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EXHIBIT 10.7
CHARTER AGREEMENT
THIS CHARTER AGREEMENT ("Charter") is made and entered into as of the
17th day of August, 1995 by and among NEW YORKER ACQUISITION CORPORATION, a
Delaware corporation (hereinafter referred to as the "Owner"); BARDEN-DAVIS
CASINO, L.L.C., an Indiana limited liability company (hereinafter referred to
as the "Charterer"); and PRESIDENT CASINOS, INC. ("Guarantor"), a Delaware
corporation and the holder of all of the issued and outstanding capital stock
of President Riverboat Casino - New York, Inc., a Delaware corporation and the
holder of all of the issued and outstanding capital stock of Owner.
WITNESSETH:
WHEREAS, the Owner is the owner of the casino gaming vessel,
"President Casino V" U.S.O.C. No. 538911 (together with all improvements,
furniture, fixtures and equipment (the "Equipment") listed or generally
described on Schedule 1(d) hereto, the "Vessel");
WHEREAS, the Charterer desires to charter the Vessel from the Owner,
and the Owner desires to charter the Vessel to the Charterer, on the terms and
conditions set forth in this Charter; and
WHEREAS, Guarantor has agreed to guaranty Owner's obligations under
this Charter;
NOW, THEREFORE, in exchange for the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
SECTION 1. SECURITY DEPOSIT; DELIVERY AND ACCEPTANCE; EQUIPMENT.
Owner does hereby agree to furnish and charter to the Charterer, and
Charterer does hereby agree to hire and charter from the Owner, under the terms
and conditions set out in this Charter, the Vessel.
(a) Within five (5) days following written notice from
Charterer to Owner requesting delivery of the Vessel ("Delivery Notice"),
Charterer shall deposit the amount of $250,000 (the "Security Deposit"), in
escrow (the "Escrow Account"), pursuant to the terms of an escrow agreement in
form and substance reasonably satisfactory to Owner and Charterer (the "Escrow
Agreement") as security for the performance of Charterer's obligations
hereunder, including, without limitation, Charterer's obligation to redeliver
the Vessel to the Owner in as good condition and working order (ordinary wear
and tear excepted) as when it is first delivered to Charterer pursuant to
Section 1(b) hereof. The Security Deposit, less any amounts deducted therefrom
in accordance with the terms of this Charter, shall be paid to the Charterer
pursuant to the terms of the Escrow Agreement within thirty (30) days after the
Vessel is redelivered to the Owner in accordance with Section 12 hereof.
(b) (i) Attached hereto as Schedule 1(b) is a schedule of
the improvements, with estimated costs, which Owner shall make to the Vessel,
at Owner's cost, in order to meet the requirements for the Vessel contained
herein (the "Pre-Charter
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Alterations"). Schedule 1(b) also contains a timetable for completion
of the Pre-Charter Alterations. Owner shall cause work on the Pre-Charter
Alterations to commence within fifteen (15) days of receipt of the Delivery
Notice. Within thirty (30) days of receipt of the Delivery Notice, Owner shall
furnish Charterer with a schedule of contracts to complete the Pre-Charter
Alterations.
(ii) Unless the Owner and the Charterer otherwise agree, the
Vessel, outfitted with the equipment as set forth on Schedule 1(d) hereto, with
all Pre-Charter Alterations, and Changes (as defined in clause (iii)
hereinbelow), completed and in a condition satisfying Owner's representations
and warranties set forth in the first sentence of Section 1(c) below
("Seaworthy Condition") and all other representations and warranties of Owner
contained herein regarding the condition of the Vessel on the date of delivery,
shall be tendered for delivery by the Owner to the Charterer afloat at Gary,
Indiana (the "Gaming Site"), subject to weather conditions, within three (3)
weeks after the Vessel ready for move date set forth in Schedule 1(b).
(iii) Both prior to commencement of the Pre-Charter Alterations and
during the process of completing this work, Charterer shall be entitled to have
its representatives, including its Naval Architects, inspect and survey the
Vessel, its seaworthiness and the work in completing the Pre-Charter
Alterations, and Charterer shall be entitled to request a change to the
Pre-Charter Alterations ("Changes"). All such inspections and Changes shall be
at Charterer's sole cost and expense. All Changes shall be subject to Owner's
prior approval, which shall not be unreasonably withheld. Owner shall have the
right to condition its approval to any Change upon Charterer's agreement to
remove such item at the time of Charter termination (provided Owner notifies
Charterer in writing at the time of approval). Any Change as to which approval
is not so conditioned shall be referred to as a "Permanent Change." As a
condition to making any Changes, Charterer shall deposit into the Escrow
Account an amount equal to 150% of the proposed additional cost of the Changes
and the timetable set forth in Schedule 1(b)(i) shall be amended, if necessary,
to accommodate any Changes. Any amounts so deposited in the Escrow Account
shall be withdrawn to pay for Changes. Upon completion of and payment in full
of all Changes, any of such amount remaining in the Escrow Account, in excess
of the Security Deposit, shall be delivered to Charterer.
(iv) Owner shall cause the Pre-Charter Alterations and Changes to be
made in a workmanlike manner, such that the seaworthiness and value of the
Vessel shall not be impaired. The Pre-Charter Alterations and Changes shall
otherwise be effected in a manner that meets the Charterer's approval, which
approval shall not be unreasonably withheld. In the event that Owner is in
breach of its obligations under this Section 1(b) (other than such breaches
which are the result of matters beyond the control of Owner, including without
limitation, delays of contractors and inclement weather), and fails to cure
such breach within seven (7) days of written notice thereof, Charterer shall
have the right, but not the obligation, to deliver written notice to Owner that
it elects to control the performance of all Pre-Charter Alterations and
Changes. In such event, (i) Charterer shall cause the Pre-Charter Alterations
and Changes to be made in a workmanlike manner, such that the seaworthiness and
value of the Vessel shall not be impaired and otherwise shall be effected in a
manner that meets Owner's approval, which approval, shall not be unreasonably
withheld and (ii) Owner shall execute and
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deliver a limited power-of-attorney in order to enable Charterer to
complete the Pre-Charter Alterations and Changes in accordance with this
Section 1(b). Owner shall have the right to inspect and cause Charterer to
make reasonable modifications to all Pre-Charter Alterations, including all
plans and specifications relating thereto. Upon completion of the Pre-Charter
Alterations, Owner or Charterer, as the case may be, shall notify the other of
such completion.
(v) Charterer agrees to execute and deliver to Owner a Certificate
of Acceptance in the form attached hereto as Exhibit ("A") hereto (the
"Certificate of Acceptance") on the date of acceptance by the Charterer of the
Vessel at the Gaming Site (the "Acceptance Date"), which date shall be no more
than five (5) days following the tender of the Vessel at the Gaming Site. The
earlier of (i) the date thirty (30) days after the Pre-Charter Alterations and
Changes are completed and (ii) the Acceptance Date is hereinafter referred to
as (the "Commencement Date"). On the Commencement Date, Charterer shall
deliver to Owner immediately available funds in the amount of the Charter Hire
(as described in Section 3 hereof) payable hereunder in respect of the period
beginning on the Commencement Date and ending on the last day of the first full
month of the Charter Period (as defined in Section 2 hereof).
(vi) Owner shall deliver the Vessel afloat at the Gaming
Site no later than ninety (90) days after receipt of Delivery Notice, subject
to a reasonable extension to account for any contractor delays or weather
conditions beyond Owner's control which make delivery by such ninetieth (90th)
day impracticable. Owner shall be solely responsible for the cost and expense
of transportation of the Vessel to the Gaming Site and for making all
arrangements in connection therewith; provided, however, if this Charter is
terminated by Charterer pursuant to Section 27 below or as a result of an Event
of Default prior to the one (1) year anniversary of the Commencement Date,
Charterer shall reimburse Owner for the cost and expense incurred by Owner in
connection with such transportation from Erie, Pennsylvania. Unless the
parties hereto shall otherwise agree, if the Delivery Notice is not given
before April 1, 1996, this Charter shall terminate.
(c) Owner represents and warrants that as of the Acceptance Date
the Vessel will be in all material respects seaworthy, in good working order
and repair and without defect or inherent defect in title, seaworthiness or
design. Acceptance by the Charterer of the Vessel under this Charter will
constitute conclusive evidence, as between Owner and Charterer (and their
affiliates), that the Vessel satisfies the criteria set forth in this Section
1(c) whether or not any defect therein is discoverable by Charterer as of the
date of such acceptance; provided that nothing herein contained shall be
construed as a waiver of any rights that either Owner or the Charterer may have
against any other person. Except as set forth in this Section 1(c) and Section
6(b) below, Owner makes no representation or warranty whatsoever as to the
condition, suitability for the service intended and/or fitness of the Vessel
for a particular purpose. If the Charterer does not accept delivery of the
Vessel upon tender of the Vessel by the Owner at the Gaming Site, the Owner
shall be solely responsible for the cost and expense of removal of the Vessel
to such site as the Owner may determine; provided, however, that in addition to
such other remedies to which the Owner may be entitled hereunder or at law or
in equity, the Owner shall be entitled to retain the Security Deposit, unless
the Charterer can properly document that the condition of the Vessel failed in
any material respect to meet the standards as to which the Owner has made
representations and warranties pursuant to this Section 1(c) and Owner shall
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have failed to correct such defects or to provide adequate assurances that it
will correct such defects, at Owner's sole cost and expense, as soon as
practicable thereafter.
(d) For purposes of this Charter, the Equipment listed on Schedule
1(d) hereto is specifically included as part of the Vessel.
SECTION 2. CHARTER PERIOD.
The charter period for the Vessel (the "Charter Period") shall commence
on the Commencement Date in accordance with Section 1(b) hereof and shall
continue until the earlier of (i) one hundred eighty (180) days following
receipt by the Owner of a written notice of termination from Charterer and (ii)
the last day of the month during which the fifth anniversary of the
Commencement Date occurs (the "Charter Expiration Date"). Upon the Charter
Expiration Date, the Vessel shall be returned to Owner in accordance with the
terms of Section 12 hereof. Solely for purposes of enforcing the Charterer's
obligations hereunder, including, without limitation, its obligation to
maintain insurance in accordance with Section 5 and to indemnify the Owner in
accordance with Section 7, the Charter Period shall be extended to include the
period of time, if any, beginning on the Charter Expiration Date and ending on
the date on which the Vessel is properly redelivered in accordance with Section
12.
SECTION 3. CHARTER HIRE.
