exv10w1






Exhibit 10.1




EXECUTION COPY




 





UNITED MARITIME GROUP, LLC

U.S. UNITED BARGE LINE, LLC,

U.S. UNITED OCEAN SERVICES, LLC,

U.S. UNITED BULK TERMINAL, LLC,

U.S. UNITED INLAND SERVICES, LLC,

TINA LITRICO, LLC,

MARY ANN HUDSON, LLC,

SHEILA MCDEVITT, LLC, and

MARIE FLOOD, LLC

as Borrowers




 





 





LOAN AND SECURITY AGREEMENT




Dated as of December 22, 2009



$135,000,000



 





 





CERTAIN FINANCIAL INSTITUTIONS,

as Lenders,




BANK OF AMERICA, N.A.,

as Administrative Agent, Co-Collateral Agent and Security Trustee,



BANC OF AMERICA SECURITIES LLC,

WELLS FARGO FOOTHILL, LLC, and

JEFFERIES FINANCE LLC,

as Joint Lead Arrangers and Book Managers,



and



WELLS FARGO FOOTHILL, LLC,

as Co-Collateral Agent



 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Section 1. DEFINITIONS; RULES OF CONSTRUCTION
	 	 	1	 
	1.1. Definitions
	 	 	1	 
	1.2. Accounting Terms; GAAP
	 	 	29	 
	1.3. Uniform Commercial Code
	 	 	29	 
	1.4. Certain Matters of Construction
	 	 	29	 
	Section 2. CREDIT FACILITIES
	 	 	30	 
	2.1. Commitment
	 	 	30	 
	2.2. Reserved
	 	 	31	 
	2.3. Letter of Credit Facility
	 	 	31	 
	Section 3. INTEREST, FEES AND CHARGES
	 	 	34	 
	3.1. Interest
	 	 	34	 
	3.2. Fees
	 	 	36	 
	3.3. Computation of Interest, Fees, Yield Protection
	 	 	36	 
	3.4. Reimbursement Obligations
	 	 	36	 
	3.5. Illegality
	 	 	37	 
	3.6. Inability to Determine Rates
	 	 	37	 
	3.7. Increased Costs; Capital Adequacy
	 	 	37	 
	3.8. Mitigation
	 	 	38	 
	3.9. Funding Losses
	 	 	38	 
	3.10. Maximum Interest
	 	 	39	 
	3.11. Replacement of Lenders
	 	 	39	 
	Section 4. LOAN ADMINISTRATION
	 	 	39	 
	4.1. Manner of Borrowing and Funding Loans
	 	 	39	 
	4.2. Defaulting Lender
	 	 	41	 
	4.3. Number and Amount of LIBOR Loans; Determination of Rate
	 	 	41	 
	4.4. Borrower Agent
	 	 	41	 
	4.5. One Obligation
	 	 	42	 
	4.6. Effect of Termination
	 	 	43	 
	Section 5. PAYMENTS
	 	 	43	 
	5.1. General Payment Provisions
	 	 	43	 
	5.2. Repayment of Loans
	 	 	44	 
	5.3. Mandatory Payments
	 	 	44	 
	5.4. Payment of Other Obligations
	 	 	44	 
	5.5. Marshaling; Payments Set Aside
	 	 	44	 
	5.6. Post-Default Allocation of Payments
	 	 	44	 
	5.7. Application of Payments
	 	 	45	 
	5.8. Loan Account; Account Stated
	 	 	46	 
	5.9. Taxes
	 	 	46	 
	5.10. Foreign Lenders
	 	 	46	 
	5.11. Nature and Extent of Each Borrower’s Liability
	 	 	47	 
	5.12. U.S. Lenders
	 	 	49	 
	5.13. Tax Refunds
	 	 	49	 
	Section 6. CONDITIONS PRECEDENT
	 	 	49	 
	6.1. Conditions Precedent to Initial Loans
	 	 	49	 
	6.2. Conditions Precedent to All Credit Extensions
	 	 	51	 
	6.3. Limited Waiver of Conditions Precedent
	 	 	52	 
	Section 7. COLLATERAL
	 	 	52	 
	7.1. Grant of Security Interest
	 	 	52	 
	7.2. Lien on Deposit Accounts; Cash Collateral
	 	 	53	 






 









 






	 	 	 	 	 
	 	 	Page	 
	7.3. Real Estate Collateral
	 	 	54	 
	7.4. Other Collateral
	 	 	54	 
	7.5. No Assumption of Liability
	 	 	54	 
	7.6. Further Assurances
	 	 	55	 
	7.7. Foreign Subsidiary Stock
	 	 	55	 
	Section 8. COLLATERAL ADMINISTRATION
	 	 	55	 
	8.1. Borrowing Base Certificates
	 	 	55	 
	8.2. Administration of Accounts
	 	 	55	 
	8.3. Administration of Inventory
	 	 	56	 
	8.4. Administration of Vessels and Equipment
	 	 	57	 
	8.5. Administration of Deposit Accounts
	 	 	57	 
	8.6. General Provisions
	 	 	58	 
	8.7. Power of Attorney
	 	 	59	 
	Section 9. REPRESENTATIONS AND WARRANTIES
	 	 	59	 
	9.1. General Representations and Warranties
	 	 	59	 
	9.2. Complete Disclosure
	 	 	65	 
	9.3. Amendment of Schedules
	 	 	65	 
	Section 10. COVENANTS AND CONTINUING AGREEMENTS
	 	 	65	 
	10.1. Affirmative Covenants
	 	 	65	 
	10.2. Negative Covenants
	 	 	69	 
	10.3. Financial Covenants
	 	 	75	 
	Section 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT
	 	 	76	 
	11.1. Events of Default
	 	 	76	 
	11.2. Remedies upon Default
	 	 	77	 
	11.3. License
	 	 	78	 
	11.4. Setoff
	 	 	78	 
	11.5. Remedies Cumulative; No Waiver
	 	 	78	 
	Section 12. AGENT AND SECURITY TRUSTEE
	 	 	79	 
	12.1. Appointment, Authority and Duties of Agent and Security Trustee
	 	 	79	 
	12.2. Agreements Regarding Collateral and Field Examination Reports
	 	 	80	 
	12.3. Reliance By Agent and Security Trustee
	 	 	81	 
	12.4. Action Upon Default
	 	 	81	 
	12.5. Ratable Sharing
	 	 	81	 
	12.6. Indemnification of Agent Indemnitees
	 	 	81	 
	12.7. Limitation on Responsibilities of Agent and Security Trustee
	 	 	81	 
	12.8. Successor Agent and Co-Agents
	 	 	82	 
	12.9. Due Diligence and Non-Reliance
	 	 	83	 
	12.10. Replacement of Certain Lenders
	 	 	83	 
	12.11. Remittance of Payments and Collections
	 	 	83	 
	12.12. Agent and Security Trustee in its Individual Capacity
	 	 	84	 
	12.13. Agent Titles
	 	 	84	 
	12.14. No Third Party Beneficiaries
	 	 	84	 
	Section 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS
	 	 	84	 
	13.1. Successors and Assigns
	 	 	84	 
	13.2. Participations
	 	 	85	 
	13.3. Assignments
	 	 	85	 
	Section 14. MISCELLANEOUS
	 	 	86	 
	14.1. Consents, Amendments and Waivers
	 	 	86	 
	14.2. Indemnity
	 	 	87	 
	14.3. Notices and Communications
	 	 	87	 
	14.4. Performance of Borrowers’ Obligations
	 	 	88	 
	14.5. Credit Inquiries
	 	 	88	 






(ii)









 






	 	 	 	 	 
	 	 	Page	 
	14.6. Severability
	 	 	88	 
	14.7. Cumulative Effect; Conflict of Terms
	 	 	88	 
	14.8. Counterparts
	 	 	88	 
	14.9. Entire Agreement
	 	 	88	 
	14.10. Relationship with Lenders
	 	 	88	 
	14.11. No Advisory or Fiduciary Responsibility
	 	 	89	 
	14.12. Confidentiality
	 	 	89	 
	14.13. Certifications Regarding Indentures
	 	 	90	 
	14.14. GOVERNING LAW
	 	 	90	 
	14.15. Consent to Forum
	 	 	90	 
	14.16. Waivers by Borrowers
	 	 	90	 
	14.17. Patriot Act Notice
	 	 	91	 
	14.18. Bank Product Providers
	 	 	91	 






LIST OF EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A
	 	Revolver Note
	Exhibit B
	 	Bank Product Provider Letter Agreement
	Exhibit C
	 	Assignment and Acceptance
	Exhibit D
	 	Assignment Notice
	Exhibit E
	 	Form of Mortgage
	Exhibit F
	 	Form of Opinion of Willkie Farr & Gallagher LLP
	Exhibit G
	 	Form of Opinion of Burke and Parsons
	Exhibit H
	 	Form of Opinion of Kruger, Henry and Hunter
	Exhibit I
	 	Form of Opinion of Jones Walker
	Exhibit J
	 	Form of Opinion of Phelps Dunbar LLP
	Exhibit K
	 	Form of Lien Waiver






	 	 	 
	Schedule 1.1A
	 	Commitments of Lenders
	Schedule 1.1B
	 	Eligible Vessels
	Schedule 1.1C
	 	Specified Vessels
	Schedule 1.1D
	 	Title Insurance; Assignments of Leases, Etc.
	Schedule 1.1E
	 	PL480 Vessels
	Schedule 1.1F
	 	Existing Fuel Hedges
	Schedule 1.1G
	 	Existing Letters of Credit
	Schedule 7.1
	 	Certain Excluded Property
	Schedule 7.3.1
	 	Mortgaged Real Estate
	Schedule 7.3.2
	 	Leases
	Schedule 8.4.3
	 	Lien Waiver Locations
	Schedule 8.5
	 	Deposit Accounts
	Schedule 8.6.1
	 	Business Locations
	Schedule 9.1.4
	 	Names and Capital Structure
	Schedule 9.1.5
	 	Former Names and Companies
	Schedule 9.1.6
	 	Real Estate
	Schedule 9.1.12
	 	Patents, Trademarks, Copyrights and Licenses
	Schedule 9.1.15
	 	Environmental Matters
	Schedule 9.1.16
	 	Restrictive Agreements
	Schedule 9.1.17
	 	Litigation
	Schedule 9.1.19
	 	Pension Plan Disclosures
	Schedule 9.1.21
	 	Labor Contracts
	Schedule 10.2.1
	 	Certain Permitted Debt
	Schedule 10.2.2
	 	Existing Liens
	Schedule 10.2.17
	 	Existing Affiliate Transactions







(iii)











 





 LOAN AND SECURITY AGREEMENT




     THIS LOAN AND SECURITY AGREEMENT (this “Agreement”) is dated as of December 22, 2009, among
UNITED MARITIME GROUP, LLC, a Florida limited liability company (“Group”), U.S.
UNITED BARGE LINE, LLC, a Florida limited liability company (“Barge”), U.S. UNITED OCEAN SERVICES,
LLC, a Florida limited liability company (“Ocean”), U.S. UNITED BULK TERMINAL, LLC, a Louisiana
limited liability company (“Bulk”), U.S. UNITED INLAND SERVICES, LLC, a Delaware limited liability
company (“Inland”), TINA LITRICO, LLC, a Delaware limited liability company (“Tina”), MARY ANN
HUDSON, LLC, a Delaware limited liability company (“Mary Ann”), SHEILA MCDEVITT, LLC, a Delaware
limited liability company (“Sheila”), MARIE FLOOD, LLC, a Delaware limited liability company
(“Marie”, and together with Group, Barge, Ocean, Bulk, Inland, Tina, Mary Ann and Sheila,
individually and collectively, jointly and severally, the “Borrowers”), the financial institutions
party to this Agreement from time to time as lenders (collectively,
“Lenders”), BANK OF AMERICA,
N.A., a national banking association, as administrative agent and co-collateral agent for Lenders
(in such capacity, “Agent”) and as security trustee (in such capacity, “Security Trustee”), BANC OF
AMERICA SECURITIES LLC, a Delaware limited liability company, WELLS FARGO FOOTHILL, LLC, a Delaware
limited liability company, and JEFFERIES FINANCE LLC, a Delaware limited liability company, as
joint lead arrangers (in their respective capacities, “Joint Lead Arrangers”) and book managers (in
their respective capacities, “Book Managers”) for Lenders, and WELLS FARGO FOOTHILL, LLC, a
Delaware limited liability company, as co-collateral agent for Lenders (in such capacity,
“Co-Collateral Agent”).



 R E C I T A L S:




     Borrowers have requested that Lenders provide a credit facility to Borrowers to finance their
mutual and collective business enterprise. Lenders are willing to provide the credit facility on
the terms and conditions set forth in this Agreement.



     NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties agree as follows:



SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION





	 	1.1.	 	Definitions. As used herein, the following terms have the meanings set forth below:





     Account: as defined in the UCC, including all rights to payment for goods sold or leased, or
for services rendered.



     Account Debtor: a Person who is obligated under an Account, Chattel Paper or General
Intangible.



     Accounts Formula Amount: 85% of the Value of Eligible Accounts.



     Affiliate: with respect to any Person, another Person that directly, or indirectly through one
or more intermediaries, Controls or is Controlled by or is under common Control with the Person
specified. “Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have correlative meanings.



     Agent Indemnitees: Agent, Security Trustee, Joint Lead Arrangers, Book Managers, Co-Collateral
Agent and their respective officers, directors, employees, Affiliates, agents and attorneys.



 









 





     Agent Professionals: attorneys, accountants, appraisers, auditors, business valuation experts,
environmental engineers or consultants, turnaround consultants, and other professionals and experts
retained by Agent, Security Trustee or Co-Collateral Agent.



     Allocable Amount: as defined in Section 5.11.3.



     Anti-Terrorism Laws: any laws relating to terrorism or money laundering, including the Patriot
Act.



     Applicable Law: all laws, rules, regulations and governmental guidelines applicable to the
Person, conduct, transaction, agreement or matter in question, including all applicable statutory
law, common law and equitable principles, and all provisions of constitutions, treaties, statutes,
rules, regulations, orders and decrees of Governmental Authorities.



     Applicable Margin: with respect to any Type of Loan, the margin set forth below, as determined
by the average Availability for the last Fiscal Quarter:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 		 	 	Base Rate 	 	 	LIBOR	 
	Level	 	 	 	 	Average Availability	 	 	Loans	 	 	Loans	 
	I
	 	 	 	 	 	≥$	90,000,000	 	 	 	2.50%	 	 	 	3.50%	 
	II
	 	 	 	 	 	≥$ 45,000,000 and	 	 	2.75%	 	 	 	3.75%	 
	 
	 	 	 	 	 	< $	90,000,000	 	 	 	 	 	 	 	 	 
	III
	 	 	 	 	 	< $	45,000,000	 	 	 	3.00%	 	 	 	4.00%	 






     Applicable Margins shall be determined as if Level II were applicable until the delivery of
the financial statements and corresponding Compliance Certificate for the Fiscal Quarter ending
December 31, 2010. Thereafter, except as otherwise set forth below, any such increase or reduction
in the Applicable Margin shall be subject to receipt by Agent pursuant to Section 10.1.2(b) of the
financial statements and corresponding Compliance Certificate, and all adjustments in the
Applicable Margin shall be implemented quarterly on the third Business Day after Agent’s receipt of
such applicable financial statements and corresponding Compliance Certificate. If the financial
statements and the corresponding Compliance Certificate of Borrowers setting forth the average
Availability are not received by Agent by the date required pursuant to Section 10.1.2(b), the
Applicable Margin shall be determined as if Level III were applicable until such time as such
financial statements and Compliance Certificate are received and any Event of Default resulting
from a failure timely to deliver such financial statements or Compliance Certificate is waived in
writing by Agent and Required Lenders; provided, however, that Agent and Lenders shall be entitled
to accrue and receive (and Borrowers shall be obligated to pay) interest at the Default Rate to the
extent authorized by Section 3.1.1 and, on each date that the Default Rate accrues on any Loan, the
Applicable Margin on such date for such Loan shall be the Applicable Margin that would apply if
Level III were applicable (without regard to the actual average Availability on such date). For the
last Fiscal Quarter of any Fiscal Year, Borrowers may provide the unaudited financial statements of
Borrowers, subject only to year-end adjustments, for the purpose of determining the Applicable
Margin; provided, that if, upon delivery of the annual audited financial statements required to be
submitted by Borrowers to Agent pursuant to Section 10.1.2(a), Borrowers have not met the criteria
for reduction of the Applicable Margin pursuant to the terms hereinabove based on the average
Availability for the last Fiscal Quarter of the Fiscal Year then ended, then (a) such Applicable
Margin reduction shall be terminated and, effective on the first day of the month following receipt
by Agent of such audited financial statements, the Applicable Margin shall be the Applicable Margin
that would have been in effect if such reduction had been implemented based upon the audited
financial statements of Borrowers for the



-2-









 




last Fiscal Quarter of the Fiscal Year then ended, and (b) Borrowers shall pay to Agent, for the
Pro Rata benefit of Lenders, on the first day of the month following receipt by Agent of such
audited financial statements, an amount equal to the difference between the amount of interest that
would have been paid using the Applicable Margin determined based upon such audited financial
statements and the amount of interest actually paid during the period in which the reduction of the
Applicable Margin was in effect based upon the unaudited financial statements for the last Fiscal
Quarter of the Fiscal Year then ended.




     Approved Fund: any Person (other than a natural person) that is engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of credit in its ordinary
course of activities, and is administered or managed by a Lender, an entity that administers or
manages a Lender, or an Affiliate of either.



     Arrangement Letter: the arrangement letter agreement dated as of the Closing Date among Agent,
BAS, WFF, Jefferies and Borrowers.



     Asset Disposition: a sale, lease, license, consignment, transfer or other disposition of
Property of an Obligor, including a disposition of Property in connection with a sale-leaseback
transaction or synthetic lease. For the avoidance of doubt, any Permitted JV Transaction shall not
be deemed to be an “Asset Disposition” for purposes of this Agreement.



     Assignment and Acceptance: an assignment agreement between a Lender and Eligible Assignee, in
the form of Exhibit C.



     Availability: the result of (a) the lesser of (i) the Commitments, and (ii) Borrowing Base
minus (b) the principal balance of all Loans.



     Availability Reserve: any and all reserves that Agent and Co-Collateral Agent deem necessary
in their good faith credit judgment, reasonably exercised, to maintain with respect to the
Collateral or any Borrower with respect to matters that may, for any reason, limit the ability of
Agent and Lenders to recover on any Collateral or limit the ability of any of the Obligors to repay
Borrowings hereunder, or that represent amounts Agent or any Lender may be obligated to pay in the
future on behalf of a Borrower including, but not limited to, without duplication, (a) Bank Product
Reserves, as determined by Agent and Co-Collateral Agent, (b) reserves for up to three (3) months
of base rent at each leased location where any Collateral or the books and records of a Borrower
are maintained or kept, except to the extent Agent has received a collateral access agreement in
form and substance reasonably satisfactory to Agent and Co-Collateral Agent, (c) reserves for
warehousemen’s or bailees’ charges, as determined by Agent and Co-Collateral Agent, (d) reserves
for costs, charges and expenses necessary to complete freight, delivery or shipping services in
process, with the method of estimation to be determined by Agent and Co-Collateral Agent, (e)
Maritime and Cost to Complete Reserves, as determined by Agent and Co-Collateral Agent, (f) the
aggregate amount of liabilities secured by Liens upon Collateral that are senior to Agent’s or
Security Trustee’s Liens (but imposition of any such reserve shall not waive an Event of Default
arising therefrom), as determined by Agent and Co-Collateral Agent, (g) reserves for taxes, fees,
assessments, and other governmental charges, as determined by Agent and Co-Collateral Agent, and
(h) the Vessel Lease Accounts Reserve, as determined by Agent and Co-Collateral Agent.



