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EXHIBIT 10.20
BAREBOAT CHARTER PARTY
THIS BAREBOAT CHARTER PARTY, dated as of June 22, 1998 (hereinafter
called the "Charter Party") between Florida Casino Cruises, Inc., a corporation
organized and existing under and by virtue of the laws of the State of Georgia,
with an office at __________________ (hereinafter called the "Owner") and
Leisure Express Cruise, L.L.C., a limited liability company organized and
existing under and by virtue of the laws of the State of Colorado, with an
office at _______________. (hereinafter called the "Charterer").
WHEREAS, Owner is the owner of the VEGAS EXPRESS (Official No. 594643),
WHEREAS, Owner and Charterer desire to enter into the Charter Party in
accordance with the terms and conditions hereof, and
NOW, THIS CHARTER WARTY WITNESSETH that, in consideration of the
premises above recited and the covenants contained herein, Owner agrees to let
and Charterer agrees to hire the Vessel (as hereinafter defined) on the
following terms and conditions.
SECTION 1
DEFINITIONS
1.1 "Vessel" shall mean the VEGAS EXPRESS, together with all of its
boilers, engines, machinery, masts, rigging, boats, anchors, chains, tackle,
apparel, furniture, fittings and equipment and all other appurtenances "hereunto
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 said Vessel, and including all gaming equipment, machinery or accessories
related to gaming operations.
1.2 "Delivery Date", as used in Sections 3, 4, and 5, hereof, shall
mean the closing date when Owner delivers to and Charterer accepts the Vessel as
provided in Section 2 hereof.
SECTION 2
DELIVERY OF VESSEL
2.1 The Vessel will be delivered by Owner to Charterer at Dania, FL, on
June __, 1998. At the time the Vessel is delivered by Owner, Charterer shall
accept the Vessel by executing and delivering to Owner an Acceptance Supplement
therefor, substantially in the form attached hereto as Exhibit A and by this
reference made a part hereof, whereupon the Vessel shall (i) be deemed to have
been accepted by Charterer on the Delivery Date specified in such Acceptance
Supplement, and (ii) become subject to and governed by all the provisions of
this Charter Party.
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SECTION 3
CONDITIONS PRECEDENT TO DELIVERY OF VESSEL
3.1 Owner's obligation to deliver the Vessel to Charterer is subject to
the satisfaction on or before the Delivery Date of each of the following
conditions:
a. The representations and warranties contained in Section 7 of
this Charter Party shall be true on and as of the Delivery Date of the
Vessel and there shall exist on such Delivery Date no Event of Default
as defined in Section 15 in this Charter Party, nor any condition,
event or act which with notice or lapse of time or both would become an
Event of Default as so defined which Event of Default, conditions,
event or act has not been remedied or waived.
b. Owner shall have received evidence satisfactory to Owner that
the insurance required under the terms of this Charter Party is in full
force and effect.
c. Owner shall have received a certified copy of a resolution of
the Board of Directors of Charterer authorizing Charterer's execution
and delivery of this Charter Party and the chartering of the Vessels
from Owner pursuant to the provisions thereof.
3.2 Charterer's obligation to accept delivery of the Vessels from
Owner is subject to the satisfaction on or before the Delivery Date of
each of the following conditions:
a. Charterer has inspected the Vessel and Owner shall have
warranted that the Vessel is in the same condition, reasonable wear and
tear excepted, at the Delivery Date as reflected in the inspection
report prepared by attached hereto as Exhibit B.
b. The representations and warranties contained in Section 7.2 of
this Charter Party shall be true on and as of the Delivery Date of the
Vessel.
c. Charterer shall have received a certified copy of a resolution
of the Board of Directors of Owner authorizing Owner's execution and
delivery of this Charter Party and the chartering of the Vessel to
Charterer pursuant to the provisions thereof.
SECTION 4
TERM OF CHARTER PARTY
4.1 The term of this Charter Party shall commence upon the Delivery
Date and unless sooner terminated as provided herein, shall continue until
January 21, 1999.
4.2 At all times during the term of this Charter Party, title to the
Vessel shall be vested in Owner to the exclusion of Charterer, and delivery of
the Vessel to Charterer and Charterer's possession thereof shall constitute a
letting and bailment.
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4.3 This Charter Party shall not be subject to termination by Owner
unless Charterer is in default hereunder, nor by Charterer except in the event
of a breach of Owner's obligations hereunder.
SECTION 5
CHARTER HIRE PAYMENTS
5.1 Charterer agrees to pay Owner as charter hire equal consecutive
monthly payments of _________________ ($100,000.00) AND NO/100 DOLLARS, in
____________ commencing on the last day of the month of the Delivery Date and on
the last day of each consecutive month thereafter. Such charter hire shall be
absolutely net to Owner, so that this Charter Party will yield to Owner the full
amount of the installments of such charter hire throughout the term of this
Charter Party without deduction.
5.2 All payments under Section 5.1 and all other payments by Charterer
to Owner under this Charter Party shall be made in United States Dollars in
immediately available funds net of any withholding or other taxes except
franchise or income taxes of the Owner, either at the office of Owner at the
address set forth in Section 23 hereof, or at such other address in the United
States as Owner may notify Charterer giving ten (10) days notice in writing.
