EXHIBIT 10.56
EXHIBIT XIV
[FORM OF SHIP MORTGAGE]
FIRST PREFERRED SHIP MORTGAGE
This First Preferred Ship Mortgage (this "Ship Mortgage"), dated August 25,
1995, made by ______________________, a ____________ corporation ("Mortgagor")
to First Interstate Bank of Nevada, N.A., a national banking association, in its
capacity as trustee (in such capacity, "Trustee") under the Trust Agreement
hereinafter defined.
W I T N E S S E T H:
TERMS AND CONDITIONS
DEFINITIONS: The following words shall have the following meanings when used in
this Ship Mortgage. All references to dollar amounts shall mean amounts in
lawful money of the United States of America. In this Ship Mortgage, whenever
the context so requires, the singular includes the plural and the plural also
includes the singular.
"Additional Advances" means any and all sums that Mortgagee may advance on
Mortgagor's behalf as provided under this Ship Mortgage, and for which
Mortgagor is responsible to repay.
"Administrative Agent" means the administrative agent under the Credit
Agreement and its succesors and assigns.
"Closing Date" means August 30, 1995.
"Collateral" means the Vessel and Mortgagor's Rights.
"Credit Agreement" means that certain Credit Agreement dated as of August
25, 1995 by and among Players International, Inc., a Nevada corporation,
First Interstate Bank of Nevada, N.A. ("FIB"), as Administrative Agent, the
Lenders listed on the signature pages thereto, FIB and Bankers Trust
Company, as Managing Agents, and FIB and BT Securities Corporation, as
Co-Arrangers, as the same may be modified or amended from time to time and
in effect.
"Encumbrances" means individually, collectively, and interchangeably any
and all presently existing and/or future mortgages, liens, privileges, and
other contractual and/or
1
statutory security interests and rights, of every nature and kind, whether
in admiralty, at law, or in equity, that now and/or in the future may
affect the Collateral or any part or parts thereof.
"Event of Default" means individually, collectively, and interchangeably
any of the Events of Default set forth below in the section titled "Events
of Default".
"Event of Loss" means, with respect to any property or asset, (i) any loss,
destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise,
of such property or asset, or confiscation or requisition of the use of
such property or asset.
"Guarantied Obligations" means the obligations, liabilities and
indebtedness of Mortgagor now or hereafter arising under or pursuant to the
Guaranty.
"Guaranty" means the Guaranty dated the Closing Date executed by Mortgagor
in favor of Mortgagee, as the same may be modified or amended from time to
time and in effect.
"Indebtedness" means the obligations, liabilities and indebtedness of
Players International now or hereafter arising under or pursuant to the
Credit Agreement, the Notes or any of the Related Documents.
"Lenders" means the lenders under the Credit Agreement and their respective
successors and assigns, and any subsequent holder or holders of the Notes,
or any interest therein.
"Mortgagee" means First Interstate Bank of Nevada, N.A. in its capacity as
Trustee under the Trust Agreement.
"Mortgagor" means individually, collectively, and interchangeably
_______________________ and its successors, administrators, and assigns.
"Notes" means the promissory notes issued by Players International to
Lenders pursuant to the Credit Agreement, and any and all renewals,
extensions, and refinancings thereof.
"Obligations" means all liabilities, obligations and indebtedness of
Mortgagor to Mortgagee or any of Lenders now or hereafter arising under or
pursuant to the Guaranty or any of the Related Documents, together with all
obligations, liabilities and indebtedness of Mortgagor to Mortgagee or any
of Lenders for which Mortgagor is responsible under this Ship Mortgage,
including but not limited to the repayment of any Additional Advances.
2
"Players International" means Players International, Inc. a Nevada
corporation.
"Related Documents" means and includes individually, collectively,
interchangeably, and without limitation all promissory notes, credit
agreements, loan agreements, guaranties, security agreements, mortgage,
deeds of trust, and all other instruments, agreements, and documents,
whether now or hereafter existing, and executed in connection with the
Credit Agreement, the Notes or the Guaranty.
"Rights" means individually, collectively, and interchangeably any and all
of the property, rights or interests in which Mortgagee is granted a
security interest as provided under this Ship Mortgage.
"Ship Mortgage" means this First Preferred Ship Mortgage, as the same may
be amended or modified from time to time and in effect.
"Ship Mortgage Laws" means the Ship Mortgage Laws as codified in Chapter
313 of Title 46 of the United States Code, and as amended from time to time
and in effect.
"Trust Agreement" means that certain Trust Agreement, dated as of August
25, 1995, by and among Trustee and Administrative Agent for itself and on
behalf of Lenders, as the same may be modified or amended from time to time
and in effect.
"Vessel" means the whole of the vessel named below and described as
follows:
Vessel Name Official
Number
together with any and all present and future engines, boilers, machinery,
components, masts, boats, anchors, cables, chains, rigging, tackle,
apparel, furniture, capstans, outfit, tools, pumps, gear, furnishings,
appliances, fittings, spare and replacement parts, equipment and any and
all other appurtenances thereto, appertaining or belonging to the Vessel,
whether now or hereafter acquired, and whether on board or not on board,
together with any and all present and future additions, improvements, and
replacements therefor, made in or to the Vessel, or any part or parts
thereof; and all accounts, earned hire, charter payments, freight,
earnings, revenues, income and profit therefrom and additionally, all log
books, manuals, trip records, maintenance records, inspection reports,
seaworthiness certificates, and other historical records or information
relating to the
3
Vessel, all of which shall be deemed to be included in any reference herein
to the term "Vessel"; provided, however, nothing herein contained shall be
deemed or construed to subject to the preferred lien of this Ship Mortgage
any property other than a "vessel" as defined in the Ship Mortgage Laws.
GRANTING OF MORTGAGE. And now, in order to secure the prompt and punctual
payment and performance of all Obligations, Mortgagor does by these presents
specifically mortgage, affect, and hypothecate unto and in favor of Mortgagee on
behalf of Lenders, the whole of the Vessel.
MORTGAGE SECURING FUTURE INDEBTEDNESS. This Ship Mortgage has been executed by
Mortgagor for the purpose of securing the Obligations that may now be existing
and that may arise in the future as provided herein, with the preferences and
priorities provided under applicable law.
DURATION OF MORTGAGE. The Ship Mortgage shall remain in full force and effect
until such time as all Obligations shall have been fully paid and performed and
the Guaranty terminated.
REPRESENTATIONS, WARRANTIES, AND OBLIGATIONS CONCERNING THE VESSEL. Mortgagor
represents, warrants, and covenants to Mortgagee as follows with respect
to the Vessel:
Port of Documentation. The port of documentation of the Vessel is and shall
at all times be _____________, State of __________. As long as this Ship
Mortgage remains in effect, Mortgagor will not change the port of
documentation of the Vessel without the prior written consent of Mortgagee.
Location of Vessel. When not in use elsewhere, the Vessel shall be berthed
at: ________________, ______________.
Notice of Mortgage. Mortgagor shall exhibit and/or cause a certified copy
of this Ship Mortgage and any and all amendments or supplements hereto or
assignments hereof, to be exhibited, on demand, to any person having
business with the Vessel or with Mortgagor or with any of Mortgagor's
representatives. Mortgagor shall further cause the following notice,
printed in plain type of such size that each paragraph of reading matter
shall cover a space not less than six (6) inches wide by nine (9) inches
high, and framed under glass, to be placed and kept prominently displayed
on the Vessel:
4
"NOTICE OF MORTGAGE"
This Vessel is owned by ________________________, and is covered by a
First Preferred Ship Mortgage in favor of First Interstate Bank of
Nevada, N.A., as Trustee. Under the terms of said Ship Mortgage, no
owner, operator, charterer, cargo owner, subcharterer of this Vessel,
or any person, has the right, power or authority to create, incur, or
permit to exist on this Vessel any lien whatsoever other than liens
for crews' wages or salvage. A copy of the First Preferred Ship
Mortgage is carried on this vessel and must be exhibited on demand to
any person having business with this vessel.
