Exhibit 10.65


 


	
  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
ENTERPRISES L.L.C., a Nevada limited liability company (“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.


 


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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 Lease dated as of
July 1, 1997 between The Herbst Family Limited Partnership II, as landlord
and Trustor, as tenant (the “Operating Lease”), a memorandum of which was
recorded August 24, 2001, in Book 20010824, Instrument No. 01132 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


 


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


 


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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 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


 


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interest or capital lease prohibit the granting thereon, but only for
so long as the related 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


 


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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


 


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(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.


 


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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


 


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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


 


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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


 


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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.


 


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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.


 


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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 ENTERPRISES
L.L.C.,

a Nevada limited liability company


 


 


	
  By:

  	
  /s/ Edward Herbst

  	
   

  
	
   

  	
  Edward Herbst

  	
   

  



 


35
















 


ACKNOWLEDGEMENT


 


	
  STATE OF Nevada

  	
   

  	
  )

  
	
   

  	
   

  	
  ) ss

  
	
  COUNTY OF Clark

  	
   

  	
  )

  



 


This instrument
was acknowledged before me on
                              ,
2004 by Edward Herbst as Manager of E-T-T Enterprises L.L.C., a Nevada limited
liability company.


 


 


	
   

  	
  /s/ Janice R. Donelson

  	
   

  
	
   

  	
  (Signature of Notarial Officer)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JANICE R. DONELSON

  	
   

  	
   

  	
   

  
	
  (SEAL)

  	
  Notray 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