Exhibit 4.10
Prepared By and Upon
Recordation Return To:
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 10286
Attention: Corporate Trust Administration
Phone: (000) 000-0000
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
XXXXXX COLORADO GAMING, LLC,
as Trustor
THE PUBLIC TRUSTEE OF THE COUNTY OF XXXXXX,
STATE OF COLORADO
as Trustee
THE BANK OF NEW YORK,
as Beneficiary
Dated as of December 6, 2001
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE
FILING WITH ASSIGNMENT OF RENTS (this "Deed of Trust") is made as of
the 6th day of December, 2001 by Xxxxxx Colorado Gaming, LLC, a
Colorado limited liability company ("Trustor"), whose principal
place of business is located at 000 Xxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxxx 00000, in favor of The Public Trustee of the County of
Xxxxxx, State of Colorado ("Trustee"), for the benefit of The Bank
of New York, a New York banking corporation, as Collateral Agent
("Beneficiary"), whose principal place of business is located at 000
Xxxxxxx Xxxxxx - 00X, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as
trustee under the "Indenture" for the ratable benefit of the
"Holders" (as each such term is hereinafter defined).
THE MAXIMUM AMOUNT OF PRINCIPAL TO BE SECURED HEREBY IS $152,632,000
OF EACH OF THE "SUBSIDIARY GUARANTEE OBLIGATIONS" (as hereinafter
defined); PROVIDED THAT IN NO EVENT SHALL THE AGGREGATE PRINCIPAL
BALANCE SECURED HEREBY, EXCLUSIVE OF INTEREST, FEES AND EXPENSES,
FOR THE BENEFIT OF THE HOLDERS EXCEED $152,632,000.
R E C I T A L S
X. Xxxxxxxx to that certain Indenture, dated as of
December 6, 2001 (as supplemented and otherwise amended from time to
time, the "Indenture"), by and among Majestic Investor Holdings,
LLC, a Delaware limited liability company (the "Company"), Majestic
Investor Capital Corp., a Delaware corporation ("Capital" and,
together with the Company, the "Issuers"), the Subsidiary Guarantors
(defined therein), and Beneficiary, as Trustee thereunder (in such
capacity, the "Indenture Trustee"), the Issuers will issue 11.653%
Senior Secured Notes due on or before 2007 in an aggregate principal
amount of up to $152,632,000 (collectively, the "Notes"). Unless the
context otherwise requires, all capitalized terms used and not
otherwise defined herein shall have the meanings ascribed thereto in
the Indenture. Attached hereto as Schedule 1.1 is a list of certain
definitions for which reference should be made to the Indenture.
X. Xxxxxxxx to a guarantee executed and delivered
pursuant to the Indenture (as amended from time to time, the
"Subsidiary Guarantee"), the Subsidiary Guarantors (including
Trustor) have guaranteed the obligations of the Issuers under the
Notes, the Indenture and the other Security Documents to which the
Issuers are parties.
X. Xxxxxxxx to the Indenture, the Subsidiary Guarantee
of Trustor is required to be secured by, among other things, this
Deed of Trust.
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D. The parties acknowledge that certain provisions of
this Deed of Trust may be subject to the laws, rules and regulations
("Applicable Gaming Laws") of the Gaming Authority of the State of
Colorado.
W I T N E S S E T H:
IN CONSIDERATION OF THE FOREGOING PREMISES AND FOR OTHER
GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF
WHICH ARE HEREBY ACKNOWLEDGED, SUBJECT TO APPLICABLE GAMING LAWS,
TRUSTOR DOES HEREBY IRREVOCABLY GRANT, BARGAIN, SELL, TRANSFER,
CONVEY AND ASSIGN to Trustee, its successors and assigns, IN TRUST,
WITH POWER OF SALE, for the benefit and security of Beneficiary, as
agent and representative for the equal and ratable benefit of the
Holders, but subject to Permitted Liens, the following (but
excluding in each and every case all Excluded Assets), whether now
owned or hereafter acquired:
GRANTING CLAUSE ONE
[LAND]
All of Trustor's right, title and interest in the real
property, located in the County of Xxxxxx, State of Colorado,
described in Exhibit A attached hereto and by this reference
incorporated herein (the "Land"), together with all and singular the
tenements, hereditament, rights, reversions, remainders, development
rights, privileges, benefits, easements (in gross or appurtenant),
rights-of-way, gores or strips of land, streets, ways, alleys,
passages, sewer rights, water courses, water rights and powers, and
all appurtenances whatsoever and claims or demands of Trustor at law
or in equity, in any way belonging, benefitting, relating or
appertaining to the Land, the airspace over the Land, the
"Improvements" (as hereinafter defined), or both, or which
hereinafter shall in any way belong, relate or be appurtenant
thereto;
GRANTING CLAUSE TWO
[IMPROVEMENTS]
TOGETHER WITH, any and all structures, buildings,
facilities and improvements of every nature whatsoever now or
hereafter erected on the Land, including, but not limited to, the
"Fixtures" (as hereinafter defined) (collectively, the
"Improvements") (the Land and Improvements are referred to
collectively as the "Property");
GRANTING CLAUSE THREE
[RENTS, ETC.]
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TOGETHER WITH, all rents, income, security or similar
deposits (to the full extent allowed by Applicable Laws), including,
without limitation, receipts, issues, royalties, earnings, products
or proceeds, profits, maintenance, license and concession fees and
other revenues to which Trustor may now or hereafter be entitled,
including, without limitation, all rights to payment for hotel room
occupancy by hotel guests, which includes any payment or monies
received or to be received in whole or in part, whether actual or
deemed to be, for the sale of services or products in connection
therewith and/or in connection with such occupancy, advance
registration fees by hotel guests, tour or junket proceeds and
deposits for conventions and/or party reservations (collectively,
the "Rents"), subject to the revocable license hereinafter given to
Trustor to collect and apply such Rents;
GRANTING CLAUSE FOUR
[LEASES, INCLUDING DEPOSITS AND ADVANCE RENTALS]
TOGETHER WITH, (a) all estate, right, title and interest
of Trustor in, to and under any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreement,
franchise agreements and all other agreements affecting or covering
the Property or any portion thereof now or hereafter existing or
entered into, together with all amendments, extensions and renewals
of any of the foregoing, (b) all right, title, claim, estate and
interest of Trustor thereunder, including, without limitation, all
claims of the lessor thereunder, letters of credit, guarantees or
security deposits (to the full extent allowed by Applicable Laws),
advance rentals, and any and all deposits or payments of similar
nature and (c) the right to enforce against any tenants thereunder
and otherwise any and all remedies under any of the foregoing,
including Trustor's right to evict from possession any tenant
thereunder or to retain, apply, use, draw upon, pursue, enforce or
realize upon any guaranty thereof; to terminate, modify, or amend
any such agreement; to obtain possession of, use, or occupy, any of
the real or personal property subject to any such agreement; and to
enforce or exercise, whether at law or in equity or by any other
means, all provisions of any such agreement and all obligations of
the tenants thereunder based upon (i) any breach by such tenant
thereunder (including any claim that Trustor may have by reason of a
termination, rejection, or disaffirmance of such agreement pursuant
to any Bankruptcy Law), and (ii) the use and occupancy of the
premises demised, whether or not pursuant to the applicable
agreement (including any claim for use and occupancy arising under
landlord-tenant law of the State of Colorado or any Bankruptcy Law);
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GRANTING CLAUSE FIVE
[OPTIONS TO PURCHASE, ETC.]
TOGETHER WITH, all right, title and interest of Trustor
in and to all options and other rights to purchase or lease the
Property or any portion thereof or interest therein, if any, and any
greater estate in the Property owned or hereafter acquired by
Trustor;
GRANTING CLAUSE SIX
[FIXTURES]
TOGETHER WITH, all right, title and interest of Trustor
in and to all "Fixtures." Fixtures means any and all "fixtures" as
such term is defined in Article 9 of the Applicable UCC and to the
fullest extent allowed by Applicable Laws, fixtures and all other
equipment and machinery now or at any time hereafter owned by
Trustor and located or included in or on or appurtenant to the
Property and used in connection therewith and which are or become so
related to the real property encumbered hereby that an interest
arises in them under real estate law; machinery, equipment
(including, without limitation, pipes, furnaces, conveyors, drums,
fire sprinklers and alarm systems, and air conditioning, heating,
refrigerating, electronic monitoring, stoves, ovens, ranges,
dishwashers, disposals, food storage, food processing (including
restaurant fixtures), trash and garbage removal and maintenance
equipment), elevators, office equipment, all built-in tables,
wall-beds, wall-safes, built-in furniture and installation,
doorstops, vaults, motors, dumb-waiters, computers, mirrors,
screens, chairs, chaise lounges, hot tubs, swimming pool heaters,
beauty and xxxxxx equipment, maintenance supplies used in connection
with the Land, mantels, screens, plumbing, bathtubs, sinks, basins,
faucets, all laundry, kitchen, restaurant and athletic equipment,
washers, dryers, planters, desks, sofas, shelves, lockers and
cabinets, all safes, furnishings, appliances (including, without
limitation, food warming and holding equipment, iceboxes,
refrigerators, fans, heaters, water heaters and incinerators), rugs,
carpets and other floor coverings, draperies and drapery rods and
brackets, awnings, window shades, venetian blinds, curtains, lamps,
chandeliers and other lighting fixtures, trade fixtures, telephone,
television and other communications equipment, visual and electronic
surveillance systems and transportation systems, all specifically
designed installations and furnishings, all furniture, furnishings
and personal property of every nature whatsoever, and equipment,
appliances or other goods for the exclusion of vermin or insects, or
for the collection of dust, refuse or garbage; provided, however,
that Fixtures shall not include Excluded Assets;
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GRANTING CLAUSE SEVEN
[CONDEMNATION AWARDS, ETC.)
TOGETHER WITH, all the estate, interest, right, title
and other claim or demand, which Trustor now has or may hereafter
acquire in any and all awards, payments or other consideration made
for the taking by eminent domain, or by any proceeding or purchase
in lieu thereof, of the whole or any part of the Property,
including, without limitation, any awards, payments or other
consideration resulting from a change of grade of streets and for
severance damages;
GRANTING CLAUSE EIGHT
[INSURANCE PROCEEDS]
TOGETHER WITH, all the estate, interest, right, title
and other claim or demand which Trustor now has or may hereafter
acquire with respect to the proceeds of insurance in effect with
respect to all or any part of the Property, together with all
interest thereon and the right to collect and receive the same;
GRANTING CLAUSE NINE
[CLAIMS FOR DAMAGES, ETC.]
TOGETHER WITH, all the estate, interest, right, title
and other claim or demand which Trustor now has or may hereafter
acquire against anyone with respect to any damage to all or any part
of the Property, including, without limitation, damage arising from
any defect in or with respect to the design or construction of all
or any part of the Improvements and damage resulting therefrom;
GRANTING CLAUSE TEN
[DEPOSITS, ADVANCE PAYMENTS AND REFUNDS OF INSURANCE, UTILITIES, ETC.]
TOGETHER WITH, all deposits or other security or advance
payments including rental payments made by or on behalf of Trustor
to others, and all refunds made by others to Trustor, with respect
to (i) insurance policies relating to all or any part of the
Property, (ii) utility service for all or any part of the Property,
(iii) cleaning, maintenance, repair, or similar services for all or
any part of the Property, (iv) refuse removal or sewer service for
all or any part of the Property, (v) rental of equipment, if any,
used in the operation, maintenance or repair by or on behalf of
Trustor of all or any part of the Property and (vi) parking or
similar services or rights afforded to all or any part of the
Property;
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GRANTING CLAUSE ELEVEN
[WATER RIGHTS, ETC.]
TOGETHER WITH, all water rights, water stock, water
permits and other rights to the use of water that are now or that
may be hereinafter used in connection with the said Property, or any
part thereof, or any improvements or appurtenances thereto;
GRANTING CLAUSE TWELVE
[MINERALS, ETC.]
TOGETHER WITH, all oil and gas and other mineral rights,
if any, in or pertaining to the Land and all royalty, leasehold and
other rights of Trustor pertaining thereto;
GRANTING CLAUSE THIRTEEN
[ACCESSIONS, ETC.]
