Exhibit 4.15


 




 


 





TERM LOAN AND REVOLVING CREDIT
FACILITY AGREEMENT 

PROVIDING FOR

US$150,000,000

SENIOR SECURED CREDIT FACILITIES


 


STOLTHAVEN HOUSTON INC.

and

STOLTHAVEN NEW ORLEANS LLC,

as Borrowers,


 


DNB NOR BANK ASA,

acting through its New York Branch, as

Administrative Agent and Collateral Agent,


 


the Banks and Financial
Institutions

identified on Schedule 1, as Lenders,


 


and



STOLT-NIELSEN S.A.

and

STOLT-NIELSEN TRANSPORTATION GROUP LTD. 

as Joint and Several Guarantors


 




 





 


 


as of August 13, 2004


 

















 


CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PAGE

  
	
  1.

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
  1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
  1.2

  	
   

  	
  Computation of Time Periods; Other Definitional Provisions

  	
   

  	
  1

  
	
   

  	
  1.3

  	
   

  	
  Accounting Terms

  	
   

  	
  2

  
	
   

  	
  1.4

  	
   

  	
  Certain Matters Regarding Materiality

  	
   

  	
  2

  
	
   

  	
  1.5

  	
   

  	
  Forms of Documents

  	
   

  	
  2

  
	
  2.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  2

  
	
   

  	
  2.1

  	
   

  	
  Representations and Warranties

  	
   

  	
  2

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Due Organization and Power

  	
   

  	
  2

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Authorization and Consents

  	
   

  	
  2

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Binding Obligations

  	
   

  	
  3

  
	
   

  	
   

  	
  (d)

  	
   

  	
  No Violation

  	
   

  	
  3

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Event of Loss; Eminent Domain

  	
   

  	
  3

  
	
   

  	
   

  	
  (f)

  	
   

  	
  Certificates, Permits

  	
   

  	
  4

  
	
   

  	
   

  	
  (g)

  	
   

  	
  Filings; Stamp Taxes

  	
   

  	
  4

  
	
   

  	
   

  	
  (h)

  	
   

  	
  Litigation

  	
   

  	
  4

  
	
   

  	
   

  	
  (i)

  	
   

  	
  Use of Proceeds

  	
   

  	
  4

  
	
   

  	
   

  	
  (j)

  	
   

  	
  Title

  	
   

  	
  4

  
	
   

  	
   

  	
  (k)

  	
   

  	
  No Default

  	
   

  	
  4

  
	
   

  	
   

  	
  (l)

  	
   

  	
  Financial Information

  	
   

  	
  5

  
	
   

  	
   

  	
  (m)

  	
   

  	
  Taxes

  	
   

  	
  5

  
	
   

  	
   

  	
  (n)

  	
   

  	
  ERISA

  	
   

  	
  5

  
	
   

  	
   

  	
  (o)

  	
   

  	
  Chief Executive Office

  	
   

  	
  5

  
	
   

  	
   

  	
  (p)

  	
   

  	
  Foreign Trade Control Regulations

  	
   

  	
  5

  
	
   

  	
   

  	
  (q)

  	
   

  	
  Equity Ownership

  	
   

  	
  6

  
	
   

  	
   

  	
  (r)

  	
   

  	
  Environmental Matters and Claims

  	
   

  	
  6

  
	
   

  	
   

  	
  (s)

  	
   

  	
  No Proceedings to Dissolve

  	
   

  	
  6

  
	
   

  	
   

  	
  (t)

  	
   

  	
  True and Full Disclosure

  	
   

  	
  6

  
	
   

  	
   

  	
  (u)

  	
   

  	
  Condition of Terminals

  	
   

  	
  6

  
	
   

  	
   

  	
  (v)

  	
   

  	
  Intellectual Property

  	
   

  	
  6

  
	
   

  	
   

  	
  (w)

  	
   

  	
  Flood Hazard Area

  	
   

  	
  6

  
	
   

  	
   

  	
  (x)

  	
   

  	
  No Money Laundering

  	
   

  	
  7

  
	
   

  	
   

  	
  (y)

  	
   

  	
  Corporate Benefit

  	
   

  	
  7

  
	
   

  	
   

  	
  (z)

  	
   

  	
  Solvency

  	
   

  	
  7

  
	
   

  	
   

  	
  (aa)

  	
   

  	
  Compliance with Laws

  	
   

  	
  7

  
	
   

  	
   

  	
  (bb)

  	
   

  	
  Survival

  	
   

  	
  7

  
	
  3.

  	
  THE
  CREDIT FACILITIES

  	
   

  	
  7

  
	
   

  	
  3.1

  	
   

  	
  The Credit Facilities

  	
   

  	
  7

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Purposes

  	
   

  	
  7

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Making of the Term Loan

  	
   

  	
  7

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Making of the Revolver Advances

  	
   

  	
  8

  
	
   

  	
  3.2

  	
   

  	
  Drawdown Notice

  	
   

  	
  8

  
										



 


i

















 


	
   

  	
  3.3

  	
   

  	
  Effect of Drawdown Notice

  	
   

  	
  8

  
	
   

  	
  3.4

  	
   

  	
  Notation of Advances on Revolver Note

  	
   

  	
  8

  
	
   

  	
  3.5

  	
   

  	
  Limitation on Advances

  	
   

  	
  8

  
	
   

  	
  3.6

  	
   

  	
  Conversion of Revolver to Term Loan

  	
   

  	
  8

  
	
  4.

  	
  CONDITIONS

  	
   

  	
  9

  
	
   

  	
  4.1

  	
  Conditions Precedent

  	
   

  	
  9

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Corporate Authority

  	
   

  	
  9

  
	
   

  	
   

  	
  (b)

  	
   

  	
  This Agreement and the Notes

  	
   

  	
  10

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Terminals

  	
   

  	
  10

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Insurance Evidence and Opinions

  	
   

  	
  10

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Recording and Filing

  	
   

  	
  10

  
	
   

  	
   

  	
  (f)

  	
   

  	
  Permits

  	
   

  	
  10

  
	
   

  	
   

  	
  (g)

  	
   

  	
  Legality

  	
   

  	
  11

  
	
   

  	
   

  	
  (h)

  	
   

  	
  Transaction Costs

  	
   

  	
  11

  
	
   

  	
   

  	
  (i)

  	
   

  	
  Taxes

  	
   

  	
  11

  
	
   

  	
   

  	
  (j)

  	
   

  	
  Guarantor Documents

  	
   

  	
  11

  
	
   

  	
   

  	
  (k)

  	
   

  	
  Pledge Agreements

  	
   

  	
  11

  
	
   

  	
   

  	
  (l)

  	
   

  	
  Security Documents

  	
   

  	
  11

  
	
   

  	
   

  	
  (m)

  	
   

  	
  Guarantor Solvency

  	
   

  	
  11

  
	
   

  	
   

  	
  (n)

  	
   

  	
  Environmental Actions

  	
   

  	
  11

  
	
   

  	
   

  	
  (o)

  	
   

  	
  Fees

  	
   

  	
  12

  
	
   

  	
   

  	
  (p)

  	
   

  	
  Termination of Existing CIBC Facility

  	
   

  	
  12

  
	
   

  	
   

  	
  (q)

  	
   

  	
  Repayment of Third Party Debt

  	
   

  	
  12

  
	
   

  	
   

  	
  (r)

  	
   

  	
  Receipt of SNSA 2003 Audited Financial Statements

  	
   

  	
  12

  
	
   

  	
   

  	
  (s)

  	
   

  	
  Appraisal

  	
   

  	
  12

  
	
   

  	
   

  	
  (t)

  	
   

  	
  Title Insurance

  	
   

  	
  12

  
	
   

  	
   

  	
  (u)

  	
   

  	
  Environmental Audit

  	
   

  	
  12

  
	
   

  	
   

  	
  (v)

  	
   

  	
  Survey

  	
   

  	
  12

  
	
   

  	
   

  	
  (w)

  	
   

  	
  Legal Opinions

  	
   

  	
  12

  
	
   

  	
  4.2

  	
   

  	
  Further Conditions Precedent

  	
   

  	
  13

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Drawdown Notice

  	
   

  	
  13

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Representations and Warranties

  	
   

  	
  13

  
	
   

  	
   

  	
  (c)

  	
   

  	
  No Event of Default

  	
   

  	
  13

  
	
   

  	
   

  	
  (d)

  	
   

  	
  No Change in Laws

  	
   

  	
  13

  
	
   

  	
   

  	
  (e)

  	
   

  	
  No Material Adverse Effect

  	
   

  	
  13

  
	
   

  	
  4.3

  	
   

  	
  Satisfaction after Drawdown

  	
   

  	
  13

  
	
   

  	
  4.4

  	
   

  	
  Post-Closing Conditions.

  	
   

  	
  13

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Environmental Survey

  	
   

  	
  13

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Survey

  	
   

  	
  13

  
	
  5.

  	
  REPAYMENT
  AND PREPAYMENT

  	
   

  	
  14

  
	
   

  	
  5.1

  	
   

  	
  Repayment

  	
   

  	
  14

  
	
   

  	
  5.2

  	
   

  	
  Voluntary Prepayment

  	
   

  	
  14

  
	
   

  	
  5.3

  	
   

  	
  Mandatory Prepayment

  	
   

  	
  14

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Sale of Collateral

  	
   

  	
  14

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Casualty and Condemnation

  	
   

  	
  14

  
	
   

  	
  5.4

  	
   

  	
  Interest and Costs with Prepayments/Application of
  Prepayments

  	
   

  	
  16

  



 


ii

















 


	
  6.

  	
  INTEREST
  AND RATE

  	
   

  	
  16

  
	
   

  	
  6.1

  	
   

  	
  Applicable Rate

  	
   

  	
  16

  
	
   

  	
  6.2

  	
   

  	
  Default Rate

  	
   

  	
  17

  
	
   

  	
  6.3

  	
   

  	
  Interest Periods.

  	
   

  	
  17

  
	
   

  	
  6.4

  	
   

  	
  Interest Payments

  	
   

  	
  17

  
	
  7.

  	
  PAYMENTS

  	
   

  	
  17

  
	
   

  	
  7.1

  	
   

  	
  Place of Payments, No Set Off

  	
   

  	
  17

  
	
   

  	
  7.2

  	
   

  	
  Tax Credits

  	
   

  	
  17

  
	
   

  	
  7.3

  	
   

  	
  Sharing of Setoffs

  	
   

  	
  18

  
	
   

  	
  7.4

  	
   

  	
  Computations; Business Days

  	
   

  	
  18

  
	
  8.

  	
  EVENTS
  OF DEFAULT

  	
   

  	
  18

  
	
   

  	
  8.1

  	
   

  	
  Events of Default

  	
   

  	
  18

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Payment Default

  	
   

  	
  19

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Other default

  	
   

  	
  19

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Misrepresentation or Breach of Warranty

  	
   

  	
  19

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Execution

  	
   

  	
  19

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Insolvency Events

  	
   

  	
  19

  
	
   

  	
   

  	
  (f)

  	
   

  	
  Insolvency Proceedings

  	
   

  	
  20

  
	
   

  	
   

  	
  (g)

  	
   

  	
  Impossibility or Illegality

  	
   

  	
  20

  
	
   

  	
   

  	
  (h)

  	
   

  	
  Revocation or Modification of Consents Etc.

  	
   

  	
  20

  
	
   

  	
   

  	
  (i)

  	
   

  	
  Curtailment of Business

  	
   

  	
  20

  
	
   

  	
   

  	
  (j)

  	
   

  	
  Acceleration of Other Indebtedness

  	
   

  	
  20

  
	
   

  	
   

  	
  (k)

  	
   

  	
  Cross-Default.

  	
   

  	
  21

  
	
   

  	
   

  	
  (l)

  	
   

  	
  Claims Against the Guarantors’ Assets

  	
   

  	
  21

  
	
   

  	
   

  	
  (m)

  	
   

  	
  Guarantors’ Business

  	
   

  	
  21

  
	
   

  	
   

  	
  (n)

  	
   

  	
  SNSA’s Business

  	
   

  	
  21

  
	
   

  	
   

  	
  (o)

  	
   

  	
  Ownership

  	
   

  	
  21

  
	
   

  	
   

  	
  (p)

  	
   

  	
  Final Judgment

  	
   

  	
  21

  
	
   

  	
   

  	
  (q)

  	
   

  	
  Mortgages

  	
   

  	
  21

  
	
   

  	
   

  	
  (r)

  	
   

  	
  Surveys

  	
   

  	
  21

  
	
   

  	
  8.2

  	
  Indemnification

  	
   

  	
  22

  
	
   

  	
  8.3

  	
  Application of Moneys

  	
   

  	
  22

  
	
  9.

  	
  COVENANTS

  	
   

  	
  23

  
	
   

  	
  9.1

  	
   

  	
  Affirmative Covenants

  	
   

  	
  23

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Performance of Agreements

  	
   

  	
  23

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Notice of Default, etc.

  	
   

  	
  23

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Obtain Consents

  	
   

  	
  23

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Additional Filings/Notifications

  	
   

  	
  23

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Financial Statements

  	
   

  	
  23

  
	
   

  	
   

  	
  (f)

  	
   

  	
  Other information

  	
   

  	
  24

  
	
   

  	
   

  	
  (g)

  	
   

  	
  Certificate of Compliance

  	
   

  	
  24

  
	
   

  	
   

  	
  (h)

  	
   

  	
  Corporate Existence

  	
   

  	
  24

  
	
   

  	
   

  	
  (i)

  	
   

  	
  Books and Records

  	
   

  	
  24

  
	
   

  	
   

  	
  (j)

  	
   

  	
  Taxes and Assessments

  	
   

  	
  25

  
	
   

  	
   

  	
  (k)

  	
   

  	
  Inspection

  	
   

  	
  25

  
	
   

  	
   

  	
  (l)

  	
   

  	
  Inspection and Survey Reports

  	
   

  	
  25

  



 


iii

















 


	
   

  	
   

  	
  (m)

  	
   

  	
  Compliance with Statutes, Agreements, etc.

  	
   

  	
  25

  
	
   

  	
   

  	
  (n)

  	
   

  	
  Environmental Matters

  	
   

  	
  25

  
	
   

  	
   

  	
  (o)

  	
   

  	
  Brokerage Commissions, etc.

  	
   

  	
  25

  
	
   

  	
   

  	
  (p)

  	
   

  	
  Insurance

  	
   

  	
  25

  
	
   

  	
   

  	
  (q)

  	
   

  	
  Pari Passu

  	
   

  	
  25

  
	
   

  	
   

  	
  (r)

  	
   

  	
  Admissibility in Evidence

  	
   

  	
  26

  
	
   

  	
   

  	
  (s)

  	
   

  	
  Most Favored Nation

  	
   

  	
  26

  
	
   

  	
   

  	
  (t)

  	
   

  	
  ERISA

  	
   

  	
  26

  
	
   

  	
  9.2

  	
   

  	
  Negative Covenants

  	
   

  	
  26

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Liens

  	
   

  	
  26

  
	
   

  	
   

  	
  (b)

  	
   

  	
  No Voluntary Bankruptcy

  	
   

  	
  27

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Change in Business

  	
   

  	
  27

  
	
   

  	
   

  	
  (d)

  	
   

  	
  Sale or Pledge of Shares

  	
   

  	
  27

  
	
   

  	
   

  	
  (e)

  	
   

  	
  Sale of Assets

  	
   

  	
  27

  
	
   

  	
   

  	
  (f)

  	
   

  	
  Changes in Offices or Names

  	
   

  	
  27

  
	
   

  	
   

  	
  (g)

  	
   

  	
  Merger or Amalgamation

  	
   

  	
  27

  
	
   

  	
   

  	
  (h)

  	
   

  	
  Restrictions on Investments

  	
   

  	
  27

  
	
   

  	
  9.3

  	
   

  	
  Financial Covenants

  	
   

  	
  28

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Positive Net Worth

  	
   

  	
  28

  
	
   

  	
   

  	
  (b)

  	
   

  	
  No additional Indebtedness

  	
   

  	
  28

  
	
   

  	
  9.4

  	
   

  	
  Financial Covenants of SNSA

  	
   

  	
  28

  
	
   

  	
   

  	
  (a)

  	
   

  	
  Consolidated Debt to Consolidated Tangible Net Worth

  	
   

  	
  29

  
	
   

  	
   

  	
  (b)

  	
   

  	
  Consolidated Tangible Net Worth

  	
   

  	
  29

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Consolidated EBITDA to Consolidated Interest Expense

  	
   

  	
  29

  
	
  10.

  	
  ASSIGNMENT

  	
   

  	
  29

  
	
  11.

  	
  ILLEGALITY,
  INCREASED COST, NON-AVAILABILITY, ETC.

  	
   

  	
  29

  
	
   

  	
  11.1

  	
   

  	
  Illegality

  	
   

  	
  29

  
	
   

  	
  11.2

  	
   

  	
  Increased Costs

  	
   

  	
  29

  
	
   

  	
  11.3

  	
   

  	
  Nonavailability of Funds

  	
   

  	
  30

  
	
   

  	
  11.4

  	
   

  	
  Lender’s Certificate Conclusive

  	
   

  	
  31

  
	
   

  	
  11.5

  	
   

  	
  Compensation for Losses

  	
   

  	
  31

  
	
  12.

  	
  CURRENCY
  INDEMNITY

  	
   

  	
  31

  
	
   

  	
  12.1

  	
   

  	
  Currency Conversion

  	
   

  	
  31

  
	
   

  	
  12.2

  	
   

  	
  Change in Exchange Rate

  	
   

  	
  31

  
	
   

  	
  12.3

  	
   

  	
  Additional Debt Due

  	
   

  	
  31

  
	
   

  	
  12.4

  	
   

  	
  Rate of Exchange

  	
   

  	
  32

  
	
  13.

  	
  FEES
  AND EXPENSES

  	
   

  	
  32

  
	
   

  	
  13.1

  	
   

  	
  Fees

  	
   

  	
  32

  
	
   

  	
  13.2

  	
   

  	
  Expenses

  	
   

  	
  32

  
	
  14.

  	
  APPLICABLE
  LAW, JURISDICTION AND WAIVER

  	
   

  	
  32

  
	
   

  	
  14.1

  	
   

  	
  Applicable Law

  	
   

  	
  32

  
	
   

  	
  14.2

  	
   

  	
  Jurisdiction

  	
   

  	
  32

  
	
   

  	
  14.3

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  33

  
	
  15.

  	
  THE
  AGENTS

  	
   

  	
  33

  
	
   

  	
  15.1

  	
   

  	
  Appointment of Agents

  	
   

  	
  33

  
	
   

  	
  15.2

  	
   

  	
  Collateral Agent

  	
   

  	
  33

  



 


iv

















 


	
   

  	
  15.3

  	
   

  	
  Distribution of Payments

  	
   

  	
  34

  
	
   

  	
  15.4

  	
   

  	
  Holder of Interest in Notes

  	
   

  	
  34

  
	
   

  	
  15.5

  	
   

  	
  No Duty to Examine, Etc.

  	
   

  	
  34

  
	
   

  	
  15.6

  	
   

  	
  Agents as Lenders

  	
   

  	
  34

  
	
   

  	
  15.7

  	
   

  	
  Acts of the Agents

  	
   

  	
  34

  
	
   

  	
  15.8

  	
   

  	
  Certain Amendments

  	
   

  	
  35

  
	
   

  	
  15.9

  	
   

  	
  Assumption re Event of Default

  	
   

  	
  35

  
	
   

  	
  15.10

  	
   

  	
  Limitations of Liability

  	
   

  	
  36

  
	
   

  	
  15.11

  	
   

  	
  Indemnification of the Agents

  	
   

  	
  36

  
	
   

  	
  15.12

  	
   

  	
  Consultation with Counsel

  	
   

  	
  36

  
	
   

  	
  15.13

  	
   

  	
  Resignation

  	
   

  	
  36

  
	
   

  	
  15.14

  	
   

  	
  Representations of Lenders

  	
   

  	
  37

  
	
   

  	
  15.15

  	
   

  	
  Notification of Event of Default

  	
   

  	
  37

  
	
   

  	
  15.16

  	
   

  	
  No Agency or Trusteeship if DNB NOR only Lender

  	
   

  	
  37

  
	
  16.

  	
  NOTICES
  AND DEMANDS

  	
   

  	
  37

  
	
   

  	
  16.1

  	
   

  	
  Notices

  	
   

  	
  37

  
	
  17.

  	
  MISCELLANEOUS

  	
   

  	
  37

  
	
   

  	
  17.1

  	
   

  	
  Time of Essence

  	
   

  	
  38

  
	
   

  	
  17.2

  	
   

  	
  Unenforceable, etc., Provisions–Effect

  	
   

  	
  38

  
	
   

  	
  17.3

  	
   

  	
  References

  	
   

  	
  38

  
	
   

  	
  17.4

  	
   

  	
  Further Assurances

  	
   

  	
  38

  
	
   

  	
  17.5

  	
   

  	
  Prior Agreements, Merger

  	
   

  	
  38

  
	
   

  	
  17.6

  	
   

  	
  Entire Agreement; Amendments

  	
   

  	
  38

  
	
   

  	
  17.7

  	
   

  	
  Indemnification

  	
   

  	
  38

  
	
   

  	
  17.8

  	
   

  	
  Headings

  	
   

  	
  39

  
	
   

  	
  17.9

  	
   

  	
  WAIVER OF IMMUNITY

  	
   

  	
  39

  



 


v

















 


	
  SCHEDULE

  	
   

  	
   

  
	
   

  	
  1.

  	
   

  	
  The Lenders and the
  Initial Commitments

  	
   

  	
   

  
	
   

  	
  2.

  	
   

  	
  Litigation and
  Environmental Matters

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  APPENDICES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  A.

  	
   

  	
  Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  B.

  	
   

  	
  Description of
  Terminals

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  A.

  	
  Form of Term Loan Note

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  B.

  	
  Form of Revolver Note

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  C.

  	
  Form of Guaranty
  Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  D.

  	
  Form of Louisiana
  Mortgage

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  E.

  	
  Form of Texas Mortgage

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  F.

  	
  Form of Pledge
  Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  G.

  	
  Form of Assignment and
  Assumption Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  H.

  	
  Form of Drawdown Notice

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  I.

  	
  Form of Certificate of
  Compliance

  	
   

  	
   

  



 


vi

















 


TERM
LOAN AND REVOLVING CREDIT FACILITY AGREEMENT


 


THIS
TERM LOAN AND REVOLVING CREDIT FACILITY AGREEMENT (this “Agreement”) is made as
of the 13th day of August, 2004, by and among
(1) STOLTHAVEN HOUSTON INC., a corporation incorporated under the laws of
the State of Texas (“Stolthaven Houston”) and STOLTHAVEN NEW ORLEANS LLC, a
limited liability company organized under the laws of the State of Louisiana (“Stolthaven
New Orleans”), as joint and several borrowers (collectively, the “Borrowers”
and each a “Borrower”), (2) the banks and financial institutions listed on
Schedule 1, as lenders (together with any bank or financial institution which
becomes a Lender pursuant to Section 10, the “Lenders”), and (3)  DNB
NOR BANK ASA, acting through its New York Branch, as administrative agent for
the Lenders (in such capacity, the “Administrative Agent”), as collateral agent
for the Lenders (in such capacity, the “Collateral Agent” and together with the
Administrative Agent, the “Agents” and each an “Agent”) and as arranger for the
Lenders.


 


WITNESSETH
THAT:


 


WHEREAS,
at the request of the Borrowers, each of the Agents has agreed to serve in its
respective capacity under the terms of this Agreement and the Lenders have
agreed to provide to the Borrowers a secured term loan in the amount of up to
One Hundred Fifty Million Dollars (US$150,000,000) (the “Term Loan”) and a
secured revolving credit facility in the amount of up to Twenty Million Dollars
(US$20,000,000) (the “Revolver” and together with the Term Loan, the “Credit
Facilities”), which Credit Facilities shall not in the aggregate exceed
US$150,000,000 in principal amount outstanding at any given time.


 


NOW,
THEREFORE, in consideration of the premises set forth above, the covenants and
agreements hereinafter set forth, and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as set forth below:


 


1.             DEFINITIONS


 


1.1           Definitions.
Capitalized terms used as defined terms but not otherwise defined in this
Agreement shall have the meaning attributed to them in Appendix A hereto.


 


1.2           Computation
of Time Periods; Other Definitional Provisions. In this Agreement, the
Notes and the Security Documents, in the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”; words
importing either gender include the other gender; references to “writing”
include printing, typing, lithography and other means of reproducing words in a
tangible visible form; the words “including,” “includes” and “include” shall be
deemed to be followed by the words “without limitation”; references to
articles, sections (or subdivisions of sections), exhibits, annexes or
schedules are to this Agreement, the Notes or such Security Document, as
applicable; references to agreements and other contractual instruments
(including this Agreement, the Notes and the Security Documents) shall be
deemed to include all subsequent amendments, amendments and restatements,
supplements, extensions, replacements and other modifications to such
instruments (without, however, limiting any prohibition on any


 

















 


such
amendments, extensions and other modifications by the terms of this Agreement,
the Notes or any Security Document); references to any matter that is “approved”
or requires “approval” of a party shall mean approval given in the sole and
absolute discretion of such party unless otherwise specified.


 


1.3           Accounting
Terms. Unless otherwise specified herein, all accounting terms used in this
Agreement, the Notes and in the Security Documents shall be interpreted, and
all financial statements and certificates and reports as to financial matters
required to be delivered to any Agent or to the Lenders under this Agreement shall
be prepared, in accordance with GAAP.


 


1.4           Certain
Matters Regarding Materiality. To the extent that any representation,
warranty, covenant or other undertaking of any Security Party in this Agreement
is qualified by reference to those which are not reasonably expected to result
in a “Material Adverse Effect” or language of similar import, no inference
shall be drawn therefrom that any Agent or Lender has knowledge or approves of
any noncompliance by any Security Party with any governmental rule.


 


1.5           Forms
of Documents. Except as otherwise expressly provided in this Agreement,
references to documents or certificates “substantially in the form” of Exhibits
to another document shall mean that such documents or certificates are duly
completed in the form of the related Exhibits with substantive changes subject
to the provisions of Section 17.6 of this Agreement, as the case may be,
or the correlative provisions of the Security Documents.


 


2.             REPRESENTATIONS
AND WARRANTIES


 


2.1           Representations
and Warranties. In order to induce the Agents and the Lenders to enter into
this Agreement and to induce the Lenders to grant the Credit Facilities, the
Borrowers hereby, jointly and severally, represent and warrant to the Agents
and the Lenders (which representations and warranties shall survive the
execution and delivery of this Agreement) that:


 


(a)  Due Organization and Power. each
Security Party is duly formed and is validly existing and, to the extent that
such concept exists, in good standing under the laws of its jurisdiction of
incorporation or formation, has full power to carry on its business as now
being conducted to own and mortgage its properties and to enter into and
perform its obligations under this Agreement, the Notes and the Security
Documents to which it is a party, and has complied with all statutory,
regulatory and other requirements other than those that would not have a
Material Adverse Effect and each Security Party is duly qualified to do
business and is in good standing in its jurisdiction of formation or
organization and in each other jurisdiction in which its business is being
conducted, except where such failure would not have a Material Adverse Effect.


 


(b)  Authorization and Consents. all
necessary corporate action has been taken to authorize, and all necessary
consents and authorities have been obtained and remain in full force and effect
to permit, each Security Party to enter into and perform its obligations under
this Agreement, the Notes and the Security Documents and, in the case of the
Borrowers, to own and mortgage the Terminals and to borrow, service and repay
the Credit Facilities and, as of the date of this Agreement, no further
consents or authorities are necessary for the service and repayment of the
Advances or any part thereof. All Governmental Action required in connection
with the


 


2

















 


execution
and delivery of, and performance by the Security Parties of their obligations
under, this Agreement, the Notes and the Security Documents has been obtained,
given or made.


 


(c)  Binding Obligations. this Agreement,
the Notes and the Security Documents constitute or will, when executed and
delivered, constitute the legal, valid and binding obligations of each Security
Party as is a party thereto enforceable against such Security Party in
accordance with their respective terms, except to the extent that such
enforcement may be limited by equitable principles, principles of public policy
or applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting generally the enforcement of creditors’ rights.


 


(d)  No Violation. the execution and
delivery of, and the performance of the provisions of, this Agreement, the
Notes and those of the Security Documents to which it is to be a party by each
Security Party do not contravene any Applicable Law existing at the date hereof
or any contractual restriction binding on such Security Party or the
certificate of incorporation or by-laws (or equivalent instruments) thereof and
that the proceeds of the Credit Facilities shall be used by the Borrowers
exclusively for their own account or for the account of a Subsidiary or
Affiliate of the Borrowers; the use of the Terminals does not violate in any
material manner Applicable Law, including Environmental Laws, or any
Governmental Action; no notice, notification, demand, request for information,
citations, summons, complaint or order has been issued or filed to or with
respect to any Security Party, no penalty has been assessed on any Security
Party and no investigation or review is pending or, to its best knowledge,
threatened by any Governmental Authority or other Person in each case relating
to the Terminals with respect to any alleged material violation or liability of
any Security Party under any Environmental Law; the Security Parties are not
aware of (x) any material notice, notification, demand, request for
information, citations, summons, complaint or order that has been issued or
filed to or with respect to any other Person, (y) any material penalty has been
assessed on any other Person or (z) any investigation or review pending or
threatened by any Governmental Authority or other Person relating to the
Terminals with respect to any alleged material violation or liability under any
Environmental Law by any other Person.


 


There
are no present or, to any Security Party’s best knowledge, past facts,
circumstances, activities, events, conditions or occurrences regarding the
Terminals (including without limitation the Release or presence of Hazardous
Materials) that could reasonably be anticipated to (A) form the basis of a
material Claim against the Terminals, any Creditor or any Security Party, (B)
cause the Terminals to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law, (C) require the filing or
recording of any notice or restriction relating to the presence of Hazardous
Materials in the real estate records in the county or other appropriate
municipality in which a Terminal is located, or (D) prevent or interfere with
the continued operation and maintenance of the Terminals as contemplated by
this Agreement, the Notes and the Security Documents.


 


(e)  Event of Loss; Eminent Domain. since
January 29, 1998, no Event of Loss has occurred; no event or condition has
occurred which would, with the passage of time or the giving of notice, or
both, constitute an Event of Loss; and no damage, loss, condemnation,
confiscation, theft or seizure has occurred with respect to the Terminals, or
any portion thereof, which would result in the potential for any other party to
this Agreement, the Notes or the Security Documents to fail to consummate the
transactions contemplated hereby;  there
is no action pending or, to the


 


3

















 


knowledge
of any Security Party, threatened by any Governmental Authority or other person
to initiate a taking or use of the Terminals or any part or portion thereof
through condemnation, seizure, requisition of title, power of eminent domain or
otherwise.


 


(f)  Certificates, Permits. each Borrower
has obtained and is in compliance with all Governmental Actions and all
certificates, licenses, and permits, required from all Governmental Authorities
or from private parties, for the normal use and operation of the Terminals
(including, without limitation, those required for the use, treatment, storage,
transport, disposal or disposition of any Hazardous Materials on, at, under or
from the Terminals) that the failure to obtain or comply with could reasonably
be expected to have a Material Adverse Effect and all such certificates,
licenses, permits and the like will be in full force and effect on the Closing
Date.


 


(g)  Filings; Stamp Taxes. other than the
recording of the Mortgages with the appropriate authorities in the states in
which each of the Terminals is located, the filing of UCC Financing Statements
in Texas and Louisiana, and the payment and filing or recording fees consequent
thereto, it is not necessary for the legality, validity, enforceability or
admissibility into evidence of this Agreement, the Notes or the Security
Documents that any of them or any document relating thereto be registered,
filed, recorded or enrolled with any court or authority in any relevant
jurisdiction or that any stamp, registration or similar Taxes be paid on or in
relation to this Agreement, the Notes or any of the Security Documents.


 


(h)  Litigation. except as disclosed on
Schedule (2), no action, suit or proceeding is pending or to the knowledge
of any Security Party threatened against any Security Party or any Subsidiary
or a Terminal before any court, board of arbitration or administrative agency
that (i) might question the validity or enforceability of this Agreement, the
Notes or the Security Documents to which any Security Party is or is to become
a party or (ii) if adversely determined, could (whether individually or when
aggregated with other actions, suits or proceedings) be reasonably expected to
have a Material Adverse Effect; no Security Party is in default with respect to
any order of any Governmental Authority.


 


(i)  Use of Proceeds. none of the
transactions contemplated by this Agreement, the Notes or the Security
Documents will result in a violation of Section 7 of the Act or any regulations
issued pursuant thereto, including, without limitation, Regulations G, T, U and
X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter
II.


 


(j)  Title. on the Closing Date, each
Borrower will have good, marketable and indefeasible title to the Terminal
owned by it subject only to Permitted Liens (including the claims and easements
indicated on the description thereof annexed hereto).


 


(k)  No Default. no Event of Default nor
any event which with the lapse of time, the giving of notice or both would
become an Event of Default has occurred; no Security Party is a party to any
agreement or instrument or subject to any charter or other corporate
restriction affecting its business, properties, financial condition, prospects
or results of operations that could reasonably be expected to have a Material
Adverse Effect; no Security Party is in default in, nor has any non-permanent
waiver been granted to any Security Party with respect to the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in (i) any agreement to which it is a party, which default could be
reasonably expected


 


4

















 


to have
a Material Adverse Effect or (ii) any other agreement or instrument evidencing
or governing an outstanding principal amount of indebtedness equal to or in
excess of One Million Dollars (US$1,000,000) for the Borrowers and Five Million
Dollars (US$5,000,000) for the Guarantors.


 


(l)  Financial Information. on or prior to
the date hereof, all financial statements, information and other data furnished
by any Security Party to the Administrative Agent are complete and correct,
such financial statements have been prepared in accordance with GAAP and
accurately and fairly present the financial condition of the parties covered
thereby as of the respective dates thereof and the results of the operations
thereof for the period or respective periods covered by such financial
statements, and, since the date of the financial statements most recently
delivered to the Administrative Agent, there has been no Material Adverse
Effect as to any of such parties and none thereof has any contingent
obligations, liabilities for taxes or other outstanding financial obligations,
except as disclosed in such statements, information and data


 


(m)  Taxes. all Federal and local income
tax returns or allowable extensions therefor required to be filed by any
Security Party or any of its Subsidiaries have, in fact, been filed, and all
taxes which are shown to be due and payable in such returns have been paid; no
material controversy in respect of additional income taxes due is pending or,
to the knowledge of any Security Party threatened, which controversy if
determined adversely could reasonably be expected to have a Material Adverse
Effect.


 


(n)  ERISA. the execution and delivery of
this Agreement and the consummation of the transactions hereunder will not
involve any prohibited transaction within the meaning of ERISA or Section 4975
of the Code and no condition exists or event or transaction has occurred in
connection with any ERISA Plan maintained or contributed by any Security Party
or any Subsidiary or any ERISA Affiliate resulting from the failure of any
thereof to comply with ERISA insofar as ERISA applies thereto which is
reasonably likely to result in any Security Party or any such Subsidiary or any
ERISA Affiliate incurring any liability, fine or penalty which individually or
in the aggregate would have a Material Adverse Effect. Prior to the date
hereof, each Security Party has delivered to the Administrative Agent a list of
all the employee benefit plans to which either of the Borrowers or any
Subsidiary or any ERISA Affiliate is a “party in interest” (within the meaning
of Section 3(14) of ERISA) or a “disqualified person” (within the meaning of
Section 4975(e)(2) of the Code);


 


(o)  Chief Executive Office. each Borrower’s
chief executive office and chief place of business and the office in which the
records relating to the earnings and other receivables of each Borrower are
kept is, and will continue to be, the address set forth below each Borrowers’
signature on the signature page hereto;


 


(p)  Foreign Trade Control Regulations. none
of the transactions contemplated herein will violate any of the provisions of
the Foreign Assets Control Regulations of the United States of America
(Title 31, Code of Federal Regulations, Chapter V, Part 500, as
amended), any of the provisions of the Cuban Assets Control Regulations of the
United States of America (Title 31, Code of Federal Regulations,
Chapter V, Part 515, as amended), any of the provisions of the Libyan
Assets Control Regulations of the United States of America (Title 31, Code
of Federal Regulations, Chapter V, Part 550, as amended), any of the
provisions of the Iranian


 


5

















 


Transaction
Regulations of the United States of America (Title 31, Code of Federal
Regulations, Chapter V, Part 560, as amended), any of the provisions of the
Iraqi Sanctions Regulations (Title 31, Code of Federal Regulations,
Chapter V, Part 575, as amended), any of the provisions of the
Federal Republic of Yugoslavia (Serbia and Montenegro) and Bosnia
Serb-controlled areas of the Republic of Bosnia and Herzegovina Assets Control
Regulations (Title 31, Code of Federal Regulations, Chapter V, Part 585 as
amended) or any of the provisions of the Regulations of the United States of
America Governing Transactions in Foreign Shipping of Merchandise
(Title 31, Code of Federal Regulations, Chapter V, Part 505, as
amended);


 


(q)  Equity Ownership. on the Closing Date
each of the Borrowers will be wholly owned indirect subsidiaries of SNSA;


 


(r)  Environmental Matters and Claims.  except
as heretofore disclosed in Schedule 2, no Security Party is in, or has
been notified of, any violation of any Environmental Law, which could have a
Material Adverse Effect;


 


(s)  No Proceedings to Dissolve. there are
no proceedings or actions pending or contemplated by any Security Party, or,
contemplated by any third party, to dissolve or terminate any Security Party;


 


(t)  True and Full Disclosure. no
information furnished by or on behalf of any Security Party to the
Administrative Agent or any Lender, or any insurer in connection with the
Agreement, the Notes or any Security Document or any transaction contemplated
thereby contains any untrue statement of a material fact or omits to state
material fact necessary to make the statements contained herein or therein not
misleading. There is no fact known to any Security Party that the respective
party has not disclosed to the Administrative Agent in writing which has, or
could reasonably be expected to have, a Material Adverse Effect.


 


(u)  Condition of Terminals. No event or
condition currently exists that (i) presently materially adversely affects
the operation or maintenance of either Terminal, or any part thereof, or
(ii) causes any Security Party to believe that the functional ability of
the either Terminal is materially less than the functional ability for which
either Terminal was designed. Neither Terminal encroaches in any manner onto
any adjoining land (except as permitted by express written easements). There
are no material defects in either Terminal or any part thereof and all water,
sewer, electric, gas, telephone and other utilities required to service neither
Terminal for its intended use are available pursuant to adequate permits
(including any that may be required under applicable Environmental Laws).


 


(v)  Intellectual Property. All third party
licenses, patents, trademarks, tradenames and similar rights, if any, necessary
for the operation of either Terminal, or any part thereof, by a third party are
in full force and effect.


 


(w)  Flood Hazard Area. No portion of
either Terminal is located in an area identified as a special flood hazard area
by the Federal Emergency Management Agency or other applicable agency, or, if
either Terminal is located in such an area, then flood insurance has been
obtained for such Terminal in accordance with the Mortgage thereon and in
accordance with the National Flood Insurance Act of 1968, as amended.


 


6

















 


(x)  No Money Laundering. in the
performance and discharge of its obligations and liabilities under and as
contemplated by this Agreement, the Notes and the Security Documents, each
Security Party is acting for its own account.


 


(y)  Corporate Benefit. the entering into
by each Security Party of this Agreement, the Notes and the Security Documents
to which it is a party is in its corporate interest, and such party benefits
from the transactions pursuant this Agreement.


 


(z)  Solvency. in the case of each of the
Security Parties, (a) the sum of its assets, at a fair valuation, does and will
exceed its liabilities, including, to the extent they are reportable as such in
accordance with GAAP, contingent liabilities, (b) the present fair market
salable value of its assets is not and shall not be less than the amount that
will be required to pay its probable liability on its then existing debts,
including, to the extent they are reportable as such in accordance with GAAP,
contingent liabilities, as they mature, (c) it does not and will not have
unreasonably small working capital with which to continue its business and (d)
it has not incurred, does not intend to incur and does not believe it will
incur, debts beyond its ability to pay such debts as they mature;


 


(aa)  Compliance with Laws. each of the
Security Parties is in compliance with all Applicable Laws, including Environmental
Laws except where the failure to comply would not alone or in the aggregate
result in a Material Adverse Effect; no notice, notification, demand, request
for information, citations, summons, complaint or order has been issued or
filed to or with respect to any Security Party with respect to a material
violation of Applicable Law; no penalty has been assessed on any Security Party
and no investigation or review is pending or, to their best knowledge,
threatened by any Governmental Authority or other Person in each case relating
to the Terminals with respect to any alleged material violation or liability of
any Security Party under any Environmental Law; and


 


(bb)  Survival. all representations,
covenants and warranties made herein and in any certificate or other document
delivered pursuant hereto or in connection herewith shall survive the making of
the Advances and the issuance of the Notes.


 


3.             THE
CREDIT FACILITIES


 


3.1           The
Credit Facilities.


 


(a)  Purposes. The Lenders shall make the
Credit Facilities available to the Borrowers for the purposes of refinancing
existing debt and for general corporate purposes;


 


(b)  Making of the Term Loan. Subject to
the limitations set forth in Section 3.5 hereof, each of the Lenders, relying
upon each of the representations and warranties set out in Section 2,
hereby severally and not jointly agrees with the Borrowers that, subject to and
upon the terms of this Agreement, it will, not later than 11:00 A.M. (New York
City time) on the Closing Date, make its portion of the Term Loan, in Federal
or other funds immediately available in New York City, to the Administrative
Agent at its address set forth on Schedule 1 or to such account of the
Administrative Agent most recently designated by it for such purpose by timely
notice to the Lenders. Unless the Administrative Agent determines that any
applicable condition specified in Section 4.1 or 4.2 has not been satisfied,
the Administrative Agent will


 


7

















 


make
the funds so received from the Lenders available to the Borrowers at the
aforesaid address, subject to the receipt of the funds by the Administrative
Agent as provided in the immediately preceding sentence, not later than 3:00
P.M. (New York City time) on the Closing Date.


 


(c)  Making of the Revolver Advances. Subject
to the limitations set forth in Section 3.5 hereof, each of the Lenders,
relying upon each of the representations and warranties set out in
Section 2, hereby severally and not jointly agrees with the Borrowers that,
subject to and upon the terms of this Agreement, it will, not later than 11:00
A.M. (New York City time) on each Revolver Drawdown Date, make its portion of
the Revolver Advance, in Federal or other funds immediately available in New
York City, to the Administrative Agent at its address set forth on Schedule 1
or to such account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. Unless the Administrative Agent
determines that any applicable condition specified in Section 4.1 or 4.2 has
not been satisfied, the Administrative Agent will make the funds so received
from the Lenders available to the Borrowers at the aforesaid address, subject
to the receipt of the funds by the Administrative Agent as provided in the
immediately preceding sentence, not later than 3:00 P.M. (New York City time)
on the Drawdown Date.


 


3.2           Drawdown
Notice. The Borrowers shall, at least three (3) Business Days before
each Drawdown Date, serve a notice (a “Drawdown Notice”), substantially in the
form of Exhibit H, on the Administrative Agent, which notice shall
(a) be in writing addressed to the Administrative Agent, (b) be
effective on receipt by the Administrative Agent, (c) specify the amount
of the Term Loan and/or the Revolver Advance to be drawn down, (d) specify
the Business Day on which such Advance is to be drawn down, (e) specify
the Interest Period, (f) specify the disbursement instructions and (g) be
irrevocable.


 


3.3           Effect
of Drawdown Notice. Such Drawdown Notice shall be deemed to constitute a
warranty by the Borrowers (a) that the representations and warranties
stated in Section 2 (updated mutatis mutandis) are true and correct on and
as of the date of the Drawdown Notice and will be true and correct on and as of
the relevant Drawdown Date as if made on such date, and (b) that no Event
of Default nor any event which with the giving of notice or lapse of time or
both would constitute an Event of Default has occurred and is continuing.


 


3.4           Notation
of Advances on Revolver Note. Each Revolver Advance made by the Lenders to
the Borrowers may be evidenced by a notation of the same made by the
Administrative Agent on the grid attached to the Revolver Note, which notation,
absent manifest error, shall be prima facie
evidence of the amount of the relevant Revolver Advance.


 


3.5           Limitation
on Advances. Notwithstanding anything to the contrary contained within this
Agreement, the Notes or any Security Documents, at no time shall the aggregate
amount of all outstanding Advances be greater than One Hundred Fifty Million
Dollars (US$150,000,000.00).


 


3.6           Conversion
of Revolver to Term Loan. On the Revolver Maturity Date, subject to the
limitation contained in Section 3.5, the Term Loan shall be increased by an
amount equal to the aggregate of all outstanding Advances with respect to the
Revolver and the Revolver shall be cancelled. Any and all amounts of interest
accrued but not yet due and payable on the Revolver


 


8

















 


Maturity
Date with respect to the Revolver shall be deemed payable with respect to the
Term Loan as increased pursuant to this Section 3.6.


 


4.             CONDITIONS


 


4.1           Conditions
Precedent. The obligation of the Lenders to make the Credit Facilities
available to the Borrowers under this Agreement shall be expressly subject to
the following conditions precedent:


 


(a)  Corporate Authority. the
Administrative Agent shall have received the following documents in form and
substance satisfactory to the Administrative Agent:


 


(i)            copies,
certified as true and complete by an officer of each Security Party, of the
resolutions of the board of directors and shareholders (except in the case of
SNSA), or members thereof, as the case may be, evidencing approval of the
Agreement, the Notes, and those Security Documents to which each Security Party
is or is to be a party and authorizing an appropriate officer or officers or
attorney-in-fact or attorneys-in-fact to execute the same on its behalf, or
other evidence of such approvals and authorizations;


 


(ii)           copies,
certified as true and complete by an officer of each Security Party, of all
documents evidencing any other necessary action (including actions by such
parties thereto other than such Security Party as may be required by the
Administrative Agent), approvals or consents with respect to this Agreement,
the Notes and the Security Documents to which it is a party;


 


(iii)          copies,
certified as true and complete by an officer of the respective Security Party,
of the certificate of incorporation and by-laws, certificate of formation and
operating agreement, or equivalent instruments thereof;


 


(iv)          certificate
of an authorized officer of SNSA certifying that it legally and beneficially
owns, directly or indirectly, all of the issued and outstanding capital stock,
or limited liability company membership interests, as the case may be, of each
of the other Security Parties and that such capital stock or membership
interests are free and clear of any liens, claims, pledges or other
encumbrances whatsoever;


 


(v)           certificate
of an authorized officer of each Security Party (other than SNSA) certifying as
to the record ownership of all of its issued and outstanding capital stock, or
limited liability company membership interests, as the case may be; and


 


9

















 


(vi)          where
such concept exists, certificates of the jurisdiction of incorporation or
formation, as the case may be, of each Security Party as to the good standing
thereof;


 


(vii)         copies,
certified as true and complete by an officer of the relevant Security Party
and/or such evidence as a Lender may reasonably request in order for such
Lender to comply with its “know your customer” requirements to confirm the
identity of the Security Parties and/or the individuals acting on their behalf.


 


(b)  This Agreement and the Notes. the
Borrowers shall have duly executed and delivered to the Administrative Agent
this Agreement and the Notes;


 


(c)  Terminals. the Administrative Agent
shall have received evidence satisfactory to it that each Terminal is owned by
such Borrower listed opposite its name in Appendix B and that such Terminal
shall be unencumbered, save and except for the Mortgage thereon in favor of the
Collateral Agent, and as otherwise permitted thereby or as set out in the
description thereof annexed hereto;


 


(d)  Insurance Evidence and Opinions. the
Administrative Agent shall have received (i) a favorable report and
opinion, satisfactory to all Lenders, of JLT Risk Solutions Ltd. with respect
to insurances on each Terminal opining, inter alia,
that the Insurance Requirements are sufficient to protect the interests of each
Creditor and that the insurances with respect to each Terminal are in
compliance with the Insurance Requirements and (ii) if requested, copies
of all policies evidencing compliance with the Insurance Requirements and
copies of any exceptions to coverage of the insurance policies;


 


(e)  Recording and Filing.


 


(i)            each
Mortgage and all financing or other similar statements or notices as requested
by the Administrative Agent, shall have been duly recorded or filed under the
laws of the appropriate federal, state or local jurisdiction, or be in proper
form to be duly recorded or filed in such appropriate jurisdiction, and all
recording and filing fees and Taxes with respect to any such recording or
filing shall have been paid in full (or arrangements, satisfactory to the
Administrative Agent and the Lenders, for such payment shall have been made);
and


 


(ii)           a
perfected security interest having first priority shall have been created in
the interests assigned under the Mortgages in favor of the Collateral Agent;


 


(f)  Permits. all applicable Permits shall
have been obtained (excepting those Permits for which the failure to obtain
would not likely result in a Material Adverse Effect). All such obtained
Permits shall be in proper form, shall be in full force and effect and not
subject to any appeal, consent or contest or to any condition that, if
unsatisfied, is likely to result, in the


 


10

















 


Administrative
Agent’s or the Lender’s reasonable judgment, in the forfeiture or revocation of
such Permit;


 


(g)  Legality. the execution, delivery and
issuance of the Notes by the Borrowers shall not be subject to the registration
requirements of the Act or any state securities or blue sky Law, and shall not
be prohibited by any applicable Law (including Regulation T, Regulation U or
Regulation X and any applicable usury Laws) and shall not subject any Creditor
to any Tax (other than Excluded Taxes), penalty, liability or other onerous
condition under or pursuant to any applicable Law;


 


(h)  Transaction Costs. all Transaction
Costs as may be required to be paid on the Closing Date shall have been paid in
accordance with the terms of the Agreement, the Notes, the Security Documents;


 


(i)  Taxes. all Taxes (other than Excluded
Taxes), fees and other charges which have become due and payable in connection
with the execution and delivery of the Agreements, the Notes, the Security
Documents in effect on the Closing Date shall have been paid by or on behalf of
the Borrowers;


 


(j)  Guarantor Documents. each Guarantor
shall have duly executed and delivered to the Administrative Agent:


 


(i)            the
Guaranty; and


 


(ii)           the
Consent and Agreement (set forth below) to this Agreement;


 


(k)  Pledge Agreements. SNTGI shall have
duly executed and delivered to the Administrative Agent the Pledge Agreements.


 


(l)  Security Documents. each of the
Borrowers shall have duly executed (where execution is necessary) and delivered
to the Administrative Agent:


 


(i)            the
Mortgages over the Terminals;


 


(ii)           Uniform
Commercial Code Financing Statements for filing with Texas and Louisiana and in
such other jurisdictions as the Administrative Agent may reasonably require;


 


(m)  Guarantor Solvency. the Administrative
Agent shall have received a certificate of an officer of each Guarantor
confirming the representations and warranties with respect to solvency set
forth in its Guaranty and containing conclusions as to the solvency of such
Guarantor;


 


(n)  Environmental Actions. the
Administrative Agent shall be satisfied that no Security Party nor any of its
Subsidiaries or its Affiliates is subject to any material Environmental Action;


 


11

















 


(o)  Fees. the Administrative Agent shall
have received payment in full of all fees and expenses then due to the
Administrative Agent and/or the Lenders under Section 13;


 


(p)  Termination of Existing CIBC Facility.
the Administrative Agent shall have received evidence of repayment and
termination of the existing CIBC facility in form and substance satisfactory to
the Administrative Agent;


 


(q)  Repayment of Third Party Debt. the
Administrative Agent shall have received evidence, in form and substance
satisfactory to the Administrative Agent, that any and all existing
Indebtedness from the Borrowers to any third party (including their Affiliates)
has been repaid;


 


(r)  Receipt of SNSA 2003 Audited Financial
Statements. the Administrative Agent shall have received the audited
financial statements for SNSA for the year 2003;


 


(s)  Appraisal. the Administrative Agent
shall have received an appraisal on the Terminals from Stone & Webster Management Consultants, Inc. which appraisal
shall be in form and substance satisfactory to all Lenders, and which appraisal
shall state that the aggregate Fair Market Value of the Terminals is at least
125% of the Credit Facilities;


 


(t)  Title Insurance. On the Closing Date,
the Administrative Agent shall receive from Chicago Title Insurance Company,
with respect to the Terminal owned by Stolthaven Houston, a Form T-2 Mortagee
Policy of Title Insurance as issued in the State of Texas, and from First
American Title Insurance Company, with respect to the Terminal owned by
Stolthaven New Orleans, an ALTA Mortgagee’s Policy of Title Insurance, in
respect of each Mortgage in an amount, in the aggregate, at least equal to $
150,000,000.


 


(u)  Environmental Audit. On the Closing
Date, the Administrative Agent shall have received from the Borrowers (i)
satisfactory evidence that an Environmental Audit of each Terminal to be
conducted in accordance with American Society for Testing and Materials
standards has been commenced and is underway and (ii) funds sufficient to cover
the costs of the Environmental Audit with respect to each Terminal, which funds
shall be remitted by the Administrative Agent to the respective auditor of the
Terminals in accordance with the terms of the auditing agreement; provided,
however, that the Administrative Agent shall be under no obligation to
remit funds to any auditor in excess of the funds received pursuant to this
Section 4.1(u).


 


(v)  Survey. The Administrative Agent shall
have received from the Borrowers (i) satisfactory evidence that the Borrowers
have engaged a surveyor or surveyors to conduct surveys with respect to each
Terminal and (ii) funds sufficient to cover the costs of the surveys with
respect to each Terminal, which funds shall be remitted by the Administrative
Agent to the respective surveyor of the Terminals in accordance with the terms
of the surveying agreement; provided, however, that the
Administrative Agent shall be under no obligation to remit funds to any
surveyor in excess of the funds received pursuant to this Section 4.1(v).


 


(w)  Legal Opinions. the Administrative
Agent, on behalf of the Lenders, shall have received legal opinions addressed
to the Administrative Agent from (i) Campbell & Riggs P.C., special
Texas counsel for the Borrowers, (ii) Phelps Dunbar LLP, special Louisiana
counsel


 


12

















 


for the
Borrowers, (iii) Alan B. Winsor the general counsel of Stolt-Nielsen Inc.,
in respect of Security Parties, (iv) Elvinger Hoss & Prussen, Luxembourg
counsel to SNSA and (v) Seward & Kissel LLP, special counsel to the
Creditors, in each case in such form as the Administrative Agent may require,
as well as such other legal opinions as the Administrative Agent shall have
required as to all or any matters under the laws of the United States of
America, the State of New York, the State of Texas, the State of Louisiana, the
Duchy of Luxembourg and the Republic of Liberia covering the representations
and conditions which are the subjects of Sections 2 and this Section 4.1.


 


4.2           Further
Conditions Precedent. The obligation of the Lenders to make any Advance
available to the Borrowers under this Agreement shall be expressly and
separately subject to the following further conditions precedent on the Closing
Date:


 


(a)  Drawdown Notice. the Administrative
Agent shall have received a Drawdown Notice in accordance with Section 3.2;


 


(b)  Representations and Warranties. the
representations stated in Section 2 
(updated mutatis mutandis to such date) being true and correct as if
made on and as of that date;


 


(c)  No Event of Default. no Event of
Default having occurred and being continuing and no event having occurred and
being continuing which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default;


 


(d)  No Change in Laws. the Administrative
Agent being satisfied that no change in any applicable laws, regulations, rules
or in the interpretation thereof shall have occurred which make it unlawful for
any Security Party to make any payment as required under the terms of this
Agreement, the Notes, the Security Documents or any of them; and


 


(e)  No Material Adverse Effect. there
having been no Material Adverse Effect since the date hereof.


 


4.3           Satisfaction
after Drawdown. Without prejudice to any of the other terms and conditions
of this Agreement, in the event the Lenders, in their sole discretion, make any
Advance prior to the satisfaction of all or any of the conditions referred to
in Sections 4.1 or 4.2, the Borrowers hereby covenant and undertake to
satisfy or procure the satisfaction of such condition or conditions within
fourteen (14) days after the relevant Drawdown Date (or such longer period
as the Lenders, in their sole discretion, may agree).


 


4.4           Post-Closing
Conditions.


 


(a)  Environmental Survey. Within thirty
(30) days of the Closing Date, the Administrative Agent shall have received a
complete Environmental Audit of each Terminal in accordance with American
Society for Testing and Materials standards and which shall not include a
recommendation for further investigation and is otherwise satisfactory to the
Administrative Agent and each Lender in all material respects.


 


(b)  Survey. Within ninety (90) days of the
Closing Date or such later date as the Majority Lenders in their sole
discretion shall agree, the Administrative Agent shall have


 


13

















 


received
(i) an accurate survey with respect to each Terminal certified to the
Administrative Agent prepared in accordance with ALTA/ACSM standards with the
following Table A options: 1, 2, 3, 4, 6, 7(a), 7(b)(1) and (2), 7(c), 8, 9,
10, 11(b), 13 and 14 and otherwise in form and substance satisfactory to the
Administrative Agent and (ii) amended and updated title insurance policies, in
form and substance satisfactory to the Administrative Agent, with respect to
each Terminal evidencing the removal of any pre-printed survey exceptions
contained in the title insurance policies received by the Administrative Agent
pursuant to Section 4.1(t) and containing, without limitation, with respect to
the Terminal owned by Stolthaven Houston, the Comprehensive (T-19), Access
(T-23) and Contiguity (T-25) Endorsements and containing, without limitation,
with respect to the Terminal owned by Stolthaven New Orleans, the Access, Same
as Survey, Contiguity, ALTA 9 and Zoning (with Parking), Mechanic’s Lien and
Creditor’s Rights Endorsements.


 


5.             REPAYMENT
AND PREPAYMENT


 


5.1           Repayment.
Subject to the provisions of this Section 5 regarding application of
prepayments, the Borrowers shall repay the principal amount of the Credit
Facilities in sixteen (16) consecutive quarterly installments commencing on the
Initial Payment Date and on each Payment Date thereafter, the first fifteen
(15) of such installments shall be in the principal amount of one-fifteenth
(1/15th) of sixty percent (60%) of the aggregate amount of all
Advances outstanding as of the one year anniversary of the Closing Date and the
sixteenth (16th) and final installment, payable on the Final Payment
Date, shall be in an amount equal to the Balloon Amount. Each such payment to
be made under this Section 5.1 shall be made together with accrued but unpaid
interest thereon. Any amounts due under this Agreement not paid when due,
whether by acceleration or otherwise, shall bear interest thereafter until paid
at the Default Rate.


 


5.2           Voluntary
Prepayment. The Borrowers may prepay, upon three (3) Business Days written
notice, any outstanding Credit Facility or any portion thereof, without
penalty, provided that if such prepayment is made on a day other than the last
day of the Interest Period of such Credit Facility such prepayment shall be
made together with the costs and expenses provided for in Section 5.4. Each
prepayment shall be in a minimum amount of Five Million Dollars ($5,000,000)
plus any One Million Dollar ($1,000,000) multiple thereof or the full amount of
any Credit Facility. No part of the Term Loan shall be available for
re-borrowing. The Revolver shall be available for re-borrowing only until the
Revolver Maturity Date.


 


5.3           Mandatory
Prepayment.


 


(a)  Sale of Collateral. On any sale of a
Terminal or any other collateral that has a value in excess of Two Million
Dollars (US$2,000,000), the Borrowers shall apply the proceeds of any such sale
toward the repayment of the Credit Facilities. All payments received by the
Administrative Agent under this Section 5.3 shall be applied to reduce the
aggregate outstanding Advances in inverse order of maturity.


 


(b)  Casualty and Condemnation.  (i)  In
the event of any Casualty or Condemnation with respect to a Terminal, the
estimated cost of restoration of which is in excess of Five Million Dollars
($5,000,000), any such award, compensation or insurance proceeds shall be
delivered in accordance with the instruction of the Administrative Agent for
application pursuant to this


 


14

















 


Agreement
to be held and applied to the costs of repair or restoration of such Terminal. If,
contrary to such provision, any such award, compensation or insurance proceeds
are paid to a Security Party rather than to the Administrative Agent, such
Security Party hereby agrees to transfer any such payment to the Administrative
Agent. All amounts held by the Administrative Agent pursuant to this Section
5.3(b) on account of any award, compensation or insurance proceeds either paid
directly to the Administrative Agent or turned over to the Administrative Agent
shall be held as security for the performance of the Borrowers’ obligations
hereunder, until restoration of such Terminal is complete, whereupon such
amounts, to the extent not previously applied to Borrowers’ obligations
hereunder, shall be delivered to the Borrowers. In the event of any Casualty or
Condemnation with respect to a Terminal, the estimated cost of restoration of
which is Five Million Dollars ($5,000,000) or less, any such award,
compensation or insurance proceeds shall be delivered in accordance with the
instruction of the Borrower whose Terminal suffered the Casualty or
Condemnation;


 


(ii)           The
Borrowers may appear in any proceeding or action to negotiate, prosecute,
adjust or appeal any claim for any award, compensation or insurance payment on
account of any such Casualty or Condemnation and shall pay all expenses thereof.
At the Borrowers’ reasonable request, and at the Borrowers’ sole cost and
expense, the Borrowers and the Administrative Agent shall participate in any
such proceeding, action, negotiation, prosecution or adjustment;


 


(iii)          If
any Security Party shall receive notice of a Casualty or of an actual, pending
or threatened Condemnation of a Terminal or any interest therein, such Security
Party shall give notice thereof to the Administrative Agent promptly after the
receipt of such notice.


 


(iv)          In
the event of a Casualty that is not a Significant Casualty or receipt of notice
by a Security Party of a Condemnation that is not a Significant Condemnation,
the Borrowers shall, not later than thirty (30) days after such occurrence,
deliver to Administrative Agent an Officer’s Certificate stating that such
Condemnation is not a Significant Condemnation or that such Casualty is not a
Significant Casualty (as the case may be), and that, at the Borrowers’ sole
cost and expense, the Borrowers’ shall promptly and diligently restore by the
date stated therein the Terminal in accordance with this Agreement and the
other Security Documents. If the Borrowers’ timely deliver the Officer’s
Certificate described above, then the Borrowers shall, at the Borrowers’ sole
cost and expense, promptly and diligently restore (by the date stated in such
Officer’s Certificate) the Terminal in conformity with the requirements of this
Agreement and the Security Documents and all requirements of Applicable Law so
as to restore such Terminal to the same or better condition, operation,
function and value as existed immediately prior to such Casualty or
Condemnation. Upon completion of such restoration, the Borrowers shall furnish
to the Administrative


 


15

















 


Agent an architect’s certificate of substantial
completion and an Officer’s Certificate confirming that such restoration has
been completed pursuant to this Agreement and the Security Documents.


 


(v)           In
the event of (A) a Significant Casualty, (B) the receipt of notice by a
Security Party of a Significant Condemnation or (C) the failure of the
Borrowers to timely deliver the Officer’s Certificate described in subclause
(iv) above, the Borrowers shall either: (1), in the case of subclauses (A) or
(B) above, provide to the Administrative Agent such evidence as may be
satisfactory to the Lenders in their sole discretion to demonstrate that the
Borrowers (x) are sufficiently insured against the event or condition giving
rise to the Significant Casualty or Significant Condemnation and (y) that such
Significant Casualty or Significant Condemnation will not materially impair the
operation of the affected Terminal; or (2) prepay on the next Payment Date (or,
if such Payment Date is within fifteen (15) days of the Administrative Agent’s
receipt of such notice of prepayment in full or the expiration of such
thirty-day period, as the case may be, on the Payment Date next following such
Payment Date) such amount of the Credit Facilities (together with interest
thereon and any other monies payable in respect of such prepayment pursuant to
this Article 5) as shall result in the Fair Market Value (after giving effect
to any Casualty or Condemnation) of the Terminals being at least equal to One
Hundred Thirty-Two percent (132%) of the outstanding aggregate balance of the
Credit Facilities.


 


5.4           Interest
and Costs with Prepayments/Application of Prepayments. Any prepayment of
the Advances made hereunder shall be subject to the condition that on the date
of prepayment all accrued interest to the date of such prepayment shall be paid
in full, together with any and all costs or expenses incurred by any Lender in
connection with any breaking of funding (as certified by such Lender, which
certification shall, absent any manifest error, be conclusive and binding on
the Borrowers) and provided that the Borrowers shall have no obligation
regarding breaking of funding with respect to any prepayment made in accordance
with Section 5.2 on an Interest Payment Date.


 


6.             INTEREST
AND RATE


 


6.1           Applicable
Rate. (a) The Credit Facilities shall bear interest at the Applicable Rate,
which shall be the rate per annum which is equal to the aggregate of (a) the
LIBO Rate for the relevant Interest Period plus (b) the Applicable Margin. The
Applicable Rate shall be determined by the Administrative Agent two (2)
Business Days prior to the first (1st) day of the relevant Interest
Period and the Administrative Agent shall promptly notify the Borrowers in
writing of the Applicable Rate as and when determined. Each such determination,
absent manifest error, shall be conclusive and binding upon the Borrowers.


 


16

















 


6.2           Default
Rate. Any amounts due under this Agreement, not paid when due, whether by
acceleration or otherwise, shall bear interest thereafter from the due date
thereof until the date of payment at a rate per annum equal to the Default
Rate.


 


6.3           Interest
Periods.  The Borrowers shall give
the Administrative Agent an Interest Notice specifying the Interest Period
selected at least three (3) Business Days prior to the end of any then
existing Interest Period. If at the end of any then existing Interest Period
the Borrowers fail to give an Interest Notice the relevant Interest Period
shall be three (3) months. The Borrowers’ right to select an Interest
Period shall be subject to the restriction that no selection of an Interest
Period shall be effective unless each Lender is satisfied that the necessary
funds will be available to such Lender for such period and that no Event of
Default or event which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default shall have occurred and be continuing.


 


6.4           Interest
Payments. Accrued interest on the Credit Facilities shall be payable in
arrears on the last day of each Interest Period, except that if the Borrowers
shall select an Interest Period in excess of three (3) months, accrued interest
shall be payable during such Interest Period on each three (3) month
anniversary of the commencement of such Interest Period and upon the end of
such Interest Period.


 


7.             PAYMENTS


 


7.1           Place
of Payments, No Set Off. All payments to be made hereunder by the Borrowers
shall be made to the Administrative Agent, not later than 11 a.m. New York time
(any payment received after 11 a.m. New York time shall be deemed to have been
paid on the next Business Day) on the due date of such payment, at its office
located at 200 Park Avenue, New York, New York 10166 or to such other office of
the Administrative Agent as the Administrative Agent may direct, without
set-off or counterclaim and free from, clear of, and without deduction or
withholding for, any Taxes (other than Excluded Taxes), provided, however, that
if the Borrowers shall at any time be compelled by law to withhold or deduct
any Taxes (other than Excluded Taxes) from any amounts payable to the Lenders
hereunder, then the Borrowers shall pay such additional amounts in Dollars as
may be necessary in order that the net amounts received after withholding or
deduction shall equal the amounts which would have been received if such
withholding or deduction were not required and, in the event any withholding or
deduction is made, whether for Taxes or otherwise, the Borrowers shall promptly
send to the Administrative Agent such documentary evidence with respect to such
withholding or deduction as may be required from time to time by the Lenders.


 


7.2           Tax
Credits. If any Lender obtains the benefit of a credit against the
liability thereof for Taxes imposed by any taxing authority for all or part of
the Taxes as to which the Borrowers or any Security Party have paid additional
amounts as aforesaid, then such Lender shall pay an amount to the Borrowers or
such Security Party, as the case may be, which that Lender determines will
leave it (after such payment) in the same position as it would have been had
the Tax payment not been made by the Borrowers or such Security Party, as the
case may be. Each Lender agrees that in the event that Taxes (other than
Excluded Taxes) are imposed on account of the situs of its loans hereunder,
such Lender, upon acquiring knowledge of such event, shall, if, in the opinion
of that Lender, commercially reasonable and if, in the reasonable opinion of


 


17

















 


that
Lender, not prejudicial to it, shift such loans on its books to another office
of such Lender so as to avoid the imposition of such Taxes. Nothing contained
in this clause shall in any way prejudice the right of the Lenders to arrange
their tax affairs in such way as they, in their sole discretion, deem
appropriate. In particular, no Lender shall be required to obtain such tax
credit, if this interferes with the way such Lender normally deals with its tax
affairs.


 


7.3           Sharing
of Setoffs. Each Lender agrees that if it shall, through the exercise of a
right of banker’s lien, setoff or counterclaim or pursuant to a secured claim
under Section 506 of the Federal Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim, exercised or received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of the Credit Facilities as a result of which its funded Commitment
shall be proportionately less than the funded Commitment of any other Lender,
it shall be deemed simultaneously to have purchased from such other Lender at
face value, and shall promptly pay to such other Lender the purchase price for,
a participation in the funded Commitment of such other Lender so that the
aggregate funded Commitment of each Lender shall be in the same proportion to
the aggregate funded Commitments then outstanding as its funded Commitment
prior to such exercise of banker’s lien, setoff or counterclaim or other event
was to the principal amount of all funded Commitments outstanding prior to such
exercise of banker’s lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 7.3 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Any Lender holding a participation in a
funded Commitment deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with respect to any and all
moneys owing to such Lender by reason thereof as fully as if such Lender had
made an advance in the amount of such participation. The Borrowers expressly
consent to the foregoing arrangement.


 


7.4           Computations;
Business Days.


 


(a)  All computations of interest and fees shall
be made by the Administrative Agent or the Lenders, as the case may be, on the
basis of a 360-day year, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
interest or fees are payable. Each determination by the Administrative Agent or
the Lenders of an interest rate or fee hereunder shall be conclusive and
binding for all purposes, absent manifest error;


 


(b)  Whenever any payment hereunder or under the
Notes shall be stated to be due on a day other than a Business Day, such
payment shall be due and payable on the next succeeding Business Day unless the
next succeeding Business Day falls in the following calendar month, in which
case it shall be payable on the immediately preceding Business Day.


 


8.             EVENTS
OF DEFAULT


 


8.1           Events
of Default. The occurrence of any of the following events shall be an Event
of Default:


 


18



















 


(a)           Payment
Default. If either of the Borrowers defaults in the payment of any
principal or interest, within three (3) Business Days of its due date;


 


(b)           Other
default. (x) except as set forth in subclause (y) of this Section 8.
1(b), if any Security Party fails to observe or perform any of the covenants,
conditions, undertakings, agreements or obligations on its part contained in
the Agreement, the Notes and any of the Security Documents or shall in any
other way be in breach of or do or cause to be done any act repudiating or
evidencing an intention to repudiate the Agreement, the Notes and any of the
Security Documents and such default (if in the reasonable opinion of the
Administrative Agent capable of remedy) is not remedied within thirty (30) days
after notice of the default has been given to the Borrowers or (y) if either of
the Borrowers fails to have in effect at any time any insurances required to be
maintained by the Borrowers hereunder or under the Mortgages; or


 


(c)           Misrepresentation
or Breach of Warranty. If any representation, warranty or statement made,
or deemed to be made under the Agreement, the Notes and any of the Security
Documents or in any accounts, certificate, notice instrument, written statement
or opinion delivered by any Security Party under or in connection with the
Agreement, the Notes and any of the Security Documents is incorrect in any
material respect when made, or deemed to be made; or


 


(d)           Execution.
If a distress or execution or other process of a court of authority is levied
on any of the property of any Security Party, SNTG Bermuda or the members of a
Significant Subsidiary Group before or after final judgment or by order of any
competent court or authority for an amount in excess of Five Million Dollars
($5,000,000), or with respect to the Borrowers One Hundred Thousand Dollars
($100,000), or the equivalent in any other currency and is not satisfied or
stayed (with a view to being contested in good faith) within thirty (30) days
of levy; or


 


(e)           Insolvency
Events. If any Security Party, SNTG Bermuda or the members of a Significant
Subsidiary Group:


 


(i)            resolves
to make any filing under any Bankruptcy Law or to appoint, or applies for, or
consents to the appointment of, a receiver, administrative receiver, trustee,
administrator or liquidator of itself or of all or part of its assets other
than for the purposes of a merger or amalgamation pursuant to
Section 9.2(h); or


 


(ii)           is
unable or admits its inability to pay its debts as they fall due; or


 


(iii)          makes
a general assignment for the benefit of creditors; or


 


(iv)          ceases
trading or threatens to cease trading (except in the case of SNTG Bermuda or a
Significant Subsidiary Group as part of the ordinary course of business or with
the consent of the Agents and the Lenders, such consent not to be unreasonably
withheld); or


 


19

















 


(v)           appoints
a receiver, administrative receiver, administrator, liquidator or trustee under
any Bankruptcy Law or any statutory provision which the Administrative Agent in
its discretion considers analogous thereto; or


 


(vi)          makes
any filing under any Bankruptcy Law.


 


(f)            Insolvency
Proceedings. If any proceedings are commenced or threatened, or any order
or judgment is given by any court, for the bankruptcy, liquidation, winding up,
administration or re-organization of any Security Party, SNTG Bermuda or the
members of any Significant Subsidiary Group or for the appointment of a
receiver, administrative receiver, administrator, liquidator or trustee of any
Security Party, SNTG Bermuda or the members of any Significant Subsidiary Group
or of all or part of the assets of any Security Party, SNTG Bermuda or the
members of any Significant Subsidiary Group, or if any person appoints or
purports to appoint such receiver, administrative receiver, administrator,
liquidator or trustee, which proceeding is not discharged within thirty (30)
days of its commencement; or


 


(g)           Impossibility
or Illegality. Unless covered by Section 11, if any event occurs which
would, or would with the passage of time, render performance of any of the
Agreement, the Notes and any of the Security Documents impossible, unlawful or
unenforceable by any of the Creditors; or


 


(h)           Revocation
or Modification of Consents Etc. If any material consent, license, approval
or authorization which is now or which at any time becomes necessary to enable
any Security Party to comply with any of its respective obligations under or
pursuant to the Agreement, the Notes and any of the Security Documents is revoked,
withdrawn or withheld, or modified in a manner which the Administrative Agent
reasonably considers is, or may be, prejudicial to the interests of it, the
Administrative Agent, or the Lenders, in a material manner, or any material
consent, license, approval or authorization ceases to remain in full force and
effect; or


 


(i)            Curtailment
of Business. If the business of any Security Party is wholly or
substantially curtailed by an intervention by or under authority of any
government, or if all or a substantial part of the undertaking, property or
assets of any Security Party is seized, nationalized, expropriated or
compulsorily acquired by or under authority of any government or any Security
Party disposes or threatens to dispose of a substantial part of its business or
assets; or


 


(j)            Acceleration
of Other Indebtedness. If any other indebtedness or obligation for borrowed
money of any Security Party or SNTG Bermuda becomes due or capable of being
declared due prior to its stated maturity by reason of default on the part of
that entity or the members of any Significant Subsidiary Group (as the case may
be), or is not repaid or satisfied on the due date for its repayment or any
such other loan, guarantee or indebtedness becomes enforceable save, in either
case, for amounts (except with respect to the Borrowers) of less than Five
Million Dollars ($5,000,000) in aggregate or, with respect to the Borrowers Ten
Thousand Dollars ($10,000), or the equivalent in any other currency, and claims
contested in good faith; or


 


20

















 


(k)           Cross-Default.
If there is a default by any Security Party or SNTG Bermuda under any other
material contract or agreement with respect to indebtedness or obligations for
borrowed money and such default is not cured within any applicable cure period
save, in either case, for amounts (except with respect to the Borrowers) of
less than Five Million Dollars ($5,000,000) in aggregate or, with respect to
the Borrowers Ten Thousand Dollars ($10,000), or the equivalent in any other
currency, and claims contested in good faith; or


 


(l)            Claims
Against the Guarantors’ Assets. Except for Permitted Liens, if a lien,
arrest, distress or similar charge is levied upon or against any Terminal or
any substantial part of the assets of either Guarantor (on a consolidated
basis) and is not discharged within fourteen (14) Business Days after either
Borrower or such Guarantor has become aware of the same; or


 


(m)          Guarantors’
Business. If all or a substantial part of either Guarantor’s business is
destroyed, abandoned, seized, appropriated or forfeited for any reason; or


 


(n)           SNSA’s
Business. If SNSA, through its subsidiaries, ceases to carry on the
business of transportation of bulk liquids including liquid chemicals as a core
business; or


 


(o)           Ownership.
If (i) either of the Borrowers cease to be a wholly owned indirect subsidiary
of SNSA or (ii) members of the Stolt-Nielsen family cease for any reason to own
and control, directly or indirectly, at least thirty per centum (30%) of the
issued voting share capital of SNSA; or (iii) any individual shareholder, or
group of shareholders acting in concert, outside the Stolt-Nielsen family, owns
a greater proportion of the issued voting share capital of SNSA than members of
the Stolt-Nielsen family; or


 


(p)           Final
Judgment. If any Security Party, SNTG Bermuda or any Shipowning Subsidiary
fails to comply with any non appealable court order or fails to pay a final
unappealable judgement against it, in either case, in excess of five million
dollars ($5,000,000), within fourteen (14) days of such order or judgment (save
for judgments against Shipowning Subsidiaries which are covered by insurance
where insurance has not been disavowed); or


 


(q)           Mortgages.
There is a “Default” under either of the Mortgages, as such term is defined
therein; or


 


(r)            Surveys.
If the Administrative Agent shall fail to have received either (i) a
satisfactory Environmental Audit with respect to each Terminal or (ii)
satisfactory and accurate surveys with respect to each Terminal together with
satisfactory amended title insurance policies, within the time frames specified
for their delivery in Sections 4.4(a) and 4.4(b) respectively.


 


Upon
and during the continuance of any Event of Default, the Lenders’ obligation to
make the Credit Facilities available shall cease and the Administrative Agent
may, and on the instructions of the Majority Lenders shall, by notice to the
Borrowers, declare the entire unpaid balance of the then outstanding Advances,
accrued interest and any other sums payable by the Borrowers hereunder or under
the Notes due and payable, whereupon the same shall forthwith be due and
payable without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived; provided that upon the happening of an event
specified in subsections (e) or (f) of this Section 8.1 with
respect to the Borrowers, the Notes shall be immediately due and payable
without declaration or other notice to the Borrowers. In such 


 


21

















 


event,
the Lenders may proceed to protect and enforce their rights by action at law,
suit in equity or in admiralty or other appropriate proceeding, whether for
specific performance of any covenant contained in this Agreement, in the Notes
or in any Security Document, or in aid of the exercise of any power granted
herein or therein, or the Lenders may proceed to enforce the payment of the
Notes or to enforce any other legal or equitable right of the Lenders, or
proceed to take any action authorized or permitted under the terms of any
Security Document or by applicable law for the collection of all sums due, or
so declared due, on the Notes. Without limiting the foregoing, the Borrowers
agree that during the continuance of any Event of Default each of the Lenders
shall have the right to appropriate and hold or apply (directly, by way of
set-off or otherwise) to the payment of the obligations of the Borrowers to the
Lenders hereunder and/or under the Notes (whether or not then due) all moneys
and other amounts of the Borrowers then or thereafter in possession of any
Lender, the balance of any deposit account (demand or time, mature or
unmatured) of the Borrowers then or thereafter with any Lender and every other
claim of the Borrowers then or thereafter against any of the Lenders.


 


8.2           Indemnification.
The Borrowers agree to, and shall, indemnify and hold the Agents and the
Lenders harmless against any loss, as well as against any costs or expenses
(including legal fees and expenses), which the Agents or the Lenders sustain or
incur as a consequence of any default in payment of the principal amount of the
Credit Facilities, interest accrued thereon or any other amount payable
hereunder, under the Notes or under any Security Documents, including, but not
limited to, all actual losses incurred in liquidating or re-employing fixed
deposits made by third parties or funds acquired to effect or maintain the
Credit Facilities or any portion thereof. Any Agent’s or Lender’s certification
of such costs and expenses shall, absent any manifest error, be conclusive and
binding on the Borrowers.


 


8.3           Application of
Moneys. Except as otherwise provided in any Security Document, all moneys
received by the Agents or the Lenders under or pursuant to this Agreement, the
Notes or any of the Security Documents after the happening of any Event of
Default (unless cured to the satisfaction of the Majority Lenders) shall be
applied by the Administrative Agent in the following manner:


 


(a)           first,
in or towards the payment or reimbursement of any expenses or liabilities
incurred by the Administrative Agent and the Collateral Agent, or the Lenders
in connection with the ascertainment, protection or enforcement of their rights
and remedies hereunder, under the Notes and under any of the Security
Documents,


 


(b)           secondly,
in or towards payment of any interest owing in respect the Credit Facilities,


 


(c)           thirdly,
in or towards repayment of principal of the Credit Facilities,


 


(d)           fourthly,
in or towards payment of all other sums which may be owing to the
Administrative Agent or the Lenders under this Agreement, under the Notes or
under any of the Security Documents, and


 


(e)           fifthly,
the surplus (if any) shall be paid to the Borrowers or to whosoever else may be
entitled thereto.


 


22

















 


9.             COVENANTS


 


9.1           Affirmative
Covenants. The Borrowers hereby covenant and undertake with the Lenders
that, from the date hereof and so long as any principal, interest or other
moneys are owing in respect of this Agreement, under the Notes or under any of
the Security Documents, the Borrowers will:


 


(a)           Performance
of Agreements. duly perform and observe, and procure the observance and
performance by all other parties thereto (other than the Agents and the
Lenders) of, the terms of this Agreement, the Notes and the Security Documents;


 


(b)           Notice
of Default, etc. promptly upon, and in any event no later than five (5)
Business Days after, obtaining knowledge thereof, inform the Administrative
Agent of the occurrence of (a) any Event of Default or of any event which,
with the giving of notice or lapse of time, or both, would constitute an Event
of Default, (b) any litigation or governmental proceeding pending or
threatened (by means of written notification from the adverse party or its
counsel) against it, any other Security Party or against any of its or any
other Security Party’s Subsidiaries which could reasonably be expected to have
a Material Adverse Effect, including but not limited to, in respect of any
Environmental Action or Environmental Event, and (c) any other event or
condition which is reasonably likely to have a Material Adverse Effect;


 


(c)           Obtain
Consents. without prejudice to Section 2.1 and this Section 9.1,
obtain every consent and do all other acts and things which may from time to
time be necessary or advisable for the continued due performance of all its and
the other Security Parties’ respective obligations under this Agreement, under
the Notes and under the Security Documents;


 


(d)           Additional
Filings/Notifications. each Security Party shall ensure that (i) any
filings required to ensure that it is properly authorized to do business in any
relevant jurisdiction will be made and/or effected promptly and within any
applicable time limits imposed by law; and (ii) the Lenders and the Agents are
immediately notified if any Security Party changes the place of its chief
executive office or principal place of business in the United States of
America.