(a) The Charter Hire owed by the Charterer to the Owner with
respect to the Vessel throughout the Charter Period shall be equal to the sum
of $125,000 (plus applicable sales tax) for each month during the period
beginning on the Commencement Date and ending on the Charter Expiration Date
(subject to adjustment, on an annual basis, in the case of Charter Hire payable
following the twenty-fourth monthly payment due hereunder, so that such Charter
Hire will be equal to the fair market rental value of the Vessel determined
from time to time in accordance with Exhibit B hereto). The Charter Hire owed
by the Charterer to the Owner for any partial month during the Charter Period
shall be equal to the then monthly Charter Hire multiplied by a fraction the
numerator of which is the number of days in such partial month and the
denominator of which is the total number of days in such month. The Charter
Hire payable pursuant to this Section 3 shall be exclusive of, and in addition
to (i) any and all expenses required to be paid by Charterer hereunder,
including, without limitation, any sales or excise taxes payable by Charterer
pursuant to Section 14 hereof and (ii) any and all expenses incurred by Owner
as a result of Charterer's failure to satisfy its obligations hereunder,
including without limitation, expenses incurred to maintain or repair the
Vessel or to obtain or maintain insurance as required by the terms of this
Charter, which expenses shall be paid in full not more than fifteen (15) days
after Owner provides notice to Charterer of the incurrence by Owner of such
expenses, accompanied by adequate proof of payment, if applicable.
(b) Except as otherwise provided in Section 1(b) hereof, all
payments of Charter Hire due under this Charter shall be paid by the Charterer
not less than three (3) business days in advance of the month in respect of
which it is owed to the Owner at its address set forth in Section 17 below or
at such other place or address as the Owner may from time to time specify to
the Charterer in writing. All payments of Charter Hire shall be made
punctually
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by the Charterer without need of invoice, notice or demand by the Owner and,
except as provided in Sections 1(b), 4(e) and 6(a)(vii), shall be free and
clear of, and without deduction for, or on account of, any and all present or
future taxes, levies, imposts, deductions or other charges whatsoever imposed
or levied by any governmental or taxing authority wheresoever located.
(c) This Charter is a net charter. Subject to Sections 1(b), 4(e)
and 6(a)(vii), (i) all payments of Charter Hire and other payments required to
be made by Charterer by the terms of this Charter shall be absolute and
unconditional, (ii) no payments to be made by the Charterer under this Charter
shall be subject to any abatement, reduction, adjustment, right to set-off,
counterclaim, suspension, deferment, recoupment or defense due to any present
or future claims of the Charterer against the Owner under this Charter or
otherwise, or against any other party, or for any other reason whatsoever, nor
shall the Charterer be entitled to retain any interest in or with respect to
Charter Hire which has already been paid to the Owner or to assert any right to
any refund or adjustment in the event of termination of this Charter or
otherwise and (iii) the Charterer shall have no right to terminate this Charter
before the end of the Charter Period, or be released, relieved or discharged
from the obligation or liability to make all payments due hereunder for any
reason whatsoever. Each payment of Charter Hire hereunder, as well as any other
amount required to be paid by Charterer hereunder, shall be final and not
subject to any retained interest. Notwithstanding anything herein to the
contrary, Charterer shall have no obligation to pay the Charter Hire for any
period during which the Vessel is not available for use by Charterer for
Charterer's operations as contemplated by this Charter as a result of an action
by a holder of a Non-Charterer Lien (as hereinafter defined) on the Vessel.
SECTION 4. TITLE TO AND USE OF THE VESSEL; DOCUMENTATION
OF THE GAMING VESSEL; NO LIENS.
(a) The Owner retains full legal title to the Vessel
notwithstanding its delivery to and possession and use by the Charterer
hereunder, and Charterer obtains no rights in the Vessel other than those set
forth herein. So long as no Event of Default (as defined herein) shall have
occurred and be continuing, Charterer shall have exclusive possession, control
and use of the Vessel without hindrance or molestation by the Owner during the
Charter Period; provided, however, that Owner shall have the right to have a
representative or representatives board the Vessel for purposes of inspecting
the Vessel in order to monitor Charterer's compliance with Charterer's
obligations under this Charter. So long as no Event of Default shall have
occurred and be continuing, Owner's right to conduct inspections pursuant to
the proviso set forth in the immediately preceding sentence shall be limited to
such times during regular business days as are reasonably convenient to
Charterer (following reasonable notice to Charterer) and shall be at Owner's
sole cost and expense. Charterer shall, at its own expense, operate, supply
and maintain the Vessel. Charterer shall pay all port charges, all cleaning,
fleeting and shifting charges and each and every other expense and cost
incident to the use and operation of the Vessel, and shall pay any and all
fines or penalties levied against the Vessel during the Charter Period by any
governmental authority, it being understood and agreed that Charterer shall
assume all costs of operation. As more particularly set forth in Section 13
below, Charterer will not make any modifications to the Vessel (structural or
otherwise) without the prior express written approval of Owner, which approval
may not be unreasonably withheld, and any
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modifications that are made shall not impair the seaworthiness or value
of the Vessel; provided, however, that Charterer shall have the right to make
the Pre-Charter Alterations and Changes in accordance with the terms of Section
1(b) above if Owner shall fail to cure a default as provided therein. Unless
otherwise agreed (and subject to the provisions of Section 13 below), any
structural modifications that are made to the Vessel shall become the property
of Owner, and shall be provided to Owner upon redelivery of the Vessel.
Notwithstanding anything herein to the contrary, Owner shall be permitted to
place a preferred ship mortgage or other lien or encumbrance on the Vessel;
provided, however, that the mortgagee or lien holder shall have executed and
delivered to the Charterer a non-disturbance agreement in form and substance
reasonably acceptable to the Charterer. Subject to the terms of the
non-disturbance agreement referred to in the immediately preceding sentence,
Charterer agrees that this Charter shall be subject and subordinate to any such
mortgage, lien or encumbrance and that it will execute, upon the request of
Owner, any and all documents reasonably required by the mortgagor or lien
holder in connection with the transaction giving rise to such mortgage, lien or
encumbrance.
(b) The Vessel shall be employed at the Gaming Site in such manner
as the Charterer shall determine, so long as such employment is not
inconsistent with the physical characteristics of the Vessel (as modified in
accordance with Schedule 1(b) hereto). In no event shall the Vessel be removed
from the Gaming Site following delivery of the Vessel thereto by the Owner,
except (i) upon redelivery to the Owner in accordance with the terms hereof,
(ii) in the ordinary course of Charterer's business operations consistent with
the manner in which the Vessel may be used in accordance with Section 11 below,
(iii) as required for inspections, maintenance and repairs undertaken in
accordance with this Charter or (iv) as the Owner shall otherwise agree in
writing.
(c) Owner shall obtain, and throughout the Charter Period shall
maintain, the documentation of the Vessel in the Owner's name under the laws
and flag of the United States of America. Charterer will, at its expense,
execute such documents and furnish such information as Owner may reasonably
require to enable Owner to obtain and maintain such documentation. Neither
Owner nor Charterer will permit to be done anything which can or might
injuriously affect such documentation.
(d) Neither the Charterer, nor any of its officers, agents or
employees, nor anyone acting on behalf of Charterer nor the master or any other
officer or crew member of any towboat towing the Vessel, shall have any right,
power or authority to create, incur, suffer or permit to be placed or imposed
upon or asserted against the Vessel any maritime or other lien (other than any
maritime lien arising by operation of law during the Charterer's ordinary
course of business in connection with the operation of the Vessel, so long as,
and only to the extent that, the obligation giving rise to such maritime lien
is satisfied in a timely manner and is otherwise not delinquent and liens
against Owner), libel, mortgage, encumbrance, pledge, lease, security interest,
claim or charge whatsoever, or to incur any debt, obligation or charge upon the
credit of the Vessel or to otherwise pledge or place any encumbrance on the
Vessel (hereinafter referred to as a "Lien" and collectively as "Liens").
Charterer will promptly notify the Owner of any Lien that shall attach to any
of the Vessel, or part thereof, or interest therein, upon the Charterer's
learning of such attachment, together with full particulars thereof.
Notwithstanding the foregoing, in the event any Lien (other than a
"Non-Charterer Lien," as
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defined in Section 4(f) hereof) shall be placed upon the Vessel during
the Charter Period, or after redelivery, or in the event the Vessel shall be
levied against or taken into custody by virtue of any legal proceedings in any
court, based upon a claim or cause of action (other than a claim or cause of
action against Owner which is not related in any manner to Charterer's
operation hereunder or the use of the Vessel by Charterer), valid or invalid,
founded or unfounded, alleged to have arisen during the term of this Charter,
Charterer shall, at its sole cost and expense, as soon as practicable, but in
any event within fifteen (15) days thereof, cause the Vessel to be released
and/or the asserted Lien to be discharged.
(e) Owner will promptly notify Charterer of any Non-Charterer Lien
filed against, or otherwise encumbering, the Vessel. Such notice shall contain
a brief description of the nature of the Non-Charterer Lien. In the event any
Non-Charterer Lien (other than those permitted under Section 4(a) and those
which otherwise do not affect this Charter) shall be placed upon the Vessel, or
in the event the Vessel shall be levied against or taken into custody by virtue
of any legal proceedings, based upon a claim or cause of action against Owner
or claims or causes of action other than those arising out of (i) the operation
of the Vessel by Charterer, or (ii) any act or failure to act by the Charterer
in relation to the Vessel or the use or operation thereof, valid or invalid,
founded or unfounded, Owner shall, at its sole cost and expense, as soon as
practicable, but in any event within fifteen (15) days thereof, cause the
Vessel to be released and/or the asserted lien to be discharged. In the event
that a foreclosure proceeding is commenced by the holder of the Non-Charterer
Lien, Charterer may, but shall not be obligated to, satisfy the obligation
giving rise to the Non-Charterer Lien (but only to the extent the holder of
such Non-Charterer Lien permits Charterer to make such payment) upon ten (10)
days advance written notice from Charterer to Owner of its intention to make
such payment. Any payment made by Charterer pursuant to this Section 4(e), as
well as any payment made by Charterer for any fine or penalty for which Owner
is responsible under Section 6(a)(vii) hereof, shall be credited against the
Charter Hire otherwise payable under this Charter or, at Charterer's election,
the Charterer shall be entitled to be reimbursed by the Owner for any payments
of Non-Charterer Liens made by Charterer under this Section 4(e), within
fifteen (15) days of receipt of written notice by Owner of such payments
accompanied by satisfactory proof of payment.
(f) For purposes of this Charter, Non-Charterer Lien is defined as
a lien encumbering the Vessel which arises from any transaction or occurrence
not caused by or related to (i) any action or inaction on the part of Charterer
or (ii) Charterer's operations or Charterer's use or possession of the Vessel,
and includes maritime liens which arose prior to the Commencement Date.
