EXHIBIT 10.58
MASTER VESSEL AND COLLATERAL TRUST AGREEMENT
Dated as of August __, 0000
Xxxxxxx
XXXXX XXXXXXXXXX XXXX XX XXXXXX, X.X.,
as Administrative Agent
and
FIRST INTERSTATE BANK OF NEVADA, N.A.,
as Trustee.
TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
GRANTING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I - DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II - DECLARATION OF TRUST. . . . . . . . . . . . . . . . . . . .3
ARTICLE III - TRANSFER OF PROPERTY TO TRUST . . . . . . . . . . . . . . .4
ARTICLE IV - DUTIES OF THE TRUSTEE . . . . . . . . . . . . . . . . . . .5
ARTICLE V - CONCERNING THE TRUSTEE. . . . . . . . . . . . . . . . . . .6
ARTICLE VI - INDEMNIFICATION OF THE TRUSTEE BY THE
BORROWER. . . . . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE VII - TRANSFER OF THE ADMINISTRATIVE AGENT'S
INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE VIII - PROCEDURE FOR ENFORCEMENT . . . . . . . . . . . . . . . . .9
ARTICLE IX - PAYMENTS TO THE ADMINISTRATIVE AGENT AND
DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE X - COMPENSATION OF THE TRUSTEE . . . . . . . . . . . . . . . 11
ARTICLE XI - REMOVAL, DISQUALIFICATION OR RESIGNATION
OF THE TRUSTEE; SUCCESSOR TRUSTEES. . . . . . . . . . . . 12
ARTICLE XII - TERMINATION AND DISCHARGE OF TRUST. . . . . . . . . . . . 14
ARTICLE XIII - AMENDMENT OF TRUST AGREEMENT . . . . . . . . . . . . 14
ARTICLE XIV - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 15
-i-
SCHEDULE A - DESCRIPTION OF SHIPS
EXHIBIT A - TRUST RECEIPT
-ii-
MASTER VESSEL AND COLLATERAL TRUST AGREEMENT
THIS MASTER VESSEL AND COLLATERAL TRUST AGREEMENT (this "Trust
Agreement") is made and entered into as of August __, 1995 between (A) First
Interstate Bank of Nevada, N.A., as administrative agent (the "Administrative
Agent") on behalf of itself and the Lenders (as defined below), and (B) First
Interstate Bank of Nevada, N.A., as trustee (the "Trustee"). Capitalized terms
used herein and not otherwise defined herein shall have the same meanings
ascribed to them as set forth in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS,
(A) Players International, Inc. (the "Borrower"), the financial
institutions party thereto from time to time (the "Lenders") and First
Interstate Bank of Nevada, N.A., individually and as Administrative Agent, a
Managing Agent and a Co-Arranger, Bankers Trust Company, individually and as a
Managing Agent, and BT Securities Corporation, as a Co-Arranger, have entered
into a Credit Agreement, dated as of August , 1995 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), providing for the
making of the Loans and the issuance of, and participation in, Letters of Credit
as contemplated therein (the Lenders and the Administrative Agent are herein
called the "Secured Creditors");
(B) It is a condition precedent to the making of the Loans and the
issuance of the Letters of Credit under the Credit Agreement that the Borrower
and its Subsidiaries have entered into certain Collateral Documents to secure
the obligations of the Borrower under the Loan Documents;
(C) Pursuant to the Credit Agreement the Borrower (i) shall cause to
be granted to the Trustee, solely for the benefit of the Administrative Agent,
as agent for itself and the Lenders, a mortgage on each Ship described in the
Credit Agreement pursuant to the Ship Mortgages; and
(D) The Administrative Agent and the other Secured Creditors desire
the Trustee to hold the Trust Estate pursuant to the provisions of this Trust
Agreement, and the Trustee is willing to hold the Trust Estate in accordance
with the provisions hereof, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises, and subject
to the terms and conditions provided herein, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. For all purposes of this Trust Agreement, the following
terms shall have the meanings specified below and such meanings are equally
applicable both to the singular and plural forms of the terms defined where
appropriate:
(a) "Actual Knowledge" shall mean actual knowledge of of First
Interstate Bank of Nevada, N.A., as Trustee in who, in the normal performance of
his or her operational duties, would have knowledge of such matters and the
requirements with respect thereto.
(b) "Enforcement" shall mean the exercise of any remedy provided for
under a Ship Security Instrument or otherwise available by applicable law upon
the occurrence of an event of default under the Mortgages or the Credit
Agreement.
