AMENDMENT NO. 1
Dated: September 29, 2000
TO
FIRST PREFERRED MORTGAGE
Dated: September 30, 1997
XXXXXXX LTD.
the Owner
and
CHRISTIANIA BANK OG KREDITKASSE ASA,
Mortgagee
"XXXXXXX"
THIS FIRST PREFERRED MORTGAGE AMENDMENT NO. 1, dated September
29, 2000, between XXXXXXX LTD., a company organized and existing under the laws
of the Cayman Islands, having its registered office in Grand Cayman, Cayman
Islands, British West Indies, and qualified as a foreign maritime entity under
the laws of the Republic of Liberia (the "Owner"), and CHRISTIANIA BANK OG
KREDITKASSE ASA, a banking corporation organized and existing under the laws of
the Kingdom of Norway, as security trustee (herein, in such capacity, called the
"Mortgagee") under a trust deed, dated September 30, 1997, among the Owner, the
Mortgagee, the Senior Agent, the Junior Agent, the CBK Senior Swap Counterparty,
the CBK Junior Swap Counterparty, the Senior Lenders, the Junior Lenders and the
XX Xxxxxx Senior Swap Counterparty (as such terms are hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Owner has heretofore executed and delivered to
the Mortgagee a First Preferred Mortgage (the "Mortgage"), dated September 30,
1997, covering the whole of the vessel named XXXXXXX (the "Vessel"), Official
No. 10845, documented in the name of the Owner under the laws of the Republic of
Liberia, having its home port at Monrovia, Liberia, of 78,596 gross tons and
43,083 net tons or thereabouts;
WHEREAS, the Mortgage was duly filed for record in the Office
of the Deputy Commissioner or Maritime Affairs of the Republic of Liberia at New
York, New York in Book PM 49, page 876 at 11:01 A.M.
E.D.S.T. on September 30, 1997;
WHEREAS, the Mortgage was given to secure the payment and
performance by the Owner of its obligations under (i) a Senior Facility
Agreement (the "Senior Facility Agreement"), dated September 30, 1997, among the
Owner, as borrower, the financial institutions set forth in the Fourth Schedule
thereto (collectively, the "Senior Lenders"), as lenders, Christiania Bank og
Kreditkasse ASA, as agent (in such capacity, the "Senior Agent") for the Senior
Lenders, and the Mortgagee, as security trustee, pursuant to which the Senior
Lenders have heretofore severally loaned to the Owner U.S.$24,400,000 (the
"Senior Loan"), of which original principal amount there remains outstanding on
the date hereof U.S.$15,700,000, (ii) an ISDA Master Agreement, dated September
26, 1997, between the Owner and Christiania Bank og Kreditkasse ASA (in such
capacity, the "CBK Senior Swap Counterparty"), and Confirmation Letter, dated
September 26, 1997 (said ISDA Master Agreement and Confirmation Letter being
herein collectively called the "CBK Senior Swap Agreement"), pursuant to which
the CBK Senior Swap Counterparty has made available to the Owner an interest
rate swap facility to enable the Owner to fix the interest rate on a portion of
its
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indebtedness under the Senior Facility Agreement, (iii) an ISDA Master
Agreement, dated September 26, 1997, between the Owner and Skandinaviska
Enskilda Xxxxxx XX (publ) (in such capacity, the "XX Xxxxxx Senior Swap
Counterparty"), and Confirmation Letter, dated September 29, 1997 (said ISDA
Master Agreement and Confirmation Letter being herein collectively called the
"XX Xxxxxx Senior Swap Agreement"), pursuant to which the XX Xxxxxx Senior Swap
Counterparty has made available to the Owner an interest rate swap facility to
enable the Owner to fix the interest rate on a further portion of its
indebtedness under the Senior Facility Agreement, (iv) a Junior Facility
Agreement (the "Junior Facility Agreement"), dated September 30, 1997, among the
Owner, as borrower, the financial institutions as are a party thereto
(collectively, the "Junior Lenders"), as lenders, Christiania Bank og
Kreditkasse ASA, as agent (in such capacity, the "Junior Agent") for the Junior
Lenders, and the Mortgagee, as security trustee, pursuant to which the Junior
Lenders have heretofore severally loaned to the Owner U.S.$3,000,000 (the
"Junior Loan"), all of which original principal amount remains outstanding on
the date hereof, and (v) an ISDA Master Agreement, dated September 26, 1997,
between the Owner and Christiania Bank og Kreditkasse ASA (in such capacity, the
"Junior Swap Counterparty"), and Confirmation Letter, dated September 26, 1997
(said ISDA Master Agreement and Confirmation
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Letter being herein collectively called the "Junior Swap Agreement") (the CBK
Senior Swap Agreement, the XX Xxxxxx Senior Swap Agreement and the Junior Swap
Agreement being herein collectively called the "Swap Agreements"), pursuant to
which the Junior Swap Counterparty has made available to the Owner an interest
rate swap facility to enable the Owner to fix the interest rate on its
indebtedness under the Junior Facility Agreement;
WHEREAS, pursuant to an Amendment Agreement (the "Junior
Facility Amendment Agreement") (the Senior Facility Agreement and the Junior
Facility Agreement, as amended by the Junior Facility Amendment Agreement, being
herein called the "Facility Agreements"), dated September , 2000, among the
Owner, the Mortgagee, the Junior Lenders and the Junior Agent (a copy of the
form of which, with Schedules, is annexed hereto as Exhibit 1), to the Junior
Facility Agreement, Christiania Bank og Kreditkasse ASA has loaned to the Owner
an additional U.S. $600,000, thereby increasing the Junior Loan to U.S.
