EXHIBIT 4.7
[Tunica]
FIRST PREFERRED VESSEL MORTGAGE
ON THE WHOLE OF THE FITZGERALDS TUNICA
(U.S.C.G. Official Number 262757)
Maximum Amount of $152,632,000
BARDEN MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company,
having an address of
163 Madison Avenue, Suite 2000
Detroit, Michigan 48226
Owner and Mortgagor
In Favor of
THE BANK OF NEW YORK,
a New York banking corporation,
having an address of
101 Barclay Street - 21W
New York, New York 10286
in its capacity as Trustee
under that certain Indenture dated as of
December 6, 2001, by and among
Majestic Investor Holdings, LLC,
a Delaware limited liability company,
Majestic Investor Capital Corp.,
a Delaware corporation,
the Subsidiary Guarantors named therein and
The Bank of New York,
Trustee-Mortgagee
Dated as of December 6, 2001
Discharge amount: $152,632,000 (or such lesser amount of principal
as shall have been advanced) Together With Interest, Expenses,
Attorneys' Fees And Costs And Performance of Mortgage Covenants
TABLE OF CONTENTS
Page
----
ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
1.1 Certain Definitions..................................................................4
1.2 Rules of Construction................................................................4
ARTICLE 2.
GENERAL MORTGAGE PROVISIONS
ARTICLE 3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR
3.1 Status of Mortgagor..................................................................5
3.2 Outstanding Liens....................................................................5
3.3 Compliance with Law..................................................................5
3.4 Operation of Vessel..................................................................6
3.5 Payment of Taxes, Etc................................................................6
3.6 Notice of Mortgage...................................................................6
3.7 Release from Arrest..................................................................7
3.8 Care of the Vessel...................................................................7
3.9 Access to Vessel.....................................................................8
3.10 Documentation of Vessel..............................................................8
3.11 Sale, Charter or Mortgage of Vessel..................................................8
3.12 Insurance............................................................................8
3.13 Requisition of Title to Vessel.......................................................9
3.14 Requisition of Vessel but Not Title..................................................9
3.15 Execution of Additional Documents....................................................9
ARTICLE 4.
EVENTS OF DEFAULT AND REMEDIES.................................................................10
4.1 Events of Default......................................................................10
4.2 Remedies...............................................................................10
i
4.3 Sale of Vessel by Mortgagee............................................................12
4.4 Mortgagee to Sign for Mortgagor........................................................12
4.5 Mortgagee to Collect Hire, Etc.........................................................12
4.6 Right to a Receiver....................................................................13
4.7 Suits to Protect the Vessel............................................................13
4.8 Costs of Mortgagee.....................................................................13
4.9 Right of Mortgagee.....................................................................13
4.10 Restoration of Position................................................................14
4.11 Proceeds of Sale.......................................................................14
4.12 Gaming Approvals.......................................................................14
ARTICLE 5.
MISCELLANEOUS PROVISIONS
5.1 Addresses for Notices, Etc.............................................................15
5.2 Mortgagee's Expenses, Including Attorney's Fees........................................15
5.3 Counterparts...........................................................................16
5.4 Interest of Mortgagee..................................................................16
5.5 Survivorship of Covenants..............................................................16
5.6 Amendments.............................................................................16
5.7 Discharge of Lien......................................................................16
5.8 Incorporation into Mortgage............................................................16
5.9 GOVERNING LAW..........................................................................17
5.10 Conflict...............................................................................17
ii
FIRST PREFERRED VESSEL MORTGAGE
THIS FIRST PREFERRED VESSEL MORTGAGE (as same may be amended, replaced or
supplemented from time to time hereafter, this "Mortgage") dated as of December
6, 2001, is granted by:
BARDEN MISSISSIPPI GAMING, LLC
163 Madison Avenue, Suite 2000
Detroit, Michigan 48226
a limited liability company organized and existing under and by virtue of the
laws of the State of Mississippi ("Mortgagor") in favor of: The Bank of New
York, whose address is 101 Barclay Street - 21W, New York, New York 10286, as
Trustee under that certain Indenture (as same may be amended or supplemented
from time to time hereafter, the "Indenture"), dated as of December 6, 2001, by
and among Majestic Investor Holdings, LLC, a Delaware limited liability company
("Company"), Majestic Investor Capital Corp., a Delaware corporation
("Capital"), Mortgagor and the other Subsidiary Guarantors named therein and The
Bank of New York, as Trustee ("Mortgagee").
WHEREAS:
A. Mortgagor is the sole owner of the whole of the vessel identified and
described in the Granting Clause of this Mortgage.
B. Pursuant to the terms and conditions of the Indenture, Company and
Capital have executed certain 11.653% Senior Secured Notes (together with any
replacements thereof contemplated in the Indenture and as same may be amended or
supplemented from time to time hereafter, the "Notes"), dated as of December 6,
2001, and due in 2007, in the aggregate stated maximum principal amount of ONE
HUNDRED FIFTY-TWO MILLION SIX HUNDRED THIRTY-TWO THOUSAND DOLLARS AND NO/100
($152,632,000).
C. Mortgagor is a wholly-owned subsidiary of Company and has guaranteed
(as same may be amended, replaced or supplemented from time to time hereafter,
"Mortgagor's Guaranty"), pursuant to the terms of the Indenture, payment by
Company and Capital of the indebtedness evidenced by the Notes and performance
by Company and Capital of the obligations of Company and Capital under the Notes
and the Indenture.