Mortgagor agrees that such notice shall be changed whenever necessary to
reflect the identity of any successor to Mortgagor or Mortgagee.
Use of Vessel. Mortgagor shall use, and/or shall cause others to use, the
Vessel at all times in accordance with the laws, treaties, conventions,
rules, regulations, and ordinances of the United States of America, the
several states and municipalities thereof, and any other sovereign
jurisdiction in which the Vessel may be located. The Vessel shall further
be used only for any purpose and in the manner set forth in the application
of insurance executed in connection herewith, as from time to time in
effect, and furthermore, may not be used for any illegal purpose. Mortgagor
shall not, without the prior written consent of Mortgagee, do any act, or
voluntarily suffer or permit any act to be done, whereby any insurance
required under this Ship Mortgage shall or may be cancelled, suspended,
impaired or defeated, or suffer or permit the Vessel to engage in any
voyage or to carry any cargo not permitted under the policies of insurance
then in effect without procuring insurance satisfactory to Mortgagee
covering the Vessel in all respects for such voyage.
Alterations. Mortgagor shall not, without the prior written consent of
Mortgagee, make or permit others to make, any alterations to the Vessel or
any part or component of the Vessel, that may reduce or impair the Vessel's
value or utility; provided that Mortgagor and Mortgagee hereby acknowledge
that the intended use of the Vessel by Mortgagor is as the base for a
riverboat casino facility to be located near _________________,
_______________.
Abandonment of Vessel. Mortgagor shall not, nor shall Mortgagor permit
others to, abandon, commit waste, or destroy the Vessel, or any part or
component of the Vessel.
5
Repair and Maintenance. Mortgagor shall, at its own expense, keep and
maintain and/or cause others to keep and maintain, the Vessel in good
order, repair and seaworthy condition to Mortgagee's satisfaction and to
the satisfaction of the Vessel's salvage association, classification
society, and/or the United States Coast Guard, as applicable. Mortgagor
shall further make and/or cause all necessary repairs to be made to the
Vessel, including the repair and restoration of any portion of the Vessel,
or its parts or components, that may have been lost, damaged, or impaired.
Inspections; Audits. Mortgagor shall give Mortgagee notice of each proposed
survey of the Vessel twenty (20) days in advance if practicable, but
otherwise as long in advance as may be practicable under the circumstances
and shall permit representatives of Mortgagee to be present during such
survey. Notwithstanding the previous sentence, Mortgagee and its agents may
periodically inspect or survey the Vessel to ascertain its condition and to
satisfy Mortgagee that the Vessel is being properly repaired and
maintained. Mortgagee and its agents may further periodically enter upon
Mortgagor's premises at reasonable hours and conduct audits of Mortgagor's
books and records that in any way pertain to the Vessel, any part or parts
thereof, or Mortgagor's Rights. Mortgagee shall have the further right to
periodically inspect the log of the Vessel.
Prohibitions Regarding the Vessel. So long as this Ship Mortgage remains in
effect, Mortgagor shall not, without Mortgagee's prior written consent, (a)
sell, assign, transfer, convey, option, mortgage, lease, or charter the
Vessel; (b) permit any Encumbrances to be placed on or attached to the
Vessel; (c) change the port of documentation of the Vessel; or (d) change
the registration or flag of the Vessel.
Preferred Ship Mortgage. Mortgagor shall comply with and satisfy all of the
provisions of applicable law and regulations of the United States of
America, as the same may at any time be amended, including without
limitation all laws and regulations relating to citizenship of Mortgagor,
in order to establish and maintain this Ship Mortgage as a first priority
"preferred mortgage" upon the Vessel for the full amount secured hereby.
Mortgagor shall also execute and record from time to time, at its expense
and at reasonable advance intervals, such additional instruments as may be
necessary or appropriate within Mortgagee's sole discretion, so that this
Ship Mortgage may be established and preserved as a valid preferred lien on
the Vessel until this Ship Mortgage shall be cancelled in the manner
provided herein.
VESSEL OWNERSHIP AND TITLE. Mortgagor represents, warrants, and covenants to
Mortgagee, on behalf of Lenders, as follows:
6
General Representations and Warranties. Except as previously disclosed to
and accepted by Mortgagee, on behalf of Lenders in writing: (a) Mortgagor
is and will continue at all times to be the sole lawful owner of the
Vessel; (b) Mortgagor has the right to mortgage the Vessel to Mortgagee;
(c) as of the time this Ship Mortgage is recorded, there are no prior
Encumbrances affecting the Vessel, or any part or parts thereof; (d) the
security interests granted under this Ship Mortgage shall at no time become
subordinate or junior to any security interest, lien, or claim of any
person, firm, corporation or other entity (other than possibly for crew's
wages or salvage); (e) this Ship Mortgage is binding upon Mortgagor as well
as Mortgagor's successors, representatives, and assigns, and is legally
enforceable in accordance with its terms; (f) the Vessel is and will
continue to be properly registered under the laws of the United States of
America; and (g) so long as part of any Obligations remain unpaid or
unperformed and the Guaranty remains in effect, there shall be no change in
the ownership of the Vessel or any of the shares of Mortgagor without the
prior written consent of Mortgagee. The foregoing representations and
warranties, and all other representations and warranties contained in this
Ship Mortgage, shall be continuing in nature and shall remain in full force
and effect until such time as the Ship Mortgage is cancelled in the manner
provided herein.
Prior Encumbrances. To the extent applicable, Mortgagor shall fully and
timely perform any and all of Mortgagor's obligations under any
Encumbrances affecting the Collateral. Without limiting the foregoing,
Mortgagor shall not commit, or permit to exist, any breach of or default
under any Encumbrances. Mortgagor shall further promptly notify Mortgagee
in writing upon the occurrence of any event or circumstances that would, or
that might, result in a breach of or default under any Encumbrance.
Mortgagor shall further not modify or extend any of the terms of any
Encumbrance or any indebtedness secured thereby, or request or obtain any
additional loans or other extensions of credit from any third party
creditor or creditors whenever such additional loan advances or other
extensions of credit may be directly or indirectly secured, whether by
cross-collateralization or otherwise, by the Collateral, or any part or
parts thereof, with possible preference and priority over the lien and
security interest created by this Ship Mortgage.
Future Encumbrances. Neither Mortgagor, nor any charterer, master or
operator of the Vessel, shall, without the prior written consent of
Mortgagee, grant, or create any Encumbrance, or incur any obligation that
may give rise to an Encumbrance (other than for crew's wages or salvage),
that may affect the Collateral, or any part or parts thereof, nor shall
Mortgagor, or any charterer, master or operator of the Vessel, permit or
consent to any encumbrance attaching to or being filed against the
Collateral, or any part or parts thereof, in favor of anyone other than
Mortgagee. Mortgagor shall further promptly pay
7
when due, or cause to be paid when due, all statements and charges of the
master, crew, seamen, mechanics, materialman, laborers and others incurred
in connection with the alteration, improvement, operation, repair,
maintenance and salvage of the Vessel, or any and all part or parts
thereof, or otherwise furnish appropriate security or bond so that no
Encumbrance may ever attach to or be filed against the Vessel, or any of
Mortgagor's Rights.
Notice of Encumbrances. Mortgagor shall immediately notify Mortgagee in
writing upon the filing of any attachment, lien, judicial process, claim or
other Encumbrance affecting the Collateral, or any part or parts thereof.
