**Exhibit 10.87**

 
|   |   | 200500000163                      |
|--------|--------|-----------------------------------|
|   |   | Filed for Record in               |
|   |   | LEWIS COUNTY MO                   |
|   |   | BRENDA GUNLOCK                    |
|   |   | 02-02-2005 At 11:05 am.           |
|   |   | DEED TRUST 141.00                 |
| [Seal] |   | OR Book 503 Page 2559 - 2598 |

 

 

**Spaceabove Line Reserved For Recorder’s Use [Space from top of page to this linemust be 3 inches]**

 
| **1.**     |   | **Title of Document****:**                              | **Fee and Leasehold Deed of Trust  with Assignment of Rents, Security Agreement and Fixture Filing**                 |
|------------|--------|---------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------|
|       |   |                                                    |                                                                                                                 |
| **2.**     |   | **Date of Document:**                                   | **January 31, 2005**                                                                                            |
|       |   |                                                    |                                                                                                                 |
| **3.**     |   | **Grantor****:**                                        | **HGI - Mark Twain**                                                                                                 |
|       |   |                                                    |                                                                                                                 |
| **4.**     |   | **Grantee****:**                                        | **Bank of America, N.A., as  Administrative Agent**                                                                  |
|       |   |                                                    |                                                                                                                 |
| **5.**     |   | **Statutory Mailing Address(es)****:**                  | **Grantor:**                                                                                                         |
| ** ** |   | ** **                                              | **c/o Herbst Gaming, Inc.**                                                                                     |
| ** ** |   | ** **                                              | **5195 Las Vegas Blvd.**                                                                                             |
| ** ** |   | ** **                                              | **Las Vegas, NV 89119**                                                                                              |
| ** ** |   | ** **                                              | **Attn: M. Higgins**                                                                                                 |
| ** ** |   | ** **                                              | ** **                                                                                                           |
| ** ** |   | ** **                                              | **Grantee:**                                                                                                         |
| ** ** |   | ** **                                              | **Bank of America, N.A.**                                                                                            |
| ** ** |   | ** **                                              | **Mail Code: TX1-492-14-11**                                                                                         |
| ** ** |   | ** **                                              | **Bank of America Plaza**                                                                                            |
| ** ** |   | ** **                                              | **901 Main Street, 14th  Floor**                                                                                     |
| ** ** |   | ** **                                              | **Dallas, TX 75202-3714**                                                                                            |
| ** ** |   | ** **                                              | **Attn: Chris M. Levine,  Assistant Vice President  Agency Management Officer II  GCIB Agency Management Central I** |
|       |   |                                                    |                                                                                                                 |
| **6.**     |   | **Legal description****:**                              | **See Exhibit A  annexed to the document**                                                                      |
|       |   |                                                    |                                                                                                                 |
| **7.**     |   | **Reference(s) to Book(s) and  Page(s)****:**           |                                                                                                                 |
|       |   |                                                    |                                                                                                                 |
| **8.**     |   | **Prepared by and following  recording return to****:** | ** **                                                                                                           |
| ** ** |   | ** **                                              | **Sheppard, Mullin,  Richter & Hampton LLP**                                                                |
| ** ** |   | ** **                                              | **333 South Hope Street, 48th  Floor**                                                                               |
| ** ** |   | ** **                                              | **Los Angeles, California 90071**                                                                                    |
| ** ** |   |                                                    | **Attn: William M. Scott  IV, Esq.**                                                                            |
|            |        |                                                         |                                                                                                                      |  |  |

 

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THIS INSTRUMENT SECURES FUTURE ADVANCES AND/OR FUTUREOBLIGATIONS WITHIN THE MEANING OF MISSOURI REVISED STATUTES §443.055, ASAMENDED, THE TOTAL PRINCIPAL AMOUNT OF WHICH SHALL NOT EXCEED $275,000,000.00PLUS FUTURE ADVANCES AND/OR FUTURE OBLIGATIONS MADE OR INCURRED FOR THEREASONABLE PROTECTION OF THE SECURITY OR TO ENABLE COMPLETION OF A CONTEMPLATEDIMPROVEMENT, ALL AS CONTEMPLATED BY SUBSECTION 3 OF SAID §443.055, ANDTHIS INSTRUMENT IS TO BE COVERED BY SAID §443.055.

 
| RECORDING  REQUESTED BY  AND WHEN RECORDED MAIL TO:                                                                                                         |   |                                      |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-------------------------------------------|
| Sheppard,  Mullin, Richter & Hampton LLP  333 South Hope Street, 48th Floor  Los Angeles, CA 90071-1448  Attn: William M. Scott IV, Esq. |   |                                      |
|                                                                                                                                                        |   | THIS  SPACE ABOVE FOR RECORDER’S USE |

 

FEE AND LEASEHOLD DEED OF TRUSTwith Assignment of Rents, Security Agreement andFixture Filing

 

The parties to this Fee and Leasehold Deed of Trustwith Assignment of Rents, Security Agreement and Fixture Filing (“Deed of Trust”),dated as of January 31, 2005, are HGI – MARK TWAIN, a Nevada corporation (“Trustor”),as trustor, TODD W. GRIFFEE, ESQ., as trustee (“Trustee”), and BANK OF AMERICA,N.A., as “Administrative Agent” for the “Lenders” including, withoutlimitation, “the Swing Line Lender” (as each of those three terms is defined inthe Credit Agreement), as beneficiary and secured party (“Beneficiary”).  Capitalized terms used and not otherwisedefined herein shall have the meanings given to them in that certain CreditAgreement, dated as of October 8, 2004 (as amended, extended, renewed, modifiedor supplemented from time to time, the “Credit Agreement”) by and among HerbstGaming, Inc., a Nevada corporation (“Borrower”), each lender whose name isset forth on the signature pages therein and each lender that mayhereafter become a party to the Credit Agreement pursuant to Section 10.06therein (each a “Lender” and collectively, the “Lenders”), Bank of America,N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.  The Credit Agreement initially provided forRevolving Loans in the aggregate principal amount of $175,000,000.  Concurrently herewith, the Credit Agreementis being amended by a Term Joinder Agreement pursuant to which Term Loans inthe aggregate principal amount of $100,000,000 are being extended to theBorrower in addition to such Revolving Loans, for an aggregate credit facilityof $275,000,000.

 

The lenders party to the Credit Agreement as of thedate of this Deed of Trust are listed on Exhibit B.

 

1.             Grant in Trust and Secured Obligations.

 

1.1           Grant in Trust.  For the purposeof securing payment and performance of the Secured Obligations defined anddescribed in Section 1.2, Trustor hereby irrevocably and

 

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unconditionally grants and sells, mortgages, warrants, conveys,confirms, assigns and sets over unto Trustee, in trust for the benefit ofBeneficiary, with power of sale and right of entry and possession, all estate,right, title and interest which Trustor now has or may later acquire in and tothe following property (all or any part of such property, or any interest inall or any part of it, as the context may require, the “Property”):

 

(a)           All of Trustor’s right, title and interest under andin connection with that certain Lease dated as of December 29, 1999, betweenCity of LaGrange, Missouri, a special charter city and municipal corporation,as landlord, and Mark Twain Casino, L.L.C., a Missouri limited liabilitycompany, as original tenant and predecessor in interest to Trustor (the “OperatingLease”), a memorandum of which (the “Memorandum of Lease”) dated September 11,2000, was recorded on September 29, 2000, in Book 436 at Page 106, inthe Official Records (the “Official Records”) of Lewis County (the “County”),including, without limitation, (i) all options to extend or renew theOperating Lease (and the leasehold estate for the term of each extension orrenewal), (ii) all options and rights of first refusal contained in theOperating Lease to purchase the real property which is subject to the OperatingLease, and (iii) all of Trustor’s other rights, titles and interests underthe Operating Lease; together with

 

(b)           The real property located in the County, State ofMissouri, as described in Exhibit A, together with all existing andfuture easements and rights affording access to it (the “Land”); together with

 

(c)           The decommissioned vessel located in the man-made moaton the Land, and all other buildings, structures and improvements now locatedor later to be constructed on the Land, including, without limitation, allparking areas, roads, driveways, walks, fences, walls, docks, berms,landscaping, recreation facilities, drainage facilities, lighting facilitiesand other site improvements (the “Improvements”); together with

 

(d)           All existing and future appurtenances, privileges,easements, franchises, hereditaments and tenements of the Land, including allminerals, oil, gas, other hydrocarbons and associated substances, sulphur,nitrogen, carbon dioxide, helium and other commercially valuable substanceswhich may be in, under or produced from any part of the Land, all developmentrights and credits, air rights, water, water courses, water rights (whetherriparian, appropriative or otherwise, and whether or not appurtenant), waterstock and water permits (together with the statutory right to file applicationsto change, and any and all applications to change the same), including anywater permits, easements, rights of way, rights of ingress and egress, drainagerights, gores or strips of land, any land lying in the streets, highways, ways,sidewalks, alleys, passages, roads or avenues, open or proposed, in front of oradjoining the Land and Improvements, any land in the bed of any body of wateradjacent to the Land, any land adjoining the Land created by artificial meansor by accretion, all air space and rights to use such air space, and alldevelopment and similar rights; together with

 

(e)           Subject to Article 2, below, all existingand future leases, subleases, subtenancies, licenses (except for gaminglicenses and liquor licenses that are

 

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nottransferable), occupancy agreements, concessions and any other agreementdevising any portion of the Property or relating to the use and enjoyment ofall or any part of the Land and Improvements, and any and all guaranties andother agreements relating to or made in connection with any of the foregoing,whether written or oral and whether in existence at or upon the recordation ofthis Deed of Trust or entered into after the recordation of this Deed of Trust(some or all collectively, as the context may require, “Leases”), and allrents, security deposits, royalties, issues, profits, receipts, earnings,revenue, income, products and proceeds and other benefits of the Land and Improvements,whether now due, past due or to become due, including, without limitation, allprepaid rents, security deposits, fixed, additional and contingent rents,deficiency rents and liquidated damages, license fees, occupancy charges, hotelroom charges, cabana charges, casino revenues, show ticket revenues, food andbeverage revenues, room service revenues, merchandise sales revenues, parking,maintenance, common area, tax, insurance, utility and service charges andcontributions, proceeds of sale of electricity, gas, heating, air-conditioning,cable and other utilities and services, green fees, cart rental fees,instruction fees, membership charges, restaurant, snack bar and pro shoprevenues, liquidated damages, and all other rights to payments, together withand any and all guaranties and other agreements relating to or made inconnection with any of such leases (some or all collectively, as the contextmay require, “Rents”); together with

 

(f)            All goods, materials, supplies, chattels, furniture,fixtures, equipment, machinery and other property now or later to be attachedto, placed in or on, or used in connection with the use, enjoyment, occupancyor operation of all or any part of the Land and Improvements, whether stored onthe Land or elsewhere, including all pumping plants, engines, pipes, ditchesand flumes, and also all gas, electric, cooking, heating, cooling, airconditioning, lighting, refrigeration and plumbing fixtures and equipment, allwater, sanitary and storm sewer, drainage, electricity, steam, gas, telephone,cable and other utility equipment and facilities, all plumbing, lighting,heating, ventilating, air conditioning, refrigerating, incinerating,compacting, fire protection and sprinkler, surveillance and security, vacuumcleaning, public address and communications equipment and systems, all kitchenand laundry appliances, screens, awnings, floor coverings, partitions,elevators, escalators, motors, machinery, pipes, fittings and other items ofequipment and property of every kind and description, all of which shall beconsidered to the fullest extent of the law to be real property for purposes ofthis Deed of Trust (it being agreed that, if the lien of this Deed of Trustshall be subject to a conditional bill of sale, chattel mortgage, or othersecurity interest covering any such property, then all the right, title andinterest of Trustor in and to such property, together with the benefits of anydeposits or payments now or hereafter made thereon, are and shall be covered bythe lien of this Deed of Trust); together with

 

(g)           All building materials, equipment, work in process orother personal property of any kind, whether stored on the Land or elsewhere,which have been or later will be acquired for the purpose of being deliveredto, incorporated into or installed in or about the Land or Improvements;together with

 

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(h)           All rights to the payment of money, accounts, accountsreceivable, reserves, deferred payments, refunds, cost savings, payments anddeposits, room revenues, food revenues, beverage revenues and casino revenues,whether now or later to be received from third parties (including all earnestmoney sales deposits) or deposited by Trustor with third parties (including allutility deposits), contract rights, development and use rights, governmentalpermits and licenses (except for gaming licenses and liquor licenses that arenot transferable), authorizations, certificates, variances, consents andapprovals, applications, architectural and engineering plans, specificationsand drawings, as-built drawings, guaranties, warranties, management agreements,operating and/or licensing agreements, supply and service contracts for water,sanitary and storm sewer, drainage, electricity, steam, gas, telephone, cable,satellite, and other utilities, property and title insurance policies andproceeds thereof (including without limitation the right to assert, prosecuteand settle claims under such policies), chattel paper, instruments, documents,notes, certificates of deposit, securities, other investments, drafts andletters of credit (other than letters of credit in favor of Beneficiary), whicharise from or relate to construction on the Land or to any business now orlater to be conducted on it, or to the Land and Improvements generally;together with

 

(i)            All proceeds, including all rights and claims to,dividends of and demands for them, of the voluntary or involuntary conversionof any of the Land, Improvements or the other property described above intocash or liquidated claims, including proceeds of all present and future fire,hazard or casualty insurance policies (whether or not any such insurance policyis required by this Deed of Trust or any other Loan Document) and allcondemnation awards or payments now or later to be made by any public body ordecree by any court of competent jurisdiction for any taking or in connectionwith any condemnation or eminent domain proceeding, and all causes of actionand their proceeds for any damage or injury to the Land, Improvements or theother property described above or any part of them, or breach of warranty inconnection with the construction of the Improvements, including causes ofaction arising in tort, contract, fraud or concealment of a material fact;together with

 

(j)            All books and records pertaining to any and all of theproperty described above, including computer readable memory and any computerhardware or software necessary to access and process such memory (“Books andRecords”); together with

 

(k)           All proceeds of, additions and accretions to,substitutions and replacements for, changes in, and greater right, title andinterest in, to and under or derived from, any of the property described aboveand all extensions, improvements, betterments, renewals, substitutions andreplacements thereof and additions and appurtenances thereto, including allproceeds of any voluntary or involuntary disposition or claim, right and remedyrespecting any such property (arising out of any judgment, condemnation oraward, or otherwise arising) and all goods, documents, general intangibles,chattel paper and accounts, wherever located, acquired with cash proceeds ofany of the foregoing or its proceeds.