D. Mortgagor has entered into that certain Deed of Trust, Security
Agreement And Fixture Filing With Assignment of Rents of even date herewith (as
same may be amended, replaced or supplemented from time to time hereafter, the
"Deed of Trust"), recorded in Tunica County, Mississippi covering certain fee
estates, improvements and other real and personal property owned by Mortgagor;
which Deed of Trust secures payment and performance of the Subsidiary Guarantee
Obligations, as defined in the Deed of Trust.
E. In order to further secure the due and punctual payment and
performance of all of the Subsidiary Guarantee Obligations, Mortgagor has agreed
to execute and deliver this Mortgage as follows:
WITNESSETH:
IN CONSIDERATION OF THE FOREGOING PREMISES AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, MORTGAGOR DOES HEREBY IRREVOCABLY GRANT, BARGAIN, SELL, TRANSFER,
MORTGAGE, CONVEY AND ASSIGN UNTO AND IN FAVOR OF MORTGAGEE, its successors and
assigns, as agent and representative for the equal and ratable benefit of the
Holders, but subject to Permitted Liens (as defined in the Indenture), the
following (but excluding in each and every case all Excluded Assets, as defined
in the Indenture), whether now owned or hereafter acquired:
GRANTING CLAUSE ONE
[VESSEL]
The whole of the following named and described vessel and appurtenances
(the "Vessel") to wit:
OFFICIAL
NAME NUMBER TYPE
---- ------ ----
FITZGERALDS TUNICA 262757 Barge
TOGETHER WITH, all of the following now owned or hereafter acquired by Mortgagor
or in which Mortgagor has any rights or interest and now or hereafter located in
or on, or attached to, or used or intended to be used or which are now or may
hereafter be appropriated for use on or in connection with the operation of the
Vessel and the business being conducted or which may be conducted thereon, or in
connection with any construction being conducted or which may be conducted
thereon: boilers, engines, machinery, masts, spars, boats, cables, motors,
tools, anchors, chains, booms, cranes, rigs, pumps, pipe, tanks, tackle,
apparel, furniture, fixtures, rigging, supplies, fittings and gaming machinery,
equipment and accessories relating to the Vessel and the gaming operations now
or hereafter conducted thereon, including but not limited to communication
systems, visual and electronic surveillance systems and transportation systems,
tools, utensils, food and beverage, liquor, uniforms, linens, housekeeping and
maintenance supplies, fuel, all gaming equipment and devices, financial
equipment, computer equipment, calculators,
2
adding machines, video game and slot machines, and any other electronic
equipment of every nature used in connection with the operation of the Vessel
and the business conducted thereon, all machinery, equipment, engines,
appliances and fixtures for generating or distributing air, water, heat,
electricity, light, fuel or refrigeration, or for ventilating or sanitary
purposes, or for the exclusion of vermin or insects, or for the removal of dust,
refuse or garbage, all wall-beds, wallsafes, built-in furniture and
installations, shelving, lockers, partitions, doorstops, vaults, motors,
elevators, dumb-waiters, awnings, window shades, Venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, drapes, drapery rods and brackets,
mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing, bathtubs,
sinks, basins, pipes, faucets, water closets, laundry equipment, washers,
dryers, ice-boxes and heating units, all kitchen and restaurant equipment,
including but not limited to silverware, dishes, menus, cooking utensils,
stoves, refrigerators, ovens, ranges, dishwashers, disposals, water heaters,
incinerators, furniture, fixtures and furnishings, all cocktail lounge supplies,
including but not limited to bars, glassware, bottles and tables used in
connection with the Vessel, all chaise lounges, hot tubs, swimming pool heaters
and equipment, and all other recreational equipment (computerized and
otherwise), beauty and barber equipment, and maintenance supplies used in
connection with the Vessel, all specifically designed installations and
furnishings, and all furniture, furnishings and personal property of every
nature whatsoever; and all extensions, additions, accessions, improvements,
betterments, renewals, substitutions, and replacements to any of the foregoing,
all of which (to the fullest extent permitted by law) shall be conclusively
deemed appurtenances to the Vessel, and all other appurtenances to the Vessel
appertaining or belonging, whether now owned or hereafter acquired, whether on
board or not at any time of determination, and all additions, improvements and
replacements hereafter made in or to the Vessel and all proceeds of any of the
foregoing, including without limitation, any claim for compensation, purchase
price reimbursement or award for a requisition pursuant to Section 3.13 hereof
and any charter hire or other compensation resulting from a requisition pursuant
to Section 3.14 hereof. Mortgagor and Mortgagee acknowledge that significant
structures, improvements, additions, equipment and other appurtenances may be
added to the Vessel after the execution of this Mortgage, and Mortgagor
specifically affirms and agrees that all such appurtenances to the Vessel shall
be subject to this Mortgage.
TOGETHER WITH, all extensions, improvements, betterments, renewals,
substitutes for and replacements of, and all additions, accessions, and
appurtenances to, any of the foregoing that Mortgagor may subsequently acquire,
and all conversions of any of the foregoing; Mortgagor agrees that all property
hereafter acquired by Mortgagor and required by the Indenture, this Mortgage or
any other Security Document to be subject to the Lien and/or security interests
created by this Mortgage shall forthwith upon the acquisition thereof by
Mortgagor be subject to the Lien and security interests of this Mortgage as if
such property were now owned by Mortgagor and were specifically described in
this Mortgage and granted hereby or
3
pursuant hereto, and the Mortgagee is hereby authorized to receive any and all
such property as and for additional security for the Subsidiary Guarantee
Obligations.
TO HAVE AND HOLD the same unto Mortgagee, its successors and assigns,
forever upon the terms herein set forth to secure payment of the Subsidiary
Guarantee Obligations, including the performance and observance of and
compliance with the covenants, terms and conditions herein contained.
PROVIDED, only, and the condition of these presents is such, that if the
Subsidiary Guarantee Obligations shall be indefeasibly paid and performed in
full, then, these presents and the rights hereunder shall cease, terminate and
be void in the manner provided in Section 5.7 hereof.
AND NOW, THE PARTIES HEREBY FURTHER AGREE, COVENANT AND DECLARE that the
Vessel is to be held subject to the following covenants, conditions, provisions,
terms and uses:
ARTICLE 1.
DEFINITIONS AND RULES OF CONSTRUCTION
For all purposes of this Mortgage, unless the context otherwise requires:
1.1 Certain Definitions. Capitalized terms used herein and not otherwise
defined herein but defined in the Indenture or the Deed of Trust shall have the
definitions provided in the Indenture or the Deed of Trust, as the case may be.
1.2 Rules of Construction. Unless the context otherwise requires:
1.2.1 A term has the meaning assigned to it;
1.2.2 "or" is not exclusive;
1.2.3 Words in the singular include the plural, and in the plural
include the singular;
1.2.4 All references herein to particular articles or sections,
unless otherwise provided, are references to articles or sections of this
Mortgage.
1.2.5 The headings herein are solely for convenience of reference
and shall not constitute a part of this Mortgage nor shall they affect
its meaning, construction or effect.
4
ARTICLE 2.
GENERAL MORTGAGE PROVISIONS
For purposes of this Mortgage and in order to comply with Title 46,
Section 31321(b)(3) of the United States Code, the parties to this Mortgage
hereby declare that the indebtedness which is now or will in the future be owed
under the Notes, the Guarantees and the other Subsidiary Guarantee Obligations
is an amount up to the maximum sum of ONE HUNDRED FIFTY-TWO MILLION SIX HUNDRED
THIRTY-TWO THOUSAND DOLLARS AND NO/100 ($152,632,000) the total of all possible
advances that may be made under the loan evidenced by the Notes, together with
interest, attorneys' fees and costs of performance of the Subsidiary Guarantee
Obligations and the covenants of this Mortgage, the Notes, the Guarantees, the
Deed of Trust and the other Security Documents. The discharge amount is the same
as such total amount, together with interest, expenses, attorneys' fees and
costs and performance of the Subsidiary Guarantee Obligations and the covenants
of this Mortgage, the Notes, the Guarantees, the Deed of Trust and the other
Security Documents.
ARTICLE 3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF MORTGAGOR
Mortgagor represents, warrants, covenants and agrees with Mortgagee as
follows:
3.1 Status of Mortgagor. Mortgagor is a limited liability company
organized and existing under and by virtue of the laws of the State of
Mississippi and is and will remain a citizen of the United States of America
within the meaning of Title 46, Section 802, of the United States Code, entitled
to own and document the Vessel to engage in the trade in which the Vessel is
operating under the laws of the United States of America.
3.2 Outstanding Liens. Mortgagor lawfully owns and is lawfully possessed
of the Vessel free and clear of all Liens, except the Permitted Liens under the
Indenture, and Mortgagor will and does hereby warrant and defend the title and
possession thereto and to every part thereof for the benefit of Mortgagee
against the claims and demands of all persons whomsoever subject to the
Permitted Liens and other matters permitted under the Indenture.
3.3 Compliance with Law. Mortgagor will comply with and satisfy all
applicable formalities and provisions of the laws and regulations of the United
States of America in order to perfect, establish and maintain this Mortgage, any
supplement or amendment hereto and any assignment hereof by Mortgagee as a first
priority mortgage upon the Vessel and upon all additions, improvements and
replacements
5
made in or to the same subject only to the Permitted Liens. Mortgagor shall
furnish to Mortgagee, from time to time, such proofs as Mortgagee may reasonably
request with respect to Mortgagor's compliance with the foregoing covenant.
Mortgagor shall promptly pay and discharge all United States Coast Guard fees
and expenses in connection with the recordation of this Mortgage, any supplement
or amendment thereto and any assignment thereof by Mortgagee. In the event that
any provisions hereof shall be deemed invalidated in whole or in part by reason
of any present or future law or any decision of any court, Mortgagor will
execute such other and further assurances and documents as in the reasonable
opinion of Mortgagee may be required to more effectually subject the Vessel to
the payment and performance of the Subsidiary Guarantee Obligations.
In addition, Mortgagor covenants that at all times it will comply in all
material respects with all applicable formalities and provisions of the laws and
regulations of the State of Mississippi, including but not limited to Applicable
Gaming Laws, including the Mississippi Gaming Control Act and the regulations
promulgated thereunder.
3.4 Operation of Vessel. Mortgagor will not cause or permit the Vessel to
be operated in any manner contrary to law in any material respect and Mortgagor
will not engage in any unlawful trade or violate any law in any material respect
or expose the Vessel to penalty or forfeiture, and will not do, or suffer or
permit to be done, anything which can or may injuriously affect the registration
or flag of the Vessel under the laws and regulations of the United States of
America. Mortgagor will not allow the Vessel to leave the continental United
States nor permit the Vessel to operate outside the navigation limits of the
insurance required pursuant to Section 3.12 of this Mortgage. Mortgagor will
keep the Vessel duly documented as a Vessel of the United States of America,
entitled to engage in the coastwise trade. Mortgagor will not operate the Vessel
in any manner other than as a stationary casino.
3.5 Payment of Taxes, Etc. Subject to the provisions of Section 4.5 of
the Indenture, Mortgagor will pay or cause to be paid prior to delinquency, all
taxes, assessments, governmental levies, fines and penalties imposed on
Mortgagor or on the Vessel.
3.6 Notice of Mortgage. Mortgagor will place, and at all times will
retain, properly certified copies of this Mortgage and a notice of this Mortgage
with the Certificate of Documentation of the Vessel on board the Vessel. In
addition, Mortgagor shall display a notice reading as follows, printed in plain
type of such size that each paragraph of reading matter shall cover a space not
less than six (6) inches wide by nine (9) inches high, and framed under glass,
shall be placed and kept prominently displayed on the Vessel:
6
NOTICE OF MORTGAGE
This Vessel is owned by Barden Mississippi Gaming, LLC, a Mississippi limited
liability company, and is covered by a First Preferred Vessel Mortgage in favor
of Foothill Capital Corporation, a California corporation, and a First Preferred
Vessel Mortgage in favor of The Bank of New York, a New York banking
association, as mortgagees, to secure payment of indebtedness. Under the terms
of said Mortgages, no owner, operator, charterer, cargo owner, subcharterer or
the master of this vessel, or any other person or persons has the right, power,
or authority to create, incur or permit to exist on this Vessel any lien
whatsoever other than liens for crew's wages and salvage and certain other liens
permitted by Mortgagee.
Notwithstanding the foregoing, from and after the date on which the
indebtedness secured by the First Preferred Vessel Mortgage in favor of Foothill
Capital Corporation has been paid in full, in lieu of the notice set forth in
the immediately preceding paragraph, Mortgagor shall display a notice reading as
follows, printed in plain type of such size that each paragraph of reading
matter shall cover a space not less than six (6) inches wide by nine (9) inches
high, and framed under glass, shall be placed and kept prominently displayed on
the Vessel:
NOTICE OF MORTGAGE
This Vessel is owned by Barden Mississippi Gaming, LLC, a Mississippi limited
liability company, and is covered by a First Preferred Vessel Mortgage in favor
of The Bank of New York, a New York banking corporation, as mortgagee, to secure
payment of indebtedness. Under the terms of said Mortgage, no owner, operator,
charterer, cargo owner, subcharterer or the master of this vessel, or any other
person or persons has the right, power, or authority to create, incur or permit
to exist on this Vessel any lien whatsoever other than liens for crew's wages
and salvage and certain other liens permitted by Mortgagee.
3.7 Release from Arrest. If a complaint is filed against the Vessel, or
if the Vessel is otherwise attached, arrested, levied upon or taken into custody
by virtue of any legal proceeding in any court, Mortgagor will promptly notify
Mortgagee thereof by telephone facsimile, confirmed by letter, and within
fifteen (15) days will cause the Vessel to be released by posting security and
will promptly notify Mortgagee thereof in the manner aforesaid.
3.8 Care of the Vessel. On the date hereof and at all times thereafter,
the Vessel is, and shall be, tight, staunch and strong and well and sufficiently
tackled, appareled, furnished and equipped and in all respects seaworthy. Except
as otherwise expressly permitted by Section 4.15 of the Indenture, Mortgagor
shall preserve and maintain the Vessel in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment and
7
shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof. At the request of Mortgagee, Mortgagor
shall certify monthly that all wages and other claims whatsoever which might
give rise to a Lien upon the Vessel were promptly and duly paid.
3.9 Access to Vessel. Mortgagor at all reasonable times will afford
Mortgagee or its authorized representatives full and complete access to the
Vessel for the purpose of inspecting the same and Mortgagor's papers and records
with respect thereto.
3.10 Documentation of Vessel. Mortgagor will keep the Vessel duly
documented in the name of Mortgagor as a vessel of the United States of America,
under the flag of the United States of America, entitled to engage in the
operations conducted by Mortgagor and eligible for the trade in which the Vessel
is operating.
3.11 Sale, Charter or Mortgage of Vessel. Except as otherwise expressly
permitted by the Indenture, Mortgagor covenants that at all times prior to the
indefeasible payment in full of the Subsidiary Guarantee Obligations, Mortgagor
shall neither make nor suffer to exist, nor enter into any agreement for, any
sale, charter, assignment, exchange, mortgage, transfer, Lien, hypothecation or
encumbrance of all or any part of the Vessel or any direct or indirect interest
in Mortgagor in violation of the Indenture. As used herein, "transfer" includes
the actual transfer or other disposition, whether voluntary or involuntary, by
law, or otherwise, except those transfers specifically permitted herein,
provided, however, that "transfer" shall not include the granting of utility or
other beneficial easements with respect to the Vessel which are granted by
Mortgagor and are reasonably necessary to the construction or operation of the
Property, as defined in the Deed of Trust.
