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EXHIBIT 4.19
FIRST NAVAL MORTGAGE
Made by
Noble Drilling (Xxxx Xxxxxx) Inc.
In Favor of
Chase Bank of Texas, National Association, as Indenture Trustee
on
Noble Xxxx Xxxxxx
Dated as of November 24, 1998
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First Naval Mortgage
Mortgagor: Noble Drilling (Xxxx Xxxxxx) Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Mortgagor's Interest in the Vessel: 100%
Mortgagee: Chase Bank of Texas, National
Association
000 Xxxxxx, Xxxxx 0000
00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Amount of Mortgage: $112,250,000.00
Maturity Date: Five years from the "Closing Date"
(as defined in the Trust Indenture
refined to below)
THIS FIRST NAVAL MORTGAGE dated as of the 24th day of November, 1998
(as amended, supplemented or otherwise modified from time to time, the
"Mortgage") is made and given by Noble Drilling (Xxxx Xxxxxx) Inc., a Delaware
corporation (the "Mortgagor"), whose address is set forth above, to Chase Bank
of Texas, National Association, as Indenture Trustee for any and all future
holders of the Notes (as such term is hereinafter defined), whose address is set
forth above (hereinafter referred to, together with its successors and assigns,
as the "Mortgagee").
RECITALS
A. Of even date herewith, Mortgagor and Chase Bank of Texas, National
Association have entered into that certain Trust Indenture and Security
Agreement (as the same may be amended, supplemented, restated or otherwise
modified from time to time, the "Trust Indenture"). Pursuant to the terms and
conditions contained in the Trust Indenture, Mortgagor entered into those
certain Note Purchase Agreements dated September 24, 1998 (the "Note Purchase
Agreements") wherein certain lenders (the "Lenders") have agreed to make a term
loan to Mortgagor in the aggregate principal amount of $112,250,000.00, as
evidenced by those certain Series A Senior Secured Notes in the original
principal amount of $95,412,500 and those certain Series B Senior Secured Notes
in the original principal amount of $16,837,500 (the promissory notes referred
to above, as the same may be amended, supplemented, restated or otherwise
modified from time to time, being herein collectively referred to as the
"Notes"). The Series A Senior Secured Notes are payable in installments of
interest at a rate per
3
annum (based on a 360 day year of twelve thirty day months) determined in
accordance with the following formula: 6.33% per annum plus an additional 3
basis points to be added on the 16th day of each calendar month hereafter if the
Closing has failed to occur prior thereto; and payments of principal in
accordance with the provisions of an amortization schedule attached attached to
each of the Notes, and the Series B Senior Secured Notes provide for the monthly
payment of interest at a rate per annum (based on a 360 day year of twelve
thirty day months) determined in accordance with the following formula: the rate
reported at 2:00 p.m. United States eastern time on the Business Day immediately
before the Closing Date (as defined in the Trust Indenture) on the PX1
government page of the Bloomberg Service as the yield to maturity for the five
year on-the-run U.S. Treasury security, plus 164 basis points; with principal
payable at maturity. Copies of the Trust Indenture, Note Purchase Agreements and
the Notes are on file at the offices of Mortgagee at the address above, where
they may be consulted for the full text thereof. The Trust Indenture, Note
Purchase Agreements and the Notes, by reference, are incorporated herein.
B. Mortgagee has requested pursuant to the terms of the Trust Indenture
that Mortgagor execute and deliver this Mortgage, and Mortgagor has agreed to
enter into this Mortgage on the vessel "Noble Xxxx Xxxxxx", duly documented in
the name of Mortgagor under the laws and flag of the Republic of Panama Patente
No. 27264-HT, bearing international call letters HP-9320, of 13,665 gross
tonnage, 4,099 net tonnage, 93.68 meters in length, 100.05 meters in width,
39.62 meters in depth, and title registered at Filing Card N-21215, Roll 61088,
Frame 0012 on July 24, 1998 (together with the Equipment, as defined below, the
"Vessel").
C. Now, therefore, in consideration of the premises and of other
valuable consideration, receipt of which is hereby acknowledged, Mortgagor
hereby agrees as follows:
ARTICLE I
GRANTING CLAUSE AND DEFINITIONS
Section 1.1 Granting Clause. To secure the full and timely payment of
and the full and timely performance and discharge of the Obligations (as
hereinafter defined), Mortgagor hereby Mortgages and executes and constitutes a
First Naval Mortgage in accordance with the provisions of Chapter V Title IV of
Book Second of the Code of Commerce and other pertinent legislation of the
Republic of Panama in favor of Mortgagee, its successors and assigns, upon the
whole of the Vessel, together with its boilers, engines, machinery, masts,
spars, sails, riggings, boats, anchors, cables, chains, tackle, tools, pumps and
pumping equipment, apparel, furniture, fittings and equipment, spare parts,
capstans, outfit, tanks and tank batteries, fixtures, valves, fittings, draw
works, machinery and parts, meters, apparatus, equipment, appliances, tools,
implements, cables, wires, derricks, towers, casing, tubing and rods, and all
other appurtenances thereunto appertaining or belonging, whether now owned or
hereafter acquired, whether or not on board the Vessel, and all additions,
improvements, renewals and replacements hereafter made in or to the Vessel or
any part thereof, or in or to any said appurtenances (the "Equipment").
TO HAVE AND TO HOLD all and singular the above mortgaged and described
property unto Mortgagee, its successors and assigns, forever upon the terms
herein set forth;
PROVIDED, HOWEVER, and these presents are on the condition that if the
Obligations are paid and performed in accordance with the terms thereof and this
Mortgage, then these
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presents and the estates and rights hereunder shall cease, terminate and be
void, otherwise to be and remain in full force and effect.
Section 1.2 Definitions. As used in this Mortgage, the terms "Lenders",
"Mortgage", "Mortgagor", "Mortgagee", "Note Purchase Agreements", "Notes",
"Trust Indenture", and "Vessel" shall have the meanings assigned to them in the
recitals hereto. Any capitalized term used in this Mortgage and not defined
herein shall have the meaning assigned to such term in the Trust Indenture. As
used herein, the following terms shall have the following meanings:
"Dollars" or "$" means the lawful currency of the United States of
America.
"Equipment" shall have the meaning set forth in Section 1.1 hereof.
