EXHIBIT 4.14
SECOND PREFERRED SHIP MORTGAGE
Made by
HWCC-TUNICA, INC.
In Favor of
HOLLYWOOD CASINO CORPORATION
ON
THE HOLLYWOOD-TUNICA
Dated as of May 19, 1999
HWCC-Tunica, Inc.
Second Preferred Ship Mortgage
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Mortgagor: HWCC-Tunica, Inc.
Two Galleria Tower, Suite 2200
13455 Xxxx Road, LB48
Xxxxxx, Xxxxx 00000
Mortgagor's Interest in the Vessel: 100%
Mortgagee: Hollywood Casino Corporation
Two Galleria Tower, Suite 2200
13455 Xxxx Road, LB48
Xxxxxx, Xxxxx 00000
Mortgagee's Interest in the Vessel: 100%
Amount of Mortgage: $87,045,000.00
Maturity Date: May 1, 2007
THIS SECOND PREFERRED SHIP MORTGAGE, dated as of the 19th day of May, 1999,
(as amended, supplemented or otherwise modified from time to time, the
"Mortgage") is made and given by HWCC-TUNICA, INC., a Texas corporation, (the
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"Mortgagor"), whose address is set forth above, to HOLLYWOOD CASINO CORPORATION,
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a Delaware corporation, whose address is set forth above (the "Mortgagee").
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Hollywood Casino Corporation will assign all of its interests in this Mortgage
to State Street Bank and Trust Company, as Trustee, as security for, among other
things, the Indenture and the Senior Secured Notes referred
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to below. STATE STREET BANK AND TRUST COMPANY, as Trustee is hereinafter
referred to as the "Trustee", and its address is set forth in Section 5.6 below.
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RECITALS
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A. Of even date herewith, Mortgagor has executed an amended and restated
promissory note (as the same may be amended, supplemented, restated or otherwise
modified from time to time, being herein referred to as the "Note") payable to
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the order of Mortgagee, in the original principal amount of $87,045,000.
Mortgagor is entering into this Mortgage to secure, among other things, its
obligations under the Note payable to the order of the Mortgagee. The
Mortgagee, the Mortgagor, HWCC-Shreveport, Inc. and the Trustee have entered
into an Indenture dated as of May 19, 1999 (as the same may from time to time be
amended, supplemented, restated or otherwise modified, the "Indenture"),
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pursuant to which the Mortgagee will issue up to (i) $310,000,000 of its 11 1/4%
Series A and Series B Senior Secured Notes due 2007, and (ii) $50,000,000 of its
Floating Rate Series A and Series B Senior Secured Notes due 2006 (as the same
may be amended, supplemented, restated, exchanged, replaced or otherwise
modified from time to time, the "Senior Secured Notes"). The Mortgagee will
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collaterally assign all of its right, title and interest in and to the Note and
the liens and security interests securing same (including the liens and security
interests granted under this Mortgage) to the Trustee as security for, among
other things the Mortgagee's obligations under the Indenture and the Senior
Secured Notes.
B. The Trustee has requested pursuant to the terms of the Indenture that
Mortgagor execute and deliver this Mortgage, and Mortgagor has agreed to enter
into this Mortgage on the Hollywood-Tunica (Official Number 534006) (the
"Vessel").
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C. Now, therefore, to induce the Trustee to execute the Indenture, in
consideration of the premises and of other valuable consideration, receipt of
which is hereby acknowledged, Mortgagor hereby agrees as follows:
ARTICLE I.
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GRANTING CLAUSE AND DEFINITIONS
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Section 1.1. Granting Clause
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. To secure the full and timely payment of and the full and timely
performance and discharge of the Obligations (as hereinafter defined), the
Mortgagor has granted, conveyed, mortgaged, pledged, assigned, transferred, set
over and confirmed and by these presents does grant, convey, mortgage, pledge,
assign, transfer, set over and confirm unto the Mortgagee, its successors and
assigns, the following:
The whole of the Vessel, duly documented in the name of the Mortgagor under
the laws of the United States, together with all equipment, parts and
accessories integral to the operation of the Vessel as a vessel, including, but
not limited to, all of its boilers, engines, generators, air compressors,
machinery, masts, spars, sails, riggings, boats, anchors, cables, chains,
tackle, tools, pumps and pumping equipment, motors, apparel, furniture, computer
equipment, electronic equipment used in connection with the operation of the
Vessel and belonging to the 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, fittings and equipment, supplies, spare parts, fuel and all other
appurtenances thereunto appertaining or
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belonging, whether now owned or hereafter acquired, whether or not on board said
Vessel, and all extensions, additions, accessions, improvements, renewals,
substitutions, and replacements hereafter made in or to said Vessel or any part
thereof, or in or to any said appurtenances (the term "Vessel" as used herein
being inclusive of all of the foregoing; provided, that the foregoing shall not
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include any property which is not a "vessel" within the meaning of 46 U.S.C. (S)
31322(a); and provided, further, that if any determination is made at any time
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that for any reason this Mortgage does include any property which is not a
"vessel" within the meaning of 46 U.S.C. (S) 31322(c)(i), then such property may
be separately discharged from the Lien of this Mortgage (but not the Lien of any
other security instruments) by the payment by the Mortgagor to the Trustee (for
application to the Senior Secured Notes of .01% of the total amount set forth in
Section 6.1 to be applied in the manner set forth in the Indenture);
TO HAVE AND TO HOLD all and singular the above mortgaged and described
property unto the Mortgagee, its successors and assigns, forever upon the terms
herein set forth;
PROVIDED, HOWEVER, and these presents are on the condition that if the
Obligations are paid and performed in accordance with the terms thereof and this
Mortgage, then these presents and the estates and rights hereunder shall cease,
terminate and be void, otherwise to be and remain in full force and effect.
Section 1.2. Definitions
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. As used in this Mortgage, the terms "Mortgage", "Mortgagor",
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"Mortgagee","Trustee", "Note", "Senior Secured Notes" and "Vessel" shall have
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the meanings assigned to them in the recitals hereto. Any capitalized term used
in this Mortgage and not defined herein shall have the meaning assigned to such
term in the Indenture. As used herein, the following terms shall have the
following meanings:
"Event of Loss" shall have the meaning set forth in Section 2.4 hereof.
