exv10w19





Exhibit 10.19





 

 






ASSIGNMENT, ASSUMPTION, AMENDMENT AND RESTATEMENT OF

LOAN AGREEMENT

PROVIDING FOR A

US$85,000,000

SUBORDINATED SECURED CREDIT FACILITY




BY AND AMONG




BOURBON CAPITAL U.S.A., INC.,

as Assignor,




RIGDON MARINE CORPORATION,

as Borrower,




the Banks and Financial Institutions

identified on Schedule 1,

as Lenders,




AND




DVB BANK NV,

as Facility Agent and Security Trustee,




 

 






as of July 1, 2008





 









 








CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	1.	 	DEFINITIONS	 	 	2	 
	 
	 	1.1	 	Specific Definitions	 	 	2	 
	 
	 	1.2	 	Computation of Time Periods; Other Definitional Provisions	 	 	12	 
	 
	 	1.3	 	Accounting Terms	 	 	13	 
	 
	 	1.4	 	Certain Matters Regarding Materiality	 	 	13	 
	 
	 	1.5	 	Forms of Documents	 	 	13	 
	 
	 	1.6	 	General Conditions	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	1A	 	ASSIGNMENT AND ASSUMPTION	 	 	13	 
	 
	 	1A.1	 	Assignment	 	 	13	 
	 
	 	1A.2	 	Assumption	 	 	13	 
	 
	 	1A.3	 	Payment	 	 	14	 
	 
	 	1A.4	 	Assignor Warranty	 	 	14	 
	 
	 	1A.5	 	Other Actions	 	 	14	 
	 
	 	1A.6	 	Release of Assignor	 	 	15	 
	 
	 	1A.7	 	Evidence of Authority	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	2.	 	REPRESENTATIONS AND WARRANTIES	 	 	15	 
	 
	 	2.1	 	Representations and Warranties	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	3.	 	THE ADVANCES	 	 	19	 
	 
	 	3.1	 	Availability	 	 	20	 
	 
	 	3.4	 	Effect of Drawdown Notice	 	 	20	 
	 
	 	3.5	 	Notation of Advances	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	4.	 	CONDITIONS	 	 	20	 
	 
	 	4.1	 	Conditions Precedent to the Effectiveness of this Agreement	 	 	20	 
	 
	 	4.2	 	Further Conditions Precedent	 	 	22	 
	 
	 	4.3	 	Breakfunding Costs	 	 	23	 
	 
	 	4.4	 	Satisfaction after Drawdown	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	5.	 	REPAYMENT AND PREPAYMENT	 	 	24	 
	 
	 	5.1	 	Repayment	 	 	24	 
	 
	 	5.2	 	Voluntary Prepayment; No Re-borrowing	 	 	24	 
	 
	 	5.3	 	Mandatory Prepayment; Sale or Loss of Vessel	 	 	24	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	6.	 	INTEREST AND RATE	 	 	24	 
	 
	 	6.1	 	Applicable Rate	 	 	24	 
	 
	 	6.2	 	Default Rate	 	 	25	 
	 
	 	6.3	 	Interest Periods	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	7.	 	PAYMENTS	 	 	25	 
	 
	 	7.1	 	Place of Payments, No Set Off	 	 	25	 
	 
	 	7.2	 	Tax Credits	 	 	26	 
	 
	 	7.3	 	Sharing of Setoffs	 	 	26	 
	 
	 	7.4	 	Computations; Banking Days	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	8.	 	EVENTS OF DEFAULT	 	 	27	 
	 
	 	8.1	 	Events of Default	 	 	27	 
	 
	 	8.2	 	Indemnification	 	 	29	 
	 
	 	8.3	 	Application of Moneys	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	9.	 	COVENANTS	 	 	30	 
	 
	 	9.1	 	Affirmative Covenants	 	 	30	 
	 
	 	9.2	 	Negative Covenants	 	 	33	 
	 
	 	9.3	 	[Intentionally Omitted.]	 	 	34	 
	 
	 	9.4	 	Asset Maintenance	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	10.	 	ASSIGNMENT	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	11.	 	ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC	 	 	35	 
	 
	 	11.1	 	Illegality	 	 	35	 
	 
	 	11.2	 	Increased Costs	 	 	35	 
	 
	 	11.3	 	Replacement of Lender or Participant	 	 	36	 
	 
	 	11.4	 	Nonavailability of Funds	 	 	37	 
	 
	 	11.5	 	Lender’s Certificate Conclusive	 	 	37	 
	 
	 	11.6	 	Compensation for Losses	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	12.	 	CURRENCY INDEMNITY	 	 	37	 
	 
	 	12.1	 	Currency Conversion	 	 	37	 
	 
	 	12.2	 	Change in Exchange Rate	 	 	37	 
	 
	 	12.3	 	Additional Debt Due	 	 	38	 
	 
	 	12.4	 	Rate of Exchange	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	13.	 	FEES AND EXPENSES	 	 	38	 
	 
	 	13.1	 	Fees	 	 	38	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	13.2	 	Expenses	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	14.	 	APPLICABLE LAW, JURISDICTION AND WAIVER	 	 	38	 
	 
	 	14.1	 	Applicable Law	 	 	38	 
	 
	 	14.2	 	Jurisdiction	 	 	38	 
	 
	 	14.3	 	WAIVER OF JURY TRIAL	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	15.	 	THE AGENTS	 	 	39	 
	 
	 	15.1	 	Appointment of Agents	 	 	39	 
	 
	 	15.2	 	Security Trustee as Trustee	 	 	39	 
	 
	 	15.3	 	Distribution of Payments	 	 	39	 
	 
	 	15.4	 	Holder of Interest in Note	 	 	40	 
	 
	 	15.5	 	No Duty to Examine, Etc	 	 	40	 
	 
	 	15.6	 	Agents as Lenders	 	 	40	 
	 
	 	15.7	 	Acts of the Agents	 	 	40	 
	 
	 	15.8	 	Certain Amendments	 	 	41	 
	 
	 	15.9	 	Assumption re Event of Default	 	 	41	 
	 
	 	15.10	 	Limitations of Liability	 	 	41	 
	 
	 	15.11	 	Indemnification of the Agents	 	 	42	 
	 
	 	15.12	 	Consultation with Counsel	 	 	42	 
	 
	 	15.13	 	Resignation	 	 	42	 
	 
	 	15.14	 	Representations of Lenders	 	 	42	 
	 
	 	15.15	 	Notification of Event of Default	 	 	43	 
	 
	 	15.16	 	No Agency or Trusteeship if DVB only Lender	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	16.	 	NOTICES AND DEMANDS	 	 	43	 
	 
	 	16.1	 	Notices	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	17.	 	MISCELLANEOUS	 	 	44	 
	 
	 	17.1	 	Time of Essence	 	 	44	 
	 
	 	17.2	 	Unenforceable, etc., Provisions — Effect	 	 	44	 
	 
	 	17.3	 	References	 	 	44	 
	 
	 	17.4	 	Further Assurances	 	 	44	 
	 
	 	17.5	 	[Intentionally Omitted.]	 	 	44	 
	 
	 	17.6	 	Entire Agreement; Amendments	 	 	44	 
	 
	 	17.7	 	Indemnification	 	 	44	 
	 
	 	17.8	 	Headings	 	 	45	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	PAGE	 
	 
	 	 	 	 	 	 	 	 
	 
	 	17.9	 	Customer Identification	 	 	45	 






SCHEDULE




	 	 	 
	1

	 	The Lenders and the Initial Commitments
	2

	 	The Vessels
	3

	 	Disclosure
	4

	 	Approved Ship Brokers
	5

	 	General Conditions






EXHIBITS




	 	 	 
	A

	 	Form of Note
	B1

	 	Form of Mortgage Assignment
	B2

	 	Form of Mortgage Amendment
	C

	 	Form of Guaranty
	D

	 	Form of Assignment and Assumption Agreement
	E

	 	Form of Drawdown Notice
	F

	 	Form of Interest Notice
	G

	 	Form of Subordination Agreement







 











 





ASSIGNMENT, ASSUMPTION, AMENDMENT AND RESTATEMENT OF 

LOAN AGREEMENT



THIS ASSIGNMENT, ASSUMPTION, AMENDMENT AND RESTATEMENT OF LOAN AGREEMENT (this “Agreement”) is made
as of the 1st day of July, 2008, by and among (1) BOURBON CAPITAL U.S.A., INC., a corporation
organized under the laws of the State of Delaware (the “Assignor”), (2) RIGDON MARINE CORPORATION,
a corporation incorporated under the laws of the State of Delaware (the “Borrower”), (3) the banks
and financial institutions listed on Schedule 1, as lenders (together with any bank or financial
institution which becomes a Lender pursuant to Article 10, the “Lenders”), and (4) DVB BANK NV
(“DVB”), as facility agent for the Lenders (in such capacity, the “Facility Agent”) and security
trustee for the Lenders ( in such capacity, the “Security Trustee” and together with the Lenders
and the Facility Agent, collectively, the “Creditors”).




WITNESSETH THAT:




               WHEREAS, pursuant to that certain Loan Agreement dated December 28, 2005 (the “Original Loan
Agreement”) by and between the Assignor and the Borrower, the Assignor provided the Borrower with a
loan facility in an aggregate principal amount of up to Ninety Million Dollars (the “Existing
Facility”), to (i) partially finance the delivery installments and Acquisition Costs of various
vessels constructed and delivered or currently under construction and to be delivered to the
Borrower pursuant to the Building Contract and (ii) re-finance certain then existing indebtedness
with respect to certain vessels owned by the Borrower;



               WHEREAS, pursuant to the Original Loan Agreement the Borrower delivered to the Assignor: (i)
the Original Notes (as herein defined); (ii) the Original Mortgage (as herein defined); and (iii)
the original UCC Financing Statements;



               WHERAS, pursuant to the request of the Assignor and the Borrower, the Lenders are willing,
subject to the terms and conditions hereof, to assume the rights and obligations of the Assignor
under, in and to the Original Loan Agreement;



               WHEREAS, the Facility Agent and the Security Trustee have agreed to serve in such capacities
under the terms of this Agreement;



               WHEREAS, in connection with the assumption by the Lenders of the Assignor’s rights and
obligations under the Original Loan Agreement, the Borrower and the Creditors desire to amend and
restate the provisions of the Original Loan Agreement in accordance with the terms and conditions
set forth herein;



               WHEREAS, as security for the performance by the Borrower of its obligations hereunder, the
Borrower has agreed to grant to the Creditors and to procure the provision to the Creditors of the
collateral as referred to herein;



               WHEREAS, the Borrower acknowledges and agrees that (i) this Agreement represents, among other
things, an amendment, restatement, renewal, extension, consolidation and modification of the Loan
(as such term is defined in the Original Loan Agreement) made under the Original Loan Agreement and
certain of the documents that were executed as security for the Loan and the Borrower’s obligations
in connection therewith (including, without limitation, the Original Mortgage, the “Original
Security Documents”); (ii) the parties hereto intend that this Agreement and the Security Documents
(as such term is hereinafter defined) shall secure, without interruption or



 









 




impairment of any kind, all existing indebtedness of the Borrower under the Original Loan
Agreement and the Original Security Documents as so assigned, assumed, amended, restated,
restructured, renewed, extended, consolidated and modified hereunder and by the Security Documents
executed and delivered in connection herewith; (iii) all liens evidenced by the Original Loan
Agreement and the Original Security Documents, to the extent assigned, assumed, amended, restated,
restructured, renewed, extended, consolidated and modified hereunder, are hereby ratified,
confirmed and continued; and (iv) this Agreement and the Security Documents are intended to
restructure, restate, renew, extend, consolidate, amend and modify the Original Loan Agreement and
the Original Security Documents; and




               WHEREAS, the parties hereto intend that (i) the provisions of the Original Loan Agreement and
the Original Security Documents, to the extent assigned, assumed, restructured, restated, renewed,
extended, consolidated, amended and modified hereby, are hereby superseded and replaced by the
provisions hereof and the Security Documents; and (ii) the Note (as hereinafter defined) amends,
renews, extends, modifies, replaces, is substituted for and supersedes in its entirety, but does
not extinguish the existing indebtedness arising under, the Original Notes, nor does this
transaction constitute a novation of the Original Loan Agreement and the Original Security
Documents;



               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 Specific Definitions. In this Agreement the words and expressions specified below
shall, except where the context otherwise requires, have the meanings attributed to them below:




	 	 	 
	“Acceptable Accounting Firm”

	 	means UHY Mann Frankfort Stein & Lipp of 12 Greenway
Plaza, Suite 1202, Houston, Texas, or such other
recognized international accounting firm as shall be
approved by the Agent, such approval not to be
unreasonably withheld;
	 
	 	 
	“Acquisition Cost”

	 	means the total purchase price payable to or for the
account of the Borrower to acquire a Vessel, as
reflected, on (i) the invoices of Builder under the
Building Contract(s) with Builder governing the
construction of the Vessel, (ii) invoices from third
party suppliers whose materials have been incorporated
into the Vessel and (iii) calculation of accrued and
unpaid interest during the construction period of the
Vessel;
	 
	 	 
	“Advance(s)”

	 	means any amount advanced to the Borrower with respect to
the Facility or (as the context may require) the
aggregate amount of all such Advances for the time being
outstanding;
	 
	 	 
	“Affiliate”

	 	means with respect to any Person, any other Person






2









 






	 	 	 
	 

	 	directly or indirectly controlled by or under common
control with such Person. For the purposes of this
definition, “control” (including, with correlative
meanings, the terms “controlled by” and “under common
control with”) as applied to any Person means the
possession directly or indirectly of the power to direct
or cause the direction of the management and policies of
that Person whether through ownership of voting
securities or by contract or otherwise;
	 
	 	 
	“Agents”

	 	means each of the Facility Agent and the Security Trustee;
	 
	 	 
	“Agreement”

	 	means this agreement, as the same shall be amended,
modified or supplemented from time to time;
	 
	 	 
	“Amendment Request Letter”

	 	means that certain letter request dated June 17, 2008
with respect to certain amendments to this Agreement and
the Senior Credit Agreement given by the Borrower and the
Guarantor and as consented to by the Senior Creditors;
	 
	 	 
	“Applicable Margin”

	 	means 2.0% per annum;
	 
	 	 
	“Applicable Rate”

	 	means any rate of interest applicable to the Facility
from time to time pursuant to Section 6.1;
	 
	 	 
	“Assigned Commitment”

	 	shall have the meaning ascribed thereto in Section 1A.1;
	 
	 	 
	“Assigned Payment”

	 	means, with respect to any Lender, that amount set forth
opposite such Lender’s name under the column entitled
“Assigned Payment” in Schedule 1 to this Agreement;
	 
	 	 
	“Assigned Percentage”

	 	means, with respect to any Lender, that percentage amount
set forth opposite such Lender’s name under the column
entitled “Assigned Percentage” in Schedule 1 to this
Agreement;
	 
	 	 
	“Assignment and Assumption

	 	means any Assignment and Assumption Agreement executed
	 
	 	 
	Agreement(s)”

	 	pursuant to Section 10 substantially in the form set out
in Exhibit D;
	 
	 	 
	“Assignor”

	 	shall have the meaning ascribed thereto in the preamble
to this Agreement;
	 
	 	 
	“Assignor’s Outstanding Amount”

	 	shall have the meaning ascribed thereto in Section 1A.1;
	 
	 	 
	“Banking Day(s)”

	 	means day(s) on which banks are open for the transaction
of business in London, England, New York, New York, and
Rotterdam, The Netherlands;






3









 






	 	 	 
	 
	 	 
	“Borrower”

	 	shall have the meaning ascribed thereto in the preamble;
	 
	 	 
	“Builder”

	 	means Bollinger Shipyards Lockport, L.L.C.;
	 
	 	 
	“Building Contract(s) ”

	 	means that certain Vessel Construction Contract for the
Construction of Ten (10) 1,575 D.W.T. platform supply
vessels (Hull Nos. 521, 522, 523, 524, 525, 526, 527,
528, 529, and 530) dated November 9, 2005 between Builder
and RMLLC as the same will be from time to time assigned
to the Borrower upon the delivery of each GPA 654 Vessel
thereunder;
	 
	 	 
	“Capital Lease”

	 	means any lease of property which in accordance with GAAP
would be capitalized on the lessee’s balance sheet;
	 
	 	 
	“Change of Control”

	 	means (a) any “person” (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of more
than 25% of the total voting power of the Borrower, or
(b) the Board of Directors of the Borrower ceases to
consist of a majority of the directors existing on the
date hereof or directors nominated by GLF Management or
any other Subsidiary of Guarantor who is the shareholder
of the Borrower;
	 
	 	 
	“Classification Society”

	 	means a member of the International Association of
Classification Societies with whom the Vessels are
entered and who conducted periodic physical surveys
and/or inspections of the Vessels;
	 
	 	 
	“Code”

	 	means the Internal Revenue Code of 1986, as amended, and
any successor statute and regulation promulgated
thereunder;
	 
	 	 
	“Collateral”

	 	means all property or other assets, real or personal,
tangible or intangible, whether now owned or hereafter
acquired in which any Agent or any Lender has been
granted a security interest pursuant to a Security
Document;
	 
	 	 
	“Commitment(s)”

	 	means in relation to a Lender, the portion of the
Facility set out opposite its name in Schedule 1 or, as
the case may be, in any relevant Assignment and
Assumption Agreement, as such amount shall be reduced
from time to time pursuant to Section 5;
	 
	 	 
	“Default Rate”

	 	shall have the meaning ascribed thereto in Section 6.2;






4









 






	 	 	 
	 
	 	 
	“DOC”

	 	means a document of compliance issued to an Operator in
accordance with rule 13 of the ISM Code;
	 
	 	 
	“Dollars” and the sign “$”

	 	means the legal currency, at any relevant time hereunder,
of the United States of America and, in relation to all
payments hereunder, in same day funds settled through the
New York Clearing House Interbank Payments System (or
such other Dollar funds as may be determined by the
Facility Agent to be customary for the settlement in New
York City of banking transactions of the type herein
involved);
	 
	 	 
	“Drawdown Date(s)”

	 	means the dates, each being a Banking Day, upon which the
Borrower has requested that an Advance be made available
to the Borrower, and such Advance is made, as provided in
Section 3;
	 
	 	 
	“Drawdown Notice”

	 	shall have the meaning ascribed thereto in Section 3.3;
	 
	 	 
	“DVB”

	 	shall have the meaning ascribed thereto in the Preamble;
	 
	 	 
	“Environmental Affiliate(s)”

	 	means any person or entity, the liability of which for
Environmental Claims the Borrower may have assumed by
contract or operation of law;
	 
	 	 
	“Environmental Approval(s)”

	 	shall have the meaning ascribed thereto in Section 2.1(n);
	 
	 	 
	“Environmental Claim(s)”

	 	shall have the meaning ascribed thereto in Section 2.1(n);
	 
	 	 
	“Environmental Law(s)”

	 	shall have the meaning ascribed thereto in Section 2.1(n);
	 
	 	 
	“ERISA”

	 	means the Employment Retirement Income Security Act of
1974, as amended;
	 
	 	 
	“ERISA Affiliate”

	 	means a trade or business (whether or not incorporated)
which is under common control with the Borrower within
the meaning of Sections 414(b), (c), (m) or (o) of the
Code;
	 
	 	 
	“Event(s) of Default”

	 	means any of the events set out in Section 8.1;
	 
	 	 
	“Exchange Act”

	 	shall mean the Securities and Exchange Act of 1934, as
amended;
	 
	 	 
	“Facility”

	 	means the credit facility to be made available by the
Lenders to the Borrower hereunder, in two tranches,
pursuant to Section 3 in the maximum aggregate principal
amount equal to Eighty Five Million Dollars
($85,000,000);






5









 






	 	 	 
	 
	 	 
	“Facility Agent”

	 	shall have the meaning attributed thereto in the preamble;
	 
	 	 
	“Fair Market Value”

	 	means, in respect of any vessel, a charter-free appraisal
on an “as is”, “willing seller, willing buyer” basis of
such vessel from a ship broker listed in Schedule 4 or
such other independent ship broker approved by the
Majority Lenders, no such appraisal to be dated more than
thirty (30) days prior to the date on which such
appraisal is required pursuant to this Agreement;
	 
	 	 
	“Final Payment Date”

	 	means June 30, 2010;
	 
	 	 
	“Funded Debt”

	 	means all the liabilities for borrowed money, obligations
in respect of any Capital Lease, and any guarantee of the
foregoing, but shall exclude (i) such obligations and
guarantees if owed or guaranteed by a Subsidiary to the
Borrower or another Subsidiary or by the Borrower to a
Subsidiary, (ii) any common stock of the Borrower or a
Subsidiary and (iii) the debt evidenced by this
Agreement;
	 
	 	 
	“GAAP”

	 	shall have the meaning ascribed thereto in Section 1.3;
	 
	 	 
	“General Conditions”

	 	means the General Banking conditions of DVB in the form
attached hereto as Schedule 5;
	 
	 	 
	“GLF Management”

	 	means GulfMark Management, Inc., a Delaware corporation;
	 
	 	 
	“GPA 654 Vessels”

	 	means those Vessels listed on Schedule 2 under the
heading GPA 654 Vessels;
	 
	 	 
	“Guarantor”

	 	means GulfMark Offshore, Inc., a Delaware corporation;
	 
	 	 
	“Guaranty”

	 	means the guaranty to be executed by the Guarantor in
respect of the obligations of the Borrower under and in
connection with this Agreement and the Note in favor of
the Security Trustee pursuant to Section 3.1(b),
substantially in the form of Exhibit C;
	 
	 	 
	“Indemnitee”

	 	shall have the meaning ascribed thereto in Section 17.7;
	 
	 	 
	“Interest Notice”

	 	means a notice from the Borrower to the Facility Agent
specifying the duration of any relevant Interest Period,
each substantially in the form of Exhibit F;
	 
	 	 
	“Interest Payment Date”

	 	means each date on which accrued interest on the Facility
shall be payable pursuant to Section 6.4;






6









 






	 	 	 
	 
	 	 
	“Interest Period(s)”

	 	means period(s) of one, three, six or twelve months as
selected by the Borrower; provided, however, that the
Interest Period for any portion of the Facility which is
subject to an Interest Rate Agreement shall be one month;
	 
	 	 
	“Interest Rate Agreements”

	 	means any interest rate protection agreement, interest
rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate
hedge agreement or other similar agreement or arrangement
entered into between the Borrower, and the Facility
Agent, which is designed to protect the Borrower against
fluctuations in interest rates applicable under this
Agreement, to or under which the Borrower is a party or a
beneficiary on the date of this Agreement or becomes a
party or a beneficiary hereafter; provided, however, that
there shall be no more than three Interest Rate
Agreements in connection with this Facility;
	 
	 	 
	“ISPS Code”

	 	means the International Ship and Port Facility Security
Code adopted by the International Maritime Organization
(as the same may be amended from time to time);
	 
	 	 
	“ISSC”

	 	means a valid and current International Ship Security
Certificate issued under the ISPS Code;
	 
	 	 
	“ISM Code”

	 	means the International Safety Management Code for the
Safe Operating of Ships and for Pollution Prevention
constituted pursuant to Resolution A.741(18) of the
International Maritime Organization and incorporated into
the Safety of Life at Sea Convention and includes any
amendments or extensions thereto and any regulation
issued pursuant thereto;
	 
	 	 
	“Jones Act Eligible”

	 	means a vessel which is documented under the laws of the
United States with a coastwise endorsement and is
qualified for trade between U.S. ports (i.e. coastwise
trade) under the Merchant Marine Act of 1920, as amended
(and codified as amended at 46 U.S.C. App. § 883), which
is also known as the Jones Act;
	 
	 	 
	“Lender(s)”

	 	shall have the meaning ascribed thereto in the preamble;
	 
	 	 
	“LIBOR”

	 	means the rate for deposits of Dollars for a period
equivalent to the relevant Interest Period at or about
11:00 a.m. (London time) on the second London Banking Day
before the first day of such period as displayed on
Telerate page 3750 (British Bankers’ Association Interest






7









 






	 	 	 
	 

	 	Settlement Rates) (or such other page as may replace such
page 3750 on such system or on any other system of the
information vendor for the time being designated by the
British Bankers’ Association to calculate the BBA
Interest Settlement Rate (as defined in the British
Bankers’ Association’s Recommended Terms and Conditions
(“BBAIRS” terms) dated August 1985)), provided that if on
such date no such rate is so displayed for the relevant
Interest Period, LIBOR for such period shall be the
arithmetic mean (rounded upward if necessary to four
decimal places) of the rate offered by DVB for deposits
of Dollars in an amount approximately equal to the amount
in relation to which LIBOR is to be determined for a
period equivalent to the relevant Interest Period to
prime banks in the London Interbank Market at or about
11:00 a.m. (London time) on the second Banking Day before
the first day of such period;
	 
