Exhibit 10.64


 


	
  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.

  
	
  APN:

  
	
   

  
	
  Mail Property Tax
  Statements to:

  
	
  c/o Herbst Gaming, Inc.

  
	
  5195 Las Vegas Blvd.

  
	
  Las Vegas, NV  89119

  
	
  Attn:  M. Higgins

  
	
   

  
	
   

  
	
  THIS SPACE ABOVE FOR
  RECORDER’S USE

  



 


 


LEASEHOLD DEED OF TRUST

with Assignment of Rents, Security Agreement and

Fixture Filing


 


NOTICE:  THE OBLIGATIONS SECURED HEREBY PROVIDE FOR
THE PERIODIC INCREASES AND/OR DECREASES IN THE APPLICABLE INTEREST RATE.


 


NOTICE:  THE OBLIGATIONS SECURED HEREBY INCLUDE
REVOLVING CREDIT OBLIGATIONS WHICH PERMIT BORROWING, REPAYMENT AND REBORROWING.


 


NOTICE:  THIS DEED OF TRUST SECURES FUTURE ADVANCES.  THE MAXIMUM AMOUNT OF PRINCIPAL SECURED IS
$190 MILLION.


 


The parties to this
Leasehold Deed of Trust with Assignment of Rents, Security Agreement and
Fixture Filing (“Deed of Trust”), dated as of June 10, 2004, are E-T-T, INC., a
Nevada corporation (“Trustor”), as trustor, PRLAP, INC., as trustee
(“Trustee”), and BANK OF AMERICA, N.A., a national banking association, as
“Administrative Agent” for the “Lenders” including, without limitation, “the
Swing Line Lender” (as each of those three terms is defined in the Credit
Agreement), as beneficiary and secured party (“Beneficiary”).  Capitalized terms used and not otherwise
defined herein shall have the meanings given to them in that certain Credit
Agreement, dated as of June 10, 2004 (“Credit Agreement”) by and among Herbst
Gaming, Inc., a Nevada corporation (“Borrower”), each lender whose name is set
forth on the signature pages therein and each lender that may hereafter become
a party to the Credit Agreement pursuant to Section 10.6 therein (each a “Lender”
and collectively, the “Lenders”), Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, Banc of America Securities LLC, as a
Co-Lead Arranger and Sole Book Manager, U.S. Bank, National Association, as a
Co-Lead Arranger, Wells Fargo Bank, National Association, as Syndication Agent
and Lehman Brothers Holdings, Inc., as Documentation Agent.


 


1
















 


1.                                       Grant in Trust and Secured Obligations.


 


1.1                                 Grant in Trust.  For the purpose
of securing payment and performance of the Secured Obligations defined and
described in Section 1.2, Trustor hereby irrevocably and
unconditionally grants, bargains, conveys, sells, transfers and assigns to
Trustee, in trust for the benefit of Beneficiary, 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 to the following property (all or any part
of such property, or any interest in all or any part of it, as the context may
require, the “Property”):


 


(a)                                  All of Trustor’s right, title and interest under and
in connection with that certain sublease dated as of July 1, 1997 between E-T-T
Enterprises L.L.C., as sublandlord and Trustor, as subtenant (the “Operating
Lease”), a memorandum of which is being recorded concurrently herewith in the
Official Records of Clark County, Nevada (“Official Records”), including,
without limitation, (i) all options to extend or renew the Operating Lease
(and the leasehold estate for the term of each extension or renewal),
(ii) all options and rights of first refusal contained in the Operating
Lease to purchase the real property which is subject to the Operating Lease,
and (iii) all of Trustor’s other rights, titles and interests under the
Operating Lease; together with


 


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


 


(c)                                  All buildings, structures and improvements now located
or later to be constructed on the Land, including, without limitation, all
parking areas, roads, driveways, walks, fences, walls, docks, berms,
landscaping, recreation facilities, drainage facilities, lighting facilities
and other site improvements (the “Improvements”); together with


 


(d)                                 All existing and future appurtenances, privileges,
easements, franchises, hereditaments and tenements of the Land, including all
minerals, oil, gas, other hydrocarbons and associated substances, sulphur,
nitrogen, carbon dioxide, helium and other commercially valuable substances
which may be in, under or produced from any part of the Land, all development
rights and credits, air rights, water, water courses, water rights (whether
riparian, appropriative or otherwise, and whether or not appurtenant), water
stock and water permits (together with the statutory right to file applications
to change, and any and all applications to change the same), including any water
permits, easements, rights of way, rights of ingress and egress, drainage
rights, 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 or
adjoining the Land and Improvements, any land in the bed of any body of water
adjacent to the Land, any land adjoining the Land created by artificial means
or by accretion, all air space and rights to use such air space, and all
development and similar rights; together with


 


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


 


2
















 


not transferable), occupancy agreements, concessions
and any other agreement devising any portion of the Property or relating to the
use and enjoyment of all or any part of the Land and Improvements, and any and
all guaranties and other 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 of this Deed of Trust or entered into after the recordation of
this Deed of Trust (some or all collectively, as the context may require,
“Leases”, which shall not include the Operating Lease), and all rents, 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, all prepaid
rents, security deposits, fixed, additional and contingent rents, deficiency
rents and liquidated damages, license fees, occupancy charges, hotel room
charges, cabana charges, casino revenues, show ticket revenues, food and
beverage revenues, room service revenues, merchandise sales revenues, parking,
maintenance, common area, tax, insurance, utility and service charges and
contributions, 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 shop
revenues, liquidated damages, and all other rights to payments, together with
and any and all guaranties and other agreements relating to or made in connection
with any of such leases (some or all collectively, as the context may require,
“Rents”); together with


 


(f)                                    All goods, materials, supplies, chattels, furniture,
fixtures, equipment, machinery and other property now or later to be attached
to, placed in or on, or used in connection with the use, enjoyment, occupancy
or operation of all or any part of the Land and Improvements, whether stored on
the Land or elsewhere, including all pumping plants, engines, pipes, ditches
and flumes, and also all gas, electric, cooking, heating, cooling, air
conditioning, lighting, refrigeration and plumbing fixtures and equipment, all
water, 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, vacuum
cleaning, public address and communications equipment and systems, all kitchen
and laundry appliances, screens, awnings, floor coverings, partitions,
elevators, escalators, motors, machinery, pipes, fittings and other items of
equipment and property of every kind and description, all of which shall be
considered to the fullest extent of the law to be real property for purposes of
this Deed of Trust; together with


 


(g)                                 All building materials, equipment, work in process or
other 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 delivered
to, incorporated into or installed in or about the Land or Improvements;
together with


 


(h)                                 All rights to the payment of money, accounts, accounts
receivable, reserves, deferred payments, refunds, cost savings, payments and
deposits, room revenues, food revenues, beverage revenues and casino revenues,
whether now or later to be received from third parties (including all earnest
money sales deposits) or deposited by Trustor with third parties (including all
utility deposits), contract rights, development and


 


3
















 


use rights, governmental permits and licenses (except
for gaming licenses and liquor licenses that are not transferable),
authorizations, certificates, variances, consents and approvals, applications,
architectural and engineering plans, specifications and 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 and proceeds thereof
(including without limitation the right to assert, prosecute and settle claims
under such policies), chattel paper, instruments, documents, notes,
certificates of deposit, securities, other investments, drafts and letters of
credit (other than letters of credit in favor of Beneficiary), which arise from
or relate to construction on the Land or to any business now or later 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 conversion
of any of the Land, Improvements or the other property described above into
cash or liquidated claims, including proceeds of all present and future fire,
hazard or casualty insurance policies (whether or not any such insurance policy
is required by this Deed of Trust or any other Loan Document) and all
condemnation awards or payments now or later to be made by any public body or
decree by any court of competent jurisdiction for any taking or in connection
with any condemnation or eminent domain proceeding, and all causes of action and
their proceeds for any damage or injury to the Land, Improvements or the other
property described above or any part of them, or breach of warranty in
connection with the construction of the Improvements, including causes of
action arising in tort, contract, fraud or concealment of a material fact;
together with


 


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


 


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


 


Notwithstanding the foregoing,
the term “Property,” as used in this Deed of Trust, shall not include (i) any
personal property or fixtures, the purchase of which was financed by a purchase
money security interest, including any capital lease obligation, permitted
under the Credit Agreement to the extent that the documents creating such
purchase money security interest or capital lease prohibit the granting
thereon, but only for so long as the related


 


4
















 


indebtedness remains outstanding, (ii) any capital
stock or other equity interests in any gaming licenses, and (iii) any gaming
licenses and liquor licenses which are not transferable.


