EXHIBIT 10.5(d)
FIRST PREFERRED FLEET MORTGAGE
(UNITED STATES)
This FIRST PREFERRED FLEET MORTGAGE (hereinafter called the "Mortgage"),
was executed on December 10, 1997 to be effective on December 12, 1997 by XXXXX
TOWING CORPORATION, a New York corporation having its principal place of
business at Two Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (hereinafter
called the "Owner") in favor of BANCBOSTON LEASING INC., a Massachusetts
corporation with an office at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 (hereinafter
called the "Mortgagee").
W H E R E A S
WHEREAS, the Owner is the sole owner of the whole of the vessel the Xxxxx
Xxxxx, Official No. 644241 (f/k/a the "April") (referred to herein, together
with any additional vessels which may from time to time become subject to this
Mortgage, individually as a "Vessel" and collectively as the "Vessels");
WHEREAS, pursuant to an Amended and Restated Term Loan Agreement, dated as
of December 12, 1997, (the "Loan Agreement") between the Owner and the
Mortgagee, (i) the Owner has assumed the obligations of Interlake
Transportation, Inc., a Delaware corporation ("Interlake") in respect of the
outstanding portion of the principal amount of Three Million Five Hundred
Thousand Dollars ($3,500,000) term loan (as amended and restated, the "Term
Loan") made by the Mortgagee to Interlake, pursuant to that certain Construction
and Term Loan Agreement, dated as of May 16, 1997 (as amended from time to time
the "Existing Loan Agreement"), by and among Interlake, Interlake Holding
Company, as Guarantor, The Interlake Steamship Company, as Guarantor,
BankBoston, N.A., as Construction Lender, the Mortgagee, and BancBoston Leasing
Inc., as agent for the Lenders referred to in the Existing Loan Agreement and
(ii) the Owner and the Mortgagee have agreed to amend and restate the provisions
of the Existing Loan Agreement relating to the outstanding portion of the Term
Loan;
WHEREAS, the Term Loan is evidenced by an amended and restated promissory
note of the Owner in substantially the form attached hereto and incorporated by
reference herein as EXHIBIT A (the "Note"), with the same force and effect as if
fully set forth herein, due and payable in the amounts and upon the terms and
conditions therein recited or referenced, to the order of the payee therein
named, with interest as set forth in or by reference in said Note;
WHEREAS, the Owner, in order to secure the payment of the Obligations
(including all principal of and interest on the Term Loan and any related costs
and expenses), and such additional sums as the Owner may be obligated to pay
under the covenants, terms and conditions in this Mortgage contained, and in
order to secure the performance and observance of and compliance with
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all agreements, covenants, terms and conditions in this Mortgage contained, has
duly authorized the execution and delivery of this Mortgage under and pursuant
to Title 00 Xxxxxx Xxxxxx Code Section 31301 ET SEQ in favor of the Mortgagee;
WHEREAS, capitalized terms which are used herein without definition and
which are defined in the Loan Agreement shall have the same meanings herein as
in the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and of the sums loaned as
above recited, and of other good and valuable consideration, the receipt and
adequacy whereof is hereby acknowledged, the Owner, in order to secure the
payment and performance of the Obligations and such additional sums as the Owner
may be obligated to pay under the agreements, covenants, terms and conditions in
this Mortgage contained, and in order to secure the performance and observance
of and compliance with all the agreements, covenants, terms and conditions in
the Loan Agreement, the Note and in this Mortgage contained, the Owner has
granted, conveyed, mortgaged, pledged, set over and confirmed and does by these
presents grant, convey, mortgage, pledge, set over and confirm unto the
Mortgagee, its successors and assigns, all of the following described property:
The whole of those certain vessels listed and described on SCHEDULE 1
attached hereto.
together with their engines, boilers, machinery, masts, boats, anchors, cables,
chains, rigging, tackle, apparel, furniture, equipment, spare parts and gear and
all other appurtenances thereunto appertaining or belonging, whether now owned
or hereafter acquired, whether on board or not, and any and all additions,
improvements and replacements hereafter made in, on or to said vessels, or any
part thereof, or in or to the equipment and appurtenances aforesaid, all the
foregoing being hereinafter referred to as the "Vessels".
TO HAVE AND TO HOLD all and singular the above mortgaged and described
property unto the Mortgagee, and its successors and assigns, forever; upon the
terms herein set forth for the enforcement of the payment of the Obligations in
accordance with the terms of the Loan Agreement and the Note and to secure the
performance and observance of, and compliance with, all agreements, covenants,
terms and conditions in this Mortgage contained;
PROVIDED ONLY, and the condition of these presents is such, that if the
Owner, or its successors or assigns, shall fully discharge the Obligations
including, without limitation, the irrevocable payment in full in cash of all of
the indebtedness evidenced by the Note and all interest, expenses and fees
thereon, and all other such sums as may hereafter become secured by this
Mortgage and shall perform, observe and comply with all agreements, covenants,
terms and conditions in this Mortgage, expressed or implied, to be performed,
observed or complied with by and on the part of the Owner, then these presents
and the rights hereunder shall cease, determine and be void, and otherwise shall
be and remain in full force and effect.
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IT IS HEREBY COVENANTED, DECLARED AND AGREED that the Vessels are to be
held subject to the further covenants, conditions, provisions, terms and uses
hereinafter set forth:
ARTICLE I
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE OWNER
The Owner represents to, and covenants and agrees with, the Mortgagee as
follows:
Section 1.1. PERFORMANCE. The Owner will observe, perform and comply
with all the covenants, terms and conditions herein and in the Loan Agreement
and the Note, expressed or implied, on its part to be observed, performed or
complied with and will pay the Obligations including, without limitation, its
indebtedness as set forth in the Note and interest thereon in accordance with
the terms thereof.
