EXHIBIT 10.03
[Baton Rouge]
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MORTGAGE, LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS,
FIXTURE FILING, SECURITY AGREEMENT AND
FINANCING STATEMENT
Dated as of November __, 1998
LOUISIANA CASINO CRUISES, INC.
("Grantor")
to
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
("Mortgagee")
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Prepared in the Offices of:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxxx Xxxxxxx, Esq.
TABLE OF CONTENTS
PARAGRAPH PAGE
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Granting Clauses.............................................................3
Habendum.....................................................................8
Representations, Warranties, Covenants, Agreements and Conditions............8
1. Payment of Secured Obligations......................................8
2. Warranty of Title...................................................8
3. Subordinate Mortgages and Liens.....................................8
4. Representations and Warranties......................................9
5. Covenants of Grantor as to Performance and Other Matters...........10
6. Performance by Mortgagee...........................................14
7. Conflicts with Security Agreement..................................14
8. Insurance..........................................................14
9. Payment of Taxes, etc..............................................17
10. Escrow Fund........................................................18
11. Space Leases, Rents and Cash Collateral............................19
12. Maintenance of the Property; Alterations...........................21
13. Damage to and Destruction of the Mortgaged Property................21
14. Condemnation.......................................................22
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PARAGRAPH PAGE
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15. Compliance with Agreements, Laws, etc..............................22
16. Contest of Taxes, Assessments and Liens............................23
17. Cure of Defaults by Mortgagee......................................24
18. Indemnity..........................................................25
19. Events of Default..................................................26
20. Additional Remedies................................................27
21. Authorization to Execute Deeds, Appointment of Keeper, etc.........28
22. Proceeds of Foreclosure Sale.......................................29
23. Purchase of the Property by Mortgagee..............................30
24. Waiver of Right to Bring Counterclaim in Foreclosure Action........30
25. Uniform Commercial Code............................................31
26. Certificate as to No Default, etc.; Information....................32
27. Terms Subject to Applicable Law; Severability......................32
28. Modifications by Mortgagee.........................................33
29. Change in Laws Regarding Taxation..................................33
30. Documentary Stamps.................................................33
31. Cumulative Remedies of Mortgagee; No Waiver........................34
32. Filing of Shore Mortgage, etc......................................34
33. Marshalling........................................................35
34. Waiver of Notice...................................................35
35. Recovery of Sums Required to Be Paid...............................35
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PARAGRAPH PAGE
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36. Further Assurances.................................................35
37. Notices............................................................36
38. Liability..........................................................36
39. Headings, etc......................................................36
40. Successors and Assigns.............................................36
41. Discharge of Lien..................................................36
42. Survival of Assignment.............................................37
43. Miscellaneous......................................................37
44. Governing Law; Interpretation......................................37
45. True Copy..........................................................38
46. Expenses of Enforcement............................................38
47. Waiver.............................................................38
48. Construction Mortgage..............................................39
49. The Mortgagee's Duties.............................................39
50. Shore Mortgage Absolute............................................39
51. Authentic Evidence.................................................40
52. Confession of Judgment.............................................40
Schedule A - Leasehold Interest
Schedule B - Permitted Encumbrances
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MORTGAGE, LEASEHOLD * UNITED STATES OF
MORTGAGE, ASSIGNMENT OF LEASES AMERICA
AND RENTS, FIXTURE FILING, *
SECURITY AGREEMENT AND
FINANCING STATEMENT *
STATE OF NEW YORK
BY *
LOUISIANA CASINO CRUISES, * COUNTY OF NEW YORK
INC.
TO *
U.S. BANK TRUST NATIONAL *
ASSOCIATION,
*
AS TRUSTEE
* * * * * * * * * * * * * * * * * * * *
BE IT KNOWN, that as of this __th day of November, 1998, before me the
undersigned Notary Public duly commissioned and qualified, personally came and
appeared:
LOUISIANA CASINO CRUISES, INC., a Louisiana corporation (Federal
Taxpayer Identification No. 00-0000000), appearing through its
undersigned officer duly authorized hereunto by virtue of a resolution
of the Board of Directors thereof, a certified copy of which is
attached hereto as Schedule C, which has a mailing address of 0000
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000
("GRANTOR"), who declared that Grantor does by these presents declare and
acknowledge an indebtedness unto:
U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association
(Federal Taxpayer Identification No. 00-0000000), as trustee for the
Holders under an Indenture, dated as of November __, 1998 (such
Indenture, as amended or otherwise modified from time to time, the
"INDENTURE"), between Grantor and Trustee, appearing herein through its
undersigned officer duly authorized hereunto, which has a mailing
address of 000 Xxxx 0xx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Administration.
("MORTGAGEE"), here present who accepts this Mortgage, Leasehold Mortgage,
Assignment of Leases and Rents, Fixture Filing, Security Agreement and Financing
Statement (this "SHORE MORTGAGE"; capitalized terms not otherwise defined
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in this Shore Mortgage shall have the meanings set forth for such terms in the
Indenture).
W I T N E S S E T H :
WHEREAS, Grantor is the owner of a leasehold interest (the
"LEASEHOLD INTEREST") created under that certain Ground Lease Agreement, dated
June 16, 1993, between Capitol Lake Properties, Inc., as landlord, and Grantor,
as tenant, as amended by that certain Supplemental Agreement to Ground Lease,
dated October 13, 1993, between Capitol Lake Properties, Inc. and Grantor and
that certain Amendment to Ground Lease Agreement, dated September 30, 1993,
between Capitol Lake Properties, Inc. and Grantor (as so amended, the "LEASE"),
for certain premises located in East Baton Rouge Parish, Louisiana, and more
particularly described on SCHEDULE A attached hereto (such leasehold and fee
simple interest being hereinafter defined as the "REAL PROPERTY"); and
WHEREAS, Grantor has entered into the Indenture, pursuant to
which Grantor has issued or will issue up to $50,000,000 of its Senior Secured
Increasing Rate Notes due 2001 (the "NOTES"); and
WHEREAS, Grantor has entered into a Purchase Agreement, dated
as of November __, 1998 (the "PURCHASE AGREEMENT") with the Initial Purchaser
(as defined therein) pursuant to which the Purchasers have agreed to purchase
the Notes specified in such Purchase Agreement; and
WHEREAS, the proceeds of the purchase of the Notes will be
available to Grantor to enable Grantor to repay the existing $43.8 million of 11
1/2% First Mortgage Notes due December 1, 1998 and for working capital purposes,
and therefore, Grantor will derive substantial direct benefit from the
transactions contemplated herein, in the Indenture and the Security Documents
(as defined in the Indenture; such documents being collectively hereinafter
referred to as the "TRANSACTION DOCUMENTS") and the Purchase Agreement; and
WHEREAS, it is a condition precedent to the purchase of the
Notes by the Initial Purchaser and the Purchase Agreement that Grantor shall
have executed and delivered this Shore Mortgage.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of ten dollars and other good
and valuable consideration, the receipt of and
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sufficiency of which are hereby acknowledged, and to secure (i) the payment when
due of indebtedness evidenced by the Notes in the principal sum of FIFTY MILLION
DOLLARS $50,000,000, payable to the order of the Holders, bearing interest as
set forth in the Indenture and maturing on a date three years from the Issue
Date, such date being the Maturity Date, as defined in the Indenture, and any
notes exchanged for the Notes or issued in replacement of the Notes (in each
case pursuant to the terms of the Indenture), including, without limitation, all
accrued and unpaid interest thereon, and premiums and penalties, if any,
thereon, including late payment charges and Additional Interest (as defined in
Paragraph 17 hereof), (ii) the payment by Grantor if and when due of (a) the
Purchase Price (as defined in Section 1010 of the Indenture), in an amount not
to exceed such amount calculated in accordance with Section 1010 of the
Indenture, (b) amounts due in connection with an Asset Sale Offer (as defined in
Section 1017 of the Indenture) in an amount not to exceed such amount calculated
in accordance with Section 1017 of the Indenture and (c) amounts due in
connection with an Event of Loss Offer (as defined in Section 1018 of the
Indenture) in an amount not to exceed such amount calculated in accordance with
Section 1018 of the Indenture, in each case together with interest thereon as
set forth in the Indenture, and premiums and penalties, if any, thereon,
including Additional Interest, (iii) all other sums that may or shall become due
hereunder, in connection with the Notes or under the other Transaction
Documents, including the costs and expenses of enforcing any provision of any of
the foregoing documents or any extensions or modifications of the Notes or any
substitutions therefor, (iv) the reimbursement to Mortgagee of all monies which
may be advanced as herein provided and of any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred or paid on account
of any litigation at law or in equity that may arise in respect of this Shore
Mortgage or the obligations secured hereby or the lands and premises and other
property herein mentioned or in obtaining possession of said lands and premises
and other property after any sale that may be made as hereinafter provided, (v)
the payment by Grantor to Mortgagee of all sums, if any, as may be duly expended
or advanced by Mortgagee in the performance of any obligation of Grantor as
provided hereunder, (vi) the payment of any and all other indebtedness that this
Shore Mortgage by its terms secures and (vii) the performance and observance of
the covenants, agreements and obligations of Grantor contained herein and in the
other Transaction Documents (all obligations and sums included in the foregoing
clauses (i), (ii), (iii), (iv), (v), (vi) and (vii) being hereinafter
collectively referred to as the "SECURED OBLIGATION"), and in order to charge
with such
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performance and with such payments said lands and premises and other property
hereinafter described and the rents, revenues, issues, income and profits
thereof, Grantor does hereby mortgage, affect, hypothecate, to inure to the use
and benefit of Mortgagee (as trustee under the Indenture), and its successors
and assigns, all right, title and interest of Grantor now owned or leased, or
hereafter acquired, in, to or under, or derived from each and all of the
following properties, estates, rights, titles and interests (collectively, the
"MORTGAGED PROPERTY"):
(a) the Real Property and all tenements, hereditaments,
appurtenances, estates and rights in and to any of the Real Property
and all component parts of the Real Property;
(b) all buildings, improvements and other structures now or
hereafter located on any of the Real Property (the "IMPROVEMENTS");
(c) all of Grantor's right, title and interest in and to all
servitudes, easements, rights-of-way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and
powers, and all estates, rights, title, interests, privileges,
liberties, prescriptions, advantages and appurtenances of any nature
whatsoever, in any way belonging, relating or pertaining to any of the
Real Property or the Improvements;
(d) all of Grantor's right, title and interest in and to any
right to purchase, or to use and occupy, any land adjacent to any of
the Real Property and any land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining any of the Real
Property;
(e) all of Grantor's right, title and interest to all
