Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration Statement 181 972K
2: EX-1.1 Purchase Agreement 93 331K
3: EX-3.1 Certificate of Formation 1 22K
12: EX-3.10 Amended and Restated Operating Agreement 11 53K
13: EX-3.11 Articles of Organization 3 27K
14: EX-3.12 Certificate of Amendment of the Art. of Org. 2 25K
15: EX-3.13 Operating Agreement 14 59K
4: EX-3.2 Limited Liability Company Agreement 5 40K
5: EX-3.3 Certificate of Incorporation 2 25K
6: EX-3.4 By-Laws 15 81K
7: EX-3.5 Amended and Restated Articles of Organization 3 28K
8: EX-3.6 Operating Agreement 14 68K
9: EX-3.7 Certificate of Formation 3 27K
10: EX-3.8 Certificate of Amendment to Certif. of Formation 3 25K
11: EX-3.9 Certificate of Amendment to Certif. of Formation 4 27K
16: EX-4.1 Indenture 106 405K
25: EX-4.10 Deed of Trust 44 160K
26: EX-4.11 Intercreditor Agreement 15 75K
27: EX-4.12 Loan and Security Agreement 98 386K
28: EX-4.13 General Continuing Guaranty 11 57K
29: EX-4.14 Guarantor Security Agreement 17 76K
30: EX-4.15 First Preferred Vessel Mortgage 16 79K
31: EX-4.16 Deed of Trust 51 193K
32: EX-4.17 Deed of Trust 56 214K
33: EX-4.18 Deed of Trust 51 181K
34: EX-4.19 Stock Pledge Agreement 15 67K
17: EX-4.2 Registration Rights Agreement 37 126K
35: EX-4.20 Guarantor Trademark Security Agreement 12 54K
36: EX-4.21 Subordination of First Referred Vessel Mortgage 2 27K
37: EX-4.22 Subordination Agreement 7 38K
38: EX-4.23 Subordination Agreement 7 38K
39: EX-4.24 Subordination Agreement 8 38K
18: EX-4.3 Guarantee 2 25K
19: EX-4.4 Pledge and Security Agreement 48 186K
20: EX-4.5 Pledge Agreement 23 110K
21: EX-4.6 Trademark Security Agreement 4 31K
22: EX-4.7 First Preferred Vessel Mortgage 22 97K
23: EX-4.8 Deed of Trust 47 165K
24: EX-4.9 Deed of Trust 50 175K
40: EX-5.1 Opinion of Latham & Watkins 3 30K
41: EX-5.2 Opinion of Schreck Brignone Godfrey 2 27K
42: EX-5.3 Opinion of Watkins Ludlam Winter & Stennis, P.A. 3 30K
43: EX-5.4 Opinion of Robinson Waters & O'Dorisio 2 27K
44: EX-10.1 Employment Agreement 1 24K
58: EX-10.10 Lease Agreement 17 60K
59: EX-10.10.1 Amendment to Lease Agreement 7 39K
68: EX-10.10.10 Second Amendment to Masonic Ground Lease 7 38K
69: EX-10.10.11 Lease Agreement and Estoppel Certificate 17 65K
70: EX-10.10.12 Assignment of Ground Lease 10 45K
60: EX-10.10.2 Assignment 7 36K
61: EX-10.10.3 Supplemental Agreement 3 28K
62: EX-10.10.4 Assignment 7 36K
63: EX-10.10.5 Assignment 4 32K
64: EX-10.10.6 Articles of Amendment 11 47K
65: EX-10.10.7 Assignment 5 30K
66: EX-10.10.8 Amendment to Masonic Lodge Ground Lease 21 73K
67: EX-10.10.9 Lease Agreement 11 49K
71: EX-10.11 Lease 16 52K
72: EX-10.11.1 Amendments to Ham Ground Lease 23 77K
73: EX-10.11.2 Lease Agreement 6 39K
74: EX-10.11.3 Second Amendment to Ham Ground Lease 12 49K
75: EX-10.11.4 Assignment of Ground Lease 10 43K
76: EX-10.12 Agreement Regarding Ground Leases 8 36K
77: EX-10.13 Agreement Regarding Ground Leases 6 34K
45: EX-10.2 Employment Agreement 8 51K
46: EX-10.3 Amended and Restated Management Agreement 6 38K
47: EX-10.4 Expense Reimbursement Agreement 3 28K
48: EX-10.5 Member Agreement 7 42K
49: EX-10.6 Assignment of Membership 1 23K
50: EX-10.7 Contribution and Assignment Agreement 3 28K
51: EX-10.8 Lease Agreement 37 90K
52: EX-10.8.1 Assigment of Ground Lease 7 35K
53: EX-10.9 Lease Agreement 27 75K
54: EX-10.9.1 Amendment to Kramer Ground Lease 20 66K
55: EX-10.9.2 Lease Amendment 10 47K
56: EX-10.9.3 Second Amendment to the Kramer Ground Lease 6 37K
57: EX-10.9.4 Assignment of Ground Lease 11 43K
78: EX-12.1 Computation of Ratio of Earnings to Fixed Charges 1 22K
79: EX-21.1 List of Subsidiaries 1 21K
80: EX-23.5 Consent of Pricewaterhousecoopers LLP 1 22K
81: EX-23.6 Consent of Deloitte & Touche LLP 1 23K
82: EX-25.1 Statement of Eligibility 6 36K
83: EX-99.1 Form of Letter of Transmittal 11 76K
84: EX-99.2 Form of Notice of Guaranteed Delivery 5 37K
85: EX-99.3 Form of Letter to Dtc Participants 2 25K
86: EX-99.4 Form of Letter to Beneficial Owners 4 30K
87: EX-99.5 Guidelines for Cert. of Taxpayer Id Number 4± 32K
88: EX-99.6 Form of Exchange Agent Agreement 10 47K
EX-4.8 — Deed of Trust
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EXHIBIT 4.8
Prepared By and Upon
Recordation Return To: INDEXING INSTRUCTIONS:
THE BANK OF NEW YORK _____ QUARTER(S) [OR BLOCKS
101 Barclay Street - 21W
New York, New York 10286 _____ OF _______ LOCATED IN],
Attention: Corporate Trust Administration
Phone:Phone: (212) 896-7223 SECTION ____, TOWNSHIP ____,
RANGE ______ CITY OF _______
TUNICA COUNTY, MISSISSIPPI
_____ QUARTER(S) [OR BLOCKS
_____ OF _______ LOCATED IN],
SECTION ____, TOWNSHIP ____,
RANGE ______ CITY OF _______
TUNICA COUNTY, MISSISSIPPI
--------------------------------------------------------------------------------
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH FINANCING STATEMENT
AND ASSIGNMENT OF RENTS
BARDEN MISSISSIPPI GAMING, LLC,
as Trustor,
JIM B. TOHILL,
as Trustee,
and
THE BANK OF NEW YORK,
as Beneficiary
Dated as of December 6, 2001
SOME OF THE PERSONAL PROPERTY CONSTITUTING A PORTION OF THE
MORTGAGED PROPERTY IS OR IS TO BE AFFIXED TO THE PROPERTIES
DESCRIBED IN EXHIBIT A HERETO
THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD, AMONG
OTHER PLACES, IN THE REAL ESTATE RECORDS
THIS DEED OF TRUST COVERS AFTER-ACQUIRED PROPERTY
THIS DEED OF TRUST SECURES A LINE OF CREDIT TO BE USED FOR
BUSINESS OR COMMERCIAL PURPOSES
DEED OF TRUST, SECURITY AGREEMENT AND
FIXTURE FILING WITH ASSIGNMENT OF RENTS
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING WITH ASSIGNMENT
OF RENTS (this "Deed of Trust") is made as of the 6th day of December, 2001 by
Barden Mississippi Gaming, LLC, a Mississippi limited liability company
("Trustor"), whose principal place of business is located at 163 Madison Avenue,
Suite 2000, Detroit, Michigan 48226, in favor of JIM B. TOHILL, who principal
place of business is located at c/o Watkins, Ludlam, Winter & Stennis, P.A., 633
North State Street, Jackson, Mississippi 39202 ("Trustee"), for the benefit of
The Bank of New York, a New York banking corporation, as Collateral Agent
("Beneficiary"), whose principal place of business is located at 101 Barclay
Street - 21W, New York, New York 10286, in its capacity as trustee under the
"Indenture" for the ratable benefit of the "Holders" (as each such term is
hereinafter defined).
THE MAXIMUM AMOUNT OF PRINCIPAL TO BE SECURED HEREBY IS $152,632,000 OF EACH OF
THE "SUBSIDIARY GUARANTEE OBLIGATIONS" (as hereinafter defined); PROVIDED THAT
IN NO EVENT SHALL THE AGGREGATE PRINCIPAL BALANCE SECURED HEREBY, EXCLUSIVE OF
INTEREST, FEES AND EXPENSES, FOR THE BENEFIT OF THE HOLDERS EXCEED $152,632,000.
R E C I T A L S
A. Pursuant to that certain Indenture, dated as of December 6, 2001 (as
supplemented and otherwise amended from time to time, the "Indenture"), by and
among Majestic Investor Holdings, LLC, a Delaware limited liability company (the
"Company"), Majestic Investor Capital Corp., a Delaware corporation ("Capital"
and, together with the Company, the "Issuers"), the Subsidiary Guarantors
(defined therein), and Beneficiary, as Trustee thereunder (in such capacity, the
"Indenture Trustee"), the Issuers will issue 11.653% Senior Secured Notes due on
or before 2007 in an aggregate principal amount of up to $152,632,000
(collectively, the "Notes"). Unless the context otherwise requires, all
capitalized terms used and not otherwise defined herein shall have the meanings
ascribed thereto in the Indenture. Attached hereto as Schedule 1.1 is a list of
certain definitions for which reference should be made to the Indenture.
B. Pursuant to a guarantee executed and delivered pursuant to the
Indenture (as amended from time to time, the "Subsidiary Guarantee"), the
Subsidiary Guarantors (including Trustor) have guaranteed the obligations of the
Issuers under the Notes, the Indenture and the other Security Documents to which
the Issuers are parties.
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C. Pursuant to the Indenture, the Subsidiary Guarantee of Trustor is
required to be secured by, among other things, this Deed of Trust.
D. The parties acknowledge that certain provisions of this Deed of Trust
may be subject to the laws, rules and regulations ("Applicable Gaming Laws") of
the Gaming Authority of the State of Mississippi.
W I T N E S S E T H:
IN CONSIDERATION OF THE FOREGOING PREMISES AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, SUBJECT TO APPLICABLE GAMING LAWS, TRUSTOR DOES HEREBY IRREVOCABLY
GRANT, BARGAIN, SELL, TRANSFER, CONVEY AND ASSIGN to Trustee, its successors and
assigns, IN TRUST, WITH POWER OF SALE, for the benefit and security of
Beneficiary, as agent and representative for the equal and ratable benefit of
the Holders, but subject to Permitted Liens, the following (but excluding in
each and every case all Excluded Assets), whether now owned or hereafter
acquired:
GRANTING CLAUSE ONE
[LAND]
All of Trustor's right, title and interest in the real property, located
in the County of Tunica, State of Mississippi, described in Exhibit A attached
hereto and by this reference incorporated herein (the "Land"), together with all
and singular the tenements, hereditament, rights, reversions, remainders,
development rights, privileges, benefits, easements (in gross or appurtenant),
rights-of-way, gores or strips of land, streets, ways, alleys, passages, sewer
rights, water courses, water rights and powers, and all appurtenances whatsoever
and claims or demands of Trustor at law or in equity, in any way belonging,
benefitting, relating or appertaining to the Land, the airspace over the Land,
the "Improvements" (as hereinafter defined), or both, or which hereinafter shall
in any way belong, relate or be appurtenant thereto;
GRANTING CLAUSE TWO
[IMPROVEMENTS]
TOGETHER WITH, any and all structures, buildings, facilities and
improvements of every nature whatsoever now or hereafter erected on the Land,
including, but not limited to, the "Fixtures" (as hereinafter defined)
(collectively, the "Improvements") (the Land and Improvements are referred to
collectively as the "Property");
2
GRANTING CLAUSE THREE
[RENTS, ETC.]
TOGETHER WITH, all rents, income, security or similar deposits (to the
full extent allowed by Applicable Laws), including, without limitation,
receipts, issues, royalties, earnings, products or proceeds, profits,
maintenance, license and concession fees and other revenues to which Trustor may
now or hereafter be entitled, including, without limitation, all rights to
payment for hotel room occupancy by hotel guests, which includes any payment or
monies received or to be received in whole or in part, whether actual or deemed
to be, for the sale of services or products in connection therewith and/or in
connection with such occupancy, advance registration fees by hotel guests, tour
or junket proceeds and deposits for conventions and/or party reservations
(collectively, the "Rents"), subject to the revocable license hereinafter given
to Trustor to collect and apply such Rents;
GRANTING CLAUSE FOUR
[LEASES, INCLUDING DEPOSITS AND ADVANCE RENTALS]
TOGETHER WITH, (a) all estate, right, title and interest of Trustor in,
to and under any and all leases, subleases, lettings, licenses, concessions,
operating agreements, management agreement, franchise agreements and all other
agreements affecting or covering the Property or any portion thereof now or
hereafter existing or entered into, together with all amendments, extensions and
renewals of any of the foregoing, (b) all right, title, claim, estate and
interest of Trustor thereunder, including, without limitation, all claims of the
lessor thereunder, letters of credit, guarantees or security deposits (to the
full extent allowed by Applicable Laws), advance rentals, and any and all
deposits or payments of similar nature and (c) the right to enforce against any
tenants thereunder and otherwise any and all remedies under any of the
foregoing, including Trustor's right to evict from possession any tenant
thereunder or to retain, apply, use, draw upon, pursue, enforce or realize upon
any guaranty thereof; to terminate, modify, or amend any such agreement; to
obtain possession of, use, or occupy, any of the real or personal property
subject to any such agreement; and to enforce or exercise, whether at law or in
equity or by any other means, all provisions of any such agreement and all
obligations of the tenants thereunder based upon (i) any breach by such tenant
thereunder (including any claim that Trustor may have by reason of a
termination, rejection, or disaffirmance of such agreement pursuant to any
Bankruptcy Law), and (ii) the use and occupancy of the premises demised, whether
or not pursuant to the applicable agreement (including any claim for use and
occupancy arising under landlord-tenant law of the State of Mississippi or any
Bankruptcy Law);
3
GRANTING CLAUSE FIVE
[OPTIONS TO PURCHASE, ETC.]
