PREFERRED SHIP MORTGAGE ON THE WHOLE OF THE BELLE OF ORLEANS (U.S.C.G. Official Number 1033140) Maximum Principal Amount of $240,000,000 BELLE OF ORLEANS, L.L.C. c/o Peninsula Gaming Partners, LLC Dubuque, Iowa 52001 Attn: Natalie Schramm Owner and...
EXHIBIT 4.11
ON THE
WHOLE OF THE BELLE OF ORLEANS
(U.S.C.G.
Official Number 1033140)
Maximum
Principal Amount of $240,000,000
BELLE OF
ORLEANS, L.L.C.
c/o
Peninsula Gaming Partners, LLC
000 Xxxx
Xxxxxxx Xx., Xxx. 000
Dubuque,
Iowa 52001
Attn: Xxxxxxx
Xxxxxxx
Owner and
Mortgagor
In Favor
of
U.S. BANK
NATIONAL ASSOCIATION, as Collateral Agent
00
Xxxxxxxxxx Xxxxxx
St. Xxxx,
Minnesota 55107
Attn: Corporate
Trust Department
Collateral
Agent
Dated as
of October 29, 2009
Total
Amount and Discharge Amount: $240,000,000 (or such lesser amount of
principal as shall have been advanced and remain outstanding) Together With
Interest, Premium, if any, Liquidated Damages, if any, Expenses, Fees and
Performance of Mortgage Covenants
BY: BELLE
OF ORLEANS, L.L.C.
IN FAVOR
OF: U.S. BANK NATIONAL
ASSOCIATION, as Collateral Agent
BE IT
KNOWN, that on the 29th day of October, 2009, before me, the undersigned Notary
Public, duly commissioned and qualified in and for the State of Iowa and the
County of Dubuque, and in the presence of the undersigned competent witnesses,
personally came and appeared:
BELLE OF
ORLEANS, L.L.C., a Louisiana limited liability company, whose mailing address is
c/o Peninsula Gaming Partners, LLC, 000 Xxxx Xxxxxxx Xx., Xxx. 000, Xxxxxxx,
Xxxx 00000, Attn: Xxxxxxx Xxxxxxx, appearing herein through its duly
authorized representative pursuant to a resolution of its sole member (the
“Mortgagor”).
WHO AFTER
BEING XXXX XXXXX DECLARED AS FOLLOWS:
This PREFERRED SHIP MORTGAGE (as same may be amended, replaced or
supplemented from time to time hereafter, this "Mortgage") on the whole of the Vessel
(as defined below), which is dated as of October __, 2009, is provided, made and
granted by the Mortgagor, in favor of U.S. Bank National Association, as
trustee and collateral agent (the “Collateral Agent”) under the Indenture dated
as of August 6, 2009 (the “Indenture”) among Peninsula Gaming, LLC, a Delaware
limited liability company (“PGL”), Peninsula Gaming Corp., a Delaware
corporation (“PGC” and, together with PGL, the “Issuers”), the Mortgagor, each
other Subsidiary Guarantor (as defined therein) party thereto, and U.S. Bank
National Association, as Trustee and Collateral Agent. Capitalized terms not
otherwise defined herein shall have the meaning set forth for such terms in the
Indenture.
RECITALS
WHEREAS,
the Mortgagor is the sole owner of the whole of the vessel, BELLE OF ORLEANS,
Official Number 1033140, having its hailing port as New Orleans, Louisiana
(together will all appurtenances thereto as described in Granting Clause (vii)
below, the “Vessel”), and the
Vessel is documented under the laws and flag of the United States;
WHEREAS, pursuant to the Indenture the Issuers have issued their
8.375% Senior Secured Notes (together with any additional notes or notes issued
in exchange therefor or such additional notes thereof as provided in the
Indenture and as the same may be amended or supplemented from time to time
hereafter, the “Notes”) in the initial aggregate principal amount of
$240,000,000, subject to increase as provided in the Indenture and maturing on
August 15, 2015;
WHEREAS, the Mortgagor has executed a Supplemental Indenture
to, and a Subsidiary Guaranty under, the Indenture and has guaranteed the
obligations of the Issuers and the Subsidiary Guarantors under the
Indenture;
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WHEREAS, the Indenture provides that to secure performance by the
Mortgagor of its obligations under the Indenture, including the guarantee of
payment of the Notes, the Mortgagor will execute and deliver this Mortgage to
the Collateral Agent. The Indenture, the Supplemental Indenture, this
Mortgage, the Security Documents and any other document referred to in or made
with reference to the Notes are hereby incorporated by reference, and are
sometimes collectively referred to as “Transaction Documents.”
WHEREAS, in order to secure the Secured Obligations (as defined
below), the Mortgagor has duly authorized the execution and delivery of this
Preferred Ship Mortgage under and pursuant to the Commercial Instruments and
Maritime Liens Act, Chapter 313 of Subtitle 111 of Title 46 U.S.C. § 31301 et
seq. (as the same may from time to time be amended hereafter, or any reenactment
or recodification thereof, the “Ship
Mortgage Act”).
WHEREAS, for purposes of this Mortgage and in order to comply with
Section 31321(b)(3) of the Ship Mortgage Act, the parties to this Mortgage
hereby declare that the maximum amount of indebtedness that is now or will in
the future be owed under the Secured Obligations at any one time is
$240,000,000, plus interest, premium, if any, Liquidated Damages, if any,
expenses and fees incurred by the Collateral Agent and performance of the
covenants of this Mortgage and the Transaction Documents.
WHEREAS,
the interest of the Mortgagor in the Vessel and the interest mortgaged by this
Mortgage is that of one-hundred percent (100%) absolute and sole
ownership.
GRANTING
CLAUSES
NOW, THEREFORE, in consideration of ten dollars and other good and
valuable consideration, the receipt of and sufficiency of which are hereby
acknowledged, and to secure
(i) the Mortgagor’s guarantee of payment when due of
indebtedness evidenced by the Notes in the maximum principal sum of $240,000,000
payable to the order of the Holders, bearing interest as set forth in the
Indenture and maturing on August 15, 2015, such date being the “Maturity
Date,” 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 Section 4.02 hereof),
(ii) the Mortgagor’s guarantee of payment if and when due of all
amounts due in connection with a Change of Control Offer or an Excess Proceeds
Offer, in each case, in an amount not to exceed such amount calculated in
accordance with Section 4.15 and 4.13, respectively, of the Indenture, in either
case together with interest thereon as set forth in the Indenture, and premiums
and Liquidated Damages, if any, thereon,
(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 the Collateral Agent 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 Mortgage
or the obligations secured hereby,
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(v) the payment by the Mortgagor to the Collateral Agent of all
sums, if any, as may be duly expended or advanced by the Collateral Agent in the
performance of any obligation of the Mortgagor as provided hereunder,
(vi) the
payment of any and all other indebtedness that this Mortgage by its terms
secures; and
(vii) the
performance and observance of the covenants, agreements and obligations of the
Mortgagor contained herein and in the other Transaction Documents (all
obligations and sums included in the foregoing clauses (i), (ii), (iii), (iv),
(v) and (vi) being hereinafter collectively referred to as the “Secured
Obligations”), and in order to charge the Vessel with such performance
and with such payments, the Mortgagor does hereby GRANT, CONVEY, MORTGAGE,
PLEDGE, CONFIRM, ASSIGN, TRANSFER AND SET OVER, AND BY THESE PRESENTS DOES
XXXXXX XXXXX, CONVEY, MORTGAGE, PLEDGE, CONFIRM, ASSIGN, TRANSFER AND SET OVER
unto the Collateral Agent and its successors and assigns, for the benefit of
itself, the Trustee and the Holders (collectively, the “Secured Parties”), the
WHOLE of the Vessel, together, to the extent that such items may exist from time
to time, with all of its boilers, engines, machinery, masts, spars, boats,
cables, motors, tools, anchors, chains, booms, cranes, rigs, pumps, pipe, tanks,
tackle, apparel, furniture, fixtures, rigging, supplies, fittings and machinery
equipment including, but not limited to, communication systems, visual and
electronic surveillance systems and transportation systems, tools, utensils,
food and beverage, liquor, uniforms, linens, housekeeping and maintenance
supplies, fuel, and any other electronic equipment of every nature used in
connection with the operation of such vessel, all machinery, equipment, engines,
appliances and fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or safes, built-in
furniture and installations, shelving, lockers, partitions, door stops, vaults,
motors, elevators, dumb-waiters, hoses and brackets and boxes for the same, fire
sprinklers, alarm, surveillance and security systems, computers, drapes, drapery
rods and brackets, mirrors, mantles, screens, linoleum, carpets and carpeting,
plumbing, bathtubs, sinks, basins, pipes, faucets, water closets, laundry
equipment, washers, dryers, iceboxes and heating units, all kitchen and
restaurant equipment, utensils, stoves, refrigerators, ovens, ranges,
dishwashers, disposals, water heaters, incinerators, furniture, fixtures and
furnishings, all cocktail lounge supplies, including, but not limited to, bars,
glassware, bottles and tables used in connection with such Vessel, beauty and
xxxxxx equipment, and maintenance supplies used in connection with such Vessel,
all specifically designed installations and furnishings and all furniture,
furnishings and personal property of every nature whatsoever now or hereafter
owned by Mortgagor or in which Mortgagor has any rights or interest in and
located in or on, or attached to, or used or intended to be used or which are
now or may hereafter be appropriated for use on or in connection with the
operation of such Vessel or in connection with any construction being conducted
or which may be conducted thereon, and all extensions, additions, accessions,
improvements, betterments, renewals, substitutions and replacement to any of the
foregoing, all of which (to the fullest extent permitted by law) shall be
conclusively deemed appurtenances to such vessel, and all other appurtenances to
such Vessel appertaining or belonging, whether now owned or hereafter acquired,
whether on board or not, and all additions, improvements and replacements
hereafter made in or to such Vessel, or any part thereof, or in or to her
equipment and appurtenances. Notwithstanding anything to the contrary
in this Mortgage, the Secured Obligations shall not be secured by any Excluded
Asset.
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TO HAVE
AND TO HOLD the Vessel, the rights and privileges hereby conveyed or assigned,
or intended so to be, unto Collateral Agent and its successors and assigns, for
the benefit of the Secured Parties, forever for the uses and purposes and
subject to the terms and conditions herein set forth.
SUBJECT,
HOWEVER, to Permitted Liens, including the superior lien on the
Vessel in favor of Xxxxx Fargo Foothill, Inc., as agent (“Superior Lien Creditor
Agent”), which lien is superior to the lien created by this Mortgage
pursuant to that certain Intercreditor Agreement by and between Superior Lien
Creditor Agent and Collateral Agent, dated August 6, 2009 (the “Intercreditor
Agreement”), liens for the wages of the crew, general average, salvage
and any other lien arising by operation of law and in the normal course of
business and not as a result of any delay or omission by Mortgagor
(collectively, the “Permitted Maritime
Liens”).
PROVIDED
NEVERTHELESS, (a) should Issuers or any of their successors or assigns pay and
perform all of the Secured Obligations in accordance with the terms hereof and
of the other Transaction Documents and shall perform and observe all of the
agreements, covenants and provisions contained herein and in the other
Transaction Documents, or (b) a “Legal Defeasance,” a “Covenant Defeasance” or a
satisfaction and discharge of the Indenture shall have occurred in accordance
with Article VIII thereof, this Mortgage and the estate and rights hereby
granted shall cease to be binding and be void, otherwise to remain in full force
and effect. Nothing herein shall be deemed or construed to subject to
the security hereof any property other than the whole of the Vessel as defined
herein and as the term “vessel” is used in the Ship Mortgage Act.
The
Mortgagor FURTHER agrees as follows:
ARTICLE
I.
COVENANTS
Section
1.01 Performance of
Obligations. The Mortgagor shall pay and perform the Secured
Obligations. Time is of the essence hereof.
Section
1.02 Further
Assurances. The Mortgagor shall sign and deliver and cause to
be recorded any further mortgages, instruments of further assurance,
certificates and other documents as are reasonably necessary in order to
perform, perfect, continue, and preserve the obligations of the Mortgagor under
the Transaction Documents. The Mortgagor further agrees to pay to
Collateral Agent, upon demand, all costs and expenses incurred by Collateral
Agent in connection with the preparation, execution, recording, filing and
refiling of any such documents, including attorneys’ fees that are
reasonable.
Section
1.03 Operation and Maintenance;
Compliance with Laws. The Mortgagor shall cause the Vessel to
be maintained in good working order and condition, ordinary wear and tear
excepted, and the Mortgagor shall make all necessary repairs, renewals,
replacements, additions, betterments and improvements thereto, as shall be
reasonably necessary for the proper conduct of the business of the
Mortgagor. The Mortgagor shall comply or cause compliance with all
material laws, ordinances and regulations of any governmental authority having
jurisdiction over the Vessel or the manner of using or operating the
same. The Mortgagor will not cause or permit the Vessel to be
operated in any manner contrary to law and the Mortgagor will not engage in any
unlawful act or violate any law or expose the Vessel to penalty, forfeiture or
capture, and will not do or suffer or permit to be done, anything which can or
may injuriously affect the documentation of the Vessel under the laws and
regulations of the United States of America and will at all times keep the
Vessel duly documented thereunder. Mortgagor will never operate the
Vessel outside the navigation limits of the insurance carried pursuant to Section 1.06 of this
Mortgage.
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Section
1.04 Liens. This
Mortgage is and shall be maintained by the Mortgagor as a valid second mortgage
lien and second security interest in the Vessel, subject only to the Permitted
Maritime Liens. Except as otherwise provided in the Indenture, the
Mortgagor shall not, directly or indirectly, create or suffer, or permit to be
created or suffered, against the Vessel or any part thereof, and the Mortgagor
will promptly discharge any Lien that may affect the Vessel or any part thereof,
or any interest therein, except the Permitted Maritime Liens. If any
Lien not permitted hereunder is filed, the Mortgagor will cause the same to be
discharged promptly by payment or bonding or otherwise as may be customary for
vessels operated in the State of Louisiana in the manner in which the Vessel is
operated and will exhibit to Collateral Agent evidence of payment, discharge,
bonding or other disposition.
Section
1.05 Copy of Mortgage. The
Mortgagor will place, and at all times, will retain a properly certified copy of
the Mortgage on board the Vessel with her papers and will cause such certified
copy and the Vessel's Certificate of Documentation to be exhibited to
(i) any and all persons having business therewith which might give rise to
any Lien thereon other than Permitted Encumbrances and (ii) to any
representative of the Collateral Agent; and will place and keep prominently
displayed a framed printed notice in plain type reading as follows:
NOTICE
OF MORTGAGE
This
Vessel is owned by Belle of Orleans, L.L.C., a Louisiana limited liability
company ("Mortgagor"), and is
covered by a Second Preferred Ship Mortgage under 46 U.S.C. Section
31301, et seq., in favor of U.S. Bank National Association, a nationally
chartered banking association, as collateral agent for certain noteholders, to
secure payment of indebtedness. Under the terms of said Preferred
Ship Mortgage, neither the Mortgagor, any charterer, the master of this Vessel,
nor any other person has any right, power or authority to create, incur or
permit to be imposed upon this Vessel any Lien whatsoever other than Permitted
Maritime Liens (as defined in such Preferred Ship Mortgage).
Section
1.06 Insurance. The Company shall
maintain insurance on the Vessel as specified in Section 4.18 of the
Indenture.
Section
1.07 Books and Records; Financial
Information. The Mortgagor shall (i) keep complete and
accurate books and records with respect to the Vessel; (ii) permit Collateral
Agent to inspect such books and records during normal business hours and make
copies thereof at Mortgagor’s expense; and (iii) provide Collateral Agent such
information as is reasonably requested by Collateral Agent.
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Section
1.08 Mortgage, Sale, Lease of the
Vessel.
(a) The
Mortgagor will not, now or in the future, mortgage, pledge or encumber or place
any Lien or encumbrance (or permit the same to exist) on the Vessel, or any part
thereof, without the prior written consent of Collateral Agent, except for
Permitted Maritime Liens (including Liens that are replacements of Permitted
Maritime Liens to the extent that the original Indebtedness is refinanced,
renewed, or extended in accordance with the Indenture).
(b) The
Mortgagor shall not sell, convey, transfer, charter or otherwise alienate in any
manner, whether directly or indirectly, any right, title or interest in the
Vessel, or any part thereof, without obtaining in each such instance the prior
written consent of Collateral Agent, such consent not to be unreasonably
withheld, except to the extent not prohibited under the Indenture.
Section
1.09 Maintenance of
Vessel. The Mortgagor agrees:
(a) The
Mortgagor will at all times and without cost or expense to the Collateral Agent
maintain and preserve, or cause to be maintained and preserved, the Vessel in
good running order and repair, so that the Vessel shall be, insofar as due
diligence can make her so, tight, staunch, strong and well and sufficiently
tackled, appareled, furnished, equipped and in every respect seaworthy and in
compliance with all applicable United States Coast Guard
requirements.
(b) The
Collateral Agent shall have the right at any time, on reasonable notice, to
inspect or survey the Vessel to ascertain its condition and to satisfy itself
that the Vessel is being properly repaired and maintained, and the Mortgagor
shall cause to be made all such repairs, without expense to the Collateral
Agent, as such inspection or survey may show to be required. The
Mortgagor shall also permit the Collateral Agent to inspect the Vessel's logs
whenever requested, on reasonable notice, and shall furnish the Collateral Agent
with full information regarding any material casualties or other accidents or
damage to the Vessel.
(c) The
Vessel shall, and the Mortgagor covenants that she will, at all times comply
with all applicable laws, treaties and conventions of the United States, and
rules and regulations issued thereunder, and shall have on board as and when
required thereby valid certificates showing compliance therewith.
(d) The
Mortgagor will not make, or permit to be made, any substantial change in the
structure, type or speed of the Vessel or change in her rig if such change would
substantially impair the Mortgagor’s ability to conduct a gaming business on the
Vessel.
Section
1.10 Access to
Vessel. The Mortgagor will permit the Collateral Agent or any
agents or representatives thereof from time to time, upon prior reasonable
notice, full and complete access to the Vessel for the purpose of inspecting the
Vessel and her papers and, at the reasonable request of the Collateral Agent,
the Mortgagor will deliver for inspection copies of any and all contracts and
documents relating to the Vessel, whether on board or not.
7
Section
1.11 Flag of
Vessel. The Mortgagor will not transfer or change the flag of
the Vessel unless and until, upon thirty (30) days' prior written notice to the
Collateral Agent, all filings, recordations or other actions necessary to
perfect and protect the Lien created by this Mortgage and to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder with
respect to the Vessel after giving effect to such transfer or change of flag
shall have been completed (including, without limitation, opinions of counsel as
to the perfected status of the Collateral Agent after giving effect to such
transfer or change of flag).
ARTICLE
II.
REPRESENTATIONS AND
WARRANTIES
The
Mortgagor makes the following representations and warranties:
Section
2.01 Existence and Powers.
The Mortgagor is a limited liability company duly created and validly existing
and in good standing under the laws of the State of Louisiana. The
Mortgagor has the power to own its property and to carry on its business and to
execute and perform the Transaction Documents. The Mortgagor has
obtained all material licenses and permits necessary to conduct its business in
the manner presently conducted. The Mortgagor is and will
remain a citizen of the United States of America within the meaning of 46 U.S.C.
§ 50501, or its successor statutes, entitled to own and document the Vessel
under the laws of the United States of America and operate the Vessel in the
coastwise trade.
Section
2.02 Ownership, Liens, Compliance
with Laws. The Mortgagor lawfully owns the whole of and is
lawfully possessed of the Vessel free from any Lien, encumbrances or taxes
whatsoever (other than any encumbrance or tax contested by the Mortgagor in good
faith and with respect to which a reserve is established to the extent required
under GAAP), except for Permitted Maritime Liens. All applicable
zoning and environmental, fire, safety or health laws, ordinances and
regulations affecting the Vessel permit the current use and occupancy thereof,
and the Mortgagor has obtained all necessary and material consents, permits and
licenses required for such use. The Mortgagor will comply with and
satisfy all applicable formalities and provisions of the laws and regulations of
the United States of America and the laws of the State of Louisiana in order to
perfect, establish and maintain this Mortgage, and any supplement or amendment
hereto.
Section
2.03 Authority,
Consents. The execution, delivery and performance of the
Transaction Documents have been duly authorized by all necessary action of the
Mortgagor. Except for consents and approvals previously obtained, no
consent or approval of, or exemption by, any person or entity, governmental or
private, is required to authorize the execution, delivery and performance of the
Transaction Documents or the validity thereof.
Section
2.04 Binding
Agreement. The Transaction Documents are the valid and legally
binding obligations of the Mortgagor enforceable against the Mortgagor in
accordance with their respective terms, except to the extent limited by
equitable principles or bankruptcy, insolvency or similar laws affecting the
rights of creditors generally.
Section
2.05 No Conflict,
Default. The execution, delivery and performance by the
Mortgagor of the Transaction Documents will not violate or cause default under
or permit acceleration of any material agreement to which the Mortgagor is a
party or by which it or the Vessel is bound. To the Mortgagor’s best
knowledge, it is not in default (beyond any applicable grace period) in the
performance of any material agreement, order, writ, injunction, decree or demand
to which it is a party or by which it is bound.
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Section
2.06 Litigation. Except
as otherwise disclosed to Collateral Agent, there is no litigation, arbitration
or other proceeding in process or to the Mortgagor’s best knowledge pending or
threatened against the Vessel or the Mortgagor except for (a) matters that are
fully covered by insurance (subject to customary deductibles), and (b) matters
arising after the date hereof that if decided adversely to the Mortgagor,
reasonably could not be expected to have a materially adverse effect on the
ability of the Mortgagor to fulfill its obligations under the Transaction
Documents or on the condition, financial or otherwise, of the Mortgagor’s
business, properties or assets.
Section
2.07 Second Mortgage
Lien. This Mortgage constitutes a valid mortgage and, upon
proper recording hereof, will constitute a valid and perfected second priority
mortgage lien, and security interest in the Vessel (subject only to the
Permitted Maritime Liens and any mortgage filed pursuant to the provisions of
the Intercreditor Agreement), and there are no defenses or offsets to the
Mortgagor’s obligations pursuant to this Mortgage or the other Transaction
Documents, including without limitation, the Mortgagor’s applicable obligations
to pay and perform the Secured Obligations.
Section
2.08 Tax Liens; Bankruptcy. There
are no federal, state or local tax claims or liens assessed or filed against the
Mortgagor or the Vessel for taxes which are due and payable, unsatisfied of
record or docketed in any court of the state in which the Vessel is located or
in any other court located in the United States, and no petition in bankruptcy
has ever been filed by the Mortgagor, or, to the Mortgagor’s knowledge, against
the Mortgagor, and the Xxxxxxxxx has never made any assignment for the benefit
of creditors or taken advantage of any insolvency act or any act for the benefit
of debtors.
Section
2.09 Damage. The
Vessel has not been damaged or destroyed by fire or other casualty.
Section
2.10 Documentation. The
Vessel is duly documented in the name of the Mortgagor under the laws and flag
of the United States of America, with the National Vessel Documentation Center,
entitled to engage in operations conducted by the Mortgagor, and the Mortgagor
will, at its own expense, cause the Vessel to remain so
documented. The Mortgagor will cause this Mortgage immediately after
its execution and delivery, to be filed for recordation with the National Vessel
Documentation Center in accordance with the Ship Mortgage Act and will comply
with and satisfy all of the provisions of the United States law and all other
provisions and requirements of law from time to time in force so as to establish
and maintain the Lien of this Mortgage, as at any time amended, supplemented or
assigned, as a valid and enforceable preferred ship mortgage under the Ship
Mortgage Act upon the Vessel and upon all additions, improvements and
replacements hereafter made on or to the Vessel or any part thereof for the
amount of the Secured Obligations. The Mortgagor shall promptly pay
and discharge all United States Coast Guard fees and expenses in connection with
the recordation of this Mortgage and any supplement or amendment
thereto.
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ARTICLE
III.
CASUALTY–CONDEMNATION
Section
3.01 Damage or
Destruction. During the period the indebtedness remains
outstanding, in the event that the Vessel shall be damaged or destroyed in whole
or in part, by fire or other casualty covered by insurance, the Mortgagor shall
give prompt written notice thereof to Collateral Agent.
Section
3.02 Requisition. In
the event of the requisition (whether of title or use), condemnation,
sequestration, seizure or forfeiture of the Vessel by any governmental or
purported authority or by anyone else, the security of this Mortgage shall be
deemed to attach to, and to the Mortgagor’s claim for, any compensation,
purchase price, reimbursement or award therefor, and any payments in respect
thereof shall be paid to the Collateral Agent and applied in accordance with the
terms of the Indenture and Intercreditor Agreement. The Mortgagor
shall promptly execute and deliver to Collateral Agent such documents and do and
perform such acts as may be reasonably necessary to cause the collection by the
Collateral Agent of such compensation, purchase price, reimbursement or
award.
ARTICLE
IV.
DEFAULTS AND
REMEDIES
Section
4.01 Events of
Default. The occurrence of an “Event of Default” as defined in
Article VI of the Indenture shall constitute an Event of Default
hereunder
Section
4.02 Remedies. Upon
the occurrence of an Event of Default, all or a portion of the Secured
Obligations may, in accordance with the terms of the Indenture, be accelerated
and become immediately due and payable upon notice to the
Mortgagor. The outstanding principal amount and the interest accrued
thereon of the Secured Obligations shall be due and payable without presentment,
demand or further notice of any kind, all of which are hereby expressly waived
by the Mortgagor. The Mortgagor will pay to Collateral Agent the
entire Secured Obligations or portions thereof, as applicable, and to the extent
permitted by law, the premiums and penalties, if any, provided in this Mortgage
and each other Transaction Document, as applicable, and such payment shall be
applied in accordance with Section 6.10 of the Indenture.
In the
event of any Event of Default and subject to the Intercreditor Agreement,
whether or not an acceleration shall occur, Collateral Agent shall have the
right to proceed to protect and enforce its rights by one or more of the
following remedies:
(a) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO BRING SUIT at law, in equity or in admiralty,
either for damages, specific performance of any agreement contained in any
Transaction Document, or for the foreclosure of this Mortgage, or for the
enforcement of any other appropriate legal or equitable remedy.
(b) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO OBTAIN A RECEIVER for the Vessel and of the
freight, hire, earnings, issues, revenues, income and profits (“Xxxxxxx Income”) due
or to become due and arising from the operation thereof at any time after an
Event of Default, whether or not an action for foreclosure has been commenced.
Any court having jurisdiction shall at the request of Collateral Agent following
an Event of Default appoint a receiver to take immediate possession of the
Vessel and to charter or operate the same as he may deem best for the interest
of all parties concerned, and such receiver shall be liable to account to the
Mortgagor only for the net profits, after application of Vessel Income upon the
costs and expenses of the receivership and upon the Secured
Obligations.
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(c) COLLATERAL
AGENT SHALL HAVE THE RIGHT (BUT NOT THE OBLIGATION), AT ANY TIME, TO ADVANCE
MONEY TO THE RECEIVER to pay any part or all of the items which the receiver
should otherwise pay if cash were available from the Vessel and sums so
advanced, with interest (“Additional Interest”)
at the per annum rate applicable to the Notes (the “Applicable Rate”),
shall be secured hereby, or if advanced during the period of redemption shall be
a part of the sum required to be paid to redeem from the sale.
(d) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO COLLECT THE VESSEL INCOME and apply the same in
the manner hereinbefore provided with respect to a receiver. For that
purpose, Collateral Agent may enter and take possession of the Vessel and manage
and operate the same and take any action which, in Collateral Agent’s judgment,
is necessary to collect the Vessel Income and to conserve the value of the
Vessel. The expense (including any receiver’s fees,
attorneys’ fees, costs and agent’s compensation) incurred pursuant to the powers
herein contained shall be secured by this Mortgage. Collateral Agent
shall not be liable to account to the Mortgagor for any action taken pursuant
hereto other than to account for any Vessel Income actually received by
Collateral Agent. Enforcement hereof shall not cause Collateral Agent
to be deemed a trustee in possession unless Collateral Agent elects in writing
to be a trustee in possession.
(e) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO ENTER AND TAKE possession of the Vessel, at any
time, wherever the same may be, without legal process (except to the extent
required by applicable law), and, except to the extent caused by the Collateral
Agent’s gross negligence or bad faith, without being responsible for loss or
damage, and the Mortgagor or other person in possession forthwith upon demand of
the Collateral Agent, shall surrender to the Collateral Agent possession of the
Vessel, and the Collateral Agent may, without being responsible for loss or
damage, except to the extent caused by the Collateral Agent’s gross negligence
or bad faith, hold, lay up, lease, charter, operate or otherwise use the Vessel
for such time and upon such terms as it may deem to be for its best advantage,
and demand, collect and retain all hire, freights, earnings, issues, revenues,
income, profits, return premiums, salvage awards or recoveries, recoveries in
general average, and all other sums due or to become due in respect of the
Vessel or in respect of any insurance thereon from any person whomsoever,
accounting only for the net profits, if any, arising from such use of the Vessel
and charging upon all receipts from the use of the Vessel or from the sale
thereof by court proceedings or pursuant to subsection (4.03) next following,
all costs, expenses, charges, damages or losses by reason of such use; and if at
any time the Collateral Agent shall avail itself of the right herein given it to
take the Vessel, the Collateral Agent shall have the right to dock the Vessel at
any dock, pier or other premises of the Mortgagor without charge, or to dock her
at any other place at the cost and expense of the Mortgagor.
11
(f) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO ENTER AND TAKE possession of the Vessel, upon
reasonable notice, wherever the same may be, without legal process (except to
the extent required by applicable law), and if it seems desirable to the
Collateral Agent and without being responsible for loss or damage, except to the
extent caused by the Collateral Agent’s gross negligence or bad faith, sell the
Vessel, at any place and at such time as the Collateral Agent may specify and in
such manner and such place (whether by public or private sale) as the Collateral
Agent may deem advisable (without necessity of bringing the Vessel to the place
designated for such sale), free from any claim by the Mortgagor in admiralty, in
equity, at law or by statute, after first giving notice of the time and place of
any public sale with a general description of the property in the following
manner:
(1) by
publishing such notice for ten consecutive days in a daily newspaper of general
circulation published in Morgan City, Louisiana;
(2) if
the place of sale should not be Morgan City, Louisiana, then also by publication
of a similar notice in a daily newspaper, if any, published at the place of
sale; and
(3) by
mailing a similar notice to the Mortgagor at its last known address on the day
of first publication and notice of the time and place of any private sale by
mailing such notice to the Mortgagor at its last known address.
(4) The
notice provisions contained in this Section are not exclusive, and to the extent
that Collateral Agent elects to foreclose or enforce its interests in a court of
admiralty, Collateral Agent will comply with the notice provisions required by
any applicable federal statutes and procedural rules.
(g) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO FILE PROOF OF CLAIM and other documents as may be
necessary or advisable in order to have its claims allowed in any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings affecting the Mortgagor, its creditors or its
property, for the entire amount due and payable by the Mortgagor under the
Secured Obligations, this Mortgage and any other instrument securing the Secured
Obligations, at the date of the institution of such proceedings, and for any
additional amounts which may become due and payable by the Mortgagor after such
date.
(h) COLLATERAL
AGENT SHALL HAVE THE RIGHT TO EXERCISE ALL of the rights and remedies in
foreclosure and otherwise given to Collateral Agents by the provisions of
applicable law, including, but not limited to, the provisions of the Ship
Mortgage Act and Louisiana Law (if applicable).
12
Each
remedy herein specifically given shall be in addition to every other right now
or hereafter given or existing at law or in equity, and each and every right may
be exercised from time to time and as often and in such order as may be deemed
expedient by Collateral Agent and the exercise or the beginning of the exercise
of one right shall not be deemed a waiver of the right to exercise at the same
time or thereafter any other right. Collateral Agent shall have all
rights and remedies available under the law in effect now and/or at the time
such rights and remedies are sought to be enforced, whether or not they are
available under the law in effect on the date hereof.
Section
4.03 Sale of Vessel; Credit
Bid. Any sale of the Vessel made pursuant to terms of this Mortgage shall
operate to divest all right, title and interest of any nature whatsoever of the
Mortgagor therein and thereto and shall bar any claim from the Mortgagor, its
successors and assigns, and all persons claiming by, through or under
them. No purchaser shall be bound to inquire whether notice has been
given, or whether any default has occurred, or as to the property of the sale,
or as to the application of the proceeds thereof. In the case of any
such sale, the Secured Parties shall be entitled to bid for the purchase of the
Vessel and, for the purpose of making settlement or payment for the property
purchased, to use and apply the Secured Obligations in order that there may be
credited against the amount remaining due and unpaid thereon the sums payable
out of the net proceeds of such sale with respect to the Secured Obligations
after allowing for the costs and expense of sale and other charges and any
superior mortgages or liens; and thereupon such purchaser shall be credited, on
account of such purchase price, with the net proceeds that shall have been so
credited with respect to the Secured Obligations. At any such sale,
the Secured Parties may bid for and purchase such property and upon compliance
with the terms of sale may hold, retain and dispose of such property without
further accountability therefor.
Section
4.04 Expenses of Exercising
Rights, Powers and Remedies. The reasonable expenses
(including any receiver’s fees, attorneys’ fees, appraisers’ fees, environmental
engineers’ and/or consultants’ fees, costs incurred for documentary and expert
evidence, stenographers’ charges, publication costs, and costs (which may be
estimated as to items to be expended after entry of the decree of foreclosure)
of procuring all abstracts of title, as are reasonably necessary either to
prosecute any foreclosure action or to evidence to bidders at any sale which may
be had pursuant to any foreclosure decree the true condition of the title to or
the value of the Vessel, and Collateral Agent’s compensation) incurred by
Collateral Agent after the occurrence of any Event of Default under this
Mortgage and/or in pursuing the rights, powers and remedies contained in this
Mortgage shall be immediately due and payable by the Mortgagor, with interest
thereon at the Applicable Rate, and shall be added to the indebtedness secured
by this Mortgage.
Section
4.05 Restoration of
Position. In case Collateral Agent shall have proceeded to
enforce any right under this Mortgage by foreclosure, sale, entry or otherwise,
and such proceedings shall have been discontinued or abandoned for any reason or
shall have been determined adversely, then, and in every such case, the
Mortgagor and Collateral Agent shall be restored to their former positions and
rights hereunder with respect to the Vessel subject to the lien
hereof.
13
Section
4.06 Marshalling. The
Mortgagor, for itself and on behalf of all persons, parties and entities which
may claim under the Mortgagor, hereby waives all requirements of law relating to
the marshalling of assets, if any, which would be applicable in connection with
the enforcement by Collateral Agent of its remedies for an Event of Default
hereunder, absent this waiver. Collateral Agent shall not be required
to sell or realize upon any portion of the Vessel before selling or
realizing upon any other portion thereof.
Section
4.07 Waivers. No
waiver of any provision hereof shall be implied from the conduct of the
parties. Any such waiver must be in writing and must be signed by the
party against which such waiver is sought to be enforced. The waiver
or release of any breach of the provisions set forth herein to be kept and
performed shall not be a waiver or release of any preceding or subsequent breach
of the same or any other provision. No receipt of partial payment
after acceleration of any of the Secured Obligations shall waive the
acceleration. No payment by the Mortgagor or receipt by Collateral
Agent of a lesser amount than the full amount secured hereby shall be deemed to
be other than on account of the sums due and payable hereunder, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and Collateral Agent may accept
any check or payment without prejudice to Collateral Agent’s right to recover
the balance of such sums or to pursue any other remedy provided in this
Mortgage. The consent by Collateral Agent to any matter or event
requiring such consent shall not constitute a waiver of the necessity for such
consent to any subsequent matter or event.
Section
4.08 Collateral Agent’s Right to
Cure Defaults. If the Mortgagor shall fail to comply with any
of the terms hereof with respect to the procuring of insurance, the payment of
taxes, assessments and other charges, the keeping of the Vessel in repair, the
payment and satisfaction of Liens and encumbrances against the Vessel, the
payment of any other sum or deposit required under this Mortgage, or any other
term herein contained, Collateral Agent may (but shall not be obligated to) make
advances or take other actions to perform the same without releasing the
Mortgagor from any Secured Obligations and may enter upon the Vessel for any
such purpose and take all such action thereon as Collateral Agent or any of its
duly appointed agents may deem necessary or appropriate therefor. The
Mortgagor agrees to repay upon demand all sums so advanced and all sums expended
by Collateral Agent in connection with such performance, including, without
limitation, reasonable attorneys’ fees, with Additional Interest at the
Applicable Rate from the dates such advances are made, and all sums so advanced
and/or expenses incurred, with Additional Interest at the Applicable Rate, shall
be secured hereby as Secured Obligations, but no such advance and/or incurring
of expense by Collateral Agent, shall be deemed to relieve the Mortgagor from
any default hereunder, or to release the Mortgagor from any Secured
Obligations. Collateral Agent shall not be bound to inquire into the
validity of any Lien which the Mortgagor fails to pay as and when required by
this Mortgage and which the Mortgagor does not contest in strict accordance with
the terms of this Mortgage and the other Transaction Documents.
Section
4.09 Suits and
Proceedings. Collateral Agent shall have the power and
authority (but not the obligation), upon prior notice to the Mortgagor to
institute and maintain any suits and proceedings as Collateral Agent may deem
advisable to (i) prevent any impairment of the Vessel by any acts which may be
unlawful or any violation of this Mortgage, (ii) preserve or protect its
interest in the Vessel, or (iii) restrain the enforcement of or compliance with
any legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Collateral Agent’s interest.
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Section
4.10 Application of
Proceeds. The proceeds from the foreclosure or sale hereunder
shall be applied to the payment of the Secured Obligations in accordance with
the Indenture and Intercreditor Agreement if such Secured Obligations have been
deemed due and payable upon the Event of Default. Any surplus of the
proceeds shall be paid to the Mortgagor.
Section
4.11 Sale
Proceeds. The proceeds of any sale of the Vessel and the net
earnings of any charter operation or other use of the Vessel by the Collateral
Agent under any of the powers herein specified in this Article 4, as well as
any and all other moneys received by the Collateral Agent pursuant to or under
any of the provisions of this Mortgage, shall be held and applied by the
Collateral Agent from time to time as set forth in the Indenture and
Intercreditor Agreement, any other provision in this Mortgage to the contrary
notwithstanding.
Section
4.12 Mortgagor’s License to
Possession. Unless and until one or more Events of Default
shall occur and be continuing, the Mortgagor (a) shall be suffered and permitted
to retain actual possession and use of the Vessel and (b) shall have the right,
from time to time, in its discretion, and without application to the Collateral
Agent, and without obtaining a release therefrom by the Collateral Agent, to
dispose of, free from the Lien hereof, any boilers, engines, machinery, masts,
spars, sails, rigging, boats, anchors, cables, chains, tackle, apparel,
furniture, fittings, equipment or any other appurtenances of the Vessel that are
no longer useful, necessary, profitable or advantageous in the operation of the
Vessel, by first or simultaneously replacing the same by new boilers, engines,
machinery, masts, spars, sails, rigging, boats, anchors, cables, chains, tackle,
apparel, furniture, fittings, equipment or other appurtenances of not less than
equal value, which shall forthwith become subject to the Lien of this Mortgage
as a preferred ship mortgage thereon unless otherwise permitted by the
Indenture.
Section
4.13 Notice. The
notice provisions contained in this Article 4 are not
exclusive, and to the extent that the Collateral Agent elects to foreclose or
enforce its interests in a court of admiralty, the Collateral Agent will comply
with the notice provisions required by any applicable federal statutes and
procedural rules.
ARTICLE
V.
MISCELLANEOUS
Section
5.01 Binding Effect; Survival;
Number; Gender. This Mortgage shall be binding on the
Mortgagor and its successors and assigns and inure to the benefit of Collateral
Agent and its successors and assigns. All representations and
warranties contained herein or otherwise heretofore made by the Mortgagor to
Collateral Agent shall survive the execution, delivery and foreclosure
hereof. The singular of all terms used herein shall include the
plural, the plural shall include the singular, and the use of any gender herein
shall include all other genders, where the context so requires or
permits.
Section
5.02 Severability. The
unenforceability or invalidity of any provision of this Mortgage as to any
persons or circumstances shall not render that provision unenforceable or
invalid as to any other persons or circumstances and shall not affect the
enforceability of the remaining provisions hereof.
15
Section
5.03 Mortgage Amount. The
total amount of the direct and contingent obligations secured by this Mortgage
is US$ 240,000,000 (together with interest, Premium, if any, Liquidated
Damages, if any, expenses and fees). The discharge amount of this
Mortgage is the same as the total amount described above, and there is no
separate discharge amount. Notwithstanding the foregoing or any other
statement contained herein regarding the maturity of this Mortgage, this
Mortgage shall remain in full force and effect until the full and final payment
in cash of the Secured Obligations.
Section
5.04 Notices. All
notices and demands required or permitted to be given to or made upon any party
hereto under any Transaction Document shall be in writing and shall be
personally delivered or sent by certified mail, postage prepaid, return receipt
requested or by a nationally recognized courier, or by telecopier, and shall be
deemed to be given for purposes of this Mortgage on the day that such writing is
delivered or sent to the intended recipient thereof in accordance with the
provisions of this Section. Notices shall be given to or made upon
the respective parties hereto at their respective addresses set forth
below:
If to the
Mortgagor:
Xxxxxxx
Xx Worth, LLC
c/o
Peninsula Gaming Partners, LLC
000 X.
Xxxxx Xxxxxx, X.X. Box 1750
Dubuque,
Iowa 52004
Attn: Xxxxxxx
Xxxxxxx
Fax
No. (000) 000-0000
If to
Collateral Agent:
U.S. Bank
National Association
00
Xxxxxxxxxx Xxxxxx
St. Xxxx,
MN 55107-2292
Attention: Corporate
Trust Department
Telecopier
No.: (000) 000-0000
Either
party may change the address for notices by a notice given not less than five
(5) business days prior to the effective date of the change.
Section
5.05 Survival of Warranties,
Etc. All agreements, representations and warranties made
herein shall survive the execution and delivery of this Mortgage.
Section
5.06 Applicable
Law. The Mortgagor and Collateral Agent agree that the rights
and obligations under this Mortgage regarding the creation, perfection and
enforcement of the liens and security interests herein granted shall be governed
by the Ship Mortgage Act, and where the Ship Mortgage Act is silent, by the
general maritime law of the United States. In the event
that any provisions or clause of this Mortgage conflict with applicable laws,
such conflict shall not affect other provisions of this Mortgage which can be
given effect without the conflicting provision, and to this end the provisions
of this Mortgage are declared to be severable.
16
Section
5.07 Waiver of Jury
Trial. EACH OF MORTGAGOR AND COLLATERAL AGENT, BY ITS
ACCEPTANCE OF THIS MORTGAGE, IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MORTGAGE AND ANY
OF THE OTHER SECURITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
Section
5.08 Effect. This
Mortgage is in addition to and not in substitution for any other guaranties,
covenants, obligations or other rights now or hereafter held by Collateral Agent
from any other person or entity in connection with the Secured
Obligations.
