Exhibit 10.13
EXHIBIT I-1
TO THE CREDIT AGREEMENT
FORM OF
FIRST PREFERRED SHIP MORTGAGE
ON MARSHALL ISLANDS FLAG VESSEL
[VESSEL]
OFFICIAL NO. [OFFICIAL NUMBER]
executed by
[SHIPOWNER],
as Shipowner
in favor of
NORDEA BANK FINLAND PLC, NEW YORK
BRANCH
as Security Trustee and Mortgagee
[CLOSING DATE]
TABLE OF CONTENTS
FIRST PREFERRED MORTGAGE
[VESSEL]
This First Preferred Ship Mortgage
made [CLOSING DATE] (this “Mortgage”), by [SHIPOWNER],
a Marshall Islands limited liability company (the
“Shipowner”), in favor of NORDEA BANK FINLAND PLC, NEW
YORK BRANCH as Security Trustee (together with its successors in
trust and assigns, the “Mortgagee”), pursuant to the
Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS:
A. The Shipowner is the sole owner
of the whole of the Marshall Islands flag vessel [VESSEL NAME],
Official Number [OFFICIAL NUMBER] of [GROSS TONS] gross tons and
[NET TONS] net tons built in [YEAR BUILT] at [YARD AND LOCATION
BUILT], with her home port at Majuro, Marshall Islands.
B. General Maritime Corporation, a
Marshall Islands corporation (the “Borrower”), the
Lenders party thereto from time to time, and Nordea Bank Finland
plc, New York Branch, as Administrative Agent and as Collateral
Agent, have entered into a Credit Agreement dated as of
October 26, 2005 (as the same may be amended, supplemented or
otherwise modified from time to time, the
“Credit Agreement”), providing for
the making of loans to the Borrower in the principal amount of up
to Eight Hundred Million United States Dollars (U.S. $800,000,000)
(the Lenders, the Administrative Agent and Collateral Agent,
collectively, the “Lender Creditors”). A copy of the
form of the Credit Agreement (without attachments) is attached
hereto as Exhibit A and made a part hereof. Except as
otherwise defined herein, capitalized terms used herein and defined
in the Credit Agreement shall be used herein as so
defined.
C. The Borrower may at any time and
from time to time enter into, or guaranty the obligations of one or
more Subsidiary Guarantors or any of their respective Subsidiaries
under, one or more Interest Rate Protection Agreements or Other
Hedging Agreements with respect to the Loans (and/or the
Commitments) with one or more Lenders or any Affiliate thereof
(each such Lender or Affiliate, even if the respective Lender
subsequently ceases to be a Lender under the Credit Agreement for
any reason, together with such Lender’s or Affiliate’s
successors and assigns, if any, collectively, the “Other
Creditors” and, together with the Lender Creditors, the
“Secured Creditors”). The estimated aggregate notional
amount of the liabilities of the Borrower under the Interest Rate
Protection Agreements or Other Hedging Agreements entered into with
respect to the Loans (and/or the Commitments) is Fifty Million
United States Dollars (U.S. $50,000,000).
D. The Shipowner is a wholly-owned
subsidiary of the Borrower.
E. The Shipowner entered into the
Subsidiaries Guaranty in favor of the Secured Creditors pursuant to
which the Shipowner has guaranteed (i) to the Lender
Creditors, all obligations of the Borrower under the Credit
Agreement and each other Credit Document to which the Borrower is a
party, and (ii) to each of the Other Creditors, all
obligations of the Borrower under each Interest
Rate Protection Agreement and each Other Hedging
Agreement entered into with respect to the Loans (and/or the
Commitments). A copy of the form of the Subsidiaries Guaranty is
attached hereto as Exhibit B and made a part hereof. The
Lenders have committed to make Loans subject to the terms and on
the conditions set forth in the Credit Agreement; the Shipowner
acknowledges that it is justly indebted to the Secured Creditors
under the Subsidiaries Guaranty.
