exv4w1






Exhibit 4.1




 





NAVIOS MARITIME ACQUISITION CORPORATION




and



NAVIOS ACQUISITION FINANCE (US) INC.,

as Co-Issuers



the GUARANTORS party hereto,

as Guarantors,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee and Collateral Trustee




 





INDENTURE



 





Dated as of October 21, 2010



 





85/8% First Priority Ship Mortgage Notes due 2017




 




 









 





CROSS-REFERENCE TABLE




	 	 	 
	Trust Indenture Act	 	Indenture
	Section	 	Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	7.10
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.08; 7.10
	(b)
	 	7.03; 7.08; 7.10
	(c)
	 	N.A.
	311(a)
	 	7.03; 7.11
	(b)
	 	7.03; 7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	13.03
	(c)
	 	13.03
	313(a)
	 	7.06
	(b)
	 	7.06
	(c)
	 	7.06; 13.02
	(d)
	 	7.06
	314(a)
	 	4.06; 4.17; 13.02
	(b)
	 	11.02
	(c)(1)
	 	7.02; 13.04; 13.05
	(c)(2)
	 	7.02; 13.04; 13.05
	(c)(3)
	 	N.A.
	(d)
	 	11.05
	(e)
	 	13.05
	(f)
	 	N.A.
	315(a)
	 	7.01(b); 7.02(a)
	(b)
	 	7.05; 13.02
	(c)
	 	7.01
	(d)
	 	6.05; 7.01(c)
	(e)
	 	6.11
	316(a)(last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	9.02
	(b)
	 	6.07
	(c)
	 	9.04
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	13.01
	(c)
	 	13.01





N.A. means Not Applicable



Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this
Indenture.




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE ONE

	 
	 	 	 	 
	DEFINITIONS AND INCORPORATION BY REFERENCE

	 
	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	32	 
	SECTION 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	33	 
	SECTION 1.04. Rules of Construction
	 	 	34	 
	 
	 	 	 	 
	ARTICLE TWO

	 
	 	 	 	 
	THE NOTES

	 
	 	 	 	 
	SECTION 2.01. Form and Dating
	 	 	34	 
	SECTION 2.02. Execution, Authentication and Denomination; Additional
Notes; Exchange Securities; Private Exchange Securities
	 	 	35	 
	SECTION 2.03. Registrar and Paying Agent
	 	 	37	 
	SECTION 2.04. Paying Agent To Hold Assets in Trust
	 	 	37	 
	SECTION 2.05. Holder Lists
	 	 	38	 
	SECTION 2.06. Transfer and Exchange
	 	 	38	 
	SECTION 2.07. Replacement Notes
	 	 	38	 
	SECTION 2.08. Outstanding Notes
	 	 	39	 
	SECTION 2.09. Treasury Notes
	 	 	39	 
	SECTION 2.10. Temporary Notes
	 	 	39	 
	SECTION 2.11. Cancellation
	 	 	40	 
	SECTION 2.12. Defaulted Interest
	 	 	40	 
	SECTION 2.13. CUSIP and ISIN Numbers
	 	 	40	 
	SECTION 2.14. Deposit of Moneys
	 	 	40	 
	SECTION 2.15. Book-Entry Provisions for Global Notes
	 	 	41	 
	SECTION 2.16. Special Transfer and Exchange Provisions
	 	 	42	 
	SECTION 2.17. Persons Deemed Owners
	 	 	44	 
	SECTION 2.18. Joint and Several Liability
	 	 	44	 
	 
	 	 	 	 
	ARTICLE THREE

	 
	 	 	 	 
	REDEMPTION

	 
	 	 	 	 
	SECTION 3.01. Notices to Trustee
	 	 	45	 
	SECTION 3.02. Selection of Notes To Be Redeemed
	 	 	45	 
	SECTION 3.03. Notice of Redemption
	 	 	45	 
	SECTION 3.04. Effect of Notice of Redemption
	 	 	46	 
	SECTION 3.05. Deposit of Redemption Price
	 	 	46	 
	SECTION 3.06. Notes Redeemed in Part
	 	 	47	 
	SECTION 3.07. Optional Redemption
	 	 	47	 






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	 	 	Page
	ARTICLE FOUR

	 
	 	 	 	 
	COVENANTS

	 
	 	 	 	 
	SECTION 4.01. Payment of Notes
	 	 	47	 
	SECTION 4.02. Maintenance of Office or Agency
	 	 	47	 
	SECTION 4.03. Corporate Existence
	 	 	48	 
	SECTION 4.04. Payment of Taxes
	 	 	48	 
	SECTION 4.05. Further Assurances
	 	 	48	 
	SECTION 4.06. Compliance Certificate; Notice of Default
	 	 	48	 
	SECTION 4.07. Payments for Consent
	 	 	49	 
	SECTION 4.08. Waiver of Stay, Extension or Usury Laws
	 	 	49	 
	SECTION 4.09. Change of Control
	 	 	49	 
	SECTION 4.10. Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
	 	 	51	 
	SECTION 4.11. Limitations on Restricted Payments
	 	 	55	 
	SECTION 4.12. Limitations on Liens
	 	 	59	 
	SECTION 4.13. Limitations on Asset Sales
	 	 	60	 
	SECTION 4.14. Limitations on Transactions with Affiliates
	 	 	67	 
	SECTION 4.15. Dividend and Other Payment Restrictions Affecting Subsidiaries
	 	 	69	 
	SECTION 4.16. Subsidiary Guarantees
	 	 	71	 
	SECTION 4.17. Reports to Holders
	 	 	72	 
	SECTION 4.18. Limitations on Designation of Restricted and Unrestricted Subsidiaries
	 	 	73	 
	SECTION 4.19. Additional Interest Notice
	 	 	73	 
	SECTION 4.20. Payment of Additional Amounts
	 	 	73	 
	SECTION 4.21. Loss of a Mortgaged Vessel
	 	 	75	 
	SECTION 4.22. Limitation on Business Activities of Navios Acquisition Finance
	 	 	77	 
	 
	 	 	 	 
	ARTICLE FIVE

	 
	 	 	 	 
	SUCCESSOR CORPORATION

	 
	 	 	 	 
	SECTION 5.01. Mergers, Consolidations, Etc.
	 	 	78	 
	 
	 	 	 	 
	ARTICLE SIX

	 
	 	 	 	 
	DEFAULT AND REMEDIES

	 
	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	79	 
	SECTION 6.02. Acceleration
	 	 	81	 
	SECTION 6.03. Other Remedies
	 	 	81	 
	SECTION 6.04. Waiver of Past Defaults
	 	 	82	 
	SECTION 6.05. Control by Majority
	 	 	82	 
	SECTION 6.06. Limitation on Suits
	 	 	82	 
	SECTION 6.07. Rights of Holders To Receive Payment
	 	 	83	 
	SECTION 6.08. Collection Suit by Trustee
	 	 	83	 
	SECTION 6.09. Trustee May File Proofs of Claim
	 	 	83	 
	SECTION 6.10. Priorities
	 	 	84	 
	SECTION 6.11. Undertaking for Costs
	 	 	84	 






-ii- 









 






	 	 	 	 	 
	 	 	Page
	ARTICLE SEVEN

	 
	 	 	 	 
	TRUSTEE

	 
	 	 	 	 
	SECTION 7.01. Duties of Trustee
	 	 	85	 
	SECTION 7.02. Rights of Trustee
	 	 	86	 
	SECTION 7.03. Individual Rights of Trustee and Collateral Trustee

	 	 	87	 
	SECTION 7.04. Disclaimer of Trustee and Collateral Trustee
	 	 	87	 
	SECTION 7.05. Notice of Default
	 	 	88	 
	SECTION 7.06. Reports by Trustee to Holders
	 	 	88	 
	SECTION 7.07. Compensation and Indemnity
	 	 	88	 
	SECTION 7.08. Replacement of Trustee
	 	 	89	 
	SECTION 7.09. Successor Trustee by Merger, Etc.
	 	 	90	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	90	 
	SECTION 7.11. Preferential Collection of Claims Against the Co-Issuers
	 	 	90	 
	 
	 	 	 	 
	ARTICLE EIGHT

	 
	 	 	 	 
	SATISFACTION OR DISCHARGE OF INDENTURE; DEFEASANCE

	 
	 	 	 	 
	SECTION 8.01. Termination of the Co-Issuers’ Obligations
	 	 	91	 
	SECTION 8.02. Option to Effect Legal Defeasance or Covenant Defeasance
	 	 	92	 
	SECTION 8.03. Legal Defeasance
	 	 	92	 
	SECTION 8.04. Covenant Defeasance
	 	 	93	 
	SECTION 8.05. Conditions to Legal or Covenant Defeasance
	 	 	93	 
	SECTION 8.06. Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions
	 	 	94	 
	SECTION 8.07. Repayment to the Co-Issuers
	 	 	95	 
	SECTION 8.08. Reinstatement
	 	 	95	 
	 
	 	 	 	 
	ARTICLE NINE

	 
	 	 	 	 
	AMENDMENTS, SUPPLEMENTS AND WAIVERS

	 
	 	 	 	 
	SECTION 9.01. Without Consent of Holders
	 	 	95	 
	SECTION 9.02. With Consent of Holders
	 	 	97	 
	SECTION 9.03. Compliance with the Trust Indenture Act
	 	 	98	 
	SECTION 9.04. Revocation and Effect of Consents
	 	 	98	 
	SECTION 9.05. Notation on or Exchange of Notes
	 	 	99	 
	SECTION 9.06. Trustee and Collateral Trustee To Sign Amendments, Etc.
	 	 	99	 
	 
	 	 	 	 
	ARTICLE TEN

	 
	 	 	 	 
	NOTE GUARANTEE

	 
	 	 	 	 
	SECTION 10.01. Unconditional Guarantee
	 	 	100	 
	SECTION 10.02. Limitation on Guarantor Liability
	 	 	101	 
	SECTION 10.03. Execution and Delivery of Guarantee
	 	 	101	 
	SECTION 10.04. Release of a Guarantor
	 	 	101	 
	SECTION 10.05. Waiver of Subrogation
	 	 	102	 
	SECTION 10.06. Immediate Payment
	 	 	102	 






-iii- 









 






	 	 	 	 	 
	 	 	Page
	SECTION 10.07. No Set-Off
	 	 	102	 
	SECTION 10.08. Guarantee Obligations Absolute
	 	 	103	 
	SECTION 10.09. Note Guarantee Obligations Continuing
	 	 	103	 
	SECTION 10.10. Note Guarantee Obligations Not Reduced
	 	 	103	 
	SECTION 10.11. Note Guarantee Obligations Reinstated
	 	 	103	 
	SECTION 10.12. Note Guarantee Obligations Not Affected
	 	 	103	 
	SECTION 10.13. Waiver
	 	 	104	 
	SECTION 10.14. No Obligation To Take Action Against the Co-Issuers
	 	 	104	 
	SECTION 10.15. Dealing with the Co-Issuers and Others
	 	 	105	 
	SECTION 10.16. Default and Enforcement
	 	 	105	 
	SECTION 10.17. Acknowledgment
	 	 	105	 
	SECTION 10.18. Costs and Expenses
	 	 	105	 
	SECTION 10.19. No Merger or Waiver; Cumulative Remedies
	 	 	105	 
	SECTION 10.20. Survival of Note Guarantee Obligations
	 	 	106	 
	SECTION 10.21. Note Guarantee in Addition to Other Guarantee Obligations
	 	 	106	 
	SECTION 10.22. Severability
	 	 	106	 
	SECTION 10.23. Successors and Assigns
	 	 	106	 
	 
	 	 	 	 
	ARTICLE ELEVEN

	 
	 	 	 	 
	SECURITY DOCUMENTS

	 
	 	 	 	 
	SECTION 11.01. Collateral and Security Documents
	 	 	106	 
	SECTION 11.02. Recording, Etc.
	 	 	107	 
	SECTION 11.03. Disposition of Collateral Without Release
	 	 	108	 
	SECTION 11.04. Release of Collateral
	 	 	109	 
	SECTION 11.05. Trust Indenture Act Requirements
	 	 	111	 
	SECTION 11.06. Suits To Protect the Collateral
	 	 	111	 
	SECTION 11.07. Purchaser Protected
	 	 	111	 
	SECTION 11.08. Powers Exercisable by Receiver or Trustee
	 	 	112	 
	SECTION 11.09. Substitution of a Qualified Vessel or Qualified Collateral; Designation as Mortgaged Vessel
	 	 	112	 
	SECTION 11.10. Determinations Relating to Collateral
	 	 	113	 
	SECTION 11.11. Release upon Termination of the Co-Issuers’ Obligations
	 	 	113	 
	SECTION 11.12. Collateral Trustee’s Duties in Respect of Collateral
	 	 	113	 
	SECTION 11.13. Parallel Debt
	 	 	113	 
	SECTION 11.14. Change of Flag
	 	 	114	 
	SECTION 11.15. Appointment of Collateral Trustee and Supplemental Collateral Trustees
	 	 	115	 
	SECTION 11.16. Compensation and Indemnity of Collateral Trustee; Immunities of Collateral Trustee
	 	 	117	 
	SECTION 11.17. Replacement of Collateral Trustee
	 	 	122	 
	 
	 	 	 	 
	ARTICLE TWELVE

	 
	 	 	 	 
	APPLICATION OF TRUST MONIES

	 
	 	 	 	 
	SECTION 12.01. “Trust Monies” Defined
	 	 	123	 
	SECTION 12.02. Use of Trust Monies; Retirement of Notes
	 	 	124	 
	SECTION 12.03. Powers Exercisable Notwithstanding Event of Default
	 	 	126	 






-iv- 









 






	 	 	 	 	 
	 	 	Page
	SECTION 12.04. Powers Exercisable by Trustee or Receiver
	 	 	126	 
	SECTION 12.05. Disposition of Notes Retired
	 	 	126	 
	SECTION 12.06. Investment of Trust Monies
	 	 	126	 
	 
	 	 	 	 
	ARTICLE THIRTEEN

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 13.01. Trust Indenture Act Controls
	 	 	127	 
	SECTION 13.02. Notices
	 	 	127	 
	SECTION 13.03. Communications by Holders with Other Holders
	 	 	128	 
	SECTION 13.04. Certificate and Opinion as to Conditions Precedent
	 	 	128	 
	SECTION 13.05. Statements Required in Certificate or Opinion
	 	 	129	 
	SECTION 13.06. Rules by Paying Agent or Registrar
	 	 	129	 
	SECTION 13.07. Legal Holidays
	 	 	129	 
	SECTION 13.08. GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION
	 	 	129	 
	SECTION 13.09. No Adverse Interpretation of Other Agreements
	 	 	130	 
	SECTION 13.10. No Personal Liability of Directors, Officers, Employees and Stockholders
	 	 	130	 
	SECTION 13.11. Successors
	 	 	130	 
	SECTION 13.12. Duplicate Originals
	 	 	130	 
	SECTION 13.13. Severability
	 	 	130	 
	SECTION 13.14. Force Majeure
	 	 	130	 
	SECTION 13.15. Agent for Service; Submission to Jurisdiction; Waiver of Immunities
	 	 	131	 
	SECTION 13.16. Currency of Account; Conversion of Currency; Foreign Exchange Restrictions
	 	 	132	 
	SECTION 13.17. Patriot Act
	 	 	134	 
	 
	 	 	 	 
	Signatures
	 	 	S-1	 






-v- 









 





	 	 	 	 	 

	Exhibit A

	 	—
	 	Form of Note
	Exhibit B

	 	—
	 	Form of Legends
	Exhibit C

	 	—
	 	Form of Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation S
	Exhibit D

	 	—
	 	Form of Supplemental Indenture for Additional Guarantor(s)
	Exhibit E

	 	—
	 	Form of Notation of Guarantee
	Exhibit F

	 	—
	 	Form of Hong Kong Ship Mortgage
	Exhibit G-1

	 	—
	 	Form of Assignment of Freights and Hires
	Exhibit G-2

	 	—
	 	Form of Assignment of Insurance
	Exhibit H

	 	—
	 	Form of Incumbency Certificate





Note: This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.




-vi- 









 





          INDENTURE dated as of October 21, 2010 among Navios Maritime Acquisition Corporation, a
Marshall Islands corporation (the “Company”), and Navios Acquisition Finance (US) Inc., a Delaware
corporation, as co-issuers (“Navios Acquisition Finance”, with the Company and Navios Acquisition
Finance being referred to herein individually as a “Co-Issuer” and collectively as “Co-Issuers”),
each of the Guarantors named herein, as Guarantors, and Wells Fargo Bank, National Association, a
national banking association, as Trustee (the “Trustee”) and as Collateral Trustee (the “Collateral
Trustee”).




          The Co-Issuers have duly authorized the creation of an issue of 85⁄8% First Priority Ship
Mortgage Notes due 2017 and, to provide therefor, the Co-Issuers and the Guarantors have duly
authorized the execution and delivery of this Indenture. All things necessary to make the Notes,
when duly issued and executed by the Co-Issuers and authenticated and delivered hereunder, the
valid and binding joint and several obligations of the Co-Issuers and to make this Indenture a
valid and binding agreement of the Co-Issuers and the Guarantors have been done.




          For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as
follows:




ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE


SECTION 1.01. Definitions.




          Set forth below are certain defined terms used in this Indenture.




          “Acquired Debt” means, with respect to any specified Person:





     (1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or becomes a Restricted Subsidiary of such specified Person, whether or not
such Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and




     (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.



          “Additional Interest” means (i) “Additional Interest” as defined in the Registration Rights
Agreement with respect to the Notes issued on the Issue Date and (ii) “Special Interest,”
“Additional Interest,” “Liquidated Damages” or any similar term as such term is defined in any
registration rights agreement with respect to Additional Notes issued after the Issue Date.




          “Administrative Services Agreement” means the Administrative Services Agreement dated May 28,
2010 between the Company and Navios ShipManagement Inc, as such agreement may be amended, modified,
supplemented, replaced, extended or renewed from time to time in compliance with clause (7) of
Section 4.14(b).




          “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether






 









 







through the ownership of voting securities, by agreement or otherwise. For the purposes of
this definition, the terms “controlling,” “controlled by” and “under common control with” have
correlative meanings.




          “Agent” means any Registrar or Paying Agent.




          “Applicable Premium” means, with respect to a Note at any time, the greater of (1) 1.0% of the
principal amount of such Note at such time and (2) the excess of (A) the present value at such time
of (i) the redemption price of such Note at November 1, 2013 plus (ii) all remaining interest
payments due on such Note through and including November 1, 2013 (excluding any interest accrued to
the Make-Whole Redemption Date), discounted on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) from November 1, 2013 to the Make-Whole Redemption Date,
computed using a discount rate equal to the Applicable Treasury Rate plus 0.50%, over (B) the
principal amount of such Note on the Make-Whole Redemption Date.




          “Applicable Treasury Rate” for any redemption date, means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to the Make-Whole Redemption Date of such note (or, if
such Statistical Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the period from the Make-Whole Redemption Date to November 1, 2013;
provided, however, that if the period from the Make-Whole Redemption Date to November 1, 2013 is
not equal to the constant maturity of a United States Treasury security for which a weekly average
yield is given, the Applicable Treasury Rate shall be obtained by linear interpolation (calculated
to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury
securities for which such yields are given except that if the period from the Make-Whole Redemption
Date to November 1, 2013 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be used.




          “Appraised Value” means the fair market sale value as of a specified date of a specified
Vessel that would be obtained in an arm’s-length transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as
determined in writing by an Independent Appraiser selected by the Company and, in the event such
Independent Appraiser is not a Designated Appraiser, reasonably acceptable to the Trustee.




          “Asset Sale” means:





     (1) the sale, lease, conveyance or other disposition of any assets (other than, in the
case of Collateral, an Event of Loss); provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Co-Issuers and their Restricted
Subsidiaries taken as a whole shall be governed by the provisions of Sections 4.09 and/or
5.01 and not by the provisions of Section 4.13; and




     (2) the issuance by any of the Company’s Restricted Subsidiaries of any Equity Interest
of such Restricted Subsidiary or the sale by the Company or any Restricted Subsidiary of
Equity Interests in any Restricted Subsidiaries (other than directors’ qualifying shares or
shares required by applicable law to be held by a Person other than the Company or any of
its Subsidiaries).



-2-









 





          Notwithstanding the preceding, none of the following items shall be deemed to be an Asset
Sale:





     (1) other than in the case of Collateral, any single transaction or series of related
transactions that involves assets having a Fair Market Value of less than $10.0 million;




     (2) a sale, lease, conveyance, transfer or other disposition of assets between or among
the Company and/or its Restricted Subsidiaries; provided that if such sale, lease,
conveyance, transfer or other disposition involves Collateral, such exemption shall only be
available if such transaction is between or among the Company and/or one or more Mortgaged
Vessel Guarantors;




     (3) an issuance, sale, transfer or other disposition of Equity Interests by a
Restricted Subsidiary of the Company to the Company or to another Restricted Subsidiary of
the Company;




     (4) the sale or other disposition of damaged, worn-out or obsolete assets;




     (5) the sale or other disposition of cash or Cash Equivalents;




     (6) (i) a Restricted Payment that does not violate Section 4.11 or a Permitted
Investment; and (ii) any issuance, sale, transfer or other disposition of Capital Stock of
an Unrestricted Subsidiary;




     (7) sales of accounts receivable and inventory (other than Vessels and Related Assets)
in the ordinary course of business for cash or Cash Equivalents;




     (8) a Permitted Asset Swap;




     (9) sales and/or contributions of Securitization Assets to a Securitization Subsidiary
in a Qualified Securitization Transaction for the Fair Market Value thereof including cash
in an amount at least equal to 75% of the Fair Market Value thereof (for the purposes of
this clause (9), Purchase Money Notes shall be deemed to be cash); and




     (10) any transfer of Securitization Assets or a fractional undivided interest therein,
by a Securitization Subsidiary in a Qualified Securitization Transaction.



          “Assignment of Freights and Hires” means each assignment, between either a Co-Issuer or a
Mortgaged Vessel Guarantor, as applicable, and the Collateral Trustee, dated the Issue Date or a
Vessel Tender Date, as the case may be, as amended from time to time in accordance with the terms
of this Indenture and substantially in the form of Exhibit G-1 hereto, together with the
documents contemplated thereby, pursuant to which a Co-Issuer or such Mortgaged Vessel Guarantor,
as applicable, assigns its right, title and interest in, to and under all charters, freights, hires
and other earnings in respect of its Mortgaged Vessel.




          “Assignment of Insurance” means each assignment, between either a Co-Issuer or a Mortgaged
Vessel Guarantor, as applicable, and the Collateral Trustee, dated the Issue Date or a Vessel
Tender Date, as the case may be, as amended from time to time in accordance with the terms of this
Indenture and substantially in the form of Exhibit G-2 hereto, together with the documents
contemplated thereby, pursuant to which such Co-Issuer or Mortgaged Vessel Guarantor, as
applicable, assigns its right, title and interest in, to and under all policies and contracts of
insurance in respect of its Mortgaged Vessel as well as any proceeds of such insurance.







-3-









 








          “Attributable Indebtedness” in respect of a Sale/Leaseback Transaction means, as at the time
of determination, the present value (discounted at the interest rate equal to the rate implicit in
such transaction for the relevant lease period, determined in accordance with GAAP) of the total
obligations of the lessee for net rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease has been extended);
provided, however, that if such Sale/Leaseback Transaction results in a Capital Lease Obligation,
the amount of Indebtedness required thereby shall be determined in accordance with the definition
of “Capital Lease Obligation.”




          “Bankruptcy Law” means Title 11 of the United States Code, as amended, or any applicable
United States federal, state or foreign law for the relief of debtors, or bankruptcy, insolvency,
reorganization or other similar law.




          “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular “person”
(as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to
have beneficial ownership of all securities that such “person” has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only after the passage of time; provided that, notwithstanding the foregoing, the
holders of the Company’s warrants outstanding on the Issue Date shall not be deemed to beneficially
own the underlying shares until such warrants have been exercised. The terms “Beneficially Owns,”
“Beneficially Owned” and “Beneficial Ownership” shall have correlative meanings.




          “Board of Directors” means:





     (1) with respect to a corporation, the board of directors of the corporation or, other
than for purposes of the definition of “Change of Control,” any committee thereof duly
authorized to act on behalf of such board; and




     (2) with respect to any other Person, the functional equivalent of a board of directors
of a corporation or, other than for purposes of the definition of “Change of Control,” any
committee thereof duly authorized to act on behalf thereof.



          “Board Resolution” means with respect to any Person, a copy of a resolution certified by the
Secretary or an Assistant Secretary (or individual with similar authority) of such Person, to have
been duly adopted by the Board of Directors of such Person and to be in full force and effect on
the date of such certification, and delivered to the Trustee.




          “Business Day” means a day other than a Saturday, Sunday or other day on which banking
institutions in New York, the location of the office of the Paying Agent or the location of the
Corporate Trust Office of the Trustee are authorized or required by law to close.




          “Capital Lease Obligation” means, at the time of determination, the amount of the liability in
respect of a capital lease that would at that time be required to be capitalized on a balance sheet
in accordance with GAAP.




          “Capital Stock” means:





     (1) in the case of a corporation, corporate stock;



-4-









 






     (2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) in the equity of such
association or entity;




     (3) in the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and




     (4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation with Capital Stock.



          “Cash Equivalents” means:





     (1) United States dollars or Euro or other currency of a member of the Organization for
Economic Cooperation and Development (including such currencies as are held as overnight
bank deposits and demand deposits with banks);




     (2) securities issued or directly and fully guaranteed or insured by the government of
the United States or any Member State of the European Union or any other country whose
sovereign debt has a rating of at least A3 from Moody’s and at least A- from S&P or any
agency or instrumentality thereof having maturities of not more than one year from the date
of acquisition;




     (3) demand and time deposits and eurodollar time deposits and certificates of deposit
or bankers’ acceptances with maturities of one year or less from the date of acquisition, in
each case, with any financial institution organized under the laws of any country that is a
member of the Organization for Economic Cooperation and Development having capital and
surplus and undivided profits in excess of US$500.0 million;




     (4) repurchase obligations with a term of not more than 60 days for underlying
securities of the types described in clause (2) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;




     (5) commercial paper and variable or fixed rate notes rated P-1 or higher by Moody’s or
A-1 or higher by S&P and, in each case, maturing within one year after the date of
acquisition; and




     (6) money market funds that invest primarily in Cash Equivalents of the kinds described
in clauses (1) through (5) of this definition.



          “Change of Control” means the occurrence of any of the following events:





     (1) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders, is or becomes the Beneficial Owner,
directly or indirectly, of Voting Stock representing more than 50% of the voting power of
the total outstanding Voting Stock of the Company;




     (2) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (together with any new directors whose
election to such Board of Directors or whose nomination for election by the stockholders of
the Company was approved by a vote of the majority of the directors of the Company then
still in office who



-5-









 







were either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Company;




     (3) (a) all or substantially all of the assets of the Company and the Restricted
Subsidiaries are sold or otherwise transferred to any Person other than a Wholly Owned
Restricted Subsidiary or one or more Permitted Holders or (b) the Company consolidates or
merges with or into another Person or any Person consolidates or merges with or into the
Company, in either case under this clause (3), in one transaction or a series of related
transactions in which immediately after the consummation thereof Persons Beneficially
Owning, directly or indirectly, Voting Stock representing in the aggregate a majority of the
total voting power of the Voting Stock of the Company immediately prior to such consummation
do not Beneficially Own, directly or indirectly, Voting Stock representing a majority of the
total voting power of the Voting Stock of the Company or the surviving or transferee Person;
or




     (4) the Company shall adopt a plan of liquidation or dissolution or any such plan shall
be approved by the stockholders of the Company.



          “Charter” means each time charter party entered into with respect to a Mortgaged Vessel.




          “Collateral” means, collectively, all of the property and assets (including, without
limitation, Trust Monies) that are from time to time subject to the Security Documents.




          “Collateral Trustee” means Wells Fargo Bank, National Association, and its successors, as
Collateral Trustee for the Collateral under this Indenture, the Security Documents and any
additional Collateral Trustee or Supplemental Collateral Trustee.




          “Commitment Letter” means that certain commitment letter described in the Offering Memorandum
under “Description of Other Indebtedness—Bank Commitment” relating to a term loan facility in an
aggregate principal amount of up to $90.0 million.




          “Consolidated Cash Flow” means, for any period, for any Person, an amount determined for such
Person and its Restricted Subsidiaries on a consolidated basis equal to:





     (1) Consolidated Net Income for such period; plus




     (2) the sum, without duplication, of the amounts for such Person and its Restricted
Subsidiaries for such period (in each case to the extent reducing such Consolidated Net
Income) of:




     (a) Fixed Charges;




     (b) provision for taxes based on income;




     (c) total depreciation expenses;




     (d) total amortization expenses (including, without limitation, the
amortization of capitalized drydocking expenses);



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     (e) other non-cash items reducing such Consolidated Net Income (excluding any
such non-cash item to the extent that it represents an accrual or reserve for
potential cash items in any future period or amortization of a prepaid cash item
that was paid in a prior period); and




     (f) to the extent any Attributable Indebtedness is outstanding and is not a
Capital Lease Obligation, the amount of any payments therefor less the amount of
interest implicit in such payments; minus




     (3) the amount for such period (to the extent increasing such Consolidated Net Income)
of non-cash items increasing such Consolidated Net Income (other than any such non-cash item
to the extent it represents the reversal of an accrual or reserve for potential cash items
in any prior period);


provided that the items listed in clauses (2)(a) through (f) for a Restricted Subsidiary shall be
included in Consolidated Cash Flow only to the extent (and in the same proportion) that the net
income of such Subsidiary was included in calculating Consolidated Net Income for such period.




          “Consolidated Net Income” means, for any period, the net income (or net loss) of the Company
and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP, adjusted to the extent included in calculating such net income or loss by excluding
(without duplication):





     (1) any net after-tax extraordinary or nonrecurring gains or losses (less all fees and
expenses relating thereto);




     (2) any net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales or dispositions of securities;




     (3) the portion of net income (or loss) of any Person (other than the Company or a
Restricted Subsidiary) in which the Company or any Restricted Subsidiary has an ownership
interest, except to the extent of the amount of dividends or other distributions actually
paid to the Company or any Restricted Subsidiary in cash during such period;




     (4) the net income (but not the net loss) of any Restricted Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such Restricted
Subsidiary is at the date of determination restricted, directly or indirectly, except to the
extent that such net income is actually, or is permitted to be, paid to the Company or a
Restricted Subsidiary thereof by loans, advances, intercompany transfers, principal
repayments or otherwise; provided that with respect to a Guarantor (or a Securitization
Subsidiary this clause (4) shall be applicable solely for purpose of calculating
Consolidated Net Income to determine the amount of Restricted Payments permitted under
Section 4.11;




     (5) any non-cash expenses or charges resulting from stock, stock option or other
equity-based awards;




     (6) the cumulative effect of a change in accounting principles;




     (7) any impairment charge or asset write-off or write-down, in each case, pursuant to
GAAP, and the amortization of intangibles arising pursuant to GAAP;



-7-









 






     (8) the net after-tax effects of adjustments in the inventory, property and equipment,
goodwill, intangible assets, deferred revenue and debt line items in such Person’s
consolidated financial statements pursuant to GAAP resulting from the application of
purchase accounting or the amortization or write-off of any amounts thereof;




     (9) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, Investment, Asset Sale, issuance or
repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or
amendment or modification of any debt instrument (including without limitation any such
transaction undertaken but not completed);




     (10) the portion of distributions received from one or more Designated MLPs otherwise
includable in “Consolidated Net Income” of the Company to the extent the Company elects to
exclude such distributions from “Consolidated Net Income” and credits such amounts towards
subclause (y) of clause (17) of the definition of “Permitted Investments”; and




     (11) any non-cash expenses or charges resulting from the preferred stock (other than
Disqualified Stock) outstanding (or committed to be issued) as of the Issue Date;


provided, however, that Consolidated Net Income shall be reduced by the amount of all dividends on
Designated Preferred Stock (other than dividends paid in Qualified Equity Interests) paid, accrued
or scheduled to be paid or accrued during such period.




          “Corporate Trust Office” means the corporate trust office of the Trustee located at 45
Broadway, 14th floor, New York, New York 10006, Corporate Trust Services, or such other office,
designated by the Trustee by written notice to the Co-Issuers, at which at any particular time its
corporate trust business shall be principally administered.




          “Credit Agreement” means that certain Loan Agreement dated as of September 7, 2010 by and
among Rhodes Shipping Corporation, Crete Shipping Corporation, Shinyo Kieran Limited and Aegean Sea
Maritime Holdings Inc, as joint and several borrowers, Marfin Egnatia Bank, SA, as arranger, agent
and security trustee and the financial institutions listed therein, as lenders, including any
related notes, guarantees, collateral documents, instruments and agreements executed in connection
therewith, and in each case, as amended, restated, modified, renewed, refunded, replaced (whether
upon termination or otherwise), increased or refinanced (including by means of sales of debt
securities to institutional investors), including by means of a Qualified Securitization
Transaction, in whole or in part from time to time (and without limitation as to amount, terms,
conditions, covenants and other provisions, including increasing the amount of available borrowings
thereunder, changing or replacing agent banks and lenders thereunder or adding, removing or
reclassifying Subsidiaries of the Company as borrowers or guarantors thereunder).




          “Credit Facilities” means one or more debt facilities or agreements (including, without
limitation, the Credit Agreement) or commercial paper facilities, in each case, with banks, other
institutional lenders, commercial finance companies or other lenders providing for revolving credit
loans, term loans, bonds, debentures, securitization financing (including through the transfer of
Securitization Assets to special purpose entities formed to borrow from such lenders against, or
sell undivided interests in, such assets in a Qualified Securitization Transaction) or letters of
credit, pursuant to agreements or indentures, in each case, as amended, restated, modified,
renewed, refunded, replaced, increased or refinanced (including by means of sales of debt
securities to institutional investors) in whole or in part from time to time (and without
limitation as to amount, terms, conditions, covenants and other provisions, including increasing
the amount of available borrowings thereunder, changing or replacing agent banks and lenders






-8-









 







thereunder or adding, removing or reclassifying the Company and/or Subsidiaries of the Company
as borrowers or guarantors thereunder).




          “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.




          “Default” means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.




          “Depository” means, with respect to the Global Notes, The Depository Trust Company, New York,
New York, its nominees and any and all successors thereto appointed as depository hereunder and
having become such pursuant to the applicable provisions of this Indenture.




          “Designated Appraiser” means any of Fearnleys A.S., Oslo Shipbrokers A.S., Clarkson Valuations
Limited, Simpson Spence & Young Shipbrokers Ltd., E.A. Gibson Shipbrokers Ltd., Jacq. Pierot Jr. &
Sons, Allied Shipbroking, Greece, RS Platou ASA, ICAP Shipping Limited, ACM Ltd., London, Island
Shipbrokers PTE LTD, Singapore, and Deloitte LLP, Ernst & Young LLP and KPMG LLP; provided that, at
the time any such firm is to be utilized, such firm would qualify as an Independent Appraiser.




          “Designated MLP” means one or more master limited partnerships, publicly traded partnerships
or limited liability companies, in each case, the interests in which are publicly traded on an
established securities exchange or secondary market and designated as such by an Officer of the
Company.




          “Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration
received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so
designated as Designated Non-cash Consideration pursuant to an Officers’ Certificate setting forth
the basis of such valuation executed by an authorized Officer of the Company, less the amount of
cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash
Consideration.




          “Designated Preferred Stock” means preferred stock of the Company (other than Disqualified
Stock) issued and sold for cash in a bona-fide financing transaction that is designated as
Designated Preferred Stock pursuant to an Officers’ Certificate on the issuance date thereof, the
net cash proceeds of which are excluded from the calculation of Restricted Payments for purposes of
Section 4.11(a)(3) and are not used for purposes of Section 4.11(a)(3)(B).




          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder of the Capital Stock, in whole or in part,
on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding
the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because
the holders of the Capital Stock have the right to require the issuer thereof to repurchase or
redeem such Capital Stock upon the occurrence of a change of control or an asset sale prior to the
stated maturity of the Notes shall not constitute Disqualified Stock. The amount of Disqualified
Stock deemed to be outstanding at any time for purposes of this Indenture shall be the maximum
amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the
maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock.







-9-









 








          “Eligible Jurisdiction” means any of the Republic of the Marshall Islands, the United States
of America, any State of the United States or the District of Columbia, the Commonwealth of the
Bahamas, the Republic of Liberia, the Republic of Panama, the Commonwealth of Bermuda, the British
Virgin Islands, the Cayman Islands, the Isle of Man, Cyprus, Norway, Greece, Hong Kong, the United
Kingdom, Malta, any Member State of the European Union and any other jurisdiction generally
acceptable to institutional lenders in the shipping industry, as determined in good faith by the
Board of Directors.




          “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).




          “Equity Offering” means any issuance and sale by the Company of its Qualified Equity
Interests.




          “Event of Loss” means any of the following events: (a) the actual or constructive total loss
of a Vessel or the agreed or compromised total loss of a Vessel, (b) the destruction of a Vessel,
(c) damage to a Vessel to an extent, determined in good faith by the Company within 90 days after
the occurrence of such damage (and evidenced by an Officers’ Certificate to such effect delivered
to the Trustee and the Collateral Trustee, within such 90-day period), as shall make repair thereof
uneconomical or shall render such Vessel permanently unfit for normal use (other than obsolescence)
or (d) the condemnation, confiscation, requisition for title, seizure, forfeiture or other taking
of title to or use of a Vessel that shall not be revoked within six months. An Event of Loss shall
be deemed to have occurred: (i) in the event of the destruction or other actual total loss of a
Vessel, on the date of such loss, or if such date is unknown, on the date such Vessel was last
reported; (ii) in the event of a constructive, agreed or compromised total loss of a Vessel, on the
date of determination of such total loss; (iii) in the case of any event referred to in clause (c)
above, upon the delivery of the Company’s Officers’ Certificate to the Trustee and the Collateral
Trustee; or (iv) in the case of any event referred to in clause (d) above, on the date that is six
months after the occurrence of such event.




          “Event of Loss Proceeds” means all compensation, damages and other payments (including
insurance proceeds) received by the Company, any Mortgaged Vessel Guarantor or Trustee or the
Collateral Trustee, jointly or severally, from any Person, including any governmental authority,
with respect to or in connection with an Event of Loss.




          “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor
statute or statutes thereto and, in each case, the rules and regulations promulgated by the SEC
thereunder.




          “Exchange Offer” means an offer that may be made by the Co-Issuers pursuant to the
Registration Rights Agreement to exchange Notes bearing the Private Placement Legend for the
Exchange Securities and/or Private Exchange Securities.




          “Exchange Securities” has the meaning set forth in the Registration Rights Agreement.




          “Exercised Vessel Purchase Option Contract” means any Vessel Purchase Option Contract which
has been exercised by the Company or a Restricted Subsidiary, obligating the Company or such
Restricted Subsidiary to purchase such Vessel and any Related Assets, subject only to customary
conditions precedent.




          “Existing Indebtedness” means Indebtedness of the Company and its Subsidiaries in existence on
the Issue Date after giving effect to the issuance of the Notes on the Issue Date and the use of



-10-









 







proceeds therefrom, including the amount of undrawn commitments under any Credit Facilities
(including, without limitation, the Credit Agreement and the Commitment Letter) in existence on the
Issue Date and described in the Offering Memorandum.



          “Existing Mortgaged Vessels” means the following Vessels owned by the Company or a Guarantor
on the Issue Date: Shinyo Splendor, Shinyo Navigator, C. Dream, Shinyo Ocean, Shinyo Kannika and
Shinyo Saowalak.




          “Fair Market Value” means, with respect to any asset or property, the value that would be paid
by a willing buyer to an unaffiliated willing seller in an arm’s length transaction not involving
distress or necessity of either party. Fair Market Value shall be determined in good faith by (i)
if the value of such property or asset is less than $25.0 million, an officer of the Company and
evidenced by an Officers’ Certificate delivered to the Trustee and (ii) if the value of such
property or asset equals or exceeds $25.0 million, the Board of Directors of the Company; provided,
however, that (x) if such determination is with respect to one or more Vessels with a value that
equals or exceeds $25.0 million (as determined by the Company in good faith), Fair Market Value
shall be (I) based on the Appraised Value of such Vessel and (II) shall be the greater of such
Vessel’s “charter-free” and “charter-adjusted” values and (y) if such determination relates to the
determination by the Company of compliance with clause (7) of the definition of “Permitted Liens,”
such determination shall comply with clause (x) to the extent such determination relates to one or
more Vessels and in all other cases such determination shall be based on the written opinion of an
independent investment banking firm of international standing qualified to perform the task for
which such firm has been engaged (as determined by the Company in good faith).




          “Fixed Charge Coverage Ratio” means with respect to any specified Person for any period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such
Person for such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases
or redeems Disqualified Stock or preferred stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made occurred (the
“Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or
other discharge of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock
or preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the
beginning of the applicable four-quarter reference period.




          In addition, for purposes of calculating the Fixed Charge Coverage Ratio:





     (1) acquisitions (including of Vessels and Related Assets including, without
limitation, chartered-in Vessels) that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations, of any other Person or
any of its Subsidiaries acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and any prior acquisitions by
such other Person to the extent not fully reflected in the historical results of operations
of such other Person, and including increases in ownership of Restricted Subsidiaries,
during the four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be given pro forma effect as if they had occurred on the
first day of the four-quarter reference period;




     (2) the Consolidated Cash Flow attributable to operations (including Vessels and
Related Assets) or businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded;



-11-









 






     (3) the Fixed Charges attributable to operations (including Vessels and Related Assets)
or businesses (and ownership interests therein) disposed of prior to the Calculation Date
shall be excluded, but only to the extent that the obligations giving rise to such Fixed
Charges shall not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date;




     (4) any Person that is a Restricted Subsidiary on the Calculation Date (or would become
a Restricted Subsidiary on such Calculation Date in connection with the transaction
requiring determination of such Consolidated Cash Flow) shall be deemed to have been a
Restricted Subsidiary at all times during such four-quarter period;




     (5) any Person that is not a Restricted Subsidiary on the Calculation Date (or would
cease to be a Restricted Subsidiary on such Calculation Date in connection with the
transaction requiring determination of such Consolidated Cash Flow) shall be deemed not to
have been a Restricted Subsidiary at any time during such four-quarter period;




     (6) if any Indebtedness bears a floating rate of interest, the interest expense on such
Indebtedness shall be calculated at the actual rate that was in effect from time to time
(taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging
Obligation has a remaining term as at the Calculation Date in excess of 12 months); and




     (7) if the Company or any Restricted Subsidiary shall have entered into an agreement to
acquire a Vessel which at the time of calculation to the Fixed Charge Coverage Ratio is
being constructed on behalf of the Company or such Restricted Subsidiary then (a) if such
Vessel is one of the twelve Vessels under construction or two vessels under purchase option,
in each case, identified in the Offering Memorandum (an “Identified Pending Vessel”), pro
forma effect will be given to the extent provided in the next paragraph below or (b) if such
Vessel is not an Identified Pending Vessel (an “Other Pending Vessel”) but is scheduled to
be delivered no later than 18 months from the date of such calculation of the Fixed Charge
Coverage Ratio and has been chartered out to a third party that is not an Affiliate of the
Company pursuant to a bona fide time charter entered into on customary terms for time
charters at the time (as determined in good faith by the Company), which is binding on such
third party and which has a fixed duration of not less than five years (a “Qualified Other
Pending Vessel”), pro forma effect will be given to the extent provided in the next
paragraph below.



          For purposes of this definition, whenever pro forma effect is to be given to an acquisition
(including without limitation, the charter-in of a Vessel) or construction of a Vessel or the
Capital Stock of a Person that owns, or charters in, one or more Vessels, or the financing thereof,
such Person may (i) other than in the case of an Other Pending Vessel if a relevant Vessel is to be
subject to a time charter-out with a remaining term of twelve months or longer, apply for the
period for which the Fixed Charge Coverage Ratio is being calculated pro forma earnings (losses)
for such Vessel based upon such charter-out (in the case of an Identified Pending Vessel, such pro
forma earnings (losses) shall be the Proportionate Amount of the pro forma earnings (losses) for
such Identified Pending Vessel utilizing the methodology set forth in this clause (i)), (ii) other
than in the case of an Other Pending Vessel, if a relevant Vessel is to be subject to a time
charter-out with a remaining term of between six and twelve months, apply for the period for which
the Fixed Charge Coverage Ratio is being calculated the annualized amount of pro forma earnings
(losses) for such Vessel based upon such charter-out, (in the case of an Identified Pending
Vessel, such pro forma earnings (losses) shall be the Proportionate Amount of the pro forma
earnings (losses) for such Identified Pending Vessel utilizing the methodology set forth in this
clause (ii)), (iii) other than in the case of an Other Pending Vessel, if a relevant Vessel is not
to be subject to a time charter-out, is under time charter-out that is due to expire in six months
or less, or is to be subject to charter



-12-









 







on a voyage charter basis (whether or not any such charter
is in place for such Vessel), then in each case, apply for the period for which the Fixed Charge
Coverage Ratio is being calculated earnings (losses) for such Vessel based upon the average of the
historical earnings of comparable Vessels in such Person’s fleet in the most recent four quarter
period (as determined in good faith by the chief financial officer of the Company) or if there is
no such comparable Vessel, then based upon industry average earnings for comparable Vessels (as
determined in good faith by the chief financial officer of the Company) (in the case of an
Identified Pending Vessel, such pro forma earnings (losses) shall be the Proportionate Amount of
the pro forma earnings (losses) for such Identified Pending Vessel utilizing the methodology set
forth in this clause (iii)) or (iv) if such Vessel is a Qualified Other Pending Vessel described in
clause (7)(b) of this definition then, include, to the extent that such Qualified Other Pending
Vessel has not been delivered to the Company or a Restricted Subsidiary or if so delivered has not
been deployed for the entire period for which the Fixed Charge Coverage Ratio is being calculated,
for such period (or the portion of such period during which such Qualified Other Pending Vessel was
not deployed if such Qualified Other Pending Vessel has been deployed but not for the entire
period) the Proportionate Amount of earnings (losses) for such Qualified Other Pending Vessel based
upon the contractual terms of such Qualified Other Pending Vessel’s charter-out agreement
applicable to the first twelve months following scheduled delivery of such Qualified Other Pending
Vessel (or the ratable amount of such Proportionate Amount of earnings (losses) to the extent the
Qualified Other Pending Vessel has been deployed but for less then the entire period (with the
actual earnings of such Qualified Other Pending Vessel being given effect to for the period
deployed to the extent otherwise included in the calculation of Consolidated Cash Flow). As used
herein, “Proportionate Amount of earnings (losses)” means the product of the earnings (losses)
referred to above and the percentage of the aggregate purchase price for such Vessel which has been
paid as of the relevant date of the determination of the Fixed Charge Coverage Ratio.



          Additionally, any pro forma calculations may include the reduction or increase in costs for
the applicable period resulting from, or in connection with, the acquisition of assets, an asset
sale or other transaction or event which is being given pro forma effect that (a) would be
permitted to be reflected on pro forma financial statements pursuant to Regulation S-X under the
Securities Act or (b) have been realized at the time such pro forma calculation is made or are
reasonably expected to be realized within twelve months following the consummation of the
transaction to which such pro forma calculations relate, which actions shall be certified by the
chief financial officer of the Company; provided that, in the case of adjustments pursuant to this
clause (b), such adjustments shall be set forth in a certificate signed by the Company’s chief
financial officer which states in detail (i) the amount of such adjustment or adjustments and (ii)
that such adjustment or adjustments are based on the reasonable good faith beliefs of the Company
at the time of such execution. Any such certificate shall be provided to the Trustee if the
Company or any Restricted Subsidiary incurs Indebtedness, issues Disqualified Stock or preferred
stock, makes any Restricted Payment or consummates any transaction described under Section 5.01
necessitating the calculation of the Fixed Charge Coverage Ratio.




          “Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:





     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued, (x) including, without limitation, amortization of
original issue discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of any Securitization Fees, the interest
component of all payments associated with Capital Lease Obligations and the net payments
made pursuant to Hedging
Obligations in respect of interest rates and (y) excluding amortization of deferred
financing fees, debt issuance costs and commissions, fees and expenses incurred in
connection with the incurrence of Indebtedness and any expensing of bridge, commitment and
other financing fees; plus



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     (2) the consolidated interest of such Person and its Restricted Subsidiaries that was
capitalized during such period; plus




     (3) any interest accruing on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon;
plus




     (4) all dividends accrued or paid on any series of Disqualified Stock or Designated
Preferred Stock of the Company or any Disqualified Stock or preferred stock of any
Restricted Subsidiary (other than any such Disqualified Stock, Designated Preferred Stock or
preferred stock held by the Company or a Wholly Owned Restricted Subsidiary or to the extent
paid in Qualified Equity Interests); plus




     (5) to the extent any Attributable Indebtedness is outstanding and is not a Capital
Lease Obligation, the amount of interest implicit in any payments related to such
Attributable Indebtedness during such period.



          “Forward Freight Agreement” means, with respect to any Person, any forward freight agreement
or comparable swap, future or similar agreement or arrangement relating to derivative trading in
freight or similar rates.




          “GAAP” means generally accepted accounting principles in the United States of America as in
effect on the Issue Date, as set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, in each case, as in effect on the Issue
Date, or in such other statements by such other entity as have been approved by a significant
segment of the accounting profession, in each case, as in effect on the Issue Date.




          “Government Securities” means direct obligations of, or obligations guaranteed by, the United
States of America, and the payment for which the United States pledges its full faith and credit.




          “guarantee” means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any manner including, without
limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness.




          “Guarantee” or “Note Guarantee” means the guarantee by each Guarantor of the Company’s
obligations under this Indenture and on the Notes, executed pursuant to the provisions of this
Indenture.




          “Guarantor” means each Subsidiary of the Company that executes a Guarantee in accordance with
the provisions of this Indenture and its successors and assigns, until such Subsidiary is released
from its Guarantee in accordance with the provisions of this Indenture.




          “Hedging Obligations” means, with respect to any Person, the obligations of such Person under
swap, cap, collar, forward purchase, Forward Freight Agreements or agreements or
arrangements similar to any of the foregoing and dealing with interest rates, currency exchange
rates, commodity prices or freight rates, either generally or under specific contingencies.




          “Heirs” of any individual means such individual’s estate, spouse, lineal relatives (including
adoptive descendants), administrator, committee or other personal representative or other estate



-14-









 







planning vehicle and any custodian or trustee for the benefit of any spouse or lineal relatives
(including adoptive descendants) of such individual.



          “Holder” means a Person in whose name a Note is registered on the books maintained by the
Registrar.




          “Indebtedness” of any Person at any date means, without duplication:





     (1) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof);




     (2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;




     (3) all reimbursement obligations of such Person in respect of letters of credit,
letters of guaranty, bankers’ acceptances and similar credit transactions;




     (4) all obligations of such Person representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months after such property is
acquired or such services are completed and which is treated as indebtedness under GAAP,
except any such balance that constitutes an accrued expense or trade payable, or similar
obligations to trade creditors incurred in the ordinary course of business;




     (5) all Capital Lease Obligations of such Person;




     (6) all Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;




     (7) all Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided that Indebtedness of the Company or its Subsidiaries that is guaranteed
by the Company or the Company’s Subsidiaries shall only be counted once in the calculation
of the amount of Indebtedness of the Company and its Subsidiaries on a consolidated basis;
provided further that Standard Securitization Undertakings in connection with a Qualified
Securitization Transaction shall not be considered to be a guarantee of Indebtedness;




     (8) all Attributable Indebtedness;




     (9) to the extent not otherwise included in this definition, Hedging Obligations of
such Person; and




     (10) all obligations of such Person under conditional sale or other title retention
agreements relating to assets purchased by such Person.



          Notwithstanding clause (4) above, the obligation of the Company or any Restricted Subsidiary
to pay the purchase price for an Exercised Vessel Purchase Option Contract entered into and
exercised in the ordinary course of business and consistent with past practices of the Company and
its Restricted Subsidiaries shall not constitute “Indebtedness” under clause (4) above even though
the purchase price therefor may be due more than six months after exercise thereof.




-15-









 








          “Indenture” means this Indenture, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof including, for all purposes of this Indenture and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this Indenture.




          “Independent Appraiser” means a Person:





     (1) that is (a) engaged in the business of appraising Vessels who is generally
acceptable to institutional lenders to the shipping industry or (b) if no Person described
in clause (i) is at such time generally providing appraisals of vessels (as determined in
good faith by the Company) then, an independent investment banking firm of international
standing qualified to perform such valuation (as determined in good faith by the Company);
and




     (2) who (a) is independent of the parties to the transaction in question and their
Affiliates and (b) is not connected with the Company, any of the Restricted Subsidiaries or
any of such Affiliates as an officer, director, employee, partner or person performing
similar functions.



          “Initial Purchasers” means Banc of America Securities LLC, J.P. Morgan Securities LLC,
Citigroup Global Markets Inc., S. Goldman Advisors LLC, Commerz Markets LLC, DVB Capital
Markets LLC and DnB NOR Markets Inc.




          “Intercompany Debt” means Indebtedness of an Mortgaged Vessel Guarantor to the extent issued
to or held by the Company or any Subsidiary of the Company.




          “interest” means, with respect to the Notes, interest and Additional Interest, if any, on the
Notes (regardless of whether so stated).




          “Interest Payment Date” means each May 1 and November 1 starting with May 1, 2011.




          “Investments” means, with respect to any Person, all direct or indirect investments by such
Person in other Persons in the forms of loans (including guarantees or other obligations), advances
or capital contributions, purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP but excluding extensions of trade
credit or advances, deposits and payments to or with suppliers, lessors or utilities or for
workers’ compensation in the ordinary course of business or prepaid expenses or deposits on the
balance sheet of such Person prepared in accordance with GAAP. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any Restricted
Subsidiary of the Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the Fair Market Value of
the Company’s Investments in such Subsidiary that were not sold or disposed of in an amount
determined as provided in Section 4.11(c). The acquisition by the Company or any Restricted
Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to
be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount
equal to the Fair Market Value of the Investments held by the acquired Person in such third Person
in an amount determined as provided in Section 4.11(c). Except as otherwise provided in this
Indenture, the amount of
an Investment shall be determined at the time the Investment is made and without giving effect
to subsequent changes in value.




          “Issue Date” means October 21, 2010, the date of the original issuance of the Notes under this
Indenture.





-16-









 








          “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind on such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention agreement, any lease
in the nature thereof, any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall an
operating lease that is not a Capital Lease Obligation be deemed to constitute a Lien.




          “Loan To Value Ratio — Actual” means, at any time, the ratio (determined before giving effect
to the issuance of any Additional Notes resulting in the requirement to calculate the “Loan To Vale
Ratio — Actual” and further excluding the proposed application of the proceeds thereof) of (x) the
aggregate principal amount of the Notes outstanding at such time to (y) the aggregate Fair Market
Value of all Collateral (including all Trust Monies) at such time.




          “Loan To Value Ratio — Additional Notes” means, at any time, in connection with the issuance
of Additional Notes, the ratio of (x) the aggregate principal amount of the Additional Notes to be
issued at such time outstanding at such time to (y) the sum of (I) the aggregate Fair Market Value
of all Collateral to be purchased by (or contributed to) one or more Mortgaged Vessel Guarantors
with the proceeds of the issuance of such Additional Notes and other funds available to the Company
on the date of issuance of such Additional Notes and (II) any cash proceeds from the issuance of
such Additional Notes and any other funds, in each case, deposited as Trust Monies in connection
with the issuance of such Additional Notes.




          “Make-Whole Redemption” has the meaning given in Section 5 of the Notes.




          “Make-Whole Redemption Date” with respect to a Make-Whole Redemption, means the date such
Make-Whole Redemption is effected.




          “Management Agreement” means the Management Agreement dated May 28, 2010, as amended as of
September 10, 2010 between the Company and Navios Tankers Management Inc., as such agreement may be
amended, modified, supplemented, replaced, extended or renewed from time to time in compliance with
clause (7) of Section 4.14(b).




          “Maturity Date” when used with respect to any Note, means the date on which the principal
amount of such Note becomes due and payable as therein or herein provided.




          “Moody’s” means Moody’s Investors Service, Inc. and its successors.




          “Mortgaged Vessel Guarantor” means a Guarantor that is the owner of one or more Mortgaged
Vessels.




          “Mortgaged Vessels” means (i) the Existing Mortgaged Vessels and (ii) any other Vessels made
subject to the Lien of the Security Documents in favor of the Collateral Trustee on behalf of the
Trustee for the benefit of the Holders pursuant to Article Eleven.




          “Net Proceeds” means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of fees, commissions, expenses and other direct costs relating to such Asset Sale,
including, without limitation, (a) fees and expenses related to such Asset Sale (including legal,
accounting and investment banking fees, title and recording tax fees and sales and brokerage
commissions, and any relocation expenses and severance or shutdown costs incurred as a result of
such Asset Sale), (b) all federal, state, provincial, foreign



-17-









 







and local taxes paid or payable as a
result of the Asset Sale, (c) amounts required to be applied to the repayment of Indebtedness,
other than Indebtedness under a Credit Facility, secured by a Lien incurred in compliance with the
terms of this Indenture and the Security Documents on the asset or assets that were the subject of
such Asset Sale, (d) amounts required to be paid to any Person (other than the Company or any of
its Restricted Subsidiaries) owning a beneficial interest in the assets which are subject to such
Asset Sale and (e) any escrow or reserve for adjustment in respect of the sale price of such assets
established in accordance with GAAP and any reserve in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the seller after such Asset Sale, including pension
and other post-employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale except to the
extent that such proceeds are released from any such escrow or to the extent such reserve is
reduced or eliminated.



          “Non-Recourse Debt” means Indebtedness:





     (1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness (other than, with respect to a Securitization Subsidiary, pursuant
to Standard Securitization Undertakings in connection with a Qualified Securitization
Transaction)), (b) is directly or indirectly liable as a guarantor or otherwise (other than,
with respect to a Securitization Subsidiary, pursuant to Standard Securitization Undertaking
in connection with a Qualified Securitization Transaction), or (c) constitutes the lender;
and




     (2) as to which the lenders have been notified in writing or have contractually agreed
that they shall not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries (other than, in the case of a Qualified Securitization Transaction,
the equity interests in, any Purchase Money Notes of and the assets of the applicable
Securitization Subsidiary).



          “Non-U.S. Person” has the meaning assigned to such term in Regulation S.




          “Notes” means, collectively, the Co-Issuers’ 8?% First Priority Ship Mortgage Notes due 2017
issued in accordance with Section 2.02 (whether issued on the Issue Date, issued as Additional
Notes, issued as Exchange Securities, issued as Private Exchange Securities or otherwise issued
after the Issue Date) treated as a single class of securities under this Indenture, as amended or
supplemented from time to time in accordance with the terms of this Indenture.




          “Obligations” means any principal, interest, penalties, fees, costs and expenses,
indemnifications, reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness.




          “Offering Memorandum” means the offering memorandum of the Co-Issuers relating to the Notes
issued on the Issue Date, dated October 6, 2010.




          “Officer” means, with respect to any Person, any of the following: the Chairman of the Board
of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, the Chief
Operating Officer, any Vice President, any Assistant Vice President, the Treasurer, any
Assistant Treasurer, the Secretary, any Assistant Secretary, the Controller or any other officer
designated by the relevant Board of Directors serving in a similar capacity.




          “Officers’ Certificate” means a certificate signed by two Officers.





-18-









 








          “Opinion of Counsel” means a written opinion from legal counsel that meets the requirements of
Sections 13.04 and 13.05. The counsel may be an employee of, or counsel to, the Co-Issuers, a
Guarantor or the Trustee. Opinions of Counsel required to be delivered under this Indenture may
have qualifications customary for opinions of the type required in the relevant jurisdiction or
related to the items covered by the opinion and counsel delivering such Opinions of Counsel may
rely on certificates of the Co-Issuers or government or other officials customary for opinions of
the type required, including certificates certifying as to matters of fact, including that various
covenants have been complied with.




          “pari passu Indebtedness” means any Indebtedness of the Co-Issuers or any Guarantor that ranks
pari passu in right of payment with the Notes or the Note Guarantees, as applicable.




          “Permitted Asset Swap” means the exchange of property or assets of the Company or any
Restricted Subsidiary for assets to be used by the Company or a Restricted Subsidiary in a
Permitted Business.




          “Permitted Business” means any business conducted by the Company or any of its Subsidiaries as
described in the Offering Memorandum and any businesses that, in the good faith judgment of the
Board of Directors of the Company, are reasonably related, ancillary, supplemental or complementary
thereto, or reasonable extensions thereof.




          “Permitted Flag Jurisdiction” means any of the Republic of the Marshall Islands, the Republic
of Liberia, the Republic of Panama, Greece, Malta, the Republic of Cyprus, the Commonwealth of the
Bahamas, the British Virgin Islands and the Hong Kong Special Administrative Region of the People’s
Republic of China and any other jurisdiction generally acceptable to institutional lenders in the
shipping industry, as determined in good faith by the Board of Directors.




          “Permitted Hedging Obligations” means, at any time, Hedging Obligations designed to manage
interest rates or interest rate risk or protect against fluctuations in currency exchange rates,
commodity prices or freight rates and not for speculative purposes (all as determined by the
Company on the date of entering into such Hedging Obligation). Forward Freight Agreements entered
into by the Company in its good faith determination for the purpose of hedging available days
against fluctuations in freight rates (as so determined by the Company on the date of entering into
such Forward Freight Agreement) shall be deemed to have been entered into not for speculative
purposes and shall qualify as “Permitted Hedging Obligations” for all purposes under this
Indenture.