     Bank of America: Bank of America, N.A., a national banking association, and its successors and
assigns.



     Bank of America Indemnitees: Bank of America and its officers, directors, employees,
Affiliates, agents and attorneys.



-3-









 





     Bank Product: any of the following products, services or facilities extended to any Borrower
or Subsidiary by a Bank Product Provider: (a) Cash Management Services; (b) products under Hedging
Agreements; (c) commercial credit card and merchant card services; (d) debit cards; (e) purchase
cards (including so-called “procurement cards” or “P-cards”); and (f) other banking products or
services as may be requested by any Borrower or Subsidiary, other
than Letters of Credit; provided,
however, that for any of the foregoing to be included as an “Obligation” for purposes of a
distribution under Section 5.6.1, the applicable Secured Party and Obligor must have previously
provided written notice to Agent of (i) the existence of such Bank Product, and (ii) the maximum
Dollar amount of obligations arising thereunder to be included as a
Bank Product Reserve (“Bank
Product Amount”), and (iii) confirmation that a “market to market” methodology was used by the
applicable Bank Product Provider in determining the Bank Product Amount. The Bank Product Amount
may be changed from time to time upon written notice to Agent by the applicable Bank Product
Provider and Obligor.



     Bank Product Agreements: those agreements entered into from time to time by any Borrower or
Subsidiary with a Bank Product Provider in connection with the obtaining of any of the Bank
Products.



     Bank Product Amount: as defined in the definition of Bank Product.



     Bank Product Collateralization: providing cash collateral (pursuant to documentation
reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank Product Providers
(other than providers under Hedging Agreements) in an amount determined by Agent as sufficient to
satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product
Debt (other than obligations under Hedging Agreements).



     Bank Product Debt: (a) all Debt, obligations, liabilities, reimbursement obligations, fees, or
expenses owing by any Obligor or Subsidiary to any Bank Product Provider pursuant to or evidenced
by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or
indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) any
and all Debt, obligations or liabilities, whether absolute or contingent, due or to become due, now
existing or hereafter arising, of any Obligor or Subsidiary arising under, owing pursuant to, or
existing in respect of Hedging Agreements entered into with one or more of the Bank Product
Providers, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product
Provider as a result of Agent or such Lender purchasing participations from, or executing
guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to
the Bank Products provided by such Bank Product Provider to any
Obligor or Subsidiary; provided,
however, in order for any item described in clauses (a), (b), or (c) above, as applicable, to
constitute “Bank Product Debt”, (i) if the applicable Bank Product Provider is Wells Fargo or its
Affiliates, then, if requested by Agent, Agent shall have received a Bank Product Provider Letter
Agreement within 10 days after the date of such request, or (ii) if the applicable Bank Product
Provider is any other Person, the applicable Bank Product must have been provided on or after the
Closing Date and Agent shall have received a Bank Product Provider Letter Agreement within 10 days
after the date of the provision of the applicable Bank Product to any Obligor or Subsidiary.



     Bank Product Provider: a Lender or an Affiliate of a Lender that provides Bank Products to a
Borrower.



     Bank Product Provider Letter Agreement: a letter agreement in substantially the form attached
hereto as Exhibit B, in form and substance satisfactory to Agent, duly executed by the applicable
Bank Product Provider, Borrower Agent, and Agent.



     Bank Product Reserve: as of any date of determination, the aggregate Dollar amount of reserves
established by Agent and Co-Collateral Agent from time to time in its reasonable discretion (based
upon the Bank Product Provider’s reasonable determination of their credit exposure to Borrowers and
their



-4-









 




respective Subsidiaries in respect of Bank Product Debt then provided or outstanding) which shall
be at least equal to the sum of all Bank Product Amounts.




     Bankruptcy Code: Title 11 of the United States Code.



     BAS: Banc of America Securities LLC, a Delaware limited liability company, and its successors
and assigns.



     Base Rate: for any day, a per annum rate equal to the greater of (a) the Prime Rate for such
day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) LIBOR for a 30 day interest period
as determined on such day, plus 1.0%.



     Base Rate Loan: a Loan that bears interest based on the Base Rate.



     Blue Water Domestic Vessel: any Vessel owned by a Borrower that is (a) used solely between
ports within the jurisdiction of a United States District Court (including District Courts sitting
in United States territories) and (b) identified as a Blue Water Domestic Vessel on Schedule 1.1B,
as amended in accordance with Section 8.4.4.



     Blue Water Domestic Vessel Formula Amount: the lesser of (a) 100% of the net book value of
Eligible Blue Water Domestic Vessels and (b) 85% of the NOLV Percentage of the Value of Eligible
Blue Water Domestic Vessels.



     Blue Water International Vessel: any Vessel owned by a Borrower that (a) travels to ports
outside the jurisdiction of a United States District Court (including District Courts sitting in
United States territories) and (b) is identified as a Blue Water International Vessel on Schedule
1.1B, as amended in accordance with Section 8.4.4.



     Blue Water International Vessel Formula Amount: the lesser of (a) 100% of the net book value
of Eligible Blue Water International Vessels, (b) $20,000,000 and (c) 25% of the NOLV Percentage of
the Value of Eligible Blue Water International Vessels.



     Board of Directors: the board of directors of a corporation or equivalent managing or
governing body of any other type of business entity.



     Board of Governors: the Board of Governors of the Federal Reserve System.



     Borrowed Money: with respect to any Obligor, without duplication, its (a) Debt that (i) arises
from the lending of money by any Person to such Obligor, (ii) is evidenced by notes, drafts, bonds,
debentures, credit documents or similar instruments, (iii) accrues interest or is a type upon which
interest charges are customarily paid (excluding trade payables owing in the Ordinary Course of
Business), or (iv) was issued or assumed as full or partial payment for Property; (b) Capital
Leases; (c) reimbursement or indemnification obligations with respect to letters of credit
(including the Letters of Credit irrespective of whether contingent) or with respect to
Reimbursement Undertakings; and (d) guaranties of any Debt of the foregoing types owing by another
Person.



     Borrowers: has the meaning specified therefor in the preamble of this Agreement together with
each other Person who becomes a Borrower pursuant to Section 10.19, individually and collectively,
jointly and severally.



     Borrower Agent: as defined in Section 4.4.



-5-









 





     Borrowing: a group of Loans of one Type that are made on the same day or are converted into
Loans of one Type on the same day.



     Borrowing Base: on any date of determination, an amount equal to the lesser of (a) the
aggregate amount of Commitments, minus the LC Reserve,
minus the lesser of (i) the Availability
Reserve and (ii) the sum of (x) $3,000,000 plus (y) the amount by which the Bank Product Amount
exceeds $5,000,000; or (b) the sum of the Accounts Formula
Amount, plus the Brown Water Vessel
Formula Amount, plus the Blue Water Domestic Vessel Formula
Amount, plus the Blue Water
International Vessel Formula Amount, plus the Fuel Inventory Formula
Amount, minus the Availability
Reserve, minus the LC Reserve.



     Borrowing Base Certificate: a certificate, in form and substance reasonably satisfactory to
Agent, by which Borrowers certify the calculation of the Borrowing Base.



     Brown Water Vessel: any Vessel owned by a Borrower that is (a) used in the inland waterways of
the continental United States of America and (b) identified as a Brown Water Vessel on Schedule
1.1B, as amended in accordance with Section 8.4.4.



     Brown Water Vessel Formula Amount: the lesser of (a) 100% of the net book value of Eligible
Brown Water Vessels and (b) 85% of the NOLV Percentage of the Value of Eligible Brown Water
Vessels.



     Business Day: any day other than a Saturday, Sunday or other day on which commercial banks are
authorized to close under the laws of, or are in fact closed in, North Carolina and New York, and
if such day relates to a LIBOR Loan, any such day on which dealings in Dollar deposits are
conducted between banks in the London interbank Eurodollar market.



     Capital Expenditures: all liabilities incurred, expenditures made or payments due (whether or
not made) by a Borrower or Restricted Subsidiary for the acquisition of any fixed assets, or any
improvements, replacements, substitutions or additions thereto with a useful life of more than one
year, including the principal portion of Capital Leases.



     Capital Lease: any lease that is required to be capitalized for financial reporting purposes
in accordance with GAAP as in effect on the Closing Date.



     Capital Lease Obligations: with respect to any Person, the obligations of such Person to pay
rent or other amounts under any Capital Lease.



     Cash Collateral: cash, and any interest or other income earned thereon, that is delivered to
Agent to Cash Collateralize any Obligations.



     Cash Collateral Account: a demand deposit, money market or other account established by Agent
at such financial institution as Agent may select in its discretion, which account shall be subject
to Agent’s Liens for the benefit of Secured Parties.



     Cash Collateralize: the delivery of cash to Agent, as security for the payment of Obligations,
in an amount equal to (a) with respect to LC Obligations, 105% of the aggregate LC Obligations, and
(b) with respect to Bank Products, in an amount determined by Agent as sufficient to satisfy the
reasonably estimated credit exposure with respect to the then existing Bank Product Debt (other
than obligations under Hedging Agreements), and (c) with respect to any inchoate, contingent or
other Obligations, Agent’s good faith estimate of the amount due or to become due, including all
fees and other amounts relating to such Obligations. “Cash Collateralization” has a correlative
meaning.



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     Cash Dominion Trigger Period: the period (a) commencing on the day that an Event of Default
occurs, or Availability at any time is less than the greater of (i) $27,000,000 and (ii) 20% of the
aggregate Commitments at such time; and (b) continuing until, during the preceding 45 consecutive
days, no Event of Default has existed and Availability at all times has been greater than the
greater of (i) $27,000,000 and (ii) 20% of the aggregate Commitments at such time.



     Cash Equivalents: (a) marketable obligations issued or unconditionally guaranteed by, and
backed by the full faith and credit of, the United States government, maturing within 12 months of
the date of acquisition; (b) certificates of deposit, time deposits and bankers’ acceptances
maturing within 12 months of the date of acquisition, and overnight bank deposits, in each case
which are issued by a commercial bank organized under the laws of the United States or any state or
district thereof, rated A-1 (or better) by S&P or P-1 (or better) by Moody’s at the time of
acquisition, and (unless issued by a Lender) not subject to offset rights; (c) repurchase
obligations with a term of not more than 30 days for underlying investments of the types described
in clauses (a) and (b) entered into with any bank meeting the qualifications specified in clause
(b); (d) commercial paper rated A-1 (or better) by S&P or P-1 (or better) by Moody’s, and maturing
within nine months of the date of acquisition; and (e) shares of any money market fund that has
substantially all of its assets invested continuously in the types of investments referred to
above, has net assets of at least $500,000,000 and is rated A-1 (or better) by S&P or P-1 (or
better) by Moody’s at the time of acquisition.



     Cash Management Services: any services provided from time to time by any Lender or any of its
Affiliates to any Borrower or Subsidiary in connection with operating, collections, payroll, trust,
or other depository or disbursement accounts, including automated clearinghouse, e-payable,
electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository,
information reporting, lockbox and stop payment services.



     CERCLA: the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. §
9601 et seq.).



     Change in Law: the occurrence, after the date hereof, of (a) the adoption or taking effect of
any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in
the administration, interpretation or application thereof by any Governmental Authority; or (c) the
making or issuance of any request, guideline or directive (whether or not having the force of law)
by any Governmental Authority.



     Change of Control: (a) at any time prior to a Qualifying IPO, the Permitted Holders cease to
(x) own and control, in the aggregate, directly or indirectly, at least a majority of the voting
power of the Voting Equity Interests of all Borrowers or their direct or indirect parents or (y)
have the power, directly or indirectly, to appoint a majority of the Board of Directors of each of
the Obligors or (b) at any time after a Qualifying IPO, any Person or “group” (within the meaning
of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended), other than the
Permitted Holders, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended), directly or indirectly, of 35% or more of the
outstanding voting power of the Voting Equity Interests of the Borrowers or their direct or
indirect parents and such percentage of the outstanding voting power of the Voting Equity Interests
is equal to or more than the voting power of the Voting Equity Interests of the Borrowers or their
direct or indirect parents owned, in the aggregate, directly or indirectly, by the Permitted
Holders.



     Claims: all liabilities, obligations, losses, damages, penalties, judgments, proceedings,
interest, costs and expenses of any kind (including remedial response costs, reasonable attorneys’
fees and Extraordinary Expenses) at any time (including after Full Payment of the Obligations,
resignation or replacement of Agent, or replacement of any Lender) incurred by or asserted against
any Indemnitee in



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any way relating to (a) any Loans, Letters of Credit, Loan Documents, or the use thereof or
transactions relating thereto, (b) any action taken or omitted to be taken by any Indemnitee in
connection with any Loan Documents, (c) the existence or perfection of any Liens, or realization
upon any Collateral, (d) exercise of any rights or remedies under any Loan Documents or Applicable
Law, or (e) failure by any Obligor to perform or observe any terms of any Loan Document, in each
case including all costs and expenses relating to any investigation, litigation, arbitration or
other proceeding (including an Insolvency Proceeding or appellate proceedings), whether or not the
applicable Indemnitee is a party thereto.




     Closing Date: as defined in Section 6.1.



     Code: the Internal Revenue Code of 1986, as amended.



     Collateral: all Property described in Section 7.1, all Property described in any Security
Documents as security for any Obligations, and all other Property that now or hereafter secures (or
is intended to secure) any Obligations.



     Commitment: for any Lender, its obligation to make Loans and to participate in LC Obligations
up to the maximum principal amount shown on Schedule 1.1A, or as hereafter determined pursuant to
each Assignment and Acceptance to which it is a party.
“Commitments” means the aggregate amount of
such commitments of all Lenders.



     Commitment Termination Date: the earliest to occur of (a) the Revolver Termination Date; (b)
the date on which Borrowers terminate the Commitments pursuant to Section 2.1.4; or (c) the date on
which the Commitments are terminated pursuant to Section 11.2.



     Compliance Certificate: a certificate, in form and substance reasonably satisfactory to Agent,
by which Borrowers certify compliance or noncompliance with Sections 10.2.3 and 10.3, list all
outstanding Bank Products and calculate the applicable Level for the Applicable Margin.



     Contingent Obligation: any obligation of a Person arising from a guaranty, indemnity or other
assurance of payment or performance of any Debt (“primary
obligations”) of another obligor
(“primary obligor”) in any manner, whether directly or indirectly, including any obligation of such
Person under any (a) guaranty, endorsement, co-making or sale with recourse of an obligation of a
primary obligor; (b) obligation to make take-or-pay or similar payments regardless of
nonperformance by any other party to an agreement; and (c) arrangement (i) to purchase any primary
obligation or security therefor, (ii) to supply funds for the purchase or payment of any primary
obligation, (iii) to maintain or assure working capital, equity capital, net worth or solvency of
the primary obligor, (iv) to purchase Property or services for the purpose of assuring the ability
of the primary obligor to perform a primary obligation, or (v) otherwise to assure or hold harmless
the holder of any primary obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or,
if less, the maximum amount for which such Person may be liable under the instrument evidencing the
Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated
liability with respect thereto.



     Covenant Trigger Period: the period (a) commencing on the day that an Event of Default occurs,
or Availability at any time is less than the greater of (i) $20,250,000 and (ii) 15% of the
aggregate Commitments at such time; and (b) continuing until, during the preceding 60 consecutive
days, no Event of Default has existed and Availability at all times has been greater than the
greater of (i) $20,250,000 and (ii) 15% of the aggregate Commitments at such time.



     CWA:
the Clean Water Act (33 U.S.C. §§ 1251 et seq.).



-8-









 





     Daily Balance: as of any date of determination and with respect to any Obligation, the amount
of such Obligation owed at the end of such day.



     Debt: as applied to any Person, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances (other than customer deposits and advances
in the ordinary course of business) of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, including, without limitation, the Second Lien
Notes, (c) all obligations of such Person upon which interest charges are customarily paid
(excluding trade accounts payable on customary trade terms and accrued obligations incurred in the
ordinary course of business), (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the ordinary course of
business), (f) all Debt of others secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property, valued at the fair market
value of the assets subject to such Lien (in the case of non-recourse Debt) owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed, (g) all Contingent
Obligations of such Person with respect to Debt of others, (h) all Capital Lease Obligations of
such Person, (i) all net obligations of such Person in respect of Hedging Agreements, determined on
a marked-to-market basis in accordance with GAAP, (j) all obligations of such Person as an account
party in respect of letters of credit and (k) all obligations of such Person as an account party in
respect of bankers’ acceptances. The Debt of any Person shall include the Debt of any partnership
in which such Person is a general partner, except to the extent that the terms of such Debt provide
otherwise.



     Default: an event or condition that, with the lapse of time or giving of notice, would
constitute an Event of Default.



     Defaulting Lender: any Lender that (a) has failed to fund any portion of the Loans,
participations in LC Obligations or participations in Swingline Loans required to be funded by it
hereunder within one (1) Business Day of the date required to be funded by it hereunder, or has
otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by
it hereunder within one (1) Business Day of the date when due, (b) has notified Agent, any Lender,
an Issuing Bank, or any Borrower or Guarantor in writing that it will not or does not intend to
comply with any of its funding obligations under this Agreement or has made a public statement to
the effect that it will not or does not intend to comply with its funding obligations under this
Agreement or under other agreements in which it has agreed to make loans or provide other financial
accommodations, (c) has failed, within five (5) Business Days after request by Agent or Borrower
Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations
to fund prospective Loans and participations in then outstanding LC Obligations and Swingline
Loans; provided, that any such Lender shall cease to be a Defaulting Lender under this clause (c)
upon receipt of such confirmation by Agent and Borrower Agent, or (d) becomes or is insolvent or
has a parent company that has become or is insolvent or becomes the subject of a bankruptcy or
insolvency proceeding, or has a receiver, conservator, trustee or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence
in any such proceeding or appointment and has not obtained all required orders, approvals or
consents of any court or other Governmental Authority to continue to fulfill its obligations
hereunder, in form and substance reasonably satisfactory to Agent and Borrower Agent.



     Defaulting Lender Rate: (a) for the first 3 days from and after the date the relevant payment
is due, the Base Rate, and (b) thereafter, the interest rate then applicable to Loans that are Base
Rate Loans (inclusive of the Applicable Margin applicable thereto).



     Default Rate: for any Obligation (including, to the extent permitted by law, interest not paid
when due), 2% plus the interest rate otherwise applicable thereto.



-9-









 





     Deposit Account Control Agreements: the Deposit Account control agreements to be executed by
each institution maintaining a Deposit Account for a Borrower, in favor of Agent, for the benefit
of Secured Parties, as security for the Obligations.



     Distribution: any declaration or payment of a distribution, interest or dividend on any Equity
Interest (other than payment-in-kind); any distribution, advance or repayment of Debt to a holder
of Equity Interests (provided, that, if any direct or indirect holder of Equity Interests of any of
the Obligors shall be a holder of Second Lien Notes, no payment with respect to the Second Lien
Notes permitted hereunder shall constitute a Distribution to such Person); or any purchase,
redemption, or other acquisition or retirement for value of any Equity Interest.



     Dollars: lawful money of the United States.



     Dominion Account: a special account established by Borrowers at Bank of America or another
bank reasonably acceptable to Agent, for which Borrowers have executed a deposit account control
agreement in favor of Agent, for the ratable benefit of Lenders, and over which Agent shall
exclusive control for withdrawal purposes.