TOGETHER WITH, all extensions, improvements,
betterments, renewals, substitutes for and replacements of, and all
additions, accessions, and appurtenances to, any of the foregoing
that Trustor may subsequently acquire, and all conversions of any of
the foregoing; Trustor agrees that all property hereafter acquired
by Trustor and required by the Indenture, this Deed of Trust or any
other Security Document to be subject to the Lien and/or security
interests created by this Deed of Trust shall forthwith upon the
acquisition thereof by Trustor be subject to the Lien and security
interests of this Deed of Trust as if such property were now owned
by Trustor and were specifically described in this Deed of Trust and
granted hereby or pursuant hereto, and the Beneficiary is hereby
authorized to receive any and all such property as and for
additional security for the Subsidiary Guarantee Obligations (as
hereinafter defined);
The entire estate, property and interest hereby conveyed
to Trustee pursuant to Granting Clauses One through Thirteen,
inclusive (other than Excluded Assets), may hereafter be referred to
as the "Trust Estate."
FOR THE PURPOSE OF SECURING:
A. the due and punctual payment and performance of any
and all present and future obligations and liabilities of Trustor of
every type or description to Beneficiary, arising under or in
connection with the Subsidiary Guarantee, whether for principal of,
or premium, if any, or interest on the Notes, expenses, indemnities
or other amounts (including attorneys' fees and expenses)
(collectively, the "Subsidiary Guarantee Obligations"); and
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B. the due and punctual payment and performance of any
and all present and future obligations and liabilities of Trustor of
every type or description to Beneficiary, arising under or in
connection with this Deed of Trust or any other Security Document,
including for reimbursement of amounts permitted to be advanced or
expended by Beneficiary (i) to satisfy amounts required to be paid
by Trustor under this Deed of Trust or any other Security Document,
together with interest thereon to the extent provided, or (ii) to
protect the Trust Estate, together with interest thereon to the
extent provided; and
C. all future advances pursuant to the Indenture or any
other Security Document,
in each case whether due or not due, direct or indirect, joint
and/or several, absolute or contingent, voluntary or involuntary,
liquidated or un1iquidated, determined or undetermined, now or
hereafter existing, renewed or restructured, whether or not from
time to time decreased or extinguished and later increased, created
or incurred, whether or not arising after the commencement of a
proceeding under the Bankruptcy Code (including post-petition
interest) and whether or not allowed or allowable as a claim in any
such proceeding (all obligations and liabilities described herein,
including, without limitation, the Subsidiary Guarantee Obligations,
are collectively referred to herein as the "Secured Obligations").
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
HEREBY COVENANTS AND AGREES AS FOLLOWS:
ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
SECTION 1.1. Certain Defined Terms. As used herein, the
following terms shall have the following meanings:
"APPLICABLE GAMING LAWS" has the meaning set forth in
Recital D.
"APPLICABLE LAWS" has the meaning set forth in Section
3.7.
"APPLICABLE UCC" means the Uniform Commercial Code (as
amended from time to time) of the State of Colorado.
"BENEFICIARY" has the meaning set forth in the Preamble.
"ENVIRONMENTAL CLAIM" shall mean any claim, action,
cause of action, investigation or notice (written or oral) by any
person or entity alleging
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potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages,
personal injuries, or penalties) arising out of, based on or
resulting from (a) the presence, or release into the environment, of
any Hazardous Material at any location, whether or not owned or
operated by Trustor or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"ENVIRONMENTAL DAMAGES" means all claims, judgments,
damages, losses, penalties, fines, liabilities (including strict
liability), encumbrances, liens, costs and expenses of investigation
and defense of any claim, whether or not such is ultimately
defeated, and of any settlement or judgment, of whatever kind or
nature, contingent or otherwise, matured or unmatured, foreseeable
or unforeseeable, including, without limitation, reasonable
attorneys' fees, charges and disbursements (including, without
limitation, costs of appeal), and consultants' fees, any of which
are actually incurred at any time as a result of the existence or
alleged existence of Hazardous Materials (as hereinafter defined)
upon, about or beneath the Property or migrating or threatening to
migrate to or from the Property, or the existence or alleged
existence of a violation of Environmental Laws (as hereinafter
defined) pertaining to the Property regardless of whether the
existence of such Hazardous Materials or the violation of
Environmental Laws arose prior to the present ownership or operation
of the Property, and including, without limitation:
(i) damages for personal injury, or injury
to property or natural resources occurring upon or off of the
Property, foreseeable or unforeseeable, including, without
limitation, lost profits, consequential damages, the cost of
demolition and rebuilding of any improvements on real
property, interest and penalties including, but not limited
to, claims brought by or on behalf of employees of Trustor,
with respect to which Trustor waives, for the benefit of
Beneficiary only, any immunity to which it may be entitled
under any industrial or workers' compensation laws;
(ii) reasonable fees actually incurred for
the services of attorneys, consultants, contractors, experts,
laboratories and all other costs incurred in connection with
the investigation or remediation of such Hazardous Materials
or violation of Environmental Laws including, but not limited
to, the preparation of any feasibility studies or reports or
the performance of any cleanup, remedial, removal, abatement,
containment, closure, restoration or monitoring work required
by any federal, state or local governmental agency or
political subdivision, or reasonably necessary to make full
economic use of the Property or any other property or
otherwise expended in connection with such conditions, and
including, without limitation, any reasonable attorneys' fees,
charges and disbursements (including, without limitation,
costs of appeal) actually incurred in enforcing this Deed of
Trust or collecting any sums due hereunder; and
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(iii) liability to any Person to indemnify
such Person for actual costs incurred in good faith in
connection with the items referenced in subparagraphs (i) and
(ii) hereof.
"ENVIRONMENTAL LAWS" means the common law and all
applicable present and future statutes, regulations, rules,
ordinances, codes, licenses, permits, orders, approvals, plans,
authorizations, concessions, franchises and similar items, of all a
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial and administrative
and regulatory decrees, injunctions, judgments and orders relating
to the environment, including, without limitation:
(i) all requirements, including, but not
limited to, those relating or pertaining to (A) record
keeping, reporting, disclosing, notifying, licensing,
permitting, investigation and remediation of emissions,
discharges, releases or threatened releases of Hazardous
Materials or other chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or
wastes whether solid, liquid or gaseous in nature, into the
environment (including, without limitation, ambient air,
surface water, groundwater or land surface or subsurface
strata), (B) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or
handling of chemical substances, materials or wastes, whether
solid, liquid or gaseous in nature, including without
limitation, Hazardous Materials or (C) underground storage
tanks and related piping, and emissions, discharges, releases
or threatened releases of Hazardous Materials or other
chemical substances, pollutants, contaminants or hazardous or
toxic substances, materials or wastes whether solid, liquid or
gaseous in nature therefrom; and
(ii) all other requirements pertaining to
the preservation or protection of the environment and the
mitigation of adverse effects thereon and the health and
safety of employees or the public with respect to Hazardous
Materials.
"FIXTURES" has the meaning set forth in Granting Clause
Six.
"HAZARDOUS MATERIALS" means chemicals, pollutants,
contaminants, wastes, toxic or hazardous materials, substances or
wastes, petroleum and petroleum products, asbestos or
asbestos-containing materials, polychlorinated biphenyls (PCBs),
lead or lead-based paints or materials, or radon.
"IMPOSITIONS" means any and all (i) real estate and
personal property taxes and other taxes and assessments, water and
sewer rates and charges levied or assessed upon or with respect to
the Property, and any and all other governmental charges (including
any penalties and other charges imposed by any Gaming Authority) and
any interest or costs or penalties with respect thereto, in each
case whether general, special, ordinary or extraordinary, foreseen
or unforeseen, of any kind and nature whatsoever that at any time
prior to or after the execution hereof may be
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assessed, levied, imposed, or become a lien upon the Property or the
Rents, but excluding taxes on Trustor's income or operating
revenues; (ii) charges for any easement or agreement maintained for
the benefit of the Property and (iii) other charges, expenses,
payments or assessments of any nature, if any, which are or may be
assessed, levied, imposed or become a lien upon the Property or the
Rents, including mechanics and other Liens permitted by Section 4.12
of the Indenture.
"IMPOUND ACCOUNT" means the account that Trustor may be
required to maintain pursuant to Section 4.6.2. of this Deed of
Trust for the deposit of amounts required to pay Impositions and
insurance premiums.
"IMPROVEMENTS" has the meaning set forth in Granting
Clause Two.
"INDEMNITEES" has the meaning set forth in Section
11.2.7.
"INSURANCE POLICIES" has the meaning set forth in
Section 4.4.
"INTANGIBLE PROPERTY" means any and all intangible
personal property, including, without limitation, (a) the rights to
use all names and all derivations thereof now or hereafter used by
Trustor in connection with the Land or the Improvements, including,
without limitation, the name "Fitzgeralds Black Hawk Casino/Hotel"
and any variations thereof, together with the goodwill associated
therewith, and all names, logos, and designs used by Trustor, or in
connection with the Land or the Improvements or in which Trustor has
rights, with the exclusive right to use such names, logos and
designs wherever they are now or hereafter used in connection with
the Land or the Improvements, and any and all other trade names,
trademarks or service marks, whether or not registered, now or
hereafter used in the operation of the Land or the Improvements,
including, without limitation, any interest as a licensee or
franchisee, and, in each case, together with the goodwill associated
therewith; (b) maps, plans, specifications, surveys, studies, tests,
reports, data and drawings relating to the development of the Land,
or the Improvements and the construction of the Improvements,
including, without limitation, all marketing plans, feasibility
studies, soils tests, design contracts and all contracts and
agreements of Trustor relating thereto and all architectural,
structural, mechanical and engineering plans and specifications,
studies, data and drawings prepared for or relating to the
development of the Land or the Property or the construction,
renovation or restoration of any of the Improvements or the
extraction of minerals, sand, gravel or other valuable substances
from the Land; (c) any and all books, records, customer lists
(including lists or information derived from or related to the
"player tracking system" described within the definition of
"Tangible Property"), concession agreements, supply or service
contracts, licenses, permits, governmental approvals (to the extent
such licenses, permits and approvals may be pledged under Applicable
Laws), signs, goodwill, casino and hotel credit and charge records,
supplier lists, checking accounts, safe deposit boxes (excluding the
contents of such deposit boxes owned by Persons other than Trustor
and its Subsidiaries), cash, instruments, Chattel Papers,
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documents, unearned premiums, deposits, refunds, including but not
limited to income tax refunds, prepaid expenses, rebates, tax and
insurance escrow and impound accounts, if any, actions and rights in
action, and all other claims, and all other contract rights and
general intangibles resulting from or used in connection with the
operation of the Trust Estate and in which Trustor now or hereafter
has rights; (d) all of Trustor's documents, instruments, contract
rights, and general intangibles including, without limitation, all
insurance policies, permits, licenses, franchises and agreements
required for the use, occupancy or operation of the Land or any of
the Improvements (to the extent such licenses, permits and approvals
are not prohibited from being pledged under Applicable Laws); (e)
general intangibles, vacation license resort agreements or other
time share license or right to use agreements with respect to the
Land, the Improvements and/or the business being conducted thereon,
including, without limitation, all rents, issues, profits, income
and maintenance fees resulting therefrom; whether any of the
foregoing is now owned or hereafter acquired and (f) to the extent
permitted by Applicable Laws, any and all licenses, permits,
variances, special permits, franchises, certificates, rulings,
certifications, validations, exemptions, filings, registrations,
authorizations, consents, approvals, waivers, orders, rights and
agreements (including options, option rights and contract rights)
now or hereafter obtained by Trustor from any Governmental Authority
having or claiming jurisdiction over the Land, the Tangible
Property, the Property or any other element of the Trust Estate or
providing access thereto, or the operation of any business on, at,
or from the Land, including, without limitation, any Gaming
Licenses.
"LAND" has the meaning set forth in Granting Clause One.
"LEASES" means any and all leases, subleases, lettings,
licenses, concessions, operating agreements, management agreements
and all other agreements affecting or covering the Property or any
portion thereof now or hereafter existing or entered into, together
with all amendments, extensions and renewals of any of the
foregoing.
"PERSONALTY" means the Intangible Property and the
Tangible Property.
"PROPERTY" has the meaning set forth in Granting Clause
Two.
"PUBLIC WATERS" means any river, lake, stream, sea,
ocean, gulf, bay or other public body of water.
"RECEIVER" means any trustee, receiver, custodian,
fiscal agent, liquidator or similar officer.
"RENTS" has the meaning set forth in Granting Clause
Three.