Mortgagor additionally agrees to notify Mortgagee immediately in writing,
upon the occurrence of any default, or event that, with the passage of
time, failure to cure, or giving of notice, might result in a default,
under any of Mortgagor's obligations that may be secured by any presently
existing or future Encumbrance, or that may result in an Encumbrance
affecting the Collateral, or any part or parts thereof, or should the
Collateral be seized or attached or levied upon, or threatened by seizure
or attachment or levy, by any person other than Mortgagee, on behalf of
Lenders.
VESSEL INSURANCE REQUIREMENTS AND PROVISIONS. Mortgagor represents, warrants,
and covenants to Mortgagee as follows with respect to insurance and the Vessel:
Required Insurance. So long as this Ship Mortgage remains in effect,
Mortgagor shall keep, at Mortgagor's sole cost, and/or cause others at
their expense to keep the Vessel constantly insured as specified below, as
well as to keep the Vessel insured against such additional risks as may be
commercially reasonable or reasonably specified by Mortgagee from time to
time:
Hull and Machinery Coverage. Mortgagor shall secure an insurance policy
that will provide "All Risk" (including SR&CC) property coverage covering
the Vessel for physical damage at a value that represents 100% of the
Vessel's replacement cost. The policy will include Agreed Amount (waiving
co-insurance) replacement cost valuation, and Liner negligence clause
endorsements. The policy may not have a deductible in excess of 1% of the
replacement cost.
Casino Boat Business Interruption. Mortgagor shall purchase Business
Interruption coverage under a "comprehensive facility" form indemnifying
Mortgagor for loss of net profits and continuing expenses (including debt
service) for loss arising from casualty to the Vessel. The limit purchased
must represent no less than twenty-five million dollars ($25,000,000) in
the aggregate. The policy may not have a deductible in excess of thirty
(30) days.
8
Protection and Indemnity. Mortgagor shall secure a Protection and Indemnity
policy that is written with a one million dollars ($1,000,000) combined
single limit for bodily injury and property damage, including all standard
policy form extensions. The policy will include a comprehensive Pollution
Liability endorsement covering any loss or damage resulting from any
discharge, emission, spillage or leakage on or into any water, including
governmental mandated clean up. The policy shall be written on an
"occurrence form". This policy shall be endorsed to include Mortgagee and
Lenders as additional insureds.
Umbrella/Bumbershoot Liability. Mortgagor shall secure an
Umbrella/Bumbershoot Liability policy with a limit of not less than one
hundred million dollars ($100,000,000) providing excess coverage over all
limits and coverages indicated in the preceding paragraph. The limits can
be obtained by a combination of Primary and Excess Umbrella/Bumbershoot
Liability policies, provided that all layers follow form with the
Protection and Indemnity policy, and are written on an "occurrence" form.
This policy shall be endorsed to include Mortgagee and Lenders as
additional insureds.
Insurance Companies. Mortgagor may purchase such insurance through one or
more marine insurance brokers of its choice, with such insurance being
placed and kept with such American, British, or other insurance companies,
underwriters' associations, clubs, or underwriting funds reasonably
acceptable to Mortgagee. All such insurance policies, including renewals
and replacements, must also be in form, amount, and substance acceptable to
Mortgagee and must additionally contain a noncontributory Mortgagee's loss
payable clause in favor of Mortgagee, providing in part that: (a) all
proceeds and returned premiums under such policies of Insurance will be
paid directly to Mortgagee, on behalf of Lenders; (b) no act or omission on
the part of Mortgagor or any of its officers, agents, employees or
representatives, or the master or crew of the Vessel, or any charterer or
subcharterer thereof, or breach of any warranties contained in such
policies, shall affect the obligations of the Insurer to pay the full
amount of any loss to Mortgagee; (c) such policies may not be cancelled or
altered without thirty (30) days' prior written notice to Mortgagee of such
intended cancellation or alteration, (d) there shall be no recourse against
Mortgagee for the payment of premiums or commissions; and (e) if such
policies provide for the payment of club calls, assessments or advances,
there shall be no recourse against Mortgagee for the payment thereof.
Insurance Policies. Mortgagor agrees to provide Mortgagee with originals or
certified copies of such policies of insurance. Mortgagor further agrees to
promptly furnish Mortgagee with copies of all renewal notices and, if
requested by Mortgagee, with copies of receipts for paid premiums.
Mortgagor shall provide Mortgagee with originals or
9
certified copies of all renewals or replacement policies of insurance no
later than ten (10) days before any such existing policy or policies should
expire.
Casualties and Accidents. Mortgagor agrees to immediately notify Mortgagee
in writing of any material casualty to or accident involving the Vessel,
whether or not such casualty or loss is covered by insurance. Mortgagor
further agrees promptly to notify Mortgagor's insurers and to submit an
appropriate claim and proof of claim to such insurers in the event that the
Vessel, or any part or parts thereof, is lost, damaged, or impaired as a
result of an insured hazard. Mortgagee may submit such a claim and proof of
claim to the insurer on Mortgagor's behalf, should Mortgagor fail to do so
promptly for any reason. Mortgagor hereby irrevocably appoints Mortgagee as
its agent and attorney-in-fact, such agency being coupled with an interest,
to make, settle, and adjust any and all claims under such policy or
policies of insurance and to endorse the name of Mortgagor on any check or
other item of payment for the proceeds thereof; it being understood,
however, that unless one or more Events of Default exist under this Ship
Mortgage, Mortgagee will not settle or adjust any such claims without the
prior approval of Mortgagor (which approval shall not be unreasonably
withheld).
Insurance Certificates or Opinions. Mortgagor will further furnish to
Mortgagee, and Mortgagee may rely upon, a certificate or opinion of a firm
or marine insurance brokers acting for Mortgagor with respect to the
Vessel, as of the date of this Ship Mortgage, stating in effect, that such
insurance complies in all respects to the applicable requirements of this
Ship Mortgage. Annually hereafter, Mortgagor shall further furnish to
Mortgagee a detailed certificate or opinion signed by a qualified firm of
marine insurance brokers as provided above, as to the insurance maintained
by Mortgagor pursuant to this Ship Mortgage, specifying the respective
policies of insurance covering the same, and stating, in effect, that such
insurance complies in all respects with the applicable requirements of this
Ship Mortgage.
Insurance Proceeds. To the extent permitted by applicable law, Mortgagor
agrees to distribute to Players International (by way of dividend, loan or
otherwise) any cash proceeds received by it as a result of the occurrence
of an Event of Loss to which subsection 2.4A(ii)(b) of the Credit Agreement
requires that Players International prepay such proceeds to reduce the then
outstanding Obligations. Mortgagee, on behalf of Lenders, shall have the
right to receive directly any such proceeds. In the event that Mortgagor
should receive any such insurance proceeds, Mortgagor agrees immediately to
turn over such proceeds and to pay the same directly to Mortgagee, on
behalf of Lenders. Notwithstanding the foregoing, if an Event of Default
exists under this Ship Mortgage or the Credit Agreement, Mortgagor agrees
to distribute all proceeds from any Event of Loss to Players International
for immediate distribution to Mortgagee.
10
Mortgagee may apply such proceeds at Mortgagee's sole option and
discretion, in such a manner as Mortgagee may determine (after payment of
all reasonable costs, expenses and attorneys' fees paid or incurred by
Mortgagee in this connection), for the purpose of (a) repairing or
replacing any lost, damaged or impaired portions, parts or components of
the Vessel, as well as payment of any liabilities, salvage or other charges
and expenses (including labor charge due or paid by Mortgagor), that may be
covered by such policies of insurance; or (b) reducing the then outstanding
balance of the Obligations, with such payments to be applied in the manner
provided in this Ship Mortgage. Mortgagee's receipt of such insurance
proceeds and application of such proceeds as provided herein shall not,
however, affect the lien under this Ship Mortgage.
