EXHIBIT 10.05
APN NO.: 162-21-201-006
RECORDING REQUESTED BY AND RECORDED
COUNTERPARTS SHOULD BE RETURNED TO:
XXXXX, XXXXX & XXXXX
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES,
FIXTURE FILING AND SECURITY AGREEMENT
made by and between
ALADDIN GAMING, LLC,
a Nevada limited-liability company,
AS TRUSTOR,
and
XXXXXXX TITLE OF NEVADA,
a Nevada corporation,
AS TRUSTEE,
for the benefit of
THE BANK OF NOVA SCOTIA,
in its capacity as Administrative Agent,
AS BENEFICIARY
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THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
AND IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS OF XXXXX COUNTY,
NEVADA UNDER THE NAME OF ALADDIN GAMING, LLC AS DEBTOR AND THE BANK OF NOVA
SCOTIA, AS ADMINISTRATIVE AGENT, AS SECURED PARTY.
THIS INSTRUMENT IS A CONSTRUCTION MORTGAGE AS THAT TERM IS DEFINED IN
SECTION 104.9313(1)(C) OF THE NEVADA REVISED STATUTES AND SECURES AN OBLIGATION
INCURRED FOR THE CONSTRUCTION OF AN IMPROVEMENT UPON LAND.
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FIRST AMENDMENT TO DEED OF TRUST,
ASSIGNMENT OF RENTS AND LEASES, FIXTURE FILING AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO DEED OF TRUST, ASSIGNMENT OF RENTS AND
LEASES, FIXTURE FILING AND SECURITY AGREEMENT, dated as of July ___,
2000 (this "Amendment"), is made by and between ALADDIN GAMING, LLC, a Nevada
limited-liability company (Aladdin Gaming, LLC, together with all successors
and assigns of the Trust Estate (as hereinafter defined), ("Trustor") whose
address is 000 Xxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000, Attention: Xxxx Xxxxxx,
and XXXXXXX TITLE OF NEVADA, a Nevada corporation, whose address is 0000
Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, Attention: Xxxxx
X. Xxxxx, as Trustee ("Trustee"), for the benefit of THE BANK OF NOVA SCOTIA,
a Canadian chartered bank ("Beneficiary"), whose address is: 000 Xxxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx
Xxxxxxxxxx, in its capacity as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the Trustor is on the date of delivery hereof the owner of a
fee simple interest in the parcel of land described in EXHIBIT A attached hereto
(the "Land");
WHEREAS, the Borrower, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent have heretofore entered into (w)
that certain Credit Agreement (the "CA") dated as of February 26, 1998, (x) that
certain First Amendment to Credit Agreement (the "First Amendment to Credit
Agreement") dated as of January 29, 1999, (y) that certain Second Amendment to
Credit Agreement (the "Second Amendment to Credit Agreement") dated as of April
5, 1999, effective as of March 10, 1999 and (z) that certain Third Amendment to
Credit Agreement (the "Third Amendment to Credit Agreement") dated as of June 2,
2000;
WHEREAS, the Trustor executed and delivered to the Beneficiary a Deed
of Trust, Assignment of Rents and Leases, Fixture Filing and Security Agreement
dated as of February 26, 1998 (the "Original Deed of Trust;" the Original Deed
of Trust as amended by this Amendment and as hereafter amended is hereinafter
sometimes referred to as the "Deed of Trust"), which Original Deed of Trust was
recorded with the Xxxxx County Recorder in Book No. 98030 of official records as
document number 00006;
WHEREAS, the Borrower has requested, and the Lenders have approved
the execution and delivery of the Fourth Amendment to Credit Agreement dated as
of July __, 2000 (the "Fourth Amendment to Credit Agreement"), which Fourth
Amendment to Credit Agreement, among other things, increases the maximum
principal amount of the Credit Extensions from Four Hundred Ten Million Dollars
($410,000,000.00) to Four Hundred Fifty-Three Million Seven Hundred Fifty
Thousand Dollars ($453,750,000.00) (the Credit Agreement, as amended by the
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First Amendment to Credit Agreement, the Second Amendment to Credit Agreement
and the Third Amendment to Credit Agreement shall be referred to herein as the
"Credit Agreement"); and
WHEREAS, (i) as a material inducement for the Lenders to enter into
the Fourth Amendment to Credit Agreement (ii) to secure the payment and
performance of the Trustor's obligations under the Credit Agreement and the
other Loan Documents, and (iii) to secure the payment and performance of the
Obligations, Trustor has agreed to enter into this Amendment with Trustee.
NOW, THEREFORE, in consideration of good and valuable consideration
given by the Trustor to the Beneficiary, the receipt and sufficiency of which
are hereby acknowledged, the Trustor and the Beneficiary agree as follows:
1. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Original Deed of Trust.
