[EXECUTION COPY]
TRUST AGREEMENT
dated as of May 10, 1996
between
BL DEVELOPMENT CORP.,
as Grantor,
and
HANCOCK BANK
as Trustee
INDEXING INSTRUCTIONS:
Part of the Northwest 1/4 and Soutwest 1/4 of Section 5, Township 3 South, Range
10 West of Tunica County, Mississippi.
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.
TABLE OF CONTENTS
Section Page
ARTICLE I
THE TRUST ESTATE
1.1. Appointment, Authorization and Direction
to Trustee. . . . . . . . . . . . . . . . . . . 1
1.2. Declaration and Purpose. . . . . . . . . . . . . . . . . 2
ARTICLE II
COLLECTIONS AND DISTRIBUTIONS
2.1. Collections and Remittances by the
Trustee . . . . . . . . . . . . . . . . . . . . 2
2.2. Distribution of Payments . . . . . . . . . . . . . . . . 3
2.3. Effect of Sales by the Trustee . . . . . . . . . . . . . 3
ARTICLE III
CERTAIN PROVISIONS RESPECTING TRUSTEE
3.1. Acceptance of Trusts and Duties. . . . . . . . . . . . . 4
3.2. Limitation of Power. . . . . . . . . . . . . . . . . . . 4
3.3. Notice of Event of Default . . . . . . . . . . . . . . . 4
3.4. Action Upon Instructions . . . . . . . . . . . . . . . . 5
3.5. Certain Duties and Responsibilities of
the Trustee . . . . . . . . . . . . . . . . . . 5
3.6. Certain Rights of Trustee. . . . . . . . . . . . . . . . 7
3.7. NO REPRESENTATIONS OR WARRANTIES AS TO
THE LEASED PROPERTY OR DOCUMENTS. . . . . . . . 9
3.8. Status of Moneys Received. . . . . . . . . . . . . . . . 9
3.9. Permitted Activities . . . . . . . . . . . . . . . . . . 9
3.10. Resignation or Removal of Trustee. . . . . . . . . . . . 9
3.11. Estate and Rights of Successor Trustee . . . . . . . . . 10
3.12. Merger or Consolidation of Trustee . . . . . . . . . . . 10
3.13. Co-Trustees. . . . . . . . . . . . . . . . . . . . . . . 11
3.14. Books and Records. . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
TERMINATION OF AND AMENDMENTS TO TRUST
4.1. Termination. . . . . . . . . . . . . . . . . . . . . . . 11
4.2. Distribution of Trust Estate Upon
Termination . . . . . . . . . . . . . . . . . . 12
4.3. Amendments . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
MISCELLANEOUS
5.1. Compensation and Indemnification . . . . . . . . . . . . 13
5.2. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . 14
5.4. Tax Reports; Information Reporting;
Withholding Taxes . . . . . . . . . . . . . . . 14
5.5. Headings . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6. Successors and Assigns . . . . . . . . . . . . . . . . . 15
5.7. Severability . . . . . . . . . . . . . . . . . . . . . . 15
5.8. Only Written Waivers . . . . . . . . . . . . . . . . . . 15
5.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . 15
5.10. Rights in Trust Agreement. . . . . . . . . . . . . . . . 15
5.11. Payment of Trustee Fees, Costs and Expenses. . . . . . . 15
5.12. Identification of Trust. . . . . . . . . . . . . . . . . 16
TRUST AGREEMENT
THIS TRUST AGREEMENT (as amended and supplemented from time to time, this
"Trust Agreement") dated as of May 10, 1996, is entered into by and between
HANCOCK BANK, a Mississippi banking corporation (in its individual capacity, the
"Bank"; the Bank, not in its individual capacity but solely as trustee, and any
institution that shall act as a successor trustee in accordance with the terms
of Section 3.10, the "Trustee"); and BL Development Corp., as grantor (the
"Grantor"). For purposes hereof, capitalized terms used in this Trust Agreement
without specific definition herein shall have the meanings assigned thereto in
Appendix 1 to the Participation Agreement, dated as of May 10, 1996, among the
Trustee; the Lenders; the Co-Agents; the Lead Manager; the Grantor; Grand
Casinos, Inc. and certain of its Subsidiaries, as Guarantors; and BA Leasing &
Capital Corporation, as Arranger and Agent.