	 	 
	“Lien”

	 	means, as to any entity, any mortgage, lien, pledge,
adverse claim, charge, security interest or other
encumbrance in or on, or interest or title of any vendor,
lessor, lender or other secured party to or of the entity
under conditional sale or other title retention agreement
or Capital Lease with respect to, any property or asset
of the entity;
	 
	 	 
	“Liquidation Market Value”

	 	means the net amount of the Fair Market Value of the
Vessel(s) less the amount to discharge all the
obligations owed for the related Vessel(s) to the Senior
Creditors under the Senior Credit Agreement;
	 
	 	 
	“Majority Lenders”

	 	at any time means Lenders holding an aggregate of more
than 50% of the Advances then outstanding;
	 
	 	 
	“Material Adverse Effect”

	 	shall mean a material adverse effect on (i) the ability
of the Borrower to repay the Advances or perform any of
its obligations hereunder or under the Note, (ii) the
ability of the Borrower to perform its obligations under
any Security Documents or (iii) the business, property,
assets, liabilities, operations, condition (financial or
otherwise) or prospects of the Borrower taken as a whole;
	 
	 	 
	“Materials of Environmental
Concern”

	 	shall have the meaning ascribed thereto in Section 2.1(o);
	 
	 	 
	“Mortgage”

	 	means the Original Mortgage as assigned to the Security
Trustee by the Mortgage Assignment and as amended by the
Mortgage Amendment, and as same shall be amended






8









 






	 	 	 
	 

	 	or supplemented to cover any GPA 654 Vessels;
	 
	 	 
	“Mortgage Amendment”

	 	means that certain Amendment No. 1 to the Original
Mortgage (as assigned to the Security Trustee pursuant to
the Mortgage Assignment) to be executed by the Borrower
and the Security Trustee which amends the Original
Mortgage to account for changes contemplated by this
Agreement substantially in the form set out Exhibit B2;
	 
	 	 
	“Mortgage Assignment”

	 	means that certain Assignment of Mortgage with respect to
the Original Mortgage to be executed by the Assignor, the
Borrower and the Security Trustee which assigns the
Assignor’s interest in and to the Original Mortgage to
the Security Trustee substantially in the form set out
Exhibit B1;
	 
	 	 
	“MTSA”

	 	means the Maritime and Transportation Security Act, 2002,
as amended, inter alia, by Public Law 107-295;
	 
	 	 
	“Multiemployer Plan”

	 	means, at any time, a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any
ERISA Affiliate is making or accruing an obligation to
make contributions or has within any of the three
preceding plan years made or accrued an obligation to
make contributions;
	 
	 	 
	“Multiple Employer Plan”

	 	means, at any time, an employee benefit plan, other than
a Multiemployer Plan, subject to Title IV or ERISA, to
which the Borrower or any ERISA Affiliate, and one or
more employers other than the Borrower or an ERISA
Affiliate, is making or accruing an obligation to make
contributions or, in the event that any such plan has
been terminated, to which the Borrower or any ERISA
Affiliate made or accrued an obligation to make
contributions during any of the five plan years preceding
the date of termination of such plan;
	 
	 	 
	“Note”

	 	means the promissory note to be executed by the Borrower
to the order of the Facility Agent pursuant to Section
4.1(b), to evidence the Facility substantially in the
form set out Exhibit A;
	 
	 	 
	“Obligations”

	 	means all obligations, indebtedness and liabilities of
Borrower to the Creditors, now existing or hereafter
arising, whether direct, indirect, related, unrelated,
fixed, contingent, liquidated, un-liquidated, joint,
several or joint and several, including, without
limitation, the obligations, indebtedness, and
liabilities of the Borrower under this Agreement, the
Note and the Security Documents, and all interest
accruing thereon and all reasonable attorneys’ fees






9









 






	 	 	 
	 

	 	and other expenses incurred in the enforcement or collection
thereof;
	 
	 	 
	“Operator”

	 	means, in respect of any Vessel, the Person who is
concerned with the operation of such Vessel and falls
within the definition of “Company” set out in rule 1.1.2
of the ISM Code;
	 
	 	 
	“Original Notes”

	 	means those certain promissory notes executed by the
Borrower in favor of the Assignor in connection with the
Original Loan Agreement;
	 
	 	 
	“Original Mortgage”

	 	means that certain second preferred United States fleet
mortgage on certain of the Vessels executed by the
Borrower in favor of the Assignor in connection with the
Original Loan Agreement;
	 
	 	 
	“Original Security Document(s)”

	 	shall have the meaning ascribed thereto in the preamble;
	 
	 	 
	“PBGC”

	 	means the Pension Benefit Guaranty Corporation;
	 
	 	 
	“Person”

	 	means any individual, sole proprietorship, corporation,
partnership (general or limited), limited liability
company, business trust, bank, trust company, joint
venture, association, joint stock company, trust or other
unincorporated organization, whether or not a legal
entity, or any government or agency or political
subdivision thereof;
	 
	 	 
	“Plan”

	 	means any employee benefit plan (other than a
Multiemployer Plan or a Multiple Employer Plan) covered
by Title IV of ERISA;
	 
	 	 
	“Pre-existing Vessels”

	 	means each of those Vessels which shall have been
purchased by and delivered to the Borrower prior to the
date of this Agreement and listed on Schedule 2 under the
heading Pre-existing Vessels;
	 
	 	 
	“Proceeding”

	 	shall have the meaning ascribed thereto in Section 8.1(g);
	 
	 	 
	“Property”

	 	means any interest in any kind of property or asset,
whether real, personal or mixed, tangible or intangible;
	 
	 	 
	“RMLLC”

	 	means Rigdon Marine Holdings, L.L.C., a limited liability
company organized and existing under the laws of the
State of Louisiana, which will be dissolved and its
assets assigned to and its liabilities assumed by GLF
Management;






10









 






	 	 	 
	 
	 	 
	“Security Document(s)”

	 	means the Guaranty, the Mortgages and any other documents
that may be executed as security for the Facility and the
Borrower’s obligations in connection therewith;
	 
	 	 
	“Security Party(ies)”

	 	means the Borrower and the Guarantor, or either of them,
as the context may require;
	 
	 	 
	“Security Trustee”

	 	shall have the meaning attributed thereto in the preamble;
	 
	 	 
	“SMC”

	 	means the safety management certificate issued in respect
of a Vessel in accordance with rule 13 of the ISM code;
	 
	 	 
	“Senior Credit Agreement”

	 	means that certain Senior Secured Credit Facility
Agreement dated as of December 28, 2005 by and among the
Borrower, as borrower, the Senior Lenders, as lenders,
the Senior Facility Agent and the Senior Security
Trustee, as such agreement has been or may be amended
from time to time;
	 
	 	 
	“Senior Creditors”

	 	means, collectively, the Senior Lenders, the Senior
Facility Agent and the Senior Security Trustee;
	 
	 	 
	“Senior Facility Agent”

	 	means DVB Bank, N.V. in its capacity as facility agent
for the lenders under the Senior Credit Agreement;
	 
	 	 
	“Senior Lenders”

	 	means the banks and financial institutions listed on
Schedule 1 to the Senior Credit Agreement and such other
bank or financial institution as becomes a party to the
Senior Credit Agreement;
	 
	 	 
	“Senior Mortgage”

	 	means the first preferred United States ship or fleet
mortgage(s) on the Vessels in favor of the Senior
Security Trustee as same shall be amended from time to
time;
	 
	 	 
	“Senior Security Trustee”

	 	means DVB Bank, N.V. in its capacity as security trustee
for the lenders under the Senior Credit Agreement;
	 
	 	 
	“Subordination Agreement”

	 	means the subordination agreement to be entered into by
the Facility Agent on behalf of the Lenders and the
Senior Facility Agent pursuant to Section 4.1(h),
substantially in the form of Exhibit G, as amended from
time to time by and among the parties thereto;
	 
	 	 
	“Subsidiary(ies)”

	 	means, with respect to any Person, any business entity of
which more than 50% of the outstanding voting stock or
other equity interest is owned directly or indirectly by
such Person and/or one or more other Subsidiaries of such
Person;






11









 






	 	 	 
	 
	 	 
	“Taxes”

	 	means any present or future income or other taxes,
levies, duties, charges, fees, deductions or withholdings
of any nature now or hereafter imposed, levied,
collected, withheld or assessed by any taxing authority
whatsoever, except for taxes on or measured by the
overall net income of each Lender imposed by its
jurisdiction of incorporation or applicable lending
office, the United States of America, the State or City
of New York or any governmental subdivision or taxing
authority of any thereof or by any other taxing authority
having jurisdiction over such Lender (unless such
jurisdiction is asserted by reason of the activities of
the Borrower or any Affiliate thereof);
	 
	 	 
	“Termination Event”

	 	means (i) a “reportable event,” as defined in Section 403
of ERISA (other than a “reportable event” not subject to
the provision for 30-day notice to the PBGC), (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a
Multiemployer Plan during a plan year in which it was a
“substantial employer,” as defined in Section 4001(a)(2)
of ERISA, or the incurrence of liability by the Borrower
or any ERISA Affiliate under Section 4064 of ERISA upon
the termination of a Multiple Employer Plan, (iii) the
filing of a notice of intent to terminate a Plan under
Section 4041of ERISA or the treatment of a Multiemployer
Plan amendment as a termination under Section 4041A of
ERISA, (iv) the institution of proceedings to terminate a
Plan or a Multiemployer Plan, or (v) any other event or
condition which might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan or Multiemployer
Plan;
	 
	 	 
	“Total Loss”

	 	shall have the meaning ascribed thereto in the Mortgages;
	 
	 	 
	“Tranche A”

	 	means the tranche to be made available by the Lenders to
the Borrower hereunder in a single advance pursuant to
Section 3.1(a) in the maximum aggregate principal amount
of Forty Million Dollars ($40,000,000);
	 
	 	 
	“Tranche B”

	 	means the tranche to be made available by the Lenders to
the Borrower hereunder in multiple advances pursuant to
Section 3.1(b) in the maximum aggregate principal amount
of Forty Five Million Dollars ($45,000,000);
	 
	 	 
	“Vessel(s)”

	 	each of the Vessels listed in Schedule 2, registered or
to be registered in the name of the Borrower as set forth
in such Schedule, but excluding any Vessel for which a
mandatory prepayment was made pursuant to section 5.3;
and






12









 






	 	 	 
	 
	 	 
	“Withdrawal Liability(ies)”

	 	shall have the meaning given to such term under Part 1 of
Subtitle E of Title IV of ERISA.






          1.2 Computation of Time Periods; Other Definitional Provisions. In this Agreement,
the Note 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 Note or such Security Document, as
applicable; references to agreements and other contractual instruments (including this Agreement,
the Note 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 Note 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 Note 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 the
Facility Agent or to the Lenders under this Agreement shall be prepared, in accordance with
generally accepted accounting principles for the United States (“GAAP”).




          1.4 Certain Matters Regarding Materiality. To the extent that any representation,
warranty, covenant or other undertaking of the Borrower 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 the Borrower 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.




          1.6 General Conditions. Certain matters governing banking relationships between DVB
in its capacities as Agent and Security Trustee and the Borrower are governed by the General
Conditions.




     1A ASSIGNMENT AND ASSUMPTION



          1A.1 Assignment. Prior to the effectiveness of this Agreement, the Assignor holds 100% of
the indebtedness and commitments under the Existing Facility, of which US$81,244,314.21 is
currently outstanding (the “Assignor’s Outstanding Amount”). The Assignor hereby sells, transfers
and assigns 100% of its interest in the Existing Facility representing US$81,244,314.21 (the
“Assigned Commitment”) under the Original Loan Agreement and an undivided share of its right, title
and interest in, to and under the Original Loan Agreement, the Original Notes and the Original



13









 






Security Documents to each of the Lenders in accordance with each such Lender’s Assigned Percentage
as set forth on Schedule 1 to this Agreement.




