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EXHIBIT 10.1
PREFERRED SHIP MORTGAGE
This Preferred Ship Mortgage is made as of January 18, 2000 by Princesa
Partners, a Florida general partnership having its principal office at 000 X.
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx (the "Mortgagor") in favor of The
National City Bank of Evansville, having its principal office at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, (the "Mortgagee").
RECITALS
FIRST: The Mortgagor is the sole owner of the whole (100%) of the vessel
Princesa, official number 1073261, which is documented under and
pursuant to the laws of the United States of America.
SECOND: By the terms of a Loan Agreement dated January 18, 2000 (as amended,
modified, supplemented or restated from time to time and hereinafter
referred to as the "Loan Agreement") the Mortgagee has agreed to
extend to Bayfront Ventures a committed line of credit in an
aggregate amount not to exceed $500,000 outstanding at any one time
as evidenced by a note dated January 18, 2000 (the "Note").
THIRD: The Mortgagor has agreed to guarantee payment of Bayfront Ventures'
obligations (the "Obligations"). The guaranty is evidenced by a
Guaranty dated January 18, 2000 (hereinafter the "Guaranty").
FOURTH: Mortgagor has executed, and the vessel Princesa is subject to, a
First Preferred Ship Mortgage dated October 15, 1998.
FIFTH: The Mortgagor has duly authorized and directed the execution of this
Mortgage as a preferred ship mortgage under the Ship Mortgage Act,
1920, as amended and recodified, 46 U.S.C. Section 31321 et. seq.
(the "Ship Mortgage Act") on the said vessel.
NOW, THEREFORE, in order to secure the Guaranty and in consideration of
the premises and in order to induce the Mortgagee to make or maintain the
advances pursuant to the Loan Agreement and evidenced by the Note and in
consideration of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
THE MORTGAGOR hereby grants, bargains, sells, conveys, transfers,
assigns, releases, pledges, grants a security interest in, sets over,
hypothecates and mortgages unto the Mortgagee, its successors and assigns, the
whole (100%) of the vessel described on (Schedule A) attached hereto together
with all of its engines, boilers, machinery, covers, masts, bowsprits, boats,
spars, anchors, cables, chains, rigging, tackle, capstans, fittings, tools,
pumps and pumping equipment, gear, apparel, furniture, equipment, spare parts,
supplies, accessions and accessories and all other appurtenances thereunto
appertaining and belonging, whether now owned or hereafter acquired, whether on
board or not and also any and all additions, improvements and replacements
hereafter made in, for or to the Vessel, or
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any part thereof, or in or to its equipment and appurtenances aforesaid, and all
earnings, hire, freight or other monies obtained through the use and operation
thereof and all proceeds of the foregoing (all of the foregoing referred to
herein as the 'Vessel");
TO HAVE AND TO HOLD the Vessel unto the use and benefit of Mortgagee,
its successors and assigns, and to their own use and benefit forever;
PROVIDED, HOWEVER, that if Bayfront Ventures shall pay or cause to be
paid in full to Mortgagee all outstanding and unpaid Obligations, and if the
Lender shall have no obligation to advance additional funds to Bayfront Ventures
under the Loan Agreement, then upon payment by the Mortgagor of any recording or
other fees attendant to filing the satisfaction of this Mortgage with the United
States Coast Guard and thenceforth this Mortgage and everything herein contained
shall cease and be null and void; otherwise this Mortgage shall be and remain in
full force and effect; and
FURTHER PROVIDED, HOWEVER, that the Vessel is mortgaged to the
Mortgagee subject to the following further representations, warranties,
covenants, agreements, conditions and provisions of this Mortgage.
ARTICLE I
REPRESENTATIONS AND WARRANTIES
The Mortgagor hereby represents, warrants, and agrees as follows:
1.1 Mortgage is Legal, Valid and Binding. This Mortgage constitutes a
legal, valid and binding obligation of Mortgagor and, upon the filing hereof
with the United States Coast Guard National Vessel Documentation Center creates
a preferred ship mortgage in the Vessel which is enforceable against Mortgagor
in accordance with its terms.
1.2 Title to Vessel. The Mortgagor is the sole, true and lawful owner
and is lawfully possessed of the Vessel, and the Mortgagor owns all right, title
and interest in and to the Vessel free and clear of all complaints in rem,
libels, liens (maritime or otherwise), charges, claims, security interests,
mortgages or other encumbrances of any kind or nature except such as are
permitted by the terms of Section 2.10.