          “Permitted Holders” means each of: (a) Navios Maritime Holdings Inc., a Marshall Islands
corporation (“Holdings”), or any Subsidiary of Holdings for so long as it remains a Subsidiary of
Holdings and (b) (i) Angeliki Frangou; (ii) each of her spouse, siblings, ancestors, descendants
(whether by blood, marriage or adoption, and including stepchildren) and the spouses, siblings,
ancestors and descendants thereof (whether by blood, marriage or adoption, and including
stepchildren) of such natural persons, the beneficiaries, estates and legal representatives of any
of the foregoing, the trustee of any bona fide trust of which any of the foregoing, individually or
in the aggregate, are the majority in interest beneficiaries or grantors, and any corporation,
partnership, limited liability company or other Person in
which any of the foregoing, individually or in the aggregate, own or control a majority in
interest; and (iii) all Affiliates controlled by the Persons named in clauses (i) and (ii) above.




          “Permitted Investments” means:





     (1) any Investment in cash or Cash Equivalents;



-19-









 






     (2) any Investment in a Co-Issuer or in a Guarantor;




     (3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:




     (a) such Person becomes a Guarantor; or




     (b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into, a
Co-Issuer or a Guarantor;




     (4) any Investment made as a result of the receipt of non-cash consideration from an
asset sale that was made pursuant to and in compliance with Section 4.13;




     (5) any Investment made for consideration consisting of Qualified Equity Interests of
the Company;




     (6) any Investments received in compromise, settlement or resolution of (A) obligations
of trade creditors or customers, including, without limitation, pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes with Persons who are
not Affiliates;




     (7) Investments represented by Permitted Hedging Obligations;




     (8) Investments in existence on the Issue Date;




     (9) Investments in prepaid expenses, negotiable instruments held for collection and
lease, endorsements for deposit or collection in the ordinary course of business, utility or
workers’ compensation, performance and similar deposits entered into as a result of the
operations of the business in the ordinary course of business;




     (10) loans and advances to employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business not to exceed $7.5 million at any one time
outstanding;




     (11) payroll, travel and similar advances made in the ordinary course of business to
cover matters that are expected at the time of such advances to be treated as expenses in
accordance with GAAP;




     (12) Investments held by a Person at the time such Person becomes a Restricted
Subsidiary of the Company or is merged into the Company or a Restricted Subsidiary of the
Company and not made in contemplation of such Person becoming a Restricted Subsidiary or
merger;




     (13) any Investment by the Company or any Restricted Subsidiary in a Securitization
Subsidiary (including, without limitation, the payment of Securitization Fees in connection
with a
Qualified Securitization Transaction) or any Investment by a Securitization Subsidiary
in any other Person in connection with a Qualified Securitization Transaction (including
Investments of funds held in accounts required by customary arrangements governing such
Qualified Securitization Transaction in the manner required by such arrangements), so long
as any Investment in a Securitization Subsidiary is in the form of a Purchase Money Note, a
contribution of additional Securitization Assets or an Equity Interest;



-20-









 






     (14) Investments in any Person engaged in a Permitted Business the Fair Market Value of
which, when taken together with all other Investments made pursuant to this clause (14)
since the Issue Date and that remain outstanding, do not exceed the greater of (x) $20.0
million and (y) 2.0% of Total Tangible Assets;




     (15) Investments in Unrestricted Subsidiaries the Fair Market Value of which, when
taken together with all other Investments made pursuant to this clause (15) since the Issue
Date and that remain outstanding, do not exceed the greater of (x) $20.0 million and (y)
2.0% of Total Tangible Assets;




     (16) other Investments in any Person having an aggregate Fair Market Value, when taken
together with all other Investments made pursuant to this clause (16) that are at the time
outstanding, not to exceed the greater of (x) $35.0 million and (y) 3.5% of Total Tangible
Assets; and




     (17) Investments in one or more Designated MLPs, the Fair Market Value of which, when
taken together with all other Investments made pursuant to this clause (17) since the Issue
Date and that remain outstanding, do not exceed the sum of (x) the greater of (I) $100.0
million and (II) 10.0% of Total Tangible Assets and (y) provided that the Company shall have
elected to exclude such cash distributions from Consolidated Net Income as provided for in
clause (10) of the definition thereof, the amount of cash distributions received from such
Designated MLPs since the Issue Date.



          “Permitted Liens” means:





     (1) Liens on assets and property of the Company or any of its Subsidiaries securing
Indebtedness and other related Obligations under Credit Facilities in an aggregate amount at
any time outstanding not to exceed $150.0 million; provided that no such Liens shall extend
to any assets or property constituting Collateral;




     (2) Liens in favor of the Company or any of its Restricted Subsidiaries;




     (3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated or amalgamated with the Company or any Restricted Subsidiary of the
Company; provided that such Liens were not created in connection with such merger,
consolidation or amalgamation and do not extend to any assets other than those of the Person
merged into or consolidated or amalgamated with the Company or the Restricted Subsidiary;
provided further that no such Liens shall extend to any assets or property constituting
Collateral;




     (4) Liens on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Restricted Subsidiary of the Company; provided that such
Liens were not incurred in connection with such acquisition; provided further that no such
Liens shall extend to any assets or property constituting Collateral;




     (5) Liens incurred or deposits in connection with workers’ compensation, employment
insurance or other types of social security, including Liens securing letters of credit
issued in the ordinary course of business or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations including those arising from regulatory,
contractual or warranty requirements of the Company and its Subsidiaries, including rights
of offset and setoff (in each case exclusive of obligations for the payment of borrowed
money);



-21-









 






     (6) Liens securing (i) Indebtedness incurred pursuant to clause (4) of Section 4.10(b)
covering only the assets acquired with or financed by such Indebtedness; provided that no
such Liens shall extend to any assets or property constituting Collateral;




     (7) Liens securing Indebtedness incurred to finance (A) the construction, purchase or
lease of, or repairs, improvements or additions to, one or more Vessels and any Related
Assets or (B) the Capital Stock of a Person the assets of which include one or more Vessels
and any Related Assets (and, in each case, Liens securing Indebtedness that refinances or
replaces any such Indebtedness); provided, however, that, (i) except as provided in clauses
(ii) and (iii) below and except to the extent that any portion of such Indebtedness is
secured by a Lien incurred and outstanding pursuant to another clause of this definition of
“Permitted Liens” or otherwise in compliance with Section 4.12, the principal amount of
Indebtedness secured by such a Lien in respect of this clause (7) does not exceed (x) with
respect to Indebtedness incurred to finance the construction of such Vessel(s) or Related
Assets, 80%, without duplication, of the sum of (1) the contract price pursuant to the
Vessel Construction Contract(s) for such Vessel(s) plus, without duplication, the Fair
Market Value of any Related Assets and (2) any other ready for sea cost for such Vessel(s)
or Related Assets (as determined in good faith by the Company), and (y) with respect to
Indebtedness incurred to finance the acquisition of such Vessel(s), Related Assets or
Person, 80% of the Fair Market Value of such Vessel(s), Related Assets or the Vessel and
Related Assets of such Person at the time such Lien is incurred, (ii) in the case of
Indebtedness that matures within nine months after the incurrence of such Indebtedness
(other than any Permitted Refinancing Indebtedness of such Indebtedness or Indebtedness that
matures within one year prior to the Stated Maturity of the Notes), the principal amount of
Indebtedness secured by such a Lien shall not exceed the Fair Market Value of such, without
duplication, Vessel(s), Related Assets or the Vessel and Related Assets of such Person at
the time such Lien is incurred, and (iii) in the case of Indebtedness representing Capital
Lease Obligations relating to a Vessel or Related Assets, the principal amount of
Indebtedness secured by such a Lien shall not exceed 100% of the sum of (1), without
duplication, the Fair Market Value of such Vessel or Related Assets at the time such Lien is
incurred and (2) any ready for sea cost for such Vessel or Related Assets (as determined in
good faith by the Company); provided further that no such Liens shall extend to any assets
or property constituting Collateral;




     (8) Liens arising from Uniform Commercial Code financing statements filings or other
applicable similar filings regarding operating leases and vessel charters entered into by
the Company and its Restricted Subsidiaries in the ordinary course of business;




     (9) Liens incurred in the ordinary course of business of the Company or any Restricted
Subsidiary arising from Vessel chartering, drydocking, maintenance, repair, refurbishment or
replacement, the furnishing of supplies and bunkers to Vessels and Related Assets, repairs
and improvements to Vessels and Related Assets, masters’, officers’ or crews’ wages and
maritime Liens and any other Liens (other than Liens in respect of Indebtedness) incurred in
the ordinary course of operation of a Vessel; provided that in the case of a Charter of a
Mortgaged Vessel, such Lien is subject to the Lien of this Indenture and the Security
Documents;




     (10) Liens for general average and salvage;




     (11) Liens existing on the Issue Date and Liens in respect of Indebtedness incurred
after the Issue Date under all Credit Facilities (including, without limitation, the Credit
Agreement) outstanding or committed to on the Issue Date (including without limitation the
Commitment Letter) (or any replacement of any such committed amounts) to the extent such
Indebtedness is deemed incurred in reliance on clause (2) of the definition of “Permitted
Debt” pursuant to the



-22-









 







second sentence of Section 4.10(c) and, in the case of the Mortgaged
Vessels as of the Issue Date, disclosed in the Offering Memorandum (after giving effect to
the application of the proceeds from the Notes on the Issue Date);




     (12) Liens for taxes, assessments or governmental charges or claims that are not yet
due or that are being contested in good faith by appropriate proceedings promptly instituted
and diligently concluded; provided that any reserve or other appropriate provision as is
required in conformity with GAAP has been made therefor;




     (13) (x) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s,
suppliers’ and mechanics’ Liens, in each case, incurred in the ordinary course of business
and (y) other Liens arising by operation of law covered by insurance including any
deductibles thereon;




     (14) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property that do not
materially adversely affect the operation of the business of the Company and its Restricted
Subsidiaries, taken as a whole;




     (15) Liens securing (a) the Notes or the Guarantees issued on the Issue Date (and any
Exchange Securities or Private Exchange Securities and related Guarantees issued pursuant to
the terms of the Registration Rights Agreement) or payment obligations to the Trustee and
(b) Additional Notes; provided that, in the case of this clause (b), immediately after
giving effect to the incurrence of such Additional Notes, the Loan To Value Ratio —
Additional Notes is less than the lesser of (i) 0.75 to 1.0 and (ii) 1.1 times the Loan To
Value Ratio — Actual at such time;




     (16) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred
under this Indenture; provided, however, that such Liens (a) are not materially more
favorable to the lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being refinanced, and (b) do not extend to or cover any property or assets of
the Company or any of its Restricted Subsidiaries not securing the Indebtedness so
refinanced (other than (x) any improvements or accessions to such property or assets or any
items which constitute Related Assets with respect to such underlying property or assets
securing the Indebtedness so refinanced or (y) any Lien on additional property or assets
which Lien would have been permitted under Section 4.12 in respect of the Indebtedness being
refunded, refinanced, replaced, defeased or discharged by such Permitted Refinancing
Indebtedness at the time such prior Indebtedness was initially incurred by the Company or
such Restricted Subsidiary);




     (17) Liens arising by reason of any judgment, decree or order of any court not giving
rise to an Event of Default;




     (18) Liens and rights of setoff in favor of a bank imposed by law and incurred in the
ordinary course of business on deposit accounts maintained with such bank and cash and Cash
Equivalents in such accounts;




     (19) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;



-23-









 






     (20) Liens securing Permitted Hedging Obligations which Permitted Hedging Obligations
relate to Indebtedness that is otherwise permitted under this Indenture; provided, however,
that no such Liens shall extend to any assets or property constituting Collateral;




     (21) Liens arising under a contract over goods, documents of title to goods and related
documents and insurances and their proceeds, in each case in respect of documentary credit
transactions entered into in the ordinary course of business;




     (22) Liens arising under any retention of title, hire, purchase or conditional sale
arrangement or arrangements having similar effect in respect of goods supplied to the
Company or a Restricted Subsidiary in the ordinary course of business;




     (23) Liens on Securitization Assets transferred to a Securitization Subsidiary or on
assets of a Securitization Subsidiary or pledges of the equity interests in or Purchase
Money Notes of a Securitization Subsidiary, in each case, in connection with a Qualified
Securitization Transaction;




     (24) any extension, renewal or replacement, in whole or in part, of any Lien described
in the foregoing clauses (1) through (23); provided that any such extension, renewal or
replacement is no more restrictive in any material respect that the Lien so extended,
renewed or replaced and does not extend to any additional property or assets; and




     (25) Liens incurred by the Company or any Restricted Subsidiary of the Company with
respect to obligations that do not exceed $30.0 million at any one time outstanding;
provided that not greater than $10.0 million of such obligations may be secured by Liens on
any assets or property constituting Collateral.



          For purposes of determining what category of Permitted Lien that any Lien shall be included
in, the Company in its sole discretion may classify such Lien on the date of its incurrence and
later reclassify all or a portion of such Lien in any manner that complies with this definition.
Notwithstanding the foregoing, the Company shall not and shall not permit any Restricted Subsidiary
to, directly or indirectly, create , incur, assume or suffer to exist any Lien on any Capital
Stock, Intercompany Debt or other securities issued by any Mortgaged Vessel Guarantor other than in
favor of the Collateral Trustee on behalf of the Trustee for the benefit of the Holders.




          “Permitted Refinancing Indebtedness” means any Indebtedness, Disqualified Stock or preferred
stock of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to refund, refinance, replace, defease or discharge, other Indebtedness,
Disqualified Stock or preferred stock of the Company or any of its Restricted Subsidiaries;
provided that, in the case of Indebtedness which is not being used to concurrently refinance or
defease the Notes in full:





     (1) the principal amount (or accreted value, if applicable) or mandatory redemption
amount of such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) or mandatory redemption amount, plus accrued interest or
dividends in connection therewith, of the Indebtedness, Disqualified Stock or preferred
stock extended, refinanced, renewed, replaced, defeased or refunded (plus all dividends and
accrued interest on
such Indebtedness, Disqualified Stock or preferred stock and the amount of all fees,
expenses, premiums and other amounts incurred in connection therewith);




     (2) such Permitted Refinancing Indebtedness has a final maturity or final Redemption
Date either (i) no earlier than the final maturity or final Redemption Date of the
Indebtedness



-24-









 







being extended, refinanced, renewed, replaced, defeased or refunded or (ii)
after the Maturity Date;




     (3) the portion, if any, of the Indebtedness, Disqualified Stock or preferred stock
being extended, refinanced, renewed, replaced, defeased or refunded has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness, Disqualified Stock or preferred stock being extended, refinanced, renewed,
replaced, defeased or refunded;




     (4) if the Indebtedness, Disqualified Stock or preferred stock being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes or a Guarantee, such Permitted Refinancing Indebtedness is subordinated in right
of payment to the Notes or a Guarantee on terms at least as favorable to the Holders as
those contained in the documentation governing the Indebtedness, Disqualified Stock or
preferred stock being extended, refinanced, renewed, replaced, defeased or refunded; and




     (5) such Indebtedness is incurred either by (i) if a Restricted Subsidiary that is not
a Guarantor is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded, any Restricted Subsidiary that is not a Guarantor or
(ii) the Company or Guarantor (or any Restricted Subsidiary that becomes a Guarantor in
contemplation of or upon the incurrence of such Permitted Refinancing Indebtedness).



          For all purposes of this Indenture, Indebtedness, Disqualified Stock or preferred stock of the
Company or any of its Restricted Subsidiaries (collectively, the “Replacement Indebtedness”) may in
the Company’s discretion be deemed to replace other Indebtedness, Disqualified Stock or preferred
stock of the Company or any of its Restricted Subsidiaries (collectively, the “Replaced
Indebtedness”) if such Replacement Indebtedness satisfies the requirements of clauses (1) through
(5) above and (x) is incurred no later than 180 days of the date on which the Replaced Indebtedness
was repaid, redeemed, defeased or discharged and (y) if the proceeds of the Replaced Indebtedness
were primarily utilized to finance or refinance the acquisition of one or more Vessels, then
substantially all of the net proceeds from such Replacement Indebtedness must be used to finance or
refinance the acquisition of assets used or useful in a Permitted Business (including, without
limitation, Vessels and Related Assets, which need not be the same Vessel or Vessels or Related
Assets which were financed or refinanced with the Replaced Indebtedness).




          “Permitted Repairs” means, with respect to any newly acquired second-hand Vessel, repairs
which, in the reasonable judgment of the Company, are required to be made to such Vessel upon
acquisition and which are made within 120 days of the acquisition thereof.




          “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.




          “principal” means, with respect to the Notes, the principal of and premium, if any, on the
Notes.




          “Private Exchange Securities” shall have the meaning specified in the Registration Rights
Agreement.




          “Private Placement Legend” means the legends in the form set forth in Exhibit B to be
placed on the Notes except where otherwise permitted by the provisions of this Indenture.





-25-











 





          “Purchase Money Note” means a promissory note of a Securitization Subsidiary to the Company or
any Restricted Subsidiary of the Company, which note (a) must be repaid from cash available to the
Securitization Subsidiary, other than amounts required to be established as reserves, amounts paid
to investors in respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated or newly acquired Securitization
Assets and (b) may be subordinated to the payments described in clause (a).




          “Qualified Collateral” means one or more Qualified Vessels and/or cash and Cash Equivalents,
the aggregate Fair Market Value of which is at least equal to the Appraised Value of the Mortgaged
Vessel or Mortgaged Vessels for which such Qualified Collateral is being substituted.




          “Qualified Equity Interests” means Equity Interests of the Company other than Disqualified
Stock.




          “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A under
the Securities Act.




          “Qualified Securitization Transaction” means any transaction or series of transactions entered
into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or such
Restricted Subsidiary sells, contributes, conveys or otherwise transfers to (a) a Securitization
Subsidiary (in the case of a transfer by the Company or any of its Restricted Subsidiaries) and (b)
any other Person (in the case of a transfer by a Securitization Subsidiary), or transfers an
undivided interest in or grants a security interest in, any Securitization Assets (whether now
existing or arising in the future) of the Company or any of its Restricted Subsidiaries, and any
assets related thereto, including, without limitation, all collateral securing such Securitization
Assets, all contracts and all guarantees or other obligations in respect of such Securitization
Assets, proceeds of such Securitization Assets and all other assets which are customarily
transferred or in respect of which security interests are customarily granted in connection with a
securitization transaction of such type; provided such transaction is on market terms at the time
the Company or such Restricted Subsidiary enters into such transaction.




          “Qualified Vessel” means, as of any date, a Vessel which (i) is not a Mortgaged Vessel as of
such date and (ii) is to be owned by the Company or a Mortgaged Vessel Guarantor.




          “Record Date” means the applicable Record Date specified in the Notes; provided that if any
such date is not a Business Day, the Record Date shall be the first day immediately succeeding such
specified day that is a Business Day.




          “Redemption Date,” when used with respect to any Note to be redeemed, means the date fixed for
such redemption pursuant to this Indenture and the Notes.




          “Redemption Price,” when used with respect to any Note to be redeemed on a Redemption Date,
means the price fixed for such redemption pursuant to and in accordance with this Indenture,
exclusive of accrued and unpaid interest and Additional Interest, if any, thereon to the Redemption
Date, unless otherwise specifically provided herein.




          “Registration Rights Agreement” means (i) the Registration Rights Agreement dated as of the
Issue Date among the Company, the Guarantors and the Initial Purchasers and (ii) any other exchange
and registration rights agreement entered into in connection with an issuance of Additional Notes
in a private offering after the Issue Date.




          “Regulation S” means Regulation S under the Securities Act.




-26-









 








          “Regulation S-X” means Regulation S-X under the Securities Act.




          “Related Asset” means (i) any insurance policies and contracts from time to time in force with
respect to a Vessel, (ii) the Capital Stock of any Restricted Subsidiary of the Company owning a
Vessel and related assets, (iii) any requisition compensation payable in respect of any compulsory
acquisition of a Vessel, (iv) any earnings derived from the use or operation of a Vessel and/or any
earnings account with respect to such earnings, (v) any charters, operating leases, contracts of
affreightment, Vessel purchase options and related agreements entered and any security or guarantee
in respect of the charterer’s or lessee’s obligations under such charter, lease, Vessel purchase
option or agreement, (vi) any cash collateral account established with respect to a Vessel pursuant
to the financing arrangement with respect thereto, (vii) any building, conversion or repair
contracts relating to a Vessel and any security or guarantee in respect of the builder’s
obligations under such contract and (viii) any security interest in, or agreement or assignment
relating to, any of the foregoing or any mortgage in respect of a Vessel and any asset reasonably
related, ancillary or complementary thereto.




          “Responsible Officer” means, when used with respect to the Trustee, any officer in the
Corporate Trust Office of the Trustee, including any vice president, assistant vice president,
trust officer, assistant trust officer or any other officer of the Trustee who currently performs
functions similar to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such officer’s knowledge
of and familiarity with the particular subject and shall also mean any officer who shall have
direct responsibility for the administration of this Indenture.




          “Restricted Investment” means an Investment other than a Permitted Investment.




          “Restricted Security” means a Note that constitutes a “Restricted Security” within the meaning
of Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.




          “Restricted Subsidiary” of a Person means any Subsidiary of such Person that is not an
Unrestricted Subsidiary.




          “Rule 144A” means Rule 144A under the Securities Act.




          “S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc.,
and its successors.




          “Sale/Leaseback Transaction” means any arrangement with any Person or to which any such Person
is a party providing for the leasing to the Company or a Subsidiary of the Company of any property,
whether owned by the Company or any of its Subsidiaries at the Issue Date or later acquired, which
has been or is to be sold or transferred by the Company or any of its Subsidiaries to such Person
or to any other Person from whom funds have been or are to be advanced by such Person on the
security of such property.




          “SEC” means the U.S. Securities and Exchange Commission.




          “Secured Indebtedness” means any Indebtedness (other than Subordinated Indebtedness) of the
Company or a Restricted Subsidiary of the Company secured by a Lien on any of its assets.




-27-









 








          “Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute
or statutes thereto and, in each case, the rules and regulations promulgated by the SEC thereunder.




          “Securitization Assets” means any accounts receivable, instruments, chattel paper, contract
rights, general intangibles or revenue streams subject to a Qualified Securitization Transaction
and any assets related thereto (other than Vessels), including, without limitation, all collateral
securing such assets, all contracts and all guarantees or other supporting obligations in respect
of such assets and all proceeds of the forgoing.




          “Securitization Fees” means all yield, interest or other payments made directly or by means of
discounts with respect to any interest issued or sold in connection with, and other fees paid to a
Person that is not a Securitization Subsidiary in connection with, any Qualified Securitization
Transaction.




          “Securitization Repurchase Obligation” means any obligation of a seller of Securitization
Assets in a Qualified Securitization Transaction to repurchase Securitization Assets arising as a
result of a breach of Standard Securitization Undertakings, including as a result of a
Securitization Asset or portion thereof becoming subject to any asserted defense, dispute, offset
or counterclaim of any kind as a result of any action taken by, any failure to take action by or
any other event relating to, the seller.




          “Securitization Subsidiary” means a Subsidiary of the Company (or another Person formed for
the purposes of engaging in a Qualified Securitization Transaction in which the Company or any
Subsidiary of the Company makes an Investment and to which the Company or any Subsidiary of the
Company transfers Securitization Assets and related assets):





     (1) that is formed solely for the purpose of, and that engages in no activities other
than activities in connection with, financing Securitization Assets of the Company and/or
its Restricted Subsidiaries, and any activities incidental thereto;




     (2) that is designated by the Board of Directors of the Company or such other Person as
a Securitization Subsidiary pursuant to a Board Resolution set forth in an Officers’
Certificate and delivered to the Trustee;




     (3) that, other than Securitization Assets, has total assets at the time of such
creation and designation with a book value of $10,000 or less;




     (4) has no Indebtedness other than Non-Recourse Debt;




     (5) with which neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than contracts, agreements,
arrangements and understandings on terms not materially less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from Persons that
are not Affiliates of the Company in connection with a Qualified Securitization Transaction
(as determined in good faith by the Company) and Securitization Fees payable in the ordinary
course of business in connection with such a Qualified Securitization Transaction; and




     (6) with respect to which neither the Company nor any Restricted Subsidiary of the
Company has any obligation (a) to make any additional capital contribution (other than
Securitization Assets) or similar payment or transfer thereto or (b) to maintain or preserve
the solvency or any balance sheet term, financial condition, level of income or results of
operations thereof.



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          “Security Agreements” means (i) each Assignment of Freights and Hires and (ii) each Assignment
of Insurance.




          “Security Documents” means the Ship Mortgages and the Security Agreements.




          “Security Interests” means the Lien on the Collateral created by the Security Documents and
this Indenture in favor of the Collateral Trustee on behalf of the Trustee for the benefit of the
Holders.




          “Ship Mortgage” means either the first preferred ship mortgage or first priority statutory
mortgage and related deed of covenants, in each case, on each of the Mortgaged Vessels granted by a
Mortgaged Vessel Guarantor to the Collateral Trustee and dated on or before the Issue Date or a
Vessel Tender Date, as the case may be, as amended from time to time in accordance with the terms
of this Indenture and such Ship Mortgages, which in the case of (i) the Hong Kong Ship Mortgage
shall be substantially in the form of Exhibit F hereto and (ii) any other Ship Mortgage
from time to time established under the terms of any other jurisdiction, including any Ship
Mortgage in connection with the transfer or change of flag to a Permitted Flag Jurisdiction, shall
be substantially in the form of Exhibit F hereto.




          “Significant Subsidiary” means any Subsidiary that would be a “significant subsidiary” as
defined in Article 1, Rule 1-02(w) of Regulation S-X, promulgated pursuant to the Securities Act,
as such Regulation is in effect on the Issue Date.




          “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Restricted Subsidiary of the Company which have been
determined by the Company in good faith to be reasonably customary in Qualified Securitization
Transactions, including, without limitation, those relating to the servicing of the assets of a
Securitization Subsidiary, it being understood that any Securitization Repurchase Obligation shall
be deemed to be a Standard Securitization Undertaking.




          “Stated Maturity” means, with respect to any installment of principal on any series of
Indebtedness, the date on which the payment of principal was scheduled to be paid in the
documentation governing such Indebtedness as of the Issue Date (or, if incurred after the Issue
Date, as of the date of the initial incurrence thereof) and shall not include any contingent
obligations to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.




          “Subordinated Indebtedness” means Indebtedness of a Co-Issuer or any Guarantor that is
subordinated in right payment to the Notes or the Note Guarantees of such Guarantor, as the case
may be.




          “Subsidiary” means, with respect to any specified Person:





     (1) any corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or Trustees of the
corporation, association or other business entity is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of such Person (or a
combination thereof); and




     (2) any other Person of which at least a majority of the voting interest (without
regard to the occurrence of any contingency) is at the time directly or indirectly owned by
such Person or one or more Subsidiaries of such Person (or a combination thereof).



-29-









 





          “Tax” shall mean any tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and any other liabilities related thereto).




          “Taxing Authority” shall mean any government or political subdivision or territory or
possession of any government or any authority or agency therein or thereof having power to tax.




          “Total Tangible Assets” means the total consolidated assets, less goodwill and intangibles, of
the Company and its Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company prepared in accordance with GAAP.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect on the
date on which this Indenture is qualified under the Trust Indenture Act, except as otherwise set
forth in this Indenture.




          “Trustee” means the party named as such in the preamble to this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and thereafter means such
successor.




          “Unrestricted Subsidiary” means any Subsidiary of the Company that is designated by the Board
of Directors of the Company as an Unrestricted Subsidiary pursuant to a Board Resolution, but only
to the extent that such Subsidiary:





     (1) has no Indebtedness other than Non-Recourse Debt;




     (2) except as permitted by Section 4.14 is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding are not
materially less favorable to the Company or such Restricted Subsidiary than those that might
be obtained at the time from Persons who are not Affiliates of the Company;




     (3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to make any additional capital
contributions (other than, with respect to a Securitization Subsidiary, Securitization
Assets transferred in connection with a Qualified Securitization Transaction) or similar
payment or transfer thereto or (b) to maintain or preserve the solvency or any balance sheet
term, financial condition, level of income or results of operations thereof; and




     (4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.



          Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers’ Certificate certifying that such designation complied
with the preceding conditions and was permitted by Section 4.11. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date
under Section 4.10, the Company shall be in default of
such Section. The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (1) such Indebtedness is permitted




-30-









 




under Section 4.10, calculated on a pro forma basis
as if such designation had occurred at the beginning of the four-quarter reference period; and (2)
no Default or Event of Default would be in existence immediately following such designation.




          “U.S. Legal Tender” means such coin or currency of the United States of America that at the
time of payment shall be legal tender for the payment of public and private debts.




          “U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than
U.S. dollars, at any time for the determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as quoted by Reuters at
approximately 10:00 A.M. (New York time) on the date not more than two Business Days prior to such
determination.




          “Vessel” means one or more shipping vessels whose primary purpose is the maritime
transportation of cargo (including but not limited to crude oil) or which are otherwise engaged,
used or useful in any business activities of the Company and its Restricted Subsidiaries and which
are owned by and registered (or to be owned by and registered) in the name of the Company or any of
its Restricted Subsidiaries or operated or to be operated by the Company or any of its Restricted
Subsidiaries pursuant to a lease or other operating agreement constituting a Capital Lease
Obligation, in each case together with all related spares, equipment and any additions or
improvements.




          “Vessel Construction Contract” means any contract for the construction (or construction and
acquisition) of a Vessel and any Related Assets entered into by the Company or any Restricted
Subsidiary, including any amendments, supplements or modifications thereto or change orders in
respect thereof.




          “Vessel Purchase Option Contract” means any contract granting the Company or any Restricted
Subsidiary the option to purchase one or more Vessels and any Related Assets, including any
amendments, supplements or modifications thereto.




          “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at
the time entitled to vote in the election of the Board of Directors of such Person.




          “Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified
Stock or preferred stock at any date, the number of years obtained by dividing:





     (1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of such Indebtedness or
redemption or similar payment in respect of such Disqualified Stock or preferred stock, by
(b) the number of years (calculated to the nearest one-twelfth) that shall elapse between
such date and the making of such payment; by




     (2) the then outstanding principal amount of such Indebtedness or the maximum amount
payable upon maturity of, or pursuant to any mandatory redemption provisions of, amount of
such Disqualified Stock or preferred stock.



          “Wholly Owned Restricted Subsidiary” of any Person means a Restricted Subsidiary of such
Person, all of the outstanding Equity Interests of which (other than directors’ qualifying shares
or shares required by applicable law to be held by a Person other than the Company or any of its
Subsidiaries) are at the time owned by such Person or another Wholly Owned Restricted Subsidiary of
such Person.




-31-









 







SECTION 1.02. Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section
	“144A Global Note”
	 	 	2.01	 
	“Additional Amounts”
	 	 	4.20	(b)
	“Additional Interest Notice” 
	 	 	4.19	 
	“Additional Notes”
	 	 	2.02	 
	“Affiliate Transaction”
	 	 	4.14	(a)
	“Asset Sale Offer”
	 	 	4.13	(I)(e)
	“Asset Sale Offered Price”
	 	 	4.13	(I)(e)
	“Asset Sale Payment Date”
	 	 	4.13	(I)(f)(2)
	“Authentication Order”
	 	 	2.02	 
	“Base Currency”
	 	 	13.16	(b)(1)(A)
	“Change of Control Offer”
	 	 	4.09	 
	“Change of Control Payment”
	 	 	4.09	 
	“Change of Control Payment Date”
	 	 	4.09	 
	“Co-Issuer”
	 	Preamble
	“Co-Issuer Process Agent”
	 	 	13.15	(a)
	“Collateral Account”
	 	 	12.01	 
	“Collateral Proceeds Reinvestment Termination Date”
	 	4.13	(II)(c)
	“Collateral Sale Offer”
	 	4.13	(II)(d)
	“Collateral Sale Offered Price”
	 	4.13	(II)(d)
	“Collateral Sale Payment Date”
	 	4.13	(II)(f)(2)
	“Collateral Trustee”
	 	Preamble
	“Company”
	 	Preamble
	“Covenant Defeasance”
	 	 	8.04	 
	“Event of Default”
	 	 	6.01	 
	“Event of Loss Offer”
	 	 	4.21	(d)
	“Event of Loss Offered Price”
	 	 	4.21	(d)
	“Event of Loss Payment Date”
	 	 	4.21	(f)(2)
	“Excess Collateral Proceeds”
	 	4.13	(II)(d)
	“Excess Loss Proceeds”
	 	 	4.21	(d)
	“Excess Loss Proceeds Payment Amount”
	 	 	4.21	(d)
	“Excess Collateral Proceeds Payment Amount”
	 	4.13	(II)(d)
	“Excess Proceeds”
	 	 	4.13	(I)(e)
	“Excess Proceeds Payment Amount”
	 	 	4.13	(I)(e)
	“Global Note”
	 	 	2.01	 
	“Guarantee Obligations”
	 	 	10.01	 
	“incur”
	 	 	4.10	(a)
	“Initial Global Notes”
	 	 	2.01	 
	“Initial Notes”
	 	 	2.02	 
	“Judgment Currency”
	 	 	13.16	(b)(1)(A)
	“Legal Defeasance”
	 	 	8.03	 
	“Loss Proceeds Reinvestment Termination Date”
	 	 	4.21	(c)
	“Loss Redemption Amount”
	 	 	4.21	(a)
	“Lost Mortgaged Vessel”
	 	 	4.21	(a)
	“Navios Acquisition Finance”
	 	Preamble
	“Notation of Guarantee”
	 	 	10.03	 
	“Notice of Acceleration”
	 	 	6.02	 
	“Parallel Debt”
	 	 	11.13	(a)






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	Term	 	Defined in Section
	“Participants”
	 	 	2.15	(a)
	“Paying Agent”
	 	 	2.03	 
	“Payment Default”
	 	 	6.01	(6)(a)
	“Permitted Debt”
	 	 	4.10	(b)
	“Physical Notes”
	 	 	2.01	 
	“Primary Lien”
	 	 	4.12	(a)(2)
	“Process Agent”
	 	 	13.15	(b)
	“rate of exchange”
	 	 	13.16	(d)
	“Registrar”
	 	 	2.03	 
	“Regulation S Global Note”
	 	 	2.01	 
	“Related Agreements”
	 	4.13	(II)(a)(2)
	“Release Notice”
	 	 	11.04	(a)
	“Release Transaction”
	 	 	11.04	(a)
	“Released Monies”
	 	 	12.02	 
	“Relevant Taxing Jurisdiction”
	 	 	4.20	(a)
	“Reinvestment Termination Date”
	 	 	4.13	(I)(d)
	“Restricted Payments”
	 	 	4.11	(a)
	“Sold Mortgaged Vessel”
	 	4.13	(II)(a)(2)
	“Specified Courts”
	 	 	13.08	 
	“Supplemental Collateral Trustee”
	 	 	11.15	(b)
	“Surviving Entity”
	 	 	2.02	 
	“Tendered Vessel Owner”
	 	 	11.09	(a)
	“Third Party Process Agent”
	 	 	13.15	(b)
	“Total Loss”
	 	 	4.10	(b)(5)
	“Trust Monies”
	 	 	12.01	 
	“Vessel Tender Date”
	 	 	11.09	(a)





SECTION 1.03. Incorporation by Reference of Trust Indenture Act.




          Whenever this Indenture refers to a provision of the Trust Indenture Act, such provision is
incorporated by reference in, and made a part of, this Indenture. The following Trust Indenture
Act terms used in this Indenture have the following meanings:




          “indenture securities” means the Notes.




          “indenture security holder” means a Holder.




          “indenture to be qualified” means this Indenture.




          “indenture trustee” or “institutional trustee” means the Trustee.




          “obligor” in respect of this Indenture or on the Notes means a Co-Issuer, any
Guarantor and any other obligor on the Notes.




          All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.




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SECTION 1.04. Rules of Construction.




          For all purposes under this Indenture and the Notes, except as otherwise provided and unless
the context otherwise requires:





     (1) a term has the meaning assigned to it;




     (2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP (for the avoidance of doubt, determinations of whether an action is for
speculative purposes is not an accounting term);




     (3) words in the singular include the plural, and words in the plural include the
singular;




     (4) “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;




     (5) the words “including,” “includes” and similar words shall be deemed to be followed
by “without limitation”;




     (6) references to “$” or dollars are to United States dollars; and




     (7) references to Subsidiaries are to Subsidiaries of the Company.



ARTICLE TWO




THE NOTES


SECTION 2.01. Form and Dating.




          The Notes and the Trustee’s certificate of authentication shall be substantially in the form
of Exhibit A hereto. The Notes may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Co-Issuers shall approve the form of the Notes and any
notation, legend or endorsement on them. Each Note shall be dated the date of its issuance and
show the date of its authentication. Each Note shall have an executed Notation of Guarantee from
each of the Guarantors existing on the Issue Date endorsed thereon substantially in the form of
Exhibit E.




          The terms and provisions contained in the Notes and the Note Guarantees shall constitute, and
are hereby expressly made, a part of this Indenture and, to the extent applicable, the Co-Issuers,
the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.




          Notes offered and sold in reliance on Rule 144A shall be issued initially in the form of a
single permanent global Note in registered form, substantially in the form set forth in
Exhibit A (the “144A Global Note”), deposited with the Trustee, as custodian for the
Depository, duly executed by the
Co-Issuers (and having an executed Notation of Guarantee from each of the Guarantors existing
on the Issue Date endorsed thereon) and authenticated by the Trustee as hereinafter provided and
shall bear the legends set forth in Exhibit B.




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          Notes offered and sold in offshore transactions in reliance on Regulation S shall be issued
initially in the form of a single permanent global Note in registered form substantially in the
form of Exhibit A (the “Regulation S Global Note”; and together with the 144A Global Note,
the “Initial Global Notes”), deposited with the Trustee, as custodian for the Depository, duly
executed by each Co-Issuer (and having an executed Notation of Guarantee from each of the
Guarantors existing on the Issue Date endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear the legends set forth in Exhibit B.




          Notes issued after the Issue Date shall be issued initially in the form of one or more global
Notes in registered form, substantially in the form set forth in Exhibit A, deposited with
the Trustee, as custodian for the Depository, duly executed by each Co-Issuer (and having an
executed Notation of Guarantee from each of the Guarantors endorsed thereon) and authenticated by
the Trustee as hereinafter provided and shall bear any legends required by applicable law (together
with the Initial Global Notes, the “Global Notes”) or as Physical Notes. With respect to
Additional Notes, any Additional Interest, if set forth in the applicable Registration Rights
Agreement, may be paid to holders of such Additional Notes immediately prior to the making or the
consummation of the applicable Exchange Offer regardless of any other provision regarding record
dates set forth herein; provided that the Co-Issuers shall give advance written notice thereof to
the Trustee.




          The aggregate principal amount of the Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided. Notes issued in exchange for interests in a Global Note pursuant to Section
2.16 may be issued in the form of permanent certificated Notes in registered form in substantially
the form set forth in Exhibit A and bearing the applicable legends, if any, (the “Physical
Notes”).




          Subject to the provisions of Section 2.02, 4.10 and 4.12, the Co-Issuers may issue, from time
to time, Additional Notes under this Indenture which shall have identical terms as the Initial
Notes issued on the Issue Date or the Exchange Securities or Private Exchange Securities issued
therefore (in each case, other than with respect to the date of issuance, registration rights,
issue price and amount of interest payable on the first interest payment date applicable thereto),
as the case may be. Any Additional Notes shall be part of the same issue as the Notes being issued
on the Issue Date and will vote and consent on all matters as one class with the Notes being issued
on the Issue Date, including, without limitation, waivers, amendments, redemptions, Change of
Control Offers and Net Proceeds Offers.





			
	SECTION 2.02.	 	Execution, Authentication and Denomination; Additional Notes; Exchange Securities; Private Exchange Securities.





          One Officer of each Co-Issuer (who shall have been duly authorized by all requisite corporate
actions) shall sign the Notes for such Co-Issuer by manual or facsimile signature. One Officer of
a Guarantor (who shall have been duly authorized by all requisite corporate actions) shall sign the
Notation of Guarantee for such Guarantor by manual or facsimile signature.




          If an Officer whose signature is on a Note or Notation of Guarantee, as the case may be, was
an Officer at the time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall nevertheless be valid.




          A Note (and the Notations of Guarantees in respect thereof) shall not be valid until an
authorized signatory of the Trustee manually signs the certificate of authentication on the Note.
The signature shall be conclusive evidence that the Note has been duly and validly authenticated
under this Indenture.




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          The Trustee shall authenticate (i) on the Issue Date, Notes for original issue in the
aggregate principal amount not to exceed $400.0 million (the “Initial Notes”), (ii) additional
Notes (the “Additional Notes”) having identical terms and conditions to the Initial Notes, except
for issue date, issue price and first interest payment date, in an unlimited amount (so long as not
otherwise prohibited by the terms of this Indenture, including, without limitation, Sections 4.10
and 4.12) provided that, on each date of issuance of Additional Notes, if any, and as a condition
precedent to such issuance, the Co-Issuers shall cause to be secured by the Lien of this Indenture
and the Security Documents (subject only to Permitted Liens) (I) one or more Qualified Vessels
(together with any Related Assets) that will become Mortgaged Vessels on the date of incurrence of
such Additional Notes, (II) cash and/or (III) any combination of clauses (I) and (II), such that on
each such date of issuance of Additional Notes the requirements of clause (15) of the definition of
“Permitted Liens” shall be satisfied, and (iii) Exchange Securities and/or Private Exchange
Securities (x) in exchange for a like principal amount of Initial Notes or (y) in exchange for a
like principal amount of Additional Notes, in each case upon a written order of the Co-Issuers in
the form of a certificate of an Officer of each Co-Issuer (an “Authentication Order”). Each such
Authentication Order shall specify the amount of Notes to be authenticated and the date on which
the Notes are to be authenticated, whether the Notes are to be Initial Notes, Exchange Securities,
Private Exchange Securities or Additional Notes and whether the Notes are to be issued as
certificated Notes or Global Notes or such other information as the Trustee may reasonably request.




          All Notes issued under this Indenture shall be treated as a single class for all purposes
under this Indenture. None of the Initial Notes, any Additional Notes, any Exchange Securities or
Private Exchange Securities shall have the right to vote or consent as a separate class on any
manner (it being understood that the foregoing shall in no way limit the rights of Holders pursuant
to Section 9.02(b)). The Additional Notes shall bear any legend required by applicable law.




          The Trustee may appoint an authenticating agent reasonably acceptable to the Co-Issuers to
authenticate Notes. Unless otherwise provided in the appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Co-Issuers and Affiliates of the Co-Issuers. The
Trustee shall have the right to decline to authenticate and deliver any Notes under this Indenture
if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or
if the Trustee in good faith shall determine that such action would expose the Trustee to personal
liability.




          The Notes shall be issuable only in registered form without coupons in denominations of $2,000
and integral multiples of $1,000 in excess thereof.




          In case a Co-Issuer, pursuant to and in accordance with Article Five, shall, in one or more
related transactions, be consolidated or merged with or into any other Person or shall sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all the assets of such
Co-Issuer and its Restricted Subsidiaries taken as a whole to any Person, and the surviving Person
resulting from such consolidation or surviving such merger or into which such Co-issuer shall have
been merged, or the surviving Person which shall have participated in the sale, assignment,
transfer, conveyance or other disposition as aforesaid, shall have assumed all of the obligations
of such Co-Issuer under the Notes and this Indenture pursuant to agreements reasonably satisfactory
to the Trustee in accordance with Article Five (such Person, the “Surviving Entity”), any of the
Global Notes authenticated or delivered prior to such consolidation,
merger, sale, assignment, transfer, conveyance or other disposition may, from time to time, at
the request of the surviving Person, be exchanged for other Global Notes executed in the name of
the surviving Person with only such changes in phraseology as may be appropriate to reflect the
identity of the surviving Person, but otherwise in substance of like tenor, terms and conditions in
all respects as the Global Notes surrendered for such exchange and of like principal amount; and
the Trustee, upon the request of the




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surviving Person, shall authenticate and deliver Global Notes
as specified in such request for the purpose of such exchange. If Global Notes shall at any time
be authenticated and delivered in any new name of a Surviving Entity pursuant to this Section 2.02
in exchange or substitution for or upon registration of transfer of any Notes, such Surviving
Entity, at the option of the Holders but without expense to them, shall provide for the exchange of
all Notes at the time outstanding for Notes authenticated and delivered in such new name.



SECTION 2.03. Registrar and Paying Agent.




          The Co-Issuers shall maintain or cause to be maintained an office or agency in the United
States where (a) Notes may be presented for payment or surrendered for registration of transfer or
for exchange (“Registrar”), (b) Notes may, subject to Section 2 of the Notes, be presented or
surrendered for payment (“Paying Agent”) and (c) notices and demands to or upon the Co-Issuers in
respect of the Notes and this Indenture may be served. The Co-Issuers may also from time to time
designate one or more other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve either Co-Issuer of its
obligation to maintain or cause to be maintained an office or agency in the United States, for such
purposes. At the option of the Co-Issuers, the payment of interest and Additional Interest, if
any, may be made by check mailed to the Holders at their respective addresses set forth in the
register of Holders; provided that for Holders owning at least $100,000 aggregate principal amount
of Notes that have given wire transfer instructions to the Co-Issuers at least ten (10) Business
Days prior to the applicable payment date, the Co-Issuers shall make all payments of principal,
interest, premium and Additional Interest, if any, by wire transfer of immediately available funds
to the accounts specified by the Holders thereof. The Company or any Subsidiary of the Company may
act as Registrar or Paying Agent, except that for the purposes of Article Eight, neither the
Company nor any Affiliate of the Company shall act as Paying Agent. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Co-Issuers, upon notice to the
Trustee, may have one or more co-registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term “Registrar” includes any co-registrar and the term “Paying
Agent” includes any additional paying agent. The Co-Issuers initially appoint the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned or a successor has been
appointed.




          To the extent necessary, the Co-Issuers shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the provisions of this
Indenture that relate to such Agent. The Co-Issuers shall notify the Trustee, in advance, of the
name and address of any such Agent. If the Co-Issuers fail to maintain a Registrar or Paying
Agent, the Trustee shall act as such.



SECTION 2.04. Paying Agent To Hold Assets in Trust.




          The Co-Issuers shall require each Paying Agent other than the Trustee or the Company or any
Subsidiary of the Company to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the payment of principal
of, premium or Additional Interest, if any, or interest on, the Notes (whether such assets have
been distributed to it by the Co-Issuers or any other obligor on the Notes), and shall notify the
Trustee of any Default by the Co-Issuers (or any other obligor on the Notes) in making any such
payment. The Co-Issuers at any time may
require a Paying Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the continuance of any Payment Default,
upon written request to a Paying Agent, require such Paying Agent to distribute all assets held by
it to the Trustee and to account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Co-Issuers to the Paying Agent, the Paying Agent
(if other than the Company or a Subsidiary




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of the Company) shall have no further liability for such
assets. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the Co-Issuers, the Trustee shall
serve as Paying Agent for the Notes.



SECTION 2.05. Holder Lists.




          The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with Trust
Indenture Act Section 312(a). If the Trustee is not the Registrar, the Co-Issuers shall furnish to
the Trustee at least seven (7) Business Days prior to each Interest Payment Date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee
may reasonably require, of the names and addresses of Holders, which list may be conclusively
relied upon by the Trustee.



SECTION 2.06. Transfer and Exchange.




          Subject to Sections 2.15 and 2.16, when Notes are presented to the Registrar with a request to
register the transfer of such Notes or to exchange such Notes for an equal principal amount of
Notes of other authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met; provided, however, that the
Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Co-Issuers and the Registrar, duly executed by
the Holder thereof or his or her attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Co-Issuers shall execute and the Trustee shall authenticate Notes at
the Registrar’s request. No service charge shall be made for any registration of transfer or
exchange, but the Co-Issuers may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith.




          The Co-Issuers shall not be required and, without the prior written consent of the Co-Issuers,
the Registrar shall not be required to register the transfer of or exchange of any Note (i) during
a period beginning at the opening of business 15 days before the mailing of a notice of redemption
of Notes and ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed portion of any Note
being redeemed in part, (iii) that has been tendered (and not validly withdrawn) in a Change of
Control Offer, and (iv) beginning at the opening of business on any Record Date and ending on the
close of business on the related Interest Payment Date.




          Any Holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial
interest, agree that transfers of beneficial interests in such Global Notes may be effected only
through a book-entry system maintained by the Holder of such Global Note (or its agent) in
accordance with the applicable legends thereon, and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book-entry system.



SECTION 2.07. Replacement Notes.




          If a mutilated Note is surrendered to the Trustee or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Co-Issuers shall issue and the Trustee shall
authenticate a replacement Note if the Trustee’s requirements are met. Such Holder must provide
evidence satisfactory to the Trustee of such loss, destruction or wrongful taking, and an indemnity
bond, surety or other indemnity, sufficient in the judgment of both the Co-Issuers and the Trustee,
to protect the Co-Issuers, the Trustee or any Agent from any loss which any of them may suffer if a
Note is replaced. The Co-Issuers and the Trustee may charge such Holder for their respective
reasonable out-of-pocket




-38-









 




expenses in replacing a Note pursuant to this Section 2.07, including
reasonable fees and expenses of counsel.




          Every replacement Note is an additional obligation of the Co-Issuers and every replacement
Notation of Guarantee shall constitute an additional obligation of the Guarantor thereof.



SECTION 2.08. Outstanding Notes.




          Notes outstanding at any time are all the Notes that have been authenticated by the Trustee
except those cancelled by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Note does not cease to be outstanding because a Co-Issuer, a
Guarantor or any of their respective Affiliates holds the Note (subject to the provisions of
Section 2.09).




          If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for
replacement), it ceases to be outstanding unless the Co-Issuers and a Responsible Officer of the
Trustee receive written proof satisfactory to them that the replaced Note is held by a bona fide
purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement
thereof pursuant to Section 2.07.




          If the principal amount of any Note is considered paid under Section 4.01, it ceases to be
outstanding and interest (including Additional Interest) ceases to accrue thereon. If on a
Redemption Date or the Maturity Date the Trustee or Paying Agent (other than the Company or an
Affiliate thereof) holds U.S. Legal Tender or non-callable U.S. Government Securities sufficient to
pay all of the principal and interest due on the Notes payable on that date, then on and after that
date such Notes cease to be outstanding and interest (including Additional Interest) ceases to
accrue thereon.



SECTION 2.09. Treasury Notes.




          In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Co-Issuers or any of their Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee shall be protected in
conclusively relying on any such direction, waiver or consent, only Notes that a Responsible
Officer of the Trustee actually knows are so owned shall be disregarded.



SECTION 2.10. Temporary Notes.




          Until definitive Notes are ready for delivery, the Co-Issuers may prepare and the Trustee
shall, upon receipt of an authentication order, authenticate and deliver temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may have variations that
the Co-Issuers consider appropriate for temporary Notes. Without unreasonable delay, the
Co-Issuers shall prepare and the Trustee shall authenticate and deliver definitive Notes in
exchange for temporary Notes in equal principal amounts. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive Notes. Notwithstanding
the foregoing, so long as the Notes are represented by a Global Note, such Global Note may be in
typewritten form.



SECTION 2.11. Cancellation.




          A Co-Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange
or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Co-Issuers,




-39-









 




shall dispose of all Notes surrendered for transfer, exchange, payment
or cancellation in accordance with its customary procedures. Subject to Section 2.07, the
Co-Issuers may not issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation (which shall not prohibit the Co-Issuers from issuing any Additional Notes or any
Exchange Securities and/or Private Exchange Securities in accordance with the terms of this
Indenture). If a Co-Issuer or any Guarantor shall acquire any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.11.



SECTION 2.12. Defaulted Interest.




          If the Co-Issuers default in a payment of interest and Additional Interest, if any, on the
Notes, they shall pay the defaulted interest (including Additional Interest), plus (to the extent
lawful) any interest payable on the defaulted interest (including Additional Interest), in any
lawful manner, in each case at the rate provided in the Notes and in Section 4.01 hereof. The
Co-Issuers may pay the defaulted interest to the persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date fixed by the Co-Issuers
for the payment of defaulted interest or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before any such subsequent special record date, the Co-Issuers or,
at the Co-Issuers’ request, the Trustee, shall mail to each Holder, with a copy to the Trustee, a
notice that states the subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.



SECTION 2.13. CUSIP and ISIN Numbers.




          The Co-Issuers in issuing the Notes may use “CUSIP” or “ISIN” numbers, and if so, the Trustee
shall use the “CUSIP” or “ISIN” numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice may state that no representation is made as to the
correctness or accuracy of the “CUSIP” or “ISIN” numbers printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such numbers. The Co-Issuers
shall promptly notify the Trustee in writing of any change in the “CUSIP” or “ISIN” numbers.



SECTION 2.14. Deposit of Moneys.




          Subject to Section 2 of the Notes, prior to 12:00 noon New York City time on each Interest
Payment Date, Maturity Date, Redemption Date, Change of Control Payment Date, Asset Sale Payment
Date, Collateral Sale Payment Date and Event of Loss Payment Date, the Co-Issuers shall have
deposited with the Paying Agent (or the Collateral Trustee, as applicable) in immediately available
funds money sufficient to make cash payments, if any, due on such Interest Payment Date, Maturity
Date, Redemption Date, Change of Control Payment Date, Asset Sale Payment Date, Collateral Sale
Payment Date and Event of Loss Payment Date, as the case may be, in a timely manner which permits
the Paying Agent to remit payment to the Holders on such Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Payment Date, Asset Sale Payment Date, Collateral Sale Payment
Date and, Event of Loss Payment Date, as the case may be.



SECTION 2.15. Book-Entry Provisions for Global Notes.




          (a) The Global Notes initially shall (i) be registered in the name of the Depository or the
nominee of the Depository, (ii) be delivered to the Trustee as custodian for the Depository and
(iii) bear legends as set forth in Exhibit B, as applicable.




-40-









 








          Members of, or participants in, the Depository (“Participants”) shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Note, and the Depository may be treated by the
Co-Issuers, the Trustee and any agent of the Co-Issuers or the Trustee as the absolute owner of the
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Co-Issuers, the Trustee or any agent of the Co-Issuers or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.




          (b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the
Depository, its successors and their respective nominees. Interests of beneficial owners in the
Global Notes may be transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.16. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial interests in Global Notes
if (i) (a) the Depository notifies the Co-Issuers that it is unwilling or unable to act as
Depository for any Global Note or (b) has ceased to be a clearing agency registered under the
Exchange Act, and the Co-Issuers so notify the Trustee in writing and a successor Depository is not
appointed by the Co-Issuers within 90 days of such notice or (ii) an Event of Default has occurred
and is continuing and the Registrar has received a request from any owner of a beneficial interest
in a Global Note to issue Physical Notes. Upon any issuance of a Physical Note in accordance with
this Section 2.15(b), the Trustee shall register such Physical Note in the name of, and shall cause
the same to be delivered to, such person or persons (or the nominee of any thereof). All such
Physical Notes shall bear the applicable legends, if any.




          (c) In connection with any transfer or exchange of a portion of the beneficial interest in a
Global Note to beneficial owners pursuant to Section 2.15(b), the Registrar shall (if one or more
Physical Notes are to be issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be transferred, and the Co-Issuers shall execute, and the Trustee
shall authenticate and deliver, one or more Physical Notes of authorized denominations in an
aggregate principal amount equal to the principal amount of the beneficial interest in the Global
Note so transferred.




          (d) In connection with the transfer of a Global Note as an entirety to beneficial owners
pursuant to Section 2.15(b), such Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and (i) the Co-Issuers shall execute, (ii) the Guarantors shall execute notations of
Note Guarantees on and (iii) the Trustee shall upon written instructions from the Co-Issuers
authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of Physical Notes of
authorized denominations.




          (e) Any Physical Note constituting a Restricted Security delivered in exchange for an interest
in a Global Note pursuant to paragraph (b) or (c) of this Section 2.15 shall, except as otherwise
provided by Section 2.16, bear the Private Placement Legend.




          (f) The Holder of any Global Note may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants, to take any action
which a Holder is entitled to take under this Indenture or the Notes.







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SECTION 2.16. Special Transfer and Exchange Provisions.




          (a) Transfers to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Security to a QIB:





     (i) the Registrar shall register the transfer of any Restricted Security, whether or
not such Note bears the Private Placement Legend, if (x) the requested transfer is after the
second anniversary of the Issue Date; provided, however, that neither the Company nor any
Affiliate of the Company has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y) such transfer is
being made by a proposed transferor who has checked the box provided for on the applicable
Global Note stating, or has otherwise advised the Co-Issuers and the Registrar in writing,
that the sale has been made in compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the applicable Global Note stating, or has
otherwise advised the Co-Issuers and the Registrar in writing, that it is purchasing the
Note for its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Co-Issuers as it has requested pursuant to Rule
144A or has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A;




     (ii) if the proposed transferee is a Participant and the Notes to be transferred
consist of Physical Notes which after transfer are to be evidenced by an interest in the
144A Global Note, upon receipt by the Registrar of the Physical Note and written
instructions given in accordance with the Depository’s and the Registrar’s procedures, the
Registrar shall register the transfer and reflect on its book and records the date and an
increase in the principal amount of the 144A Global Note in an amount equal to the principal
amount of Physical Notes to be transferred, and the Registrar shall cancel the Physical
Notes so transferred; and




     (iii) if the proposed transferor is a Participant seeking to transfer an interest in
the Regulation S Global Note, upon receipt by the Registrar of written instructions given in
accordance with the Depository’s and the Registrar’s procedures, the Registrar shall
register the transfer and reflect on its books and records the date and (A) a decrease in
the principal amount of the Regulation S Global Note in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the principal amount of the
144A Global Note in an amount equal to the principal amount of the Notes to be transferred.



          (b) [RESERVED]




          (c) Transfers to Non-U.S. Persons. The following provisions shall apply with respect
to any transfer of a Restricted Security to a Non-U.S. Person under Regulation S:





     (i) the Registrar shall register any proposed transfer of a Restricted Security to a
Non-U.S. Person upon receipt of a certificate substantially in the form of Exhibit C
from the proposed transferor and such certifications, legal opinions and other information
as the Trustee or the Co-Issuers may reasonably request; and




     (ii) (a) if the proposed transferor is a Participant holding a beneficial interest in
the Rule 144A Global Note or the Note to be transferred consists of Physical Notes, upon
receipt by the Registrar of (x) the documents required by paragraph (i) and (y) instructions
in accordance



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with the Depository’s and the Registrar’s procedures, the Registrar shall reflect on
its books and records the date and a decrease in the principal amount of the Rule 144A
Global Note, in an amount equal to the principal amount of the 144A Global Note to be
transferred or cancel the Physical Notes to be transferred, as the case may be, and (b) if
the proposed transferee is a Participant, upon receipt by the Registrar of instructions
given in accordance with the Depository’s and the Registrar’s procedures, the Registrar
shall reflect on its books and records the date and an increase in the principal amount of
the Regulation S Global Note in an amount equal to the principal amount of the Rule 144A
Global Note or the Physical Notes, as the case may be, to be transferred.



          (d) Note Delegending. (1) Subject to the requirements of Section 2.16(f), upon the
occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the
Co-Issuers shall issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate one or more Global Notes and/or Physical Notes not bearing the
Private Placement Legend in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Initial Global Notes or Physical Notes, as the case may be, tendered
for acceptance in accordance with the Exchange Offer and accepted for exchange in the Exchange
Offer. (2) Subject to the requirements of Section 2.16(f), at such time as the Co-Issuers have
arranged for the removal of the Private Placement Legend from the Notes in accordance with the
Depository’s applicable procedures, the Co-Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall authenticate one or more
Global Notes and/or Physical Notes not bearing the Private Placement Legend in an aggregate
principal amount equal to the principal amount of the beneficial interests in the Initial Global
Notes or Physical Notes, as the case may be, delegended pursuant to the Depository’s applicable
procedures.




          (e) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding any other
provisions of this Indenture, a Global Note may not be transferred as a whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository.




          (f) Private Placement Legend. Upon the transfer, exchange or replacement of Notes not
bearing the Private Placement Legend unless otherwise required by applicable law, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) there is delivered to the Trustee an Opinion of
Counsel reasonably satisfactory to the Co-Issuers and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to maintain compliance with
the provisions of the Securities Act or (ii) such Note has been offered and sold (including
pursuant to the Exchange Offer) pursuant to an effective registration statement under the
Securities Act.




          (g) General. By its acceptance of any Note bearing the Private Placement Legend, each
Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it shall transfer such Note only as
provided in this Indenture.




          The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to Section 2.15 or Section 2.16. The Co-Issuers shall have the right to inspect
and make copies of all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.







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          The Co-Issuers and the Registrar are not required to transfer or exchange any Note selected
for redemption, except the unredeemed portion of any Note being redeemed in part.




          The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Note (including any transfers between or among Depository,
Participants or beneficial owners of interests in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so
if and when expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof.




          The Trustee shall have no responsibility for the actions or omissions of the Depository, or
the accuracy of the books and records of the Depository.




          (h) Cancellation and/or Adjustment of Global Note. At such time as all beneficial
interests in a particular Global Note have been exchanged for Physical Notes or a particular Global
Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note or for Physical Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depository at the direction of the Trustee to reflect
such reduction; and if the beneficial interest is being exchanged for or transferred to a Person
who shall take delivery thereof in the form of a beneficial interest in another Global Note, such
other Global Note shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depository at the direction of the Trustee to reflect such increase.



SECTION 2.17. Persons Deemed Owners.




          Prior to due presentment of a Note for registration of transfer and subject to Section 2.17,
the Co-Issuers, the Trustee, any Paying Agent, any co-registrar and any Registrar may deem and
treat the person in whose name any Note shall be registered upon the register of Notes kept by the
Registrar as the absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by anyone other than
the Co-Issuers, any co-registrar or any Registrar) for the purpose of receiving all payments with
respect to such Note and for all other purposes, and none of the Co-Issuers, the Trustee, any
Paying Agent, any co-registrar or any Registrar shall be affected by any notice to the contrary.



