor
By: /s/ Ronald Dictrow
------------------------------
Ronald Dictrow,
Secretary
S-1
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 26th day of February in the year 1998 before me, the
undersigned, a Notary Public in and for said State, personally appeared Ronald
Dictrow, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that he/she executed same in his/her
capacity, and that by his/her signature on the instrument, the entity upon
behalf of which the individual acted, executed the instrument.
/s/ Dawn M. Schoenig
- ---------------------
Notary Public
My commission expires: August 3, 1999
Notarial Seal:
EXHIBIT A
Legal Description of the Site
A-1
Table of Contents
Section Page
ARTICLE 1
COVENANTS OF TRUSTOR
1.1 Performance of Loan Documents. . . . . . . . . . . . . . . . 10
1.2 General Representations, Covenants and Warranties. . . . . . 10
1.3 Compliance With Legal Requirements.. . . . . . . . . . . . . 10
1.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.5 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.5.1 Hazard Insurance Requirements and Proceeds.. . . . 11
1.5.2 Notices Regarding Insurance Policies.. . . . . . . 11
1.6 Condemnation.. . . . . . . . . . . . . . . . . . . . . . . . 11
1.7 Care of Trust Estate.. . . . . . . . . . . . . . . . . . . . 12
1.8 Leases. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.9 Further Encumbrance. . . . . . . . . . . . . . . . . . . . . 13
1.10 Actions with Respect to Permitted Liens. . . . . . . . . . . 13
1.11 Partial Releases of Trust Estate.. . . . . . . . . . . . . . 14
1.12 Further Assurances.. . . . . . . . . . . . . . . . . . . . . 15
1.13 Security Agreement and Financing Statements. . . . . . . . . 15
1.13.1 Fixture Filing. . . . . . . . . . . . . . . . . . 16
1.13.2 Remedies. . . . . . . . . . . . . . . . . . . . . 16
1.13.3 Derogation of Real Property. . . . . . . . . . . . 16
1.13.4 Priority; Permitted Financing of Tangible
Collateral. . . . . . . . . . . . . . . . . . . . 17
1.13.5 Presentation of Contractual Rights of Collateral.. 17
1.13.6 Removal of Collateral. . . . . . . . . . . . . . . 17
1.13.7 Change of Name. . . . . . . . . . . . . . . . . . 18
1.14 Assignment of Rents and Leases. . . . . . . . . . . . . . . 18
1.15 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.16 Beneficiary's Cure of Trustor's Default. . . . . . . . . . . 19
1.17 Defense of Actions.. . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 2
CORPORATE LOAN PROVISIONS
2.1 Interaction with Credit Agreement. . . . . . . . . . . . . . 20
2.1.1 Incorporation by Reference.. . . . . . . . . . . . 20
2.1.2 Conflicts . . . . . . . . . . . . . . . . . . . . 20
i
2.2 Other Collateral.. . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 3
DEFAULTS
3.1 Event of Default.. . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 4
REMEDIES
4.1 Acceleration of Maturity.. . . . . . . . . . . . . . . . . . 21
4.2 Protective Advances. . . . . . . . . . . . . . . . . . . . . 21
4.3 Institution of Equity Proceedings. . . . . . . . . . . . . . 21
4.4 Beneficiary's Power of Enforcement.. . . . . . . . . . . . . 21
4.5 Beneficiary's Right to Enter and Take Possession,
Operate and Apply Income. . . . . . . . . . . . . . . . . . 23
4.6 Leases.. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.7 Purchase by Beneficiary. . . . . . . . . . . . . . . . . . . 24
4.8 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws.. . . . . . . . . . . . . . . . . . . . . . 24
4.9 Receiver. . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.10 Suits to Protect the Trust Estate. . . . . . . . . . . . . . 25
4.11 Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . 25
4.12 Trustor to Pay the Notes on Any Default in Payment:
Application of Monies by Beneficiary. . . . . . . . . . . . 26
4.13 Delay or Omission; No Waiver.. . . . . . . . . . . . . . . . 26