     EBITDA: determined on a consolidated basis for Borrowers and Restricted Subsidiaries, net
income, plus (a) the sum, without duplication, of (i) to the extent deducted in computing such net
income, the sum, without duplication, of (x) all federal, state, local and foreign income taxes
(whether paid or reserved), (y) interest expense and (z) depreciation, depletion, amortization of
intangibles and other non-cash charges or non-cash losses (including, but not limited to, non-cash
transaction expenses, the amortization of debt discounts, original issue discounts, losses from
impairment of intangible assets, translation gains or losses, and non-cash compensation expense),
(ii) all fees and expenses associated with the transactions hereunder and the issuance of the
Second Lien Notes, including the expense associated with the amortization of deferred fees and
expenses, and all losses and expenses incurred in terminating any Hedging Agreements in connection
with the transactions hereunder, (iii) all net losses from any Hedging Agreements, to the extent
included in computing such net income (not to exceed, in any Fiscal Year commencing with the Fiscal
Year ending December 31, 2010, $5,000,000), (iv) to the extent actually incurred, cash severance
costs (not to exceed, in any Fiscal Year commencing with the Fiscal Year ending December 31, 2010,
$1,500,000), and (v) to the extent deferred and not actually
paid in cash, management fees, minus
(b) all net gains from any Hedging Agreements, to the extent included in computing such net income
(not to exceed $5,000,000) and any non-cash income or non-cash gains, all as determined on a
consolidated basis in accordance with GAAP.



     Eligible Account: an Account owing to a Borrower that arises in the Ordinary Course of
Business from the sale of goods or rendition of services, is payable in Dollars that Agent and
Co-Collateral Agent, in the exercise of their reasonable, good faith credit judgment determine to
be an Eligible Account. Without limiting the foregoing, no Account shall be an Eligible Account if
(a) it is unpaid for more than 90 days after the original invoice date, without giving effect to
any extension of payment referred to in clause (l); (b) 50% or more of the aggregate Dollar amount
of outstanding Accounts owing by the Account Debtor are not Eligible Accounts under the foregoing
clause; (c) (i) with respect to Accounts owing by Tampa Electric Co., (A) at any time at which the
corporate debt of Tampa Electric Co. shall be rated greater than or equal to B by S&P or B2 by
Moody’s, when aggregated with other Accounts owing by Tampa Electric Co. at such time, it exceeds
40% and (B) at all other times, when aggregated with other Accounts owing by Tampa Electric Co. at
such time, it exceeds 30%, in each case, of the aggregate Dollar amount of Eligible Accounts (or
such higher percentage as Agent and Co-Collateral Agent may establish for Tampa Electric Co. from
time to time), but only to the extent of such excess, and (ii) with respect to all other Accounts,
when aggregated with other Accounts owing by the Account Debtor, it exceeds 20% of the aggregate
Dollar amount of Eligible Accounts (or such higher percentage as Agent and Co-Collateral Agent may
establish for the Account Debtor from time to time), but only to the extent of such



-10-









 




excess; (d) it does not conform with a covenant or representation herein; (e) it is owed by an
Account Debtor to which any Borrower or Subsidiary is indebted in any way (including accrued
liabilities), or which is subject to any right of setoff or recoupment by the Account Debtor,
unless the Account Debtor has entered into an agreement reasonably acceptable to Agent to waive
setoff rights, or if the Account Debtor thereon has disputed liability, but in each such case only
to the extent of such indebtedness, setoff, recoupment, dispute, or claim; (f) an Insolvency
Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed,
has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs;
provided, that Agent and Co-Collateral Agent in their sole discretion may determine that such
Account shall not be ineligible to the extent payment thereof has been authorized pursuant to a
final, nonappealable judicial order or decree; (g) the Account Debtor is organized or has its
principal offices outside the United States or Canada except in each case to the extent that such
Account is insured or is secured or payable by a letter of credit the terms of which are reasonably
satisfactory to Agent in the reasonable exercise of its discretion and which is in the possession
of Agent and which is subject to a first priority Lien in favor of Agent for the benefit of
Lenders; (h) it is owing by a Governmental Authority, unless the Account Debtor is the United
States or any department, agency or instrumentality thereof; (i) it is not subject to a duly
perfected, first priority Lien in favor of Agent, or is subject to any other Lien (other than Liens
pursuant to Vessel Lease Agreements); (j) except for the invoices referred to in the parenthetical
in clause (o) of this definition (which shall not be excluded by this clause (j)), the goods giving
rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise
to it have not been accepted by the Account Debtor, or it otherwise does not represent a final
sale; (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to
judgment; (l) its payment has been extended without the consent of Agent and Co-Collateral Agent
(unless such extended period together with any additional period during which payment has not been
received shall not exceed 90 days from the date of the original invoice therefor), the Account
Debtor has made a partial payment, or it arises from a sale on a cash-on-delivery basis; (m) it
arises from a sale to an Affiliate other than in the Ordinary Course of Business, upon fair and
reasonable terms no less favorable than would be obtained in a comparable arm’s-length transaction
or, when aggregated with all other Accounts arising from sales to Affiliates (other than ION Carbon
& Minerals LLC), it exceeds $1,000,000, but only to the extent of such excess; (n) it arises from a
sale on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment, or other
repurchase or return basis; (o) it represents a progress billing (it being understood that, for the
purposes hereof, “progress billing” does not include any invoice for goods sold or leased or
services rendered under a contract or agreement pursuant to which the Account Debtor’s obligation
to pay such invoice is conditioned solely upon the delivery or performance by the relevant
Borrower, in the Ordinary Course of Business of such Borrower, of the goods or services which are
subject to such contract or agreement) or retainage; (p) it includes a billing for interest, fees
or late charges, but ineligibility shall be limited to the extent thereof; or (q) it arises from a
retail sale to a Person who is purchasing for personal, family or household purposes. In
calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90
days old will be excluded.




     Eligible Assignee: a Person that is (a) a Lender, U.S.-based Affiliate of a Lender or Approved
Fund; (b) when an Event of Default has not occurred and is not continuing, any other financial
institution approved by Agent and Borrower Agent (which approval by Borrower Agent shall not be
unreasonably withheld or delayed, and shall be deemed given if no objection is made within five
Business Days after notice of the proposed assignment; it being acknowledged that Borrowing Agent’s
disapproval of any proposed Eligible Assignee shall not be deemed to be unreasonable if such
Eligible Assignee or any of its Affiliates are engaged, directly or indirectly, in marine
transportation services or dry bulk terminal services in direct competition with any of the
Borrowers), that is organized under the laws of the United States or any state or district thereof,
has total assets in excess of $3,000,000,000, is a commercial bank, insurance company, investment
or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under
the Securities Act of 1933, as amended) and which extends credit or buys loans in the ordinary
course of business, and whose
becoming an assignee would not constitute a prohibited transaction under Section 4975 of the
Code or any other Applicable Law; or (c) during the continuance of



-11-









 




any Event of Default, any Person acceptable to Agent in its discretion. Notwithstanding anything to
the contrary set forth herein (x) in no event shall any Obligor or any of Greenstreet Equity
Partners, LLC, JCP United Maritime Holding LLC, AMCIC Maritime AIV, LLC or First Reserve Fund XI,
L.P. be an Eligible Assignee; and (y) if any of Greenstreet Equity Partners, LLC, JCP United
Maritime Holding LLC, AMCIC Maritime AIV, LLC or First Reserve Fund XI, L.P. assign any of their
respective Commitments to any of their respective Affiliates (other than an assignment by JCP
United Maritime Holding LLC to Jefferies Finance LLC, Jefferies Group, Inc. and their respective
Affiliates (other than Jefferies Capital Partners and its Subsidiaries)) then, for the purposes of
voting as contemplated under Seciton 14.1, the Commitment of any such Affiliate shall be deemed to
be $0.




     Eligible Blue Water Domestic Vessel: any Blue Water Domestic Vessel that is (a) duly
documented under the laws of the United States of America with coastwise endorsement, (b) in
seaworthy condition and in regular commercial service, subject to periods of scheduled dry-docking
and other routine maintenance, and (c) subject to a first priority ship mortgage Lien in favor of
Security Trustee for the benefit of Secured Parties.



     Eligible Blue Water International Vessel: any Blue Water International Vessel that that is (a)
duly documented under the laws of the United States of America with coastwise endorsement, (b) in
seaworthy condition and in regular commercial service, subject to periods of scheduled dry-docking
and other routine maintenance, and (c) subject to a first priority ship mortgage Lien in favor of
Security Trustee for the benefit of Secured Parties.



     Eligible Brown Water Vessel: any Brown Water Vessel that that is (a) duly documented under the
laws of the United States of America with coastwise endorsement, (b) in seaworthy condition and in
regular commercial service, subject to periods of scheduled dry-docking and other routine
maintenance, and (c) subject to a first priority ship mortgage Lien in favor of Security Trustee
for the benefit of Secured Parties.



     Eligible Fuel Inventory: Inventory consisting of fuel owned by a Borrower that Agent and
Co-Collateral Agent, in the exercise of their reasonable, good faith credit judgment, deem to be
Eligible Fuel Inventory. Without limiting the foregoing, no fuel shall be Eligible Fuel Inventory
unless it (a) meets all standards imposed by any Governmental Authority; (b) conforms with the
covenants and representations herein; (c) is subject to Agent’s duly perfected, first priority
Lien, and no other Lien; (d) is not subject to any warehouse receipt or negotiable Document; and
(e) is not located on leased premises or in the possession of a warehouseman, processor, repairman,
mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has
delivered a Lien Waiver or an appropriate reserve has been established.



     Eligible Vessels: collectively, Eligible Blue Water Domestic Vessels, Eligible Blue Water
International Vessels and Eligible Brown Water Vessels.



     Enforcement Action: any action to enforce any Obligations or Loan Documents or to realize upon
any Collateral (whether by judicial action, self-help, notification of Account Debtors, exercise of
setoff or recoupment, or otherwise).



     Environmental Agreement: each agreement of Borrowers with respect to any Real Estate subject
to a Mortgage, pursuant to which Borrowers agree to indemnify and hold harmless Agent and Lenders
from liability under any Environmental Laws, as set forth more fully in any such Environmental
Agreement.



     Environmental Laws: all Applicable Laws (including all programs, permits and guidance
promulgated by applicable regulatory agencies), relating to public health (but excluding
occupational



-12-









 




safety and health, to the extent regulated by OSHA) or the protection or pollution of the
environment, including CERCLA, RCRA and CWA.




     Environmental Notice: a notice (whether written or oral) from any Governmental Authority or
other Person of any alleged noncompliance with, investigation of an alleged violation of,
litigation relating to, or potential fine or liability under any Environmental Law, or with respect
to any Environmental Release, environmental pollution or hazardous materials, including any
complaint, summons, citation, order, claim, demand or request for correction, remediation or
otherwise.



     Environmental Release: a release as defined in CERCLA or under any other Environmental Law.



     Equity
Interest: the interest of any (a) shareholder in a corporation; (b) partner in a
partnership (whether general, limited, limited liability or joint venture); (c) member in a limited
liability company; or (d) other Person having any other form of equity security or ownership
interest.



     ERISA: the Employee Retirement Income Security Act of 1974.



     ERISA Affiliate: any trade or business (whether or not incorporated) under common control with
an Obligor within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the Code).



     ERISA Event: (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any
Obligor or ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by any Obligor or ERISA Affiliate from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the
failure by any Obligor or ERISA Affiliate to meet any funding obligations with respect to any
Pension Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (g) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor
or ERISA Affiliate.



     Event of Default: as defined in Section 11.



     Excess Land: real Property owned or leased by any Obligor which is located near or adjacent to
the Terminal and not used by Obligors in the Ordinary Course of Business.



     Excluded Capital Contribution: any direct or indirect capital contribution made after the
Closing Date to any Obligor; provided, that such capital contribution is made substantially
contemporaneously with, and the proceeds thereof are used exclusively to, make Investments or
Distributions or prepay Debt.



     Excluded Equity: means any Voting Stock in excess of 65% of the total outstanding Voting Stock
of any Foreign Subsidiary. For the purposes of this definition,
“Voting Stock” means, as to any
issuer, the issued and outstanding shares of each class of capital stock or other ownership
interests of such issuer entitled to vote (within the meaning of Treasury Regulations §
1.956-2(c)(2)).



     Excluded Tax: with respect to Agent, any Lender, any Issuing Bank or any other recipient of a
payment to be made by or on account of any Obligation, (a) taxes imposed on or measured by its
overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the



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jurisdiction (or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located; (b) any branch profits tax imposed by the United States or
any similar tax imposed by any other jurisdiction in which a Borrower is located; and (c) in the
case of any Lender, any withholding tax that is imposed on amounts payable to such Lender at the
time such Lender becomes a party to this Agreement (or designates a new Lending Office) or, in the
case of a Foreign Lender, any withholding tax attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section 5.10, except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new Lending Office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax.




     Existing Fuel Hedges: those fuel hedges described on Schedule 1.1.F.



     Existing Letters of Credit: those letters of credit described on Schedule 1.1G.



     Existing Vessel Lease Agreements: collectively, (a) Master Bareboat Charter Agreement, dated
April 28, 2006, between U.S. Bancorp Equipment Finance, Inc. and TECO Barge Line, Inc., as amended,
(b) Demise Charter, dated December 21, 2001, between U.S. Bank, National Association (successor to
State Street Bank and Trust Company of Connecticut, National Association), as trustee of GTC
Connecticut Statutory Trust, and TECO Ocean Shipping Inc. (f/k/a Gulfcoast Transit Company), as
amended, (c) Bareboat Subcharter Agreement, dated February 7, 1985, between GATX Third Aircraft
Corporation (successor to Merchants Grain & Transportation, Inc. and TECO Towing Company, as
amended, and (d) Bareboat Barge Charter Agreement, dated September 26, 2005, between PML, Inc. and
TECO Barge Line, Inc., as amended.



     Extraordinary Expenses: all costs, expenses or advances that Agent may incur during a Default
or Event of Default, or during the pendency of an Insolvency Proceeding of an Obligor, including
those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, Vessel
Appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other
preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding
(whether instituted by or against Agent, any Lender, any Obligor, any representative of creditors
of an Obligor or any other Person) in any way relating to any Collateral (including the validity,
perfection, priority or avoidability of Agent’s or Security Trustee’s Liens with respect to any
Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or
other Claims; (c) the exercise, protection or enforcement of any rights or remedies of Agent in, or
the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of any taxes, charges
or Liens with respect to any Collateral; (e) any Enforcement Action; (f) negotiation and
documentation of any modification, waiver, workout, restructuring or forbearance with respect to
any Loan Documents or Obligations; and (g) Protective Advances. Such costs, expenses and advances
include transfer fees, Other Taxes, storage fees, insurance costs, permit fees and utility
reservation and standby fees, and reasonable legal fees, appraisal fees, Vessel Appraisal fees,
brokers’ fees and commissions, auctioneers’ fees and commissions, accountants’ fees, environmental
study fees, wages and salaries paid to employees of any Obligor or independent contractors in
liquidating any Collateral, and travel expenses.



     Federal Funds Rate: (a) the weighted average of interest rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal funds brokers on the
applicable Business Day (or on the preceding Business Day, if the applicable day is not a Business
Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no
such rate is published on the next Business Day, the average rate (rounded up, if necessary, to the
nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as
determined by Agent.



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     Fee Letter: any fee letter agreement among Agent, BAS, WFF, Jefferies, or any of them, and
Borrowers.



     Finance Corp.: United Maritime Group Finance Corp., a Delaware corporation.



     Fiscal Quarter: each period of three months, commencing on the first day of a Fiscal Year.



     Fiscal Year: the fiscal year of Borrowers and Subsidiaries for accounting and tax purposes,
ending on December 31 of each year.



     Fixed Charge Coverage Ratio: the ratio, determined on a consolidated basis for Borrowers and
Restricted Subsidiaries for the most recent four Fiscal Quarters, of
(a) EBITDA minus Capital
Expenditures (except those financed with Borrowed Money other than Loans) and cash Distributions
paid in respect of tax obligations, to (b) Fixed Charges. For purposes of calculating the Fixed
Charge Coverage Ratio: if an Obligor makes any voluntary or mandatory prepayment, repurchase or
other voluntary discharge of Debt under the Second Lien Documents or Subordinated Debt during such
four Fiscal Quarter period, the Fixed Charge Coverage Ratio will be calculated giving pro forma
effect to such prepayment, repurchase or discharge as if it had occurred on the first day of the
applicable four Fiscal Quarter period.



     Fixed Charges: the sum of cash interest expense paid, scheduled principal payments made on
Borrowed Money, voluntary or mandatory prepayments of Debt under the Second Lien Documents and
Subordinated Debt, and Distributions made (other than cash Distributions paid in respect of tax
obligations).



     FLSA: the Fair Labor Standards Act of 1938.



     Foreign Lender: any Lender that is organized under the laws of a jurisdiction other than the
laws of the United States, or any state or district thereof.



     Foreign Plan: any employee benefit plan or arrangement (a) maintained or contributed to by any
Obligor or Subsidiary that is not subject to the laws of the United States; or (b) mandated by a
government other than the United States for employees of any Obligor or Subsidiary.



     Foreign Subsidiary: a Subsidiary of a Borrower organized outside the jurisdiction of the
United States.



     Four Leased UOS Vessels: four leased Vessels of Ocean currently named BARBARA KESSEL, Official
No. 583310, GAYLE EUSTACE, Official No. 587045, PEGGY PALMER, Official No. 641530, and MARY TURNER,
Official No. 646730.



     Fuel Inventory Formula Amount: 50% of the Value of Eligible Fuel Inventory.



     Full Payment: with respect to any Obligations (including the payment of any termination amount
then applicable (or which would or could become applicable as a result of the repayment of the
other Obligations) under Hedging Agreements provided by providers under Hedging Agreements) other
than (a) unasserted contingent indemnification Obligations, (b) any Bank Product Debt (other than
obligations under Hedging Agreements) that, at such time, are allowed by the applicable Bank
Product Provider to remain outstanding without being required to be repaid or Cash Collateralized,
and (c) any obligations under Hedging Agreements that, at such time, are allowed by the applicable
provider under Hedging Agreements to remain outstanding without being required to be repaid, (i),
the full cash payment thereof, including any interest, fees and other charges accruing during an
Insolvency Proceeding (whether or not




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allowed in the proceeding) (or (A) in the case of contingent obligations with respect to
Letters of Credit, providing Cash Collateralization in respect thereof, and (B) in the case of
obligations with respect to Bank Products (other than obligations under Hedging Agreements),
providing Cash Collateralization in respect thereof); and (ii) a release of any Claims of Obligors
against Agent, Lenders and Issuing Banks arising on or before the payment date. No Loans shall be
deemed to have been paid in full until all Commitments related to such Loans have expired or been
terminated.




     GAAP: generally accepted accounting principles in effect in the United States from
time to time.



     Governmental Approvals: all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and required reports to, all Governmental
Authorities.



     Governmental Authority: any federal, state, municipal, foreign or other governmental
department, agency, commission, board, bureau, court, tribunal, instrumentality, political
subdivision, or other entity or officer exercising executive, legislative, judicial, regulatory or
administrative functions for or pertaining to any government or court, in each case whether
associated with the United States, a state, district or territory thereof, or a foreign entity or
government.



     Group: as defined in the preamble to this Agreement.



     Guarantor Payment: as defined in Section 5.11.3.



     Guarantors: GS Maritime Intermediate Holding LLC, a Delaware limited liability
company, United Maritime Group Finance Corp., a Delaware corporation, UMG Towing, LLC, a Florida
limited liability company, U.S. United Bulk Logistics, LLC, a Delaware limited liability company,
U.S. United Ocean Holding, LLC, a Delaware limited liability company, U.S. United Ocean Holding II,
LLC, a Delaware limited company, each Restricted Subsidiary and each other Person who guarantees
payment or performance of any Obligations.



     Guaranty: each guaranty agreement executed by a Guarantor in favor of Agent.



     Hedging Agreement: an agreement relating to any swap, cap, floor, collar, option,
forward, cross right or obligation, or combination thereof or similar transaction, with respect to
interest rate, foreign exchange, currency, commodity, credit or equity risk.



     Indemnified Taxes: Taxes other than Excluded Taxes.



     Indemnitees: Agent Indemnitees, Lender Indemnitees, Issuing Bank Indemnitees and Bank
of America Indemnitees.



     Insolvency Proceeding: any case or proceeding commenced by or against a Person under
any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an
order for relief under the Bankruptcy Code, or any other insolvency, debtor relief or debt
adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator
or other custodian for such Person or any part of its Property; or (c) an assignment or trust
mortgage for the benefit of creditors.



     Intellectual Property: all intellectual and similar Property of a Person, including
inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets,
confidential or proprietary information, customer lists, know-how, software and databases; all
embodiments or fixations thereof and all related documentation, applications, registrations and
franchises; all licenses or other rights to use any of the foregoing; and all books and records
relating to the foregoing.



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     Intellectual Property Claim: any claim or assertion (whether in writing, by suit or
otherwise) that a Borrower’s or Subsidiary’s ownership, use, marketing, sale or distribution of any
Inventory, Equipment, Intellectual Property or other Property violates another Person’s
Intellectual Property.



     Intercreditor Agreement: the Intercreditor Agreement of even date herewith, between
Second Lien Agent and Agent, relating to the Debt arising under the Second Lien Notes.



     Interest Period: as defined in Section 3.1.3.



     Inventory: as defined in the UCC, including all goods intended for sale, lease,
display or demonstration; all work in process; and all raw materials, and other materials and
supplies of any kind that are or could be used in connection with the manufacture, printing,
packing, shipping, advertising, sale, lease or furnishing of such goods, or otherwise used or
consumed in a Borrower’s business (but excluding Equipment).



     Investment: any acquisition of all or substantially all assets of a Person; any
acquisition of record or beneficial ownership of any Equity Interests of a Person; or any advance
or capital contribution to or other investment in a Person.



     IRS: the United States Internal Revenue Service.



     Issuing Bank: Bank of America, an Affiliate of Bank of America or WFF or any other
Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lender’s
sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit or
Reimbursement Undertakings pursuant to Section 2.3. The Issuing Bank shall be a Lender.



     Issuing Bank Indemnitees: Issuing Banks and their respective officers, directors,
employees, Affiliates, agents and attorneys.



     Jefferies: Jefferies Finance LLC, a Delaware limited liability company, and its
successors and assigns.



     LC Conditions: the following conditions necessary for issuance of a Letter of Credit:
(a) each of the conditions set forth in Section 6 (except that Section 6.1 shall only be applicable
to Letters of Credit issued on the Closing Date); (b) after giving effect to such issuance, total
LC Obligations do not exceed the Letter of Credit Subline, no Overadvance exists and, if no Loans
are outstanding, the LC Obligations do not exceed the Borrowing Base (without giving effect to the
LC Reserve for purposes of this calculation); (c) after giving effect to such issuance, the Letter
of Credit Usage does not exceed the Borrowing Base less the outstanding amount of Loans (inclusive
of Swingline Loans), (d) the expiration date of such Letter of Credit is (i) no more than 365 days
from issuance, in the case of standby Letters of Credit, (ii) no more than 120 days from issuance,
in the case of documentary Letters of Credit, and (iii) at least 20 Business Days prior to the
Revolver Termination Date; (e) the Letter of Credit and payments thereunder are denominated in
Dollars; (f) the form of the proposed Letter of Credit is reasonably satisfactory to Agent and the
Issuing Bank or Underlying Issuer, as applicable; and (g) the proposed Letter of Credit is for
ordinary business purposes.



     LC Documents: all documents, instruments and agreements delivered by Borrowers or any
other Person to the Issuing Bank, Underlying Issuer or Agent in connection with issuance, amendment
or renewal of, or payment under, any Letter of Credit.



     LC Obligations: the sum (without duplication) of (a) all amounts owing by Borrowers
for any drawings under Letters of Credit including reimbursement or indemnification obligations
with respect to



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Reimbursement Undertakings or with respect to Letters of Credit (irrespective of whether
contingent); (b) the stated amount of all outstanding Letters of Credit; (c) all fees and other
amounts owing with respect to Letters of Credit; and (d) all debts, liabilities, or obligations
(including reimbursement obligations, irrespective of whether contingent) owing by Borrowers to an
Underlying Issuer now or hereafter arising from or in respect of Underlying Letters of Credit.




     LC Reserve: the aggregate of all LC Obligations, other than (a) those that have been
Cash Collateralized; and (b) if no Default or Event of Default exists, those constituting charges
owing to the Issuing Banks.



     Lender Group: each of the Lenders (including each Issuing Bank) and the Agent, or any
one or more of them.



     Lender Indemnitees: Lenders and their officers, directors, employees, Affiliates,
agents and attorneys.



     Lenders: as defined in the preamble to this Agreement, including Agent in its capacity
as a provider of Swingline Loans and any other Person who hereafter becomes a “Lender” pursuant to
an Assignment and Acceptance.



     Lending Office: the office designated as such by the applicable Lender at the time it
becomes party to this Agreement or thereafter by notice to Agent and Borrower Agent.



     Letter of Credit: any standby or documentary letter of credit issued by an Issuing
Bank for the account of a Borrower, any standby or documentary letter of credit issued by
Underlying Issuer for the account of a Borrower, or any indemnity, guarantee, exposure transmittal
memorandum or similar form of credit support issued by Agent, an Issuing Bank, or Underlying Issuer
for the benefit of a Borrower.



     Letter of Credit Disbursement: a payment made by a Issuing Bank or Underlying Issuer
pursuant to a Letter of Credit.



     Letter of Credit Subline: $10,000,000.



     Letter of Credit Usage: as of any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit.



     Leverage Ratio: the ratio, determined as of the end of any Fiscal Quarter, of (a)
Borrowed Money (other than Contingent Obligations) of Borrowers and Restricted Subsidiaries as of
the last day of such quarter, to (b) EBITDA for the four Fiscal Quarters then ending.



     LIBOR: for any Interest Period with respect to a LIBOR Loan, the per annum rate of
interest (rounded upward, if necessary, to the nearest 1/16th of 1%), determined by Agent at
approximately 11:00 a.m. (London time) two Business Days prior to commencement of such Interest
Period, for a term comparable to such Interest Period, equal to (a) the British Bankers Association
LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source
designated by Agent); or (b) if BBA LIBOR is not available for any reason, the interest rate at
which Dollar deposits in the approximate amount of the LIBOR Loan would be offered by Bank of
America’s London branch to major banks in the London interbank Eurodollar market. If the Board of
Governors imposes a Reserve Percentage with respect to LIBOR deposits, then LIBOR shall be the
foregoing rate, divided by 1 minus the Reserve Percentage.



     LIBOR Loan: a Loan that bears interest based on LIBOR.



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     License: any license or agreement under which an Obligor is authorized to use
Intellectual Property in connection with any manufacture, marketing, distribution or disposition of
Collateral, any use of Property or any other conduct of its business.



     Licensor: any Person from whom an Obligor obtains the right to use any Intellectual
Property.



     Lien: any Person’s interest in Property securing an obligation owed to, or a claim by,
such Person, whether such interest is based on common law, statute or contract, including liens,
security interests, pledges, hypothecations, statutory trusts, reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases, and other
title exceptions and encumbrances affecting Property.



     Lien Waiver: an agreement, in form and substance reasonably satisfactory to Agent, by
which (a) for any material Collateral located on leased premises, the lessor waives or subordinates
any Lien it may have on the Collateral, and agrees to permit Agent to enter upon the premises and
remove the Collateral or to use the premises temporarily to store or dispose of the Collateral; (b)
for any Collateral held by a warehouseman, processor, shipper, customs broker or freight forwarder,
such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any
Documents in its possession relating to the Collateral as agent for Agent, and agrees to deliver
the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or
bailee, such Person acknowledges Agent’s or Security Trustee’s Lien, waives or subordinates any
Lien it may have on the Collateral, and agrees to deliver the Collateral to Agent upon request; and
(d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to
Agent the right, vis-à-vis such Licensor, to enforce Agent’s or Security Trustee’s Liens with
respect to the Collateral, including the right to dispose of it with the benefit of the
Intellectual Property, whether or not a default exists under any applicable License.



     Loan: a loan made pursuant to Section 2.1, and any Swingline Loan, Overadvance Loan or
Protective Advance.



     Loan Account: the loan account established by each Lender on its books pursuant to
Section 5.8.



     Loan Documents: this Agreement, Other Agreements and Security Documents.



     Loan Year: each one year period commencing on the Closing Date and on each anniversary
of the Closing Date.



     Maritime and Cost to Complete Reserves: reserves established by Agent and
Co-Collateral Agent in the exercise of their reasonable, good faith credit judgment for necessaries
and other maritime liens, and the costs to complete transportation of cargo, in each case based
upon the categories set forth in the Borrowing Base Certificate under the heading “Maritime
Reserves” from time to time.



     Margin Stock: as defined in Regulation U of the Board of Governors.



     Material Adverse Effect: the effect of any event or circumstance that, taken alone or
in conjunction with other events or circumstances, (a) has or could be reasonably expected to have
a material adverse effect on the business, operations, Properties or condition (financial or
otherwise) of the Obligors, taken as a whole, on the value of the Collateral taken as a whole, on
the enforceability of any Loan Documents, or on the validity or priority of Agent’s or Security
Trustee’s Liens on Collateral having an aggregate value in excess of five percent (5%) of the
Borrowing Base; (b) impairs the ability of any Obligor to perform any obligations under the Loan
Documents, including repayment of any Obligations; or (c) otherwise impairs the ability of Agent,
Security Trustee or any Lender to enforce or



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collect any Obligations or to realize upon Collateral having an aggregate value in excess of five
percent (5%) of the Borrowing Base.




     Material Contract: any agreement or arrangement to which a Borrower or Subsidiary is
party (other than the Loan Documents) (a) that is deemed to be a material contract under any
securities law applicable to such Obligor, including the Securities Act of 1933; (b) for which
breach, termination, nonperformance or failure to renew could reasonably be expected to have a
Material Adverse Effect; or (c) that relates to Subordinated Debt, or Debt in an aggregate amount
of $5,000,000 or more.



     Material Obligor: any Obligor other than an Obligor whose assets and revenues do not
exceed 2% of the total assets and revenues of the Obligors.



     Moody’s: Moody’s Investors Service, Inc., and its successors.



     Mortgage: each mortgage, deed of trust or deed to secure debt pursuant to which a
Borrower grants to Agent, for the benefit of Secured Parties, a Lien, subject to Permitted Liens,
upon the Real Estate, as listed on Schedule 7.3.1, owned by such Borrower, as security for the
Obligations, substantially in the form of Exhibit E with such schedules and including such
provisions as shall be necessary to conform such document to applicable local law.



     Mortgaged Real Estate: the Real Estate subject to a Mortgage, as set forth on
Schedule 7.3.1.



     Multiemployer Plan: any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which any Obligor or ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     Negative Pledge Vessel Lease: means (a) Demise Charter, dated December 21, 2001,
between U.S. Bank, National Association (successor to State Street Bank and Trust Company of
Connecticut, National Association), as trustee of GTC Connecticut Statutory Trust, and TECO Ocean
Shipping Inc. (f/k/a Gulfcoast Transit Company), as amended, and (b) Bareboat Subcharter Agreement,
dated February 7, 1985, between GATX Third Aircraft Corporation (successor to Merchants Grain &
Transportation, Inc. and TECO Towing Company, as amended.



     Net Proceeds: with respect to an Asset Disposition, proceeds (including, when
received, any deferred or escrowed payments) received by a Borrower or Subsidiary in cash from such
disposition, net of (a) reasonable and customary costs and expenses actually incurred in connection
therewith, including legal fees and sales commissions; (b) amounts applied to repayment of Debt
secured by a Permitted Lien senior to Agent’s or Security Trustee’s Liens on Collateral sold; (c)
transfer or similar taxes and the Obligor’s good faith estimate of and reserve for income taxes
paid or payable in connection with such sale; and (d) reserves for indemnities, until such reserves
are no longer needed.



     New Vessel: as of any date of determination, any Vessel acquired by a Borrower within
180 days of the date of the date of the Permitted Sale-Leaseback Transaction to which such Vessel
is subject.



     NOLV Percentage: the percentage obtained by (a) dividing (x) the net orderly
liquidation value of Vessels, as set forth in the most recent Vessel Appraisal conducted pursuant
to Section 10.1.1(b), by (y) the net book value of Vessels, as set forth in the Borrower’s report
of Eligible Vessels submitted pursuant to Section 10.1.2(h) as of the same date as, or as close as
possible thereto, the applicable Vessel Appraisal, and (b) multiplying the result by 100.



     Notes: each Revolver Note or other promissory note executed by a Borrower to evidence
any Obligations.



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     Notice of Borrowing: a Notice of Borrowing to be provided by Borrower Agent to request
a Borrowing of Loans, in form reasonably satisfactory to Agent.



     Notice of Conversion/Continuation: a Notice of Conversion/Continuation to be provided
by Borrower Agent to request a conversion or continuation of any Loans as LIBOR Loans, in form
reasonably satisfactory to Agent.



     Obligations: all (a) principal of and premium, if any, on the Loans, (b) LC
Obligations and other obligations of Obligors with respect to Letters of Credit, (c) interest,
expenses, fees and other sums payable by Obligors under Loan Documents, (d) obligations of Obligors
under any indemnity for Claims, (e) Extraordinary Expenses, (f) Bank Product Debt, and (g) other
Debts, obligations and liabilities of any kind owing by Obligors pursuant to the Loan Documents,
whether now existing or hereafter arising, whether evidenced by a note or other writing, whether
allowed in any Insolvency Proceeding, whether arising from an extension of credit, issuance of a
letter of credit, acceptance, loan, guaranty, indemnification or otherwise, and whether direct or
indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.



     Obligor: each Borrower, Guarantor, or other Person that is liable for payment of any
Obligations or that has granted a Lien in favor of Agent on its assets to secure any Obligations.



     Obsolete Equipment: (a) Vessels and other Equipment that are damaged, obsolete or at
the end of their useful life, (b) Real Estate and other assets (not including any Accounts,
Inventory or Vessels) that are obsolete or no longer useful in the Ordinary Course of Business as
reasonably determined by the Borrowers and (c) Vessels and other Equipment that are surplus in the
Ordinary Course of Business (provided, however, that such surplus Vessels and other Equipment under
this clause (c) shall be limited to Vessels and other Equipment having a fair market value of
$5,000,000 in the aggregate in any calendar year (plus any unused amounts from any prior calendar
year up to $1,000,000) or $20,000,000 in the aggregate during the term of this Agreement;
provided, further, however, that the foregoing limitations shall not apply
to such surplus Vessels and other Equipment under this clause (c), the proceeds of the sale or
other disposition of which are applied, within 180 days after the sale or other disposition
thereof, to the costs of replacement of such surplus Vessels and other Equipment or the cost of
purchase or construction of other assets useful in the business of Borrowers and their
Subsidiaries).



     Ordinary Course of Business: the ordinary course of business of any Borrower or
Subsidiary, consistent with past practices and undertaken in good faith.



     Organic Documents: with respect to any Person, its charter, certificate or articles of
incorporation, bylaws, articles of organization, limited liability agreement, operating agreement,
members agreement, shareholders agreement, partnership agreement, certificate of partnership,
certificate of formation, voting trust agreement, or similar agreement or instrument governing the
formation or operation of such Person.



     OSHA: the Occupational Safety and Health Act of 1970.



     Other Agreement: each Note; LC Document; Fee Letter; Lien Waiver; Intercreditor
Agreement; Related Real Estate Document; Borrowing Base Certificate, Compliance Certificate,
Arrangement Letter, financial statement or report delivered hereunder; or other document,
instrument or agreement (other than this Agreement or a Security Document) now or hereafter
delivered by an Obligor or other Person to Agent, Security Trustee or a Lender in connection with
any transactions relating hereto.



     Other Taxes: all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made under any Loan Document or
from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.



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     Overadvance: as defined in Section 2.1.5.



     Overadvance Loan: a Base Rate Loan made when an Overadvance exists or is caused by the
funding thereof.



     Participant: as defined in Section 13.2.



     Patent Assignment: each patent collateral assignment agreement pursuant to which an
Obligor assigns to Agent, for the benefit of Secured Parties, such Obligor’s interests in its
patents, as security for the Obligations.



     Patriot Act: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).



     Payment Item: each check, draft or other item of payment payable to a Borrower,
including those constituting proceeds of any Collateral.



     PBGC: the Pension Benefit Guaranty Corporation.



     Pension Plan: any employee pension benefit plan (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by any Obligor or ERISA Affiliate or to which the Obligor or ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or other plan described
in Section 4064(a) of ERISA, has made contributions at any time during the preceding five plan
years.



     Permitted Asset Disposition: as long as no Default or Event of Default exists, an
Asset Disposition that is (a) a sale, transfer or other disposition of Inventory in the Ordinary
Course of Business; (b) a sale of Equipment and Vessels (other than PL480 Vessels) or other assets
that, in the aggregate during any fiscal year, have a fair market or book value of $5,000,000 or
less; (c) any sales transfers or other dispositions or scrapping of Obsolete Equipment; (d) a
termination, assignment or sublease of a lease, sublease, license or charter of real or personal
Property that is not required to sustain the Ordinary Course of Business, could not reasonably be
expected to have a Material Adverse Effect and does not result from an Obligor’s default; (e) a
sale, transfer or other disposition of Excess Land at the Terminal; (f) a lease, sublease or
license of real Property other than the Terminal (or any portion thereof) and any other real
Property that is required to sustain the Ordinary Course of Business; (g) a sale, transfer or other
disposition of assets among Obligors (other than a sale, transfer or other disposition to GS
Maritime Intermediate Holding LLC), which sale, transfer or other disposition shall be in
accordance with Applicable Law; (h) a sale, transfer or other disposition of assets pursuant to a
Permitted Sale-Leaseback Transaction; (i) approved in writing by Agent and Required Lenders; (j)
the sale, transfer or other disposition of Property identified on Schedule 7.1; or (k) a sale,
transfer or other disposition of PL480 Vessels; provided, that, with respect to this clause
(k), the proceeds of such sale, transfer or other disposition are equal to at least 100% of the net
orderly liquidation value of such PL480 Vessels, as set forth in the most recent Vessel Appraisal
conducted pursuant to Section 10.1.1(b) and are applied in accordance with Section 5.3.



     Permitted Discretion: a determination made in the exercise of reasonable (from the
perspective of a secured lender) business judgment.



     Permitted Holders: Greenstreet Equity Partners, LLC, JCP United Maritime Holding LLC,
AMCIC Maritime AIV, LLC and First Reserve Fund XI, L.P. and their respective Affiliates.