SECTION 2.18. Joint and Several Liability.




          Except as otherwise expressly provided herein, the Co-Issuers shall be jointly and severally
liable for the performance of all obligations and covenants under this Indenture, the Notes and the
Security Documents.








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ARTICLE THREE




REDEMPTION


SECTION 3.01. Notices to Trustee.




          If the Co-Issuers elect to redeem Notes pursuant to Section 5, Section 6 or Section 7 of the
Notes, it shall notify the Trustee in writing of the Redemption Date, the Redemption Price and the
principal amount of Notes to be redeemed. The Co-Issuers shall give notice of redemption to the
Trustee at least 30 days but not more than 60 days before the Redemption Date (except that a notice
issued in connection with a redemption referred to in Article Eight may be more than 60 days before
such Redemption Date), together with such documentation and records as shall enable the Trustee to
select the Notes to be redeemed.



SECTION 3.02. Selection of Notes To Be Redeemed.




          If less than all of the Notes are to be redeemed at any time, the Trustee shall select Notes
for redemption as follows:





     (x) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or




     (y) if the Notes are not listed on any national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;


provided that, in the case of a partial redemption pursuant to Section 6 of the Notes, the Trustee
shall select the Notes or portions thereof for redemption on a pro rata basis or on as nearly a pro
rata basis as practicable (subject to the procedures of the Depository), unless that method is
otherwise prohibited.




          No Notes of $2,000 or less shall be redeemed in part. The Trustee shall promptly notify the
Co-Issuers in writing of the Notes selected for redemption and, in the case of any Note selected
for partial redemption, the principal amount at maturity thereof to be redeemed or purchased.



SECTION 3.03. Notice of Redemption.




          (a) At least 30 days but not more than 60 days before a Redemption Date (except that a notice
issued in connection with a redemption referred to in Article Eight may be more than 60 days before
such Redemption Date), the Co-Issuers shall mail or cause to be mailed a notice of redemption by
first class mail, postage prepaid, to each Holder whose Notes are to be redeemed at its registered
address. Each notice for redemption shall identify the Notes (including the CUSIP or ISIN number)
to be redeemed and shall state:





     (1) the Redemption Date;




     (2) the Redemption Price and the amount of accrued interest (including Additional
Interest), if any, to be paid;




     (3) the name and address of the Paying Agent;




     (4) that Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price plus accrued interest, if any;








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     (5) that, unless the Co-Issuers default in making the redemption payment, interest
(including Additional Interest) on Notes called for redemption ceases to accrue on and after
the Redemption Date, and the only remaining right of the Holders of such Notes is to receive
payment of the Redemption Price upon surrender to the Paying Agent of the Notes redeemed;




     (6) if any Note is being redeemed in part, the portion of the principal amount at
maturity of such Note to be redeemed and that, after the Redemption Date, and upon surrender
and cancellation of such Note, a new Note or Notes in aggregate principal amount equal to
the unredeemed portion thereof shall be issued in the name of the Holder thereof; provided
that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000
in excess thereof;




     (7) if fewer than all the Notes are to be redeemed, the identification of the
particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption; and




     (8) the Section of the Notes or this Indenture, as applicable, pursuant to which the
Notes are to be redeemed.



          The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any other Note.
Notices of optional redemption may not be conditional.




          (b) At the Co-Issuers’ request (which may be given prior to the time at which the Trustee
shall have given such notice to Holders), the Trustee shall give the notice of redemption to each
Holder in the Co-Issuers’ names and at their expense; provided, however, that the Co-Issuers shall
have delivered to the Trustee, at least 45 days prior to the Redemption Date (unless a shorter time
period is agreed to by the Trustee), an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided in Section
3.03(a). The notice, if mailed in the manner provided herein, shall be presumed to have been
given, whether or not the Holder receives such notice.



SECTION 3.04. Effect of Notice of Redemption.




          Once notice of redemption is mailed in accordance with Section 3.03, Notes called for
redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued
interest and Additional Interest, if any. Upon surrender to the Trustee or Paying Agent, such
Notes called for redemption shall be paid at the Redemption Price (which shall include accrued
interest and Additional Interest, if any, thereon to, but not including, the Redemption Date), but
installments of interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant Record Dates. On and after
the Redemption Date interest and Additional Interest, if any, shall cease to accrue on Notes or
portions thereof called for redemption unless the Co-Issuers shall have not complied with their
respective obligations pursuant to Section 3.05. Failure to give notice or any defect in the
notice to any Holder shall not affect the validity of the notice to any other Holder.



SECTION 3.05. Deposit of Redemption Price.




          On or before 12:00 p.m. New York time on the Redemption Date, the Co-Issuers shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus accrued and






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unpaid interest and Additional Interest, if any, of all Notes (or portions thereof) to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Co-Issuers any
money deposited with the Trustee or the Paying Agent by the Co-Issuers in excess of the amounts
necessary to pay the Redemption Price (including accrued and unpaid interest and Additional
Interest, if any) for all Notes to be redeemed. In addition, so long as no payment Default or
Event of Default has occurred and is continuing, all money, if any, earned on funds held by the
Paying Agent shall be remitted to the Co-Issuers to the extent not applied to payments on the
Notes.



SECTION 3.06. Notes Redeemed in Part.




          If any Note is to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed. A new Note or Notes in
principal amount equal to the unredeemed portion of the original Note or Notes shall be issued in
the name of the Holder thereof upon surrender and cancellation of the original Note or Notes;
provided that each new Note will be in a principal amount of $2,000 or an integral multiple of
$1,000 in excess thereof.



SECTION 3.07. Optional Redemption.




          The Notes shall be optionally redeemable as set forth in Section 5, Section 6 and Section 7 of
the Notes. Any such redemption shall be made in accordance with the provisions of this Article
Three.




ARTICLE FOUR




COVENANTS


SECTION 4.01. Payment of Notes.




          The Co-Issuers shall pay the principal of (and premium, if any) and interest (including
Additional Interest, if any) on the Notes in the manner provided in the Notes, the Registration
Rights Agreement and this Indenture. An installment of principal of, or interest or Additional
Interest, if any, on, the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent, other than the Company or a Subsidiary of the Company, (or if the Company or any of
its Subsidiaries is the Paying Agent, the segregated account or separate trust fund maintained by
the Company or such Subsidiary pursuant to Section 2.04) holds on that date as of 12:00 noon New
York City time U.S. Legal Tender designated for and sufficient to pay the installment. Interest on
the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.




          The Co-Issuers shall pay interest on overdue principal (including, without limitation,
post-petition interest in a proceeding under any Bankruptcy Law), and overdue interest and
Additional Interest, if any, to the extent lawful, at the same rate per annum borne by the Notes.



SECTION 4.02. Maintenance of Office or Agency.




          The Co-Issuers shall maintain the office required under Section 2.03 (which may be an office
of the Trustee or an affiliate of the Trustee or Registrar). The Co-Issuers shall give prompt
written notice to the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Co-Issuers shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in Section 13.02.







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          The Co-Issuers may also from time to time designate one or more other offices or agencies
where the Notes may be presented for payment or surrendered for any or all such purposes and may
from time to time rescind such designations. The Co-Issuers shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.




          The Co-Issuers hereby designate the Corporate Trust Office of the Trustee as one such office
or agency of the Co-Issuers in accordance with Section 2.03 of this Indenture.



SECTION 4.03. Corporate Existence.




          Except as otherwise permitted by Section 4.13 and Article Five, each Co-Issuer shall do or
cause to be done all things reasonably necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each Restricted Subsidiary
in accordance with the respective organizational documents of each such Restricted Subsidiary and
the material rights (charter and statutory) and material franchises of each Co-Issuer and each
Restricted Subsidiary; provided, however, that subject to Article Eleven hereof and the terms of
the Security Documents, the Co-Issuers shall not be required to preserve any such right, franchise
or corporate existence with respect to itself or any Restricted Subsidiary, if the loss thereof
would not, individually or in the aggregate, have a material adverse effect on the Company and the
Restricted Subsidiaries, taken as a whole.



SECTION 4.04. Payment of Taxes.




          The Co-Issuers and the Guarantors shall, and shall cause each of the Restricted Subsidiaries
to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent,
all material taxes, assessments and governmental charges levied or imposed upon them or any of the
Restricted Subsidiaries or upon the income, profits or property of them or any of the Restricted
Subsidiaries; provided, however, that subject to the terms of the applicable Security Documents,
the Co-Issuers and the Guarantors shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount the applicability or validity is
being contested in good faith by appropriate actions and for which appropriate provision has been
made, or any such tax, assessment, charge or claim that would not reasonably be expected to have a
material adverse effect on the Co-Issuers and the Guarantors taken as a whole.



SECTION 4.05. Further Assurances.




          The Co-Issuers and each Guarantor shall execute any and all further documents, financing
statements, agreements and instruments, and take all further action that may be required under
applicable law, or that the Collateral Trustee may reasonably request, in order to grant, preserve,
protect and perfect the validity and priority of the security interests and Liens created or
intended to be created by this Indenture or the Security Documents on the Collateral. The Company
shall deliver or cause to be delivered to the Collateral Trustee all such instruments and documents
(including Officers’ Certificates, Opinions of Counsel and lien searches) as the Collateral Trustee
shall reasonably request to evidence compliance with this Section 4.05.



SECTION 4.06. Compliance Certificate; Notice of Default.




          (a) Each Co-Issuer shall deliver to the Trustee, within 165 days after the close of each
fiscal year of such Co-Issuer, an Officers’ Certificate, one of the signatories of which shall be
the chief executive officer, chief financial officer or chief accounting officer of such Co-Issuer,
stating that a review of the activities of such Co-Issuer and, in the case of the Officer’s
Certificate delivered by the






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Company, the Guarantors, has been made under the supervision of the signing Officers with a
view to determining whether such Co-Issuer and the Guarantors (if applicable) have kept, observed,
performed and fulfilled their obligations under this Indenture and the Security Documents to which
it is, or they are, a party and further stating, as to each such Officer signing such certificate,
that to the best of such Officer’s actual knowledge, such Co-Issuer and the Guarantors (if
applicable) during such preceding fiscal year have kept, observed, performed and fulfilled their
respective obligations under this Indenture and the Security Documents to which it is, or they are,
a party in all material respects and as of the date of such certificate, there is no Default or
Event of Default that has occurred and is continuing or, if such signing Officers do know of such
Default or Event of Default, the certificate shall specify such Default or Event of Default and
what action, if any, the Co-Issuers are taking or proposes to take with respect thereto. The
Officers’ Certificate shall also notify the Trustee should either Co-Issuer elect to change the
manner in which it fixes its fiscal year end.




          (b) The Co-Issuers shall deliver to the Trustee as promptly as practicable and in any event
within 30 days after the Co-Issuers (or any of their Officers) become aware of the occurrence of
any Default an Officers’ Certificate specifying the Default or Event of Default and what action, if
any, the Co-Issuers are taking or propose to take with respect thereto.



SECTION 4.07. Payments for Consent.




          The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid to all Holders that consent,
waive or agree to amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.



SECTION 4.08. Waiver of Stay, Extension or Usury Laws.




          Each Co-Issuer and each Guarantor covenants (to the extent permitted by applicable law) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law which may affect the
covenants or the performance of this Indenture and the Security Documents, and (to the extent
permitted by applicable law) each hereby expressly waives all benefit or advantage of any such law,
and covenants that it shall not hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power as though no such law
had been enacted.



SECTION 4.09. Change of Control.




          If a Change of Control occurs, the Co-Issuers shall be required to make an offer to repurchase
all of the Notes as described below (the “Change of Control Offer”). In the Change of Control
Offer, the Co-Issuers shall offer a payment in cash (“Change of Control Payment”) equal to 101% of
the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Additional
Interest, if any, on the Notes repurchased, to the date of purchase, subject to the rights of
Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date.
Within 30 days following any Change of Control or at the Co-Issuers’ option, prior to such Change
of Control but after it is publicly announced, the Co-Issuers shall mail or cause to be mailed a
notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment
Date specified in the notice (the “Change of Control Payment Date”), which date shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed, other than as may be
required by law, pursuant to the procedures described below. If the notice is sent prior to the
occurrence of the Change of Control, it may be conditioned upon the






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consummation of the Change of Control. Such notice, whether sent before or after the
consummation of the Change of Control, shall state:





     (1) that the Change of Control Offer is being made pursuant to this Section 4.09 and to
the extent lawful that all Notes tendered and not withdrawn shall be accepted for payment;




     (2) the purchase price (including the amount of accrued interest) and the Change of
Control Payment Date;




     (3) that any Note not tendered shall continue to accrue interest in accordance with the
terms thereof;




     (4) that, unless the Co-Issuers default in making payment therefor, any Note accepted
for payment pursuant to the Change of Control Offer shall cease to accrue interest on and
after the Change of Control Payment Date;




     (5) that Holders electing to have a Note purchased pursuant to a Change of Control
Offer shall be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to
the Paying Agent at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date;




     (6) that Holders shall be entitled to withdraw their election if the Paying Agent
receives, not later than two Business Days prior to the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Notes the Holder delivered for purchase, certificate numbers, if applicable, and a
statement that such Holder is withdrawing its election to have such Note purchased; and




     (7) that Holders whose Notes are purchased only in part shall be issued new Notes in a
principal amount equal to the unpurchased portion of the Notes surrendered (equal to $2,000
or an integral multiple of $1,000 in excess thereof).



          On or before the Change of Control Payment Date, the Co-Issuers shall, to the extent lawful:





     (1) accept for payment all Notes or portions of Notes in minimum amounts equal to
$2,000 or an integral multiple of $1,000 in excess thereof, properly tendered pursuant to
the Change of Control Offer;




     (2) deposit with the Paying Agent U.S. Legal Tender equal to the Change of Control
Payment in respect of all Notes or portions of Notes properly tendered; and




     (3) deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Co-Issuers.



          The Paying Agent shall promptly mail or pay by wire transfer to each Holder whose Notes have
been properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly
authenticate pursuant to an Authentication Order and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided that each new Note shall be in a principal amount of $2,000 or an
integral





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multiple of $1,000 in excess thereof. So long as no payment Default or Event of Default has
occurred and is continuing and to the extent not applied to make payments on the Notes, the Paying
Agent shall return to the Co-Issuers any cash that remains unclaimed, together with interest, if
any, thereon, held by them for the payment of the Redemption Price. However, if the Change of
Control Payment Date is on or after an interest record date and on or before the related Interest
Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is
registered at the close of business on such Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Change of Control Offer.




          The Co-Issuers shall inform the Holders of the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date. The Co-Issuers shall be required to
make a Change of Control Offer regardless of whether the provisions of Section 5.01 also apply in
connection with the applicable Change of Control.




          The Co-Issuers shall not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Co-Issuers and purchases all Notes properly tendered and not withdrawn
under the Change of Control Offer or (2) notice of redemption has been given in respect of all of
the Notes then outstanding pursuant to Section 5 or Section 6 of the Notes, unless and until there
is a default in payment of the applicable Redemption Price.




          The Co-Issuers shall comply with the requirements of any securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of
any securities laws or regulations conflict with the provisions of this Section 4.09, the
Co-Issuers shall comply with the applicable securities laws and regulations and shall not be deemed
to have breached its obligations under this Section 4.09 by virtue of such compliance.




SECTION 4.10. Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any
Indebtedness (including Acquired Debt), and the Company shall not issue any shares of Disqualified
Stock and the Company shall not permit any of its Restricted Subsidiaries to issue any shares of
Disqualified Stock or preferred stock; provided, however, that the Company may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock, and any Guarantor may incur Indebtedness
(including Acquired Debt), issue shares of Disqualified Stock or issue shares of preferred stock,
if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued, as the
case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional Indebtedness had been
incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at
the beginning of such four-quarter period.







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          (b) Section 4.10(a) shall not prohibit the incurrence of any of the following items of
Indebtedness (collectively, “Permitted Debt”):





     (1) the incurrence by a Co-Issuer or any Guarantor of Indebtedness and letters of
credit under one or more Credit Facilities in an aggregate amount at any time outstanding
under this clause (1) not to exceed $150.0 million, less the amount of Non-Recourse Debt
outstanding under clause (16) below;




     (2) the incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;




     (3) the incurrence of the Notes on the Issue Date, the Note Guarantees and the Exchange
Securities and/or Private Exchange Securities to be issued pursuant to the Registration
Rights Agreement;




     (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of design, construction, installation or improvement of property, plant or equipment
used in the business of the Company or any of its Restricted Subsidiaries and Permitted
Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed at any
time outstanding the greater of (A) $30.0 million and (B) 3.0% of Total Tangible Assets;




     (5) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to
finance the replacement (through construction, acquisition, lease or otherwise) of one or
more Vessels and any assets that shall become Related Assets, upon a total loss,
destruction, condemnation, confiscation, requisition, seizure, forfeiture or other taking of
title to or use of such Vessel (collectively, a “Total Loss”) in an aggregate amount no
greater than the ready for sea cost (as determined in good faith by the Company) for such
replacement Vessel, in each case, less all compensation, damages and other payments
(including insurance proceeds other than in respect of business interruption insurance)
actually received by the Company or any of its Restricted Subsidiaries from any Person in
connection with the Total Loss in excess of amounts actually used to repay Indebtedness
secured by the Vessel subject to the Total Loss;




     (6) Indebtedness of the Company or any Restricted Subsidiary incurred in relation to:
(i) maintenance, repairs, refurbishments and replacements required to maintain the
classification of any of the Vessels owned, leased, time chartered or bareboat chartered to
or by the Company or any Restricted Subsidiary; (ii) drydocking of any of the Vessels owned
or leased by the Company or any Restricted Subsidiary for maintenance, repair, refurbishment
or replacement purposes in the ordinary course of business; and (iii) any expenditures which
will or may be reasonably expected to be recoverable from insurance on such Vessels;




     (7) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in respect of Indebtedness (other than intercompany Indebtedness)
that was permitted to be incurred under Section 4.10(a) or Sections 4.10(b)(2), (b)(3),
(b)(5), (b)(6), (b)(7) or (b)(14);




     (8) the incurrence of Indebtedness by the Company owed to a Restricted Subsidiary and
Indebtedness by any Restricted Subsidiary owed to the Company or any other Restricted
Subsidiary; provided, however, that upon any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or such Indebtedness being owed to any Person other than the Company
or a



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Restricted Subsidiary, the Company or such Restricted Subsidiary, as applicable, shall
be deemed to have incurred Indebtedness not permitted by this clause (8);




     (9) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of Disqualified Stock or preferred stock;
provided, however, that:




     (A) any subsequent issuance or transfer of Equity Interests that results in
any such Disqualified Stock or preferred stock being held by a Person other than
the Company or a Restricted Subsidiary of the Company; and




     (B) any sale or other transfer of any such Disqualified Stock or preferred
stock to a Person that is neither the Company nor a Restricted Subsidiary of the
Company;




shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or
preferred stock by such Restricted Subsidiary that is not permitted by this clause (9);




     (10) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Hedging Obligations;




     (11) the guarantee by the Company or any Guarantor of Indebtedness of the Company or a
Restricted Subsidiary of the Company that was permitted to be incurred by another provision
of this Section 4.10; provided that if the Indebtedness being guaranteed is contractually
subordinated to the Notes or a Guarantee, then the guarantee shall be contractually
subordinated to the same extent as the Indebtedness guaranteed;




     (12) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of workers’ compensation claims, unemployment insurance, health,
disability and other employee benefits or property, casualty or liability insurance,
self-insurance obligations, bankers’ acceptances, or performance, completion, bid, appeal
and surety bonds, in each case, in the ordinary course of business;




     (13) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days;




     (14) Indebtedness, Disqualified Stock or preferred stock of (x) the Company or a
Restricted Subsidiary incurred or issued to finance an acquisition or (y) a Person acquired
by the Company or a Restricted Subsidiary or merged, consolidated, amalgamated or liquidated
with or into a Restricted Subsidiary or the Company; provided, however, that after giving
effect to such incurrence or issuance (and the related acquisition, merger, consolidation,
amalgamation or liquidation), the Fixed Charge Coverage Ratio for the Company’s most
recently ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock or preferred stock is issued, as the case may be, would have been
at least 1.75 to 1.0;




     (15) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness consisting of guarantees, earn-outs, indemnities or obligations in respect of
purchase price



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adjustments in connection with the disposition or acquisition of assets, including,
without limitation, shares of Capital Stock;




     (16) Non-Recourse Debt incurred by a Securitization Subsidiary in a Qualified
Securitization Transaction;




     (17) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness constituting reimbursement obligations with respect to letters of credit so
long each such obligation is satisfied within 30 days of the incurrence thereof; and




     (18) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness, Disqualified Stock or preferred stock in an aggregate amount at any time
outstanding, including all Permitted Refinancing Indebtedness incurred pursuant to this
clause (18), not to exceed the greater of (A) $35.0 million and (B) 3.5% of Total Tangible
Assets.



          (c) For purposes of determining compliance with this Section 4.10, in the event that an item
of proposed Indebtedness, Disqualified Stock or preferred stock meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (18) of Section 4.10(b), or is
entitled to be incurred pursuant to Section 4.10(a), the Company, in its sole discretion, may
classify such item of Indebtedness, Disqualified Stock and preferred stock (or any portion thereof)
on the date of its incurrence, or later reclassify, all or a portion of such item of Indebtedness,
Disqualified Stock and preferred stock, in any manner that complies with this Section 4.10.
Indebtedness under all Credit Facilities (including, without limitation, the Credit Agreement)
outstanding or committed to on the Issue Date (including, without limitation, the Commitment
Letter) (or any replacements of any such committed amounts) will be deemed to have been incurred on
such date in reliance on the exception provided by Section 4.10(b)(2) (whether or not outstanding
on such date), but thereafter may be reclassified in any manner that complies with this Section
4.10.




          (d) The accrual of interest, the accrual of dividends, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or preferred
stock in the form of additional shares of the same class of Disqualified Stock or preferred stock,
as the case may be, shall not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock or preferred stock for purposes of this Section 4.10; provided, in each such
case, that the amount thereof is included in Fixed Charges of the Company as accrued.




          (e) The amount of any Indebtedness outstanding as of any date shall be:





     (1) the accreted value of such Indebtedness, in the case of any Indebtedness issued
with original issue discount;




     (2) the principal amount of the Indebtedness, in the case of any other Indebtedness;




     (3) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:




     (A) the Fair Market Value of such assets at the date of determination; and




     (B) the amount of the Indebtedness of the other Person that is secured by
such assets; and



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     (4) in respect of the Indebtedness incurred by a Securitization Subsidiary, the amount
of Obligations outstanding under the legal documents entered into as part of a Qualified
Securitization Transaction on any date of determination characterized as principal or that
would be characterized as principal if such securitization were structured as a secured
lending transaction rather than as a purchase.



          (f) For purposes of determining compliance with this Section 4.10, (i) Acquired Debt shall be
deemed to have been incurred by the Company or its Restricted Subsidiaries, as the case may be, at
the time an acquired Person becomes such a Restricted Subsidiary of the Company (or is merged into
the Company or such a Restricted Subsidiary) or at the time of the acquisition of assets, as the
case may be, (ii) the maximum amount of Indebtedness, Disqualified Stock or preferred stock that
the Company and its Restricted Subsidiaries may incur pursuant to this Section 4.10 shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness, Disqualified Stock or
preferred stock due solely to the result of fluctuations in the exchange rates of currencies and
(iii) the outstanding principal amount of any particular Indebtedness shall be counted only once
and any obligations arising under any guarantee, Lien, letter of credit or similar instrument
supporting such Indebtedness permitted to be incurred under this covenant shall not be double
counted.




          (g) For purposes of determining compliance of any non-U.S. dollar-denominated Indebtedness
with this Section 4.10, the amount outstanding under any U.S. dollar equivalent principal amount of
Indebtedness denominated in a foreign currency shall at all times be calculated based on the
relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case
of term Indebtedness, or first committed, in the case of revolving credit Indebtedness (in each
case determined, if available, by the rate of exchange quoted by Reuters at 10:00 a.m. (New York
time) on the date of determination for spot purchases of the non-U.S. dollar currency with U.S.
dollars and otherwise in accordance with customary practice); provided, however, that if such
Indebtedness is incurred to refinance other Indebtedness denominated in the same or different
currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the date of such
refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so
long as the principal amount of such refinancing Indebtedness does not exceed the principal amount
of such Indebtedness being refinanced.





			
	SECTION 4.11.	 	Limitations on Restricted Payments.





          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly:





     (i) pay any dividend or make any other payment or distribution on account of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without
limitation, any payment in connection with any merger, amalgamation or consolidation
involving the Company or any of its Restricted Subsidiaries) or to the holders of the
Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such
(other than (A) dividends or distributions payable in Qualified Equity Interests or (B)
dividends or other payments or distributions payable to the Company or a Restricted
Subsidiary of the Company);




     (ii) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation) any Equity Interests of the
Company or any direct or indirect parent of the Company;




     (iii) make any voluntary or optional principal payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness of a
Co-Issuer or



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any Guarantor that is contractually subordinated to the Notes or any Guarantee
(excluding any Indebtedness owed to and held by the Company or any of its Restricted
Subsidiaries), other than (x) payments of principal at the Stated Maturity thereof and
(y) payments, purchases, redemptions, defeasances or other acquisitions or retirements for
value in anticipation of satisfying a scheduled maturity, sinking fund or amortization or
other installment obligation or mandatory redemption, in each case, due within one year of
the Stated Maturity thereof; or




     (iv) make any Restricted Investment


(all such payments and other actions set forth in clauses (i) through (iv) above being collectively
referred to as “Restricted Payments”), unless, at the time of and after giving effect to such
Restricted Payment:





     (1) no Default or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment;




     (2) the Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the beginning of the
applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a);
and




     (3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding
Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10) and
(14) of Section 4.11(b)), is not greater than the sum, without duplication, of:




     (A) 50% of the Consolidated Net Income of the Company for the period (taken
as one accounting period) from October 1, 2010 the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such deficit); plus




     (B) (i) 100% of the aggregate net cash proceeds and (ii) 100% of the Fair
Market Value of the property and assets other than cash, in each case, received by
the Company after the Issue Date as a contribution to its equity capital or from
the issue or sale (other than to a Restricted Subsidiary of the Company) of
Qualified Equity Interests, including upon the exercise of options or warrants, or
from the issue or sale (other than to a Restricted Subsidiary of the Company) of
convertible or exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or exchanged for Qualified
Equity Interests, together with the aggregate cash and Cash Equivalents received
by the Company or any of its Restricted Subsidiaries at the time of such
conversion or exchange; plus




     (C) to the extent that any Restricted Investment that was made after the
Issue Date is sold or otherwise liquidated or repaid for cash or Cash Equivalents,
the return of capital in cash or Cash Equivalents with respect to such Restricted
Investment (less the cost of disposition, if any); plus




     (D) to the extent that any Unrestricted Subsidiary of the Company is
redesignated as a Restricted Subsidiary after the Issue Date or is merged into the
Company or a Restricted Subsidiary or transfers all or substantially all its
assets to the Company or a Restricted Subsidiary, the Fair Market Value of the
Investment of the Company



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and its Restricted Subsidiaries in such Subsidiary (or the assets so
transferred, if applicable) as of the date of such redesignation (other than to
the extent of such Investment in such Unrestricted Subsidiary that was made as a
Permitted Investment); plus




     (E) any amount which previously treated as a Restricted Payment on account of
any guarantee entered into by the Company or a Restricted Subsidiary upon the
unconditional release of such guarantee.



          (b) The preceding provisions shall not prohibit:





     (1) the payment of any dividend or other distribution within 60 days after the date of
declaration of the dividend or other distribution, if at the date of declaration such
payment would have complied with the provisions of this Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of the net proceeds of
the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the
Company), including upon exercise of an option or warrant, of, Qualified Equity Interests or
from the substantially concurrent contribution of equity capital with respect to Qualified
Equity Interests to the Company; provided that the amount of any such net proceeds that are
utilized for any such Restricted Payment shall be excluded from Section 4.11(a)(3)(B);




     (3) the payment, defeasance, redemption, repurchase or other acquisition or retirement
for value of Indebtedness of the Company or any of its Restricted Subsidiaries that is
contractually subordinated to the Notes or to any Guarantee with the net proceeds from a
substantially concurrent incurrence of Permitted Refinancing Indebtedness or in exchange for
Qualified Equity Interests;




     (4) the payment of any dividend or other distribution (or, in the case of any
partnership, limited liability company or similar entity, any similar distribution) by a
Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata
basis taking into account the relative preferences, if any, of the various classes of Equity
Interests in such Restricted Subsidiary;




     (5) the repurchase, redemption or other acquisition or retirement for value of any
Qualified Equity Interests of the Company or any of its Restricted Subsidiaries held by any
current or former officer, director, consultant or employee of the Company or any of its
Restricted Subsidiaries (or Heirs or other permitted transferees thereof); provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired Equity
Interests may not exceed $3.0 million in any calendar year; provided, further, that such
amount may be increased by an amount not to exceed:




     (A) the cash proceeds from the sale of Qualified Equity Interests of the
Company to directors, officers, employees or consultants of the Company or any of
its Restricted Subsidiaries that occurs after the Issue Date (provided that the
amount of such cash proceeds utilized for any such repurchase, redemption,
acquisition or other retirement shall not increase the amount available for
Restricted Payments under Section 4.11(a)(3)(B)); plus




     (B) the cash proceeds of key-man life insurance policies received by the
Company or any Restricted Subsidiary after the Issue Date;



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provided that to the extent that any portion of the $3.0 million annual limit on such
redemptions or repurchases is not utilized in any year, such unused portion may be carried
forward and be utilized in one or more subsequent years;




     (6) cancellation of Indebtedness owing to the Company from members of management of the
Company in connection with a repurchase of Qualified Equity Interests of the Company
pursuant to any management equity plan or stock option plan or any other management or
employee benefit plan or other agreement or arrangement approved by the Board of Directors
to the extent such Indebtedness was issued to such member of management as consideration for
the purchase of the Qualified Equity Interests so repurchased;




     (7) so long as no Default or Event of Default has occurred and is continuing or would
result thereby, any dividend or distribution consisting of Equity Interests of an
Unrestricted Subsidiary or the proceeds of the sale of Equity Interests of an Unrestricted
Subsidiary;




     (8) the repurchase of Equity Interests deemed to occur upon the exercise of options,
warrants or other convertible securities to the extent such Equity Interests represent a
portion of the exercise price of those options, warrants or other convertible securities and
cash payments in lieu of the issuance of fractional shares in connection with the exercise
of options, warrants or other convertible securities;




     (9) so long as no Default or Event of Default has occurred and is continuing or would
result thereby, the declaration and payment of cash dividends on Designated Preferred Stock
in accordance with the certificate of designations therefor; provided that at the time of
issuance of such Designated Preferred Stock, the Company would, after giving pro forma
effect thereto as if such issuance had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a);




     (10) so long as no Default or Event of Default has occurred and is continuing or would
result thereby, the declaration and payment of cash dividends to holders of any class or
series of Disqualified Stock of the Company issued in accordance with Section 4.10;




     (11) payments made to purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness of the Company or any of its Restricted Subsidiaries that is
contractually subordinated to the Notes or to any Guarantee (i) following the occurrence of
a Change of Control, at a purchase price not greater than 101% of the outstanding principal
amount (or accreted value, in the case of any debt issued at a discount from its principal
amount at maturity) thereof, plus accrued and unpaid interest, if any, after the Company and
its Restricted Subsidiaries have satisfied their obligations with respect to a Change of
Control Offer set forth under Section 4.09 or (ii) with the Excess Proceeds of one or more
Asset Sales not involving Collateral, at a purchase price not greater than 100% of the
principal amount (or accreted value, in the case of any debt issued at a discount from its
principal amount at maturity) thereof, plus accrued and unpaid interest, if any, after the
Company and its Restricted Subsidiaries have satisfied their obligations with respect to
such Excess Proceeds pursuant to Section 4.13(I) to the extent that such subordinated
Indebtedness is required to be repurchased or redeemed pursuant to the terms thereof as a
result of such Change of Control or Asset Sale;




     (12) payments pursuant to clause (6) of Section 4.14(b);



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     (13) so long as no payment Default or Event of Default has occurred and is continuing
or would result thereby, the payment of cash dividends on the Company’s shares of common
stock in the aggregate amount per fiscal quarter not to exceed $0.0666 per share for each
share of common stock of the Company outstanding as of the one record date for dividends
payable in respect of such fiscal quarter (as such amount shall be appropriately adjusted
for any stock splits, stock dividends, reverse stock splits, stock consolidations and
similar transactions); and




     (14) other Restricted Payments in an aggregate amount not to exceed $25.0 million since
the Issue Date.



          The amount of all Restricted Payments (other than cash and Cash Equivalents) shall be the Fair
Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to
the Restricted Payment.




          (c) For purposes of determining compliance with this covenant, in the event that a Restricted
Payment permitted pursuant to this Section 4.11 or a Permitted Investment meets the criteria of
more than one of the categories of Restricted Payment described in clauses (1) through (14) above
or one or more clauses of the definition of Permitted Investment, the Company shall be permitted to
classify such Restricted Payment or Permitted Investment (or any portion thereof) on the date it is
made, or later reclassify, all or a portion of such Restricted Payment or Permitted Investment, in
any manner that complies with this covenant, and such Restricted Payment or Permitted Investment
shall be treated as having been made pursuant to only one of such clauses of this Section 4.11 or
of the definition of Permitted Investments.





			
	SECTION 4.12.	 	Limitations on Liens.





          (a) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any
Indebtedness or any related guarantee, on any asset of the Company or any Restricted Subsidiary,
whether owned on the Issue Date or thereafter acquired, except Permitted Liens, unless
contemporaneously therewith:





     (1) in the case of any Lien securing an obligation that ranks pari passu with the Notes
or a Guarantee, effective provision is made to secure the Notes or such Guarantee, as the
case may be, at least equally and ratably with or prior to such obligation with a Lien on
the same collateral; and




     (2) in the case of any Lien securing an obligation that is subordinated in right of
payment to the Notes or a Guarantee, effective provision is made to secure the Notes or such
Guarantee, as the case may be, with a Lien on the same collateral that is prior to the Lien
securing such subordinated obligation, in each case, for so long as such obligation is
secured by such Lien (such Lien, the “Primary Lien”).



          Notwithstanding the foregoing, the Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien under any
of clauses (1), (3), (7), (16), (24) or (25) of the definition of “Permitted Liens” on any asset of
the Company or any Restricted Subsidiary that secures obligations under any Indebtedness or any
related guarantee, if such Lien is junior or subordinated in priority to any other Lien on such
asset that secures obligations under any other Indebtedness or any related guarantee of the Company
or any Restricted Subsidiary






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pursuant to an agreement which the Company or a Restricted Subsidiary is a party or the terms of
which have been accepted, acknowledged or consented to by the Company or any Restricted Subsidiary
in writing.




          Notwithstanding the foregoing, the Co-Issuers will not and will not permit any Guarantor to,
create, incur, assume or suffer to exist any Lien (other than in favor of the Collateral Trustee on
behalf of the Trustee for the benefit of the Holders) upon any of the Collateral other than
Permitted Liens and those Liens permitted by the Security Documents and, further, the Company will
not and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume
or suffer to exist any Lien on any Capital Stock, Intercompany Debt or other securities issued by
any Mortgaged Vessel Guarantor other than in favor of the Collateral Trustee on behalf of the
Trustee for the benefit of the Holders.




          (b) Any Lien created for the benefit of the Holders pursuant to Section 4.12(a) shall
automatically and unconditionally be released and discharged upon the release and discharge of the
Primary Lien, without any further action on the part of any Person.




SECTION 4.13. Limitations on Asset Sales.




          (I) With respect to all Asset Sales not involving Collateral:





     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale involving assets or Equity Interests other than Collateral unless:




     (1) the Company or any of its Restricted Subsidiaries receives consideration at
the time of the Asset Sale at least equal to the Fair Market Value of the assets or
Equity Interests issued or sold or otherwise disposed of; and




     (2) at least 75% of the consideration received in the Asset Sale by the Company
or such Restricted Subsidiary is in the form of cash or Cash Equivalents.




     (b) For purposes of Section 4.13(I)(a), each of the following shall be deemed to be
cash:




     (1) any Indebtedness or other liabilities, as shown on the Company’s most
recent consolidated balance sheet or the notes thereto, of the Company or any of its
Restricted Subsidiaries (other than liabilities that are expressly subordinated to
the Notes or any Guarantee) that are assumed, repaid or retired by the transferee
(or a third party on behalf of the transferee) of any such assets;




     (2) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee or any other Person on account of
such Asset Sale that are, within 180 days of the Asset Sale, converted, sold or
exchanged by the Company or such Restricted Subsidiary into cash or Cash
Equivalents, to the extent of the cash or Cash Equivalents received in that
conversion, sale or exchange;




     (3) the Fair Market Value of (i) any assets (other than securities and other
than assets that are classified as current assets under GAAP) received by the
Company or any Restricted Subsidiary to be used by it in a Permitted Business
(including, without limitation, Vessels and Related Assets), (ii) Capital Stock in a
Person that is a Restricted Subsidiary or in a Person engaged in a Permitted
Business that shall become a Restricted Subsidiary immediately upon the acquisition
of such Person by the Company or (iii) a combination of (i) and (ii); and



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     (4) any Designated Non-cash Consideration received by the Company or any
Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value,
taken together with all other Designated Non-cash Consideration received pursuant to
this Section 4.13(I)(b) that is at that time outstanding, not to exceed the greater
of (x) $30.0 million and (y) 3.0% of Total Tangible Assets of the Company at the
time of the receipt of such Designated Non-cash Consideration, with the Fair Market
Value of each item of Designated Non-cash Consideration being measured at the time
received and without giving effect to subsequent changes in value.




     (c) Within 365 days (subject to extensions as provided in clause (d) below) after the
receipt of any Net Proceeds from an Asset Sale involving assets other than Collateral, the
Company or any of its Restricted Subsidiaries shall apply such Net Proceeds to:




     (1) repay or prepay any and all obligations under the Credit Facilities or any
other Secured Indebtedness and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;




     (2) acquire all or substantially all of the assets of, or any Capital Stock of,
a Person engaged in a Permitted Business; provided that in the case of acquisition
of Capital Stock of any Person, such Person is or becomes a Restricted Subsidiary of
the Company;




     (3) make a capital expenditure;




     (4) acquire other assets that are not classified as current assets under GAAP
and that are used or useful in a Permitted Business (including, without limitation,
Vessels and Related Assets);




     (5) make an Asset Sale Offer (and purchase or redeem other pari passu
Indebtedness containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets) in
accordance with the provisions of this Section 4.13(I) and the other provisions of
this Indenture; and/or




     (6) any combination of the transactions permitted by the foregoing clauses (1)
through (5).




     (d) A (A) binding contract to apply Net Proceeds in accordance with clauses (c)(2)
through (4) above shall toll the 365-day period in respect of such Net Proceeds or
(B) determination by the Company to potentially apply all or a portion of such Net Proceeds
towards the exercise an outstanding Vessel Purchase Option Contract shall toll the 365-day
period in respect of such Net Proceeds, in each case, for a period not to exceed 365 days
from the expiration of the aforementioned 365-day period, provided that such binding
contract and such determination, in each case, shall be treated as a permitted application
of Net Proceeds from the date of such binding contract until and only until the earlier of
(x) the date on which such acquisition or expenditure is consummated and (y) (i) in the case
of any Vessel Construction Contract or any Exercised Vessel Purchase Option Contract
(including any outstanding Vessel Purchase Option Contract exercised during the 365 day
period referenced in clause (B) above), the date of expiration or termination of such Vessel
Construction Contract or Exercised Vessel Purchase Option Contract and (ii) otherwise, the
365th day following the expiration of the aforementioned 365-day period (clause (i) or
clause (ii) as applicable, the “Reinvestment Termination Date”). If such acquisition or
expenditure is not consummated on or before the Reinvestment Termination Date



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and the Company (or the applicable Restricted Subsidiary, as the case may be) shall not
have applied such Net Proceeds pursuant to clauses (c)(1) through (6) above on or before the
Reinvestment Termination Date, such binding contract shall be deemed not to have been a
permitted application of the Net Proceeds.



     Pending the final application of any Net Proceeds, the Company or any of its Restricted
Subsidiaries may temporarily reduce outstanding Indebtedness or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.




     (e) Any Net Proceeds from Asset Sales involving assets other than Collateral that are
not applied or invested as provided in Section 4.13(I)(c) shall constitute “Excess
Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the
Co-Issuers shall make an offer (an “Asset Sale Offer”) to all Holders and all holders of
other pari passu Indebtedness containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets
to purchase the maximum principal amount of Notes and such other pari passu Indebtedness
that may be required to be purchased out of the Excess Proceeds (the “Excess Proceeds
Payment Amount”). The offer price for the Notes in any Asset Sale Offer shall be equal to
100% of the principal amount of the Notes plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date of purchase (the “Asset Sale Offered Price”), and
shall be payable in cash, and the offer or redemption price for such pari passu Indebtedness
shall be as set forth in the related documentation governing such Indebtedness. If any
Excess Proceeds remain after consummation of an Asset Sale Offer, such Excess Proceeds may
be used for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale
Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the
Co-Issuers or the agent for such other pari passu Indebtedness shall select such other pari
passu Indebtedness to be purchased on a pro rata basis (with adjustments so that no Notes or
other pari passu Indebtedness are purchased, redeemed or repaid in unauthorized
denominations). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero.




     (f) Upon the commencement of an Asset Sale Offer, the Co-Issuers shall send, or cause
to be sent, by first class mail, a notice to the Trustee and to each Holder at its
registered address. The notice shall contain all instructions and materials necessary to
enable such Holder to tender Notes pursuant to the Asset Sale Offer. Any Asset Sale Offer
shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:




     (1) that the Asset Sale Offer is being made pursuant to this Section 4.13(I)
and that, to the extent lawful, all Notes tendered and not withdrawn shall be
accepted for payment (unless prorated);




     (2) the Excess Proceeds Payment Amount, the Asset Sale Offered Price, and the
date on which Notes tendered and accepted for payment shall be purchased, which date
shall be at least 30 days and not later than 60 days from the date such notices is
mailed (the “Asset Sale Payment Date”);




     (3) that any Notes not tendered or accepted for payment shall continue to
accrue interest in accordance with the terms thereof;




     (4) that, unless the Co-Issuers default in making such payment, any Notes
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest
on and after the Asset Sale Payment Date;



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     (5) that Holders electing to have any Notes purchased pursuant to any Asset
Sale Offer shall be required to surrender the Notes, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by
book-entry transfer, to the Co-Issuers, a depository, if appointed by the
Co-Issuers, or the Paying Agent at the address specified in the notice at least
three Business Days before the Asset Sale Payment Date;




     (6) that Holders shall be entitled to withdraw their election if the
Co-Issuers, the Depository or the Paying Agent, as the case may be, receives, not
later than two Business Days prior to the Asset Sale Payment Date, a notice setting
forth the name of the Holder, the principal amount of the Note the Holder delivered
for purchase and a statement that such Holder is withdrawing its election to have
such Note purchased;




     (7) that if the aggregate principal amount of Notes surrendered by Holders
exceeds the Excess Proceeds Payment Amount, the Co-Issuers shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed appropriate
by the Co-Issuers so that only Notes in denominations of $2,000 or integral
multiples of $1,000 in excess thereof, shall be purchased); and




     (8) that Holders whose Notes were purchased only in part shall be issued new
Notes equal in principal amount to the unpurchased portion of the Notes surrendered
(or transferred by book-entry).




     (g) On the Asset Sale Payment Date, the Co-Issuers shall, to the extent lawful: (1)
accept for payment all Notes or portions thereof properly tendered pursuant to the Asset
Sale Offer, subject to pro ration if the aggregate Notes tendered exceed the Excess Proceeds
Payment Amount allocable to the Notes; (2) deposit with the Paying Agent U.S. Legal Tender
equal to the lesser of the Excess Proceeds Payment Amount allocable to the Notes and the
amount sufficient to pay the Asset Sale Offered Price in respect of all Notes or portions
thereof so tendered; and (3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers’ Certificate stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Co-Issuers. The Co-Issuers shall inform
the Holders of the results of the Asset Sale Offer on or as soon as practicable after the
Asset Sale Payment Date.




     (h) The Paying Agent shall promptly mail or pay by wire transfer to each Holder whose
Notes have been properly tendered the Asset Sale Offered Price for such Notes, and the
Trustee shall promptly authenticate pursuant to an Authentication Order and mail (or cause
to be transferred by book-entry) to each Holder a new Note equal in principal amount to any
unrepurchased portion of the Notes surrendered, if any; provided that each such new Note
shall be in principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
So long as no payment Default or Event of Default has occurred and is continuing, and to the
extent not applied to make payments on the Notes, the Paying Agent shall return to the
Co-Issuers any cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Asset Sale Offered Price.




     However, if the Asset Sale Payment Date is on or after a Record Date and on or before
the related Interest Payment Date, any accrued and unpaid interest shall be paid to the
Person in whose name a Note is registered at the close of business on such Record Date, and
no additional interest shall be payable to Holders who tender Notes pursuant to the Asset
Sale Offer.



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     (i) The Co-Issuers shall comply with the requirements of any securities laws and
regulations thereunder to the extent those laws and regulations are applicable in connection
with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section 4.13, the
Co-Issuers shall comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under this Section 4.13(I) by virtue of such
compliance.



          (II) With respect to all Asset Sales involving Collateral:





     (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale involving Collateral unless:




     (1) the Company or any of its Restricted Subsidiaries receives consideration at
the time of the Asset Sale at least equal to the Fair Market Value of the assets or
Equity Interests sold or otherwise disposed of;




     (2) such Asset Sale is either of (i) the Company’s or the relevant Restricted
Subsidiary’s entire interest in the applicable Mortgaged Vessel (the “Sold Mortgaged
Vessel”) together with the applicable Charters, freights and hires, insurance and
related agreements (collectively, the “Related Agreements”); provided that the
Company may elect to sell only the Sold Mortgaged Vessel and retain all or any
portion of the Related Agreements, provided that if any such Related Agreements are
transferred to a Subsidiary that is not a Mortgaged Vessel Guarantor, then the
Company or such Mortgaged Vessel Guarantor shall receive either (x) Qualified
Collateral having a Fair Market Value that is not less than the Fair Market Value of
such Related Agreements or (y) cash in an amount equal to the Fair Market Value of
such Related Agreement which it shall immediately deliver to the Collateral Trustee,
which amounts shall constitute Trust Monies hereunder or (ii) all the Capital Stock
of the Restricted Subsidiary that owns such Mortgaged Vessel and related assets;




     (3) the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary consists entirely of either (x) cash or Cash Equivalents or
(y) Qualified Collateral having a Fair Market Value that is not less than the Fair
Market Value of the Collateral that is the subject of such Asset Sale;




     (4) no Default or Event of Default shall have occurred and be continuing; and




     (5) such Asset Sale is made in compliance with the provisions described under
Section 11.04.




     (b) Within 365 days (subject to extension as provided in clause (c) below) after the
receipt of any Net Proceeds from an Asset Sale involving Collateral, the Company or the
applicable Restricted Subsidiary shall apply such Net Proceeds to:




     (1) provided that no Default or Event of Default shall have occurred and be
continuing, substitute one or more Qualified Vessels (and to make any Permitted
Repairs with respect thereto) for such Sold Mortgaged Vessel and make such Qualified
Vessel(s) subject to the Lien of this Indenture and the applicable Security
Documents in accordance with the provisions thereof described under Section 11.04
and Section 11.09(a);



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     (2) make a Collateral Sale Offer in accordance with the provisions of this
Section 4.13(II) and the other provisions of this Indenture; and/or




     (3) any combination of the transactions permitted by the foregoing clauses (1)
and (2).




     (c) A (A) binding contract to apply Net Proceeds in accordance with clause (b)(1) above
will toll the 365-day period in respect of such Net Proceeds or (B) determination by the
Company to potentially apply all or a portion of such Net Proceeds towards the exercise an
outstanding Vessel Purchase Option Contract will toll the 365-day period in respect of such
Net Proceeds, in each case, for a period not to exceed 365 days from the expiration of the
aforementioned 365-day period, provided that such binding contract and such determination,
in each case, shall be treated as a permitted application of Net Proceeds from the date of
such binding contract until and only until the earlier of (x) the date on which such
acquisition or expenditure is consummated and (y) (i) in the case of any Vessel Construction
Contract or any Exercised Vessel Purchase Option Contract (including any outstanding Vessel
Purchase Option Contract exercised during the 365 day period referenced in clause (B)
above), the date of expiration or termination of such Vessel Construction Contract or
Exercised Vessel Purchase Option Contract and (ii) otherwise, the 365th day following the
expiration of the aforementioned 365-day period (clause (i) or clause (ii) as applicable,
the “Collateral Proceeds Reinvestment Termination Date”). If such acquisition or
expenditure is not consummated on or before the Collateral Proceeds Reinvestment Termination
Date and the Company (or the applicable Mortgaged Vessel Guarantor, as the case may be)
shall not have applied such Net Proceeds pursuant to clause (b)(1) above on or before the
Collateral Proceeds Reinvestment Termination Date, such binding contract shall be deemed not
to have been a permitted application of the Net Proceeds.




     (d) Any Net Proceeds from Asset Sales involving Collateral that are not applied or
invested as provided in Section 4.13(II)(b) will constitute “Excess Collateral Proceeds.”
When the aggregate amount of Excess Collateral Proceeds exceeds $25.0 million, the
Co-Issuers will make an offer (a “Collateral Sale Offer”) to all Holders to purchase the
maximum principal amount of Notes that may be required to be purchased out of the Excess
Collateral Proceeds (the “Excess Collateral Proceeds Payment Amount”). The offer price for
the Notes in any Collateral Sale Offer will be equal to 100% of principal amount of the
Notes plus accrued and unpaid interest and Additional Interest thereon, if any, to the date
of purchase (the “Collateral Sale Offered Price”), and will be payable in cash. If any
Excess Collateral Proceeds remain after consummation of a Collateral Sale Offer, those
Excess Collateral Proceeds shall be retained as Trust Monies. If the aggregate principal
amount of Notes tendered into such Collateral Sale Offer exceeds the amount of Excess
Collateral Proceeds, the trustee will select the Notes to be purchased on a pro rata basis.
Upon completion of each Collateral Sale Offer, the amount of Excess Collateral Proceeds will
be reset at zero.




     (e) Whenever Net Proceeds from any Asset Sale involving Collateral are received by the
Co-Issuers, such Net Proceeds shall be retained by the Collateral Trustee as Trust Monies
constituting Collateral subject to disposition as provided in this Section 4.13(II) or as
provided under Sections 11.04 and 12.02. At the written direction of the Co-Issuers, such
Net Proceeds may be invested by the Collateral Trustee in Cash Equivalents in which the
Collateral Trustee can maintain a perfected security interest.




     (f) Upon the commencement of a Collateral Sale Offer, the Co-Issuers shall send, or
cause to be sent, by first class mail, a notice to the Trustee and to each Holder at is
registered address. The notice shall contain all instructions and materials necessary to
enable such Holder to



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tender Notes pursuant to the Collateral Sale Offer. Any Collateral Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Collateral Sale Offer,
shall state:




     (1) that the Collateral Sale Offer is being made pursuant to this Section
4.13(II) and that, to the extent lawful, all Notes tendered and not withdrawn shall
be accepted for payment (unless prorated);




     (2) the Excess Collateral Proceeds Payment Amount, the Collateral Sale Offered
Price, and the date on which Notes tendered and accepted for payment shall be
purchased, which date shall be at least 30 days and not later than 60 days from the
date such notices is mailed (the “Collateral Sale Payment Date”);




     (3) that any Notes not tendered or accepted for payment shall continue to
accrue interest in accordance with the terms thereof;




     (4) that, unless the Co-Issuers default in making such payment, any Notes
accepted for payment pursuant to the Collateral Sale Offer shall cease to accrue
interest on and after the Collateral Sale Payment Date;




     (5) that Holders electing to have any Notes purchased pursuant to any
Collateral Sale Offer shall be required to surrender the Notes, with the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed,
or transfer by book-entry transfer, to the Co-Issuers, a depository, if appointed by
the Co-Issuers, or the Paying Agent at the address specified in the notice at least
three Business Days before the Collateral Sale Payment Date;




     (6) that Holders shall be entitled to withdraw their election if the
Co-Issuers, the Depository or the Paying Agent, as the case may be, receives, not
later than two Business Days prior to the Collateral Sale Payment Date, a notice
setting forth the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing its election
to have such Note purchased;




     (7) that if the aggregate principal amount of Notes surrendered by Holders
exceeds the Excess Collateral Proceeds Payment Amount, the Co-Issuers shall select
the Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Co-Issuers so that only Notes in denominations of $2,000
or integral multiples of $1,000 in excess thereof, shall be purchased); and




     (8) that Holders whose Notes were purchased only in part shall be issued new
Notes equal in principal amount to the unpurchased portion of the Notes surrendered
(or transferred by book-entry).




     (g) On the Collateral Sale Payment Date, the Co-Issuers shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the
Collateral Sale Offer, subject to pro ration if the aggregate Notes tendered exceed the
Excess Collateral Proceeds Payment Amount allocable to the Notes; (2) deposit with the
Paying Agent U.S. Legal Tender equal to the lesser of the Excess Collateral Proceeds Payment
Amount allocable to the Notes and the amount sufficient to pay the Collateral Sale Offered
Price in respect of all Notes or portions thereof so tendered; and (3) deliver or cause to
be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate
stating the aggregate principal amount of Notes or portions thereof being repurchased by the
Co-Issuers. The Co-Issuers shall inform the Holders of



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the results of the Collateral Sale Offer on or as soon as practicable after the
Collateral Sale Payment Date.




     (h) The Paying Agent shall promptly mail or pay by wire transfer to each Holder whose
Notes have been properly tendered the Collateral Sale Offered Price for such Notes, and the
Trustee shall promptly authenticate pursuant to an Authentication Order and mail (or cause
to be transferred by book-entry) to each Holder a new Note equal in principal amount to any
unrepurchased portion of the Notes surrendered, if any; provided that each such new Note
shall be in principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
So long as no payment Default or Event of Default has occurred and is continuing, and to the
extent not applied to make payments on the Notes, the Paying Agent shall return to the
Co-Issuers any cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Collateral Sale Purchase Price.




     However, if the Collateral Sale Payment Date is on or after a Record Date and on or
before the related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such Record Date,
and no additional interest shall be payable to Holders who tender Notes pursuant to the
Collateral Sale Offer.




     (i) The Co-Issuers shall comply with the requirements of any securities laws and
regulations thereunder to the extent those laws and regulations are applicable in connection
with each repurchase of Notes pursuant to a Collateral Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section 4.13, the
Co-Issuers shall comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under this Section 4.13(II) by virtue of such
compliance.



SECTION 4.14. Limitations on Transactions with Affiliates.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter
into or make or amend any transaction, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate
Transaction”), unless:





     (1) the Affiliate Transaction is on terms that are not materially less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an unrelated
Person; and




     (2) the Company delivers to the Trustee:




     (a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $20.0 million, a Board
Resolution of the Board of Directors of the Company set forth in an Officers’
Certificate certifying that such Affiliate Transaction complies with this Section
4.14 and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors; and




     (b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions (i) involving aggregate consideration in excess of $50.0 million or
(ii) as to which there are no disinterested members of the Board of Directors, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by an independent
accounting, appraisal or investment



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banking firm of international standing qualified to perform the task for which
such firm has been engaged (as determined by the Company in good faith).



          (b) The following items shall not be deemed to be Affiliate Transactions and, therefore, shall
not be subject to Section 4.14(a):





     (1) director, officer, employee and consultant compensation, benefit, reimbursement and
indemnification agreements, plans and arrangements (and payment awards in connection
therewith) entered into by the Company or any of its Restricted Subsidiaries in the ordinary
course of business;




     (2) transactions between or among the Company and/or its Restricted Subsidiaries;




     (3) transactions with a Person (other than an Unrestricted Subsidiary of the Company)
that is an Affiliate of the Company solely because the Company owns, directly or through a
Restricted Subsidiary, an Equity Interest in, or controls, such Person;




     (4) any issuance of Qualified Equity Interests of the Company (other than Designated
Preferred Stock) to an Affiliate and the granting or performance of registration rights in
respect of any Qualified Equity Interests of the Company (other than Designated Preferred
Stock), which rights have been approved by the Board of Directors of the Company;




     (5) Restricted Payments that do not violate Section 4.11 and Investments consisting of
Permitted Investments;




     (6) the performance of obligations of the Company or any Restricted Subsidiary under
the terms of any agreement that is in effect as of or on the Issue Date (other than the
Management Agreement or the Administrative Services Agreement) and disclosed in the Offering
Memorandum or any amendment, modification, supplement, extension or renewal, from time to
time, thereto or any transaction contemplated thereby (including pursuant to any amendment,
modification, supplement, extension or renewal, from time to time, thereto) in any
replacement agreement thereto, so long as any such amendment, modification, supplement,
extension or renewal, or replacement agreement, is not materially more disadvantageous to
the Holders taken as a whole than the original agreement as in effect on the Issue Date;




     (7) the performance of obligations of the Company or any Restricted Subsidiary under
the terms of the Management Agreement and the Administrative Services Agreement as in effect
on the Issue Date or any amendment, modification, supplement, replacement, extension or
renewal, from time to time, thereto or any transaction contemplated thereby (including
pursuant to any amendment, modification, supplement, replacement, extension or renewal, from
time to time, thereto) so long as any such amendment, modification, supplement, replacement,
extension or renewal, or replacement agreement, is not materially more disadvantageous to
the Holders of Notes taken as a whole than the original agreement as in effect on the Issue
Date; provided, however, that notwithstanding anything to the contrary herein or in either
the Management Agreement or the Administrative Services Agreement, neither the Company nor
any Subsidiary shall agree (or acquiesce) to any changes to the fees, costs, charges or
other economic terms applicable to it pursuant to either such agreement (or any successor
agreement(s)), including, without limitation, upon the expiration of any fixed fee period
provided for therein as such agreement is in effect on the Issue Date, unless the Board of
Directors of the Company by majority vote of the disinterested members shall have determined
that such fees, costs, charges or other economic terms, as so changed, would continue to be
on terms that are not materially more disadvantageous taken as



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a whole to the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Restricted Subsidiary with
an unrelated Person (such determination to be evidenced by delivery to the Trustee of a copy
of each relevant Board Resolution of the Board of Directors of the Company with respect
thereto); and




     (8) transactions effected as part of a Qualified Securitization Transaction.



SECTION 4.15. Dividend and Other Payment Restrictions Affecting
Subsidiaries.




          (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any of its Restricted Subsidiaries to:





     (1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Company or any of
its Restricted Subsidiaries;




     (2) make loans or advances to the Company or any of its Restricted Subsidiaries; or




     (3) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.



          (b) However, the restrictions set forth in Section 4.15(a) shall not apply to encumbrances or
restrictions existing under or by reason of:





     (1) agreements, including, without limitation, those governing Existing Indebtedness
and Credit Facilities (including the Commitment Letter), as in effect on the Issue Date and
any amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements; provided that the amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings are not materially more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those agreements on the
Issue Date;




     (2) this Indenture, the Notes and the Note Guarantees;




     (3) applicable law, rule, regulation or order or governmental license, permit or
concession;




     (4) any instrument governing Indebtedness or Equity Interests of a Person acquired by
the Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness or Equity Interests were incurred or
issued in connection with such acquisition to provide funds to consummate such acquisition),
which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so
acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the
terms of this Indenture to be incurred;




     (5) customary provisions restricting assignments, subletting or other similar transfers
in contracts, licenses and other agreements (including, without limitation, leases and
agreements relating to intellectual property) entered into in the ordinary course of
business;



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     (6) purchase money obligations and Capital Lease Obligations that impose restrictions
on the property purchased or leased of the nature described in Section 4.15(a)(3);




     (7) any agreement for the sale or other disposition of a Restricted Subsidiary or an
asset that restricts distributions by that Restricted Subsidiary or transfers of such asset
pending the sale or other disposition;




     (8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;




     (9) Liens and agreements related thereto that were permitted to be incurred under the
provisions of Section 4.12 that limit the right of the debtor to dispose of the assets
subject to such Liens;




     (10) provisions limiting the disposition or distribution of assets or property
(including Capital Stock of any Person in which the Company has an Investment) in joint
venture agreements, stockholder agreements, partnership agreements, limited liability
company operating agreements, asset sale agreements, sale-leaseback agreements, stock sale
agreements and other similar agreements, which limitation is applicable in all material
respects only to the assets or property that are the subject of such agreements;




     (11) restrictions on cash or other deposits or net worth imposed under contracts
entered into in the ordinary course of business;




     (12) customary provisions restricting the disposition of real property interests set
forth in any easements or other similar agreements or arrangements of the Company or any
Restricted Subsidiary;




     (13) provisions restricting the transfer of any Capital Stock of an Unrestricted
Subsidiary;




     (14) Indebtedness of a Restricted Subsidiary incurred subsequent to the Issue Date
pursuant to the provisions of Section 4.10 (i) in respect of the subordination provisions,
if any, of such Indebtedness, (ii) if the encumbrances and restrictions contained in any
such Indebtedness taken as a whole are not materially less favorable to the Holders than the
encumbrances and restrictions contained in this Indenture or that may be contained in any
Credit Facility in accordance with this covenant or (iii) if such encumbrance or restriction
is customary in comparable financings (as determined in good faith by the Company) and
either (x) the Company determines in good faith that such encumbrance or restriction shall
not adversely affect in any material respect the Company’s ability to make principal or
interest payments on the Notes as and when due or (y) such encumbrance or restriction
applies only in the event of and during the continuance of a default under such
Indebtedness; and




     (15) Non-Recourse Debt or other encumbrances, restrictions or contractual requirements
of a Securitization Subsidiary in connection with a Qualified Securitization Transaction;
provided that such restrictions apply only to such Securitization Subsidiary or the
Securitization Assets that are subject to the Qualified Securitization Transaction.