TOGETHER WITH, all right, title and interest of Trustor in and to all
options and other rights to purchase or lease the Property or any portion
thereof or interest therein, if any, and any greater estate in the Property
owned or hereafter acquired by Trustor;
GRANTING CLAUSE SIX
[FIXTURES]
TOGETHER WITH, all right, title and interest of Trustor in and to all
"Fixtures." Fixtures means any and all "fixtures" as such term is defined in
Article 9 of the Applicable UCC and to the fullest extent allowed by Applicable
Laws, fixtures and all other equipment and machinery now or at any time
hereafter owned by Trustor and located or included in or on or appurtenant to
the Property or the Vessel and used in connection therewith and which are or
become so related to the real property encumbered hereby that an interest arises
in them under real estate law, including, without limitation, all docks, piers,
barges, vessels, marinas and other structures to which boats and vessels may be
moored; machinery, equipment (including, without limitation, pipes, furnaces,
conveyors, drums, fire sprinklers and alarm systems, and air conditioning,
heating, refrigerating, electronic monitoring, stoves, ovens, ranges,
dishwashers, disposals, food storage, food processing (including restaurant
fixtures), trash and garbage removal and maintenance equipment), elevators,
office equipment, all built-in tables, wall-beds, wall-safes, built-in furniture
and installation, doorstops, vaults, motors, dumb-waiters, computers, mirrors,
screens, chairs, chaise lounges, hot tubs, swimming pool heaters, beauty and
barber equipment, maintenance supplies used in connection with the Land or
Vessel, mantels, screens, plumbing, bathtubs, sinks, basins, faucets, all
laundry, kitchen, restaurant and athletic equipment, washers, dryers, planters,
desks, sofas, shelves, lockers and cabinets, all safes, furnishings, appliances
(including, without limitation, food warming and holding equipment, iceboxes,
refrigerators, fans, heaters, water heaters and incinerators), rugs, carpets and
other floor coverings, draperies and drapery rods and brackets, awnings, window
shades, venetian blinds, curtains, lamps, chandeliers and other lighting
fixtures, trade fixtures, telephone, television and other communications
equipment, visual and electronic surveillance systems and transportation
systems, all specifically designed installations and furnishings, all furniture,
furnishings and personal property of every nature whatsoever, and equipment,
appliances or other goods for the exclusion of vermin or insects, or for the
collection of dust, refuse or garbage; provided, however, that Fixtures shall
not include Excluded Assets;
4
GRANTING CLAUSE SEVEN
[CONDEMNATION AWARDS, ETC.)
TOGETHER WITH, all the estate, interest, right, title and other claim or
demand, which Trustor now has or may hereafter acquire in any and all awards,
payments or other consideration made for the taking by eminent domain, or by any
proceeding or purchase in lieu thereof, of the whole or any part of the
Property, including, without limitation, any awards, payments or other
consideration resulting from a change of grade of streets and for severance
damages;
GRANTING CLAUSE EIGHT
[INSURANCE PROCEEDS]
TOGETHER WITH, all the estate, interest, right, title and other claim or
demand which Trustor now has or may hereafter acquire with respect to the
proceeds of insurance in effect with respect to all or any part of the Property,
together with all interest thereon and the right to collect and receive the
same;
GRANTING CLAUSE NINE
[CLAIMS FOR DAMAGES, ETC.]
TOGETHER WITH, all the estate, interest, right, title and other claim or
demand which Trustor now has or may hereafter acquire against anyone with
respect to any damage to all or any part of the Property, including, without
limitation, damage arising from any defect in or with respect to the design or
construction of all or any part of the Improvements and damage resulting
therefrom;
GRANTING CLAUSE TEN
[DEPOSITS, ADVANCE PAYMENTS AND REFUNDS OF INSURANCE, UTILITIES, ETC.]
TOGETHER WITH, all deposits or other security or advance payments
including rental payments made by or on behalf of Trustor to others, and all
refunds made by others to Trustor, with respect to (i) insurance policies
relating to all or any part of the Property, (ii) utility service for all or any
part of the Property, (iii) cleaning, maintenance, repair, or similar services
for all or any part of the Property, (iv) refuse removal or sewer service for
all or any part of the Property, (v) rental of equipment, if any, used in the
operation, maintenance or repair by or on behalf of Trustor of all or any part
of the Property and (vi) parking or similar services or rights afforded to all
or any part of the Property;
GRANTING CLAUSE ELEVEN
5
[WATER RIGHTS, ETC.]
TOGETHER WITH, all water rights, water stock, water permits and other
rights to the use of water that are now or that may be hereinafter used in
connection with the said Property, or any part thereof, or any improvements or
appurtenances thereto;
GRANTING CLAUSE TWELVE
[MINERALS, ETC.]
TOGETHER WITH, all oil and gas and other mineral rights, if any, in or
pertaining to the Land and all royalty, leasehold and other rights of Trustor
pertaining thereto;
GRANTING CLAUSE THIRTEEN
[ACCESSIONS, ETC.]
TOGETHER WITH, all extensions, improvements, betterments, renewals,
substitutes for and replacements of, and all additions, accessions, and
appurtenances to, any of the foregoing that Trustor may subsequently acquire,
and all conversions of any of the foregoing; Trustor agrees that all property
hereafter acquired by Trustor and required by the Indenture, this Deed of Trust
or any other Security Document to be subject to the Lien and/or security
interests created by this Deed of Trust shall forthwith upon the acquisition
thereof by Trustor be subject to the Lien and security interests of this Deed of
Trust as if such property were now owned by Trustor and were specifically
described in this Deed of Trust and granted hereby or pursuant hereto, and the
Beneficiary is hereby authorized to receive any and all such property as and for
additional security for the Subsidiary Guarantee Obligations (as hereinafter
defined);
GRANTING CLAUSE FOURTEEN
[VESSEL]
TOGETHER WITH, the whole of the following named and described vessel and
appurtenances (the "Vessel") to wit:
[Download Table]
OFFICIAL
NAME NUMBER TYPE
---- -------- ----
FITZGERALDS TUNICA 262757 Barge
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TOGETHER WITH, all of the following now owned or hereafter acquired by
Trustor or in which Trustor has any rights or interest and now or hereafter
located in or on, or attached to, or used or intended to be used or which are
now or may hereafter be appropriated for use on or in connection with the
operation of the Vessel and the business being conducted or which may be
conducted thereon, or in connection with any construction being conducted or
which may be conducted thereon: boilers, engines, machinery, masts, spars,
boats, cables, motors, tools, anchors, chains, booms, cranes, rigs, pumps, pipe,
tanks, tackle, apparel, furniture, fixtures, rigging, supplies, fittings and
gaming machinery, equipment and accessories relating to the Vessel and the
gaming operations now or hereafter conducted thereon, including but not limited
to communication systems, visual and electronic surveillance systems and
transportation systems, tools, utensils, food and beverage, liquor, uniforms,
linens, housekeeping and maintenance supplies, fuel, all gaming equipment and
devices, financial equipment, computer equipment, calculators, adding machines,
video game, slot machines and other gaming devices, and any other electronic
equipment of every nature used in connection with the operation of the Vessel
and the business conducted thereon, all machinery, equipment, engines,
appliances and fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of dust,
refuse or garbage, all wall-beds, wall safes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumb-waiters, awnings, window shades, Venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, drapes, drapery rods and brackets,
mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing, bathtubs,
sinks, basins, pipes, faucets, water closets, laundry equipment, washers,
dryers, ice-boxes and heating units, all kitchen and restaurant equipment,
including but not limited to silverware, dishes, menus, cooking utensils,
stoves, refrigerators, ovens, ranges, dishwashers, disposals, water heaters,
incinerators, furniture, fixtures and furnishings, all cocktail lounge supplies,
including but not limited to bars, glassware, bottles and tables and stools or
chairs used in connection with the Vessel, all chaise lounges, hot tubs,
swimming pool heaters and equipment, and all other recreational equipment
(computerized and otherwise) including cards, dice, and gaming chips and tokens,
beauty and barber equipment, and maintenance supplies used in connection with
the Vessel, all specifically designed installations and furnishings, and all
furniture, furnishings and personal property of every nature whatsoever; and all
extensions, additions, accessions, improvements, betterments, renewals,
substitutions, and replacements to any of the foregoing, all of which (to the
fullest extent permitted by Applicable Laws) shall be conclusively deemed
appurtenances to the Vessel, and all other appurtenances to the Vessel
appertaining or belonging, whether now owned or hereafter acquired, whether on
board or not at any time of determination, and all additions, improvements and
replacements hereafter made in or to the Vessel and all proceeds of any of the
foregoing, including without limitation, any claim for compensation, purchase
price reimbursement or award for a requisition pursuant to Section 3.13 of that
certain First Preferred Vessel Mortgage executed by Trustor of even date
7
herewith (the "Vessel Mortgage") and any charter hire or other compensation
resulting from a requisition pursuant to Section 3.14 of the Vessel Mortgage.
Trustor and Beneficiary acknowledge that significant structures, improvements,
additions, equipment and other appurtenances may be added to the Vessel after
the execution of this Deed of Trust, and Trustor specifically affirms and agrees
that all such appurtenances to the Vessel shall be subject to this Deed of
Trust.
The entire estate, property and interest hereby conveyed to Trustee
pursuant to Granting Clauses One through Fourteen, inclusive (other than
Excluded Assets), may hereafter be referred to as the "Trust Estate."
FOR THE PURPOSE OF SECURING:
A. the due and punctual payment and performance of any and all present
and future obligations and liabilities of Trustor of every type or description
to Beneficiary, arising under or in connection with the Subsidiary Guarantee,
whether for principal of, or premium, if any, or interest on the Notes,
expenses, indemnities or other amounts (including attorneys' fees and expenses)
(collectively, the "Subsidiary Guarantee Obligations"); and
B. the due and punctual payment and performance of any and all present
and future obligations and liabilities of Trustor of every type or description
to Beneficiary, arising under or in connection with this Deed of Trust or any
other Security Document, including for reimbursement of amounts permitted to be
advanced or expended by Beneficiary (i) to satisfy amounts required to be paid
by Trustor under this Deed of Trust or any other Security Document, together
with interest thereon to the extent provided, or (ii) to protect the Trust
Estate, together with interest thereon to the extent provided; and
C. all future advances pursuant to the Indenture or any other Security
Document,
in each case whether due or not due, direct or indirect, joint and/or several,
absolute or contingent, voluntary or involuntary, liquidated or un1iquidated,
determined or undetermined, now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished and later increased,
created or incurred, whether or not arising after the commencement of a
proceeding under the Bankruptcy Code (including post-petition interest) and
whether or not allowed or allowable as a claim in any such proceeding (all
obligations and liabilities described herein, including, without limitation, the
Subsidiary Guarantee Obligations, are collectively referred to herein as the
"Secured Obligations").
The maturity date of the Secured Obligations is November 30, 2007.
8
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR HEREBY COVENANTS
AND AGREES AS FOLLOWS:
ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
SECTION 1.1. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"APPLICABLE GAMING LAWS" has the meaning set forth in Recital D.
"APPLICABLE LAWS" has the meaning set forth in Section 3.7.
"APPLICABLE UCC" means the Uniform Commercial Code (as amended from time
to time) of the State of Mississippi.
"BENEFICIARY" has the meaning set forth in the Preamble.
"ENVIRONMENTAL CLAIM" shall mean any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (a) the presence, or release into the
environment, of any Hazardous Material at any location, whether or not owned or
operated by Trustor or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"ENVIRONMENTAL DAMAGES" means all claims, judgments, damages, losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs and expenses of investigation and defense of any claim, whether or not
such is ultimately defeated, and of any settlement or judgment, of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including, without limitation, reasonable attorneys' fees,
charges and disbursements (including, without limitation, costs of appeal), and
consultants' fees, any of which are actually incurred at any time as a result of
the existence or alleged existence of Hazardous Materials (as hereinafter
defined) upon, about or beneath the Property or migrating or threatening to
migrate to or from the Property, or the existence or alleged existence of a
violation of Environmental Laws (as hereinafter defined) pertaining to the
Property regardless of whether the existence of such Hazardous Materials or the
violation of Environmental Laws arose prior to the present ownership or
operation of the Property, and including, without limitation:
(i) damages for personal injury, or injury to property or natural
resources occurring upon or off of the Property, foreseeable or unforeseeable,
9
including, without limitation, lost profits, consequential damages, the cost of
demolition and rebuilding of any improvements on real property, interest and
penalties including, but not limited to, claims brought by or on behalf of
employees of Trustor, with respect to which Trustor waives, for the benefit of
Beneficiary only, any immunity to which it may be entitled under any industrial
or workers' compensation laws;
(ii) reasonable fees actually incurred for the services of
attorneys, consultants, contractors, experts, laboratories and all other costs
incurred in connection with the investigation or remediation of such Hazardous
Materials or violation of Environmental Laws including, but not limited to, the
preparation of any feasibility studies or reports or the performance of any
cleanup, remedial, removal, abatement, containment, closure, restoration or
monitoring work required by any federal, state or local governmental agency or
political subdivision, or reasonably necessary to make full economic use of the
Property or any other property or otherwise expended in connection with such
conditions, and including, without limitation, any reasonable attorneys' fees,
charges and disbursements (including, without limitation, costs of appeal)
actually incurred in enforcing this Deed of Trust or collecting any sums due
hereunder; and
(iii) liability to any Person to indemnify such Person for actual
costs incurred in good faith in connection with the items referenced in
subparagraphs (i) and (ii) hereof.