Section 1.2. CORPORATE AUTHORIZATION; CITIZENSHIP. The Owner was duly
organized and is now validly existing as a corporation under the laws of the
State of New York with a principal place of business at Xxx Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000. The Owner is now, and shall so remain during the
life of this Mortgage, a citizen of the United States as defined in Section 2 of
the Shipping Act of 1916, as amended, entitled to own and operate the Vessels
under their respective Certificates of Documentation, which the Owner shall
maintain in full force and effect, and is duly qualified to engage in the
coastwise trade. The Owner is duly authorized to mortgage the Vessels; all
corporate action of the Owner necessary for the execution and delivery of the
Note, the Loan Agreement and this Mortgage has been duly and effectively taken;
and the Note and the Loan Agreement secured hereby and this Mortgage in the
hands of the holder thereof are the valid and enforceable obligations of the
Owner in accordance with their terms.
Section 1.3. TITLE. The Owner lawfully owns and is lawfully possessed of
each of the Vessels, free from any lien, encumbrance, security interest or
charge of any kind (except the lien of this Mortgage and other liens permitted
by the Loan Agreement (any such lien, a "Permitted Lien")), and the Owner
warrants, and will defend the title and possession thereto and to every part
thereof for the benefit of the Mortgagee against the claims and demands of all
persons whosoever. Each of the Vessels is tight, staunch and strong and well
and sufficiently tackled, appareled, furnished and equipped and in all respects
seaworthy, as far as due diligence can make it so.
Section 1.4. FIRST PREFERRED MORTGAGE. The Owner will, at its expense
and at no cost to the Mortgagee, comply with and satisfy all the provisions of
Title 46 United States Code Section 31301 ET SEQ. in order to establish, record
and maintain this Mortgage as a first preferred fleet mortgage thereunder upon
each of the Vessels and will do all such other acts and execute all such
instruments, deeds, conveyances, mortgages and assurances as the Mortgagee shall
reasonably require in order to subject all Vessels to the lien of this Mortgage
as aforesaid.
Section 1.5. OPERATION. The Owner will at all times operate each Vessel
in compliance, in all
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material respects, with all governmental rules, regulations and requirements,
applicable to such Vessels (including without limitation, all requirements of
the Shipping Act of 1916, as amended) and to the extent such Vessels are
classified in compliance in all material respects with all rules, regulations
and requirements of the applicable classification society. The Owner will
neither cause nor permit any Vessel to be operated in any manner contrary, in
any material respect, to the applicable law or to carry any cargo that will
expose any Vessel to penalty, forfeiture or capture and will not do or suffer or
permit anything to be done which can or might adversely affect the documentation
of any Vessel under the laws and regulations of the United States of America and
will at all times keep each of the Vessels duly documented thereunder.
Section 1.6. GOVERNMENT ASSESSMENTS. The Owner will pay and discharge or
cause to be paid and discharged, when due and payable from time to time, all
taxes, assessments, governmental charges, fines and penalties imposed on all or
any one of the Vessels or any income therefrom and all lawful claims which if
unpaid might become a lien or charge upon all or any one of the Vessels, except
that it shall be entitled to contest any such taxes, assessments, governmental
charges, fines and penalties in good faith, provided it obtains a bond, or an
insurance underwriter's letter of undertaking or sets aside on its books
adequate reserves with respect thereto.
Section 1.7. PERMITTED LIENS. Neither the Owner, the Master of any
Vessel, any charterer nor any other person has or shall have any right, power or
authority to suffer to continue, create, incur or permit to be placed or imposed
upon any Vessel, its freights, profits or hire, any liens, encumbrance, security
interest or charge whatsoever other than Permitted Liens.
Section 1.8. NOTICE OF MORTGAGE. The Owner will carry or cause to be
carried a properly certified copy of this Mortgage on board each Vessel with
such Vessel's documents and will cause such certified copy and the documents of
each Vessel to be exhibited to any and all persons having business with such
Vessel which might give rise to a maritime lien thereon or to any sale,
conveyance, mortgage or lease thereof, and to any representative of the
Mortgagee; and will cause to be placed and kept prominently displayed in the
chart room and in the Master's cabin of each Vessel a notice, framed under
glass, printed in plain type of such size that the paragraph of reading matter
shall cover a space not less than six inches wide and nine inches high, reading
as follows:
NOTICE OF FIRST PREFERRED FLEET MORTGAGE
This Vessel is owned by Xxxxx Towing Corporation and is subject to a First
Preferred Fleet Mortgage in favor of BancBoston Leasing Inc., as agent for
itself and certain other lenders, as mortgagee, under authority of Title 00
Xxxxxx Xxxxxx Xxxx Xxxxxxx 00000 ET SEQ. Under the terms of said Mortgage
neither the owner of this Vessel, nor any one on the owner's behalf, nor, any
charterer, the Master, nor any other person has any right, power or authority to
create, incur or permit to be placed or imposed upon this Vessel, its freights,
profits or hire, any lien whatsoever, other than the lien of said Mortgage, and
other Permitted Liens under said Mortgage, and liens for wages of crew or the
Master of this Vessel arising from the current voyage, for wages of stevedores
when employed directly by the Vessel, or for general average or salvage, repairs
and towage.
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Section 1.9. REMOVAL OF LIENS. If a notice of claim of lien be recorded
against any one or all of the Vessels, or a libel be filed against any one or
all of the Vessels and any one or more of the Vessels be attached, levied upon
or taken into custody as a result thereof, or if any one or more of the Vessels
be otherwise attached, levied upon or taken into custody by virtue of any
proceedings in any court or tribunal, the Owner will promptly notify the
Mortgagee thereof by telecopy or telex, confirmed by letter; and within fifteen
(15) days of such recording, filing, attachment, levy, or taking, will cause a
certificate of discharge to be recorded in the case of any such recording of
notice of claim or will cause such Vessels to be released in the case of any
such attachment, levy or other taking into custody and will cause all liens
thereon relating to such recording, libel, attachment, levy or other taking into
custody to be discharged and will promptly notify the Mortgagee thereof.