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SECTION 4.16. Subsidiary Guarantees.




          (a) If the Company or any of its Restricted Subsidiaries acquires or creates a Wholly Owned
Restricted Subsidiary (or redesignates an Unrestricted Subsidiary as a Restricted Subsidiary and
such Restricted Subsidiary is a Wholly Owned Restricted Subsidiary) and such Wholly Owned
Restricted Subsidiary shall at any time have total assets with a book value in excess of $1.0
million, then such Wholly Owned Restricted Subsidiary (unless such Subsidiary is a Securitization
Subsidiary or is Navios Acquisition Finance or any other Subsidiary that at such time is a
co-issuer of the Notes) must become a Guarantor and shall, within 45 Business Days of the date on
which it was so acquired, created or redesignated or so capitalized:





     (1) execute and deliver to the Trustee a supplemental indenture substantially in the
form of Exhibit D, pursuant to which such Wholly Owned Restricted Subsidiary shall
unconditionally guarantee all of the Co-Issuers’ obligations under the Notes and this
Indenture on the terms set forth in this Indenture and, if such Wholly Owned Restricted
Subsidiary owns a Vessel required to become a Mortgaged Vessel, execute one or more Ship
Mortgages and the other Security Documents in favor of the Collateral Trustee pursuant to
which each such Vessel shall become a Mortgaged Vessel for all purposes under this Indenture
in each case as provided for under Section 11.09; and




     (2) deliver to the Trustee one or more Opinions of Counsel that such supplemental
indenture and Security Documents, if any, have been duly authorized, executed and delivered
by such Wholly Owned Restricted Subsidiary and constitutes a valid and legally binding and
enforceable obligation of such Wholly Owned Restricted Subsidiary, subject to customary
exceptions.



          Thereafter, such Wholly Owned Restricted Subsidiary shall be a Guarantor for all purposes of
this Indenture.




          (b) The Note Guarantee of a Guarantor shall automatically and unconditionally (without any
further action on the part of any Person) be released:





     (1) in connection with any sale or other disposition of all or substantially all of the
assets of that Guarantor (including by way of merger, consolidation or amalgamation) to a
Person that is not (either before or after giving effect to such transaction) the Company or
a Restricted Subsidiary of the Company, if the sale or other disposition does not violate
Section 4.13 or Section 4.14;




     (2) in connection with any sale or other disposition of a majority of the Capital Stock
of that Guarantor to a Person that is not (either before or after giving effect to such
transaction) the Company or a Subsidiary of the Company, if (x) such Guarantor would no
longer constitute a “Subsidiary ” under this Indenture and (y) the sale or other disposition
does not violate Section 4.13;




     (3) if the Company designates any Restricted Subsidiary that is a Guarantor to be an
Unrestricted Subsidiary in accordance with Section 4.18;




     (4) upon liquidation or dissolution of such Guarantor;




     (5) in the case of a Guarantor that is not a Wholly-Owned Restricted Subsidiary that
has voluntarily issued a Guarantee of the Notes, upon notice to the Trustee by the Company
of the designation of such Guarantor as non-Guarantor Restricted Subsidiary if (x) the Company
would



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be permitted to make an Investment in such Restricted Subsidiary at the time of such
release equal to the Fair Market Value of the Investment of the Company and its other
Restricted Subsidiaries in such Guarantor as either a Permitted Investment or pursuant to
Section 4.11 and (y) all transactions entered into by such Restricted Subsidiary while a
Guarantor would be permitted under this Indenture at the time its Guarantee is released; and




     (6) upon Legal Defeasance or Covenant Defeasance or satisfaction and discharge of the
Notes as provided below under Section 8.01, Section 8.03 and Section 8.04.



SECTION 4.17. Reports to Holders.



          (a) Whether or not the Company is then subject to Section 13(a) or 15(d) of the Exchange Act,
the Company shall furnish to the Trustee and the Holders, so long as the Notes are outstanding:





     (1) within 75 days after the end of each of the first three fiscal quarters in each
fiscal year, quarterly reports on Form 6-K (or any successor form) containing unaudited
financial statements (including a balance sheet and statement of income, changes in
stockholders’ equity and cash flow) and a management’s discussion and analysis of financial
condition and results of operations (or equivalent disclosure) for and as of the end of such
fiscal quarter (with comparable financial statements for the corresponding fiscal quarter of
the immediately preceding fiscal year);




     (2) within 150 days after the end of each fiscal year, an annual report on Form 20-F
(or any successor form) containing the information required to be contained therein for such
fiscal year; and




     (3) at or prior to such times as would be required to be filed or furnished to the SEC
if the Company was then a “foreign private issuer” subject to Section 13(a) or 15(d) of the
Exchange Act, all such other reports and information that the Company would have been
required pursuant thereto;


provided, however, that to the extent that the Company ceases to qualify as a “foreign private
issuer” within the meaning of the Exchange Act, whether or not the Company is then subject to
Section 13(a) or 15(d) of the Exchange Act, the Company shall furnish to the Trustee and the
Holders, so long as any Notes are outstanding, within 30 days of the respective dates on which the
Company would be required to file such documents with the SEC if it was required to file such
documents under the Exchange Act, all reports and other information that would be required to be
filed with (or furnished to) the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act.




          (b) In addition, whether or not required by the rules and regulations of the SEC, the Company
shall electronically file or furnish, as the case may be, a copy of all such information and
reports referred to in clauses (1) through (3) of Section 4.17(a) with the SEC for public
availability within the time periods specified therein (unless the SEC shall not accept such a
filing) and make such information available to securities analysts and prospective investors upon
request. In addition, Company agrees that, for so long as any Notes remain outstanding, it shall
furnish to the Holders and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.




          (c) Notwithstanding the foregoing provisions of this Section 4.17, the Company shall be deemed
to have furnished such reports referred to in Section 4.17(a) to the Trustee and the Holders if





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the
Company has filed such reports with the SEC via the EDGAR filing system and such reports are
publicly available.




SECTION 4.18. Limitations on Designation of Restricted and Unrestricted
Subsidiaries.




          The Board of Directors of the Company may designate any Subsidiary (other than Navios
Acquisition Finance or any other Subsidiary that is at such time a co-issuer of the Notes) to be an
Unrestricted Subsidiary if that designation would not cause a Default or cause a Default to be
continuing after such designation. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and
its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary shall be
deemed to be an Investment made as of the time of the designation and shall reduce the amount
available for Restricted Payments under Section 4.11 or under one or more clauses of the definition
of Permitted Investments, as determined by the Company. That designation shall only be permitted
if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may
redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would
not cause a Default or cause a Default to be continuing after such redesignation.




SECTION 4.19. Additional Interest Notice.




          In the event that the Co-Issuers are required to pay Additional Interest to Holders pursuant
to the Registration Rights Agreement, the Co-Issuers shall provide written notice (“Additional
Interest Notice”) to the Trustee of their obligation to pay Additional Interest no later than ten
days prior to the proposed payment date for the Additional Interest, and the Additional Interest
Notice shall set forth the amount of Additional Interest to be paid by the Co-Issuers on such
payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder
to determine the Additional Interest, or make any determination with respect to the nature, extent
or calculation of the amount of Additional Interest owed or with respect to the method employed in
such calculation of the Additional Interest.




SECTION 4.20. Payment of Additional Amounts.




          (a) All payments made by the Co-Issuers under or with respect to the Notes or by a Guarantor
under or with respect to its Note Guarantee shall be made free and clear of and without withholding
or deduction for or on account of any present or future Taxes imposed or levied by or on behalf of
any Taxing Authority in any jurisdiction in which a Co-Issuer or any Guarantor is organized or is
otherwise resident for tax purposes or any jurisdiction from or through which payment is made
(each, a “Relevant Taxing Jurisdiction”), unless such Co-Issuer or Guarantor is required to
withhold or deduct Taxes by law or by the official interpretation or administration thereof.




          (b) If a Co-Issuer or any Guarantor is required to withhold or deduct any amount for or on
account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with
respect to the Notes or the Note Guarantee of such Guarantor, the Co-Issuers or the relevant
Guarantor, as applicable, shall pay such additional amounts (“Additional Amounts”) as may be
necessary so that the net amount received by each Holder (including Additional Amounts) after such
withholding or deduction shall equal the amount the Holder would have received if such Taxes had
not been withheld or deducted; provided, however, that no Additional Amounts shall payable with
respect to any Tax:





     (1) that would not have been imposed, payable or due but for the existence of any
present or former connection between the Holder (or the beneficial owner of, or person
ultimately entitled to obtain an interest in, such Notes) and the Relevant Taxing
Jurisdiction (including being



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a citizen or resident or national of, or carrying on a
business or maintaining a permanent establishment in, or being physically present in, the
Relevant Taxing Jurisdiction) other than the mere holding of the Notes or enforcement of
rights under such Note or under a Guarantee or the receipt of payments in respect of such
Note or a Guarantee;




     (2) that would not have been imposed, payable or due but for the failure to satisfy any
certification, identification or other reporting requirements whether imposed by statute,
treaty, regulation or administrative practice; provided, however, that the Co-Issuers have
delivered a request to the Holder to comply with such requirements at least 30 days prior to
the date by which such compliance is required;




     (3) that would not have been imposed, payable or due if the presentation of Notes
(where presentation is required) for payment has occurred within 30 days after the date such
payment was due and payable or was duly provided for, whichever is later;




     (4) subject to Section 4.20(e), that is an estate, inheritance, gift, sales, excise,
transfer or personal property tax, assessment or charge; or




     (5) as a result of a combination of the foregoing clauses (1) through (4).




In addition, Additional Amounts shall not be payable if the beneficial owner of, or person
ultimately entitled to obtain an interest in, such Notes had been the Holder and such beneficial
owner would not be entitled to the payment of Additional Amounts by reason of clause (1), (2),
(3), (4) or (5) above. In addition, Additional Amounts shall not be payable with respect to any
Tax which is payable otherwise than by withholding from any payment under, or in respect of the
Notes or any Guarantee.



          (c) Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of
amounts based upon the principal amount of the Notes or of principal, premium, if any, interest or
Additional Interest, if any, or of any other amount payable under or with respect to any Note, such
mention shall be deemed to include mention of the payment of Additional Amounts to the extent that,
in such context, Additional Amounts are, were or would be payable in respect thereof.




          (d) Upon request, the Co-Issuers shall provide the Trustee with documentation satisfactory to
the Trustee evidencing the payment of Additional Amounts.




          (e) The Co-Issuers and the Guarantors shall pay any present or future stamp, court or
documentary taxes, or any similar taxes, charges or levies which arise in any Relevant Taxing
Jurisdiction from the execution, delivery or registration of the Notes, this Indenture or any other
document or instrument referred to therein, or the receipt of any payments with respect to or
enforcement of, the Notes or any Guarantee.




          (f) Notwithstanding anything to the contrary contained in this Indenture, the Co-Issuers and
the Guarantors may, to the extent required to do so by law, deduct or withhold income or other
similar taxes imposed by the United States of America from any payments under this Indenture;
provided that the foregoing shall not limit the obligation of the Co-Issuers and the Guarantors to
pay Additional Amounts as set forth in this Section 4.20.




SECTION 4.21. Loss of a Mortgaged Vessel.




          (a) If an Event of Loss occurs at any time with respect to a Mortgaged Vessel (the Mortgaged
Vessel suffering such Event of Loss being the “Lost Mortgaged Vessel”), the Company or





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the relevant
Restricted Subsidiary shall deposit all Event of Loss Proceeds with respect to such Event of Loss
with the Collateral Trustee as Trust Monies constituting Collateral subject to disposition as
provided in this Section 4.21 or as provided in Sections 11.04 and 12.02. Such amount is
hereinafter referred to as the “Loss Redemption Amount”.




          (b) Within 365 days (subject to extension as provided in clause (c) below) after the receipt
of any Event of Loss Proceeds, the Company or the applicable Restricted Subsidiary shall apply such
Event of Loss Proceeds to:





     (1) substitute one or more Qualified Vessels (and to make any Permitted Repairs with
respect thereto) for such Lost Mortgaged Vessel and make such Qualified Vessel(s) subject to
the Lien of this Indenture and the applicable Security Documents in accordance with the
provisions thereof described under Section 11.04 and Section 11.09(a);




     (2) make an Event of Loss Offer in accordance with the provisions of this Section 4.21
and the other provisions of this Indenture; and/or




     (3) any combination of the transactions permitted by the foregoing clauses (1) and (2).



          (c) A (A) binding contract to apply Event of Loss Proceeds in accordance with clause (b)(1)
above shall toll the 365-day period in respect of such Event of Loss Proceeds or (B) determination
by the Company to potentially apply all or a portion of such Event of Loss Proceeds towards the
exercise an outstanding Vessel Purchase Option Contract shall toll the 365-day period in respect of
such Event of Loss Proceeds, in each case, for a period not to exceed 365 days from the expiration
of the aforementioned 365-day period, provided that such binding contract and such determination,
in each case, shall be treated as a permitted application of Event of Loss Proceeds from the date
of such binding contract until and only until the earlier of (x) the date on which such acquisition
or expenditure is consummated and (y) (i) in the case of any Vessel Construction Contract or any
Exercised Vessel Purchase Option Contract (including any outstanding Vessel Purchase Option
Contract exercised during the 365 day period referenced in clause (B) above), the date of
expiration or termination of such Vessel Construction Contract or Exercised Vessel Purchase Option
Contract and (ii) otherwise, the 365th day following the expiration of the aforementioned 365-day
period (clause (i) or clause (ii) as applicable, the “Loss Proceeds Reinvestment Termination
Date”). If such acquisition or expenditure is not consummated on or before the Loss Proceeds
Reinvestment Termination Date and the Company (or the applicable Mortgaged Vessel Guarantor, as the
case may be) shall not have applied such Event of Loss Proceeds pursuant to clause (b)(1) above on
or before the Loss Proceeds Reinvestment Termination Date, such binding contract shall be deemed
not to have been a permitted application of the Event of Loss Proceeds.




          (d) Any Event of Loss Proceeds that are not applied or invested as provided in Section 4.21(b)
shall constitute “Excess Loss Proceeds.” When the aggregate amount of Excess Loss Proceeds exceeds
$15.0 million, the Co-Issuers shall make an offer (an “Event of Loss Offer”) to all Holders to
purchase the maximum principal amount of Notes that may be required to be purchased out of the
Excess Loss Proceeds (the “Excess Loss Proceeds Payment Amount”). The offer price for the Notes in
any Event of Loss Offer shall be equal to 100% of the aggregate principal amount of the Notes plus
accrued and unpaid interest and Additional Interest thereon, if any, to the date of purchase (the
“Event of Loss Offered Price”), and shall be payable in cash. If any Excess Loss Proceeds remain
after consummation of an Event of Loss Offer, those Excess Loss Proceeds shall be retained as Trust
Monies. If the aggregate principal amount of Notes tendered into such Event of Loss Offer exceeds
the amount of Excess Loss Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. Upon completion of each Event of Loss Offer, the amount of Excess Loss Proceeds shall
be reset at zero.





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          (e) Whenever Event of Loss Proceeds from any Event of Loss are received by the Co-Issuers,
such Event of Loss Proceeds shall be retained by the Collateral Trustee as Trust Monies
constituting Collateral subject to disposition as provided in this Section 4.21 or as provided
under Sections 11.04 and 12.02. At the direction of the Co-Issuers, such Event of Loss Proceeds
may be invested by the Collateral Trustee in Cash Equivalents in which the Collateral Trustee can
maintain a perfected security interest.




          (f) Upon the commencement of an Event of Loss Offer, the Co-Issuers shall send, or cause to be
sent, by first class mail, a notice to the Trustee and to each Holder at its registered address.
The notice shall contain all instructions and materials necessary to enable such Holder to tender
Notes pursuant to the Event of Loss Offer. Any Event of Loss Offer shall be made to all Holders.
The notice, which shall govern the terms of the Event of Loss Offer, shall state:





     (1) that the Event of Loss Offer is being made pursuant to this Section 4.21 and that,
to the extent lawful, all Notes tendered and not withdrawn shall be accepted for payment
(unless prorated);




     (2) the Excess Loss Proceeds Payment Amount, the Event of Loss Offered Price, and the
date on which Notes tendered and accepted for payment shall be purchased, which date shall
be at least 30 days and not later than 60 days from the date such notices is mailed (the
“Event of Loss Payment Date”);




     (3) that any Notes not tendered or accepted for payment shall continue to accrue
interest in accordance with the terms thereof;




     (4) that, unless the Co-Issuers default in making such payment, any Notes accepted for
payment pursuant to the Event of Loss Offer shall cease to accrue interest on and after the
Event of Loss Payment Date;




     (5) that Holders electing to have any Notes purchased pursuant to any Event of Loss
Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to
the Co-Issuers, a depository, if appointed by the Co-Issuers, or the Paying Agent at the
address specified in the notice at least three Business Days before the Event of Loss
Payment Date;




     (6) that Holders shall be entitled to withdraw their election if the Co-Issuers, the
Depository or the Paying Agent, as the case may be, receives, not later than two Business
Days prior to the Event of Loss Payment Date, a notice setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing its election to have such Note purchased;




     (7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the
Excess Loss Proceeds Payment Amount, the Co-Issuers shall select the Notes to be purchased
on a pro rata basis (with such adjustments as may be deemed appropriate by the Co-Issuers so
that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess
thereof, shall be purchased); and




     (8) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry).



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          (g) On the Event of Loss Payment Date, the Co-Issuers shall, to the extent lawful: (1) accept
for payment all Notes or portions thereof properly tendered pursuant to the Event of Loss Offer,
subject to pro ration if the aggregate Notes tendered exceed the Excess Loss Proceeds Payment
Amount allocable to the Notes; (2) deposit with the Paying Agent U.S. Legal Tender equal to the
lesser of the Excess Loss Proceeds Payment Amount allocable to the Notes and the amount sufficient
to pay the Event of Loss Offered Price in respect of all Notes or portions thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an
Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being
repurchased by the Co-Issuers. The Co-Issuers shall inform the Holders of the results of the Event
of Loss Offer on or as soon as practicable after the Event of Loss Payment Date.




          (h) The Paying Agent shall promptly mail or pay by wire transfer to each Holder whose Notes
have been properly tendered the Event of Loss Offered Price for such Notes, and the Trustee shall
promptly authenticate pursuant to an Authentication Order and mail (or cause to be transferred by
book-entry) to each Holder a new Note equal in principal amount to any unrepurchased portion of the
Notes surrendered, if any; provided that each such new Note shall be in principal amount of $2,000
or an integral multiple of $1,000 in excess thereof. So long as no payment Default or Event of
Default has occurred and is continuing, and to the extent not applied to make payments on the
Notes, the Paying Agent shall return to the Co-Issuers any cash that remains unclaimed, together
with interest, if any, thereon, held by them for the payment of the Event of Loss Offered Price.




          However, if the Event of Loss Payment Date is on or after a Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose
name a Note is registered at the close of business on such Record Date, and no additional interest
shall be payable to Holders who tender Notes pursuant to the Event of Loss Offer.




          (i) The Co-Issuers shall comply with the requirements of any securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Event of Loss Offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.21, the Co-Issuers shall comply with
the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.21 by virtue of such compliance.




SECTION 4.22. Limitation on Business Activities of Navios Acquisition
Finance.




          Navios Acquisition Finance shall not hold any material assets, become liable for any material
obligations, engage in any trade or business, or conduct any business activity, other than the
issuance of the Equity Interest to the Company or any Wholly Owned Restricted Subsidiary, the
incurrence of Indebtedness as a co-obligor or guarantor of Indebtedness incurred by the Company or
any Restricted Subsidiary, including the Notes, that is permitted to be incurred by the Company or
any Restricted Subsidiary under Section 4.10 and activities incidental thereto. For so long as the
Company or any successor obligor under the Notes is a Person that is not incorporated in the United
States of America, any State of the United States or the District of Columbia, there will be a
Co-Issuer of the Notes that is a Wholly Owned Restricted Subsidiary of the Company and that is a
corporation organized and incorporated in the United States of America, any State of the United
States or the District of Columbia.







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ARTICLE FIVE




SUCCESSOR CORPORATION



SECTION 5.01. Mergers, Consolidations, Etc.




          (a) The Company may not, directly or indirectly: (1) consolidate, amalgamate or merge with or
into another Person (whether or not the Company is the surviving Person); or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the properties or assets of
the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:





     (1) either: (a) the Company is the surviving Person; or (b) the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other disposition has been made (x) is
a corporation, limited liability company, trust or limited partnership organized or existing
under the laws an Eligible Jurisdiction and (y) assumes all the obligations of the Company
under the Notes, this Indenture, the Security Documents and the Registration Rights
Agreement pursuant to agreements reasonably satisfactory to the Trustee;




     (2) immediately after giving effect to such transaction, no Default or Event of Default
exists; and




     (3) either (a) the Company or the Person formed by or surviving any such consolidation,
amalgamation or merger (if other than the Company), or to which such sale, assignment,
transfer, conveyance or other disposition has been made, shall, on the date of such
transaction after giving pro forma effect thereto and to any related financing transactions
as if the same had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.10(a) or (b) the Fixed Charge Coverage Ratio for
the Company or such surviving Person determined in accordance with Section 4.10(a) shall be
greater than the Fixed Charge Coverage Ratio test for the Company and its Restricted
Subsidiaries immediately prior to such transaction.



          In addition, the Company may not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other Person; provided that
the foregoing shall not prohibit the chartering out of Vessels in the ordinary course of business.




          For purposes of this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a
single transaction or series of transactions) of all or substantially all of the properties or
assets of one or more Restricted Subsidiaries, the Equity Interests of which constitute all or
substantially all of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.




          (b) The Company shall not permit any Guarantor to, directly or indirectly, consolidate,
amalgamate or merge with or into another Person (whether or not the Company or such Guarantor is
the surviving Person) unless:





     (1) subject to the Note Guarantee release provisions of Section 4.16, such Guarantor is
the surviving Person or the Person formed by or surviving any such consolidation,
amalgamation or merger (if other than the Company or a Guarantor) expressly assumes all the
obligations of such Guarantor under the Note Guarantee of such Guarantor, this Indenture,
the Security



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Documents and the Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee; and




     (2) immediately after such transaction, no Default or Event of Default exists.



          (c) This Section 5.01 shall not apply to a merger of the Company, a Guarantor or a Wholly
Owned Restricted Subsidiary of such Person with an Affiliate solely for the purpose, and with the
effect, of reorganizing the Company, a Guarantor or a Wholly Owned Restricted Subsidiary, as the
case may be, in an Eligible Jurisdiction. In addition, nothing in this Section 5.01 shall prohibit
any Restricted Subsidiary from consolidating or amalgamating with, merging with or into or
conveying, transferring or leasing, in one transaction or a series of transactions, all or
substantially all of its assets to the Company or another Restricted Subsidiary or reconstituting
itself in another jurisdiction for the purpose of reflagging a vessel.




ARTICLE SIX




DEFAULT AND REMEDIES



SECTION 6.01. Events of Default.




          Each of the following is an “Event of Default”:





     (1) default by a Co-Issuer or any Guarantor for 30 consecutive days in the payment when
due and payable of interest on, or Additional Interest, if any, with respect to, the Notes;




     (2) default by a Co-Issuer or any Guarantor in the payment when due and payable of the
principal of or premium, if any, on the Notes;




     (3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described under Section 5.01 after receipt by the Company or such Subsidiary, as
applicable, of a written notice specifying the default (and demanding that such default be
remedied and stating that such notice is a “Notice of Default”) from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Notes;




     (4) failure by the Company or any of its Restricted Subsidiaries to comply with any
other covenants in this Indenture (other than any default in clause (3) above) for 60
consecutive days after notice has been given to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes
then outstanding specifying the default and demanding compliance with any of the other
covenants in this Indenture;




     (5) failure by the Company or any of its Restricted Subsidiaries to comply with any
term, covenant, condition or provision of the Security Documents, for 60 consecutive days
after notice has been given to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
specifying the default and demanding compliance with the Security Documents;




     (6) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken



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together, would constitute a Significant Subsidiary, whether such Indebtedness now exists
or is created after the Issue Date, if that default:




     (a) is caused by a failure to pay the principal amount of any such Indebtedness
at its stated final maturity after giving effect to any applicable grace periods (a
“Payment Default”); or




     (b) results in the acceleration of such Indebtedness prior to its stated final
maturity;



and, in the case of clauses (a) and (b) above, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so accelerated,
aggregates $25.0 million or more;




     (7) failure by the Company or any Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary to pay final
judgments aggregating in excess of $25.0 million in excess of amounts that are covered by
insurance or which have been bonded, which judgments are not paid, discharged or stayed for
a period of 60 days after such judgment or judgments become final and non-appealable;




     (8) except as permitted by this Indenture including upon the permitted release of the
Note Guarantee, any Guarantee of a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to
be in full force and effect or any Guarantor or any Person acting on behalf of any Guarantor
shall deny or disaffirm in writing its obligations under its Guarantee;




     (9) the occurrence of any event of default under any Security Document, including that
any of the Security Documents ceases to be in full force and effect or any of the Security
Documents ceases to give the Collateral Trustee, in any material respect, the Liens, rights,
powers and privileges purported to be created thereby (other than by operation of the
provisions of the Security Documents);




     (10) either a Co-Issuer or any of the Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary as debtor in an involuntary case, pursuant to or within the meaning
of any Bankruptcy Law:




     (a) commences a voluntary case or proceeding,




     (b) consents to the entry of an order for relief or decree against it in an
involuntary case or proceeding,




     (c) consents to the appointment of a Custodian of it or for all or
substantially all of its assets, or




     (d) makes a general assignment for the benefit of its creditors;




     (e) admits in writing its inability to pay its debts generally as they become
due; or



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     (f) files a petition or answer or consent seeking reorganization or relief; and




     (11) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (a) is for relief against a Co-Issuer or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary as debtor in an involuntary case
or proceeding;




     (b) appoints a Custodian of a Co-Issuer or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, or a Custodian for all or
substantially all of the assets of a Co-Issuer or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary or adjudges any such entity or
group a bankrupt or insolvent or approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of such
entity or group; or




     (c) orders the winding up or liquidation of a Co-Issuer or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary;




and the order or decree remains unstayed and in effect for 60 consecutive days.



SECTION 6.02. Acceleration.




          In the case of an Event of Default specified in clause (10) or (11) of Section 6.01, with
respect to a Co-Issuer, all outstanding Notes shall become due and payable immediately without
further action or notice. If any other Event of Default occurs and is continuing, the Trustee, by
written notice to the Co-Issuers, or the Holders of at least 25% in principal amount of the then
outstanding Notes, by written notice to the Trustee and the Co-Issuers, may declare all the Notes
to be due and payable. Any such notice from the Trustee or Holders shall specify the applicable
Event(s) of Default and state that such notice is a “Notice of Acceleration.” Upon such
declaration of acceleration pursuant to a Notice of Acceleration, the aggregate principal of and
accrued and unpaid interest and Additional Interest, if any, on the outstanding Notes shall become
due and payable without further action or notice.




          No such rescission shall affect any subsequent Default or impair any right consequent thereto.




SECTION 6.03. Other Remedies.




          If a Default occurs and is continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal of, or interest or Additional
Interest, if any, on, the Notes or to enforce the performance of any provision of the Notes or this
Indenture and the Trustee may direct the Collateral Trustee to enforce the performance of any
provision of the Security Documents if any amount becomes due and payable pursuant to Section 6.02
(but not otherwise).




          The Trustee and the Collateral Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. All rights of action and
claims under the Security Documents may be prosecuted or enforced under the Security Documents by
the Collateral Trustee (upon the direction of the Trustee, where appropriate). A delay or omission
by the Trustee,






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the Collateral Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.




          Each Holder, by accepting a Note, acknowledges that the exercise of remedies by the Collateral
Trustee with respect to the Collateral is subject to the terms and conditions of the Security
Documents.




SECTION 6.04. Waiver of Past Defaults.




          Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in principal amount of the
outstanding Notes (which may include consents obtained in connection with a tender offer or
exchange offer of Notes) by notice to the Trustee may waive an existing Default or Event of Default
and its consequences, except a continuing Default or Event of Default in the payment of principal
of, or interest or premium on, any Note as specified in Section 6.01(1) or (2). In case of any
such waiver, the Co-Issuers, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Notes, respectively. This Section 6.04 shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Indenture and the Notes, as permitted by the
Trust Indenture Act. Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereto.




SECTION 6.05. Control by Majority.




          The Holders of not less than a majority in principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee. Subject to Section 7.01,
however, the Trustee may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines in good faith may be unduly prejudicial to the rights of
another Holder, or that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent with such
direction.




          In the event the Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification against any loss or expense caused by taking such
action or following such direction.




SECTION 6.06. Limitation on Suits.




          No Holder shall have any right to institute any proceeding with respect to this Indenture or
the Notes or for any remedy hereunder or thereunder, unless:





     (1) an Event of Default has occurred and is continuing and such Holder has previously
given the Trustee written notice that an Event of Default is continuing;




     (2) Holders of at least 25% in aggregate principal amount of the outstanding Notes have
requested in writing the Trustee to pursue the remedy;




     (3) such Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense in complying with such request;



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     (4) the Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and




     (5) Holders of a majority in aggregate principal amount of the outstanding Notes have
not given the Trustee a written direction inconsistent with such request within such 60-day
period.


However, such limitations shall not apply to a suit instituted by a Holder of any Note for
enforcement of payment of the principal of or interest or premium on, or Additional Interest (if
any) with respect to, such Note on or after the due date therefor.




          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder (it being understood that the Trustee does not have
an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holders).




SECTION 6.07. Rights of Holders To Receive Payment.




          Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of, and interest and Additional Interest, if any, on, a Note, on or after the
respective due dates therefor, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of the Holder except
to the extent that the institution or prosecution of such suit or the entry of judgment therein
would, under applicable law, result in the surrender, impairment or waiver of the Lien of this
Indenture and the Security Documents upon the Collateral.




SECTION 6.08. Collection Suit by Trustee.




          If an Event of Default in payment of principal, interest or premium specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Co-Issuers or any other obligor on the Notes for the
whole amount of principal, premium and accrued interest and Additional Interest (if any) and fees
remaining unpaid, together with interest and Additional Interest, if any, on overdue principal and,
to the extent that payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Notes and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.




SECTION 6.09. Trustee May File Proofs of Claim.



          The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Co-Issuers, their creditors or their
property and shall be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any Custodian in any such
judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and






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any other amounts due to the Trustee under Section 7.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceedings whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding. The Trustee shall be entitled to participate as a member of any official
committee of creditors in the matters as it deems necessary or advisable.




SECTION 6.10. Priorities.




          If the Trustee or the Collateral Trustee collects any money pursuant to this Article Six, any
other provision of this Indenture, pursuant to any of the Security Documents or as Trust Monies
hereunder, it shall pay out the money or property in the following order:





     First: to the Trustee and the Collateral Trustee for amounts due under Section 7.07;




     Second: to Holders for interest accrued on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes for interest or
Additional Interest;




     Third: to Holders for principal amounts due and unpaid on the Notes and Additional
Amounts, if any, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and premium;




     Fourth: without duplication, to the Holders, for any other obligations due to them
hereunder or under the Notes, pro rata based on the amounts of such obligations; and




     Fifth: to the Co-Issuers or, if applicable, the Guarantors, as their respective
interests may appear.



          The Trustee, upon prior written notice to the Co-Issuers, may fix a record date and payment
date for any payment to Holders pursuant to this Section 6.10.




SECTION 6.11. Undertaking for Costs.




          In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee or the Collateral Trustee for any action taken or omitted by it as Trustee or
as Collateral Trustee, a court in its discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 shall not apply to a suit by the Trustee or the Collateral
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.







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ARTICLE SEVEN




TRUSTEE



SECTION 7.01. Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.




          (b) Except during the continuance of an Event of Default:





     (1) the Trustee need perform only those duties as are specifically set forth herein or
in the Trust Indenture Act and no duties, covenants, responsibilities or obligations shall
be implied in this Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee and the Collateral Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates (including Officers’ Certificates) or opinions
(including Opinions of Counsel) furnished to the Trustee or the Collateral Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee or the Collateral Trustee, the Trustee or the Collateral Trustee,
as applicable, shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).



          (c) Notwithstanding anything to the contrary herein, the Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:





     (1) this paragraph does not limit the effect of Section 7.01(b);




     (2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or to
take or omit to take any action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment of such funds is not
assured to it.




          (e) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to this Section 7.01.




          (f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Co-Issuers. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.







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          (g) In the absence of bad faith, negligence or willful misconduct on the part of the Trustee
or the Collateral Trustee, the Trustee and the Collateral Trustee, as applicable, shall not be
responsible for the application of any money by any Paying Agent other than the Trustee or the
Collateral Trustee.




          (h) Subject to Section 9.02 hereof, the Trustee may (but shall not be obligated to), without
the consent of the Holders, give any consent, waiver or approval required under any of the Security
Documents or by the terms hereof with respect to the Collateral, but shall not without the consent
of the Holders of a majority in aggregate principal amount of the Notes at the time outstanding (i)
give any consent, waiver or approval or (ii) agree to any amendment or modification of any of the
Security Documents, in each case which will have an adverse effect on the interests of any Holder.
The Trustee shall be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any consent, waiver, approval, amendment or modification will have an adverse
effect on the interests of any Holder.




SECTION 7.02. Rights of Trustee.




          Subject to Section 7.01:





     (a) The Trustee may conclusively rely, and shall be protected in acting or refraining
from acting, upon any Board Resolution, certificate (including any Officers’ Certificate),
statement, instrument, opinion (including any Opinion of Counsel), notice, request,
direction, consent, order, bond, debenture, or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate and/or an Opinion of Counsel, which shall conform to the provisions of Section
13.05 (provided that no Officers’ Certificate or Opinion of Counsel shall be required in
connection with the initial issuance of Notes on the Issue Date). The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.




     (c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent (other than an agent who is an employee of the
Trustee) appointed with due care.




     (d) The Trustee shall not be liable for any action it takes or omits to take in good
faith which it reasonably believes to be authorized or within its rights or powers under
this Indenture; provided, however, that the Trustee’s conduct does not constitute willful
misconduct, bad faith or negligence.




     (e) The Trustee may consult with counsel of its selection and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.




     (f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture whether on its own motion or at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to
it against the costs, expenses and liabilities which may be incurred therein or thereby.



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     (g) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any Board Resolution, certificate (including any Officers’ Certificate),
statement, instrument, opinion (including any Opinion of Counsel), notice, request,
direction, consent, order, bond, debenture, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts or matters as
it may see fit and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, upon reasonable notice to the Co-Issuers, to examine
the books, records, and premises of the Co-Issuers, personally or by agent or attorney at
the sole cost of the Co-Issuers.




     (h) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.




     (i) The permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as duties.




     (j) Except with respect to Section 4.01 and 4.06, the Trustee shall have no duty to
inquire as to the performance of the Co-Issuers with respect to the covenants contained in
Article Four. In addition, the Trustee shall not be deemed to have knowledge of a Default
or Event of Default except (i) any Default or Event of Default occurring pursuant to Section
4.01, 6.01(1) or 6.01(2) or (ii) any Default or Event of Default of which the Trustee shall
have received written notification.




     (k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee as Trustee, Registrar and Paying Agent, and to each agent,
custodian and other Person employed to act hereunder.




     (l) In no event shall the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.




     (m) The Trustee and the Collateral Trustee may request that the Co-Issuers deliver a
certificate in the form of Exhibit H setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this
Indenture.



SECTION 7.03. Individual Rights of Trustee and Collateral Trustee.




          The Trustee and the Collateral Trustee, each in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Co-Issuers, their Subsidiaries
or its respective Affiliates with the same rights it would have if it were not Trustee or
Collateral Trustee. However, in the event that the Trustee or the Collateral Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Trustee or Collateral Trustee (if this Indenture has been qualified under
the Trust Indenture Act) or resign. Any Agent may do the same with like rights. However, the
Trustee and the Collateral Trustee must comply with Sections 7.10 and 7.11.




SECTION 7.04. Disclaimer of Trustee and Collateral Trustee.




          The Trustee and the Collateral Trustee shall not be responsible for and make no representation
as to the validity or adequacy of this Indenture, the Notes, the Guarantees or the Security






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Documents or the Collateral covered thereby, and they shall not be accountable for the Co-Issuers’
use of the proceeds from the Notes, and they shall not be responsible for any statement of the
Co-Issuers in this Indenture, the Guarantees, the Security Documents or any document issued in
connection with the sale of Notes or any statement in the Notes other than the Trustee’s
certificate of authentication. Each of the Trustee and the Collateral Trustee makes no
representations with respect to the effectiveness or adequacy of this Indenture.




SECTION 7.05. Notice of Default.




          If a Default or Event of Default occurs and is continuing and the Trustee receives actual
notice of such Default or Event of Default, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 90 days after such Default or Event of Default occurs.
Except in the case of a Default in payment of principal of, or interest, Additional Interest or
premium on, any Note, including an accelerated payment and the failure to make a payment on the
Change of Control Payment Date pursuant to a Change of Control Offer, the Asset Sale Payment Date
pursuant to an Asset Sale Offer, the Collateral Sale Payment Date pursuant to a Collateral Sale
Offer or on the Event of Loss Payment Date pursuant to an Event of Loss Offer, the Trustee may
withhold the notice if and so long as a trust committee of Responsible Officers of the Trustee in
good faith determines that withholding the notice is in the interest of the Holders.




SECTION 7.06. Reports by Trustee to Holders.




          Within 60 days after each July 1, beginning with July 1, 2011, the Trustee shall, to the
extent that any of the events described in Trust Indenture Act § 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Holder a brief report dated as of such date
that complies with Trust Indenture Act § 313(a). The Trustee also shall comply with Trust
Indenture Act §§ 313(b), 313(c) and 313(d).




          A copy of each report at the time of its mailing to Holders shall be mailed by the Trustee to
the Co-Issuers and filed by the Trustee with the SEC and each securities exchange, if any, on which
the Notes are listed.




          The Co-Issuers shall notify the Trustee if the Notes become listed on any securities exchange
or of any delisting thereof and the Trustee shall comply with Trust Indenture Act § 313(d).




SECTION 7.07. Compensation and Indemnity.




          The Co-Issuers shall pay to the Trustee from time to time such reasonable compensation as the
Co-Issuers and the Trustee shall from time to time agree in writing for its services rendered by it
hereunder and under the Security Documents. The Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Co-Issuers shall reimburse the Trustee
promptly upon request for all reasonable disbursements, expenses and advances (including reasonable
fees and expenses of counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be attributable to the
Trustee’s negligence, bad faith or willful misconduct. Such expenses shall include the reasonable
fees and expenses of the Trustee’s agents and counsel.




          The Co-Issuers shall indemnify the Trustee or any predecessor Trustee and its officers,
directors, employees and agents for, and hold them harmless against, any and all loss, damage,
claims, liability or reasonable expenses, including taxes (other than taxes based upon, measured by
or determined by the income of such Person), liability or expense incurred by them except for such
actions to the extent






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caused by any negligence or willful misconduct on their part, arising out of or in connection
with the acceptance or administration of this trust or the Security Documents including the
reasonable costs and expenses of defending themselves against or investigating any claim or
liability in connection with the exercise or performance of any of the Trustee’s rights, powers or
duties hereunder. The Trustee shall notify the Co-Issuers promptly of any claim asserted against
the Trustee or any of its agents for which it may seek indemnity. The Co-Issuers shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee and its agents subject to the
claim may have separate counsel and the Co-Issuers shall pay the reasonable fees and expenses of
such counsel; provided, however, that the Co-Issuers shall not be required to pay such fees and
expenses if there is no conflict of interest between the Co-Issuers and the Trustee and its agents
subject to the claim in connection with such defense as reasonably determined by the Trustee. The
Co-Issuers need not pay for any settlement made without its written consent, which consent shall
not be unreasonably withheld. The Co-Issuers need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through the Trustee’s negligence,
willful misconduct or breach of its duties under this Indenture or the Security Documents, which
breach constitutes negligence.




          To secure the Co-Issuers’ payment obligations in this Section 7.07, the Trustee shall have a
Lien prior to the Notes against all money or property held or collected by the Trustee, in its
capacity as Trustee, except money or property held in trust to pay principal and interest
(including Additional Interest, if any) on particular Notes.




          When the Trustee incurs expenses or renders services after a Default specified in Section
6.01(10) or (11) occurs, such expenses and the compensation for such services shall be paid to the
extent allowed under any Bankruptcy Law.




          Notwithstanding any other provision in this Indenture, the foregoing provisions of this
Section 7.07 shall survive the satisfaction and discharge of this Indenture or the appointment of a
successor Trustee.




SECTION 7.08. Replacement of Trustee.




          The Trustee may resign at any time upon 30 days’ written notice to the Co-Issuers in writing.
The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee upon
30 days written notice to the Co-Issuers and the Trustee and may appoint a successor Trustee (which
Trustee shall be reasonably acceptable to the Co-Issuers). The Co-Issuers may remove the Trustee
if:





     (1) the Trustee fails to comply with Section 7.10;




     (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;




     (3) a receiver or other public officer takes charge of the Trustee or its property; or




     (4) the Trustee becomes incapable of acting as Trustee hereunder.



          If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for
any reason, the Co-Issuers shall notify each Holder of such event and shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Co-Issuers.







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          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Co-Issuers. Immediately after that, the retiring Trustee shall transfer, after
payment of all sums then owing to the Trustee pursuant to Section 7.07, all property held by it as
Trustee hereunder and under the Security Documents to the successor Trustee, subject to the Lien
provided in Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to each Holder.




          Any resignation or removal of the Trustee pursuant to this Indenture shall be deemed to be a
resignation or removal of the Trustee under the Security Documents and any appointment of a
successor Trustee pursuant to this Indenture shall be deemed to be an appointment of such person as
a successor to the Trustee under the Security Documents and such successor shall assume all of the
obligations of the Trustee under the Security Documents.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Co-Issuers or the Holders of at least 10% in principal
amount of the outstanding Notes may petition, at the expense of the Co-Issuers, any court of
competent jurisdiction for the appointment of a successor Trustee at the expense of the Co-Issuers.




          If the Trustee fails to comply with Section 7.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Co-Issuers’
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.




SECTION 7.09. Successor Trustee by Merger, Etc.




          If the Trustee consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another Person, the successor Person, without any further
act, shall, if such resulting, surviving or transferee Person is otherwise eligible hereunder, be
the successor Trustee; provided that such Person shall be otherwise qualified and eligible under
this Article Seven.




SECTION 7.10. Eligibility; Disqualification.




          This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture
Act §§ 310(a)(1), 310(a)(2), 310(a)(3) and 310(a)(5). Each of the Trustee and Collateral Trustee
shall have a combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with Trust Indenture Act
§ 310(b); provided, however, that there shall be excluded from the operation of Trust Indenture Act
§ 310(b)(1) any indenture or indentures under which other securities, or certificates of interest
or participation in other securities, of the Co-Issuers are outstanding, if the requirements for
such exclusion set forth in Trust Indenture Act § 310(b)(1) are met. The provisions of Trust
Indenture Act § 310 shall apply to the Co-Issuers and any other obligor of the Notes.




SECTION 7.11. Preferential Collection of Claims Against the Co-Issuers.




          The Trustee, in its capacity as Trustee hereunder, shall comply with Trust Indenture Act
§ 311(a), excluding any creditor relationship listed in Trust Indenture Act § 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act § 311(a) to the extent
indicated. The Trustee hereby waives any right to set-off any claim that it may have against the
Co-Issuers in any






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capacity (other than as Trustee and Paying Agent) against any of the assets of the Co-Issuers
held by the Trustee.




ARTICLE EIGHT




SATISFACTION OR DISCHARGE OF INDENTURE; DEFEASANCE



SECTION 8.01. Termination of the Co-Issuers’ Obligations.




          The Co-Issuers may terminate their obligations under the Notes and this Indenture and the
obligations of the Guarantors under the Note Guarantees and this Indenture and this Indenture shall
be discharged and shall cease to be of further effect as to all Notes issued hereunder and then
outstanding, except those obligations referred to in the penultimate paragraph of this Section
8.01, when:





     (1) either:




     (a) all Notes that have been authenticated, except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for whose payment money has been
deposited in trust or segregated and held in trust by the Co-Issuers and thereafter
repaid to the Co-Issuers or discharged from the trust, have been delivered to the
Trustee for cancellation; or




     (b) all Notes that have not been delivered to the Trustee for cancellation have
become due and payable by reason of the mailing of a notice of redemption or
otherwise or will become due and payable within one year or have been called for
redemption pursuant to Section 5, Section 6 or Section 7 of the Notes and the
Co-Issuers have irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash or Cash Equivalents
in U.S. dollars, non-callable Government Securities, or a combination thereof, in
amounts as shall be sufficient, without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on the Notes not delivered to
the Trustee for cancellation for principal, premium and Additional Interest, if any,
and accrued interest to the date of maturity or redemption;




     (2) no Default or Event of Default has occurred and is continuing on the date of the
deposit (other than a Default or Event of Default resulting from the borrowing of funds to
be applied to such deposit) and the deposit shall not result in a breach or violation of, or
constitute a default under, any other instrument to which any Co-Issuer or any of its
Restricted Subsidiaries is a party or by which any Co-Issuer or any of its Restricted
Subsidiaries is bound;




     (3) any Co-Issuer or any Guarantor has paid or caused to be paid all sums payable by
them under this Indenture; and




     (4) any Co-Issuer has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity or on the
Redemption Date, as the case may be.


In addition, the Co-Issuers must deliver an Officers’ Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.




          In the case of clause (1)(b) of this Section 8.01, and subject to the next sentence and
notwithstanding the foregoing paragraph, the Co-Issuers’ obligations in Sections 2.03, 2.05, 2.06,
2.07, 2.08,




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2.12, 4.01, 4.02, 4.03 (as to legal existence of the Co-Issuers only), 7.07, 8.06 and
8.08 shall survive until the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Notes are no longer outstanding, the Co-Issuers’ obligations in Sections
7.07, 8.06 and 8.08 shall survive.




          After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of the Co-Issuers’ obligations under the Notes and this Indenture except for
those surviving obligations specified above.




SECTION 8.02. Option to Effect Legal Defeasance or Covenant Defeasance.




          The Co-Issuers may, at the option of their Boards of Directors evidenced by a Board Resolution
set forth in an Officers’ Certificate, and at any time, elect to have either Section 8.03 or 8.04
applied to all outstanding Notes and all obligations of any Guarantor upon compliance with the
conditions set forth in this Article Eight.




SECTION 8.03. Legal Defeasance.




          Upon the Co-Issuers’ exercise under Section 8.02 of the option applicable to this Section
8.03, the Co-Issuers and each of the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.05, be deemed to have been discharged from their obligations with
respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, “Legal Defeasance”). Such Legal Defeasance means that the
Co-Issuers and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes (including the Note Guarantees), which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.06 and the other Sections of this
Indenture referred to in clauses (1) and (2) below, and to have satisfied all of their other
obligations under such Notes, the Guarantees and this Indenture (and the Trustee, on demand of and
at the expense of the Co-Issuers, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or discharged
hereunder:





     (1) the rights of Holders of outstanding Notes to receive payments in respect of the
principal of or interest or premium and Additional Interest, if any, on such Notes when such
payments are due from the trust referred to in Section 8.06;




     (2) the Co-Issuers’ obligations with respect to the Notes under Article Two and Section
4.02;




     (3) the rights, powers, trusts, duties, exemptions from liability, immunities and
indemnities of the Trustee hereunder, and the Co-Issuers’ and the Guarantors’ obligations in
connection therewith; and




     (4) this Article Eight.


Subject to compliance with this Article Eight, the Co-Issuers may exercise their option under this
Section 8.03 notwithstanding the prior exercise of their option under Section 8.04.




SECTION 8.04. Covenant Defeasance.




          Upon the Co-Issuers’ exercise under Section 8.02 of the option applicable to this Section
8.04, (i) the Co-Issuers and each of the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.05, be released from each of their obligations under the
covenants contained in Sections




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4.03 (other than with respect to the legal existence of the
Co-Issuers), 4.04, 4.07, 4.09 through 4.18 (except for obligations under Section 4.17 mandated by
the Trust Indenture Act), 4.21 and 5.01 (except for the covenants contained in clauses (a)(1) and
(a)(2) thereof) with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.05 are satisfied (hereinafter, “Covenant Defeasance”), (ii) the Co-Issuers and
the Guarantors may cause the release of the Note Guarantees and of any Liens securing the Notes or
the Guarantees, and (iii) the Notes shall thereafter be deemed not “outstanding” for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all
other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Guarantees, the Co-Issuers and the Guarantors may omit to comply with and
shall have no liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any
other document and such omission to comply, and any release of the Note Guarantees or of Liens
securing the Notes or the Note Guarantees, shall not constitute a Default or an Event of Default
under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes
and Guarantees shall be unaffected thereby. In addition, upon the Co-Issuers’ exercise under
Section 8.02 of the option applicable to this Section 8.04, subject to the satisfaction of the
conditions set forth in Section 8.04, Sections 6.01(3) through 6.01(9) shall not constitute Events
of Default.




SECTION 8.05. Conditions to Legal or Covenant Defeasance.




          In order to exercise either Legal Defeasance or Covenant Defeasance under either Sections 8.03
or 8.04:





     (1) the Co-Issuers must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in amounts as shall be sufficient, without consideration of any reinvestment of
interest, in the opinion of a nationally recognized investment bank, appraisal firm or firm
of independent public accountants, to pay the principal of or interest and premium and
Additional Interest, if any, on the outstanding Notes on the Stated Maturity or on the
applicable Redemption Date, as the case may be, and the Co-Issuers must specify whether the
Notes are being defeased to maturity or to a particular Redemption Date;




     (2) in the case of an election under Section 8.03, the Co-Issuers must deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the
Co-Issuers have received from, or there has been published by, the U.S. Internal Revenue
Service a ruling or (b) since the Issue Date, there has been a change in the applicable U.S.
federal income tax law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal Defeasance and shall
be subject to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not occurred;




     (3) in the case of an election under Section 8.04, the Co-Issuers must deliver to the
Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes shall not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and shall be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;



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     (4) no Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from, or otherwise arising in
connection with, the borrowing of funds to be applied to such deposit and the grant of any
Lien securing such borrowing);




     (5) such Legal Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which any Co-Issuer or any of its Subsidiaries is a party or by
which any Co-Issuer or any of its Subsidiaries is bound;




     (6) the Co-Issuers must deliver to the Trustee an Officers’ Certificate stating that
the deposit was not made by the Co-Issuers with the intent of preferring the Holders over
the other creditors of the Co-Issuers or any of their Subsidiaries or with the intent of
defeating, hindering, delaying or defrauding creditors of the Co-Issuers or any of their
Subsidiaries or others; and




     (7) the Co-Issuers must deliver to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each to the effect that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.



          Notwithstanding the foregoing, the opinion of counsel required by clause (2) above with
respect to an election under Section 8.03 need not be delivered if all Notes not theretofore
delivered to the Trustee for cancellation shall become due and payable within one year under
arrangements reasonably satisfactory to the Trustee for the giving of a notice of redemption by the
Trustee in the name and at the expense of the Co-Issuers.




          If the funds deposited with the trustee to effect Covenant Defeasance are insufficient to pay
the principal of and interest on the Notes when due, then the obligations of the Co-Issuers and the
Guarantors under this Indenture will be revived and no such defeasance will be deemed to have
occurred.




SECTION 8.06. Deposited Money and Government Securities To Be Held in Trust;
Other Miscellaneous Provisions.




          Subject to Section 8.07, all cash, Cash Equivalents and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying Trustee,
collectively for purposes of this Section 8.06, the “Trustee”) pursuant to Article Eight in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and Additional Interest, if any, and interest, but such
money need not be segregated from other funds except to the extent required by law.




          The Co-Issuers shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to
Section 8.05 or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the outstanding Notes.




          Notwithstanding anything in this Article Eight to the contrary, the Trustee shall deliver or
pay to the Co-Issuers from time to time upon the request of the Co-Issuers any money or
non-callable Government Securities held by it as provided in Section 8.04 which, in the opinion of
a firm of independent public accountants or any investment bank or appraisal firm, in each case
nationally recognized in the United States expressed in a written certification thereof delivered
to the Trustee (which may be the




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opinion delivered under Section 8.05(1)), are in excess of the
amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.




SECTION 8.07. Repayment to the Co-Issuers.




          Any money deposited with the Trustee or any Paying Agent, in trust for the payment of the
principal of, premium or Additional Interest, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium or Additional Interest, if any, or interest
has become due and payable shall promptly be paid to the Co-Issuers on their written request or
shall be discharged from such trust; and the Holder of such Note shall thereafter be permitted to
look only to the Co-Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Co-Issuers as trustee thereof,
shall thereupon cease.




SECTION 8.08. Reinstatement.




          If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable
Government Securities in accordance with this Article Eight, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Co-Issuers’ and the Guarantors’ obligations under this
Indenture, the Notes, the Guarantees and the Security Documents shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Eight until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with this Article Eight, as the
case may be; provided, however, that (a) if the Co-Issuers makes any payment of principal of,
premium or Additional Interest, if any, or interest on any Note following the reinstatement of its
obligations, the Co-Issuers shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent and (b) so long as no
payment Default or Event of Default has occurred and is continuing, unless otherwise required by
any legal proceeding or any other order or judgment of any court or governmental authority, the
Trustee or Paying Agent shall return all such money and U.S. Obligations (in each case to the
extent remaining in their possession) to the Co-Issuers promptly after receiving a written request
therefore at any time, if such reinstatement of the Co-Issuers’ obligations has occurred and
continues to be in effect other than such money as has been applied to payment on the Notes.




          The Co-Issuers shall be entitled to cure any event resulting in the reinstatement of its
obligations hereunder.




ARTICLE NINE




AMENDMENTS, SUPPLEMENTS AND WAIVERS



SECTION 9.01. Without Consent of Holders.




          The Co-Issuers, the Guarantors, the Trustee and the Collateral Trustee, as applicable, may
amend, waive, supplement or otherwise modify this Indenture, the Notes, the Note Guarantees, any
Security Document or any other agreement or instrument entered into in connection with this
Indenture without notice to or consent of any Holder:





     (1) to cure any ambiguity, defect or inconsistency;




     (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;



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     (3) to provide for the assumption of a Co-Issuer’s or a Guarantor’s obligations to
Holders and Guarantees in the case of a merger, amalgamation or consolidation or sale of all
or substantially all of such Co-Issuer’s or such Guarantor’s assets, as applicable;




     (4) to make any change that would provide any additional rights or benefits to the
Holders or that does not materially adversely affect the legal rights under this Indenture
of any such Holder;




     (5) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;




     (6) to allow any Guarantor to execute a supplemental indenture and a Guarantee with
respect to the Notes or to release a Guarantee or a security interest under the Notes or a
Guarantee in accordance with the terms of this Indenture;




     (7) to provide for the issuance of Additional Notes in accordance with the terms of
this Indenture;




     (8) to evidence and provide for the acceptance of appointment under this Indenture by a
successor Trustee or Collateral Trustee;




     (9) to comply with the rules of any applicable securities depository;




     (10) to conform the text of this Indenture, the Note Guarantees or the Notes to any
provision of the “Description of Notes” in the Offering Memorandum to the extent that such
provision in the “Description of Notes” was intended by the Co-Issuers (as demonstrated by
an Officers’ Certificate) to be a substantially verbatim recitation of a provision of this
Indenture, the Note Guarantees or the Notes;




     (11) to add to the covenants of the Company or any Restricted Subsidiary for the
benefit of the Holders or surrender any rights or powers conferred upon the Company or any
Restricted Subsidiary;




     (12) to mortgage, pledge or grant a security interest in favor of the Trustee or the
Collateral Trustee as additional security for the payment and performance of the obligations
under this Indenture of the Co-Issuers or any Guarantor, in any property or assets,
including any which are required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted, to the Collateral Trustee pursuant to any
Security Document or otherwise;




     (13) to establish or maintain the Ship Mortgages as first priority ship mortgages on
the Mortgaged Vessels, or to correct or amplify the description of any property at any time
subject to the Lien of this Indenture or the Ship Mortgages, or to subject additional
property to the Lien of this Indenture or the Ship Mortgages; or




     (14) to transfer or change the flag of any Mortgaged Vessel to a Permitted Flag
Jurisdiction.



          Upon the request of the Co-Issuers accompanied by a Board Resolution of each of their
respective Boards of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee or the Collateral Trustee, as applicable, of any
documents requested under Section 7.02(b), the Trustee or the Collateral Trustee, as applicable,
shall join with the Co-Issuers and any




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Guarantors in the execution of any amended or supplemental
Indenture authorized or permitted by the terms of this Indenture and make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee or the Collateral
Trustee, as applicable, shall not be obligated to enter into such amended or supplemental Indenture
that affects its own rights, duties or immunities under this Indenture or otherwise.




SECTION 9.02. With Consent of Holders.




          (a) Subject to Sections 6.07 and 9.03, the Co-Issuers, the Guarantors, the Trustee and the
Collateral Trustee, together, with the written consent of the Holder or Holders of at least a
majority in aggregate principal amount of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), may amend or supplement this Indenture, the Notes, the Note Guarantees or any Security
Document, and any existing Default or Event of Default or compliance with any provision of this
Indenture, the Notes, the Note Guarantees or the Security Documents may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes).




          (b) Notwithstanding Section 9.02(a), without the consent of the Co-Issuers and each Holder
affected, an amendment, supplement or waiver may not (with respect to any Notes held by a
non-consenting Holder):





     (1) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;




     (2) reduce the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption of the Notes (it being understood that this clause
(2) does not apply to Sections 4.09, 4.13 and 4.21);




     (3) reduce the rate of or change the time for payment of interest or Additional
Interest on any Note;




     (4) waive a Default or Event of Default in the payment of principal of, or interest or
premium, or Additional Interest, if any, on the Notes (except a rescission of acceleration
of the Notes by the holders of at least a majority in aggregate principal amount of the then
outstanding Notes in accordance with the provisions of this Indenture and a waiver of the
payment default that resulted from such acceleration);




     (5) make any Note payable in money other than that stated in the Notes;




     (6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of, or interest or
premium or Additional Interest, if any, on the Notes, or Additional Amounts, if any;




     (7) waive a redemption payment with respect to any Note (it being understood that this
clause (7) does not apply to a payment required by Section 4.09, 4.13 or 4.21);




     (8) release any Guarantor from any of its obligations under its Guarantee or this
Indenture, except in accordance with the terms of this Indenture;



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     (9) in the event that the obligation to make a Change of Control Offer or an Asset Sale
Offer has arisen, amend, change or modify in any material respect the obligation of the
Company to make and consummate such Change of Control Offer or such Asset Sale Offer, as the
case may be;




     (10) expressly subordinate in right of payment the Notes or the Note Guarantees to any
other Indebtedness of the Co-Issuers or any Guarantor; or




     (11) make any change to this Section 9.02.



          (c) Notwithstanding Section 9.02(a), without the consent of Holders of 66 2/3% of the
outstanding Notes affected, an amendment, supplement or waiver may not:





     (1) amend, change or modify in any material respect the obligation of the Co-Issuers to
make and consummate a Collateral Sale Offer or an Event of Loss Offer, as the case may be,
or modify the provisions or definitions with respect thereto; or




     (2) release the Lien of the Collateral Trustee on behalf of the Trustee for the benefit
of the Holders in any Collateral (other than by operation of the terms of this Indenture and
the Security Documents).



          (d) It shall not be necessary for the consent of the Holders under this Section to approve the
particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such
consent approves the substance thereof.




          (e) A consent to any amendment, supplement or waiver under this Indenture by any Holder given
in connection with an exchange (in the case of an exchange offer) or a tender (in the case of a
tender offer) of such Holder’s Notes shall not be rendered invalid by such tender or exchange.




          (f) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Co-Issuers shall mail to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Co-Issuers to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such amendment, supplement or
waiver.




SECTION 9.03. Compliance with the Trust Indenture Act.




          From the date on which this Indenture is qualified under the Trust Indenture Act, every
amendment, waiver or supplement of this Indenture, the Notes or the Note Guarantees shall be set
forth in a document that complies with the Trust Indenture Act as then in effect.




SECTION 9.04. Revocation and Effect of Consents.




          Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not
made on
any Note. However, any such Holder or subsequent Holder may revoke the consent as to his Note
or portion of his Note by notice to the Trustee or the Co-Issuers received before the date on which
the Trustee receives an Officers’ Certificate certifying that the Holders of the requisite
principal amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.





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          The Co-Issuers may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver, which record
date shall be prior to the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more than 90 days after
such record date. The Co-Issuers shall inform the Trustee in writing of the fixed record date if
applicable.




          After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (1) through (11) of Section 9.02(b), in which case,
the amendment, supplement or waiver shall bind only each Holder who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Note; provided that the Co-Issuers and the Trustee are able to identify the particular
Note which has so consented; provided, further, that any such waiver shall not impair or affect the
right of any Holder to receive payment of principal of, and interest, Additional Interest (if any)
and premium on, a Note, on or after the respective due dates therefor, or to bring suit for the
enforcement of any such payment on or after such respective dates without the consent of such
Holder.




SECTION 9.05. Notation on or Exchange of Notes.




