[EXECUTION COPY]
GROUND LEASE
THIS GROUND LEASE (this "Ground Lease"), dated as of May 10, 1996, by and
between BL DEVELOPMENT CORP., a Minnesota corporation ("BL"), having an office
at 13705 First Avenue North; Plymouth, Minnesota 55441 ("Landlord"), and HANCOCK
BANK, not in its individual capacity but as Trustee, having an office at One
Hancock Plaza, Gulfport, Mississippi 39502 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the fee simple owner of the land described on
Exhibit A attached hereto and made a part hereof (together with all
rights-of-way or use, easements, servitudes, licenses, tenements, driveways,
approaches, pavements, hereditaments, curbs and street front privileges and
appurtenances thereunto belonging (the "Land"));
WHEREAS, simultaneously with the execution and delivery of this Ground
Lease, Tenant is entering into that certain Lease Agreement and Deed of Trust,
dated as of the date hereof (the "Lease"), by and between Tenant, as lessor, and
Landlord, as lessee, covering, among other things, the Hotel to be constructed
on the Land;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Land. Landlord, for and in consideration of the rents herein reserved
and of the agreements herein contained on the part of Tenant to be kept,
observed and performed, does by these presents, demise and lease to Tenant, and
Tenant hereby hires and leases from Landlord, the Land, subject to all Permitted
Liens (such capitalized term, and all other capitalized terms contained herein
and not otherwise defined, shall have the respective meanings ascribed thereto
in the Lease, whether or not such agreement is still in effect).
2. Term and Use. (a) The term of this Ground Lease shall commence on the
date hereof (hereinafter referred to as the "Commencement Date") and shall end
(unless extended in accordance with Section 2(b) below), on the date which is
the thirtieth (30th) anniversary after the Commencement Date (the "Initial
Term").
(b) The term of this Ground Lease shall thereafter be extended
automatically for twelve (12) additional periods of time, at the rent and upon
all of the other terms, conditions, covenants and provisions set forth herein,
and shall each be for a term of five (5) years; provided, however, that Tenant
may cancel this Ground Lease, effective as of the date of the expiration of the
Initial Term or as of the date of the expiration of any of the extended periods
of time above specified, by giving Landlord written notice of such cancellation
on or prior to a date one hundred and eighty (180) days before the effective
date of such cancellation. Such extensions shall be automatic without the
necessity of any new Ground Lease or other instruments or agreements or any
notice being executed or given. The "Term" of this Ground Lease shall mean the
Initial Term, and any renewal or extended Terms of this Ground Lease. The Land
may be used for any lawful purpose. Notwithstanding anything herein to the
contrary contained herein or in any Operative Document, from and after the date
the Lease terminates (other than as a result of a Lease Event of Default) or
expires, this Ground Lease may be terminated immediately by Tenant upon notice
to Landlord.
3. Rent. (a) The obligation of Tenant to pay rent ("Rent") reserved under
this Section 3 shall commence on the earlier of (i) that date in which Tenant
(or Tenant's permitted sublessees or assignees) commences business operations on
the Land and (ii) March 31, 1997 (such date being hereinafter referred to as the
"Rent Commencement Date"). During the period from the Commencement Date to the
Rent Commencement Date, no basic rent shall be payable hereunder. Tenant
covenants and agrees to pay Landlord for the Land, without abatement, offset or
deduction, and without previous demand therefor, basic rent at the rate per
annum equal to the sum of One Thousand Dollars, commencing on the Rent
Commencement Date and continuing for a period of one hundred twenty months (the
"First Rental Term"). Thereafter, Tenant shall pay basic rent under this Ground
Lease in an annual amount as determined by the Rent Appraisal (as defined in
Section 3(c) below). All basic rent per annum shall be payable by Tenant in
equal yearly installments on the last day of December of each and every calendar
year during the Term and shall be payable at the office of the Landlord first
above set forth or at such other place of which Landlord shall have given Tenant
written notice at least thirty (30) days in advance.
(b) All sums, other than basic rent, for which Tenant is obligated to
pay hereunder (whether to Landlord or otherwise) shall be additional rent.
As used herein the term "rent" shall be deemed to include the basic rent
and the additional rent.