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"SUBSIDIARY GUARANTEE OBLIGATIONS" has the meaning set
forth hereinabove.
"TANGIBLE PROPERTY" means any and all tangible personal
property, including, without limitation, all goods, equipment,
supplies, building and other materials of every nature whatsoever
and all other tangible personal property constituting a part or
portion of the Property and/or used in the operation of any hotel,
casino, restaurant, store, parking facility, special events arena,
theme park, and any other commercial operations on the Property,
including but not limited to Inventory, communication systems,
visual and electronic surveillance systems and transportation
systems and not constituting a part of the real property subject to
the real property lien of this Deed of Trust and including all
property and materials stored on all or any portion of the Property
in which Trustor has an interest and all tools, utensils, food and
beverage, liquor, uniforms, linens, housekeeping and maintenance
supplies, vehicles, fuel, advertising and promotional material,
blueprints, surveys, plans and other documents relating to the Land
or the Improvements, and all construction materials and all
Fixtures, including, but not limited to, all gaming equipment and
devices which are used in connection with the operation of the
Property and those items of Fixtures which are purchased or leased
by Trustor, machinery and any other item of personal property in
which Trustor now or hereafter owns or acquires an interest or
right, and which are used or useful in the construction, operation,
use and occupancy of the Property; to the extent permitted by the
applicable contract or Applicable Laws, all financial equipment,
computer equipment, player tracking systems (including all computer
hardware, operating software programs and all right, title and
interest in and to any applicable license therefore), calculators,
adding machines, video game and slot machines, and any other
electronic equipment of every nature used or located on any part of
the Property, and all present and future right, title and interest
of Trustor in and to any casino operator's agreement, license
agreement or sublease agreement used in connection with the
Property.
"TITLE POLICY" means the title insurance policy or
policies in favor of Beneficiary insuring the Lien of this Deed of
Trust.
"TRUST ESTATE" has the meaning set forth hereinabove.
SECTION 1.2. RELATED MATTERS.
1.2.1. INTENTIONALLY DELETED.
1.2.2. CONSTRUCTION. Unless the context of this Deed of
Trust clearly requires otherwise, references to the plural include
the singular, the singular includes the plural, the part includes
the whole, and "including" is not limiting. The words "hereof,"
"herein," "hereby," "hereunder" and similar terms in this Deed of
Trust refer to this Deed of Trust as a whole (including the
Preamble, the Recitals and all
13
Schedules and Exhibits, but subject to Section 1.2.5.) and not to
any particular provision of this Deed of Trust. Article, section,
subsection, exhibit, recital, preamble and schedule references in
this Deed of Trust are to this Deed of Trust unless otherwise
specified. References in this Deed of Trust to any agreement, other
document or law "as amended" or "as may be amended from time to
time," or to amendments of any document or law, shall include any
amendments, supplements, replacements, renewals or other
modifications.
1.2.3. DETERMINATIONS. Any determination or calculation
contemplated by this Deed of Trust that is made by Beneficiary shall
be final and conclusive and binding upon the Trustor and the
Issuers, in the absence of manifest error. References in this Deed
of Trust to "determination" by Beneficiary include good faith
estimates (in the case of quantitative determinations) and good
faith beliefs (in the case of qualitative determinations). All
references herein to "discretion" of Beneficiary (or terms of
similar import) shall mean "absolute and sole discretion." All
consents and other actions of Beneficiary contemplated by this Deed
of Trust may be given, taken, withheld or not taken in Beneficiary's
discretion (whether or not so expressed), except as otherwise
expressly provided herein. No approval or consent of Beneficiary
shall be effective unless the express written approval or consent of
Beneficiary is received by Trustor.
1.2.4. GOVERNING LAW. This Deed of Trust shall be
governed by, and construed in accordance with, the laws of the State
of New York, including, without limitation, Section 5-1401 and
5-1402 of the New York General Obligations Law, except that the
provisions for the creation, perfection and enforcement of the lien
and security interest created pursuant to this Deed of Trust shall
be governed by the laws of the State of Colorado.
1.2.5. HEADINGS. The Article and Section headings used
in this Deed of Trust are for convenience of reference only and
shall not affect the construction hereof.
1.2.6. SEVERABILITY. If any provision of this Deed of
Trust or any Lien or other right hereunder shall be held to be
invalid, illegal or unenforceable under Applicable Law in any
jurisdiction, such provision, Lien or other right shall be
ineffective only to the extent of such invalidity, illegality or
unenforceability, which shall not affect any other provisions herein
or any other Lien or right granted hereby or the validity, legality
or enforceability of such provision, Lien or right in any other
jurisdiction.
1.2.7. EXHIBITS AND SCHEDULES. All of the exhibits and
schedules attached to this Deed of Trust shall be deemed
incorporated herein by reference.
14
ARTICLE 2.
[RESERVED]
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor hereby represents and warrants to Beneficiary
and Trustee that, as of the date hereof:
SECTION 3.1. CORPORATE EXISTENCE. Trustor (a) is a
limited liability company duly formed, validly existing and in good
standing under the laws of the jurisdiction in which it is
incorporated, and (b) has the limited liability company power and
authority to own its property and assets and to transact the
business in which it is engaged or presently proposes to engage, and
(c) is duly qualified and is authorized to do business and is in
good standing as a foreign limited liability company in every
jurisdiction in which it owns or leases real property or in which
the nature of its business requires it to be so qualified.
SECTION 3.2. AUTHORIZATION; APPROVALS. The execution,
delivery and performance by Trustor of this Deed of Trust are within
Trustor's limited liability company powers and authority, have been
duly authorized by all necessary limited liability company action,
and do not contravene (a) Trustor's certificate of formation,
operating agreement or limited liability company agreement or (b)
any law or any contractual restriction binding on or affecting
Trustor or the Property. All authorizations or approvals or other
actions by, or notice to or filing with, any Governmental Authority
required for the due execution, delivery and performance by Trustor
of this Deed of Trust have been duly obtained and are in full force
and effect.
SECTION 3.3. ENFORCEABILITY. This Deed of Trust has been
duly executed and delivered by Trustor and is the legal, valid and
binding obligation of Trustor, enforceable against Trustor in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally and general principles of
equity.
SECTION 3.4. VALIDITY AND PERFECTION OF SECURITY
INTERESTS. The liens and security interests in the Trust Estate
created in accordance with the terms hereof and pursuant to the
terms of the other Security Documents executed by Trustor constitute
valid security interests and upon recordation of this Deed of Trust
in the appropriate office in Xxxxxx County, Colorado, the security
interests granted to Beneficiary hereunder will constitute perfected
security interests therein superior and prior to all Liens, rights
or claims of all other Persons other than Permitted Liens.
SECTION 3.5. TITLE TO AND RIGHT TO USE ASSETS. Trustor
has good and marketable fee simple title in the Land, and is the
legal and beneficial owner of the remainder of the Trust Estate (and
as to the Trust Estate whether now existing or hereafter acquired,
Trustor will continue to own each item thereof except to the
15
extent Trustor disposes of the same pursuant to the Indenture), free
and clear of all Liens except Permitted Liens. Trustor has the right
to hold, occupy and enjoy its interest in the Trust Estate subject
to the terms of the Gaming Licenses and subject to the Permitted
Liens, and has valid right, full power and legal authority, subject
to Applicable Gaming Laws, to mortgage and pledge the same as
provided herein, and Trustor shall defend the Trust Estate against
all claims and demands of all Persons at any time claiming the same
or any interest therein adverse to Xxxxxxxxxxx (except for Permitted
Liens) and Beneficiary may, subject to Applicable Gaming Laws, at
all times peaceably and quietly enter upon, hold, occupy and enjoy
the entire Trust Estate in accordance with the terms hereof.
SECTION 3.6. NON-CONTRAVENTION. Neither the execution,
delivery or performance of this Deed of Trust by the Trustor nor the
consummation of the transactions herein contemplated nor the
fulfillment of the terms hereof (i) violate the terms of or
constitute a default under any agreement, indenture, mortgage, deed
of trust, equipment lease, instrument or other document to which the
Trustor is a party or by which it or any of its property or assets
is bound or to which it may be subject, (ii) conflict with any law,
order, rule or regulation applicable to the Trustor of any court or
any Governmental Authority, or (iii) result in or require the
creation or imposition of (or the obligation to create or impose)
any Lien (other than Permitted Liens and the Lien contemplated
hereby or by any other Security Document), upon or with respect to
any of the property or assets now owned or hereafter acquired by
Trustor.
SECTION 3.7. CONTRACTS. Each contract the absence of
which would prevent Trustor from operating the Trust Estate in a
manner substantially similar to the manner in which the Trust Estate
is operated as of the date hereof (each, a "Contract"), (i) is the
genuine, legal, valid, and binding obligation of Trustor, (ii) is
enforceable against Trustor in accordance with its terms, (iii) is
in full force and effect and is, to Trustor's best knowledge, not
subject to any setoffs, defenses, overdue taxes, counterclaims or
other claims, nor have any of the foregoing been asserted or alleged
as to any Contract, and (iv) is, in all material respects, in
compliance with all applicable laws, whether federal, state, local
or foreign, including, without limitation, Applicable Gaming Laws
("Applicable Laws"). Neither Trustor nor, to the best knowledge of
Trustor, any other party to any Contract is in material default in
the performance or observance of any of the terms thereof. No party
to any Contract is the United States government or an
instrumentality thereof.
SECTION 3.8. OCCUPANCY AGREEMENTS. Trustor has delivered
to Beneficiary true, correct and complete copies of all leases,
subleases, occupancy agreements and other agreements granting
possessory rights in the Property or any portion thereof, including
all amendments thereof and modifications thereto (each, an
"Occupancy Agreement"). Each Occupancy Agreement (i) is the genuine,
legal, valid and binding obligation of Trustor, (ii) is enforceable
against Trustor and, to the best knowledge of Trustor, the other
party thereto, in accordance with its terms, (iii)
16
to the best knowledge of Trustor is in full force and effect and is
not subject to any setoffs, defenses, taxes, counterclaims or other
claims, nor have any of the foregoing been asserted or alleged as to
any Occupancy Agreement, and (iv) to the best knowledge of Trustor
is in compliance with all Applicable Laws in all material respects.
SECTION 3.9. NO OTHER PROPERTY, The Trust Estate,
together with the other property upon which a Security Interest is
being granted to Beneficiary pursuant to the terms of the Security
Documents, constitutes all of the property (whether owned, leased or
otherwise) currently used by Trustor in connection with the
operation of the Fitzgeralds Black Hawk Casino/Hotel located on the
Land, other than the Excluded Assets and the property upon which the
granting of the security interest or lien is not allowed by
Applicable Laws.
SECTION 3.10. COMPLIANCE WITH LAWS. To the best
knowledge of Trustor, except as otherwise disclosed in writing to
Beneficiary, the Trust Estate and the proposed and actual use
thereof comply in all material respects with all Applicable Laws,
and there is no proceeding pending or, to the best knowledge of
Trustor, threatened before any court, quasi-judicial body,
Governmental Authority relating to the validity of the Security
Documents or the proposed or actual use of the Trust Estate.
SECTION 3.11. PROPERTY USE; MECHANICS' LIENS. The
Property is not used principally or primarily for agricultural or
grazing purposes. All costs for labor and material for the removal,
construction and renovation of the Improvements (including, without
limitation, any additions and alterations thereto) have been paid in
full or will be paid in accordance with Section 4.15.
SECTION 3.12. CONDEMNATION. There are no pending or, to
the best knowledge of Trustor, threatened condemnation or eminent
domain proceedings against the Trust Estate or any part thereof.
SECTION 3.13. LITIGATION. Except as disclosed in writing
to Beneficiary prior to the date hereof, there are no pending or, to
the best knowledge of Trustor, threatened, actions, claims,
proceedings, investigations, suits or proceedings before any court,
Governmental Authority or arbitrator against Trustor, the Trust
Estate or any part thereof.
SECTION 3.14. CONSTRUCTION OF IMPROVEMENTS. All
Improvements have been and will be constructed in all material
respects in accordance with Applicable Laws and all requirements of
Governmental Authorities and governmental approvals. Except as
disclosed in writing to Beneficiary prior to the date hereof, to the
best knowledge of Trustor, the Improvements (a) are free from latent
and patent defects that would have a material adverse effect on the
value of the Improvements
17
or materially and adversely affect Trustor's use or operation of the
Improvements or Property, and (b) do not require any material
repairs, reconstruction or replacement on the date hereof.