Nothing under this Section shall be deemed to excuse Mortgagor from
Mortgagor's obligations promptly to repair, replace, or restore any lost,
damaged, or destroyed portion, part or component of the Vessel, whether or
not the same may be covered by insurance, and whether or not such proceeds
of insurance are available, and whether such proceeds are sufficient in
amount to complete such repair, replacement, or restoration to the
satisfaction of Mortgagee. Furthermore, unless otherwise confirmed by
Mortgagee in writing, the application or release of any insurance proceeds
by Mortgagee shall not be deemed to cure or waive any Event of Default
under this Ship Mortgage. In the event of an accident or event resulting in
a constructive total loss of the Vessel, Mortgagee shall have the right to
assert a claim on behalf of Mortgagor, and if (a) such claim is accepted by
all underwriters under the policies then in force, and (b) payment in full
thereof is made in cash, then Mortgagee shall have the right to abandon the
Vessel to the underwriters, free from the lien of this Ship Mortgage.
Mortgagee shall also have the right, in its sole discretion, to enter into
any agreement or compromise with regard to the total loss or the
constructive total loss of the Vessel.
TAX REQUIREMENTS AND PROVISIONS. Mortgagor represents, warrants, and covenants
to Mortgagee as follows with respect to taxes relating to the Vessel and this
Ship Mortgage:
Taxes. Mortgagor shall promptly pay, or cause to be paid when due, all
taxes, local and special assessments, and governmental and other charges,
fines, and penalties, of every nature and description, that may from time
to time be imposed, assessed, and levied against the Vessel or against
Mortgagor. Mortgagor further agrees to furnish Mortgagee with evidence that
such taxes, assessments, and governmental and other charges, fines, and
penalties have been paid in full and in a timely manner.
Tax Law Changes. In the event that there should be any change in applicable
law with regard to taxation of ship mortgages or the debts they secure,
Mortgagor agrees to pay
11
any taxes, assessments, or charges that may be imposed upon Mortgagee as a
result of this Ship Mortgage.
ADDITIONAL ADVANCES FOR SPECIFIC PURPOSES. Mortgagee shall have the right,
within Mortgagee's sole option and discretion, to make Additional Advances on
Mortgagor's behalf for any of the following purposes:
Insurance. If Mortgagor should for any reason fail to maintain insurance on
the Vessel as required under this Ship Mortgage, Mortgagee may make
Additional Advances on Mortgagor's behalf for the purpose of purchasing and
maintaining, and Mortgagee may purchase and maintain, such insurance
coverage (including insurance protecting only Mortgagee's interest in the
Vessel).
Taxes. If Mortgagor should for any reason fail to pay promptly when due
taxes, assessments, and governmental charges as required under this Ship
Mortgage, Mortgagee may make Additional Advances on Mortgagor's behalf for
the purpose of paying such taxes, assessments, and governmental and other
charges.
Repairs. If Mortgagor should for an reason fail to make all necessary
repairs to the Vessel and to keep the Vessel in good working order and
seaworthy condition as required under this Ship Mortgage, Mortgagor agrees
that Mortgagee may make Additional Advances on Mortgagor's behalf for the
purpose of making, and Mortgagee may make, such repairs and maintenance to
the Vessel as Mortgagee may deem to be necessary and proper within its sole
discretion. Mortgagee and its agents may board the Vessel at any time, and
from time to time, for the purpose of accomplishing such repairs and
maintenance.
Encumbrances. If Mortgagor should permit or allow any Encumbrance to attach
to or be recorded or filed against the Collateral, without having first
obtained Mortgagee's prior written consent, or if Mortgagor should for any
reason default under any obligation secured by any presently existing or
future Encumbrance, Mortgagee may make Additional Advances on Mortgagor's
behalf and take such other action or actions, as Mortgagee may deem to be
necessary and proper within its sole discretion, to pay and fully satisfy
such obligation and/or Encumbrance, to cure or rectify any such default or
defaults and to prevent future defaults on Mortgagor's part.
Arrest and Seizure of Vessel. Should the Vessel be arrested or detained by
a marshal or other officer of any court of law, equity, or admiralty
jurisdiction or by any government or other authority, and the Vessel not be
released within fifteen (15) days from the date of arrest or detention,
Mortgagee is hereby authorized and empowered to apply for and
12
receive and take possession of the Vessel in the name of Mortgagor.
Mortgagee is further authorized and empowered to appear in any court where
a suit is pending against the Vessel and to take such action as Mortgagee
may deem, within its sole discretion, to be necessary and/or proper to
defend any such suit and/or to obtain the release or discharge of any lien
against the Vessel. All funds and expenses expended or incurred by
Mortgagee for such purposes shall be considered an Additional Advance as
provided under this Ship Mortgage.
Other Purposes. Mortgagee may further make Additional Advances on
Mortgagor's behalf and take such other action or actions as Mortgagee may
deem to be necessary and proper within Mortgagee's sole discretion, to cure
and rectify any actions or inactions on Mortgagor's part, as are required
under this Ship Mortgage, that are not listed immediately above.
No Obligations. Nothing under this Ship Mortgage shall obligate Mortgagee
to make any such Additional Advances or to take any of the above actions on
Mortgagor's behalf, or make Mortgagee in any way responsible or liable for
any loss, damage, or injury to Mortgagor, or to any other person or
persons, resulting from Mortgagee's election not to advance such additional
sums or to take such action or actions. In addition, Mortgagee's election
to make Additional Advances and/or to take the above actions on Mortgagor's
behalf shall not constitute a waiver or forbearance by Mortgagee of any
Event of Default under this Ship Mortgage.
OBLIGATION TO REPAY ADDITIONAL ADVANCES; INTEREST. Mortgagor
unconditionally agrees to repay any and all Additional Advances that Mortgagee
may elect to make on Mortgagor's behalf, together with interest as provided
herein, immediately upon demand by Mortgagee. Mortgagor agrees to pay Mortgagee
interest on Additional Advances at the rate specified in subsection 2.2E of the
Credit Agreement from the date of each such Additional Advance until all such
Additional Advances are repaid in full. Mortgagor's obligations to repay
Additional Advances to Mortgagee, together with interest thereon, shall be
secured by this Ship Mortgage.
ADDITIONAL SECURITY IN RIGHTS. Mortgagor further grants a continuing security
interest in the following property, rights and interests (collectively,
"Rights") in favor of Mortgagee as additional collateral security for the prompt
and punctual payment and performance of the Obligations:
Proceeds. Any and all proceeds of or with regard to the Vessel and
Mortgagor's Rights, including without limitation all proceeds derived or to
be derived from the sale, transfer, conveyance, exchange, insurance loss,
damage, destruction, condemnation, expropriation,
13
or other taking of the Vessel and any unearned insurance premiums relating
thereto, as well as any salvage awards and/or recoveries in general
average, and all other sums due or to become due with respect to the
Vessel, and further including the rights of Mortgagor to receive such
proceeds directly from the obligor or obligors therefor, and to further
enforce any rights that Mortgagor may have to collect such proceeds,
including without limitation Mortgagor's rights to commence an appropriate
collection or enforcement action or actions incident thereto.
Equipment. Any and all of Mortgagor's present and future machinery,
equipment (including gaming equipment), furniture, furnishings and
fixtures, of every type and description, now or hereafter located on the
Vessel or used in connection therewith, together with all accessories,
attachments, accessions, substitutions, replacements and additions thereto,
and all proceeds derived or to be derived therefrom, including without
limitation, any equipment purchased with proceeds, and all insurance
proceeds and refunds of insurance proceeds, if any, and any sums that may
be due from third parties who may cause damage of any of the foregoing, or
from any insurer, whether due to judgment, settlement or other process, and
any and all present and future accounts, chattel paper, instruments, notes
and monies that may be derived from the sale, lease or other disposition of
any of the foregoing and any rights of Mortgagor to collect or enforce
payment thereof, and all present and future general intangibles of
Mortgagor in any way related or pertaining to the ownership, operation or
use of the foregoing.