(c) At least ninety (90) days and no more than one hundred twenty
(120) days prior to the expiration of the First Rental Term (and prior to
the expiration of the Initial Term and each extended Term), Landlord and
Tenant shall each select an MAI appraiser to perform an appraisal of the
Land to determine the fair market annual basic rent for the Land for
remainder of the Initial Term or the next extended Term, as the case may
be. Landlord and Tenant shall promptly notify one another of the name and
address of the MAI appraiser which they have selected. Such fair market
annual basic rent shall be based on the rental value of the Land (taking
into account that such rent shall be payable in equal installments on the
last day of December of each year) with no improvements thereon, except
that all utilities needed to utilize the Land for hotel use shall be deemed
to be available for use by Tenant. Within twenty days after such selection,
and in any event at least sixty days prior to the expiration of the First
Rental Term, the Initial Term or the extended Term, as the case may be, the
appraisers shall select a date for the simultaneous delivery of the
appraisals, and on such agreed upon date, each appraiser shall
simultaneously submit to the parties and to each other a written
determination of the fair market annual basic rent for the Land based only
on the criteria set forth above. If the appraisers are unable to agree upon
a date for the delivery of the appraisals, then such date shall be the date
which is sixty days prior to the expiration of the First Rental Term, the
Initial Term or the extended Term, as the case may be. If either Landlord
or Tenant fails to select an appraiser as provided herein, then the fair
market rent calculated by the sole appraiser who was selected shall be
binding upon Landlord and Tenant. If the results of the two appraisals do
not vary by more than five percent per annum, then the fair market annual
basic rent shall be deemed to be the mean average of the figures calculated
by the appraisers. If the results of the two appraisals vary by more than
five percent per annum, then the two appraisers shall jointly select a
third appraiser, who shall within ten days of such selection, choose either
the fair market annual basic rent calculated by the Landlord's appraiser or
by the Tenant's appraiser, based upon the professional analysis of the
third appraiser as to which of the two appraisals has most accurately
calculated the fair market basic rent for the Land applying only the
criteria set forth above. Such conclusion shall be binding on both Landlord
and Tenant. If the two appraisers are unable to select a third appraiser
within ten days after submission of their appraisals, such selection shall
be made by the American Arbitration Association. Annual basic rent shall be
modified based on the conclusions of the appraisals as set forth above. A
rent appraisal shall be performed in the manner described in this Section
for the remainder of the Initial Term following the First Rental Term and
for each extended Term of this Ground Lease, and annual basic rent
determined by such Rent Appraisal shall become the annual basic rent to be
paid by Tenant during such period as applicable.
4. Mechanic's Lien. If any mechanic's, materialman's or other similar lien
shall at any time be filed against the Land on account of any work, labor or
services performed or claimed to have been performed, or on account of any
materials furnished or claimed to have been furnished, for or at the direction
of Tenant or anyone holding or occupying the Land through or under Tenant,
Tenant shall, without cost or expenses to Landlord, with all due diligence,
cause the same to be (1) discharged of record by payment, bond, order of a court
of competent jurisdiction or otherwise; or (2) contested, in which event any
judgment or other process issued in such contest shall be paid or discharged
before execution thereof; or (3) provide Landlord with an indemnity therefor.
5. Real Estate Taxes. During the term of this Ground Lease, Tenant will pay
all real estate taxes and assessments, both general and special, which shall
become due and payable on the Land. If any such tax or assessment may, at the
option of the taxpayer, be paid in installments, Tenant may exercise the option
to pay the same in installments. If Tenant shall elect to pay any such tax or
assessment on an installment basis, then Tenant will pay only those installments
which become due and payable during the term of this Ground Lease. All real
estate taxes and assessments that shall be assessed with respect to the fiscal
tax years falling wholly or partially within the first and last calendar years
of the term of this Ground Lease shall be apportioned pro rata between Landlord
and Tenant on a per diem basis in accordance with the respective numbers of days
in said fiscal tax years during which this Ground Lease is in effect.