"Event of Loss" shall mean any one of the following events: (i) actual
total loss or destruction of the Vessel or any accident, occurrence or event
resulting in a constructive total loss or an agreed or compromised total loss of
the Vessel; or (ii) substantial damage to the Vessel, the repair of which is
uneconomical as determined in good faith by the Mortgagor, including, but not
limited to, any event pursuant to which insurance proceeds are available which
are not applied to repair the Vessel or any other event resulting for any reason
whatsoever in the Vessel being permanently rendered unfit for normal use; or
(iii) the condemnation, confiscation, requisition, seizure, detention,
forfeiture, purchase or other taking of title to or use of the Vessel (unless in
the case of a requisition, seizure, detention, or forfeiture, such action is
revoked within thirty (30) days or such shorter period within which SDDI may
terminate the Shell Contract as an event of force majeure) except the
requisition of the use of the Vessel by any Governmental Authority of the United
States or any state thereof on a basis not involving requisition of title to or
seizure or forfeiture of the Vessel.
"Event of Default" shall have the meaning set forth in Section 3.1
hereof.
"Notice of Entitlement to Terminate" shall have the meaning set forth
in the Performance Agreement.
"Obligations" shall mean (i) the payment when due of all indebtedness
evidenced by the Notes in the aggregate principal sum of $112,250,000.00 USD,
interest (including post-petition interest) as set forth in the Notes and the
Trust Indenture, and premiums (including Make-Whole Amount), penalties and late
charges thereon, (ii) all other indebtedness and other sums (including, without
limitation, all expenses, attorneys' fees, other fees, indemnifications,
reimbursements, damages, other monetary liabilities, and other charges) that may
and shall become due hereunder or under the Notes, the Trust Indenture or the
other Credit Documents, and (iii) any and all renewals, modifications,
amendments, extensions for any period, supplements or restatements of any of the
foregoing.
"Master's Wages" shall have the meaning set forth in Section 2.6
hereof.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
In order to induce Mortgagee to accept this Mortgage as collateral
security for the Obligations, Mortgagor represents and warrants to Mortgagee and
covenants and agrees with Mortgagee that:
Section 2.1 Legal Existence; Citizenship and Authorization. Mortgagor
is a corporation duly organized and validly existing under the laws of the state
of Delaware; and except as permitted by the Trust Indenture, shall maintain its
corporate existence during the term of this Mortgage; and is duly qualified to
engage in the trade in which the Vessel operates. Mortgagor is duly authorized
to mortgage the Vessel, and all action necessary and required by law for the
execution and delivery of this Mortgage has been duly and effectively taken by
it, and this Mortgage is the valid and enforceable obligation of Mortgagor. All
necessary consents and approvals of any Governmental Authority or any other
entity to the entering into and performance of this Mortgage have been duly
obtained or given and the entering into and performance of this Mortgage does
not and will not contravene the terms of or constitute a default under (with or
without giving of notice or lapse of time or both) any material agreement,
instrument or document to which Mortgagor is a party or by which it or its
properties are bound or affected after giving effect to the use of the proceeds
of the Notes.
Section 2.2 Ownership of Vessel; Warranty and Defense of Title.
Mortgagor is the sole owner of the whole of the Vessel and is lawfully possessed
of the whole of the Vessel, free from any Lien whatsoever other than the Lien of
this Mortgage, and the Liens permitted by Section 2.6 hereof not in excess of
$5,000,000, and Mortgagor will warrant and defend the title to and possession of
the Vessel and every part thereof for the benefit of Mortgagee against the
claims and demands of all other Persons whomsoever, subject to the Liens and
other matters permitted by the Trust Indenture or this Mortgage.
Section 2.3 Compliance with Laws.
(a) Documentation. The Vessel is, and during the term of this
Mortgage shall continue to be, duly and lawfully registered under the laws and
flag of the Republic of Panama, and Mortgagor will comply with and satisfy all
of the provisions of the laws of the Republic of Panama in order that the Vessel
shall continue to be documented pursuant to the laws of the Republic of Panama
as a vessel of the Republic of Panama under the Republic of Panama flag.
(b) Laws, Treaties and Conventions. The Vessel shall, and
Mortgagor covenants that it will in the operation of the Vessel, at all times
comply in all material respects with all applicable laws, treaties and
conventions and rules and regulations issued thereunder, and shall have on board
as and when required thereby valid certificates showing compliance therewith,
except when (i) the use or title of the Vessel has been taken, requisitioned or
chartered by any Governmental Authority, (ii) there has been an Event of Loss,
or (iii) there has been any other
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partial loss or damage with respect to the Vessel and Mortgagor shall be in
compliance with its obligations under Sections 4.2(c) and 7.3(c) of the Trust
Indenture.
Section 2.4 Operation of Vessel. Mortgagor will not (except during any
period when the use or title to the Vessel has been taken, requisitioned or
chartered by any Governmental Authority) cause or permit the Vessel to be
operated in any manner contrary to applicable law or regulation, will not
abandon the Vessel in any non-United States port (unless an Event of Loss has
occurred as to the Vessel or the safety or welfare of Mortgagor's employees on
the Vessel is endangered), will not engage in any unlawful trade, violate any
law or carry any cargo that will expose the Vessel to penalty, forfeiture or
capture and will not do, or suffer or permit to be done, anything which can or
may injuriously affect the documentation of the Vessel under the existing laws
and regulations of the Republic of Panama or the United States of America.
Without limiting the generality of the foregoing, the Mortgagor shall not
charter the Vessel to, or permit the Vessel to serve under any contract with, a
person included within the definition of (i) "national" of a "designated foreign
country," or "specially designated national" of a "designated foreign county,"
in the Foreign Assets Control Regulations or the Cuban Assets Control
Regulations of the United States Treasury Department, 31 C.F.R. Parts 500 and
515, in each case as amended, (ii) "Government of Libya," "entity of the
Government of Libya" or "Libyan entity" in the Libyan Sanctions Regulations of
the United States Treasury Department, 31 C.F.R. Part 550, as amended, or (iii)
"Government of Iraq," "entity of the Government of Iraq" or "Iraqi Government
entity" in the Iraqi Sanctions Regulations, 31 C.F.R. Part 575, as amended, all
within the meaning of said Regulations or of any regulations, interpretations or
rulings issued thereunder, or engage in any transaction that violates any
provision of said Regulations or that violates any provision of the Iranian
Transactions Regulations, 31 C.F.R. Part 560, as amended, the Transaction
Control Regulations, 31 C.F.R. Part 505, as amended, the Foreign Assets Control
Regulations, 31 C.F.R. Part 500, as amended, or Executive Orders 12810 and
12831, or call at a Cuban port to load or discharge cargo or to effect repairs
on the Vessel. Furthermore, the Mortgagor shall keep the Vessel at all times in
United States territorial waters in the Gulf of Mexico or in the Gulf of Mexico
on or above the outer Continental Shelf of the United States and as set forth in
Section 1 of the Drilling Order.