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"Event of Default" shall have the meaning set forth in Section 3.1 hereof.
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"Obligations" shall mean (i) the payment when due of indebtedness evidenced
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by the Note, which is in the principal sum not to exceed at any time outstanding
of $87,045,000.00, interest (including post-petition interest) as set forth
therein, and premiums, penalties, and late charges thereon; (ii) all other
indebtedness and other sums (including, without limitation, all expenses,
attorneys' fees, other fees, indemnifications, reimbursements, damages, other
monetary liabilities, and other charges) and obligations that may or shall
become due under the Note, this Mortgage, and the other documents executed as
security for or in connection with the Note; and (iii) any and all renewals,
modifications, amendments, extensions for any period, supplements and
restatements of any of the foregoing.
"Permitted Encumbrances" shall mean the items on Exhibit A hereto.
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Section 1.3. Second Lien
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. Of even date herewith, Mortgagor is executing a certain First
Preferred Ship Mortgage (the "First Mortgage") in favor of the Trustee. The
liens and security interests granted in this Mortgage shall be inferior and
subordinate to the liens and security interests granted in the First Mortgage,
which shall be first priority.
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ARTICLE II.
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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In order to induce the Mortgagee to accept this Mortgage as collateral
security for the Obligations, the Mortgagor represents and warrants to the
Mortgagee and covenants and agrees with the Mortgagee that:
Section 2.1. Legal Existence; Citizenship Authorization
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. The Mortgagor is a corporation duly organized and validly existing under
the laws of the State of Texas; and except as permitted by the Indenture, shall
maintain its corporate existence during the term of this Mortgage; and the
Mortgagor is and will continue to be a citizen of the United States within the
meaning of Section 2 of the Shipping Act of 1916, as amended, and is duly
qualified to engage in the trade in which the Vessel operates. The Mortgagor is
duly authorized to mortgage the Vessel, and all corporate action necessary and
required by law for the execution and delivery of this Mortgage has been duly
and effectively taken by it, and this Mortgage is the valid and enforceable
obligation of the Mortgagor, except that (a) the enforceability of any rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy, (b) enforceability hereof may be
subject to applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and (c) the enforceability hereof may be subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity). All necessary consents and approvals of any
Governmental Authority or any other entity to the entering into and performance
of this Mortgage have been duly obtained or given and the entering into and
performance of this Mortgage does not and will not contravene the terms of or
constitute a default under (with or without giving of notice or lapse of time or
both) any material agreement, instrument or document to which the Mortgagor is a
party or by which it or its properties are bound or affected after giving effect
to the use of the proceeds of the Note.
Section 2.2. Ownership of Vessel; Warranty and Defense of Title
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. Except as set forth on Schedule 2.2 hereto, the Mortgagor is the sole
owner of the whole of the Vessel and is lawfully possessed of the whole of the
Vessel, free from any Lien whatsoever other than the Lien of this Mortgage and
the Liens permitted by Section 2.6 hereof, and the Mortgagor will warrant and
defend the title to and possession of the Vessel and every part thereof for the
benefit of the Mortgagee against the claims and demands of all other persons
whomsoever, subject to the Liens and other matters not prohibited by the
Indenture or this Mortgage.
Section 2.3. Compliance with Laws.
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(a) Documentation. The Vessel is, and during the term of this
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Mortgage shall continue to be, duly and lawfully registered under the laws and
flag of the United States, and the Mortgagor will comply with and satisfy all of
the provisions of the laws of the United States in order that the Vessel shall
continue to be documented pursuant to the laws of the United States as a vessel
of the United States under the United States flag with such endorsements as
shall qualify the Vessel for participation in the trades and services to which
it may be dedicated from time to time.
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(b) Title 46. The Mortgagor will, at its expense and at no cost
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to the Mortgagee, comply with and satisfy all the provisions of Chapters 301 and
313 of Title 46 of the United States Code, as amended, in order to establish,
record and maintain this Mortgage as a second preferred ship mortgage thereunder
upon the Vessel. This Mortgage is in substantial compliance with the conditions
and requirements contained in Section 31321 of Title 46 of the United States
Code.
(c) Laws, Treaties and Conventions. The Vessel shall, and the
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Mortgagor covenants that it will in the operation of the Vessel, at all times
comply in all material respects with all applicable laws, treaties and
conventions and rules and regulations issued thereunder, and shall have on board
as and when required thereby valid certificates showing compliance therewith,
except when (i) the use or title of the Vessel has been taken. requisitioned or
chartered by any Governmental Authority, (ii) there has been actual or
constructive total loss or an agreed or compromised total loss of the Vessel, or
damage to the Vessel to the extent, determined in the good faith opinion of the
Mortgagor, as would make repair thereof uneconomical, or (iii) the Vessel has
been laid up and removed from service and the Mortgagor has taken adequate
precautions for the preservation and maintenance of the Vessel.
Section 2.4. Operation of Vessel
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. The Mortgagor will not (except during any period when the use or title
to the Vessel has been taken, requisitioned or chartered by any Governmental
Authority) cause or permit the Vessel to be operated in any manner contrary to
applicable law or regulation, will not abandon the Vessel in any foreign port
(unless an Event of Loss (as hereinafter defined) has occurred as to the Vessel
or the safety or welfare of the Mortgagor's employees on the Vessel is
endangered), will not engage in any unlawful trade, violate any law or carry any
cargo that will 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 existing laws and regulations of the
United States of America. Mortgagor shall keep the operation of the Vessel
within the permitted navigational limits set forth in the trading warranties of
the policies of insurance covering the Vessel and in any case will not operate
the Vessel, or permit the Vessel to be operated, in any area where such
insurance would not be fully applicable and enforceable with respect to the
Vessel and its operation.
"Event of Loss" shall mean any one of the following events: (i) actual
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total loss or destruction of the Vessel or any accident, occurrence or event
resulting in a constructive total loss or an agreed or compromised total loss of
the Vessel; or (ii) substantial damage to the Vessel, the repair of which is
uneconomical, including, but not limited to, any event pursuant to which
insurance proceeds are available which are not applied to repair the Vessel or
any other event resulting for any reason whatsoever in the Vessel being
permanently rendered unfit for normal use; or (iii) the condemnation,
confiscation, acquisition, seizure, detention, forfeiture, purchase or other
taking of title to or use of the Vessel (unless in the case of a requisition,
seizure, detention, or forfeiture, such action is revoked within ninety (90)
days) except the requisition of the use of the Vessel by any United States'
Governmental Authority on a basis not involving requisition of title to or
seizure or forfeiture of the Vessel.
