Exhibit 10.59


 


LEASEHOLD DEED OF TRUST


 


THIS LEASEHOLD DEED OF TRUST
(this “Deed of Trust”) made the
19th day of December, 2002, by S&W OF LAS
VEGAS, L.L.C., a Delaware limited liability company, having an
address at c/o The Smith & Wollensky Restaurant Group, Inc., 1114 First
Avenue, New York, New York 10021 (the “Grantor”)
to FIRST AMERICAN TITLE COMPANY OF NEVADA,
INC., as trustee, having an address at 3760 Pecos-McLeod, #7, Las
Vegas, Nevada 89121 (the “Trustee”),
for the benefit of MORGAN STANLEY DEAN WITTER
COMMERCIAL FINANCIAL SERVICES, INC., a Delaware corporation, having
an address at 825 Third Avenue, New York, New York 10022 (the  “Beneficiary”).


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, the
Grantor is the owner of a leasehold estate in the premises described in Exhibit
A attached hereto (the “Premises”)
under and pursuant to the provisions of the lease described in Exhibit A-1
attached hereto (the “Subject Lease”);


 


WHEREAS, the
Grantor is a party to a certain Term Loan Agreement of even date herewith among
the Grantor, The Smith & Wollensky Restaurant Group, Inc., Dallas S&W,
L.P. and the Beneficiary (such agreement and any and all amendments,
modifications, extensions, renewals or replacements thereto, is referred to
herein as the  “Loan Agreement”; all capitalized terms used
herein which are not defined herein shall have the meanings given to them in
the Loan Agreement);


 


WHEREAS,
subject to the terms and conditions of the Loan Agreement, the Beneficiary has
agreed to make a certain loan (the “Loan”),
which Loan is evidenced by a Promissory Note of even date herewith in the
principal  amount of One Million
Nine Hundred Thousand and 00/100 Dollars ($1,900,000.00) [as the same may be
amended or restated from time to time, the “Note”]; and


 


WHEREAS, it is
a condition to the obligation of the Beneficiary to make the Loan that the
Grantor execute and deliver this Deed of Trust.


 


NOW THEREFORE,
TO SECURE PAYMENT AND PERFORMANCE OF THE FOLLOWING OBLIGATIONS (collectively,
the “Obligations”):


 


(i)            Prompt payment and
performance of all obligations of the Grantor under, with respect to and
arising in connection with the Loan Agreement, the Note, this Deed of Trust and
the other Loan Documents (as herein defined), including without limitation, all
obligations to the Beneficiary for fees, costs and expenses, including
attorneys’ fees, as provided herein or therein;


 


(ii)           Payment of all sums
advanced by the Beneficiary or the Trustee to protect the Trust Property (as
defined herein), with interest thereon at the Default Rate (as defined herein);


 


(iii)          All renewals,
extensions, amendments, restatements and changes of, or substitutions or
replacements for, all or any part of any of the obligations described in clause
(i) hereof; and


 


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(iv)          Payment of all sums
advanced and costs and expenses incurred by the Beneficiary (or by the Trustee)
in connection with any of the foregoing obligations or in connection with the
perfection and the security therefor, whether such advances, costs and expenses
were made or incurred at the request of the Grantor or the Beneficiary (or the
Trustee);


 


THE GRANTOR BY THESE PRESENTS
HEREBY IRREVOCABLY (i) grants, gives, bargains, sells, alienates, enfeoffs,
conveys, confirms, sets over, delivers, assigns and transfers to the Trustee
and its successors and assigns, IN TRUST FOREVER, WITH POWER OF SALE, pursuant
to this Deed of Trust and applicable law, for the benefit of the Beneficiary,
all right, title and interest of the Grantor now owned, or hereafter acquired,
in and to the property, rights and interests hereinafter described in granting
clauses (a) through (l) [collectively, the “Trust
Property”] that are real property (collectively, the “RP Collateral”)  under the laws of the state of Nevada (subject, however, to the
rights of the Beneficiary in any of the Rents and Leases (as such terms are
hereinafter defined)) (ii) assigns and transfers to the Beneficiary all of the
Rents and other benefits derived from any Leases;  and (iii) grants a security interest to the Beneficiary in the
Trust Property (that are now or hereafter existing) to the full extent that the
Trust Property may be subject to the Uniform Commercial Code of the state or
states where the Trust Property is situated (collectively, the “UCC Collateral”):


 


(a)           (i) the Subject
Lease and the leasehold estate in the Premises created thereunder; (ii) the
buildings and improvements owned by the Grantor now or hereafter located on the
Premises (the “Improvements”);
(iii) all modifications, extensions and renewals of the Subject Lease and all
credits, deposits, options, purchase options, privileges and rights of the
Grantor under the Subject Lease, including, but not limited to, the right, if
any, to renew or extend the Subject Lease for a succeeding term or terms, or to
acquire fee title to or other interest in all or any portion of the Premises or
to the Improvements; and (iv) all of the Grantor’s rights and remedies at any
time arising under or pursuant to Section 365(h) of the Bankruptcy Code,
11 U.S.C. § 101 et  seq. (the “Bankruptcy Code”), including, without limitation, all of the
Grantor’s rights thereunder to remain in possession of the Premises and the
Improvements;


 


(b)           all of the estate,
right, title, claim or demand of any nature whatsoever of the Grantor, either
in law or in equity, in possession or expectancy, in and to the Premises or any
part thereof;


 


(c)           all easements,
rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights and powers, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments, and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises (including, without limitation, any and all development
rights, air rights or similar or comparable rights of any nature whatsoever now
or hereafter appurtenant to the Premises or now or hereafter transferred to the
Premises);


 


(d)           all machinery,
apparatus, equipment, fittings, fixtures and other property of every kind and
nature whatsoever and all additions thereto and renewals and replacements
thereof, and all substitutions therefor now owned or hereafter acquired by the
Grantor, or in which the Grantor has or shall have an interest, now or
hereafter located upon or in, or attached to, any portion of the Premises or
appurtenances thereto, or located off-site from the Premises but purchased with
the proceeds of the Loan and used or usable in connection with the present or
future operation and occupancy of the Premises and


 


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all building equipment,
materials and supplies of any nature whatsoever owned by the Grantor, or in
which the Grantor has or shall have an interest, now or hereafter located upon
the Premises and whether stored at the Premises or off-site if used in
connection with such operation and occupancy (collectively, the “Equipment”), and the right, title and
interest of the Grantor in and to any of the Equipment which may be subject to
any security agreements (as defined in the Uniform Commercial Code of the state
of Nevada), superior in lien to the lien of this Deed of Trust and all proceeds
and products of any of the above;


 


(e)           all awards or
payments, including interest thereon, and the right to receive the same, which
may be made with respect to the Premises, whether from the exercise of the
right of eminent domain (including any transfer made in lieu of the exercise of
said right), or for any other injury to or decrease in the value of the Premises;


 


(f)            all leases and
other agreements (other than the Subject Lease) affecting the use or occupancy
of the Premises now or hereafter entered into (the “Leases”) and the right to receive and apply the rents, issues
and profits of the Premises (the “Rents”)
to the payment of the Obligations;


 


(g)           all right, title and
interest of the Grantor in and to (i) all contracts from time to time
executed by the Grantor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy, sale or
financing of the Premises or any part thereof and all agreements relating to
the purchase or lease of any portion of the Premises or any property which is
adjacent or peripheral to the Premises, together with the right to exercise
such options and all leases of Equipment, (ii) all consents, licenses (to
the extent such grant is permitted by law), building permits, certificates of
occupancy and other governmental approvals relating to construction,
completion, occupancy, use or operation of the Premises or any part thereof,
and (iii) all drawings, plans, specifications and similar or related items
relating to the Premises;


 


(h)           all trade names,
trademarks, logos, copyrights, good will and books and records relating to or used
in connection with the operation of the Premises or any part thereof; all
general intangibles related to the operation of the Premises now existing or
hereafter arising;


 


(i)            all accounts and
revenues arising from the operation of the Premises, including, without
limitation, (i) any right to payment now existing or hereafter arising for
goods sold or for services rendered, whether or not yet earned by performance,
arising from the operation of the Premises and (ii) all rights to payment
from any consumer credit-charge card organization or entity, including, without
limitation, payments arising from the use of the American Express Card, the
Visa Card, the Carte Blanche Card, the Mastercard, the Discover Card or any
other credit card, including those now existing or hereafter created,
substitutions therefor, proceeds thereof (whether cash or non-cash, movable or
immovable, tangible or intangible) received upon the sale, exchange, transfer,
collection or other disposition or substitution thereof and any and all of the
foregoing and proceeds therefrom;


 


(j)            all proceeds of and
any unearned premiums on any insurance policies covering the Premises,
including, without limitation, the right to receive and apply the proceeds of
any insurance, judgments, or settlements made in lieu thereof, for damage to
the Premises and all refunds of Taxes (as herein defined);


 


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(k)           the right, in the
name and on behalf of the Grantor, to appear in and defend any action or
proceeding brought with respect to the Premises and to commence any action or
proceeding to protect the interest of the Beneficiary in the Premises; and


 


(l)            all rights and
estates in reversion or remainder to any existing and future corrections,
modifications, supplements or amendments to, or renewals, extensions or
ratifications of, or replacements or substitutions for, or accessions,
additions or attachments to, or proceeds (both cash and non-cash) of, any of
the foregoing, and all privileges and appurtenances thereunto belonging.


 


IN FURTHERANCE
OF THE FOREGOING GRANTS, BARGAINS, SALES, ASSIGNMENTS, TRANSFERS AND
CONVEYANCES, AND TO PROTECT THE TRUST PROPERTY AND THE SECURITY GRANTED BY THIS
DEED OF TRUST, THE GRANTOR COVENANTS AND AGREES WITH AND REPRESENTS AND
WARRANTS TO THE BENEFICIARY AS FOLLOWS:


 


1.             Payment of
Obligations.


 


The Grantor
will pay the Obligations at the time and in the manner provided for its payment
in the Loan Agreement, the Note and the other Loan Documents.


 


2.             Habendum and
Warranty of Title.


 


The Grantor
represents that the Grantor is the lawful owner of the RP Collateral with good
right and authority to encumber and convey it, and that the RP Collateral is
free and clear of all liens, claims and encumbrances, subject to the terms and
condition of the Subject Lease and the other title exceptions expressly set
forth in the title insurance policy issued to the Beneficiary in connection
with the Loan and insuring the lien of this Deed of Trust.  The Grantor hereby binds the Grantor and the
Grantor’s successors and assigns to forever WARRANT and DEFEND the Trust
Property and every part of it unto the Trustee, his successors or substitutes
in the Trust, and his or their assigns, against the claims and demands of every
person whomsoever lawfully claiming or to claim it or any part of it (such
warranty to supersede any provision contained in this Deed of Trust limiting
the liability of the Grantor), subject to the terms and condition of the
Subject Lease and the other title exceptions expressly set forth in the title
insurance policy issued to the Beneficiary in connection with the Loan and
insuring the lien of this Deed of Trust. 
The Grantor further represents and warrants (i) the Subject Lease is in
full force and effect and has not been modified in any manner whatsoever, (ii)
there are no defaults under the Subject Lease and no event has occurred, which
but for the passage of time, or notice, or both, would constitute a default
under the Subject Lease, (iii) all rents, additional rents and other sums due
and payable under the Subject Lease have been paid in full, and (iv) no action
has commenced and no notice has been given or received for the purpose of
terminating the Subject Lease.


