EXHIBIT 10.26
FIRST PREFERRED SHIP MORTGAGE
This First Preferred Ship Mortgage is made as of October 31, 2003, by
PRINCESA PARTNERS, a Florida general partnership having its principal office at
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Mortgagor"), in favor
of FIRST NATIONAL BANK, having its principal office at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Mortgagee").
RECITALS
First. The Mortgagor is the sole owner of the whole (100%) of the
vessel Princesa, official number 1073261, which is documented
under and pursuant to the laws of the United States of
America.
Second. The Mortgagee has agreed to make certain loans to the
Mortgagor in an aggregate amount of up to $5,650,000 (the
"Loan"), pursuant to that certain Loan Agreement between
Mortgagor, certain other parties affiliated with Mortgagor and
Mortgagee of even date herewith ("Loan Agreement") and such
other loan documents as provided for in the Loan Agreement
("Loan Documents"). Capitalized terms used but not otherwise
defined herein have the meaning assigned thereto in the Loan
Agreement. To induce Mortgagee to make the Loan, Mortgagor has
agreed to enter into this First Preferred Ship Mortgage in
favor of Mortgagee.
Third. The Mortgagor has duly authorized and directed the execution
of this Mortgage as a first preferred ship mortgage under the
Ship Mortgage Act, 1920, as amended and recodified, 46 U.S.C.
Section 31321 et seq. (the "Ship Mortgage Act") on the said
vessel.
NOW, THEREFORE, in order to secure the due and punctual payment of all
indebtedness evidenced by the Notes (including without limitation interest
thereon) and all other sums that may become payable and performance of all
covenants and agreements under the Loan Agreement and any other Loan Document
and all other sums advanced by the Mortgagee hereunder (collectively, the
"Secured Obligations"), and in consideration of the premises and in order to
induce the Mortgagee to make or maintain the advances evidenced by the Notes and
in consideration of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged:
THE MORTGAGOR hereby grants, bargains, sells, conveys, transfers,
assigns, releases, pledges, grants a security interest in, sets over,
hypothecates and mortgages unto the Mortgagee, its successors and assigns, the
whole (100%) of the vessel described on Schedule A attached hereto together with
all of its engines, boilers, machinery, covers, masts, bowsprits, boats, spars,
anchors, cables, chains, rigging, tackle, capstans, fittings, tools, pumps and
pumping equipment, gear, apparel, furniture, equipment, spare parts, supplies,
accessions and accessories and all other appurtenances thereunto appertaining
and belonging, whether now owned or hereafter acquired, whether on board or not
and also any and all additions, improvements and replacements hereafter made in,
for or to the Vessel, or any part thereof, or in or to its equipment and
appurtenances
aforesaid, and all earnings, hire, freight or other monies obtained through the
use and operation thereof and all proceeds of the foregoing (all of the
foregoing referred to herein as the "Vessel");
TO HAVE AND TO HOLD the Vessel unto the use and benefit of Mortgagee,
its successors and assigns, and to their own use and benefit forever;
PROVIDED, HOWEVER, that if Mortgagor shall pay or cause to be paid in
full to Mortgagee all outstanding and unpaid Secured Obligations, and if the
Mortgagee shall have no obligation to advance additional funds to Mortgagor
under the Loan Agreement, then upon payment by the Mortgagor of any recording or
other fees attendant to filing the satisfaction of this Mortgage with the United
States Coast Guard and thenceforth this Mortgage and everything herein contained
shall cease and be null and void; otherwise this Mortgage shall be and remain in
full force and effect; and
FURTHER PROVIDED, HOWEVER, that the Vessel is mortgaged to the
Mortgagee subject to the following further representations, warranties,
covenants, agreements, conditions and provisions of this Mortgage.
ARTICLE I.
REPRESENTATIONS AND WARRANTIES
The Mortgagor hereby represents, warrants, covenants and agrees as
follows:
1.01 Mortgage is Legal, Valid and Binding. This Mortgage constitutes
a legal, valid and binding obligation of Mortgagor and, upon the filing hereof
with the United States Coast Guard National Vessel Documentation Center, creates
a first preferred ship mortgage in the Vessel that is enforceable against
Mortgagor in accordance with its terms.
1.02 Title to Vessel. The Mortgagor is the sole, true and lawful
owner and is lawfully possessed of the Vessel, and the Mortgagor owns all right,
title and interest in and to the Vessel free and clear of all complaints in rem,
libels, liens (maritime or otherwise), charges, claims, security interests,
mortgages or other encumbrances of any kind or nature except in favor of
Mortgagee. 1.03 Citizen of the United States. Mortgagor is a citizen of the
United States within the meaning of the Shipping Act, 1916, as amended, for the
purpose of operating the Vessel in coastwise trade and is entitled to own and
operate the Vessel under its marine documents.
ARTICLE II.
COVENANTS
Mortgagor covenants and agrees as follows:
2.01 Covenants in Loan Agreement. Mortgagor will fully perform all
covenants, agreements, obligations and conditions required of Mortgagor in the
Loan Agreement.
2.02 Maintain Citizenship and Documentation of Vessel. The Mortgagor
will at all times maintain the Vessel, so long as it shall be subject to the
lien hereof as a vessel of the United States and shall maintain the
documentation of the Vessel under the laws of the United
States, and will maintain the same hailing port for the Vessel as set forth in
its original documentation papers unless a change of said port is authorized by
the Mortgagee. Mortgagor shall continue to be a citizen of the United States
entitled to own and operate the Vessel in the U.S. coastwise trade under its
marine documents, which Mortgagor shall maintain in full force and effect.
2.03 Title to Vessel. Except to the limited extent permitted under
Section 2.11 of this Mortgage, Mortgagor shall continue to own and possess the
whole of the Vessel free from all complaints in rem, libels, liens (maritime or
otherwise), charges, claims, security interests, mortgages, pledges or other
encumbrances of any kind or nature except in favor of Mortgagee. The Mortgagor
hereby does and will forever warrant and defend the title and possession of the
Vessel, and each part thereof, for the benefit of the Mortgagee, against any and
all claims and demands whatsoever.
2.04 Preservation of Mortgage Lien. The Mortgagor will comply with
and satisfy all provisions of law, including without limitation the Ship
Mortgage Act, and will take any and all such other action as may be required
from time to time in order to establish and maintain this Mortgage as a valid
and perfected first preferred ship mortgage under the Ship Mortgage Act on the
Vessel in accordance with the terms hereof.
2.05 Transfer of Vessel. The Mortgagor shall not sell or transfer the
Vessel, or place or permit the Vessel to be placed under any foreign
registration or flag or change the hailing port of the Vessel, or do or suffer
or permit anything to be done, including placing the Vessel under charter, which
can or might adversely affect the registration or documentation of the Vessel
under the laws or regulations of the United States, without the prior written
consent of the Mortgagee.
2.06 Taxes. The Mortgagor will from time to time pay or discharge or
cause to be paid or discharged, as they become due and payable, all taxes,
assessments, and governmental charges levied or assessed or imposed upon the
Vessel.
2.07 Seizure of Vessel. If the Vessel shall at any time, while
subject to the lien hereof, be libeled, seized, detained, levied or attached
under process or color of legal authority for any cause whatsoever, the
Mortgagor will forthwith notify the Mortgagee in writing and, without expense to
the Mortgagee, within ten days from the time of such libel, seizure, detention,
levy or attachment, either cause the Vessel to be released by filing an
undertaking or stipulation or otherwise as may be lawfully permitted or furnish
the Mortgagee additional security of a value acceptable to the Mortgagee. If the
Mortgagor shall fail or neglect to furnish additional security to the Mortgagee
or otherwise to release the Vessel from libel, seizure, detention, levy or
attachment, the Mortgagee may (but need not) furnish security to release the
Vessel, and if, as a result of such libel, seizure or attachment, the Vessel
shall be sold at a marshal's sale or otherwise under legal process, any
insurance money, excess proceeds and other sums recoverable with respect to the
Vessel shall be paid to the Mortgagee and shall be applied against the Secured
Obligations.
2.08 Insurance. The Mortgagor will obtain and maintain insurance with
respect to the Vessel as required by the Loan Agreement.
2.09 Operation and Maintenance of Vessel. The Mortgagor will operate
or take all actions necessary to cause the Vessel to be operated in full
compliance with (a) each applicable law, treaty, convention, order, rule or
regulation of the United States, any state or any other jurisdiction (foreign or
otherwise) wherein operated or any department or agency thereof, including
without limitation the Federal Maritime Commission, the United States Maritime
Administration, the United States Department of Transportation, the United
States Department of Homeland Security, the United States Coast Guard, the
United States Customs Service, the United States Transportation Security
Administration, the United States Department of the Treasury, and the Federal
Communications Commission. The Mortgagor will not remove the Vessel from the
limits of the United States except in the ordinary course of Mortgagor's gaming
cruises to no-where and subsequent return to the limits of the United States.
The Mortgagor will at all times and at its own cost and expense maintain and
preserve the Vessel in good condition, working order and repair, ordinary wear
and tear excepted, and will cause the Vessel to be kept fully equipped and such
equipment to be kept in good condition, working order and repair, ordinary wear
and tear excepted; provided, however, that Mortgagor shall make no structural
changes or alterations in the Vessel in excess of $25,000 without the prior
written consent of Mortgagee in each instance.
2.10 Creation of Liens. Neither the Mortgagor nor any other Person
(including without limitation any master or charterer of the Vessel) has or
shall have any right, power or authority to create, incur or permit to be placed
or imposed upon the Vessel, or any part thereof, or any of its cargo, freights,
profits or hire, any lien whatsoever other than (a) the lien of this Mortgage or
other liens in favor of Mortgagee or permitted under the Loan Agreement, (b)
liens for damages arising out of tort, (c) liens for crew members' wages, (d)
liens for general average or salvage (including contract salvage), or (e)
maritime and other liens for repair, services, and supplies to the Vessel
arising in the ordinary course of business; provided, however, that any
permitted lien for repairs, services or supplies under Subsection (e) above
shall be subject and subordinate to the lien of this Mortgage and further
provided, however, that the Mortgagor shall, no later than 20 days after they
become due, pay, satisfy or discharge any and all claims that, if unpaid, might
constitute or become liens or charges upon the Vessel, and any liens or charges
which may be levied against or imposed upon the Vessel.
2.11 Requisition of Title to Vessel. In the event that title or
ownership of the Vessel shall be requisitioned, purchased or taken by any
government of any country or any agent thereof, the lien of this Mortgage shall
be deemed to attach to the claim for compensation and the compensation, purchase
price, reimbursement or award shall be payable to the Mortgagee. The Mortgagor
shall promptly execute and deliver such documents, if any, and shall promptly do
and perform such acts, if any, as in the opinion of the Mortgagee may be
necessary or useful to facilitate or expedite the collection by the Mortgagee of
such compensation, purchase price, reimbursement or award.
2.12 Notice of Loss or Adverse Claim. In the event of (a) the actual
total loss of the Vessel; (b) any requisition of the use of or title to, or
seizure or forfeiture of, the Vessel by any governmental authority or any other
party, or the attachment, levying upon, filing of an action in rem against,
detention, sequestration or taking into custody of the Vessel in connection with
any proceeding; (c) any marshal's or other sale of the Vessel; or (d) any
casualty, accident or damage
to the Vessel involving an amount in excess of $25,000, Mortgagor shall
forthwith give notice by letter and facsimile to the Mortgagee.
2.13 Copies of Mortgage and Notice. Mortgagor shall carry, or cause
to be carried, a certified copy of this Mortgage and of any amendments and
supplements hereto, or assignments hereof, with the Vessel's documents and on
board the Vessel with the ship's papers and will exhibit the same or cause the
same to be exhibited, on demand, to any Person having business with the Vessel
and to any representative of the Mortgagee. Unless otherwise approved by the
Mortgagee, a notice reading as follows, printed in plain type of such size that
it shall cover a space not less than six inches wide by nine inches high,
protected from exposure to the elements, shall be kept prominently displayed in
the wheelhouse and in the Captain's cabin on the Vessel:
NOTICE OF MORTGAGE
THIS VESSEL IS COVERED BY A FIRST PREFERRED SHIP MORTGAGE
FROM PRINCESA PARTNERS, THE MORTGAGOR,
TO FIRST NATIONAL BANK, THE MORTGAGEE.
2.14 Further Action. From time to time, Mortgagor shall, and the
Mortgagee may on behalf of Mortgagor, execute and deliver such other and further
instruments and assurances and take such other actions as in the opinion of
Mortgagee's counsel may reasonably be required to subject the Vessel more
effectually to the lien hereof and to the payment of the Secured Obligations and
for operation of the Vessel as herein provided, and (in case of an Event of
Default) to effectuate sales as provided in Article III hereof.
ARTICLE III.