ARTICLE 4.
AFFIRMATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary
as follows:
SECTION 4.1. SECURED OBLIGATIONS OF TRUSTOR. Trustor
will perform, observe and comply with its Secured Obligations
arising under this Deed of Trust and shall continue to be liable for
the performance of its Secured Obligations arising under this Deed
of Trust until discharged in full, notwithstanding any actions of
partial foreclosure that may be brought hereunder to recover any
amount or amounts expended by Beneficiary on behalf of Trustor in
order to cure any of Trustor's defaults or to satisfy any of
Trustor's obligations or covenants under any agreement relating to
the Trust Estate and to which Trustor is a party or by which the
Trust Estate is bound.
SECTION 4.2. COMPLIANCE WITH LAW; MAINTENANCE OF
APPROVALS. Except as expressly permitted by the Indenture, Trustor
shall (i) comply in all material respects with all requirements of
law applicable to the ownership, operation, use and occupancy of all
or any portion of the Trust Estate, whether or not such compliance
requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, or structural or
nonstructural, and (ii) maintain in full force and effect all
authorizations, approvals or other actions, including, without
limitation, Gaming Licenses and liquor licenses and permits, which
are necessary for the performance of Trustor's obligations pursuant
to this Deed of Trust or for the business conducted by Trustor on
the Property.
SECTION 4.3. OTHER REPORTS. Trustor shall provide from
time to time such additional information regarding Trustor or the
Trust Estate as are required under the Indenture or as Beneficiary
may reasonably request.
SECTION 4.4. INSURANCE. Trustor, at its sole cost and
expense, will provide, maintain and keep in force the insurance
required by Section 4.16 of the Indenture ("Insurance Policies").
SECTION 4.5. WASTE AND REPAIR. Except as expressly
permitted by Section 4.15 of the Indenture, Trustor shall at all
times cause the Trust Estate to be maintained in normal working
order and condition (reasonable wear and tear excepted). Trustor
shall not suffer any waste of the Property or do or permit to be
done thereon anything not otherwise permitted in the Indenture that
may in any way impair the security of this Deed of Trust. Trustor
shall not abandon the Property nor
18
leave the Property unprotected or deserted.
SECTION 4.6. IMPOSITIONS; IMPOUNDS; TAXES; CAPITAL
COSTS.
4.6.1. IMPOSITIONS AFFECTING THE PROPERTY. Trustor shall
pay when due all Impositions (or currently payable installments
thereof) that are or that may become a lien on the Property or are
assessed against the Property or the Rents; provided, however, that
Trustor may, at its sole cost and expense, contest the amount or
validity or application of any such Impositions by appropriate legal
proceedings promptly initiated and conducted in good faith and with
due diligence; provided that (i) neither the Property nor any part
thereof will be in danger of being sold, forfeited, terminated,
canceled, or lost as a result of such contest, and (ii) except in
the case of a Lien junior to the Lien of this Deed of Trust, Trustor
shall have posted such bond or furnished such other security as may
be reasonably required by Beneficiary or as required by Applicable
Laws to release such Lien.
4.6.2. IMPOUNDS; IMPOUND ACCOUNT. Upon the occurrence
and during the continuance of an Event of Default and at the request
of Beneficiary, Trustor will pay to Beneficiary monthly an amount
equal to one-twelfth (1/12th) of the annual cost (or such greater
amount as may be reasonably necessary for Beneficiary to have on
hand sufficient funds to pay the next installment prior to
delinquency) of Impositions on the Property (but only those
Impositions defined in clause (i) of the definition of
"Impositions"), together with an amount equal to the premium for
hazard and other required insurance in order to accumulate with
Beneficiary sufficient funds to pay such Impositions and premiums at
least 30 days prior to their respective due dates. Such funds shall
be held by Beneficiary on a commingled basis and shall not bear
interest. Said accumulated funds shall be paid and applied by
Beneficiary with respect to such Impositions and insurance premiums
as and when due. Notwithstanding the foregoing, if Trustor is paying
Impositions and premiums for hazard and other required insurance to
Foothill Capital Corporation ("Foothill") pursuant to the terms of
that certain Deed of Trust, Security Agreement, and Fixture Filing
with Financing Statement and Assignment of Rents, dated as of the
date hereof (the "Foothill Deed of Trust"), made by Trustor, to
Trustee, for the benefit of Foothill, then Trustor's requirements
under this Section 4.6.2 shall be satisfied. If Beneficiary is
entitled to request Trustor to comply with the terms of this Section
4.6.2 and such payments are not being required by or made to
Foothill for any reason, Trustor shall promptly comply with the
terms of this Section 4.6.2.
SECTION 4.7. FURTHER ASSURANCES. Trustor shall, at its
own expense, perform such acts as may be necessary, or that
Beneficiary may request at any time, to execute, acknowledge and
deliver all such additional papers and instruments (including,
without limitation, a declaration of no setoff) and all such further
assurances of title and will do or cause to be done all further acts
and things as may be proper or reasonably necessary to carry out the
purpose hereof and to subject to the
19
Liens hereof any property intended by the terms hereof to be covered
thereby and any renewals, additions, substitutions, replacements or
betterments thereto.
SECTION 4.8. REIMBURSEMENT: WAIVER OF OFFSETS.
4.8.1. In the event any tax, stamp tax, assessment,
water rate, sewer rate, insurance premium, repair, rent charge,
debt, claim, inspection, Imposition or lien having priority over the
Lien of this Deed of Trust, or in the event any other amount
required to be paid by Trustor hereunder shall remain unpaid and
Trustor is not contesting such amount pursuant to the terms hereof
or the Indenture, Beneficiary shall have the right to pay such
amount and shall have the right to declare immediately due and
payable any such amount so paid. Any amount so paid by Beneficiary
shall bear interest at the default interest rate specified in
Section 4.1 of the Indenture ("Default Rate") from the date of
payment by Beneficiary, shall constitute an additional Secured
Obligation secured hereby, prior to any right, title or interest in
or claim upon the Trust Estate attaching or accruing subsequent to
the Lien of this Deed of Trust, shall be secured by this Deed of
Trust and shall be payable by Trustor to Beneficiary within thirty
(30) days after receipt by Trustor of written demand.
4.8.2. Except as otherwise provided herein, in the
Indenture or in the other Security Documents, all sums payable by
Trustor hereunder or under the other Security Documents shall be
paid without notice, demand, counterclaim, setoff, deduction or
defense and without abatement, suspension, deferment, diminution or
reduction, and the obligations and liabilities of Trustor hereunder
shall in no way be released, discharged or otherwise affected by
reason of: (i) any damage to or destruction of or any condemnation
or similar taking of the Trust Estate or any part thereof; (ii) any
restriction or prevention of or interference with any use of the
Trust Estate or any part thereof; (iii) any title defect or
encumbrance or any eviction from the Property or the Improvements or
any part thereof by title paramount or otherwise; (iv) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to
Beneficiary, or any action taken with respect to this Deed of Trust
by any trustee or receiver of Beneficiary, or by any court, in any
such proceeding; (v) any claim which Trustor has or might have
against Beneficiary; (vi) any default or failure on the part of
Beneficiary to perform or comply with any of the terms hereof or of
any other agreement with Trustor or (vii) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing; whether
or not Trustor shall have notice or knowledge of any of the
foregoing. Trustor waives all rights now or hereafter conferred by
statute or otherwise to any abatement, suspension, deferment,
diminution or reduction of any sum secured hereby and payable by
Trustor.
SECTION 4.9. LITIGATION. Trustor will, promptly upon
obtaining actual knowledge thereof, give notice in writing to
Beneficiary of any litigation commenced that is likely to have a
material adverse effect on the Property or the Liens created
20
hereby other than unlawful detainer proceedings brought by Trustor
in connection with the Leases.
SECTION 4.10. CERTAIN REPORTS. Trustor will, promptly
and in any event within fifteen days after actual receipt by Trustor
thereof, deliver to Beneficiary a copy of any written notice or
citation concerning any actual, alleged or suspected violation of
any Environmental Law or liability of Trustor for Environmental
Damages in connection with the Property or past or present
activities of any Person thereon.
SECTION 4.11. TAX RECEIPTS. Subject to the provisions of
Section 4.6 hereof, Trustor shall provide to Beneficiary, within 30
days after demand made therefor, bills (which shall be receipted
from and after the date receipted bills are obtainable) showing the
payment to the extent then due of all taxes, assessments (including
those payable in periodic installments), water rates, sewer rates,
and/or any other Imposition that have become a lien (other than an
inchoate lien) upon the Trust Estate.
SECTION 4.12. FIRPTA AFFIDAVIT. Trustor hereby
represents and warrants to Beneficiary under penalty of perjury
that:
(i) Trustor's U.S. Taxpayer Identification Number is
00-0000000;
(ii) Trustor's business address is set forth in the
preamble hereto; and
(iii) Trustor is not a "foreign person" within the
meaning of Sections 1445 and 7701 of the Code (i.e., Trustor is not
a nonresident alien, foreign corporation, foreign partnership,
foreign trust or foreign estate as those terms are defined in the
Code and regulations promulgated thereunder). Trustor agrees to
indemnify, defend, protect and hold Beneficiary and Beneficiary's
agents harmless of, from and against any and all loss, liability,
costs, damages, claims or causes of action including reasonable
attorneys' fees, costs and expenses which may be actually incurred
by Beneficiary or Beneficiary's agents by reason of any failure of
any representation or warranty made by Trustor in this Section 4.12
to be true and correct in all respects, including, but not limited
to, any liability for failure to withhold any amount required under
Code Section 1445 in the event of foreclosure or other transfer of
the Property.
SECTION 4.13. PRESERVATION OF CONTRACTUAL RIGHTS. Except
as otherwise expressly permitted by the Indenture or as would not
have a Material Adverse Effect, Trustor shall, prior to delinquency,
default or forfeiture, perform all material obligations and satisfy
all material conditions required on its part to be satisfied to
preserve its rights and privileges under any contract, lease,
license, permit
21
or other authorization (a) under which it holds any Tangible
Property, or (b) which constitutes part of the Intangible Property.
SECTION 4.14. TAX SERVICE CONTRACT. At any time after
the occurrence of an Event of Default (whether or not such Event of
Default is cured), at the request of Beneficiary and at Trustor's
and/or its permitted successor's sole cost and expense, Beneficiary
shall be furnished a tax service contract in form satisfactory to
Beneficiary issued by a tax reporting agency satisfactory to
Beneficiary, which contract shall remain in force until indefeasible
discharge in full of the Secured Obligations.
SECTION 4.15. LIENS. Trustor shall pay and promptly
discharge, at Trustor's sole cost and expense, all Liens upon the
Trust Estate, or any part thereof or interest therein other than the
Permitted Liens. Trustor shall have the right to contest in good
faith the validity of any such Lien, provided Trustor shall first
post such bond or furnish such other security as may be reasonably
required by Beneficiary or as required by Applicable Law to release
such Lien, and provided further that Trustor shall thereafter
diligently proceed to cause such Lien to be removed and discharged.
If Trustor shall fail to so diligently proceed or to discharge any
such Lien, then upon the occurrence and continuance of an Event of
Default (unless the Property is in danger of being sold, forfeited,
terminated, canceled, or lost as a result of such contest, in which
case, Beneficiary may act in the absence of an Event of Default),
then, in addition to any other right or remedy of Beneficiary,
Beneficiary may, but shall not be obligated to, discharge the same,
either by paying the amount claimed to be due, or by procuring the
discharge of such Lien by depositing in court a bond for the amount
claimed or otherwise giving security for such Lien, or in such
manner as is or may be prescribed by law. Any amount so paid by
Beneficiary shall bear interest at the Default Rate from the date of
payment by Beneficiary, shall constitute an additional Secured
Obligation secured hereby, prior to any right, title or interest in
or claim upon the Trust Estate attaching or accruing subsequent to
the Lien of this Deed of Trust, shall be secured by this Deed of
Trust and shall be payable by Trustor to Beneficiary upon demand.
SECTION 4.16. INSPECTION. Trustor shall permit
Beneficiary, upon 24 hours' prior notice, to enter upon and inspect,
during normal business hours, the Property and the construction and
operation thereof, for such purposes reasonably deemed necessary by
Beneficiary; provided, however, that no such prior notice shall be
necessary and such inspection may occur at any time if (i)
Beneficiary reasonably believes that an emergency exists or is
imminent or (ii) the giving or delivery of such notice is prohibited
or stayed by Applicable Laws.
22
ARTICLE 5.
[RESERVED]
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary
as follows:
SECTION 6.1. RESTRICTIVE USES. Trustor covenants not to
suffer any Liens against the Trust Estate (other than Permitted
Liens).
SECTION 6.2. TRANSFERABILITY. Trustor shall not make any
Asset Sale unless the proceeds of such Asset Sale are applied as
required by Section 4.10 of the Indenture. Except as set forth in
the Indenture, Trustor shall not sell, assign, pledge, encumber,
convey, hypothecate or otherwise transfer any direct or indirect
interest in Trustor (or permit any of the foregoing), either
voluntarily or involuntarily, by operation of law or otherwise.
SECTION 6.3. NO COOPERATIVE OR CONDOMINIUM. Trustor
shall not operate or permit the Property to be operated as a
cooperative or condominium building or buildings in which the
tenants or occupants participate in the ownership, control or
management of the Property or any part thereof, as tenant
stockholders or otherwise.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
SECTION 7.1. CASUALTIES.
7.1.1. Trustor will notify Beneficiary in writing
promptly after loss or damage caused by fire, wind or other casualty
to the Property (a) that is in excess of $20,000, or (b) that would
individually, or in the aggregate, have a material adverse effect on
the value of the Improvements or Property or materially and
adversely affect Trustor's use or operation of the Improvements or
Property ("Casualty").
7.1.2. Any and all Net Proceeds from Insurance Policies
shall be treated in accordance with Section 4.10 of the Indenture
and shall be released to Trustor or applied to the discharge of the
Secured Obligations as set forth in the Indenture.
7.1.3. If Trustor elects to apply Net Proceeds of
insurance to restoration, Trustor agrees promptly and without delay
(a) to enter into, and deliver to Beneficiary a certified copy of,
one or more architect and building contracts providing for the
restoration and reconstruction of the Property to as good or better
condition as existed prior to the Casualty and (b) to begin to
restore and reconstruct the
23
Property and, thereafter, to proceed diligently therewith in
accordance with plans, specifications, architectural standards and
design reasonably determined by Trustor.
7.1.4. Notwithstanding anything to the contrary
contained herein, in the event of any uninsured Casualty, Trustor
shall promptly within a reasonable time, at its sole cost and
expense, restore and reconstruct the Property to as good or better
condition as existed prior to the Casualty. Trustor shall have the
sole right to settle any and all losses and claims unless an Event
of Default then exists.
SECTION 7.2. CONDEMNATION. Trustor, immediately upon
obtaining knowledge of the institution of any proceedings for the
condemnation of the entire Property or any material portion thereof,
will notify Trustee and Beneficiary of the pendency of such
proceedings. Trustee and Beneficiary may participate in any such
proceedings and Trustor from time to time will deliver to
Beneficiary all instruments requested by Beneficiary to permit such
participation; provided, however, that Trustor shall have the sole
right to participate in and settle any and all such proceedings
unless an Event of Default then exists. In any such condemnation
proceedings Beneficiary may be represented by counsel selected by
Beneficiary at the sole cost and expense of Trustor. Trustor shall
cause the Net Proceeds of any award or compensation or payment in
lieu or settlement thereof, to be applied as set forth in Section
4.10 of the Indenture.
ARTICLE 8.
REMEDIES OF BENEFICIARY
SECTION 8.1. EVENT OF DEFAULT. Subject to any applicable
cure period provided for in the Indenture or in this Deed of Trust,
any of the following shall be deemed to be an "Event of Default"
hereunder if not cured within such applicable cure period:
8.1.1. The occurrence of one or more "Events of Default"
(as defined in Section 6.1 of the Indenture) shall constitute an
Event of Default under this Deed of Trust (including, without
limitation, by reason of any cross-default provision in Section 6.1
of the Indenture).
8.1.2. Failure of Trustor to perform any of the terms,
covenants and conditions in this Deed of Trust; provided, however,
it shall not be an Event of Default hereunder if such failure is
curable, Trustor commences to cure such failure within thirty (30)
days of notice from Beneficiary, and Trustor diligently prosecutes
such cure to completion within sixty (60) days after notice of such
failure, but in no event beyond the maturity date of the Notes; and
provided that, with respect to the environmental covenants contained
in Section 11.2 hereof, no Event of Default shall be deemed to have
occurred unless any such covenant is breached in any material
respect.
24
8.1.3. Any statement, representation or warranty given by
Trustor to Trustee or Beneficiary in any of the Security Documents, in
connection with the Indenture or in any other document provided by Trustor,
including this Deed of Trust, is found to be materially false or misleading and
such statement, representation or warranty continues to be materially false or
misleading within sixty (60) days after notice from Beneficiary of such
statement, representation or warranty was made, but in no event beyond the
maturity date of the Notes.
8.1.4. Any transfer of the Property or any portion thereof in
violation of Section 6.2 hereof.
SECTION 8.2. REMEDIES. At any time after and during the
continuance of an Event of Default, subject to any restrictions contained in any
Intercreditor Agreement and subject to compliance with Applicable Gaming Laws,
Beneficiary may:
8.2.1. In person, by agent, or by a receiver, and without
regard to the adequacy of security, the solvency of Trustor or any other matter,
(i) enter upon and take possession of the Property, or any part thereof, in its
own name or in the name of Trustee, (ii) inspect the Property for the purpose of
determining the existence, location, nature and magnitude of any past or present
release of Hazardous Materials into, onto, beneath or from the Property, (iii)
negotiate with Governmental Authorities with respect to compliance with
Environmental Laws and remedial measures, (iv) take any action necessary to
ensure compliance with Environmental Laws, including, but not limited to,
spending Rents in connection with any cleanup, remediation or other response
action with respect to Hazardous Materials or (v) sue for or otherwise collect
the Rents, issues and profits thereof and apply the same, less costs and
expenses of operation and collection, including reasonable attorneys' fees
actually incurred, to the Secured Obligations, all in such order as Beneficiary
may determine. The entering upon and taking possession of said Property, the
collection of such Rents, issues and profits and the application thereof as
aforesaid shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice, or deprive Beneficiary of the
benefits of any indemnity set forth herein;
8.2.2. Commence an action to foreclose this Deed of Trust in
the manner provided by Applicable Laws for the foreclosure of mortgages or deeds
of trust of real property;
8.2.3. Seek a judgment that Trustor has breached its
covenants, representations and/or warranties set forth in this Deed of Trust, or
any other Security Document regarding Environmental Laws and/or Hazardous
Materials, by commencing, maintaining and concluding, and enforcing a judgment
arising from, an action for breach of contract, without regard to whether
Beneficiary has commenced an action to foreclose this Deed of Trust, and to seek
injunctive or other appropriate equitable relief and/or the recovery of any and
all Environmental Damages, it being conclusively presumed between Trustor and
Beneficiary that any reasonable costs advanced or expenses actually incurred
25
by Beneficiary relating to the cleanup, remediation or other response action
with respect to the Property were made or incurred by Beneficiary in good faith;
8.2.4. Intentionally Deleted;
8.2.5. If the Secured Obligations become or are declared
immediately due and payable pursuant to Section 6.2 of the Indenture and Trustor
fails to make such payment as and when due, then Beneficiary may waive its Liens
against any parcel of the Property or all or any portion of the Fixtures or
Personalty attached to the Property, to the extent such property is determined
to be environmentally impaired, and to exercise any and all rights of an
unsecured creditor against Trustor and all of Trustor's assets for the recovery
of any deficiency, including, but not limited to, seeking an attachment order.
TRUSTOR ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY,
EXPRESS OR IMPLIED, IN THIS DEED OF TRUST OR IN ANY OF THE OTHER SECURITY
DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY NONRECOURSE OR EXCULPATORY
LANGUAGE, IF ANY), TRUSTOR SHALL BE PERSONALLY LIABLE FOR ANY RECOVERY DESCRIBED
IN THIS PARAGRAPH 8.2.5. AND SUCH LIABILITY SHALL NOT BE LIMITED TO THE AMOUNT
OF THE NOTES;
8.2.6. With respect to any Personalty, proceed as to both the
real and personal property in accordance with Beneficiary's rights and remedies
in respect of the Property, or proceed to sell said Personalty separately and
without regard to the Property in accordance with Beneficiary's rights and
remedies; and/or
8.2.7. Pursue any and all other remedies it may have, at law
or in equity, or under any other document or instrument, except as otherwise
provided in the Indenture.
SECTION 8.3. POWER OF SALE. If Trustor shall be in default as
provided in Section 8.1 hereof, then, in that event, the entire Subsidiary
Guarantee Obligations, together with all interest accrued thereon, shall, at the
option of Beneficiary, be and become at once due and payable without notice to
Trustor, and Trustee shall, at the request of Beneficiary, but subject to
Applicable Gaming Laws, invoke the power of sale and any other remedies
permitted by Applicable Law. If Beneficiary directs Trustee to invoke the power
of sale, Beneficiary shall give written notice to Trustee of the occurrence of
an Event of Default and of Beneficiary's election to cause the Trust Estate to
be sold. Trustee shall record a copy of such notice in the county in which the
Trust Estate is located. Trustee shall publish a notice of sale for the time and
in the manner provided by Applicable Law and shall mail copies of such notice of
sale in the manner prescribed by Applicable Law to Trustor and to the other
persons prescribed by Applicable Law. After the lapse of such time as may be
required by Applicable Law, Trustee, without demand on Trustor, shall sell the
Trust Estate at public auction to the highest bidder for cash at the time and
place and under the terms designated in the notice of sale in one or more
parcels and in such order as Trustee may determine. Trustee may postpone the
sale of all or any
26
parcel of the Trust Estate by public announcement at the time and place of any
previously scheduled sale. Trustee shall deliver to the purchaser Trustee's
certificate describing the Trust Estate and the time when the purchaser will be
entitled to Trustee's deed thereto. The recitals in Trustee's deed shall be
prima facie evidence of the truth of the statements made therein. Any Person,
including, without limitation, Trustor or Beneficiary, may purchase at such sale
and Trustor hereby covenants to warrant and defend the title of such purchaser
or purchasers against the claims of all Persons claiming by, through or under
Trustor. If allowed by Applicable Law, Beneficiary, if it is the purchaser, may
apply the amount of the Secured Obligations then due and payable toward payment
of the purchase price. Trustor hereby waives its right to require that the Trust
Estate be sold as separate tracts or units in the event of foreclosure. Trustee,
upon such sale and after expiration of the applicable redemption periods, to the
extent permitted by Applicable Laws, shall make (without any covenant or
warranty, express or implied), execute and, after due payment made, deliver to
purchaser or purchasers, or his or their heirs or assigns, a deed or deeds, or
other record or records of interest, as the case may be, in and to the Trust
Estate so sold that shall convey to the purchaser all the title and interest of
Trustor in the Trust Estate (or the portion thereof sold), but without any
warranty, express or implied, and after deducting all costs, fees and expenses
of Trustee and of this Deed of Trust, including costs of evidence of title in
connection with such sale, shall apply the proceeds of sale to payment of (a)
all sums expended under the terms hereof, not then repaid, with accrued interest
at the Default Rate and (b) all other sums then secured hereby and the
remainder, if any, to the Person or Persons legally entitled thereto.
SECTION 8.4. INTENTIONALLY DELETED.
SECTION 8.5. PROTECTION OF SECURITY. If an Event of Default
shall have occurred and be continuing, then upon at least 15 days prior written
notice to Trustor and without releasing Trustor from any obligations or defaults
hereunder, Beneficiary or Trustee shall have the right, but not the obligation,
to: (i) make payment or otherwise perform such obligations of Trustor upon which
such Event of Default is based in such manner and to such extent as either may
reasonably deem necessary to protect the security hereof, Beneficiary and
Trustee being authorized to enter upon the Property for such purpose; (ii)
appear in and defend any action or proceeding purporting to affect, in any
manner whatsoever, the Secured Obligations, the security hereof or the rights or
powers of Beneficiary or Trustee; (iii) pay, purchase or compromise any
encumbrance, charge or lien (other than Permitted Liens); (iv) advance any and
all costs and expenses reasonably necessary to cure or pay Environmental Damages
or otherwise to comply with Environmental Laws; and (v) in exercising any such
powers, pay necessary expenses, employ counsel and pay attorneys' fees. Trustor
xxxxxx agrees to repay within thirty (30) days after receipt of written demand
all reasonable sums actually expended by Trustee or Beneficiary pursuant to this
Section 8.5. with interest at the Default Rate from the date of expenditure by
Xxxxxxxxxxx, and such sums, with interest, shall be secured hereby.
SECTION 8.6. RECEIVER. If an Event of Default shall have
occurred and be continuing, Beneficiary, as a matter of strict right and without
regard to the then value of
27
the Property, shall have the right to apply, ex parte or otherwise, to any court
having jurisdiction to appoint a Receiver or Receivers of the Property, subject
to Applicable Gaming Laws. Any such Receiver or Receivers shall have all the
powers and duties of receivers under Applicable Laws in like or similar cases
and all the powers and duties of Beneficiary in case of entry as provided in
this Deed of Trust, and shall continue as such and exercise all such powers
until the date of confirmation of sale, unless such receivership is sooner
terminated.
SECTION 8.7. CURING OF DEFAULTS.
8.7.1. If Trustor shall at any time fail to perform or comply
with any of the terms, covenants and conditions required on Trustor's part to be
performed and complied with under this Deed of Trust or any other Security
Document relating to the Trust Estate (after the lapse of any cure period
provided therein), then Beneficiary shall have the right, but not the
obligation, upon the occurrence and during the continuance of an Event of
Default, without waiving or releasing any of the Secured Obligations, to:
8.7.1.1. make any payments thereunder payable by
Trustor and take out, pay for and maintain any of the insurance policies
provided for therein, and/or
8.7.1.2. after the expiration of any applicable grace
period and subject to Trustor's rights to contest certain obligations
specifically granted hereby, perform any such other acts thereunder on the part
of Trustor to be performed and enter upon the Property and incur reasonable
attorneys' fees and expenses for such purpose.
8.7.2. The making by Beneficiary of such payment out of
Beneficiary's own funds shall not, however, be deemed to cure such default by
Trustor, and the same shall not be so cured unless and until Trustor shall have
reimbursed Beneficiary within the applicable cure period for such payment
including interest at the Default Rate from the date of such expenditure. All
sums so paid and all reasonable costs and expenses actually incurred and paid by
Beneficiary in connection with the performance of any such act, together with
interest on unpaid balances thereof at the Default Rate from the respective
dates of Beneficiary's making of each such payment, shall be secured by the lien
of this Deed of Trust, prior to any right, title or interest in or claim upon
the Property attaching or accruing subsequent to the lien of this Deed of Trust,
and shall be payable by Trustor to Beneficiary within thirty (30) days after
receipt of written demand.
SECTION 8.8. REMEDIES CUMULATIVE. All remedies of Beneficiary
provided for herein are cumulative and shall be in addition to any and all other
rights and remedies provided in the other Security Documents or provided by
Applicable Law, including any banker's lien and right of offset. The exercise of
any right or remedy by Beneficiary hereunder shall not in any way constitute a
cure or waiver of default hereunder or under the
28
Security Documents, or invalidate any act done pursuant to any notice of
default, or prejudice Beneficiary in the exercise of any of its rights hereunder
or under the Security Documents unless, in the exercise of said rights, all
Secured Obligations are fully discharged.
ARTICLE 9
FIXTURE FILING
SECTION 9.9. FIXTURE FILING.
9.9.1. This Deed of Trust shall be effective as a Financing
Statement filed as a fixture filing from the date of the recording hereof in
accordance with the Uniform Commercial Code. In connection therewith, the
addresses of Trustor as debtor ("Debtor") and Beneficiary as secured party
("Secured Party") are set forth on Schedule 13.9. The address of Beneficiary, as
the Secured Party, is also the address from which information concerning the
security interest may be obtained by any interested party.
9.9.1.1. The property subject to this fixture filing
is described in Granting Clause Six.
9.9.1.2. Portions of the property subject to this
fixture filing as identified in Section 9.1.1.1. above are or are to become
fixtures related to the real estate described on Exhibit A to this Deed of
Trust.
9.9.1.3.
Secured Party is: The Bank of New York, as Collateral
Agent.
9.9.1.4.
Debtor is: Xxxxxx Colorado Gaming, LLC, a Colorado
limited liability company
9.9.1.5.
The record owner or lessee of the Property is: Xxxxxx
Colorado Gaming, LLC, a Colorado limited liability company
9.9.2. In the event Trustor shall fail, beyond any applicable
notice and grace periods, to make any payment or perform any covenant related to
any security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within 15 days after notice to Trustor or if Beneficiary's
immediate action is reasonably necessary to protect the lien hereof or its
security for the Secured Obligations, at any time without prior notice to
Trustor, pay the amount secured by such security interest, and the amount so
paid shall be (i) secured by this Deed of Trust and shall be a lien on the
Property enjoying the same priorities vis-a-vis the estates and interests
encumbered hereby as this Deed of Trust, (ii) added to the amount of the Secured
Obligations, and (iii) payable within 30 days after receipt of written demand
with interest at the Default Rate
29
from the time of such payment; or, upon and during the continuance of an Event
of Default, Beneficiary shall have the privilege of acquiring by assignment from
the holder of such security interest any and all contract rights, accounts
receivable, chattel paper, negotiable or non-negotiable instruments and other
evidence of Trustor's indebtedness secured by such fixtures, and, upon acquiring
such interest by assignment, shall have the right to enforce the security
interest as assignee thereof, in accordance with the terms and provisions of
Applicable Laws.
ARTICLE 10
ASSIGNMENT OF RENTS
SECTION 10.10. Assignment of Rents. Subject to Section 10.2.
and to Applicable Gaming Laws, Trustor hereby absolutely and unconditionally
assigns and transfers to Beneficiary all of the Rents, whether now due, past due
or to become due, and hereby gives to and confers upon Beneficiary the right,
power and authority to collect such Rents and apply the same to the Secured
Obligations secured hereby. Trustor irrevocably appoints Beneficiary its true
and lawful attorney, at the option of Beneficiary at any time while an Event of
Default exists, to demand, receive and enforce payment, to give receipts,
releases and satisfactions, and to sue, either in the name of Trustor or in the
name of Beneficiary, for all such Rents and apply the same to the Secured
Obligations secured hereby. It is understood and agreed that neither the
foregoing assignment of Rents to Beneficiary nor the exercise by Beneficiary or
any of its rights or remedies under this Deed of Trust shall be deemed to make
Beneficiary a "mortgagee-in-possession" or otherwise responsible or liable in
any manner with respect to the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof, unless and until Beneficiary, in person
or by its own agent, assumes actual possession thereof, nor shall appointment of
a Receiver for the Property by any court at the request of Beneficiary or by
agreement with Trustor or the entering into possession of the Property or any
part thereof by such Receiver be deemed to make Beneficiary a
"mortgagee-in-possession" or otherwise responsible or liable in any manner with
respect to the Property or the use, occupancy, enjoyment or operation of all or
any portion thereof.
SECTION 10.11. Collection of Rents. Notwithstanding anything
to the contrary contained herein, so long as no Event of Default shall occur and
be continuing, Trustor shall have a license, revocable upon the occurrence and
during the continuance of an Event of Default, to collect all Rents from the
Property and to retain, use and enjoy the same and to otherwise exercise all
rights with respect thereto, subject to the terms hereof. Upon the occurrence
and during the continuance of an Event of Default, the license hereinabove
granted to Trustor shall, without the requirement of the giving of notice or
taking of any action by any party, be revoked, and Beneficiary shall have the
complete right and authority to exercise and enforce any and all of its rights
and remedies provided herein or by Applicable Laws.
30
ARTICLE 11.
ENVIRONMENTAL MATTERS
SECTION 11.12. Representations and Warranties. Except as
specifically disclosed in Schedule 11.1, Trustor represents and warrants as of
the date hereof as follows:
11.12.1. Trustor (i) has obtained all material permits,
licenses and other authorizations that are required with respect to the
operation of its business, property and assets under the Environmental Laws and
is in substantial compliance with all terms and conditions thereof, and (ii) is
in substantial compliance with all Environmental Laws (including, without
limitation, compliance with standards, schedules and timetables therein);
11.12.2. No portion of the Trust Estate is listed or proposed
for listing on the National Priorities List or the Comprehensive Environmental
Response, Compensation, and Liability Information System, both promulgated under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), or on any other state or local list established
pursuant to any Environmental Law, and Trustor has not received any notification
of potential or actual liability or request for information under CERCLA or any
comparable state or local law;
11.12.3. To the knowledge of the Company, no underground
storage tank or other underground storage receptacle, or related piping, is
located on the Property;
11.12.4. To the knowledge of the Company, there have been no
releases (i.e., any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping, on-site or, to the knowledge of the Trustor after due
inquiry, off-site) of Hazardous Materials at, on, under, from or into the
Property;
11.12.5. There is no written, or to the knowledge of the
Company, oral Environmental Claim pending or, to the knowledge of the Company,
threatened against any of them, and to the knowledge of the Company, neither
Trustor nor any person or entity whose liability Trustor has retained or assumed
either contractually or by operation of law has any liability, absolute or
contingent, under any Environmental Law; and
11.12.6. To the knowledge of the Company, there are no events,
activities, practices, incidents or actions or conditions, circumstances or
plans that may interfere with or prevent compliance by Trustor with any
Environmental Law, or that may give rise to any Environmental Claim or liability
under any Environmental Laws.
11.12.7. Trustor has not received any communication (written
or, to the knowledge of the Company, oral), whether from a governmental
authority, citizens group,
31
employee or otherwise, that alleges that Trustor or the Property is not in
substantial compliance with any Environmental Law, and there are no known
circumstances that may prevent or interfere with such substantial compliance in
the future.
11.12.8. Trustor has provided or made available to the Issuers
all assessments, reports, data, results of investigations or audits, and other
information that is in the possession of or reasonably available to Trustor
regarding environmental matters pertaining to, or the environmental condition
of, the Land and the business of Trustor, or the compliance (or noncompliance)
of the Land and Trustor with any Environmental Laws.
11.12.9. Trustor is not required by virtue of the transactions
set forth herein and contemplated hereby, or as a condition to the effectiveness
of any transactions contemplated hereby, (i) to perform a site assessment for
Hazardous Materials, (ii) to remove or remediate Hazardous Materials, (iii) to
give notice to or receive approval from any Governmental Authority under
Environmental Laws, or (iv) to record or deliver to any person or entity any
disclosure document or statement pertaining to environmental matters.
11.12.10. The above representations and warranties contained
in this Section 11.1 shall survive the termination, release and/or reconveyance
of this Deed of Trust and the discharge of Trustor's other obligations
hereunder.
SECTION 11.13. Environmental Covenants. Trustor shall at all
times comply with the following requirements; provided, however, that in
connection with the non-compliance with any of the provisions contained in
Sections 11.2.1 through 11.2.4, inclusive, no breach shall be deemed to have
occurred if Trustor complies with the requirements of Section 11.2.5 with
respect thereto:
11.13.1. Trustor shall not cause or permit any Hazardous
Material to be brought upon, treated, kept, stored, disposed of, discharged,
released, produced, manufactured, generated, refined or used upon, within or
beneath the Property or any portion thereof by Trustor, its agents, employees,
contractors, or invitees, or any other Person, except in compliance with all
Environmental Laws and only in the course of such Person's legitimate business
operations at the Property (which shall not include any business for treatment,
storage, disposal, discharge, release, production, manufacture, generation,
refinement or use of Hazardous Materials).
11.13.2. Trustor shall not cause or permit the existence or
the commission by Trustor, its agents, employees, contractors or invitees, or by
any other Person of a violation of any Environmental Laws upon, within or
beneath the Property or any portion thereof.
32
11.13.3. Trustor shall not dispose of, discharge or release or
cause or permit the disposal, discharge or release of any Hazardous Materials
from the Property into any Public Waters in violation of any Environmental Laws.
11.13.4. Trustor shall not create or suffer to exist with
respect to the Property or permit any of its agents to create or suffer to exist
any environmental lien, security interest or other charge or encumbrance of any
kind (other than a Permitted Lien) arising under any Environmental Law.
11.13.5. Trustor shall, at its sole cost and expense, promptly
take any and all actions required by any federal, state or local governmental
agency or political subdivision (as hereinafter provided) to mitigate
Environmental Damages, which requirements or necessity arise from the presence
upon, about or beneath the Property, of Hazardous Materials or a violation of
Environmental Law or the disposal, discharge or release of Hazardous Materials
from the Property ("Environmental Action"). Such actions shall include, but not
be limited to, the investigation of the environmental condition of the Property,
the preparation of any feasibility studies, reports or remedial plans, and the
performance of any cleanup, remediation, containment, operation, maintenance,
monitoring or restoration work, whether on or off of the Property. Trustor shall
take all actions as are reasonably necessary under Environmental Laws to allow
unrestricted activities and operations on the Property. Trustor shall proceed
diligently with such investigatory and remedial actions, and in all cases such
actions shall be in accordance with Applicable Laws. Any such actions shall be
performed in a good, safe and workmanlike manner and shall minimize any impact
on the business conducted at the Property. Trustor shall pay all Environmental
Damages in connection with such investigatory and remedial activities,
including, but not limited to, all power and utility costs, and any and all
taxes or fees that may be applicable to such activities. Trustor shall promptly
provide to Beneficiary copies of testing results and reports that are generated
in connection with the above activities. Promptly upon completion of such
investigation and remediation, Trustor shall permanently seal or cap all
monitoring xxxxx and test holes to industrial standards in compliance with
Applicable Laws and regulations, remove all associated equipment, and restore
the Property to the extent reasonably possible, which shall include, without
limitation, the repair of any surface damage, including paving, caused by such
investigation or remediation hereunder. Upon reasonable notice and at reasonable
times (except in cases of emergency or imminent threat of harm to human health
or the environment), the Indemnitees (as defined in Section 11.2.7 of this Deed
of Trust) shall have the right but not the obligation to enter upon the Property
to assess any and all aspects of the environmental condition of the Property and
its use, including conducting environmental assessments, audit and sampling
(including, but not limited to soil and groundwater sampling if Trustor has a
reasonable belief that such soil or groundwater may be contaminated) not more
than once a year, except where Trustor has a reasonable belief that a release of
Hazardous Materials or a violation of Environmental Laws has occurred or is
likely to occur, all at the expense of Trustor. Trustor and Trustee shall
cooperate in choosing Consultants to conduct such work and Trustor shall provide
access to the Indemnities and their agents, representatives, consultants and
employees
33
(together, the "Indemnitees" for purposes of this Section 11.2.5) in connection
with such investigations. In the event that Trustor fails to fulfill its
obligations under this Deed of Trust relating to environmental matters,
including this Section 11.2.5, following the expiration of 30 days written
notice by Beneficiary of its intent to invoke its rights under this section,
unless Beneficiary has a reasonable belief that a more immediate response is
required under Environmental Laws, Beneficiary shall have the right to undertake
any action necessary or prudent under Environmental Laws, and shall have the
right to pursue any and all legal theories and remedies provided by law or
contract to enforce the covenants in this Section 11.2 and the other provisions
of this Article 11. Nothing in this Deed of Trust shall be deemed to create, or
construed as creating, any liability of the Indemnitees under Environmental Laws
for environmental conditions relating to the Property.
11.13.6. If Trustor shall become aware of or receive notice or
other communication concerning any actual, alleged, suspected or threatened
violation of any Environmental Law, or Environmental Claim or liability of
Trustor for Environmental Damages in connection with the Property or past or
present activities of any Person thereon, including, but not limited to, notice
or other communication concerning any actual or threatened investigation,
inquiry, lawsuit, claim, citation, directive, summons, proceedings, complaint,
notice, order, writ or injunction, relating to same, then Trustor shall deliver
to Beneficiary, within seven (7) days of the receipt of such notice or
communication by Trustor, a written description of said violation, liability, or
actual or threatened event or condition, together with copies of any documents
evidencing same. Receipt of such notice shall not be deemed to create any
obligation on the part of Beneficiary to defend or otherwise respond to any such
notification.
11.13.7. Trustor agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless Beneficiary, its successors and assigns, the
Holders, and their respective directors, officers, shareholders, employees,
agents, contractors, subcontractors, experts, licensees, affiliates, lessees,
trustees, and invitees (collectively, the "Indemnitees") from and against any
and all Environmental Claims and Environmental Damages arising in any manner
whatsoever out of Environmental Laws pertaining to the Trustor's operations and
activities and the Land and the activities thereon, whether foreseeable or
unforeseeable, and regardless of when such Environmental Claims arose and
Environmental Damages occurred, except to the extent directly caused by the
gross negligence or willful misconduct of Indemnitees. The indemnity obligations
of Trustor contained in this Section 11.2.7. shall survive the termination,
release and/or reconveyance of this Deed of Trust and the discharge of Trustor's
other obligations hereunder.
ARTICLE 12.
RELEASE
34
SECTION 12.14. RELEASE. In the event that Trustor is released
and discharged from all of the Secured Obligations pursuant to Section 10.14 of
the Indenture, Beneficiary hereby agrees to reconvey, without warranty, the lien
of this Deed of Trust.
ARTICLE 13
MISCELLANEOUS
SECTION 13.15. BENEFICIARY'S EXPENSES, INCLUDING ATTORNEY'S
FEES. Regardless of the occurrence of a Default or Event of Default, Trustor
agrees to pay to Beneficiary any and all advances, charges, costs and expenses,
including, without limitation, the reasonable fees and expenses of counsel and
any experts or agents, that Beneficiary may reasonably incur in connection with
(i) the administration of this Deed of Trust, including any amendment thereto or
any workout or restructuring, (ii) the creation, perfection or continuation of
the Lien of this Deed of Trust or protection of its priority or the Trust
Estate, including the discharging of any prior or junior Lien or adverse claim
against the Trust Estate or any part thereof that is not permitted hereby or by
the Indenture, (iii) the custody, preservation or sale of, collection from, or
other realization upon, any of the Trust Estate, (iv) the exercise or
enforcement of any of the rights, powers or remedies of Beneficiary under this
Deed of Trust or under Applicable Laws (including attorneys' fees and expenses
incurred by Beneficiary in connection with the operation, maintenance or
foreclosure of the Lien of this Deed of Trust) or any bankruptcy proceeding or
(v) the failure by Trustor to perform or observe any of the provisions hereof.
All such amounts and all other amounts payable hereunder shall be payable on
demand, together with interest at the Default Rate.
SECTION 13.16. INDEMNITY. Trustor hereby agrees to indemnify
and hold harmless the Indemnitees against (i) any and all transfer taxes,
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Deed of Trust and the other
Security Documents, and (ii) any and all claims, actions, liabilities, costs and
expenses of any kind or nature whatsoever (including reasonable fees and
disbursements of counsel) that may be imposed on, incurred by, or asserted
against any of them, in any way relating to or arising out of this Deed of Trust
or any action taken or omitted by them hereunder, except to the extent that they
resulted from the gross negligence or willful misconduct of any such Indemnitee.
SECTION 13.17. WAIVERS; MODIFICATIONS IN WRITING. No amendment
of any provision of this Deed of Trust (including a waiver thereof or consent
relating thereto) shall be effective unless the same shall be in writing and
signed by Beneficiary and Trustor. Any waiver or consent relating to any
provision of this Deed of Trust shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on Trustor
in any case shall entitle Trustor to any other or further notice or demand in
similar circumstances, except as otherwise provided herein or as required by
law.
35
SECTION 13.18. CUMULATIVE REMEDIES; FAILURE OR DELAY. The
rights and remedies provided for under this Deed of Trust are cumulative and are
not exclusive of any rights and remedies that may be available to Beneficiary
under Applicable Laws, the other Security Documents or otherwise. No failure or
delay on the part of Beneficiary in the exercise of any power, right or remedy
under this Deed of Trust shall impair such power, right or remedy or shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude other or further exercise of such or any
other power, right or remedy.
SECTION 13.19. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and, subject to the next sentence, inure to the benefit of Trustor
and Beneficiary and their respective successors and assigns. Except as expressly
permitted under the Indenture, Trustor shall not assign or transfer any of its
rights or obligations hereunder without the prior written consent of
Beneficiary. The benefits of this Deed of Trust shall pass automatically with
any assignment of the Secured Obligations (or any portion thereof), to the
extent of such assignment.
SECTION 13.20. INDEPENDENCE OF COVENANTS. All covenants under
this Deed of Trust shall each be given independent effect so that, if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by another covenant or by an exception thereto shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
SECTION 13.21. CHANGE OF LAW. In the event of the passage,
after the date of this Deed of Trust, of any law changing in any way the laws
now in force for the taxation of mortgages, deeds of trust, or debts secured by
mortgages or deeds of trust (other than laws imposing taxes on income), or the
manner of the collection of any such taxes, so as to affect adversely the rights
of Beneficiary under this Deed of Trust, then an Event of Default shall be
deemed to have occurred under Section 6.1 of the Indenture; provided, however,
that no Event of Default shall be deemed to have occurred (i) if Trustor, within
thirty (30) days after the passage of such law, shall assume the payment of any
tax or other charge so imposed upon Beneficiary for the period remaining until
discharge in full of the Secured Obligations; provided, however, that such
assumption is permitted by Applicable Laws, (ii) if the adverse effect upon
Beneficiary of such tax or other charge is not material, or (iii) if and so long
as Trustor, at its expense, shall contest the amount or validity or application
of any such tax or other charge by appropriate legal proceedings promptly
initiated and conducted in good faith and with due diligence; provided that (A)
neither the Property nor any part thereof the absence of which would have a
material adverse effect on the value of the Property or would have a material
and adverse effect on Trustor's operation or use of the Property will be in
danger of being sold, forfeited, terminated, canceled, or lost as a result of
such contest and (B) Trustor shall have posted such bond or furnished such other
security as may be required by law to release such tax or charge.
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SECTION 13.22. NO WAIVER. No waiver by Beneficiary of any
Default or breach by Trustor hereunder shall be implied from any omission by
Beneficiary to take action on account of such Default if such Default persists
or is repeated, no express waiver shall affect any Default other than the
Default in the waiver, and such waiver shall be operative only for the time and
to the extent therein stated. Waivers of any covenant, term or condition
contained herein shall not be construed as a waiver of any subsequent breach of
the same covenant, term or condition. The consent or approval by Beneficiary to
or of any act by Trustor requiring further consent or approval shall not be
deemed to waive or render unnecessary the consent or approval to or of any
subsequent similar act.
SECTION 13.23. NOTICES. All notices and other communications
under this Deed of Trust shall be in writing and shall be personally delivered
or sent by prepaid courier, by overnight, registered or certified mail (postage
prepaid) or by prepaid telex, facsimile or telegram, and shall be deemed given
when received by the intended recipient thereof. Unless otherwise specified in a
notice given in accordance with the foregoing provisions of this Section 13.9,
notices and other communications shall be given to the parties hereto at their
respective addresses (or to their respective telex or facsimile numbers)
indicated in Section 11.2 of the Indenture or, in the case of the Trustee,
Schedule 13.9 hereto.
SECTION 13.24. REFERENCES TO FORECLOSURE. References hereto to
"foreclosure"' and related phrases shall be deemed references to the appropriate
procedure in connection with Trustee's private power of sale, any judicial
foreclosure proceeding, and any deed given in lieu of any such Trustee's sale or
judicial foreclosure.
SECTION 13.25. JOINDER OF FORECLOSURE. Should Beneficiary hold
any other or additional security for the payment and performance of any Secured
Obligation, its sale or foreclosure, upon any default in such payment or
performance, in the sole discretion of Beneficiary, may be prior to, subsequent
to, or joined or otherwise contemporaneous with any sale or foreclosure
hereunder. Except as otherwise provided in the Indenture, in addition to the
rights herein specifically conferred, Beneficiary, at any time and from time to
time, may exercise any right or remedy now or hereafter given by Applicable Laws
to beneficiaries under deeds of trust generally, or to the holders of any
obligations of the kind hereby secured.