(c) "MARAD" shall mean the United States Maritime Administration, and
any predecessor or successor agency or the Secretary of Transportation of the
United States of America, acting by and through the Maritime Administrator, as
the context of the United States Maritime Laws may require.
(d) "Mortgages" shall mean each Ship Mortgage executed or to be
executed in favor of the Trustee pursuant to the Credit Agreement, as amended,
supplemented or modified from time to time.
(e) "Ship" shall mean any, and "Ships" shall mean all, of the ships on
which a Mortgage may be granted from time to time in favor of the Trustee
pursuant to the Credit Agreement, as more particularly described in Schedule A
attached hereto.
(f) "Ship Security Instrument" shall refer to any preferred ship
mortgage made pursuant to Chapter 313 of Title 46 of the United States Code, as
amended, the Mortgages, or other agreement or document creating any security
interest or any other interest in a United States Ship.
(g) "Trust Agreement" shall mean this Agreement as amended,
supplemented or otherwise modified from time to time, together with all Exhibits
hereto.
(h) "Trust Estate" shall mean, and consist of, (i) the Ship Security
Instruments and (ii) the Ships, charter earnings, insurance proceeds, funds and
other property which the
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Trustee acquires in its capacity as Trustee or Mortgagee in connection with the
Mortgages, either of the Ships, charter earnings or insurance proceeds.
(i) "Trust Receipt" shall mean a receipt, substantially in the form of
Exhibit A hereto, given by the Trustee to the Administrative Agent upon receipt
of any Ship Security Instrument.
(j) "Trustee" shall have the meaning given that term in the Preamble,
and any successor Trustee.
(k) "United States Maritime Laws" shall mean all provisions of United
States law restricting or pertaining to the operation of a Ship or to the
transfer to persons not citizens of the United States of any interest of
whatsoever nature in, or of beneficial control of, Ships, including, but not
limited to, the Shipping Xxx, 0000, as amended (46 U.S.C. 801 et seq.) and
particularly Sections 2, 9 and 37 thereof (46 U.S.C. 802, 808 and 835) and
Chapters 121, 301 and 313 of Title 46 of the United States Code, as amended and
pertinent regulations of the United States Coast Guard and MARAD.
(l) "United States Ship" shall mean any Ship, which without violating
the United States Maritime Laws, cannot be owned by, mortgaged to, or operated
by any person who is not a citizen of the United States within the meaning of
Section 2 of the Shipping Act, 1916 as amended, without the approval of MARAD.
ARTICLE II
DECLARATION OF TRUST
Section 2.01. The Trustee hereby declares that it will hold the Trust
Estate upon the trust hereinafter set forth, subject to, and upon the terms and
conditions of, this Trust Agreement, for the sole use and benefit of the
Administrative Agent and the Secured Creditors.
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ARTICLE III
TRANSFER OF PROPERTY TO TRUST
Section 3.01. The Administrative Agent hereby authorizes the Trustee
and the Trustee hereby agrees to accept as a part of the Trust Estate all of the
Ship Security Instruments. At any time hereafter and from time to time, the
Trustee shall execute or enter into, as the case may be, as Trustee, the Ship
Security Instruments upon written direction of the Administrative Agent. The
Trustee shall issue to the Administrative Agent a Trust Receipt for each of the
Ship Security Instruments upon the execution of such Ship Security Instrument.
Section 3.02. Upon satisfaction or discharge of the Obligations
secured in accordance with the Credit Agreement or by the security interest
provided for in any of the Ship Security Instruments, the Administrative Agent
shall so notify the Trustee. The Trustee shall advise the parties, upon request
of the Administrative Agent, whether or not there has been a satisfaction or
discharge of such Obligations, execute and deliver to the Administrative Agent,
such satisfaction or discharge of such Mortgages as the Administrative Agent may
request. Upon satisfaction or discharge of the lien provided for in any of the
Ship Security Instruments, the Administrative Agent shall return the respective
Trust Receipt to the Trustee for cancellation and thereafter the Trustee shall
return the respective Ship Security Instrument to the Administrative Agent, at
which time the Ship Security Instrument shall be deemed withdrawn from the Trust
Estate.
Section 3.03. The Administrative Agent shall deliver to the Trustee on
request, a certificate setting forth the principal amount then outstanding under
the Credit Agreement.