 


Trustor shall and will warrant and forever
defend the Property in the quiet and peaceable possession of the Trustee, its
successors and assigns against all and every person or persons lawfully
claiming or to claim the whole or any part thereof.  Trustor agrees that any greater title to the
Property hereafter acquired by Trustor during 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 the security
interest set forth in Article 3 for the purpose of securing the following
obligations (collectively, the “Secured Obligations”) in any order of priority
that Beneficiary may choose:


 


(a)                                  Except as specified in Section 1.2.2 below, the
payment and performance of each obligation of Trustor pursuant to that certain
Guaranty (the “Guaranty”), dated concurrently herewith, executed by Trustor in
favor of Beneficiary.  The Guaranty has
been entered into by Trustor to, among other things, guaranty the payment and
performance of all obligations of Borrower and any other “Obligor” (as defined
in the Guaranty) to Beneficiary under the Credit Agreement and all related Loan
Documents, pursuant to which the Lenders have extended or have agreed to extend
to the Borrower certain secured revolving and term credit facilities, presently
in the aggregate amount of $150,000,000, but subject to increase to
$190,000,000 under certain circumstances (the “Commitment”), including, but not
limited to the payment of all amounts owing under the Swing Line Loan Note, the
payment of all amounts owing with respect to the Letters of Credit, including
without limitation unreimbursed drawings and obligations to furnish cash
collateral as provided in the Credit Agreement, and the payment of all amounts
owing under any and all Secured Swap Contracts entered into by the Borrower
with any Lender or Affiliate thereof;


 


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


 


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


 


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


 


1.2.2                        Notwithstanding any provision of this Deed of Trust or
any other Loan Document, the obligations and liability of Trustor, any Borrower
or any other person arising under Sections 5.09 and/or 10.04 of
the Credit Agreement (and/or under any separate


 


5
















 


agreement relating to
Hazardous Materials which states that it is not secured by real property) are
not and shall not be Secured Obligations under this Deed of Trust.


 


1.2.3                        All persons who may have or acquire an interest in all
or any part of the Property will be considered to have notice of, and will be bound
by, the terms of the Secured Obligations and each other agreement or instrument
made or entered into in connection with each of the Secured Obligations.  Such terms include any provisions in the
Credit Agreement or the other Loan Documents which permit borrowing, repayment
and reborrowing, or which provide that the interest rate on one or more of the
Secured Obligations may vary from time to time.


 


1.3                                 Future Advances (NRS 106.300, et seq). 
It is the intention of Trustor, Beneficiary and the Lenders that this
Deed of Trust is an “instrument” (as defined in NRS 106.330, as amended or
recodified from time to time) which secures “future advances” (as defined in
NRS 106.320, as amended or recodified from time to time) and which is governed
pursuant to NRS 106.300 through 106.400, as amended or recodified from
time to time (“NRS” means Nevada Revised Statutes).  It is the intention of the parties that the
Secured Obligations include the obligation of Trustor to repay “future
advances” of “principal” (as defined in NRS 106.345, as amended or recodified
from time to time) in an amount up to the Commitment (as further described
above), and that the lien of this Deed of Trust secures the obligation of
Trustor to repay all such “future advances” with the priority set forth in
NRS 106.370(1), as amended or recodified from time to time.


 


2.                                       Assignment of Rents and Leases.


 


2.1                                 Assignment.  Trustor
hereby irrevocably, absolutely, presently and unconditionally assigns,
transfers and sets over to Beneficiary all of the right, title and interest
which 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 the
provisions of the Leases with or without taking possession of the Property.  This is an absolute assignment, not an
assignment for security only.


 


2.2                                 Grant of License.  Beneficiary
hereby confers upon Trustor a license (“License”) to collect and retain the
Rents as they become due and payable, so long as no Event of Default, as
defined in Section 6.2, shall exist and be continuing.  If an Event of Default has occurred and is
continuing, Beneficiary shall have the right, which it may choose to exercise
in its absolute discretion, to terminate this License without notice to or demand
upon Trustor, and without regard to the adequacy of Beneficiary’s security
under this Deed of Trust.


 


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 and
exercise Trustor’s right, title and interest under the Leases.  Trustor hereby appoints Beneficiary its
attorney-in-fact to perform any and all of the following acts, if and at the times
when Beneficiary in its absolute discretion may so choose:


 


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


 


6
















 


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


 


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


 


Beneficiary’s right to
the Rents and the Leases does not depend on whether or not Beneficiary takes
possession of the Property as permitted under Section 6.3.3.  In Beneficiary’s absolute discretion,
Beneficiary may choose to collect Rents and exercise the right, title and
interest of Trustor under the Leases either with or without taking possession
of the Property.  Beneficiary shall apply
all Rents collected by it in the manner provided under Section 6.6.  If an Event of Default shall have occurred
and Beneficiary is in possession of all or part of the Property and is
collecting and applying Rents and exercising any right, title and interest of
Trustor under the Leases as permitted under this Deed of Trust, then
Beneficiary, Trustee and any receiver shall nevertheless be entitled to
exercise and invoke every right and remedy afforded any of them under this Deed
of Trust and at law and in equity, including the right to exercise the power of
sale granted under Section 1.1 and Section 6.3.7.


 


2.4                                 Beneficiary Not Responsible.  Under
no circumstances shall Beneficiary have any duty to produce Rents from the
Property or maintain the Leases. 
Regardless of whether or not Beneficiary, in person or by agent, takes
actual possession of the Land and Improvements, Beneficiary is not and shall
not be deemed to be:


 


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


 


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


 


(c)                                  responsible for any waste committed by lessees or any
other parties, any dangerous or defective condition of the Property, or any
negligence 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 2.4 shall not be construed as a waiver of
any liability of Beneficiary to Trustor that would otherwise exist as a result
of Beneficiary’s gross negligence or willful misconduct.


 


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


 


7
















 


3.                                       Grant of Security Interest.


 


3.1                                 Security Agreement.  The parties
intend for this Deed of Trust to create a lien on and security interest in the
Property, and an absolute assignment of the Rents and the Leases, all in favor
of Beneficiary.  The parties acknowledge
that some of the Property and some of the Rents and Leases may be determined
under applicable law to be personal property or fixtures.  To the extent such Property, Rents or Leases
constitute 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, as
debtor, also has granted a security interest in such Property, Rents and Leases
pursuant to that certain Security Agreement dated concurrently herewith,
executed by the Borrower and each of its Subsidiaries, as debtor, in favor of
Beneficiary, as secured party, as modified from time to time.  This Deed of Trust constitutes a security
agreement under the Nevada Uniform Commercial Code, as amended or recodified
from time to time, covering all such Property, Rents and Leases.  To the extent any revenues generated in
connection with the operation of the Property from time to time are not real
property encumbered by the lien created by Section 1.1, above, and
are 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) of the United States Bankruptcy Code, as such
section may be modified or supplemented) of the Land and Improvements, and/or
“fees, charges, accounts, or other payments for the use or occupancy of rooms
and other public facilities in hotels, motels or other lodging properties,” as
applicable (as such terms are defined in and for the purpose of Section 552(b)
of the United States Bankruptcy Code, as such Section may be modified or
supplemented).


 


3.2                                 Financing Statements.  Trustor
consents to one or more financing statements and such other documents as
Beneficiary may from time to time require to perfect or continue the perfection
of Beneficiary’s security 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 such
documents in public offices and in obtaining such record searches as
Beneficiary may reasonably require.  If
Trustor fails to execute any financing statements or other documents for the
perfection or continuation of any security interest, Trustor hereby appoints
Beneficiary as its true and lawful attorney-in-fact (which appointment is
irrevocable and coupled with an interest) to execute any such documents on its
behalf.  If any financing statement or
other document is filed in the records normally pertaining to personal
property, that filing shall never be construed as in any way derogating from or
impairing this Deed of Trust or the rights or obligations of the parties under
it.


 


4.                                       Fixture Filing. 
This Deed of Trust constitutes a financing statement filed as a fixture
filing under NRS 104.9502(2) of the Nevada Uniform Commercial Code, as
amended or recodified from time to time, covering any Property which now is or
later may become fixtures attached to the Land or Improvements.  In connection therewith, the addresses of
Trustor, as debtor, and Beneficiary, as secured party, are as set forth in
Section 8.11, below.  The
foregoing address of Beneficiary, as secured party, is also the address from
which information concerning the security interest may be obtained by any
interested party.  The property subject to
this fixture filing is described in Section 1.1, above.  Portions of the property subject to this
fixture filing as


 


8
















 


identified in this
Section are or are to become fixtures related to the real estate described 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 to
Beneficiary in a writing making reference to this Section 5.1:


 


(a)                                  Trustor lawfully possesses and holds the leasehold
estate under the Operating Lease;


 


(b)                                 Trustor has or will have good title to all Property
other than the Land and Improvements (other than personal property utilized by
Trustor under such equipment leases and similar financing arrangements as were
disclosed to Beneficiary in writing prior to the execution of this Deed of
Trust or as are hereafter entered into by Trustor in accordance with the Credit
Agreement);


 


(c)                                  Subject to applicable gaming laws and regulations of
the State of Nevada, Trustor has the full and unlimited power, right and
authority to encumber the Property and assign the Rents and the Leases;


 


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


 


(e)                                  The Property includes all property and rights which
may be reasonably necessary to promote the present beneficial use and enjoyment
of the Land and Improvements;


 


(f)                                    Trustor owns any Property which is personal property
free and clear of any security agreements, reservations of title or conditional
sales contracts, and there is no financing statement affecting such personal
property on file in any public office (other than personal property utilized by
Trustor under such equipment leases and similar financing arrangements as were
disclosed to Beneficiary in writing prior to the execution of this Deed of
Trust or as are hereafter entered into by Trustor in accordance with the Credit
Agreement);


 


(g)                                 Trustor’s place of business, or its chief executive
office if it has more than one place of business, is located at the address
specified below; and


 


(h)                                 None of the Property is located in an area having or
identified as having special flood hazards or any similar designation under the
National Flood Insurance Act of 1968, as amended or recodified from time to
time, or the Flood Disaster Protection Act of 1973, as amended or recodified
from time to time.