F. In order to secure its
obligations under the Subsidiaries Guaranty according to the terms
thereof, and the payment of all other such sums that may
hereinafter be secured by this Mortgage in accordance with the
terms hereof, and to secure the performance and observance of and
compliance with all the agreements, covenants and conditions
contained herein and in the Subsidiaries Guaranty, the Shipowner
has duly authorized the execution and delivery of this First
Preferred Mortgage under Chapter 3 of the Marshall Islands Maritime
Act 1990 as amended.
G. Pursuant to the Credit Agreement,
the Mortgagee has agreed to act as Trustee for the Secured
Creditors.
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, and in
order to secure the Shipowner’s obligations under the
Subsidiaries Guaranty according to the terms thereof, and the
payment of all other sums that may hereafter be secured by this
Mortgage in accordance with the terms hereof (all such obligations
and other sums hereinafter called the “Indebtedness hereby
secured”) and to secure the performance and observance of and
compliance with all of the agreements, covenants and conditions
contained in this Mortgage and the Subsidiaries Guaranty, the
Shipowner has granted, conveyed, mortgaged, pledged, confirmed,
assigned, transferred and set over and by these presents does
grant, convey, mortgage, pledge, confirm, assign, transfer and set
over, unto the Mortgagee, and its successors and assigns, the whole
of the said vessel [VESSEL NAME], including, without being limited
to, all of the boilers, engines, machinery, masts, spars, boats,
anchors, cables, chains, fuel (to the extent owned by the
Shipowner), rigging, tackle, capstans, outfit, tools, pumps and
pumping equipment, apparel, furniture, drilling equipment,
fittings, equipment, spare parts, and all other appurtenances
thereunto appertaining or belonging, whether now owned or hereafter
acquired, and also any and all additions, improvements, renewals
and replacements hereafter made in or to such vessel or any part
thereof, including all items and appurtenances aforesaid (such
vessel, together with all of the foregoing, being herein called the
“Vessel”).
TO HAVE AND TO HOLD all and singular
the above mortgaged and described property unto the Mortgagee and
its successors and assigns, to its and to its successors’ and
assigns’ own use, benefit and behoof forever.
PROVIDED, and these presents are
upon the condition, that, if the Shipowner or its successors or
assigns shall pay or cause to be paid the Indebtedness hereby
secured as and when the same shall become due and payable in
accordance with the terms of the Subsidiaries Guaranty and this
Mortgage, and all other such sums as may hereafter become secured
by this Mortgage in accordance with the terms hereof, and the
Shipowner shall duly perform, observe and comply with or cause to
be performed, observed, or complied with all the covenants, terms
and conditions of this Mortgage and the Subsidiaries Guaranty
expressed or implied, to be performed, then this Mortgage and the
estate and rights hereunder shall cease, determine and be void,
otherwise to remain in full force and effect.
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The Shipowner, for itself, its
successors and assigns, hereby covenants, declares and agrees with
the Mortgagee and its successors and assigns that the Vessel is to
be held subject to the further covenants, conditions, terms and
uses hereinafter set forth.
The Shipowner covenants and agrees
with the Mortgagee as follows:
ARTICLE I
Representations and Warranties of the
Shipowner
Section 1. Existence: Authorization. The
Shipowner is a limited liability company duly organized and validly
existing under the laws of the Republic of the Marshall Islands and
shall so remain during the life of this Mortgage. The Shipowner has
full power and authority to own and mortgage the Vessel; has full
right and entitlement to register the Vessel in its name under the
flag of the Republic of the Marshall Islands and all action
necessary and required by law for the execution and delivery of
this Mortgage has been duly and effectively taken; and each of the
Indebtedness hereby secured and the Mortgage is and will be the
legal, valid and binding obligation of the Shipowner enforceable in
accordance with its terms.
Section 2. Title to Vessel. The Shipowner
lawfully owns and is lawfully possessed of the Vessel free from any
lien or encumbrance whatsoever other than this Mortgage, liens for
current crew’s wages and liens not yet required to be removed
under Section 7 of Article II hereof and will warrant and
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 whomsoever.
Section 3. ISM and ISPS Compliance. The
Shipowner has obtained all necessary ISM Documentation in
connection with the Vessel and is in full compliance with the ISM
Code and the ISPS Code (as such terms are defined in Section 9
of Article II.