ARTICLE IV
DUTIES OF THE TRUSTEE
Section 4.01. The Trustee shall take such action with respect to any
event of default under the Mortgages as shall be specified in any notice of such
default or enforcement event and written instructions of the Administrative
Agent, but the Trustee shall not be required to take any action not expressly
set forth in such written instructions. If the approval of any governmental
agency or body is required in order to carry out the instructions of the
Administrative Agent, including, without limitation, the approval of MARAD under
applicable United States Maritime Laws, the Trustee shall not be required to
carry out such instructions unless such approval shall have been obtained.
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Section 4.02. The Trustee shall not have any duty or obligation to
manage, operate, control, use, sell, make investments in respect of, dispose of
or otherwise deal with the Ships, any Ship Security Instrument or any other part
of the Trust Estate or to otherwise take or refrain from taking any action
under, or in connection with the Ship Security Instruments, except as expressly
provided by the terms of this Trust Agreement or as expressly provided in
written instructions received from the Administrative Agent. Except for the
accounting for monies or things actually received by it as Trustee hereunder the
Trustee shall have no duties as to any monies, instruments or securities. The
Trustee shall not be obligated or required, and this Trust Agreement shall not
be construed so as to obligate or require the Trustee, to expend or risk its own
funds or incur any financial responsibility in the performance of any of its
duties under this Trust Agreement, to file any reports or other matters with any
governmental authority relating to the matters hereof other than those required
to be filed by the Trustee as a depository institution, or to follow any written
instructions received from any Lender or any Person other than the
Administrative Agent.
Section 4.03. (a) In the event the Trustee shall be unable to act as
trustee under any applicable governmental rule or regulation, the sole
obligation of the Trustee hereunder shall be to advise the Administrative Agent
promptly of any such fact of which it has Actual Knowledge and to resign under
this Trust Agreement, if requested by the Administrative Agent. The Trustee
shall have no liability to the Administrative Agent, the Secured Creditors, the
Borrower, or any other Person by reason of its failure to be or remain qualified
to act under applicable law as trustee, except that the Trustee agrees to pay
its own costs and expenses, including, without limitation, legal counsel fees
and expenses, in connection with any resignation under this Section 4.03.
(b) The Trustee shall use its best efforts to maintain itself as an
approved trustee by MARAD and properly comply with all regulations of MARAD in
connection therewith including, without limitation, making such reports, filings
and accountings as may be required. If the Trustee learns of the occurrence of
events which will or could, in its opinion, result or have resulted in its
disqualification, the Trustee shall promptly so advise the Administrative Agent.
Section 4.04. The Trustee shall furnish promptly to the Administrative
Agent each communication received by it or a copy thereof relating to any Ship
Security Instrument, but shall have no duty to act upon or reply to any such
communication in the absence of written instructions from the Administrative
Agent.
Section 4.05. The Trustee shall keep custody of any cover notes,
insurance policies, brokers' opinion letters, or other documents delivered to it
from time to time as may be required by any Ship Security Instrument and shall
promptly give copies thereof to the Administrative Agent. The Trustee shall have
no duty to advise the Administrative Agent of its failure to receive in timely
fashion any such insurance document and the
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responsibility of determining if any insurance document does not comply with the
requirements of the Ship Security Instruments shall be solely that of the
Administrative Agent.
ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01. The Trustee accepts the trust hereby created and agrees
to perform such trust but only upon the terms of this Trust Agreement. The
Trustee shall not be answerable or accountable to the Administrative Agent, the
Secured Creditors, or any other Person under any circumstances, except for its
own willful misconduct or gross negligence. The Trustee agrees that it shall not
operate any Ship under a Ship Security Instrument without the prior consent of
MARAD in any case where such consent is required by law and that it shall not
sell any Ship under a Ship Security Instrument to a person who is not a citizen
of the United States within the meaning of Section 2 of the Shipping Act, 1916,
as amended, without the prior written consent of MARAD in any case where such
consent is required by law. The Administrative Agent shall be responsible for
furnishing the Trustee with satisfactory evidence of MARAD approval or of
citizenship in such cases.
Section 5.02. Except in accordance with written instructions furnished
pursuant to Section 4.01 hereof, and without limiting the generality of Section
4.02 hereof, the Trustee shall have no duty (a) to record, file or deposit any
Ship Security Instrument or any amendments thereto, (b) to effect or maintain
any insurance on any Ship, (c) to pay or discharge any tax, assessment or other
governmental charge or any lien or encumbrance of any kind owing with respect
to, assessed or levied against, any part of the Trust Estate, (d) to confirm or
verify any notices or reports of the Borrower or any other Person other than to
furnish the Administrative Agent with a copy of each notice or report furnished
the Trustee by the Borrower or any other Person pursuant to the Ship Security
Instrument or (e) to inspect any Ship at any time or ascertain or inquire as to
the performance or observance of the covenants under any Ship Security
Instrument or whether any default shall have occurred thereunder.
Section 5.03. THE TRUSTEE MAKES NO REPRESENTATION OR WARRANTY AS TO:
(a) THE VALIDITY, LEGALITY, ENFORCEABILITY OR PRIORITY OF ANY SHIP SECURITY
INSTRUMENT, THE INSURANCE ASSIGNMENTS OR AS TO THE CORRECTNESS OF ANY STATEMENT
CONTAINED IN ANY THEREOF, OR AS TO ITS TITLE THERETO; (b) THE TITLE,
DOCUMENTATION, SEAWORTHINESS, VALUE, CONDITION OR FITNESS FOR USE OF ANY OF THE
SHIPS, OR ANY OTHER REPRESENTATION OR WARRANTY
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WITH RESPECT THERETO; OR (c) THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THIS
TRUST AGREEMENT OR ANY DOCUMENT HEREBY CONTEMPLATED, except that the Trustee
represents and warrants that (x) this Trust Agreement and any other instrument
executed by the Trustee have been or will be executed by an officer duly
authorized to execute them on its behalf, and (y) the Trustee is an approved
Trustee within the meaning of Chapter 313 of Title 46 of the United States Code,
as amended, qualified to hold preferred mortgages and other security interests
in vessels of the United States for the benefit of persons such as the
Administrative Agent and the Lenders.
.
Section 5.04. No monies received by the Trustee hereunder need be
segregated in any manner except to the extent required hereunder or by law and
the Trustee shall not be liable for any interest thereon.
Section 5.05. The Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it in
good faith to be genuine and believed by it in good faith to be signed by the
proper party or parties. The Trustee may accept a copy of a resolution of the
board of directors of any corporate party, certified by the secretary, an
assistant secretary or any other officer of said party, as duly adopted and in
full force and effect, as conclusive evidence that such resolution has been
adopted by said board and is in full force and effect. As to any fact or matter,
the manner of ascertainment of which is not specifically described herein, the
Trustee may for all purposes hereof rely in good faith on a certificate, signed
by or on behalf of the party executing such certificate, as to such fact or
matter, and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
In the administration of the Trust Estate, the Trustee may perform its powers
and duties hereunder directly or through other agents or attorneys and may, at
the cost and expense of the Borrower, seek advice of counsel (including counsel
for the Administrative Agent or the Borrower), accountants and other skilled
persons to be selected and employed by it, and the Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the actions, advice or opinion of any such counsel, agents, accountants or other
skilled persons.
Section 5.06. In accepting the trust hereby created, the Trustee acts
solely as trustee hereunder and not in its individual capacity, and the Trustee
shall have no liability hereunder or under any Ship Security Instrument, except
as expressly set forth herein or therein.
Section 5.07. The Trustee shall be entitled to receive reasonable
compensation from the Borrower, on behalf of the Administrative Agent, for its
services hereunder, as provided in Section 10.01 below.
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ARTICLE VI
INDEMNIFICATION OF THE TRUSTEE BY THE BORROWER
Section 6.01. The Borrower shall, whether or not any of the
transactions contemplated hereby shall be consummated, assume liability for, and
indemnify, protect, save and keep harmless the Trustee and its respective
successors, assigns, agents and servants, from and against any and all
liabilities, obligations, losses, damages, penalties, taxes (such term "taxes"
or the term "tax" as used in this Section 6.01 shall include, without
limitation, all taxes specifically related to this Trust Agreement and the Trust
Estate created hereby excluding, however, any income, franchise or similar taxes
on fees or other compensation received by the Trustee in its capacity as
Trustee), claims, actions, suits, costs, expenses or disbursements (including,
without limitation, legal fees and expenses) of any kind and nature whatsoever
which may be imposed on or incurred by or asserted against the Trustee, its
respective successors, assigns, agents or servants, by whomsoever asserted, in
any way specifically relating to or arising out of this Trust Agreement or a
Ship Security Instrument, or the performance or enforcement of any of the terms
thereof, or in any way relating to or arising out of the financing, refinancing,
mortgaging, manufacture, purchase, acceptance, rejection, ownership, delivery,
lease, possession, use, operation, condition, sale, return or other disposition
of either of the Ships (including, without limitation, latent and other defects,
whether or not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration of
the Trust Estate, or to the action or inaction of the Trustee hereunder, except
only in the case of willful misconduct or gross negligence by the Trustee. The
indemnities contained in this Section 6.01 shall survive the termination of this
Trust Agreement.