          If an amendment, supplement or waiver changes the terms of a Note, the Co-Issuers may require
the Holder to deliver it to the Trustee. The Co-Issuers shall provide the Trustee with an
appropriate notation on the Note about the changed terms and cause the Trustee to return it to the
Holder at the Co-Issuers’ expense. Alternatively, if the Co-Issuers or the Trustee so determine,
the Co-Issuers in exchange for the Note shall issue, and the Trustee shall authenticate, a new Note
that reflects the changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or waiver.




SECTION 9.06. Trustee and Collateral Trustee To Sign Amendments, Etc.




          The Trustee or the Collateral Trustee, as the case may be, shall execute any amendment,
supplement or waiver authorized pursuant to this Article Nine; provided that the Trustee or the
Collateral Trustee, as the case may be, may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee’s or the Collateral Trustee’s own rights,
duties or immunities under this Indenture. The Trustee and the Collateral Trustee shall each be
entitled to receive, and, subject to Section 7.01, shall be fully protected in conclusively relying
upon, an Opinion of Counsel and an Officers’ Certificate, each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or permitted
by this Indenture. Such Opinion of Counsel shall be at the expense of the Co-Issuers.




          Upon the execution of any amended or supplemental indenture pursuant to and in accordance with
this Article Nine, this Indenture shall be modified in accordance therewith, and such amended or
supplemental Indenture shall form a part of this Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.







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ARTICLE TEN




NOTE GUARANTEE



SECTION 10.01. Unconditional Guarantee.




          Subject to the provisions of this Article Ten, each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes, the Security Documents or the obligations
of the Co-Issuers to the Holders or the Trustee hereunder or thereunder: (a) (x) the due and
punctual payment of the principal of, premium, if any, and interest and Additional Interest, if
any, on the Notes when and as the same shall become due and payable, whether at maturity, upon
redemption or repurchase, by acceleration or otherwise, (y) the due and punctual payment of
interest on the overdue principal and (to the extent permitted by law) interest and Additional
Interest, if any, on the Notes and (z) the due and punctual payment and performance of all other
obligations of the Co-Issuers, in each case, to the Holders or the Trustee hereunder or thereunder
(including amounts due the Trustee under Section 7.07), all in accordance with the terms hereof and
thereof (collectively, the “Guarantee Obligations”); and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, the due and punctual payment and
performance of the Guarantee Obligations in accordance with the terms of the extension or renewal,
whether at maturity, upon redemption or repurchase, by acceleration or otherwise. Failing payment
when due of any amount so guaranteed, or failing performance of any other obligation of the
Co-Issuers to the Holders under this Indenture, under the Notes or under any Security Document, for
whatever reason, each Guarantor shall be obligated to pay, or to perform or cause the performance
of, the same immediately. An Event of Default under this Indenture, the Notes or the Security
Documents shall constitute an Event of Default under the Note Guarantees, and shall entitle the
Holders to accelerate the obligations of the Guarantors thereunder in the same manner and to the
same extent as the obligations of the Co-Issuers.




          Each of the Guarantors hereby agrees that (to the extent permitted by law) its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the
Notes, this Indenture or the Security Documents, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or thereof, any release of
any other Guarantor, the recovery of any judgment against the Co-Issuers, any action to enforce the
same, whether or not a Note Guarantee is affixed to any particular Note, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a Guarantor (other
than payment). To the fullest extent permitted by law and subject to Section 6.06, each of the
Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Co-Issuers, any right to require a
proceeding first against the Co-Issuers, protest, notice and all demands whatsoever and covenants
that its Note Guarantee shall not be discharged except by complete performance of the obligations
contained in the Notes, this Indenture, this Note Guarantee and the Security Documents. This Note
Guarantee is a guarantee of payment and not of collection. If any Holder or the Trustee is
required by any court or otherwise to return to any Co-Issuer or to any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to such Co-Issuer or
such Guarantor, any amount paid by such Co-Issuer or such Guarantor to the Trustee or such Holder,
this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and
effect. Each Guarantor further agrees that, as between it, on the one hand, and the Holders and
the Trustee, on the other hand, (a) subject to this Article Ten, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and





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payable) shall forthwith become due and payable by the Guarantors for the purpose
of this Note Guarantee.



SECTION 10.02. Limitation on Guarantor Liability.




          Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal, foreign, provincial or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Guarantors hereby irrevocably agree (to the extent required by such laws) that the
obligations of such Guarantor under its Note Guarantee and this Article Ten shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including any guarantee under the Credit Agreement) that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor
under this Article Ten, result in the obligations of such Guarantor under its Note Guarantee not
constituting a fraudulent transfer or conveyance. Each Guarantor that makes a payment for
distribution under its Note Guarantee is entitled to a contribution from each other Guarantor in a
pro rata amount based on the adjusted net assets of each Guarantor.



SECTION 10.03. Execution and Delivery of Guarantee.




          To further evidence its Guarantee set forth in Section 10.01, each Guarantor hereby agrees
that a notation of such Guarantee, substantially in the form of Exhibit E hereto (each, a
“Notation of Guarantee”), shall be endorsed on each Note authenticated and delivered by the
Trustee. Such Notation of Guarantee shall be executed on behalf of each Guarantor by either manual
or facsimile signature of one Officer or other person duly authorized by all necessary corporate
action of such Guarantor who shall have been duly authorized to so execute by all requisite
corporate action. The validity and enforceability of any Notation of Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.




          Each of the Guarantors hereby agrees that its Note Guarantee set forth in Section 10.01 shall
remain in full force and effect notwithstanding any failure to endorse on each Note a Notation of
Guarantee.




          If an Officer of a Guarantor whose signature is on this Indenture or a Notation of Guarantee
no longer holds that office at the time the Trustee authenticates the Note on which such Notation
of Guarantee is endorsed or at any time thereafter, such Guarantor’s Notation of Guarantee of such
Note shall nevertheless be valid.




          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of any Note Guarantee set forth in this Indenture on behalf of each
Guarantor.



SECTION 10.04. Release of a Guarantor.




          Notwithstanding Section 4.16(a), a Guarantor shall be automatically and unconditionally
released from its obligations under its Note Guarantee and its obligations under this Indenture and
the Registration Rights Agreement in accordance with Section 4.16(b) or as otherwise expressly
permitted by this Indenture.







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          The Trustee shall execute an appropriate instrument prepared by the Co-Issuers evidencing the
release of a Guarantor from its obligations under its Note Guarantee upon receipt of a request by
the Co-Issuers or such Guarantor accompanied by an Officers’ Certificate and, if requested by the
Trustee, an Opinion of Counsel certifying as to the compliance with this Section 10.04; provided,
however, that the legal counsel delivering such Opinion of Counsel may rely as to matters of fact
on one or more Officers’ Certificates of the Co-Issuers.




          Except as set forth in Articles Four and Five and this Section 10.04, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with
or into a Co-Issuer or another Guarantor or shall prevent any sale or conveyance of the property of
a Guarantor as an entirety or substantially as an entirety to a Co-Issuer or another Guarantor.



SECTION 10.05. Waiver of Subrogation.




          Until this Indenture is discharged and all of the Notes are discharged and paid in full, each
Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it
may now or hereafter acquire against the Co-Issuers that arise from the existence, payment,
performance or enforcement of the Co-Issuers’ obligations under the Notes or this Indenture and
such Guarantor’s obligations under this Note Guarantee and this Indenture, in any such instance
including, without limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, and any right to participate in any claim or remedy of the Holders against the
Co-Issuers, whether or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from the Co-Issuers,
directly or indirectly, in cash or other assets or by set-off or in any other manner, payment or
security on account of such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and any amounts owing to the Trustee or the Holders under the
Notes, this Indenture, or any other document or instrument delivered under or in connection with
such agreements or instruments, shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit
of, the Trustee or the Holders and shall forthwith be paid to the Trustee for the benefit of itself
or such Holders to be credited and applied to the obligations in favor of the Trustee or the
Holders, as the case may be, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it shall receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set forth in this Section
10.05 is knowingly made in contemplation of such benefits.



SECTION 10.06. Immediate Payment.




          Each Guarantor agrees to make immediate payment to the Trustee on behalf of the Holders of all
Guarantee Obligations owing or payable to the respective Holders upon receipt of a demand for
payment therefor by the Trustee to such Guarantor in writing.



SECTION 10.07. No Set-Off.




          Each payment to be made by a Guarantor hereunder in respect of the Guarantee Obligations shall
be payable in the currency or currencies in which such Guarantee Obligations are denominated, and,
to the fullest extent permitted by law, shall be made without set-off, counterclaim, reduction or
diminution of any kind or nature.







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SECTION 10.08. Guarantee Obligations Absolute.




          The obligations of each Guarantor hereunder are and shall be absolute and unconditional and
any monies or amounts expressed to be owing or payable by each Guarantor hereunder which may not be
recoverable from such Guarantor on the basis of a Note Guarantee shall be recoverable from such
Guarantor as a primary obligor and principal debtor in respect thereof.



SECTION 10.09. Note Guarantee Obligations Continuing.




          The obligations of each Guarantor hereunder shall be continuing and shall remain in full force
and effect until all such obligations have been paid and satisfied in full. Each Guarantor agrees
with the Trustee that it shall, upon request by the Trustee, deliver to the Trustee suitable
acknowledgments of this continued liability hereunder and under any other instrument or instruments
relating to this Indenture in such form as counsel to the Trustee may reasonably advise.



SECTION 10.10. Note Guarantee Obligations Not Reduced.




          The obligations of each Guarantor hereunder shall not be satisfied, reduced or discharged
solely by the payment of such principal, premium, if any, interest, fees and other monies or
amounts as may at any time prior to discharge of this Indenture pursuant to Article Eight be or
become owing or payable under or by virtue of or otherwise in connection with the Notes or this
Indenture.



SECTION 10.11. Note Guarantee Obligations Reinstated.




          The obligations of each Guarantor hereunder shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment which would otherwise have reduced the
obligations of any Guarantor hereunder (whether such payment shall have been made by or on behalf
of the Co-Issuers or by or on behalf of a Guarantor) is rescinded or reclaimed from any of the
Holders upon the insolvency, bankruptcy, liquidation or reorganization of the Co-Issuers or any
Guarantor or otherwise, all as though such payment had not been made. If demand for, or
acceleration of the time for, payment by the Co-Issuers or any other Guarantor is stayed upon the
insolvency, bankruptcy, liquidation or reorganization of the Co-Issuers or such Guarantor, all such
Indebtedness otherwise subject to demand for payment or acceleration shall nonetheless be payable
by each Guarantor as provided herein.



SECTION 10.12. Note Guarantee Obligations Not Affected.




          To the fullest extent permitted by law, the obligations of each Guarantor hereunder shall,
subject to Section 10.04, not be affected, impaired or diminished in any way by any act, omission,
matter or thing whatsoever, occurring before, upon or after any demand for payment hereunder (and
whether or not known or consented to by any Guarantor or any of the Holders) which, but for this
provision, might constitute a whole or partial defense to a claim against any Guarantor hereunder
or might operate to release or otherwise exonerate any Guarantor from any of its obligations
hereunder or otherwise affect such obligations, whether occasioned by default of any of the Holders
or otherwise, including, without limitation:





     (a) any limitation of status or power, disability, incapacity or other circumstance
relating to the Co-Issuers or any other Person, including any insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition, dissolution, winding-up or other
proceeding involving or affecting the Co-Issuers or any other Person;



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     (b) any irregularity, defect, unenforceability or invalidity in respect of any
indebtedness or other obligation of the Co-Issuers or any other Person under this Indenture,
the Notes or any other document or instrument;




     (c) any failure of the Co-Issuers or any other Guarantor, whether or not without fault
on its part, to perform or comply with any of the provisions of this Indenture, the Notes or
any Note Guarantee, or to give notice thereof to a Guarantor;




     (d) the taking or enforcing or exercising or the refusal or neglect to take or enforce
or exercise any right or remedy from or against the Co-Issuers or any other Person or their
respective assets or the release or discharge of any such right or remedy;




     (e) the granting of time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to the Co-Issuers or any other Person;




     (f) any change in the time, manner or place of payment of, or in any other term of, any
of the Notes, or any other amendment, variation, supplement, replacement or waiver of, or
any consent to departure from, any of the Notes or this Indenture, including, without
limitation, any increase or decrease in the principal amount of or premium, if any, or
interest or Additional Interest on any of the Notes;




     (g) any change in the ownership, control, name, objects, businesses, assets, capital
structure or constitution of the Co-Issuers or a Guarantor;




     (h) any merger or amalgamation of the Co-Issuers or a Guarantor with any Person or
Persons;




     (i) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court
amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or
otherwise affect, any of the Guarantee Obligations or the obligations of a Guarantor under
its Note Guarantee; and




     (j) any other circumstance, including release of a Guarantor pursuant to Section 10.04
(other than by complete, irrevocable payment) that might otherwise constitute a legal or
equitable discharge or defense of the Co-Issuers under this Indenture or the Notes or of a
Guarantor in respect of its Note Guarantee hereunder.


SECTION 10.13. Waiver.




          Without in any way limiting the provisions of Section 10.01, each Guarantor hereby waives
notice of acceptance hereof, notice of any liability of any Guarantor hereunder, notice or proof of
reliance by the Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Co-Issuers, protest, notice of dishonor or non-payment of
any of the Guarantee Obligations, or other notice or formalities to the Co-Issuers or any Guarantor
of any kind whatsoever.



SECTION 10.14. No Obligation To Take Action Against the Co-Issuers.




          None of the Trustee, the Collateral Trustee or any other Person shall have any obligation to
enforce or exhaust any rights or remedies against the Co-Issuers or any other Person or any
property of the Co-Issuers or any other Person before the Trustee is entitled to demand payment and
performance by






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any or all Guarantors of their liabilities and obligations under their Note Guarantees or
under this Indenture.



SECTION 10.15. Dealing with the Co-Issuers and Others.




          The Holders, without releasing, discharging, limiting or otherwise affecting in whole or in
part the obligations and liabilities of any Guarantor hereunder and without the consent of or
notice to any Guarantor, may





     (a) grant time, renewals, extensions, compromises, concessions, waivers, releases,
discharges and other indulgences to the Co-Issuers or any other Person;




     (b) take or abstain from taking security or collateral from the Co-Issuers or from
perfecting security or collateral of the Co-Issuers;




     (c) release, discharge, compromise, realize, enforce or otherwise deal with or do any
act or thing in respect of (with or without consideration) any and all collateral, mortgages
or other security given by the Co-Issuers or any third party with respect to the obligations
or matters contemplated by this Indenture or the Notes;




     (d) accept compromises or arrangements from the Co-Issuers;




     (e) apply all monies at any time received from the Co-Issuers or from any security upon
such part of the Guarantee Obligations as the Holders may see fit or change any such
application in whole or in part from time to time as the Holders may see fit; and




     (f) otherwise deal with, or waive or modify their right to deal with, the Co-Issuers
and all other Persons and any security as the Holders or the Trustee may see fit.


SECTION 10.16. Default and Enforcement.




          If any Guarantor fails to pay in accordance with Section 10.06 hereof, the Trustee may proceed
in its name as trustee hereunder in the enforcement of the Note Guarantee of any such Guarantor and
such Guarantor’s obligations thereunder and hereunder by any remedy provided by law, whether by
legal proceedings or otherwise, and to recover from such Guarantor the obligations.



SECTION 10.17. Acknowledgment.




          Each Guarantor hereby acknowledges communication of the terms of this Indenture, the Notes and
the Note Guarantees consents to and approves of the same.



SECTION 10.18. Costs and Expenses.




          Each Guarantor shall pay on demand by the Trustee any and all reasonable costs, fees and
expenses (including, without limitation, reasonable legal fees on a solicitor and client basis)
incurred by the Trustee, its agents, advisors and counsel or any of the Holders in enforcing any of
their rights under any Note Guarantee.



SECTION 10.19. No Merger or Waiver; Cumulative Remedies.




          No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders,
any right, remedy, power or privilege hereunder or under this Indenture or the Notes, shall operate
as






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a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Notes preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges in the Note Guarantee and under this Indenture, the Notes and any other
document or instrument between a Guarantor and/or the Co-Issuers and the Trustee are cumulative and
not exclusive of any rights, remedies, powers and privilege provided by law.



SECTION 10.20. Survival of Note Guarantee Obligations.




          Without prejudice to the survival of any of the other obligations of each Guarantor hereunder,
the obligations of each Guarantor under Section 10.01 shall survive the payment in full of the
Guarantee Obligations and shall be enforceable against such Guarantor, to the fullest extent
permitted by law, without regard to and without giving effect to any defense, right of offset or
counterclaim available to or which may be asserted by any Co-Issuer or any Guarantor.



SECTION 10.21. Note Guarantee in Addition to Other Guarantee Obligations.




          The obligations of each Guarantor under its Note Guarantee and this Indenture are in addition
to and not in substitution for any other obligations to the Trustee or to any of the Holders in
relation to this Indenture or the Notes and any guarantees or security at any time held by or for
the benefit of any of them.



SECTION 10.22. Severability.




          Any provision of this Article Ten which is prohibited or unenforceable in any jurisdiction
shall not invalidate the remaining provisions and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and purpose of this
Indenture and this Article Ten.



SECTION 10.23. Successors and Assigns.




          Subject to the provisions herein relating to the release of Note Guarantees, each Note
Guarantee shall be binding upon and inure to the benefit of each Guarantor and the Trustee and the
other Holders and their respective successors and permitted assigns, except that no Guarantor may
assign any of its obligations hereunder or thereunder.




ARTICLE ELEVEN




SECURITY DOCUMENTS


SECTION 11.01. Collateral and Security Documents.




          (a) In order to secure the due and punctual payment of the principal of, premium, if any, and
interest on the Notes and all other amounts payable by the Co-Issuers and the Guarantors under the
Indenture, the Notes and the Guarantees when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Notes, the Guarantees and the
Indenture, each Co-Issuer and each of the Mortgaged Vessel Guarantors have granted security
interests in and Liens on the Collateral owned by it to the Collateral Trustee on behalf of the
Trustee for the benefit of the Holders pursuant to the Indenture and the Security Documents.







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          (b) Each Holder, by accepting a Note, consents and agrees to all of the terms, conditions and
provisions of the Security Documents (including without limitation, provisions providing for
release of Collateral) and this Indenture, as the same may be amended from time to time pursuant to
the provisions of the Security Documents and this Indenture and directs the Collateral Trustee to
sign these documents.




          (c) Each Co-Issuer and each Guarantor shall comply with the requirements of Section 5(k) of
that certain Purchase Agreement dated October 6, 2010 among the Co-Issuers and Banc of America
Securities LLC, as representative of the several Initial Purchasers.



SECTION 11.02. Recording, Etc.




          (a) The Co-Issuers and the Mortgaged Vessel Guarantors shall take or cause to be taken all
action necessary or required to perfect, maintain, preserve and protect the Security Interests in
the Collateral granted by the Security Documents, including, but not limited to, causing all
financing statements (it being understood that (x) as of the Issue Date, no financing statements
are necessary or required to be filed in any state of the United States or the District of Columbia
to perfect the Security Interests in the Collateral (as in existence on the Issue Date) granted by
the Security Documents and (y) certain financing statements in respect of the Security Interests in
the Collateral granted by the Security Documents are being filed on or about the Issue Date in the
District of Columbia solely as precautionary filings), Ship Mortgages, Security Agreements and
other instruments of further assurance, including, without limitation, continuation statements
covering security interests in personal property to be promptly recorded, registered and filed, and
at all times to be kept recorded, registered and filed, and shall execute and file such financing
statements and cause to be issued and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve and protect the rights of the Holders, the
Trustee and the Collateral Trustee under this Indenture and the Security Documents to all property
comprising the Collateral.




          The Co-Issuers and the Mortgaged Vessel Guarantors shall from time to time promptly pay and
discharge all mortgage and financing and continuation statement recording and/or filing fees,
charges and taxes relating to this Indenture and the Security Documents, any amendments thereto and
any other instruments of further assurance.




          (b) The Co-Issuers shall furnish to the Trustee and Collateral Trustee:





     (i) at the time of execution and delivery of this Indenture, Opinion(s) of Counsel to
the effect that, in the opinion of such counsel, this Indenture and the grant of a Security
Interest in the Collateral intended to be made by each Security Document and all other
instruments of further assurance or assignment have been properly recorded and filed to the
extent necessary to perfect the Security Interests created by each such Security Document
and reciting the details of such action; and




     (ii) within 30 days after July 1 in each year, beginning with July 1, 2011, an
Opinion(s) of Counsel, dated as of such date, either (a) to the effect that in the opinion
of such counsel, such action has been taken with respect to the recordings, filings,
re-recordings, and refilings of all financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Security Interests of each
of the Security Documents and reciting with respect to such Security Interests the details
of such action or (b) to the effect that, in the opinion of such counsel, no such action is
necessary to maintain such Security Interests.



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SECTION 11.03. Disposition of Collateral Without Release.




          (a) Notwithstanding the provisions of Section 11.04, so long as no Event of Default shall have
occurred and be continuing, a Co-Issuer or any Mortgaged Vessel Guarantor may, without any release
or consent by the Trustee or the Collateral Trustee:





     (i) sell or otherwise dispose of any machinery, equipment, furniture, tools, materials
or supplies or other similar property subject to the Lien of the Security Documents, which
may have become worn out or obsolete;




     (ii) grant rights-of-way and easements over or in respect of any real property;
provided, however, that such grant will not, in the reasonable opinion of the Board of
Directors of the Co-Issuers or the relevant Mortgaged Vessel Guarantor, as the case may be,
materially impair the usefulness of such property in the conduct of the Co-Issuers’ business
and will not be materially prejudicial to the interests of the Holders;




     (iii) abandon, terminate, cancel, release or make alterations in or substitutions of
any leases, contracts or rights-of-way subject to the Lien of any of the Security Documents
or surrender or modify any franchise, license or permit subject to the Lien of any of the
Security Documents which it may own or under which it may be operating;




     (iv) alter, repair, replace, change the location or position of and add to its plants,
structures, machinery, systems, equipment, fixtures and appurtenances;




     (v) demolish, dismantle, tear down or scrap any Collateral (other than the Mortgaged
Vessels), or abandon any thereof (other than the Mortgaged Vessels), if in the good faith
opinion of the Co-Issuers or the relevant Mortgaged Vessel Guarantor, as the case may be,
such demolition, dismantling, tearing down, scrapping or abandonment is in the interests of
the Co-Issuers or the relevant Mortgaged Vessel Guarantor, as the case may be, and the Fair
Market Value and utility of the Collateral as an entirety will not thereby be impaired in
any material respect; or




     (vi) apply insurance proceeds received under such circumstances other than an Event of
Loss to the repair of the Mortgaged Vessel to which such insurance proceeds related.



          (b) In the event that the Co-Issuers or any Mortgaged Vessel Guarantor has sold, exchanged or
otherwise disposed of or proposes to sell, exchange or otherwise dispose of any portion of the
Collateral which under the provisions of this Section 11.03 may be sold, exchanged or otherwise
disposed of by the Co-Issuers or such Mortgaged Vessel Guarantor without any release or consent of
the Trustee or the Collateral Trustee, and the Co-Issuers or such Mortgaged Vessel Guarantor, as
the case may be, requests the Collateral Trustee to furnish a written disclaimer, release or
quitclaim of any interest in such property under any of the Security Documents, the Collateral
Trustee shall, at the cost and expense of the Co-Issuers and the Mortgaged Vessel Guarantors,
promptly execute such an instrument upon delivery to the Trustee and the Collateral Trustee of (i)
an Officers’ Certificate by the Co-Issuers or such Mortgaged Vessel Guarantor, as the case may be,
reciting the sale, exchange or other disposition made or proposed to be made and describing in
reasonable detail the property affected thereby, and stating that such property is property which
by the provisions of this Section 11.03 may be sold, exchanged or otherwise disposed of or dealt
with by the Co-Issuers or such Mortgaged Vessel Guarantor, as the case may be, without any release
or consent of the Trustee or the Collateral Trustee and (ii) an Opinion of Counsel stating that the
sale, exchange or other disposition made or proposed to be made was duly taken by the Co-Issuers or
such Mortgaged Vessel Guarantor, as the case may be, in conformity with a designated subsection of






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Section 11.03(a) and that the execution of such written disclaimer, release or quitclaim is
appropriate under this Section 11.03.




          Any disposition of Collateral made in strict compliance with the provisions of this Section
11.03 shall be deemed not to impair the Security Interests in contravention of the provisions of
this Indenture.




          Any such disclaimer, release or quitclaim shall be without recourse to, or any representation
or warranty by, the Trustee or the Collateral Trustee.



SECTION 11.04. Release of Collateral.




          (a) The Co-Issuers and each Mortgaged Vessel Guarantor shall have the right to sell, exchange
or otherwise dispose of any of the Collateral owned by it (other than Trust Monies, which are
subject to release from the Lien of this Indenture and the Security Documents as set forth in
Section 12.02) (a “Release Transaction”), upon compliance with the requirements and conditions of
this Section 11.04(a), and the Collateral Trustee shall, upon the direction of the Trustee, release
the same from the Lien of this Indenture or the Security Documents, as the case may be, upon
receipt by the Trustee and the Collateral Trustee of a notice requesting such release (a “Release
Notice”) and describing the property to be so released, together with delivery of the following:





     (i) if the property to be released has a Fair Market Value equal to or greater than
$10.0 million, a resolution of the Board of Directors of the relevant Co-Issuer or the
relevant Mortgaged Vessel Guarantor, as the case may be, requesting such release and
authorizing an application to the Collateral Trustee therefor;




     (ii) an Officers’ Certificate of the relevant Co-Issuer or the relevant Mortgaged
Vessel Guarantor (i.e. the relevant owner or owners of the Collateral in question), as the
case may be, dated not more than five days prior to the date of the application for such
release, in each case stating in substance the following:




     (1) that either: (A) the Collateral to be released is not Net Proceeds from an
Asset Sale and is not being replaced by comparable property, has a book value of
less than $1.0 million, and is not necessary for the efficient operation of the
Co-Issuers’ and the Restricted Subsidiaries’ remaining property or in the conduct of
the business of the Co-Issuers and the Restricted Subsidiaries as conducted
immediately prior thereto; or (B) the Collateral to be released is being released in
connection with an Asset Sale or an Event of Loss involving such Collateral and the
Net Proceeds from such Asset Sale or the Loss Redemption Amount with respect to such
Event of Loss, as the case may be, are being or will be delivered to the Collateral
Trustee to be held as Trust Monies and to be applied in accordance with the terms of
this Indenture including, without limitation, Section 12.02 hereof; or (C) the
Collateral to be released is Trust Monies representing (w) the Net Proceeds from an
Asset Sale involving Collateral which are to be applied to the purchase of one or
more Qualified Vessels (which may include a Qualified Vessel owned by a Subsidiary
(including a Subsidiary Guarantor) that is not a Mortgaged Vessel Guarantor and
Permitted Repairs thereon as provided under Section 4.13(II) or (x) a portion of the
Loss Redemption Amount with respect to an Event of Loss which is to be applied to
the purchase of one or more Qualified Vessels (which may include a Qualified Vessel
owned by a Subsidiary (including a Subsidiary Guarantor) that is not a Mortgaged
Vessel Guarantor) and Permitted Repairs thereon as set forth in Section 4.21 or (y)
the net proceeds from the issuance of Additional Notes which are to be applied to
the purchase of one or



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more Qualified Vessels (which may include a Qualified Vessel owned by a
Subsidiary (including a Subsidiary Guarantor) that is not a Mortgaged Vessel
Guarantor) and Permitted Repairs thereon as permitted by this Indenture or (D) the
Collateral to be released constitutes Trust Monies that are being applied to the
purchase of one or more Qualified Vessels and to make Permitted Repairs thereon in
accordance with Section 11.09 or (E) the Collateral to be released is being released
either (x) in connection with an Asset Sale for Qualified Collateral or (y)
otherwise upon the receipt of Qualified Collateral (including without limitation in
connection with any refinancing transaction) having a Fair Market Value at least
equal to the Collateral to be released, which Qualified Collateral, in either case,
is to be pledged to secure the Notes in accordance with Section 11.09.




     (2) that no Default or Event of Default has occurred and is continuing;




     (3) the Fair Market Value, in the opinion of the signers, of the property
(other than Trust Monies) to be released at the date of such application for
release, provided that it shall not be necessary under this clause (3) to state the
Fair Market Value of any property whose Fair Market Value is certified in a
certificate of an Independent Appraiser under clause (iii) below; and




     (4) that all conditions precedent in this Indenture and the Security Documents
relating to the release of the Collateral in question have been complied with; and




     (iii) If the property to be released is one or more Vessels the certificate of an
Independent Appraiser which reflects the Appraised Value of such Vessel or Vessels; and




     (iv) One or more Opinions of Counsel which, when considered collectively, shall be
substantially to the effect that all conditions precedent provided in this Indenture and the
Security Documents relating to the release of the Collateral have been complied with.



          (b) In connection with any release, the Co-Issuers and the Mortgaged Vessel Guarantors shall
(i) execute, deliver and record or file and obtain such instruments as the Collateral Trustee may
reasonably require, including, without limitation, amendments to the Security Documents and (ii)
deliver to the Trustee and the Collateral Trustee such evidence of the satisfaction of the
applicable provisions of this Indenture and the Security Documents as the Collateral Trustee may
reasonably require.




          (c) Notwithstanding any provision of this Section 11.04 to the contrary, the Co-Issuers may
obtain a release of (i) Net Proceeds from an Asset Sale involving Collateral that are required to
purchase Notes pursuant to a Collateral Sale Offer on the date of such purchase by directing the
Collateral Trustee in writing to cause to be applied such Net Proceeds to such purchase in
accordance with Section 4.13(II) or (ii) all or any portion of a Loss Redemption Amount deposited
with the Collateral Trustee in connection with an Event of Loss with respect to a Mortgaged Vessel
that is required to purchase Notes pursuant to an Event of Loss Offer on the date of such purchase
in accordance with Section 4.21 in the case of either (i) or (ii) above, by directing the
Collateral Trustee in writing to cause to be applied such amount thereto in accordance with such
Sections.




          (d) In case a Default or an Event of Default shall have occurred and be continuing, the
Co-Issuers, while in possession of the Collateral (other than cash and other personal property held
by, or required to be deposited or pledged with, the Collateral Trustee hereunder or under any
Security Document), may do any of the things enumerated in this Section 11.04 only if the Trustee
(upon notice to the Collateral Trustee), in its discretion, or the Holders of a majority in
aggregate principal amount of the






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outstanding Notes shall consent to such action, in which event
any certificate filed under this Section
11.04 shall omit the statement to the effect that no Default or Event of Default has occurred
and is continuing.




          All cash or Cash Equivalents received by the Collateral Trustee pursuant to this Section 11.04
shall be held by the Collateral Trustee on behalf of the Trustee for the benefit of the Holders, as
Trust Monies subject to application as provided in this Section 11.04 or in Article Twelve.




          Any releases of Collateral made in strict compliance with the provisions of this Section 11.04
shall be deemed not to impair the Security Interests created by this Indenture or the Security
Documents, as the case may be, in favor of the Collateral Trustee on behalf of the Trustee for the
benefit of the Holders, in contravention of the provisions of this Indenture.



SECTION 11.05. Trust Indenture Act Requirements.




          The release of any Collateral, whether pursuant to Article Eleven or Twelve, from the Lien of
any of the Security Documents or the release of, in whole or in part, the Liens created by any of
the Security Documents, will not be deemed to impair the Security Interests in contravention of the
provisions hereof if and to the extent the Collateral or Liens are released pursuant to the
applicable Security Documents and pursuant to the terms hereof. Each of the Holders acknowledges
that a release of Collateral or Liens strictly in accordance with the terms of the Security
Documents and the terms hereof will not be deemed for any purpose to be an impairment of the
Security Interests in contravention of the terms of this Indenture. Following qualification of
this Indenture under the Trust Indenture Act, the Co-Issuers and the Mortgaged Vessel Guarantors
shall cause Trust Indenture Act § 314(d) relating to the release of property or securities from the
Liens hereof and of the Security Documents to be complied with. Any certificate or opinion
required by Trust Indenture Act § 314(d) may be made by an Officer of the Co-Issuers, except in
cases in which Trust Indenture Act § 314(d) requires that such certificate of opinion be made by an
independent Person.



SECTION 11.06. Suits To Protect the Collateral.




          Following an Event of Default, subject to the provisions of the Security Documents, the
Collateral Trustee shall have the power but not the obligation (upon notice to the Trustee) to
institute and to maintain such suits and proceedings to prevent any impairment of the Collateral by
any acts which may be unlawful or in violation of any of the Security Documents or this Indenture,
and such suits and proceedings to preserve or protect its interests and the interests of the
Holders in the Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the Security Interests or be
prejudicial to the interests of the Holders, the Trustee or the Collateral Trustee).



SECTION 11.07. Purchaser Protected.




          In no event shall any purchaser in good faith of any property purported to be released
hereunder be bound to ascertain the authority of the Collateral Trustee to execute the release or
to inquire as to the existence or satisfaction of any conditions required by the provisions hereof
for the exercise of such authority; nor shall any purchaser or other transferee of any property or
rights permitted by this Article Eleven to be sold or otherwise disposed of by the Co-Issuers or a
Mortgaged Vessel Guarantor be under obligation to ascertain or inquire into the authority of the
Co-Issuers or any applicable Mortgaged Vessel Guarantor to make any such sale or other transfer.







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SECTION 11.08. Powers Exercisable by Receiver or Trustee.




          In case the Collateral owned by the Co-Issuers or any Mortgaged Vessel Guarantor shall be in
the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article
Eleven and the Security Documents upon the Co-Issuers and the Mortgaged Vessel Guarantors with
respect to the release, sale or other disposition of such property may be exercised by such
receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the
equivalent of any similar instrument of the Co-Issuers or the relevant Mortgaged Vessel Guarantor,
as the case may be, or of any officer or officers thereof required by the provisions of this
Article Eleven.



SECTION 11.09. Substitution of a Qualified Vessel or Qualified Collateral;
Designation as Mortgaged Vessel.




          (a) On the date on which a Vessel which is required to be designated as a “Mortgaged Vessel”
is acquired by a Co-Issuer or a Restricted Subsidiary (such date, a “Vessel Tender Date”), if a
Restricted Subsidiary of the Co-Issuers is the owner of such Vessel (the “Tendered Vessel Owner”),
it shall execute a Guarantee of the Notes and become a Mortgaged Vessel Guarantor under this
Indenture and it (or a Co-Issuer if such Co-Issuer is the owner of such Vessel) shall deliver to
the Trustee and the Collateral Trustee the documents and certificates required by this Indenture
and the Security Documents, including among other things: (i) a Ship Mortgage with respect to such
Vessel dated the Vessel Tender Date and substantially in the form of Exhibit F if the
Vessel is registered under the flag of Hong Kong or otherwise in a customary form for the relevant
jurisdiction (such Ship Mortgage having been duly received for recording in the appropriate
registry offices); (ii) an Assignment of Freights and Hires and Assignment of Insurance (if such
exist) with respect to such Vessel dated the Vessel Tender Date and substantially in the form of
Exhibits G-1 and G-2, respectively, to this Indenture (such Security Agreements
having been duly received for recording in the appropriate registry offices); (iii) the
certificates of an Independent Appraiser dated not more than 30 days prior to the Vessel Tender
Date setting forth its determination of the Appraised Value of such Vessel; (iv) a report of an
insurance broker with respect to insurance policies maintained by the Tendered Vessel Owner with
respect to such Vessel; (v) a current certificate from the American Bureau of Shipping, Det Norske
Veritas or Lloyds Register of Shipping or other classification society of recognized international
standing agreeable to the Trustee and the Collateral Trustee for such Vessel, which shall be free
from any material recommendations; (vi) a certificate of ownership and encumbrances from the
official registry of such Vessel; (vii) evidence satisfactory to the Trustee and the Collateral
Trustee that all Indebtedness outstanding with respect to such Vessel has been repaid and that all
security granted by, or covering assets or property of, such Co-Issuer or any of the Restricted
Subsidiaries with respect to such Indebtedness shall have been released; (viii) an Officers’
Certificate reasonably satisfactory to the Collateral Trustee certifying as to ownership of such
Qualified Vessel or Qualified Collateral and such other matters as the Collateral Trustee or the
Trustee may reasonably request and (ix) an Opinion of Counsel as to the compliance with the terms
of this Indenture, the perfection of the security interests of the Collateral Trustee on behalf of
the Trustee for the benefit of the Holders in such Qualified Vessel or Qualified Collateral and
such other matters as the Collateral Trustee or the Trustee may reasonably request.




          (b) The Co-Issuers or any Mortgaged Vessel Guarantor may at its option, at any time and from
time to time, substitute Qualified Collateral for a Mortgaged Vessel or Mortgaged Vessels
(including without limitation in connection with any refinancing transaction); provided that (i) at
the time of such substitution no Default shall have occurred and be continuing and (ii) such
substitution shall comply with the provisions of Section 11.09(a).







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SECTION 11.10. Determinations Relating to Collateral.




          In the event (i) the Trustee or the Collateral Trustee shall receive any written request from
the Co-Issuers or any Mortgaged Vessel Guarantor under any Security Document for consent or
approval with respect to any matter or thing relating to any Collateral or the obligations of the
Co-Issuers or such Mortgaged Vessel Guarantor with respect thereto or (ii) there shall be required
from the Collateral Trustee under the provisions of any Security Document any performance or the
delivery of any instrument or (iii) the Trustee or the Collateral Trustee shall become aware of any
nonperformance by the Co-Issuers or any Mortgaged Vessel Guarantor of any covenant or any breach of
any representation or warranty of the Co-Issuers or such Mortgaged Vessel Guarantor set forth in
any Security Document, then, in each such event, the Collateral Trustee shall be entitled (but not
obligated) (upon notice to the Trustee) at the expense of the Co-Issuers to hire experts,
consultants, agents and attorneys (including, without limitation, those with appropriate experience
and qualifications in all aspects of shipping, including operations and finance) to advise the
Collateral Trustee on the manner in which the Collateral Trustee should respond to such request or
render any requested performance or response to such nonperformance or breach or to act on its
behalf, including without limitation, in connection with Collateral located outside the United
States. The Collateral Trustee shall be fully protected in the taking of any action recommended or
approved by any such expert, consultant, agent or attorney or agreed to by a majority of Holders
pursuant to Section 6.05 and for any action taken by such consultant, agent or attorney.



SECTION 11.11. Release upon Termination of the Co-Issuers’ Obligations.




          In the event that the Co-Issuers deliver an Officers’ Certificate certifying that all of their
obligations under this Indenture have been satisfied and discharged by complying with the
provisions of Article Eight, the Security Interests shall automatically terminate, be released and
have no further force and effect and the Collateral Trustee shall not be deemed to hold the
Security Interests for the benefit of the Holders and shall, at the expense of the Co-Issuers and
the Mortgaged Vessel Guarantors, promptly deliver such releases of the Security Interest as may be
reasonably requested by the Co-Issuers.



SECTION 11.12. Collateral Trustee’s Duties in Respect of Collateral.




          The Collateral Trustee, acting in its capacity as collateral trustee, beneficiary or mortgagee
under each of the Security Documents, shall have only such duties with respect to the Collateral as
are set forth in this Indenture and the Security Documents.



SECTION 11.13. Parallel Debt.




          (a) Without prejudice to the provisions of this Indenture and the Security Documents and for
the purpose of preserving the initial and continuing validity of the security rights granted and to
be granted by the Co-Issuers and each Guarantor to the Collateral Trustee, an amount equal to and
in the same currency of the obligations under the Notes and the Guarantees from time to time due by
the Co-Issuers or such Guarantor in accordance with the terms and conditions of the Notes and
Guarantees, including for the avoidance of doubt, the limitations set out under Section 10.02,
shall be owing as a separate and independent joint and several obligation of the Co-Issuers and
each Guarantor to the Collateral Trustee (such payment undertaking and the obligations and
liabilities which are the result thereof the “Parallel Debt”).




          (b) The Co-Issuers, each Guarantor and the Collateral Trustee acknowledge that (i) for this
purpose the Parallel Debt constitutes undertakings, joint and several obligations and liabilities
of the Co-Issuers and each Guarantor to the Collateral Trustee under this Indenture and the
Security Documents which are separate and independent from, and without prejudice to, the
corresponding obligations






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under the Notes and Guarantees which the Co-Issuers or such Guarantor has to the Holders
and (ii) that the Parallel Debt represents the Collateral Trustee’s claims as Collateral Trustee to
receive payment of the Parallel Debt; provided that the total amount which may become due under the
Parallel Debt shall never exceed the total amount which may become due under the Notes and
Guarantees; provided, further, that the Collateral Trustee shall exercise its rights with respect
to the Parallel Debt solely in accordance with this Indenture and the Security Documents.




          (c) Every payment of monies made by the Co-Issuers or a Guarantor to the Collateral Trustee
shall (conditionally upon such payment not subsequently being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general
application) be in satisfaction pro tanto of the covenant by the Co-Issuers or such Guarantor
contained in Section 11.13(a); provided that if any such payment as is mentioned above is
subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy,
liquidation or similar laws of general application the Collateral Trustee shall be entitled to
receive the amount of such payment from the Co-Issuers or such Guarantor and the Co-Issuers or such
Guarantor shall remain liable to perform the relevant obligation and the relevant liability shall
be deemed not to have been discharged.




          (d) Subject to the provision in paragraph (c) of this Section 11.13:





     (i) the total amount due and payable as Parallel Debt under this Section 11.13 shall be
decreased to the extent that the Co-Issuers or a Guarantor shall have paid any amounts to
the Collateral Trustee or to the Trustee on behalf of the Holders or any of them to reduce
the outstanding principal amount of the Notes or the Collateral Trustee or the Trustee on
behalf of the Holders otherwise receives any amount in payment of the Notes and the
Guarantees; and




     (ii) to the extent that the Co-Issuers or a Guarantor shall have paid any amounts to
the Trustee or to the Collateral Trustee under the Parallel Debt or the Trustee or the
Collateral Trustee shall have otherwise received monies in payment of the Parallel Debt, the
total amount due and payable under the Notes and the Guarantees shall be decreased as if
said amounts were received directly in payment of the Notes and Guarantees.


SECTION 11.14. Change of Flag.




          Notwithstanding anything to the contrary in this Indenture, the Co-Issuers or a Mortgaged
Vessel Guarantor may transfer or change the flag of any of its Mortgaged Vessels to the flag of a
Permitted Flag Jurisdiction and in connection therewith the Collateral Trustee shall release the
existing Ship Mortgage and related Security Documents to which any Mortgaged Vessel is subject in
connection with the transfer or change of the flag of such Mortgaged Vessel to another Permitted
Flag Jurisdiction if (i) the owner of the Mortgaged Vessel has executed (A) a new Ship Mortgage
(granting the Collateral Trustee a Security Interest in such Mortgaged Vessel subject only to
Permitted Liens) and (B) the related Security Documents with respect to such Mortgaged Vessel,
dated the date such Mortgaged Vessel shall be released from the existing Ship Mortgage and related
Security Documents to which it is subject, which Ship Mortgage and related Security Documents shall
be in appropriate form for recording or registration in the appropriate governmental offices of the
Permitted Flag Jurisdiction under which it is being reflagged and the appropriate governmental
offices in the jurisdiction of incorporation and/or domicile of the applicable Co-Issuer or
Mortgaged Vessel Guarantor if required by applicable law in order to perfect the Security Interest
therein created, as to which the Collateral Trustee shall be entitled to rely on an Opinion of
Counsel to the Company with respect thereto; and (ii) the Mortgaged Vessel Guarantor has made
arrangements reasonably satisfactory to the Collateral Trustee for recording the Ship Mortgage
referred to in clause (i) above in an appropriate registry office of the Permitted Flag
Jurisdiction under which the






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Mortgaged Vessel is being reflagged as soon as reasonably practicable and to make
any other filing necessary to perfect the security therein.



SECTION 11.15. Appointment of Collateral Trustee and Supplemental Collateral
Trustees.




          The parties hereto acknowledge and agree, and each Holder by accepting the Notes acknowledges
and agrees that the Co-Issuers hereby appoint Wells Fargo Bank, National Association to act as
Collateral Trustee hereunder, and Wells Fargo Bank, National Association accepts such appointment.
The Trustee and the Holders acknowledge that the Collateral Trustee will be acting in respect to
the Security Documents and the security granted thereunder on the terms outlined therein (which
terms in respect of the rights and protections of the Collateral Trustee in the event of an
inconsistency with the terms of this Indenture, will prevail). Notwithstanding anything to the
contrary in any Security Document, in the event of any conflict between any provision set forth in
any Security Document and any provision of this Indenture that affects any rights, privileges,
protections and indemnities in favor of the Collateral Trustee, such provision set forth in this
Indenture shall prevail.



It is recognized that among other things, in case of litigation under this Indenture or the
Security Documents, and in particular in case of the enforcement thereof on default, or in the case
the Collateral Trustee deems that by reason of any present or future law of any jurisdiction it may
not exercise any of the powers, rights or remedies herein granted to the Collateral Trustee or hold
title to the properties, in trust, as herein granted or take any action which may be desirable or
necessary in connection therewith, it may be necessary that the Collateral Trustee appoint an
individual or institution as a separate or co-trustee. The following provisions of this Section
and Section 11.17 are adopted therefor.




          (a) The Collateral Trustee may perform any of its duties and exercise any of its rights and
powers through one or more sub-trustees or co-trustees appointed by it. The Collateral Trustee and
any such sub-trustee or co-trustee may perform any of its duties and exercise any of its rights and
powers through its affiliates. All of the provisions of this Indenture applicable to the
Collateral Trustee (other than covenants and obligations relating to the Parallel Debt), including,
without limitation, its rights to be indemnified, shall apply to and be enforceable by any such
sub-trustee and Affiliates of a Collateral Trustee and any such sub-trustee or co-trustee. All
references herein to a “Collateral Trustee” (other than covenants and obligations relating to the
Parallel Debt) shall include any such sub-trustee or co-trustee and Affiliates of a Collateral
Trustee or any such sub-trustee or co-trustee.




          (b) It is the purpose of this Indenture and the Security Documents that there shall be no
violation of any law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction. Without limiting
paragraph Section 11.15(a) hereof, it is recognized that in case of litigation under, or
enforcement of, this Indenture or any of the Security Documents, or in case the Collateral Trustee
deems that by reason of any present or future law of any jurisdiction it may not exercise any of
the rights, powers or remedies granted herein or in any of the Security Documents or take any other
action which may be desirable or necessary in connection therewith, the Collateral Trustee is
hereby authorized to appoint an additional individual or institution selected by the Collateral
Trustee in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral
trustee, sub-trustee, administrative sub-agent or administrative co-agent (any such additional
individual or institution being referred to herein individually as a “Supplemental Collateral
Trustee” and collectively as “Supplemental Collateral Trustees”).




          (c) In the event that the Collateral Trustee appoints a Supplemental Collateral Trustee with
respect to any Collateral, (i) each and every right, power, privilege or duty expressed or intended
by this Agreement or any of the other Security Documents (other than the rights arising in respect
of the Parallel Debt under Section 11.13) to be exercised by or vested in or conveyed to such
Collateral Trustee






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with respect to such Collateral shall be exercisable by and vest in such Supplemental
Collateral Trustee to the extent, and only to the extent, necessary to enable such Supplemental
Collateral Trustee to exercise such rights, powers and privileges with respect to such Collateral
and to perform such duties with respect to such Collateral, and every covenant and obligation
contained in the Security Documents and necessary to the exercise or performance thereof by such
Supplemental Collateral Trustee (other than covenants and obligations relating to the Parallel
Debt) shall run to and be enforceable by either such Collateral Trustee or such Supplemental
Collateral Trustee, and (ii) the provisions of this Indenture (and, in particular, this Article
Eleven) that refer to the Collateral Trustee shall inure to the benefit of such Supplemental
Collateral Trustee and all references therein to the Collateral Trustee shall be deemed to be
references to a Collateral Trustee and/or such Supplemental Collateral Trustee, as the context may
require.




          (d) Should any instrument in writing from the Co-Issuers or any other obligor be required by
any Supplemental Collateral Trustee so appointed by the Collateral Trustee for more fully and
certainly vesting in and confirming to him or it such rights, powers, privileges and duties, the
Co-Issuers and relevant Guarantor shall execute, acknowledge and deliver any and all such
instruments promptly upon request by the Collateral Trustee. In case any Supplemental Collateral
Trustee, or a successor thereto, shall die, become incapable of acting, resign or be removed, all
the rights, powers, privileges and duties of such Supplemental Collateral Trustee, to the extent
permitted by law, shall vest in and be exercised by the Collateral Trustee until the appointment of
a new Supplemental Collateral Trustee.




          (e) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Collateral Trustee and,
where it is hereby expressly required, to the Co-Issuers. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “act” of
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Co-Issuers, if made in the manner provided in this
Section 11.15.




          (f) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such officer the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer’s individual capacity, such
certificate or affidavit shall also constitute sufficient proof of such signer’s authority. The
fact and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Collateral Trustee deems
sufficient.




          (g) Subject to Section 9.02 hereof, the Collateral Trustee may (but shall not be obligated
to), without the consent of the Holders, give any consent, waiver or approval required under any of
the Security Documents or by the terms hereof with respect to the Collateral, but shall not without
the consent of the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding (i) give any consent, waiver or approval or (ii) agree to any amendment or modification
of any of the Security Documents, in each case which will have an adverse effect on the interests
of any Holder. The Collateral Trustee shall be entitled to request and conclusively rely on an
Opinion of Counsel with respect to whether any consent, waiver, approval, amendment or modification
will have an adverse effect on the interests of any Holder.







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SECTION 11.16. Compensation and Indemnity of Collateral Trustee; Immunities of
Collateral Trustee.




          (a) The Co-Issuers shall pay to the Collateral Trustee from time to time such reasonable
compensation as the Co-Issuers and the Collateral Trustee shall from time to time agree in writing
for its services rendered by it hereunder and under the Security Documents. The Collateral
Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Co-Issuers shall reimburse the Collateral Trustee promptly upon request for all
reasonable disbursements, expenses and advances (including reasonable fees and expenses of counsel)
incurred or made by it in addition to the compensation for its services, except any such
disbursements, expenses and advances as may be attributable to the Collateral Trustee’s gross
negligence, bad faith or willful misconduct. Such expenses shall include the reasonable fees and
expenses of the Collateral Trustee’s agents and counsel.




          (b) The Co-Issuers shall indemnify the Collateral Trustee or any predecessor Collateral
Trustee and its officers, directors, employees and agents for, and hold them harmless against, any
and all loss, damage, claims, liability or reasonable expenses, including taxes (other than taxes
based upon, measured by or determined by the income of such Person), liability or expense incurred
by them except for such actions to the extent caused by any negligence or willful misconduct on
their part, arising out of or in connection with the acceptance or administration of this trust or
the Security Documents including the reasonable costs and expenses of defending themselves against
or investigating any claim or liability in connection with the exercise or performance of any of
the Collateral Trustee’s rights, powers or duties hereunder. The Collateral Trustee shall notify
the Co-Issuers promptly of any claim asserted against the Collateral Trustee or any of its agents
for which it may seek indemnity. The Co-Issuers shall defend the claim and the Collateral Trustee
shall cooperate in the defense. The Collateral Trustee and its agents subject to the claim may
have separate counsel and the Co-Issuers shall pay the reasonable fees and expenses of such
counsel; provided, however, that the Co-Issuers shall not be required to pay such fees and expenses
if there is no conflict of interest between the Co-Issuers and the Collateral Trustee and its
agents subject to the claim in connection with such defense as reasonably determined by the
Collateral Trustee. The Co-Issuers need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld. The Co-Issuers need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by the Collateral Trustee
through the Collateral Trustee’s gross negligence, willful misconduct or breach of its duties under
this Indenture or the Security Documents, which breach constitutes gross negligence.




          (c) To secure the Co-Issuers’ payment obligations in this Section 11.16, the Collateral
Trustee shall have a Lien prior to the Notes against all money or property held or collected by the
Collateral Trustee, in its capacity as Collateral Trustee, except money or property held in trust
to pay principal and interest (including Additional Interest, if any) on particular Notes.




          (d) When either the Collateral Trustee incurs expenses or renders services after a Default
specified in Section 6.01(10) or (11) occurs, such expenses and the compensation for such services
shall be paid to the extent allowed under any Bankruptcy Law.




          (e) Notwithstanding any provision to the contrary elsewhere in this Indenture or any Security
Documents, the Collateral Trustee will not have any duties, responsibilities or obligations other
than those expressly assumed by it in this Indenture and the Security Documents to which it is a
party. The Collateral Trustee will not be required to take any action that is contrary to
applicable law or any provision of this Indenture or the Security Documents to which it is a party
or will adversely affect the rights, privileges, benefits and immunities of or be contrary to the
interests of the Collateral Trustee. The Collateral Trustee shall not have any fiduciary
relationship with the Holders or Trustee and no implied






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covenants, obligations or responsibilities shall be read into this Indenture or the Security
Documents against the Collateral Trustee.




          (f) The Collateral Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents, attorneys, accountants, appraisers,
consultants or other experts or advisors selected by it with due care as it may require and will
not be responsible for any misconduct or negligence on the part of any of them.




          (g) The Collateral Trustee has accepted and is bound by the Security Documents executed by the
Collateral Trustee as of the Issue Date and, as directed in writing by an act of Holders or as
otherwise provided for in this Indenture, the Collateral Trustee shall execute additional Security
Documents delivered to it after the Issue Date; provided, however, that such additional Security
Documents do not adversely affect the rights, privileges, benefits and immunities of the Collateral
Trustee.




          (h) (i) The Collateral Trustee may at any time solicit written confirmatory instructions from
the Holders, an Officers’ Certificate or an order of a court of competent jurisdiction, as to any
action that it may be requested or required to take, or that it may propose to take, in the
performance of any of its obligations under this Indenture or the Security Documents.




          (ii) No written direction given to the Collateral Trustee by the Holders that in the
reasonable judgment of the Collateral Trustee imposes, purports to impose or might reasonably be
expected to impose upon the Collateral Trustee any obligation or liability not set forth in or
arising under this Indenture and the Security Documents will be binding upon the Collateral Trustee
unless the Collateral Trustee elects, at its sole option, to accept such direction.




          (i) The Collateral Trustee will not be responsible or liable for any action taken or omitted
to be taken by it hereunder or under any Security Document, except for its own gross negligence or
willful misconduct as determined by a final non-appealable judgment of a court of competent
jurisdiction.




          (j) The Collateral Trustee will be entitled to require that all agreements, certificates,
opinions, instruments and other documents at any time submitted to it, including those expressly
provided for in this Indenture, be delivered to it in a form and with substantive provisions
reasonably satisfactory to it.




          (k) The Collateral Trustee may seek and rely upon, and shall be fully protected in relying
upon, any judicial order or judgment, upon any advice, opinion or statement of legal counsel,
independent consultants and other experts selected by it in good faith and upon any certification,
instruction, notice or other writing delivered to it by any Co-Issuer or any Guarantor in
compliance with the provisions of this Indenture or delivered to it by any Holder without being
required to determine the authenticity thereof or the correctness of any fact stated therein or the
propriety or validity of service thereof. The Collateral Trustee may act in reliance upon any
instrument comporting with the provisions of this Indenture or any signature reasonably believed by
it to be genuine and may assume that any Person purporting to give notice or receipt or advice or
make any statement or execute any document in connection with the provisions hereof or the other
Security Documents has been duly authorized to do so. To the extent an Officers’ Certificate or
Opinion of Counsel is required or permitted under this Indenture to be delivered to the Collateral
Trustee in respect of any matter, the Collateral Trustee may rely conclusively on an Officers’
Certificate or Opinion of Counsel as to such matter and such Officers’ Certificate or opinion of
counsel shall be full protection to the Collateral Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture and the other Security Documents.







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          (l) As to any matter not expressly provided for by this Indenture or the other Security
Documents, the Collateral Trustee will act or refrain from acting as directed in writing by the
Holders and will be fully protected if it does so, and any action taken, suffered or omitted
pursuant hereto or thereto shall be binding on the Holders. In the absence of written direction of
the Holders described in the immediately preceding paragraph the Collateral Trustee shall have no
duty to act, consent or request any action from any Co-Issuer or any Guarantor or any other Person
in connection with this Indenture (including all exhibits attached hereto).




          (m) The Collateral Trustee will not be required to take any action at the direction of any
Holders, to advance or expend any funds or otherwise incur any financial liability in the
performance of its duties or the exercise of its powers or rights hereunder unless it has been
provided with pre-funding, security or indemnity reasonably satisfactory to it against any and all
cost, loss, liability or expense which may be incurred by it by reason of taking or continuing to
take such action.




          (n) In the event there is any good faith disagreement between the other parties to this
Indenture or any of the Security Documents resulting in adverse claims being made in connection
with Collateral held by the Collateral Trustee and the terms of this Indenture or any of the
Security Documents do not unambiguously mandate the action the Collateral Trustee is to take or not
to take in connection therewith under the circumstances then existing, or the Collateral Trustee is
in doubt as to what action it is required to take or not to take hereunder or under the Security
Documents, it will be entitled to refrain from taking any action (and will incur no liability for
doing so) until directed otherwise (subject to Section 11.16(l)) in writing by a request signed
jointly by the parties hereto entitled to give such direction or by order of a court of competent
jurisdiction.




          (o) (i) Beyond the exercise of reasonable care in the custody of Collateral in its possession,
the Collateral Trustee will have no duty as to any Collateral in its possession or control or in
the possession or control of any agent or bailee or any income thereon or as to preservation of
rights against prior parties or any other rights pertaining thereto and the Collateral Trustee will
not be responsible for filing any financing or continuation statements or recording any documents
or instruments in any public office at any time or times or otherwise perfecting or maintaining the
perfection of any Liens on the Collateral. The Collateral Trustee will be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property, and the Collateral Trustee
will not be liable or responsible for any loss or diminution in the value of any of the Collateral
by reason of the act or omission of any carrier, forwarding agency or other agent or bailee
selected by the Collateral Trustee in good faith. Pursuant to applicable law, each Co-Issuer
authorizes the Collateral Trustee to file or record financing statements and other filing or
recording documents or instruments with respect to the signature of such Co-Issuer or Mortgaged
Vessel Guarantor in such form and in such offices as may be necessary or as the Collateral Trustee
may determine appropriate to perfect the security interests of the Collateral Trustee under this
Indenture.




          (ii) The Collateral Trustee will not be responsible for the existence, genuineness or value of
any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in
any of the Collateral, whether impaired by operation of law or by reason of any action or omission
to act on its part hereunder, except to the extent such action or omission constitutes gross
negligence or willful misconduct on the part of the Collateral Trustee, for the validity or
sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of
the title of any Co-Issuer or any Guarantor to the Collateral, for insuring the Collateral or for
the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral. The Collateral Trustee hereby disclaims any representation or
warranty to the current and future Holders concerning the perfection of the Liens granted hereunder
or in the value of any of the Collateral.







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          (iii) Neither the Collateral Trustee nor any of its experts, officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it under or in connection with this Indenture or the Security Documents
(except for its gross negligence or willful misconduct), or (b) responsible in any manner for any
recitals, statements, representations or warranties (other than its own recitals, statements,
representations or warranties) made in this Indenture or any of the Security Documents or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Collateral Trustee under or in connection with, this Indenture or any of the Security Documents or
for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this
Indenture or any of the Security Documents or for any failure of the Co-Issuers or any other Person
to perform their obligations hereunder and thereunder. The Collateral Trustee shall not be under
any obligation to any Person to ascertain or to inquire as to (a) the observance or performance of
any of the agreements contained in, or conditions of, this Indenture or any of their Security
Documents or to inspect the properties, books or records of any Co-Issuer, (b) whether or not any
representation or warranty made by any Person in connection with this Indenture or any of the
Security Documents is true, (c) the performance by any Person of its obligations under this
Indenture or Security Documents or (d) the breach of or default by any Person of its obligations
under this Indenture or any of the Security Documents.




          (iv) The Collateral Trustee shall not be bound to (a) account to any Person for any sum or the
profit element of any sum received for its own account; (b) disclose to any other Person any
information relating to the Person if such disclosure would, or might, constitute a breach of any
law or regulation or be otherwise actionable at the suit of any Person or (c) be required to take
any action that it believes, based on advice of counsel, is in conflict with any applicable law,
this Indenture or any Security Documents or any order of any court or administrative agency.




          (v) Notwithstanding anything in this Indenture or any Security Documents to the contrary, (a)
in no event shall the Collateral Trustee or any officer, director, employee, representative or
agent of the Collateral Trustee be liable under or in connection with this Indenture or any of the
Security Documents for indirect, special, incidental, punitive or consequential losses or damages
of any kind whatsoever, including but not limited to lost profits or loss of opportunity, whether
or not foreseeable, even if the Collateral Trustee has been advised of the possibility thereof and
regardless of the form of action in which such damages are sought; and (b) the Collateral Trustee
shall be afforded all of the rights, powers, immunities and indemnities set forth in this Indenture
or any of Security Documents to which it is a signatory as if such rights, powers, immunities and
indemnities were specifically set out in each such documents. In no event shall the Collateral
Trustee be obligated to invest any amounts received by it hereunder.




          (vi) The Collateral Trustee shall not be deemed to have actual, constructive, direct or
indirect knowledge or notice of the occurrence of any Default unless and until the Collateral
Trustee has received a written notice or a certificate from the Co-Issuers stating that a Default
has occurred. The Collateral Trustee shall have no obligation whatsoever either prior to or after
receiving such notice or certificate to inquire whether a Default has in fact occurred and shall be
entitled to rely conclusively, and shall be fully protected in so relying, on any notice or
certificate so furnished to it. No provision of this Indenture or any of the Security Documents
shall require the Collateral Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties under this Indenture or any Security
Documents or the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability
including an advance of moneys necessary to perform work or to take the action requested is not
reasonably assured to it, the Collateral Trustee may decline to act unless it receives reasonable
indemnity satisfactory to it, including an advance of moneys necessary to take the action
requested. The Collateral Trustee shall be under no obligation or duty to take any action under
this Indenture or any of the Security Documents or






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otherwise if taking such action (i) would subject the Collateral Trustee to a tax in any
jurisdiction where it is not then subject to a tax or (ii) would require the Collateral Trustee to
qualify to do business in any jurisdiction where it is not then so qualified.




          (vii) If, with respect to a proposed action to be taken by it, the Collateral Trustee shall
determine in good faith that the provisions of this Indenture or any Security Documents relating to
the functions or responsibilities or discretionary powers of the Collateral Trustee are or may be
ambiguous or inconsistent, the Collateral Trustee shall notify the Trustee, identifying the
proposed action, and may decline either to perform such function or responsibility or to take the
action requested unless it has received the written confirmation of the Trustee that the action
proposed to be taken by the Collateral Trustee is consistent with the terms of this Indenture or of
the Security Documents or is otherwise appropriate. The Collateral Trustee shall be fully
protected in acting or refraining from acting upon the confirmation of the Trustee, in this
respect, and such confirmation shall be binding upon the Holders.




          (viii) Upon receipt of indemnity requested by the Collateral Trustee and assuming the
requested action does not conflict with other clauses of this Section 11.16(o), the Collateral
Trustee shall act upon the specific instructions of the Trustee, except for any instructions that
in the good faith judgment of the Collateral Trustee may be contrary to this Indenture or of the
Security Documents or applicable law.




          (p) Notwithstanding anything contained herein to the contrary, the right of the Trustee or the
Collateral Trustees to perform any discretionary act enumerated herein or in any Security Documents
to which it is a party (including the right to consent to or approve of any action or document
which requires their consent or approval and the right to waive any provision of, or consent to any
change or amendment to, any of the Operative Documents) shall not be construed as giving rise to
any expressed or implied duty owed by the Trustee or Collateral Trustee.




          (q) In the event that the Collateral Trustee or Trustee is required to acquire title to an
asset for any reason, or take any managerial action of any kind in regard thereto, in order to
carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral
Trustee’s or Trustee’s sole discretion may cause the Collateral Trustee or Trustee to be
considered an “owner or operator” under any environmental laws or otherwise cause the Collateral
Trustee or Trustee to incur, or be exposed to, any environmental liability or any liability under
any other federal, state, foreign or local law, the Collateral Trustee and Trustee reserve the
right, instead of taking such action, either to resign as Collateral Trustee or Trustee, as the
case may be, or to arrange for the transfer of the title or control of the asset to a court
appointed receiver. The Collateral Trustee will not be liable to any Person for any environmental
liability or any environmental claims or contribution actions under any federal, state, foreign or
local law, rule or regulation by reason of the Collateral Trustee’s actions and conduct as
authorized, empowered and directed hereunder or relating to any kind of discharge or release or
threatened discharge or release of any hazardous materials into the environment and shall be
indemnified and held harmless by the Co-Issuers against any such claims, liabilities or actions.




          (r) The Collateral Trustee shall not nor shall any receiver appointed by or any agent of the
Collateral Trustee, by reason of taking possession of any Collateral or any part thereof or any
other reason or on any basis whatsoever, be liable to account for anything except actual receipts
or be liable for any loss or damage arising from a realization of the Collateral or any part
thereof or from any act, default or omission in relation to the Collateral or any part thereof or
from any exercise or non-exercise by it of any power, authority or discretion conferred upon it in
relation to the Collateral or any part thereof unless such loss or damage shall be caused directly
by its own willful misconduct or gross negligence. The Collateral Trustee shall not have any
responsibility or liability arising from the fact that the Collateral may be held in safe custody
by a custodian. The Collateral Trustee assumes no responsibility for the validity,






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sufficiency or enforceability (which the Collateral Trustee has not investigated) of the
Collateral purported to be created by any supplemental indenture or other document. In addition,
the Collateral Trustee has no duty to monitor the performance by the Co-Issuers and the Guarantors
of their obligations to the Collateral Trustee nor is it obliged (unless indemnified to its
satisfaction) to take any other action which may involve the Collateral Trustee in any personal
liability or expense.




          (s) Notwithstanding any other provision in this Indenture, the foregoing provisions of this
Section 11.16 shall survive the satisfaction and discharge of this Indenture or the appointment of
a successor Collateral Trustee.



SECTION 11.17. Replacement of Collateral Trustee.




          Subject to the appointment and acceptance of a successor Collateral Trustee as provided in
this Section 11.17, the Collateral Trustee may resign at any time upon 30 days’ written notice to
the Co-Issuers and the Trustee in writing. The Holders of a majority in principal amount of the
outstanding Notes may, subject to the appointment and acceptance of a successor Collateral Trustee
as provided in this Section 11.17, remove the Collateral Trustee upon 30 days written notice to the
Co-Issuers, the Trustee and the Collateral Trustee and may appoint a successor Collateral Trustee
(which Collateral Trustee shall be reasonably acceptable to the Co-Issuers). The Co-Issuers may
remove the Collateral Trustee if:





     (1) the Collateral Trustee fails to comply with Section 7.10;




     (2) the Collateral Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Collateral Trustee under any Bankruptcy Law;




     (3) a receiver or other public officer takes charge of the Collateral Trustee or its
property; or




     (4) the Collateral Trustee becomes incapable of acting as Collateral Trustee hereunder.



          If the Collateral Trustee resigns or is removed or if a vacancy exists in the office of the
Collateral Trustee for any reason, the Co-Issuers shall notify each Holder of such event and shall
promptly appoint a successor Collateral Trustee. Within one year after the successor Collateral
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Collateral Trustee to replace the successor Collateral Trustee appointed by
the Co-Issuers.




          A successor Collateral Trustee shall deliver a written acceptance of its appointment to the
retiring Collateral Trustee and to the Co-Issuers. Immediately after that, the retiring Collateral
Trustee shall transfer, after payment of all sums then owing to the Collateral Trustee pursuant to
Section 11.16, all property held by it as Collateral Trustee hereunder and under the Security
Documents to the successor Collateral Trustee, subject to the Lien provided in Section 11.16, the
resignation or removal of the retiring Collateral Trustee shall become effective, and the successor
Collateral Trustee shall have all the rights, powers and duties of the Collateral Trustee under
this Indenture. A successor Collateral Trustee shall mail notice of its succession to the Trustee
and each Holder.




          Any resignation or removal of the Collateral Trustee pursuant to this Indenture shall be
deemed to be a resignation or removal of the Collateral Trustee under the Security Documents and
any appointment of a successor Collateral Trustee pursuant to this Indenture shall be deemed to be
an appointment of such person as a successor to the Collateral Trustee under the Security Documents
and such successor shall assume all of the obligations of the Collateral Trustee under the Security
Documents.







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          If a successor Collateral Trustee does not take office within 60 days after the retiring
Collateral Trustee resigns or is removed, the retiring Collateral Trustee, the Co-Issuers or the
Holders of at least 10% in principal amount of the outstanding Notes may petition, at the expense
of the Co-Issuers, any court of competent jurisdiction for the appointment of a successor
Collateral Trustee at the expense of the Co-Issuers.




          If the Collateral Trustee fails to comply with Section 7.10, any Holder may petition any court
of competent jurisdiction for the removal of the Collateral Trustee and the appointment of a
successor Collateral Trustee.




          Notwithstanding replacement of the Collateral Trustee pursuant to this Section 11.17, the
Co-Issuers’ obligations under Section 11.16 shall continue for the benefit of the retiring
Collateral Trustee.




          In addition to the foregoing and notwithstanding any provision to the contrary, any
resignation, removal or replacement of the Collateral Trustee pursuant to this Section 11.17 shall
not be effective until (a) a successor to the Collateral Trustee has agreed to act under the terms
of this Indenture and (b) all of the Security Interests in the Collateral has been transferred to
such successor. Any replacement or successor Collateral Trustee shall be a bank meeting the
requirements of Section 7.10 applicable to a Collateral Trustee with an office in New York, New
York, or an Affiliate of any such bank. Upon acceptance of its appointment as Collateral Trustee
hereunder by a replacement or successor, such replacement or successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Collateral Trustee
hereunder, and the retiring Collateral Trustee shall be discharged from its duties and obligations
hereunder.




ARTICLE TWELVE




APPLICATION OF TRUST MONIES


SECTION 12.01. “Trust Monies” Defined.




          All cash or Cash Equivalents received by the Collateral Trustee as, or in respect of,
Collateral:





     (a) upon the release of property from the Lien of any of the Security Documents,
including all moneys received in respect of the principal of all purchase money,
governmental and other obligations; or




     (b) as compensation for, or proceeds of the sale of all or any part of the Collateral
taken by eminent domain or purchased by, or sold pursuant to an order of, a governmental
authority or otherwise disposed of; or




     (c) as proceeds of insurance upon any, all or part of the Collateral (other than
proceeds under any protection and indemnity or other third-party liability insurance); or




     (d) pursuant to any of the Security Documents; or




     (e) as proceeds of any other sale or other disposition of all or any part of the
Collateral by or on behalf of the Collateral Trustee or any collection, recovery, receipt,
appropriation or other realization of or from all or any part of the Collateral pursuant to
the Security Documents or otherwise; or



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     (f) consisting of the cash or Cash Equivalents component of Qualified Collateral; or




     (g) any money held from time to time in the Collateral Account; or




     (h) for application under this Article Twelve as elsewhere provided in this Indenture
or any Security Document, or whose disposition is not elsewhere otherwise specifically
provided for herein or in any Security Document;


(all such moneys being herein sometimes called “Trust Monies”; provided, however, that Trust Monies
shall not include (a) any property (i) deposited with the Collateral Trustee pursuant to Section
4.09, 4.13(I), 4.20, Articles Three or Eight or delivered to or (ii) received by the Collateral
Trustee pursuant to Section 6.10 hereof or (b) any interest earned on Trust Monies deposited with
the Collateral Trustee, which interest shall be paid over to the Co-Issuers upon their request)
shall be held by the Collateral Trustee on behalf of the Trustee for the benefit of the Holders as
a part of the Collateral and, upon any entry upon or sale or other disposition of the Collateral or
any part thereof pursuant to any of the Security Documents, said Trust Monies shall be applied in
accordance with Section 6.10; but, prior to any such entry, sale or other disposition, all or any
part of the Trust Monies may be withdrawn, and shall be released, paid or applied by the Collateral
Trustee, from time to time as provided in Section 11.04 and Sections 12.02 through 12.04,
inclusive. It is understood and agreed that any amounts received by the Collateral Trustee or the
Trustee in respect of expenses, fees or indemnity amounts owed to the Collateral Trustee or the
Trustee shall not be deemed to be Trust Monies.




          On the Issue Date there shall be established and, at all times hereafter until this Indenture
shall have terminated, there shall be maintained with the Collateral Trustee an account which shall
be entitled the “Collateral Account” (the “Collateral Account”). The Collateral Account shall be
established and maintained by the Collateral Trustee in its own name at its Corporate Trust
Offices. All Trust Monies which are received by the Collateral Trustee shall be deposited in the
Collateral Account and thereafter shall be held, applied and/or disbursed by the Collateral Trustee
in accordance with the terms of this Article Twelve. Each Co-Issuer and each Mortgaged Vessel
Guarantor hereby pledges and grants a security interest to the Collateral Trustee in, and the
Collateral Trustee shall have a Lien on and security interest in, the Collateral Account and all
cash and Cash Equivalents therein from time to time, and any proceeds thereof, for the benefit of
the Holders as part of the Collateral.



SECTION 12.02. Use of Trust Monies; Retirement of Notes.




          The Collateral Trustee shall, at the request of the Trustee, direct Trust Monies to the
Trustee for application from time to time (i) in the manner provided under Article Eleven and (ii)
to the payment of the principal of (at a purchase price of not less than 100% of the principal
amount of the relevant Notes), any Notes, on any Maturity Date or to the redemption thereof or the
purchase thereof upon tender or in the open market or at private sale or upon any exchange or in
any one or more of such ways, including, without limitation, pursuant to an offer to purchase,
redemption or defeasance under Section 4.13 or 4.21, a Change of Control Offer under Section 4.09
or defeasance under Article Eight (including, in each case, each related required interest
payment), as the Co-Issuers shall request in writing, upon receipt by the Collateral Trustee and
the Trustee of the following:





     (a) Board Resolutions of the Co-Issuers directing the application pursuant to this
Section 12.02 of a specified amount of Trust Monies and, in case any such moneys are to be
applied to payment, designating the Notes so to be paid and, in case any such moneys are to
be applied to the purchase of Notes, prescribing the method of purchase, the price or prices
to be paid and the maximum aggregate principal amount of Notes to be purchased and any other
provisions of this Indenture governing such purchase;



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     (b) cash in the maximum amount of the accrued interest, if any, required to be paid in
connection with any such purchase, which cash shall be held by the Collateral Trustee in
trust for such purpose;




     (c) an Officers’ Certificate, dated not more than five Business Days prior to the date
of the relevant application stating


     (i) that no Default exists unless such Default would be cured thereby; and



     (ii) that all conditions precedent and covenants herein provided for relating
to such application of Trust Monies have been complied with; and





     (d) an Opinion of Counsel stating that the documents and the cash or Cash Equivalents,
if any, which have been or are therewith delivered to and deposited with the Collateral
Trustee conform to the requirements of this Indenture and that all conditions precedent
herein provided for relating to such application of Trust Monies have been complied with.



          Upon compliance with the foregoing provisions of this Section, the Collateral Trustee shall
apply Trust Monies as directed and specified by such Board Resolution, up to, but not exceeding,
the aggregate principal amount of the Notes so paid or purchased, using the cash deposited pursuant
to clause (b) of this Section 12.02, to the extent necessary, to pay any accrued and unpaid
interest required in connection with such purchase.




          A Board Resolution expressed to be irrevocable directing the application of Trust Monies under
this Section 12.02 to the payment of the principal of Notes shall for all purposes of this
Indenture be deemed the equivalent of the deposit of money with the Collateral Trustee in trust for
such purpose. Such Trust Monies and any cash deposited with the Collateral Trustee pursuant to
clause (b) of this Section 12.02 for the payment of accrued interest shall not, after compliance
with the foregoing provisions of this Section, be deemed to be part of the Collateral or Trust
Monies.




          With respect to any Trust Monies to be released by the Collateral Trustee to the Company in
connection with any substitution of Collateral, the requisite amount of Trust Monies (in each
instance, the “Released Monies”) shall be released from escrow by the Collateral Trustee not more
than five Business Days before the expected delivery date of the applicable substitute Qualified
Vessel to a bank account designated by the Company and will then be remitted to the seller of such
Vessel in the form of a conditional payment to the seller’s bank in accordance with the terms of
the acquisition contract and in a manner consistent with customary vessel acquisition practice.
During such five Business Day period before the expected delivery date, such Released Monies shall
be released from the Security Interest and Lien granted pursuant to this Indenture and the Security
Documents. In the event that the applicable Mortgaged Vessel Guarantor shall not have delivered
and/or filed the Security Documents (including without limitation the Ship Mortgage) required by
this Indenture and the Security Documents to perfect the Security Interest in such Vessel and such
Related Assets as required by this Indenture on or prior to the 15th calendar day following the day
on which such Released Monies were released as described above, then, on or before such 15th
calendar day, the Company shall return to the Collateral Trustee an amount equal to the full amount
of such Released Monies that were released in connection with such proposed Qualified Vessel
delivery to be re-deposited into the Collateral Account. Any amount returned to the Collateral
Trustee pursuant to the immediately preceding sentence shall immediately be subject to the Security
Interest and Lien granted pursuant to this Indenture and the Security Documents.







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SECTION 12.03. Powers Exercisable Notwithstanding Event of Default.




          In case of a Default or an Event of Default shall have occurred and shall be continuing, the
Trustee or the Collateral Trustee, as the case may be, while in possession of the Collateral
(including the cash, Cash Equivalents, securities and other personal property held by, or required
to be deposited or pledged with, the Collateral Trustee hereunder or under the Security Documents),
may do any of the things enumerated in Section 12.02 at the request of the Company and/or the
applicable Mortgaged Vessel Guarantor, if the Holders of a majority in aggregate principal amount
of the Notes outstanding, by appropriate action of such Holders, shall consent to such action, in
which event any certificate filed under any of such Sections shall omit the statement to the effect
that no Default or Event of Default has occurred and is continuing.



SECTION 12.04. Powers Exercisable by Trustee or Receiver.




          In case the Collateral (other than any cash, Cash Equivalents, securities and other personal
property held by, or required to be deposited or pledged with, the Collateral Trustee hereunder or
under the Security Documents) shall be in the possession of a receiver or trustee lawfully
appointed, the powers hereinbefore in this Article Twelve conferred upon the Co-Issuers and the
Mortgaged Vessel Guarantors with respect to the withdrawal or application of Trust Monies may be
exercised by such receiver or trustee, in which case a certificate signed by such receiver or
trustee shall be deemed the equivalent of any Officers’ Certificate required by this Article
Twelve. If the Collateral Trustee shall be in possession of any of the Collateral hereunder or
under any of the Security Documents, such powers may be exercised by the Collateral Trustee, as
directed by the Trustee, in its discretion.



SECTION 12.05. Disposition of Notes Retired.




          All Notes received by the Trustee and for whose purchase Trust Monies are applied under this
Article Twelve, if not otherwise cancelled, shall be promptly delivered to the Trustee for
cancellation and destruction unless the Trustee shall be otherwise directed by the Co-Issuers.
Upon destruction of any Notes, the Trustee shall issue a certificate of destruction to the
Co-Issuers upon its request.



SECTION 12.06. Investment of Trust Monies.




          (a) The Co-Issuers hereby irrevocably grant a security interest in and pledge, assign and set
over to the Collateral Trustee on behalf of the Trustee for the benefit of the Holders all of the
Co-Issuers’ right, title and interest in the Trust Monies, and all property now or hereafter placed
or deposited in, or delivered to the Collateral Trustee for placement or deposit in, the Collateral
Account held by (or otherwise maintained in the name of) the Collateral Trustee pursuant to this
Section 12.06, and, subject to Section 12.01, all distributions relating thereto and proceeds
thereof, in order to secure all obligations and indebtedness of the Co-Issuers under the Notes and
any other obligation, now or hereafter arising, of every kind and nature, owed by the Co-Issuers
under this Indenture to the holders of the Notes or to the Collateral Trustee on behalf of the
Trustee for the benefit of the Holders. The Co-Issuers shall take all actions and shall direct the
Collateral Trustee to take all actions necessary on its part to ensure the continuance of a
security interest in the Trust Monies in favor of the Collateral Trustee on behalf of the Trustee
for the benefit of the Holders in order to secure all such obligations and indebtedness. The
Co-Issuers shall not grant a security interest, encumbrance, lien or other claim, direct or
indirect, in the Co-Issuers’ right, title or interest in the Collateral Account or any other
Collateral which is Trust Monies.




          (b) The Collateral Trustee shall (A) maintain sole dominion and control over funds in the
Collateral Account and all other Collateral which is Trust Monies for the benefit of the Collateral
Trustee on behalf of the Trustee for the benefit of the Holders, (B) take all steps necessary to
cause the






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Collateral Trustee to enjoy a continuous perfected security interest under applicable
statutory or case law or regulations in such Trust Monies and (C) maintain such Trust Monies free
and clear of all liens, security interests, safekeeping or other charges, demands and claims
against the Collateral Trustee of any nature now or hereafter existing in favor of anyone other
than the Collateral Trustee.




          (c) All Trust Monies deposited or held in the Collateral Account at any time shall be invested
by the Collateral Trustee in Cash Equivalents in accordance with the Co-Issuers’ written
instructions in the form of an Officers’ Certificate to the Collateral Trustee. Any such written
instruction shall specify the particular investment to be made and shall state that such investment
is authorized to be made hereby.




          Each of the Trustee and the Collateral Trustee shall not be liable or responsible for any loss
resulting from such investments or sales except only for its own fraud, negligent (or, in the case
of the Collateral Trustee, grossly negligent) action, its own negligent (or, in the case of the
Collateral Trustee, grossly negligent) failure to act or its own willful misconduct in complying
with this Section 12.06.




ARTICLE THIRTEEN




MISCELLANEOUS


SECTION 13.01. Trust Indenture Act Controls.




          If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required or deemed to be included in this Indenture by the Trust Indenture Act, such required or
deemed provision of the Trust Indenture Act shall control.



SECTION 13.02. Notices.




          Any notices or other communications required or permitted hereunder shall be in writing, and
shall be sufficiently given if made by hand delivery, by nationally recognized overnight courier
service, by telecopier or registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:



if to a Co-Issuer or a Guarantor:



c/o Navios Maritime Acquisition Corporation

85 Akti Miaouli Street

Piraeus 185 38, Greece

Attn: Secretary

Telephone: +30-210-4595000



with a copy to:



Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004

Attn: Stuart Gelfond

Telephone: (212) 859-8000

Facsimile: (212) 859-4000






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if to the Trustee or Collateral Trustee:


Wells Fargo Bank, National Association

Corporate Trust Services

45 Broadway, 14th Floor

New York, New York 10006

Telephone: (212) 515-5244

Facsimile: (212) 515-1589




          Each of the Co-Issuers, each Guarantor and the Trustee by written notice to each other such
Person may designate additional or different addresses for notices to such Person. Any notice or
communication to the Co-Issuers and the Trustee, shall be deemed to have been given or made as of
the date so delivered if personally delivered; when replied to; when receipt is acknowledged, if
telecopied; five (5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have been given until
actually received by the addressee); and next Business Day if by nationally recognized overnight
courier service.




          Any notice or communication mailed to a Holder shall be mailed to him by first class mail or
other equivalent means at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed.




          Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.




          Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance on such waiver.




          In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.



SECTION 13.03. Communications by Holders with Other Holders.




          Holders may communicate pursuant to Trust Indenture Act § 312(b) with other Holders with
respect to their rights under this Indenture, the Notes or the Note Guarantees. The Co-Issuers,
the Trustee, the Registrar and any other Person shall have the protection of Trust Indenture Act
§ 312(c).



SECTION 13.04. Certificate and Opinion as to Conditions Precedent.




          Upon any request or application by the Co-Issuers to the Trustee or the Collateral Trustee to
take any action under this Indenture, the Co-Issuers shall furnish to the Trustee (unless otherwise
agreed by the Trustee or the Collateral Trustee, as the case may be):





     (1) an Officers’ Certificate, in form and substance reasonably satisfactory to the
Trustee, stating that, in the opinion of the signers, all conditions precedent to be
performed or effected by the Co-Issuers, if any, provided for in this Indenture relating to
the proposed action have been complied with; and




     (2) an Opinion of Counsel stating that, in the opinion of such counsel (who may rely
upon Officers’ Certificates as to matters of fact), all such conditions precedent have been




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satisfied; provided, however, that such opinion shall not be required in connection with the
initial issuance of the Notes hereunder.


SECTION 13.05. Statements Required in Certificate or Opinion.




          Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture, other than the Officers’ Certificate required by Section 4.06, shall
include, to the extent required by the Trust Indenture Act or requested by the Trustee or the
Collateral Trustee:





     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with or satisfied; and




     (4) a statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been satisfied or complied with; provided, however, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or
certificates of public officials.


SECTION 13.06. Rules by Paying Agent or Registrar.




          The Paying Agent or Registrar may make reasonable rules and set reasonable requirements for
their functions.



SECTION 13.07. Legal Holidays.




          If a payment date is not a Business Day, payment may be made on the next succeeding day that
is a Business Day without the accrual of additional interest in the intervening period.



SECTION 13.08. GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION.






          THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. EACH OF THE CO-ISSUERS, THE TRUSTEE AND THE COLLATERAL TRUSTEE HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.




          Any legal suit, action or proceeding arising out of or based upon this Indenture, the Notes,
the Note Guarantees or the transactions contemplated hereby may be instituted in the federal courts
of the United States of America located in the City of New York or the courts of the State of New
York in each case located in the City of New York (collectively, the “Specified Courts”), and each
party






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irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth in Section 13.02
shall be effective service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any suit, action or other proceeding
has been brought in an inconvenient forum.



SECTION 13.09. No Adverse Interpretation of Other Agreements.




          This Indenture may not be used to interpret another indenture, loan or debt agreement of any
of the Co-Issuers or any of their Subsidiaries. Any such indenture, loan or debt agreement may not
be used to interpret this Indenture.



SECTION 13.10. No Personal Liability of Directors, Officers, Employees and
Stockholders.




          No past, future or present director, Officer, employee, incorporator, member, manager, agent
or shareholder of a Co-Issuer or any Guarantor, as such, shall have any liability for any
obligations of the Co-Issuers or any Guarantors under the Notes, this Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such liability to the fullest
extent permitted by law. Such waiver and release are part of the consideration for issuance of the
Notes and the Note Guarantees.



SECTION 13.11. Successors.




          All agreements of the Co-Issuers and the Guarantors in this Indenture, the Notes and the Note
Guarantees shall bind their respective successors. All agreements of the Trustee in this Indenture
shall bind its successor.



SECTION 13.12. Duplicate Originals.




          All parties may sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent the same agreement.



SECTION 13.13. Severability.




          To the extent permitted by applicable law, in case any one or more of the provisions in this
Indenture, in the Notes or in the Note Guarantees shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be affected or impaired
thereby, it being intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.



SECTION 13.14. Force Majeure.




          In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services, it being understood that






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the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.



SECTION 13.15. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.




          (a) The Co-Issuers and each Guarantor hereby irrevocably consent and agree to the service of
any and all legal process, summons, notices and documents in any such action, suit or proceeding
brought against them with respect to their obligations, liabilities or any other matter arising out
of or in connection with this Indenture, by serving a copy thereof upon any employee of any of the
Co-Issuers or any Guarantor (in such capacity, the “Co-Issuer Process Agent”) at any business
location that the Co-Issuers or any Guarantor may maintain from time to time in the United States
including, without limitation, at the offices of Navios Corporation located at 825 Third Avenue,
34th Floor, New York, NY 10022.




          (b) If at any time neither the Co-Issuers nor any Guarantor maintains a bona fide business
location in the State of New York, then the Co-Issuers and the Guarantors shall promptly (and in
any event within 10 days) irrevocably designate, appoint and empower CT Corporation System, with
offices currently at 111 Eighth Avenue, New York, New York 10011 (or another third party corporate
service provider of national standing), as their designee, appointee and agent to receive, accept
and acknowledge for and on their behalf service of any and all legal process, summons, notices and
documents that may be served in any action, suit or proceeding brought against them in any such
United States or state court located in the County of New York with respect to their obligations,
liabilities or any other matter arising out of or in connection with this Indenture and that may be
made on such designee, appointee and agent in accordance with legal procedures prescribed for such
courts (the “Third Party Process Agent”; each of the Co-Issuer Process Agent or the Third Party
Process Agent, a “Process Agent”) and pay all fees and expenses required by the Third Party Process
Agent in connection therewith. If for any reason such Third Party Process Agent hereunder shall
cease to be available to act as such, each of the Co-Issuers and the Guarantors agrees to designate
a new Third Party Process Agent in the County of New York on the terms and for the purposes of this
Section 13.15.




          (c) Each of the Co-Issuers and the Guarantors further hereby irrevocably consents and agrees
to the service of any and all legal process, summons, notices and documents in any such action,
suit or proceeding against them by (i) serving a copy thereof upon any of the relevant Process
Agents specified in clauses (a) through (b) above, or (ii) or by mailing copies thereof by
registered or certified air mail, postage prepaid, to the Co-Issuers, at its address specified in
or designated pursuant to this Indenture. Each of the Co-Issuers and the Guarantors agrees that
the failure of any Process Agent, to give any notice of such service to it shall not impair or
affect in any way the validity of such service or any judgment rendered in any action or proceeding
based thereon.




          (d) Each of the Co-Issuers and each Guarantor agree that a final judgment in any such suit,
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing herein shall in any way be deemed to
limit the ability of the Trustee or any Holder to serve any such legal process, summons, notices
and documents in any other manner permitted by applicable law or to obtain jurisdiction over the
Co-Issuers or the Guarantors or bring actions, suits or proceedings against them in such other
jurisdictions, and in such manner, as may be permitted by applicable law.




          (e) The provisions of this Section 13.15 shall survive any termination of this Indenture, in
whole or in part.







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          (f) Each of the Co-Issuers and each of the Guarantors hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in
connection with this Agreement brought in the United States federal courts located in the County of
New York or the courts of the State of New York located in the County of New York and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum. The Co-Issuers and the Guarantors, and their obligations under this Indenture,
the Notes and the Note Guarantees (and the Notations of Guarantee), are subject to civil and
commercial law and to suit and none of the Co-Issuers, the Guarantors or any of their respective
properties, assets or revenues have any right of immunity, on the grounds of sovereignty, from any
legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of any of any Greek, Marshall
Islands, Hong Kong, British Virgin Islands, Cayman Islands, New York State or U.S. federal court,
as the case may be, from service of process, attachment upon or prior to judgment, or attachment in
aid of execution of judgment, or from execution or enforcement of a judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of a judgment, in any
such court, with respect to its obligations or liabilities or any other matter under or arising out
of or in connection with this Indenture, the Notes and the Note Guarantees (and the Notations of
Guarantee); and, to the extent that the Co-Issuers, any Guarantor or any of their respective
properties, assets or revenues may have or may hereafter become entitled to any such right of
immunity in any such court in which proceedings may at any time be commenced, each of the
Co-Issuers and the Guarantors waived or will waive such right to the extent permitted by law and
has consented to such relief and enforcement as provided in this Indenture, the Notes and the Note
Guarantees (and the Notations of Guarantee).



SECTION 13.16. Currency of Account; Conversion of Currency; Foreign Exchange Restrictions.




          (a) U.S. dollars are the sole currency of account and payment for all sums payable by the
Co-Issuers and the Guarantors under or in connection with the Notes, the Note Guarantees or this
Indenture, including damages related thereto. Any amount received or recovered in a currency other
than U.S. dollars by a Holder (whether as a result of, or of the enforcement of, a judgment or
order of a court of any jurisdiction, in the winding-up or dissolution of the Co-Issuers or
otherwise) in respect of any sum expressed to be due to it from the Co-Issuers shall only
constitute a discharge to the Co-Issuers to the extent of the U.S. dollar amount which the
recipient is able to purchase with the amount so received or recovered in that other currency on
the date of that receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so). If that U.S. dollar amount is less
than the U.S. dollar amount expressed to be due to the recipient under the Notes, the Co-Issuers
shall indemnify it against any loss sustained by it as a result as set forth in Section 13.16(b).
In any event, the Co-Issuers and the Guarantors shall indemnify the recipient against the cost of
making any such purchase. For the purposes of this Section 13.16, it shall be sufficient for the
Holder to certify in a satisfactory manner (indicating sources of information used) that it would
have suffered a loss had an actual purchase of U.S. dollars been made with the amount so received
in that other currency on the date of receipt or recovery (or, if a purchase of U.S. dollars on
such date had not been practicable, on the first date on which it would have been practicable, it
being required that the need for a change of date be certified in the manner mentioned above). The
indemnities set forth in this Section 13.16 constitute separate and independent obligations from
other obligations of the Co-Issuers and the Guarantors, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted by any Holder and
shall continue in full force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any sum due under the Notes.







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          (b) The Co-Issuers and the Guarantors, jointly and severally, covenant and agree that the
following provisions shall apply to conversion of currency in the case of the Notes, the Note
Guarantees and this Indenture:





	 	(1)	(A)    	If for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes necessary to convert into
a currency (the “Judgment Currency”) an amount due in any other currency (the
“Base Currency”), then the conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on which the judgment is given or
the order of enforcement is made, as the case may be (unless a court shall
otherwise determine).
	 
	 	 	(B)    	If there is a change in the rate of exchange
prevailing between the Business Day before the day on which the
judgment is given or an order of enforcement is made, as the case may
be (or such other date as a court shall determine), and the date of
receipt of the amount due, the Co-Issuers and the Guarantors shall pay
such additional (or, as the case may be, such lesser) amount, if any,
as may be necessary so that the amount paid in the Judgment Currency
when converted at the rate of exchange prevailing on the date of
receipt shall produce the amount in the Base Currency originally due.






     (2) In the event of the winding-up of any Co-Issuer or any Guarantor at any time while
any amount or damages owing under the Notes, the Note Guarantees and this Indenture, or any
judgment or order rendered in respect thereof, shall remain outstanding, the Co-Issuers and
the Guarantors shall indemnify and hold the Holders and the Trustee harmless against any
deficiency arising or resulting from any variation in rates of exchange between (i) the date
as of which the U.S. Dollar Equivalent of the amount due or contingently due under the
Notes, the Note Guarantees and this Indenture (other than under this subsection (b)(2)) is
calculated for the purposes of such winding-up and (ii) the final date for the filing of
proofs of claim in such winding-up. For the purpose of this subsection (b)(2), the final
date for the filing of proofs of claim in the winding-up of any Co-Issuer or any Guarantor
shall be the date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at which liabilities of
such Co-Issuer or such Guarantor may be ascertained for such winding-up prior to payment by
the liquidator or otherwise in respect thereto.



          (c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2) of this Section 13.16
shall constitute separate and independent obligations from the other obligations of the Co-Issuers
and the Guarantors under this Indenture, shall give rise to separate and independent causes of
action against the Co-Issuers and the Guarantors, shall apply irrespective of any waiver or
extension granted by any Holder or the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment or order or the filing of any proof
of claim in the winding-up of any Co-Issuer or any Guarantor for a liquidated sum in respect of
amounts due hereunder (other than under subsection (b)(2) above) or under any such judgment or
order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be
required by any Co-Issuer or any Guarantor or the liquidator or otherwise or any of them. In the
case of subsection (b)(2) above, the amount of such deficiency shall not be deemed to be reduced by
any variation in rates of exchange occurring between the said final date and the date of any
liquidating distribution.







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          (d) The term “rate of exchange” shall mean the rate of exchange quoted by Reuters at 10:00
a.m. (New York time) for spot purchases of the Base Currency with the Judgment Currency other than
the Base Currency referred to in subsections (b)(1) and (b)(2) above and includes any premiums and
costs of exchange payable.



SECTION 13.17. Patriot Act.



The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the
Trustee, like all financial institutions and in order to help fight the funding of terrorism and
money laundering, is required to obtain, verify, and record information that identifies each person
or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with such information as it may request
in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.






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SIGNATURES




          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the date first written above.




	 	 	 	 	 
	 	NAVIOS MARITIME ACQUISITION

     CORPORATION,

     as Co-Issuer

 	 
	 	By:  	/s/
Leonidas Korres	 
	 	 	Name:  	Leonidas Korres	 
	 	 	Title:  	Chief Financial Officer	 
	 







 









 








	 	 	 	 	 
	 	NAVIOS ACQUISITION FINANCE (US) INC.,

     as Co-Issuer

 	 
	 	By:  	/s/
Vasiliki Papaefthymiou	 
	 	 	Name:  	Vasiliki Papaefthymiou	 
	 	 	Title:  	President/Secretary	 
	 




 









 








	 	 	 	 	 
	 	GUARANTORS:



SHINYO DREAM LIMITED

SHINYO KANNIKA LIMITED

SHINYO LOYALTY LIMITED

SHINYO NAVIGATOR LIMITED

SHINYO OCEAN LIMITED

SHINYO SAOWALAK LIMITED,

 	 
	 	By:  	/s/
Alexandros Laios	 
	 	 	Name:  	Alexandros Laios	 
	 	 	Title:  	Director	 
	 
	 	THERA SHIPPING CORPORATION

TINOS SHIPPING CORPORATION,

 	 
	 	By:  	/s/
George Achniotis	 
	 	 	Name:  	George Achniotis	 
	 	 	Title:  	President/Director	 
	 
	 	AEGEAN SEA MARITIME HOLDINGS INC.

 	 
	 	By:  	/s/
George Achniotis	 
	 	 	Name:  	George Achniotis	 
	 	 	Title:  	President/Director	 
	 



 









 








	 	 	 	 	 
	 	AMORGOS SHIPPING CORPORATION

ANDROS SHIPPING CORPORATION

ANTIPAROS SHIPPING CORPORATION

CRETE SHIPPING CORPORATION

IKARIA SHIPPING CORPORATION

IOS SHIPPING CORPORATION

KOS SHIPPING CORPORATION

MYTILENE SHIPPING CORPORATION

RHODES SHIPPING CORPORATION

SIFNOS SHIPPING CORPORATION

SKIATHOS SHIPPING CORPORATION

SKOPELOS SHIPPING CORPORATION

SYROS SHIPPING CORPORATION,

 	 
	 	By:  	/s/
George Achniotis	 
	 	 	Name:  	George Achniotis	 
	 	 	Title:  	President / Director	 
	 
	 	SHINYO KIERAN LIMITED

 	 
	 	By:  	/s/ Alexandros Laios	 
	 	 	Name:  	Alexandros Laios	 
	 	 	Title:  	Director	 
	 







 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL

     ASSOCIATION,

     as Trustee

 	 
	 	By:  	/s/ Martin Reed	 
	 	 	Name:  	Martin Reed	 
	 	 	Title:  	Vice President	 
	 
	 	WELLS FARGO BANK, NATIONAL

     ASSOCIATION,

     as Collateral Trustee

 	 
	 	By:  	/s/ Martin Reed	 
	 	 	Name:  	Martin Reed 	 
	 	 	Title:  	Vice President	 
	 




 









 





EXHIBIT A



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]



[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]







F-1









 








NAVIOS MARITIME ACQUISITION CORPORATION

NAVIOS ACQUISITION FINANCE (US) INC.




85⁄8% First Priority Ship Mortgage Notes due 2017



CUSIP No.
ISIN No.





	 	 	 

	No.

	 	$ 






          NAVIOS MARITIME ACQUISITION CORPORATION, a Marshall Islands corporation, and NAVIOS
ACQUISITION FINANCE (US) INC., a Delaware corporation, as co-issuers, (the “Co-Issuers”), for value
received, jointly and severally, promise to pay to ____________ or its registered assigns, the
principal sum of                     U.S. dollars [or such other amount as is provided in a schedule
attached hereto]1 on November 1, 2017.




          Interest Payment Dates: May 1 and November 1, commencing May 1, 2011.




          Record Dates: April 15 and October 15.




          Reference is made to the further provisions of this Note contained herein, which shall for all
purposes have the same effect as if set forth at this place.






 




			
	1	 	This language should be included only if
the Note is issued in global form.





F-2









 





          IN WITNESS WHEREOF, each Co-Issuer has caused this Note to be signed manually or by facsimile
by its duly authorized Officer.



Dated:




	 	 	 	 	 
	 	NAVIOS MARITIME ACQUISITION CORPORATION,

     as Co-Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	NAVIOS ACQUISITION FINANCE (US) INC.,

     as Co-Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



F-3









 








FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          This is one of the 85⁄8% First Priority Ship Mortgage Notes due 2017 described in the
within-mentioned Indenture.



Dated:




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL

     ASSOCIATION,

     as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




F-4









 





(Reverse of Note)




85⁄8% First Priority Ship Mortgage Notes due 2017



          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




          SECTION 1. Interest. Navios Maritime Acquisition Corporation, a Marshall Islands
corporation, and Navios Acquisition Finance (US) Inc., a Delaware Corporation, as co-issuers, (the
"Co-Issuers”), jointly and severally promise to pay interest (including Additional Interest, if
applicable) on the principal amount of this Note at 85⁄8% per annum from [October 21,
2010]2, until maturity. The Co-Issuers shall pay interest semi-annually in
arrears on May 1 and November 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an “Interest Payment Date”), commencing [May 1,
2011]3. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of original issuance. The
Co-Issuers shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand to the extent
lawful at the interest rate applicable to the Notes; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest, if any (in each case without regard to any applicable grace periods) from time
to time on demand at the same rate to the extent lawful. Interest shall be computed on the basis
of a 360-day year of twelve 30-day months.




          SECTION 2. Method of Payment. The Co-Issuers shall pay interest and Additional
Interest, if any, on the Notes to the Persons who are registered Holders at the close of business
on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are
canceled after such Record Date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be issued in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Co-Issuers shall
pay principal, premium, if any, and interest on the Notes in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private debts
(“U.S. Legal Tender”). Principal, premium, if any, interest and Additional Interest, if any, on
the Notes shall be payable at the office or agency of the Co-Issuers maintained in the United
States for such purpose except that, at the option of the Co-Issuers, the payment of interest and
Additional Interest, if any, may be made by check mailed to the Holders at their respective
addresses set forth in the register of Holders; provided that for Holders owning at least $100,000
aggregate principal amount of Notes that have given wire transfer instructions to the Co-Issuers at
least ten (10) Business Days prior to the applicable payment date, the Co-Issuers shall make all
payments of principal, interest, premium and Additional Interest, if any, by wire transfer of
immediately available funds to the accounts specified by the Holders thereof. Until otherwise
designated by the Co-Issuers, the Co-Issuers’ office or agency in the United States shall be the
office of the Trustee maintained for such purpose.






 




			
	2	 	With respect to Notes issued on the Issue
Date.
	 
	3	 	With respect to Notes issued on the Issue
Date.





F-5









 





          SECTION 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National
Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Co-Issuers may change any Paying Agent or Registrar without prior notice to any Holder. Except as
provided in the Indenture, the Co-Issuers or any of their Subsidiaries may act in any such
capacity.




          SECTION 4. Indenture. The Co-Issuers issued the Notes under an Indenture dated as of
October 21, 2010 (the “Indenture”) by and among the Co-Issuers, the Guarantors (as defined
therein), Wells Fargo Bank, National Association, as Collateral Trustee, and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “Trust
Indenture Act”). The Notes are subject to all such terms, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling.




          SECTION 5. Optional Redemption.




          (a) On or after November 1, 2013, the Co-Issuers may redeem all or a part of the Notes upon
not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages
of principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if
any, on the Notes redeemed, to the applicable Redemption Date, if redeemed during the twelve-month
period beginning on November 1 of the years indicated below, subject to the rights of Holders on
the relevant Record Date to receive interest on the relevant Interest Payment Date:




	 	 	 	 	 
	Year	 	Percentage
	2013
	 	 	104.313	%
	2014
	 	 	102.156	%
	2015 and thereafter
	 	 	100.000	%






          (b) Prior to November 1, 2013, the Co-Issuers may, at their option, redeem all or a part of
the Notes upon not less than 30 nor more than 60 days’ notice at a redemption price equal to the
sum of:




               (i) 100% of the principal amount of the Notes to be redeemed, plus



               (ii) the Applicable Premium, plus


accrued and unpaid interest and Additional Interest, if any, on the Notes redeemed, to the
applicable Redemption Date, subject to the right of Holders on the relevant Record Date to receive
interest due on the relevant interest payment date (a “Make-Whole Redemption”).




          SECTION 6. Redemption With Proceeds of Equity Offerings. At any time prior to
November 1, 2013, the Co-Issuers may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture (including any Additional Notes) at a
Redemption Price of 108.625% of the principal amount, plus accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date, with the net cash proceeds of one or more
Equity Offerings; provided that:





     (1) at least 65% of the aggregate principal amount of Notes issued under the Indenture
(excluding Notes held by the Co-Issuers and the Restricted Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and



F-6









 






     (2) such redemption occurs not more than 180 days after the date of the closing of the
relevant such Equity Offering.



          SECTION 7. Redemption for Changes in Withholding Tax. The Co-Issuers may, at their
option, redeem all, but not less than all, of the Notes then outstanding at a redemption price
equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest and Additional
Amounts, if any, thereon to the Redemption Date, if the Co-Issuers have become or would become
obligated to pay, on the next date on which any amount would be payable with respect to such Notes,
any Additional Amounts as a result of any change in law (including any regulations promulgated
thereunder) or in the official interpretation or administration of law, if such change is announced
and becomes effective on or after the Issue Date and the Co-Issuers determine in good faith that
such obligation cannot be avoided (including, without limitation, by changing the jurisdiction from
which or through which payment is made) by the use of reasonable measures (not requiring material
cost) available to the Co-Issuers and the Guarantors.




          Notice of any such redemption must be given within 60 days of the earlier of the announcement
and the effectiveness of any such amendment or change referred to in the preceding paragraph. At
the time such notice of redemption is given, such obligation to pay such Additional Amounts must
remain in effect. Immediately prior to the mailing of any notice of redemption described above,
the Co-Issuers shall deliver to the Trustee (i) an Officers’ Certificate stating that the
Co-Issuers are entitled to elect to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to the right of the Co-Issuers so to elect to redeem have
occurred and (ii) if requested by the Trustee, an Opinion of Counsel qualified under the laws of
the relevant jurisdiction to the effect that the Co-Issuers or the applicable Guarantor or such
successor Person, as the case may be, has or will become obligated to pay such Additional Amounts
as a result of such amendment or change.




          SECTION 8. Selection and Notice of Redemption. Notes in denominations larger than
$2,000 may be redeemed in part; provided that Notes shall be redeemed only in integral multiples of
$1,000 unless all Notes held by a Holder are to be redeemed. Notice of redemption shall be mailed
by first class mail at least 30 days but not more than 60 days before the Redemption Date to each
Holder whose Notes are to be redeemed at its registered address, except that redemption notices may
be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of the Indenture. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note shall be issued in the name of the Holder upon cancellation
of the original Note. Notes called for redemption become due on the date fixed for redemption. On
and after the Redemption Date, interest and Additional Interest, if any, cease to accrue on Notes
or portions thereof called for redemption, unless the Co-Issuers default in the payment of the
Redemption Price.




          SECTION 9. Mandatory Redemption. The Co-Issuers shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes (it being understood that
the foregoing shall not limit Section 10 below).




          SECTION 10. Repurchase at Option of Holder.




          (a) Upon the occurrence of a Change of Control, and subject to certain conditions set forth in
the Indenture, the Co-Issuers shall be required to offer to purchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of the outstanding Notes at a purchase
price equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest and
Additional Interest,






F-7









 







if any, thereon to the date of repurchase, subject to the rights of Holders on the relevant
Record Date to receive interest due on the relevant interest payment date.




          (b) The Co-Issuers are, subject to certain conditions and exceptions, obligated to make an
offer to purchase Notes and certain other pari passu Indebtedness at 100% of their principal
amount, plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of
repurchase, with certain Excess Proceeds, Excess Collateral Proceeds and Excess Loss Proceeds, in
each case in accordance with the Indenture.




          SECTION 11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Co-Issuers may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture. The Co-Issuers and the Registrar are
not required to transfer or exchange any Note selected for redemption, except the unredeemed
portion of any Note being redeemed in part. Also, the Co-Issuers and the Registrar are not
required to transfer or exchange any Notes for a period of 15 days before the mailing of a notice
of redemption of Notes to be redeemed.




          SECTION 12. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




          SECTION 13. Amendment, Supplement and Waiver. The Indenture, the Security Documents
and the Notes may be amended, supplemented or waived as set forth in, and subject to the terms and
conditions of, the Indenture.




          SECTION 14. Defaults and Remedies. The Events of Default relating to the Notes are
set forth in Section 6.01 of the Indenture. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes generally
may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or insolvency as set forth in
the Indenture, all outstanding Notes shall become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate
principal amount of the Notes then outstanding, by notice to the Trustee, may on behalf of the
Holders of all of the Notes rescind an acceleration or waive any existing Default and its
consequences under the Indenture except a continuing Default in the payment of interest on, or the
principal of, or the premium or Additional Interest on, the Notes, subject to certain conditions
being met. The Co-Issuers shall deliver to the trustee a statement specifying any Default or Event
of Default within 30 days of becoming aware thereof.




          SECTION 15. Additional Amounts. All payments made by the Co-Issuers under or with
respect to this Note or by a Guarantor under or with respect to its Note Guarantee shall be made
free and clear of and without withholding or deduction for or on account of any present or future
Taxes, to the extent provided in Section 4.20 of the Indenture.




          SECTION 16. Security Documents. In order to secure the due and punctual payment of
the principal of, premium, if any, and interest on the Notes and all other amounts payable by the
Co-Issuers and the Guarantors under the Indenture, the Notes and the Guarantees when and as the
same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes, the Guarantees and the Indenture, each of the Mortgaged Vessel Guarantors have
granted security




F-8









 







interests in and Liens on the Collateral owned by it to the Collateral Trustee on behalf of
the Trustee for the benefit of the Holders pursuant to the Indenture and the Security Documents.
The Notes will be secured by Liens and security interests in the Collateral that are subject only
to Permitted Liens.




          Each Holder, by accepting a Note, consents and agrees to all of the terms and provisions of
the Security Documents, as the same may be amended from time to time pursuant to the respective
provisions thereof and of the Indenture.




          The Collateral Trustee, the Trustee and each Holder acknowledge that a release of any of the
Collateral or Lien strictly in accordance with the terms and provisions of any of the Security
Documents and the terms and provisions of the Indenture will not be deemed for any purpose to be an
impairment of the security under the Indenture.




          SECTION 17. No Recourse Against Others. No past, future or present director, Officer,
employee, incorporator, member, manager, agent or shareholder of any Co-Issuer or any Guarantor, as
such, shall have any liability for any obligations of any Co-Issuer or any Guarantors under the
Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason
of, such obligations or their creation. The Holder by accepting this Note and the Note Guarantees
waives and releases all such liability. Such waiver and release are part of the consideration for
issuance of this Note and the Note Guarantees.




          SECTION 18. Note Guarantees. This Note shall be entitled to the benefits of certain
Note Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and obligations thereunder of
the Guarantors, the Trustee and the Holders.




          SECTION 19. Trustee Dealings with the Co-Issuers. Subject to certain terms set forth
in the Indenture, the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Co-Issuers, the Guarantors their Subsidiaries or
their respective Affiliates as if it were not the Trustee.




          SECTION 20. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




          SECTION 21. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




          SECTION 22. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. Pursuant to, but subject to the exceptions in, the Registration Rights
Agreement, the Co-Issuers and the Guarantors shall be obligated to use their commercially
reasonable efforts to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for a 85⁄8% First Priority Ship Mortgage Note due 2017 of the
Co-Issuers which shall have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects to this Note (except that such Note shall not be
entitled to Additional Interest and shall not contain terms with respect to transfer restrictions).
The Holders shall be entitled to receive certain Additional Interest in the event such exchange
offer is not consummated or the Notes are not offered for resale and



F-9









 






upon certain other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.4




          SECTION 23. 1CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Co-Issuers have caused CUSIP and ISIN
numbers to be printed on the Notes and the Trustee may use CUSIP or ISIN numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.




          SECTION 23. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.




          The Co-Issuers shall furnish to any Holder upon written request and without charge a copy of
the Indenture.






 




			
	4	 	This Section not to appear on Exchange
Securities or Additional Notes unless required by the terms of such Additional
Notes.





F-10









 





ASSIGNMENT FORM



I or we assign and transfer this Note to




 




(Print or type name, address and zip code of assignee or transferee)



(Insert Social Security or other identifying number of assignee or transferee)



and irrevocably appoint
______________________________
agent to transfer this Note on the
books of the Co-Issuers. The agent may substitute another to act for him.




	 	 	 	 	 

	Dated:                                         

	 	Signed:
	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as name appears on the other side of this Note)






	 	 	 

	Signature Guarantee:

	 	 
	 

	 	 
	 

	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee)






          In connection with any transfer of this Note occurring prior to the date which is the date
following the second anniversary of the original issuance of this Note, the undersigned confirms
that it has not utilized any general solicitation or general advertising in connection with the
transfer and is making the transfer pursuant to one of the following:




[Check One]




	 	 	 

	(1) o

	 	to the Co-Issuers or a subsidiary thereof; or
	 
	 	 
	(2) o

	 	to a person who the transferor reasonably believes is a “qualified institutional buyer”
pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the
“Securities Act”); or
	 
	 	 
	(3) o

	 	outside the United States to a non-“U.S. person” as defined in Rule 902 of Regulation S
under the Securities Act in compliance with Rule 904 of Regulation S under the Securities Act;
or
	 
	 	 
	(4) o

	 	pursuant to the exemption from registration provided by Rule 144 under the Securities Act
or pursuant to another exemption available under the Securities Act; or
	 
	 	 
	(5) o

	 	pursuant to an effective registration statement under the Securities Act.





and unless the box below is checked, the undersigned confirms that such Note is not being
transferred to an “affiliate” of the Co-Issuers as defined in Rule 144 under the Securities Act (an
“Affiliate”):





	 	o	 	transferee is an Affiliate of the Co-Issuers.




F-11









 











          Unless one of the foregoing items (1) through (5) is checked, the Trustee shall refuse to
register any of the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided, however, that if item (3) or (4) is checked, the Co-Issuers or
the Trustee may require, prior to registering any such transfer of the Notes, in their sole
discretion, such written legal opinions, certifications (including an investment letter in the case
of box (3)) and other information as the Trustee or the Co-Issuers has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.




          If none of the foregoing items (1) through (5) are checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the Holder hereof unless
and until the conditions to any such transfer of registration set forth herein and in Section 2.16
of the Indenture shall have been satisfied.




	 	 	 	 	 

	Dated:                                         

	 	Signed:
	 	 
	 

	 	 	 	 
	 

	 	 	 	(Sign exactly as name appears on the other side of this Note)






	 	 	 

	Signature Guarantee:

	 	 
	 

	 	 
	 

	 	Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)





TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




          The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Co-Issuers as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.




	 	 	 	 	 

	Dated:                                         

	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	NOTICE:     To be executed by an executive officer







F-12











 





OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Co-Issuers pursuant to Section 4.09,
Section 4.13(I), Section 4.13(II) or Section 4.21 of the Indenture, check the appropriate box:




	 	 	 

	Section 4.09

	 	o
	 
	 	 
	Section 4.13(I)

	 	o
	 
	 	 
	Section 4.13(II)

	 	o
	 
	 	 
	Section 4.21

	 	o






          If you want to elect to have only part of this Note purchased by the Co-Issuers pursuant to
Section 4.09, Section 4.13(I), Section 4.13(II) or Section 4.21 of the Indenture, state the amount
(in denominations of $2,000 and integral multiples of $1,000 in excess thereof): $                    




	 	 	 	 	 	 	 	 	 	 	 

	Dated:

	 	 	 	 	 	Signed:	 	 	 	 
	 

	 	 

	 	 
	 	 	 	 

(Sign exactly as name appears on the other
side of this Note)
	 	 
	 
	Signature Guarantee:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)	 	 






F-13









 






SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE5




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an
interest in this Global Note, have been made:




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of decrease	 	Amount of increase	 	of	 	Signature of
	 	 	in	 	in	 	this Global Note	 	authorized signa-
	 	 	Principal Amount	 	Principal Amount	 	following such de-	 	tory
	 	 	of	 	of	 	crease	 	of Trustee or Note
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 

	 	 
	 	 
	 	 
	 	 







 




			
	5	 	This schedule should be included only if
the Note is issued in global form.




F-14









 










EXHIBIT B




FORM OF LEGENDS




          Each Global Note and Physical Note that constitutes a Restricted Security shall bear the
following legend (the “Private Placement Legend”) on the face thereof until after the second
anniversary of the Issue Date, unless otherwise agreed by the Co-Issuers and the Holder thereof or
if such legend is no longer required by Section 2.16(f) of the Indenture:





THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4)
PURSUANT TO ANOTHER APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (5)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.



          Each Global Note authenticated and delivered hereunder shall also bear the following legend:





     THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



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EXHIBIT C




Form of Certificate To Be Delivered

in Connection with Transfers

Pursuant to Regulation S




[               ], [  ]




Wells Fargo Bank, National Association

Corporate Trust Services

45 Broadway, 14th floor

New York, New York 10006

Wells Fargo Bank, National Association

As Trustee and Registrar — DAPS Reorg

MAC N9303-121

608 2nd Ave South

Minneapolis, MN 55479



Re:



Navios Maritime Acquisition Corporation and Navios Acquisition Finance (US) Inc. (the
“Co-Issuers”) 85⁄8%
First Priority Ship Mortgage Notes due 2017 (the “Notes”)


Ladies and Gentlemen:




          In connection with our proposed sale of $400,000,000 aggregate principal amount of the Notes,
we confirm that such sale has been effected pursuant to and in accordance with Regulation S under
the U.S. Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent
that:





     (1) the offer of the Notes was not made to a person in the United States;




     (2) either (a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States, or (b) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither we nor any
person acting on our behalf knows that the transaction has been prearranged with a buyer in
the United States;




     (3) no directed selling efforts have been made in the United States in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;




     (4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and




     (5) we have advised the transferee of the transfer restrictions applicable to the
Notes.



          You, as Trustee, the Co-Issuers, counsel for the Co-Issuers and others are entitled to
conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the meanings set forth
in Regulation S under the Securities Act.








C-1









 








	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	[Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 






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EXHIBIT D




FORM OF SUPPLEMENTAL INDENTURE




TO BE DELIVERED BY SUBSEQUENT GUARANTORS



          SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of      , 20 ,
among      (the “Guaranteeing Subsidiary”), a subsidiary of Navios
Maritime Acquisition Corporation (or its permitted successor), a Marshall Islands corporation, (the
“Company”) and Navios Acquisition Finance (US) Inc., a Delaware corporation, (together with the
Company, the “Co-Issuers”), the other Guarantors (as defined in the Indenture referred to herein)
and Wells Fargo Bank, National Association, as trustee (or its permitted successor) under the
Indenture referred to below (the “Trustee”) and as collateral trustee (or its permitted successor)
under the Indenture referred to below (the “Collateral Trustee”).




          WITNESSETH




          WHEREAS, the Co-Issuers and the Guarantors has heretofore executed and delivered to the
Trustee an indenture (the “Indenture”), dated as of October 21, 2010 providing for the issuance of
85⁄8% First Priority Ship Mortgage Notes due 2017 (the “Notes”);




          WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Co-Issuers’ obligations under
the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”);
and




          WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.




          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:




          1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.




          2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an
unconditional Guarantee, on and subject to the terms, conditions and limitations set forth in the
Notation of Guarantee and in the Indenture, including, but not limited, to Article Ten thereof.




          4. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.




          5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the same agreement.







D-1









 








          6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not
affect the construction hereof.




          7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Co-Issuers.







D-2









 








          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.



Dated:      , 20




	 	 	 	 	 	 	 

	 	 	[GUARANTEEING SUBSIDIARY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	NAVIOS MARITIME ACQUISITION CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[EXISTING GUARANTORS]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

     as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

     as Collateral Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Signatory
	 	 






D-3









 





EXHIBIT E




NOTATION OF GUARANTEE




          For value received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of October 21, 2010 (the
“Indenture”), among Navios Maritime Acquisition Corporation and Navios Acquisition Finance (US)
Inc. (collectively, the “Co-Issuers”), the Guarantors party thereto and Wells Fargo Bank, National
Association, as trustee (the “Trustee”) and collateral trustee, (a) (x) the due and punctual
payment of the principal of, premium, if any, and interest and Additional Interest, if any, on the
Notes when and as the same shall become due and payable, whether at maturity, upon redemption or
repurchase, by acceleration or otherwise, (y) the due and punctual payment of interest on the
overdue principal and (to the extent permitted by law) interest and Additional Interest, if any, on
the Notes and (z) the due and punctual payment and performance of all other obligations of the
Co-Issuers and all other obligations of the other Guarantors (including under the Note Guarantees).
The obligations of the Guarantors to the Holders and to the Trustee pursuant to the Note Guarantee
and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Note Guarantee.




          Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.







E-1









 








          IN WITNESS WHEREOF, each Guarantor has caused this Notation of Guarantee to be duly executed.



Date:




[Guarantors]






E-2









 








EXHIBIT F




HONG KONG SHIP MORTGAGE



Entered into pursuant to section 44 of the Merchant Shipping (Registration) Ordinan/ce






 




BY THIS MORTGAGE the Mortgagor referred to in Part ONE Mortgages the Ship referred to in Part TWO
to the Mortgagee referred to in Part THREE as security for the due and punctual performance of all
the Mortgagor’s obligations to the Mortgagee pursuant to the [document] [transaction] referred to
in Part FOUR as such [document] [transaction] may from time to time hereafter be amended modified
and supplemented.







By its execution of this mortgage the Mortgagor warrants to the Mortgagee that (a) it has power to
enter into this mortgage (b) the said ship is free of incumbrances save for any shown in the Hong
Kong Register of Ships at the time this mortgage is presented for recording and (c) this mortgage
is binding on and enures for the benefit of the successors and assigns of the Mortgagor and
Mortgagee. [The Mortgagor further warrants that the Mortgagee’s representative has authority to
insert the official number of the Ship upon such number being designated to the Ship.]








	 	 	 

	PART ONE

	 	MORTGAGOR (Ship’s owner)
	

	 	







	 	 	 

	Name 
	 	Address [and place of incorporation] 






	 	 	 

	PART TWO

	 	SHORT DESCRIPTION OF MORTGAGED SHIP
	

	 	







	 	 	 

	Official Number (see Note 2) 
	 	Ship’s Name 





and as more particularly described in the Register Official Number (see Note 2) 




	 	 	 

	PART THREE

	 	     MORTGAGEE (see Note 3)
	

	 	






	 	 	 

	Name[s] 

	 	Address [and Place of incorporation] fax/telex
	 

	 	
	 
	 	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION

	 	625, Marquette Avenue, Minneapolis MN
55402, U.S.A. (Incorporated in South
Dakota, the United States of America)
	 
	 	 
	 

	 	Telex :           Fax :     +212 515 1589






PART FOUR







Particulars of Document[s] or transaction[s], the obligations whereunder are secured by this
mortgage (see note 4)








	 	 

	Date and Nature of Transaction and Description of Document (if any)
	Parties 
	

	






F-1









 






	 	 	 

	1. Indenture dated 21 October 2010

	 	1. The Mortgagor
(as guarantor), the
Mortgagee (as
trustee and
collateral trustee)
and others.
	 
	 	 
	2. Deed of Covenants dated [•]

	 	2. The Mortgagor
(as owner) and the
Mortgagee (as
mortgagee and
collateral
trustee).
	 
	 	 
	3. Assignment of Freights and Hires dated [•]

	 	3. The Mortgagor
(as owner) and the
Mortgagee (as
assignee and
collateral
trustee).
	 
	 	 
	4. Assignment of Insurance dated [•]

	 	4. The Mortgagor
(as owner) and the
Mortgagee (as
assignee and
collateral
trustee).





IN WITNESS whereof the Mortgagor has caused this mortgage to be executed on 21 October 2010.







