Exhibit 10.92
LEASEHOLD DEED OF TRUST
THIS LEASEHOLD DEED OF TRUST (this "Deed of Trust") made as of the 21st day of
July, 2004, by S&W OF LAS VEGAS, L.L.C., a Delaware limited liability company,
having an address at c/o The Xxxxx & Wollensky Restaurant Group, Inc., 0000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Grantor") to FIRST AMERICAN TITLE
COMPANY OF NEVADA, INC., as trustee, having an address at 0000 Xxxxx-XxXxxx, #0,
Xxx Xxxxx, Xxxxxx 00000 (the "Trustee"), for the benefit of XXXXXX XXXXXXX XXXX
XXXXXX COMMERCIAL FINANCIAL SERVICES, INC., a Delaware corporation, having an
address at 0000 Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx X.X., Xxxxxxxx, Xxx Xxxx 00000
(the "Beneficiary").
W I T N E S S E T H:
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WHEREAS, the Grantor is the owner of a leasehold estate in the premises
described in Exhibit A attached hereto (the "Premises") under and pursuant to
the provisions of the lease described in Exhibit A-1 attached hereto (the
"Subject Lease");
WHEREAS, the Grantor is a party to a certain Line of Credit Agreement
of even date herewith among the Grantor, The Xxxxx & Wollensky Restaurant Group,
Inc., Xxxxx & Wollensky of Boston LLC, and the Beneficiary (such agreement and
any and all amendments, modifications, extensions, renewals or replacements
thereto, is referred to herein as the "Loan Agreement"; all capitalized terms
used herein which are not defined herein shall have the meanings given to them
in the Loan Agreement);
WHEREAS, subject to the terms and conditions of the Loan Agreement, the
Beneficiary has agreed to extend a commercial line of credit under which the
Beneficiary will make advances to the Grantor (the "Advances"), which is
evidenced by a Promissory Note of even date herewith in the principal amount of
up to Two Million and 00/100 Dollars ($2,000,000.00) [as the same may be amended
or restated from time to time, the "Note"]; and
WHEREAS, it is a condition to the obligation of the Beneficiary to make
the Advances that the Grantor execute and deliver this Deed of Trust.
NOW THEREFORE, TO SECURE PAYMENT AND PERFORMANCE OF THE FOLLOWING
OBLIGATIONS (collectively, the "Obligations"):
(i) Prompt payment and performance of all obligations of the
Grantor under, with respect to and arising in connection with the Loan
Agreement, the Note, this Deed of Trust and the other Loan Documents (as herein
defined), including without limitation, all obligations to the Beneficiary for
fees, costs and expenses, including attorneys' fees, as provided herein or
therein;
(ii) Payment of all sums advanced by the Beneficiary or the
Trustee to protect the Trust Property (as defined herein), with interest thereon
at the Default Rate (as defined herein);
(iii) All renewals, extensions, amendments, restatements and
changes of, or substitutions or replacements for, all or any part of any of the
obligations described in clause (i) hereof; and
(iv) Payment of all sums advanced and costs and expenses
incurred by the Beneficiary (or by the Trustee) in connection with any of the
foregoing obligations or in connection with the perfection and the security
therefor, whether such advances, costs and expenses were made or incurred at the
request of the Grantor or the Beneficiary (or the Trustee);
THE GRANTOR BY THESE PRESENTS HEREBY IRREVOCABLY grants, gives, bargains, sells,
alienates, enfeoffs, conveys, confirms, sets over, delivers, assigns and
transfers to the Trustee and its successors and assigns, IN TRUST FOREVER, WITH
POWER OF SALE, pursuant to this Deed of Trust and applicable law, for the
benefit of the Beneficiary, all right, title and interest of the Grantor now
owned, or hereafter acquired, in and to the property, rights and interests
hereinafter described in granting clauses (a) through (l) [all property of any
kind described in said clauses (a) through (l) being, collectively, the "Trust
Property"] including, without limitation, (i) such Trust Property that is real
property under the laws of the State of Nevada (such Trust Property that is also
such real property being collectively, the "RP Collateral"); (ii) any RP
Collateral or UCC Collateral (defined below) that is deemed a "fixture" under
the Uniform Commercial Code of the State of Nevada (the "Nevada UCC"); and (iii)
Trust Property that is not RP Collateral to the full extent that Trust Property
may be subject to the Uniform Commercial Code of the State of New York
(collectively, the "UCC Collateral"); provided, however, such grant of the
Leases and Rents shall be absolute and unconditional as set forth in Paragraph 7
below:
(a) (i) the Subject Lease and the leasehold estate in the
Premises created thereunder; (ii) the buildings and improvements owned by the
Grantor now or hereafter located on the Premises (the "Improvements"); (iii) all
modifications, extensions and renewals of the Subject Lease and all credits,
deposits, options, purchase options, privileges and rights of the Grantor under
the Subject Lease, including, but not limited to, the right, if any, to renew or
extend the Subject Lease for a succeeding term or terms, or to acquire fee title
to or other interest in all or any portion of the Premises or to the
Improvements; and (iv) all of the Grantor's rights and remedies at any time
arising under or pursuant to Section 365(h) of the Bankruptcy Code, 11 U.S.C.
Section 101 et seq. (the "Bankruptcy Code"), including, without limitation, all
of the Grantor's rights thereunder to remain in possession of the Premises and
the Improvements;
(b) all of the estate, right, title, claim or demand of any
nature whatsoever of the Grantor, either in law or in equity, in possession or
expectancy, in and to the Premises or any part thereof;
(c) all easements, rights-of-way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water rights and
powers, and all estates, rights, titles, interests, privileges, liberties,
tenements, hereditaments, and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to the Premises (including, without
limitation, any and all development rights, air rights or similar or comparable
rights of any nature whatsoever now or hereafter appurtenant to the Premises or
now or hereafter transferred to the Premises);
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(d) all machinery, apparatus, equipment, fittings, fixtures
and other property of every kind and nature whatsoever and all additions thereto
and renewals and replacements thereof, and all substitutions therefor now owned
or hereafter acquired by the Grantor, or in which the Grantor has or shall have
an interest, now or hereafter located upon or in, or attached to, any portion of
the Premises or appurtenances thereto, or located off-site from the Premises but
purchased with the proceeds of the Advances or of any other loans made to the
Grantor by the Beneficiary and used or usable in connection with the present or
future operation and occupancy of the Premises and all building equipment,
materials and supplies of any nature whatsoever owned by the Grantor, or in
which the Grantor has or shall have an interest, now or hereafter located upon
the Premises and whether stored at the Premises or off-site if used in
connection with such operation and occupancy (collectively, the "Equipment"),
and the right, title and interest of the Grantor in and to any of the Equipment
which may be subject to any security agreements (as defined in the Nevada UCC),
superior in lien to the lien of this Deed of Trust and all proceeds and products
of any of the above;
(e) all awards or payments, including interest thereon, and
the right to receive the same, which may be made with respect to the Premises,
whether from the exercise of the right of eminent domain (including any transfer
made in lieu of the exercise of said right), or for any other injury to or
decrease in the value of the Premises;
(f) all leases and other agreements (other than the Subject
Lease) affecting the use or occupancy of the Premises now or hereafter entered
into (the "Leases") and the right to receive and apply the rents, issues and
profits of the Premises (the "Rents") to the payment of the Obligations;
(g) all right, title and interest of the Grantor in and to (i)
all contracts from time to time executed by the Grantor or any manager or agent
on its behalf relating to the ownership, construction, maintenance, repair,
operation, occupancy, sale or financing of the Premises or any part thereof and
all agreements relating to the purchase or lease of any portion of the Premises
or any property which is adjacent or peripheral to the Premises, together with
the right to exercise such options and all leases of Equipment, (ii) all
consents, licenses (to the extent such grant is permitted by law), building
permits, certificates of occupancy and other governmental approvals relating to
construction, completion, occupancy, use or operation of the Premises or any
part thereof, and (iii) all drawings, plans, specifications and similar or
related items relating to the Premises;
(h) all trade names, trademarks, logos, copyrights, good will
and books and records relating to or used in connection with the operation of
the Premises or any part thereof; all general intangibles related to the
operation of the Premises now existing or hereafter arising;
(i) all accounts and revenues arising from the operation of
the Premises, including, without limitation, (i) any right to payment now
existing or hereafter arising for goods sold or for services rendered, whether
or not yet earned by performance, arising from the operation of the Premises and
(ii) all rights to payment from any consumer credit-charge card organization or
entity, including, without limitation, payments arising from the use of any
credit or debit card, including those now existing or hereafter created,
substitutions therefor, proceeds thereof (whether cash or non-cash, movable or
immovable, tangible or intangible) received upon
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the sale, exchange, transfer, collection or other disposition or substitution
thereof and any and all of the foregoing and proceeds therefrom;
(j) all proceeds of and any unearned premiums on any insurance
policies covering the Premises, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Premises and all refunds of Taxes (as herein
defined);
(k) the right, in the name and on behalf of the Grantor, to
appear in and defend any action or proceeding brought with respect to the
Premises and to commence any action or proceeding to protect the interest of the
Beneficiary in the Premises; and
(l) all rights and estates in reversion or remainder to any
existing and future corrections, modifications, supplements or amendments to, or
renewals, extensions or ratifications of, or replacements or substitutions for,
or accessions, additions or attachments to, or proceeds (both cash and non-cash)
of, any of the foregoing, and all privileges and appurtenances thereunto
belonging.
IN FURTHERANCE OF THE FOREGOING GRANTS, BARGAINS, SALES, ASSIGNMENTS,
TRANSFERS AND CONVEYANCES, AND TO PROTECT THE TRUST PROPERTY AND THE SECURITY
GRANTED BY THIS DEED OF TRUST, THE GRANTOR COVENANTS AND AGREES WITH AND
REPRESENTS AND WARRANTS TO THE BENEFICIARY AS FOLLOWS:
1. Payment of Obligations.
The Grantor will pay the Obligations at the time and in the
manner provided for the payment thereof in the Loan Agreement, the Note and the
other Loan Documents. The Loan Agreement and the Note provide for a variable
rate of interest.
2. Habendum and Warranty of Title.
(a) The Grantor represents that the Grantor is the lawful
owner of the Trust Property in existence on the date hereof, with good right and
authority to encumber and convey it, and that the RP Collateral is free and
clear of all liens, claims and encumbrances, subject to the terms and condition
of the Subject Lease and the other title exceptions expressly set forth in the
title insurance policy issued to the Beneficiary in connection with the Advances
and insuring the lien of this Deed of Trust. The Grantor hereby binds the
Grantor and the Grantor's successors and assigns to forever WARRANT and DEFEND
the Trust Property and every part of it unto the Trustee, his successors or
substitutes in the Trust, and his or their assigns, against the claims and
demands of every person whomsoever lawfully claiming or to claim it or any part
of it (such warranty to supersede any provision contained in this Deed of Trust
limiting the liability of the Grantor), subject to the terms and conditions of
the Subject Lease and the other title exceptions expressly set forth in the
title insurance policy issued to the Beneficiary in connection with the Advances
and insuring the lien of this Deed of Trust. The Grantor further represents and
warrants (i) the Subject Lease is in full force and effect and has not been
modified in any manner whatsoever, (ii) there are no defaults under the Subject
Lease and no event has occurred,
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which but for the passage of time, or notice, or both, would constitute a
default under the Subject Lease, (iii) all rents, additional rents and other
sums due and payable under the Subject Lease have been paid in full, and (iv) no
action has commenced and no notice has been given or received for the purpose of
terminating the Subject Lease.
(b) The Grantor also represents and warrants that (i) the
Grantor is now, and after giving effect to this Deed of Trust, will be in a
solvent condition, (ii) the execution and delivery of this Deed of Trust by the
Grantor does not constitute a "fraudulent conveyance" within the meaning of
Title 11 of the United States Code as now constituted or under any other
applicable statute, and (iii) no bankruptcy or insolvency proceedings are
pending or contemplated by or against the Grantor.