Tenant, at its expense, shall have the right to contest or review by
legal, administrative or other proceedings the amount or validity of any such
tax or assessment imposed against the Land. Nothing contained herein shall imply
any right on the part of Tenant to postpone such payment unless such proceedings
or security given shall stay the collection thereof and the sale of the Land to
satisfy same. Landlord, at Tenant's request, shall join in any such proceedings,
but Landlord shall not be liable for any expenses in connection therewith. The
proceedings referred to herein shall include, but shall not be limited to,
appropriate appeals from any judgments, decrees or orders made in any such
proceedings. In the event of any reduction, cancellation or discharge of such
taxes or assessments as a result of such proceedings, and if Tenant has not
already paid same, then Tenant will do so forthwith as they are finally levied,
assessed or imposed. If there shall be any refund payable by the governmental
authority with respect thereto, Tenant shall be entitled to receive and retain
same.
Nothing contained herein shall obligate Tenant to pay any income,
inheritance, estate, gift, succession, sales, use, revenue or transfer tax (or
any substitution therefor) of, or levied or assessed against Landlord; nor any
other tax, assessment, charge or levy (or any substitution therefor) against
Landlord with respect to or because of the rent and other income derived by
Landlord under this Ground Lease; nor shall Tenant be deemed obligated to pay
any personal property, corporation, franchise, capital stock, payroll, excise,
privilege or any other tax of similar nature (or any substitution therefor)
which may be levied or assessed against Landlord.
6. Utilities. Tenant will pay all charges for sewer usage or
rental, refuse removal, and utilities, including gas, water and
electricity, consumed on the Land during the term of this Ground Lease as
same shall become due and payable.
7. Insurance.
(a) Tenant shall, at its sole cost and expense, at all times during
the term hereof maintain and/or cause to be maintained, in full force and
effect, comprehensive general liability insurance covering Tenant's
operations at the Land, including Landlord as an additional insured. Tenant
shall deliver to Landlord a certificate from each insurance carrier as to
each such insurance policy.
(b) Landlord agrees that Tenant or a subtenant of Tenant who is
required to maintain the insurance required under this Section 7 may comply
with this Section in whole or in part by means of a self-insurance program.
(c) Tenant, or its designee, shall have the sole and exclusive right
(without the participation of Landlord) to adjust and settle any and all
claims under insurance policies obtained by Tenant or those claiming by or
through Tenant in connection with or relating to the Land to receive the
proceeds of any such claims.
8. Indemnity.
(a) Tenant shall indemnify, defend and hold harmless Landlord from and
against any and all claims arising from Tenant's use of the Land, or from
the conduct of Tenant's business, or from any activity, work or things done
by Tenant (or anyone acting by through or under Tenant, other than
Landlord, or anyone acting by, through or under Landlord) in or about the
Land or elsewhere, and shall further indemnify, defend and hold harmless
Landlord from and against any and all claims arising from any breach or
default in the performance of any obligation on Tenant's part to be
performed under the terms of this Ground Lease. Notwithstanding anything
herein to the contrary, Landlord shall be liable for its own negligence and
willful misconduct, and for any act or omission of Landlord, or anyone
acting by, through or under Landlord, and shall not be entitled to any
indemnity in connection with any of the foregoing.
9. Compliance with Laws and Ordinances. Tenant, at its expense, will comply
with all federal, state, county and city laws, ordinances and regulations of any
duly constituted authority affecting the Land. Tenant, at its expense, shall
have the right to contest or review by legal, administrative or other
proceedings the validity of any such law, ordinance and regulation, or the
application thereof. During such proceedings, compliance with any such law,
ordinance or regulation may be deferred by Tenant. Landlord shall join in such
proceedings if necessary to do so in order to prosecute such proceedings
properly, but Landlord shall not be liable for any expenses in connection
therewith. The proceedings referred to herein shall include, but shall not be
limited to, appropriate appeals from any judgments, decrees or orders made in
any such proceedings.
10. Landlord's Access to Land. Landlord will have access to the Land, at
its own risk and expense, at any and all reasonable times during the term of
this Ground Lease for the purpose of examining and inspecting same upon
reasonable prior notice.
11. Assignment and Subletting. Tenant, without the consent of Landlord, at
any time and from time to time during the term of this Ground Lease, shall have
the right to assign this Ground Lease, and its rights hereunder, and to sublet
all or any part of the Land or any portion thereof. In the event this Ground
Lease shall be assigned by Tenant, then all liabilities and obligations on the
part of Tenant accruing after such assignment shall terminate, provided that any
such assignee shall execute an instrument in writing assuming all of those
liabilities and obligations imposed upon Tenant hereunder which accrue after the
effective date of such assignment and deliver the same to Landlord. Nothing
contained herein, however, shall be construed to release Tenant from any
liability or obligation which accrued prior to the effective date of such
assignment.
12. Performance by Subtenants and Occupancy Tenants. Landlord shall accept
performance by any subtenant or occupant of any of the terms and provisions of
this Ground Lease required to be performed by Tenant with the same force and
effect as though performed by Tenant.
13. Casualty and Condemnation. If the Hotel, or any part thereof, suffers a
Casualty, Tenant's obligations under this Ground Lease shall not be affected.
Following any Casualty on the Land, Tenant shall have no obligation to restore,
repair or rebuild the Hotel, or any part thereof, on the Land.
As used herein, a "Condemnation" means taking of title to the Land
resulting in the loss or use of possession of a material portion of the Land as
reasonably determined in good faith by the Tenant.
In the event of a Condemnation, the entire award, or the aggregate of
any separate awards, shall be during the Lease Term distributed in accordance
with the Lease and thereafter shall be apportioned as follows:
A. There shall be first paid any and all costs, fees and expenses
reasonably incurred by Landlord and Tenant in connection with the
collection thereof;
B. There shall be next paid to Landlord an amount as shall represent
compensation for the value of the Land (excluding the Hotel) as encumbered
by the Ground Lease determined in accordance with the fair market appraisal
terms and procedures set forth in Section 22 hereof;
C. Any balance of the award shall be paid to Tenant (and if the Lease
is in effect, the same shall be distributed in accordance with the Lease);
and this Ground Lease shall terminate on the following date: (x) if the Lease is
in effect on the date of the Condemnation, the date the Lease terminates with
respect to the Leased Property pursuant to Section 10.2 of the Lease and (y) in
all other cases on the date of such Condemnation, and in either case the Rent
and other charges shall be apportioned and paid to the date of such
Condemnation. The provisions of this Section as to the apportionment of any such
awards shall survive such termination.
In the event of a condemnation or exercise of eminent domain which is
not a Condemnation, there shall be no abatement of rent and the entire award, or
the aggregate of the separate awards to Landlord and Tenant, as the case may be
(less costs, fees and expenses reasonably incurred by Landlord and Tenant in
connection with the collection thereof) shall be paid to Tenant.
14. Ground Lease Events of Default.
(a) Tenant agrees that the following shall be considered a "Ground
Lease Event of Default": Tenant shall default in any of the covenants or
agreements herein contained to be kept, observed and performed by Tenant
(other than as a result of, or in connection with, a default by Tenant
under the Lease) and such default shall continue for thirty (30) days after
notice thereof in writing to Tenant; provided, however, that if such
default is of a nature that it cannot be reasonably cured within such
30-day period, then Tenant shall have such time as is reasonably required
to cure such default.
(b) Upon the occurrence of any Ground Lease Event of Default, it shall
be lawful for Landlord, at its election, to declare the term ended and
either with or without process of law, to re-enter and to expel, remove and
put out, Tenant and re-enter the Land again to repossess and enjoy the
same, without such re-entry and repossession working a discharge of the
rents unpaid and the covenants unperformed by Tenant prior to such
re-entry.
(c) The foregoing provisions for the termination of this Ground Lease
for any default in any of its covenants shall not operate to exclude or
suspend any other remedy of Landlord for breach of any of said covenants or
for the recovery of unpaid accrued rent, but Tenant shall not be liable for
any rent or other obligations which would have accrued under this Ground
Lease after the date of such termination had the Ground Lease not been
terminated. In the event any action is commenced for non-performance of any
provisions of this Ground Lease, Tenant agrees to pay Landlord's reasonable
attorneys' fees.
(d) Subject to the limitations set forth herein, no remedy herein
reserved to Landlord shall be considered exclusive of any other remedy, but
the same shall be cumulative and shall be in addition to every other remedy
existing at law or in equity, and every remedy given by this Ground Lease
to Landlord may be exercised from time to time and as often as occasion may
arise.
(e) Notwithstanding anything to the contrary contained herein, the
Landlord's rights and remedies and Tenant's obligations and liabilities are
subject to Section 22 of this Ground Lease.
(f) Notwithstanding anything in this Ground Lease to the contrary,
prior to the date ("Transition Date") that either (i) BL has acquired the
Tenant's interest in this Ground Lease or (ii) a third party has acquired
the Tenant's interest in this Ground Lease pursuant to Article V of the
Lease:
(A) Landlord will look solely to BL, as lessee under the Lease,
directly for the performance of all Tenant's obligations hereunder,
including, without limitation, Tenant's indemnification obligations
hereunder; provided, however, that in the event of any conflict
between any obligation of Tenant under this Ground Lease and the
obligation of BL as the lessee under the Lease, nothing herein is
intended to amend or limit BL's obligations as the lessee under the
Lease;
(B) Tenant shall have no liability to Landlord for any
obligations of Tenant arising or accruing hereunder, including,
without limitation, for any indemnity obligation hereunder;
(C) Landlord shall not have any right to declare a "Ground Lease
Event of Default" hereunder or exercise any right or remedy against
Tenant in respect thereof nor shall any "Ground Lease Event of
Default" be deemed to exist hereunder; to the extent that any of
Tenant's obligations hereunder are not performed by BL or Tenant when
and as required hereby, then so far as Tenant is concerned the
Tenant's obligation to perform the same for the benefit of the
Landlord shall be deemed waived; and
(D) Tenant's right to quiet and peaceful enjoyment of the Land
shall not be disturbed.
15. Tenant's Right to Mortgage.
Tenant may at any time and from time to time (and as many times as it
desires) mortgage, hypothecate or pledge this Ground Lease and the leasehold
estate created hereby and the interest of the Tenant in and to this Ground
Lease, together with Tenant's right, title and interest in any and all subleases
and in and to all rents due or to become due thereunder (herein called a
"Leasehold Mortgage"; and the holder of any such Leasehold Mortgage, whether or
not the same is recorded of record, is herein called a "Leasehold Mortgagee").
Landlord and Tenant agree that so long as any such Leasehold Mortgage
exists:
A. Landlord will simultaneously mail to any Leasehold Mortgagee a
copy of any notice given by Landlord to Tenant at the address given by
such Leasehold Mortgagee to Landlord for the receipt of such notice.
B. Landlord and Tenant acknowledge that the defaults or other
events described in Section 14 may be classified as (i) "Curable
Defaults" and (ii) "Non-Curable Defaults". The Non-Curable Defaults
are any defaults which are by their nature not susceptible of being
cured by a third person such as the Leasehold Mortgagee; and the
Curable Defaults are all other defaults.
C. If a Curable Default occurs and if, prior to the expiration of
the applicable grace period provided for in Section 14, the Leasehold
Mortgagee shall give to Landlord written notice that it intends to
undertake a curing of all Curable Defaults and within such grace
period the Leasehold Mortgagee commences upon a curing and thereafter
pursues to conclusion the curing of all Curable Defaults continuously
and diligently in good faith, then Landlord will not take action to
effect a termination of this Ground Lease or to re-enter or take
possession of the Land as a consequence of such Curable Default.
However, if (i) a Curable Default is of such a nature that the curing
thereof cannot be effected by the Leasehold Mortgagee until it shall
have obtained possession of the Land and (ii) prior to the effective
date of a termination of this Ground Lease by Landlord or Landlord's
re-entering or taking possession of the Land pursuant to the
provisions of Section 14, the Leasehold Mortgagee shall give to
Landlord written notice that it intends to institute foreclosure or
other legal proceedings or to exercise any of its remedies under the
Leasehold Mortgage concerned in order to gain possession of the Land
and within such grace period takes action to institute such remedies,
then Landlord will not take any action to effect a termination of this
Ground Lease or to re-enter or take possession of the Land as a
consequence of such Curable Default so long as such Leasehold
Mortgagee shall continue to prosecute its remedies under the Leasehold
Mortgage (except during any such time it may be stayed or otherwise
legally prevented from doing so) and cure all other Curable Defaults
(if any) which may occur from time to time and which are susceptible
of being cured by the Leasehold Mortgagee without its obtaining
possession of the Land and such Leasehold Mortgagee shall upon taking
possession of the Land cure such Curable Defaults within the period
reasonably required to cure the same.
D. If a Non-Curable Default occurs and (i) the Leasehold
Mortgagee shall then be in the process of curing all then existing
Curable Defaults pursuant to the provisions of subsection (C) above
and (ii) the Leasehold Mortgagee shall give to Landlord written notice
that it intends to institute foreclosure or other legal proceedings or
to exercise any of its remedies under the Leasehold Mortgage concerned
in order to gain possession of the Land, then Landlord will not take
any action to effect a termination of this Ground Lease or to re-enter
or take possession of the Land as a consequence of such Non-Curable
Default so long as such Leasehold Mortgagee shall continue diligently
to prosecute its remedies under the Leasehold Mortgage (except during
any such time it may be stayed or otherwise legally prevented from
doing so) and cure all Curable Defaults (if any) which may occur from
time to time and which are susceptible of being cured by the Leasehold
Mortgagee without its obtaining possession of the Land and such
Leasehold Mortgagee shall upon taking possession of the Land cure such
Curable Defaults within the period reasonably required to cure the
same.
E. In the event a Leasehold Mortgagee or its nominee designated
for that purpose acquires the leasehold estate pursuant to any
proceedings for foreclosure of such Leasehold Mortgage, or by a
voluntary assignment or transfer of this Ground Lease and the
leasehold estate in lieu of foreclosure or otherwise, the Leasehold
Mortgagee or its nominee or assignee as aforesaid shall be deemed an
assignee of all the rights of Tenant under this Ground Lease.
F. If this Ground Lease shall be rejected or disaffirmed pursuant
to any bankruptcy law or other law affecting creditors' rights or if
this Ground Lease is terminated for any other reason whatsoever,
Landlord will enter into a new lease of the Land with the Leasehold
Mortgagee or its nominee not less than ten (10) nor more than thirty
(30) days after the request of the Leasehold Mortgagee referred to
below, for the remainder of the term of this Ground Lease effective as
of the date of such rejection or disaffirmance or termination, upon
all the terms and provisions contained in this Ground Lease; provided
that (i) the Leasehold Mortgagee makes a written request to Landlord
for such new Ground Lease within ninety (90) days after the effective
date of such rejection or disaffirmance or termination, as the case
may be, and such written request is accompanied by a copy of such new
lease, duly executed and acknowledged by the Leasehold Mortgagee or
its nominee and (ii) upon taking possession of the Land the Leasehold
Mortgagee cures any outstanding Curable Defaults within the period
reasonably required to cure the same. Any new lease made pursuant to
this paragraph shall have the same priority with respect to other
interests in the Land as this Ground Lease. The provisions of this
paragraph shall survive the rejection or disaffirmance or termination
of this Ground Lease and shall continue in full force and effect
thereafter to the same extent as if this paragraph were a separate and
independent contract made by Landlord and the Leasehold Mortgagee. G.
So long as a Leasehold Mortgage is in effect (i) Landlord will not
accept a voluntary surrender of this Ground Lease and (ii) the Ground
Lease shall not be modified in any material respect without, in each
case, the prior written consent of the Leasehold Mortgagee. Any
violation of this paragraph shall be void.
The provisions of this Section 15 are for the benefit of any Leasehold
Mortgagee and may be relied upon and shall be enforceable by any Leasehold
Mortgagee. No Leasehold Mortgagee shall be liable upon the covenants, agreements
or obligations of Tenant contained in this Ground Lease, except as expressly
provided herein.
Landlord shall execute any instruments any such Leasehold Mortgagee
may reasonably request or require from Landlord, with respect to the provisions
of this Section 15.
16. Right to Mortgage or Sell. Landlord shall not have the right to place a
mortgage or other Lien on the Land or Landlord's interest in this Ground Lease
at any time during the term of this Ground Lease, except for Liens expressly
permitted pursuant to the terms of the Operative Documents. Landlord shall not
have the right to sell the Land, or any interest therein, so long as the Lease
is in effect.
17. Landlord's and Tenant's Certificates. Landlord and Tenant, on written
request from each other, shall execute and deliver to the other party, or any
Leasehold Mortgagee if so requested, without charge, a certificate certifying
whether or not this Ground Lease is in full force and effect, and whether it has
been modified (or if there have been modifications, stating them), and whether
or not the party executing the certificate knows of any default, breach or
violation by the other party under any of the terms of this Ground Lease, and
such other matters as may reasonably be requested.
18. Quiet Enjoyment. Landlord agrees that, so long as no Ground Lease Event
of Default exists under the terms of this Ground Lease after the Transition
Date, Tenant's quiet and peaceful enjoyment of the Land shall not be disturbed
or interfered with by Landlord, or by any person or party claiming by, through
or under Landlord.
19. Recording of Ground Lease. Upon the execution hereof, Landlord
and Tenant shall record this Ground Lease in the Chancery Clerk's Office of
Tunica County, Mississippi.
20. Inability to Perform. Anything in this Ground Lease to the contrary
notwithstanding, Tenant's inability to fulfill any of Tenant's agreements and
undertakings under this Ground Lease shall not be considered Ground Lease Events
of Default if Tenant is prevented or delayed from so doing by reason of strikes,
labor troubles, lockouts, riots, civil commotions, acts of God, governmental
restrictions, unavailability of services or materials or any other cause beyond
the control of Tenant.
21. Notices. All notices to or demands upon Landlord or Tenant desired or
required to be given under the provisions hereof shall be in writing and shall
be deemed to have been duly given upon the earlier of actual receipt or, if
mailed, three days after being deposited in the United States mails, registered
or certified, return receipt requested, postage prepaid and addressed as
follows:
If to Landlord: BL Development Corp.
13705 First Avenue North
Plymouth, Minnesota 55441
Attention: Chief Financial Officer
with a copy to:
Maslon Edelman Borman & Brand PLLP
3300 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402-4140
Attention: Russell L. Lederman, Esq.
If to Tenant: Hancock Bank
One Hancock Plaza
Gulfport, Mississippi 39502
Attention: Watson Butts
with a copy to:
Mayer, Brown & Platt
1675 Broadway
New York, New York 10019
Attention: Barry K. Gassman, Esq.
or at such other address within the continental United States as any party may
notify the other party as herein specified.
22. Liability of Tenant. Anything in this Ground Lease to the contrary
notwithstanding, Landlord acknowledges and agrees that each of the covenants,
undertakings and agreements herein made on the part of Tenant, while in form
purporting to be covenants, undertakings, and agreements of Tenant, are,
nevertheless, made and intended not as personal covenants, undertakings and
agreements by Tenant, or for the purpose of binding Tenant or its assets
personally, but are made and intended for the purpose of binding only Tenant's
interest in the Land; and that no personal liability or personal responsibility
is assumed by, nor shall at any time be asserted or enforceable against Tenant,
any Agent or any Lender (each as defined in the Lease) or any past, present or
future stockholder, subscriber of capital stock, officer, director, incorporator
or partner of Tenant, any Agent or any Lender or any successors or assigns of
any of them whether by virtue of any constitutional provision, statute or rule
of law or by enforcement of any liability or claim under or in connection with
this Ground Lease from any source other than the Tenant's interest in the Land,
it being agreed that all such personal liability is hereby waived.
23. Miscellaneous. (a) All agreements, terms, provisions and
conditions in this Ground Lease shall extend and inure to the benefit of,
and be binding upon, the successors and assigns of the parties hereto.
(b) The captions of this Ground Lease are for convenience only, and
are not to be construed as a part of this Ground Lease, and shall not be
construed as defining or limiting in any way the scope or intent of the
provisions hereof.
(c) If any term or provision of this Ground Lease shall be to any
extent held invalid or unenforceable, the remaining terms and provisions of
this Ground Lease shall not be affected thereby, but each term and
provision of this Ground Lease shall be valid and be enforced to the
fullest extent permitted by law.
(d) This Ground Lease has been delivered in, and shall in all respects
be construed and enforced in accordance with, the laws of the State of New
York, without regard to the conflicts of laws principles of such state,
except to the extent that the provisions for the creation, perfection and
enforcement of the liens and security interests created pursuant hereto
shall be governed and construed in accordance with the laws of the state
where the Land is located, including the Gaming Laws.
(e) This Ground Lease represents the entire agreement between the
parties hereto and supersedes all prior negotiations, representations or
agreements, either written or oral, including but not limited to any
letters of intent.