Section 2.5 Claims, Taxes, Fees. etc. Mortgagor will pay and discharge
or cause to be paid and discharged prior to delinquency, all claims against, and
fees, taxes, assessments, governmental charges, fines and penalties imposed on,
the Vessel, its cargoes or any income therefrom; provided, that nothing in this
Section 2.5 shall require Mortgagor to pay any such claim, fee, tax, assessment,
governmental charge, fine or penalty so long as the validity thereof shall be
contested by it in good faith and by appropriate proceedings, and, provided,
further, that such contest shall not subject the Vessel, or any part thereof, to
arrest, attachment, forfeiture or loss or subject the Mortgagee or any Lender to
the risk of any civil or criminal liability.
Section 2.6 Liens. Neither Mortgagor, any charterer or subcharterer,
the master of the Vessel 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 the Vessel and Mortgagor shall not permit to exist on the Vessel any Lien
whatsoever other than the Lien of this Mortgage and the following:
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(i) Liens for wages of the crew (including wages of a master
to the extent provided by law, "Master's Wages"), general average and salvage
(including contract salvage) which shall not have been due and payable for
forty-five (45) days after termination of a voyage or which shall then be
contested by Mortgagor in good faith and by appropriate proceedings; provided
that such contest shall not subject the Vessel to arrest, attachment, forfeiture
or loss or subject the Mortgagee or any Lender to the risk of any civil or
criminal liability;
(ii) Liens for wages of the crew (including Master's Wages)
and salvage (including contract salvage) which are either unclaimed or covered
by insurance;
(iii) Liens incident to current operations of Mortgagor in the
ordinary course of business (except for wages of the crew including Master's
Wages and salvage) or liens covered by insurance and any deductible applicable
thereto;
(iv) Liens for repairs the payment for which is either not
overdue or is being contested by Mortgagor in good faith and by appropriate
proceedings; provided that such contest shall not subject the Vessel to arrest,
attachment, forfeiture or loss or subject the Mortgagee or any Lender to risk of
any civil or criminal liability;
(v) Liens arising by reason of an actual or constructive total
loss or an agreed or compromised total loss of the Vessel;
(vi) Liens permitted by the Trust Indenture;
provided that the Liens stated to be permitted by the foregoing subparagraphs
(i) through (iv) shall, unless they constitute a Lien for damage arising out of
tort, for wages of a stevedore when employed directly by Mortgagor, master,
ship's husband, or agent, for wages of the crew (including Master's Wages), for
general average, or for salvage (including contract salvage), be permitted only
to the extent such Liens are either accrued but not yet due or are subordinate
to the Lien of this Mortgage. Nothing contained in this Section 2.6 constitutes
a waiver by Mortgagee of Mortgagee's preferred status. If any such Lien is
placed on the Vessel which is not subordinate to the Lien of this Mortgage,
Mortgagor will promptly after becoming aware of such Lien notify Mortgagee.
Section 2.7 Notice of Mortgage. Mortgagor will at all times carry on
board the Vessel (with the ship's papers) a certified copy of this Mortgage and
any amendments and supplements hereto and any assignments hereof, and will
exhibit or cause to be exhibited the same to any Person having business with the
Vessel which might give rise to a Lien upon the Vessel or to the sale,
conveyance, mortgage or lease thereof and, on demand, to any representative of
Mortgagee. Mortgagor will also place and keep prominently displayed on the
Vessel a framed printed notice in plain type of such size that the paragraph of
reading matter shall cover a space of not less than six inches wide by nine
inches high (or such other dimensions as may be required by law) reading as
follows:
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"NOTICE OF MORTGAGE
This Vessel is owned by Noble Drilling (Xxxx Xxxxxx) Inc. and is
subject to a First Naval Mortgage in favor of Chase Bank of Texas,
National Association, as Indenture Trustee, as Mortgagee, a certified
copy of which Mortgage is kept with this Vessel's papers. Under the
terms of said Mortgage, neither the owner, any charterer or
subcharterer, the master of this Vessel nor any other person has any
right, power or authority to create, incur or permit to be placed or
imposed upon this Vessel any lien whatsoever other than the lien of
said Mortgage, liens for wages, general average or salvage, and certain
other liens permitted by the provisions of said Mortgage."
Section 2.8 Libel or Attachment. If a libel or any similar legal action
is filed against the Vessel or if the Vessel shall be attached, levied upon or
taken into custody by virtue of any proceeding in any court or tribunal,
Mortgagor will promptly notify Mortgagee thereof by telegram, cable or
facsimile, confirmed by letter addressed to Mortgagee, and within thirty (30)
days after any such libel (other than (i) a libel involving claims less than
$2,500,000 or (ii) a libel involving claims equal to or in excess of $2,500,000
and where the Mortgagee has not received a reservation of rights notice, or
similar communication from its insurance carrier contesting or denying
coverage), levy, attachment or taking into custody, Mortgagor will cause the
Vessel to be released and will promptly notify Mortgagee of such release in the
manner aforesaid. In the event that the Vessel shall not be released within
fifteen (15) days after such libel, levy, attachment or action to take the
Vessel into custody, or at any time Mortgagee receives a Notice of Entitlement
to Terminate with respect to any such libel, levy, attachment, or action to take
the Vessel into custody, Mortgagor does hereby authorize and empower Mortgagee,
in the name of Mortgagor, or its successor or assigns, to apply for and receive
possession of and to take possession of the Vessel with all the rights and
powers that Mortgagor, or its successors or assigns, might have, possess or
exercise in any such event; and this power of attorney shall be irrevocable and
may be exercised not only by Mortgagee hereinabove named but also by any one
such appointee or the appointees of Mortgagee, with full power of substitution,
to the same extent as if the said appointee or appointees had been named as one
of the attorneys above named by express designation.
Section 2.9 Maintenance of Vessel. Except as to such period as (i) the
use or title of the Vessel has been taken, requisitioned or chartered by a
Governmental Authority, (ii) there has been actual or constructive total loss or
an agreed or compromised total loss of the Vessel, or (iii) there has been any
other partial loss or damage with respect to the Vessel and Mortgagor shall be
in compliance with its obligations under Sections 4.2(c) and 7.3(c) of the Trust
Indenture, Mortgagor will, at all times and without cost or expense to
Mortgagee, maintain and preserve, or cause to be maintained and preserved, the
Vessel in good running order and repair, so that the Vessel shall be tight,
staunch, strong and well and sufficiently tackled, appareled, furnished,
equipped and in every respect seaworthy and in first class order and operating
condition and in full compliance with and able to perform all operations under
the Shell Contract; and otherwise in compliance with the provisions of the Trust
Indenture.