machinery, apparatus, equipment, fittings, fixtures and other property
of every kind and nature whatsoever now or hereafter located upon any
of the Real Property or the Improvements, and all component parts of
any building or other construction located on any of the Real Property
or appurtenances thereto, and used in connection with the operation and
occupancy of any of the Real Property or the Improvements, and all
building equipment, materials and supplies of any nature whatsoever now
or hereafter located in or upon any of the Real Property or the
Improvements, including, without limitation, ships, boats, barges and
vessels together with all of the boilers, engines,
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machinery, masts, spars, sails, anchors, cables, chains, rigging,
tackle, fittings and all other appurtenances thereunto appertaining or
belonging, and all structural steel and other metals, lumber and lumber
products, bricks, stones, building blocks, sand, cement, roofing
materials, paint, doors, windows, hardware, wires, wiring and other
building materials and any building equipment, materials and supplies
obtained for use in connection with any of the Real Property or the
Improvements and all additions, replacements, modifications and
alterations of any of the foregoing, including, but without limiting
the generality of the foregoing, all heating, lighting, incinerating
and power equipment, engines, pipes, tanks, motors, conduits,
switchboards, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, refrigerating, ventilating and communications apparatus,
air cooling and air conditioning apparatus, elevators, ducts and
compressors and all other equipment and fixtures (collectively, the
"EQUIPMENT"). Grantor acknowledges that all Equipment is part and
parcel of the real estate and appropriated to the use of the real
estate and, whether or not affixed or annexed to the Improvements,
shall for the purpose of this Shore Mortgage be deemed conclusively to
be real estate and mortgaged hereby;
(f) all of Grantor's right, title and interest to all plans
and specifications for the Real Property and the Improvements, all
contracts with architects and engineers responsible for the design of
the Improvements, the preparation or evaluation of any of such plans
and specifications or the supervision of the construction of any of the
Improvements, all contracts to which Grantor is now or hereafter a
party providing for the construction of any of the Improvements, or the
furnishing of labor or materials in connection therewith or the
furnishing or installation of any Equipment or other personal property
in connection therewith, all contracts to which Grantor is now or
hereafter a party providing for the management of the construction of
any of the Improvements, all rights of Grantor as a third party
beneficiary under all contracts and subcontracts pertaining to the Real
Property or the Improvements as to which Grantor is not a party, all
payment and performance bonds relating to the Real Property or the
Improvements and all other contracts and agreements related to the
design, management, construction, equipping and development of the Real
Property or the Improvements (collectively, the "CONSTRUCTION
DOCUMENTS");
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(g) all of Grantor's right, title and interest to all awards
or payments, and any interest paid or payable with respect thereto,
that may be made with respect to all or any portion of the Real
Property, the Improvements or the Equipment, whether from the exercise
of right of condemnation, eminent domain or similar proceedings
(including any transfer made in lieu of the exercise of said right), or
from any taking for public use, or for any other injury to or decrease
in the value of all or any portion of the Real Property, the
Improvements or the Equipment, or as a result of the exercise by any
governmental authority of any right or option to purchase any of the
Real Property, all of the foregoing to be held, applied and paid in
accordance with the provisions of this Shore Mortgage (collectively,
the "EMINENT DOMAIN AWARDS");
(h) all of Grantor's right, title and interest to all
proceeds of, and any unearned premiums on, any insurance policies
covering all or any portion of the Real Property, the Improvements or
the Equipment or the Rents (as hereinafter defined), including, without
limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage
to all or any portion of the Real Property, the Improvements or the
Equipment and any interest actually paid with respect thereto, all of
the foregoing to be held, applied and paid in accordance with the
provisions of this Shore Mortgage (collectively, the "INSURANCE
PROCEEDS");
(i) all of Grantor's right, title and interest as lessor or
landlord to all leases and other agreements affecting the use or
occupancy of any of the Real Property or the Improvements now in effect
or hereafter entered into (including, without limitation, subleases
(including subleases of the Lease, licenses, concessions, tenancies and
other occupancy agreements covering or encumbering all or any portion
of the Real Property or the Improvements), but excluding any licenses
and permits to the extent not assignable under applicable law,
including without limitation, liquor and gaming licenses, together with
any modifications, extensions or renewals of the same (collectively,
excluding the Lease, the "SPACE LEASES") and the rents, revenues,
issues, income, products and profits of the Real Property and the
Improvements, including, without limitation, any security deposits or
other funds deposited with Grantor pursuant to the Space Leases
(collectively, the "RENTS"), together with any
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guarantees of the Space Leases or Rents delivered to the Grantor from
time to time, and any modifications, extensions and renewals of any
such guarantees, together with the right, but not the obligation, to
exercise options, to give consents and to collect, receive and receipt
for the Rents and apply the Rents to the payment of the Secured
Obligations and to demand, xxx for and recover the Rents (when due and
payable), subject to a license in favor of Grantor in respect thereof
prior to the occurrence of an Event of Default (as defined in Paragraph
19 hereof); and
(j) any and all other, further or additional rights, title,
estates and interests of Grantor in and to any of the Real Property or
the Improvements or the Equipment, and all renewals, substitutions and
replacements of and all additions and appurtenances to any of the Real
Property or the Improvements or the Equipment or constructed, assembled
or placed on any of the Real Property or the Improvements, and all
conversions of the security constituted thereby that, immediately upon
such acquisition, construction, assemblage, placement or conversion, as
the case may be, and in each such case without any further mortgage,
conveyance, assignment or other act by Grantor, shall become subject to
the lien of this Shore Mortgage as fully and completely, and with the
same effect, as though now owned by Grantor, Grantor expressly agreeing
that if Grantor shall at any time acquire any other right, title,
estate or interest in and to any of the Real Property, the Improvements
or the Equipment, the lien of this Shore Mortgage shall automatically
attach to and encumber such other right, title, estate or interest as a
first lien thereon.
AND, as additional security, Grantor hereby grants to
Mortgagee a continuing security interest in (a) the Equipment, (b) the
Construction Documents, (c) the Insurance Proceeds, (d) the Eminent Domain
Awards, (e) the Space Leases, (f) the Rents, (g) all proceeds of the foregoing
and (h) all proceeds of any of the Real Property and the Improvements
(collectively, the "SECURITY INTEREST PROPERTY") and this Shore Mortgage shall
be effective as a security agreement pursuant to the Uniform Commercial Code as
enacted and in effect in the state in which any of the Real Property is located
(the "CODE").
HABENDUM
TO HAVE AND TO HOLD the Mortgaged Property, the rights and
privileges hereby conveyed or assigned, or intended
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so to be, unto Mortgagee (as trustee under the Indenture), its successors and
assigns, forever for the uses and purposes and subject to the terms and
conditions herein set forth.
REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS AND CONDITIONS
THIS SHORE MORTGAGE FURTHER WITNESSETH the following
representations, warranties, covenants, agreements and conditions:
1. PAYMENT OF SECURED OBLIGATIONS. The Grantor will duly and
punctually pay the principal (and premium, if any) and interest on the Notes in
accordance with the terms of the Notes and the Indenture.
2. WARRANTY OF TITLE. Grantor warrants that it has good and
marketable title to all of the Real Property and the Improvements, subject only
to the encumbrances set forth on Schedule B hereto ("PERMITTED ENCUMBRANCES");
Grantor has and will continue to have full power and lawful authority to
encumber and convey the Mortgaged Property as provided herein. Grantor owns all
other Mortgaged Property free and clear of all liens, charges and encumbrances
of every kind and character, subject only to the Permitted Encumbrances and
Permitted Liens (as defined in the Indenture). Grantor further covenants that it
will preserve such title and will forever warrant and defend the title to the
Mortgaged Property unto Mortgagee against all claims whatsoever, subject to
Permitted Encumbrances and Permitted Liens (as defined in the Indenture) and
will forever warrant and defend the validity, enforceability and priority of the
lien of this Shore Mortgage against the claims of all persons and parties
whomsoever.
3. SUBORDINATE MORTGAGES AND LIENS. This Shore Mortgage is and
shall be maintained by Grantor as a valid first mortgage lien on and first
security interest in the Mortgaged Property, subject only to the Permitted
Encumbrances and Permitted Liens (as defined in the Indenture) and such other
matters as may be expressly permitted under the Transaction Documents. Except as
otherwise provided in the Transaction Documents, Grantor shall not, directly or
indirectly, create or suffer, or permit to be created or suffered, against the
Mortgaged Property or any part thereof, including, without limitation, the
Equipment or the Rents, and Grantor will promptly discharge, any mortgage, lien
(including the liens of mechanics and materialmen), pledge, title retention
agreement, attachment, security interest, encumbrance or charge that may affect
the Mortgaged Property, or any part thereof, or interest
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therein, EXCEPT (i) the Permitted Encumbrances and Permitted Liens (as defined
in the Indenture) and (ii) matters being contested in good faith and by
appropriate proceedings in the manner permitted by Paragraph 16 of this Shore
Mortgage. If any mortgage or other lien not permitted hereunder is filed,
Grantor will cause the same to be discharged promptly by payment or bonding or
otherwise to the satisfaction of Mortgagee and will exhibit to Mortgagee
evidence of payment, discharge, bonding or other disposition satisfactory to
Mortgagee.
4. REPRESENTATIONS AND WARRANTIES. In order to induce (i)
Initial Purchaser to purchase the Notes, and (ii) Mortgagee to accept this Shore
Mortgage, Grantor represents and warrants to Mortgagee that:
(a) The representations and warranties contained in the
Transaction Documents are true and correct as of the date hereof.
(b) This Shore Mortgage constitutes a valid mortgage and, upon
proper recording hereof, will constitute a valid and perfected mortgage
lien on, and security interest in, the Mortgaged Property (subject only
to the Permitted Encumbrances and Permitted Liens (as defined in the
Indenture)), and there are no defenses or offsets to Grantor's
obligations pursuant to this Shore Mortgage or the other Transaction
Documents, including, without limitation, Grantor's applicable
obligations to pay and perform the Secured Obligations.
(c) Grantor's possession of the Mortgaged Property has been
peaceable and undisturbed and, to the best of Grantor's knowledge, the
title thereto has never been disputed or questioned, and Grantor does
not know of any facts by reason of which any adverse claim to any part
of the Mortgaged Property or to any undivided interest therein might be
set up or made.
(d) There are no federal, state or local tax claims or liens
assessed or filed against Grantor or the Mortgaged Property for taxes
which are due and payable, unsatisfied of record or docketed in any
court of the state in which the Real Property is located or in any
other court located in the United States, and no petition in bankruptcy
has ever been filed by Grantor, or, to the best of Grantor's knowledge,
against Grantor, and Grantor has never made any assignment for the
benefit of creditors
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or taken advantage of any insolvency act or any act for the benefit of
debtors.
(e) The Mortgaged Property has not been damaged or destroyed
by fire or other casualty, and no condemnation or eminent domain
proceedings have been commenced and are pending with respect to the
Mortgaged Property, and, to the best of Grantor's knowledge, no such
condemnation or eminent domain proceedings are about to be commenced.