1.3 Citizen of United States. Mortgagor is a citizen of the United
States within the meaning of the Shipping Act, 1916, as amended, for the purpose
of operating the Vessel in coastwise trade and is entitled to own and operate
the Vessel under its marine documents.
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ARTICLE II
COVENANTS
Mortgagor covenants and agrees as follows:
2.1 Covenants in Loan Agreement. Mortgagor will fully perform all
covenants, agreements, obligations and conditions required of Mortgagor in the
Loan Agreement.
2.2 Maintain Citizenship and Documentation of Vessel. The Mortgagor
will at all times maintain the Vessel, so long as it shall be subject to the
lien hereof as a vessel of the United States and shall maintain the
documentation of the Vessel under the laws of the United States, and will
maintain the same hailing port for the Vessel as set forth in its original
documentation papers unless a change of said port is authorized by the
Mortgagee. Mortgagor shall continue to be a citizen of the United States
entitled to own and operate the Vessel in the U.S. coastwise trade under its
marine documents, which Mortgagor shall maintain in full force and effect.
2.3 Title to Vessel. Except to the limited extent permitted under
Section 2.11 of this Mortgage, Mortgagor shall continue to own and possess the
whole of the Vessel free from all complaints in rem, libels, liens (maritime or
otherwise), charges, claims, security interests, mortgages, pledges or other
encumbrances of any kind or nature (except in favor of Mortgagee). The Mortgagor
hereby does and will forever warrant and defend the title and possession of the
Vessel, and each part thereof, for the benefit of the Mortgagee, against any and
all claims and demands whatsoever.
2.4 Preservation of Mortgage Lien. The Mortgagor will comply with and
satisfy all provisions of law, including without limitation the Ship Mortgage
Act, and will take any and all such other action as may be required from time to
time in order to establish and maintain this Mortgage as a valid and perfected
preferred ship mortgage under the Ship Mortgage Act on the Vessel in accordance
with the terms hereof.
2.5 Transfer of Vessel. The Mortgagor shall not sell or transfer the
Vessel, or place or permit the Vessel to be placed under any foreign
registration or flag or change the hailing port of the Vessel, or do or suffer
or permit anything to be done, including placing the Vessel under charter, which
can or might adversely affect the registration or documentation of the Vessel
under the laws or regulations of the United States, without the prior written
consent of the Mortgagee.
2.6 Taxes. The Mortgagor will from time to time pay or discharge or
cause to be paid or discharged, as they become due and payable, all taxes,
assessments, and governmental charges levied or assessed or imposed upon the
Vessel.
2.7 Seizure of Vessel. If the Vessel shall at any time, while subject
to the lien hereof, be libeled, seized, detained, levied or attached under
process or color of legal authority for any cause whatsoever, the Mortgagor will
forthwith notify the Mortgagee in
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writing and, without expense to the Mortgagee, within ten (10) days from the
time of such libel, seizure, detention, levy or attachment, either shall cause
the Vessel to be released by filing an undertaking or stipulation or otherwise
as may be lawfully permitted or shall furnish the Mortgagee additional security
of a value acceptable to the Mortgagee. If the Mortgagor shall fail or neglect
to furnish additional security to the Mortgagee or otherwise to release the
Vessel from libel, seizure, detention, levy or attachment, the Mortgagee may
(but need not) furnish security to release the Vessel, and if, as a result of
such libel, seizure or attachment, the Vessel shall be sold at a marshal's sale
or otherwise under legal process, any insurance money, excess proceeds and other
sums recoverable with respect to the Vessel shall be paid to the Mortgagee and
held in escrow until such time as all Obligations are paid or the Mortgagee has
no further obligation to extend credit under the Credit Agreement.
2.8 Insurance. The Mortgagor will obtain and maintain insurance with
respect to the Vessel as required by the terms of the Preferred Ship Mortgage
dated as of October 15, 1998, in favor of the Mortgagee individually and as
agent for certain lenders (the "Prior Mortgage").
2.9 Operation and Maintenance of Vessel. The Mortgagor will operate or
take all actions necessary to cause the Vessel to be operated in full compliance
with (a) each applicable law, treaty, convention, order, rule or regulation of
the United States, any state or any other jurisdiction (foreign or otherwise)
wherein operated or any department or agency thereof, including without
limitation the Federal Maritime Commission, the U.S. Maritime Administration,
the United States Department of Transportation, the United States Coast Guard,
the Bureau of Customs, the United States Department of the Treasury and the
Federal Communications Commission. The Mortgagor will not remove the Vessel from
the limits of the United States except in the ordinary course of Mortgagor's
"gaming cruises to no-where" and subsequent return to the limits of the United
States. The Mortgagor will at all times and at its own cost and expense maintain
and preserve the Vessel in good condition, working order and repair, ordinary
wear and tear excepted, and will cause the Vessel to be kept fully equipped and
such equipment to be kept in good condition, working order and repair, ordinary
wear and tear excepted; provided, however, that Mortgagor shall make no
structural changes or alterations in the Vessel in excess of $25,000 without the
prior written consent of Mortgagee in each instance.