 


3.             Insurance.


 


At all times
prior to the termination of this Deed of Trust, the Grantor (i) will keep
the Improvements and the Equipment insured against loss or damage by fire,
standard extended coverage perils and such other hazards as the Beneficiary
shall from time to time require in amounts approved by the Beneficiary on a
so-called “special form” policy, which amounts shall in no event be less than
100%


 


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of the full insurable
replacement value of the Improvements and the Equipment and shall be sufficient
to meet all applicable co-insurance requirements and will maintain such other
forms of insurance coverage with respect to the Trust Property as the
Beneficiary shall require, and (ii) will maintain rental and business
interruption insurance and such other insurance as the Beneficiary may from
time to time require, in amounts approved by the Beneficiary, including,
without limitation, comprehensive general public liability insurance covering
injury and damage to persons and property naming the Beneficiary as an additional
insured.  All policies of insurance (the
“Policies”) shall be issued by
insurers having a minimum policy holders rating of “A-” per the latest rating
publication of Property and Casualty Insurers by A.M. Best Company and shall
have a financial size category of not less than IX, and who are lawfully doing
business in the state of Nevada and are otherwise acceptable in all respects to
the Beneficiary.  All Policies shall
include a provision that such Policy (a) will not be cancelled, altered or in
any way limited in coverage or reduced in amount unless the Beneficiary is
notified in writing at least thirty (30) days prior to such cancellation or
change and (b) shall contain a mortgagee non-contribution clause endorsement or
an equivalent endorsement satisfactory to the Beneficiary naming the
Beneficiary as the person to which all payments made by the insurer thereunder
shall be paid and shall otherwise be in form and substance satisfactory in all
respects to the Beneficiary.  Blanket
insurance policies shall not be acceptable for the purposes of this Paragraph 3
unless otherwise approved to the contrary by the Beneficiary.  The Grantor shall pay the premiums for the
Policies as the same become due and payable. 
At the request of the Beneficiary, the Grantor will deliver the Policies
to the Beneficiary.  Not later than ten
(10) days prior to the expiration date of each of the Policies, the Grantor
will deliver to the Beneficiary a renewal policy or policies marked “premium
paid” or accompanied by other evidence satisfactory to the Beneficiary that the
Policies are in effect and the premiums have been paid.  If at any time the Beneficiary is not in
receipt of written evidence that all insurance required hereunder is in full
force and effect, the Beneficiary shall have the right without notice to the
Grantor to take such action as the Beneficiary deems necessary to protect its
interest in the Trust Property, including, without limitation, the obtaining of
such insurance coverage as the Beneficiary in its sole discretion deems
appropriate, and all expenses incurred by the Beneficiary in connection with
such action or in obtaining such insurance and keeping it in effect shall be
paid by the Grantor to the Beneficiary upon demand.  The Grantor shall at all times comply with and shall cause the
Improvements and Equipment and the use, occupancy, operation, maintenance,
alteration, repair and restoration thereof to comply with the terms,
conditions, stipulations and requirements of the Policies.  If the Premises, or any portion of the
Improvements or the Equipment, is located in a Federally designated “special
flood hazard area,” in addition to the other Policies required under this
Paragraph 3, a flood insurance policy shall be delivered by the Grantor to the
Beneficiary.  If no portion of the
Premises is located in a Federally designated “special flood hazard area” such
fact shall be substantiated by a certificate in form satisfactory to the
Beneficiary from a licensed surveyor, appraiser or professional engineer or other
qualified person.  If the Trust Property
shall be damaged or destroyed, in whole or in part, by fire or other property
hazard or casualty, the Grantor shall give prompt notice thereof to the
Beneficiary.  Sums paid to the
Beneficiary by any insurer may be retained and applied by the Beneficiary
toward payment of the Obligations, or held as cash collateral therefor, whether
or not then due and payable in such order, priority and proportions as the
Beneficiary in its discretion shall deem proper or, at the discretion of the
Beneficiary, the same may be paid, either in whole or in part, to the Grantor
for such purposes as the Beneficiary shall designate.  If the Beneficiary shall receive and retain such insurance proceeds,
the lien of this Deed of Trust shall be reduced only by the amount thereof
received and retained by the Beneficiary and actually applied by the
Beneficiary in reduction of the Obligations. 
This Paragraph 3 is subject to the terms of the Subject Lease.


 


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4.             Payment of
Taxes, etc.


 


(a)           To the extent that
the Grantor is obligated to pay the same under the Subject Lease or under
applicable law, the Grantor shall pay all taxes, assessments, water rates,
sewer rents and other charges, including vault charges and license fees for the
use of vaults, chutes and similar areas adjoining the Premises, now or
hereafter levied or assessed against the Trust Property and the Premises (the “Taxes”) prior to the date upon which any
fine, penalty, interest or cost may be added thereto or imposed by law for the
nonpayment thereof, and the Grantor shall deliver to the Beneficiary, upon
request, receipted bills, canceled checks and other evidence satisfactory to
the Beneficiary evidencing the payment of the Taxes prior to the date upon
which any fine, penalty, interest or cost may be added thereto or imposed by
law for the nonpayment thereof.


 


(b)           After prior notice
to the Beneficiary, in the case of any material item, the Grantor, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Taxes, provided that (i) no
default shall have occurred and shall be continuing under the Note or this Deed
of Trust, (ii) the Grantor is permitted to do so under the provisions of the
Subject Lease, (ii) such proceeding shall suspend the collection of the
contested Taxes from the Grantor and from the Trust Property, (iv) such proceeding
shall be permitted under and be conducted in accordance with the provisions of
any other instrument to which the Grantor or the Trust Property is subject and
shall not constitute a default thereunder, (v) neither the Trust Property nor
any part thereof nor any interest therein will in the opinion of the
Beneficiary be in danger of being sold, forfeited, terminated, canceled or
lost, and (vi) the Grantor shall have set aside in an interest-bearing account
with the Beneficiary, and otherwise in a manner satisfactory to the
Beneficiary, adequate cash reserves for the payment of the contested Taxes,
together will all interest and penalties thereon, or in the alternative the
Grantor shall have furnished such security as may be required in the
proceeding, or as may otherwise be requested or required by the Beneficiary to
insure the payment of the contested Taxes, together with all interest and
penalties thereon, and, provided further, that if at any time the Beneficiary
determines, in its sole and absolute discretion, that payment of any tax,
assessment or other charge shall become necessary to prevent the delivery of a
tax deed conveying the Trust Property or any portion thereof because of
non-payment of any such sums, then the Grantor shall pay or cause to be paid
the sums in sufficient time to prevent the delivery of such tax deed.


 


(c)           If a default shall
occur under the Note or this Deed of Trust either prior to, or after,
initiating said proceeding, the Beneficiary shall have the right to either
initiate or continue said proceeding, as the case may be, either in its own
name or as agent of the Grantor.  The
Grantor shall cooperate with the Beneficiary and make available to the
Beneficiary upon demand any and all information, and execute any documents or
pleadings, which the Beneficiary may reasonably require.  The Beneficiary shall then conduct said
proceeding in a manner it deems appropriate, and at its own expense, subject to
any right of reimbursement from the Grantor in accordance with the provisions
of this Deed of Trust.


 


5.             Escrow Fund.


 


To the extent
that the Grantor is obligated to pay the Taxes under the Subject Lease or under
applicable law, the Grantor will, at the option of the Beneficiary, pay to the
Beneficiary on the first


 


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day of each calendar month
one-twelfth of an amount (the “Escrow Fund”)
which would be sufficient to pay the Taxes payable, or estimated by the
Beneficiary to be payable, during the ensuing twelve (12) months.  The Beneficiary will apply the Escrow Fund
to the payment of Taxes which are required to be paid by the Grantor pursuant
to the provisions of this Deed of Trust. 
If the amount of the Escrow Fund shall exceed the amount of the Taxes
payable by the Grantor pursuant to the provisions of this Deed of Trust, the
Beneficiary shall, in its discretion, (a) return any excess to the
Grantor, (b) credit such excess against future payments to be made to the
Escrow Fund or (c) credit such excess against the Debt in such priority and
proportions as the Grantor in its sole discretion shall deem proper.  In returning such excess, the Beneficiary
may deal with the person shown on the records of the Beneficiary to be the
owner of the Trust Property.  If the
Escrow Fund is not sufficient to pay the Taxes, as the same become payable, the
Grantor shall pay to the Beneficiary, upon request, an amount which the
Beneficiary shall estimate as sufficient to make up the deficiency.  Any amounts in the Escrow Fund may not be
commingled with the general funds of the Beneficiary and shall constitute
additional security for the Obligations and shall bear interest.


 


6.             Condemnation.


 


Notwithstanding any taking of all or any portion of the Trust Property
by any public or quasi-public authority through eminent domain or otherwise,
the Grantor shall continue to pay the Obligations at the times and in the
manner provided therefor in the Note, this Deed of Trust and the other Loan
Documents, and the Obligations shall not be reduced until any award or payment
therefor shall have been actually received and applied by the Beneficiary to
the reduction of the Obligations.  The
Beneficiary may hold such award or payment 
as cash collateral for the Obligations and/or apply all or any of the
same to the reduction of the Obligations whether or not then due and payable in
such order, priority and proportions as the Beneficiary in its discretion shall
deem proper.  If the Trust Property is
sold, through foreclosure or otherwise, prior to the receipt by the Beneficiary
of such award or payment, the Beneficiary shall have the right, whether or not
a deficiency judgment shall have been sought, recovered or denied with respect
to the Obligations, to receive such award or payment, or a portion thereof
sufficient to pay the Obligations, whichever is less.  The Grantor shall file and prosecute its claim or claims for any
such award or payment in good faith and with due diligence and cause the same
to be collected and paid over to the Beneficiary.  The Grantor hereby irrevocably authorizes and empowers the
Beneficiary, in the name of the Grantor or otherwise, to collect and receipt
for any such award or payment and to file and prosecute such claim or
claims.  Although it is hereby expressly
agreed that the same shall not be necessary in any event, the Grantor shall,
upon demand of the Beneficiary, make, execute and deliver any and all
assignments and other instruments sufficient for the purpose of assigning any
such award or payment to the Beneficiary, free and clear of any encumbrances of
any kind or nature whatsoever.


 


7.             Leases and Rents.


 


(a)           Grantor hereby
absolutely and unconditionally assigns, sells, transfers and conveys all of the
right, title and interest in and to all Leases and all renewals, replacements
and guarantees thereof along with all of the Rents to Beneficiary.  This assignment is absolute in nature and
not an assignment for additional security only.  Subject to the terms of this Paragraph 7, the Beneficiary waives
the right to enter the Premises for the purposes of collecting the Rents, and
grants the Grantor the right to collect the Rents.  The Grantor shall hold the Rents, or an amount sufficient to
discharge all current sums due in


 


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respect of the Obligations in
trust for use in payment of the Obligations. 
The right of the Grantor to collect the Rents may be revoked by the
Beneficiary without notice upon any default under the terms of the Note or this
Deed of Trust.  Following such
revocation, the Beneficiary may retain and apply the Rents toward payment of
the Obligations,  in such order,
priority and proportions as the Beneficiary, in its discretion, shall deem
proper, or to the operation, maintenance and repair of the Trust Property, and
irrespective of whether the Beneficiary shall have commenced any sale or
foreclosure of this Deed of Trust or shall have applied or arranged for the
appointment of a receiver.  The Grantor
shall not, without the consent of the Beneficiary, make, or suffer to be made,
any Leases or modify or cancel any Leases, or accept prepayments of
installments of the Rents for a period of more than one (1) month in advance or
further assign the whole or any part of the Rents.  Notwithstanding the foregoing, the Beneficiary will not
unreasonably withhold its consent to the Grantor making a new Lease or renewing
an existing Lease provided that (i) no Event of Default has occurred hereunder
and (ii) such new or renewed Lease is (a) for actual occupancy, (b) at market
rents, (c) for a reputable use as reasonably determined by the Beneficiary and
(d) made pursuant to documentation in form and substance satisfactory in all
respect to the Beneficiary.  The Grantor
shall (a) fulfill or perform each and every provision of the Leases on the part
of the Grantor to be fulfilled or performed, (b) promptly send copies of all
notices of default which the Grantor shall send or receive under the Leases to
the Beneficiary, and (c) enforce the performance or observance of the
provisions thereof by the tenants thereunder. 
The Grantor shall from time to time, but not less frequently than once
every 180 days, provide to the Beneficiary a complete and detailed leasing
status report with respect to the Improvements, which leasing status report
shall be in form and substance satisfactory in all respects to the
Beneficiary.  In addition to the rights
which the Beneficiary may have herein, in the event of any default under this
Deed of Trust, the Beneficiary, at its option, may require the Grantor to pay
monthly in advance to the Beneficiary, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of such
part of the Premises as may be in possession of the Grantor.  Upon default in any such payment, the
Grantor will vacate and surrender possession of the Premises to the
Beneficiary, or to such receiver, and, in default thereof, the Grantor may be
evicted by summary proceedings or otherwise. 
Nothing contained in this Paragraph shall be construed as imposing on
the Beneficiary any of the obligations of the lessor under the Leases or of a
“mortgagee in possession” (or equivalent).


 


(b)           The Grantor
acknowledges and agrees that, upon recordation of this Deed of Trust, the
Beneficiary’s interest in the Rents shall be deemed to be fully perfected,
“choate” and enforced as to the Grantor and all third parties, including
without limitation any subsequently appointed trustee in any case under the
Bankruptcy Code (as hereinafter defined), without the necessity of (i)
commencing an action for the sale or foreclosure of the Trust Property, (ii)
furnishing notice to the Grantor or tenants under the Leases, (iii) making
formal demand for the Rents, (iv) taking possession of the Premises, (v)
obtaining the appointment of a receiver of the rents and profits of the
Premises, (vi) sequestering or impounding the Rents, or (vii) taking any other
affirmative action.


 


(c)           For purposes of
Section 552(b) of the Bankruptcy Code, the Grantor and the Beneficiary
agree that this Deed of Trust shall constitute a “security agreement,” that the
security interest created by such security agreement extends to property of the
Grantor acquired before the commencement of a case in bankruptcy and to all
amounts paid as Rents and that such security interest shall extend to all Rents
acquired by the estate after the commencement of a case in bankruptcy.