3. Insurance.
At all times prior to the termination of this Deed of Trust,
the Grantor (i) will keep the Improvements and the Equipment insured against
loss or damage by fire, standard extended coverage perils and such other hazards
as the Beneficiary shall from time to time require in amounts approved by the
Beneficiary on a so-called "special form" policy, which amounts shall in no
event be less than 100% of the full insurable replacement value of the
Improvements and the Equipment and shall be sufficient to meet all applicable
co-insurance requirements and will maintain such other forms of insurance
coverage with respect to the Trust Property as the Beneficiary shall require,
and (ii) will maintain rental and business interruption insurance and such other
insurance as the Beneficiary may from time to time require, in amounts approved
by the Beneficiary, including, without limitation, comprehensive general public
liability insurance covering injury and damage to persons and property naming
the Beneficiary as an additional insured. All policies of insurance (the
"Policies") shall be issued by insurers having a minimum policy holders rating
of "A-" per the latest rating publication of Property and Casualty Insurers by
A.M. Best Company and shall have a financial size category of not less than IX,
and who are lawfully doing business in the state of Nevada and are otherwise
acceptable in all respects to the Beneficiary. All Policies shall include a
provision that such Policy (a) will not be cancelled, altered or in any way
limited in coverage or reduced in amount unless the Beneficiary is notified in
writing at least thirty (30) days prior to such cancellation or change, (b)
shall contain a mortgagee non-contribution clause endorsement or an equivalent
endorsement satisfactory to the Beneficiary naming the Beneficiary as the person
to which all payments made by the insurer thereunder shall be paid and shall
otherwise be in form and substance satisfactory in all respects to the
Beneficiary and (c) shall indicate the Beneficiary's address as Xxxxxx Xxxxxxx
Xxxx Xxxxxx Commercial Financial Services, Inc., 0000 Xxxxxxxxxxx Xxxxxx, 0xx
Xxxxx X.X., Xxxxxxxx, Xxx Xxxx 00000, or such other address as the Beneficiary
may designate from time to time. Blanket insurance policies shall not be
acceptable for the purposes of this Paragraph 3 unless otherwise approved to the
contrary by the Beneficiary. The Grantor shall pay the premiums for the Policies
as the same become due and payable. At the request of the Beneficiary, the
Grantor will deliver the Policies to the Beneficiary. Not later than ten (10)
days prior to the expiration date of each of the Policies, the Grantor will
deliver to the Beneficiary a renewal policy or policies marked "premium paid" or
accompanied by other evidence satisfactory to the Beneficiary that the Policies
are in effect and the premiums have been paid. If at any time the Beneficiary is
not in receipt of written evidence that all insurance required hereunder is in
full force and effect, the Beneficiary shall have the right without notice to
the
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Grantor to take such action as the Beneficiary deems necessary to protect its
interest in the Trust Property, including, without limitation, the obtaining of
such insurance coverage as the Beneficiary in its sole discretion deems
appropriate, and all expenses incurred by the Beneficiary in connection with
such action or in obtaining such insurance and keeping it in effect shall be
paid by the Grantor to the Beneficiary upon demand. The Grantor shall at all
times comply with and shall cause the Improvements and Equipment and the use,
occupancy, operation, maintenance, alteration, repair and restoration thereof to
comply with the terms, conditions, stipulations and requirements of the
Policies. If the Premises, or any portion of the Improvements or the Equipment,
is located in a Federally designated "special flood hazard area," in addition to
the other Policies required under this Paragraph 3, a flood insurance policy
shall be delivered by the Grantor to the Beneficiary. If no portion of the
Premises is located in a Federally designated "special flood hazard area" such
fact shall be substantiated by a certificate in form satisfactory to the
Beneficiary from a licensed surveyor, appraiser or professional engineer or
other qualified person. If the Trust Property shall be damaged or destroyed, in
whole or in part, by fire or other property hazard or casualty, the Grantor
shall give prompt notice thereof to the Beneficiary. Sums paid to the
Beneficiary by any insurer may be retained and applied by the Beneficiary toward
payment of the Obligations, or held as cash collateral therefor, whether or not
then due and payable in such order, priority and proportions as the Beneficiary
in its discretion shall deem proper or, at the discretion of the Beneficiary,
the same may be paid, either in whole or in part, to the Grantor for such
purposes as the Beneficiary shall designate. If the Beneficiary shall receive
and retain such insurance proceeds, the lien of this Deed of Trust shall be
reduced only by the amount thereof received and retained by the Beneficiary and
actually applied by the Beneficiary in reduction of the Obligations. This
Paragraph 3 is subject to the terms of the Subject Lease.
4. Payment of Taxes, etc.
(a) To the extent that the Grantor is obligated to pay the
same under the Subject Lease or under applicable law, the Grantor shall pay all
taxes, assessments, water rates, sewer rents and other charges, including vault
charges and license fees for the use of vaults, chutes and similar areas
adjoining the Premises, now or hereafter levied or assessed against the Trust
Property and the Premises (the "Taxes") prior to the date upon which any fine,
penalty, interest or cost may be added thereto or imposed by law for the
nonpayment thereof, and the Grantor shall deliver to the Beneficiary, upon
request, receipted bills, canceled checks and other evidence satisfactory to the
Beneficiary evidencing the payment of the Taxes prior to the date upon which any
fine, penalty, interest or cost may be added thereto or imposed by law for the
nonpayment thereof.
(b) After prior notice to the Beneficiary, in the case of any
material item, the Grantor, at its own expense, may contest by appropriate legal
proceeding, promptly initiated and conducted in good faith and with due
diligence, the amount or validity or application in whole or in part of any of
the Taxes, provided that (i) no default shall have occurred and shall be
continuing under the Note or this Deed of Trust, (ii) the Grantor is permitted
to do so under the provisions of the Subject Lease, (ii) such proceeding shall
suspend the collection of the contested Taxes from the Grantor and from the
Trust Property, (iv) such proceeding shall be permitted under and be conducted
in accordance with the provisions of any other instrument to which the Grantor
or the Trust Property is subject and shall not constitute a default thereunder,
(v) neither
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the Trust Property nor any part thereof nor any interest therein will in the
opinion of the Beneficiary be in danger of being sold, forfeited, terminated,
canceled or lost, and (vi) the Grantor shall have set aside in an
interest-bearing account with the Beneficiary, and otherwise in a manner
satisfactory to the Beneficiary, adequate cash reserves for the payment of the
contested Taxes, together will all interest and penalties thereon, or in the
alternative the Grantor shall have furnished such security as may be required in
the proceeding, or as may otherwise be requested or required by the Beneficiary
to insure the payment of the contested Taxes, together with all interest and
penalties thereon, and, provided further, that if at any time the Beneficiary
determines, in its sole and absolute discretion, that payment of any tax,
assessment or other charge shall become necessary to prevent the delivery of a
tax deed conveying the Trust Property or any portion thereof because of
non-payment of any such sums, then the Grantor shall pay or cause to be paid the
sums in sufficient time to prevent the delivery of such tax deed.
(c) If a default shall occur under the Note or this Deed of
Trust either prior to, or after, initiating said proceeding, the Beneficiary
shall have the right to either initiate or continue said proceeding, as the case
may be, either in its own name or as agent of the Grantor. The Grantor shall
cooperate with the Beneficiary and make available to the Beneficiary upon demand
any and all information, and execute any documents or pleadings, which the
Beneficiary may reasonably require. The Beneficiary shall then conduct said
proceeding in a manner it deems appropriate, and at its own expense, subject to
any right of reimbursement from the Grantor in accordance with the provisions of
this Deed of Trust.
5. Escrow Fund.
To the extent that the Grantor is obligated to pay the Taxes
under the Subject Lease or under applicable law, the Grantor will, at the option
of the Beneficiary, pay to the Beneficiary on the first day of each calendar
month one-twelfth of an amount (the "Escrow Fund") which would be sufficient to
pay the Taxes payable, or estimated by the Beneficiary to be payable, during the
ensuing twelve (12) months. The Beneficiary will apply the Escrow Fund to the
payment of Taxes which are required to be paid by the Grantor pursuant to the
provisions of this Deed of Trust. If the amount of the Escrow Fund shall exceed
the amount of the Taxes payable by the Grantor pursuant to the provisions of
this Deed of Trust, the Beneficiary shall, in its discretion, (a) return any
excess to the Grantor, (b) credit such excess against future payments to be made
to the Escrow Fund or (c) credit such excess against the Debt in such priority
and proportions as the Grantor in its sole discretion shall deem proper. In
returning such excess, the Beneficiary may deal with the person shown on the
records of the Beneficiary to be the owner of the Trust Property. If the Escrow
Fund is not sufficient to pay the Taxes, as the same become payable, the Grantor
shall pay to the Beneficiary, upon request, an amount which the Beneficiary
shall estimate as sufficient to make up the deficiency. Any amounts in the
Escrow Fund may not be commingled with the general funds of the Beneficiary and
shall constitute additional security for the Obligations and shall bear
interest.
6. Condemnation.
Notwithstanding any taking of all or any portion of the Trust
Property by any public or quasi-public authority through eminent domain or
otherwise, the Grantor shall continue to pay the Obligations at the times and in
the manner provided therefor in the Note, this Deed of
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Trust and the other Loan Documents, and the Obligations shall not be reduced
until any award or payment therefor shall have been actually received and
applied by the Beneficiary to the reduction of the Obligations. The Beneficiary
may hold such award or payment as cash collateral for the Obligations and/or
apply all or any of the same to the reduction of the Obligations whether or not
then due and payable in such order, priority and proportions as the Beneficiary
in its discretion shall deem proper. If the Trust Property is sold, through
foreclosure or otherwise, prior to the receipt by the Beneficiary of such award
or payment, the Beneficiary shall have the right, whether or not a deficiency
judgment shall have been sought, recovered or denied with respect to the
Obligations, to receive such award or payment, or a portion thereof sufficient
to pay the Obligations, whichever is less. The Grantor shall file and prosecute
its claim or claims for any such award or payment in good faith and with due
diligence and cause the same to be collected and paid over to the Beneficiary.
The Grantor hereby irrevocably authorizes and empowers the Beneficiary, in the
name of the Grantor or otherwise, to collect and receipt for any such award or
payment and to file and prosecute such claim or claims. Although it is hereby
expressly agreed that the same shall not be necessary in any event, the Grantor
shall, upon demand of the Beneficiary, make, execute and deliver any and all
assignments and other instruments sufficient for the purpose of assigning any
such award or payment to the Beneficiary, free and clear of any encumbrances of
any kind or nature whatsoever.
7. Leases and Rents.
(a) Grantor hereby absolutely and unconditionally assigns,
sells, transfers and conveys all of the right, title and interest in and to all
Leases and all renewals, replacements and guarantees thereof along with all of
the Rents to Beneficiary. This assignment is absolute in nature and not an
assignment for additional security only. Subject to the terms of this Paragraph
7, the Beneficiary waives the right to enter the Premises for the purposes of
collecting the Rents, and grants the Grantor the right to collect the Rents. The
Grantor shall hold the Rents, or an amount sufficient to discharge all current
sums due in respect of the Obligations in trust for use in payment of the
Obligations. The right of the Grantor to collect the Rents may be revoked by the
Beneficiary without notice upon any default under the terms of the Note or this
Deed of Trust. Following such revocation, the Beneficiary may retain and apply
the Rents toward payment of the Obligations, in such order, priority and
proportions as the Beneficiary, in its discretion, shall deem proper, or to the
operation, maintenance and repair of the Trust Property, and irrespective of
whether the Beneficiary shall have commenced any sale or foreclosure of this
Deed of Trust or shall have applied or arranged for the appointment of a
receiver. The Grantor shall not, without the consent of the Beneficiary, make,
or suffer to be made, any Leases or modify or cancel any Leases, or accept
prepayments of installments of the Rents for a period of more than one (1) month
in advance or further assign the whole or any part of the Rents. Notwithstanding
the foregoing, the Beneficiary will not unreasonably withhold its consent to the
Grantor making a new Lease or renewing an existing Lease provided that (i) no
Event of Default has occurred hereunder and (ii) such new or renewed Lease is
(a) for actual occupancy, (b) at market rents, (c) for a reputable use as
reasonably determined by the Beneficiary and (d) made pursuant to documentation
in form and substance satisfactory in all respect to the Beneficiary. The
Grantor shall (a) fulfill or perform each and every provision of the Leases on
the part of the Grantor to be fulfilled or performed, (b) promptly send copies
of all notices of default which the Grantor shall send or receive under the
Leases to the Beneficiary, and (c) enforce the performance or observance of the
provisions thereof by the tenants thereunder. The Grantor
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shall from time to time, but not less frequently than once every 180 days,
provide to the Beneficiary a complete and detailed leasing status report with
respect to the Improvements, which leasing status report shall be in form and
substance satisfactory in all respects to the Beneficiary. In addition to the
rights which the Beneficiary may have herein, in the event of any default under
this Deed of Trust, the Beneficiary, at its option, may require the Grantor to
pay monthly in advance to the Beneficiary, or any receiver appointed to collect
the Rents, the fair and reasonable rental value for the use and occupation of
such part of the Premises as may be in possession of the Grantor. Upon default
in any such payment, the Grantor will vacate and surrender possession of the
Premises to the Beneficiary, or to such receiver, and, in default thereof, the
Grantor may be evicted by summary proceedings or otherwise. Nothing contained in
this Paragraph 7(a) shall be construed as imposing on the Beneficiary any of the
obligations of the lessor under the Leases or of a "mortgagee in possession" (or
equivalent).