Section 6.02. The indemnity provided in Section 6.01 shall not apply
to any costs, expenses or other liabilities incurred by the Trustee in the
preservation of its status as an approved trustee by MARAD or any other status
which it holds at the date of entering into this Trust Agreement.
ARTICLE VII
TRANSFER OF THE ADMINISTRATIVE AGENT'S INTEREST
Section 7.01. None of the Administrative Agent or the Secured
Creditors shall assign, convey or otherwise transfer any of its right, title or
interest in and to this Trust Agreement, the Trust Estate or any part thereof
except (i) with respect to the Administrative Agent and the Secured Creditors in
compliance with the terms of the Credit Agreement; or
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(ii) with the prior written consent of the Trustee. In connection with any
conveyance or transfer described above, the Trustee shall execute and deliver
such instruments or do such acts as the Administrative Agent may require, at the
cost and expense of the Borrower, in order to consummate such assignment,
conveyance or transfer.
ARTICLE VIII
PROCEDURE FOR ENFORCEMENT
Section 8.01. Upon receipt of a notice and instructions provided for
in Section 4.01 hereof, the Trustee shall proceed to exercise such rights and
remedies available to it under the applicable Ship Security Instruments as the
Administrative Agent shall, from time to time, instruct it to exercise. The
Administrative Agent acknowledges that it cannot require the Trustee to operate
a Ship or to sell any Ship to a person who is not a citizen of the United States
within the meaning of Section 2 of the Shipping Act, 1916, as amended, without
the prior approval of MARAD in any case where such consent is required by law or
to do any other act which is not lawful for mortgagees of United States Ships.
Section 8.02. If so instructed by the Administrative Agent, the
Trustee shall, in connection with any Enforcement, employ attorneys, experts,
consultants, managers, security guards, surveyors, insurance brokers, inspectors
or any other persons or entities deemed desirable by the Administrative Agent.
Section 8.03. If so instructed by the Administrative Agent, the
Trustee shall file such suits or actions or bring such proceedings before any
court or agency in connection with the enforcement of any Ship Security
Instruments in its own name in its capacity as Trustee, or shall join in any
such suits, actions or proceedings as co-plaintiff with the Administrative Agent
as the Administrative Agent deems necessary or desirable. The conduct of such
suits, actions or proceedings shall be in accordance with instructions from the
Administrative Agent.
Section 8.04. If so instructed by the Administrative Agent, the
Trustee shall, in connection with any Enforcement, provided the same be lawful,
do any or all of the following:
(a) Operate any or all of the Ships under the applicable Ship
Security Instrument;
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(b) Conduct a private sale of any Ship or other collateral covered by
a Ship Security Instrument and execute and deliver an appropriate xxxx of
sale transferring title to any Ship or Ships to a purchaser thereof at such
a private sale;
(c) Bid upon or purchase any Ship or Ships at any judicial sale or
other auction, provided that the Administrative Agent shall have made funds
available in advance to the Trustee for this purpose; and
(d) Operate any or all of the Ships acquired by it as a result of an
Enforcement.
Section 8.05. Upon the acquisition of title to the Ship or Ships, as
contemplated by Section 8.04 above, the Trustee shall have no obligation to
protect, conserve or deal with any Ship, except as so specifically instructed by
the Administrative Agent in writing.
Section 8.06. The Borrower on behalf of the Administrative Agent shall
pay all costs and expenses incurred in connection with any Enforcement, and the
Trustee may, in its discretion, require that the Borrower make funds available
to the Trustee to satisfy any such cost or expense prior to the time of
incurring such cost or expense.
ARTICLE IX
PAYMENTS TO THE ADMINISTRATIVE AGENT AND DISTRIBUTIONS
Section 9.01. The Trustee shall pay, pursuant to Section 9.02 hereof,
to the Administrative Agent promptly upon receipt thereof, all sums collected
under any Ship Security Instrument. Such payments shall be made in immediately
available funds to such place as the Administrative Agent from time to time may
direct the Trustee.