SECTION 6
NO WARRANTIES; QUIET ENJOYMENT
6.1 Notwithstanding any other provisions of this Charter Party,
simultaneously with the delivery of the Vessel and execution by Charterer and
Owner of the Acceptance Supplement therefor, Charterer shall be deemed to have
accepted delivery of the Vessel under this Charter Party "as is, where is",
without any agreement, representation or warranty, express or implied, by Owner
except as set forth in Section 7.2. OWNER SHALL NOT, BY VIRTUE OF MERELY HAVING
CHARTERED AND LET THE VESSEL UNDER THIS CHARTER PARTY, BE DEEMED TO HAVE MADE
ANY REPRESENTATION OR WARRANTY EITHER EXPRESS OR IMPLIED AS TO THE VESSEL, OR AS
TO THE DESIGN, CONDITION, MERCHANTABILITY OR SEAWORTHINESS OF, OR AS TO
CONSUMABLE STORES ON BOARD THE VESSEL, OR AS TO THE FITNESS OF THE VESSEL, FOR
ANY PARTICULAR PURPOSE OR ANY PARTICULAR TRADE, OR ANY OTHER REPRESENTATION OR
WARRANTY WHATSOEVER except as set forth in Section 7.2, it being agreed and
understood that all such risks as between Owner and Charterer are to be borne
under the Charter Party by Charterer, except as set forth in Section 7.2.
6.2 AS BETWEEN OWNER AND CHARTERER, CHARTERER ACKNOWLEDGES AND AGREES
THAT OWNER HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION OR
WARRANTY OR COVENANT WITH RESPECT OF THE MERCHANTABILITY, CONDITION, QUALITY,
DURABILITY OR SUITABILITY WITH OR FOR THE PURPOSES AND USES OF CHARTERER, OR ANY
OTHER REPRESENTATION OR WARRANTY OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS
OR IMPLIED, EXCEPT AS SET FORTH IN SECTION 7.2 AND
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THAT CHARTERER AGREES THAT OWNER SHALL NOT BE LIABLE TO CHARTERER FOR ANY
LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY
OR INDIRECTLY, TO THE VESSEL OR ANY INADEQUACY THEREOF FOR ANY PURPOSE, OR ANY
DEFICIENCY OR DEFECT THEREIN, OR THE USE OR MAINTENANCE THEREOF, OR ANY REPAIRS,
SERVICING OR ADJUSTMENTS THERETO, OR ANY INTERRUPTION OR LOSS OF SERVICE OR USE
THEREOF, OR ANY LOSS OF BUSINESS BY CHARTERER, OR ANY OTHER CONSEQUENTIAL
DAMAGES, EXCEPT TO THE EXTENT THE SAME IS ATTRIBUTABLE TO A BREACH OF THE
REPRESENTATION IN SECTION 7.2.
6.3 If Charterer shall pay the charter hire and other amounts payable
by Charterer hereunder as and when the same become due and payable and shall
perform and comply with all of the other terms and conditions hereof, Owner and
persons claiming by through or under Owner will not interfere with the peaceful
and quiet use and enjoyment of the Vessel by Charterer, provided that Owner and
its authorized representative may, on reasonable notice, inspect the Vessel as
provided in Section 18 hereof.
SECTION 7
REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Charterer represents, warrants and covenants with respect to this
Charter Party that:
(a) Charterer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Colorado, and is duly qualified and authorized to do business wherever
the nature of its activities or properties require such qualification
and authorization.
(b) Charterer has the full power, authority and legal right to
execute, deliver and perform the terms of this Charter Party. This
Charter Party has been duly authorized by all necessary action of the
Directors of Charterer and continues a valid and binding obligation of
Charterer enforceable in accordance with its terms.
(c) There is no law and no charter, by law or preference share
provision of Charterer and no provision in any existing mortgage,
indenture, contract or agreement binding on Charterer which would be
contravened by the execution, delivery or performance by Charterer of
the terms of this Charter Party.
(d) No consent of the holder of any indebtedness of Charterer is
or will be required as a condition to the validity of this Charter
Party or, if required, all such consents have been obtained.
(e) Neither the execution or delivery of this Charter Party nor
fulfillment of or compliance with the terms and provisions hereof will
contravene any provision of law, including, without limitation thereto,
any statute, rule, regulation, judgment, decree,
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order, franchise or permit applicable to Charterer or any agreement or
instrument to which Charterer is now a party.
(f) Charterer represents that it now is and covenants throughout
the term of this Charter Party that it will continue to be a citizen of
the United States qualified to engage in the coastwise trade within the
meaning of Section 2 of the Shipping Act, 1916, as amended (46 USC,
Section 802, as amended). Charterer further covenants that it will not
cause or permit the Vessel to be operated in any manner contrary to the
law and the Charterer will not engage in any unlawful trade or 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
(other than to suffer or permit anything done by the Owner), anything
which can or may injuriously effect the documentation of the Vessel
under the laws and regulations of the United States and will at all
times keep the Vessel duly documented thereunder.
7.2 Owner represents, warrants and covenants with respect to this
Charter Party that:
(a) Owner is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia, and is duly
qualified and authorized to do business wherever the nature of its
activities or properties require such qualification and authorization.
(b) Owner has the full power, authority and legal right to execute,
deliver and perform the terms of this Charter Party. This Charter Party
has been duly authorized by all necessary corporate action of Owner and
constitutes a valid and binding obligation of Owner enforceable in
accordance with its terms.
(c) There is no law and no charter, by-law or preference share
provision of Owner and no provision in any existing mortgage,
indenture, contract or agreement binding on Owner which would be
contravened by the execution, delivery or performance by Owner of the
terms of this Charter Party.
(d) No consent of the holder of any indebtedness of Owner or of
any mortgagee of the Vessel is or will be required as a condition to
the validity of this Charter Party or, if required, all such consents
have been obtained.
