Exhibit 4.3
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MIDLAND ENTERPRISES INC.,
Owner
AND
ORGULF TRANSPORT CO.,
Charterer
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Charter Agreement
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Dated as of _______, 1998
CERTAIN MONEYS DUE AND TO BECOME DUE UNDER THIS
CHARTER AGREEMENT HAVE BEEN ASSIGNED TO THE CHASE
MANHATTAN BANK, AS TRUSTEE UNDER AN INDENTURE OF FIRST
PREFERRED SHIP MORTGAGE DATED AS OF _________, 1998.
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CHARTER AGREEMENT dated as of __________, 1998 (herein called the
"Charter") between MIDLAND ENTERPRISES INC., a corporation duly organized and
existing under and by virtue of the laws of the State of Delaware (hereinafter
called "Owner"), and ORGULF TRANSPORT CO., a corporation duly organized and
existing under and by virtue of the laws of the State of Delaware (hereinafter
called "Charterer"),
WITNESSETH:
WHEREAS, Charterer desires to charter the vessels described in Exhibit A
annexed hereto, all of which are hereinafter collectively called "Vessels" and
each of which is individually called "Vessel";
NOW, THEREFORE, in consideration of the premises and of the charter hire to
be paid and the covenants hereinafter mentioned to be kept and performed by
Charterer, Owner hereby lets and demises and Charterer hereby charters the
Vessels upon the following terms and conditions, namely:
1. Owner will make delivery hereunder of the Vessels to Charterer, all in
seaworthy condition, at such places as Owner and Charterer may agree upon on the
date of execution hereof unless delivery shall be delayed beyond such date
through causes beyond the control of Owner. Upon the delivery of each Vessel,
Charterer shall execute and deliver to Owner, in triplicate, a Delivery
Certificate in substantially the form annexed hereto as Exhibit B.
Notwithstanding the failure of Charterer to execute and deliver such a Delivery
Certificate, each Vessel, from and after the delivery thereof, shall for all
purposes be deemed to be in the possession of Charterer and subject to all of
the terms and conditions of this Charter.
2. The charter period for each Vessel chartered hereunder shall begin on
the date hereof. The charter period for all Vessels shall terminate on September
__, 2008.
3. Charterer shall, at its own expense and by its own procurement, man,
victual, navigate, operate, supply, fuel, maintain and repair each Vessel
subject to this Charter and shall pay all other charges and expenses of every
kind and nature whatsoever incident to the use and operation of the Vessels.
Charterer shall at its own expense provide such equipment, outfit, tools, spare
and replacement parts, etc., as may be required for the use and operation of the
Vessels.
4. The charter hire under this Charter shall be $ in each year, $ payable
by Charterer on or before March __ of each of the years 1999 through 2008, and $
payable by Charterer on or before September __ of each of the years 1999 through
2008 at the office of Owner, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx, or at such other
place or places as Owner shall hereinafter designate in writing to Charterer.
5. No payments to be made by Charterer under this Charter shall, as to
Owner or any assignee of Owner, be subject to any right of set-off, counterclaim
or defense and Charterer shall, as to the Owner or any such assignee, have no
right to terminate this Charter or be released, relieved or discharged from the
obligation or liability to make all payments due hereunder for any reason
whatsoever, including, without limitation, the following: any breach of any
representation or warranty of, or any act or omission of, Owner under this
Charter or any other agreement at any time existing between Owner and Charterer;
any claims as a result of any other business dealings by Owner or by Charterer;
any reorganization, arrangement, insolvency, readjustment of debt, bankruptcy,
dissolution or liquidation proceedings involving Owner, any change, alteration,
modification, extension, indulgence or other act or omission in respect of any
indebtedness or obligation of the Owner, or any sale, exchange, release or
surrender of, or other dealing in, any security for such indebtedness or
obligation, whether or not Charterer shall have any notice or knowledge thereof,
or otherwise.
6. Charterer agrees that during the continuance of this Charter, in
addition to paying the charter hire herein provided, Charterer will, when due
and payable from time to time, (a) pay and discharge all taxes, assessments and
other governmental charges levied or assessed upon the interest of Charterer in
the Vessels subject to this Charter or upon the use or operation thereof or on
the earnings arising therefrom, (b) pay all fines and penalties lawfully imposed
on any of the Vessels, (c) pay or reimburse Owner for all taxes, assessments and
other governmental charges levied or assessed against Owner on account of its
ownership of the Vessels or on account of the use or operation thereof or on
account of the earnings arising therefrom (exclusive, however, of any such taxes
on the income to Owner from the charter hire herein provided for) and (d) pay
all lawful claims (except those arising under the Indenture defined below) which
if unpaid might become a lien or charge upon the Vessels or any of them;
provided, however, that Charterer may contest the validity or amount of any such
tax, assessment, governmental charge, fine, penalty or claim if an adequate
reserve for the payment thereof is established and if the Owner's interests or
rights in or under this Charter shall in no way be prejudiced or impaired
thereby. Nothing contained in this Section shall permit any libel, attachment or
other seizure of any of the Vessels under process or color of legal authority to
remain undissolved or undischarged or to modify or alter in any respect
whatsoever the obligations of Charterer hereunder.
7. Charterer will not engage in any unlawful trade or violate any law or
carry any cargo that will expose the Vessels or any of them to penalty,
forfeiture or capture.
8. Charterer acknowledges that each of the Vessels chartered and to be
chartered hereunder is or will be mortgaged under an Indenture of First
Preferred Ship Mortgage to be dated as of ________, 1998 made by Owner to The
Chase Manhattan Bank, as Trustee (said Indenture of First Preferred Ship
Mortgage and any amendments or supplements thereto being herein called the
"Indenture" and The Chase Manhattan Bank, as Trustee, being hereinafter called
the "Trustee"). Charterer will carry or cause to be carried on board each
towboat and tugboat which may be chartered hereunder a true copy of this Charter
and a properly certified
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copy of the Indenture, and will cause the same to be exhibited, together with
the documents of such Vessel, to the extent required by Chapter 313 of Title 46
of the United States Code, as amended, (hereinafter called "Chapter 313"), to
any and all persons having business with each such Vessel which might give rise
to a lien thereon (other than liens for wages of the master and crew or salvage)
or to any sale, conveyance, mortgage or lease thereof.
Charterer will, in the case of each such towboat and tugboat, place and
keep prominently displaced in the Master's cabin and the wheelhouse thereof a
notice in durable form as follows:
"Notice of Preferred Mortgage
and Charter
This vessel is owned by Midland Enterprises Inc., is covered by an
Indenture of First Preferred Ship Mortgage to The Chase Manhattan Bank,
Trustee, under Chapter 313 of Title 46 of the United States Code, and is
under charter to ORGULF TRANSPORT CO. Under said mortgage and charter,
neither owner, charterer, master nor any other person has any right, power
or authority to create, incur or permit to be imposed upon this vessel, its
hire, freights, earnings, revenues, profits and income, any lien other than
for wages of the master and crew or salvage."
If a Vessel shall be released from the lien of the Indenture in accordance
with its terms, such Vessel shall, contemporaneously with such release and
without any further action by Owner and Charterer, be released from and no
longer subject to the provisions of this Charter.
9. (a) Neither Charterer, the Master of any of the Vessels, nor any other
person has or shall have any right, power or authority to create, incur or
permit to be placed or imposed or continued upon any of the Vessels, its hire,
freights, earnings, revenues, profits and income, any lien whatsoever other than
liens for wages of the master and crew and salvage, the lien of the Indenture,
and liens permitted by the terms and provisions of the Indenture.
(b) Charterer will not suffer or permit to continue any lien, encumbrance
or charge (other than the lien of the Indenture and liens permitted by the terms
and provisions thereof) on any of the Vessels, its hire, freights, earnings,
revenues, profits and income, and Charterer agrees to indemnify and save Owner
harmless against any claim, including, without limitation, fines and penalties
arising from violation of the laws of the United States of America or of any
State thereof and any claim or suit on account of any accident in connection
with the use or operation of any Vessel while subject to this Charter resulting
in damage to property or injury to any person, notwithstanding that Charterer
carries insurance in accordance with the provisions of this Charter. Charterer
will in due course and in any event within thirty (30) days after the same shall
become due and payable pay or cause to be discharged or make adequate provision
for the satisfaction or discharge of all claims or demands (except those arising
under the Indenture) which if unpaid might in equity, in admiralty or at law, or
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pursuant to any statute, constitute or create a lien, encumbrance or charge on
any of the Vessels or on its hire, freights, earnings, revenues, profits and
income, or will cause the Vessels and the hire, freights, earnings, revenues,
profits and income therefrom to be released and discharged from any lien,
encumbrance or charge therefor.
10. Charterer will, at its own expense, at all times maintain and preserve,
or cause to be maintained and preserved, each of the Vessels in good running
order and repair, ordinary wear and tear excepted, and will cause all equipment
and parts thereof which become worn out, broken or damaged to be repaired or
replaced. Commencing in the year 1999, Charterer will furnish to Owner in
triplicate on or before February __ of each year a certificate of an engineer or
other expert (who may be in the employ of Charterer) selected by Charterer and
satisfactory to Owner to the effect that Charterer, as of a date not more than
sixty (60) days preceding the date of such certificate, was not in default in
compliance with the covenants contained in this Section. Each of the Vessels
shall, and Charterer covenants that each of them will, at all times comply with
all applicable United States laws, treaties and conventions, and rules and
regulations issued thereunder, the violation of which would have a material
adverse effect on the operations or financial condition of the Charterer or on
the right, title or interest of Owner in and to the Vessels, and shall have on
board, when required thereby, valid certificates showing compliance therewith.
Nothing contained in this Section shall prevent Charterer from laying up any
Vessel which, in the opinion of the officer of Charterer in charge of
operations, it is advisable to lay up temporarily or indefinitely, but such
action shall not xxxxx or postpone the charter hire payable hereunder with
respect to any such Vessel. In addition to the foregoing certificates, Charterer
will furnish to Owner in triplicate such reports with respect to the use,
operation, maintenance and repair of the Vessels and other matters relating
thereto as Owner shall from time to time reasonably request.
All parts, equipment and appliances purchased by Charterer and installed
upon the Vessels and all replacements made upon the Vessels by Charterer shall
be considered accessories to the Vessels and title thereto shall be immediately
vested in Owner, without cost or expense to Owner.
11. Owner or the Trustee shall be entitled, at the expense of Charterer, to
inspect each of the Vessels and its cargo and marine documents, or to cause its
duly authorized representatives to inspect the same, at any reasonable time or
times upon written notice to Charterer. At the request of Owner, Charterer will
deliver for inspection copies of any and all contracts and documents relating to
any of the Vessels, whether on board such Vessel or not.
12. So long as any Vessel shall remain subject to the provisions of this
Charter:
(a) Charterer, at its own expense, will cause insurance to be carried
and maintained with respect to the Vessels with responsible underwriters,
insurance companies or funds selected by Owner against all such risks, with
such coverage, in such form, and in such amounts as, in the opinion of
marine insurance brokers selected by Owner, is customarily maintained with
respect to similar vessels by companies having similar operations. Each
policy shall provide for at least 15 days' prior written
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notice by such underwriters, insurance companies or funds, as the case may
be, to the Trustee in the event of termination thereof by reason of
nonpayment of premiums, commissions, assessments, club calls or advances
or in accordance with any expressed rights of cancellation they may have.
(b) Hull insurance and protection and indemnity insurance shall be
carried at least in such amount as shall be specified by Owner. Such
insurance shall be distributed among the Vessels in such manner as may from
time to time be specified by Owner and may provide for policy franchise or
deductible average (i) with respect to hull insurance as is customarily
maintained with respect to similar vessels by companies having similar
operations, not to exceed $1,000,000 with respect to all Vessels for loss
or damage arising from one occurrence and (ii) with respect to protection
and indemnity insurance as is customarily maintained with respect to
similar vessels by companies having similar operations.
(c) Charterer at its expense shall maintain coverage under the
standard Water Quality Insurance Syndicate, or comparable, policy form
providing statutory coverage under the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, and coverage under
the Oil Pollution Act of 1990 with a limit of at least five million dollars
($5,000,000) per occurrence.
(d) In no event shall employer's liability insurance be less than
$100,000 per person and $300,000 per accident nor workmen's compensation
insurance by less than may be required under all applicable Federal and
state laws.
(e) Charterer at its own expense shall keep each of the Vessels
insured against war risks under such form of policy as may be in general
use by underwriters of such insurance at the time (or under or through
contracts made with any government), if reasonably available, during any
voyage that any such Vessel may make in any waters where war-like
operations (other than peacetime military maneuvers or activities) are
being conducted.
(f) The policies, binders, covernotes or certificates evidencing
insurance maintained in compliance with this Section and receipts for
payment of the premiums thereon shall be delivered to Owner.
(g) Charterer shall furnish to Owner, from time to time upon request
and in any event on or before June 1 of each year, commencing with the year
1999, a certificate of marine insurance brokers selected by Owner which
shall include (i) a schedule of the insurance maintained by Charterer, (ii)
a statement that in the opinion of said brokers the insurance so maintained
is with acceptable underwriters, insurance companies or funds and is
against such risks, with such coverage, in such form, and in such amounts
as is customarily maintained with respect to similar vessels by companies
having
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similar operations, and (iii) a statement that there was no failure to
observe or comply with any of the covenants contained in subsections (a),
(b), (c), (d), (e) and (i) of this Section as of a date not more than
thirty (30) days preceding the date of such certificate.
(h) Charterer will not do or suffer or permit to be done any act
whereby any insurance is or may be impaired, suspended or defeated and will
not suffer or permit any of the Vessels to engage in any voyage or to carry
any cargo not permitted to be carried under the policies of insurance then
in effect without first covering the Vessel or Vessels for such voyage with
insurance in nature, amount and terms approved by marine insurance brokers
selected by the Owner.
(i) All insurance whatsoever carried with respect to the Vessels
(except workmen's compensation insurance and liability insurance other than
protection and indemnity insurance and collision liability insurance),
whether in compliance with the terms hereof or as additional protection for
the Charterer, by its terms shall be payable, and claims thereunder shall
be paid, to the extent permitted by applicable law, to the Owner or its
designee; provided, however, that, except during the continuance of an
Event of Default (as defined in Section 19 hereof) of which the Owner shall
have acquired knowledge and the underwriters shall have received written
notice, (1) in the case of any partial loss (except a loss covered either
by protection and indemnity insurance or by collision liability insurance)
for which the insurance carrier shall be required to pay an amount not
exceeding $250,000 in aggregate amount, the underwriters may pay directly
for repairs, salvage or other charges or, if the Charterer or any
subcharterer shall have furnished evidence that it has in fact paid for the
full repair of the damage or secured complete discharge of its liability
for salvage or other charges insured against, then the underwriters may
reimburse the Charterer and any such subcharterer therefor, as their
interests may appear; (2) in the case of any partial loss (except a loss
covered either by protection and indemnity insurance or by collision
liability insurance) for which the insurance carrier shall be required to
pay an amount exceeding $250,000 in aggregate amount, other than an actual,
constructive or agreed total loss, the Owner shall consent that the
underwriters may pay directly for repairs, salvage or other charges or, if
the Charterer or any subcharterer shall have furnished evidence that it has
in fact paid for the full repair of the damage or secured complete
discharge of its liability for salvage or other charges insured against,
shall consent that the underwriters reimburse the Charterer and any such
subcharterer therefor, as their interests may appear; and (3) in the case
of any loss covered by protection and indemnity insurance or by collision
liability insurance, the underwriters may pay directly to the Charterer or
any subcharterer to reimburse it for any loss, damage or expense incurred
and in fact paid by it or, if the Charterer or any sub-charterer shall not
have in fact paid such loss, damage or expense, then such claims may be
paid directly to the party to whom any such liability has been incurred.
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(j) In the event of the actual, constructive or agreed total loss of
any Vessel during the term of this Charter, Charterer's obligation to pay
hire shall continue as provided by Section 4 hereof, but Charterer shall
thereupon become entitled to insurance proceeds paid over to Owner by the
Trustee pursuant to the Indenture to the extent necessary to reimburse
Charterer for the payment of hire hereunder with respect to such Vessel,
computed in accordance with a schedule previously delivered to Charterer,
until such time as Owner shall replace such Vessel if Owner shall elect so
to do, but Owner shall have no further liability to Charterer with respect
to any such loss. Owner undertakes to do all things necessary and
appropriate to effectuate the collection of such insurance proceeds.
(k) If to the knowledge of Owner an Event of Default or an event
which, with the lapse of time or the giving of notice or both, would
constitute an Event of Default, has happened and is continuing, any and all
moneys received by Owner and/or its designee or designees on account of
insurance losses of every kind shall be held by such party and applied in
the same manner as if paid by the Charterer pursuant to Section 4 hereof;
provided, however, that Owner may, in its discretion, apply or consent that
the brokers or adjusters may apply the proceeds of insurance, except
payments as and for an actual, constructive or agreed total loss, to the
satisfaction and discharge of the liability or to the repair of the damage
in respect of which the insurance loss was paid.
(l) In the event that any Vessel shall be seized under process, Owner
is authorized, if Charterer shall in writing so request, to agree in
writing with any person, firm or corporation executing as surety a bond
releasing the Vessel from such process to hold for the benefit of such
surety any insurance moneys received by Owner as a result of the event upon
which such process was issued, as security for indemnification of such
surety against liability upon said bond.
13. Charterer will furnish Owner in triplicate within ninety (90) days
after the end of each fiscal year of Charterer a balance sheet and statements of
earnings, cash flows and stockholder's equity of Charterer for such fiscal year.
14. Charterer shall throughout the period of this Charter maintain the
documentation of the Vessels under the laws of the United States at Charterer's
expense. Charterer shall not permit the Vessels to be put, placed or operated
under a foreign flag or documentation and will not do or suffer or permit
anything to be done which can or might injuriously affect the registration or
enrollment of the Vessels under the laws or regulations of the United States.
Charterer is and shall remain throughout the period of this Charter a citizen of
the United States within the meaning of Section 2 of the Shipping Act, 1916, as
amended.
15. Owner may, without consent of Charterer, assign, mortgage under Chapter
313 or otherwise, transfer or convey all or any part of its interest in any one
or more of the Vessels or
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all or any of its rights under this Charter, but Charterer shall be under no
obligation to any assignee, mortgagee or transferee of Owner until written
notice thereof from Owner.
This Charter shall be always subject and subordinate to the Indenture. So
long as no Event of Default has occurred and is continuing, Charterer shall be
entitled to the possession and use of the Vessels in accordance with the terms
of this Charter.
Charterer shall have the right to enter into any bareboat or demise
subcharter of any Vessel for a term not to exceed five years. Any such
subcharter must, by its terms, be always subject and subordinate to the
Indenture and this Charter. In all cases Charterer's obligations to pay hire
with respect to all the Vessels shall continue as provided by Section 4 hereof.
16. All salvage shall be prorated 25% to Owner and 75% to Charterer after
deducting Owner's and Charterer's expenses and crew's proportion.
17. (a) In the event that title to any Vessel is requisitioned or seized by
any governmental authority during the term of this Charter, Charterer's
obligation to pay hire with respect to the Vessels shall continue as provided by
Section 4 hereof. So long as no Event of Default has occurred and is continuing,
Charterer shall be entitled to any award by way of just compensation or
otherwise for such requisition or seizure received by Owner from any
requisitioning or seizing authority to the extent necessary to reimburse it for
the payment of hire above-mentioned until such time as Owner shall replace such
Vessel if Owner shall elect so to do, but Owner shall have no further liability
to Charterer with respect to any such requisition or seizure of title. Owner
undertakes to do all things necessary and appropriate to effectuate the
collection of such just compensation from such requisitioning or seizing
authority.
(b) In the event that the use of any Vessel is requisitioned or seized by
any governmental authority during the term of this Charter, Charterer's
obligation to pay hire with respect to the Vessels shall continue as provided in
Section 4 hereof. So long as no Event of Default has occurred and is continuing,
Charterer shall be entitled to any amounts paid to Owner or to Charterer by such
governmental authority on account of such requisition or seizure of use and
Owner agrees that in such event such amounts shall be paid to Charterer
immediately upon receipt by Owner of any such payment from any governmental
authority.
18. It is agreed that Owner may avail itself of the rights created by the
provisions of 46 U.S.C. xx.xx. 181 through 186, inclusive, in any and all
circumstances whatsoever. Owner shall have a lien upon all cargoes and all
subfreights for any amounts due under this Charter to the extent of Charterer's
lien thereon, if any.