(f) The Lease is now a valid and subsisting lease and is in
full force and effect in accordance with the terms thereof and has not
been modified, and all of the rental, additional rental and other
charges payable under the Lease prior to the execution hereof have been
paid, and all of the material terms, conditions and agreements
contained in the Lease have been performed by Grantor, and no material
default exists under the Lease. This Shore Mortgage is lawfully
executed and delivered in conformity with the Lease and is and will be
kept a valid first priority lien on the interest of the Grantor
therein.
5. COVENANTS OF GRANTOR AS TO PERFORMANCE AND OTHER MATTERS.
(a) Grantor shall perform, observe and comply in all material respects with all
agreements, covenants and obligations imposed by the provisions of this Shore
Mortgage and each other Transaction Document or imposed upon or assumed by
Grantor by virtue of the provisions of any deed, conveyance, lease, agreement,
statute or ordinance pursuant to which Grantor or any predecessor in title of
the Mortgaged Property acquired the Mortgaged Property or any rights or
privileges appurtenant thereto or for the benefit thereof.
(b) Except as otherwise expressly permitted under the
Transaction Documents or as otherwise expressly permitted hereunder, Grantor,
without the prior written consent of Mortgagee, shall not effect, and shall not
permit, any sale, lease, transfer or other disposition of any of its assets,
including, without limitation, any of the Mortgaged Property.
(c) Subject to Section 1004 of the Indenture, Grantor will do
or cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence, rights (charter and statutory) and franchises of
Grantor.
(d) Grantor shall not, without Mortgagee's prior consent,
which consent will not be unreasonably withheld, enter into any agreement with
or conveyance to any other person or
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entity permitting the use of any excess development rights that might otherwise
be used by Grantor in expanding, altering, reconstructing, replacing or
otherwise improving the Improvements or making any other improvements on the
Mortgaged Property, or otherwise permit or suffer any change of the zoning of
the Mortgaged Property or the use that may be made thereof.
(e) Grantor shall indemnify Mortgagee and each Holder from and
against any claims for brokerage fees or commissions payable to any broker or
finder with whom Grantor has dealt (or Grantor is alleged to have dealt) in
connection with this Shore Mortgage and shall pay all expenses incurred by
Mortgagee or any Holder in connection with the defense of any action brought to
collect any such brokerage fee or commission by any such person or entity.
(f) Intentionally Omitted
(g) Without limiting the foregoing, with respect to the Lease,
Grantor hereby covenants and agrees that:
(i) Grantor will promptly pay when due and payable the
rentals, additional rentals and other charges mentioned in and payable
under the Lease within the grace and cure periods provided in the
Lease.
(ii) Grantor will promptly perform and observe all of the
terms, covenants and conditions required to be performed and observed
by Grantor, as lessee under the Lease, within the grace and cure
periods provided in the Lease, and will do all things reasonably
necessary to preserve and to keep unimpaired its rights under the
Lease. Grantor will enforce or cause to be enforced the obligations of
the lessor under the Lease, to the end that Grantor may enjoy all of
the material rights granted to it as lessee under the Lease.
(iii) Grantor will promptly notify Mortgagee of any material
default by Grantor in the performance or observance of any of the
terms, covenants or conditions on the part of Grantor to be performed
or observed under the Lease.
(iv) Grantor will (1) promptly notify Mortgagee of the
receipt by Grantor of any notice from the lessor under the Lease of a
default by Grantor in the performance or observance of any of the
terms, covenants or conditions on the part of Grantor to be performed
or observed under the
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Lease, (2) promptly notify Mortgagee of the receipt by Grantor of any
notice from the lessor under the Lease to Grantor of termination of the
Lease pursuant to the provisions thereof and (3) promptly cause a copy
of each such notice received by Grantor from the lessor under the Lease
to be delivered to Mortgagee.
(v) Grantor will not, without the prior consent of Mortgagee
(1) terminate, cancel, modify, supplement or surrender or suffer or
permit any termination, modification or surrender of the Lease, (2)
fail or refuse to take timely and appropriate action to renew the Lease
pursuant to the applicable provisions thereof, (3) consent or refuse to
consent to any action taken or to be taken by the lessor or anyone else
under the Lease, the result of which would materially diminish or
impair the security of this Shore Mortgage (as determined by
Mortgagee), (4) further encumber the Leasehold Interest,
notwithstanding any such right given to Grantor under the Lease, or (5)
subordinate or consent to the subordination of the Lease to any
mortgage on the lessor's interest in the premises demised by the Lease.
(vi) Supplementing the provisions of subparagraph (v) above,
if the Lease is rejected or disaffirmed by the lessor thereunder (or by
any receiver, trustee, custodian or other party who succeeds to the
rights of such lessor, such receiver, trustee, custodian or other party
being collectively, the "acting lessor") pursuant to any bankruptcy,
insolvency, reorganization, moratorium or similar law (any such law
hereinafter collectively referred to as a "BANKRUPTCY LAW"), Grantor
covenants that it will not elect to treat the Lease as terminated under
11 U.S.C. /section/ 365(h) or any similar or successor law or right,
and hereby assigns to Mortgagee the sole and exclusive right to make or
refrain from making any such election, and Grantor agrees that any such
election, if made by Grantor, shall be void and of no force or effect.
(vii) If the lessor or acting lessor under the Lease rejects
or disaffirms the Lease pursuant to any Bankruptcy Law and Mortgagee
elects to have Grantor remain in possession under any legal right
Grantor may have to occupy the premises leased pursuant to the Lease,
then (1) Grantor shall remain in such possession and shall perform all
acts necessary for Grantor to retain its right to remain in such
possession for the unexpired term of the Lease (including all renewals
thereof) whether such acts are required under the then existing terms
and provisions
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of the Lease or otherwise, and (2) all of the terms and provisions of
this Shore Mortgage and the lien created hereby shall remain in full
force and effect and shall be extended automatically to such
possession, occupancy and interest of Grantor.
(viii) Grantor will from time to time, after demand of
Mortgagee, use reasonable efforts to obtain and deliver to Mortgagee a
written statement from lessor under the Lease, duly acknowledged, and
certifying to Mortgagee and the Holders (i) that the Lease is then in
full force and effect and has not been modified (or, if modified,
setting forth all modifications), (ii) the date to which the rent,
additional rent and other charges thereunder have been paid, (iii)
whether or not, to the best knowledge of lessor under the Lease,
Grantor is in default under the Lease, and, if Grantor is in default,
the specific nature of all such defaults and (iv) as to any other
matters reasonably requested by Mortgagee and reasonably related to the
Lease.
(ix) Prior to the recording in the public records of this
Shore Mortgage, Grantor will record or cause to be recorded that
certain Landlord's Consent to Lease Encumbrance, dated November __,
1998, between Capitol Lake Properties, Inc., as landlord, and Grantor,
setting forth Mortgagee's name and address and that Mortgagee is the
holder of this Shore Mortgage and establishing and preserving
Mortgagee's rights and the obligations of the lessor under the Lease to
Mortgagee as set forth therein.
(x) Grantor shall deliver to Mortgagee an original Non
Disturbance and Attornment Agreement from the holder of any mortgage
encumbering the real property affected by the Leasehold Interest, in a
form previously agreed to by Mortgagee.
(h) Each provision of this Shore Mortgage is subject to, and
shall be enforced in compliance with, the Gaming Laws (as defined in the
Indenture).
6. PERFORMANCE BY MORTGAGEE. All sums duly paid by Mortgagee
or any Holder in connection with the payment or performance of any act performed
by Mortgagee in connection with the Mortgaged Property shall be paid by Grantor
to Mortgagee in accordance with the Transaction Documents, as applicable, and,
if such payment by Mortgagee or any Holder occurs after the applicable grace or
cure period, then such payment shall be with interest, payable from and
including the date of disbursement or advance, to and including the
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date of payment calculated at the Additional Interest Rate (as hereinafter
defined), and the same shall be deemed to be secured by this Shore Mortgage and
shall be a lien on the Mortgaged Property prior to any right, title to, interest
in or claim upon the Mortgaged Property attaching subsequent to the attachment
of the lien of this Shore Mortgage. For the purpose of so curing any such
default, Mortgagee may after any applicable cure period (but shall be under no
obligation to) do any act or execute any document necessary or desirable for
such purpose in the name of Grantor, and Grantor irrevocably appoints Mortgagee
as its true and lawful attorney-in-fact, which appointment is coupled with an
interest and is unconditional and irrevocable, for such purposes.
7. CONFLICTS WITH SECURITY AGREEMENT. In the event of a
conflict between the provisions of the Security Agreement (as defined in the
Indenture) and the provisions of this Shore Mortgage, the Shore Mortgage shall
govern in all matters relating to the validity and enforceability of the lien
created hereby on the Real Property and the Improvements and (except as
expressly set forth to the contrary herein or in the Security Agreement), the
Security Agreement shall govern in all other respects.
8. INSURANCE. (a) Unless such types of insurance are no longer
reasonably commercially available, Grantor shall maintain all insurance required
by the Lease and in addition, with respect to the Real Property and the
Improvements, as follows: (i) special causes of loss insurance (formerly known
as all-risk insurance), flood and sprinkler leakage, if applicable, in an amount
sufficient to prevent Grantor from being or becoming a co-insurer within the
terms of the policy or policies providing such insurance, and in any event for
not less than the full replacement value of the Improvements and the Equipment,
as reasonably determined by Mortgagee; (ii) business interruption insurance for
loss occasioned by the perils commonly insured in a special causes of loss
policy for a period ending no earlier than the Maturity Date (as defined in the
Indenture) and in an aggregate amount not less than the real estate taxes,
additional interest and other assessments for the Real Property and the
Improvements and all other continuing expenses of the Mortgaged Property,
including, without limitation, all payments required to be made by Grantor under
the Lease; (iii) commercial general liability insurance, including blanket
contractual liability, completed operations and personal injury coverage, with a
combined single limit for any one occurrence of at least FIVE MILLION DOLLARS
($5,000,000); (iv) worker's compensation and employer's
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liability insurance, subject to statutory limits or better, in respect of any
work or other operations on, about or in connection with the Real Property and
the Improvements; and (v) such other insurance with respect to the Real Property
and the Improvements in such amounts as Mortgagee, from time to time, may
reasonably request against such other insurable hazards which are commonly
insured against in respect of property similar to the Real Property and the
Improvements (and, with respect to clause (v) only, PROVIDED that such insurance
is available at commercially reasonable rates).
(b) The insurance maintained by Grantor under clauses (i),
(ii) and, if appropriate, (v) of subparagraph (a) of this Paragraph shall bear a
standard noncontributory first mortgagee endorsement in favor of Mortgagee. The
insurance maintained by Grantor under clause (iii) and, if appropriate, (v)
above shall name Mortgagee as an additional insured. All insurance maintained by
Grantor shall provide that no cancellation, material change or reduction in the
coverage or amounts thereof shall be effective until at least thirty (30) days
or, in the case of non-payment of premiums, ten (10) days, after written notice
to Mortgagee thereof.