Section 2.10 Inspection. Weather permitting, Mortgagor will permit
Mortgagee, any Lender or its representative to visit and inspect the Vessel,
under the Mortgagor's guidance, to
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examine all of its books of account, records, reports and other papers, to make
copies and extracts therefrom and to discuss its affairs, finances and accounts
with its officers, employees, and independent public accountants (and by this
provision the Mortgagor authorizes said accountants to discuss with Mortgagee or
any Lender the finances and affairs of the Mortgagor) all at such reasonable
time, upon reasonable notice and as often as may be reasonably requested;
provided that the Mortgagor shall not be required to pay or reimburse any Lender
for expenses which such Lender may incur in connection with any such visitation
or inspection, except that if such visitation or inspection is made during any
period when an Indenture Default or an Indenture Event of Default shall have
occurred and be continuing, the Mortgagor agrees to reimburse such Lender for
all such expenses promptly upon demand.
Section 2.11 Sale or Other Disposition of Vessel. Except as allowed in
the Trust Indenture, Mortgagor will not sell, mortgage, transfer or in any other
way dispose of all or any part of the Vessel without the prior written consent
of Mortgagee.
Section 2.12 Notice. Mortgagor shall notify the Mortgagee forthwith by
facsimile thereafter confirmed by letter of:
(a) any casualty event in excess of $250,000 with respect to the
Vessel; and
(b) any occurrence in respect of the Vessel that is or is likely, by
the passing of time or otherwise, to become an Event of Loss; and
(c) any material requirement or recommendation made by any insurer or
classification society or by any competent authority which is not complied with
within a reasonable time; and
(d) any arrest, governmental detention, or attachment of the Vessel or
the assertion or purported assertion of any lien against the Vessel; and
(e) any intended dry docking of the Vessel, as to which the Mortgagor
shall give the Mortgagee 30 days' prior notice, provided, that in the event of
any emergency dry docking of the Vessel, the Mortgagor shall promptly notify the
Mortgagee; and
(f) any intended deactivation or lay-up of the Vessel.
Section 2.13 Insurance.
(a) All Risk Property Insurance. Mortgagor shall, at its own
expense, keep the Vessel insured, in lawful money of the United States, against
all such risks (including without limitation, hull and machinery/increased
value, protection and indemnity risk, pollution liability, war risks and, when
laid up, port risk insurance as well as such excess policies over and above
protection and indemnity and general liability coverage which shall represent
collective limits of not less than $400,000,000), in such form and with such
insurance companies or underwriters as required under Section 2.13(f) as shall
be at least as protective as insurance maintained by prudent owners of vessels
and equipment similar to the Vessel, engaged in international contract offshore
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oil and gas operations, and in any event all as reasonably acceptable to
Mortgagee and in compliance with the Shell Contract. Without limiting the
generality of the foregoing, with respect to hull and machinery/increased value
insurance, including war risk, the Mortgagor shall insure the Vessel for an
amount which is at least equal to the Obligations plus $250,000. Such insurance
shall cover marine and war risk perils, on hull and machinery, with per
occurrence deductibles not in excess of $250,000 and shall be maintained in the
broadest forms available in the American and British insurance markets. The
Mortgagor shall maintain protection and indemnity (or its equivalent) insurance,
including war risk protection and indemnity (or its equivalent) coverage in an
amount not less than $400,000,000. The Mortgagor shall maintain coverage against
pollution liability in an amount not less than $400,000,000 (or such greater
amount as may be required from time to time under Oil Pollution Act of 1990 or
other environmental laws). All of the foregoing insurance shall have a per
occurrence deductible not to exceed $250,000 and be placed through such
underwriters or associations reasonably acceptable to the Mortgagee. The Vessel
shall not operate in or proceed into any area then excluded by trading
warranties under its marine or war risk policies (including protection indemnity
or its equivalent) without satisfying the conditions of the relevant policies,
evidence of which shall be furnished to the Mortgagee.
(b) Liability; Workers' Compensation. Mortgagor shall maintain
at all times such worker's compensation, employer's liability, and longshoreman
and harbor worker's insurance as shall be required by applicable law. Mortgagor
shall also maintain public liability insurance together with umbrella liability
coverage as insured against by prudent owners of vessels and equipment similar
to the Vessel. Such policies shall provide that any loss under such insurance
may be paid directly to the entity to whom any liability covered by such
policies has been incurred.
(c) Payment Provisions. All payments made under policies of
insurance maintained under this Section shall be applied as set forth in Section
4.2 of the Trust Indenture.
(d) Constructive Total Loss. In the case of an Event of Loss
that is a constructive total loss of the Vessel, Mortgagee shall have the right
(but only with prior written consent of Mortgagor unless an Indenture Event of
Default has occurred and is continuing) to join in Mortgagor's claim for a
constructive total loss of the Vessel, and if both (i) such claims are accepted
by all underwriters under all policies then in force as to the Vessel and (ii)
payment in full is made in cash under such policies to Mortgagee in an amount at
least equal to the then outstanding amount of the Obligations, then Mortgagee
shall have the right to abandon the Vessel to the underwriters under such
policies, free from the Lien of this Mortgage.
(e) Agreed Total Loss. Mortgagee shall not have the right to
enter into an agreement or compromise providing for an agreed or compromised
total loss of the Vessel without the prior written consent of Mortgagor unless
an Indenture Event of Default has occurred and is continuing. If Mortgagor shall
have given its prior consent thereto, or an Indenture Event of Default has
occurred and is continuing, Mortgagee shall have the right in its discretion to
enter into an agreement or compromise providing for an agreed or compromised
total loss of the Vessel, provided the same is agreed to by underwriters under
all applicable policies.
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(f) Insurers. All insurance required under this Section 2.13
shall be placed and kept with such insurance companies, Lloyd's Syndicates,
underwriters' associations, clubs or underwriting funds as are reputable,
generally recognized within the industry, and (i) in the case of hull and
machinery insurance, rated by either Standard & Poors Rating Services, a
division of the McGraw Hill Companies, Inc. ("S&P") or Xxxxx'x Investors
Services, Inc. ("Moody's) with at least the equivalent to an S&P rating of BBB
(and with at least 75% of the companies, determined by dollar amount of policy
coverage, rated by S&P or Moody's with at least the equivalent to an S&P rating
of A) or, if not rated by S&P or Moody's then rated "excellent" or better by
A.M. Best, and (ii) in the case of protection and indemnity risk insurance,
rated by either S&P or Moody's with at least the equivalent to an S&P rating of
BBB.