Leases, Charters, Rents, and Profits. Any and all present and future leases
or charters affecting the Vessel, including without limitation any and all
rents, income, profits, bonuses, revenues, royalties, cash or security
deposit, advance rentals, and other payments, and further including
Mortgagor's rights to enforce such leases or charters and to receive and
endorse any rights that Mortgagor might have to collect such payments.
Earnings and Other Revenues. Any and all present and future freight, hire,
earnings, issues, revenues, accounts, assets, payments, income, and profits
derived or to be derived from the use or operation of the Vessel, or any
part or parts thereof, including the rights of Mortgagor to receive such
payment directly from the obligor or obligors thereof, and to further
enforce any rights that Mortgagor collect such payments, including, but not
limited to, Mortgagor's rights to commence an appropriate collection or
enforcement action or actions incident thereto.
Deposits. Any and all present and future deposits or other security or
advance payments, including rental payments made by or on behalf of
Mortgagor to others, with respect to (a) moorage or dockage of the Vessel,
(b) cleaning, maintenance, repair or similar
14
services regarding the Vessel, and (c) rentals of equipment, if any, used
in the operation by or on behalf of Mortgagor regarding the Vessel.
Option. Any and all present and future options to sell, lease, or charter
the Vessel or any interest in the Vessel.
Other Rights. Any and all of Mortgagor's present and future contract
rights, general intangibles, instruments, and documents necessary for use
or useful in connection with the ownership and operation of the Vessel,
whether now existing or hereafter created or otherwise acquired by
Mortgagor, and all liens, security interests, guaranties, remedies,
privileges, and other rights pertaining thereto, and all rights and
remedies of any kind forming the subject matter thereof, as well as all
records and data relating to any of the foregoing or to the Vessel, whether
in the form of a writing, photograph, microfilm, microfiche, or electronic
media, together with all of Mortgagor's right, title, and interest in and
to all programming and software required to utilize, create, maintain, and
process any such records or data on electronic media.
REPRESENTATIONS AND WARRANTIES CONCERNING RIGHTS. Mortgagor represents,
warrants, and covenants to Mortgagee as follows with respect to the aforesaid
Rights:
Specific Representations and Warranties. (a) Mortgagor is (or with respect
to future Rights, will be at the time of acquisition of the future
Right(s)) the sole lawful owner of all the aforesaid Rights; (b) Mortgagor
has the right to grant a security interest in such Rights in favor of
Mortgagee, on behalf of Lenders; (c) Mortgagor has not made any previous
assignments or pledges or otherwise encumbered any of Mortgagor's Rights;
(d) to the extent applicable, all of Mortgagor's Rights that consist of or
give rise to obligations of third parties, represent and/or will at all
times continue to represent bona fide obligations of the obligor
thereunder, free of any offset, compensation, deduction, or counterclaim;
and (e) the security interest granted hereunder as affecting Mortgagor's
Rights is binding upon Mortgagor, as well as Mortgagor's successors,
representatives, and assigns, and is legally enforceable in accordance with
the terms and conditions of this Ship Mortgage.
Additional Obligations of Mortgagor with Regard to the Rights. Mortgagor
additionally agrees (a) so long as this Ship Mortgage remains in effect,
Mortgagor will not, without the prior written consent of Mortgagee, sell,
transfer, assign, pledge, or grant, or create or permit to exist any lien
or security interest in or against any of Mortgagor's Rights, in favor of
any person other than Mortgagee; (b) Mortgagor shall not, without the prior
written consent of Mortgagee, compromise, settle, adjust, or extend payment
under or with regard to any of Mortgagor's Rights; and (c) Mortgagor will
keep proper books
15
and records with regard to Mortgagor's business activities and Rights, in
accordance with generally accepted accounting principles, applied on a
consistent basis throughout, which books and records shall at all
reasonable times be open to inspection and copying by Mortgagee or its
designated agents. Mortgagee also shall have the right to inspect
Mortgagor's books and records and to discuss Mortgagor's affairs and
finances with Mortgagor's officers and representatives, at such reasonable
times as Mortgagee may designate.
Notice to Obligors. Upon request by Mortgagee, Mortgagor immediately will
notify individual obligors under Mortgagor's Rights, advising such obligors
of the fact that their respective agreements and/or obligations have been
assigned and pledged to Mortgagee. In the event that Mortgagor should fail
to provide such notices for any reason upon request by Mortgagee, Mortgagor
agrees that Mortgagee may forward appropriate notices to such obligors,
either in Mortgagee's name or the name of Mortgagor. Mortgagee or its
agents also may periodically contact individual obligors to verify the
amounts then owing under such obligation, to determine whether such
obligors have any offsets or counterclaims against Mortgagor, and to
inquire about such other matters as Mortgagee may deem necessary or
desirable.
Protection of Rights. Mortgagor will at all times protect and preserve all
of Mortgagor's Rights.
Mortgagee's Right to Collect Directly and Receive Proceeds and Payments
After Event of Default. If an Event of Default shall exist under this Ship
Mortgage or under the Credit Agreement, Mortgagee shall have the right, at
its sole option and election, at any time, to collect directly and receive
all proceeds and payments arising under or in any way accruing from
Mortgagor's Rights, as such amounts become due and payable. In order to
permit the foregoing, Mortgagor unconditionally agrees to deliver to
Mortgagee, immediately following demand, any and all of Mortgagor's
records, ledger sheets and all other documents in the form requested by
Mortgagee, with regard to Mortgagor's Rights and any and all proceeds and
payments applicable thereto. Mortgagee shall have the further right, where
appropriate and within Mortgagee's sole discretion, to file suit, either in
Mortgagee's own name or in the name of Mortgagor, to collect any and all
proceeds and payments that may now and/or in the future be due and owing
under and/or as a result of such Rights. Where it is necessary for
Mortgagee to attempt to collect any such proceeds or payments from the
obligors or debtors therefor, Mortgagee may compromise, settle, extend, or
renew for any period (whether or not longer than the original period) any
indebtedness thereunder or evidenced thereby, or surrender release, or
exchange all or any part of said indebtedness, without affecting the
liability of Mortgagor under this Ship Mortgage or the Guarantied
Obligations. To that end, Mortgagor hereby irrevocably
16
constitutes and appoints Mortgagee as Mortgagor's attorney-in-fact, coupled
with an interest and with full power of substitution, to take any and all
such actions and any and all other actions permitted hereby, either in the
name of Mortgagor or Mortgagee.
EVENTS OF DEFAULT. Each of the following actions and/or inactions shall
constitute an Event of Default under this Ship Mortgage.
Event of Default under the Credit Agreement. The occurrence of an "Event of
Default" as defined in the Credit Agreement.
Default under the Guaranty. Mortgagor's failure to perform its obligations
under the Guaranty.
Default under this Ship Mortgage. Mortgagor's violation or failure to
comply fully with any of the terms and conditions of, or default under this
Ship Mortgage and/or any of the additional obligations incurred or assumed
by Mortgagor hereunder.
Failure to Pay Additional Advances. Mortgagor's failure to pay any
Additional Advance, together with interest thereon, as provided in this
Ship Mortgage, upon demand by Mortgagee.
False Statements. If any representation or warranty of Mortgagor made in
this Ship Mortgage or otherwise in connection with any indebtedness secured
by this Ship Mortgage proves to be incorrect or misleading in any material
respect.