SIGNED SEALED AND DELIVERED for and on behalf of
[•] by [its duly appointed attorney-in-fact,] [•], [pursuant to a Power of
Attorney dated [•],] in the presence of:-




NOTES





	1.	 	[     ] complete/delete as appropriate.
	 
	 	 	[     ] 
	 
	2.	 	If this mortgage is executed before the Ship is registered on the Hong Kong Register of Ships,
the mortgage will only take effect as a statutory mortgage upon such registration.
	 
	 	 	
	 
	3.	 	If more than one mortgagee, insert all names, in which case all those named will be treated in
the Hong Kong register of Ships as joint mortgagees.
	 
	 	 	
	 
	4.	 	“Transaction” contemplates transactions (e.g. overdraft facilities) not necessarily the subject
of any specifically identifiable document.
	 
	 	 	
	 
	5.	 	Prompt registration at the Hong Kong Registry of Ships is essential to the security of a
mortgagee, as a mortgage takes its priority from the date of production for registry, not from
the date of the instrument.
	 
	 	 	
	 
	 	 	
	 
	6.	 	Registered owners or mortgagees are reminded of the importance of keeping the Registrar of
Hong Kong Ships informed of any change of address on their part.
	 
	 	 	
	 
	7.	 	Registered owners and mortgagees are also reminded that a mortgage on a ship belonging to a
company incorporated in Hong Kong or a company registered under Part XI of the Companies
Ordinance is void against the liquidator or any creditor of the company unless a notification
of the mortgage is delivered to or received by the Registrar of Companies for registration
within 5 weeks after the date of its creation.
	 
	 	 	
	 
	 	 	
	 
	8.	 	To facilitate entries into the Register, please provide information in English.
	 
	 	 	





F-2









 





DEED OF COVENANTS

ON THE HONG KONG FLAG MOTOR VESSEL




[               ]



. / .



          THIS DEED OF COVENANTS is made this 21st day of October 2010, BY SHINYO ______ (hereinafter called
the “Shipowner”), a private limited company organized and existing under the laws of [Hong Kong/the
British Virgin Islands] with registered office situated at [15th Floor, Tower One, Lippo Centre,
89 Queensway, Admiralty, Hong Kong / c/o Maples Corporate Services (BVI) Limited, P.O. Box 173,
Kingston Chambers, Tortola, British Virgin Islands and registered as a non-Hong Kong Company under
Part XI of the Companies Ordinance (Cap, 32) with principal place of business in Hong Kong at
15th Floor, Tower One, Lippo Centre, 89 Queensway, Admiralty, Hong Kong], TO WELLS FARGO
BANK, National Association, as Collateral Trustee (as defined in the Indenture referred to
hereinafter) (the “Mortgagee”), a United States national banking association incorporated in South
Dakota, United States of America and with registered office situated at 625, Marquette Avenue,
Minneapolis MN 55402, United States of America.




WHEREAS :




          I. The Shipowner is the sole, legal, absolute and unencumbered owner of One Hundred (100%)
shares of the motor vessel [               ] (hereinafter called the “Vessel”) duly documented in the
name of the Shipowner under and pursuant to the laws of Hong Kong having IMO No. [               ],
Official Number [               ], call sign [               ] of [               ] gross tons and [               ] net tons.




          II. NAVIOS MARITIME ACQUISITION CORPORATION, a Marshall Islands corporation (the “Company”)
and NAVIOS ACQUISITION FINANCE (US) Inc., a Delaware            corporation (collectively the
"Co-Issuers”), have jointly and severally issued on October 21, 2010, in U.S.A., US Dollars Four
Hundred Million (US$400,000,000) of their 8 5/8.% First Priority Ship Mortgage Notes due 2017
(hereinafter refereed to as the “Note Issue”). The notes issued under the Indenture referred to
below and constituting the Note Issue and the notes to be issued in replacement or substitution
thereof are hereinafter collectively called the “Notes” and individually a “Note”. The Notes bear
interest at the rate of 8 5/8% per annum and if overdue, 8 5/8% per annum. Interest is payable
semi-annually in arrears on the first day of each May and November commencing on May 1, 2011.
Additional interest, if any, is payable at the rate of up to 1% per annum, as set forth in the
Indenture and the Notes. The form of the Notes with the Guarantees mentioned therein, is attached
hereto as Exhibit “A” and made an integral part hereof.




          III. The Note Issue is guaranteed (the “Guarantees”) irrevocably and unconditionally, jointly
and severally, by certain Subsidiaries of the Company, including the Shipowner (the “Guarantors”).
In order to secure its obligations under its guarantee, the Shipowner has agreed to execute and
deliver, inter alia, the Mortgage (as defined below) as collateral security therefore.




          IV. The Notes and related Guarantees have been issued and the Mortgagee has been appointed
Trustee and Collateral Trustee for the Notes pursuant to an Indenture dated October 21, 2010 (such
indenture as from time to time amended or supplemented being hereinafter called the “Indenture”)
executed in the city of New York, New York, U.S.A. by and among the Mortgagee, as Trustee and
Collateral Trustee, the Co-Issuers and the Guarantors. The Indenture contains in detail the terms
and conditions of the Note Issue and is attached hereto, without exhibits, as Exhibit “C” and
constitutes an integral part hereof. It being agreed that terms used herein and not otherwise
defined are used as defined in the






F-1









 







Indenture and that, in the event of any inconsistency between the provisions of the Indenture
and the provisions of this Deed of Covenants, the provisions of the Indenture shall be paramount
and shall prevail.




          V. Under the terms of the Indenture and applicable New York law, the Mortgagee, in its
capacity as Trustee and Collateral Trustee of the Note Issue for the benefit of the Holders, has
inter alia the right, power and authority in its own name and as lawful owner of the relevant
claims, rights and actions to:





     (a) pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes, the Indenture or the Mortgage (as defined below) and this Deed of
Covenants;




     (b) recover judgment in its own name against the Co-Issuers or the Shipowner or any
other obligor on the Notes for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that payment of such
interest is lawful, interest on overdue payments of interest, and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Mortgagee, its agents and counsel;
and




     (c) file such proofs of claim and other papers of documents as may be necessary or
advisable in order to have the claims of the Mortgagee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Mortgagee, its agents
and counsel) and the holders of the Notes allowed in any judicial proceedings relative to
the Co-Issuers, the Shipowner or any other obligor under the Notes, its creditors or its
property and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same, and any
custodian or public or court officer in any such judicial proceedings is authorized to make
such payments to the Mortgagee and, in the event that the Mortgagee shall consent to the
making of such payments directly to the holders of the Notes, to pay to the Mortgagee any
amount due to it for the reasonable compensation, expenses, disbursements and advances of
the Mortgagee, its agents and counsel, and any other amounts due the Mortgagee under the
Indenture.



          All rights of action and claims under the Indenture or the Mortgage may be enforced by the
Mortgagee even if the Mortgagee does not possess any of the Notes or does not produce any of them
in the proceedings.




          VI. It was one of the conditions of the Indenture that the Shipowner executes a first priority
Hong Kong ship mortgage over the Vessel as security for the Indebtedness as defined herein below
(the “Mortgage”); and




          VII. Contemporaneously with the execution of this Deed of Covenants there has been executed by
the Shipowner in favour of the Mortgagee the Mortgage which constitutes a first priority mortgage
on One Hundred (100%) shares in the Vessel and this Deed of Covenants is supplemental to the
Mortgage and to the security thereby created; and




          VIII. The Shipowner in order to secure the due and punctual payment of the indebtedness
aforesaid and the performance and observance of and compliance with the covenants, terms and
conditions and in the Guarantee, the Indenture, the Notes, the Mortgage and Deed of Covenants, has
duly authorized the execution and delivery of this Deed of Covenants under and pursuant to the laws
of Hong Kong.







F-2









 








          NOW THEREFORE THIS DEED WITNESSETH and it is hereby agreed as follows:




          1. The Mortgage




          In consideration of the premises and of other good and valuable consideration, the receipt and
adequacy whereof is hereby acknowledged THE SHIPOWNER as BENEFICIAL OWNER DOES HEREBY MORTGAGE AND
CHARGE to and in favour of the Mortgagee, as Collateral Trustee for the account of the holders of
the Notes, all its interest, present and future, in the Vessel together with all her boilers,
engines, machinery, outfit, spare parts, bunkers, lubricants and gear and all other constituent
parts, and appurtenances thereto belonging, whether now owned or hereafter acquired, and all
additions, improvements and replacements made in or to the Vessel BY WAY OF SECURITY for the
payment to the Mortgagee of any and all monies payable by the Shipowner under the Indenture and/or
the Notes and/or the Guarantees and any and all other monies, including interest, premium (if any),
commissions, expenses, taxes and other charges due to the Mortgagee under the terms of the
Indenture and/or the Notes and/or the Guarantees and/or the Mortgage and this collateral Deed of
Covenants and under any eventual subsequent amendment of the terms of the Indenture and/or the
Notes and/or the Guarantees and/or the Mortgage and this collateral Deed of Covenants (including by
way of indication the variation of the manner of computation or the time of payment of interest
and the variation of the time of repayment of principal) or any claim of the Mortgagee against the
Shipowner and/or the officers, representatives, employees and servants thereof out of tort and/or
unjust enrichment and/or payment of monies not due relating to the Note Issue and the execution of
the Indenture and/or the Notes and/or the Guarantees and/or the Mortgage and this collateral Deed
of Covenants same constituting additional indebtedness secured in the currency of the time by the
Mortgage and this collateral Deed of Covenants (all such monies being hereinafter collectively
referred to as the “Indebtedness”) as well as for the performance and observance of all agreements,
covenants and conditions herein and in the Guarantee and the Indenture contained.




          2. Assignment of Insurance and Assignment of Freights and Hires




          In pursuance of the Mortgage and this Deed of Covenants, the Shipowner under the terms of a
certain First Priority Assignment of Insurance and a certain First Priority Freights and Hires
dated the date hereof has further assigned and transferred to the Mortgagee, all the Shipowner’s
right, title and interest in and to:





     (a) the policies of insurance and entries in a mutual insurance association or club
that have now or may thereafter be taken out in respect of the Vessel for hull and
machinery, freights, disbursements, profits or otherwise howsoever and for protection and
indemnity and all the benefits thereof including all claims of whatsoever nature, return of
premiums, etc.; provided, however, that such insurances shall not include any policies of
insurances issued to the Shipowner or for the Shipowner’s benefit that provide coverage for
a credit default by a charterer under any charter party concerning the Vessel; and




     (b) all hires of the Vessel which shall include all freights, passage monies, hire
monies, requisition compensation, salvage, charter remuneration, demurrage, detention monies
or claims for damage arising out of the breach of any contract relating to the employment of
the Vessel and in general all the earnings of the Vessel.



          3. Continuing Security




          It is declared and agreed that the security created by the Mortgage and this Deed of Covenants
shall be held by the Mortgagee, as Collateral Trustee for the account of the holders of the Notes,
as a continuing security for the payment of the Indebtedness and that the security so created shall






F-3









 







not be satisfied by any intermediate payment or satisfaction of any part of the amount hereby
secured and that the security so created shall be in addition to and shall not in any way be
prejudiced or affected by any collateral or other security now or hereafter held by the Mortgagee
for all or any part of the moneys hereby and thereby secured and that every power and remedy given
to the Mortgagee hereunder shall be in addition to and not in limitation of any and every other
power or remedy vested in the Mortgagee under any such other collateral or security and that all
the powers so vested in the Mortgagee may be exercised from time to time and as often as the
Mortgagee may deem expedient.




          4. Termination of the Mortgage




          The Mortgagee hereby agrees that, upon full payment of all monies hereby secured before this
security shall have become enforceable and upon payment of all costs and the discharge of all
liabilities incurred by the Mortgagee in relation to these presents, it will, at the expense of the
Shipowner, discharge this security and retransfer or re-assign to the Shipowner all charterparties,
freights, policies, certificates of entry and other documents relating to the Vessel as may remain
in its possession freed and discharged from the provisions herein contained.




     5. Successors and assigns



          All of the covenants, promises, stipulations and agreements of the Shipowner contained in the
Mortgage and this Deed of Covenants shall bind the Shipowner and its successors and assigns and
shall inure to the benefit of the Mortgagee and its successors and assigns. In the event of any
assignment of the Mortgage and this Deed of Covenants, the term “Mortgagee” as used in the Mortgage
and this Deed of Covenants, shall be deemed to mean any such assignee.




          6. Notices




          For the purpose of any notice or service of process under or in connection with the Mortgage
and this Deed of Covenants, the Shipowner hereby agrees that the notice or service of process, made
to the Shipowner at the address mentioned below, shall be sufficient and binding upon the Shipowner
for any and all such purposes:





c/o Navios Maritime Acquisition Corporation, at 85, Akti Miaouli, Piraeus 185 38, Greece
and,




at the discretion of the Mortgagee, and in case of legal proceedings in Hong Kong:
at 15th Floor, Tower One, Lippo Centre, 89 Queensway, Admiralty, Hong Kong.



          7. Counterparts




          This Deed of Covenants may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the same instrument.




          8. Mortgage Conditions




          The Shipowner hereby covenants, declares and agrees that the property above described is to be
held subject to the further covenants, terms and conditions, stipulated in Exhibit “B” and made an
integral part of this Deed of Covenants.







F-4









 






          9. Applicable Law and Jurisdiction



          This Deed of Covenants shall be governed by and construed in accordance with, the laws of Hong Kong.




          For the benefit of the Mortgagee, the Shipowner hereby irrevocably agrees that any legal
action or proceedings in connection with this Deed of Covenants may be brought in the Hong Kong
courts which shall have non-exclusive jurisdiction to settle any disputes arising out of or in
connection with this Deed of Covenants. The Shipowner irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the Hong Kong courts. The submission to such jurisdiction shall
not (and shall not be construed so as to) limit the right of the Mortgagee and/or the Collateral
Trustee to take proceedings against the Shipowner in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings
in any other jurisdiction, whether currently or not.




          IN WITNESS WHEREOF the Shipowner has caused this Deed of Covenants to be duly executed the day
and year first hereinabove written.



The Shipowner




	 	 	 	 	 

	SEALED with the common seal of

	 	 	)	 
	[Name of the Shipowner]

	 	 	)	 
	 
	 	 	 	 
	and SIGNED by

	 	 	)	 
	 
	 	 	 	 
	 

Name:

	 	 	 )	 
	Title:

	 	 	)	 
	its duly authorized attorney

	 	 	)	 
	in the presence of:

	 	 	)	 
	 
	 	 	 	 
	 

Name:

	 	 	 )	 
	Title:

	 	 	)	 






F-5









 






          The terms and conditions of this Deed of Covenants are hereby




ACCEPTED BY:




WELLS FARGO BANK, National Association

as Collateral Trustee




	 	 	 	 	 

	SIGNED by Martin Reed

	 	 	)	 
	Vice President

	 	 	)	 
	 
	 	 	 	 
	as a Deed

	 	 	)	 
	for and on behalf of

	 	 	)	 
	 
	 	 	 	 
	WELLS FARGO BANK, National Association

	 	 	)	 
	 
	 	 	 	 
	in the presence of: Raymond Delli Colli

	 	 	)	 
	Vice President

	 	 	)	 







F-6











 





EXHIBIT “A”




FORM OF NOTES




NAVIOS MARITIME ACQUISITION CORPORATION.

NAVIOS ACQUISITION FINANCE (US) INC.



85/8% First Priority Ship Mortgage Notes due 2017



CUSIP No.




ISIN No.




			
	 	 	 
	No.
	 	$






          NAVIOS MARITIME ACQUISITION CORPORATION, a Marshall Islands corporation, and NAVIOS
ACQUISITION FINANCE (US) INC., a Delaware corporation, as co-issuers, (the “Co-Issuers”), for value
received, jointly and severally, promise to pay to ______ or its registered assigns, the
principal sum of            U.S. dollars [or such other amount as is provided in a schedule
attached hereto]6 on November 1, 2017.




          Interest Payment Dates: May 1 and November 1, commencing May 1, 2011.




          Record Dates: April 15 and October 15.




          Reference is made to the further provisions of this Note contained herein, which shall




          for all purposes have the same effect as if set forth at this place.






 




			
	6	 	This language should be included only if the Note is issued in global form.





F-7









 





          IN WITNESS WHEREOF, each Co-Issuer has caused this Note to be signed manually or by facsimile
by its duly authorized Officer.




	 	 	 	 	 	 	 	 	 

	Dated:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	NAVIOS MARITIME ACQUISITION	 	NAVIOS ACQUISITION	 	 
	CORPORATION	 	FINANCE (US) INC.	 	 
	as Co-Issuer	 	as Co-Issuer	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 	 	 	 	Name:	 	 
	Title:

	 	 	 	 	 	Title:	 	 






F-8









 





FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          This is one of the 8 5/8% First Priority Ship Mortgage Notes due 2017 described in the
within-mentioned Indenture.




Dated:




	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

     as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




F-9









 





(Reverse of Note)




85/8% First Priority Ship Mortgage Notes due 2017



          Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.




      
    SECTION 1. Interest. Navios Maritime
 Acquisition Corporation, a Marshall Islands
corporation, and Navios Acquisition Finance (US) Inc., a Delaware Corporation, as co-issuers, (the
“Co-Issuers”), jointly and severally promise to pay interest (including Additional Interest, if
applicable) on the principal amount of this Note at 8 5/8% per annum from October 21, 2010, until
maturity. The Co-Issuers shall pay interest semi-annually in arrears on May 1 and November 1 of
each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an
“Interest Payment Date”), commencing on May 1, 2011. Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the date of
original issuance. The Co-Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand to the extent lawful at the interest rate applicable to the Notes; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (in each case without regard to any
applicable grace periods) from time to time on demand at the same rate to the extent lawful.
Interest shall be computed on the basis of a 360-day year of twelve 30-day months.




          SECTION 2. Method of Payment. The Co-Issuers shall pay interest and Additional
Interest, if any, on the Notes to the Persons who are registered Holders at the close of business
on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are
canceled after such Record Date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be issued in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Co-Issuers shall
pay principal, premium, if any, and interest on the Notes in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private debts
(“U.S. Legal Tender”). Principal, premium, if any, interest and Additional Interest, if any, on
the Notes shall be payable at the office or agency of the Co-Issuers maintained in the United
States for such purpose except that, at the option of the Co-Issuers, the payment of interest and
Additional Interest, if any, may be made by check mailed to the Holders at their respective
addresses set forth in the register of Holders; provided that for Holders owning at least $100,000
aggregate principal amount of Notes that have given wire transfer instructions to the Co-Issuers at
least ten (10) Business Days prior to the applicable payment date, the Co-Issuers shall make all
payments of principal, interest, premium and Additional Interest, if any, by wire transfer of
immediately available funds to the accounts specified by the Holders thereof. Until otherwise
designated by the Co-Issuers, the Co-Issuers’ office or agency in the United States shall be the
office of the Trustee maintained for such purpose.




          SECTION 3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National
Association the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Co-Issuers may change any Paying Agent or Registrar without prior notice to any Holder. Except as
provided in the Indenture, the Co-Issuers or any of their Subsidiaries may act in any such
capacity.




          SECTION 4. Indenture. The Co-Issuers issued the Notes under an Indenture dated as of
October 21, 2010 (the “Indenture”) by and among the Co-Issuers, the Guarantors (as defined
therein), Wells Fargo Bank, National Association, as Collateral Trustee, and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “Trust
Indenture Act”). The Notes are






F-10









 







subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture
Act for a statement of such terms. To the extent any provision of this Note conflicts with the
express provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling.




          SECTION 5. Optional Redemption.




          (a) On or after November 1, 2013, the Co-Issuers may redeem all or a part of the Notes upon
not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages
of principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if
any, on the Notes redeemed, to the applicable Redemption Date, if redeemed during the twelve-month
period beginning on November 1 of the years indicated below, subject to the rights of Holders on
the relevant Record Date to receive interest on the relevant Interest Payment Date:




	 	 	 	 	 
	Year	 	Percentage
	2013
	 	 	104.313	%
	2014
	 	 	102.156	%
	2015 and thereafter
	 	 	100.000	%






          (b) Prior to November 1, 2013, the Co-Issuers may, at their option, redeem all or a part of
the Notes upon not less than 30 nor more than 60 days’ notice at a redemption price equal to the
sum of:




               (i) 100% of the principal amount of the Notes to be redeemed, plus



               (ii) the Applicable Premium, plus


accrued and unpaid interest and Additional Interest, if any, on the Notes redeemed, to the
applicable Redemption Date, subject to the right of Holders on the relevant Record Date to receive
interest due on the relevant interest payment date (a “Make-Whole Redemption”).




          SECTION 6. Redemption With Proceeds of Equity Offerings. At any time prior to
November 1, 2013, the Co-Issuers may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture (including any Additional Notes) at a
Redemption Price of 108.625% of the principal amount, plus accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date, with the net cash proceeds of one or more
Equity Offerings; provided that:





     (1) at least 65% of the aggregate principal amount of Notes issued under the Indenture
(excluding Notes held by the Co-Issuers and the Restricted Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and




     (2) such redemption occurs not more than 180 days after the date of the closing of the
relevant such Equity Offering.



          SECTION 7. Redemption for Changes in Withholding Tax. The Co-Issuers may, at their
option, redeem all, but not less than all, of the Notes then outstanding at a redemption price
equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest and Additional
Amounts, if any, thereon to the Redemption Date, if the Co-Issuers have become or would become
obligated to pay, on the next date on which any amount would be payable with respect to such Notes,
any Additional Amounts as a result of any change in law (including any regulations promulgated
thereunder) or in the official interpretation or administration of law, if such change is announced
and becomes effective on or after the






F-11









 







Issue Date and the Co-Issuers determine in good faith that such obligation cannot be avoided
(including, without limitation, by changing the jurisdiction from which or through which payment is
made) by the use of reasonable measures (not requiring material cost) available to the Co-Issuers
and the Guarantors.




          Notice of any such redemption must be given within 60 days of the earlier of the announcement
and the effectiveness of any such amendment or change referred to in the preceding paragraph. At
the time such notice of redemption is given, such obligation to pay such Additional Amounts must
remain in effect. Immediately prior to the mailing of any notice of redemption described above,
the Co-Issuers shall deliver to the Trustee (i) an Officers’ Certificate stating that the
Co-Issuers are entitled to elect to effect such redemption and setting forth a statement of facts
showing that the conditions precedent to the right of the Co-Issuers so to elect to redeem have
occurred and (ii) if requested by the Trustee, an Opinion of Counsel qualified under the laws of
the relevant jurisdiction to the effect that the Co-Issuers or the applicable Guarantor or such
successor Person, as the case may be, has or will become obligated to pay such Additional Amounts
as a result of such amendment or change.




          SECTION 8. Selection and Notice of Redemption. Notes in denominations larger than
$2,000 may be redeemed in part; provided that Notes shall be redeemed only in integral multiples of
$1,000 unless all Notes held by a Holder are to be redeemed. Notice of redemption shall be mailed
by first class mail at least 30 days but not more than 60 days before the Redemption Date to each
Holder whose Notes are to be redeemed at its registered address, except that redemption notices may
be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of the Indenture. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note shall be issued in the name of the Holder upon cancellation
of the original Note. Notes called for redemption become due on the date fixed for redemption. On
and after the Redemption Date, interest and Additional Interest, if any, cease to accrue on Notes
or portions thereof called for redemption, unless the Co-Issuers default in the payment of the
Redemption Price.




          SECTION 9. Mandatory Redemption. The Co-Issuers shall not be required to make
mandatory redemption or sinking fund payments with respect to the Notes (it being understood that
the foregoing shall not limit Section 10 below).




          SECTION 10. Repurchase at Option of Holder.




          (a) Upon the occurrence of a Change of Control, and subject to certain conditions set forth in
the Indenture, the Co-Issuers shall be required to offer to purchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of the outstanding Notes at a purchase
price equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the date of repurchase, subject to the rights of Holders on
the relevant Record Date to receive interest due on the relevant interest payment date.




          (b) The Co-Issuers are, subject to certain conditions and exceptions, obligated to make an
offer to purchase Notes and certain other pari passu Indebtedness at 100% of their principal
amount, plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of
repurchase, with certain Excess Proceeds, Excess Collateral Proceeds and Excess Loss Proceeds , in
each case in accordance with the Indenture.




          SECTION 11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the
Indenture. The






F-12









 







Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Co-Issuers may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Co-Issuers and the Registrar are not
required to transfer or exchange any Note selected for redemption, except the unredeemed portion of
any Note being redeemed in part. Also, the Co-Issuers and the Registrar are not required to
transfer or exchange any Notes for a period of 15 days before the mailing of a notice of redemption
of Notes to be redeemed.




          SECTION 12. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.




          SECTION 13. Amendment, Supplement and Waiver. The Indenture, the Security Documents
and the Notes may be amended, supplemented or waived as set forth in, and subject to the terms and
conditions of, the Indenture.




          SECTION 14. Defaults and Remedies. The Events of Default relating to the Notes are
set forth in Section 6.01 of the Indenture. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes generally
may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or insolvency as set forth in
the Indenture, all outstanding Notes shall become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate
principal amount of the Notes then outstanding, by notice to the Trustee, may on behalf of the
Holders of all of the Notes rescind an acceleration or waive any existing Default and its
consequences under the Indenture except a continuing Default in the payment of interest on, or the
principal of, or the premium or Additional Interest on, the Notes, subject to certain conditions
being met. The Co-Issuers shall deliver to the trustee a statement specifying any Default or Event
of Default within 30 days of becoming aware thereof.




          SECTION 15. Additional Amounts. All payments made by the Co-Issuers under or with
respect to this Note or by a Guarantor under or with respect to its Note Guarantee shall be made
free and clear of and without withholding or deduction for or on account of any present or future
Taxes, to the extent provided in Section 4.20 of the Indenture.




          SECTION 16. Security Documents. In order to secure the due and punctual payment of
the principal of, premium, if any, and interest on the Notes and all other amounts payable by the
Co-Issuers and the Guarantors under the Indenture, the Notes and the Guarantees when and as the
same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes, the Guarantees and the Indenture, each of the Mortgaged Vessel Guarantors have
granted security interests in and Liens on the Collateral owned by it to the Collateral Trustee on
behalf of the Trustee for the benefit of the Holders pursuant to the Indenture and the Security
Documents. The Notes will be secured by Liens and security interests in the Collateral that are
subject only to Permitted Liens.




          Each Holder, by accepting a Note, consents and agrees to all of the terms and provisions of
the Security Documents, as the same may be amended from time to time pursuant to the respective
provisions thereof and of the Indenture.




          The Collateral Trustee, the Trustee and each Holder acknowledge that a release of any of the
Collateral or Lien strictly in accordance with the terms and provisions of any of the Security
Documents and the terms and provisions of the Indenture will not be deemed for any purpose to be an
impairment of the security under the Indenture.







F-13









 








          SECTION 17. No Recourse Against Others. No past, future or present director,
Officer, employee, incorporator, member, manager, agent or shareholder of any Co-Issuer or any
Guarantor, as such, shall have any liability for any obligations of any Co-Issuer or any Guarantors
under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. The Holder by accepting this Note and the Note
Guarantees waives and releases all such liability. Such waiver and release are part of the
consideration for issuance of this Note and the Note Guarantees.




          SECTION 18. Note Guarantees. This Note shall be entitled to the benefits of certain
Note Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture for
a statement of the respective rights, limitations of rights, duties and obligations thereunder of
the Guarantors, the Trustee and the Holders.




          SECTION 19. Trustee Dealings with the Co-Issuers. Subject to certain terms set forth
in the Indenture, the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Co-Issuers, the Guarantors their Subsidiaries or
their respective Affiliates as if it were not the Trustee.




          SECTION 20. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.




          SECTION 21. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




          SECTION 22. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. Pursuant to, but subject to the exceptions in, the Registration Rights
Agreement, the Co-Issuers and the Guarantors shall be obligated to use their commercially
reasonable efforts to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for a 85⁄8% First Priority Ship Mortgage Note due 2017 of the
Co-Issuers which shall have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects to this Note (except that such Note shall not be
entitled to Additional Interest and shall not contain terms with respect to transfer restrictions).
The Holders shall be entitled to receive certain Additional Interest in the event such exchange
offer is not consummated or the Notes are not offered for resale and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights Agreement.




          SECTION 23. CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Co-Issuers have caused CUSIP and ISIN
numbers to be printed on the Notes and the Trustee may use CUSIP or ISIN numbers in notices of
redemption as a convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.




          SECTION 23. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.




F-14









 




The Co-Issuers shall furnish to any Holder upon written request and without charge a copy of the
Indenture.







F-15









 








ASSIGNMENT FORM



I or we assign and transfer this Note to



 





(Print or type name, address and zip code of assignee or transferee)



(Insert Social Security or other identifying number of assignee or transferee)



and irrevocably appoint                                                              agent to transfer this Note on the
books of the Co-Issuers. The agent may substitute another to act for him.




	 	 	 	 	 	 	 

	Dated:                                         

	 	Signed:	 	 	 	 
	 

	 	 	 	 

(Sign exactly as name appears on
the other side of this Note)
	 	 






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 






Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)



          In connection with any transfer of this Note occurring prior to the date which is the date
following the second anniversary of the original issuance of this Note, the undersigned confirms
that it has not utilized any general solicitation or general advertising in connection with the
transfer and is making the transfer pursuant to one of the following:




[Check One]





	(1) o	 	to the Co-Issuers or a subsidiary thereof; or
	 
	(2) o	 	to a person who the transferor reasonably believes is a “qualified institutional buyer”
pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the
“Securities Act”); or
	 
	(3) o	 	outside the United States to a non-“U.S. person” as defined in Rule 902 of Regulation S
under the Securities Act in compliance with Rule 904 of Regulation S under the Securities Act;
or
	 
	(4) o	 	pursuant to the exemption from registration provided by Rule 144 under the Securities Act
or pursuant to another exemption available under the Securities Act; or
	 
	(5) o	 	pursuant to an effective registration statement under the Securities Act.




and unless the box below is checked, the undersigned confirms that such Note is not being
transferred to an “affiliate” of the Co-Issuers as defined in Rule 144 under the Securities Act (an
“Affiliate”):




          o      transferee is an Affiliate of the Co-Issuers.







F-16









 








          Unless one of the foregoing items (1) through (5) is checked, the Trustee shall refuse to
register any of the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided, however, that if item (3) or (4) is checked, the Co-Issuers or
the Trustee may require, prior to registering any such transfer of the Notes, in their sole
discretion, such written legal opinions, certifications (including an investment letter in the case
of box (3)) and other information as the Trustee or the Co-Issuers has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act.




          If none of the foregoing items (1) through (5) are checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the Holder hereof unless
and until the conditions to any such transfer of registration set forth herein and in Section 2.16
of the Indenture shall have been satisfied.




	 	 	 	 	 	 	 

	Dated:                                         

	 	Signed:	 	 	 	 
	 

	 	 	 	 

(Sign exactly as name appears on the other
side of this Note)
	 	 






	 	 	 

	Signature Guarantee:
	 	 
	 

	 	 
 Participant
in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)




TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED




          The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Co-Issuers as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by Rule 144A.




	 	 	 	 	 	 	 

	Dated:                                         
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	NOTICE:
	 	To be executed by an executive officer	 	 






F-17









 





OPTION OF HOLDER TO ELECT PURCHASE




          If you want to elect to have this Note purchased by the Co-Issuers pursuant to Section 4.09,
Section 4.13(I), Section 4.13(II) or Section 4.21 of the Indenture, check the appropriate box:




	 	 	 

	Section 4.09

	 	o
	 
	Section 4.13(I)

	 	o
	 
	Section 4.13(II)

	 	o
	 
	Section 4.21

	 	o






          If you want to elect to have only part of this Note purchased by the Co-Issuers pursuant to
Section 4.09, Section 4.13(I), Section 4.13(II) or Section 4.21 of the Indenture, state the amount
(in denominations of $2,000 and integral multiples of $1,000 in excess thereof): $




	 	 	 	 	 	 	 

	Dated:                                         

	 	Signed:	 	 	 	 
	 

	 	 	 	 

(Sign exactly as name appears on the other
side of this Note)
	 	 






	 	 	 

	Signature Guarantee:

	 	                                                               
            
                        
	 

	 	Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)






F-18









 






SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE




          The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an
interest in this Global Note, have been made:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal Amount	 	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	of	 	 	Signature of	 
	 	 	in	 	 	in	 	 	this Global Note	 	 	authorized signa-	 
	 	 	Principal Amount	 	 	Principal Amount	 	 	following such de-	 	 	tory	 
	 	 	of	 	 	of	 	 	crease	 	 	of Trustee or Note	 
	Date of Exchange	 	this Global Note	 	 	this Global Note	 	 	(or increase)	 	 	Custodian	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






F-19











 





EXHIBIT “B”




MORTGAGE CONDITIONS




Article I — Certain Definitions



          As used in this Deed, the following terms shall have the meaning provided below and all other
terms used, but not otherwise defined herein, shall have the meanings provided therefore in the
Indenture.




          “brokers” means such insurance brokers appointed by the Shipowner;




          “Casualty Amount” means US dollars Three Million ($3,000,000) (or the equivalent amount in any
other currency or currencies);




          “Charter” means, at any relevant time and in relation to the Vessel, any charter party, pool
agreement or other employment contract relating to the Vessel whether now existing or hereinafter
entered into by the Shipowner or any person, firm or company on its behalf;




          “Classification Society” means, in relation to the Vessel, any classification society which is
a member of the International Association of Classification Societies (IACS) (or any successor
organisation thereof) or such other classification society which the Mortgagee shall, at the
request of the Shipowner, have agreed in writing shall be treated as the Classification Society in
relation to the Vessel for the purposes of the relevant Security Documents;




          “Compulsory Acquisition” means requisition for title or other compulsory acquisition,
requisition, appropriation, expropriation, deprivation, forfeiture or confiscation for any reason
of the Vessel by any government entity or other competent authority, whether de jure or de facto,
but shall exclude requisition for use or hire not involving requisition of title;




          “Contract of Affreightment” means any contract or engagement for the carriage or
transportation of cargo, mail or passengers or any of them relating to the Vessel whether now
existing or hereinafter entered into by the Shipowner or any person, firm or company on its behalf;




          “Default” means any Event of Default or any event or circumstance which with the giving of
notice or lapse of time or the satisfaction of any other condition (or any combination thereof)
would constitute an Event of Default;




          “Earnings” means, in relation to the Vessel, all moneys whatsoever from time to time due or
payable to the Shipowner during the period any Indebtedness remains unpaid, arising out of the use
or operation of the Vessel including (but without limiting the generality of the foregoing) all
freight, hire and passage moneys, income arising out of pooling arrangements, compensation payable
to the Shipowner in the event of requisition of the Vessel for hire, remuneration for salvage or
towage services, demurrage and detention moneys and damages for breach (or payment for variation or
termination) of any charterparty or other contract for the employment of the Vessel;




          “Encumbrance” means any mortgage, charge (whether fixed or floating), pledge, lien,
hypothecation, assignment, trust arrangement or security interest or other encumbrance of any kind
securing any obligation of any person or any type of preferential arrangement (including without
limitation title transfer and/or retention arrangements) having a similar effect;




F-20









 








          “Environmental Approval” means any consent, authorisation, licence or approval of any
governmental or public body or authorities or courts applicable to the Vessel or its operation or
the carriage of cargo and/or passengers thereon and/or the provision of goods and/or services on or
from the Vessel required under any Environmental Law;




          “Environmental Claim” means any and all material enforcement, clean-up, removal or other
governmental or regulatory actions or orders instituted or completed pursuant to any Environmental
Law or any Environmental Approval together with material claims made by any third party relating to
damage, contribution, loss or injury, resulting from any actual or threatened emission, spill,
release or discharge of a Pollutant from the Vessel;




          “Environmental Laws” means all national, international and state laws, rules, regulations,
treaties and conventions applicable to the Vessel pertaining to the pollution or protection of
human health or the environment including, without limitation, the carriage of Pollutants and
actual or threatened emissions, spills, releases or discharges of Pollutants;




          “excess risks” means the proportion of claims for general average and for salvage charges and
under the ordinary running-down clause not recoverable in consequence of the excess of the value at
which the Vessel is assessed for the purposes of such claims over her insured value;




          “Insurances” means all policies and contracts of insurances and all entries in a protection
and indemnity or war risks association which are now or may hereafter be taken out or effected in
respect of the Vessel, her freight, disbursement, profits or otherwise howsoever, and all the
benefits thereof including all claims whatsoever and returns of premia; provided, however, that
Insurances shall not include any policies of insurances issued to the Shipowner or for the
Shipowner’s benefit that provide coverage for a credit default by a charterer under any charter
party concerning the Vessel;




          “Insurers” means the underwriters or insurance companies with whom any Insurance is effected
and the manager of any protection and indemnity or war risks association in which the Vessel may at
any time be entered;




          “Loss Payable Clauses” means the provisions regulating the manner of payment of sums
receivable under the Insurances which are to be incorporated in the relevant insurance documents,
such provisions to be in the forms attached as Exhibit A to the Assignment of Insurance or in such
other forms as may from time to time be required or agreed in writing by the Mortgagee;




          “Obligatory Insurance” means any policy or contract of insurance and any entry in a protection
and indemnity or war risks association effected under or pursuant to Clause 2.01(a) hereof;




          “Pollutant” means and includes pollutants, contaminants, toxic substances, oil as defined in
the United States Oil Pollution Act of 1990 and all hazardous substances as defined in the United
States Comprehensive Environmental Response, Compensation and Liability Act 1980;




          “protection and indemnity risks” means the usual risks (including oil pollution and freight,
demurrage and defence cover) covered by a United Kingdom protection and indemnity association or a
protection and indemnity association which is managed in London (including, without limitation, the
proportion (if any) of any sums payable to any other person or persons in case of collision which
are not recoverable under the hull and machinery policies by reason of the incorporation in such
policies of clause 8 of the Institute Time Clauses (Hulls) (1/11/95) or the Institute Amended
Running Down Clause (1/10/71) or any equivalent provision);




F-21









 








          “Requisition Compensation” means the sum of money or other compensation from time to time
payable or paid by any person in connection with or by reason of requisition for title or other
compulsory acquisition of the Vessel otherwise than by requisition for hire or use;




          “Total Loss” means:





     (a) actual, constructive, compromised or arranged total loss of the Vessel; or




     (b) Compulsory Acquisition of the Vessel; or




     (c) the hijacking, theft, condemnation, capture, seizure, arrest, detention or
confiscation of the Vessel (other than where the same amounts to the Compulsory Acquisition
of the Vessel) by any government entity, or by persons acting or purporting to act on behalf
of any government entity, unless the Vessel be released and restored to the Shipowner from
such hijacking, theft, condemnation, capture, seizure, arrest, detention or confiscation
within six (6) months after the occurrence thereof; and



          “war risks” includes those risks covered by the standard form of English marine policy with
Institute War and Strikes Clauses Hulls — Time (1/11/95) attached or similar cover.




Article II — Covenants of the Shipowner




          1.01. The Shipowner will immediately pay, when due, the Indebtedness, represented by the
Indenture, the Notes, the Guarantees and the Security Documents, and will observe, perform and
comply with the covenants, terms and conditions herein and in the Indenture expressed or implied,
on its part to be observed, performed or complied with.




          1.02 The Shipowner represents and warrants to the Mortgagee that the Shipowner:





     (a) was duly organized and is now existing as a corporation under the laws of its
jurisdiction of incorporation and is duly authorized to mortgage the Vessel and all
corporate action necessary and required by law for the execution and delivery of this
Mortgage has been duly and effectively taken and this Mortgage is and will be a valid and
enforceable obligation of the Shipowner in accordance with its terms;




     (b) lawfully owns and is lawfully possessed of One Hundred per cent (100%) of the
Vessel free from any lien or other encumbrance whatsoever prior to the lien of the Mortgagee
under this Mortgage, except for liens for crew’s wages and other Permitted Liens (as defined
in the Indenture) and, subject to such liens, will warrant and defend the title and
possession thereof and to every part thereof for the benefit of the Mortgagee against the
claims and demands of all persons whomsoever;




     (c) has not heretofore assigned or pledged or in any other way encumbered the Earnings,
or the Requisition Compensation or any Charter or Contract of Affreightment or any part
thereof; and




     (d) is not in default in any material respect under any Charter or Contract of
Affreightment.



          1.03. The Shipowner shall at all times comply with and satisfy all of the applicable
provisions of the laws of the flag of the Vessel (including without limitation all rules and
regulations issued







F-22









 







thereunder) in order to maintain this Mortgage upon the Vessel and upon all renewals,
replacements and improvements made in or to the same. The Shipowner will take all such action and
execute all such instruments, as the Mortgagee may reasonably request from time to time in order to
give full effect to this Mortgage and to further assure to the Mortgagee the security and benefit
of this Mortgage and the right in rem and lien granted hereby. The Shipowner shall pay all
reasonable fees and expenses in connection with the foregoing.




          1.04. The Shipowner shall notify the Mortgagee forthwith by fax, thereafter confirmed by
letter, of:





     (a) any damage to the Vessel requiring repairs the cost of which will exceed the
Casualty Amount;




     (b) any occurrence in consequence of which the Vessel has or may become a Total Loss;




     (c any requisition of the Vessel for hire;




     (d) any requirement or recommendation made by any insurer or Classification Society or
by any competent authority which is not, or cannot be, complied with in accordance with its
terms and within such time periods and any extensions thereof set by such insurer or
Classification Society;




     (e) any exercise of a lien or other claim on the Earnings or Insurances or any part
thereof;




     (f) any petition or notice of meeting to consider any resolution to wind-up the
Shipowner (or any event analogous thereto under the laws of the place of its incorporation);




     (g) the occurrence of any Default; and




     (h) the occurrence of any Environmental Claim against the Shipowner or the Vessel, or
any incident, event, or circumstance which may give rise to any such Environmental Claim.



          1.05. The Shipowner shall take all necessary and proper precautions to prevent any
infringements of the Anti-Drug Abuse Act of 1986 of the United States of America or any similar
legislation applicable to the Vessel in any jurisdiction in or to which the Vessel shall be
employed or located or trade or which may otherwise be applicable to the Vessel and/or the
Shipowner and, if the Mortgagee shall so require, to enter into a “Carrier Initiative Agreement”
with the United States Customs and Border Protection and to procure that such agreement (or any
similar agreement hereafter introduced by any Government Entity of the United States of America) is
maintained in full force and effect and performed by the Shipowner.




          1.06. The Shipowner shall comply with all Environmental Laws in relation to the Vessel
including, without limitation, requirements relating to manning and establishment of financial
responsibility and to obtain and comply with, all Environmental Approvals in relation to the
Vessel.







F-23









 









     1.07 The Shipowner will:




     (a) promptly take all steps necessary or appropriate to preserve for the benefit of the
Shipowner and the Mortgagee their respective interests in each Charter or each Contract of
Affreightment;




     (b) promptly and diligently perform the obligations on its part contained in any
Charter or Contract of Affreightment, and, in the case of a default by any charterer or any
shipper under any Charter or Contract of Affreightment, institute and maintain all such
proceedings as may be reasonably necessary or expedient to preserve or protect the interest
of the Shipowner and the Mortgagee, in such Charter or Contract of Affreightment;




     (c) not assign, charge, pledge or otherwise create any encumbrances over the whole or
any part of its rights under any Charter or Contract of Affreightment or in respect of the
Requisition Compensation, in favor of anyone other than the Mortgagee,




     (d) not grant nor agree to any material waiver or release of any material obligation of
any charterer or any shipper under any such Charter or Contract of Affreightment;




     (e) not let the Vessel:




     (A) on demise charter for any period without the prior written consent of the
Mortgagee;




     (B) on terms whereby more than two (2) month’s hire (or the equivalent) is
payable in advance; or




     (C) on terms other than reasonable commercial terms or any non-arms’ length
terms; and




     (f) not enter into any agreement or arrangement whereby the Earnings may be shared with
any other person, without prior notice to the Mortgagee, except for agreements or
arrangements existing on the date hereof.



          1.08. The Shipowner will not cause or permit the Vessel to be operated in a manner contrary to
any material law, will not engage in any unlawful trade, or carry any cargo that will expose the
Vessel to penalty, confiscation, forfeiture, capture, condemnation and will not do or suffer or
permit to be done anything which will cause the loss of registration or enrollment of the Vessel
under the laws and regulations of its country of registry.




          1.09 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 unless the same shall be contested in good faith and by appropriate proceedings.




          1.10. In the event of requisition of the title or requisition of the use of the Vessel for a
period of longer than six (6) months, the Mortgagee shall be entitled to receive directly all
amounts payable to the Shipowner by reason of such requisition, such amounts to be applied to the
payment of any and all amounts becoming due and payable in respect of the Indebtedness and
crediting the Shipowner with the surplus, if any; and the Shipowner hereby irrevocably constitutes
and appoints the Mortgagee attorney-in-fact, to demand, collect and receive all amounts which may
become payable to the Shipowner by reason of such requisition. The Shipowner agrees to notify
promptly the Mortgagee and execute and




F-24









 




deliver to the Mortgagee promptly upon demand any and all documents and instruments which may
be necessary in order to put into effect and carry out the foregoing.




          1.11. Except for this Mortgage and Permitted Liens under the Indenture, the Shipowner shall
not have any right, power or authority to create, incur or permit to be placed or imposed or
continued upon the Vessel any liens, encumbrance, or charge on the Vessel for longer than forty
five (45) days after the same becomes due and payable.




          1.12. The Vessel shall, and the Shipowner covenants that she shall, at all times comply with
all applicable laws, treaties and conventions of the state of registration of the Vessel and rules
and regulations issued thereunder and shall have on board certificates showing compliance
therewith. The Shipowner shall do everything necessary under the laws of the state of registration
of the Vessel and the state of incorporation and/or of the domicile, as the case may be, of the
Shipowner for the purpose of perfecting and maintaining this Mortgage as a good and valid mortgage
and, in particular (but without prejudice to the generality of the foregoing), shall procure that a
notification of this Mortgage is delivered to or received by the Hong Kong Companies Registry, for
registration within five (5) weeks after the date of its creation, [and the Registry of Corporate
Affairs of the British Virgin Islands, promptly upon its creation,]7 and carry on board
the Vessel with the Vessel’s papers a properly certified copy of this Mortgage and exhibit the same
to any person having a legal interest therein, to any person having business with the Vessel and to
any representative of the Mortgagee and shall place and keep prominently displayed in the chartroom
and in the master’s cabin of the Vessel a framed printed notice in plain type reading as follows:




NOTICE OF MORTGAGE





“This Vessel is covered by a first Mortgage in favor of WELLS FARGO BANK, National
Association, as collateral trustee, under the terms of said Mortgage. Neither the Shipowner,
any charterer, the master of this Vessel nor any other person has any right, power or
authority to create, incur or permit to be imposed upon this Vessel any lien whatsoever
other than liens for crew’s wages and salvage.”



          1.13. If a libel 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 and not released within
fifteen (15) days, the Shipowner shall promptly notify the Mortgagee and within thirty (30) days
shall cause the Vessel to be released from any such attachment, levy or custody and shall promptly
notify the Mortgagee in writing of such release.




          1.14. The Shipowner shall at all times and without cost or expense to the Mortgagee:





     (a) maintain and preserve, or cause to be maintained and preserved, in all material
respects the Vessel in good running order and repair as will keep her 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 Lloyds Register of Shipping or such other Classification
Society and annually will furnish the Mortgagee a certificate by such Classification Society
that such classification is maintained. The Shipowner will promptly furnish to the Mortgagee
full information in respect of





 




			
	7	 	Language to be included only in the mortgage of M/T SHINYO SAOWALAK which is owned by a BVI company.





F-25









 






any casualty or other accident or damage to the Vessel involving an amount estimated by
the Shipowner as likely to be in excess of the Casualty Amount.




     (b) submit the Vessel to continuous surveys and such periodical or other surveys as may
be required for classification purposes and to supply to the Mortgagee upon request copies
of all survey reports issued in respect thereof;




     (c) ensure that the Mortgagee, by surveyors or other persons appointed by it for such
purpose (but at the expense of the Shipowner), may board the Vessel at all reasonable times
for the purpose of inspecting her and to afford all proper facilities for such inspections;




     (d) deliver to the Mortgagee upon request but no more than once during any twelve (12)
month period, a report prepared by surveyors or inspectors appointed by the Mortgagee, in
relation to the seaworthiness and safe operation of the Vessel, produce evidence to the
Mortgagee that any recommendations made in such reports have been complied with or will be
complied with in accordance with their terms, in full and thereafter procure that such
recommendations are so complied with;




     (e) not without the prior written consent of the Mortgagee to, or suffer any other
persons to:




     (i) make any modification to the Vessel in consequence of which her structure,
type or performance characteristics could or might be materially altered or her
value materially reduced; or




     (ii) remove any material part of the Vessel or any equipment the value of which
is such that its removal from the Vessel would materially reduce the value of the
Vessel without replacing the same with equivalent parts or equipment which are owned
by the Shipowner free from Encumbrances; or




     (iii) install on the Vessel any equipment owned by a third party which cannot
be removed without causing material damage to the structure or fabric of the Vessel.



          1.15. Save for affiliates of the Co-Issuers and/or the Shipowner and/or Vanship Holdings
Limited, and/or Navios Tankers Management Inc. and/or Navios Maritime Holdings Inc. and/or any
affiliates of the aforesaid companies, the Shipowner shall not appoint any person, firm or company
to act as manager or managers of the Vessel unless the Mortgagee shall have first given its written
approval to such appointment, which approval shall not be unreasonably withheld, and to the
material terms of the management contract and no alteration to such material terms shall be made
without the prior written approval of the Mortgagee.




          1.16. The Shipowner will from time to time upon the request of the Mortgagee deliver for
inspection copies of any and all contracts and documents relating to the Vessel, whether on board
or not and upon the request of the Mortgagee, will give the Mortgagee all other reasonable
information regarding the Vessel, her employment, position and engagements.




          1.17. Except as permitted under the Indenture and the Security Documents, the Shipowner will
not transfer or change the flag or port of documentation of the Vessel, or sell, transfer, mortgage
or demise charter the Vessel without the written consent of the Mortgagee first had and obtained,
which consent shall be granted for flags that are approved by the terms of the Indenture.







F-26









 








          1.18. The Shipowner, at its own cost and expense, shall insure the Vessel and keep the same
insured in accordance with the terms stipulated in Article II below.




          1.19. The Shipowner will not cause or permit the Vessel to undertake a voyage to or to sail in
any area which has been declared a war area by the relevant underwriters and insurance companies
and has been included in the list in effect from time to time of exclusions attached to the war
risks insurance policies in the form of war risks trading warranties, without first notifying
thereof the war risks underwriters of the Vessel and paying any additional insurance premiums
required.




          1.20. The Shipowner shall pay to the Mortgagee on demand, together with interest at the rate
applicable from time to time to the overdue portion of the Indebtedness, all monies whatsoever
which the Mortgagee shall or may reasonably expend or become liable for in or about the protection,
maintenance or enforcement of the security created by this Mortgage or in or about the exercise by
the Mortgagee of any of the powers vested in it hereunder and in particular, but without
limitation as to the generality of the foregoing, in respect of discharge or purchase of liens,
lifting or arrest (whether enforced or conservative), taxes (including taxes in connection with or
incidental to the registration of this Mortgage), dues, assessments, governmental charges, fines
and penalties lawfully imposed, repairs, attorney’s fees and out-of-pocket expenses and other
matters which the Shipowner is obligated herein to provide but fails to provide. The Mortgagee,
though privileged so to do, shall be under no obligation to the Shipowner to make any such
expenditures, nor shall the making thereof relieve the Shipowner of the consequences of any Event
of Default (as hereinafter defined). Such obligation of the Shipowner to reimburse the Mortgagee
shall be an additional indebtedness of the Shipowner secured by this Mortgage.




Article II — Insurance




          2.01. The Shipowner covenants that it will at all times:





     (a) insure and keep the Vessel insured free of cost and expense to the Mortgagee and in
the name of Belindtha Marine Ltd and/or Univan Ship Management Limited, the current
technical managers of the Vessel (the “Current Technical Managers”), the Manager (Navios
Tankers Management Inc.) or other subsidiaries of Navios Maritime Holdings Inc. and/or name
of Shipowner:




     (i) against fire and usual marine risks (including excess risks) and war risks,
on an agreed value basis, according to English or American or Norwegian hull clauses
or any other similar clauses with a reasonable deductible (but in no event in excess
of US Dollars One Million ($1,000,000), for an amount in US dollars not less than
the fair market value of the Vessel, and upon such terms as shall from time to time
be approved in writing by the Mortgagee; Provided that if and when the Vessel is
laid up, in lieu of such Insurances as contemplated in this clause 2.01(a), the
Shipowner may keep such Vessel insured under a policy of port or lay up risk
insurance;




     (ii) against protection and indemnity risks (including pollution risks for the
highest amount in respect of which cover is or may become available for vessels of
the same type, size, age and flag as the Vessel and a freight, demurrage and defence
cover) for the full value and tonnage of the Vessel; and




     (iii) in respect of such other matters of whatsoever nature and howsoever
arising in respect of which insurance would be maintained by a prudent owner of a
vessel of the same type and age as the Vessel;



F-27









 




and to pay to the Mortgagee the cost (as conclusively certified by the Mortgagee) of any
mortgagee’s interest insurance (including, if the Mortgagee shall so require, mortgagee’s
additional perils (including all P&I risks) coverage) which the Mortgagee may from time
to time effect in respect of the Vessel, upon such terms and in such amounts as the Mortgagee shall
deem desirable;





     (b) effect the insurances aforesaid in US Dollars and through the brokers (other than
the said mortgagee’s interest insurance which shall be effected through brokers nominated by
the Mortgagee, if so requested by the Mortgagee) and with reputable and recognized
creditworth insurance companies and/or underwriters; provided however that the insurances
against war risks and protection and indemnity risks may be effected by the entry of the
Vessel with reputable and recognized creditworth war risks and protection and indemnity
associations;




     (c) punctually to pay all premiums, calls, contributions or other sums payable in
respect of all such insurances and to produce all relevant receipts or other evidence of
payment when so required by the Mortgagee;




     (d) at least twenty one (21) days before the relevant policies, contracts or entries
expire, notify the Mortgagee of the names of the brokers proposed to be employed by the
Shipowner or any other party for the purposes of the renewal of such insurances and of the
amounts in which such insurances are proposed to be renewed and the risks to be covered and,
subject to compliance with any requirements of the Mortgagee pursuant to this clause 2.01,
procure that appropriate instructions for the renewal of such Insurances on the terms so
specified are given to the brokers and/or to the war risks and protection and indemnity
associations at least three (3) days before the relevant policies, contracts or entries
expire, and that the brokers and/or the approved war risks and protection and indemnity
associations will at least one (1) day before such expiry (or within such shorter period as
the Mortgagee may from time to time agree) confirm in writing to the Mortgagee as and when
such renewals have been effected in accordance with the instructions so given;




     (e) arrange for the execution and delivery of such guarantees or indemnities as may
from time to time be required by any protection and indemnity or war risks association;




     (f) deposit with the brokers (or procure the deposit of) all slips, cover notes,
policies, certificates of entry or other instruments of insurance from time to time issued
in connection with such of the insurances referred to in clause 2.01(a) as are effected
through the brokers and procure that the interest of the Mortgagee shall be endorsed thereon
by incorporation of the relevant Loss Payable Clause and, where the insurances have been
assigned to the Mortgagee, by means of a Notice of Assignment of Insurances (in the form
attached as Exhibit A to the Assignment of Insurance and signed by the Shipowner or such
other form as may be agreed to by the Mortgagee and by any other assured who shall have
assigned its interest in the insurances to the Mortgagee) and that the Mortgagee shall be
furnished with pro forma copies thereof and a letter or letters of undertaking from the
approved brokers in such form as shall from time to time be required by the Mortgagee;




     (g) procure that any protection and indemnity and/or war risks associations in which
the Vessel is for the time being entered shall endorse the relevant Loss Payable Clause on
the relevant certificate of entry or policy and shall furnish the Mortgagee with a copy of
such certificate of entry or policy and a letter or letters of undertaking in such form as
may from time to time be required by the Mortgagee;



F-28









 






     (h) take all necessary action and comply with all requirements which may from time to
time be applicable to the Insurances (including, without limitation, the making of all
requisite declarations within any prescribed time limits and the payment of any additional
premiums or calls) so as to ensure that the Insurances are not made subject to any
exclusions or qualifications which are not customary for vessels of the same or similar type
as the Vessel and engaged in business that the Vessel is ordinarily engaged in or would
impair the Mortgagee’s rights to the Insurance;




     (i) provide to the Mortgagee upon request, copies of all written communications between
the Shipowner and the brokers and approved war risks and protection and indemnity
associations which relate to compliance with requirements from time to time applicable to
the Insurances including, without limitation, all requisite declarations and payments of
additional premiums or calls referred to in clause 2.01(h);




     (j) do all things necessary and provide all documents, evidence and information
reasonably requested by the Mortgagee to enable the Mortgagee to collect or recover any
moneys which shall at any time become due in respect of the Insurances; and




     (k) not employ the Vessel or suffer the Vessel to be employed otherwise than in
conformity with the terms of the Insurances (including any warranties express or implied
therein) without first obtaining the consent of the insurers to such employment and
complying with such requirements as to extra premium or otherwise as the insurers may
prescribe.



          2.02. The Shipowner also covenants that:




          (a) without prejudice to the generality of the foregoing:





     (A) the insurances taken out pursuant to clause 2.01(a)(i) shall be on a full
cover or all risks cover basis, according to either English or American or Norwegian
or Codex 2006 hull clauses or such other generally accepted hull clauses used by
prudent shipowners of the same type of vessel as the Vessel with only reasonable
deductibles, in no event shall such deductibles be in excess of US Dollars One
Million ($1,000,000);




     (B) the insurances taken out pursuant to clause 2.01(a)(ii) shall be according
to London Institute War Clauses or such other generally accepted war clauses used by
prudent shipowners of the same type of vessel as the Vessel, attaching also the
so-called War Protection Clause, and the Shipowner shall be required to insure
separately crew war liabilities; and




     (C) if any crew liabilities have been entirely excluded from protection and
indemnity association cover or insured on a deductible/excess basis, such
liabilities shall be further separately insured;




     (b) if the Shipowner insures the Vessel with a self-insurance or mutual insurance
schemes or any of the Obligatory Insurances are placed with an insurance company which the
Mortgagee reasonably determines to be captive insurance company, then if the Mortgagee so
requires, the Shipowner will ensure that such captive insurance company or mutual insurance
scheme (A) reinsures the risks, and (B) assigns to the Mortgagee its rights, title and
interest in and to such reinsurance policies; and



F-29









 






     (c) it is hereby agreed that if the Shipowner fails to take out or maintain any
insurance required to be effected by it pursuant to clause 2.01, the Mortgagee on behalf of
the Shipowner, may (but shall not be bound to) effect any such insurance (without prejudice
to any other right of the Mortgagee arising hereunder, under the Indenture, the Notes, the
Guarantee or under the other Security Documents by reason of such default) and the Shipowner
will on demand pay to the Mortgagee the amount of any payment made in connection therewith,
together with interest thereon at the rate specified in the Notes from the date of payment
was made to the date of receipt.




     2.03 The Shipowner:




     (a) forthwith upon the effecting of any Obligatory Insurances, will give written notice
thereof to the Mortgagee stating the full particulars (including the dates and amounts)
thereof;




     (b) will cause the brokers and the managers of any protection and indemnity or war
risks association in which the Vessel may be entered:




     (A) to hold to the order of the Mortgagee the original of all policies,
contracts, binders, insurance slips, cover notes and certificates of entry relating
to the Vessel, and to deliver certified copies thereof to the Mortgagee on its
request; and




     (B) to agree to advise the Mortgagee promptly in writing:




     (1) if any underwriter, insurance company or protection and indemnity
or war risks association cancels any Obligatory Insurance;




     (2) of any alteration to any Obligatory Insurance or any default in the
payment of any premium, call or contribution or any failure to renew any of
the Insurances at least twenty one (21) days before its expiry; and




     (3) of any other act, omission or event of which they have knowledge
which would or might render invalid or unenforceable any of the Obligatory
Insurances in whole or in part;




     (c) represents and warrants that it has not heretofore assigned, charged or pledged the
Insurances in whole or in part, and will not hereafter assign, charge or pledge the
Insurances in whole or in part to anyone other than the Mortgagee ;




     (d) will not settle, compromise or abandon any claim under any of the Obligatory
Insurances other than a claim of less than US Dollars Three Million ($3,000,000) and not
being a claim arising out of the total loss of the Vessel;




     (e) if and whenever any of the Obligatory Insurances comes into effect, will give
written notice thereof to the Mortgagee stating the full particulars (including the dates
and amounts) thereof; and




     (f) will, without expense to the Mortgagee, make all proofs of loss and take any and
all other steps necessary to effect collection from brokers, underwriters or protection and
indemnity or war risk associations of any loss under any Insurance and shall do all things
necessary and provide all documents, evidence and information to enable the Mortgagee to
collect or recover any moneys which shall at any time become due in respect of the
Insurances.