"ENVIRONMENTAL LAWS" means the common law and all applicable present and
future statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals, plans, authorizations, concessions, franchises and similar
items, of all a governmental agencies, departments, commissions, boards, bureaus
or instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
injunctions, judgments and orders relating to the environment, including,
without limitation:
(i) all requirements, including, but not limited to, those
relating or pertaining to (A) record keeping, reporting, disclosing, notifying,
licensing, permitting, investigation and remediation of emissions, discharges,
releases or threatened releases of Hazardous Materials or other chemical
substances, pollutants, contaminants or hazardous or toxic substances, materials
or wastes whether solid, liquid or gaseous in nature, into the environment
(including, without limitation, ambient air, surface water, groundwater or land
surface or subsurface strata), (B) the manufacture, processing, distribution,
use, generation, treatment, storage, disposal, transport or handling of chemical
substances, materials or wastes, whether solid, liquid or gaseous in nature,
including without limitation, Hazardous Materials or (C) underground storage
tanks and related piping, and emissions, discharges, releases or threatened
releases of Hazardous Materials or other chemical substances, pollutants,
10
contaminants or hazardous or toxic substances, materials or wastes whether
solid, liquid or gaseous in nature therefrom; and
(ii) all other requirements pertaining to the preservation or
protection of the environment and the mitigation of adverse effects thereon and
the health and safety of employees or the public with respect to Hazardous
Materials.
"FIXTURES" has the meaning set forth in Granting Clause Six.
"HAZARDOUS MATERIALS" means chemicals, pollutants, contaminants, wastes,
toxic or hazardous materials, substances or wastes, petroleum and petroleum
products, asbestos or asbestos-containing materials, polychlorinated biphenyls
(PCBs), lead or lead-based paints or materials, or radon.
"IMPOSITIONS" means any and all (i) real estate and personal property
taxes and other taxes and assessments, water and sewer rates and charges levied
or assessed upon or with respect to the Property, and any and all other
governmental charges (including any penalties and other charges imposed by any
Gaming Authority) and any interest or costs or penalties with respect thereto,
in each case whether general, special, ordinary or extraordinary, foreseen or
unforeseen, of any kind and nature whatsoever that at any time prior to or after
the execution hereof may be assessed, levied, imposed, or become a lien upon the
Property or the Rents, but excluding taxes on Trustor's income or operating
revenues; (ii) charges for any easement or agreement maintained for the benefit
of the Property and (iii) other charges, expenses, payments or assessments of
any nature, if any, which are or may be assessed, levied, imposed or become a
lien upon the Property or the Rents, including mechanics and other Liens
permitted by Section 4.12 of the Indenture.
"IMPOUND ACCOUNT" means the account that Trustor may be required to
maintain pursuant to Section 4.6.2. of this Deed of Trust for the deposit of
amounts required to pay Impositions and insurance premiums.
"IMPROVEMENTS" has the meaning set forth in Granting Clause Two.
"INDEMNITEES" has the meaning set forth in Section 11.2.7.
"INSURANCE POLICIES" has the meaning set forth in Section 4.4.
"INTANGIBLE PROPERTY" means any and all intangible personal property,
including, without limitation, (a) the rights to use all names and all
derivations thereof now or hereafter used by Trustor in connection with the
Land, the Vessel or the Improvements, including, without limitation, the name
"Fitzgeralds Tunica" and any variations thereof, together with the goodwill
associated therewith, and all names, logos, and designs used by Trustor, or in
connection with the Land or the Vessel or the Improvements or in which Trustor
has rights, with the exclusive
11
right to use such names, logos and designs wherever they are now or hereafter
used in connection with the Land or the Vessel or the Improvements, and any and
all other trade names, trademarks or service marks, whether or not registered,
now or hereafter used in the operation of the Land or the Vessel or the
Improvements, including, without limitation, any interest as a licensee or
franchisee, and, in each case, together with the goodwill associated therewith;
(b) maps, plans, specifications, surveys, studies, tests, reports, data and
drawings relating to the development of the Land, the Vessel or the Improvements
and the construction of the Improvements, including, without limitation, all
marketing plans, feasibility studies, soils tests, design contracts and all
contracts and agreements of Trustor relating thereto and all architectural,
structural, mechanical and engineering plans and specifications, studies, data
and drawings prepared for or relating to the development of the Land, the Vessel
or the Property or the construction, renovation or restoration of any of the
Improvements or the extraction of minerals, sand, gravel or other valuable
substances from the Land; (c) any and all books, records, customer lists
(including lists or information derived from or related to the "player tracking
system" described within the definition of "Tangible Property"), concession
agreements, supply or service contracts, licenses, permits, governmental
approvals (to the extent such licenses, permits and approvals may be pledged
under Applicable Laws), signs, goodwill, casino and hotel credit and charge
records, supplier lists, checking accounts, safe deposit boxes (excluding the
contents of such deposit boxes owned by Persons other than Trustor and its
Subsidiaries), cash, instruments, Chattel Papers, documents, unearned premiums,
deposits, refunds, including but not limited to income tax refunds, prepaid
expenses, rebates, tax and insurance escrow and impound accounts, if any,
actions and rights in action, and all other claims, and all other contract
rights and general intangibles resulting from or used in connection with the
operation of the Trust Estate or the Vessel and in which Trustor now or
hereafter has rights; (d) all of Trustor's documents, instruments, contract
rights, and general intangibles including, without limitation, all insurance
policies, permits, licenses, franchises and agreements required for the use,
occupancy or operation of the Land, the Vessel or any of the Improvements (to
the extent such licenses, permits and approvals are not prohibited from being
pledged under Applicable Laws); (e) general intangibles, vacation license resort
agreements or other time share license or right to use agreements with respect
to the Land, the Vessel, the Improvements and/or the business being conducted
thereon, including, without limitation, all rents, issues, profits, income and
maintenance fees resulting therefrom; whether any of the foregoing is now owned
or hereafter acquired and (f) to the extent permitted by Applicable Laws, any
and all licenses, permits, variances, special permits, franchises, certificates,
rulings, certifications, validations, exemptions, filings, registrations,
authorizations, consents, approvals, waivers, orders, rights and agreements
(including options, option rights and contract rights) now or hereafter obtained
by Trustor from any Governmental Authority having or claiming jurisdiction over
the Land, the Vessel, the Tangible Property, the Property or any other element
of the Trust Estate or providing access thereto, or the operation of any
business on, at, or from the Land or the Vessel, including, without limitation,
any Gaming Licenses.
12
"LAND" has the meaning set forth in Granting Clause One.
"LEASES" means any and all leases, subleases, lettings, licenses,
concessions, operating agreements, management agreements and all other
agreements affecting or covering the Property or any portion thereof now or
hereafter existing or entered into, together with all amendments, extensions and
renewals of any of the foregoing.
"PERSONALTY" means the Intangible Property and the Tangible Property.
"PROPERTY" has the meaning set forth in Granting Clause Two.
"PUBLIC WATERS" means any river, lake, stream, sea, ocean, gulf, bay or
other public body of water.
"RECEIVER" means any trustee, receiver, custodian, fiscal agent,
liquidator or similar officer.
"RENTS" has the meaning set forth in Granting Clause Three.
"SUBSIDIARY GUARANTEE OBLIGATIONS" has the meaning set forth hereinabove.
"TANGIBLE PROPERTY" means any and all tangible personal property,
including, without limitation, all goods, equipment, supplies, building and
other materials of every nature whatsoever and all other tangible personal
property constituting a part or portion of the Property and/or used in the
operation of any hotel, casino, restaurant, store, parking facility, special
events arena, theme park, and any other commercial operations on the Property or
the Vessel, including but not limited to Inventory, communication systems,
visual and electronic surveillance systems and transportation systems and not
constituting a part of the real property subject to the real property lien of
this Deed of Trust and including all property and materials stored on all or any
portion of the Property or the Vessel in which Trustor has an interest and all
tools, utensils, food and beverage, liquor, uniforms, linens, housekeeping and
maintenance supplies, vehicles, fuel, advertising and promotional material,
blueprints, surveys, plans and other documents relating to the Land, the
Improvements or the Vessel, and all construction materials and all Fixtures,
including, but not limited to, all gaming equipment and devices which are used
in connection with the operation of the Property or the Vessel and those items
of Fixtures which are purchased or leased by Trustor, machinery and any other
item of personal property in which Trustor now or hereafter owns or acquires an
interest or right, and which are used or useful in the construction, operation,
use and occupancy of the
13
Property; to the extent permitted by the applicable contract or Applicable Laws,
all financial equipment, computer equipment, player tracking systems (including
all computer hardware, operating software programs and all right, title and
interest in and to any applicable license therefore), calculators, adding
machines, video game and slot machines, and any other electronic equipment of
every nature used or located on any part of the Property or the Vessel, and all
present and future right, title and interest of Trustor in and to any casino
operator's agreement, license agreement or sublease agreement used in connection
with the Property or the Vessel.
"TITLE POLICY" means the title insurance policy or policies in favor of
Beneficiary insuring the Lien of this Deed of Trust.
"TRUST ESTATE" has the meaning set forth hereinabove.
SECTION 1.2. RELATED MATTERS.
1.2.1. INTENTIONALLY DELETED.
1.2.2. CONSTRUCTION. Unless the context of this Deed of Trust clearly
requires otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, and "including" is not
limiting. The words "hereof," "herein," "hereby," "hereunder" and similar terms
in this Deed of Trust refer to this Deed of Trust as a whole (including the
Preamble, the Recitals and all Schedules and Exhibits, but subject to Section
1.2.5.) and not to any particular provision of this Deed of Trust. Article,
section, subsection, exhibit, recital, preamble and schedule references in this
Deed of Trust are to this Deed of Trust unless otherwise specified. References
in this Deed of Trust to any agreement, other document or law "as amended" or
"as may be amended from time to time," or to amendments of any document or law,
shall include any amendments, supplements, replacements, renewals or other
modifications.
1.2.3. DETERMINATIONS. Any determination or calculation contemplated by
this Deed of Trust that is made by Beneficiary shall be final and conclusive and
binding upon the Trustor and the Issuers, in the absence of manifest error.
References in this Deed of Trust to "determination" by Beneficiary include good
faith estimates (in the case of quantitative determinations) and good faith
beliefs (in the case of qualitative determinations). All references herein to
"discretion" of Beneficiary (or terms of similar import) shall mean "absolute
and sole discretion." All consents and other actions of Beneficiary contemplated
by this Deed of Trust may be given, taken, withheld or not taken in
Beneficiary's discretion (whether or not so expressed), except as otherwise
expressly provided herein. No approval or consent of Beneficiary shall be
effective unless the express written approval or consent of Beneficiary is
received by Trustor.
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1.2.4. GOVERNING LAW. This Deed of Trust shall be governed by, and
construed in accordance with, the laws of the State of New York, including,
without limitation, Section 5-1401 and 5-1402 of the New York General
Obligations Law, except that the provisions for the creation, perfection and
enforcement of the lien and security interest created pursuant to this Deed of
Trust shall be governed by the laws of the State of Mississippi.
1.2.5. HEADINGS. The Article and Section headings used in this Deed of
Trust are for convenience of reference only and shall not affect the
construction hereof.
1.2.6. SEVERABILITY. If any provision of this Deed of Trust or any Lien
or other right hereunder shall be held to be invalid, illegal or unenforceable
under Applicable Law in any jurisdiction, such provision, Lien or other right
shall be ineffective only to the extent of such invalidity, illegality or
unenforceability, which shall not affect any other provisions herein or any
other Lien or right granted hereby or the validity, legality or enforceability
of such provision, Lien or right in any other jurisdiction.
1.2.7. EXHIBITS AND SCHEDULES. All of the exhibits and schedules attached
to this Deed of Trust shall be deemed incorporated herein by reference.
ARTICLE 2.
[RESERVED]
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
Trustor hereby represents and warrants to Beneficiary and Trustee that,
as of the date hereof:
SECTION 3.1. CORPORATE EXISTENCE. Trustor (a) is a limited liability
company duly formed, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, and (b) has the limited liability
company power and authority to own its property and assets and to transact the
business in which it is engaged or presently proposes to engage, and (c) is duly
qualified and is authorized to do business and is in good standing as a foreign
limited liability company in every jurisdiction in which it owns or leases real
property or in which the nature of its business requires it to be so qualified.
SECTION 3.2. AUTHORIZATION; APPROVALS. The execution, delivery and
performance by Trustor of this Deed of Trust are within Trustor's limited
liability company powers and authority, have been duly authorized by all
necessary limited
15
liability company action, and do not contravene (a) Trustor's certificate of
formation, operating agreement or limited liability company agreement or (b) any
law or any contractual restriction binding on or affecting Trustor or the
Property. All authorizations or approvals or other actions by, or notice to or
filing with, any Governmental Authority required for the due execution, delivery
and performance by Trustor of this Deed of Trust have been duly obtained and are
in full force and effect.
SECTION 3.3. ENFORCEABILITY. This Deed of Trust has been duly executed
and delivered by Trustor and is the legal, valid and binding obligation of
Trustor, enforceable against Trustor in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally and general principles of equity.
SECTION 3.4. VALIDITY AND PERFECTION OF SECURITY INTERESTS. The liens and
security interests in the Trust Estate created in accordance with the terms
hereof and pursuant to the terms of the other Security Documents executed by
Trustor constitute valid security interests and upon recordation of this Deed of
Trust in the appropriate office in Tunica County, Mississippi, the security
interests granted to Beneficiary hereunder will constitute perfected security
interests therein superior and prior to all Liens, rights or claims of all other
Persons other than Permitted Liens.