 


5.2                                 Taxes and Assessments.  Trustor shall
pay prior to delinquency all taxes, levies, charges and assessments, including
assessments on appurtenant water stock, imposed by any public or quasi-public
authority or utility company which are (or if not paid, may become) a lien on
or security interest in all or part of the Property or any interest in it, or
which may cause


 


9
















 


any decrease in the value
of the Property or any part of it.  If
any such taxes, levies, charges or assessments become delinquent, Beneficiary
may require 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 5.11 of 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
accordance with its terms.


 


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


 


5.5                                 Damages and Insurance and Condemnation Proceeds.


 


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


 


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


 


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


 


(c)                                  All proceeds of any insurance policies payable because
of 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 in
writing if:


 


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


 


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


 


5.5.3                        If Beneficiary chooses to do so, Beneficiary may in
its own name appear in or prosecute any action or proceeding to enforce any
cause of action based on


 


10
















 


warranty, or for damage,
injury or loss to all or part of the Property and, while any Event of Default
remains uncured, Beneficiary may make any compromise or settlement of the
action or proceeding.  Beneficiary, if it
so chooses, may participate in any action or proceeding relating to
condemnation or taking of all or part of the Property, and may join Trustor in
adjusting any loss covered by insurance. 
Trustor hereby irrevocably appoints Beneficiary its true and lawful
attorney-in-fact for all such purposes. 
The power of attorney granted hereunder is coupled with an interest and
is irrevocable.  Trustor shall not
settle, adjust or compromise any such action or proceeding without the prior
written approval of Beneficiary, which shall not be unreasonably withheld or
delayed.


 


5.5.4                        All proceeds of these assigned claims, other property
and rights which Trustor may receive or be entitled to (collectively,
“Proceeds”) shall be paid to Beneficiary. 
In each instance, Beneficiary shall apply such Proceeds first toward
reimbursement of all of Beneficiary’s costs and expenses of recovering the
Proceeds, including attorneys’ fees.  If,
in any instance, each and all of the following conditions (the “Restoration
Conditions”) are satisfied in Beneficiary’s reasonable judgment, Beneficiary
shall permit Trustor to use the balance of such Proceeds (“Net Claims
Proceeds”) to pay costs of repairing or reconstructing the Property in the
manner described below:


 


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


 


(b)                                 Beneficiary must receive evidence reasonably
satisfactory to it that, after repair or reconstruction, the Property will be
at least as valuable as it was immediately before the damage or condemnation
occurred; and


 


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


 


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


 


If Beneficiary finds that
such conditions have been met, Beneficiary shall hold the Net Claims Proceeds
and any funds which Trustor is required to provide in an interest-bearing
passbook savings account and shall disburse them to Trustor on a monthly basis
in accordance with Beneficiary’s customary construction lending
procedures.  However, if an Event of
Default has occurred and is continuing, Beneficiary may apply the Net Claims
Proceeds to pay or prepay (without premium) some or all of the Secured
Obligations in such order and proportions as Beneficiary in its absolute
discretion may choose (subject to the provisions for priority of application of
payments set forth in the Credit Agreement). 
Any and all Proceeds (including, without limitation, any Net Claims Proceeds)
held by Beneficiary from time to time shall be collateral for the Secured
Obligations, and Trustor hereby grants to Beneficiary a security


 


11
















 


interest in and lien on
such Proceeds and all rights and remedies available under applicable laws with
respect to such Proceeds, including, without limitation, all rights and
remedies under the Nevada Uniform Commercial Code.  Trustor shall execute and deliver to
Beneficiary and the Lenders any and all documents reasonably requested by
Beneficiary in order to confirm, create and perfect such security interest in
and lien on such Proceeds.  In the event
that any Proceeds are applied to pay any Secured Obligations, then Beneficiary
shall have no obligation to disburse or release such applied Proceeds to
Trustor under this Section 5.5. 
If no Event of Default shall have occurred and be continuing, any funds
remaining upon completion of the repair or reconstruction shall be returned to
Trustor.


 


5.5.5                        Trustor hereby specifically, unconditionally and irrevocably
waives all rights of a property owner granted under applicable law, including
NRS 37.115, as amended or recodified from time to time, which provide for
allocation of condemnation proceeds between a property owner and a lienholder,
and any other law or successor statute of similar import.  Trustor hereby specifically, unconditionally
and irrevocably waives all right to recover against Beneficiary or any Lender
(or any officer, employee, agent or representative of Beneficiary or any
Lender) for any loss incurred by Trustor from any cause insured against or
required by any Loan Document to be insured against; provided, however, that
this waiver of subrogation shall not be effective with respect to any insurance
policy if the coverage thereunder would be materially reduced or impaired as a
result.


 


5.5.6                        Notwithstanding anything to the contrary set forth in
this 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 the
applicable damage and/or taking is less than $250,000 shall be paid to Trustor
rather than to Beneficiary (and shall be delivered to Trustor if received by
Beneficiary), and Trustor shall not be required to obtain Beneficiary’s consent
to settle, adjust or compromise any action or proceeding relating to any such
casualty or condemnation (nor shall Beneficiary be entitled to participate in
such action or proceeding).


 


5.6                                 Maintenance and Preservation of Property.


 


5.6.1                        Except as permitted in the Credit Agreement, Trustor
shall not remove or demolish the Property or any part of it, or alter, restore
or add to the Property, or initiate or allow any change in any zoning or other
land use classification which affects the Property or any part of it, except as
permitted or required by the Credit Agreement or with Beneficiary’s express
prior written consent in each instance; provided that, without Beneficiary’s
consent, Trustor shall be entitled to remove personal property in the ordinary
course of Trustor’s business so long as any such personal property is replaced
with property of comparable value.


 


5.6.2                        If all or part of the Property becomes damaged or
destroyed, Trustor shall promptly and completely repair and/or restore the
Property in a good and workmanlike manner in accordance with sound building
practices, regardless of whether or not Beneficiary agrees to disburse
insurance proceeds or other sums to pay costs of the work of repair or
reconstruction under Section 5.5.


 


5.6.3                        Trustor shall not commit or allow any act upon or use
of the Property which would violate: 
(i) any applicable law or order of any Governmental Agency,


 


12
















 


whether now existing or
later to be enacted and whether foreseen or unforeseen (except to the extent
that noncompliance would not cause a Material Adverse Effect or a License
Revocation); or (ii) any public or private covenant, condition,
restriction or equitable servitude affecting the Property.  Trustor shall not bring or keep any article
on the Property or cause or allow any condition to exist on it, that could
invalidate or would be prohibited by any insurance coverage required to be
maintained by Trustor on the Property or any part of it under this Deed of
Trust.


 


5.6.4                        Trustor shall not commit or allow waste of the
Property.


 


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


 


5.7                                 Insurance.


 


5.7.1                        Trustor shall maintain the following insurance with
respect to the Property:


 


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


 


(b)                                 Trustor shall provide, maintain and keep in force at
all times for all portions of the Property not covered by a policy or policies
described in Section 5.7.1(a), above, a policy or policies of fire and hazards
“all risk” insurance providing extended coverage, in an amount not less than
the full insurable value of such portions of the Property on a replacement cost
basis.  The policy or policies shall
insure against loss or damage by hazards customarily included within “all risk”
and “extended coverage” policies and any other risks or hazards which
Beneficiary may reasonably specify (and shall include boiler and machinery
insurance), and each shall contain a Lender’s Loss Payable Endorsement (Form
438 BFU or equivalent) in favor of Beneficiary.


 


13
















 


(c)                                  Trustor shall provide, maintain and keep in force at
all times for all portions of the Property any policy or policies of business
interruption insurance that Beneficiary reasonably requires (including insurance
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 438 BFU or
equivalent) in favor of Beneficiary.


 


(d)                                 Trustor shall provide, maintain and keep in force at all
times a policy or policies of comprehensive liability insurance naming
Beneficiary and the Lenders as additional insureds, on an “occurrence” basis,
against claims for “personal injury” liability, including bodily injury, death
or property damage liability, with a limit of not less than Fifty Million
Dollars ($50,000,000).  Such insurance
shall be primary and noncontributory with any other insurance carried by
Beneficiary and/or any Lender(s).


 


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


 


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


 


5.7.2                        All such policies of insurance shall be issued by
companies approved by Beneficiary having a minimum A.M. Best’s rating of
A-:IX.  The limits, coverage, forms,
deductibles, inception and expiration dates and cancellation provisions of all
such policies shall be reasonably acceptable to Beneficiary.  Each property insurance policy maintained in
connection with any of the Property shall contain a Lender’s Loss Payable
Endorsement (Form 438 BFU or equivalent) in favor of Beneficiary, and shall
provide that all proceeds be payable to Beneficiary to the extent of its
interest.  Each liability insurance
policy maintained in connection with any of the Property shall name Beneficiary
and the Lenders as additional insureds. 
An approval by Beneficiary is not, and shall not be deemed to be, a representation
of the solvency of any insurer or the sufficiency of any amount of
insurance.  Each policy of insurance
required hereunder shall provide that it may not be modified or cancelled
without 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 a waiver of subrogation by Trustor in favor of Beneficiary and the
Lenders.


 


5.7.3                        Trustor shall supply Beneficiary with certificates of
each policy required hereunder and any other policy of insurance maintained in
connection with any of the Property, together with an original (which may be a
duplicate original) or underlyer of each such policy and all endorsements
thereto.  When any insurance policy required
hereunder expires, Trustor shall furnish Beneficiary with proof acceptable to
Beneficiary that the policy has been reinstated or a new policy issued,
continuing in force the insurance covered by the policy which expired.  If Trustor fails to pay any such premium,
Beneficiary shall have the right, but not the obligation, to obtain current
coverage and advance funds to pay the premiums for it.  Trustor shall repay Beneficiary immediately
on demand for any advance for such premiums, which shall


 


14
















 


be considered to be an
additional loan to Trustor bearing interest at the Default Rate, and secured by
this Deed of Trust and any other collateral held by Beneficiary in connection
with 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 Additional
Security.


 


5.9.1                        From time to time, Beneficiary and/or any Lender may
perform any of the following acts without incurring any liability or giving
notice to any person, and without affecting the personal liability of any
person for the payment of the Secured Obligations (except as provided below),
and without affecting the security hereof for the full amount of the Secured
Obligations on all Property remaining subject hereto, and without the necessity
that any sum representing the value of any portion of the Property affected by
Beneficiary’s and/or such Lender’s action(s) be credited on the Secured Obligations:


 


(a)                                  Release any person liable for payment of any Secured
Obligation;


 


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


 


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


 


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


 


5.9.2                        From time to time when requested to do so by
Beneficiary in writing, Trustee may perform any of the following acts without
incurring any liability or giving notice to any person:


 


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


 


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


 


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


 


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


 


5.10                           Reconveyance.  Upon
(a) the expiration or termination of the Commitment, (b) the full and
final payment in cash of the Loans and all interest and fees with respect
thereto, (c) the payment of all other amounts then demanded by Beneficiary
or any Lender or indemnitee and then owed under the Credit Agreement, and
(d) the payment of all


 


15
















 


other amounts then due
under the Guaranty and the other Loan Documents and the full payment and
performance of all other Secured Obligations (other than indemnity obligations,
if any, that are not then due), Beneficiary shall request Trustee in writing to
reconvey the Property, and shall surrender this Deed of Trust.  When Trustee receives Beneficiary’s written
request for reconveyance and all fees and other sums owing to Trustee by
Trustor under Section 5.11, Trustee shall reconvey the Property, or
so much of it as is then held under this Deed of Trust, without warranty, to
the person or persons legally entitled to it. 
Such person or persons shall pay any costs of recordation.  In the reconveyance, the grantee may be
described as “the person or persons legally entitled thereto,” and the recitals
of any matters or facts shall be conclusive proof of their truthfulness.  Neither Beneficiary nor Trustee shall have
any duty to determine the rights of persons claiming to be rightful grantees of
any reconveyance.


 


5.11                           Compensation, Exculpation, Indemnification.


 


5.11.1                  Trustor agrees to pay reasonable fees as may be charged by Beneficiary
and Trustee, subject to the maximum amounts legal permitted, for any services
that Beneficiary or Trustee may render in connection with this Deed of Trust,
including Beneficiary’s providing a statement of the Secured Obligations or
Trustee’s rendering of services in connection with a reconveyance.  Trustor shall also pay or reimburse all of
Beneficiary’s and Trustee’s costs and expenses which may be incurred in
rendering any such services.  Trustor
further agrees to pay or reimburse Beneficiary for all costs, expenses and
other advances which may be incurred or made by Beneficiary or Trustee in any
efforts to enforce any terms of this Deed of Trust, including any rights or
remedies afforded to Beneficiary or Trustee or both of them under Section 6.3,
whether any lawsuit is filed or not, or in defending any action or proceeding
arising under or relating to this Deed of Trust, including reasonable
attorneys’ fees and other legal costs, costs of any Foreclosure Sale (as
defined in Section 6.3.8) and any cost of evidence of title.  If Beneficiary chooses to dispose of the
Property through more than one Foreclosure Sale, Trustor shall pay all costs,
expenses or other advances that may be incurred or made by Trustee or Beneficiary
in each of such Foreclosure Sales.


 


5.11.2                  Beneficiary shall not be directly or indirectly liable to Trustor or
any other person as a consequence of any of the following:


 


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


 


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


 


(c)                                  Any loss sustained by Trustor or any third party
resulting from Beneficiary’s failure to lease or operate the Property, or from
any other act or omission of Beneficiary in managing the Property, after an
Event of Default, unless the loss is caused by the willful misconduct and bad
faith of Beneficiary.


 


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


 


16
















 


5.11.3                  Trustor agrees to indemnify Trustee, Beneficiary and the Lenders
(collectively, the “Indemnitees”) against and hold them harmless from 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 and expenses
which any of them may suffer or incur (except to the extent that any of the
foregoing are the result of the gross negligence or willful misconduct of any
such Indemnitee):


 


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


 


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


 


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


 


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


 


5.11.4                  Trustor shall pay all obligations to pay money arising under this Section 5.11
within five (5) business days demand by Beneficiary (or the applicable
Indemnitee).  Each such obligation shall
bear interest from the date the obligation arises at the Default Rate set forth
in the Credit Agreement, and any such obligation to a Lender shall be added to,
and considered to be part of, the principal of the Note in favor of such Lender
(and, in the event that such Lender holds more than one Note, the allocation of
such obligation among such Notes 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 defend
the Property and title to and right of possession of the Property, and the
security of this Deed of Trust and the rights and powers of Beneficiary and
Trustee created under it, against all adverse claims.  Trustor shall give Beneficiary and Trustee
prompt notice in writing if any claim is asserted which does or could affect
any of such matters, or if any action or proceeding is commenced which alleges
or relates to any such claim.


 


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


 


5.14                           Subrogation.  Subject to
Gaming Laws, Beneficiary shall be subrogated to the liens and security
interests of all encumbrances, whether released of record or not, which are


 


17
















 


discharged in whole or in
part by Beneficiary in accordance with this Deed of Trust 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 at
any reasonable time to enter and visit the Property for the purpose of
performing appraisals.  In addition, each
person indemnified by the Borrower under Section 10.04 of the
Credit Agreement (collectively, “Indemnified Parties”) and their agents and
representatives shall have the right at any reasonable time to enter and visit
the Property for the purposes of observing the Property, taking and removing
soil or groundwater samples, and conducting tests on any part of the Property;
provided that, so long as no Event of Default remains uncured, the Indemnified
Parties shall not be entitled to conduct any tests that would significantly
interfere with the operation of the Property. 
The Indemnified Parties have no duty, however, to visit or observe the
Property or to conduct tests, and no site visit, observation or testing by any
Indemnified Party shall impose any liability on any Indemnified Party.  In no event shall any site visit, observation
or testing by any Indemnified Party be a representation that 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.  Neither Trustor nor any
other party is entitled to rely on any site visit, observation or testing by
any Indemnified Party.  The Indemnified
Parties owe no duty of care to protect Trustor or any other party against, or
to inform Trustor or any other party of, any Hazardous Material or any other
adverse condition affecting the Property. 
Any Indemnified Party shall give Trustor reasonable notice before
entering the Property.  The Indemnified
Party shall make reasonable efforts to avoid interfering with Trustor’s use of
the Property in exercising any rights provided in this Section.


 


5.16                           Notice of Change.  Trustor shall
give Beneficiary prior written notice of (a) any change in the location of
Trustor’s place of business or its chief executive office if it has more than
one place of business, (b) any change in the location of any of the
Property, including the Books and Records, and (c) any change to Trustor’s name
or business structure.  Unless otherwise
approved by Beneficiary in writing, all Property that consists of personal
property (other than the Books and Records) will be located on the Land and all
Books and Records for the portion of the Property owned by Trustor will be
located at such Trustor’s place of business or chief executive office if such
Trustor has more than one place of business.