(b) The Grantor acknowledges and agrees that, upon recordation
of this Deed of Trust, the Beneficiary's interest in the Rents shall be deemed
to be fully perfected, "xxxxxx" and enforced as to the Grantor and all third
parties, including without limitation any subsequently appointed trustee in any
case under the Bankruptcy Code (as hereinafter defined), without the necessity
of (i) commencing an action for the sale or foreclosure of the Trust Property,
(ii) furnishing notice to the Grantor or tenants under the Leases, (iii) making
formal demand for the Rents, (iv) taking possession of the Premises, (v)
obtaining the appointment of a receiver of the rents and profits of the
Premises, (vi) sequestering or impounding the Rents, or (vii) taking any other
affirmative action.
(c) For purposes of Section 552(b) of the Bankruptcy Code, the
Grantor and the Beneficiary agree that this Deed of Trust shall constitute a
"security agreement," that the security interest created by such security
agreement extends to property of the Grantor acquired before the commencement of
a case in bankruptcy and to all amounts paid as Rents and that such security
interest shall extend to all Rents acquired by the estate after the commencement
of a case in bankruptcy.
(d) The Grantor acknowledges and agrees that all Rents shall
be deemed to be "Cash Collateral" under Section 363 of the Bankruptcy Code in
the event that the Grantor files a voluntary petition in bankruptcy or is made
subject to any involuntary bankruptcy proceeding. After the filing of such
petition, the Grantor may not use Cash Collateral without the consent of the
Beneficiary and/or an order of any bankruptcy court pursuant to Section
363(b)(2) of the Bankruptcy Code.
(e) It is agreed and understood that the Beneficiary hereby
reserves the right and shall have the right, at any time and from time to time,
without the consent or joinder of any other party, to subordinate this Deed of
Trust and the liens, assignments and security interests created by this Deed of
Trust to all or any of the Leases regardless of the respective priority of any
of such Leases and this Deed of Trust. Upon doing so, a foreclosure of the
Beneficiary's liens, assignments and security interests under this Deed of Trust
shall be subject to and shall not operate to extinguish any of said Leases as to
which such subordination is operative.
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8. Maintenance of the Trust Property.
The Grantor represents and warrants that, to the best of its
knowledge, the uses to which the Trust Property is put are, as of the date
hereof, in material compliance with all zoning, land use and similar laws, rules
and regulations (including, without limitation, all parking requirements). The
Grantor shall cause the Trust Property to be maintained in good condition and
repair and will not commit or suffer to be committed any waste of the Trust
Property. The Improvements and the Equipment shall not be removed, demolished or
materially altered (except for normal replacement of the Equipment), without the
prior written consent of the Beneficiary. The Grantor shall promptly comply with
all existing and future governmental laws, orders, ordinances, rules and
regulations affecting the Trust Property, or any portion thereof or the use
thereof. The Grantor shall promptly repair, replace or rebuild any part of the
Trust Property which may be damaged or destroyed by fire or other property
hazard or casualty (including any fire or other property hazard or casualty for
which insurance was not obtained or obtainable) or which may be affected by any
taking by any public or quasi-public authority through eminent domain or
otherwise, and shall complete and pay for, within a reasonable time, any
structure at any time in the process of construction or repair on the Premises.
If such fire or other property hazard or casualty shall be covered by the
Policies, the Grantor's obligation to repair, replace or rebuild such portion of
the Trust Property shall be contingent upon the Beneficiary paying the Grantor
the proceeds of the Policies, or such portion thereof as shall be sufficient to
complete such repair, replacement or rebuilding, whichever is less. The Grantor
will not, without obtaining the prior consent of the Beneficiary, initiate, join
in or consent to any private restrictive covenant, zoning ordinance, or other
public or private restrictions, limiting or affecting the uses which may be made
of the Trust Property or any part thereof.
9. Environmental Provisions.
(a) For the purposes of this Paragraph 9, the following terms
shall have the following meanings: (i) the term "Governmental Authority" shall
mean the Federal government, or any state or other political subdivision
thereof, or any agency, court or body of the Federal government, any state or
other political subdivision thereof, exercising executive, legislative,
judicial, regulatory or administrative functions. For purposes of this Paragraph
9 only, the term "Trust Property" shall include the land comprising the
Premises, (ii) the "Environmental Requirements" shall collectively mean all
present and future laws, statutes, common law, ordinances, rules, regulations,
orders, codes, licenses, permits, decrees, judgments, directives or the
equivalent of or by any Governmental Authority and relating to or addressing the
protection of the environment or human health, and (iii) the term "Hazardous
Material" shall mean any material or substance that, whether by its nature or
use, is now or hereafter defined or regulated as a hazardous waste, hazardous
substance, pollutant or contaminant under any Environmental Requirement, or
which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous or which is or contains
petroleum, gasoline, diesel fuel, another petroleum hydrocarbon product,
asbestos, asbestos-containing materials or polychlorinated biphenyls.
(b) The Grantor hereby represents and warrants to the
Beneficiary to the best of its knowledge that (i) except as specifically set
forth in the Phase I Environmental Assessment dated October 19, 1994 prepared by
Terracon Consultants Western, Inc. (heretofore reviewed by
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the Beneficiary or its consultant), no Hazardous Material is currently located
at, on, in, under or about the Trust Property in violation of any Environmental
Requirements, (ii) no releasing, emitting, discharging, leaching, dumping,
disposing or transporting of any Hazardous Material from the Trust Property onto
any other property or from any other property onto or into the Trust Property
has occurred or is occurring in violation of any Environmental Requirement,
(iii) no notice of violation, non-compliance, liability or potential liability,
lien, complaint, suit, order or other notice with respect to the Trust Property
is presently outstanding under any Environmental Requirement, nor does the
Grantor have knowledge or reason to believe that any such notice will be
received or is being threatened, and (iv) the Trust Property and the operation
thereof are in full compliance with all Environmental Requirements.
(c) The Grantor shall comply, and shall cause all tenants or
other occupants of the Trust Property deriving their interests through the
Grantor to comply, in all respects with all Environmental Requirements, and will
not generate, store, handle, process, dispose of or otherwise use, and will not
permit any tenant or other occupant of the Trust Property to generate, store,
handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, or
about the Trust Property in a manner that could lead or potentially lead to the
imposition on the Grantor, the Beneficiary or the Trust Property of any
liability or lien of any nature whatsoever under any Environmental Requirement.
The Grantor shall notify the Beneficiary promptly in the event of any spill or
other release of any Hazardous Material at, in, on, under or about the Trust
Property which is required to be reported to a Governmental Authority under any
Environmental Requirement, will promptly forward to the Beneficiary copies of
any notices received by the Grantor relating to alleged violations of any
Environmental Requirement or any potential liability under any Environmental
Requirement and will promptly pay when due any fine or assessment against the
Beneficiary, the Grantor or the Trust Property relating to any Environmental
Requirement. If at any time it is determined that the operation or use of the
Trust Property is in violation of any applicable Environmental Requirement or
that there are Hazardous Materials located at, in, on, under or about the Trust
Property which violate any applicable Environmental Requirement or that there
are Hazardous Materials located at, in, on, under or about the Trust Property
which, under any Environmental Requirement, require special handling in
collection, storage, treatment or disposal, or any form of cleanup or corrective
action, the Grantor shall, within thirty (30) days after receipt of notice
thereof from any Governmental Authority or from the Beneficiary, take, at the
Grantor's sole cost and expense, such actions as may be necessary to fully
comply in all respects with all Environmental Requirements, provided, however,
that if such compliance cannot reasonably be completed within such thirty (30)
day period, the Grantor shall commence such necessary action within such thirty
(30) day period and shall thereafter diligently and expeditiously proceed to
fully comply in all respects and in a timely fashion with all Environmental
Requirements.
(d) If the Grantor fails to timely take, or to diligently and
expeditiously proceed to complete in a timely fashion (as determined by the
Beneficiary in its sole and absolute discretion), any such action described in
clause (c) above, the Beneficiary may, in its sole and absolute discretion, make
advances or payments toward the performance or satisfaction of the same, but
shall in no event be under any obligation to do so. All sums so advanced or paid
by the Beneficiary (including, without limitation, counsel and consultant fees
and expenses, investigation and laboratory fees and expenses, and fines or other
penalty payments) and all sums advanced or paid in connection with any judicial
or administrative investigation or
11
proceeding relating thereto, will immediately, upon demand, become due and
payable from the Grantor and shall bear interest at the Default Rate from the
date any such sums are so advanced or paid by the Beneficiary until the date any
such sums are repaid by the Grantor to the Beneficiary. The Grantor will execute
and deliver, promptly upon request, such instruments as the Beneficiary may deem
useful or necessary to permit the Beneficiary to take any such action, and such
additional notes and instruments, as the Beneficiary may require to secure all
sums so advanced or paid by the Beneficiary. If a lien is filed against the
Trust Property by any Governmental Authority resulting from the need to expend
or the actual expending of monies arising from an action or omission, whether
intentional or unintentional, of the Grantor or for which the Grantor is
responsible, resulting in the releasing, spilling, leaking, leaching, pumping,
emitting, pouring, emptying or dumping of any Hazardous Material into the waters
or onto land located within or without the state of Nevada where the Trust
Property is located, then the Grantor will, within thirty (30) days from the
date that the Grantor is first given notice that such lien has been placed
against the Trust Property (or within such shorter period of time as may be
specified by the Beneficiary if such Governmental Authority has commenced steps
to cause the Trust Property to be sold pursuant to such lien), either (i) pay
the claim and remove the lien, or (ii) furnish a cash deposit, bond, or such
other security with respect thereto as is satisfactory in all respects to the
Beneficiary and is sufficient to effect a complete discharge of such lien on the
Trust Property.
(e) The Beneficiary may, at its option, at any time or times,
but not more than one time per year, cause an environmental audit of the Trust
Property or portions thereof to be conducted to confirm the Grantor's compliance
with the provisions of this Paragraph 9; provided, however, the Grantor shall
not unreasonably withhold its consent to the Beneficiary's request to cause an
environmental audit more than one time per year. In addition, the Beneficiary
may, at its option if the Beneficiary reasonably believes that a Hazardous
Material or other environmental condition violates or threatens to violate any
Environmental Requirement, cause an environmental audit of the Trust Property or
portions thereof to be conducted to confirm the Grantor's compliance with the
provisions of this Paragraph 9. The Grantor shall cooperate in all reasonable
ways with the Beneficiary in connection with any such audit. If any audit
discloses that a violation of or a liability under an Environmental Requirement
exists, or if such audit was required by the Beneficiary under the second
sentence of this subparagraph (e), or was prescribed by law, regulation or
governmental or quasi-governmental authority, the Grantor shall pay all costs
and expenses incurred in connection with such audit; otherwise, the costs and
expenses of such audit shall, notwithstanding anything to the contrary set forth
in this Paragraph 9, be paid by the Beneficiary.
(f) If this Deed of Trust is foreclosed, or if the Trust
Property is sold pursuant to the provisions of this Deed of Trust, or if the
Grantor tenders a deed or assignment in lieu of foreclosure or sale, the Grantor
shall deliver the Trust Property to the purchaser at foreclosure or sale or to
the Beneficiary, its nominee, or wholly-owned subsidiary, as the case may be, in
a condition that complies in all respects with all Environmental Requirements.
(g) The Grantor will defend, indemnify, and hold harmless the
Beneficiary, its employees, agents, officers, and directors, from and against
any and all claims, demands, penalties, causes of action, fines, liabilities,
settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, foreseen or unforeseen, contingent or otherwise (including,
12
without limitation, counsel and consultant fees and expenses, investigation and
laboratory fees and expenses, court costs, and litigation expenses) arising out
of, or in any way related to, (i) any breach by the Grantor of any of the
provisions of this Xxxxxxxxx 0, (xx) the presence, disposal, spillage,
discharge, emission, leakage, release, or threatened release of any Hazardous
Material which is at, in, on, under, about, from or affecting the Trust
Property, including, without limitation, any damage or injury resulting from any
such Hazardous Material to or affecting the Trust Property or the soil, water,
air, vegetation, buildings, personal property, persons or animals located on the
Trust Property or on any other property or otherwise, (iii) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or related to any such Hazardous Material, (iv) any lawsuit brought or
threatened, settlement reached, or order or directive of or by any Governmental
Authority relating to such Hazardous Material, or (v) any violation of any
Environmental Requirement or any policy or requirement of the Beneficiary
hereunder. The aforesaid indemnification shall, notwithstanding any exculpatory
or other provision of any other document or instrument now or hereafter executed
and delivered in connection with the Advances and secured by this Deed of Trust,
constitute the personal recourse undertakings, obligations and liabilities of
the Grantor. Notwithstanding the foregoing, the aforesaid indemnification shall
not be applicable with respect to any claim, demand, penalty, cause of action,
fine, liability, settlement, damage, cost or other expense of any type
whatsoever occasioned, arising and caused solely and directly as the result of
the gross negligence or willful misconduct of the Beneficiary, its nominee or
wholly-owned subsidiary or their respective employees or agents subsequent to
the date upon which the Beneficiary, its nominee or wholly-owned subsidiary
acquires possession of the Trust Property following foreclosure of this Deed of
Trust, a sale of the Trust Property pursuant to the provisions of this Deed of
Trust, acceptance of a deed or assignment in lieu of foreclosure or sale or
otherwise, or occasioned, arising and caused solely and directly as the result
of any act of any person (other than (i) an act of the Grantor or a Guarantor or
any subsidiary, employee, agent or affiliate of any of them, or an act of the
Beneficiary, its nominee or affiliate or their respective employees or agents
which does not constitute gross negligence or willful misconduct, or (ii) an act
of any governmental authority, including, without limitation, any change in any
Environmental Requirements) and occurring subsequent to the earlier to occur of
(x) the date of payment to the Beneficiary in cash of the Obligations, and (y)
the date upon which the Beneficiary, its nominee or affiliate acquires
possession of the Trust Property by foreclosure of this Deed of Trust, a sale of
the Trust Property pursuant to the provisions of this Deed of Trust, acceptance
of a deed or assignment in lieu of foreclosure or sale, or otherwise.