19. If, during the continuance of this Charter, one or more of the
following events (herein sometimes called "Events of Default") shall occur:
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A. Charterer shall fail to pay any installment of charter hire
pursuant to Section 4 hereof and such failure shall continue for a period
of five days after the last day on which the same shall have been due and
payable pursuant to said Section 4;
B. Charterer shall fail to observe or perform any covenant, condition
or agreement contained in Section 12 or 14 hereof on its part to be
performed and such failure shall continue for ten (10) days after written
notice thereof from Owner to Charterer specifying the failure and demanding
the same be remedied;
C. Charterer shall fail to observe or perform any other covenant,
condition or agreement contained herein on its part to be performed and
such failure shall continue for thirty (30) days after written notice
thereof from Owner to Charterer specifying the failure and demanding the
same be remedied;
D. A decree or order of a court having jurisdiction in the premises
shall have been entered adjudging Charterer a bankrupt, or insolvent, or
approving a petition seeking reorganization, arrangement, readjustment of
its debts or for other relief under any bankruptcy or similar law, Federal
or state, or appointing a trustee or receiver of Charterer or of a
substantial part of its property, and such decree or order shall have
remained in effect undischarged and unstayed for thirty (30) days; or
E. Charterer shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the appointment of a trustee or receiver of
Charterer or of a substantial part of its property, or shall file a
petition seeking reorganization, arrangement, readjustment of its debts or
for other relief under any bankruptcy or similar law, Federal or state, or
shall file an answer admitting the material allegations of such a petition,
or shall file a petition to take advantage of any debtor's act, or shall
make an assignment for the benefit of creditors, or be unable, or admit in
writing its inability, to pay its debts as they mature, or shall take any
corporate action in furtherance of any of the aforesaid purposes;
then, in any such case, Owner, at is option, may
(a) proceed by appropriate court action or actions, either at law, in
equity or in admiralty, to enforce performance by Charterer of the
applicable covenants of this Charter or to recover damages for the breach
thereof; or
(b) by notice in writing to Charterer terminate this Charter,
whereupon all rights of Charterer to or in the use of the Vessels shall
absolutely cease and determine, but Charterer shall remain liable as
hereinafter provided; and thereupon Owner may by its agents retake the
Vessels wherever found, whether under way or in any port, harbor or other
place, without prior demand and without legal process, and for that purpose
may enter upon any dock, pier or other premises where the Vessels may be
and take
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possession of any one or more of the Vessels and thenceforth hold, possess
and enjoy the same free from any right of Charterer, or its successors or
assigns, to use the Vessels for any purposes whatsoever; but Owner shall,
notwithstanding such retaking of the Vessels, have a right to recover from
Charterer any and all amounts which under the terms of this Charter may be
then due or which may have accrued to the date of such termination and also
to recover forthwith from Charterer (i) as damages for loss of the bargain,
and not as a penalty, a sum, with respect to each Vessel subject to this
Charter immediately prior to the termination hereof, which represents the
excess, if any, of the then present worth, at the time of such termination,
of the aggregate charter hire for such Vessel which would otherwise have
accrued hereunder from the date of such termination to the end of the
period of this Charter, over the then present worth of the fair charter
hire value of such Vessel for such period of time, such present worth to be
computed in each case on the basis of a 6% per annum discount, compounded
monthly from the respective dates upon which charter hire would have been
payable hereunder had this Charter not been terminated, and (ii) any
damages in addition thereto which Owner shall have sustained by reason of
the breach of any covenant or covenants of this Charter other than for the
payment of charter hire.
The remedies in this Charter provided in favor of Owner shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other
remedies in its favor existing at law or in equity or in admiralty. Charterer
hereby waives any mandatory requirements of law, now or hereafter in effect,
which might limit or modify any of the remedies herein provided, to the extent
that such waiver is permitted by law.
20. Within ninety (90) days prior to the redelivery of any Vessel upon the
termination of this Charter, such Vessel shall be drydocked and a joint survey
shall be made by Charterer and Owner to determine the condition and fitness of
said Vessel and her machinery and equipment. The cost of such drydocking and
survey shall be paid by Charterer. All repairs required as shown by such survey
to be necessary to restore the Vessel to the condition of seaworthiness as when
delivered hereunder, except for ordinary wear and tear, and all repairs of
damage occurring after such survey shall be made by Charterer at Charterer's
expense and on Charterer's time prior to redelivery. If the Vessel shall sustain
damage below the water line after such survey, the Charterer shall, if requested
by the Owner, re-drydock the Vessel for a joint survey of such damage, the
Charterer to pay the cost of such re-drydocking and survey.
21. Upon the expiration of the period for the charter of each Vessel
hereunder, Charterer shall forthwith redeliver possession of such Vessel to
Owner at a terminal mutually agreed upon between the parties at the time of
redelivery.