DEFAULT
3.01 Events of Default. The occurrence of any of the following events
shall constitute an event of default (an "Event of Default):
(a) An Event of Default as defined under the Loan Agreement;
(b) The failure by the Mortgagor to perform any covenant herein
contained.
3.02 Remedies. If an Event of Default shall have occurred and be
continuing, then the Mortgagee may, in every case and concurrently or
separately:
(a) Exercise any or all remedies available to Mortgagee under
the Loan Agreement, including without limitation acceleration of
payment of all Secured Obligations and termination of any obligation to
advance additional monies to Mortgagee;
(b) Exercise all the rights and remedies provided (i) under this
Mortgage, (ii) in foreclosure and otherwise given to mortgagees by the
provisions of the Ship Mortgage Act as amended and supplemented from
time to time, and (iii) to a secured party when a debtor is in default
under a security agreement by the Florida Uniform Commercial Code;
(c) Exercise any other right or remedy provided by law or
agreement, including without limitation the right to recover deficiency
or other judgment for any amount due under the Loan Agreement or
hereunder;
(d) Take and enter into possession of the Vessel, at any time,
wherever the same may be, without legal process and without being
responsible for loss or damage, and the Mortgagor or other person in
possession forthwith upon demand of the Mortgagee shall surrender to
the Mortgagee possession of the Vessel and the Mortgagee may, without
being responsible for loss or damage, hold, lay up, lease, charter,
operate or otherwise use the Vessel for such time and upon such terms
as it may deem to be for its best advantage, accounting only for the
net profits, if any, arising from such use of the Vessel and charging
upon all receipts from the use of the Vessel or from any sale thereof
or from the exercise of any of the powers conferred by subparagraph (e)
next following, all costs, expenses, charges, damages or losses by
reason of such use and with the right to dock the Vessel free of charge
at the Facilities (or elsewhere at Mortgagor's expense);
(e) Demand, collect, receive, compromise and ▇▇▇ for, so far as
may be permitted by law, in the name of the Mortgagor, all earnings,
revenues, income and profits of the Vessel, all amounts due from
insurers under any insurance thereon as payments of losses or as return
premiums or otherwise, all salvage awards and recoveries, all
recoveries in general average or otherwise, and all other sums due or
to become due in respect of the Vessel, or in respect of any insurance
thereon, from any person whomsoever, and to make, give and execute in
the name of the Mortgagor acquittances, receipts, releases or other
discharges for the same, and to endorse and accept in the name of the
Mortgagor all instruments in writing with respect to the foregoing, and
the Mortgagor does hereby irrevocably appoint the Mortgagee the true
and lawful attorneys-in-fact of the Mortgagor, upon the happening of an
Event of Default, to do all said acts; and
(f) Take and enter into possession of the Vessel at any time,
wherever the same may be, without legal process and, if it seems
desirable to the Mortgagee and without being responsible for loss or
damage, sell the Vessel upon such terms and conditions as the Mortgagee
may determine, free from any claim of or by the Mortgagor, at a public
sale or sales after advertisement or at a private sale or sales after
notice to the Mortgagor, at any place as the Mortgagee may specify and
in such commercially reasonable manner as the Mortgagee may deem
advisable.
In any suit to enforce its rights, powers or remedies, the Mortgagee
shall be entitled as a matter of right (i) to the appointment of a receiver or
receivers of the Vessel and the earnings thereof with full rights and powers to
use and operate the Vessel, and (ii) to a decree ordering and directing the sale
and disposition of the Vessel. The Mortgagee may become the purchaser at the
said sale, and the Mortgagee shall have the right to credit on the purchase
price any and all sums of money due to the Mortgagee hereunder.
Each and every right and remedy, herein given shall be cumulative and
in addition to every other remedy given hereunder or otherwise existing. The
exercise of any right or remedy shall not be construed to be a waiver of the
right to exercise at the same time or thereafter any
other right or remedy. No waiver, delay or omission by the Mortgagee in the
exercise of any right or remedy accruing upon any Event of Default shall impair
at such right or remedy or be construed to be a waiver of any such Event of
Default or to be any acquiescence therein.