SECTION 3.5. TITLE TO AND RIGHT TO USE ASSETS. Trustor has good and
marketable fee simple title in the Land, and is the legal and beneficial owner
of the remainder of the Trust Estate (and as to the Trust Estate whether now
existing or hereafter acquired, Trustor will continue to own each item thereof
except to the extent Trustor disposes of the same pursuant to the Indenture),
free and clear of all Liens except Permitted Liens. Trustor has the right to
hold, occupy and enjoy its interest in the Trust Estate subject to the terms of
the Gaming Licenses and subject to the Permitted Liens, and has valid right,
full power and legal authority, subject to Applicable Gaming Laws, to mortgage
and pledge the same as provided herein, and Trustor shall defend the Trust
Estate against all claims and demands of all Persons at any time claiming the
same or any interest therein adverse to Beneficiary (except for Permitted Liens)
and Beneficiary may, subject to Applicable Gaming Laws, at all times peaceably
and quietly enter upon, hold, occupy and enjoy the entire Trust Estate in
accordance with the terms hereof.
SECTION 3.6. NON-CONTRAVENTION. Neither the execution, delivery or
performance of this Deed of Trust by the Trustor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms hereof (i)
violate the terms of or constitute a default under any agreement, indenture,
mortgage, deed of trust, equipment lease, instrument or other document to which
the Trustor is a party or by which it or any of its property or assets is bound
or to which it may be subject, (ii) conflict with any law, order, rule or
regulation applicable to the Trustor of any court or any Governmental Authority,
or (iii) result in or require the creation or imposition of (or the obligation
to create or impose) any Lien (other than Permitted Liens and the Lien
contemplated hereby or by any other Security Document), upon or
16
with respect to any of the property or assets now owned or hereafter acquired by
Trustor.
SECTION 3.7. CONTRACTS. Each contract the absence of which would prevent
Trustor from operating the Trust Estate in a manner substantially similar to the
manner in which the Trust Estate is operated as of the date hereof (each, a
"Contract"), (i) is the genuine, legal, valid, and binding obligation of
Trustor, (ii) is enforceable against Trustor in accordance with its terms, (iii)
is in full force and effect and is, to Trustor's best knowledge, not subject to
any setoffs, defenses, overdue taxes, counterclaims or other claims, nor have
any of the foregoing been asserted or alleged as to any Contract, and (iv) is,
in all material respects, in compliance with all applicable laws, whether
federal, state, local or foreign, including, without limitation, Applicable
Gaming Laws ("Applicable Laws"). Neither Trustor nor, to the best knowledge of
Trustor, any other party to any Contract is in material default in the
performance or observance of any of the terms thereof. No party to any Contract
is the United States government or an instrumentality thereof.
SECTION 3.8. OCCUPANCY AGREEMENTS. Trustor has delivered to Beneficiary
true, correct and complete copies of all leases, subleases, occupancy agreements
and other agreements granting possessory rights in the Property or Vessel or any
portion thereof, including all amendments thereof and modifications thereto
(each, an "Occupancy Agreement"). Each Occupancy Agreement (i) is the genuine,
legal, valid and binding obligation of Trustor, (ii) is enforceable against
Trustor and, to the best knowledge of Trustor, the other party thereto, in
accordance with its terms, (iii) to the best knowledge of Trustor is in full
force and effect and is not subject to any setoffs, defenses, taxes,
counterclaims or other claims, nor have any of the foregoing been asserted or
alleged as to any Occupancy Agreement, and (iv) to the best knowledge of Trustor
is in compliance with all Applicable Laws in all material respects.
SECTION 3.9. NO OTHER PROPERTY, The Trust Estate, together with the other
property upon which a Security Interest is being granted to Beneficiary pursuant
to the terms of the Security Documents, constitutes all of the property (whether
owned, leased or otherwise) currently used by Trustor in connection with the
operation of the Fitzgeralds Casino Hotel located on the Land, other than the
Excluded Assets and the property upon which the granting of the security
interest or lien is not allowed by Applicable Laws.
SECTION 3.10. COMPLIANCE WITH LAWS. To the best knowledge of Trustor,
except as otherwise disclosed in writing to Beneficiary, the Trust Estate and
the proposed and actual use thereof comply in all material respects with all
Applicable Laws, and there is no proceeding pending or, to the best knowledge of
Trustor, threatened before any court, quasi-judicial body, Governmental
Authority relating to the validity of the Security Documents or the proposed or
actual use of the Trust Estate.
17
SECTION 3.11. PROPERTY USE; MECHANICS' LIENS. The Property is not used
principally or primarily for agricultural or grazing purposes. All costs for
labor and material for the removal, construction and renovation of the
Improvements (including, without limitation, any additions and alterations
thereto) have been paid in full or will be paid in accordance with Section 4.15.
SECTION 3.12. CONDEMNATION. There are no pending or, to the best
knowledge of Trustor, threatened condemnation or eminent domain proceedings
against the Trust Estate or any part thereof.
SECTION 3.13. LITIGATION. Except as disclosed in writing to Beneficiary
prior to the date hereof, there are no pending or, to the best knowledge of
Trustor, threatened, actions, claims, proceedings, investigations, suits or
proceedings before any court, Governmental Authority or arbitrator against
Trustor, the Trust Estate or any part thereof.
SECTION 3.14. CONSTRUCTION OF IMPROVEMENTS. All Improvements have been
and will be constructed in all material respects in accordance with Applicable
Laws and all requirements of Governmental Authorities and governmental
approvals. Except as disclosed in writing to Beneficiary prior to the date
hereof, to the best knowledge of Trustor, the Improvements (a) are free from
latent and patent defects that would have a material adverse effect on the value
of the Improvements or materially and adversely affect Trustor's use or
operation of the Improvements or Property, and (b) do not require any material
repairs, reconstruction or replacement on the date hereof.
ARTICLE 4.
AFFIRMATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
SECTION 4.1. SECURED OBLIGATIONS OF TRUSTOR. Trustor will perform,
observe and comply with its Secured Obligations arising under this Deed of Trust
and shall continue to be liable for the performance of its Secured Obligations
arising under this Deed of Trust until discharged in full, notwithstanding any
actions of partial foreclosure that may be brought hereunder to recover any
amount or amounts expended by Beneficiary on behalf of Trustor in order to cure
any of Trustor's defaults or to satisfy any of Trustor's obligations or
covenants under any agreement relating to the Trust Estate and to which Trustor
is a party or by which the Trust Estate is bound.
SECTION 4.2. COMPLIANCE WITH LAW; MAINTENANCE OF APPROVALS. Except as
expressly permitted by the Indenture, Trustor shall (i) comply in all
18
material respects with all requirements of law applicable to the ownership,
operation, use and occupancy of all or any portion of the Trust Estate, whether
or not such compliance requires work or remedial measures that are ordinary or
extraordinary, foreseen or unforeseen, or structural or nonstructural, and (ii)
maintain in full force and effect all authorizations, approvals or other
actions, including, without limitation, Gaming Licenses and liquor licenses and
permits, which are necessary for the performance of Trustor's obligations
pursuant to this Deed of Trust or for the business conducted by Trustor on the
Property.
SECTION 4.3. OTHER REPORTS. Trustor shall provide from time to time such
additional information regarding Trustor or the Trust Estate as are required
under the Indenture or as Beneficiary may reasonably request.
SECTION 4.4. INSURANCE. Trustor, at its sole cost and expense, will
provide, maintain and keep in force the insurance required by Section 4.16 of
the Indenture ("Insurance Policies").
SECTION 4.5. WASTE AND REPAIR. Except as expressly permitted by Section
4.15 of the Indenture, Trustor shall at all times cause the Trust Estate to be
maintained in normal working order and condition (reasonable wear and tear
excepted). Trustor shall not suffer any waste of the Property or do or permit to
be done thereon anything not otherwise permitted in the Indenture that may in
any way impair the security of this Deed of Trust. Trustor shall not abandon the
Property nor leave the Property unprotected or deserted.
SECTION 4.6. IMPOSITIONS; IMPOUNDS; TAXES; CAPITAL COSTS.
4.6.1. IMPOSITIONS AFFECTING THE PROPERTY. Trustor shall pay when due all
Impositions (or currently payable installments thereof) that are or that may
become a lien on the Property or are assessed against the Property or the Rents;
provided, however, that Trustor may, at its sole cost and expense, contest the
amount or validity or application of any such Impositions by appropriate legal
proceedings promptly initiated and conducted in good faith and with due
diligence; provided that (i) neither the Property nor any part thereof will be
in danger of being sold, forfeited, terminated, canceled, or lost as a result of
such contest, and (ii) except in the case of a Lien junior to the Lien of this
Deed of Trust, Trustor shall have posted such bond or furnished such other
security as may be reasonably required by Beneficiary or as required by
Applicable Laws to release such Lien.
4.6.2. IMPOUNDS; IMPOUND ACCOUNT. Upon the occurrence and during the
continuance of an Event of Default and at the request of Beneficiary, Trustor
will pay to Beneficiary monthly an amount equal to one-twelfth (1/12th) of the
annual cost (or such greater amount as may be reasonably necessary for
Beneficiary to have on hand sufficient funds to pay the next installment prior
to delinquency) of Impositions on the Property (but only those Impositions
defined in clause
19
(i) of the definition of "Impositions"), together with an amount equal to the
premium for hazard and other required insurance in order to accumulate with
Beneficiary sufficient funds to pay such Impositions and premiums at least 30
days prior to their respective due dates. Such funds shall be held by
Beneficiary on a commingled basis and shall not bear interest. Said accumulated
funds shall be paid and applied by Beneficiary with respect to such Impositions
and insurance premiums as and when due. Notwithstanding the foregoing, if
Trustor is paying Impositions and premiums for hazard and other required
insurance to Foothill Capital Corporation ("Foothill") pursuant to the terms of
that certain Deed of Trust, Security Agreement, and Fixture Filing with
Financing Statement and Assignment of Rents, dated as of the date hereof (the
"Foothill Deed of Trust"), made by Trustor, to Trustee, for the benefit of
Foothill, then Trustor's requirements under this Section 4.6.2 shall be
satisfied. If Beneficiary is entitled to request Trustor to comply with the
terms of this Section 4.6.2 and such payments are not being required by or made
to Foothill for any reason, Trustor shall promptly comply with the terms of this
Section 4.6.2.
SECTION 4.7. FURTHER ASSURANCES. Trustor shall, at its own expense,
perform such acts as may be necessary, or that Beneficiary may request at any
time, to execute, acknowledge and deliver all such additional papers and
instruments (including, without limitation, a declaration of no setoff) and all
such further assurances of title and will do or cause to be done all further
acts and things as may be proper or reasonably necessary to carry out the
purpose hereof and to subject to the Liens hereof any property intended by the
terms hereof to be covered thereby and any renewals, additions, substitutions,
replacements or betterments thereto.
SECTION 4.8. REIMBURSEMENT: WAIVER OF OFFSETS.
4.8.1. In the event any tax, stamp tax, assessment, water rate, sewer
rate, insurance premium, repair, rent charge, debt, claim, inspection,
Imposition or lien having priority over the Lien of this Deed of Trust, or in
the event any other amount required to be paid by Trustor hereunder shall remain
unpaid and Trustor is not contesting such amount pursuant to the terms hereof or
the Indenture, Beneficiary shall have the right to pay such amount and shall
have the right to declare immediately due and payable any such amount so paid.
Any amount so paid by Beneficiary shall bear interest at the default interest
rate specified in Section 4.1 of the Indenture ("Default Rate") from the date of
payment by Beneficiary, shall constitute an additional Secured Obligation
secured hereby, prior to any right, title or interest in or claim upon the Trust
Estate attaching or accruing subsequent to the Lien of this Deed of Trust, shall
be secured by this Deed of Trust and shall be payable by Trustor to Beneficiary
within thirty (30) days after receipt by Trustor of written demand.
4.8.2. Except as otherwise provided herein, in the Indenture or in the
other Security Documents, all sums payable by Trustor hereunder or under the
other Security Documents shall be paid without notice, demand, counterclaim,
setoff, deduction or defense and without abatement, suspension, deferment,
diminution or
20
reduction, and the obligations and liabilities of Trustor hereunder shall in no
way be released, discharged or otherwise affected by reason of: (i) any damage
to or destruction of or any condemnation or similar taking of the Trust Estate
or any part thereof; (ii) any restriction or prevention of or interference with
any use of the Trust Estate or any part thereof; (iii) any title defect or
encumbrance or any eviction from the Property or the Improvements or any part
thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Beneficiary, or any action taken with respect to this
Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any
such proceeding; (v) any claim which Trustor has or might have against
Beneficiary; (vi) any default or failure on the part of Beneficiary to perform
or comply with any of the terms hereof or of any other agreement with Trustor or
(vii) any other occurrence whatsoever, whether similar or dissimilar to the
foregoing; whether or not Trustor shall have notice or knowledge of any of the
foregoing. Trustor waives all rights now or hereafter conferred by statute or
otherwise to any abatement, suspension, deferment, diminution or reduction of
any sum secured hereby and payable by Trustor.
SECTION 4.9. LITIGATION. Trustor will, promptly upon obtaining actual
knowledge thereof, give notice in writing to Beneficiary of any litigation
commenced that is likely to have a material adverse effect on the Property or
the Liens created hereby other than unlawful detainer proceedings brought by
Trustor in connection with the Leases.
SECTION 4.10. CERTAIN REPORTS. Trustor will, promptly and in any event
within fifteen days after actual receipt by Trustor thereof, deliver to
Beneficiary a copy of any written notice or citation concerning any actual,
alleged or suspected violation of any Environmental Law or liability of Trustor
for Environmental Damages in connection with the Property or past or present
activities of any Person thereon.
SECTION 4.11. TAX RECEIPTS. Subject to the provisions of Section 4.6
hereof, Trustor shall provide to Beneficiary, within 30 days after demand made
therefor, bills (which shall be receipted from and after the date receipted
bills are obtainable) showing the payment to the extent then due of all taxes,
assessments (including those payable in periodic installments), water rates,
sewer rates, and/or any other Imposition that have become a lien (other than an
inchoate lien) upon the Trust Estate.