Section 9.02. Save as expressly stated to the contrary in any of the
Loan Documents to which the Trustee is a party or in any written instructions to
the Trustee from the Administrative Agent, to the extent that the Trustee
receives or recovers monies pursuant to the Loan Documents to be applied in
discharge of the Obligations, such monies (after deduction of the costs,
expenses and fees of the Trustee or any receiver, attorney, agent, delegate or
other Person appointed by the Trustee) shall be paid by the Trustee to the
Administrative Agent for application by the Administrative Agent in accordance
with the provisions of the relevant Ship Security Instrument.
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Section 9.03. The Trustee shall not be required to segregate its
collections or sums received in payment from its other funds, except as
otherwise by law required or required hereunder, but shall, upon request of the
Administrative Agent furnish to the Administrative Agent, a statement and
accounting of any monies, or funds or other things of value (other than the Ship
Security Instruments) held by it as Trustee for the benefit of the
Administrative Agent. The form of such report shall be as mutually agreed by the
Trustee and the Administrative Agent.
Section 9.04. In the event the Administrative Agent is in default in
respect of any payment to the Trustee of fees or any other sums owed by the
Administrative Agent, the Trustee shall be allowed to deduct any such fees or
amounts from the Trust Estate before being required to make any payment thereof
to the Administrative Agent. In the event any such deduction is made, the
Trustee shall promptly furnish the Administrative Agent a statement giving
complete details of any such deduction and the basis upon which such deduction
is made.
ARTICLE X
COMPENSATION OF THE TRUSTEE
Section 10.01. The Trustee shall receive no compensation for its
services hereunder other than those costs, expenses and liabilities for which
the Trustee is entitled to be reimbursed or indemnified by the Borrower as set
forth in this Trust Agreement.
ARTICLE XI
REMOVAL, DISQUALIFICATION OR RESIGNATION OF
THE TRUSTEE; SUCCESSOR TRUSTEES
Section 11.01. (a) In its discretion, the Administrative Agent may
remove the Trustee at any time, without cause, by directing a written notice to
the Trustee of such removal. No removal shall be effective unless a qualified
successor trustee, described in Section 11.02(e) below, shall have been
appointed on or prior to the effective date of such removal in accordance with
the provisions of this Trust Agreement.
(b) The Trustee may resign at any time without cause by giving at
least thirty (30) days' prior written notice to the Administrative Agent, such
resignation to be effective,
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subject to the provisions of the last sentence of this paragraph, on the date
specified in such notice. If the Administrative Agent shall not have appointed a
successor trustee within thirty (30) days after such notice of resignation, the
Trustee may apply to any court of competent jurisdiction to appoint a qualified
successor trustee to act until such time, if any, as a successor trustee shall
have been appointed by the Administrative Agent. Any successor trustee so
appointed by such court shall immediately and without further act be superseded
by any successor trustee appointed by the Administrative Agent. In any event,
however, no resignation shall be effective until a qualified trustee shall have
been appointed by the Administrative Agent or a court.
(c) In the event that the Trustee becomes disqualified as an approved
trustee by MARAD, the Administrative Agent shall: (i) remove the Trustee and
appoint a qualified successor trustee or (ii) take the action provided for in
Section 11.03.
Section 11.02. (a) A successor trustee shall be appointed by an
instrument in writing which shall state the effective date said successor
trustee shall become the Trustee hereunder, which document shall contain the
executed acknowledgement of acceptance by the successor trustee of the trust,
the Trust Estate and the duties of the Trustee as herein provided. The Trustee,
the successor trustee and the Administrative Agent shall execute, acknowledge
and deliver such assignments as may be required, in recordable form, and a
sufficient number of counterparts, whereby the successor trustee becomes vested
with all of the estates, properties, rights, remedies and trusts of its
predecessor to the trust hereunder and such instruments shall be duly recorded
forthwith in accordance with Chapter 313 of Title 46 of the United States Code,
as amended, or other laws or statutes governing any Ship Security Instrument, as
the case may be. The Trustee shall duly assign, transfer, deliver and pay over
to any successor trustee any monies and other property or things of value
subject to the trust hereunder and held by the Trustee. Should any act or
further instrument from the Trustee or the Administrative Agent be required by
any successor trustee for more fully and certainly vesting in and confirming to
such successor trustee such estates, properties, rights, remedies and trusts,
then on request any and all such acts and instruments shall be done, made,
executed, acknowledged and delivered by the Administrative Agent and the
Trustee. If the Administrative Agent's removal of the Trustee is by reason of
the Trustee's failure to remain qualified as an approved trustee by MARAD, the
provisions of Section 4.03 shall govern.
(b) The Borrower on behalf of the Administrative Agent shall pay or
cause to be paid all recording fees, transfer taxes, court costs, if applicable,
and all other costs arising out of the transfer of the Trust Estate from the
Trustee to a successor trustee. If the Administrative Agent's removal of the
Trustee is by reason of the Trustee's failure to remain qualified as an approved
trustee by MARAD, the provisions of Section 4.03 shall govern.
(c) Upon the removal or resignation of the Trustee, the Trustee's
compensation shall cease as of the effective date thereof, but its rights of
indemnification shall survive such
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removal or resignation. Within thirty (30) days following the effective date of
such removal or resignation, the Trustee shall furnish to the Administrative
Agent a complete accounting of the Trust Estate and its compensation, costs and
expenses as of the date of removal or resignation.
(d) Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation to which substantially all the business of the Trustee may be
transferred, shall be the Trustee under this Trust Agreement without any further
act, provided the successor corporation remains qualified as an approved
trustee.
(e) Any successor to the Trustee, however appointed, shall be a bank
or trust company organized under the laws of the United States or any
jurisdiction thereof, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by federal or state authority,
having a combined capital and surplus of at least Fifty Million Dollars
($50,000,000), and be qualified to act as mortgagee under the Mortgages to the
extent required by applicable law and shall be a trustee approved by MARAD in
accordance with the provisions of the Shipping Act, 1916, as amended, and
Chapter 313 of Title 46 of the United States Code, as amended, if there be such
an institution willing, able and legally qualified to perform the duties of the
Trustee hereunder upon reasonable or customary terms.
Section 11.03. If at any time: (a) events occur which will or could,
in the opinion of the Administrative Agent or the Trustee, result in the
disqualification of the Trustee; or (b) the Trustee becomes disqualified, the
Trustee or the Administrative Agent, or both of them, may petition the United
States District Court for the Southern District of New York for instructions to
the Trustee in order that the trust may be preserved to prevent the
Administrative Agent or the Trustee from falling into violation of law,
including without limitation, the United States Maritime Laws. To the extent
that such may be required or necessary, the parties hereto agree that said court
has jurisdiction for this purpose; however, if in the interest of justice, the
said court determines to transfer the matter to any other United States Court,
the parties hereby agree to the jurisdiction of such transferee court. Any such
petition shall be served upon the other party hereto. The Trustee, the
Administrative Agent and any successor trustee hereby agree to abide by the
instructions of the court and to do all acts, execute such agreements and
instruments as may be required in connection therewith and all other instruments
and/or documents necessary to preserve the Trust Estate for the benefit of the
Administrative Agent on behalf of the Secured Creditors under the terms
hereunder.
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ARTICLE XII
TERMINATION AND DISCHARGE OF TRUST
Section 12.01. This trust is hereby declared to be irrevocable except
that this trust may be terminated by notice given by the Administrative Agent to
the Trustee at any time that there is no Ship Security Instrument held or to be
held as a part of the Trust Estate and termination of the trust would not create
an interest in a United States Ship on the part of the Administrative Agent and
the Secured Creditors that would be contrary to applicable law, or otherwise
cause the Administrative Agent or the Secured Creditors to be in violation of
any applicable law and no Obligations to the Administrative Agent and the
Secured Creditors under the Loan Documents remain and no obligation of the
Administrative Agent or the Secured Creditors to make any Loan or issue any
Letter of Credit is still outstanding. Within thirty (30) days following the
date of such notice, the Trustee shall furnish to the Administrative Agent a
complete accounting of the Trust Estate and its compensation, costs and
expenses. This trust shall terminate, cease and determine upon: (i) the
assignment, conveyance and transfer by the Trustee to the Administrative Agent
of all property then comprising the Trust Estate and (ii) the acceptance of such
accounting of the Trustee by the Administrative Agent.
ARTICLE XIII
AMENDMENT OF TRUST AGREEMENT
Section 13.01. 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 Administrative Agent and the Trustee; and any waiver of
the terms hereof shall be effective only in the specific instance and for the
specific purpose given; provided, however, because of the irrevocable nature of
this trust and the reasons for which it is created the trust may not be amended
in any way that may vest or revest in the Administrative Agent or the Secured
Creditors any interest in a United States Ship contrary to applicable law, and
without limitation, particularly the United States Maritime Laws.
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ARTICLE XIV
MISCELLANEOUS
Section 14.01. The headings of the various articles are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
Section 14.02. Any assignment, sale, transfer or other conveyance by
the Trustee of the interest of the Trustee in any Ship Security Instrument, or
any of the Ships, or insurance proceeds made pursuant to this Trust Agreement or
any Ship Security Instrument shall bind the Administrative Agent and the Secured
Creditors and shall be effective to transfer or convey all right, title and
interest of the Trustee and the Administrative Agent and the Secured Creditors
therein. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such assignment, sale,
transfer or conveyance or as to the application of any sale or other proceeds
with respect thereto by the Trustee.
Section 14.03. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing, delivered or mailed by first
class mail, postage prepaid, (i) if to the Trustee, addressed to the Trustee at
its offices at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000,
and (ii) if to the Administrative Agent, addressed to it as provided in Section
10.08 of the Credit Agreement, or such other address as the Trustee or the
Administrative Agent may designate by notice to the other parties. All notices
given pursuant to this Section 14.03 shall be effective upon receipt. All
notices required to be delivered by the Trustee under this Trust Agreement shall
be delivered promptly by the Trustee. Copies of all notices shall be delivered
to the Borrower addressed to its President and Chief Operating Officer as
provided in Section 10.08 of the Credit Agreement with copies addressed to its
Chief Financial Officer and its General Counsel as provided in Section 10.08 of
the Credit Agreement.
Section 14.04. 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 or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 14.05. This Trust Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
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Section 14.06. All covenants and agreements contained herein shall be
binding upon, and inure to the benefit of, the Trustee, and its successors and
assigns, the Administrative Agent, and its successors and assigns, and the
Lenders, and their respective successors and assigns. Any request, notice,
direction, consent, waiver or other instrument or action by the Administrative
Agent shall bind its successors and assigns, and the Lenders, and their
respective successors and assigns.
Section 14.07. Nothing expressed or implied herein is intended or
shall be construed to confer upon or give to any Person, other than the parties
hereto, their successors or assigns, any right, remedy or claim under or by
reason of this Trust Agreement or of any term, covenant or condition hereof, and
all of the terms, covenants, conditions, promises and agreements contained
herein shall be for the sole and exclusive benefit of the parties hereto and
their successors and assigns.
Section 14.08. THIS TRUST AGREEMENT, AND ALL OF THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER, AND THEIR SUCCESSORS AND ASSIGNS, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
Section 14.09. No provision of this Trust Agreement or any action
taken pursuant hereto shall be considered to be a waiver of the preferred status
of any United States preferred mortgage transferred to the Trustee hereunder or
in derogation of any of the benefits, privileges, rights or remedies provided
for by Chapter 313 of Title 46 of the United States Code, as amended, or other
applicable law or any Ship Security Instrument.
Section 14.10. This Trust Agreement has been delivered in Las Vegas,
Nevada.
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IN WITNESS WHEREOF, the parties hereto, have caused this Trust
Agreement to be duly executed and delivered in Las Vegas, Nevada by their
respective officers thereunto duly authorized on the day and year first above
written.
FIRST INTERSTATE BANK OF NEVADA, N.A.,
as Administrative Agent
By ___________________________
Name:
Title:
FIRST INTERSTATE BANK OF NEVADA, N.A., as Trustee,
By __________________________
Name:
Title:
ACKNOWLEDGED AND ACCEPTED:
PLAYERS INTERNATIONAL, INC.
By: _____________________
Name:
Title:
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SCHEDULE A
NAME OF OFFICIAL NAME OF
SHIP FLAG NUMBER SHIPOWNER
STAR CASINO U.S. 997578 Showboat Star Partnership
PLAYERS RIVERBOAT U.S. 989886 Southern Illinois Riverboat/
CASINO Casino Cruises, Inc.
XXXXXXX XXXXXXXXX X.X. 000000 Players Lake Xxxxxxx, Inc.
CASINO II
EXHIBIT A
TRUST RECEIPT
Date:_______________________ Number:_________________
To: First Interstate Bank of Nevada, N.A., Administrative Agent
From: First Interstate Bank of Nevada, N.A.,
not in its individual
capacity, but solely as
Trustee
The Trustee hereby acknowledges the delivery to the Trustee, as
trustee under the Master Vessel and Collateral Trust Agreement dated as of
August __, 1995 with you (the "Trust Agreement"), of the below listed Ship
Security Instruments covering the U.S. flag vessel ______ entered into by
__________________________ in favor of the Trustee for your benefit (the
"Mortgage").
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------------------------------
------------------------------
Terms used herein are used as defined in the Trust Agreement.
------------------------------,
not in its individual
capacity, but solely as
Trustee,
By __________________________
Name:
Title:
