Exhibit 4.15
[TUNICA]
FIRST PREFERRED VESSEL MORTGAGE
ON THE WHOLE OF THE FITZGERALDS TUNICA
(U.S.C.G. Official Number 262757)
Maximum Principal Amount of $15,000,000
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
FOOTHILL CAPITAL CORPORATION, A CALIFORNIA CORPORATION
having an address of
One Boston Plaza
Suite 1800
Boston, Massachusetts 02108
Mortgagee
Dated as of December 6, 2001
Discharge amount: $15,000,000 (or such lesser amount of principal as
shall have been advanced and remain outstanding) Together With Interest,
Expenses Attorneys' Fees and Costs And Performance of Mortgage Covenants
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
711 Lucky Lane
Robinsville, MS 38664
a limited liability company organized and existing under and by virtue of the
laws of the State of Mississippi ("Mortgagor") in favor of Foothill Capital
Corporation, a California corporation ("Mortgagee"), whose address is One Boston
Plaza, Suite 1800, Boston, Massachusetts 02108, as lender under that certain
Loan and Security Agreement, dated as of December __, 2001 (as same may be
amended, restated, modified, renewed or supplemented from time to time
hereafter, the "Loan Agreement"), by and among Mortgagor, Barden Colorado
Gaming, LLC, a Colorado limited liability company ("BCG"), Barden Nevada Gaming,
LLC, a Nevada limited liability company ("BNG") (Mortgagor, BCG, and BNG are
referred to hereinafter each individually as "Borrower," and individually and
collectively, jointly and severally, as "Borrowers"), Majestic Investor
Holdings, LLC, a Delaware limited liability company ("Parent"), and 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 Loan Agreement,
Mortgagee has agreed to provide financing to Borrowers in the aggregate stated
maximum principal amount of $15,000,000.
C. 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
Obligations, as defined in the Loan Agreement.
D. In order to further secure the due and punctual payment and
performance of all of the 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, but subject to Permitted Liens (as defined in the Loan Agreement), the
following (but excluding in each and
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every case all Excluded Assets, as defined in the Deed of Trust), 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:
NAME OFFICIAL 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, 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
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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
Loan Agreement, this Mortgage or any other Loan 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 pursuant hereto,
and the Mortgagee is hereby authorized to receive any and all such property as
and for additional security for the 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
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 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 Loan Agreement or the Deed of Trust
shall have the definitions provided in the Loan Agreement 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;
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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.
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 Loan Agreement, the Guaranty and the other Obligations in an
aggregate principal amount of up to FIFTEEN MILLION DOLLARS ($15,000,000), as
the total of all possible advances that may be made under the Loan Documents,
together with interest, attorneys' fees and costs of performance of the
Obligations and the covenants of this Mortgage, the Guaranty, the Deed of Trust
and the other Loan Documents. The discharge amount is the same as such total
amount, together with interest, expenses, attorneys' fees and costs and
performance of the Obligations and the covenants of this Mortgage, the Guaranty,
the Deed of Trust and the other Loan 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 Loan Agreement; 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 Loan Agreement.
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
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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
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 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 the 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 the Loan
Agreement, 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:
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,
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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 the Loan Agreement,
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 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.
3.11.1 Prohibitions. Except as otherwise expressly
permitted by the Loan Agreement, Mortgagor covenants that at all times prior to
the indefeasible payment in full of the 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 Loan Agreement. 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 the Loan
Agreement. Mortgagor shall pay promptly when due any premiums on
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such insurance policies and on any renewals thereof. 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 the Loan Agreement, 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 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 payable to Mortgagee, who shall be
entitled to receive the same and hold and apply such compensation, purchase
price, reimbursement or award in the same manner and in accordance with terms
and conditions contained in the Loan Agreement. 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 Loan
Agreement, the Guaranty and the other Loan Documents.
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ARTICLE 4
EVENTS OF DEFAULT AND REMEDIES
4.1 Events of Default. Subject to any applicable cure period
provided for in the Loan Agreement 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 the Loan Agreement) shall constitute an "Event of Default" under this
Mortgage (including, without limitation, by reason of any cross-default
provision thereof).
4.1.2 Failure to perform any of the terms, covenants and
conditions in this Mortgage or any of the other Loan Documents beyond any
applicable grace or cure period; provided, however, that in the event such
failure is not susceptible of cure within such applicable period, it shall not
be an Event of Default hereunder if such failure is curable, Mortgagor commences
to cure such failure within such applicable grace or cure period, and Mortgagor
diligently prosecutes such cure to completion within 60 days after notice of
such failure.
4.1.3 Any statement, representation or warranty given by
Mortgagor to Mortgagee in any of the Loan Documents, in connection with the Loan
Agreement 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 60 days after notice from Mortgagee of such statement, representation or
warranty was made.
4.1.4 Any transfer of the Property or any portion thereof
without the prior consent of Mortgagee in violation of Section 3.11 hereof.
4.1.5 Any transfer of any direct or interest in Mortgagor
without the prior consent of Mortgagee as provided in 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
Obligations (except that such acceleration shall be automatic if the Event of
Default is caused by any of the events described in Sections 8.4 and 8.5 of the
Loan Agreement), declare the outstanding principal amount under the Loan
Documents and the interest accrued thereon, and all other Obligations, to be due
and payable immediately, and upon such declaration such principal and interest
and other Obligations shall immediately become due and payable 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.
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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.
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.
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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 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 Loan 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 the
Mortgagor, Parent, any Borrower, or any other Guarantor obtain approval under
Applicable Gaming Laws 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 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 Loan 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
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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 Loan 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. 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 Loan
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 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
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,
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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 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 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 telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
Mortgagee: Foothill Capital Corporation,
a California corporation
One Boston Plaza, Suite 1800
Boston, Massachusetts 02108
Attention: Business Finance Division Manager
Fax No.: (617) 523-1697
Mortgagor: BARDEN MISSISSIPPI GAMING, LLC.
a Mississippi limited liability company
163 Madison Avenue, Suite 2000
Detroit, Michigan 48226
Attention: Don Barden
Fax No.: (313) 496-8400
with a copy to: THE MAJESTIC STAR CASINO.
a Delaware limited liability company
1 Buffington Harbor Drive
Gary, Indiana 46406-3000
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Attention: Don Barden
Fax No.: (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 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 Loan Agreement, (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 Obligations have been
indefeasibly paid and satisfied in full, Mortgagee shall, at Mortgagor's
expense, promptly execute and deliver to
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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.
5.9 GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA 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 Loan
Agreement, the terms and provisions of the Loan Agreement shall control and
govern the obligations, rights and responsibilities of the parties hereto. This
Mortgage is a Loan Document.
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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/ Michael E. Kelly
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Name: Michael E. Kelly
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Title: EVP, COO, CFO
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