 


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


 


18
















 


6.                                       Accelerating Transfers, Defaults and
Remedies.


 


6.1                                 Accelerating Transfers.


 


6.1.1                        “Accelerating Transfer” means any sale, contract to
sell, conveyance, encumbrance, lease, alienation or further encumbrance of all
or any material portion of the Property (or any interest in it) which is not
expressly permitted under the Credit Agreement, or any other transfer of all or
any material portion of the Property (or any interest in it), whether
voluntary, involuntary, by operation of law or otherwise, unless Beneficiary
has given its prior written consent to such “Accelerating Transfer,” which
consent may be given or not given in the absolute discretion of
Beneficiary.  If Trustor is a corporation
or limited liability company, “Accelerating Transfer” also means any transfer
of any share or shares in Trustor.  If
Trustor is a partnership or limited liability company, “Accelerating Transfer”
also means withdrawal or removal of any general partner or manager, as the case
may be, dissolution of the partnership or limited liability company under
Nevada law, or any transfer of any partnership interest or any ownership interest
in the limited liability company.


 


6.1.2                        Trustor acknowledges that Beneficiary and the Lenders
are making one or more advances under the Credit Agreement in reliance on the
expertise, skill and experience of Trustor; thus, the Secured Obligations
include 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, unless the transfer is preceded by Beneficiary’s written
consent to the particular transaction and transferee.  Beneficiary may withhold such consent in its
absolute discretion.  If any Accelerating
Transfer occurs, Beneficiary may, in its absolute discretion (provided that it
has received any consents or approvals of any other Lenders required under the
Credit Agreement), declare all of the Secured Obligations to be immediately due
and payable, and Beneficiary and Trustee may invoke any rights and remedies
provided by Section 6.3 of this Deed of Trust.


 


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


 


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


 


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


 


(c)                                  Trustor, any other Borrower, any other Party, or any
other “borrower” (as that term is defined in NRS 106.310, as amended or
recodified from time to time) who may send a notice pursuant to NRS 106.380(1),
as amended or recodified from time to time, with respect to this Deed of Trust,
(i) delivers, sends by mail or otherwise gives, or purports to deliver,
send by mail or otherwise give, to Beneficiary or any Lender, (A) any
notice of an election to terminate the operation of this Deed of Trust as
security for any Secured Obligation, including, without limitation, any
obligation to repay any “future advance” (as defined in NRS 106.320, as amended
or recodified from


 


19
















 


time to time) of “principal” (as defined in NRS
106.345, as amended or recodified from time to time), or (B) any other
notice pursuant to NRS 106.380(1), as amended or recodified from time to time,
(ii) records a statement pursuant to NRS 106.380(3), as amended or
recodified from time to time, or (iii) causes this Deed of Trust, any
Secured Obligation, Beneficiary or any Lender to be subject to NRS 106.380(2),
106.380(3) or 106.400, as amended or recodified from time to time; or


 


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


 


6.3                                 Remedies.  At any time
after and during the continuance of an Event of Default (following the
expiration of any applicable cure period) and provided that Beneficiary has
received any consents or approvals of any other Lenders required under the
Credit Agreement, Beneficiary and Trustee will be entitled to invoke any or all
of the following rights and remedies (subject to any restrictions on those
rights and remedies imposed by applicable Gaming Laws), all of which will be
cumulative, and the exercise of any one or more of which shall not constitute
an election of remedies:


 


6.3.1                        Acceleration.  Beneficiary
may declare any or all of the Secured Obligations to be due and payable immediately.


 


6.3.2                        Receiver.  Beneficiary
may apply to any court of competent jurisdiction for, and obtain appointment
of, a receiver for the Property; and Beneficiary may request, in connection
with any foreclosure proceeding hereunder, that the Nevada Gaming Commission
petition a District Court of the State of Nevada for the appointment of a
supervisor to conduct the normal gaming activities on the Property following
such foreclosure proceeding.


 


6.3.3                        Entry.  Beneficiary,
in person, by agent or by court-appointed receiver, may enter, take possession
of, manage and operate all or any part of the Property, and may also do any and
all other things in connection with those actions that Beneficiary may in its
absolute discretion consider necessary and appropriate to protect the security
of this Deed of Trust.  Such other things
may include, without limitation:  taking
and possessing all of Trustor’s or the then owner’s Books and Records; entering
into, enforcing, modifying, or cancelling Leases on such terms and conditions
as Beneficiary may consider proper; obtaining and evicting tenants; collecting
and receiving any payment of money owing to Trustor; completing construction;
and/or contracting for and making repairs and alterations.  If Beneficiary so requests, Trustor shall
assemble all of the Property that has been removed from the Land and make all
of it available to Beneficiary at the site of the Land.  Trustor hereby irrevocably constitutes and
appoints Beneficiary as Trustor’s attorney-in-fact (which appointment is
coupled with an interest) to perform such acts and execute such documents as
Beneficiary in its absolute discretion may consider to be appropriate in
connection with taking these measures, including endorsement of Trustor’s name
on any instruments.  Regardless of any
provision of this Deed of Trust or the Credit Agreement, Beneficiary shall not
be considered to have accepted any property other than cash or immediately
available funds in satisfaction of any obligation of Trustor to Beneficiary
unless Beneficiary has given express written notice of Beneficiary’s election
of that remedy in accordance with NRS 104.9620, as it may be amended or
recodified from time to time.


 


20
















 


6.3.4                        Cure; Protection of Security. 
Either Beneficiary or Trustee may cure any breach or default of Trustor
and, if it chooses to do so in connection with any such cure, Beneficiary or
Trustee may (subject to applicable Gaming Laws) also enter the Property and/or
do any and all other things which either may in its absolute discretion
consider necessary and appropriate to protect the security of this Deed of
Trust.  Such other things may include,
without limitation:  appearing in and/or
defending any action or proceeding which purports to affect the security of, or
the 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’s
or Trustee’s sole judgment) is or may be senior in priority to this Deed of
Trust, such judgment of Beneficiary or Trustee to be conclusive as among the
parties to this Deed of Trust; obtaining insurance and/or paying any premiums
or charges for insurance required to be carried under this Deed of Trust and
the other Loan Documents; otherwise caring for and protecting any and all of
the Property; and/or employing counsel, accountants, contractors and other
appropriate persons to assist Beneficiary or Trustee.  Beneficiary and Trustee may take any of the
actions permitted under this Section 6.3.4 either with or without
giving notice to any person.


 


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


 


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


 


6.3.7                        Power of Sale.  Under the
power of sale hereby granted, Beneficiary shall have the discretionary right to
cause some or all of the Property, including any Property which constitutes
personal property, to be sold or otherwise disposed of in any combination and
in any manner permitted by applicable law.


 


(a)                                  Sales of Personal Property.


 


(i)                  For purposes of this power of sale, Beneficiary may elect to treat as
personal property any Property which is intangible or which can be severed from
the Land or Improvements without causing structural damage.  If it chooses to do so, Beneficiary may
dispose of any personal property separately from the sale of real property, in
any manner permitted by Article 9 of the Nevada Uniform Commercial Code, as
amended or recodified from time to time, including any public or private sale,
or in any manner permitted by any other applicable law.  Any proceeds of any such disposition shall
not cure any Event of Default or reinstate any Secured Obligation.


 


(ii)               In connection with any sale or other disposition of such Property,
Trustor agrees that the following procedures constitute a commercially
reasonable sale:  Beneficiary shall mail
written notice of the sale to Trustor not later than 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


 


21
















 


local daily newspaper of general circulation.  Upon receipt of any written request,
Beneficiary will make the Property available to any bona fide prospective
purchaser for inspection during reasonable business hours.  Notwithstanding any provision to the
contrary, Beneficiary shall be under no obligation to consummate a sale if, in
its judgment, none of the offers received by it equals the fair value of the
Property offered for sale.  The foregoing
procedures do not constitute the only procedures that may be commercially
reasonable.


 


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


 


(i)                                     Beneficiary may choose to dispose of some
or all of the Property which consists solely of real property in any manner
then permitted by applicable law.  In its
discretion, Beneficiary may also or alternatively choose to dispose of some or
all of the Property, in any combination consisting of both real and personal
property, together in one sale to be held in accordance with the law and
procedures applicable to real property, as permitted by Article 9 of the Nevada
Uniform Commercial Code, as amended or recodified from time to time.  Trustor agrees that such a sale of personal
property together with real property constitutes a commercially reasonable sale
of the personal property.  For purposes
of this power of sale, either a sale of real property alone, or a sale of both
real and personal property together in accordance with Article 9 of the Nevada
Uniform Commercial Code, as amended or recodified from time to time, will
sometimes be referred to as a “Trustee’s Sale.”


 


(ii)                                  Before any Trustee’s Sale, Beneficiary or
Trustee shall give such notice of default and election to sell as may then be
required by law.  When all time periods
then legally mandated have expired, and after such notice of sale as may then
be legally required has been given, Trustee shall sell the property being sold
at a public auction to be held at the time and place specified in the notice of
sale, provided, however, that no sale or other disposition of slot machines or
other gaming devices shall occur without first receiving the approval of the
applicable Gaming Board.  Neither Trustee
nor Beneficiary shall have any obligation to make demand on Trustor before any
Trustee’s Sale.  From time to time in
accordance with then applicable law, Trustee may, and in any event at
Beneficiary’s request shall, postpone any Trustee’s Sale by public announcement
at the time and place noticed for that sale.


 


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


 


22
















 


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


 


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


 


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


 


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


 


6.3.9                        Other Permitted Remedies. 
Beneficiary and the Lenders may refuse to make any advance to any
Borrower or issue any Letter of Credit for the account of any Borrower.  Beneficiary and the Lenders may exercise any
and all other rights and remedies available under the Loan Documents and
applicable law, including, without limitation, the right to file applications
to change, and to exercise all other rights and remedies available under
applicable law with respect to, all water permits and rights relating to the
Property; provided however that, notwithstanding the foregoing or any other
provision contained in this Deed of Trust, the remedies provided by this Deed
of Trust shall not include the right to take any action that violates
applicable Gaming Laws.


 


6.4                                 Credit Bids.  At any
Foreclosure Sale, any person, including Trustor, Trustee or Beneficiary, may
bid for and acquire the Property or any part thereof to the extent permitted by
then applicable law.  Instead of paying
cash for such property, Beneficiary may settle for the purchase price by
crediting against the sales price of the Property or any part thereof any or
all of the outstanding Secured Obligations (including without limitation the
portion of the Secured Obligations attributable to the expenses of sale, costs
of any action and any other sums for which Trustor is obligated to pay or
reimburse Beneficiary, the Lenders or Trustee under Section 5.11) in
such order 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 Sale
in the manner required by applicable law; provided that all proceeds that are
to be applied against the Secured Obligations shall, except as otherwise
required by applicable law, be applied against the Secured Obligations in any
order and proportions as Beneficiary in its absolute discretion may choose
(subject to any applicable provisions for priority of application of proceeds
set forth in either Credit Agreement).


 


23
















 


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


 


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


 


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


 


(c)                                  Third, to remit the remainder, if any, to the person
or persons entitled to it.  Beneficiary
shall have no liability for any funds which it does not actually receive.


 


6.7                                 Incorporation of Certain Nevada Covenants. 
Covenants Nos. 1, 2 (full replacement value), 3, 4 (at the applicable
Default Rate), 5, 6, 7 (reasonable), 8 and 9 of NRS 107.030, where not in
conflict with the provisions of the Loan Documents, are hereby adopted and made
a part of this Deed of Trust.  Upon any
Event of Default by Trustor hereunder, Beneficiary may (a) declare all sums
secured immediately due and payable without demand or notice or (b) have a
receiver appointed as a matter of right without regard to the sufficiency of
said property or any other security or guaranty and without any showing as
required by NRS §107.100.  All remedies
provided in this Deed of Trust are distinct and cumulative to any other right
or remedy under this Deed of Trust or afforded by law or equity and may be
exercised concurrently, independently or successively.  The sale of said property conducted pursuant
to Covenants Nos. 6, 7 and 8 of NRS §107.030 may be conducted either as to the
whole of said property or in separate parcels and in such order as Trustee may
determine.


 


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


 


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


 


24
















 


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


 


7.3                                 Trustor shall notify Beneficiary promptly in writing
of (i) the occurrence of any default by the landlord under any Ground
Lease and (ii) the receipt by Trustor of any notice claiming the
occurrence of any default by Trustor under any Ground Lease or the occurrence
of 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 shall
also promptly deliver a copy of any such notice to Beneficiary).


 


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


 


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


 


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


 


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


 


7.8                                 Trustor shall exercise any option or right to renew or
extend the term of any Ground Lease at least six months prior to the date of
termination of any such option or right, shall give immediate written notice
thereof to Beneficiary, and shall execute, deliver and record any documents
requested by Beneficiary to evidence the lien of this Deed of Trust on such
extended or renewed lease term.  If
Trustor fails to exercise any such option or right as required herein,
Beneficiary may exercise the option or right as Trustor’s agent and
attorney-in-fact pursuant to this Deed of Trust, or in Beneficiary’s own name
or in the name of and on behalf of a nominee of Beneficiary, as Beneficiary
chooses in its absolute discretion.


 


25
















 


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


 


7.10                           Promptly upon demand by Beneficiary, Trustor shall use
reasonable efforts to obtain from the landlord under any Ground Lease and
furnish to Beneficiary an estoppel certificate of such landlord stating the
date 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 writing
of any request by either party to any Ground Lease for arbitration, appraisal
or other proceedings relating to any Ground Lease and of the institution of any
such proceeding, and shall promptly deliver to Beneficiary a copy of all
determinations 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 own
behalf as an interested party.  Trustor
shall notify Beneficiary promptly in writing of the institution of any legal
proceeding involving obligations under any Ground Lease, and Beneficiary may
intervene in any such legal proceeding and be made a party.  Trustor shall promptly provide Beneficiary
with a copy of any decision rendered in connection with any such proceeding.


 


7.12                           To the extent permitted by law, the price payable by
Trustor 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
include all rents and other amounts paid and other sums advanced by Beneficiary
on behalf of Trustor as the tenant under the Ground Leases.


 


7.13                           In addition to all other Events of Default described
in this Deed of Trust, the occurrence of any of the following shall be an Event
of 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 which
gives the landlord under any Ground Lease a right to terminate such Ground
Lease.


 


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


 


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


 


26
















 


(b)                                 Trustor acknowledges and agrees that, as the
beneficiary 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 reconveyed continuously shall have, whether before or after any default
under any of the Secured Obligations or the taking of any action to enforce any
of Beneficiary’s rights and remedies under this Deed of Trust or any
foreclosure sale hereunder, the complete, unfettered and exclusive right, in
its sole and absolute discretion, to elect (the “365(h) Election”) whether (i)
any Ground Lease that has been rejected under the Bankruptcy Code by the
landlord thereunder (or any trustee therefor) shall be treated as terminated
under 11 U.S.C. § 365(h)(1)(A)(i), or (ii) the rights under such
Ground Lease that are in or appurtenant to the real property, as described in
11 U.S.C. § 365(h)(1)(A)(ii), should be retained pursuant to that
subsection.  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 to
participate in or otherwise in any manner affect the making of, the 365(h)
Election with respect to any Ground Lease, Trustor hereby absolutely assigns
and conveys to Beneficiary any and all such rights, and all of Trustor’s right,
title, and interest therein, which may be used and exercised by Beneficiary
completely, exclusively, and without any restriction whatsoever, in
Beneficiary’s sole and absolute discretion, whether before or after any default
upon any of the Secured Obligations, the taking of any action to enforce any of
Beneficiary’s rights and remedies under this Deed of Trust, or any foreclosure
sale hereunder.  Trustor hereby
unconditionally and irrevocably appoints Beneficiary as its attorney-in-fact to
exercise Trustor’s right, if any, to make, or participate in or otherwise in
any matter affect the making of, the 365(h) Election with respect to any Ground
Lease.  Trustor shall not in any manner
impede or interfere with any action taken by Beneficiary and, at the request of
Beneficiary, Trustor shall take or join in the taking of any action to make, or
participate in or otherwise in any manner affect the making of, the 365(h)
Election with respect to any Ground Lease, in such manner as Beneficiary
determines in its sole and absolute discretion. 
Unless and until instructed to do so by Beneficiary (as determined by
Beneficiary in its sole and absolute discretion), Trustor shall not take any
action to make, or participate in or otherwise in any manner affect the making
of, the 365(h) Election with respect to any Ground Lease, including in
particular, but without limitation, any election to treat any Ground Lease as
terminated.  Beneficiary shall have no
obligation whatsoever to Trustor or any other person or entity in connection
with the making of the 365(h) Election with respect to any Ground Lease or any
instruction by Beneficiary to Trustor given, withheld or delayed in respect
thereof, nor shall Beneficiary have any liability to Trustor or any other
person or entity arising from any of the same.


 


(c)                                  As security for the Secured Obligations, Trustor
hereby irrevocably assigns to Beneficiary all of Trustor’s rights to damages
arising from any rejection by any landlord (or any trustee thereof) of any
Ground Lease under the Bankruptcy Code. 
Beneficiary and Trustor shall proceed jointly or in the name of Trustor
in respect of any claim or proceeding relating to the rejection of any Ground
Lease, including without limitation the right to file and prosecute any proofs
of claim, complaints, motions and other documents in any case in respect of
such landlord under the Bankruptcy Code. 
This assignment shall continue in effect until all of the Secured
Obligations have been satisfied in full. 
Any amounts received by Beneficiary or Trustor as damages arising from
the rejection of any Ground Lease as aforesaid shall be applied


 


27
















 


first to all costs reasonably incurred by Beneficiary
(including attorneys’ fees) in connection with this subsection (c) and then in
accordance with other applicable provisions of this Deed of Trust.


 


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


 


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


 


(f)                                    Trustor shall immediately notify Beneficiary orally
upon learning of any filing by or against any landlord of a petition under the
Bankruptcy Code.  Trustor shall
thereafter promptly give written notice of such filing to Beneficiary, setting
forth any information available to Trustor with respect to the date of such
filing, the court in which such petition was filed, and the relief sought
therein.  Trustor shall promptly deliver
to Beneficiary all notices, pleadings and other documents received by Trustor
in connection with any such proceeding.


 


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


 


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


 


7.17                           Trustor hereby represents and warrants to Beneficiary
as follows:


 


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


 


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


 


28
















 


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


 


8.                                       Suretyship Provisions. 
The following provisions shall apply to the extent that all or any
portion of the Secured Obligations now or hereafter constitute obligations of
person(s) (for the purposes of this Article 8, each a “Obligated Party” and
collectively, “Obligated Parties”) other than, or in addition to, Trustor:


 


8.1                                 Conditions to Exercise of Rights. 
Trustor hereby waives any right it may now or hereafter have to require
Beneficiary, as a condition to the exercise of any remedy or other right
against Trustor hereunder or under any other document executed by Trustor in
connection with any Secured Obligation, 
to proceed against any Obligated Party or other person, or against any
other collateral assigned to Beneficiary by Trustor or any Obligated Party or
other person,  to pursue any other right
or remedy in Beneficiary’s power,  to
give notice of the time, place or terms of any public or private sale of real
or personal property collateral assigned to Beneficiary by any Obligated Party
or other person (other than Trustor), or otherwise to comply with Section 9504
of the Nevada Uniform Commercial Code (as modified or recodified from time to
time) with respect to any such personal property collateral, or  to make or give (except as otherwise
expressly provided in the Loan Documents) any presentment, demand, protest,
notice of dishonor, notice of protest or other demand or notice of any kind in
connection with any Secured Obligation or any collateral (other than the
Property) for any Secured Obligation.


 


8.2                                 Defenses.  Trustor
hereby waives any defense it may now or hereafter have that relates to:  any disability or other defense of either of
any Obligated Party or other person;  the
cessation, from any cause other than full performance, of the obligations of
any Obligated Party or other person;  the
application of the proceeds of any Secured Obligation, by any Obligated Party
or other person, for purposes other than the purposes represented to Trustor by
any Obligated Party or otherwise intended or understood by Trustor or any
Obligated Party;  any act or omission by
Beneficiary which directly or indirectly results in or contributes to the
release of any Obligated Party or other person or any collateral for any
Secured Obligation;  the unenforceability
or invalidity of any collateral assignment (other than this Deed of Trust) or
guaranty with respect to any Secured Obligation, or the lack of perfection or
continuing perfection or lack of priority of any lien (other than the lien
hereof) which secures any Secured Obligation; 
any failure of Beneficiary to marshal assets in favor of Trustor or any other
person;  any modification of any Secured
Obligation, including any renewal, extension, acceleration or increase in
interest rate;  any election of remedies
by Beneficiary that impairs any subrogation or other right of Trustor to
proceed against any Obligated Party or other person, including any loss of
rights resulting from anti-deficiency laws relating to nonjudicial foreclosures
of real property or other laws limiting, qualifying or discharging obligations
or remedies; any law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more
burdensome than that of the principal or which reduces a surety’s or
guarantor’s obligation in proportion to the principal obligation;  any failure of Beneficiary to file or enforce
a claim in any bankruptcy or other proceeding with respect to any person;  the election by Beneficiary, in any
bankruptcy proceeding of any person, of the application or non-application of
Section 1111(b)(2) of the United States Bankruptcy Code;  any extension of credit or the grant of any
lien under Section 364 of the United States Bankruptcy Code;  any use of cash collateral


 


29
















 


under Section 363 of
the United States Bankruptcy Code; or 
any agreement or stipulation with respect to the provision of adequate
protection in any bankruptcy proceeding of any person.


 


8.3                                 Without limiting the generality of the foregoing:


 


8.3.1                        Trustor waives all rights and defenses that Trustor
may have (a) because any Secured Obligation is secured by any real property
other than the Property (“Other Real Property”) or (b) because any Secured
Obligation which is an obligation of a person or persons other than Trustor is
secured by the Property.  This means,
among other things:


 


8.3.2                        Beneficiary may foreclose hereunder or exercise any
other remedy or right against Trustor hereunder (or under any other document
executed by Trustor in connection with any Secured Obligation) without first
foreclosing on any Other Real Property or personal property collateral pledged
by an Obligated Party (or by any other person) with respect to any Secured
Obligation.


 


8.3.3                        If Beneficiary forecloses on the Property or on any
Other Real Property pledged by an Obligated Party (or by any other person) with
respect to any Secured Obligation:


 


(a)                                  The amount of such Secured Obligation may be reduced
only by the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price.


 


(b)                                 Beneficiary may foreclose hereunder or exercise any
other remedy or right against Trustor hereunder (or under any other document
executed by Trustor in connection with any Secured Obligation) even if
Beneficiary, by foreclosing on any such real property, has destroyed any right
Trustor may have to collect from Obligated Party (or from any other person who
pledged any such collateral and/or was liable for such Secured Obligation).


 


This is an unconditional
and irrevocable waiver of any rights and defenses Trustor may have because any
obligation secured hereby is also secured by Other Real Property and/or because
any Secured Obligation which is an obligation of a person or persons other than
Trustor is secured by the Property.


 


Trustor
waives all rights and defenses arising out of an election of remedies by
Beneficiary, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a Secured Obligation, has destroyed
Trustor’s rights of subrogation and reimbursement against the principal.


 


8.4                                 Subrogation.  Until no part
of any Commitment under the Credit Agreement remains outstanding and all of the
Secured Obligations have been indefeasibly paid and performed in full, Trustor
hereby waives  any right of subrogation
which Trustor may now or hereafter have against any Obligated Party that
relates to any Secured Obligation,  any
right to enforce any remedy Trustor may now or hereafter have (in its own
right, or by reason of succession to rights of Beneficiary) against any
Obligated Party that relates to any Secured Obligation (including without
limitation any right of reimbursement, indemnity or contribution),


 


30
















 


and  any right to participate in any collateral
now or hereafter assigned to Beneficiary with respect to any Secured
Obligation.  Trustor further agrees that,
if and to the extent that any waiver set forth in this paragraph is ever held
to be unenforceable, all such rights of subrogation, enforcement and participation
shall be junior and subordinate to the right of Beneficiary to obtain payment
and performance of the Secured Obligations and to all rights of Beneficiary in
and to any property which now or hereafter serves as collateral security for
any Secured Obligation.


 


8.5                                 Obligated Party Information.  Trustor warrants and agrees:  that Trustor has not relied, and will not
rely, on any representations or warranties by Beneficiary to Trustor with
respect to the creditworthiness of any Obligated Party or the prospects of
repayment of any Secured Obligation from sources other than the Property;  that Trustor has established and/or will
establish adequate means of obtaining from any Obligated Party on a continuing
basis financial and other information pertaining to the business operations, if
any, and financial condition of each Obligated Party;  that Trustor assumes full responsibility for
keeping informed with respect to each Obligated Party’s business operations, if
any, and financial condition;  that
Beneficiary shall have no duty to disclose or report to Trustor any information
now or hereafter known to Beneficiary with respect to any Obligated Party,
including without limitation information relating to any Obligated Party’s
business operations or financial condition; and that Trustor is familiar with the
terms and conditions of the Loan Documents and consents to all provisions
thereof.


 


8.6                                 Other Rights of Sureties. 
Trustor hereby waives all other rights it may now or hereafter have,
whether or not similar to any of the foregoing, by reason of laws of the State
of Nevada pertaining to sureties.


 


8.7                                 Duration and Reinstatement of Lien. 
The lien of this Deed of Trust shall continue until the expiration of
all periods within which any amount at any time paid on account of the Secured
Obligations may be required to be restored or returned by Beneficiary upon the
bankruptcy, insolvency or reorganization of any Obligated Party, any guarantor
or any other person; and Beneficiary’s rights hereunder shall be reinstated and
revived, and the enforceability of this Deed of Trust shall continue, with
respect to any such amount which Beneficiary is required to restore or return
in connection with any such bankruptcy, insolvency or reorganization.


 


8.8                                 Subordination.  Except as
expressly provided in the Credit Agreement, until all of the Secured
Obligations have been fully paid and performed, 
Trustor hereby agrees that all existing and future indebtedness and
other obligations of each Obligated Party to Trustor (collectively, the “Subordinated
Debt”) shall be and are hereby subordinated to all Secured Obligations which
constitute obligations of the applicable Obligated Party, and the payment
thereof is hereby deferred in right of payment to the prior payment and
performance of all such Secured Obligations; 
Trustor shall not collect or receive any cash or non-cash payments on
any Subordinated Debt or transfer all or any portion of the Subordinated Debt;
and  in the event that, notwithstanding
the foregoing, any payment by, or distribution of assets of, any Obligated
Party with respect to any Subordinated Debt is received by Trustor, such
payment or distribution shall be held in trust and immediately paid over to
Beneficiary, is hereby assigned to Beneficiary as security for the Secured
Obligations, and shall be held by Beneficiary in an interest bearing account
until all Secured Obligations have been fully paid and performed.


 


31
















 


8.9                                 Lawfulness and Reasonableness. 
Trustor warrants that all of the waivers in this Deed of Trust are made
with full knowledge of their significance, and of the fact that events giving
rise to any defense or other benefit waived by Trustor may destroy or impair
rights which Trustor would otherwise have against Beneficiary, Obligated
Parties and other persons, or against collateral.  Trustor agrees that all such waivers are
reasonable under the circumstances and further agrees that, if any such waiver
is determined (by a court of competent jurisdiction) to be contrary to any law
or public policy, such waiver shall be effective to the fullest extent
permitted by law.