(c) Grantor shall furnish Mortgagee with certificates
evidencing all such policies, endorsements and renewals and evidence of payment
of premiums therefor and, certified copies of all such policies, endorsements
and renewals certified by the insurance carrier. In this regard, Grantor further
covenants and agrees that, in any suit or action for damages arising from the
alleged negligence of Grantor in which action Mortgagee or any Holder is
included or made a defendant, Grantor agrees to assume all of the burden, cost
and expense of the defense or settlement of such action or claim and will pay
any judgment which may be obtained against Mortgagee or any Holder.
(d) Grantor shall not carry separate or additional insurance
concurrent in form or contributing, in the event of loss, with that required
hereunder unless endorsed in favor of Mortgagee as loss payee or additional
insured, as applicable, and designating that such insurance shall contain
endorsements providing coverage secondary to the insurance required to be
carried hereunder. Nothing contained herein shall prohibit Grantor from holding
or obtaining an owner's policy of title insurance covering the Real Property.
(e) Each policy of insurance required by this Shore Mortgage
(hereinafter collectively referred to as the "POLICIES") shall be carried with a
company which is licensed
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to do business in the state in which the Real Property is located and is rated
A-minus-12 or higher by Best's Rating Guide, or an equivalent rating, with such
other publication of a similar nature as shall be in current use, except that
Grantor may obtain such insurance from Lloyds of London or from a protection and
indemnity club which is comparable in financial strength to insurance companies
rated A-minus-12. All policies of insurance placed with a mutual company shall
be nonassessable. All policies of insurance at any time carried by Grantor on
the Mortgaged Property (whether carried pursuant to the requirements of this
Shore Mortgage or otherwise) shall name Mortgagee as joint payee for all
payments made by such insurance company. Grantor shall pay the premiums for the
Policies as the same become due and payable. Not later than thirty (30) days
prior to the expiration date of each of the Policies, Grantor will deliver to
Mortgagee a renewal policy or policies (or binder(s) evidencing-same) marked
"premium paid" or accompanied by other evidence of payment of premium
satisfactory to Mortgagee.
(f) In the event of any insured loss, Grantor hereby
authorizes and directs any insurance company concerned to make payment of such
loss (only with respect to the insurance policies described in subparagraphs
8(a)(i), 8(a)(ii) (PROVIDED, HOWEVER, in the case of 8(a)(ii) only, any such
payments shall be made to Mortgagee only after an Event of Default, as defined
in Paragraph 19 hereof which has not been waived in writing by the Holders under
the Indenture) and, as applicable, 8(a)(v)) directly and solely to Mortgagee to
be applied as hereinafter provided. Grantor, acting in its reasonable judgment,
shall make any necessary proof of loss and shall adjust and compromise all
claims under all policies and shall cause the applicable insurance company to
make payment thereof as herein provided; and Grantor shall sign all receipts,
vouchers, releases and other instruments which may be reasonably necessary or
desirable in aid of such payment. Any Insurance Proceeds paid to Mortgagee shall
be held as trust funds, and Mortgagee shall dispose of such proceeds, as
provided in Paragraph 13. In the event that any Insurance Proceeds are paid by
check to Grantor or to Grantor and Mortgagee as joint payees, Grantor agrees
that it shall endorse such check over to Mortgagee.
(g) In the event that Grantor fails to keep the Real Property
and the Improvements insured in compliance with this Paragraph, Mortgagee may,
but shall not be obligated to, obtain insurance and pay the premiums therefor,
and Grantor shall, on demand, reimburse Mortgagee for all sums advanced and
expenses incurred in connection therewith. Such sums and expenses,
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together with interest thereon at the Additional Interest Rate, shall be deemed
part of the Secured Obligations and secured by the lien of this Shore Mortgage.
(h) Subject to the provisions of Paragraph 13 hereof, nothing
contained in this Paragraph or elsewhere in this Shore Mortgage shall relieve
Grantor of its duty to maintain, repair, replace or restore the Improvements or
the Equipment or rebuild the Improvements, from time to time, in accordance with
the applicable provisions of the Transaction Documents, and nothing in this
Paragraph or elsewhere in this Shore Mortgage shall relieve Grantor of its duty
to pay the Secured Obligations, which shall be absolute, regardless of the
occurrence of damage to or destruction of or condemnation of all or any portion
of the Mortgaged Property.
9. PAYMENT OF TAXES, ETC. Except as otherwise provided in
Paragraph 16 hereof, Grantor shall pay, prior to the date upon which any fine,
penalty, interest or cost may be added thereto or imposed by law for the
nonpayment thereof, all taxes, assessments, water rates, sewer rents and other
charges, including vault charges and license fees for the use of vaults, chutes
and similar areas adjoining the Real Property or the Improvements, of any kind
or nature whatsoever, ordinary or extraordinary, now or hereafter levied,
assessed or imposed upon or which constitute a lien upon or against the Real
Property or the Improvements or any portion thereof (collectively, the "TAXES").
Grantor shall deliver to Mortgagee promptly after request therefor by Mortgagee,
receipted bills or cancelled checks evidencing the payment of prior taxes to the
date upon which any fine, penalty, interest or cost may be added thereto or
imposed by law for the nonpayment thereof. In the case of any assessment payable
in installments, each installment thereof shall be paid prior to or on the date
on which such installment becomes due and payable without imposition of any
fine, penalty, interest or cost. Grantor shall not be entitled to any credit on
the Notes or any other sums which may become payable under the terms thereof or
hereof, or otherwise, by reason of the payment of Taxes.
10. ESCROW FUND. (a) Grantor shall, following an Event of
Default which has not been waived in writing by the Holders in accordance with
the Indenture, pay to Mortgagee on the first day of each calendar month
one-twelfth of an amount (hereinafter referred to as the "ESCROW FUND") which
would be sufficient to pay the Taxes, all insurance premiums and all of
Grantor's monetary obligations under the Lease payable, or estimated by
Mortgagee to be payable, during the ensuing twelve
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(12) months, which shall be invested as provided in Section 10(b) hereof, with
income earned thereon becoming a part of the Escrow Fund, PROVIDED that
Mortgagee shall bear no liability for any loss occasioned by investment of the
Escrow Fund as herein provided, by any delays in investing or reinvesting the
Escrow Fund or by any failure to achieve the maximum possible yield from the
Escrow Fund. Mortgagee will apply the Escrow Fund to the payment of Taxes and
insurance premiums which are required to be paid by Grantor pursuant to the
provisions of this Shore Mortgage. If the amount of the Escrow Fund shall exceed
such amounts payable by Grantor pursuant to the provisions of this Shore
Mortgage, Mortgagee shall at its election, (a) return any excess to Grantor, (b)
credit such excess against future payments to be made to the Escrow Fund or (c)
reimburse Mortgagee for any amount owed to it under this Shore Mortgage or under
any of the Transaction Documents. If the Escrow Fund is not sufficient to pay
such amounts as the same become payable, Grantor shall on demand pay to
Mortgagee an amount which shall be sufficient to make up the deficiency. Any
amounts in the Escrow Fund shall be kept separate and segregated from the
general funds of Mortgagee. If this Shore Mortgage is sold or assigned by
Mortgagee in whole, Mortgagee shall deduct any amount owing to it under this
Shore Mortgage or any Transaction Document and transfer to the assignee the
balance, if any, then held by Mortgagee under this Paragraph and, upon such
assignment and transfer, Mortgagee shall have no further obligation to Grantor
with respect to such amount. If at any time Grantor tenders to Mortgagee full
payment of the entire Secured Obligations, including any applicable premium or
penalty, and the lien of the Indenture or this Shore Mortgage shall have been
discharged, Mortgagee shall refund to Grantor any balance remaining in the
Escrow Fund.
(b) In the event that the Escrow Fund is created, Mortgagee
shall create an account denominated "Louisiana Casino Cruises, Inc. -- Shore
Mortgage Escrow Fund" (or some similar name) in which to hold all amounts in the
Escrow Fund. All amounts from time to time in the Escrow Fund shall be invested
in the First American Fund (or, if the First American Fund should become
unavailable for any reason, a comparable cash management fund). Mortgagee is
specifically authorized to implement its automated cash investment system to
assure that funds in the Escrow Fund are invested and to charge its normal cash
management fees, which may be deducted from income earned on investments.
11. SPACE LEASES, RENTS AND CASH COLLATERAL. (a) As additional
and collateral security for payment of the Secured Obligations, and as
cumulative of any and all rights
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and remedies herein provided, Grantor hereby bargains, sells, transfers, assigns
and sets over to Mortgagee for the benefit of the Holders, any and all Space
Leases and Rents and any and all cash collateral to be derived from the
Mortgaged Property, or the use and occupation thereof, or under any contract or
bond relating to the construction or reconstruction of the Mortgaged Property,
including all Rents, royalties, revenues rights, deposits (including security
deposits) and benefits accruing to Grantor under all Space Leases, and the right
to receive the same and apply them against the Secured Obligations or against
Grantor's other obligations hereunder or the Company's obligations under the
Transaction Documents, together with all Space Leases, contracts, bonds, leases
and other documents evidencing the same now or hereafter in effect and all right
of Grantor thereunder. Nothing contained in the preceding sentence shall be
construed to bind Mortgagee to the performance of any of the provisions of any
such Space Lease, contract, bond, lease or other documents or otherwise impose
any obligation upon Mortgagee, except that Mortgagee shall be accountable for
any money actually received pursuant to such assignment to the extent of its
disposition thereof in a manner inconsistent with this Shore Mortgage or the
Transaction Documents. Grantor shall deliver to Mortgagee upon Mortgagee's
request an executed counterpart of each such Space Lease, contract, bond or
other documents. The assignment of said Space Leases, Rents, income profits,
proceeds and cash collateral, and any of the aforesaid rights with respect
thereto and to the contracts, bonds, leases and other documents evidencing the
same, is intended to be and is an absolute present assignment from Grantor to
Mortgagee and not merely the passing of a security interest.
(b) So long as there shall exist no Event of Default hereunder
which has not been waived in writing by the Holders in accordance with the
Indenture, Grantor shall have the right and license to exercise all rights,
options and privileges extended to the lessor under the terms of the Space
Leases, including, without limitation, the right to collect all Rents. Grantor
agrees to hold the same in trust and to use the same, FIRST, in payment of the
Secured Obligations, SECOND, the Taxes and insurance premiums payable hereunder
and all other charges on or against the Mortgaged Property and, THIRD, to the
expenses of Grantor's business in or on the Mortgaged Property.