 


(e)           Financial
Statements. (i)  SNSA will supply to
the Administrative Agent (with sufficient copies for distribution to each of
the Lenders), without request on a consolidated basis:


 


(A)          SNSA’s
annual consolidated audited accounts prepared in accordance with GAAP within
one hundred twenty (120) days (or such earlier date on which such accounts are
generally released by SNSA) after the end of the fiscal year to which they
relate and such financial statements shall accurately and fairly represent the
financial condition of SNSA and its Consolidated Subsidiaries; and


 


(B)           SNSA’s
unaudited consolidated quarterly financial statements not later than ninety
(90) days (or such earlier date on which such accounts are generally released
by SNSA) after the end of the relevant fiscal quarter together with a duly
executed Certificate of 


 


23

















 


Compliance certifying (inter alia) compliance with the covenants
contained in Section 9.3; and


 


(C)           the annual
update to SNSA’s three year plan when approved by SNSA’s board of directors
within 30 days of such approval.


 


(ii)           each
of the Borrowers will supply to the Administrative Agent (with sufficient
copies for distribution to each of the Lenders), without request on a
consolidated basis:


 


(A)          each of the
Borrowers’ unaudited year-end financial statements, certified by the Chief
Financial Officer of SNSA within ninety (90) days after the end of the fiscal
year to which they relate and such financial statement shall accurately and
fairly represent the financial condition of each of the Borrowers and their
subsidiaries; and


 


(B)           each of
the Borrowers’ unaudited quarterly financial statements, certified by the Chief
Financial Officer of SNSA within sixty (60) days after the end of the relevant
fiscal quarter.


 


(f)            Other
information. each Security Party shall promptly supply to the
Administrative Agent (with sufficient copies for distribution to each of the
Lenders) copies of all financial and other information from time to time given
by SNSA to its shareholders and/or filed with the Securities and Exchange
Commission (provided that any information made available to the public on SNSA’s
World Wide Web site (the “Web Site”) shall, subject to the Administrative Agent
having been duly notified in writing by the Borrowers or a Guarantor that new
information has been made available on the Web Site, be deemed supplied for
this purpose) and such information and explanations as the Administrative Agent
may from time to time reasonably require in connection with the operation of
the Terminals and the Borrowers’ and the Guarantors’ profits and liquidity.


 


(g)           Certificate
of Compliance. the Borrowers and the Guarantors shall deliver to the
Administrative Agent together with the accounts described in Section 9.1(e) a
duly executed Certificate of Compliance (with copies sufficient for the
Lenders) not more than ninety (90) days after the end of each of the first
three fiscal quarters of SNSA and not more than ninety (90) days after the end
of the fiscal year of SNSA, certifying (inter alia) compliance with the
covenants contained in Section 9.3 and Section 9.4.


 


(h)           Corporate
Existence. the Borrowers shall, and will procure that each Guarantor shall,
(i) remain duly formed and validly existing under the laws of its respective
jurisdiction of incorporation, (ii) remain authorized to do business in each
jurisdiction in which it transacts its business, (iii) continue to have the
power to carry on its business as it is now being conducted and to enter into
and perform its obligations under this Agreement and the Security Documents to
which it is a party, and (iv) continue to comply with all statutory, regulatory
and other requirements relative to its business which could reasonably be
expected to have a Material Adverse Effect on its business, assets or
operations, financial or otherwise;


 


(i)            Books
and Records. at all times keep, and cause each Guarantor to keep, proper
books of record and account into which full and correct entries shall be made
in 


 


24

















 


accordance with GAAP, and keep such records in such places to ensure
that they are easily accessible in the event that the Administrative Agent
wishes to inspect them;


 


(j)            Taxes
and Assessments. pay and discharge, and cause each Guarantor to pay and discharge,
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or property prior to the date upon which penalties attach
thereto; provided, however, that it shall not be required to pay and discharge,
or cause to be paid and discharged, any such tax, assessment, charge or levy so
long as the legality thereof shall be contested in good faith and by
appropriate proceedings or other acts and it shall set aside on its books
adequate reserves with respect thereto;


 


(k)           Inspection.
allow, and cause each Guarantor to allow any representative or representatives
designated by the Administrative Agent, subject to applicable laws and
regulations, to visit and inspect any of its properties (including, without
limitation, the Terminals), and, on request, to examine its books of account,
records, reports, agreements and other papers and to discuss its affairs,
finances and accounts with its officers, all at such times during business
hours and on reasonable notice and as often as the Administrative Agent
requests;


 


(l)            Inspection
and Survey Reports. if the Administrative Agent shall so request, the
Borrowers shall provide the Administrative Agent with copies of all internally
generated inspection or survey reports on the Terminals;


 


(m)          Compliance
with Statutes, Agreements, etc. do or cause to be done, and cause each
Guarantor to do and cause to be done, all things necessary to comply with all
contracts or agreements to which it, or any Guarantor is a party, and all laws,
and the rules and regulations thereunder, applicable to the Borrowers or such
Guarantor, including, without limitation, those laws, rules and regulations
relating to employee benefit plans and environmental matters;


 


(n)           Environmental
Matters. promptly upon the occurrence of an Environmental Event that could
reasonably be expected to have a Material Adverse Effect, provide to the
Administrative Agent a certificate of a chief executive officer thereof,
specifying in detail the nature of such condition and its proposed response.


 


(o)           Brokerage
Commissions, etc. indemnify and hold the Agents and the Lenders harmless
from any claim for any brokerage commission, fee, or compensation from any
broker or third party resulting from the transactions contemplated hereby;


 


(p)           Insurance.
maintain, and cause each other Security Party to maintain, with financially
sound and reputable insurance companies, insurance on all their respective
properties and against all such risks and in at least such amounts (in any
event, at least $100,000,000 per any one accident or occurrence) as are usually
insured against by companies of established reputation engaged in the same or
similar business from time to time; and


 


(q)           Pari
Passu. each of the Borrowers and the Guarantors shall ensure that its respective
obligations under the Agreement, the Notes, and the Security Documents shall at
all times rank at least pari passu with all its other present and future
unsecured and unsubordinated 


 


25

















 


indebtedness with the exception of any obligations which are
mandatorily preferred by any applicable laws to companies generally and not by
contract.


 


(r)            Admissibility
in Evidence. each of the Borrowers and the Guarantors shall on the request
of the Lenders or the Administrative Agent obtain all necessary authorizations,
consents, approvals, licenses, exemptions, filings, registrations, recordings
and notarizations required or advisable in connection with the admissibility in
evidence of the Agreement, the Notes, and the Security Documents or any of them
in any relevant jurisdiction in which proceedings have been commenced.


 


(s)           Most
Favored Nation. if any of the covenants or events of default provided by
any Security Party to any other banks or financial institutions between the
Closing Date and November 30, 2004, on terminal or vessel secured agreements
for indebtedness should be more favorable to such banks than those contained in
this Agreement or any of the Security Documents (the “Revised Terms”), the
Borrowers and/or SNSA, as the case may be, shall (i) notify the Administrative
Agent in writing of the Revised Terms as soon as it becomes aware of the same
and (ii) upon the request of the Administrative Agent enter into such documents
or execute such amendments to this Agreement and/or any other Security
Documents as the Administrative Agent shall require in order to incorporate
those Revised Terms (or their substantial equivalent), on a proportional basis,
into this Agreement accompanied by such legal opinions as the Administrative
Agent shall require and in the meantime this Agreement shall be deemed so
amended; provided that this clause is not
intended to cause the Borrowers to become bound by clauses generally associated
with vessel-related financings but not with real estate related financings. The
Borrowers hereby represent and warrant that no such Revised Terms have been
granted to any other banks or financial institutions between June 28, 2004 and
the Closing Date.


 


(t)            ERISA.
forthwith upon learning of the occurrence of any material liability of any
Security Party, any Subsidiary thereof or any ERISA Affiliate pursuant to ERISA
in connection with the termination of any ERISA Plan or withdrawal or partial
withdrawal of any multi-employer plan (as defined in ERISA) or of a failure to
satisfy the minimum funding standards of Section 412 of the Code or Part 3 of
Title I of ERISA by any ERISA Plan for which any Security Party, any Subsidiary
thereof or any ERISA Affiliate is plan administrator (as defined in ERISA), furnish
or cause to be furnished to the Lenders written notice thereof.


 


9.2           Negative Covenants.
the Borrowers hereby covenant and undertake with the Lenders that, from the
date hereof and so long as any principal, interest or other moneys are owing in
respect of this Agreement, under the Notes or under any of the Security
Documents, the Borrowers will not, and will procure that no other Security
Party, where so specified, will, without the prior written consent of the
Majority Lenders (or all of the Lenders if required by Section 15.8):


 


(a)           Liens.
create, assume or permit to exist, any mortgage, pledge, lien, charge,
encumbrance or any security interest whatsoever upon any of its assets except
Permitted Liens.


 


26

















 


(b)           No
Voluntary Bankruptcy. with respect to any Security Party, (i) commence
any case, proceeding or action under the Bankruptcy Law or any existing or
future Law of any jurisdiction (domestic or foreign) relating to bankruptcy,
insolvency, reorganization, arrangement, winding up, liquidation, dissolution,
composition or other relief with respect to the Borrowers or their debts, or
(ii) seek appointment of a receiver, trustee, custodian or other similar
official for the Borrowers or for the benefit of all or substantially all of
its creditors.


 


(c)           Change
in Business. materially change the nature of its business or commence any
business materially different from its current business of chemical storage;


 


(d)           Sale or
Pledge of Shares. with respect to any Security Party, sell, assign,
transfer, pledge or otherwise convey or dispose of any of the shares (including
by way of spin-off, installment sale or otherwise) of the capital stock of
either of the Borrowers;


 


(e)           Sale of
Assets. sell, or otherwise dispose of, any Terminal (except that the
Borrowers may sell a Terminal if no Event of Default or event which with the
lapse of time, the giving of notice or both would become an Event of Default
has occurred and is continuing and it complies with Section 5.3 hereof) or,
with respect to any Guarantor, any other asset (including by way of spin-off,
installment sale or otherwise) which is substantial in relation to its assets
taken as a whole, other than such sales by one Guarantor to another;


 


(f)            Changes
in Offices or Names. change jurisdiction of incorporation or the location
of the chief executive office of any Security Party, the office of the chief
place of business of any such parties or the office of the Security Parties in
which the records relating to the earnings or insurances of any Terminal are
kept unless the Lenders shall have received sixty (60) days prior written
notice of such change;


 


(g)           Merger
or Amalgamation. without the prior written consent of the Administrative
Agent, with respect to any Security Party, permit any merger or amalgamation of
all or part of any Security Party unless (i) such Security Party, as the
case may be, remains the surviving entity following any such merger or
amalgamation; and (ii) such surviving entity is not divested of any
material part of the assets or operations of the merging or amalgamating
entities with its core business of chemical transportation maintained; and
(iii) in the case of SNSA only, such merger or amalgamation has been
approved by a duly passed resolution of SNSA’s shareholders if required by
applicable Law.


 


(h)           Restrictions
on Investments. except as expressly
permitted under this Section 9.2(h) without the prior written consent of the
Majority Lenders, with respect to any Security Party, make any Investment or permit any of its Subsidiaries to make any Investments
in a non-consolidated entity and/or in business areas other than the core
business of the transportation, storage and distribution of bulk liquid
chemicals and other products customary for chemical and product tankers,
including without limitation:


 


(i)            no further Investments in SOSA except (A) in
relation to the conversion of SNTG’s subordinated shareholder loan of Fifty
Million Dollars ($50,000,000) into SOSA equity and (B) the guarantee of SOSA
obligations up to a maximum aggregate 


 


27

















 


amount not exceeding $96,000,000
which may arise from time to time under (I) a guarantee and indemnity in favor
of Nordea Bank Norge ASA dated 30 June 2003 of certain obligations arising
under a secured $100,000,000 bank loan and guarantee facility agreement amended
and restated on 30 June 2003 (II) a guarantee and indemnity in favor of DnB NOR
Bank ASA dated 21 August 2003 of certain obligations arising under a secured
$44,000,000 bank guarantee facility agreement dated 21 August 2003 (III) a
guarantee and indemnity dated 27 August 2003 in favor of DnB NOR Bank ASA of
certain obligations arising under a $28,000,000 reimbursement agreement dated
27 August 2003 and/or (IV) a guarantee and indemnity dated 20 February 2004 in
favor of HSBC Bank plc of certain obligations arising under a $100,000,000
bonding line facility agreement dated 20 February 2004, provided that the
guarantees referred to in (I), (II), (III) and (IV) above shall not be extended
beyond the relevant termination dates specified, as at the date of this
Agreement, for and in the various facilities referred to in (I), (II), (III)
and (IV) above;


 


(ii)           no Investments in excess of an aggregate amount of Two Million Dollars
($2,000,000) per annum except (A) where SNSA has, on a consolidated basis,
freely available Liquidity in excess of Fifty Million Dollars ($50,000,000)
after such Investment and (B) for Investments by Stolt Sea Farm plc in any of its
Subsidiaries or any other entity or project within the sea farming industry;


 


9.3           Financial Covenants.
each of the Borrowers hereby covenants and undertakes with the Lenders that,
from the date hereof and so long as any principal or interest are outstanding
or other moneys are owing in respect of this Agreement, under the Notes or
under any of the Security Documents, it shall:


 


(a)           Positive
Net Worth. maintain a positive Net Worth;


 


(b)           No
additional Indebtedness. not incur any Indebtedness, excluding Indebtedness
to the Agents or any of the Lenders hereunder, unless such Indebtedness is
subordinated to Indebtedness to the Agents or any of the Lenders hereunder on
terms satisfactory to the Majority Lenders; provided, however, that the
Borrowers may raise funds for customers for specific customer related capital
expenditures, which funds shall not exceed Twenty Million Dollars
(US$20,000,000) in the aggregate;


 


9.4           Financial Covenants
of SNSA. each of the Borrowers hereby covenants and undertakes with the Lenders
that, from the date hereof and so long as any principal or interest are
outstanding or other moneys are owing in respect of this Agreement, under the
Notes or under any of the Security Documents, it shall procure that SNSA will:


 


28

















 


(a)           Consolidated
Debt to Consolidated Tangible Net Worth. maintain a Consolidated Debt to
Consolidated Tangible Net Worth ratio of a maximum 2.00 to 1.00 as calculated
at the end of each fiscal quarter of SNSA;


 


(b)           Consolidated
Tangible Net Worth. maintain at all times a Consolidated Tangible Net Worth
of not less than Six Hundred Million Dollars ($600,000,000) or the equivalent
in any other currency as calculated at the end of each fiscal quarter of SNSA;


 


(c)           Consolidated
EBITDA to Consolidated Interest Expense. maintain a Consolidated EBITDA to
Consolidated Interest Expense ratio equal to or greater than 2.00 to 1.00 in
each instance based on the four most recent fiscal quarters for which financial
information is available;


 


10.           ASSIGNMENT


 


This
Agreement shall be binding upon, and inure to the benefit of, the Borrowers and
the Lenders, the Agents and their respective successors and assigns, except
that the Borrowers may not assign any of its rights or obligations hereunder. Each
Lender shall be entitled to assign its rights and obligations under this
Agreement or grant participation(s) in the Credit Facilities to any Eligible
Assignee (in a minimum amount of not less than $5,000,000), and such Lender
shall forthwith give notice of any such assignment or participation to the
Borrowers and pay the Administrative Agent an assignment fee of $2,500 for each
such assignment or participation which is not made to a subsidiary, holding
company or affiliate of the assigning Lender; provided, however, that any such
assignment must be made pursuant to an Assignment and Assumption Agreement. The
Borrowers will take all reasonable actions requested by the Agents or any
Lender to effect such assignment, including, without limitation, the execution
of a written consent to any Assignment and Assumption Agreement.


 


11.           ILLEGALITY,
INCREASED COST, NON-AVAILABILITY, ETC.


 


11.1         Illegality. In the
event that by reason of any change in any applicable law, regulation or
regulatory requirement or in the interpretation thereof, a Lender has a basis
to conclude that it has become unlawful for any Lender to maintain or give
effect to its obligations as contemplated by this Agreement, such Lender shall
inform the Administrative Agent and the Borrowers to that effect, whereafter
the liability of such Lender to make its Commitment available shall forthwith
cease and the Borrowers shall be required either to repay to such Lender that
portion of the Credit Facilities advanced by such Lender immediately or, if such
Lender so agrees, to repay such portion of the Credit Facilities to such Lender
on the last day of any then current Interest Period in accordance with and
subject to the provisions of Section 11.5. In any such event, but without
prejudice to the aforesaid obligations of the Borrowers to repay such portion
of the Credit Facilities, the Borrowers and the relevant Lender shall negotiate
in good faith with a view to agreeing on terms for making such portion of the
Credit Facilities available from another jurisdiction or otherwise
restructuring such portion of the Credit Facilities on a basis which is not
unlawful.


 


11.2         Increased Costs. If
any change in applicable law, regulation or regulatory requirement (including
any applicable law, regulation or regulatory requirement which relates to
capital 


 


29

















 


adequacy or liquidity controls or which affects the manner in which any
Lender allocates capital resources under this Agreement), or in the
interpretation or application thereof by any governmental or other authority,
shall:


 


(i)            subject
any Lender to any Taxes (other than Excluded Taxes) with respect to its income
from the Credit Facilities, or any part thereof, or


 


(ii)           change
the basis of taxation to any Lender of payments of principal or interest or any
other payment due or to become due pursuant to this Agreement (other than a
change in the basis effected by the jurisdiction of organization of such
Lender, the jurisdiction of the principal place of business of such Lender, the
United States of America, the State or City of New York or any governmental
subdivision or other taxing authority having jurisdiction over such Lender
(unless such jurisdiction is asserted by reason of the activities of the
Borrowers or any of the other Security Parties) or such other jurisdiction
where the Credit Facilities may be payable), or


 


(iii)          impose,
modify or deem applicable any reserve requirements or require the making of any
special deposits against or in respect of any assets or liabilities of,
deposits with or for the account of, or loans by, a Lender, or


 


(iv)          impose
on any Lender any other condition affecting the Credit Facilities or any part
thereof,


 


and the result of the foregoing is either to increase
the cost to such Lender of making available or maintaining its Commitment or
any part thereof or to reduce the amount of any payment received by such
Lender, then and, in any such case, if such increase or reduction, in the
opinion of such Lender, materially affects the interests of such Lender under
or in connection with this Agreement:


 


(i)            the
Lender shall notify the Administrative Agent and the Borrowers of the happening
of such event, and


 


(ii)           the
Borrowers agree forthwith upon demand to pay to such Lender such amount as such
Lender certifies to be necessary to compensate such Lender for such additional
cost or such reduction.


 


11.3         Nonavailability of
Funds. If the Administrative Agent shall determine that, by reason of
circumstances affecting the London Interbank Market generally, adequate and
reasonable means do not or will not exist for ascertaining the interest rate
for the Credit Facilities for any Interest Period, the Administrative Agent
shall give notice of such determination to the Borrowers. The Majority Lenders shall
then determine the interest rate and/or Interest Period to be substituted for
those which would otherwise have applied under this Agreement. If the Majority
Lenders are unable to agree upon such a substituted interest rate and/or
Interest Period within thirty (30) days 


 


30

















 


of the giving of such determination notice, the Administrative Agent
shall set an interest rate and Interest Period to take effect from the
expiration of the Interest Period in effect at the date of determination, which
rate shall be equal to the Applicable Margin plus the cost to the Lenders (as
certified by each Lender) of funding the Credit Facilities. In the event the
state of affairs referred to in this Section 11.3 shall extend beyond the
end of the Interest Period, the foregoing procedure shall continue to apply
until circumstances are such that the interest rate may be determined pursuant
to Section 6.


 


11.4         Lender’s Certificate
Conclusive. A certificate or determination notice of any Lender as to any
of the matters referred to in this Section 11 shall, absent manifest
error, be conclusive and binding on the Borrowers.


 


11.5         Compensation for
Losses. Where the Credit Facilities or any portion thereof is to be repaid
by the Borrowers pursuant to this Section 11, the Borrowers agree
simultaneously with such repayment to pay to the relevant Lender all accrued
interest to the date of actual payment on the amount repaid and all other sums
then payable by the Borrowers to the relevant Lender pursuant to this
Agreement, together with such amounts as may be certified by the relevant
Lender to be necessary to compensate such Lender for any actual loss, premium
or penalties incurred or to be incurred thereby on account of funds borrowed to
make, fund or maintain its Commitment or such portion thereof for the remainder
(if any) of the then current Interest Period or Interest Periods, if any, but
otherwise without penalty or premium.


 


12.           CURRENCY INDEMNITY


 


12.1         Currency Conversion.
If, for the purpose of obtaining or enforcing a judgment in any court in any
country, it becomes necessary to convert into any other currency (the “judgment
currency”) an amount due in Dollars under this Agreement, the Notes or any of
the Security Documents, then the conversion shall be made, in the discretion of
the Administrative Agent, at the rate of exchange prevailing either on the date
of default or on the day before the day on which the judgment is given or the
order for enforcement is made, as the case may be (the “conversion date”),
provided that the Administrative Agent shall not be entitled to recover under
this section any amount in the judgment currency which exceeds at the
conversion date the amount in Dollars due under this Agreement, the Notes, the
Guaranty and/or any of the Security Documents.


 


12.2         Change in Exchange
Rate. If there is a change in the rate of exchange prevailing between the
conversion date and the date of actual payment of the amount due, the Borrowers
shall pay such additional amounts (if any, but, in any event, not a lesser
amount) as may be necessary to ensure that the amount paid in the judgment
currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount then due under this Agreement, the Notes
and/or any of the Security Documents in Dollars; any excess over the amount due
received or collected by the Lenders shall be remitted to the Borrowers.


 


12.3         Additional Debt Due.
Any amount due from the Borrowers under this Section 12 shall be due as a
separate debt and shall not be affected by judgment being obtained for any
other sums due under or in respect of this Agreement, the Notes and/or any of
the Security Documents.


 


31

















 


12.4         Rate of Exchange. The
term “rate of exchange” in this Section 12 means the rate at which the
Administrative Agent in accordance with its normal practices is able on the
relevant date to purchase Dollars with the judgment currency and includes any
premium and costs of exchange payable in connection with such purchase.


 


13.           FEES AND EXPENSES


 


13.1         Fees. During the
period beginning on the date of the acceptance of the Offer Letter and ending
on the Final Payment Date, the Borrowers shall pay, quarterly in arrears from
the date of this Agreement, to the Administrative Agent (for the account of the
Lenders) a commitment fee which fee shall be a per annum percentage equal to
fifty one hundredths of one percent (0.50%) payable on the difference between
the maximum aggregate amount of the Credit Facilities and the average amount of
the aggregate of the outstanding Advances. The Borrowers shall also pay to the
Agents such fees as the parties have agreed pursuant to the Offer Letter.


 


13.2         Expenses. Each of
the Borrowers agrees, whether or not the transactions hereby contemplated are
consummated, on demand to pay, or reimburse the Agents for their payment of,
the reasonable expenses of the Agents and (after the occurrence and during the
continuance of an Event of Default) the Lenders incident to said transactions
(and in connection with any supplements, amendments, waivers or consents
relating thereto or incurred in connection with the enforcement or defense of
any of the Agents’ and the Lenders’ rights or remedies with respect thereto or
in the preservation of the Agents’ and the Lenders’ priorities under the
documentation executed and delivered in connection therewith), including,
without limitation, all costs and expenses of preparation, negotiation,
execution and administration of this Agreement and the documents referred to
herein (including, but not limited to, Taxes imposed on any Lender related to
those expenses), the fees and disbursements of the Agents’ and Lenders’ counsel
in connection therewith, as well as the reasonable fees and expenses of any
independent appraisers, surveyors, engineers, inspectors and other consultants
retained by the Agent in connection with this Agreement and the transactions
contemplated hereby and under the Security Documents, all costs and expenses,
if any, in connection with the enforcement of this Agreement, the Notes and the
Security Documents and stamp and other similar taxes, if any, incident to the
execution and delivery of the documents (including, without limitation, the
Notes) herein contemplated and to hold the Agents and the Lenders free and
harmless in connection with any liability arising from the nonpayment of any
such stamp or other similar taxes. Such taxes and, if any, interest and
penalties related thereto as may become payable after the date hereof shall be
paid immediately by the Borrowers to the Agents or the Lenders, as the case may
be, when liability therefor is no longer contested by such party or parties or
reimbursed immediately by the Borrowers to such party or parties after payment
thereof (if the Agents or the Lenders, at their sole discretion, chooses to
make such payment).


 


14.           APPLICABLE LAW,
JURISDICTION AND WAIVER


 


14.1         Applicable Law. This
Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York.


 


14.2         Jurisdiction. The
Borrowers hereby irrevocably submit to the jurisdiction of the courts of the
State of New York and of the United States District Court for the Southern
District of New 


 


32

















 


York in any action or proceeding brought against it by any of the
Lenders or Agents under this Agreement or under any document delivered
hereunder and hereby irrevocably agrees that valid service of summons or other
legal process on it may be effected by serving a copy of the summons and other
legal process in any such action or proceeding on the Borrowers by mailing or
delivering the same by hand to the Borrowers at the address indicated for
notices in Section 16.1. The service, as herein provided, of such summons
or other legal process in any such action or proceeding shall be deemed
personal service and accepted by the Borrowers as such, and shall be legal and
binding upon the Borrowers for all the purposes of any such action or
proceeding. Final judgment (a certified or exemplified copy of which shall be
conclusive evidence of the fact and of the amount of any indebtedness of the
Borrowers to the Lenders or the Agents) against the Borrowers in any such legal
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment. The Borrowers will advise the
Administrative Agent promptly of any change of address for the purpose of
service of process. Notwithstanding anything herein to the contrary, the Lenders
may bring any legal action or proceeding in any other appropriate jurisdiction.


 


14.3         WAIVER OF
JURY TRIAL. IT IS MUTUALLY AGREED BY AND AMONG THE BORROWERS, THE
OTHER SECURITY PARTIES, THE AGENTS AND THE LENDERS THAT EACH OF THEM HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY
PARTY HERETO AGAINST ANY OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE SECURITY
DOCUMENTS.


 


15.           THE AGENTS


 


15.1         Appointment of Agents.
Each of the Lenders irrevocably appoints and authorizes the Agents severally
each to take such action as agent on its behalf and to exercise such powers
under this Agreement, the Notes and the Security Documents as are delegated to
such Agent by the terms hereof and thereof. No Agent nor any of their
respective directors, officers, employees or agents shall be liable for any
action taken or omitted to be taken by it or them under this Agreement, the
Notes or the Security Documents or in connection therewith, except for its or
their own gross negligence or willful misconduct.


 


15.2         Collateral Agent. Each
of the Lenders irrevocably appoints the Collateral Agent as collateral agent on
its behalf with regard to (i) the security, powers, rights, titles,
benefits and interests (both present and future) constituted by and conferred
on the Lenders or any of them or for the benefit thereof under or pursuant to
this Agreement, the Notes or any of the Security Documents (including, without
limitation, the benefit of all covenants, undertakings, representations,
warranties and obligations given, made or undertaken to any Lender in the
Agreement, the Notes or any Security Document), (ii) all moneys, property and
other assets paid or transferred to or vested in any Lender or any agent of any
Lender or received or recovered by any Lender or any agent of any Lender
pursuant to, or in connection with, this Agreement, the Notes or the Security
Documents whether from any Security Party or any other person and (iii) all
money, investments, property and other assets at any time representing or
deriving from any of the foregoing, including all interest, income and other
sums at any time received or receivable 


 


33

















 


by any Lender or any agent of any Lender in respect of the same (or any
part thereof). The Collateral Agent hereby accepts such appointment.


 


15.3         Distribution of
Payments. Whenever any payment is received by the Administrative Agent from
the Borrowers or any other Security Party for the account of the Lenders, or
any of them, whether of principal or interest on the Notes, commissions, fees
under Section 13 or otherwise, it will thereafter cause to be distributed
on the same day if received before 3 p.m. New York time, or on the next
day if received thereafter, like funds relating to such payment ratably to the
Lenders according to their respective Commitments, in each case to be applied
according to the terms of this Agreement.


 


15.4         Holder of Interest in
Notes. The Agents may treat each Lender as the holder of all of the
interest of such Lender in the Notes.


 


15.5         No Duty to Examine,
Etc. The Agents shall not be under a duty to examine or pass upon the
validity, effectiveness or genuineness of any of this Agreement, the Notes, the
Security Documents or any instrument, document or communication furnished
pursuant to this Agreement or in connection therewith or in connection with the
Notes or any Security Document, and the Agents shall be entitled to assume that
the same are valid, effective and genuine, have been signed or sent by the
proper parties and are what they purport to be.


 


15.6         Agents as Lenders.
With respect to that portion of the Facilities made available by it, each Agent
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not an Agent, and the term “Lender” or “Lenders”
shall include each Agent in its capacity as a Lender. Each Agent and its
affiliates may accept deposits from, lend money to and generally engage in any
kind of business with, the Borrowers and the other Security Parties, as if it
were not an Agent.


 


15.7         Acts of the Agents.
Each Agent shall have duties and reasonable discretion, and shall act as
follows:


 


(A)          Obligations
of the Agents. the obligations of each Agent under this Agreement, under
the Notes and under the Security Documents are only those expressly set forth
herein and therein.


 


(B)           No Duty
to Investigate. no Agent shall at any time be under any duty to investigate
whether an Event of Default, or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default, has occurred or
to investigate the performance of this Agreement, the Notes or any Security
Document by any Security Party.


 


(C)           Discretion
of the Agents. each Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it by, and with respect to taking or refraining from taking any
action or actions which it may be able to take under or in respect of, this
Agreement, the Notes and the Security Documents, unless the Administrative
Agent shall have been instructed by the Majority Lenders to exercise such
rights or to take or refrain from 


 


34

















 


taking such action; provided, however, that no Agent shall be required
to take any action which exposes such Agent to personal liability or which is
contrary to this Agreement or applicable law.


 


(D)          Instructions
of Majority Lenders. each Agent shall in all cases be fully protected in
acting or refraining from acting under this Agreement, under the Notes, or
under any Security Document in accordance with the instructions of the Majority
Lenders, and any action taken, or failure to act pursuant to such instructions,
shall be binding on all of the Lenders.


 


15.8         Certain Amendments.
Neither this Agreement, the Notes nor any of the Security Documents nor any
terms hereof or thereof may be amended unless such amendment is approved by the
Borrowers and the Majority Lenders, provided that no such amendment shall,
without the written consent of each Lender affected thereby, (i) reduce
the interest rate or extend the time of a scheduled payment of principal or
interest or fees on the Facilities, or reduce the principal amount of the
Facilities or any fees hereunder, (ii) increase or decrease the Commitment
of any Lender or subject any Lender to any additional obligation (it being
understood that a waiver of any Event of Default, other than a payment default,
or any mandatory repayment of the Facilities shall not constitute a change in
the terms of any Commitment of any Lender), (iii) amend, modify or waive
any provision of this Section 15.8, (iv) amend the definition of Majority
Lenders or any other definition referred to in this Section 15.8,
(v) consent to the assignment or transfer by the Borrowers of any of their
rights and obligations under this Agreement, or (vi) release any Security
Party from any of its obligations under any Security Document except as
expressly provided in Section 2.2(k) of the Mortgages (provided that the
requirement under this subparagraph (vi) is not intended to extend to
amendments to, or temporary waivers of, obligations unless the subject matter of
such obligation is identified elsewhere in this Section 15.8); provided,
further, that approval by all Lenders shall be required for any amendment or
waivers with respect to the prepayment provisions contained in Section 5.3 of
this Agreement. All amendments approved by the Majority Lenders under this
Section 15.8 must be in writing and signed by the Borrowers, each of the
Lenders comprising the Majority Lenders and, if applicable, each Lender
affected thereby and any such amendment shall be binding on all the Lenders;
provided, however, that any amendments or waivers with respect to the
prepayment provisions contained in Section 5.3 of this Agreement must be in
writing and signed by the Borrowers and all of the Lenders.


 


15.9         Assumption re Event of
Default. Except as otherwise provided in Section 15.15, the
Administrative Agent shall be entitled to assume that no Event of Default, or
event which with the giving of notice or lapse of time, or both, would
constitute an Event of Default, has occurred and is continuing, unless the
Administrative Agent has been notified by any Security Party of such fact, or
has been notified by a Lender that such Lender considers that an Event of
Default or such an event which with the giving of notice or lapse of time, or
both, would constitute an Event of Default (specifying in detail the nature
thereof) has occurred and is continuing. In the event that the Administrative
Agent shall have been notified, in the manner set forth in the preceding
sentence, by any Security Party or any Lender of any Event of Default or of an
event which with the giving of notice or lapse of time, or both, would
constitute an Event of Default, the Administrative Agent shall notify the
Lenders and shall take action and assert such rights under 


 


35

















 


this Agreement, under the Notes and under Security Documents as the
Majority Lenders shall request in writing.


 


15.10       Limitations of Liability.
Except as otherwise provided in Section 15.1, neither any Agent nor any of the
Lenders shall be under any liability or responsibility whatsoever:


 


(A)          to any
Security Party or any other person or entity as a consequence of any failure or
delay in performance by, or any breach by, any other Lenders or any other
person of any of its or their obligations under this Agreement or under any
Security Document;


 


(B)           to any
Lender or Lenders as a consequence of any failure or delay in performance by,
or any breach by, any Security Party of any of its respective obligations under
this Agreement, under the Notes or under the Security Documents; or


 


(C)           to any
Lender or Lenders for any statements, representations or warranties contained
in this Agreement, in any Security Document or in any document or instrument
delivered in connection with the transaction hereby contemplated; or for the
validity, effectiveness, enforceability or sufficiency of this Agreement, the
Notes, any Security Document or any document or instrument delivered in
connection with the transactions hereby contemplated.


 


15.11       Indemnification of the
Agents. The Lenders agree to indemnify each Agent (to the extent not
reimbursed by the Security Parties or any thereof), pro rata according to the
respective amounts of their Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including legal
fees and expenses incurred in investigating claims and defending itself against
such liabilities) which may be imposed on, incurred by or asserted against,
such Agent in any way relating to or arising out of this Agreement, the Notes
or any Security Document, any action taken or omitted by such Agent thereunder
or the preparation, administration, amendment or enforcement of, or waiver of
any provision of, this Agreement, the Notes or any Security Document, except
that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent’s gross negligence or
willful misconduct.


 


15.12       Consultation with
Counsel. Each of the Agents may consult with legal counsel reasonably
selected by such Agent and shall not be liable for any action taken, permitted
or omitted by it in good faith in accordance with the advice or opinion of such
counsel.


 


15.13       Resignation. Any
Agent may resign at any time by giving thirty (30) days’ written notice thereof
to the other Agents, the Lenders and the Borrower. Upon any such resignation,
the Lenders shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Agent’s giving notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank or trust company of recognized standing. Any
resignation by an Agent pursuant to this Section 15.13 shall be effective only
upon the appointment of a successor Agent. The appointment of any successor
Agent shall be 


 


36

















 


subject to the prior written consent of the Borrower, such consent not
to be unreasonably withheld. After any retiring Agent’s resignation as Agent
hereunder, the provisions of this Section 15 shall continue in effect for
its benefit with respect to any actions taken or omitted by it while acting as
Agent.


 


15.14       Representations of
Lenders. Each Lender represents and warrants to each other Lender and each
Agent that:


 


(A)          in making
its decision to enter into this Agreement and to make its Commitment available
hereunder, it has independently taken whatever steps it considers necessary to
evaluate the financial condition and affairs of the Security Parties, that it
has made an independent credit judgment and that it has not relied upon any
statement, representation or warranty by any other Lender or any Agent; and


 


(B)           so long as
any portion of its Commitment remains outstanding, it will continue to make its
own independent evaluation of the financial condition and affairs of the
Security Parties.


 


15.15       Notification of Event of
Default. The Administrative Agent hereby undertakes to promptly notify the
Lenders, and the Lenders hereby promptly undertake to notify the Administrative
Agent and the other Lenders, of the existence of any Event of Default, which
shall have occurred and be continuing, of which the Administrative Agent or
Lender has actual knowledge.


 


15.16       No Agency or Trusteeship
if DNB NOR only Lender. If at any other time DNB NOR Bank ASA, New York
branch, is the only Lender, all references to the terms “Administrative Agent”
and “Collateral Agent” shall be deemed to be references to DNB NOR Bank ASA,
New York branch as Lender and not as Administrative Agent or Collateral Agent.


 


16.           NOTICES AND DEMANDS


 


16.1         Notices. All
notices, requests, demands and other communications to any party hereunder
shall be in writing (including prepaid overnight courier, facsimile transmission
or similar writing) and shall be given to the Borrowers and the Agents at the
address or facsimile number set forth in the signature pages to this Agreement
and to the Lenders at their address and facsimile numbers set forth in
Schedule 1 or at such other address or facsimile numbers as such party may
hereafter specify for the purpose by notice to each other party hereto. Each
such notice, request or other communication shall be deemed to have been
received (provided that it is received prior to 2 p.m. New York time), (i) if
given by facsimile, on the date of dispatch thereof (provided that if the date
of dispatch is not a Business Day in the locality of the party to whom such
notice or communication is sent it shall be deemed to have been received on the
next following Business Day in such locality), and (ii) if given by mail,
prepaid overnight courier or any other means, when received at the address
specified in this Section or when delivery at such address is refused.


 


37

















 


17.           MISCELLANEOUS


 


17.1         Time of Essence. Time
is of the essence with respect to this Agreement but no failure or delay on the
part of any Lender or the Agents to exercise any power or right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise by any Lender or the Agents of any power or right hereunder preclude
any other or further exercise thereof or the exercise of any other power or
right. The remedies provided herein are cumulative and are not exclusive of any
remedies provided by law.


 


17.2         Unenforceable, etc.,
Provisions–Effect. In case any one or more of the provisions contained in
this Agreement, the Notes or in any Security Document would, if given effect,
be invalid, illegal or unenforceable in any respect under any law applicable in
any relevant jurisdiction, said provision shall not be enforceable against the
relevant Security Party, but the validity, legality and enforceability of the
remaining provisions herein or therein contained shall not in any way be
affected or impaired thereby.


 


17.3         References. References
herein to Sections, Exhibits and Schedules are to be construed as references to
sections of, exhibits to, and schedules to, this Agreement, unless the context
otherwise requires.


 


17.4         Further Assurances.
The Borrowers agree that if this Agreement or any Security Document shall, in
the reasonable opinion of the Lenders, at any time be deemed by the Agents or
the Lenders for any reason insufficient in whole or in part to carry out the
true intent and spirit hereof or thereof, it will execute or cause to be
executed such other and further assurances and documents as in the opinion of
the Lenders may be required in order to more effectively accomplish the
purposes of this Agreement, the Notes or any Security Document.


 


17.5         Prior Agreements,
Merger. Any and all prior understandings and agreements heretofore entered
into between the Security Parties on the one part, and the Agents or the
Lenders, on the other part, whether written or oral, other than the Fee Letter,
are superseded by and merged into this Agreement and the other agreements (the
forms of which are exhibited hereto) to be executed and delivered in connection
herewith to which the Security Parties, the Agents and/or the Lenders are
parties, which alone fully and completely express the agreements between the
Security Parties, the Agents and the Lenders.


 


17.6         Entire Agreement;
Amendments. This Agreement constitutes the entire agreement of the parties
hereto. Subject to Section 15.8, any provision of this Agreement, the Notes or
any Security Document may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrowers, the Agents and the
Majority Lenders. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute one and the same instrument.


 


17.7         Indemnification. The
Borrowers and, by its execution and delivery of the Consent and Agreement set
forth below, each of the other Security Parties jointly and severally agree to
indemnify each Lender and the Agents, their respective successors and assigns,
and their respective officers, directors, employees, representatives and agents
(each an “Indemnitee”) from, and hold each of them harmless against, any and
all losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of
counsel for such 


 


38

















 


Indemnitee in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee shall
be designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the obligations of the
Borrowers hereunder) be imposed on, asserted against or incurred by, any
Indemnitee as a result of, or arising out of or in any way related to or by
reason of, (a) any violation by any Security Party of any applicable
Environmental Law, (b) any Environmental Action arising out of the
management, use, control, ownership or operation of property or assets by any
Security Party (or, after foreclosure, by any Lender or the Agents or any of
their respective successors or assigns), (c) the breach of any
representation, warranty or covenant set forth in Sections 2.1 (p) or
9.1(l), (d) the Credit Facilities (including the use of the proceeds of
the Credit Facilities and any claim made for any brokerage commission, fee or
compensation from any Person), or (e) the execution, delivery, performance
or non-performance by a Security Party of this Agreement, the Notes, any Security
Document, or any of the documents referred to herein or contemplated hereby
(whether or not the Indemnitee is a party thereto). If and to the extent that
the obligations of the Security Parties under this Section are unenforceable
for any reason, the Borrowers and, by its execution and delivery of the Consent
and Agreement set forth below, each of the other Security Parties jointly and
severally agree to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under applicable law. The
obligations of the Security Parties under this Section 17.7 shall survive
the termination of this Agreement and the repayment to the Lenders of all
amounts owing thereto under or in connection herewith.


 


17.8         Headings. In this
Agreement, section headings are inserted for convenience of reference only and
shall not be taken into account in the interpretation of this Agreement.


 


17.9         WAIVER OF IMMUNITY.
TO THE EXTENT THAT ANY SECURITY PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM SUIT, JURISDICTION OF ANY COURT OR ANY LEGAL PROCESS (WHETHER THROUGH
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION OF A
JUDGMENT, OR FROM ANY OTHER LEGAL PROCESS OR REMEDY) WITH RESPECT TO ITSELF OR
ITS PROPERTY, SUCH SECURITY PARTY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS LOAN AGREEMENT AND THE OTHER SECURITY
DOCUMENTS.


 


39

















 


IN
WITNESS whereof, the parties hereto have caused this Agreement to be duly
executed by their duly authorized representatives as of the day and year first
above written.


 


 


	
   

  	
  STOLTHAVEN
  HOUSTON INC., Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John
  Greenwood

  
	
   

  	
   

  	
  Name:

  	
  John
  Greenwood

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
  c/o
  Stolt-Nielsen Inc.

  
	
   

  	
   

  	
  8
  Sound Shore Drive

  
	
   

  	
   

  	
  P.O.
  Box 2300

  
	
   

  	
   

  	
  Greenwich,
  CT 06836

  
	
   

  	
   

  	
  Attn:
  Howard J. Merkel

  
	
   

  	
   

  	
  Facsimile:
  (203) 625-3957

  
	
   

  	
   

  
	
   

  	
  STOLTHAVEN
  NEW ORLEANS LLC, Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John
  Greenwood

  
	
   

  	
   

  	
  Name:

  	
  John
  Greenwood

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
  c/o
  Stolt-Nielsen Inc.

  
	
   

  	
   

  	
  8
  Sound Shore Drive

  
	
   

  	
   

  	
  P.O.
  Box 2300

  
	
   

  	
   

  	
  Greenwich,
  CT 06836

  
	
   

  	
   

  	
  Attn:
  Howard J. Merkel

  
	
   

  	
   

  	
  Facsimile:
  (203) 625-3957

  



 

















 


	
   

  	
  The
  Lenders

  
	
   

  	
   

  
	
   

  	
  DNB
  NOR BANK ASA, NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alfred
  C. Jones

  
	
   

  	
   

  	
  Name:

  	
  Alfred
  C. Jones, III

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanjiv
  Nayar

  
	
   

  	
   

  	
  Name:

  	
  Sanjiv
  Nayar

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG IN HAMBURG

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence
  Rutkowski

  
	
   

  	
   

  	
  Name:

  	
  Lawrence
  Rutkowski

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew
  Cooley

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  Cooley

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KFW

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence
  Rutkowski

  
	
   

  	
   

  	
  Name:

  	
  Lawrence
  Rutkowski

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew
  Cooley

  
	
   

  	
   

  	
  Name:

  	
  Matthew
  Cooley

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  



 

















 


	
   

  	
  DNB
  NOR BANK ASA, NEW YORK BRANCH,

  
	
   

  	
  as
  Administrative Agent and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alfred C. Jones

  
	
   

  	
   

  	
  Name:

  	
  Alfred
  C. Jones, III

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanjiv
  Nayar

  
	
   

  	
   

  	
  Name:

  	
  Sanjiv
  Nayar

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
  DnB
  NOR Bank ASA, New York Branch

  
	
   

  	
   

  	
  200
  Park Avenue, 31st Floor

  
	
   

  	
   

  	
  New
  York, New York 10166

  
	
   

  	
   

  	
  Attn:
  Sanjiv Nayar

  
	
   

  	
   

  	
  Fax:
  (212) 681-3900

  



 

















 


CONSENT
AND AGREEMENT


 


Each of
the undersigned, referred to in the foregoing Agreement as the “Guarantors”,
hereby consents and agrees to said Agreement and to the documents contemplated
thereby and to the provisions contained therein relating to conditions to be
fulfilled and obligations to be performed by the undersigned pursuant to or in
connection with said Agreement and agrees particularly to be bound by the
representations, warranties and covenants relating to the undersigned contained
in Sections 2 and 9 of said Agreement to the same extent as if the undersigned
were a party to said Agreement.


 


	
   

  	
  STOLT-NIELSEN S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Greenwood

  	
   

  
	
   

  	
  Name:

  	
  John Greenwood

  
	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
  c/o Stolt-Nielsen Inc.

  
	
   

  	
  8 Sound Shore Drive

  
	
   

  	
  Greenwich, CT 06836

  
	
   

  	
  Attn: Howard J. Merkel

  
	
   

  	
  Fax: (203) 661-7695

  
	
   

  	
   

  
	
   

  	
  STOLT-NIELSON TRANSPORTATION GROUP LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Greenwood

  	
   

  
	
   

  	
  Name:

  	
  John Greenwood

  
	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
  Address for Notices:

  
	
   

  	
  c/o Stolt-Nielsen Inc.

  
	
   

  	
  8 Sound Shore Drive

  
	
   

  	
  Greenwich, CT 06836

  
	
   

  	
  Attn: Howard J. Merkel

  
	
   

  	
  Fax: (203) 661-7695

  
						



 



















 


SCHEDULE
1 


 


PERCENTAGES
AND MAXIMUM DOLLAR COMMITMENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Maximum Dollar

  	
   

  
	
  Name of Lender

  	
   

  	
  Percentage

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DNB Nor Bank ASA, New York
  Branch

  	
   

  	
  33.333

  	
  %

  	
  USD$

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  Address for Notices:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DnB Nor Bank ASA, New York
  Branch

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  200 Park Avenue

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  31st Floor

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  New York, NY 10166

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attn: Sanjiv Nayar

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Fax: (212) 681-3900

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  Payment Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank AG in
  Hamburg

  	
   

  	
  33.333

  	
  %

  	
  USD$

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (i) 

  	
  Address for Notices:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Brandstwiete 1

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  20457 Hamburg

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Germany

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attn: Carola Roth, Vice
  President

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fax: +49 (0)40 3701-4649

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii) 

  	
  Payment Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KfW

  	
   

  	
  33.333

  	
  %

  	
  USD$

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)  Address for Notices:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Palmengartenstr 5-9

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  60325 Frankfurt a. M.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Germany

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attn: Christoph Gruen

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fax: + 49 69 7431-4790

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (ii) 

  	
  Payment Instructions:

  	
   

  	
   

  	
   

  	
   

  	
   

  
														



 

















 


SCHEDULE 2 


 


LITIGATION
AND ENVIRONMENTAL MATTERS


 

















 


LEGAL
PROCEEDINGS


 


Stolthaven Houston Inc.


 


Crompton Corporation v.
Stolthaven Houston Inc. et al, District Court of Harris County, Texas. This litigation involves the
contamination of two chemicals at the Stolthaven Houston facility. On January 23,
2002 a railcar containing 79.990 MT of Flo-Mo 1407 was mistakenly discharged
into Shore Tank No E12-21. At the time, such tank contained 596.100 MT of Flo-Mo
TD-201. Both cargoes were owned by Witco, a division of Crompton Corporation.
Crompton claims the contamination completely destroyed both cargoes. Crompton
sold the contaminated product and has sued Stolthaven Houston Inc. for the
difference in value, approximately $744,000. The parties are attempting to
negotiate a settlement before incurring significant legal costs. If reasonable
settlement cannot be achieved, the Company intends to vigorously contest the
claim.


 


Stolthaven New Orleans
L.L.C.


 


Shelly Alphonso-Ferro v.
Stolthaven New Orleans L.L.C., United States District Court (Eastern District
of Louisiana).
Plaintiff asserts claims under the federal Family and Medical Leave Act (FMLA)
and the Employee Retirement Income Security Act of 1974 (ERISA). Plaintiff claims
that her termination by the Company on July 18, 2003, for misappropriation of
Company funds and falsifying documents, was in violation of FMLA as she asserts
she was on “protected leave” at the time She also claims that her termination
violated ERISA on the grounds that the Company interfered with her eligibility
to seek long-term disability benefits by terminating her before the 180 day
waiting period. The Company terminated her when her absence caused the
discovery of a series of unpaid debts that she had charged to the Company. This
litigation is in discovery and the Company is vigorously defending the matter.


 


Quick Recovery Coating
Systems, Inc. v. Stolthaven New Orleans L.L.C., Stolt Offshore Inc. and
Stolt-Nielsen Transportation Group Ltd., Civil District Court, Parish of
Plaquemines, Louisiana.
This action, consolidated with two related actions involving Quick Recovery’s
subcontractors and lenders, relates to services provided by plaintiff in
connection with the construction of storage tanks at Stolthaven New Orleans.
Plaintiff seeks damage in the amount of $407,109.86 plus unstated damages for
breach of contract and for violation of unfair trade practices and consumer
protection laws as a result of delays incurred in connection with the
construction of storage tanks at Stolthaven New Orleans. The action is in the early
stages of discovery and it is therefore premature to predict an outcome.


 


King Fabrication, LLC v.
Stolthaven New Orleans L.L.C. and Stolt-Nielsen Transporation Group Inc., Civil
District Court, Parish of Plaquemines, Louisiana. Plaintiff seeks damages in the amount of
$570,422.45 as a result of delays and revisions to design drawings incurred in
connection with the construction of the Stolthaven New Orleans faciliy. The
Company has asserted a counterclaim seeking damages in excess of that being
claimed in the principal demand. The case is in the early stages of discovery
and it is therefore premature to predict an outcome. The parties are presently
in mediation.


 

















 


Arsenio Arias v. Stolthaven
New Orleans L.L.C., ABC Insurance Company, Stolt-Nielsen Transportation Group
Inc. (aka Stolt-Nielsen S.A.), DEF Insurance Company, Certified Coating Inc.,
GHI Insurance Company, Kenneth R. Hebert, Per Voie individually and as Employer
of and Kirk Skiles individually, Civil District Court, Parish of Orleans, Louisiana. Plaintiff has sued for damages allegedly
sustained as a result of an exposure to acrylonitrile while working for Certified
Coating at the Stolthaven New Orleans facility. Arias’ workers’ compensation
carrier has also intervened in this suit. Initial investigation reveals that
there was an accidental, infinitesimal and inconsequential leak of
acrylonitrile from Tank B50-0, which was discovered by Kirk Skiles and
immediately remedied. Various procedural motions have been filed. The Company
and the individual defendants are vigorously contesting liability in this
matter. The case is in the early stages of discovery and it is therefore
premature to predict an outcome. The matter is insured, with a $250,000
deductible.


 


International-Matex Tank
Terminals LLC and Ventura Foods LLC v. Stolthaven New Orleans L.L.C.,
Stolt-Nielsen Transportation Group Inc. and Stolt Offshore Inc., Civil District
Court for Parish of Orleans, Louisiana. Plaintiffs allege illegal monopoly power over the business of
transporting and storing tropical oils from Southeast Asia to Mississippi
River, violating the State of Louisiana’s antitrust laws and Unfair Trade
Practices Act (LUPTA). Stolthaven moved for partial summary judgment seeking
dismissal with prejudice of plaintiffs’ claims against it. By decision dated June
30, 2004, all of such claims were dismissed with the exception of the claim
under LUPTA. The Company is (and has) vigorously contesting all of IMTT’s and
Ventura’s allegations and claims and is seeking dismissal of the remaining
claim.


 


Louisiana Department of
Environmental Quality (“LDEQ”). The LDEQ issued Consolidated Compliance Orders and Notices of
Potential Penalty to Stolthaven New Orleans L.L.C. on February 10, 2003 and
July 3, 2003 alleging various violations of the facility’s air and water
permits (the “Compliance Orders”). The deviations upon which the Compliance
Orders are based were discovered by Stolthaven New Orleans L.L.C. and self
reported to LEDQ. All violations and deviations have been tentatively resolved
in settlement wherein Stolthaven New Orleans L. L C. has agreed to pay
$113,775.50 to resolve same, while neither admitting or denying the
allegations.


 


Stolt Nielsen S.A. and
Stolt-Nielsen Transportation Group


 


Investigations by the U.S.
Department of Justice and European Commission


 


In 2002, we became aware of
information that caused us to undertake an internal investigation regarding
potential improper collusive behavior in our parcel tanker and intra-Europe
inland barge operations. As a consequence of the internal investigation, we
voluntarily reported certain conduct to the Antitrust Division of the DOJ and
the Competition Directorate of the EC.


 


As a result of our voluntary
report to the DOJ, we entered into an Amnesty Agreement with the Antitrust Division,
which provided immunity to us subject to the terms and conditions of the
Amnesty Agreement. On February 25, 2003, we announced that we had been
conditionally accepted into the DOJ’s Corporate Leniency Program with respect
to possible collusion in the parcel tanker industry. Pursuant to such program
and provided the program’s stated terms and conditions were


 

















 


met, including continued
cooperation, our directors, officers and employees were promised amnesty from
criminal antitrust prosecution and fines in the U.S. for anticompetitive
conduct in the parcel tanker business.


 


At the same time, we also
announced that the EC had admitted us into its Immunity Program with respect to
deep-sea parcel tanker and intra-Europe inland barge operations. Acceptance
into the EC program affords us immunity from EC fines with respect to
anticompetitive behavior, subject to our fulfillment the conditions of the
program, including continued cooperation. There can be no assurance that in the
future national authorities in Europe or elsewhere will not assert jurisdiction
over the alleged conduct and/or seek to take action against us.


 


Subsequently, the Antitrust
Division’s staff informed us that it was suspending our obligation to cooperate
because the Antitrust Division was considering whether or not to remove us from
the DOJ’s Corporate Leniency Program. Thereafter, in March 2004, the Antitrust
Division voided the Amnesty Agreement and revoked our conditional acceptance
into the DOJ Corporate Leniency Program. We intend to vigorously challenge the
Antitrust Division’s decision. If our challenge to the Antitrust Division’s
decision is not successful, it is possible that we or our directors officers or
employees could be subject to criminal prosecution and, if found guilty, substantial
fines and penalties. Even if our challenge were successful, our continuing
immunity and amnesty under the Antitrust Division’s Corporate Leniency Program
would depend on the DOJ’s satisfaction that going forward we and our directors,
officers and employees were meeting their obligations to cooperate and
otherwise comply with the conditions of the Corporate Leniency Program. It is
possible that the Antitrust Division could, once again, determine that we or
such directors, officers or employees did not or have not fully complied with
those terms and conditions. If this were to happen, SNTG or such directors or
employees could, once again, be partly or fully removed from the Corporate
Leniency Program, subject to criminal prosecution and, if found guilty,
substantial fines and penalties.


 


We remain in the EC’s
Immunity Program. Our directors, officers, and employees continuing immunity
and amnesty under the EC’s Immunity Program depends on the EC’s satisfaction
that going forward we and our directors and employees are meeting our
obligations to cooperate and otherwise comply with the conditions of the
Immunity Program. It is possible that the EC could determine that we or such
directors or employees did not or have not fully complied with those terms and
conditions. If this were to happen, we or such directors or employees could be
partly or fully removed from the Immunity Program, subject to criminal
prosecution and, if found guilty, substantial fines and penalties.


 


The DOJ has taken the
position that the Executive Vice President and Managing Director of SNTG Tanker
Trading, Richard Wingfield, who we have suspended from his employment with
SNTG, has not complied with the cooperation requirements of the conditional
immunity. In June 2003, the DOJ arrested Mr. Wingfield and filed a criminal
complaint against him. To date, Mr. Wingfield has not been indicted.


 


We are challenging the DOJ’s
withdrawal of conditional immunity and remain in the EC’s Immunity Program.
Because of this and the inherent difficulty of predicting the outcome of an


 

















 


investigation and the
challenge to the DOJ’s determination, we have made no provision for any fines
or other penalties related to the DOJ or EC investigations in our Consolidated
Financial Statements.


 


We have also received a
subpoena from the U. S. Department of Justice seeking documents with respect to
our tank container business.


 


Investigations by Korea
Fair Trade Commission and Canada Competition Bureau


 


The KFTC and the CCB have
each notified SNTG that they are conducting investigations of the parcel tanker
shipping industry and SNTG. SNTG has informed the KFTC and the CCB that it is
committed to cooperating fully with the investigations.


 


Because of the early stages
of these investigations and the inherent unpredictability of the outcome of such
proceedings, we are unable to determine whether or not an unfavorable outcome
is probable and have made no provision for any fines or other penalties related
to the KFTC or CCB investigations in our Consolidated Financial Statements.


 


Employment Litigation


 


In an action filed in the
Superior Court in Connecticut, SNTG and its former chairman have been sued by a
former in house legal counsel, Paul E. O’Brien, who resigned in early 2002


 


In the Paul E. O’Brien
action, the plaintiff seeks damages for constructive discharge and alleges that
SNTG was engaging in ongoing “illegal antitrust activities that violated U S.
and international law against price fixing and other illegal collusive conduct.”
The O’Brien action also seeks an order allowing the plaintiff to disclose
client confidences regarding these allegations and protecting the plaintiff from
civil or disciplinary proceedings after such revelation. The complaint, as
amended, does not specify the range of damages sought other than to state they
are in excess of the $15,000 jurisdictional minimum. We have moved for summary
judgment on the entire complaint. The motion is fully briefed and under
consideration by the Court.


 


We intend to vigorously
defend ourselves against this lawsuit and, in accordance with SFAS No. 5, “Accounting
for Contingencies,” we have not made any provision for any liability related to
the action in the accompanying Consolidated Financial Statements.


 


Antitrust Civil Class
Action Litigations


 


To date we are aware of
twelve putative private class actions filed against SNSA and SNTG for alleged
violations of antitrust laws. The actions set forth almost identical claims of
collusion and bid rigging that track information in media reports regarding the
DOJ and EC investigations. The suits seek treble damages in unspecified amounts
and allege violations of the Sherman Antitrust Act and various state antitrust
and unfair trade practices acts. The actions typically name as defendants SNSA
and SNTG, along with several of SNTG’s competitors, Odfjell, Jo Tankers and
Tokyo Marine. The actions are as follows:


 

















 


l.                                          JLM Industries, Inc., JLM International, Inc.,
JLM Industries (Europe) BV, JLM Europe BV, and Tolson Holland, individually and
on behalf of all other similarly situated v. Stolt-Nielsen SA, Stolt-Nielsen
Transportation Group Ltd., Odfjell ASA, Odfjell USA Inc., Jo Tankers BV, Jo
Tankers, Inc., and Tokyo Marine Co. LTD., 3:03 CV 348 (DJS) (D. Conn.) (“JLM”);


 


2.                                       Nizhnekamskneftekhim USA, Inc., on behalf of
itself and all others similarly situated v. Stolt-Nielsen S.A.,
Stolt-Nielsen Transportation Group Ltd., Odfjell ASA, Odfjell USA Inc. (Houston,) Jo Tankers BV, Jo Tankers USA
Inc., and Tokyo Marine Co., H-03-1202 (S.D.Tex.)(“Nizh”);


 


3.                                       Fleurchem, Inc ., on behalf of itself and all others
similarly situated v. Stolt-Nielsen S.A., Stolt-Nielsen Transportation Group
Ltd., Odfjell ASA, Odfjell USA Inc., Jo Tankers BV, Jo Tankers USA, Inc., and
Tokyo Marine Co., H-03-3385 (S.D. Tex.) (“Fleurchem”);


 


4.                                       AnimalFeeds International Corp., Inversions Pesqueras S.A.,
Central Pacific Protein Corp, and Atlantic Shippers of Texas, Inc.,
individually and on behalf of all other similarly situated v. Stolt-Nielsen
S.A.; Stolt-Nielsen Transportation Group Ltd.; Odfjell ASA; Odfjell USA Inc.; Jo
Tankers BV; Jo Tankers USA, Inc.; and Tokyo Marine Co., 2:03-CV-5002 (E.D. Pa.);


 


5.                                       Allchem Industries Industrial Chemicals
Group, Inc., individually and on behalf of all others similarly situated, v.
Stolt-Nielsen S.A.; Stolt-Nielsen Transportation Group Ltd.; Odfjell ASA;
Odfjell USA Inc.; Jo Tankers BV; .Jo Tankers USA, Inc.; and Tokyo Marine Co.,
2:03-CV-3476 (E.D. Pa.) (“Allchem”);


 


6.                                       Basic Chemical Solutions LLC, individually
and on behalf of all others similarly situated, v. Stolt-Nielsen S.A.; Stolt-Nielsen
Transportation Group Ltd.; Odfjell ASA; Odfjell USA Inc.; Jo Tankers BV; Jo
Tankers USA, Inc.; and Tokyo Marine Co., 2:03-CV-4080 (E.D. Pa.);


 


7.                                       GFI Chemicals, LP; and GFI Sweden AB,
individually and on behalf of all others similarly situated, v. Stolt-Nielsen
S.A.; Stolt-Nielsen Transportation Group Ltd.; Odfjell ASA; Odfjell USA
Inc.; Jo Tankers BV; .Jo Tankers USA, Inc.; and Tokyo Marine Co., 2:03-CV-4079
(E.D. Pa.);


 


8.                                       Illovo Sugar Limited, individually and on
behalf of all others similarly situated, individually and on behalf of all
others similarly situated, v. Stolt-Nielsen S.A.; Stolt-Nielsen Transportation
Group Ltd.; Odfjell ASA; Odfjell USA Inc.; Jo Tankers BV; Jo Tankers USA, Inc.;
and Tokyo Marine Co., 3:03-CV-1200 (D. Conn..) (“Illovo”);


 


9.                                       Scott Sutton, on behalf of himself and all
others similarly situated in the State of Tennessee v. Stolt-Nielsen S.A.,
Stolt-Nielsen Transportation Group Ltd., Odfjell ASA, and Odfjell Seachem AS,
Odfjell USA Inc., Jo Tankers BV, Jo Tankers USA Inc.; and Tokyo Marine Co. Ltd,
No. 28,713-II (Cir. Ct. Cocke County, Tenn.) (“Sutton”);


 

















 


10.                                 KP Chemical Corporation, on behalf of itself
and all others similarly situated, v. Jo Tankers AS, Jo Tankers NV, Jo Tankers
Asia Pte, Ltd., Jo Tankers Japan, Stolt-Nielsen Transportation Group Ltd.,
Stolt Parcel Tankers, Inc., Stolt-Nielsen Netherlands BV, Stolthaven Terminals,
Inc., Anthony Radcliffe Steamship Company, Ltd., Copenhagen Tankers, Inc.,
Parcel Tankers de Columbian y Cia Ltda., Tokyo Marine Co., Ltd. and Ilno
Kaiun Kaisha, Ltd., 3:04-cv-00249-RNC (D. Conn.) (“KP Chemical”);


 


11.                                 Tulstar Products, Inc. individually and on behalf of all others similarly situated, v. Stolt-Nielsen
SA, Stolt-Nielsen Transportation Group Ltd., Odfjell ASA, Odfjell USA, Inc., Jo
Tankers BV, Jo Tankers USA, Inc., and Tokyo Marine Co., Ltd., 3:04-cv-00318-AWT
(D. Conn.) (“Tulstar”); and


 


12.                                 Karen Brock, on behalf of herself and all
others similarly situated, v. Stolt-Nielsen SA, Stolt Nielsen Transportation
Group Ltd., Odfjell ASA, Odfjell USA, Inc., Jo Tankers BV, Jo Tankers USA,
Inc., Tokyo Marine Co., Ltd and Does 1 through 100 inclusive, No. CGC 04429758
(Superior Court of California, County of San Francisco) (“Brock”).


 


In nine of these actions,
the customers claim they paid higher prices under the contracts they had with
the defendants as a result of defendants’ alleged collusive conduct. The
remaining three actions, Fleurchem, Sutton and Brock, are on behalf of indirect
purchasers who claim that such alleged collusion resulted in higher prices
being passed on to them. We have removed the Brock California state court
action to federal court to consolidate it with the other federal actions. We
have not been served in the KP Chemical or Tulstar actions.


 


In the Allchem action listed
above, the plaintiff recently filed a notice of voluntary dismissal.
Additionally, we have settled with one of the named plaintiffs, Illovo Sugar,
without material financial impact.


 


In July 2003, we moved for
the Judicial Panel on Multidistrict Litigation (“JPML”) to consolidate all of
the then-pending litigation into a single multidistrict litigation (“MDL”)
court for pretrial proceedings. None of the plaintiffs opposed this motion and
the JPML consolidated the earliest filed cases into a single MDL proceeding
before Judge Covello in the U.S. District Court for the District of
Connecticut. Motions to consolidate the remainder of the cases (except for the
recently filed KP Chemical and Tulstar actions and Sutton State Court action)
as “tag-a-long” actions in that same Connecticut MDL court have been filed
without opposition. Other than a case management conference, no proceedings
have begun in the MDL action as yet due to the stay described below.


 


SNTG’s contracts with its
customers contain arbitration clauses. Accordingly, prior to the JPML
consolidation, in two of the earliest filed class actions (Nizh and JLM) we
filed motions to compel arbitration. In the JLM action SNTG’s motion to compel
arbitration was denied by the U.S. District Court for the District of
Connecticut. All proceedings in the district court were stayed pending the
appeal to the United States Court of Appeals for the Second Circuit. In the
meanwhile, the JLM action has been consolidated before the MDL court, which has
continued the stay and applied it to all the actions before the MDL Court. The
Second Circuit heard oral argument on


 

















 


February 3, 2004 and the
parties await the Court’s ruling on the arbitration issues. In the Nizh action
in the U.S. District Court for the Southern District of Texas, the motion to
compel arbitration was granted. Subsequently, in December 2003, Nizh served on
the named defendants a demand for arbitration in New York. The MDL court has
stayed the Nizh arbitration along with the other actions pending a ruling by
the Second Circuit in the JLM matter regarding the arbitration issues.


 


The proceedings described
above are at an early stage. The claims made appear to track media reports
regarding the DOJ and EC investigations and are not based on any factual
discovery. Consequently, and because of the inherent uncertainty involved in
evaluating potential litigation outcomes, we are not able to determine whether
or not a negative outcome in any of these actions is probable or a reasonable range
for any such outcome and we have not made any provision for any of these claims
in our Consolidated Financial Statements.


 


Private Civil Antitrust
Actions By Direct Opt-Out Plaintiffs


 


On November 7, 2003, The Dow
Chemical Company filed antitrust claims against us in the Federal District
Court for the District of Connecticut. The claims track the allegations in the
putative class actions described above. The claims are presented in two
complaints, which reflect that for part of the period at issue Dow had not then
merged with Union Carbide Corporation. The actions are captioned as follows:


 


1.                                       The Dow Chemical Company v. Stolt-Nielsen
Transportation Group Ltd., Stolt-Nielsen, S.A., Odfjell ASA, Odfjell Seachem
AS, Odfjell USA, Inc., Jo Tankers BV, Jo Tankers, Inc., and Tokyo Marine Co.,
LTD., 3:03 CV 01920 (GLG) (D. Conn);


 


2.                                       Union Carbide Corporation v. Stolt-Nielsen
Transportation Group Ltd., Stolt-Nielsen, S.A., Odfjell ASA, Odfjell Seachem
AS, Odfjell USA, Inc., Jo Tankers BV, Jo Tankers, Inc., and Tokyo Marine Co.,
LTD., 3:03 CV 01919 (SRU) (D. Conn.)


 


On June 7, 2004, Huntsman
Petrochemical Corporation filed antitrust claims against SNSA and SNTG in the
Federal District Court for the District of Connecticut. The claims generally
track the allegations in the putative class actions described above. This
action is captioned as follows:


 


1.                                       Huntsman Petrochemical Corporation, Huntsman
International Trading Corporation, Huntsman Chemical Company Australia Pty
Limited and Huntsman Petrochemicals (UK) Ltd. v. Stolt-Nielsen S.A,
Stolt-Nielsen Transportation Group Ltd., and Tokyo Marine Co., Ltd.


 


The Dow and Union Carbide
actions have been consolidated into the JPML proceedings. All pretrial
proceedings in these actions would be handled by the same court that addresses
the pretrial proceedings in the consolidated putative class actions. The
Huntsman action has not yet been consolidated into the JPML proceedings
although we have been informed by the plaintiff that it intends to consolidate
this action. SNTG’s contracts with Dow, Union Carbide and Huntsman
Petrochemical Corporation contained arbitration clauses. Like the other actions
before the MDL court, these actions are stayed pending a ruling by the Second
Circuit on the arbitration issues.


 

















 


These actions name the same
defendants as the putative class actions, make similar allegations, and seek
the same type of damages under the Sherman Act as sought by the putative class
actions. In effect, Dow has asserted claims in its own name that were already
included within the purported scope of the putative class actions.


 


The proceedings described
above are at an early stage. The claims made appear to track media reports
regarding the DOJ and EC investigations and are not based on any factual
discovery. Consequently, and because of the inherent uncertainty involved in
evaluating potential litigation outcomes, we are not able to determine whether
or not a negative outcome in any of these actions is probable or a reasonable
range for any such outcome and we have not made any provision for any of these
claims in our Consolidated Financial Statements.


 


Other Antitrust Related
Litigation


 


The Chapter 7 trustee of the
liquidated estate of O.N.E. Shipping Inc. brought an action against us and
others in U.S., federal court for alleged antitrust violations that resulted in
O.N.E. Shipping’s liquidation.


 


Securities Litigation


 


In March 2003 an individual
claiming to have purchased SNSA American depositary receipts, Joel Menkes, fled
a putative civil securities class action in the U.S. District Court for the
District of Connecticut against the SNSA Group and certain officers. The action
is captioned as follows: Joel Menkes, individually and on behalf of all others
similarly situated v. Stolt-Nielsen SA, Jacob Stolt-Nielsen, Niels G.
Stolt-Nielsen, Samuel Cooperman, and Reginald J.R. Lee, 3:03 CV 409 (AWT) (D.
Conn.) The complaint appears to be based significantly on media reports about
the O’Brien action and the DOJ and EC investigations described above. Pursuant
to the Private Securities Litigation Reform Act (“PSLRA”) the Court allowed for
the consolidation of any other class actions with this one. No other class
actions were brought during the time allowed, but on June 27, 2003, at
plaintiffs’ request, the Court appointed Irene and Gustav Rucker as lead
plaintiffs in the action.


 


On September 8, 2003, the
plaintiffs fled their Consolidated Amended Class Action Complaint against the
same defendants. The consolidated complaint is brought on behalf of “all
purchasers of SNSA’s ADR’s from May 31, 2000 through February 20,2003 and all
U.S. located purchasers of SNSA’s securities traded on the Oslo Børs to recover
damages caused by defendants’ violations of the U.S. Securities Exchange Act of
1934.” The complaint asserts that our failure to disclose alleged corrupt or
illegal behavior, coupled with allegedly “false and misleading” statements,
caused plaintiff to pay inflated prices for the our securities by making it
appear that we were “immune to an economic downturn that was afflicting the
rest of the shipping industry” and “misleading them to believe that the
Companies’ earnings came from legitimate transactions.”


 


On October 27, 2003 the SNSA
Group filed a motion to dismiss the consolidated complaint in its entirety.
Briefing of the motion was completed in January 2004 and the parties await a
ruling from the Court.


 

















 


We intend to vigorously
defend ourselves against this lawsuit and, in accordance with SFAS No. 5, we
have not made any provision for any liability related to the action in our
Consolidated Financial Statements.


 


Customer Relations Issues


 


We have actively engaged in
discussion with a number of customers regarding the subject matter of the DOJ
and EC antitrust investigations. A number of companies have indicated their support
and some have expressed concerns. We have participated in business discussions
and formal mediation with some customers seeking to address any concerns and
avoid additional litigation. We have reached commercial agreements with several
customers pursuant to which the customers have relinquished any claims arising
out of the matters that are the subject of the antitrust investigations.
Although the impact of these agreements is difficult to assess until they are
fully performed over time, we expect that they will not have a material
negative impact on SNTG’s earnings or cash flows. If favorable market
conditions continue in the future, these agreements may have a more positive
financial impact over time than the commercial arrangements that they replaced.
Based on our interaction with our other significant customers, we expect to
continue doing business with those customers on terms that reflect the market
for our services.


 


Investigations by the U.S.
Department of the Treasury’s Office of Foreign Assets Control


 


The U.S. Department of the
Treasury’s OFAC currently is investigating certain payments by SNTG of
incidental port expenses to entities in Iran as possible violations of the IEEPA
and the Iranian Transactions Regulations. OFAC concluded an investigation of similar
payments by SNTG to entities in the Sudan as possible violations of IEEPA and
the Sudanese Sanctions Regulations. SNTG is cooperating fully with OFAC, and
has implemented policies and procedures to comply with U.S. sanctions
regulations.


 


With respect to OFAC’s Sudan
investigation, on March 20, 2003 SNTG settled the matter with OFAC for a
payment of $95,000 by SNTG and without any determination by OFAC that SNTG’s
payments of incidental port expenses to entities in the Sudan violated U.S.
sanctions regulations.


 


With respect to OFAC’s Iran
investigation, on April 3, 2002 OFAC issued a Cease and Desist Order to SNTG
covering payments by SNTG of incidental port expenses involving unlicensed
shipments to, from or involving Iran. OFAC’s Iran investigation is currently
pending and OFAC has not made any formal determination of whether a violation
has occurred as a result of SNTG’s payments of incidental port expenses to
entities in Iran. OFAC has referred this matter to the U.S. Attorney’s Office
in Connecticut for investigation.


 


Because of the stages of the
Iran investigation and the inherent unpredictability of the outcome of such
proceedings, we are unable to determine whether or not an unfavorable outcome
is probable and we have made no provision for any fines or other penalties
related to OFAC’s Iran investigation in the accompanying Consolidated Financial
Statements.


 

















 


Investigation by U.S.
Attorney’s Office in Connecticut


 


The U.S. Attorney’s Office
in Connecticut has opened an investigation regarding whether SNTG’s “trade with
embargoed countries violated U.S. laws.” We are cooperating fully with the U.S.
Attorney’s Office.


 


Because of the early stage
of this investigation and the inherent unpredictability of the outcome of such
proceedings, we are unable to determine whether or not an unfavorable outcome
is probable and we have made no provision for any fines or other penalties
related to the U.S. Attorney’s investigation in our Consolidated Financial
Statements.


 


Compliance with Existing
Debt Documents


 


At fiscal year end 2003, we
were in compliance with the financial covenants under various creditor
agreements. Such compliance was a result of certain waiver agreements which
were in effect until December 15, 2003. On December 29, 2003, new waiver
agreements became effective extending the waiver period until May 21, 2004,
except as discussed below. For additional information on compliance with terms
of our former $240 million credit facility, see Item 13. “Defaults, Dividends,
Arrearages and Delinquencies.”


 


On February 20, 2004, the
waiver agreement with respect to our Senior Notes was terminated.
Representatives of the holders of our Senior Notes informed us that the Senior
Note holders believed that upon termination of the waiver agreement and the
deconsolidation of SOSA, we were in breach of each of: (i) our leverage
covenant; (ii) our limitations on dividends and stock purchases; (iii) our
limitations on consolidations and mergers and sales of assets; and (iv)
guaranties under the Senior Note agreements. The representatives did not
provide specific details in support of such allegations. We have informed the
representatives of the Senior Note holders that we disagree with these
assertions. On June 16, 2004, we resolved the dispute with our Senior Note
holders regarding the asserted defaults under the Senior Notes and entered into
the Amendment Agreement to amend the Senior Notes Pursuant to the Amendment
Agreement, a permanent waiver was granted by the Senior Note holders in respect
of the defaults they asserted. For additional information, see Item 5, “Operating
and Financial Review and Prospects—Liquidity and Capital Resources—Indebtedness—The
Senior Notes.”


 


As a result of the
termination of the waiver with the note holders, waivers in respect of certain
other financings also expired on February 20, 2004. Waivers that did not
automatically terminate on February 20, 2004, terminated on May 21, 2004, in
accordance with their terms. At that time, we were in compliance with the
financial covenants in the original agreements for those financings, therefore
no default resulted from those waiver terminations.


 

















 


Stolt Offshore


 


Technip


 


In 1996, Coflexip SA and
Cofexip Stena Offshore Limited (now known as Technip S.A. and Technip Offshore
Limited) (“Technip”), commenced legal proceedings in the UK High Court against
three subsidiaries of SOSA for infringement of a certain patent held by Technip
on flexible flowline laying technology. The claim related to SOSA’s use of the
fexible lay system on the Seaway Falcon. The claim was heard by the UK High
Court in 1998 and on January 27, 1999 the disputed patent was held valid in
favor of Technip. Following this judgment, Technip claimed damages relating to
lost profit for five projects, plus legal costs and interest. However, the
damages claim was stayed pending the appeal by both parties against the January
1999 decision. The Court of Appeal dismissed the defendant’s appeal and
maintained the validity of the patent. SOSA applied for leave to appeal the Court
of Appeal decision to the House of Lords, which was denied. As a result, the
equipment part as well as the process part of the patent were held valid.


 


During 2001, Technip
submitted an amended claim for damages claiming the lost profits on a total of 15
projects. In addition there was a claim for alleged price depreciation on
certain other projects. The total claim was for UK pounds 63 million
(approximately $118 million), plus interest, legal fees and a royalty for each
time that the flexible lay system tower on the Seaway Falcon was brought into
UK waters. SOSA estimated that the total claim would be approximately UK pound
88 million (approximately $165 million). In the alternative, Technip claimed a
reasonable royalty for each act of infringement, interest and legal costs.
Technip did not quantify the claim.


 


During 2003, the UK High
Court held that the same patent, the subject of the proceedings against SOSA,
was invalid in a separate and unrelated litigation between a company of the
Halliburton Group and Technip. That decision has been appealed by Technip.


 


In light of the decision in
the Halliburton case, SOSA applied to the UK High Court to stay the damages
inquiry in the Stolt Offshore case, pending the resolution of the Halliburton
case. The UK High Court denied the request. SOSA appealed this decision to the
UK Court of Appeal and the UK Court of Appeal, subsequent to a hearing in January
2004, decided that SOSA could not benefit from the patent being revoked in the
Halliburton case. However, the UK Court of Appeal did not decide on whether or
not to stay the damages inquiry, nor on whether or not to recommend that leave
to appeal to the House of Lords be given. These two issues were expected to be
considered by the UK Court of Appeal after the decision in the Halliburton case
was known. The damages inquiry in the infringement case with Technip was
scheduled to be heard beginning in late April 2004.


 


As of November 30, 2002,
SOSA, in consultation with its advisers, had assessed that the range of possible
outcomes for the resolution of damages was $1.5 million to $130.0 million and
determined that no amount within the range was a better estimate than any other
amount. Consequently, in accordance with SFAS No. 5, as interpreted by the FASB
Interpretation No. 14 “Reasonable Estimation of the Amounts of a Loss,” SOSA
provided $1.5 million in the financial statements, being the lower amount of
the range.


 


As of November 30, 2003,
SOSA, in consultation with its advisers, provided for an increased contingency
reserve of $9.3 million related to this litigation, reflecting SOSA’s best
estimate of the then expected settlement.


 

















 


On March 18, 2004, SOSA
announced that it and Technip had reached a settlement of this matter. The
settlement involves (i) a cash payment by SOSA of an amount within its
contingency reserve described above, (ii) Technip’s grant of a license to SOSA
for the use of the allegedly infringing technology covering the North Sea area
for future periods for an immaterial annual fee, (iii) the termination of
arbitration proceedings in the U.S. with respect to an unrelated matter, with
neither party making payment to the other, and (iv) a transfer to Technip of a
portion of SOSA’s minority equity interest in a project joint venture involving
Technip and SOSA. SOSA estimates the fair value of this interest to be
approximately $6.0 million. Technip has not granted to SOSA a license to use
the allegedly infringing technology or process in any other jurisdiction.


 


Duke Hubline


 


In October 2003, SOSA commenced
arbitration proceedings against Algonquin Gas Transmission Company, claiming
approximately $57.8 million in unpaid invoices for work performed while laying
an offshore gas pipeline off the coast of Massachusetts for the Duke Hubline
project (a conventional project in the U.S., executed in 2002 and 2003).
Algonquin Gas Transmission, the owner of the pipeline, challenged its
obligation to pay any of the invoice amounts and asserted counterclaims
totaling an additional $39 million for alleged mismanagement and inadequate
performance by SOSA. Due to Algonquin Gas Transmission’s non-payment of
invoiced amounts, SOSA was unable to pay certain of its subcontractors employed
to work on the pipeline, two of which, Bisso Marine Company and Torch Offshore
Inc., filed lawsuits against SOSA in Louisiana state courts for non-payment of
amounts invoiced. These same subcontractors claimed liens over the pipeline,
which liens are the subject of proceedings commenced by them against SOSA and
Algonquin Gas Transmission in Massachusetts state court.