          1A.2 Assumption. Each of the Lenders hereby assumes, and shall be fully liable for, the
obligations of the Assignor in respect of the Assigned Commitment in accordance with its Assigned
Percentage (including, but not limited to, the obligation to advance its respective percentage of
any Advance as and when required) and undertakes to observe and perform all of the covenants and
obligations on the part of the Assignor under the Original Loan Agreement as amended and restated
by this Agreement and to be bound by all of the covenants, obligations, undertakings and provisions
contained in the Original Loan Agreement as amended and restated by this Agreement and shall
hereinafter be deemed a “Lender” for all purposes of the Original Loan Agreement (as amended and
restated by this Agreement), the Note, the Security Documents and any Assignment and Assumption
Agreement(s), the Dollar amount of each such Lender’s Commitment thereunder being as set forth on
Schedule 1 to this Agreement.




          1A.3 Payment. Simultaneously herewith, each Lender shall pay to the Assignor its
respective Assignor Payment as set forth on Schedule 1 to this Agreement, which amount constitutes
the product derived by multiplying (a) the Assignor’s Outstanding Amount, by (b) each such Lender’s
Assigned Percentage.




          1A.4 Assignor Representations and Warranties.




               (a) Obligations under Original Loan Agreement. The Assignor warrants that it has fully
performed all of its respective obligations under the Original Loan Agreement at all times up to
the date of this Agreement, that it is not in
violation or default of its obligations under the Original Loan Agreement, and that the
Original Loan Agreement is in full force and effect on and as of the date of this Agreement;



               (b) Due Organization and Power. The Assignor is duly formed and is validly existing 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 and to enter into and perform its obligations under
this Agreement and has complied with all statutory, regulatory and other requirements relative to
such business and this Agreement and the Original Loan Agreement;



               (c) 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, the Assignor to enter into and perform its obligations under this Agreement;



               (d) Binding Obligations. This Agreement constitutes or will, when executed and delivered,
constitute the legal, valid and binding obligations of the Assignor enforceable against the
Assignor in accordance with its 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;
and



               (e) No Violation. The execution and delivery of, and the performance of the provisions
of, this Agreement do not contravene any applicable law or regulation existing at the date hereof
or any contractual restriction binding on the Assignor or the certificate of incorporation or
by-laws thereof.




14











 





          1A.5 Other Actions.
In furtherance of the foregoing, the Assignor agrees to (i) return to the Borrower the
Original Notes marked “CANCELLED”, (ii) execute such documentation as may be necessary to transfer
its interest in and to the Original Security Documents to the Facility Agent or the Security
Trustee, as the case may be, including, without limitation, the Mortgage Assignment, and (iii)
file, or cooperate in the filing of, appropriate documents with the relevant filing authorities
amending the original Uniform Commercial Code financing statements filed in respect of the
Assignor.




          1A.6 Release of Assignor.
Upon satisfaction of the conditions set forth in this Article 1A, the Assignor shall be
released and discharged from further performance of the Original Loan Agreement or this Agreement
and ceases to have any right or benefit under the Original Loan Agreement, this Agreement, the
Original Note or the Original Security Documents.




          1A.7 Evidence of Authority.
The Assignor shall deliver to the Facility Agent the following documents in form and substance
satisfactory to the Facility Agent:





	 	(i)	 	copies, certified as true and complete by an
officer of the Assignor of the resolutions of the board of directors of
the Assignor evidencing approval of this Agreement 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 the Assignor of the certificate of incorporation and by-laws
or equivalent instruments thereof;
	 
	 	(iii)	 	certificate of the Secretary of the Assignor
certifying the incumbency of the officers thereof; and
	 
	 	(iv)	 	certificates of the jurisdiction of incorporation
of the Assignor as to the good standing thereof,





     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 make the Facility available, the Borrower hereby represents and warrants to the Agents
and the Lenders (which representations and warranties shall survive the execution and delivery of
this Agreement and the Note and the drawdown of each Advance hereunder) that:




               (a) Due Organization and Power.
The Borrower is duly formed and is validly existing 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 and to enter into and perform its obligations under this Agreement, the Note and the
Security Documents, and has complied with all statutory, regulatory and other requirements relative
to such business and such agreements;



               (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, the Borrower to enter
into and perform its obligations under this Agreement,



15









 




the Note and the Security Documents and, to
borrow, service and repay the Advances 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;




               (c) Binding Obligations.
This Agreement, the Note and the Security Documents constitute or will, when executed and
delivered, constitute the legal, valid and binding obligations of the Borrower enforceable against
the Borrower 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
Note and the Security Documents do not contravene any applicable law or regulation existing at the
date hereof or any contractual restriction binding on the Borrower or the certificate of
incorporation or by-laws (or equivalent instruments) thereof and that the proceeds of the Advances
shall be used by the Borrower exclusively for its own account or for the account ;



               (e) Litigation.
No action, suit or proceeding is pending or threatened against the Borrower before any court,
board of arbitration or administrative agency which could or might result in any Material Adverse
Effect;



               (f) No Default.
The Borrower is not in default under any material agreement by which it is bound, or is in
default in respect of any material financial commitment or obligation;



               (g) Vessels.
Upon the date of the making of each Advance each of the Vessels being delivered in connection
with such Advance or having been theretofore delivered in connection with this Agreement and each
of the Pre-existing Vessels:




	 	(i)	 	will be in the sole and absolute ownership of the
Borrower and duly registered in the Borrower’s name under United
States flag shall be Jones Act Eligible, unencumbered, save and except
for the Mortgage recorded against it and as permitted thereby, and the
Senior Mortgage;
	 
	 	(ii)	 	will be classed in the highest classification and
rating for vessels of the same age and type with the respective
Classification Society as set forth in Schedule 2 without any material
outstanding recommendations;
	 
	 	(iii)	 	will be operationally seaworthy and in every way
fit for its intended service;
	 
	 	(iv)	 	will be insured in accordance with the provisions
of the Mortgage recorded against it and the requirements thereof in
respect of such insurances will have been complied with and;
	 
	 	(v)	 	will be in compliance in all material respects
with all relevant laws, regulations and requirements (including
Environmental Laws), statutory or otherwise, as are applicable to (A)
vessels documented under the United States flag and that are Jones Act
Eligible and (B) vessels engaged in trade similar to that to be
performed by the Vessel,




16









 






	 	 	 	except where the failure to so comply would not
have a material adverse effect on the operation of the Vessel in its
intended trade or the financial condition of the Borrowers;





               (h) Insurance.
The Borrower and each Subsidiary has insured its properties and assets against such risks and
in such amounts as are customary for companies engaged in similar businesses;



               (i) Financial Information.
All financial statements, information and other data furnished by the Borrower to the Facility
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 Borrower’s financial
statements most recently delivered to the Facility 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 which are material in the aggregate except as disclosed in
such statements, information and data;



               (j) Tax Returns.
The Borrower and each Subsidiary has filed all material tax returns required to be filed
thereby and has paid all taxes payable thereby which have become due, other than those not yet
delinquent or the nonpayment of which would not have a Material Adverse Effect on the Borrower or
such Subsidiary and except for those taxes being contested in good faith and by appropriate
proceedings or other acts and for which adequate reserves shall have been set aside on its books;



               (k) 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
Plan maintained or contributed to by the Borrower 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 the Borrower 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, the Borrower has delivered to the
Facility Agent a list of all the employee benefit plans to which the Borrower 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);



               (l) Chief Executive Office.
The 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 Subsidiary are kept is, and will
continue to be, located at 10111 Richmond Ave., Suite 340, Houston, Texas, 77042;



               (m) Foreign Trade Control Regulations.
To the best of the Borrower’s knowledge, 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 Iranian
Transaction Regulations of the United States of America (Title 31, Code of Federal Regulations,
Chapter V, Part 560, as amended), or any of the



17









 




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);




               (n) Environmental Matters and Claims.
(a) Except as heretofore disclosed in writing to the Facility Agent, to the best of the
Borrower’s knowledge and belief, (i) the Borrower and each of its Subsidiaries is in compliance
with all applicable United States federal and state, local, foreign and international laws,
regulations, conventions and agreements relating to pollution prevention or protection of human
health or the environment (including, without limitation, ambient air, surface water, ground water,
navigable waters, waters of the contiguous zone, ocean waters and international waters), including,
without limitation, laws, regulations, conventions and agreements relating to (1) emissions,
discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous materials, oil, hazardous substances, petroleum and petroleum products and
by-products (“Materials of Environmental Concern”), or (2) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (“Environmental Laws”); (ii) the Borrower and each of its Subsidiaries has
all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other
authorizations required under applicable Environmental Laws (“Environmental Approvals”) and is in
compliance with all Environmental Approvals required to operate their business; (iii) none of the
Borrower or any Subsidiary thereof has received any notice of any claim, action, cause of action,
investigation or demand by any person, entity, enterprise or government, or any political
subdivision, intergovernmental body or agency, department or instrumentality thereof, alleging
potential liability for, or a requirement to incur, material investigator costs, cleanup costs,
response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural
resources damages, property damages, personal injuries, attorneys’ fees and expenses, or fines or
penalties, in each case arising out of, based on or resulting from (1) the presence, or release or
threat of release into the environment, of any Materials of Environmental Concern at any location,
whether or not owned by
such person, or (2) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law or Environmental Approval (“Environmental Claim”) (other than Environmental
Claims that have been fully and finally adjudicated or otherwise determined and all fines,
penalties and other costs, if any, payable by the Security Parties in respect thereof have been
paid in full or which are fully covered by insurance (including permitted deductibles)); and (iv)
there are no circumstances that may prevent or interfere with such full compliance in the future;
and (b) except as heretofore disclosed in writing to the Facility Agent there is no Environmental
Claim pending or threatened against the Borrower or any Subsidiary thereof and there are no past or
present actions, activities, circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge or disposal of any Materials of Environmental Concern,
that could form the basis of any Environmental Claim against such persons the adverse disposition
of which may result in a Material Adverse Effect;



               (o) Compliance with ISM Code, ISPS Code and MTSA.
Each Vessel complies or, when applicable, will comply and each Operator complies with the
requirements of the ISM Code, the ISPS Code and the MTSA including (but not limited to) the
maintenance and renewal of valid certificates pursuant thereto;



               (p) No Threatened Withdrawal of DOC, ISSC or SMC.
There is no threatened or actual withdrawal of any Operator’s DOC, ISSC or SMC or other
certification or documentation related to the ISM Code, the ISPS Code or otherwise required for the
operation of such vessels in respect of any of the Vessels;



18









 





               (q) Liens.
Other than as disclosed on Schedule 3 or in favor of the Senior Creditors, there are no liens
of any kind on any Property owned by the Borrower or any Subsidiary of the Borrower;



               (r) Funded Debt. Other than as disclosed in Schedule 3, the Borrower (and its Subsidiaries on a consolidated
basis) has no long-term Funded Debt and has not entered into any negotiations with respect to any
debt facilities other than those undertaken in connection with this Agreement; and



               (s) 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 Note.



     3. THE ADVANCES



          3.1 Availability.
Subject to the terms and conditions hereof, each of the Lenders agrees severally and not
jointly, in the proportion of its Commitment hereunder, to make the Facility available to the
Borrower in an aggregate amount of up to Eighty Five Million United States Dollars ($85,000,000).
The Facility is to be made available in two (2) tranches as follows:




               (a) term loan in the aggregate principal amount of up to $40,000,000 (“Tranche A”) solely for
the purpose of partially refinancing the Pre-existing Vessels; and



               (b) term loan facility in multiple Advances in the aggregate principal amount of up to
$45,000,000 (“Tranche B”), which Tranche B shall be available solely for the purpose of partially
financing the delivery installments and Acquisition Costs for each of the GPA 654 Vessels.