(g) Taking by United States. During the continuance of a
taking, requisition or charter of the use of the Vessel by any governmental body
of the United States of America, the provisions of this Section 2.13 shall be
deemed to have been complied with in all respects as to the Vessel if the United
States Government or any such governmental body shall have agreed (i) to
reimburse Mortgagee and Mortgagor for loss or damage resulting from the risks
indicated in paragraphs (a) and (b) of this Section 2.13, or (ii) that Mortgagee
and Mortgagor shall be entitled to just compensation therefor. In the event of
any taking, requisition, charter or loss of the Vessel contemplated by this
paragraph (g), Mortgagor shall promptly furnish to Mortgagee a sworn certificate
of an officer of Mortgagor stating that such taking, requisition, charter or
loss has occurred and, if there shall have been a taking, requisition or charter
of the Vessel, that the United States Government or governmental body has agreed
(i) to reimburse Mortgagor for loss or damage resulting from the risks indicated
in the above-mentioned paragraphs (a) and (b) or (ii) that Mortgagor or
Mortgagee, as the case may be, is entitled to just compensation therefor.
(h) Mortgage Provisions. All insurance required under this
Section 2.13 shall be taken out in the name of Mortgagor or on its behalf by an
Affiliate of Mortgagor. Mortgagee and each Lender shall be named as an
additional insured under all liability policies (other than workers'
compensation and similar insurance), and Mortgagee shall be named as the sole
loss payee under all physical damage policies with respect to the Vessel. All
policies for such insurance shall also provide that (i) there shall be no
recourse against Mortgagee (or its assignee) or any Lender for the payment of
premiums or commissions, (ii) if such policies provide for the payment of club
calls, assessments or advances, there shall be no recourse against Mortgagee (or
its assignee) or any Lender for the payment thereof. All policies shall provide
that the insurers shall provide to Mortgagee (or its assignee) and each Lender
30 days prior notice of any material change in the coverage of such insurance as
well as ten (10) days prior written notice of any cancellation of such insurance
in the event of non-payment of premiums and seven (7) days prior written notice
of any cancellation of such insurance for war risk.
(i) Compliance. Mortgagor shall not do any act, nor permit any
act to be done, whereby any insurance required by this Section 2.13 shall or may
be suspended, impaired or defeated, or permit the Vessel to engage in any
voyage, to engage in any activity or to carry any cargo not permitted under the
policies of insurance then in effect without first procuring comparable
insurance for such voyage, activity or the carriage of such cargo.
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(j) Policies. Mortgagor, upon execution of this Mortgage,
shall deliver to Mortgagee certificates of insurance, evidencing the insurance
maintained under this Section 2.13. Mortgagor, upon the request of Mortgagee,
will promptly deliver to Mortgagee true copies of such policies.
(k) Opinion and Certificates. At such times as Mortgagee may
reasonably request, Mortgagor shall furnish or cause to be furnished to
Mortgagee a detailed certificate or opinion (signed by a reputable insurance
broker) as to the insurance maintained by Mortgagor pursuant to this Section
2.13, specifying the respective policies of insurance covering the same and
attaching certificates of confirmation evidencing the same and stating with
regard to the insurance maintained by Mortgagor pursuant to this Section 2.13
the amounts, deductibles, and the risks against which such insurance is issued.
(l) Obligation to Collect. Mortgagor shall, at no cost or
expense to Mortgagee, have the duty and responsibility to make all proofs of
loss and take any and all other steps necessary as a prudent owner or as
reasonably directed by Mortgagee to effect collections from underwriters for any
loss under any insurance on or in respect of the Vessel or the operation
thereof.
Section 2.14 Change of Flag, Port of Documentation or Name. Mortgagor
will not change or transfer the flag, port of documentation or the name of the
Vessel, except in strict compliance with Section 7.3 of the Trust Indenture.
ARTICLE III
REMEDIES; APPLICATION OF PROCEEDS
Section 3.1 Sale, Etc. If an Event of Default shall have occurred and
be continuing, Mortgagee may, to the fullest extent permitted by and in
accordance with applicable law:
(a) exercise all the rights and remedies in foreclosure and otherwise
given to mortgagees by the laws of the Republic of Panama, and by the applicable
laws of any other applicable jurisdiction;
(b) bring suit at law, in equity or in admiralty or initiate and
prosecute such other judicial, extrajudicial, or administrative proceedings as
it may consider appropriate to recover any and all sums due, or declared due, in
respect of the Obligations, with the right to enforce payment of said sums
against any assets of Mortgagor, whether they are covered by this Mortgage or
otherwise;
(c) to the extent permitted by and in accordance with any applicable
law, take possession of the Vessel, with or without legal proceedings, at any
place where it may be found, and Mortgagor or any Person in possession of the
Vessel, forthwith upon request by Mortgagee, as mortgage creditor, shall deliver
possession to Mortgagee on demand of Mortgagee, and
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Mortgagee shall have the right, subject to applicable law, without being
responsible for loss or damage to lay up, hold, charter, lease, operate or
otherwise use the Vessel for such period and under such conditions as it may
deem most expedient for its interest, accounting only for net profits, if any,
arising from such use and charging against all receipts from such use or from
the sale of the Vessel by court proceedings or pursuant to subsection (d) below,
all costs, expenses, charges, damages or losses by reason of such use; and if at
any time Mortgagee shall avail itself of the right herein given to it to take
the Vessel and shall take it, Mortgagee shall have the right to dock the Vessel
at any dock, pier or other premises owned or leased by Mortgagor without charge,
or at any other place at the cost and expense of Mortgagor;
(d) to the extent permitted by and in accordance with any applicable
law, sell the Vessel at public or private sale, by sealed bids or otherwise, on
such terms and conditions as Mortgagee deems best, free of any claim, lien,
commitment or encumbrance, regardless of the nature thereof, in favor of
Mortgagor and, except as provided by law, any other person, upon advance notice
of ten (10) consecutive days published in any newspaper authorized to publish
legal notices of that kind in the port of registry and the place of sale of the
Vessel and by sending notice of such sale at least twenty (20) days prior to the
date fixed for such sale, by telegraph, cable, telefax or telex, confirmed by
mail, to Mortgagor. In the event that the Vessel shall be offered for sale by
private sale, no newspaper publication of notice shall be required, nor notice
of adjournment of sale. Sale may be held at such place and at such time as
Mortgagee by notice may have specified, or may be adjourned by Mortgagee from
time to time by announcement at the time and place appointed for such sale or
for such adjourned sale, and without further notice or publication Mortgagee may
make any such sale at the time and place to which the same shall be so
adjourned; and any sale may be conducted without bringing the Vessel to the
place designated for such sale and in such manner as Mortgagee may deem to be
for its best advantage, and Mortgagee may become the purchaser at any public
sale, and shall have the right to credit on the purchase price any and all sums
of money due hereunder or under any other Credit Document. Without limiting the
generality of the foregoing, Mortgagee shall be entitled to exercise all the
rights and remedies available to it under Articles 1527 and 1527-A of the Code
of Commerce of the Republic of Panama;
(e) manage, insure, maintain and repair the Vessel and charter, employ,
sail or lay up the Vessel in such manner, upon such terms and for such period as
the Mortgagee deems reasonably expedient; and for the purposes aforesaid the
Mortgagee shall be entitled to do all acts and things reasonably incidental or
conducive thereto and in particular to enter into such arrangements respecting
such Vessel, and the insurance, management, maintenance, repair, classification,
chartering and employment of such Vessel, in all respects as if the Mortgagee
were the owner of such Vessel and without being responsible for any loss thereby
incurred;
(f) recover from the Mortgagor on demand any liabilities, losses and
reasonable expenses as may be incurred by the Mortgagee in or about the exercise
of the power vested in the Mortgagee hereunder;
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(g) generally, recover from the Mortgagor on demand any liabilities,
losses and reasonable expenses incurred by the Mortgagee in or about or
incidental to the exercise by it of any of the powers aforesaid;
(h) not be required to have the Vessel marshaled (upon any sale of the
Vessel) or be required to realize on any other collateral prior to its
realization on the Vessel; and
(i) exercise any other rights it may have under applicable law or any
other Credit Document.