Section 1.10. MAINTENANCE OF VESSELS. The Owner will at all times and
without cost and expense to the Mortgagee maintain and preserve or cause to be
maintained and preserved the Vessels in good running order and repair, and will
cause all equipment and parts thereof which become worn out, broken or damaged
to be repaired or replaced and will keep the Vessels, or cause them to be kept,
in such condition as will entitle each Vessel which is classed by the American
Bureau of Shipping (or other classification society) to the highest
classification and rating for vessels of the same age and type in American
Bureau of Shipping (or other classification society of like standing
satisfactory to the Mortgagee) in class without recommendation, and annually
will furnish to the Mortgagee a certificate or certificates of such society that
such classification is maintained, or, as to Vessels which are not so classed,
to be covered by a valid Coast Guard Certificate of Inspection. Notwithstanding
the preceding sentence, if at any time any Vessel shall fail to meet such
standard, the Owner shall not be in breach of this Section 1.10 provided such
failure is cured within the earlier of (i) thirty days and (ii) the time
prescribed by the American Bureau of Shipping for curing such condition. Each
Vessel shall, and the Owner covenants that it will, at all times comply, in all
material respects, with all applicable United States law, treaties and
conventions, and rules and regulations issued thereunder, and shall have on
board, when required thereby, valid certificates showing compliance therewith.
The Owner will not make, or permit to be made, any substantial change in the
structure, type or speed of any of the Vessels or change in any of the Vessels'
rig without first receiving the written approval thereof by the Mortgagee, not
to be unreasonably withheld or delayed if no Default or Event of Default shall
then exist.
Section 1.11. ACCESS. The Owner will at all reasonable times, upon
reasonable prior notice if no Default or Event of Default then exists, afford
the Mortgagee or its authorized representatives full and complete access to each
of the Vessels where located for the purpose of inspecting the same and their
cargoes and papers and, at the request of the Mortgagee, will deliver for
inspection copies of any and all contracts and documents relating to the
Vessels, whether on board or not.
Section 1.12. SALE OR OTHER DISPOSITION OF THE VESSELS. (a) The Owner
will not sell (other than sales permitted under the Loan Agreement), mortgage,
transfer or demise charter any one or all of the Vessels without the written
consent of the Mortgagee first had and obtained, which consent in the case of a
demise charter shall not be unreasonably withheld or delayed, and any such
written
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consent to any one sale, mortgage, transfer or demise charter shall not be
construed to be a waiver of this provision with respect to any subsequent
proposed sale, mortgage, transfer or demise charter.
(b) The Owner will not charter any Vessel to, or permit any Vessel to
serve under any contract of affreightment with, a person included within the
definition of "designated foreign country" or a "national" of a "designated
foreign country" in the "Foreign Assets Control Regulations" or "Cuban Assets
Control Regulations" of the United States Treasury Department, 31 C.F.R. Chapter
V, as amended, within the meaning of said regulations or of any regulation,
interpretation or ruling issued thereunder.
(c) The Owner shall not enter into (i) any charter with any entity in
excess of one year (inclusive of all extension and renewal option periods and
other than such charters terminable at will by the parties thereto) or (ii) any
demise or bareboat charter with any entity in excess of ninety days, without in
each case providing Mortgagee a copy thereof. The Owner undertakes and
covenants that any charter of any of the Vessels shall contain a provision
prohibiting the charterer and any other persons from incurring or acquiring any
lien on any Vessel.
Section 1.13. INSURANCE. At all times while and so long as this Mortgage
shall be outstanding:
(a) The Owner will, at its own expense insure each of the Vessels and keep
the same insured (in lawful money of the United States) for hull and machinery,
pollution liability, and against protection and indemnity risks, generally
insured against by prudent companies engaged in the same or similar business, in
such form, and with such financially sound and reputable insurance companies,
underwriters, funds, mutual insurance associations or clubs, acceptable to the
Mortgagee, as shall be declared from time to time by a firm of independent
marine insurance brokers acceptable to the Mortgagee, to be reasonably necessary
or advisable for the protection of the Mortgagee and in accordance with the
provisions of this Section 1.13.
(b) The Owner will furnish to the Mortgagee, concurrently with the
execution hereof and thereafter at intervals of not more than twelve (12)
calendar months, a detailed report of the terms and conditions of the
insurances, including the amount and scope of coverage, deductibles, identity of
underwriters and share of placement by each underwriter, signed by a firm of
independent marine insurance brokers, appointed by the Owner and acceptable to
the Mortgagee, with respect to the insurance carried and maintained on the
Vessels together with their opinion that the insurance coverages in place and
the amount thereof are prudent and reasonable taking into account existing
industry practices, the operating area and trade of the Vessels and the risks
associated with such operations, and that such insurance is in compliance with
the provisions of this Section 1.13. The Owner will cause such firm to agree to
advise the Mortgagee promptly of any lapse of any such insurance by expiration,
failure to renew or otherwise and of any default in payment of any premium,
whether for new insurance or for insurance replacing, renewing or extending
existing insurance, and of any other act or omission on the part of the Owner of
which it has knowledge and which might, in its opinion, invalidate or render
unenforceable, or cause the lapse of or prevent the renewal or extension of, in
whole or in part, any insurance on the Vessels. The Owner will furnish or cause
to be
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furnished to the Mortgagee, from time to time, upon request, detailed
information with respect to any insurance carried or maintained on the Vessels
or required or approved by the Mortgagee to be carried or maintained thereon.
The Owner will also cause such firm to agree to xxxx its records and to use its
best efforts to advise the Mortgagee, at least thirty (30) days prior to the
expiration date of any insurance carried pursuant to this Mortgage, that such
insurance has been renewed or replaced with new insurance which complies with
the provisions of this Section 1.13 and such advice shall be in the same detail
in respect to such renewed or replacement insurance as is required in respect of
insurance described in the aforesaid reports.