          3.2 Receipt of Funds.
Unless the Facility Agent shall have received notice from a Lender prior to the Drawdown Date
of any Advance that such Lender will not make available to the Facility Agent such Lender’s share
of such Advance, the Facility Agent may assume that such Lender has made such share available to
the Facility Agent on the date of such Advance in accordance this Section 3.2 and the Facility
Agent may, in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so made such share
available to the Facility Agent, such Lender and the Borrower (but without duplication) severally
agree to repay to the Facility Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Facility Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of (y) the LIBOR rate for overnight or weekend deposits plus the
Margin and (z) the interest rate applicable thereto pursuant to Section 6.1 and (ii) in the case of
such Lender, the LIBOR rate for overnight or weekend deposits. If such Lender shall repay to the
Facility Agent such corresponding amount, such amount so repaid shall constitute such Lender’s
Advance included in such Advance for purposes of this Agreement as of the date such Advance was
made. Nothing in this subsection (c) shall be deemed to relieve any Lender of its obligation to
make Advances to the extent provided in this Agreement. In the event that the Borrower is required
to repay an Advance to the Facility Agent pursuant to this Section 3.2 as between the Borrower and
the defaulting Lender, the liability for any breakfunding costs as described in Section 4.3 shall
be borne by the defaulting Lender. If the defaulting Lender has not paid any such breakage costs
upon demand by the Facility Agent therefor, the Borrower shall pay such breakage costs upon demand
by the Facility Agent and the Borrower shall be entitled to recover any such payment for
breakfunding costs made by the Borrower from the defaulting Lender.




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          3.3 Drawdown Notice.
The Borrower shall, at least three (3) Banking Days before a Drawdown Date, serve a notice (a
“Drawdown Notice”) substantially in the form of Exhibit E on the Facility Agent which notice shall
(a) be in writing addressed to the Facility Agent, (b) be effective on receipt by the Facility
Agent, (c) specify the amount and purpose of such Advance to be drawn, (d) specify the Banking Day
on which such Advance is to be drawn and, subject to the terms of Section 6.3 hereof, the Interest
Period, (e) specify the disbursement instructions, (f) attach evidence satisfactory to the Facility
Agent that the Borrower is in compliance with the covenants set forth in Section 9.3 and Section
9.4, as the case may be, (g) with respect to Tranche B, attach the delivery invoice under the
Building Contract and copies of invoices from third party suppliers whose materials have been
incorporated into the applicable Vessel to which such Advance relates, which such invoices shall
clearly identify the Building Contract(s) and the Vessel(s) to which it relates, and (h) be
irrevocable.




          3.4 Effect of Drawdown Notice.
Such Drawdown Notice shall be deemed to constitute a warranty by the Borrower (a) that the
representations and warranties stated in Section 2 (updated mutatis mutandis) are
true and correct on and as of the date of such 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.




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




     4. CONDITIONS



          4.1 Conditions Precedent to the Effectiveness of this Agreement.
The effectiveness of this Agreement and the obligation of the Lenders to make an Advance available
to the Borrower under this Agreement shall be expressly subject to the following conditions
precedent:




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




	 	(i)	 	copies, certified as true and complete by an
officer of each Security Party, of the resolutions of the board of
directors of such Security Party evidencing approval of this Agreement,
the Note and the Security Documents to which it is 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
the Security Parties as may be required by the Facility Agent),
approvals or consents with respect to this Agreement, the Note and the
Security Documents;




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	 	(iii)	 	copies, certified as true and complete by an
officer of each Security Party of the certificate of incorporation and
by-laws, certificate of formation and operating agreement, or equivalent
instruments thereof;
	 
	 	(iv)	 	certificate of the Secretary of each Security
Party certifying the incumbency of the directors and officers thereof
(setting out specimen signatures of any signatories to this Agreement,
the Note, the Security Documents to which it is a party and any other
documents to be executed by such Security Party);
	 
	 	(v)	 	certificates of the jurisdiction of incorporation
or formation, as the case may be, of the Borrower as to the good
standing thereof; and
	 
	 	(vi)	 	copies of passports, driver’s licenses or such
other proof of identity as the Agent may require in order to insure
compliance with all applicable “Know Your Customer” rules;





               (b) The Agreement, the Note and the Guaranty.
The Borrower shall have duly executed and delivered to the Facility Agent this Agreement and
the Note and the Guarantor shall have duly executed and delivered the Guaranty;



               (c) The Vessels.
The Facility Agent shall have received evidence satisfactory to it that each of the Vessels
then owned by the Borrower:




	 	(i)	 	is in the sole and absolute ownership of the
Borrower as set forth in Schedule 2 and duly registered in the
Borrower’s name under United States flag, Jones Act Eligible,
unencumbered, save and except for the Mortgage recorded against it and
as otherwise permitted thereby, and the Senior Mortgage;
	 
	 	(ii)	 	is classed in the highest classification and
rating for vessels of the same age and type with the respective
classification society as set forth in Schedule 2 without any material
outstanding recommendations;
	 
	 	(iii)	 	is operationally seaworthy and in every way fit
for its intended service; and
	 
	 	(iv)	 	is insured in accordance with the provisions of
the Mortgage recorded against it and the requirements thereof in respect
of such insurances have been complied with;





               (d) Mortgage Assignment and Mortgage Amendment.
Each of the Borrower and the Assignor shall have delivered to the Facility Agent the Mortgage
Assignment and the Borrower shall have duly executed and delivered to the Facility Agent the
Mortgage Amendment;



               (e) Environmental Claims.
The Facility Agent shall be satisfied that neither the Borrower nor any of its Subsidiaries is
subject to any Environmental Claim which could have a Material Adverse Effect;



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               (f) Fees.
The Facility Agent shall have received payment in full of all fees and expenses then due to
the Agents and/or the Lenders under this Agreement and the Amendment Request Letter;



               (g) Uniform Commercial Code Financing Statements.
The Facility Agent shall have received appropriate Uniform Commercial Code Financing
Statements for filing with the State of Delaware and in such other jurisdictions as the Facility
Agent may reasonably require;



               (h) [Intentionally Omitted.]



               (i) Building Contracts.
The Facility Agent having received copies of all Building Contracts, and contracts with third
party suppliers of material components of the GPA 654 Vessels certified as true and complete by an
officer of the Borrower, which contracts shall be satisfactory to the Facility Agent and its
counsel;



               (j) Subordination Agreement.
The Senior Agent shall have entered into a Subordination Agreement with the Facility Agent,
which document shall be in form and substance satisfactory thereto; and



               (k) [Intentionally Omitted.]



               (l) Legal Opinions.
The Facility Agent, on behalf of the Agents and the Lenders, shall have received legal
opinions addressed to the Facility Agent from (i) Strasburger & Price, L.L.P., counsel for the
Security Parties, and (ii) Seward & Kissel LLP, special counsel to the Agents and Lenders, in each
case in such form as the Facility Agent may require, as well as such other legal opinions as the
Facility Agent shall have required as to all or any matters under the laws of the United States of
America and the State of New York covering the representations and conditions which are the
subjects of Sections 2 and 4.1.



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




               (a) Drawdown Notice.
The Facility Agent having received a Drawdown Notice in accordance with the terms of Section
3.2;



               (b) The Vessels.
The Facility Agent shall have received evidence satisfactory to it that each of the Vessels
owned by the Borrower being delivered in connection with such Advance or previously delivered
and/or acquired by the Borrower:




	 	(i)	 	is in the sole and absolute ownership of the
Borrower as set forth in Schedule 2 and duly registered in the
Borrower’s name under United States flag, Jones Act Eligible,
unencumbered, save and except for the
Mortgage, recorded against it and as otherwise permitted thereby, and
the Senior Mortgage;
	 
	 	(ii)	 	is classed in the highest classification and
rating for vessels of the same age and type with the respective
classification society as set forth in Schedule 2 without any material
outstanding recommendations;




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	 	(iii)	 	is operationally seaworthy and in every way fit
for its intended service; and
	 
	 	(iv)	 	is insured in accordance with the provisions of
the Mortgage recorded against it and the requirements thereof in respect
of such insurances have been complied with;





               (c) Vessel Documents.
The Borrower shall have duly executed (where appropriate) and delivered to the Facility Agent
with respect to the Pre-Existing Vessels, and the GPA 654 Vessel being financed in connection with
such Advance:




	 	(i)	 	the Mortgage over such Vessel(s) or, if
appropriate, a Mortgage Supplement to add the Vessel to be acquired with
the proceeds of the Advance to the lien of the Mortgage;
	 
	 	(ii)	 	Uniform Commercial Code Financing Statements for
filing with the State of Delaware and in such other jurisdictions as the
Facility Agent may reasonably require;





               (d) 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;



               (e) 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;



               (f) No Change in Laws.
The Facility 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 Note, the Security Documents
or any of them;



               (g) No Material Adverse Effect.
There having been no Material Adverse Effect since the date hereof;



               (h) Vessel Liens.
The Facility Agent shall have received evidence satisfactory to it and to its legal advisor
that there are no liens, charges or encumbrances of any kind whatsoever on each of the Vessels
being delivered in connection with such Advance, save for the liens created by the Mortgage, the
Senior Mortgages and as permitted hereby or by any of the Security Documents;



               (i) [Intentionally Omitted.]



               (j) ISM DOC and ISSC.
The Facility Agent shall have received a copy of the DOC and ISSC for of the Vessels;



               (k) Legal Opinions.
The Facility Agent, on behalf of the Agents and the Lenders, shall have received legal
opinions addressed to the Facility Agent from (i) Strasburger & Price, L.L.P., counsel for the
Security Parties and (ii) Seward & Kissel LLP, special counsel to the Agents and Lenders, in each
case in such form as the Facility Agent may require, as well as such other legal opinions as the
Facility Agent shall have required as to all or any matters under the laws of the United States of
America and the State of New York covering the representations and conditions which are the
subjects of this Section 4.2.



23









 





          4.3 Breakfunding Costs.
In the event that, on the date specified for the making of an Advance in any Drawdown Notice,
the Lenders shall not be obliged under this Agreement to make such Advance available, the Borrower
shall indemnify and hold the Lenders fully harmless against any losses which the Lenders (or any
thereof) may sustain as a result of borrowing or agreeing to borrow funds to meet the drawdown
requirement of such Drawdown Notice and the certificate of the relevant Lender or Lenders shall,
absent manifest error, be conclusive and binding on the Borrower as to the extent of any such
losses.




          4.4 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 Borrower hereby covenants and undertakes to
satisfy or procure the satisfaction of such condition or conditions within five (5) days after the
relevant Drawdown Date (or such longer period as the Lenders, in their sole discretion, may agree).




     5. REPAYMENT AND PREPAYMENT



          5.1 Repayment.
No principal payment on the Facility may be made until all obligations under the Senior Credit
Agreement are paid in full to the Senior Creditors, as more particularly provided in the
Subordination Agreement. Interest on the Facility shall be payable in accordance with Section 6 of
this Agreement. Subject to all obligations of the Borrower to the Senior Creditors under the
Senior Credit Agreement being fully satisfied and discharged, all principal, accrued interest
and all other fees, costs and charges shall be paid to the Creditors on June 30, 2010.




          5.2 Voluntary Prepayment; No Re-borrowing.
Subject to the terms of the Subordination Agreement, the Borrower may prepay, upon thirty (30)
days prior written notice, any outstanding Advance or any portion thereof, without penalty,
provided that such prepayment is made on the last day of the Interest Period of such Advance. Each
prepayment shall not be available for re-borrowing.




          5.3 Mandatory Prepayment; Sale or Loss of Vessel.
On (i) any sale of a Vessel or (ii) the earlier of (x) one hundred eighty (180) days after the
Total Loss of a Vessel or (y) the date on which the insurance proceeds in respect of such loss are
received by the Borrower or the Facility Agent as assignee thereof, outstanding amounts under the
Facility shall be prepaid in an amount equal to the sum of the then committed amount under this
Agreement related to the proportionate value of the respective Vessel (determined at the time of
such prepayment). Prepayments made under this Section 5.3 shall be applied to the remaining
payments on a pro-rata basis and will not be available for re-borrowing.




          5.4 Interest and Costs with Prepayments/Application of Prepayments.
Subject to the terms of the Subordination Agreement, any prepayment of the Advances made
hereunder (including, without limitation, those made pursuant to Sections 5 and 9) 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 with respect to the Advances or portions thereof being prepaid, 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 Borrower).




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     6. INTEREST AND RATE



          6.1 Applicable Rate.
Each Advance shall bear interest at the Applicable Rate, which shall be the rate per annum
which is equal to the aggregate of (a) LIBOR for the relevant Interest Period plus (b) the
Applicable Margin. The Applicable Rate shall be determined by the Facility Agent two (2) Banking
Days prior to the first (1st) day of the relevant Interest Period. The Facility Agent
shall promptly notify the Borrower in writing of the Applicable Rate as and when determined. Each
such determination, absent manifest error, shall be conclusive and binding upon the Borrower. The
Borrower may elect to fix the Applicable Rate by entering into an Interest Rate Agreement with the
Facility Agent.