(h) The obligations and liabilities of the Grantor under this
Paragraph 9 shall survive and continue in full force and effect and shall not be
terminated, discharged or released, in whole or in part, irrespective of whether
the Obligations have been paid in full and irrespective of any foreclosure of
this Deed of Trust, sale of the Trust Property pursuant to the provisions of
this Deed of Trust or acceptance by the Beneficiary, its nominee or affiliate of
a deed or assignment in lieu of foreclosure or sale and irrespective of any
other fact or circumstance of any nature whatsoever.
13
10. Estoppel Certificates.
The Grantor, within fifteen (15) days after request by the
Beneficiary and at its expense, will furnish the Beneficiary with a statement,
duly acknowledged and certified, setting forth the amount of the Obligations and
the offsets or defenses thereto, if any.
11. Transfer or Encumbrance of the Trust Property.
(a) No part of the Trust Property nor any interest of any
nature whatsoever therein nor any interest of any nature whatsoever in the
Grantor (whether stock, equity, beneficial, profit, loss or otherwise) shall in
any manner, directly or indirectly, be further encumbered, sold, transferred or
conveyed, or permitted to be further encumbered, sold, transferred, assigned or
conveyed without the prior consent of the Beneficiary, which consent in any and
all circumstances may be withheld in the sole and absolute discretion of the
Beneficiary. The provisions of the foregoing sentence of this Paragraph 11 shall
apply to each and every such further encumbrance, sale, transfer, assignment or
conveyance, regardless of whether or not the Beneficiary has consented to, or
waived by its action or inaction its rights hereunder with respect to, any such
previous further encumbrance, sale, transfer, assignment or conveyance, and
irrespective of whether such further encumbrance, sale, transfer, assignment or
conveyance is voluntary, by reason of operation of law or is otherwise made.
(b) Anything contained in this Paragraph 11 to the contrary
notwithstanding, indirect transfers of interests in the Grantor arising from
transfers of interests in The Xxxxx & Wollensky Restaurant Group, Inc. shall not
be a default hereunder provided that such transfers do not constitute a Change
in Control (as defined in the Loan Agreement) in The Xxxxx & Wollensky
Restaurant Group, Inc.
12. Notice.
Any notice, request, demand, statement, authorization,
approval or consent made hereunder shall be in writing and shall be addressed,
delivered and deemed delivered as provided in the Loan Agreement.
13. Sale of Trust Property.
If this Deed of Trust is foreclosed, the Trust Property, or
any interest therein, may, at the discretion of the Beneficiary, be sold in one
or more parcels or in several interests or portions and in any order or manner.
14. Changes in Laws Regarding Taxation.
In the event of the passage after the date of this Deed of
Trust of any law of the state of Nevada deducting from the value of real
property for the purpose of taxation any lien or encumbrance thereon or changing
in any way the laws for the taxation of deeds of trust or mortgages or the
obligations secured by deeds of trust or mortgages for state or local purposes
or the manner of the collection of any such taxes, and imposing a tax, either
directly or indirectly, on the Loan Agreement, this Deed of Trust, the Note or
the Obligations, the Grantor shall, if permitted by law, pay any tax imposed as
a result of any such law within the statutory period or
14
within twenty (20) days after demand by the Beneficiary, whichever is less,
provided, however, that if, in the opinion of the attorneys for the Beneficiary,
the Grantor is not permitted by law to pay such taxes, the Beneficiary shall
have the right, at its option, to declare the Obligations due and payable on a
date specified in a prior notice to the Grantor of not less than thirty (30)
days.
15. No Credits on Account of the Obligations.
The Grantor will not claim or demand or be entitled to any
credit or credits on account of the Obligations for any part of the Taxes
assessed against the Trust Property or any part thereof and no deduction shall
otherwise be made or claimed from the taxable value of the Trust Property, or
any part thereof, by reason of this Deed of Trust or the Obligations. If at any
time this Deed of Trust shall secure less than all of the principal amount of
the Obligations, it is expressly agreed that any repayment of any portion of the
Obligations shall not reduce the amount of the lien of this Deed of Trust until
the lien amount shall equal the principal amount of the Obligations outstanding.
16. Offsets, Counterclaims and Defenses.
Any assignee of this Deed of Trust, the Note and/or the
Obligations shall take the same free and clear of all offsets, counterclaims or
defenses of any nature whatsoever which the Grantor may have against any
assignor of this Deed of Trust, the Note and the Loan Agreement, and no such
offset, counterclaim or defense shall be interposed or asserted by the Grantor
in any action or proceeding brought by any such assignee upon this Deed of
Trust, the Note or the Loan Agreement, and any such right to interpose or assert
any such offset, counterclaim or defense in any such action or proceeding is
hereby expressly waived by the Grantor.
17. Other Security for the Obligations.
The Grantor shall observe and perform all of the terms,
covenants and provisions contained in the Loan Agreement, the Note and the other
Loan Documents to which the Grantor is a party.
18. Documentary Stamps.
If at any time the United States of America, any state
thereof, or any governmental subdivision of any such state, shall require
revenue or other stamps to be affixed to the Note or this Deed of Trust, then
except to the extent prohibited under the laws of the state of Nevada, the
Grantor will pay for the same, with interest and penalties thereon, if any.
19. Right of Entry.
Upon prior notice, the Beneficiary and its agents shall have
the right to enter and inspect the Trust Property at all reasonable times.
20. Books and Records.
In addition to the covenant regarding financial reporting set
forth in the Loan Agreement, the Grantor will keep and maintain or will cause to
be kept and maintained on a
15
fiscal year basis in accordance with generally accepted accounting practices
consistently applied, proper and accurate books, records and accounts reflecting
all of the financial affairs of the Grantor and all items of income and expense
in connection with the operation of the Trust Property or in connection with any
services, equipment or furnishings provided in connection with the operation of
the Trust Property, whether such income or expense be realized by the Grantor or
by any other person whatsoever excepting lessees unrelated to and unaffiliated
with the Grantor who have leased from the Grantor portions of the Trust Property
for the purpose of occupying the same. The Beneficiary shall have the right from
time to time at all times during normal business hours to examine such books,
records and accounts at the office of the Grantor or other person maintaining
such books, records and accounts and to make copies or extracts thereof as the
Beneficiary shall desire.
21. Performance of Other Agreements.
The Grantor shall observe and perform each and every term to
be observed or performed by the Grantor pursuant to the terms of any agreement
or recorded instrument affecting or pertaining to the Trust Property.
22. Events of Default.
The occurrence of any of the following events ("Events of
Default") shall (except in the case of clause (a) below where no such exercise
of an option shall be necessary to the extent the effect of an "Event of
Default" thereunder is automatic under the terms of the Loan Agreement itself),
at the option of the Beneficiary, make all amounts then remaining unpaid on the
Obligations immediately due and payable, all without further demand,
presentment, notice or other requirements of any kind, all of which are hereby
expressly waived by the Grantor, and the lien, encumbrance and security interest
evidenced or created hereby shall be subject to sale or foreclosure in any
manner provided for herein or provided for by law:
(a) if an "Event of Default" as defined therein shall occur
under the Loan Agreement;
(b) if any Federal tax lien is filed against the Grantor which
encumbers the Trust Property and the same is not discharged of record within
thirty (30) days after the same is filed;
(c) if without the consent of the Beneficiary any Improvement
or the Equipment (except for the normal replacement of the Equipment) is
removed, demolished or materially altered, or if the Trust Property is not kept
in good condition and repair;
(d) if the Grantor shall fail to comply with any requirement
or order or notice of violation of law or ordinance issued by any governmental
department claiming jurisdiction over the Trust Property within three (3) months
from the issuance thereof, or the time period set forth therein, whichever is
less;
(e) if the Policies are not kept in full force and effect, or
if the Policies are not delivered to the Beneficiary upon request;
16
(f) if the Grantor shall fail to pay the Beneficiary on demand
for all Premiums and/or Taxes paid by the Beneficiary pursuant to this Deed of
Trust, together with any late payment charge and interest thereon calculated at
the Default Rate;
(g) if, except as expressly permitted under Paragraph 7
hereof, any Leases are made, canceled or modified, or if any portion of the
Rents is paid for a period of more than one (1) month in advance or if any of
the Rents are further assigned, without the consent of the Beneficiary in each
instance;
(h) if the Grantor ceases to occupy at least 75% of the
rentable square feet at the Premises for the conducting of the business operated
thereon on the date of this Deed of Trust;
(i) if the Trust Property shall become subject (i) to any tax
lien by virtue of any act or omission of the Grantor, other than a lien for
local real estate taxes and assessments not due and payable, or (ii) to any lis
pendens, notice of pendency, stop order, notice of intention to file mechanic's
or materialman's lien, mechanic's or materialman's lien or other lien of any
nature whatsoever and the same shall not either be discharged of record or in
the alternative insured over to the satisfaction of the Beneficiary by any title
company insuring the lien of this Deed of Trust within a period of the shorter
of (i) the time provided therefor under the Subject Lease and (ii) 45 days after
the same is filed or recorded, and irrespective of whether the same is superior
or subordinate in lien or other priority to the lien of this Deed of Trust and
irrespective of whether the same constitutes a perfected or inchoate lien or
encumbrance on the Trust Property or is only a matter of record or notice;
(j) if (i) the Grantor shall default in the observance or
performance of any term, covenant or condition of the Subject Lease on the part
of the Grantor, as lessee thereunder, to be observed or performed, unless any
such observance or performance shall have been waived or not required in writing
by the lessor under the Subject Lease, which default continues beyond notice and
cure periods, applicable thereto, if any, or (ii) any one or more events shall
occur which would or may cause the Subject Lease to terminate without notice or
action by the lessor thereunder or which would entitle the lessor under the
Subject Lease to terminate the Subject Lease and the term thereof by giving
notice to the Grantor, as lessee thereunder, or (iii) the leasehold estate
created by the Subject Lease shall be surrendered, in whole or in part, or (iv)
the Subject Lease shall be terminated or canceled for any reason or under any
circumstance whatsoever, or (v) any of the terms, covenants or conditions of the
Subject Lease shall be modified, changed, supplemented, altered or amended in
any material manner without the consent of the Beneficiary, or (vi) the Grantor
shall, without the Beneficiary's prior written approval, elect to treat the
Subject Lease as terminated under section 365(h)(1) of the Bankruptcy Code (it
being understood that any such election made by the Grantor, as holder of the
leasehold estate in the Trust Property, without the Beneficiary's prior written
consent, in addition to constituting an Event of Default, shall be void); or
(k) if the Grantor shall continue to be in default under any
of the terms, covenants or conditions of this Deed of Trust (other than as
described in any of Subparagraphs (a) through (j) of this Paragraph 22) for ten
(10) days after written notice from the Beneficiary in the case of any default
which can be cured by the payment of a sum of money or for thirty (30)
17
days after written notice from the Beneficiary in the case of any other default,
provided that if such default cannot reasonably be cured within such thirty (30)
day period and the Grantor shall have commenced to cure such default within such
thirty (30) day period and thereafter diligently and expeditiously proceeds to
cure the same, such thirty (30) day period shall be extended for so long as it
shall require the Grantor in the exercise of due diligence to cure such default,
it being agreed that no such extension shall be for a period in excess of ninety
(90) days.
23. Remedies.
(a) General. Upon the occurrence and during the continuance of
any one or more Events of Default, the Beneficiary may, in addition to any
rights or remedies available to it hereunder or under the other Loan Documents,
but subject to any applicable provisions of the Loan Agreement and to the extent
permitted by applicable law, take such action personally or by its agents or
attorneys, with or without entry, and without notice of intent to accelerate,
notice of acceleration or other notice, demand, presentment or protest (each and
all of which are hereby expressly WAIVED), as it deems necessary or advisable to
protect and enforce the Beneficiary's rights and remedies against the Grantor
and in and to the Trust Property, including, without limitation, the actions
described in this Paragraph 23, each of which may be pursued concurrently or
otherwise, at such time and in such order as the Beneficiary may determine, in
its sole discretion, without impairing or otherwise affecting its other
capitalized rights or remedies.