(e) Neither the execution or delivery of this Charter Party nor
fulfillment of or compliance with the terms and provisions hereof will
contravene any provision of law, including, without limitation thereto,
any statute, rule, regulation, judgment, decree, order, franchise or
permit applicable to Owner or any agreement or instrument to which
Owner is now a party.
(f) Owner has good and marketable title to the Vessel, free and
clear of all liens, except as set forth on Schedule I annexed hereto.
There is no action or proceeding pending or, insofar as Owner knows,
threatened against Owner before any court or
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administrative agency which in its opinion might result in any material
adverse effect on the business or conditions or operations of Owner or
Owner's good and marketable title to the Vessel.
(g) Owner represents that it now is and covenants throughout the
terms of this Charter Party that it will continue to be a citizen of
the United States qualified to engage in the coastwise trade within the
meaning of Section 2 of the Shipping Act, 1916, as amended (46 USC,
Section 802, as amended), that the Vessel is duly documented to engage
in the coastwise trade has a valid and current (without benefit of any
grace period) Certificate of Inspection, ____________________________,
and is suitable to be operated as an offshore casino gaming vessel.
(h) ______________________________________________________________
______________________________________________________________________
______________________________________________________________________
SECTION 8
POSSESSION AND USE OF VESSEL
8.1 Charterer shall man, fuel, insure, maintain, navigate and supply
the Vessel at its sole cost and expense and shall pay all charges and expenses
of every kind and penalties levied against the Vessel and arising on or after
the Delivery Date, it being understood that Owner retains no dominion, control,
possession or command during the term of this Charter Party but that Charterer
shall have exclusive use, dominion, control, possession and command of said
Vessel during the term of this Charter Party.
Owner shall, throughout the charter period, maintain the documentation
of the Vessel in the Owner's name under the laws of the United States of America
at the Owner's expense. Charterer will execute such documents and furnish such
information as Owner may reasonably require to enable Owner to maintain such
documentation. Charterer shall not suffer or permit anything to be done (other
than to suffer or permit anything done by the Owner) which can or might
injuriously affect the documentation of the Vessel under the laws and
regulations of the United States of America, engage in any unlawful trade or
violate any law recognized as valid by the United States of America, or carry
any cargo that will expose the Vessel to penalty, forfeiture or capture.
8.2 Charterer shall not sell, assign or transfer or, directly or
indirectly, create or incur or suffer to be created or incurred or to exist any
mortgage (other than any mortgage granted by Owner) lien, charge or encumbrance
of any kind, except for longshoreman's or crew's wages or salvage, on any of its
rights under this Charter Party or on the Vessel, and if any such mortgage,
lien, charge or encumbrance does exist, Charterer, at its sole cost and expense,
shall promptly remove the same. Charterer will at all times keep a true copy of
this Charter Party on board the Vessel with its papers and exhibit the same on
request and Charterer agrees to notify any person furnishing repairs, supplies,
towage, or other necessaries to the Vessel that neither the Charterer nor the
Master of the Vessel nor any person has any right or power to create, incur or
permit to
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be imposed upon the Vessel any liens whatsoever, except a longshoreman's or
crew's wages or salvage, and will keep prominently displayed on the Vessel a
notice which shall read as follows:
"NOTICE OF BAREBOAT CHARTER PARTY
This Vessel is the property of Florida Casino Cruises, Inc. It is under
charter to Leisure Express Cruise, L.L.C. and by the terms of the
Bareboat Charter Party neither the Charterer, the Master of this Vessel
nor any other person has the right, power or authority to create, incur
or permit to be imposed on the Vessel any liens whatsoever, except for
longshoreman's or crew's wages and salvage."
Notwithstanding anything contained herein to the contrary, Charterer shall have
the right to create, incur or permit to be placed or imposed upon the Vessel
usual and customary operating liens which are to be discharged within the normal
course of business and shall have the right to grant security rights to allow
financing for furniture, fixtures and equipment, including gaming equipment, of
the Charterer used in its ordinary course of business (hereinafter called
"FF&E"), so long as the grantee of such security rights expressly waives any
lien or security right against the Vessel or its equipment.
8.3 Charterer shall accept, and pay to Owner the then current market
price at N/A for such fuel, lubricating oil and unbroached consumable stores as
may be the property of Owner and on board at the time of delivery to Charterer.
_______________________________________________________________________________
_______________________________________________________________________________
_____________________________________________.
Charterer shall at its own expense provide such additional equipment,
outfit, appliances, tools, spare and replacement parts, non-consumable stores,
etc. as may be required for operation of the Vessel. Such equipment shall remain
the property of Charterer.
8.4. Subject to the right of Charterer to deliver possession of the
Vessel to any organization for overhauling, service, repair or maintenance work
on the Vessel, Charterer shall not transfer possession of or sub-lease the
Vessel.
SECTION 9
MAINTENANCE AND OPERATION OF VESSEL
9.1 Charterer at its own cost and expense shall maintain and preserve
the Vessel in good running order and repair, so that the vessel, insofar as due
diligence can make her so, is tight, staunch, strong and well and sufficiently
tackled, appareled, furnished, equipped.
9.2 Charterer covenants that the vessel will at all times comply with
applicable laws, treaties, conventions, rules and regulations issued thereunder,
and will keep on board, when required thereby, valid certificates showing
compliance therewith.