SECTION 5. INSURANCE. (a) Charterer shall obtain and maintain during
the Charter Period, at Charterer's sole cost and expense, insurance in such
amounts covering the Vessel against such risks as Owner shall reasonably
determine to be desirable to fully protect its economic interests in the Vessel
(which amounts shall in no event be less than $32,000,000) and shall obtain and
maintain during the Charter Period at Charterer's sole cost and expense,
general liability, breach of warranty, marine hull, marine protection and
indemnity and such other insurance policies with respect to the Vessel and the
operations to be conducted on the Vessel, and in such amounts, as Owner shall
deem necessary or appropriate; provided, however, in no
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event shall the amount of general liability and marine protection and indemnity
insurance be less then $100,000,000 each. Both the Owner and Charterer shall
be named as insureds with waiver of subrogation under the general liability,
breach of warranty and marine protection and indemnity insurance policies (and
such other policies as the Owner shall deem appropriate) and as loss payees
under all other insurance policies so obtained and maintained. Charterer's
responsibility for the cost of the insurance required to be obtained and
maintained under this Section 5 shall commence on the Commencement Date.
(b) The Charterer shall carry, at its own expense, such workmen's
compensation insurance as shall be required under applicable law, with an
endorsement for United States longshoremen and harbor workers coverage, if
applicable, in an amount of not less than $50,000,000, if available, or such
lesser amount which is available or such other amount as Owner shall determine
to be prudent, in its sole discretion.
(c) The Charterer will not do any act nor cause to occur any act
whereby any insurance required herein shall or may be suspended, impaired or
defeated, and will not cause the Vessel to: (i) be operated in any illegal
manner; (ii) be operated except as licensed by the appropriate governmental
authorities; (iii) carry any cargo not permitted by applicable law, regulation
or rules of the insurers or governmental authorities; or (iv) be operated other
than as contemplated in Section 11 hereof and, in particular, in a manner or in
a location where it will not be covered under the insurance policies then in
effect.
(d) Each insurance policy obtained and maintained hereunder shall
be issued by an insurer of recognized standing in the maritime insurance
industry, and such insurer shall have been approved by the Owner, which
approval shall not be unreasonably withheld. Copies of all insurance policies
required hereunder shall be provided to the Owner sufficiently prior to the
payment of any premium thereunder to allow Owner to review and approve such
policies, which approval will not be unreasonably withheld. Charterer shall
provide Owner with such evidence as Owner may from time to time request in
order for it to determine that the insurance required to be obtained and
maintained hereunder continues to be in full force and effect. As between
Owner and Charterer (and their affiliates), Charterer shall be responsible for
any and all costs and expenses for which insurance coverage is not provided or
for which insurance coverage is inadequate (whether because of a deductible or
any other failure of the insurance policies to provide coverage).
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) The Charterer hereby represents, warrants and covenants that:
(i) The Charterer is a limited liability company duly
organized, validly existing in good standing under the laws of the State of
Indiana with full power to enter into and to pay and perform its obligations
under this Charter. The Charterer is duly qualified to do business and is in
good standing as a foreign corporation in all of the jurisdictions where its
failure to so qualify could adversely affect the conduct of its business or the
performance of its obligations under this Charter;
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(ii) This Charter and all related documents have been
duly authorized, executed and delivered by the Charterer, are enforceable
against the Charterer in accordance with their terms and do not and will not
contravene any provisions of or constitute a default under the certificate of
incorporation or bylaws of the Charterer or any agreement to which the
Charterer is a party or by which it or any of its property is bound;
(iii) There are no suits or proceedings pending or
threatened before any court or governmental body or agency against or affecting
the Charterer which, if decided adversely to its interest, would materially
affect the ability of the Charterer to perform any of its obligations under
this Charter;
(iv) The Charterer is and shall remain a citizen of the
United States of America within the meaning of Chapter 313 of Title 16 of the
United States Code;
(v) The Charterer shall comply with all applicable laws,
regulations, requirements and rules, domestic and foreign, with respect to the
registration, licensing, use, maintenance and operation of the Vessel,
including, without limitation, all applicable laws, rules and regulations
administered by the United States Coast Guard, the Bureau of Customs, the
Treasury Department, the Environmental Protection Agency, the Public Health
Service, the Department of Transportation, the Indiana Gaming Commission and
any other applicable authorities and their successors;
(vi) Charterer shall not (A) cause or permit the Vessel
to be operated in any manner prohibited by law, governmental rule or regulation
or applicable insurance policies, or (B) cause or permit the Vessel to be
engaged in any unlawful trade or activity prohibited by law;
(vii) The Charterer will make any changes or additions to
the Vessel required by any applicable laws or applicable rules or regulations
thereunder provided, however, that prior notice shall have been given to the
Owner and the Owner shall have agreed to such changes or additions (it being
understood that if the Owner shall not agree to such changes it shall be
responsible for any fines or penalties levied as a result thereof and, if such
fines or levies shall materially interfere with Charterer's use of the Vessel,
Charterer may pay such fines or levies and may, in accordance with Section
4(c) hereof, offset such amounts against an equal amount of Charter Hire
otherwise payable under this Charter). Where such compliance requires the
execution and delivery by the Owner of any instruments or the taking of any
other action by the Owner, the Charterer will in a timely manner prepare and
submit to the Owner such instruments and specify in writing to the Owner the
action by it so required. Upon request of the Owner, the Charterer shall
provide the Owner with photostatic copies or originals, if available, of any
such instruments; and
(viii) Charterer shall make the Pre-Charter Alteration and repair and
maintain the Vessel in accordance with Charterer's obligations hereunder and
shall moor the Vessel at the Gaming Site in a safe and responsible manner
consistent with the Vessel's intended use pursuant to Section 11 hereof.
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(b) The Owner hereby represents, warrants and covenants that:
(i) Owner is the owner of a 100% interest in the Vessel, free
and clear of all liens and encumbrances (in addition to any other future
transfer of title to the Vessel, title may be transferred from Owner to
President Riverboat Casino-New York, Inc. or any other affiliate of Guarantor);
(ii) The Vessel is documented with the United States Coast Guard,
being official number U.S.O.C. 538911. The Vessel, at the time of delivery,
will meet ABS classification 10 foot seas within 5 miles of the Lake Michigan
Coast and will be able to be certified by the United States Coast Guard for
carrying 1,900 passengers and crew;
(iii) This Charter and all related documents have been duly
authorized, executed and delivered by Owner and Guarantor, are enforceable
against Owner and Guarantor in accordance with their terms and do not and will
not contravene any provisions of or constitute a default under the
certification of incorporation or bylaws of the Owner or Guarantor or any
agreement to which the Owner or Guarantor is a party or by which they or any of
their property is bound;
(iv) Owner is a corporation duly organized, existing in good
standing under the laws of the State of Delaware with full power to enter into
and perform its obligations under this Charter. The Owner is duly qualified to
do business and is in good standing as a foreign corporation in all of the
jurisdictions where its failure to do so qualify could adversely effect the
conduct of its business or the performance of its obligation under this
Charter;
(v) There are no suits, or proceedings pending or threatened before
any court or governmental body or agency against or affecting the Owner or
Guarantor which, if decided adversely to their interest, would materially
affect the ability of the Owner or Guarantor to perform any of their
obligations under this Charter;
(vi) Owner and Guarantor shall not take any action which would cause
or permit the Vessel to lose her documentation, violate her licenses or
certifications, or otherwise engage in any unlawful trade or activity
prohibited by law; and
(vii) Subject to the other applicable terms of this Charter,
including Section 1(b) above and Section 13 below, Owner and Guarantor
authorize all changes or additions to the Vessel required to meet the terms of
Schedule 1(b), to continue Coast Guard certification, or to meet Owner's
representations, warranties and covenants set forth in this Charter; provided,
however, that all such changes shall be subject to the approval of Owner, which
approval may not be unreasonably withheld.
(viii) The Vessel loaded for gaming, in accordance with configurations
set forth on Schedule 6(b)(viii) will be trimmed in accordance with the naval
architect's calculations on Schedule 6(b)(viii).
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SECTION 7. INDEMNIFICATION.
(a) During the Charter Period, Charterer assumes all risks of
liability for the Vessel and for the use and operation thereof, and for
injuries to or deaths of any persons and/or loss of or damage to any property
arising from or incident to such use or operation of the Vessel. The Charterer
shall defend, indemnify and save harmless the Owner and its affiliates,
successors and assigns, officers, directors and agents and the Vessel from and
against any claim, penalty, cause of action, damage, liability (including
without limitation, any claim for any tax, assessment, excess, levy, duty, fee
or other governmental charge, and, except as otherwise provided in Section
6(a)(vii) hereof, any fine or penalty arising from any violation of any law,
rule or regulation) or expense (including, without limitation, legal fees and
expenses) in any manner arising out of or relating to: the acceptance,
rejection, delivery, possession, chartering, maintenance, use, repair,
operation, or redelivery of the Vessel, or by reason of the condition of the
Vessel, including, without limitation, (x) any loss or any damage to the Vessel
or any equipment, fittings or facilities located thereon; (y) damage to any
other craft or barges or other property belonging to third parties; or (z)
death or injury to any person.
(b) During the Charter Period, subject to Section 4(a), Owner shall
have the obligation of providing Charterer with undisturbed possession of the
Vessel, other than disturbances arising as a result of or related to any action
or failure to act on the part of Charterer. Owner shall defend, indemnify and
save harmless the Charterer and its affiliates, successors and assigns,
officers, directors and agents and the Charterer's right to the use of the
Vessel pursuant to the terms of this Charter against any claim or expense
(including reasonable legal fees) arising out of or relating to a breach by
Owner of its obligation set forth in the first sentence of this Section 7(b).
Notwithstanding anything to the contrary contained in this Section 7(b), except
for Owner's breach of its duties under Section 1(b) hereof, the Owner's
liability to indemnify the Charterer pursuant to this Section 7(b) shall be
limited to (i) the costs of remedying any breach of Owner's obligation to
provide Charterer with undisturbed possession of the Vessel, other than
disturbances arising as a result of or related to any action or failure to act
on the part of Charterer and (ii) Charterer's liability in respect of third
party claims against Charterer arising as a result of a breach of Owner's
obligation to provide Charterer with undisturbed possession of the Vessel,
other than disturbances arising as a result of or related to any action or
failure to act on the part of Charterer (a "Covered Third Party Claim"), and it
specifically does not include any right for indemnification in connection with
any consequential damages other than Charterer's liability to any third party
arising out of a Covered Third Party Claim.