(b) Acceleration; Notice. Time is of the essence with respect
to the Grantor's obligations hereunder. Upon the occurrence of any Event of
Default, at the Beneficiary's option and in addition to any other remedy the
Beneficiary may have under the Loan Agreement, the Note, and the other Loan
Documents, the Beneficiary may, at its option, declare all sums secured by this
Deed of Trust immediately due and payable (except in the case of an Event of
Default under Subparagraph 22(a) above where no such exercise of an option shall
be necessary to the extent the effect of an "Event of Default" thereunder is
automatic under the terms of the Loan Agreement itself) and elect to have the
Trust Property sold in the manner provided herein. In the event the Beneficiary
elects to sell the Trust Property, the Beneficiary may execute or cause the
Trustee to execute a written notice of default and of election to cause the
Trust Property to be sold to satisfy the obligations hereof, and the Trustee
shall file such notice for record in the office of the County Recorder of the
county wherein the Trust Property is located. Beneficiary shall also deposit
with the Trustee the Note and all documents evidencing expenditures secured by
this Deed of Trust.
(c) Exercise of Power of Sale. Upon receipt of such notice
from the Beneficiary, the Trustee shall cause to be recorded, published and
delivered to the Grantor such Notice of Default and Election to Sell as then
required by Chapter 107 of the Nevada Revised Statutes ("NRS"), or any successor
statutes. The Trustee shall, without demand on the Grantor, after lapse of such
time as may be required by law and after recordation of such Notice of Default
and Election to Sell first give notice of the time and place of such sale, in
the manner provided by the laws of the State of Nevada for the sale of real
property under execution, and may from time to time postpone such sale by such
advertisement as it may deem reasonable, or without further advertisement, by
proclamation made to the persons assembled at the time and place previously
appointed and advertised for such sale, and on the day of sale so advertised, or
to which such sale may have been postponed, the Trustee may sell the Trust
Property so
18
advertised, at public auction, at the time and place specified in the notice,
either in the county in which the Trust Property, or any part thereof, to be
sold, is situated, or at the principal office of the Trustee located in Xxxxx
County, State of Nevada, in its discretion, to the highest cash bidder (subject
to the Beneficiary's right to credit upon the amount of the bid made therefor
the amount payable to it). The Trustee shall execute and deliver to the
purchaser a trustee's deed conveying the Trust Property so sold, but without any
covenant of warranty, express or implied. The recitals in the trustee's deed of
any matters or facts shall be conclusive proof of the truthfulness thereof. Any
person, including the Beneficiary, may bid at the sale, and Beneficiary shall
have the right to credit upon the amount of the bid made therefor the amount
payable to it out of the net proceeds of such sale. All other sales shall be, to
the extent permitted by applicable law, on a cash basis. The Trustee shall apply
the proceeds of the sale to payment of (a) the costs and expenses of exercising
the power of sale and of the sale, including the payment of the Trustee's, and
both the Trustee's and the Beneficiary's attorneys', fees and costs; (b) the
cost of any evidence of title procured in connection with such sale; (c) all
sums expended under the terms hereof in conjunction with any default provision
hereunder, not then repaid, with accrued interest at the rate then provided for
in the Note; (d) all sums then secured by this Deed of Trust, including interest
and principal on the Note; and (e) the remainder, if any, to the person or
persons legally entitled thereto, or the Trustee, in the Trustee's discretion,
may deposit the balance of such proceeds with the County Clerk of the county
wherein the Trust Property is located.
(d) Surrender of Possession. The Grantor shall surrender
possession of the Trust Property to the purchaser immediately after the sale of
the Trust Property as provided in Subsection 23(c) above, in the event such
possession has not previously been surrendered by Grantor.
(e) UCC Remedies.
(i) Notwithstanding anything to the contrary in Subparagraphs
23(c) and (d) above, the Beneficiary, with regard to all the UCC Collateral,
shall have the right to exercise, from time to time, any and all rights and
remedies available to the Beneficiary, as a secured party under the Nevada UCC
or the N.Y. UCC (hereinafter defined), as applicable, and any and all rights and
remedies available to the Beneficiary under any other applicable law. Upon
written demand from the Beneficiary, the Grantor shall, at the Grantor's
expense, assemble the UCC Collateral and make such available to the Beneficiary
at a reasonably convenient place designated by the Beneficiary. The Beneficiary
shall have the right to enter upon any premises where the UCC Collateral or
records pertaining to the UCC Collateral may be and take possession of the UCC
Collateral and records relating to the UCC Collateral. The Beneficiary may sell,
lease or otherwise dispose of any or all of the UCC Collateral and, after
deducting the reasonable costs and out of pocket expenses incurred by the
Beneficiary, including, without limitation, (a) reasonable attorneys' fees and
legal expenses, (b) transportation and storage costs, (c) advertising of sale of
the UCC Collateral, (d) sale commissions, (e) sales tax, (f) costs for improving
or repairing the UCC Collateral, and (g) costs for preservation and protection
of the UCC Collateral, apply the remainder to pay, or to hold as a reserve
against, the Obligations.
(ii) The rights and remedies of the Beneficiary upon the
occurrence of one or more Events of Default (whether such rights and remedies
are conferred by statute, by rule of
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law, by this Deed of Trust, the Loan Documents or otherwise) may be exercised by
the Beneficiary, either alternatively, concurrently, or consecutively in any
order. The exercise by the Beneficiary or the Trustee at the express direction
of the Beneficiary of any one or more of such rights and remedies shall not be
construed to be an election of remedies nor waiver of any other rights and
remedies the Beneficiary might have unless, and limited to the extent that, the
Beneficiary shall elect or so waive by an instrument in writing delivered to the
Trustee. Without limiting the generality of the foregoing, to the extent that
this Deed of Trust covers both real property and personal property, the
Beneficiary may, in the sole discretion of the Beneficiary, either
alternatively, concurrently or consecutively in any order:
(1) Proceed as to the Trust Property in accordance
with the Beneficiary's rights and remedies in respect to real property.
(2) Proceed as to the RP Collateral in accordance
with the Beneficiary's rights and remedies in respect to real property and
proceed as to the UCC Collateral in accordance with Beneficiary's rights and
remedies in respect to the personal property.
(iii) The Beneficiary may, in the sole discretion of the
Beneficiary, appoint the Trustee as the agent of the Beneficiary for the purpose
of disposition of the UCC Collateral in accordance with applicable law.
(iv) If the Beneficiary should elect to proceed as to the
Trust Property in accordance with Beneficiary's rights and remedies in respect
to real property:
(1) All the UCC Collateral may be sold, in the manner
and at the time and place provided in this Deed of Trust, in one lot, or in
separate lots consisting of any combination or combinations of the RP Collateral
and the UCC Collateral, as the Beneficiary may elect, in the sole discretion of
the Beneficiary.
(2) The Grantor acknowledges and agrees that a
disposition of the UCC Collateral in accordance with the Beneficiary's rights
and remedies in respect to real property, as hereinabove provided, is a
commercially reasonable disposition of the UCC Collateral.
(v) If the Beneficiary should elect to proceed as to the UCC
Collateral that is subject to the Nevada UCC pursuant to this Deed of Trust, in
accordance with the Beneficiary's rights and remedies in respect thereto, the
Beneficiary shall have all the rights and remedies conferred on a secured party
by NRS 104.9601 to NRS 104.9628, both inclusive.
(f) Foreclosure as a Mortgage. If an Event of Default occurs
hereunder, the Beneficiary shall have the option to foreclose this Deed of Trust
in the manner provided by law for the foreclosure of mortgages on real property
and the Beneficiary shall be entitled to recover in such proceedings all costs
and expenses incident thereto, including reasonable attorneys' fees and costs in
such amounts as shall be fixed by the court. Any such foreclosure may be a
complete or partial foreclosure.
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(g) Receiver. If an Event of Default occurs, the Beneficiary,
as a matter of right and without regard to, or the necessity to prove or
disprove, the value of the Trust Property or the adequacy of the security for
the sums secured by this Deed of Trust or the solvency or insolvency of the
Grantor or any other person liable for the payment of such sums, apply to any
court having jurisdiction to appoint a receiver or receivers of the Trust
Property and the Grantor hereby irrevocably consents to such appointment. Any
such receiver or receivers shall have all the usual powers and duties of a
receiver and shall continue as such and exercise all such powers until
completion of the sale of the Trust Property or the foreclosure proceeding,
unless the receivership is sooner terminated.
(h) Specific Performance. The Beneficiary or the Trustee may
institute an action, suit or proceeding in equity for the specific performance
of any of the provisions contained herein or in any of the other Loan Documents.
(i) Grantor's Right to Possession. To the extent permitted by
applicable law, the Beneficiary may enter upon the Premises, and exclude the
Grantor and its agents and servants wholly therefrom, without liability for
trespass, damages or otherwise, and take possession of all books, records and
accounts relating thereto and all other Trust Property, and the Grantor agrees
to surrender possession of the Trust Property and of such books, records and
accounts to the Beneficiary on demand after the happening of any Event of
Default and for so long as an Event of Default shall continue; and having and
holding the same may use, operate, manage, preserve, control and otherwise deal
therewith and conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers, without
interference from the Grantor; and upon each such entry and from time to time
thereafter may, at the expense of the Grantor and the Trust Property, without
interference by the Grantor and as the Beneficiary may deem advisable, (i)
insure or reinsure the Premises, (ii) make all necessary or proper repairs,
renewals, replacements, alterations, additions, betterments and improvements
thereto and thereon and (iii) in every such case in connection with the
foregoing have the right to exercise all rights and powers of the Grantor with
respect to the Trust Property, either in the Grantor's name or otherwise. For
the purpose of carrying out the provisions of this Paragraph 23(i), the Grantor
hereby constitutes and appoints the Beneficiary the true and lawful
attorney-in-fact of the Grantor, which appointment is irrevocable and shall be
deemed to be coupled with an interest, in the Grantor's name and stead, to do
and perform, from time to time, any and all actions necessary and incidental to
such purpose and does by these presents ratify and confirm any and all actions
of said attorney-in-fact in and with respect to the Trust Property.
(j) No Remedy Exclusive. No remedy conferred upon or reserved
to the Beneficiary under this Deed of Trust shall be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Deed of Trust or
any other Loan Document, or now or hereafter existing at law or in equity or by
statute. No delay or failure to exercise any right or power accruing upon any
Event of Default shall impair any such right or power or shall be construed to
be a waiver thereof, but any such right or power may be exercised from time to
time and as often as may be deemed expedient.
(k) Rights Upon Default. In making the Advances, the
Beneficiary has relied upon the rights available to the Beneficiary under this
Deed of Trust upon the occurrence of any
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Event of Default, including, without limitation, the rights to accelerate the
payment of any and all amounts secured by this Deed of Trust, to sell the Trust
Property encumbered by this Deed of Trust pursuant to the power of sale granted
hereunder, the right to foreclose this Deed of Trust as a mortgage, and the
right to have a receiver appointed. In addition to any other damages that might
be recoverable by the Beneficiary under the terms of this Deed of Trust, the
Grantor shall be liable for any damages incurred by the Beneficiary because the
Beneficiary is, for any reason, denied the opportunity to exercise the
Beneficiary's rights upon the occurrence of an Event of Default, including,
without limitation, such damages as are occasioned by depreciation of the Trust
Property, loss of use of the Trust Property by the Beneficiary, and all
opportunity costs incurred through the loss of use of any funds as would have
been received by the Beneficiary through exercise of the power of sale or
foreclosure, or the appointment of a receiver.
(l) Incorporation of Certain Nevada Covenants. The following
covenants, Nos. 1, 3, 4 (Default Rate), 6, 7 (reasonable), 8 and 9 of NRS
107.030, where not in conflict with the express provisions of any Loan Document,
are hereby adopted and made a part of this Deed of Trust. Upon any Event of
Default by the Grantor hereunder, the Beneficiary may (a) declare all sums
secured immediately due and payable without demand or notice or (b) have a
receiver appointed as a matter of right without regard to the sufficiency of
said property or any other security or guaranty and without any showing as
required by NRS 107.100. All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under this Deed of Trust or
afforded by law or equity and may be exercised concurrently, independently or
successively. The sale of said property conducted pursuant to Covenants Nos. 6,
7 and 8 of NRS 107.030 may be conducted either as to the whole of said property
or in separate parcels and in such order as the Trustee may determine.
24. Right to Cure Defaults.
If default in the performance of any of the covenants of the
Grantor herein occurs, the Beneficiary may, at its discretion, remedy the same
and for such purpose shall have the right to enter upon the Trust Property or
any portion thereof without thereby becoming liable to the Grantor or any person
in possession thereof holding under the Grantor. If the Beneficiary shall remedy
such a default or appear in, defend, or bring any action or proceeding to
protect its interest in the Trust Property or to foreclose this Deed of Trust or
collect the Obligations, the costs and expenses thereof (including reasonable
attorneys' fees to the extent permitted by law), with interest as provided in
this Paragraph 24, shall be paid by the Grantor to the Beneficiary upon demand.