ARTICLE II
Covenants of the Shipowner
Section 1. Payment of Indebtedness. The
Shipowner will pay or cause to be paid the Indebtedness hereby
secured and will observe, perform and comply with the covenants,
terms and conditions herein and in the Subsidiaries Guaranty,
express or implied, on its part to be observed, performed or
complied with. In the event of inconsistency between this Mortgage
and the Subsidiaries Guaranty, the provisions of this Mortgage
shall prevail but only to the extent required by Marshall Islands
law.
The obligation of the Indebtedness
hereby secured is an obligation in United States Dollars and the
term “$” when used herein shall mean such United States
Dollars. Notwithstanding fluctuations in the value or rate of
United States Dollars in terms of gold or any other currency, all
payments hereunder or otherwise in respect of the Indebtedness
hereby secured shall be payable in
terms of United States Dollars when due, in
United States Dollars when paid, whether such payment is made
before or after the due date.
Section 2. Mortgage Recording. The
Shipowner will cause this Mortgage to be duly recorded or filed in
the Office of the Deputy Commissioner of Maritime Affairs of the
Republic
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of the Marshall Islands, in accordance with the
provisions of Chapter 3 of the Republic of the Marshall Islands
Maritime Act of 1990, as amended, and will otherwise comply with
and satisfy all of the provisions of applicable laws of the
Republic of the Marshall Islands in order to establish and maintain
this Mortgage as a first preferred mortgage thereunder upon the
Vessel and upon all renewals, replacements and improvements made in
or to the same for the amount of the Indebtedness hereby
secured.
Section 3. Lawful Operation. The Shipowner
will not cause or permit the Vessel to be operated in any manner
contrary to law, and the Shipowner will not engage in any unlawful
trade or 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 registration of the Vessel under the laws and
regulations of the Republic of the Marshall Islands and will at all
times keep the Vessel duly documented thereunder.
Section 4. Payment of Taxes. The Shipowner
will pay and discharge when due and payable, from time to time, all
taxes, assessments, governmental charges, fines and penalties
lawfully imposed on the Vessel or any income therefrom.
Section 5. Prohibition of Liens. Neither
the Shipowner, any charterer, 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, its freights, profits or hire any lien whatsoever other
than this Mortgage, other liens in favor of the Mortgagee and for
crew’s wages and salvage.
Section 6. Notice of Mortgage. The
Shipowner will place, and at all times and places will retain a
properly certified copy of this Mortgage on board the Vessel with
her papers and will cause such certified copy and the
Vessel’s marine document to be exhibited to any and all
persons having business therewith which might give rise to any lien
thereon other than liens for crew’s wages and salvage, and to
any representative of the Mortgagee.
The Shipowner will place and keep
prominently displayed in the chart room and in the Master’s
cabin on the Vessel a framed printed notice in plain type reading
as follows:
NOTICE OF MORTGAGE
THIS VESSEL IS OWNED BY [SHIPOWNER],
AND IS SUBJECT TO A FIRST PREFERRED MORTGAGE IN FAVOR OF NORDEA
BANK FINLAND PLC, NEW YORK BRANCH, AS TRUSTEE/MORTGAGEE UNDER
AUTHORITY OF CHAPTER 3 OF THE MARSHALL ISLANDS MARITIME ACT 1990,
AS AMENDED. UNDER THE TERMS OF SAID MORTGAGE, NEITHER THE
SHIPOWNER, ANY CHARTERER, THE MASTER OF THE VESSEL, NOR ANY OTHER
PERSON HAS ANY RIGHT, POWER OR AUTHORITY TO CREATE, INCUR OR PERMIT
TO BE PLACED OR IMPOSED UPON THE VESSEL, ANY ENCUMBRANCES
WHATSOEVER OR ANY OTHER LIEN WHATSOEVER OTHER THAN FOR CREW’S
WAGES AND SALVAGE.