Section 2.5. Claims, Taxes, Fees, etc.
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The Mortgagor will pay and discharge or cause to be paid and discharged
prior to delinquency, all claims against, and fees, taxes, assessments,
governmental charges, fines and
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penalties imposed on, the Vessel, its cargoes or any income therefrom; provided
that nothing in this Section 2.5 shall require the Mortgagor to pay any such
claim, fee, tax, assessment, governmental charge, fine or penalty so long as the
validity thereof shall be contested by it in good faith and by appropriate
proceedings, and, provided, further, that such contest shall not subject the
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Vessel, or any part thereof, to forfeiture or loss.
Section 2.6. Liens
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. Neither the Mortgagor, any charterer, the master of the Vessel nor any
other person has or shall have any right, power or authority to create, incur or
permit to be placed or imposed or continued upon the Vessel, any Lien whatsoever
other than the Lien of this Mortgage, Permitted Encumbrances and the following:
(i) Liens for wages of the crew (including wages of a master to the
extent provided by 46 U.S.C. App. (S)(S) 10301-10321, inclusive ("Master's
Wages")), general average and salvage (including contract salvage) which shall
not have been due and payable for forty-five (45) days after termination of a
voyage or which shall then be contested by the Mortgagor in good faith;
(ii) Liens for wages of the crew (including Master's Wages) and
salvage (including contract salvage) which are either unclaimed or covered by
insurance;
(iii) Liens incident to current operations (except for wages of the
crew including Master's Wages and salvage) or liens covered by insurance and any
deductible applicable thereto;
(iv) Liens for repairs; and
(v) Liens disclosed on Schedule 2.2 hereto;
provided that the Liens stated to be permitted by the foregoing
subparagraphs (i) through (iv) shall, unless they constitute a Lien for damage
arising out of tort, for wages of a stevedore when employed directly by the
Mortgagor, master, ship's husband, or agent, for wages of the crew (including
Master's Wages) for general average, or for salvage (including contract
salvage), be permitted only to the extent such Liens are either accrued (but not
yet due) or are subordinate to the Lien of this Mortgage. Nothing contained in
this Section 2.6 constitutes a waiver by the Mortgagee of the Mortgagee's
preferred status pursuant to the provisions of Chapters 301 and 313 of Title 46
of the United States Code. If any such Lien is placed on the Vessel which is not
subordinate to the Lien of this Mortgage, Mortgagor will promptly after becoming
aware of such Lien notify the Mortgagee.
Section 2.7. Notice of Mortgage
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. The Mortgagor will at all times carry on board the Vessel (with the
ship's papers) a certified copy of this Mortgage and any amendments and
supplements hereto and any assignments hereof, and will exhibit or cause to be
exhibited the same to any person having business with the Vessel which might
give rise to a Lien upon the Vessel or to the sale, conveyance, mortgage or
lease thereof and, on demand, to any representative of the Mortgagee. The
Mortgagor will also place and keep prominently displayed on the Vessel a framed
printed notice in plain type of such size that the paragraph of reading matter
shall cover a space of not
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less than six inches wide by nine inches high (or such other dimensions as may
be required by law) reading as follows:
"NOTICE OF MORTGAGE
This Vessel is owned by HWCC-Tunica, Inc. and is subject to
a First Preferred Ship Mortgage in favor of State Street
Bank and Trust Company, as Trustee, as Mortgagee, and a
Second Preferred Ship Mortgage in favor of Hollywood Casino
Corporation, as Mortgagee, which Second Preferred Ship
Mortgage has been assigned by Hollywood Casino Corporation
to State Street Bank and Trust Company, as Trustee, under
the authority of Chapter 301 and Chapter 313 of Title 46 of
the United States Code, as amended, a certified copy of
which Mortgages are kept with this Vessel's papers. Under
the terms of said Mortgages neither the owner, any
charterer, the master of this Vessel nor any other person
has any right, power or authority to create, incur or permit
to be placed or imposed upon this Vessel any lien whatsoever
other than the lien of said Mortgages, liens for wages,
general average or salvage, and certain other liens
permitted by the provisions of said Mortgages."
Section 2.8. Libel or Attachment
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. If a libel is filed against the Vessel or if the Vessel shall be
attached, levied upon or taken into custody by virtue of any proceeding in any
court or tribunal, the Mortgagor will promptly notify the Mortgagee thereof by
telegram, cable or facsimile, confirmed by letter addressed to the Mortgagee,
and within fifteen (15) days after any such libel, levy, attachment or taking
into custody, Mortgagor will use its best efforts to cause the Vessel to be
released and will promptly notify the Mortgagee of such release in the manner
aforesaid. In the event that the Vessel shall not be released within such
fifteen (15) day period, the Mortgagor does hereby authorize and empower the
Mortgagee, in the name of the Mortgagor, or its successor or assigns, to apply
for and receive possession of and to take possession of the Vessel with all the
rights and powers that the Mortgagor, or its successors or assigns, might have,
possess or exercise in any such event; and this power of attorney shall be
irrevocable and may be exercised not only by the Mortgagee hereinabove named but
also by any one such appointee or the appointees of the Mortgagee, with full
power of substitution, to the same extent as if the said appointee or appointees
had been named as one of the attorneys above named by express designation.
Section 2.9. Maintenance of Vessel
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. Except as to such period as (i) the use or title of the Vessel has been
taken, requisitioned or chartered by a Governmental Authority, (ii) there has
been actual or constructive total loss or an agreed or compromised total loss of
the Vessel, or damage to the Vessel to the extent, determined in the good faith
opinion of the Mortgagor, as would make repair thereof uneconomic, or (iii) the
Vessel has been laid up and removed from service and the Mortgagor has taken
adequate precautions for the preservation and maintenance of the Vessel, the
Mortgagor will, at all times and without cost or expense to the Mortgagee,
maintain and preserve, or cause to be maintained and preserved, the Vessel in
good running order and repair, so that the Vessel shall be tight, staunch,
strong and well and sufficiently tackled, appareled,
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furnished, equipped and in every respect seaworthy, and in compliance with all
applicable United States Coast Guard Regulations, and in as good order and
operating condition for Mortgagor's gaming operations as when made subject to
the Lien of this Mortgage, ordinary wear and tear excepted; provided, however,
that nothing in this Section shall prevent Mortgagor from discontinuing any
operation or maintenance of any portion of the Vessel, or disposing thereof, if
such discontinuance or disposal is (A) in the judgment of the Board of Directors
of the Mortgagor desirable in the conduct of business of the Mortgagor, and (B)
not disadvantageous in any material respect to the Holders, subject in both
instances to the terms of the Indenture.
Section 2.10. Inspection
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. Weather permitting, the Mortgagor will at all reasonable times, upon
reasonable notice and at no cost or risk to the Mortgagor, afford the Mortgagee
or its authorized representatives full and complete access to the Vessel for the
purpose of inspecting or surveying the same and its papers.
Section 2.11. Sale or Other Disposition of Vessel
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. Except as allowed in the Indenture, the Mortgagor will not sell,
mortgage, bareboat charter, transfer or in any other way dispose of all or any
part of the Vessel without the prior written consent of the Mortgagee.
Section 2.12. Notice of Loss, Requisition or Damage
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. In the event of actual loss of the Vessel or any casualty, accident or
damage to the Vessel involving or estimated in good faith to involve an amount
in excess of $250,000, the Mortgagor will forthwith give written notice thereof
(containing full particulars) to the Mortgagee.
Section 2.13. Insurance.
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(a) All Risk. The Mortgagor shall, at its own expense, keep the
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Vessel insured against all such risks that are insured against by prudent owners
of vessels and equipment similar to the Vessel.
(b) Liability; Workers' Compensation. The Mortgagor shall
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maintain at all times, to the extent required by applicable law, such worker's
compensation, employer's liability, and longshoreman and harbor worker's
insurance including a Maritime Coverage Endorsement and pollution insurance. The
Mortgagor shall also, at its own expense, maintain public liability insurance,
together with umbrella liability coverage as insured against by prudent owners
of vessels and equipment similar to the Vessel. Such policies shall provide that
any loss under such insurance may be paid directly to the entity to whom any
liability covered by such policies has been incurred.
(c) Payment Provisions. All payments made under policies of
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insurance maintained under this Section shall be applied as set forth in Section
4.11 of the Indenture.
(d) Constructive Total Loss. In the case of an Event of Loss
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which is a constructive total loss of the Vessel, the Mortgagee shall have the
right (but only with prior written consent of the Mortgagor unless an Event of
Default has occurred and is continuing) to claim for a constructive total loss
of the Vessel, and if both (i) such claim is accepted by all
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underwriters under all policies then in force as to the Vessel and (ii) payment
in full is made in cash under such policies, then the Mortgagee shall have the
right to abandon the Vessel to the underwriters under such policies, free from
the Lien of this Mortgage.
(e) Agreed Total Loss. The Mortgagee shall not have the right to
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enter into an agreement or compromise providing for an agreed or compromised
total loss of the Vessel without the prior consent of the Mortgagor unless an
Event of Default has occurred and is continuing. If the Mortgagor shall have
given its prior consent thereto, or an Event of Default has occurred and is
continuing, the Mortgagee shall have the right in its discretion to enter into
an agreement or compromise providing for an agreed or compromised total loss of
the Vessel, provided the same is agreed to by underwriters under all applicable
policies.
(f) Insurers. All insurance required under this Section 2.13 shall be
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placed and kept with the United States Government, or such insurance companies,
underwriters' associations, clubs or underwriting funds as are reputable and
generally recognized within the industry.
(g) Taking by United States. During the continuance of a taking,
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requisition or charter of the use of the Vessel by any governmental body of the
United States of America (including, without limitation, the state of
Mississippi), the provisions of this Section 2.13 shall be deemed to have been
complied with in all respects as to the Vessel if the United States Government
or any governmental body (including, without limitation, the state of
Mississippi) shall have agreed (i) to reimburse the Mortgagee and the Mortgagor
for loss or damage resulting from the risks indicated in paragraphs (a) and (b)
of this Section 2.13, or (ii) that the Mortgagee and the Mortgagor shall be
entitled to just compensation therefor. In addition, the provisions of this
Section 2.13 shall be deemed to have been complied with in all respects during
any period after title to the Vessel shall have been taken or requisitioned by
the United States Government or governmental body (including, without
limitation, the state of Mississippi) or there shall have been an actual or
constructive total loss or an agreed or compromised total loss of the Vessel.
In the event of any taking, requisition, charter or loss of the Vessel
contemplated by this paragraph (g), the Mortgagor shall promptly furnish to the
Mortgagee a sworn certificate of an officer of the Mortgagor stating that such
taking, requisition, charter or loss has occurred and, if there shall have been
a taking, requisition or charter of the use of the Vessel, that the United
States Government or governmental body (including, without limitation, the state
of Mississippi) has agreed (i) to reimburse the Mortgagor for loss or damage
resulting from the risks indicated in the above-mentioned paragraphs (a) and (b)
or (ii) that the Mortgagor or the Mortgagee, as the case may be, is entitled to
just compensation therefor.
(h) Compliance. The Mortgagor shall not do any act, nor voluntarily
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suffer nor permit any act to be done, whereby any insurance required by this
Section 2.13 shall or may be suspended, impaired or defeated, or suffer or
permit the Vessel to engage in any voyage, to engage in any activity or to carry
any cargo not permitted under the policies of insurance then in effect without
first procuring reasonably comparable insurance for such voyage, activity or the
carriage of such cargo.
(i) Assignment of Insurance to Surety. In the event that any claim or
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Lien is asserted against the Vessel for loss, damage or expense which is covered
by insurance hereunder and it is necessary for the Mortgagor to obtain a bond or
supply other security to prevent arrest of the Vessel or to obtain the release
of the Vessel from arrest on account of said claim or Lien, so long as no Event
of Default has occurred and is continuing, the Mortgagee, upon the written
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request of the Mortgagor, shall assign all or any part of its right, title and
interest in and to said insurance covering such loss, damage or expense. to any
entity executing a surety or guaranty bond or other agreement to save or release
the Vessel from such arrest as collateral security to indemnify against
liability under said bond or other agreement.