(c) If any action shall be commenced, or any claim shall be
asserted, against a party in respect of which it is entitled to be indemnified
hereunder (the "Indemnitee"), the party from whom indemnification is sought
(the " Indemnitor ") shall be promptly notified to that effect ("Notice") and
shall assume (or assign to its insurer) control of the defense and/or
settlement thereof, including, at the Indemnitor's (or its insurer's) expense,
employment of counsel, and, in connection therewith, the Indemnitee shall
cooperate to make available all pertinent information under its control. Upon
the request of Indemnitee, Indemnitor shall promptly provide all pertinent
information regarding the status of the action or claim to Indemnitee. If the
Indemnitor fails to assume such defense (or assign such defense to the
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Indemnitor's insurer) within fifteen (15) days after Notice, Indemnitee shall
have the right to assume and control such defense. All costs (including
attorneys' fees and costs) of any such defense shall be paid by the Indemnitor
as incurred by the Indemnitee. Any failure to promptly give Notice shall not
result in the forfeiture of rights under this Section 7 (unless and only to the
extent that such delay shall have materially compromised the defense of the
claim), provided that the Indemnitor's liability shall not be deemed to exist
until Notice has been given in accordance with Section 17 hereof.
(d) The indemnities and assumptions of liabilities and obligations
provided for in this Section 7 shall continue in full force and effect for
applicable claims or causes of action arising during the Charter Period and
before redelivery notwithstanding the expiration or other termination of this
Charter until the expiration of the applicable statute of limitations in
respect to claims of that type.
SECTION 8. MAINTENANCE AND REPAIRS.
(a) Prior to the Commencement Date:
Owner shall, at its sole cost and expense, make such repairs and
alterations to the Vessel as are necessary to put the Vessel in Seaworthy
Condition on the Acceptance Date. Except with respect to Owner's representation
set forth in Section 6(b)(ii), Charterer's delivery of the Certificate of
Acceptance in the form attached hereto as Exhibit A shall constitute conclusive
evidence, as between Owner and Charterer (and their affiliates), that the
Vessel is, in all respects, acceptable to the Charterer, and the Owner shall
have no liability to the Charterer for any deficiency in such repairs or
alterations, whether or not discoverable by the Charterer as of the date of
delivery, following Charterer's delivery of such Certificate.
(b) During the Charter Period:
(i) The Charterer shall, at its sole cost and expense,
maintain the Vessel in accordance with good commercial marine maintenance
practices and shall maintain and preserve the Vessel, in as good condition,
working order and repair as when first delivered to the Charterer for service
hereunder (reasonable wear and tear excepted). The Charterer shall, from time
to time, perform all customary, advisable and necessary maintenance of the
Vessel and carry out all necessary or advisable repairs thereto. All
maintenance and repairs of the Vessel shall be undertaken and performed in such
manner and with such frequency as is commensurate with the Vessel's intended
use as set forth in Section 11 hereof.
(ii) The Vessel shall be repaired, dry-docked and cleaned
by the Charterer at its expense whenever necessary to maintain and preserve the
Vessel in accordance with this Section 8(b).
(iii) The Owner (or its agents or authorized representative)
shall have the right but not the obligation, on reasonable notice, to inspect
the Vessel in a reasonable manner and at reasonable times in order to ascertain
whether the Vessel is being repaired and maintained. The Charterer shall also
permit the Owner (or its agents or authorized
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representative) to inspect the Charterer's records with respect to the
maintenance of the Vessel, whenever requested, on reasonable notice.
(c) Notwithstanding anything to the contrary contained herein,
after the Security Deposit has been made and prior to the Acceptance Date,
Charterer shall be permitted to, at its sole cost and expense, dry-dock the
Vessel in order to make such inspections as it deems necessary. Charterer shall
indemnify and hold Owner harmless for any loss, cost, damages or expenses
incurred by Owner relating to such dry-docking. Any such inspection shall be
coordinated to not disrupt the Pre-Charter Alterations and the timelines set
forth on Schedule 1(b) shall be extended by the time taken to perform a
dry-dock inspection.
SECTION 9. DEFAULT.
(a) Each of the following events (each an "Event of Default")
shall constitute Events of Default under this Charter:
(i) Failure to pay in full any Charter Hire, or other sum
of money which the Charterer is obligated to pay to Owner under this Charter,
as and when due and such failure continues for ten (10) days following notice
from Owner; or
(ii) The Charterer shall default in the due observance or
performance of any other covenant, obligation, condition or requirement
undertaken by the Charterer in this Charter and such default is not cured to
the reasonable satisfaction of Owner within thirty (30) days after the date
upon which Charterer receives written notice from Owner of such breach; or
(iii) Charterer shall cease to be a citizen of the United
States for the purpose of operating in the coastwise trade; or
(iv) Charterer shall (i) apply for a consent to the
appointment of a receiver, trustee or liquidator of Charterer or of all or a
substantial part of the assets of Charterer, or (ii) be unable, or admit in
writing its inability, to pay its debts as they mature, or (iii) make a general
assignment for the benefit of creditors, or (iv) be adjudicated a bankrupt or
insolvent, or be dissolved, or (v) file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to the Bankruptcy Code (11 U.S.C.
Sections 101- 1330) or under any similar federal or state law, now or
hereafter in effect, or (vi) file an answer admitting the material allegations
of, or consent to, or default in answering, a petition filed against Charterer
in any bankruptcy, reorganization or insolvency proceeding, or action shall be
taken by Charterer for the purpose of effecting any of the foregoing; or
(v) An order, judgment or decree shall be entered, without
the application, approval or consent of Charterer, by any court of competent
jurisdiction, approving a petition seeking reorganization of Charterer or
appointing a receive, trustee or liquidator of Charterer or of all or a
substantial part of the assets of Charterer, and such order, judgment or decree
shall continue unstayed and in effect for any period of thirty (30) consecutive
days, other than such orders, judgments or decrees which, individually or in
the aggregate, represent
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liabilities of less than $100,000 and which, in Owner's sole judgment, do not
affect the use of the Vessel or Charterer's ability to make required payments
hereunder; or
(vi) Charterer shall be declared to be in default on, or
pursuant to the terms of, (i) any other present or future obligation, including,
without limitation, any other loan, line of credit, revolving credit, guaranty
or letter of credit, reimbursement obligation, or (ii) any other present or
future agreement purporting to convey a lien upon any of the property or assets
of Charterer, other than trade accounts and vendor agreements and any
obligations or agreements which, individually or in the aggregate, represent
liabilities of less than $100,000 and which, in Owner's sole judgment, do not
affect the use of the Vessel or Charterer's ability to make required payments
hereunder; or
(vii) Any property of the Charterer shall be sold for the
satisfaction of any lien thereon or shall be seized and not released within
fifteen (15) days (provided that the Event of Default shall be accelerated to
the date of seizure in the event the Charterer is not proceeding in good faith
and by appropriate proceedings to obtain such release), other than property
which, individually or in the aggregate, is valued at less than $100,000 and
which, in Owner's sole judgment, do not affect the use of the Vessel or
Charterer's ability to make required payments hereunder.
(b) If an Event of Default exists, then in any such case, Owner at
its option may:
(i) Proceed by appropriate court action or actions either
at law, in admiralty or in equity to enforce performance by Charterer of the
applicable duties and obligations of Charterer under this Charter or to recover
from Charterer any and all damages or expenses, including reasonable attorneys'
fees and costs, which Owner shall have sustained by reason of an Event of
Default or on account of Owner's enforcement of its remedies hereunder; or
(ii) By notice in writing to Charterer, terminate this
Charter, whereupon, except as provided below, all rights of Charterer to the
use of the Vessel shall absolutely cease and terminate as though this Charter
had never been made, but Charterer shall redeliver possession of the Vessel to
Owner in accordance with Section 12 hereof and Charterer shall remain liable as
hereinafter provided; and thereupon, Owner may by its agents and without notice
to Charterer retake the Vessel, without prior demand and without legal process,
and for that purpose enter upon the Vessel and take possession thereof, or
require Charterer, at Charterer's sole expense, forthwith to redeliver the
Vessel to Owner in accordance with Section 12 hereof for or by reason of such
entry, redelivery or retaking. Thereafter Owner shall hold, possess and enjoy
the Vessel free from any right of Charterer, or its successors or assigns, to
use the Vessel for any purpose whatever; or
(iii) Pursue any other remedy or remedies which may be
provided under the applicable law, including without limitation, all attorneys'
fees, costs and expenses incurred in enforcing such remedies.
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(c) Upon termination pursuant to Section 9(b), Owner shall have
the right to recover forthwith from Charterer the sum of the following:
(i) all unpaid Charter Hire for the Vessel pro-rated through
and including the date of termination;
(ii) an amount equal to accrued taxes and other amounts payable
hereunder by Charterer with respect to the Vessel; and
(iii) without duplication, all other costs, expenses, losses
and damages incurred or sustained by Owner (including, without limitation, (i)
reasonable attorneys' fees, (ii) any costs and expenses incurred in connection
with placing the Vessel in the condition required by Sections 8(b), 12(a)
and/or 13, and (iii) any unpaid Charter Hire through the Charter Expiration
Date, less amounts, if any, recovered by Owner in mitigating its damages) by
reason of such Event or Default.
(d) Each and every power and remedy hereby specifically given to
Owner shall be in addition to every other power and remedy specifically so
given or now or hereafter existing in admiralty, at law or in equity, and each
and every power and remedy may be exercised from time to time or simultaneously
and as often and in such order as may be deemed expedient by Owner. All such
powers and remedies shall be cumulative and the exercise of one shall not be
deemed a waiver of the right to exercise any other or others. No delay or
omission of Owner in the exercise of any such power or remedy shall be
construed to be a waiver or any default of an acquiescence therein.
(e) In addition to the rights granted to Owner under any other
Section of this Charter, if Charterer shall fail to comply with any of the
covenants herein contained, Owner may, but shall not be obligated to, make
advances to perform the same and take all such action as may be necessary to
obtain such performance. Any payment so made by Owner and all costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses, incurred in connection therewith shall be and become due and payable
by Charterer to Owner as Charter Hire.
SECTION 10. DAMAGES AND REPAIRS.
(a) In the event of damage to the Vessel, Charterer shall
repair and restore or cause to be repaired and restored the Vessel with new
and/or used components to at least the condition the Vessel was in immediately
prior to such damage (assuming the Vessel was maintained in accordance with the
terms of this Charter) as soon as is commercially reasonable and in any event
within thirty (30) days after Charterer shall have acquired knowledge of such
damage; provided, however, if such repair and restoration can not be completed
within such thirty (30) day period, Charterer shall begin such repair within
such period and shall use its best efforts to complete such repair or
restoration as soon as is practicable. If no Event of Default shall have
occurred and be continuing and Charterer shall have made all payments of
Charter Hire which have become due and Owner is subsequently reimbursed by a
third party for such
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damage, Owner shall promptly pay to Charterer all amounts received by Owner
from such third party on account of such damage or requisition of use.
(b) In the event that insurance becomes payable under policies
maintained as required by Section 5 on account of an accident, occurrence or
event, (A) if there is no existing Event of Default, Owner shall, upon the
written request of Charterer (i) apply the proceeds of insurance to pay, or
consent that the underwriters pay, directly for repairs, liabilities, salvage
claims, or other charges and expenses (including labor charges due or paid by
Charterer) covered by the policies, or (ii) to the extent that Charterer shall
have repaired the damage and paid the cost thereof or discharged or paid such
liabilities, salvage claims or other charges and expenses (such fact having
been certified to in a certificate of an authorized officer of Charterer
("Officer's Certificate") delivered to Owner, accompanied by written
confirmation by the underwriter, a surveyor, an adjuster or a marine insurance
broker), apply the proceeds of insurance to reimburse, or consent that the
underwriters reimburse, Charterer therefor, and (iii) (after all known damages
with respect to the particular loss shall have been repaired, and all known
costs, liabilities, salvage claims, charges and expenses covered by the
policies with respect to such loss shall have been discharged or paid, such
fact having been certified to by an Officer's Certificate delivered to Owner,
accompanied by written confirmation by the underwriter, a surveyor, an adjuster
or a marine insurance broker) pay, or consent that the underwriters pay, any
balance of the proceeds of insurance to Charterer; or (B) if there is an
existing Event of Default, all proceeds of insurance received by Owner may, at
its option, be retained by Owner as additional security for Charterer's
obligations hereunder (whereupon it shall be added to the Security Deposit)
and/or may be applied to any past due Charter Hire and/or future Charter Hire
due hereunder in inverse order of their maturity.
SECTION 11. USE OF VESSEL.
The Charterer shall arrange for, oversee and provide for the
use of the Vessel as a casino gaming facility cruising from the Gaming Site in
accordance with the applicable laws and regulations of the State of Indiana.
The Charterer's use of the Vessel shall be limited to such uses as are in
furtherance of and are in accordance with or incidental to the use described in
the immediately preceding sentence. Subject to such limitation and the other
terms and provisions of this Charter, Charterer shall have full use and
exclusive possession and control of the Vessel and shall man, supply, equip,
upkeep and operate the Vessel throughout the Charter Period; provided, however,
that in connection with the operation and maintenance of the engine, maritime
and related systems of the Vessel, the Owner shall, from time to time, appoint
(subject to Charterer's approval, which approval may not be unreasonably
withheld) a captain and senior crew members, each of whom shall be employed by
the Charterer during the Charter Period. The master, officers and crew of the
Vessel shall be engaged and employed by Charterer, at Charterer's sole expense,
and shall remain Charterer's servants or employees, and, subject to Owner's
obligation to make appointments pursuant to the proviso set forth in the
immediately preceding sentence, shall be in Charterer's direct control and
direction. Owner agrees that it shall provide Charterer, upon Charterer's
written request, with all reasonably available information in Owner's
possession which is necessary for the use and operation of the Vessel in
accordance with the terms hereof.
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SECTION 12. REDELIVERY.
(a) Upon the expiration of this Charter, the Vessel shall
be redelivered afloat, at the Charterer's sole cost and expense, to the Owner,
at Norfolk, Virginia or such other site as the Owner shall designate in writing
to Charterer not less than two (2) months prior to the expiration of this
Charter (provided such other site is no further in nautical miles from the
Gaming Site than Norfolk, Virginia), in as good condition and working order
(reasonable wear and tear excepted) as when first delivered to the Charterer
for service under this Charter. In the event Charterer fails to redeliver the
Vessel to Owner upon the Charter Expiration Date as provided in the preceding
sentence and as provided in Section 13 below, in addition to all other remedies
available to Owner at law or in equity, Owner shall receive from Charterer all
amounts which would be due Owner hereunder (including, without limitation, the
Charter Hire) as if this Charter had not been terminated.
(b) Upon redelivery or repossession, if requested by Owner,
the Vessel shall be surveyed by a qualified independent marine surveyor
mutually acceptable to the Owner and the Charterer. The cost of such survey
shall be borne by Charterer. If repairs are necessary in order to bring the
Vessel into the condition required on redelivery under this Charter, said
repairs shall be immediately made by the Charterer, at its sole expense and
cost. Subject to the compliance by Charterer of its obligations with respect
to redelivery of the Vessel, Owner shall execute and deliver to Charterer a
notice of any defect, repair or breach, within twenty (20) days following the
tender of the Vessel for redelivery by Charterer.
SECTION 13. STRUCTURAL CHANGES. The Charterer shall not, without the
prior express written approval of the Owner, which approval shall not be
unreasonably withheld, make any structural changes in the Vessel or any
material changes in the Equipment, other than Pre-Charter Alterations or Changes
in accordance with Section 1(b) hereof. All structural modifications shall be
done under the direction of and to the satisfaction of a certified naval
architect engaged by Charterer (with architectural plans therefor to be
provided to Owner), whose selection and which plans shall be subject to the
prior approval of Owner. All structural changes that are made to the Vessel or
the Equipment shall become the property of Owner, and shall be provided to
Owner upon redelivery of the Vessel; provided, however, if, prior to the
commencement of any such change, Owner notifies Charterer in writing that Owner
will require such change to be modified by Charterer prior to redelivery, in
lieu of accepting redelivery of the Vessel with any structural changes made to
the Vessel or the Equipment during the Charter Period, Owner shall have the
right to require that any or all of such changes be modified by Charterer, at
its sole cost and expense, to put the Vessel back into its original structural
condition when first delivered to Charterer on the Acceptance Date and;
provided, further, such obligation to modify changes prior to redelivery shall
not apply to Pre-Charter Alterations set forth on Schedule 1(b) hereto and
Permanent Changes. All gaming equipment and equipment ancillary to the
operation of a gaming concern (including surveillance cameras) installed by
Charterer on the Vessel shall remain the property of Charterer and shall be
removed by Charterer prior to redelivery of the Vessel.
SECTION 14. TAXES. Charterer shall pay and discharge promptly, when
and as due and payable, and before the non-payment of same shall result in the
penalty or imposition of any
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lien, all taxes, assessments, excises, levies, fees, duties, fines and
penalties and other governmental charges including, without limitation, gaming,
sales, use, franchise, property, gross receipts and occupation taxes lawfully
imposed upon or with respect to Owner, the Vessel or the ownership, delivery,
possession, use and operation thereof during the Charter Period, or on any
Charter Hire (provided that sales tax on Charter Hire shall be paid to the
Owner monthly, together with Charter Hire, in accordance with Section 3 above
and Owner shall be responsible for the remittance of such tax to the
appropriate governmental authorities) and all fines and penalties levied or
charged in consequence of the failure of Charterer to comply with any
applicable law, treaty or convention, or any rule or regulation issued
thereunder, and all other amounts payable hereunder. Nothing contained in this
Section 14 shall require the payment by Charterer of any income or franchise
tax (including any income tax payable by Owner which is attributable to the
receipt of the Charter Hire) of or with respect to Owner unless any such income
or franchise tax (A) is in lieu of or a substitute for any other tax,
assessment, excise, levy, fee, duty, fine, penalty or other governmental charge
upon or with respect to the Vessel, or (B) is imposed on or with respect to
Owner solely because of its ownership, use, operation, registration,
documentation or maintenance of the Vessel during the Charter Period.
SECTION 15. ASSIGNMENT. The Charterer shall not sell, assign,
hypothecate, mortgage or pledge any of its rights or interest under this
Charter or subcharter the Vessel without the prior written consent of the
Owner; provided, however, Charterer may sell or assign any of its rights or
interests hereunder, or subcharter the Vessel, to an entity, the majority
equity interest of which is, directly or indirectly, owned by Don Barden.
Owner may assign its rights and obligations hereunder in accordance with
applicable law.
SECTION 16. INSPECTION OF RECORDS. Charterer shall maintain records
pertaining to the revenues, expenses, use, maintenance, costs and repairs with
respect to the Vessel. Upon the reasonable request of Owner, Charterer shall
make records relating to the use, maintenance and repairs of the Vessel
available to Owner and its duly authorized agents to review and extract
information. Such inspections shall be scheduled at mutually convenient times
during normal business hours, and shall be conducted in a manner so as to
minimize the disruption to Charterer's normal business operations. Upon the
occurrence of an Event of Default hereunder, Charterer shall make such other
records with respect to the Vessel available to Owner and its duly authorized
agents as Owner may from time to time reasonably request.
SECTION 17. NOTICES. All notices, requests, consents and other
communications under this Charter shall be in writing and shall be deemed to
have been duly given if personally delivered or if sent by telex, telecopy,
telegram, recognized overnight mail courier or certified or registered mail,
return receipt requested, postage prepaid, to the intended recipient at said
party's address hereinbelow set forth:
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If to the Owner:
NEW YORKER ACQUISITION CORPORATION
c/o President Casinos, Inc.
802 North First Street
St. Louis, Missouri 63102
Attention: John S. Aylsworth
If to the Charterer:
BARDEN-DAVIS CASINO, L.L.C.
400 Renaissance Center
Suite 2400
Detroit, MI 48243
Attention: Ken Kramer
If to the Guarantor:
PRESIDENT CASINOS, INC.
802 North First Street
St. Louis, Missouri 63102
Attention: John S. Aylsworth
Any party hereto may change its address for receiving notices and other
communications under this Charter by giving the other parties hereto
appropriate written notice in accordance with the provisions of this section.
In all instances in this Agreement where the approval of a party is required
and there is no specific time frame set forth herein for such approval, such
party may not unreasonably delay such approval or disapproval and, in all such
instances, such party shall be deemed to approve a matter if it does not
approve or disapprove such matter within thirty (30)days of the request for
such approval.
SECTION 18. ATTORNEYS' FEES. In the event that any party hereto
violates or breaches the terms of this Charter and any other party hereto
engages legal counsel for purposes of enforcing its rights and remedies
hereunder or otherwise protecting its interests in connection with this
Charter, said nondefaulting party, in addition to all other relief to which it
may be entitled, shall also be entitled, in the event it prevails against the
breaching party, to recover all of the reasonable costs and expenses it incurs
in enforcing this Charter and protecting its interests, including its
reasonable attorneys' fees and costs.
SECTION 19. ENTIRE AGREEMENT. This Charter supersedes all prior
agreements and understandings of the parties with respect to the transactions
contemplated hereby and thereby and sets forth the entire understanding of the
parties with respect thereto. No attempted modification, termination or waiver
of any of the provisions hereof or thereof (insofar as they bear on this
Charter) shall be effective unless in writing and signed by all of the parties
hereto.
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SECTION 20. GOVERNING LAW. The admiralty and maritime laws of the
United States, and to the extent applicable and not inconsistent therewith, the
laws of the State of Indiana shall govern the construction, interpretation,
performance and enforcement of this Charter.
SECTION 21. CAPTIONS. The captions and other section headings contained
in this Charter are for reference purposes only and shall not affect the
interpretation or meaning of this Charter.
SECTION 22. PARTIES IN INTEREST. Subject to the provisions of Section
15 above, this Charter shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. The relationship
between Owner and Charterer is that of lessor and lessee and nothing in this
Charter is intended or shall be deemed to constitute Owner and Charter to be
joint venturers or partners.
SECTION 23. SEVERABILITY. If any term, covenant, condition or provision
of this Charter or the application thereof to any person or circumstances
shall, at any time or to any extent, be held invalid or unenforceable, the
remainder of this Charter, or the application of such term, covenant, condition
or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term,
covenant, condition and provision of this Charter shall be valid and enforced
to the fullest extent possible so as to accomplish the manifest purposes
hereof.
SECTION 24. JOINT PARTICIPATION. Charterer has participated in the
drafting of this entire Charter and expressly acknowledges such joint
participation, to avoid application of any rule construing contractual language
against the party which drafted the language.
SECTION 25. TIME OF ESSENCE. Time shall be of the essence with respect
to performance of all obligations under this Charter.
SECTION 26. BROKER'S OR FINDER'S FEES. No party hereto has retained a
broker or finder in connection with the transactions contemplated by this
Charter.
SECTION 27. EARLY TERMINATION. As set forth under Section 2 above,
Charterer may, at any time, upon one hundred eighty (180) days notice to Owner,
terminate this Charter.
SECTION 28. GUARANTEE. Guarantor guarantees the due and punctual
performance by the Owner of all of the terms, covenants, obligations,
conditions and agreements of Owner under this Charter including any payments,
or other amounts which may be due or may become due from Owner under this
Charter, or as a result of Owner's breach of any representation warranty or
covenant hereunder. No delay on the part of Charterer in exercising its rights
hereunder or in taking any action to collect or enforce any covenants or the
payment of any obligations hereby guaranteed shall operate as a waiver of any
such rights or in any manner prejudice the rights of Charterer. Guarantor
hereby expressly waives presentment, demand, protest and notice of protest of
any obligations under this Charter or its breach of any representation,
warranty or covenant hereunder. No extension of time or other indulgence
granted by Charterer shall release or affect the guarantee by Guarantor
hereunder.
20
21
SECTION 29. NET WORTH. At all times from and after the date of
the Delivery Notice during the term of this Agreement, Charterer and any entity
to which Charterer sells or assigns any of its rights or interests hereunder or
to which Charterer subcharters the Vessel, shall maintain a Net Worth (as
defined below) of not less than $10 million. Net Worth shall mean total assets
less total liabilities, calculated in accordance with generally accepted
accounting principles, consistently applied. Charterer and any party to which
it sells or assigns any of its rights or interests hereunder, shall deliver to
Owner (i) quarterly financial statements within thirty (30) days of the end of
each calendar quarter, and (ii) audited year end financial statements by March
31 of each year. All such financial statements shall be prepared in accordance
with generally accepted accounting principles, consistently applied.
21
22
IN WITNESS WHEREOF, the parties hereto have executed this Charter as
of the date first above written.
NEW YORKER ACQUISITION CORPORATION
By: John S. Aylsworth
---------------------------------
Name: John S. Aylsworth
Title: Executive Vice President
BARDEN-DAVIS CASINO, L.L.C.
By: BARDEN DEVELOPMENT, INC., A
MEMBER
By: Don H. Barden
----------------------------------
Name:
Title:
BY: GARY RIVERBOAT GAMING, L.L.C., A MEMBER
BY: BARDEN MANAGEMENT, INC., ITS
MANAGER
By: Don H. Barden
-----------------------------------
Name:
Title:
By: DAVIS GAMING COMPANY
By:
----------------------------------
Name:
Title:
PRESIDENT CASINOS, INC., AS GUARANTOR
PURSUANT TO SECTION 28 ABOVE
By: John S. Aylsworth
----------------------------------
Name: John S. Aylsworth
Title: Executive Vice President
22
23
EXHIBIT A
CERTIFICATE OF ACCEPTANCE
PURSUANT TO CHARTER AGREEMENT
DATED AS OF ___________,1995
AMONG
NEW YORKER ACQUISITION CORPORATION
BARDEN-DAVIS CASINO, L.L.C,
AND
PRESIDENT CASINOS, INC,
The undersigned Charterer under the Charter Agreement described in the
caption hereof (the "Charter") acknowledges and agrees that the Vessel
described in the Charter has been delivered to, and is now in the possession
of, and has been accepted by, the Charterer under and pursuant to and subject
to all the terms and conditions of the Charter.
Dated: ___________________, 199_
Charterer
By: ___________________________
Title:_________________________
24
EXHIBIT B
During the Charter Period, not less than one hundred twenty (120) days
nor more than one hundred eighty (180) days prior to the second, third and
fourth anniversary of the Commencement Date (each such period of days being
hereinafter referred to as a "Charter Hire Evaluation Period"), the Owner shall
engage an appraiser, of nationally recognized standing in the maritime/gaming
industry, to evaluate the fair market rental value of the Vessel for the
12 month period immediately following the applicable Charter Hire Evaluation
Period. Owner shall be obligated to consult with Charterer regarding such
engagement and such engagement shall be subject to the prior written approval
of Charterer, provided that such approval may not be unreasonably withheld.
Prior to the end of the applicable Charter Hire Evaluation Period, the
appraiser so engaged shall provide to Owner and Charterer a written appraisal
of the fair market rental value of the Vessel for the ensuing 12-month period
and such appraisal shall be binding upon the parties hereto and the Charter
Hire payable pursuant to Section 3(a) of the Charter shall be adjusted
accordingly; provided, however, that in lieu of engaging an appraiser in
accordance with the terms hereof or at any time after the engagement of an
appraiser, the parties shall be free to establish the Charter Hire for the
ensuing 12-month period, or any other period of time during the Charter, by
mutual written agreement. The fair market rental value of the Vessel shall be
determined by the appraiser by taking into consideration (i) the replacement
value of the Vessel less depreciation and obsolescence from all causes; (ii)
the annual rental income producing capabilities of the Vessel, taking into
account its suitability for and use in connection with gaming operations; and
(iii) comparable rental values for similar vessels; but shall not take into
consideration the specific profits or losses generated by the gaming operation
utilizing the Vessel under this Charter.
25
Estimated Costs of Scheduled Items
Scheduled Items Costs
Completed HVAC 70,000
Watertight doors 15,000
Clips on hull framing 30,000
Directional signage 15,000
Complete electrical 130,000
Complete 4th deck restroom 22,607
Plates for windows 45,000
Complete interior fit-out 190,000
Complete surveillance rough-in 18,000
Install beverage lines 10,000
Service safety equipment 16,000
26
Galley Equipment
HOLD
Manf. Item Qty
1. Gladco- Vertical Trash Compactor (1)
2. Garland- Convection Oven (4)
3. Garland- Modular Floor Kettles (2)
4. Garland- Modular Electric Fry pans (2)
5. Garland- Cyclone Pressureless Cooker (1)
6. Garland- GE series Electric Steam generator (1)
7. Garland- Heavy Duty Electric Range and Boiler (3)
8. Garland- Electric Deep Fat Fryer (2)
9. Hobart- A 200 Mixer (1)
10. Traulsen- Fish File (1)
11. Stainless- Sink with 2 bowls (3)
12. Stainless- Table with Cooler beneath 2 door (1)
13. Stainless- Table w/cooler and pot rack and hand sink (1)
14. Stainless- Table with warming light and 4 door bun warmer
& 4 door cooler
27
MAIN
Manf. Item Qty
----------------------------------------------------
1. Hatco- Glo-Ray Heat lamp (1)
2. Hobart- AM 14 Dishwasher w/in-line (1)
Hatco water heater
3. Perlick- Under Bar Refrig. Cabinet (1)
4. Wells- Built-in Drawer warmer (1)
5. Perlick- Bar Sinks (3)
6. Hobart- Reach-in Refrigerators (2)
7. Scotsman- FM 800 Icemaker (1)
2ND
Manf. Item Qty
----------------------------------------------------
1. Perlick- Bar Sinks (2)
2. Perlick- Beer Towers (2)
3RD
Manf. Item Qty
----------------------------------------------------
1. Traulsen- Glass Front Refrig. (1)
28
DRAFT BEER COOLER ROOM
Manf. Item Qty
- -----------------------------------------------------------------
1. Manitowac- 1700 Icemaker (2)
2. Perlick- Compressor/beverage (3)
3. Hobart- AM 14 Dishwasher w/in-line heater (1)
SUN DECK BAR
Manf. Item Qty
- -----------------------------------------------------------------
1. Traulsen- Glass Front Refrig. (1)
2. Stainless- Sinks w/beer spigots (2)
4TH BEER COOLER
Manf. Item Qty
- -----------------------------------------------------------------
1. Manitowac- 1700 Icemaker (1)
2. Perlick- Compressors (3)
29
================================================================================
ENGINE ROOM
MAIN ENGINES
16 Cylinder MDL-645 EMD
Horsepower 2 x 1950
MAIN GENERATORS
8 Cylinder MDL 645 EMD
Power 2 x 750 KW
#3 GENERATOR
Detroit 6 Cylinder, 92 series (270 KW)
EMERGENCY GENERATOR
Detroit 8 Cylinder, V 71 series (150 KW)
BOWTHRUSTER
Detroit 8V71
STORAGE TANKS
DIESEL TANK, 16,700 gallons
DAY TANK, 2 x 752 gallons
LUBE OIL TANK, 2 x 278 gallons
POTABLE WATER, 2 X 7875 gallons
SEWAGE, 10112 gallons
================================================================================
SAFETY EQUIPMENT
PFD 1,800
LIFE BOATS/LIFE RAFTS 1 Motorized Rescue Boat-4 per.
1 Rescue Skiff under oars-4 per.
INFLATABLE 1 B.F. Goodrich MK3 - 25 per.