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9.3 Charterer will not cause or permit the Vessel to be operated in any
manner contrary to applicable laws, treaties, conventions or rules and
regulations and undertakes to do all such things, without expense to Owner, as
shall be necessary to comply with all requirements to permit lawful operation of
the Vessel; provided, however, that Charterer may in good faith contest the
validity and application of any such law or rule in any reasonable manner which
does not adversely affect the property or rights of Owner hereunder, and no
technical or nonsubstantial noncompliance with the provisions of this Section
9.3 shall be deemed a material breach if Charterer shall have obtained, in
writing, from the appropriate authorities permissions, extensions or
continuances to perform any act required of Charterer hereunder, provided
Charterer shall perform any and all requirements or conditions set forth in such
permissions, extensions or continuances.
9.4 Charterer shall not detach or remove from, or permit or suffer to
be detached or removed from the Vessel any equipment, accessories or parts on
board the Vessel at the commencement of the term of this Charter Party or
considered to be a part thereof in accordance with the definition contained in
Section 1 hereof, unless any such detachment or removal shall be incident to any
replacement permitted under Section 10 hereof.
9.5 Owner shall have the right at any time and at its expense, on
reasonable notice, to inspect the Vessel in order to ascertain whether the
Vessel is being properly repaired and maintained and the Charterer shall cause
to be made all such repairs, without expense to Owner, as such inspection or
survey may show to be required. The Charterer shall also permit the Owner to
inspect the Vessel's logs, whenever requested, on reasonable notice, and shall
furnish the Owner with full information regarding any material casualties or
other accidents or damage to the Vessel.
9.6 If a complaint be filed against the Vessel or the Vessel be
otherwise attached, arrested, levied upon or taken into custody under process or
color of legal authority for any cause whatsoever, the Charterer will promptly
notify Owner by telecopier or by telephone that is confirmed in writing, at the
address specified in Section 22.1 of this Charter Party, and unless such liens
were created solely by any act or inaction of the Owner, within 15 days from the
time of such complaint, attachment, arrest or seizure will cause the Vessel to
be released and all Liens thereon to be discharged and will promptly notify the
Owner in the manner aforesaid.
If the Charter shall fail or neglect to furnish proper security or
otherwise to release the Vessel from complaint, arrest, levy, seizure or
attachment, the Owner or the Trustee or any person acting on behalf of the Owner
may furnish security to release the Vessel and by so doing shall not be deemed
to cure the default of the Charterer.
9.7 Charterer acknowledges that this is a Bareboat Charter Party only
and that Charterer has not acquired and shall not acquire during the term of
this Charter Party any right, title or interest in and to the Vessel, which are
and shall at all times remain the property of the Owner.
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SECTION 10
REPLACEMENT AND ADDITIONS TO THE VESSEL
10.1 Charterer will not make, nor permit to be made, any substantial
change in the structure, type or speed of the Vessel or change in her rig,
without first having obtained the written approval thereof of the Owner.
Charterer may replace any accessory, equipment, part or item appurtenant to the
Vessel or any of its equipment where necessary in the normal course of
Charterer's maintenance, provided such replacement is of new manufacture or
warranted as rebuilt or reconditioned by Charterer or a manufacturer and in good
operating order, and is of at least equivalent value and condition as the
accessory, equipment, part, item or equipment replaced. Any accessories, parts
or items that are installed on, incorporated in or attached to the Vessel by
Charterer in replacement of existing accessories, equipment, parts, items, and
any accessories, and which are essential to the operation of the Vessel, will be
considered to be accessions (hereinafter called "accessions") to the Vessel and,
title to such accessions will be immediately vested in Owner without cost or
expense to Owner upon such installation, incorporation or attachment, and such
accessions will become subject to all of the terms and provisions of this
Charter Party as completely and to the same extent as if they had been
components of the Vessel at the time it originally became subject to this
Charter Party, and title to the accessories, equipment, parts, or items which
are replaced by the accessions shall be vested in Charterer when such
replacement has been completed. Any accessories, equipment, parts or items that
are installed on, incorporated in or attached to the Vessel by Charterer and
which are in addition to, but not in replacement of, existing accessories,
equipment, parts or items, but are not essential to the operation of the Vessel
will not be considered accessions but rather will be considered non-essential
additions (hereinafter called "non-essential additions") to the Vessel if, and
only if, such non-essential additions to the Vessel are not affixed or attached
to the Vessel to such an extent that their removal could involve considerable
expense or might result in damage to the Vessel, and title to such non-essential
additions as well as title to any Charterer supplied gaming equipment, machinery
or accessories related to gaming operations and other furniture and equipment
owed by Charterer and used in its ordinary course of business, shall remain with
Charterer. Charterer's FF&E shall be absolutely removable, provided Charterer
repairs all damage resulting from such removal.
SECTION 11
ALTERATIONS
11.1 Owner shall bear no liability whatsoever for the cost of any
replacements or additions to accessories, equipment, parts or other items to the
Vessel or for alterations or modifications to the Vessel made by Charterer
during the term hereof, including, without limitation, modifications required by
authority or by changes in laws or regulations.
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SECTION 12
INSURANCE
Charterer shall, at its sole expense, carry the following minimum
insurance coverages through the term of this Charter Party, including any
extension hereof, or such increased coverages as may be considered necessary or
advisable for the protection of Owner:
12.1 (a)(i) Unless such types of insurance are no longer commercially
available, the Charterer will at all times and at its own cost and expense cause
to be carried and maintained in respect of the Vessel insurance payable in
United States Dollars in such amounts, against such risks (including navigating
risk and marine hull and machinery (including excess value) insurance, marine
protection and indemnity insurance and public liability insurance) and in such
form (including, without limitation, the form of the loss payable clause and the
designation of named assureds) as provided in Schedule II.