Section 7. Removal of Liens. Except for the
lien of this Mortgage, the Shipowner will not suffer to be
continued any lien, encumbrance or charge on the Vessel, and in due
course and in any event within thirty (30) days after the same
becomes due and payable or within
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fourteen (14) days after being requested to do
so by the Mortgagee, the Shipowner will pay or cause to be
discharged or make adequate provision for the satisfaction or
discharge of all claims or demands, and will cause the Vessel to be
released or discharged from any lien, encumbrance or charge
therefor.
Section 8. Release from Arrest. If a libel,
complaint or similar process be filed against the Vessel or the
Vessel be otherwise attached, levied upon or taken into custody by
virtue of any legal proceeding in any court, the Shipowner will
promptly notify the Mortgagee thereof by telex, or telefax
confirmed by letter, at the address, as specified in this Mortgage,
and within fourteen (14) days will cause the Vessel to be released
and all liens thereon other than this Mortgage to be discharged,
will cause a certificate of discharge to be recorded in the case of
any recording of a notice of claim of lien, and will promptly
notify the Mortgagee thereof in the manner aforesaid. The Shipowner
will notify the Mortgagee within forty-eight (48) hours of any
average or salvage incurred by the Vessel.
Section 9. Maintenance. (a) The
Shipowner will at all times and without cost or expense to the
Mortgagee maintain and preserve, or cause to be maintained and
preserved, the Vessel and all its equipment, outfit and
appurtenances, tight, staunch, strong, in good condition, working
order and repair and in all respects seaworthy and fit for its
intended service, and will keep the Vessel, or cause her to be
kept, in such condition as will entitle her to the highest
classification and rating for vessels of the same age and type in
the American Bureau of Shipping or other classification society
listed on Schedule X to the Credit Agreement. The Shipowner
covenants to deliver annually to the Mortgagee a certificate from
such class society showing such classification to be maintained.
The Shipowner will without cost or expense to the Mortgagee
promptly, irrevocably and unconditionally instruct and authorize
the classification society of the Vessel, and shall request the
classification society to give an undertaking to the Mortgagee as
follows:
1. to send to the Mortgagee,
following receipt of a written request from the Mortgagee,
certified true copies of all original class records held by the
classification society relating to the Vessel;
2. to allow the Mortgagee (or its
agents), at any time and from time to time, to inspect the original
class and related records of the Shipowner and the Vessel at the
offices of the classification society and to take copies of
them;
3. following receipt of a written
request from the Mortgagee:
(a) to advise of any facts or
matters which may result in or have resulted in a change,
suspension, discontinuance, withdrawal or expiry of the
Vessel’s class under the rules or terms and conditions
of the Shipowner’s or the Vessel’s membership of the
classification society; and
(b) to confirm that the
Shipowner is not in default of any of its contractual obligations
or liabilities to the classification society and, without limiting
the foregoing, that it has paid in full all fees or other charges
due and payable to the classification society; and
(c) if the Shipowner is in
default of any of its contractual obligations or liabilities to the
classification society, to specify to the Mortgagee in reasonable
detail
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the facts and circumstances of such
default, the consequences thereof, and any remedy period agreed or
allowed by the classification society; and
(d) to notify the Mortgagee
immediately in writing if the classification society receives
notification from the Shipowner or any other person that the
Vessel’s classification society is to be changed.
Notwithstanding the above
instructions and undertaking given for the benefit of the
Mortgagee, the Shipowner shall continue to be responsible to the
classification society for the performance and discharge of all its
obligations and liabilities relating to or arising out of or in
connection with the contract it has with the classification
society, and nothing herein or therein shall be construed as
imposing any obligation or liability of the Mortgagee to the
classification society in respect thereof.
The Shipowner shall further notify
the classification society that all the foregoing instructions and
authorizations shall remain in full force and effect until revoked
or modified by written notice to the classification society
received from the Mortgagee, and that the Shipowner shall reimburse
the classification society for all its costs and expenses incurred
in complying with the foregoing instructions.