(j) Policies. The Mortgagor, upon execution of this Mortgage, shall
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deliver to the Mortgagee true copies of the original policies, certified to the
satisfaction of the Mortgagee, evidencing the insurance maintained under this
Section 2.13. If the Mortgagor executes any new or renewal policies of
insurance under this Section 2.13, the Mortgagor, upon the request of Mortgagee,
will promptly deliver to the Mortgagee true copies of such policies.
(k) Oil Pollution. The Mortgagor shall on behalf and for the benefit
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of itself and the Mortgagee (i) when required by law, maintain a Certificate of
Financial Responsibility (Oil Pollution) issued by the United States Coast Guard
pursuant to the Oil Pollution Act of 1990, as amended, and (ii) maintain such
additional coverage for the Vessel in respect of oil pollution liability as may
be customary among prudent owners of similar vessels from time to time.
(l) Obligation to Collect. Mortgagor shall, at no cost or expense to
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the Mortgagee, have the duty and responsibility to make all proofs of loss and
take any and all other steps necessary to effect collections from underwriters
for any loss under any insurance on or in respect of the Vessel or the operation
thereof; provided that Mortgagor shall have such duty only to the extent that
such conduct would be taken by a prudent owner.
ARTICLE III.
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REMEDIES; APPLICATION OF PROCEEDS
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Section 3.1. Sale, Etc.
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If an Event of Default shall have occurred and be continuing which has
resulted in the Mortgagee accelerating the maturity of the Obligations, the
Mortgagee may, to the fullest extent permitted by and in accordance with
applicable law:
(a) exercise all the rights and remedies in foreclosure and otherwise
given to mortgagees by the provisions of the Chapter 313 of Title 46 of the
United States Code, as amended, or by the applicable laws of any other
applicable jurisdiction;
(b) bring suit at law, in equity or in admiralty or initiate and
prosecute such other judicial, extrajudicial, or administrative proceedings as
it may consider appropriate to recover any and all sums due, or declared due, in
respect of the Obligations, with the right to enforce payment of said sums
against any assets of the Mortgagor, whether they are covered by this Mortgage
or otherwise;
(c) take possession of the Vessel, with or without legal proceedings,
at any place where it may be found, and the Mortgagor or any person in
possession of the Vessel, forthwith upon request by the Mortgagee, as mortgage
creditor, shall deliver possession to the Mortgagee on demand of the Mortgagee,
and the Mortgagee shall have the right, subject to applicable law, without being
responsible for loss or damage to lay up, hold, charter, lease, operate or
otherwise use the Vessel for such period and under such conditions as it may
deem most expedient for its interest, accounting only for net profits, if any,
arising from such use and
10
charging against all receipts from such use or from the sale of the Vessel by
court proceedings or pursuant to subsection (d) below, all costs, expenses,
charges, damages or losses by reason of such use; and if at any time the
Mortgagee shall avail itself of the right herein given to it to take the Vessel
and shall take it, the Mortgagee shall have the right to dock the Vessel at any
dock, pier or other premises owned or leased by the Mortgagor without charge, or
at any other place at the cost and expense of the Mortgagor;
(d) sell the Vessel at public or private sale, by sealed bids or
otherwise, on such terms and conditions as the Mortgagee deems best, free of any
claim, commitment or encumbrance, regardless of the nature thereof, in favor of
the Mortgagor and, except as provided by law, any other person, upon advance
notice of ten (10) consecutive days published in any newspaper authorized to
publish legal notices of that kind in the port of registry and the place of sale
of the Vessel and by sending notice of such sale at least fourteen (14) days
prior to the date fixed for such sale, by telegraph, cable or telex, confirmed
by mail, to the Mortgagor. In the event that the Vessel shall be offered for
sale by private sale, no newspaper publication of notice shall be required, nor
notice of adjournment of sale. Sale may be held at such place and at such time
as the Mortgagee by notice may have specified, or may be adjourned by the
Mortgagee from time to time by announcement at the time and place appointed for
such sale or for such adjourned sale, and without further notice or publication
the Mortgagee may make any such sale at the time and place to which the same
shall be so adjourned; and any sale may be conducted without bringing the Vessel
to the place designated for such sale and in such manner as the Mortgagee may
deem to be for its best advantage, and the Mortgagee may become the purchaser at
any public sale, and shall have the right to credit on the purchase price any
and all sums of money due hereunder.
As used in this Mortgage, "Event of Default" shall mean the occurrence of
any Event of Default under the Indenture.
Section 3.2. Finality of Sale
----------------
. A sale of the Vessel made in pursuance of this Mortgage, whether under
the power of sale hereby granted or any judicial proceedings, shall operate to
divest all right, title and interest of any nature whatsoever of the Mortgagor
therein and thereto, and shall bar 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 propriety of the sale, or as to application of the proceeds thereof.
Section 3.3. Powers and Rights of Mortgagee Upon Notice of Default
-----------------------------------------------------
. During the occurrence and continuance of an Event of Default and after
the acceleration of the Senior Secured Notes, Mortgagee shall have the following
powers and rights:
(a) Sale. The Mortgagor does hereby irrevocably appoint the
----
Mortgagee and its successors and assigns the true and lawful attorney of the
Mortgagor, in its name and stead, for the purpose of Sections 3.1 and 3.2, to
make all necessary transfers of the Vessel, and for that purpose the Mortgagee
shall execute all necessary instruments of assignment and transfer (including
bills of sale), the Mortgagor hereby ratifying and confirming all that its said
attorney shall lawfully do by virtue hereof. Nevertheless, the Mortgagor shall,
if so requested by the Mortgagee, ratify and confirm any sale of the Vessel by
executing and delivering to the
11
purchaser thereof such proper bills of sale, conveyances, instruments of
transfer and releases as may be designated in such request.
(b) Revenues and Proceeds of Vessel; Prior Liens.
--------------------------------------------
(i) The Mortgagee is hereby irrevocably appointed attorney-in-
fact of the Mortgagor, with the power, among other things in the name of the
Mortgagor to demand, collect, receive, compromise and xxx for, so far as may be
permitted by law, all freights, hire, earnings, issues, revenues, income and
profits of the Vessel, and all amounts due from underwriters under any insurance
thereon as payment of losses or as return premiums or otherwise, salvage awards
and recoveries, recoveries in general average or otherwise, 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, and to make, give and execute in the name of
the Mortgagor acquittances, receipts, releases or other discharges for the same,
whether under seal or otherwise, and to endorse and accept in the name of the
Mortgagor all checks, notes, drafts, warrants, agreements and all other
instruments in writing with respect to the foregoing, the Mortgagor hereby
confirming and ratifying the same.