1 Viking RDV - 25 per.
12 Viking Rdv - 50 per.
================================================================================
PAGE 2
30
================================================================================
FIRE EXTINGUISHERS
31 All Dry Chem. 5 lbs
1 All Dry Chem 10 lbs
1 CII Co2 10 lbs
1 CII Co2 15 lbs
7 BII Co2 15 lbs
FIXED SYSTEMS 26 Co2 75 lbs (engine room)
2 Co2 50 lbs (engine room)
2 Wet 75 lbs (Galley)
2 Co2 75 lbs (Emerg. Gen.)
FIRE STATIONS Hold 8
Main Deck 8
2nd Deck 7
3rd Deck 8
4th Deck 4
RING BUOYS 2nd Deck 4- w/lite and 90' life line (2 bow-
2 stern)
4th Deck 2-stern (1 port- 1 stbd)
31
PCV - EQUIPMENT LIST
A/C CHILLER UNIT #1 CARRIER 30H9196A80OKGE
A/C CHILLER UNIT #2 CARRIER 3OH909OD90O
A/C CHILLER UNIT #3 CARRIER 30H8O80D60O
AIR COMPRESSOR #1 QUINCY 32613721936L
AIR COMPRESSOR #2 QUINCY 32613721837L
ANCHOR WINGLASS MCELROY MACHINE M6V78-88
AUTOMATIC ANTENNA TUNER SEA, INC. SEA 16128
BATTERY CHARGER LAMARCHE CONSTAVOLT A40 10 12V A1
BATTERY CHARGER LAMARCHE CONSTAVOLT A 22 10 12V
BILGE PUMP #1 MARLOW-ITT 32HEL8B
BILGE PUMP #2 MARLOW-ITT 32HEL8B
BOWTHUSTER BRUNVOLL SPK30D
CHILL WATER CIRC. PUMP #1 DEMING PUMP BF 8 3/4
CHILL WATER CIRC. PUMP #2 DEMING PUMP BF 8 1/2
CHILL WATER CIRC. PUMP #3 DEMING PUMP 8F 8 1/2
CHILLER RAW WATER PUMP #1 DEMING PUMP 8F 10"
CHILLER RAW WATER PUMP #2 DEMING PUMP BF 10"
DIATY LUBE OIL PUMP BLACKMER MS 1 111/2N
ECHOSOUNDER FURUNO FE 908
ELEVATOR, FREIGHT, PORT CANTON ELEVATOR DUAL TELESCOPING
ELEVATOR, FREIGHT, STBD. CANTON ELEVATOR DUAL TELESCOPING
ELEVATOR, PASSENGER CANTON ELEVATOR DUAL TELESCOPING
EMERGENCY GENERATOR DELCO EB264
ENGINE TELEGRAPH HENSCHEL 101063 ALT 7
EPIR6 ACR ELECTRONICS ACFURLB-23
EXHAUST FAN #01 SP-127
EXHAUST FAN #02 SP-127
EXHAUST FAN #03 SP-127
EXHAUST FAN #04 SP-127
EXHAUST FAN #06 SP-127
EXHAUST FAN #06 SP-127
EXHAUST FAN #07 SP-127
EXHAUST FAN #06 SP-127
EXHAUST FAN #09 SP-127
EXHAUST FAN #10 SP-127
EXHAUST FAN #11 SP-127
EXHAUST FAN #12 SP-127
EXHAUST FAN #13 SP-127
EXHAUST FAN #14 SP-127
EXHAUST FAN #15 SP-127
EXHAUST FAN #16 SP-127
EXHAUST FAN #17 SP-127
EXHAUST FAN #18 SP-127
EXHAUST FAN #19 SP-127
EXHAUST FAN #20 SP-127
EXHAUST FAN #21 SP-127
EXHAUST FAN #22 SP-127
EXHAUST FAN #23 SP-127
EXHAUST FAN #24 SP-127
EXHAUST FAN #25 SP-127
FIRE PUMP #1 TRENCH & MARINE 421
FIRE PUMP #2 TRENCH & MARINE 421
FIRE/SMOKE ALARM PYROTECHNICS SYSTEM 3, MOD35
FOG SIGNAL TIMER KAHLENBERG M423
FREEZER COMPRESSOR #1 COPELMATIC
FREEZER COMPRESSOR #2 COPELMATIC
FUEL TRANSER PUMP #1 VIKING
FUEL TRANSER PUMP #2 VIKING
GALLEY GREY WATER PUMP TRENCH & MARINE
GENERATOR #3 MAGNA ONE
GPS NAVIGATOR MICROLOGIC
GREY WATER TRANSFER PUMP TRENCH & MARINE
GYROCOMPASS OPERAY MARINE
HOT WATER BOILER ALDRICH
HAND MOBIL RADIO STANDARD
MAIN ENGINE GOVERNOR, PORT WOODWARD
MAIN ENGINE GOVERNOR, STBD WOOWARD
MAIN ENGINE, PORT EMD
MAIN ENGINE, STARBOARD EMD
POTABLE WATER PUMP #1 BURKS PUMPS
POTABLE WATER PUMP #2 BURKS PUMPS
PRE-LUB PUMP, PORT M.E. VIKING-IBEX
PRE-LUB PUMP, PORT SSDG DELCO
PRE-LUB PUMP, STBD M.E. VIKING-IBEX
PRE-LUB PUMP, STBD SSDG DELCO
PRIMING PUMP, PORT IABSCO
PRIMIN GPUMP, STARBOARD JAISCO
RADAR BACAL DECCA
32
REDUCTION GEAR, PORT FALX 1235
REDUCTION GEAR, STBD D1235
REEFER COOLING PUMP #1 TEEL 1P831
REEFER COOLING PUMP #2 TEEL 1P831
REEFER COOLING PUMP #3 TEEL 1P831
SANITARY PRESSURE PUMP #1 TRENCH & MARINE
SANITARY PRESSURE PUMP #2 TRENCH & MARINE
SEWAGE PUMP #1 HERBORNER/ENVIROVAC
SEWAGE PUMP #2 HERBORNER/ENVIROVAC
SEWAGE TRANSFER PUMP GORMAN-RUPP
SINGLE SIDE BAND RADIO SEA, INC. SEA 222
SOUND POWERED TELEPHONE HOSE MCCANN SWLR
SSDG GENERATOR, STBD KATO 1060-873361111
SSDG GENERATOR, PORT KATO 1060-873361111
SSDG GOVERNOR, PORT WOODWARD EGB 9240 805 US
SSDG GOVERNOR, STBD WOODWARD EGB 9240 805 US
SSDG, PORT EMO/KATO 8-646E1
SSDG, STARBOARD EMO/KATO 8-646E1
STANDARD MERCHANT BINNACLE E.S. RITCHIE 8135M
STEERING GEAR AUX PUMP GEROTOR H5-P
STEERING GEAR MAIN PUMP GEROTOR V3621V25A8
STEERING GEAR MOTORS FRYDENBO H9 40
STERN TUBE PUMP #1 WHEELER-ECONOMY
STERN TUBE PUMP #2 WHEELER-ECONOMY
VHF MARINE RADIO STANDARD GALAXY 23005
VHF MARINE RADIO MODAR MODAR VHF
W/T DOOR HYD. PUMP #1 VICKERS A-90
W/T DOOR HYD. PUMP #2 VICKERS A-90
WINDOW DE-ICER CORNELL CARR CC-5200
33
[FLOOR PLAN OF SHIP]
34
[FLOOR PLAN OF SHIP]
35
[FLOOR PLAN OF SHIP]
36
STABILITY TEST M/V NEW YORKER
37
STABILITY TEST M/V NEW YORKER
38
STABILITY TEST M/V NEW YORKER
39
WEIGHT SCHEDULE
VESSEL: M/V NEW YORKER O.N. 538911
OWNER: PRESIDENT RIVERBOAT CASINOS
CONDITION: BURN-OUT 10% FUEL & WATER/10% SEWAGE/1900 PASS & CREW
DATE: 10-05-1994 D&L CONTRACT 92-433
ITEM WEIGHT X-POS Y-POS Z-POS
LBS. STA FT FT
1 LIGHTSHIP 1751.70 1.38 0.00 26.12
2 PASS/CREW MAIN DECK 0.00 0.00 0.00 0.00
3 STORES 19.00 17.46 0.00 31.74
4 FURNITURE 2.14 -96.00 0.00 31.00
5 SMALLWARE/CATERING EQ 4.89 -40.00 0.00 35.00
6 D.O. STORAGE 1675 GAL 5.30 5.00 0.00 5.65
7 D.O. DAY P/S 75 GAL 0.50 -1.25 0.00 8.00
8 L.O. P/S @ 28 GAL 0.20 -1.25 0.00 10.93
9 GREY WATER 687 GAL 2.55 17.00 0.00 5.43
10 SEWAGE 991 GAL 3.68 35.00 0.00 5.70
11 POTWTR P/S 788 GAL 5.85 5.00 0.00 8.70
12 WASTE OIL 52 GAL 0.16 -4.50 0.00 5.40
13 600 PAS/CRW@160# 3RD DK 42.86 10.34 0.00 40.75
14 700 PAS/CRW#160# SUN DK 50.00 10.34 0.00 52.25
15 COINS 24.37 31.00 0.00 28.00
16 COINS HARD COUNT 10.46 -64.00 0.00 22.00
17 CHIPS 0.22 31.00 0.00 28.00
18 600 PAS/CRW@160# 2ND DK 42.86 10.34 0.00 22.00
TOTALS 1966.74 1.07 0.00 27.13
40
WEIGHT SCHEDULE
- --------------------------------------------------------------------------
WEIGHT SCHEDULE
VESSEL: M/V NEW YORKER O.N. 538911
OWNER: PRESIDENT RIVERBOAT CASINOS
CONDITION: DEPARTURE 100% FUEL & WATER/10% SEWAGE/1900 PASS & CREW
DATE: 10-05-1994 D&L CONTRACT #92-433
ITEM WEIGHT X-POS Y-POS Z-POS
LBS. STA FT FT
1 LIGHTSHIP 1751.70 1.38 0.00 26.12
2 PASS/CREW MAIN DECK 0.00 0.00 0.00 0.00
3 STORES 19.00 17.16 0.00 31.74
4 FURNITURE 2.14 -96.00 0.00 31.00
5 SMALLWARE/CATERING EQ 4.89 -40.00 0.00 35.00
6 D.O. STORAGE 1675 GAL 53.30 5.00 0.00 12.49
7 D.O. DAY P/S 75 GAL 4.78 -1.25 0.00 11.67
8 L.O. P/S 28 GAL 1.72 -1.25 0.00 13.17
9 GREY WATER 687 GAL 2.55 17.00 0.00 5.43
10 SEWAGE 991 GAL 3.68 35.00 0.00 5.70
11 POTWTR P/S 788 GAL 58.48 5.00 0.00 12.75
12 WASTE OIL 52 GAL 0.16 -4.50 0.00 5.40
13 600 PAS/CRW 160# 3RD DK 42.86 10.34 0.00 40.75
14 700 PAS/CRW 160# SUN DK 50.00 10.34 0.00 52.25
15 COINS 24.37 31.00 0.00 28.00
16 COINS HARD COUNT 10.46 -64.00 0.00 28.00
17 CHIPS 0.22 31.00 0.00 28.00
18 600 PAS/CRW@160# 2ND DK 42.86 10.34 0.00 32.00
TOTALS 2073.17 2.20 0.00 26.48
41
CONSTRUCTION SCHEDULE
1000 Complete HVAC Complete HVAC
1010 Order & Install Watertight Doors Order & Install Watertight Doors
1020 Clips on Hull Framing Clips on Hull Framing
1050 Directional Signage Directional Signage
1040 Complete Electrical Complete Electrical
1060 Complete 4th Deck Restrooms Complete 4th Deck Restrooms
1030 Plates for Windows Plates for Windows
1080 Complete Interior Fit-Out Complete Interior Fit-Out
1070 Complete Surveillance Sys Rough-in Complete Surveillance Sys Rough-in
1075 Install Beverage Lines Install Beverage Lines
1025 Service Safety Equipment Service Safety Equipment
1090 Vessel Ready for Move Vessel Ready for Move
Notes to Schedule:
August 16 Start Date Assumed
Delay in starting results in day for day increase in finish date until September
15, beyond which the finish date could be subject to weather delays.