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     Permitted JV Transaction: a transaction pursuant to which (a) (i) Group or a
Restricted Subsidiary contributes assets or property (including Equity Interests, but specifically
excluding Blue Water Domestic Vessels and Blue Water International Vessels, which Borrowers
acknowledge may not be contributed to any joint venture) to a joint venture in exchange for
consideration which may include cash, Equity Interests in the joint venture, other property, or
some combination of the foregoing, (collectively, the “Consideration”), (ii) in the case of
contributed assets or Property other than Vessels, the fair market value of the Consideration
received is equal to at least 90% of the fair market value of such contributed assets or property
(in each case, as determined in good faith by the Board of Directors of the applicable Obligor),
(iii) in the case of contributed Vessels, the fair market value of the Consideration received is
equal to at least 100% of the net orderly liquidation value of such Vessels, as set forth in the
most recent Vessel Appraisal conducted pursuant to Section 10.1.1(b), and such net orderly
liquidation value does not exceed $25,000,000 in the aggregate during the term of this Agreement,
and (iv) Group provides, and no Restricted Subsidiary of Group provides, with respect to the
incurrence of Debt by the joint venture, a guaranty or indemnity arrangement of the joint venture
or any member of the joint venture in an amount not to exceed the fair market value of the assets
or property contributed by Group or such Restricted Subsidiary; provided, that, at the time
of the consummation of any such transaction and immediately after giving effect thereto, (A) no
Default or Event of Default shall have occurred and be continuing, (B) Availability at all times
during the immediately preceding 30 day period shall be not less than 30% of the lesser of (x) the
Borrowing Base and (y) the aggregate Commitments, (C) the Leverage Ratio shall not be greater than
the Leverage Ratio set forth in Section 10.3.1 based on the Fiscal Quarter financial statements
most recently delivered pursuant to Section 10.1.2(b) (without regard to whether a Covenant Trigger
Period is then in effect), (D) the Fixed Charge Coverage Ratio shall be not less than 1.0 to 1.0,
and (E) as a result of such transaction, when aggregated with all other such transactions, the
Borrowing Base shall not be reduced in an amount greater than 15% of the Borrowing Base in effect
immediately preceding the consummation of such transaction, or (b) (i) Group or a Restricted
Subsidiary contributes real property and other assets (not including any Accounts, Inventory or
Vessels) to an operational joint venture or strategic alliance in exchange for Consideration and
(ii) the fair market value of the Consideration received is equal to at least 90% of the fair
market value of the contributed assets or property (in each case, as determined in good faith by
the Board of Directors of the applicable Obligor); provided, that, at the time of the consummation
of any such transaction and immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing. In the event the formation of a joint venture does not meet
the specific requirements set forth above, it will still qualify as a “Permitted JV Transaction” if
it is a transaction pursuant to which Group or a Restricted Subsidiary forms a joint venture on
terms and conditions reasonably satisfactory to Agent and Required Lenders.



     Permitted Lien: as defined in Section 10.2.2.



     Permitted Sale-Leaseback Transaction: a sale-leaseback transaction entered into by any
Borrower with any Person, upon fair and reasonable terms and conditions fully disclosed and
reasonably satisfactory to Agent and Required Lenders, (a) with respect to any New Vessel which,
individually or when aggregated with other Permitted Sale-Leaseback Transactions of New Vessels in
any calendar year, does not exceed $15,000,000 in such calendar year, and (b) with respect to any
Specified Vessel, on or prior to the expiration of such lease.



     Permitted Purchase Money Debt: Purchase Money Debt and Capital Leases of Borrowers and
Subsidiaries that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate
amount outstanding does not exceed $10,000,000 at any time and its incurrence does not violate
Section 10.2.3.



     Person: any individual, corporation, limited liability company, partnership, joint
venture, joint stock company, land trust, business trust, unincorporated organization, Governmental
Authority or other entity.



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     PL480 Vessels: any of the three Vessels identified on Schedule 1.1E.



     Plan: any employee benefit plan (as such term is defined in Section 3(3) of ERISA)
established by an Obligor or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, an ERISA Affiliate.



     Prime Rate: the rate of interest announced by Bank of America from time to time as its
prime rate. Such rate is set by Bank of America on the basis of various factors, including its
costs and desired return, general economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above or below such rate. Any change in such
rate announced by Bank of America shall take effect at the opening of business on the day specified
in the public announcement of such change.



     Pro Rata: with respect to any Lender, a percentage (carried out to the ninth decimal
place) determined (a) while Commitments are outstanding, by dividing the amount of such Lender’s
Commitment by the aggregate amount of all Commitments; and (b) at any other time, by dividing the
amount of such Lender’s Loans and LC Obligations by the aggregate amount of all outstanding Loans
and LC Obligations.



     Properly Contested: with respect to any obligation of an Obligor, (a) the obligation
is subject to a bona fide dispute regarding amount or the Obligor’s liability to pay; (b) the
obligation is being properly contested in good faith by appropriate proceedings promptly instituted
and diligently pursued; (c) appropriate reserves have been established in accordance with GAAP; (d)
non-payment could not have a Material Adverse Effect, nor result in forfeiture or sale of any
assets of the Obligor; (e) no Lien is imposed on assets of the Obligor, unless bonded and stayed to
the satisfaction of Agent; and (f) if the obligation results from entry of a judgment or other
order, such judgment or order is stayed pending appeal or other judicial review.



     Property: any interest in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.



     Protective Advances: as defined in Section 2.1.6.



     Purchase Money Debt: (a) Debt (other than the Obligations) for payment of any of the
purchase price of fixed assets; (b) Debt (other than the Obligations) incurred within 30 days
before or after acquisition of any fixed assets, for the purpose of financing any of the purchase
price thereof; and (c) any renewals, extensions or refinancings (but not increases) thereof.



     Purchase Money Lien: a Lien that secures Purchase Money Debt, encumbering only the
fixed assets acquired with such Debt and constituting a Capital Lease or a purchase money security
interest under the UCC.



     Qualifying IPO: the issuance by any direct or indirect parent of the Borrowers of its
common stock in an underwritten public offering (other than a public offering pursuant to a
registration statement on Form S-8) pursuant to an effective registration statement with the
Securities and Exchange Commission in accordance with the Securities Act of 1933.




	 	 	Quarterly Update Date: the date of delivery of financial statements pursuant to
Section 10.1.2(b).





     RCRA: the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901-6992k).



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     Real Estate: all right, title and interest (whether as owner, lessor or lessee) in any
real Property or any buildings, structures, parking areas or other improvements thereon.



     Refinancing Conditions: the following conditions for Refinancing Debt: (a) it is in an
aggregate principal amount that does not exceed the principal amount of the Debt being extended,
renewed or refinanced; (b) it has a final maturity no sooner than, a weighted average life no less
than, and an interest rate no greater than, the Debt being extended, renewed or refinanced; (c) it
is subordinated to the Obligations at least to the same extent as the Debt being extended, renewed
or refinanced; (d) the representations, covenants and defaults applicable to it are no less
favorable to Borrowers than those applicable to the Debt being extended, renewed or refinanced; (e)
no additional Lien is granted to secure it; (f) no additional Person is obligated on such Debt; and
(g) upon giving effect to it, no Default or Event of Default exists.



     Refinancing Debt: Borrowed Money that is the result of an extension, renewal or
refinancing of Debt permitted under Section 10.2.1(b), (d) or (f).



     Reimbursement Undertaking: as defined in Section 2.3.1.



     Related Real Estate Documents: with respect to the Mortgaged Real Estate, the
following, in form and substance reasonably satisfactory to Agent: (a) a mortgagee title policy or
marked-up title commitment having the effect of a policy of title insurance (or binder therefor)
covering Agent’s interest under the Mortgage, in a form and by an insurer reasonably acceptable to
Agent in the amount set forth on Schedule 1.1D along with evidence reasonably acceptable to Agent
of payment of all title insurance premiums and related charges; (b) such assignments of leases,
estoppel letters, attornment agreements, consents, waivers and releases as set forth on Schedule
1.1D with respect to other Persons having an interest in the Mortgaged Real Estate; (c) an
affidavit of no change as to the 2007 or 2008 certified as-built survey of the Mortgaged Real
Estate; (d) flood insurance in an amount, with endorsements and by an insurer reasonably acceptable
to Agent, if the Mortgaged Real Estate is within a flood plain; (e) an environmental assessment,
prepared by environmental engineers reasonably acceptable to Agent, and accompanied by such
reports, certificates, studies or data as Agent may reasonably require, which shall all be in form
and substance reasonably satisfactory to Required Lenders; and (f) an Environmental Agreement and
such other documents, instruments or agreements as Agent may reasonably require with respect to any
environmental risks regarding the Mortgaged Real Estate.



     Report: as defined in Section 12.2.3.



     Reportable Event: any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.



     Required Lenders: Lenders (subject to Section 4.2) having (a) Commitments in excess of
50% of the aggregate Commitments; and (b) if the Commitments have terminated, Loans in excess of
50% of all outstanding Loans; provided, that, at any time that there are two (2) or more Lenders
(with each Lender and its Affiliates together being counted as one “Lender”), “Required Lenders”
must include at least two (2) Lenders (with each Lender and its Affiliates together being counted
as one “Lender”).



     Reserve Percentage: the reserve percentage (expressed as a decimal, rounded upward to
the nearest 1/16th of 1%) applicable to member banks under regulations issued from time to time by
the Board of Governors for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”).



     Restricted Subsidiary: any Subsidiary other than an Unrestricted Subsidiary.




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     Restrictive Agreement: an agreement (other than a Loan Document) that conditions
or restricts the right of any Borrower, Subsidiary or other Obligor to incur or repay the
Obligations, to grant Liens on any assets to secure the Obligations, to declare or make
Distributions to a Borrower or any Subsidiary, to modify, extend or renew any agreement evidencing
the Obligations, or to repay any intercompany Debt owed to any Borrower or any Subsidiary.



     Revolver Note: a promissory note to be executed by Borrowers in favor of a Lender in
the form of Exhibit A, which shall be in the amount of such Lender’s Commitment and shall evidence
the Loans made by such Lender.



     Revolver Termination Date: December          , 2013.



     S&P: Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and its successors.



     Second Lien Agent: Wells Fargo Bank, National Association, as the trustee under the
Second Lien Notes Indenture.



     Second Lien Documents: collectively, the Second Lien Notes Indenture, the Second Lien
Notes and all agreements (including any security agreement), documents and instruments executed or
delivered in connection with any of the foregoing (as the same now exist or may hereafter exist
upon the execution and delivery thereof and may hereafter or thereafter, as the case may be, be
amended, supplemented or otherwise modified in accordance with the provisions of the Intercreditor
Agreement).



     Second Lien Notes: the         % Senior Secured Notes due 2015, issued by Group and Finance
Corp. pursuant to the Second Lien Notes Indenture.



     Second Lien Notes Indenture: the Indenture dated as of December ___, 2009 among Group
and Finance Corp., as issuers, the guarantors party thereto and Second Lien Agent, as trustee, as
amended from time to time.



     Secured Parties: Agent, Security Trustee, Issuing Banks, Underlying Issuer, Lenders
and Bank Product Providers.



     Security Documents: the Guaranties, Mortgages, Ship Mortgages, Patent Assignments,
Trademark Security Agreements, Deposit Account Control Agreements, and all other documents,
instruments and agreements now or hereafter securing (or given with the intent to secure) any
Obligations.



     Security Trustee: Bank of America, in its capacity as security trustee for Lenders and
as mortgage trustee for Lenders under the Ship Mortgages, and any successor security or mortgagee
trustee.



     Senior Officer: the chairman of the board, president, chief executive officer or chief
financial officer of a Borrower or, if the context requires, an Obligor.



     Settlement Report: a report delivered by Agent to Lenders summarizing the Loans and
participations in LC Obligations outstanding as of a given settlement date, allocated to Lenders on
a Pro Rata basis in accordance with their Commitments.



     Ship Mortgage: (a) the first preferred ship mortgages, each dated the date hereof,
granted by the respective Borrowers in favor of the Security Trustee as mortgage trustee and
covering the Eligible Vessels owned by each such party as shown in Schedule 1.1B hereto, each such
mortgage securing the



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Obligations and duly recorded at the United States Coast Guard National Vessel Documentation Center
and (b) any preferred ship mortgage hereafter granted by any Borrower or Guarantor in favor of the
Security Trustee as mortgage trustee covering one or more Vessels owned by any such party, each
such mortgage to secure the Obligations and to be duly recorded at the United States Coast Guard
National Vessel Documentation Center.




     Solvent: as to any Person, such Person (a) owns Property whose fair salable value is
greater than the amount required to pay all of its debts (including contingent, subordinated,
unmatured and unliquidated liabilities); (b) owns Property whose present fair salable value (as
defined below) is greater than the probable total liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of such Person as they become absolute and matured; (c) is
able to pay all of its debts as they mature; (d) has capital that is not unreasonably small for its
business and is sufficient to carry on its business and transactions and all business and
transactions in which it is about to engage; (e) is not “insolvent” within the meaning of Section
101(32) of the Bankruptcy Code; and (f) has not incurred (by way of assumption or otherwise) any
obligations or liabilities (contingent or otherwise) under any Loan Documents, or made any conveyance in connection therewith, with
actual intent to hinder, delay or defraud either present or future creditors of such Person or any
of its Affiliates. “Fair salable value” means the amount that could be obtained for assets
within a reasonable time, either through collection or through sale under ordinary selling
conditions by a capable and diligent seller to an interested buyer who is willing (but under no
compulsion) to purchase.



     Specified Vessel: any of the four Vessels identified on Schedule 1.1C.



     Subordinated Debt: Debt incurred by a Borrower that is expressly subordinate and
junior in right of payment to Full Payment of all Obligations, and is on terms (including maturity,
interest, fees, repayment, covenants and subordination) reasonably satisfactory to Agent.



     Subsidiary: any entity more than 50% of whose voting securities or Equity Interests is
owned by a Borrower or any combination of Borrowers (including indirect ownership by a Borrower
through other entities in which the Borrower directly or indirectly owns more than 50% of the
voting securities or Equity Interests).



     Swingline Loan: any Borrowing of Base Rate Loans funded with Agent’s funds, until such
Borrowing is settled among Lenders pursuant to Section 4.1.3.



     Taxes: all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.



     Terminal: the terminal located at 14537 Highway 15, Davant, Plaquemines Parish,
Louisiana.



     Trademark Security Agreement: each trademark security agreement pursuant to which an
Obligor grants to Agent, for the benefit of Secured Parties, a Lien on such Obligor’s interests in
trademarks, as security for the Obligations.



     Transferee: any actual or potential Eligible Assignee, Participant or other Person
acquiring an interest in any Obligations.



     Type: any type of a Loan (i.e., Base Rate Loan or LIBOR Loan) that has the same
interest option and, in the case of LIBOR Loans, the same Interest Period.



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     UCC: the Uniform Commercial Code as in effect in the State of New York or, when the
laws of any other jurisdiction govern the perfection or enforcement of any Lien, the Uniform
Commercial Code of such jurisdiction.



     Underlying Issuer: Wells Fargo or one of its Affiliates.



     Underlying Issuer Indemnitees: Underlying Issuer and its officers, directors,
employees, Affiliates, agents and attorneys.



     Underlying Letter of Credit: a Letter of Credit that has been issued by an
Underlying Issuer.



     Unfunded Pension Liability: the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.



     Unrestricted Subsidiary: at any time, any Subsidiary which at such time is designated
an “Unrestricted Subsidiary” pursuant to and in accordance with the Second Lien Notes Indenture.




	 	 	Upstream Payment: a Distribution by a Subsidiary of a Borrower to such Borrower.





     Value: (a) for Eligible Vessels, the net book value thereof, as set forth in
Borrowers’ most recent Borrowing Base Certificate delivered to Agent pursuant to Section 8.1, (b)
for Inventory, its value determined on the basis of the lower of cost or market, calculated on a
first-in, first-out basis, and excluding any portion of cost attributable to intercompany profit
among Borrowers and their Affiliates; and (c) for an Account, its face amount, net of any returns,
rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including
sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other
Person.



     Vessel Appraisal: a written appraisal of the Eligible Vessels delivered to Agent, in
form, scope and methodology, and by an appraiser, reasonably acceptable to Agent, addressed to
Agent and upon which Agent and Lenders are expressly permitted to rely.



     Vessel Lease Accounts Reserve: with respect to Accounts attributable to Vessels leased
by Barge or Ocean pursuant to the Existing Vessel Lease
Agreements, if the Borrowers have not established a system of maintaining records, reasonably
satisfactory to Agent and Co-Collateral Agent, which segregates the Accounts of Barge subject to
liens pursuant to Existing Vessel Lease Agreements from the other Accounts of Barge, a reserve
equal to (a) before the 180th day after the Closing Date, 28.6% of the Eligible Accounts of Barge
plus the Eligible Accounts relating to the Four Leased UOS Vessels, (b) for the period commencing
on the 180th day after the Closing Date and continuing through the 270th day after the Closing
Date, 40.0% of the Eligible Accounts of Barge plus the Eligible Accounts relating to the Four
Leased UOS Vessels, and (c) at all times thereafter, a percentage of Eligible Accounts of Barge as
determined by Agent and Co-Collateral Agent, in their sole discretion but in no event will it
exceed 70% of Eligible Accounts of Barge plus Eligible Accounts relating to the Four Leased UOS
Vessels. Notwithstanding the foregoing, if the Borrowers establish a system of maintaining records,
reasonably satisfactory to Agent and Co-Collateral Agent, which segregates those Accounts
attributable to Vessels leased by Barge subject to liens pursuant to Existing Vessel Lease
Agreements from the other Accounts of Barge, the Vessel Lease Accounts reserve shall equal the
actual amount of Eligible Accounts of Barge subject to liens pursuant to Existing Vessel Lease
Agreements plus the Eligible Accounts relating to the Four Leased UOS Vessels.



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     Vessel Lease Agreements: the Existing Vessel Lease Agreements and any other
agreements pursuant to which any Obligor leases or bare boat charters Vessels.



     Vessel Type: any type of Vessel (i.e., Blue Water Domestic Vessel, Blue Water
International Vessel or Brown Water Vessel).



     Vessels: the towboats, barges and other vessels owned or leased by Obligors.



     Voting Equity Interests: with respect to any Person, such Person’s Equity Interests
having the right to vote for the election of the Board of Directors of such Person under ordinary
circumstances.



     Wells Fargo: Wells Fargo Bank, National Association, a national banking
association.



     WFF: Wells Fargo Foothill, LLC, a Delaware limited liability company, and its
successors and assigns.



     1.2. Accounting Terms; GAAP. Under the Loan Documents (except as otherwise specified
herein), all accounting terms shall be interpreted, all accounting determinations shall be made,
and all financial statements shall be prepared, in accordance with GAAP applied on a basis
consistent with the most recent audited financial statements of Borrowers delivered to Agent;
provided, that, if Borrower shall notify Agent that it wishes to amend any definition in Section 1
or covenant in Section 10.3 to eliminate the effect of any change in GAAP on the operation of any
such definition or provision (or if Agent notifies Borrower that Required Lenders wish to amend any
such definition or provision for such purposes), then the Loan Parties’ compliance with such
provisions shall be determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such definition or
provision is amended in a manner reasonably satisfactory to Borrower and Required Lenders.
Notwithstanding the foregoing, the terms “operating lease” and “capital lease” shall be interpreted
in accordance with GAAP as in effect on the Closing Date.



     1.3. Uniform Commercial Code. As used herein, the following terms are defined in
accordance with the UCC in effect in the State of New York from time to time: “Chattel Paper,”
“Commercial Tort Claim,” “Deposit Account,” “Document,” “Equipment,” “General Intangibles,”
“Goods,” “Instrument,” “Investment Property,” “Letter-of-Credit Right” and “Supporting Obligation.”



     1.4. Certain Matters of Construction. The terms “herein,” “hereof,” “hereunder” and
other words of similar import refer to this Agreement as a whole and not to any particular section,
paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation
of periods of time from a specified date to a later specified date, “from” means “from and
including,” and “to” and “until” each mean “to but excluding.” The terms “including” and “include”
shall mean “including, without limitation” and, for purposes of each Loan Document, the parties
agree that the rule of ejusdem generis shall not be applicable to limit any provision. Section
titles appear as a matter of convenience only and shall not affect the
interpretation of any Loan Document. All references to (a) laws or statutes include all
related rules, regulations, interpretations, amendments and successor provisions; (b) any document,
instrument or agreement include any amendments, waivers and other modifications, extensions or
renewals (to the extent permitted by the Loan Documents); (c) any section mean, unless the context
otherwise requires, a section of this Agreement; (d) any exhibits or schedules mean, unless the
context otherwise requires, exhibits and schedules attached hereto, which are hereby incorporated
by reference; (e) any Person include successors and assigns; (f) time of day mean time of day at
Agent’s notice address under Section 14.3.1; or (g) discretion of Agent, Co-Collateral Agent, an
Issuing Bank or any Lender mean, unless otherwise stated, the sole and absolute discretion of such
Person. All calculations of Value, fundings of Loans, issuances of Letters of Credit and payments
of Obligations shall be in Dollars and, unless the context otherwise requires, all determinations
(including calculations of Borrowing Base and



-29-









 




financial covenants) made from time to time under the Loan Documents shall be made in light of the
circumstances existing at such time. Borrowing Base calculations shall be consistent with
historical methods of valuation and calculation, and otherwise reasonably satisfactory to Agent
(and not necessarily calculated in accordance with GAAP). Borrowers shall have the burden of
establishing any alleged negligence, misconduct or lack of good faith by Agent, an Issuing Bank or
any Lender under any Loan Documents. No provision of any Loan Documents shall be construed against
any party by reason of such party having, or being deemed to have, drafted the provision. Whenever
the phrase “to the best of Borrowers’ knowledge” or words of similar import are used in any Loan
Documents, it means actual knowledge of a Senior Officer, or knowledge that a Senior Officer would
have obtained if he or she had engaged in good faith and diligent performance of his or her duties,
including reasonably specific inquiries of employees or agents who would reasonably be expected to
have knowledge of such matters and a good faith attempt to ascertain the matter to which such
phrase relates.




SECTION 2. CREDIT FACILITIES




     2.1. Commitment.



          2.1.1. Loans. Subject to the terms and conditions of this Agreement, each Lender with a
Commitment agrees (severally, not jointly or jointly and severally) to make Loans to Borrowers from
time to time through the Commitment Termination Date in an amount at any one time outstanding not
to exceed the lesser of:




          (a) such Lender’s Commitment, or




          (b) such Lender’s Pro Rata of an amount equal to the lesser of:




               (i) the Commitments less the sum of (A) the Letter of Credit Usage at such time, plus (B) the
principal amount of Swingline Loans outstanding at such time, and



               (ii) the Borrowing Base at such time less the sum of (1) the Letter of Credit Usage at such
time, plus (2) the principal amount of Swingline Loans outstanding at such time.



          The Loans may be repaid and reborrowed as provided herein. In no event shall Lenders have any
obligation to honor a request for a Loan if the unpaid balance of Loans outstanding at such time
(including the requested Loan) would exceed the Borrowing Base. Borrowers and the Lender Group
hereby acknowledge and agree that all Existing Fuel Hedges shall constitute Bank Product Debt under
this Agreement on and after the Closing Date with the same effect as if such Existing Fuel Hedges
were provided by a Lender or one of its Affiliates at the request of Borrower Agent on the Closing
Date.




          2.1.2. Revolver Notes. The Loans made by each Lender and interest accruing thereon shall be
evidenced by the records of Agent and such Lender. At the request of any Lender, Borrowers shall
deliver a Revolver Note to such Lender.




          2.1.3. Use of Proceeds. The proceeds of Loans shall be used by Borrowers solely (a) to satisfy
existing Debt; (b) to pay fees and transaction expenses associated with the closing of this credit
facility; (c) to pay Obligations in accordance with this Agreement; and (d) for working capital and
other lawful corporate purposes of Borrowers.




          2.1.4. Voluntary Reduction or Termination of Commitments.




          (a) The Commitments shall terminate on the Revolver Termination Date, unless sooner terminated
in accordance with this Agreement. Upon at least 10 Business Days’ prior written








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notice to Agent, Borrowers may, at their option, terminate the Commitments and this credit
facility. Any notice of termination given by Borrowers shall be irrevocable. On the termination
date, Borrowers shall make Full Payment of all Obligations.




          (b) Borrowers may permanently reduce the Commitments, on a Pro Rata basis for each Lender,
upon at least 10 Business Days’ prior written notice to Agent, which notice shall specify the
amount of the reduction and shall be irrevocable once given. Each reduction shall be in a minimum
amount of $5,000,000, or an increment of $1,000,000 in excess thereof.




          2.1.5. Overadvances. If the aggregate Loans exceed the Borrowing Base (“Overadvance”)
or the aggregate Commitments at any time, the excess amount shall be payable by Borrowers on demand
by Agent, but all such Loans shall nevertheless constitute Obligations secured by the Collateral
and entitled to all benefits of the Loan Documents. Unless its authority has been revoked in
writing by Required Lenders, Agent may require Lenders to honor requests for Overadvance Loans and
to forbear from requiring Borrowers to cure an Overadvance, (a) when no other Event of Default is
known to Agent, as long as (i) the Overadvance does not continue for more than 60 consecutive days
(and no Overadvance may exist for at least five consecutive days thereafter before further
Overadvance Loans are required), and (ii) the aggregate amount of the Overadvance and any
Protective Advances then outstanding is not known by Agent to exceed $13,500,000; and (b)
regardless of whether an Event of Default exists, if Agent discovers an Overadvance not previously
known by it to exist, as long as from the date of such discovery the Overadvance (i) is not
increased, and (ii) does not continue for more than 60 consecutive days. In no event shall
Overadvance Loans be required that would cause the outstanding Loans and LC Obligations to exceed
the aggregate Commitments. Any funding of an Overadvance Loan or sufferance of an Overadvance shall
not constitute a waiver by Agent or Lenders of the Event of Default caused thereby. In no event
shall any Borrower or other Obligor be deemed a beneficiary of this Section nor authorized to
enforce any of its terms.




          2.1.6. Protective Advances. Agent shall be authorized, in its discretion, at any time that any
conditions in Section 6 are not satisfied, and without regard to the aggregate Commitments, to make
Base Rate Loans (“Protective Advances”) (a) up to an aggregate amount outstanding at any
time equal to $13,500,000 minus any Overadvance outstanding at such time, if Agent deems such Loans
necessary or desirable to preserve or protect Collateral, or to enhance the collectibility or
repayment of Obligations (other than Bank Product Debt); or (b) to pay any other amounts chargeable
to Obligors under any Loan Documents, including costs, fees and expenses. Each Lender shall
participate in each Protective Advance on a Pro Rata basis. Required Lenders may at any time
revoke Agent’s authority to make further Protective Advances by written notice to Agent. Absent
such revocation, Agent’s determination that funding of a Protective Advance is appropriate shall be
conclusive.




     2.2. Reserved.



     2.3. Letter of Credit Facility.



          2.3.1. Subject to the terms and conditions of this Agreement, upon the request of Borrower
Agent made in accordance herewith, the Issuing Bank agrees to issue, or to cause an Underlying
Issuer, as Issuing Bank’s agent, to issue, a requested Letter of Credit. If Issuing Bank, at its
option, elects to cause an Underlying Issuer to issue a requested Letter of Credit, then Issuing
Bank agrees that it will enter into arrangements relative to the reimbursement of such Underlying
Issuer (which may include, among, other means, by becoming an applicant with respect to such Letter
of Credit or entering into undertakings which provide for reimbursements of such Underlying Issuer
with respect to such Letter of Credit; each such obligation or undertaking, irrespective of whether
in writing, a “Reimbursement Undertaking”) with respect to Letters of Credit issued by such
Underlying Issuer. By submitting a request to Issuing Bank for the issuance of a Letter of Credit,
Borrower Agent shall be deemed to have




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requested that Issuing Bank issue or that an Underlying Issuer issue the requested Letter of Credit
and to have requested Issuing Bank to issue a Reimbursement Undertaking with respect to such
requested Letter of Credit if it is to be issued by an Underlying Issuer (it being expressly
acknowledged and agreed by Borrowers that Borrowers are and shall be deemed to be an applicant
(within the meaning of Section 5-102(a)(2) of the Code) with
respect to each Underlying Letter of Credit). Each request for the issuance of a Letter of Credit,
or the amendment, renewal, or extension of any outstanding Letter of Credit, shall be made in
writing by a Person authorized to make such request and delivered to the Issuing Bank via hand
delivery, telefacsimile, or other electronic method of transmission reasonably in advance of the
requested date of issuance, amendment, renewal, or extension. Each such request shall be in form
and substance reasonably satisfactory to the Issuing Bank and shall specify (i) the amount of such
Letter of Credit, (ii) the date of issuance, amendment, renewal, or extension of such Letter of
Credit, (iii) the expiration date of such Letter of Credit, (iv) the name and address of the
beneficiary of the Letter of Credit, and (v) such other information (including, in the case of an
amendment, renewal, or extension, identification of the Letter of Credit to be so amended, renewed,
or extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit.
Anything contained herein to the contrary notwithstanding, the Issuing Bank may, but shall not be
obligated to, issue or cause the issuance of a Letter of Credit or to issue a Reimbursement
Undertaking in respect of an Underlying Letter of Credit, in either case, that supports the
obligations of Borrowers or their respective Subsidiaries (1) in respect of (A) a lease of real
property, or (B) an employment contract, or (2) at any time that one or more of the Lenders is a
Defaulting Lender. The Issuing Bank shall have no obligation to issue a Letter of Credit or a
Reimbursement Undertaking in respect of an Underlying Letter of Credit, in either case, if any of
the following would result after giving effect to the requested issuance:




     (a) the Letter of Credit Usage would exceed the Borrowing Base less the outstanding amount of
Loans (inclusive of Swingline Loans), or



          (b) the Letter of Credit Usage would exceed the Letter of Credit Subline, or




          (c) the Letter of Credit Usage would exceed the Commitments less the outstanding amount of
Commitments.




     Borrowers and the Lender Group hereby acknowledge and agree that all Existing Letters of
Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with
the same effect as if such Existing Letters of Credit were issued by Issuing Bank or an Underlying
Issuer at the request of Borrower Agent on the Closing Date. Each Letter of Credit shall be in form
and substance reasonably acceptable to the Issuing Bank, including the requirement that the amounts
payable thereunder must be payable in Dollars. If Issuing Bank makes a payment under a Letter of
Credit or an Underlying Issuer makes a payment under an Underlying Letter
of Credit, Borrowers shall pay to Agent an amount equal to the applicable Letter of Credit
Disbursement on the date such Letter of Credit Disbursement is made and, in the absence of such
payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be
deemed to be a Loan hereunder and, initially, shall bear interest at the rate then applicable to
Loans that are Base Rate Loans. If a Letter of Credit Disbursement is deemed to be a Loan
hereunder, Borrowers’ obligation to pay the amount of such Letter of Credit Disbursement to Issuing
Bank shall be discharged and replaced by the resulting Loan. Promptly following receipt by Agent of
any payment from Borrowers pursuant to this paragraph, Agent shall distribute such payment to the
Issuing Bank or, to the extent that Lenders have made payments pursuant to Section 2.3.2 to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear.



          2.3.2. Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to
Section 2.3.1, each Lender with a Commitment agrees to fund its Pro Rata share of any Loan deemed
made pursuant to Section 2.3.1 on the same terms and conditions as if Borrowers had requested the
amount thereof as a Loan and Agent shall promptly pay to Issuing Bank the amounts so received by it







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from the Lenders. By the issuance of a Letter of Credit or a Reimbursement Undertaking (or an
amendment to a Letter of Credit or a Reimbursement Undertaking increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Lenders with Commitments, the
Issuing Bank shall be deemed to have granted to each Lender with a Commitment, and each Lender with
a Commitment shall be deemed to have purchased, a participation in each Letter of Credit issued by
Issuing Bank and each Reimbursement Undertaking, in an amount equal to its Pro Rata share of such
Letter of Credit or Reimbursement Undertaking, and each such Lender agrees to pay to Agent, for the
account of the Issuing Bank, such Lender’s Pro Rata share of any Letter of Credit Disbursement made
by Issuing Bank or an Underlying Issuer under the applicable Letter of Credit. In consideration and
in furtherance of the foregoing, each Lender with a Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Bank, such Lender’s Pro Rata
share of each Letter of Credit Disbursement made by Issuing Bank or an Underlying Issuer and not
reimbursed by Borrower on the date due as provided in Section 2.3.1, or of any reimbursement
payment required to be refunded to Borrowers for any reason. Each Lender with a Commitment
acknowledges and agrees that its obligation to deliver to Agent, for the account of the Issuing
Bank, an amount equal to its respective Pro Rata share of each Letter of Credit Disbursement
pursuant to this Section 2.3.2 shall be absolute and unconditional and such remittance shall be
made notwithstanding the occurrence or continuation of an Event of Default or Default or the
failure to satisfy any condition set forth in Section 6. If any such Lender fails to make available
to Agent the amount of such Lender’s Pro Rata share of a Letter of Credit Disbursement as provided
in this Section, such Lender shall be deemed to be a Defaulting Lender and Agent (for the account
of the Issuing Bank) shall be entitled to recover such amount on demand from such Lender together
with interest thereon at the Defaulting Lender Rate until paid in full.




          2.3.3. Borrowers hereby agree to indemnify, save, defend, and hold the Lender Group and each
Underlying Issuer harmless from any damage, loss, cost, expense, or liability, and reasonable
attorneys fees incurred by Issuing Bank, any other member of the Lender Group, or any Underlying
Issuer arising out of or in connection with any Reimbursement Undertaking or any Letter of Credit;
provided, however, that Borrowers shall not be obligated hereunder to indemnify for any loss, cost,
expense, or liability that a court of competent jurisdiction finally determines to have resulted
from the gross negligence or willful misconduct of the Issuing Bank, any other member of the Lender
Group, or any Underlying Issuer.
Each Borrower agrees to be bound by the Underlying Issuer’s regulations and interpretations of
any Letter of Credit or by Issuing Bank’s interpretations of any Reimbursement Undertaking even
though this interpretation may be different from such Borrower’s own, and each Borrower understands
and agrees that none of the Issuing Bank, the Lender Group, or any Underlying Issuer shall be
liable for any error, negligence, or mistake, whether of omission or commission, in following any
Borrower’s instructions or those contained in the Letter of Credit or any modifications,
amendments, or supplements thereto. Each Borrower understands that the Reimbursement Undertakings
may require Issuing Bank to indemnify the Underlying Issuer for certain costs or liabilities
arising out of claims by Borrowers against such Underlying Issuer. Borrowers hereby agree to
indemnify, save, defend, and hold Issuing Bank and the other members of the Lender Group harmless
with respect to any loss, cost, expense (including reasonable attorneys fees), or liability
incurred by them as a result of the Issuing Bank’s indemnification of an Underlying Issuer;
provided, however, that Borrowers shall not be obligated hereunder to indemnify for any such loss,
cost, expense, or liability to the extent that it is caused by the gross negligence or willful
misconduct of the Issuing Bank or any other member of the Lender Group. Borrowers hereby
acknowledge and agrees that none of the Issuing Bank, any other member of the Lender Group, or any
Underlying Issuer shall be responsible for delays, errors, or omissions resulting from the
malfunction of equipment in connection with any Letter of Credit.




          2.3.4. Borrowers hereby authorize and direct any Underlying Issuer to deliver to the Issuing
Bank all instruments, documents, and other writings and property received by such Underlying Issuer
pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing Bank’s
instructions with respect to all matters arising in connection with such Underlying Letter of
Credit and the related application.




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          2.3.5. Any and all issuance charges, usage charges, commissions, fees, and costs incurred by
the Issuing Bank relating to Underlying Letters of Credit shall be reimbursable immediately by
Borrowers to Agent for the account of the Issuing Bank; it being acknowledged and agreed by
Borrowers that, as of the Closing Date, the usage charge imposed by the Underlying Issuer is .825%
per annum times the undrawn amount of each Underlying Letter of Credit, that such usage
charge may be changed from time to time, and that the Underlying Issuer also imposes a
schedule of charges for amendments, extensions, drawings, and renewals.




          2.3.6. If by reason of (i) any change after the Closing Date in any applicable law, treaty,
rule, or regulation or any change in the interpretation or application thereof by any Governmental
Authority, or (ii) compliance by the Issuing Bank, any other member of the Lender Group, or
Underlying Issuer with any direction, request, or requirement (irrespective of whether having the
force of law) of any Governmental Authority or monetary authority including, Regulation D of the
Federal Reserve Board as from time to time in effect (and any successor thereto):




          (a) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect
of any Letter of Credit issued or caused to be issued hereunder or hereby, or




          (b) there shall be imposed on the Issuing Bank, any other member of the Lender Group, or
Underlying Issuer any other condition regarding any Letter of Credit or Reimbursement Undertaking,



and the result of the foregoing is to increase, directly or indirectly, the cost to the Issuing
Bank, any other member of the Lender Group, or an Underlying Issuer of issuing, making,
guaranteeing, or maintaining any Reimbursement Undertaking or Letter of Credit or to reduce the
amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a
reasonable period after the additional cost is incurred or the amount received is reduced, notify
Borrowers, and Borrowers shall pay within 30 days after demand therefor, such amounts as Agent may
specify to be necessary to compensate the Issuing Bank, any other member of the Lender Group, or an
Underlying Issuer for such additional cost or reduced receipt, together with interest on such
amount from the date of such demand until payment in full thereof at the rate then applicable to
Base Rate Loans hereunder; provided, however, that Borrowers shall not be required to provide any
compensation pursuant to this Section 2.3.6 for any such amounts incurred more than 180 days prior
to the date on which the demand for payment of such amounts is first made to Borrowers; provided
further, however, that if an event or circumstance giving rise to such amounts is retroactive, then
the 180-day period referred to above shall be extended to include the period of retroactive effect
thereof. The determination by Agent of any amount due pursuant to this Section 2.3.6, as set forth
in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence
of manifest or demonstrable error, be final and conclusive and binding on all of the parties
hereto.




SECTION 3. INTEREST, FEES AND CHARGES




     3.1. Interest.



          3.1.1. Rates and Payment of Interest.




          (a) The Obligations (except for undrawn Letters of Credit and except for Bank Product Debt)
shall bear interest (i) if a Base Rate Loan, at the Base Rate in effect from time to time, plus the
Applicable Margin; (ii) if a LIBOR Loan, at LIBOR for the applicable Interest Period, plus the
Applicable Margin; and (iii) if any other Obligation (including, to the extent permitted by law,
interest not paid when due), at the Base Rate in effect from time to time, plus the Applicable
Margin for Base Rate







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Loans. Interest shall accrue from the date the Loan is advanced or the Obligation is incurred or
payable, until paid by Borrowers. If a Loan is repaid on the same day made, one day’s interest
shall accrue.




          (b) During an Insolvency Proceeding with respect to any Borrower, or during any other Event of
Default if Required Lenders in their discretion so elect, Obligations (except for undrawn Letters
of Credit and except for Bank Product Debt) shall bear interest at the Default Rate (whether before
or after any judgment). Each Borrower acknowledges that the cost and expense to Agent and Lenders
due to an Event of Default are difficult to ascertain and that the Default Rate is a fair and
reasonable estimate to compensate Agent and Lenders for this.




          (c) Interest accrued on the Loans shall be due and payable in arrears, (i) on the first day of
each month and, for any LIBOR Loan, the last day of its Interest Period; (ii) on any date of
prepayment, with respect to the principal amount of Loans being prepaid; and (iii) on the
Commitment Termination Date. Interest accrued on any other Obligations shall be due and payable as
provided in the Loan Documents and, if no payment date is specified, shall be due and payable on
demand. Notwithstanding the foregoing, interest accrued at the Default Rate shall be due and
payable on demand.




          3.1.2. Application of LIBOR to Outstanding Loans.




          (a) Borrowers may on any Business Day, subject to delivery of a Notice of
Conversion/Continuation, elect to convert any portion of the Base Rate Loans to, or to continue any
LIBOR Loan at the end of its Interest Period as, a LIBOR Loan. During any Default or Event of
Default, Agent may (and shall at the direction of Required Lenders) declare that no Loan may be
made, converted or continued as a LIBOR Loan.