2.10 Creation of Liens. Neither the Mortgagor nor any other Person
(including without limitation any master or charterer of the Vessel) has or
shall have any right, power or authority to suffer, create, incur or permit to
be placed or imposed upon the Vessel, or any part thereof, or any of its cargo,
freights, profits or hire, any lien whatsoever other than (a) the lien of this
Mortgage or other liens in favor of Mortgagee or permitted under the loan
agreement dated October 15, 1998, (b) liens for damages arising out of tort, (c)
liens for crew's wages, (d) liens for general average or salvage (including
contract salvage), (e) maritime and other liens for repair, services, and
supplies to the Vessel arising in the ordinary course of business; provided,
however, that any permitted lien for repairs, services or supplies under
Subsection (e) above shall be subject and subordinate to the lien of this
Mortgage and further provided, however, that the Mortgagor shall, no later than
20 days after
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they become due, pay, satisfy or discharge any and all claims which, if unpaid,
might constitute or become liens or charges upon the Vessel, and any liens or
charges which may be levied against or imposed upon the Vessel, or (f) the Prior
Mortgage.
2.11 Requisition of Title to Vessel. In the event that title or
ownership of the Vessel shall be requisitioned, purchased or taken by any
government of any country or any agent thereof, the lien of this Mortgage shall
be deemed to attach to the claim for compensation and, to the extent available
after satisfaction of the requirements of the Prior Mortgage, the compensation,
purchase price, reimbursement or award shall be payable to the Mortgagee. The
Mortgagor shall promptly execute and deliver such documents, if any, and shall
promptly do and perform such acts, if any, as in the opinion of the Mortgagee
may be necessary or useful to facilitate or expedite the collection by the
Mortgagee of such compensation, purchase price, reimbursement or award.
2.12 Notice of Loss or Adverse Claim. In the event of (a) the actual
total loss of the Vessel (b) any requisition of the use of or title to, or
seizure or forfeiture of, the Vessel by any governmental authority or any other
party, or the attachment, levying upon, filing of an action in rem against,
detention, sequestration or taking into custody of the Vessel in connection with
any proceeding, (c) any marshal's or other sale of the Vessel, or (d) any
casualty, accident or damage to the Vessel involving an amount in excess of
$25,000, Mortgagor shall forthwith give notice by letter and telecopy to the
Mortgagee.
2.13 Copies of Mortgage and Notice. Mortgagor shall carry, or cause to
be carried, a certified copy of this Mortgage and of any amendments and
supplements hereto, or assignments hereof, with the Vessel's documents and on
board the Vessel with the ship's papers and will exhibit the same or cause the
same to be exhibited, on demand, to any Person having business with the Vessel
and to any representative of the Mortgagee. Unless otherwise approved by the
Mortgagee, a notice reading as follows, printed in plain type of such size that
it shall cover a space not less than six inches wide by nine inches high,
protected from exposure to the elements, shall be kept prominently displayed in
the wheelhouse and in the Captain's cabin on the Vessel:
Notice of Mortgage
This Vessel is covered by a Preferred Ship Mortgage from PRINCESA
PARTNERS, the Mortgagor to The National City Bank of Evansville, the
Mortgagee."
2.14 Further Action. From time to time Mortgagor shall, and the
Mortgagee may on behalf of Mortgagor, execute and deliver such other and further
instruments and assurances and take such other actions as in the opinion of
Mortgagee's counsel may reasonably be required to subject the Vessel more
effectually to the lien hereof and to the payment of the Obligations and for
operation of the Vessel as herein provided, and (in case of an Event of Default)
to effectuate sales as provided in Article III hereof
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ARTICLE III
DEFAULT
3.1 Events of Default. The occurrence of any of the following events
shall constitute an event of default (an "Event of Default):
(a) An Event of Default as defined therein shall occur under the Loan
Agreement;
(b) The Mortgagor shall fail to perform any covenant herein contained.