 


SOSA’s dispute with
Algonquin Gas Transmission was referred to mediation in late January 2004, at
which the parties reached a “settlement in principle” whereby (i) Algonquin Gas
Transmission agreed to pay SOSA $37 million in full and final settlement of
SOSA’s claims and (ii) SOSA agreed to withdraw the arbitration proceedings and
use its best efforts to secure the release of the above-mentioned subcontractor
liens in full and final settlement of Algonquin Gas Transmission’s counterclaims.
A definitive settlement agreement was executed on February 26, 2004 reflecting
the terms of the “settlement in principle” and Algonquin Gas Transmission paid
the settlement amount to SOSA. The value of the settlement is consistent with
the receivable of $37 million recorded as of November 30, 2003. SOSA has also
reached agreements in principle with Bisso Marine Company and Torch Offshore
Inc. to settle the related subcontractor litigation.


 


West African Contract


 


In connection with a major
West African contract, SOSA received a letter dated December 12, 2003 from the
customer notifying SOSA of a potential claim for an unspecified amount of
liquidated damages. The claim relates to delays in completion of certain
milestones. SOSA believes that the customer does not have a valid case for
liquidated damages, and on that basis has not recorded a provision.


 

















 


Stolt Sea Farm


 


Several SSF companies and
almost 45 companies in the aquaculture industry, as well as processing
companies, seafood distributors and grocery retailers, were served with a
Notice of Violation, by the Attorney General, State of California, on January
30, 2004. The alleged violation is for sale of salmon without warning labels
regarding PCB content. This is a so-called “Proposition 65” proceeding under
Californian Law.


 


The outcome of this action
is uncertain, and this could end with decree by the court that salmon as
merchandise has to carry certain labels indicating the PCB content. It is also
possible that the companies subject to this proceeding become liable for a
monetary fine.


 


In April 2003, two lawsuits
were filed against SSF pertaining to its operations in the Broughton
Archipelago, British Columbia. Both actions were brought in the name of
aboriginal organizations. The lawsuit filed in the Federal Court of Canada
seeks to set aside the decision of the Minister of Fisheries and Oceans to
permit the relocation of an aquaculture site from Eden Island to Humphrey Rock.
The other, filed in the Supreme Court of British Columbia, seeks damages and
other relief arising from the stocking of aquaculture facilities in territory
claimed to be subject to aboriginal title of the plaintiffs. In this action,
the plaintiffs have given notice of an intention to apply for an interlocutory
injunction to restrain the continuance of aquaculture operations pending
resolution of the dispute. The federal and provincial governments and Heritage
Salmon Ltd. are co-defendants in the suit along with SSF. Both actions are
being vigorously defended by all named defendants, and we have not made any
provision for any liability related to these actions in our Consolidated
Financial Statements.


 


General


 


We are a party to various
other legal proceedings arising in the ordinary course of business. We believe
that none of the matters covered by such legal proceedings will have a material
adverse effect on our business or financial condition.


 


The ultimate outcome of
governmental and third party legal proceedings are inherently difficult to
predict. It is reasonably possible that actual expenses and liabilities could
be incurred in connection with both asserted and unasserted claims in a range
of amounts that cannot reasonably be estimated. It is possible that such
expenses and liabilities could have a material adverse affect on our financial
condition, cash flows or results of operations in a particular reporting
period.


 

















 


APPENDIX A 


 


DEFINITIONS


 

















 


APPENDIX A TO TERM LOAN AND
REVOLVING CREDIT FACILITY AGREEMENT


 


PART I


 


Rules of Construction


 


The following rules of usage
shall apply to the Credit Agreement, the Notes and the other Security Documents
(and each appendix, schedule, exhibit and annex thereto) unless otherwise
required by the context or unless otherwise specified therein:


 


(a)                                  Unless otherwise specified, definitions set
forth herein, in the Notes or in any other Security Document shall be equally
applicable to the singular and plural forms of the terms defined.


 


(b)                                 References to any Person in the Credit
Agreement, the Notes or any Security Document shall include such Person, its
successors and permitted assigns and transferees


 


(c)                                 References to any law in the Credit
Agreement, the Notes or any Security Document includes any amendment or modification
to such law and any rules or regulations issued thereunder or any law enacted
in substitution or replacement thereof.


 


(d)                                Words such as “hereunder”, “hereto”, “hereof”
and “herein” and other words of like import used in the Credit Agreement, the
Notes or any Security Document shall, unless the context clearly indicates to
the contrary, refer to the whole of such document and not to any particular
article, section, subsection, paragraph or clause thereof.


 


PART
II


 


Glossary
of Terms


 


“Act” means the
Securities Act of 1933, as amended, and the Laws promulgated or issued from
time to time thereunder.


 


“Administrative Agent”
means DnB NOR Bank ASA, New York Branch, with its offices at 200 Park Avenue,
New York, NY 10166, not in its individual capacity, but in its capacity as
administrative agent for the Lenders.


 


“Advances” means any
amount advanced to the Borrowers with respect to the Credit Facilities or (as
the context may require) the aggregate amount of all such Advances for the time
being outstanding.


 

















 


“Affiliate” when used
with respect to a Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person A Person
shall be, deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of stock,
by contract or otherwise.


 


“Agent(s)” means each
of the Administrative Agent and the Collateral Agent.


 


“Agency Fee” means
the fee payable pursuant to the Offer Letter.


 


“Applicable Margin”
means that rate per annum to be determined, subject to any adjustments pursuant
to Section 6.1 of the Credit Agreement, according to SNSA’s Debt/EBITDA Ratio
as determined by the most recent Certificate of Compliance of SNSA (delivered
to the Administrative Agent pursuant to Section 9.1(g) of the Credit Agreement)
in accordance with the following:


 




	
  Debt/EBITDA Ratio

  	
   

  	
  Applicable Margin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  <3.0

  	
   

  	
  1.375

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  >3.0
  but <4.0

  	
   

  	
  1.625

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  >4.0 but <5.0

  	
   

  	
  1.750

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  >5.0

  	
   

  	
  1.875

  	
  %

  






 


provided, that during the
six-month period commencing on the Closing Date, the Applicable Margin shall be
1.875%; provided, further, that should SNSA fail to deliver a Certificate of
Compliance in accordance with the Credit Agreement, the Debt/EBITDA Ratio shall
be deemed to be greater than 5.0.


 


“Applicable Rate”
means any rate of interest applicable to the Credit Facilities from time to
time pursuant to Section 6.1 of the Credit Agreement.


 


“Assignment and
Assumption Agreement” means the Assignment and Assumption Agreement
executed pursuant to Section 10 substantially in the form set out in Exhibit G.


 


“Balloon Amount”
means an amount equal to forty percent (40%) of the of the aggregate amount of
all Advances outstanding as of the one year anniversary of the Closing Date.


 


“Bankruptcy Law”
means Title 11 of the United States Code, and any applicable non-United States
or United States Federal, state or local insolvency, reorganization,
moratorium, fraudulent conveyance or similar Law now or hereafter in effect for
the relief of debtors.


 


“Business Day” means
(x) any day other than a Saturday, Sunday or any other day on which banking
institutions in New York, New York, London, England, Frankfurt, Germany or
Hamburg, Germany are required or authorized by Law to suspend operations and
(y) that is a day on which dealings are carried on in the London interbank market.


 


2

















 


“Cash” means cash at
a bank or in hand which is not subject to any charge back or other Lien and to
which SNSA has free, immediate and direct access.


 


“Cash Equivalents”
means the following where SNSA has free, immediate and direct access:


 


(a)                                  any security issued directly or fully
guaranteed or insured by the United States of America or any Organisation for
Economic Co-operation and Development (OECD) government whose securities are readily marketable in London,
Paris, Frankfurt or New York City, or any agency or instrumentality thereof;


 


(b)                                 other readily marketable securities or other
easily realizable investments having a rating of at least A from Standard and
Poor’s Ratings Group or Moody’s Investors Service, Inc;


 


(c)                                  any Eurodollar time deposit, overnight
deposit or banker’s acceptance, issued by, or time deposit of a commercial
banking institution which has, on a combined basis, capital, surplus and
undivided profit of not less than $250,000,000 and has a Moody’s Bank Credit
Service rating for short term bank deposits of at least P2;


 


(d)                                 repurchase obligations with a term of not
more than ninety (90) days for underlying securities of the types described in
paragraph (a) above entered into with any commercial banking institution
meeting the qualifications specified in paragraph (c) above;


 


(e)                                  short term commercial paper issued by any
person, having one of the top two investment ratings from either Standard &
Poor’s Ratings Group or Moody’s investors Service, Inc;


 


(f)                                    investments in money market funds
substantially all of whose assets are comprised of securities of the types
described in paragraphs (a) to (e) above; and


 


(g)                                 deposits which are unrestricted as to
withdrawal with commercial banking institutions meeting the criteria set forth
in paragraph (c) above.


 


“Casualty” means any
damage or destruction of all of any portion of the Terminals as a result of
fire or other casualty.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act, 42 U.S.G. Section
9601 et  seq. and as further amended from time to time.


 


“Certificate of
Compliance” means a certificate substantially in the form set forth in Exhibit
I, signed by the chief financial officer or another senior finance officer or
representative of SNSA acceptable to the Administrative Agent


 


3

















 


“CIBC Facility” means
that certain leasing transaction more thoroughly described by that certain
Participation Agreement dated January 29, 1998 by and among Stolthaven Houston
as lessee, SNSA as guarantor, First Security Bank, National Association as
owner trustee, CIBC Inc. as owner participant, certain financial institutions
as note purchasers and Canadian Imperial Bank of Commerce as agent for the note
purchasers.


 


“Cleanup” means all
actions required to: (1) cleanup, remove, treat or remediate Hazardous
Materials in the indoor or outdoor environment; (2) prevent the Release of
Hazardous Materials so that they do not migrate, endanger or threaten to
endanger public health or welfare of the indoor or outdoor environment; (3)
perform pre-remedial studies and investigations and post-remedial monitoring
and care; or (4) respond to any government requests for information or
documents in any way relating to cleanup, removal, treatment or remediation or
potential cleanup, removal, treatment or remediation of Hazardous Materials in
the indoor or outdoor environment.


 


“Closing Date” means
the date (which shall be a Business Day) on which the first Advance is granted
to the Borrowers by the Lenders pursuant to the Credit Agreement which date
shall not be later than August 31, 2004.


 


“Code” means the
Internal Revenue Code of 1986, as amended, and the Laws promulgated or issued from
time to time thereunder.


 


“Collateral Agent”
means DnB NOR Bank ASA, New York Branch, with its offices at 200 Park Avenue,
New York, NY 10166, not in its individual capacity, but in its capacity as
collateral agent for the Lenders.


 


“Commitment” means
with respect to each Lender the amount set forth opposite its name in Schedule
1.


 


“Condemnation” means
any condemnation, requisition, confiscation, seizure or other taking or sale of
the use, access, occupancy, easement rights of title to the Terminals or any
part thereof, wholly or partially (temporarily or permanently), by or on
account of any actual or threatened eminent domain proceeding or other taking
of action by any Person having the power of eminent domain, including an action
by a Governmental Authority to change the grade of, or widen the streets
adjacent to, the Terminals or alter the pedestrian or vehicular traffic flow to
the Terminals so as to result in change in access to the Terminals, or by or on
account of an eviction by paramount title or any transfer made in lieu of any
such proceeding or action. A “Condemnation” shall be deemed to have occurred on
the earliest of the dates that use, occupancy or title is taken.


 


“Consolidated Debt”
means for SNSA and its Subsidiaries (on a consolidated basis) at any time, the
aggregate value of (i) moneys borrowed, plus (ii) notes payable (whether
promissory notes or otherwise), plus (iii) amounts raised by acceptance under
any acceptance credit facility, plus (iv) amounts raised pursuant to any note
purchase facility or the issue of bonds, notes, debentures or similar
instruments, plus (v) the amount of any liability in respect of lease or hire
purchase obligations which, according to GAAP, would be treated as finance or
capital leases, plus (vi) all contingent liabilities, including guarantee
obligations, related to debt and capital lease obligations of third parties
which, according to GAAP, are considered probable


 


4

















 


and estimable, plus (vii)
subordinated debt, less (viii) the amount of debt for which there is restricted
cash deposit which will repay all or part of such financial debt obligation.


 


“Consolidated EBITDA”
means, for SNSA and its Subsidiaries (on a consolidated basis) the aggregate
value of (i) net income (or net loss), (ii) Consolidated Interest Expense,
(iii) provisions for income taxes, (iv) depreciation, amortization and other
non-cash charges deducted in arriving at such net income (or net loss), at any
time during the term of this Credit Agreement as determined in accordance with
GAAP for the most recent four fiscal quarters of SNSA, calculated on a pro forma basis to include acquisitions.


 


“Consolidated Interest
Expense” means, for SNSA and its Subsidiaries (on a consolidated basis) for
the most recent four fiscal quarters of SNSA, interest expense (including the
interest component of any capital lease obligations) on all Consolidated Debt,
determined in accordance with GAAP.


 


“Consolidated Tangible
Net Worth” means, for SNSA and its Subsidiaries (on a consolidated basis)
at any time, (a) the sum, to the extent shown on SNSA’s consolidated balance
sheet, of (i) the amount of issued and outstanding share capital, less the cost
of treasury shares of SNSA, plus (ii) the amount of surplus and retained
earnings, less (b) intangible assets as determined in accordance with GAAP.


 


“Credit Agreement”
means the Term Loan and Revolving Credit Facility Agreement dated as of the
Closing Date, by and among (1) STOLTHAVEN HOUSTON INC., a corporation
incorporated under the laws of the State of Texas (“Stolthaven Houston”), and
STOLTHAVEN NEW ORLEANS LLC, a Louisiana Limited Liability Company (“Stolthaven
New Orleans”) (the “Borrowers” and each a “Borrower”), (2) the banks and
financial institutions listed on Schedule 1, as lenders (together with any bank
or financial institution which becomes a Lender pursuant to Section 10, the “Lenders”),
and (3) DNB NOR BANK ASA, acting through its New York Branch (“DNB”), as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”), as collateral agent for the Lenders (in such capacity, the “Collateral
Agent”) and as arranger for the Lenders.


 


“Credit Facilities”
means, collectively, the Revolver and the Term Loan.


 


“Creditor(s)” means
the Lenders and the Agents.


 


“Debt/EBITDA Ratio”
means , at any time, the ratio of SNSA’s Consolidated Debt to Consolidated
EBITDA determined on a trailing four quarter basis.


 


“Default Rate” means
a rate equal at all times to two percent (2.0%) per annum above the Applicable
Rate.


 


“Dollars”or “$” means
lawful currency of the United States of America.


 


“Drawdown Date” means
the date(s), each being a Business Day, upon which the Borrowers have requested
that an Advance be made available to the Borrowers, and such Advance is made,
as provided in Section 3.


 


5

















 


“Drawdown Notice” has
the meaning ascribed thereto in Section 3.2 of the Credit Agreement.


 


“Eligible Assignee”
means (a) any Lender, (b) any Affiliate of a Lender or (c) a financial
institution with a total net worth of not less than $50,000,000 approved by the
Borrowers, such approval shall be deemed to be given by the Borrowers in the
absence of written notice to the contrary within fifteen (15) Business Days of
receipt of the request to the Borrowers; provided, however, that
upon the occurrence and during the continuation of an Event of Default no such
approval from the Borrowers shall be necessary.


 


“Environmental Action”
means any administrative, regulatory or judicial action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement arising under any Environmental Law or Environmental Permit relating
to Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment in connection with or arising from exposure
to or the actual or potential release of Hazardous Materials, including (a) by
any Governmental Authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any Governmental Authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.


 


“Environmental Audit”
shall mean the phase one environmental audit with respect to each Terminal
delivered on or before the Closing Date pursuant to Section 4.1(u) of the
Credit Agreement.


 


“Environmental Event”
means (i) an environmental event that has occurred or any environmental
condition that is discovered in, on, beneath, from or involving a Terminal
(including the presence, emission or release of Hazardous Materials or the
violation of any applicable Environmental Law) for which a remediation or
reporting could reasonably be required under applicable Environmental Law or
(ii) notification received by any Security Party that it, any other Security
Party, or a Terminal is the subject of an Environmental Action relating to such
Terminal that could reasonably be expected to result in any ordered remediation
or corrective action or other liability under applicable Environmental Law.


 


“Environmental Law”
means any and all applicable international, foreign, Federal, state, regional
and local Laws (as well as obligations, duties and requirements relating
thereto under common law) relating to: (a) emissions, discharges, spills,
releases or threatened releases of pollutants, contaminants, Hazardous
Materials, materials containing Hazardous Materials, or hazardous or toxic
materials or wastes into ambient air, surface water (including, without
limitation, all inland and ocean waters), groundwater, watercourses, publicly
or privately-owned treatment works, drains, sewer systems, wetlands, septic
systems or onto land; (b) the use, treatment, storage, disposal, handling,
manufacturing, transportation, or shipment of Hazardous Materials, materials
containing Hazardous Materials or hazardous and/or toxic wastes, materials,
products or by-products (or, of equipment or apparatus containing Hazardous
Materials); or (c) pollution or the protection of human health, safety or the
environment from exposure to or injury or damage caused by Hazardous Materials:
Without limitation, “Environmental Law” includes CERCLA and OPA 90 and IMO
13(g) (when and if the latter comes into effect).


 


6

















 


“Environmental Permit”
means any Permit, approval, identification number, license or other authorization
required under any Environmental Law.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
any regulations and the Laws promulgated or issued from time to time thereunder
and any successor legislation.


 


“ERISA Affiliate”
means a trade or business (whether or not incorporated) which is under common
control with a Person within the meaning of Sections 414(b), (c), (m) or (o) of
the Code.


 


“ERISA Plan” means an
“employee benefit plan” within the meaning of Section 3(3) of ERISA which is
subject to Title I of ERISA, or a “plan” within the meaning of Section 4975 of
the Code or a Person that is deemed to hold “plan assets” within the meaning of
29 C.F.R. § 2510.3-101 of any such employee benefit plan or plan


 


“Event of Default”
has the meaning set forth in Section 8.01 of the Credit Agreement.


 


“Event of Loss” means
a Casualty or a Condemnation.


 


“Excluded Tax” means
any Tax which is imposed on the net income of a Lender by a taxing authority in
the jurisdiction of organization of such Lender or in a jurisdiction in which
such Lender has an office or fixed place of business.


 


“Fair Market Value”
means the fair market value of a Terminal as determined by an independent
appraiser approved by the Administrative Agent, which appraisal shall not be
dated more than thirty (30) days prior to the date on which such determination
of “Fair Market Value” is required.


 


“Final Payment Date”.
means the date which is five (5) years from the Closing Date unless such date
is not a Business Day in which case the Final Payment Date shall be the
Business Day immediately preceding such fifth (5th) anniversary of the Closing Date.


 


“Financial Statements”
has the meaning set forth in GAAP.


 


“GAAP” means the
generally accepted accounting principles in the United States of America, from
time to time in effect, subject to any changes in the rules of GAAP,
consistently applied, always provided that, if SNSA wishes to change accounting
principles within the applicable rules of GAAP, the SNSA shall notify the
Administrative Agent of the intention together with an explanation of the
effects on the financial covenants contained in the Credit Agreement. Should
the Administrative Agent, and/or SNSA, find that such change will impact upon
the result of the calculation of the financial covenants contained in the
Credit Agreement, the Administrative Agent will, following consultation with
SNSA, stipulate amendments to the financial covenants so that the ratio of the
performance of SNSA and its Subsidiaries (on a consolidated basis) in respect
of the covenants reflects the position which would have been the case had no
changes to SNSA’s accounting principles taken place.


 


7

















 


“Governmental Action(s)”
shall mean all consents, approvals or authorizations of, or filings,
registrations or qualifications with, or the giving of notice or taking of any
other action with respect to, any Governmental Authority.


 


“Governmental Authority”
means any international, national, state, municipal or other government (or any
department, ministry, commission, bureau, court or other subdivision thereof,
or any agency, instrumentality or regulatory agency of any thereof) in any
jurisdiction.


 


“Guarantor” means
individually, and “Guarantors” means collectively, SNSA and SNTG.


 


“Guaranty” means the
Guaranty executed by the Guarantors in favor of the Collateral Agent
substantially in the form set out in Exhibit C.


 


“Hazardous Materials”
means (a) hazardous materials, hazardous wastes, and hazardous substances as
those or similar terms are defined under any Environmental Laws, including, but
not limited to, the following: the Hazardous Materials Transportation Act, 49 U.S.C
Section 1801 et se q., as amended from time to time, the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et  seq., as amended from
time to time, CERCLA, the Clean Water Act, 33 U.S.C. Section 1251 et  seq.,
as amended from time to time the Clean Air Act, 42 U.S.C. Section 7401 et
seq., as amended from time to time and/or the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et  seq., as amended from time to
time; OPA 90; (b) petroleum and petroleum products including crude oil and any
fractions thereof; (c) natural gas, synthetic gas, and any mixtures thereof;
(d) asbestos and/or any material which contains any hydrated mineral silicate,
including, but not limited to, chrysolite, amosite, crocidolite, tremolite,
anthophylite and/or actinolite, whether friable or non-friable; (e)
polychlorinated biphenyls (“PCBs”), or PCB-containing materials, or fluids; (f)
radon; (g) any other hazardous radioactive, toxic or noxious substance,
material, pollutant, or solid, liquid or gaseous waste; and (h) any hazardous
substance that, whether by its nature or its use, is subject to regulation
under any Environmental Law or with respect to which any international,
Federal, state or local Environmental Law or governmental agency requires environmental
investigation, monitoring or remediation.


 


“IMO 13(g)” means
Regulation 13(g) of the International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the 1978 Protocol, as amended from
time to time, promulgated by the International Maritime Organization.


 


“Indebtedness” means
with respect to any Person at any date of determination (without duplication),
(i) all indebtedness of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds (excluding bonds obtained to secure contractual
obligations in the ordinary course of business), debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of letters
of credit or other similar instruments (including reimbursement obligations
with respect thereto but excluding undrawn letters of credit obtained to secure
contractual obligations in the ordinary course of business), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery thereof or the
completion of such services, except trade payables, (v) all obligations on


 


8

















 


account of principal of such
Person as lessee under capitalized leases, (vi) all indebtedness of other
Persons secured by a lien on any asset of such Person, whether or not such
indebtedness is assumed by such Person; provided that the amount of such
indebtedness shall be the lesser of (a) the fair market value of such asset at
such date of determination and (b) the amount of such indebtedness, and (vii)
all indebtedness of other Persons guaranteed by such Person to the extent
guaranteed; the amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, provided
that the amount outstanding at any time of any indebtedness issued with
original issue discount is the face amount of such indebtedness less the
remaining unamortized portion of the original issue discount of such
indebtedness at such time as determined in conformity with GAAP;


 


“Initial Payment Date”
means the date occurring three months after the first anniversary of the
Closing Date.


 


“Insurance Requirements”
means the insurance requirements contained in Section 2.2(h) of the Mortgages.


 


“Interest Notice” means a
notice from the Borrowers to the Administrative Agent specifying the duration
of any relevant Interest Period


 


“Interest Period”
means with respect to any Advance the period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the calendar month that is one (1), three (3) or six (6)
months (as selected by the Borrowers pursuant to an Interest Notice) thereafter
(or if no such date exists for any month, on the last day of such month) and
each successive period commencing on the last day of the preceding Interest
Period and ending on the numerically corresponding day in the calendar month
that is one (1), three (3) or six (6) months, as applicable, thereafter provided,
however, that:


 


(i)                                     if any Interest Period would otherwise end on
a day that is not a Business Day, that Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;


 


(ii)                                  any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of the then commencing Interest
Period) shall end on the last Business Day of the calendar month at the end of
such Interest Period;


 


(iii)                               no Interest Period shall extend beyond the
Final Payment Date; and


 


(iv)                              for purposes of calculating interest for any
Interest Period, such calculations shall include the first day but exclude the
last day of any such Interest Period.


 


9

















 


“Investment(s)” means
the lending of any money, the granting of any credit (other than to customers
in the ordinary course of business), the guarantee of any obligations or the
making of any advance or capital contribution


 


“Law” means any law,
treaty, directive, statute, rule, regulation, ordinance, order, directive,
code, interpretation, judgment, decree, injunction, writ, determination, award,
Permit, license, authorization, direction, requirement or decision of or
agreement with or by any government or governmental department, commission,
board, court, authority, agency, official or officer having jurisdiction of the
matter in question.


 


“LIBO Rate” for each
Interest Period, means the rate appearing on the Bloomberg Screen British
Banker’s LIBOR fixing, at approximately 11:00 AM, (London time) two (2)
Business Days before the first day of such Interest Period, as the rate for
Dollar deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the “LIBO
Rate” applicable to such Interest Period shall be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the respective rates
per annum at which deposits in Dollars are offered to the Administrative Agent
in the London interbank market at approximately 11:00 A.M. (London time)
two-(2) Business Days before the first day of such Interest Period in an amount
approximately equal to the amount of the Notes and the Certificates and for a
period of time comparable to such Interest Period.


 


“Lien” means any
mortgage, deed or agreement to secure debt, deed of trust, pledge, security
interest, security title, encumbrance, lien, judgment lien, writ of execution,
attachment or charge of any kind, including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease
in the nature thereof, and the filing of or agreement to give, any security
interest or financing statements under the UCC or under any applicable personal
property security act or any comparable Law of any jurisdiction.


 


“Liquidity” means the
aggregate of Cash, Cash Equivalents and the aggregate unused, committed credit
lines available to the SNSA and its Subsidiaries with a remaining tenor of no
less than one (1) year.


 


“Majority Lenders”
means Lenders holding at least fifty-one percent (51%) of the aggregate unpaid
principal amount of the Credit Facilities.


 


“Material Adverse Effect”
means (i) a material adverse effect on the financial condition of SNSA and its
Subsidiaries, taken as a whole, (ii) a material adverse effect on the ability
of any Security Party to perform its obligations under the Credit Agreement,
the Notes or Security Documents to which it is a party, (iii) a material
adverse effect on the value, useful life, utility or function of a Terminal or
both Terminals, (iv) a material adverse effect on the rights or remedies of the
Creditors under the Credit Agreement, the Notes or the Security Documents, (v)
a material adverse effect on the status, priority, enforceability, existence or
perfection of the Creditors right, title or interest in the Terminals, the Credit
Agreement, the Note or any Security Document, or (vi) the imposition, be it by
preliminary or final determination, of any criminal or material civil liability
on a Creditor.


 


10

















 


“Mortgage” means any
of, and “Mortgages” means each of the Texas and Louisiana deeds of trust with
respect to the Terminals granted by the Borrowers, as mortgagors, to the
Collateral Agent, as mortgagee substantially in the forms set out in Exhibit E
and Exhibit D, respectively.


 


“Multiemployer PIan”
means at any time a multiemployer plan within the meaning of Section 4001(a)(3)
of ERISA either (i) to which any ERISA Affiliate is then making or accruing an
obligation to make contributions or (ii) has at any time within the preceding
five plan years been maintained, or contributed to, by any Person who was at
such time an ERISA Affiliate for employees of any Person who was at such time
an ERISA Affiliate.


 


“Net Worth” means, at
any time, shareholders equity (excluding treasury stock) of a Person determined
in accordance with GAAP.


 


“Notes” means the
Term Loan Note and the Revolver Note.


 


“Offer Letter” means
that certain letter dated June 24, 2004 from DNB NOR Bank, ASA, New York branch
to the Borrowers and accepted on June 29, 2004 with respect to the terms and
conditions of the Credit Facilities.


 


“OPA 90” means the
United States Oil Pollution Act, 1990, as amended from time to time and the
Environmental Law of any jurisdiction, whether or not in effect on the Closing
Date, the violation of which includes either strict liability of a Security
Party or unlimited liability of a Security Party.


 


“Payment Date” means
with respect to the Credit Facilities, the fifteen (15) month anniversary of
the Closing Date and each date falling every three (3) months thereafter during
the term of the Credit Facilities corresponding to the day of the month on
which the Closing Date falls (or if no such date exists for any month, on the
last day of such month) and including the Final Payment Date


 


“Permit” means any
approval, certificate of occupancy, consent, waiver, exemption, variance, franchise,
order, permit, authorization, right or license of or from any United States or
other applicable jurisdiction, federal, state, regional or local government or
agency or subdivision thereof.


 


“Permitted Lien”
means (i) the respective rights and interests of the parties to the Credit
Agreement, the Notes and the other Security Documents as provided in such
agreements; (ii) any Liens for taxes, assessments, levies, fees and other
governmental and similar charges not due and payable or the amount or validity
of which is being contested in good faith by appropriate proceedings so long as
(a) there exists no material risk of sale, forfeiture or loss of, or loss or
interference with use or possession of, or diminution of value, utility or
useful life of, a Terminal or any interest therein, or any risk of interference
with the repayment of the Credit Facilities, (b) such contest would not result
in, or increase the risk of, the imposition of any criminal liability on any
Creditor, (c) such contest would not materially and adversely affect the
rights, titles and interests of any Creditor in or to a Terminal or any
interest therein, and (d) appropriate reserves with respect thereto are
maintained in accordance with GAAP; (iii) any Liens of mechanics, suppliers,
vendors, materialmen, laborers, employees, repairmen and other like Liens
arising in


 


11

















 


the ordinary course of the
Borrowers’ business securing obligations which are not due and payable or the
amount or validity of which is being contested in good faith by appropriate
proceedings so long as (a) there exists no material risk of sale, forfeiture or
loss of, or loss or interference with use or possession of, or diminution of
value, utility or useful life of, a Terminal or any interest therein, or any
risk of interference with the repayment of the Credit Facilities, (b) such
contest would not result in, or increase the risk of, the imposition of any
criminal liability on any Creditor, (c) such contest would not materially and
adversely affect the rights, titles and interests of any Creditor in or to a
Terminal or any interest therein, and (d) appropriate
reserves with respect thereto are maintained in accordance with GAAP; (iv)
Liens arising out of any judgment or award against the Borrowers
with respect to which an appeal or proceeding for review is being
taken in good faith and with respect to which there shall have been
secured a stay of execution pending such appeal or proceeding for review so
long as (a) there exists no material risk of sale,
forfeiture or loss of, or loss or interference with use or possession of, or
diminution of value, utility or useful life of, a Terminal or any interest therein, or any risk of interference with the repayment of
the Credit Facilities, (b) such contest would not result in, or increase the
risk of, the imposition of any criminal liability on any Creditor, (c)
such contest would not materially and adversely affect the rights, titles and interests of any Creditor in or to a Terminal or any interest
therein, and (d) appropriate reserves with respect thereto are maintained in
accordance with GAAP; (v) salvage
rights of insurers under insurance policies maintained by the Borrowers pursuant
to the Credit Agreement and the Security Documents; and (vi) claims and
easements with respect to a Terminal indicated in the description thereof on
Appendix B to the Credit Agreement.


 


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


 


“Pledge Agreement(s)
means the pledge agreement(s) to be executed by SNIGI in favor of the
Collateral Agent pursuant to Section 4.1(k), substantially in the form set out
in Exhibit F.


 


“Proceeding” means
any action, suit or proceeding in equity or at law or otherwise.


 


“Regulatory Change”
means any change after the Closing Date in Federal, state or foreign law or
regulations or the adoption or making after such date of any interpretation,
directive or request applying to a class of financial institutions including
any Creditor or under any Federal, state or foreign law or regulation (whether
or not having the force of law and whether or not failure to comply therewith
would be unlawful) by any court or governmental or monetary authority charged
with the interpretation or administration thereof.


 


“Release” means any
release, spill, emission, discharge, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the indoor or
outdoor environment (including, without limitation, ambient air, surface water,
groundwater and surface or subsurface strata) or into or out of any property,
including the movement of Hazardous Materials through or in the air, soil,
surface water, groundwater or property.


 


“Revised Terms” has
the meaning set forth in Section 9 1(s)


 


12

















 


“Revolver” means the
revolving credit facility in an aggregate amount not to exceed Twenty Million
United States Dollars (US$20,000,000) to be made available to the Borrowers
pursuant to Section 3.1(c) of the Agreement.


 


“Revolver Advance” means
any amount advanced to the Borrowers with respect to Revolver or (as the
context may require) the aggregate amount of all such Revolver Advances for the
time being outstanding.


 


“Revolver Drawdown Date”
means the dates, each being a Business Day not later than the date immediately
preceding the first anniversary of the Closing, upon which the Borrowers have
requested that a Revolver Advance be made available to the Borrowers as provided in Section 3.1(c).


 


“Revolver Maturity Date”
means the Business Day immediately preceding the one year anniversary of the
Closing Date.


 


“Revolver Note” means
the promissory note to be executed by the Borrowers to the order of the
Administrative Agent pursuant to Section 4.1(b), to evidence the Revolver
substantially in the form set out in Exhibit A.


 


“Security Documents”
means, collectively, the Guaranty, the Mortgages, the Pledge Agreements and any
financing or similar statements filed in connection therewith.


 


“Security Party(ies)”
means, collectively, the Borrowers, the Guarantors and SNTGI.


 


“Shipowning Subsidiary”
means any vessel-owning Subsidiary of Stolt-Nielsen Transportation Group Ltd.
(Bermuda).


 


“Significant Casualty”
means a Casualty that in the reasonable, good faith judgment of the Borrowers
(as evidenced by an Officer’s Certificate) either (a) renders a Terminal unsuitable
for continued use as commercial property of the type of such Terminal
immediately prior to such Casualty or (b) is so substantial in nature that
restoration of such Terminal to substantially its condition as existed
immediately prior to such Casualty would be impracticable or impossible or is
reasonably expected to cost in excess of $10,000,000 with respect to the
Terminal owned by Stolthaven New Orleans and $25,000,000 with respect to the
Terminal owned by Stolhaven Houston.


 


“Significant Condemnation”
means (i) a Condemnation that involves a taking of a Borrower’s entire title to
its Terminal (or Land with respect thereto), or (ii) a Condemnation that in the
reasonable, good faith judgment of the Borrowers (as evidenced by an Officer’s
Certificate) either (a) renders the Terminal unsuitable for continued use as
commercial property of the type of such Terminal immediately prior to such
Condemnation or (b) is such that restoration of the Terminal to substantially
its condition as existed to immediately prior to such Condemnation would be
impracticable or impossible or would cost in excess of $10,000,000 with respect
to the Terminal owned by Stolthaven New Orleans and $25,000,000 with respect to
the Terminal owned by Stolthaven Houston.


 


13

















 


“Significant Subsidiary
Group” means, at any date, any group of Shipowning Subsidiaries whose
annual revenues in the aggregate exceed Fifty Million Dollars ($50,000,000)


 


“SNSA” means
Stolt-Nielsen S,A., a Luxembourg company.


 


“SNTG” means
Stolt-Nielsen Transportation Group Ltd., a Liberian corporation.


 


“SNTG Bermuda” means
Stolt-Nielsen Transportation Group Ltd. (Bermuda), a Bermuda company.


 


“SNTGI” means Stolt-Nielsen
Transportation Group Inc., a Delaware corporation.


 


“SOSA” means Stolt
Offshore S. A., a Luxembourg company.


 


“Subsidiary” means,
with respect to any Person, (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, limited liability company, association, joint venture
or similar business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary”
shall mean a Subsidiary of SNSA.


 


“Tax” means any fee
(including, but not limited to, any license, filing, recording, documentary or
registration fee), tax (including, but not limited to, any gross receipts,
gross or net income, franchise, doing business, occupational, sales, use,
property, ad valorem, value-added, goods and services, excise, recording,
registration or stamp tax), levy, impost, duty, assessment, withholding or
other charge of any nature whatsoever (together with any penalties, fines and
interest relating thereto and other additions thereto) which may be imposed by
any Governmental Authority or other taxing authority or by any international
taxing or regulatory authority.


 


“Term Loan” means the
term loan facility in an aggregate amount not to exceed One Hundred Fifty
United States Dollars (US$150,000,000) to be made available to the Borrowers
pursuant to Section 3.1(b) of the Agreement


 


“Term Loan Note”
means the promissory note to be executed by the Borrowers to the order of the
Administrative Agent pursuant to Section 4.1(b), to evidence the Term Loan
substantially in the form set out in Exhibit B.


 


“Terminal(s)” means
each of the Borrowers’ chemical storage facilities, including tank farms, drum
storage areas, waste water plant laboratories, waste water treatment plant,
clarifiers and sludge driers, ship docks, truck and railcar loading and
unloading areas and racks and shall include the parcels of real property and
improvements thereon, each of which is more thoroughly described on Appendix B
to the Credit Agreement.


 


“Transaction Costs”
means all costs payable by the Borrowers to the Creditors pursuant to Sections
I 1 and 13 of the Credit Agreement.


 


14

















 


“UCC”
means the Uniform Commercial Code as in effect from time to time in any
jurisdiction whose Law governs the document in which such term is used and/or
rights thereunder.


 


“Web Site” has the
meaning set forth in Section 9.1(f) of the Credit Agreement


 


15

















 


APPENDIX B


 


DESCRIPTION OF TERMINALS


 

















 


Stolthaven Houston Terminal


GF# TNB1609


Mortgagee Policy No. : 44-901-101-     TNB1609


 


DESCRIPTION


 


TRACT I: 14.35 Acres


 


A tract of land in the Richard and Robert Vince
Survey, Abstract No. 76, Harris County, Texas, said tract of land being a part
of a larger tract of land (“the
289 acre tract”) described in a Deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation on February 21, 1975, recorded in Harris County, Texas,
Clerk’s File No. E372837 and in a Deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation on February 21, 1977 recorded in Harris County, Texas,
Clerk’s File No. F051641, and being more particularly described by coodinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, and being more particularly described by metes and bounds on
Exhibit “A” as follows:


 


EXHIBIT “A”


TRACT I


 


ANNEX I
TERMINAL PREMISES


14.35 ACRES


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975, recorded in Harris County, Texas, Clerk’s File No. E372837 and in a deed
to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, and being
more particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 00 deg. 53 min.
15 sec. East, 2989.19 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of said 289 acre tract, said point having State Plane Coordinates
of X equals 3,227,875.87 and Y equals 714,365.04, also being the Northwest
corner of the following described parcel of real estate:


 


THENCE South 75
deg. 57 min. 19 sec. East, a distance of 257.77 feet to an iron rod set for a
corner;


 


THENCE South 10 deg. 45 min. 58 sec. West, a distance
of 180.93 feet to an iron rod set for a corner;


 


THENCE South 74 deg. 01 min. 08 sec. East, a distance
of 104.51 feet to an iron rod set for a corner; 


 


THENCE North 10 deg. 45 min. 58 sec. East, a distance
of 106.17 feet to a point;


 


THENCE South 75 deg. 27 min. 38 sec. East, a distance
of 235.00 feet to an iron rod set for a corner;


 


THENCE South 14 deg. 32 min. 22 sec. West, a distance
of 391.26 feet to an iron rod set for a corner;


 


1

















 


THENCE South 01
deg. 51 min. 20 sec. West, a distance of 356.80 feet to a point;


 


THENCE North 88 deg. 24 min. 13 sec. West, a distance
of 138.23 feet to an iron rod set for a corner;


 


THENCE South 01 deg. 19 min. 00 sec. West, a distance
of 199.94 feet to an iron rod set for a corner;


 


THENCE South 87 deg. 23 min. 19 sec. West, a distance
of 224.60 feet to an iron rod set for a corner;


 


THENCE South 02 deg. 36 min. 41 sec. East, a distance
of 21.96 feet to an iron rod set for a corner;


 


THENCE South 88 deg. 23 min. 19 sec. West, a distance
of 279.29 feet to an iron rod set for a corner;


 


THENCE North 02 deg. 10 min. 43 sec. East, a distance
of 502.86 feet to an iron rod set for a corner;


 


THENCE South 86 deg. 21 min. 31 sec. East, a distance
of 21.73 feet to an iron rod set for a corner;


 


THENCE North 08 deg. 27 min. 32 sec. East, a distance
of 75.28 feet to an iron rod set for a corner;


 


THENCE North 76
deg. 33 min. 52 sec. West, a distance of 21.36 feet to an iron rod set
for a corner;


 


THENCE North 14 deg. 34 min. 59 sec. East, a distance
of 635.07 feet to the POINT OF BEGINNING. The herein described tract contains
14.35 acres of land, more or less.


 


NOTE:  This
Company does not represent that the above acreage or square footage
calculations are correct.


 


2

















 


TRACT II:


 


ANNEX I

TERMINAL PREMISES

5.16 ACRES


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975, recorded in Harris County, Texas, Clerk’s File No. E372837 and in a deed
to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, and being
more particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 12 deg. 31 min.
46 sec. East, 3220.29 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having state plane coordinates of X equals
3,228,528.18 and Y equals 714,210.27, also being the Northwest corner of the
following described parcel of real estate;


 


THENCE South 75 deg. 30 min. 28 sec. East, a distance
of 483.84 feet to an iron rod set for a corner;


 


THENCE South 00 deg. 46 min. 49 sec. West, a distance
of 380.79 feet to an iron rod set for a corner;


 


THENCE North 88 deg. 13 min. 35 sec. West, along a
northern line of Road Premises (Part C), a distance of 543.44 feet to an iron
rod set for a corner;


 


THENCE continuing along said northern line of Road
Premises (Part C), South 13 deg. 58 min. 33 sec. West, a distance of 12.01 feet
to an iron rod set for a corner;


 


THENCE continuing along said northern line of Road
Premises (Part C), North 80 deg. 34 min. 48 sec. West, a distance of 17.31 feet
to a point;


 


THENCE North 14 deg. 23 min. 30 sec. East, a distance
of 194.25 feet to an iron rod set for a corner, also being a property line of
Pipeline Premises (Part A);


 


THENCE continuing along said Pipeline Premises (Part
A) property line, South 77 deg. 10 min. 13 sec. East, a distance of 10.97 feet
to an iron rod set for a corner;


 


THENCE continuing along said Pipeline Premises (Part
A) property line, North 13 deg. 51 min. 59 sec. East, a distance of 94. 80 feet
to an iron rod set for a corner;


 


THENCE continuing along said Pipeline Premises (Part
A) property line, North 74 deg. 12 min. 11 sec. West, a distance of 36.46 feet
to an iron rod set for a corner;


 


3

















 


THENCE continuing along said Pipeline Premises (Part
A) property line North 14 deg. 29 min. 19 sec. East, a distance of 212.94 feet
to the POINT OF BEGINNING. The herein described tract contains 5.16 acres of
land, more or less.


 


NOTE:  This
Company does not represent that the above acreage or square footage calculations are correct.


 


4

















 


TRACT
III:


 


ANNEX I SHIP DOCK

2/3 PREMISES


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a deed to Oiltanking of Texas, Inc.
from Jacintoport Corporation on February 21, 1975, recorded in Harris County,
Texas, Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc.,
from Jacintoport Corporation on February 21, 1977, recorded in Harris County,
Texas, Clerk’s File No. F051641, and being more particularly described by
coordinates, bearings and distances based on The Texas State Plane Coordinate
System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 06 deg. 46 min.
49 sec. East, 4277.07 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of said 289 acre tract, said point having State Plane Coordinates
of X equals 3,228,334.53 and Y equals 713,106.71;


 


THENCE along the South property line of Dock 2/3
Access Premises, North 82 deg. 38 min. 22 sec. East, a distance of 75.52 feet
to a point;


 


THENCE South 02 deg. 05 min. 07 sec. West, a distance
of 1228.21 feet to a point on a
Southerly property line of aforementioned 289 acre tract;


 


THENCE along a curve to the right having a radius of
5349.86 feet and a delta angle of 00 deg. 48 min. 23 sec., an arc distance of
75.31 feet along a Southerly property line of aforementioned 289 acre tract to
a point;


 


THENCE North 02 deg. 05 min. 07 sec. East, a distance
of 1226.81 feet to the POINT OF BEGINNING. The herein described tract contains
2.10 acres of land, more or less.


 


NOTE:  This Company does not represent that the
above acreage or
square footage
calculations are
correct.


 


5

















 


TRACT IV:


 


ANNEX IV SLIP 2/3 PREMISES

SHIP 2 AREA


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975, recorded in Harris County, Texas, Clerk’s File No. E372837 and in a deed
to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, and being
more particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 03 deg. 37 min.
31 sec. East, 4363.35 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having state plane coordinates of X equals
3,228,105.47 and Y equals 712,999,25:


 


THENCE South 87 deg. 54 min. 53 sec. East, a distance
of 225.00 feet to a point on the West property line of Ship Dock 2/3 Premises;


 


THENCE South 02 deg. 05 min. 07 sec. West, along the
West property line of said Ship Dock 2/3 Premises, a distance of 1111.11 feet
to a point on a Southerly property line of aforementioned 289 acre tract;


 


THENCE along said Southerly property line of
aforementioned 289 acre tract along a curve to the right having a radius of
5349.86 feet and a delta angle of 02 deg. 25 min. 36 sec., an arc distance of
226.60 feet to a point;


 


THENCE North 02 deg. 05 min. 07 sec. East, a distance
of 1137.84 feet to the POINT OP BEGINNING, said tract contains 5.81 acres of
land, more or less.


 


NOTE:  This
Company does not represent that the above acreage or square footage
calculations are correct.


 


6

















 


Tract V:  Slip 2/3
Premises Ship 3 Area


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land (“the 289 acre
tract”) described in a deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation on February 21, 1975, recorded in Harris County, Texas, Clerk’s
File No. E372837 and in a deed to Oiltanking of Texas, Inc., from Jacintoport
Corporation on February 21, 1977, recorded in Harris County, Texas, Clerk’s
File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING at a point that
bears South 07 deg. 30 min. 22 sec. East, 4403.25 feet from the Northwest
corner (said Northwest corner having state plane coordinates of X equals
3,227,829.57 and Y equals 717,353.87) of the 289.29 acre tract, said point
having state plane coordinates of X equals 3,228,404.77 and Y equals 712,988.35,
also being on the East line of Ship Dock 2/3 Premises;


 


THENCE South 87 deg. 54 min.
53 sec. East, a distance of 65.00 feet pass the Southern most Southwest corner
of Barge Dock C Premises described in Deed (Waterfront) recorded in the
Official Public Records of Real Property of Harris County, Texas under Clerk’s
File Number L685064 (the “Waterfront Deed”), continuing along the South line of
said Barge Dock C Premises a distance of 150.00 feet pass the Southeast corner
of Barge Dock C Premises same being the Southwest corner of Slip 2/3 Premises
Barge C Area described in the Waterfront Deed and continuing a total distance
of 225.00 feet to a point, said point also being a mid point on the South line
of said Slip 2/3 Premises Barge C Area;


 


THENCE South 02 deg. 05 min.
07 sec. West, a distance of 1060.69 feet to a point on a Southerly property
line of the 289.29 acre tract same being on the Northerly right-of-way line of
the Houston Ship Channel;


 


THENCE along said Southerly
property line of the 289.29 acre tract and the Northerly right-of-way line of
the Houston Ship Channel, along a curve to the right having a radius of 5349.86
feet, a delta angle of 02 deg. 26 min. 50 sec. and a chord bearing of South 82
deg. 08 min. 44 sec. West, an arc distance of 228.51 feet to a point also being
the Southeast corner of Ship Dock 2/3 Premises described in the Waterfront
Deed;


 


THENCE North 02 deg. 05 min.
07 sec. East along the East line of said Ship Dock 2/3 Premises, a distance of
1100.12 feet to the POINT OF BEGINNING. The herein described tract contains
5.58 acres of land, more or less.


 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990 and most recently revised and
updated on August 5, 1992, which survey is set forth on Sheets 5 or 7, and on
Sheet 11 of an 11-page survey prepared by the undersigned and identified as Job
No. 1629 and Drawing Number OTI-1629D-2305.


 


NOTE:  This Company does not represent that the
above acreage or square footage


 


7

















 


calculations are correct.


 


8

















 


TRACT VI:


 


ANNEX III BARGE
DOCK C PREMISES


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land (“the 289 acre
tract”) described in a deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation on February 21, 1975, recorded in Harris County, Texas, Clerk’s
File No. E372837 and in a deed to Oiltanking of Texas, Inc., from Jacintoport
Corporation on February 21, 1977, recorded in Harris County, Texas, Clerk’s
File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING at a point that
bears South 08 deg. 19 min. 20 sec, East, 4118.15 feet from the Northwest
corner (said Northwest corner having state plane coordinates of X equals
3,227,829.57 and Y equals 717,353.87) of said 289 acre tract, said point having
State Plane Coordinates of X equals 3,228,425.65 and Y equals 713,278.96 also
being on the East line of Dock 2/3 Access Premises;


 


THENCE South 88 deg. 05 min.
42 sec. East, a distance of 54.97 feet to a point;


 


THENCE North 02 deg. 05 min.
07 sec. East, a distance of 208.58 feet to a point;


 


THENCE South 87 deg. 54 min.
53 sec. East, a distance of 85.00 feet to a point, being a common (Northeast)
corner of Slip 2/3 Premises Barge C Area;


 


THENCE South 02 deg. 05 min.
07 sec. West, along the West property line of said Barge C Area, a distance of
500.00 feet to a point being a common (Southwest) corner of Slip 2/3 Premises
Barge C Area, and on the North line of Slip 2/3 Premises Ship 3 Area;


 


THENCE North 87 deg. 54 min.
53 sec. West, along the North property line of said Ship 3 Area, a distance of
85.00 feet to a point;


 


THENCE North 02 deg. 05 min.
07 sec. East, a distance of 251.46 feet to a point;


 


THENCE North 88 deg. 05 min.
42 sec. West, a distance of 55.55 feet to a point on the East line of Dock 2/3
Access Premises;


 


THENCE North 02 deg. 55 min.
08 sec. East, along the East line of said Dock 2/3 Access Premises, a distance
of 39.97 feet to the POINT OF BEGINNING. The herein described tract contains 1.03
acres of land, more or less.


 


NOTE:
This Company does not represent that the above acreage or square footage
calculations are correct.


 


9

















 


TRACT
VII:


 


ANNEX IV
SLIP 2/3 PREMISES


BARGE C AREA


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris
County, Texas, said tract of land being a part of a larger tract of land (“the
289 acre tract”) described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975, recorded in Harris County, Texas,
Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation on February 21, 1977, recorded in Harris County, Texas,
Clerk’s File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING at a point that bears South 10 deg. 52 min.
07 sec. East, 3942.02 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of said 289 acre tract, said point having State Plane Coordinates
of X equals 3,228,572.86 and Y equals 713,482.56, also being the Northwest
corner of Barge Dock C Premises;


 


THENCE South 87 deg. 54 min. 53 sec. East, a distance
of 150. 00 feet to a point;


 


THENCE South 02 deg. 05 min. 07 sec. West, a distance
of 500.00 feet to a point;


 


THENCE North 87 deg. 54 min. 53 sec. West, a distance
of 75.00 feet pass the Northeast corner of Slip 2/3 Premises Ship 3 Area,
continuing along said North property line of said Ship 3 Area a total distance
of 150.00 feet to a point, also being the Southeast corner of Barge Dock C
Premises;


 


THENCE North 02 deg. 05 min. 07 sec. East, along the
East property line of said Barge Dock C Premises, a distance of 500.00 feet to
the POINT OF BEGINNING. The herein described tract contains l.72 acres of land,
more or less.


 


NOTE:  This Company does not represent that the
above acreage or square footage calculations are
correct.


 


10

















 


TRACT VIII:


 


ANNEX II DOCK 2/3 ACCESS
PREMISES


 


Field notes of a
tract of land in the Richard and Robert Vince Survey, Abstract No. 76, Harris
County, Texas, said tract of land being a part of a larger tract of land (“the
289 acre tract”) described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975, recorded in Harris County, Texas,
Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation on February 21, 1977, recorded in Harris County, Texas,
Clerk’s File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING at a point that bears South 08 deg. 01 min.
24 sec. East, 3661.13 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having State Plane Coordinates of X equals 3,228.340.57 and Y equals
713,728.58, also being on the East line of Terminal premises 14.35 acre tract
described in Deed (Terminal) dated May 26, 1988 and recorded in the Real
Property Records of Harris County under Harris County, Texas Clerk’s File
Number L085063 (“Terminal Deed”);


 


THENCE South 88 deg. 13 min. 35 sec. East, a distance
of 90.14 feet to a point on the West property line of said Terminal Premises 5.16 acre tract described in the
Terminal Deed;


 


THENCE South 14 deg. 23 min. 30 sec. West, continuing
along said 5.16 acre tract property line, a distance of 9.67 feet to a point,
also being the Southwest corner of aforementioned 5.16 acre tract;


 


THENCE South 80 deg. 34 min. 48 sec. East, continuing
along said 5.16 acre tract property line, a distance of 17.31 feet to a point;


 


THENCE North 13 deg. 58 min. 33 sec. East, continuing
along said 5.16 acre tract property line, a distance of 12.01 feet to a point;


 


THENCE South 88 deg. 13 min. 35 sec. East, continuing
along said 5.16 acre tract
Southerly property line, a distance of 119.69 feet to a point;


 


THENCE South 77 deg. 49 min 27 sec. West, a distance of 79.24 feet to a point;


 


THENCE along a curve to the left having a radius of
58.50 feet and a delta angle of 74 deg. 54 min. 19 sec., an arc distance of 76.48
feet to a point;


 


THENCE South 02 deg. 55 min. 08 sec. West, a distance
of 372.06 feet pass a western corner of Barge Dock C Premises, corner having
State Plane Coordinates of X equals 3,228,425.65 and Y equals 713,278.96, and
continuing a total distance of 412.03 feet to a point, also being the most
Westerly Southwest corner of aforesaid Barge Dock C


 


11

















 


Premises;


 


THENCE South 02 deg. 43 min. 42 sec. West, a distance of 121. 83 feet
to a point;


 


THENCE South 82 deg. 38 min,
22 sec. West, a distance of 8.18 feet pass the Northeast corner of Ship Dock
2/3 Premises, and 83.70 feet pass the Northwest corner of aforementioned Ship
Dock 2/3 Premises, and continuing a total distance of 92.77 feet to a point;


 


THENCE North 03 deg. 16 min.
18 sec. West, a distance of 80.88 feet to a point;


 


THENCE North 02 deg. 23 min.
51 sec. East, a distance of 219. 81 feet to a point, also being Southeasterly
corner of the Terminal Premise 14.35 acre tract;


 


THENCE North 01 deg. 51 min.
20 sec. East, continuing along said Easterly property line of said 14.35 acre
tract, a distance of 322.83 feet to the POINT OF BEGINNING. The herein
described tract contains 1.42 acres of land, more or less.


 


NOTE:  This Company does not represent that the above acreage or square footage calculations
are correct.


 


12

















 


TRACT IX:


 


ANNEX II ROAD PREMISES


(PART A)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract
of land (“the 289 acre tract”) described in a deed to Oiltanking of Texas, Inc.,
from Jacintoport Corporation on February 21, 1975 recorded in Harris County,
Texas, Clerk’s File No. E372837 and in a deed of Oiltanking of Texas, Inc.,
from Jacintoport Corporation on February 21, 1977, recorded in Harris County,
Texas, Clerk’s File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, and being more particularly described by metes and bounds as
follows:


 


COMMENCING at an iron rod found for the Northwest
corner of said 289 acre tract, said Northwest corner having State Plane
Coordinates of X equals 3,227,829.57 and Y equals 717,353.87;


 


THENCE along a North property line of said 289 acre
tract South 75 deg. 29 min. 13 sec. East, a distance of 580.93 feet to an iron
pin found for a property corner;


 


THENCE along a North property line of said 289 acre
tract South 62 deg. 27 min. 44 sec. East, a distance of 167.53 feet to the
POINT OF BEGINNING of the following described tract of land, said point-having
State Plane Coordinates of X equals 3,228,540.51 and Y equals 717,130.83;


 


THENCE South 32 deg. 08 min. 44 sec. West, a distance
of 103.67 feet to a point;


 


THENCE South 14 deg. 41 min. 07 sec. West, a distance
of 394.85 feet to a point;


 


THENCE South 14 deg. 32 min. 01 sec. West, a distance
of 3004.18 feet to a point;


 


THENCE along a curve to the left, having a radius of
308.16 feet and a delta angle of 12 deg. 11 min. 23 sec. an arc distance of
65.56 feet to a point;


 


THENCE South 02 deg. 17 min. 27 sec. West, a distance
of 536.74 feet to a point;


 


THENCE along a curve to the left, having a radius of
68.35 feet and a delta angle of 93 deg. 35 min. 35 sec. an arc distance of
111.65 feet to a point;


 


THENCE South 89 deg. 03 min. 15 sec. East, a distance
of 138,60 feet to a point;


 


THENCE North 87 deg. 15 min. 22 sec. East, a distance
of 453.61 feet to a point;


 


13

















 


THENCE North 82 deg. 38 min. 22 sec. East, a distance of 54.42 feet to
a point;


 


THENCE along a curve to the
left, having a radius of 37.53 feet and a delta angle of 85 deg. 42 min. 01
sec., an arc distance of 56.14 feet to a point;


 


THENCE North 03 deg. 16 min.
18 sec. West, a distance of
42.86 feet to a point; 


 


THENCE North 02 deg. 12 min.
28 sec. East, a distance of 581.90 feet to a point; 


 


THENCE North 14 deg. 32 min.
22 sec. East, a distance of 777.03 feet to a point;


 


THENCE along a curve to the right, having a radius
of 25 feet and a delta angle of 90 deg. 00 min. 00 sec., an arc distance of
39.27 feet to a point;


 


THENCE South 75 deg. 27 min.
38 sec. East, a distance of 18.61 feet to a point;


 


THENCE North 14 deg. 29 min.
15 sec. East, a distance of 23.37 feet to a point; 


 


THENCE North 75 deg. 27 min.
38 sec. West, a distance of 19.39 feet to a point;


 


THENCE along a curve to the
left, having a radius of 48.40 feet and a delta angle of 90 deg. 00 min. 00
sec., an arc distance of 76.03 feet to a point;


 


THENCE South 14 deg. 32 min.
22 sec. West, at a distance of 397. 39 feet pass an iron pin found for the
eastern most Northeast corner of the Terminal Premises 14.35 acre tract, for a
total distance of 788.65 feet to an iron pin;


 


THENCE continuing along an
Easterly property line of said 14.35 acre tract, South 01 deg. 51 min. 20 sec.
West, a distance of 356.80 feet to a point;


 


THENCE South 02 deg. 23 min.
51 sec. West, a distance of 219.81 feet to a point;


 


THENCE South 03 deg. 16 min.
18 sec. East, a distance of 44.31 feet to a point;


 


THENCE along a curve to the
right, having a radius of 13.53 feet and a delta angle of 85 deg. 42 min. 01 sec.
an arc distance of 20.24 feet to a point;


 


THENCE South 82 deg. 38 min.
22 sec. West, a distance of 50.10 feet to a point;


 


THENCE South 87 deg. 15 min.
22 sec. West, a distance of 489.99 feet to a point;


 


THENCE North 89 deg. 03 min.
15 sec. West, a distance of 102.73 feet to a point;


 


THENCE along a curve to the
right, having a radius of 44.35 feet and a delta angle of 93 deg. 35 min. 35
sec. an arc distance of 72.45 feet
to a point;


 


THENCE North 02 deg. 17 min.
27 sec. East, a distance of 536.74 feet to a point;


 


THENCE along a curve to the
right, having a radius of 284.16 feet and a delta angle of 12 deg. 11 min. 23 sec.
an arc distance of 60.46 feet to a point;


 


14

















 


THENCE North 14 deg. 32 min. 01 sec. East, a distance
of 3004.01 feet to a point;


 


THENCE North 24 deg. 40 min. 03 sec. East, a distance
of 162.59 feet to a point;


 


THENCE North 11 deg. 26 min. 02 sec. East, a distance
of 248.80 feet to a point;


 


THENCE North 28 deg. 17 min. 58 sec. East, a distance
of 81.58 feet to a point on North property line of said tract;


 


THENCE along said North property line of the 289 acre
tract North 62 deg. 27 min. 44 sec. West, a distance of 26.29 feet to the POINT
OP BEGINNING. The herein described tract contains 3.70 acres of land, more or
less.


 


SAVE AND EXCEPT the “Road Premises (Part A) (Partial
Abandonment)” as immediately hereafter described


 


ROAD PREMISES (PART A)

(Partial Abandonment)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) a portion of
which 289.29 acre tract is described in a deed to Oiltanking of Texas, Inc.,
from Jacintoport Corporation dated February 21, 1975 recorded in the Official
Public Records of Real Property of Harris County, Texas, Clerk’s File No.
E372837 and a portion of which 289.29 acre tract is described in a deed to
Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21, 1977,
recorded in Harris County, Texas, Clerk’s File No. F051641, and being more
particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, and being more
particularly described by metes and bounds as follows:


 


BEGINNING at a point that bears South 72 deg. 34 min.
55 sec. East, a distance of 745.11 feet from the Northwest corner of the 289
acre tract (said Northwest corner having State Plane Coordinates of X equals
3,227,829.57 and Y equals 717,353.87) and having a State Plane Coordinates X
equals 3,228,540.51 and Y equals 717,130.83, said point being in a Northerly
bound of the 289 acre tract;


 


THENCE South 32 deg. 08 min. 44 sec. West, a distance
of 103.67 feet to a point;


 


THENCE South 14 deg. 41 min. 07 sec. West, a distance
of 394. 85 feet to a point;


 


THENCE South 14 deg. 32 min. 01 sec West, a distance
of 1266.33 feet to a point;


 


THENCE South 76
deg. 26 min. 09 sec. East, a distance of 23.46 feet to a point;


 


THENCE North 14 deg. 32 min. 01 sec. East, a distance
of 1265.95 feet to a point;


 


THENCE North 24 deg. 40 min. 03 sec. East, a distance
of 162.59 feet to a point;


 


THENCE North 11 deg. 26 min. 02 sec. East, a distance
of 248.80 feet to a point;


 


15

















 


THENCE North 28 deg. 17 min. 58 sec. East, a distance
of 81.58 feet to a point on North property line of the 289.29 acre tract;


 


THENCE along said North property line North 62 deg. 27
min. 44 sec. West, a distance of 26.29
feet to the POINT OF BEGINNING, said abandoned easement contains 1.13
acres, more or less.


 


ANNEX II ROAD PREMISES


(PART B)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris
County, Texas, said tract of land being a part of a larger tract of land (“the
289 acre tract”) described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975 recorded in Harris County, Texas,
Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1977 recorded in Harris County, Texas,
Clerk’s File No. F051641, being a centerline of a 25.0 foot wide tract, and
being more particularly described by coordinates, bearings and distances based
on The Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 06 deg. 48 min.
41 sec. East, 4154.64 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of said 289 acre tract, said point having State Plane Coordinates
of X equals 3,228,322.31 and Y equals 713,228.55, also being on a West line of
Road Premises (Part A);


 


THENCE South 87 deg. 23 min. 19 sec. West, a distance
of 134.80 feet to a point, also point being on an Easterly property line of the
Terminal Premises 14.35 acre tract. The herein described tract contains 0.08
acres of land, more or less.


 


ANNEX II ROAD PREMISES


(PART C)


 


Field notes of a tract of land in the Richard and Robert
Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land being a
part of a larger tract of land (“the 289 acre tract”) described in a deed to
Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21, 1975,
recorded in Harris County, Texas, Clerk’s File No. E372837 and in a deed to
Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21, 1977,
recorded in Harris County, Texas, Clerk’s File No. F051641, and being more
particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 06 deg. 43 min.
28 sec. East, a distance of 4196.43 feet from the Northwest corner (said
Northwest corner having State Plane Coordinates of X equals 3,227,829.57 and Y
equals 717,353.87) of said 289 acre tract, said point having State Plane
Coordinates of X equals 3,228,321.20 and Y equals 713,186.22, also being on a
West line of Road Premises (Part A);


 


THENCE South 89 deg. 54 min. 50 sec. East, a distance
of 24.68 feet to a point on the


 


16

















 


East line of Road Premises (Part A);


 


THENCE South 01 deg. 53 min. 39 sec. West, a distance
of 13.34 feet to a point;


 


THENCE South 07 deg. 19 min. 05 sec. East, a distance of 19.37 feet to a point;


 


THENCE South 51 deg. 38 min. 47 sec. East, a distance
of 18.78 feet to a point;


 


THENCE North 86 deg. 31 min. 52 sec. East, a distance
of 21.15 feet to a point;


 


THENCE North 40 deg. 54 min. 07 sec. East, a distance
of 18.01 feet to a point;


 


THENCE North 02 deg. 54 min. 50 sec. East, a distance
of 552.70 feet to a point;


 


THENCE North 33 deg. 16 min. 27 sec. East, a distance
of 8.94 feet to a point on the
South line of Terminal Premises 5.16 acre tract;


 


THENCE along a Southerly property line of the Terminal
Premises 5.16 acre tract, South 80 deg. 34 min. 48 sec. East, a distance of
17.31 feet to a point;


 


THENCE continuing along said Southerly property line
of the Terminal Premises 5.16 acre tract, North 13 deg. 58 min. 33 sec. East, a
distance of 12.01 feet to a point;


 


THENCE continuing along said Southerly property line
of the said Terminal Premises 5.16 acre tract, South 88 deg. 13 min. 35 sec.
East, a distance of 543.44 feet to an iron rod for the Southeast corner of the
said Terminal Premises 5.16 acre tract;


 


THENCE South 01 deg. 46 min. 25 sec. West, a distance
of 24.00 feet to a point;


 


THENCE North 88 deg. 13 min. 35 sec. West, a distance
of 400.00 feet to a point;


 


THENCE North 85 deg. 26 min. 26 sec. West, a distance
of 100.77 feet to a point;


 


THENCE along a curve to the left having a radius of
58.50 feet and a delta angle of 74 deg. 54 min. 19 sec., an arc distance of
76.48 feet to a point;


 


THENCE South 02 deg. 55 min. 08 sec. West, a distance
of 372.06 feet pass a Western corner of Barge Dock C Premises described in Deed
(Waterfront) dated May 26, 1988 and recorded in the Real Property Records of
Harris County, under Harris County Clerk’s File Number(s) L685064 (“Waterfront
Deed”) said point having State Plane Coordinates of X equals 3,228,425.65 and Y
equals 713,278.96, and continuing along the western line a total distance of
412.03 feet to a point, also being the most Westerly Southwest corner of
aforesaid Barge Dock C Premises;


 


THENCE South 02 deg. 43 min. 42 sec. West, a distance
of 121.83 feet to a point;


 


THENCE South 82 deg. 38 min. 22 sec. West, a distance
of 8.18 feet pass the Northeast corner of Ship Dock 2/3 premises described in
the Waterfront Deed and 83.70 feet pass the Northwest corner of aforesaid Ship
Dock 2/3 Premises and continuing a total distance of 92.77 feet to a point;


 


17

















 


THENCE North 03 deg. 16 min. 18 sec. West, a distance
of 80.88 feet to the POINT OF BEGINNING. The herein described tract contains
0.70 acres of land, more or less.


 


ANNEX II ROAD
PREMISES

(PART D)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris
County, Texas, said tract of land being a part of a larger tract of land (“the
289 acre tract”) described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975, recorded in Harris County, Texas,
Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation on February 21, 1977, recorded in Harris County, Texas,
Clerk’s File No. F051641, being a centerline of a 25.0 foot wide tract, and
being more particularly described by coordinates, bearings and distances based
on The Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 02 deg. 48 min.
31 sec. West, 4162.09 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of said 289 acre tract, said point having State Plane Coordinates
of X equals 3,227,625.63 and Y equals 713,196.78, also being on the East line
of Road Premises (Part A);


 


THENCE North 87 deg. 23 min. 19 sec. East, a distance
of 60.65 feet to a point on a Westerly property line of the Terminal Premises
14.35 acre tract. The herein described tract contains 0.03 acres of land, more
or less.


 


ROAD PREMISES
(PART E)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land comprising 289.29 acres (“the 289 acre
tract”) a portion of which
289.29 acre tract is described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975, recorded in the Official Public
Records of Real Property of Harris County, Texas, under Clerk’s File No.
E372837 and a portion of which 289.29 acre tract is described in a deed to
Oiltanking of Texas, Inc., from Jacintoport Corporation dated February 21,
1977, recorded in the Official Public Records of Real Property of Harris
County, Texas, under Clerk’s File No. F051641, and being more particularly
described by coordinates, bearings and distances based on The Texas State Plane
Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 07 deg. 47 min.
55 sec. East, a distance of 1942.71 feet from the Northwest corner (said
Northwest corner having State Plane Coordinates of X equals 3,227,829.57 and Y
equals 717,353.87) of the 289 acre tract, said POINT OF BEGINNING having State
Plane Coordinates of X equals 3,228,090.29 and Y


 


18

















 


equals 715,435.83, also being in an Easterly line of a
tract called “Road Premises” (Part A)” in a Deed to Stolt Terminals (Houston),
Inc., recorded in the Official Public Records of Real Property of Harris
County, Texas, under Clerk’s File Number L685063;


 


THENCE South 76 deg. 26 min. 09 sec. East, a distance
of 729.87 feet to a point;


 


THENCE South 73 deg. 20 min. 01 sec. East, a distance
of 764.05 feet to a point;


 


THENCE along a curve to the left, having a radius of 37.00 feet and a delta of 96 deg. 31 min.
55 sec. a chord bearing of North 58 deg. 24 min. 01 sec. East, an arc length of
62.34 feet to a point;


 


THENCE North 10 deg. 08 min. 03 sec. East, a distance
of 65.80 feet to a point;


 


THENCE North 15 deg. 25 min. 58 sec. West, a distance
of 33.78 feet to a point;


 


THENCE North 10 deg. 24 min. 43 sec. East, a distance
of 187.80 feet to a point;


 


THENCE along a curve to the right, having a radius of
98.00 feet and a delta angle of 45 deg. 08 min. 14 sec., a chord bearing of
North 32 deg. 58 min. 50 sec. East, an arc length of 77.20 feet to a point;


 


THENCE North 55 deg. 32 min. 57 sec. East, a distance
of 171.83 feet to a point in an Easterly line of a 33.947 acre tract of land
described in a deed to Oiltanking Houston, Inc., (formerly called Oiltanking of
Texas, Inc.) recorded in the Official Public Records of Real Property of Harris
County, Texas under Clerk’s File Number L732406;


 


THENCE along said Easterly line South 10 deg. 11 min.
49 sec. West, a distance of 56.33 feet to a point;


 


THENCE South 55 deg. 31 min. 42 sec. West, a distance
of 93.82 feet to a point;


 


THENCE along a curve to the left, having a radius of
42.00 feet and a delta of 45 deg. 02 min. 07 sec., a chord bearing of South 33 deg.
00 min. 38 sec. West, an arc length of 33.01 feet;


 


THENCE South 10 deg. 29 min. 35 sec. West, a distance
of 1353.66 feet to a point;


 


THENCE North 88 deg. 20 min. 34 sec. West, a distance
of 451.58 feet to a point in the Easterly line of a 5.16 acre tract called “Terminal
Premises” described in a deed to Stolt Terminals (Houston), Inc., recorded in
the Official Public Records of Real Property of Harris County, Texas, under
Clerk’s File No. L685063;


 


THENCE along said Easterly line North 01 deg. 40 min.
13 sec. East, a distance of 32.00 feet to an iron rod found for the Northeast
corner of said 5.16 and a
Southerly corner of a 20.00 acre tract called “Option Premises” described in a
deed to Stolt Terminals (Houston), Inc., recorded in the Official Public
Records of Real Property of Harris County, Texas, under Clerk’s File Number
M457165;


 


19

















 


THENCE along a Southerly
line of said 20.00 acre tract, South 88 deg. 20 min. 34 sec. East, a distance
of 416.07 feet to a set iron rod;


 


THENCE North 10 deg. 29 min.
35 sec. East, at 733.07 feet pass an iron rod found for the Easterly corner of
said 20.00 acre tract, at 910.85 feet pass an iron rod found for the Northeast
corner of said 20.00 acre tract and continue to a total distance of 929.55 feet
to a set iron rod;


 


THENCE North 73 deg. 20 min.
01 sec. West, a distance of 825.36 feet to a set iron rod;


 


THENCE South 14 deg. 29 min.
15 sec. West, a distance of 8.04 feet to a point;


 


THENCE North 76 deg. 26 min.
09 sec. West, a distance of 728.69 feet to a point in said Easterly line of
said Road Premises (Part A);


 


THENCE along said Easterly
line North 14 deg. 32 min. 01 sec. East, a distance of 40.00 feet to the POINT
OF BEGINNING. The herein described tract contains 3.22 acres, more or less.


 


ROAD PREMISES
(PART J)


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land comprising
289.29 acres (“the 289 acre tract”) a portion of which 289.29 acres is
described in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
dated February 21, 1975, recorded in the Official Public Records of Real
Property of Harris County, Texas, under Clerk’s File No. E372837 and a portion
of which 289.29 acres is described in a deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation dated February 21, 1977, recorded in the Official
Public Records of Real Property of Harris County, Texas under Clerk’s File No.
F051641, and being more particularly described by coordinates, bearings and
distances based on The Texas State Plane Coordinate System, South Central Zone,
as follows:


 


BEGINNING at a point on the
Northerly line of the Road Premises (Part E), that bears South 10 deg. 53 min.
01 sec. East, 1981.01 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of the 289 acre tract, said point having State Plane Coordinates of X equals
3,228,203.61 and Y equals 715,408.49;


 


THENCE North 14 deg. 41 min.
23 sec. East, a distance of 215.86 feet to a point;


 


THENCE North 60 deg. 08 min.
17 sec. East, a distance of 19.49 feet to a point;


 


THENCE North 15 deg. 08 min.
17 sec. East, a distance of 470.70 feet to a point;


 


THENCE South 75 deg. 26 min.
53 sec. East, a distance of 20.00 feet to a point;


 


THENCE South 15 deg. 08 min.
17 sec. West, a distance of 479.96 feet to a point;


 


20

















 


THENCE South 60 deg. 08 min.
17 sec. West, a distance of
18.29 feet to a point;


 


THENCE South 14 deg. 41 min.
23 sec. West, a distance of 207.09 feet to a point on the Northerly line of
said Road Premises (Part E);


 


THENCE North 76 deg. 26 min. 09 sec. West, along said
Northerly line a distance of 20.00 feet to the POINT OF BEGINNING. The herein
described tract contains 0.32 acres of land.


 


NOTE:  This Company does not represent that the above acreage or square footage
calculations are correct.


 


TRACT
X:


 


ANNEX III RAILROAD
PREMISES


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land (“the 289 acre
tract”) described in a deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation on February 21, 1975, recorded in Harris County, Texas, Clerk’s
File No. E372837 and in a deed to Oiltanking of Texas, Inc., from Jacintoport
Corporation on February 21, 1977, recorded in Harris County, Texas, Clerk’s
File No. F051641, being a centerline of a 20 foot wide tract and being more
particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows:


 


RAILROAD PREMISES
(PART A)


 


COMMENCING at an iron rod
found for the Northwest corner of said 289 acre tract, said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87;


 


THENCE South 75 deg. 29 min.
13 sec. East, a distance of 546.50 feet along the South right-of-way of the
Missouri Pacific Railroad described in Volume 4245, Page 527, of the Deed
Records of Harris County, Texas, also being the North line of said tract, to
THE POINT OF BEGINNING of the herein described tract of land, said point being
in the centerline of an existing railroad spur and having State Plane
Coordinates of X equals 3,228,358.63 and Y equals 717,236.92;


 


THENCE along a curve to the
right, having a radius of 457.62 feet
and a delta angle of 63 deg. 22 min. 28 sec., an arc distance of 554.09 feet to
a point;


 


THENCE South 14 deg. 34 min.
49 sec. West, a distance of 2452.83 feet to a point on the North line of the
Terminal Premises 14.35 acre tract;


 


RAILROAD PREMISES
(PART B)


 


BEGINNING at a point in the centerline of Railroad
Premises (Part A), also being
the


 


21

















 


start of a spur, located by
State Plane Coordinates X equals 3,227,949.32 and Y equals 714,346.64;


 


THENCE along a curve to the
left, having a radius of 514.14 feet and a delta angle of 09 deg. 22 min. 51 sec.,
an arc distance of 84.18 feet to a point of a reverse curve;


 


THENCE along a curve to the
right, having a radius of 1613.20 feet, and a delta angle of 06 deg. 31 min. 13
sec., an arc distance of 183.58 feet to a point;


 


THENCE South 13 deg. 49 min.
56 sec. West, a distance of 78.50 feet to a point on the North line of the
Terminal Premises 14.35 acre tract;


 


RAILROAD PREMISES RAIL SCALE (PART C)


 


BEGINNING at a point that
bears South 30 deg. 02 min. 42 sec. East, 1199.95 feet from the Northeast
corner (said Northwest corner having State Plane Coordinates of X equals
3,227,829.57 and Y equals 717,353.87) of said 289 acre tract, said point having
State Plane Coordinates of X equals 3,228,430.36 and Y equals 716,315.16, also
point being in the centerline of Railroad Premises (Part A);


 


THENCE along a curve to the
left having a radius of 284.61 feet, and a delta angle of 16 deg. 00 min. 00 sec.,
an arc distance of 79.48 feet to a point;


 


THENCE South 01 deg. 25 min.
11 sec. East, a distance of 30.00 feet to a point;


 


THENCE along a curve to the
right having a radius of 284.61 feet, and a delta angle of 16 deg. 00 min. 00 sec., an arc distance of
79.48 feet to a point;


 


THENCE South 14 deg. 34 min.
49 sec. West, a distance of 188.53 feet to a point;


 


THENCE along a curve to the
right having a radius of 284.61 feet, and a delta angle of 16 deg. 00 min. 00 sec.,
an arc distance of 79.48 feet to a point;


 


THENCE South 30 deg. 34 min.
49 sec. West, a distance of 30.00 feet to a point;


 


THENCE along a curve to the
left having a radius of 284.61 feet, and a delta angle of 16 deg. 00 min. 00 sec.,
an arc distance of 79.48 feet to a point, also point also being in the
centerline of Railroad Premises (Part A);


 


The herein described three
tracts contain 1.80 acres of land, more or less.


 


NOTE:  This Company does not represent that the above acreage or square footage
calculations are correct.


 


22

















 


TRACT XI:


 


ANNEX IV UTILITY PREMISES

(PART A)


 


Field notes of a
tract of land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract
of land being a part of a larger tract of land (“the 289 acre tract”) described
in a deed to Oiltanking of Texas, Inc., from Jacintoport Corporation on February
21, 1975, recorded in Harris county, Texas, Clerk’s File No. E372837 and in a
deed to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, being a
centerline of a 3.0 foot wide tract, and being more particularly described by
coordinates, bearings and distances based on The Texas State Plane Coordinate
System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 13 deg. 35 min.
22 sec. West, 2929.36 feet from the Northwest corner having State Plane
Coordinates of X equals 3,227,829.57 and Y equals 717,353.87) of said 289 acre
tract, said point having State Plane Coordinates of X equals 3,227,100.64 and Y
equals 714,511.63, also being a Westerly property line of said 289 acre tract;


 


THENCE South 82 deg. 49 min. 53 sec. East, a distance
of 115.15 feet to a point;


 


THENCE South 10 deg. 51 min. 00 sec. West, a distance
of 282.75 feet to a point;


 


THENCE South 12 deg. 57 min. 07 sec. West, a distance
of 206.40 feet to a point;


 


THENCE South 74 deg. 56 min. 37 sec. East, a distance
of 648.73 feet to a point on the West line of the Terminal Premises 14.35 acre
tract. The herein described tract contains 0.03 acres of land, more or less.


 


ANNEX IV UTILITY PREMISES

(PART B)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No, 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975, recorded in Harris County, Texas, Clerk’s File No, E372837 and in a deed
to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, being a
centerline of a 3.0 foot wide
tract, and being more particularly described by coordinates, bearings and
distances based on The Texas State Plane Coordinate System, South Central Zone,
as follows:


 


BEGINNING at a point that bears South 07 deg. 33 min.
05 sec. West, 104.74 feet from the Northwest corner (said Northwest corner
having State Plan Coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having State Plane Coordinates of X equals
3,227,803,49 and Y equals 717,253.13, also being on a Westerly property line of
said 289 acre tract;


 


THENCE South 75 deg. 54 min. 39 sec. East, a distance
of 30.49 feet to a point;


 


THENCE South 16 deg. 13 min. 08 sec. West, a distance
of 204.41 feet to a point;


 


23

















 


THENCE South 14 deg. 34 min. 16 sec. West, a distance of
1452.05 feet to a point;


 


THENCE South 80 deg. 16 min. 20 sec. East, a distance of
287.70 feet to a point;


 


THENCE South 72 deg. 36 min. 49 sec. East, a distance of 432.02 feet to a point;


 


THENCE South 14 deg. 31 min. 31 sec. West, a distance of
1804.33 feet to a point;


 


THENCE South 02 deg. 26 min. 52 sec. West, a distance of
560.95 feet to a point;


 


THENCE North 88 deg. 05 min. 59 sec. East, a distance of
629.84 feet to a point;


 


THENCE South 88 deg. 43 min. 07 sec. East, a distance of
124.62 feet to a point within the Pipeline Premises (Part A).  The
herein described tract contains 0.13 acres of land, more or less.