(c) Until otherwise required by the Mortgagee, the protection and
indemnity and hull and machinery insurance required by this Section 1.13 may be
on the American Institute forms current at the time such insurance takes effect
with deductibles or franchises no higher than the amounts set forth on SCHEDULE
2 hereto. Protection and indemnity insurance in respect to each Vessel shall be
by unlimited entry in a mutual insurance association or placed with underwriters
acceptable to the Mortgagee and shall include pollution liabilities (including
coverage for third party claims, statutory and governmental cleanup liabilities,
penalties and fines in the minimum amount for any one occurrence set forth on
SCHEDULE 2 hereto) with deductibles or franchises no higher than the respective
amounts set forth on SCHEDULE 2 hereto. For the purposes of insurance against
total loss, each Vessel shall be insured for and valued at an amount at least
equal to the greater of: (i) the full commercial value of such Vessel, or (ii)
the amount set forth opposite such Vessel's name on SCHEDULE 2 hereto. For
purposes of the broker's reports and opinions referred to above, the broker
giving the same may rely on a statement as to the full commercial value of each
of the Vessels and the gross tonnage of each of the Vessels as furnished
annually by the Owner to such broker and the Mortgagee at the time insurance is
negotiated with underwriters.
(d) All insurance shall be taken out in the names of the Owner and the
Mortgagee as their respective interests may appear; the policies or certificates
shall provide that there shall be no recourse against the Mortgagee for payment
of premiums; all insurance shall provide for at least thirty (30) days' prior
notice to be given to the Mortgagee by the underwriters in event of cancellation
or any material change in coverage.
(e) All insurance policies or certificates shall provide that losses
thereunder shall be payable to the Mortgagee, and all insurance moneys received
by the Mortgagee shall be distributed as provided below in this Section 1.13.
However, the policies or certificates may provide that (and it is agreed that):
(i) any loss under any insurance on the Vessels with respect to
protection and indemnity or collision liability risks may be paid directly to
the person to whom any liability covered by such insurance has been incurred, or
to the Owner to reimburse it for any loss, damage or expense incurred by it and
covered by such insurance, provided that in the latter event the underwriter
shall have first received evidence that the liability insured against has been
discharged; and
(ii) in the case of any loss (other than a loss covered by
subparagraph (i) above
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in this paragraph (e) or by paragraph (f) of this Section 1.13) under any
insurance with respect to the Vessels involving any damage to a Vessel or
liability of a Vessel, the underwriters may pay directly for the repair,
salvage, liability or other charges involved, or, if the Owner shall have first
fully repaired the damage and paid the cost thereof or discharged the liability
or paid other charges and the underwriters shall have first received evidence
thereof, may pay the Owner as reimbursement therefor; PROVIDED, however, that
(a) if such damage involves a loss in excess of One Million Dollars ($1,000,000)
(after application of deductibles), the underwriters shall not make such payment
without first obtaining the written consent of the Mortgagee, and (b) no payment
shall be made to the Owner if there shall have occurred and be continuing an
event of default under this Mortgage, the Loan Agreement or the Note or an event
that, with the giving of notice or the lapse of time, or both, could, in the
discretion of Mortgagee, reasonably be expected to constitute an event of
default under this Mortgage, the Loan Agreement or the Note. Any loss which is
paid to the Mortgagee but which should have been paid, in accordance with the
provisions of this paragraph, directly to the Owner, shall be paid by the
Mortgagee to or as directed by the Owner, but only if there shall not have
occurred any event of default under this Mortgage, the Loan Agreement or the
Note, or any event that, with the giving of notice or lapse of time, or both,
could, in the discretion of the Mortgagee, reasonably be expected to constitute
an event of default under this Mortgage, the Loan Agreement or the Note.
Subject to the immediately preceding sentence, any insurance monies paid to the
Mortgagee shall, in the Mortgagee's sole and absolute discretion, be applied to
the repayment of the Obligations as provided in the Loan Agreement or to the
repair or replacement of the property so damaged.
(f) In the event of an actual or constructive total loss or an agreed or a
compromised constructive total loss of or requisition of title to or seizure or
forfeiture of any Vessel, all amounts payable therefor shall be paid to the
Mortgagee and shall be applied: FIRST, to the payment of the expenses of the
Mortgagee in collecting such payments; SECOND, to the payment of the then
accrued but unpaid interest on the Note; THIRD, to the payment of the unpaid
principal indebtedness evidenced by the Note; FOURTH, to the payment of such
additional sums as the Owner may be obligated to pay the Mortgagee or any other
Person under the terms of this Mortgage, the Note and the Loan Agreement; and
any funds remaining after such payments shall be paid to the Owner, its
successors in interest or its assigns or to whomsoever may be entitled thereto.
(g) The Owner shall deliver to the Mortgagee the originals of all cover
notes, binders and certificates of entry in protection and indemnity
associations, and all endorsements and riders amendatory thereof in respect of
insurance maintained under this Mortgage.
(h) The Owner agrees that it will not do any act, or voluntarily suffer or
permit any act to be done, whereby any insurance required hereunder shall or may
be suspended, impaired or defeated and will not suffer or permit any of the
Vessels to engage in any voyage or to carry any cargo not permitted under the
policies of insurance in effect, without first covering such Vessel with
insurance, satisfactory in all respects, including the amount thereof, to the
Mortgagee in the exercise of its reasonable discretion, for such voyage or the
carriage of such cargo.
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(i) In the event that any claim or lien is asserted against any Vessel for
loss, damage or expense which is covered by insurance hereunder, and it is
necessary for the Owner to obtain a bond or supply other security to prevent the
arrest of such Vessel or to release such Vessel from arrest on account of such
claim or lien, the Mortgagee may, in its sole discretion, and upon notice to the
Owner, assign to any person, firm or corporation executing a surety or guarantee
bond or other agreement to save or release such Vessel from such arrest, all
right, title and interest of the Mortgagee in and to said insurance covering
said loss, damage or expense, as collateral security to indemnify such person,
firm or corporation against liability under said bond or other agreement.