(ii) The Mortgagee is hereby irrevocably authorized to pay or
furnish indemnity in the proper amounts against any Liens which have or may (in
the opinion of the Mortgagee) have priority over the Lien of this Mortgage and
which are not permitted under this Mortgage.
(c) Additional Rights. The Mortgagor covenants and agrees that in
-----------------
addition to any and all other rights, powers and remedies elsewhere in this
Mortgage granted to and conferred upon the Mortgagee, the Mortgagee in any suit
to enforce any of its rights, powers or remedies shall be entitled as a matter
of right and not as a matter of discretion (i) to seek the appointment of a
receiver or receivers of the Vessel and any receiver or receivers so appointed
shall have full right and power to use and operate the Vessel as shall be
ordered by the federal court, and (ii) to a decree ordering and directing the
sale and disposal of the Vessel, and the Mortgagee may become the purchaser at
such sale and shall have the right to credit against the purchase price any and
all sums of money due hereunder.
Section 3.4. Restoration of Position
-----------------------
. In case the Mortgagee shall have proceeded to enforce any right, power
or remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Mortgagee, then and in every such case the
Mortgagor and the Mortgagee shall, subject to any determination in such
proceeding, be restored to their former positions and rights hereunder with
respect to the property subject or intended to be subject to this Mortgage, and
all rights, remedies and powers of the Mortgagee shall, subject to any
determination in such proceeding, continue as if no such proceedings had been
taken.
Section 3.5. Application of Proceeds
-----------------------
. The proceeds of any sale and net earnings derived from the operation,
use, charter, or any other employment of the Vessel by the Mortgagee, as
mortgage creditor, and within any of the powers and authority above given, as
well as the proceeds of any judgment which the Mortgagee may obtain by reason of
the breach of failure to perform any of the terms of this
12
Mortgage, as well as the proceeds of any claim for damage received by the
Mortgagee while exercising the powers and the authorities above given shall be
applied as follows:
(i) to the payment of all charges and expenses, including the
costs of any public or private sale or sales, the cost of replevying or taking
possession of the Vessel which may be incurred or paid out by the Mortgagee, as
mortgage creditor. and the expenses and reasonable administrator and attorneys'
fees incurred on foreclosure or in the protection of the rights and interests of
the Mortgagee founded upon this Mortgage;
(ii) to pay or to furnish indemnity in the proper amounts
against any Liens which have or may (in the opinion of the Mortgagee) have
priority over the Lien of this Mortgage and which are not Liens permitted under
this Mortgage;
(iii) to reduce or pay in full the Obligations; and
(iv) to the payment of any surplus thereafter remaining to the
Mortgagor or to whomsoever shall be entitled thereto.
Section 3.6. No Transfer in Violation of Shipping Act
----------------------------------------
. 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. Furthermore, the Vessel shall
not be operated by the Trustee without the approval of the Secretary of
Transportation.
Section 3.7. Gaming Authority
----------------
. Each of the provisions of this Mortgage is subject to, and shall be
enforced in compliance with, the requirements of any applicable Gaming
Authority.
Section 3.8. Collateral Assignment of Note and Mortgage
------------------------------------------
. The Note and this Mortgage are contemporaneously herewith being
collaterally assigned to State Street Bank and Trust Company, as Trustee
(together with all successors in such capacity, the "Trustee') under the
Indenture. Mortgagor hereby acknowledges and consents to such Collateral
assignment and agrees that, so long as such collateral assignment shall remain
in effect, the Trustee shall be, for all purposes hereunder, the Mortgagee under
this Mortgage.
ARTICLE IV.
-----------
GENERAL POWERS OF MORTGAGEE
---------------------------
Section 4.1. General Powers of Mortgagee.
---------------------------
(a) Arrest or Detention of Vessel. In the event that the Vessel
-----------------------------
shall be arrested or detained by a marshal or other officer of any court of law,
equity or admiralty jurisdiction in any country or nation of the world or by any
government or other entity and shall not be released from arrest or detention
within thirty (30) days from the date of arrest or detention, the Mortgagor does
hereby authorize and empower the Mortgagee, in the name of the Mortgagor, or its
successors or assigns, to apply for and receive possession of and to take
13
possession of the Vessel with all the rights and powers that the Mortgagor, or
its successors or assigns, might have, possess or exercise in any such event;
and this power of attorney shall be irrevocable and may be exercised not only by
the Mortgagee but also by its appointee or appointees, with full power of
substitution, to the same extent as if the said appointee or appointees had been
named as the attorney above named by express designation.
(b) Suits. The Mortgagor also authorizes and empowers the Mortgagee
-----
or its appointees or any of them to appear in the name of the Mortgagor, its
successors or assigns, in any court of any country or nation of the world where
a suit is pending against the Vessel because of or on account of any alleged
Lien against the Vessel from which the Vessel has not been released in
accordance with the terms of this Mortgage and to take such proceedings as to it
may seem proper towards the defense of such suit and the discharge of such Lien.
(c) Reimbursement of Expenses. If Mortgagor fails to perform any
-------------------------
obligation or covenant under this Mortgage, Mortgagee shall have the right, but
not the obligation, to perform or take such actions to comply with the terms of
this Mortgage, and all amounts reasonably expended in connection with such
conduct shall be a demand obligation of Mortgagor owing to Mortgagee at the
post-default rate of interest specified in the Senior Secured Notes and shall be
secured by the Lien of this Mortgage and the other Collateral Documents.
ARTICLE V.
----------
SUNDRY PROVISIONS
-----------------
Section 5.1. Defeasance
----------
. If the Obligations shall have been satisfied and discharged then this
Mortgage and the estate and rights hereunder shall cease, determine, and become
null and void; and the Mortgagee, on the request of the Mortgagor and at the
Mortgagor's cost and expense, shall forthwith cause satisfaction and discharge
of this Mortgage to be entered upon its and other appropriate records and shall
execute and deliver to the Mortgagor such instruments as may be necessary in the
Mortgagor's reasonable opinion to duly acknowledge the satisfaction and
discharge of this Mortgage.