(ii) In the case of all marine hull and machinery policies, the
Charterer will cause, within 30 days after the Closing Date, Owner to
be named as a co-insured and will (and cause its insurance broker to)
cause the insurers under such policies to waive any liability of Owner
for premiums payable under such policies. In the case of all protection
and indemnity insurance, if obtainable, the Shipowner will cause Owner,
within 30 days after the Closing Date, to be named as an additional
insured unless it cannot be provided that Owner shall not be liable
under such policies for payment of any premium, club call, assessment
or advance. Notwithstanding the foregoing, at no time shall there be
recourse against Owner and owner under such policies for payment of any
premium, club call, assessment, advance or commission.
(iii) The Charterer will cause the form of insurance brokers
referenced in Section 12.1(a)(iv) of this Charter Party to agree to
advise Owner forthwith by telecopier to their addresses of any lapse of
any such insurance by expiration, termination, failure to renew or
otherwise and of any default in payment of any premium and of any other
act or omission on the part of the Charterer of which such brokers have
knowledge and which might invalidate or render unenforceable, in whole
or in part, any insurance on the Vessel. Absent actual knowledge,
neither Owner shall be deemed to have knowledge of any such lapse of
insurance in the absence of receipt of notice from such brokers.
Promptly after the Closing Date, the Charterer will also cause such
brokers to agree to xxxx their records and to advise Owner, by
telecopier, addressed as provided above in this subsection, at least
five (5) business days prior to the expiration date of any insurance
carried pursuant to this Charter Party, that such insurance has been
renewed or replaced with new insurance which complies with the
provisions of this Section 12. In addition, the Charterer will use its
best efforts to cause each insurance company, underwriter, club or fund
(or any authorized agent thereof) with respect to all insurance
required hereby to agree in writing for the benefit of Owner that each
policy or contract issued by such insurance company, underwriter, club
or fund shall not lapse, expire, terminate or be
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cancelled for any reason whatsoever without at least ten days' prior
notice to Owner by telecopier or cable addressed as provided above in
this subsection (iii).
(iv) __________________________ Charterer, at its own expense,
shall furnish to Owner simultaneously with the execution and delivery
hereof, a report in form and substance satisfactory to Owner (which
shall set forth, without limitation, with respect to each type of
insurance coverage, each policy or certificate of entry, its form, its
number, its amount, each direct or indirect or participating insurer or
underwriter, the type of risk covered and the expiration date), signed
by a firm of independent insurance brokers appointed by the Charterer
and acceptable to Owner, with respect to the insurance carried and
maintained in respect of the Vessel.
(b) For the purposes of insurance against total loss, the Vessel,
its equipment, appurtenances, etc., shall be insured for and valued at
an amount at least equal to the fair market value thereof. Protection
and indemnity insurance in respect of the Vessel shall be in the
highest amount from time to time commercially reasonable for vessels of
the same type, size, age and flag the Vessel, but in any event shall be
in an amount for each occurrence of not less than the declared value of
Vessel under its hull and machinery insurance.
(c) Unless otherwise required by Owner by notice to the
underwriters, although the following insurance is payable to the Owner,
(i)___________________________________________________________________
in the case of any loss ______________________________________________
under any insurance with respect to the Vessel involving any damage to
the Vessel, the underwriters may pay directly for the repair, salvage
or other charges involved or, if the Charterer shall have first fully
repaired the damage or paid all of the salvage or other charges, will
pay the Charterer as reimbursement therefor.
(d) In the event of an actual, constructive or compromised total
loss of the Vessel, all insurance provided for herein or other payments
for such loss shall be paid to the Owner. Under such an event, the
Charter Party shall then terminate as of the date payment of the
insurance is made to the Owner and, in addition, Charterer shall be
required to pay to Owner the sum of the charter hire due and payable as
to the Vessel to the date of the loss. Nothing herein shall prevent
Charterer from obtaining business interruption insurance or insurance
on FF&E, the proceeds of which, if any, shall be payable to the
Charterer or its assigns.
(e) The Charterer will cause all policies and certificates of
entry with respect to insurance required hereby to contain a loss
payable clause which shall: (i) in the case of protection and indemnity
insurance and public liability insurance, provide for payment to the
Charterer or its order unless and until the underwriters or
associations receive notice from the Owner that there has occurred and
is continuing an Event of Default hereunder, in which event all
payments shall be made to the Owner and (ii) in the case of
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all other insurance, provide for payment in acceptance with the terms
of subsections (c) and (d) of this Section 12.1. In addition (unless
all or substantially all of the insurance required by this Section 12.1
is placed in the United States market), the Charterer will, at its own
cost and expense, assign to Owner as their interests may appear all of
the Charterer's right, title and interest in and to each policy and
contract of insurance (including all entries in protection and
indemnity associations) with respect to the insurance required hereby
and furnish, or cause its brokers to furnish, written notice of such
assignment to all insurers, underwriters, clubs and associations with
respect to such insurance.
(f) In the event that any claim or lien is asserted against the
Vessel for loss, damage or expense which is covered by insurance
required hereunder, and it is necessary for the Charterer to obtain a
bond or supply other security to prevent arrest of the Vessel or to
release the Vessel from arrest on account of such claim or lien. Owner,
on request of the Charter or its agent, may assign to any person, firm
or corporation executing a surety or guarantee bond or other agreement
to save or release the Vessels from such arrest, all right, title and
interest of Owner in and to said insurance covering said loss, damage
or expense, as collateral security to indemnify against liability under
said bond or other agreement.
(g) The Charterer will deliver to Owner copies of all cover notes,
binders, policies and certificates of entry in protection and indemnity
associations, and all endorsements and riders amendatory thereof, in
respect of insurance maintained in connection with the Vessel.
(h) The Charterer agrees that it will not do or permit or
willingly allow to be done any act by which any insurance required by
the terms of this Charter may be suspended, impaired or cancelled, and
that it will not permit or allow the Vessel to undertake any voyage or
run any risk or transport any cargo which may not be permitted by the
policies in force, without having previously insured the Vessel by
additional coverage to extend to such voyages, risks or cargoes.
12.2 Without limiting the foregoing, it is hereby agreed that Owner
may, at Owner's expense, insure the Vessel against loss under Charterer's then
current policies, and the full amount of any proceeds or award in respect of
such additional insurance shall be paid to Owner. Charterer agrees that it will
cooperate with Owner in any reasonable manner to enable Owner to obtain such
additional insurance.
SECTION 13
SEIZURE OF VESSEL
13.1 In the event that there should be a condemnation, seizure or other
taking of the Vessel by governmental authority, whether under the power of
eminent domain or otherwise, if lasting for a period of more than thirty (30)
days, then Owner and Charterer shall have the same rights, duties and
responsibilities with reference to the Vessel so condemned, seized or taken, as
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they would under the provisions of Section 12.1(d) hereof, with the result that
the Charter Party shall then terminate as of the date payment of insurance is
made to the Owner and, in addition, Charterer shall be required to pay to Owner
the charter hire due and payable as to the Vessel to the date of condemnation or
taking. The sum shall be due to Owner no later than sixty (60) days following
the date of such condemnation, seizure or taking.
SECTION 14
INDEMNIFICATION AND WAIVER
14.1 Charterer hereby agrees to indemnify, defend, reimburse and hold
Owner harmless from and against any and all claims (by whomsoever made and
whether groundless or not), losses, liabilities, including, but not limited to,
any claim or liability for strict liability in tort, demands, suits, judgments
or causes of action and all legal proceedings, whether civil or criminal,
penalties, fines and other sanctions and any costs and expenses in connection
therewith which may result from or grow or arise in any manner out of the
management, control, chartering, encumbering, condition, repair, use or
operation of the Vessel during the term hereof.
SECTION 15
OWNER'S REMEDIES UPON DEFAULT
15.1 If during the continuance of this Charter Party one or more of the
following events (herein called Events of Default) shall occur:
(a) default shall be made by Charterer in the making of any
payments of charter hire to Owner when due under this Charter Party,
___ __________________ and, as to any other payments due under this
Charter Party, when not made within ten (10) days after written notice
specifying the default and demanding the same to be remedied;
(b) default shall be made by Charterer at any time in the
procurement or maintenance of any insurance coverage prescribed herein;
(c) default shall be made in the observance or performance of any
other of the covenants, representations, conditions, agreements, or
warranties on the part of Charterer contained herein, and such default
shall continue for _________ days after written notice from Owner to
Charterer specifying the default and demanding the same to be remedied;
(d) if any representation or warranty of Charterer contained in
this Charter Party shall prove to have been untrue or incorrect in any
material respect when made, and not remedied with _________ days after
discovery thereof;
(e) Charterer shall consent to the appointment of a receiver,
trustee or liquidator of itself or of a substantial part of its
property, or Charterer shall admit, in writing, its insolvency or
bankruptcy or its inability to pay its debts generally as they come
due, or shall make a general assignment for the benefit of creditors,
or shall file a petition in bankruptcy or a petition or any answer
seeking reorganization in a proceeding
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under any bankruptcy laws (as now or hereafter in effect), or a
readjustment of its indebtedness, or an answer admitting the material
allegations of a petition filed against the Charterer in any such
proceedings, or Charterer shall by petition, answer or consent seek
relief under the provisions of any other now existing or future
bankruptcy or other similar law providing for the reorganization or
winding-up of corporations, or Charterer shall make an agreement,
composition, extension or adjustment with its creditors;
(f) an order, judgment or decree shall be entered by any court of
competent jurisdiction appointing a receiver, trustee or liquidator of
Charterer or of any substantial part of the property of Charterer
without its consent, or if any substantial part of the property of the
Charterer shall be sequestered and any such order, judgment or decree
of appointment or sequestration shall remain in force undismissed,
unstayed or unvacated for a period of ___________ days after the date
of entry thereof.
(g) a petition against Charterer in a proceeding under the
bankruptcy laws or other solvency laws (as now or hereafter in effect)
shall be filed and any decree or other order adjudging Charterer a
bankrupt or insolvent in such proceeding shall remain in force
undismissed or unstayed for a period of ______________ days after such
adjudication (whether or not consecutive), or in case the approval of
such petition by a court of competent jurisdiction is required, the
petition as filed or amended shall be approved by such a court as
properly filed and such approval shall not be withdrawn or the
proceeding dismissed within ___________ days thereafter, or if under
the provisions of any law providing for reorganization or winding-up of
corporations which may apply to Charterer, any court or competent
jurisdiction shall assume jurisdiction, custody or control of Charterer
or of any substantial part of its property, and such jurisdiction,
custody or control shall remain in force unrelinquished, unstayed or
unterminated for a period of _________ days;
Then, in any such case, after the occurrence of such Event of Default, and while
such Event of Default shall be continuing, Owner, at its option, may:
(i) Proceed by appropriate court action or actions either at law,
admiralty or in equity to enforce performance by Charterer of the
applicable covenants and terms of this Charter Party or to recover from
Charterer any and all damages or expenses, including reasonable
attorneys' fees, which Owner shall have sustained by reason of
Charterer's default in any covenant or covenants of this Charter Party
or on account of Owner's enforcement of its remedies hereunder, and/or
(ii) give notice in writing to Charterer specifying the occurrence
giving rise to such Event of Default or Events of Default and stating
that this Charter Party shall expire and terminate on the date
specified in such notice, which shall be at least ten (10) days after
the giving of such notice (hereinafter called "Date of Termination")
and upon the date so specified (unless such Event of Default or Events
of Default have been cured), this Charter Party shall expire and
terminate, whereupon all rights of Charterer to or in the use of the
Vessel shall absolutely cease and determine as though this Charter
Party
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had never been made, but Charterer shall remain liable as hereinafter
provided and thereupon Charterer shall deliver possession of the Vessel
to Owner in accordance with Section 16 hereof, and Owner by itself or
by its agents, without further notice, may retake the Vessel wherever
found, but shall be under no obligation to, whether upon the high seas
or at any port, harbor or other place and irrespective of whether
Charterer, any subcharterer or any other person, corporation,
partnership or any other entity may be in possession of the Vessel, all
without prior demand and without legal process, and for that purpose
Owner or its agents may enter upon any dock, pier or other premises
where the Vessel may be and may take possession thereof, and
thenceforth hold, possess and enjoy the Vessel free from any right of
Charterer or its successor or assigns, to hold, use or sell the Vessel
for any purpose whatsoever and Owner shall have a right to recover from
Charterer any and all amounts which under the terms of this Charter
Party may be then due.
15.2 In accordance with Section 15.1(ii) and without limiting the
generality thereof, Owner or its agents may sell the Vessel at public or private
sale, with or without notice to Charterer, advertisement or publication, as
Owner may determine or otherwise may dispose of, hold, use, operate, charter
(whether for a period greater or less than the balance of what would have been
the term of the Charter Party in the absence of the termination of Charterer's
rights to the Vessel) to others, all on such terms and conditions and at such
place or places as Owner may determine.
15.3 If on the Date of Termination the Vessel is lost, destroyed,
requisitioned, forfeited, seized or captured, Charterer's liability hereunder
shall be determined by Section 13 hereof.
15.4 No right or remedy conferred upon or reserved to Owner by this
Charter Party shall be exclusive of any other right or remedy herein or by law
provided; all rights and remedies of Owner conferred upon Owner by this Charter
Party or by law shall be cumulative and in addition to every other right and
remedy available to Owner.
15.5 Owner, at its election, may waive any Event of Default and its
consequences and rescind and annul any such notices of termination by notice to
Charterer, in writing, to that effect and thereupon the respective rights of the
parties shall be as they could have been if no Event of Default had occurred and
no such notice had been given. Notwithstanding the provisions of this Section
15.5, it is expressly understood and agreed by Charterer that time is of the
essence of this Charter Party and that no waiver, rescission or annulment shall
extend to or affect any other or subsequent default or impair any right or
remedies of Owner consequent thereon.
15.6 To the extent that the provisions of Section 1110(a) of the
Bankruptcy Code (11 U.S.C. Sections 362, 363), or any corresponding provisions
of subsequent law at any time may be applicable hereto, the title of Owner to
the Vessel and any right of Owner to take possession of the Vessel in compliance
with the provisions hereof shall not be affected by any power of the court to
enjoin the taking of such possession, or by Sections 362 and 363 of the
Bankruptcy Code
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(11 U.S.C. Sections 362, 363) as that Code may be amended from time to time, or
by corresponding provisions of subsequent law.
SECTION 16
RETURN OF VESSEL AND ITS EQUIPMENT UPON DEFAULT
16.1 If this Charter Party shall terminate pursuant to Section 15
hereof, Charterer shall forthwith deliver possession of the Vessel to Owner.
For the purpose of delivering possession of the Vessel to Owner
as above required, Charterer shall at its own cost, expense and risk forthwith
place the Vessel safely afloat and securely moored or anchored at
_____________________________________________.
16.2 Charterer shall also deliver to Owner with the Vessel, the
Vessel's log books, if any, and all classification, inspection, modification and
overhaul records applicable to the Vessel.
16.3 In the event that within five (5) days after such termination
pursuant to Section 15 of this Charter Party Charterer shall fail to deliver the
Vessel to Owner as required by Section 16.1 of this Charter Party, Owner shall
be entitled to take (or cause to be taken by its agent or agents) immediate
possession of the Vessel as the same may be found together with their records,
and to transport, berth and store the Vessel at Charterer's expense in the
manner, at the place referred to in Section 16.1 of this Charter Party.
Without in any way limiting the obligation of Charterer under the
foregoing provisions of this Section 16, Charterer hereby irrevocably appoints
Owner as the agent and attorney of Charterer, with full power and authority, at
any time while Charterer is obligated to deliver possession of the Vessel to
Owner, to demand and take possession of the Vessel and their records in the name
and on behalf of the Charterer from whomsoever shall be at the time in
possession of the Vessel.
SECTION 17
RETURN OF VESSEL UPON EXPIRATION OF TERM
17.1 At the expiration of the term or upon sooner termination of this
Charter Party, Charterer shall return the Vessel to Owner free of all liens and
encumbrances other than any created by Owner, its agent or assigns, and in the
same operating order, repair, condition and appearance as when received by
Charterer, excepting only for (i) reasonable wear and tear, and (ii) changes or
alterations properly made by Charterer as permitted in Section 10 hereof.
Charterer shall pay for any and all repairs necessary to restore the Vessel to
their original condition except as aforesaid.
17.2 Charterer shall also deliver to Owner with the Vessel the Vessel's
log books, if any, all classification, inspection, modification and overhaul
records as applicable to the Vessel.