ARTICLE I
THE TRUST ESTATE
SECTION 1.1 Appointment, Authorization and Direction to Trustee. Grantor
hereby requests that the Bank act as Trustee of the trust created hereunder (the
"Trust") and Bank hereby accepts its appointment as trustee of the Trust,
effective as of the date hereof. The Lenders and the Grantor authorize and
direct the Trustee, subject to the Lenders' satisfaction or waiver of all
appropriate conditions set forth in the Participation Agreement, to enter into,
execute and deliver:
(a) on the Closing Date and from time to time thereafter (including on
each Advance Date), the Operative Documents to which the Trust or the
Trustee is to become a party on each such date;
(b) from time to time, the Notes in the manner and subject to the
terms and conditions provided in the Participation Agreement and the Loan
Agreement; and
(c) all other documents, and to do all such things and take all such
actions, as may be necessary or convenient to consummate the transactions
contemplated by the Operative Documents and to perform the terms and
conditions of this Trust Agreement, all as contemplated herein or in the
Operative Documents.
SECTION 1.2 Declaration and Purpose.
(a) Trustee hereby declares, undertakes and agrees that it will and
does receive, take and hold all estate, right, title and interest of the
Trustee in and to the Trust Estate in trust for the use and benefit of the
Grantor subject to the terms of the Operative Documents.
(b) The purpose of the Trust is to acquire and hold title to the
Leased Property and the remainder of the Trust Estate, including leasehold
interests in the Hotel Site described in Exhibit A attached hereto and made
a part hereof, as collateral security for the obligations of the Trustee
under the Loan Agreement, to discharge such obligations in accordance with
the provisions of the Loan Agreement and the other Operative Documents and
to engage in activities ancillary and incidental thereto as set forth in
the Operative Documents. Except in connection with the foregoing, the
Trustee in its capacity as Trustee shall not (i) engage in any business or
activity, (ii) have any property, rights or interest, whether real or
personal, tangible or intangible, (iii) incur any legal liability or
obligation, whether fixed or contingent, matured or unmatured, other than
in the normal course of the administration of the Trust or (iv) subject any
of the Trust Estate to any mortgage, lien, security interest or other claim
or encumbrance, other than in favor of the Agent and the Lenders pursuant
to the provisions of the Operative Documents. THE TRUST IS NOT A BUSINESS
TRUST. THE SOLE PURPOSE OF THE TRUST IS TO ACQUIRE AND HOLD TITLE TO THE
LEASED PROPERTY AND TO COLLECT AND CONSERVE THE VALUE THEREOF AND OF THE
TRUST ESTATE, SUBJECT TO THE RIGHTS OF THE AGENT AND THE GRANTOR, FOR THE
BENEFIT OF THE LENDERS. THE TRUSTEE MAY NOT TRANSACT BUSINESS OF ANY KIND
WITH RESPECT TO THE TRUST ESTATE NOR SHALL THIS TRUST AGREEMENT BE DEEMED
TO BE, OR CREATE OR EVIDENCE THE EXISTENCE OF A CORPORATION DE FACTO OR DE
JURE, OR A MASSACHUSETTS TRUST, OR ANY OTHER TYPE OF BUSINESS TRUST,
ASSOCIATION OR JOINT VENTURE BETWEEN THE TRUSTEE, THE AGENT AND THE
LENDERS.
ARTICLE II
COLLECTIONS AND DISTRIBUTIONS
SECTION 2.1 Collections and Remittances by the Trustee. Trustee agrees
that, subject to the provisions of this Trust Agreement, it will, during the
term of this Trust, administer the Trust Estate and, at the direction of the
Grantor, or if the Loan Agreement has not been fully discharged, the Agents (the
appropriate Person permitted to give instructions being hereafter called the
"Instructing Party") take steps to collect all sums payable to the Trustee by
the Grantor or any other Person under the Lease and the other Operative
Documents. The Trustee agrees to distribute all proceeds received from the Trust
Estate in accordance with the Loan Agreement and Sections 2.2 and 2.3. The
Trustee shall make such distribution promptly upon receipt of such proceeds (if
such proceeds are available for distribution) by the Trustee, it being
understood and agreed that the Trustee shall not be obligated to make such
distribution until the funds for such distribution have been received by the
Trustee in cash or its equivalent reasonably acceptable to the Trustee. All
distributions to a Lender shall be made by the Trustee to the order of such
Lender at its address referred to in Section 9.3 of the Participation Agreement.
SECTION 2.2 Distribution of Payments.
(a) Payments to the Trustee for the benefit of the Lenders and Agent.
Until the Loan Agreement shall have been fully discharged pursuant to its
terms, all Rent, insurance proceeds and requisition or other payments of
any kind included in the Trust Estate (other than Excluded Amounts) payable
to and received by the Trustee shall be held by Trustee for the benefit of
the Lenders and the Agent for distribution in accordance with the
provisions of Article III of the Loan Agreement; provided, however, that
any payments received by the Trustee from the Grantor with respect to the
Trustee's fees and disbursements, or pursuant to Section 5.1, shall be
retained by the Trustee and applied toward the purpose for which such
payments were made.