 


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(d)           The Grantor
acknowledges and agrees that all Rents shall be deemed to be “Cash Collateral”
under Section 363 of the Bankruptcy Code in the event that the Grantor
files a voluntary petition in bankruptcy or is made subject to any involuntary
bankruptcy proceeding.  After the filing
of such petition, the Grantor may not use Cash Collateral without the consent
of the Beneficiary and/or an order of any bankruptcy court pursuant to Section
363(b)(2) of the Bankruptcy Code.


 


(e)           It is agreed and
understood that the Beneficiary hereby reserves the right and shall have the
right, at any time and from time to time, without the consent or joinder of any
other party, to subordinate this Deed of Trust and the liens, assignments and
security interests created by this Deed of Trust to all or any of the Leases
regardless of the respective priority of any of such Leases and this Deed of
Trust.  Upon doing so, a foreclosure of
the Beneficiary’s liens, assignments and security interests under this Deed of
Trust shall be subject to and shall not operate to extinguish any of said
Leases as to which such subordination is operative.


 


8.             Maintenance of
the Trust Property.


 


The Grantor
shall cause the Trust Property to be maintained in good condition and repair
and will not commit or suffer to be committed any waste of the Trust
Property.  The Improvements and the
Equipment shall not be removed, demolished or materially altered (except for
normal replacement of the Equipment), without the prior written consent of the
Beneficiary.  The Grantor shall promptly
comply with all existing and future governmental laws, orders, ordinances,
rules and regulations affecting the Trust Property, or any portion thereof or
the use thereof.  The Grantor shall
promptly repair, replace or rebuild any part of the Trust Property which may be
damaged or destroyed by fire or other property hazard or casualty (including
any fire or other property hazard or casualty for which insurance was not
obtained or obtainable) or which may be affected by any taking by any public or
quasi-public authority through eminent domain or otherwise, and shall complete
and pay for, within a reasonable time, any structure at any time in the process
of construction or repair on the Premises. 
If such fire or other property hazard or casualty shall be covered by
the Policies, the Grantor’s obligation to repair, replace or rebuild such portion
of the Trust Property shall be contingent upon the Beneficiary paying the
Grantor the proceeds of the Policies, or such portion thereof as shall be
sufficient to complete such repair, replacement or rebuilding, whichever is
less.  The Grantor will not, without
obtaining the prior consent of the Beneficiary, initiate, join in or consent to
any private restrictive covenant, zoning ordinance, or other public or private
restrictions, limiting or affecting the uses which may be made of the Trust
Property or any part thereof.


 


9.             Environmental
Provisions.


 


(a)           For the purposes of
this Paragraph 9, the following terms shall have the following meanings:  (i) the term “Hazardous Material” shall mean any material
or substance that, whether by its nature or use, is now or hereafter defined or
regulated as a hazardous waste, hazardous substance, pollutant or contaminant
under any Environmental Requirement, or which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous or which is or contains petroleum, gasoline, diesel fuel, another
petroleum hydrocarbon product, asbestos, asbestos-containing materials or
polychlorinated biphenyls, (ii) the “Environmental
Requirements” shall collectively mean all present and future laws,
statutes, common law, ordinances, rules, regulations, orders, codes, licenses,
permits, decrees, judgments, directives or the equivalent of or by any
Governmental


 


9

















 


Authority and relating to or
addressing the protection of the environment or human health, and
(iii) the term “Governmental Authority”  shall mean the Federal government, or any
state or other political subdivision thereof, or any agency, court or body of
the Federal government, any state or other political subdivision thereof,
exercising executive, legislative, judicial, regulatory or administrative
functions.  For purposes of this
Paragraph 9 only, the term “Trust Property” shall include the land comprising
the Premises.


 


(b)           The Grantor hereby
represents and warrants to the Beneficiary to the best of its knowledge that
(i) except as specifically set forth in the Phase I Environmental Site
Assessment dated November 20, 2002 prepared by National Assessment Corporation,
no Hazardous Material is currently located at, on, in, under or about the Trust
Property in violation of any Environmental Requirements, (ii) no
releasing, emitting, discharging, leaching, dumping, disposing or transporting
of any Hazardous Material from the Trust Property onto any other property or
from any other property onto or into the Trust Property has occurred or is
occurring in violation of any Environmental Requirement, (iii) no notice
of violation, non-compliance, liability or potential liability, lien, complaint,
suit, order or other notice with respect to the Trust Property is presently
outstanding under any Environmental Requirement, nor does the Grantor have
knowledge or reason to believe that any such notice will be received or is
being threatened, and (iv) the Trust Property and the operation thereof
are in full compliance with all Environmental Requirements.


 


(c)           The Grantor shall
comply, and shall cause all tenants or other occupants of the Trust Property
deriving their interests through the Grantor to comply, in all respects with
all Environmental Requirements, and will not generate, store, handle, process,
dispose of or otherwise use, and will not permit any tenant or other occupant
of the Trust Property to generate, store, handle, process, dispose of or
otherwise use, Hazardous Materials at, in, on, or about the Trust Property in a
manner that could lead or potentially lead to the imposition on the Grantor,
the Beneficiary or the Trust Property of any liability or lien of any nature
whatsoever under any Environmental Requirement.  The Grantor shall notify the Beneficiary promptly in the event of
any spill or other release of any Hazardous Material at, in, on, under or about
the Trust Property which is required to be reported to a Governmental Authority
under any Environmental Requirement, will promptly forward to the Beneficiary
copies of any notices received by the Grantor relating to alleged violations of
any Environmental Requirement or any potential liability under any
Environmental Requirement and will promptly pay when due any fine or assessment
against the Beneficiary, the Grantor or the Trust Property relating to any
Environmental Requirement.  If at any
time it is determined that the operation or use of the Trust Property is in
violation of any applicable Environmental Requirement or that there are
Hazardous Materials located at, in, on, under or about the Trust Property which
violate any applicable Environmental Requirement or that there are Hazardous
Materials located at, in, on, under or about the Trust Property which, under
any Environmental Requirement, require special handling in collection, storage,
treatment or disposal, or any form of cleanup or corrective action, the Grantor
shall, within thirty (30) days after receipt of notice thereof from any
Governmental Authority or from the Beneficiary, take, at the Grantor’s sole
cost and expense, such actions as may be necessary to fully comply in all
respects with all Environmental Requirements, provided, however, that if such
compliance cannot reasonably be completed within such thirty (30) day period,
the Grantor shall commence such necessary action within such thirty (30) day
period and shall thereafter diligently and expeditiously proceed to fully
comply in all respects and in a timely fashion with all Environmental
Requirements.


 


10

















 


(d)           If the Grantor fails
to timely take, or to diligently and expeditiously proceed to complete in a
timely fashion (as determined by the Beneficiary in its sole and absolute
discretion), any such action described in clause (c) above, the
Beneficiary may, in its sole and absolute discretion, make advances or payments
toward the performance or satisfaction of the same, but shall in no event be
under any obligation to do so.  All sums
so advanced or paid by the Beneficiary (including, without limitation, counsel
and consultant fees and expenses, investigation and laboratory fees and
expenses, and fines or other penalty payments) and all sums advanced or paid in
connection with any judicial or administrative investigation or proceeding
relating thereto, will immediately, upon demand, become due and payable from
the Grantor and shall bear interest at the Default Rate from the date any such
sums are so advanced or paid by the Beneficiary until the date any such sums
are repaid by the Grantor to the Beneficiary. 
The Grantor will execute and deliver, promptly upon request, such
instruments as the Beneficiary may deem useful or necessary to permit the
Beneficiary to take any such action, and such additional notes and instruments,
as the Beneficiary may require to secure all sums so advanced or paid by the
Beneficiary.  If a lien is filed against
the Trust Property by any Governmental Authority resulting from the need to
expend or the actual expending of monies arising from an action or omission,
whether intentional or unintentional, of the Grantor or for which the Grantor
is responsible, resulting in the releasing, spilling, leaking, leaching,
pumping, emitting, pouring, emptying or dumping of any Hazardous Material into
the waters or onto land located within or without the state of Nevada where the
Trust Property is located, then the Grantor will, within thirty (30) days from
the date that the Grantor is first given notice that such lien has been placed
against the Trust Property (or within such shorter period of time as may be
specified by the Beneficiary if such Governmental Authority has commenced steps
to cause the Trust Property to be sold pursuant to such lien), either (i) pay
the claim and remove the lien, or (ii) furnish a cash deposit, bond, or
such other security with respect thereto as is satisfactory in all respects to
the Beneficiary and is sufficient to effect a complete discharge of such lien
on the Trust Property.


 


(e)           The Beneficiary may,
at its option, at any time or times, but not more than one time per year, cause
an environmental audit of the Trust Property or portions thereof to be
conducted to confirm the Grantor’s compliance with the provisions of this
Paragraph 9; provided, however, the Grantor shall not unreasonably withhold its
consent to the Beneficiary’s request to cause an environmental audit more than
one time per year.  In addition, the
Beneficiary may, at its option if the Beneficiary reasonably believes that a
Hazardous Material or other environmental condition violates or threatens to
violate any Environmental Requirement, cause an environmental audit of the
Trust Property or portions thereof to be conducted to confirm the Grantor’s
compliance with the provisions of this Paragraph 9.  The Grantor shall cooperate in all reasonable ways with the
Beneficiary in connection with any such audit. 
If any audit discloses that a violation of or a liability under an
Environmental Requirement exists, or if such audit was required by the
Beneficiary under the second sentence of this subparagraph (e), or was
prescribed by law, regulation or governmental or quasi-governmental authority,
the Grantor shall pay all costs and expenses incurred in connection with such audit;
otherwise, the costs and expenses of such audit shall, notwithstanding anything
to the contrary set forth in this Paragraph 9, be paid by the Beneficiary.


 


(f)            If this Deed of
Trust is foreclosed, or if the Trust Property is sold pursuant to the provisions
of this Deed of Trust, or if the Grantor tenders a deed or assignment in lieu
of foreclosure or sale, the Grantor shall deliver the Trust Property to the
purchaser at foreclosure or sale or to the Beneficiary, its nominee, or
wholly-owned subsidiary, as the case may be, in a condition that complies in
all respects with all Environmental Requirements.


 


11

















 


(g)           The Grantor will
defend, indemnify, and hold harmless the Beneficiary, its employees, agents, officers,
and directors, from and against any and all claims, demands, penalties, causes
of action, fines, liabilities, settlements, damages, costs, or expenses of
whatever kind or nature, known or unknown, foreseen or unforeseen, contingent
or otherwise (including, without limitation, counsel and consultant fees and
expenses, investigation and laboratory fees and expenses, court costs, and
litigation expenses) arising out of, or in any way related to, (i) any
breach by the Grantor of any of the provisions of this Paragraph 9,
(ii) the presence, disposal, spillage, discharge, emission, leakage,
release, or threatened release of any Hazardous Material which is at, in, on,
under, about, from or affecting the Trust Property, including, without limitation,
any damage or injury resulting from any such Hazardous Material to or affecting
the Trust Property or the soil, water, air, vegetation, buildings, personal
property, persons or animals located on the Trust Property or on any other
property or otherwise, (iii) any personal injury (including wrongful
death) or property damage (real or personal) arising out of or related to any
such Hazardous Material, (iv) any lawsuit brought or threatened,
settlement reached, or order or directive of or by any Governmental Authority
relating to such Hazardous Material, or (v) any violation of any
Environmental Requirement or any policy or requirement of the Beneficiary
hereunder.  The aforesaid
indemnification shall, notwithstanding any exculpatory or other provision of
any other document or instrument now or hereafter executed and delivered in
connection with the loans evidenced by the Note and secured by this Deed of
Trust, constitute the personal recourse undertakings, obligations and
liabilities of the Grantor.


 


(h)           The obligations and
liabilities of the Grantor under this Paragraph 9 shall survive and continue in
full force and effect and shall not be terminated, discharged or released, in
whole or in part, irrespective of whether the Obligations have been paid in
full and irrespective of any foreclosure of this Deed of Trust, sale of the
Trust Property pursuant to the provisions of this Deed of Trust or acceptance
by the Beneficiary, its nominee or affiliate of a deed or assignment in lieu of
foreclosure or sale and irrespective of any other fact or circumstance of any
nature whatsoever.


 


10.           Estoppel
Certificates.


 


The Grantor,
within fifteen (15) days after request by the Beneficiary and at its expense,
will furnish the Beneficiary with a statement, duly acknowledged and certified,
setting forth the amount of the Obligations and the offsets or defenses
thereto, if any.