 

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Notwithstanding the foregoing, the term “Property,” asused in this Deed of Trust, shall not include (i) any personal property orfixtures, the purchase of which was financed by a purchase money securityinterest, including any capital lease obligation, permitted under the CreditAgreement to the extent that the documents creating such purchase moneysecurity interest or capital lease prohibit the granting thereon, but only forso long as the related indebtedness remains outstanding, (ii) any capitalstock or other equity interests in any gaming licenses, and (iii) anygaming licenses and liquor licenses which are not transferable.

 

Trustor shall and will warrant and forever defend theProperty in the quiet and peaceable possession of the Trustee, its successors andassigns against all and every Person or Persons lawfully claiming or to claimthe whole or any part thereof.  Trustoragrees that any greater title to the Property hereafter acquired by Trustorduring the term hereof shall be subject hereto.

 

1.2           Secured Obligations.

 

1.2.1        Trustor makes the grant, bargain, conveyance, sale,transfer and assignment set forth in Section 1.1 and grants thesecurity interest set forth in Article 3 for the purpose ofsecuring the following obligations (collectively, the “Secured Obligations”) inany order of priority that Beneficiary may choose:

 

(a)           Except as specified in Section 1.2.2below, the payment and performance of each obligation of Trustor pursuant tothat certain Guaranty (as amended as of the date hereof, the “Guaranty”), datedJune 10, 2004, entered into by Trustor in favor of Beneficiary pursuant tothat Instrument of Joinder to Guaranty dated as of October 8, 2004.  The Guaranty has been entered into by Trustorto, among other things, guaranty the payment and performance of all obligationsof Borrower to Beneficiary under the Credit Agreement and all related LoanDocuments, pursuant to which the Lenders have extended or have agreed to extendto the Borrower certain secured revolving and term credit facilities, presentlyin the aggregate principal amount of $275,000,000 (the “Commitment”),including, but not limited to the payment of all amounts owing under the SwingLine, the payment of all amounts owing with respect to the Letters of Credit,including without limitation unreimbursed drawings and obligations to furnishcash collateral as provided in the Credit Agreement, and the payment of allamounts owing under any and all Secured Swap Contracts entered into by theBorrower with any Lender or Affiliate thereof;

 

(b)           The payment and performance of all future advances andother obligations that Trustor or any other Person or entity may owe toBeneficiary and/or any Lender (whether as principal, surety or guarantor), whena writing evidences Trustor’s and Beneficiary’s agreement that such advances orobligations be secured by this Deed of Trust;

 

(c)           The payment and performance of all obligations ofTrustor under this Deed of Trust;

 

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(d)           The payment and performance of all modifications,amendments, extensions and renewals, however evidenced, of any of the SecuredObligations described in clause (a), (b) or (c) above.

 

1.2.2        Notwithstanding any provision of this Deed of Trust orany other Loan Document, the obligations and liability of Trustor, any Borroweror any other Person arising under Sections 5.09 and/or 10.04 ofthe Credit Agreement (and/or under any separate agreement relating to HazardousMaterials which states that it is not secured by real property) are not andshall not be Secured Obligations under this Deed of Trust.

 

1.2.3        All Persons who may have or acquire an interest in allor any part of the Property will be considered to have notice of, and will bebound by, the terms of the Secured Obligations and each other agreement orinstrument made or entered into in connection with each of the SecuredObligations.  Such terms include anyprovisions in the Credit Agreement or the other Loan Documents which permitborrowing, repayment and reborrowing, or which provide that the interest rateon one or more of the Secured Obligations may vary from time to time.

 

1.2.4        In addition to the indebtedness evidenced by theGuaranty and all other Secured Obligations, this Deed of Trust, to the fullestextent permitted by the Laws of the State of Missouri, shall secure also andconstitute a Lien on the Property for all future advances made by theBeneficiary to Borrower and future obligations incurred by Borrower toBeneficiary in connection with the Property to the same extent as if suchfuture advances were made or such future obligations incurred on the date ofthe execution of this Deed of Trust.  Thetotal amount of the indebtedness that may be secured by this Deed of Trustshall not exceed a maximum principal amount equal to $275,000,000.00 plusfuture advances and/or future obligations made or incurred for the reasonableprotection of the security or to enable completion of a contemplatedimprovement, all as contemplated by Subsection 3 of §443.055, MissouriRevised Statutes, and this instrument is to be governed by said §443.055.

 

2.             Assignment of Rents and Leases.

 

2.1           Assignment.  Trustorhereby irrevocably, absolutely, presently and unconditionally assigns,transfers and sets over to Beneficiary all of the right, title and interestwhich Trustor now has or may later acquire in and to the Rents and the Leases,and confers upon Beneficiary the right to collect such Rents and enforce theprovisions of the Leases with or without taking possession of the Property.  This is an absolute assignment, not anassignment for security only.

 

2.2           Grant of License.  Beneficiaryhereby confers upon Trustor a license (“License”) to collect and retain theRents as they become due and payable, so long as no Event of Default, asdefined in Section 6.2, shall exist and be continuing.  If an Event of Default has occurred and iscontinuing, Beneficiary shall have the right, which it may choose to exercisein its absolute discretion, to terminate this License without notice to ordemand upon Trustor, and without regard to the adequacy of Beneficiary’ssecurity under this Deed of Trust.

 

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2.3           Collection and Application of Rents. Subject to the License granted to Trustor under Section 2.2,Beneficiary has the right, power and authority to collect any and all Rents andexercise Trustor’s right, title and interest under the Leases.  Trustor hereby appoints Beneficiary itsattorney-in-fact to perform any and all of the following acts, if and at the timeswhen Beneficiary in its absolute discretion may so choose:

 

(a)           Demand, receive and enforce payment of any and allRents and any other right, title and interest of Trustor under the Leases; or

 

(b)           Give receipts, releases and satisfactions for any and allRents and any other obligations and duties under the Leases; or

 

(c)           Sue either in the name of Trustor or in the name ofBeneficiary for any and all Rents and to enforce any other obligations andduties under the Leases.

 

Beneficiary’s right to the Rents and the Leases doesnot depend on whether or not Beneficiary takes possession of the Property aspermitted under Section 6.3.3. In Beneficiary’s absolute discretion, Beneficiary may choose to collectRents and exercise the right, title and interest of Trustor under the Leaseseither with or without taking possession of the Property.  Beneficiary shall apply all Rents collectedby it in the manner provided under Section 6.6.  If an Event of Default shall have occurredand Beneficiary is in possession of all or part of the Property and iscollecting and applying Rents and exercising any right, title and interest ofTrustor under the Leases as permitted under this Deed of Trust, thenBeneficiary, Trustee and any receiver shall nevertheless be entitled to exerciseand invoke every right and remedy afforded any of them under this Deed of Trustand at law and in equity, including the right to exercise the power of salegranted under Section 1.1 and Section 6.3.7.

 

2.4           Beneficiary Not Responsible. Under no circumstances shall Beneficiary have any duty to produce Rentsfrom the Property or maintain the Leases. Regardless of whether or not Beneficiary, in Person or by agent, takesactual possession of the Land and Improvements, Beneficiary is not and shallnot be deemed to be:

 

(a)           a “mortgagee in possession” for any purpose; or

 

(b)           responsible for performing any of the obligationsunder any Lease; or

 

(c)           responsible for any waste committed by lessees or anyother parties, any dangerous or defective condition of the Property, or anynegligence in the management, upkeep, repair or control of the Property; or

 

(d)           liable in any manner for the Property or the use,occupancy, enjoyment or operation of all or any part of it.

 

Notwithstanding the foregoing, this Section 2.4shall not be construed as a waiver of any liability of Beneficiary to Trustorthat would otherwise exist as a result of Beneficiary’s gross negligence orwillful misconduct.

 

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2.5           Leasing.  Without Beneficiary’sprior written consent, Trustor shall not accept any deposit or prepayment ofRents for any period exceeding one (1) month, and Trustor shall not leasethe Property or any part of it except strictly in accordance with the LoanDocuments.  Trustor shall not apply anyRents in any manner prohibited by the Loan Documents.

 

3.             Grant of Security Interest.

 

3.1           Security Agreement.  The partiesintend for this Deed of Trust to create a lien on and security interest in theProperty, and an absolute assignment of the Rents and the Leases, all in favorof Beneficiary.  The parties acknowledgethat some of the Property and some of the Rents and Leases may be determinedunder applicable law to be personal property or fixtures.  To the extent such Property, Rents or Leasesconstitute personal property, Trustor, as debtor, hereby grants to Beneficiary,as secured party, a security interest in all such Property, Rents and Leases,to secure payment and performance of the Secured Obligations, and Trustor, asdebtor, also has granted a security interest in such Property, Rents and Leasespursuant to that certain Amended and Restated Security Agreement dated October 8,2004, executed by the Borrower and each of its Subsidiaries, as debtor, infavor of Beneficiary, as secured party, as modified from time to time.  This Deed of Trust constitutes a securityagreement under the Missouri Uniform Commercial Code, as amended or recodifiedfrom time to time, covering all such Property, Rents and Leases.  To the extent any revenues generated inconnection with the operation of the Property from time to time are not realproperty encumbered by the lien created by Section 1.1, above, andare not absolutely assigned by the assignment set forth in Section 2.1,above, it is the intention of the parties that such revenues shall constitute “proceeds,products, offspring, rents or profits” (as defined in and for the purposes of Section 552(b) ofthe United States Bankruptcy Code, as such section may be modified orsupplemented) of the Land and Improvements, and/or “fees, charges, accounts, orother payments for the use or occupancy of rooms and other public facilities inhotels, motels or other lodging properties,” as applicable (as such terms aredefined in and for the purpose of Section 552(b) of the United StatesBankruptcy Code, as such Section may be modified or supplemented).

 

3.2           Financing Statements.  Trustorconsents to the filing by Beneficiary  ofone or more financing statements and such other documents as Beneficiary mayfrom time to time require to perfect or continue the perfection of Beneficiary’ssecurity interest in any Property, Rents or Leases.  As provided in Section 5.11,Trustor shall pay all fees and costs that Beneficiary may incur in filing suchdocuments in public offices and in obtaining such record searches asBeneficiary may reasonably require.  IfTrustor fails to execute any financing statements or other documents for theperfection or continuation of any security interest, Trustor hereby appointsBeneficiary as its true and lawful attorney-in-fact (which appointment isirrevocable and coupled with an interest) to execute any such documents on itsbehalf.  If any financing statement orother document is filed in the records normally pertaining to personal property,that filing shall never be construed as in any way derogating from or impairingthis Deed of Trust or the rights or obligations of the parties under it.