SECTION 4.12. FIRPTA AFFIDAVIT. Trustor hereby represents and warrants to
Beneficiary under penalty of perjury:
(i) Trustor's U.S. Taxpayer Identification Number is 62-1868783;
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(ii) Trustor's business address is set forth in the preamble
hereto; and
(iii) Trustor is not a "foreign person" within the meaning of
Sections 1445 and 7701 of the Code (i.e., Trustor is not a nonresident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined in the Code and regulations promulgated thereunder).
Trustor agrees to indemnify, defend, protect and hold Beneficiary and
Beneficiary's agents harmless of, from and against any and all loss, liability,
costs, damages, claims or causes of action including reasonable attorneys' fees,
costs and expenses which may be actually incurred by Beneficiary or
Beneficiary's agents by reason of any failure of any representation or warranty
made by Trustor in this Section 4.12 to be true and correct in all respects,
including, but not limited to, any liability for failure to withhold any amount
required under Code Section 1445 in the event of foreclosure or other transfer
of the Property.
SECTION 4.13. PRESERVATION OF CONTRACTUAL RIGHTS. Except as otherwise
expressly permitted by the Indenture or as would not have a Material Adverse
Effect, Trustor shall, prior to delinquency, default or forfeiture, perform all
material obligations and satisfy all material conditions required on its part to
be satisfied to preserve its rights and privileges under any contract, lease,
license, permit or other authorization (a) under which it holds any Tangible
Property, or (b) which constitutes part of the Intangible Property.
SECTION 4.14. TAX SERVICE CONTRACT. At any time after the occurrence of
an Event of Default (whether or not such Event of Default is cured), at the
request of Beneficiary and at Trustor's and/or its permitted successor's sole
cost and expense, Beneficiary shall be furnished a tax service contract in form
satisfactory to Beneficiary issued by a tax reporting agency satisfactory to
Beneficiary, which contract shall remain in force until indefeasible discharge
in full of the Secured Obligations.
SECTION 4.15. LIENS. Trustor shall pay and promptly discharge, at
Trustor's sole cost and expense, all Liens upon the Trust Estate, or any part
thereof or interest therein other than the Permitted Liens. Trustor shall have
the right to contest in good faith the validity of any such Lien, provided
Trustor shall first post such bond or furnish such other security as may be
reasonably required by Beneficiary or as required by Applicable Law to release
such Lien, and provided further that Trustor shall thereafter diligently proceed
to cause such Lien to be removed and discharged. If Trustor shall fail to so
diligently proceed or to discharge any such Lien, then upon the occurrence and
continuance of an Event of Default (unless the Property is in danger of being
sold, forfeited, terminated, canceled, or lost as a result of such contest, in
which case, Beneficiary may act in the absence of an Event of Default), then, in
addition to any other right or remedy of Beneficiary, Beneficiary may, but
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shall not be obligated to, discharge the same, either by paying the amount
claimed to be due, or by procuring the discharge of such Lien by depositing in
court a bond for the amount claimed or otherwise giving security for such Lien,
or in such manner as is or may be prescribed by law. Any amount so paid by
Beneficiary shall bear interest at the Default Rate from the date of payment by
Beneficiary, shall constitute an additional Secured Obligation secured hereby,
prior to any right, title or interest in or claim upon the Trust Estate
attaching or accruing subsequent to the Lien of this Deed of Trust, shall be
secured by this Deed of Trust and shall be payable by Trustor to Beneficiary
upon demand.
SECTION 4.16. INSPECTION. Trustor shall permit Beneficiary, upon 24
hours' prior notice, to enter upon and inspect, during normal business hours,
the Property and the construction and operation thereof, for such purposes
reasonably deemed necessary by Beneficiary; provided, however, that no such
prior notice shall be necessary and such inspection may occur at any time if (i)
Beneficiary reasonably believes that an emergency exists or is imminent or (ii)
the giving or delivery of such notice is prohibited or stayed by Applicable
Laws.
ARTICLE 5.
[RESERVED]
ARTICLE 6.
NEGATIVE COVENANTS
Trustor hereby covenants to and agrees with Beneficiary as follows:
SECTION 6.1. RESTRICTIVE USES. Trustor covenants not to suffer any Liens
against the Trust Estate (other than Permitted Liens).
SECTION 6.2. TRANSFERABILITY.
6.2.1. Trustor shall not make any Asset Sale unless the proceeds of such
Asset Sale are applied as required by Section 4.10 of the Indenture. Except as
set forth in the Indenture, Trustor shall not sell, assign, pledge, encumber,
convey, hypothecate or otherwise transfer any direct or indirect interest in
Trustor (or permit any of the foregoing), either voluntarily or involuntarily,
by operation of law or otherwise.
6.2.2. Trustor shall have the right to grant easements to Tunica County,
Mississippi (or its designee) as required by that certain Agreement for the Sale
and Purchase of Real Estate, dated as of July 2, 2001, by and between
Fitzgerald's Mississippi, Inc., and Tunica County, Mississippi (the "Grant"),
provided that
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all of the conditions set forth below have been satisfied in connection with
such Grant:
6.2.2.1. Beneficiary shall have received from Trustor written
notice ("Notice") of such proposed Grant;
6.2.2.2. the Grant shall not materially and adversely affect the
operation or use of the Property or materially and adversely affect the value of
the Property;
6.2.2.3. no Event of Default shall have occurred and be continuing
as of the date of the Notice or the date of Transfer;
6.2.2.4. such Transfer is not otherwise prohibited by the
Indenture;
6.2.2.5. Trustor, at its sole cost and expense, shall have
delivered to Beneficiary (a) one or more endorsements to the Title Policy
insuring that, after giving effect to such Transfer, (i) the Lien created hereby
and insured thereunder is a first priority Lien on the respective remaining
portion of the Property subject only to the Permitted Liens applicable to the
remaining Property, and (ii) that the Title Policy (including the access
coverage thereunder) is in full force and effect and unaffected by such Grant
(except as contemplated by this Section 6.2.2); (b) a fully executed copy of the
easement agreements executed by Trustor with respect to the Grant; and (c)
Trustor's proposed form of agreement subordinating the Lien of this Deed of
Trust as to such Grant; and
6.2.2.6. Trustor shall pay or reimburse Beneficiary for all of its
reasonable costs and expenses incurred in connection with the requested
Transfer.
6.2.3. After the satisfaction of the conditions contained in Section
6.2.2, Beneficiary shall deliver to Trustee appropriate instructions to
subordinate the Lien of this Deed of Trust to the Grant.
SECTION 6.3. NO COOPERATIVE OR CONDOMINIUM. Trustor shall not operate or
permit the Property to be operated as a cooperative or condominium building or
buildings in which the tenants or occupants participate in the ownership,
control or management of the Property or any part thereof, as tenant
stockholders or otherwise.
ARTICLE 7.
CASUALTIES AND CONDEMNATION
SECTION 7.1. CASUALTIES.
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7.1.1. Trustor will notify Beneficiary in writing promptly after loss or
damage caused by fire, wind or other casualty to the Property (a) that is in
excess of $20,000, or (b) that would individually, or in the aggregate, have a
material adverse effect on the value of the Improvements, Property or Vessel or
materially and adversely affect Trustor's use or operation of the Improvements,
Property or Vessel ("Casualty").
7.1.2. Any and all Net Proceeds from Insurance Policies shall be treated
in accordance with Section 4.10 of the Indenture and shall be released to
Trustor or applied to the discharge of the Secured Obligations as set forth in
the Indenture.
7.1.3. If Trustor elects to apply Net Proceeds of insurance to
restoration, Trustor agrees promptly and without delay (a) to enter into, and
deliver to Beneficiary a certified copy of, one or more architect and building
contracts providing for the restoration and reconstruction of the Property to as
good or better condition as existed prior to the Casualty and (b) to begin to
restore and reconstruct the Property and, thereafter, to proceed diligently
therewith in accordance with plans, specifications, architectural standards and
design reasonably determined by Trustor.
7.1.4. Notwithstanding anything to the contrary contained herein, in the
event of any uninsured Casualty, Trustor shall promptly within a reasonable
time, at its sole cost and expense, restore and reconstruct the Property to as
good or better condition as existed prior to the Casualty. Trustor shall have
the sole right to settle any and all losses and claims unless an Event of
Default then exists.
SECTION 7.2. CONDEMNATION. Trustor, immediately upon obtaining knowledge
of the institution of any proceedings for the condemnation of the entire
Property or any material portion thereof, will notify Trustee and Beneficiary of
the pendency of such proceedings. Trustee and Beneficiary may participate in any
such proceedings and Trustor from time to time will deliver to Beneficiary all
instruments requested by Beneficiary to permit such participation; provided,
however, that Trustor shall have the sole right to participate in and settle any
and all such proceedings unless an Event of Default then exists. In any such
condemnation proceedings Beneficiary may be represented by counsel selected by
Beneficiary at the sole cost and expense of Trustor. Trustor shall cause the Net
Proceeds of any award or compensation or payment in lieu or settlement thereof,
to be applied as set forth in Section 4.10 of the Indenture.
ARTICLE 8.
REMEDIES OF BENEFICIARY
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SECTION 8.3. EVENT OF DEFAULT. Subject to any applicable cure period
provided for in the Indenture or in this Deed of Trust, any of the following
shall be deemed to be an "Event of Default" hereunder if not cured within such
applicable cure period:
8.3.1. The occurrence of one or more "Events of Default" (as defined in
Section 6.1 of the Indenture) shall constitute an Event of Default under this
Deed of Trust (including, without limitation, by reason of any cross-default in
Section 6.1 of the Indenture).
8.3.2. Failure of Trustor to perform any of the terms, covenants and
conditions in this Deed of Trust; provided, however, it shall not be an Event of
Default hereunder if such failure is curable, Trustor commences to cure such
failure within thirty (30) days of notice from Beneficiary, and Trustor
diligently prosecutes such cure to completion within sixty (60) days after
notice of such failure, but in no event beyond the maturity date of the Notes;
and provided that, with respect to the environmental covenants contained in
Section 11.2 hereof, no Event of Default shall be deemed to have occurred unless
any such covenant is breached in any material respect.
8.3.3. Any statement, representation or warranty given by Trustor to
Trustee or Beneficiary in any of the Security Documents, in connection with the
Indenture or in any other document provided by Trustor, including this Deed of
Trust, is found to be materially false or misleading and such statement,
representation or warranty continues to be materially false or misleading within
sixty (60) days after notice from Beneficiary of such statement, representation
or warranty was made, but in no event beyond the maturity date of the Notes.
8.3.4. Any transfer of the Property or any portion thereof in violation
of Section 6.2 hereof.
SECTION 8.4. REMEDIES. At any time after and during the continuance of an
Event of Default, subject to any restrictions contained in any Intercreditor
Agreement and subject to compliance with Applicable Gaming Laws, Beneficiary
may:
8.4.1. In person, by agent, or by a receiver, and without regard to the
adequacy of security, the solvency of Trustor or any other matter, (i) enter
upon and take possession of the Property, or any part thereof, in its own name
or in the name of Trustee, (ii) inspect the Property for the purpose of
determining the existence, location, nature and magnitude of any past or present
release of Hazardous Materials into, onto, beneath or from the Property, (iii)
negotiate with Governmental Authorities with respect to compliance with
Environmental Laws and remedial measures, (iv) take any action necessary to
ensure compliance with Environmental Laws, including, but not limited to,
spending Rents in connection with any cleanup, remediation or other response
action with respect to Hazardous Materials or (v) sue for or otherwise collect
the Rents, issues and profits thereof and apply the same, less costs and
expenses of operation and collection, including
26
reasonable attorneys' fees actually incurred, to the Secured Obligations, all in
such order as Beneficiary may determine. The entering upon and taking possession
of said Property, the collection of such Rents, issues and profits and the
application thereof as aforesaid shall not cure or waive any default or notice
of default hereunder or invalidate any act done pursuant to such notice, or
deprive Beneficiary of the benefits of any indemnity set forth herein;
8.4.2. Commence an action to foreclose this Deed of Trust in the manner
provided by Applicable Laws for the foreclosure of mortgages or deeds of trust
of real property;
8.4.3. Seek a judgment that Trustor has breached its covenants,
representations and/or warranties set forth in this Deed of Trust, or any other
Security Document regarding Environmental Laws and/or Hazardous Materials, by
commencing, maintaining and concluding, and enforcing a judgment arising from,
an action for breach of contract, without regard to whether Beneficiary has
commenced an action to foreclose this Deed of Trust, and to seek injunctive or
other appropriate equitable relief and/or the recovery of any and all
Environmental Damages, it being conclusively presumed between Trustor and
Beneficiary that any reasonable costs advanced or expenses actually incurred by
Beneficiary relating to the cleanup, remediation or other response action with
respect to the Property were made or incurred by Beneficiary in good faith;
8.4.4. Intentionally Deleted.
8.4.5. If the Secured Obligations become or are declared immediately due
and payable pursuant to Section 6.2 of the Indenture and Trustor fails to make
such payment as and when due, then Beneficiary may waive its Liens against any
parcel of the Property or all or any portion of the Fixtures or Personalty
attached to the Property, to the extent such property is determined to be
environmentally impaired, and to exercise any and all rights of an unsecured
creditor against Trustor and all of Trustor's assets for the recovery of any
deficiency, including, but not limited to, seeking an attachment order. TRUSTOR
ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXPRESS
OR IMPLIED, IN THIS DEED OF TRUST OR IN ANY OF THE OTHER SECURITY DOCUMENTS
(INCLUDING, WITHOUT LIMITATION, ANY NONRECOURSE OR EXCULPATORY LANGUAGE, IF
ANY), TRUSTOR SHALL BE PERSONALLY LIABLE FOR ANY RECOVERY DESCRIBED IN THIS
PARAGRAPH 8.2.5. AND SUCH LIABILITY SHALL NOT BE LIMITED TO THE AMOUNT OF THE
NOTES;
8.4.6. With respect to any Personalty, proceed as to both the real and
personal property in accordance with Beneficiary's rights and remedies in
respect of the Property, or proceed to sell said Personalty separately and
without regard to the Property in accordance with Beneficiary's rights and
remedies; and/or
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8.4.7. Pursue any and all other remedies it may have, at law or in
equity, or under any other document or instrument, except as otherwise provided
in the Indenture.
SECTION 8.5. POWER OF SALE. Upon the occurrence and during the
continuance of an Event of Default, then, in that event, the entire Subsidiary
Guarantee Obligations, together with all interest accrued thereon, shall, at the
option of Beneficiary, be and become at once due and payable without notice to
Trustor, and Trustee shall, at the request of Beneficiary, but subject to
Applicable Gaming Laws, sell the Property conveyed, or a sufficiency thereof, to
satisfy the Subsidiary Guarantee Obligations at public outcry to the highest
bidder for cash or on such other terms as Trustee may approve. Sale of the
Property shall be advertised for three (3) consecutive weeks preceding the sale
in a newspaper published in the county where the Property is situated, or if
none is so published, then in some newspaper having a general circulation
therein, and by posting a notice for the same time at the courthouse of the same
county. The notice and advertisement shall disclose the names of the original
Trustor in this Deed of Trust. Trustor waives the provisions of Section 89-1-55
of the Mississippi Code of 1972, as amended, if any, as far as this section
restricts the right of Trustee to offer at sale more than 160 acres at a time,
and Trustee may offer the property herein conveyed as a whole, regardless of how
it is described. If the Property is situated in two (2) or more counties, or in
two (2) judicial districts of the same county, Trustee shall have full power to
select in which county, or judicial district, the sale of the Property is to be
made, newspaper advertisement to be published and notice of sale to be posted,
and Trustee's selection shall be binding upon Trustor and Beneficiary. Should
Beneficiary be a corporation or an unincorporated association, then any officer
thereof may declare Trustor to be in default as provided in Section 8.1 hereof
and request Trustee to sell the Property. Beneficiary shall have the same right
to purchase the Property at the foreclosure sale as would a purchaser who is not
a party to this Deed of Trust.
SECTION 8.6. PROOF OF DEFAULT. In the event of a sale of the Property, or
any part thereof, and the execution of a deed or deeds therefor, the recital
therein of default, and of recording notice of breach and election of sale, and
of the elapsing of the required time (if any) between the foregoing recording
and the following notice, and of the giving of notice of sale, and of a demand
by Beneficiary, or its successors or assigns, that such sale should be made, to
the extent permitted by Applicable Laws, as between Trustor and any purchaser at
such sale shall be conclusive proof of such default, recording, election,
elapsing of time, and of the due giving of such notice, and that the sale was
regularly and validly made on due and proper demand by Beneficiary, its
successors or assigns; and any such deed or deeds with such recitals therein
shall be effectual and conclusive as to any such purchaser against Trustor, its
successors and assigns, and all other Persons; and the receipt for the purchase
money recited or contained in any deed executed to the purchaser as aforesaid
shall be sufficient discharge to such purchaser from all obligations to see to
the proper application of the purchase money.
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SECTION 8.7. PROTECTION OF SECURITY. If an Event of Default shall have
occurred and be continuing, then upon at least 15 days prior written notice to
Trustor and without releasing Trustor from any obligations or defaults
hereunder, Beneficiary or Trustee shall have the right, but not the obligation,
to: (i) make payment or otherwise perform such obligations of Trustor upon which
such Event of Default is based in such manner and to such extent as either may
reasonably deem necessary to protect the security hereof, Beneficiary and
Trustee being authorized to enter upon the Property for such purpose; (ii)
appear in and defend any action or proceeding purporting to affect, in any
manner whatsoever, the Secured Obligations, the security hereof or the rights or
powers of Beneficiary or Trustee; (iii) pay, purchase or compromise any
encumbrance, charge or lien (other than Permitted Liens); (iv) advance any and
all costs and expenses reasonably necessary to cure or pay Environmental Damages
or otherwise to comply with Environmental Laws; and (v) in exercising any such
powers, pay necessary expenses, employ counsel and pay attorneys' fees. Trustor
hereby agrees to repay within thirty (30) days after receipt of written demand
all reasonable sums actually expended by Trustee or Beneficiary pursuant to this
Section 8.5. with interest at the Default Rate from the date of expenditure by
Beneficiary, and such sums, with interest, shall be secured hereby.
SECTION 8.8. RECEIVER. If an Event of Default shall have occurred and be
continuing, Beneficiary, as a matter of strict right and without regard to the
then value of the Property, shall have the right to apply to any court having
jurisdiction to appoint a Receiver or Receivers of the Property, subject to
Applicable Gaming Laws. Any such Receiver or Receivers shall have all the powers
and duties of receivers under Applicable Laws in like or similar cases and all
the powers and duties of Beneficiary in case of entry as provided in this Deed
of Trust, and shall continue as such and exercise all such powers until the date
of confirmation of sale, unless such receivership is sooner terminated.
SECTION 8.9. CURING OF DEFAULTS.
8.9.1. If Trustor shall at any time fail to perform or comply with any of
the terms, covenants and conditions required on Trustor's part to be performed
and complied with under this Deed of Trust or any other Security Document
relating to the Trust Estate (after the lapse of any cure period provided
therein), then Beneficiary shall have the right, but not the obligation, upon
the occurrence and during the continuance of an Event of Default, without
waiving or releasing any of the Secured Obligations, to:
8.9.1.1. make any payments thereunder payable by Trustor and take
out, pay for and maintain any of the insurance policies provided for therein,
and/or
8.9.1.2. after the expiration of any applicable grace period and
subject to Trustor's rights to contest certain obligations specifically granted
hereby, perform any such other acts thereunder on the part of Trustor to be
performed and enter upon the Property and incur reasonable attorneys' fees and
expenses for such purpose.
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8.9.2. The making by Beneficiary of such payment out of Beneficiary's own
funds shall not, however, be deemed to cure such default by Trustor, and the
same shall not be so cured unless and until Trustor shall have reimbursed
Beneficiary within the applicable cure period for such payment including
interest at the Default Rate from the date of such expenditure. All sums so paid
and all reasonable costs and expenses actually incurred and paid by Beneficiary
in connection with the performance of any such act, together with interest on
unpaid balances thereof at the Default Rate from the respective dates of
Beneficiary's making of each such payment, shall be secured by the lien of this
Deed of Trust, prior to any right, title or interest in or claim upon the
Property attaching or accruing subsequent to the lien of this Deed of Trust, and
shall be payable by Trustor to Beneficiary within thirty (30) days after receipt
of written demand.
SECTION 8.10. REMEDIES CUMULATIVE. All remedies of Beneficiary provided
for herein are cumulative and shall be in addition to any and all other rights
and remedies provided in the other Security Documents or provided by Applicable
Law, including any banker's lien and right of offset. The exercise of any right
or remedy by Beneficiary hereunder shall not in any way constitute a cure or
waiver of default hereunder or under the Security Documents, or invalidate any
act done pursuant to any notice of default, or prejudice Beneficiary in the
exercise of any of its rights hereunder or under the Security Documents unless,
in the exercise of said rights, all Secured Obligations are fully discharged.
ARTICLE 9.
FIXTURE FILING
SECTION 9.11. FIXTURE FILING.
9.11.1. This Deed of Trust shall be effective as a Financing Statement
filed as a fixture filing from the date of the recording hereof in accordance
with the Uniform Commercial Code. In connection therewith, the addresses of
Trustor as debtor ("Debtor") and Beneficiary as secured party ("Secured Party")
are set forth on Schedule 13.9. The address of Beneficiary, as the Secured
Party, is also the address from which information concerning the security
interest may be obtained by any interested party.
9.11.1.1. The property subject to this fixture filing is described
in Granting Clause Six.
9.11.1.2. Portions of the property subject to this fixture filing
as identified in Section 9.1.1.1. above are or are to become fixtures related to
the real estate described on Exhibit A to this Deed of Trust.
9.11.1.3.
Secured Party is: The Bank of New York, as Collateral Agent
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9.11.1.4.
Debtor is: Barden Mississippi Gaming, LLC, a Mississippi limited
liability company
9.11.1.5.
The record owner or lessee of the Property is:
Barden Mississippi Gaming, LLC, a Mississippi limited liability
company
9.11.2. In the event Trustor shall fail, beyond any applicable notice and
grace periods, to make any payment or perform any covenant related to any
security interest in favor of any Person other than Beneficiary, Beneficiary
may, at its option, within 15 days after notice to Trustor or if Beneficiary's
immediate action is reasonably necessary to protect the lien hereof or its
security for the Secured Obligations, at any time without prior notice to
Trustor, pay the amount secured by such security interest, and the amount so
paid shall be (i) secured by this Deed of Trust and shall be a lien on the
Property enjoying the same priorities vis-a-vis the estates and interests
encumbered hereby as this Deed of Trust, (ii) added to the amount of the Secured
Obligations, and (iii) payable within 30 days after receipt of written demand
with interest at the Default Rate from the time of such payment; or, upon and
during the continuance of an Event of Default, Beneficiary shall have the
privilege of acquiring by assignment from the holder of such security interest
any and all contract rights, accounts receivable, chattel paper, negotiable or
non-negotiable instruments and other evidence of Trustor's indebtedness secured
by such fixtures, and, upon acquiring such interest by assignment, shall have
the right to enforce the security interest as assignee thereof, in accordance
with the terms and provisions of Applicable Laws.
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ARTICLE 10.
ASSIGNMENT OF RENTS
SECTION 10.12. Assignment of Rents. Subject to Section 10.2. and to
Applicable Gaming Laws, Trustor hereby absolutely and unconditionally assigns
and transfers to Beneficiary all of the Rents, whether now due, past due or to
become due, and hereby gives to and confers upon Beneficiary the right, power
and authority to collect such Rents and apply the same to the Secured
Obligations secured hereby. Trustor irrevocably appoints Beneficiary its true
and lawful attorney, at the option of Beneficiary at any time while an Event of
Default exists, to demand, receive and enforce payment, to give receipts,
releases and satisfactions, and to sue, either in the name of Trustor or in the
name of Beneficiary, for all such Rents and apply the same to the Secured
Obligations secured hereby. It is understood and agreed that neither the
foregoing assignment of Rents to Beneficiary nor the exercise by Beneficiary or
any of its rights or remedies under this Deed of Trust shall be deemed to make
Beneficiary a "mortgagee-in-possession" or otherwise responsible or liable in
any manner with respect to the Property or the use, occupancy, enjoyment or
operation of all or any portion thereof, unless and until Beneficiary, in person
or by its own agent, assumes actual possession thereof, nor shall appointment of
a Receiver for the Property by any court at the request of Beneficiary or by
agreement with Trustor or the entering into possession of the Property or any
part thereof by such Receiver be deemed to make Beneficiary a "mortgagee-in-
possession" or otherwise responsible or liable in any manner with respect to the
Property or the use, occupancy, enjoyment or operation of all or any portion
thereof.
SECTION 10.13. Collection of Rents. Notwithstanding anything to the
contrary contained herein, so long as no Event of Default shall occur and be
continuing, Trustor shall have a license, revocable upon the occurrence and
during the continuance of an Event of Default, to collect all Rents from the
Property and to retain, use and enjoy the same and to otherwise exercise all
rights with respect thereto, subject to the terms hereof. Upon the occurrence
and during the continuance of an Event of Default, the license hereinabove
granted to Trustor shall, without the requirement of the giving of notice or
taking of any action by any party, be revoked, and Beneficiary shall have the
complete right and authority to exercise and enforce any and all of its rights
and remedies provided herein or by Applicable Laws.
ARTICLE 11.
ENVIRONMENTAL MATTERS
SECTION 11.14. Representations and Warranties. Except as specifically
disclosed in Schedule 11.1, Trustor represents and warrants as of the date
hereof as follows:
32
11.14.1. Trustor (i) has obtained all material permits, licenses and
other authorizations that are required with respect to the operation of its
business, property and assets under the Environmental Laws and is in substantial
compliance with all terms and conditions thereof, and (ii) is in substantial
compliance with all Environmental Laws (including, without limitation,
compliance with standards, schedules and timetables therein);
11.14.2. No portion of the Trust Estate is listed or proposed for listing
on the National Priorities List or the Comprehensive Environmental Response,
Compensation, and Liability Information System, both promulgated under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or on any other state or local list established pursuant to
any Environmental Law, and Trustor has not received any notification of
potential or actual liability or request for information under CERCLA or any
comparable state or local law;
11.14.3. To the knowledge of the Company, no underground storage tank or
other underground storage receptacle, or related piping, is located on the
Property;
11.14.4. To the knowledge of the Company, there have been no releases
(i.e., any past or present releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, disposing or
dumping, on-site or, to the knowledge of the Trustor after due inquiry,
off-site) of Hazardous Materials at, on, under, from or into the Property;
11.14.5. There is no written, or to the knowledge of the Company, oral
Environmental Claim pending or, to the knowledge of the Company, threatened
against any of them, and to the knowledge of the Company, neither Trustor nor
any person or entity whose liability Trustor has retained or assumed either
contractually or by operation of law has any liability, absolute or contingent,
under any Environmental Law; and
11.14.6. To the knowledge of the Company, there are no events,
activities, practices, incidents or actions or conditions, circumstances or
plans that may interfere with or prevent compliance by Trustor with any
Environmental Law, or that may give rise to any Environmental Claim or liability
under any Environmental Laws.
11.14.7. Trustor has not received any communication (written or, to the
knowledge of the Company, oral), whether from a governmental authority, citizens
group, employee or otherwise, that alleges that Trustor or the Property is not
in substantial compliance with any Environmental Law, and there are no known
circumstances that may prevent or interfere with such substantial compliance in
the future.
11.14.8. Trustor has provided or made available to the Issuers all
assessments, reports, data, results of investigations or audits, and other
information that is in the possession of or reasonably available to Trustor
regarding environmental matters
33
pertaining to, or the environmental condition of, the Land and the business of
Trustor, or the compliance (or noncompliance) of the Land and Trustor with any
Environmental Laws.
11.14.9. Trustor is not required by virtue of the transactions set forth
herein and contemplated hereby, or as a condition to the effectiveness of any
transactions contemplated hereby, (i) to perform a site assessment for Hazardous
Materials, (ii) to remove or remediate Hazardous Materials, (iii) to give notice
to or receive approval from any Governmental Authority under Environmental Laws,
or (iv) to record or deliver to any person or entity any disclosure document or
statement pertaining to environmental matters.
11.14.10. The above representations and warranties contained in this
Section 11.1 shall survive the termination, release and/or reconveyance of this
Deed of Trust and the discharge of Trustor's other obligations hereunder.
SECTION 11.15. Environmental Covenants. Trustor shall at all times comply
with the following requirements; provided, however, that in connection with the
non-compliance with any of the provisions contained in Sections 11.2.1 through
11.2.4, inclusive, no breach shall be deemed to have occurred if Trustor
complies with the requirements of Section 11.2.5 with respect thereto:
11.15.1. Trustor shall not cause or permit any Hazardous Material to be
brought upon, treated, kept, stored, disposed of, discharged, released,
produced, manufactured, generated, refined or used upon, within or beneath the
Property or any portion thereof by Trustor, its agents, employees, contractors,
or invitees, or any other Person, except in compliance with all Environmental
Laws and only in the course of such Person's legitimate business operations at
the Property (which shall not include any business for treatment, storage,
disposal, discharge, release, production, manufacture, generation, refinement or
use of Hazardous Materials).
11.15.2. Trustor shall not cause or permit the existence or the
commission by Trustor, its agents, employees, contractors or invitees, or by any
other Person of a violation of any Environmental Laws upon, within or beneath
the Property or any portion thereof.
11.15.3. Trustor shall not dispose of, discharge or release or cause or
permit the disposal, discharge or release of any Hazardous Materials from the
Property into any Public Waters in violation of any Environmental Laws.
11.15.4. Trustor shall not create or suffer to exist with respect to the
Property or permit any of its agents to create or suffer to exist any
environmental lien, security interest or other charge or encumbrance of any kind
(other than a Permitted Lien) arising under any Environmental Law.
34
11.15.5. Trustor shall, at its sole cost and expense, promptly take any
and all actions required by any federal, state or local governmental agency or
political subdivision (as hereinafter provided) to mitigate Environmental
Damages, which requirements or necessity arise from the presence upon, about or
beneath the Property, of Hazardous Materials or a violation of Environmental Law
or the disposal, discharge or release of Hazardous Materials from the Property
("Environmental Action"). Such actions shall include, but not be limited to, the
investigation of the environmental condition of the Property, the preparation of
any feasibility studies, reports or remedial plans, and the performance of any
cleanup, remediation, containment, operation, maintenance, monitoring or
restoration work, whether on or off of the Property. Trustor shall take all
actions as are reasonably necessary under Environmental Laws to allow
unrestricted activities and operations on the Property. Trustor shall proceed
diligently with such investigatory and remedial actions, and in all cases such
actions shall be in accordance with Applicable Laws. Any such actions shall be
performed in a good, safe and workmanlike manner and shall minimize any impact
on the business conducted at the Property. Trustor shall pay all Environmental
Damages in connection with such investigatory and remedial activities,
including, but not limited to, all power and utility costs, and any and all
taxes or fees that may be applicable to such activities. Trustor shall promptly
provide to Beneficiary copies of testing results and reports that are generated
in connection with the above activities. Promptly upon completion of such
investigation and remediation, Trustor shall permanently seal or cap all
monitoring wells and test holes to industrial standards in compliance with
Applicable Laws and regulations, remove all associated equipment, and restore
the Property to the extent reasonably possible, which shall include, without
limitation, the repair of any surface damage, including paving, caused by such
investigation or remediation hereunder. Upon reasonable notice and at reasonable
times (except in cases of emergency or imminent threat of harm to human health
or the environment), the Indemnitees (as defined in Section 11.2.7 of this Deed
of Trust) shall have the right but not the obligation to enter upon the Property
to assess any and all aspects of the environmental condition of the Property and
its use, including conducting environmental assessments, audit and sampling
(including, but not limited to soil and groundwater sampling if Trustor has a
reasonable belief that such soil or groundwater may be contaminated) not more
than once a year, except where Trustor has a reasonable belief that a release of
Hazardous Materials or a violation of Environmental Laws has occurred or is
likely to occur, all at the expense of Trustor. Trustor and Trustee shall
cooperate in choosing Consultants to conduct such work and Trustor shall provide
access to the Indemnities and their agents, representatives, consultants and
employees (together, the "Indemnitees" for purposes of this Section 11.2.5) in
connection with such investigations. In the event that Trustor fails to fulfill
its obligations under this Deed of Trust relating to environmental matters,
including this Section 11.2.5, following the expiration of 30 days written
notice by Beneficiary of its intent to invoke its rights under this section,
unless Beneficiary has a reasonable belief that a more immediate response is
required under Environmental Laws, Beneficiary shall have the right to undertake
any action necessary or prudent under Environmental Laws, and shall have the
right to pursue any and all legal theories and remedies provided by law or
contract to enforce the covenants in this Section 11.2 and the other provisions
of this Article 11. Nothing in this
35
Deed of Trust shall be deemed to create, or construed as creating, any liability
of the Indemnitees under Environmental Laws for environmental conditions
relating to the Property.
11.15.6. If Trustor shall become aware of or receive notice or other
communication concerning any actual, alleged, suspected or threatened violation
of any Environmental Law, or Environmental Claim or liability of Trustor for
Environmental Damages in connection with the Property or past or present
activities of any Person thereon, including, but not limited to, notice or other
communication concerning any actual or threatened investigation, inquiry,
lawsuit, claim, citation, directive, summons, proceedings, complaint, notice,
order, writ or injunction, relating to same, then Trustor shall deliver to
Beneficiary, within seven (7) days of the receipt of such notice or
communication by Trustor, a written description of said violation, liability, or
actual or threatened event or condition, together with copies of any documents
evidencing same. Receipt of such notice shall not be deemed to create any
obligation on the part of Beneficiary to defend or otherwise respond to any such
notification.
11.15.7. Trustor agrees to indemnify, reimburse, defend, exonerate, pay
and hold harmless Beneficiary, its successors and assigns, the Holders, and
their respective directors, officers, shareholders, employees, agents,
contractors, subcontractors, experts, licensees, affiliates, lessees, trustees,
and invitees (collectively, the "Indemnitees") from and against any and all
Environmental Claims and Environmental Damages arising in any manner whatsoever
out of Environmental Laws pertaining to the Trustor's operations and activities
and the Land and the activities thereon, whether foreseeable or unforeseeable,
and regardless of when such Environmental Claims arose and Environmental Damages
occurred, except to the extent directly caused by the gross negligence or
willful misconduct of Indemnitees. The indemnity obligations of Trustor
contained in this Section 11.2.7. shall survive the termination, release and/or
reconveyance of this Deed of Trust and the discharge of Trustor's other
obligations hereunder.
ARTICLE 12.
RELEASE
SECTION 12.16. RELEASE. In the event that Trustor is released and
discharged from all of the Secured Obligations pursuant to Section 10.14 of the
Indenture, Beneficiary hereby agrees to reconvey, without warranty, the lien of
this Deed of Trust.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.17. BENEFICIARY'S EXPENSES, INCLUDING ATTORNEY'S FEES.
Regardless of the occurrence of a Default or Event of Default, Trustor agrees to
pay to Beneficiary any and all advances, charges, costs and expenses, including,
without
36
limitation, the reasonable fees and expenses of counsel and any experts or
agents, that Beneficiary may reasonably incur in connection with (i) the
administration of this Deed of Trust, including any amendment thereto or any
workout or restructuring, (ii) the creation, perfection or continuation of the
Lien of this Deed of Trust or protection of its priority or the Trust Estate,
including the discharging of any prior or junior Lien or adverse claim against
the Trust Estate or any part thereof that is not permitted hereby or by the
Indenture, (iii) the custody, preservation or sale of, collection from, or other
realization upon, any of the Trust Estate, (iv) the exercise or enforcement of
any of the rights, powers or remedies of Beneficiary under this Deed of Trust or
under Applicable Laws (including attorneys' fees and expenses incurred by
Beneficiary in connection with the operation, maintenance or foreclosure of the
Lien of this Deed of Trust) or any bankruptcy proceeding or (v) the failure by
Trustor to perform or observe any of the provisions hereof. All such amounts and
all other amounts payable hereunder shall be payable on demand, together with
interest at the Default Rate.
SECTION 13.18. INDEMNITY. Trustor hereby agrees to indemnify and hold
harmless the Indemnitees against (i) any and all transfer taxes, documentary
taxes, assessments or charges made by any Governmental Authority by reason of
the execution and delivery of this Deed of Trust and the other Security
Documents, and (ii) any and all claims, actions, liabilities, costs and expenses
of any kind or nature whatsoever (including reasonable fees and disbursements of
counsel) that may be imposed on, incurred by, or asserted against any of them,
in any way relating to or arising out of this Deed of Trust or any action taken
or omitted by them hereunder, except to the extent that they resulted from the
gross negligence or willful misconduct of any such Indemnitee.
SECTION 13.19. WAIVERS; MODIFICATIONS IN WRITING. No amendment of any
provision of this Deed of Trust (including a waiver thereof or consent relating
thereto) shall be effective unless the same shall be in writing and signed by
Beneficiary and Trustor. Any waiver or consent relating to any provision of this
Deed of Trust shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on Trustor in any case
shall entitle Trustor to any other or further notice or demand in similar
circumstances, except as otherwise provided herein or as required by law.
SECTION 13.20. CUMULATIVE REMEDIES; FAILURE OR DELAY. The rights and
remedies provided for under this Deed of Trust are cumulative and are not
exclusive of any rights and remedies that may be available to Beneficiary under
Applicable Laws, the other Security Documents or otherwise. No failure or delay
on the part of Beneficiary in the exercise of any power, right or remedy under
this Deed of Trust shall impair such power, right or remedy or shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude other or further exercise of such or any other power,
right or remedy.
SECTION 13.21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and, subject to the next sentence, inure to the benefit of Trustor and
37
Beneficiary and their respective successors and assigns. Except as expressly
permitted under the Indenture, Trustor shall not assign or transfer any of its
rights or obligations hereunder without the prior written consent of
Beneficiary. The benefits of this Deed of Trust shall pass automatically with
any assignment of the Secured Obligations (or any portion thereof), to the
extent of such assignment.
SECTION 13.22. INDEPENDENCE OF COVENANTS. All covenants under this Deed
of Trust shall each be given independent effect so that, if a particular action
or condition is not permitted by any such covenant, the fact that it would be
permitted by another covenant or by an exception thereto shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 13.23. CHANGE OF LAW. In the event of the passage, after the date
of this Deed of Trust, of any law changing in any way the laws now in force for
the taxation of mortgages, deeds of trust, or debts secured by mortgages or
deeds of trust (other than laws imposing taxes on income), or the manner of the
collection of any such taxes, so as to affect adversely the rights of
Beneficiary under this Deed of Trust, then an Event of Default shall be deemed
to have occurred under Section 6.1 of the Indenture; provided, however, that no
Event of Default shall be deemed to have occurred (i) if Trustor, within thirty
(30) days after the passage of such law, shall assume the payment of any tax or
other charge so imposed upon Beneficiary for the period remaining until
discharge in full of the Secured Obligations; provided, however, that such
assumption is permitted by Applicable Laws, (ii) if the adverse effect upon
Beneficiary of such tax or other charge is not material, or (iii) if and so long
as Trustor, at its expense, shall contest the amount or validity or application
of any such tax or other charge by appropriate legal proceedings promptly
initiated and conducted in good faith and with due diligence; provided that (A)
neither the Property nor any part thereof the absence of which would have a
material adverse effect on the value of the Property or would have a material
and adverse effect on Trustor's operation or use of the Property will be in
danger of being sold, forfeited, terminated, canceled, or lost as a result of
such contest and (B) Trustor shall have posted such bond or furnished such other
security as may be required by law to release such tax or charge.
SECTION 13.24. NO WAIVER. No waiver by Beneficiary of any Default or
breach by Trustor hereunder shall be implied from any omission by Beneficiary to
take action on account of such Default if such Default persists or is repeated,
no express waiver shall affect any Default other than the Default in the waiver,
and such waiver shall be operative only for the time and to the extent therein
stated. Waivers of any covenant, term or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by Beneficiary to or of any act by Trustor
requiring further consent or approval shall not be deemed to waive or render
unnecessary the consent or approval to or of any subsequent similar act.
SECTION 13.25. NOTICES. All notices and other communications under this
Deed of Trust shall be in writing and shall be personally delivered or sent by
prepaid
38
courier, by overnight, registered or certified mail (postage prepaid) or by
prepaid telex, facsimile or telegram, and shall be deemed given when received by
the intended recipient thereof. Unless otherwise specified in a notice given in
accordance with the foregoing provisions of this Section 13.9, notices and other
communications shall be given to the parties hereto at their respective
addresses (or to their respective telex or facsimile numbers) indicated in
Section 11.2 of the Indenture or, in the case of the Trustee, Schedule 13.9
hereto.
SECTION 13.26. REFERENCES TO FORECLOSURE. References hereto to
"foreclosure" and related phrases shall be deemed references to the appropriate
procedure in connection with Trustee's private power of sale, any judicial
foreclosure proceeding, and any deed given in lieu of any such Trustee's sale or
judicial foreclosure.