3.2 Remedies. If an Event of Default shall have occurred and be
continuing, then the Mortgagee may, in every case and concurrently or
separately:
(a) Exercise any or all remedies available to Mortgagee under the Loan
Agreement, including without limitation acceleration of payment of all
Obligations and termination of any obligation to advance additional monies to
Mortgagee;
(b) Exercise all the rights and remedies provided (i) under this
Mortgage; (ii) in foreclosure and otherwise given to mortgagees by the
provisions of the Ship Mortgage Act and acts amendatory thereof and
supplementary thereto; and (iii) to a secured party when a debtor is in default
under a security agreement by the Indiana Uniform Commercial Code;
(c) Exercise any other right or remedy provided by law or agreement,
including without limitation the right to recover deficiency or other judgment
for any amount due under the Loan Agreement or hereunder;
(d) Take and enter into possession of the Vessel, at any time, wherever
the same may be, without legal process and without being responsible for loss or
damage, and the Mortgagor or other person in possession forthwith upon demand of
the Mortgagee shall surrender to the Mortgagee possession of the Vessel and the
Mortgagee may, without being responsible for loss or damage, hold, lay up,
lease, charter, operate or otherwise use the Vessel for such time and upon such
terms as it may deem to be for its best advantage, accounting only for the net
profits, if any, arising from such use of the Vessel and charging upon all
receipts from the use of the Vessel or from any sale thereof or from the
exercise of any of the powers conferred by subparagraph (e) next following, all
costs, expenses, charges, damages or losses by reason of such use and with the
right to dock the Vessel free of charge at the Facilities (or elsewhere at
Mortgagor's expense);
(e) Demand, collect, receive, compromise and xxx for, so far as may be
permitted by law, in the name of the Mortgagor, all earnings, revenues, income
and profits of the Vessel, all amounts due from insurers under any insurance
thereon as payments of losses or as return premiums or otherwise, all salvage
awards and recoveries, all 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
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the same, and to endorse and accept in the name of the Mortgagor all instruments
in writing with respect to the foregoing, and the Mortgagor does hereby
irrevocably appoint the Mortgagee the true and lawful attorneys-in-fact of the
Mortgagor, upon the happening of an Event of Default, to do all said acts; and
(f) Take and enter into possession of the Vessel at any time, wherever
the same may be, without legal process and, if it seems desirable to the
Mortgagee and without being responsible for loss or damage, sell the Vessel upon
such terms and conditions as the Mortgagee may determine, free from any claim of
or by the Mortgagor, at a public sale or sales after advertisement or at a
private sale or sales after notice to the Mortgagor, at any place as the
Mortgagee may specify and in such commercially reasonable manner as the
Mortgagee may deem advisable.
In any suit to enforce its rights, powers or remedies, the Mortgagee
shall be entitled as a matter of right (i) to the appointment of a receiver or
receivers of the Vessel and the earnings thereof with full rights and powers to
use and operate the Vessel, and (ii) to a decree ordering and directing the sale
and disposition of the Vessel. The Mortgagee may become the purchaser at the
said sale, and the Mortgagee shall have the right to credit on the purchase
price any and all sums of money due to the Mortgagee hereunder.
Each and every right and remedy, herein given shall be cumulative and
in addition to every other remedy given hereunder or otherwise existing. The
exercise of any right or remedy shall not be construed to be a waiver of the
right to exercise at the same time or thereafter any other right or remedy. No
waiver, delay or omission by the Mortgagee in the exercise of any right or
remedy accruing upon any Event of Default shall impair at such right or remedy
or be construed to be a waiver of any such Event of Default or to be any
acquiescence therein.
3.3 Application of Moneys. The proceeds of any judicial or other sale
of the Vessel and the net earnings from any management, charter, lease,
operation or other use of the Vessel, under any of the powers specified in
Section 3.2, together with the proceeds of any insurance, claim for damages, or
judgment and any other moneys received from or for the account of the Mortgagor
pursuant hereto or otherwise shall be applied as follows:
First: To the extent required, in the manner required by the terms of
the Prior Mortgage.
Second: To the payment of all expenses and charges including the
expenses of any sale, the expenses of any retaking, attorneys' fees hereunder,
court costs, and any other expenses or advances made or incurred by the
Mortgagee in the protection of its rights or the pursuance of its remedies
hereunder or caused by Mortgagor's default hereunder or under the Loan
Agreement, including advances made under Section 3.4 hereof, with interest at
the Default Rate and, if and to the extent so determined by the Mortgagee, to
the payment of, or to provide adequate indemnity against, liens claiming
priority over or equality with this Mortgage.
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Third: To the payment of the Obligations, including accrued interest to
the date of such payment, in any order the Mortgagee may determine.