 

4.             Fixture Filing.  This Deed ofTrust constitutes a financing statement filed as a fixture filing under theMissouri Uniform Commercial Code, as amended or recodified from time to time,covering any Property which now is or later may become fixtures attached to theLand or

 

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Improvements.  In connectiontherewith, the addresses of Trustor, as debtor, and Beneficiary, as securedparty, are as set forth in Section 8.11, below.  The foregoing address of Beneficiary, assecured party, is also the address from which information concerning thesecurity interest may be obtained by any interested party.  The property subject to this fixture filingis described in Section 1.1, above. Portions of the property subject to this fixture filing as identified inthis Section are or are to become fixtures related to the real estatedescribed in Exhibit A attached hereto.

 

5.             Rights and Duties of the Parties.

 

5.1           Representations and Warranties. Trustor represents and warrants that, except as previously disclosed toBeneficiary in a writing making reference to this Section 5.1:

 

(a)           Trustor lawfully possesses and holds fee simple titleto all of the Land and Improvements thereon and has or will have good title toall Property (other than personal property utilized by Trustor under suchequipment leases and similar financing arrangements as were disclosed toBeneficiary in writing prior to the execution of this Deed of Trust or as arehereafter entered into by Trustor in accordance with the Credit Agreement);

 

(b)           Trustor has the full and unlimited power, right andauthority to encumber the Property and assign the Rents and the Leases;

 

(c)           This Deed of Trust creates a first and prior lien onand security interest in the Property;

 

(d)           The Property includes all property and rights whichmay be reasonably necessary to promote the present beneficial use and enjoymentof the Land and Improvements;

 

(e)           Trustor owns any Property which is personal propertyfree and clear of any security agreements, reservations of title or conditionalsales contracts, and there is no financing statement affecting such personalproperty on file in any public office (other than personal property utilized byTrustor under such equipment leases and similar financing arrangements as weredisclosed to Beneficiary in writing prior to the execution of this Deed ofTrust or as are hereafter entered into by Trustor in accordance with the CreditAgreement);

 

(f)            Trustor’s place of business, or its chief executiveoffice if it has more than one place of business, is located at the addressspecified below; and

 

(g)           The Property is located in an area having oridentified as having special flood hazards or any similar designation under theNational Flood Insurance Act of 1968, as amended or recodified from time totime, or the Flood Disaster Protection Act of 1973, as amended or recodifiedfrom time to time.

 

5.2           Taxes and Assessments.  Trustor shallpay prior to delinquency all taxes, levies, charges and assessments, includingassessments on appurtenant water stock, imposed by

 

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any public or quasi-public authority or utility company which are (orif not paid, may become) a lien on or security interest in all or part of theProperty or any interest in it, or which may cause any decrease in the value ofthe Property or any part of it.  If anysuch taxes, levies, charges or assessments become delinquent, Beneficiary mayrequire Trustor to present evidence that they have been paid in full, on ten (10) days’written notice by Beneficiary to Trustor. This Section 5.2 is subject to the right granted in Section 5.11of the Credit Agreement to contest in good faith certain taxes, assessments,charges and levies.

 

5.3           Performance of Secured Obligations. Trustor shall promptly pay and perform each Secured Obligation in accordancewith its terms.

 

5.4           Liens, Charges and Encumbrances. Trustor shall immediately discharge any lien on or security interest inthe Property to which Beneficiary has not consented in writing.  Subject to any applicable rights to contestset forth in the Credit Agreement, Trustor shall pay, prior to delinquency,each obligation secured by or reducible to a lien, security interest, charge orencumbrance which now does or later may encumber or appear to encumber all orpart of the Property or any interest in it, whether the lien, securityinterest, charge or encumbrance is or would be senior or subordinate to thisDeed of Trust.

 

5.5           Damages and Insurance and Condemnation Proceeds.

 

5.5.1        Trustor hereby absolutely and irrevocably assigns toBeneficiary, and authorizes the payor to pay to Beneficiary, the followingclaims, causes of action, awards, payments and rights to payment:

 

(a)           All awards of damages and all other compensationpayable directly or indirectly because of a condemnation, proposed condemnationor taking for public or private use which affects all or part of the Propertyor any interest in it; and

 

(b)           All other awards, claims and causes of action, arisingout of any warranty affecting all or any part of the Property, or for damage orinjury to or decrease in value of all or part of the Property or any interestin it; and

 

(c)           All proceeds of any insurance policies payable becauseof loss sustained to all or part of the Property; and

 

(d)           All interest which may accrue on any of the foregoing.

 

5.5.2        Trustor shall immediately notify Beneficiary inwriting if:

 

(a)           Any damage occurs or any injury or loss is sustainedin the amount of $250,000 or more to all or part of the Property, or any actionor proceeding relating to any such damage, injury or loss is commenced; or

 

(b)           Any offer is made, or any action or proceeding iscommenced, which relates to any actual or proposed condemnation or taking ofall or part of the Property.

 

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5.5.3        If Beneficiary chooses to do so, Beneficiary may inits own name appear in or prosecute any action or proceeding to enforce anycause of action based on warranty, or for damage, injury or loss to all or partof the Property and, while any Event of Default remains uncured, Beneficiarymay make any compromise or settlement of the action or proceeding.  Beneficiary, if it so chooses, mayparticipate in any action or proceeding relating to condemnation or taking ofall or part of the Property, and may join Trustor in adjusting any loss coveredby insurance.  Trustor hereby irrevocablyappoints Beneficiary its true and lawful attorney-in-fact for all suchpurposes.  The power of attorney grantedhereunder is coupled with an interest and is irrevocable.  Trustor shall not settle, adjust orcompromise any such action or proceeding without the prior written approval ofBeneficiary, which shall not be unreasonably withheld or delayed.

 

5.5.4        All proceeds of these assigned claims, other propertyand rights which Trustor may receive or be entitled to (collectively, “Proceeds”)shall be paid to Beneficiary.  In eachinstance, Beneficiary shall apply such Proceeds first toward reimbursement ofall of Beneficiary’s costs and expenses of recovering the Proceeds, includingattorneys’ fees.  If, in any instance,each and all of the following conditions (the “Restoration Conditions”) aresatisfied in Beneficiary’s reasonable judgment, Beneficiary shall permitTrustor to use the balance of such Proceeds (“Net Claims Proceeds”) to paycosts of repairing or reconstructing the Property in the manner describedbelow:

 

(a)           The plans and specifications, cost breakdown,construction contract, construction schedule, contractor and payment andperformance bond for the work of repair or reconstruction must all bereasonably acceptable to Beneficiary; and

 

(b)           Beneficiary must receive evidence reasonablysatisfactory to it that, after repair or reconstruction, the Property will beat least as valuable as it was immediately before the damage or condemnationoccurred; and

 

(c)           The Net Claims Proceeds must be sufficient inBeneficiary’s reasonable determination to pay for the total cost of repair orreconstruction, including all associated development costs and interestprojected to be payable on the Secured Obligations until the repair orreconstruction is complete; or Trustor must provide its own funds in an amountequal to the difference between the Net Claims Proceeds and a reasonableestimate, made by Trustor and found acceptable by Beneficiary, of the totalcost of repair or reconstruction; and

 

(d)           No Event of Default shall have occurred and becontinuing.

 

If Beneficiary finds that such conditions have beenmet, Beneficiary shall hold the Net Claims Proceeds and any funds which Trustoris required to provide in an interest-bearing passbook savings account andshall disburse them to Trustor on a monthly basis in accordance withBeneficiary’s customary construction lending procedures.  However, if an Event of Default has occurredand is continuing, Beneficiary may apply the Net Claims Proceeds to pay orprepay (without premium) some or all of the Secured Obligations in such orderand proportions as Beneficiary in its absolute discretion may choose (subjectto the provisions for priority of application of payments set forth in theCredit Agreement).  Any and all Proceeds(including,

 

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without limitation, any Net Claims Proceeds) held byBeneficiary from time to time shall be collateral for the Secured Obligations,and Trustor hereby grants to Beneficiary a security interest in and lien onsuch Proceeds and all rights and remedies available under applicable laws withrespect to such Proceeds, including, without limitation, all rights andremedies under the Missouri Uniform Commercial Code.  Trustor shall execute and deliver toBeneficiary and the Lenders any and all documents reasonably requested byBeneficiary in order to confirm, create and perfect such security interest inand lien on such Proceeds.  In the eventthat any Proceeds are applied to pay any Secured Obligations, then Beneficiaryshall have no obligation to disburse or release such applied Proceeds toTrustor under this Section 5.5. If no Event of Default shall have occurred and be continuing, any fundsremaining upon completion of the repair or reconstruction shall be returned toTrustor.

 

5.5.5        Trustor hereby specifically, unconditionally andirrevocably waives all rights of a property owner granted under applicable law,which provide for allocation of condemnation proceeds between a property ownerand a lienholder, and any other law or successor statute of similarimport.  Trustor hereby specifically,unconditionally and irrevocably waives all right to recover against Beneficiaryor any Lender (or any officer, employee, agent or representative of Beneficiaryor any Lender) for any loss incurred by Trustor from any cause insured againstor required by any Loan Document to be insured against; provided, however, thatthis waiver of subrogation shall not be effective with respect to any insurancepolicy if the coverage thereunder would be materially reduced or impaired as aresult.

 

5.5.6        Notwithstanding anything to the contrary set forth inthis Section 5.5, so long as no Event of Default remains uncured,the proceeds of any casualty or condemnation for which the gross value of theapplicable damage and/or taking is less than $250,000 shall be paid to Trustorrather than to Beneficiary (and shall be delivered to Trustor if received byBeneficiary), and Trustor shall not be required to obtain Beneficiary’s consentto settle, adjust or compromise any action or proceeding relating to any suchcasualty or condemnation (nor shall Beneficiary be entitled to participate insuch action or proceeding).

 

5.6           Maintenance and Preservation of Property.

 

5.6.1        Except as permitted in the Credit Agreement, Trustorshall not remove or demolish the Property or any part of it, or alter, restoreor add to the Property, or initiate or allow any change in any zoning or other landuse classification which affects the Property or any part of it, except aspermitted or required by the Credit Agreement or with Beneficiary’s expressprior written consent in each instance; provided that, without Beneficiary’sconsent, Trustor shall be entitled to remove personal property in the ordinarycourse of Trustor’s business so long as any such personal property is replacedwith property of comparable value.

 

5.6.2        If all or part of the Property becomes damaged ordestroyed, Trustor shall promptly and completely repair and/or restore theProperty in a good and workmanlike manner in accordance with sound buildingpractices, regardless of whether or not Beneficiary agrees to disburseinsurance proceeds or other sums to pay costs of the work of repair orreconstruction under Section 5.5.

 

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5.6.3        Trustor shall not commit or allow any act upon or useof the Property which would violate:  (i) anyapplicable law or order of any Governmental Agency, whether now existing orlater to be enacted and whether foreseen or unforeseen (except to the extentthat noncompliance would not cause a Material Adverse Effect or a LicenseRevocation); or (ii) any public or private covenant, condition,restriction or equitable servitude affecting the Property.  Trustor shall not bring or keep any article onthe Property or cause or allow any condition to exist on it, that couldinvalidate or would be prohibited by any insurance coverage required to bemaintained by Trustor on the Property or any part of it under this Deed ofTrust.

 

5.6.4        Trustor shall not commit or allow waste of theProperty.

 

5.6.5        Trustor shall perform all other acts which from thecharacter or use of the Property may be reasonably necessary to maintain andpreserve its value. Without limiting the generality of the forgoing, Trustorshall protect and preserve all easements, rights-of-way and other appurtenancesto the Land and/or Improvements.  Trustorshall not cause or allow any such easement, right-of-way and other appurtenanceto be cancelled, rejected or otherwise terminated, or modified (except for suchterminations that occur pursuant to the terms of such easement, right of wayand other appurtenance).

 

5.7           Insurance.

 

5.7.1        Trustor shall maintain the following insurance withrespect to the Property:

 

(a)           Trustor shall provide, maintain and keep in force atall times during any period of construction with respect to the portion of theProperty affected by such construction a policy or policies of builder’s “allrisk” insurance in nonreporting form in an amount not less than the fullinsurable completed value of such portion of the Property on a replacement costbasis.  The policy or policies shallinsure against loss or damage by hazards customarily included within such “allrisk” policies and any other risks or hazards which Beneficiary may reasonablyspecify (and shall include boiler and machinery insurance from and after thedate on which any such equipment is installed on the Property), and each shallcontain a Lender’s Loss Payable Endorsement (Form 438 BFU or equivalent)in favor of Beneficiary; provided that Beneficiary shall not be entitled torequire Trustor to insure the Property against earthquake risks during anyperiod in which earthquake insurance is not available with respect to theProperty at commercially reasonable rates.

 

(b)           Trustor shall provide, maintain and keep in force atall times for all portions of the Property not covered by a policy or policiesdescribed in Section 5.7.1(a), above, a policy or policies of fireand hazards “all risk” insurance providing extended coverage, in an amount notless than the full insurable value of such portions of the Property on areplacement cost basis.  The policy orpolicies shall insure against loss or damage by hazards customarily includedwithin “all risk” and “extended coverage” policies and any other risks orhazards which Beneficiary may reasonably specify (and shall include boiler andmachinery insurance), and each shall contain a Lender’s Loss PayableEndorsement (Form 438 BFU or equivalent) in favor of Beneficiary.