 


24

















 


ANNEX IV UTILITY PREMISES

(PART C)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris
County, Texas, said tract of land being a part of a larger tract of land (“the
289 acre tract”) described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975, recorded in Harris County, Texas,
Clerk’s File No, E372837 and in a deed to Oiltanking of Texas, Inc., from Jacintoport
Corporation on February 21, 1977, recorded in Harris County, Texas, Clerk’s
File No, F051641, being a centerline of an 8.0 foot wide tract, and being more
particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows;


 


BEGINNING at a point in the West property line of
Houston Light and Power Company’s ground easement (F.C. No. ###-##-####) that
bears South 21 deg. 34 min. 28 sec. East, 53.47 feet from the Northwest, corner
(said Northwest corner having State Plane Coordinates of X equals 3,227,829.57
and Y equals 717,353.87) of said 289 acre tract, said point having State Plane
Coordinates of X equals 3,227,849.23 and Y equals 717,304.15;


 


THENCE North 74 deg. 53 min. 07 sec. West, a distance
of 22.98 feet to a point;


 


THENCE South 14 deg. 12 min. 26 sec. West, a distance
of 1613.43 feet to a point;


 


THENCE South 75 deg. 21 min. 28 sec. East, a distance
of 772.19 feet to a point;


 


THENCE South 14 deg. 34 min. 59 sec. West, a distance
of 1901.62 feet to a point;


 


THENCE South 02 deg. 10 min. 43 sec West, a distance
of 556.90 feet to a point;


 


THENCE North 87 deg. 57 min. 51 sec. East, a distance
of 599.86 feet to a point;


 


THENCE North 03 deg. 22 min. 57 sec. West, a distance
of 143.44 feet to a point;


 


THENCE North 88 deg 28 min. 06 sec. East, a distance
of 123.17 feet to a point;


 


THENCE North 01 deg. 52 min. 06 sec. East, a distance
of 399.59 feet to a point,


 


THENCE North 10 deg. 44 min. 01 sec. East, a distance
of 98.85 feet to a point;


 


THENCE North 14 deg. 29 min. 18 sec. East, a distance
of 369.17 feet to a point;


 


THENCE North 75 deg. 04 min. 42 sec. West, a distance
of 82.40 feet to a point;


 


THENCE North 14 deg. 15 min. 00 sec. East, a distance
of 103.43 feet to a point;


 


THENCE North 16 deg. 15 min. 07 sec. East, a distance
of 42.68 feet to a point, said point being South 12 deg. 03 min. 40 sec. East,
3083.77 feet from the Northwest corner of aforesaid 289 acre tract of land. The
herein described tract contains 1.26


 


25

















 


acres of land, more or less.


 


26

















 


ANNEX IV UTILITY
PREMISES

(PART D)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris
County, Texas, said tract of land being a part of a larger tract of land (“the
289 acre tract”) described in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1975, recorded in Harris County, Texas,
Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc., from
Jacintoport Corporation on February 21, 1977, recorded in Harris County, Texas,
Clerk’s File No. F051641, being a centerline of a 2.0 foot wide tract, and
being more particularly described by coordinates, bearings and distances based
on The Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 12 deg. 27 min.
47 sec. East, 3722.04 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having State Plane Coordinates of X equals
3,228,632.82 and Y equals 713,719.54 also being a Southerly property line of
Terminal Premises 5.16 acre tract;


 


THENCE South 00 deg. 00 min. 00 sec. East, a distance
of 239.16 feet to a point on the North property line of Slip 2/3 Premises Barge
C Area described in the Waterfront Deed. The herein described tract contains
0.01 acres of land, more or less.


 


NOTE:  This Company does not represent that the above acreage or square footage calculations are correct.


 


TRACT XII:


 


ANNEX V STORM
DRAINAGE PREMISES

(PART B)


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975, recorded in Harris County, Texas, Clerk’s File No. E372837 and in a deed
to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, being a
centerline of a 25 foot wide tract, and being more particularly described by
coordinates, bearings and distances based on The Texas State Plane Coordinate System,
South Central Zone, as follows:


 


BEGINNING at a point that bears South 12 deg. 43 min.
38 sec. East, 3225.99 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 285 acre tract, said point having State Plane Coordinates of X equals
3,228,540.28 and Y equals 714,207.14, also being on the North line of Terminal
Premises 5.16 acre tract;


 


27

















 


THENCE North 14 deg. 29 min. 15 sec. East, a distance
of 1031.95 feet to a point having State Plane coordinates of X equals
3,228,798.44 and Y equals 715,205.29. The herein described tract contains 0.59
acres of land, more or less.


 


STORM DRAINAGE
PREMISES

(PART C)

CENTERLINE DESCRIPTION


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land comprising 289.29 acres (“the 289 acre
tract”) a portion of which 283.29 acre tract is described in a deed to
Oiltanking of Texas, Inc., from Jacintoport Corporation dated February 21, 1975
recorded in the Official Public Records of Real Property of Harris County,
Texas, Clerk’s File No. E372837 and a portion of which 289.29 acre tract is
described in a deed to Oiltanking of Texas, Inc., from Jacintoport Corporation
dated February 21, 1977, recorded in the Official Public Records of Real
Property of Harris County, Texas, under Clerk’s File No. F051641, being a
centerline of a tract with various widths and being more particularly described
by coordinates, bearings and distances based on The Texas State Plane
Coordinate System, South Central Zone, and being more particularly described by
metes and bounds as follows:


 


BEGINNING at a point that bears South 24 deg. 16 min.
56 sec. East, 2356.02 feet from the Northwest corner (said Northwest corner
having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of the 289 acre tract, said point having State Plane Coordinates of
X equals 3,228,803.09 and Y equals 715,224.30;


 


THENCE North 14 deg. 29 min.
15 sec. East, a distance of 78.16 feet to a point, said easement extending 12.5
feet either side of said line;


 


THENCE South 73 deg. 08 min. 31 sec. East, a distance
of 865.98 feet to a point, said easement extending twenty (20) feet either side
of said line;


 


THENCE South 10 deg. 33 min. 55 sec. West, a distance
of 279. 88 feet to a point, said easement extending twenty (20) feet either
side of said line;


 


THENCE South 07 deg. 15 min. 57 sec. West, a distance
of 772.15 feet to a point, said easement extending thirty (30) feet either side
of said line;


 


THENCE South 01 deg. 57 min. 26 sec. West, a distance
of 1665.76 feet to a point, said easement extending forty (40) feet either side
of said line;


 


THENCE South 09 deg. 58 min. 04 sec. East, a distance
of 60.37 feet to a point, said easement extending forty (40) feet either side
of said line;


 


THENCE South 70 deg. 32 min. 51 sec. West, a distance
of 34.09 feet to a point, said easement extending forty (40) feet either side
of said line;


 


THENCE South 19 deg. 17 min. 56 sec. East, a distance
of 179.97 feet to a point, said easement extending forty (40) feet either side
of said line; also being a point on a


 


28

















 


Southerly property line of the 289 acre tract. The
herein described tract contains 5.72 acres of land.


 


NOTE:  This
Company does not represent that the above
acreage or square footage calculations are correct.


 


TRACT XIII:


 


ANNEX VI PIPELINE
PREMISES

(PART A)


 


Field notes of a tract, of
land in the Richard and Robert Vines Surrey, Abstract No. 76, Harris County,
Texas, said tract, of land being a part of a larger tract of land (“the 289
acre tract”) described in a deed to Oiltanking of Texas, Inc, from Jacintoport
Corporation dated February 21, 1975 recorded in the Official Public Records of
Real Property of Harris County, Texas, Clerk’s File No. E372837 in a deed to
Oiltanking of Texas, Inc., from Jacintoport Corporation dated February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, and being
more particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, and being more
particularly described by metes and bounds as follows:


 


BEGINNING at a point that
bears South 07 deg. 34 min. 45 sec. East, 4276.88 feet from the Northwest
corner (said Northwest corner having State Plane Coordinates of X equals
3,227,829.57 and Y equals 717,353.37) of a 289 acre tract, said point having
State Plane Coordinates of X equals 3,228,393.94 and Y equals 713,114.26;


 


THENCE North 02 deg. 09 min.
13 sec. East, a distance of 42.64 feet to a point;


 


THENCE North 03 deg. 01 min.
56 sec. East, a distance of 40.95 feet to a point;


 


THENCE North 87 deg. 42 min.
53 sec. West, a distance of 13.58 feet to a point;


 


THENCE North 03 deg. 20 min.
34 sec. East, a distance of 229.48 feet to a point;


 


THENCE North 14 deg. 10 min.
19 sec. East, a distance of 20.12 feet to a point;


 


THENCE North 00 deg. 09 min.
43 sec. West, a distance of 304.01 feet to a point;


 


THENCE North 14 deg. 47 min.
02 sec. East, a distance of 168.00 feet to a point;


 


THENCE South 74 deg. 41 min.
31 sec. East, a distance of 33.58 feet to a point, also being the Southerly
Southwest, corner of Terminal Premises 5.16 acre tract;


 


THENCE South 77 deg. 10 min.
13 sec. East, continuing along said property line of said 5.16 acre tract, a
distance of 10.97 feet to a point;


 


THENCE North 13 deg. 51 min.
59 sec. East, continuing along said property line of said 5.16 acre tract, a
distance of 94.80 feet to a point;


 


THENCE North 74 deg. 12 min.
11 sec. West, continuing along said property line of


 


29

















 


said 5.16 acre tract, a
distance of 36.46 feet to a point;


 


THENCE North 14 deg. 29 min.
19 sec. East, along the West line of said 5.16 acre tract distance of 212.94
feet pass the Northwest corner of said 5.16 acre tract, and continuing a total
distance of 502.56 feet to a point;


 


THENCE North 75 deg. 05 min.
08 sec. West, a distance of 43.66 feet to a point;


 


THENCE South 14 deg. 32 min.
22 sec. West, a distance of 386.09 feet to a point;


 


THENCE North 74 deg. 34 min.
57 sec. West, a distance of 24.20 feet to a point on the Easterly property line
of Terminal Premises 14.35 acre tract;


 


THENCE South 14 deg. 32 min.
22 sec. West, continuing along said property line, a distance of 5.80 feet to a
point;


 


THENCE South 74 deg. 34 min.
20 sec. East, a distance of 24.20 feet to a point;


 


THENCE South 14 deg. 32 min.
22 sec. West, a distance of 38.84 feet to a point;


 


THENCE North 74 deg. 44 min.
36 sec. West, a distance of 24.20 feet to a point on an Easterly property line
of aforementioned 14.35 acre tract;


 


THENCE South 14 deg. 32 min.
22 sec. West, continuing along said property line, a distance of 44.11 feet to
a point;


 


THENCE South 69 deg. 43 min.
15 sec. East, a distance of 24.21 feet to a point;


 


THENCE South 14 deg. 36 min.
18 sec. West, a distance of 281.51 feet to a point;


 


THENCE South 02 deg. 09 min.
57 sec. West, a distance of 309.30 feet to a point;


 


THENCE North 75 deg. 43 min.
10 sec. West, a distance of 24.65 feet to a point on an Easterly property line
of aforementioned 14.35 acre tract;


 


THENCE South 01 deg. 51 min.
20 sec. West, continuing along said property line, a distance of 20.18 feet to
a point;


 


THENCE South 75 deg. 22 min.
13 sec. East, a distance of 24.57 feet to a point;


 


THENCE South 02 deg. 09 min. 57 sec. West, a distance
of 252.39 feet to a point;


 


THENCE South 03 deg. 15 min. 42 sec. East, a distance
of 12.35 feet to a point;


 


THENCE South 88 deg. 18 min.
55 sec. East, a distance of 36.76 feet to a point;


 


THENCE South 04 deg. 28 min.
35 sec. East, a distance of 15.71 feet to a point;


 


THENCE South 02 deg. 27 min.
24 sec. West, a distance of 44.33 feet to a point;


 


THENCE North 82 deg. 39 min. 12 sec. East, a distance
of 11.38 feet to the POINT OF


 


30

















 


BEGINNING. The herein described tract contains 1.43 acres of land, more
or less.


 


NOTE: This Company does not represent that the above acreage
or square
footage calculations are
correct.


 


ANNEX VI PIPELINE PREMISES


(PART B)


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land (“the 289 acre
tract”) described in a deed to Oiltanking of Texas, Inc., from Jacintoport
Corporation dated February 21, 1975 recorded in Harris County, Texas, Clerk’s
File No. E372837 and in a deed to Oiltanking of Texas, Inc., from Jacintoport
Corporation on February 21, 1977, recorded in Harris County, Texas, Clerk’s
File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, and being more particularly described by metes and bounds as
follows:


 


BEGINNING at a point that
bears South 10 deg. 45 min. 25 sec. East, a distance of 3270.06 feet from the
Northwest corner (said Northwest corner having State Plane Coordinates of X
equals 3,227,829.57 and Y equals 717,353.87) of said 289 acre tract, said point
having State Plane Coordinates of X equals 3,228,439.91 and Y equals
714,141.27, also being the most Northeasterly corner of the Terminal Premises
14.35 acre tract;


 


THENCE along a Northerly
property line of said 14.35 acre tract, North 75 deg. 27 min. 38 sec. West, a
distance of 235.00 feet to a point, said point being a Northeasterly interior
corner of said 14.35 acre tract;


 


THENCE North 10 deg. 45 min.
58 sec. East, a distance of 15.00 feet to a point;


 


THENCE South 75 deg. 27 min.
38 sec. East, a distance of 235.99 feet to a point, said point being on a
Westerly line of Road Premises (Part A);


 


THENCE along said Westerly
line, South 14 deg. 32 min. 22 sec. West, a distance of 14.98 feet to the POINT
OF BEGINNING. The herein described tract contains 0.08 acres of land, more or
less.


 


NOTE: This Company does not represent that the above acreage or square footage
calculations are correct.


 


PIPELINE PREMISES


(Part C)


 


Fields notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract comprising 289.29
acres (“the 289 acre tract”) a portion of which 289.29 acre tract is described
in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation dated
February 21, 1975 recorded in the Official Public Records of Real Property of
Harris County, Texas under Clerk’s File No. E372837 and a portion of which 289.29


 


31

















 


acre tract is described in a deed to Oiltanking Texas,
Inc. from Jacintoport Corporation dated February 21, 1977 recorded in the
Official Records of Real Property of Harris County, Texas under Clerk’s File
No. F051641, and being more particularly described by coordinate bearings and
distances based on the Texas State Plane Coordinate System, South Central Zone,
as follows:


 


BEGINNING at a point that bears South 15 deg. 04 min.
39 sec. East, a distance of 2965.27 feet from the Northwest corner of the 289
acre tract (said Northwest corner having state plane coordinates X equals
3,227,829.57 and Y equals 717,353.87) and having state plane coordinates of X
equals 228,600.63 and Y equals 714,490.68, said point also being on the West
line of a 20 acre tract of land called the “Option Premises” in a deed to Stolt
Terminals (Houston) Inc. recorded in the Official Public Records of Real
Property of Harris County, Texas under Clerk’s File Number M457165, said point
also being the Northeast corner of a 1.43 acre tract of land called “Pipeline
Premises (Part A)” in a deed to Stolt Terminals (Houston) Inc. recorded in the
Official Public Records of Real Property of Harris County, Texas under Clerk’s
File Number L685063;


 


THENCE North 14 deg. 29 min. 15 sec. East, along the
West line of said 20 acre tract a distance of 683.55 feet to a point in the
Southerly line of a tract of land called “Railroad Spur Premises” in a deed to
Stolt Terminals (Houston) Inc. recorded in the Official Public Records of Real
Property of Harris County, Texas under Clerk’s File Number M-457165;


 


THENCE, along said Southerly line of said “Railroad
Spur Premises”, North 73 deg. 24 min. 03 sec. West, a distance of 43.07 feet to
a point;


 


THENCE South 14 deg. 32 min. 22 sec. West, a distance
of 684.81 feet to a point;


 


THENCE, South 75 deg. 05 min. 08 sec. East, a distance
of 43.66 feet to the POINT OF BEGINNING. The herein described tract contains 0.68
acres, more or less.


 


NOTE:  This
Company does not represent that the above acreage or square footage
calculations are correct.


 


32

















 


TRACT XIV:


 


ANNEX VII

NORTH DIKE PREMISES


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc., from Jacintoport Corporation dated February
21, 1975 recorded in Harris County, Texas, Clerk’s File No. E372837 and in a
deed to Oiltanking of Texas, Inc., from Jacintoport Corporation on February 21,
1977, recorded in Harris County, Texas, Clerk’s File No. F051641, being a
centerline of a tract with various widths, and being more particularly
described by coordinates, bearings and distances based on The Texas State Plane
Coordinate System, South Central Zone, and being more particularly described by
metes and bounds as follows:


 


BEGINNING at a point that bears South 04 deg. 38 min.
55 sec. East, a distance of 3239.79 feet from the Northwest corner (said
Northwest corner having State Plane Coordinates of X equals 3,227,829.57 and Y
equals 717,353.87) of said 289 acre tract, said point having State Plane
Coordinates of X equals 3,228,092.13 and Y equals 714,124.74, also being a
North interior corner of the Terminal Premises 14.35 acre tract;


 


THENCE North 10 deg. 45 min. 58 sec. East, along the
centerline of a 15.0 foot wide tract a distance of 203.03 feet to a point, also
being the western most East line of aforesaid 14.35 acre tract;


 


THENCE South 76 deg. 01 min. 44 sec. East, along the
centerline of a 20.0 foot wide tract a distance of 305.87 feet to a point;


 


THENCE South 14 deg. 32 min. 19 sec. West, along the
centerline of a 20.0 foot wide tract a distance of 102.31 feet to a point on
the central most northern property line of aforesaid 14.35 acre tract. The
herein described tract contains 0.26 acres of land, more or less.


 


NOTE:  This Company does not represent that the
above acreage or square footage calculations are correct.


 


33

















 


TRACT XV - A:


 


MPR TRACT


 


The appurtenant non-exclusive right to construct, use
and maintain across, over or under that portion of the Missouri-Pacific
Railroad right-of-way (The “MPR Tract”) shown on Exhibit “A” of that certain
Contract for Purchase dated September 30, 1964, executed by and between the
United States of America and Houston Channel Industrial Development, Inc.,
recorded in Volume 5679, Pages 176-227, inclusive, of the Deed Records of
Harris County, Texas, located immediately North of and adjacent to the most
Northerly boundary line of the Retained Premises as defined in Part V of the
Deed (Terminal) dated May 26, 1988 from Oiltanking of Texas, Inc. (“OTI”),
Grantor, to Stolt Terminals (Houston), Inc., Grantee, filed for record in the
Real Property of Harris County Clerk’s File No. L685063, roads, electrical
transmission, telephone, telegraph, water, gas, and sewer lines, lines for
other materials and other facilities in keeping with customary conditions set
forth in the deed from the United States of America to Missouri-Pacific
Railroad Company dated December 20, 1960, recorded in Volume 4245, Page 527, of
the Deed Records of Harris County, Texas, same being further described in deeds
to Oiltanking of Texas, Inc. filed for record in the office of the County Clerk
of Harris County, Texas, under County Clerk’s File Nos. E372837 and F051641.


 


TRACT XV - B:


 


ANNEX XVIB

TEN FOOT STRIP


 


The appurtenant non-exclusive easement and
right-of-way to use that portion of the following described tract of land:


 


A strip of land approximately ten feet (10’) in width
lying between the northern boundary line of the MPR tract and the southern
boundary lines of Jacintoport Boulevard and Peninsula Boulevard as described in
right-of-way deed from the United States of America and Jacintoport Corporation
to the County of Harris dated December 11, 1968, recorded in Volume 7546, Page
7, of the Deed Records of Harris County, Texas (The “Ten Foot Strip”);
reasonably necessary for purposes of ingress and egress to and from Terminal
Premises, as set forth in Deed filed for record in the Office of the County
Clerk of Harris County, Texas, under File Nos. L685063 and L685064.


 


Tract XVI:


 


The following described two (2) tracts, Option
Premises and Option Premises Addition:


 


OPTION PREMISES


 


Tract of land containing approximately 20.00 acres,
more or less, SAVE AND EXCEPT 0.35 acres (Option Premises Deletion), out of the
Richard and Robert Vince Survey, Abstract Number 76, Harris County,
Texas, said premises being out of a tract


 


34

















 


 


described in that certain Contract for Purchase dated
September 30, 1964, and executed by and between the United States of America
and Houston Channel Industrial Development, Inc., recorded in Volume 5679 at
Pages 176-227, inclusive, of the Deed Records of Harris County, Texas
(hereinafter “Said Contract”), with the Option Premises being more particularly
described as follows:


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975 recorded in Harris County, Texas, Clerk’s File E372837 and in a deed to
Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21, 1977
recorded in Harris County, Texas, Clerk’s File F051641, and being more
particularly described by coordinates, bearings and distance based on The State
Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 12 deg. 31 min.
46 sec. East, 3220.29 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of said 289 acre tract, said point having state plane coordinates
of X equals 3,228,528.18 and Y equals 714,210.27, also being the Northwest
corner of the Terminal Premises 5.16 acre tract, described in Deed (Terminal)
dated May 26, 1988 and recorded in the Real Property Records of Harris County
under Harris County, Texas Clerk’s File Number L685063 (“Terminal Deed”);


 


THENCE, North 14 deg. 29 min.
15 sec. East, a distance of 1032.43 feet to an iron rod set for a
corner;


 


THENCE, South 73 deg. 20 min. 01 sec. East, a distance
of 826.66 feet to an iron rod set for a corner;


 


THENCE, South 10 deg. 29 min. 35 sec. West, along the
West line of an Access Road Premises (Part A) and (Part B), a distance of of
177.75 feet to an iron rod set for a corner;


 


THENCE, continuing along said Access Road Premises
(Part B) South 07 deg. 11 min. 37 sec. West, a distance of 727.81 feet to an
iron rod set for a corner;


 


THENCE North 88 deg. 20 min. 34 sec. West, a distance
of 458.45 feet to an iron rod set for a corner also being the Northeast corner
of the aforesaid 5.16 acre tract;


 


THENCE, North 75 deg. 30 min. 28 sec. West, along the
entire North line of aforesaid 5.16 acre tract a distance of 483.84 feet to the
POINT OF BEGINNING. The herein described tract contains 20.00 acres of land,
more or less.


 


SAVE AND EXCEPT the following described tract:


 


OPTION PREMISES DELETION


 


Field notes of a
tract of land in the Richard and Robert Vince Survey, Abstract No.


 


35

















 


76, Harris County,
Texas, said tract of land being a part of a 20 acre tract described in a Deed
to Stolt Terminals (Houston) Inc. from Oiltanking Houston Inc. dated December
19, 1989, recorded in the Official Public Records of Real Property of Harris County,
Texas under Clerk’s File Number M457165, and being more particularly described
by coordinates, bearings and distances based on the Texas State Plane
Coordinate System, South Central Zone, as follows:


 


BEGINNING at an iron rod found that bears South 25 deg.
47 min. 04 sec. East, a distance of 3639.04 feet from the Northwest corner
(said Northwest corner having state plane coordinates of X equals 3,227,829.57
and Y equals 717,353.87) of the 289 acre tract, said point having state plane
coordinates X equals 3,229,412.51 and Y equals 714,077.15 and being in the most
Easterly South line of said 20 acre tract;


 


THENCE, along said Southerly line South 88 deg. 20 min.
34 sec. East, a distance of 42.39 feet to a point in Road Premises (Part E),
being the Southeast corner of said 20 acre tract;


 


THENCE, along the Easterly line of said 20 acre tract
North 07 deg. 11 min. 37 sec. East, a distance of 727.77 feet to a set iron rod;


 


THENCE, South 10 deg. 29 min. 35 sec. West, a distance
of 733.07 feet to the POINT OF BEGINNING. The herein described tract contains
0.35 acres, more or less.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are correct.


 


OPTION PREMISES
ADDITION


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land comprising 289.29 acres (“the 289 acre
tract”) a portion of which 289.29 acre tract is described in a Deed to
Oiltanking of Texas, Inc. from Jacintoport Corporation dated February 21, 1975
recorded in the Official Public Records of Real Property of Harris County,
Texas under Clerk’s File Number E372837 and a portion of which 289.29 acre
tract is described in a Deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation dated February 21, 1977 recorded in the Official Public Records of
Real Property of Harris County, Texas under Clerk’s File Number F051641, and
being more particularly described by coordinates, bearings and distances based
on the Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a set iron rod that bears South 24 deg.
03 min. 05 sec. East, a distance of 2347.86 feet from the Northwest corner
(said Northwest corner having state plane coordinates of X equals 3,227,829.57
and Y equals 717,353.87) of the 289 acre tract, said point having state plane
coordinates of X equals 3,228,786.46 and Y equals 715,209.87, also being the
Northwest corner of a 20 acre tract of land called “Option Premises” in a Deed
to Stolt Terminals (Houston) Inc. recorded in the Official Public Records of
Real Property of Harris County, Texas under Clerk’s File Number M457165;


 


36

















 


THENCE, along the North line of said 20 acre tract,
South 73 deg. 20 min. 01 sec. East, a distance of 826.66 feet to a set iron rod,
being the Northeast corner of said 20 acre tract;


 


THENCE, North 10 deg. 29 min. 35 sec. East, a distance
of 18.70 feet to a set iron rod;


 


THENCE, North 73 deg. 20 min. 01 sec. West, a distance
of 825.36 feet to a set iron rod;


 


THENCE, South 14 deg. 29 min. 15 sec. West, a distance
of 18.61 feet to the POINT OF BEGINNING. The herein described tract contains
0.35 acres, more or less.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are
correct.


 


37

















 


Tract XVII:


 


ANNEX I The Premises


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975 recorded in Harris County, Texas, Clerk’s File E372837 and in a deed to
Oiltanking of Texas, Inc. from Janintoport Corporation on February 21, 1977 recorded in Harris County, Texas,
Clerk’s File No. F051641, and being more particularly described by Plane
Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 07 deg. 12 min.
45 sec. West, 3014.63 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having state plane coordinates of X equals
3,227,447.03 and Y equals 714,364.13, also being the Northwest corner of the
following described parcel of real estate:


 


THENCE, South 75 deg. 34 min. 58 sec. East, a distance
of 331.54 feet to a point on the Westerly line of Road Premises (Part A)
described in the Deed (Terminal) dated May 26, 1988 from Oiltanking of Texas,
Inc. to Stolt Terminals (Houston) Inc. and recorded under County, Clerk’s File
Number L-685063 in the Real Property Records of Harris County, Texas (“Terminal
Deed”);


 


THENCE, South 14 deg. 25 min. 01 sec. West along said
Westerly line of Road Premises (Part A), a distance of 227.35 feet to a point;


 


THENCE, South 38 deg. 52 min. 03 sec. West, a distance
of 45.59 feet to a point on a curve to the right;


 


THENCE, along a curve to the right (along the
Northerly edge of an existing road) having a radius of 216.82 feet, a delta
angle of 66 deg. 14 min. 42 sec., an arc distance of 250.69 feet to a point;


 


THENCE, North 75 deg. 06 min. 31 sec. West, a distance
of 116.38 feet (along the Northerly edge of an existing road) to a point;


 


THENCE, North 14 deg. 53 min. 02 sec. East a distance
of 395.73 feet to a point for the said Northwest corner and the PLACE OF
BEGINNING. The herein described tract of land contains 2.80 acres of land, more
or less.


 


NOTE: This Company does not represent that the above acreage or square footage calculations are correct.


 


38

















 


The Premises
Addition


 


Field notes of a tract of land in the Richard and Robert
Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land being a
part of a larger tract comprising 289.29 acres (“the 289 acre tract”) a portion
of which 289.29 acre tract is described in a deed
to Oiltanking of Texas, Inc. from Jacintoport Corporation dated February 21,1975 recorded in the Official Public
Records of Real Property of Harris County, Texas, under Clerk’s File E372837
and a portion of which 289.29 acre tract is described in a deed to Oiltanking
of Texas, Inc. from Jacintoport Corporation dated February 21,1977 recorded in
the Official Public Records of Real Property of Harris County, Texas, under
Clerk’s File No F051641, and being more particularly described by coordinates,
bearings and distances based on the Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING at a 1/2 inch iron pin found that bears
South 02 deg. 04 min. 03 sec. West, a distance of 3297.25 feet from the
Northwest corner of the 289 acre tract (said Northwest corner having state
plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87) and having
state plane coordinates of X equals 3,227,710.61 and Y equals 714,058.77, said
point also being on the West line of a 3.70 acre tract called “Road Premises
(Part A)” in a deed to Stolt Terminals (Houston) Inc. recorded in the Official
Public Records of Real Property of Harris County, Texas under Clerk’s File
Number L685063;


 


THENCE, South 38 deg. 52 min. 03 sec. West, along the
Southeasterly line of a 2.80 acre tract called “The Premises” in a deed to
Stolt Terminals (Houston) Inc. recorded in the Official Public Records of Real
Property of Harris County, Texas under Clerk’s File Number M048685, a distance
of 42.49 feet to a set iron rod;


 


THENCE continuing along the Southeasterly line of said
2.80 acre tract along a curve to the right, having a radius of 216.82 feet, a
delta of 66 deg. 14 min. 42 sec., a chord bearing of South 71 deg. 46 min. 12
sec. West, an arc length of 250.69 feet to a set iron rod;


 


THENCE, South 75 deg. 06 min. 31 sec. East, a distance
of 216.77 feet to an iron rod set on the West line of said “Road Premises (Part
A)”;


 


THENCE, North 14 deg. 32 min. 01 sec. East, along the
West line of said “Road Premises (Part A)”, a distance of 168.30 feet to the
POINT OF BEGINNING. The herein described tract contains 0.2260 acres, more or
less.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are correct.


 


39

















 


Tract XVIII:


 


(Railroad Strip
Premises)


 


Terminal Premises


0.25 Acre


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”)
described in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
on February 21, 1975 recorded in Harris County, Texas, Clerk’s File No. E372837
and in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on
February 21, 1977 recorded in Harris County, Texas, Clerk’s File No. F051641,
and being more particularly described by coordinates, bearings and distances
based on The Texas State Plane Coordinate System, South Central Zone, as
follows:


 


BEGINNING at a point that bears South 00 deg. 53 min.
15 sec. East, 2989.19 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having State Plane Coordinates of X equals
3,227,875.87 and Y equals 714,365.04, also being the Northwest corner of
terminal premises 14.35 acre tract and the Southwest corner of the following
described parcel of real estate;


 


THENCE, North 14 deg. 34 min. 59 sec. East, a distance
of 317.36 feet to an iron rod set for a corner;


 


THENCE, South 75 deg. 26 min. 26 sec. East, a distance
of 35.05 feet to an iron rod set for a corner, and to a point on the West lien
of Railroad Premises (Part A);


 


THENCE, South 14 deg. 34 min. 49 sec. West, along with
and abutted to the said West line of Railroad Premises (Part A), a distance of
317.05 feet to an iron rod set on the said North line of Terminal Premises 14.35
acre tract;


 


THENCE, North 75 deg. 57 min. 19 sec. West, along with
and abutted to the said North line of Terminal Premises 14.35 acre tract, a
distance of 35.06 feet to the POINT OF BEGINNING. The herein described tract
contains 0.25 acres of land, more or less.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are correct.


 


40

















 


Tract XIX:


 


Road Premises (Part F)


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract comprising 289.29
acres of land (“the 289 acre tract”), a portion of which 289.29 acre tract is
described in a deed to Oiltanking of Texas Inc. from Jacintoport Corporation
dated February 21, 1975 recorded in the Official Public Records of Real
Property of Harris County, Texas under Clerk’s File No. E372837 and a portion
of which 289.29 acre tract is described in a deed to Oiltanking of Texas, Inc.
from Jacintoport Corporation dated February 21, 1977 recorded in the Official
Public Records of Real Property of Harris County, Texas under Clerk’s File No.
F051641, and being more particularly described by coordinates, bearings and
distances based on the Texas State Plane Coordinate System, South Central Zone,
as follows:


 


BEGINNING at a set iron rod
that bears South 07 deg. 33 min. 53 sec. West, a distance of 3582.57 feet from
the Northwest corner (said Northwest corner having state plane coordinates of X
equals 3,227,829.57 and Y equals 717,353.87) of the 289.29 acre tract, said
point having state plane coordinates of X equals 713,981.47, said point also
being the Southwest corner of a 2.80 acre tract called “The Premises”, in a
Deed to Stolt Terminals (Houston) Inc. recorded in the Official Public Records
of Real Property of Harris County, Texas under Clerk’s File Number M048685;


 


THENCE, along the South line
of said 2.80 acre tract, South 75 deg. 06 min. 31 sec. East, leaving the South
line of said 2.80 acre tract at a distance of 116.38 feet, and continuing a
total distance of 333.15 feet to an iron rod set in the West line of a 3.70 acre
tract of land called “Road Premises (Part A)” in a Deed to Stolt Terminals
(Houston) Inc. recorded in the Official Public Records of Real Property of
Harris County, Texas under Clerk’s File Number L685063;


 


THENCE, South 14 deg. 32 min.
01 sec. West, along the West line of said 3.70 acre tract, a distance of 17.00
feet to a point;


 


THENCE, North 75 deg. 06 min.
31 sec. West, a distance of 333.25 feet to a point;


 


THENCE, North 14 deg. 53
min. 02 sec. East, a distance of 17.00 feet to the POINT OF BEGINNING. The
herein described tract contains 0.13 acres, more or less.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are correct.


 


41

















 


Tract XX:


 


(Option Premises) 


 


Railroad Spur Premises


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975 recorded in Harris County, Texas, Clerk’s File E372837 and in a deed
to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21, 1977
recorded in Harris County, Texas, Clerk’s File No. F051641, being a centerline
of a 20.00 foot wide tract, and being more particularly described by
coordinates, bearings and distances on The Texas State Plan Coordinate System,
South Central Zone, as follows:


 


BEGINNING at a point that bears South 15 deg. 31 min.
16 sec. East, 1680.68 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having state plane coordinates of X equals
3,228,279.31 and Y equals 715,734.48, also point being in the centerline of
Railroad Premises (Part A) as described in the Terminal Deed;


 


THENCE, along a curve to the left having a radius of
422.47 feet, and a delta angle of 87 deg. 54 min. 50 sec., an arc distance of 648.23
feet to a point;


 


THENCE, South 73 deg. 24 min. 03 sec. East, a distance
of 216.00 feet to a point on the West property line of the Option Premises. The
herein described tract contains 0.02 acres of land, more or less.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations
are correct.


 


42

















 


Tract XXI:


 


Railroad Spur Premises Addition


 


Field notes of the
centerline of a 20 foot wide tract of land in the Richard and Robert Vince
Survey, Abstract No. 76, Harris County, Texas, said tract of land being a part
of a larger tract of land comprising 289.29 acres (“the 289 acre tract”) a
portion of which 289.29 acre tract is described in a deed to Oiltanking of
Texas, Inc. from Janintoport Corporation dated February 21, 1975 recorded in
the Official Public Records of Real Property of Harris County, Texas, under
Clerk’s File Number E372837 and a portion of which 289.29 acre tract is
described in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
dated February 21, 1977 recorded in the Official Public Records of Real
Property of Harris County, Texas, under Clerk’s File Number F051641, and being
more particularly described by coordinates, bearing and distances based on the
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point in the
centerline of a tract referred to as “Railroad Spur premises”, described in a
deed to stolt Terminals (Houston) Inc. recorded in the Official Public Records
of Real Property of Harris County, Texas under Clerk’s File No, M457165, that
bears South 19 deg. 38 min. 02 sec. East, 2268.88 feet from the Northwest
corner (said Northwest corner having state plane coordinates of X equals
3,227,829.57 and Y equals 7171,353.87) of the 289 acre tract, said point having
state plane coordinates of X equals 3,228,591.84 and y equals 715,216.52;


 


THENCE, along a curve to the
left, having a radius of 506.52 feet, a delta of 14 deg. 48 min. 06 sec. a
chord bearing of South 81 deg. 28 min. 57 sec. East and an arc length of 130.85
feet, to a point;


 


THENCE, South 88 deg. 12
min. 09 sec. East, a distance of 61.82 feet to a point in the west line of a 20
acre tract of land called “Option Premises” in a deed to Stolt Terminals
(Houston) Inc. recorded in the Official Public Records of Real Property of
Harris County, Texas under Clerk’s File No. M457165. The herein described tract
contains 0.088 acres of land more or less.


 


NOTE:
This Company does not represent that the above acreage or
square footage calculations are correct.


 


43

















 


Tract XXII:


 


Behring Road
Premises


 


The non-exclusive easement and right-of-way to use those certain
premises described as the “Road Premises” (hereinafter “Behring Road”), in that
certain Deed dated September 12, 1975, from Jacintoport Corporation to Behring
International, Inc. and recorded in the Official Public Records of Real
Property of Harris County, Texas, under Film Code No. 127-03-1518 under Harris
County Clerk’s File Number(s) E540411 and Film Code No. 127-05-1481 under
Harris County Clerk’s File Number (s) E542098.


 


44

















 


Tract XXIII:


 


ANNEX II Access
Premises


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract
of land being a part of a larger tract of land (“the 289 acre tract”) described
in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February
21, 1975 recorded in Harris County, Texas, Clerk’s File E372837 and in a deed
to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21, 1977
recorded in Harris County, Texas, Clerk’s File No. F051641, and being more
particularly described by coordinates, bearings and distances based on the
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 01 deg. 08 min.
45 sec. West, 3072.89 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87
of said 289 acre tract, said point having state plane coordinates of X equals
3,227,768.12 and Y equals 714,281.59, being the Southern most corner of the
following described easement, said point also being on a Westerly line of Road
Premises (Part A) and being the Northeast corner of the Premises described in
Annex I hereto;


 


THENCE, North 75 deg. 34 min. 58 sec. West along the
North property line of said 2.80 acre tract, a distance of 60.00 feet to a
point;


 


THENCE, North 59 deg. 28 min. 31 sec. East a distance
of 84.94 feet to a point on said Westerly line of Road Premises (Part A);


 


THENCE, South 14 deg. 32 min. 01 sec. West along said
property line of Road Premises (Part A), a distance of 60.00 feet to a POINT OF
BEGINNING. The herein described easement contains 0 04 acres of land, more or
less.


 


NOTE: This Company does not represent that the above acreage or square footage
calculations are correct.


 


45

















 


Tract XXIV:


 


ANNEX III Walkway
Premises


 


Field notes of a tract of land in the Richard and
Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land
being a part of a larger tract of land (“the 289 acre tract”) described in a
deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February 21,
1975 recorded in Harris County, Texas, Clerk’s File No. E372837 and in
a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation on February
21, 1977 recorded in Harris County, Texas, Clerk’s File No. F051641, being a
centerline of a 4.0 foot wide tract, and being more particularly described by
coordinates, bearings and distances based on the Texas State Plane Coordinate
System, South Central Zone, as follows:


 


BEGINNING at a point that bears South 00 deg. 29 min.
26 sec. West, 3274.68 feet from the Northwest corner (said Northwest corner
having state plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87)
of said 289 acre tract, said point having state plane coordinates of X equals
3,227,801.53 and Y equals 714,079.31, also being a Northwesterly property line
of a 14.35 acre tract described in the Terminal Deed;


 


THENCE, North 75 deg. 59 min. 03 sec.
West a distance of 83.11 feet to a point on the East property line of the
Premises described in Annex I hereto, and a Westerly line of Road Premises
(Part A). The herein described tract contains 0.01 acres of land more or less.


 


NOTE:
This Company does not represent that the above acreage or
square footage calculations are correct.


 


46

















 


Tract XXV:


 


ANNEX IV Sewer Premises


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land (“the 289 acre
tract”) described in a deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation on February 21, 1975 recorded in Harris County, Texas, Clerk’s File
No. E372837 and in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
on February 21, 1977 recorded in Harris County, Texas, Clerk’s File No. F051641,
being a centerline of 3.0 foot wide tract, and being more particularly
described by coordinates, bearings and distances based on the Texas State Plane
Coordinate System South Central Zone, as follows:


 


BEGINNING at a point that
bears South 00 deg. 50 min. 33 sec. West, 3356.89 feet from the Northwest
corner (said Northwest corner having state plane coordinates of X equals
3,227,829.57 and Y equals 717,353.87) of said 289 acre tract, said point having
state plane coordinates of X equals 3,227,780.21 and Y equals 713,997.34 also
being on the Westerly property line of a 14.35 acre tract described in the
Terminal Deed;


 


THENCE, North 76 deg. 04 min.
52 sec. West, a distance of 57.03 feet to a point;


 


THENCE, South 14 deg. 32 min.
01 sec. West, a distance of 145.54 feet to a point;


 


THENCE, North 75 deg. 27 min.
59 sec. West, a distance of 192.86 feet to a point;


 


THENCE, North 12 deg. 08 min.
45 sec. East, a distance of 26.80 feet to a point on a Southerly property line
of the Premises described in Annex I hereto. The herein described tract
contains 0.03 acres of land, more or less.


 


NOTE: This Company does not represent
that the above acreage or square footage calculations are correct.


 


47

















 


Tract XXVI:


 


ANNEX
V Waterline Premises


 


Field notes of a tract of land in the Richard and Robert Vince Survey,
Abstract No. 76, Harris County, Texas, said tract of land being a part of a larger
tract of land (“the 289 acre tract”) described in a deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation on February 21, 1975 recorded in
Harris County, Texas, Clerk’s File No. E372837 and in a deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation on February 21, 1977 recorded in
Harris County, Texas, Clerk’s File No. F051641, being a centerline of 3.0 foot
wide tract, and being more particularly described by coordinates, bearings and
distances based on the Texas State Plane Coordinate System South Central Zone,
as follows:


 


BEGINNING at a point that bears South 02 deg. 59 min. 07 sec. West,
1649.64 feet from the Northwest corner (said Northwest corner having state
plane coordinates of X equals 3,227,829.57 and Y equals 717,353.87) of said 289
acre tract, said point having state plane coordinates of X equals 3,227,743.66
and Y equals 715,706.47, also being in the centerline of Utility Premises (Part
B) described in the Terminal Deed;


 


THENCE, South 13 deg. 20 min. 25 sec. West, a distance of 1312.59 feet
to a point;


 


THENCE, South 73 deg. 39 min. 55 sec. East, a distance of 57.01 feet to
a point on the Easterly property line of the Premises described in Annex I
hereto. The herein described tract contains 0.03 acres of land, more or less.


 


NOTE:  This Company
does not represent that the above
acreage or square footage
calculations are correct.


 


48

















 


Tract  XXVII:


 


ANNEX VI POWER LINE PREMISES


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land (“the 289 acre
tract”) described in deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation on February 21, 1975 recorded in Harris County, Texas, Clerk’s File
E372837 and in a deed to Oiltanking of Texas, Inc. from

Jacintoport Corporation on February 21, 1977 recorded in Harris County, Texas,
Clerk’s File F051641, being a centerline of a 8.0 foot wide tract, and being
more particularly described by coordinates, bearings and distances based on the
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING
at a point that bears South 00 deg. 30 min. 05 sec. West, 3252.44 feet from the
Northwest corner (said Northwest corner having state plane coordinates of X
equals 3,227,829.57 and Y equals 717,353.87) of said 289 acre tract, said point
having state plane coordinates of X equals 3,227,801.11 and Y equals 714,101.55,
also being in the centerline of Utility Premises (Part C) described in the
Terminal Deed;


 


THENCE
North 63 deg. 11 min. 41 sec. West a distance of 80.24 feet to a point in the
East property line of the Premises described in Annex I hereto, and a Westerly
line of Road Premises (Part A). The herein described tract contains 0.01 acres
of land, more or less.


 


NOTE: This Company does not represent that the above acreage or square footage
calculations are correct.


 


49

















 


Tract
 XXVIII:


ANNEX VII Gas Line Premises


 


Field
notes of a tract of land in the Richard and Robert Vince Survey, Abstract No.
76, Harris County, Texas, said tract of land being a part of a larger tract of
land (“the 289 acre tract”) described in a deed to Oiltanking of Texas, Inc.
from Jacintoport Corporation on February 21, 1973 recorded in Harris County,
Texas, Clerk’s File No. E372837 and in a deed to Oiltanking of Texas, Inc. from
Jacintoport Corporation on February 21, 1977 recorded in Harris County, Texas,
Clerk’s File No. F051641, being a centerline of a 3.0 foot wide tract, and
being more particularly described by coordinates, bearings and distances based
on The Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING
at a point that bears South 04 deg. 27 min. 14 sec. West, 3465.64 feet from the
Northwest corner (said Northwest corner having state plane coordinates of X
equals 3,227,829.57 and Y equals 717,353.87 of said 289 acre tract), said point
having state plane coordinates of X equals 3,227,560.44 and Y equals 713,898.70
also being on the Southern most line of Utility Premises (Part A), described in
Annex IV to the Terminal Deed;


 


THENCE
North 14 deg. 00 min. 21 sec. East, at a distance of 4.49 feet pass Southern
most line of a sewer premise described in “Stolt Sewer Premises”, at a distance
of 26.75 feet pass an existing South edge of a road, continuing a total
distance of 56.05 feet to a point on a curve being a Southeasterly property
line of the Premises described in Annex I hereto. The herein described tract
contains 0.004 acres of land, more or less.


 


LB
NOTE: This Company does not represent
that the above acreage or square footage calculations are correct.


 


50

















 


Tract XXIX:


 


Slip 4
Premises

Barge D Area


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land comprising
289.29 acre (“the 289 acre tract”) a portion of which 289.29 acre tract is
described in a deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
dated February 21, 1975 recorded in the Official Public Records of Real
Property of Harris County, Texas under Clerk’s File Number E372837 and a
portion of which 289.29 acre tract is described in a deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1977 recorded in
the Official Public Records of Real Property of Harris County, Texas under
Clerk’s File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING
at a point for the Southwest corner of this tract that bears South 11 deg. 18
min. 23 sec. East, a distance of 4463.04 feet from the Northwest corner (said
Northwest corner having state plane coordinates of X equals 3,227,829.57 and Y
equals 717,353.87) of the 289 acre tract, said point having state plane coordinates
of X equals 3,228,704.57 and Y equals 712,977.44 also being a point on the
North property line of Slip 4 Premises Ship 4 Area described on the 11-page
survey referred to below:


 


THENCE
North 02 deg. 05 min. 07 sec. East, a distance of 500.00 feet to a point for
the Northwest corner of this tract;


 


THENCE South 87 deg. 54 min.
53 sec. East, a distance of 180.00 feet to an iron rod set for the Northeast
corner of this tract and being the Northwest corner of Barge Dock D Premises described
on the 11-page survey referred to below:


 


THENCE
South 02 deg. 05 min. 07 sec. West, along the West property line of Barge Dock
D Premises, described on the 11-page survey referred to below, a distance of
500.00 feet to a point for the Southeast corner of this tract also being the
Southwest corner of Barge Dock D Premises described on the 11-page survey
referred to below, the Northwest corner of Ship Dock 4 Premises described on
the 11-page survey referred to below and the Northeast corner of Slip 4
Premises Ship 4 Area described on the 11-page survey referred to below;


 


THENCE
North 87 deg. 54 min. 53 sec. West along the North property line of Slip 4
Premises Ship 4 Area described on the 11-page survey referred to below, a
distance of 180.00 feet to the POINT OF BEGINNING. The herein described tract
contains 2.07 acres of land, more or less.


 


The foregoing field notes were
prepared in connection with a survey of the above described property prepared
by the undersigned dated October 4, 1990 and most recently revised and updated
on August 5, 1992, which survey
is set forth on Sheets 5 and 7, and on Sheet 11 of an 11-page survey prepared
by the undersigned and identified as Job No. 1629 and Drawing Number
OTI-1629D-2305.


 


51

















 


NOTE:  This Company
does not represent that the above acreage or square footage calculations are
correct.


 


Slip 4 Premises

Ship 4 Area


 


Field
notes of a tract of land in the Richard and Robert Vince Survey, Abstract No.
76, Harris County, Texas, said tract of land being a part of a larger tract of
land comprising 289.29 acre (“the 289 acre tract”) a portion of which 289.29
acre tract is described in a deed to Oiltanking of Texas, Inc. from Jacintoport
Corporation dated February 21, 1975 recorded in the Official Public Records of
Real Property of Harris County, Texas under Clerk’s File Number E372837 and a
portion of which 285.29 acre tract is described in a deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1977 recorded in
the Official Public Records of Real Property of Harris County, Texas under
Clerk’s File No. F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING
at a point for the Northwest corner of this tract that bears South 10 deg. 21
min. 58 sec. East, a distance of 4446.27 feet from the Northwest corner (said
Northwest corner having state plane coordinates of X equals 3,227,829.57 and Y
equals 717,353.87) of the 289 acre tract, said point having state plane coordinates
of X equals 3,228,629.62 and Y equals 712,980.17;


 


THENCE
South 87 deg. 54 min. 53 sec. East, a distance of 255.00 feet to a point for
the Northeast corner of this tract, also being the Southeast corner of Slip 4
Premises Barge D Area described on the 11-page survey referred to below, the
Southwest corner of Barge Dock D Premises described on the 11-page survey
referred to below and the northwest corner of Ship Dock 4 Premises described on
this 11-page survey referred to below;


 


THENCE
South 02 deg. 05 min. 07 sec. West, along the West property line of Ship Dock 4
Premises described on the 11-page survey referred to below, a distance of
1003.58 feet to a point for the Southeast corner of this tract, also being a
point on the North right-of-way line of the Houston Ship Channel and the
Southerly property line of the 289 acre tract;


 


THENCE
along the North right-of-way line of the Houston Ship Channel along a curve to the
right (also being a Southerly property line of the 289 acre tract) having a
radius of 5349.86 feet, a delta angle of 02 deg. 47 min. 56 sec. and an arc
length of 261.34 feet to a point for the Southeast corner of this tract;


 


THENCE
North 02 deg. 05 min. 07 sec. East, a distance of 1060.69 feet to the POINT OF
BEGINNING. The herein described tract contains 6.05 acres of land, more or
less.


 


The foregoing field notes
was prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990, and most recently revised
and updated on August 5, 1992, which survey is set forth on Sheets 5 or 7, and
on Sheet 11 of an 11-page survey prepared by the undersigned and identified as
Job No. 1629 and Drawing Number OTI-1629D-2305.


 


52

















 


Tract  XXX:


SHIP DOCK 4 PREMISES


 


Field
notes of a tract of land in the Richard and Robert Vince Survey, Abstract No.
76, Harris County, Texas, said tract of land being a part of a larger tract of
land compromising 289.29 acre tract is described in deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1975 recorded in
the Official Public Records of Real Property of Harris County, Texas under
Clerk’s File No. E372837 and a portion of which 289.29 acre tract is described
to Oiltanking of Texas, Inc. from Jacintoport Corporation dated February 21,
1977 recorded in the Official Public Records of Real Property of Harris County,
Texas under Harris County Clerk’s File Number(s) F051641, and being more
particularly described by coordinates, bearings and distances based on the
Texas State Plane Coordinate System, South


 


BEGINNING
at a point for the Northwest corner of this tract that bears South 13 deg. 31
min. 57 sec. East, a distance of 4508.14 feet from the Northwest corner (said
Northwest corner having state plane coordinates of X equals 3,227,829.57 and Y
equals 717,353. 87) of the 289 acre tract, said point having state plane
coordinates of X equals 3,228,884.45 and Y equals 712,970.89, also being the
Southwest corner of Barge Dock D Premises described on the 11-page survey
referred to below, the Southeast corner of Slip 4 Premises Barge D Area
described on the 11-page survey referred to below and the Northeast corner of Slip
4 Premises Ship 4 Area described on the 11-page survey referred to below;


 


THENCE,
South 87 deg. 54 min. 53 sec. East, along the South property line of Barge Dock
D Premises, described on the 11-page survey referred to below, a distance of 40.00
feet, to an iron rod set for the Northeast corner of this tract also being the
Northwest corner of Ship Dock 5 Premises, described on the 11-page survey
referred to below and the Southwest corner of Barge Dock E Premises described
on the 11-page survey referred to below;


 


THENCE,
South 02 deg. 05 min. 07 sec. West, along the West property line of Ship Dock
Premises, described on the 11-page survey referred to below, a distance of
1024.45 feet to a point for a Southeast corner of this tract also being the
Southwest corner of Ship Dock 5 Premises described on the 11-page survey
referred to below, and a point on the Southerly property line of the 289 acre
tract and the North right-of-way line of the Houston Ship Channel;


 


THENCE,
along the North right-of-way line of the Houston Ship Channel along a curve to
the right (also being a Southerly property line of the 289 acre tract) having a
radius of 5379.91 feet, a delta angle of 00 deg. 00 min. 59 sec., an arc
distance of 1.54 feet to a point;


 


THENCE,
continuing along the North right-of-way line of the Houston Ship Channel (also
being the Southerly property line of the 289 acre tract) North 12 deg. 17 min.
01 sec. West, a distance of 30.05 feet to a point;


 


THENCE, continuing along the
North right-of-way line of the Houston Ship Channel (also being the Southerly
property line of the 289 acre tract) along a curve to the right having a radius
of 5349.86 feet, a delta angle of 00 deg. 20 min. 36 sec. and


 


53

















 


an arc length of 32.06 feet
to a point for the Southwest corner of this tract also being the Southeast
corner of Slip 4 Premises Ship 4 Area described on the 11-page survey referred
to below;


 


THENCE,
North 02 deg. 05 min. 07 sec. East, along the East property line of Slip 4
Premises Slip 4 Area described on the 11-page survey referred to below, a
distance of 1003.58 feet to the POINT OP BEGINNING. The herein described tract
contains 0.92 acres, more or less.


 


Ship Dock 5
Premises


 


Field notes of a tract of land in the Richard and Robert Vince Survey,
Abstract No. 76, Harris County, Texas, said tract of land being a part of a
larger tract of land comprising 289.29 acres (“the 289 acre tract”) a portion
of which 289.29 acre tract is described in deed to Oiltanking of Texas, Inc.
from Jacintoport Corporation dated February 21, 1975 recorded in the Official
Public Records of Real Property of Harris County, Texas under Clerk’s File
Number E372837 and a portion of which 289.29 acre tract is described in a deed
to Oiltanking of Texas, Inc. from Jacintoport Corporation dated February 21,
1977 recorded in the Official Public Records of Real Property of Harris County,
Texas under Clerk’s File Number F051641, and being more particularly described
by coordinates, bearings and distances based on The Texas State Plane
Coordinate System, South Central Zone, as follows:


 


BEGINNING at an iron rod
that bears South 14 deg. 01 min. 15 sec. East, a distance of 4519.07 feet from
the Northwest corner (said Northwest corner having State Plane Coordinates of X
equals 3,227,829.57 and Y equals 717,353.87) of the 289 acre tract, said point
having State Plane Coordinates of X equals 3,228,924.42 and Y equals 712,969.43,
said point being a common corner with the Northeast corner of Ship Dock 4
Premises, described on the 11-page survey referred to below;


 


THENCE South 87 deg. 54 min.
53 sec. East, along the South property line of Barge Dock E Premises, described
on the 11-page survey referred to below, a distance of 40.00 feet to an iron
rod for a corner of this tract also being the Southwest corner of Slip 5
Premises Barge E Area, described on the 11-page survey referred to below;


 


THENCE South 02 deg. 05 min.
07 sec. West, along the West property line of Slip 5 Premises Ship 5 Area,
described on the 11-page survey referred to below, a distance of 1014. 03 feet
to a point on a Southerly property line of the 289 acre tract and the North
right-of-way line of the Houston Ship Channel;


 


THENCE along the North
right-of-way line of the Houston Ship Channel along a curve to the right (also
being a Southerly property line of the 289 acre tract) having a radius of 5379.91
feet, a delta angle of 00 deg. 26 min. 26 sec. an arc distance of 41.37 feet to
a point;


 


THENCE North 02 deg. 05 min.
07 sec. East, along the East property line of said Ship Dock 4 Premises, a
distance of 1024.45 feet to an iron rod at the POINT OF BEGINNING. The herein
described tract contains 0.94 acres, more or less.


 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990 and most


 


54

















 


recently revised and updated
on August 5, 1992, which survey is set forth on Sheets 5 or 7, and on Sheet 11
of an 11-page survey prepared by the undersigned and identified as Job No. 1629
and Drawing Number OTI-1629D-2305.


 


NOTE:  This Company
does not represent that the above acreage or square footage calculations are
correct.


 


55

















 


BARGE DOCK D
PREMISES


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land comprising
289.29 acres (“the 289 acre tract”) a portion of which 289.29 acre tract is
described in a Deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
dated February 21, 1975 recorded in the Official Public Records of Real
Property of Harris County, Texas, under Clerk’s File Number E372837 and a
portion of which 289.29 acre tract is described in a Deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1977, recorded in
the Official Public Records of Real Property of Harris County, Texas, under
Clerk’s File Number F051641, and being more particularly described by
coordinates, bearings and distances based on The Texas State Plane Coordinate
System, South Central Zone, as follows:


 


BEGINNING at an iron rod set
for the Northwest corner of this tract that bears South 15 deg. 26 min. 49 sec.
East, a distance of 4028.85 feet from the Northwest corner (said Northwest
corner having State Plane Coordinates of X equals 3,227,829.57 and Y equals
717,353.87) of the 289 acre tract, said point having State Plane Coordinates of
X equals 3,228,902.64 and Y equals 713,470.55, also being the Northwest corner
of Barge Dock D Premises described on the 11-page survey referred to below, the
Southwest corner of Dock 4/5 Access Premises, described on the 11-page survey
referred to below and the Northeast corner of Slip 4 Premises Barge D Area
described on the 11-page survey referred to below;


 


THENCE South 87 deg. 54 min.
53 sec. East, along the North property line of Barge Dock D Premises, described
on the 11-page survey referred to below, a distance of 40.00 feet to an iron
rod set for the Northeast corner of this tract, also being the Northwest corner
Barge Dock E Premises, described on the 11-page survey referred to below and
the Northwest corner of Barge Dock E Premises described on the 11-page survey referred
to below;


 


THENCE South 02 deg. 05 min.
07 sec. West, along the East property line of Barge Dock D Premises, described
on the 11-page survey referred to below, a distance of 500.00 feet to a point
for a Southeast corner of this tract also being the Southwest corner of Barge
Dock E Premises described on the 11-page survey referred to below, the
Northwest corner Ship Dock 5 Premises described on the 11-page survey referred
to below, and the Northeast corner Ship Dock 4 Premises described on the 11-page
survey referred to below;


 


THENCE N 87 deg. 54 min. 53 sec. W, along
the North property line of Ship Dock 4 Premises described on the 11-page survey
referred to below, a distance of 40.00 feet to a point for the Southwest corner
of this tract, also being the Northwest corner of Ship Dock 4 Premises
described on the 11-page survey referred to below, the Northeast corner of Slip
4 Premises Ship 4 Area described on the 11-page survey referred to below, and
the Southeast corner of Slip 4 Premises Barge D Area designated on the 11-page
survey referred to below;


 


THENCE North 02 deg. 05 min.
07 sec. East, along the East property line of Slip 4 Premises Barge D Area
described on the 11-page survey referred to below, a distance of 500.00 feet to
the POINT OF BEGINNING. The herein described tract contains 0.46 acres, more or
less.


 


56

















 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990 and most recently revised and
updated on August 5, 1992,
which survey is set forth on Sheets 5 or 7, and on Sheet 11 of an 11-page
survey prepared by the undersigned and identified as Job No. 1629 and Drawing
Number OTI-1629D-2305.


 


NOTE:  This Company does not represent that
the above acreage or square footage calculations are correct.


 


57

















 


BARGE DOCK E PREMISES


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land comprising 289.29 acres (“the 289 acre tract”) a
portion of which 289.29 acre tract is described in a Deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1975 recorded in
the Official Public Records of Real Property of Harris County, Texas, under
Clerk’s File Number E372837 and a portion of which 289.29 acre tract is
described in a Deed to Oiltanking of Texas, Inc. from Jacintoport Corporation dated
February 21, 1977, recorded in the Official Public Records of Real Property of
Harris County, Texas, under Clerk’s File Number F051641, and being more
particularly described by coordinates, bearings and distances based on The
Texas State Plane Coordinate System, South Central Zone, as follows:


 


BEGINNING at an iron rod
that bears South 15 deg. 59 min. 16 sec. East, a distance of 4041.09 feet from
the Northwest corner (said Northwest corner having State Plane Coordinates of X
equals 3,227,829.57 and Y equals 717,353.87) of the 289 acre tract, said point
having State Plane Coordinates of X equals 3,228,942.61 and Y equals 713,469.09;


 


THENCE South 87 deg. 54 min.
53 sec. East, along the South property line of Dock 4/5 Access Premises,
described on the 11-page survey referred to below, a distance of 40.00 feet to
an iron rod for a corner of this tract, also being the Northwest corner of Slip
5 Premises Barge E Area, described on the 11-page survey referred to below;


 


THENCE South 02 deg. 05 min.
07 sec. West, along the entire West property line of said Slip 5 Premises Barge
E Area, a distance of 500.00 feet to an iron rod for a corner of this tract,
also being the Northwest corner of Slip 5 Premises Ship 5 Area, described on
the 11-page survey referred to below, and the Northeast corner of Ship Dock 5
Premises, described on the 11-page survey referred to below;


 


THENCE North 87 deg. 54 min.
53 sec. West, along the entire North property line of said Ship Dock 5
Premises, a distance of 40.00 feet to an iron rod for the Southwest corner
of this tract and being a common point on the East property line of Ship Dock 4
Premises, described on the 11-page survey referred to below;


 


THENCE North 02 deg. 05 min.
07 sec. East, along said East property line of Barge Dock D Premises, described
on the 11-page survey referred to below, a distance of 500.00 feet to an iron
rod at the POINT OF BEGINNING. The herein described tract contains 0.46 acres,
more or less.


 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 199AO and most recently revised
and updated on August 5, 1992, which survey is set forth on Sheets 5 or 7, and
on Sheet 11 of an 11-page survey prepared by the undersigned and identified as
Job No. 1629 and Drawing Number OTI-1629D-2305.


 


NOTE:  This Company does not represent that the above acreage or square footage calculations are correct.


 


58

















 


DOCK 4/5 ACCESS PREMISES


 


Field notes of a tract of land
in the Richard and Robert Vince Survey, Abstract No. 76, Harris County, Texas, said tract of land being a part of a
larger tract of land comprising 289.29 acres (“the 289 acre tract”) a portion
of which 289.29 acre tract is described in a Deed to Oiltanking of Texas, Inc.
from Jacintoport Corporation dated February 21, 1975 recorded in the Official
Public Records of Real Property of Harris County, Texas, under Clerk’s File
Number E372837 and a portion of which 289.29 acre tract is described in a Deed
to Oiltanking of Texas, Inc. from Jacintoport Corporation dated February 21,
1977, recorded in the Official Public Records of Real Property of Harris
County, Texas, under Clerk’s File Number F051641, and being more particularly
described by coordinates, bearings and distances based on The Texas State Plane
Coordinate System, South Central Zone, as follows:


 


BEGINNING at an iron rod set
that bears South 15 deg. 59 min. 36 sec. East, a distance of 4041.09 feet from
the Northwest corner (said nw corner having State Plane Coordinates of X equals
3,227,829.57 and Y equals 717,353.87) of the 289.29 acre tract, said point
having State Plane Coordinates X equals 3,228,942.61 and Y equals 713,469.09,
also being a common comer with the Northwest corner of Barge Dock E Premises
described on the 11-page survey referred to below and the Northeast corner of
Barge Dock D Premises described on the 11-page survey referred to below;


 


THENCE North 87 deg. 54 min.
53 sec. West, along the North property line of Barge Dock D Premises described
on the 11-page survey referred to below, a distance of 40.00 feet to an iron
rod set;


 


THENCE North 02 deg. 05 min.
07 sec. East, a distance of 240.62 feet to an iron rod set;


 


THENCE South 88 deg. 13 min.
35 sec. East, a distance of 80.00 feet to an iron rod set;


 


THENCE South 02 deg. 05 min.
07 sec. West, a distance of 241.06 feet to an iron rod set for a corner of this
tract, also being the Northeast corner of Barge Dock E Premises described on
the 11-page survey referred to below;


 


THENCE North 87 deg. 54 min.
53 sec. West, along the North property line of Barge Dock E Premises described
on the 11-page survey referred to below, a distance of 40.00 feet to the POINT
OF BEGINNING. The herein described tract contains 0.44 acres of land, more or
less.


 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990 and most recently revised and
updated on August 5, 1992, which survey is set forth on Sheets 5 or 7, and on
Sheet 11 of an 11-page survey prepared by the undersigned and identified as Job
No. 1629 and Drawing Number OTI-1629D-2305.


 


NOTE:  This Company
does not represent that the above acreage or square
footage calculations are correct.


 


59

















 


SLIP 5 PREMISES

SHIP 5 AREA


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land comprising
289.29 acres (“the 289 acre tract”) a portion of which 289.29 acre tract is
described in a Deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
dated February 21, 1975 recorded in the Official Public Records of Real
Property of Harris County, Texas, under Clerk’s File Number E372837 and a
portion of which 289.29 acre tract is described in a Deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1977, recorded in
the Official Public Records of Real Property of Harris County, Texas, under
Clerk’s File Number F051641, and being more particularly described by
coordinates, bearings and distances based on The Texas State Plane Coordinate
System, South Central Zone, as follows:


 


BEGINNING at a point that
bears South 14 deg. 30 min. 25 sec. East, a distance of 4530.34 feet from the
Northwest corner (said Northwest corner having State Plane Coordinates of X
equals 3,227, 829.57 and Y equals 717,353.87) of the 289 acre tract, said point
having State Plane Coordinates of X equals 3,228,964.40 and Y equals
712,967.97, also being a common corner with the Southwest corner of Slip 5
Premises Barge E Area, described on the 11-page survey referred to below, the
Southeast corner of Barge Dock E Premises described on the 11-page survey
referred to below, and the Northeast corner of Ship Dock 5 Premises, described
on the 11-page survey referred to below;


 


THENCE South 87 deg. 54 min.
53 sec. East, along the entire South property line of said Slip 5 Premises
Barge E Area, a distance of 250.00 feet to a iron rod for a distance of this
tract;


 


THENCE South 02 deg. 05 min.
07 sec. West, a distance of 941.34 feet to a point on a Southerly property line
of the 289 acre tract and the North right-of-way line of the Houston Ship
Channel;


 


THENCE along the North
right-of-way line of the Houston Ship Channel along a curve to the right (also
being a Southerly property line of the 289 acre tract) having a radius of 5379.91
feet, a delta angle of 02 deg. 46 min.
23 sec., an arc distance of 260.38 feet to a point;


 


THENCE North 02 deg. 05 min.
07 sec. East, along the entire East property line of said Ship Dock 5 Premises
a distance of 1014.03 feet to an iron rod at the POINT OF BEGINNING. The herein
described tract contains 5.62 acres, more or less.


 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990 and most recently revised and
updated on August 5, 1992, which survey is set forth on Sheets 5 or 7, and on
Sheet 11 of an 11-page survey prepared by the undersigned and identified as Job
No. 1629 and Drawing Number OTI-1629D-2305.


 


NOTE:  This Company does not represent that the
above acreage or square footage calculations are correct.


 


60

















 


TRACT XXXI:


 


SLIP 1
PREMISES


 


Field notes of a tract of
land in the Richard and Robert Vince Survey, Abstract No. 76, Harris County,
Texas, said tract of land being a part of a larger tract of land comprising
289.29 acres (“the 289 acre tract”) a portion of which 289.29 acre tract is
described in a Deed to Oiltanking of Texas, Inc. from Jacintoport Corporation
dated February 21, 1975 recorded in the Official Public Records of Real
Property of Harris County, Texas, under Clerk’s File Number E372837 and a
portion of which 289.29 acre tract is described in a Deed to Oiltanking of
Texas, Inc. from Jacintoport Corporation dated February 21, 1977, recorded in
the Official Public Records of Real Property of Harris County, Texas, under Clerk’s
File Number F051641, and being more particularly described by coordinates,
bearings and distances based on The Texas State Plane Coordinate System, South
Central Zone, as follows:


 


BEGINNING at a point for the
Northwest corner of this tract that bears South 00 deg. 36 min. 39 sec. East, a
distance of 4446.62 feet from the Northeast corner (said Northwest corner
having State Plane Coordinates of X equals 3,227, 829.57 and Y equals
717,353.87) of the 289 acre tract, said point having State Plane Coordinates of
X equals 3,227,876.98 and Y equals 712,907.50;


 


THENCE South 87 deg. 54 min.
53 sec. East, a distance of 225.00 feet to a point for the Northeast corner;


 


THENCE South 02 deg. 05 min.
07 sec. West, a distance of 1037.84 feet to a point on the Southerly property
line of the 289 acre tract and the North right-of-way line of the Houston Ship
Channel;


 


THENCE along the North
right-of-way line of the Houston Ship Channel (also being the Southerly
property line of the 289 acre tract) along a curve to the right having a radius
of 5349.86 feet, a delta angle of 02 deg. 25 min. 01 sec. and an arc length of
225.68 feet to a point for the Southwest corner of this tract;


 


THENCE North 02 deg. 05 min.
07 sec. East, a distance of 1,055.10 feet to the POINT OF BEGINNING; The herein
described tract contains 5.41 acres of land, more or less.


 


The foregoing field notes
were prepared in connection with a survey of the above described property
prepared by the undersigned dated October 4, 1990 and most recently revised and
updated on August 5, 1992, which survey is set forth on Sheets 5 or 7, and on
Sheet 11 of an 11-page survey prepared by the undersigned and identified as Job
No. 1629 and Drawing Number OTI-1629D-2305.


 


NOTE:  This Company does not represent
that the
above acreage or square footage calculations are correct.


 


61

















 


TRACT
XXXII:


 


0.6066 ACRE STOLT TANKAGE
AREA BOUNDARY


 


Metes and bounds description
of a 0.6066 acre tract of land out of a call 99.203 acre tract of land conveyed
to Oiltanking of Texas, Inc. as recorded in File Number E372837, Film Code
###-##-####, Harris County Official Public Records of Real Property, said
0.6066 acre tract being situated in the Richard & Robert Vince Survey,
Abstract 76, Harris County, Texas, said 0.6066 acre tract being more
particularly described by metes and bounds as follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central Zone established from
Oiltanking plant coordinate system monuments as shown on Oiltanking drawing
number 92-008-01;


 


BEGINNING at a 5/8” iron rod
with a plastic cap set for the Northwest corner of the herein described 0.6066
acre tract, said corner being a corner of a call 14.35 acre Stolt Terminals
Premises tract as recorded in File Number L685063, said “POINT OF BEGINNING”
having coordinates X equals 3,228,125.93, Y equals 714,302.48;


 


THENCE, South 75 deg. 27 min.
38 sec. East, 203.40 feet to a set 5/8” iron rod with cap;


 


THENCE, South 14 deg. 32
min. 22 sec. West, 77.23 feet to a 5/8” iron rod with cap set in the most
Easterly North line of said 14.35 acre tract;


 


THENCE, along said North
line, North 75 deg. 27 min. 38 sec. West, 94.00 feet to a 5/8” iron rod with
cap set at an interior corner of said 14.35 acre tract;


 


THENCE, along an interior
line of said 14.35 acre tract, South 10 deg. 45 min. 59 sec. West, 106.17 feet
to a 5/8” iron rod with cap set at an interior corner of said 14.35 acre tract;


 


THENCE, along an interior
line of said 14.35 acre tract, North 74 deg. 01 min. 08 sec. West, 104.51 feet
to a 5/8” iron rod with plastic cap set for an interior corner of said 14.35
acre tract;


 


THENCE, along an interior
line of said 14.35 acre tract, North 10 deg. 45 min. 59 sec. East, 180.93 feet
to the “POINT OF BEGINNING” and containing 0.6066 acres of land.


 


NOTE:  This Company
does not represent that
the
above acreage or square footage calculations
are correct.


 


62

















 


TRACT XXXIII:


 


0.0134 ACRE STOLT TRANSFORMED AREA BOUNDARY


 


Metes
and bounds description of a 0.0134 acre tract of land out of a call 99.203 acre
tract of land conveyed to Oiltanking of Texas, Inc. as recorded in File Number E372837,
Film Code 116-79-2489, Harris County Official Public Records of Real Property,
said 0.0134 acre tract being situated in the Richard & Robert Vince Survey,
Abstract 76, Harris County, Texas, said 0.0134 acre tract being more fully
described by metes and bounds as follows;


 


All
bearings and coordinates are based on the Texas Coordinate System, South
Central Zone established from the Oiltanking plant coordinate system monuments
as shown on Oiltanking drawing number 92-008-01.


 


BEGINNING
at a 5/8” iron rod with a plastic cap set for the Southeast corner of the herein
described 0.0134 acre tract, said corner being the most Easterly Northeast corner
of a call 14.35 acre Stolt Terminals Premises tract as recorded in File Number L685063,
said “POINT OF BEGINNING” having coordinates X equals 3,228,439.91, Y equals 714,141.27;


 


THENCE,
along the most Easterly North line of said 14.35 acre tract, North 75 deg. 27 min.
38 sec. West, 20.00 feet to a set 5/8” iron with cap;


 


THENCE,
North 14 deg. 32 min. 22 sec. East, 29.30 feet to the Northwest corner of an existing
transformer concrete pad;


 


THENCE,
South 75 deg. 27 min. 38 sec. East, 20.00 feet to a set 5/8” iron rod with cap;


 


THENCE, South 14 deg. 32 min. 22 sec. West, 29.30 feet
to the “POINT OF BEGINNING” and containing 0.0134 acres of land.


 


NOTE:  This Company does not represent
that the above acreage or square footage calculations are correct.


 


63

















 


EASEMENT:


 


0.0077 ACRE STOLT EASEMENT AT ‘B’ MANIFOLD


 


Metes and bounds description
of a 0.0077 acre (10’ wide) tract of land out of a call 99.203 acre tract of
land conveyed to Oiltanking of Texas, Inc. as recorded in File Number E372837,
Film Code 116-79-2489, Harris County Official Public Records of Real Property,
said 0.0077 acre tract being situated in the Richard & Robert Vince Survey,
Abstract 76, Harris County, Texas, said 0.0077 acre tract being more fully
described by metes and bounds as follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central Zone established form
the Oiltanking plant coordinate system monuments as shown on Oiltanking drawing
number 92-008-01.


 


BEGINNING at a 5/8 inch iron
rod with a plastic cap set for the Northwest corner of the herein described 0.0077
acre tract, said corner being South 14 deg. 32 min. 22 sec. West, 112.02 feet
from a 5/8” iron rod with plastic cap previously set for the most Easterly
Northeast corner of a call 14.35 acre Stolt Terminals Premises tract as
recorded in File Number L685063, said “POINT OF BEGINNING” having coordinates X
equals 3,228,411.79, Y equals
714,032.84;


 


THENCE, South 75 deg. 27 min.
38 sec. East, 33.68 feet to a 5/8” iron rod with cap set at the edge of an
existing piperack;


 


THENCE, along the edge of
said existing piperack, South 14 deg. 32 min. 22 sec. West, 10.00 feet to a cut
“X” set in a concrete footing;


 


THENCE, North 75 deg. 27
min. 38 sec. West, 33.68 feet to a 5/8” iron rod with cap set in the most
Northerly East line of said 14.35 acre tract;


 


THENCE, along said East
line, North 14 deg. 32 min. 22 sec. East, 10.00 feet to the “POINT OF BEGINNING”
and containing 0.0077 acres of land.


 


NOTE:  This Company
does not represent
that the above
acreage
or square footage calculations
are correct.


 


64

















 


EASEMENT:


 


0.0067 ACRE STOLT EASEMENT AT ‘J’ MANIFOLD


 


Metes and bounds description of a 0.0067 acre (10’
wide) tract of land out of a call 99.203 acre tract of land conveyed to
Oiltanking of Texas, Inc. as recorded in File Number E372837, Film Code 116-79-2489,
Harris County Officials Public Records of Real Property, said 0.0067 acre tract
being situated in the Richard & Robert Vince Survey, Abstract 76, Harris
County, Texas, said 0.0067 acre tract being more fully described by metes and
bounds as follows:


 


All bearings and coordinates are based on the Texas Coordinate System,
South Central Zone established from the Oiltanking plant coordinate system
monuments as shown on Oiltanking drawing number 92-008-01.


 


BEGINNING at a 5/8” iron rod with a plastic cap set
for the Northwest corner of the herein described 0.0067 acre tract, said corner
being South 14 deg. 32 min. 22 sec. West, 254.29 feet from a 5/8” iron rod with
plastic cap previously set for the most Easterly Northeast corner of a call
14.35 acre Stolt Terminals Premises tract as recorded in File Number L685063,
said “POINT OF BEGINNING” having coordinates X equals 3,228,376.08, Y equals
713,895.13;


 


THENCE, South 75 deg. 27 min. 38 sec. East, 28.80 feet
to a 5/8” iron rod with cap set at the edge of an existing piperack;


 


THENCE, along the edge of said existing piperack,
South 14 deg. 32 min. 22 sec. West, 10.00 feet to a set 5/8” iron rod with
cap;


 


THENCE, North 75 deg. 27 min. 38 sec. West, 28.80 feet
to a 5/8” iron rod with cap set in the most Northerly East line of said 14.35
acre tract;


 


THENCE, along said East line, North 14 deg. 32 min. 22
sec. East, 10.00 feet to the “POINT OF BEGINNING” and containing 0.0067 acres
of land.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are correct.


 


65

















 


EASEMENT:


 


0.0033 ACRE STOLT EASEMENT AT ‘J’ MANIFOLD


 


Metes and bounds description of a 0.0033 acre (5’
wide) tract of land out of a call 99.203 acre tract of land conveyed to
Oiltanking of Texas, Inc. as recorded in File Number E372837, Film Code
###-##-####, Harris County Officials Public Records of Real Property, said
0.0033 acre tract being situated in the Richard & Robert Vince Survey,
Abstract 76, Harris County, Texas, said 0.0033 acre tract being more fully
described by metes and bounds as follows:


 


All bearings and coordinates are based on the Texas
Coordinate System, South Central Zone established from the Oiltanking plant
coordinate system monuments as shown on Oiltanking drawing number 92-008-01.


 


BEGINNING at a 5/8” iron rod with a plastic cap set
for the Northwest corner of the herein described 0.0033 acre tract, said corner
being South 14 deg. 32 min. 22 sec. West, 225.09 feet from a 5/8” iron rod with
plastic cap previously set for the most Easterly Northeast corner of a call 14.35
acre Stolt Terminals Premises tract as recorded in File Number L685063, said “POINT
OF BEGINNING” having coordinates X equals 3,228,382.15, Y equals 713,918.55;


 


THENCE, South 75 deg. 27 min. 38 sec. East, 33.68 feet
to a 5/8” iron rod with cap set at the edge of an existing piperack;


 


THENCE, along the edge of said existing piperack,
South 14 deg. 32 min. 22 sec. West, 5.00 feet to a “X” cut in a concrete
footing;


 


THENCE, North 75 deg. 27 min. 38 sec. West, 33.68 feet
to a 5/8” iron rod with cap set in the most Northerly East line of said 14.35
acre tract;


 


THENCE, along said East line, North 14 deg. 32 min. 22
sec. East, 5.00 feet to the “POINT OF BEGINNING” and containing 0.0033 acres of
land.


 


NOTE:
This Company does not represent that the above acreage or square footage calculations are correct.


 


66

















 


EASEMENT:


 


POWER POLE PREMISES


 


Metes and bounds description
of a 0.0053 acre tract of land out of a call 99.203 acre tract of land conveyed
to Oiltanking of Texas, Inc. as recorded in File Number E372837, Film Code
###-##-####, Harris County Officials Public Records of Real Property, said
0.0053 acre tract being situated in the Richard & Robert Vince Survey,
Abstract 76, Harris County, Texas, said 0.0053 acre tract being more fully
described by metes and bounds as follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central Zone established from
the Oiltanking plant coordinate system monuments as shown on Oiltanking drawing
number 92-008-01.


 


COMMENCING for reference at
a 5/8” iron rod with a plastic cap set for the Southeast corner of the herein
described 0.0053 acre tract, said corner being the most Easterly Northeast
corner of a call 14.35 acre Stolt Terminals Premises tract as recorded in File
Number L685063, having coordinates X equals 3,228,439.91, Y equals 714,141.27;


 


THENCE, along the most
Easterly North line of said 14.35 acre tract, North 75 deg. 27 min. 38 sec.
West, 20.00 feet to a set 5/8” iron rod with cap;


 


THENCE, North 14 deg. 32 min.
22 sec. East, 29.3 feet to the Northwest corner of an existing transformer
concrete pad, and being the “POINT OF BEGINNING” of the herein described tract;


 


THENCE, North 14 deg. 32
min. 22 sec. East, 29.0 feet to a set 5/8” iron rod with cap;


 


THENCE, South 75 deg. 27 min. 38 sec. East, 8.00 feet
to a 5/8” iron rod with cap;


 


THENCE, South 14 deg. 32 min. 22 sec. West, 29.00 feet
to a set 5/8” iron rod with cap;


 


THENCE, North 75 deg. 27 min. 36 sec. West, 8.00 feet
to the “POINT OF BEGINNING” and containing 0.0053 acres of land.


 


NOTE: This Company does not represent that the above acreage or square footage
calculations are
correct.


 


67

















 


TRACT XXXIV: 


 


Boiler House Premises, Steam Lines and Water Treatment Equipement


 


Metes and bounds description
of a 0.6144 acre tract of land out of a call 99.203 acre tract of land conveyed
to Oiltanking of Texas, Inc. as recorded in File Number E372837, Film Code
###-##-####, Harris County Official Public Records of Real Property, Harris
County, Texas, said 0.6144 acre tract being situated in the Richard &
Robert Vince Survey, Abstract 76, Harris County, Texas, said 0.6144 acre tract
being more fully described by metes and bounds as follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central Zone established from
the Stolt/Oiltanking plant coordinate system monuments as shown on Oiltanking drawing
number 92-008-01.


 


BEGINNING at a 5/8” iron rod
with a plastic cap set for the Southwest corner of the herein described 0.6144
acre tract, said Southwest corner being a Southeast corner of a call 14.35 acre Terminal Premises
tract, conveyed to Stolt Terminals as recorded and described in File Number
L685063, Film Code 117-75-1850, said “POINT OF BEGINNING” having coordinates X
equals 3,228,187.37, Y equals 713,209.89;


 


THENCE, along an East line
of said 14.35 acre tract, North 01 deg. 19 min. 00 sec. East, 199.94 feet to a
set PK nail with washer;


 


THENCE, along a South line
of said 14.35 acre tract, a distance of 88 deg. 24 min. 13 sec. East, 138.23
feet to a set 5/8” iron rod with cap;


 


THENCE, South 01 deg. 51
min. 20 sec. West, 189.90 feet to a PK nail with washer set for the Southeast
corner of the herein described 0.6144 acre tract;


 


THENCE, South 87 deg. 23 min. 19 sec. West, 136.76
feet to the “POINT OF BEGINNING” and containing 0.6144 acres of land.


 


NOTE: This Company does not
represent that the above acreage or square footage calculations are correct.