Section
5.09 Assignability. Collateral
Agent shall have the right to assign this Mortgage, in whole or in part or sell
participation interests herein, to any person obtaining an interest in the
Secured Obligations.
Section
5.10 Headings. Headings
of the Sections of this Mortgage are inserted for convenience only and shall not
be deemed to constitute a part hereof.
Section
5.11 Discharge of
Lien. In accordance with the Indenture and upon the observance
and performance of each and every covenant and condition set forth herein and in
the Indenture, then and in that case all property, rights and interest hereby
conveyed or assigned or pledged shall revert to the Mortgagor, and the estate,
right, title and interest of Collateral Agent therein shall thereupon cease,
terminate and become void; and this Mortgage, and the covenants of the Mortgagor
contained herein, shall be discharged and Collateral Agent in such case on
demand of the Mortgagor and at the Mortgagor’s cost and expense, shall execute
and deliver to the Mortgagor a proper instrument or proper instruments
acknowledging the satisfaction and termination of this Mortgage, and shall
convey, assign and transfer or cause to be conveyed, assigned or transferred,
and shall deliver or cause to be delivered, to the Mortgagor, all property,
including money, then held by Collateral Agent hereunder.
Section
5.12 Conflicts with
Indenture. In the event of a conflict between the provisions
of the Indenture and the provisions of this Mortgage, this Mortgage shall govern
in all matters relating to the validity and enforceability of the Lien created
hereby on the Vessel (except as expressly set forth to the contrary herein or in
the Indenture); the Indenture shall govern in all other respects.
Section
5.13 Mortgage
Absolute. The obligations of the Mortgagor under this Mortgage
are independent of the obligations of Mortgagor under the other Transaction
Documents, and a separate action or actions may be brought and prosecuted
against Mortgagor to enforce this Mortgage, irrespective of whether any action
is brought against Mortgagor under such other Transaction
Documents. All rights of Collateral Agent and the mortgage,
assignment and security interest hereunder, and all obligations of Mortgagor
hereunder, shall be absolute and unconditional, irrespective of:
17
(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 Mortgagor 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 the Mortgagor
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 the Mortgagor under the
other Transaction Documents;
(d) any
manner of application of collateral, or proceeds thereof, to all or any of the
obligations of Mortgagor 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 the Mortgagor;
(e) any
change, restructuring or termination of the corporate restructure or existence
of the Mortgagor; or
(f) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Mortgagor or a third party the Mortgagor of a security
interest or mortgage.
Anything
herein to the contrary notwithstanding, it is intended that nothing herein shall
waive the preferred status of this Mortgage and that, if any provision or
portion of this Mortgage shall be construed to waive its preferred status, then
such provision or portion to such extent shall be void and of no effect without
affecting the remaining provisions, which shall remain in full force and
effect.
Section
5.14 Interaction with
Indenture. All terms, covenants, conditions, provisions and
requirements of the Indenture are incorporated by reference in this
Mortgage. Notwithstanding any other provision of this Mortgage, the
terms and provisions of this Mortgage shall be subject and subordinate to the
terms of the Indenture. To the extent that the Indenture provides the
Mortgagor with a particular cure or notice period, or establishes any
limitations or conditions on Collateral Agent’s actions with regard to a
particular set of facts, the Mortgagor shall be entitled to the same cure
periods and notice periods, and Collateral Agent shall be subject to the same
limitations and conditions, under this Mortgage, as under the Indenture, in
place of the cure periods, notice periods, limitations and conditions provided
for under this Mortgage; provided, however, that such
cure periods, notice periods, limitations and conditions shall not be cumulative
as between the Indenture and this Mortgage. In the event of any
conflict or inconsistency between the provisions of this Mortgage and those of
the Indenture, including, without limitation, any conflicts or inconsistencies
in any definitions herein or therein, the provisions or definitions of the
Indenture shall govern.
18
Section
5.15 Indemnity. The
Mortgagor hereby agrees to indemnify, defend and hold Collateral Agent (and its
directors, officers, agents and employees) harmless from and against any and all
loss, liability, damage, claim, judgment or expense (including reasonable
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 Collateral Agent’s duties under this
Mortgage, any action or proceeding to foreclose this Mortgage or in or to which
Collateral Agent may be made a party due to the existence of this Mortgage or
the other Transaction Documents or to which action or proceeding Collateral
Agent may become a party for the purpose of protecting the lien of this
Mortgage. All sums paid by Collateral Agent to prosecute or defend
the rights herein set forth shall be deemed a part of the Secured Obligations
and shall be paid by the Mortgagor to Collateral Agent 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 Collateral Agent to
and including the date of payment by the Mortgagor at the Applicable
Rate.
Section
5.16 Collateral Agent as
Agent. Section 10 of the Security Agreement is incorporated by
reference herein as if originally appearing herein, mutatis
mutandis.
Section
5.17 Non-Foreign
Disposition. Notwithstanding any other provision herein to the
contrary, no sale, charter, transfer or other disposition of the Vessel or any
interest therein may be made to any entity not a citizen of the United States
within the meaning of Section 2 of the Shipping Act of 1916, as amended, without
the approval of the Secretary of Transportation of the United
States.
19
IN
WITNESS WHEREOF, the Mortgagor has executed this Mortgage as of the date first
written above.
BELLE OF ORLEANS, L.L.C., a Louisiana limited liability company | |||
|
By:
|
/s/Xxxxxxx Xxxxxxx | |
Name: Xxxxxxx Xxxxxxx | |||
Title: Chief Financial Officer | |||
|
Witness:
|
/s/Xxxxxx Xxxxxxxxxx | |
Printed Name: Xxxxxx Xxxxxxxxxx |
|
Witness:
|
/s/Xxxxxx X. Xxxxxxx | |
Printed Name: Xxxxxx X. Xxxxxxx | |||
/s/Xxxxx X. Xxxxxx | ||||
NOTARY
PUBLIC
|
|
|||
Printed
Name: Xxxxx X. Xxxxxx
|
|
|||
Notary's
number (if any): 130029
|
|
|||
My Commission Expires: 10/20/10 | Affix notary's seal: | |||
Attach
prothonotarial certificate
20