Completion of
M?V New Yorker U.S.O.C. No. 538911
START DATE 15AUG95
FINISH DATE 14NOV95
RUN DATE 28JUL95
(C) PRIMAVERA SYSTEMS, INC.
42
[GUIDO PERLA & ASSOCIATES LETTERHEAD]
FAX MESSAGE SHEET
DATE: October 31, 1995 TIME: 6:06 PM Ref: 76695
TO: DON BARDEN 313-259-0154
DWIGHT BELYUE Same
MIKE JOHNSON 810-954-1785
Company: Barden Development
FROM: Larry Sund
RE: New Vessel Design
Number of pages including cover sheet: 1
Dear Don:
Based on our meeting on October 13th, and Michael Johnson's letter of 10/15/95,
we have proceeded with a preliminary vessel design. We recognize that we have
not received written direction to proceed, but, we also understand that you
would like to see the process started. If there is any problem with our
actions please let us know as soon as possible.
Our first cone vessel design is nearing completion and we would like to arrange
a meeting to present our plans. If you can find the time we would like to
invite you to our office in Seattle. We would also be happy to travel to
Detroit. We suggest a date of either Thursday, November 9th, in Detroit, or
Friday, November 10th, in Seattle.
Please let us know if either of these dates are possible.
Best Regards,
Larry Sund
Larry Sund
Page 1
43
M/V President V
BARDEN DEVELOPMENT
(General Contractor)
RMI OWNER'S REPRESENTATIVE
DAVID SEYMOUR-OWNER'S NAVAL ARCHITECT
GPA-ADVISOR
Project Manager
(Reports to RMI)
DESIGN-ENGINEERING-PROCUREMENT-CONSTRUCTION-COST & SCHEDULING-CONTROL
- - DESIGN & ENGINEERING
David Seymour-GPA-DeJong & LeBet-Vendors
- - PROCUREMENT & PURCHASING
Procurement Manager
Bidding Process-Contract Administration-Purchasing
- - CONSTRUCTION
Construction Superintendant
Production-Quality-Safety
- - COST & SCHEDULING
Supervisor
Change Orders-Budget-Actual Costs
- - ADMINISTRATION & CONTROL
Approve vouchers-reports-warranties-guarantees
44
[DYKEMA GOSSETT-LETTERHEAD]
TELECOPIER: (313) 568-6915
JUDY A. O'NEILL DIRECT DIAL
(313) 568-6786
MAY 2, 1996
VIA FACSIMILE
Henry Gusky, Esquire
Sable, Makoroff & Gusky, P.C.
Seventh Floor, Frick Building
Pittsburgh, PA 15219-5003
Re: Charter Agreement
Dear Henry:
This letter confirms the agreement of our clients regarding certain
amendments to the Charter Agreement between New York Acquisition Corporation
("NYAC"), Barden-Davis Casino, L.L.C., now known as The Majestic Star Casino,
LLC ("Majestic") and President Casinos, Inc., ("President"), dated as of August
17, 1995 (the "Charter Agreement"). Subject to the execution of this letter by
duly authorized officers of each of the parties whose names appear below
(execution by an officer constitutes a representation that such officer is so
authorized):
(A) NYAC agrees to move the Vessel to Gary, Indiana promptly upon
Majestic's written request without a Certificate of Inspection, provided that a
Permit to Proceed regarding such move is obtained from the United States Coast
Guard; provided further that such move and
45
[DYKEMA GOSSETT
PLLG LETTERHEAD]
Mr. Henry Gusky
May 2, 1996
Page 2
the arrival date in Gary, Indiana are subject to weather conditions as
specified in the Charter Agreement; and (B) Majestic agrees that, in the event
the Vessel proceeds from Erie, Pennsylvania to Gary, Indiana, with such Permit
to Proceed, (1) Majestic irrevocably waives all of the representations by NYAC
contained in Section 6(b)(ii) of the Charter Agreement; (2) Majestic agrees to
assume all risks whatsoever and hereby releases and forever discharges NYAC and
President from all liability resulting from the failure to obtain a Certificate
of Inspection from the United States Coast Guard prior to departure of the
Vessel from Erie, Pennsylvania; and further (3) Majestic, on May 3, 1996, shall
accept delivery of the vessel in Erie, Pennsylvania and, immediately upon such
acceptance of delivery, shall issue a Certificate of Acceptance to NYAC
pursuant to the Charter Agreement, thereby triggering the "Commencement Date"
and the obligations to pay the Charter Hire in accordance with the terms of the
Charter Agreement, provided, however, that NYAC shall bear the cost and
obligation to deliver the Vessel afloat to Gary, Indiana to the same extent as
is required under the Charter Agreement, provided a Permit to Proceed is
obtained. Majestic further agrees to pay to Erie Petroleum, on or before May
3, 1996, by check, $7700, which is the difference between (a) the cost of a
full tank of fuel, and (b) the cost of the fuel needed to deliver the Vessel
from Erie, Pennsylvania to Gary, Indiana as estimated by agreement of John Cook
and Tom Schneider; and further Majestic agrees to reimburse NYAC the cost for a
crew necessary for delivery of the Vessel, during the period from and after
May 2, 1996 until the earlier of (a) the day on which the Vessel departs Erie,
Pennsylvania, or (b) the day following the day Majestic notifies NYAC to
release such crew, which costs shall be an amount equal to $4,595 per day plus
the reasonable costs of hotels, meals and transportation for the crew while
awaiting departure from Erie Pennsylvania plus a $.35 per diem for each crew
member.
NYAC and President further agree that the last sentence of Section
1(b)(iii) of the Charter Agreement shall be amended in its entirety to read as
follows:
Upon completion of and payment in full
of all Changes, any amount remaining in
the Escrow Account in excess of
$500,000 shall be delivered to
Charterer and such $500,000 shall be
thereafter the Security Deposit, for
all purposes under the Charter
Agreement.
Please have your clients execute where indicated below
Teresa Way
K. L. Kramer
46
[DYKEMA GOSSETT
PLLC LETTERHEAD]
Mr. Henry Gusky
May 2, 1996
Page 3
and return a copy of the executed letter to me by facsimile and mail.
Sincerely,
DYKEMA GOSSETT PLLC
Judy A. O'Neill
Judy A. O'Neill
JAO:6303:sls
cc: Don Barden
Kenneth Kramer
(Signatures on next page)
47
[DYKEMA GOSSETT
PLLC LETTERHEAD]
Mr. Henry Gusky
May 2, 1996
Page 4
The Majestic Star Casino, LLC
By: Barden Development, Inc., its manager
By: Kenneth L. Kramer
------------------------
Its: Vice President
------------------------
New Yorker Acquisition Corporation
By: John E. Connelly
------------------------
Its: President
------------------------
President Casinos, Inc., as guarantor
By: Teresa Way
-------------------------
Its: Vice President
-------------------------
48
Dear Ken,
After signing, please fax copy back to Henry Gusky at
412/335-7987.
Thank you,
Terry Wirginis
49
[GUIDO PERLA & ASSOCIATES LETTERHEAD]
FAX MESSAGE SHEET
DATE: October 31, 1995 TIME: 6:06 PM Ref: 76695
TO: DON BARDEN 313-259-0154
DWIGHT BELYUE Same
MIKE JOHNSON 810-954-1785
Company: Barden Development
FROM: Larry Sund
RE: New Vessel Design
Number of pages including cover sheet: 1
Dear Don:
Based on our meeting on October 13th, and Michael Johnson's letter of 10/15/95,
we have proceeded with a preliminary vessel design. We recognize that we have
not received written direction to proceed, but, we also understand that you
would like to see the process started. If there is any problem with our
actions please let us know as soon as possible.
Our first cone vessel design is nearing completion and we would like to arrange
a meeting to present our plans. If you can find the time we would like to
invite you to our office in Seattle. We would also be happy to travel to
Detroit. We suggest a date of either Thursday, November 9th, in Detroit, or
Friday, November 10th, in Seattle.
Please let us know if either of these dates are possible.
Best Regards,
Larry Sund
Larry Sund
Page 1
50
M/V President V
BARDEN DEVELOPMENT
(General Contractor)
RMI OWNER'S REPRESENTATIVE
DAVID SEYMOUR-OWNER'S NAVAL ARCHITECT
GPA-ADVISOR
Project Manager
(Reports to RMI)
DESIGN-ENGINEERING-PROCUREMENT-CONSTRUCTION-COST & SCHEDULING-CONTROL
- - DESIGN & ENGINEERING
David Seymour-GPA-DeJong & LeBet-Vendors
- - PROCUREMENT & PURCHASING
Procurement Manager
Bidding Process-Contract Administration-Purchasing
- - CONSTRUCTION
Construction Superintendant
Production-Quality-Safety
- - COST & SCHEDULING
Supervisor
Change Orders-Budget-Actual Costs
- - ADMINISTRATION & CONTROL
Approve vouchers-reports-warranties-guarantees