Section 1.14. REIMBURSEMENT. The Owner will, upon demand therefor, pay or
reimburse the Mortgagee, with interest at the rate for overdue amounts set forth
in the Loan Agreement, for: (i) any and all reasonable expenses or expenditures
which the Mortgagee may from time to time incur or make in connection with
insurance premiums, discharge or purchase of any lien, libel or seizure of any
one or all of the Vessels, taxes, dues, assessments, governmental charges, fines
and penalties, repairs, attorneys' fees and any other expenses or expenditures
which the Owner is obligated herein to incur or make, but fails to incur or
make; and (ii) all reasonable costs, fees and expenses suffered, incurred or
made by the Mortgagee in exercising, protecting or pursuing its rights or
remedies under this Mortgage (including, but not limited to, expenses of any
sale or taking of any Vessel, attorneys' fees and court costs). Such obligation
of the Owner to reimburse the Mortgagee shall be an additional indebtedness due
from the Owner, secured by this Mortgage, and shall be payable by the Owner on
demand. The Mortgagee, though privileged so to do, shall be under no obligation
to the Owner or to any other person to incur or make any such expenses or
expenditures, nor shall the incurring or making thereof relieve the Owner of any
default in that respect.
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.1. EVENTS OF DEFAULT. The Owner shall be in default hereunder
upon the happening of any one or all of the following events or conditions (each
an "event of default"):
(a) any Event of Default (as defined in the Loan Agreement) shall have
occurred and be continuing; or
(b) default shall be made in the due and punctual observance or
performance of any of the provisions of this Mortgage; or
(c) any notice shall have been issued on behalf of the United States of
the seizure of any Vessel or to the effect that the Certificate of Documentation
of any Vessel is subject to revocation or cancellation, for any reason
whatsoever and such notice is not rescinded or revoked within five (5) days of
the issuance thereof; or
(d) the Owner or any charterer shall abandon any one or all of the Vessels
or remove or
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attempt to remove any one or all of the Vessels beyond the limits of the United
States, except on voyage made with the intention of returning to the United
States; or
(e) the termination of the Owner's or any charterer's status as a citizen
of the United States under Section 2 of the Shipping Act of 1916, as amended.
If any event of default as specified herein shall have occurred and be
continuing, then and in each and every such case the Mortgagee shall have the
right to:
(1) exercise all of the rights and remedies in foreclosure and
otherwise given to mortgagees by the provisions of Title 00 Xxxxxx Xxxxxx
Xxxx Xxxxxxx 00000 ET SEQ. and all acts amendatory thereof and supplemental
thereto, or the applicable law of any other jurisdiction;
(2) Bring suit at law, in equity or in admiralty to recover judgment
for any and all outstanding Obligations or any sum secured by this
Mortgage, or otherwise, and collect the same out of any and all property of
the Owner whether covered by this Mortgage or otherwise;
(3) Take and enter into possession of any one or all of the Vessels,
at any time, wherever the same may be, without legal process and without
being responsible for loss or damage; and the Owner or other person in
possession forthwith upon demand of the Mortgagee shall surrender to the
Mortgagee possession of such Vessels, and the Mortgagee may, without being
responsible for loss or damage, hold, lay up, lease, charter, operate or
otherwise use the Vessels, for such time and upon such terms as it may deem
to be for its best advantage, and demand, collect and retain, compromise
and xxx for all hire, freights, earnings, issues, revenues, income,
profits, return premiums, salvage awards or recoveries, recoveries in
general average, and all other sums due or to become due in respect of the
Vessels, including any amounts payable in respect of any insurance in
connection with the Vessels, from any person whomsoever, accounting only
for the net profits, if any, arising from such use of the Vessels and
charging upon all receipts from the use of the Vessels or from the sale
thereof by court proceedings or pursuant to subparagraph (4) next
following, all costs, expenses, charges, damages or losses by reason of
such use; and if at any time the Mortgagee shall avail itself of the right
herein given to take any one or more of all of the Vessels, the Mortgagee
shall have the right to dock such Vessels for a reasonable time at any
dock, pier or other premises of the Owner without charge, or to dock it at
any other place at the cost and expense of the Owner;
(4) Take and enter into possession of all or any one or more of the
Vessels, 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 such Vessels at public or private sale, at any place
and at such time as the Mortgagee may deem advisable, free from any claim
by the Owner in admiralty, in equity, at law or by statute. In the case of
a public sale, the Mortgagee shall give notice of the time and place of the
sale with a general
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description of the property in the following manner:
(i) by publishing such notice for ten (10) consecutive days in a
daily newspaper of general circulation published in the port of
documentation and the places of sale of such Vessels; and
(ii) by mailing a similar notice to the Owner at least fourteen
(14) days prior to the date fixed for such sale.
In the event that any Vessel shall be offered for sale by a private sale,
no newspaper publication of notice shall be required, but the Mortgagee
shall mail written notice of sale to the Owner at least fourteen (14) days
prior to the date fixed for entering into the contract of sale. The
Mortgagee may, without notice or publication, adjourn any public or private
sale or cause such sale to be adjourned from time to time by announcement
at the time and place fixed for sale or for entering into a contract of
sale, and such sale or contract of sale may, without further notice, be
made at the time and place to which the sale or contract of sale was so
adjourned. The Mortgagee shall not be obligated to make any sale of any
Vessel if it shall determine not to do so, regardless of the fact that
notice of sale may have been given. Any sale may be conducted without
bringing the Vessel or Vessels to the place designated for such sale and in
such manner as the Mortgagee may deem to be for the best advantage of the
Mortgagee.
(5) Instruct the Owner to terminate any existing management
agreements affecting all or any one of the Vessels, and the Owner shall,
upon the giving of such instructions by the Mortgagee, immediately
terminate any such management agreements and shall appoint other managers
satisfactory to the Mortgagee and upon terms and conditions satisfactory to
the Mortgagee.
(6) If commercially reasonable to do so, instruct the Owner to make
application, if relevant, to the United States Maritime Administration
("MarAd") for permission of MarAd to sell all or any one of the Vessels for
purposes of foreign scrapping of such Vessels or other purposes requiring
such permission, and the Owner shall, upon the giving of such instructions
by the Mortgagee, immediately apply for such permission of MarAd.
Section 2.2. FINALITY OF SALE. Any sale of any Vessel made in pursuance
of this Mortgage, whether by exercise of the power of sale granted herein or by
virtue of any judicial proceedings, shall operate to divest all right, title and
interest of any nature whatsoever of the Owner therein and thereto, and shall
bar the Owner, its successors and assigns, and all persons claiming by, through
or under them. No purchaser shall be bound to inquire whether notice has been
given, or whether any default has occurred, or as to the propriety of the sale,
or as to the application of the proceeds thereof. In the case of any such sale,
any purchaser who is the holder of the Note shall be entitled, for the purpose
of making settlement or payment for the property purchased and subject to the
sharing provisions set forth in the Loan Agreement, to apply the balance due
under the Note or a part thereof as part or
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all of the purchase price to the extent of the amount remaining due and unpaid
thereon. At any such sale, the holder of the Note may bid for and purchase such
property and upon compliance with the terms of sale may hold, retain and dispose
of such property without further accountability therefor.
Section 2.3. APPOINTMENT OF ATTORNEY. (a) The Mortgagee is hereby
appointed attorney in-fact of the Owner, with full power of substitution, upon
the occurrence and during the continuance of any event of default, to make
application, if relevant, to MarAd for permission of MarAd to sell all or any of
the Vessels.
(b) To the extent permitted under the Federal Ship Mortgage Act, the
Mortgagee is hereby appointed attorney in-fact of the Owner, with full power of
substitution, upon the occurrence and during the continuance of any event of
default, to execute and deliver to any purchaser upon any sale of all or any one
or more of the Vessels made in pursuance of this Mortgage, whether by exercise
of the power of sale granted herein or by virtue of any judicial proceedings,
and is hereby vested with full power and authority to make, in the name and in
behalf of the Owner, a good conveyance of the title to such Vessels when so
sold. In the event of any sale of any Vessel by exercise of any power herein
contained, the Owner will, if and when required by the Mortgagee, execute such
form of conveyance of such Vessel as the Mortgagee may direct or approve.
(c) To the extent permitted under the Federal Ship Mortgage Act, the
Mortgagee is hereby irrevocably appointed attorney-in-fact of the Owner, with
full power of substitution, upon the occurrence and during the continuance of
any event of default, in the name of the Owner to demand, collect, receive,
compromise and xxx for, so far as may be permitted by law, all freights, hire,
earnings, issues, revenues, income and profits of the Vessels, including all
amounts due from underwriters under any insurance thereon as payment of losses
or as return premiums or otherwise, salvage awards and recoveries, recoveries in
general average or otherwise, and all other sums due or to become due at the
time of the occurrence and during the continuance of any event of default in
respect of the Vessels, or in respect of any insurance thereon, from any person
whomsoever, and to make, give and execute in the name of the Owner acquittance,
receipts, releases or other discharges for the same, whether under seal or
otherwise, to take possession of, sell or otherwise dispose of or manage or
employ the Vessels, to execute and deliver charters and a xxxx of sale with
respect to the Vessels and to endorse and accept in the name of the Owner all
checks, notes, drafts, warrants, agreements and other instruments in writing
with respect to the foregoing.
Section 2.4. ADDITIONAL RIGHTS. Whenever any right to enter and take
possession of all or any one of the Vessels accrues to the Mortgagee, it may
require the Owner to deliver and the Owner shall on demand, at its own cost and
expense, deliver such Vessels to the Mortgagee. If any legal proceedings shall
be taken to enforce any right under this Mortgage, the Mortgagee shall be
entitled as a matter of right to the appointment of a receiver of the Vessels
and the freights, hire, earnings, issues, revenues and profits due or to become
due and arising from the operation thereof.
Section 2.5. RELEASE OF LIENS. The Owner authorizes and empowers the
Mortgagee or its appointees or any of them to appear in the name of the Owner,
its successors and assigns, in any
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court of any country or nation of the world where a suit is pending against all
or any one of the Vessels because of or on account of any alleged lien against
such Vessels from which such Vessels have not been released and to take such
proceedings as to them may seem proper toward the defense of such suit, and the
purchase or discharge of such lien, and all reasonable expenditures made or
incurred by them for the purpose of such defense or purchase or discharge shall
be a debt due from the Owner, its successors and assigns, to the Mortgagee and
shall be secured by the lien of this Mortgage.
Section 2.6. CUMULATIVE REMEDIES; NO WAIVER. Each and every power and
remedy herein given to the Mortgagee shall be cumulative and shall be in
addition to every other power and remedy herein given 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 the
Mortgagee, and the exercise or the beginning of the exercise of any power or
remedy shall not be construed to be a waiver of the right to exercise at the
same time or thereafter any other consistent or inconsistent power or remedy.
No delay or omission by the Mortgagee in the exercise of any right or power or
in the prosecution 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 such event
of default or to be an acquiescence therein; nor shall the acceptance by the
Mortgagee of any security or of any payment maturing after any event of default
or of any payment on account of any past default be construed to be a waiver of
any right arising out of any future event of default or of any past event of
default not completely cured thereby. In case the Mortgagee shall have
proceeded to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Mortgagee, then, and in every such case, the Owner and the Mortgagee
shall be restored to their former positions and rights hereunder with respect to
the property subject or intended to be subject to this Mortgage, and all rights,
remedies and powers of the Mortgagee shall continue as if no such proceedings
had been taken.
Section 2.7. OFFERS TO CURE. If at any time after the occurrence of an
event of default and prior to the actual sale of the Vessels by the Mortgagee or
prior to commencement of any foreclosure proceedings, the Owner offers to cure
completely all events of default and to pay all expenses and advances to the
Mortgagee consequent on such event of default, with interest at the rate of
interest for overdue amounts set forth in Section 3.10 of the Loan Agreement,
then the Mortgagee may, if it in its sole discretion so elects, accept such
offer and payment and restore the Owner to its former position, but such action
shall not affect any subsequent event of default or impair any rights consequent
thereon.