 


EASEMENT:


 


A non-exclusive easement and
righ-of-way to use the premises as further described in that certain Deed
(Boiler House Premises, Steam Lines and Water Treatment Equipment) recorded under
County Clerk’s File No. T806126 of the Real Property Records of Harris County,
Texas.


 


68

















 


TRACT XXXV:


 


Barge Dock C Expansion Premises



 


Parcel One:


 


Metes and bounds description of a 0.0365 acre tract of
land out of a call 99.203 acre tract of land conveyed to Oiltanking of Texas,
Inc. as recorded in File Number E372837, Film Code 116-79-2439, Harris County
Official Public Records of Real Property, Harris County, Texas, said 0.0365
acre tract being situated in the Richard & Robert Vince Survey, Abstract
76, Harris County, Texas, said 0.0365 acre tract being more fully described by
metes and bounds as follows:


 


All bearings and coordinates are based on the Texas
Coordinate System, South Central Zone established from the Stolt/Oiltanking
plant coordinate system monuments as shown on Oiltanking drawing number
92-008-01.


 


BEGINNING at a 5/8” iron rod with a plastic cap set
for the Southwest corner of the herein described 0.0365 acre tract, said
Southwest corner being a corner of a call 1.03 acre Barge Dock “C” Premises
tract as recorded in File Number L685064, Film Code 117-75-1928, said “POINT OF
BEGINNING” having coordinates X equals 3,228,425.39, Y equals 713,279.04;


 


THENCE, North 02 deg. 55 min. 08 sec. East, 29.00 feet
to a set 5/8” iron rod with cap;


 


THENCE, South 88 deg. 05 min. 42 sec. East, 54.55 feet
to a 5/8” iron rod with cap set in the most Northerly West line of said 1.03
acre Barge Dock “C” Premises tract;


 


THENCE, along said West line of said 1.03 acre tract,
South 02 deg. 05 min. 07 sec. West, 29.00 feet to a 5/8” iron rod with cap set
at a corner of said 1.03 acre tract;


 


THENCE along a North line of said 1.03 acre tract,
North 88 deg. 05 min. 42 sec. West, 54.97 feet to the “POINT OF BEGINNING” and
containing 0.0365 acres of land.


 


NOTE: This Company does not represent that the above
acreage or square footage calculations are correct.


 


Parcel Two:


 


Metes and bounds description of a 0.0513 acre tract of
land out. of a call 99.203 acre tract of land conveyed to Oiltanking of Texas,
Inc. as recorded in File Number E372837, Film Code 116-79-2439, Harris County
Official Public Records of Real Property, Harris County, Texas, said 0.0513
acre tract being situated in the Richard & Robert Vince Survey, Abstract
76, Harris County, Texas, said 0.0513 acre tract being more fully described by
metes and bounds as follows:


 


All bearings and coordinates are based on the Texas
Coordinate System, South Central Zone established from the Stolt/Oiltanking
plant coordinate system monuments as shown on Oiltanking drawing number
92-008-01.


 


69

















 


BEGINNING at a 5/8” iron rod
with a plastic cap set for the Northwest corner of the herein described 0.0513
acre tract, said Northwest corner being a corner of a call 1.03 acre Barge Dock
“C” Premises tract as recorded in File Number L685064, Film Code 117-75-1928,
said “POINT OF BEGINNING” having coordinates X equals 3,228,423.35, Y equals
713,239.12;


 


THENCE, along a line of said
1.03 acre Barge Dock “C” Premises tract, South 88 deg. 05 min. 42 sec. East, 55.55
feet to a 5/8” iron rod with cap set for a corner of said 1.03 acre tract;


 


THENCE, along the most
Southerly West line of said 1.03 acre tract, South 02 deg. 05 min. 07 sec. West,
40.00 feet to a set 5/8” iron rod with cap;


 


THENCE, North 88 deg. 05
min. 42 sec. West, 56.13 feet to a 5/8” iron rod with cap set for the Southwest
corner of the herein described 0.0513 acre tract;


 


THENCE, North 02 deg. 55 min.
08 sec. East, 40.01 feet to the “POINT OF BEGINNING” and containing 0.0513
acres of land.


 


EASEMENT:


 


Easement estates created by
that certain Deed (Barge Dock C Expansion Premises) recorded under County Clerk’s
File No. T806131 of the Real Property Records of Harris County, Texas.


 


70

















 


TRACT
XXXVI:


 


0.5084
Acre Stolt Easement Tract


 


Metes and bounds description
of a 0.5084 acre tract of land out of a call 150.097 acre tract of land
conveyed to Oiltanking of Texas, Inc. as recorded in File Number E372837, Film
Code ###-##-####, out of a call 33.9470 acre tract conveyed to Oiltanking as
recorded in File Number L732406, Film Code 120-73-0460, and out of a proposed 6.000
acre tract out of a call 99.7144 acre tract conveyed to Stolthaven Houston, Inc.
as recorded in File Number S313758, Film Code 511-77-3558, all in the Harris
County Official Public Records of Real Property, said 0.5084 acre tract being
situated in the Richard & Robert Vince Survey, Abstract 76, and the Harris
& Carpenter Survey, Abstract 28, Harris County, Texas, said 0.5084 acre
tract being more particularly described by metes and bounds as follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central zone established from
the Stolt/Oiltanking plant coordinate system monuments as shown on Oiltanking
drawing number 92-008-01.


 


BEGINNING at a 5/8" iron rod with a plastic cap set for the Northwest corner of the herein
described tract, said “POINT OF BEGINNING” being South 00 deg. 46 min. 49 sec.
West, 25.00 feet from a 5/8" iron rod with cap set at the Northeast
corner of a call 5.16 acre Terminal Premises tract conveyed to Stolt Terminals
as recorded in File Number L685063, Film Code 117-75-1850, said “POINT OF
BEGINNING” being in the East line of said 5.16 acre tract, said “POINT OF
BEGINNING” having coordinates X equals 3,228,996.28, Y equals 714,064.19;


 


THENCE, along a line 25 feet
South of and parallel to the South line of a call 20.00 acre Option Premises
tract, as recorded in File Number M457165, FC ###-##-####, South 88 deg. 20 min.
32 sec. East, 435.00 feet to a set 5/8" iron rod with
cap;


 


THENCE, South 74 deg. 57
min. 54 sec. East, 64.83 feet to a set 5/8" iron rod with
cap;


 


THENCE, South 88 deg. 20
min. 32 sec. East, 361.90 feet to a set 5/8" iron rod with cap;


 


THENCE, North 69 deg. 32 min.
46 sec. East, at 136.83 feet pass a point in an East line of said 33.9470 acre
tract, said East line being a West line of said 99.7144 acre tract, said point
being South 20 deg. 25 min. 44 sec. East, along said common line, 171.80 feet
from from a 5/8" iron rod with cap set for the Northwest
corner of said proposed 6.000 acre tract, and continuing for a total distance
of 360.33 feet to a 5/8" iron rod with cap set in an East line of
said proposed 6.000 acre tract to be swapped with Oiltanking, said point being
South 20 deg. 25 min. 44 sec. East 171.70 feet from a 5/8" iron rod with cap set for the Northeast comer of said 6.000 acre
tract;


 


THENCE, along said East line
of said 6.000 acre tract, South 20 deg. 25 min. 44 sec. East, 20.00 feet to a
5/8" iron rod with cap set for the Southeast
corner of the


 


71

















 


herein described 0.5084 acre tract;


 


THENCE, South 69 deg. 32 min.
46 sec. West, at 223.50 feet pass a point in the West line of said
proposed 6.00 acre tract, and continuing for a total distance of 364.23 feet to
a set 5/8" iron rod with cap;


 


THENCE, North 88 deg. 20
min. 32 sec. West, 365.81 feet to a set 5/8" iron rod with cap;


 


THENCE, North 74 deg. 57
min. 54 sec. West, 65.95 feet to a set 5/8" iron rod with cap;


 


THENCE, along a line 40 feet
South of and parallel to said South line of said 20.00 acre tract, North 88 deg.
20 min. 32 sec. West, 435.00 feet to a 5/8" iron rod with cap set in the
East line of said 5.16 acre tract;


 


THENCE, along said East
line, North 00 deg. 46 min. 49 sec. East, 15.00 feet to the “POINT OF BEGINNING”
and containing 0.5084 acre of land.


 


NOTE: This Company does not
represent that the above acreage or square footage calculations are correct.


 


72

















 


TRACT XXXVII: 


 


0.1713 Acre Dock 2/3 Pipeline & Utility Easement


 


Metes and bounds description
of a 0.1713 acre tract of land out of a call 99.203 acre tract of land conveyed
to Oiltanking of Texas, Inc. as recorded in File Number E372837, Film Code
###-##-####, Harris County Official Public Records of Real Property, Harris
County, Texas, said 0.1713 acre tract being situated in the Richard &
Robert Vince Survey, Abstract 76, Harris County, Texas, said 0.1713 acre tract
being more particularly described by metes and bounds as follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central Zone established from
the Shell Oiltanking plant coordinate system monuments as shown on Oiltanking
drawing number 92-008-01.


 


BEGINNING at a 5/8 inch iron
rod with a plastic cap set for a corner of the herein described 0.1713 acre
tract, said corner being the Northwest corner of a call 2.10 acre Ship Dock 2/3
Premises tract conveyed to Stolt Terminals as recorded and described in File
Number L685064, Film Code 117-75-1928, said “POINT OF BEGINNING” having
coordinates X equals 3,228,334.53, Y equals 713,106.71;


 


THENCE, along the West line
of said 2.10 acre tract, South 02 deg. 05 min. 05 sec. West, at 65.73 feet pass
a 5/8 inch iron rod with cap set for reference, and continuing for a total
distance of 115.73 feet to a point, said point being the Northeast corner of a
call 5.81 acre tract conveyed to Stolt Terminals as recorded and described in
File Number L685064;


 


THENCE, along the North line
of said 5 81 acre tract, North 87 deg. 54 min. 50 sec. West, 38.62 feet to a
point;


 


THENCE, North 01 deg. 51
min. 20 sec. East, at 50.00 feet pass a 5/8 inch iron rod with cap set for
reference and continuing for a total distance of 222.63 feet to a 5.8 inch iron
rod with cap set in the South line of a proposed 0.6144 acre tract;


 


THENCE, along the South line
of said proposed 0.6144 acre tract, North 67 deg. 23 min. 19 sec. East, 25.08
feet to a set PK nail with washer;


 


THENCE, South 00 deg. 48 min.
06 sec. East, 110.59 feet to a 5/8 inch iron rod with cap set for a corner of
the 1.42 acre Ship Dock 2/3 Access Premises tract as recorded in File Number L685064;


 


THENCE, North 82 deg. 38
min. 22 sec. East, 9.07 feet to the POINT OF BEGINNING and containing 0.1713
acres of land.


 


NOTE: This Company does not
represent that the above acreage or square footage calculations are correct.


 


73

















 


TRACT XXXVIII:


 


Stolt Office Property Easements 


 


Parcel One:


 


Metes and bounds description of a 0.0956 acre tract of
land out of a call 99.203 acre tract of land conveyed to Oiltanking of Texas,
Inc. as recorded in File Number E372837, Film Code 116-79-2439, Harris County
Official Public Records of Real Property, said 0.0956 acre tract being situated
in the Richard & Robert
Vince Survey, Abstract 76, Harris County, Texas, said 0.0956
acre tract being more particularly described by metes and bounds as follows:


 


All bearings and coordinates are based on the Texas
Coordinate System, South Central Zone established from the Stolt/Oiltanking
plant coordinate system monuments as shown on Oiltanking drawing number
92-008-01.


 


BEGINNING at a 5/8 inch iron rod with a plastic cap
set set for the Southwest corner of the herein described 0.0956 acre tract,
said Southwest corner being in the East line of a call 2.80 acre Premise tract
conveyed to Stolt Terminals as recorded in File Number M048685, Film Code 140-64-0338,
said “POINT OF BEGINNING” having coordinates X equals 3,227,747.02, Y equals
714,200.82;


 


THENCE, along the East line of said 2.80 acre tract,
North 14 deg. 39 min. 03 sec. East, 50.00 feet to a set 5/8 inch iron rod with
cap, said rod being South 14 deg. 39 min. 03 sec. West, 33.47 feet from the
calculated Northeast corner of said 2.80 acre tract;


 


THENCE, South 75 deg. 06 min. 31 sec. East, 83.30 feet
to a 5/8 inch iron rod with cap set in an East line of a call 14.35 acre
Terminal Premises tract conveyed to Stolt Terminals as recorded in File Number
L685062, Film Code 117-75-1850;


 


THENCE, along said East line of said 14.35 acre tract,
South 14 deg. 34 min. 58 sec. West, 50.00 feet to a 5/8 inch iron rod with cap
set for the Southeast corner of the herein described 0.0956 acre tract;


 


THENCE, North 75 deg. 06 min. 31 sec. West, 83.36 feet
to the “POINT OF BEGINNING” and containing 0.0956 acres of land.


 


NOTE: This Company does not represent that the above
acreage or square footage calculations are correct.


 


Parcel Two:


 


Metes and bounds description of a 0.0961 acre tract of
land out of a call 99.203 acre tract of land conveyed to Oiltanking of Texas,
Inc. as recorded in File Number E372837, Film Code 116-79-2439, Harris County
Official Public Records of Real Property, said 0.0961 acre tract being situated
in the Richard & Robert Vince Survey, Abstract 76, Harris County, Texas,
said 0.0961 acre tract being more particularly described by metes and bounds as
follows:


 


74

















 


All bearings and coordinates are based on the Texas
Coordinate System, South Central Zone established from the Stolt/Oiltanking
plant coordinate system monuments as shown on Oiltanking drawing number
92-008-01.


 


BEGINNING at a 5/8 inch iron rod with a plastic cap
set for the Southwest corner of the herein described 0.0961 acre tract, said
Southwest corner being the Southeast corner of a call 0.2260 acre Premises
Addition tract conveyed to Stolt Terminals as recorded in File Number N053274,
said “POINT OF BEGINNING” having coordinates X equals 3,227,667.34, Y equals
713,896.06;


 


THENCE, along the East line of said 0.2260 acre tract,
North 14 deg. 39 min. 03 sec. East, 50.00 feet to a set 5/8 inch iron rod with
cap;


 


THENCE, South 75 deg. 06 min. 31 sec. East, 83.67 feet
to a 5/8 inch iron rod with cap set in an East line of a call 14.35 acre
Terminal Premises tract conveyed to Stolt Terminals as recorded in File Number
L685063, Film Code 117-75-1850;


 


THENCE, along said East line of said 14.35 acre tract,
South 14 deg. 34 min. 58 sec. West, 50.00 feet, to a 5/8 inch iron rod with cap
set for the Southeast corner of the herein described 0.0961 acre tract;


 


THENCE, North 75 deg. 06 min. 31 sec. West, 83.73 feet to the “POINT OF
BEGINNING” and containing 0.0961 acres of land.


 


NOTE: This Company does not represent that the above
acreage or square footage calculations are correct.


 


75

















 


TRACT XXXIX: 


 


Stolthaven North Easement


 


Metes and bounds description
of a 0.4313 acre tract of land out of a call 150.097 acre tract of land
conveyed to Oiltanking of Texas, Inc. as recorded in File Number E372837, Film
Code ###-##-####, and out of a call 33.9470 acre tract conveyed to Oiltanking
as recorded in File Number L732406, Film Code 120-73-0460, Harris County
Official Public Records of Real Property, said 0.4313 acre tract being situated
in the Richard & Robert Vince Survey, Abstract 76, Harris County, Texas,
said 0.4313 acre tract being more particularly described by metes and bounds as
follows:


 


All bearings and coordinates
are based on the Texas Coordinate System, South Central Zone established from
the Stolt/Oiltanking plant coordinate system monuments as shown on Oiltanking
drawing number 92-008-01.


 


BEGINNING at a 5/8 inch iron
rod with a plastic cap set set at the Northeast corner of a call 20.00 acre
Option Premises tract conveyed to Stolt Terminals as recorded in File Number
M457156, Film Code 165-73-1935, said “POINT OF BEGINNING” having coordinates X
equals 3,229,578.39, Y equals 714,972.79;


 


THENCE, North 10 deg. 39 min.
35 sec. East, 49.44 feet to an “X” cut in a concrete road;


 


THENCE, along a line three
(3) feet North of the projection of an existing concrete road. South 73 deg. 19
min. 52 sec. East, 121.59 feet to a 5/8 inch iron rod with cap set in a West
line of a call 99.7144 acre tract conveyed to Stolthaven Houston Inc. as
recorded in File Number S313756, Film Code 511-77-3558;


 


THENCE, along said East line
of said 99.7144 acre tract, South 10 deg. 11 min. 38 sec. West, 154.99 feet to
a 5/8 inch iron rod with cap set for the Southeast corner of the herein
described 0.4313 acre tract;


 


THENCE, North 73 deg. 19 min.
52 sec. West, 122.40 feet to a set 5/8 inch iron rod with cap;


 


THENCE, North 10 deg. 39 min.
35 sec. East, 105.46 feet to the “POINT OF BEGINNING” and containing 0.4313
acres of land.


 


NOTE: This Company does not
represent that the above acreage or square footage calculations are correct.


 


76

















 


STOLTHAVEN
NEW ORLEANS TERMINAL 


 


TRACT I


 


All that tract, piece or
parcel of land situated, lying and being East of the Mississippi River in
Section 1 of Township 13 South, Range 12 East, Section 24 of Township 14 South,
Range 12 East, Sections 1 and 2 of Township 13 South, Range 13 East, and
Sections 1 and 2 of Township 14 South, Range 13 East, Braithwaite Plantation,
formerly known as Orange Grove Plantation, Plaquernines Parish, State of
Louisiana, being more particularly described as follows:


 


Commencing at a point marked
by an iron rail set in concrete in The Alabama Great Southern Railroad Company’s
(“Railroad”) Easterly or Upper property line as described in the deed
recorded in the Conveyance Office of Plaquemines Parish, Louisiana at Book 225,
Folio 23, said point being 75.00 feet distant Southwardly, as measured normal, from the original centerline of main
track of the former Louisiana Southern Railway Company; then go N15°24’00”W as
measured along said Railroad’s Easterly or Upper property line, intersecting
said original centerline of main track at Railway Valuation Station 709+83.7, a
distance of 203.46 feet to a point on the Northerly right-of-way line of State
of Louisiana Highway No. 39; then go N70°42’17”W along said Northerly
right-of-way line a distance of 2116.42 feet to a point on the Easterly line of
a railroad spur track servitude conveyed by Railroad to Stolthaven New Orleans,
L.L.C. by Servitude Agreement dated August 10, 2000, recorded in the Conveyance
Office of Plaquemines Parish, Louisiana in Book 980, Folio 145; then go S41°00’11”E
a distance of 100.91 feet to a point at the Southeast corner of said spur track
servitude; then go N70°42’l 7”W along the centerline of State of Louisiana
Route No. 39 (100 feet wide along this course) a distance of 797.82 feet to a
point on the East line of said Section 2 of Township 13 South, Range 13 East,
and Section 2 of Township 14 South, Range 13 East, said point being the TRUE
POINT OF BEGINNING for the herein described tract of land;


 


thence along said centerline
of State of Louisiana Highway No. 39 (100 feet wide) the following five (5)
courses:


 


1)                                      N70°42’17”W a distance of 320.06 feet to a
point of curvature 


 


2)                                      600.00 feet along a curve deflecting to the
right, said curve having a radius of 22918.30 feet and being subtended by a
chord bearing N69°57’17”W a chord distance of 599.98 feet to a point of
tangency


 


3)                                      N69°12’17”W a distance of 1243.28 feet to a
point of curvature


 


4)                                      629.17 feet along a curve deflecting to the
right, said curve having a radius of 2864.79 feet and being subtended by a
chord bearing N62°54’47”W a chord distance of 627.90 feet to a point of
tangency


 


5)                                      N56°37’l7”W a distance of 355.99 feet to a
point of curvature;


 

















 


thence along the “old”
centerline of said State of Louisiana Highway No.39 and centerline of said
State of Louisiana Highway No. 3137 (80 feet wide) the following four (4)
courses:


 


1)                                      773.89 feet along a curve deflecting to the
right, said curve having a radius of 1909.86 feet and being subtended by a
chord bearing N45°00’47”W a chord distance of 768.61 feet to a point of
tangency


 


2)                                      N33°24’17”W a distance of 592.80 feet to a
point of curvature


 


3)                                      1020.87 feet along a curve deflecting to the
left, said curve having a radius of 2864.90 feet and being subtended by a chord
bearing N43°36’47”W a chord distance of 1015.48 feet to a point of tangency


 


4)                                      N53°49’17”W a distance of 328.03 feet to a
point on Railroad’s Westerly or Lower property line as described in the deed
recorded in the Conveyance Office of Plaquemines Parish, Louisiana at Book 226,
Folio 63;


 


thence N26°30’48”W along said
Lower property line a distance of 570.00 feet, more or less, to a point on the
Mean Low Water Line of said Mississippi River;


 


thence Southeastwardly 5160
feet, more or less, along the meanders of said Mean Low Water Line being
subtended by a chord bearing S63°55’14”E; a chord distance of 5143.75 feet to a
point on said East line of said Section 2 of Township 13 South, Range 13 East,
and Section 2 of Township 14 South, Range 13 East;


 


thence leaving said Mean Low
Water Line S13°42’50”E along said East line of said Section 2 of Township 13
South, Range 13 East, and Section 2 of Township 14 South, Range 13 East, a
distance of 1493.00 feet, more or less, to the Point of Beginning


 


Together with all buildings,
improvements, appurtenances, attachments, rights, ways, privileges, servitudes,
advantages, batture and batture rights thereunto belonging or in anywise
appertaining to the said property


 


Said tract of land containing
118.1 acres, more or less, and being substantially as shown on a Drawing of
Braithwaite Plantation prepared by DUFRENE SURVEYING & ENGINEERING INC.
dated October 19, 1998, last revised August 4, 2000.


 


Being the property acquired
by Stolthaven New Orleans, L.L.C from Railroad by act dated August 10, 2000,
recorded in the Conveyance Office of Plaquemines Parish, Louisiana at Book 980,
Folio 134


 


TRACT II


 


A certain portion of ground
located in Braithwaite Plantation, Plaquemines Parish, Louisiana, in Section 1,
Township 13 South, Range 12 East, Section 24, Township 14 South, Range 13 East,
Sections 1 and 2, Township 14 South, Range 13 East, and part of Section 3,
Township 14 South, Range 13 East, being a portion of Lots 22 & 23 of Tract
I, portion of Lot 29 of Tract 2, portion of Lot 28 of the Kenilworth Tract,
portion of the former E.Z. Opener Bag Company Tract, portion of property
formerly of Gaston Dauterive and portion of property formerly of Valerie B. Dauterive,
and is described as follows:


 


Commence from the
intersection of the upper property line of the Louisiana Southern Railroad
which is the line between Lots 9 & 10, Orange Grove Plantation, with the
northerly right of way line of La. State Highway No. 39 and go North 70 degrees
42 minutes 17 seconds West along the


 

















 


northerly right of way line of La. State Highway No.
39 a distance of 2,116.42 feet to a point; thence go South 41 degrees 00
minutes 11 seconds East a distance of 100.91 feet to a point; thence go North
70 degrees 42 minutes 17 seconds West a distance of 708.53 feet to a point;
thence go South 15 degrees 26 minutes 46 seconds East a distance of 21631 feet
to the POINT OF BEGINNING; thence continue South 15 degrees 26 minutes 46
seconds East a distance of 5,685.50 feet to a point on the Forty Arpent Line;
thence go North 86 degrees 16 minutes 46 seconds West along the Forty Arpent
Line a distance of 265.49 feet to a point; thence go North 76 degrees 16
minutes 46 seconds West along the Forty Arpent Line a distance of 966.90 feet
to a point; thence go North 61 degrees 01 minutes 46 seconds West along the
Forty Arpent Line a distance of 3,116.03 feet to a point; thence go North 61
degrees 46 minutes 46 seconds West along the Forty Arpent Line a distance of
748.27 feet to a point; thence go North 11 degrees 26 minutes 46 seconds West a
distance of 5,384.74 feet to a point on the southerly right of way line of La.
State Highway No. 39; thence go in an Easterly direction along the Southerly
right of way line of La. State Highway No. 39 on a curve to the right with a
radius of 2,241.83 feet, an arc length of 382.34 feet, a chord bearing of South
76 degrees 14 minutes 58 seconds East and a chord distance of 381.87 feet to a
point; thence go South 56 degrees 37 minutes 17 seconds East a distance of 324.93
feet to a point; thence go South 11 degrees 26 minutes 46 seconds East a
distance of 70.50 feet to a point; thence go South 56 degrees 37 minutes 17
seconds East a distance of 1,014.06 feet to a point of curvature; thence go in
an easterly direction on a curve to the left with a radius of 2,770.00 feet, an
arc length of 682.13 feet, a chord bearing of South 63 degrees 40 minutes 34
seconds East and a chord distance of 680.41 feet to a point of tangency; thence
go South 70 degrees 43 minutes 51 seconds East a distance of 859.91 feet to a
point; thence go South 70 degrees 46 minutes 43 seconds East a distance of 1291.39
feet to the POINT OF BEGINNING.


 


All of which is shown on a plat of survey by Dufrene
Surveying & Engineering, Inc., dated June 10, 2003, revised August 1, 2003.


 


Being the property acquired by Stolthaven New Orleans,
L.L.C. from The Alabama Great Southern Railroad Company by act dated September
26, 2003, recorded in the Conveyance Office of Plaquemines Parish, Louisiana at
Book 1055, Folio 522, Entry No. 03006963.


 

















EXHIBIT A


 


TERM LOAN

PROMISSORY NOTE


 


	
  U.S.
  $150,000,000.00

  	
   

  	
  August
  13, 2004

  
	
   

  	
   

  	
  New
  York, New York

  



 


FOR
VALUE RECEIVED, each of STOLTHAVEN HOUSTON INC., a Texas corporation, and
STOLTHAVEN NEW ORLEANS LLC, a Louisiana limited liability company, as joint and
several borrowers (collectively, the “Borrowers”), hereby promises to pay to
the order of DNB NOR BANK ASA, a Norwegian banking company acting through its
New York Branch, as administrative agent and collateral agent for the Lenders
(as defined below), at its office at 200 Park Avenue, 31st Floor,
New York, New York 10166, or as it may otherwise direct, the principal sum of
One Hundred Fifty Million United States Dollars (U.S. $150,000,000.00) or,
if less, the aggregate unpaid principal amount of the Term Loan from time to
time outstanding made by the Lenders to the Borrowers pursuant to the Term Loan
and Revolving Credit Facility Agreement dated as of the 13th day
of August, 2004 (the “Credit Agreement”) by and among (i) the Borrowers,
(ii) DnB NOR Bank ASA, acting through its New York branch, as administrative
agent (in such capacity, the “Administrative Agent”) and as collateral agent,
and (iii) the banks and financial institutions listed on Schedule 1 of the
Credit Agreement (together with any bank or financial institution which becomes
a lender pursuant
to Section 10 of the Credit Agreement, the “Lenders”). The
Borrowers shall repay the indebtedness represented by this Note as provided in
Section 5 of the Credit Agreement. This Note may be prepaid on such terms as
provided in the Credit Agreement.


 


Words
and expressions used herein (including those in the foregoing paragraph) and
defined in the Credit Agreement shall have the same meaning herein as therein
defined.


 


The
Borrowers shall also pay interest on the Term Loan from the date of drawdown
until payment in full at the rates determined from time to time in accordance
with Section 6 of the Credit Agreement, which provisions are incorporated
herein with full force and effect as if they were fully set forth herein. Any
principal payment not paid when due, whether on an installment payment date or
by acceleration, shall bear interest thereafter at the Default Rate. All
interest shall accrue and be calculated on the actual number of days elapsed
and on the basis of a 360-day year.


 


Both
principal and interest are payable in Dollars to the Administrative Agent, for
the account of the Lenders, as the Administrative Agent may direct, in
immediately available same day funds.


 


The
Administrative Agent shall endorse the amount and the date of the making of the
Term Loan (and, if applicable, the conversion of the Revolver to the Term Loan
pursuant to Section 3.6 of the Credit Agreement) and any prepayment or payment
of principal hereunder on the grid annexed hereto and made a part hereof, which
endorsement shall constitute prima  facie evidence of the accuracy
of the information so endorsed; provided, however, that any
failure to endorse such information on such grid shall not in any manner affect
the obligation of the


 

















 


Borrowers to make payment of principal and interest in accordance with
the terms of the Credit Agreement and this Note.


 


If this Note or
any payment required to be made hereunder becomes due and payable on a day
which is not a Business Day, the due date thereof shall be extended until the
next following Business Day and interest shall be payable during such extension
at the rate applicable immediately prior thereto, unless such next following
Business Day falls in the following calendar month, in which case the due date
thereof shall be adjusted to the immediately preceding Business Day.


 


This
Note is the Term Loan Note referred to in the Credit Agreement and is entitled
to the security and benefits therein provided, including, but not limited to,
such security as provided in the Security Documents, as defined in the Credit
Agreement. Upon the occurrence of any Event of Default under Section 8 of the
Credit Agreement, the principal hereof and accrued interest hereon may be
declared to be (or, with respect to certain Events of Default, automatically
shall become) immediately due and payable.


 


In the
event that any holder of this Note shall institute any action for the
enforcement or the collection of this Note, there shall be immediately due and
payable, in addition to the unpaid balance hereof, all late charges and all
costs and expenses of such action, including attorneys’ fees.


 


Each
of the Borrowers hereby waives presentment, protest, demand for payment,
diligence, notice of dishonor and of nonpayment, and any and all other notices
or demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note, hereby waives and renounces all rights to the
benefits of any statute of limitations and any moratorium, appraisement,
exemption and homestead now provided or which may hereafter be provided by any
federal or state statute, including, without limitation, exemptions provided by
any federal or state statute, including, without limitation, exemptions
provided by or allowed under any  federal
or state bankruptcy or insolvency laws, both as to itself and as to all of its
property, whether real or personal, against the enforcement and collection of
the obligations evidenced by this Note and any and all extensions, renewals and
modifications hereof and hereby consents to any extensions of time, renewals,
releases of any party this Note, waiver or modification that may be granted or
consented to by the holder of this Note.


 


Each
of the Borrowers agrees that its liabilities hereunder are absolute and
unconditional without regard to the liability of any other party and that no
delay on the part of the holder hereof in exercising any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any power or right hereunder preclude other or further exercise
thereof or the exercise of any other power or right.


 


If at
any time this transaction would be usurious under applicable law, then
regardless of any provision contained in the Credit Agreement or this Note or
any other agreement made in connection with this transaction, it is agreed that
(a) the total of all consideration which constitutes interest under applicable
law that is contracted for, charged or received upon the Credit Agreement, this
Note or any other agreement shall under no


 


2

















 


circumstances exceed the maximum rate of interest authorized by
applicable law, if any, and any excess shall be credited to the Borrowers and
(b) if the Lenders elects to accelerate the maturity of, or if the Borrowers
prepay the indebtedness described in this Note, any amounts which because of
such action would constitute interest may never include more than the maximum
rate of interest authorized by applicable law and any excess interest, if any,
provided for in the Credit Agreement, in this Note or otherwise, shall be
credited to the Borrowers automatically as of the date of acceleration or
prepayment.


 


THE UNDERSIGNED, AND THE
ADMINISTRATIVE AGENT BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING IN RESPECT OF ANY MATTER
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS NOTE.


 


This
Note shall be governed by and construed in accordance with the laws of the
State of New York.


 


IN WITNESS WHEREOF, the Borrowers has executed and
delivered this Note on the date and year first above written.


 


 


	
   

  	
  STOLTHAVEN
  HOUSTON INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:
  John Greenwood

  
	
   

  	
    Title:
  Attorney-in-Fact

  



 


 


	
   

  	
  STOLTHAVEN NEW
  ORLEANS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:
  John Greenwood

  
	
   

  	
    Title:
  Attorney-in-Fact

  



 


3

















 


TERM LOAN

PAYMENTS OF PRINCIPAL


 


	
  Date

  	
   

  	
  Amount of

  Advance(1)

  	
   

  	
  Amount of Principal

  Paid or Prepaid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)   (or, if applicable, amount converted from
Revolver to Term Loan pursuant to Section 3.6 of the Credit Agreement)


 

















EXHIBIT B


 


REVOLVING CREDIT FACILITY

PROMISSORY NOTE


 


	
  U.S. $20,000,000.00

  	
   

  	
  August 13, 2004

  
	
   

  	
   

  	
  New York, New York

  



 


FOR
VALUE RECEIVED, each of STOLTHAVEN HOUSTON INC., a Texas corporation, and
STOLTHAVEN NEW ORLEANS LLC, a Louisiana limited liability company, as joint and
several borrowers (collectively, the “Borrowers”), hereby promises to pay to
the order of DNB NOR BANK ASA, a Norwegian banking company acting through its
New York Branch, as administrative agent and collateral agent for the Lenders
(as defined below), at its office at 200 Park Avenue, 31st Floor, New
York, New York 10166, or as it may otherwise direct, the principal sum of
Twenty Million United States Dollars (U.S. $20,000,000.00) or, if less,
the aggregate unpaid principal amount of the Revolver Advances from time to
time outstanding made by the Lenders to the Borrowers pursuant to the Term Loan
and Revolving Credit Facility Agreement dated as of the 13th day
of August, 2004 (the “Credit Agreement”) by and among (i) the Borrowers,
(ii) DnB NOR Bank ASA, acting through its New York branch, as administrative
agent (in such capacity, the “Administrative Agent”) and as collateral agent,
and (iii) the banks and financial institutions listed on Schedule 1 of the
Credit Agreement (together with any bank or financial institution which becomes
a lender pursuant
to Section 10 of the Credit Agreement, the “Lenders”). The
Borrowers shall repay the indebtedness represented by this Note as provided in
Section 5 of the Credit Agreement. This Note may be prepaid on such terms as
provided in the Credit Agreement.


 


Words
and expressions used herein (including those in the foregoing paragraph) and
defined in the Credit Agreement shall have the same meaning herein as therein
defined.


 


The
Borrowers shall also pay interest on the Revolver Advances from the date of
drawdown until payment in full at the rates determined from time to time in
accordance with Section 6 of the Credit Agreement, which provisions are
incorporated herein with full force and effect as if they were fully set forth
herein. Any principal payment not paid when due, whether on an installment
payment date or by acceleration, shall bear interest thereafter at the Default
Rate. All interest shall accrue and be calculated on the actual number of days
elapsed and on the basis of a 360-day year.


 


Both
principal and interest are payable in Dollars to the Administrative Agent, for
the account of the Lenders, as the Administrative Agent may direct, in
immediately available same day funds.


 


The
Administrative Agent shall endorse the amount and the date of the making of the
Revolver Advances and any prepayment or payment of principal hereunder on the
grid annexed hereto and made a part hereof, which endorsement shall constitute prima
facie evidence of the accuracy of the information so endorsed; provided,
however, that any failure to endorse such information on such grid shall
not in any manner affect the obligation of the Borrowers to make payment of
principal and interest in accordance with the terms of the Credit Agreement and
this Note.


 

















 


If this Note or
any payment required to be made hereunder becomes due and payable on a day
which is not a Business Day, the due date thereof shall be extended until the
next following Business Day and interest shall be payable during such extension
at the rate applicable immediately prior thereto, unless such next following
Business Day falls in the following calendar month, in which case the due date
thereof shall be adjusted to the immediately preceding Business Day.


 


This
Note is the Revolver Note referred to in the Credit Agreement and is entitled
to the security and benefits therein provided, including, but not limited to,
such security as provided in the Security Documents, as defined in the Credit
Agreement. Upon the occurrence of any Event of Default under Section 8 of the Credit
Agreement, the principal hereof and accrued interest hereon may be declared to
be (or, with respect to certain Events of Default, automatically shall become)
immediately due and payable.


 


In the
event that any holder of this Note shall institute any action for the
enforcement or the collection of this Note, there shall be immediately due and
payable, in addition to the unpaid balance hereof, all late charges and all
costs and expenses of such action, including attorneys’ fees.


 


Each
of the Borrowers hereby waives presentment, protest, demand for payment,
diligence, notice of dishonor and of nonpayment, and any and all other notices
or demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note, hereby waives and renounces all rights to the
benefits of any statute of limitations and any moratorium, appraisement,
exemption and homestead now provided or which may hereafter be provided by any
federal or state statute, including, without limitation, exemptions provided by
any federal or state statute, including, without limitation, exemptions
provided by or allowed under any  federal
or state bankruptcy or insolvency laws, both as to itself and as to all of its
property, whether real or personal, against the enforcement and collection of
the obligations evidenced by this Note and any and all extensions, renewals and
modifications hereof and hereby consents to any extensions of time, renewals,
releases of any party this Note, waiver or modification that may be granted or
consented to by the holder of this Note.


 


Each
of the Borrowers agrees that its liabilities hereunder are absolute and
unconditional without regard to the liability of any other party and that no
delay on the part of the holder hereof in exercising any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any power or right hereunder preclude other or further exercise
thereof or the exercise of any other power or right.


 


If at
any time this transaction would be usurious under applicable law, then
regardless of any provision contained in the Credit Agreement or this Note or
any other agreement made in connection with this transaction, it is agreed that
(a) the total of all consideration which constitutes interest under applicable
law that is contracted for, charged or received upon the Credit Agreement, this
Note or any other agreement shall under no circumstances exceed the maximum
rate of interest authorized by applicable law, if any, and any excess shall be
credited to the Borrowers and (b) if the Lenders elects to accelerate the
maturity


 


2

















 


of, or if the Borrowers prepay the indebtedness described in this Note,
any amounts which because of such action would constitute interest may never
include more than the maximum rate of interest authorized by applicable law and
any excess interest, if any, provided for in the Credit Agreement, in this Note
or otherwise, shall be credited to the Borrowers automatically as of the date
of acceleration or prepayment.


 


THE UNDERSIGNED, AND THE
ADMINISTRATIVE AGENT BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING IN RESPECT OF ANY MATTER
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS NOTE.


 


This
Note shall be governed by and construed in accordance with the laws of the
State of New York.


 


IN WITNESS WHEREOF, the Borrowers has executed and
delivered this Note on the date and year first above written.


 


	
   

  	
  STOLTHAVEN
  HOUSTON INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:
  John Greenwood

  
	
   

  	
    Title:
  Attorney-in-Fact

  



 


 


	
   

  	
  STOLTHAVEN NEW
  ORLEANS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:
  John Greenwood

  
	
   

  	
    Title:
  Attorney-in-Fact

  



 


3

















 


REVOLVER ADVANCES

PAYMENTS OF PRINCIPAL


 


	
  Date

  	
   

  	
  Amount of

  Revolver

  Advance

  	
   

  	
  Amount of Principal

  Paid or Prepaid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Notation

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EXHIBIT C


 


GUARANTY


 


 


STOLT-NIELSEN S.A.


and


STOLT-NIELSEN
TRANSPORTATION GROUP LTD.


 


 


in favor of


 


 


DNB NOR BANK ASA,

NEW YORK BRANCH


 


 


August 13, 2004


 

















 


GUARANTY


 


THIS GUARANTY, dated as of August 13, 2004 (as
amended, modified, and/or supplemented from time to time, this “Guaranty”),
is made jointly and severally by STOLT-NIELSEN S.A., a Luxembourg corporation,
and STOLT-NIELSEN TRANSPORTATION GROUP LTD., a Liberian corporation
(collectively the “Guarantors” and each, individually, a “Guarantor”),
in favor of DNB NOR BANK ASA, New York Branch, as collateral agent for the
Lenders (as defined the Credit Agreement referred to below).


 


WHEREAS


 


A.            Pursuant to a term loan and revolving credit facility
agreement dated August 13, 2004 (the “Credit Agreement”) made by and among
(i) Stolthaven Houston, Inc., a Texas corporation (“Stolthaven Houston”),
and Stolthaven New Orleans LLC, a Louisiana limited liability company
(“Stolthaven New Orleans”), as borrowers (collectively, the “Borrowers”), (ii)
the banks and financial institutions listed on Schedule 1 of the Credit
Agreement, as lenders (together with any bank or financial institution which
becomes a Lender pursuant to Section 10 of the Credit Agreement, the
“Lenders”), (iii) DnB NOR Bank ASA, acting through its New York Branch (“DnB
NOR”), as administrative agent for the Lenders (in such capacity, the
“Administrative Agent”), and (iv) DnB NOR as collateral agent for the Lenders
(in such capacity, the “Collateral Agent” and, together with the Administrative
Agent, the “Agents”), the Agents have agreed to serve in their respective
capacities under the Credit Agreement and the Lenders have agreed to provide to
the Borrowers a secured term loan in the amount of up to US$150,000,000 (the
“Term Loan”) and a secured revolving credit facility in the amount of up to
US$20,000,000 (the “Revolver” and together with the Term Loan, the “Credit
Facilities”);


 


B.            The Guarantors intend this Guaranty to be an inducement
for the Creditors (each a “Guaranteed Party” and collectively the “Guaranteed
Parties”) to enter into the transactions contemplated by the Credit
Agreement, the Notes and the Security Documents (collectively, the “Operative
Documents” and each an “Operative Document”).


 


C.            Each
of the Borrowers and Stolt-Nielsen Transportation Group Ltd. is a wholly-owned
Subsidiary of Stolt-Nielsen S.A., and each of the Borrowers is a Subsidiary of
Stolt-Nielsen Transportation Group, Ltd. and each Guarantor will obtain
benefits from the transactions contemplated by the Operative Documents and,
accordingly, desires to execute this Guaranty in order to satisfy the
conditions described in the Operative Documents.


 


NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound by this Guaranty, each Guarantor, jointly and severally, hereby
agrees to be bound as follows:


 


1.             Guaranty.
Each Guarantor, as primary obligor and not merely as surety, jointly and
severally, irrevocably, unconditionally and absolutely guarantees to the Collateral
Agent, for the account of the Guaranteed Parties, on first demand the due and
punctual payment, when due, whether by acceleration or otherwise, of all sums
owing by the Borrowers to any of


 

















 


the Guaranteed Parties
under the Operative Documents, together with any and all out-of-pocket legal
costs and other expenses incurred in connection therewith by any of the
Guaranteed Parties and, in case of extension of time of payment or renewal in
whole or in part of the said obligations of the Borrowers, the prompt payment
when due of all said sums according to such extension or extensions or renewal
or renewals, whether by acceleration or otherwise.


 


2.             Nature
of the Guaranty. (a) This Guaranty is a guaranty of payment and not of
collection only. This Guaranty shall be irrevocable, and in all events shall be
continuing, unconditional and absolute, and if any sums stated in the Operative
Documents to be payable by the Borrowers shall not be paid promptly when due,
or any other obligation, covenant, term, condition or undertaking of the
Borrowers contained in any Operative Document shall not be performed, complied
with or observed in accordance with said Operative Document, then in each such
instance upon demand of payment, performance, compliance or observance, made by
any Guaranteed Party to either Guarantor, such Guarantor shall pay, perform,
comply with or observe the same strictly in accordance with the provisions of
the Operative Documents, regardless of any defenses or rights of set-off or
counterclaim, regardless of whether the Collateral Agent or any other
Guaranteed Party shall have taken any steps to enforce its rights against the
other Guarantor, the Borrowers or any other Person, to collect such sums, or
any part thereof, and regardless of any other condition or contingency. Each
Guarantor, jointly and severally, also agrees to pay to the relevant Guaranteed
Party such further amounts as shall be sufficient to pay the reasonable costs
and expense of collecting such sums, or any part thereof, or of otherwise
enforcing this Guaranty, including, in any case, reasonable, documented
compensation to its attorneys for all services rendered in that connection.


 


(b)           Any
and all payments by either Guarantor hereunder shall be made free and clear of,
and without deduction or withholding for or on account of, any and all Taxes
(other than Excluded Taxes), monetary transfer fees or other amounts except to
the extent such deduction or withholding of any Tax is required by applicable
Law. If either Guarantor shall be required by applicable Law to deduct or
withhold any Tax or other amount from or in respect of any sum payable
hereunder to or for the benefit of any Guaranteed Party, such Guarantor shall
pay to such Guaranteed Party, such additional amount as shall be necessary to
enable such Guaranteed Party to receive, after such withholding (including any
withholding with respect to such additional amount), the amount it would have
received if such withholding had not been required. Each Guarantor shall
prepare and file in a timely and proper manner all reports and other documents
required by applicable Law to be filed with respect to any Tax withheld by such
Guarantor and shall deliver a copy of such document to the Guaranteed Parties
together with documentary evidence satisfactory to such Guaranteed Parties of
such Guarantor’s proper and timely payment of such Tax.


 


3.             Waivers,
Covenants, Undertakings. Each Guarantor hereby unconditionally (a) waives
any requirement that any Guaranteed Party first makes demand upon, or seek to
enforce remedies against, the Borrowers or any other Person or any property of
the Borrowers or such other Person before demanding payment from, or seeking to
enforce this Guaranty against, either Guarantor; (b) covenants that this
Guaranty will not be discharged except by complete and indefeasible
satisfaction of all obligations of the Borrowers contained in the Operative
Documents; (c) agrees that this Guaranty shall remain in full force and effect
without regard to, and shall not be affected or impaired by, any invalidity,
illegality, irregularity


 


2

















 


or unenforceability in
whole or in part of any Operative Document, or any limitation of the liability
of the Borrowers or either Guarantor thereunder, or any limitation on the
method or terms of payment thereunder which may now or hereafter be caused or
imposed in any manner whatsoever; (d) waives diligence, presentment and protest
with respect to the payment of any amount at any time payable under or in
connection with the Operative Documents; and (e) agrees that each and every
right, power and remedy given under this Guaranty or any other Operative
Document shall be cumulative and not exclusive, and be in addition to all other
rights, powers and remedies now or hereafter granted or otherwise existing.


 


4.             Subrogation.
Upon making any payment under this Guaranty, the paying Guarantor shall be
subrogated to the rights of the payee against the Borrowers with respect to
such payment; provided, that such Guarantor’s right of subrogation shall
be subordinate in right of payment to the rights of the Guaranteed Parties, and
each Guarantor covenants and agrees that it shall not enforce any payment by
way of subrogation until all sums payable under the Operative Documents have
been paid in full and all obligations of each Guarantor hereunder have been
performed.


 


5.             Preservation
of Rights. The obligations, undertakings and conditions to be performed or
observed by each Guarantor under this Guaranty shall not be affected or
impaired by reason of the happening from time to time of any of the following
with respect to the Operative Documents, all of which may occur without notice
to, or the further consent of, either Guarantor:


 


(a)           the
waiver by any Guaranteed Party or any other Person of the observance or
performance by the Borrowers or either Guarantor of any of the obligations,
undertakings or conditions contained in any of the Operative Documents, except
to the extent of such waiver;


 


(b)           the
extension, in whole or in part, of the time for payment of any amount owing or
payable under any of the Operative Documents or of any other sums or
obligations under or arising out of or on account of any Operative Document,
except to the extent of such extension;


 


(c)           the
supplement, modification or amendment (whether material or otherwise) of any of
the obligations of the Borrowers or either Guarantor under any of the Operative
Documents, except to the extent of such supplement, modification or amendment;


 


(d)           any
failure, omission, delay or lack on the part of any Guaranteed Party, or any
other Person, to enforce, assert or exercise any right, power or remedy
conferred on any Guaranteed Party or any other Person in any of the Operative
Documents or any action on the part of any Guaranteed Party or any other Person
granting an indulgence or extension in any form, except to the extent of such
extension;


 


(e)           any
action, inaction or election of remedies by any Guaranteed Party or any other
Person which results in any impairment or destruction of any subrogation rights


 


3

















 


of
either Guarantor, or any rights of either Guarantor to proceed against any
other Person for reimbursement;


 


(f)            the
surrender by any Guaranteed Party or any other Person of any security at any
time held for the performance or observance of any of the agreements,
covenants, terms or conditions contained in any of the Operative Documents;


 


(g)           any
event or circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor, indemnitor or surety under the laws of the
State of New York, the Duchy of Luxembourg, the Republic of Liberia, or any
other jurisdiction;


 


(h)           any
other circumstances whatsoever (with or without notice to or knowledge of
either Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of either Guarantor with respect to its
obligations hereunder or under the other Operative Documents, in bankruptcy or
in any other instance, except based on payment or performance;


 


(i)            any
change in circumstances, whether or not foreseen or foreseeable, whether or not
imputable to either Guarantor or the Borrowers and whether or not such change
in circumstances shall or might in any manner and to any extent vary the risk
of either Guarantor hereunder;


 


(j)            any
lease or sub-lease or other use of any Terminal, or any sale, transfer or
disposition, or grant of security interest, mortgaging or assignment by the
Borrowers of any of its interest, rights or obligations, in, to and under or
with respect to any Terminal, whether or not permitted by the terms of any of
the Operative Documents;


 


(k)           any
assignment, mortgaging or grant of security interest by a Borrower, or its
successors or assigns, of all or any part of its respective rights, title and
interests in any Terminal, or other rights, title and interest in the property
of the Borrowers;


 


(l)            any
consolidation or merger of the Borrowers or either Guarantor, whether permitted
under the terms of the Operative Documents or otherwise, or the sale, transfer
or other disposition by the Borrowers or either Guarantor, of all or
substantially all of its respective assets and/or liabilities or any change in
the ownership of the Borrowers or either Guarantor;


 


(m)          the
voluntary or involuntary liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of the Borrowers or either Guarantor,
or any other similar proceeding affecting the status, existence, assets or
obligations of the Borrowers or either Guarantor, or the limitation of damages
for the breach of, or the disaffirmation of, any of the Operative Documents in
any such proceeding;


 


(n)           any
termination, invalidity or unenforceability, for any reason, of any Operative
Document, or of any provision of any thereof, or of any of the obligations


 


4

















 


thereunder,
or any defect in the Borrower’s title to, or any Mortgage or any other security
interest granted in, any Terminal;


 


(o)           any
other cause, whether similar or dissimilar to the foregoing; it being the
intention of each Guarantor that this Guaranty be joint and several,
irrevocable, absolute and unconditional in any and all circumstances and that
this Guaranty shall be discharged only by the indefeasible payment in full of
all sums and the performance of all obligations with respect to which this
Guaranty relates.


 


6.             Independent
Obligations. The obligations of each Guarantor hereunder are independent of
the obligations of the other Guarantor, and a separate action may be brought
and prosecuted against each Guarantor whether or not action is brought against
the other Guarantor and whether or not the other Guarantor be joined in any
such action or actions.


 


7.             Notice
of Acceptance Waived. Notice of acceptance of this Guaranty and notice of
the execution and delivery of any other instrument referred to in this Guaranty
are hereby waived by each Guarantor.


 


8.             Insolvency;
No Partial Satisfaction. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the obligations to be paid, is rescinded or must otherwise be restored
or returned by any Person, upon the insolvency, bankruptcy or reorganization of
either Guarantor, or otherwise, all as though such payment had not been made.
The provisions of this paragraph shall survive the termination of this
Guaranty. This Guaranty shall remain in full force and effect until payment in
full of all sums payable by the Borrowers under the Operative Documents and the
performance in full of all obligations of each Guarantor, in accordance with
the provisions of this Guaranty. Each Guarantor’s payment obligations hereunder
shall be deemed satisfied upon the actual and timely receipt by the relevant
Guaranteed Party or its assignee of all amounts payable hereunder in full in
cash (in United States currency).


 


9.             Severability.
If any provision of this Guaranty or any application thereof shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions and any other application thereof shall not in any way be
affected or impaired thereby.


 


10.           Benefit
of Guaranty; Successors and Assigns. This Guaranty shall be binding upon
each Guarantor and its successors and shall inure to the benefit of, and be
enforceable by, each Guaranteed Party and its respective successors and assigns
as to the obligations owed it and guaranteed hereunder. This Guaranty may not
be changed, waived, discharged or terminated orally, but only by a statement in
writing signed by the Collateral Agent. This Guaranty may be enforced as to any
one or more defaults either separately or cumulatively.


 


11.           Governing Law. THIS GUARANTY SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.


 


5

















 


12.           Submission o Jurisdiction. Each
Guarantor hereby irrevocably submits to the jurisdiction of the courts of the
State of New York and of the United States District Court for the Southern
District of New York in any action or proceeding brought against it by any of
the Creditors under this Guaranty or under any document delivered hereunder and
hereby irrevocably agrees that valid service of summons or other legal process
on it may be effected by serving a copy of the summons and other legal process
in any such action or proceeding on each Guarantor by mailing or delivering the
same by hand to each Guarantor at the address indicated for notices in
Section 14. The service, as herein provided, of such summons or other
legal process in any such action or proceeding shall be deemed personal service
and accepted by each Guarantor as such, and shall be legal and binding upon
each Guarantor for all the purposes of any such action or proceeding. Final
judgment (a certified or exemplified copy of which shall be conclusive evidence
of the fact and of the amount of any indebtedness of each Guarantor to the
Collateral Agent) against each Guarantor in any such legal action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment. Each Guarantor will advise the Collateral Agent promptly of any
change of address for the purpose of service of process. Notwithstanding
anything herein to the contrary, the Collateral Agent may bring any legal
action or proceeding in any other appropriate jurisdiction.


 


13.           Waiver of Trial by Jury. IN ANY ACTION
OR PROCEEDING UNDER OR RELATED TO THIS GUARANTY, THE OTHER OPERATIVE DOCUMENTS
OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH GUARANTOR HEREBY
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.


 


14.           Notices.
Notices and other communications hereunder shall be in writing and may be given
or made by facsimile as follows:


 


If to a Guarantor:


 


c/o
Stolt-Nielsen Inc.


8
Sound Shore Drive


Greenwich,
CT  06836


Attention:  Howard J. Merkel


Fax:
(203) 661-7695


 


If to the Collateral
Agent:


 


200
Park Avenue, 31st Floor


New
York, New York 10166


Attention:
Sanjiv Nayar


Fax:
(212) 681-3900


 


6

















 


or to such other address
as any party shall from time to time specify in writing. Any notice sent by
facsimile shall be confirmed by letter dispatched as soon as practicable
thereafter.


 


Every notice or demand
shall, except so far as otherwise expressly provided by this Guaranty, be
deemed to have been received (provided that it is received prior to 2 p.m.
New York time), (i) if given by facsimile, on the date of dispatch thereof
(provided that if the date of dispatch is not a Business Day in the locality of
the party to whom such notice or communication is sent it shall be deemed to
have been received on the next following Business Day in such locality), and
(ii) if given by mail, prepaid overnight courier or any other means, when
received at the address specified in this Section or when delivery at such
address is refused.


 


15.           Reliance.
The obligations of the Borrowers under the Operative Documents shall
conclusively be deemed to have been created, contracted, incurred, renewed,
extended, amended or waived in reliance upon this Guaranty, and all dealings
between either Guarantor and any Guaranteed Party (or its assigns) shall
likewise be conclusively presumed to have been completed or consummated in
reliance upon this Guaranty.


 


16.           Consent
to Operative Documents. Each Guarantor agrees with, and consents to, all
the terms, conditions, duties, obligations and other agreements of the
Borrowers as set forth in the Credit Agreement and the other Operative
Documents.


 


17.           Headings.
In this Guaranty, section headings are inserted for convenience of reference
only and shall be ignored in the interpretation thereof.


 


7

















 


IN WITNESS WHEREOF, each Guarantor has caused
this Guaranty to be duly executed as of the day and year first above written.


 


	
   

  	
  STOLT-NIELSEN S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: John Greenwood

  
	
   

  	
  Title:  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
  STOLT-NIELSEN
  TRANSPORTATION GROUP

  LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: John Greenwood

  
	
   

  	
  Title:  Attorney-in-Fact

  



 






 













EXHIBIT D


 


	
  MORTGAGE, SECURITY AGREEMENT

  	
   

  	
  *

  	
   

  	
  UNITED STATES OF
  AMERICA

  
	
  AND ASSIGNMENT OF

  	
   

  	
   

  	
   

  	
   

  
	
  RENTS AND LEASES

  	
   

  	
  *

  	
   

  	
  STATE OF NEW
  YORK

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BY

  	
   

  	
  *

  	
   

  	
  COUNTY OF NEW
  YORK

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  STOLTHAVEN NEW ORLEANS, LLC

  	
   

  	
  *

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IN FAVOR OF

  	
   

  	
  *

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DNB NOR BANK ASA, NEW YORK

  	
   

  	
  *

  	
   

  	
   

  
	
  BRANCH, AS COLLATERAL AGENT

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *

  	
  *

  	
  *

  	
  *

  	
  *

  	
  *

  	
   

  	
  *

  	
   

  	
   

  
										



 


BE IT
KNOWN, that on this 13th day of August, 2004, before me, the
undersigned Notary Public, duly commissioned and qualified, personally came and
appeared


 


STOLTHAVEN NEW ORLEANS, LLC, a Louisiana limited liability company,
having federal taxpayer identification number 72-1464261 and a mailing address
of 2444 English Turn Road, Braithwaite, Louisiana 70040, appearing herein
through its duly authorized agent pursuant to unanimous written consent adopted
by its sole member and manager, a certified copy of which is annexed hereto (“Grantor”),


 


who declared that Grantor
does by these presents declare and acknowledge an indebtedness unto:


 


DNB NOR BANK ASA, a Norwegian banking company, acting through its New
York Branch, having federal taxpayer identification number                     
and a mailing address of 200 Park Avenue, 31st Floor, New York, New
York 10166, in its capacity as Collateral Agent (in such capacity, together
with its successors and assigns in such capacity, the “Collateral
Agent” or the “Mortgagee”)
for itself and the Lenders (hereinafter defined) and the Creditors (hereinafter
defined) party to the Credit Agreement (hereinafter defined).


 

















 


ARTICLE I


MORTGAGE AND SECURITY INTEREST HYPOTHECATION;


SECURED INDEBTEDNESS


 


1.1                                 Hypothecation. Grantor, in order to secure the payment
of the Indebtedness (as hereinafter defined) and the performance of the
obligations, covenants, agreements and undertakings of Grantor hereinafter described,
does hereby GRANT, BARGAIN, SELL, CONVEY, TRANSFER, ASSIGN, PLEDGE , AFFECT,
HYPOTHECATE, SPECIALLY MORTGAGE and SET OVER to Mortgagee, and grant a
continuing security interest to Mortgagee in, all for the ratable benefit of
the Lenders (hereinafter defined), the real estate (the “Land”)
situated in the Parish of Plaquemines and State of Louisiana described in Exhibit “A” attached hereto
and made a part hereof, TOGETHER WITH all of Grantor’s interests, rights
and titles in and to the following, whether now owned or hereafter acquired by
Grantor: (a) all buildings, structures, component parts, other
constructions and other improvements now or hereafter attached to or placed,
erected, constructed or developed on the Land together with all component parts
of the foregoing and all appurtenances to such buildings, structures or
improvements, including sidewalks, utility pipes, conduits, docks, tanks and
lines, parking areas and roadways, and including all alterations, improvements,
modifications, renovations and other additions to or changes in thereto at any
time (the “Improvements”); (b) all
materials, equipment, fixtures, furnishings, inventory, apparatus, fittings and
articles of Personal Property (hereinafter defined) whatsoever now or hereafter
delivered to, attached to, installed in, or used in or about the Improvements
or which are necessary or useful for the complete use and occupancy of the
Improvements for the purposes for which they were or are to be attached,
placed, erected, constructed or developed, or which Personal Property is or may be
used in the development of the Improvements (including, without limiting the
generality of the foregoing, , all desks, chairs, filing cabinets, tables, book
cases, credenzas, wall hangings and similar items, power feed wiring, service
piping, storage tanks, product piping, pumps, tank truck racks, foam piping
system, chemical sewer system, wastewater treatment facility, air emission
system, scales, compressed air system, foam pumper truck, crane truck, backhoe,
bulldozer, rail car mover, forklift, spill boat, vacuum truck and cranes), and
all renewals of or replacements or substitutions for any of the foregoing
whether or not the same shall be attached to the Land or Improvements; (c) all
water and water rights, timber, crops, and minerals and equipment now or
hereafter delivered to and intended to be installed in or on the Land or
Improvements; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Land or Improvements; (e) all
security deposits and advance rentals under any lease agreements now or at any
time hereafter arising from or by virtue of any transactions related to the
Land, Improvements or the Personal Property and held by or for the benefit of Grantor;
(f) all monetary deposits which Grantor has given to any public or private
utility with respect to utility services furnished to the Land or Improvements;
(g) all rents, issues, profits, revenues, royalties, bonuses or other
benefits of the Land, the Improvements or the Personal Property, including,
without limitation, cash or securities deposited pursuant to leases of all or
any part of the Land, Improvements or Personal Property; (h) all
proceeds (including premium refunds) of each policy


 


2

















 


of insurance relating to
the Land, Improvements or Personal Property (including without limitation as
provided in La. R.S. 9:5386); (i) all proceeds from the taking of the
Land, Improvements, Personal Property or any part thereof or any interest
or right or estate appurtenant thereto by eminent domain or by purchase in lieu
thereof; (j) all Grantor’s rights (but not its obligations) under any contracts
related to the Land or Improvements; (k) all Grantor’s rights (but not its
obligations) under any documents, contract rights, commitments, accounts,
general intangibles (including trademarks, trade names and symbols used in
connection therewith) arising by virtue of any transactions related to the
Land, Improvements or Personal Property; (l) all deposits, bank accounts,
funds, instruments, notes or chattel paper arising from or related to the Land,
Improvements or Personal Property; (m) all permits, licenses, franchises,
certificates and other rights and privileges obtained in connection with the
Land, Improvements or Personal Property; (n) all plans, specifications, maps,
surveys, reports, architectural, engineering and construction contracts, books
of account, insurance policies and other documents, of whatever kind or
character, relating to the use, construction upon, occupancy, leasing, sale or
operation of the Land or Improvements; (o) all oil, gas and other hydrocarbons
and other minerals produced from or allocated to the Land or Improvements and
all products processed or obtained therefrom, the proceeds thereof, and all
accounts and general intangibles under which such proceeds may arise and
all proceeds of the Personal Property; (p) all agreements, easements,
servitudes and rights of way or use, rights of ingress or egress, privileges,
appurtenances, tenements, hereditaments, prescriptions, advantages and other
rights and benefits at any time belonging to, pertaining to or used in
connection with the Land or Improvements; (q) all right, title and interest of
Grantor in and to all streets, roads, ways, alleys, vaults, public places,
easements and rights-of-way, existing or proposed, public or private,
adjoining, abutting, adjacent or contiguous to or used in connection with,
belonging or pertaining to the Land or any part thereof; and (r) all
permits, licenses, rights, estates, powers, privileges and interests of
whatever kind or character, whether or not of record, appurtenant or incident
to the foregoing. All of the personal property of Grantor which is related in
anyway to the Land and/or the Improvements and all fixtures, accessions and
appurtenances thereto and all renewals or replacements of or substitutions
therefore, and all of the foregoing property above which is personal property
is herein collectively referred to as the “Personal Property”,
and all of the above is herein collectively referred to as the “Mortgaged Property”. If the estate
of Grantor in any of the above-described property is a leasehold estate (“Leasehold Estate”), this conveyance
shall include, and the lien and security interest created hereby shall
encumber, all additional title, estate, interest and other rights that may hereafter
be acquired by Grantor in the property demised under the Leasehold Estate.


 


The
Mortgaged Property shall remain so specially mortgaged, affected and
hypothecated unto and in favor of the Collateral Agent until the full and final
payment or discharge of all of the Indebtedness, and the Grantor is herein and
hereby bound and obligated not to sell or alienate the Mortgaged Property to
the prejudice of this act.


 


The
Collateral Agent shall have all of the rights and remedies with respect to the
Personal Property as provided in this Mortgage or at law or in equity,
including without limitation, the remedies provided under Paragraph 5.8
of this Mortgage.


 


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1.2                                 Secured Indebtedness. This Mortgage, Security Agreement and Assignment of
Rents and Leases (the “Mortgage”)
is made to secure and enforce the payment of the following obligations,
indebtedness, promissory notes and liabilities: (a) that certain term loan
and revolving credit facility agreement dated August 13, 2004 (as amended,
modified, supplemented or restated from time to time, the “Credit
Agreement”) made by and among (i) the Grantor and
Stolthaven Houston Inc., a Texas corporation (“Stolthaven
Houston”), as borrowers (collectively, the “Borrowers”),
(ii) the banks and financial institutions listed on Schedule 1 of the
Credit Agreement, as lenders (together with any bank or financial institution
which becomes a Lender pursuant to Article 10 of the Credit Agreement, the
“Lenders”), (iii) DnB NOR Bank
ASA, acting through its New York Branch (“DnB NOR”),
as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and (iv) the
Collateral Agent, pursuant to which the Lenders have agreed to provide to the
Borrowers a secured term loan in the amount of up to US$150,000,000 (the “Term Loan”) and a secured revolving
credit facility in the amount of up to US$20,000,000 (the “Revolver”);
(b) that certain promissory note dated August 13, 2004 with respect
to the Term Loan in the original principal amount of One Hundred Fifty Million
and No/100 DOLLARS (US$150,000,000.00), made by Grantor and Stolthaven Houston,
jointly and severally and payable to the order of the Administrative Agent,
with interest at the rate or rates therein provided, with principal, interest
and other sums being payable as therein provided; (c) that certain
promissory note dated August 13, 2004 with respect to the Revolver in the
original principal amount of Twenty Million and No/100 Dollars
(US$20,000,000.00) made by Grantor and Stolthaven Houston, jointly and
severally, and payable to the order of the Administrative Agent, with interest
at the rate or rates therein provided, with principal, interest and other sums
being payable as therein provided (such promissory notes referenced in the
preceding clause (b) and this clause (c) and all modifications,
increases, renewals or extensions thereof, in whole or in part, and all other
notes given in substitution therefor or in modification, increase, renewal or
extension thereof, in whole or in part, are collectively referred to herein as
the “Notes”, and the Administrative
Agent as said payee, the Collateral Agent, the Lenders and all subsequent
holders of the Notes or any part thereof or any of the Indebtedness, as
hereinafter defined, are collectively referred to herein as the “Creditors”); and (d) all
future loans and advances made by a Creditor to Grantor in connection with the
Credit Agreement and all other indebtedness, obligations and liabilities of
every kind and character of Grantor now or hereafter existing in favor of the
Creditors in connection with the Credit Agreement. The indebtedness,
obligations, and liabilities referred to in this Paragraph are hereinafter
collectively referred to as the “Indebtedness.”  This Mortgage, the Notes, the Credit
Agreement and any other instruments, documents and agreements now or hereafter
evidencing, securing, governing, guaranteeing and/or pertaining to the
Indebtedness or any part thereof are hereinafter collectively referred to
as the “Loan Documents.”


 


1.3                                 Defined Terms. Capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.


 


4

















 


ARTICLE II


REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS OF GRANTOR


 


2.1                                 Representations and
Warranties. Grantor
does hereby represent and warrant to the Collateral Agent as follows:


 


(a)                                  Financial Matters. Grantor is solvent, is not bankrupt and has no
outstanding liens, suits, garnishments, bankruptcies or court actions which
could render Grantor insolvent or bankrupt. There has not been filed by or
against Grantor a petition in bankruptcy or a petition or answer seeking an
assignment for the benefit of creditors, the appointment of a receiver,
Mortgagee, custodian or liquidator with respect to Grantor or any portion of
Grantor’s property, reorganization, arrangement, rearrangement, composition,
extension, liquidation or dissolution or similar relief under the United States
Bankruptcy Code or any state law. All reports, statements and other data
furnished by Grantor to the Creditors in connection with the loan evidenced by
the Notes are true and correct in all material respects and do not omit to
state any fact or circumstance necessary to make the statements contained
therein not misleading. No material adverse change has occurred since the dates
of such reports, statements and other data in the financial condition of
Grantor or of any tenant under leases described in such reports, statements and
other data. For the purposes of this Paragraph, Grantor shall also include any
joint venturer or general partner of Grantor.


 


(b)                                 Title and Authority. Grantor is the lawful owner of good and indefeasible
fee simple and marketable title to those tracts which constitute part of
the Land and are described as the fee tracts on Exhibit A to this Mortgage,
of good and indefeasible easement estates in and to those tracts which
constitute part of the Land and are described as the easement tracts on Exhibit A
to this Mortgage, and the Improvements and has good right and authority to
grant, bargain, sell, transfer, assign and mortgage the Land and Improvements
and to grant a security interest in the Personal Property. Grantor does not do
business with respect to the Mortgaged Property under any trade name.


 


(c)                                  Permitted Encumbrances. The Mortgaged Property is free and clear from all
liens, security interests and encumbrances except the lien and security
interest evidenced hereby and, as applicable, (i) the liens and/or
encumbrances set forth in Exhibit “B”
attached hereto and made a part hereof, if any, or (ii) the matters,
if any, set forth as exceptions on Schedule B of the Policy (as defined
hereinbelow), if any, or (iii) such liens or other encumbrances, if any,
as are permitted by the Credit Agreement or (iv) if no Exhibit “B” is
attached hereto and no Policy is issued, then any liens and/or encumbrances
affecting the Mortgaged Property appearing in the Real Property Records of the
parish(es) in which the Land is situated, but only to the extent the same are
valid and subsisting (hereinafter called the “Permitted
Encumbrances”). There are no mechanic’s or materialmen’s liens,
lienable bills or other claims constituting a lien on the


 


5

















 


Mortgaged
Property, or any part thereof other than permitted under the Credit
Agreement.


 


(d)                                 No Financing Statement. There is no financing statement covering all or any part of
the Mortgaged Property or its proceeds on file in any public office which has
not been terminated or assigned to the Collateral Agent.


 


(e)                                  Location of Personal
Property. All
tangible Personal Property is located on the Land.


 


(f)                                    No Homestead. No portion of the Mortgaged Property is being used as
Grantor’s business or residential homestead.


 


(g)                                 No Default or Violation. The execution, delivery and performance of this
Mortgage, the Notes and all of the other Loan Documents do not contravene,
result in a breach of or constitute a default under any mortgage, deed of
trust, lease, promissory note, loan agreement or other contract or agreement to
which Grantor is a party or by which Grantor or any of its properties may be
bound or affected and do not violate or contravene any law, order, decree, rule or
regulation to which Grantor is subject.


 


(h)                                 Compliance with Covenants
and Laws. The
Mortgaged Property and the intended use thereof by Grantor comply (except where
failure to comply would not alone or in the aggregate result in a Material
Adverse Effect) with all applicable restrictive covenants, zoning ordinances
and building codes, flood disaster laws, applicable health and environmental
laws and regulations and all other applicable laws, statutes, ordinances,
rules, regulations, orders, determinations and court decisions, including,
without limitation, the Americans With Disabilities Act of 1990 and the Fair
Housing Amendments Act of 1988, 42 U.S.C. §§3601 et. seq. (all of
the foregoing hereinafter sometimes collectively referred to as “Applicable Laws”), without reliance
upon grandfather provisions or adjacent or other properties. Grantor has
obtained all requisite zoning, utility, building, health and operating permits
from each governmental authority or municipality having jurisdiction over the
Mortgaged Property. All engineering specifications with respect to the
Mortgaged Property are within applicable environmental standards.


 


(i)                                     Environmental. Without limitation of any of the foregoing, no
asbestos, material containing asbestos which is or may become friable or
material containing asbestos deemed hazardous by Applicable Laws has been
installed in the Mortgaged Property and the Mortgaged Property and Grantor are
not in violation of or subject to any existing, pending or, to the best
knowledge of Grantor, threatened investigation or inquiry by any governmental
authority or to any remedial obligations under any Applicable Laws pertaining
to health or the environment (such Applicable Laws as they now exist or are
hereafter enacted and/or amended hereinafter sometimes collectively referred to
as “Applicable Environmental Laws”),
including without limitation, the Comprehensive


 


6

















 


Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (collectively, together with any
subsequent amendments hereinafter referred to as “CERCLA”),
the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil
Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (collectively, together with any
subsequent amendments hereinafter called “RCRA”), the
Louisiana Environmental Quality Act, La. R.S. 30: 2001, et seq., except where
any such violation, investigation or inquiry (if adversely determined against
the Grantor) or remedial obligation would not alone or in the aggregate result
in a Material Adverse Effect, and this representation would continue to be true
and correct following disclosure to the applicable governmental authorities of
all relevant facts, conditions and circumstances, if any, pertaining to the
Mortgaged Property and Grantor. Grantor has obtained all permits, licenses or
similar authorizations required to construct, occupy, operate or use any
buildings, improvements, fixtures and equipment forming a part of the
Mortgaged Property by reason of any Applicable Environmental Laws. Grantor
undertook, at the time of acquisition of the Mortgaged Property, all
appropriate inquiry into the previous ownership and uses of the Mortgaged
Property consistent with good commercial or customary practice to determine
that the Mortgaged Property, at the time of Grantor’s purchase of same, was in
material compliance with all Applicable Environmental Laws. Grantor has taken
all steps necessary to determine and has determined that no hazardous
substances or solid wastes have been disposed of or otherwise released on or to
the Mortgaged Property. The use which Grantor makes and intends to make of the
Mortgaged Property will not result in the disposal or other release of any
hazardous substance or solid waste on or to the Mortgaged Property. The terms “hazardous substance” and “release” as used in this Mortgage
shall have the meanings specified in CERCLA, and the terms “solid waste” and “disposal” (or “disposed”)
shall have the meanings specified in RCRA; provided, in the event either CERCLA
or RCRA is amended so as to broaden the meaning of any term defined thereby,
then such broader meaning shall apply subsequent to the effective date of such
amendment and provided further, to the extent that the laws of the State of
Louisiana establish a meaning for the terms “hazardous
substance,” “release,” “solid waste,” or “disposal” (or “disposed”)
which is broader than that specified in either CERCLA or RCRA, such broader
meaning shall apply.


 


(j)                                     No Suits. Except as otherwise disclosed to the Collateral Agent
in writing, there are no judicial or administrative actions, suits or
proceedings pending or, to the best of Grantor’s knowledge, threatened against
or affecting Grantor, any other person liable, directly or indirectly, for the
Indebtedness, or the Mortgaged Property, either (i) involving the
validity, enforceability or priority of any of the Loan Documents or (ii) if
adversely determined could (whether individually or when aggregated with other
such actions suits or proceedings) be reasonably expected to have a Material
Adverse Effect.


 


(k)                                  Condition of Property. The Mortgaged Property is served by electric, gas,
storm and sanitary sewers, sanitary water supply, telephone and other utilities


 


7

















 


required
for the use thereof as represented by Grantor at or within the boundary lines
of the Mortgaged Property. All streets, alleys and easements necessary to serve
the Mortgaged Property for the use represented by Grantor have been completed
and are serviceable and such streets have been dedicated and accepted by
applicable governmental entities. As of the date hereof, the Mortgaged Property
is in good condition and repair with no material deferred maintenance and is
free from damage caused by fire or other casualty. Grantor is aware of no
latent or patent structural or other significant defect or deficiency in the
Mortgaged Property. Design and as-built conditions of the Mortgaged Property
are such that no drainage or surface or other water will drain across or rest
upon either the Mortgaged Property or land of others. To the best of Grantor’s
knowledge after due inquiry and investigation, none of the improvements on the
Mortgaged Property create an encroachment over, across or upon any of the
Mortgaged Property boundary lines, rights of way or easements and no buildings
or other improvements on adjoining land create such an encroachment other than
as shown on that certain survey of a portion of the Land prepared by Dufrene
Surveying and Engineering Inc. (“Dufrene”) last revised August 4, 2000 and
that certain survey of a portion of the Land prepared by Dufrene last revised August 1,
2003.


 


(l)                                     Organization. Grantor is duly incorporated and validly existing under
the laws of the state of its incorporation and is duly qualified to do business
in the State of Louisiana. Grantor has all requisite power and has, except
where failure to obtain would not alone or in the aggregate result in a
Material Adverse Effect, all governmental certificates of authority, licenses,
permits, qualifications and other documentation to own, lease and operate its
properties and to carry on its business as now conducted and as contemplated to
be conducted.


 


(m)                               Enforceability. The Notes, this Mortgage and all other Loan Documents
constitute the legal, valid and binding obligations of Grantor enforceable in
accordance with their respective terms. The execution and delivery of, and
performance under, the Notes, this Mortgage and all other Loan Documents are
within Grantor’s powers and have been duly authorized by all requisite action
and are not in contravention of the powers of Grantor’s charter, bylaws or
other corporate papers.


 


(n)                                 Not a Foreign Person. Grantor is not a “foreign person”
within the meaning of the Internal Revenue Code of 1986, as amended
(hereinafter called the “Code”),
Sections 1445 and 7701 (i.e. Grantor is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate, as those terms
are defined in the Code and regulations promulgated thereunder).


 


2.2                                 Covenants and Agreements. So long as the Indebtedness or any part thereof
remains unpaid, Grantor covenants and agrees with the Collateral Agent as
follows:


 


8

















 


(a)                                  Payment and Performance. Grantor will make prompt payment, as the same becomes
due, of the Indebtedness and shall punctually and properly perform all of
Grantor’s covenants, obligations and liabilities under the Loan Documents.


 


(b)                                 Existence. Grantor will continuously maintain its existence and
its right to do business in the State of Louisiana together with its franchises
and trade names.


 


(c)                                  Taxes on Notes and Other
Taxes. Grantor will promptly pay all income,
franchise and other taxes owing by Grantor and any stamp taxes which may be
required to be paid with respect to this Mortgage.


 


(d)                                 Operation of Mortgaged
Property. Grantor
will operate the Mortgaged Property in a good and workmanlike manner and in
accordance with all Applicable Laws and will pay all fees or charges of any
kind in connection therewith. Grantor will keep the Mortgaged Property occupied
so as not to impair the insurance carried thereon. Grantor will not use or
occupy, or allow the use or occupancy of, the Mortgaged Property in any manner
which violates any Applicable Law or which constitutes a public or private
nuisance or which makes void, voidable or cancelable, or increases the premium
of, any insurance then in force with respect thereto. Grantor will not initiate
or permit any zoning reclassification of the Mortgaged Property or seek any
variance under existing zoning ordinances applicable to the Mortgaged Property
or use or permit the use of the Mortgaged Property in such a manner which would
result in such use becoming a nonconforming use under applicable zoning
ordinances or other Applicable Laws. Grantor will not impose any restrictive
covenants or encumbrances upon the Mortgaged Property, execute or file any
subdivision plat affecting the Mortgaged Property or consent to the annexation
of the Mortgaged Property to any municipality, without the prior written
consent of the Collateral Agent or unless and to the extent otherwise permitted
hereby. Grantor shall not cause or permit any drilling or exploration for, or
extraction, removal or production of, minerals from the surface or subsurface
of the Mortgaged Property. Grantor will not do or suffer to be done any act
whereby the value of any part of the Mortgaged Property may be
materially lessened. During normal business hours and so long as Grantor’s
business is not materially interrupted, Grantor will allow the Collateral Agent
or its authorized representative to enter the Mortgaged Property at any
reasonable time to inspect the Mortgaged Property and Grantor’s books and
records pertaining thereto and Grantor will assist the Collateral Agent or said
representative in whatever way necessary to make such inspection. If Grantor
receives a notice or claim from any federal, state or other governmental entity
pertaining to the Mortgaged Property, including, without limitation, a notice
that the Mortgaged Property is not in compliance with any Applicable Law
material to Grantor’s business, Grantor will promptly furnish a copy of such
notice or claim to the Collateral Agent.


 


(e)                                  Debts for Construction. Grantor will cause all debts and liabilities of any
character, including without limitation, all debts and liabilities for labor,
material and equipment and all debts and charges for utilities servicing the
Mortgaged Property,


 


9

















 


incurred
in the construction, maintenance, operation and development of the Mortgaged
Property, to be promptly paid; provided, that Grantor may in good faith
contest the validity of any such debts and liabilities, and pending such
contest Grantor shall not be deemed in default hereunder if (i) there
exists no material risk of sale, forfeiture or loss of, or loss or interference
with use or possession of, or diminution of value, utility or useful life of
the Mortgaged Property or any interest therein, or any risk of interference
with the repayment of the Notes, (ii) such contest would not result in, or
increase the risk of, the imposition of any criminal liability on any Creditor,
(iii) such contest would not materially and adversely affect the rights,
titles and interests of any Creditor in or to the Mortgaged Property or any
interest therein, and (iv) appropriate reserves with respect thereto are
maintained in accordance with GAAP; provided, however, that in any event each
such contest shall be concluded and the debt or liability shall be paid prior
to the date any writ or order is issued under which the Mortgaged Property or
any part thereof may be sold.


 


(f)                                    Ad Valorem Taxes. Grantor will cause to be paid prior to delinquency all
taxes and assessments heretofore or hereafter levied or assessed against the
Mortgaged Property, or any part thereof, or against the Mortgagee for or
on account of the Notes or any other Indebtedness or the interest created by
this Mortgage and will furnish the Collateral Agent with receipts showing
payment of such taxes and assessments at least ten (10) days prior to the
applicable default date therefor; provided that Grantor may in good faith,
by appropriate proceedings, contest the validity, applicability, or amount of
any asserted tax or assessment, and pending such contest Grantor shall not be
deemed in default hereunder if (i) there exists no material risk of sale,
forfeiture or loss of, or loss or interference with use or possession of, or
diminution of value, utility or useful life of the Mortgaged Property or any
interest therein, or any risk of interference with the repayment of the Notes, (ii) such
contest would not result in, or increase the risk of, the imposition of any
criminal liability on any Creditor, (iii) such contest would not
materially and adversely affect the rights, titles and interests of any
Creditor in or to the Mortgaged Property or any interest therein, and (iv) appropriate
reserves with respect thereto are maintained in accordance with GAAP; provided,
however, that in any event each such contest shall be concluded and the tax,
assessment, penalties, interest and costs shall be paid prior to the date any
writ or order is issued under which the Mortgaged Property or any part thereof
may be sold.