All such costs and expenses incurred by the Beneficiary in remedying such
default or in appearing in, defending, or bringing any such action or proceeding
shall be paid by the Grantor to the Beneficiary upon demand, with interest
(calculated for the actual number of days elapsed on the basis of a 365-366 day
year) at a rate equal to two percentage points above the then applicable rate
under the Note (the "Default Rate"); provided, however, that the Default Rate
shall in no event exceed the maximum interest rate which the Grantor may by law
pay, for the period after notice from the Beneficiary that such costs or
expenses were incurred to the date of payment to the Beneficiary. In each such
event, such costs, expenses and amounts, together with interest thereon at the
Default Rate, shall be added to the indebtedness secured by this Deed of Trust
and shall be secured by this Deed of Trust.
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25. Non-Waiver.
The failure of the Beneficiary to insist upon strict
performance of any term of this Deed of Trust shall not be deemed to be a waiver
of any term of this Deed of Trust. The Grantor shall not be relieved of the
Grantor's obligation to pay the Obligations at the time and in the manner
provided therefor in the Note, this Deed of Trust or any other Loan Documents by
reason of (a) failure of the Beneficiary to comply with any request of the
Grantor to take any action to foreclose this Deed of Trust or otherwise enforce
any of the provisions hereof or of any other deed of trust, instrument or
document evidencing, securing or guaranteeing payment of the Obligations or any
portion thereof, (b) the release, regardless of consideration, of the whole or
any part of the Trust Property or any other security for the Obligations, or (c)
any agreement or stipulation between the Beneficiary and any subsequent owner or
owners of the Trust Property or other person extending the time of payment or
otherwise modifying or supplementing the terms of the Note or this Deed of Trust
or any other deed of trust, instrument or document evidencing, securing or
guaranteeing payment of the Obligations or any portion thereof, without first
having obtained the consent of the Grantor, and in the latter event, the Grantor
shall continue to be obligated to pay the Obligations at the times and in the
manner provided in the Note and this Deed of Trust, as so extended, modified and
supplemented, unless expressly released and discharged from such obligation by
the Beneficiary in writing. Regardless of consideration, and without the
necessity for any notice to or consent by the holder of any subordinate lien,
encumbrance, right, title or interest in or to the Trust Property, the
Beneficiary may release any person at any time liable for the payment of the
Obligations or any portion thereof or any part of the security held for the
Obligations and may extend the time of payment or otherwise modify the terms of
the Note, this Deed of Trust, the Loan Agreement or any other Loan Document
including, without limitation, a modification of the interest rate, without
impairing or affecting this Deed of Trust or the lien or the priority of this
Deed of Trust, as so extended and modified, as security for the Obligations over
any such subordinate lien, encumbrance, right, title or interest. The
Beneficiary may resort for the payment of the Obligations to any other security
held by the Beneficiary in such order and manner as the Beneficiary, in its
discretion, may elect. The Beneficiary may take action to recover the
Obligations, or any portion thereof, or to enforce any covenant hereof without
prejudice to the right of the Beneficiary thereafter to realize on the
collateral covered by this Deed of Trust. The Beneficiary shall not be limited
exclusively to the rights and remedies herein stated but shall be entitled to
every additional right and remedy now or hereafter afforded by law. The rights
of the Beneficiary under this Deed of Trust shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No act
of the Beneficiary shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision.
26. Liability.
If the Grantor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several.
27. Construction/Severability.
The proceeds of the Advances secured hereby were disbursed
from the state of New York, which state the parties agree has a substantial
relationship to the underlying
23
transaction embodied hereby, and in all respects, including, without limiting
the generality of the foregoing, matters of construction, validity and
performance. This Deed of Trust and the obligations arising hereunder shall be
governed by, and construed in accordance with, the laws of the state of New York
applicable to contracts made and performed in New York State and any applicable
laws of the United States of America, without regard to conflict of law rules
and principles. Notwithstanding such provisions, however, (i) matters respecting
title to the RP Collateral and the creation, perfection, priority and
foreclosure (including the nature of any interest in property that results
therefrom) of the liens on the RP Collateral shall be governed by, and construed
and enforced in accordance with, the internal law of the state of Nevada without
giving effect to the conflicts-of law rules and principals of such state; (ii)
the Grantor agrees that whether or not deficiency judgments are available under
the laws of the state of Nevada, after a foreclosure (judicial or nonjudicial)
of the Trust Property, or any portion thereof, or any other realization thereon
by the Beneficiary, the Beneficiary shall have the right to seek such a
deficiency judgment against the Grantor in other states or foreign
jurisdictions; and (iii) the Grantor agrees that, to the extent the Beneficiary
obtains a deficiency judgment in any other state or foreign jurisdiction, then
such party shall have the right to enforce such judgment in the state of Nevada,
as well as in other states or foreign jurisdictions.
28. Security Agreement and Fixture Filing.
(a) This Deed of Trust constitutes both a real property
mortgage or deed of trust and a "security agreement," within the meaning of the
Nevada UCC and the Uniform Commercial Code of the State of New York (the "N.Y.
UCC"), and the Trust Property includes both real and personal property and all
other rights and interest, whether tangible or intangible in nature, of the
Grantor in the Trust Property. The Grantor by executing and delivering this Deed
of Trust has granted to the Beneficiary, as security for the Obligations, a
security interest in the UCC Collateral. If an Event of Default shall occur
hereunder, the Beneficiary, in addition to any other rights and remedies which
it may have, shall have and may exercise immediately and without demand, any and
all rights and remedies granted to a secured party upon default under the Nevada
UCC, including, without limiting the generality of the foregoing, the rights set
forth under Subparagraph 23(e) above. Any notice of sale, disposition or other
intended action by the Beneficiary with respect to the UCC Collateral sent to
the Grantor in accordance with the provisions of this Deed of Trust at least
seven (7) days prior to the date of any such sale, disposition or other action,
shall constitute reasonable notice to the Grantor, and the method of sale or
disposition or other intended action set forth or specified in such notice shall
conclusively be deemed to be commercially reasonable within the meaning of the
Nevada UCC or the N.Y. UCC, as applicable, unless objected to in writing by the
Grantor within five (5) days after receipt by the Grantor of such notice. The
proceeds of any sale or disposition of the UCC Collateral, or any part thereof,
may be applied by the Beneficiary to the payment of the Obligations in such
order, priority and proportions as the Beneficiary in its discretion shall deem
proper. If any change shall occur in the Grantor's name, the Grantor shall
promptly cause to be filed at its own expense, new financing statements as
required under the Nevada UCC or the N.Y. UCC, as applicable, to replace those
on file in favor of the Beneficiary. With respect to UCC Collateral, conflicts
between this Paragraph 28 and/or Paragraph 23 above, on the one hand, and any
provision of the Security Agreement (as defined in the Loan Agreement), on the
other, shall be resolved in favor of the Security Agreement.
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(b) Certain of the Trust Property described in paragraphs (a)
through (l) of the granting clause of this Deed of Trust is or will become
"fixtures" (as that term is defined in the Nevada UCC ) on the Premises, and
this Deed of Trust, upon being filed for record with the Nevada Secretary of
State and in the real estate records of Xxxxx County, Nevada, shall be effective
and operate also as a financing statement filed as a fixture filing in
accordance with the applicable provisions of the Nevada UCC upon such of the
Trust Property that is or may become fixtures. In connection with this fixture
filing, the names and addresses of the Grantor, as the debtor, and the
Beneficiary, as the secured party, are as set forth in the introductory
paragraph of the first page of this Deed of Trust. The foregoing address of the
Beneficiary, as the secured party, is also the address from which any interested
party may obtain information concerning the security interest. The property
subject to this fixture filing is the Trust Property as described in paragraphs
(a) through (l) of the granting clauses set forth above. Portions of the
property subject to this fixture filing as identified in the first sentence of
this Paragraph 28(b) are or are to become fixtures related to the Premises
described in Exhibit A to this Deed of Trust.
29. Further Acts, etc.
The Grantor will, at the cost of the Grantor, and without
expense to the Beneficiary, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, deeds of trust, mortgages, assignments,
notices of assignments, transfers and assurances as the Beneficiary shall, from
time to time, demand for the better assuring, conveying, assigning, transferring
and confirming unto the Beneficiary the property and rights conveyed, assigned
and transferred hereunder or intended now or hereafter so to be, or which the
Grantor may be or may hereafter become bound to convey, assign or transfer to
the Beneficiary, or for carrying out the intention or facilitating the
performance of the terms of this Deed of Trust or for filing, registering or
recording this Deed of Trust and, on demand, will execute, deliver and/or file,
and hereby authorizes the Beneficiary to execute and/or file in the name of the
Grantor to the extent the Beneficiary may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments, to evidence
more effectively the interests in the Trust Property granted to the Beneficiary
hereunder.
30. Headings, etc.
The headings and captions of various paragraphs of this Deed
of Trust are for convenience of reference only and are not to be construed as
defined or limiting, in any way, the scope or intent of the provisions hereof.
31. Filing of Instrument, etc.
The Grantor forthwith upon the execution and delivery of this
Deed of Trust and thereafter, from time to time, will cause this Deed of Trust,
and any security instrument creating a lien or evidencing the lien hereof upon
the Trust Property and each instrument of further assurance to be filed,
registered or recorded in such manner and in such places as may be required by
any present or future law in order to publish notice of and fully to protect,
preserve and perfect the lien hereof upon, and the interest of the Beneficiary
in, the Trust Property. The Grantor will pay all filing, registration and
recording fees, and all expenses incident to the preparation, execution and
acknowledgment of this Deed of Trust, any deed of trust
25
supplemental hereto, any security instrument with respect to the Trust Property,
and any instrument of further assurance, and all Federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Deed of Trust, any deed of
trust supplemental hereto, any security instrument with respect to the Trust
Property or any instrument of further assurance. The Grantor shall hold harmless
and indemnify the Beneficiary, its successors and assigns, against any liability
incurred by reason of the imposition of any tax on the making and recording of
this Deed of Trust.
32. Usury Laws.
The Grantor and the Beneficiary stipulate and agree that it is
their common and overriding intent to contract in strict compliance with
applicable usury laws. In furtherance thereof, none of the terms of this Deed of
Trust shall ever be construed to create a contract to pay, as consideration for
the use, forbearance or detention of money, interest at a rate in excess of the
maximum rate permitted by applicable laws. The Grantor shall never be liable for
interest in excess of the maximum rate permitted by applicable laws. If, for any
reason whatever, such interest paid or received during the full term of the
applicable indebtedness produces a rate which exceeds the maximum rate permitted
by applicable laws, the Beneficiary shall credit against the principal of such
indebtedness (or, if such indebtedness shall have been paid in full, shall
refund to the payor of such interest) such portion of said interest as shall be
necessary to cause the interest paid to produce a rate equal to the maximum rate
permitted by applicable laws. All sums paid or agreed to be paid to the
Beneficiary for the use, forbearance or detention of money shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of the applicable indebtedness. The provisions of this
Paragraph 32 shall control all agreements, whether now or hereafter existing and
whether written or oral, between the Grantor and the Beneficiary.
33. Sole Discretion of The Beneficiary.
Except as may otherwise be expressly provided to the contrary,
wherever pursuant to this Deed of Trust, the Beneficiary exercises any right
given to it to consent or not consent, or to approve or disapprove, or any
arrangement or term is to be satisfactory to the Beneficiary, the decision of
the Beneficiary to consent or not consent, or to approve or disapprove, or to
decide that arrangements or terms are satisfactory or not satisfactory, shall be
in the sole and absolute discretion of the Beneficiary and shall be final and
conclusive.
34. Reasonableness.
If at any time the Grantor believes that the Beneficiary has
not acted reasonably in granting or withholding any approval or consent under
this Deed of Trust as to which approval or consent either (a) the Beneficiary
has expressly agreed to act reasonably, or (b) absent such agreement, applicable
law would nonetheless require the Beneficiary to act reasonably, then the
Grantor's sole remedy shall be to seek injunctive relief or specific
performance, and no action for monetary damages or punitive damages shall in any
event or under any circumstance be maintained by the Grantor against the
Beneficiary.
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35. Recovery of Sums Required To Be Paid.
The Beneficiary shall have the right from time to time to take
action to recover any sum or sums which constitute a part of the Obligations as
the same become due, without regard to whether or not the balance of the
Obligations shall be due, and without prejudice to the right of the Beneficiary
thereafter to bring an action of foreclosure, or any other action, for a default
or defaults by the Grantor existing at the time such earlier action was
commenced.
36. Actions and Proceedings.
The Beneficiary shall have the right to appear in and defend
any action or proceeding brought with respect to the Trust Property and to bring
any action or proceeding, in the name and on behalf of the Grantor, which the
Beneficiary, in its discretion, determines should be brought to protect the
Beneficiary's interest in the Trust Property.
37. Inapplicable Provisions.
If any term, covenant or condition of this Deed of Trust shall
be held to be invalid, illegal or unenforceable in any respect, this Deed of
Trust shall be construed without such provision.
38. Duplicate Originals.
This Deed of Trust may be executed in any number of duplicate
originals and each such duplicate original shall be deemed to constitute but one
and the same Instrument.
39. Certain Definitions.
Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided in this Deed of Trust, words used in this
Deed of Trust shall be used interchangeably in singular or plural form; the word
"Grantor" shall mean each Grantor and any subsequent owner or owners of the
Trust Property or any part thereof or interest therein; the word "Loan
Documents" shall have the meaning set forth in the Loan Agreement; the word
"person" shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, or other entity;
the words "Trust Property" shall include any portion of the Trust Property or
interest therein; and the word "Obligations" shall mean all sums secured by this
Deed of Trust; the word "default" shall mean the occurrence of any default by
the Grantor or other person in the observance or performance of any of the
terms, covenants or provisions of this Deed of Trust on the part of the Grantor
or such other person to be observed or performed without regard to whether such
default constitutes or would constitute upon notice or lapse of time, or both,
an Event of Default under this Deed of Trust; and words such as "herein" or
"hereunder" shall be deemed to refer to this Deed of Trust as a whole and not
merely to the sentence or paragraph in which they appear. References to "the
lien of this Deed of Trust" or words to that effect are also references to this
Deed of Trust. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice versa.
27
40. Waiver of Notice.
The Grantor shall not be entitled to any notices of any nature
whatsoever from the Beneficiary except with respect to matters for which this
Deed of Trust specifically and expressly provides for the giving of notice by
the Beneficiary to the Grantor, and the Grantor hereby expressly waives the
right to receive any notice from the Beneficiary with respect to any matter for
which this Deed of Trust does not specifically and expressly provide for the
giving of notice by the Beneficiary to the Grantor.
41. No Oral Change.
This Deed of Trust may only be modified, amended or changed by
an agreement in writing signed by the Grantor, the Beneficiary and, to the
extent required by applicable law, the Trustee, and may only be released,
discharged or satisfied of record by an agreement in writing signed by the
Beneficiary and, to the extent required by applicable law, the Trustee. No
waiver of any term, covenant or provision of this Deed of Trust shall be
effective unless given in writing by the Beneficiary and if so given by the
Beneficiary shall only be effective in the specific instance in which given. No
course of dealing between the parties, no usage of trade and no extrinsic or
parol evidence may be used to supplement or modify the terms of this Deed of
Trust. The Grantor acknowledges that the Note, this Deed of Trust, the Loan
Agreement and the other Loan Documents set forth the entire agreement and
understanding of the Grantor and the Beneficiary with respect to the Obligations
secured hereby and that no oral or other agreements, understanding,
representation or warranties exist with respect to the Obligations secured
hereby other than those set forth in the Note, this Deed of Trust, the Loan
Agreement and the other Loan Documents.
42. Absolute and Unconditional Obligation.
The Grantor acknowledges that the Grantor's obligation to pay
the Obligations in accordance with the Note, this Deed of Trust and the other
Loan Documents is and shall at all times continue to be absolute and
unconditional in all respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature whatsoever
which might otherwise constitute a defense to the payment of the Obligations in
accordance with the Note, this Deed of Trust or the other Loan Documents, and
the Grantor absolutely, unconditionally and irrevocably waives any and all right
to assert any defense, setoff, counterclaim or crossclaim of any nature
whatsoever with respect to the payment of the Obligations in accordance with the
provisions of the Note, this Deed of Trust and the other Loan Documents or
otherwise with respect to the Obligations secured hereby in any action or
proceeding brought to collect the Obligations, or any portion thereof, or to
enforce, the trust or foreclose and realize upon the Beneficiary's interest in
the Trust Property created by this Deed of Trust.
43. Waiver of Trial by Jury.
The Grantor hereby irrevocably and unconditionally waives, and
the Beneficiary by its acceptance of the Note irrevocably and unconditionally
waives, any and
28
all rights to trial by jury in any action, suit or counterclaim arising in
connection with, out of or otherwise relating to this Deed of Trust, the Note or
the other Loan Documents.
44. Waiver of Statutory Rights.
The Grantor shall not and will not apply for or avail itself
of any appraisement, valuation, stay, extension or exemption laws, or any
so-called "Moratorium Laws," now existing or hereafter enacted, in order to
prevent or hinder the enforcement or foreclosure of this Deed of Trust, but
hereby waives the benefit of such laws to the full extent that the Grantor may
do so under applicable law. The Grantor for itself and all who may claim through
or under it waives any and all right to have the property and estates comprising
the Trust Property marshaled upon any foreclosure of the lien of this Deed of
Trust and agrees that the Trust Property may be sold as an entirety or in
separate parcels and in such order as may be determined by the Beneficiary, or
by any court in which any action or suit hereunder may be pending. The Grantor
hereby waives for itself and all who may claim through or under it, and to the
full extent the Grantor may do so under applicable law, any and all rights of
redemption from sale under any order or decree of foreclosure of this Deed of
Trust or granted under any statute now existing or hereafter enacted.
45. Brokerage.
The Grantor covenants and agrees that no brokerage commission
or other fee, commission or compensation is to be paid by the Beneficiary on
account of the Advances or any other obligations secured by this Deed of Trust
and the Grantor agrees to indemnify the Beneficiary against any claims for any
of the same.
46. Indemnity.
Anything in this Deed of Trust, the Note, the Loan Agreement
or the other Loan Documents to the contrary notwithstanding, the Grantor shall
indemnify and hold the Beneficiary harmless and defend the Beneficiary at the
Grantor's sole cost and expense against any loss or liability, cost or expense
(including, without limitation, title insurance premiums and charges and
reasonable attorneys' fees and disbursements of the Beneficiary's counsel,
whether in-house staff, retained firms or otherwise), and all claims, actions,
procedures and suits arising out of or in connection with (a) any ongoing
matters arising out of the deed of trust transaction contemplated hereby, this
Deed of Trust, and/or the Trust Property, including, but not limited to, all
costs of reappraisal of the Trust Property or any part thereof, whether required
by law, regulation, the internal policies of the Beneficiary or any governmental
or quasi-governmental authority, (b) any amendment to, or restructuring of this
Deed of Trust and (c) any and all lawful action that may be taken by the
Beneficiary in connection with the enforcement of the provisions of this Deed of
Trust, whether or not suit is filed in connection with the same, or in
connection with the Grantor, any guarantor of the Advances and/or any partner,
member, joint venturer or shareholder thereof becoming a party to a voluntary or
involuntary federal or state bankruptcy, insolvency or similar proceeding. The
foregoing indemnity shall not apply to matters caused by the gross negligence,
willful misconduct or bad faith of the Beneficiary. All sums expended by the
Beneficiary shall be payable within five (5) days after written demand and,
until reimbursed
29
by the Grantor pursuant hereto, shall be deemed additional principal of the
Obligations and secured hereby and shall bear interest at the Default Rate.
47. Relationship.
The relationship of the Beneficiary to the Grantor hereunder
is strictly and solely that of lender and obligor and grantor and beneficiary,
and nothing contained in the Note, this Deed of Trust or any other Loan Document
is intended to create, or shall in any event or under any circumstance be
construed as creating, a partnership, joint venture, tenancy-in-common, joint
tenancy or other relationship of any nature whatsoever between the Beneficiary
and the Grantor other than as set forth in this Paragraph 47.
48. Loan Agreement.
The Grantor shall fully and faithfully observe and perform all
of the terms, covenants, conditions, provisions and agreements contained in the
Loan Agreement.
49. Prior Leasehold Deed of Trust.
The lien of this Deed of Trust is subject and subordinate to
the lien of (i) that certain Leasehold Deed of Trust dated August 23, 2002 made
by the Grantor to the Trustee for the benefit of the Beneficiary and recorded on
August 23, 2002 in the Official Records of Xxxxx County, Nevada (the "Recorder's
Office") as Instrument No. 00054, as amended by that certain Agreement of
Modification of Leasehold Deed of Trust dated October 25, 2002 and recorded in
the Recorder's Office on October 25, 2002 as Instrument No. 00231, and by an
Agreement of Second Modification of Leasehold Deed of Trust dated December 23,
2002 and recorded in the Recorder's Office on December 23, 2002 as Instrument
No. 00764, (ii) that certain Leasehold Deed of Trust dated December 23, 2002,
made by the Grantor to the Trustee for the benefit of the Beneficiary and
recorded on December 23, 2002 in the Recorder's Office as Instrument No. 00765,
and (iii) that certain Leasehold Deed of Trust dated January 30, 2004, made by
the Grantor to the Trustee for the benefit of the Beneficiary and recorded on
January 30, 2004 in the Recorder's Office as Instrument No. 04359.
50. Intentionally Omitted.
51. The Subject Lease.
(a) The Grantor shall: (i) pay all rents, additional rents and
other sums required to be paid by the Grantor as lessee under and pursuant to
the provisions of the Subject Lease, (ii) diligently perform and observe all of
the terms, covenants and conditions of the Subject Lease on the part of the
Grantor, as lessee thereunder, to be performed and observed, unless such
performance or observance shall be waived or not required in writing by the
lessor under the Subject Lease, to the end that all things shall be done which
are necessary to keep unimpaired the rights of the Grantor, as lessee, under the
Subject Lease, (iii) promptly notify the Beneficiary in writing of any default
by the Grantor or lessor under the Subject Lease in the performance or
observance of any of the terms, covenants or conditions on the part of,
respectively, the Grantor or such lessor to be performed or observed under the
Subject Lease, (iv) promptly notify the Beneficiary of the giving of any notice
by the lessor under the Subject
30
Lease to the Grantor (other than notices customarily sent on a regular basis)
and of any notice noting or claiming any default by the Grantor in the
performance or observance of any of the terms, covenants or conditions of the
Subject Lease on the part of the Grantor, as lessee thereunder, to be performed
or observed, and deliver to the Beneficiary a true copy of each such notice, (v)
promptly notify the Beneficiary in writing of any request made by either party
to the Subject Lease for arbitration proceedings pursuant to the Subject Lease
and of the institution of any arbitration proceedings, as well as of all
proceedings thereunder, and promptly deliver to the Beneficiary a copy of the
determination of the arbitrators in each such arbitration proceeding, it being
acknowledged and agreed that the Beneficiary shall have the right to participate
in such arbitration proceedings in association with the Grantor or on its own
behalf as an interested party, (vi) furnish to the Beneficiary, within fifteen
(15) days after demand, proof of payment of all items which are required to be
paid by the Grantor pursuant to the Subject Lease, and (vii) not consent to the
subordination of the Subject Lease to any deed of trust with respect to the fee
interest of the lessor under the Subject Lease in the Trust Property except such
as may be agreed to by the Beneficiary.
(b) The Grantor, shall not, without the prior written consent
of the Beneficiary, surrender the leasehold estate created by the Subject Lease
or terminate or cancel the Subject Lease or modify, change, supplement, alter or
amend the Subject Lease, in any material respect, either orally or in writing,
and the Grantor hereby assigns to the Beneficiary, as further security for the
payment of the Obligations and for the performance and observance of the terms,
covenants and conditions of this Deed of Trust, all of the rights, privileges
and prerogatives of the Grantor, as lessee under the Subject Lease, to surrender
the leasehold estate created by the Subject Lease or to terminate, cancel,
modify, change, supplement, alter or amend the Subject Lease in any material
respect, and any such surrender of the leasehold estate created by the Subject
Lease or termination, cancellation, modification, change, supplement, alteration
or amendment of the Subject Lease without the prior written consent of the
Beneficiary shall be voidable at the Beneficiary's option, and of no force and
effect.
(c) Supplementing the provisions of Paragraph 51(b), it is
understood and agreed that the Grantor shall not, without the Beneficiary's
prior written consent, elect to treat the Subject Lease as terminated under
Section 365(h)(1) of the Bankruptcy Code. Any such election made without the
Beneficiary's prior written consent shall be void. The Grantor hereby
unconditionally assigns, transfers and set over to the Beneficiary all of the
Grantor's claims and rights to the payment of damages arising under the
Bankruptcy Code from any rejection by the lessor under the Subject Lease. The
Beneficiary shall have the right to proceed in its own name or in the name of
the Grantor in respect of any claim, suit, action or proceeding relating to the
rejection of the Subject Lease, including, without limitation, the right to file
and prosecute, to the exclusion of the Grantor, any proofs of claim, complaints,
motions, applications, notices and other documents, in any case in respect of
such lessor under the Bankruptcy Code. This assignment constitutes a present,
irrevocable and unconditional assignment of the foregoing claims, rights and
remedies, and shall continue in effect until all of the Obligations secured by
this Deed of Trust shall have been satisfied and discharged in full. Any amounts
received by the Beneficiary as damages arising out of the rejection of the
Subject Lease as aforesaid shall be applied first to all costs and expenses of
the Beneficiary (including, without limitation, attorneys' fees) incurred in
connection with the exercise of any of its rights or remedies under this
Paragraph 51 and then shall be applied against the Obligations in such order,
priority and
31
proportion as the Beneficiary shall determine. If any action, motion or notice
shall be commenced or filed in respect of the Grantor, as lessee under the
Subject Lease, or all or any portion of the Trust Property in connection with
any case under the Bankruptcy Code, the Grantor shall give the Beneficiary
prompt written notice thereof and the Beneficiary shall have the option, to the
exclusion of the Grantor, exercisable upon notice from the Beneficiary to the
Grantor, to conduct and control any such litigation with counsel of the
Beneficiary's choice. The Beneficiary may proceed in its own name or in the name
of the Grantor in connection with any such litigation, and the Grantor agrees to
execute any and all powers, authorizations, consents and other documents
required by the Beneficiary in connection therewith. The Grantor shall, upon
demand, pay to the Beneficiary all costs and expenses (including, without
limitation, attorneys' fees) paid or incurred by the Beneficiary in connection
with the prosecution or conduct of any such proceedings. Any such costs or
expenses not paid by the Grantor as aforesaid shall be secured by this Deed of
Trust and shall be added to the Obligations. The Grantor shall not commence any
action, suit, proceeding or case, or file any application or make any motion, in
respect of the Subject Lease in any such case under the Bankruptcy Code without
the prior written consent of the Beneficiary. The Grantor shall, immediately
after obtaining knowledge thereof, notify the Beneficiary and its counsel, by
telecopy to the numbers set forth in the Loan Agreement, of any filing by or
against the lessor under the Subject Lease of a petition under the Bankruptcy
Code. The Grantor shall thereafter forthwith give written notice of such filing
to the Beneficiary, setting forth the date of such filing, the court in which
the petition was filed and the relief sought therein. The Grantor shall promptly
deliver to the Beneficiary, following receipt, any and all notices, summonses,
pleadings, applications and other documents received by the Grantor in
connection with any such petition and any proceedings relating thereto.
(d) If the Grantor shall default in the performance or
observance of any term, covenant or condition of the Subject Lease on the part
of the Grantor, as lessee thereunder, to be performed or observed, then, without
limiting the generality of the other provisions of this Deed of Trust and
without waiving or releasing the Grantor from any of its obligations hereunder,
the Beneficiary shall have the right, subject to the last sentence of this
Paragraph 51(d), but shall be under no obligation, to pay any sums and to
perform any act or take any action as may be appropriate to cause all of the
terms, covenants and conditions of the Subject Lease on the part of the Grantor,
as lessee thereunder, to be performed or observed to be promptly performed or
observed on behalf of the Grantor, to the end that the rights of the Grantor in,
to and under the Subject Lease shall be kept unimpaired and free from default.
If the Beneficiary shall make any payment or perform any act or take action in
accordance with the preceding sentence, the Beneficiary will notify the Grantor
of the making of any such payment, the performance of any such act, or the
taking of any such action. All sums so paid by the Beneficiary and all costs and
expenses incurred by the Beneficiary in connection with the performance of any
such act shall be paid by the Grantor to the Beneficiary upon demand with
interest at the Default Rate from the date of the payment or incurrence thereof,
and the same shall be deemed to be secured by this Deed of Trust and shall be a
lien on the Trust Property prior to any right, title to, interest in or claim
upon the Trust Property attaching subsequent to the lien of this Deed of Trust.
In any such event, subject to the rights, if any, of sublessees and other
occupants under the Leases, the Beneficiary and any person designated by the
Beneficiary shall have, and are hereby granted, the right to enter upon the
Trust Property at any time and from time to time for the purpose of taking any
such action. If the lessor under the Subject Lease shall deliver to the
Beneficiary a copy of
32
any notice of default sent by said lessor to the Grantor, as lessee under the
Subject Lease, or otherwise notify the Beneficiary of such a default, any such
notice shall provide full protection to the Beneficiary for any action taken or
omitted to be taken by the Beneficiary, in good faith, in reliance thereon and,
in any case, irrespective of whether or not an Event of Default shall have
occurred hereunder.
(e) The Grantor hereby irrevocably appoints the Beneficiary
its true and lawful attorney-in-fact in its name or otherwise to do any and all
acts and to execute any and all documents which in the reasonable opinion of the
Beneficiary may be necessary or desirable to preserve any rights of the Grantor
in, to or under the Subject Lease, or any occupancy lease, license, franchise or
concession, including, without limitation, the right (but not the obligation) to
cure any defaults of the Grantor as lessee under the Subject Lease, preserve any
rights of the Grantor whatsoever in respect of any part of the Trust Property or
to execute an extension or renewal of the Subject Lease as hereinafter set
forth. Subject to the Grantor's rights to require the same under the Subject
Lease, the Grantor shall, within five (5) days of request by the Beneficiary,
request from the lessor under the Subject Lease such certificates of estoppel
with respect to compliance by the Grantor with the terms of the Subject Lease as
may be requested by the Beneficiary and shall thereafter use reasonable efforts
to obtain such certificates of estoppel from such lessor.
(f) The generality of the provisions of this Paragraph 51
relating to the Subject Lease shall not be limited by other provisions of this
Deed of Trust or any other agreement between the Beneficiary and the Grantor,
setting forth particular obligations of the Grantor which are also required of
the Grantor as tenant under the Subject Lease.
(g) If the Grantor shall become the fee owner of the Premises
and/or the Improvements, the Trust Property shall be deemed to include all
right, title and interest of the Grantor (as fee owner) in and to the Premises,
the Improvements and the remaining Trust Property, and this Deed of Trust shall
be spread accordingly.
(h) If a deed of trust shall be placed against the fee
interest in the Premises and for the Improvements of the lessor under the
Subject Lease, the Grantor shall not subordinate the Subject Lease to the lien
of any such fee deed of trust.
52. New Subject Lease with The Beneficiary.
If the Subject Lease shall be terminated prior to the
scheduled expiration of its term due to a default or event of default
thereunder, and if pursuant to any provision of the Subject Lease or otherwise
pursuant to an agreement between the Beneficiary and such lessor, the
Beneficiary or its designee shall acquire from the lessor under the Subject
Lease a new lease of the Premises and the Improvements, the Grantor shall have
no right, title or interest in or to such new lease or the leasehold estate
created thereby, or renewal privileges therein contained.
53. No Merger of Fee and Leasehold Estates.
So long as any portion of the Obligations shall remain unpaid,
and unless the Beneficiary shall otherwise consent, the fee title to the
Premises and the Improvements and the
33
leasehold estate therein created pursuant to the provisions of the Subject Lease
shall not merge, but shall always be kept separate and distinct, notwithstanding
the union of such estates in the Grantor or in any other person, by purchase,
operation of law or otherwise. If the Beneficiary shall acquire the fee title to
the Premises and the Improvements and the leasehold estate therein created
pursuant to the provisions of the Subject Lease, by foreclosure of this Deed of
Trust or otherwise, such estates shall not merge as a result of such acquisition
and shall remain separate and distinct for all purposes after such acquisition
unless and until the Beneficiary shall elect to merge such estates.
54. The Trustee.
(a) Successor Trustee. The Trustee may resign by the giving of
notice of such resignation in writing addressed to the Beneficiary, or may be
removed at any time, with or without cause, by an instrument in writing duly
executed by the Beneficiary. The Beneficiary shall concurrently give notice of
any such resignation or removal to the Grantor. In case of the death,
resignation or removal of the Trustee, a successor Trustee may be appointed by
the Beneficiary without other formality than an appointment and designation in
writing unless otherwise required by applicable law. Such appointment and
designation will be full evidence of the right and authority to make the same
and of all facts therein recited, and upon the making of any such appointment
and designation, this Deed of Trust will vest in the named successor the Trustee
all the right, title and interest of the Trustee in the Trust Property, and said
successor will thereupon succeed to all the rights, powers, privileges,
immunities and duties hereby conferred upon the Trustee. All references herein
to the Trustee will be deemed to refer to the Trustee or trustees from time to
time acting hereunder.
(b) Trustee's Powers. At any time, or from time to time
without liability therefor and without notice, upon written request of the
Beneficiary and presentation of this Deed of Trust for endorsement, and without
affecting the personal liability of any person for payment of the indebtedness
secured hereby or the effect of this Deed of Trust upon the remainder of the
Trust Property, the Trustee may (i) reconvey any part of the Trust Property,
(ii) consent in writing to the making of any map or plat thereof, (iii) join in
granting any easement thereon, or (iv) join in any extension agreement or any
agreement subordinating the lien or charge hereof.
(c) Request for Notice. The Grantor hereby requests that a
copy of any notice of default and a copy of any notice of sale hereunder be
mailed to the Grantor at the address set forth in the heading of this Deed of
Trust.
(d) Full Reconveyance by the Trustee. To the extent that the
Trustee's signature is necessary on any full reconveyance of this Deed of Trust
then, upon written request of the Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed of Trust to the Trustee
for cancellation and retention (or disposal in accordance with applicable law),
and upon payment by the Grantor of the Trustee's fees, the Trustee shall
reconvey to the Grantor, or to the person or persons legally entitled thereto,
without warranty, any portion of the Trust Property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof. The grantee in any reconveyance may be described as
the person or persons legally entitled thereto.
34
(e) Indemnity. The Grantor shall indemnify the Trustee against
all claims, actions, liabilities, judgments, costs, attorneys' fees or other
charges of whatsoever kind or nature made against or incurred by the Trustee,
and arising out of the performance by the Trustee of the duties of the Trustee
hereunder (except those arising from the Trustee's grossly negligent acts). The
foregoing indemnity shall not terminate upon release, foreclosure or other
termination of this Deed of Trust.
(f) The Beneficiary Action in Lieu of The Trustee.
Notwithstanding anything contained in this Paragraph 54 or elsewhere in this
Deed of Trust to the contrary, the Beneficiary may take any actions (other than
the exercise of the power of sale) which the Trustee is authorized to take in
all cases where trustees are not required by custom, practice or law to take
such actions on behalf of a beneficiary under a deed of trust.
55. NRS 106.300-400. This Deed of Trust secures future advances under
the Loan Agreement. The maximum principal amount secured hereunder at any time
is $3,000,000. This Deed of Trust is intended to be governed by NRS 106.300-400.
As set forth in the Loan Agreement, the Beneficiary reserves the right to not
make any further Advances upon receipt of a notice of termination from the
Grantor contemplated by said statute.
35
IN WITNESS WHEREOF, the Grantor has duly executed this Deed of Trust
the day and year first above written.
S&W OF LAS VEGAS, L.L.C.
By: The Xxxxx & Wollensky Restaurant
Group, Inc., Sole Member
By:/s/ Xxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 20th day of July in the year 2004 before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxx X. Xxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx X. Xxxxx
------------------------------------
Notary Public
EXHIBIT A
---------
Legal Description
All that real property situated in the County of Xxxxx, State of Nevada, bounded
and described as follows:
The South 120 feet of the West Half (W 1/2) of the Northwest Quarter (NW 1/4) of
the Southwest Quarter (SW 1/4);
AND
The North 10 feet of the West One-Half (W 1/2) of the Southwest Quarter (SW 1/4)
of the Southwest Quarter (SW 1/4) of Section 21, Township 21 South, Range 61
East, M.D.B. & M.
EXCEPTING THEREFROM all State and County roads and highways.
EXHIBIT A-1
-----------
(Description of Subject Lease)
Lease With An Option to Purchase, dated February 9, 1998, as
modified by a First Amendment to Lease Agreement, dated May 8, 1998 and by a
Second Amendment to Lease Agreement dated April 29, 2003; a memorandum of which
was recorded pursuant to an instrument entitled Memorandum of Lease with an
Option to Purchase recorded on February 12, 1998 in Book 980212 as Instrument
No. 00979 in the official records of Xxxxx County, Nevada and also recorded on
February 17, 1998 in Book 980217 as Instrument Xx. 00000.
Xxxxxxxx'x Xxxxxx Xx. 000-00-000-000
X&X XX XXX XXXXX, L.L.C., Grantor
TO FIRST AMERICAN TITLE COMPANY OF NEVADA, INC., Trustee
FOR THE BENEFIT OF
XXXXXX XXXXXXX XXXX XXXXXX
COMMERCIAL FINANCIAL SERVICES, INC., Beneficiary
_____________________________________
LEASEHOLD DEED OF TRUST
( NEVADA )
_____________________________________
Dated: As of July __, 2004
Location: 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx
RECORD AND RETURN TO:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