(c) In the event of any such Event of Default which has not
been so waived, the right and license set forth in subparagraph (c) of this
Paragraph shall be automatically revoked, and, thereafter, Mortgagee shall have
the right and authority to exercise any of the rights or remedies referred to
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or set forth herein. In addition, upon such an Event of Default, Grantor shall
promptly pay to Mortgagee (i) all rent prepayments and security or other
deposits paid to Grantor pursuant to any Space Leases and (ii) all charges for
services or facilities or for escalations which were paid pursuant to any Space
Leases to the extent allocable to any period from and after such Event of
Default and any such sums received by Mortgagee shall be applied by Mortgagee in
accordance with Section 506 of the Indenture.
(d) If Grantor is not required to surrender possession of the
Mortgaged Property hereunder in the event of any such Event of Default which has
not been so waived, Grantor will pay monthly in advance to Mortgagee, or to any
receiver appointed to collect same, the income, profits or proceeds received by
Grantor under any of the Space Leases.
(e) Grantor will upon Mortgagee's request execute, acknowledge
and deliver to Mortgagee, in form approved by Mortgagee, one or more general or
specific assignments of the lessor's interest under any Space Lease (which are
consistent with the foregoing provisions). Grantor will, on demand, pay to
Mortgagee, or reimburse Mortgagee for the payment of, any reasonable costs or
expenses incurred in connection with the preparation or recording of any such
assignment.
(f) Grantor will (i) perform or cause to be performed the
lessor's material obligations under any Space Lease, (ii) enforce the
performance by the lessee under its respective Space Lease of all of said
lessee's material obligations thereunder and (iii) give Mortgagee prompt notice
and a copy of any notice of default, event of default, termination or
cancellation sent or received by Grantor.
(g) Except to the extent expressly permitted herein or under
the other Transaction Documents, Grantor will not, without Mortgagee's consent,
(i) assign, mortgage, pledge or otherwise transfer, dispose of or encumber,
whether by operation of law or otherwise, any Space Lease or the Rents or other
income thereunder or therefrom, (ii) accept or permit the acceptance of a
prepayment of any Rents for more than one month in advance of the due dates
therefor, (iii) amend, modify or otherwise alter any Space Lease or (iv) cancel,
terminate or accept a surrender of any Space Lease.
(h) Grantor will from time to time, promptly upon Mortgagee's
request, prepare and deliver to Mortgagee such information concerning the Space
Leases as Mortgagee shall request.
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12. MAINTENANCE OF THE PROPERTY; ALTERATIONS. Notwithstanding
Section 1006 of the Indenture, Grantor will cause the Mortgaged Property to be
maintained and kept in good condition, repair and working order (ordinary wear
and tear excepted) and supplied with all necessary Equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of Grantor may be necessary so that
the business carried on in connection therewith may be conducted at all times,
except, in every case, as and to the extent that Grantor may be prevented by
fire, strikes, lockouts, acts of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion or unavoidable casualty
or similar causes beyond the control of Grantor. Grantor further agrees to
permit Mortgagee (and its agents, employees and contractors) to enter upon and
inspect the Mortgaged Property at any time during normal business hours upon
reasonable notice and, at Mortgagee's option, after the giving of a notice of
default hereunder and the expiration of any applicable grace period, to make
such repairs, replacements, renewals or additions, or to otherwise protect and
maintain the same in good, safe, insurable condition, but nothing contained in
this Paragraph shall be deemed to impose any duty upon Mortgagee or affect in
any manner the obligations of Grantor hereunder or of the Company under the
Transaction Documents.
13. DAMAGE TO AND DESTRUCTION OF THE MORTGAGED PROPERTY. (a)
In the event that, at any time during the term of the Notes, the Real Property,
the Improvements or the Equipment shall be damaged or destroyed, in whole or in
part, by fire or other casualty covered by insurance, Grantor shall give prompt
written notice thereof to Mortgagee. At such time as such damage, destruction or
casualty shall occur, the Insurance Proceeds payable in connection therewith
shall be payable to Mortgagee in accordance with Paragraph 8 hereof and shall be
deposited in the Collateral Account (as defined in the Indenture) and shall be
released, applied and/or distributed in accordance with Sections 1018 and
1204(a) of the Indenture.
(b) Upon the occurrence of an Event of Default which has not
been waived in writing by the Holders in accordance with Section 513 of the
Indenture, Mortgagee shall have the right to apply such Insurance Proceeds in
accordance with Section 506 of the Indenture.
14. CONDEMNATION. (a) In the event that the Mortgaged
Property, or any part thereof, shall be taken in condemnation proceedings or by
exercise of the right of eminent domain, or by conveyance in lieu of
condemnation, or as a
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result of the exercise by any governmental authority of any right or option to
purchase (hereinafter collectively called "PROCEEDINGS"), Mortgagee shall have
the right to participate in any such Proceedings at Grantor's expense, including
reasonable attorneys' fees and disbursements, and any Eminent Domain Awards that
may be made or any proceeds thereof shall be deposited with Mortgagee and held
in trust by Mortgagee and distributed in the manner herein set forth. The
parties agree to execute any and all further documents that may be required in
order to facilitate collection of any Eminent Domain Award and the making of any
such deposit.
(b) If, at any time during the term of the Notes, there occurs
a Proceeding, any Eminent Domain Awards payable in connection therewith shall be
deposited in the Collateral Account and shall be released, applied and/or
distributed in accordance with Sections 1018 and 1204(a) of the Indenture.
(c) Upon the occurrence of an Event of Default which has not
been waived in writing by the Holders in accordance with Section 513 of the
Indenture, Mortgagee shall have the right to apply such Eminent Domain Awards in
accordance with Section 506 of the Indenture.
15. COMPLIANCE WITH AGREEMENTS, LAWS, ETC. Subject to Section
16, Grantor agrees to perform and comply in all material respects with all
covenants, agreements and restrictions affecting the Mortgaged Property and with
all laws, ordinances, acts, rules, regulations and orders of any legislative,
executive, administrative or judicial body, commission or officer (whether
federal, state or local) exercising any power of regulation or supervision over
Grantor or any part of the Mortgaged Property, whether now or hereafter enacted
and in force, whether the same be directed to the erection, repair, manner of
use or structural alteration of the Improvements or otherwise. Grantor further
agrees (i) to comply with the terms of all insurance policies covering or
applicable to the Mortgaged Property, all requirements of the issuer of any such
policy, and all orders, rules, regulations and other requirements of or
standards recommended by the National and Regional Fire Protection Associations
(or any other body exercising similar functions) applicable to or affecting the
Mortgaged Property or any use or condition of the Mortgaged Property, and (ii)
to procure, maintain and comply with all permits, licenses, approvals or other
authorizations required for any use of the Mortgaged Property then being made,
and for the proper erection, installation, operation and maintenance of the
Improvements and the Equipment or any portion of any of the foregoing, subject
to the right to
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contest the applicability or validity of any license, permit, approval or
authorization in accordance with the provisions of Paragraph 16 hereof. With
respect to the compliance obligations of Grantor in this Paragraph 15 other than
Grantor's obligation to comply with all environmental or hazardous materials
laws, ordinances, rules, regulations or orders, Grantor shall have no compliance
obligation under this Paragraph 15 where failure to comply would not have a
material adverse effect on (a) the use made by Grantor of, the value or
condition of, or the business conducted on the Mortgaged Property or (b) the
rights or interests of Mortgagee or any Holder.
16. CONTEST OF TAXES, ASSESSMENTS AND LIENS. Notwithstanding
anything to the contrary contained in this Shore Mortgage, Grantor shall have
the right to contest, at its own expense, by appropriate legal proceedings
conducted in good faith and with due diligence, the amount or validity of any
Taxes or encumbrance referred to herein (other than this Shore Mortgage or any
other document or instrument securing all or any portion of the Secured
Obligations), or any of the laws, ordinances, acts, rules, regulations orders,
licenses and authorizations referred to herein; PROVIDED that (a) Grantor gives
Mortgagee timely notice of its intention to contest the same, (b) the
commencement of such proceedings shall suspend the collection or enforcement of
the matter under contest, or, if the commencement of such proceedings does not
suspend such collection or enforcement, Grantor shall have made payment of any
item sought to be collected with or without protest, (c) there shall be no
impairment of the lien of this Shore Mortgage or undue interference with the
normal conduct of Grantor's riverboat gaming operation at the Mortgaged
Property, (d) neither the Mortgaged Property, nor any part thereof or interest
therein, would be in any immediate danger of being sold, forfeited or lost, (e)
neither Mortgagee nor any Holder would be potentially subjected to criminal, or
in imminent danger of civil, liability for failure to comply therewith pending
the outcome of such proceedings, (f) in the case of Taxes, assessments, charges
or other impositions, Grantor shall have either (i) paid the amount in dispute
prior to instituting such contest, in which event the notice requirement of
subparagraph (a) of this Paragraph shall be satisfied by giving notice prior to
initiating such contest rather than prior to making payment, or (ii) furnished
such security, if any, as may be required by Mortgagee during the pendency of
such proceedings, and (g) if such contest be finally resolved against Grantor,
Grantor shall promptly pay the amount required to be paid, together with all
interest and penalties accrued thereon, or comply with the applicable
requirement. Grantor
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shall indemnify and save Mortgagee and each Holder harmless from and against any
liability, loss, damage, cost or expense of any kind that may be imposed upon
Mortgagee or such Holder in connection with any such contest and any
determination resulting therefrom.
17. CURE OF DEFAULTS BY MORTGAGEE. If Grantor shall default in
the payment of any Taxes or other assessments, charges or impositions as herein
required; shall fail or refuse to keep the Improvements and Equipment in good
repair; shall fail or refuse to insure the Mortgaged Property as herein
required; shall fail to pay and satisfy liens or encumbrances against the
Mortgaged Property as herein required in respect of which security shall not
have been given as herein permitted; shall fail to pay any other sum or make any
other deposit elsewhere in this Shore Mortgage required to be paid or deposited;
or shall otherwise fail to make any payment or perform any act required to be
made or performed hereunder within any applicable grace or cure period, if any,
then Mortgagee, without further demand upon Grantor, and without waiving or
releasing any obligation or default, may (provided, that one or more Holders
shall have deposited with Mortgagee sufficient funds in order to pay the same),
but shall not be obligated to: pay such Taxes or other assessments, charges or
impositions; redeem the Mortgaged Property from any tax sale or forfeiture;
purchase any tax title obtained, or which shall be obtained thereon, without
inquiring into the validity or invalidity of any such Taxes, tax deed, or
assessments; make reasonable repairs to the Mortgaged Property; procure such
insurance and pay such insurance premium charges; pay or settle any and all
suits or claims for such liens; satisfy any such encumbrances or any other
claims that may be made against the Mortgaged Property or any part thereof; pay
any other sum or make any other deposit herein required to be paid or made by
Grantor or perform any such act for the account and at the expense of Grantor,
and enter upon the Mortgaged Property for any such purpose and take all such
action thereon as Mortgagee or any of its duly appointed agents, may deem
necessary or appropriate therefor; and all monies paid for any of the purposes
authorized in this Paragraph or for similar purposes set forth elsewhere in this
Shore Mortgage and all expenses paid or incurred in connection therewith,
including reasonable attorneys' fees and disbursements and any other monies
disbursed or advanced by Mortgagee under any Transaction Document to protect the
lien of this Shore Mortgage, shall be due and payable upon demand, with interest
("ADDITIONAL INTEREST"), from and including the date of disbursement or advance
to and including the date of payment, at a per annum rate equal to the rate
borne by the Notes (the "ADDITIONAL
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INTEREST RATE"). Any sum payable pursuant to this Shore Mortgage as Additional
Interest (A) shall be deemed a part of the Secured Obligations, (B) shall be a
lien on the Mortgaged Property equal in priority to the original indebtedness
secured by this Shore Mortgage, and (C) may be included in any decree
foreclosing this Shore Mortgage to be paid out of the proceeds of the sale of
the Mortgaged Property if not otherwise paid by Grantor. The maximum amount of
all Secured Obligations secured by this Shore Mortgage is Seventy-Five Million
Dollars ($75,000,000.00).