3.03 Application of Moneys. The proceeds of any judicial or other
sale of the Vessel and the net earnings from any management, charter, lease,
operation or other use of the Vessel, under any of the powers specified in
Section 3.02, together with the proceeds of any insurance, claim for damages, or
judgment and any other moneys received from or for the account of the Mortgagor
pursuant hereto or otherwise shall be applied as follows:
First: To the payment of all expenses and charges including the
expenses of any sale, the expenses of any retaking, attorneys' fees hereunder,
court costs, and any other expenses or advances made or incurred by the
Mortgagee in the protection of its rights or the pursuit of its remedies
hereunder or caused by Mortgagor's default hereunder or under the Loan
Agreement, including advances made under Section 3.04 hereof, with interest at
the Default Rate and, if and to the extent so determined by the Mortgagee, to
the payment of, or to provide adequate indemnity against, liens claiming
priority over or equality with this Mortgage.
Second: To the payment of the Secured Obligations, including accrued
interest to the date of such payment, in any order that the Mortgagee may
determine.
Third: To the payment of any surplus thereafter remaining to the
Mortgagor or to whomsoever shall be entitled thereto, subject to set-off in
favor of Mortgagee for any other indebtedness of Mortgagor.
In the event that the proceeds are not sufficient to pay the amounts
specified in paragraphs "First" and "Second" above, the Mortgagee shall be
entitled to collect any deficiency from the Mortgagor or any other person
legally liable therefor.
3.04 Advances and Entry by Mortgagee. If the Mortgagor shall default
in the performance or observance of any of the covenants in this Mortgage, the
Mortgagee may, in its discretion, do any act or make any expenditures Mortgagee
deems necessary or appropriate to remedy such default or protect Mortgagee's
rights, including, without limitation of the foregoing, the obtaining of
insurance, the payment and discharge of taxes and liens, entry upon the Vessel
to make repairs (and for that purpose docking and maintaining the Vessel) and
defending suits. The Mortgagor shall reimburse the Mortgagee on demand, with
interest at the highest Default Rate provided for in the Notes for any and all
reasonable expenditures so made or incurred and for any and all damages or
losses sustained by Mortgagee because of Mortgagor's defaults. Until the
Mortgagor has so reimbursed the Mortgagee for such expenditures, advances and
expenses, the amount thereof shall be a debt due from the Mortgagor to the
Mortgagee, and payment thereof shall be secured by the lien of this Mortgage.
ARTICLE IV.
MISCELLANEOUS
4.01 Notices. All notices provided for herein shall be deemed to have
been given (unless otherwise required by the specific provision hereof in
respect of any matter) when delivered in the manner permitted in the Loan
Agreement.
4.02 Other Security. This Mortgage is given to secure the Secured
Obligations in addition to other security and/or guaranties that may now or
hereafter secure the Secured Obligations. The Mortgagee shall have no duty to
exercise its rights or remedies under either this Mortgage or any other security
or guaranty in any particular order, and the Mortgagor waives any right to
require any marshalling of assets.
4.03 Severability. Any provision of this Mortgage that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction only, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
4.04 Defined Terms. Capitalized terms that are not otherwise defined
in this Mortgage shall have the meanings as provided in the Loan Agreement.
4.05 Successors and Assigns. All the covenants, stipulations,
promises and agreements contained in this Mortgage shall bind and inure to the
benefit of the Mortgagor and the Mortgagee and their respective successors and
assigns; provided, however, that nothing in this Section shall be deemed to
permit any sale or transfer of the Vessel otherwise prohibited hereunder.
4.06 No Waiver. No provision of this Mortgage or any other document
and none of the actions or omissions to act by the Mortgagee contemplated
thereby shall be deemed to or shall constitute a waiver by the Mortgagee of the
preferred status of this Mortgage or of any of the benefits, privileges or
provisions given by the Ship Mortgage Act.
4.07 Governing Law. This Mortgage shall be construed in accordance
with the laws of the State of Illinois and the general maritime law; provide,
however, that the parties shall be entitled to all rights conferred by any
applicable federal statute, rule or regulation. Mortgagor hereby submits to the
personal jurisdiction of the federal and state courts located in the State of
Illinois in respect of all matters relating to this Mortgage.
4.08 Amount and Maturity Date of Mortgage. The total amount of this
Mortgage is $5,650,000 plus interest and performance of covenants, the discharge
amount is the same as the total amount and the maturity date of the Notes is the
same date as the date of this Mortgage.
IN WITNESS WHEREOF, the Mortgagor has caused this instrument to be
executed in its name by a duly authorized officer as of the date first written
above.
PRINCESA PARTNERS
By: CONAMI, INC.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its: President
By: CONCORDE CRUISES, INC..
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its: President