(b) Excluded Amounts. Any Excluded Amounts received by the Trustee at
any time shall be promptly paid by the Trustee to the Person to whom such
Excluded Amounts are payable under the provisions of the Participation
Agreement or any other Operative Document.
SECTION 2.3 Effect of Sales by the Trustee. Any sale of all or any part of
the Trust Estate by the Trustee permitted hereunder shall bind the Lenders and
shall be effective for the benefit of the purchasers thereof and their
respective successors and assigns to divest and transfer all right, title and
interest vested in the Trustee or the Lenders hereunder in the property so sold,
and no purchaser shall be required to inquire as to compliance by the Trustee
with any of the terms hereof or to see to the application of any consideration
paid for such property.
ARTICLE III
CERTAIN PROVISIONS RESPECTING TRUSTEE
SECTION 3.1 Acceptance of Trusts and Duties. Bank accepts the trusts hereby
created and agrees to perform the same as herein expressed and agrees to receive
and disburse all moneys constituting part of the Trust Estate in accordance with
the terms hereof.
SECTION 3.2 Limitation of Power. Trustee shall have no power, right, duty
or authority to manage, control, possess, use, sell, lease, dispose of or
otherwise deal with the Leased Property or any other property at any time
constituting a part of the Trust Estate, or otherwise to take or refrain from
taking any action under or in connection with the Operative Documents, except
(a) to execute and deliver the Operative Documents to which the Trustee is to be
a party, (b) to exercise and carry out or cause to be exercised and carried out
the rights, duties and obligations of the Trustee hereunder, (c) to exercise and
carry out or cause to be exercised and carried out the rights, duties and
obligations of the Trustee under the Operative Documents, (d) to receive,
collect and distribute and deal with the sums due under the Lease and with the
Leased Property and the proceeds thereof as provided in the Lease, the Loan
Agreement and in this Trust Agreement, and (e) as expressly provided in written
instructions from the Instructing Party given pursuant to Section 3.3 or 3.4.
Other than as expressly provided in this Trust Agreement, the Trustee shall not
have the authority to make management decisions relating to the Trust Estate and
may take only ministerial actions without consent of the Agents. For purposes of
this Trust Agreement neither the Grantor nor, if applicable, the Parent, shall
have the right to direct the Trustee to exercise and carry out or cause to be
exercised and carried out the rights, duties and obligations of the Trustee
hereunder and under the Operative Documents until the Loan Agreement and Notes
have been paid and discharged in full.
SECTION 3.3 Notice of Event of Default. If a Responsible Officer of the
Trustee has actual knowledge of a Lease Event of Default or Loan Event of
Default, the Trustee shall give prompt written notice of such event to the
Lenders, the Grantor and the Agent in the manner specified in Section 5.2.
Subject to Section 3.4, the Trustee shall take such action, and only such
action, with respect to any such event as shall be specified in written
instructions from the Instructing Party. For all purposes of the Operative
Documents, in the absence of such actual knowledge, the Trustee shall not be
deemed to have knowledge of a Lease Event of Default or a Loan Event of Default
unless any of its Responsible Officers is notified in writing by a Lender or the
Agent. Trustee shall have no obligation and shall not take any action in the
event it receives no direction from the applicable Instructing Party.
SECTION 3.4 Action Upon Instructions. Subject to Sections 3.5, 3.6 and 5.1
and the Loan Agreement, upon the written instructions at any time and from time
to time of the Instructing Party, the Trustee shall take such of the following
actions, and only such actions, as may be specified in such instructions:
(a) give such notice or direction or exercise such right or power
under the Lease or any other Operative Document as shall be specified in
such instructions;
(b) approve as satisfactory to it all matters required by the terms of
any Operative Document to be satisfactory to the Trustee;
(c) upon expiration of the Lease Term and discharge in full of the
Loan Agreement and the Notes pursuant to its terms, convey all of Trustee's
right, title and interest in and to the Trust Estate (including the Leased
Property) to the Grantor; and
(d) any other action as specified by the Instructing Party.
SECTION 3.5 Certain Duties and Responsibilities of the Trustee.
(a) (i) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth herein and in the other Operative
Documents, and no implied covenants or obligations shall be read into this
Trust Agreement against the Trustee, and the Trustee agrees that it shall
not, nor shall it have a duty to, manage, control, use, sell, maintain,
insure, register, lease, operate, modify, dispose of or otherwise deal with
the Leased Property or any other part of the Trust Estate in any manner
whatsoever, except as required by the Operative Documents and as otherwise
provided herein.