 


(g)                                 Repair and Maintenance. Grantor will keep the Mortgaged Property in good
order, repair, operating condition and appearance, causing all necessary
repairs, renewals, replacements, additions and improvements to be promptly
made, and will not allow any of the Mortgaged Property to be misused, abused or
wasted or to deteriorate. To the extent necessary for the operation of the
Mortgaged Property, Grantor will promptly replace all worn-out or obsolete fixtures
or personal property covered by this Mortgage with fixtures or personal
property comparable to the replaced fixtures or personal property when new.
Grantor will make all renovations, modifications and alterations to the
Mortgaged Property in compliance with all Applicable Laws.


 


10

















 


Notwithstanding
any of the foregoing, Grantor will not, without the prior written consent of
the Collateral Agent, (i) remove from the Mortgaged Property any fixtures
or personal property covered by this Mortgage except those replaced by Grantor
by an article of equal suitability and value, owned by Grantor, free and
clear of any lien or security interest (except that created by this Mortgage); (ii) make
any structural alteration to the Mortgaged Property or any other alterations
thereto which impair the value thereof; or (iii) make any alteration to
the Mortgaged Property involving an estimated expenditure exceeding $250,000
except pursuant to plans and specifications approved in writing by the
Collateral Agent; provided, however, that the tank construction currently
underway on the Mortgaged Property with an estimated cost of approximately
$16,000,000 shall be deemed approved by the Collateral Agent for purposes of
this subsection (g)(iii). Upon request of the Collateral Agent, Grantor
will within thirty (30) days after such request deliver to the Collateral Agent
an inventory describing and showing the make, model, serial number and location
of all fixtures and personal property used in the management, maintenance and
operation of the Mortgaged Property with a certification by Grantor that, to
the best of its knowledge, said inventory is a true and complete schedule of
all such fixtures and personal property used in the management, maintenance and
operation of the Mortgaged Property, that such items specified in the inventory
constitute all of the fixtures and personal property required in the
management, maintenance and operation of the Mortgaged Property, and that all
such items are owned by Grantor free and clear of any lien or security interest
(except that created by this Mortgage) or otherwise permitted hereunder or
under the Credit Agreement.


 


(h)                                 Insurance and Casualty. Subject to the coverage amounts set forth in the Credit
Agreement, Grantor will keep the Mortgaged Property insured against loss or
damage by fire, explosion, windstorm, hail, flood (if the Mortgaged Property
shall at any time be located in an identified “flood prone
area” in which flood insurance has been made available pursuant to
the Flood Disaster Protection Act of 1973), tornado and such other hazards as may be
required by the Collateral Agent by policies of fire, extended coverage and
other insurance in such company or companies, in such amounts, upon such terms
and provisions, and with such endorsements, all as may be acceptable to
the Collateral Agent. Grantor will also provide such other insurance as the
Collateral Agent may from time to time reasonably require, in such
companies, upon such terms and provisions, in such amounts, and with such
endorsements, all as are approved by the Collateral Agent. Grantor further
agrees that Grantor will deliver to the Collateral Agent the original policies
evidencing such insurance and any additional insurance which shall be taken out
upon any part of the Mortgaged Property and receipts evidencing the
payment of all premiums, and will deliver certificates evidencing renewals of
all such policies of insurance to the Collateral Agent at least thirty (30)
days before any such insurance shall expire. Without limiting the discretion of
the Collateral Agent with respect to required endorsements to insurance
policies, Grantor further agrees that all such policies shall provide that
proceeds thereunder will be payable to the Collateral Agent as its interest may appear
pursuant and subject to a mortgage clause (without contribution) of standard form attached
to or otherwise made a part of the applicable


 


11

















 


policy.
In the event of foreclosure of this Mortgage, or other transfer of title to the
Mortgaged Property in extinguishment in whole or in part of the
Indebtedness, all right, title and interest of Grantor in and to such policies
then in force concerning the Mortgaged Property and all proceeds payable
thereunder shall thereupon vest in the purchaser at such foreclosure or the
Collateral Agent or other transferee in the event of such other transfer of
title. In the event any of the Mortgaged Property covered by such insurance is
destroyed or damaged by fire, explosion, windstorm, hail or by any other
casualty against which insurance shall have been required hereunder, (i) the
Collateral Agent may, but shall not be obligated to, make proof of loss if not
made promptly by Grantor; (ii) each insurance company concerned is hereby
authorized and directed to make payment for such loss directly to the
Collateral Agent or to Grantor, as provided for and in accordance with Section 5.3
of the Credit Agreement; and (iii) the Collateral Agent shall have the
right to apply the insurance proceeds first, to reimburse the Collateral Agent
or Mortgagee for all costs and expenses, including, without limitation,
reasonable attorneys’ fees, incurred in connection with the collection of such
proceeds and, second, the remainder of said proceeds shall be applied or
disbursed as provided in Section 5.3 of the Credit Agreement. In any event
the unpaid portion of the Indebtedness shall remain in full force and effect
and Grantor shall not be excused in the payment thereof. If any act or
occurrence of any kind or nature (including any casualty on which insurance was
not obtained or obtainable) shall result in damage to or loss or destruction of
the Mortgaged Property, Grantor shall give immediate written notice thereof to
the Collateral Agent and, unless otherwise so instructed by the Collateral
Agent or otherwise permitted by the Credit Agreement, shall promptly, at
Grantor’s sole cost and expense and regardless of whether the insurance
proceeds, if any, shall be sufficient for the purpose, restore, repair, replace
and rebuild the Mortgaged Property as nearly as possible to its value,
condition and character immediately prior to such damage, loss or destruction
in accordance with plans and specifications submitted to and approved by the
Collateral Agent.


 


(i)                                     Condemnation. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Mortgaged Property
or any portion thereof, or any other proceedings arising out of injury or
damage to the Mortgaged Property, or any portion thereof, Grantor will notify
the Collateral Agent of the pendency of such proceedings. The Collateral Agent may participate
in any such proceedings, and Grantor shall from time to time deliver to the Collateral
Agent all instruments requested by it to permit such participation. Grantor
shall, at its expense, diligently prosecute any such proceedings, and shall
consult with the Collateral Agent, its attorneys and experts, and cooperate
with them in the carrying on or defense of any such proceedings. Except as
otherwise provided in Section 5.3 of the Credit Agreement, all proceeds of
condemnation awards or proceeds of sale in lieu of condemnation with respect to
the Mortgaged Property and all judgments, decrees and awards for injury or
damage to the Mortgaged Property shall be paid to the Collateral Agent and
shall be applied, first, to reimburse the Mortgagee for all costs and expenses,
including, without limitation, reasonable attorneys’ fees, incurred in
connection with collection of such proceeds and,


 


12

















 


second,
the remainder of said proceeds shall be applied or disbursed as provided in Section 5.3
of the Credit Agreement. In any event the unpaid portion of the Indebtedness
shall remain in full force and effect and Grantor shall not be excused in the
payment thereof. In the event any of the foregoing proceeds are applied to the
repair, restoration or replacement of the Mortgaged Property, Grantor shall promptly
commence and complete such repair, restoration or replacement of the Mortgaged
Property as nearly as possible to its value, condition and character
immediately prior to such damage or taking in accordance with plans and
specifications submitted to and approved by the Collateral Agent. Grantor
hereby assigns and transfers all such proceeds, judgments, decrees and awards
to the Collateral Agent and agrees to execute such further assignments of all
such proceeds, judgments, decrees and awards as the Collateral Agent may request.
Grantor hereby grants an irrevocable power of attorney to the Collateral Agent,
such appointment being coupled with an interest, for the Collateral Agent,
after the occurrence and during the continuance of a Default (as hereinafter
defined), in the name of Grantor, to execute and deliver valid acquittances
for, and to appeal from, any such judgment, decree or award. The Collateral
Agent shall not be, in any event or circumstances, liable or responsible for
the failure to collect, or the failure to exercise diligence in the collection
of, any such proceeds, judgments, decrees or awards.


 


(j)                                     Protection and Defense of
Lien. If the validity or priority of this
Mortgage or of any rights, titles, liens or security interests created or evidenced
hereby with respect to the Mortgaged Property or any part thereof shall be
endangered or questioned or shall be attacked directly or indirectly or if any
legal proceedings are instituted against Grantor with respect thereto, Grantor
will give prompt written notice thereof to the Collateral Agent and at Grantor’s
own cost and expense will diligently endeavor to cure any defect that may be
developed or claimed, and will take all necessary and proper steps for the
defense of such legal proceedings, including, without limitation, the
employment of counsel, the prosecution or defense of litigation and the release
or discharge of all adverse claims, and the Mortgagee (whether or not named as
parties to legal proceedings with respect thereto) is hereby authorized and
empowered to take such additional steps as in its judgment and discretion may be
necessary or proper for the defense of any such legal proceedings or the
protection of the validity or priority of this Mortgage and the rights, titles,
liens and security interests created or evidenced hereby, including, without
limitation, the employment of counsel, the prosecution or defense of
litigation, the compromise or discharge of any adverse claims made with respect
to the Mortgaged Property, the purchase of any tax title and the removal of
prior liens or security interests (including, without limitation, the payment
of debts as they mature or the payment in full of matured or unmatured debts,
which are secured by these prior liens or security interests), and all expenses
so incurred of every kind and character shall be subject to and covered by the
provisions of Paragraph 2.3 hereof.


 


(k)                                  No Other Liens. Grantor will not, without the prior written consent of
the Collateral Agent (who, with respect to the addition of servitudes on the
Mortgaged Property, shall grant its consent only with the consent of the
Majority Lenders), create,


 


13

















 


place
or permit to be created or placed, or through any act or failure to act,
acquiesce in the placing of, or allow to remain, any Mortgage, mortgage,
voluntary or involuntary lien, whether statutory, constitutional or contractual
(except for the lien for ad valorem taxes on the Mortgaged Property which are
not delinquent), security interest, encumbrance or charge, or conditional sale
or other title retention document, against or covering the Mortgaged Property,
or any part thereof, other than the Permitted Encumbrances, regardless of
whether the same are expressly or otherwise subordinate to the lien or security
interest created in this Mortgage, and should any of the foregoing become
attached hereafter in any manner to any part of the Mortgaged Property
without the prior written consent of the Collateral Agent, Grantor will cause
the same to be promptly discharged and released. Grantor will own all parts of
the Mortgaged Property and will not acquire any fixtures, equipment or other
property forming a part of the Mortgaged Property pursuant to a lease,
license or similar agreement, without the prior written consent of the
Collateral Agent.


 


(l)                                     Books and Records. Grantor will keep accurate books and records in
accordance with sound accounting principles in which full, true and correct
entries shall be promptly made as to all operations on the Mortgaged Property,
and will permit all such books and records (including, without limitation, all
contracts, statements, invoices, bills and claims for labor, materials and
services supplied for the construction and operation of the improvements
forming a part of the Mortgaged Property) to be inspected and copied by
the Collateral Agent and its duly authorized representatives at all times
during reasonable business hours such inspections not to unreasonably interfere
with the conduct of Grantor’s business.


 


(m)                               Rent Roll. Within ten (10) business days after the
Collateral Agent’s request, Grantor shall provide to the Collateral Agent a
leasing report and rent roll of the Mortgaged Property containing the name and
address of all tenants then occupying portions of the Mortgaged Property under
valid and subsisting lease agreements and, with respect to each lease, the
rentals payable, square footage of the leased premises, amount of security
deposit, lease commencement date, lease expiration date, date through which
rent is paid and the nature and extent of any defaults by any tenant, all
certified as to accuracy by a representative of Grantor acceptable to the
Collateral Agent. Grantor shall use its best efforts to obtain and examine
financial and credit information on all proposed lessees and provide copies of
same to the Collateral Agent upon its request. If, and as often as, reasonably
requested by the Collateral Agent, Grantor will make further reports of
operations in such form as the Collateral Agent prescribes, setting out
full data requested by the Collateral Agent.


 


(n)                                 Escrow. If requested by the Collateral Agent at any time
following and during the continuance of a Default (as defined in Article IV
hereof) in order to secure the performance and discharge of Grantor’s
obligations under Subparagraphs (f) and (h) of this Paragraph 2.2,
but not in lieu of such obligations, Grantor will deposit with the Collateral
Agent a sum equal to ad valorem taxes, assessments and charges (which


 


14

















 


charges
for the purpose of this Subparagraph shall include without limitation ground
rents and water and sewer rents and any other recurring charge which could
create or result in a lien against the Mortgaged Property) against the
Mortgaged Property for the current year and the premiums for such policies of
insurance for the current year, all as estimated by the Collateral Agent and
prorated to the  end of the calendar
month following the month during which this Mortgage is executed and delivered,
and thereafter will deposit with the Collateral Agent, on each date when an
installment of principal and/or interest is due on the Notes, sufficient funds
(as estimated from time to time by the Collateral Agent) to permit the Collateral
Agent to pay, at least thirty (30) days prior to the due date thereof, the next
maturing ad valorem taxes, assessments and charges and premiums for such
policies of insurance. The Collateral Agent shall have the right to rely upon
tax information furnished by applicable taxing authorities in the payment of
such taxes or assessments and shall have no obligation to make any protest of
any such taxes or assessments. Any excess over the amounts required for such
purposes shall be held by the Collateral Agent for future use, applied to any
Indebtedness or refunded to Grantor, at the Collateral Agent’s option, and any
deficiency in such funds so deposited shall be made up by Grantor upon demand
of the Collateral Agent. All such funds so deposited shall bear no interest
whatsoever, shall be kept separate and not be mingled with the general funds of
the Collateral Agent and shall be applied by the Collateral Agent toward the
payment of such taxes, assessments, charges and premiums when statements
therefor are presented to the Collateral Agent by Grantor (such statements to
be presented by Grantor to the Collateral Agent within a reasonable time before
the applicable amount is due); provided, however, that, if a Default (as
hereinafter defined) shall have occurred and be continuing hereunder, such
funds may at the Collateral Agent’s option be applied to the payment of
the Indebtedness in the order determined by the Collateral Agent in its sole
discretion, and that the Collateral Agent may at any time, in its sole
discretion, apply all or any part of such funds toward the payment of any
such taxes, assessments, charges or premiums which are past due, together with
any penalties or late charges with respect thereto. The conveyance or transfer
of Grantor’s interest in the Mortgaged Property for any reason (including,
without limitation, the foreclosure of a subordinate lien or security interest
or a transfer by operation of law) shall constitute an assignment or transfer
of Grantor’s interest in and rights to such funds held by the Collateral Agent
under this Subparagraph but subject to the rights of the Collateral Agent
hereunder.


 


(o)                                 Further Assurances. Grantor will, on request of the Collateral Agent,
promptly (i) correct any defect, error or omission which may be
discovered in the contents of this Mortgage or in any other instrument now or
hereafter executed in connection herewith or in the execution or acknowledgment
thereof; (ii) execute, acknowledge, deliver and record or file such
further instruments (including, without limitation, further deeds of trust,
security agreements, financing statements, continuation statements and
assignments of rents and leases) and do such further acts as may be
necessary, desirable or proper to carry out more effectively the purposes of
this Mortgage and such other instruments and to subject to the liens and
security interests hereof and thereof any property intended by the terms hereof
and thereof to be covered hereby and


 


15

















 


thereby
including, without limitation, any renewals, additions, substitutions,
replacements or appurtenances to the Mortgaged Property; (iii) execute,
acknowledge, deliver, procure and record or file any document or instrument
(including, without limitation, any financing statement) deemed advisable by
the Collateral Agent to protect the lien or security interest hereunder against
the rights or interests of third persons; and (iv) provide such
certificates, documents, reports, information, affidavits and other instruments
and do such further acts as may be necessary, desirable or proper in the
reasonable determination of the Collateral Agent to enable the Collateral Agent
to comply with the requirements or requests of any agency having jurisdiction
over the Collateral Agent or any examiners of such agencies with respect to the
Indebtedness, Grantor or the Mortgaged Property and Grantor will pay all costs
connected with any of the foregoing.


 


(p)                                 Title Insurance. Grantor shall, at its sole cost and expense obtain and
maintain title insurance in the form of a commitment, binder or policy
(collectively, “Policy”) as
the Collateral Agent may require, issued by a title company acceptable to
the Collateral Agent. If for any reason during the period the Indebtedness is outstanding
such title insurance is no longer valid or the issuing title company is
insolvent or unable to adequately insure the validity and priority of the lien
evidenced by this Mortgage (as determined by the Collateral Agent in its sole
discretion), Grantor agrees to obtain, at its sole cost and expense, a
replacement Policy issued by a title company acceptable to the Collateral Agent
in favor of the Collateral Agent as mortgagee, in such amount and form as
required by the Collateral Agent, insuring the validity and priority of the
lien evidenced by this Mortgage.


 


(q)                                 Fees and Expenses;
Indemnification. Grantor
will pay all appraisal fees, filing and recording fees, inspection fees, survey
fees, taxes (excluding taxes imposed on the net income of the Collateral Agent
by a taxing authority in the jurisdiction of organization of the Collateral
Agent or in a jurisdiction in which the Collateral Agent has an office or fixed
place of business), brokerage fees and commissions, abstract fees, title policy
fees, uniform commercial code search fees, escrow fees, reasonable
attorneys’ fees, and all other costs and expenses of every character incurred
by Grantor or the Collateral Agent in connection with the Indebtedness, either
at the closing thereof or at any time during the term thereof, or otherwise
attributable or chargeable to Grantor as owner of the Mortgaged Property, and
will reimburse the Collateral Agent for all such costs and expenses incurred by
the Collateral Agent. Grantor shall pay all expenses and reimburse the
Collateral Agent for any expenditures, including, without limitation,
reasonable attorneys’ fees and legal expenses, incurred or expended in
connection with (i) the breach by Grantor of any covenant herein or in any
other Loan Document; (ii) the Collateral Agent’s exercise of any of its
rights and remedies hereunder or under the Notes or any other Loan Document or
the Collateral Agent’s protection of the Mortgaged Property and its lien and
security interest therein; or (iii) any amendments to this Mortgage, the
Notes or any other Loan Document or any matter requested by Grantor or any
approval required hereunder. Grantor will indemnify and hold harmless Mortgagee
and any Creditor (for purposes of this Subparagraph, the  terms “Mortgagee” and


 


16

















 


“Creditor” shall include the directors, officers, partners,
employees, representatives and agents of Mortgagee and such Creditor,
respectively, and any persons or entities owned or controlled by, owning or controlling,
or under common control or affiliated with Mortgagee and such Creditor,
respectively) from and against, and reimburse them for, all claims, demands,
liabilities, losses, damages, causes of action, judgments, penalties, costs and
expenses (including, without limitation, reasonable attorneys’ fees) which may be
imposed upon, asserted against or incurred or paid by them by reason of, on
account of or in connection with any bodily injury or death or property damage
occurring in or upon or in the vicinity of the Mortgaged Property through any
cause whatsoever or asserted against them on account of any act performed or
omitted to be performed hereunder or on account of any transaction arising out
of or in any way connected with the Mortgaged Property or with this Mortgage,
the Notes or any other Loan Documents. WITHOUT LIMITATION OF THE
FOREGOING, IT IS THE INTENTION OF GRANTOR AND GRANTOR AGREES THAT THE FOREGOING
INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY WITH RESPECT TO CLAIMS,
DEMANDS, LIABILITIES, LOSSES, DAMAGES, CAUSES OF ACTION, JUDGMENTS, PENALTIES,
COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES)
WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF
SUCH (AND/OR ANY OTHER) INDEMNIFIED PARTY OR ANY STRICT LIABILITY. HOWEVER, SUCH INDEMNITIES SHALL NOT APPLY TO ANY INDEMNIFIED PARTY TO
THE EXTENT THE SUBJECT OF THE INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY.
The foregoing indemnities shall not terminate upon release, foreclosure or
other termination of this Mortgage but will survive foreclosure of this
Mortgage or conveyance in lieu of foreclosure and the repayment of the
Indebtedness and the discharge and release of this Mortgage and the other Loan
Documents. Any amount to be paid hereunder by Grantor to a Creditor and/or
Mortgagee shall be subject to and governed by the provisions of Paragraph
2.3 hereof.


 


(r)                                    Liability Insurance. Grantor shall maintain Commercial General Liability
insurance against claims for bodily injury or death and property damage
occurring in or upon or resulting from the Mortgaged Property, in standard form and
with such insurance company or companies as may be acceptable to the
Collateral Agent, such insurance to afford immediate protection, to the limit
of not less than $100,000,000 in respect of any one accident or occurrence with
not more than $125,000 deductible. Such Commercial General Liability insurance
shall include Blanket Contractual Liability coverage which insures contractual
liability under the indemnification of the Mortgagee by Grantor set forth in
this Mortgage (but such coverage or the amount thereof shall in no way limit
such indemnification). Grantor shall maintain with respect to each policy or
agreement evidencing such Commercial General Liability insurance such
endorsements as may be required by the Collateral Agent and shall at all
times deliver and maintain with the Collateral Agent a certificate with respect
to such insurance in form satisfactory


 


17

















 


to the
Collateral Agent. Not less than thirty (30) days prior to the expiration date
of each policy of insurance required of Grantor pursuant to this Subparagraph,
Grantor shall deliver to the Collateral Agent a renewal policy or policies
marked “premium paid” or accompanied by other
evidence of payment satisfactory to the Collateral Agent. In the event of a
foreclosure of this Mortgage, the purchaser of the Mortgaged Property shall succeed
to all the rights of Grantor, including, without limitation, any right to
unearned premiums, in and to all policies of insurance assigned pursuant to the
provisions of this Subparagraph, and Grantor hereby authorizes the Collateral
Agent to notify any or all insurance carriers of this assignment.


 


(s)                                  Warranty. Grantor will warrant and forever defend the title to
the Mortgaged Property against the claims of all persons making any claim to
the same or any part thereof, subject to the Permitted Encumbrances.


 


(t)                                    Tax on Lien. In the event of the enactment after the date hereof of
any law of the State of Louisiana or of any other governmental entity deducting
from the value of property for the purpose of taxation any lien or security
interest thereon, or imposing upon the Collateral Agent the payment of the
whole or any part of the taxes or assessments or charges or liens herein
required to be paid by Grantor, or changing in any way the laws relating to the
taxation of deeds of trust or mortgages or security agreements or debts secured
by deeds of trust or mortgages or security agreements or the interest of the
mortgagee or secured party in the property covered thereby, or the manner of
collection of such taxes, so as to affect this Mortgage or the Indebtedness or
the Collateral Agent, then, and in any such event, Grantor upon demand by the
Collateral Agent, shall pay such taxes, assessments, charges or liens, or
reimburse the Collateral Agent therefor; provided, however, that if in the
opinion of counsel for the Collateral Agent (i) it might be unlawful to
require Grantor to make such payment; or (ii) the making of such payment
might result in the contracting for, charging or receiving of interest beyond
the maximum amount permitted by law, then and in such event, the Collateral
Agent may elect, by notice in writing given to Grantor, to declare all of
the Indebtedness to be and become due and payable sixty (60) days from the
giving of such notice.


 


 (u)                              Location and Use of
Personal Property. All
tangible Personal Property will be used in the business of Grantor and shall
remain in Grantor’s possession or control at all times at Grantor’s risk of
loss and shall be located on the Land.


 


(v)                                 Estoppel Certificate. Grantor shall at any time and from time to time furnish
promptly upon request by the Collateral Agent a written statement in such form as
may be required by the Collateral Agent stating that the Notes, this
Mortgage and the other Loan Documents are valid and binding obligations of
Grantor, enforceable against Grantor in accordance with their terms; the unpaid
principal balance of the Notes; the date to which interest on the Notes is
paid; that the Notes, this Mortgage and the other Loan Documents have not been
released, subordinated or modified; and that there are no


 


18

















 


offsets
or defenses against the enforcement of the Notes, this Mortgage or any other
Loan Documents, or if any of the foregoing statements are untrue, specifying
the reasons therefor.


 


(w)                               Proceeds of Personal
Property. Grantor
shall account fully and faithfully for and, if the Collateral Agent so elects,
shall promptly pay or turn over to the Collateral Agent all proceeds in
whatever form received from any disposition of any of the Personal
Property, except as otherwise specifically authorized herein. Grantor shall at
all times keep the Personal Property and its proceeds separate and distinct
from other property of Grantor and shall keep accurate and complete records of
the Personal Property and its proceeds.


 


(x)                                   Credit Agreement. Grantor will punctually perform and discharge
each and every obligation and undertaking of Grantor under the Credit Agreement
and will not permit a default to occur thereunder.


 


(y)                                 Permitted Encumbrances. Grantor will comply with and will perform all of
the covenants, agreements and obligations imposed upon it or the Mortgaged
Property in the Permitted Encumbrances in accordance with their respective
terms and provisions. Grantor will not modify or permit any modification of any
Permitted Encumbrance without the prior written consent of the Collateral
Agent.


 


(z)                                   Environmental. Grantor will not cause or permit the Mortgaged
Property or Grantor to be in violation of, or do anything or permit anything to
be done which will subject the Mortgaged Property to any remedial obligations
under, any Applicable Environmental Laws, including, without limitation,
CERCLA, RCRA, the Louisiana Environmental Quality Act, La. R.S. 30: 2001, et
seq., assuming disclosure to the applicable governmental authorities of all
relevant facts, conditions and circumstances, if any, pertaining to Grantor
and/or the Mortgaged Property, and Grantor will promptly notify the Collateral
Agent in writing of any existing, pending or, to the best knowledge of Grantor,
threatened investigation or inquiry (which investigation or inquiry if
adversely determined against the Grantor would not alone or in the aggregate
result in a Material Adverse Effect) by any governmental authority in
connection with any Applicable Environmental Laws. Grantor shall obtain any
permits, licenses or similar authorizations to construct, occupy, operate or
use any buildings, improvements, fixtures and equipment forming a part of
the Mortgaged Property by reason of any Applicable Environmental Laws. Grantor
shall take all steps necessary to determine that no hazardous substances or
solid waste are being disposed of or otherwise released on or to the Mortgaged
Property. Grantor will not cause or permit the disposal or other release of any
hazardous substance or solid waste on or to the Mortgaged Property and
covenants and agrees to keep or cause the Mortgaged Property to be kept free of
any hazardous substance or solid waste and to remove the same (or if removal is
prohibited by law, to take whatever action is required by law) promptly upon
discovery at its sole expense. Upon the Collateral Agent’s reasonable request,
at any time and from time to time during


 


19

















 


the
existence of this Mortgage, Grantor will provide at Grantor’s sole expense an
inspection or audit of the Mortgaged Property from an engineering or consulting
firm approved by the Collateral Agent, indicating the presence or absence of
hazardous substances and solid wastes on the Mortgaged Property. If Grantor
fails to provide same after thirty (30) days’ notice, the Collateral Agent may order
same, and Grantor grants to the Collateral Agent and its agents, employees,
contractors and consultants access to the Mortgaged Property and a license
(which is coupled with an interest and irrevocable while this Mortgage is in
effect) to perform inspections and tests. The cost of such inspections and
tests shall be a demand obligation owing by Grantor to the Collateral Agent
pursuant to this Mortgage and shall be subject to and covered by the provisions
of Paragraph 2.3 hereof.


 


(aa)                            Asbestos. Grantor covenants and agrees that it will not install
in the Mortgaged Property, nor permit to be installed in the Mortgaged
Property, asbestos, material containing asbestos which is or may become
friable or material containing asbestos deemed hazardous by any Applicable
Environmental Law, and that if any such asbestos or material containing
asbestos exists in or on the Mortgaged Property, whether installed by Grantor
or others, Grantor will remove the same (or if removal is prohibited by law,
will take whatever action is required by law, including, without limitation,
implementing any required operation and maintenance program) promptly upon
discovery at its sole expense. Upon the Collateral Agent’s reasonable request,
at any time and from time to time during the existence of this Mortgage,
Grantor shall provide at Grantor’s sole expense an inspection or audit of the
Mortgaged Property from an engineering or consulting firm approved by the
Collateral Agent, indicating the presence or absence of asbestos or material
containing asbestos on the Mortgaged Property. If Grantor fails to provide same
after thirty (30) days’ notice, the Collateral Agent may order same, and
Grantor grants to the Collateral Agent and its agents, employees, contractors
and consultants access to the Mortgaged Property and a license (which is
coupled with an interest and irrevocable while this Mortgage is in effect) to
perform inspections and tests. The cost of such inspections and tests
shall be subject to and covered by the provisions of Paragraph 2.3
hereof.


 


2.3                                 Right of the Collateral
Agent to Perform. Grantor
agrees that if Grantor fails to perform any act or to take any action which
Grantor is required to perform or take hereunder or under any of the other
Loan Documents, or to pay any money which Grantor is required to pay hereunder
or under any of the other Loan Documents, or takes any action prohibited hereby
or thereby, the Collateral Agent, in Grantor’s name or in its own name, may but
shall not be obligated to perform or cause to be performed such act or
take such action, including, without limitation, entering the Mortgaged
Property for such purpose and to take all such action thereon as it may deem
necessary or appropriate, or pay such money or remedy any action so taken, and
any expenses so incurred by the Collateral Agent, and any money paid by the
Collateral Agent in connection therewith, shall be a demand obligation owing by
Grantor to the Collateral Agent and the Collateral Agent, upon making such
payment, shall be subrogated to all of the rights of the party receiving such
payment. Any amounts due and owing by Grantor to any Creditor pursuant


 


20

















 


to this Mortgage shall
bear interest from the date such amount becomes due until paid at the rate of
interest payable on matured but unpaid principal of or interest on the Notes
and shall be a part of the Indebtedness and shall be secured by this
Mortgage and by all of the other Loan Documents.


 


2.4                                 Indemnification Regarding
Environmental Matters. Grantor
agrees to indemnify and hold the Mortgagee (for purposes of this Paragraph, the
term “Mortgagee” shall include the directors,
officers, partners, employees, representatives and agents of the Mortgagee and
any persons or entities owned or controlled by, owning or controlling, or under
common control or otherwise affiliated with the Mortgagee) harmless from and
against, and to reimburse the Mortgagee with respect to, any and all claims,
demands, losses, damages (including consequential damages), liabilities, causes
of action, judgments, penalties, costs and expenses (including reasonable
attorneys’ fees and court costs) of any and every kind or character, known or
unknown, fixed or contingent, imposed on, asserted against or incurred by the
Mortgagee at any time and from time to time by reason of, in connection with or
arising out of (a) the breach of any representation or warranty of Grantor
as set forth herein regarding asbestos, material containing asbestos or
Applicable Environmental Laws, (b) the failure of Grantor to perform any
obligation herein required to be performed by Grantor regarding asbestos,
material containing asbestos or Applicable Environmental Laws, (c) any
violation on or before the Release Date (as hereinafter defined) of any
Applicable Environmental Law in effect on or before the Release Date, (d) the
removal of hazardous substances or solid wastes from the Mortgaged Property (or
if removal is prohibited by law, the taking of whatever action is required by
law), (e) the removal of asbestos or material containing asbestos from the
Mortgaged Property (or if removal is prohibited by Applicable Environmental
Laws, the taking of whatever action is required by Applicable Environmental
Laws, including, without limitation, the implementation of any required
operation and maintenance program), (f) any act, omission, event or
circumstance existing or occurring on or prior to the Release Date (including,
without limitation, the presence on the Mortgaged Property or release from the
Mortgaged Property of any hazardous substance or solid waste disposed of or
otherwise released on or prior to the Release Date), resulting from or in
connection with the ownership, construction, occupancy, operation, use and/or
maintenance of the Mortgaged Property, regardless of whether the act, omission,
event or circumstance constituted a violation of any Applicable Environmental
Law at the time of its existence or occurrence, and (g) any and all claims
or proceedings (whether brought by private party or governmental agency) for
bodily injury, property damage, abatement or remediation, environmental damage
or impairment or any other injury or damage resulting from or relating to any
hazardous substance or solid waste located upon or migrating into, from or
through the Mortgaged Property (whether or not any or all of the foregoing was
caused by Grantor or its tenant or subtenant, or a prior owner of the Mortgaged
Property or its tenant or subtenant, or any third party and whether or not the
alleged liability is attributable to the handling, storage, generation,
transportation or disposal of such substance or waste or the mere presence of
such substance or waste on the Mortgaged Property). WITHOUT
LIMITATION, THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY
WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL
DAMAGES), LIABILITIES, CAUSES OF ACTION, JUDGMENTS,


 


21

















 


PENALTIES,
COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) WHICH IN WHOLE
OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR
ANY OTHER) INDEMNIFIED PARTY OR ANY STRICT LIABILITY. HOWEVER, SUCH INDEMNITIES
SHALL NOT APPLY TO ANY INDEMNIFIED PARTY TO THE EXTENT THE SUBJECT OF THE
INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNIFIED PARTY. The term “Release Date”
as used herein shall mean the earlier of the following two dates: (i) the
date on which the Indebtedness has been paid and performed in full and this
Mortgage has been released, or (ii) the date on which the lien of this
Mortgage is foreclosed or a conveyance by deed in lieu of such foreclosure is
fully effective; provided, if such payment, performance, release, foreclosure
or conveyance is challenged, in bankruptcy proceedings or otherwise, the
Release Date shall be deemed not to have occurred until such challenge is rejected,
dismissed or withdrawn with prejudice. The foregoing indemnities shall not
terminate upon the Release Date or upon the release, foreclosure or other
termination of this Mortgage but will survive the Release Date, foreclosure of
this Mortgage or conveyance in lieu of foreclosure, and the repayment of the
Indebtedness and the discharge and release of this Mortgage and the other Loan
Documents. Any amount to be paid hereunder by Grantor to the Mortgagee shall be
a demand obligation owing by Grantor to the Mortgagee and shall be subject to
and covered by the provisions of Paragraph 2.3 hereof. Nothing in this
Paragraph, elsewhere in this Mortgage or in any other Loan Document shall limit
or impair any rights or remedies of the Mortgagee against Grantor or any third
party under Applicable Environmental Laws, including without limitation, any
rights of contribution or indemnification available hereunder or thereunder.


 


ARTICLE III


ASSIGNMENT OF RENTS, LEASES, PROFITS, INCOME,


CONTRACTS AND BONDS


 


3.1                                 Assignment of Rents. Pursuant to and to the extent permitted by La. R.S.
9:4401 et  seq., and as security for the payment and performance
of the Notes, the Indebtedness and the obligations set forth in the Loan
Documents, Grantor does hereby absolutely and unconditionally assign, transfer
and set over to the Collateral Agent all rents, income, receipts, revenues,
issues, profits and proceeds to be derived from the Mortgaged Property,
including, without limitation, the immediate and continuing right to collect and
receive all of the rents, income, receipts, revenues, issues, profits and other
sums of money that may now or at any time hereafter become due and payable
to Grantor under the terms of any leases now or hereafter covering the
Mortgaged Property, or any part thereof, including, but not limited to,
minimum rents, additional rents, percentage rents, deficiency rents and
liquidated damages following default, all proceeds payable under any policy of
insurance covering the loss of rents resulting from untenantability caused by
destruction or damage to the Mortgaged Property, and all of Grantor’s rights to
recover monetary amounts from any tenant in bankruptcy, including, without
limitation, rights of recovery for use and occupancy and damage claims arising
out of lease defaults, including rejections, under any applicable bankruptcy
law (as hereinafter defined), together with any sums of money that may now
or at any time hereafter become due and payable to Grantor by virtue of


 


22

















 


any and all royalties,
overriding royalties, bonuses, delay rentals and any other amount of any kind
or character arising under any and all present and future oil, gas and mining
leases covering the Mortgaged Property or any part thereof (collectively,
the “Rents”); and all proceeds and other
amounts paid or owing to Grantor under or pursuant to any and all contracts and
bonds relating to the construction, erection or renovation of the Mortgaged
Property; subject however to a license hereby granted by the Collateral Agent
to Grantor to collect and receive all of the foregoing (such license evidenced
by the Collateral Agent’s acceptance of the Mortgage), subject to the terms and
conditions hereof. Notwithstanding anything contained herein or in any of the
other Loan Documents to the contrary, the assignment in this Paragraph is an
absolute, unconditional and presently effective assignment and not merely a
security interest; provided, however, upon the occurrence of a Default (as
hereinafter defined) hereunder or upon the occurrence of any event or
circumstance which with the lapse of time or the giving of notice or both would
constitute a Default hereunder, such license shall automatically and
immediately terminate and Grantor shall hold all Rents paid to Grantor
thereafter in trust for the use and benefit of the Collateral Agent and the
Collateral Agent shall have the right, power and authority, whether or not it
takes possession of the Mortgaged Property, to seek enforcement of any such
lease, contract or bond and to demand, collect, receive, sue for and recover in
its own name any and all of the above described amounts assigned hereby and to
apply the sum(s) collected, first to the payment of expenses incident to the
collection of the same, and the balance to the payment of the Indebtedness;
provided further, however, that the Collateral Agent shall not be deemed to
have taken possession of the Mortgaged Property except on the exercise of its
option to do so, evidenced by its demand and overt act for such purpose. It
shall not be necessary for the Collateral Agent to institute any type of legal
proceedings or take any other action whatsoever to enforce the assignment
provisions in this Paragraph 3.1.


 


3.2                                 Assignment of Leases. As security for the payment and performance of the
Notes, the Indebtedness and the obligations set forth in the Loan Documents,
Grantor hereby assigns to the Collateral Agent all existing and future leases,
including, without limitation, all subleases thereof, and any and all
extensions, renewals, modifications and replacements thereof, upon any part of
the Mortgaged Property (collectively, the “Leases”)
and Grantor hereby further assigns to the Collateral Agent all guaranties of
tenants’ performance under the Leases. Prior to a Default, Grantor shall have
the right, without joinder of the Collateral Agent, to enforce the Leases,
unless the Collateral Agent directs otherwise.


 


3.3                                 Warranties Concerning
Leases and Rents. Grantor
represents and warrants that:


 


(a)                                  Grantor
has (or will have, with respect to any future leases) good title to the Leases
and Rents and authority to assign them, and no other person or entity has any
right, title or interest therein;


 


(b)                                 all existing Leases are valid, unmodified
and in full force and effect, except as indicated herein, and, to Grantor’s
knowledge, no default exists thereunder;


 


23

















 


(c)                                  unless otherwise provided herein, no
Rents have been or will be assigned, mortgaged or pledged;


 


(d)                                 no Rents have been or will be
anticipated, waived, released, discounted, set off or compromised; and


 


(e)                                  except as indicated in the Leases,
Grantor has not received any funds or deposits from any tenant for which credit
has not already been made on account of accrued Rents or not more than one (1) month
in advance.


 


3.4                                 Grantor’s Covenants of
Performance. Grantor
covenants to:


 


(a)                                  perform all of its obligations under
the Leases and give prompt notice to the Collateral Agent of any failure to do
so;


 


(b)                                 give immediate notice to the Collateral
Agent of any notice Grantor receives from any tenant or subtenant under any
Leases, specifying any claimed default by any party under such Leases,
excluding, however, notices of default under residential leases;


 


(c)                                  enforce the tenant’s obligations under
the Leases;


 


(d)                                 defend, at Grantor’s expense, any
proceeding pertaining to the Leases, including, if the Collateral Agent so
requests, any such proceeding to which the Collateral Agent is a party;


 


(e)                                  neither create nor permit any encumbrance
upon its interest as lessor of the Leases, except this Mortgage and any other
encumbrances permitted by this Mortgage; and


 


(f)                                    until otherwise directed by the
Collateral Agent upon the occurrence of an Event of Default, cause all sums
payable to the Grantor and assigned hereby, whether as rent, purchase proceeds
or avails, income, and all other sums or otherwise, to be paid directly to the
such account(s) as the Collateral Agent may specify (each an “Earnings
Account”) and cause all Leases to specify that payments due the Grantor be made
directly to the Earnings Account.


 


3.5                                 Prior Approval for Actions
Affecting Leases. Grantor
shall not, without the prior written consent of the Collateral Agent:


 


(a)                                  receive or collect Rents more than one
month in advance;


 


(b)                                 encumber or assign future Rents;


 


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(c)                                  waive or release any obligation of any
tenant under the Leases;


 


(d)                                 cancel, terminate or modify any of the
Leases; cause or permit any cancellation, termination or surrender of any of
the Leases; or commence any proceedings for dispossession of any tenant under
any of the Leases, except upon default by the tenant thereunder;


 


(e)                                  renew or extend any of the Leases, except
pursuant to terms in existing Leases;


 


(f)                                    permit any assignment of the Leases; or


 


(g)                                 enter into any Leases after the date
hereof.


 


3.6                                 Settlement for Termination. Grantor agrees that no settlement for damages for
termination of any of the Leases under the Federal Bankruptcy Code, or under
any other federal, state or local statute, shall be made without the prior
written consent of the Collateral Agent, and any check in payment of such
damages will be made payable to both Grantor and the Collateral Agent. Grantor
hereby assigns any such payment to the Collateral Agent to be applied to the
Indebtedness as the Collateral Agent may elect and agrees to endorse any
check for such payment to the order of the Collateral Agent.


 


3.7                                 The Collateral Agent in
Possession. The
Collateral Agent’s acceptance of this assignment shall not, prior to entry upon
and taking possession of the Mortgaged Property by the Collateral Agent, be
deemed to constitute the Collateral Agent a “mortgagee in
possession,” nor obligate the Collateral Agent to appear in or
defend any proceedings relating to any of the Leases or to the Mortgaged
Property, take any action hereunder, expend any money, incur any expenses, or
perform any obligation or liability under the Leases, or assume any
obligation for any deposits delivered to Grantor by any tenant and not
delivered to the Collateral Agent. The Collateral Agent shall not be liable for
any injury or damage to any person or property in or about the Mortgaged
Property.


 


3.8                                 Appointment of Attorney. Grantor hereby irrevocably appoints the
Collateral Agent its attorney-in-fact, coupled with an interest, empowering the
Collateral Agent to subordinate any Leases to this Mortgage.


 


3.9                                 Indemnification. Grantor hereby indemnifies and holds the Collateral
Agent (which shall include the directors, officers, partners, employees,
representatives and agents of the Collateral Agent and any persons or entities
owned or controlled by, owning or controlling, or under common control or
affiliated with the Collateral Agent) harmless from all liability, damage or
expense imposed on or incurred by the Collateral Agent from any claims under
the Leases, including, without limitation, any claims by Grantor with respect
to payments of Rents made directly to the Collateral Agent after Default and
claims by any tenant for security deposits or for rental payments more than one
(1) month in advance and not delivered to the Collateral Agent.


 


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All amounts indemnified
against hereunder, including, without limitation, reasonable attorneys’ fees,
if paid by the Collateral Agent shall bear interest at the Default Rate (as
defined in the Credit Agreement) and shall be payable by Grantor in accordance
with Paragraph 2.3 hereof. The foregoing indemnities shall not terminate
upon the foreclosure, release or other termination of this Mortgage but will
survive foreclosure of this Mortgage or conveyance in lieu of foreclosure and
the repayment of the Indebtedness and the discharge and release of this
Mortgage and the other Loan Documents.


 


3.10                           Records. Upon request by the Collateral Agent, Grantor shall
deliver to the Collateral Agent executed originals of all Leases and copies of
all records relating thereto.


 


3.11                           Merger. There shall be no merger of the leasehold estates,
created by the Leases, with the fee estate of the Land without the prior
written consent of the Collateral Agent.


 


3.12                           Right to Rely. Grantor hereby irrevocably authorizes and directs the
tenants under the Leases to pay Rents to the Collateral Agent upon written
demand by the Collateral Agent without further consent of Grantor, and the
tenants may rely upon any written statement delivered by the Collateral
Agent to the tenants. Any such payment to the Collateral Agent shall constitute
payment to Grantor under the Leases. The provisions of this Paragraph are
intended solely for the benefit of the tenants and shall never inure to the
benefit of Grantor or any person claiming through or under Grantor, other than
a tenant who has not received such notice. The assignment of Rents set forth in
Paragraph 3.1 is not contingent upon any notice or demand by the
Collateral Agent to the tenants.


 


ARTICLE IV


EVENTS OF DEFAULT


 


Defaults. The
term “Default” as used in this Mortgage
shall mean the occurrence of any of the following events:


 


4.1                                 Abandonment. Grantor abandons all or a portion of
the Mortgaged Property; or


 


4.2                                 Destruction of Mortgaged
Property. The
Mortgaged Property is demolished, destroyed or damaged and Grantor fails to perform in
accordance with Section 5.3 of the Credit Agreement; or


 


4.3                                 Condemnation. The Mortgaged Property or a portion thereof is taken
in condemnation, or sold in lieu of condemnation and Grantor fails to perform in
accordance with Section 5.3 of the Credit Agreement; or


 


4.4                                 Default under Credit
Agreement. An
Event of Default (as such term is defined in the Credit Agreement) has occurred
and is continuing.


 


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ARTICLE V


REMEDIES AND RELATED RIGHTS


 


If a Default shall occur, the Collateral Agent may
exercise any one or more of the following remedies and shall, in addition to
any other rights afforded to the Collateral Agent under the Credit Agreement or
otherwise, have the following related rights, without notice (unless notice is
required by Applicable Laws):


 


5.1           Possession. Upon the occurrence of
a Default, or any event or circumstance which, with the lapse of time or the
giving of notice, or both, would constitute a Default hereunder, the Collateral
Agent is authorized prior or subsequent to the institution of any foreclosure
proceedings to enter upon the Mortgaged Property, or any part thereof, and to
take possession of the Mortgaged Property and of all books, records and
accounts relating thereto and to exercise without interference from Grantor any
and all rights which Grantor has with respect to the management, possession,
operation, protection or preservation of the Mortgaged Property, including the
right to rent the same for the account of Grantor and to deduct from such rents
all costs, expenses and liabilities of every character incurred by the
Collateral Agent in collecting such rents and in managing, operating,
maintaining, protecting or preserving the Mortgaged Property and to apply the
remainder of such rents to the Indebtedness in such manner as the Collateral
Agent may elect in its sole discretion. All such costs, expenses and
liabilities incurred by the Collateral Agent in collecting such rents and in
managing, operating, maintaining or preserving the Mortgaged Property, if not
paid out of rents as hereinabove provided, shall constitute a demand obligation
owing by Grantor and shall be subject to and covered by Paragraph 2.3
hereof. If necessary to obtain the possession provided for above, the
Collateral Agent may invoke any and all legal remedies to dispossess Grantor,
including, without limitation, one or more actions for forcible entry and
detainer, trespass to try title and restitution. In connection with any action
taken by the Collateral Agent pursuant to this Paragraph, the Collateral Agent
shall not be liable for any loss sustained by Grantor resulting from any
failure to rent the Mortgaged Property, or any part thereof, or from any other
act or omission of the Collateral Agent in managing the Mortgaged Property (REGARDLESS OF WHETHER SUCH LOSS IS CAUSED BY THE NEGLIGENCE OF THE
COLLATERAL AGENT) unless such loss is caused by the willful
misconduct or gross negligence of the Collateral Agent, nor shall the
Collateral Agent be obligated to perform or discharge any obligation, duty or
liability under any Lease covering the Mortgaged Property or any part thereof
or under or by reason of this instrument or the exercise of rights or remedies
hereunder. Grantor shall and does hereby agree to indemnify the Collateral
Agent for, and to hold the Collateral Agent (which shall include the directors,
officers, partners, employees, representatives and agents of the Collateral
Agent and any persons or entities owned or controlled by, owning or controlling
or under common control or affiliated with the Collateral Agent) harmless from,
any and all liability, loss or damage which may or might be incurred by the
Collateral Agent under any Lease or under or by reason of this Mortgage or the
exercise of rights or remedies hereunder and from any and all claims and
demands whatsoever which may be asserted against the Collateral Agent by reason
of any alleged obligations or undertakings on its part to perform or discharge
any of the terms, covenants or agreements contained in any Lease, REGARDLESS OF WHETHER SUCH


 


27

















 


LIABILITY, LOSS, DAMAGE, CLAIMS OR DEMANDS ARE THE
RESULT OF THE NEGLIGENCE OF THE COLLATERAL AGENT, UNLESS SUCH LOSS IS CAUSED BY
THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT.
Should the Collateral Agent incur any such liability, the amount thereof,
including costs, expenses and reasonable attorneys’ fees, shall be subject to
and covered by Paragraph 2.3 hereof. Nothing in this Paragraph shall
impose any duty, obligation or responsibility upon the Collateral Agent for the
control, care, management or repair of the Mortgaged Property, nor for the
carrying out of any of the terms and conditions of any such Lease; nor shall it
operate to make the Collateral Agent responsible or liable for any waste
committed on the Mortgaged Property by the tenants or by any other parties or
for any dangerous or defective condition of the Mortgaged Property, OR FOR ANY NEGLIGENCE IN THE MANAGEMENT, UPKEEP, REPAIR OR CONTROL OF
THE MORTGAGED PROPERTY RESULTING IN LOSS OR INJURY OR DEATH TO ANY TENANT,
LICENSEE, EMPLOYEE OR STRANGER, UNLESS SUCH LOSS OR INJURY RESULTS FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT. Grantor
hereby assents to, ratifies and confirms any and all actions of the Collateral
Agent with respect to the Mortgaged Property taken under this Paragraph and
agrees that the foregoing indemnity shall not terminate upon release,
foreclosure or other termination of this Mortgage.


 


5.2           Remedies. (a) Upon the occurrence
of any Default, the Collateral Agent may take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against the
Grantor and in and to the Mortgaged Property, including, but not limited to,
the following actions, each of which may be pursued concurrently or otherwise,
at such time and in such order as the Collateral Agent may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of the Collateral Agent: (i) institute proceedings for the complete
foreclosure of this Mortgage in which case the Mortgaged Property may be sold
for cash or upon credit in one or more parcels under ordinary or executory
process, at the Collateral Agent’s sole option, and with or without
appraisement, appraisement being expressly waived; or (ii) to the extent
permitted and pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Mortgage for the portion of the
Indebtedness then due and payable, subject to the continuing lien of this
Mortgage for the balance of the Indebtedness not then due; or (iii) institute
an action, suit or proceeding in equity for the specific performance of any
covenant, condition or agreement contained in this Mortgage, the Credit
Agreement or any other Loan Document; or (iv) recover judgment on the
Indebtedness either before, during or after any proceedings for the enforcement
of this Mortgage; or (v) apply for the appointment of a trustee, receiver,
liquidator or conservator of the Mortgaged Property, without regard for the
adequacy of the security for the Indebtedness and without regard for the
solvency of the Grantor or the Borrowers or of any other person, firm or other
entity liable for the payment of the Indebtedness; or (vi) pursue such other
remedies as the Collateral Agent may have under applicable law, including,
without limitation, as a secured party under the Uniform Commercial Code. In
conjunction with the Collateral Agent’s rights and remedies under the preceding
clause (vi), upon the occurrence of a Default, the Collateral Agent may
exercise its rights of enforcement with respect to the Personal Property under
La. R.S. 10:9-101 et seq. (the


 


28

















 


“UCC”), and in conjunction
with, in addition to or in substitution for those rights and remedies:


 


(1)           the
Collateral Agent may enter upon the Mortgaged Property to take possession of,
assemble and collect the Personal Property or to render it unusable; and


 


(2)           the
Collateral Agent may require Grantor to assemble the Personal Property and make
it available at a place the Collateral Agent designates which is mutually convenient
to allow the Collateral Agent to take possession or dispose of the Personal
Property; and


 


(3)           written
notice mailed to Grantor as provided herein ten (10) days prior to the date of
public sale of the Personal Property or prior to the date after which any
private sale of the Personal Property will be made shall constitute reasonable
notice; and


 


(4)           any
sale made pursuant to the provisions of this Paragraph shall be deemed to have
been a public sale conducted in a commercially reasonable manner if held
contemporaneously with the sale of the Mortgaged Property under power of sale
as provided herein upon giving the same notice with respect to the sale of the
Personal Property hereunder as is required for such sale of the Mortgaged
Property under power of sale; and


 


(5)           in
the event of a foreclosure sale, the Personal Property and the Mortgaged
Property may, at the option of the Collateral Agent, be sold as a whole; and


 


(6)           it
shall not be necessary that the Collateral Agent take possession of the Personal
Property or any part thereof prior to the time that any sale pursuant to the
provisions of this Paragraph is conducted and it shall not be necessary that
the Personal Property or any part thereof be present at the location of such
sale; and


 


(7)           prior
to application of proceeds of disposition of the Personal Property to the
Indebtedness, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like
and the reasonable attorneys’ fees and legal expenses incurred by the
Collateral Agent; and


 


(8)           any
and all statements of fact or other recitals made in any bill of sale or
assignment or other instrument evidencing any foreclosure sale hereunder as to
nonpayment of the Indebtedness or as to the occurrence of any Default, or as to
the Collateral Agent having declared all of such Indebtedness to be due and
payable, or as to notice of time, place and terms of sale and of the properties
to be sold having been duly given, or as to any other act or thing having been
duly done by the Collateral Agent, shall be taken as prima facie evidence of
the truth of the facts so stated and recited; and


 


(9)           the
Collateral Agent may appoint or delegate any one or more persons as agent to
perform any act or acts necessary or incident to any sale held by the
Collateral


 


29

















 


Agent, including the sending of notices and the
conduct of the sale, but in the name and on behalf of the Collateral Agent.


 


(b)           The
proceeds or avails of any sale made under or by virtue of this Section,
together with any other sums which then may be held by the Collateral Agent
under this Mortgage, whether under the provisions of this Section or otherwise,
shall be applied by the Collateral Agent to payment of the Indebtedness in the
following order unless a court of competent jurisdiction shall otherwise
direct:


 


(i)            FIRST, to
payment of all costs and expenses of the Collateral Agent incurred in
connection with the collection and enforcement of the Indebtedness or of the
mortgage, security interest and collateral assignment granted to the Collateral
Agent pursuant to this Mortgage;


 


(ii)           SECOND,
in accordance with Section 8.3 of the Credit Agreement.


 


(c)           Upon any
sale made under or by virtue of this Section, the Collateral Agent may bid for
and acquire the Mortgaged Property or any part thereof and in lieu of paying
cash therefor may make settlement for the purchase price by crediting upon the
Indebtedness the net sales price after deducting therefrom the expenses of the
sale and the costs of the action and any other sums which the Collateral Agent
is authorized to deduct under this Mortgage.


 


(d)           The
Collateral Agent may proceed under this Mortgage solely as to the immovable
property interests separate and apart from any other collateral documents by
the Mortgagor or any other Security Party securing the payment and performance
of the Indebtedness (including without limitation any security agreement by the
Grantor covering its personal (movable) properties, including without
limitation equipment and inventory located on or about the Land), or as to both
the immovable and movable property interests in accordance with its rights and
remedies in respect of the immovable property interests. The Collateral Agent
may proceed under this Mortgage solely as to the immovable property interests,
or under the UCC solely as to the movable property interests, or as to both the
immovable and movable property interests in accordance with its rights and
remedies in respect of the immovable property interests.


 


(e)           Upon the
occurrence of any Default, the Collateral Agent may additionally take any one
or more of the following actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as the Collateral Agent may
determine, in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of the :  (i)
the Collateral Agent may notify any and all tenants of the Land or the
Improvements to pay all Rents due thereafter directly to the Collateral Agent
at the address set forth in the Collateral Agent’s notice to such tenants; the
Grantor irrevocably agrees that all such tenants shall be authorized to pay the
Rents directly to the Collateral Agent without liability of such tenants for
the determination of the actual existence of any Default claimed by the
Collateral Agent, and the tenants shall be expressly relieved of any and all
duty, liability and obligation to the Grantor in


 


30

















 


connection with any and all Rents so paid; or (ii) the Collateral Agent
may enter upon and take possession of the Mortgaged Property, to manage and
operate the Mortgaged Property and the Grantor’s business on the Mortgaged
Property, and take possession of and use all books of account and financial
records of the Grantor and its property managers or representatives, if any,
relating to the Mortgaged Property; or (iii) the Collateral Agent may alter,
modify, amend, terminate or permit the surrender of any or all Leases, and the
Collateral Agent may execute new Leases of any part of the Mortgaged Property,
including Leases that extend beyond the maturity date of the Indebtedness. The
enforcement of any and all such rights available to the Collateral Agent
hereunder shall continue for so long as the Collateral Agent shall elect,
notwithstanding that the collection and application of the Rents may have cured
the original default. Following the exercise of any of the foregoing rights,
the Collateral Agent may, at its sole option, through written notice to the
Grantor, permit the Grantor to reenter and take possession of the Mortgaged
Property or any part thereof, and to perform all acts necessary for the
operation and maintenance of the Mortgaged Property, including the right to
collect the Rents, but the Collateral Agent shall nevertheless have the right,
effective upon written notice, to demand, sue for possession of and collect the
Rents under the Leases and otherwise exercise its rights under this Mortgage
again.


 


5.3           Set-Off. Upon the occurrence of any
Default, the Collateral Agent shall have the right to set-off any funds of the
Grantor in the possession of any Lender (other than tenant security deposits
under Leases) against any amounts then due by the Grantor or the Borrowers
pursuant to the Credit Agreement or by the Grantor pursuant to this Mortgage or
any other collateral document securing the Indebtedness.


 


5.4           Confession of Judgment. For
purposes of foreclosure under Louisiana executory process procedures, the
Grantor hereby acknowledges the Indebtedness and confesses judgment in favor of
Collateral Agent and the Lenders and the Creditors for the full amount of the
Indebtedness.


 


5.5           Attorney Fees. In case the
Indebtedness is placed in the hands of attorneys at law for the filing of
foreclosure proceedings, to protect the rights of the Collateral Agent or the
Lenders or the Creditors or to enforce any of the agreements contained in this
Mortgage, the Grantor will pay all costs of collection, including but not
limited to reasonable attorneys’ fees, incurred in connection with the
protection of or realization of collateral or in connection with any of the
Collateral Agent’s collection efforts, whether or not suit on the Indebtedness
or any foreclosure proceedings are filed. The Grantor further agrees that the
Indebtedness shall be increased by the amount of said costs and fees.


 


5.6           Keeper. In the event the Mortgaged
Property, or any part thereof, is seized as an incident to an action for the
recognition or enforcement of this Mortgage by executory process, ordinary
process, sequestration, writ of fieri facias or otherwise, the Grantor agrees
that the court issuing any such order shall, if petitioned for by the
Collateral Agent, direct the applicable sheriff to appoint as a keeper of the
Mortgaged Property, the Collateral Agent or any agent designated by Collateral
Agent or any person named by the Collateral Agent at the time such seizure is
effected. This designation is pursuant to La. R.S. 9:5136 through 5140.2,
inclusive, as the same


 


31

















 


may be amended, and the Collateral Agent shall be entitled to all the
rights and benefits afforded thereunder. It is hereby agreed that the keeper
shall be entitled to receive reasonable compensation in excess of its
reasonable costs and expenses incurred in the administration or preservation of
the Mortgaged Property. The designation of keeper made herein shall not be
deemed to require the Collateral Agent to provoke the appointment of such a
keeper.


 


5.7           Waivers. The Grantor waives in
favor of the Collateral Agent and the Lenders and the Creditors any and all
homestead exemptions and other exemptions of seizure or otherwise to which the
Grantor is or may be entitled under the constitution and statutes of the State
of Louisiana insofar as the Mortgaged Property is concerned. The Grantor
further waives:  (a) the benefit of
appraisement as provided in Louisiana Code of Civil Procedure Articles 2332,
2336, 2723 and 2724, and all other laws conferring the same; (b) the demand and
three days delay accorded by Louisiana Code of Civil Procedure Articles 2639
and 2721; (c) the notice of seizure required by Louisiana Code of Civil
Procedure Articles 2293 and 2721; (d) the three days delay provided by
Louisiana Code of Civil Procedure Articles 2331 and 2722; and (e) the benefit
of the other provisions of Louisiana Code of Civil Procedure Articles 2331,
2722 and 2723, not specifically mentioned above.


 


5.8           Authentic Evidence. Any and all
declarations of facts made by authentic act before a notary public in the
presence of two witnesses by a person declaring that such facts lie within his
knowledge, shall constitute authentic evidence of such facts for the purpose of
executory process.


 


5.9           Partial Foreclosure. In the event
of a Default in the payment of any part of the Indebtedness, the Collateral
Agent shall have the right to proceed with foreclosure of the liens and
security interests evidenced hereby without declaring the entire Indebtedness
due, and in such event any such foreclosure sale may be made subject to the
unmatured part of the Indebtedness; and any such sale shall not in any manner
affect the unmatured part of the Indebtedness, but as to such unmatured part
this Mortgage shall remain in full force and effect just as though no sale had
been made. The proceeds of any such sale shall be applied as provided in Section
5.2(b) except that the amount paid under subparagraph SECOND thereof shall
be only the matured portion of the Indebtedness and any proceeds of such sale
in excess of those provided for in subparagraphs FIRST and SECOND (modified as
provided above) shall be applied to installments of principal of and interest
on the Notes in the inverse order of maturity. Several sales may be made
hereunder without exhausting the right of sale for any unmatured part of the
Indebtedness.


 


5.10         Remedies Cumulative. All remedies
herein expressly provided for are cumulative of any and all other remedies
existing at law or in equity and are cumulative of any and all other remedies
provided for in any of the other Loan Documents, or any part thereof, or
otherwise benefiting the Collateral Agent, and the Mortgagee shall, in addition
to the remedies herein provided, be entitled to avail themselves of all such
other remedies as may now or hereafter exist at law or in equity for the
collection of the Indebtedness and the enforcement of the covenants herein and
the foreclosure of the liens and security interests evidenced hereby, and


 


32

















 


resort to any remedy provided for hereunder or under any such Loan
Documents or provided for by law shall not prevent the concurrent or subsequent
employment of any other appropriate remedy or remedies.


 


5.11         Waiver. To the full extent Grantor
may do so, Grantor agrees that Grantor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
pertaining to the rights and remedies of sureties or providing for any
appraisement, valuation, stay, extension or redemption, and Grantor, for
Grantor and Grantor’s heirs, devisees, representatives, successors and assigns,
and for any and all persons ever claiming any interest in the Mortgaged
Property, to the extent permitted by law, hereby waives and releases all rights
of redemption, valuation, appraisement, stay of execution, notice of intention
to mature or declare due the whole of the Indebtedness, notice of election to
mature or declare due the whole of the Indebtedness and all rights to a
marshaling of the assets of Grantor, including, without limitation, the
Mortgaged Property, or to a sale in inverse order of alienation in the event of
foreclosure of the liens and security interests hereby created. Grantor shall
not have or assert any right under any statute or rule of law pertaining to the
marshaling of assets, sale in inverse order of alienation, the exemption of
homestead, the administration of estates of decedents or other matters whatever
to defeat, reduce or affect the right of the Collateral Agent under the terms
of this Mortgage to a sale of the Mortgaged Property for the collection of the
Indebtedness without any prior or different resort of collection, or the right
of the Collateral Agent under the terms of this Mortgage to the payment of such
Indebtedness out of the proceeds of sale of the Mortgaged Property in
preference to every other claimant whatever. If any law referred to in this
Paragraph and now in force, of which Grantor or Grantor’s heirs, devisees,
representatives, successors and assigns and such other persons claiming any
interest in the Mortgaged Property might take advantage despite this Paragraph,
shall hereafter be repealed or cease to be enforced, such law shall not
thereafter be deemed to preclude the application of this Paragraph.


 


5.12         Delivery of Possession After Foreclosure.
Except as provided in any applicable subordination, nondisturbance and
attornment agreement between the Collateral Agent and a tenant of the Mortgaged
Property, in the event there is a foreclosure sale hereunder and at the time of
such sale Grantor or Grantor’s heirs, devisees, representatives, successors or
assigns or any other persons claiming any interest in the Mortgaged Property
by, through or under Grantor are occupying or using the Mortgaged Property, or
any part thereof, each and all shall immediately become the tenant of the
purchaser at such sale, which tenancy shall be a tenancy from day-to-day,
terminable at the will of either landlord or tenant, at a reasonable rental per
day based upon the value of the property occupied, such rental to be due daily
to the purchaser. In the event the tenant fails to surrender possession of said
property upon demand, the purchaser shall be entitled to institute and maintain
an action for forcible entry and detainer of said property in the appropriate
court having jurisdiction.


 


5.13         Tender After Acceleration. If,
following the occurrence of a Default and the acceleration of the Indebtedness
but prior to the foreclosure of this Mortgage, Grantor shall tender to the
Collateral Agent payment of an amount sufficient to pay the entire
Indebtedness,


 


33

















 


such tender shall be deemed to be a voluntary prepayment under the
Notes and, consequently, Grantor shall also pay to the Collateral Agent any
charge or premium required under the Notes or any other Loan Documents to be
paid in order to prepay principal and, if such principal payment is made during
any period when prepayment is prohibited by this Mortgage, the Notes or any of
the other Loan Documents the applicable charge or premium shall be the maximum
prepayment penalty provided for in the Notes; provided, however, that in the
event any amount payable under this Paragraph is deemed interest, in no event
shall such amount when added to the interest otherwise payable on the Notes and
the other Indebtedness exceed the maximum interest permitted under applicable
law.


 


ARTICLE VI


MISCELLANEOUS


 


6.1           Defeasance. If all of the Indebtedness
is paid as the same becomes due and payable and if all of the covenants,
warranties, undertakings and agreements made in this Mortgage are kept and  performed, then and in that event only, all
rights under this Mortgage shall terminate and the Mortgaged Property shall
become wholly clear of the liens, security interests, conveyances and
assignments evidenced hereby, which shall be released by the Collateral Agent
in due form at Grantor’s cost.


 


6.2           Maximum Indebtedness. The maximum
amount of the Indebtedness that may be outstanding at any time and from time to
time that this Mortgage, including without limitation as a mortgage and as an
assignment of the Rents and the Leases and including any amounts incurred by
Collateral Agent under Section 2.2(j) hereof, secures is Three Hundred Million
Dollars ($300,000,000.00).


 


6.3           Maturity. A portion of the
Indebtedness matures on August 13, 2009.


 


6.4           Waiver by the Collateral Agent. The
Collateral Agent may at any time and from time to time in writing (a) waive compliance
by Grantor with any covenant herein made by Grantor to the extent and in the
manner specified in such writing; (b) consent to Grantor doing any act which
hereunder Grantor is prohibited from doing, or consent to Grantor failing to do
any act which hereunder Grantor is required to do, to the extent and in the
manner specified in such writing; (c) release any part of the Mortgaged
Property, or any interest therein, from the lien and security interest of this
Mortgage without the joinder of Mortgagee; or (d) release any party liable,
either directly or indirectly, for the Indebtedness or for any covenant herein
or in any of the other Loan Documents now or hereafter securing the payment of
the Indebtedness, without impairing or releasing the liability of any other
party. No such act shall in any way impair the rights of the Collateral Agent
hereunder except to the extent specifically agreed to by the Collateral Agent
in such writing.


 


6.5           Actions by the Collateral Agent. The
lien, security interest and other security rights of the Collateral Agent
hereunder shall not be impaired by any indulgence, moratorium or release
granted by the Collateral Agent, including but not limited to (a) any renewal,
extension,


 


34

















 


increase or modification which the Collateral Agent may grant with
respect to any of the Indebtedness; (b) any surrender, compromise, release,
renewal, extension, exchange or substitution which the Collateral Agent may
grant in respect of the Mortgaged Property, or any part thereof or any interest
therein; or (c) any release or indulgence granted to any endorser, guarantor or
surety of any of the Indebtedness. The taking of additional security by the
Collateral Agent shall not release or impair the lien, security interest or
other security rights of the Collateral Agent hereunder or affect the liability
of Grantor or of any endorser or guarantor or other surety or improve the
rights of any permitted junior lienholder in the Mortgaged Property.


 


6.6           Rights of the Collateral Agent. The
Collateral Agent may waive any Default without waiving any other prior or
subsequent Default. The Collateral Agent may remedy any default without waiving
the Default remedied. Neither the failure by the Collateral Agent to exercise,
nor the delay by the Collateral Agent in exercising, any right, power or remedy
upon any Default shall be construed as a waiver of such Default or as a waiver
of the right to exercise any such right, power or remedy at a later date. No
single or partial exercise by the Collateral Agent of any right, power or
remedy hereunder shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right, power or remedy hereunder may be
exercised at any time and from time to time. No modification or waiver of any
provision hereof nor consent to any departure by Grantor therefrom shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent and then such waiver or consent shall be effective only in the
specific instances, for the purpose for which given and to the extent therein
specified. No notice to nor demand on Grantor in any case shall of itself
entitle Grantor to any other or further notice or demand in similar or other
circumstances. Acceptance by the Collateral Agent of any payment in an amount
less than the amount then due on any of the Indebtedness shall be deemed an
acceptance on account only and shall not in any way affect the existence of a
Default hereunder.


 


6.7           Notification of Account Debtors. The
Collateral Agent may at any time after Default by Grantor notify the account
debtors or obligors of any accounts, chattel paper, negotiable instruments or
other evidences of indebtedness included in the Personal Property to pay the Collateral
Agent directly.


 


6.8           Reproduction as Financing Statement. A
carbon, photographic or other reproduction of this Mortgage or of any financing
statement relating to this Mortgage shall be sufficient as a financing
statement.


 


6.9           Fixture Filing. This
Mortgage shall be effective as a financing statement filed as a fixture filing
with respect to all fixtures now or hereafter included within the Mortgaged
Property and is to be filed for record in the real property records in the
Office of the Parish Clerk for the parish or counties where the Mortgaged
Property (including said fixtures) is situated. This Mortgage shall also be
effective as a financing statement covering as-extracted collateral, and is to
be filed for record in the real property records of the parish where the
Mortgaged Property is situated. The mailing address of Grantor (debtor) is set
forth on the first page of this


 


35

















 


Mortgage and the address of the Collateral Agent (secured party) from
which information concerning the security interest may be obtained is the
address of the Collateral Agent set forth in Paragraph 1.1 of this
Mortgage. Grantor is a corporation, the Grantor’s jurisdiction of organization
is Louisiana, and the Grantor’s organizational identification number is
105301600.


 


6.10         Filing and Recordation. Grantor
will cause this Mortgage and all amendments and supplements thereto and
substitutions therefor and all financing statements and continuation statements
relating hereto to be recorded, filed, re-recorded and refiled in such manner
and in such places as the Mortgagee shall reasonably request, and will pay all
such recording, filing, re-recording and refiling taxes, fees and other charges.
Grantor hereby authorizes the Mortgagee to file any financing statement or
financing statement amendment covering the Personal Property or relating to the
security interest created herein.


 


6.11         Dealing with Successor. In the
event the ownership of the Mortgaged Property or any part thereof becomes
vested in a person other than Grantor, the Collateral Agent may, without notice
to Grantor, deal with such successor or successors in interest with reference
to this Mortgage and to the Indebtedness in the same manner as with Grantor,
without in any way vitiating or discharging Grantor’s liability hereunder or
for the payment of the Indebtedness; provided, however, nothing in this
Paragraph shall be construed as permitting any transfer of the Mortgaged
Property which would constitute a Default under this Mortgage. No sale of the
Mortgaged Property, no forbearance on the part of the Collateral Agent and no
extension of the time for the payment of the Indebtedness given by the
Collateral Agent shall operate to release, discharge, modify, change or affect,
in whole or in part, the liability of Grantor hereunder or for the payment of
the Indebtedness or the liability of any other person hereunder or for the
payment of the Indebtedness, except as agreed to in writing by the Collateral
Agent.


 


6.12         Place of Payment. The Indebtedness
shall be payable at the place designated in the Credit Agreement, or if no such
designation is made, at the office of the Collateral Agent at the address
indicated in this Mortgage, or at such other place as the Collateral Agent may
designate in writing.


 


6.13         Subrogation. To the extent that
proceeds of the Notes are used to pay indebtedness secured by any outstanding
lien, security interest, charge or prior encumbrance against the Mortgaged
Property, such proceeds have been advanced by the Collateral Agent at Grantor’s
request and the Collateral Agent shall be subrogated to any and all rights,
security interests and liens owned or held by any owner or holder of such
outstanding liens, security interests, charges or encumbrances, irrespective of
whether said liens, security interests, charges or encumbrances are released;
provided, however, that the terms and provisions of this Mortgage shall govern
the rights and remedies of the Collateral Agent and shall supersede the terms,
provisions, rights and remedies under and pursuant to the instruments creating
the liens, security interests, charges or encumbrances to which the Collateral
Agent is subrogated hereunder.


 


6.14         Application of Indebtedness. If any
part of the Indebtedness cannot be lawfully secured by this Mortgage or if any
part of the Mortgaged Property cannot be lawfully subject to


 


36

















 


the lien and security interest hereof to the full extent of the
Indebtedness, then all payments made shall be applied on said Indebtedness
first in discharge of that portion thereof which is unsecured by this Mortgage.


 


6.15         Usury. This Mortgage has been
executed under, and shall be construed and enforced in accordance with, the
laws of the State of Louisiana, except as such laws are preempted by federal
law. This Mortgage and all of the other Loan Documents are intended to be
performed in accordance with, and only to the extent permitted by, all
applicable usury laws. If any provision hereof or of any of the other Loan
Documents or the application thereof to any person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, neither the
application of such provision to any other person or circumstance nor the
remainder of the instrument in which such provision is contained shall be
affected thereby and shall be enforced to the greatest extent permitted by
Applicable Laws. It is expressly stipulated and agreed to be the intent of
Grantor and the Collateral Agent to at all times comply with the usury and
other applicable laws now or hereafter governing the interest payable on the
Indebtedness. If the applicable law is ever revised, repealed or judicially
interpreted so as to render usurious any amount called for under the Notes or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved or received with respect to the Indebtedness, or if the Collateral
Agent’s exercise of the option to accelerate the maturity of the Indebtedness,
or if any prepayment of the Indebtedness results in the payment of any interest
in excess of that permitted by law, then it is the  express intent of Grantor and the Collateral
Agent that all excess amounts theretofore collected by the Collateral Agent be
credited on the principal balance of the Notes (or, if the Notes and all of
such other Indebtedness have been paid in full, refunded), and the provisions
of the Notes and the other Loan Documents immediately be deemed reformed and
the amounts thereafter collectable hereunder and thereunder reduced, without
the necessity of the execution of any new document, so as to comply with the
then Applicable Laws, but so as to permit the recovery of the fullest amount
otherwise called for hereunder or thereunder. All sums paid, or agreed to be
paid, for the use, forbearance , detention, taking, charging, receiving or
reserving on the Indebtedness shall, to the extent permitted by Applicable
Laws, be amortized, prorated, allocated and spread throughout the full term of
such Indebtedness until payment in full so that the rate or amount of interest
on account of such Indebtedness does not exceed the usury ceiling from time to
time in effect and applicable thereto for so long as debt is outstanding under
the Indebtedness.


 


6.16         Notice. Any notice, request, demand
or other communication required or permitted hereunder shall be given and
received in accordance with Article 16 of the Credit Agreement.


 


6.17         Heirs, Successors and Assigns. The
terms, provisions, covenants and conditions hereof shall be binding upon
Grantor, and the heirs, devisees, representatives, successors and assigns of
Grantor including all successors in interest of Grantor in and to all or any
part of the Mortgaged Property, and shall inure to the benefit of the Mortgagee
and its heirs, successors, substitutes and assigns and shall constitute
covenants running with the Land. All references in


 


37

















 


this Mortgage to Grantor or the Mortgagee or the Collateral Agent shall
be deemed to include all such heirs, devisees, representatives, successors,
substitutes and assigns.


 


6.18         Severability. A determination that
any provision of this Mortgage is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and any determination that
the application of any provision of this Mortgage to any person or circumstance
is illegal or unenforceable  shall not
affect the enforceability or validity of such provision as it may apply to any
other persons or circumstances.


 


6.19         Gender and Number. Within this
Mortgage, words of any gender shall be held and construed to include any other
gender, and words in the singular number shall be held and construed to include
the plural and words in the plural number shall be held and construed to
include the singular, unless in each instance the context otherwise requires.


 


6.20         Counterparts. This Mortgage may be
executed in any number of counterparts with the same effect as if all parties
hereto had signed the same document. All such counterparts shall be construed
together and shall constitute one instrument, but in making proof hereof it
shall only be necessary to produce one such counterpart.


 


6.21         Joint and Several. Where two or
more persons or entities have executed this Mortgage, unless the context
clearly indicates otherwise, the term “Grantor” as
used in this Mortgage means the grantors hereunder or either or any of them and
the obligations of Grantor hereunder shall be joint and several.


 


6.22         Reporting Requirements. Grantor
agrees to comply with any and all reporting requirements applicable to the
transaction evidenced by the Notes and secured by this Mortgage which are set
forth in any law, statute, ordinance, rule, regulation, order or determination
of any governmental authority (including, but not limited to, The International
Investment Survey Act of 1976, The Agricultural Foreign Investment Disclosure
Act of 1978, The Foreign Investment in Real Property Tax Act of 1980 and the
Tax Reform Act of 1984) and further agrees upon request of the Collateral Agent
to furnish the Collateral Agent with evidence of such compliance.


 


6.23         Headings. The Paragraph headings
contained in this Mortgage are for convenience only and shall in no way enlarge
or limit the scope or meaning of the various and several Paragraphs hereof.


 


6.24         Consent of the Collateral Agent. Except
where otherwise provided herein, in any instance hereunder where the approval,
consent or the exercise of judgment of the Collateral Agent is required, the
granting or denial of such approval or consent and the exercise of such
judgment shall be within the sole discretion of the Collateral Agent, and the
Collateral Agent shall not, for any reason or to any extent, be required to
grant such approval or consent or exercise such judgment in any particular
manner, regardless of the reasonableness of either the request or the
Collateral Agent’s judgment.


 


38

















 


6.25         Modification or Termination. The
Loan Documents may only be modified or terminated by a written instrument or
instruments executed by the party against which enforcement of the modification
or termination is asserted. Any alleged modification or termination which is
not so documented shall not be effective as to any party. Grantor agrees that
it shall be bound by any modification of this Mortgage or any of the other Loan
Documents made by the Collateral Agent and any subsequent owner of the
Mortgaged Property, with or without notice to or consent of Grantor, and no
such modification shall impair the obligations of Grantor under this Mortgage
or under any other Loan Document.


 


6.26         Negation of Partnership. Nothing
contained in the Loan Documents is intended to create any partnership, joint
venture or association between Grantor and the Collateral Agent, or in any way
make the Collateral Agent a co-principal with Grantor with reference to the
Mortgaged Property, and any inferences to the contrary are hereby expressly
negated.


 


6.27         Entire Agreement. The Loan
Documents constitute the entire understanding and agreement between Grantor and
the Collateral Agent with respect to the transactions arising in connection
with the Indebtedness and supersede all prior written or oral understandings
and agreements between Grantor and the Collateral Agent with respect thereto. Grantor
hereby acknowledges that, except as incorporated in writing in the Loan
Documents, there are not, and were not, and no persons are or were authorized
by the Collateral Agent to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
transaction which is the subject of the Loan Documents.


 


6.28         Applicable Law. THIS MORTGAGE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF LOUISIANA (WITHOUT GIVING EFFECT
TO LOUISIANA’S PRINCIPLES OF CONFLICTS OF LAW) AND THE LAW OF THE UNITED STATES
APPLICABLE TO TRANSACTIONS IN SUCH STATE; PROVIDED, HOWEVER, WITH RESPECT TO
THE MAXIMUM RATE OF INTEREST THAT CAN BE CHARGED AND COLLECTED, THE LAWS
GOVERNING THE NOTES SHALL BE APPLICABLE. GRANTOR HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY LOUISIANA OR FEDERAL COURT SITTING IN NEW
ORLEANS, LOUISIANA (OR ANY PARISH IN LOUISIANA WHERE ANY PORTION OF THE
PROPERTY IS LOCATED) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, AND GRANTOR HEREBY AGREES AND CONSENTS
THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER
APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY LOUISIANA OR FEDERAL COURT SITTING IN NEW ORLEANS, LOUISIANA (OR SUCH
OTHER PARISH IN LOUISIANA) MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO GRANTOR AT THE ADDRESS OF GRANTOR FOR THE GIVING
OF NOTICES SET FORTH IN THIS MORTGAGE, AND SERVICE SO MADE SHALL BE


 


39

















 


COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE
BEEN SO MAILED. Without limiting the generality of the
foregoing, as an assignment of Rents and Leases, this Mortgage shall be
governed by and construed in accordance with La. R.S. 9:4401, as amended from
time to time, and as a security agreement, this Mortgage shall be governed by
and construed in accordance with the UCC; provided, that if by reason of
mandatory provisions of law, the perfection or the effect of perfection or
non-perfection of the security interests in any Personal Property is governed
by the Uniform Commercial Code as in effect in a jurisdiction other than
Louisiana, then this Mortgage, in such regard, shall be governed by the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or effect of perfection or non-perfection.


 


6.29         Waiver of Jury Trial.
GRANTOR AND THE COLLATERAL AGENT, FOR ITSELF AND THE CREDITORS (BY ITS
ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY, AND UNCONDITIONALLY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN GRANTOR AND THE COLLATERAL
AGENT ARISING OUT OF OR IN ANY WAY RELATED TO THIS MORTGAGE OR ANY OTHER LOAN
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE CREDITORS TO PROVIDE
THE FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.


 


6.30         Certificates. The production of
mortgage and conveyance certificates, tax researches, and other usual and
customary certificates is waived by consent and all parties hereby agree to
hold me, Notary, harmless for failure to procure and attach same to this
Mortgage.


 


6.31         Lender Acceptance. Grantor
acknowledges and agrees that this Mortgage need not be signed by Collateral
Agent, whose consent is presumed and whose acceptance is tacit.


 


40

















 


THUS DONE AND PASSED on
the day and in the month and year hereinabove first written, in the presence of
the undersigned witnesses who hereunto sign their names with the Grantor and
me, Notary, after due reading of the whole.