 


11.           Transfer or
Encumbrance of the Trust Property.


 


(a)           No part of the Trust
Property nor any interest of any nature whatsoever therein nor any interest of
any nature whatsoever in the Grantor (whether stock, equity, beneficial,
profit, loss or otherwise) shall in any manner, directly or indirectly, be
further encumbered, sold, transferred or conveyed, or permitted to be further
encumbered, sold, transferred, assigned or conveyed without the prior consent
of the Beneficiary, which consent in any and all circumstances may be withheld
in the sole and absolute discretion of the Beneficiary.  The provisions of the foregoing sentence of
this Paragraph 11 shall apply to each and every such further encumbrance, sale,
transfer, assignment or conveyance, regardless of whether or not the
Beneficiary has consented to, or waived by its action or inaction its rights
hereunder with respect to, any such previous further encumbrance, sale,
transfer, assignment or conveyance, and irrespective of whether such further
encumbrance, sale, transfer, assignment or conveyance is voluntary, by reason
of operation of law or is otherwise made.


 


12

















 


(b)           Anything contained
in this Paragraph 11 to the contrary notwithstanding, indirect transfers of
interests in the Grantor arising from transfers of interests in The Smith &
Wollensky Restaurant Group, Inc. shall not be a default hereunder provided that
such transfers do not constitute a Change in Control (as defined in the Loan
Agreement) in The Smith & Wollensky Restaurant Group, Inc.


 


12.           Notice.


 


Any notice,
request, demand, statement, authorization, approval or consent made hereunder
shall be in writing and shall be addressed, delivered and deemed delivered as
provided in the Loan Agreement.


 


13.           Sale of Trust
Property.


 


If this Deed
of Trust is foreclosed, the Trust Property, or any interest therein, may, at
the discretion of the Beneficiary, be sold in one or more parcels or in several
interests or portions and in any order or manner.


 


14.           Changes in Laws
Regarding Taxation.


 


In the event
of the passage after the date of this Deed of Trust of any law of the state of
Nevada deducting from the value of real property for the purpose of taxation
any lien or encumbrance thereon or changing in any way the laws for the
taxation of deeds of trust or mortgages or the obligations secured by deeds of
trust or mortgages for state or local purposes or the manner of the collection
of any such taxes, and imposing a tax, either directly or indirectly, on the
Loan Agreement, this Deed of Trust, the Note or the Obligations, the Grantor
shall, if permitted by law, pay any tax imposed as a result of any such law
within the statutory period or within twenty (20) days after demand by the
Beneficiary, whichever is less, provided, however, that if, in the opinion of
the attorneys for the Beneficiary, the Grantor is not permitted by law to pay
such taxes, the Beneficiary shall have the right, at its option, to declare the
Obligations due and payable on a date specified in a prior notice to the
Grantor of not less than thirty (30) days.


 


15.           No Credits on
Account of the Obligations.


 


The Grantor
will not claim or demand or be entitled to any credit or credits on account of
the Obligations for any part of the Taxes assessed against the Trust Property
or any part thereof and no deduction shall otherwise be made or claimed from
the taxable value of the Trust Property, or any part thereof, by reason of this
Deed of Trust or the Obligations.  If at
any time this Deed of Trust shall secure less than all of the principal amount
of the Obligations, it is expressly agreed that any repayment of any portion of
the Obligations shall not reduce the amount of the lien of this Deed of Trust
until the lien amount shall equal the principal amount of the Obligations
outstanding.


 


16.           Offsets,
Counterclaims and Defenses.


 


Any assignee
of this Deed of Trust, the Note and/or the Obligations shall take the same free
and clear of all offsets, counterclaims or defenses of any nature whatsoever
which the Grantor may


 


13

















 


have against any assignor of
this Deed of Trust, the Note and the Loan Agreement, and no such offset,
counterclaim or defense shall be interposed or asserted by the Grantor in any
action or proceeding brought by any such assignee upon this Deed of Trust, the
Note or the Loan Agreement, and any such right to interpose or assert any such
offset, counterclaim or defense in any such action or proceeding is hereby
expressly waived by the Grantor.


 


17.           Other Security
for the Obligations.


 


The Grantor
shall observe and perform all of the terms, covenants and provisions contained
in the Loan Agreement, the Note and the other Loan Documents to which the
Grantor is a party.


 


18.           Documentary
Stamps.


 


If at any time
the United States of America, any state thereof, or any governmental
subdivision of any such state, shall require revenue or other stamps to be
affixed to the Note or this Deed of Trust, then except to the extent prohibited
under the laws of the state of Nevada, the Grantor will pay for the same, with
interest and penalties thereon, if any.


 


19.           Right of Entry.


 


Upon prior
notice, the Beneficiary and its agents shall have the right to enter and
inspect the Trust Property at all reasonable times.


 


14

















 


20.           Books and Records.


 


In addition to
the covenant regarding the keeping of books and records set forth in the Loan
Agreement, the Grantor will keep and maintain or will cause to be kept and
maintained on a fiscal year basis in accordance with generally accepted
accounting practices consistently applied, proper and accurate books, records
and accounts reflecting all of the financial affairs of the Grantor and all
items of income and expense in connection with the operation of the Trust
Property or in connection with any services, equipment or furnishings provided
in connection with the operation of the Trust Property, whether such income or
expense be realized by the Grantor or by any other person whatsoever excepting
lessees unrelated to and unaffiliated with the Grantor who have leased from the
Grantor portions of the Trust Property for the purpose of occupying the
same.  The Beneficiary shall have the
right from time to time at all times during normal business hours to examine
such books, records and accounts at the office of the Grantor or other person
maintaining such books, records and accounts and to make copies or extracts
thereof as the Beneficiary shall desire.


 


21.           Performance of
Other Agreements.


 


The Grantor
shall observe and perform each and every term to be observed or performed by
the Grantor pursuant to the terms of any agreement or recorded instrument
affecting or pertaining to the Trust Property.


 


22.           Events of Default.


 


The occurrence
of any of the following events (“Events of
Default”) shall (except in the case of clause (a) below where no
such exercise of an option shall be necessary to the extent the effect of an
“Event of Default” thereunder is automatic under the terms of the Loan
Agreement itself), at the option of the Beneficiary, make all amounts then
remaining unpaid on the Obligations immediately due and payable, all without further
demand, presentment, notice or other requirements of any kind, all of which are
hereby expressly waived by the Grantor, and the lien, encumbrance and security
interest evidenced or created hereby shall be subject to sale or foreclosure in
any manner provided for herein or provided for by law:


 


(a)           if an “Event of
Default” as defined therein shall occur under the Loan Agreement;


 


(b)           if any Federal tax
lien is filed against the Grantor which encumbers the


Trust Property and the same is
not discharged of record within thirty (30) days after the same is filed;


 


(c)           if without the
consent of the Beneficiary any Improvement or the Equipment (except for the
normal replacement of the Equipment) is removed, demolished or materially
altered, or if the Trust Property is not kept in good condition and repair;


 


(d)           if the Grantor shall
fail to comply with any requirement or order or notice of violation of law or
ordinance issued by any governmental department claiming jurisdiction over the
Trust Property within three (3) months from the issuance thereof, or the time
period set forth therein, whichever is less;


 


15

















 


(e)           if the Policies are
not kept in full force and effect, or if the Policies are not delivered to the
Beneficiary upon request;


 


(f)            if the Grantor
shall fail to pay the Beneficiary on demand for all Premiums and/or Taxes paid
by the Beneficiary pursuant to this Deed of Trust, together with any late
payment charge and interest thereon calculated at the Default Rate;


 


(g)           except as expressly
permitted under Paragraph 7 hereof, if without the consent of the Beneficiary
any Leases are made, canceled or modified or if any portion of the Rents is
paid for a period of more than one (1) month in advance or if any of the
Rents are further assigned;


 


(h)           if the Grantor
ceases to occupy at least 75% of the rentable square feet at the Premises for
the conducting of the business operated thereon on the date of this Deed of
Trust;


 


(i)            if the Trust
Property shall become subject (i) to any tax lien by virtue of any act or
omission of the Grantor, other than a lien for local real estate taxes and
assessments not due and payable, or (ii) to any lis pendens, notice of
pendency, stop order, notice of intention to file mechanic’s or materialman’s
lien, mechanic’s or materialman’s lien or other lien of any nature whatsoever
and the same shall not either be discharged of record or in the alternative
insured over to the satisfaction of the Beneficiary by any title company
insuring the lien of this Deed of Trust within a period of the shorter of (i)
the time provided therefor under the Subject Lease and (ii) 45 days after the
same is filed or recorded, and irrespective of whether the same is superior or
subordinate in lien or other priority to the lien of this Deed of Trust and
irrespective of whether the same constitutes a perfected or inchoate lien or
encumbrance on the Trust Property or is only a matter of record or notice;


 


(j)            if (i) the Grantor
shall default in the observance or performance of any term, covenant or
condition of the Subject Lease on the part of the Grantor, as lessee
thereunder, to be observed or performed, unless any such observance or
performance shall have been waived or not required in writing by the lessor under
the Subject Lease, which default continues beyond notice and cure periods,
applicable thereto, if any, or (ii) any one or more events shall occur which
would or may cause the Subject Lease to terminate without notice or action by
the lessor thereunder or which would entitle the lessor under the Subject Lease
to terminate the Subject Lease and the term thereof by giving notice to the
Grantor, as lessee thereunder, or (iii) the leasehold estate created by the
Subject Lease shall be surrendered, in whole or in part, or (iv) the Subject
Lease shall be terminated or canceled for any reason or under any circumstance
whatsoever, or (v) any of the terms, covenants or conditions of the Subject
Lease shall be modified, changed, supplemented, altered or amended in any
material manner without the consent of the Beneficiary, or (vi) the Grantor
shall, without the Beneficiary’s prior written approval, elect to treat the
Subject Lease as terminated under section 365(h)(1) of the Bankruptcy Code (it
being understood that any such election made by the Grantor, as holder of the
leasehold estate in the Trust Property, without the Beneficiary’s prior written
consent, in addition to constituting an Event of Default, shall be void); or


 


(k)           if the Grantor shall
continue to be in default under any of the terms, covenants or conditions of
this Deed of Trust (other than as described in any of Subparagraphs (a) through
(j) of this Paragraph 22) for ten (10) days after notice from the Beneficiary
in the case of any default which can be


 


16

















 


cured by the payment of a sum
of money or for thirty (30) days after notice from the Beneficiary in the case
of any other default, provided that if such default cannot reasonably be cured
within such thirty (30) day period and the Grantor shall have commenced to cure
such default within such thirty (30) day period and thereafter diligently and
expeditiously proceeds to cure the same, such thirty (30) day period shall be
extended for so long as it shall require the Grantor in the exercise of due
diligence to cure such default, it being agreed that no such extension shall be
for a period in excess of ninety (90) days.


 


23.           Remedies.


 


(a)           General.  Upon the occurrence
and during the continuance of any one or more Events of Default, the
Beneficiary may, in addition to any rights or remedies available to it
hereunder or under the other Loan Documents, but subject to any applicable
provisions of the Loan Agreement and to the extent permitted by applicable law,
take such action personally or by its agents or attorneys, with or without
entry, and without notice of intent to accelerate, notice of acceleration or
other notice, demand, presentment or protest (each and all of which are hereby
expressly WAIVED), as it deems necessary or advisable to protect and enforce
the Beneficiary’s rights and remedies against the Grantor and in and to the
Trust Property, including, without limitation, the actions described in this
Paragraph 23, each of which may be pursued concurrently or otherwise, at such
time and in such order as the Beneficiary may determine, in its sole
discretion, without impairing or otherwise affecting its other capitalized
rights or remedies.


 


(b)           Acceleration;
Notice.  Time is of the essence with
respect to the Grantor’s obligations hereunder.  Upon the occurrence of any Event of Default, at the Beneficiary’s
option and in addition to any other remedy the Beneficiary may have under the
Loan Agreement, the Note, and the other Loan Documents, the Beneficiary may, at
its option, declare all sums secured by this Deed of Trust immediately due and
payable (except in the case of an Event of Default under clause 22(a) above
where no such exercise of an option shall be necessary to the extent the effect
of an “Event of Default” thereunder is automatic under the terms of the Loan
Agreement itself) and elect to have the Trust Property sold in the manner
provided herein.  In the event the
Beneficiary elects to sell the Trust Property, the Beneficiary may execute or
cause the Trustee to execute a written notice of default and of election to
cause the Trust Property to be sold to satisfy the obligations hereof, and the
Trustee shall file such notice for record in the office of the County Recorder
of the county wherein the Trust Property is located.  Beneficiary shall also deposit with the Trustee the Note and all
documents evidencing expenditures secured by this Deed of Trust.