18. INDEMNITY. Grantor hereby agrees to indemnify, defend and
hold Mortgagee (and its directors, officers, agents and employees) and each
Holder harmless from and against any and all loss, liability, damage, claim,
judgment or expense (including attorneys' fees and expenses, bond expenses,
printing and automated document preparation and retention expenses and other
ordinary litigation expenses) incurred by it (or such director, officer, agent
or employee) in connection with the acceptance or administration of Mortgagee's
duties under this Shore Mortgage, any action or proceeding to foreclose this
Shore Mortgage or in or to which Mortgagee or any Holder may be made a party due
to the existence of this Shore Mortgage or the other Transaction Documents or to
which action or proceeding Mortgagee or any Holder may become a party for the
purpose of protecting the lien of this Shore Mortgage. All sums paid by
Mortgagee or any Holder to prosecute or defend the rights herein set forth shall
be deemed a part of the Secured Obligations and shall be paid by Grantor to
Mortgagee or such Holder within ten (10) days after written demand, and if not
paid within that period, shall accrue interest from and including the date of
disbursement or advance by Mortgagee or such Holder to and including the date of
payment by Grantor at the Additional Interest Rate.
19. EVENTS OF DEFAULT. If any one or more of the following
events (each an "EVENT OF DEFAULT") shall occur:
(a) if Grantor defaults in the payment of the principal of (or
premium, if any, on) the Notes at its maturity;
(b) if Grantor defaults in the payment of any interest on any
Note when it becomes due and payable, and such default continues for a
period of ten (10) days;
(c) if Grantor fails for thirty (30) days after the giving to
it by Mortgagee of written notice, or for such lesser time period as
may be specified in this Shore
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Mortgage and with or without notice as may be specified, to comply with
any covenant made by it in this Shore mortgage; or if such default is
not capable of being cured in the sole and reasonable opinion of
Mortgagee within thirty (30) days or such lesser time as may be
specified in this Shore Mortgage, if Grantor shall fail to commence
such cure within ten (10) days following receipt of notice from
Mortgagee and thereafter, expeditiously, continuously and diligently
commences to prosecute the same to completion;
(d) if a default other than as referred to in Paragraph 19(a)
or (b) hereof shall occur under any of the Transaction Documents and
shall continue beyond any applicable grace period, if any, respectively
provided for therein; or
(e) if one or more judgments, orders or decrees are rendered
against Grantor which requires the payment in money, either
individually or in an aggregate amount, that is more than $1,000,000
and such judgment, order or decree shall not be discharged, waived or
enforcement thereof stayed for a period of 60 consecutive days;
then, in any such event, Mortgagee may, in accordance with Article 5 of the
Indenture and by written notice to Grantor, declare the entire unpaid balance of
the Secured Obligations or any portion thereof to be forthwith due and payable,
and thereupon such entire balance or portion thereof shall become so due and
payable without presentment, protest or further demand or notice of any kind,
all of which are hereby expressly waived, and Grantor will forthwith pay to
Mortgagee the entire Secured Obligations or portion thereof, as applicable, and,
to the extent permitted by law, the premiums and penalties, if any, provided in
this Shore Mortgage and each other Transaction Document, as applicable, and such
payment shall be applied in accordance with Section 506 of the Indenture.
20. ADDITIONAL REMEDIES. If any one or more Events of Default
which has not been waived in writing by the Holders in accordance with the
Indenture shall occur, then, and in any such event, Mortgagee shall have the
following rights, in addition to the right of acceleration provided in this
Shore Mortgage or otherwise provided in any Transaction Document, by law or in
equity, all of which rights and remedies shall be, to the fullest extent
permitted by law, cumulative:
(a) POSSESSION. Mortgagee and its agents may enter upon the
Mortgaged Property, and exclude Grantor and its
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agents and servants wholly therefrom, without liability for trespass,
damages or otherwise, and take possession of all books, records and
accounts relating thereto and all other Mortgaged Property, and Grantor
agrees to surrender possession of the Mortgaged Property and of such
books, records and accounts to Mortgagee or its agents on demand after
the happening of any Event of Default; and having and holding the same,
may use, operate, managel, preserve, control and otherwise deal
therewith and conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers,
without interference from Grantor; and upon each such entry and from
time to time thereafter may, at the expense of Grantor and the
Mortgaged Property, without interference by Grantor and as Mortgagee
may deem advisable, (i) insure or reinsure the Mortgaged Property, (ii)
make all necessary or proper repairs, renewals, replacements,
alterations, additions, betterments and improvements thereto and
thereon and (iii) in every such case in connection with the foregoing,
have the right to exercise all rights and powers of Grantor with
respect to the Mortgaged Property, either in Grantor's name or
otherwise;
(b) FORECLOSURE. Mortgagee may, at its option, foreclose this
Shore Mortgage for any portion of the Secured Obligations which is then
due and payable, whether by acceleration or otherwise;
(c) SUITS. Mortgagee may, either with or without first taking
possession, proceed by suit or suits in equity or at law, or by any
other appropriate remedy or proceeding, to protect and enforce its
rights hereunder whether for the specific performance of any covenant
or agreement contained herein or in any other Transaction Document or
for an injunction against the violation of any of the terms hereof or
thereof or in aid of the exercise of any right, power or remedy granted
to Mortgagee herein or therein, or to enforce the payment of all or any
part of the Secured Obligations, or to foreclose the lien and security
interest of this Shore Mortgage against the Mortgaged Property or any
part thereof, and to have all of the Mortgaged Property or any part
thereof sold in one or more sales (as an entirety or in parcels) under
the judgment or decree of a court of competent jurisdiction or
otherwise. All rights of action under this Shore Mortgage may be
enforced by Mortgagee without the possession of the Notes and without
the production thereof at any trial or other proceeding relative
thereto;
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(d) RECEIVER. Mortgagee, in any action to foreclose the lien
of this Shore Mortgage, to the extent permitted by law, shall be
entitled as a matter of right, and without notice, to the appointment
of a receiver of the Mortgaged Property or any part thereof, pending
such proceedings, with such powers as the court, making such
appointment, shall confer, and Grantor hereby consents to the
appointment of such receiver and will not oppose any such appointment;
or
(e) SECURITY INTEREST. In addition to the rights and remedies
of Mortgagee hereinabove set forth and not in lieu thereof, upon the
occurrence of an Event of Default, Mortgagee shall have all of the
rights and remedies of a holder of a security interest under the Code
with respect to the Security Interest Property (provided that Mortgagee
shall give Grantor fifteen (15) days' notice of any public or private
sale of all or any portion of the Security Interest Property) and under
any other applicable law, and all rights provided or referred to herein
and in each other Transaction Document, all of which rights and
remedies shall, to the fullest extent permitted by law, be cumulative.
21. AUTHORIZATION TO EXECUTE DEEDS, APPOINTMENT OF KEEPER,
ETC. (a) Upon the occurrence of an Event of Default which has not been waived in
writing by the Holders in accordance with the Indenture, Grantor irrevocably
appoints Mortgagee as its true and lawful attorney-in-fact, which appointment is
coupled with an interest and is unconditional and irrevocable, in Grantor's name
and stead and on its behalf, for the purpose of effectuating any sale,
assignment, transfer or delivery of the Mortgaged Property or any part thereof
or any interest therein for the enforcement of this Shore Mortgage as Mortgagee
may reasonably consider necessary or appropriate, with full power of
substitution, Grantor hereby ratifying and confirming all that such attorney
shall lawfully do by virtue hereof. If so requested by Mortgagee or any other
purchaser, Grantor shall ratify and confirm any such sale, assignment, transfer
or delivery by executing and delivering to Mortgagee, or such other purchaser,
all proper deeds, bills of sale, assignments, releases and other instruments as
may be designated in any such request. Mortgagee shall use reasonable efforts to
deliver to Grantor, promptly after the execution or filing thereof, copies of
any document executed by Mortgagee on behalf of Grantor pursuant to this
Paragraph or Paragraph 28 hereof; PROVIDED that the failure of Mortgagee to so
deliver any such document to Grantor shall not affect the validity or
enforceability of such document.
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(b) In the event the Mortgaged Property, or any part thereof,
is seized as an incident to an action for the recognition or enforcement of this
Shore Mortgage by executory process, ordinary process, sequestration, writ of
fieri facias or otherwise, Grantor and Mortgagee agree that the court issuing
any such order shall, if petitioned for by Mortgagee, direct the applicable
sheriff to appoint as a keeper of the Mortgaged Property, the Mortgagee or any
agent designated by Mortgagee or any person named by the Mortgagee at the time
such seizure is effected. This designation is pursuant to Louisiana Revised
Statutes 9:5136 through 5140.2, inclusive, as the same may be amended, and
Mortgagee shall be entitled to all the rights and benefits afforded thereunder.
It is hereby agreed that the keeper shall be entitled to receive as
compensation, in excess of its reasonable costs and expenses incurred in the
administration or preservation of the Mortgaged Property, an amount equal to
$500 per day. The designation of keeper made herein shall not be deemed to
require Mortgagee to provoke the appointment of such a keeper.
22. PROCEEDS OF FORECLOSURE SALE. In any foreclosure of this
Shore Mortgage there shall be allowed and included in the decree of sale to be
paid, in the following order, out of the proceeds of such sale:
First: All reasonable fees and costs owed to or incurred by
Mortgagee and its agents and consultants hereunder or under the
Transaction Documents;
Second: All court costs, allowances authorized or permitted by
statute or a court, fees of receivers, attorneys' fees and
disbursements, reasonable appraisers' fees, expenditures for
documentary and expert evidence, stenographers' charges, publication
costs and reasonable costs (which may be estimated as to items to be
expended after the entry of the decree) of procuring all abstracts of
title, title searches and examinations, title policies and similar data
with respect to title which Mortgagee may deem reasonably necessary and
any other expenses of the foreclosure proceeding. All such expenses
shall become additional indebtedness secured hereby and immediately due
and payable, with interest computed at the Additional Interest Rate,
from and including the date of payment to and including the date of
repayment to Mortgagee;
Third: Any lien prior to the lien and security interest of
this Shore Mortgage which Mortgagee may consider necessary or desirable
to discharge;
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Fourth: All other items advanced or paid by Mortgagee pursuant
to this Shore Mortgage from any other Transaction Document, with
interest (to the extent permitted by law), from and including the date
of any such advance to and including the date of payment computed at
the Additional Interest Rate; and
Fifth: In accordance with Section 506 of the Indenture.