3.12 Insurance. Mortgagor shall, at its sole expense, obtain, deliver to
and assign and maintain for the benefit of Mortgagee, during the term of this
Mortgage, insurance policies insuring the Vessel and liability insurance
policies, all in accordance with the requirements of Section 4.16 of the
Indenture. Mortgagor shall pay promptly when due any premiums on such insurance
policies and on any renewals thereof. Subject to the terms and conditions of the
Credit Facility (as defined in the Indenture), all such policies and renewals
thereof shall contain a noncontributory standard mortgagee or beneficiary
endorsement (Form 438 BFU or its equivalent) making losses payable to Mortgagee
as its interest may appear. In the case of any loss or damage to the Vessel
covered by insurance, Mortgagor shall give immediate notice to Mortgagee thereof
and all insurance monies, awards or other payments shall be included in Net
Proceeds and shall be applied in the same manner and in accordance with terms
and conditions contained in Section 4.10 of the Indenture. Mortgagor shall not,
without the prior written permission of Mortgagee to be given in Mortgagee's
sole and absolute discretion, do any act, or voluntarily suffer
8
or permit any act to be done, whereby any insurance required by this Section
3.12 shall or may be suspended, impaired or defeated, or suffer or permit the
Vessel to engage in any voyage, to carry any cargo, or engage in any other
activity not permitted under the policies of insurance then in effect without
procuring insurance covering the Vessel in all respects for such voyage or the
carriage of such voyage.
3.13 Requisition of Title to Vessel. In the event that the title or
ownership of the Vessel shall be requisitioned, purchased or taken by the United
States of America or any government of any state of the United States or any
other country or any department, agency or representative thereof, pursuant to
any present or future law, proclamation, decree, order or otherwise, the lien of
this Mortgage shall be deemed to attach to the claim for compensation, and the
compensation, purchase price, reimbursement or award for such requisition,
purchase or other taking of such title or ownership shall be included in Net
Proceeds and shall be applied in the same manner and in accordance with terms
and conditions contained in Section 4.10 of the Indenture. In the event of any
such requisition, purchase or taking, Mortgagor shall promptly execute and
deliver to Mortgagee such documents, if any, as in the opinion of counsel for
Mortgagee may be necessary or useful, at Mortgagee's election, to facilitate or
expedite the preservation of Mortgagee's lien on or the collection by Mortgagee
of such compensation, purchase price, reimbursement or award.
3.14 Requisition of Vessel but Not Title. In the event that the United
States of America or any government of any other country or any department,
agency or representative thereof shall not take the title or ownership of the
Vessel but shall requisition, charter, or in any manner take over the use of the
Vessel pursuant to any present or future law, proclamation, decree, order or
otherwise, all charter hire and compensation resulting therefrom and any sum
payable by reason of the loss of or injury to or depreciation of the Vessel
resulting from such requisitioning, chartering or taking of the use of the
Vessel shall be included in Rents and shall be the property of Mortgagor,
subject to the Assignment of Rents contained in the Deed of Trust.
3.15 Execution of Additional Documents. Mortgagor agrees to execute all
additional documents, instruments, UCC Financing Statements and other agreements
that Mortgagee may reasonably deem necessary or appropriate, in form and
substance satisfactory to Mortgagee, to keep this Mortgage in effect, to better
reflect the true intent of this Mortgage, and to consummate fully all of the
transactions contemplated hereby and by the Deed of Trust, the Notes, the
Guarantees and the other Security Documents.
9
ARTICLE 4.
EVENTS OF DEFAULT AND REMEDIES
4.1 Events of Default. Subject to any applicable cure period provided for
in the Indenture or in this Mortgage, any of the following shall be deemed to be
an "Event of Default" hereunder if not cured within such applicable cure period:
4.1.1 The occurrence of one or more "Events of Default" (as
defined in Section 6.1 of the Indenture) shall constitute an "Event of Default"
under this Mortgage (including, without limitation, by reason of any
cross-default provision in Section 6.1 of the Indenture).
4.1.2 The occurrence of one or more "Events of Default" (as
defined in the Deed of Trust) shall constitute an "Event of Default" under this
Mortgage (including, without limitation, by reason of any cross-default
provision in Section 8.1 of the Deed of Trust).
4.1.3 Failure of Mortgagor to perform any of the terms, covenants
and conditions in this Mortgage; provided, however, it shall not be an Event of
Default hereunder if such failure is curable, Mortgagor commences to cure such
failure within thirty (30) days of notice from Mortgagee, and Mortgagor
diligently prosecutes such cure to completion within sixty (60) days after
notice of such failure, but in no event beyond the maturity date of the Notes.
4.1.4 Any statement, representation or warranty given by Mortgagor
to Mortgagee in any of the Security Documents, in connection with the Indenture
or in any other document provided by Mortgagor, including this Mortgage, is
found to be materially false or misleading and such statement, representation or
warranty continues to be materially false or misleading within sixty (60) days
after notice thereof from Mortgagee, but in no event beyond the maturity date of
the Notes.
4.1.5 Any transfer of the Property or any portion thereof in
violation of Section 3.11 hereof.
4.2 Remedies. Upon the occurrence and during the continuance of each and
every Event of Default, Mortgagee shall have the right to:
4.2.1 Accelerate the maturity date(s) of any or all of the
Subsidiary Guarantee Obligations (except that such acceleration shall be
automatic if the Event of Default is caused by any of the events described in
Sections 6.1 (12) and 6.1 (13) of the Indenture), declare the outstanding
principal amount of the Notes and the interest accrued thereon, and all other
Subsidiary Guarantee Obligations, to be due and payable immediately, and upon
such declaration such principal and interest and other Subsidiary Guarantee
Obligations shall immediately become due and payable
10
without demand, presentment, notice or other requirements of any kind (all of
which Mortgagor waives);
4.2.2 Exercise all the rights and remedies in foreclosure and
otherwise given to Mortgagee by the laws and regulations of the United States of
America or of the country wherein the Vessel shall then be found or of any
country wherein the Vessel may thereafter be found or of any other applicable
jurisdiction;
4.2.3 Bring suit at law, in equity or in admiralty, as it may be
advised, to recover judgment for any and all amounts secured hereby and collect
the same from Mortgagor and/or out of any and all property of Mortgagor covered
by this Mortgage;
4.2.4 Take the Vessel without legal process wherever the same may
be; and Mortgagor or other person in possession, forthwith upon demand of
Mortgagee shall surrender to Mortgagee possession of the Vessel and 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 the sale thereof by court proceedings or pursuant to the
provisions set forth in 4.3 below, all costs, expenses, charges, damages or
losses by reason of such use; and if at any time Mortgagee shall avail itself of
the right herein given it to take the Vessel, Mortgagee shall have the right to
dock the Vessel for a reasonable time at any dock, pier, or other premises of
Mortgagor or leased by Mortgagor without charge, or to dock it at any other
place at the cost and expense of Mortgagor;
4.2.5 Without being responsible for loss or damage, sell the
Vessel at any place and at such time as Mortgagee may specify and in such manner
as Mortgagee may deem advisable free from any claim by Mortgagor in admiralty,
in equity, at law or by statute, after first giving notice of the time and place
of sale with a general description of the Vessel in the following manner:
(a) By publishing such notice three times a week for two
consecutive weeks, with the last date of publication not more than 20 nor less
than five days immediately preceding the sale, in a daily newspaper of general
circulation published in Tunica, Mississippi and in the Journal of Commerce;
(b) If the place of sale should not be Tunica, Mississippi, then
also by publication of a similar notice in a daily newspaper, if any, published
at the place of sale; and
(c) By mailing a similar notice to Mortgagor on the day of first
publication.
11
4.2.5.1 Mortgagor may, for any cause it deems expedient, postpone
the sale of all or any portion of the Vessel until it shall be completed and, in
every case, notice of postponement shall be given by public announcement thereof
at the time and place last appointed for the sale and from time to time
thereafter Mortgagor may postpone such sale by public announcement at the time
fixed by the preceding postponement.
4.2.5.2 Any such sale may be conducted without bringing the Vessel
to be sold to the place designated for such sale and in such manner as Mortgagee
may deem to be for its best advantage. 4.2.6 Mortgagor hereby consents to the
appointment of a consent keeper or substitute custodian by Mortgagee with the
costs thereof to be a cost of the sale to be paid from the proceeds of the sale
or by Mortgagor.
4.2.6 Mortgagor hereby consents to the appointment of a consent
keeper or substitute custodian by Mortgagee with the costs thereof to be a cost
of the sale to be paid from the proceeds of the sale or by Mortgagor.
4.3 Sale of Vessel by Mortgagee. Any sale of the Vessel made by Mortgagee
in pursuance of this Mortgage, whether under the power of sale hereby granted or
any judicial proceedings, shall operate to divest all right, title and interest
of any nature whatsoever of Mortgagor therein and thereto, and shall bar
Mortgagor, its successors and assigns, and all persons claiming by, through or
under them. At any such sale Mortgagee or any other holders of the Notes may bid
for and purchase the Vessel and upon compliance with the terms of sale may hold,
retain and dispose of the Vessel without further accountability therefor.
4.4 Mortgagee to Sign for Mortgagor. For purposes of any sale of the
Vessel made by Mortgagee in pursuance of this Mortgage, whether under the power
of sale hereby granted or any judicial proceedings, Mortgagee is hereby
appointed attorney-in-fact of Mortgagor to execute and deliver to any purchaser
aforesaid and is hereby vested with full power and authority to make, in the
name and on behalf of Mortgagor, a good conveyance of the title to the Vessel.
With respect to the foregoing power of attorney and each and every other power
of attorney granted elsewhere herein (including without limitation Section 4.5
hereof) or in the other Security Documents, Mortgagee, by its acceptance hereof,
acknowledges and understands that the Gaming Authorities may require that
Mortgagee or any other person granted a right to act for or on behalf of
Company, Capital, Mortgagor or any other Guarantor obtain Gaming Approvals
before, during or after the exercise thereof.