(b) The Vessel shall, and the
Shipowner covenants that she will, at all times comply with all
applicable laws, treaties and conventions to which the Republic of
the Marshall Islands is a party, and rules and regulations
issued thereunder, and shall have on board as and when required
thereby valid certificates showing compliance therewith. The
Shipowner will not make, or permit to be made, any substantial
change in the structure, type or speed of the Vessel or change in
her rig, without first receiving the written approval thereof by
the Mortgagee.
(c) The Shipowner agrees to
give the Mortgagee at least ten (10) days notice of the actual
date and place of any survey or drydocking, in order that the
Mortgagee may have representatives present if desired. The
Shipowner agrees that at the Mortgagee’s request it will
satisfy the Mortgagee that the expense of such survey or drydocking
or work to be done thereat is within Shipowner’s financial
capability and will not result in a claim or lien against the
Vessel in violation of the provisions of this Mortgage, the Credit
Agreement, the Subsidiaries Guaranty or any other Credit
Document.
(d) The Shipowner shall
promptly notify the Mortgagee of and furnish the Mortgagee with
full information, including copies of reports and surveys,
regarding any material accident or accident involving repairs where
the aggregate cost is likely to exceed Five Hundred Thousand
Dollars (U.S. $500,000) (or its equivalent in another currency),
any major damage to the Vessel, any event affecting the
Vessel’s class, any occurrence in consequence whereof the
Vessel has become or is likely to suffer an Event of
Loss.
(e) The Mortgagee shall have
the right at any time, on reasonable notice, to have its surveyor
conduct inspections and surveys of the Vessel to ascertain the
condition of the Vessel and to satisfy itself that the Vessel is
being properly repaired and maintained. Such inspections and
surveys shall be conducted at such times and in such manner as will
not interfere with the Shipowner’s normal business operations
and schedule.
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(f) The Shipowner will furnish
to the Mortgagee on demand true and complete copies of the DOC (the
SMC referred to in the definition of ISM Code Documentation below)
and such other ISM Code documentation as the Mortgagee may
reasonably request in writing.
(g) The Shipowner will comply
or procure compliance with the ISM Code and the ISPS Code (as such
terms are defined below) and notify the Mortgagee forthwith
upon:
(i) any claim for breach of the
ISM Code or the ISPS Code being made against the Shipowner, an ISM
Responsible Person (as such term is defined below) or the manager
of the Vessel in connection with the Vessel; or
(ii) any other matter, event or
incident, actual or which will or could lead to the ISM Code or the
ISPS Code not being complied with;
and keep the Mortgagee advised in writing on a
regular basis and in such detail as the Mortgagee shall require, of
the Shipowner’s and Vessel manager’s response to the
items referred to in subclauses (i) and
(ii) above.
For the purposes of this
Mortgage:
“ISM Code” means in
relation to its application the Shipowner, the Vessel and its
operation:
(a) ‘The International
Management Code for the Safe Operation of Ships and for Pollution
Prevention’, currently known or referred to as the ‘ISM
Code’, adopted by the Assembly of the International Maritime
Organization by Resolution A.741(18) on 4 November 1993 and
incorporated on 19 May 1994 into Chapter IX of the
International Convention for the Safety of Life at Sea 1974 (SOLAS
1974); and
(b) all further resolutions,
circulars, codes, guidelines, regulations and recommendations which
are now or in the future issued by or on behalf of the
International Maritime Organization or any other entity with
responsibility for implementing the ISM Code, including without
limitation, the ‘Guidelines on implementation or
administering of the International Safety Management (ISM) Code by
Administrations’ produced by the International Maritime
Organization pursuant to Resolution A.788(19) adopted on 25
November 1995,
as the same may be amended,
supplemented or replaced from time to time;
“ISM Code Documentation”
includes:
(a) the document of compliance
(DOC) and safety management certificate (SMC) issued pursuant to
the ISM Code in relation to the Vessel within the periods specified
by the ISM Code;
(b) the interim safety
management certificate (“Interim SMC”) issued pursuant
to the ISM Code in relation to the Vessel prior to or on the
delivery date thereof;
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(c) all other documents and
data which are relevant to the ISM SMS and its implementation and
verification which the Mortgagee may require by request;
and
(d) any other documents which
are prepared or which are otherwise relevant to establish and
maintain the Vessel’s or the Shipowner’s compliance
with the ISM Code which the Mortgagee may require by
request.