SECTION 13.27. JOINDER OF FORECLOSURE. Should Beneficiary hold any other
or additional security for the payment and performance of any Secured
Obligation, its sale or foreclosure, upon any default in such payment or
performance, in the sole discretion of Beneficiary, may be prior to, subsequent
to, or joined or otherwise contemporaneous with any sale or foreclosure
hereunder. Except as otherwise provided in the Indenture, in addition to the
rights herein specifically conferred, Beneficiary, at any time and from time to
time, may exercise any right or remedy now or hereafter given by Applicable Laws
to beneficiaries under deeds of trust generally, or to the holders of any
obligations of the kind hereby secured.
SECTION 13.28. RIGHTS AND OBLIGATIONS OF BENEFICIARY AND TRUSTEE. At any
time or from time to time, without liability therefor and without notice, and
without releasing or otherwise affecting the liability of any Person for payment
of any Secured Obligations, Beneficiary at its sole discretion and only in
writing may subordinate the Liens or either of them, or charge hereof to the
extent not prohibited by the Indenture. Beneficiary and Trustee shall, however,
promptly upon Trustor's request from time to time, join in the following actions
(including the execution and delivery of documents) as Trustor determines are
reasonably necessary for the development, use and operation of the Trust Estate:
(i) the making of any map or plat of the Property, (ii) the granting, creating,
amending and modifying of any customary easements, covenants, conditions and
restrictions with respect to the Property and (iii) the application for and
prosecution of any development, building, use and similar permits and land use
and utility approvals and installations regarding the Property; provided,
however, that Beneficiary and Trustee shall not be required to join in or take
any such action (a) while an Event of Default exists, (b) to the extent such
action would impair the Liens of this Deed of Trust or the first priority
thereof or (c) to the extent prohibited by the Indenture. Any such request shall
be accompanied by an Officers' Certificate (as defined in the Indenture). Upon
written request of Beneficiary and surrender of this Deed of Trust to Trustee
for cancellation, and upon payment to Trustee of its reasonable fees and
expenses actually incurred, Trustee shall cancel and reconvey this Deed of
Trust.
39
SECTION 13.29. COPIES. Trustor will promptly give to Beneficiary copies
of all notices of violations relating to the Property that Trustor receives from
any Governmental Authority.
SECTION 13.30. SUBORDINATION. At the option of Beneficiary, this Deed of
Trust shall become subject and subordinate in whole or in part (but not with
respect to priority of entitlement to any insurance proceeds, damages, awards,
or compensation resulting from damage to the Property or condemnation or
exercise of power of eminent domain), to any and all easements, contracts of
sale and/or any and all leases of all or any part of the Property upon the
execution by Beneficiary and recording thereof in the official records of Tunica
County, Mississippi of a unilateral declaration to that effect. Beneficiary may
require the issuance of such title insurance endorsements to the Title Policy in
connection with any such subordination as Beneficiary, in its judgment, shall
determine are appropriate, and Trustor shall be obligated to pay any cost or
expense incurred in connection with the issuance thereof.
SECTION 13.31. SECURITY INSTRUMENTS. Trustor covenants and agrees that if
Beneficiary at any time holds additional security for any Secured Obligations
secured hereby, it may enforce the terms thereof or otherwise realize upon the
same, at its option, either before or concurrently herewith or after a sale is
made hereunder, and may apply the proceeds upon the Secured Obligations without
affecting the status or of waiving any right to exhaust all or any other
security, including the security hereunder, and without waiving any breach or
Default or any right or power whether exercised hereunder or contained herein or
in any such other security.
SECTION 13.32. SUITS TO PROTECT PROPERTY. Trustor covenants and agrees to
appear in and defend any action or proceeding the consequence of which, if
successful, would be that the Liens, or either of them, of this Deed of Trust
would not satisfy the requirements as to extent, perfection or priority set
forth in the Indenture; and to pay all reasonable costs and expenses actually
incurred by Trustee and Beneficiary, including cost of evidence of title and
attorneys' fees in a reasonable sum, in any such action or proceeding in which
Beneficiary and/or Trustee may appear or be made a party.
SECTION 13.33. TRUSTOR WAIVER OF RIGHTS. Trustor waives the benefit of
all laws now existing or that hereafter may be enacted providing for (i) any
appraisement before sale of any portion of the Trust Estate, and (ii) the
benefit of all laws that may be hereafter enacted in any way extending the time
for the enforcement of the Secured Obligations or creating or extending a period
of redemption from any sale made in collecting said debt. To the full extent
Trustor may do so, Trustor agrees that Trustor will not at any time insist upon,
plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, valuation, stay, extension or redemption,
and Trustor, for Trustor, Trustor's heirs, devisees, representatives, successors
and assigns, and for any and all Persons ever claiming any interest in the Trust
Estate, to the extent permitted by Applicable Laws, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, and
marshaling in the event of
40
foreclosure of the liens hereby created. If any law referred to in this Section
13.17. and now in force, of which Trustor, Trustor's heirs, devisees,
representatives, successors and assigns or other Person might take advantage
despite this Section 13.17, shall hereafter be repealed or cease to be in force,
such law shall not thereafter be deemed to preclude the application of this
Section 13.17. To the extent permitted by Applicable Laws, Trustor expressly
waives and relinquishes any and all rights and remedies which Trustor may have
or be able to assert by reason of the laws of the State of Mississippi
pertaining to the rights and remedies of sureties.
SECTION 13.34. CHARGES FOR STATEMENTS. Trustor agrees to pay
Beneficiary's customary charge, to the maximum amount permitted by Applicable
Laws, for any statement regarding the Secured Obligations requested by Trustor
or in its behalf.
SECTION 13.35. COMPLETE AGREEMENT. This Deed of Trust, together with the
exhibits and schedules hereto, and the other Security Documents, is intended by
the parties as a final expression of their agreement regarding the subject
matter hereof and is intended as a complete and exclusive statement of the terms
and conditions of such agreement.
SECTION 13.36. PAYMENTS SET ASIDE. Notwithstanding anything to the
contrary herein contained, this Deed of Trust, the Secured Obligations and the
Lien and Security Interest of this Deed of Trust shall continue to be effective
or be reinstated, as the case may be, if at any time any payment, or any part
thereof, of any or all of the Secured Obligations is rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be restored
or returned by Beneficiary in connection with any bankruptcy, reorganization or
similar proceeding involving Trustor, any other party liable with respect to the
Secured Obligations or otherwise, if the proceeds of the Trust Estate are
required to be returned by Beneficiary under any such circumstances, or if
Beneficiary reasonably elects to return any such payment or proceeds or any part
thereof in its discretion, all as though such payment had not been made or such
proceeds not been received. Without limiting the generality of the foregoing, if
prior to any such rescission, invalidation, declaration, restoration or return,
this Deed of Trust shall have been terminated, released and/or reconveyed and
the Lien and Security Interest or any of the Trust Estate shall have been
released or terminated in connection with such termination, release and/or
reconveyance, this Deed of Trust and the Lien and Security Interest and such
portion of the Trust Estate shall be reinstated in full force and effect, and
such prior termination, release and/or reconveyance shall not diminish,
discharge or otherwise affect the obligations of Trustor in respect of the
amount of the affected payment or application of proceeds, the Lien, the
Security Interest or such portion of the Trust Estate.
SECTION 13.37. SUBSTITUTION. Beneficiary may at any time, without giving
notice to Trustor or the original or successor Trustee, and without regard to
the willingness or inability of any original or successor Trustee to execute
this trust, appoint another Person or succession of Persons to act as Trustee,
and such appointee in the execution of this trust shall have all the powers
vested in and obligations imposed upon
41
Trustee. Should Beneficiary be a corporation or unincorporated association, then
any officer thereof may make such appointment.
SECTION 13.38. CHOICE OF FORUM. All actions or proceedings arising in
connection with this Deed of Trust shall be tried and litigated in state or
Federal courts located in Tunica County, State of Mississippi, unless such
actions or proceedings are required to be brought in another court to obtain
subject matter jurisdiction over the matter in controversy. TRUSTOR WAIVES ANY
RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, TO ASSERT THAT
IT IS NOT SUBJECT TO THE JURISDICTION OF SUCH COURTS OR TO OBJECT TO VENUE TO
THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 13.22.
SERVICE OF PROCESS, SUFFICIENT FOR PERSONAL JURISDICTION IN ANY ACTION AGAINST
TRUSTOR, MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
TO ITS ADDRESS INDICATED IN SECTION 13.9 HEREOF.
SECTION 13.39. REGULATORY MATTERS. Whenever in this Deed of Trust a right
is given to Beneficiary, which right is affected by Applicable Gaming Laws or
Liquor Laws or the enforcement of which is subject to Applicable Gaming Laws or
Liquor Laws, the enforcement of any such right shall be subject to Applicable
Gaming Laws and Liquor Laws and approval, if so required, of the applicable
Gaming Authorities or authorities enforcing the Liquor Laws.
SECTION 13.40. GUARANTOR WAIVERS. If and to the extent that Trustor (for
the purposes of this Section 13.24, "Guarantor") would be deemed or construed to
be a guarantor or surety under Applicable Law with respect to its obligations
hereunder, Guarantor hereby agrees as follows:
13.40.1. Guarantor expressly agrees that until each and every term,
covenant and condition of this Deed of Trust is fully performed, Guarantor shall
not be released by any act or event which, except for this provision of this
Deed of Trust might be deemed a legal or equitable discharge or exoneration of a
surety, or because of any waiver, extension, modification, forbearance or delay
or other act or omission of Beneficiary or its failure to proceed promptly or
otherwise as against any Issuer or any other Guarantor, as the case may be
(individually and collectively, in its or their capacity as the entity or
entities the obligations of which are guaranteed hereunder by Guarantor, the
"Principal") or Guarantor, or because of any action taken or omitted or
circumstance which might vary the risk or affect the rights or remedies of
Guarantor as against the Principal, or because of any further dealings between
the Principal and Beneficiary, whether relating to this Deed of Trust or
otherwise. Guarantor hereby expressly waives and surrenders any defense to
Guarantor's liability under this Deed of Trust based upon any of the foregoing
acts, omissions, things, agreements, waivers or any of them. It is the purpose
and intent of this Deed of Trust that the obligations of Guarantor under it
shall be
42
absolute and unconditional under any and all circumstances, subject to and in
accordance with the terms and conditions of this Deed of Trust.
13.40.2. Without in any way limiting the provisions of Section 13.24.1,
Guarantor waives:
13.40.2.1. all statutes of limitations as a defense to any action
or proceeding brought against Guarantor by Beneficiary, to the fullest extent
permitted by Applicable Laws;
13.40.2.2. any right it may have to require Beneficiary to proceed
against the Principal or pursue any other remedy in Beneficiary's power to
pursue, it being acknowledged and agreed that the obligations of Guarantor
hereunder are independent of the obligations of the Principal hereunder, and
Beneficiary shall not be required to make any demand upon, exercise any right to
declare a default by, or proceed against, the Principal prior to proceeding
against Guarantor to the full extent of Guarantor's obligations hereunder;
13.40.2.3. any defense based on any legal disability of the
Principal and any discharge, release or limitation of the liability of the
Principal to Beneficiary, whether consensual or arising by operation of law or
any bankruptcy, reorganization, receivership, insolvency, or debtor-relief
proceeding, or from any other cause, or any claim that Guarantor's obligations
exceed or are more burdensome than those of the Principal;
13.40.2.4. except as specifically provided herein or in the
Indenture or any Security Document, all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance of this Deed of Trust and of the existence, creation, or
incurring of new or additional indebtedness, and demands and notices of every
kind;
13.40.2.5. any defense based on or arising out of any defense that
the Principal may have to the payment or performance of any obligation set forth
in this Deed of Trust (other than payment or performance in full); and
13.40.2.6. until all obligations under this Deed of Trust have
been paid and performed in full, all rights of subrogation and all rights to
enforce any remedy that Guarantor may have against the Principal, all regardless
of whether Guarantor may have made any payments to Beneficiary.
13.40.3. Guarantor assumes full responsibility for keeping informed of
the financial condition and business operations of the Principal and all other
circumstances affecting the Principal's ability to pay for and perform its
obligations, and agrees that Beneficiary shall have no duty to disclose to
Guarantor any information which Beneficiary may receive about the Principal's
financial condition, business operations, or any other circumstances bearing on
its ability to perform.
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13.40.4. Notwithstanding anything to the contrary provided elsewhere
herein, in no event shall Guarantor have any liability under this Deed of Trust
beyond its interest in the portion of the Property that is owned by Guarantor,
and in no event shall Guarantor's obligations hereunder be enforced against any
property of Guarantor other than its interest in such portion of the Property.
SECTION 13.41. WAIVER OF TRIAL BY JURY. TRUSTOR AND BENEFICIARY WAIVE THE
RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS DEED OF TRUST OR ANY OTHER
SECURITY DOCUMENT OR ANY OTHER ACTION ARISING OUT OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION
OR ACTIONS.
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IN WITNESS WHEREOF, Trustor has caused this Deed of Trust to be executed
as of the day and year first above written.
BARDEN MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company
By: /s/ Don H. Barden
--------------------------------
Name: Don H. Barden
--------------------------------
Title: Manager
--------------------------------
45
ACKNOWLEDGMENT
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 6th day of December, 2001, within my
jurisdiction, the within named Don Barden, duly identified before me, who
acknowledged to me that he is the Manager of BARDEN MISSISSIPPI GAMING, LLC, a
Mississippi manager-managed limited liability company, and that for and on
behalf of said limited liability company and as its act and deed, he executed
the above and foregoing instrument, after first having been duly authorized by
said limited liability company so to do.
Janis I. Rohrer
--------------------------------
Notary Public
My commission expires:
[Seal]
--------------------
(Affix official seal, if applicable.)
46
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 11/30/07 | | 9 | | | | | None on these Dates |
| Filed on: | | 1/29/02 |
| | 12/6/01 | | 1 | | 2 |
| | 7/2/01 | | 24 |
| List all Filings |
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Filing Submission 0000950137-02-000403 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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