Section 5.2. Right of Peaceful Enjoyment
---------------------------
. During the term of this Mortgage and so long as no Event of Default
shall have occurred and be continuing, the Mortgagor shall have full and
peaceful enjoyment, use, right to possession and control of the Vessel.
Section 5.3. Cumulative Remedies, No Waiver
------------------------------
. Each and every power and remedy herein given to the Mortgagee shall be
cumulative and shall be in addition to every other power and remedy herein or
now or hereafter existing at law, in equity, in admiralty, or by statute, and
each and every power and remedy whether herein given or otherwise existing may
be exercised from time to time and as often and in such order as may be deemed
expedient by the Mortgagee, and the exercise or the beginning of the exercise of
any power or remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any other power or remedy. No course of
dealing on the part of the Mortgagee, its officers, employees, consultants or
agents, nor any delay or omission by the
14
Mortgagee in the exercise of any right or power or in the pursuance of any
remedy shall operate as a waiver of any such right, power or remedy.
Section 5.4. Further Assurances
------------------
. In the event that this Mortgage, or any provisions hereof, shall be
deemed invalid in whole or in part by reason of any present or future law or any
decision of any court having jurisdiction, or if the documents at any time held
by the Mortgagee shall be deemed by the Mortgagee for any reason insufficient to
carry out the rights and powers granted to the Mortgagee herein, then, from time
to time, the Mortgagor will do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged and delivered such other and further assurances and
documents as in the opinion of the Mortgagee may reasonably be required in order
to more effectively subject the Vessel to the lien of this Mortgage or more
effectively subject the Vessel to the performance of the terms and provisions of
this Mortgage, or to enable this Mortgage to continuously enjoy the status of a
preferred ship mortgage.
Section 5.5. Survival of Agreements
----------------------
. All representations, warranties, covenants and agreements herein
contained or made in writing in connection with this Mortgage shall survive the
execution of this Mortgage and shall continue in full force and effect until all
sums secured hereby shall have been paid in full, and the same shall bind and
inure to the benefit of the respective successors and assigns of the Mortgagor
and the Mortgagee.
Section 5.6. Notices
-------
. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telex or facsimile
transmission), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when actually delivered or, in the case of telex
notice, when sent, answerback received, or in the case of facsimile
transmission, when received and telephonically confirmed, addressed as follows
or to such other address as may be hereafter notified by the respective parties
hereto or any assignee thereof or successor thereto:
Mortgagor:
HWCC-Tunica, Inc.
Two Galleria Tower, Suite 2200
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
Telecopier No. (000) 000-0000
Mortgagee:
00
Xxxxxxxxx Xxxxxx Xxxxxxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX00
Xxxxxx, Xxxxx 00000
Trustee:
State Street Bank and Trust Company
Corporate Trust Administration
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No. (000) 000-0000
Section 5.7. Counterparts
------------
. This instrument may be executed in any number of counterparts, and each
of such counterparts shall for all purposes be deemed to be an original.
Section 5.8. Section Headings
----------------
. The section headings used in this Mortgage are for convenience of
reference only and are not to affect the construction of or be taken into
consideration in interpreting this Mortgage.
Section 5.9. GOVERNING LAW
-------------
. THIS MORTGAGE, AND ALL OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, SHALL BE GOVERNED BY
XXXXX 00, XXXXXX XXXXXX CODE, CHAPTERS 301 AND 313 AND THE FEDERAL MARITIME LAWS
OF THE UNITED STATES OF AMERICA AND, ONLY TO THE EXTENT NOT ADDRESSED THEREBY,
BY THE LAWS OF THE STATE OF NEW YORK.
Section 5.10. Amendments and Waivers
----------------------
. None of the terms or provisions of this Mortgage may be waived, amended,
supplemented or otherwise modified except if made or given in compliance with
the terms and provisions of the Indenture.
Section 5.11. Termination
-----------
16
. The grant of the Liens hereunder and all of Mortgagee's rights, powers
and remedies in connection therewith, shall unless otherwise provided in the
Indenture or this Mortgage, remain in full force and effect until payment in
full of (A) the Senior Secured Notes under the terms of the Indenture and (B)
all Obligations then due and owing under the Indenture, the Senior Secured Notes
and the Collateral Documents; provided, however, that after receipt from the
-------- -------
Mortgagor by the Trustee of a request for a release of the Vessel permitted
under the Indenture upon the sale, transfer, assignment, exchange or other
disposition of the Vessel not prohibited by the Indenture or otherwise (and upon
receipt by the Trustee of all proceeds of such sale, transfer, assignment,
exchange or other disposition to the extent required to be remitted to the
Trustee under the Indenture), the Vessel shall be released from the Lien and
security interest created hereunder in accordance with the provisions of the
Indenture and no longer be subject to the Liens granted herein. Upon the payment
in full of (A) the Senior Secured Notes under the terms of the Indenture and (B)
all Obligations then due and owing under the Indenture and the Collateral
Documents, the Mortgagor shall be entitled to the return, upon its request and
at its expense, of the Vessel.
Upon any termination of this Mortgage or release of the Vessel as permitted
by the Indenture, the Mortgagee will, at the expense of the Mortgagor, execute
and deliver to the Mortgagor such documents and take such other actions as the
Mortgagor shall reasonably request to evidence the termination of this Mortgage
or the release of the Vessel, as the case may be. Any such action taken by the
Mortgagee shall be without warranty by or recourse to the Trustee, except as to
the absence of any prior assignments by the Mortgagee of its interests in the
Vessel, and shall be at the expense of the Mortgagor. The Mortgagee may
conclusively rely on any certificate delivered to it by the Mortgagor stating
that the execution of such documents and release of the Vessel is in accordance
with and permitted by the terms of the Indenture and this Mortgage.
Section 5.12. Indenture
---------
. This Mortgage is issued pursuant to the terms, conditions and provisions
of the Indenture.
Section 5.13. Rights of Holders
-----------------
. No Holder shall have any independent rights hereunder other than those
rights granted to individual Holders pursuant to Section 6.07 of the Indenture;
provided that nothing in this Section 5.13 shall limit any rights granted to the
--------
Trustee under the Senior Secured Notes, the Indenture or the Collateral
Documents.