As used in this Mortgage, "Event of Default" shall mean the occurrence
of an Indenture Event of Default under the Trust Indenture.
Section 3.2 Finality of Sale. A sale of the Vessel made in pursuance of
this Mortgage, whether under the power of sale hereby granted or any judicial
proceedings, shall operate to divest all right, title and interest of any nature
whatsoever of Mortgagor therein and thereto, and shall bar Mortgagor, 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 application
of the proceeds thereof.
Section 3.3 Powers and Rights of Mortgagee Upon Notice of Default.
During the occurrence and continuance of an Event of Default, Mortgagee shall
have the following powers and rights:
(a) Sale. Mortgagor does hereby irrevocably appoint Mortgagee
and its successors and assigns the true and lawful attorney of Mortgagor, in its
name and stead, for the purpose of Sections 3.1 and 3.2, to make all necessary
transfers of the Vessel, and for that purpose Mortgagee shall execute all
necessary instruments of assignment and transfer (including bills of sale),
Mortgagor hereby ratifying and confirming all that its said attorney shall
lawfully do by virtue hereof. Nevertheless, Mortgagor shall, if so requested by
Mortgagee, ratify and confirm any sale of the Vessel by executing and delivering
to the purchaser thereof such proper bills of sale, conveyances, instruments of
transfer and releases as may be designated in such request.
(b) Revenues and proceeds of Vessel; Prior Liens.
(i) Mortgagee is hereby irrevocably appointed
attorney-in-fact of Mortgagor, with the power, among other things, so
long as an Event of Default has occurred and is continuing, in the name
of Mortgagor 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 Vessel, and 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 in respect of the Vessel or in respect of any insurance thereon
from any person whomsoever, and to make, give and execute in the name
of Mortgagor
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acquittances, receipts, releases or other discharges for the same,
whether under seal or otherwise, and to endorse and accept in the name
of Mortgagor all checks, notes, drafts, warrants, agreements and all
other instruments in writing with respect to the foregoing, Mortgagor
hereby confirming and ratifying the same.
(ii) So long as an Event of Default has occurred and
is continuing, Mortgagee is hereby irrevocably authorized to pay or
furnish indemnity in the proper amounts against any Liens which have
or may (in the reasonable opinion of Mortgagee) have priority over the
Lien of this Mortgage and which are not permitted under this Mortgage
or the Trust Indenture.
(c) Additional Rights. Mortgagor covenants and agrees that in
addition to any and all other rights, powers and remedies elsewhere in this
Mortgage granted to and conferred upon Mortgagee, Mortgagee in any suit to
enforce any of its rights, powers or remedies shall be entitled as a matter of
right and not as a matter of discretion (i) to seek the appointment of a
receiver or receivers of the Vessel and any receiver or receivers so appointed
shall have full right and power to use and operate the Vessel as shall be
ordered by any court having jurisdiction, (ii) to a decree ordering and
directing the sale and disposal of the Vessel, and Mortgagee may become the
purchaser at such sale and shall have the right to credit against the purchase
price any and all sums of money due hereunder, and (iii) to have full rights and
remedies at law and in equity including, without limitation, specific
performance of the covenants hereof including, without limitation, the following
paragraph of this Section 3.3(c).
Mortgagor further covenants and agrees that if (i) an Indenture Event
of Default under Section 6.1(a), (d), (e), (f), (j), (l) or (m) has occurred and
is continuing or (ii) any other Indenture Event of Default has occurred and is
continuing which has resulted in acceleration of the maturity of the
Obligations, then Mortgagor shall, upon the request of Mortgagee and at the
direction of Majority Holders, immediately move the Vessel to such United States
port or other location within the territorial waters of the United States
subject to the in rem admiralty jurisdiction of the United States federal courts
as Mortgagee may designate in its sole and absolute discretion.
(d) Notice to Mortgagor. Mortgagee shall notify Mortgagor
promptly after taking any action permitted by this Section 3.3.
Section 3.4 Restoration of Position. In case Mortgagee shall have
proceeded to enforce any right, power or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to Mortgagee, then and in every such case Mortgagor and Mortgagee shall, subject
to any determination in such proceeding, 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 Mortgagee
shall, subject to any determination in such proceeding, continue as if no such
proceedings had been taken.
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Section 3.5 Application of Proceeds. The proceeds of any sale and net
earnings derived from the operation, use, charter, or any other employment of
the Vessel by Mortgagee, as mortgage creditor, and within any of the powers and
authority above given, as well as the proceeds of any judgment which Mortgagee
may obtain by reason of the breach or failure to perform any of the terms of
this Mortgage, as well as the proceeds of any claim for damage received by
Mortgagee while exercising the powers and the authorities above given shall be
applied as follows:
(i) to the payment of all charges and expenses, including the
costs of any public or private sale or sales, the cost of replevying or
taking possession of the Vessel which may be incurred or paid out by
Mortgagee, as mortgage creditor, and the expenses and reasonable
administrator and external attorneys' fees incurred on foreclosure or
in the protection of the rights and interests of Mortgagee founded upon
this Mortgage;
(ii) to pay or to furnish indemnity in the proper amounts
against any Liens which have or may (in the reasonable opinion of
Mortgagee) have priority over the Lien of this Mortgage and which are
not Liens permitted under this Mortgage; and
(iii) to deliver to the Mortgagee for application as provided
in the Trust Indenture.