 


(c)           Exercise of Power
of Sale.  Upon receipt of such
notice from the Beneficiary, the Trustee shall cause to be recorded, published
and delivered to the Grantor such Notice of Default and Election to Sell as
then required by Chapter 107 of the Nevada Revised Statutes (“NRS”), or any successor statutes.  The Trustee shall, without demand on the
Grantor, after lapse of such time as may be required by law and after
recordation of such Notice of Default and Election to Sell first give notice of
the time and place of such sale, in the manner provided by the laws of the
State of Nevada for the sale of real property under execution, and may from
time to time postpone such sale by such advertisement as it may deem
reasonable, or without further advertisement, by proclamation made to the
persons assembled at the time and place previously appointed and advertised for
such sale, and on the day of sale so advertised, or to which such sale may have
been postponed, the Trustee may sell the Trust Property so advertised, at
public auction, at the time and place specified in the notice, either in the
county in which the Trust


 


17

















 


Property, or any part thereof,
to be sold, is situated, or at the principal office of the Trustee located in
Clark County, State of Nevada, in its discretion, to the highest cash bidder
(subject to the Beneficiary’s right to credit upon the amount of the bid made
therefor the amount payable to it).  The
Trustee shall execute and deliver to the purchaser a trustee’s deed conveying
the Trust Property so sold, but without any covenant of warranty, express or
implied.  The recitals in the trustee’s
deed of any matters or facts shall be conclusive proof of the truthfulness
thereof.  Any person, including the
Beneficiary, may bid at the sale, and Beneficiary shall have the right to
credit upon the amount of the bid made therefor the amount payable to it out of
the net proceeds of such sale.  All
other sales shall be, to the extent permitted by applicable law, on a cash
basis.  The Trustee shall apply the
proceeds of the sale to payment of (a) the costs and expenses of exercising the
power of sale and of the sale, including the payment of the Trustee’s, and both
the Trustee’s and the Beneficiary’s attorneys’, fees and costs; (b) the cost of
any evidence of title procured in connection with such sale; (c) all sums
expended under the terms hereof in conjunction with any default provision
hereunder, not then repaid, with accrued interest at the rate then provided for
in the Note; (d) all sums then secured by this Deed of Trust, including
interest and principal on the Note; and (e) the remainder, if any, to the
person or persons legally entitled thereto, or the Trustee, in the Trustee’s
discretion, may deposit the balance of such proceeds with the County Clerk of
the county wherein the Trust Property is located.


 


(d)           Surrender
of Possession.  The Grantor shall
surrender possession of the Trust Property to the purchaser immediately after
the sale of the Trust Property as provided in Subsection 23(c) above, in the
event such possession has not previously been surrendered by Grantor.


 


(e)           UCC Remedies.


 


(i)            Notwithstanding
anything to the contrary in Subsections 23(c) and (d) above, the Beneficiary,
with regard to all the UCC Collateral, shall have the right to exercise, from
time to time, any and all rights and remedies available to the Beneficiary, as
a secured party under the Uniform Commercial Code as in effect in the State of
Nevada (the “Nevada UCC”), and any and all rights and remedies available to the
Beneficiary under any other applicable law. 
Upon written demand from the Beneficiary, the Grantor shall, at the
Grantor’s expense, assemble the UCC Collateral and make such available to the
Beneficiary at a reasonably convenient place designated by the
Beneficiary.  The Beneficiary shall have
the right to enter upon any premises where the UCC Collateral or records
pertaining to the UCC Collateral may be and take possession of the UCC
Collateral and records relating to the UCC Collateral.  The Beneficiary may sell, lease or otherwise
dispose of any or all of the UCC Collateral and, after deducting the reasonable
costs and out of pocket expenses incurred by the Beneficiary, including,
without limitation, (a) reasonable attorneys’ fees and legal expenses, (b)
transportation and storage costs, (c) advertising of sale of the UCC
Collateral, (d) sale commissions, (e) sales tax, (f) costs for improving or
repairing the UCC Collateral, and (g) costs for preservation and protection of
the UCC Collateral, apply the remainder to pay, or to hold as a reserve
against, the Obligations.


 


(ii)           The rights and
remedies of the Beneficiary upon the occurrence of one or more Events of
Default (whether such rights and remedies are conferred by statute, by rule of
law, by this Deed of Trust, the Loan Documents or otherwise) may be exercised by
the Beneficiary, either alternatively, concurrently, or consecutively in any
order.  The exercise by the Beneficiary
or the Trustee at the express direction of the Beneficiary of any one or more
of such rights and remedies shall not be construed to be an election of
remedies nor waiver of any other rights and remedies the Beneficiary might


 


18

















 


have unless, and limited to the
extent that, the Beneficiary shall elect or so waive by an instrument in
writing delivered to the Trustee. 
Without limiting the generality of the foregoing, to the extent that
this Deed of Trust covers both real property and personal property, the
Beneficiary may, in the sole discretion of the Beneficiary, either
alternatively, concurrently or consecutively in any order:


 


(1)           Proceed as to the
Trust Property in accordance with the Beneficiary’s rights and remedies in
respect to real property.


 


(2)           Proceed as to the RP
Collateral in accordance with the Beneficiary’s rights and remedies in respect
to real property and proceed as to the UCC Collateral in accordance with
Beneficiary’s rights and remedies in respect to the personal property.


 


(iii)          The Beneficiary
may, in the sole discretion of the Beneficiary, appoint the Trustee as the agent
of the Beneficiary for the purpose of disposition of the UCC Collateral in
accordance with the Nevada UCC.


 


(iv)          If the Beneficiary
should elect to proceed as to the Trust Property in accordance with
Beneficiary’s rights and remedies in respect to real property:


 


(1)           All the UCC
Collateral may be sold, in the manner and at the time and place provided in
this Deed of Trust, in one lot, or in separate lots consisting of any
combination or combinations of the RP Collateral and the UCC Collateral, as the
Beneficiary may elect, in the sole discretion of the Beneficiary.


 


(2)           The Grantor
acknowledges and agrees that a disposition of the UCC Collateral in accordance
with the Beneficiary’s rights and remedies in respect to real property, as
hereinabove provided, is a commercially reasonable disposition of the UCC
Collateral.


 


(v)           If the Beneficiary
should elect to proceed as to the UCC Collateral in accordance with the
Beneficiary’s rights and remedies in respect to personal property, the
Beneficiary shall have all the rights and remedies conferred on a secured party
by NRS 104.9601 to NRS 104.9628, both inclusive.


 


(f)            Foreclosure as a
Mortgage.  If an Event of Default
occurs hereunder, the Beneficiary shall have the option to foreclose this Deed
of Trust in the manner provided by law for the foreclosure of mortgages on real
property and the Beneficiary shall be entitled to recover in such proceedings
all costs and expenses incident thereto, including reasonable attorneys’ fees
and costs in such amounts as shall be fixed by the court.  Any such foreclosure may be a complete or
partial foreclosure.


 


(g)           Receiver.  If an Event of Default occurs, the
Beneficiary, as a matter of right and without regard to, or the necessity to
prove or disprove, the value of the Trust Property or the adequacy of the
security for the sums secured by this Deed of Trust or the solvency or
insolvency of the Grantor or any other person liable for the payment of such
sums, apply to any court having jurisdiction to appoint a receiver or receivers
of the Trust Property and the Grantor hereby irrevocably consents to such
appointment.  Any such receiver or
receivers shall have all the usual powers and duties of a receiver and shall
continue as such and exercise all such powers until completion of the sale of
the Trust Property or the foreclosure proceeding, unless the receivership is
sooner terminated.


 


19

















 


(h)           Specific Performance.  The Beneficiary or the Trustee may institute
an action, suit or proceeding in equity for the specific performance of any of
the provisions contained herein or in any of the other Loan Documents.


 


(i)            Grantor’s Right to Possession.  To the extent permitted by applicable law,
the Beneficiary may enter upon the Premises, and exclude the Grantor and its
agents and servants wholly therefrom, without liability for trespass, damages
or otherwise, and take possession of all books, records and accounts relating
thereto and all other Trust Property, and the Grantor agrees to surrender
possession of the Trust Property and of such books, records and accounts to the
Beneficiary on demand after the happening of any Event of Default and for so
long as an Event of Default shall continue; and having and holding the same may
use, operate, manage, preserve, control and otherwise deal therewith and
conduct the business thereof, either personally or by its superintendents,
managers, agents, servants, attorneys or receivers, without interference from
the Grantor; and upon each such entry and from time to time thereafter may, at
the expense of the Grantor and the Trust Property, without interference by the
Grantor and as the Beneficiary may deem advisable, (i) insure or reinsure the
Premises, (ii) make all necessary or proper repairs, renewals, replacements,
alterations, additions, betterments and improvements thereto and thereon and
(iii) in every such case in connection with the foregoing have the right to
exercise all rights and powers of the Grantor with respect to the Trust
Property, either in the Grantor’s name or otherwise.  For the purpose of carrying out the provisions of this Paragraph
23(i), the Grantor hereby constitutes and appoints the Beneficiary the true and
lawful attorney-in-fact of the Grantor, which appointment is irrevocable and shall
be deemed to be coupled with an interest, in the Grantor’s name and stead, to
do and perform, from time to time, any and all actions necessary and incidental
to such purpose and does by these presents ratify and confirm any and all
actions of said attorney-in-fact in and with respect to the Trust Property.


 


(j)            No Remedy
Exclusive.  No remedy conferred upon
or reserved to the Beneficiary under this Deed of Trust shall be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Deed
of Trust or any other Loan Document, or now or hereafter existing at law or in
equity or by statute.  No delay or
failure to exercise any right or power accruing upon any Event of Default shall
impair any such right or power or shall be construed to be a waiver thereof,
but any such right or power may be exercised from time to time and as often as
may be deemed expedient.


 


(k)           Rights Upon
Default.  In making the Loan, the
Beneficiary has relied upon the rights available to the Beneficiary under this
Deed of Trust upon the occurrence of any Event of Default, including, without
limitation, the rights to accelerate the payment of any and all amounts secured
by this Deed of Trust, to sell the Trust Property encumbered by this Deed of
Trust pursuant to the power of sale granted hereunder, the right to foreclose
this Deed of Trust as a mortgage, and the right to have a receiver
appointed.  In addition to any other
damages that might be recoverable by the Beneficiary under the terms of this
Deed of Trust, the Grantor shall be liable for any damages incurred by the
Beneficiary because the Beneficiary is, for any reason, denied the opportunity
to exercise the Beneficiary’s rights upon the occurrence of an Event of
Default, including, without limitation, such damages as are occasioned by
depreciation of the Trust Property, loss of use of the Trust Property by the
Beneficiary, and all opportunity costs incurred through the loss of use of any
funds as would have been received by the Beneficiary through exercise of the
power of sale or foreclosure, or the appointment of a receiver.


 


20

















 


(l)            Incorporation of
Certain Nevada Covenants.  The
following covenants, Nos. 1, 3, 4 (Default Rate), 6, 7 (reasonable), 8 and 9 of
NRS 107.030, where not in conflict with the express provisions of any Loan
Document, are hereby adopted and made a part of this Deed of Trust.  Upon any Event of Default by the Grantor
hereunder, the Beneficiary may (a) declare all sums secured immediately
due and payable without demand or notice or (b) have a receiver appointed as a
matter of right without regard to the sufficiency of said property or any other
security or guaranty and without any showing as required by NRS 107.100.  All remedies provided in this Deed of Trust
are distinct and cumulative to any other right or remedy under this Deed of
Trust or afforded by law or equity and may be exercised concurrently, independently
or successively.  The sale of said
property conducted pursuant to Covenants Nos. 6, 7 and 8 of NRS 107.030 may be
conducted either as to the whole of said property or in separate parcels and in
such order as the Trustee may determine.


 


24.           Right to Cure
Defaults.


 


If default in
the performance of any of the covenants of the Grantor herein occurs, the
Beneficiary may, at its discretion, remedy the same and for such purpose shall
have the right to enter upon the Trust Property or any portion thereof without
thereby becoming liable to the Grantor or any person in possession thereof
holding under the Grantor.  If the
Beneficiary shall remedy such a default or appear in, defend, or bring any
action or proceeding to protect its interest in the Trust Property or to
foreclose this Deed of Trust or collect the Obligations, the costs and expenses
thereof (including reasonable attorneys’ fees to the extent permitted by law),
with interest as provided in this Paragraph 24, shall be paid by the Grantor to
the Beneficiary upon demand.  All such
costs and expenses incurred by the Beneficiary in remedying such default or in
appearing in, defending, or bringing any such action or proceeding shall be
paid by the Grantor to the Beneficiary upon demand, with interest (calculated
for the actual number of days elapsed on the basis of a 365-366 day year) at a
rate equal to two percentage points above the then applicable rate under the
Note (the “Default  Rate”); provided, however, that the Default
Rate shall in no event exceed the maximum interest rate which the Grantor may
by law pay, for the period after notice from the Beneficiary that such costs or
expenses were incurred to the date of payment to the Beneficiary.  In each such event, such costs, expenses and
amounts, together with interest thereon at the Default Rate, shall be added to
the indebtedness secured by this Deed of Trust and shall be secured by this
Deed of Trust.


 


25.           Non-Waiver.


 


The failure of
the Beneficiary to insist upon strict performance of any term of this Deed of
Trust shall not be deemed to be a waiver of any term of this Deed of
Trust.  The Grantor shall not be
relieved of the Grantor’s obligation to pay the Obligations at the time and in
the manner provided therefor in the Note, this Deed of Trust or any other Loan
Documents by reason of (a) failure of the Beneficiary to comply with any
request of the Grantor to take any action to foreclose this Deed of Trust or
otherwise enforce any of the provisions hereof or of any other deed of trust,
instrument or document evidencing, securing or guaranteeing payment of the
Obligations or any portion thereof, (b) the release, regardless of
consideration, of the whole or any part of the Trust Property or any other
security for the Obligations, or (c) any agreement or stipulation between
the Beneficiary and any subsequent owner or owners of the Trust Property or
other person extending the time of payment or otherwise modifying or
supplementing the terms of the Note or this Deed of Trust or any other deed of
trust, instrument or document evidencing, securing or guaranteeing payment of
the Obligations or any portion thereof, without first having obtained


 


21

















 


the consent of the Grantor, and
in the latter event, the Grantor shall continue to be obligated to pay the
Obligations at the times and in the manner provided in the Note and this Deed
of Trust, as so extended, modified and supplemented, unless expressly released
and discharged from such obligation by the Beneficiary in writing.  Regardless of consideration, and without the
necessity for any notice to or consent by the holder of any subordinate lien,
encumbrance, right, title or interest in or to the Trust Property, the
Beneficiary may release any person at any time liable for the payment of the
Obligations or any portion thereof or any part of the security held for the
Obligations and may extend the time of payment or otherwise modify the terms of
the Note, this Deed of Trust, the Loan Agreement or any other Loan Document
including, without limitation, a modification of the interest rate, without
impairing or affecting this Deed of Trust or the lien or the priority of this
Deed of Trust, as so extended and modified, as security for the Obligations
over any such subordinate lien, encumbrance, right, title or interest.  The Beneficiary may resort for the payment
of the Obligations to any other security held by the Beneficiary in such order
and manner as the Beneficiary, in its discretion, may elect.  The Beneficiary may take action to recover
the Obligations, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of the Beneficiary thereafter to realize on the
collateral covered by this Deed of Trust. 
The Beneficiary shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every additional right and
remedy now or hereafter afforded by law. 
The rights of the Beneficiary under this Deed of Trust shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others.  No act of the Beneficiary shall
be construed as an election to proceed under any one provision herein to the
exclusion of any other provision.


 


26.           Liability.


 


If the Grantor
consists of more than one person, the obligations and liabilities of each such
person hereunder shall be joint and several.


 


27.           Construction/Severability.


 


The proceeds
of the Loan secured hereby were disbursed from the state of New York, which
state the parties agree has a substantial relationship to the underlying
transaction embodied hereby, and in all respects, including, without limiting
the generality of the foregoing, matters of construction, validity and
performance.  This Deed of Trust and the
obligations arising hereunder shall be governed by, and construed in accordance
with, the laws of the state of New York applicable to contracts made and
performed in New York State and any applicable laws of the United States of
America, without regard to conflict of law rules and principles.  Notwithstanding such provisions, however,
(i) matters respecting title to the RP Collateral and the creation, perfection,
priority and foreclosure (including the nature of any interest in property that
results therefrom) of the liens on the RP Collateral shall be governed by, and
construed and enforced in accordance with, the internal law of the state of
Nevada without giving effect to the conflicts-of law rules and principals of
such state; (ii) the Grantor agrees that whether or not deficiency judgments
are available under the laws of the state of Nevada, after a foreclosure
(judicial or nonjudicial) of the Trust Property, or any portion thereof, or any
other realization thereon by the Beneficiary, the Beneficiary shall have the
right to seek such a deficiency judgement against the Grantor in other states
or foreign jurisdictions; and (iii) the Grantor agrees that, to the extent the
Beneficiary obtains a deficiency judgment in any other state or foreign
jurisdiction, then such party shall have the right to enforce such judgment in
the state of Nevada, as well as in other states or foreign jurisdictions.


 


22

















 


28.           Security
Agreement and Fixture Filing.


 


(a)  This Deed of Trust constitutes both a real
property mortgage or deed of trust and a “security agreement,” within the
meaning of the Nevada UCC, and the Trust Property includes both real and
personal property and all other rights and interest, whether tangible or
intangible in nature, of the Grantor in the Trust Property.  The Grantor by executing and delivering this
Deed of Trust has granted to the Beneficiary, as security for the Obligations,
a security interest in the UCC Collateral. 
If an Event of Default shall occur hereunder, the Beneficiary, in addition
to any other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Nevada UCC, including, without limiting
the generality of the foregoing, the right to take possession of the UCC
Collateral or any part thereof, and to take such other measures as the
Beneficiary may deem necessary for the care, protection and preservation of the
UCC Collateral.  Upon request or demand
of the Beneficiary, the Grantor shall at its expense assemble the UCC
Collateral and make it available to the Beneficiary at a convenient place
acceptable to the Beneficiary.  The
Grantor shall pay to the Beneficiary on demand any and all expenses, including
legal expenses and attorneys’ fees, incurred or paid by the Beneficiary in
protecting its interest in the UCC Collateral and in enforcing its rights
hereunder with respect to the UCC Collateral. 
Any notice of sale, disposition or other intended action by the Beneficiary
with respect to the UCC Collateral sent to the Grantor in accordance with the
provisions of this Deed of Trust at least seven (7) days prior to the date of
any such sale, disposition or other action, shall constitute reasonable notice
to the Grantor, and the method of sale or disposition or other intended action
set forth or specified in such notice shall conclusively be deemed to be
commercially reasonable within the meaning of the Nevada UCC unless objected to
in writing by the Grantor within five (5) days after receipt by the Grantor of
such notice.  The proceeds of any sale
or disposition of the UCC Collateral, or any part thereof, may be applied by
the Beneficiary to the payment of the Obligations in such order, priority and
proportions as the Beneficiary in its discretion shall deem proper.  If any change shall occur in the Grantor’s
name, the Grantor shall promptly cause to be filed at its own expense, new
financing statements as required under the Nevada UCC to replace those on file
in favor of the Beneficiary.  Conflicts
between this Paragraph 28 and any provision of the Security Agreement of even
date herewith between the Grantor and the Beneficiary shall be resolved in
favor of the Security Agreement.


 


(b)  Certain of the Trust Property is or will
become “fixtures” (as that term is defined in the Nevada UCC ) on the Premises,
described or referred to in this Deed of Trust, and this Deed of Trust, upon
being filed for record with the Nevada Secretary of State and in the real
estate records of Clark County, Nevada, shall be effective and operate also as
a financing statement filed as a fixture filing in accordance with the
applicable provisions of the Nevada UCC upon such of the Trust Property that is
or may become fixtures.  In connection
with this fixture filing, the names and addresses of the Grantor, as the
debtor, and the Beneficiary, as the secured party, are as set forth in the
introductory paragraph of the first page of this Deed of Trust.  The foregoing address of the Beneficiary, as
the secured party, is also the address from which any interested party may
obtain information concerning the security interest.  The property subject to this fixture filing is the Trust Property
as described in paragraphs (a) through (l) of the granting clauses set forth
above.  Portions of the property subject
to this fixture filing as identified in the first sentence of this Paragraph
28(b) are or are to become fixtures related to the Premises described in
Exhibit A to this Deed of Trust.


 


23

















 


29.           Further Acts, etc.


 


The Grantor
will, at the cost of the Grantor, and without expense to the Beneficiary, do,
execute, acknowledge and deliver all and every such further acts, deeds,
conveyances, deeds of trust, mortgages, assignments, notices of assignments,
transfers and assurances as the Beneficiary shall, from time to time, demand
for the better assuring, conveying, assigning, transferring and confirming unto
the Beneficiary the property and rights conveyed, assigned and transferred
hereunder or intended now or hereafter so to be, or which the Grantor may be or
may hereafter become bound to convey, assign or transfer to the Beneficiary, or
for carrying out the intention or facilitating the performance of the terms of
this Deed of Trust or for filing, registering or recording this Deed of Trust
and, on demand, will execute, deliver and/or file, and hereby authorizes the
Beneficiary to execute and/or file in the name of the Grantor to the extent the
Beneficiary may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments, to evidence more effectively the
interests in the Trust Property granted to the Beneficiary hereunder.


 


30.           Headings, etc.


 


The headings
and captions of various paragraphs of this Deed of Trust are for convenience of
reference only and are not to be construed as defined or limiting, in any way,
the scope or intent of the provisions hereof.


 


31.           Filing of
Instrument, etc.


 


The Grantor
forthwith upon the execution and delivery of this Deed of Trust and thereafter,
from time to time, will cause this Deed of Trust, and any security instrument
creating a lien or evidencing the lien hereof upon the Trust Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect, preserve and perfect the lien
hereof upon, and the interest of the Beneficiary in, the Trust Property.  The Grantor will pay all filing,
registration and recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Deed of Trust, any deed of trust
supplemental hereto, any security instrument with respect to the Trust
Property, and any instrument of further assurance, and all Federal, state,
county and municipal taxes, duties, imposts, assessments and charges arising
out of or in connection with the execution and delivery of this Deed of Trust,
any deed of trust supplemental hereto, any security instrument with respect to
the Trust Property or any instrument of further assurance.  The Grantor shall hold harmless and
indemnify the Beneficiary, its successors and assigns, against any liability
incurred by reason of the imposition of any tax on the making and recording of
this Deed of Trust.


 


32.           Usury Laws.


 


The Grantor
and the Beneficiary stipulate and agree that it is their common and overriding
intent to contract in strict compliance with applicable usury laws.  In furtherance thereof, none of the terms of
this Deed of Trust shall ever be construed to create a contract to pay, as
consideration for the use, forbearance or detention of money, interest at a
rate in excess of the maximum rate permitted by applicable laws.  The Grantor shall never be liable for
interest in excess of the maximum rate permitted by applicable laws.  If, for any reason whatever, such interest
paid or received during the full term of the applicable indebtedness produces a
rate which exceeds the maximum rate permitted by applicable laws,


 


24

















 


 the Beneficiary shall credit against the principal of such
indebtedness (or, if such indebtedness shall have been paid in full, shall
refund to the payor of such interest) such portion of said interest as shall be
necessary to cause the interest paid to produce a rate equal to the maximum
rate permitted by applicable laws.  All
sums paid or agreed to be paid to the Beneficiary for the use, forbearance or
detention of money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of the
applicable indebtedness.  The provisions
of this Paragraph 32 shall control all agreements, whether now or hereafter
existing and whether written or oral, between the Grantor and the Beneficiary.


 


33.           Sole Discretion
of The Beneficiary.


 


Except as may
otherwise be expressly provided to the contrary, wherever pursuant to this Deed
of Trust, the Beneficiary exercises any right given to it to consent or not
consent, or to approve or disapprove, or any arrangement or term is to be
satisfactory to the Beneficiary, the decision of the Beneficiary to consent or
not consent, or to approve or disapprove, or to decide that arrangements or
terms are satisfactory or not satisfactory, shall be in the sole and absolute
discretion of the Beneficiary and shall be final and conclusive.


 


34            Reasonableness.


 


If at any time
the Grantor believes that the Beneficiary has not acted reasonably in granting
or withholding any approval or consent under this Deed of Trust as to which
approval or consent either (a) the Beneficiary has expressly agreed to act
reasonably, or (b) absent such agreement, applicable law would nonetheless
require the Beneficiary to act reasonably, then the Grantor’s sole remedy shall
be to seek injunctive relief or specific performance, and no action for
monetary damages or punitive damages shall in any event or under any
circumstance be maintained by the Grantor against the Beneficiary.


 


35.           Recovery of Sums
Required To Be Paid.


 


The
Beneficiary shall have the right from time to time to take action to recover
any sum or sums which constitute a part of the Obligations as the same become
due, without regard to whether or not the balance of the Obligations shall be
due, and without prejudice to the right of the Beneficiary thereafter to bring
an action of foreclosure, or any other action, for a default or defaults by the
Grantor existing at the time such earlier action was commenced.


 


36.           Actions and
Proceedings.


 


The
Beneficiary shall have the right to appear in and defend any action or
proceeding brought with respect to the Trust Property and to bring any action
or proceeding, in the name and on behalf of the Grantor, which the Beneficiary,
in its discretion, determines should be brought to protect the Beneficiary’s
interest in the Trust Property.


 


25

















 


37.           Inapplicable Provisions.


 


If any term,
covenant or condition of this Deed of Trust shall be held to be invalid,
illegal or unenforceable in any respect, this Deed of Trust shall be construed
without such provision.