23. PURCHASE OF THE PROPERTY BY MORTGAGEE. Mortgagee may for
its own account be a purchaser of the Mortgaged Property or any part thereof or
any interest therein at any sale thereof, whether pursuant to foreclosure or
otherwise, and may apply the amount of the Secured Obligations outstanding
toward the purchase price thereof.
24. WAIVER OF RIGHT TO BRING COUNTERCLAIM IN FORECLOSURE
ACTION. In any action to foreclose the lien or liens of this Shore Mortgage,
including a partial foreclosure, no defense, counterclaim or setoff shall be
available to Grantor other than one which denies the existence or sufficiency of
the facts upon which the action is grounded or which raises an issue concerning
the priority of liens or the statute of limitations or other bar to an action
based on the passage of time. If any defense, counterclaim or setoff, other than
one permitted by the preceding sentence, is timely raised in such foreclosure
action, such defense, counterclaim or setoff shall be dismissed; PROVIDED,
HOWEVER, that, if such defense, counterclaim or setoff is based on a claim that
could be tried in an action for money damages, such claim may be brought in a
separate action which shall not thereafter be consolidated with such foreclosure
action. Nothing contained herein, however, shall limit Grantor's right to bring
a separate action, at law or in equity, to adjudicate the issues that are the
basis for any purported defense, claim or setoff. The bringing of such separate
action for money damages shall not be deemed to afford any grounds for staying
the foreclosure action.
25. UNIFORM COMMERCIAL CODE. This Shore Mortgage constitutes a
security agreement under the Code and a fixture filing for the purposes of
Article 9 of the Code and a security interest shall attach to the Security
Interest Property for the benefit of Mortgagee as additional security for the
Secured Obligations. Pursuant to Section 32 hereof, Grantor is obligated to make
certain filings and re-filings. Grantor also hereby authorizes Mortgagee to file
financing and continuation statements with respect to the Security Interest
Property
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without the signature of Grantor and, upon request, Grantor shall promptly
execute financing and continuation statements in form satisfactory to Mortgagee
to further evidence and secure Mortgagee's interest in the Security Interest
Property. Mortgagee shall deliver to Grantor a copy of each such filing promptly
after making the same. Upon the occurrence of any Event of Default, Mortgagee
shall have all of the rights and remedies of a secured party under the Code,
with respect to the Security Interest Property, or other applicable law, and all
rights and remedies provided for herein and in each other Transaction Document,
all of which rights and remedies are cumulative to those provided elsewhere in
this Shore Mortgage or otherwise available to Mortgagee. Following the
occurrence of any Event of Default, Mortgagee, pursuant to Section 9-501(4) of
the Code, shall have the option of proceeding as to both real and personal
property in accordance with its rights and remedies in respect of the real
property, in which event the default provisions of the Code shall not apply. The
parties agree that, in the event Mortgagee elects to proceed with respect to the
Equipment separately from the Real Property, Grantor will assemble the Equipment
(other than those items of Equipment which are affixed to the Improvements and
not removable without material damage to such items or the Improvements) and
make the Equipment available to Mortgagee at a place or places reasonably
convenient to Mortgagee. Any notice of sale, disposition or other intended
action by Mortgagee, sent to Grantor at the address of Grantor specified for
notices herein at least fifteen (15) days prior to such action, shall constitute
reasonable notice to Grantor. All replacements, renewals and additions to the
Equipment shall become and be immediately subject to the security interest
herein of Mortgagee and be covered by this Shore Mortgage as part of the
Mortgaged Property. Grantor shall, from time to time, on request of Mortgagee,
deliver to Mortgagee an inventory of the Equipment in reasonable detail. Grantor
warrants and represents that all Equipment now is, and that all replacements
thereof, substitutions therefor and additions thereto, will be, owned by Grantor
free and clear of liens, encumbrances or security interests of others prior to
or on a parity with the interest herein of Mortgagee other than security
interests or leases given to providers of Equipment to finance the purchase of
the same and Permitted Encumbrances and Permitted Liens (as defined in the
Indenture). Neither the provisions of this Paragraph nor the filing of any
separate security agreement or financing statement with respect to Mortgagee's
security interest in the Security Interest Property shall be construed as in any
way derogating or impairing the intention of Grantor and Mortgagee hereto that
the Security Interest Property shall, at all times and for all purposes and
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in all proceedings, both legal and equitable, be regarded as a part of the
Mortgaged Property.
26. CERTIFICATE AS TO NO DEFAULT, ETC.; INFORMATION. At any
time, and from time to time, but in no event less than annually, Grantor will
deliver to Mortgagee, within ten (10) days after receipt of a request or if no
such request has been made by Mortgage within the previous 365 days, Grantor
shall in any event deliver to Mortgagee, a written statement duly acknowledged
by an authorized representative of Grantor stating (i) the outstanding amount of
the Secured Obligations and the components thereof, (ii) whether, to the best
knowledge of Grantor, any offsets or defenses exist against the Secured
Obligations and (iii) that such officer has reviewed this Shore Mortgage and
each other Transaction Document and that, to the best of Grantor's knowledge,
there exists no default, condition or event which, with the giving of notice or
lapse of time or both, would constitute a default in the performance or
observance of any of the terms of this Shore Mortgage or any other Transaction
Document or, if any such default exists, specifying the nature and period of
existence thereof and what action Grantor is taking or proposes to take with
respect thereto. Grantor will also furnish to Mortgagee any such information
with respect to the Mortgaged Property as may, from time to time, be reasonably
requested by Mortgagee.
27. TERMS SUBJECT TO APPLICABLE LAW; SEVERABILITY. All rights,
powers and remedies provided herein are intended to be limited to the extent
necessary so that they will not render this Shore Mortgage invalid,
unenforceable or not entitled to be recorded, registered or filed under any
applicable law. If any term of this Shore Mortgage shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the other
terms hereof shall in no way be affected thereby.
28. MODIFICATIONS BY MORTGAGEE. Grantor agrees that, without
affecting the liability of Grantor or any other person or entity (except any
person or entity expressly released in writing) liable for payment of the
Secured Obligations or for performance of any obligation contained herein or
affecting the lien and security interest of this Shore Mortgage upon the
Mortgaged Property or any part thereof, Mortgagee may, at any time and from time
to time, without notice to or the consent of any person or entity, release any
person or entity liable for payment of any debt or for performance of any
obligation, extend the time or agree to alter the terms of payment of any such
indebtedness or performance of any such obligation, modify or waive any
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obligation, subordinate, modify or otherwise deal with the lien and security
interest hereof, accept additional security of any kind, consent to the making
of any map or plat of the Mortgaged Property, the creating of any easements
thereon on or any covenants restricting use or occupancy thereof, or exercise or
refrain from exercising or waive any right Mortgagee may have.
29. CHANGE IN LAWS REGARDING TAXATION. In the event of the
passage after the date of this Shore Mortgage of any Federal law or law of the
state in which the Real Property is located deducting from the value of real
property for the purposes of taxation any lien or encumbrance thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes or the manner of the collection of any
such taxes, and imposing a tax, either directly or indirectly, on this Shore
Mortgage or all or any part of the Secured Obligations, or upon Mortgagee or any
Holder or any by reason of or as holder of any of the foregoing (excepting
therefrom any income tax on interest payments made to Mortgagee or any Holder
with respect to the Secured Obligations), Grantor shall, if permitted by law,
pay any tax imposed as a result of any such law within the statutory period or
within thirty (30) days after demand by Mortgagee, whichever is less.
30. DOCUMENTARY STAMPS. If at any time the United States of
America, any state thereof or any governmental subdivision of any such state
shall require revenue or other stamps to be affixed to this Shore Mortgage,
Grantor will pay for the same, with interest and penalties thereon, if any.
31. CUMULATIVE REMEDIES OF MORTGAGEE; NO WAIVER. No legal,
equitable or contractual right, power or remedy of Mortgagee or any Holder
hereunder or under any other Transaction Document shall be exclusive of any
other but, rather, each right, power or remedy shall be separate, cumulative and
concurrent and shall be in addition to every right, power or remedy now or
hereafter existing at law or in equity. No delay in the exercise of, or omission
to exercise, any right, power or remedy accruing on any default shall impair any
such right, power or remedy or be construed to be a waiver of any such default
or acquiescence therein, nor shall it affect any subsequent default of the same
or a different nature. Every such right, power or remedy may be exercised
concurrently or independently, and when and as often as may be deemed expedient,
by Mortgagee or any Holder, as applicable. Mortgagee may resort for the payment
of the Secured Obligations to the Mortgaged Property and to any other security
held by Mortgagee in such order and manner as Mortgagee, in its
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discretion, may elect. Mortgagee or any Holder may take action to recover the
Secured Obligations or any portion thereof or to enforce any covenant herein or
in any other Transaction Document without prejudice to the right of Mortgagee
thereafter to foreclose this Shore Mortgage. No act of Mortgagee or any Holder
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
32. FILING OF SHORE MORTGAGE, ETC. Grantor, forthwith upon the
execution and delivery of this Shore Mortgage and thereafter, from time to time,
as required, will cause this Shore Mortgage and any security instrument or
Transaction Document creating a lien or evidencing the lien hereof upon the
Mortgaged Property and each instrument of further assurance, and each supplement
to any of the foregoing and each modification to any of the foregoing, to be
filed, registered or recorded in such manner and in such places as may be
required by any present or future law in order to publish notice of and fully to
protect the lien hereof upon, and the interest of Mortgagee in, the Mortgaged
Property. Grantor will pay all filing, registration or recording fees and all
reasonable expenses incident to the preparation, execution and acknowledgment of
this Shore Mortgage, any mortgage supplemental hereto, any security instrument
with respect to the Mortgaged Property and any instrument of further assurance,
and all federal, state, county and municipal taxes, duties, imposts, assessments
and charges arising out of or in connection with the execution and delivery of
this Shore Mortgage, any mortgage supplemental hereto, any security instrument
with respect to the Mortgaged Property or any instrument of further assurance
and shall furnish to Mortgagee evidence satisfactory to it that all recordings
and re-recordings, registrations and re-registrations, filings and re-filings
have been effectively made. Grantor shall hold harmless and indemnify Mortgagee
and each Holder and its successors and assigns against any liability incurred by
reason of the imposition of any tax on the making and recording of this Shore
Mortgage.
33. MARSHALLING. Grantor waives and releases any right to have
the Mortgaged Property marshalled.
34. WAIVER OF NOTICE. Grantor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to matters
for which this Shore Mortgage specifically and expressly provides for the giving
of notices by Mortgagee to Grantor, and Grantor hereby expressly waives the
right to receive any notice from Mortgagee with respect to any matter for which
this Shore Mortgage does not specifically
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and expressly provide for the giving of notice by Mortgagee to Grantor.
35. RECOVERY OF SUMS REQUIRED TO BE PAID. Mortgagee shall have
the right, from time to time, to take action to recover any sum or sums which
constitute a part of the Secured Obligations as the same become due, without
regard to whether or not the balance of the Secured Obligations shall be due and
without prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by Grantor existing
at the time such earlier action was commenced.
36. FURTHER ASSURANCES. Grantor covenants that it will, at
Grantor's sole cost and expense and at the request of Mortgagee, (i) promptly
correct any defect or error which may be discovered in the Transaction
Documents, (ii) promptly do, execute, acknowledge and deliver, and record and
re-record, file and re-file and register and re-register, any and all such acts
and instruments as Mortgagee may require from time to time in order to carry out
more effectively the purposes of this Mortgage and the other Transaction
Documents and to effectuate, complete or perfect, or to continue and preserve,
the liens and security interests created by this Mortgage and the other
Transaction Documents as first and prior liens and security interests, subject
only to the Permitted Encumbrances and Permitted Liens (as defined in the
Indenture) and such other matters as may be expressly permitted under the
Transaction Documents, upon all of the Mortgaged Property, whether now owned or
hereafter acquired by Grantor, (iii) promptly furnish Mortgagee with evidence
satisfactory to Mortgagee of every such recording, filing or registration and
(iv) promptly execute and deliver to Mortgagee such other documents and
instruments and take such other actions as Mortgagee may from time to time
require in order to evidence, preserve, protect and effectuate Mortgagee's
rights hereunder.
37. NOTICES. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic, telex or cable
communication) and mailed, telecopied, telegraphed, telexed, cabled or
delivered, if to Mortgagee at its address at 000 Xxxx 0xx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Administration; if to Grantor at its
address at 0000 Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000; or, as to each
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall be
effective when received (with respect
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to notices given by Grantor to Mortgagee) and when given (with respect to
notices given by Mortgagee to Grantor).
38. LIABILITY. If Grantor consists of more than one person or
entity, the obligations and liabilities of each such person or entity hereunder
shall be joint and several and solidary.
39. HEADINGS, ETC. The headings and captions of the paragraphs
of this Shore Mortgage are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
40. SUCCESSORS AND ASSIGNS. The provisions of this Shore
Mortgage shall be binding upon Grantor, its successors and assigns, and all
persons and entities claiming under or through Grantor or any such successor or
assign, and, subject to the terms of the Transaction Documents, shall inure to
the benefit of Mortgagee and each Holder and their respective successors and
assigns.
41. DISCHARGE OF LIEN. Upon the observance and performance of
each and every covenant and condition set forth herein and in the Transaction
Documents and payment in full of the Secured Obligations, Mortgagee shall
promptly deliver to Grantor a confirmatory certification evidencing the same and
a satisfaction or other instruments, in recordable form, as may be reasonably
necessary to evidence such discharge and to satisfy the same of record.
42. SURVIVAL OF ASSIGNMENT. Notwithstanding anything to the
contrary contained in this Shore Mortgage, the assignment, pledge and mortgaging
of the Space Leases, Construction Documents, Rents, Eminent Domain Awards and
the Insurance Proceeds, and any cash collateral derived from the Mortgaged
Property and the right to apply any of the foregoing in accordance with the
terms of this Shore Mortgage, shall survive any foreclosure of the lien of this
Shore Mortgage.
43. MISCELLANEOUS. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Shore Mortgage shall be used interchangeably in singular or plural form and
the word "Grantor" shall mean each Grantor and any subsequent owners of the
Mortgaged Property or any part thereof or interest therein, the word "Mortgagee"
shall mean Mortgagee or any successor thereto, and the word "Mortgagee" shall
include an individual, corporation, partnership, trust, unincorporated
association,
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government, governmental authority or other entity. References to "this
paragraph" shall mean the paragraph commencing with an Arabic numeral in which
the affected phrase or sentence is contained. Whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms and the singular form of nouns and pronouns shall include the
plural and vice versa. The terms "herein," "hereof" or "hereunder" or similar
terms used in this Shore Mortgage refer to this entire Shore Mortgage and not to
the particular provision in which the term is used. This Shore Mortgage may be
executed in any number of duplicate originals and each such duplicate original
shall be deemed to constitute but one and the same instrument. The terms of this
Shore Mortgage supersede the terms of any and all prior instruments consolidated
herein.
44. GOVERNING LAW; INTERPRETATION. This Shore Mortgage is to
be construed in accordance with and governed by the internal laws of the state
in which the Real Property is located, without regard to principles of conflicts
of law. It is acknowledged and agreed that, in the preparation of this Shore
Mortgage and each other Transaction Document, indistinguishable contributions
were made by representatives of both Grantor and Mortgagee and that Grantor and
Mortgagee each waives any and all rights, both in law or in equity, to have the
provisions of this Shore Mortgage or any part thereof or the provisions of any
other Transaction Document interpreted in favor of one over the other based on a
claim that representatives of one or the other were the principal draftsmen of
any such document.
45. TRUE COPY. Grantor acknowledges having received a true
copy of this Shore Mortgage without charge.
46. EXPENSES OF ENFORCEMENT. All costs and expenses paid by
Mortgagee in the performance and the enforcement of any right or remedy afforded
Mortgagee pursuant to this Shore Mortgage or any other Transaction Document
(including reasonable attorneys' fees, expenses and disbursements) shall be paid
by Grantor upon demand by Mortgagee, shall bear interest, to the extent
permitted by law, at the Additional Interest Rate from the date of demand until
the date of payment and shall be deemed a part of the Secured Obligations and
secured by this Shore Mortgage.
47. WAIVER. (a) Grantor hereby covenants and agrees that it
will not at any time: (i) insist upon or plead, or in any manner whatever claim
or take any advantage of, any stay, exemption or extension law or any so-called
"moratorium law"
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now or at any time hereafter in force; or (ii) claim, take or insist upon any
benefit or advantage of or from any law now or hereafter in force providing for
the valuation or appraisal of the Mortgaged Property, or any part thereof, prior
to any sale or sales thereof to be made pursuant to any provisions herein
contained, or to decree, judgment or order of any court of competent
jurisdiction. Grantor hereby expressly waives any and all rights of redemption
from sale under any order or decree of foreclosure of this Shore Mortgage, on
its own behalf and on behalf of each and every person, it being the intent
hereof that any and all such rights of redemption of the Grantor and of all
other persons are and shall be deemed to be hereby waived to the full extent
permitted by the law of the state in which the Real Property is located.
(b) Grantor waives in favor of Mortgagee any and all homestead
exemptions and other exemptions of seizure or otherwise to which Grantor is or
may be entitled under the constitution and statutes of the State of Louisiana
insofar as the Mortgaged Property is concerned. The Grantor further waives: (i)
the benefit of appraisement as provided in Louisiana Code of Civil Procedure
Articles 2332, 2336, 2723 and 2724, and all other laws conferring same; (ii) the
demand and three (3) days delay accorded by Louisiana Code of Civil Procedure
Articles 2639 and 2721; (iii) the notice of seizure required by Louisiana Code
of Civil Procedure Articles 2293 and 2721; (iv) the three days delay provided by
Louisiana Code of Civil Procedure Articles 2331 and 2722; and (v) the benefit of
the other provisions of Louisiana Code of Civil Procedure Articles 2331, 2722
and 2723, not specifically mentioned above.
48. CONSTRUCTION MORTGAGE. This Shore Mortgage secures in part
an obligation incurred for the construction of Improvements on the Real Property
and constitutes a "construction mortgage" within the meaning of Section 9-313 of
the Code.
49. THE MORTGAGEE'S DUTIES. The rights, authority to approve,
or to consent to, disapprove, withhold consent, exercise judgment or discretion
and such other powers (collectively the "POWERS") conferred on Mortgagee
hereunder are solely to protect its interest in the Mortgaged Property, and
Mortgagee shall be under no obligation to exercise any such Powers. Except for
accounting for moneys actually received by it hereunder, and the safe custody of
any collateral in its possession (subject to the standards of care governing the
Mortgagee hereunder), Mortgagee shall not have any duty as to any matters
relating to any Mortgaged Property or as to ascertaining or taking action with
respect to any Mortgaged
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Property whether or not Mortgagee or any Holder has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Mortgaged Property. Nothing herein shall affect any obligation of Mortgagee or
any Holder to the Holders under the Indenture or under applicable law.
50. SHORE MORTGAGE ABSOLUTE. The obligations of Grantor under
this Shore Mortgage are independent of the obligations of Grantor under the
other Transaction Documents, and a separate action or actions may be brought and
prosecuted against Grantor to enforce this Shore Mortgage, irrespective of
whether any action is brought against Grantor under such other Transaction
Documents. All rights of Mortgagee and the mortgage, assignment and security
interest hereunder, and all obligations of Grantor hereunder, shall be absolute
and unconditional, irrespective of:
(a) any lack of validity or enforceability of any other
Transaction Document or any other agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of Grantor under
the other Transaction Documents or any other amendment or waiver of or
any consent to any departure from the other Transaction Documents,
including, without limitation, any increase in such obligations
resulting from the extension of additional credit to Grantor or
otherwise;
(c) any taking, exchange, release or non-perfection of any
other collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty, for all or any other of the
obligations of Grantor under the other Transaction Documents;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the obligations of Grantor under the other
Transaction Documents, or any manner of sale or other disposition of
any collateral for all or any of such obligations or any other assets
of Grantor;
(e) any change, restructuring or termination of the corporate
restructure or existence of Grantor; or
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(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, Grantor or a third party
grantor of a security interest or mortgage.
51. AUTHENTIC EVIDENCE. Any and all declarations of facts made
by authentic act before a notary public in the presence of two witnesses by a
person declaring that such facts lie within his knowledge, shall constitute
authentic evidence of such facts for the purpose of executory process.
52. CONFESSION OF JUDGMENT. For purposes of foreclosure under
Louisiana executory process procedures, Grantor hereby acknowledges and
confesses judgment in favor of Mortgagee for the full amount of the Secured
Obligations.
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THUS DONE AND PASSED on the day and in the month and year
hereinabove first written, in the presence of the undersigned witnesses who
hereunto sign their names with Grantor and me, Notary, after due reading of the
whole.
WITNESSES AS TO ALL SIGNATURES: LOUISIANA CASINO CRUISES, INC.
By:
Name: Xxx X. Xxxxxxx
Title: President
___________________________________
NOTARY PUBLIC
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