 

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(c)           Trustor shall provide, maintain and keep in force atall times for all portions of the Property any policy or policies of businessinterruption insurance that Beneficiary reasonably requires (includinginsurance against income loss during a period of at least six (6) months),and each such policy shall contain a Lender’s Loss Payable Endorsement (Form 438BFU or equivalent) in favor of Beneficiary.

 

(d)           Trustor shall provide, maintain and keep in force atall times a policy or policies of comprehensive liability insurance namingBeneficiary and the Lenders as additional insureds, on an “occurrence” basis,against claims for “personal injury” liability, including bodily injury, deathor property damage liability, with a limit of not less than Thirty-Five MillionDollars ($35,000,000) for the first sixty (60) days following the TermEffective Date and not less than Fifty Million Dollars ($50,000,000)thereafter.  Such insurance shall beprimary and noncontributory with any other insurance carried by Beneficiaryand/or any Lender(s).

 

(e)           Trustor shall provide, maintain and keep in force atall times such policies of worker’s compensation insurance as may be requiredby applicable laws (including employer’s liability insurance, if required byBeneficiary), covering all employees of Trustor.

 

(f)            Trustor shall provide, maintain and keep in force atall times any and all additional insurance that Beneficiary (as instructed bythe Requisite Lenders) may from time to time require, so long as such insuranceis available in the commercial market at reasonable rates.

 

(g)           If the Property is required to be insured pursuant tothe Flood Disaster Protection Act of 1973 or the National Flood Insurance Actof 1968, and the regulations promulgated thereunder, because it is located inan area which has been identified by the Secretary of Housing and UrbanDevelopment as a Flood Hazard Area, then Trustor shall provide, maintain andkeep in force at all times a flood insurance policy covering the Property inlimits that would exceed the damage caused by what is expected to be the mostsevere flood (or any greater limits to the extent required by applicable lawfrom time to time), containing a Lender’s Loss Payable Endorsement (Form 438BFU or equivalent) in favor of Beneficiary.

 

(h)           The following notice is provided pursuant to Section 427.120,RS.Mo.  As used herein, the terms “you”and “your” shall refer to **Trustor**, andthe terms “we and “us” shall refer to **Beneficiary**.  **UNLESS YOU PROVIDEEVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH US, WE MAY PURCHASEINSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR COLLATERAL.  THIS INSURANCE MAY, BUT NEED NOT, PROTECTYOUR INTERESTS.  THE COVERAGE THAT WEPURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM THAT IS MADEAGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTERPROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OURAGREEMENT.  IF WE**

 

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**PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL BERESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM,INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THEPLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OREXPIRATION OF THE INSURANCE.  THE COSTSOF THE INSURANCE MAYBE ADDED TO YOUR TOTAL OUTSTANDING BALANCE OROBLIGATION.  THE COSTS OF THE INSURANCE MAY BEMORE THAN THE COST OF THE INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN.**

 

5.7.2        All such policies of insurance shall be issued bycompanies approved by Beneficiary having a minimum A.M. Best’s rating ofA-:IX.  The limits, coverage, forms,deductibles, inception and expiration dates and cancellation provisions of allsuch policies shall be reasonably acceptable to Beneficiary.  Each property insurance policy maintained inconnection with any of the Property shall contain a Lender’s Loss PayableEndorsement (Form 438 BFU or equivalent) in favor of Beneficiary, andshall provide that all proceeds be payable to Beneficiary to the extent of itsinterest.  Each liability insurancepolicy maintained in connection with any of the Property shall name Beneficiaryand the Lenders as additional insureds. An approval by Beneficiary is not, and shall not be deemed to be, arepresentation of the solvency of any insurer or the sufficiency of any amountof insurance.  Each policy of insurancerequired hereunder shall provide that it may not be modified or cancelledwithout at least thirty (30) days’ prior written notice to Beneficiary (or ten (10) days’prior written notice in the event of a premium nonpayment), and shall permit awaiver of subrogation by Trustor in favor of Beneficiary and the Lenders.

 

5.7.3        Trustor shall supply Beneficiary with certificates ofeach policy required hereunder and any other policy of insurance maintained inconnection with any of the Property, together with an original (which may be aduplicate original) or underlyer of each such policy and all endorsementsthereto.  When any insurance policyrequired hereunder expires, Trustor shall furnish Beneficiary with proofacceptable to Beneficiary that the policy has been reinstated or a new policyissued, continuing in force the insurance covered by the policy whichexpired.  If Trustor fails to pay anysuch premium, Beneficiary shall have the right, but not the obligation, toobtain current coverage and advance funds to pay the premiums for it.  Trustor shall repay Beneficiary immediatelyon demand for any advance for such premiums, which shall be considered to be anadditional loan to Trustor bearing interest at the Default Rate, and secured bythis Deed of Trust and any other collateral held by Beneficiary in connectionwith the Secured Obligations.

 

5.8           Trustee’s Acceptance of Trust. Trustee accepts this trust when this Deed of Trust is recorded.

 

5.9           Releases, Extensions, Modifications and AdditionalSecurity.

 

5.9.1        From time to time, Beneficiary and/or any Lender mayperform any of the following acts without incurring any liability or givingnotice to any Person, and without affecting the personal liability of anyPerson for the payment of the Secured Obligations (except as provided below),and without affecting the security hereof for the full amount of the

 

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Secured Obligations on all Property remaining subject hereto, andwithout the necessity that any sum representing the value of any portion of theProperty affected by Beneficiary’s and/or such Lender’s action(s) be creditedon the Secured Obligations:

 

(a)           Release any Person liable for payment of any SecuredObligation;

 

(b)           Extend the time for payment, or otherwise alter theterms of payment, of any Secured Obligation;

 

(c)           Accept additional real or personal property of anykind as security for any Secured Obligation, whether evidenced by deeds oftrust, mortgages, security agreements or any other instruments of security; or

 

(d)           Alter, substitute or release any property securing theSecured Obligations.

 

5.9.2        From time to time when requested to do so byBeneficiary in writing, Trustee may perform any of the following acts withoutincurring any liability or giving notice to any Person:

 

(a)           Consent to the making of any plat or map of theProperty or any part of it;

 

(b)           Join in granting any easement or creating anyrestriction affecting the Property;

 

(c)           Join in any subordination or other agreement affectingthis Deed of Trust or the lien or security interest of it; or

 

(d)           Reconvey the Property or any part of it without anywarranty.

 

5.10         Reconveyance.  Upon (a) theexpiration or termination of the Commitment, (b) the full and finalpayment in cash of the Loans and all interest and fees with respect thereto, (c) thepayment of all other amounts then demanded by Beneficiary or any Lender orindemnitee and then owed under the Credit Agreement, and (d) the paymentof all other amounts then due under the Guaranty and the other Loan Documentsand the full payment and performance of all other Secured Obligations (otherthan indemnity obligations, if any, that are not then due), Beneficiary shallrequest Trustee in writing to reconvey the Property, and shall surrender thisDeed of Trust.  When Trustee receivesBeneficiary’s written request for reconveyance and all fees and other sumsowing to Trustee by Trustor under Section 5.11, Trustee shallreconvey the Property, or so much of it as is then held under this Deed ofTrust, without warranty, to the Person or Persons legally entitled to it.  Such Person or Persons shall pay any costs ofrecordation.  In the reconveyance, thegrantee may be described as “the person or persons legally entitled thereto,”and the recitals of any matters or facts shall be conclusive proof of theirtruthfulness.  Neither Beneficiary norTrustee shall have any duty to determine the rights of Persons claiming to berightful grantees of any reconveyance.

 

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5.11         Compensation, Exculpation, Indemnification.

 

5.11.1      Trustor agrees to pay reasonable fees as may becharged by Beneficiary and Trustee, subject to the maximum amounts legallypermitted, for any services that Beneficiary or Trustee may render inconnection with this Deed of Trust, including Beneficiary’s providing astatement of the Secured Obligations or Trustee’s rendering of services inconnection with a reconveyance.  Trustorshall also pay or reimburse all of Beneficiary’s and Trustee’s costs andexpenses which may be incurred in rendering any such services.  Trustor further agrees to pay or reimburseBeneficiary for all costs, expenses and other advances which may be incurred ormade by Beneficiary or Trustee in any efforts to enforce any terms of this Deedof Trust, including any rights or remedies afforded to Beneficiary or Trusteeor both of them under Section 6.3, whether any lawsuit is filed ornot, or in defending any action or proceeding arising under or relating to thisDeed of Trust, including reasonable attorneys’ fees and other legal costs,costs of any Foreclosure Sale (as defined in Section 6.3.8) and anycost of evidence of title.  IfBeneficiary chooses to dispose of the Property through more than oneForeclosure Sale, Trustor shall pay all costs, expenses or other advances thatmay be incurred or made by Trustee or Beneficiary in each of such ForeclosureSales.

 

5.11.2      Beneficiary shall not be directly or indirectly liableto Trustor or any other Person as a consequence of any of the following:

 

(a)           Beneficiary’s exercise of, or failure to exercise, anyrights, remedies or powers granted to Beneficiary in this Deed of Trust;

 

(b)           Beneficiary’s failure or refusal to perform ordischarge any obligation or liability of Trustor under any agreement related tothe Property or under this Deed of Trust; or

 

(c)           Any loss sustained by Trustor or any third partyresulting from Beneficiary’s failure to lease or operate the Property, or fromany other act or omission of Beneficiary in managing the Property, after anEvent of Default, unless the loss is caused by the willful misconduct and badfaith of Beneficiary.

 

Trustor hereby expressly waives and releases allliability of the types described above, and agrees that no such liability shallbe asserted against or imposed upon Beneficiary.

 

5.11.3      Trustor agrees to indemnify Trustee, Beneficiary andthe Lenders (collectively, the “Indemnitees”) against and hold them harmlessfrom all losses, damages, liabilities, claims, causes of action, judgments,court costs, reasonable attorneys’ fees and other reasonable legal expenses,cost of evidence of title, cost of evidence of value, and other costs andexpenses which any of them may suffer or incur (except to the extent that anyof the foregoing are the result of the gross negligence or willful misconductof any such Indemnitee):

 

(a)           In performing any act required or permitted by thisDeed of Trust or any of the other Loan Documents or by law;

 

(b)           Because of any failure of Trustor to perform any ofTrustor’s obligations; or

 

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(c)           Because of any alleged obligation of or undertaking byBeneficiary to perform or discharge any of the representations, warranties,conditions, covenants or other obligations in any document relating to theProperty other than the Loan Documents.

 

Each obligation or liability of Trustor to anyIndemnitee under this Section 5.11.3 shall survive the release andcancellation of any or all of the Secured Obligations and the full or partialrelease and/or reconveyance of this Deed of Trust.

 

5.11.4      Trustor shall pay all obligations to pay money arisingunder this Section 5.11 within five (5) business days demandby Beneficiary (or the applicable Indemnitee). Each such obligation shall bear interest from the date the obligationarises at the Default Rate set forth in the Credit Agreement, and any suchobligation to a Lender shall be added to, and considered to be part of, theprincipal of the Note in favor of such Lender (and, in the event that suchLender holds more than one Note, the allocation of such obligation among suchNotes shall be made by such Lender in its absolute discretion).

 

5.12         Defense and Notice of Claims and Actions. At Trustor’s sole expense, Trustor shall protect, preserve and defendthe Property and title to and right of possession of the Property, and thesecurity of this Deed of Trust and the rights and powers of Beneficiary andTrustee created under it, against all adverse claims.  Trustor shall give Beneficiary and Trusteeprompt notice in writing if any claim is asserted which does or could affectany of such matters, or if any action or proceeding is commenced which allegesor relates to any such claim.

 

5.13         Substitution of Trustee.  From time totime, Beneficiary may substitute a successor to any Trustee named in or actingunder this Deed of Trust in any manner now or later to be provided at law, orby a written instrument executed and acknowledged by Beneficiary and recordedin the office(s) of the recorder(s) of the County.  Any such instrument shall be conclusive proofof the proper substitution of the successor Trustee, who shall automaticallyupon recordation of the instrument succeed to all estate, title, rights, powersand duties of the predecessor Trustee, without conveyance from it.

 

5.14         Subrogation.  Subject toGaming Laws, Beneficiary shall be subrogated to the liens and securityinterests of all encumbrances, whether released of record or not, which aredischarged in whole or in part by Beneficiary in accordance with this Deed ofTrust or with the proceeds of any loan secured by this Deed of Trust.

 

5.15         Site Visits, Observation and Testing. Beneficiary and its agents and representatives shall have the right atany reasonable time to enter and visit the Property for the purpose ofperforming appraisals.  In addition, eachPerson indemnified by the Borrower under Section 10.04 of theCredit Agreement (collectively, “Indemnified Parties”) and their agents and representativesshall have the right at any reasonable time to enter and visit the Property forthe purposes of observing the Property, taking and removing soil or groundwatersamples, and conducting tests on any part of the Property; provided that, solong as no Event of Default remains uncured, the Indemnified Parties shall notbe entitled to conduct any tests that would significantly interfere with theoperation of the Property.  TheIndemnified Parties have no duty, however, to visit or observe the Property orto conduct tests, and no site visit, observation or

 

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testing by any Indemnified Party shall impose any liability on anyIndemnified Party.  In no event shall anysite visit, observation or testing by any Indemnified Party be a representationthat Hazardous Materials are or are not present in, on, or under the Property,or that there has been or shall be compliance with any Hazardous Materials Law,or any other applicable Law.  NeitherTrustor nor any other party is entitled to rely on any site visit, observationor testing by any Indemnified Party.  TheIndemnified Parties owe no duty of care to protect Trustor or any other partyagainst, or to inform Trustor or any other party of, any Hazardous Material orany other adverse condition affecting the Property.  Any Indemnified Party shall give Trustorreasonable notice before entering the Property. The Indemnified Party shall make reasonable efforts to avoid interferingwith Trustor’s use of the Property in exercising any rights provided in thisSection.

 

5.16         Notice of Change.  Trustor shallgive Beneficiary prior written notice of (a) any change in the location ofTrustor’s place of business or its chief executive office if it has more thanone place of business, (b) any change in the location of any of theProperty, including the Books and Records, and (c) any change to Trustor’sname or business structure.  Unlessotherwise approved by Beneficiary in writing, all Property that consists ofpersonal property (other than the Books and Records) will be located on theLand and all Books and Records for the portion of the Property owned by Trustorwill be located at such Trustor’s place of business or chief executive officeif such Trustor has more than one place of business.

 

5.17         Title Insurance.  At any timeand from time to time at the reasonable request of Beneficiary, Trustor, at itssole cost and expense, shall deliver to Beneficiary such additional titleinsurance indorsements and reinsurance issued by title insurance companies, inform and substance and reasonably satisfactory to Beneficiary, with respect tothis Deed of Trust, including, without limitation, CLTA 122 endorsementsinsuring that each advance is secured by this Deed of Trust (without any exceptionnot set forth in the policy of title insurance insuring this Deed of Trustother than (i) liens for taxes and assessments not yet due and payable and(ii) other encumbrances, approved by the Beneficiary, insured to besubordinate to this Deed of Trust), and CLTA 101.4 endorsements insuring thepriority of the Deed of Trust over any mechanic’s lien; provided that Trustorshall not be obligated under this Section 5.17 to increase thestated amount of the policy of title insurance insuring this Deed of Trust.

 

6.             Accelerating Transfers, Defaults and Remedies.

 

6.1           Accelerating Transfers.

 

6.1.1        “Accelerating Transfer” means any sale, contract tosell, conveyance, encumbrance, lease, alienation or further encumbrance of allor any material portion of the Property (or any interest in it) which is notexpressly permitted under the Credit Agreement, or any other transfer of all orany material portion of the Property (or any interest in it), whethervoluntary, involuntary, by operation of law or otherwise, unless Beneficiaryhas given its prior written consent to such “Accelerating Transfer,” whichconsent may be given or not given in the absolute discretion ofBeneficiary.  If Trustor is a corporationor limited liability company, “Accelerating Transfer” also means any transferof any share or shares in Trustor.  IfTrustor is a partnership or limited liability company, “Accelerating Transfer”also means withdrawal or removal of any general partner or manager, as the casemay be, dissolution of the

 

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partnership or limited liability company under Nevada law, or anytransfer of any partnership interest or any ownership interest in the limitedliability company.

 

6.1.2        Trustor acknowledges that Beneficiary and the Lendersare making one or more advances under the Credit Agreement in reliance on theexpertise, skill and experience of Trustor; thus, the Secured Obligationsinclude material elements similar in nature to a personal service contract.  In consideration of Beneficiary’s reliance,Trustor agrees that Trustor shall not make any Accelerating Transfer, unlessthe transfer is preceded by Beneficiary’s written consent to the particulartransaction and transferee.  Beneficiarymay withhold such consent in its absolute discretion.  If any Accelerating Transfer occurs,Beneficiary may, in its absolute discretion (provided that it has received anyconsents or approvals of any other Lenders required under the Credit Agreement),declare all of the Secured Obligations to be immediately due and payable, andBeneficiary and Trustee may invoke any rights and remedies provided by Section 6.3of this Deed of Trust.

 

6.2           Events of Default.  Trustor willbe in default under this Deed of Trust upon the occurrence of any one or moreof the following events (“Events of Default”):

 

(a)           Trustor fails to perform any obligation to pay moneywhich arises under this Deed of Trust within two (2) Business Days afterwritten demand therefor; or

 

(b)           Trustor fails to perform any other obligation arisingunder this Deed of Trust within ten (10) Business Days after the giving ofwritten notice by Beneficiary of such failure; or

 

(c)           Trustor shall give to Beneficiary any notice under theprovisions of Section 443.055 of the Revised Statutes of Missouriconcerning future advances; or

 

(d)           Any Event of Default (as defined in the CreditAgreement or in any other Loan Document) occurs; or any other default occursunder any of the Secured Obligations.

 

6.3           Remedies.  At any timeafter and during the continuance of an Event of Default (following theexpiration of any applicable cure period) and provided that Beneficiary hasreceived any consents or approvals of any other Lenders required under theCredit Agreement, Beneficiary and Trustee will be entitled to invoke any or allof the following rights and remedies (subject to any restrictions on thoserights and remedies imposed by applicable Gaming Laws), all of which will becumulative, and the exercise of any one or more of which shall not constitutean election of remedies:

 

6.3.1        Acceleration.  Beneficiarymay declare any or all of the Secured Obligations to be due and payableimmediately.

 

6.3.2        Receiver.  Beneficiarymay apply to any court of competent jurisdiction for, and obtain appointmentof, a receiver for the Property; and Beneficiary may request, in connectionwith any foreclosure proceeding hereunder, that the Missouri Gaming Commissionpetition a District Court of the State of Missouri for the appointment of asupervisor to conduct the normal gaming activities on the Property followingsuch foreclosure proceeding.

 

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6.3.3        Entry.  Beneficiary,in person, by agent or by court-appointed receiver, may enter, take possessionof, manage and operate all or any part of the Property, and may also do any andall other things in connection with those actions that Beneficiary may in itsabsolute discretion consider necessary and appropriate to protect the securityof this Deed of Trust.  Such other thingsmay include, without limitation:  takingand possessing all of Trustor’s or the then owner’s Books and Records; enteringinto, enforcing, modifying, or cancelling Leases on such terms and conditionsas Beneficiary may consider proper; obtaining and evicting tenants; collectingand receiving any payment of money owing to Trustor; completing construction;and/or contracting for and making repairs and alterations.  If Beneficiary so requests, Trustor shallassemble all of the Property that has been removed from the Land and make allof it available to Beneficiary at the site of the Land.  Trustor hereby irrevocably constitutes andappoints Beneficiary as Trustor’s attorney-in-fact (which appointment iscoupled with an interest) to perform such acts and execute such documents asBeneficiary in its absolute discretion may consider to be appropriate inconnection with taking these measures, including endorsement of Trustor’s nameon any instruments.  Regardless of anyprovision of this Deed of Trust or the Credit Agreement, Beneficiary shall notbe considered to have accepted any property other than cash or immediatelyavailable funds in satisfaction of any obligation of Trustor to Beneficiaryunless Beneficiary has given express written notice of Beneficiary’s electionof that remedy.

 

6.3.4        Cure; Protection of Security. Either Beneficiary or Trustee may cure any breach or default of Trustorand, if it chooses to do so in connection with any such cure, Beneficiary orTrustee may (subject to applicable Gaming Laws) also enter the Property and/ordo any and all other things which either may in its absolute discretionconsider necessary and appropriate to protect the security of this Deed ofTrust.  Such other things may include,without limitation:  appearing in and/ordefending any action or proceeding which purports to affect the security of, orthe rights or powers of Beneficiary or Trustee under, this Deed of Trust;paying, purchasing, contesting or compromising any encumbrance, charge, lien,security interest or claim of lien or security interest which (in Beneficiary’sor Trustee’s sole judgment) is or may be senior in priority to this Deed ofTrust, such judgment of Beneficiary or Trustee to be conclusive as among theparties to this Deed of Trust; obtaining insurance and/or paying any premiumsor charges for insurance required to be carried under this Deed of Trust andthe other Loan Documents; otherwise caring for and protecting any and all ofthe Property; and/or employing counsel, accountants, contractors and otherappropriate Persons to assist Beneficiary or Trustee.  Beneficiary and Trustee may take any of theactions permitted under this Section 6.3.4 either with or withoutgiving notice to any Person.

 

6.3.5        Uniform Commercial Code Remedies. Subject to applicable Gaming Laws, Beneficiary may exercise any or allof the remedies granted to a secured party under the Missouri UniformCommercial Code, as amended or recodified from time to time.

 

6.3.6        Judicial Action.  Beneficiarymay bring an action in any court of competent jurisdiction to foreclose thisDeed of Trust or to obtain specific enforcement of any of the covenants orother terms of this Deed of Trust.

 

6.3.7        Power of Sale.  Under thepower of sale hereby granted, Beneficiary shall have the discretionary right tocause some or all of the Property, including any Property which constitutespersonal property, to be sold or otherwise disposed of in any

 

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combination and in any manner permitted by applicable law.  At Trustee’s option, Trustee may set theplace of any such sale at any reasonable place, as permitted by Section 443.327and any other applicable law of the Revised Statutes of Missouri, first givingnotice of such sale in the manner prescribed by statute.  Trustee may in Trustee’s discretion set thetime of any such sale at any commercially reasonable time, as permitted by Section 443.327of the Revised Statutes of Missouri.

 

(a)           Sales of Personal Property.

 

(i)            For purposes of this power of sale,Beneficiary may elect to treat as personal property any Property which isintangible or which can be severed from the Land or Improvements withoutcausing structural damage.  If it choosesto do so, Beneficiary may dispose of any personal property separately from thesale of real property, in any manner permitted by Article 9 of theMissouri Uniform Commercial Code, as amended or recodified from time to time,including any public or private sale, or in any manner permitted by any otherapplicable law.  Any proceeds of any suchdisposition shall not cure any Event of Default or reinstate any SecuredObligation.

 

(ii)           In connection with any sale or otherdisposition of such Property, Trustor agrees that the following proceduresconstitute a commercially reasonable sale: Beneficiary shall mail written notice of the sale to Trustor not laterthan ten (10) days prior to such sale. Once per week during the three weeks immediately preceding such sale,Beneficiary will publish notice of the sale in a local daily newspaper ofgeneral circulation.  Upon receipt of anywritten request, Beneficiary will make the Property available to any bona fideprospective purchaser for inspection during reasonable business hours.  Notwithstanding any provision to thecontrary, Beneficiary shall be under no obligation to consummate a sale if, inits judgment, none of the offers received by it equals the fair value of theProperty offered for sale.  The foregoingprocedures do not constitute the only procedures that may be commerciallyreasonable.

 

(b)           Trustee’s Sales of Real Property or Mixed Collateral.

 

(i)            Beneficiary may choose to dispose of someor all of the Property which consists solely of real property in any mannerthen permitted by applicable law.  In itsdiscretion, Beneficiary may also or alternatively choose to dispose of some orall of the Property, in any combination consisting of both real and personalproperty, together in one sale to be held in accordance with the law andprocedures applicable to real property, as permitted by Article 9 of theMissouri Uniform Commercial Code, as amended or recodified from time totime.  Trustor agrees that such a sale ofpersonal property together with real property constitutes a commerciallyreasonable sale of the personal property. For purposes of this power of sale, either a sale of real propertyalone, or a sale of both real and personal property together in accordance withArticle 9 of the Missouri Uniform Commercial Code, as amended orrecodified from time to time, will sometimes be referred to as a “Trustee’sSale.”

 

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(ii)           Before any Trustee’s Sale, Beneficiary orTrustee shall give such notice of default and election to sell as may then berequired by law.  When all time periodsthen legally mandated have expired, and after such notice of sale as may thenbe legally required has been given, Trustee shall sell the property being soldat a public auction to be held at the time and place specified in the notice ofsale, provided, however, that no sale or other disposition of slot machines orother gaming devices shall occur without first receiving the approval of theapplicable Gaming Board.  Neither Trusteenor Beneficiary shall have any obligation to make demand on Trustor before anyTrustee’s Sale.  From time to time inaccordance with then applicable law, Trustee may, and in any event atBeneficiary’s request shall, postpone any Trustee’s Sale by public announcementat the time and place noticed for that sale.

 

(iii)          At any Trustee’s Sale, Trustee shall sellthe property being sold at a public auction to the highest bidder at publicauction for cash in lawful money of the United States.  Trustee shall execute and deliver to thepurchaser(s) a deed or deeds conveying the property being sold without anycovenant or warranty whatsoever, express or implied.  The recitals in any such deed of any mattersor facts, including any facts bearing upon the regularity or validity of anyTrustee’s Sale, shall be conclusive proof of their truthfulness.  Any such deed shall be conclusive against allPersons as to the facts recited in it.

 

6.3.8        Single or Multiple Foreclosure Sales. If the Property consists of more than one lot, parcel or item ofproperty, Beneficiary may:

 

(a)           Designate the order in which the lots, parcels and/oritems shall be sold or disposed of or offered for sale or disposition; and

 

(b)           Elect to dispose of the lots, parcels and/or itemsthrough a single consolidated sale or disposition to be held or made under thepower of sale granted in Sections 1.1 and 6.3.7, or in connectionwith judicial proceedings, or by virtue of a judgment and decree of foreclosureand sale; or through two or more such sales or dispositions; or in any othermanner Beneficiary may deem to be in its best interests (any such sale ordisposition being referred to herein as a “Foreclosure Sale”).

 

If Beneficiary chooses to have more than oneForeclosure Sale, Beneficiary at its option may cause the Foreclosure Sales tobe held simultaneously or successively, on the same day, or on such differentdays and at such different times and in such order as Beneficiary may deem tobe in its best interests.  No ForeclosureSale shall terminate or affect the liens or security interests of this Deed ofTrust on any part of the Property which has not been sold until all of theSecured Obligations have been paid in full and the Commitment has been fullyand finally terminated.

 

6.3.9        Other Permitted Remedies. Beneficiary and the Lenders may refuse to make any advance to anyBorrower or issue any Letter of Credit for the account of any Borrower.  Beneficiary and the Lenders may exercise anyand all other rights and remedies available under the Loan Documents andapplicable law, including, without limitation, the right to file applicationsto change, and to exercise all other rights and remedies available under

 

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applicable law with respect to, all water permits and rights relatingto the Property; provided however that, notwithstanding the foregoing or anyother provision contained in this Deed of Trust, the remedies provided by thisDeed of Trust shall not include the right to take any action that violatesapplicable Gaming Laws.

 

6.4           Credit Bids.  At anyForeclosure Sale, any Person, including Trustor, Trustee or Beneficiary, maybid for and acquire the Property or any part thereof to the extent permitted bythen applicable law.  Instead of payingcash for such property, Beneficiary may settle for the purchase price by creditingagainst the sales price of the Property or any part thereof any or all of theoutstanding Secured Obligations (including without limitation the portion ofthe Secured Obligations attributable to the expenses of sale, costs of anyaction and any other sums for which Trustor is obligated to pay or reimburseBeneficiary, the Lenders or Trustee under Section 5.11) in suchorder and proportions as Beneficiary in its absolute discretion may choose.

 

6.5           Application of Foreclosure Sale Proceeds. Beneficiary and Trustee shall apply the proceeds of any Foreclosure Salein the manner required by applicable law; provided that all proceeds that areto be applied against the Secured Obligations shall, except as otherwiserequired by applicable law, be applied against the Secured Obligations in anyorder and proportions as Beneficiary in its absolute discretion may choose(subject to any applicable provisions for priority of application of proceedsset forth in either Credit Agreement).

 

6.6           Application of Rents and Other Sums. Beneficiary shall apply any and all Rents collected by it, and any andall sums other than proceeds of a Foreclosure Sale which Beneficiary mayreceive or collect under Section 6.3, in the following manner:

 

(a)           First, to pay the portion of the Secured Obligationsattributable to the costs and expenses of operation and collection that may beincurred by Trustee, Beneficiary or any receiver;

 

(b)           Second, to pay all other Secured Obligations in anyorder and proportions as Beneficiary in its absolute discretion may choose(subject to any applicable provisions for priority of application of paymentsset forth in the Credit Agreement); and

 

(c)           Third, to remit the remainder, if any, to the Personor Persons entitled to it.  Beneficiaryshall have no liability for any funds which it does not actually receive.

 

7.             Leasehold Mortgage Provisions. The provisions of this Article 7 shall apply in the eventthat, and so long as, any portion of the Property consists of Trustor’sinterests as tenant under any lease or leases (collectively, including theOperating Lease, the “Ground Leases”). Unless otherwise expressly provided, the lien of this Deed of Trustshall encumber all of Trustor’s rights and interests under and in connectionwith any Ground Lease, including without limitation renewal and extensionrights, options to expand, and purchase options (all of which rights shall becollectively referred to herein as a “Ground Leasehold”).  Trustor hereby agrees, with respect to eachGround Lease, as follows:

 

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7.1           Trustor shall timely perform its obligations inconnection with each Ground Lease. Without limiting the generality of Section 6.3.4, above,Trustor specifically acknowledges Beneficiary’s right, while any default byTrustor under any Ground Lease remains uncured, to perform the defaultedobligations and take all other actions which Beneficiary deems necessary toprotect its interests with respect thereto, and Trustor hereby irrevocablyappoints Beneficiary its true and lawful attorney-in-fact (which appointment iscoupled with an interest) in its name or otherwise to execute all documents,and perform all other acts, which Beneficiary reasonably deems necessary topreserve its or Trustor’s rights with respect to any Ground Lease.

 

7.2           Trustor shall not, without Beneficiary’s prior writtenconsent, modify, or cause or permit the termination of, any Ground Lease, orwaive or in any way release the landlord under any Ground Lease of or from anyobligation or condition.

 

7.3           Trustor shall notify Beneficiary promptly in writingof (i) the occurrence of any default by the landlord under any GroundLease and (ii) the receipt by Trustor of any notice claiming theoccurrence of any default by Trustor under any Ground Lease or the occurrenceof any event which, with the passage of time or the giving of notice or both,would constitute a default by Trustor under any Ground Lease (and Trustor shallalso promptly deliver a copy of any such notice to Beneficiary).

 

7.4           Unless Beneficiary otherwise consents in writing, solong as any Secured Obligation remains outstanding, neither the fee title to,nor any other estate or interest in, the real property subject to any GroundLease shall merge with any Ground Leasehold, notwithstanding the union of suchestates in the landlord or the tenant or in a third party.  Any acquisition of the landlord’s interest inany Ground Lease by Trustor or any affiliate of Trustor shall be accomplishedin such a manner as to avoid a merger of the interests of landlord and tenantunless Beneficiary consents to such merger in writing.

 

7.5           If Trustor acquires fee title to any portion of thereal property subject to any Ground Lease, this Deed of Trust shallautomatically be a lien on such fee title.

 

7.6           Trustor shall not subordinate any Ground Lease orGround Leasehold to any deed of trust or other encumbrance of, or lien on, anyinterest in the real property subject to such Ground Leasehold without theprior written consent of Beneficiary.  Any such subordination without such consentshall, at Beneficiary’s option, be void.

 

7.7           All subleases entered into by Trustor with respect toall or any portion of the Property (and all existing subleases modified byTrustor) shall provide that such subleases are subordinate to the lien of thisDeed of Trust and any modifications of this Deed of Trust and the obligationssecured hereby and that, if Beneficiary forecloses under this Deed of Trust orenters into a new lease with any landlord under any Ground Lease pursuant tothe provisions for a new lease, if any, contained in the applicable GroundLease or in any other document or agreement, the subtenant shall attorn toBeneficiary or its assignee and the sublease shall remain in full force andeffect in accordance with its terms notwithstanding the termination of theapplicable Ground Lease.

 

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7.8           Trustor shall exercise any option or right to renew orextend the term of any Ground Lease at least six months prior to the date oftermination of any such option or right, shall give immediate written noticethereof to Beneficiary, and shall execute, deliver and record any documentsrequested by Beneficiary to evidence the lien of this Deed of Trust on such extendedor renewed lease term.  If Trustor failsto exercise any such option or right as required herein, Beneficiary mayexercise the option or right as Trustor’s agent and attorney-in-fact pursuantto this Deed of Trust, or in Beneficiary’s own name or in the name of and onbehalf of a nominee of Beneficiary, as Beneficiary chooses in its absolutediscretion.

 

7.9           As security for the Secured Obligations, Trustorhereby assigns to Beneficiary a security interest in all prepaid rents andsecurity deposits and all other security which the landlords under the GroundLeases hold for the performance of Trustor’s obligations thereunder.

 

7.10         Promptly upon demand by Beneficiary, Trustor shall usereasonable efforts to obtain from the landlord under any Ground Lease andfurnish to Beneficiary an estoppel certificate of such landlord stating thedate through which rent has been paid, whether or not there are any defaults,and the specific nature of any claimed defaults.

 

7.11         Trustor shall notify Beneficiary promptly in writingof any request by either party to any Ground Lease for arbitration, appraisalor other proceedings relating to any Ground Lease and of the institution of anysuch proceeding, and shall promptly deliver to Beneficiary a copy of alldeterminations in any such proceeding. Beneficiary shall have the right, following written notice to Trustor,to participate in any such proceeding in association with Trustor or on its ownbehalf as an interested party.  Trustorshall notify Beneficiary promptly in writing of the institution of any legalproceeding involving obligations under any Ground Lease, and Beneficiary mayintervene in any such legal proceeding and be made a party.  Trustor shall promptly provide Beneficiarywith a copy of any decision rendered in connection with any such proceeding.

 

7.12         To the extent permitted by law, the price payable byTrustor or any other party in the exercise of the right of redemption, if any,from any sale under, or decree of foreclosure of, this Deed of Trust shall includeall rents and other amounts paid and other sums advanced by Beneficiary onbehalf of Trustor as the tenant under the Ground Leases.

 

7.13         In addition to all other Events of Default describedin this Deed of Trust, the occurrence of any of the following shall be an Eventof Default hereunder:

 

(a)           A breach or default by Trustor under any Ground Lease,subject to any applicable cure period; or

 

(b)           The occurrence of any event or circumstance whichgives the landlord under any Ground Lease a right to terminate such GroundLease.

 

7.14         As used in this Deed of Trust, the “Bankruptcy Code”shall mean 11 U.S.C. § 101 etseq., as modified and/orrecodified from time to time. Notwithstanding anything to the contrary contained herein with respectto any Ground Lease:

 

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(a)           The lien of this Deed of Trust attaches to all ofTrustor’s rights under Subsection 365(h) of the Bankruptcy Code,including without limitation any and all elections to be made thereunder, any andall rights under any Ground Lease which Trustor is entitled to retain pursuantto 11 U.S.C. § 365(h)(1)(A)(ii) in the event of a rejectionunder the Bankruptcy Code of such Ground Lease by the landlord thereunder (orany trustee thereof), and any and all rights of offset under or as described in11 U.S.C. § 365(h)(1)(B).

 

(b)           Trustor acknowledges and agrees that, as thebeneficiary under this Deed of Trust and by operation of 11 U.S.C. § 365(h)(1)(D),Beneficiary has, and until this Deed of Trust has been fully reconveyedcontinuously shall have, whether before or after any default under any of theSecured Obligations or the taking of any action to enforce any of Beneficiary’srights and remedies under this Deed of Trust or any foreclosure sale hereunder,the complete, unfettered and exclusive right, in its sole and absolutediscretion, to elect (the “365(h) Election”) whether (i) any GroundLease that has been rejected under the Bankruptcy Code by the landlordthereunder (or any trustee therefor) shall be treated as terminated under11 U.S.C. § 365(h)(1)(A)(i), or (ii) the rights under suchGround Lease that are in or appurtenant to the real property, as described in11 U.S.C. § 365(h)(1)(A)(ii), should be retained pursuant to thatsubsection.  To the extent that,notwithstanding the preceding sentence and 11 U.S.C. § 365(h)(1)(D),Trustor now or at any time in the future has any right to make, or toparticipate in or otherwise in any manner affect the making of, the 365(h) Electionwith respect to any Ground Lease, Trustor hereby absolutely assigns and conveysto Beneficiary any and all such rights, and all of Trustor’s right, title, andinterest therein, which may be used and exercised by Beneficiary completely,exclusively, and without any restriction whatsoever, in Beneficiary’s sole andabsolute discretion, whether before or after any default upon any of theSecured Obligations, the taking of any action to enforce any of Beneficiary’srights and remedies under this Deed of Trust, or any foreclosure salehereunder.  Trustor herebyunconditionally and irrevocably appoints Beneficiary as its attorney-in-fact toexercise Trustor’s right, if any, to make, or participate in or otherwise inany matter affect the making of, the 365(h) Election with respect to anyGround Lease.  Trustor shall not in anymanner impede or interfere with any action taken by Beneficiary and, at therequest of Beneficiary, Trustor shall take or join in the taking of any actionto make, or participate in or otherwise in any manner affect the making of, the365(h) Election with respect to any Ground Lease, in such manner asBeneficiary determines in its sole and absolute discretion.  Unless and until instructed to do so byBeneficiary (as determined by Beneficiary in its sole and absolute discretion),Trustor shall not take any action to make, or participate in or otherwise inany manner affect the making of, the 365(h) Election with respect to anyGround Lease, including in particular, but without limitation, any election totreat any Ground Lease as terminated. Beneficiary shall have no obligation whatsoever to Trustor or any otherperson or entity in connection with the making of the 365(h) Election withrespect to any Ground Lease or any instruction by Beneficiary to Trustor given,withheld or delayed in respect thereof, nor shall Beneficiary have anyliability to Trustor or any other person or entity arising from any of thesame.

