[EXECUTION COPY]
LEASE AGREEMENT AND DEED OF TRUST
dated as of May 10, 1996
between
HANCOCK BANK,
not in its individual capacity,
except as expressly stated herein,
but solely as Trustee, as Lessor,
and
BL DEVELOPMENT CORP.,
as Lessee.
ALL RIGHT, TITLE AND INTEREST OF LESSOR UNDER THIS LEASE AND THE PROPERTY RIGHTS
SUBJECT HERETO HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A LIEN AND SECURITY
INTEREST IN FAVOR OF BA LEASING & CAPITAL CORPORATION, AS AGENT ("AGENT"), UNDER
THE SECURITY AGREEMENT, DATED AS OF MAY 10, 1996, FOR THE BENEFIT OF THE AGENT
AND THE LENDERS REFERRED TO IN SUCH SECURITY AGREEMENT. THIS LEASE HAS BEEN
EXECUTED IN SEVERAL COUNTERPARTS. TO THE EXTENT, IF ANY, THAT THIS LEASE
CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS
LEASE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART
HEREOF OTHER THAN THE ORIGINAL EXECUTED "LESSOR'S COPY", WHICH SHALL BE
IDENTIFIED AS THE COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY AGENT
ON OR FOLLOWING THE SIGNATURE PAGE THEREOF.
THIS COUNTERPART IS THE ORIGINAL EXECUTED LESSOR'S COPY.
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 in Section 89-1-49 of the Mississippi Code of 1972 as amended.
INDEXING INSTRUCTIONS:
Part of the Northwest 1/4 and Southwest 1/4 of Section 5, Township 3 South,
Range 10 West of Tunica County, Mississippi.
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS; LESSEE LIABILITY . . . . . . . . . . . . . 1
ARTICLE II
LEASE OF HOTEL AND EQUIPMENT; LEASE TERM. . . . . . . . . . . 1
2.1. Acceptance and Lease of Hotel and Equipment . . . . . . . . . . . . . . . . 1
2.2. Acceptance Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3. Lease Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
RENT; QUIET ENJOYMENT; NET LEASE; SUBLEASING. . . . . . . . . . 2
3.1. Periodic Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2. Supplemental Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.3. Place and Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . 2
3.4. Late Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.5. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.6. Net Lease; No Setoff, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . 3
3.7. No Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.8. Intent of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
POSSESSION AND SUBLEASING . . . . . . . . . . . . . . 6
ARTICLE V
LEASE TERMINATION . . . . . . . . . . . . . . . . 8
5.1. Early Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.2. Termination and Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VI
DISCLAIMER AND ASSIGNMENT OF WARRANTIES. . . . . . . . . . . 9
6.1. Disclaimer of Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.2. Assignment of Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE VII
MAINTENANCE AND REPAIR;
ALTERATIONS ADDITIONS AND SUBSTITUTIONS. . . . . . . . . . . 10
7.1. Maintenance and Repair; Compliance With Law . . . . . . . . . . . . . . . . 10
7.2. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.3. Replacement and Substitution. . . . . . . . . . . . . . . . . . . . . . . . 11
7.4. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7.5. Maintenance and Repair Reports. . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VIII
USE; UTILITY CHARGES. . . . . . . . . . . . . . . . 12
8.1. Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.2. Utility Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IX
CASUALTY; REPLACEMENT; INSURANCE. . . . . . . . . . . . . 13
9.1. Casualty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
9.2. Non-Casualty Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.3. Required Coverages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9.4. Delivery of Insurance Certificates. . . . . . . . . . . . . . . . . . . . . 17
ARTICLE X
LEASE EVENTS OF DEFAULT. . . . . . . . . . . . . . . 18
10.1. Lease Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.2. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.3. Waiver of Certain Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.4. Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.5. Remedies Cumulative; No Waiver; Consents. . . . . . . . . . . . . . . . . . 26
ARTICLE XI
LESSOR'S RIGHT TO CURE . . . . . . . . . . . . . . . 27
11.1. Lessor's Right to Cure Lessee's Lease Defaults. . . . . . . . . . . . . . . 27
ARTICLE XII
WARRANT OF TITLE; EASEMENTS; ADDITIONAL FINANCINGS . . . . . . . . 27
12.1. Warrant of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
12.2. Grants and Releases of Easements; Lessor's Waivers. . . . . . . . . . . . . 28
12.3. Additional Financings . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
ARTICLE XIII
ASSIGNMENTS. . . . . . . . . . . . . . . . . . 29
ARTICLE XIV
GRANT OF LIEN . . . . . . . . . . . . . . . . . 29
14.1. Grant of Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
14.2. Retention of Title or Proceeds in the Case of Default . . . . . . . . . . . 33
ARTICLE XV
MISCELLANEOUS . . . . . . . . . . . . . . . . . 33
15.1. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.3. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.4. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.5. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.6. Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.7. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.8. Captions; Table of Contents.. . . . . . . . . . . . . . . . . . . . . . . . 34
15.9. Schedules and Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
15.10. No Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Exhibit A - Form of Lease Supplement
Exhibit B - Description of Hotel Site
Appendix I - Definitions
LEASE AGREEMENT AND DEED OF TRUST
This LEASE AGREEMENT AND DEED OF TRUST (as amended, supplemented, or
otherwise modified from time to time, this "Lease"), dated as of May 10, 1996,
is between HANCOCK BANK, not in its individual capacity, except as expressly
stated herein, but solely as Trustee under the Trust Agreement, as Lessor
("Lessor"), and BL DEVELOPMENT CORP., a Minnesota corporation, as Lessee
("Lessee").
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, hereby
agree as follows:
ARTICLE I
DEFINITIONS; LESSEE LIABILITY
For all purposes hereof, the capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in Appendix 1 to that
certain Participation Agreement, dated as of May 10, 1996 (the "Participation
Agreement"), among Grand Casinos, Inc. a Minnesota corporation, and certain of
its subsidiaries, as Guarantors; Lessee; Lessor; the Lenders, Co-Agents and Lead
Manager identified therein; and BA Leasing & Capital Corporation, as Arranger
and Agent. A true copy of such Appendix 1 is attached hereto and incorporated
herein. All obligations imposed on the "Lessee" in this Lease shall be the full
recourse liability of Lessee.
ARTICLE II
LEASE OF HOTEL, EQUIPMENT AND HOTEL SITE; LEASE TERM
SECTION 2.1. Acceptance and Lease of Hotel, Equipment and Hotel Site.
(a) On each Advance Date, Lessor, subject to the satisfaction or
waiver of the applicable conditions set forth in Article III of the
Participation Agreement, shall accept under a Certificate of Acceptance the
Hotel and Equipment theretofore delivered, and simultaneously lease to Lessee
hereunder, and Lessee shall lease from Lessor hereunder, the Hotel and Equipment
for the term of the applicable Lease Supplement.
(b) Subject to the terms and conditions of this Lease, on the date
hereof the Lessor shall demise and sublease to the Lessee hereunder for the
Lease Term the Lessor's interest in the Hotel Site, and Lessee hereby agrees,
expressly for the direct benefit of the Lessor, to sublease from the Lessor for
the Lease Term the Lessor's interest in the Hotel Site.
(c) A description of the Hotel Site upon which the Hotel will be
constructed and certain of the Equipment located is attached to this Lease as
Exhibit B and incorporated herein.
SECTION 2.2. Acceptance Procedure. Lessee hereby agrees that the
execution and delivery by Lessee of this Lease and a Certificate of Acceptance
pursuant to Section 3.4(d) or 3.6(b) of the Participation Agreement, as the case
may be (appropriately completed) shall, without further act, irrevocably
constitute acceptance by Lessee on behalf of itself and Lessor of the Hotel and
Equipment which are the subject of a Certificate of Acceptance and the Lease
Supplement referred to in the Certificate of Acceptance for all purposes of this
Lease, such Lease Supplement and the other Operative Documents.
SECTION 2.3. Lease Term. The term of this Lease (the "Lease Term")
shall commence on the date of execution of this Lease by Lessor and Lessee, and
shall expire on the Final Maturity Date. Unless earlier terminated, the term of
each Lease Supplement relating to the Equipment and the Hotel shall consist of
(i) an Interim Period and (ii) a Base Period.
SECTION 2.4. Title. The Hotel Site is leased to the Lessee without
any representation or warranty, express or implied, by the Lessor and subject to
the rights of the parties in possession, the existing state of title (including
Permitted Liens other than Lessor Liens) and all applicable Requirements of Law.
Lessee shall in no event have any recourse against the Lessor for any defect in
or exception to title to the Hotel Site other than to the extent resulting from
Lessor Liens.
ARTICLE III
RENT; QUIET ENJOYMENT; NET LEASE; SUBLEASING
SECTION 3.1. Periodic Rent. During the Lease Term, Lessee shall pay
to Lessor Periodic Rent on each Payment Date in the amount determined in
accordance with the definition of "Periodic Rent".
SECTION 3.2. Supplemental Rent. During the Lease Term, Lessee shall
pay to Lessor, or to whomever shall be entitled to payment thereof as expressly
provided herein or in any other Operative Document (and Lessor hereby directs
Lessee, on behalf of Lessor, so to pay any such other Person) any and all
Supplemental Rent promptly as the same shall become due and payable, and, in the
event of any failure on the part of Lessee to pay any Supplemental Rent, Lessor
shall have all rights, powers and remedies provided for herein or by law or in
equity or otherwise in the case of nonpayment of Periodic Rent. Lessee hereby
reaffirms its obligation to pay as Supplemental Rent (i) an amount equal to
Additional Costs as the same become due and payable, (ii) all amounts determined
to be due and payable pursuant to Section 5.1 of the Trust Agreement in
accordance with its terms and (iii) any Premium that becomes due and payable
pursuant to the Section 2.4(d) of the Loan Agreement.
SECTION 3.3. Place and Manner of Payment. Subject to Section 3.2,
Rent and all other sums due to Lessor, Agent or any Lender hereunder shall be
paid in accordance with Section 2.8 of the Participation Agreement.
SECTION 3.4. Late Payment. If any Periodic Rent shall not be paid
when due, Lessee shall pay to Lessor, or if any Supplemental Rent payable to or
on behalf of or for the account of Lessor, Trustee, any Lender, Agent or any
other Indemnitee is not paid when due, Lessee shall pay to whomever shall be
entitled thereto, in each case as Supplemental Rent, interest at the Overdue
Rate on such overdue amount from and including the due date (not taking into
account any grace period) thereof to but excluding the Business Day of payment
thereof.
SECTION 3.5. Quiet Enjoyment. Subject to the rights of Lessor
contained in Article X and the other terms of the Operative Documents to which
Lessee is a party, Lessee shall peaceably and quietly have, hold and enjoy the
Leased Property for the Lease Term, free of any claim or other action by Lessor
or anyone claiming by, through or under Lessor (other than Lessee) with respect
to any matters arising from and after the Initial Advance Date. Such right of
quiet enjoyment is independent of, and shall not affect Lessor's rights
otherwise to initiate legal action to enforce the obligations of Lessee under
this Lease.