4.5 Mortgagee to Collect Hire, Etc. Mortgagee is hereby appointed
attorney-in-fact of Mortgagor upon the happening of and during, but only during,
the continuance of any Event of Default, in the name of Mortgagor (a) to demand,
collect, receive, compromise and sue for, so far as may be permitted by law, all
Rents of the Vessel and all amounts due from underwriters under any insurance
thereon as payment of losses or as return premiums or otherwise, and all other
sums, due or to
12
become due at the time of the happening of and during, but only during, the
continuance of any Event of Default in respect of the Vessel, or in respect of
any insurance thereof from any person whomsoever, and (b) to make, give and
execute in the name of Mortgagor acquittance, receipts, releases, or other
discharges for the same, whether under seal or otherwise, and (c) to endorse and
accept in the name of Mortgagor all checks, notes, drafts, warrants, agreements
and all other instruments with respect to the foregoing. The rights of Mortgagee
provided in this Section 4.5 are in addition to all other rights of Mortgagee
provided in this Mortgage and in the other Security Documents (including,
without limitation, Section 3.12 of this Mortgage) and the provisions of this
Section 4.5 shall not be construed to limit any of such other rights.
4.6 Right to a Receiver. If any legal proceedings shall be taken to
enforce any right under this Mortgage, so long as an Event of Default has
occurred and continues to exist, Mortgagee shall be entitled as a matter of
right to the appointment of a receiver of the Vessel and the Rents due or to
become due and arising from the operation thereof.
4.7 Suits to Protect the Vessel. Mortgagee shall have the power and
authority to institute and maintain any suits and proceedings as Mortgagee, in
its sole and absolute discretion, may deem expedient (a) to prevent any
impairment of the Vessel by any acts which may be unlawful or in violation of
the terms of this Mortgage or any of the other Security Documents, or (b) to
restrain the enforcement of or compliance with any legislation or other
Applicable Laws that may be unconstitutional or otherwise invalid or if the
enforcement of or compliance with such enactment, rule or order would impair the
security hereunder or be prejudicial to the interest of Mortgagee or the holders
of the Notes. Mortgagee shall give notice to Mortgagor promptly following
institution of any such suit or proceeding.
4.8 Costs of Mortgagee. Mortgagee shall be entitled to recover judgment
against Mortgagor for the amount of Mortgagee's reasonable costs and expenses of
enforcement of the terms and provisions of this Mortgage, including reasonable
attorneys' fees and costs and any necessary advances, expenses and liabilities
made or incurred by Mortgagee in exercising its rights and remedies hereunder,
after the occurrence of and during, but only during, the continuance of an Event
of Default.
4.9 Right of Mortgagee. Each and every power and remedy herein given to
Mortgagee shall be cumulative and shall be in addition to every other power and
remedy herein given or given in the Deed of Trust or the other Security
Documents or now or hereafter existing at law, in equity, in admiralty or by
statute, and each and every power and remedy whether herein given or otherwise
existing may be exercised from time to time and as often and in such order as
may be deemed expedient by Mortgagee, and the exercise or the beginning of the
exercise of any power to remedy shall not be construed to be a waiver of the
right to exercise at the
13
same time or thereafter any other power or remedy. No delay or omission by
Mortgagee in the exercise of any right or power or in the pursuance of any
remedy accruing upon any Event of Default shall impair any such right, power or
remedy or be construed to be a waiver of any Event of Default or be construed to
be any acquiescence therein; nor shall the acceptance by Mortgagee of any
security or of any payment of or on account of any of the Subsidiary Guarantee
Obligations after any Event of Default or of any payment on account of any past
Event of Default be construed to be a waiver of any right to take advantage of
any future Event of Default or of any past Event of Default not completely cured
thereby.
4.10 Restoration of Position. If Mortgagee shall have proceeded to
enforce any right or remedy under this Mortgage by foreclosure, entry or
otherwise and such proceedings shall have been discontinued or abandoned for any
reason, then, and in every such case Mortgagor and Mortgagee shall be restored
to their former positions and rights hereunder, and all rights, powers and
remedies of Mortgagee shall continue as if no such proceedings had occurred or
had been taken.
4.11 Proceeds of Sale. The proceeds of any sale of the Vessel and the net
earnings from the hire or from any operation or use of the Vessel by Mortgagee
under any of the powers herein specified and any and all other money received by
Mortgagee pursuant to or under the terms of this Mortgage or in any proceedings
hereunder, the application of which has not elsewhere been specifically
provided, shall be applied as follows:
4.11.1 To the payment of all reasonable expenses and charges,
including the expenses of any sale, and expenses of any retaking, attorneys'
fees, court costs, keepers' fees, necessary repairs and any other expenses or
advances made or incurred by Mortgagee in the protection of its rights or the
pursuance of its remedies hereunder; then
4.11.2 To the payment in full of any amounts then due and unpaid
under the Subsidiary Guarantee Obligations; then
4.11.3 To Mortgagor or to whomsoever may be then entitled thereto.
4.12 Gaming Approvals. By its acceptance hereof, Mortgagee acknowledges
that Mortgagor's right to grant a Lien on, and Mortgagee's right to enforce a
Lien on and foreclose on, sell, possess and/or exercise any other rights or
remedies pursuant to the terms hereof with respect to certain gaming equipment
or other property used in the gaming business of Mortgagor and included in the
Vessel and Gaming Approvals and any liquor and liquor licenses and permits
included in the Vessel may be limited, proscribed or prohibited under Applicable
Gaming Laws or applicable liquor laws and regulations of the State of
Mississippi or other Government Authorities and that Mortgagor and Mortgagee are
subject to Applicable
14
Gaming Laws and such other laws and regulations with respect to such assignment,
granting, enforcement, foreclosure, sale and/or possession.