(ii) In the absence of bad faith or gross negligence on its part,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Trust Agreement.
(b) No provision of this Agreement or any other Operative Document,
including, without limitation, Articles VII and VIII of the Participation
Agreement, shall be construed to relieve the Bank or the Trustee of
liability for its gross negligence or willful misconduct or its negligence
in the handling of funds, it being understood that, without limiting the
foregoing:
(i) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was grossly negligent;
(ii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Instructing Party pursuant to the express
provisions hereof; it being understood that the Trustee shall be
liable if it takes any action pursuant to instructions from the
Grantor prior to receiving notice from Agent that the Loan Agreement
has been discharged in full pursuant to its terms;
(iii) no provision hereof shall require the Bank or Trustee to
expend or risk its own funds in the performance of any of its duties
hereunder or under any of the other Operative Documents, or in the
exercise of any of its rights or powers; and
(iv) the Bank shall be liable for (A) any taxes on, with respect
to or measured by any amounts paid to it as compensation for services
as the Trustee hereunder or otherwise under the Operative Documents,
(B) acts or omissions not related to the transactions contemplated by
the Operative Documents, (C) the inaccuracy of representations and
warranties made by the Bank in the Participation Agreement or any
certificate or document delivered pursuant thereto, and (D) its
negligence in the handling of funds.
(c) Trustee shall not be required to take any action hereunder or
under the other Operative Documents, nor shall any other provision of this
Trust Agreement or any other Operative Document be deemed to impose a duty
on the Trustee to take any action, if the Trustee determines, or is advised
by counsel, that such action is likely to result in personal liability or
is contrary to Applicable Law or the Operative Documents.
(d) Whether or not therein expressly so provided, except where
expressly provided otherwise, every provision of this Trust Agreement
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section 3.5.
SECTION 3.6 Certain Rights of Trustee. Except as otherwise provided in
Section 3.5:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any signature, resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction or authorization by any party hereto or to
any other Operative Document shall be sufficiently evidenced by a request,
direction or authorization in writing, delivered to the Trustee and signed
in the name of such party by the president, any vice president, the
treasurer or the secretary of such party, as the case may be, and any
resolution of the board of directors or committee thereof of such party
shall be sufficiently evidenced by a copy of such resolution certified by
the secretary or an assistant secretary of such party, as the case may be,
to have been duly adopted and to be in full force and effect on the date of
such certification, and delivered to the Trustee;
(c) whenever in the administration of this Trust Agreement the Trustee
deems it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trustee may in good faith
rely upon a certificate in writing, delivered to the Trustee and signed by
the president, any vice president, any assistant vice president, the
treasurer, any assistant treasurer, the secretary or any assistant
secretary of a Lender;
(d) the Trustee may exercise its powers and perform its duties by or
through such attorneys, agents and servants as it may appoint, and it shall
not be liable for the conduct or misconduct of such attorneys, agents and
servants, provided, that the Trustee shall use due care in the appointment
of such attorneys, agents and servants; and it shall be entitled to the
advice of counsel and shall be protected by the advice of such counsel in
anything done or omitted to be done in accordance with such advice if such
advice pertains to such matters as the Trustee may reasonably presume to be
within the scope of such counsel's area of expertise;
(e) Trustee shall not be under any obligation to exercise any of the
rights or powers vested in it by this Trust Agreement or any other
Operative Document at the request or direction of the Instructing Party,
unless the Instructing Party offers to the Trustee reasonable security or
indemnity against the costs, expenses (including reasonable fees and
expenses of its legal counsel) and liabilities which may be incurred by it
in compliance with such request or direction; and
(f) provided no Responsible Officer has actual knowledge of the
inaccuracy thereof, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee determines to make such
further inquiry or investigation, it shall be entitled to examine the books
and records of the Grantor related to the Leased Property to reasonably
determine whether the Grantor is in compliance with the terms and
conditions of the Lease and to examine the Leased Property, by agent or
attorney, all upon the terms and conditions contained in the Lease.
Notwithstanding Section 3.5, the Trustee shall not have any duty (i) to see
to any recording or filing of the Operative Documents or any Uniform Commercial
Code financing statements or to see to the maintenance of any such recording or
filing, (ii) to see to any insurance on the Leased Property or to effect or
maintain any such insurance, whether or not the Grantor is in default with
respect thereto, other than to forward promptly to the Lenders copies of all
certificates, reports and other written information it receives from the Grantor
pursuant to the Lease (unless the Lenders are to receive such certificates,
reports and other written information directly from the Grantor), (iii) to see
to the payment or discharge of any tax, assessment or other government charge or
any Lien owing with respect to, assessed or levied against any part of the Trust
Estate, other than Lessor Liens attributable to it, (iv) to confirm or verify
any financial statements of the Grantor or any other Person, or (v) to inspect
the Leased Property at any time or ascertain or inquire as to the performance or
observance of any of the Grantor's or any other Person's (other than its or the
Bank's) covenants under the Operative Documents with respect to the Leased
Property.