          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 (i) the otherwise Applicable Rate (as notified to the Borrower by the Facility
Agent), plus (ii) the Applicable Margin, plus (iii) three percent (3%) (the “Default Rate”).
In addition, following the occurrence of any Event of Default, the Facility Agent may, and
upon instruction of the Majority Lenders shall, deliver a notice to the Borrower advising the
Borrower that an Event of Default has occurred. From the date of any such notice, or in the case
of the occurrence of an Event of Default of the type described in Sections 8.1(a) or 8.1(b), from
the date such Event of Default first occurred, until each such Event of Default is cured to the
satisfaction of the Majority Lenders, the Facility shall bear interest at the Default Rate.




          6.3 Interest Periods.
The Borrower shall give the Facility Agent an Interest Notice specifying the Interest Period
selected at least three (3) Banking Days prior to the end of any then existing Interest Period. If
at the end of any then existing Interest Period the Borrower fails to give an Interest Notice the
relevant Interest Period shall be one (1) month. The Borrower’s right to select an Interest Period
shall be subject to the restriction that no selection of an Interest Period shall be effective
unless LIBOR is available 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. In addition, there may be no more than three (3) different Interest
Periods in respect of Advances made hereunder at any one time. Interest Periods for each Advance
made under Tranche B shall be consolidated at the earlier of the end of the Interest Period
immediately following the delivery date for the last delivered Vessel. The Borrower shall reimburse
the Lenders for 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 Borrower) as a consequence of such consolidation or
otherwise.




          6.4 Interest Payments.
Accrued interest on the Facility shall be payable in arrears on the last day of each Interest
Period, except that if the Borrower shall select an Interest Period in excess of one (1) month,
accrued interest shall be payable during such Interest Period on each one (1) 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 Borrower shall be made to the Facility Agent, not
later than 10 a.m. New York time (any payment received after 10 a.m. New York time shall be deemed
to have been paid on the next Banking Day) on the due date of such payment, at its



25









 







office located
at Parklaan 2, 3016 BB Rotterdam, The Netherlands or to such other office of the Facility Agent as
the Facility Agent may direct, without set-off or counterclaim and free from, clear of, and without
deduction for, any Taxes, provided, however, that if the Borrower shall at any time be compelled by
law to withhold or deduct any Taxes from any amounts payable to the Lenders hereunder, then the
Borrower 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 Borrower shall promptly send to the Facility
Agent such documentary evidence with respect to such withholding or deduction as may be required
from time to time by the Lenders. The Borrower shall send, or cause
to be sent, a SWIFT message to the Facility Agent confirming the remittance of any payment
hereunder at the time such payment is made.




          7.2 Tax Credits.
If any Lender obtains the benefit of a credit against the liability thereof for federal income
taxes imposed by any taxing authority for all or part of the Taxes as to which the Borrower has
paid additional amounts as aforesaid (and each Lender agrees to use its best efforts to obtain the
benefit of any such credit which may be available to it, provided it has knowledge that such credit
is in fact available to it), then such Lender shall reimburse the Borrower for the amount of the
credit so obtained. Each Lender agrees that in the event that Taxes are imposed on account of the
situs of its loans hereunder, such Lender, upon acquiring knowledge of such event, shall, if
reasonable, 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 any Advance or Advances 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




26









 







fully as if such Lender had made an
Advance in the amount of such participation. The Borrower expressly consents to the foregoing
arrangement.




          7.4 Computations; Banking Days.
(a) All computations of interest and fees shall be made by the Facility Agent or the Lenders, as
the case may be, on the basis of a 365-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 Facility 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 Note shall be stated to be due on a day other
than a Banking Day, such payment shall be due and payable on the next succeeding Banking Day unless
the next succeeding Banking Day falls in the following calendar month, in which case it shall be
payable on the immediately preceding Banking Day.



     8. EVENTS OF DEFAULT



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




               (a) Non-Payment of Principal.
Any payment of principal is not paid when due or, in the event such non-payment is solely the
result of a banking error or the occurrence of a day on which banks are closed for business in
London or Rotterdam (but not the United States), is not paid within two (2) days of its due date;
provided, however, that any failure to pay principal resulting from a prohibition
against paying same under or pursuant to the Subordination Agreement or the Senior Credit Agreement
shall not be an Event of Default so long as such prohibition exists; or



               (b) Non-Payment of Interest or Other Amounts.
Any interest or any other amount becoming payable to the Facility Agent or any Lender under
this Agreement, under the Note or under any of the Security Documents is not paid on the due date
or date of demand (as the case may be), and such default continues unremedied for a period of five
(5) Banking Days; provided, however, that any failure to pay interest or any other
amount resulting from a prohibition against paying same under or pursuant to the Subordination
Agreement or the Senior Credit Agreement shall not be an Event of Default so long as such
prohibition exists; or



               (c) Representations. Any representation, warranty or other statement made by the Borrower in this Agreement or by
any Security Party or in any of the Security Documents or in any other instrument, document or
other agreement delivered in connection herewith or therewith proves to have been untrue or
misleading in any material respect as at the date as of which made or confirmed; or



               (d) Mortgage.
There is an event of default under any Mortgage; or



               (e) Covenants.
Any Security Party defaults in the due and punctual observance or performance of any other
term, covenant or agreement contained in this Agreement, in the Note, in any of the Security
Documents or in any other instrument, document or other agreement delivered in connection herewith
or therewith, or it becomes impossible or unlawful for any Security Party to fulfill any such term,
covenant or agreement or there occurs any other event which constitutes a
default under this Agreement, under the Note or under any of the Security Documents, in each
case other than an Event of Default referred to elsewhere in this Section 8.1, and such default,
impossibility and/or unlawfulness, in the reasonable opinion of the Majority Lenders, could have a



27









 




material adverse effect on the Lenders’ rights or the ability of the Security Parties to perform
their obligations hereunder, under the Note and/or under the Security Documents or on the Lenders’
right to enforce this Agreement, the Note and/or the Security Documents, and continues unremedied
or unchanged, as the case may be, for a period of thirty (30) days; or




               (f) [Intentionally Omitted.]



               (g) Bankruptcy.
The Borrower, the Guarantor, any Subsidiary or any Affiliate of the Borrower commences any
proceeding under any reorganization, arrangement or readjustment of debt, dissolution, winding up,
adjustment, composition, bankruptcy or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect (a “Proceeding”), or there is commenced against any thereof any Proceeding
and such Proceeding remains undismissed or unstayed for a period of thirty (30) days or any
receiver, trustee, liquidator or sequestrator of, or for, any thereof or any substantial portion of
the property of any thereof is appointed and is not discharged within a period of thirty (30) days
or any thereof by any act indicates consent to or approval of or acquiescence in any Proceeding or
the appointment of any receiver, trustee, liquidator or sequestrator of, or for, itself or of, or
for, any substantial portion of its property; or



               (h) Termination of Operations; Sale of Assets.
Except as expressly permitted under Clause 9.2(e) of this Agreement, the Borrower ceases its
operations or sells or otherwise disposes of all or substantially all of its assets or all or
substantially all of the assets of any Security Party are seized or otherwise appropriated; or



               (i) Judgments.
Any judgment or order is made the effect whereof would be to render ineffective or invalid
this Agreement, the Note or any of the Security Documents or any material provision thereof, or the
Borrower asserts that any such agreement or provision thereof is invalid; or



               (j) Inability to Pay Debts.
The Borrower, the Guarantor, any Subsidiary or any Affiliate of the Borrower is unable to pay
or admits its inability to pay its debts as they fall due or a moratorium shall be declared in
respect of any material indebtedness of the Borrower or any Affiliate of the Borrower; or



               (k) Change in Financial Position.
Any change in the financial position of the Borrower or any Affiliate of the Borrower which,
in the reasonable opinion of the Majority Lenders, shall have a Material Adverse Effect; or



               (l) Change in Control.
A Change of Control shall occur with respect to the Borrower; or



               (m) Cross-Default.
The Borrower, the Guarantor, any Subsidiary or any Affiliate of the Borrower defaults under
any contract or agreement to which it is a party or by which it is bound and such default could
reasonably be expected to have a Material Adverse Effect; or



               (n) ERISA Debt.
(i) The Borrower or any ERISA Affiliate fails to pay when due an amount or amounts
aggregating in excess of $1,000,000 which it or they have become liable to pay under Title IV of
ERISA or (ii) the Borrower or any ERISA Affiliate, individually or collectively, incurs, or should
reasonably expect to incur, any Withdrawal Liability or liability upon the happening of a
Termination Event and the aggregate of all such Withdrawal Liabilities and such other liabilities
exceeds $10,000,000.



28









 





               Upon and during the continuance of any Event of Default, the Lenders’ obligation to make any
Advance available shall cease and the Facility Agent may, and on the instructions of the Majority
Lenders shall, by notice to the Borrower, declare the entire unpaid balance of the then outstanding
Advances, accrued interest and any other sums payable by the Borrower hereunder or under the Note
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 (g) or (j) of this Section 8.1 with respect to the
Borrower, the Note shall be immediately due and payable without declaration or other notice to the
Borrower. In such 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 Note 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 Note 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 Note. Without
limiting the foregoing, the Borrower agrees 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 Borrower to the Lenders hereunder
and/or under the Note (whether or not then due) all moneys and other amounts of the Borrower then
or thereafter in possession of any Lender, the balance of any deposit account (demand or time,
mature or unmatured) of the Borrower then or thereafter with any Lender and every other claim of
the Borrower then or thereafter against any of the Lenders.



          8.2 Indemnification.
The Borrower agrees to, and shall, indemnify and hold the Agents and the Lenders harmless
against any loss, as well as against any reasonable costs or expenses (including reasonable legal
fees and expenses), which any of the Agents or the Lenders sustains or incurs as a consequence of
any default in payment of the principal amount of the Facility, interest accrued thereon or any
other amount payable hereunder, under the Note 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 Facility or any portion thereof. Any Lenders’
certification of such costs and expenses shall, absent any manifest error, be conclusive and
binding on the Borrower.




          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 Note 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 Facility Agent in the following manner:




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



               (b) secondly,
in or towards payment of any interest owing in respect of the Facility, inclusive of
breakfunding costs,



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



               (d) fourthly,
in or towards payment of all other sums which may be owing to the Agents, or any of them, or
the Lenders under this Agreement, under the Note, under the Amendment Request Letter or under any
of the Security Documents, and



29









 





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



     9. COVENANTS



          9.1 Affirmative Covenants.
The Borrower hereby covenants and undertakes 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 Note or under any of the Security Documents, the Borrower will:




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



               (b) Notice of Default, etc.
Promptly upon obtaining knowledge thereof, inform the Facility 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 against it or against any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect, (c) the withdrawal of any Vessel’s rating by its
Classification Society or the issuance by the Classification Society of any material recommendation
or notation affecting class and (d) 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 Note and under the Security Documents;



               (d) Financial Information.
Deliver to each Lender:




	 	(i)	 	as soon as available but not later than one
hundred twenty (120) days after the end of each fiscal year of the
Borrower, complete copies of the consolidated financial reports of the
Borrower and its Subsidiaries, all in reasonable detail, which shall
include at least the consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such year and the related consolidated
statements of income and sources and uses of funds for such year, which
shall be audited reports prepared by an Acceptable Accounting Firm;
	 
	 	(ii)	 	as soon as available but not later than
forty-five (45) days after the end of each of the first three quarters
of each fiscal year of the Borrower, a quarterly interim consolidated
balance sheet of the Borrower and its Subsidiaries and the related
consolidated profit and loss statements and sources and uses of funds,
all in reasonable detail, unaudited, but certified to be true and
complete by the chief financial officer of the Borrower;
	 
	 	(iii)	 	within ten (10) days of the Borrower’s receipt
thereof, copies of all audit letters or other correspondence from any
external auditors including material financial information in respect of
the Borrower;




30









 






	 	(iv)	 	such other statements (including, without
limitation, monthly consolidated statements of operating revenues and
expenses), lists of assets and accounts, budgets, forecasts, reports and
other financial information with respect to its business as the Facility
Agent may from time to time reasonably request, certified to be true and
complete by the chief financial officer of the Borrower;





               (e) Vessel Valuations.
On the date hereof and each one year anniversary thereof, and in any event upon the request of
the Facility Agent, the Facility Agent shall obtain appraisals addressed to the Facility Agent of
the Fair Market Value of the Vessels. The first two such valuations in any year are to be at the
Borrower’s cost, provided, that following and during the continuance of any Event of
Default,
all such valuations are to be at the Borrower’s cost. For purposes of determining the
aggregate Fair Market Value of all Vessels, appraisals will be obtained for the oldest and the
youngest Pre-Existing Vessel and for the oldest and most recently delivered GPA 654 Vessel and the
aggregate Fair Market Value shall be the sum of the arithmetic means of such appraisals for each
Vessel type multiplied by the number of Vessels of such type. If the Borrower does not agree with
the result of any appraisal, the Borrower may appoint an additional ship broker from the list set
forth in Schedule 4, or such other independent ship broker approved by the Majority Lenders, to
conduct a separate appraisal, and such additional valuation shall be averaged for the purposes of
this Section 9(e).