 


9.                                       Miscellaneous Provisions.


 


9.1                                 Additional Provisions.  The Loan
Documents fully state all of the terms and conditions of the parties’ agreement
regarding the matters mentioned in or incidental to this Deed of Trust.  The Loan Documents also grant further rights
to Beneficiary and contain further agreements and affirmative and negative
covenants by Trustor which apply to this Deed of Trust and to the Property.


 


9.2                                 No Waiver or Cure.


 


9.2.1                        Each waiver by Beneficiary or Trustee must be in
writing, and no waiver shall be construed as a continuing waiver.  No waiver shall be implied from any delay or
failure by Beneficiary or Trustee to take action on account of any default of
Trustor.  Consent by Beneficiary or
Trustee to any act or omission by Trustor shall not be construed as a consent
to any other or subsequent act or omission or to waive the requirement for
Beneficiary’s or Trustee’s consent to be obtained in any future or other
instance.


 


9.2.2                        If any of the events described below occurs, that
event alone shall not:  cure or waive any
breach, Event of Default or notice of default under this Deed of Trust or
invalidate any act performed pursuant to any such default or notice; or nullify
the effect of any notice of default or sale (unless all Secured Obligations
then due have been paid and performed and all other defaults under the Loan
Documents have been cured); or impair the security of this Deed of Trust; or
prejudice Beneficiary, Trustee or any receiver in the exercise of any right or
remedy afforded any of them under this Deed of Trust; or be construed as an
affirmation by Beneficiary of any tenancy, lease or option, or a subordination
of the lien or security interest of this Deed of Trust.


 


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


 


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


 


(c)                                  Beneficiary receives and applies to any Secured
Obligation proceeds of any Property, including any proceeds of insurance
policies, condemnation awards, or other claims, property or rights assigned to
Beneficiary under Section 5.5.


 


32
















 


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


 


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


 


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


 


9.3                                 Powers of Beneficiary and Trustee.


 


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


 


9.3.2                        If either Beneficiary or any Lender or Trustee
performs any act which it is empowered or authorized to perform under this Deed
of 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 person for the payment and performance of the Secured
Obligations then outstanding, or the lien or security interest of this Deed of
Trust on all or the remainder of the Property for full payment and performance
of all outstanding Secured Obligations. 
The liability of the original Trustor shall not be released or changed
if Beneficiary or any Lender grants any successor in interest to any Borrower
or Trustor any extension of time for payment, or modification of the terms of
payment, of any Secured Obligation. 
Neither Beneficiary nor any Lender shall be required to comply with any
demand by any original Trustor or Borrower that Beneficiary or such Lender
refuse to grant such an extension or modification to, or commence proceedings
against, any such successor in interest


 


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


 


9.3.4                        From time to time, Beneficiary or Trustee may apply to
any court of competent jurisdiction for aid and direction in executing the
trust and enforcing the rights and remedies created under this Deed of
Trust.  Beneficiary or Trustee may from
time to time obtain orders or decrees directing, confirming or approving acts
in executing this trust and enforcing these rights and remedies.


 


9.4                                 Merger.  No merger
shall occur as a result of Beneficiary’s acquiring any other estate in or any
other lien on or security interest in the Property unless Beneficiary consents
to a merger in writing.


 


9.5                                 Applicable Law.  This Deed of
Trust shall be governed by and construed in accordance with the laws of the
State of Nevada.


 


33
















 


9.6                                 Successors in Interest.  The terms,
covenants and conditions of this Deed of Trust shall be binding upon and inure
to the benefit of the heirs, successors and assigns of the parties.  However, this Section 8.6 does
not waive the provisions of Section 6.1.


 


9.7                                 Interpretation.


 


9.7.1                        Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. 
The captions of the sections of this Deed of Trust are for convenience
only 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 limited
to.”


 


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


 


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


 


9.8                                 In-House Counsel Fees.  Whenever
Trustor is obligated to pay or reimburse Beneficiary or any Lender or Trustee
for any attorneys’ fees, those fees shall include the allocated costs for
services of in-house counsel.


 


9.9                                 Waiver of Marshalling.  To the extent
permitted by applicable law, Trustor waives all rights, legal and equitable, it
may now or hereafter have to require marshalling of assets or to require
foreclosure sales of assets in a particular order, including any rights
provided by NRS 100.040 and 100.050, as such Sections may be amended or
recodified from time to time.  Each
successor and assign of Trustor, including any holder of a lien or security
interest subordinate to this Deed of Trust, by acceptance of its interest or
lien or security interest, agrees that it shall be bound by the above waiver,
as if it had given the waiver itself.


 


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


 


9.11                           Notices.  Trustor
hereby requests that a copy of notice of default and notice of sale be mailed
to it at the address set forth below. 
That address is also the mailing address of Trustor as debtor under the
Nevada Uniform Commercial Code, as amended or recodified from time to
time.  Beneficiary’s address given below
is the address for Beneficiary as secured party under the Nevada Uniform
Commercial Code, as amended or recodified from time to time.


 


34
















 


	
  Notices to Trustor:

  	
   

  	
  Herbst Gaming, Inc.

  
	
   

  	
   

  	
  5195 Las Vegas Blvd.

  
	
   

  	
   

  	
  Las Vegas, NV  89119

  
	
   

  	
   

  	
  Attn:  M. Higgins

  
	
   

  	
   

  	
   

  
	
  Notices to Beneficiary:

  	
   

  	
  Bank of America, N.A.

  
	
   

  	
   

  	
  Gaming and Leisure Industries Group

  
	
   

  	
   

  	
  Portfolio Management – CA 9-706-17-54

  
	
   

  	
   

  	
  555 So. Flower Street, 17th Floor

  
	
   

  	
   

  	
  Los Angeles, California  90071

  
	
   

  	
   

  	
  Attention:  Janice Hammond

  
	
   

  	
   

  	
   

  
	
  Notices to Trustee:

  	
   

  	
  PRLAP, Inc.

  
	
   

  	
   

  	
  P.O. Box 2240

  
	
   

  	
   

  	
  Brea, California  92622

  



 


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


 


“Trustor”:


 


E-T-T, INC., 


a Nevada corporation


 


 


	
  By:

  	
  /s/
  Edward Herbst

  	
   

  
	
   

  	
  Edward
  Herbst

  	
   

  



 


35
















 


ACKNOWLEDGEMENT


 


	
  STATE OF Nevada

  	
   

  	
  )

  
	
   

  	
   

  	
  ) ss

  
	
  COUNTY OF Clark

  	
   

  	
  )

  



 


 


This instrument was
acknowledged before me on 6/10, 2004 by Edward Herbst as President of E-T-T,
Inc., a Nevada corporation.


 


 


	
   

  	
  /s/ Janice R. Donelson

  	
   

  
	
   

  	
  (Signature of Notarial Officer)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JANICE R. DONELSON

  	
   

  	
   

  	
   

  
	
  (SEAL)

  	
  Notary Public State of Nevada

  	
   

  	
  (Title and Rank)

  	
   

  
	
   

  	
  No. 99-39315-1

  	
   

  	
   

  	
   

  
	
   

  	
  My appt. exp. Nov. 20, 2007

  	
   

  	
  My commission expires:

  	
  11/20/07

  	
   

  
						



 


36
















 


EXHIBIT “A”


 


(Legal Description of Land)


 


PARCEL I


 


The North Half (N 1/2) of
the Northeast Quarter (NE 1/4) of the Southeast Quarter (SE 1/4) of the
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) in
Section 29, Township 21 South, Range 61 East, M.D.B.&M.


 


EXCEPTING THEREFROM the
North thirty (30) feet and the East Thirty (30) feet together with that
spandrel area at the Northeast corner thereof as conveyed to Clark County for
road and other public purposes by deed recorded December 4, 1995 in Book
951204, Document Nos. 00715 and 00716 of Official Records, Clark County,
Nevada.


 


PARCEL II


 


The South Half (S 1/2) of
the Northeast Quarter (NE 1/4) of the Southeast Quarter (SE 1/4) of the
Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) of
Section 29, Township 21 South, Range 61 East, M.D.B.&M.


 


EXCEPTING THEREFROM the
East thirty (30) feet as conveyed to Clark County for road and other public
purposes by deed recorded September 7, 1995, in Book 950907, as Document
No. 01575, of Official Records, Clark County, Nevada.


 


PARCEL III


 


The Southeast Quarter (SE
1/4) of the Southeast Quarter (SE 1/4) of the Southwest Quarter (SW 1/4) of the
Southwest Quarter (SW 1/4) of Section 29, Township 21 South, Range 61
East, M.D.B.&M.


 


EXCEPTING THEREFROM those
portions conveyed to Clark County by deed recorded February 10, 1994 in
Book 940210, as Document No. 00001 and re-recorded March 6, 1995, in
Book 950306, as Document No. 00903, of Official Records, Clark County,
Nevada.


 


1