SECTION 3.7 NO REPRESENTATIONS OR WARRANTIES AS TO THE LEASED PROPERTY OR
DOCUMENTS. THE BANK IS NOT A BUILDER, DEVELOPER OR MANUFACTURER OF THE LEASED
PROPERTY OR A DEALER IN OR VENDOR OF SIMILAR LEASED PROPERTY AND HAS NOT
INSPECTED THE LEASED PROPERTY BEFORE DELIVERY TO AND ACCEPTANCE BY THE GRANTOR.
THE BANK HAS NOT MADE NOR DOES IT MAKE (A) ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, AS TO ANY ENVIRONMENTAL MATTER OR CONDITION, VALUE, DESIGN,
OPERATION, CONDITION, QUALITY, DURABILITY, SUITABILITY, MERCHANTABILITY OR
FITNESS FOR USE OR FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF LATENT OR OTHER
DEFECTS WHETHER OR NOT DISCOVERABLE, ABSENCE OF ANY INFRINGEMENT OF ANY PATENT,
TRADEMARK OR COPYRIGHT, OR ANY OTHER WARRANTY WHATSOEVER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE LEASED PROPERTY, OR AS TO TITLE THERETO, OR (B) ANY
REPRESENTATION OR WARRANTY AS TO THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THE
OPERATIVE DOCUMENTS (OTHER THAN AS TO THIS TRUST AGREEMENT AGAINST THE BANK), OR
AS TO THE CORRECTNESS OF ANY STATEMENT CONTAINED IN ANY THEREOF, EXCEPT AS SET
FORTH IN SECTION 4.3 OF THE PARTICIPATION AGREEMENT.
SECTION 3.8 Status of Moneys Received. All moneys received by the Trustee
or the Bank under or pursuant to this Trust Agreement or any other Operative
Document (other than Excluded Amounts to be paid to the Bank) shall constitute
trust funds for the purpose for which they were paid or are held, but need not
be segregated in any manner from any other moneys and may be deposited by the
Trustee under such conditions as may be prescribed or permitted by Applicable
Law for trust funds, or, at the direction of the Agents may be invested in Cash
Equivalents.
SECTION 3.9 Permitted Activities. The Trustee or any corporation in or with
which the Trustee may be interested or affiliated or any officer or director of
any such corporation may have commercial relations and otherwise deal with the
Grantor or any other Person or with any other corporation having relations with
the Grantor to the full extent permitted by Applicable Law.
SECTION 3.10 Resignation or Removal of Trustee. Bank or any successor
thereto as Trustee may resign as Trustee at any time without cause by giving at
least 60 days' prior written notice to each Lender, the Agent and the Grantor,
and the Required Lenders (or Grantor, if there exists no Event of Default and at
the expense of Grantor) may at any time remove the Trustee without cause by an
instrument in writing delivered to the Trustee, the Agent and the Grantor, such
resignation or removal to be effective on the later of the date specified in
such notice or written instrument or the date on which a successor trustee is
appointed hereunder. With the written consent of the Agent and, so long as a
Lease Event of Default shall not have occurred and be continuing, the Grantor,
the Required Lenders may, at any time upon 30 days' prior written notice to the
Agent and the Grantor by an instrument in writing, appoint a successor trustee;
provided, however, so long a Lease Event of Default shall not have occurred and
be continuing and with the written consent of the Required Lenders and at the
expense of Grantor, the Grantor may, after 30 days from the date of such consent
by an instrument in writing, appoint a successor trustee; provided, further,
that any successor trustee shall be a bank or trust company organized under the
laws of the United States of America or any state thereof that has a combined
capital and surplus of at least $100,000,000, and provided, further, that, if
required by Applicable Law, the Mississippi Gaming Commission shall have made a
determination of suitability with respect to such successor trustee. If the
Required Lenders do not appoint a successor trustee within 30 days after the
giving of notice of such resignation or removal, the Agent or the Trustee may
apply to any court of competent jurisdiction to appoint a successor trustee to
act until a successor or successors is appointed by the Required Lenders as
above provided. Any successor trustee so appointed by such court shall
immediately and without further act be superseded by a successor trustee
appointed by the Required Lenders within one year from the date of the
appointment by such court.