Section 5.14. No Personal Liability of Directors
----------------------------------
. Officers, Employees and Stockholders. No past, present or future
director, officer, employee, incorporator or stockholder of the Mortgagor as
such, or the holder of any of the Senior Secured Notes, or any successor Person,
as such, shall have any liability for any obligations of the Mortgagor under
this Mortgage or for any claim based on, in respect of, or by reason of, such
obligations or their creation.
ARTICLE VI.
-----------
AMOUNT OF MORTGAGE; RECORDATION
-------------------------------
Section 6.1. Recordation
-----------
17
. For the purpose of this Mortgage and the recordation of this Mortgage on
the documents of the Vessel as required by Chapter 313 of Title 46 of the United
States Code, as amended, the total amount of this Mortgage is $87,045,000.00
plus interest and performance of mortgage covenants. The Vessel subject to this
Mortgage is identified on Schedule 6.1 hereto. The Mortgagor holds an interest
of 100% in the Vessel and 100% of such interest is subject to this Mortgage. The
addresses of the parties are:
Mortgagor: HWCC-Tunica, Inc.
Two Galleria Tower, Suite 2200
13455 Xxxx Road, LB48
Xxxxxx, Xxxxx 00000
Mortgagee: Hollywood Casino Corporation
Two Galleria Tower, Suite 2200
00000 Xxxx Xxxx, XX00
Xxxxxx, Xxxxx 00000
Trustee: State Street Bank and Trust Company
Corporate Trust Administration
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No. (000) 000-0000
Although it is not intended that this Mortgage include any property other
than the whole of the Vessel named on Schedule 6.1 hereto, including earned
freights, if any determination is made at any time that for any reason this
Mortgage does include any property other than a "vessel" within the meaning of
46 U.S.C. (S) 31322(c)(i), then such property may be separately discharged from
the lien of this Mortgage (but not the lien of any other security instruments)
by the payment of .01% of the said total amount.
[Signature page follows]
18
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly
executed as of the day and year first above written.
HWCC-TUNICA, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Xxxxxxx X. Xxxxx
Executive Vice President
19
THE STATE OF ILLINOIS)
)
COUNTY OF XXXX )
THIS INSTRUMENT was acknowledged before me on May 19th, 1999, by Xxxxxxx
X. Xxxxx, Executive Vice President of HWCC-TUNICA, a Texas corporation, on
behalf of such corporation, and after having first been duly authorized by said
corporation to do so.
/s/ Xxxxx Xxxxx
----------------
Notary Public in and for
the State of Illinois
Printed Name of Notary: Xxxxx Xxxxx
My Commission Expires: May 15, 2002
20
SCHEDULE 2.2
------------
Other Liens
-----------
Lien evidenced by the First Preferred Ship Mortgage dated May 19, 1999 by
Mortgagor in favor of the Trustee.
21
SCHEDULE 6.1
------------
Description of Vessel
---------------------
Name Official Number
---- ---------------
Xxxxxxxxx Xxxxxx 000000
22
EXHIBIT A
---------
"Permitted Encumbrances"
----------------------
1. Liens on the assets of the Company and any Guarantor created by the
Indenture and the Collateral Documents securing the Notes and the Note
Guarantees;
2. Liens in favor of the Company or the Guarantors;
3. Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; provided, however, that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;
4. Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that such Liens
were in existence prior to the contemplation of such acquisition;
5. Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business;
6. Liens to secure Indebtedness permitted by clause (a) of Section 4.09
of the Indenture covering only inventory and accounts receivable;
7. Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (d) of the second paragraph of Section 4.09 of the Indenture
covering only the assets acquired with such Indebtedness;
8. Liens of record on the date of the Indenture;
9. Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, provided that any
reserve or other appropriate provisions as shall be required in conformity with
GAAP shall have been made therefor;
10. Liens arising from UCC financing statements regarding property leased
by the Company or any of its Restricted Subsidiaries;
11. Liens of carriers, warehousemen, mechanics, landlords, materialmen,
repairmen or other like Liens arising by operation of law or in the ordinary
course of business and consistent with industry practices and Liens on deposits
made to obtain the release of such Liens if:
(a) the underlying Obligations are not overdue for a period of more than
60 days, or
(b) such Liens are being contested in good faith and by appropriate
proceedings by the Company or applicable Restricted Subsidiaries and adequate
reserves with respect thereto are maintained on the books of the Company in
accordance with GAAP, and
(c) the Company or applicable Restricted Subsidiaries is/are in compliance
with the terms of the security documents applicable to such Liens;
12. A Lien on a vessel to secure FF&E Financing or Capital Lease
Obligations in accordance with Section 4.09(d) of the Indenture where (a) the
creditor under such FF&E Financing or Capital Lease Obligations agrees to
release such Lien upon satisfaction of the Obligations under such FF&E Financing
or Capital Lease Obligations, (b) the creditor under such FF&E Financing or
Capital Lease Obligations agrees to release such Lien upon payment of the
proceeds from the sale of such vessel attributable to such FF&E Financing or
Capital Lease Obligations, (c) the creditor under such FF&E Financing or Capital
Lease Obligations acknowledges that such Lien does not create rights on the hull
or other equipment constituting such vessel, but shall be limited to the FF&E
specifically identified in such creditor's financing or lease and Lien
documents, (d) such Lien is expressly subject and subordinate to the Liens
granted in favor of the Trustee, (e) the creditor under such FF&E Financing or
Capital Lease Obligations agrees to promptly notify the Trustee of the
occurrence of any event of default under such creditor's financing or lease
documents, and (f) the creditor under such FF&E Financing or Capital Lease
Obligations acknowledges and agrees that it has no right to possess or use such
vessel or anything on board such vessel, except for its right to come on board
the vessel to inspect the related FF&E and, after the occurrence and continuance
of an event of default under such creditor's financing or lease documents, to
remove or repossess the subject FF&E, provided that such creditor's efforts to
remove or repossess such FF&E shall be commercially reasonable and shall not
damage the vessel, its hull or any other equipment constituting such vessel.
13. Liens incurred in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company with respect to obligations that do not
exceed Five Millions Dollars ($5,000,000) at any one time outstanding.
14. Liens incurred and pledges made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and Social
Security benefits.
