________________________________________________________________________________
SUPPLEMENT NUMBER 5
Dated as of March 31, 1993
to
FIRST PREFERRED FLEET MORTGAGE
Dated December 15, 1987
between
XXXXXX XXXXXX CORPORATION
and
CHEMICAL BANK
(as successor by merger to
MANUFACTURERS HANOVER TRUST COMPANY),
as Trustee
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Eight Coast Guard District, Eighth Coast Guard District
Port of New Orleans, La. port of New Orleans
April 13, 1993
Received for record on April 13, Certified to be a true copy
1993 at 11:00 AM of the original.
and recorded in Book No. PM-242,
Ins. 353
______________________________ ________________________________
Documentation Officer Documentation Officer
SUPPLEMENT NUMBER 5, dated as of March 31, 1993 (this "Supplement"), to
FIRST PREFERRED FLEET MORTGAGE made and dated December 15, 1987, between XXXXXX
XXXXXX CORPORATION, a Virginia corporation (the "Mortgagor"), and CHEMICAL BANK
(as successor by merger to MANUFACTURERS HANOVER TRUST COMPANY, Trustee, as
mortgagee (the "trustee").
W I T N E S S E T H:
WHEREAS:
The Mortgagor, as sole owner of the Vessels (as defined herein), has
heretofore executed and delivered to the Trustee a First Preferred Fleet
Mortgage dated December 15, 1987 (the "Original Mortgage"), pursuant to which
the Mortgagor mortgaged to the Trustee the vessels identified in Schedule I to
the Original Mortgage (the "Original Vessels") to secure the Obligations (as
defined in the Original Mortgage), the Original Mortgage having been recorded on
December 15, 1987, at 9:15 a.m. in the Office of the Officer in Charge, Marine
Inspection, United States Coast Guard, at the Port of New Orleans (the "Coast
Guard Office"), in Book PM-205, Instrument 250; and the Original Mortgage was
amended and supplemented by Supplement Number 1 dated November 22, 1988
("Supplement Number 1"), pursuant to which an additional vessel was subjected to
the lien of the Original Mortgage, as so amended and supplemented (said
additional vessel being herein called the "Supplement Number 1 Vessel"), said
Supplement Number 1 having been recorded on November 22, 1988, at 10:35 a.m. in
the Coast Guard Office, in Book PB-212, Instrument 37; and the Original Mortgage
was further amended and supplemented by Supplement Number 2 dated July 3, 1989
("Supplement Number 2"), pursuant to which certain mortgage covenants were
amended, said Supplement Number 2 having been recorded on July 17, 1989, at
12:40 p.m. in the Coast Guard Office, in Book PM-217, Instrument 96; and the
Original Mortgage was further amended and supplemented by Supplement Number 3
dated July 18, 1989 ("Supplement Number 3"), pursuant to which additional
vessels were subjected to the lien of the Original Mortgage, as so amended and
supplemented (said additional vessels being herein called the "Supplement Number
3 Vessels"), said Supplement Number 3 having been recorded on July 18, 1989, at
1:35 p.m. in the Coast Guard Office, in Book PM-217, Instrument 118; and the
Original Mortgage was further amended and supplemented by Supplement Number 4
dated December 21, 1990 ("Supplement Number 4"), pursuant to which, among other
things, additional vessels were subjected to, the lien of the Original Mortgage,
as so amended and supplemented (said vessels and the Original Vessels, the
Supplement Number 1 Vessel and the Supplement Number 3 Vessels, less any deleted
vessels, being the "Vessels," as set forth in Exhibit A hereto), said Supplement
Number 4 having been recorded on January 10, 1991, at 8:00 a.m. in the Coast
Guard Office, in Book PM-227, Instrument 12 (said mortgage, as heretofore
amended, the "Existing Mortgage", and as further supplemented hereby and has the
same may hereafter be amended or supplemented, being herein called the
"Mortgage");
Supplement Number 2 subordinated the lien of the Mortgage to the lien
of the United States of America, acting by and through the Secretary of Commerce
(the "First Mortgagee"), under a separate Preferred Ship Mortgage (individually,
a "First Mortgage," and collectively, the "First Mortgages") on each vessel
listed in Schedule II to the Mortgage (individually, a "NOAA
- 2 -
Vessel," and, collectively, the "NOAA Vessels"), but excluding all other vessels
subject to the Mortgage;
The Mortgagor is refinancing the NOAA Vessels listed in Schedule II to
the Existing Mortgage and desires to subordinate the Mortgage to the First
Mortgages on such NOAA Vessels, as amended as of the date hereof;
The execution and delivery of this instrument has been duly authorized
and all conditions and requirements necessary to make this instrument a legal,
valid and binding agreement, to effect the modifications of the Mortgage as
provided herein and to confirm, affirm, reaffirm, and continue the Mortgage as
supplemented and amended by this instrument, as a valid, binding, preferred
fleet mortgage to secure payment of the Obligations (subject to the limitation
of the liability of the Mortgagor set forth in the Guarantee [as defined in the
Mortgage] have been duly performed and complied with;
It was a condition of the agreement by the First Mortgagee to the
refinancing of the NOAA Vessels that the Trustee and the Mortgagor enter into
this Supplement to subordinate the lien of the Mortgage on the NOAA Vessels to
the lien of the respective First Mortgages, as amended;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt of which is hereby acknowledged, this Supplement
Witnesseth:
ARTICLE FIRST
The Existing Mortgage is hereby amended and supplemented as follows:
Section 1. All references in the Existing Mortgage to a "First
Mortgage" or to "First Mortgages" shall be deemed to be references to such
preferred ship mortgage or mortgages, as the case may be, on the NOAA Vessels in
favor of the First Mortgagee, as amended as of the date hereof.
Section 2. All references in the Existing Mortgage to "Senior
Indebtedness" shall be deemed to be references to certain obligations of the
Mortgagor to the First Mortgagee in connection with the guarantees (the "New
NOAA Guarantees") given, as of the date hereof, by the First Mortgagee to
certain purchasers of notes of the Mortgagor.
Section 3. All references in the Existing Mortgage to "NOAA Guarantees"
shall be deemed to be references to the New NOAA Guarantees.
- 3 -
ARTICLE SECOND
Section 1. Except as otherwise expressly provided herein, all of the
covenants and agreements on the part of the Mortgagor which are set forth, and
all the rights, privileges, powers and immunities of the Trustee which are
provided for, in the Existing Mortgage shall continue to be and shall remain in
full force and effect.
Section 2. For the purpose of the Mortgage and this Supplement, the
addresses of the parties hereto are, as of the date hereof, and Section 5.7 of
the Existing Mortgage is hereby amended accordingly:
Trustee: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telex: 420120
Answerback: CBCUI
Telefax: (000) 000-0000
Telephone Confirmation: (000) 000-0000
Mortgagor: Xxxxxx Xxxxxx Corporation
For Deliveries by Hand:
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
For Deliveries by Mail:
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxxxx 00000
Attention: President
With a Copy to:
Counsel
(as the same address)
Telex: 469-695
Answerback: ZAPHAY-CI
Telefax: (000) 000-0000
Telephone Confirmation: (000) 000-0000
- 4 -
Section 3. Except as expressly amended by this Supplement, the Existing
Mortgage is in all respects ratified and confirmed and all the terms, provisions
and conditions thereof shall be and remain in full force and effect.
Section 4. Any term used herein which is defined in the Existing
Mortgage or by reference therein to another instrument shall have the same
meaning defined in the Existing Mortgage or such other instrument.
Section 5. This instrument may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original.
Section 6. The Trustee expressly does not waive the preferred status of
the Mortgage, and any provision of this Supplement which would otherwise
constitute such a waiver shall to such extent be of no force and effect.