22. This Charter shall be governed by and construed in accordance with the
maritime laws of the United States and, to the extent applicable, the law of the
State of New York. Any dispute in respect of this Charter or the performance
hereof shall be referred to three arbitrators at Cincinnati, Ohio, one to be
appointed by Owner, one by Charterer and the third by the two so chosen. If the
two arbitrators appointed by the parties
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fail to agree on the third within twenty (20) days after the designation of the
first arbitrator, the third shall be chosen as follows: The party initiating the
arbitration shall request the American Arbitration Association to prepare a list
of five admiralty lawyers qualified and available to act as arbitrator, and a
copy of such list shall be submitted to each party. Within seven days after
receipt of such list each party shall have the right to strike two names
therefrom and return the list to the Association. Failure to return the list
within eight days after its receipt shall be deemed to be an acceptance of the
entire list. The Association shall choose the third arbitrator from the names
not stricken from the list by the parties. A written statement of the issues to
be arbitrated shall be signed by the parties and submitted to the arbitrators
before any evidence is offered or, if the parties fail to agree upon such
statement, the arbitrators shall, after discussion with the parties, define in
writing the issues in controversy before hearing evidence on the merits. Unless
otherwise agreed by the parties, any such arbitration shall take place in
Cincinnati, Ohio under the Rules of the American Arbitration Association then in
effect. The arbitrators shall not have power to add to or subtract from or
otherwise change the provisions of this Charter. They, or any two of them
actually participating in the arbitration proceedings, shall render their award
in writing, sending a signed copy to each party. Such award shall be final, and
may if necessary be made a rule of court, and a judgment, decree or order may be
entered thereon in any court of competent jurisdiction.
23. Any notice required or permitted to be given by either party to the
other party shall be deemed to have been given when deposited in the United
States of America mails, registered or certified, postage prepaid, addressed as
follows:
If to Owner: Midland Enterprises Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Copy to: Eastern Enterprises
0 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to Charterer: Orgulf Transport Co.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
If to the Trustee: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Copy to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
or addressed to either party at such other address or addresses as such party
shall hereafter furnish to the other party in writing.
24. Charterer may, without the consent of the Owner or the Trustee, assign
all of its interests, rights and obligations under this Charter to a Barge Line
Subsidiary (as defined in the Indenture) of the Owner upon written notice to the
Owner and the Trustee of such assignment, which notice shall include a copy of
the agreement under which the assignee assumes all of the Charterer's
obligations hereunder.
25. This Charter shall be executed in three counterparts for the parties
and each such counterpart shall for all purposes be deemed to be an original.
Two of said counterparts shall be endorsed "This is one of Owner's two original
copies" and shall be delivered to the Owner, and the remaining one counterpart
shall be endorsed "This is Charterer's original copy" and
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shall be delivered to Charterer. Under no circumstances shall there be executed,
at any time, any copies hereof in addition to such three counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Charter to be duly
executed as of the day and year first above written.
MIDLAND ENTERPRISES INC., Owner
By_____________________________
ORGULF TRANSPORT CO., Charterer
By_____________________________
CERTAIN MONEYS DUE AND TO BECOME DUE UNDER THIS CHARTER
AGREEMENT HAVE BEEN ASSIGNED TO THE CHASE MANHATTAN BANK, AS
TRUSTEE UNDER AN INDENTURE OF FIRST PREFERRED SHIP MORTGAGE
DATED AS OF _____________, 1998.
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State of )
ss:
County of )
On this day of , 1998, before me personally appeared, to me personally
known, who being by me duly sworn, says that he is the of MIDLAND ENTERPRISES
INC., that said instrument was signed on behalf of said corporation by authority
of its Board of Directors, and he acknowledged that the execution of the
foregoing instrument was the free act and deed of said corporation.
______________________________
Notary Public
My Commission Expires:______________
------------------------------------
State of )
ss:
County of )
On this day of , 1998, before me personally appeared ,
to me personally known, who being by me duly sworn, says that he is the
of ORGULF TRANSPORT CO., that said instrument was signed on behalf of said
corporation by authority of its Board of Directors, and he acknowledged that the
execution of the foregoing instrument was the free act and deed of said
corporation.
______________________________
Notary Public
My Commission Expires:______________
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EXHIBIT A
Vessels Subject to this Charter
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EXHIBIT B
Delivery Certificate
Pursuant to Charter Agreement
Dated as of _________, 1998 between
MIDLAND ENTERPRISES INC., OWNER
and
ORGULF TRANSPORT CO., CHARTERER
The undersigned, Charterer under the above-described Charter Agreement,
acknowledges delivery of the following described vessel(s), on the date hereof,
and agrees that the same is/are in its possession subject and pursuant to all of
the terms, covenants and conditions of said agreement, to wit:
ORGULF TRANSPORT CO.
By___________________________
Dated:
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