SECTION 3.11 Estate and Rights of Successor Trustee. Any successor trustee,
whether appointed by the Required Lenders or a court, shall execute and deliver
to the predecessor Trustee an instrument accepting such appointment, and
thereupon each successor trustee, without further act, shall become vested with
all the estates, properties, rights, powers, duties and trusts of the
predecessor Trustee in the trusts hereunder with like effect as if originally
named Trustee herein, but nevertheless upon the written request of such
successor trustee, such predecessor Trustee shall execute and deliver an
instrument transferring to such successor Trustee, upon the trusts herein
expressed, all the estates, properties, rights, powers and trusts of such
predecessor Trustee, and such predecessor Trustee shall duly assign, transfer,
deliver and pay over to such successor trustee any property or moneys then held
by such predecessor Trustee upon the trusts herein expressed.
SECTION 3.12 Merger or Consolidation of Trustee. Any corporation into which
the Bank serving as Trustee may be merged or with which it may be consolidated,
or any corporation resulting from any merger or consolidation to which the Bank
serving as Trustee is a party, or any corporation to which substantially all of
the business of the Trustee may be transferred, shall be a successor trustee
under this Trust Agreement without further act.
SECTION 3.13 Co-Trustees. At any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust Estate may at
the time be located, the Instructing Party and the Trustee jointly shall have
the power, and shall execute and deliver all instruments, to appoint one or more
Persons approved by the Required Lenders and the Trustee, to act as co-trustee,
or co-trustees, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person or
Persons, in such capacity, such title to the Trust Estate or any part thereof,
and such rights, powers, duties, trusts or obligations as the Required Lenders
and the Trustee may consider necessary or desirable. If the Instructing Party
has not joined in such appointment within 15 days after the receipt by it of a
request to do so, the Trustee alone shall have power to make such appointment.
The Trustee shall not be liable for any act or omission of any co-trustee or
separate trustee appointed under this Section 3.13.
SECTION 3.14 Books and Records. Trustee shall be responsible for keeping
the customary books and records relating to the receipt and disbursement of all
moneys actually received and disbursed by it.
ARTICLE IV
TERMINATION OF AND AMENDMENTS TO TRUST
SECTION 4.1 Termination. The Trust created and provided for hereby shall
cease and be terminated in any one of the following events, whichever shall
first occur:
(a) If the Required Lenders shall by notice in writing to the Trustee,
the Lenders, the Agent and the Grantor revoke and terminate the Trust on
and as of a date stated in such notice, which date shall not be less than
ten nor more than thirty days from the date of mailing such notice, then on
the date specified in such notice the Trust created and provided for hereby
shall cease and terminate, provided, however, that this Trust shall not be
subject to revocation or termination by the Lenders prior to the payment in
full and discharge of the Loans and all other indebtedness secured by the
Operative Documents and the termination of the Operative Documents and the
release of the Liens granted thereby; or
(b) the sale or other final disposition by the Trustee of all property
constituting the Trust Estate and the final disposition by the Trustee of
all moneys or other property or proceeds constituting part of the Trust
Estate in accordance with the terms hereof; provided, however, that the
Trust Estate shall not be subject to sale or other final disposition by the
Trustee prior to the payment in full and discharge of the Loans and all
other indebtedness secured by the Operative Documents and the release of
the Operative Documents and the Liens granted thereby and the payment in
full of the Commitment Amounts; or
(c) 110 years after the date hereof.
SECTION 4.2 Distribution of Trust Estate Upon Termination. Upon any
termination of this Trust pursuant to Section 4.1, the Trustee shall convey the
Trust Estate to such purchaser or purchasers thereof or other Persons entitled
thereto and for such amount and on such terms as are specified in written
instructions from the Required Lenders delivered to the Trustee before the date
of termination; provided that (a) if at the time of any termination the Lease
remains in force and effect, then the Trust Estate shall be conveyed as a unit
subject to the Lease and not in parcels, and (b) if such written instructions
are not delivered to the Trustee on or before the date of termination, the
Trustee shall transfer title to the Trust Estate to the Lenders. Upon making
such transfer or sale the Trustee shall be entitled to immediate receipt of any
sums due and owing to the Trustee, including, without limitation, any expenses
(including reasonable attorneys' fees and expenses) incurred pursuant hereto or
as compensation for services rendered hereunder and not theretofore paid and the
Trustee shall be discharged and free of any further liability hereunder subject
to Section 3.5(b).