               (f) Corporate Existence.
Do or cause to be done, and procure that each Subsidiary of the Borrower and the Guarantor
shall do or cause to be done, all things necessary to preserve and keep in full force and effect
its corporate existence, or limited liability company existence, as the case may be, and all
licenses, franchises, permits and assets necessary to the conduct of its business;



               (g) Books and Records.
At all times keep, and cause each Subsidiary of the Borrower to keep, proper books of record
and account into which full and correct entries shall be made in accordance with GAAP;



               (h) Taxes and Assessments.
Pay and discharge, and cause each Subsidiary of the Borrower to pay and discharge, all
material 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;



               (i) Inspection.
Allow, and cause each Subsidiary to allow, any representative or representatives designated by
the Facility Agent, subject to applicable laws and regulations, to visit and inspect any of its
properties, and, on request, to examine its books of account, records, reports and other papers and
to discuss its affairs, finances and accounts with its officers, all at such reasonable times and
as often as the Facility Agent reasonably requests;



               (j) Inspection and Survey Reports.
The Borrower shall provide the Lenders with copies of all inspection or survey reports on the
Vessels issued by the Classification Society and all internally generated reports addressing
material items in respect of the condition of any of the Vessels.



               (k) Compliance with Statutes, Agreements, etc.
Do or cause to be done, and cause each Subsidiary to do and cause to be done, all things
necessary to comply with all material



31









 




contracts or agreements to which it, or any Subsidiary is a
party, and all material laws, and the rules and regulations thereunder, applicable to the Borrower
or such Subsidiary, including, without limitation, those laws, rules and regulations relating
to employee benefit plans and environmental matters;




               (l) Environmental Matters.
Promptly upon the occurrence of any of the following conditions, provide to the Facility Agent
a certificate of a chief executive officer thereof, specifying in detail the nature of such
condition and its proposed response or the response of its Environmental Affiliates: (a) its
receipt or the receipt by any other Security Party or any Environmental Affiliates of the Borrower
or any other Security Party of any written communication whatsoever that alleges that such person
is not in compliance with any applicable Environmental Law or Environmental Approval, if such
noncompliance could reasonably be expected to have a Material Adverse Effect, (b) knowledge by it,
or by any other Security Party or any Environmental Affiliates of the Borrower or any other
Security Party that there exists any Environmental Claim pending or threatened against any such
person, which could reasonably be expected to have a Material Adverse Effect, or (c) any release,
emission, discharge or disposal of any material that could form the basis of any Environmental
Claim against it, any other Security Party or against any Environmental Affiliates of the Borrower
or any other Security Party, if such Environmental Claim could reasonably be expected to have a
Material Adverse Effect. Upon the written request by the Facility Agent, it will submit to the
Facility Agent at reasonable intervals, a report providing an update of the status of any issue or
claim identified in any notice or certificate required pursuant to this subsection;



               (m) ERISA.
Forthwith upon learning of the occurrence of any material liability of the Borrower, any
Subsidiary or any ERISA Affiliate pursuant to ERISA in connection with the termination of any 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 Plan for which the Borrower, any Subsidiary or any ERISA Affiliate is plan
administrator (as defined in ERISA), furnish or cause to be furnished to the Lenders written notice
thereof;



               (n) Vessel Management.
Cause each of the Vessels to be managed both commercially and technically by the Borrower, a
wholly-owned subsidiary thereof or its existing manager;



               (o) ISM Code, ISPS Code and MTSA Matters.
(i) Procure that the Operator will comply with and ensure each of the Vessels will comply
with the requirements of (A) the ISM Code and the ISPS Code in accordance with the implementation
schedule thereof, including (but not limited to) the maintenance and renewal of valid certificates
pursuant thereto and (B) the MTSA; and (ii) will procure that the Operator will immediately inform
the Facility Agent if there is any threatened or actual withdrawal, suspension, cancellation or
modification of its DOC or the ISSC or the SMC in respect of any Vessel; and (iii) will procure
that the Operator will promptly inform the Facility Agent upon the issuance to the Borrower or
Operator of a DOC and the issuance to any Vessel of an ISSC and an SMC;



               (p) Brokerage Commissions, etc.
Indemnify and hold each of 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. The Facility Agent represents that it has not used a broker in
connection with the origination of this Facility; and



               (q) [Intentionally Omitted.]




32











 





               (r) Insurance.
Without prejudice to the provisions of the Mortgages, 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 as are usually
insured against by companies of established reputation engaged in the same or similar business from
time to time.



          9.2 Negative Covenants.
The Borrower hereby covenants and undertakes 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 Note or under any of the Security Documents, the Borrower will not, and will procure that no
Subsidiary, to the extent applicable, 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 Collateral or other property except:




	 	(i)	 	liens disclosed in Schedule 3;
	 
	 	(ii)	 	liens for taxes not yet payable for which
adequate reserves have been maintained;
	 
	 	(iii)	 	the Mortgage, the Senior Mortgages and other
liens in favor of the Security Trustee or the Senior Security Trustee;
	 
	 	(iv)	 	liens, charges and encumbrances against their
respective Vessels permitted to exist under the terms of the Mortgage;
	 
	 	(v)	 	other liens, charges and encumbrances incidental
to the conduct of the business of each such party, the ownership of any
such party’s property and assets and which do not in the aggregate
materially detract from the value of each such party’s property or
assets or materially impair the use thereof in the operation of its
business;





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



               (c) Change in Flag, Class, Management or Ownership.
Without the approval of the Majority Lenders, change the flag of any Vessel, change the
Classification Society of any Vessel, the technical management of any Vessel or the immediate or
ultimate ownership of any Vessel;



               (d) Sale or Pledge of Shares.
Sell, assign, transfer, pledge or otherwise convey or dispose of any of its shares of capital
stock (including by way of spin-off, installment sale or otherwise) other than to any other
Subsidiary of Guarantor;



               (e) [Intentionally Omitted.]



               (f) Changes in Offices or Names.
Change the location of its chief executive office or the chief place of business any such
parties, the office in which the records relating to the earnings or insurances of the Vessels are
kept unless the Lenders shall have received sixty (60) days prior written notice of such change
and, in on event, to any jurisdiction outside the United States of America;



33









 





               (g) Consolidation and Merger.
Consolidate with, or merge into, any corporation or other entity, or merge any corporation or
other entity into it except for transactions with Affiliates;



               (h) [Intentionally Omitted.].



               (i) [Intentionally Omitted.]



               (j) Use of Corporate Funds.
Pay out any funds to any company or person except (i) in the ordinary course of business in
connection with the management of the business of the Borrower, including the operation and/or
repair of the Vessels and other vessels owned or operated by such parties and (ii) the servicing of
the Funded Debt permitted hereunder (but excluding, any repayments or prepayments of any Funded
Debt other than the Facility);



               (k) No Money Laundering.
In connection with this Agreement or any of the Security Documents, contravene any law,
official requirement or other regulatory measure or procedure implemented to combat “money
laundering” (as defined in Article 1 of the Directive (91/308/EEC) of the Council of the European
Communities) and comparable United States Federal and state laws.



          9.3  [Intentionally Omitted.]




          9.4 Asset Maintenance.
As long as any Obligations of the Borrower to the Creditors remain outstanding, if the
principal balance of the Obligations exceeds the Liquidation Market Value of the Vessels as
determined by an independent, certified marine surveyor or appraiser selected by the Facility
Agent, then the Borrower, upon demand from the Facility Agent (acting on behalf of the Majority
Lenders), shall, subject to the terms and conditions of the Subordination Agreement and the Senior
Credit Agreement, either (i) supply additional Collateral acceptable to the Facility Agent (acting
on behalf of the Majority Lenders in their absolute discretion) with a value sufficient to bring
Borrower into compliance with this Section 9.4 or (ii) prepay the principal balance of the
Obligations in an amount sufficient to bring the Borrower into compliance with this Section 9.4.




     10. ASSIGNMENT.



               This Agreement shall be binding upon, and inure to the benefit of, the Borrower and the
Lenders, the Agents and their respective successors and assigns, except that the Borrower may not
assign any of its rights or obligations hereunder. Subject to the requirement that each Lender
proposing to make an assignment hereunder to unaffiliated third parties first grant the Facility
Agent a right to purchase the portion of the Facility such Lender proposes to assign on the same
terms and conditions being offered thereby , each Lender shall be entitled to assign its rights and
obligations under this Agreement or grant participation(s) in the Facility to any subsidiary,
holding company or other affiliate of such Lender, to any subsidiary or other affiliate company of
any thereof or collateralized loan obligation fund or trust (“CLO”) or, with the consent of the
Borrower (except upon the occurrence and during the continuation of an Event of Default in which
case the Borrower’s consent shall not be required), and the Facility Agent, each such consent not
to be unreasonably withheld and provided that no assignment shall result in increased costs or
withholding, to any other bank or financial institution, and in the case of a partial assignment
(other than to another Lender or to an affiliate of such Lender), such assignment must be in a
minimum amount of not less than $10,000,000 and after giving effect thereto, the assigning Lender,
if it retains any interest, shall retain an interest in the Facility in a minimum amount of not
less than $10,000,000 unless otherwise agreed by the Borrower and the Facility Agent, and such
Lender shall



34









 







forthwith give notice of any such assignment or participation to the Borrower and pay
the Facility Agent an assignment fee of $3,000 for each such assignment or participation;
provided, however, that any such assignment must be made pursuant to an Assignment
and Assumption Agreement. The Borrower 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 reasonable 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 Facility Agent and the Borrower to that effect,
whereafter the liability of such Lender to make its Commitment available shall forthwith cease and
the Borrower shall be required either to repay to such Lender that portion of the Facility advanced
by such Lender immediately or, if such Lender so agrees, to repay such portion of the Facility to
such Lender on the last day of any then current Interest Period in accordance with and subject to
the provisions of Section 11.4. In any such event, but without prejudice to the aforesaid
obligations of the Borrower to repay such portion of the Facility, the Borrower and the relevant
Lender shall negotiate in good faith with a view to agreeing on terms for making such portion of
the Facility available from another jurisdiction or otherwise restructuring such portion of the
Facility on a basis which is not unlawful.




          11.2 Increased Costs.
If any change in applicable law, regulation or regulatory requirement, or in the
interpretation or application thereof by any governmental or other authority, shall:





	 	(i)	 	subject any Lender to any Taxes with respect to
its income from the Facility, 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 Borrower or any of the other Security Parties) or such
other jurisdiction where the Facility 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 Facility or any part thereof,




35









 











               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:



               (a) the Lender shall notify the Facility Agent and the Borrower of the happening of such
event, and



               (b) the Borrower agrees 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;
PROVIDED, however, that the foregoing provisions shall not be applicable in the event that
increased costs to the Lender result solely from the exercise by the Lender of its right to assign
its rights or obligations under Section 10.