          (b) Whenever Borrowers desire to convert or continue Loans as LIBOR Loans, Borrower Agent
shall give Agent a Notice of Conversion/Continuation, no later than 11:00 a.m. at least three
Business Days before the requested conversion or continuation date. Promptly after receiving any
such notice, Agent shall notify each Lender thereof. Each Notice of Conversion/Continuation shall
be irrevocable, and shall specify the amount of Loans to be converted or continued, the conversion
or continuation date (which shall be a Business Day), and the duration of the Interest Period
(which shall be deemed to be one month if not specified). If, upon the expiration of any Interest
Period in respect of any LIBOR Loans, Borrowers shall have failed to deliver a Notice of
Conversion/Continuation, they shall be deemed to have elected to convert such Loans into Base Rate
Loans.




          3.1.3. Interest Periods. In connection with the making, conversion or continuation of any
LIBOR Loans, Borrowers shall select an interest period (“Interest Period”) to apply, which
interest period shall be one, two, or three months (or, if each all Lenders agree, six, nine or
twelve months); provided, however, that:




          (a) the Interest Period shall commence on the date the Loan is made or continued as, or
converted into, a LIBOR Loan, and shall expire on the numerically corresponding day in the calendar
month at its end;




          (b) if any Interest Period commences on a day for which there is no corresponding day in the
calendar month at its end or if such corresponding day falls after the last Business Day of such
month, then the Interest Period shall expire on the last Business Day of such month; and if any
Interest Period would expire on a day that is not a Business Day, the period shall expire on the
next Business Day; and




          (c) no Interest Period shall extend beyond the Revolver Termination Date.







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          3.1.4. Interest Rate Not Ascertainable. If Agent shall determine that on any date for
determining LIBOR, due to any circumstance affecting the London interbank market, adequate and fair
means do not exist for ascertaining such rate on the basis provided herein, then Agent shall
immediately notify Borrowers of such determination. Until Agent notifies Borrowers that such
circumstance no longer exists, the obligation of Lenders to make LIBOR Loans shall be suspended,
and no further Loans may be converted into or continued as LIBOR Loans.




     3.2. Fees.



          3.2.1. Unused Line Fee. Borrowers shall pay to Agent, for the Pro Rata benefit of Lenders, a
fee equal to 0.50% per annum times the amount by which the Commitments exceed the average daily
balance of Loans and stated amount of Letters of Credit during any month; provided, that
such percentage rate shall be increased to 0.75% per annum for any month in which the average daily
balance of Loans and stated amount of Letters of Credit is less than 50% of the Commitments. Such
fee shall be payable in arrears, on the first day of each month and on the Commitment Termination
Date.




          3.2.2. LC Facility Fees. Borrowers shall pay (a) to Agent (for the Pro Rata benefit of Lenders
with a Commitment, subject to any agreements between Agent and individual Lenders), a Letter of
Credit fee which shall accrue at a rate equal to the Applicable Margin in effect for LIBOR Loans
times the Daily Balance of the undrawn amount of all outstanding Letters of Credit, which fee shall
be payable monthly in arrears, on the first day of each month; (b) to Agent, for its own account, a
fronting fee equal to 0.125% per annum on the stated amount of each Letter of Credit, which fee
shall be payable monthly in arrears, on the first day of each month; and (c) to the Issuing Bank,
for its own account, all customary charges associated with the issuance, amending, negotiating,
payment, processing, transfer and administration of Letters of Credit (including the charges,
commissions, fees and costs set forth in Section 2.3.5), which charges shall be paid as and when
incurred. Upon the occurrence and during the continuation of an Event of Default, the fee payable
under clause (a) shall be increased by 2% per annum.




          3.2.3. Agent Fees. In consideration of Agent’s syndication of the Commitments and service as
Agent hereunder, Borrowers shall pay to Agent, for its own account, the fees described in the Fee
Letter in respect thereof.




     3.3. Computation of Interest, Fees, Yield Protection. All interest, as well as fees
and other charges calculated on a per annum basis, shall be
computed for the actual days elapsed, based on a year of 360 days or, in the case of Base Rate
Loans, 365/366 days. Each determination by Agent of any interest, fees or interest rate hereunder
shall be final, conclusive and binding for all purposes, absent manifest error. All fees shall be
fully earned when due and shall not be subject to rebate, refund or proration. All fees payable
under Section 3.2 are compensation for services and are not, and shall not be deemed to be,
interest or any other charge for the use, forbearance or detention of money. A certificate as to
amounts payable (with reasonable details of the basis therefor) by Borrowers under Section 3.4,
3.6, 3.7, 3.9 or 5.9, submitted to Borrower Agent by Agent or the affected Lender, as applicable,
shall be final, conclusive and binding for all purposes, absent manifest error, and Borrowers shall
pay such amounts to the appropriate party within 10 Business Days following receipt of the
certificate.



     3.4. Reimbursement Obligations. Borrowers shall reimburse Agent for all Extraordinary
Expenses. Borrowers shall also (a) reimburse Agent for all reasonable legal, accounting,
appraisal, Vessel Appraisal, consulting, and other fees, costs and expenses incurred by it in
connection with (i) negotiation and preparation of any Loan Documents, including any amendment or
other modification thereof; (ii) administration of and actions relating to any Collateral, Loan
Documents and transactions contemplated thereby, including any actions taken to perfect or maintain
priority of Agent’s or Security Trustee’s Liens on any Collateral, to maintain any insurance
required hereunder or to verify Collateral; and (iii) subject to the limits of Section 10.1.1(b),
each inspection, audit, appraisal or Vessel Appraisal



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with respect to any Obligor or Collateral, whether prepared by Agent’s personnel or a third party,
and (b) reimburse Co-Collateral Agent for all reasonable legal fees, costs and expenses incurred by
it in connection with negotiation and preparation of any Loan Documents on and prior to the Closing
Date; provided, that Borrowers shall not be required to reimburse Co-Collateral Agent for any such
fees, costs and expenses to the extent such fees, costs and expenses exceed $40,000 in the
aggregate. All legal, accounting and consulting fees shall be charged to Borrowers by Agent’s
professionals at their full hourly rates, regardless of any reduced or alternative fee billing
arrangements that Agent, any Lender or any of their Affiliates may have with such professionals
with respect to this or any other transaction. If, for any reason (including inaccurate reporting
on financial statements or a Compliance Certificate), it is determined that a higher Applicable
Margin should have applied to a period than was actually applied, then the proper margin shall be
applied retroactively and Borrowers shall immediately pay to Agent, for the Pro Rata benefit of
Lenders, an amount equal to the difference between the amount of interest and fees that would have
accrued using the proper margin and the amount actually paid. All amounts payable by Borrowers
under this Section shall be reasonably documented and due on demand.




     3.5. Illegality. If any Lender determines that any Applicable Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge
interest rates based upon LIBOR, or any Governmental Authority has imposed material restrictions on
the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to Agent, any obligation of such Lender to
make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until
such Lender notifies Agent that the circumstances giving rise to such determination no longer
exist. Upon delivery of such notice, Borrowers shall prepay or, if applicable, convert all LIBOR
Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or
conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted.



     3.6. Inability to Determine Rates. If Required Lenders notify Agent for any reason in
connection with a request for a Borrowing of, or conversion to or continuation of, a LIBOR Loan
that (a) Dollar deposits are
not being offered to banks in the London interbank Eurodollar market for the applicable amount
and Interest Period of such Loan, (b) adequate and reasonable means do not exist for determining
LIBOR for the requested Interest Period, or (c) LIBOR for the requested Interest Period does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, then Agent will
promptly so notify Borrower Agent and each Lender. Thereafter, the obligation of Lenders to make or
maintain LIBOR Loans shall be suspended until Agent (upon instruction by Required Lenders) revokes
such notice. Upon receipt of such notice, Borrower Agent may revoke any pending request for a
Borrowing of, conversion to or continuation of a LIBOR Loan or, failing that, will be deemed to
have submitted a request for a Base Rate Loan.



     3.7. Increased Costs; Capital Adequacy.



          3.7.1. Change in Law. If any Change in Law shall:




          (a) impose modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement reflected in LIBOR) or
an Issuing Bank;




          (b) subject any Lender or any Issuing Bank to any Tax with respect to any Loan, Loan Document,
Letter of Credit or participation in LC Obligations, or change the basis of taxation of







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payments to such Lender or such Issuing Bank in respect thereof (except for Indemnified Taxes or
Other Taxes covered by Section 5.9 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or such Issuing Bank); or




          (c) impose on any Lender or any Issuing Bank or the London interbank market any other
condition, cost or expense affecting any Loan, Loan Document, Letter of Credit or participation in
LC Obligations;


and the result thereof shall be to increase the cost to such Lender of making or maintaining any
LIBOR Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to
such Lender or sicj Issuing Bank of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender or such Issuing Bank,
Borrowers will pay to such Lender or such Issuing Bank, as applicable, such additional amount or
amounts as will compensate such Lender or such Issuing Bank, as applicable, for such additional
costs incurred or reduction suffered, it being understood that this Section 3.7.1 shall not apply
to Taxes.




          3.7.2. Capital Adequacy. If any Lender or any Issuing Bank determines that any Change in Law
affecting such Lender or such Issuing Bank or any Lending Office of such Lender or such Lender’s or
such Issuing Bank’s holding company, if any, regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s, such Issuing Bank’s or holding company’s
capital as a consequence of this Agreement, or such Lender’s or such Issuing Bank’s Commitments,
Loans, Letters of Credit or participations in LC Obligations, to a level below that which such
Lender, such Issuing Bank or holding company could have achieved but for such Change in Law (taking
into consideration such Lender’s, such Issuing Bank’s and holding company’s policies with respect
to capital adequacy), then from time to time Borrowers will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate it or its holding company for
any such reduction suffered.




          3.7.3. Compensation. Failure or delay on the part of any Lender or such Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of its right to demand such
compensation, but Borrowers shall not be required to compensate a Lender or such Issuing Bank for
any increased costs incurred or reductions suffered more than nine months prior to the date that
the Lender or a Issuing Bank notifies Borrower
Agent of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month
period referred to above shall be extended to include the period of retroactive effect thereof).




     3.8. Mitigation. If any Lender gives a notice under Section 3.5 or requests
compensation under Section 3.7, or if Borrowers are required to pay additional amounts with respect
to a Lender under Section 5.9, then such Lender shall use reasonable efforts to designate a
different Lending Office or to assign its rights and obligations hereunder to another of its
offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment
(a) would eliminate the need for such notice or reduce amounts payable in the future, as
applicable; and (b) in each case, would not subject such Lender to any unreimbursed cost or expense
and would not otherwise be disadvantageous to such Lender. Borrowers agree to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



     3.9. Funding Losses. If for any reason (other than default by a Lender) (a) any
Borrowing of, or conversion to or continuation of, a LIBOR Loan does not occur on the date
specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not
withdrawn), (b) any



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repayment or conversion of a LIBOR Loan occurs on a day other than the end of its Interest Period,
or (c) Borrowers fail to repay a LIBOR Loan when required hereunder, then Borrowers shall pay to
Agent its customary administrative charge and to each Lender all losses and expenses that it
sustains as a consequence thereof, including loss of anticipated profits and any loss or expense
arising from liquidation or redeployment of funds or from fees payable to terminate deposits of
matching funds. Lenders shall not be required to purchase Dollar deposits in the London interbank
market or any other offshore Dollar market to fund any LIBOR Loan, but the provisions hereof shall
be deemed to apply as if each Lender had purchased such deposits to fund its LIBOR Loans.




     3.10. Maximum Interest. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by Applicable Law (“maximum rate”). If
Agent or any Lender shall receive interest in an amount that exceeds the maximum rate, the excess
interest shall be applied to the principal of the Obligations or, if it exceeds such unpaid
principal, refunded to Borrowers. In determining whether the interest contracted for, charged or
received by Agent or a Lender exceeds the maximum rate, such Person may, to the extent permitted by
Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium
rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize,
prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.



     3.11. Replacement of Lenders. If any Lender requests compensation under Section 3.7,
or if the Borrowers are required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 5.9 or if any determination described
in Section 3.6 is made by Required Lenders, or if any Lender defaults in its obligation to fund
Loans hereunder, or if any Lender refuses to consent to any amendment, waiver or other modification
of any Loan Document requested by the Borrowers that requires the consent of 100% of Lenders or
100% of all affected Lenders which, in each case, has been consented to by Required Lenders, then
the Borrowers may, at their sole expense and effort, upon notice to such Lender and Agent, require
such Lender (or any Lender among such Required Lenders) to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in Section 13.1), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a
Lender accepts such assignment); provided, that (i) the Borrowers shall have received the
prior written consent of Agent, which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees, and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in
the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim
for compensation under Section 3.7 or payments required to be made pursuant to Section 5.9, such
assignment will result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and
delegation cease to apply.



SECTION 4. LOAN ADMINISTRATION




     4.1. Manner of Borrowing and Funding Loans.



          4.1.1. Notice of Borrowing.




          (a) Whenever Borrowers desire funding of a Borrowing of Loans, Borrower Agent shall give Agent
a Notice of Borrowing. Such notice must be received by Agent no later than 1:00 p.m. (i) on the
Business Day of the requested funding date, in the case of Base Rate Loans, and (ii) at least three
Business Days prior to the requested funding date, in the case of LIBOR Loans. Notices received







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after 1:00 p.m. shall be deemed received on the next Business Day. Each Notice of Borrowing shall
be irrevocable and shall specify (A) the amount of the Borrowing, (B) the requested funding date
(which must be a Business Day), (C) whether the Borrowing is to be made as Base Rate Loans or LIBOR
Loans, and (D) in the case of LIBOR Loans, the duration of the applicable Interest Period (which
shall be deemed to be one month if not specified).




          (b) Unless payment is otherwise timely made by Borrowers, the becoming due of any Obligations
(whether principal, interest, fees or other charges, including Extraordinary Expenses, LC
Obligations, Cash Collateral and Bank Product Debt) shall be deemed to be a request for Base Rate
Loans on the due date, in the amount of such Obligations. The proceeds of such Loans shall be
disbursed as direct payment of the relevant Obligation. In addition, Agent may, at its option,
charge such Obligations against any operating, investment or other account of a Borrower maintained
with Agent or any of its Affiliates.




          (c) If Borrowers establish a controlled disbursement account with Agent or any Affiliate of
Agent, then the presentation for payment of any check or other item of payment drawn on such
account at a time when there are insufficient funds to cover it shall be deemed to be a request for
Base Rate Loans on the date of such presentation, in the amount of the check and items presented
for payment. The proceeds of such Loans may be disbursed directly to the controlled disbursement
account or other appropriate account.




          4.1.2. Fundings by Lenders. Each Lender shall timely honor its Commitment by funding its Pro
Rata share of each Borrowing of Loans that is properly requested hereunder. Except for Borrowings
to be made as Swingline Loans, Agent shall endeavor to notify Lenders of each Notice of Borrowing
(or deemed request for a Borrowing) by 2:00 p.m. on the proposed funding date for Base Rate Loans
or by 3:00 p.m. at least two Business Days before any proposed funding of LIBOR Loans. Each Lender
shall fund to Agent such Lender’s Pro Rata share of the Borrowing to the account specified by Agent
in immediately available funds not later than 3:00 p.m. on the requested funding date, unless
Agent’s notice is received after the times provided above, in which event Lender shall fund its Pro
Rata share by 11:00 a.m. on the next Business Day. Subject to its receipt of such amounts from
Lenders, Agent shall disburse the proceeds of the Loans as directed by Borrower Agent. Unless Agent
shall have received (in sufficient time to act) written notice from a Lender that it does not
intend to fund its Pro Rata share of a Borrowing, Agent may assume that such Lender has
deposited or promptly will deposit its share with Agent, and Agent may disburse a
corresponding amount to Borrowers. If a Lender’s share of any Borrowing is not in fact received by
Agent, then Borrowers agree to repay to Agent on demand the amount of such share, together with
interest thereon from the date disbursed until repaid, at the rate applicable to such Borrowing.




          4.1.3. Swingline Loans; Settlement.




          (a) Agent may, but shall not be obligated to, advance Swingline Loans to Borrowers, up to an
aggregate outstanding amount of $10,000,000, unless the funding is specifically required to be made
by all Lenders hereunder. Each Swingline Loan shall constitute a Loan for all purposes, except that
payments thereon shall be made to Agent for its own account. The obligation of Borrowers to repay
Swingline Loans shall be evidenced by the records of Agent and need not be evidenced by any
promissory note.




          (b) To facilitate administration of the Loans, Lenders and Agent agree (which agreement is
solely among them, and not for the benefit of or enforceable by any Borrower) that settlement among
them with respect to Swingline Loans and other Loans may take place periodically on a date
determined from time to time by Agent, which shall occur at least once each week. On each
settlement date, settlement shall be made with each Lender in accordance with the Settlement Report







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delivered by Agent to Lenders. Between settlement dates, Agent may in its discretion apply payments
on Loans to Swingline Loans, regardless of any designation by Borrower or any provision herein to
the contrary. Each Lender’s obligation to make settlements with Agent is absolute and
unconditional, without offset, counterclaim or other defense, and whether or not the Commitments
have terminated, an Overadvance exists or the conditions in Section 6 are satisfied. If, due to an
Insolvency Proceeding with respect to a Borrower or otherwise, any Swingline Loan may not be
settled among Lenders hereunder, then each Lender shall be deemed to have purchased from Agent a
Pro Rata participation in each unpaid Swingline Loan and shall transfer the amount of such
participation to Agent, in immediately available funds, within one Business Day after Agent’s
request therefor.




          4.1.4. Notices. Each Borrower authorizes Agent and Lenders to extend, convert or continue
Loans, effect selections of interest rates, and transfer funds to or on behalf of Borrowers based
on telephonic or e-mailed instructions. Borrowers shall confirm each such request by prompt
delivery to Agent of a Notice of Borrowing or Notice of Conversion/Continuation, if applicable, but
if it differs in any material respect from the action taken by Agent or Lenders, the records of
Agent and Lenders shall govern. Neither Agent nor any Lender shall have any liability for any loss
suffered by a Borrower as a result of Agent or any Lender acting upon its understanding of
telephonic or e-mailed instructions from a person believed in good faith by Agent or any Lender to
be a person authorized to give such instructions on a Borrower’s behalf.




     4.2. Defaulting Lender. Agent may (but shall not be required to), in its discretion,
retain payments that would otherwise be made to a Defaulting Lender hereunder, apply the payments
to such Defaulting Lender’s defaulted obligations or readvance the funds to Borrowers in accordance
with this Agreement. The failure of any Lender to fund a Loan or to make a payment in respect of a
LC Obligation shall not relieve any other Lender of its obligations hereunder, and no Lender shall
be responsible for default by another Lender. Lenders and Agent agree (which agreement is solely
among them, and not for the benefit of or enforceable by any Borrower) that, solely for purposes of
determining a Defaulting Lender’s right to vote on matters relating to the Loan Documents and to
share in payments, fees and Collateral proceeds thereunder, a Defaulting Lender shall not be deemed
to be a “Lender” until all its defaulted obligations have been cured.



     4.3. Number and Amount of LIBOR Loans; Determination of Rate. For ease of
administration, all LIBOR Loans having the same length
and beginning date of their Interest Periods shall be aggregated together, and such Borrowings
shall be allocated among Lenders on a Pro Rata basis. No more than eight (8) Borrowings of LIBOR
Loans may be outstanding at any time, and each Borrowing of LIBOR Loans when made shall be in a
minimum amount of $5,000,000, or an increment of $1,000,000 in excess thereof. Upon determining
LIBOR for any Interest Period requested by Borrowers, Agent shall promptly notify Borrowers thereof
by telephone or electronically and, if requested by Borrowers, shall confirm any telephonic notice
in writing.