4.14 No Waiver of One Default to Affect Another.. . . . . . . . . 26
4.15 Discontinuance of Proceedings; Position of Parties Restored. 27
4.16 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . 27
4.17 Interest After Event of Default. . . . . . . . . . . . . . . 28
4.18 Foreclosure; Expenses of Litigation. . . . . . . . . . . . . 28
4.19 Deficiency Judgments.. . . . . . . . . . . . . . . . . . . . 28
4.20 Waiver of Jury Trial.. . . . . . . . . . . . . . . . . . . . 29
4.21 Exculpation of Beneficiary.. . . . . . . . . . . . . . . . . 29
ARTICLE 5
ii
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
5.1 Exercise of Remedies by Trustee. . . . . . . . . . . . . . . 29
5.2 Rights and Privileges of Trustee.. . . . . . . . . . . . . . 29
5.3 Resignation or Replacement of Trustee. . . . . . . . . . . . 30
5.4 Authority of Beneficiary.. . . . . . . . . . . . . . . . . . 30
5.5 Effect of Appointment of Successor Trustee.. . . . . . . . . 30
5.6 Confirmation of Transfer and Succession. . . . . . . . . . . 30
5.7 Exculpation. . . . . . . . . . . . . . . . . . . . . . . . . 31
5.8 Endorsement and Execution of Documents.. . . . . . . . . . . 31
5.9 Multiple Trustees. . . . . . . . . . . . . . . . . . . . . . 31
5.10 Terms of Trustee's Acceptance. . . . . . . . . . . . . . . . 31
5.10.1 Delegation.. . . . . . . . . . . . . . . . . . . . 31
5.10.2 Counsel. . . . . . . . . . . . . . . . . . . . . . 31
5.10.3 Security.. . . . . . . . . . . . . . . . . . . . . 31
5.10.4 Costs and Expenses.. . . . . . . . . . . . . . . . 32
5.10.5 Release. . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Heirs, Successors and Assigns Included in Parties. . . . . . 32
6.2 Addresses for Notices, Etc.. . . . . . . . . . . . . . . . . 32
6.3 Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.4 Invalid Provisions to Affect No Others. . . . . . . . . . . 33
6.5 Changes and Priority Over Intervening Liens. . . . . . . . . 34
6.6 Estoppel Certificates. . . . . . . . . . . . . . . . . . . . 34
6.7 Waiver of Setoff and Counterclaim. . . . . . . . . . . . . . 34
6.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 34
6.9 Required Notices.. . . . . . . . . . . . . . . . . . . . . . 35
6.10 Reconveyance.. . . . . . . . . . . . . . . . . . . . . . . . 35
6.11 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . 35
6.12 Late Charges.. . . . . . . . . . . . . . . . . . . . . . . . 35
6.13 Cost of Accounting.. . . . . . . . . . . . . . . . . . . . . 35
6.14 Right of Entry. . . . . . . . . . . . . . . . . . . . . . . 36
6.15 Corrections. . . . . . . . . . . . . . . . . . . . . . . . . 36
6.16 Statute of Limitations. . . . . . . . . . . . . . . . . . . 36
6.17 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . 36
6.18 Joint and Several Liability. . . . . . . . . . . . . . . . . 36
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6.19 Homestead. . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.20 Context. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.21 Time.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.22 Interpretation. . . . . . . . . . . . . . . . . . . . . . . 37
6.23 Effect of NRS Section 107.030. . . . . . . . . . . . . . . . 37
6.24 Amendments.. . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 7
POWER OF ATTORNEY
7.1 Grant of Power. . . . . . . . . . . . . . . . . . . . . . . 37
7.1.1 Possession and Completion. . . . . . . . . . . . . 37
7.1.2 Plans. . . . . . . . . . . . . . . . . . . . . . . 37
7.1.3 Employment of Others.. . . . . . . . . . . . . . . 37
7.1.4 Security Guards. . . . . . . . . . . . . . . . . . 37
7.1.5 Compromise Claims. . . . . . . . . . . . . . . . . 38
7.1.6 Legal Proceedings. . . . . . . . . . . . . . . . . 38
7.1.7 Other Acts.. . . . . . . . . . . . . . . . . . . . 38
EXHIBIT A LEGAL DESCRIPTION OF THE SITE
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