 

(c)           As security for the Secured Obligations, Trustorhereby irrevocably assigns to Beneficiary all of Trustor’s rights to damagesarising from any

 

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rejectionby any landlord (or any trustee thereof) of any Ground Lease under theBankruptcy Code.  Beneficiary and Trustorshall proceed jointly or in the name of Trustor in respect of any claim orproceeding relating to the rejection of any Ground Lease, including withoutlimitation the right to file and prosecute any proofs of claim, complaints,motions and other documents in any case in respect of such landlord under theBankruptcy Code.  This assignment shallcontinue in effect until all of the Secured Obligations have been satisfied infull.  Any amounts received byBeneficiary or Trustor as damages arising from the rejection of any GroundLease as aforesaid shall be applied first to all costs reasonably incurred byBeneficiary (including attorneys’ fees) in connection with this subsection (c) andthen in accordance with other applicable provisions of this Deed of Trust.

 

(d)           If, pursuant to the Bankruptcy Code, Trustor seeks tooffset against the rent reserved in any Ground Lease the amount of any damagescaused by the nonperformance of the landlord’s obligations after the rejectionby the landlord (or any trustee thereof) of such Ground Lease, Trustor shall,prior to effecting such offset, notify Beneficiary in writing of its intent todo so, setting forth the amounts proposed to be offset and, in the event thatBeneficiary objects, Trustor shall not effect any offset of the amounts towhich Beneficiary objects.  IfBeneficiary fails to object within 10 days following receipt of suchnotice, Trustor may offset the amounts set forth in Trustor’s notice.

 

(e)           If any legal proceeding is commenced with respect toany Ground Lease in connection with any case under the Bankruptcy Code,Beneficiary and Trustor shall cooperatively conduct any such proceeding withcounsel reasonably agreed upon between Trustor and Beneficiary.  Trustor shall, upon demand, pay toBeneficiary all costs (including attorneys’ fees) reasonably incurred byBeneficiary in connection with any such proceeding.

 

(f)            Trustor shall immediately notify Beneficiary orallyupon learning of any filing by or against any landlord of a petition under theBankruptcy Code.  Trustor shallthereafter promptly give written notice of such filing to Beneficiary, settingforth any information available to Trustor with respect to the date of suchfiling, the court in which such petition was filed, and the relief soughttherein.  Trustor shall promptly deliverto Beneficiary all notices, pleadings and other documents received by Trustorin connection with any such proceeding.

 

7.15         No maintenance, repair or other obligation of Trustorhereunder which relates to the “Property” shall apply to any Ground Leaseholdwith respect to which the applicable Ground Lease imposes such obligation onthe landlord so long as (a) Trustor does not own the landlord’s interest; (b) suchlandlord is performing such obligation in accordance with the terms of suchGround Lease; and (c) the Ground Lease has not been rejected by thelandlord (or any trustee thereof) under the Bankruptcy Code.

 

7.16         The generality of the provisions of this Deed of Trustshall not be limited by any provision of this Article 7 that setsforth particular obligations of Trustor as the tenant under the Ground Leases.

 

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7.17         Trustor hereby represents and warrants to Beneficiaryas follows:

 

(a)           The Operating Lease is in full force and effect;

 

(b)           Trustor owns the entire tenant’s interest under theOperating Lease and has the right under the Operating Lease to execute thisDeed of Trust; and

 

(c)           No default under the Operating Lease remains uncured,nor has any event occurred which, with the passage of time or service of noticeor both, would constitute such a default.

 

8.             Miscellaneous Provisions.

 

8.1           Additional Provisions.  The LoanDocuments fully state all of the terms and conditions of the parties’ agreementregarding the matters mentioned in or incidental to this Deed of Trust.  The Loan Documents also grant further rightsto Beneficiary and contain further agreements and affirmative and negativecovenants by Trustor which apply to this Deed of Trust and to the Property.

 

8.2           No Waiver or Cure.

 

8.2.1        Each waiver by Beneficiary or Trustee must be inwriting, and no waiver shall be construed as a continuing waiver.  No waiver shall be implied from any delay orfailure by Beneficiary or Trustee to take action on account of any default ofTrustor.  Consent by Beneficiary orTrustee to any act or omission by Trustor shall not be construed as a consentto any other or subsequent act or omission or to waive the requirement forBeneficiary’s or Trustee’s consent to be obtained in any future or otherinstance.

 

8.2.2        If any of the events described below occurs, thatevent alone shall not:  cure or waive anybreach, Event of Default or notice of default under this Deed of Trust orinvalidate any act performed pursuant to any such default or notice; or nullifythe effect of any notice of default or sale (unless all Secured Obligationsthen due have been paid and performed and all other defaults under the LoanDocuments have been cured); or impair the security of this Deed of Trust; orprejudice Beneficiary, Trustee or any receiver in the exercise of any right orremedy afforded any of them under this Deed of Trust; or be construed as anaffirmation by Beneficiary of any tenancy, lease or option, or a subordinationof the lien or security interest of this Deed of Trust.

 

(a)           Beneficiary, its agent or a receiver takes possessionof all or any part of the Property in the manner provided in Section 6.3.3.

 

(b)           Beneficiary collects and applies Rents as permittedunder Sections 2.3 and 6.6 or exercises Trustor’s right, titleand interest under the Leases, either with or without taking possession of allor any part of the Property.

 

(c)           Beneficiary receives and applies to any SecuredObligation proceeds of any Property, including any proceeds of insurancepolicies, condemnation awards, or other claims, property or rights assigned toBeneficiary under Section 5.5.

 

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(d)           Beneficiary makes a site visit, observes the Propertyand/or conducts tests as permitted under Section 5.15.

 

(e)           Beneficiary receives any sums under this Deed of Trustor any proceeds of any collateral held for any of the Secured Obligations, andapplies them to one or more Secured Obligations.

 

(f)            Beneficiary, Trustee or any receiver invokes any rightor remedy provided under this Deed of Trust.

 

8.3           Powers of Beneficiary and Trustee.

 

8.3.1        Trustee shall have no obligation to perform any actwhich it is empowered to perform under this Deed of Trust unless it isrequested to do so in writing and is reasonably indemnified against loss, cost,liability and expense.

 

8.3.2        If either Beneficiary or any Lender or Trusteeperforms any act which it is empowered or authorized to perform under this Deedof Trust, including any act permitted by Section 5.9 or Section 6.3.4,that act alone shall not release or change the personal liability of any Personfor the payment and performance of the Secured Obligations then outstanding, orthe lien or security interest of this Deed of Trust on all or the remainder ofthe Property for full payment and performance of all outstanding SecuredObligations.  The liability of theoriginal Trustor shall not be released or changed if Beneficiary or any Lendergrants any successor in interest to any Borrower or Trustor any extension oftime for payment, or modification of the terms of payment, of any SecuredObligation.  Neither Beneficiary nor anyLender shall be required to comply with any demand by any original Trustor orBorrower that Beneficiary or such Lender refuse to grant such an extension ormodification to, or commence proceedings against, any such successor ininterest

 

8.3.3        Beneficiary may take any of the actions permittedunder Sections 6.3.2 and/or 6.3.3 regardless of the adequacy ofthe security for the Secured Obligations, or whether any or all of the SecuredObligations have been declared to be immediately due and payable, or whethernotice of default and election to sell has been given under this Deed of Trust.

 

8.3.4        From time to time, Beneficiary or Trustee may apply toany court of competent jurisdiction for aid and direction in executing thetrust and enforcing the rights and remedies created under this Deed ofTrust.  Beneficiary or Trustee may fromtime to time obtain orders or decrees directing, confirming or approving actsin executing this trust and enforcing these rights and remedies.

 

8.4           Merger.  No mergershall occur as a result of Beneficiary’s acquiring any other estate in or anyother lien on or security interest in the Property unless Beneficiary consentsto a merger in writing.

 

8.5           Applicable Law.  This Deed ofTrust shall be governed by and construed in accordance with the laws of theState of Missouri.

 

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8.6           Successors in Interest.  The terms,covenants and conditions of this Deed of Trust shall be binding upon and inureto the benefit of the heirs, successors and assigns of the parties.  However, this Section 8.6 doesnot waive the provisions of Section 6.1.

 

8.7           Interpretation.

 

8.7.1        Whenever the context requires, all words used in thesingular will be construed to have been used in the plural, and vice versa, andeach gender will include any other gender. The captions of the sections of this Deed of Trust are for convenienceonly and do not define or limit any terms or provisions.  The word “include(s)” means “include(s),without limitation,” and the word “including” means “including, but not limitedto.”

 

8.7.2        The word “obligations” is used in its broadest andmost comprehensive sense, and includes all primary, secondary, direct,indirect, fixed and contingent obligations. It further includes all principal, interest, prepayment charges, latecharges, loan fees and any other fees and charges accruing or assessed at anytime, as well as all obligations to perform acts or satisfy conditions.

 

8.7.3        No listing of specific instances, items or matters inany way limits the scope or generality of any language of this Deed ofTrust.  All Exhibits and/or Schedulesattached to this Deed of Trust are hereby incorporated in this Deed of Trust.

 

8.8           In-House Counsel Fees.  WheneverTrustor is obligated to pay or reimburse Beneficiary or any Lender or Trusteefor any attorneys’ fees, those fees shall include the allocated costs forservices of in-house counsel.

 

8.9           Waiver of Marshalling.  To the extentpermitted by applicable law, Trustor waives all rights, legal and equitable, itmay now or hereafter have to require marshalling of assets or to requireforeclosure sales of assets in a particular order.  Each successor and assign of Trustor,including any holder of a lien or security interest subordinate to this Deed ofTrust, by acceptance of its interest or lien or security interest, agrees thatit shall be bound by the above waiver, as if it had given the waiver itself.

 

8.10         Severability.  Any provisionin this Deed of Trust that is held to be inoperative, unenforceable or invalidas to any party or in any jurisdiction shall, as to that party or jurisdiction,be inoperative, unenforceable or invalid without affecting the remaining provisionsor the operation, enforceability or validity of that provision as to any otherparty or in any other jurisdiction, and to this end the provisions of this Deedof Trust are declared to be severable.

 

8.11         Notices.  Trustorhereby requests that a copy of notice of default and notice of sale be mailedto it at the address set forth below. That address is also the mailing address of Trustor as debtor under theMissouri Uniform Commercial Code, as amended or recodified from time totime.  Beneficiary’s address given belowis the address for Beneficiary as secured party under the Missouri UniformCommercial Code, as amended or recodified from time to time.

 

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| Notices to Trustor:     |   | c/o Herbst  Gaming, Inc.                                                        |
|-------------------------|--------|--------------------------------------------------------------------------------------|
|                    |   | 5195 Las Vegas Blvd.                                                                 |
|                    |   | Las Vegas, NV 89119                                                                  |
|                    |   | Attn: M. Higgins                                                                     |
|                    |   |                                                                                 |
| Notices to Beneficiary: |   | Bank of America, N.A.                                                                |
|                    |   | Mail Code: TX1-492-14-11                                                             |
|                    |   | Bank of America Plaza                                                                |
|                    |   | 901 Main Street, 14th  Floor                                                         |
|                    |   | Dallas, TX 75202-3714                                                                |
|                    |   | Attn:       Chris M. Levine, Assistant Vice  President |
|                    |   | Agency Management Officer II                                                         |
|                    |   | GCIB Agency Management Central I                                                     |
|                    |   |                                                                                 |
| Notices to Trustee:     |   | Todd W.  Griffee, Esq.                                                          |
|                    |   | 106 S. Seventh Street,  Suite 301                                               |
|                    |   | St. Joseph, MO 64501                                                                 |

 

8.12         Lease of Property.  Trusteehereby lets the Property to Trustor until a sale is held under this Deed ofTrust, or until an Event of Default shall occur, upon the following terms andconditions, to wit:  Trustor and allpersons claiming or possessing any of the Property by, through or under Trustorshall pay rent therefor during said term at the rate of one cent per month,payable monthly upon demand, and shall surrender immediate peaceable possessionof the Property (and any and every part thereof) sold under the provisions ofthis Deed of Trust to the purchaser thereof under such sale, without notice ordemand therefor, and shall and will at once, without notice, surrender uppossession of the Property and every part thereof in the event Beneficiaryshall take charge and enter the Property as provided in this Deed of Trust.