 


38.           Duplicate
Originals.


 


This Deed of
Trust may be executed in any number of duplicate originals and each such duplicate
original shall be deemed to constitute but one and the same Instrument.


 


39.           Certain
Definitions.


 


Unless the
context clearly indicates a contrary intent or unless otherwise specifically
provided in this Deed of Trust, words used in this Deed of Trust shall be used
interchangeably in singular or plural form; the word “Grantor” shall mean each Grantor and any subsequent owner or
owners of the Trust Property or any part thereof or interest therein; the word “Loan Documents” shall have the meaning
set forth in the Loan Agreement; the word “person”
shall include an individual, corporation, partnership, trust, unincorporated
association, government, governmental authority, or other entity; the words “Trust Property” shall include any portion
of the Trust Property or interest therein; and the word “Obligations” shall mean all sums secured by
this Deed of Trust; the word “default”
shall mean the occurrence of any default by the Grantor or other person in the
observance or performance of any of the terms, covenants or provisions of this
Deed of Trust on the part of the Grantor or such other person to be observed or
performed without regard to whether such default constitutes or would
constitute upon notice or lapse of time, or both, an Event of Default under this
Deed of Trust; and words such as “herein”
or “hereunder” shall be deemed to
refer to this Deed of Trust as a whole and not merely to the sentence or
paragraph in which they appear. 
References to “the lien of this Deed
of Trust” or words to that effect are also references to this Deed
of Trust.  Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice versa.


 


40.           Waiver of Notice.


 


The Grantor
shall not be entitled to any notices of any nature whatsoever from the
Beneficiary except with respect to matters for which this Deed of Trust
specifically and expressly provides for the giving of notice by the Beneficiary
to the Grantor, and the Grantor hereby expressly waives the right to receive
any notice from the Beneficiary with respect to any matter for which this Deed
of Trust does not specifically and expressly provide for the giving of notice
by the Beneficiary to the Grantor.


 


41.           No Oral Change.


 


This Deed of
Trust may only be modified, amended or changed by an agreement in writing
signed by the Grantor, the Beneficiary and, to the extent required by
applicable law, the Trustee, and may only be released, discharged or satisfied
of record by an agreement in writing signed by the Beneficiary and, to the
extent required by applicable law, the Trustee.  No waiver of any term, covenant or provision of this Deed of
Trust shall be effective unless given in writing by the Beneficiary and if so
given by the Beneficiary shall only be effective in the specific instance in
which given.  No course of dealing
between the parties, no usage of trade and no extrinsic or parol evidence may
be used to


 


26

















 


supplement or modify the terms
of this Deed of Trust.  The Grantor
acknowledges that the Note, this Deed of Trust, the Loan Agreement and the
other Loan Documents set forth the entire agreement and understanding of the
Grantor and the Beneficiary with respect to the Obligations secured hereby and
that no oral or other agreements, understanding, representation or warranties
exist with respect to the Obligations secured hereby other than those set forth
in the Note, this Deed of Trust, the Loan Agreement and the other Loan
Documents.


 


42.           Absolute and
Unconditional Obligation.


 


The Grantor
acknowledges that the Grantor’s obligation to pay the Obligations in accordance
with the Note, this Deed of Trust and the other Loan Documents is and shall at
all times continue to be absolute and unconditional in all respects, and shall
at all times be valid and enforceable irrespective of any other agreements or
circumstances of any nature whatsoever which might otherwise constitute a
defense to the payment of the Obligations in accordance with the Note, this
Deed of Trust or the other Loan Documents, and the Grantor absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim or crossclaim of any nature whatsoever with respect to the
payment of the Obligations in accordance with the provisions of the Note, this
Deed of Trust and the other Loan Documents or otherwise with respect to the
Obligations secured hereby in any action or proceeding brought to collect the
Obligations, or any portion thereof, or to enforce, the trust or foreclose and
realize upon the Beneficiary’s interest in the Trust Property created by this
Deed of Trust.


 


43.          Waiver
of Trial by Jury.


 


The Grantor hereby irrevocably and unconditionally
waives, and the Beneficiary by its acceptance of the Note irrevocably and
unconditionally waives, any and all rights to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to
this Deed of Trust, the Note or the other Loan Documents.


 


44.           Waiver of
Statutory Rights.


 


The Grantor
shall not and will not apply for or avail itself of any appraisement,
valuation, stay, extension or exemption laws, or any so-called “Moratorium Laws,” now existing or hereafter
enacted, in order to prevent or hinder the enforcement or foreclosure of this
Deed of Trust, but hereby waives the benefit of such laws to the full extent
that the Grantor may do so under applicable law.  The Grantor for itself and all who may claim through or under it
waives any and all right to have the property and estates comprising the Trust
Property marshalled upon any foreclosure of the lien of this Deed of Trust and
agrees that the Trust Property may be sold as an entirety or in separate
parcels and in such order as may be determined by the Beneficiary, or by any
court in which any action or suit hereunder may be pending. The Grantor hereby
waives for itself and all who may claim through or under it, and to the full
extent the Grantor may do so under applicable law, any and all rights of
redemption from sale under any order or decree of foreclosure of this Deed of
Trust or granted under any statute now existing or hereafter enacted.


 


27

















 


45.           Brokerage.


 


The Grantor
covenants and agrees that no brokerage commission or other fee, commission or
compensation is to be paid by the Beneficiary on account of the Loan or any
other obligations secured by this Deed of Trust and the Grantor agrees to indemnify
the Beneficiary against any claims for any of the same.


 


46.           Indemnity.


 


Anything in
this Deed of Trust, the Note, the Loan Agreement or the other Loan Documents to
the contrary notwithstanding, the Grantor shall indemnify and hold the
Beneficiary harmless and defend the Beneficiary at the Grantor’s sole cost and
expense against any loss or liability, cost or expense (including, without
limitation, title insurance premiums and charges and reasonable attorneys’ fees
and disbursements of the Beneficiary’s counsel, whether in-house staff,
retained firms or otherwise), and all claims, actions, procedures and suits
arising out of or in connection with (a) any ongoing matters arising out
of the deed of trust transaction contemplated hereby, this Deed of Trust,
and/or the Trust Property, including, but not limited to, all costs of
reappraisal of the Trust Property or any part thereof, whether required by law,
regulation, the internal policies of the Beneficiary or any governmental or
quasi-governmental authority, (b) any amendment to, or restructuring of
this Deed of Trust and  (c) any and
all lawful action that may be taken by the Beneficiary in connection with the
enforcement of the provisions of this Deed of Trust, whether or not suit is
filed in connection with the same, or in connection with the Grantor, any
guarantor of the Loan and/or any partner, member, joint venturer or shareholder
thereof becoming a party to a voluntary or involuntary federal or state
bankruptcy, insolvency or similar proceeding. 
The foregoing indemnity shall not apply to matters caused by the gross
negligence, willful misconduct or bad faith of the Beneficiary.  All sums expended by the Beneficiary shall
be payable within five (5) days after written demand and, until reimbursed by the
Grantor pursuant hereto, shall be deemed additional principal of the
Obligations and secured hereby and shall bear interest at the Default Rate.


 


47.           Relationship.


 


The
relationship of the Beneficiary to the Grantor hereunder is strictly and solely
that of lender and obligor and grantor and beneficiary, and nothing contained
in the Note, this Deed of Trust or any other Loan Document is intended to
create, or shall in any event or under any circumstance be construed as
creating, a partnership, joint venture, tenancy-in-common, joint tenancy or
other relationship of any nature whatsoever between the Beneficiary and the
Grantor other than as set forth in this Paragraph 47.


 


48.           Loan Agreement.


 


The Grantor shall fully and faithfully
observe and perform all of the terms, covenants, conditions, provisions and
agreements contained in the Loan Agreement.


 


49.           Prior Leasehold
Deed of Trust.


 


The lien of
this Deed of Trust is subject and subordinate to the lien of that certain
Leasehold Deed of Trust dated August 23, 2002 made by the Grantor to the
Trustee for the benefit of the Beneficiary and recorded on August 23, 2002 in
the Official Records of Clark County, Nevada (the


 


28

















 


“Recorder’s Office”) as Instrument No. 00054, as amended by
that certain Agreement of Modification of Leasehold Deed of Trust dated October
25, 2002 and recorded in the Recorder’s Office on October 25, 2002 as
Instrument No. 02231.


 


50.           Intentionally
Omitted.


 


51.           The Subject Lease.


 


(a)           The Grantor shall:
(i) pay all rents, additional rents and other sums required to be paid by
the Grantor as lessee under and pursuant to the provisions of the Subject
Lease, (ii) diligently perform and observe all of the terms, covenants and
conditions of the Subject Lease on the part of the Grantor, as lessee
thereunder, to be performed and observed, unless such performance or observance
shall be waived or not required in writing by the lessor under the Subject
Lease, to the end that all things shall be done which are necessary to keep
unimpaired the rights of the Grantor, as lessee, under the Subject Lease,
(iii) promptly notify the Beneficiary in writing of any default by the
Grantor or lessor under the Subject Lease in the performance or observance of any
of the terms, covenants or conditions on the part of, respectively, the Grantor
or such lessor to be performed or observed under the Subject Lease,
(iv) promptly notify the Beneficiary of the giving of any notice by the
lessor under the Subject Lease to the Grantor (other than notices customarily
sent on a regular basis) and of any notice noting or claiming any default by
the Grantor in the performance or observance of any of the terms, covenants or
conditions of the Subject Lease on the part of the Grantor, as lessee
thereunder, to be performed or observed, and deliver to the Beneficiary a true
copy of each such notice, (v) promptly notify the Beneficiary in writing
of any request made by either party to the Subject Lease for arbitration
proceedings pursuant to the Subject Lease and of the institution of any
arbitration proceedings, as well as of all proceedings thereunder, and promptly
deliver to the Beneficiary a copy of the determination of the arbitrators in
each such arbitration proceeding, it being acknowledged and agreed that the
Beneficiary shall have the right to participate in such arbitration proceedings
in association with the Grantor or on its own behalf as an interested party,
(vi) furnish to the Beneficiary, within fifteen (15) days after demand, proof
of payment of all items which are required to be paid by the Grantor pursuant
to the Subject Lease, and (vii) not consent to the subordination of the
Subject Lease to any deed of trust with respect to the fee interest of the
lessor under the Subject Lease in the Trust Property except such as may be
agreed to by the Beneficiary.


 


(b)           The Grantor, shall
not, without the prior written consent of the Beneficiary, surrender the
leasehold estate created by the Subject Lease or terminate or cancel the Subject
Lease or modify, change, supplement, alter or amend the Subject Lease, in any
material respect, either orally or in writing, and the Grantor hereby assigns
to the Beneficiary, as further security for the payment of the Obligations and
for the performance and observance of the terms, covenants and conditions of
this Deed of Trust, all of the rights, privileges and prerogatives of the
Grantor, as lessee under the Subject Lease, to surrender the leasehold estate
created by the Subject Lease or to terminate, cancel, modify, change,
supplement, alter or amend the Subject Lease in any material respect, and any
such surrender of the leasehold estate created by the Subject Lease or
termination, cancellation, modification, change, supplement, alteration or
amendment of the Subject Lease without the prior written consent of the
Beneficiary shall be voidable at the Beneficiary’s option,  and of no force and effect.