ARTICLE 5.
MISCELLANEOUS PROVISIONS
5.1 Addresses for Notices, Etc. Any notices or other communications to
Mortgagor or Mortgagee required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by telex, by facsimile or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
Mortgagee: THE BANK OF NEW YORK,
a New York banking corporation
101 Barclay Street - 21W
New York, New York 10286
Attention: Corporate Trust Administration
Facsimile: (212) 896-7298
Mortgagor: BARDEN MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company
163 Madison Avenue, Suite 2000
Detroit, Michigan 48226
Attention: Don Barden
Facsimile: (313) 496-8400
with a copy to: THE MAJESTIC STAR CASINO
a Delaware limited liability company
1 Buffington Harbor Drive
Gary, Indiana 46406-3000
Attention: Don Barden
Facsimile: (219) 977-7811
Mortgagor or Mortgagee by notice to each other may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to Mortgagor or Mortgagee shall be deemed to have been given or
made as of the date so delivered, if personally delivered; when answered back,
if telexed; when receipt is acknowledged, if telecopied; and five Business Days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
5.2 Mortgagee's Expenses, Including Attorney's Fees. Regardless of the
occurrence of a Default or Event of Default, Mortgagor agrees to pay to
Mortgagee
15
any and all advances, charges, costs and expenses, including reasonable fees and
expenses of counsel and any experts or agents, that Mortgagee may reasonably
incur in connection with (i) the administration of this Mortgage, including any
amendment thereto or any workout or restructuring, (ii) the creation,
perfection, or continuation of the Lien created by this Mortgage in the Vessel
or the protection of its first priority in the Vessel, including the discharging
of any prior or junior lien or adverse claim against the Vessel or any part
thereof that is not permitted hereby or by the Indenture, (iii) the custody,
preservation or sale of, collection from, or other realization upon, any part of
the Vessel, (iv) the exercise or enforcement of any of the rights, powers, or
remedies of Mortgagee under this Mortgage or under any Applicable Laws
(including attorneys' fees and expenses actually incurred by Mortgagee in the
maintenance or foreclosure of the Lien of this Mortgage) or bankruptcy
proceeding, (v) Mortgage's due inscription and recordation in the National
Vessel Documentation Center, (vi) the failure by Mortgagor to perform or observe
any of the provisions hereof or (vii) any payments or advances made by Mortgagee
in order to prevent or protect the Vessel from harm or damage. All such amounts
and all other amounts payable hereunder shall be payable upon demand, together
with, if paid after the due date, interest at the Default Rate.
5.3 Counterparts. This Mortgage may be executed in any number of
counterparts and all such counterparts executed and delivered each as an
original shall constitute but one and the same instrument.
5.4 Interest of Mortgagee. The interest of Mortgagor in the Vessel and
the interest mortgaged by this Mortgage is 100% absolute and sole ownership.
5.5 Survivorship of Covenants. All of the covenants, promises,
stipulations and agreements of Mortgagor contained herein shall bind Mortgagor
and its successors and assigns and shall inure to the benefit of Mortgagee and
its successors and assigns.
5.6 Amendments. This Mortgage may not be modified, supplemented or
amended in any respect, or any waiver given in regard to any of the provisions
hereof, except with the written consent of Mortgagee.
5.7 Discharge of Lien. When the Subsidiary Guarantee Obligations have
been indefeasibly paid and satisfied in full, Mortgagee shall, at Mortgagor's
expense, promptly execute and deliver to Mortgagor such documents as Mortgagor
shall reasonably request to evidence the surrender and discharge of the lien
hereof upon the Vessel.
5.8 Incorporation into Mortgage. The Whereas Clauses and the Granting
Clause of this Mortgage are incorporated in and are made a part of this
Mortgage.
16
5.9 GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF NEW YORK, EXCEPT (1) TO THE EXTENT THAT
THE PROVISIONS OF CHAPTER 313 OF TITLE 46 OF THE UNITED STATES CODE AND THE
GENERAL MARITIME LAW OF THE UNITED STATES ARE APPLICABLE, AND (2) THE PROVISIONS
FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIEN AND SECURITY INTEREST
CREATED PURSUANT TO THIS MORTGAGE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MISSISSIPPI.
5.10 Conflict. In the event that the provisions of this Mortgage shall
conflict with or be inconsistent with the provisions of the Indenture, the terms
and provisions of the Indenture shall control and govern the obligations, rights
and responsibilities of the parties hereto.
17
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the day
and year first above written.
BARDEN MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company
By: /s/ Don H. Barden
-----------------------------------
Name: Don H. Barden
Title: Manager
ACKNOWLEDGMENT
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 6th day of December, 2001, within my
jurisdiction, the within named Don Barden, duly identified before me, who
acknowledged to me that he is the Manager of BARDEN MISSISSIPPI GAMING, LLC, a
Mississippi manager-managed limited liability company, and that for and on
behalf of said limited liability company and as its act and deed, he executed
the above and foregoing instrument, after first having been duly authorized by
said limited liability company so to do.
Janis I. Rohrer
-----------------------------------
Notary Public
My commission expires:
[SEAL]
- ------------------------------------
(Affix official seal, if applicable)