Section 3.6 Waiver. (a) To the extent now or at any time hereafter
enforceable under applicable law, the Mortgagor covenants that it will not at
any time insist upon or plead, or in any manner whatsoever claim or take any
benefit or advantage of, any stay or extension law now or at any time hereafter
in force, nor claim, take nor insist upon any benefit or advantage of or from
any law now or hereafter in force providing for the valuation or appraisement of
the Vessel or any part thereof, prior to any sale or sales thereof to be made
pursuant to any provision herein contained, or to the decree, judgment or order
of any court of competent jurisdiction, nor, after such sale or sales, claim or
exercise any right under any statute now or hereafter made or enacted by any
state or otherwise to redeem the property so sold or any part thereof, and
hereby expressly waives for itself and on behalf of each and every Person, all
benefit and advantage of any such law or laws, and covenants that it will not
invoke or utilize any such law or laws or otherwise hinder, delay or impede the
execution of any power herein granted and delegated to the Mortgagee, but will
suffer and permit the execution of every such power as though no such law or
laws had been made or enacted.
(b) The Mortgagor waives any right to require the Mortgagee or
the Lenders to proceed against any other Person, or to exhaust any other
Collateral or other security for the obligations secured hereby, or to have any
other Person joined with the Mortgagor in any suit arising out of the
Obligations or the other Credit Documents, or to pursue any other remedy in the
Mortgagee's or the Lenders' power. The Mortgagor further waives any and all
notice of acceptance of this Mortgage by any other Person directly or indirectly
liable for such obligations from time to time. The Mortgagor further waives any
defense arising by reason of any disability or other defense of any other Person
or by reason of the cessation from any cause whatsoever of the liability of any
other Person liable for the Obligations secured hereby. Until all of such
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Obligations shall have been paid in full, the Mortgagor shall have no right to
subrogation and the Mortgagor waives the right to enforce any remedy which the
Mortgagee or the Lenders have or may hereafter have against any other Person
liable for such obligations, and the Mortgagor waives any benefit of any right
to participate in any security whatsoever now or hereafter held by the Mortgagee
or the Lenders. The Mortgagor authorizes the Mortgagee and the Lenders, without
notice or demand and without any reservation of rights against the Mortgagor and
without affecting the Mortgagor's liability hereunder or on the obligations
secured hereby, from time to time to (a) take or hold any Property other than
the Collateral from any other Person as security for such obligations, and
exchange, enforce, waive and release any or all of such Property, (b) apply such
Property and direct the order or manner of sale thereof as the Mortgagee and the
Lenders may in their discretion determine, and (c) renew, extend for any period,
accelerate, modify, compromise, settle or release any of the obligations of any
other Person in respect of the obligations secured hereby or other security for
such obligations.
ARTICLE IV
GENERAL POWERS OF MORTGAGEE
Section 4.1 General Powers of Mortgagee.
(a) Arrest or Detention of Vessel. In the event that the
Vessel shall be arrested or detained by a marshal or other officer of any court
of law, equity or admiralty jurisdiction in any country or nation of the world
or by any government or other entity and shall not be released from arrest or
detention within fifteen (15) days from the date of arrest or detention or upon
Mortgagee's receipt of a Notice of Entitlement to Terminate as a result of such
detention or arrest, Mortgagor does hereby authorize and empower Mortgagee, in
the name of Mortgagor, or its successors or assigns, to apply for and receive
possession of and to take possession of the Vessel with all the rights and
powers that Mortgagor, or its successors or assigns, might have, possess or
exercise in any such event; and this power of attorney shall be irrevocable and
may be exercised not only by Mortgagee but also by its appointee or appointees,
with full power of substitution, to the same extent as if the said appointee or
appointees had been named as the attorney above named by express designation.
(b) Suits. Mortgagor also authorizes and empowers Mortgagee or
its appointees or any of them to appear in the name of Mortgagor, its successors
or assigns, in any court of any country or nation of the world where a suit is
pending against the Vessel because of or on account of any alleged Lien against
the Vessel from which the Vessel has not been released in accordance with the
terms of this Mortgage and to take such proceedings as to it may seem proper
towards the defense of such suit and the discharge of such Lien.
(c) Reimbursement of Expenses. If Mortgagor fails to perform
any obligation or covenant under this Mortgage, Mortgagee shall have the right,
but not the obligation, to perform or take such actions to comply with the terms
of this Mortgage, and all amounts reasonably expended in connection with such
conduct shall be a demand obligation of Mortgagor
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owing to Mortgagee at the Default Rate specified in the Trust Indenture and
shall be secured by the Lien of this Mortgage.
ARTICLE V
SUNDRY PROVISIONS
Section 5.1 Release. If the Obligations shall have been fully satisfied
and discharged to the satisfaction of the Trustee then this Mortgage and the
estate and rights hereunder shall cease, determine, and become null and void;
and Mortgagee, on the request of Mortgagor and at Mortgagor's cost and expense,
shall forthwith cause satisfaction and discharge of this Mortgage to be entered
upon its and other appropriate records and shall execute and deliver to
Mortgagor such instruments as may be necessary in Mortgagor's reasonable opinion
to duly acknowledge the satisfaction and discharge of this Mortgage. Upon any
termination of this Mortgage or release of the Vessel as permitted by the Trust
Indenture, Mortgagee will, at the expense of Mortgagor, execute and deliver to
Mortgagor such documents and take such other actions as Mortgagor shall
reasonably request to evidence the termination of this Mortgage or the release
of the Vessel, as the case may be.
Section 5.2 Right of Peaceful Enjoyment. During the term of this
Mortgage and so long as no Event of Default shall have occurred and be
continuing, Mortgagor shall have full and peaceful enjoyment, use, right to
possession and control of the Vessel subject to the terms of the Credit
Documents.
Section 5.3 Cumulative Remedies; No Waiver. Each and every power and
remedy herein given to Mortgagee shall be cumulative and shall be in addition to
every other power and remedy herein or in any other Credit Document 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 given in any other Credit
Document or otherwise existing may be exercised from time to time and as often
and in such order, or in the alternative as may be deemed expedient by
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 power or remedy. No course of dealing on the
part of Mortgagee, its officers, employees, consultants or agents, nor any delay
or omission by Mortgagee in the exercise of any right or power or in the
pursuance of any remedy shall operate as a waiver of any such right, power or
remedy.
Section 5.4 Further Assurances. In the event that this Mortgage, or any
provisions hereof, 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 Mortgagee shall be deemed by Mortgagee for any
reason insufficient to carry out the rights and powers granted to Mortgagee
herein, then, from time to time, Mortgagor will do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, such other
and further assurances and documents as in the opinion of Mortgagee may
reasonably be required in order to more effectively subject the
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Vessel to the Lien of this Mortgage or more effectively subject the Vessel to
the performance of the terms and provisions of this Mortgage, or to enable this
Mortgage to continuously enjoy the status of a first preferred ship mortgage.