          11.3 Replacement of Lender or Participant.
If the obligation of any Lender to make its pro rata share of any Tranche has been
suspended or terminated pursuant to Section 11.1, or if any Lender shall notify the Borrowers of
the happening of any event leading to increased costs as described in Section 11.2, the Borrowers
shall have the right, upon twenty (20) Banking Days’ prior written notice to such Lender, to cause
one or more banks (a “Replacement Lender(s)”) (which may be one or more of the Lenders), each such
Replacement Lender to be satisfactory to the Majority Lenders (determined for this purpose as if
such transferor Lender had no Commitment and held no interest in the Note issued to it hereunder)
and, in each case, with the written acknowledgment of the Facility Agent, to purchase such Lender’s
pro rata share of the Tranches and assume the Commitment of such Lender pursuant to an Assignment
and Assumption Agreement. If one or more such banks are identified by the Borrowers
and approved as being reasonably satisfactory to the Majority Lenders (determined as provided
above), the transferor Lender shall consent to such sale and assumption by executing and delivering
an Assignment and Assumption Agreement. Upon execution and delivery of an Assignment and
Assumption Agreement by the Borrowers, the transferor Lender, the Replacement Lender and the
Facility Agent, and payment by the Replacement Lender to the transferor Lender of an amount equal
to the purchase price agreed between such transferor Lender and such Replacement Lender, such
Replacement Lender shall become a Lender party to this Agreement (if it is not already a party
hereto as applicable) and shall have all the rights and obligations of a Lender with a Commitment
(which, if such Replacement Lender is already a party hereto, shall take into account such
Replacement Lender’s then existing Commitment hereunder) as set forth in such Assignment and
Assumption Agreement and the transferor Lender shall be released from its obligations hereunder and
no further consent or action by any other Person shall be required. In the event no Replacement
Lender is found or is satisfactory to the Majority Lenders, the Borrower shall have the right to
request a permanent reduction of the Facility by reducing the whole of such Lender’s commitment,
provided that (a) the Facility Agent and the Lender’s whose Commitment the Borrower seeks to reduce
receive ten (10) Banking Days prior written notice of such request and (b) such reduction occurs on
the last day of the applicable Interest Period(s) for Tranches (or portions thereof) outstanding
under this Agreement. Upon such reduction, the reduced Lender shall be released from its
obligations hereunder and no further action by any Person shall be required and the new
participation percentages (as designated in Schedule 1 hereto) shall be assigned to the remaining
Lenders on a pro rata basis based on their respective Commitments. In the event that the Facility
Agent, in its capacity as a Lender, is required to sell its pro rata share of the Tranches and its
Commitment




36









 







hereunder pursuant to this Section 11.3, the Facility Agent shall, promptly upon the
consummation of any assignment pursuant to this Section 11.3, resign as Facility Agent hereunder
and the Borrowers shall (subject to the consent of the Majority Lenders) have the right to appoint
another Lender as successor Facility Agent, all in accordance with Section 15.13.




          11.4 Nonavailability of Funds.
If the Facility 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 Applicable Rate for the Facility for any Interest Period, the Facility Agent shall give notice
of such determination to the Borrower. The Borrower, the Facility Agent and the Majority Lenders
shall then negotiate in good faith in order to agree upon a mutually satisfactory interest rate
and/or Interest Period to be substituted for those which would otherwise have applied under this
Agreement. If the Borrower, the Facility Agent and the Majority Lenders are unable to agree upon
such a substituted interest rate and/or Interest Period within five (5) Banking Days of the giving
of such determination notice, the Facility 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 Facility. 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 Applicable Rate may be determined pursuant
to Section 6.




          11.5 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, bad faith or misconduct, be conclusive and binding on
the Borrower.




          11.6 Compensation for Losses.
Where the Facility or any portion thereof is to be repaid by the Borrower pursuant to this
Section 11, the Borrower agrees 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 Borrower 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 Note or any of the Security Documents then the conversion shall be made,
in the discretion of the Facility 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 Facility 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 Note, 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 Borrower shall pay such additional amounts (if any,
but in any event not a lesser amount) as may be necessary to




37









 







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 Note 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 Borrower.




          12.3 Additional Debt Due.
Any amount due from the Borrower 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 Note and/or any of the Security Documents.




          12.4 Rate of Exchange.
The term “rate of exchange” in this Section 12 means the rate at which the Facility 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.
The Borrower shall pay to the Creditors such fees as are set forth in the Amendment Request
Letter as same become due and payable pursuant to the terms thereof.




          13.2 Expenses.
The Borrower 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 Agent’s
and the Lenders’ rights or remedies with respect thereto or in the preservation of the Agent’s and
the Lenders’ priorities under the documentation executed and delivered in connection therewith)
including, without limitation, all reasonable costs and expenses of preparation, negotiation,
execution and administration of this Agreement and the documents referred to herein, the reasonable
fees and disbursements of the Agent’s 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 Agents in connection with this Agreement and the transactions
contemplated hereby and under the Security Documents, all reasonable costs and expenses, if any, in
connection with the enforcement of this Agreement, the Note 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 Note) 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 Borrower 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 Borrower 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 Borrower 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 Lenders or the Agents under




38









 







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 Borrower by mailing or delivering the same by hand to the Borrower
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 Borrower as such, and shall be legal and binding upon the
Borrower 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 Borrower to the Lenders or the Agent) against the Borrower in any such legal
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment. The Borrower will advise the Facility 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 BORROWER, THE OTHER SECURITY PARTIES, THE AGENT 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 NOTE 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 Note 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 Note or the Security Documents
or in connection therewith, except for its or their own gross negligence or willful misconduct.




          15.2 Security Trustee as Trustee.
Each of the Lenders irrevocably appoints the Security Trustee as trustee 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 Note 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 Note 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 Note 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 by any Lender or any agent of any Lender in respect of the same
(or any part thereof). The Security Trustee hereby accepts such appointment.




          15.3 Distribution of Payments.
Whenever any payment is received by the Facility Agent from the Borrower or any other Security
Party for the account of the Lenders, or any of them, whether of principal or interest

on the Note, commissions, fees under Section 13 or otherwise, it will thereafter cause to be
distributed on the same day if received before 4:30 p.m. Rotterdam time,




39









 







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.
Unless the Facility Agent shall have received notice that the Borrower is not making a timely
payment of amounts due hereunder, the Facility Agent and the Facility Agent may, in reliance upon
such assumption make available to the Lenders on such date their pro rata share of
a corresponding amount. If and to the extent that the Borrower shall not have so made such payment
to the Facility Agent, the Lenders and the Borrower (but without duplication) severally agree to
repay to the Facility Agent forthwith on demand such corresponding amount or their pro
rata share thereof together with interest thereon, for each day from the date such amount
is made available until the date such amount is repaid to the Facility Agent, at (i) in the case of
the borrower, a rate per annum equal to the higher of (y) the LIBOR rate for overnight or weekend
deposits plus the Margin plus three (3) percent and (z) the interest rate applicable thereto
pursuant to Section 6.1 and (ii) in the case of such Lender, the LIBOR rate for overnight or
weekend deposits.




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




          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 Note, the Security Documents or any instrument, document
or communication furnished pursuant to this Agreement or in connection therewith or in connection
with the Note 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 Facility 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 Borrower 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 Note 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 Note 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 Note and the Security Documents, unless
the Facility Agent shall have been instructed by the Majority Lenders to
exercise such rights or




40









 












	 	 	 	to take or refrain from 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 Note, 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 nor the Note nor any of the Security Documents nor any terms hereof or
thereof may be amended unless such amendment is approved by the Borrower 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 Facility, or reduce the principal amount of the Facility 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 or any mandatory repayment of
Facility 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 Borrower of any of its rights and obligations under this Agreement, (vi) release any
Security Party from any of its obligations under any Security Document except as expressly provided
herein or in such Security Document or (vii) amend any provision relating to the maintenance of
collateral under Section 9.4; provided further that approval by all Lenders shall be required for
any amendment or waivers with respect to 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 Borrower, 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 Section 5.3 of this Agreement must be in writing and signed by the Borrower
and all of the Lenders.




          15.9 Assumption re Event of Default.
Except as otherwise provided in Section 15.15, the Facility 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 Facility 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 (specifying in detail the nature thereof)
has occurred and is continuing. In the event that the Facility Agent shall have been notified by
any Security Party or any Lender in the manner set forth in the preceding sentence 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 Facility Agent shall notify the Lenders and shall take action and assert
such rights under this Agreement, under the Note and under Security Documents as the Majority
Lenders shall request in writing.




          15.10 Limitations of Liability.
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




41









 












	 	 	 	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 Note 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 Note, 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 Note 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 Note 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 Facility Agent and the Security Trustee 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 sixty (60) 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 sixty (60) 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 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. Furthermore, the Facility
Agent has a right during the initial twelve (12) month period from the date of this Agreement to
transfer its role as Agent or Security Trustee to any other Lender, and any such transfer shall not
require the consent of the Borrower or any other Lender under this Agreement.




42









 








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




          15.16 No Agency or Trusteeship if DVB only Lender. If at any time DVB is the only
Lender, all references to the terms “Facility Agent” and “Security Trustee” in this Agreement, the
Note and each other Security Document shall be deemed to be references to DVB as Lender and not as
Facility Agent or Security Trustee.




     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 Borrower at the address or telecopy number set forth below and to the Lenders and
the Agents at their address and telecopy numbers set forth in Schedule 1 or at such other address
or telecopy 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 effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in this Section and
telephonic confirmation of receipt thereof is obtained or (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.




               If to the Borrower:


c/o Rigdon Marine Corporation

815 Walker Street, Suite 750

Houston, Texas 77002

United States of America

Facsimile: (713) 863 0541

Attention: Richard M. Currence



with a copy to:




43









 







GulfMark Offshore, Inc.

10111 Richmond Ave., Suite 340

Houston, TX 77042

Phone: 713 963 9522

Facsimile: 713 963 0541

Attention: Quintin V. Kneen



and



Strasburger & Price, L.L.P.

1401 McKinney Street, Suite 2200

Houston, TX 77010

Attention: Garney Griggs




     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 any Agent 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 any Agent 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 Note 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 Borrower agrees that if this Agreement or any Security Document shall, in the reasonable
opinion of the Lenders, at any time be deemed by 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 Note or any
Security Document.




          17.5 [Intentionally Omitted.]




          17.6 Entire Agreement; Amendments.
This Agreement constitutes the entire agreement of the parties hereto including all parties
added hereto pursuant to an Assignment and Assumption Agreement. Subject to Section 15.8, any
provision of this Agreement, the Note 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 Borrower, 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.




44









 








          17.7 Indemnification.
The Borrower agrees to indemnify each Lender and each Agent, 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 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 Borrower 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 (or any charterer or other operator of any Vessel) of any
applicable Environmental Law, (b) any Environmental Claim 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 any Agent or any of their respective successors or assigns), (c) the breach of any
representation, warranty or covenant set forth in Sections 2.1 (n) or 9.1(l), (d) the Facility
(including

the use of the proceeds of the Facility and any claim made for any brokerage commission, fee
or compensation from any Person), of (e) the execution, delivery, performance or non-performance of
this Agreement, the Note, 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
Borrower 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 Customer Identification.
USA Patriot Act Notice; OFAC and Bank Secrecy Act. The Agent hereby notifies the Borrower and
each other Security Party that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56, signed into law October 26, 2001) (the “Act”), and the Agent’s policies and
practices, the Agent and each of the Lenders is required to obtain, verify and record certain
information and documentation that identifies each Security Party, which information includes the
name and address of each Security Party and such other information that will allow the Agent and
the Lenders to identify each Security Party in accordance with the Act. In addition, each Security
Party shall (a) ensure that no Person who owns a controlling interest in or otherwise controls any
Security Party or any subsidiary of any thereof is or shall be listed on the Specially Designated
Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets
Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, (b) not use
or permit the use of the proceeds of the Facility to violate any of the foreign asset control
regulations of OFAC or any enabling statute or Executive Order relating thereto, and (c) comply,
and cause any of its subsidiaries to comply, with all applicable Bank Secrecy Act laws and
regulations, as amended.




[Remainder of Page Intentionally Left Blank]





45









 








               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.



	 	 	 	 	 
	 	BOURBON CAPITAL U.S.A., INC.,

as Assignor

 	 
	 	By:  	/s/ Richard D. Childers
 	 
	 	 	Name:  	Richard D. Childers 	 
	 	 	Title:  	President 	 
	 
	 	RIGDON MARINE CORPORATION,

as Borrower

 	 
	 	By:  	/s/ Bruce Streeter
 	 
	 	 	Name:  	Bruce Streeter 	 
	 	 	Title:  	Chairman & CEO 	 
	 
	 	DVB BANK NV,

as Facility Agent and Security Trustee

 	 
	 	By:  	/s/ Matthew R. Cooley
 	 
	 	 	Name:  	Matthew R. Cooley 	 
	 	 	Title:  	Attorney-in-Fact 	 
	 
	 	The Lenders:



DVB BANK NV,

 	 
	 	By:  	/s/ Matthew R. Cooley
 	 
	 	 	Name:  	Matthew R. Cooley 	 
	 	 	Title:  	Attorney-in-Fact