Section 7. THIS SUPPLEMENT, AND ALL OF THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, SHALL BE
GOVERNED BY THE FEDERAL MARITIME LAWS OF THE UNITED STATES OF AMERICA AND, ONLY
TO THE EXTENT NOT ADDRESSED THEREBY, BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
XXXXXX XXXXXX CORPORATION
By: _______________________________
Title:
CHEMICAL BANK, Trustee
By: _______________________________
Title:
ACKNOWLEDGMENT
DISTRICT OF COLUMBIA )
) ss:
CITY OF WASHINGTON )
I, the undersigned, a Notary Public in and for the jurisdiction
aforesaid, do hereby certify that Xxxx Xxxxxxxxxx, a Vice President of XXXXXX
XXXXXX CORPORATION, the corporation named as mortgagor in the foregoing
instrument, personally appeared before me in said jurisdiction, the aforesaid
officer, being personally well known to me as (or proved by the oath of credible
witnesses to be) the person who executed the foregoing instrument, and
acknowledged the same to be the act and deed of the said corporation, and that
he delivered the same as such.
Given under my hand and seal this 31st day of March, 1993.
_______________________________
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this 18 day of March, 1993, before me personally appeared Xxxxxxx X.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he/she
resides at 00X Xxxxxx Xxxx Xxxx, Xxxxxxxxx, XX, that he/she is a Vice President
of CHEMICAL BANK, the banking corporation described in and which executed the
foregoing instrument; and that he/she signed his/her name thereto by order of
the Board of Directors of said banking corporation.
______________________________
Notary Public
Exhibit A to
Supplement No. 5
SCHEDULE I
To
Preferred Fleet Mortgage
Page 1 of 4
VESSEL SUBJECT TO PREFERRED FLEET MORTGAGE
IN FAVOR OF MANUFACTURERS HANOVER TRUST COMPANY, AS TRUSTEE
Port of Documentation of all Vessels: New Orleans, Louisiana
Owner of all Vessels: Xxxxxx Xxxxxx Corporation
Approximate Approximate Location of Shipyard
Official Gross Net Year of at which Vessel
Name Number Tonnage Tonnage Construction Was Constructed
---- ------ ------- ------- ------------ ---------------
TIDELANDS 501955 572 304 0000 Xxxx Xxxxxx Xxxxxx, XX
XXXX XXXXXX 298971 520 353 0000 Xxxx Xxxxxx, Xxxxx
XXXXXXX X. XXXXXXX 298972 555 377 1965 Port Xxxxxx, Texas
XXXXXXXXX XXX 000000 537 366 1967 Xxxx Xxxxxx, Xxxxx
XXXXXXXXX XXX 000000 537 366 1967 Port Xxxxxx, Texas
TIGER POINT 508606 537 366 1967 Xxxx Xxxxxx, Xxxxx
XXXX XXXXXXXX 000000 530 367 1980 Mermentau, Louisiana
XXXXXXXXXX XXX 000000 537 366 1967 Port Xxxxxx, Texas
Page 3 of 4
Approximate Approximate Location of Shipyard
Official Gross Net Year of at which Vessel
Name Number Tonnage Tonnage Construction Was Constructed
---- ------ ------- ------- ------------ ---------------
XXXXX X. XXXXXX 513004 524 356 1968 Port Deposit, Maryland
RACCOON POINT 532143 538 366 1971 Xxxx Xxxxxx, Xxxxx
XXXXX XXXXXX 000000 538 366 1971 Port Xxxxxx, Texas
XXXX X. XXXXXXXX, XX. 547685 542 366 1944 Yonkers, New York
OYSTER BAYOU 531634 517 352 1971 Mermentau, Louisiana
TIGER SHOAL 538363 194 131 1972 Xxxx Xxxxxx, Xxxxx
XXXXX XXXX 000000 250 170 1972 Moss Point, MS
(EX. BENGAL SEAHORSE)
GULF SHORE 539469 188 128 1972 Moss Point, MS
(EX. TASMAN XXXXXXXX)
XXXXX 000000 269 183 1955 Port Xxxxxx, Texas
CHESAPEAKE BAY 541069 195 133 0000 Xxxx Xxxxxx, Xxxxx
XXXXXXXXX 000000 295 201 1955 Port Xxxxxx, Texas
FROSTY MORN 276926 648 344 1958 Jacksonville, Florida
XXXXXXXXXXX XXX 000000 533 370 1972 Mermentau, Louisiana
XXXXXXXXX XXX 000000 533 370 1972 Mermentau, Louisiana