Section 2.8. APPLICATION OF PROCEEDS. In the event of any taking of the
Vessels by the Mortgagee or any sale of the Vessels under any of the powers
herein specified, the proceeds of any such sale and the net earnings of any
charter operation or other use of the Vessels by the Mortgagee under any such
power, together with any and all moneys received by the Mortgagee pursuant to or
under the terms of this Mortgage or in any proceedings hereunder or with respect
hereto, the application of
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which has not elsewhere herein been specifically provided for, shall be applied
as set forth in the Loan Agreement.
Section 2.9. FURTHER ASSURANCES. In the event that this Mortgage, the
Loan Agreement or the Note, or any provision hereof or thereof, shall be deemed
invalid in whole or in part by reason of any present or future law or any
decision of any court having jurisdiction, or if the documents at any time held
by the Mortgagee shall be deemed by the Mortgagee for any reason insufficient to
carry out the provisions, true intent or spirit of this Mortgage, the Loan
Agreement or the Note, then, from time to time, the Owner will execute, on its
own behalf, such other and further assurances and documents as in the opinion of
the Mortgagee may be required more effectually to subject the Vessels to the
payment of the principal sum of the Obligations, as in the Loan Agreement and as
herein provided, and to the performance of the terms and provisions of the Note,
the Loan Agreement and this Mortgage.
Section 2.10. SEVERABILITY. Any provision of this Mortgage which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 2.11. REQUISITION OF TITLE, USE. (a) In the event that the title
or ownership of any Vessel shall be requisitioned, purchased or taken by any
government of any 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 therefor, and the compensation, purchase price, reimbursement or
award for such requisition, purchase or other taking of such title or ownership
is hereby agreed to be payable to the Mortgagee, who shall be entitled to
receive the same and shall apply it as provided in the Loan Agreement. In the
event of any such requisition, purchase or taking, and the failure of the
Mortgagee to receive proceeds as herein provided, the Owner shall promptly
execute and deliver to the Mortgagee 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 part of the compensation, purchase price, reimbursement or award as is
payable to it hereunder.
(b) In the event that any government of any country or any department,
agency or representative thereof shall not take over the title or ownership of
any Vessel but shall requisition, charter or in any manner take over the use of
such Vessel pursuant to any present or future law, proclamation, decree, order
or otherwise and shall, as a result of such requisitioning, chartering or taking
of the use of such Vessel pay or become liable to pay sums by reason of the loss
of or injury to or depreciation of such Vessel, any such sum is hereby made
payable to the Mortgagee, who shall apply it as provided in the Loan Agreement.
In the event of any such requisitioning, chartering or taking of the use of any
Vessel, the Owner shall promptly execute and deliver to the Mortgagee such
documents, if any, and shall promptly do and perform such acts, if any, as in
the reasonable opinion of the Mortgagee may be necessary or useful to facilitate
or expedite the collection by the Mortgagee of such claims arising out of the
requisitioning, chartering or taking of the use of such Vessel.
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(c) Unless and until an event of default shall have occurred and be
continuing, the Owner (a) shall be suffered and permitted to retain actual use
and possession of the Vessels and (b) shall have the right, from time to time,
in its discretion, and without application to the Mortgagee, and without
obtaining a release thereof by the Mortgagee, to dispose of or substitute for,
free from the lien hereof, any boilers, engines, machinery, bowsprits, masts,
spars, rigging, boats, anchors, cables, chains, tackle, apparel, furniture,
fittings, capstans, outfit, tools, pumps, pumping or other equipment or any
other appurtenances and spares to any of the Vessels that are no longer useful,
necessary, profitable or advantageous in the operation of the Vessels; provided
that, simultaneously with such disposal, the Owner shall replace such item(s)
disposed of with similar new or refurbished items, such replacement property to
be free and clear of all liens and encumbrances, other than liens permitted
hereunder, and all of which replacement property shall forthwith become subject
to the lien of this Mortgage as a preferred mortgage thereon.
ARTICLE III
DEFEASANCE
If the Owner shall indefeasibly pay and discharge the entire indebtedness
secured hereby by well and truly paying or causing to be paid the principal of
and interest due under the Note and all of the other Obligations under the Loan
Agreement as and when the same becomes due and payable and if the Owner shall
also indefeasibly pay or cause to be paid all other sums payable hereunder by
the Owner, then this Mortgage and the lien, rights and interest hereby granted
shall cease, determine and become null and void, and the Mortgagee shall, at the
request of the Owner, execute and deliver such instrument or instruments of
satisfaction as may be necessary to satisfy and discharge the lien hereof; and
forthwith the estate, right, title and interest of the Mortgagee in and to all
property subject to this Mortgage shall thereupon cease, determine and become
null and void.
ARTICLE IV
SUNDRY PROVISIONS
Section 4.1. INDEBTEDNESS SECURED. For the purpose of recording of this
First Preferred Fleet Mortgage, as required by Title 00 Xxxxxx Xxxxxx Code
Section 31301 ET SEQ., the total amount of obligations that is or may become
secured by this Mortgage is the principal sum of Three Million Four Hundred
Twenty Thousand Six Hundred Fifty-Seven Dollars and Seventy-Six Cents
($3,420,657.76) plus interest, expenses and fees, plus any additional amounts
for which the Owner may become liable in connection with the performance of the
covenants of this Mortgage and the Loan Agreement. The total discharge amount
is the same as the total amount. The Owner's interest in each of the Vessels is
100% and the interest mortgaged with respect to each of the Vessels is 100%.
Section 4.2. SUCCESSORS AND ASSIGNS. All of the covenants, promises,
stipulations and agreements of the Owner in this Mortgage contained shall bind
the Owner and its successors and assigns and
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shall inure to the benefit of the Mortgagee and its successors and assigns
PROVIDED, that the Owner shall not assign or transfer any of its rights or
obligations hereunder.