(f) This Ground Lease may be executed in multiple counterparts each of
which taken together shall constitute one and the same instrument.
(g) Nothing herein contained shall be deemed or constructed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the
parties hereto, it being understood and agreed that neither the method of
computation of rent, nor any other provision contained herein, nor any acts
of the parties hereto, shall be deemed to create any relationship other
than Landlord and Tenant.
(h) Any waiver given by either party with respect to performance by
the other party of any provision of this Ground Lease shall be construed
only as a waiver of the particular provision in question and only then with
respect to the particular failure to comply, and such waiver shall not be
construed as a waiver of any separate failure to comply or of any other
provisions of this Ground Lease.
(i) In the event Tenant remains in possession of the Land after
expiration of this Ground Lease without the execution of a new lease, it
shall be deemed to be occupying the Land as a tenant at sufferance at a
monthly rental equal to 125% of the then current monthly rental, and
otherwise subject to all the conditions, provisions and obligations of this
Ground Lease insofar as the same are applicable to a tenancy at sufferance.
(j) Whenever herein the singular number is used, the same shall
include the plural and words of any gender shall include each other gender.
(k) The individuals executing this instrument on behalf of Landlord
and Tenant, respectively, represent that each has been duly authorized so
to do by appropriate action taken by Landlord or Tenant, as the case may
be.
24. Subordination of Fee Interest. Landlord hereby acknowledges and agrees
that the fee ownership interest of the Landlord in the Land shall be subject and
subordinate to all right, title and interest of the Tenant under this Ground
Lease and the Lease in and to the Land, and to all right, title and interest of
any Leasehold Mortgagee in any of the foregoing, and the Landlord shall from
time to time execute such documents and instruments as requested by the Tenant
to evidence such subordination.
25. No Merger. Neither the leasehold interest in the Land and the fee
interest of Tenant in the Hotel nor the fee interest of the Landlord in the Land
and the leasehold interest of the Landlord in the Hotel shall in any way merge,
it being the express intention of the parties that such separate interests in
the Land and the Hotel shall remain separate and shall not merge during the term
of this Ground Lease.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Ground Lease as of the date first above written with actual execution on the
dates set forth in the respective acknowledgements below.
LANDLORD:
BL DEVELOPMENT CORP.
By: /s/ TIMOTHY J. COPE
Name: Timothy J. Cope
Title: Chief Financial Officer
Address: 13705 First Avenue North
Plymouth, MN 55441-5451
Telephone No.: (612) 449-7030
Telecopier No.:(612) 449-7022
TENANT:
HANCOCK BANK,
not individually but as
Trustee as aforesaid
By: /s/ C. H. GIBBONS
Name: C. H. Gibbons
Title: Vice President & Trust Officer
Address:2510 14th Street
Gulfport, MS 39501
Telephone No.: (601) 868-4400
Telecopier No.: (601) 868-4333
Landlord
CORPORATE ACKNOWLEDGMENT
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, duly identified before me, who acknowledged
that he is the Chief Financial Officer of BL Development Corp., a Minnesota
corporation, and that for and on behalf of said corporation, and as its act and
deed, he executed the above and foregoing instrument, after first having been
duly authorized by said corporation so to do.
/s/ Patricia L. Buffham
------------------------------
NOTARY PUBLIC
My Commission Expires:
- -------------------------
(Affix official seal)
Tenant
CORPORATE ACKNOWLEDGMENT
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, duly identified before me, who acknowledged that
__he is Vice President & Trust Officer, of Hancock Bank, a state banking
association, and that for and on behalf of 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 so to
do.
------------------------------
NOTARY PUBLIC
My Commission Expires:
My Commission Expires Dec. 26, 1998
- -------------------------
(Affix official seal)
This Instrument Prepared by and when recorded return to:
Mayer, Brown & Platt
1675 Broadway, Suite 1900
New York, New York 10019
Attn: Barry K. Gassman, Esq.
INDEXING INSTRUCTIONS:
This instrument affects real property situated, lying and being in the County of
Tunica, State of Mississippi, known as follows:
Section: 5, Northwest 1/4 and Southwest 1/4
Township 3 South
Range 10 West
EXHIBIT A
PROPERTY DESCRIPTION
[MISSING TEXT]