$3,600,000, such additional loan to bear interest as provided in the Junior
Facility Amendment Agreement and to be repayable in full on or before September
30, 2002;
WHEREAS, the Owner and the Mortgagee desire to amend the
Mortgage to have the Vessel stand as security under the Mortgage, as amended by
this Amendment, for the payment and
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performance by the Owner of its obligations under the Senior Facility Agreement,
under the CBK Senior Swap Agreement, under the XX Xxxxxx Senior Swap Agreement,
under the Junior Loan Agreement, as amended by the Junior Facility Amendment
Agreement, and under the Junior Swap Agreement.
NOW, THEREFORE, in consideration of the premises and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Owner and the Mortgagee hereby agree as follows:
SECTION 1. In order to secure the payment of the Outstanding
Indebtedness (as such term is defined in Section 2 hereof) in the specific
manner set forth in the Mortgage, as hereby amended, in the Swap Agreements and
in the Facility Agreements, the Owner has granted, conveyed and mortgaged and
does by these presents grant, convey and mortgage to and in favor of the
Mortgagee, its successors and assigns, the whole of the Vessel, TO HAVE AND TO
HOLD the same unto the Mortgagee, its successors and assigns, forever upon the
terms set forth in the Mortgage, as hereby amended, for the enforcement of the
payment of the Outstanding Indebtedness and to secure the performance and
observance of and compliance with the covenants, terms and conditions in the
Mortgage, as hereby amended, in the Swap Agreements and in the Facility
Agreements, contained, PROVIDED, HOWEVER, and the terms of the Mortgage, as
hereby amended, are
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such that, the Mortgage, as hereby amended, shall be discharged, cancelled and
have no further effect when there shall be no further amounts payable to the
Senior Lenders, the Senior Agent, the Junior Lenders, the Junior Agent, the
Mortgagee, the CBK Senior Swap Counterparty, the XX Xxxxxx Senior Swap
Counterparty and the Junior Swap Counterparty in respect of the Outstanding
Indebtedness and the Owner shall have complied with all of the covenants, terms
and conditions in the Mortgage, as hereby amended, in the Swap Agreements and in
the Facility Agreements contained.
SECTION 2. The term "Facility Agreements", as used in the
Mortgage, as amended hereby, shall be deemed to mean the Senior Facility
Agreement and the Junior Facility Agreement, as amended by the Junior Facility
Amendment Agreement. The term "Outstanding Indebtedness" as used hereinabove and
in the Mortgage, as amended hereby, shall be deemed to mean the Senior Loan, the
Junior Loan (as increased to $3,600,000 pursuant to the terms of the Junior
Facility Amendment Agreement), the Senior Contingent Sums (as such term is
defined in the Mortgage), the Junior Contingent Sum (as such term is defined in
the Mortgage), interest thereon and all other sums of money owing to the Senior
Lenders, the Senior Agent, the Junior Lenders, the Junior Agent, the Mortgagee,
the CBK Senior Swap Counterparty, the XX Xxxxxx Senior Swap Counterparty and/or
the
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Junior Swap Counterparty by the Owner from time to time under or in connection
with the Facility Agreements, the Swap Agreements and the Mortgage, as hereby
amended.
SECTION 3. This Amendment shall be recorded in the office of
the Deputy Commissioner of Maritime Affairs of the Republic of Liberia in New
York, New York, at the expense of the Owner, and the Owner will cause to be
placed on board the Vessel a duly certified copy of this Amendment.
SECTION 5. This Amendment amends mortgage covenants and
decreases the total amount secured by the Mortgage to U.S. $20,300,000, together
with interest thereon and performance of mortgage covenants. The maturity date
for the additional U.S. $600,000 loan is September 30, 2002, the maturity dates
set forth in Clause 10 of the Mortgage for the balance of the indebtedness
secured hereby remain the same and the discharge amount remains the same as the
total amount.
SECTION 6. All other terms and provisions of the Mortgage
shall remain unchanged and all of the terms and provisions of the Mortgage, as
amended by this Amendment, shall be deemed incorporated herein with the same
effect as though set forth at length in this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective
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duly authorized officers or attorneys-in-fact on the date first above written.
Signed, sealed and delivered as as
a Deed by XXXXXXX LTD.
By:________________________
Name:
Title:
CHRISTIANIA BANK OG KREDITKASSE ASA
By:_________________________________
Name:
Title:
0
XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
: ss:
COUNTY OF NEW YORK )
On the 29th day of September, in the year 2000, before me, the
undersigned, a Notary Public in and for said State, personally appeared ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
--------------------------
Notary Public
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ACKNOWLEDGEMENT
STATE OF NEW YORK )
: ss:
COUNTY OF NEW YORK )
On the 29th day of September, in the year 2000, before me, the
undersigned, a Notary Public in and for said State, personally appeared ,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
--------------------------
Notary Public
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