Section 5.5 Survival of Agreements. All representations, warranties,
covenants and agreements herein contained or made in writing in connection with
this Mortgage shall survive the execution of this Mortgage and shall continue in
full force and effect until all sums secured hereby shall have been paid in
full, and the same shall bind and inure to the benefit of the respective
successors and assigns of Mortgagor and Mortgagee.
Section 5.6 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when actually delivered or in the case
of facsimile transmission, when received and telephonically confirmed, addressed
as follows or to such other address as may be hereafter notified by the
respective parties hereto or any assignee thereof or successor thereto:
Mortgagor: Noble Drilling (Xxxx Xxxxxx) Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile No. 000-000-0000
Attention: President
Mortgagee: Chase Bank of Texas, National Association
000 Xxxxxx Xxxxxx, Xxxxx 0000
00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Corporate Trust Department
Section 5.7 Counterparts. 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 5.8 Section Headings. The section headings used in this
Mortgage are for convenience of reference only and are not to affect the
construction of or be taken into consideration in interpreting this Mortgage.
SECTION 5.9 GOVERNING LAW. THIS MORTGAGE, AND ALL OF THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER, AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, SHALL BE GOVERNED BY THE LAWS OF THE REPUBLIC OF PANAMA AND, BY THE
MARITIME LAWS OF THE UNITED STATES OF AMERICA OR THE STATE OF NEW YORK AS MAY BE
APPLICABLE.
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Section 5.10 Jurisdiction.
(a) Any legal action or proceeding with respect to this Mortgage may be
brought in the courts of the United States for the Southern District of New York
and the Mortgagor hereby accepts for itself and its property, generally and
unconditionally, the non-exclusive jurisdiction of such court. The Mortgagor
further irrevocably consents to the service of process out of such court in any
such action or proceeding in the manner provided for in the Trust Indenture.
Nothing herein shall affect the right of the Mortgagee to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Mortgagor in any other jurisdiction.
(b) Without prejudice to the generality of Clause 5.10(a), the
Mortgagee shall have the right to arrest and take action against the Vessel at
whatever place such Vessel shall be found lying and for the purpose of any
action which the Mortgagee may bring before the courts of such jurisdiction or
other judicial authority and for the purpose of any action which the Mortgagee
may bring against such Vessel, any writ, notice, judgment or other legal process
or documents may (without prejudice to any other method of service under
applicable law) be served upon the master of such Vessel (or upon anyone acting
as the master) and such service shall be deemed good service on the Mortgagor
for all purposes.
(c) Each of the parties hereto stipulates that, when the Vessel is
located on the Outer Continental Shelf within the jurisdiction of the United
States Federal District Courts under 43 U.S.C. ss.ss.1331(1) and 1349(b)(1), (i)
that the United States Federal District Courts shall have "in rem" admiralty
jurisdiction over the Vessel and (ii) that the Vessel is present within the
territorial jurisdiction of said courts for all purposes, including the
enforcement of any maritime liens or other remedies hereunder.
Section 5.11 Amendments and Waivers. None of the terms or provisions of
this Mortgage may be waived, amended, supplemented or otherwise modified except
if made in compliance with the terms and provisions of the Trust Indenture.
Section 5.12 Termination. The grant of the Liens hereunder and all of
Mortgagee's rights, powers and remedies in connection therewith, shall unless
otherwise provided in the Trust Indenture or this Mortgage, remain in full force
and effect until payment in full of (A) the Notes under the terms thereof or of
the Trust Indenture, and (B) all Obligations then due and owing under the Trust
Indenture, the Notes and the other Credit Documents. Upon the payment in full of
(A) the Notes under the terms thereof or of the Trust Indenture, and (B) all
Obligations then due and owing under the Trust Indenture, the Notes and the
other Credit Documents, Mortgagor shall be entitled to the return, upon its
request and at its expense, of the Vessel free and clear of all liens created by
this Mortgage.
Section 5.13 Trust Indenture. This Mortgage is issued pursuant to the
terms, conditions and provisions of the Trust Indenture.
Section 5.14 Severability. In the event that any provision of this
Mortgage or the Trust Indenture or the Notes shall be deemed invalid or
unenforceable by reason of any present or future
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law or any decision of any authoritative court, the validity and enforceability
of the other provisions hereof or thereof shall not be affected thereby.
Section 5.15 Power to Record. Mortgagee and Mortgagor declare that they
hereby confer a special Power of Attorney on Xxx Xxxxxxxxx P., a lawyer of
Panama, Republic of Panama, empowering him to take all necessary steps to file
and register this First Naval Mortgage in the appropriate registries of the
Republic of Panama.
[Signature Pages Begin Next Page]
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly
executed as of the day and year first above written.
MORTGAGOR: NOBLE DRILLING (XXXX XXXXXX) INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
THE STATE OF TEXAS )
)
COUNTY OF XXXXXX )
THIS INSTRUMENT was acknowledged before me on __________, 1998, by
_____________________________, ___________________________________ of Noble
Drilling (Xxxx Xxxxxx) Inc., a Delaware corporation on behalf of such
corporation, and after having first been duly authorized by said corporation to
do so.
AND THE said ___________ did further produce to me sufficient proof
that he is the duly elected ___________ of said corporation and that he was duly
authorized by said corporation to execute the foregoing Mortgage, and I the
notary hereby certify that the signature of the said ______________ on the
foregoing Mortgage was placed thereon in my presence and is therefore authentic.
------------------------------
Notary Public in and for
the State of Texas
Printed Name of Notary:
------------------------------
My Commission Expires:
------------------------------
Signature Page - 1
23
MORTGAGEE: CHASE BANK OF TEXAS, National
Association, as Indenture Trustee,
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Trust Officer
THE STATE OF TEXAS )
)
COUNTY OF XXXXXX )
THIS INSTRUMENT was acknowledged before me on __________, 1998, by
_____________________________, __________________ of Chase Bank of Texas,
National Association, a national banking association, on behalf of such
association, and after having first been duly authorized by said association to
do so.
AND THE said ___________ did further produce to me sufficient proof
that he is the duly elected ___________ of said association and that he was duly
authorized by said association to execute the foregoing Mortgage, and I the
notary hereby certify that the signature of the said ______________ on the
foregoing Mortgage was placed thereon in my presence and is therefore authentic.
------------------------------
Notary Public in and for
the State of Texas
Printed Name of Notary:
------------------------------
My Commission Expires:
------------------------------
Signature Page - 2