 


 


	
  WITNESSES:

  	
   

  	
  Grantor:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  STOLTHAVEN NEW ORLEANS, LLC

  
	
  Printed Name:Michael Timpone

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name: Alan
  Winsor

  
	
  Printed Name: John Greenwood

  	
   

  	
   

  	
  Title: Attorney-in-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  NOTARY PUBLIC

  
									



 


41

















 


EXHIBIT “A”


 


TO


 


MORTGAGE, SECURITY
AGREEMENT AND


ASSIGNMENT OF
RENTS AND LEASES


EXECUTED BY
STOLTHAVEN NEW ORLEANS L.L.C.,


AS GRANTOR


 


TRACT I 


 


All that tract, piece or
parcel of land situated, lying and being East of the Mississippi River in Section 1
of Township 13 South, Range 12 East, Section 24 of Township 14 South,
Range 12 East, Sections 1 and 2 of Township 13 South, Range 13 East, and
Sections 1 and 2 of Township 14 South, Range 13 East, Braithwaite Plantation,
formerly known as Orange Grove Plantation, Plaquemines Parish, State of
Louisiana, being more particularly described as follows:


 


Commencing at a point
marked by an iron rail set in concrete in The Alabama Great Southern Railroad
Company’s (“Railroad”) Easterly or Upper property line as described in
the deed recorded in the Conveyance Office of Plaquemines Parish, Louisiana at
Book 225, Folio 23, said point being 75.00 feet distant Southwardly, as
measured normal, from the original centerline of main track of the former
Louisiana Southern Railway Company; then go N15°24’00”W as measured along said
Railroad’s Easterly or Upper property line, intersecting said original
centerline of main track at Railway Valuation Station 709+83.7, a distance of
203.46 feet to a point on the Northerly right-of-way line of State of Louisiana
Highway No. 39; then go N70°42’17”W along said Northerly right-of-way line
a distance of 2116.42 feet to a point on the Easterly line of a railroad spur
track servitude conveyed by Railroad to Stolthaven New Orleans, L.L.C. by
Servitude Agreement dated August 10, 2000, recorded in the Conveyance
Office of Plaquemines Parish, Louisiana in Book 980, Folio 145; then go S41°00’11”E
a distance of 100.91 feet to a point at the Southeast corner of said spur track
servitude; then go N70°42’17”W along the centerline of State of Louisiana Route
No. 39 (100 feet wide along this course) a distance of 797.82 feet to a
point on the East line of said Section 2 of Township 13 South, Range 13
East, and Section 2 of Township 14 South, Range 13 East, said point being
the TRUE POINT OF BEGINNING for the herein described tract of land;


 


thence along said
centerline of State of Louisiana Highway No. 39 (100 feet wide) the
following five (5) courses:


 


1)                                      N70°42’17”W
a distance of 320.06 feet to a point of curvature


 


2)                                      600.00
feet along a curve deflecting to the right, said curve having a radius of
22918.30 feet and being subtended by a chord bearing N69°57’17”W a chord
distance of 599.98 feet to a point of tangency


 


3)                                      N69°12’17”W
a distance of 1243.28 feet to a point of curvature


 


4)                                      629.17
feet along a curve deflecting to the right, said curve having a radius of
2864.79 feet and being subtended by a chord bearing N62°54’47”W a chord
distance of 627.90 feet to a point of tangency


 


5)                                      N56°37’17”W
a distance of 355.99 feet to a point of curvature;


 

















 


thence along the “old”
centerline of said State of Louisiana Highway No. 39 and centerline of
said State of Louisiana Highway No. 3137 (80 feet wide) the following four
(4) courses:


 


1)                                      773.89
feet along a curve deflecting to the right, said curve having a radius of
1909.86 feet and being subtended by a chord bearing N45°00’47”W a chord
distance of  768.61 feet to a point of
tangency


 


2)                                      N33°24’17”W
a distance of 592.80 feet to a point of curvature


 


3)                                      1020.87
feet along a curve deflecting to the left, said curve having a radius of
2864.90 feet and being subtended by a chord bearing N43°36’47”W a chord
distance of 1015.48 feet to a point of tangency


 


4)                                      N53°49’17”W
a distance of 328.03 feet to a point on Railroad’s Westerly or Lower property
line as described in the deed recorded in the Conveyance Office of Plaquemines
Parish, Louisiana at Book 226, Folio 63;


 


thence N26°30’48”W along
said Lower property line a distance of 570.00 feet, more or less, to a point on
the Mean Low Water Line of said Mississippi River;


 


thence Southeastwardly
5160 feet, more or less, along the meanders of said Mean Low Water Line being
subtended by a chord bearing S63°55’14”E; a chord distance of 5143.75 feet to a
point on said East line of said Section 2 of Township 13 South, Range 13
East, and Section 2 of Township 14 South, Range 13 East;


 


thence leaving said Mean
Low Water Line S13°42’50”E along said East line of said Section 2 of
Township 13 South, Range 13 East, and Section 2 of Township 14 South,
Range 13 East, a distance of 1493.00 feet, more or less, to the Point of
Beginning.


 


Together with all
buildings, improvements, appurtenances, attachments, rights, ways, privileges,
servitudes, advantages, batture and batture rights thereunto belonging or in
anywise appertaining to the said property.


 


Said tract of land
containing 118.1 acres, more or less, and being substantially as shown on a
Drawing of Braithwaite Plantation prepared by DUFRENE SURVEYING &
ENGINEERING INC. dated October 19, 1998, last revised August 4, 2000.


 


Being the property
acquired by Stolthaven New Orleans, L.L.C. from Railroad by act dated August 10,
2000, recorded in the Conveyance Office of Plaquemines Parish, Louisiana at
Book 980, Folio 134.


 


TRACT II


 


A certain portion of
ground located in Braithwaite Plantation, Plaquemines Parish, Louisiana, in Section 1,
Township 13 South, Range 12 East, Section 24, Township 14 South, Range 13
East, Sections 1 and 2, Township 14 South, Range 13 East, and part of Section 3,
Township 14 South, Range 13 East, being a portion of Lots 22 & 23 of
Tract I, portion of  Lot 29 of Tract 2,
portion of Lot 28 of the Kenilworth Tract, portion of the former E.Z. Opener
Bag Company Tract, portion of property formerly of Gaston Dauterive and portion
of property formerly of Valerie B. Dauterive, and is described as follows:


 


Commence from the intersection of
the upper property line of the Louisiana Southern Railroad which is the line
between Lots 9 & 10, Orange Grove Plantation, with the northerly right
of way line of La. State Highway No. 39 and go North 70 degrees 42 minutes
17 seconds West along the


 

















 


northerly right of way
line of La. State Highway No. 39 a distance of 2,116.42 feet to a point;
thence go South 41 degrees 00 minutes 11 seconds East a distance of 100.91 feet
to a point; thence go North 70 degrees 42 minutes 17 seconds West a distance of
708.53 feet to a point; thence go South 15 degrees 26 minutes 46 seconds East a
distance of 216.31 feet to the POINT OF BEGINNING; thence continue South 15
degrees 26 minutes 46 seconds East a distance of 5,685.50 feet to a point on
the Forty Arpent Line; thence go North 86 degrees 16 minutes 46 seconds West
along the Forty Arpent Line a distance of 265.49 feet to a point; thence go
North 76 degrees 16 minutes 46 seconds West along the Forty Arpent Line a
distance of 966.90 feet to a point; thence go North 61 degrees 01 minutes 46
seconds West along the Forty Arpent Line a distance of 3,116.03 feet to a
point; thence go North 61 degrees 46 minutes 46 seconds West along the Forty
Arpent Line a distance of 748.27 feet to a point; thence go North 11 degrees 26
minutes 46 seconds West a distance of 5,384.74 feet to a point on the southerly
right of way line of La. State Highway No. 39; thence go in an Easterly
direction along the Southerly right of way line of La. State Highway No. 39
on a curve to the right with a radius of 2,241.83 feet, an arc length of 382.34
feet, a chord bearing of South 76 degrees 14 minutes 58 seconds East and a
chord distance of 381.87 feet to a point; thence go South 56 degrees 37 minutes
17 seconds East a distance of 324.93 feet to a point; thence go South 11
degrees 26 minutes 46 seconds East a distance of 70.50 feet to a point; thence
go South 56 degrees 37 minutes 17 seconds East a distance of 1,014.06 feet to a
point of curvature; thence go in an easterly direction on a curve to the left
with a radius of 2,770.00 feet, an arc length of 682.13 feet, a chord bearing
of South 63 degrees 40 minutes 34 seconds East and a chord distance of 680.41
feet to a point of tangency; thence go South 70 degrees 43 minutes 51 seconds
East a distance of 859.91 feet to a point; thence go South 70 degrees 46
minutes 43 seconds East a distance of 1291.39 feet to the POINT OF BEGINNING.


 


All of which is shown on
a plat of survey by Dufrene Surveying & Engineering, Inc., dated June 10,
2003, revised August 1, 2003.


 


Being the property
acquired by Stolthaven New Orleans, L.L.C. from The Alabama Great Southern
Railroad Company by act dated September 26, 2003, recorded in the
Conveyance Office of Plaquemines Parish, Louisiana at Book 1055, Folio 522,
Entry No. 03006963.


 

















 


EXHIBIT “B”


 


TO


 


MORTGAGE, SECURITY
AGREEMENT AND


ASSIGNMENT OF
RENTS AND LEASES


EXECUTED BY
STOLTHAVEN NEW ORLEANS L.L.C.,


AS GRANTOR


 


PERMITTED ENCUMBRANCES


 


None.


 

















 


EXHIBIT E


 


When Recorded, Return To:


 


 


 


 


 


NOTICE OF
CONFIDENTIALITY RIGHTS:  IF YOU ARE A
NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:  YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S
LICENSE NUMBER.


 


DEED OF
TRUST, SECURITY AGREEMENT AND


ASSIGNMENT
OF RENTS AND LEASES


 


	
  STATE OF TEXAS

  	
  ‘

  	
   

  
	
   

  	
  ‘

  	
  KNOW ALL MEN BY
  THESE PRESENTS:

  
	
  COUNTY OF HARRIS

  	
  ‘

  	
   

  



 


THAT, STOLTHAVEN HOUSTON
INC, (“Grantor”, whether one or more),
whose address is 15602 Jacintoport Boulevard, Houston, Texas 77015 for and in
consideration of the sum of TEN DOLLARS ($10.00) to Grantor in hand paid by
Stephen C. Jacobs, Esq., Trustee, of Harris County, Texas (“Trustee”), for the benefit of DnB
NOR Bank ASA, as Collateral Agent for the Lenders (as hereinafter defined), in
order to secure the payment of the Indebtedness (as hereinafter defined) and
the performance of the obligations, covenants, agreements and undertakings of
Grantor hereinafter described, does hereby GRANT, BARGAIN, SELL, CONVEY,
TRANSFER, ASSIGN and SET OVER to Trustee the real estate (the “Land”) situated in the County of
Harris and State of Texas described in Exhibit “A”
attached hereto and made a part hereof, TOGETHER WITH all of Grantor’s
interests, rights and titles in and to the following, whether now owned or
hereafter acquired by Grantor: (a) all buildings, structures, component
parts, other constructions and other improvements now or hereafter attached to
or placed, erected, constructed or developed on the Land together with all
component parts of the foregoing and all appurtenances to such buildings,
structures or improvements, including sidewalks, utility pipes, conduits,
docks, tanks and lines, parking areas and roadways, and including all
alterations, improvements, modifications, renovations and other additions to or
changes in thereto at any time (the “Improvements”);
(b) all materials, equipment, fixtures, furnishings, inventory, apparatus,
fittings and articles of Personal Property (hereinafter defined) whatsoever now
or hereafter delivered to, attached to, installed in, or used in or about the
Improvements or which are necessary or useful for the complete use and
occupancy of the Improvements for the purposes for which they were or are to be
attached, placed, erected, constructed or developed, or which Personal Property
is or may be used in the development of the Improvements (including,
without limiting the generality of the foregoing, , all desks, chairs, filing
cabinets, tables, book cases, credenzas, wall hangings and similar items, power
feed wiring, service piping, storage tanks, product piping, pumps, tank truck
racks, foam piping system, chemical sewer system, wastewater treatment
facility, air emission system, scales, compressed air system, foam pumper
truck, crane truck, backhoe, bulldozer, rail car mover, forklift, spill boat,
vacuum truck and cranes), and all renewals of or replacements or substitutions 


 

















 


for any of the foregoing
whether or not the same shall be attached to the Land or Improvements; (c) all
water and water rights, timber, crops, and minerals and equipment now or
hereafter delivered to and intended to be installed in or on the Land or
Improvements; (d) all building materials and equipment now or hereafter
delivered to and intended to be installed in or on the Land or Improvements; (e) all
security deposits and advance rentals under any lease agreements now or at any
time hereafter arising from or by virtue of any transactions related to the
Land, Improvements or the Personal Property and held by or for the benefit of
Grantor; (f) all monetary deposits which Grantor has given to any public
or private utility with respect to utility services furnished to the Land or
Improvements; (g) all rents, issues, profits, revenues, royalties, bonuses
or other benefits of the Land, the Improvements or the Personal Property,
including, without limitation, cash or securities deposited pursuant to leases
of all or any part of the Land, Improvements or Personal Property; (h) all
proceeds (including premium refunds) of each policy of insurance relating to
the Land, Improvements or Personal Property; (i) all proceeds from the
taking of the Land, Improvements, Personal Property or any part thereof or
any interest or right or estate appurtenant thereto by eminent domain or by
purchase in lieu thereof; (j) all Grantor’s rights (but not its obligations)
under any contracts related to the Land or Improvements; (k) all Grantor’s rights
(but not its obligations) under any documents, contract rights, commitments,
accounts, general intangibles (including trademarks, trade names and symbols
used in connection therewith) arising by virtue of any transactions related to
the Land, Improvements or Personal Property; (l) all deposits, bank accounts,
funds, instruments, notes or chattel paper arising from or related to the Land,
Improvements or Personal Property; (m) all permits, licenses, franchises,
certificates and other rights and privileges obtained in connection with the
Land, Improvements or Personal Property; (n) all plans, specifications, maps,
surveys, reports, architectural, engineering and construction contracts, books
of account, insurance policies and other documents, of whatever kind or
character, relating to the use, construction upon, occupancy, leasing, sale or
operation of the Land or Improvements; (o) all oil, gas and other hydrocarbons
and other minerals produced from or allocated to the Land or Improvements and
all products processed or obtained therefrom, the proceeds thereof, and all
accounts and general intangibles under which such proceeds may arise and
all proceeds of the Personal Property; (p) all agreements, easements,
servitudes and rights of way or use, rights of ingress or egress, privileges,
appurtenances, tenements, hereditaments, prescriptions, advantages and other
rights and benefits at any time belonging to, pertaining to or used in
connection with the Land or Improvements; (q) all right, title and interest of Grantor
in and to all streets, roads, ways, alleys, vaults, public places, easements
and rights-of-way, existing or proposed, public or private, adjoining,
abutting, adjacent or contiguous to or used in connection with, belonging or
pertaining to the Land or any part thereof; and (r) all permits, licenses,
rights, estates, powers, privileges and interests of whatever kind or
character, whether or not of record, appurtenant or incident to the foregoing. All
of the personal property of Grantor which is related in anyway to the Land
and/or the Improvements and all fixtures, accessions and appurtenances thereto
and all renewals or replacements of or substitutions therefore, and all of the
foregoing property above which is personal property is herein collectively referred
to as the “Personal Property”, and all of
the above is herein collectively referred to as the “Mortgaged
Property”. If the estate of Grantor in any of the above-described
property is a leasehold estate (“Leasehold Estate”),
this conveyance shall include, and the lien and security interest created
hereby shall encumber, all additional title,


 


2

















 


estate, interest and
other rights that may hereafter be acquired by Grantor in the property
demised under the Leasehold Estate.


 


TO HAVE AND TO HOLD the
Mortgaged Property, together with the rights, privileges and appurtenances
thereto belonging unto the Trustee and his successors or substitutes, forever
in this trust and to his or their successors and assigns, IN TRUST, however,
upon the terms, provisions and conditions herein set forth.


 


In order to the secure
the payment of the Indebtedness and performance of the obligations, covenants,
agreements and undertakings of Grantor hereinafter described, Grantor hereby
grants to the Collateral Agent (as hereinafter defined) a security interest in
all of the Personal Property, and agrees that the Collateral Agent shall have
all of the rights and remedies with respect to such Personal Property as
provided in this Deed of Trust or at law or in equity, including without
limitation, the remedies provided under Paragraph 5.8 of this Deed of
Trust.


 


ARTICLE I


SECURED
INDEBTEDNESS


 


1.1                                 Secured Indebtedness. This Deed of
Trust, Security Agreement and Assignment of Rents and Leases (the “Deed of Trust”) is made to secure
and enforce the payment of the following obligations, indebtedness, promissory
notes and liabilities: (a) that certain term loan and revolving credit
facility agreement dated August 13, 2004 (as amended, modified,
supplemented or restated from time to time, the “Credit
Agreement”) made by and among (i) the Grantor and
Stolthaven New Orleans LLC, a Louisiana limited liability company (“Stolthaven New Orleans”), as
borrowers (collectively, the “Borrowers”),
(ii) the banks and financial institutions listed on Schedule 1 of the
Credit Agreement, as lenders (together with any bank or financial institution
which becomes a Lender pursuant to Article 10 of the Credit Agreement, the
“Lenders”), (iii) DnB NOR Bank
ASA, acting through its New York Branch (“DnB NOR”),
as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and (iv) DnB
NOR as collateral agent for the Lenders (in such capacity, the “Collateral Agent”), pursuant to
which the Lenders have agreed to provide to the Borrowers a secured term loan
in the amount of up to US$150,000,000 (the “Term Loan”)
and a secured revolving credit facility in the amount of up to US$20,000,000
(the “Revolver”); (b) that certain
promissory note dated August 13, 2004 with respect to the Term Loan in the
original principal amount of One Hundred Fifty Million and No/100 DOLLARS
(US$150,000,000.00), made by Grantor and Stolthaven New Orleans, jointly and
severally and payable to the order of the Administrative Agent, with interest
at the rate or rates therein provided, with principal, interest and other sums
being payable as therein provided; (c) that certain promissory note dated August 13,
2004 with respect to the Revolver in the original principal amount of Twenty
Million and No/100 Dollars (US$20,000,000.00) made by Grantor and Stolthaven
New Orleans, jointly and severally, and payable to the order of the
Administrative Agent, with interest at the rate or rates therein provided, with
principal, interest and other sums being payable as therein provided (such
promissory notes referenced in the preceding clause (b) and this clause (c) and
all modifications, increases, renewals or extensions thereof, in whole or in
part, and all other notes given in substitution therefor or in modification,
increase, renewal or extension thereof, in whole or in 


 


3

















 


part, are collectively
referred to herein as the “Notes”, and
the Administrative Agent as said payee, the Collateral Agent, the Lenders and
all subsequent holders of the Notes or any part thereof or any of the
Indebtedness, as hereinafter defined, are collectively referred to herein as
the “Creditors”); and (d) all
future loans and advances made by a Creditor to Grantor in connection with the
Credit Agreement and all other indebtedness, obligations and liabilities of
every kind and character of Grantor now or hereafter existing in favor of the
Creditors in connection with the Credit Agreement. The indebtedness, obligations,
and liabilities referred to in this Paragraph are hereinafter collectively
referred to as the “Indebtedness.”  This Deed of Trust, the Notes, the Credit
Agreement and any other instruments, documents and agreements now or hereafter
evidencing, securing, governing, guaranteeing and/or pertaining to the
Indebtedness or any part thereof are hereinafter collectively referred to
as the “Loan Documents.”


 


1.2                                 Defined Terms. Capitalized terms
used herein but not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement.


 


ARTICLE II


REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS OF GRANTOR


 


2.1                                 Representations and Warranties. Grantor
does hereby represent and warrant to the Collateral Agent as follows:


 


(a)                                  Financial Matters. Grantor is
solvent, is not bankrupt and has no outstanding liens, suits, garnishments,
bankruptcies or court actions which could render Grantor insolvent or bankrupt.
There has not been filed by or against Grantor a petition in bankruptcy or a
petition or answer seeking an assignment for the benefit of creditors, the
appointment of a receiver, trustee, custodian or liquidator with respect to
Grantor or any portion of Grantor’s property, reorganization, arrangement,
rearrangement, composition, extension, liquidation or dissolution or similar
relief under the United States Bankruptcy Code or any state law. All reports,
statements and other data furnished by Grantor to the Creditors in connection
with the loan evidenced by the Notes are true and correct in all material
respects and do not omit to state any fact or circumstance necessary to make
the statements contained therein not misleading. No material adverse change has
occurred since the dates of such reports, statements and other data in the
financial condition of Grantor or of any tenant under leases described in such
reports, statements and other data. For the purposes of this Paragraph, Grantor
shall also include any joint venturer or general partner of Grantor.


 


(b)                                 Title and Authority. Grantor is the
lawful owner of good and indefeasible fee simple and marketable title to those
tracts which constitute part of the Land and are described as the fee
tracts on Exhibit A to this Deed of Trust, of good and indefeasible
easement estates in and to those tracts which constitute part of the Land
and are described as the easement tracts on Exhibit A to this Deed of
Trust, and the Improvements and has good right and authority to grant, bargain,
sell, transfer, assign and


 


4

















 


mortgage the Land and
Improvements and to grant a security interest in the Personal Property. Grantor
does not do business with respect to the Mortgaged Property under any trade
name.


 


(c)                                  Permitted Encumbrances. The
Mortgaged Property is free and clear from all liens, security interests and
encumbrances except the lien and security interest evidenced hereby and, as
applicable, (i) the liens and/or encumbrances set forth in Exhibit “B” attached hereto
and made a part hereof, if any, or (ii) the matters, if any, set
forth as exceptions on Schedule B of the Policy (as defined hereinbelow),
if any, or (iii) such liens or other encumbrances, if any, as are
permitted by the Credit Agreement or (iv) if no Exhibit “B” is
attached hereto and no Policy is issued, then any liens and/or encumbrances
affecting the Mortgaged Property appearing in the Real Property Records of the
county(ies) in which the Land is situated, but only to the extent the same are
valid and subsisting (hereinafter called the “Permitted
Encumbrances”). There are no mechanic’s or materialmen’s liens,
lienable bills or other claims constituting a lien on the Mortgaged Property,
or any part thereof other than permitted under the Credit Agreement.


 


(d)                                 No Financing Statement. There is no
financing statement covering all or any part of the Mortgaged Property or
its proceeds on file in any public office which has not been terminated or
assigned to the Collateral Agent.


 


(e)                                  Location of Personal Property. All
tangible Personal Property is located on the Land.


 


(f)                                    No Homestead. No portion of the
Mortgaged Property is being used as Grantor’s business or residential
homestead.


 


(g)                                 No Default or Violation. The
execution, delivery and performance of this Deed of Trust, the Notes and all of
the other Loan Documents do not contravene, result in a breach of or constitute
a default under any mortgage, deed of trust, lease, promissory note, loan
agreement or other contract or agreement to which Grantor is a party or by
which Grantor or any of its properties may be bound or affected and do not
violate or contravene any law, order, decree, rule or regulation to which
Grantor is subject.


 


(h)                                 Compliance with Covenants and Laws. The
Mortgaged Property and the intended use thereof by Grantor comply (except where
failure to comply would not alone or in the aggregate result in a Material
Adverse Effect) with all applicable restrictive covenants, zoning ordinances
and building codes, flood disaster laws, applicable health and environmental
laws and regulations and all other applicable laws, statutes, ordinances,
rules, regulations, orders, determinations and court decisions, including,
without limitation, the Americans With Disabilities Act of 1990 and TEX. REV.
CIV. STAT. ANN. art. 9102, as amended, and the Fair Housing Amendments Act of
1988, 42 U.S.C. §§3601 et. seq. (all of the foregoing hereinafter
sometimes


 


5

















 


collectively referred to
as “Applicable Laws”), without reliance
upon grandfather provisions or adjacent or other properties. Grantor has
obtained all requisite zoning, utility, building, health and operating permits
from each governmental authority or municipality having jurisdiction over the
Mortgaged Property. All engineering specifications with respect to the
Mortgaged Property are within applicable environmental standards.


 


(i)                                     Environmental. Without limitation
of any of the foregoing, no asbestos, material containing asbestos which is or may become
friable or material containing asbestos deemed hazardous by Applicable Laws has
been installed in the Mortgaged Property and the Mortgaged Property and Grantor
are not in violation of or subject to any existing, pending or, to the best
knowledge of Grantor, threatened investigation or inquiry by any governmental
authority or to any remedial obligations under any Applicable Laws pertaining
to health or the environment (such Applicable Laws as they now exist or are
hereafter enacted and/or amended hereinafter sometimes collectively referred to
as “Applicable Environmental Laws”),
including without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 (collectively, together with any subsequent
amendments hereinafter referred to as “CERCLA”),
the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil
Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, and the
Hazardous and Solid Waste Amendments of 1984 (collectively, together with any
subsequent amendments hereinafter called “RCRA”), the
Texas Water Code and the Texas Solid Waste Disposal Act, except where any such
violation, investigation or inquiry (if adversely determined against the
Grantor) or remedial obligation would not alone or in the aggregate result in a
Material Adverse Effect, and this representation would continue to be true and
correct following disclosure to the applicable governmental authorities of all
relevant facts, conditions and circumstances, if any, pertaining to the
Mortgaged Property and Grantor. Grantor has obtained all permits, licenses or
similar authorizations required to construct, occupy, operate or use any
buildings, improvements, fixtures and equipment forming a part of the
Mortgaged Property by reason of any Applicable Environmental Laws. Grantor
undertook, at the time of acquisition of the Mortgaged Property, all
appropriate inquiry into the previous ownership and uses of the Mortgaged
Property consistent with good commercial or customary practice to determine
that the Mortgaged Property, at the time of Grantor’s purchase of same, was in
material compliance with all Applicable Environmental Laws and that no
hazardous substances or solid wastes had been disposed of or otherwise released
on or to the Mortgaged Property. Since the Grantor’s acquisition of the
Mortgaged Property no hazardous substances or solid wastes have been disposed
of or otherwise released on or to the Mortgaged Property. The use which Grantor
makes and intends to make of the Mortgaged Property will not result in the
disposal or other release of any hazardous substance or solid waste on or to
the Mortgaged Property. The terms “hazardous substance”
and “release” as used in this Deed of
Trust shall have the meanings specified in CERCLA, and the terms “solid waste” and “disposal” (or “disposed”)
shall have the meanings specified in RCRA; provided, in the event either CERCLA
or RCRA is amended so as to broaden the meaning of any term defined


 


6

















 


thereby, then such
broader meaning shall apply subsequent to the effective date of such amendment
and provided further, to the extent that the laws of the State of Texas
establish a meaning for the terms “hazardous substance,”
“release,” “solid
waste,” or “disposal”
(or “disposed”) which is broader than
that specified in either CERCLA or RCRA, such broader meaning shall apply.


 


(j)                                     No Suits. Except as otherwise
disclosed to the Collateral Agent in writing, there are no judicial or administrative
actions, suits or proceedings pending or, to the best of Grantor’s knowledge,
threatened against or affecting Grantor, any other person liable, directly or
indirectly, for the Indebtedness, or the Mortgaged Property, either (i) involving
the validity, enforceability or priority of any of the Loan Documents or (ii) if
adversely determined could (whether individually or when aggregated with other
such actions suits or proceedings) be reasonably expected to have a Material
Adverse Effect.


 


(k)                                  Condition of Property. The
Mortgaged Property is served by electric, gas, storm and sanitary sewers,
sanitary water supply, telephone and other utilities required for the use
thereof as represented by Grantor at or within the boundary lines of the
Mortgaged Property. All streets, alleys and easements necessary to serve the
Mortgaged Property for the use represented by Grantor have been completed and
are serviceable and access to the Mortgaged Property is via Jacintoport
Boulevard which has been dedicated and accepted by applicable governmental
entities. As of the date hereof, the Mortgaged Property is in good condition
and repair with no material deferred maintenance and is free from damage caused
by fire or other casualty. Grantor is aware of no latent or patent structural
or other significant defect or deficiency in the Mortgaged Property. Design and
as-built conditions of the Mortgaged Property are such that no drainage or
surface or other water will drain across or rest upon either the Mortgaged
Property or land of others. To the best of Grantor’s knowledge after due
inquiry and investigation, none of the improvements on the Mortgaged Property
create an encroachment over, across or upon any of the Mortgaged Property
boundary lines, rights of way or easements and no buildings or other
improvements on adjoining land create such an encroachment.


 


(l)                                     Organization. Grantor is duly
incorporated and validly existing under the laws of the state of its
incorporation and is duly qualified to do business in the State of Texas. Grantor
has all requisite power and has, except where failure to obtain would not alone
or in the aggregate result in a Material Adverse Effect, all governmental
certificates of authority, licenses, permits, qualifications and other
documentation to own, lease and operate its properties and to carry on its
business as now conducted and as contemplated to be conducted.


 


(m)                               Enforceability. The Notes, this
Deed of Trust and all other Loan Documents constitute the legal, valid and
binding obligations of Grantor enforceable in accordance with their respective
terms. The execution and delivery of, and performance under, the Notes, this
Deed of Trust and all other Loan Documents are within Grantor’s


 


7

















 


powers and have been duly
authorized by all requisite action and are not in contravention of the powers
of Grantor’s charter, bylaws or other corporate papers.


 


(n)                                 Not a Foreign Person. Grantor is
not a “foreign person” within the meaning of
the Internal Revenue Code of 1986, as amended (hereinafter called the “Code”), Sections 1445 and 7701
(i.e. Grantor is not a non-resident alien, foreign corporation, foreign
partnership, foreign trust or foreign estate, as those terms are defined in the
Code and regulations promulgated thereunder).


 


2.2                                 Covenants and Agreements. So long
as the Indebtedness or any part thereof remains unpaid, Grantor covenants
and agrees with the Collateral Agent as follows:


 


(a)                                  Payment and Performance. Grantor
will make prompt payment, as the same becomes due, of the Indebtedness and
shall punctually and properly perform all of Grantor’s covenants,
obligations and liabilities under the Loan Documents.


 


(b)                                 Existence. Grantor will
continuously maintain its existence and its right to do business in the State
of Texas together with its franchises and trade names.


 


(c)                                  Taxes on Notes and Other Taxes. Grantor
will promptly pay all income, franchise and other taxes owing by Grantor and
any stamp taxes which may be required to be paid with respect to this Deed
of Trust.


 


(d)                                 Operation of Mortgaged Property. Grantor
will operate the Mortgaged Property in a good and workmanlike manner and in
accordance with all Applicable Laws and will pay all fees or charges of any
kind in connection therewith. Grantor will keep the Mortgaged Property occupied
so as not to impair the insurance carried thereon. Grantor will not use or
occupy, or allow the use or occupancy of, the Mortgaged Property in any manner
which violates any Applicable Law or which constitutes a public or private
nuisance or which makes void, voidable or cancelable, or increases the premium
of, any insurance then in force with respect thereto. Grantor will not initiate
or permit any zoning reclassification of the Mortgaged Property or seek any
variance under existing zoning ordinances applicable to the Mortgaged Property
or use or permit the use of the Mortgaged Property in such a manner which would
result in such use becoming a nonconforming use under applicable zoning
ordinances or other Applicable Laws. Grantor will not impose any restrictive
covenants or encumbrances upon the Mortgaged Property, execute or file any
subdivision plat affecting the Mortgaged Property or consent to the annexation
of the Mortgaged Property to any municipality, without the prior written
consent of the Collateral Agent or unless and to the extent otherwise permitted
hereby. Grantor shall not cause or permit any drilling or exploration for, or
extraction, removal or production of, minerals from the surface or subsurface
of the Mortgaged Property. Grantor will not do or suffer to be done any act
whereby the value of any part of the Mortgaged Property may be
materially lessened. During normal business hours and so long as Grantor’s
business is not materially interrupted, Grantor will allow the Collateral Agent
or its authorized representative to enter the Mortgaged Property at any


 


8

















 


reasonable time to
inspect the Mortgaged Property and Grantor’s books and records pertaining thereto
and Grantor will assist the Collateral Agent or said representative in whatever
way necessary to make such inspection. If Grantor receives a notice or claim
from any federal, state or other governmental entity pertaining to the
Mortgaged Property, including, without limitation, a notice that the Mortgaged
Property is not in compliance with any Applicable Law material to Grantor’s
business, Grantor will promptly furnish a copy of such notice or claim to the
Collateral Agent.


 


(e)                                  Debts for Construction. Grantor
will cause all debts and liabilities of any character, including without
limitation, all debts and liabilities for labor, material and equipment and all
debts and charges for utilities servicing the Mortgaged Property, incurred in
the construction, maintenance, operation and development of the Mortgaged
Property, to be promptly paid; provided, that Grantor may in good faith
contest the validity of any such debts and liabilities, and pending such
contest Grantor shall not be deemed in default hereunder if (i) there
exists no material risk of sale, forfeiture or loss of, or loss or interference
with use or possession of, or diminution of value, utility or useful life of
the Mortgaged Property or any interest therein, or any risk of interference
with the repayment of the Notes, (ii) such contest would not result in, or
increase the risk of, the imposition of any criminal liability on any Creditor,
(iii) such contest would not materially and adversely affect the rights,
titles and interests of any Creditor in or to the Mortgaged Property or any
interest therein, and (iv) appropriate reserves with respect thereto are
maintained in accordance with GAAP; provided, however, that in any event each
such contest shall be concluded and the debt or liability shall be paid prior
to the date any writ or order is issued under which the Mortgaged Property or
any part thereof may be sold.


 


(f)                                    Ad Valorem Taxes. Grantor will
cause to be paid prior to delinquency all taxes and assessments heretofore or
hereafter levied or assessed against the Mortgaged Property, or any part thereof,
or against Trustee or the Collateral Agent for or on account of the Notes or
any other Indebtedness or the interest created by this Deed of Trust and will
furnish the Collateral Agent with receipts showing payment of such taxes and
assessments at least ten (10) days prior to the applicable default date
therefor; provided that Grantor may in good faith, by appropriate
proceedings, contest the validity, applicability, or amount of any asserted tax
or assessment, and pending such contest Grantor shall not be deemed in default
hereunder if (i) there exists no material risk of sale, forfeiture or loss
of, or loss or interference with use or possession of, or diminution of value,
utility or useful life of the Mortgaged Property or any interest therein, or
any risk of interference with the repayment of the Notes, (ii) such
contest would not result in, or increase the risk of, the imposition of any
criminal liability on any Creditor, (iii) such contest would not
materially and adversely affect the rights, titles and interests of any
Creditor in or to the Mortgaged Property or any interest therein, and (iv) appropriate
reserves with respect thereto are maintained in accordance with GAAP; provided,
however, that in any event each such contest shall be concluded and the tax,
assessment, penalties, interest and costs shall be paid prior to the date any
writ or order is issued under which the Mortgaged Property or any part thereof
may be sold.


 


9

















 


(g)                                 Repair and Maintenance. Grantor
will keep the Mortgaged Property in good order, repair, operating condition and
appearance, causing all necessary repairs, renewals, replacements, additions
and improvements to be promptly made, and will not allow any of the Mortgaged
Property to be misused, abused or wasted or to deteriorate. To the extent
necessary for the operation of the Mortgaged Property, Grantor will promptly
replace all worn-out or obsolete fixtures or personal property covered by this
Deed of Trust with fixtures or personal property comparable to the replaced
fixtures or personal property when new. Grantor will make all renovations,
modifications and alterations to the Mortgaged Property in compliance with all
Applicable Laws. Notwithstanding any of the foregoing, Grantor will not,
without the prior written consent of the Collateral Agent, (i) remove from
the Mortgaged Property any fixtures or personal property covered by this Deed
of Trust except those replaced by Grantor by an article of equal
suitability and value, owned by Grantor, free and clear of any lien or security
interest (except that created by this Deed of Trust); (ii) make any
structural alteration to the Mortgaged Property or any other alterations thereto
which impair the value thereof; or (iii) make any alteration to the
Mortgaged Property involving an estimated expenditure exceeding $250,000 except
pursuant to plans and specifications approved in writing by the Collateral
Agent. Upon request of the Collateral Agent, Grantor will within thirty (30)
days after such request deliver to the Collateral Agent an inventory describing
and showing the make, model, serial number and location of all fixtures and
personal property used in the management, maintenance and operation of the
Mortgaged Property with a certification by Grantor that, to the best of its
knowledge, said inventory is a true and complete schedule of all such
fixtures and personal property used in the management, maintenance and
operation of the Mortgaged Property, that such items specified in the inventory
constitute all of the fixtures and personal property required in the
management, maintenance and operation of the Mortgaged Property, and that all
such items are owned by Grantor free and clear of any lien or security interest
(except that created by this Deed of Trust) or otherwise permitted hereunder or
under the Credit Agreement.


 


(h)                                 Insurance and Casualty. Subject to
the coverage amounts set forth in the Credit Agreement, Grantor will keep the
Mortgaged Property insured against loss or damage by fire, explosion,
windstorm, hail, flood (if the Mortgaged Property shall at any time be located
in an identified “flood prone area”
in which flood insurance has been made available pursuant to the Flood Disaster
Protection Act of 1973), tornado and such other hazards as may be required
by the Collateral Agent by policies of fire, extended coverage and other
insurance in such company or companies, in such amounts, upon such terms and
provisions, and with such endorsements, all as may be acceptable to the
Collateral Agent. Grantor will also provide such other insurance as the
Collateral Agent may from time to time reasonably require, in such
companies, upon such terms and provisions, in such amounts, and with such
endorsements, all as are approved by the Collateral Agent. Grantor further
agrees that Grantor will deliver to the Collateral Agent the original policies
evidencing such insurance and any additional insurance which shall be taken out
upon any part of the Mortgaged Property and receipts evidencing the
payment of all premiums, and will deliver certificates evidencing renewals of
all such


 


10

















 


policies of insurance to
the Collateral Agent at least thirty (30) days before any such insurance shall
expire. Without limiting the discretion of the Collateral Agent with respect to
required endorsements to insurance policies, Grantor further agrees that all
such policies shall provide that proceeds thereunder will be payable to the
Collateral Agent as its interest may appear pursuant and subject to a
mortgage clause (without contribution) of standard form attached to or
otherwise made a part of the applicable policy. In the event of
foreclosure of this Deed of Trust, or other transfer of title to the Mortgaged
Property in extinguishment in whole or in part of the Indebtedness, all
right, title and interest of Grantor in and to such policies then in force
concerning the Mortgaged Property and all proceeds payable thereunder shall
thereupon vest in the purchaser at such foreclosure or the Collateral Agent or
other transferee in the event of such other transfer of title. In the event any
of the Mortgaged Property covered by such insurance is destroyed or damaged by fire,
explosion, windstorm, hail or by any other casualty against which insurance
shall have been required hereunder, (i) the Collateral Agent may, but
shall not be obligated to, make proof of loss if not made promptly by Grantor; (ii) each
insurance company concerned is hereby authorized and directed to make payment
for such loss directly to the Collateral Agent or to Grantor, as provided for
and in accordance with Section 5.3 of the Credit Agreement; and (iii) the
Collateral Agent shall have the right to apply the insurance proceeds first, to
reimburse the Collateral Agent or Trustee for all costs and expenses,
including, without limitation, reasonable attorneys’ fees, incurred in
connection with the collection of such proceeds and, second, the remainder of
said proceeds shall be applied or disbursed as provided in Section 5.3 of
the Credit Agreement. In any event the unpaid portion of the Indebtedness shall
remain in full force and effect and Grantor shall not be excused in the payment
thereof. If any act or occurrence of any kind or nature (including any casualty
on which insurance was not obtained or obtainable) shall result in damage to or
loss or destruction of the Mortgaged Property, Grantor shall give immediate
written notice thereof to the Collateral Agent and, unless otherwise so
instructed by the Collateral Agent or otherwise permitted by the Credit
Agreement, shall promptly, at Grantor’s sole cost and expense and regardless of
whether the insurance proceeds, if any, shall be sufficient for the purpose,
restore, repair, replace and rebuild the Mortgaged Property as nearly as
possible to its value, condition and character immediately prior to such
damage, loss or destruction in accordance with plans and specifications
submitted to and approved by the Collateral Agent.


 


(i)                                     Condemnation. Immediately upon
obtaining knowledge of the institution of any proceedings for the condemnation
of the Mortgaged Property or any portion thereof, or any other proceedings
arising out of injury or damage to the Mortgaged Property, or any portion
thereof, Grantor will notify the Collateral Agent of the pendency of such
proceedings. The Collateral Agent may participate in any such proceedings,
and Grantor shall from time to time deliver to the Collateral Agent all
instruments requested by it to permit such participation. Grantor shall, at its
expense, diligently prosecute any such proceedings, and shall consult with the
Collateral Agent, its attorneys and experts, and cooperate with them in the
carrying on or defense of any such proceedings. Except as otherwise provided in
Section 5.3 of the Credit Agreement, all proceeds of 


 


11

















 


condemnation awards or
proceeds of sale in lieu of condemnation with respect to the Mortgaged Property
and all judgments, decrees and awards for injury or damage to the Mortgaged
Property shall be paid to the Collateral Agent and shall be applied, first, to
reimburse the Collateral Agent or Trustee for all costs and expenses,
including, without limitation, reasonable attorneys’ fees, incurred in
connection with collection of such proceeds and, second, the remainder of said
proceeds shall be applied or disbursed as provided in Section 5.3 of the
Credit Agreement. In any event the unpaid portion of the Indebtedness shall
remain in full force and effect and Grantor shall not be excused in the payment
thereof. In the event any of the foregoing proceeds are applied to the repair,
restoration or replacement of the Mortgaged Property, Grantor shall promptly
commence and complete such repair, restoration or replacement of the Mortgaged
Property as nearly as possible to its value, condition and character
immediately prior to such damage or taking in accordance with plans and
specifications submitted to and approved by the Collateral Agent. Grantor
hereby assigns and transfers all such proceeds, judgments, decrees and awards
to the Collateral Agent and agrees to execute such further assignments of all
such proceeds, judgments, decrees and awards as the Collateral Agent may request.
Grantor hereby grants an irrevocable power of attorney to the Collateral Agent,
such appointment being coupled with an interest, for the Collateral Agent,
after the occurrence and during the continuance of a Default (as hereinafter
defined), in the name of Grantor, to execute and deliver valid acquittances
for, and to appeal from, any such judgment, decree or award. The Collateral
Agent shall not be, in any event or circumstances, liable or responsible for
the failure to collect, or the failure to exercise diligence in the collection
of, any such proceeds, judgments, decrees or awards.


 


(j)                                     Protection and Defense of Lien. If
the validity or priority of this Deed of Trust or of any rights, titles, liens
or security interests created or evidenced hereby with respect to the Mortgaged
Property or any part thereof shall be endangered or questioned or shall be
attacked directly or indirectly or if any legal proceedings are instituted
against Grantor with respect thereto, Grantor will give prompt written notice
thereof to the Collateral Agent and at Grantor’s own cost and expense will
diligently endeavor to cure any defect that may be developed or claimed,
and will take all necessary and proper steps for the defense of such legal
proceedings, including, without limitation, the employment of counsel, the
prosecution or defense of litigation and the release or discharge of all
adverse claims, and Trustee and the Collateral Agent, or either of them
(whether or not named as parties to legal proceedings with respect thereto) are
hereby authorized and empowered to take such additional steps as in their
judgment and discretion may be necessary or proper for the defense of any
such legal proceedings or the protection of the validity or priority of this
Deed of Trust and the rights, titles, liens and security interests created or
evidenced hereby, including, without limitation, the employment of counsel, the
prosecution or defense of litigation, the compromise or discharge of any
adverse claims made with respect to the Mortgaged Property, the purchase of any
tax title and the removal of prior liens or security interests (including,
without limitation, the payment of debts as they mature or the payment in full
of matured or unmatured debts, which are secured by these prior liens or
security interests), and all expenses so incurred of every


 


12

















 


kind and character shall
be subject to and covered by the provisions of Paragraph 2.3 hereof.


 


(k)                                  No Other Liens. Grantor will not,
without the prior written consent of the Collateral Agent (who, with respect to
the addition of servitudes on the Mortgaged Property, shall grant its consent
only with the consent of the Majority Lenders), create, place or permit to be
created or placed, or through any act or failure to act, acquiesce in the
placing of, or allow to remain, any deed of trust, mortgage, voluntary or
involuntary lien, whether statutory, constitutional or contractual (except for
the lien for ad valorem taxes on the Mortgaged Property which are not
delinquent), security interest, encumbrance or charge, or conditional sale or
other title retention document, against or covering the Mortgaged Property, or
any part thereof, other than the Permitted Encumbrances, regardless of whether
the same are expressly or otherwise subordinate to the lien or security
interest created in this Deed of Trust, and should any of the foregoing become
attached hereafter in any manner to any part of the Mortgaged Property
without the prior written consent of the Collateral Agent, Grantor will cause
the same to be promptly discharged and released. Grantor will own all parts of
the Mortgaged Property and will not acquire any fixtures, equipment or other
property forming a part of the Mortgaged Property pursuant to a lease,
license or similar agreement, without the prior written consent of the
Collateral Agent.


 


(l)                                     Books and Records. Grantor will
keep accurate books and records in accordance with sound accounting principles
in which full, true and correct entries shall be promptly made as to all
operations on the Mortgaged Property, and will permit all such books and
records (including, without limitation, all contracts, statements, invoices,
bills and claims for labor, materials and services supplied for the
construction and operation of the improvements forming a part of the
Mortgaged Property) to be inspected and copied by the Collateral Agent and its
duly authorized representatives at all times during reasonable business hours
such inspections not to unreasonably interfere with the conduct of Grantor’s
business.


 


(m)                               Rent Roll. Within ten (10) business
days after the Collateral Agent’s request, Grantor shall provide to the
Collateral Agent a leasing report and rent roll of the Mortgaged Property containing
the name and address of all tenants then occupying portions of the Mortgaged
Property under valid and subsisting lease agreements and, with respect to each
lease, the rentals payable, square footage of the leased premises, amount of
security deposit, lease commencement date, lease expiration date, date through
which rent is paid and the nature and extent of any defaults by any tenant, all
certified as to accuracy by a representative of Grantor acceptable to the
Collateral Agent. Grantor shall use its best efforts to obtain and examine
financial and credit information on all proposed lessees and provide copies of
same to the Collateral Agent upon its request. If, and as often as, reasonably
requested by the Collateral Agent, Grantor will make further reports of
operations in such form as the Collateral Agent prescribes, setting out
full data requested by the Collateral Agent.


 


13

















 


(n)                                 Escrow. If requested by the
Collateral Agent at any time following and during the continuance of a Default
(as defined in Article IV hereof) in order to secure the performance and
discharge of Grantor’s obligations under Subparagraphs (f) and (h) of
this Paragraph 2.2, but not in lieu of such obligations, Grantor will
deposit with the Collateral Agent a sum equal to ad valorem taxes, assessments
and charges (which charges for the purpose of this Subparagraph shall include
without limitation ground rents and water and sewer rents and any other
recurring charge which could create or result in a lien against the Mortgaged
Property) against the Mortgaged Property for the current year and the premiums
for such policies of insurance for the current year, all as estimated by the
Collateral Agent and prorated to the  end
of the calendar month following the month during which this Deed of Trust is
executed and delivered, and thereafter will deposit with the Collateral Agent,
on each date when an installment of principal and/or interest is due on the
Notes, sufficient funds (as estimated from time to time by the Collateral
Agent) to permit the Collateral Agent to pay, at least thirty (30) days prior
to the due date thereof, the next maturing ad valorem taxes, assessments and
charges and premiums for such policies of insurance. The Collateral Agent shall
have the right to rely upon tax information furnished by applicable taxing
authorities in the payment of such taxes or assessments and shall have no
obligation to make any protest of any such taxes or assessments. Any excess
over the amounts required for such purposes shall be held by the Collateral
Agent for future use, applied to any Indebtedness or refunded to Grantor, at
the Collateral Agent’s option, and any deficiency in such funds so deposited
shall be made up by Grantor upon demand of the Collateral Agent. All such funds
so deposited shall bear no interest whatsoever, shall be kept separate and not
be mingled with the general funds of the Collateral Agent and shall be applied
by the Collateral Agent toward the payment of such taxes, assessments, charges
and premiums when statements therefor are presented to the Collateral Agent by
Grantor (such statements to be presented by Grantor to the Collateral Agent
within a reasonable time before the applicable amount is due); provided,
however, that, if a Default (as hereinafter defined) shall have occurred and be
continuing hereunder, such funds may at the Collateral Agent’s option be
applied to the payment of the Indebtedness in the order determined by the
Collateral Agent in its sole discretion, and that the Collateral Agent may at
any time, in its sole discretion, apply all or any part of such funds
toward the payment of any such taxes, assessments, charges or premiums which
are past due, together with any penalties or late charges with respect thereto.
The conveyance or transfer of Grantor’s interest in the Mortgaged Property for
any reason (including, without limitation, the foreclosure of a subordinate
lien or security interest or a transfer by operation of law) shall constitute
an assignment or transfer of Grantor’s interest in and rights to such funds
held by the Collateral Agent under this Subparagraph but subject to the rights
of the Collateral Agent hereunder.


 


(o)                                 Further Assurances. Grantor will,
on request of the Collateral Agent, promptly (i) correct any defect, error
or omission which may be discovered in the contents of this Deed of Trust
or in any other instrument now or hereafter executed in connection herewith or
in the execution or acknowledgment thereof; (ii) execute, acknowledge,
deliver and record or file such further instruments (including, without
limitation, further deeds of trust, security agreements, financing statements,
continuation


 


14

















 


statements and
assignments of rents and leases) and do such further acts as may be
necessary, desirable or proper to carry out more effectively the purposes of
this Deed of Trust and such other instruments and to subject to the liens and
security interests hereof and thereof any property intended by the terms hereof
and thereof to be covered hereby and thereby including, without limitation, any
renewals, additions, substitutions, replacements or appurtenances to the
Mortgaged Property; (iii) execute, acknowledge, deliver, procure and
record or file any document or instrument (including, without limitation, any
financing statement) deemed advisable by the Collateral Agent to protect the
lien or security interest hereunder against the rights or interests of third
persons; and (iv) provide such certificates, documents, reports,
information, affidavits and other instruments and do such further acts as may be
necessary, desirable or proper in the reasonable determination of the
Collateral Agent to enable the Collateral Agent to comply with the requirements
or requests of any agency having jurisdiction over the Collateral Agent or any
examiners of such agencies with respect to the Indebtedness, Grantor or the
Mortgaged Property and Grantor will pay all costs connected with any of the
foregoing.


 


(p)                                 Title Insurance. Grantor shall, at
its sole cost and expense obtain and maintain title insurance in the form of
a commitment, binder or policy (collectively, “Policy”)
as the Collateral Agent may require, issued by a title company acceptable
to the Collateral Agent. If for any reason during the period the Indebtedness
is outstanding such title insurance is no longer valid or the issuing title
company is insolvent or unable to adequately insure the validity and priority
of the lien evidenced by this Deed of Trust (as determined by the Collateral
Agent in its sole discretion), Grantor agrees to obtain, at its sole cost and
expense, a replacement Policy issued by a title company acceptable to the
Collateral Agent in favor of the Collateral Agent as mortgagee, in such amount
and form as required by the Collateral Agent, insuring the validity and
priority of the lien evidenced by this Deed of Trust.


 


(q)                                 Fees and Expenses; Indemnification. Grantor
will pay all appraisal fees, filing and recording fees, inspection fees, survey
fees, taxes (excluding taxes imposed on the net income of the Collateral Agent
by a taxing authority in the jurisdiction of organization of the Collateral
Agent or in a jurisdiction in which the Collateral Agent has an office or fixed
place of business), brokerage fees and commissions, abstract fees, title policy
fees, uniform commercial code search fees, escrow fees, reasonable
attorneys’ fees, and all other costs and expenses of every character incurred
by Grantor or the Collateral Agent in connection with the Indebtedness, either
at the closing thereof or at any time during the term thereof, or otherwise
attributable or chargeable to Grantor as owner of the Mortgaged Property, and
will reimburse the Collateral Agent for all such costs and expenses incurred by
the Collateral Agent. Grantor shall pay all expenses and reimburse the
Collateral Agent for any expenditures, including, without limitation,
reasonable attorneys’ fees and legal expenses, incurred or expended in
connection with (i) the breach by Grantor of any covenant herein or in any
other Loan Document; (ii) the Collateral Agent’s exercise of any of its
rights and remedies hereunder or under the Notes or any other Loan Document or
the Collateral Agent’s protection of the Mortgaged


 


15

















 


Property and its lien and
security interest therein; or (iii) any amendments to this Deed of Trust,
the Notes or any other Loan Document or any matter requested by Grantor or any
approval required hereunder. Grantor will indemnify and hold harmless Trustee
and any Creditor (for purposes of this Subparagraph, the  terms “Trustee” and “Creditor” shall include the directors, officers, partners,
employees, representatives and agents of Trustee and such Creditor, respectively,
and any persons or entities owned or controlled by, owning or controlling, or
under common control or affiliated with Trustee and such Creditor,
respectively) from and against, and reimburse them for, all claims, demands,
liabilities, losses, damages, causes of action, judgments, penalties, costs and
expenses (including, without limitation, reasonable attorneys’ fees) which may be
imposed upon, asserted against or incurred or paid by them by reason of, on
account of or in connection with any bodily injury or death or property damage
occurring in or upon or in the vicinity of the Mortgaged Property through any
cause whatsoever or asserted against them on account of any act performed or
omitted to be performed hereunder or on account of any transaction arising out
of or in any way connected with the Mortgaged Property or with this Deed of
Trust, the Notes or any other Loan Documents. WITHOUT
LIMITATION OF THE FOREGOING, IT IS THE INTENTION OF GRANTOR AND GRANTOR AGREES
THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY WITH
RESPECT TO CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, CAUSES OF ACTION,
JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS’ FEES) WHICH IN WHOLE OR IN PART ARE CAUSED BY OR
ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY OTHER) INDEMNIFIED PARTY OR ANY
STRICT LIABILITY. HOWEVER, SUCH INDEMNITIES
SHALL NOT APPLY TO ANY INDEMNIFIED PARTY TO THE EXTENT THE SUBJECT OF THE
INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNIFIED PARTY. The foregoing indemnities
shall not terminate upon release, foreclosure or other termination of this Deed
of Trust but will survive foreclosure of this Deed of Trust or conveyance in
lieu of foreclosure and the repayment of the Indebtedness and the discharge and
release of this Deed of Trust and the other Loan Documents. Any amount to be
paid hereunder by Grantor to a Creditor and/or Trustee shall be subject to and
governed by the provisions of Paragraph 2.3 hereof.


 


(r)                                    Liability Insurance. Grantor shall
maintain Commercial General Liability insurance against claims for bodily
injury or death and property damage occurring in or upon or resulting from the
Mortgaged Property, in standard form and with such insurance company or
companies as may be acceptable to the Collateral Agent, such insurance to
afford immediate protection, to the limit of not less than $100,000,000 in
respect of any one accident or occurrence with not more than $125,000 deductible.
Such Commercial General Liability insurance shall include Blanket Contractual
Liability coverage which insures contractual liability under the
indemnification of the Collateral Agent and the Trustee by Grantor set forth in
this Deed of Trust (but such coverage or the amount thereof shall in no way
limit such indemnification). Grantor shall maintain with


 


16

















 


respect to each policy or
agreement evidencing such Commercial General Liability insurance such
endorsements as may be required by the Collateral Agent and shall at all
times deliver and maintain with the Collateral Agent a certificate with respect
to such insurance in form satisfactory to the Collateral Agent. Not less
than thirty (30) days prior to the expiration date of each policy of insurance
required of Grantor pursuant to this Subparagraph, Grantor shall deliver to the
Collateral Agent a renewal policy or policies marked “premium paid”
or accompanied by other evidence of payment satisfactory to the Collateral
Agent. In the event of a foreclosure of this Deed of Trust, the purchaser of
the Mortgaged Property shall succeed to all the rights of Grantor, including,
without limitation, any right to unearned premiums, in and to all policies of
insurance assigned pursuant to the provisions of this Subparagraph, and Grantor
hereby authorizes the Collateral Agent to notify any or all insurance carriers
of this assignment.


 


(s)                                  Warranty. Grantor will warrant and
forever defend the title to the Mortgaged Property against the claims of all
persons making any claim to the same or any part thereof, subject to the
Permitted Encumbrances.


 


(t)                                    Tax on Lien. In the event of the
enactment after the date hereof of any law of the State of Texas or of any
other governmental entity deducting from the value of property for the purpose
of taxation any lien or security interest thereon, or imposing upon the
Collateral Agent the payment of the whole or any part of the taxes or
assessments or charges or liens herein required to be paid by Grantor, or
changing in any way the laws relating to the taxation of deeds of trust or
mortgages or security agreements or debts secured by deeds of trust or
mortgages or security agreements or the interest of the mortgagee or secured
party in the property covered thereby, or the manner of collection of such
taxes, so as to affect this Deed of Trust or the Indebtedness or the Collateral
Agent, then, and in any such event, Grantor upon demand by the Collateral
Agent, shall pay such taxes, assessments, charges or liens, or reimburse the
Collateral Agent therefor; provided, however, that if in the opinion of counsel
for the Collateral Agent (i) it might be unlawful to require Grantor to
make such payment; or (ii) the making of such payment might result in the
contracting for, charging or receiving of interest beyond the maximum amount
permitted by law, then and in such event, the Collateral Agent may elect,
by notice in writing given to Grantor, to declare all of the Indebtedness to be
and become due and payable sixty (60) days from the giving of such notice.


 


 (u)                              Location
and Use of Personal Property. All tangible Personal Property
will be used in the business of Grantor and shall remain in Grantor’s
possession or control at all times at Grantor’s risk of loss and shall be
located on the Land.


 


(v)                                 Estoppel Certificate. Grantor shall
at any time and from time to time furnish promptly upon request by the
Collateral Agent a written statement in such form as may be required
by the Collateral Agent stating that the Notes, this Deed of Trust and the
other Loan Documents are valid and binding obligations of Grantor, enforceable
against Grantor in accordance with their terms; the unpaid principal balance of
the Notes; the


 


17

















 


date to which interest on
the Notes is paid; that the Notes, this Deed of Trust and the other Loan
Documents have not been released, subordinated or modified; and that there are
no offsets or defenses against the enforcement of the Notes, this Deed of Trust
or any other Loan Documents, or if any of the foregoing statements are untrue,
specifying the reasons therefor.


 


(w)                               Proceeds of Personal Property. Grantor
shall account fully and faithfully for and, if the Collateral Agent so elects,
shall promptly pay or turn over to the Collateral Agent all proceeds in
whatever form received from any disposition of any of the Personal
Property, except as otherwise specifically authorized herein. Grantor shall at
all times keep the Personal Property and its proceeds separate and distinct
from other property of Grantor and shall keep accurate and complete records of
the Personal Property and its proceeds.


 


(x)                                   Credit Agreement. Grantor will
punctually perform and discharge each and every obligation and undertaking
of Grantor under the Credit Agreement and will not permit a default to occur
thereunder.


 


(y)                                 Permitted Encumbrances. Grantor
will comply with and will perform all of the covenants, agreements and
obligations imposed upon it or the Mortgaged Property in the Permitted
Encumbrances in accordance with their respective terms and provisions. Grantor
will not modify or permit any modification of any Permitted Encumbrance without
the prior written consent of the Collateral Agent.


 


(z)                                   Environmental. Grantor will not
cause or permit the Mortgaged Property or Grantor to be in violation of, or do
anything or permit anything to be done which will subject the Mortgaged
Property to any remedial obligations under, any Applicable Environmental Laws,
including, without limitation, CERCLA, RCRA, the Texas Water Code and the Texas
Solid Waste Disposal Act, assuming disclosure to the applicable governmental
authorities of all relevant facts, conditions and circumstances, if any,
pertaining to Grantor and/or the Mortgaged Property, and Grantor will promptly
notify the Collateral Agent in writing of any existing, pending or, to the best
knowledge of Grantor, threatened investigation or inquiry (which investigation
or inquiry if adversely determined against the Grantor would not alone or in
the aggregate result in a Material Adverse Effect) by any governmental
authority in connection with any Applicable Environmental Laws. Grantor shall
obtain any permits, licenses or similar authorizations to construct, occupy,
operate or use any buildings, improvements, fixtures and equipment forming a part of
the Mortgaged Property by reason of any Applicable Environmental Laws. Grantor
shall take all steps necessary to determine that no hazardous substances or
solid waste are being disposed of or otherwise released on or to the Mortgaged
Property. Grantor will not cause or permit the disposal or other release of any
hazardous substance or solid waste on or to the Mortgaged Property and
covenants and agrees to keep or cause the Mortgaged Property to be kept free of
any hazardous substance or solid waste and to remove the same (or if removal is
prohibited by law, to take whatever action is required by law) promptly upon
discovery at its sole expense. Upon the Collateral Agent’s


 


18

















 


reasonable request, at
any time and from time to time during the existence of this Deed of Trust,
Grantor will provide at Grantor’s sole expense an inspection or audit of the
Mortgaged Property from an engineering or consulting firm approved by the
Collateral Agent, indicating the presence or absence of hazardous substances
and solid wastes on the Mortgaged Property. If Grantor fails to provide same
after thirty (30) days’ notice, the Collateral Agent may order same, and
Grantor grants to the Collateral Agent and its agents, employees, contractors
and consultants access to the Mortgaged Property and a license (which is
coupled with an interest and irrevocable while this Deed of Trust is in effect)
to perform inspections and tests. The cost of such inspections and tests
shall be a demand obligation owing by Grantor to the Collateral Agent pursuant
to this Deed of Trust and shall be subject to and covered by the provisions of Paragraph
2.3 hereof.


 


(aa)                            Asbestos. Grantor covenants and
agrees that it will not install in the Mortgaged Property, nor permit to be
installed in the Mortgaged Property, asbestos, material containing asbestos
which is or may become friable or material containing asbestos deemed
hazardous by any Applicable Environmental Law, and that if any such asbestos or
material containing asbestos exists in or on the Mortgaged Property, whether
installed by Grantor or others, Grantor will remove the same (or if removal is
prohibited by law, will take whatever action is required by law, including,
without limitation, implementing any required operation and maintenance
program) promptly upon discovery at its sole expense. Upon the Collateral Agent’s
reasonable request, at any time and from time to time during the existence of
this Deed of Trust, Grantor shall provide at Grantor’s sole expense an
inspection or audit of the Mortgaged Property from an engineering or consulting
firm approved by the Collateral Agent, indicating the presence or absence of
asbestos or material containing asbestos on the Mortgaged Property. If Grantor
fails to provide same after thirty (30) days’ notice, the Collateral Agent may order
same, and Grantor grants to the Collateral Agent and its agents, employees,
contractors and consultants access to the Mortgaged Property and a license
(which is coupled with an interest and irrevocable while this Deed of Trust is
in effect) to perform inspections and tests. The cost of such inspections
and tests shall be subject to and covered by the provisions of Paragraph 2.3
hereof.


 


2.3                                 Right of the Collateral Agent to Perform.
Grantor agrees that if Grantor fails to perform any act or to take any
action which Grantor is required to perform or take hereunder or under any
of the other Loan Documents, or to pay any money which Grantor is required to
pay hereunder or under any of the other Loan Documents, or takes any action
prohibited hereby or thereby, the Collateral Agent, in Grantor’s name or in its
own name, may but shall not be obligated to perform or cause to be
performed such act or take such action, including, without limitation, entering
the Mortgaged Property for such purpose and to take all such action thereon as
it may deem necessary or appropriate, or pay such money or remedy any
action so taken, and any expenses so incurred by the Collateral Agent, and any
money paid by the Collateral Agent in connection therewith, shall be a demand
obligation owing by Grantor to the Collateral Agent and the Collateral Agent,
upon making such payment, shall be subrogated to all of the rights of the party
receiving such payment. Any amounts due and owing by Grantor to any Creditor
pursuant to this Deed of Trust shall bear interest from the date such amount
becomes due until paid at the


 


19

















 


rate of interest payable
on matured but unpaid principal of or interest on the Notes and shall be a part of
the Indebtedness and shall be secured by this Deed of Trust and by all of the
other Loan Documents.


 


2.4                                 Indemnification Regarding Environmental Matters.
Grantor agrees to indemnify and hold the Collateral Agent and Trustee (for
purposes of this Paragraph, the terms “the Collateral Agent”
and “Trustee” shall include the directors,
officers, partners, employees, representatives and agents of the Collateral
Agent and Trustee, respectively, and any persons or entities owned or
controlled by, owning or controlling, or under common control or otherwise
affiliated with the Collateral Agent and Trustee, respectively) harmless from
and against, and to reimburse the Collateral Agent and Trustee with respect to,
any and all claims, demands, losses, damages (including consequential damages),
liabilities, causes of action, judgments, penalties, costs and expenses
(including reasonable attorneys’ fees and court costs) of any and every kind or
character, known or unknown, fixed or contingent, imposed on, asserted against
or incurred by the Collateral Agent and/or the Trustee at any time and from
time to time by reason of, in connection with or arising out of (a) the
breach of any representation or warranty of Grantor as set forth herein
regarding asbestos, material containing asbestos or Applicable Environmental
Laws, (b) the failure of Grantor to perform any obligation herein
required to be performed by Grantor regarding asbestos, material containing
asbestos or Applicable Environmental Laws, (c) any violation on or before
the Release Date (as hereinafter defined) of any Applicable Environmental Law
in effect on or before the Release Date, (d) the removal of hazardous
substances or solid wastes from the Mortgaged Property (or if removal is
prohibited by law, the taking of whatever action is required by law), (e) the
removal of asbestos or material containing asbestos from the Mortgaged Property
(or if removal is prohibited by Applicable Environmental Laws, the taking of
whatever action is required by Applicable Environmental Laws, including,
without limitation, the implementation of any required operation and
maintenance program), (f) any act, omission, event or circumstance
existing or occurring on or prior to the Release Date (including, without
limitation, the presence on the Mortgaged Property or release from the
Mortgaged Property of any hazardous substance or solid waste disposed of or
otherwise released on or prior to the Release Date), resulting from or in
connection with the ownership, construction, occupancy, operation, use and/or
maintenance of the Mortgaged Property, regardless of whether the act, omission,
event or circumstance constituted a violation of any Applicable Environmental
Law at the time of its existence or occurrence, and (g) any and all claims
or proceedings (whether brought by private party or governmental agency) for
bodily injury, property damage, abatement or remediation, environmental damage
or impairment or any other injury or damage resulting from or relating to any
hazardous substance or solid waste located upon or migrating into, from or
through the Mortgaged Property (whether or not any or all of the foregoing was
caused by Grantor or its tenant or subtenant, or a prior owner of the Mortgaged
Property or its tenant or subtenant, or any third party and whether or not the
alleged liability is attributable to the handling, storage, generation,
transportation or disposal of such substance or waste or the mere presence of
such substance or waste on the Mortgaged Property). WITHOUT
LIMITATION, THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY
WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL
DAMAGES), LIABILITIES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND
EXPENSES (INCLUDING


 


20

















 


ATTORNEYS’ FEES AND COURT COSTS)
WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF
SUCH (AND/OR ANY OTHER) INDEMNIFIED PARTY OR ANY STRICT LIABILITY. HOWEVER,
SUCH INDEMNITIES SHALL NOT APPLY TO ANY INDEMNIFIED PARTY TO THE EXTENT THE
SUBJECT OF THE INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY. The
term “Release Date” as used herein shall
mean the earlier of the following two dates: (i) the date on which the
Indebtedness has been paid and performed in full and this Deed of Trust has
been released, or (ii) the date on which the lien of this Deed of Trust is
foreclosed or a conveyance by deed in lieu of such foreclosure is fully
effective; provided, if such payment, performance, release, foreclosure or
conveyance is challenged, in bankruptcy proceedings or otherwise, the Release
Date shall be deemed not to have occurred until such challenge is rejected,
dismissed or withdrawn with prejudice. The foregoing indemnities shall not
terminate upon the Release Date or upon the release, foreclosure or other
termination of this Deed of Trust but will survive the Release Date,
foreclosure of this Deed of Trust or conveyance in lieu of foreclosure, and the
repayment of the Indebtedness and the discharge and release of this Deed of
Trust and the other Loan Documents. Any amount to be paid hereunder by Grantor
to the Collateral Agent and/or Trustee shall be a demand obligation owing by
Grantor to the Collateral Agent and/or Trustee and shall be subject to and
covered by the provisions of Paragraph 2.3 hereof. Nothing in this
Paragraph, elsewhere in this Deed of Trust or in any other Loan Document shall
limit or impair any rights or remedies of the Collateral Agent and/or Trustee
against Grantor or any third party under Applicable Environmental Laws,
including without limitation, any rights of contribution or indemnification
available hereunder or thereunder.


 


ARTICLE III


ASSIGNMENT
OF RENTS, LEASES, PROFITS, INCOME,


CONTRACTS
AND BONDS


 


3.1                                 Assignment of Rents. Grantor does
hereby absolutely and unconditionally assign, transfer and set over to the
Collateral Agent all rents, income, receipts, revenues, issues, profits and
proceeds to be derived from the Mortgaged Property, including, without
limitation, the immediate and continuing 
right to collect and receive all of the rents, income, receipts,
revenues, issues, profits and other sums of money that may now or at any
time hereafter become due and payable to Grantor under the terms of any leases
now or hereafter covering the Mortgaged Property, or any part thereof,
including, but not limited to, minimum rents, additional rents, percentage
rents, deficiency rents and liquidated damages following default, all proceeds
payable under any policy of insurance covering the loss of rents resulting from
untenantability caused by destruction or damage to the Mortgaged Property, and
all of Grantor’s rights to recover monetary amounts from any tenant in
bankruptcy, including, without limitation, rights of recovery for use and
occupancy and damage claims arising out of lease defaults, including rejections,
under any applicable bankruptcy law (as hereinafter defined), together with any
sums of money that may now or at any time hereafter become due and payable
to Grantor by virtue of any and all royalties, overriding royalties, bonuses,
delay rentals and any other amount of any kind or character arising under any
and all present and future oil, gas and mining leases covering


 


21

















 


the Mortgaged Property or
any part thereof (collectively, the “Rents”);
and all proceeds and other amounts paid or owing to Grantor under or pursuant
to any and all contracts and bonds relating to the construction, erection or
renovation of the Mortgaged Property; subject however to a license hereby
granted by the Collateral Agent to Grantor to collect and receive all of the
foregoing (such license evidenced by the Collateral Agent’s acceptance of the
Mortgage), subject to the terms and conditions hereof. Notwithstanding anything
contained herein or in any of the other Loan Documents to the contrary, the
assignment in this Paragraph is an absolute, unconditional and presently
effective assignment and not merely a security interest; provided, however,
upon the occurrence of a Default (as hereinafter defined) hereunder or upon the
occurrence of any event or circumstance which with the lapse of time or the
giving of notice or both would constitute a Default hereunder, such license
shall automatically and immediately terminate and Grantor shall hold all Rents
paid to Grantor thereafter in trust for the use and benefit of the Collateral
Agent and the Collateral Agent shall have the right, power and authority,
whether or not it takes possession of the Mortgaged Property, to seek
enforcement of any such lease, contract or bond and to demand, collect,
receive, sue for and recover in its own name any and all of the above described
amounts assigned hereby and to apply the sum(s) collected, first to the payment
of expenses incident to the collection of the same, and the balance to the
payment of the Indebtedness; provided further, however, that the Collateral
Agent shall not be deemed to have taken possession of the Mortgaged Property
except on the exercise of its option to do so, evidenced by its demand and
overt act for such purpose. It shall not be necessary for the Collateral Agent
to institute any type of legal proceedings or take any other action whatsoever
to enforce the assignment provisions in this Paragraph 3.1.


 


3.2                                 Assignment of Leases. Grantor
hereby assigns to the Collateral Agent all existing and future leases,
including, without limitation, all subleases thereof, and any and all
extensions, renewals, modifications and replacements thereof, upon any part of
the Mortgaged Property (collectively, the “Leases”)
and Grantor hereby further assigns to the Collateral Agent all guaranties of
tenants’ performance under the Leases. Prior to a Default, Grantor shall have
the right, without joinder of the Collateral Agent, to enforce the Leases,
unless the Collateral Agent directs otherwise.


 


3.3                                 Warranties Concerning Leases and Rents.
Grantor represents and warrants that:


 


(a)                                  Grantor
has (or will have, with respect to any future leases) good title to the Leases
and Rents and authority to assign them, and no other person or entity has any
right, title or interest therein;


 


(b)                                 all
existing Leases are valid, unmodified and in full force and effect, except as
indicated herein, and, to Grantor’s knowledge, no default exists thereunder;


 


(c)                                  unless
otherwise provided herein, no Rents have been or will be assigned, mortgaged or
pledged;


 


22






 













 


(d)                                 no
Rents have been or will be anticipated, waived, released, discounted, set off
or compromised; and


 


(e)                                  except
as indicated in the Leases, Grantor has not received any funds or deposits from
any tenant for which credit has not already been made on account of accrued
Rents or not more than one (1) month in advance.


 


3.4                                 Grantor’s Covenants of Performance. Grantor
covenants to:


 


(a)                                  perform all
of its obligations under the Leases and give prompt notice to the Collateral
Agent of any failure to do so;


 


(b)                                 give
immediate notice to the Collateral Agent of any notice Grantor receives from
any tenant or subtenant under any Leases, specifying any claimed default by any
party under such Leases, excluding, however, notices of default under
residential leases;


 


(c)                                  enforce
the tenant’s obligations under the Leases;


 


(d)                                 defend,
at Grantor’s expense, any proceeding pertaining to the Leases, including, if
the Collateral Agent so requests, any such proceeding to which the Collateral
Agent is a party;


 


(e)                                  neither
create nor permit any encumbrance upon its interest as lessor of the Leases,
except this Deed of Trust and any other encumbrances permitted by this Deed of
Trust; and


 


(f)                                    until
otherwise directed by the Collateral Agent upon the occurrence of an Event of Default,
cause all sums payable to the Grantor and assigned hereby, whether as rent,
purchase proceeds or avails, income, and all other sums or otherwise, to be
paid directly to the such account(s) as the Collateral Agent may specify
(each an “Earnings Account”) and cause all Leases to specify that payments due
the Grantor be made directly to the Earnings Account.


 


3.5                                 Prior Approval for Actions Affecting Leases.
Grantor shall not, without the prior written consent of the Collateral
Agent:


 


(a)                                  receive
or collect Rents more than one month in advance;


 


(b)                                 encumber
or assign future Rents;


 


(c)                                  waive
or release any obligation of any tenant under the Leases;


 


(d)                                 cancel,
terminate or modify any of the Leases; cause or permit any cancellation,
termination or surrender of any of the Leases; or commence any


 


23

















 


proceedings for
dispossession of any tenant under any of the Leases, except upon default by the
tenant thereunder;


 


(e)                                  renew
or extend any of the Leases, except pursuant to terms in existing Leases;


 


(f)                                    permit
any assignment of the Leases; or


 


(g)                                 enter
into any Leases after the date hereof.


 


3.6                                 Settlement for Termination. Grantor
agrees that no settlement for damages for termination of any of the Leases under
the Federal Bankruptcy Code, or under any other federal, state or local
statute, shall be made without the prior written consent of the Collateral
Agent, and any check in payment of such damages will be made payable to both
Grantor and the Collateral Agent. Grantor hereby assigns any such payment to
the Collateral Agent to be applied to the Indebtedness as the Collateral Agent may elect
and agrees to endorse any check for such payment to the order of the Collateral
Agent.


 


3.7                                 The Collateral Agent in Possession. The
Collateral Agent’s acceptance of this assignment shall not, prior to entry upon
and taking possession of the Mortgaged Property by the Collateral Agent, be
deemed to constitute the Collateral Agent a “mortgagee in
possession,” nor obligate the Collateral Agent to appear in or
defend any proceedings relating to any of the Leases or to the Mortgaged
Property, take any action hereunder, expend any money, incur any expenses, or
perform any obligation or liability under the Leases, or assume any obligation
for any deposits delivered to Grantor by any tenant and not delivered to the
Collateral Agent. The Collateral Agent shall not be liable for any injury or
damage to any person or property in or about the Mortgaged Property.


 


3.8                                 Appointment of Attorney. Grantor
hereby irrevocably appoints the Collateral Agent its attorney-in-fact, coupled
with an interest, empowering the Collateral Agent to subordinate any Leases to
this Deed of Trust.


 


3.9                                 Indemnification. Grantor hereby
indemnifies and holds the Collateral Agent (which shall include the directors,
officers, partners, employees, representatives and agents of the Collateral
Agent and any persons or entities owned or controlled by, owning or
controlling, or under common control or affiliated with the Collateral Agent)
harmless from all liability, damage or expense imposed on or incurred by the
Collateral Agent from any claims under the Leases, including, without
limitation, any claims by Grantor with respect to payments of Rents made
directly to the Collateral Agent after Default and claims by any tenant for
security deposits or for rental payments more than one (1) month in
advance and not delivered to the Collateral Agent. All amounts indemnified
against hereunder, including, without limitation, reasonable attorneys’ fees,
if paid by the Collateral Agent shall bear interest at the Default Rate (as
defined in the Credit Agreement) and shall be payable by Grantor in accordance
with Paragraph 2.3 hereof. The foregoing indemnities shall not terminate
upon the foreclosure, release or other termination of this Deed of Trust but
will survive foreclosure of this Deed of Trust or conveyance in lieu of


 


24

















 


foreclosure and the
repayment of the Indebtedness and the discharge and release of this Deed of
Trust and the other Loan Documents.


 


3.10                           Records. Upon request by the
Collateral Agent, Grantor shall deliver to the Collateral Agent executed
originals of all Leases and copies of all records relating thereto.


 


3.11                           Merger. There shall be no merger of
the leasehold estates, created by the Leases, with the fee estate of the Land
without the prior written consent of the Collateral Agent.


 


3.12                           Right to Rely. Grantor hereby
irrevocably authorizes and directs the tenants under the Leases to pay Rents to
the Collateral Agent upon written demand by the Collateral Agent without
further consent of Grantor, and the tenants may rely upon any written
statement delivered by the Collateral Agent to the tenants. Any such payment to
the Collateral Agent shall constitute payment to Grantor under the Leases. The
provisions of this Paragraph are intended solely for the benefit of the tenants
and shall never inure to the benefit of Grantor or any person claiming through
or under Grantor, other than a tenant who has not received such notice. The
assignment of Rents set forth in Paragraph 3.1 is not contingent upon
any notice or demand by the Collateral Agent to the tenants.


 


ARTICLE IV


EVENTS OF
DEFAULT


 


Defaults.
The term “Default” as used in this Deed
of Trust shall mean the occurrence of any of the following events:


 


4.1                                 Abandonment. Grantor abandons all
or a portion of the Mortgaged Property; or


 


4.2                                 Destruction of Mortgaged Property. The
Mortgaged Property is demolished, destroyed or damaged and Grantor fails to perform in
accordance with Section 5.3 of the Credit Agreement; or


 


4.3                                 Condemnation. The Mortgaged
Property or a portion thereof is taken in condemnation, or sold in lieu of
condemnation and Grantor fails to perform in accordance with Section 5.3
of the Credit Agreement; or


 


4.4                                 Default under Credit Agreement. An
Event of Default (as such term is defined in the Credit Agreement) has occurred
and is continuing.


 


ARTICLE V


REMEDIES
AND RELATED RIGHTS


 


If a Default shall occur,
the Collateral Agent may exercise any one or more of the following
remedies and shall, in addition to any other rights afforded to the Collateral
Agent under the Credit Agreement or otherwise, have the following related
rights, without notice (unless notice is required by Applicable Laws):


 


25

















 


5.1                                 Possession. Upon the occurrence of
a Default, or any event or circumstance which, with the lapse of time or the
giving of notice, or both, would constitute a Default hereunder, the Collateral
Agent is authorized prior or subsequent to the institution of any foreclosure
proceedings to enter upon the Mortgaged Property, or any part thereof, and
to take possession of the Mortgaged Property and of all books, records and accounts
relating thereto and to exercise without interference from Grantor any and all
rights which Grantor has with respect to the management, possession, operation,
protection or preservation of the Mortgaged Property, including the right to
rent the same for the account of Grantor and to deduct from such rents all
costs, expenses and liabilities of every character incurred by the Collateral
Agent in collecting such rents and in managing, operating, maintaining,
protecting or preserving the Mortgaged Property and to apply the remainder of
such rents to the Indebtedness in such manner as the Collateral Agent may elect
in its sole discretion. All such costs, expenses and liabilities incurred by
the Collateral Agent in collecting such rents and in managing, operating,
maintaining or preserving the Mortgaged Property, if not paid out of rents as
hereinabove provided, shall constitute a demand obligation owing by Grantor and
shall be subject to and covered by Paragraph 2.3 hereof. If necessary to
obtain the possession provided for above, the Collateral Agent may invoke
any and all legal remedies to dispossess Grantor, including, without
limitation, one or more actions for forcible entry and detainer, trespass to
try title and restitution. In connection with any action taken by the
Collateral Agent pursuant to this Paragraph, the Collateral Agent shall not be
liable for any loss sustained by Grantor resulting from any failure to rent the
Mortgaged Property, or any part thereof, or from any other act or omission
of the Collateral Agent in managing the Mortgaged Property (REGARDLESS
OF WHETHER SUCH LOSS IS CAUSED BY THE NEGLIGENCE OF THE COLLATERAL AGENT)
unless such loss is caused by the willful misconduct or gross negligence of the
Collateral Agent, nor shall the Collateral Agent be obligated to perform or
discharge any obligation, duty or liability under any Lease covering the
Mortgaged Property or any part thereof or under or by reason of this
instrument or the exercise of rights or remedies hereunder. Grantor shall and
does hereby agree to indemnify the Collateral Agent for, and to hold the
Collateral Agent (which shall include the directors, officers, partners,
employees, representatives and agents of the Collateral Agent and any persons
or entities owned or controlled by, owning or controlling or under common
control or affiliated with the Collateral Agent) harmless from, any and all
liability, loss or damage which may or might be incurred by the Collateral
Agent under any Lease or under or by reason of this Deed of Trust or the
exercise of rights or remedies hereunder and from any and all claims and
demands whatsoever which may be asserted against the Collateral Agent by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements contained in any Lease, REGARDLESS OF WHETHER SUCH LIABILITY, LOSS, DAMAGE, CLAIMS OR DEMANDS
ARE THE RESULT OF THE NEGLIGENCE OF THE COLLATERAL AGENT, UNLESS SUCH LOSS IS
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT.
Should the Collateral Agent incur any such liability, the amount thereof,
including costs, expenses and reasonable attorneys’ fees, shall be subject to
and covered by Paragraph 2.3 hereof. Nothing in this Paragraph shall
impose any duty, obligation or responsibility upon the Collateral Agent for the
control, care, management or repair of the Mortgaged Property, nor for the
carrying out of any of the terms and conditions of any such


 


26

















 


Lease; nor shall it
operate to make the Collateral Agent responsible or liable for any waste
committed on the Mortgaged Property by the tenants or by any other parties or
for any dangerous or defective condition of the Mortgaged Property, OR FOR ANY NEGLIGENCE IN THE MANAGEMENT, UPKEEP, REPAIR OR CONTROL OF
THE MORTGAGED PROPERTY RESULTING IN LOSS OR INJURY OR DEATH TO ANY TENANT,
LICENSEE, EMPLOYEE OR STRANGER, UNLESS SUCH LOSS OR INJURY RESULTS FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COLLATERAL AGENT. Grantor
hereby assents to, ratifies and confirms any and all actions of the Collateral
Agent with respect to the Mortgaged Property taken under this Paragraph and
agrees that the foregoing indemnity shall not terminate upon release, foreclosure
or other termination of this Deed of Trust.