SECTION 13.26. RIGHTS AND OBLIGATIONS OF BENEFICIARY AND
TRUSTEE. At any time or from time to time, without liability therefor and
without notice, and without releasing or otherwise affecting the liability of
any Person for payment of any Secured Obligations, Beneficiary at its sole
discretion and only in writing may subordinate the Liens or either of them, or
charge hereof to the extent not prohibited by the Indenture. Beneficiary and
Trustee shall, however, promptly upon Trustor's request from time to time, join
in the following actions (including the execution and delivery of documents) as
Trustor determines are reasonably necessary for the development, use and
operation of the Trust Estate: (i) the making of any map or plat of the
Property, (ii) the granting, creating, amending and modifying of any customary
easements, covenants, conditions
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and restrictions with respect to the Property and (iii) the application for and
prosecution of any development, building, use and similar permits and land use
and utility approvals and installations regarding the Property; provided,
however, that Beneficiary and Trustee shall not be required to join in or take
any such action (a) while an Event of Default exists, (b) to the extent such
action would impair the Liens of this Deed of Trust or the first priority
thereof or (c) to the extent prohibited by the Indenture. Any such request shall
be accompanied by an Officers' Certificate (as defined in the Indenture). Upon
written request of Xxxxxxxxxxx and surrender of this Deed of Trust to Trustee
for cancellation, and upon payment to Trustee of its reasonable fees and
expenses actually incurred, Trustee shall cancel and reconvey this Deed of
Trust.
SECTION 13.27. COPIES. Trustor will promptly give to
Beneficiary copies of all notices of violations relating to the Property that
Trustor receives from any Governmental Authority.
SECTION 13.28. SUBORDINATION. At the option of Beneficiary,
this Deed of Trust shall become subject and subordinate in whole or in part (but
not with respect to priority of entitlement to any insurance proceeds, damages,
awards, or compensation resulting from damage to the Property or condemnation or
exercise of power of eminent domain), to any and all easements, contracts of
sale and/or any and all leases of all or any part of the Property upon the
execution by Beneficiary and recording thereof in the official records of Xxxxxx
County, Colorado of a unilateral declaration to that effect. Beneficiary may
require the issuance of such title insurance endorsements to the Title Policy in
connection with any such subordination as Beneficiary, in its judgment, shall
determine are appropriate, and Trustor shall be obligated to pay any cost or
expense incurred in connection with the issuance thereof.
SECTION 13.29. SECURITY INSTRUMENTS. Trustor covenants and
agrees that if Beneficiary at any time holds additional security for any Secured
Obligations secured hereby, it may enforce the terms thereof or otherwise
realize upon the same, at its option, either before or concurrently herewith or
after a sale is made hereunder, and may apply the proceeds upon the Secured
Obligations without affecting the status or of waiving any right to exhaust all
or any other security, including the security hereunder, and without waiving any
breach or Default or any right or power whether exercised hereunder or contained
herein or in any such other security.
SECTION 13.30. SUITS TO PROTECT PROPERTY. Trustor covenants
and agrees to appear in and defend any action or proceeding the consequence of
which, if successful, would be that the Liens, or either of them, of this Deed
of Trust would not satisfy the requirements as to extent, perfection or priority
set forth in the Indenture; and to pay all reasonable costs and expenses
actually incurred by Trustee and Beneficiary, including cost of evidence of
title and attorneys' fees in a reasonable sum, in any such action or proceeding
in which Beneficiary and/or Trustee may appear or be made a party.
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SECTION 13.31. TRUSTOR WAIVER OF RIGHTS. Trustor waives the
benefit of all laws now existing or that hereafter may be enacted providing for
(i) any appraisement before sale of any portion of the Trust Estate, and (ii)
the benefit of all laws that may be hereafter enacted in any way extending the
time for the enforcement of the Secured Obligations or creating or extending a
period of redemption from any sale made in collecting said debt. To the full
extent Trustor may do so, Trustor agrees that Trustor will not at any time
insist upon, plead, claim or take the benefit or advantage of any law now or
hereafter in force providing for any appraisement, valuation, stay, extension or
redemption, and Trustor, for Trustor, Trustor's heirs, devisees,
representatives, successors and assigns, and for any and all Persons ever
claiming any interest in the Trust Estate, to the extent permitted by Applicable
Laws, hereby waives and releases all rights of redemption, valuation,
appraisement, stay of execution, and marshaling in the event of foreclosure of
the liens hereby created. If any law referred to in this Section 13.17. and now
in force, of which Trustor, Trustor's heirs, devisees, representatives,
successors and assigns or other Person might take advantage despite this Section
13.17, shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to preclude the application of this Section 13.17. To the
extent permitted by Applicable Laws, Trustor expressly waives and relinquishes
any and all rights and remedies which Trustor may have or be able to assert by
reason of the laws of the State of Colorado pertaining to the rights and
remedies of sureties.
SECTION 13.32. CHARGES FOR STATEMENTS. Trustor agrees to pay
Beneficiary's customary charge, to the maximum amount permitted by Applicable
Laws, for any statement regarding the Secured Obligations requested by Trustor
or in its behalf.
SECTION 13.33. COMPLETE AGREEMENT. This Deed of Trust,
together with the exhibits and schedules hereto, and the other Security
Documents, is intended by the parties as a final expression of their agreement
regarding the subject matter hereof and is intended as a complete and exclusive
statement of the terms and conditions of such agreement.
SECTION 13.34. PAYMENTS SET ASIDE. Notwithstanding anything to
the contrary herein contained, this Deed of Trust, the Secured Obligations and
the Lien and Security Interest of this Deed of Trust shall continue to be
effective or be reinstated, as the case may be, if at any time any payment, or
any part thereof, of any or all of the Secured Obligations is rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required to
be restored or returned by Beneficiary in connection with any bankruptcy,
reorganization or similar proceeding involving Trustor, any other party liable
with respect to the Secured Obligations or otherwise, if the proceeds of the
Trust Estate are required to be returned by Beneficiary under any such
circumstances, or if Beneficiary reasonably elects to return any such payment or
proceeds or any part thereof in its discretion, all as though such payment had
not been made or such proceeds not been received. Without limiting the
generality of the foregoing, if prior to any such rescission, invalidation,
declaration, restoration or return, this Deed of Trust shall have been
terminated, released and/or reconveyed and the Lien and Security Interest or any
of the
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Trust Estate shall have been released or terminated in connection with such
termination, release and/or reconveyance, this Deed of Trust and the Lien and
Security Interest and such portion of the Trust Estate shall be reinstated in
full force and effect, and such prior termination, release and/or reconveyance
shall not diminish, discharge or otherwise affect the obligations of Trustor in
respect of the amount of the affected payment or application of proceeds, the
Lien, the Security Interest or such portion of the Trust Estate.
SECTION 13.35. SUBSTITUTION. Beneficiary may at any time,
without giving notice to Trustor or the original or successor Trustee, and
without regard to the willingness or inability of any original or successor
Trustee to execute this trust, appoint another Person or succession of Persons
to act as Trustee, and such appointee in the execution of this trust shall have
all the powers vested in and obligations imposed upon Trustee. Should
Beneficiary be a corporation or unincorporated association, then any officer
thereof may make such appointment.
SECTION 13.36. CHOICE OF FORUM. All actions or proceedings
arising in connection with this Deed of Trust shall be tried and litigated in
state or Federal courts located in Xxxxxx County, State of Colorado, unless such
actions or proceedings are required to be brought in another court to obtain
subject matter jurisdiction over the matter in controversy. TRUSTOR WAIVES ANY
RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, TO ASSERT THAT
IT IS NOT SUBJECT TO THE JURISDICTION OF SUCH COURTS OR TO OBJECT TO VENUE TO
THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 13.22.
SERVICE OF PROCESS, SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST
TRUSTOR, MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
TO ITS ADDRESS INDICATED IN SECTION 13.9 HEREOF.
SECTION 13.37. REGULATORY MATTERS. Whenever in this Deed of
Trust a right is given to Beneficiary, which right is affected by Applicable
Gaming Laws or Liquor Laws or the enforcement of which is subject to Applicable
Gaming Laws or Liquor Laws, the enforcement of any such right shall be subject
to Applicable Gaming Laws and Liquor Laws and approval, if so required, of the
applicable Gaming Authorities or authorities enforcing the Liquor Laws.
SECTION 13.38. GUARANTOR WAIVERS. If and to the extent that
Trustor (for the purposes of this Section 13.24, "Guarantor") would be deemed or
construed to be a guarantor or surety under Applicable Law with respect to its
obligations hereunder, Guarantor hereby agrees as follows:
13.38.1. Guarantor expressly agrees that until each and every
term, covenant and condition of this Deed of Trust is fully performed, Guarantor
shall not be released by any act or event which, except for this provision of
this Deed of Trust might
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be deemed a legal or equitable discharge or exoneration of a surety, or because
of any waiver, extension, modification, forbearance or delay or other act or
omission of Beneficiary or its failure to proceed promptly or otherwise as
against any Issuer or any other Guarantor, as the case may be (individually and
collectively, in its or their capacity as the entity or entities the obligations
of which are guaranteed hereunder by Guarantor, the "Principal") or Guarantor,
or because of any action taken or omitted or circumstance which might vary the
risk or affect the rights or remedies of Guarantor as against the Principal, or
because of any further dealings between the Principal and Beneficiary, whether
relating to this Deed of Trust or otherwise. Guarantor hereby expressly waives
and surrenders any defense to Guarantor's liability under this Deed of Trust
based upon any of the foregoing acts, omissions, things, agreements, waivers or
any of them. It is the purpose and intent of this Deed of Trust that the
obligations of Guarantor under it shall be absolute and unconditional under any
and all circumstances, subject to and in accordance with the terms and
conditions of this Deed of Trust.
13.38.2. Without in any way limiting the provisions of Section
13.24.1, Guarantor waives:
13.38.2.1. all statutes of limitations as a defense
to any action or proceeding brought against Guarantor by Beneficiary, to the
fullest extent permitted by Applicable Laws;
13.38.2.2. any right it may have to require
Beneficiary to proceed against the Principal or pursue any other remedy in
Beneficiary's power to pursue, it being acknowledged and agreed that the
obligations of Guarantor hereunder are independent of the obligations of the
Principal hereunder, and Beneficiary shall not be required to make any demand
upon, exercise any right to declare a default by, or proceed against, the
Principal prior to proceeding against Guarantor to the full extent of
Guarantor's obligations hereunder;
13.38.2.3. any defense based on any legal disability
of the Principal and any discharge, release or limitation of the liability of
the Principal to Beneficiary, whether consensual or arising by operation of law
or any bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause, or any claim that Guarantor's obligations
exceed or are more burdensome than those of the Principal;
13.38.2.4. except as specifically provided herein or
in the Indenture or any Security Document, all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of acceptance of this Deed of Trust and of the existence,
creation, or incurring of new or additional indebtedness, and demands and
notices of every kind;
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13.38.2.5. any defense based on or arising out of any
defense that the Principal may have to the payment or performance of any
obligation set forth in this Deed of Trust (other than payment or performance in
full); and
13.38.2.6. until all obligations under this Deed of
Trust have been paid and performed in full, all rights of subrogation and all
rights to enforce any remedy that Guarantor may have against the Principal, all
regardless of whether Guarantor may have made any payments to Beneficiary.
13.38.3. Guarantor assumes full responsibility for keeping
informed of the financial condition and business operations of the Principal and
all other circumstances affecting the Principal's ability to pay for and perform
its obligations, and agrees that Beneficiary shall have no duty to disclose to
Guarantor any information which Beneficiary may receive about the Principal's
financial condition, business operations, or any other circumstances bearing on
its ability to perform.
13.38.4. Notwithstanding anything to the contrary provided
elsewhere herein, in no event shall Guarantor have any liability under this Deed
of Trust beyond its interest in the portion of the Property that is owned by
Guarantor, and in no event shall Guarantor's obligations hereunder be enforced
against any property of Guarantor other than its interest in such portion of the
Property.
SECTION 13.39. WAIVER OF TRIAL BY JURY. TRUSTOR AND
BENEFICIARY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS DEED OF
TRUST OR ANY OTHER SECURITY DOCUMENT OR ANY OTHER ACTION ARISING OUT OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY INITIATES
SUCH ACTION OR ACTIONS.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to
be executed as of the day and year first above written.
XXXXXX COLORADO GAMING, LLC,
a Colorado limited liability company
By: /s/ Xxx X. Xxxxxx
---------------------------------------
Name: Xxx X. Xxxxxx
-------------------------------------
Title: Manager
------------------------------------
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ACKNOWLEDGMENT
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
The foregoing instrument was acknowledged before me this 6th day of
December, 2001 by Xxx X. Xxxxxx, as individual.
Witness my hand and official seal.
Xxxxx X . Xxxxxx
---------------------------
Notary Public
My commission expires:
[SEAL]
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