SECTION 3.6. Net Lease; No Setoff, Etc. THIS LEASE SHALL CONSTITUTE
A NET LEASE AND, NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE, IT IS
INTENDED THAT PERIODIC RENT AND SUPPLEMENTAL RENT SHALL BE PAID WITHOUT
COUNTERCLAIM, SETOFF, DEDUCTION OR DEFENSE OF ANY KIND AND WITHOUT ABATEMENT,
SUSPENSION, DEFERMENT, DIMINUTION OR REDUCTION OF ANY KIND, AND LESSEE'S
OBLIGATION TO PAY ALL SUCH AMOUNTS, THROUGHOUT THE LEASE TERM IS ABSOLUTE AND
UNCONDITIONAL. The obligations and liabilities of Lessee hereunder shall in no
way be released, discharged or otherwise affected for any reason, including,
without limitation, to the maximum extent permitted by law: (a) any defect in
the condition, merchantability, design, construction, quality or fitness for use
of any portion of the Hotel Site, the Hotel or any item of Equipment, or any
failure of any portion of the Hotel Site, the Hotel or any item of Equipment to
comply with all Applicable Laws, including any inability to use any portion of
the Hotel Site, the Hotel or any item of Equipment by reason of such
non-compliance; (b) any damage to, abandonment, loss, destruction, requisition,
taking or contamination of or Release from any portion of the Hotel Site, the
Hotel or any item of Equipment, including eviction; (c) any restriction,
prevention or curtailment of or interference with any use of any portion of the
Hotel Site, the Hotel or any item of Equipment, including eviction; (d) any
defect in title to or rights to the Hotel Site or any Lien on such title or
rights or on the Hotel Site; (e) the attachment of any Lien of any third party
to any portion of the Hotel Site, the Hotel or any item of Equipment; (f) any
prohibition or restriction of or interference with Lessee's use of any or all of
the Hotel Site, the Hotel or the Equipment by any Person; (g) any change,
waiver, extension, indulgence or other action or omission or breach in respect
of any obligation or liability of or by Lessor, Agent or any Lender; (h) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceedings relating to Lessee, Lessor, Agent, any
Lender or any other Person, or any action taken with respect to this Lease by
any trustee or receiver of Lessee, Lessor, Agent, any Lender or any other
Person, or by any court, in any such proceeding; (i) any claim that Lessee has
or might have against any Person, including, without limitation, Lessor, Agent
or any Lender; (j) any failure on the part of Lessor to perform or comply with
any of the terms of this Lease, any other Operative Document or of any other
agreement whether or not related to the transactions contemplated by the
Operative Documents; (k) any invalidity or unenforceability or disaffirmance
against or by Lessee of this Lease or any provision hereof or any of the other
Operative Documents or any provision of any thereof; (l) the impossibility of
performance by Lessee, Lessor or both; (m) any action by any court,
administrative agency or other Governmental Authority; (n) any restriction,
prevention or curtailment of or any interference with the construction or any
use of any portion of the Hotel Site, the Hotel or any item of Equipment; or (o)
any other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Lessee shall have notice or knowledge of any of the foregoing.
Except as specifically set forth in Articles IV or X of this Lease, this Lease
shall be noncancellable by Lessee for any reason whatsoever, and Lessee, to the
extent permitted by Applicable Laws, waives all rights now or hereafter
conferred by statute or otherwise to quit, terminate or surrender this Lease, or
to any diminution, abatement or reduction of Rent payable by Lessee hereunder.
If for any reason whatsoever this Lease shall be terminated in whole or in part
by operation of law or otherwise, except as expressly provided in Articles IV or
X of this Lease, Lessee shall, unless prohibited by Applicable Laws, nonetheless
pay to Lessor (or, in the case of Supplemental Rent, to whomever shall be
entitled thereto) an amount equal to each Rent payment at the time and in the
manner that such payment would have become due and payable under the terms of
this Lease if it had not been terminated in whole or in part, and in such case,
so long as such payments are made and no Lease Event of Default shall have
occurred and be continuing, Lessor will deem this Lease to have remained in
effect. Each payment of Rent made by Lessee hereunder shall be final and, absent
manifest error in the determination of the amount thereof, Lessee shall not seek
or have any right to recover all or any part of such payment from Lessor, Agent
or any party to any agreements related thereto for any reason whatsoever. Lessee
assumes the sole responsibility for the condition, use, operation, maintenance
and management of the Hotel Site, the Hotel and the Equipment, and Lessor shall
have no responsibility in respect thereof and shall have no liability for damage
to the property of Lessee or any subtenant of Lessee or any property leased
hereunder or subleased to any subtenant of Lessee on any account or for any
reason whatsoever other than by reason of Lessor's willful misconduct or gross
negligence or breach of any of its obligations under any Operative Document.
SECTION 3.7. No Bar. Notwithstanding the foregoing, nothing set
forth herein shall bar, limit, preclude, prevent, stay or otherwise adversely
affect Lessee's right or ability to bring and pursue any action for monetary
damages against Lessor or any other Person for any breach or alleged breach of
its obligations hereunder or under any other Operative Document.
SECTION 3.8. Intent of the Parties. Lessor and Lessee further
intend and agree that this Lease is a conditional sales agreement and that, with
respect to that portion of the Leased Property constituting Equipment, for the
purpose of securing Lessee's obligations for the repayment of the Loans from
Lessor and the Lenders to Lessee, (i) the Lease shall also be deemed to be a
security agreement and financing statement within the meaning of Article 9 of
the UCC; (ii) the conveyance provided for hereby shall be deemed to be a grant
by Lessee to Lessor, for the benefit of the Lenders, of a lien and security
interest in all of Lessee's present and future right, title and interest in and
to such portion of the Hotel Site, the Hotel and the Equipment, including but
not limited to Lessee's fee and/or leasehold estate therein and all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
investments, securities or other property, whether in the form of cash,
investments, securities or other property to secure such loans, effective on the
date hereof, to have and to hold such interests in the Hotel Site, the Hotel and
the Equipment unto Lessor, for the benefit of the Lenders and their respective
successors and assigns, forever, provided always that these presents are upon
the express condition that, if all amounts due under the Lease and the other
Operative Documents shall have been paid and satisfied in full, then this
instrument and the estate hereby granted shall cease and become void; (iii) the
possession by Lessor of notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-305 of the UCC; and (iv) notifications to Persons
holding such property, and acknowledgements, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of Lessee shall be
deemed to have been given for the purpose of perfecting such security interest
under Applicable Law. Lessor and Lessee shall, to the extent consistent with the
Lease, take such actions and execute, deliver, file and record such other
documents, financing statements, mortgages and deeds of trust as may be
necessary to ensure that the security interest and lien created in the Hotel
Site, the Hotel and the Equipment in accordance with this Lease will be a
perfected lien and security interest with priority over all Liens other than
Permitted Liens, under Applicable Law and will be maintained as such throughout
the Lease Term.
ARTICLE IV
POSSESSION AND SUBLEASING
LESSEE SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR,
SUBLEASE ANY OR ALL OF THE HOTEL SITE, THE HOTEL OR EQUIPMENT OR ASSIGN,
TRANSFER OR ENCUMBER ITS RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER, AND ANY
ATTEMPTED SUBLEASE, ASSIGNMENT, TRANSFER OR ENCUMBERING BY LESSEE SHALL BE NULL
AND VOID, except as provided hereafter in this Article IV or pursuant to a
transaction permitted under Section 5.2 of the Participation Agreement. Lessee
may, with Lessor's and all of the Lender's prior written consent, which shall
not be unreasonably withheld or delayed, sublease or assign both the Hotel Site
and the Hotel, the Non-Gaming Equipment or the Gaming Equipment, each as an
integrated whole, if such sublease or assignment permitted by this Article IV (a
"Sublease") (a) is expressly subject and subordinate to all of the provisions of
this Lease and the rights and interests of Lessor and the Lenders hereunder in
respect of the Hotel or Equipment covered by such Sublease upon the occurrence
of an Event of Default thereunder or hereunder, (b) expressly requires the Hotel
or Equipment subject thereto to be returned as directed by Lessor or the
Required Lenders upon notice to such assignee or sublessee that an Event of
Default exists and (c) expressly prohibits any further sublease or assignment of
the Hotel or Equipment subject thereto. Lessee shall remain primarily liable for
its obligations under this Lease notwithstanding the existence of any such
Sublease. All of Lessee's right, title and interest in, to and under such
Sublease shall be pledged by Lessee to Lessor, as collateral for Lessee's
obligations under this Lease, and Lessee shall, at its expense, do any further
act and execute, acknowledge, deliver, file, register and record any further
documents which Lessor or any Lender may reasonably request in order to create,
perfect, preserve and protect Lessor's security interest in such Sublease.
Subject to the conditions set forth above, the Lessee may sublease
space in the Hotel, provided that the aggregate amount of such subleased space
does not exceed 33% of the aggregate space in the Hotel, and provided that (i)
the proposed subtenant shall be engaged in a business complementary to the
business of Lessee, and propose to use the subleased space in a manner in
keeping with the standards set forth in this Lease, (ii) the character of the
business to be conducted or the proposed use of the subleased space by the
proposed subtenant shall not violate any provision or restriction herein
relating to the use or occupancy of the Hotel, (iii) the Sublease contains fair
market rental terms reflective of the then current market rates for comparable
space of similar size being maintained for such business in the applicable
leasing market in which the Hotel is located ("Fair Market Rental Terms"), (iv)
the Sublease does not provide for disproportionately skewed rental payments
throughout the term of the Sublease not reflective of Fair Market Rental Terms
and (v) Lessee is not required to, and there exists no option in favor of the
proposed subtenant which could require Lessee to, perform any tenant finish
improvement work after the later of (x) the Turnover Date (as defined below) and
(y) the Lease Termination Date.
In the case of any proposed Sublease, not less than thirty days
prior to the consummation of such Sublease, Lessee shall deliver to Lessor each
of the following: (i) the identity of the proposed subtenant establishing that
the proposed subtenant and Sublease satisfy the criteria set forth above, (ii) a
copy of the proposed Sublease, and (iii) the non-disturbance and attornment
agreement for execution and delivery by Lessor and, if applicable, Agent. Each
Sublease shall contain the following language:
"The Tenant hereunder agrees that this Lease is subject and subordinate to
the lease under which the Landlord hereunder occupies the Hotel (the
"Overlease", with the landlord under the Overlease and its successors and
assigns in interest to the Hotel or this Lease being hereinafter referred
to as the "Overlandlord"), and that in the event of the termination of the
Overlease or in the event the Overlandlord terminates the Landlord's right
of possession under the Overlease (the date on which either such
termination becomes effective being referred to herein as the "Turnover
Date"), the Tenant hereunder will attorn to the Overlandlord and pay the
Overlandlord all of the rents and other monies required to be paid by the
Tenant hereunder, and perform all of the terms, covenants, conditions and
obligations contained in this Lease, and the Overlandlord shall recognize
Tenant hereunder; and this Lease shall continue as a direct lease between
the Tenant hereunder and Overlandlord upon all of the terms and conditions
hereof except that in no event shall Overlandlord have any obligation to
perform any obligation of the Landlord hereunder with respect to
obligations of Overlandlord (or any successor Overlandlord) hereunder
arising after the Turnover Date which shall be without recourse to
Overlandlord (other than the interest of the Overlandlord in the property
demised by the Lease.)"
At the request of Lessee, Lessor and Agent shall deliver to Lessee, for the
benefit of the subtenant, within ten Business Days after Lessee's request
therefor, a non-disturbance and attornment agreement on Lessor's standard form,
duly executed and acknowledged by Lessor and Agent, and Lessee shall cause such
subtenant to execute and acknowledge such agreement and return fully executed
and acknowledged counterparts thereof to Lessor and Agent.
ARTICLE V
LEASE TERMINATION
SECTION 5.1. Early Termination. On any date after the commencement
of the last commencing Base Period, Lessee may, at its option, upon at least 30
days' advance written notice to Lessor, either:
(a) Purchase all (but not less than all) of the Hotel and the
Equipment for an amount equal to the sum of (i) accrued and unpaid
Rent payable on or before such date, (ii) the Lease Balance (after
giving effect to any payments pursuant to clause (i)), (iii) any
Premium payable in respect of the Notes, and (iv) all other fees
and expenses and other amounts (including all Supplemental Rent)
then due and payable pursuant to this Lease and the other Operative
Documents; or
(b) Purchase the Hotel and Hotel Equipment for an amount equal
to the sum of (i) the Lease Supplement Balances relating to the
Hotel and Hotel Equipment, (ii) any Premium payable in respect of
the Notes, and (iii) all other fees and expenses and other amounts
(including all Supplemental Rent) then due and payable pursuant to
this Lease and the other Operative Documents.
SECTION 5.2. Termination and Transfer. Upon payment in full in cash
of all amounts then due and owing hereunder on the Lease Termination Date, or if
the Lease Supplement Balance relating to the Gaming Equipment has been paid in
full as of the last day of the term of such Lease Supplement, Lessor shall
release the Leased Property then subject to the Lease on the Lease Termination
Date, or the Gaming Equipment on the expiration of the related Lease Supplement,
from the Lien created by this Lease and transfer all of Lessor's right, title
and interest thereto to Lessee ("AS IS" and without any representations or
warranties and with the disclaimers set forth in Section 6.1, except that such
Leased Property is free and clear of Lessor Liens), all at Lessee's sole cost
and expense.
ARTICLE VI
DISCLAIMER AND ASSIGNMENT OF WARRANTIES
SECTION 6.1. Disclaimer of Warranties. LESSEE ACKNOWLEDGES AND
AGREES THAT, ALTHOUGH LESSOR WILL OWN AND HOLD TITLE TO THE HOTEL SITE, THE
HOTEL AND EQUIPMENT THAT ARE THE SUBJECT OF LEASE SUPPLEMENTS, LESSEE IS SOLELY
RESPONSIBLE UNDER THE TERMS OF THE CONSTRUCTION AGENCY AGREEMENT FOR THE DESIGN,
DEVELOPMENT, BUDGETING AND CONSTRUCTION OF THE HOTEL AND EQUIPMENT AND ANY
ALTERATIONS. The Hotel Site, the Hotel and Equipment are let by Lessor "AS IS"
in their present or then condition, as the case may be, subject to (a) any
rights of any parties in possession thereof, (b) the state of the title thereto
existing at the time Lessor acquired its interest in the Hotel Site, the Hotel
and Equipment, (c) any state of facts which a physical inspection might show,
(d) all Applicable Laws, and (e) any violations of Applicable Laws which may
exist at the commencement of the term of the applicable Lease Supplement. Lessee
has examined the Hotel Site, the Hotel and Equipment (insofar as Lessor is
concerned) has found the same to be satisfactory. NEITHER LESSOR, AGENT NOR ANY
LENDER HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO
THE TITLE TO THE HOTEL SITE, THE HOTEL OR THE EQUIPMENT OR TO THE VALUE,
MERCHANTABILITY, HABITABILITY, CONDITION, OR FITNESS FOR USE OF THE SAME, OR ANY
PART THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE HOTEL SITE, THE HOTEL OR EQUIPMENT OR ANY PART
THEREOF, AND NEITHER LESSOR, AGENT NOR ANY LENDER SHALL BE LIABLE FOR ANY
LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE HOTEL OR
EQUIPMENT, OR ANY PART THEREOF, TO COMPLY WITH ANY APPLICABLE LAWS, except that
Lessor hereby represents and warrants that the Hotel Site, the Hotel and
Equipment are and shall be free of Lessor Liens (such Lessor representation and
warranty being made by (x) the Bank with respect to any Lessor Liens
attributable to the Bank, and (y) Trustee with respect to any Lessor Liens
attributable to Trustee). Lessee has been afforded full opportunity to inspect
the Hotel Site, the Hotel and Equipment, is satisfied with the results of its
inspections and is entering into this Lease solely on the basis of the results
of its own inspections, and all risks incident to the matters discussed in the
preceding sentence, as between Lessor, Agent and the Lenders, on the one hand,
and Lessee, on the other, are to be borne by Lessee. The provisions of this
Article VI have been negotiated, and, except to the extent otherwise expressly
stated, the foregoing provisions are intended to be a complete exclusion and
negation of any representations or warranties by any of Lessor, Agent or the
Lenders, express or implied, with respect to the Hotel Site, the Hotel and
Equipment (or any interest therein), that may arise pursuant to any law now or
hereafter in effect, or otherwise.
SECTION 6.2. Assignment of Warranties. Lessor assigns to Lessee, to
the extent assignable, all of its interest, if any, in any warranties, covenants
and representations of any manufacturer or vendor of any item of Equipment;
provided that such assignment shall be effective only when no Event of Default
exists; and provided, further, that any action taken by Lessee by reason thereof
shall be at the expense of Lessee and shall be consistent with Lessee's
obligations pursuant to this Lease.
ARTICLE VII
MAINTENANCE AND REPAIR;
ALTERATIONS ADDITIONS AND SUBSTITUTIONS
SECTION 7.1. Maintenance and Repair; Compliance With Law. Without
limiting Lessee's obligations under Section 5.11 of the Participation Agreement
or Section 3.7 of the Construction Agency Agreement, Lessee, at its own expense,
shall at all times (a) maintain the Hotel in a first class condition (ordinary
wear and tear excepted) and make all necessary repairs thereto, of every kind
and nature whatsoever, whether interior or external, ordinary or extraordinary,
structural or non-structural or foreseen or unforeseen, in each case as required
by all Requirements of Law, the standards imposed by insurance policies required
to be maintained hereunder with respect to the Hotel and on a basis consistent
with the repair and maintenance of properties comparable in type and location to
the Hotel, but in any case the Hotel shall be maintained at least in conformity
with the maintenance and repair guidelines of Lessee and its Affiliates for
similar property owned or leased by them, and (b) maintain the Equipment in good
and safe order, operating condition and repair (ordinary wear and tear
excepted), substantially in conformance with the maintenance and repair
standards and procedures as are set forth in the manufacturer's manuals
pertaining to the Equipment and as otherwise required to enforce claims against
each vendor or manufacturer of each item of Equipment and in compliance in all
material respects with Applicable Law and the standards imposed by insurance
policies required to be maintained hereunder with respect to the Equipment, but
in any event such Leased Property shall be maintained at a standard that is no
less than the standard used by the Lessee for similar hotels and equipment it
owns or leases.
In addition, Lessee, at its own expense, shall make all necessary
or appropriate repairs, replacements, substitutions and modifications in respect
of the Leased Property (or any component thereof) which may be required to keep
the Leased Property in the condition required by clause (a) or (b) above.
SECTION 7.2. Alterations.
(a) If any item of Equipment or individual component thereof or,
after the Completion Date, the Hotel or individual component
thereof, is required to be altered, added to, replaced, improved or
modified in order to comply with Applicable Law (a "Required
Alteration"), Lessee shall notify Lessor and diligently proceed to
make such Required Alteration at its own expense.
(b) Lessee, at its own expense, may make any alteration,
addition, replacement, improvement or modification to the Hotel or
any item of Equipment (a "Permitted Alteration"), or remove any
part that becomes worn out, broken or obsolete, if Lessee continues
to be in compliance with Section 7.1 and such action, when
completed, will be of such character as not to materially adversely
affect (i) the current fair market value of the Hotel or item of
Equipment, (ii) the originally anticipated use or function thereof,
as applicable, and (iii) the originally anticipated residual value
of the Hotel or item of Equipment. In addition, the Permitted
Alteration shall not cause the Hotel or item of Equipment to become
suitable for use only by Lessee.
(c) All Alterations shall be completed in a commercially
reasonable manner and shall not, when completed, violate the terms
of any restriction, easement, condition, covenant or other matter
affecting the Land or the Leased Property.
(d) Neither Lessor nor Agent need inquire into or confirm that
Alterations were made in conformity with these requirements.
SECTION 7.3. Replacement and Substitution. Lessee may replace an
item of Equipment subject to this Lease with a replacement item of equipment
that meets the suitability standards set forth in Section 9.1(d). Lessee may
request the replacement of an item of Equipment by delivery of a replacement
notice to Lessor at least 20 days prior to the date of the proposed
substitution. Upon a permitted substitution of equipment pursuant to this
Section 7.3 and subject to receipt of approval from the Gaming Authorities with
respect to the Gaming Equipment, as required by Applicable Law, Lessor shall
execute and deliver to Lessee an assignment of purchase orders and a bill of
sale (without representations or warranties, except that the substituted item is
free and clear of all Lessor Liens) and such other documents as may be required
to release the substituted item from the terms of this Lease, all at Lessee's
expense. Leased items of Equipment that have been substituted or replaced
pursuant to this Section 7.3 shall become the property of Lessee, and title
thereto shall automatically vest in Lessee upon such permitted substitution or
replacement.
SECTION 7.4. Removal. No Required Alteration may be removed or
severed from the Hotel or item of Equipment to which it is attached (unless no
longer required by Applicable Law so long as clauses (i) and (ii) below are
satisfied). A Permitted Alteration (or component thereof) may be removed by
Lessee at its expense if (i) it is readily removable without causing material
damage to the Hotel or item of Equipment to which it is attached, (ii) the
removal does not violate Applicable Law and (iii) no Default or Event of Default
is continuing.
SECTION 7.5. Maintenance and Repair Reports. Lessee shall keep
maintenance and repair reports in sufficient detail, and as customary for owners
or operators of hotels or casinos, to indicate the nature and date of major work
done. Such reports shall be kept on file by Lessee at its offices during the
Lease Term, and shall be made available to Lessor upon reasonable request.
Lessee shall give notice to Lessor and Agent of any Condemnation or Casualty the
cost to repair which is reasonably expected by Lessee to exceed $500,000,
promptly after Lessee has knowledge thereof.
ARTICLE VIII
USE; UTILITY CHARGES
SECTION 8.1. Use. Without limiting Lessee's obligations under
Section 5.11 of the Participation Agreement or Construction Agent's obligations
under Sections 3.6 or 3.7(a) of the Construction Agency Agreement, Lessee shall
use and operate the Leased Property in compliance with any and all Applicable
Laws. Lessee shall procure and maintain in effect all licenses, registrations,
certificates, permits, approvals and consents required by Applicable Law or any
Governmental Authority in connection with the ownership, delivery, installation,
use and operation of the Leased Property. The Leased Property will at all times
be and remain in the possession and control of Lessee, subject, however, to
Articles IV and X. The Hotel shall be located on the Hotel Site, and the
Equipment shall in no event be located outside of (i) the Resort or the Land
without prior written notice to Lessor, (ii) the State of Mississippi without
prior written notice to Lessor and the taking (before such relocation) of all
actions necessary to maintain the perfection of the security interest of Lessor
and Agent therein, and (iii) the continental United States.
SECTION 8.2. Utility Charges. Lessee shall pay or cause to be paid
all charges for electricity, power, gas, oil, water, telephone, sanitary sewer
service and all other rents and utilities used in or on the Leased Property
during the Lease Term. Lessee shall be entitled to receive any credit or refund
with respect to any utility charge paid by Lessee and the amount of any credit
or refund received by Lessor on account of any utility charges paid by Lessee,
net of the costs and expenses reasonably incurred by Lessor in obtaining such
credit or refund, shall be promptly paid over to Lessee.
ARTICLE IX
CASUALTY; REPLACEMENT; INSURANCE
SECTION 9.1. Casualty.
(a) If at any time before the Completion Date the Hotel suffers
a Casualty, Lessee and Lessor agree that the provisions of the
Construction Agency Agreement shall apply.
(b) If the Hotel suffers a Casualty on or after the Completion
Date, Lessee shall (i) give prompt written notice of such
occurrence and the date thereof to Lessor and (ii) purchase the
Hotel on the next Payment Date at least 60 days after such Casualty
(but in no event later than the Lease Termination Date) for the
related Lease Supplement Balance. All Casualty Recoveries held by
Lessor shall be applied on the next following Payment Date in
reduction of Lessee's obligations to Lessor. Lessor shall remit to
Lessee any such Casualty Recoveries which it has received and which
remain after reducing the Lease Balance to zero.
(c) If a Casualty occurs with respect to an item or items of
Equipment, Lessee shall (i) give prompt written notice of such
occurrence and the date thereof to Lessor and (ii) either (A)
replace such item or items of Equipment with respect to which the
Casualty has occurred pursuant to the following provisions of
Section 9.1(d) or (B) purchase such item or items of Equipment from
Lessor, no later than the next Payment Date occurring at least 60
days after such Casualty (but in no event later than the Lease
Termination Date), at a purchase price equal to the Casualty Item
Amount. The Lease Supplement Balance of the Lease Supplement to
which the item or items of Equipment were subject shall be reduced,
upon payment by Lessee, by an amount equal to the Casualty Item
Amount.
(d) If any item of Equipment is to be replaced, no later than
the earlier of (i) 60 days after the occurrence of a Casualty or
(ii) the Lease Termination Date, Lessee will substitute equipment
meeting the suitability standards set forth in this Section 9.1(d)
for the item of Equipment suffering the Casualty. To be suitable as
a replacement, such replacement item of equipment must be of the
same general type, year of construction (or a later year of
construction), function, utility, state of repair and operating
condition as the item of Equipment suffering the Casualty, must
have a fair market value of not less than the fair market value
(immediately preceding the Casualty assuming that such item of
Equipment had been maintained in accordance with Article VII) of
the item of Equipment suffering the Casualty, and be free and clear
of any Liens other than Permitted Liens. Lessee shall cause a Bill
of Sale and a Certificate of Acceptance to be executed and
delivered to Lessor in order to subject such replacement item of
Equipment to this Lease, and upon such execution and delivery and
the receipt by Lessor, Agent and the Lenders of (i) a certificate
of insurance in accordance with Section 9.4 evidencing Lessee's
compliance with the insurance provisions of Section 9.3 with
respect to such replacement item of Equipment, and (ii) an opinion
of counsel to Lessor in form and substance reasonably satisfactory
to the Agent and the Lenders to the effect that properly prepared
financing statements have been filed and recorded in all public
offices where necessary to perfect the security interest of Lessor
in the replacement item of Equipment, that the description of the
replacement item of Equipment is adequate and that no other filing
or recording or giving of notice with or to any other Governmental
Authority is necessary to perfect Lessor's security interest in
such replacement item of Equipment. Such replacement item of
Equipment shall be deemed an item of Equipment for all purposes
hereof.
(e) If no Event of Default exists and Lessee elects to replace
any item of Equipment suffering a Casualty, Lessee shall be
entitled to receive from Lessor the Casualty Recoveries with
respect thereto, to be used to reimburse Lessee for the cost of
replacement of such item of Equipment after Lessee fully applies
the Casualty Recoveries properly received by it in replacement of
such item of Equipment pursuant to Section 9.1(f). Lessor, subject
to the rights of any insurer insuring such item of Equipment as
provided herein, shall execute and deliver to Lessee, or to its
assignee or nominee, a quitclaim bill of sale (without
representations or warranties except that such item of Equipment is
free and clear of Lessor Liens) for such item of Equipment, and
such other documents as may be required to release such item of
Equipment from the terms of this Lease, in such form as may
reasonably be requested by Lessee. All fees, costs and expenses
relating to a substitution as described herein shall be borne by
Lessee.
(f) All Casualty Recoveries in excess of $2,000,000 in respect
of a Casualty to the Hotel or any item of Equipment shall be paid
directly to Lessor for deposit into the Account, or if paid to
Lessee, such excess funds shall be immediately paid by Lessee to
Lessor for deposit into the Account; provided, however, that all
such excess funds received by Lessor in respect of a Casualty to
the Hotel or any item of Equipment occurring before the
Construction Completion Date shall be applied by Lessor in
accordance with the Construction Agency Agreement. Subject to the
proviso of the preceding sentence, if an Event of Default exists,
Lessor may retain all Casualty Recoveries as cash collateral or, if
no Event of Default exists, Lessee shall be entitled to apply all
Casualty Recoveries in accordance with Section 9.1(b) or (e), as
applicable, and any balance remaining after compliance with Section
9.1(b) or (e), as the case may be, shall be retained by or returned
to Lessee. Lessee shall not be entitled to any Casualty Recoveries
in excess of $2,000,000 until it applies all amounts received in
relation to such Casualty Recovery equal to such amount in repair
or replacement of the affected item of Equipment or Hotel.
SECTION 9.2. Non-Casualty Losses.
(a) If at any time before the Construction Completion Date an
item of Equipment or the Hotel suffers any condemnation, loss,
physical harm or damage not constituting a Casualty (a
"Non-Casualty Loss"), Lessee and Lessor agree that the provisions
of the Construction Agency Agreement shall apply.
(b) If any item of Equipment or the Hotel suffers any
Non-Casualty Loss, Lessee shall repair or replace such item of
Equipment or the Hotel.
(c) All Non-Casualty Recoveries in excess of $2,000,000 in
respect of any Non-Casualty Loss to an item of Equipment or the
Hotel (including any component thereof) shall be paid directly to
Lessor for deposit into the Account, or if paid to Lessee, such
excess funds shall be immediately paid by Lessee to Lessor for
deposit into the Account; provided, however, that all such excess
funds received by Lessor in respect of a Non-Casualty Loss to an
item of Equipment or the Hotel occurring before the Construction
Completion Date shall be applied by Lessor in accordance with the
Construction Agency Agreement. Subject to the proviso of the
preceding sentence, if an Event of Default exists, Lessor may
retain all Non-Casualty Recoveries as cash collateral or, if no
Event of Default exists, Lessee shall be entitled to apply all
Non-Casualty Recoveries in accordance with Lessee's obligations
under Section 9.2(b), and any balance remaining after compliance
with Section 9.2(b) shall be retained by Lessee (without
diminishing Lessee's other obligations hereunder). Lessee shall not
be entitled to any Non-Casualty Recoveries in excess of $2,000,000
until it applies all amounts received in relation to such Casualty
Recovery of less than or equal to such amount in repair or
replacement of the affected item of Equipment.
SECTION 9.3. Required Coverages. Lessee will keep the Hotel and the
Equipment insured by financially sound and reputable insurers against loss or
damage of the kinds and in the amounts customarily insured against by similar
corporations engaged in similar operations and carry such other insurance as is
usually carried by such corporations, provided that in any event Lessee will
maintain:
(a) Comprehensive General Liability Insurance. Combined single
limit insurance against claims for bodily injury, death or
third-party property damage occurring on, in or about the Hotel and
the Equipment in an amount at least equal to $25,000,000 per
occurrence with such deductibles as are carried by similarly
situated companies involved in operating similar facilities and
equipment.
(b) Insurance Against "All Risk" of Loss or Damage. Insurance
against "all risk" of loss or damage covering the Hotel and the
Equipment or any portion thereof included in the special causes of
loss form, including flood and earthquake coverage if available at
commercially reasonable rates, in an amount and with such
deductibles as are carried by companies similar to Lessee owning or
leasing equipment similar to the Hotel and the Equipment; provided,
however, that at no time shall the amount of such coverage be less
than one hundred and ten percent of the Lease Balance.
(c) Builder's Risk Insurance. During the construction,
procurement and installation of the Hotel, all-risk builders'
insurance in respect of the Hotel.
(d) Other Insurance. Such other insurance including workers
compensation and business interruption insurance, in each case as
generally carried by owners of similar facilities and equipment in
the State of Mississippi, in such amounts and against such risks as
are then customary for equipment and property similar in use.
Such insurance shall be written by reputable insurance companies that are
financially sound and solvent and otherwise reasonably appropriate considering
the amount and type of insurance being provided by such companies. In the case
of liability insurance maintained by Lessee, each policy shall name Trustee,
Agent, Lessor and all Lenders, as additional insureds. In the case of property
insurance maintained by Lessee, each policy shall name the Trustee and Agent as
mortgagee and as additional loss payee. Each policy referred to in this Section
9.3 (other than workers compensation insurance) shall provide that: (i) it will
not be cancelled or its limits reduced, or allowed to lapse without renewal,
except after not less than 30 days' prior written notice to each additional
insured; (ii) such insurance is primary with respect to any other insurance
carried by or available to Trustee, Agent, Lessor and all Lenders; (iii) the
insurer shall waive any right of subrogation, setoff, counterclaim, or other
deduction, whether by attachment or otherwise, against the Agent or Lessor; and
(iv) such policy shall contain a severability of interest clause providing for
coverage of Trustee, Agent, Lessor and each Lender as if separate policies had
been issued to each of them. Lessee will notify Trustee and Agent promptly of
any policy cancellation, reduction in policy limits, modification or amendment.
SECTION 9.4. Delivery of Insurance Certificates. On or before the
Closing Date and thereafter not less than 30 days prior to the expiration date
of the expiring policies which are required to be maintained pursuant to Section
9.3 and upon written request of Lessor after a Lease Event of Default, Lessee
shall deliver to Trustee and Agent certificates of insurance satisfactory to
Agent evidencing the existence of all insurance required to be maintained
hereunder and setting forth the respective coverages, limits of liability,
carrier, policy number and period of coverage.
ARTICLE X
LEASE EVENTS OF DEFAULT
SECTION 10.1. Lease Events of Default. The occurrence of any one or
more of the following events, whether any such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body, shall constitute a
"Lease Event of Default":
(a) Any payment of Rent or any other payment payable by Lessee
hereunder or under any other Operative Document shall not be paid
when due and such failure shall continue unremedied for a period of
3 Business Days;
(b) Any representation or warranty on the part of Lessee or any
Guarantor contained in any Operative Document or in any
certificate, letter or other writing or instrument furnished or
delivered to Lessor, Agent or any Lender or pursuant thereto, shall
at any time prove to have been incorrect in any material respect
when made, deemed made or reaffirmed, as the case may be;
(c) Parent shall default in the performance or observance of any
term, covenant, condition or agreement on its part to be performed
or observed under Sections 5.2 or 5.16 of the Participation
Agreement or the Guaranty;
(d) Lessee shall default in any material respect in the
performance or observance of any term, covenant, condition or
agreement on its part to be performed or observed under Section
9.3;
(e) Lessee or Parent shall default in any material respect in
the performance or observance of any other term, covenant,
condition or agreement on their part to be performed or observed
hereunder or under any Operative Document (and not constituting an
Event of Default under any other clause of this Section 10.1), and
such default shall continue unremedied for a period of 30 days
after: (i) written notice thereof by Lessor, Agent or any Lender to
Lessee or any Guarantor; or (ii) Lessee or Parent has knowledge
thereof;
(f) (i) Lessee, any Guarantor or any Subsidiary that is a
sublessee, assignee or transferee of any Leased Property shall
generally fail to pay, or admit in writing its inability to pay,
its debts as they become due, or shall voluntarily commence any
case or proceeding or file any petition under any bankruptcy,
insolvency or similar law or seeking dissolution, liquidation or
reorganization or the appointment of a receiver, trustee, custodian
or liquidator for itself or a substantial portion of its property,
assets or business or to effect a plan or other arrangement with
its creditors, or shall file any answer admitting the jurisdiction
of the court and the material allegations of any involuntary
petition filed against it in any bankruptcy, insolvency or similar
case or proceeding, or shall be adjudicated bankrupt, or shall make
a general assignment for the benefit of creditors, or shall consent
to, or acquiesce in the appointment of, a receiver, trustee,
custodian or liquidator for itself or a substantial portion of its
property, assets or business; or (ii) corporate action shall be
taken by Lessee, any Guarantor or any Subsidiary that is a
sublessee, assignee or transferee of any Leased Property for the
purpose of effectuating any of the foregoing;
(g) Involuntary proceedings or an involuntary petition shall be
commenced or filed against Lessee, any Guarantor or any Subsidiary
that is a sublessee, assignee or transferee of the Leased Property
under any bankruptcy, insolvency or similar law or seeking the
dissolution, liquidation or reorganization of Lessee, any Guarantor
or any Subsidiary that is a sublessee, assignee or transferee of
any Leased Property or the appointment of a receiver, trustee,
custodian or liquidator for Lessee, any Guarantor or any Subsidiary
that is a sublease, assignee or transferee of any Leased Property
or of a substantial part of the property, assets or business of
Lessee, or any writ, judgment, warrant of attachment, execution or
similar process shall be issued or levied against a substantial
part of the property, assets or business of Lessee, any Guarantor
or any Subsidiary that is a sublease, assignee or transferee of any
Leased Property, and such proceedings or petition shall not be
dismissed or stayed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or
fully bonded, within 60 days after commencement, filing or levy, as
the case may be;
(h) A Plan shall fail to maintain the minimum funding standard
required by Section 412(d) of the Code for any plan year or a
waiver of such standard is sought or granted under Section 412(d),
or a Plan is or shall have been terminated or the subject of
termination proceedings under ERISA, or the Lessee or an ERISA
Affiliate has incurred a liability to or on account of a Plan under
Section 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall
result from any such event or events a Material Adverse Effect;
(i) Any Operative Document or any Lien granted under any
Operative Document shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of Lessee, or
any Guarantor, as the case may be; or Lessee, any Guarantor, or any
Affiliate of any of them shall, directly or indirectly, contest in
any manner the effectiveness, validity, binding nature or
enforceability thereof; or the Liens securing Lessee's or Trustee's
obligations under the Operative Documents shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to
Permitted Liens;
(j) Any default (subject to any applicable grace period) occurs
under any other agreement for borrowing money or receiving credit,
in each case individually or in the aggregate equal to or greater
than $10,000,000, under which Parent, Lessee or any Guarantor may
be obligated as borrower or guarantor;
(k) A final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against
the Parent, Lessee or any Guarantor and such judgment or judgments
(to the extent not covered by insurance provided by a recognized
insurance carrier) remain undischarged for a period (during which
execution shall not be effectively stayed) of 30 days, provided
that the aggregate of all such judgments exceeds $10,000,000;
(l) There has occurred any revocation, suspension or loss of any
Gaming Permit of Lessee or Parent (after the same shall have been
obtained) which results in the cessation of business at the Casino
or any other gaming location of Lessee for a period of more than 5
consecutive days;
(m) Any Event of Default under and as defined in the Indenture
(or under any documentation evidencing a refinancing or replacement
of the indebtedness created thereunder) has occurred and is
continuing;
(n) Any Construction Agency Event of Default has occurred and is
continuing;
(o) There shall have occurred a Change of Control;
(p) The Casino shall not have commenced gaming operations by
July 31, 1996;
(q) Parent has materially breached its obligations under the
Standby Equity Commitment Agreement; or
(r) Any "Event of Default" under and as defined in the Levee
Board Lease.
SECTION 10.2. Remedies. If any Lease Event of Default exists and is
continuing, Lessor shall have the rights, options and remedies of a beneficiary
of a deed of trust and secured party at law or in equity and, without limiting
the foregoing, Lessor may, so long as such Lease Event of Default is continuing,
do one or more of the following as Lessor in its sole discretion shall
determine, without limiting any other right or remedy Lessor may have on account
of such Lease Event of Default:
(a) Lessor may, by notice to Lessee, rescind or terminate this
Lease as of the date specified in such notice; however, (i) no
reletting, reentry or taking of possession of the Leased Property
(or any portion thereof) by Lessor will be construed as an election
on Lessor's part to terminate this Lease unless a written notice of
such intention is given to Lessee, (ii) notwithstanding any
reletting, reentry or taking of possession, Lessor may at any time
thereafter elect to terminate this Lease for a continuing Lease
Event of Default and (iii) no act or thing done by Lessor or any of
its agents, representatives or employees and no agreement accepting
a surrender of the Leased Property shall be valid unless the same
be made in writing and executed by Lessor;
(b) Lessor may (i) demand that Lessee, and Lessee shall upon the
written demand of Lessor, return the Hotel promptly to Lessor in
the manner and condition required by, and otherwise in accordance
with all of the provisions of, Articles VII, and Lessor shall not
be liable for the reimbursement of Lessee for any costs and
expenses incurred by Lessee in connection therewith and (ii)
without prejudice to any other remedy which Lessor may have for
possession of the Hotel, and to the extent and in the manner
permitted by Applicable Law, enter upon the Hotel and take
immediate possession of (to the exclusion of Lessee) the Hotel or
any part thereof and expel or remove Lessee and any other Person
who may be occupying the Hotel, by summary proceedings or
otherwise, all without liability to Lessee for or by reason of such
entry or taking of possession, whether for the restoration of
damage to property caused by such taking or otherwise and, in
addition to Lessor's other damages, Lessee shall be responsible for
all costs and expenses incurred by Lessor, Agent or the Lenders in
connection with any reletting, including reasonable brokers' fees
and all costs of any alterations or repairs made by Lessor;
(c) Lessor may demand that Lessee marshall and return the
Equipment to a location chosen by Lessor in the State of
Mississippi and Lessee shall upon written demand of Lessor,
promptly undertake to marshall and return the Equipment no later
than 30 days from the date of the written demand, or in the
alternative, Lessor may, upon notice to Lessee, enter upon the
Casino Barges for the purpose of taking possession and removing the
Equipment from the Casino Barges, and Lessor shall not be liable
for any cost and expenses, or direct or consequential damages
incurred by Lessee in connection therewith; it being understood
that Lessor's removal of the Equipment may cause the suspension of
operations at the Casino during the period of removal and
thereafter;
(d) (i) Lessor may demand, by written notice to Lessee
specifying a Payment Date (the "Final Rent Payment Date") not
earlier than ten days after the date of such notice, that Lessee
pay to Lessor, and Lessee shall pay to Lessor, on the Final Rent
Payment Date (in lieu of Periodic Rent due after the Final Rent
Payment Date), an amount equal to the sum of (A) the Lease Balance
computed as of the Final Rent Payment Date, plus (B) all accrued
and unpaid Rent due and payable to and including the Final Rent
Payment Date, and upon payment of such amount, and the amount of
all other sums due and payable by Lessee under this Lease and the
other Operative Documents (and interest at the Overdue Rate on the
amounts payable under this clause (A) from the Final Rent Payment
Date to the date of actual payment), Lessor shall comply with the
transfer provisions of Section 5.2 or Lessor may sell all or any
part of the Leased Property at public or private sale free and
clear of any rights of Lessee and without any duty to account to
Lessee with respect to such action or inaction or any proceeds with
respect thereto (except to the extent required by clause (ii) below
if Lessor shall elect to exercise its rights thereunder) in which
event Lessee's obligation to pay Periodic Rent hereunder for
periods commencing after the date of such sale shall be terminated
or proportionately reduced, as the case may be; and (ii) Lessee
shall pay to Lessor, on the date of such sale (in lieu of Periodic
Rent due for periods commencing on or after the Payment Date
coinciding with such date of sale (or, if the sale date is not a
Payment Date, the Payment Date next preceding the date of such
sale)), an amount equal to (A) the excess, if any, of (1) the Lease
Balance calculated as of such Payment Date (including all Rent due
and unpaid to and including such Payment Date), over (2) the net
proceeds of such sale (that is, after deducting all costs and
expenses incurred by Lessor, Agent and the Lenders incident to such
conveyance, including repossession costs, brokerage commissions,
prorations, transfer taxes, fees and expenses for counsel, title
insurance fees, survey costs, recording fees, and any repair
costs); plus (B) interest at the Overdue Rate on the foregoing
amount from such Payment Date until the date of payment;
(e) Lessor may, at its option, elect not to terminate this Lease
and continue to collect all Periodic Rent, Supplemental Rent, and
all other amounts due Lessor (together with all costs of
collection) and enforce Lessee's obligations under this Lease as
and when the same become due, or are to be performed, and at the
option of Lessor, upon any abandonment of the Leased Property by
Lessee or re-entry of same by Lessor, Lessor may, in its sole and
absolute discretion, elect not to terminate this Lease and may make
the necessary repairs in order to relet the Leased Property, and
relet the Leased Property or any part thereof for such term or
terms (which may be for a term extending beyond the Lease Term) and
at such rental or rentals and upon such other terms and conditions
as Lessor in its reasonable discretion may deem advisable; and upon
each such reletting all rentals actually received by Lessor from
such reletting shall be applied to Lessee's obligations hereunder
and the other Operative Documents in such order, proportion and
priority as Lessor may elect in Lessor's sole and absolute
discretion. If such rentals received from such reletting during any
period are less than the Rent with respect to the Leased Property
to be paid during that period by Lessee hereunder, Lessee shall pay
any deficiency, as calculated by Lessor, to Lessor on the next
Payment Date, it being understood that upon payment in full of the
Lease Balance and all other amounts due and payable under the
Operative Documents, Lessor will transfer possession of the Leased
Property to Lessee in accordance with Section 5.2, but subject to
any existing leases entered into pursuant to this paragraph (e);
(f) Unless the Leased Property has been sold in its entirety,
Lessor may, whether or not Lessor shall have exercised or shall
thereafter at any time exercise any of its rights under paragraph
(b), (c) or (d) of this Section 10.2 with respect to the Leased
Property or portions thereof, demand, by written notice to Lessee
specifying a date (a "Termination Date") not earlier than 10 days
after the date of such notice, that Lessee purchase, on such
Termination Date, the Leased Property (or the remaining portion
thereof) in accordance with the provisions of Section 5.1(a);
(g) Lessor may exercise any other right or remedy that may be
available to it under Applicable Law, or proceed by appropriate
court action, either at law or in equity, to enforce the terms
hereof or to recover damages for the breach hereof. Separate suits
may be brought to collect any such damages for any period(s), and
such suits shall not in any manner prejudice Lessor's right to
collect any such damages for any subsequent period(s), or Lessor
may defer any such suit until after the expiration of the Lease
Term, in which event such suit shall be deemed not to have accrued
until the expiration of the Lease Term;
(h) Lessor may retain and apply against Lessor's damages all
sums which Lessor would, absent such Lease Event of Default, be
required to pay to, or turn over to, Lessee pursuant to the terms
of this Lease;
(i) If a Lease Event of Default shall have occurred and be
continuing, Lessor, as a matter of right and without notice to
Lessee, shall have the right to apply to any court having
jurisdiction to appoint a receiver or receivers of the Leased
Property, and Lessee hereby irrevocably consents to any such
appointment. Any such receiver(s) shall have all of the usual
powers and duties of receivers in like or similar cases and all of
the powers and duties of Lessor in case of entry, and shall
continue as such and exercise such powers until the date of
confirmation of the sale of the Leased Property unless such
receivership is sooner terminated;
(j) To the maximum extent permitted by law, Lessee hereby waives
the benefit of any appraisement, valuation, stay, extension,
reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale of the Leased
Property or any interest therein;
(k) Lessor shall be entitled to enforce payment of the
indebtedness and performance of the obligations secured hereby and
to exercise all rights and powers under this instrument or under
any of the other Operative Documents or other agreement or any laws
now or hereafter in force, notwithstanding some or all of the
obligations secured hereby may now or hereafter be otherwise
secured, whether by mortgage, security agreement, pledge, lien,
assignment or otherwise. Neither the acceptance of this instrument
nor its enforcement, shall prejudice or in any manner affect
Lessor's right to realize upon or enforce any other security now or
hereafter held by Lessor, it being agreed that Lessor shall be
entitled to enforce this instrument and any other security now or
hereafter held by Lessor in such order and manner as Lessor may
determine in its absolute discretion. No remedy herein conferred
upon or reserved to Lessor is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the Operative
Documents to Lessor or to which it may otherwise be entitled, may
be exercised, concurrently or independently, from time to time and
as often as may be deemed expedient by Lessor. In no event shall
Lessor, in the exercise of the remedies provided in this instrument
(including in connection with the assignment of rents to Lessor, or
the appointment of a receiver and the entry of such receiver on to
all or any part of the Property), be deemed a "mortgagee in
possession," and Lessor shall not in any way be made liable for any
act, either of commission or omission, in connection with the
exercise of such remedies; or
(l) An action of deed of trust foreclosure as now provided by
Section 89-1-55 of the Mississippi Code of 1972, as amended or
other appropriate proceedings now or hereafter prescribed by law,
may forthwith be commenced and prosecuted to judgment, execution
and sale, for the collection of the whole amount of such Lease
Balance, together with all fees, costs and expenses of such
proceedings, including reasonable attorney's fees and expenses. And
all errors in such proceedings, together with any stays of or
exemptions from execution, or extensions of time of payment, which
may be given by any Applicable Laws now in force, or which may be
enacted hereafter, are hereby forever waived and released.
Amounts received by Lessor from the Account will be applied against Lessee's
liabilities hereunder. If, pursuant to the exercise by Lessor of its remedies
pursuant to this Section 10.2, the Lease Balance and all other amounts due and
owing from Lessee under this Lease and the other Operative Documents have been
paid in full, then Lessor shall remit to Lessee any excess amounts received by
Lessor.
SECTION 10.3. Waiver of Certain Rights. If this Lease shall be
terminated pursuant to Section 10.2, Lessee waives, to the fullest extent
permitted by law, (a) any notice of re-entry or the institution of legal
proceedings to obtain re-entry or possession; (b) any right of redemption,
re-entry or repossession; (c) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt or limiting Lessor with
respect to the election of remedies; and (d) any other rights which might
otherwise limit or modify any of Lessor's rights or remedies under this Article
X.
SECTION 10.4. Power of Attorney. Lessee unconditionally and
irrevocably appoints Lessor as its true and lawful attorney-in-fact, with full
power of substitution, to the extent permitted by Applicable Laws, in its name
and stead and on its behalf, for the purpose of effectuating any sale,
assignment, transfer or delivery hereunder, if a Lease Event of Default occurs,
whether pursuant to foreclosure or power of sale or otherwise, and in connection
therewith to execute and deliver all such deeds, bills of sale, assignments,
releases (including releases of this Lease on the records of any Governmental
Authority) and other proper instruments as Lessor may reasonably consider
necessary or appropriate. Lessee ratifies and confirms all that such attorney or
any substitute shall lawfully do by virtue hereof. If requested by Lessor or any
purchaser, Lessee shall ratify and confirm any such lawful sale, assignment,
transfer or delivery by executing and delivering to Lessor or such purchaser,
all deeds, bills of sale, assignments, releases and other proper instruments to
effect such ratification and confirmation as may be designated in any such
request.
SECTION 10.5. Remedies Cumulative; No Waiver; Consents. To the
extent permitted by, and subject to the mandatory requirements of, Applicable
Laws, each and every right, power and remedy herein specifically given to Lessor
or otherwise in this Lease shall be cumulative and shall be in addition to every
other right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute, and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
Lessor, and the exercise or the beginning of the exercise of any power or remedy
shall not be construed to be a waiver of the right to exercise at the same time
or thereafter any right, power or remedy. No delay or omission by Lessor in the
exercise of any right, power or remedy or in the pursuit of any remedy shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of Lessee or be an acquiescence therein. Lessor's consent to
any request made by Lessee shall not be deemed to constitute or preclude the
necessity for obtaining Lessor's consent, in the future, to all similar
requests. No express or implied waiver by Lessor of any Lease Event of Default
shall in any way be, or be construed to be, a waiver of any future or subsequent
Lease Event of Default. To the extent permitted by Applicable Laws, Lessee
hereby waives any rights now or hereafter conferred by statute or otherwise that
may require Lessor to sell, lease or otherwise use the Hotel Site, the Hotel or
Equipment in mitigation of Lessor's damages upon the occurrence of a Lease Event
of Default or that may otherwise limit or modify any of Lessor's rights or
remedies under this Article X.
ARTICLE XI
LESSOR'S RIGHT TO CURE
SECTION 11.1. Lessor's Right to Cure Lessee's Lease Defaults.
Lessor, upon two (2) Business Days prior notice (except that in any circumstance
in which there is a risk of imminent harm to any Person or property or any
possibility of criminal liability to any Lender, no notice shall be required),
without waiving or releasing any obligation or Lease Event of Default, may (but
shall be under no obligation to) remedy any Lease Default or Lease Event of
Default for the account and at the sole cost and expense of Lessee, including
the failure by Lessee to maintain the insurance required by Article IX, and may,
to the fullest extent permitted by law, and notwithstanding any right of quiet
enjoyment in favor of Lessee, enter upon the Leased Property for such purpose
and take all such action thereon as may be necessary or appropriate therefor. No
such entry shall be deemed an eviction of Lessee. All reasonable out-of-pocket
costs and expenses so incurred (including fees and expenses of counsel including
allocated time charges of internal counsel) together with interest thereon at
the Overdue Rate from the date on which such sums or expenses are paid by
Lessor, shall be paid by Lessee to Lessor on demand.
ARTICLE XII
WARRANT OF TITLE; EASEMENTS; ADDITIONAL FINANCINGS
SECTION 12.1. Warrant of Title. Nothing contained in this Lease
shall be construed as constituting the consent or request of Lessor, expressed
or implied, to or for the performance by any contractor, mechanic, laborer,
materialman, supplier or vendor of any labor or services or for the furnishing
of any materials for any construction, alteration, addition, repair or
demolition of or to the Property or any part thereof. NOTICE IS HEREBY GIVEN
THAT NEITHER LESSOR, AGENT, BANK NOR ANY LENDER IS OR SHALL BE LIABLE FOR ANY
LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO
ANYONE HOLDING THE LEASED PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE,
AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR OR ANY LENDER IN AND TO THE
LEASED PROPERTY.
SECTION 12.2. Grants and Releases of Easements; Lessor's Waivers.
Provided that no Lease Event of Default shall have occurred and be continuing
and subject to the provisions of Articles VII, IX and X Lessor hereby consents
in each instance to the following actions by Lessee, in the name and stead of
Lessor, but at Lessee's sole cost and expense: (a) the granting of easements,
licenses, rights-of-way and other rights and privileges in the nature of
easements reasonably necessary or desirable for the use, repair, or maintenance
of the Leased Property as herein provided; (b) the release of existing easements
or other rights in the nature of easements which are for the benefit of the
Leased Property; (c) if required by applicable Governmental Authority in
connection with the construction, the dedication or transfer of unimproved
portions of the Leased Property for road, highway or other public purposes; and
(d) the execution of amendments to any covenants and restrictions affecting the
Leased Property; provided, however, that in each case (i) such grant, release,
dedication, transfer or amendment does not impair the value, utility or
remaining useful life of the Leased Property, (ii) such grant, release,
dedication, transfer, annexation or amendment is reasonably necessary in
connection with the use, maintenance, alteration or improvement of the Leased
Property, (iii) such grant, release, dedication, transfer, annexation or
amendment will not cause the Leased Property or any portion thereof to fail to
comply in any respect with the provisions of this Lease or any other Operative
Documents and all Requirements of Law (including, without limitation, all
applicable zoning, planning, building and subdivision ordinances, all applicable
restrictive covenants and all applicable architectural approval requirements);
(iv) all governmental consents or approvals required prior to such grant,
release, dedication, transfer, annexation or amendment have been obtained, and
all filings required prior to such action have been made; (v) such grant,
release, dedication, transfer, annexation or amendment will not result in any
down-zoning of the Leased Property or any portion thereof or a material
reduction in the maximum density or development rights available to the Property
under all Requirements of Law; (vi) Lessee shall remain obligated under this
Lease and under any instrument executed by Lessee consenting to the assignment
of Lessor's interest in this Lease as security for indebtedness, in each such
case in accordance with their terms, as though such grant, release, dedication,
transfer, annexation or amendment had not been effected and (vii) Lessee shall
pay and perform any obligations of Lessor under such grant, release, dedication,
transfer, annexation or amendment.
SECTION 12.3. Additional Financings. Without limiting the
obligations of the Lessee set forth in Article VII, Lessor acknowledges Lessee's
right to acquire, finance and secure under the UCC and other Applicable Laws,
inventory, furnishings, furniture, equipment, machinery, leasehold, and
improvements located at the Hotel, the Casino Barges, the Levee Land and the
Hotel Site.
ARTICLE XIII
ASSIGNMENTS
All or any of the right, title or interest and obligations of
Lessor in and to this Lease and the rights, benefits, advantages and obligations
of Lessor hereunder, including the rights to receive payment of rental or any
other payment hereunder, and the rights, titles and interests in and to the
Hotel Site, the Hotel and the Equipment, may be assigned or transferred by
Lessor only in accordance with the provisions set forth in the Trust Agreement.
ARTICLE XIV
GRANT OF LIEN
SECTION 14.1. Grant of Lien. Title to the Hotel Site, the Hotel and
the Equipment is held by Lessor as collateral security for the obligations of
Lessee hereunder and under the Operative Documents to which it is a party until
such time as Lessee has fulfilled all of its obligations hereunder and under
such Operative Documents. Lessee hereby assigns, grants and pledges to Lessor
and the Lenders a security interest and Lien in (a) the Hotel Site, (b) the
Hotel, (c) the Equipment, (d) all of Lessee's right, title and interest, whether
now or hereafter existing or acquired, in to and under each of the items,
accounts, agreements listed in Section 2.1 of the Security Agreement, and (e)
the proceeds thereof (collectively, the "Lessee Collateral"), to secure the
payment of all sums due hereunder and under the Operative Documents to which it
is a party and the performance of all obligations hereunder and the other
Operative Documents to which it is a party.
As additional security for the Rent, the Lease Balance and all
other sums owed to Lessor by Lessee hereunder and under the other Operative
Documents to which it is a party, Lessee does hereby grant, bargain, sell,
transfer and convey unto Watson Butts, trustee (together with his successors and
assigns, the "Local Trustee"), whose address is Gulfport, Harrison County,
Mississippi, his successors in trust and assigns all of the Lessee's right,
title and interest in and to the Hotel Site, the Hotel and Equipment, including,
without limitation, all buildings, structures and other improvements to the
extent any of the foregoing constitute interests in real property, and all
fixtures and other property now or hereafter attached to or affixed to any such
buildings, structures or other improvements to the extent any of the foregoing
constitute interests in real property, and any additions and alterations thereto
or replacements thereof, now or hereafter built, constructed or located upon the
Hotel Site to the extent any of the foregoing constitute interests in real
property, all rents, additional rents, issues, income, revenues, distributions,
royalties and profits now or in the future payable in respect of the Hotel and
Equipment, together with all of the right, power and authority of Lessee to
alter, modify or change the terms, conditions and provisions of this Lease, and
any other real property lease pertaining to the Hotel Site or the Hotel, to
consent to any request made by a tenant or landlord pursuant thereto, or to
surrender, cancel or terminate the same or to accept any surrender, cancellation
or termination of the same, together with all of the options, rights, powers and
privileges of the Lessee under any real property lease pertaining to the Hotel
Site or the Hotel, whether heretofore or hereafter existing, including, without
limitation, and all present and future right, title and interest of the Lessee
in and to (i) all refunds, tax abatement agreements, rebates, reserves, deferred
payments, deposits, cost savings, awards and payments of any kind due from or
payable by (a) any Governmental Authority, or (b) any insurance or utility
company, in each case under clause (a) or (b) above in respect of the Leased
Property, and (ii) all refunds, rebates and payments of any kind due from or
payable by any Governmental Authority for any taxes, assessments, or
governmental or quasi-governmental charges or levies imposed upon the Lessee in
respect of the Hotel Site, the Hotel Site, the Hotel and Equipment, all proceeds
(including claims and demands therefor) of the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated claims, including
without limitation the proceeds of insurance and condemnation awards in respect
of the Hotel Site, the Hotel and Equipment or any portion thereof, all
additional estates, rights and interests hereafter acquired by the Lessee in the
Hotel Site, the Hotel or item of Equipment, or any portion thereof to the extent
any of the foregoing constitutes an interest in real property, including,
without limitation, a fee simple interest in the Hotel Site, the Hotel or item
of Equipment, or any portion thereof, and the Lessee further grants to the
Lessor, pursuant to the UCC, a security interest in all of the foregoing to the
extent any of the foregoing is personal property together with all proceeds of
the conversion, whether voluntary or involuntary, of any of the Hotel or
Equipment into cash or other liquid claims, including without limitation, all
awards, payments or proceeds, including interest thereon, and the right to
receive the same, which may be made as a result of any Casualty, any exercise of
the right of eminent domain or deed in lieu thereof, any injury to the Hotel
Site, the Hotel or Equipment and any defect in title in the Hotel Site, the
Hotel or Equipment or other matter insured under any policy of title insurance,
together with attorney's fees, costs and disbursements incurred by the Lessor or
any Lender (including allocated time charges of internal counsel) in connection
with the collection of such awards, payments and proceeds.
To have and to hold the same whether now owned or held or hereafter
acquired unto Local Trustee, his successor-in-trust forever, in trust, however,
to secure to the Lessor the payment of the Rent, the Lease Balance and all other
sums owing to Lessor under this Lease and under the other Operative Documents
and the performance and observation of the terms, covenants, warranties,
conditions, agreements and obligations under this Lease and under the other
Operative Documents. If the Lessee shall pay all sums due hereunder when due
according to the terms hereof and shall otherwise fully and properly perform and
comply with all of the Obligations, then this conveyance shall be come null and
void. If a Lease Event of Default has occurred and is continuing and at the
request of the Lessor, the Local Trustee or his successor is hereby authorized
and empowered, upon giving notice of the sale or sales by advertisement for
three consecutive weeks preceding the sale in a newspaper published in the
county where the Hotel Site is located and posting one notice at the courthouse
of said county for such time, describing the time, place and terms of sale, and
such other additional advertising, if any, as Local Trustee, in his sole
discretion, shall deem advisable, to sell the Hotel and Equipment at public
outcry at the courthouse door in said county to the highest bidder for cash, in
bar of all rights and equities of redemption, homestead, spouse's elective share
and all other rights or exemptions of every kind, including, without limitation,
the statutory right of redemption, all of which are hereby expressly waived.
Local Trustee may sell the Hotel and Equipment as a whole or in such parcels or
parts as he in his judgment may deem advisable. Lessor may bid at any sale and
may purchase the Hotel and Equipment, or any part thereof, if it is the highest
bidder therefor. Lessor shall be entitled to apply all or any part of the
indebtedness secured hereby as a credit to the purchase price. Upon such sale,
Local Trustee, or his successors-in-trust, is authorized to execute and deliver
a deed or deeds to the Hotel and Equipment to the purchaser and place the
purchaser in quiet and peaceful possession thereof. Lessee agrees that in the
event Local Trustee has not entered and taken possession of the Hotel and
Equipment prior to the sale, that the purchaser shall be entitled to immediate
possession thereof upon the delivery to him by Local Trustee of the deed for the
Hotel and Equipment. In the event of the sale of the Hotel and Equipment under
and by virtue of this provision, Lessee and all persons holding under it, shall
be and become tenants at will of the purchaser of the same, from and after the
execution and delivery of a deed to such purchaser.
Either prior to or at the time of the sale if Local Trustee shall
deem it proper for any reason to postpone or continue said sale, he may do so
from time to time, in which event notice of the date to which the sale is
continued may be published before such sale is held or the sale may be adjourned
from time to time by Local Trustee or his agent or successor and reset at a
later date without additional publication; provided, that an announcement to
that effect is made at the scheduled place of sale at the time and on the date
the sale was originally set. One or more exercises of the powers herein granted
shall not extinguish nor exhaust such powers until the Hotel and all Equipment
is sold or until the entire indebtedness secured hereby is paid in full. Local
Trustee may require the successful bidder at any sale to deposit immediately
with Local Trustee cash or a certified check in the amount not to exceed five
percent (5) of his bid, provided notice of such requirement is contained in the
advertisement of the sale. Out of the proceeds of such sale, Local Trustee shall
first pay all expenses in connection with the execution of this Trust, including
reasonable attorneys' fees and auctioneers' fees and the remainder of the
proceeds shall be paid to and applied as to provided in the Loan Agreement.
If Lessor, in its sole and absolute discretion, shall desire for
any reason whatsoever to have a substitute trustee appointed, then Lessor is
hereby authorized and empowered to appoint, at any time and from time to time,
by an instrument duly executed and acknowledged and filed for recordation
wherever this instrument is recorded, a substitute trustee, in the place and
stead of the Local Trustee initially named herein or subsequently appointed by
Lessor, which substitute trustee shall have the rights, powers and authority and
be charged with all the duties and responsibilities that are conferred or
charged upon Local Trustee initially named herein.
The necessity of Local Trustee or any successor trustee making
oath, filing inventory or giving bond for the security of this trust, as may be
required by the laws of Mississippi, is hereby expressly waived.
SECTION 14.2. Retention of Title or Proceeds in the Case of
Default. If Lessee would be entitled to any amount (including any Casualty
Recoveries or Non-Casualty Recoveries) or title to the Hotel or any item of
Equipment hereunder but for the existence of any Event of Default or event which
with the giving of notice and/or passage of time could become an Event of
Default, Lessor shall hold such amount or portion of the Hotel or item of
Equipment as part of the Lessee Collateral and shall be entitled to apply such
amounts against any amounts due hereunder; provided that Lessor shall distribute
such amount or transfer the Hotel or Equipment in accordance with the other
terms of this Lease if and when no Event of Default or event which with the
giving of notice and/or passage of time could become an Event of Default exists.
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Applicable Law. THIS LEASE HAS BEEN DELIVERED IN NEW
YORK AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS LEASE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF NEW
YORK, INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT
EXCLUDING ALL OTHER CHOICE OF LAWS AND CONFLICTS RULES OF SUCH STATE, EXCEPT AS
TO MATTERS RELATING TO PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION
OF THE SECURITY INTEREST AND LIENS CREATED HEREUNDER OR REMEDIES PROVIDED WITH
RESPECT TO THE HOTEL SITE AND THE LEASED PROPERTY, WHICH SHALL BE GOVERNED BY
THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED AND TO THE EXTENT THAT THE
EXERCISE OF CERTAIN RIGHTS OR REMEDIES HEREUNDER OR UNDER THE OTHER OPERATIVE
DOCUMENTS MAY REQUIRE COMPLIANCE WITH GAMING LAWS.
SECTION 15.2. Notices. Unless otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be in writing and shall be delivered and shall be deemed to
have been given in accordance with Section 9.3 of the Participation Agreement.
SECTION 15.3. Counterparts. This Lease has been executed in several
counterparts. One counterpart has been prominently marked "Lessor's Copy" and
the other counterparts have been prominently marked "Lessee's Copy" or "Copy."
Only the counterpart marked "Lessor's Copy" shall evidence a monetary obligation
of Lessee or shall be deemed to be an original or to be chattel paper for
purposes of the UCC, and such copy shall be held by Lessor.
SECTION 15.4. Severability. Whenever possible, each provision of
this Lease shall be interpreted in such manner as to be effective and valid
under Applicable Law; but if any provision of this Lease shall be prohibited by
or invalid under Applicable Law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Lease.
SECTION 15.5. Successors and Assigns. This Lease shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
SECTION 15.6. Parties in Interest. Except as expressly provided
herein, none of the provisions of this Lease is intended for the benefit of any
Person except the parties hereto, their successors and permitted assigns;
provided that each of Lessor and Lessee agrees that the Lenders shall benefit
from all of the provisions of this Lease applicable to them.
SECTION 15.7. Limitation of Liability. It is expressly understood
and agreed by the parties hereto that (a) this Lease is executed and delivered
by Bank, not individually or personally but solely as Trustee of the Trust, as
Lessor, in the exercise of the power and authority conferred and vested in it
under the Trust Agreement; (b) each of the representations, undertakings and
agreements herein made on the part of Lessor is made and intended not as
personal representations, undertakings and agreements by Bank but is made and
intended for the purpose of binding only Trustee in its trust capacity and as
Lessor; (c) nothing herein contained shall be construed as creating any
liability on Bank, individually or personally to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any other Person claiming by,
through or under this Lease; and (d) under no circumstances shall Bank be
personally liable for the payment of any indebtedness or expenses of Lessor or
be liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by Lessor under this Lease or any of the other
Operative Documents; provided that Bank shall be liable in its individual
capacity for its own willful misconduct or gross negligence (or negligence in
the handling of funds) or for any Taxes based in or measured by any fees,
commission or compensation received by it for acting as Trustee.
SECTION 15.8. Captions; Table of Contents. Section captions and the
table of contents used in this Lease (including the Schedules, Exhibits and
Annexes hereto) are for convenience of reference only and shall not affect the
construction of this Lease.
SECTION 15.9. Schedules and Exhibits. The Schedules and Exhibits
hereto, along with all attachments referenced in any of such items, are
incorporated herein by reference and made a part hereof.
SECTION 15.10. No Merger. If the fee simple interest in the Leased
Property and the leasehold interest therein shall be held by the same party, the
interest in the Leased Property granted to Trustee pursuant to the Ground Lease
and the interest of Lessee in the Lease shall not terminate or be merged and the
Ground Lease and the Lease shall remain in full force and effect.
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
HANCOCK BANK,
not in its individual capacity, except as
expressly stated herein, but solely as
Trustee, as Lessor
By: /s/ C.H. Gibbons
Name Printed: 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
BL DEVELOPMENT CORP.,
as Lessee
By: /s/ Timothy J. Cope
Name Printed: 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
CORPORATE ACKNOWLEDGMENT
(LESSOR-TRUSTEE)
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
corporation, and that for and on behalf of said bank, and as its act and deed in
the representative capacity herein stated, __he executed the above and foregoing
instrument, after first having been duly authorized by said bank so to do.
/s/ Haz Jeannette Lee
NOTARY PUBLIC
My Commission Expires:
My Commission Expires Dec. 26, 1998
- -------------------------
(Affix official seal)
CORPORATE ACKNOWLEDGMENT
(LESSEE)
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 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)
Prepared by and when Lease Supplement
recorded mail to:
Exhibit A
Mayer, Brown & Platt to Lease
1675 Broadway, Suite 1900
New York, New York 10019
Attn: Barry K. Gassman, Esq.
(212) 506-2500
FORM OF LEASE SUPPLEMENT
THIS LEASE SUPPLEMENT, dated May 10, 1996 (this "Lease Supplement"), is
between HANCOCK BANK, not in its individual capacity, except as expressly stated
herein, but solely as Trustee under the Trust Agreement, as Lessor (the
"Lessor"), and BL DEVELOPMENT CORP., a Minnesota corporation, as Lessee (the
"Lessee");
W I T N E S S E T H:
WHEREAS, Lessee and Lessor have heretofore entered into that certain Lease
dated as of May 10, 1996 filed for record in Book ___ at Page __ in the Office
of the Chancery Clerk of Tunica County, Mississippi (as amended, supplemented,
or otherwise modified from time to time, the "Lease"). Unless otherwise defined
herein, capitalized terms used herein shall have the meanings specified in the
Lease; and
WHEREAS, the Lease provides for the execution and delivery of a Lease
Supplement on the Closing Date substantially in the form hereof for the purpose
of confirming the acceptance and lease of [a] certain [Hotel] [Equipment],
specifying the Rent applicable to such [Hotel] [Equipment] and setting forth
certain other matters, all as required pursuant to the Lease;
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, Lessor and Lessee hereby agree as follows:
==============================================================================
ALL RIGHT, TITLE AND INTEREST OF LESSOR UNDER THIS LEASE AND THE PROPERTY
RIGHTS SUBJECT HERETO HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A LIEN AND
SECURITY INTEREST IN FAVOR OF BA LEASING & CAPITAL CORPORATION, AS AGENT
("AGENT"), UNDER THE SECURITY AGREEMENT, DATED AS OF MAY 10, 1996, AS AMENDED
FROM TIME TO TIME, FOR THE BENEFIT OF THE AGENT AND THE LENDERS REFERRED TO IN
SUCH SECURITY AGREEMENT. THIS LEASE HAS BEEN EXECUTED IN SEVERAL COUNTERPARTS.
TO THE EXTENT, IF ANY, THAT THIS LEASE SUPPLEMENT CONSTITUTES CHATTEL PAPER (AS
SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ANY
APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS LEASE SUPPLEMENT MAY BE
CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART HEREOF OTHER THAN
THE ORIGINAL EXECUTED "LESSOR'S COPY", WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY AGENT ON OR FOLLOWING
THE SIGNATURE PAGE THEREOF.
THIS COUNTERPART IS [NOT] THE ORIGINAL EXECUTED LESSOR'S COPY.
INDEXING INSTRUCTIONS:
Part of the Northwest 1/4 and Southwest 1/4 of Section 5, Township 3 South,
Range 10 West of Tunica County, Mississippi.
1. [Hotel] [Equipment] Subject to Lease Supplement. [The portion of the
Hotel that Lessor has had constructed for its use pursuant to the Construction
Agency Agreement] [The Equipment] identified in the Certificate of Acceptance
dated ______________], attached hereto as Exhibit A and incorporated herein,
located on the [Hotel Site] [Land] shall become, upon satisfaction or waiver of
the conditions set forth in Article III of the Participation Agreement, subject
to the terms and conditions of this Lease Supplement and the Lease. The Lessee
does hereby grant a Lien and security interest in the Hotel or the Equipment
identified herein to secure the Obligations.
[2. Interim and Base Periods. The Interim Period for the [Equipment]
[Hotel] shall commence on the date of the initial Advance for Equipment and
shall end [insert applicable date from definition of "Interim Period"] and the
Base Period shall immediately follow and end on the [third] [fifth] anniversary
of the Base Date.]
3. Confirmation. Lessee hereby confirms its agreement, in accordance with
the Lease as supplemented by this Lease Supplement to pay Rent to Lessor for the
[Hotel] [Equipment] leased hereunder. Nothing herein shall reduce Lessee's
obligation to make all other payments required under the Lease, including those
payments to be made on the last day of the Lease Term.
4. Incorporation into Lease. This Lease Supplement shall be construed in
connection with and as part of the Lease, and all terms, conditions and
covenants contained in the Lease, as supplemented by this Lease Supplement,
shall be and remain in full force and effect.
5. References. Any and all notices, requests, certificates and other
instruments executed and delivered concurrently with or after the execution and
delivery of this Lease Supplement may refer to the "Lease, dated as of May 10,
1996", or may identify the Lease in any other respect without making specific
reference to this Lease Supplement, but nevertheless all such references shall
be deemed to include this Lease Supplement, unless the context shall otherwise
require.
6. Counterparts. This Lease Supplement may be executed in any number of
counterparts, each executed counterpart constitute an original but all together
one and the same instrument.
7. Governing Law. THIS LEASE SUPPLEMENT HAS BEEN DELIVERED IN, AND SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE. PROVIDED THAT MATTERS RELATING TO PERFECTION AND THE EFFECT OF
PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST AND LIENS GRANTED
HEREUNDER OR REMEDIES PROVIDED WITH RESPECT TO THE LAND AND THE LEASED PROPERTY
SHALL BE GOVERNED BY THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED AND TO
THE EXTENT THAT THE EXERCISE OF CERTAIN RIGHTS OR REMEDIES HEREUNDER OR UNDER
THE OTHER OPERATIVE DOCUMENTS MAY REQUIRE COMPLIANCE WITH GAMING LAWS.
[Signature page to follow]
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease Supplement to
be duly executed and delivered as of the day and year first above written with
actual execution on the dates set forth in the respective acknowledgements
below.
HANCOCK BANK, not in its individual capacity except as
expressly stated herein, but solely as Trustee, as
Lessor
By___________________________
Name:
Title:
Address:
Telephone No.:
Telecopier No.:
BL DEVELOPMENT CORP., as Lessee
By___________________________
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
CORPORATE ACKNOWLEDGMENT
(LESSOR-TRUSTEE)
STATE OF ________________)
) ss:
COUNTY OF _______________)
Personally appeared before me, the undersigned authority in and for
the said county and state, on this ____ day of ________, 19__, within my
jurisdiction, the within named ________________________________, duly identified
before me, who acknowledged that __he is __________________________________ of
_________________________, a state banking corporation, and that for and on
behalf of said bank, and as its act and deed in the representative capacity
herein 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:
- -------------------------
(Affix official seal)
CORPORATE ACKNOWLEDGMENT
(LESSEE)
STATE OF ________________)
) ss:
COUNTY OF _______________)
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ____ day of ________, 19__, within my
jurisdiction, the within named ___________________________, duly identified
before me, who acknowledged that __he is _____________________________ of
__________________________, a _____________________ 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.
------------------------------
NOTARY PUBLIC
My Commission Expires:
- -------------------------
(Affix official seal)
Exhibit B
to Lease
DESCRIPTION OF HOTEL SITE
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in Section 5, Township 3
South, Range 10 West, Tunica County, Mississippi, as shown as containing 10.14
acres on that certain plat prepared by Rosser Lowe, a division of Rosser
International, Inc. (William J. Daniel III, MS PLS No. 2031), entitled Boundary
Survey of Hotel I Site, dated 19 April 1996, last revised May 6, 1996 and being
more particularly described as follows:
BEGINNING at a point at the intersection of the northerly line of a
proposed private drive and the easterly right-of-way line of Village Center Road
(variable width right-of-way);
THENCE along a curve to the left having a radius of 1937.62 feet and an arc
length of 221.26 feet, being subtended by a chord of North 14 degrees 46 minutes
54 seconds East for a distance of 221.14 feet, along said easterly right-of-way
line, to a point;
THENCE North 11 degrees 30 minutes 26 seconds East for a distance of 213.54
feet, continuing along said right-of-way line, to a point;
THENCE along a curve to the right having a radius of 925.97 feet and an arc
length of 518.60 feet, being subtended by a chord of South 60 degrees 42 minutes
33 seconds East for a distance of 511.85 feet, leaving said right-of-way line,
to a point;
THENCE South 44 degrees 39 minutes 53 seconds East for a distance of 203.07
feet, to a point;
THENCE South 73 degrees 47 minutes 51 seconds East for a distance of 69.49
feet to a point;
THENCE South 16 degrees 02 minutes 06 seconds West for a distance of 247.62
feet, to a point;
THENCE South 28 degrees 48 minutes 07 seconds East for a distance of 136.12
feet, to a point;
THENCE South 73 degrees 48 minutes 08 seconds East for a distance of 246.92
feet, to a point;
THENCE South 16 degrees 11 minutes 43 seconds West for a distance of 86.34
feet, to a point;
THENCE North 74 degrees 22 minutes 51 seconds West for a distance of 212.82
feet, to a point;
THENCE South 61 degrees 11 minutes 56 seconds West for a distance of 118.17
feet, to a point;
THENCE North 28 degrees 48 minutes 15 seconds West for a distance of 186.36
feet, to a point;
THENCE South 61 degrees 12 minutes 34 seconds West for a distance of 26.14
feet, to a point;
THENCE along a curve to the right having a radius of 108.24 feet and an arc
length of 90.46 feet, being subtended by a chord of South 85 degrees 48 minutes
34 seconds West for a distance of 87.85 feet, to a point;
THENCE along a curve to the left having a radius of 24.01 feet and an arc
length of 20.84 feet, being subtended by a chord of South 86 degrees 04 minutes
56 seconds West for a distance of 20.20 feet, to a point;
THENCE along a curve to the right having a radius of 325.60 feet and an arc
length of 63.89 feet, being subtended by a chord of South 65 degrees 53 minutes
40 seconds West for a distance of 63.78 feet, to a point on the easterly line of
a proposed private drive;
THENCE along a curve to the left having a radius of 491.46 feet and an arc
length of 677.16 feet, being subtended by a chord of North 37 degrees 13 minutes
01 seconds West for a distance of 624.85 feet, along said line of a proposed
private drive northwesterly and westerly to the point of BEGINNING.