SECTION 4.3 Amendments. Subject to Section 6.1(b) and Section 9.5 of the
Participation Agreement, at any time and from time to time, upon the written
request of the Instructing Party, (i) the Trustee shall execute a supplement
hereto for the purpose of adding provisions to, or changing or eliminating
provisions of, this Trust Agreement as specified in such request, and (ii) the
Trustee shall enter into or consent to such written amendment of or supplement
to the other Operative Documents as the Grantor or the Agent, as the case may
be, may agree to and as may be specified in such request, or execute and deliver
such written waiver or modification of the terms of the Operative Documents as
may be specified in such request; provided, however, if in the reasonable
opinion of the Trustee, any document required to be executed by it pursuant to
this Section 4.3 affects any right or duty of, or immunity or indemnity in favor
of, the Trustee under this Trust Agreement or the other Operative Documents, the
Trustee may in its reasonable discretion decline to execute such document.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Compensation and Indemnification. Trustee shall receive
reasonable compensation for its services hereunder from the Grantor and shall be
reimbursed by the Grantor for the Trustee's reasonable fees and expenses
(including the reasonable disbursements and fees of counsel). If a Lease Event
of Default or a Loan Event of Default shall have occurred and be continuing and
the Trustee is required pursuant to this Trust Agreement to take any action in
connection therewith, it shall be reimbursed by the Grantor for any expenses it
may incur in relation to taking any such action. Subject to any limitations and
rights agreed to by Trustee in the Participation Agreement, including, without
limitation, the terms and provisions set forth in Articles VII and VIII of the
Participation Agreement, whether or not the transactions contemplated by the
Operative Documents are consummated, Grantor shall reimburse and indemnify and
save the Trustee harmless from and against any and all losses, damages,
liabilities, claims, actions, suits, obligations, penalties, demands,
disbursements and expenses, including taxes, counsel fees, and including tort
claims for which the Trustee is strictly liable, which may be asserted against
or incurred by reason of the Bank's being the Trustee or acting as the Trustee
hereunder or under the other Operative Documents or the performance or
enforcement of any of the terms hereof, or arising out of or relating to this
Trust Agreement or the other Operative Documents or the Leased Property, the
Trust Estate or the Rent and other sums payable therefor, or the building,
manufacture, purchase, installation, acceptance, rejection, ownership, delivery,
lease, possession, use, operation, condition, sale, return or other disposition
of the Leased Property or in any way relating to or arising out of the Trust
Estate or the action or the inaction of the Trustee hereunder or by reason of
any occurrence while so acting. In no event shall the Grantor be so obligated in
respect of any such losses, damages, liabilities, claims, actions, suits,
obligations, penalties, demands, disbursements and expenses, including taxes and
counsel fees pursuant to this Section 5.1, arising from or as a result of (a)
the willful misconduct or gross negligence of the Bank or the negligence of the
Bank in the handling of funds, (b) any taxes on, with respect to or measured by
any amounts paid to the Bank as compensation for services as Trustee hereunder
or otherwise under the Operative Documents, or (c) the inaccuracy of
representations and warranties made by the Bank in the Participation Agreement
or in any certificate or documents delivered pursuant thereto. The provisions of
this Section 5.1 and Articles VII and VIII of the Participation Agreement (other
than the requirements for compensation of the Trustee after its resignation,
which shall terminate upon the resignation or removal of the Trustee) shall
continue in force and effect notwithstanding the termination of this Trust, the
resignation or removal of the Trustee or the obligation of any other party to
any other Operative Document to make any payment to the Trustee which the
Grantor is required to make pursuant to this Section 5.1.
SECTION 5.2 Notices. All notices and communications provided for herein
shall be in writing and shall be deemed to have been given in accordance with
Section 9.3 of the Participation Agreement. Trustee shall deliver to each Lender
promptly after receipt copies of all notices, certificates and reports delivered
to it pursuant to any Operative Document.
SECTION 5.3 GOVERNING LAW. THIS TRUST IS BEING CREATED IN THE STATE OF NEW
YORK AND THE VALIDITY, CONSTRUCTION AND ALL RIGHTS UNDER THIS TRUST SHALL BE
GOVERNED BY THE LAWS OF THAT STATE, INCLUDING SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAWS AND CONFLICTS OF
LAWS RULES OF SUCH STATE; PROVIDED, HOWEVER, THAT THE EXERCISE OF CERTAIN RIGHTS
OR REMEDIES HEREUNDER AND UNDER THE OPERATIVE DOCUMENTS MAY REQUIRE COMPLIANCE
WITH GAMING LAWS. IF ANY PROVISION OF THIS TRUST SHALL BE INVALID OR
UNENFORCEABLE, THE REMAINING PROVISIONS HEREOF SHALL CONTINUE TO BE FULLY
EFFECTIVE, PROVIDED THAT SUCH REMAINING PROVISIONS DO NOT INCREASE THE
OBLIGATIONS OR LIABILITIES OF THE TRUSTEE.
SECTION 5.4 Tax Reports; Information Reporting; Withholding Taxes. If any
tax report or tax return is required to be made by the Trustee with respect to
the Trust Estate and the Grantor is not required to prepare and file the same
pursuant to the Leases, each Lender will prepare such tax report or return in
respect of its interest in the Trust and deliver a copy thereof to the Trustee.
The Trustee agrees to promptly forward to each Lender any communications with
respect to taxes pertaining to the Trust Estate received by the Trustee from tax
authorities or from the Grantor.
SECTION 5.5 Headings. The headings of the various Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 5.6 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors and assigns. Grantor may not assign, transfer or
otherwise dispose of its interest in the Trust, except as expressly contemplated
in the Operative Documents.
SECTION 5.7 Severability. Any provision of this Trust Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition on unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
SECTION 5.8 Only Written Waivers. No term or provision of this Trust
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party or other person against whom
enforcement of the change, waiver, discharge or termination is sought; and any
waiver of the terms hereof shall be effective only in the specific instance and
for the specific purpose given.
SECTION 5.9 Counterparts. This instrument may be simultaneously executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original, and such counterparts together shall constitute and be one and the
same instrument.
SECTION 5.10 Rights in Trust Agreement. Except as expressly provided to the
contrary in the Operative Documents, nothing in this Trust Agreement, whether
express or implied, shall be construed to give any Person other than the Trustee
and each Lender and their respective successors and assigns, any legal or
equitable right, remedy or claim under or in respect of this Trust Agreement.
SECTION 5.11 Payment of Trustee Fees, Costs and Expenses. Grantor shall pay
to the Trustee for its services hereunder such fees and expenses as heretofore
have been agreed upon by Trustee and Grantor and shall also pay to Trustee such
fees and expenses as may be reasonably incurred by the Trustee as a result of
taking any direction of the Instructing Party. Trustee agrees that it shall have
no right against the Lenders or Agent for any fee as compensation for its
services hereunder, except as hereafter expressly agreed upon by the Lenders,
the Agent and the Trustee.
SECTION 5.12 Identification of Trust. The name of the trust created hereby
is the GCI Trust 1996-1.
[Signature page follows]
IN WITNESS WHEREOF, the Bank and the Grantor have caused this Trust
Agreement to be duly executed all as of the day and year first above written
with actual execution on the dates set forth in the respective acknowledgements
below.
HANCOCK BANK,
as Bank and as Trustee
By: /s/ C. H. GIBBONS
Name: C. H. Gibbons
Title: Vice President & Trust Officer
Address: 2510 14th Street
One Hancock Plaza
Gulfport, MS 39501
Telephone No.: (601) 868-4400
Telecopier No.: (601) 868-4333
BL DEVELOPMENT CORP.,
as Grantor
By: /s/ TIMOTHY J. COPE
Name: Timothy J. Cope
Title: Chief Financial Officer
Address: 13705 First Avenue North
Plymouth, MN 55441-5451
Telephone No.: (612) 449-7030
Telecopier No.:(612) 449-7022
STATE OF MISSISSPIIE )
) ss:
COUNTY OF HARRISON )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 13th day of May, 1996, within my jurisdiction,
the within named C. H. Gibbons who acknowledged that he is Vice President &
Trust Officer of Hancock Bank, a state banking association, and that for and on
behalf of the said bank, and as its act and deed in the representative capacity
therein stated, he executed the above and foregoing instrument, after first
having been duly authorized by said bank to do so.
Haz Jeannette Lee
----------------------------------
NOTARY PUBLIC
My Commission expires:
Ny Commission Expires Dec. 26, 1998
- --------------------------------
(Affix official seal, if applicable)
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
Personally appeared before me, the undersigned authority in and for
the said county and state, on this 16th day of May, 1996, within my
jurisdiction, the within named Timothy J. Cope who acknowledged that he is the
Chief Financial Officer of BL Development Corp., a Minnesota corporation, and
that for and on behalf of the said corporation, and as its act and deed he
executed the above and foregoing instrument, after first having been duly
authorized by said corporation to do so.
/s/ PATRICIA L. BUFFHAM
----------------------------------
NOTARY PUBLIC
My Commission expires:
- --------------------------------
(Affix official seal, if applicable)
EXHIBIT A
TO
TRUST AGREEMENT
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.
EXHIBIT B
TO
TRUST AGREEMENT
[DEFINITIONS]
(SEE ITEM NO. 2 (APPENDIX I TO PARTICIPATION AGREEMENT).