MORTGAGEE'S RIGHTS UPON DEFAULT. Should one or more Events of Default occur or
exist under this Ship Mortgage, as provided above, Mortgagee shall have the
right, at its sole option, to accelerate payment in full of any and all of the
Obligations and to declare the same to be immediately due and payable, without
further notice to, or demand of Mortgagor, and without formally placing
Mortgagor in default hereof or hereunder. Mortgagee shall then have the right to
commence appropriate foreclosure proceedings against the Vessel and against the
Rights without further notice to and/or demand of Mortgagor, and without placing
Mortgagor in default hereof or hereunder. In addition, Mortgagee shall have the
right, at its sole and exclusive option and discretion, to take any one or more
of the following actions to the full extent permitted by applicable law:
(a) Exercise all the rights and remedies in foreclosure and/or as
otherwise given to mortgagees generally by laws of the United States
of America or other applicable provisions of law, including without
limitation the laws of any jurisdiction in which the Vessel and other
Collateral may then be found;
17
(b) Take and enter into possession of the Vessel at any time wherever
the same may be located, without legal process and without being
responsible for any loss or damage to Mortgagor or any other third
party. Mortgagor and all other persons then in possession of the
Vessel, shall forthwith, upon demand by Mortgagee, surrender
possession of the Vessel and Mortgagee may, without being responsible
for any loss or damage to Mortgagor or any other third party, hold,
lay up, lease, charter, operate, or otherwise use the Vessel for such
time and under such terms as Mortgagee may deem to be in its best
interest and advantage. Mortgagee may further demand, collect, and
retain all proceeds, payments, and other Rights and any and all other
sums due or to become due with respect to the Vessel or with respect
to any insurance thereon, from any person whatsoever, provided that
the gross amount of all such proceeds or other amounts and sums
referred to above (after deducting any costs or expenses of Mortgagee
therefrom), received by Mortgagee, shall, promptly upon receipt, be
applied in accordance with the provisions of this Ship Mortgage;
(c) Take and enter into possession of the Vessel at any time, wherever
the same may be located, with or without legal process, and if it
seems desirable to Mortgagee and without being responsible for any
loss or damage to Mortgagor or any other third party, sell the Vessel,
whether in whole or in component parts, at public or private sale,
without survey or appraisal, at any place and at any such time as
Mortgagee may specify, and in such manner as Mortgagee may deem
advisable, free from any claim by Mortgagor in admiralty, in equity,
at law, or by statute, after first giving public notice of the time
and place of sale with a general description of the mortgaged Vessel.
(d) Exercise any rights, privileges, and remedies in foreclosure
otherwise given to Mortgagee by any other instrument securing the
Guarantied Obligations; and
(e) Any sale of the Vessel and/or its component parts made pursuant to
this Ship Mortgage, whether under the power of sale hereby granted or
in any judicial proceeding, shall operate to divest Mortgagor of all
rights, title and interest of any nature whatsoever, and shall bar
Mortgagor and Mortgagor's successors and assigns, and all other
persons claiming by, through or under them, from any and all further
rights, claims or interest in or to the Vessel and its components. The
purchaser of the Vessel shall not be bound to inquire whether notice
has been given, or whether any Event of Default has occurred, or as to
the propriety of the sale, or as to the application of the proceeds of
the sale. In any such sale, Mortgagee may bid for and may purchase the
Vessel in the form of compensation
18
against Mortgagor's then outstanding indebtedness. Upon compliance
with the terms of sale, Mortgagee may hold, retain, and dispose of the
Vessel without further accountability therefor.
Attorney-In-Fact. Mortgagee is hereby irrevocably appointed Mortgagor's
attorney-in-fact, coupled with an interest and with full powers of
substitution, to execute and deliver to any purchaser of the Vessel as
provided above, and is hereby vested with full power and authority to make,
in the name and on behalf of Mortgagee, a good conveyance to the title to
the Vessel and/or its component parts sold. In the event that the sale of
the Vessel and/or component parts under any power of sale herein contained,
Mortgagor will, if and when required by Mortgagee, execute such form of
conveyance of the Vessel and its component parts as Mortgagee may direct or
approve.
Appointment of Receiver. If any legal proceeding shall be taken to enforce
any rights under the Ship Mortgage, Mortgagee shall be entitled as a matter
of right to the appointment of a receiver of the Vessel and of Mortgagor's
proceeds, payment, and other Rights. Such a receiver shall be entitled to
reasonable compensation, which additional compensation shall be secured by
this Ship Mortgage in the form of an Additional Advance as provided herein.
Additional Expenses. In the event that it should become necessary for
Mortgagee to conduct a search for the Vessel and/or to store such Vessel,
Mortgagor agrees to reimburse Mortgagee for the cost of conducting such a
search and/or storing the Vessel, which additional expenses shall also be
secured by the lien of this Ship Mortgage in the form of an Additional
Advance as provided herein.
Separate Sale of Mortgagor's Rights Following Default. Mortgagee shall have
the additional right, at its sole option, separately to sell Mortgagor's
aforesaid Rights or any part or parts thereof, at private or public sale,
at such price or prices as Mortgagee may deem best, either for cash or for
any other compensation, or on credit, or for future delivery, without the
assumption of any credit risk. The sale of Mortgagor's aforesaid Rights may
be without appraisement, the benefit of which is also expressly waived by
Mortgagor. Mortgagor expressly grants to Mortgagee the full and irrevocable
power, coupled with an interest, to sell Mortgagor's aforesaid Rights, or
any part or parts thereof, in the manner herein specified without the
intervention of any court and without any formalities other than those
provided herein. For purposes of selling Mortgagor's aforesaid Rights,
Mortgagee is hereby made and constituted the agent of Mortgagor, such
agency being coupled with an interest. [Insofar as the validity or
perfection of the security interests hereunder or the remedies hereunder
with respect to the Rights are governed by the laws of the State of
Louisiana, Mortgagor agrees as follows:
19
(a) For purposes of executory process, Mortgagor acknowledges the
Obligations secured hereby, whether now existing or to arise
hereafter, and confesses judgment thereon if not paid when due. Upon
the occurrence of an Event of Default and at any time thereafter so
long as the same shall be continuing, and in addition to all other
rights and remedies granted Mortgagee hereunder, it shall be lawful
for and Mortgagor hereby authorizes Mortgagee, without making a demand
or putting Mortgagor in default, a putting in default being expressly
waived, to cause all and singular the Rights to be seized and sold
after due process of law, Mortgagor waiving the benefit of any and all
laws or parts of laws relative to the appraisement of property seized
and sold under executory process or other legal process, and
consenting that the Rights be sold without appraisement, either in its
entirety, or in lots or parcels, as Mortgagee may determine, to the
highest bidder for cash or on such other terms as Mortgagee and such
proceedings may direct. Mortgagee shall be granted all the rights and
remedies granted it hereunder as well as all of the rights and
remedies granted a secured party under Louisiana law including under
the Uniform Commercial Code then in effect in Louisiana.
(b) Mortgagor hereby waives:
(i) the benefit of appraisement provided for in Articles 2332,
2336, 2723 and 2724 of the Louisiana Code of Civil Procedure and
all other laws conferring the same;
(ii) the demand and three days notice of demand as provided in
Articles 2639 and 2721 of the Louisiana Code of Civil Procedure;
(iii) the notice of seizure provided by Articles 2293 and
2721 of the Louisiana Code of Civil Procedure; and
(iv) the three days delay provided in Articles 2331 and 2722 of
the Louisiana Code of Civil Procedure.
(c) In the event the Rights or any part thereof is seized as an
incident to an action for the recognition or enforcement of this Ship
Mortgage by executory process, ordinary process, sequestration, writ
of fieri facias, or otherwise, Mortgagor agrees that the court issuing
such order shall, if petitioned for by Mortgagee, direct the
applicable sheriff to appoint as a keeper of the Rights, Mortgagee or
any agent or representative designated by Mortgagee or any person
named by Mortgagee at the time such seizure is effected. This
designation is
20
made pursuant to La. R.S. 9:5136 et seq., as the same may be amended,
and Mortgagee shall be entitled to all of the rights and benefits
accorded thereunder. The keeper shall be entitled to receive
reasonable compensation for its services which shall be paid by
Mortgagor and, upon Mortgagor's failure to pay, Mortgagee may make
Additional Advances on Mortgagor's behalf, the repayment of which
shall be secured by this Ship Mortgage. The designation of keeper made
herein shall not be deemed to require Mortgagee to provoke the
appointment of such a keeper.] [Insert bracketed language in Louisiana
Mortgage only.]
Automatic Transfer of Rights. In the event of foreclosure under this Ship
Mortgage or other transfer of title or assignment of the Vessel, or any
part or parts thereof, in lieu of payment of the Indebtedness or amounts
payable under the Guaranty, whether in whole or in part, all policies of
insurance and other Rights applicable to the foreclosed upon or transferred
Vessel shall automatically inure to the benefit of and shall pass to the
purchasers or transferees thereof, subject to the rights of the purchasers
or transferees to reject such insurance coverage or Rights at its or their
sole option and election.
Specific Performance. Mortgagee may, in addition to the foregoing remedies,
or in lieu thereof, in Mortgagee's sole discretion, commence an appropriate
action against Mortgagor seeking specific performance of any covenant
contained herein or in aid of the execution or enforcement of any power
herein granted.
Cumulative Remedies. Mortgagee's remedies as provided herein shall be
cumulative in nature, and nothing under this Ship Mortgage shall be
construed as to limit or restrict the options and remedies available to
Mortgagee following Mortgagor's default, or to in any way limit or restrict
the rights and ability of Mortgagee to proceed directly against Mortgagor
or against any guarantor, surety or endorser of the Indebtedness or to
proceed against other collateral directly or indirectly securing the
Indebtedness.
PROTECTION OF MORTGAGEE'S SECURITY RIGHTS. Mortgagor will be fully responsible
for any losses that Mortgagee may suffer as a result of anyone other than
Mortgagee asserting any rights or interest in or to the Vessel and/or
Mortgagor's Rights. Mortgagor agrees to appear in and to defend all actions or
proceedings purporting to affect Mortgagee's security interest in the Vessel
and/or Rights subject to this Ship Mortgage and any of the rights and powers
granted Mortgagee hereunder. In the event that Mortgagor fails to do what is
required of Mortgagor under this Ship Mortgage, or if any action or proceeding
is commenced naming Mortgagee as a party or affecting Mortgagee's security
interests or the rights and powers granted to Mortgagee under this Ship
Mortgage, then Mortgagee may, without releasing Mortgagor from any of
Mortgagor's obligations under this Ship Mortgage, do whatever Mortgagee believes
to be
21
necessary and appropriate within its sole discretion, including making
Additional Advances on Mortgagor's behalf as provided herein, to protect the
security of this Ship Mortgage.
INDEMNIFICATION BY MORTGAGOR. Mortgagor agrees to indemnify, to defend, and to
save Mortgagee, each Lender and the officers, directors, employees, agents and
affiliates of Mortgagee and each Lender harmless from any and all claims, suits,
obligations, damages, losses, costs, expenses (including without limitation
Mortgagee's attorneys' fees), demands, liabilities, penalties, fines, and
forfeitures of any nature whatsoever that may be asserted against or incurred by
Mortgagee arising out of or in any manner occasioned by this Ship Mortgage and
the exercise of the rights and remedies granted Mortgagee hereunder, and
Mortgagor's obligations to so indemnify, defend, and hold Mortgagee harmless
shall be secured by this Ship Mortgage. The foregoing indemnity provision shall
survive the cancellation of this Ship Mortgage as to all matters arising or
accruing prior to such cancellation, and the foregoing indemnity provisions
shall survive in the event that Mortgagee elects to exercise any of its remedies
as provided under this Ship Mortgage following any Event of Default hereunder.
EXECUTION OF ADDITIONAL DOCUMENTS. Mortgagor agrees to execute all additional
documents, instruments, UCC Financing Statements, and other agreements that
Mortgagee may deem to be necessary and appropriate, within its sole discretion,
in form and substance satisfactory to Mortgagee, to keep this Ship Mortgage in
effect, to better reflect the true intent of this Ship Mortgage, and to
consummate fully all of the transactions contemplated hereby and by any other
Related Documents heretofore, now or at any time or times hereafter executed by
Mortgagor and delivered to Mortgagee.
APPLICATION OF PAYMENTS. Unless specified otherwise herein or in the Credit
Agreement, Mortgagor agrees that all payments and other sums and amounts
received by Mortgagee in respect of this Ship Mortgage, shall be applied: first,
to reimburse Mortgagee for its costs of collecting the same (including but not
limited to, reimbursement of Mortgagee's reasonable attorneys' fees); second, to
the repayment of interest on all Additional Advances that Mortgagee may have
made on Mortgagor's behalf pursuant to this Ship Mortgage; third, to the payment
of principal of all such Additional Advances; and finally, to the payment of
principal and interest on the Indebtedness then outstanding or any amount
payable under any other Obligations, which may be applied in such order and
priority as Mortgagee may determine within its sole discretion.
ADDITIONAL REPRESENTATIONS AND WARRANTIES. Mortgagor further represents,
warrants, and covenants that:
Existence and Good Standing. Mortgagor is and shall at all times hereafter
be duly organized and existing in good standing under the laws of the State
of ___________, and
22
shall at all times be properly qualified to do business and in good
standing in each jurisdiction in which the nature of its business requires
such qualification. Mortgagor is a "Citizen of the United States" within
the meaning of the Ship Mortgage Laws entitled to own and operate the
Vessel under its marine document, which Mortgagor shall maintain in full
force and effect. Mortgagor shall do all things necessary to preserve and
to keep in full force and effect its existence, rights, and privileges, and
shall comply with all regulations, rules, ordinances, statutes (including
without limitation the Ship Mortgage Laws), orders, and decrees of any
governmental or quasi-governmental authority or court applicable to
Mortgagor and Mortgagor's business activities.
Requisite Authority. The execution, delivery, and performance of this Ship
Mortgage and all other agreements, instruments, and documents contemplated
hereby or relating to or the granting of the security interests provided
hereunder will not breach or constitute a default by Mortgagor under any
other agreement or document to which Mortgagor is a party or by which
Mortgagor or its property is bound.
Consents and Approvals. If notice to or the consent of approval of any
governmental body or authority or any third party, including without
limitation any other creditor of Mortgagor, is now or any time hereafter
required in connection with the execution, delivery, and performance by
Mortgagor of this Ship Mortgage, then (a) with respect to all currently
applicable requirements, such notice has been given and such consent or
approval obtained by Mortgagor prior to the execution hereof and written
evidence thereof has been concurrently herewith delivered to Mortgagee, and
(b) with respect to such requirements which shall at any time hereafter be
imposed or become applicable, such notice will be given and such consent or
approval will be obtained by Mortgagor prior to the time such failure to do
so will constitute a violation of law or result in any breach, default, or
forfeiture by Mortgagor under any contract or instrument, and written
evidence thereof will at such time be delivered to Mortgagee.
Perfection of Security Interests. Except for the recordation of this Ship
Mortgage and the filing of UCC-1 Financing Statements with regard to
perfection of the security interest in Mortgagor's Rights, no other filing
or recording is necessary or advisable in any jurisdiction or before or
with any governmental or private regulatory body in order to establish and
perfect Mortgagee's preferred lien and security interest in the Vessel or
Mortgagor's Rights with respect to Mortgagor or any of Mortgagor's present
or future creditors or any other third party whatsoever. Mortgagee may at
any time, and without further authorization from Mortgagor, file a carbon,
photographic, facsimile, or other reproduction of a UCC-1 Financing
Statement or of this Ship Mortgage for use as a financing statement.