Section 4.3. AGENTS. Wherever and whenever herein any right, power or
authority is granted or given to the Mortgagee, such right, power or authority
may be exercised in all cases by the Mortgagee or such agent or agents as it may
appoint, and the act or acts of such agent or agents when taken shall constitute
the act or acts of the Mortgagee hereunder.
Section 4.4. NOTICES. Any notice, request, demand, direction, consent or
waiver or other documents in respect of this Mortgage shall be sufficient for
every purpose if in writing and sent either by telegram, telecopy or letter
(delivered by hand or sent by registered or certified mail, return receipt
requested, postage prepaid) or telecopy confirmed by letter (sent as aforesaid),
addressed as follows:
(a) To the Owner:
Xxxxx Towing Corporation
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxxxx, Esquire
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
(b) To the Mortgagee:
BancBoston Leasing Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Director of Administration
Telecopier: (000) 000-0000
with a copy to:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
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Any notice, request or communication hereunder shall be deemed to have been
given in the case of a letter, when delivered by hand at the address provided in
this Section or three (3) days after having been deposited in the mail with
first class postage prepaid, addressed as aforesaid, or in the case of a
telecopy, at the time of dispatch thereof, if in the normal business hours in
the state or country where received or otherwise at the opening of business on
the next succeeding business day. Any party may change the person or address to
whom or which the notices are to be given hereunder, by notice duly given
hereunder.
Section 4.5. NO WAIVER OF PREFERRED STATUS. Notwithstanding anything
contained in this Mortgage to the contrary, nothing herein shall waive the
preferred status of this Mortgage and if any provision herein shall be construed
to waive such status, then such provision shall to the extent so construed be
void and of no effect.
Section 4.6. INDEMNITY. The Owner assumes liability for, and agrees to
indemnify and hold the Mortgagee harmless from, all claims, costs, expenses
(including reasonable legal fees and expenses), damages and liabilities arising
from or pertaining to this Mortgage or the ownership, use, possession or
operation of the Vessels; PROVIDED that the Owner shall have no obligation
hereunder for indemnified liabilities arising from the gross negligence or
willful misconduct of the Mortgagee. The agreements and indemnities contained
in this section shall survive the maturity or earlier discharge of this Mortgage
and payment in full of the Note.
Section 4.7. CITIZENSHIP. Notwithstanding any other language in this
Mortgage to the contrary, the Mortgagee shall not take any action in violation
of Section 9 of the Shipping Act, 1916, as amended by Public Law 100-700 (46
U.S.C. Chapter 313). To the extent any provision of this Mortgage contravenes
Section 9 of the Shipping Act, 1916, such provision may be deemed void without
affecting the validity and enforceability of the other provisions of this
Mortgage.
Section 4.8. CONSENT TO FORUM. THE OWNER HEREBY IRREVOCABLY CONSENTS AND
AGREES THAT ANY LEGAL ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR IN ANY WAY
IN CONNECTION WITH THIS MORTGAGE MAY BE INSTITUTED OR BROUGHT IN THE COURTS OF
THE COMMONWEALTH OF MASSACHUSETTS OR THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS, AS THE MORTGAGEE MAY ELECT, AND BY EXECUTION AND
DELIVERY OF THIS MORTGAGE, THE OWNER HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
NON-EXCLUSIVE JURISDICTION OF ANY SUCH COURT, AND TO ALL PROCEEDINGS IN SUCH
COURTS. THE OWNER IRREVOCABLY CONSENTS TO SERVICE OF ANY SUMMONS AND/OR LEGAL
PROCESS BY REGISTERED OR CERTIFIED UNITED STATES MAIL, POSTAGE PREPAID, TO THE
OWNER AT ITS ADDRESS AS SET FORTH IN SECTION 4.4 OF ARTICLE IV HEREOF, SUCH
METHOD OF SERVICE TO CONSTITUTE, IN EVERY RESPECT, SUFFICIENT AND EFFECTIVE
SERVICE OF PROCESS IN ANY SUCH
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LEGAL ACTION OR PROCEEDING. NOTHING IN THIS MORTGAGE SHALL AFFECT THE RIGHT OF
THE MORTGAGEE TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR LIMIT THE RIGHT OF THE MORTGAGEE TO BRING ACTIONS, SUITS OR PROCEEDINGS
WHETHER IN REM, IN PERSONAM, IN LAW, EQUITY, ADMIRALTY OR OTHERWISE IN THE
COURTS OF ANY OTHER JURISDICTION. THE OWNER FURTHER AGREES THAT FINAL JUDGMENT
AGAINST IT IN ANY SUCH LEGAL ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN ANY OTHER JURISDICTION, WITHIN OR OUTSIDE THE UNITED STATES
OF AMERICA, BY SUIT ON THE JUDGMENT, A CERTIFIED OR EXEMPLIFIED COPY OF WHICH
SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT OF THE LIABILITY.
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IN WITNESS WHEREOF, the Owner has executed this Mortgage the day and year
first above written.
XXXXX TOWING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Title: Vice President
ACKNOWLEDGMENT
STATE OR COMMONWEALTH OF CONNECTICUT )
) ss.:
COUNTY OF FAIRFIELD )
On this 10th day of December, 1997 before me personally came Xxxxxxx X.
XxXxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 000 X. 000xx Xx., Xxx Xxxx, XX 00000; that he is the Vice President
of Xxxxx Towing Corporation, a New York corporation, the corporation described
in and which executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of said corporation and acknowledged
the same to be his act and deed as such Vice President on behalf of the
corporation.
/s/ Xxxxxx Xxxxxx
------------------------
Notary Public
My commission expires: December 31, 1998.
SCHEDULE 1
VESSEL NAME OFFICIAL NUMBER
Xxxxx Xxxxx 644241
SCHEDULE 2
VESSEL NAME OFFICIAL NUMBER VALUE INSURED
Xxxxx Xxxxx 644241 $5,000,000
EXHIBIT A
[Attach Note]