“ISM SMS” means the
safety management system which is required to be developed,
implemented and maintained under the ISM Code.
“ISPS Code” means the
International Ship and Port Facility Security Code constituted
pursuant to resolution A.924(22) of the International Maritime
Organisation (“IMO”) adopted by a Diplomatic conference
of the IMO on Maritime Security on 13 December 2002 and now
set out in Chapter XI-2 of the Safety of Life at Sea Convention
(SOLAS) 1974 (as amended) to take effect on July 1,
2004.
Section 10. Inspection; Reports.
(a) The Shipowner will at all reasonable times afford the
Mortgagee or its authorized representatives full and complete
access to the Vessel for the purpose of inspecting the Vessel and
her cargo and papers, including without limitation all records
pertaining to the Vessel’s maintenance and repair, and, at
the request of the Mortgagee, the Shipowner will deliver for
inspection copies of any and all contracts and documents relating
to the Vessel, whether on board or not.
(b) The Shipowner hereby agrees
to furnish promptly to the Mortgagee, on demand, any reports or
information which the Shipowner may submit to shareholders or
regulatory agencies and any additional information which the
Mortgagee may request in respect of the financial condition of the
Shipowner.
Section 11. Flag; Home Port. (a) The
Shipowner will not change the flag or home port of the Vessel
without the written consent of the Mortgagee and any such written
consent to anyone change of flag or home port shall not be
construed to be a waiver of this provision with respect to any
subsequent proposed change of flag or home port.
(b) Notwithstanding the
foregoing provisions of this Section 11, upon not less than 30
days prior written notice to the Mortgagee, provided no Default or
Event of Default under the Credit Agreement shall have occurred and
be continuing, the Shipowner may change the flag or home port of
the Vessel to another flag or home port reasonably satisfactory to
the Mortgagee, provided that the Shipowner shall promptly take all
actions necessary or desirable to establish, preserve, protect and
maintain the security interest of the Mortgagee in the Vessel to
the satisfaction of the Mortgagee, and the Shipowner shall have
provided to the Mortgagee and the Lenders such opinions of counsel
as may be reasonably requested by the Mortgagee to assure itself
that the conditions of this proviso have been satisfied.
Section 12. No Sales,
Transfers or Charters. The Shipowner will not sell, mortgage,
transfer, or change the management of, or demise charter the Vessel
for any period longer than twelve (12) months (including any
permitted extensions or renewals) in each case, without the written
consent of the Mortgagee first had and obtained, and any such
written consent to anyone sale, mortgage, demise charter, transfer,
or change of management shall not be construed to be a waiver of
this provision with respect to any subsequent proposed sale,
mortgage, demise charter, transfer, or
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change of management. Any such sale, mortgage,
demise charter, transfer, or change of management of the Vessel
shall be subject to the provisions of this Mortgage and the lien
hereof.
Section 13. Insurance. (a) The
Shipowner, at its own expense, or with respect to part
(a)(iii) of this Section 13 the Mortgagee at the expense
of the Shipowner, will keep the Vessel insured with insurers and
protection and indemnity clubs or associations of internationally
recognized responsibility, and placed in such markets, on such
terms and conditions, and through brokers, in each case reasonably
satisfactory to the Mortgagee and under forms of policies approved
by the Mortgagee against the risks indicated below and such other
risks as the Mortgagee may specify from time to time:
(i) Marine and war risk,
including London Blocking and Trapping Addendum and Lost Vessel
Clause, hull and machinery insurance in an amount in U.S. dollars
equal to, except as otherwise approved or required in writing by
the Mortgagee, the greater of (x) the then full commercial value of
the Vessel and (y) an amount which, when aggregated with such
insured value of the other Mortgaged Vessels (if the other
Mortgaged Vessels are then subject to a mortgage in favor of the
Mortgagee under the Credit Agreement, and have not suffered an
Event of Loss), is equal to 120% of (A) the then aggregate
Total Commitment minus (B) the product of $25,000,000
multi