F-30









 






     2.04. Until the occurrence of an Event of Default:




     (a) any claim under any such insurance (other than in respect of actual or constructive
or arranged or compromised total loss) whether such claim is under the terms of the relevant
loss payable clause payable directly to the Current Technical Managers , the Manager (Navios
Tankers Management Inc.) or other subsidiaries of Navios Maritime Holdings Inc. and/or the
Shipowner or not, shall be applied by the Current Technical Managers , the Manager (Navios
Tankers Management Inc) or other subsidiaries of Navios Maritime Holdings Inc. and/or the
Shipowner in making good the loss or damage in respect of which it has been paid or paid to
the Shipowner in reimbursement of moneys expended by it for such purpose, in each case in an
manner consistent with the terms of the Indenture;




     (b) any claim in respect of protection and indemnity insurance shall be paid directly
to the person, firm or company to which the liability covered by such insurance was incurred
or the Current Technical Managers or the Manager (Navios Tankers Management Inc.) or other
subsidiaries of Navios Maritime Holdings Inc. and/or the Shipowner in reimbursement of
moneys expended in satisfaction of such liability;




     (c) the Mortgagee shall promptly consent to the payment to the Current Technical
Managers or the Manager (Navios Tankers Management Inc.) or other subsidiaries of Navios
Maritime Holdings Inc. and/or the Shipowner of any claim under any of the Obligatory
Insurances, upon receipt by the Mortgagee of a written undertaking by the Shipowner to apply
such payment as provided herein in this clause 2.04.



          2.05. Any claim under any such insurance and entry in respect of actual or constructive or
arranged or compromised total loss shall be paid to the Mortgagee to be applied in accordance with
the terms of the Indenture.




          2.06. Upon the occurrence of an Event of Default, any claim under any such insurance and entry
will be paid to the Mortgagee and will be applied by the Mortgagee in accordance with the terms of
the Indenture.




Article III — Events of Default and Remedies of the Mortgagee




          3.01. The following events, herein called “Events of Default” (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be affected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body), constitute Events of Default under this Mortgage:




          (a) If any Event of Default (as defined in the Indenture) shall occur under the terms
of the Indenture, the Notes or the Guarantees; or




     (b) If the Shipowner fails to perform or observe the terms, covenants or provisions
contained in this Mortgage and such failure shall continue unremedied for a period
exceeding thirty (30) days after written notice thereof is provided by the Mortgagee to the
Shipowner; or




     (c) if any concerned governmental authority shall refuse or shall fail to deliver any
required consent or approval to any of the transactions or instruments described or
contemplated by this Mortgage in respect of the Shipowner or any Guarantor or if any such
governmental authority shall terminate or shall suspend any consent or approval heretofore
granted by such governmental authority or if any exchange control or other law or regulation
of the state of registration


F-31









 







of the Vessel or any other country or political subdivision of any thereof shall
exist which makes any transaction under this Mortgage or the continuation thereof unlawful
or would prevent the performance of any term of this Mortgage or of any instrument delivered
in connection herewith; or





     (d) if the Vessel shall be libeled or levied upon or taken by virtue of any attachment
or execution or conservative arrest or seized by any judicial, governmental or other
authority and shall not be released from such libel, levy, attachment, execution,
conservative arrest or seizure within thirty (30) days from such event; or




     (e) if the Shipowner shall do or omit, or cause to be done or omitted, any act or shall
incur or cause to be incurred any expense which shall imperil the security of the Mortgagee
created by this Mortgage or the registration of the Vessel under the laws of the state of
registration of the Vessel;




     (f) if the Shipowner or any competent governmental authorities take steps to have the
Vessel flagged in a jurisdiction not permitted be the terms of this Mortgage; or




     (g) if any account, bill, charge, claim, bottomry bond or other document shall come
into existence in respect of the Vessel or any share therein which the Mortgagee may be
called upon to take up or which it may think necessary or advisable to take up or which may
confer upon the holder thereof a maritime lien or any other claim upon the Vessel, or any
share therein, in priority to the claim of the Mortgagee hereunder other than any applicable
Permitted Lien and such lien is not removed from the Vessel within sixty (60) days after
the Shipowner or the Current Technical Managers , the Manager (Navios Tankers Management
Inc.) or other subsidiaries of Navios Maritime Holdings Inc. becomes aware of such lien; or




     (h) if contrary to the entry in the appropriate ships registry, the Shipowner is not
the owner of the Vessel or any share therein or if its ownership is the subject of a final
non-appealable judgment determined in a manner adverse to the Shipowner or the rank or
validity of the Mortgage entered in favor of the Mortgagee is the subject of a final
non-appealable judgment determined in a manner adverse to the Mortgagee; or




     (i) the state of the flag of the Vessel becomes involved in hostilities or civil war or
there is a seizure of power in such state by unconstitutional means and such hostilities,
civil war or seizure of power affects the registration of the Vessel or the enforceability
of this Mortgage; or




     (j) the Shipowner fails to comply with any Environmental Law or any Environmental
Approval or the Vessel is involved in any incident which gives rise or may give rise to an
Environmental Claim.



          3.02. In case any one or more Events of Default shall have occurred and be continuing, then,
in each and every such case the Mortgagee will have the right to, upon written notice of such Event
of Default to the Shipowner and failure by the Shipowner to cure such Event of Default within five
(5) days after such notice, and subject to the terms of Indenture and this Mortgage, without notice
or further demand, immediately to put into force and exercise all the powers and remedies possessed
by it according to law as mortgagee and chargee of the Vessel and in particular but without
limitation as to the generality of the foregoing:





     (a) declare immediately due and payable all of the Notes (in which case all of the same
shall be immediately due and payable together with accrued interest until the date of the



F-32









 







actual payment, such interest to be computed at the default interest specified in the
Indenture), and bring suit at law, in equity or in admiralty, as it may be advised, to
recover judgment for the Notes and collect the same out of any and all property of the
applicable Co-Issuer or the Shipowner, whether covered by this Mortgage or otherwise;




     (b) exercise all of the rights and remedies in foreclosure and otherwise given to
mortgagees by the provisions of applicable law;




     (c) take and enter into possession of the Vessel, at any time, wherever the same may
be, without court decision or other legal process and without being responsible for loss or
damage and the Mortgagee may, without being responsible for loss or damage, hold, lay up,
lease, charter, operate or otherwise use the Vessel for such time and upon such terms as it
may deem to be for its best advantage, and demand, collect and retain all hire, freights,
earnings, issues, revenues, income, profits, return of premiums, salvage awards or
recoveries, recoveries in general average, 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,
accounting only for the net profits, if any, arising from such use of the Vessel and
charging upon all receipts from use of the Vessel or from the sale thereof by court
proceedings or by private sale hereunder all costs, expenses, charges, damages or losses by
reason of such use, and if at any time the Mortgagee shall avail itself of the right herein
given to it to take the Vessel: (i) the Mortgagee shall have the right to dock the Vessel
for a reasonable time at any dock, pier or other premises of the Shipowner without charge,
or to dock the Vessel at any other place at the cost and expense of the Shipowner, and (ii)
the Mortgagee shall have the right to require the Shipowner to deliver, and the Shipowner
shall on demand, at its own cost and expense, deliver to the Mortgagee the Vessel as
demanded; and (iii) the Shipowner hereby irrevocably instructs the master of the Vessel so
long as this Mortgage is outstanding to deliver the Vessel to the Mortgagee as demanded;




     (d) sell the Vessel or any share therein with or without the benefit of any
charterparty or other engagement by public auction or private contract without legal process
at any place in the world and upon such terms as the Mortgagee in its absolute discretion
may determine with power to postpone any such sale and without being answerable for any loss
occasioned by such sale or resulting from the postponement thereof and at any such public
auction the Mortgagee may, at its option, become the purchaser of the Vessel on behalf of
the holders of the Notes, and shall have the right to set off the purchase price against the
Indebtedness. Any sale of the Vessel or any share therein made by the Mortgagee in pursuance
of this Mortgage, whether under the power of sale granted in this provision or the power of
attorney granted in sub-paragraph (a) of clause 3.03 below, or any judicial proceedings
shall operate to divest all title, right and interest of any nature whatsoever of the
Shipowner therein and thereto and shall bar the Shipowner, its successors and assigns, and
all persons claiming by, through or under them. Upon any such sale, the purchaser shall not
be bound to see or inquire whether the Mortgagee’s power of sale has arisen in the manner
herein provided and the sale shall be within the power of the Mortgagee and the receipt of
the Mortgagee for the purchase money shall effectively discharge the purchaser who shall not
be concerned with the manner of application of the proceeds of sale or be in any way
answerable or otherwise liable therefore.



          3.03. The Shipowner hereby irrevocably (because such appointment is also to the interest of
the Mortgagee) appoints the Mortgagee its attorney-in-fact with full power in the name of the
Shipowner:







F-33









 









     (a) to sell and transfer the Vessel or any share therein, to make a good conveyance of
the title to the Vessel so sold and to execute and deliver to any such purchaser a legal
bill of sale of the Vessel and any and all other documents, instruments and writings
necessary or advisable for such sale and transfer;




     (b) to demand, collect, receive, compromise and sue 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
of premiums or otherwise, salvage awards and recoveries in general average or otherwise, and
all other sums due or to become due at the time of the happening of any Event of Default 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 the Shipowner acquaintances, receipts, releases
or other discharges for the same, whether under seal or otherwise, and to endorse and accept
in the name of the Shipowner all checks, notes, drafts, warrants, agreements and other
instruments in writing with respect to the foregoing; and




     (c) to appear in the name of the Shipowner its successors and 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, or any share therein, from which the
Vessel has not been released and to take such proceedings as to it may seem proper towards
the defense of such suit and the purchase or discharge of such lien : and all reasonable
expenditures made or incurred by it for the purpose of such defense or purchase or discharge
shall be a debt due from the Shipowner, its successors and assigns, to the Mortgagee secured
by this Mortgage secured by this Mortgage in like manner and extent as if the amount and
description thereof were written herein;



          Provided however that the Mortgagee shall not exercise the power contained in this clause
3.03, unless and until the Indebtedness shall have become immediately due and payable pursuant to
clause 3.01 above. The exercise of such power by the Mortgagee shall not put any person dealing
with it, including, without limitation, any master or charterer or purchaser of the Vessel and/or
ships registrar of government authority, upon any inquiry as to whether the Indebtedness shall have
become immediately due and payable as aforesaid, nor shall any such person be in anywise affected
by notice to the contrary and the exercise by the Mortgagee of this power shall be conclusive
evidence of its right to exercise the same.




          3.04. Upon the occurrence and during the continuance of an Event of Default and after the
Indebtedness represented by the Notes, has become immediately due and payable, the Mortgagee may
from time to time appoint in writing any person to be a receiver of the Vessel and may from time to
time in writing remove any receiver so appointed and appoint another in his place. A receiver so
appointed shall be the receiver of the Shipowner and the Shipowner shall be solely responsible for
his acts and defaults and remuneration. Such receiver shall have the power to exercise all or any
of the powers conferred on the Mortgagee by law and by this Mortgage. The Shipowner hereby
irrevocably appoints any receiver, appointed as aforesaid, its attorney for and in its name and on
its behalf and as its act and deed to execute, seal and deliver and otherwise perfect any
assurance, agreement, instrument or act which may be required or may be deemed proper for any of
the purposes hereof. The net proceeds of sale and all other monies received by the receiver shall
be applied by it, subject to the claims of all secured creditors (if any) ranking in priority to
this security, as provided in the Indenture.




          3.05. The powers conferred upon the Mortgagee by this Mortgage are and shall be in addition to
and not to the prejudice of all statutory and other powers (whether of sale, appointment of a
receiver or otherwise) conferred upon mortgagees and may be exercised by it without restriction and
at






F-34









 







such times (with or without notice) and in such manner as the Mortgagee in its sole discretion
may think fit




          3.06. The exercise by the Mortgagee or any receiver, referred to in clause 3.04 above, of any
power, power of attorney, right or remedy granted to any of them hereunder shall not put any person
dealing with them (including without limitation any master or purchaser or charterer of the Vessel
and/or any ships registrar or government authority) upon any inquiry as to whether notice has been
given or any Event of Default has occurred or as to the propriety of any sale or charter of the
Vessel or as to the application of the proceeds thereof, nor shall any such person be in anywise
affected by notice to the contrary and the exercise by the Mortgagee or any such receiver of any
power, power of attorney, right or remedy hereunder shall be conclusive evidence of its right to
exercise the same.




          3.07. No delay or omission by the Mortgagee in the exercise of any right or power or in the
pursuance of any remedy accruing upon any and all Events of Default shall impair any such right,
power or remedy or be construed to be a waiver of any such Event of Default or to be an
acquiescence therein; nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercises thereof or the exercise of any such right, power or remedy
hereunder; nor shall the acceptance by the Mortgagee of any security or any payment of or on
account of the Indebtedness after any Event of Default or of any payment on account of any past
Event of Default be construed to be a waiver of any right to take advantage of any future Event of
Default or of any past Event of Default not completely cured thereby. No modification or waiver of
any provision hereof nor consent to any departure herefrom by any party hereto shall in any event
be effective unless the same shall be in writing and then such waiver or consent shall be effective
only on the specific instances and for the purpose for which given.




          3.08. In case the Mortgagee shall have proceeded to enforce any right, power or remedy under
this Mortgage by foreclosure, entry or otherwise and such proceedings shall have been discontinued
or abandoned for any reason or shall have been determined adversely to the Mortgagee, then and in
every such case the Shipowner and the Mortgagee shall be restored to their former positions and
rights hereunder with respect to the Vessel and all rights, remedies and powers of the Mortgagee
shall continue as if no such proceedings had been taken.




          3.09. The Shipowner hereby empowers the Mortgagee to apply any credit balance from time to
time standing upon any account of the Shipowner with the Mortgagee in or towards satisfaction of
the Indebtedness represented by the Indenture, the Notes, the Guarantees and the Security Documents
and in the name of the Mortgagee or of the Shipowner or any of them to do all such acts and execute
all such documents as may be required to effect such application.




          3.10. The Shipowner hereby further covenants with the Mortgagee that the Shipowner will from
time to time at the request in writing of the Mortgagee do all such things and execute all such
documents as the Mortgagee may consider reasonably necessary or desirable for giving full effect to
the Mortgage or for securing the rights of the Mortgagee hereunder.




          3.11. The proceeds of any sale, requisition or taking of the Vessel and the net earnings from
any management, charter or other use of the same by the Mortgagee under any of the powers herein
specified and any and all other monies received by the Mortgagee pursuant to and under the terms of
this Mortgage or in any proceedings hereunder, the application of which has not elsewhere herein
been specifically provided for, shall be applied by the Mortgagee as provided in the Indenture.







F-35









 








          In the event that the proceeds are insufficient to pay the amount payable to anyone other than
the Shipowner, as provided in the Indenture, the Mortgagee shall be entitled to collect the balance
from the Shipowner or any other person liable therefore.




          3.12. Until one or more of the Events of Defaults shall happen and the Mortgagee shall have
served notice on the Shipowner that the Notes are immediately due and payable, the Shipowner:





     (a) shall be suffered and permitted to retain actual possession and use of the Vessel;
and




     (b) shall have the right, from time to time, in its discretion and without obtaining a
release thereof by the Mortgagee, to dispose of, free from the lien hereof any boilers,
engines, machinery, masts, spars, sails, rigging, boats, anchors, cables, chains, tackle,
apparel, furniture, fittings or equipment or any other appurtenances of the Vessel that are
no longer useful, necessary, profitable or advantageous in the operation of the Vessel,
first or simultaneously replacing the same by new boilers, engines, machinery, mast spars,
sails, rigging, boats, anchors, cables, chains, tackle, apparel, furniture fittings,
equipment or other appurtenances of at least substantially equal value to the Shipowner,
which shall forthwith become subject to the lien of this Mortgage.



          3.13 If at any time after an Event of Default and prior to the actual sale of the Vessel by
the Mortgagee as preferred mortgagee hereunder or prior to any foreclosure proceedings, the
Shipowner offers completely to cure all Events of Default and to pay all reasonable expenses,
advances and damages to the Mortgagee consequent on such Events of Default with interest, at the
default interest rate as provided in this Mortgage, the Mortgagee shall subject to the terms of the
Indenture, accept such offer and payment and restore the Shipowner to its former position, but such
action shall not affect any subsequent Event of Default or impair any rights of the Mortgagee
consequent thereon.




          3.14. In addition to any other provisions hereof for the enforcement of the rights of the
Mortgagee under this Mortgage, the Mortgagee may, at its opinion, upon the occurrence of an Event
of Default and after serving notice on the Shipowner that the Notes are immediately due and payable
bring:





     (a) an action, suit or other proceeding in rem against the Vessel to foreclose the
Mortgage and sell the Vessel in any court of any country in which the Vessel may be found,
and/or




     (b) an action, suit or other proceeding in personam against the Shipowner and/or any
person obligated to the Mortgagee in connection with the Indebtedness to recover payment
thereof and interest, charges and expenses and/or to foreclose this Mortgage and sell the
Vessel in any court in any country in which the Vessel or the Shipowner or any person
liable may be found; and for the purpose of conferring jurisdiction on any such court in any
country the Shipowner hereby irrevocably submits itself and the Vessel to the jurisdiction
of any court in any country wherein the Vessel may be located at any time of an Event of
Default hereunder, and to all proceedings in the courts of said country or place, instituted
by the Mortgagee and the Shipowner irrevocably appoints the master and the charterer for the
time being of the Vessel and the Shipowner of the Vessel for the time being at any port as
the Shipowner and representatives of the Shipowner, upon any one of whom service of process
may be made in any legal action, suit or proceeding in any such court. Notice of the
commencement of any such suit, action or proceeding shall be promptly given by the Mortgagee
to the Shipowner.








F-36









 











          3.15. All the covenants, promises, stipulations and agreements of the Shipowner contained in
this Mortgage shall bind the Shipowner and its successors and permitted assigns, and all the
covenants, promises, stipulations and agreements of the Mortgagee contained in this Mortgage shall
inure to the benefit of the Mortgagee and its successors and assigns, whether so expressed or not.




          3.16. Any provision of this Mortgage which is prohibited or unenforceable by reason of any
present or future law in any jurisdiction or court shall, as to such jurisdiction or court, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction or
court shall not invalidate or render unenforceable such provision in any other jurisdiction or
court. The Shipowner further agrees that, in the event that this Mortgage or any provisions herein
shall be deemed invalidated in whole or in part by reason of any present or future law or any
decision of any authoritative court, or be deemed by the Mortgagee for any reason insufficient to
secure the Indebtedness, then from time to time the Shipowner will promptly upon demand by the
Mortgagee execute on its own behalf such other and further assurance and documents as in the
opinion of the Mortgagee’s counsel are reasonably necessary for the repayment of the Indebtedness
or the creation of the security hereby agreed to be given.





F-37











 





EXHIBIT G-1




[     
           
    ]

 






FORM OF ASSIGNMENT OF FREIGHTS AND HIRES



          THIS ASSIGNMENT made as of the __ day of [                    ], [          ], by [          ], a corporation organized and existing under
the laws of [          ] with registered
office situated at [                    ] [and registered as a non-Hong Kong company under
Part XI of the Companies Ordinance (Cap. 32) with principal place of business in Hong Kong at
15th Floor, Tower One, Lippo Centre, 89 Queensway, Admiralty, Hong
Kong8] (the “Assignor”), to [COLLATERAL TRUSTEE], with its office at [ADDRESS]
(together with each of its successors and assigns, the “Assignee”), as Collateral Trustee (as
defined in the Indenture referred to hereinafter) for its benefit and for the benefit of the
Holders of the Notes (as defined in the Indenture hereinafter defined), issued under that certain
Indenture dated as of [                    ], 2010 among Navios Maritime Acquisition
Corporation, a Marshall Islands corporation (the “Company”), [                    ] (“[          ]” and, together with the Company, the “Co-Issuers”), certain subsidiaries of the
Company, [TRUSTEE], as trustee, and the Collateral Trustee (the “Indenture”). Capitalized terms
used herein and not otherwise defined shall be used herein as defined in the Indenture.




          WHEREAS, the Guarantors have agreed to provide a guarantee of all of the obligations of the
Co-Issuers under or in respect of the Notes (the “Guarantees”).




          WHEREAS, the Assignor is a wholly-owned subsidiary of the Company that will provide a
Guarantee dated the date hereof.




          WHEREAS, the Co-Issuers and each Guarantor will materially benefit from the issuance of the
Notes and it is a condition to the issuance of the Notes under the Indenture that the Assignor
execute and deliver this Assignment as security for all of the obligations of the Assignor under
its Guarantee dated the date hereof, the payment of the principal of (and premium, if any) and
interest on the Notes (including, without limitation, any and all Additional Notes which may from
time to time be issued under the Indenture), the payment of all other sums of money payable by the
Co-Issuers under the Indenture, and the payment of all other sums of money payable by the Assignor
under this Assignment and the other Security Documents to which it is a party (collectively, the
“Obligations”), and to secure as well the performance and observance of all agreements, covenants
and provisions contained in this Assignment and the other Security Documents to which it is a
party, and of the Co-Issuers in the Indenture and the Security Documents.




          NOW, THERETOFORE, the Assignor agrees as follows:






 




			
	8	 	Language to be included only in the
Assignment of M/T SHINYOSAOWALAK which is owned by a BVI company and registered
as a non-Hong Kong company under Part XI of the Companies Ordinance (Cap. 32).




G-1-1









 










          1. Grant of Security. THE ASSIGNOR in consideration of One Dollar ($1.00) and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
DOES HEREBY ASSIGN, transfer and set over unto the Assignee, and as collateral security for
all amounts due and to become due in respect of the Obligations now or hereafter existing, does
hereby grant to the Assignee a security interest in all the right, title, interest, claim and
demand of the Assignor in and to (i) all charters (whether time or voyage charters, contract of
affreightment or otherwise, and all freights, hire and other moneys earned and to be earned, due or
to become due or, paid or payable to, or for the account of, the Assignor, of whatsoever nature,
arising out of or as a result of the use, operation or chartering by the Assignor or its agents of
the [    ] documented vessel [    ] Official No. [    ] (the “Vessel”),
including, without limitation, all rights arising out of the owner’s lien on cargoes and
subfreights thereunder, (ii) all moneys and claims for moneys due and to become due to the
Assignor, and all claims for damages, arising out of the breach of any and all present and future
charter parties, bills of lading, contracts and other engagements of affreightment or for the
carriage or transportation of cargo, and operations of every kind whatsoever of the Vessel and in
and to any and all claims and causes of action for money, loss or damages that may accrue or belong
to the Assignor, its successors or assigns arising out of or in any way connected with the present
or future use, operation or chartering of the Vessel or arising out of or in any way connected with
any and all present and future requisitions, charter parties, bills of lading, contracts and other
engagements of affreightment or for the carriage or transportation of cargo, and other operations
of the Vessel, (iii) all moneys and claims due and to become due to the Assignor, and all claims
for damages and all insurances and other proceeds, in respect of the requisition of use of or title
to the Vessel and (iv) any proceeds of any of the foregoing and all interest and earnings from the
investment of any of the foregoing and the proceeds thereof (collectively, the “Collateral”).




          2. Representations and Warranties. The Assignor hereby represents and warrants to the
Assignee, as an inducement to the Assignee to accept this Assignment, that as of the date hereof
(x) neither the whole nor any part of the right, title and interest hereby assigned is the subject
of any present assignment, security interest or pledge other than the present assignment for the
benefit of the Assignee and (y) neither the Company nor the Assignor has any office or place of
business located in the United States.




          3. Covenants. The Assignor hereby covenants to the Assignee that:





     (a) If an Event of Default has occurred and is continuing and the Assignee has given
the Assignor written notice thereof, and without derogation of the rights of the Assignee
under Section 5 hereof to issue instructions to the charterers and other obligors directly,
the Assignor shall specifically authorize and direct each charterer or other obligor to make
payment of all of the freights, hire and other moneys hereby assigned directly to the
Assignee in accordance with the terms of the Indenture, and shall deliver to the Assignee
the written acknowledgement of such charterer or other obligor of such instructions.
Notwithstanding anything herein to the contrary, the Assignor and the Assignee hereby agree
that so long as no Event of Default shall have occurred and be continuing, the Assignor
shall be entitled to exercise all its rights and remedies under the Collateral (subject to
the provisions of this Assignment) in all respects as if this Assignment had not been made,
including, without limitation, to receive and retain any and all moneys otherwise assigned
hereunder.




     (b) The Assignor shall notify the Assignee promptly of any and all time charter parties
or series of successive voyage charter parties or contract of affreightment entered into by
the Assignor respecting the Vessel having an indicated duration of at least twelve (12)
months (each a “Charter”) and, upon the Assignee’s request, any other charter party. The
Assignor shall also provide the Assignee with a true and complete copy of the agreements
specified in this paragraph



G-1-2









 







(b) upon the Assignee’s request. The Assignor shall execute a
specific assignment of its rights, titles and interests pursuant to any and all such Charters in the form attached hereto as
Exhibit A as promptly as possible after each such Charter has been entered into.




     (c) So long as this Assignment is in effect, the Assignor shall not assign, grant a
security interest in or pledge the whole or any part of the right, title and interest hereby
assigned to anyone other than the Assignee, its successors, endorsees and/or assigns without
the prior written consent of the Assignee and it shall not take or omit to take any material
action, the taking or omission of which might result in any alteration or impairment of this
Assignment or any of the rights created by this Assignment.




     (d) The Assignor covenants and agrees with the Assignee that the Assignor will duly
perform and observe all of the terms and provisions of any Charter, other charter or
contract of affreightment on the part of the Assignor to be performed or observed.




     (e) At any time and from time to time, upon the written request of the Assignee, the
Assignor shall promptly and duly execute and deliver any and all such further instruments
and documents as the Assignee may reasonably request in order to obtain the full benefits of
this Assignment and of the rights and powers herein granted.




     (f) Whenever requested by the Assignee, the Assignor shall deliver letters to each of
its agents and representatives into whose hands or control may come any earnings, moneys and
property hereby assigned, informing each such addressee of this Assignment and instructing
such addressee to remit or deliver promptly to the Assignee upon the occurrence and during
the continuance of an Event of Default and notice thereof given by the Assignee to the
Assignor, all earnings, moneys and property hereby assigned which may come into the
addressee’s hands or control and to continue to make such remittances or delivery until such
time as the addressee may receive written notice or instructions to the contrary direct from
the Assignee. Each such addressee shall acknowledge directly to the Assignee receipt of the
Assignor’s letter of notification and instructions.




     (g) The Assignor shall do everything necessary under the laws of its state of
incorporation and/or of its domicile, as the case may be, for the purpose of perfecting and
maintaining this Assignment as a good and valid Assignment and, in particular (but without
prejudice to the generality of the foregoing), shall procure that a notification of this
Assignment is delivered to or received by the Hong Kong Companies Registry, for registration
within five (5) weeks after the date of its creation [and, the Registry of Corporate Affairs
of the British Virgin Islands, promptly upon its creation.9]




     (h) If the Assignor or the Company establishes an office or place of business in the
United States, the Assignor shall give notice thereof to the Assignee not later than 30 days
after such establishment.





 




			
	9	 	Language to be included only in the
Assignment of M/T SHINYOSAOWALAK which is owned by a BVI company.




G-1-3









 










          4. Freedom of Assignee from Obligations; Liability of Assignor. It is hereby expressly agreed
that anything herein contained to the contrary notwithstanding, the Assignee shall have no
obligation or liability under any Charter, other charter or contract of affreightment by
reason of or arising out of this Assignment, nor shall the Assignee be required or obligated in any
manner to perform or to fulfill any obligations of the Assignor under or pursuant to any Charter,
other charter or contract of affreightment nor to make any payment, nor to make any inquiry as to
the nature or sufficiency of any payment received by the Assignee or to present or file any claim,
or to take any other action to collect or enforce the payment of any amounts which may have been
assigned to it or which it may be entitled to hereunder at any time or times. The liability of the
Assignor under this Assignment shall be subject to the provisions of Article 10 of the Indenture.




          5. Payment Directions to Charterers; Power of Attorney; Financing Statements. Upon the
occurrence and continuance of an Event of Default and issuance of notice thereof to the Assignor,
the Assignee shall be entitled to direct the charterers and other obligors to pay all moneys
assigned hereunder to the Assignee for deposit in the Collateral Account (as defined in the
Indenture) in New York City or elsewhere as the Assignee may from time to time designate. Upon
request of the Assignor, the Assignee shall furnish the Assignor with information from time to time
as to the Collateral Account into which moneys assigned hereunder are paid, the amounts and sources
of such payments and the amounts and application of moneys withdrawn therefrom. The Assignee, its
successors and assigns, are hereby constituted lawful attorneys of the Assignor, irrevocably, with
full power (in the name of the Assignor or otherwise) (such power of attorney becoming operative
only upon the occurrence and continuance of an Event of Default and the issuance of notice thereof
to the Assignor), to ask, require, demand, receive, compound and give acquittance for any and all
moneys, claims, property and rights hereby assigned, to endorse any checks or other instruments or
orders in connection therewith and to file any claims or take any action or institute any
proceedings which the Assignee may deem to be necessary or advisable in the premises. Any action
or proceeding brought by the Assignee pursuant to any of the provisions hereof or of any Charter,
other charter or contract of affreightment or otherwise, and any claim made by the Assignee
hereunder or under any Charter, other charter or contract of affreightment, may be compromised,
withdrawn or otherwise dealt with by the Assignee without any notice to, or approval of, the
Assignor. The Assignor hereby (a) irrevocably authorizes the Assignee, at the Assignor’s expense,
(i) to file, at any time and from time to time, this Assignment and/or such financing and
continuation statements or papers of similar purpose or effect relating to this Assignment for the
purpose of perfecting the Assignee’s security interests granted under this Assignment in any
relevant jurisdiction, without the Assignor’s signature, to the extent permitted by law in any
relevant jurisdiction, as the Assignee at its option may deem reasonably appropriate and (ii) to
file, upon request by the Co-Issuers or the Assignee, all lien releases, including, without
limitation, financings statement amendments or papers of similar purpose, without the Assignor’s
signature, to the extent permitted by law, that are necessary to release security interests
conferred hereby which are to be released in connection with the termination of this Assignment
pursuant to Section 11 hereof and (b) appoints the Assignee as the Assignor’s attorney-in-fact to
execute any such statements in the Assignor’s name and to perform all other acts which the Assignee
may deem appropriate to perfect, continue and release the security interests conferred hereby in
any relevant jurisdiction.




          6. Irrevocable Assignment. The powers and authority granted to the Assignee herein have been
given for a valuable consideration and are hereby declared to be irrevocable and may not be amended
or waived except by an instrument in writing signed by the party against whom enforcement is
sought.




          7. Governing Law. This Assignment shall be construed in accordance with and governed by the
laws of the State of New York, United States of America without regard to principles of conflicts
of laws. The Assignor hereby irrevocably submits itself to the non-exclusive jurisdiction of any




G-1-4









 




New York State or Federal court sitting in New York City and any appellate court from any thereof,
for the purposes of (and solely for the purposes of) any suit, action or other proceeding arising
out of, or relating to, this Assignment or any of the transactions contemplated hereby, hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard in such New York State
or Federal court and hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, or otherwise, in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of the above-named courts for any reason whatsoever, that such suit,
action or proceeding is brought in an inconvenient forum, or that the venue of such suit, action or
proceeding is improper, or that this Assignment or the subject matter hereof may not be enforced in
or by such courts.




          The Assignor hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any such action, suit or proceeding brought against it
by the Assignee or any Secured Party with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Assignment, by serving a copy thereof upon any
employee of the Assignor or the Co-Issuers or its subsidiaries (in such capacity, the “Assignor
Process Agent”) at any business location that the Assignor or the Co-Issuers or its subsidiaries
may maintain from time to time in the United States including, without limitation, at the offices
of Navios Corporation located at 825 Third Avenue, 34th Floor, New York, NY 10022.




          If at any time the Assignor does not maintain a bona fide business location in the State of
New York, then the Assignor shall promptly (and in any event within 10 days) irrevocably designate,
appoint and empower CT Corporation System, with offices currently at 111 Eighth Avenue, New York,
New York 10011 (or another third party corporate service provider of national standing as may be
reasonably acceptable to the Assignee), as their designee, appointee and agent to receive, accept
and acknowledge for and on their behalf service of any and all legal process, summons, notices and
documents that may be served in any action, suit or proceeding brought against them by the Assignee
or any Secured Party in any such United States or state court located in the County of New York
with respect to their obligations, liabilities or any other matter arising out of or in connection
with this Assignment and that may be made on such designee, appointee and agent in accordance with
legal procedures prescribed for such courts (the “Third Party Process Agent”; each of the Assignor
Process Agent or the Third Party Process Agent, a “Process Agent”) and pay all fees and expenses
required by the Third Party Process Agent in connection therewith. If for any reason such Third
Party Process Agent hereunder shall cease to be available to act as such, the Assignor agrees to
designate a new Third Party Process Agent in the County of New York on the terms and for the
purposes of this Section 7 satisfactory to the Assignee.




          The Assignor further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any such action, suit or proceeding against them
by (i) serving a copy thereof upon any of the relevant Process Agents specified in the two
preceding paragraphs above, or (ii) by mailing copies thereof by registered or certified air mail,
postage prepaid, to the Assignee, at its address specified in or designated pursuant to this
Assignment or the Indenture. The Assignor agrees that the failure of any Process Agent, to give
any notice of such service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon.




          The Assignor agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing herein shall in any way be deemed to limit the ability of the
Assignee or any Secured Party to serve any such legal process, summons, notices and documents in
any other manner permitted by applicable law or to obtain jurisdiction over the Assignor or bring
actions, suits or proceedings




G-1-5









 




against the Assignor in such other jurisdictions, and in such manner,
as may be permitted by applicable law.




          The Assignor hereby irrevocably and unconditionally waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings arising out of or in connection with this Assignment brought in the
United States federal courts located in the County of New York or the courts of the State of New
York located in the County of New York and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.




          The Assignor, and its obligations under the Assignment, are subject to civil and commercial
law and to suit and none of the Assignor or any of its properties, assets or revenues have any
right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from
the giving of any relief in any such legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any of any Greek, Marshall Islands, Hong Kong, British Virgin Islands,
Cayman Islands, New York State or U.S. federal court, as the case may be, from service of process,
attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from
execution or enforcement of a judgment, or other legal process or proceeding for the giving of any
relief or for the enforcement of a judgment, in any such court, with respect to its obligations or
liabilities or any other matter under or arising out of or in connection with this Assignment; and,
to the extent that the Assignor or any of its properties, assets or revenues may have or may
hereafter become entitled to any such right of immunity in any such court in which proceedings may
at any time be commenced, the Assignor waived or will waive such right to the extent permitted by
law and has consented to such relief and enforcement as provided in the Indenture and the other
Security Documents.




          8. Notices. All notices or other communications required or permitted to be made or given
hereunder shall be made as provided in Section 13.02 of the Indenture.




          9. Headings. The division of this Assignment into sections and the insertion of headings are
for convenience of reference only and shall not affect the interpretation or construction of this
Assignment.




          10. Assignee’s Capacity. The Assignor acknowledges and agrees that the Assignee will accept
this Assignment upon the terms and conditions set forth in Article Seven of the Indenture with the
same force and effect as if those terms and conditions were repeated herein and made applicable to
the Assignee in respect of any action taken by the Assignee hereunder.




          11. Termination. This Assignment shall automatically terminate, and be of no further force
and effect, upon (i) the payment in full of the outstanding principal amount and accrued and unpaid
interest and any other amounts then due and owing in respect of the Notes and the other
Obligations, (ii) the defeasance of the Notes in accordance with the terms of the Indenture or
(iii) the substitution of Qualified Collateral for the Collateral or the release of the Collateral
in accordance with the terms of the Indenture.




[SIGNATURE PAGES IMMEDIATELY FOLLOW]






G-1-6









 








     IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly executed as a Deed this
[          ] day of [                    ], [          ].


THE ASSIGNOR




	 	 	 	 	 	 	 	 	 

	SEALED with the common seal of

	 	 	 	 	 	 	)	 
	[Name of Assignor]

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	and SIGNED by

	 	 	 	 	 	 	)	 
	[Name and title of signing person]

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	its duly authorized attorney

	 	 	 	 	 	 	)	 
	in the presence of:

	 	 	 	 	 	 	)	 
	[Name and title of witness (preferably

	 	 	 	 	 	 	)	 
	lawyer from HFW)

	 	 	 	 	 	 	)	 






G-1-7









 





THE ASSIGNEE




	 	 	 	 	 	 	 	 	 

	The terms and conditions of
	 	 	 	 	 	 	 	 
	this Assignment are hereby
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	ACCEPTED BY:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	WELLS FARGO BANK, National Association
	 	 	 	 	 	 	 	 
	as Collateral Trustee
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by

	 	 	 	 	 	 	)	 
	[Name and title of signing person]

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	as a Deed

	 	 	 	 	 	 	)	 
	for and on behalf of

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	WELLS FARGO BANK, National Association

	 	 	 	 	 	 	)	 
	in the presence of:

	 	 	 	 	 	 	)	 
	[Name and title of witness]

	 	 	 	 	 	 	)	 






G-1-8









 





Exhibit A

ASSIGNMENT OF EARNINGS




[Form of]




SUPPLEMENTAL CHARTER ASSIGNMENT



No. ____



M/T [          ]



          [                    ], a [                    ] organized and existing under the
laws of [                    ] [and registered as a non-Hong Kong company under Part XI of the Companies
Ordinance (Cap. 32)10] (the “Assignor”), refers to an Assignment of Freights
and Hires, dated [                    ], [                    ] (the “Assignment”) between the
Assignor and [                              ] (the “Assignee”), in its capacity as
Collateral Trustee pursuant to the terms of the Indenture dated as of [          ], 2010 among
[                    ], the Guarantors named therein and [                    ],
as such Assignment may be amended, modified or supplemented, wherein the Assignor agreed to enter
into a Supplemental Charter Assignment in the event the Assignor entered into any charter or other
agreement for employment of a Vessel having an indicated duration of at least twelve (12) months.
Capitalized terms used herein and not otherwise defined have the meanings given such terms in the
Indenture.




          The Assignor represents that it has entered into a charter dated ________ between the Assignor
and ____________ (the “Charterer”), a true and complete copy of which is attached hereto (the
“Charter”), and agrees that the Assignment is hereby amended to add to the description of
collateral contained therein the Charter and all of the Assignor’s right, title and interest in the
Charter and to all amounts due the Assignor under the Charter, and the Assignor does as collateral
security for all the Obligations hereby assign, transfer and set over unto the Assignee for the
benefit of the Holders of the Notes, and unto the Assignee’s successors and assigns, as collateral
security for all the Obligations (as defined in the Assignment) all its right, title, interest,
claim and demand in and to, and hereby does also grant unto the Assignee, a security interest in
and to, the Charter and all amounts due the Assignor under the Charter and all claims for damages
arising out of the breach of and rights to terminate the Charter, and any proceeds of any of the
foregoing.




          The Assignor reconfirms that the Assignor has provided the Charterer with written notice of
the Assignment substantially in the form attached hereto as Exhibit I, all of which rights and
liabilities, covenants and obligations remain in full force and effect.






 




			
	10	 	Language to be included only in the
Assignment of M/T SHINYOSAOWALAK which is owned by a BVI company and registered
as a non-Hong Kong company under Part XI of the Companies Ordinance (Cap. 32).




G-1-9









 










     IN WITNESS WHEREOF, the Assignor has caused this Supplemental Charter Assignment No.                     
to be duly executed as a Deed this                      day of                     , 20_.



SEALED with the common seal of                      and

SIGNED by                      its duly authorized attorney

in the presence of:




G-1-10









 





Exhibit I




FORM OF NOTICE TO CHARTERER




     The undersigned, [                    ], a [                    ]organized and
existing under the laws of [                    ] [and registered as a non-Hong Kong company
under Part XI of the Companies Ordinance (Cap. 32)11] (the “Assignor”), hereby
notifies you that Assignor has assigned all of Assignor’s right, title and interest in and to,
inter alia, the Charter and all amounts due under that certain [charter party dated
[___________, 20__] relating to the [                    ] flag Vessel m/t
[     ] (the “Charter”), to [COLLATERAL TRUSTEE], as Collateral Trustee (the “Assignee”), pursuant to
a Supplemental Charter Assignment dated as of                     , 20__ (as the same may be amended,
supplemented or otherwise modified from time to time, the “Assignment”), and hereby instructs you,
upon notice from the Assignee, to make payment of all moneys due and to become due under the
Charter, without setoff or deduction for any claim not arising under the Charter, direct to an
account specified by the Assignee at such address as the Assignee shall request the undersigned, or
at such other place as the Assignee may from time to time designate in writing, until receipt of
written notice from the Assignee that all obligations of the Assignor to it have been paid in full.


Dated:




	 	 	 	 	 
	 	[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	11	 	Language to be included only in the
Assignment of M/T SHINYOSAOWALAK which is owned by a BVI company and registered
as a non-Hong Kong company under Part XI of the Companies Ordinance (Cap. 32).




G-1-11









 










EXHIBIT G-2




[                              ]

 






FORM OF ASSIGNMENT OF INSURANCE




          THIS ASSIGNMENT made as of the __ day of [                    ], [          ], by
[     ], a corporation organized and existing under the laws of [          ] with
registered office situated at [                    ] [and registered as a non-Hong Kong company
under Part XI of the Companies Ordinance (Cap. 32) with principal place of business in Hong Kong at
15th Floor, Tower One, Lippo Centre, 89 Queensway, Admiralty, Hong
Kong12] (the “Assignor”), to [COLLATERAL TRUSTEE], with its office at [ADDRESS]
(together with each of its successors and assigns, the “Assignee”), as Collateral Trustee (as
defined in the Indenture referred to hereinafter) for its benefit and for the benefit of the
Holders of the Notes (as defined in the Indenture hereinafter defined), issued under that certain
Indenture dated as of [                    ], 2010 among Navios Maritime Acquisition
Corporation, a Marshall Islands corporation (the “Company”), [                    ] (“[          ]” and, together with the Company, the “Co-Issuers”), certain subsidiaries of the
Company, [TRUSTEE], as trustee, and the Collateral Trustee (the “Indenture”). Capitalized terms
used herein and not otherwise defined shall be used herein as defined in the Indenture.




          WHEREAS, the Guarantors have agreed to provide a guarantee of all of the obligations of the
Co-Issuers under or in respect of the Notes (the “Guarantees”).




          WHEREAS, the Assignor is a wholly-owned subsidiary of the Company that will provide a
Guarantee dated the date hereof.




          WHEREAS, the Co-Issuers and each Guarantor will materially benefit from the issuance of the
Notes and it is a condition to the issuance of the Notes under the Indenture that the Assignor
execute and deliver this Assignment as security for all of the obligations of the Assignor under
its Guarantee dated the date hereof, the payment of the principal of (and premium, if any) and
interest on the Notes (including, without limitation, any and all Additional Notes that may from
time to time be issued under the Indenture), the payment of all other sums of money payable by the
Co-Issuers under the Indenture, and the payment of all other sums of money payable by the Assignor
under this Assignment and the other Security Documents to which it is a party (collectively, the
“Obligations”), and to secure as well the performance and observance of all agreements, covenants
and provisions contained in this Assignment and the other Security Documents to which it is a
party, and of the Co-Issuers in the Indenture and the Security Documents.




          NOW, THERETOFORE, the Assignor agrees as follows:






 




			
	12	 	Language to be included only in the
Assignment of M/T SHINYOSAOWALAK which is owned by a BVI company and registered
as a non-Hong Kong company under Part XI of the Companies Ordinance (Cap. 32).




G-2-1









 










          1. Grant of Security. THE ASSIGNOR in consideration of One Dollar ($1.00) and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, DOES
HEREBY ASSIGN, transfer and set over unto the Assignee, and as collateral security for all amounts
due and to become due in respect of the Obligations now or hereafter existing, does hereby grant to
the Assignee for the benefit of the Holders of Notes issued pursuant to the Indenture a security
interest in all the right, title, interest, claim and demand of the Assignor in and to (i) all
insurances in respect of the [ ], a vessel documented in the name of the Assignor under the [
] flag with Official No. [ ] (the “Vessel”), whether heretofore, now or hereafter effected, and
all renewals of or replacements for the same (the “Insurances”), (ii) all claims, returns of
premium and other moneys and claims for moneys due and to become due under or in respect of said
Insurances, (iii) all other rights of the Assignor under or in respect of said Insurances and (iv)
any proceeds of any of the foregoing (collectively, the “Collateral”); provided, however, that the
Insurances as well as the Collateral shall not include and no right, title and interest is assigned
hereby in any policies of insurance issued to the Assignor or for the Assignor’s benefit that
provide coverage for a credit default by a charterer under any charter party concerning the Vessel.
The liability of the Assignor under this Assignment shall be subject to the provisions of Article
Ten of the Indenture.




          Capitalized terms used and not otherwise defined herein are used as defined in the Indenture.




          2. Representations, Warranties and Covenants. The Assignor hereby warrants and represents
that each of the Insurances is in full force and effect and is enforceable in accordance with its
terms, and that the Assignor is not in default thereunder. The Assignor hereby further warrants
and represents that it has not assigned, pledged or in any way created or suffered to be created
any security interest in the whole or any part of the right, title and interest hereby assigned,
except for the assignment to the Assignee. The Assignor hereby covenants that, without the prior
written consent thereto of the Assignee, so long as this Assignment shall remain in effect, it will
not assign or pledge the whole or any part of the right, title and interest hereby assigned to
anyone other than the Assignee, its successors or assigns, and it will not take or omit to take any
action, the taking or omission of which might result in an alteration or impairment of said
Insurances in any material respect, or this Assignment or of any of the rights created by said
Insurances or this Assignment.




          The Assignor hereby further covenants and agrees to procure that notice of this Assignment
substantially in the form of Exhibit A hereto shall be duly given to all underwriters and that
where the consent of any underwriter is required pursuant to any of the Insurances assigned hereby
it shall be obtained and evidence thereof shall be given to the Assignee, or, in the alternative,
that in the case of protection and indemnity coverage the Assignor shall obtain a letter of
undertaking by the underwriters or clubs, and that there shall be duly endorsed upon all slips,
cover notes, policies, certificates of entry or other instruments issued or to be issued in
connection with the Insurances assigned hereby such clauses as to loss payees as the Assignee may
require or approve. In all cases (except in the case of protection and indemnity coverage), unless
otherwise agreed in writing by the Assignee, such slips, cover notes, notices, certificates of
entry or other instruments shall show the Assignee as loss payee and shall provide that there will
be no recourse against the Assignee for payment of premiums, calls or assessments.




          The Assignor agrees that (a) it shall do everything necessary under the laws of its state of
incorporation and/or of its domicile, as the case may be, for the purpose of perfecting and
maintaining this Assignment as a good and valid Assignment and, in particular (but without
prejudice to the generality of





G-2-2









 




the foregoing), shall procure that a notification of this Assignment is delivered to or
received by the Hong Kong Companies Registry, for registration within five (5) weeks after the date
of its creation [and, the Registry of Corporate Affairs of the British Virgin Islands, promptly
upon its creation.13], and (b) at any time and from time to time, upon the
written request of the Assignee, its successors and assigns, the Assignor will promptly and duly
execute and deliver any and all such further instruments and documents as the Assignee, its
successors and assigns may reasonably request in order to obtain the full benefits of this
Assignment and of the rights and powers herein granted.




          Any payments made pursuant to the terms hereof shall be made to such account as may, from time
to time, be designated by the Assignee.




          3. Freedom of Assignee from Obligations. It is hereby expressly agreed that anything herein
contained to the contrary notwithstanding, the Assignor shall remain liable under said Insurances
to perform all of the obligations assumed by it thereunder and the Assignee shall have no
obligation or liability (including, without limitation, any obligation or liability with respect to
the payment of premiums, calls or assessments) under said Insurances by reason of or arising out of
this Assignment, nor shall the Assignee be required or obligated in any manner to perform or
fulfill any obligations of the Assignor under or pursuant to said Insurances or to make any payment
or to make any inquiry as to the nature or sufficiency of any payment received by the Assignee or
to present or file any claim, or to take any other action to collect or enforce the payment of any
amounts which may have been assigned to it or to which it may be entitled hereunder at any time or
times.




          4. Power of Attorney; Financing Statements. The Assignee, its successors and assigns, are
hereby constituted lawful attorneys, irrevocably, with full power (in the name of the Assignor or
otherwise) (such power of attorney becoming operative only upon the occurrence and continuance of
an Event of Default and the issuance of notice thereof to the Assignor) to ask, require, demand,
receive, compound and give acquittance for any and all moneys and claims for moneys due and to
become due under or arising out of said Insurances, to endorse any check or other instruments or
orders in connection therewith and to file any claims or take any action or institute any
proceedings which the Assignee may deem to be necessary or advisable in the premises. Any action
or proceeding brought by the Assignee pursuant to any of the provisions hereof or of said
Insurances or otherwise, and any claim made by the Assignee hereunder or under said Insurances, may
be compromised, withdrawn or otherwise dealt with by the Assignee without any notice to, or
approval of, the Assignor. The Assignor hereby (a) irrevocably authorizes the Assignee, at the
Assignor’s expense, (i) to file, at any time and from time to time, this Assignment such financing
and continuation statements or papers of similar purpose or effect relating to this Assignment for
the purpose of perfecting the Assignee’s security interests granted under this Assignment in any
relevant jurisdiction, without the Assignor’s signature, to the extent permitted by law in any
relevant jurisdiction, as the Assignee at its option may deem reasonably appropriate and (ii) to
file, upon request by the Co-Issuers or the Assignee, all lien releases, including, without
limitation, financings statement amendments or papers of a similar purpose, without the Assignor’s
signature, to the extent permitted by law, that are necessary to release security interests
conferred hereby which are to be released in connection with the termination of this Assignment
pursuant to Section 11 hereof and (b) appoints the Assignee as the Assignor’s attorney-in-fact to
execute any such statements in the Assignor’s name and to






 




			
	13	 	Language to be included only in the
Assignment of M/T SHINYOSAOWALAK which is owned by a BVI company.




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perform all other acts which the Assignee may deem appropriate to perfect, continue and
release the security interests conferred hereby in any relevant jurisdiction.




          5. Irrevocable Assignment. The powers and authority granted to the Assignee herein have been
given for a valuable consideration and are hereby declared to be irrevocable and may not be amended
or waived except by an instrument in writing signed by the party against whom enforcement is
sought.




          6. Conditions of Assignment. Unless and until an Event of Default shall have occurred and be
continuing under the Indenture, the Assignor shall be entitled to exercise all its rights and
remedies under the Collateral (subject to the provisions of this Assignment) in all respects as if
this Assignment had not been made. All proceeds of insurances shall be applied as set forth in the
Indenture and the Ship Mortgage.




          7. Governing Law. This Assignment shall be construed in accordance with and governed by the
laws of the State of New York, United States of America without regard to principles of conflicts
of laws. The Assignor hereby irrevocably submits itself to the non-exclusive jurisdiction of any
New York State or Federal court sitting in New York City and any appellate court from any thereof,
for the purposes of (and solely for the purposes of) any suit, action or other proceeding arising
out of, or relating to, this Assignment or any of the transactions contemplated hereby, hereby
irrevocably agrees that all claims in respect of such action or proceeding may be heard in such New
York State or Federal court and hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of the above-named courts for any reason whatsoever,
that such suit, action or proceeding is brought in an inconvenient forum, or that the venue of such
suit, action or proceeding is improper, or that this Assignment or the subject matter hereof may
not be enforced in or by such courts.




          The Assignor hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any such action, suit or proceeding brought against it
by the Assignee or any Secured Party with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Assignment, by serving a copy thereof upon any
employee of the Assignor or the Co-Issuers or its subsidiaries (in such capacity, the “Assignor
Process Agent”) at any business location that the Assignor or the Co-Issuers or its subsidiaries
may maintain from time to time in the United States including, without limitation, at the offices
of Navios Corporation located at 825 Third Avenue, 34th Floor, New York, NY 10022.




          If at any time the Assignor does not maintain a bona fide business location in the State of
New York, then the Assignor shall promptly (and in any event within 10 days) irrevocably designate,
appoint and empower CT Corporation System, with offices currently at 111 Eighth Avenue, New York,
New York 10011 (or another third party corporate service provider of national standing as may be
reasonably acceptable to the Assignee), as their designee, appointee and agent to receive, accept
and acknowledge for and on their behalf service of any and all legal process, summons, notices and
documents that may be served in any action, suit or proceeding brought against them by the Assignee
or any Secured Party in any such United States or state court located in the County of New York
with respect to their obligations, liabilities or any other matter arising out of or in connection
with this Assignment and that may be made on such designee, appointee and agent in accordance with
legal procedures prescribed for such courts (the “Third Party Process Agent”; each of the Assignor
Process Agent or the Third Party Process Agent, a “Process Agent”) and pay all fees and expenses
required by the Third Party Process Agent in connection therewith. If for any reason such Third
Party Process Agent hereunder shall cease to be available




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to act as such, the Assignor agrees to designate a new Third Party Process Agent in the
County of New York on the terms and for the purposes of this Section 7 satisfactory to the
Assignee.




          The Assignor further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any such action, suit or proceeding against them
by (i) serving a copy thereof upon any of the relevant Process Agents specified in the two
preceding paragraphs above, or (ii) by mailing copies thereof by registered or certified air mail,
postage prepaid, to the Assignee, at its address specified in or designated pursuant to this
Assignment or the Indenture. The Assignor agrees that the failure of any Process Agent, to give
any notice of such service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon.




          The Assignor agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing herein shall in any way be deemed to limit the ability of the
Assignee or any Secured Party to serve any such legal process, summons, notices and documents in
any other manner permitted by applicable law or to obtain jurisdiction over the Assignor or bring
actions, suits or proceedings against the Assignor in such other jurisdictions, and in such manner,
as may be permitted by applicable law.




          The Assignor hereby irrevocably and unconditionally waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings arising out of or in connection with this Assignment brought in the
United States federal courts located in the County of New York or the courts of the State of New
York located in the County of New York and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.




          The Assignor, and its obligations under the Assignment, are subject to civil and commercial
law and to suit and none of the Assignor or any of its properties, assets or revenues have any
right of immunity, on the grounds of sovereignty, from any legal action, suit or proceeding, from
the giving of any relief in any such legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any of any Greek, Marshall Islands, Hong Kong, British Virgin Islands,
Cayman Islands, New York State or U.S. federal court, as the case may be, from service of process,
attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from
execution or enforcement of a judgment, or other legal process or proceeding for the giving of any
relief or for the enforcement of a judgment, in any such court, with respect to its obligations or
liabilities or any other matter under or arising out of or in connection with this Assignment; and,
to the extent that the Assignor or any of its properties, assets or revenues may have or may
hereafter become entitled to any such right of immunity in any such court in which proceedings may
at any time be commenced, the Assignor waived or will waive such right to the extent permitted by
law and has consented to such relief and enforcement as provided in the Indenture and the other
Security Documents.




          8. Notices. All notices or other communications required or permitted to be made or given
hereunder shall be made as provided in Section 13.02 of the Indenture.




          9. Headings. The division of this Assignment into sections and the insertion of headings are
for convenience of reference only and shall not affect the interpretation or construction of this
Assignment.




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          10. Assignee’s Capacity. The Assignor acknowledges and agrees that the Assignee will accept
this Assignment upon the terms and conditions set forth in Article Seven of the Indenture with the
same force and effect as if those terms and conditions were repeated herein and made applicable to
the Assignee in respect of any action taken by the Assignee hereunder.




          11. Termination. This Assignment shall automatically terminate, and be of no further force
and effect, upon (i) the payment in full of the outstanding principal amount and accrued and unpaid
interest and any other amounts then due and owing in respect of the Notes and the other
Obligations, (ii) the defeasance of the Notes in accordance with the terms of the Indenture or
(iii) the substitution of Qualified Collateral for the Vessel relating to the Collateral or the
release of such Vessel and the Collateral, in each case, in accordance with the terms of the
Indenture.




[SIGNATURE PAGES IMMEDIATELY FOLLOW]




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          IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly executed as a Deed this
[           ] day of [          ], [          ].



THE ASSIGNOR




	 	 	 	 	 	 	 	 	 

	SEALED with the common seal of

	 	 	 	 	 	 	)	 
	[Name of Assignor]

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	and SIGNED by

	 	 	 	 	 	 	)	 
	[Name and title of signing person]

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	its duly authorized attorney

	 	 	 	 	 	 	)	 
	in the presence of:

	 	 	 	 	 	 	)	 
	[Name and title of witness (preferably

	 	 	 	 	 	 	)	 
	lawyer from HFW)]

	 	 	 	 	 	 	)	 






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THE ASSIGNEE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	The terms and conditions of
	 	 	 	 	 	 	 	 
	this Assignment are hereby
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	ACCEPTED BY:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	WELLS FARGO BANK, National Association
	 	 	 	 	 	 	 	 
	as Collateral Trustee
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SIGNED by

	 	 	 	 	 	 	)	 
	[Name and title of signing person]

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	as a Deed

	 	 	 	 	 	 	)	 
	for and on behalf of

	 	 	 	 	 	 	)	 
	 

	 	 	 	 	 	 	)	 
	WELLS FARGO BANK, National Association

	 	 	 	 	 	 	)	 
	in the presence of:

	 	 	 	 	 	 	)	 
	[Name and title of witness]
	 	 	 	 	 	 	 	 






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EXHIBIT A




NOTICE OF ASSIGNMENT



[                    ]




          [                    ] (the “Owner”), owner of the [          ] documented
vessel m/t [                    ] Official No. [          ] (the “Vessel”), HEREBY GIVES NOTICE that
by an Assignment dated [                    ], [          ] and made by the Owner to [                    ] (the “Assignee”), a [COLLATERAL TRUSTEE], as Collateral Trustee pursuant to, and for the
benefit of the Holders of the Notes (as defined in the Indenture hereinafter defined) issued under,
that certain Indenture dated as of [                    ], 2010 among Navios Maritime Acquisition
Corporation (the “Company”), [                    ] (“[                    ]” and, together with the
Company, the “Co-Issuers”), certain subsidiaries of the Company, [TRUSTEE], as trustee, and the
Collateral Trustee (the “Indenture”), the Owner assigned to the Assignee all of the Owner’s right,
title and interest in and to all insurances and the benefit of all insurances, heretofore, now or
hereafter taken out in respect of the Vessel. This Notice and the attached Loss Payable Clauses
are to be endorsed on all policies and certificates of entry evidencing such insurances.




	 	 	 	 	 
	 	[                    ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 








G-2-9









 








LOSS PAYABLE CLAUSES




Hull and War Risks



          Loss, if any, payable to [                              ] (the “Mortgagee”), a [                    ]
in its capacity as Collateral Trustee pursuant to, and for the benefit of the
Holders of the Notes (as defined in the Indenture hereinafter defined) issued under, that certain
Indenture dated as of [                    ], 2010 among Navios Maritime Acquisition Corporation (the
“Company”), [                    ] (“[          ]” and, together with the Company, the
“Co-Issuers”), certain subsidiaries of the Company and the Mortgagee (the “Indenture”), for
distribution by it to the Mortgagee and then to [                    ] (the “Owner”) as
their respective interests may appear, or order, except that, unless Underwriters have been
otherwise instructed by notice in writing from the Mortgagee in the case of any loss involving any
damage to the Vessel or liability of the Vessel, the Underwriters may pay directly for the repair,
salvage, liability or other charges involved or, if the Owner shall have first fully repaired the
damage and paid the cost thereof, or discharged the liability or paid all of the salvage or other
charges, then the Underwriters may pay the Owner as reimbursement therefor, provided, however, that
if such damage involves a loss in excess of U.S.$3,000,000 (U.S. Dollars Three Million) or its
equivalent the Underwriters shall not make such payment without first obtaining the written consent
thereto of the Mortgagee.




          In the event of an actual or constructive total loss or a compromised or arranged total loss
or requisition of title, all insurance payments therefor shall be paid to the Mortgagee, for
distribution by it in accordance with the terms of the Mortgage.





G-2-10









 





Protection and Indemnity




          Payment of any recovery the Owner is entitled to receive from the funds of the Association in
respect of any liability, costs or expenses incurred by him shall be made to the Owner or to his
order unless and until the Association receives notice from [COLLATERAL TRUSTEE], in its capacity
as Collateral Trustee (hereinafter called the Mortgagee) that the Owner is in default under the
Mortgage, in which event all such recoveries shall thereafter be paid to the Mortgagee or to its
order.




          The Association undertakes:





     (a) to inform the Mortgagee if notice is given to the Owner of the above ship that his
insurance in the Association in respect of such ship is to cease; and




     (b) to give the Mortgagee 21 days’ notice of the Association’s intention to cancel the
insurance of the Owner by reason of his failure to pay when due and demanded any sum due
from him to the Association.








G-2-11









 








EXHIBIT H




FORM OF INCUMBENCY CERTIFICATE




     The undersigned,                     , being the                      of                      (the
“Co-Issuer”), does hereby certify that the individuals listed below are qualified and acting
officers of the Co-Issuer as set forth in the right column opposite their respective names and the
signatures appearing in the extreme right column opposite the name of each such officer is a true
specimen of the genuine signature of such officer and such individuals have the authority to
execute documents to be delivered to, or upon the request of, Wells Fargo Bank, National
Association, as Trustee under the Indenture dated as of October 21, 2010, by and between the
Co-Issuer, the guarantors party thereto and Wells Fargo Bank, National Association



	 	 	 	 	 
	Name	 	Title	 	Signature
	 	 	 	 	 
	 

	 	 
	 	 
	 	 	 	 	 
	 
	 	 
	 	 
	 	 	 	 	 
	 
	 	 
	 	 





          IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the
                     day of
          , 20_.




	 	 	 	 	 
	 	 	 
	 	Name:
Title:
 	 
	 	 	 




H-1