 

8.13         This notice is provided pursuant to section 432.045,R.S.Mo.  As used herein, “you” means **Trustor**, “us” means **Beneficiary and theLenders**, “borrower” means **Trustor**, “creditor”means **Beneficiary and the Lenders** and “thiswriting” means this **Agreement** andthe **other Loan Documents**.  **ORAL AGREEMENTS ORCOMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENTOF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOTENFORCEABLE.  TO PROTECT YOU (BORROWER)AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WEREACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THECOMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATERAGREE IN WRITING TO MODIFY IT.**

 

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IN WITNESS WHEREOF, this Deed of Trust has beenexecuted as of the date first written above.

 

 
|   | “Trustor”:   |
|--------|------------------------|
|   |                   |   |
|   | HGI – MARK TWAIN, |
|   | a Nevada corporation   |
|   |                   |   |
|   |                   |   |
|   | By:                    | /s/ Edward Herbst |   |
|   | Name:                  |   |   |
|   | Title:                 |   |   |
|        |                        |  |  |  |

 

34

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ACKNOWLEDGEMENT

 
| **STATE  OF Nevada** | **)**     |   |
|----------------------|-----------|--------|
| ** **           | **) ss.** |   |
| **COUNTY  OF Clark** | **)**     |   |

 

On this 28 day of January in  the year  2005  before me, Jenifer Cannon, a Notary Public in and for said State, personallyappeared Edward Herbst, of HGI – MARK TWAIN, known to me to be the person(s)who executed the within Deed of Trust with Assignment of Rents, SecurityAgreement and Fixture****Filing onbehalf of said corporation and acknowledged to me that he/she/they executed thesame for the purposes therein stated.

 

IN TESTIMONY WHEREOF, I have hereunder set my hand andaffixed my official seal in the County and State aforesaid, the day and yearfirst above written.

 

 
| [SEAL]          |    | /s/ Jenifer E. Cannon |   |
|-----------------|---------|-----------------------|--------|
|            |    | Notary Public         |
|            |    |                  |
|            |    |                  |
| My term expires | 1/17/07 | .                     |   |   |
|                 |         |                       |        |  |  |

 

35

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EXHIBIT “A”

 

(Legal Description ofLand)

 

**DESCRIPTIONOF THE FEE ESTATE**

 

**Tract1:**

 

All of Lots One (1), Two (2), Three (3), Four (4),Five (5), Six (6), Seven (7), Eight (8), Nine (9) and Ten (10) inBlock Four (4) together with the vacated alley adjoining, which, uponvacation, attached to said property by operation of law pursuant to Ordinance No. 397dated December 20, 1999; AND All of Lot 6 in Block 3 of Waltman and Louthan’sAddition to the Town, now City of La Grange, Lewis County, Missouri.

 

**Tract2:**

 

All that part of Section Thirty-one (31),Township Sixty-one (61) North, Range Five (5) West, unplatted and lyingone hundred (100) feet South of the North line of Knox Street extended East,and North of the North line of Lot Fourteen (14) in Block Twenty-two (22) inMarlow’s Addition to the Town, now City of La Grange, Lewis County, Missouri,extended East, and bounded on the West by Missouri Route B, also referred to asMain Street, and bounded on the East by the Mississippi River, EXCEPT for allof Lot Fifteen (15) and fractional Lot Sixteen (16) in Block Twenty-two (22) inMarlowe Addition to the Town, now City of La Grange, Lewis County, Missouri,all subject to the right-of-way of the CB&Q Railroad, its successors andassigns, all in Lewis County, Missouri.

 

**Tract3:**

 

All of Fractional Lot One (1), Lots Two (2), Three(3), Four (4), Five (5), Six (6), Seven (7), Eight (8), Nine (9), Ten (10),Eleven (11), Twelve (12), Thirteen (13) and all of Lot Fourteen (14) in BlockThree (3) in Marlow’s Addition together with the vacated alley adjoiningLots 3 through 14 in Block 3, and the east 1⁄2 of said alley adjoining FractionalLot 1 and Lot 2 in Block 3, and together with the east 1⁄2 of vacated SecondStreet adjoining said Block 4, and together with the north 1⁄2 of vacated PierceStreet adjoining Lots 8 and 9 of said Block 4, all of which, upon vacation,attached to said property by operation of law pursuant to Ordinance No. 397dated December 20, 1999 in the Town, now City of La Grange, Lewis County,Missouri.

 

**Tract4:**

 

All of Lots Four (4), Five (5), Six (6), Seven (7),Ten (10), Eleven (11), Twelve (12). Thirteen (13) and Fourteen (14) in BlockFour (4) in Marlow’s Addition together with the vacated alley adjoiningLots 4, 5, 10 and 11 of Block 4, and together with the west 1⁄2 of vacated SecondStreet adjoining such lots in said Block 4, and together with the north 1⁄2 ofvacated Pierce Street adjoining all such lots in said Block 4, all of which,upon vacation, attached to said property by operation of law pursuant toOrdinance No. 397 dated December 20, 1999 in the Town, now City of LaGrange, Lewis County, Missouri.

 

1

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**Tract5:**

 

All of Lots Two (2), Three (3), Four (4), Five (5),Six (6), Seven (7). Eight (8) and Nine (9) in Block Eight (8) inMarlow’s Addition together with the vacated alley adjoining, which, uponvacation, attached to said property by operation of law pursuant to Ordinance No. 397dated December 20, 1999 in the Town, now City of La Grange, Lewis County,Missouri.

 

**Tract6:**

 

All of Lots One (1), Two (2), Three (3). Four (4),Five (5), Six (6), Seven (7), Eight (8), Nine (9) and Ten (10) inBlock Five (5) in Marlow’s Addition together with the vacated alleyadjoining, and together with the north 1⁄2 of vacated Buchannan Street and thewest 1⁄2 of vacated Second Street, and the south 1⁄2 of vacated Pearce Street, allof which, upon vacation, attached to said property by operation of law pursuantto Ordinance No. 397 dated December 20, 1999 in the Town, now City ofLa Grange, Lewis County, Missouri.

 

**Tract7:**

 

All of Block Two (2) of Marlow’s Addition to theTown, now City of La Grange, Lewis County, Missouri, lying East of State RouteB in the Town, now City of La Grange, Lewis County, Missouri.

** **

**Tract8:**

 

Lots Six (6), Seven (7), Eight (8), Nine (9) andTen (10) in Block Two (2) of Marlow’s Addition together with the east1⁄2 of vacated Second Street and the south 1⁄2 of vacated Pierce Street, all ofwhich, upon vacation, attached to said property by operation of law pursuant toOrdinance No. 397 dated December 20, 1999 in the Town, now City of LaGrange, Lewis County, Missouri.

 

**Tract9:**

 

Lots One (1). Two (2), Three (3), Four (4) Five(5), Six (6), Seven (7) and Eight (8) in Block Six (6) of Marlow’sAddition, together with the vacated alley adjoining, and the south 1⁄2 ofBuchanan Street, all of which, upon vacation, attached to said property byoperation of law pursuant to Ordinance No. 397 dated December 20,1999 in the City of La Grange, Lewis County, Missouri,

 

**Tract10:**

 

All of Lots One (1), Two (2), Three (3) andfractional Lots Four (4), Five (5) and Six (6) in Block One (1) inMarlow’s Addition lo the Town, now City of La Grange, Lewis County, Missouri.

 

**Tract11:**

 

All of Lots Four (4), Five (5) and Six (6) inBlock Twenty-four (24) in Marlow’s Addition to the Town, now City of La Grange,Lewis County, Missouri,

 

2

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**Tract12:**

 

All of Lots Four (4), Five (5), Six (6) and Seven(7) in Block Twenty-three (23) in Marlow’s Addition to the Town. now Cityof La Grange, Lewis County, Missouri.

 

**Tract13:**

 

Lots Nine (9), Ten (10), Eleven (11), Twelve (12),Thirteen (13), Fourteen (14), Fifteen (15) and Sixteen (16) in Block Twenty-two(22) of Marlow’s Addition to the City of La Grange, Lewis County, Missouri.

 

**Tract14:**

 

All of Lots (2) and Three (3) in Block Nine (9) inMarlow’s Addition to the Town, now City of La Grange, Lewis County, Missouri.

 

**DESCRIPTIONOF THE LEASEHOLD ESTATE**

 

**Leasehold interest in the following describedproperty under the terms of a Lease dated December 29, 1999, and shown byMemorandum of Lease recorded on September 29, 2000, in Book 436, at page 106,in the office Recorder of Deeds for Lewis County, Missouri, by and between MarkTwain Casino, L.L.C., a Limited Liability Company, and the City of La Grange,Lewis County, Missouri:**

 

**LeaseholdTract 1:**

 

All of Lot Fifteen (15) and Fractional Lot Sixteen(16) in Block Three (3) of Marlow’s Addition, together with the west 1⁄2 ofthe vacated alley adjoining said lots, and together with the east 1/2 of SecondStreet adjoining said lots, which, upon vacation, attached to said property byoperation of law pursuant to Ordinance No. 397 dated December 20,1999 in the City of La Grange, Lewis County, Missouri.

 

**LeaseholdTract 2:**

 

Lots One (1) and Eight (8) in Block Five (5) ofWaltman and Louthan’s Addition to the City of La Grange, Lewis County,Missouri.

 

END OF EXHIBIT A

 

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EXHIBIT “B”

 

(Lenders)

 
|   |   | Bank of America, N.A.                        |
|--------|--------|----------------------------------------------|
|   |   | U.S. Bank National Association               |
|   |   | Wells Fargo Bank, N.A                        |
|   |   | Lehman Commercial Paper Inc.                 |
|   |   | The CIT Group/Equipment Financing, Inc. |
|   |   | Comerica West Incorporated                   |
|   |   | Nevada State Bank                            |
|   |   | American Express Certificate Company         |
|   |   | IDS Life Insurance Company                   |
|   |   | Centurion CDO 8, Limited                     |
|   |   | Black Diamond CLO 2005-1 Ltd.                |
|   |   | Carlyle High Yield Partners II, Ltd.         |
|   |   | Carlyle High Yield Partners III, Ltd.        |
|   |   | Carlyle High Yield Partners VI, Ltd.         |
|   |   | Carlyle Loan Investment Ltd                  |
|   |   | Senior Debt Portfolio                        |
|   |   | Eaton Vance Institutional Senior Loan Fund   |
|   |   | Eaton Vance CDO III, Ltd.                    |
|   |   | Costantinus Eaton Vance CDO V, Ltd.          |
|   |   | Eaton Vance CDO VI, Ltd.                     |
|   |   | Grayson & Co                        |
|   |   | The Norinchukin Bank, New York Branch        |

 

1

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|   |   | Tolli &  Co.                                                                             |
|--------|--------|---------------------------------------------------------------------------------------------------|
|   |   | Fidelity  Central Investment Portfolios LLC: Fidelity Floating Rate Central Investment  Portfolio |
|   |   | Fidelity  Advisor Series II: Fidelity Advisor Floating Rate High Income Fund (161)           |
|   |   | Franklin  Floating Rate Trust                                                                     |
|   |   | Franklin  Floating Rate Master Series                                                             |
|   |   | Franklin CLO  IV, Limited                                                                         |
|   |   | ELF Funding  Trust I                                                                              |
|   |   | Highland  Offshore Partners, L.P.                                                                 |
|   |   | Pioneer  Floating Rate Trust                                                                      |
|   |   | Loan Star  State Trust                                                                            |
|   |   | ING Prime  Rate Trust                                                                             |
|   |   | ING Senior  Income Fund                                                                           |
|   |   | Floating  Rate Income Strategies Fund II, Inc. (FRB)                                         |
|   |   | Southport  CLO, Limited                                                                           |
|   |   | Loan Funding  XI LLC                                                                              |
|   |   | Harbour Town  Funding LLC                                                                         |
|   |   | Race Point  CLO, Limited                                                                          |
|   |   | Race Point  II CLO, Limited                                                                       |
|   |   | ULT CBNA  Loan Funding LLC                                                                        |
|   |   | Van Kampen  Senior Income Trust                                                                   |
|   |   | Van Kampen  Senior Loan Fund                                                                      |
|   |   | Bank of  Scotland                                                                                 |

 

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