Fourth: To the payment of any surplus thereafter remaining to the
Mortgagor or to whomsoever shall be entitled thereto, subject to set-off in
favor of Mortgagee for any other indebtedness of Mortgagor.
In the event that the proceeds are not sufficient to pay the amounts
specified in paragraphs "First" through "Third" above, the Mortgagee shall be
entitled to collect any deficiency from the Mortgagor or any other person
legally liable therefor.
3.4 Advances and Entry by Mortgagee. If the Mortgagor shall default in
the performance or observance of any of the covenants in this Mortgage, the
Mortgagee may, in its discretion, do any act or make any expenditures Mortgagee
deems necessary or appropriate to remedy such default or protect Mortgagee's
rights, including, without limitation of the foregoing, the obtaining of
insurance, the payment and discharge of taxes and liens, entry upon the Vessel
to make repairs (and for that purpose docking and maintaining the Vessel) and
defending suits. The Mortgagor shall reimburse the Mortgagee on demand, with
interest at the Default Rate for any and all reasonable expenditures so made or
incurred and for any and all damages or losses sustained by Mortgagee because of
Mortgagor's defaults. Until the Mortgagor has so reimbursed the Mortgagee for
such expenditures, advances and expenses, the amount thereof shall be a debt due
from the Mortgagor to the Mortgagee, and payment thereof shall be secured by the
lien of this Mortgage.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. Notices permitted or required to be given hereunder shall
be in writing and shall be deemed sufficient if given by registered or certified
mail, postage prepaid, return receipt requested, addressed to the respective
addresses of the parties or at such other addresses as the respective parties
may designate by like notice from time to time. Notices so given shall be
effective upon the earlier of (a) receipt by the party to which notice is given,
or (b) on the fifth (5th) business day following the date such notice was
deposited in the United States mail. Any notice to the Mortgagee shall be
addressed to:
The National City Bank of Evansville
00 X.X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Executive Vice President
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Notices to the Mortgagor shall be addressed to:
Princesa Partners
c/o Goldcoast Entertainment Cruises, Inc.
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxx Xxxx
with a copy to:
Conami, Inc.
0000 Xxxx Xxxxxx
Xxxxx Xxxx, XX
Attention: Xxxxx Xxxx
4.2 Other Security. This Mortgage is given to secure the Obligations in
addition to other security and/or guaranties that may now or hereafter secure
the Obligations. The Mortgagee shall have no duty to exercise its rights or
remedies under either this Mortgage or any other security or guaranty in any
particular order, and the Mortgagor waives any right to require any marshalling
of assets.
4.3 Invalidity of Any Provision. If any provisions hereof shall be held
invalid or unenforceable according to law, the remaining provisions hereof shall
not be affected thereby and shall continue in full force and effect.
4.4 Successors and Assigns. All the covenants, stipulations, promises
and agreements contained in this Mortgage shall bind and inure to the benefit of
the Mortgagor and the Mortgagee and their respective successors and assigns;
provided, however, that nothing in this Section shall be deemed to permit any
sale or transfer of the Vessel otherwise prohibited hereunder.
4.5 No Waiver. No provision of this Mortgage or any other document and
none of the actions or omissions to act by the Mortgagee contemplated thereby
shall be deemed to or shall constitute a waiver by the Mortgagee of the
preferred status of this Mortgage or of any of the benefits, privileges or
provisions given by the Ship Mortgage Act.
4.6 Governing Law. This Mortgage shall be construed in accordance with
the laws of the State of Indiana and the general maritime law; provided,
however, that the parties shall be entitled to all rights conferred by any
applicable federal statute, rule or regulation. Mortgagor hereby submits to the
personal jurisdiction of the federal and state courts located in the State of
Indiana in respect of all matters relating to this Mortgage.
4.7 Amount and Maturity Date of Mortgage. The total amount of this
Mortgage is $500,000 plus interest and performance of Mortgage covenants, the
discharge amount is the same as the total amount and the maturity date of the
Note is March 1, 2001.
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IN WITNESS WHEREOF the Mortgagor has caused this instrument to be
executed in its name by as duly authorized officer as of the date above written.
In Presence of -
PRINCESA PARTNERS
By CONAMI, INC., Its General Partner
By
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Its President
State of South Dakota)
) ss.
County of Xxxxxxxxxx )
The foregoing instrument was acknowledged before me this _____________ day of
___________ 2000, by ___________________________ the _________________________
of CONAMI, INC., a Florida corporation, a general partner of PRINCESA PARTNERS,
a Florida general partnership, on behalf of the partnership.
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Notary Public
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