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17.3 The Charterer shall return the Vessel to the Owner, safely afloat
and securely moored or anchored at ____________________________________________.
SECTION 18
INSPECTION
18.1 During the term of this Charter Party, Charterer shall furnish to
Owner such information concerning the location, condition, use and operation of
the Vessel as Owner may reasonably request and Charterer, on reasonable notice,
shall permit any person designated by Owner, in writing, at Owner's expense, to
visit and inspect the Vessel and the records maintained in connection therewith.
Owner agrees that in any such inspection pursuant to this Section 18 or
otherwise contained in this Agreement, to use all reasonable efforts to minimize
any interference with Charterer's operations.
SECTION 19
ASSIGNMENT BY CHARTERER
19.1 No assignment, subcharter or sublease of this Charter Party or of
any right or obligation hereunder whatsoever may be made by Charterer without
the prior written consent of Owner. In the event of any such assignment or
subcharter or sublease, Charterer shall continue to remain liable hereunder
notwithstanding such assignment or subcharter or sublease, although Owner may
have consented thereto
SECTION 20
FURTHER ASSURANCES
20.1 Charterer and Owner shall from time to time do and perform such
other and further acts and execute and deliver any and all such other and
further instruments as may be required by law or reasonably requested by the
other to establish, maintain and protect the respective rights and remedies of
the other and to carry out and effect the intents and purposes of this Charter
Party.
SECTION 21
EXTENSION NOT A WAIVER
21.1 No delay or omission in the exercise of any power or remedy herein
provided or otherwise available to the Owner shall impair or affect Owner's
right thereafter to exercise the same. Any extension of time for payment
hereunder or other indulgence granted to Charterer shall not otherwise alter or
affect the obligations of Charterer or Owner's rights hereunder with respect to
any subsequent payments or defaults hereunder.
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SECTION 22
NOTICES
22.1 All demands, notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when personally delivered
or when deposited in the mail first class postage prepaid or delivered to a
telegraph office charges prepaid addressed as follows:
To Owner:
Florida Casino Cruises, Inc.
____________________________
____________________________
Attn: ______________________
Phone: _____________________
Fax:________________________
To Charterer:Leisure
Express Cruise, L.L.C.
____________________________
____________________________
Attn: ______________________
Phone: _____________________
Fax:________________________
SECTION 23
SUCCESSORS AND ASSIGNS
24.1 Subject to the provisions of Sections 8 and 21 hereof, this
Charter party shall be binding upon and shall inure to the benefit of Owner and
Charterer and their respective successors and assigns provided that any
assignment or sublease shall be made in accordance with the terms hereof and no
other persons shall have or acquire any right under or by virtue of this Charter
Party.
SECTION 24
EXECUTION IF CHARTER PARTY
25.1 Three (3) or more counterparts of this Charter Party have been
executed by the parties hereto. One (1) counterpart has been prominently marked
"OWNER'S COPY". Only the counterpart marked "OWNER'S COPY" shall evidence a
monetary obligation of Charterer.
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SECTION 25
APPLICABLE LAW
26.1 The provisions of this Charter Party and all rights and
obligations hereunder shall be governed by and construed in accordance with the
maritime law of the United States and, where silent, the laws of the State of
Florida. Any provision hereof prohibited by or unlawful or unenforceable under
any applicable law of any jurisdiction shall as to such jurisdiction be
ineffective without modifying the remaining provisions of this Charter Party.
Where, however, the provisions of any such applicable law may be waived, they
are hereby waived by Charterer and Owner to the full extent permitted by law to
the end that this Charter Party shall be deemed to be a valid binding agreement
enforceable in accordance with its terms. SEE ALSO ATTACHED ADDENDUM CONSISTING
OF TWO (2) PAGES
IN WITNESS WHEREOF, the parties hereto have caused this Charter Party
to be executed this day of June, 1998, in their respective corporate names by
their respective representatives hereunto duly authorized.
FLORIDA CASINO CRUISES, INC. LEISURE EXPRESS CRUISE, L.L.C.
Owner Charterer
By /s/ J. Xxxx Xxxxxx By /s/ Xxxxx X. Xxxxx
---------------------------------- ---------------------------------
J. Xxxx Xxxxxx, Xxxxx X. Xxxxx,
President Executive Vice President
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EXHIBIT A
ACCEPTANCE SUPPLEMENT
VEGAS EXPRESS
(Official No. 594643)
Florida Casino Cruises, Inc. ("Owner") hereby delivers to Leisure Lady
Cruise Corporation ("Charterer") and Charterer does hereby accept and
acknowledge sole care, custody, control and receipt in accordance with a certain
Bareboat Charter Party, dated as of June 22, 1998, of the captioned vessel
safely afloat at Dania, FL.
IN WITNESS WHEREOF, Owner and Charterer have hereunto caused their
respective names to be signed by their proper representative, duly authorized to
do so, on this 22nd day of June, 1998 at Naples, Florida.
LEISURE EXPRESS CRUISE, L.L.C.
By:
--------------------------------
Its: President
FLORIDA CASINO CRUISES, INC.
By:
--------------------------------
Its: President
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SCHEDULE I
1. HULL AND MACHINERY COVERAGE:
American Institute Hull Clauses (June 2, 1977)
Institute S.R. & C.C. Clauses
Insured for & Valued at $6,500,000
2. PROTECTION & INDEMNITY:
Form SD-23
$1,000,000 per occurrence, $5,000 Deductible, each occurrence
3. POLLUTION:
WQIS Form
$5,000,000
4. BUMBERSHOOT LIABILITY:
$10,000,000 excess of $1,000,000 primary limits
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