2. Clause (1) of the Granting Clause is amended by deleting Four
Hundred Ten Million Dollars ($410,000,000) and substituting in place thereof
Four Hundred Fifty-Three Million Seven Hundred Fifty Thousand Dollars
($453,750,000.00) or so much thereof as may be advanced by the Lenders pursuant
to the Loan Documents.
3. Granting clause (B) on page 6 of the Deed of Trust shall be
amended to include the parenthetical clause (other than the Specified Equipment
and the Gaming Equipment) after the word "Improvements" in the second line
thereof.
4. Granting clause (D) on page 6 of the Deed of Trust shall be
amended to include the parenthetical clause (other than the Specified Equipment
and the Gaming Equipment) after the word "Collateral" in the second line
thereof.
5. All references in the Deed of Trust and the other Loan Documents
to the Credit Agreement shall mean and refer to the Credit Agreement between
Trustor and Beneficiary dated as of February 26,1998, as amended by the First
Amendment to Credit Agreement dated as of January 29, 1999, as further amended
by the Second Amendment to Credit Agreement dated as of April 5, 1999, effective
as of March 10, 1999, as further amended by the Third Amendment to Credit
Agreement dated as June 2, 2000, as further amended by the Fourth Amendment to
Credit Agreement dated as of July __, 2000 and as further amended, restated,
supplemented, modified or amended and restated from time to time. All references
in the Credit Agreement to the Deed of Trust shall mean and refer to the
Original Deed of Trust as amended by this Amendment, as the same may be further
amended, restated, supplemented, modified or amended and restated from time to
time.
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6. The Land described in EXHIBIT A hereto shall remain subject to the
lien, charge and encumbrance of the Deed of Trust, as hereby amended and
increased, and nothing herein contained or done pursuant hereto shall affect or
be construed to affect the liens, charges or encumbrances of the Deed of Trust,
or the priority thereof over other liens, charges or encumbrances, or to release
or affect the liability of any party or parties who may now or hereafter be
liable under or on account of the Note and/or the Deed of Trust.
7. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
8. All notices and other communications provided to any of the
parties hereto shall be in writing and addressed or transmitted to such party as
set forth in the Credit Agreement.
9. This Amendment shall also be construed under and governed by the
laws of the State of New York; provided, however, that (i) the terms and
provisions of this Deed of Trust pertaining to the priority, perfection,
enforcement or realization by Beneficiary of its respective rights and remedies
under this Amendment with respect to the Trust Estate shall be governed and
construed and enforced in accordance-with the internal laws of the State of
Nevada (the "State") without giving effect to the conflicts-of-law rules and
principles of the State; (ii) Trustor agrees that to the extent deficiency
judgments are available under the laws of the State after a foreclosure
(judicial or nonjudicial) of the Trust Estate, or any portion thereof, or any
other realization thereon by Beneficiary or any Lender under the Credit
Agreement, Beneficiary or such Lender, as the case may be, shall have the right
to seek such a deficiency judgment against Trustor in the State; and (iii)
Trustor agrees that if Beneficiary or any Lender under the Credit Agreement
obtains a deficiency judgment in another state against Trustor, then Beneficiary
or such Lender, as the case may be, shall have the right to enforce such
judgment in the State to the extent permitted under the laws of the State, as
well as in other states. Nothing contained in this Section shall be deemed to
expand the limitations set forth in Section 10.9 of the Credit Agreement.
10. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this First
Amendment to Deed of Trust or affecting the validity or enforceability of such
provision in any other jurisdiction.
11. This Amendment may be executed by the parties hereto in several
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
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12. Except as amended pursuant to the terms of this Amendment, all of
the terms, provisions and conditions of the Original Deed of Trust shall remain
in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust,
Assignment of Rents and Leases and Security Agreement to be effective as of the
day and year first above written.
TRUSTOR: ALADDIN GAMING, LLC,
a Nevada limited-liability company,
as Trustor
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
TRUSTEE: XXXXXXX TITLE OF NEVADA,
a Nevada corporation, as Trustee
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Executive
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TRUSTOR NOTARIZATION
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
This instrument was acknowledged before me on July 27, 2000 by Xxxxxx
X. Xxxxxxx, as of Aladdin Gaming, LLC, a Nevada limited-liability company.
/s/ Xxxx Xxxxx
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NOTARY PUBLIC
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TRUSTEE NOTARIZATION
STATE OF NEVADA )
) ss:
COUNTY OF XXXXX )
This instrument was acknowledged before me on July 27, 2000 by X. X.
Xxxxx, as Executive Vice President of Xxxxxxx Title of Nevada, a Nevada
corporation.
/s/ Xxxxxx Haze
-----------------------------
NOTARY PUBLIC
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EXHIBIT A
DESCRIPTION OF THE LAND
Please see attached legal description.
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