Mortgagor will reimburse Mortgagee for all expenses for the
23
perfection, termination, and the continuation of the perfection of
Mortgagee's preferred lien and security interest in the Collateral.
Financial Statements. All financial statements and information relating to
Mortgagor, which have been or may hereafter be submitted to Mortgagee, are
and will continue to be complete, true, and correct.
No Change in Financial Condition. There has been no material adverse change
in the financial condition of Mortgagor since the latest submission of any
such financial information to Mortgagee. Mortgagor shall notify Mortgagee
in writing immediately upon the occurrence of any such material adverse
change.
Additional Documents. Mortgagor agrees to deliver to Mortgagee such other
documents, including without limitation such legal opinions as Mortgagee
may reasonably request, to show Mortgagor's compliance with the foregoing
and with the other warranties and covenants of Mortgagor contained in this
Ship Mortgage and the Related Documents.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Ship Mortgage:
Amendments. This Ship Mortgage, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Ship Mortgage. No alteration of or amendment to
this Ship Mortgage shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
Applicable Law. This Ship Mortgage shall be governed and construed in
accordance with the laws of the United States of America and, to the extent
applicable, of the State of ------------------.
Attorneys' Fees; Expenses. Mortgagor agrees to pay upon demand all of
Mortgagee's costs and expenses, including attorneys' fees and legal
expenses, incurred in connection with the enforcement of this Ship
Mortgage. Mortgagee may pay someone else to help enforce this Ship
Mortgage, and Mortgagor shall pay the costs and expenses of such
enforcement. Costs and expenses include Mortgagee's attorneys fees and
legal expenses whether or not there is a lawsuit, including attorneys' fees
and legal expenses for bankruptcy proceedings and including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Mortgagor also shall pay all
court costs and such additional fees as may be directed by the court.
24
Caption Headings. Captioned headings of the sections of this Ship Mortgage
are for convenience purposes only and are not to be used to interpret or to
define their provisions.
Effect of Waivers. Any failure or delay on the part of Mortgagee to
exercise any of the rights and remedies granted under this Ship Mortgage or
under any other agreement or agreements by and between Mortgagor and
Mortgagee, shall not have the effect of waiving any of Mortgagee's rights
and remedies. Any partial exercise of any rights and remedies granted to
Mortgagee shall furthermore not constitute a waiver of any of Mortgagee's
other rights and remedies, it being Mortgagor's intent and agreement that
Mortgagee's rights and remedies shall be cumulative in nature. Furthermore,
any failure or delay on the part of Mortgagee at any time or times
hereafter to require strict performance by Mortgagor of any of the
provisions, warranties, terms, and conditions contained herein or in any
other agreement, document, or instrument now or hereafter executed by
Mortgagor and delivered to Mortgagee, shall not waive, affect, or diminish
the rights of Mortgagee thereafter to demand strict compliance and
performance therewith and with respect to all other provisions, warranties,
terms, and conditions contained herein or therein. None of the warranties,
conditions, provisions, and terms contained in this Ship Mortgage or any
other agreement, document, or instrument now or hereafter executed by
Mortgagor and delivered to Mortgagee, shall be deemed to have been waived
by any act or knowledge of Mortgagee, its agents, officers, or employees,
but only by an instrument in writing specifying such waiver, signed by a
duly authorized officer of Mortgagee, and delivered to Mortgagor. A waiver
or forbearance on the part of Mortgagee as to one Event of Default shall
not constitute a waiver or forbearance as to any other or subsequent
default.
Multiple Counterparts. This Ship Mortgage may be executed in any number or
counterparts, each of which shall be an original; but such counterparts
shall together constitute one and the same instrument.
Notice. Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing
and may be personally served, or sent by certified or registered United
States mail or courier service or by telex or telefacsimile and confirmed
by courier and shall be deemed to have been given when delivered in person
or by courier service, or five days after depositing it in the United
States mail with postage prepaid and properly addressed; provided that
notices to Mortgagee shall not be effective until received.
25
For the purposes of this Ship Mortgage, the notice address of Mortgagor and
Mortgagee are as follows:
Mortgagor:
______________________________
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: President and Chief Financial Officer
With copies to:
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
Mortgagee:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxx
Any party by proper written notice hereunder to the other party may change
the address to which notices shall thereafter be sent.
Severability. If any provision of this Ship Mortgage is held to be invalid,
illegal, or unenforceable by any court or constitute a waiver of the
preferred status of any rights or remedies of Mortgagee under this Ship
Mortgage, this Ship Mortgage shall be interpreted as if the invalid
provision had never been a part of this Ship Mortgage.
Sole Discretion of Mortgagee. Whenever Mortgagee's consent or approval is
required under this Ship Mortgage, the decision as to whether or not to
grant or approve shall be in
26
the sole and exclusive discretion of Mortgagee, and Mortgagee's decision
shall be final and conclusive.
Successors and Assigns Bound; Joint and Several Liability. Mortgagor's
obligations and agreements under this Ship Mortgage shall be binding upon
Mortgagor's successors, administrators, and assigns. In the event that
there is more than one Mortgagor under this Ship Mortgage, all of the
agreements and obligations made and/or incurred by any Mortgagor under this
Ship Mortgage shall be on a "joint and several" basis.
Ship Mortgage Laws. For purposes of this Ship Mortgage and in order to
comply with the Ship Mortgage Laws, Mortgagor does hereby declare as
follows: (a) the total amount of the Obligations that is or may become
secured by this Ship Mortgage (excluding interest, expenses, Additional
Advances and fees) is $______________; (b) the address of Mortgagor and the
address of Mortgagee are set forth in the Notice section of this Ship
Mortgage; and (c) the interest of Mortgagor in the Vessel is the entire
100% interest, and the interest mortgaged herein covers the entire 100%
interest in the Vessel.
27
IN WITNESS WHEREOF, this Ship Mortgage has been executed and delivered by
Mortgagor as of the day, month, and year first above written.
WITNESSES: Mortgagor:
SOUTHERN ILLINOIS RIVERBOAT/
CASINO CRUISES, INC.
___________________________ By: ________________________________
Name: ______________________________
___________________________ Title: _____________________________
Notice Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxx
S-1
WITNESSES: Mortgagor:
PLAYERS LAKE XXXXXXX, INC.
___________________________ By: _____________________________
Name: ___________________________
___________________________ Title: __________________________
Notice Address:
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: President and Chief Financial
Officer
With copies to:
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
S-1
WITNESSES: Mortgagor:
SHOWBOAT STAR PARTNERSHIP
___________________________ By: _____________________________
Name: ___________________________
___________________________ Title: __________________________
Notice Address:
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: President and Chief Financial
Officer
With copies to:
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
c/o Players International, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
S-1
WITNESSES: Mortgagee:
FIRST INTERSTATE BANK OF NEVADA,
N.A.
___________________________ By: _____________________________
Name: ___________________________
___________________________ Title: __________________________
Notice Address:
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxx
X-0
XXXXXXXXXXXXXX
XXXXX XX
XXXXXX XX
Xx this _______ day of __________________, 1995, before me personally
appeared ______________________________________, to me known, being by me duly
sworn, did depose and say that he is the _________________ of
____________________, Mortgagor described in and which executed the foregoing
Ship Mortgage; that said Ship Mortgage was signed on behalf of said corporation
by authority of the Board of Directors of said corporation, that he signed his
name thereto by like authority and acknowledged the foregoing Ship Mortgage as
the free act and deed of said corporation.
____________________________________________
Notary Public
My Commission Expires: ____________________
S-2