 


(c)           Supplementing the
provisions of Paragraph 51(b), it is understood and agreed that the
Grantor shall not, without the Beneficiary’s prior written consent, elect to
treat the Subject Lease


 


29

















 


as terminated under Section
365(h)(1) of the Bankruptcy Code.  Any
such election made without the Beneficiary’s prior written consent shall be
void.  The Grantor hereby
unconditionally assigns, transfers and set over to the Beneficiary all of the
Grantor’s claims and rights to the payment of damages arising under the
Bankruptcy Code from any rejection by the lessor under the Subject Lease.  The Beneficiary shall have the right to
proceed in its own name or in the name of the Grantor in respect of any claim,
suit, action or proceeding relating to the rejection of the Subject Lease,
including, without limitation, the right to file and prosecute, to the
exclusion of the Grantor, any proofs of claim, complaints, motions,
applications, notices and other documents, in any case in respect of such
lessor under the Bankruptcy Code.  This assignment
constitutes a present, irrevocable and unconditional assignment of the
foregoing claims, rights and remedies, and shall continue in effect until all
of the Obligations secured by this Deed of Trust shall have been satisfied and
discharged in full.  Any amounts
received by the Beneficiary as damages arising out of the rejection of the
Subject Lease as aforesaid shall be applied first to all costs and expenses of
the Beneficiary (including, without limitation, attorneys’ fees) incurred in
connection with the exercise of any of its rights or remedies under this
Paragraph 51 and then shall be applied against the Obligations in such order,
priority and proportion as the Beneficiary shall determine.  If any action, motion or notice shall be
commenced or filed in respect of the Grantor, as lessee under the Subject
Lease, or all or any portion of the Trust Property in connection with any case
under the Bankruptcy Code, the Grantor shall give the Beneficiary prompt
written notice thereof and the Beneficiary shall have the option, to the
exclusion of the Grantor, exercisable upon notice from the Beneficiary to the
Grantor, to conduct and control any such litigation with counsel of the
Beneficiary’s choice.  The Beneficiary
may proceed in its own name or in the name of the Grantor in connection with any
such litigation, and the Grantor agrees to execute any and all powers,
authorizations, consents and other documents required by the Beneficiary in
connection therewith.  The Grantor
shall, upon demand, pay to the Beneficiary all costs and expenses (including,
without limitation, attorneys’ fees) paid or incurred by the Beneficiary in
connection with the prosecution or conduct of any such proceedings.  Any such costs or expenses not paid by the
Grantor as aforesaid shall be secured by this Deed of Trust and shall be added
to the Obligations.  The Grantor shall
not commence any action, suit, proceeding or case, or file any application or
make any motion, in respect of the Subject Lease in any such case under the Bankruptcy
Code without the prior written consent of the Beneficiary.  The Grantor shall, immediately after
obtaining knowledge thereof, notify the Beneficiary and its counsel, by
telecopy to the numbers set forth in the Loan Agreement, of any filing by or against
the lessor under the Subject Lease of a petition under the Bankruptcy
Code.  The Grantor shall thereafter
forthwith give written notice of such filing to the Beneficiary, setting forth
the date of such filing, the court in which the petition was filed and the
relief sought therein.  The Grantor
shall promptly deliver to the Beneficiary, following receipt, any and all
notices, summonses, pleadings, applications and other documents received by the
Grantor in connection with any such petition and any proceedings relating
thereto.


 


(d)           If the Grantor shall
default in the performance or observance of any term, covenant or condition of
the Subject Lease on the part of the Grantor, as lessee thereunder, to be
performed or observed, then, without limiting the generality of the other
provisions of this Deed of Trust and without waiving or releasing the Grantor
from any of its obligations hereunder, the Beneficiary shall have the right,
subject to the last sentence of this Paragraph 51(d), but shall be under no
obligation, to pay any sums and to perform any act or take any action as may be
appropriate to cause all of the terms, covenants and conditions of the Subject
Lease on the part of the Grantor, as lessee thereunder, to be performed or
observed to be promptly performed or observed on behalf of the Grantor, to the
end that the rights of the Grantor in, to and under the Subject Lease shall be
kept unimpaired and free from default. 
If


 


30

















 


the Beneficiary shall make any
payment or perform any act or take action in accordance with the preceding
sentence, the Beneficiary will notify the Grantor of the making of any such
payment, the performance of any such act, or the taking of any such
action.  All sums so paid by the
Beneficiary and all costs and expenses incurred by the Beneficiary in
connection with the performance of any such act shall be paid by the Grantor to
the Beneficiary upon demand with interest at the Default Rate from the date of
the payment or incurrence thereof, and the same shall be deemed to be secured
by this Deed of Trust and shall be a lien on the Trust Property prior to any
right, title to, interest in or claim upon the Trust Property attaching
subsequent to the lien of this Deed of Trust. 
In any such event, subject to the rights, if any, of sublessees and
other occupants under the Leases, the Beneficiary and any person designated by
the Beneficiary shall have, and are hereby granted, the right to enter upon the
Trust Property at any time and from time to time for the purpose of taking any
such action.  If the lessor under the
Subject Lease shall deliver to the Beneficiary a copy of any notice of default
sent by said lessor to the Grantor, as lessee under the Subject Lease, or
otherwise notify the Beneficiary of such a default, any such notice shall
provide full protection to the Beneficiary for any action taken or omitted to
be taken by the Beneficiary, in good faith, in reliance thereon and, in any
case, irrespective of whether or not an Event of Default shall have occurred
hereunder.


 


(e)           The Grantor hereby
irrevocably appoints the Beneficiary its true and lawful attorney-in-fact in
its name or otherwise to do any and all acts and to execute any and all
documents which in the reasonable opinion of the Beneficiary may be necessary
or desirable to preserve any rights of the Grantor in, to or under the Subject
Lease, or any occupancy lease, license, franchise or concession, including,
without limitation, the right (but not the obligation) to cure any defaults of
the Grantor as lessee under the Subject Lease, preserve any rights of the
Grantor whatsoever in respect of any part of the Trust Property or to execute
an extension or renewal of the Subject Lease as hereinafter set forth.  Subject to the Grantor’s rights to require
the same under the Subject Lease, the Grantor shall, within five (5) days of
request by the Beneficiary, request from the lessor under the Subject Lease
such certificates of estoppel with respect to compliance by the Grantor with
the terms of the Subject Lease as may be requested by the Beneficiary and shall
thereafter use reasonable efforts to obtain such certificates of estoppel from
such lessor.


 


(f)            The generality of
the provisions of this Paragraph 51 relating to the Subject Lease shall not be
limited by other provisions of this Deed of Trust or any other agreement
between the Beneficiary and the Grantor, setting forth particular obligations
of the Grantor which are also required of the Grantor as tenant under the
Subject Lease.


 


(g)           If the Grantor shall
become the fee owner of the Premises and/or the Improvements, the Trust
Property shall be deemed to include all right, title and interest of the
Grantor (as fee owner) in and to the Premises, the Improvements and the
remaining Trust Property, and this Deed of Trust shall be spread accordingly.


 


(h)           If a deed of trust
shall be placed against the fee interest in the Premises and for the
Improvements of the lessor under the Subject Lease, the Grantor shall not
subordinate the Subject Lease to the lien of any such fee deed of trust.


 


31

















 


52.           New Subject Lease with The
Beneficiary.


 


If the Subject
Lease shall be terminated prior to the natural expiration of its term due to a
default or event of default thereunder, and if, pursuant to any provision of
the Subject Lease or otherwise pursuant to an agreement between the Beneficiary
and such lessor, the Beneficiary or its designee shall acquire from the lessor
under the Subject Lease a new lease of the Premises and the Improvements, the
Grantor shall have no right, title or interest in or to such new lease or the
leasehold estate created thereby, or renewal privileges therein contained.


 


53.           No Merger of Fee
and Leasehold Estates.


 


So long as any
portion of the Obligations shall remain unpaid, and unless the Beneficiary
shall otherwise consent, the fee title to the Premises and the Improvements and
the leasehold estate therein created pursuant to the provisions of the Subject
Lease shall not merge, but shall always be kept separate and distinct,
notwithstanding the union of such estates in the Grantor or in any other
person, by purchase, operation of law or otherwise.  If the Beneficiary shall acquire the fee title to the Premises
and the Improvements and the leasehold estate therein created pursuant to the
provisions of the Subject Lease, by foreclosure of this Deed of Trust or
otherwise, such estates shall not merge as a result of such acquisition and
shall remain separate and distinct for all purposes after such acquisition
unless and until the Beneficiary shall elect to merge such estates.


 


54.           The Trustee.


 


(a)           Successor Trustee.  The Trustee may resign by the giving of
notice of such resignation in writing addressed to the Beneficiary, or may be
removed at any time, with or without cause, by an instrument in writing duly
executed by the Beneficiary.  The
Beneficiary shall concurrently give notice of any such resignation or removal
to the Grantor.  In case of the death,
resignation or removal of the Trustee, a successor Trustee may be appointed by
the Beneficiary without other formality than an appointment and designation in
writing unless otherwise required by applicable law.  Such appointment and designation will be full evidence of the
right and authority to make the same and of all facts therein recited, and upon
the making of any such appointment and designation, this Deed of Trust will
vest in the named successor the Trustee all the right, title and interest of
the Trustee in the Trust Property, and said successor will thereupon succeed to
all the rights, powers, privileges, immunities and duties hereby conferred upon
the Trustee.  All references herein to
the Trustee will be deemed to refer to the Trustee or trustees from time to
time acting hereunder.


 


(b)           Trustee’s Powers.  At any time, or from time to time without
liability therefor and without notice, upon written request of the Beneficiary
and presentation of this Deed of Trust for endorsement, and without affecting
the personal liability of any person for payment of the indebtedness secured
hereby or the effect of this Deed of Trust upon the remainder of the Trust
Property, the Trustee may (i) reconvey any part of the Trust Property, (ii)
consent in writing to the making of any map or plat thereof, (iii) join in
granting any easement thereon, or (iv) join in any extension agreement or any
agreement subordinating the lien or charge hereof.


 


(c)           Request for
Notice.  The Grantor hereby requests
that a copy of any notice of default and a copy of any notice of sale hereunder
be mailed to the Grantor at the address set forth in the heading of this Deed
of Trust.


 


32

















 


(d)           Full Reconveyance
by the Trustee.  To the extent that
the Trustee’s signature  is necessary on
any full reconveyance of this Deed of Trust then, upon written request of the
Beneficiary stating that all sums secured hereby have been paid, and upon
surrender of this Deed of Trust to the Trustee for cancellation and retention
(or disposal in accordance with applicable law), and upon payment by the
Grantor of the Trustee’s fees, the Trustee shall reconvey to the Grantor, or to
the person or persons legally entitled thereto, without warranty, any portion
of the Trust Property then held hereunder. 
The recitals in such reconveyance of any matters or facts shall be
conclusive proof of the truthfulness thereof. 
The grantee in any reconveyance may be described as the person or
persons legally entitled thereto.


 


(e)           Indemnity.  The Grantor shall indemnify the Trustee
against all claims, actions, liabilities, judgments, costs, attorneys’ fees or
other charges of whatsoever kind or nature made against or incurred by the
Trustee, and arising out of the performance by the Trustee of the duties of the
Trustee hereunder (except those arising from the Trustee’s grossly negligent
acts).  The foregoing indemnity shall
not terminate upon release, foreclosure or other termination of this Deed of
Trust.


 


(f)            The Beneficiary
Action in Lieu of The Trustee. 
Notwith­standing anything


contained in this Paragraph 54
or this Deed of Trust to the contrary, the Beneficiary may take any actions
(other than the exercise of the power of sale) which the Trustee is authorized
to take in all cases where trustees are not required by custom, practice or law
to take such actions on behalf of a beneficiary under a deed of trust.


 


[Remainder of page left intentionally blank]


 


33

















 


IN WITNESS WHEREOF,
the Grantor has duly executed this Deed of Trust the day and year first above
written.


 


	
   

  	
  S&W OF
  LAS VEGAS, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan M. Mandel

  	
   

  
	
   

  	
   

  	
   Name: Alan M. Mandel

  
	
   

  	
   

  	
    Title: Chief Financial Officer

  



 


	
  STATE OF NEW
  YORK

  	
  )

  
	
   

  	
  ss.:

  
	
  COUNTY OF
  NEW YORK

  	
  )

  



 


On the 19th
day of December in the year 2002 before me, the undersigned, a Notary Public in
and for said State, personally appeared Alan
M. Mandel, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.


 


	
   

  	
  /s/ Linda
  Marshall

  	
   

  
	
   

  	
  Notary
  Public

  



 


34

















 


EXHIBIT A


 


Legal Description


 


35

















 


 


EXHIBIT A-1


 


 


(Description of Subject Lease)


 


 


Lease With An
Option to Purchase, dated February 9, 1998, as modified by a First Amendment to
Lease Agreement, dated May 8, 1998; a memorandum of which was recorded pursuant
to an instrument entitled Memorandum of Lease with an Option to Purchase
recorded on February 12, 1998 in Book 980212 as Instrument No. 00979 in the
official records of Clark County, Nevada and also recorded on February 17, 1998
in Book 980217 as Instrument No. 00838.


 


36

















 


Assessor’s Parcel No.
162-21-301-014


 




 





 


S&W OF LAS VEGAS, L.L.C., Grantor


 


TO FIRST AMERICAN TITLE COMPANY OF NEVADA, INC., Trustee


 


FOR THE BENEFIT OF


 


MORGAN STANLEY DEAN WITTER


COMMERCIAL FINANCIAL SERVICES, INC., Beneficiary


 


 











LEASEHOLD DEED OF TRUST


( NEVADA )


 












 


 


	
  Dated:

  	
   

  	
  December
  19th, 2002

  
	
   

  	
   

  	
   

  
	
  Location:

  	
   

  	
  3767 Las
  Vegas Boulevard South

  
	
   

  	
   

  	
  Las Vegas,
  Clark County, Nevada

  
	
   

  	
   

  	
   

  
	
  RECORD AND RETURN TO:

  
	
   

  	
   

  	
   

  
	
  Esanu Katsky
  Korins & Siger, LLP

  605 Third Avenue

  New York, New York 10158

  
	
  Attention:

  	
   

  	
  Stephen D.
  Brodie, Esq.

  
							





 





 


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