 


5.2                                 Foreclosure. Upon the occurrence of
a Default, Trustee, his successor or substitute, is authorized and empowered
and it shall be his special duty at the request of the Collateral Agent to sell
the Mortgaged Property or any part thereof situated in the State of Texas
at the courthouse of any county in the State of Texas in which any part of
the Mortgaged Property is situated, at public vendue to the highest bidder for
cash. The sale shall take place at such area of the courthouse as shall be
properly designated from time to time by the commissioners court (or, if not so
designated by the commissioners court, at the courthouse door) of the specified
county, between the hours of 10 o’clock a.m. and 4 o’clock p.m. (the
commencement of such sale to occur within three hours following the time
designated in the hereinafter described notice of sale as the earliest time at
which such sale shall occur, if required by Applicable Laws) on the first
Tuesday in any month after having given notice of such sale at least twenty-one
(21) days before the day of sale of the time, place and terms of said sale
(including the earliest time at which such sale shall occur) in accordance with
the statutes of the State of Texas then in force governing sales of real estate
under powers conferred by deeds of trust. Notice of a sale of all or part of
the Mortgaged Property by Trustee shall be given by posting written notice
thereof at the courthouse door (or other area in the courthouse as may be
designated for such public notices) of the county in which the sale is to be
made, and by filing a copy of the notice in the office of the county clerk of
the county in which the sale is to be made at least twenty-one (21) days
preceding the date of the sale, and if the Mortgaged Property to be sold is in
more than one county, a notice shall be posted at the courthouse door and filed
with the county clerk of each county in which the Mortgaged Property is
situated. In addition, at least twenty-one (21) days preceding the date of
sale, written notice of the proposed sale shall be served by certified mail on
Grantor and each debtor obligated to pay the Indebtedness or any portion
thereof according to the records of the Collateral Agent, all in accordance
with Chapter 51 of the Texas Property Code. Service of such notice shall be
completed upon deposit of the notice, enclosed in a postpaid certified mail
wrapper, properly addressed to Grantor and each such debtor at the Grantor’s
and each such debtor’s last known address in accordance with Chapter 51 of the
Texas Property Code, in a post office or official depository under the care and
custody of the United States Postal Service. The affidavit of any person having
knowledge of the facts to the effect that such service was completed shall be
prima facie evidence of the fact of service. Any sale made by Trustee hereunder
may be as an entirety or in such parcels as the Collateral Agent may request,
and any sale may be adjourned by announcement at the time and place
appointed for such sale without further notice except as may be required
by law. The sale


 


27

















 


by Trustee of less than
the whole of the Mortgaged Property shall not exhaust the power of sale herein
granted, and Trustee is specifically empowered to make successive sale or sales
under such power until the whole of the Mortgaged Property shall be sold; and,
if the proceeds of such sale of less than the whole of the Mortgaged Property
shall be less than the aggregate of the Indebtedness and the expense of
executing this trust as provided herein, this Deed of Trust and the lien hereof
shall remain in full force and effect as to the unsold portion of the Mortgaged
Property just as though no sale had been made; provided, however, that Grantor
shall never have any right to require the sale of less than the whole of the
Mortgaged Property but the Collateral Agent shall have the right, at its sole
election, to request Trustee to sell less than the whole of the Mortgaged
Property. After each sale, Trustee shall make to the purchaser or purchasers at
such sale good and sufficient conveyances in the name of Grantor, conveying the
property so sold to the purchaser or purchasers in fee simple with general
warranty of title, and shall receive the proceeds of said sale or sales and
apply the same as herein provided. Payment of the purchase price to Trustee
shall satisfy the obligation of purchaser at such sale therefor, and such
purchaser shall not be responsible for the application thereof. The power of
sale granted herein shall not be exhausted by any sale held hereunder by
Trustee or his substitute or successor, and such power of sale may be
exercised from time to time and as many times as the Collateral Agent may deem
necessary until all of the Mortgaged Property has been duly sold and all
Indebtedness has been fully paid. In the event any sale hereunder is not
completed or is defective in the opinion of the Collateral Agent, such sale
shall not exhaust the power of sale hereunder and the Collateral Agent shall
have the right to cause a subsequent sale or sales to be made hereunder. Any
and all statements of fact or other recitals made in any deed or deeds given by
Trustee or any successor or substitute appointed hereunder as to nonpayment of
the Indebtedness, or as to the occurrence of any Default, or as to the
Collateral Agent having declared all of such Indebtedness to be due and
payable, or as to the request to sell, or as to notice of time, place and terms
of sale and of the properties to be sold having been duly given, or as to the
refusal, failure or inability to act of Trustee or any substitute or successor,
or as to the appointment of any substitute or successor Trustee, or as to any
other act or thing having been duly done by the Collateral Agent or by Trustee
or any substitute or successor, shall be taken as prima facie evidence of the
truth of the facts so stated and recited. Trustee, his successor or substitute,
may appoint or delegate any one or more persons as agent to perform any
act or acts necessary or incident to any sale held by Trustee, including,
without limitation, the posting of notices and the conducting of sales, but in
the name and on behalf of Trustee, his successor or substitute.


 


5.3                                 Judicial Foreclosure. This Deed of
Trust shall be effective as a mortgage as well as a deed of trust and upon the
occurrence of a Default may be foreclosed as to any of the Mortgaged
Property in any manner permitted by the laws of the State of Texas or of any
other state in which any part of the Mortgaged Property is situated, and
any foreclosure suit may be brought by Trustee or by the Collateral Agent.
In the event a foreclosure hereunder shall be commenced by Trustee, or his
substitute or successor, the Collateral Agent may at any time before the
sale of the Mortgaged Property direct Trustee to abandon the sale, and may then
institute suit for the collection of the Indebtedness, and/or for the
foreclosure of this Deed of Trust. It is agreed that if the Collateral Agent
should institute a suit for the collection of the Indebtedness and/or for the
foreclosure of this Deed of Trust, the Collateral Agent may at any time
before the entry of a final judgment in said suit dismiss the same, and require
Trustee, his


 


28

















 


substitute or successor
to sell the Mortgaged Property in accordance with the provisions of this Deed
of Trust.


 


5.4                                 Receiver. In addition to all other
remedies herein provided for, Grantor agrees that upon the occurrence of a
Default, or any event or circumstance which, with the lapse of time or the
giving of notice, or both, would constitute a Default, the Collateral Agent
shall as a matter of right be entitled to the appointment of a receiver or
receivers for all or any part of the Mortgaged Property, whether such
receivership be incident to a proposed sale of the Mortgaged Property or
otherwise, and without regard to the value of the Mortgaged Property or the
solvency of any person or persons liable for the payment of the Indebtedness,
and Grantor does hereby consent to the appointment of such receiver or
receivers, waives any and all defenses to such appointment and agrees not to
oppose any application therefor by the Collateral Agent, but nothing herein is
to be construed to deprive the Collateral Agent of any other right, remedy or
privilege it may now have under the law to have a receiver appointed;
provided, however, that the appointment of such receiver or other appointee by
virtue of any court order, statute or regulation shall not impair or in any
manner prejudice the rights of the Collateral Agent to receive payment of the
Rents pursuant to Paragraph 3.1 hereof. Any money advanced by the
Collateral Agent in connection with any such receivership shall be subject to
and covered by Paragraph 2.3 hereof.


 


5.5                                 Proceeds of Sale. The proceeds of
any sale held by Trustee or any receiver or public officer in foreclosure of
the liens evidenced hereby shall be applied:


 


FIRST, to the
payment of all necessary costs and expenses incident to such foreclosure sale,
including but not limited to, all court costs and charges of every character in
the event foreclosed by suit, attorneys’ fees and a reasonable fee to Trustee
acting under the provisions of Paragraph 5.2 if foreclosed by power of
sale as provided in said Paragraph, such fee to the Trustee not exceeding
US$10,000.00;


 


SECOND, in accordance
with Section 8.3 of the Credit Agreement.


 


5.6                                 The Collateral Agent as Purchaser. The
Collateral Agent shall have the right to become the purchaser at any sale held
by any Trustee or substitute or successor or by any receiver or public officer,
and shall have the right to credit upon the amount of the bid made therefor, to
the extent necessary to satisfy such bid, the Indebtedness then outstanding and
owing.


 


5.7                                 Additional Remedies under the UCC.
This Deed of Trust is both a real property Deed of Trust and a “security
agreement” within the meaning of Article 9 of the Texas Business and
Commerce Code, as amended (the “UCC”). Grantor, by executing and delivering
this Deed of Trust, grants to Collateral Agent a security interest in the
Personal Property. Upon the occurrence of a Default, the Collateral Agent may exercise
its rights of enforcement with respect to the Personal Property under the UCC,
and in conjunction with, in addition to or in substitution for those rights and
remedies:


 


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(a)                                  the
Collateral Agent may enter upon the Mortgaged Property to take possession
of, assemble and collect the Personal Property or to render it unusable; and


 


(b)                                 the
Collateral Agent may require Grantor to assemble the Personal Property and
make it available at a place the Collateral Agent designates which is mutually
convenient to allow the Collateral Agent to take possession or dispose of the
Personal Property; and


 


(c)                                  written
notice mailed to Grantor as provided herein ten (10) days prior to the
date of public sale of the Personal Property or prior to the date after which
any private sale of the Personal Property will be made shall constitute
reasonable notice; and


 


(d)                                 any
sale made pursuant to the provisions of this Paragraph shall be deemed to have
been a public sale conducted in a commercially reasonable manner if held
contemporaneously with the sale of the Mortgaged Property under power of sale
as provided herein upon giving the same notice with respect to the sale of the
Personal Property hereunder as is required for such sale of the Mortgaged
Property under power of sale; and


 


(e)                                  in
the event of a foreclosure sale, whether made by Trustee under the terms
hereof, or under judgment of a court, the Personal Property and the Mortgaged
Property may, at the option of the Collateral Agent, be sold as a whole; and


 


(f)                                    it
shall not be necessary that the Collateral Agent take possession of the
Personal Property or any part thereof prior to the time that any sale
pursuant to the provisions of this Paragraph is conducted and it shall not be
necessary that the Personal Property or any part thereof be present at the
location of such sale; and


 


(g)                                 prior
to application of proceeds of disposition of the Personal Property to the
Indebtedness, such proceeds shall be applied to the reasonable expenses of
retaking, holding, preparing for sale or lease, selling, leasing and the like
and the reasonable attorneys’ fees and legal expenses incurred by the
Collateral Agent; and


 


(h)                                 any
and all statements of fact or other recitals made in any bill of sale or
assignment or other instrument evidencing any foreclosure sale hereunder as to
nonpayment of the Indebtedness or as to the occurrence of any Default, or as to
the Collateral Agent having declared all of such Indebtedness to be due and
payable, or as to notice of time, place and terms of sale and of the properties
to be sold having been duly given, or as to any other act or thing having been
duly done by the Collateral Agent, shall be taken as prima facie evidence of
the truth of the facts so stated and recited; and


 


(i)                                     the
Collateral Agent may appoint or delegate any one or more persons as agent
to perform any act or acts necessary or incident to any sale held by the
Collateral Agent, including the sending of notices and the conduct of the sale,
but in the name and on behalf of the Collateral Agent.


 


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5.8                                 Partial Foreclosure. In the event
of a Default in the payment of any part of the Indebtedness, the
Collateral Agent shall have the right to proceed with foreclosure of the liens
and security interests evidenced hereby without declaring the entire
Indebtedness due, and in such event any such foreclosure sale may be made
subject to the unmatured part of the Indebtedness; and any such sale shall
not in any manner affect the unmatured part of the Indebtedness, but as to
such unmatured part this Deed of Trust shall remain in full force and
effect just as though no sale had been made. The proceeds of any such sale
shall be applied as provided in Paragraph 5.5 except that the amount
paid under subparagraph SECOND thereof shall be only the matured portion of the
Indebtedness and any proceeds of such sale in excess of those provided for in
subparagraphs FIRST and SECOND (modified as provided above) shall be applied to
installments of principal of and interest on the Notes in the inverse order of
maturity. Several sales may be made hereunder without exhausting the right
of sale for any unmatured part of the Indebtedness.


 


5.9                                 Remedies Cumulative. All remedies
herein expressly provided for are cumulative of any and all other remedies
existing at law or in equity and are cumulative of any and all other remedies
provided for in any of the other Loan Documents, or any part thereof, or
otherwise benefiting the Collateral Agent, and Trustee and the Collateral Agent
shall, in addition to the remedies herein provided, be entitled to avail
themselves of all such other remedies as may now or hereafter exist at law
or in equity for the collection of the Indebtedness and the enforcement of the
covenants herein and the foreclosure of the liens and security interests
evidenced hereby, and resort to any remedy provided for hereunder or under any
such Loan Documents or provided for by law shall not prevent the concurrent or
subsequent employment of any other appropriate remedy or remedies.


 


5.10                           Resort to Any Security. The
Collateral Agent may resort to any security given by this Deed of Trust or
to any other security now existing or hereafter given to secure the payment of
the Indebtedness, in whole or in part, and in such portions and in such order as
may seem best to the Collateral Agent in its sole and absolute discretion,
and any such action shall not in any way be considered as a waiver of any of
the rights, benefits, liens or security interests evidenced by this Deed of
Trust.


 


5.11                           Waiver. To the full extent Grantor may do
so, Grantor agrees that Grantor will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force
pertaining to the rights and remedies of sureties or providing for any appraisement,
valuation, stay, extension or redemption, and Grantor, for Grantor and Grantor’s
heirs, devisees, representatives, successors and assigns, and for any and all
persons ever claiming any interest in the Mortgaged Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of intention to mature or
declare due the whole of the Indebtedness, notice of election to mature or
declare due the whole of the Indebtedness and all rights to a marshaling of the
assets of Grantor, including, without limitation, the Mortgaged Property, or to
a sale in inverse order of alienation in the event of foreclosure of the liens
and security interests hereby created. Grantor shall not have or assert any
right under any statute or rule of law pertaining to the marshaling of
assets,


 


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sale in inverse order of
alienation, the exemption of homestead, the administration of estates of
decedents or other matters whatever to defeat, reduce or affect the right of
the Collateral Agent under the terms of this Deed of Trust to a sale of the
Mortgaged Property for the collection of the Indebtedness without any prior or
different resort of collection, or the right of the Collateral Agent under the
terms of this Deed of Trust to the payment of such Indebtedness out of the
proceeds of sale of the Mortgaged Property in preference to every other
claimant whatever. If any law referred to in this Paragraph and now in force,
of which Grantor or Grantor’s heirs, devisees, representatives, successors and
assigns and such other persons claiming any interest in the Mortgaged Property
might take advantage despite this Paragraph, shall hereafter be repealed or
cease to be enforced, such law shall not thereafter be deemed to preclude the
application of this Paragraph.


 


5.12                           Delivery of Possession After Foreclosure.
Except as provided in any applicable subordination, nondisturbance and
attornment agreement between the Collateral Agent and a tenant of the Mortgaged
Property, in the event there is a foreclosure sale hereunder and at the time of
such sale Grantor or Grantor’s heirs, devisees, representatives, successors or
assigns or any other persons claiming any interest in the Mortgaged Property
by, through or under Grantor are occupying or using the Mortgaged Property, or
any part thereof, each and all shall immediately become the tenant of the
purchaser at such sale, which tenancy shall be a tenancy from day-to-day,
terminable at the will of either landlord or tenant, at a reasonable rental per
day based upon the value of the property occupied, such rental to be due daily
to the purchaser. In the event the tenant fails to surrender possession of said
property upon demand, the purchaser shall be entitled to institute and maintain
an action for forcible entry and detainer of said property in the appropriate
court having jurisdiction.


 


5.13                           Tender After Acceleration. If,
following the occurrence of a Default and the acceleration of the Indebtedness
but prior to the foreclosure of this Deed of Trust, Grantor shall tender to the
Collateral Agent payment of an amount sufficient to pay the entire
Indebtedness, such tender shall be deemed to be a voluntary prepayment under
the Notes and, consequently, Grantor shall also pay to the Collateral Agent any
charge or premium required under the Notes or any other Loan Documents to be
paid in order to prepay principal and, if such principal payment is made during
any period when prepayment is prohibited by this Deed of Trust, the Notes or
any of the other Loan Documents the applicable charge or premium shall be the
maximum prepayment penalty provided for in the Notes; provided, however, that
in the event any amount payable under this Paragraph is deemed interest, in no
event shall such amount when added to the interest otherwise payable on the
Notes and the other Indebtedness exceed the maximum interest permitted under
applicable law.


 


ARTICLE VI


MISCELLANEOUS


 


6.1                                 Defeasance. If all of the Indebtedness
is paid as the same becomes due and payable and if all of the covenants,
warranties, undertakings and agreements made in this Deed of Trust are kept
and  performed, then and in that event
only, all rights under this Deed of Trust shall terminate and the Mortgaged
Property shall become wholly clear of the liens, security


 


32

















 


interests, conveyances
and assignments evidenced hereby, which shall be released by the Collateral
Agent in due form at Grantor’s cost.


 


6.2                                 Successor Trustee. Trustee may resign
by an instrument in writing addressed to the Collateral Agent, or Trustee may be
removed at any time with or without cause by an instrument in writing executed
by the Collateral Agent. In case of the death, resignation, removal or
disqualification of Trustee or if for any reason the Collateral Agent shall
deem it desirable to appoint a substitute or successor Trustee to act instead
of the herein named Trustee or any substitute or successor Trustee, then the Collateral
Agent shall have the right and is hereby authorized and empowered to appoint a
successor Trustee, or a substitute Trustee, without formality other than
appointment and designation in writing executed by the Collateral Agent and the
authority hereby conferred shall extend to the appointment of other successor
and substitute Trustees successively until the Indebtedness has been paid in
full or until the Mortgaged Property is sold hereunder. In the event the
Indebtedness is owned by more than one person or entity, the holders of not
less than a majority in the amount of such Indebtedness shall have the right
and authority to make the appointment of a successor or substitute Trustee
provided for in the preceding sentence. Such appointment and designation by the
Collateral Agent or by the holder or holders of not less than a majority of the
Indebtedness shall be full evidence of the right and authority to make the same
and of all facts therein recited. If the Collateral Agent is a national banking
association or corporation and such appointment is executed in its behalf by an
officer of such national banking association or corporation, such appointment
shall be conclusively presumed to be executed with authority and shall be valid
and sufficient without proof of any action by the board of directors or any
superior officer of the association or corporation. Upon the making of any such
appointment and designation, all of the estate and title of Trustee in the
Mortgaged Property shall vest in the named successor or substitute Trustee and
he shall thereupon succeed to and shall hold, possess and execute all the
rights, powers, privileges, immunities and duties herein conferred upon
Trustee; but nevertheless, upon the written request of the Collateral Agent or
of the successor or substitute Trustee, Trustee ceasing to act shall execute
and deliver an instrument transferring to such successor or substitute Trustee
all of the estate and title in the Mortgaged Property of Trustee so ceasing to
act, together with all the rights, powers, privileges, immunities and duties
herein conferred upon Trustee, and shall duly assign, transfer and deliver any
of the properties and moneys held by said Trustee hereunder to said successor
or substitute Trustee. All references herein to Trustee shall be deemed to
refer to Trustee (including any successor or substitute appointed and
designated as herein provided) from time to time acting hereunder. Grantor
hereby ratifies and confirms any and all acts which the herein named Trustee or
his successor or successors, substitute or substitutes, in this trust, shall do
lawfully by virtue hereof.


 


6.3                                 Liability and Indemnification of Trustee.
Trustee shall not be liable for any error of judgment or act done by
Trustee in good faith, or be otherwise responsible or accountable under any
circumstances whatsoever (INCLUDING, WITHOUT
LIMITATION, TRUSTEE’S NEGLIGENCE), except for Trustee’s gross
negligence or willful misconduct. Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by him hereunder, believed by him in good faith to be
genuine. All moneys received by Trustee shall, until used or applied as herein


 


33

















 


provided, be held in
trust for the purposes for which they were received, but need not be segregated
in any manner from any other moneys (except to the extent required by law), and
Trustee shall be under no liability for interest on any moneys received by him
hereunder. Grantor will reimburse Trustee for, and indemnify and save him
harmless against, any and all liability and expenses (including, without
limitation, reasonable attorneys’ fees) which may be incurred by him in
the performance of his duties hereunder (Trustee shall include the directors,
officers, partners, employees, representatives and agents of Trustee and any
persons or entities owned or controlled by, owning or controlling or under
common control or affiliated with Trustee), INCLUDING ANY
LIABILITY AND EXPENSES RESULTING FROM THE TRUSTEE’S OWN NEGLIGENCE (BUT NOT THE
TRUSTEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT). The foregoing
indemnity shall not terminate upon release, foreclosure or other termination of
this Deed of Trust.


 


6.4                                 Waiver by the Collateral Agent. The
Collateral Agent may at any time and from time to time in writing (a) waive
compliance by Grantor with any covenant herein made by Grantor to the extent
and in the manner specified in such writing; (b) consent to Grantor doing
any act which hereunder Grantor is prohibited from doing, or consent to Grantor
failing to do any act which hereunder Grantor is required to do, to the extent
and in the manner specified in such writing; (c) release any part of
the Mortgaged Property, or any interest therein, from the lien and security
interest of this Deed of Trust without the joinder of Trustee; or (d) release
any party liable, either directly or indirectly, for the Indebtedness or for
any covenant herein or in any of the other Loan Documents now or hereafter
securing the payment of the Indebtedness, without impairing or releasing the
liability of any other party. No such act shall in any way impair the rights of
the Collateral Agent hereunder except to the extent specifically agreed to by
the Collateral Agent in such writing.


 


6.5                                 Actions by the Collateral Agent. The
lien, security interest and other security rights of the Collateral Agent
hereunder shall not be impaired by any indulgence, moratorium or release
granted by the Collateral Agent, including but not limited to (a) any
renewal, extension, increase or modification which the Collateral Agent may grant
with respect to any of the Indebtedness; (b) any surrender, compromise,
release, renewal, extension, exchange or substitution which the Collateral
Agent may grant in respect of the Mortgaged Property, or any part thereof
or any interest therein; or (c) any release or indulgence granted to any
endorser, guarantor or surety of any of the Indebtedness. The taking of
additional security by the Collateral Agent shall not release or impair the
lien, security interest or other security rights of the Collateral Agent
hereunder or affect the liability of Grantor or of any endorser or guarantor or
other surety or improve the rights of any permitted junior lienholder in the
Mortgaged Property.


 


6.6                                 Rights of the Collateral Agent. The
Collateral Agent may waive any Default without waiving any other prior or
subsequent Default. The Collateral Agent may remedy any default without
waiving the Default remedied. Neither the failure by the Collateral Agent to
exercise, nor the delay by the Collateral Agent in exercising, any right, power
or remedy upon any Default shall be construed as a waiver of such Default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by the Collateral


 


34

















 


Agent of any right, power
or remedy hereunder shall exhaust the same or shall preclude any other or
further exercise thereof, and every such right, power or remedy hereunder may be
exercised at any time and from time to time. No modification or waiver of any
provision hereof nor consent to any departure by Grantor therefrom shall in any
event be effective unless the same shall be in writing and signed by the
Collateral Agent and then such waiver or consent shall be effective only in the
specific instances, for the purpose for which given and to the extent therein
specified. No notice to nor demand on Grantor in any case shall of itself
entitle Grantor to any other or further notice or demand in similar or other
circumstances. Acceptance by the Collateral Agent of any payment in an amount
less than the amount then due on any of the Indebtedness shall be deemed an acceptance
on account only and shall not in any way affect the existence of a Default
hereunder.


 


6.7                                 Notification of Account Debtors. The
Collateral Agent may at any time after Default by Grantor notify the
account debtors or obligors of any accounts, chattel paper, negotiable
instruments or other evidences of indebtedness included in the Personal
Property to pay the Collateral Agent directly.


 


6.8                                 Reproduction as Financing Statement. A
carbon, photographic or other reproduction of this Deed of Trust or of any
financing statement relating to this Deed of Trust shall be sufficient as a
financing statement.


 


6.9                                 Fixture
Filing. This Deed of Trust shall be effective as a financing statement
filed as a fixture filing with respect to all fixtures now or hereafter included
within the Mortgaged Property and is to be filed for record in the real
property records in the Office of the County Clerk for the county or counties
where the Mortgaged Property (including said fixtures) is situated. This Deed
of Trust shall also be effective as a financing statement covering as-extracted
collateral, and is to be filed for record in the real property records of the
county where the Mortgaged Property is situated. The mailing address of Grantor
(debtor) is set forth on the first page of this Deed of Trust and the
address of the Collateral Agent (secured party) from which information
concerning the security interest may be obtained is the address of the
Collateral Agent set forth in Paragraph 1.1 of this Deed of Trust. Grantor
is a corporation, the Grantor’s jurisdiction of organization is Texas, and the
Grantor’s organizational identification number is 105301600.


 


6.10                           Filing and Recordation. Grantor
will cause this Deed of Trust and all amendments and supplements thereto and
substitutions therefor and all financing statements and continuation statements
relating hereto to be recorded, filed, re-recorded and refiled in such manner
and in such places as Trustee or the Collateral Agent shall reasonably request,
and will pay all such recording, filing, re-recording and refiling taxes, fees
and other charges. Grantor hereby authorizes the Collateral Agent or the
Trustee to file any financing statement or financing statement amendment
covering the Personal Property or relating to the security interest created
herein.


 


6.11                           Dealing with Successor. In the
event the ownership of the Mortgaged Property or any part thereof becomes
vested in a person other than Grantor, the Collateral Agent may,


 


35

















 


without notice to
Grantor, deal with such successor or successors in interest with reference to
this Deed of Trust and to the Indebtedness in the same manner as with Grantor,
without in any way vitiating or discharging Grantor’s liability hereunder or
for the payment of the Indebtedness; provided, however, nothing in this
Paragraph shall be construed as permitting any transfer of the Mortgaged
Property which would constitute a Default under this Deed of Trust. No sale of
the Mortgaged Property, no forbearance on the part of the Collateral Agent
and no extension of the time for the payment of the Indebtedness given by the
Collateral Agent shall operate to release, discharge, modify, change or affect,
in whole or in part, the liability of Grantor hereunder or for the payment of
the Indebtedness or the liability of any other person hereunder or for the
payment of the Indebtedness, except as agreed to in writing by the Collateral
Agent.


 


6.12                           Place of Payment. The Indebtedness
shall be payable at the place designated in the Credit Agreement, or if no such
designation is made, at the office of the Collateral Agent at the address
indicated in this Deed of Trust, or at such other place as the Collateral Agent
may designate in writing.


 


6.13                           Subrogation. To the extent that
proceeds of the Notes are used to pay indebtedness secured by any outstanding
lien, security interest, charge or prior encumbrance against the Mortgaged
Property, such proceeds have been advanced by the Collateral Agent at Grantor’s
request and the Collateral Agent shall be subrogated to any and all rights,
security interests and liens owned or held by any owner or holder of such
outstanding liens, security interests, charges or encumbrances, irrespective of
whether said liens, security interests, charges or encumbrances are released;
provided, however, that the terms and provisions of this Deed of Trust shall
govern the rights and remedies of the Collateral Agent and shall supersede the
terms, provisions, rights and remedies under and pursuant to the instruments
creating the liens, security interests, charges or encumbrances to which the
Collateral Agent is subrogated hereunder.


 


6.14                           Application of Indebtedness. If any
part of the Indebtedness cannot be lawfully secured by this Deed of Trust
or if any part of the Mortgaged Property cannot be lawfully subject to the
lien and security interest hereof to the full extent of the Indebtedness, then
all payments made shall be applied on said Indebtedness first in discharge of
that portion thereof which is unsecured by this Deed of Trust.


 


6.15                           Usury. This Deed of Trust has been
executed under, and shall be construed and enforced in accordance with, the
laws of the State of Texas, except as such laws are preempted by federal law. This
Deed of Trust and all of the other Loan Documents are intended to be performed
in accordance with, and only to the extent permitted by, all applicable usury
laws. If any provision hereof or of any of the other Loan Documents or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, neither the application of such
provision to any other person or circumstance nor the remainder of the
instrument in which such provision is contained shall be affected thereby and
shall be enforced to the greatest extent permitted by Applicable Laws. It is
expressly stipulated and agreed to be the intent of Grantor and the Collateral
Agent to at all times comply with the usury and other applicable laws now or
hereafter governing the interest payable on the Indebtedness. If the applicable
law is ever revised, repealed or judicially interpreted so as to render
usurious any


 


36

















 


amount called for under
the Notes or under any of the other Loan Documents, or contracted for, charged,
taken, reserved or received with respect to the Indebtedness, or if the
Collateral Agent’s exercise of the option to accelerate the maturity of the
Indebtedness, or if any prepayment of the Indebtedness results in the payment
of any interest in excess of that permitted by law, then it is the  express intent of Grantor and the Collateral
Agent that all excess amounts theretofore collected by the Collateral Agent be
credited on the principal balance of the Notes (or, if the Notes and all of
such other Indebtedness have been paid in full, refunded), and the provisions
of the Notes and the other Loan Documents immediately be deemed reformed and
the amounts thereafter collectable hereunder and thereunder reduced, without the
necessity of the execution of any new document, so as to comply with the then
Applicable Laws, but so as to permit the recovery of the fullest amount
otherwise called for hereunder or thereunder. All sums paid, or agreed to be
paid, for the use, forbearance , detention, taking, charging, receiving or
reserving on the Indebtedness shall, to the extent permitted by Applicable
Laws, be amortized, prorated, allocated and spread throughout the full term of
such Indebtedness until payment in full so that the rate or amount of interest
on account of such Indebtedness does not exceed the usury ceiling from time to
time in effect and applicable thereto for so long as debt is outstanding under
the Indebtedness. To the extent that the Collateral Agent is relying on Chapter
303  of the Texas Finance Code to
determine the maximum rate (“Maximum Rate”)
payable on the Indebtedness, the Collateral Agent will utilize the weekly
ceiling from time to time in effect as provided in such Chapter. To the extent
the law governing the Notes or federal law permits the Collateral Agent to
contract for, charge or receive a greater amount of interest, the Collateral
Agent will rely on the law governing the Notes or federal law instead of such
Chapter, as amended, for the purpose of determining the Maximum Rate. Additionally,
to the extent permitted by applicable law now in effect, the Collateral Agent
may, at its option and from time to time, implement any other method of
computing the Maximum Rate under such article, as amended, or under other
applicable law by giving notice, if required, to Grantor as provided by
applicable law now or hereafter in effect. In no event shall the provisions of
Chapter 346 of the Texas Finance Code (which regulates certain revolving credit
loan accounts and revolving triparty accounts) apply to the Indebtedness. Notwithstanding
anything to the contrary contained herein or in any of the other Loan
Documents, it is not the intention of the Collateral Agent to accelerate the
maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration.


 


6.16                           Notice. Any notice, request, demand
or other communication required or permitted hereunder shall be given and
received in accordance with Article 16 of the Credit Agreement; provided
that, service of a notice required by Texas Property Code §51.002 shall be
considered complete when the requirements of that statute are met.


 


6.17                           Heirs, Successors and Assigns. The
terms, provisions, covenants and conditions hereof shall be binding upon
Grantor, and the heirs, devisees, representatives, successors and assigns of
Grantor including all successors in interest of Grantor in and to all or any part of
the Mortgaged Property, and shall inure to the benefit of Trustee and the
Collateral Agent and their respective heirs, successors, substitutes and
assigns and shall constitute covenants running with the Land. All references in
this Deed of Trust to Grantor, Trustee or the Collateral Agent shall be deemed
to include all such heirs, devisees, representatives, successors, substitutes
and assigns.


 


37

















 


6.18                           Severability. A determination that
any provision of this Deed of Trust is unenforceable or invalid shall not affect
the enforceability or validity of any other provision and any determination
that the application of any provision of this Deed of Trust to any person or
circumstance is illegal or unenforceable 
shall not affect the enforceability or validity of such provision as it may apply
to any other persons or circumstances.


 


6.19                           Gender and Number. Within this Deed
of Trust, words of any gender shall be held and construed to include any other
gender, and words in the singular number shall be held and construed to include
the plural and words in the plural number shall be held and construed to
include the singular, unless in each instance the context otherwise requires.


 


6.20                           Counterparts. This Deed of Trust may be
executed in any number of counterparts with the same effect as if all parties
hereto had signed the same document. All such counterparts shall be construed
together and shall constitute one instrument, but in making proof hereof it
shall only be necessary to produce one such counterpart.


 


6.21                           Joint and Several. Where two or
more persons or entities have executed this Deed of Trust, unless the context
clearly indicates otherwise, the term “Grantor” as
used in this Deed of Trust means the grantors hereunder or either or any of
them and the obligations of Grantor hereunder shall be joint and several.


 


6.22                           Reporting Requirements. Grantor
agrees to comply with any and all reporting requirements applicable to the
transaction evidenced by the Notes and secured by this Deed of Trust which are
set forth in any law, statute, ordinance, rule, regulation, order or
determination of any governmental authority (including, but not limited to, The
International Investment Survey Act of 1976, The Agricultural Foreign
Investment Disclosure Act of 1978, The Foreign Investment in Real Property Tax
Act of 1980 and the Tax Reform Act of 1984) and further agrees upon
request of the Collateral Agent to furnish the Collateral Agent with evidence
of such compliance.


 


6.23                           Headings. The Paragraph headings
contained in this Deed of Trust are for convenience only and shall in no way
enlarge or limit the scope or meaning of the various and several Paragraphs
hereof.


 


6.24                           Consent of the Collateral Agent. Except
where otherwise provided herein, in any instance hereunder where the approval,
consent or the exercise of judgment of the Collateral Agent is required, the
granting or denial of such approval or consent and the exercise of such
judgment shall be within the sole discretion of the Collateral Agent, and the
Collateral Agent shall not, for any reason or to any extent, be required to
grant such approval or consent or exercise such judgment in any particular
manner, regardless of the reasonableness of either the request or the
Collateral Agent’s judgment.


 


6.25                           Modification or Termination. The
Loan Documents may only be modified or terminated by a written instrument
or instruments executed by the party against which


 


38

















 


enforcement of the
modification or termination is asserted. Any alleged modification or
termination which is not so documented shall not be effective as to any party. Grantor
agrees that it shall be bound by any modification of this Deed of Trust or any
of the other Loan Documents made by the Collateral Agent and any subsequent
owner of the Mortgaged Property, with or without notice to or consent of
Grantor, and no such modification shall impair the obligations of Grantor under
this Deed of Trust or under any other Loan Document.


 


6.26                           Negation of Partnership. Nothing
contained in the Loan Documents is intended to create any partnership, joint
venture or association between Grantor and the Collateral Agent, or in any way
make the Collateral Agent a co-principal with Grantor with reference to the
Mortgaged Property, and any inferences to the contrary are hereby expressly
negated.


 


6.27                           Entire Agreement. The Loan
Documents constitute the entire understanding and agreement between Grantor and
the Collateral Agent with respect to the transactions arising in connection
with the Indebtedness and supersede all prior written or oral understandings
and agreements between Grantor and the Collateral Agent with respect thereto. Grantor
hereby acknowledges that, except as incorporated in writing in the Loan
Documents, there are not, and were not, and no persons are or were authorized
by the Collateral Agent to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
transaction which is the subject of the Loan Documents.


 


6.28                           Applicable Law. THIS DEED OF TRUST AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING
EFFECT TO TEXAS’ PRINCIPLES OF CONFLICTS OF LAW) AND THE LAW OF THE UNITED
STATES APPLICABLE TO TRANSACTIONS IN SUCH STATE; PROVIDED, HOWEVER, WITH
RESPECT TO THE MAXIMUM RATE OF INTEREST THAT CAN BE CHARGED AND COLLECTED, THE
LAWS GOVERNING THE NOTES SHALL BE APPLICABLE. GRANTOR HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY TEXAS OR FEDERAL COURT SITTING
IN HOUSTON, TEXAS (OR ANY COUNTY IN TEXAS WHERE ANY PORTION OF THE PROPERTY IS
LOCATED) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
OF THE LOAN DOCUMENTS, AND GRANTOR HEREBY AGREES AND CONSENTS THAT, IN ADDITION
TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL
SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY TEXAS OR
FEDERAL COURT SITTING IN HOUSTON, TEXAS (OR SUCH OTHER COUNTY IN TEXAS) MAY BE
MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO
GRANTOR AT THE ADDRESS OF GRANTOR FOR THE GIVING OF NOTICES SET FORTH IN THIS
DEED OF TRUST, AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER
THE SAME SHALL HAVE BEEN SO MAILED.


 


39

















 


6.29                        Waiver
of Jury Trial. GRANTOR AND THE COLLATERAL AGENT, FOR ITSELF AND THE
CREDITORS (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY, AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN
GRANTOR AND THE COLLATERAL AGENT ARISING OUT OF OR IN ANY WAY RELATED TO THIS
DEED OF TRUST OR ANY OTHER LOAN DOCUMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE CREDITORS TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE
OTHER LOAN DOCUMENTS.


 


40

















 


	
  EXECUTED as of August 13,
  2004.

  	
   

  
	
   

  	
   

  
	
   

  	
  STOLTHAVEN
  HOUSTON INC., a

  
	
   

  	
   Texas
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Alan Winsor

  
	
   

  	
   

  	
  Title: Secretary

  



 


 


	
  STATE OF NEW YORK:

  	
  ‘

  
	
   

  	
  ‘

  
	
  COUNTY OF NEW YORK

  	
  ‘

  



 


This instrument was
acknowledged before me on the 13th 
day of August, 2004 by Alan Winsor, Secretary of  Stolthaven Houston Inc., a Texas corporation,
on behalf of said corporation.


 


	
  [SEAL]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notary Public, State of
  New York

  



 


41






 













 


EXHIBIT “A”


 


TO


 


DEED OF TRUST, SECURITY
AGREEMENT AND


ASSIGNMENT OF RENTS AND LEASES


EXECUTED BY STOLTHAVEN HOUSTON
INC.,


AS GRANTOR


 


42

















 


EXHIBIT “B”


 


TO


 


DEED OF TRUST, SECURITY
AGREEMENT AND


ASSIGNMENT OF RENTS AND LEASES


EXECUTED BY STOLTHAVEN HOUSTON
INC.,


AS GRANTOR


 


PERMITTED ENCUMBRANCES


 


None.


 


43

















 


EXHIBIT F


 


 


PLEDGE AGREEMENT


 


 


STOLT-NIELSEN TRANSPORTATION
GROUP INC.


 


and


 


DNB NOR BANK ASA,


NEW YORK BRANCH


 


 


August 13, 2004


 

















 


PLEDGE
AGREEMENT


 


THIS PLEDGE AGREEMENT (this “Pledge Agreement”)
is made as of this 13th day of August, 2004, between (i) STOLT-NIELSEN
TRANSPORTATION GROUP INC., a corporation organized and existing under the laws
of the State of Delaware having its principal place of business and chief
executive office at 8 Sound Shore Drive, P.O. Box
2300, Greenwich, CT  06836 (herein
called the “Pledgor”), and (ii) DNB NOR BANK ASA, acting through its New
York branch, in its capacity as collateral agent (herein called the “Pledgee”)
for and on behalf of the Lenders and the Agents (together, the “Creditors”).


 


WITNESSETH:


 


WHEREAS:


 


A.                                   Pursuant
to a term loan and revolving credit facility agreement dated August 13,
2004 (the “Credit Agreement”) made by and among (i) Stolthaven Houston, Inc.,
a Texas corporation (“Stolthaven Houston”), and Stolthaven New Orleans LLC, a
Louisiana limited liability company (“Stolthaven New Orleans”), as borrowers
(collectively, the “Borrowers’), (ii) the banks and financial institutions
listed on Schedule 1 of the Credit Agreement, as lenders (together with
any bank or financial institution which becomes a Lender pursuant to Section 10
of the Credit Agreement, the “Lenders”), (iii) DnB NOR Bank ASA, acting
through its New York Branch, as administrative agent for the Lenders (in such
capacity, the “Administrative Agent”), and (iv) the Pledgee as collateral
agent for the Lenders (in such capacity, the “Collateral Agent” and, together
with the Administrative Agent, the “Agents”), the Agents have agreed to serve
in their respective capacities under the Credit Agreement and the Lenders have
agreed to provide to the Borrowers a secured term loan in the amount of up to
US$150,000,000 (the “Term Loan”) and a secured revolving credit facility in the
amount of up to US$20,000,000 (the “Revolver” and together with the Term Loan,
the “Credit Facilities”);


 


B.                                     As
of the date hereof, the Pledgor is the registered and beneficial owner of all
of the issued and outstanding shares of capital stock (the “Stolthaven Houston
Shares”) of Stolthaven Houston, which Stolthaven Houston Shares are represented
by certificate No. 5 (the “Stolthaven Houston Certificate”);


 


C.                                     As
of the date hereof, the Pledgor is the registered and beneficial owner of all
of the membership interests (the “Stolthaven New Orleans Membership Interests”
and together with the Stolthaven Houston Shares, the “Pledged Interests”) of
Stolthaven New Orleans, which Stolthaven New Orleans Membership Interests are
represented by certificate No. 1 (the “Stolthaven New Orleans Certificate”
and together with the Stolthaven Houston Certificate, the “Certificates”); and


 


D.                                    It
is a condition precedent to the Lenders providing the Credit Facilities to the
Borrowers that the Pledgor shall execute and deliver to the Pledgee, among
other things, this Pledge Agreement as security for the obligations of
Borrowers under the Credit Agreement.


 

















 


NOW, THEREFORE, in consideration of the
premises and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Pledgor agrees with the Pledgee as
follows:


 


1.                                       Defined Terms.
Unless otherwise defined herein, terms defined in Appendix A to the Credit
Agreement shall have the same meanings when used herein.


 


2.                                       Guaranty;
Grant of Security. The Pledgor, as primary obligor and not merely as
surety, irrevocably, unconditionally and absolutely guarantees to the Pledgee,
for the account of the Creditors, on first demand the due and punctual payment,
when due, whether by acceleration or otherwise, of all sums owing by the
Borrowers to any of the Creditors under the Credit Agreement, the Notes and the
Security Documents, together with any and all out-of-pocket legal costs and
other expenses incurred in connection therewith by any of the Creditors and, in
case of extension of time of payment or renewal in whole or in part of the
said obligations of the Borrowers, the prompt payment when due of all said sums
according to such extension or extensions or renewal or renewals, whether by
acceleration or otherwise; provided that the liability of the Pledgor with
respect to such guaranty shall be limited exclusively to the Pledged Interests.
As security for (a) the full and prompt payment to the Creditors of all
sums owing by the Borrowers to the Creditors whether for principal, interest,
fees, expenses or otherwise, under and in connection with the Credit Agreement
and the due and punctual performance by each of the Borrowers of its respective
obligations in connection therewith, and (b) the due and punctual
performance by the Pledgor of all its obligations under this Pledge Agreement,
the Credit Agreement and the other Security Documents to which it is a party
(all of the above under (a) and (b) now or hereafter existing hereinafter
together called the “Obligations”), the Pledgor hereby pledges, assigns,
transfers and delivers to the Pledgee as Collateral Agent the Pledged Interests
and hereby grants to the Pledgee a first lien on, and first security interest
in, the Pledged Interests.


 


3.                                       Pledge
Documents. Concurrently with the execution of this Pledge Agreement, the
Pledgor shall execute and deliver to the Pledgee an irrevocable proxy in favor
of the Pledgee in respect of the Pledged Interests in the form set out in Exhibit A
hereto (each, an “Irrevocable Proxy” and collectively, the “Irrevocable Proxies”)
and shall deliver to the Pledgee the Certificates together with signed, undated
instruments of transfer pertaining thereto duly executed in blank


 


4.                                       Representations
and Warranties. The Pledgor represents and warrants that:


 


(i)                                     it
is the legal and beneficial owner of, and has good and marketable title to, the
Pledged Interests delivered to the Pledgee on the date hereof, subject to no
pledge, lien, mortgage, hypothecation, security interest, charge, option or
other encumbrance whatsoever, except the lien and security interest created by
this Pledge Agreement and the delivery of the Pledged Interests to the Pledgee;


 


2

















 


(ii)                                  it
has full power, authority and legal right to execute, deliver and perform this
Pledge Agreement and to create the collateral security interest for which this
Pledge Agreement provides;


 


(iii)                               the
Stolthaven Houston Shares (a) have been duly and validly issued and are
fully paid and nonassessable and (b) constitute 100% of the issued and
outstanding capital stock of Stolthaven Houston;


 


(iv)                              the
Stolthaven New Orleans Membership Interests (a) have been duly and validly
issued and are fully paid and nonassessable and (b) constitute 100% of the
issued and outstanding membership interests of Stolthaven New Orleans;


 


(v)                                 this
Pledge Agreement constitutes a valid obligation of the Pledgor, legally binding
upon it and enforceable in accordance with its terms;


 


(vi)                              the
pledge, hypothecation, assignment and delivery of the Pledged Interests
pursuant to this Pledge Agreement creates a valid first perfected security
interest in each of the Pledged Interests and the proceeds thereof;


 


(vii)                           no
consent of any other party (including stockholders of the Pledgor) is required
in connection with the execution, delivery, performance, validity,
enforceability or enforcement of this Pledge Agreement, and no consent,
license, approval or authorization of, or registration or declaration with, any
governmental authority, bureau or agency is required in connection with the
execution, delivery, performance, validity, enforceability or enforcement of
this Pledge Agreement;


 


(viii)                        the
execution, delivery and performance of this Pledge Agreement will not violate
or contravene any provision of any existing law or regulation or decree of any
court, governmental authority, bureau or agency having jurisdiction in the
premises or of the Certificate of Incorporation, by-laws or other charter documents
of the Pledgor or the Borrowers or of any mortgage, indenture, security
agreement, contract, undertaking or other agreement to which the Pledgor is a
party or which purports to be binding upon it or any of its properties or
assets and will not result in the creation or imposition of any lien, charge or
encumbrance on, or security interest in, any of its properties or assets
pursuant to the provisions of any such mortgage, indenture, security agreement,
contract, undertaking or other agreement except as contemplated herein; and


 


(ix)                                the
representations and warranties set forth in Article 2 of the Credit
Agreement insofar as they relate to the Pledgor are true and complete and that
the Pledgor will comply with each of the


 


3

















 


covenants set forth in the Credit Agreement
which are applicable to the Pledgor.


 


5.                                       Covenants.
The Pledgor hereby covenants that during the continuance of this security:


 


(i)                                     it
shall warrant and defend the right and title of the Pledgee conferred by this
Pledge Agreement in and to the Pledged Interests at the cost of the Pledgor
against the claims and demands of all persons whomsoever;


 


(ii)                                  except
as herein provided, without the prior written consent of the Pledgee, it shall
not sell, assign, transfer, charge, pledge or encumber in any manner any part of
the Pledged Interests or suffer to exist any encumbrance on the Pledged
Interests; and


 


(iii)                               without
the prior written consent of the Pledgee it shall not take from the Borrowers,
individually or collectively, any undertaking or security in respect of its
liability hereunder or in respect of any other liability of the Borrowers,
individually or collectively, to the Pledgor and the Pledgor shall not prove
nor have the right of proof in competition with the Pledgee, for any monies
whatsoever owing from the Borrowers, individually or collectively, to the
Pledgor, in any insolvency or liquidation, or analogous proceedings under any
applicable law, of the Borrowers.


 


6.                                       Delivery of
Additional Interests. If the Pledgor shall become entitled to receive or
shall receive any stock certificates (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital, or issued in connection
with any reorganization), membership certificates, option or rights, whether as
an addition to, in substitution of, or in exchange for any of the Pledged
Interests, the Pledgor agrees to accept the same as the agent of the Pledgee
and to hold the same in trust for the benefit of the Pledgee and to deliver the
same forthwith to the Pledgee in the exact form received, with the
endorsement of the Pledgor when necessary and/or appropriate undated
instruments of transfer duly executed in blank, and irrevocable proxies for any
stock certificates or membership certificates so received, in substantially the
form of Exhibit A to be held by the Pledgee, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums paid
upon or in respect of the Pledged Interests on the liquidation or dissolution
of Stolthaven Houston or Stolthaven New Orleans shall be paid over to the
Pledgee to be held by it as additional collateral security for the Obligations.


 


7.                                       Collateral.
All property at any time pledged to the Pledgee hereunder by the Pledgor
(whether described herein or not) and all income therefrom and proceeds
thereof, are herein collectively sometimes called the “Collateral”.


 


8.                                       General
Authority. The Pledgor hereby consents that, without the necessity of any
reservation of rights against the Pledgor, and without notice to or further
assent by the Pledgor, any demand for payment of any of the Obligations made by
the Pledgee may be


 


4

















 


rescinded by the Pledgee and any of the Obligations continued, and the
Obligations, or the liability of the Pledgor upon or for any part thereof,
or any other collateral security (including, without limitation, any collateral
security held pursuant to the Credit Agreement) or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
modified, accelerated, compromised, waived, surrendered, or released by the
Pledgee, and the Credit Agreement, any guarantees and any other collateral
security documents executed and delivered by the Pledgor or any other obligors
in respect of the Obligations may be amended, modified, supplemented or
terminated, in whole or in part, as the Pledgee may deem advisable, from
time to time, and any other collateral security at any time held by the Pledgee
for the payment of the Obligations (including, without limitation, any
collateral security held pursuant to any other collateral security document
executed and delivered pursuant to the Credit Agreement) may be sold,
exchanged, waived, surrendered or released, all without notice to or further
assent by the Pledgor, which will remain bound hereunder, notwithstanding any
such renewal, extension, modification, acceleration, compromise, amendment,
supplement, termination, sale, exchange, waiver, surrender or release. The
Pledgor waives any and all notices of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Pledgee upon this Pledge Agreement, and the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Pledge Agreement, and all dealings between Stolthaven Houston or
Stolthaven New Orleans and the Pledgee shall likewise be conclusively presumed
to have been had or consummated in reliance upon this Pledge Agreement. The
Pledgor waives diligence, presentment, protest, demand for payment and notice
of default of non-payment to or upon the Pledgor, Stolthaven Houston or
Stolthaven New Orleans with respect to the Obligations.


 


9.                                       Voting Rights.
The Pledgee shall as the Pledgee and as the holder of the Irrevocable Proxies
receive notice (if the Pledgee has requested to be provided with such notice)
and have the right to vote the Pledged Interests at its own discretion at, any
annual or special meeting, as the case may be, of the directors or
members, as the case may be, of the Borrowers, provided, however, that the
Pledgee shall not exercise such right to vote until such time that an Event of
Default shall have occurred and be continuing under the Credit Agreement or any
of the security created by or pursuant to this Pledge Agreement shall be
imperilled or jeopardized in a manner reasonably deemed material by the
Pledgee.


 


10.                                 Default. The
security constituted by this Pledge Agreement shall become immediately
enforceable on the occurrence and during the continuance of an Event of Default
under the Credit Agreement.


 


11.                                 Remedies. At
any time after the security constituted by this Pledge Agreement shall have
become enforceable as aforesaid or in the event any of the security created by
or pursuant to this Pledge Agreement shall be imperilled or jeopardized in a
manner reasonably deemed material by the Pledgee, whereupon the security
constituted by this Pledge Agreement shall become enforceable, the Pledgee
shall be entitled without further notice to the Pledgor:


 


(i)                                     subject
to the limitations of Section 9-610 and 9-615 of the Uniform Commercial
Code of the State of New York (if


 


5

















 


applicable), to sell, assign, transfer and
deliver at any time the whole, or from time to time any part, of the Collateral
or any rights or interests therein, at public or private sale or in any other
manner, at such price or prices and on such terms as the Pledgee may deem
appropriate, and either for cash, on credit, for other property or for future
delivery, at the option of the Pledgee, upon not less than 10 days’ written
notice (which 10 day notice is hereby acknowledged by the Pledgor to be
reasonable) addressed to the Pledgor at its last address on file with the
Pledgee, but without demand, advertisement or other notice of any kind (all of
which are hereby expressly waived by the Pledgor). If any of the Collateral or
any rights or interests thereon are to be disposed of at a public sale, the
Pledgee may, without notice or publication, adjourn any such sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, occur at the time
and place identified in such announcement. If any of the Collateral or any
rights or interests therein shall be disposed of at a private sale, the Pledgee
shall be relieved from all liability or claim for inadequacy of price. At any
such public sale the Pledgee may purchase the whole or any part of
the Collateral or any rights or interests therein so sold. Each purchaser,
including the Pledgee should it acquire the Collateral, at any public or
private sale shall hold the property sold free from any claim or right of
redemption, stay, appraisal or reclamation on the part of the Pledgor
which are hereby expressly waived and released to the extent permitted by
applicable law. If any of the Collateral or any rights or interests therein
shall be sold on credit or for future delivery, the Collateral or rights or
interests so sold may be retained by the Pledgee until the selling price
thereof shall be paid by the purchaser, but the Pledgee shall not incur any
liability in case of failure of the purchaser to take up and pay for the
Collateral or rights or interests therein so sold. In case of any such failure,
such Collateral or rights or interests therein may again be sold or not
less than 10 days’ written notice as aforesaid;


 


(ii)                                  to
exercise any and all rights of conversion, exchange, subscription or any other
rights, privileges or options pertaining to the Pledged Interests as if it was
the absolute owner thereof, including, without limitation, the right to
exchange at its discretion, any and all of the Pledged Interests upon the
merger, consolidation, reorganization, recapitalization or other readjustment
of Stolthaven Houston or Stolthaven New Orleans or, upon the exercise by
Stolthaven Houston or Stolthaven New Orleans or the Pledgee of any right,
privilege or option pertaining to any of the Pledged Interests, and in
connection


 


6

















 


therewith, to deposit and deliver any and all
of the Pledged Interests with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as it may determine,
all without liability except to account for property actually received by it.


 


In addition to the rights and remedies granted to it in this Pledge
Agreement and in any other instrument or agreement securing, evidencing or
relating to any of the Obligations, the Pledgee shall have rights and remedies
of a secured party under the Uniform Commercial Code of the State of New
York.


 


The following provisions of this paragraph shall,
without limiting the generality of any other provision of this Pledge
Agreement, be applicable in the event, in connection with any foreclosure
hereunder, Louisiana law shall be applicable. Pledgee, instead of exercising
the power of sale herein conferred upon it, may proceed by a suit or suits
at law or in equity to foreclose the security interests hereunder granted and
sell the Collateral, or any portion thereof, under a judgment or decree of a
court or courts of competent jurisdiction. For the purposes of Louisiana
executory process procedures, Pledgor does hereby acknowledge the Obligations
and confess judgment in favor of Pledgee and the Lenders for the full amount of
the Obligations. Pledgor does by these presents consent and agree that upon the
occurrence of an Event of Default it shall be lawful for Pledgee to cause all
and singular the Collateral to be seized and sold under executory or ordinary
process, at Pledgee’s sole option, without appraisement, appraisement being
hereby expressly waived, in one lot as an entirety or in separate parcels or
portions as Pledgee may determine, to the highest bidder, and otherwise
exercise the rights, powers and remedies afforded herein and in the other
documents executed in connection with the Obligations and under applicable
Louisiana law. Any and all declarations of fact made by authentic act before a
Notary Public in the presence of two witnesses by a person declaring that such
facts lie within his knowledge shall constitute authentic evidence of such
facts for the purpose of executory process. Pledgor hereby waives:  (a) the benefit of appraisement as
provided in Louisiana Code of Civil Procedure Articles 2332, 2336, 2723 and
2724, and all other laws conferring the same; (b) the demand and three
days delay accorded by Louisiana Code of Civil Procedure Articles 2639 and
2721; (c) the notice of seizure required by Louisiana Code of Civil
Procedure Articles 2293 and 2721; (d) the three days delay provided by
Louisiana Code of Civil Procedure Articles 2331 and 2722; and (e) the
benefit of the other provisions of Louisiana Code of Civil Procedure Articles
2331, 2722 and 2723, not specifically mentioned above. In the event the
Collateral or any part thereof is seized as an incident to an action for
the recognition or enforcement of this Agreement by executory process, ordinary
process, sequestration, writ of fieri facias, or otherwise, Pledgor and Pledgee
agree that the court issuing any such order shall, if petitioned for by
Pledgee, direct the applicable sheriff to appoint as a keeper of the
Collateral, Pledgee or any agent designated by Pledgee or any person named by
Pledgee at the time such seizure is effected. This designation is pursuant to
Louisiana Revised Statutes 9:5136-9:5140.2 and Pledgee shall be entitled to all
the rights and benefits afforded thereunder as the same may be amended. It
is hereby agreed that the keeper shall be entitled to receive a reasonable
compensation in addition to its reasonable costs and expenses incurred in the
administration or preservation of the Collateral. Such amounts shall also be
secured by this Pledge Agreement.


 


7

















 


The designation of keeper made herein shall not be
deemed to require Pledgee to provoke the appointment of such a keeper.


 


12.                                 No Duty on Pledgee.
The Pledgee shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.


 


13.                                 Application of
Proceeds. All moneys collected or received by the Pledgee pursuant to this
Pledge Agreement shall be dealt with as provided in the Credit Agreement.


 


14.                                 Termination.
When all of the Obligations shall have been fully and indefeasibly satisfied,
the Pledgee agrees that it shall forthwith release the Pledgor from its
Obligations hereunder and the Pledgee, at the request and expense of the
Pledgor, will promptly execute and deliver to the Pledgor a proper instrument
or instruments acknowledging the satisfaction and termination of this
Agreement, and the Irrevocable Proxies shall terminate forthwith and be
delivered to the Pledgor forthwith together with the other items furnished to
the Pledgee pursuant to Section 3 hereof.


 


15.                                 Further Assurances.
The Pledgor shall from time to time, and at all times after the security
constituted by this Pledge Agreement shall have become enforceable, execute all
such further instruments and documents and do all such things as the Pledgee may reasonably
deem desirable for the purpose of obtaining the full benefit of this Pledge
Agreement and of the rights, title, interest, powers, authorities and
discretions conferred on the Pledgee by this Pledge Agreement including (without
limitation) causing Stolthaven Houston or Stolthaven New Orleans, as the case may be,
to execute any such instruments and documents as aforesaid. The Pledgor hereby
irrevocably appoints the Pledgee its attorney-in-fact for him and in its name
and on its behalf and as its act and deed to execute, seal and deliver and
otherwise perfect any deed, assurance, agreement, instrument or act which it may deem
desirable for any of the purposes of this Pledge Agreement; provided that the
Pledgee shall not exercise such power until the security constituted by this
Pledge Agreement shall have become enforceable. The Pledgee shall have full
power to delegate this power of attorney but no such delegation shall preclude
the subsequent exercise of such power by the Pledgee itself or preclude the
Pledgee from subsequent delegation to some other person and any delegation may be
revoked by the Pledgee at any time.


 


16.                                 No Waiver; Remedies
Cumulative and Exclusive. The Pledgee shall not by any act, delay, omission
or otherwise be deemed to have waived any of its rights or remedies hereunder,
and no waiver shall be valid unless in writing, signed by the Pledgee, and then
only to the extent therein set forth. A waiver by the Pledgee of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Pledgee would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
the Pledgee, any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights and remedies provided by law.


 


8

















 


17.                                 Changes in Writing;
Successors and Assigns. None of the terms or provisions of this Pledge
Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Pledgee. This Pledge Agreement and
all obligations of the Pledgor hereunder shall be binding upon the successors
and assigns of the Pledgor and shall, together with the rights and remedies of
the Pledgee hereunder, inure to the benefit of the Pledgee, its respective
successors and assigns.


 


18.                                 Notices.
Notices and other communications hereunder shall be in writing and may be
sent by telefax,  confirmed by certified
mail if domestic (by Federal Express, express mail or courier, if
international) as follows:


 


	
  If to the Pledgor -

  	
   

  	
  c/o Stolt-Nielsen Inc.

  
	
   

  	
   

  	
  8 Sound Shore Drive

  
	
   

  	
   

  	
  Greenwich, CT 06836

  
	
   

  	
   

  	
  Attn: Howard J. Merkel

  
	
   

  	
   

  	
  Telephone: (203) 

  	
  -

  	
   

  
	
   

  	
   

  	
  Facsimile:(203) 661-7695

  
	
   

  	
   

  	
   

  
	
  If to the Pledgee -

  	
   

  	
  200 Park Avenue

  
	
   

  	
   

  	
  New York, New York  10166-0396

  
	
   

  	
   

  	
  Attention: Sanjiv Nayar

  
	
   

  	
   

  	
  Telephone :(212) 681-3862

  
	
   

  	
   

  	
  Facsimile: (212) 681-3900

  



 


Every notice or demand shall, except so far
as otherwise expressly provided by this Pledge Agreement, be deemed to have
been received (provided that it is received prior to 2 p.m. New York
time), (i) if given by facsimile, on the date of dispatch thereof
(provided that if the date of dispatch is not a Business Day in the locality of
the party to whom such notice or communication is sent it shall be deemed to
have been received on the next following Business Day in such locality), and (ii) if
given by mail, prepaid overnight courier or any other means, when received at
the address specified in this Section or when delivery at such address is
refused..


 


19.                                 Governing Law.
This Pledge Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to the principles of conflicts of
law thereof.


 


20.                                 Submission to
Jurisdiction. The Pledgor hereby irrevocably submits to the jurisdiction of
the courts of the State of New York and of the United States District Court for
the Southern District of New York in any action or proceeding brought against
it by any of the Creditors under this Pledge Agreement or under any document
delivered hereunder and hereby irrevocably agrees that valid service of summons
or other legal process on it may be effected by serving a copy of the
summons and other legal process in any such action or proceeding on the Pledgor
by mailing or delivering the same by hand to the Pledgor at the address
indicated for notices in Section 18. The service, as herein provided, of
such summons or other legal process in any such action or proceeding shall be
deemed personal service and accepted by the Pledgor as


 


9

















 


such, and shall be legal and binding upon the Pledgor for all the
purposes of any such action or proceeding. Final judgment (a certified or
exemplified copy of which shall be conclusive evidence of the fact and of the
amount of any indebtedness of the Pledgor to the Pledgee) against the Pledgor
in any such legal action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment. The Pledgor will
advise the Pledgee promptly of any change of address for the purpose of service
of process. Notwithstanding anything herein to the contrary, the Pledgee may bring
any legal action or proceeding in any other appropriate jurisdiction.


 


21.                               WAIVER
OF JURY TRIAL. EACH OF THE PLEDGOR, AND BY ITS ACCEPTANCE HEREOF, THE
PLEDGEE, HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY
HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS  PLEDGE AGREEMENT.


 


22.                                 Severability.
If any provision hereof is invalid and unenforceable in any jurisdiction, then,
to the fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Pledgee in order to carry out the
intentions of the parties hereto as nearly as may be possible; and (ii) the
invalidity and unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.


 


23.                                 Counterparts.
This Pledge Agreement may be signed in any number of counterparts, each of
which shall be an original with the same effect as if the signatures thereto
and hereto were upon the same instrument.


 


24.                                 Headings. In
this Pledge Agreement, Section headings are inserted for convenience of
reference only and shall be ignored in the interpretation of this Pledge
Agreement.


 


[Signature Page Follows]


 


10

















 


IN WITNESS whereof the parties hereto have
caused this Pledge Agreement to be duly executed the day and year first above
written.


 


	
   

  	
  STOLT-NIELSEN TRANSPORTATION GROUP INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John Greenwood

  
	
   

  	
  Title:

  	
  Attorney-in-Fact

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DNB NOR BANK ASA,

  
	
   

  	
  NEW YORK BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 

















 


EXHIBIT A


 


IRREVOCABLE PROXY


 


The undersigned, the registered and beneficial owner
of the below described [shares][membership interests] of [Stolthaven Houston, Inc.][Stolthaven
New Orleans LLC], a [corporation][limited liability company] organized under
the laws of the State of [Texas][Louisiana] (the “Company”), hereby makes,
constitutes and appoints DNB NOR BANK ASA, acting through its New York branch,
(“the Pledgee”) with full power to appoint a nominee or nominees to act
hereunder from time to time, the true and lawful attorney and proxy of the
undersigned to vote 100% of the [shares of capital stock of][membership
interests in] the Company at all annual and special meetings of
[shareholders][members] of the Company or take any action by written consent
with the same force and effect as the undersigned might or could do, hereby
ratifying and confirming all that the said attorney or its nominee or nominees
shall do or cause to be done by virtue hereof.


 


The said [shares of capital stock][membership
interests] have been pledged (the “Pledge”) to the Pledgee pursuant to a Pledge
Agreement dated August 13, 2004 between the undersigned and the Pledgee.
This Proxy may be exercised only after the occurrence and during the
continuance of an Event of Default under and as defined in the Credit Agreement
executed and delivered in connection with the Pledge.


 


This power and proxy is coupled with an interest and
is irrevocable and shall remain irrevocable so long as the Pledge is
outstanding and is in full force and effect. [This Proxy shall survive longer
than eleven (11) months, but in any event as long as permitted under the laws
of the State of Louisiana.][For Stolthaven New Orleans only.]


 


IN WITNESS whereof the undersigned has caused this
instrument to be duly executed this      day of                   ,
2004.


 


	
   

  	
  STOLT-NIELSEN
  TRANSPORTATION GROUP

  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: John
  Greenwood

  
	
   

  	
  Title: Attorney-in-Fact

  



 

















 


IRREVOCABLE PROXY


 


The undersigned, the registered and beneficial owner
of the below described shares of Stolthaven Houston, Inc., a corporation
organized under the laws of the State of Texas (the “Company”), hereby makes,
constitutes and appoints DNB NOR BANK ASA, acting through its New York branch,
(“the Pledgee”) with full power to appoint a nominee or nominees to act
hereunder from time to time, the true and lawful attorney and proxy of the
undersigned to vote 100% of the shares of capital stock of the Company at all
annual and special meetings of shareholders of the Company or take any action
by written consent with the same force and effect as the undersigned might or
could do, hereby ratifying and confirming all that the said attorney or its
nominee or nominees shall do or cause to be done by virtue hereof.


 


The said shares of capital stock have been pledged
(the “Pledge”) to the Pledgee pursuant to a Pledge Agreement dated August 13,
2004 between the undersigned and the Pledgee. This Proxy may be exercised
only after the occurrence and during the continuance of an Event of Default
under and as defined in the Credit Agreement executed and delivered in
connection with the Pledge.


 


This power and proxy is coupled with an interest and
is irrevocable and shall remain irrevocable so long as the Pledge is
outstanding and is in full force and effect.


 


IN WITNESS whereof the undersigned has caused this
instrument to be duly executed this        day of
                    ,
2004.


 


	
   

  	
  STOLT-NIELSEN
  TRANSPORTATION GROUP

  INC.

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  Name: John
  Greenwood

  
	
   

  	
  Title: Attorney-in-Fact

  



 

















 


IRREVOCABLE PROXY


 


The undersigned, the registered and beneficial owner
of the below described membership interests of Stolthaven New Orleans LLC, a
limited liability company organized under the laws of the State of Louisiana
(the “Company”), hereby makes, constitutes and appoints DNB NOR BANK ASA,
acting through its New York branch, (“the Pledgee”) with full power to appoint
a nominee or nominees to act hereunder from time to time, the true and lawful
attorney and proxy of the undersigned to vote 100% of the membership interests
in the Company at all annual and special meetings of members of the Company or
take any action by written consent with the same force and effect as the
undersigned might or could do, hereby ratifying and confirming all that the
said attorney or its nominee or nominees shall do or cause to be done by virtue
hereof.


 


The said membership interests have been pledged (the “Pledge”)
to the Pledgee pursuant to a Pledge Agreement dated August 13, 2004
between the undersigned and the Pledgee. This Proxy may be exercised only
after the occurrence and during the continuance of an Event of Default under
and as defined in the Credit Agreement executed and delivered in connection
with the Pledge.


 


This power and proxy is coupled with an interest and
is irrevocable and shall remain irrevocable so long as the Pledge is
outstanding and is in full force and effect. This Proxy shall survive longer
than eleven (11) months, but in any event as long as permitted under the laws
of the State of Louisiana.


 


IN WITNESS whereof the undersigned has caused this
instrument to be duly executed this       day of                     ,
2004.


 


	
   

  	
  STOLT-NIELSEN
  TRANSPORTATION GROUP INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John
  Greenwood

  
	
   

  	
  Title:

  	
  Attorney-in-Fact

  
							



 

















 


EXHIBIT G


 


ASSIGNMENT AND
ASSUMPTION AGREEMENT


 


ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “Agreement”), dated as of                  
    , 200   among [NAME OF ASSIGNOR], a
[bank]/[corporation] organized under the laws of [JURISDICTION OF ASSIGNOR]
(the “Assignor”), and [NAME OF ASSIGNEE], a [bank]/[corporation] organized
under the laws of [JURISDICTION OF ASSIGNEE] (the “Assignee”), supplemental to:


 


(i)                                     that
certain term loan and revolving credit facility agreement dated as of July     ,
2004 (the “Credit Agreement”) and made by and among (i) Stolthaven Houston
Inc., a corporation incorporated under the laws of the State of Texas(“Stolthaven
Houston”) and Stolthaven New Orleans LLC, a limited liability company organized
under the laws of the State of Louisiana (“Stolthaven New Orleans”), as joint
and several borrowers (collectively, the “Borrowers” and each a “Borrower”), (ii) the
Lenders (as such term is defined in the Credit Agreement) and (iii) DnB
NOR Bank ASA, acting through its New York branch, as administrative agent (in
such capacity, the “Administrative Agent”), and as collateral agent (in such
capacity, the “Collateral Agent” and together with the Administrative Agent,
the “Agents”) for the Lenders, pursuant to which the Lenders agreed to provide
to the Borrower a secured term loan in the amount of up to US$150,000,000 (the “Term
Loan”) and a secured revolving credit facility in the amount of US$20,000,000
(the “Revolver” and together with the Term Loan, the “Credit Facilities”);


 


(ii)                                  the
promissory note from the Borrowers in favor of the Administrative Agent dated July     ,
2004 (the “Term Loan Note”) evidencing the Term Loan;


 


(ii)                                  the
promissory note from the Borrowers in favor of the Administrative Agent dated July     ,
2004 (the “Revolver Note” and together with the Term Loan Note, the “Notes”)
evidencing the Revolver;


 


(iii)                               the
Security Documents (as such term is defined in the Credit Agreement).


 


Except as otherwise
defined herein, terms defined in the Credit Agreement shall have the same
meaning when used herein.


 


In consideration of the
premises and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:


 


1.                                       The
Assignor hereby sells, transfers and assigns •% of its
right, title and interest in, to and under the Credit Agreement, under the
Notes (including, without limitation, its interest in the indebtedness
evidenced by the Notes) and under the Security Documents to the Assignee. Simultaneously
herewith, the Assignee shall pay to the Assignor an amount equal to the product
derived by multiplying (a) US$•, being the sum of the present
outstanding principal balance of all Advances, by (b) the Assignor’s
percentage of interest in the Credit Facilities transferred pursuant hereto.


 

















 


2.                                       The
Assignee hereby assumes •% of the obligations of the Assignor under the Credit
Agreement (including, but not limited to, the obligation to advance its
respective percentage of any Advance as and when required) and shall
hereinafter be deemed a “Lender” for all purposes of the Credit Agreement, the Notes,
the Security Documents and any other Assignment and Assumption Agreement(s),
the Assignee’s Commitment thereunder being U.S.$• in respect
of the Credit Facilities.


 


3.                                       Each
of the Assignor and the Assignee shall each pay an administrative fee of U.S.
$2,500 to the Administrative Agent to reimburse the Administrative Agent for
its cost in processing the assignment and assumption herein contained.


 


4.                                       All
references in the Notes and in each of the Security Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as assigned
and assumed pursuant to the terms hereof.


 


5.                                       The
Assignee irrevocably designates and appoints the Agents as its agents and
irrevocably authorizes the Agents to take such action on its behalf and to exercise
such powers on its behalf under the Credit Agreement, under the Notes and under
the Security Documents, each as supplemented hereby, as are delegated to the
Agents by the terms of each thereof, together with such powers as are
reasonably incidental thereto all as provided in Section 15 of the Credit
Agreement.


 


6.                                       Every
notice or demand under this Agreement shall be in writing and may be given
by telecopy and shall be sent as follows:


 


	
   

  	
  If to the Assignor:

  
	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  Facsimile No.:

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
   

  
	
   

  	
  If to the Assignee

  
	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
  [ADDRESS]

  
	
   

  	
   

  	
  Facsimile No.:

  
	
   

  	
   

  	
  Attention:

  
				



 


Every notice or demand hereunder shall be deemed to have been received
at the time of receipt thereof.


 


7.                                       EACH OF THE ASSIGNOR, AND BY ITS ACCEPTANCE HEREOF, THE ASSIGNEE,
HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY ANY PARTY HERETO OR ANY BENEFICIARY HEREOF ON ANY MATTER WHATSOEVER ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.


 


2

















 


8.                                       This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.


 


9.                                       This
Agreement may be executed in several counterparts with the same effect as
if the parties executing such counterparts shall have all executed one
agreement as of the date hereof, each of which counterparts when executed and
delivered shall be deemed to be an original and all of such counterparts
together shall constitute this Agreement.


 


3

















 


IN WITNESS WHEREOF, the parties hereto have caused
this instrument to be duly executed as of the day and year first above written.


 


	
   

  	
  [NAME OF ASSIGNOR]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title

  	
   

  
					



 


4

















 


EXHIBIT H


 


Drawdown
Notice


 


            
    , 2004


 


DnB NOR Bank ASA


200 Park Avenue

31st Floor


New York, NY 10166


 


Ladies and Gentlemen:


 


Please be advised that, in accordance with Section 3.2
of the Term Loan and Revolving Credit Facility Agreement (the “Credit Agreement”)
among, inter  alia, you, as administrative agent (the “Administrative
Agent”), and each of Stolthaven Houston Inc. and Stolthaven New Orleans LLC, as
joint and several borrowers (collectively, the “Borrowers”), [to be] dated as
of                   
     , 2004, the undersigned hereby requests that [the
Term Loan][and][the Revolver] (as defined in the Credit Agreement) be advanced
to the Borrowers as follows:


 


	
   

  	
  Drawdown Date:

  	
   

  	
                 
      , 2004

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Amount[s] to be
  drawndown:

  	
   

  	
   

  
	
   

  	
   

  	
  [Term Loan Advance]

  	
   

  	
   

  	
  US$                 ]

  
	
   

  	
   

  	
  [Revolver Advance]

  	
   

  	
   

  	
  US$                 ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Disbursement Instructions:

  	
   

  	
   

  



 


The undersigned hereby represents and warrants that (a) the
representations and warranties stated in Section 2 of the Credit Agreement
(updated mutatis  mutandis) are true and correct on the date
hereof and will be true and correct on the Drawdown Date specified above as if
made on such date, and (b) no Event of Default has occurred and is
continuing or will have occurred and be continuing on the Drawdown Date, and no
event has occurred or is continuing which, with the giving of notice or lapse
of time, or both, would constitute an Event of Default.


 


The undersigned hereby covenants and undertakes that,
in the event that on the date specified for making available the Credit
Facilities as stated above, the Lenders (as defined in the Credit Agreement)
shall not be obliged under the Credit Agreement to make the Credit Facilities
available, the undersigned shall indemnify and hold the Lenders fully harmless
against any losses which the Lenders may sustain as a result of borrowing
or agreeing to borrow funds to meet the drawdown requirements as stated above,
and the certificate of the Administrative Agent


 

















 


shall (save and except for manifest error) be
conclusive and binding on the undersigned as to the extent of any losses
sustained by the Lenders.


 


This Drawdown
Notice is effective upon receipt by you and shall be irrevocable.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  STOLTHAVEN HOUSTON INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:

  	
   

  
	
   

  	
    Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  STOLTHAVEN NEW ORLEANS LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
    Name:

  	
   

  
	
   

  	
    Title:

  	
   

  
					



 


2

















 


EXHIBIT I


 


Form of
Compliance Certificate


 


STOLT
NIELSEN S.A. AND SUBSIDIARIES


USD
150,000,000 Senior Secured Credit Facilities


 


As of and for the period ended                
20    (figures in USD Thousands)


 


	
  A

  	
   

  	
  Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Capital Stock

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Paid-in Surplus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retained Earnings

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  less: Treasury
  Stock

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  less: Intangible
  Assets

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Minimum Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  600,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B

  	
   

  	
  Consolidated Debt

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Loans Payable to Banks

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notes Payable

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Current Maturities of Long Term Debt

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Current Maturities of Long Term Capitalised Leases

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Long Term Debt (net of current portion)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Long Term Capitalised Lease Obligations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Acceptance Credits

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bonds, Notes and Debentures

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Contingent Liabilities (considered probable and estimable)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  less: Cash-Covered
  Debt

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consolidated Debt

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ratio of Consolidated Debt to Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Maximum Ratio of Consolidated Debt to Consolidated Tangible Net Worth

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C

  	
   

  	
  Consolidated EBITDA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  -     -0

  	
   

  	
  -     -0

  	
   

  	
  -     -0

  	
   

  	
  -     -0

  	
   

  	
  Total

  	
   

  
	
   

  	
   

  	
  Net Income

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Interest Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Taxation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Depreciation/Amortisation/ Other Non-Cash Charges

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
  EBITDA

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consolidated EBITDA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Consolidated Interest Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ratio of Consolidated EBITDA to Consolidated Interest Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Minimum Ratio of Consolidated EBITDA to Consolidated Interest Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2.00

  	
   

  



 

















 


	
  D

  	
   

  	
  Applicable Margin

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ratio of Consolidated Debt to Consolidated EBITDA

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Less than or equal to 3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.375

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Greater than 3 but less than 4

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.625

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Greater than or equal to 4 but less than 5

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.750

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Greater than or equal to 5

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1.875

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Applicable Margin

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Applicable Commitment
  Commission

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E

  	
   

  	
  Net Worth of Stolthaven
  Houston

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Capital Stock

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Paid-in Surplus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retained Earnings

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  less: Treasury Stock

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Net Worth of Stolthaven Houston

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F

  	
   

  	
  Net Worth of Stolthaven New Orleans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Capital Stock/Members Capital

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Paid-in Surplus

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retained Earnings

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  less: Treasury Stock

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Net Worth of Stolthaven New
  Orleans

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


The undersigned, being the chief financial officer of STOLT-NIELSEN
S.A., a company organized and existing under the laws of the Duchy of
Luxembourg (“SNSA”), hereby certifies, on behalf of SNSA, to DNB NOR BANK ASA,
acting through its New York branch (“DNB NOR”), as Administrative Agent for the
Lenders (in such capacity, the “Administrative Agent”), in connection with that
certain term loan and revolving credit facility agreement, dated as of             
     , 2004 (the “Credit Agreement”), by and among, (i) Stolthaven
Houston, Inc., a Texas corporation (“Stolthaven Houston”), and Stolthaven
New Orleans LLC, a Louisiana limited liability company (“Stolthaven New Orleans”),
as borrowers (collectively, the “Borrowers”), (ii) the banks and financial
institutions listed on Schedule 1 of the Credit Agreement, as lenders
(together with any bank or financial institution which becomes a Lender
pursuant to Section 10 of the Credit Agreement, the “Lenders”), (iii) the
Administrative Agent, and (iv) DNB NOR as collateral agent for the
Lenders, as follows:


 


(i)                                     that
I have reviewed the consolidated financial statements of SNSA and its
Subsidiaries dated as of                         
and for the               
period then ended and such statements fairly present the financial condition of
SNSA and its Subsidiaries as of the dates indicated and the results of their
operations [and cash flows] for the periods indicated; and


 

















 


(ii)                                  that
I am familiar with the terms of the Credit Agreement, the Notes and the
Security Documents (collectively, the “Transaction Documents”) and have
made, or caused to be made such review of the condition of  the Borrowers and SNSA during the accounting
period covered by the financial statements referred to in clause (i) above
to determine whether an Event of Default of any event which with the giving of
notice or lapse of time of both would constitute an Event of Default exists
under the Transaction Documents; and


 


(iii)                               I
am not aware of any Event of Default nor any event which with the giving of
notice or lapse of time or both would constitute an Event of Default, nor do I
have knowledge of the existence of any such condition or event as at the date
of this Certificate [EXCEPT, [IF SUCH CONDITION OR EVENT EXISTED OR EXISTS,
DESCRIBE THE NATURE AND PERIOD OF EXISTENCE THEREOF AND WHAT ACTION SNSA, THE
BORROWERS OR ANY OTHER SECURITY PARTY, AS THE CASE MAY BE, HAS TAKEN, IS
TAKING AND PROPOSES TO TAKE WITH RESPECT THERETO]]; and


 


(iv)                              SNSA,
the Borrowers and each other Security Party is in compliance with the covenants
contained in Section 9 of the Credit Agreement and in each other
Transaction Document to which it is a party, including, without limitation the
covenants set forth in Sections 9.3(a), 9.3(b) and 9.4(a), 9.4(b) and
9.4(c), and Sections A through F above show the calculations thereof in
reasonable detail.


 


 


	
  STOLT-NIELSEN S.A.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date: