This instrument prepared by TUNICA
and when recorded mail to: (MISSISSIPPI)
EQUIPMENT ON CASINO BARGES
Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Attn: Douglas L. Wisner, Esq.
(212) 506-2500
DEED OF TRUST AND SECURITY AGREEMENT
Dated as of May 10, 1996
BY AND AMONG
BL DEVELOPMENT CORP.,
a Minnesota corporation,
as Trustor
HANCOCK BANK,
not in its individual capacity,
but solely as Lessor and Trustee pursuant
to the Lease and Trust Agreement,
as Trustor
JAMES R. McILWAIN
an individual,
as Trustee
and
HANCOCK BANK,
not in its individual capacity,
but solely as Lessor and Trustee pursuant
to the Lease and Trust Agreement,
as Beneficiary
and
BA LEASING & CAPITAL CORPORATION, a
California corporation, in its capacity as Agent,
as Beneficiary
*******************************************************************************
THIS INSTRUMENT IS TO BE FILED AND INDEXED IN THE REAL ESTATE RECORDS
OF TUNICA COUNTY, MISSISSIPPI UNDER THE NAME OF BL DEVELOPMENT CORP.
(FEDERAL I.D. NO. 41-1754530) AS "TRUSTOR" AND HANCOCK BANK (FEDERAL I.D.
NO. 640169065) AS "TRUSTOR".
THIS IS A FIXTURE FILING AND THE RECORD OWNER OF THE PROPERTY LOCATED
IN THE COUNTY OF TUNICA, STATE OF MISSISSIPPI IS THE BOARD OF LEVEE
COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA.
THIS INSTRUMENT IS A "CONSTRUCTION MORTGAGE" AS THAT TERM IS DEFINED IN
SECTION 75-9-313 OF THE MISSISSIPPI CODE OF 1972, AS AMENDED, AND SECURES AN
OBLIGATION INCURRED FOR THE CONSTRUCTION OF AN IMPROVEMENT UPON LAND.
INDEXING INSTRUCTIONS:
This instrument affects real and personal property situated, lying and being in
the County of Tunica, State of Mississippi, known as follows:
Sections: 5 and 6
Township: 3 South
Range: 10 West
This instrument secures a line of credit to be used primarily for business,
commercial or agricultural purposes and is entitled to the lien protection
provisions of Section 89-1-49 of the Mississippi Code of 1972, as amended.
TABLE OF CONTENTS
Section Page
ARTICLE I
COVENANTS OF TRUSTOR
1.1 Performance of Port Facility Lease and Operative Documents . . 5
1.2 General Representations, Covenants and Warranties. . . . . . . 5
1.3 Compliance with Legal Requirements . . . . . . . . . . . . . . 6
1.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.5 Insurance/Casualty . . . . . . . . . . . . . . . . . . . . . . 6
1.6 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.7 Care of Trust Estate . . . . . . . . . . . . . . . . . . . . . 6
1.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . 6
1.9 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Further Encumbrance. . . . . . . . . . . . . . . . . . . . . . 7
1.11 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 7
1.12 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.13 Beneficiary's Cure of Trustor' Default . . . . . . . . . . . . 8
1.14 Compliance with Permitted Lien Agreements. . . . . . . . . . . 8
1.15 Use of Levee Board Land. . . . . . . . . . . . . . . . . . . . 8
1.16 Taxes on Beneficiary . . . . . . . . . . . . . . . . . . . . . 9
1.17 Additional Taxes . . . . . . . . . . . . . . . . . . . . . . . 9
1.18 Defense of Actions . . . . . . . . . . . . . . . . . . . . . . 9
1.19 Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.20 Future Advances. . . . . . . . . . . . . . . . . . . . . . . . 9
1.21 Security Agreement and Financing Statements. . . . . . . . . . 9
ARTICLE II
CORPORATE LOAN PROVISIONS
2.1 Interaction with other Operative Documents.. . . . . . . . . . 11
ARTICLE III
DEFAULTS
3.1 Event of Default . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
REMEDIES
4.1 Acceleration of Maturity . . . . . . . . . . . . . . . . . . . 11
4.2 Protective Advances. . . . . . . . . . . . . . . . . . . . . . 11
4.3 Institution of Equity Proceedings. . . . . . . . . . . . . . . 11
4.4 Beneficiary's Power of Enforcement . . . . . . . . . . . . . . 12
4.5 Beneficiary's Right to Enter and Take Possession, Operate
and Apply Income. . . . . . . . . . . . . . . . . . . . . 13
4.6 Purchase by Beneficiary. . . . . . . . . . . . . . . . . . . . 13
4.7 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws . . . . . . . . . . . . . . . . . . . . . 13
4.8 Receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.9 Suits to Protect the Trust Estate. . . . . . . . . . . . . . . 14
4.10 Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . 14
4.11 Deficiencies; Application of Monies by Beneficiary . . . . . . 14
4.12 Delay or Omission, No Waiver . . . . . . . . . . . . . . . . . 15
4.13 No Waiver of One Default to Affect Another . . . . . . . . . . 15
4.14 Discontinuance of Proceedings; Position of Parties Restored. . 15
4.15 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . 16
4.16 Interest After Event of Default. . . . . . . . . . . . . . . . 16
4.17 Foreclosure, Expenses of Litigation. . . . . . . . . . . . . . 16
4.18 Deficiency Judgments . . . . . . . . . . . . . . . . . . . . . 16
4.19 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
5.1 Exercise of Remedies by Trustee. . . . . . . . . . . . . . . . 17
5.2 Rights and Privileges of Trustee . . . . . . . . . . . . . . . 17
5.3 Resignation or Replacement of Trustee. . . . . . . . . . . . . 17
5.4 Authority of Beneficiary . . . . . . . . . . . . . . . . . . . 18
5.5 Effect of Appointment of Successor Trustee . . . . . . . . . . 18
5.6 Confirmation of Transfer and Succession. . . . . . . . . . . . 18
5.7 Ratification . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.8 Exculpation. . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.9 Endorsement and Execution of Documents . . . . . . . . . . . . 18
5.10 Multiple Trustees. . . . . . . . . . . . . . . . . . . . . . . 18
5.11 Terms of Trustee's Acceptance. . . . . . . . . . . . . . . . . 18
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Heirs, Successors and Assigns Included in Parties. . . . . . . 19
6.2 Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . 19
6.3 Addresses for Notices, Etc . . . . . . . . . . . . . . . . . . 19
6.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Invalid Provisions to Affect No Others . . . . . . . . . . . . 20
6.6 Changes and Priority Over Intervening Liens. . . . . . . . . . 21
6.7 Estoppel Certificates. . . . . . . . . . . . . . . . . . . . . 21
6.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 21
6.9 Required Notices . . . . . . . . . . . . . . . . . . . . . . . 21
6.10 Reconveyance . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.11 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . 22
6.12 Late Charges . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.13 Cost of Accounting . . . . . . . . . . . . . . . . . . . . . . 22
6.14 Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . 22
6.15 Corrections. . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.16 Statute of Limitations . . . . . . . . . . . . . . . . . . . . 22
6.17 Joint and Several Liability. . . . . . . . . . . . . . . . . . 23
6.18 Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.19 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.20 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 23
6.21 Limitation of Liability. . . . . . . . . . . . . . . . . . . . 23
ARTICLE VII
POWER OF ATTORNEY
7.1 Grant of Power . . . . . . . . . . . . . . . . . . . . . . . . 23
Schedule A Legal Description
Schedule B Equipment
Appendix 1 - Definitions
DEED OF TRUST AND SECURITY
AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT (hereinafter called "Deed of
Trust") is made as of May 10, 1996, by BL DEVELOPMENT CORP., a Minnesota
corporation, whose address is 13705 First Avenue North, Plymouth, Minnesota
55441-5451 and HANCOCK BANK, not in its individual capacity, but solely in its
capacity as Lessor and Trustee pursuant to the Lease and Trust Agreement, whose
address is One Hancock Plaza, Gulfport, Mississippi 39501 (Hancock Bank,
together with BL Development Corp., collectively, as "Trustor"), to JAMES R.
McILWAIN, an individual, whose address is c/o Hancock Bank, One Hancock Plaza,
Gulfport, Mississippi 39501 ("Trustee"), HANCOCK BANK, not in its individual
capacity, but solely in its capacity as Lessor and Trustee pursuant to the Lease
and Trust Agreement, whose address is One Hancock Plaza, Gulfport, Mississippi
39501 and BA LEASING & CAPITAL CORPORATION, a California corporation, as Agent
for the benefit of the Lenders pursuant to the Loan Agreement, whose address is
Four Embarcadero Center, Suite 1200, San Francisco, California 94111 (together
with Hancock Bank, collectively the "Beneficiary").
DEFINITIONS - For all purposes hereof, the capitalized terms used herein
and not otherwise defined shall have the meanings assigned thereto in Appendix 1
annexed hereto. As used in this Deed of Trust, the following terms have the
meanings hereinafter set forth:
"Affiliate" shall have the meaning set forth in Appendix 1.
"Bankruptcy" means, with respect to any Person, that such Person is or
becomes bankrupt or insolvent or: (a) is the subject of any order for relief
under any Bankruptcy Law; (b) commences a voluntary proceeding under any
Bankruptcy Law; (c) consents to the entry of an order for relief in an
involuntary proceeding under any Bankruptcy Law; (d) consents to the appointment
of, or taking possession by, any Receiver; (e) makes any assignment for the
benefit of creditors; (f) is unable or fails, or admits in writing, its
inability to pay its debts as such debts become due; (g) is the subject of any
involuntary proceeding under any Bankruptcy Law or involuntary appointment of a
Receiver, and such involuntary proceeding or appointment is not dismissed and
terminated within 90 days; (h) is the subject of any other proceeding or relief
similar to any of the foregoing under any law; (i) is the subject of a warrant
of attachment, execution, or similar process with respect to such Person or any
substantial part of such Person's property, which warrant or similar process
remains in effect for sixty days without having been bonded or discharged; or
otherwise ceases to do business as a going concern.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C.
Section 101 et seq.
"Bankruptcy Law" means Title 11, United States Code, and any other state or
federal insolvency, reorganization, moratorium or similar law for the relief of
debtors.
"Beneficiary" shall have the meaning provided for in the preamble.
"Business Day" shall have the meaning set forth in Appendix 1.
"Casino Barges" means collectively, the following vessels: Diamond
Lakes I (Official No. 1029587), Diamond Lakes II (Official No. 1029588),
Diamond Lakes III (Official No. 1029589), Cape Cod (Official No. 1039646)
and St. Clair (Official No. 1039647).
"Casualty" shall have the meaning set forth in Appendix 1.
"Casualty Recoveries" shall have the meaning set forth in Appendix 1.
"Environmental Law" shall have the meaning set forth in Appendix 1.
"Equipment" shall mean each item listed on Schedule B attached hereto and
incorporated herein by reference, together with any substitutions therefor,
replacements thereof and additions thereto from time to time pursuant to the
Operative Documents.
"Event of Default" shall have the meaning set forth in Section 3.1
hereof.
"Gaming Control Act" means the Mississippi Gaming Control Act, Miss.
Code Ann. 75-76-1, et seq., as from time to time amended, or any
successor provision of law, and the regulations promulgated thereunder,
including the Mississippi Gaming Commission Regulations.
"Governmental Authority" shall have the meaning set forth in
Appendix 1.
"Insolvent" means with respect to any person or entity, that such person or
entity shall be deemed to be insolvent if he or it is unable to pay his or its
debts as they become due and/or if the fair market value of his or its assets
does not exceed his or its aggregate liabilities.
"Legal Requirements" means all applicable restrictive covenants, applicable
zoning and subdivision ordinances and building codes, all applicable health and
environmental laws and regulations, all applicable gaming laws and regulations,
and all other applicable laws, ordinances, rules, regulations, judicial
decisions, administrative orders, and other requirements of any Governmental
Authority having jurisdiction over Trustor, all or any portion of the Trust
Estate and/or any Affiliate of Trustor, in effect either at the time of
execution of this Deed of Trust or at any time during the term hereof.
"Lenders" shall have the meaning set forth in Appendix 1.
"Levee Board Consent" means that certain agreement dated May 10, 1996,
between Port Facility Lessor and BA Leasing & Capital Corporation, as Agent.
"Levee Board Land" means the real property situated in the County of
Tunica, State of Mississippi, more specifically described in Schedule A attached
hereto and incorporated herein by reference, including any after acquired title
thereto.
"Lien" shall have the meaning set forth in Appendix 1.
"Loan Agreement" means the loan agreement, dated as of the date hereof,
among Hancock Bank, as borrower, and the Lenders.
"Non-Casualty Recoveries" shall have the meaning set forth in Appendix
1.
"Obligations" shall mean all obligations (monetary or otherwise) of Trustor
under the Operative Documents.
"Operative Documents" shall have the meaning set forth in Appendix 1.
"Overdue Rate" shall have the meaning set forth in Appendix 1.
"Participation Agreement" means that certain Participation Agreement, dated
as of the date hereof, among BL Development Corp., as Lessee and Construction
Agent; Grand Casinos, Inc. and certain of its subsidiaries, as Guarantors;
Hancock Bank, as Lessor and Trustee; the Lenders, Co-Agents and Lead Manager
identified therein and BA Leasing & Capital Corporation, as Arranger and Agent.
"Permitted Liens" shall have the meaning set forth in Appendix 1.
"Person" shall have the meaning set forth in Appendix 1.
"Port Facility Lease" means all of BL Development Corp.'s estate, right,
title and interest in, to and under that certain Port Facility Lease Agreement,
dated as of December 29, 1993, as amended, by and between Port Facility Lessor
and BL Development Corp., by which Port Facility Lessor has leased to BL
Development Corp. the Levee Board Land upon which the Casino Barges shall be
located, as such lease may be amended from time to time, including that certain
First Amendment to Lease effective as of November 30, 1995. A Memorandum of
Lease with respect to the Port Facility Lease was recorded in the Office of the
Chancery Clerk of Tunica County, Mississippi in Book E-5 at Page 467.
"Port Facility Lease Damage Claims" means all of BL Development Corp.'s
claims and rights to the payment of damages solely with respect to the Trust
Estate that may arise from Port Facility Lessor's failure to perform under the
Port Facility Lease, or rejection of the Port Facility Lease under any
Bankruptcy Law.
"Port Facility Lessor" means the Board of Levee Commissioners for the
Yazoo-Mississippi Delta.
"Proceeds" has the meaning assigned to it under the UCC and, in any
event, shall include but not be limited to all Casualty Recoveries and
Non-Casualty Recoveries and (i) any and all proceeds of any insurance
(including, without limitation property casualty and title insurance),
indemnity, warranty or guaranty payable from time to time with respect to any of
the Trust Estate; (ii) any and all proceeds in the form of accounts (as such
term is defined in the UCC), security deposits, tax escrows (if any), down
payments (to the extent the same may be pledged under applicable law),
collections, contract rights, documents, instruments, chattel paper, liens and
security instruments, guaranties or general intangibles relating in whole or in
part to the Trust Estate and all rights and remedies of whatever kind or nature
Trustor may hold or acquire for the purpose of securing or enforcing any
obligation due Trustor thereunder; (iii) any and all payments in any form
whatsoever made or due and payable from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Trust Estate by any Governmental Authority; and (iv) any and all
other amounts from time to time paid or payable in connection with any of the
Trust Estate; provided, however, that Trustor is not authorized to dispose of
any of the Trust Estate.
"Receiver" means, with respect to any Person (including Trustor), any
receiver, trustee, custodian, debtor in possession, liquidator, sequestrator,
administrator, conservator, or other successor appointed (whether by a court or
otherwise) pursuant to any creditor's exercise of remedies against such Person,
or pursuant to a Bankruptcy of such Person, or for purposes of reorganization or
liquidation, or otherwise for the benefit of such Person's creditors, or under
any similar circumstances, or otherwise having similar powers over such Person
or its property, whether such Receiver acts on an interim, temporary, or final
basis and whether such appointment applies to all or any significant portion of
such Person's assets or property, including or not including any of the Trust
Estate.
"365(h) Election" means BL Development Corp.'s election to treat the Port
Facility Lease, as terminated under 365(h) of the Bankruptcy Code or any
similar Bankruptcy Law, or any comparable right provided under any other
Bankruptcy Law, together with all rights, remedies and privileges related
thereto.
"Trustee" shall have the meaning provided for in the preamble.
"Trustor" shall have the meaning provided for in the preamble.
"Trust Estate" means all of the property described in Granting Clauses (A)
through (F) below, inclusive, and each item of property therein described.
"UCC" means the Uniform Commercial Code in effect in the State of
Mississippi from time to time.
WITNESSETH:
IN CONSIDERATION OF TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION;
THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED AND FOR THE PURPOSE
OF SECURING as a Lien in favor of Beneficiary (1) the due and punctual payment
of the Obligations the last installment of which is due on March 30, 2002; (2)
the performance of each covenant and agreement of Trustor contained herein, and
in the Operative Documents; (3) the satisfaction of those terms and conditions
contained herein applicable to Trustor or within Trustor's control; (4) the
payment of such additional loans or advances as hereafter may be made for the
benefit of Trustor, or its successors or assigns, it being agreed that such
additional loans or advances, together with interest at the Overdue Rate, shall
be automatically secured hereby unless such a note or instrument evidencing such
advances specifically recites that it is not intended to be secured hereby and
(5) the payment of all sums expended or advanced by Beneficiary or the Lenders
under or pursuant to the terms hereof or to protect the security hereof,
together with interest thereon as herein provided, Trustor in consideration of
the premises, and for the purposes aforesaid, does hereby BARGAIN, CONVEY,
WARRANT, HYPOTHECATE, TRANSFER AND ASSIGN UNTO THE TRUSTEE IN TRUST FOR THE
BENEFIT OF BENEFICIARY:
(A) The Equipment,
(B) TOGETHER WITH BL Development Corp.'s right, title and interest as
lessee under the Port Facility Lease to the extent that the Equipment is deemed
to be a part of such leasehold estate, and then solely with respect to the
deemed leasehold interest in the Equipment under the Port Facility Lease,
(C) TOGETHER WITH (i) all the estate, right, title and interest of Trustor
of, in and to all judgments and decrees, insurance proceeds, awards of damages
and settlements hereafter made resulting from condemnation proceedings or the
taking of any of the property described in Granting Clauses (A) and (B) hereof
or any part thereof under the power of eminent domain, or for any damage
(whether caused by such taking or otherwise) to the property described in
Granting Clauses (A) or (B) hereof or any part thereof, and Beneficiary is
hereby authorized to collect and receive said awards and proceeds and to give
proper receipts and acquittance therefor, and (subject to the terms hereof) to
apply the same toward the payment of the indebtedness and other sums secured
hereby, notwithstanding the fact that the amount owing thereon may not then be
due and payable; (ii) all proceeds of any sales or other dispositions of the
property or rights described in Granting Clauses (A) or (B) hereof or any part
thereof whether voluntary or involuntary, provided, however, that the foregoing
shall not be deemed to permit such sales, transfers, or other dispositions
except as specifically permitted herein; (iii) whether arising from any
voluntary or involuntary disposition of the property described in Granting
Clauses (A) or (B), all Proceeds, products, replacements, additions,
substitutions, renewals and accessions, remainders, reversions and
after-acquired interest in, of and to such property and (iv) all products,
accessions, rents, issues, profits, returns, income and proceeds and Cash
Collateral (as defined in the Bankruptcy Code) of and from the Equipment or any
of the property described in Granting Clauses (A) or (B) hereof or any part
thereof,
(D) TOGETHER WITH all of Trustor's right, title and interest in and to any
and all maps, plans, specifications, surveys, studies, tests, reports, data and
drawings relating to the development of the Trust Estate, including, without
limitation, all marketing plans, feasibility studies, soils tests, design
contracts and all contracts and agreements of Trustor relating thereto
including, without limitation, architectural, structural, mechanical and
engineering plans and specifications, studies, data and drawings prepared for or
relating to the development of the Trust Estate,
(E) TOGETHER WITH all of Trustor's right, title, and interest in and to, to
the extent assignable, any and all licenses, permits, variances, special
permits, franchises, certificates, rulings, certifications, validations,
exemptions, filings, registrations, authorizations, consents, approvals,
waivers, orders, rights and agreements (including options, option rights and
contract rights) now or hereafter obtained by Trustor from any Governmental
Authority having or claiming jurisdiction over any element of the Trust Estate
or providing access thereto, or the operation of any business on, at, or from
the Trustee, and
(F) TOGETHER WITH (i) Trustor' rights, if any, further to assign, sell,
encumber or otherwise transfer or dispose of the property described in Granting
Clauses (A) through (E) inclusive, above, for debt or otherwise.
Trustor, for itself and its successors and assigns, covenants and agrees to
and with the Trustee that, at the time or times of the execution of and delivery
of these presents or any instrument of further assurance with respect thereto,
Trustor has good right, full power and lawful authority to assign, grant,
convey, warrant, transfer, bargain or sell its interest in the Trust Estate in
the manner and form as aforesaid, and that the same are free and clear of all
liens and encumbrances whatsoever, except for Permitted Liens and Trustor shall
warrant and forever defend the above-bargained property in the quiet and
peaceable possession of the Trustee and its successors and assigns against all
and every person or persons lawfully or otherwise claiming or to claim the whole
or any part thereof, except for Permitted Liens. Trustor agrees that any greater
title to the Trust Estate hereafter acquired by Trustor during the term hereof
shall be automatically subject hereto.
ARTICLE I
COVENANTS OF TRUSTOR
The Beneficiary, the Agent and the Lenders have been induced to enter into
the Participation Agreement, and each of the other Operative Documents, pursuant
to which Advances shall be made, on the basis of the following material
covenants, all agreed to by Trustor:
1.1 Performance of Port Facility Lease and Operative Documents. Trustor
shall perform, observe and comply with each and every provision hereof, and with
each and every provision contained in the Port Facility Lease and the Operative
Documents, and shall promptly pay to Beneficiary, when payment shall become due,
the principal with interest thereon and all other sums required to be paid by
Trustor under this Deed of Trust and the Operative Documents.
1.2 General Representations, Covenants and Warranties. BL Development Corp.
represents, covenants and warrants that: (a) it has good and marketable title to
the Casino Barges and the Equipment; (b) it has good and marketable leasehold
title to the Levee Board Land pursuant to the Port Facility Lease; (c) except as
limited by the foregoing subparagraph 1.2(b), BL Development Corp. has good and
marketable title to the Trust Estate, free and clear of all encumbrances except
Permitted Liens, and has the right to hold, occupy and enjoy its interest in the
Trust Estate, and has good right, full power and lawful authority to mortgage
and pledge the same as provided herein and Beneficiary may at all times
peaceably and quietly enter upon, hold, occupy and enjoy the entire Trust Estate
in accordance with the terms hereof and pursuant to the terms of the Levee Board
Consent; (d) neither BL Development Corp. nor any Affiliate thereof is Insolvent
and no bankruptcy or insolvency proceedings are pending or contemplated by or,
to the best of BL Development Corp.'s knowledge, against BL Development or any
Affiliate thereof; (e) the Levee Board Land has frontage on, and direct access
for ingress and egress to dedicated street(s); (f) BL Development shall at all
times conduct and operate the Trust Estate in a manner so as not to lose the
right to conduct gaming activities at the Casino Barges; (g) no material part of
the Trust Estate has been damaged, destroyed, condemned or abandoned; and (h)
each of the representations and warranties contained in the Port Facility Lease
and the Operative Documents to which BL Development Corp. is a party are true
and correct in all material respects and are hereby incorporated herein by
reference.
1.3 Compliance with Legal Requirements. BL Development Corp. shall
promptly, fully, and faithfully comply with all Legal Requirements and shall
cause all portions of the Trust Estate and its use and occupancy to fully comply
with Legal Requirements at all times, whether or not such compliance requires
work or remedial measures that are ordinary or extraordinary, foreseen or
unforeseen, structural or nonstructural, or that interfere with the use or
enjoyment of the Trust Estate.
1.4 Taxes. BL Development Corp. shall not suffer to exist, permit or
initiate the joint assessment of the real and personal property, or any other
procedure whereby the lien of the real property taxes and the lien of the
personal property taxes shall be assessed, levied or charged to the Levee Board
Land as a single lien, except as may be required by law, except for Permitted
Liens. In the event of the passage of any law deducting from the value of real
property for the purposes of taxation any lien thereon, or changing in any way
the taxation of deeds of trust or obligations secured thereby for state or local
purposes, or the manner of collecting such taxes and imposing a tax, either
directly or indirectly, on this Deed of Trust, BL Development Corp. shall pay
all such taxes.
1.5 Insurance/Casualty.
(a) BL Development Corp. shall at its sole expense obtain for, deliver to,
assign and maintain for the benefit of Beneficiary, during the term of this Deed
of Trust, insurance policies insuring the Trust Estate and liability insurance
policies, all in accordance with the requirements set forth in the Operative
Documents. BL Development Corp. shall pay promptly when due any premiums on such
insurance policies and on any renewals thereof. In the event of the foreclosure
of this Deed of Trust or any other transfer of title to the Trust Estate in
extinguishment of the indebtedness and other sums secured hereby, all right,
title and interest of BL Development Corp. in and to all insurance policies,
following the occurrence of such foreclosure or transfer, shall pass to the
purchaser or grantee. BL Development Corp. shall at all times, at its sole
expense, comply with all insurance requirements set forth in the Port Facility
Lease.
(b) Any insurance proceeds or other Casualty Recoveries shall be governed
by and disbursed in accordance with the terms of the Operative Documents.
1.6 Condemnation. In the event that any Levee Board Land is condemned
(whether by one or successive condemnation proceedings), proceeds of such
condemnation relating to the Trust Estate shall be applied in accordance with
the provisions of the Operative Documents.
1.7 Care of Trust Estate.
BL Development Corp. shall preserve and maintain the Trust Estate in good
condition and repair, and BL Development Corp. shall not permit, commit or
suffer to exist any waste, impairment or deterioration of the Trust Estate or of
any part thereof that in any manner materially impairs Beneficiary's security
hereunder and shall not take any action which will increase the risk of fire or
other hazard to the Trust Estate or to any part thereof.
1.8 Environmental Laws.
(a) BL Development Corp. shall comply with all Environmental Laws.
If BL Development Corp. fails to do so, then Beneficiary may cause the
Trust Estate to so comply and BL Development Corp. shall indemnify
Beneficiary with respect to any expenditures that Beneficiary incurs in
doing so. This shall not limit any other rights or remedies available to
Beneficiary.
(b) BL Development Corp. shall notify Beneficiary of all
Environmental Violations relating to the Trust Estate in accordance with
the terms of the Participation Agreement.
1.9 Leases.
(a) BL Development Corp. shall not enter into any new leases of all or any
portion of the Trust Estate or any modifications, assignments or amendments of
the Port Facility Lease except in accordance with the terms and conditions of
Section 5.19 of the Participation Agreement.
(b) No default now exists under the Port Facility Lease. No event has
occurred that, with the giving of notice or the passage of time or both, would
constitute such a default or would entitle BL Development Corp., as applicable,
or any other party under the Port Facility Lease to cancel the same or otherwise
avoid its obligations.
(c) BL Development Corp. shall pay, when due and payable, the rentals,
additional rentals, and other charges required by, and payable under, the Port
Facility Lease in accordance with the Port Facility Lease.
(d) BL Development Corp. shall perform and observe all terms,
covenants, and conditions that BL Development Corp. must perform and
observe under the Port Facility Lease, and do everything necessary to
preserve and to keep unimpaired the Trust Estate.
1.10 Further Encumbrance. BL Development Corp. covenants that at all times
prior to the payment in full of the indebtedness secured hereby, except for
Permitted Liens and/or any other express provision contained in the Operative
Documents to the contrary, BL Development Corp. shall neither make nor suffer to
exist, nor enter into any agreement for, any sale, assignment, exchange,
mortgage, transfer, Lien, hypothecation or encumbrance of all or any part of the
Trust Estate. As used herein, "transfer" includes the actual transfer or other
disposition, whether voluntary or involuntary, by law, or otherwise, except
those transfers specifically permitted herein, provided, however, that
"transfer" shall not include the granting of utility or other beneficial
easements with respect to the Trust Estate which have been or may hereafter be
granted by BL Development Corp. and are reasonably necessary to the operation of
the Trust Estate.
1.11 Further Assurances.
(a) At its sole cost and without expense to the Trustee or the Beneficiary,
Trustor shall do, execute, acknowledge and deliver any and all such further
acts, deeds, conveyances, notices, requests for notices, financing statements,
continuation statements, certificates, assignments, notices of assignments,
agreements, instruments and further assurances, and shall mark any chattel
paper, deliver any chattel paper or instruments to the Beneficiary and take any
other actions that are necessary, desirable or requested by Beneficiary or
Trustee to perfect or continue the perfection and first priority (subject to
Permitted Liens) of Beneficiary's security interest in the Trust Estate, to
protect the Trust Estate against the rights, claims, or interests of third
persons other than holders of Permitted Liens or to effect the purposes of this
Deed of Trust, including the security agreement contained herein, or for the
filing, registering or recording thereof.
(b) BL Development Corp. shall forthwith upon the execution and delivery of
this Deed of Trust, and thereafter from time to time, cause this Deed of Trust
and each instrument of further assurance to be filed, indexed, registered,
recorded, given or delivered in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the title of the Trustee and/or the
Beneficiary to, the Trust Estate.
1.12 Expenses.
(a) BL Development Corp. shall pay when due and payable all costs,
including, without limitation, appraisal fees, recording fees, taxes, brokerage
fees and commissions, abstract fees, title policy fees, escrow fees, attorneys'
and paralegal fees, travel expenses, fees for inspecting architect(s) and
engineer(s) and all other costs and expenses of every character which have been
incurred or which may hereafter be incurred by Beneficiary or any assignee of
Beneficiary in connection with the preparation and execution of loan documents,
amendments thereto or instruments, agreements or documents of further assurance,
the funding of the loan secured hereby, and the enforcement of any Operative
Document; and
(b) BL Development Corp. shall, upon demand by Beneficiary, reimburse
Beneficiary or any assignee of Beneficiary for all such reasonable expenses
which have been incurred or which shall be incurred by it; and
(c) BL Development Corp. shall indemnify Beneficiary with respect to any
transaction or matter in any way connected with any portion of the Trust Estate,
this Deed of Trust, including any occurrence at, in, on, upon or about the Trust
Estate (including any personal injury, loss of life, or property damage), or BL
Development Corp.' use, occupancy, or operation of the Trust Estate, or the
filing or enforcement of any mechanic's lien, or otherwise caused in whole or in
part by any act, omission or negligence occurring on or at the Trust Estate,
including failure to comply with any Legal Requirement or with any requirement
of this Deed of Trust that applies to BL Development Corp., or any Person's
violation of any environmental law or any contamination of any portion of the
Trust Estate in accordance with the applicable provisions of Articles VII and
VIII of the Participation Agreement. BL Development Corp. shall pay all costs
and expenses, including legal costs, that Beneficiary pays or incurs in
connection with any such litigation. Any amount payable under any indemnity in
this Deed of Trust shall be a demand obligation, shall be added to, and become a
part of, the secured obligations under this Deed of Trust, shall be secured by
this Deed of Trust, and shall bear interest at the Overdue Rate. Such indemnity
shall survive any release of this Deed of Trust and any foreclosure.
1.13 Beneficiary's Cure of Trustor's Default. If Trustor defaults in the
payment of any tax, assessment, lien, encumbrance or other imposition, in its
obligation to furnish insurance hereunder, or in the performance or observance
of any other covenant, condition or term of this Deed of Trust or the Operative
Documents, Beneficiary may, but is not obligated to, to preserve its interest in
the Trust Estate, perform or observe the same, and all payments made (whether
such payments are regular or accelerated payments) and costs and expenses
incurred or paid by Beneficiary in connection therewith shall become due and
payable immediately. The amounts so incurred or paid by Beneficiary, together
with interest thereon at the Overdue Rate from the date incurred until paid by
Trustor, shall be added to the indebtedness and secured by the lien of this Deed
of Trust. Beneficiary is hereby empowered to enter and to authorize others to
enter upon the Levee Board Land (to the extent permitted under the Levee Board
Consent) or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to
Trustor or any person in possession holding under Trustor. No exercise of any
rights under this Section by Beneficiary shall cure or waive any Event of
Default or notice of default hereunder or invalidate any act done pursuant
hereto or to any such notice, but shall be cumulative of all other rights and
remedies.
1.14 Compliance with Permitted Lien Agreements. BL Development Corp.
or any Affiliate of BL Development Corp. shall comply with each and every
material obligation contained in any agreement pertaining to a material
Permitted Lien.
1.15 Use of Levee Board Land. BL Development Corp. covenants that
the Trust Estate will be used in accordance with all Applicable Laws and
pursuant to the terms and conditions set forth in the Operative Documents.
1.16 Taxes on Beneficiary. BL Development Corp. shall pay any taxes, other
than income taxes, imposed on the Beneficiary by reason of its ownership of this
Deed of Trust by reason of any payments made pursuant to this Deed of Trust. If
any time any Governmental Authority shall require internal revenue or other
documentary stamps or any other tax on this Deed of Trust, then, if BL
Development Corp. lawfully may pay for such stamps or tax, including interest
and penalties thereon, to or for Beneficiary, BL Development Corp. shall pay,
when payable, for all such stamps and taxes, including interest and penalties
thereon.
1.17 Additional Taxes. BL Development Corp. shall pay any taxes resulting
from the passage of any law deducting from the value of real property, for the
purposes of taxation of any lien thereon, or changing in any way the taxation of
deeds of trust or obligations secured thereby for state or local purposes, or
the manner of collecting such taxes, or the imposition of a tax, either directly
or indirectly, on this Deed of Trust.
1.18 Defense of Actions. BL Development Corp. shall appear in and defend
any action or proceeding affecting or purporting to affect the security hereof
or the rights or powers of Beneficiary or Trustee, and shall pay all costs and
expenses, including costs of title search and insurance or other evidence of
title, preparation of surveys, and reasonable attorneys' fees in any such action
or proceeding in which Beneficiary or Trustee may appear or may be joined as a
party and in any suit brought by Beneficiary based upon or in connection with
this Deed of Trust or the Operative Documents. Nothing contained in this section
shall, however, limit the right of Beneficiary to appear in such action or
proceeding with counsel of its own choice, either on its own behalf or on behalf
of BL Development Corp..
1.19 Affiliates.
(a) Subject to Trust Deed. BL Development Corp. shall cause its Affiliates
in any way involved with the operation of the Trust Estate to observe the
covenants and conditions of this Deed of Trust to the extent necessary to give
the full intended effect to such covenants and conditions and to protect and
preserve the security of Beneficiary hereunder. BL Development Corp. shall, at
Beneficiary's request, cause any such Affiliate to execute and deliver to
Beneficiary or Trustee such further instruments or documents as Beneficiary may
reasonably deem necessary to effectuate the terms of this Section.
(b) Restriction on Use of Subsidiary or Affiliate. BL Development
Corp. shall not use any Affiliate in the operation of the Trust Estate if
such use would in any way impair the security hereunder or circumvent any
covenant or condition of this Deed of Trust or the Operative Documents.
1.20 Future Advances. All funds advanced in the reasonable exercise of
Beneficiary's judgment to protect its security hereunder are deemed to be
obligatory advances and are to be added to the total indebtedness secured by
this Deed of Trust and such indebtedness shall be increased accordingly. All
sums so advanced shall be secured by this Deed of Trust with the same priority
of Lien as the security for the Obligations secured hereunder.
1.21 Security Agreement and Financing Statements. Trustor (as debtor)
hereby grants to Beneficiary (as creditor and secured party) a present and
future security interest in the Equipment, Proceeds of the foregoing comprising
a portion of the Trust Estate and all proceeds of insurance policies and
condemnation awards arising therefrom and all proceeds, products, substitutions,
and accessions therefor and thereto, subject to Beneficiary's rights to treat
such property as real property as herein provided (collectively, the "Personal
Property"). Trustor shall execute any and all documents and writings, including,
without limitation financing statements pursuant to the UCC, as Beneficiary may
reasonably request, to preserve and maintain the priority of the security
interest granted hereby on property which may be deemed subject to the foregoing
security agreement, and shall pay to Beneficiary on demand any expenses incurred
by Beneficiary in connection with the preparation, execution and filing of any
such documents. Trustor hereby authorizes and empowers Beneficiary to execute
and file, on Trustor's behalf, all financing statements and refiling and
continuations thereof as Beneficiary deems necessary or advisable to create,
preserve and protect said security interest. This Deed of Trust shall be deemed
a security agreement as defined in the UCC and the remedies for any violation of
the covenants, terms and conditions of the agreements herein contained shall be
(i) as prescribed herein, or (ii) as available under applicable law, or (iii) as
available under the UCC, all at Beneficiary's sole election. In addition, a
photographic or other reproduction of this Deed of Trust shall be sufficient as
a financing statement for filing wherever filing may be necessary to perfect or
continue the security interest granted herein.
Trustor and Beneficiary agree that the filing of a financing statement in
the records normally having to do with personal property shall never be
construed as in anyway derogating from or impairing the express declaration and
intention of the parties hereto as hereinabove stated that everything used in
connection with the production of income from the Trust Estate and/or adapted
for use therein and/or which is described or reflected in this Deed of Trust is,
and at all times and for all purposes and in all proceedings both legal or
equitable, shall be regarded as part of the real property encumbered by this
Deed of Trust irrespective of whether (i) any such item is physically attached
to the Levee Board Land (although should it be determined that the Equipment is
a part of the Levee Board Land, Beneficiary shall continue to have a first
priority security interest (subject to Permitted Liens) in such Equipment
pursuant to the terms of this Deed of Trust), (ii) serial numbers are used for
the better identification of certain equipment items capable of being thus
identified in a recital contained herein or in any list filed with Beneficiary,
or (iii) any such item is referred to or reflected in any such financing
statement so filed at any time. The mention in any such financing statement of
(1) rights in or to the proceeds of any fire and/or hazard insurance policy, or
(2) any award in eminent domain proceedings for a taking or for loss of value,
Trustor's shall never be construed as in anyway altering any of the rights of
Beneficiary as determined by this Deed of Trust or impugning the priority of
Beneficiary's real property lien granted hereby or by any other recorded
document, but such mention in the financing statement is declared to be for the
protection of Beneficiary in the event any court or judge shall at any time hold
with respect to the matters set forth in the foregoing clauses (1) and (2) that
notice of Beneficiary's priority of interest to be effective against a
particular class of persons, including but not limited to, the federal
government and any subdivisions or entity of the federal government, must be
filed in the UCC records.
(a) Priority. All Personal Property of any nature whatsoever, which is
subject to the provisions of this security agreement, shall be purchased or
obtained by Trustor in its name and free and clear of any lien or encumbrance,
except for Permitted Liens and the lien hereof, for use only in connection with
the terms of the Operative Documents and shall be and at all times remain free
and clear of any lease or similar arrangement, chattel financing, installment
sale agreement, security agreement and any encumbrance of like kind, except
Permitted Liens, so that Beneficiary's security interest shall attach to and
vest in Trustor for the benefit of Beneficiary, with the priority herein
specified, immediately upon the installation or use of the Personal Property at
the Levee Board Land and Trustor warrants and represents that Beneficiary's
security interest in the Personal Property is a validly attached and binding
security interest, properly perfected and prior to all other security interests
therein except as otherwise permitted in this Deed of Trust.
(b) Removal of Trust Estate. None of the Trust Estate shall be
removed from the Trust Estate without Beneficiary's prior written consent.
(c) Change of Name. BL Development Corp. shall not change its corporate or
business name, or do business within the State of Mississippi under any name
other than such name, or any trade name(s) other than those as to which BL
Development Corp. gives prior written notice to Beneficiary of its intent to use
such trade names, or any other business name (if any) specified in the financing
statements delivered to Beneficiary for filing in connection with the execution
hereof, without providing Beneficiary with the additional financing statement(s)
and any other similar documents deemed reasonably necessary by Beneficiary to
assure that its security interest remains perfected and of undiminished priority
in all such Personal Property notwithstanding such name change and without
complying with the terms and conditions of the Operative Documents.
ARTICLE II
CORPORATE LOAN PROVISIONS
2.1 Interaction with other Operative Documents. The terms and provisions of
this Deed of Trust shall be subject and subordinate to the terms of the other
Operative Documents. To the extent that the other Operative Documents provide BL
Development Corp. with a particular cure or notice period, other rights or
establishes any limitations or conditions on Beneficiary's actions with regard
to a particular set of facts, Trustor shall be entitled to only the cure periods
and notice periods provided for in the other Operative Documents, and
Beneficiary shall be subject to the same limitations and conditions. In the
event of any conflict or inconsistency between the provisions of this Deed of
Trust and those of the other Operative Documents, including, without limitation,
any conflicts or inconsistencies in any definitions herein or therein, the
provisions or definitions of the other Operative Documents shall govern.
ARTICLE III
DEFAULTS
3.1 Event of Default. The term "Event of Default," wherever used in this
Deed of Trust, shall have the meaning given to the term "Lease Event of Default"
in Appendix 1.
ARTICLE IV
REMEDIES
4.1 Acceleration of Maturity. Upon the occurrence and during the
continuance of an Event of Default, Beneficiary may (except that such
acceleration shall be automatic if the Event of Default is caused by BL
Development Corp.'s Bankruptcy), declare the Obligations to be due and payable
immediately, and upon such declaration the Obligations shall immediately become
due and payable without demand, presentment, notice or other requirements of any
kind (all of which Trustor waives) notwithstanding anything in this Deed of
Trust or applicable law to the contrary.
4.2 Protective Advances. To the extent permitted by the Port Facility
Lessor and by the terms of the Indenture, if Trustor fails to make any payment
or perform any other obligation under the Port Facility Lease, then without
thereby limiting Beneficiary's other rights or remedies, waiving or releasing
any of Trustor's obligations, or imposing any obligation on Beneficiary,
Beneficiary may, at its option, either advance any amount owing or perform any
or all actions that Beneficiary considers necessary or appropriate to cure such
default. All such advances shall constitute "Protective Advances." No sums
advanced or performance rendered by Beneficiary shall cure, or be deemed a
waiver of any Event of Default.
4.3 Institution of Equity Proceedings. Upon the occurrence and during the
continuance of an Event of Default, Beneficiary may institute an action, suit or
proceeding in equity for specific performance of this Deed of Trust or any
Operative Document, all of which shall be specifically enforceable by injunction
or other equitable remedy. Trustor waives any defense based on laches or any
applicable statute of limitations.
4.4 Beneficiary's Power of Enforcement.
(a) Upon the occurrence and during the continuance of any Event of Default,
Beneficiary may, either with or without entry or taking possession of the Trust
Estate, and without regard to whether or not the indebtedness and other sums
secured hereby shall be due and without prejudice to the right of Beneficiary
thereafter to bring an action or proceeding to foreclose or any other action for
any default existing at the time such earlier action was commenced, proceed by
any appropriate action or proceeding: (1) to enforce payment of the Obligations,
to the extent permitted by law, or the performance of any term hereof or any
other right; (2) to foreclose this Deed of Trust in any manner provided by law
for the foreclosure of mortgages or deeds of trust on real property and to sell,
as an entirety or in separate pieces, the Trust Estate or any portion thereof
pursuant to the laws of the State of Mississippi or under the judgment or decree
of a court or courts of competent jurisdiction, and Beneficiary shall be
entitled to recover in any such proceeding all costs and expenses incident
thereto, including reasonable attorneys' fees in such amount as shall be awarded
by the court; (3) to exercise any or all of the rights and remedies available to
it under the Operative Documents in addition to, and not in limitation of, any
remedies provided for in this Deed of Trust; and (4) to pursue any other remedy
available to it. Beneficiary shall take action either by such proceedings or by
the exercise of its powers with respect to entry or taking possession, or both,
as Beneficiary may determine.
(b) Upon the occurrence and during the continuance of any Event of Default,
Trustee shall, at the request of Beneficiary, sell the Trust Estate conveyed, or
a portion thereof, to satisfy the obligations hereof at public outcry to the
highest bidder for cash. Sale of the property shall be advertised for three
consecutive weeks preceding the sale in a newspaper published in the county
where the Levee Board Land and leaseholds are situated, or if none is so
published, then in some newspaper having a general circulation therein, and by
posting a notice for the same time at the courthouse of the same county. The
notice and advertisement shall disclose the names of the original debtors in
this Deed of Trust. Trustor waives the provisions of Section 89-1-55 of the
Mississippi Code of 1972, as amended, if any, as far as this section restricts
the right of Trustee to offer at sale more than 160 acres at a time, and Trustee
may offer the property herein conveyed as a whole, regardless of how it is
described.
If the Trust Estate is situated in two or more counties, or in two judicial
districts of the same county, Trustee shall have full power to select in which
county, or judicial district, the sale of the property is to be made, newspaper
advertisement published and notice of sale posted, and Trustee's selection shall
be binding upon Trustor but subject to the consent of Beneficiary. Should
Beneficiary be a corporation or an unincorporated association, then any officer
thereof may declare Trustor to be in default and request Trustee to sell the
Trust Estate. Beneficiary shall have the same right to purchase the property at
the foreclosure sale as would a purchaser who is not a party to this Deed of
Trust.
(c) The Trustee shall sell the Trust Estate or any portion thereof at the
time and place fixed by it in said notice, either as a whole or in separate
pieces, and in such order as it may determine, at public auction to the highest
bidder, for cash in lawful money of the United States payable at the time of
sale. The Trustee may, for any cause it deems expedient, postpone the sale of
all or any portion of said property until it shall be completed and, in every
case, notice of postponement shall be given by public announcement thereof at
the time and place last appointed for the sale and from time to time thereafter
the Trustee may postpone such sale by public announcement at the time fixed by
the preceding postponement. Any sale or sales may be held by an agent on behalf
of the Trustee and the appointment need not be recorded. The Trustee shall
execute and deliver to the purchaser its Deed, bill of sale, or other instrument
conveying said property so sold. The recitals in such instrument of conveyance
of any matters or facts shall be conclusive proof of the truthfulness thereof.
Any person, including Beneficiary, may bid at the sale.
(1) After deducting all costs, fees and expenses of the Trustee and of
this Deed of Trust, including, without limitation, costs of evidence of title
and reasonable attorneys' fees of the Trustee or Beneficiary in connection with
a sale as provided in Section 4.4 (b) above, the Trustee shall apply the
proceeds of such sale to payment of all sums expended under the terms hereof not
then repaid, with accrued interest at the rate then in effect pursuant to the
terms of the Loan Agreement, then to the payment of all other sums then secured
hereby and the remainder, if any, to Trustor.
4.5 Beneficiary's Right to Enter and Take Possession, Operate and
Apply Income.
(a) Upon the occurrence and during the continuance of an Event of Default,
Trustor upon demand of Beneficiary, shall forthwith surrender to Beneficiary the
actual possession and, if and to the extent permitted by law and pursuant to the
terms of the Levee Board Consent, Beneficiary itself, or by such officers or
agents as it may appoint, may enter and take possession of all the Trust Estate
and Beneficiary may to the extent permitted by the Indenture, at its option,
succeed to the interests of Trustor under the Port Facility Lease, without
liability for trespass, damages or otherwise, and may exclude Trustor and its
agents and employees wholly therefrom and may have joint access with Trustor to
the books, papers and accounts of Trustor.
(b) If Trustor shall for any reason fail to surrender or deliver the Trust
Estate, or any part thereof after Beneficiary's demand, Beneficiary may obtain a
judgment or decree conferring on Beneficiary or the Trustee the right to
immediate possession or requiring Trustor to deliver immediate possession of all
or part of such property to Beneficiary or the Trustee and Trustor hereby
specifically consents to the entry of such judgment or decree. Trustor shall pay
to Beneficiary or the Trustee, upon demand, all costs and expenses of obtaining
such judgment or decree and reasonable compensation to Beneficiary or the
Trustee, their attorneys and agents, and all such costs, expenses and
compensation shall, until paid, be secured by the lien of this Deed of Trust.
(c) Upon every such entering upon or taking of possession, the Beneficiary
or the Trustee may hold, store, use, operate, manage and control the Trust
Estate and conduct the business thereof, and, from time to time in its sole and
absolute discretion and without being under any duty to so act:
(1) make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon and
purchase or otherwise acquire additional fixtures, personalty and other
property;
(2) insure or keep the Trust Estate insured;
(3) to the extent permitted by the Indenture, manage and operate the
Trust Estate and exercise all the rights and powers of Trustor in its name or
otherwise with respect to the same;
(4) rent or sublet the Trust Estate or any portion thereof for any
purpose permitted by this Deed of Trust.
Beneficiary or the Trustee shall surrender possession of the Trust Estate
to Trustor only when all Obligations shall have been paid and all defaults made
good. The same right of taking possession, however, shall exist if any
subsequent Event of Default shall occur.
4.6 Purchase by Beneficiary. Upon any foreclosure sale (whether judicial or
nonjudicial) Beneficiary may bid for and purchase the property subject to such
sale and, upon compliance with the terms of sale, may hold, retain and possess
and dispose of such property in its own absolute right without further
accountability.
4.7 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
Trustor agrees to the full extent permitted by law that if an Event of Default
occurs, neither Trustor nor anyone claiming through or under it shall or will
set up, claim or seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement or foreclosure of this Deed of Trust or the absolute sale
of the Trust Estate or any portion thereof or the final and absolute putting
into possession thereof, immediately after such sale, of the purchasers thereof,
and Trustor for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws, and any and all right to have the assets comprising the Trust Estate
marshaled upon any foreclosure of the lien hereof and agrees that the Trustee or
any court having jurisdiction to foreclose such lien may sell the Trust Estate
in part or as an entirety.
4.8 Receiver. Upon the occurrence and during the continuance of any Event
of Default, Beneficiary, to the extent permitted by law and without regard to
the value, adequacy or occupancy of the security for the indebtedness and other
sums secured hereby, shall be entitled as a matter of right if it so elects to
the appointment of a receiver to enter upon and take possession of the Trust
Estate and such receiver may be appointed by any court of competent jurisdiction
upon application by Beneficiary. Beneficiary may have a receiver appointed
without notice to Trustor or any third party, and Beneficiary may waive any
requirement that the receiver post a bond. Beneficiary shall have the power to
designate and select the Person who shall serve as the receiver and to negotiate
all terms and conditions under which such receiver shall serve. Any receiver
appointed on Beneficiary's behalf may be an Affiliate of Beneficiary. The
expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the powers herein contained shall be secured
by this Deed of Trust. The right to enter and take possession of and to manage
and operate the Trust Estate, whether by a receiver or otherwise, shall be
cumulative to any other right or remedy, available to Beneficiary under this
Deed of Trust, under the Operative Documents or otherwise available to
Beneficiary and may be exercised concurrently therewith or independently
thereof. Notwithstanding the appointment of any receiver or other custodian,
Beneficiary shall be entitled as pledgee to the possession and control of any
cash, deposits, or instruments at the time held by, or payable or deliverable
under the terms of this Deed of Trust to, Beneficiary.
4.9 Suits to Protect the Trust Estate. Beneficiary shall have the power and
authority to institute and maintain any suits and proceedings as Beneficiary, in
its sole and absolute discretion, may deem advisable (a) to prevent any
impairment of the Trust Estate by any acts which may be unlawful or any
violation of this Deed of Trust, (b) to preserve or protect its interest in the
Trust Estate, and (c) to restrain the enforcement of or compliance with any
legislation or other Legal Requirement that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Beneficiary's interest.
4.10 Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Trustor, any Affiliate or any guarantor, co-maker
or endorser of any of Trustor's obligations, its creditors or its property,
Beneficiary, to the extent permitted by law, shall be entitled to file such
proofs of claim or other documents as it may deem be necessary or advisable in
order to have its claims allowed in such proceedings for the entire amount due
and payable by Trustor under this Deed of Trust or any other Operative Document,
at the date of the institution of such proceedings, and for any additional
amounts which may become due and payable by Trustor after such date.
4.11 Deficiencies; Application of Monies by Beneficiary.
(a) In case of a foreclosure sale of all or any part of the Trust Estate
and of the application of the proceeds of sale to the payment of the sums
secured hereby, Beneficiary shall be entitled to enforce payment from Trustor of
any additional amounts then remaining due and unpaid and to recover judgment
against Trustor for any portion thereof remaining unpaid, with interest at the
Overdue Rate.
(b) Trustor hereby agrees to the extent permitted by law, that no recovery
of any such judgment by Beneficiary or other action by Beneficiary and no
attachment or levy of any execution upon any of the Trust Estate or any other
property shall in any way affect the Lien and security interest of this Deed of
Trust upon the Trust Estate or any part thereof or any Lien, rights, powers or
remedies of Beneficiary hereunder, but such Lien, rights, powers and remedies
shall continue unimpaired as before.
(c) Any monies collected or received by Beneficiary under this Section 4.11
shall be first applied to the payment of compensation, expenses and
disbursements of the agents, attorneys and other representatives of Beneficiary,
and the balance remaining shall be applied to the payment of amounts due and
unpaid under this Deed of Trust.
4.12 Delay or Omission, No Waiver. No delay or omission of Beneficiary to
exercise any right, power or remedy upon any Event of Default shall exhaust or
impair any such right, power or remedy or shall be construed to waive any such
Event of Default or to constitute acquiescence therein. Every right, power and
remedy given to Beneficiary whether contained herein or in the other Operative
Documents or otherwise available to Beneficiary may be exercised from time to
time and as often as may be deemed expedient by Beneficiary.
4.13 No Waiver of One Default to Affect Another. No waiver of any Event of
Default hereunder shall extend to or affect any subsequent or any other Event of
Default then existing, or impair any rights, powers or remedies consequent
thereon. If Beneficiary (a) grants forbearance or an extension of time for the
payment of any sums secured hereby; (b) takes other or additional security for
the payment thereof; (c) waives or does not exercise any right granted in this
Deed of Trust or any other Operative Document; (d) releases any part of the
Trust Estate from the lien or security interest of this Deed of Trust or any
other instrument securing the Obligations; (e) consents to the filing of any
map, plat or replat of the Levee Board Land; (f) consents to the granting of any
easement on the Levee Board Land; or (g) makes or consents to any agreement
changing the terms of this Deed of Trust or any Operative Document subordinating
the lien or any charge hereof, no such act or omission shall release, discharge,
modify, change or affect the original liability under this Deed of Trust or
otherwise of Trustor, or any subsequent purchaser of the Trust Estate or any
part thereof or any maker, co-signer, surety or guarantor. No such act or
omission shall preclude Beneficiary from exercising any right, power or
privilege herein granted or intended to be granted in case of any Event of
Default then existing or of any subsequent Event of Default, nor, except as
otherwise expressly provided in an instrument or instruments executed by
Beneficiary, shall the lien or security interest of this Deed of Trust be
altered thereby, except to the extent expressly provided in any releases, maps,
easements or subordinations described in clause (d), (e), (f) or (g) above of
this Section 4.13. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Trust Estate, Beneficiary, without notice to
any person, firm or corporation, is hereby authorized and empowered to deal with
any such vendee or transferee with reference to the Trust Estate or the
indebtedness secured hereby, or with reference to any of the terms or conditions
hereof, as fully and to the same extent as it might deal with the original
parties hereto and without in any way releasing or discharging any of the
liabilities or undertakings hereunder, or waiving its right to declare such sale
or transfer an Event of Default as provided herein. Notwithstanding anything to
the contrary contained in this Deed of Trust or any Operative Document, (i) in
the case of any non-monetary Event of Default, Beneficiary may continue to
accept payments due hereunder without thereby waiving the existence of such or
any other Event of Default and (ii) in the case of any monetary Event of
Default, Beneficiary may accept partial payments of any sums due hereunder
without thereby waiving the existence of such Event of Default if the partial
payment is not sufficient to completely cure such Event of Default.
4.14 Discontinuance of Proceedings; Position of Parties Restored. If
Beneficiary shall have proceeded to enforce any right or remedy under this Deed
of Trust by foreclosure, entry or otherwise and such proceedings shall have been
discontinued or abandoned for any reason, or such proceedings shall have
resulted in a final determination adverse to Beneficiary, then and in every such
case Trustor and Beneficiary shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of Beneficiary shall
continue as if no such proceedings had occurred or had been taken.
4.15 Remedies Cumulative. No right, power or remedy, including, without
limitation remedies with respect to any security for the Obligations, conferred
upon or reserved to Beneficiary by this Deed of Trust or any Operative Document
is exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder or under any Operative
Document (including, but not limited to, any remedy provided for and in the
manner set forth in the Loan Agreement), now or hereafter existing at law, in
equity or by statute, and Beneficiary shall be entitled to resort to such
rights, powers, remedies or security as Beneficiary shall in its sole and
absolute discretion deem advisable.
4.16 Interest After Event of Default. If an Event of Default shall have
occurred and is continuing, all sums outstanding and unpaid under this Deed of
Trust and the Operative Documents shall, at Beneficiary's option, bear interest
at the Overdue Rate until such Event of Default has been cured. Trustor's
obligation to pay such interest shall be secured by this Deed of Trust.
4.17 Foreclosure, Expenses of Litigation. If foreclosure be made by the
Trustee, reasonable attorneys' fees for services in the supervision of said
foreclosure proceeding shall be allowed to the Trustee and Beneficiary as part
of the foreclosure costs. In the event of foreclosure of the lien hereof, there
shall be allowed and included as additional indebtedness all reasonable
expenditures and expenses which may be paid or incurred by or on behalf of
Beneficiary for attorneys' fees, appraiser's fees, outlays for documentary and
expert evidence, stenographers' charges, publication costs, and costs (which may
be estimated as to items to be expended after foreclosure sale or entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies and guaranties, and similar data and
assurances with respect to title as Beneficiary may deem reasonably advisable
either to prosecute such suit or to evidence to a bidder at any sale which may
be had pursuant to such decree the true condition of the title to or the value
of the Trust Estate or any portion thereof. All expenditures and expenses of the
nature in this section mentioned, and such expenses and fees as may be incurred
in the protection of the Trust Estate and the maintenance of the lien and
security interest of this Deed of Trust, including the fees of any attorney
employed by Beneficiary in any litigation or proceeding affecting this Deed of
Trust or any Operative Document, the Trust Estate or any portion thereof,
including, without limitation, civil, probate, appellate and bankruptcy
proceedings, or in preparation for the commencement or defense of any proceeding
or threatened suit or proceeding, shall be immediately due and payable by
Trustor, with interest thereon at the Overdue Rate, and shall be secured by this
Deed of Trust. Trustee waives its right to any statutory fee in connection with
any judicial or nonjudicial foreclosure of the lien hereof and agrees to accept
a reasonable fee for such services.
4.18 Deficiency Judgments. If after foreclosure of this Deed of Trust or
Trustee's sale hereunder, there shall remain any deficiency with respect to any
amounts payable under the Operative Documents or hereunder or any amounts
secured hereby, and Beneficiary shall institute any proceedings to recover such
deficiency or deficiencies, all such amounts shall continue to bear interest at
the Overdue Rate. Trustor waives any defense to Beneficiary's recovery against
Trustor of any deficiency after any foreclosure sale of the Trust Estate.
Trustor expressly waives any defense or benefits that may be derived from any
statute granting Trustor any defense to any such recovery by Beneficiary. In
addition, Beneficiary and Trustee shall be entitled to recovery of all of their
reasonable costs and expenditures (including without limitation any court
imposed costs) in connection with such proceedings, including their reasonable
attorneys' fees, appraisal fees and the other costs, fees and expenditures
referred to in Section 4.17 above. This provision shall survive any foreclosure
or sale of the Trust Estate, any portion thereof and/or the extinguishment of
the lien hereof.
4.19 Waiver of Jury Trial. Beneficiary and Trustor each waive any right to
have a jury participate in resolving any dispute, whether sounding in contract,
tort or otherwise arising out of, connected with, related to, or incidental to
the relationship established between them in connection with this Deed of Trust
or any Operative Document. Any such disputes shall be resolved in a bench trial
without a jury.
ARTICLE V
RIGHTS AND RESPONSIBILITIES OF TRUSTEE;
OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust, Trustor and
Beneficiary agree as follows.
5.1 Exercise of Remedies by Trustee. To the extent that this Deed of Trust
or applicable law authorizes or empowers Beneficiary to exercise any remedies
set forth in Article IV hereof or otherwise, or perform any acts in connection
therewith, Trustee (but not to the exclusion of Beneficiary unless so required
under the law of the State of Mississippi) shall have the power to exercise any
or all such remedies, and to perform any acts provided for in this Deed of Trust
in connection therewith, all for the benefit of Beneficiary and on Beneficiary's
behalf in accordance with applicable law of the State of Mississippi. In
connection therewith, Trustee: (a) shall not exercise, or waive the exercise of,
any Beneficiary's remedies (other than any rights of Trustee to any indemnity or
reimbursement), except at Beneficiary's request, and (b) shall exercise, or
waive the exercise of, any or all of Beneficiary's remedies at Beneficiary's
request, and in accordance with Beneficiary's directions as to the manner of
such exercise or waiver. Trustee may, however, decline to follow Beneficiary's
request or direction if Trustee shall be advised by counsel that the action or
proceeding, or manner thereof, so directed may not lawfully be taken or waived.
5.2 Rights and Privileges of Trustee. To the extent that this Deed of Trust
requires Trustor to indemnify Beneficiary or reimburse Beneficiary for any
expenditures Beneficiary may incur, Trustee shall be entitled to the same
indemnity and the same rights to reimbursement of expenses as Beneficiary,
subject to such limitations and conditions as would apply in the case of
Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary's liability as to any matter Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Trustor, pursuant to
this Deed of Trust, appoints Beneficiary as Trustor's attorney in fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Trustor's behalf without joinder or confirmation by the
other.
5.3 Resignation or Replacement of Trustee. Trustee may resign by an
instrument in writing addressed to Beneficiary, or Trustee may be removed at any
time with or without cause (i.e., in Beneficiary's sole and absolute discretion)
by an instrument in writing executed by Beneficiary. In case of the death,
resignation, removal or disqualification of Trustee or if for any reason
Beneficiary shall deem it desirable to appoint a substitute, successor or
replacement Trustee to act instead of the Trustee originally named (or in place
of any substitute, successor or replacement Trustee), then Beneficiary shall
have the right and is hereby authorized and empowered to appoint a successor,
substitute or replacement Trustee, without any formality other than appointment
and designation in writing executed by Beneficiary, which instrument shall be
recorded if required by the law of the State of Mississippi. The law of the
State of Mississippi shall govern the qualifications of any Trustee. The
authority conferred upon Trustee by this Deed of Trust shall automatically
extend to any and all other successor, substitute and replacement Trustee(s)
successively until the Obligations have been paid in full or the Trust Estate
has been sold hereunder or released in accordance with the provisions of the
Operative Documents. Beneficiary's written appointment and designation of any
Trustee shall be full evidence of Beneficiary's right and authority to make the
same and of all facts therein recited. No confirmation, authorization, approval
or other action by Trustor shall be required in connection with any resignation
or other replacement of Trustee.
5.4 Authority of Beneficiary. If Beneficiary is a corporation or a national
banking association and the instrument of appointment of any successor or
replacement Trustee is executed on Beneficiary's behalf by an officer of such
corporation or national banking association, then such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of Beneficiary.
5.5 Effect of Appointment of Successor Trustee. Upon the appointment and
designation of any successor, substitute or replacement Trustee, Trustee's
entire estate and title in the Trust Estate shall vest in the designated
successor, substitute or replacement Trustee. Such successor, substitute or
replacement Trustee shall thereupon succeed to and shall hold, possess and
execute all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee. All references herein to Trustee shall be deemed to
refer to Trustee (including any successor or substitute appointed and designated
as herein provided) from time to time acting hereunder.
5.6 Confirmation of Transfer and Succession. Upon the written request of
Beneficiary or of any successor, substitute or replacement Trustee, any former
Trustee ceasing to act shall execute and deliver an instrument transferring to
such successor, substitute or replacement Trustee all of the right, title,
estate and interest in the Trust Estate of the Trustee so ceasing to act,
together with all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee, and shall duly assign, transfer and deliver all
properties and moneys held by said Trustee hereunder to said successor,
substitute or replacement Trustee.
5.7 Ratification. Trustor hereby ratifies and confirms any and all acts
that any Trustee may take or perform by virtue of this Deed of Trust.
5.8 Exculpation. Trustee shall not be liable for any error of judgment or
act done by Trustee in good faith, or otherwise be responsible or accountable
under any circumstances whatsoever, except for Trustee's gross negligence,
willful misconduct or knowing violation of law. Trustee shall have the right to
rely on any instrument, document or signature authorizing or supporting any
action taken or proposed to be taken by it hereunder, believed by it in good
faith to be genuine. All moneys received by Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated in any manner from any other moneys (except
to the extent required by law). Trustee shall be under no liability for interest
on any moneys received by it hereunder.
5.9 Endorsement and Execution of Documents. Upon Beneficiary's written
request, Trustee shall, without liability or notice to Trustor, execute, consent
to, or join in any instrument or agreement in connection with or necessary to
effectuate the purposes of the Operative Documents. Trustor hereby irrevocably
designates Trustee as its attorney in fact to execute, acknowledge and deliver,
on Trustor's behalf and in Trustor's name, all instruments or agreements
necessary to implement any provision(s) of this Deed of Trust or to further
perfect the lien created by this Deed of Trust on the Trust Estate. This power
of attorney shall be deemed to be coupled with an interest and shall survive any
disability of Trustor.
5.10 Multiple Trustees. If Beneficiary appoints multiple trustees, then any
Trustee, individually, may exercise all powers granted to Trustee under this
instrument, without the need for action by any other Trustee(s).
5.11 Terms of Trustee's Acceptance. Trustee accepts the trust
created by this Deed of Trust upon the following terms and conditions.
(a) Delegation. Trustee may exercise any of its powers through
appointment of attorney(s) in fact or agents.
(b) Counsel. Trustee may select and employ legal counsel (including any law
firm representing Beneficiary). Trustor shall reimburse all reasonable legal
fees and expenses that Trustee may thereby incur.
(c) Security. Trustee shall be under no obligation to take any action upon
any Event of Default unless furnished security or indemnity, in form
satisfactory to Trustee, against costs, expenses, and liabilities that Trustee
may incur.
(d) Costs and Expenses. Trustor shall reimburse Trustee, as part of the
Obligations secured hereunder, for all reasonable disbursements and expenses
(including legal fees and expenses) incurred by reason of and as provided for in
this Deed of Trust, including any of the foregoing incurred in Trustee's
administering and executing the trust created by this Deed of Trust and
performing Trustee's duties and exercising Trustee's powers under this Deed of
Trust.
(e) Release. Upon payment of the Obligations secured hereunder, Beneficiary
shall request Trustee to release this Deed of Trust and shall surrender all the
Obligations secured hereunder to Trustee. Trustor shall pay all costs of
recordation, if any.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Heirs, Successors and Assigns Included in Parties. Whenever one of the
parties hereto is named or referred to herein, the heirs, successors and assigns
of such party shall be included, and subject to the limitations set forth in
Section 1.11, all covenants and agreements contained in this Deed of Trust, by
or on behalf of Trustor or Beneficiary shall bind and inure to the benefit of
its heirs, successors and assigns, whether so expressed or not.
6.2 Intentionally Omitted.
6.3 Addresses for Notices, Etc.
(a) Any notice, report, demand or other instrument authorized or required
to be given or furnished under this Deed of Trust to Trustor, Trustee or
Beneficiary shall be deemed given or furnished when addressed to the party
intended to receive the same, at the address of such party set forth below, and
delivered at such address:
Beneficiary: BA Leasing & Capital Corporation
Four Embarcadero Center - Suite 1200
San Francisco, California 94111
Attention: Ms. Sonia T. Delen
With a copy to: Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Attention: Douglas L. Wisner, Esq.
Trustor: Hancock Bank
2510 14th Street
One Hancock Plaza
Gulfport, Mississippi 39501
Attention: Ms. Karen Thigpen
With a copy to: Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Attention: Douglas L. Wisner, Esq.
Trustor: BL Development Corp.
13705 First Avenue North
Plymouth, Minnesota 55441-5451
Attention: Chief Financial Officer
With a copy to: Brian J. Klein, Esq.
Maslon Edelman Borman & Brand
3300 Norwest Center
Minneapolis, Minnesota 55402
Trustee: Mr. James R. McIlwain
c/o Hancock Bank
2510 14th Street
One Hancock Plaza
Gulfport, Mississippi 39501
With a copy to: Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Attention: Douglas L. Wisner, Esq.
(b) Any person may change the address to which any such notice, report,
demand or other instrument is to be delivered or mailed to that person, by
furnishing written notice of such change to the other party, but no such notice
of change shall be effective unless and until received by such other party.
6.4 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Deed of Trust are for convenience of reference only, are
not to be considered a part hereof, and shall not limit or expand or otherwise
affect any of the terms hereof.
6.5 Invalid Provisions to Affect No Others. In the event that any of the
covenants, agreements, terms or provisions contained herein or in any Operative
Document shall be invalid, illegal or unenforceable in any respect, the validity
of the lien hereof and the remaining covenants, agreements, terms or provisions
contained herein or in any other Operative Document shall be in no way affected,
prejudiced or disturbed thereby. To the extent permitted by law, Trustor waives
any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
6.6 Changes and Priority Over Intervening Liens. Neither this Deed of Trust
nor any term hereof may be changed, waived, discharged or terminated orally, or
by any action or inaction, but only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought. Any agreement hereafter made by Trustor and Beneficiary relating to
this Deed of Trust shall be superior to the rights of the holder of any
intervening lien or encumbrance.
6.7 Estoppel Certificates. Within ten Business Days after Beneficiary's
written request, Trustor shall from time to time execute a certificate, in
recordable form (an "Estoppel Certificate), stating: (a) the current amount of
the Obligations secured hereunder and all elements thereof, including principal,
interest, and all other elements; (b) Trustor has no defense, offset, claim,
counterclaim, right of recoupment, deduction, or reduction against any of the
Obligations secured hereunder; (c) none of the Operative Documents have been
amended, whether orally or in writing or, if there have been any amendments, the
date and nature of each amendment; (d) Trustor has no claim against Beneficiary
of any kind; (e) any power of attorney granted to Beneficiary is in full force
and effect; and (f) such other matters relating to this Deed of Trust, any
Operative Documents and the relationship of Trustor and Beneficiary as
Beneficiary shall request.
6.8 Governing Law. This Deed of Trust was negotiated in New York, and made
by Beneficiary and accepted by Trustor in the State of New York, which State the
parties agree has a substantial relationship to the parties and to the
underlying transaction embodied hereby. This Deed of Trust and the Obligations
arising hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to contracts made and performed in such
State and any applicable law of the United States of America, including, without
limiting the generality of the foregoing, matters of construction, validity and
performance, except that at all times the provisions for the creation,
perfection, and enforcement of the liens and security interests created pursuant
hereto shall be governed by and construed according to the law of Mississippi,
including the Gaming Laws, it being understood that, to the fullest extent
permitted by law of Mississippi, the law of the State of New York shall govern
the validity and the enforceability of this Deed of Trust and the Obligations
arising hereunder. To the fullest extent permitted by law, Trustor hereby
unconditionally and irrevocably waives any claim to assert that the law of any
other jurisdiction governs this Deed of Trust and the other Operative Documents
and this Deed of Trust and the other Operative Documents shall be governed by
and construed in accordance with the laws of the State of New York pursuant to
5-1401 of the New York General Obligations Law.
Any legal suit, action or proceeding against Beneficiary, Trustee or
Trustor arising out of or relating to this Deed of Trust shall be instituted in
any federal or state court in New York, New York, pursuant to 5-1402 of the
New York General Obligations Law, or at Beneficiary's option, in the State of
Mississippi with respect to the exercise by Beneficiary of any of its rights and
remedies relating to any portion of the Trust Estate within Mississippi, and
Trustor waives any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding. Trustor hereby irrevocably submits
to the jurisdiction of any such court in any suit, action or proceeding. Trustor
hereby accepts and acknowledges service of any and all process which may be
served in any such suit, action or proceeding in any federal or state court in
New York, New York, and agrees that service of process at the address provided
for herein shall be deemed in every respect effective service of process upon
Trustor, in any such suit, action or proceeding in the State of New York.
6.9 Required Notices. Trustor shall notify Beneficiary promptly of the
occurrence of any of the following and provide Beneficiary a copy of any notice
or documents referred to: (i) receipt of notice from any Governmental Authority
relating to all or any material part of the Trust Estate if such notice relates
to a default, act, occasion or circumstance that could materially affect the
lien hereby granted against the Trust Estate or the value of the Trust Estate as
collateral; (ii) receipt of notice from a tenant leasing all or any material
portion of the Trust Estate if such notice relates to a default or act, omission
or circumstance that could materially affect the lien hereby granted against the
Trust Estate or the value of the Trust Estate as collateral; (iii) receipt of
notice from the holder of any Permitted Lien relating to a default if such
default could materially affect the lien hereby granted against the Trust Estate
or the value of the Trust Estate as collateral; (iv) the commencement of any
proceeding or the entry of any judgment, decree or order having a Material
Adverse Effect on all or any portion of the Trust Estate; or (v) commencement of
any judicial or administrative proceeding or the entry of any judgment, decree
or order by or against or otherwise affecting Trustor or any Affiliate of
Trustor, a material portion of the Trust Estate or material portion of any
personal property or any other action by any creditor or lessor thereof that
could materially affect the lien hereby granted against the Trust Estate or the
value of the Trust Estate as collateral.
6.10 Reconveyance. Upon written request of Beneficiary stating that all
sums secured hereby have been paid, and upon surrender of this Deed of Trust to
the Trustee for cancellation and retention and upon payment of its fees, the
Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof. The grantee in such reconveyance may be described
as "the person or persons legally entitled thereto."
6.11 Attorneys' Fees. Without limiting any other provision contained
herein, Trustor agrees to pay all costs of Beneficiary or Trustee incurred in
connection with the enforcement of this Deed of Trust, including without
limitation all reasonable attorneys' fees whether or not suit is commenced, and
including, without limitation, fees incurred in connection with any probate,
appellate, bankruptcy, deficiency or any other litigation proceedings, all of
which sums shall be secured hereby.
6.12 Late Charges. By accepting payment of any sum secured hereby after its
due date, Beneficiary does not waive its right to collect any late charge
thereon or interest thereon at the Overdue Rate, if so provided, not then paid
or its right either to require prompt payment when due of all other sums so
secured or to declare default for failure to pay any amounts not so paid.
6.13 Cost of Accounting. Trustor shall pay to Beneficiary, for and on
account of the preparation and rendition of any accounting, which Trustor may be
entitled to require under any law or statute now or hereafter providing
therefor, the reasonable costs thereof.
6.14 Right of Entry. Beneficiary may at any reasonable time or times make
or cause to be made entry upon and inspections of the Trust Estate or any part
thereof in person or by agent; provided that any such entry or inspections shall
be made in such a manner so as to minimize any disruption to the business
operations of Trustor.
6.15 Corrections. Trustor shall, upon request of Trustee, promptly correct
any defect, error or omission which may be discovered in the contents of this
Deed of Trust or in the execution or acknowledgment hereof, and shall execute,
acknowledge and deliver such further instruments and do such further acts as may
be necessary or as may be reasonably requested by Trustee to carry out more
effectively the purposes of this Deed of Trust, to subject to the lien and
security interest hereby created in any of Trustor's properties, rights or
interest covered or intended to be covered hereby, and to perfect and maintain
such lien and security interest.
6.16 Statute of Limitations. To the fullest extent allowed by the law, the
right to plead, use or assert any statute of limitations as a plea or defense or
bar of any kind, or for any purpose, to any debt, demand or obligation secured
or to be secured hereby, or to any complaint or other pleading or proceeding
filed, instituted or maintained for the purpose of enforcing this Deed of Trust
or any rights hereunder, is hereby waived by Trustor.
6.17 Joint and Several Liability. All obligations of Trustor hereunder, if
more than one, are joint and several. Recourse for deficiency after sale
hereunder may be had against the property of Trustor, without, however, creating
a present or other lien or charge thereon.
6.18 Context. In this Deed of Trust, whenever the context so requires, the
neuter includes the masculine and feminine, and the singular including the
plural, and vice versa.
6.19 Time. Time is of the essence of each and every term, covenant
and condition hereof. Unless otherwise specified herein, any reference to
"days" in this Deed of Trust shall be deemed to mean "calendar days."
6.20 Interpretation. As used in this Deed of Trust unless the context
clearly requires otherwise: The terms "herein" or "hereunder" and similar terms
without reference to a particular section shall refer to the entire Deed of
Trust and not just to the section in which such terms appear; the term "lien"
shall also mean a security interest, and the term "security interest" shall also
mean a lien.
6.21 Limitation of Liability. Notwithstanding anything herein to the
contrary, the parties hereto acknowledge and agree (a) that the obligations
herein imposed on Hancock Bank, as Trustor and the representations, covenants
and warranties made herein by Hancock Bank, as Trustor are all subject to the
other Operative Documents, and (b) Hancock Bank, as Trustor, its officers,
employees and agents shall have no personal liability whatsoever arising from or
in any way relating to (i) failure of Hancock Bank, as Trustor to fulfill any
obligation herein imposed on Hancock Bank, as Trustor, (ii) any
misrepresentation made herein by Hancock Bank, as Trustor, or (iii) the breach
of any covenant or warranty made herein by Hancock Bank, as Trustor, it being
understood the liability of Hancock Bank, as Trustor hereunder for any such
failure, misrepresentation or breach is limited to the Trust Estate.
ARTICLE VII
POWER OF ATTORNEY
7.1 Grant of Power. Trustor irrevocably appoints Beneficiary and any
successor thereto as its attorney-in-fact, with full power and authority,
including the power of substitution, exercisable upon an Event of Default to act
for Trustor in its name, place and stead as hereinafter provided:
(a) Possession and Completion. To take possession of the Trust Estate,
remove all employees, contractors and agents of Trustor therefrom, complete or
attempt to complete the work of construction, and market, sell or lease the
Trust Estate.
(b) Employment of Others. To employ such contractors, subcontractors,
suppliers, architects, inspectors, consultants, property managers and other
agents as Beneficiary, in its discretion, deems proper for the protection or
clearance of title to the Trust Estate, or for the protection of Beneficiary's
interests with respect thereto.
(c) Security Guards. To employ watchmen to protect the Trust Estate
from injury.
(d) Compromise Claims. To pay, settle or compromise all bills and claims
then existing or thereafter arising against Trustor, which Beneficiary, in its
discretion, deems proper for the protection or clearance of title to the Trust
Estate, or for the protection of Beneficiary's interests with respect thereto.
(e) Legal Proceedings. To prosecute and defend all actions and
proceedings in connection with the Trust Estate.
(f) Other Acts. To execute, acknowledge and deliver all other instruments
and documents in the name of Trustor that are necessary or desirable, to
exercise Trustor's rights under all contracts concerning the Trust Estate and to
do all other acts with respect to the Trust Estate that Trustor might do on its
own behalf, as Beneficiary, in its reasonable discretion, deems proper.
DEED OF TRUST (CASINO BARGE EQUIPMENT)
IN WITNESS WHEREOF, the undersigned have executed this Deed of Trust and
Security Agreement as of the day and year first above written with actual
execution on the date set forth in the acknowledgment below.
BL DEVELOPMENT CORP.
a Minnesota corporation,
as Trustor
By:/s/ TIMOTHY J. COPE
Name: Timothy J. Cope
Title: Chief Financial Officer
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
Personally appeared before me, the undersigned authority in and for
the said county and state, on this 16th day of May, 1996, within my
jurisdiction, the within named Timothy J. Cope who acknowledged that he is the
Chief Financial Officer of BL Development Corp., a Minnesota corporation, and
that for and on behalf of the said corporation, and as its act and deed he
executed the above and foregoing instrument, after first having been duly
authorized by said corporation to do so.
/s/ PATRICIA L. BUFFMAN
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NOTARY PUBLIC
My Commission expires:
- --------------------------------
(Affix official seal, if applicable)
DEED OF TRUST (CASINO BARGE EQUIPMENT)
IN WITNESS WHEREOF, the undersigned have executed this Deed of Trust and
Security Agreement as of the day and year first above written with actual
execution on the date set forth in the acknowledgment below.
HANCOCK BANK,
not in its individual capacity
but solely as Lessor and Trustee
pursuant to the Participation
Agreement, as Trustor
By: /s/ C. H. Gibbons
Name: C. H. Gibbons
Title: Vice President & Trust Officer
STATE OF MISSISSIPPI)
) ss:
COUNTY OF HARRISON )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 13th day of May, 1996, within my jurisdiction,
the within named C. H. Gibbons who acknowledged that he is the Vice President &
Trust Officer of Hancock Bank, a state banking association, and that for and on
behalf of the said bank, and as its act and deed in the representative capacity
therein stated he executed the above and foregoing instrument, after first
having been duly authorized by said bank to do so.
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NOTARY PUBLIC
My Commission expires:
My Commission Expires Jan. 15, 2000
- --------------------------------
(Affix official seal, if applicable)
SCHEDULE A
LEGAL DESCRIPTION
The following described real property located in Sections 5 and 6, Township 3
South, Range 10 West, Tunica County, Mississippi:
Commencing at a point in the centerline of the Levee of the Yazoo-Mississippi
Delta Levee Board at Levee Centerline Station 18/50 + 30; thence northeastwardly
at an azimuth based on true South 1960 44' 19" a distance of 458.21 feet to the
true POINT OF BEGINNING; thence northeastwardly at an azimuth 2140 44' 25" a
distance of 3308.66 feet to a point; thence northwestwardly at an azimuth 1240
52' 30" a distance 641.48 feet to a point; thence southwestwardly at an azimuth
390 39' 34" a distance of 709.96 feet to a point; thence westwardly at an
azimuth 970 22' 11" to the state line between Arkansas and Mississippi; thence
in a general southwardly direction along the state line between Arkansas and
Mississippi to the point of intersection with azimuth 1240 40' 34" from the
POINT OF BEGINNING; thence southeastwardly at an azimuth 3040 40' 34" to the
POINT OF BEGINNING;
All azimuths stated herein running clockwise from true South;
The area of such real property lying easterly of the east meander line of Buck
Lake being 52.8 acres, more or less.
SCHEDULE B
EQUIPMENT
[Missing the text for this schedule B]