     4.4. Borrower Agent. Each Borrower hereby designates UNITED MARITIME GROUP, LLC, a
Florida limited liability company (“Borrower Agent”), as its representative and agent for
all purposes under the Loan Documents, including requests for Loans and Letters of Credit,
designation of interest rates, delivery or receipt of communications, preparation and delivery of
Borrowing Base Certificates and financial reports, receipt and payment of Obligations, requests for
waivers, amendments or other accommodations, actions under the Loan Documents (including in respect
of compliance with covenants), and all other dealings with Agent, any Issuing Bank or any Lender.
Borrower Agent hereby accepts such appointment. Agent and Lenders shall be entitled to rely upon,
and shall be fully protected in relying upon, any notice or communication (including any notice of
borrowing) delivered by Borrower Agent on behalf of any Borrower. Agent and Lenders may give any
notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower.
Each of Agent, Issuing Banks and Lenders shall have the right, in its discretion, to deal
exclusively with Borrower Agent for any or all



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purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication,
representation, agreement or undertaking made on its behalf by Borrower Agent shall be binding upon
and enforceable against it.




     4.5. One Obligation. The Loans, LC Obligations and other Obligations shall constitute
one general obligation of Borrowers and (unless otherwise expressly provided in any Loan Document)
shall be secured by Agent’s and Security Trustee’s Lien upon all Collateral; provided,
however, that Agent and each Lender shall be deemed to be a creditor of, and the holder of
a separate claim against, each Borrower to the extent of any Obligations jointly or severally owed
by such Borrower.



          Each Borrower is accepting joint and several liability hereunder and under the other Loan
Documents in consideration of the financial accommodations to be provided by the Lender Group under
this Agreement, for the mutual benefit, directly and indirectly, of each Borrower and in
consideration of the undertakings of the other Borrowers to accept joint and several liability for
the Obligations. Each Borrower, jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other
Borrowers, with respect to the payment and performance of all of the Obligations (including any
Obligations arising under this Section 4.5), it being the intention of the parties hereto that all
the Obligations shall be the joint and several obligations of each Borrower without preferences or
distinction among them. If and to the extent that any Borrower shall fail to make any payment with
respect to any of the Obligations as and when due or to perform any of the Obligations in
accordance with the terms thereof, then in each such event the other Borrowers will make such
payment with respect to, or perform, such Obligation. The Obligations of each Borrower under the
provisions of this Section 4.5 constitute the absolute and unconditional, full recourse Obligations
of each Borrower enforceable against each Borrower to the full extent of its properties and assets,
irrespective of the validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.




     Except as otherwise expressly provided in this Agreement, each Borrower hereby waives notice
of acceptance of its joint and several liability, notice of any Advances or Letters of Credit
issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of
Default, or of any demand for any payment under this Agreement, notice of any action at any time
taken or omitted by Agent or Lenders under or in respect of any of the Obligations, any requirement
of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all
demands, notices and other formalities of every kind in connection with this Agreement (except
as otherwise provided in this Agreement). Each Borrower hereby assents to, and waives notice of,
any extension or postponement of the time for the payment of any of the Obligations, the acceptance
of any payment of any of the Obligations, the acceptance of any partial payment thereon, any
waiver, consent or other action or acquiescence by Agent or Lenders at any time or times in respect
of any default by any Borrower in the performance or satisfaction of any term, covenant, condition
or provision of this Agreement, any and all other indulgences whatsoever by Agent or Lenders in
respect of any of the Obligations, and the taking, addition, substitution or release, in whole or
in part, at any time or times, of any security for any of the Obligations or the addition,
substitution or release, in whole or in part, of any Borrower. Without limiting the generality of
the foregoing, each Borrower assents to any other action or delay in acting or failure to act on
the part of Agent or Lender with respect to the failure by any Borrower to comply with any of its
respective Obligations, including, without limitation, any failure strictly or diligently to assert
any right or to pursue any remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 4.5 afford grounds for terminating,
discharging or relieving any Borrower, in whole or in part, from any of its Obligations under this
Section 4.5, it being the intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the Obligations of each Borrower under this Section 4.5 shall not be
discharged except by performance and then only to the extent of such performance. The Obligations
of each Borrower under this Section 4.5 shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation,



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reconstruction or similar proceeding with respect to any Borrower or any Agent or Lender.




     Each Borrower hereby agrees that it will not enforce any of its rights of contribution or
subrogation against any other Borrower with respect to any liability incurred by it hereunder or
under any of the other Loan Documents, any payments made by it to Agent or Lenders with respect to
any of the Obligations or any collateral security therefor until such time as all of the
Obligations have been paid in full in cash. Any claim which any Borrower may have against any other
Borrower with respect to any payments to Agent or Lender hereunder or under any other Loan
Documents are hereby expressly made subordinate and junior in right of payment, without limitation
as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in
full in cash of the Obligations and, in the event of any insolvency, bankruptcy, receivership,
liquidation, reorganization or other similar proceeding under the laws of any jurisdiction relating
to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations
shall be paid in full in cash before any payment or distribution of any character, whether in cash,
securities or other property, shall be made to any other Borrower therefor.



     Each Borrower hereby agrees that, after the occurrence and during the continuance of any
Default or Event of Default, the payment of any amounts due with respect to the indebtedness owing
by any Borrower to any other Borrower is hereby subordinated to the prior payment in full in cash
of the Obligations. Each Borrower hereby agrees that after the occurrence and during the
continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise
attempt to collect any indebtedness of any other Borrower owing to such Borrower until the
Obligations shall have been paid in full in cash. If, notwithstanding the foregoing sentence, such
Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by such Borrower as trustee for Agent, and such
Borrower shall deliver any such amounts to Agent for application to the Obligations in accordance
with Section 4.5.



     4.6. Effect of Termination. On the effective date of any termination of the
Commitments, all Obligations shall be immediately due and payable, and any Bank Product Provider
may terminate its Bank Products (including, only with the consent of Agent, any Cash Management
Services). All undertakings of Borrowers contained in the Loan Documents shall survive any
termination, and Agent shall retain its Liens in the Collateral and all of its rights and remedies
under the Loan Documents until Full Payment of the
Obligations. Notwithstanding Full Payment of the Obligations, Agent shall not be required to
terminate its Liens in any Collateral unless, with respect to any damages Agent may incur as a
result of the dishonor or return of Payment Items applied to Obligations, Agent receives (a) a
written agreement, executed by Borrowers and any Person whose advances are used in whole or in part
to satisfy the Obligations, indemnifying Agent and Lenders from any such damages; or (b) such Cash
Collateral as Agent, in its discretion, deems necessary to protect against any such damages. The
provisions of Sections 2.3, 3.4, 3.6, 3.7, 3.9, 5.5, 5.9, 12, 14.2 and this Section, and the
obligation of each Obligor and Lender with respect to each indemnity given by it in any Loan
Document, shall survive Full Payment of the Obligations and any release relating to this credit
facility.



SECTION 5. PAYMENTS




     5.1. General Payment Provisions. All payments of Obligations shall be made in Dollars,
without offset, counterclaim or defense of any kind, free of (and without deduction for) any Taxes,
and in immediately available funds, not later than 12:00 noon on the due date. Any payment after
such time shall be deemed made on the next Business Day. If any payment under the Loan Documents
shall be stated to be due on a day other than a Business Day, the due date shall be extended to the
next Business Day and such extension of time shall be included in any computation of interest and
fees. Any payment of a LIBOR Loan prior to the end of its Interest Period shall be accompanied by
all amounts due under Section 3.9. Any prepayment of Loans shall be applied first to Base Rate
Loans and then to LIBOR Loans; provided, however, that as long as no Event of Default exists,
prepayments of LIBOR Loans may,



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at the option of Borrowers and Agent, be held by Agent as Cash Collateral and applied to such Loans
at the end of their Interest Periods.




     5.2. Repayment of Loans. Loans shall be due and payable in full on the Revolver
Termination Date, unless payment is sooner required hereunder. Loans may be prepaid from time to
time, without penalty or premium. If any Asset Disposition includes the disposition of Accounts or
Inventory, then Net Proceeds equal to the greater of (a) the net book value of such Accounts and
Inventory, or (b) the reduction in the Borrowing Base upon giving effect to such disposition, shall
be applied to the Loans. Notwithstanding anything herein to the contrary, if an Overadvance
exists, Borrowers shall, on the sooner of Agent’s demand or the first Business Day after any
Borrower has knowledge thereof, repay the outstanding Loans in an amount sufficient to reduce the
principal balance of Loans to the Borrowing Base.



     5.3. Mandatory Payments. Concurrently with the receipt by any Obligor or its designee
of Net Proceeds from any Permitted Asset Disposition of PL480 Vessels, Borrowers shall repay Loans
in an amount equal to 65% of such Net Proceeds of such Asset Disposition and Agent and
Co-Collateral Agent shall establish a reserve in such amount, which reserves shall be reduced in
amounts equal to the amount of Capital Expenditures made with respect to purchases of assets
germane to Borrowers’ business, which Capital Expenditures are made in the Ordinary Course of
Business, as such business exists as of the Closing Date;
provided, that Borrowers shall not be
required to repay Loans pursuant to this Section 5.3 if, concurrently with such Permitted Asset
Disposition of PL480 Vessels, Borrowers deposit an amount equal to 65% of the Net Proceeds of such
Asset Disposition into a Dominion Account from which Borrowers shall be permitted to make
withdrawals exclusively for the purpose of making Capital Expenditures for assets germane to the
Borrowers’ business, which Capital Expenditures are made by Borrowers in the Ordinary Course of
Business, as such business exists as of the Closing Date. For the avoidance of doubt, the repayment
of Loans pursuant to this Section 5.3 shall not require a reduction in the Commitments.



     5.4. Payment of Other Obligations. Obligations other than Loans, including LC
Obligations and Extraordinary Expenses, shall be paid by Borrowers as provided in the Loan
Documents or, if no payment date is specified, on demand.



     5.5. Marshaling; Payments Set Aside. None of Agent or Lenders shall be under any
obligation to marshal any assets in favor of any Obligor or against any Obligations. If any payment
by or on behalf of Borrowers is
made to Agent, any Issuing Bank or any Lender, or Agent, any Issuing Bank or any Lender
exercises a right of setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by Agent, such Issuing Bank or such Lender in
its discretion) to be repaid to a trustee, receiver or any other Person, then to the extent of such
recovery, the Obligation originally intended to be satisfied, and all Liens, rights and remedies
relating thereto, shall be revived and continued in full force and effect as if such payment had
not been made or such setoff had not occurred.




	5.6.	 	Post-Default Allocation of Payments.





          5.6.1. Allocation. Notwithstanding anything herein to the contrary, during an Event of
Default, monies to be applied to the Obligations, whether arising from payments by Obligors,
realization on Collateral, setoff or otherwise, shall be allocated as follows:




          (a) first, to all costs and expenses, including Extraordinary Expenses, owing to
Agent, Co-Collateral Agent, Lenders, Issuing Banks or Underlying Issuer;





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          (b) second, to all Obligations constituting fees (excluding amounts relating to Bank
Products) owing to Agent, Co-Collateral Agent, Lenders, Issuing Banks or Underlying Issuer;




          (c) third, to all Obligations constituting interest (excluding amounts relating to Bank
Products) owing to Agent, Co-Collateral Agent, Lenders, Issuing Banks or Underlying Issuer;




          (d) fourth, pro rata, to Cash Collateralize outstanding Letters of Credit (which Cash
Collateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and when
such disbursement occurs and, if a Letter of Credit expires undrawn, the Cash Collateral held by
Agent in respect of such Letter of Credit shall, to the extent permitted by applicable law, be
reapplied pursuant to this Section 5.6.1, beginning with clause (a) hereof), and to all other
Obligations constituting principal, other than Bank Product Debt;




          (e) fifth, to Bank Product Debt (which Cash Collateral may be released to the applicable Bank
Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any
amounts due and payable with respect to Bank Product Debt owed to such Bank Product Provider as and
when such amounts first become due and payable and, if and at such time as all such Bank Product
Debt is paid or otherwise satisfied in full, the Cash Collateral in respect of such Bank Product
Debt shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 5.6.1,
beginning with clause (a) hereof); and




          (f) last, to all other Obligations.



Amounts shall be applied to each category of Obligations set forth above until Full Payment thereof
and then to the next category. If amounts are insufficient to satisfy a category, they shall be
applied on a pro rata basis among the Obligations in the category. In connection with amounts
distributed with respect to any Bank Product Debt, Agent shall be entitled to assume no amounts are
due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written
certification (setting forth a reasonably detailed calculation) to Agent as to the amounts that are
due and owing to it and such written certification is received by Agent a reasonable period of time
prior to the making of such distribution. Agent shall have no obligation to calculate the amount
due and payable with respect to any Bank Products, but may rely upon the written certification of
the amount due and payable from the relevant Bank Product Provider. In the absence of an updated
certification, Agent shall be entitled to assume that the amount due and payable to the relevant
Bank Product Provider is the amount last certified to Agent by such Bank Product Provider as being
due and payable (less any distributions made to such Bank Product Provider on account thereof). The
allocations set forth in this Section are solely to determine the rights and priorities of Agent
and Lenders as among themselves, and may be changed by agreement among them without the consent of
any Obligor. This Section is not for the benefit of or enforceable by any Borrower.




          5.6.2. Erroneous Application. Agent shall not be liable for any application of amounts made by
it in good faith and, if any such application is subsequently determined to have been made in
error, the sole recourse of any Lender or other Person to which such amount should have been made
shall be to recover the amount from the Person that actually received it (and, if such amount was
received by any Lender, such Lender hereby agrees to return it).




     5.7. Application of Payments. The ledger balance in the main Dominion Account as of
the end of a Business Day shall be applied to the Obligations at the beginning of the next Business
Day, during any Cash Dominion Trigger Period. If, as a result of such application, a credit balance
exists, the balance shall not accrue interest in favor of Borrowers and shall be made available to
Borrowers as long as no Default or Event of Default exists. During any such Cash Dominion Trigger
Period, each Borrower irrevocably waives the right to direct the application of any payments or
Collateral proceeds, and agrees



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that Agent shall have the continuing, exclusive right to apply and reapply same against the
Obligations, in such manner as Agent deems advisable, notwithstanding any entry by Agent in its
records.




     5.8. Loan Account; Account Stated.



          5.8.1. Loan Account. Agent shall maintain in accordance with its usual and customary practices
an account or accounts (“Loan Account”) evidencing the Debt of Borrowers resulting from each Loan
or issuance by Issuing Banks or Underlying Issuer of a Letter of Credit from time to time. Any
failure of Agent to record anything in the Loan Account, or any error in doing so, shall not limit
or otherwise affect the obligation of Borrowers to pay any amount owing hereunder. Agent may
maintain a single Loan Account in the name of Borrower Agent, and each Borrower confirms that such
arrangement shall have no effect on the joint and several character of its liability for the
Obligations.




          5.8.2. Entries Binding. Entries made in the Loan Account shall constitute presumptive evidence
of the information contained therein. If any information contained in the Loan Account is provided
to or inspected by any Person, then such information shall be conclusive and binding on such Person
for all purposes absent manifest error, except to the extent such Person notifies Agent in writing
within 30 days after receipt or inspection that specific information is subject to dispute.




     5.9. Taxes.



          5.9.1. Payments Free of Taxes. Any and all payments by any Obligor on account of any
Obligations shall be made free and clear of and without reduction or withholding for any
Indemnified Taxes or Other Taxes, provided that if an Obligor shall be required by Applicable Law
to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (a) the sum
payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) Agent, Lender or an Issuing
Bank, as the case may be, receives an amount equal to the sum it would have received had no such
deductions been made; (b) the Obligor shall make such deductions; and (c) Borrowers shall timely
pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable
Law. Without limiting the foregoing, Borrowers shall timely pay all Other Taxes to the relevant
Governmental Authorities.




          5.9.2. Payment. Borrowers shall indemnify, hold harmless and reimburse Agent, Lenders and
Issuing Banks, within 10 Business Days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by Agent, any Lender or any Issuing
Bank with respect to any Obligations, Letters of Credit or Loan Documents, and any penalties,
interest and reasonable expenses, but excluding any additional amounts resulting from the gross
negligence or willful misconduct of Agent, any Lender or any Issuing Bank, arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability (with reasonable details as to the basis therefor) delivered to
Borrower Agent by a Lender or an Issuing Bank (with a copy to Agent), or by Agent, shall be
conclusive absent manifest error. As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by a Borrower, Borrower Agent shall deliver to Agent a receipt issued by the
Governmental Authority evidencing such payment or other evidence of payment reasonably satisfactory
to Agent.




     5.10. Foreign Lenders.



          5.10.1. Exemption. Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which an Obligor is resident for tax purposes,
or any treaty to which such jurisdiction is a party, with respect to payments under any Loan






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Document shall deliver to Agent and Borrower Agent, at the time or times prescribed by Applicable
Law or reasonably requested by Agent or Borrower Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by Agent or
Borrower Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably
requested by Agent or Borrower Agent as will enable Agent and Borrower Agent to determine whether
or not such Lender is subject to backup withholding or information reporting requirements.




          5.10.2. Documentation. Without limiting the generality of the foregoing, if a Borrower is
resident for tax purposes in the United States, a Foreign Lender shall deliver to Agent and
Borrower Agent (in such number of copies as shall be requested by the recipient) on or prior to the
date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon
the request of Agent or Borrower Agent, but only if such Foreign Lender is legally entitled to do
so), (a) duly completed copies of IRS Form W-8BEN claiming eligibility for benefits of an income
tax treaty to which the United States is a party; (b) duly completed copies of IRS Form W-8ECI; (c)
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under
section 881(c) of the Code, (i) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of
any Obligor within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code, and (ii) duly completed copies of IRS
Form W-8BEN; or (d) any other form prescribed by Applicable Law as a basis for claiming exemption
from or a reduction in United States federal withholding tax, duly completed together with such
supplementary documentation as may be prescribed by Applicable Law to permit Borrowers to determine
the withholding or deduction required to be made.




     5.11. Nature and Extent of Each Borrower’s Liability.



          5.11.1. Joint and Several Liability. Each Borrower agrees that it is jointly and severally
liable for, and absolutely and unconditionally guarantees to Agent and Lenders the prompt payment
and performance of, all Obligations and all agreements under the Loan Documents. Each Borrower
agrees that its guaranty obligations hereunder constitute a continuing guaranty of payment and not
of collection, that such obligations shall not be discharged until Full Payment of the Obligations,
and that such obligations are absolute and unconditional, irrespective of (a) the genuineness,
validity, regularity, enforceability, subordination or any future modification of, or change in,
any Obligations or Loan Document, or any other document, instrument or agreement to which any
Obligor is or may become a party or be bound; (b) the absence of any action to enforce this
Agreement (including this Section) or any other Loan Document, or any waiver, consent or indulgence
of any kind by Agent or any Lender with respect thereto; (c) the existence, value or condition of,
or failure to perfect a Lien or to preserve rights against, any security or guaranty for the
Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof
(including the release of any security or guaranty); (d) the insolvency of any Obligor; (e) any
election by Agent or any Lender in an Insolvency Proceeding for the application of Section
1111(b)(2) of the Bankruptcy Code; (f) any borrowing or grant of a Lien by any other Borrower, as
debtor-in-possession under Section 364 of the Bankruptcy Code or otherwise; (g) the disallowance of
any claims of Agent or any Lender against any Obligor for the repayment of any Obligations under
Section 502 of the Bankruptcy Code or otherwise; or (h) any other action or circumstances that
might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor,
except Full Payment of all Obligations.




     5.11.2. Waivers.



     (a) Each Borrower expressly waives all rights that it may have now or in the future under any
statute, at common law, in equity or otherwise, to compel Agent or Lenders to
marshal assets or to proceed against any Obligor, other Person or security for the payment or
performance of any



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Obligations before, or as a condition to, proceeding against such Borrower. Each Borrower waives
all defenses available to a surety, guarantor or accommodation co-obligor other than Full Payment
of all Obligations. It is agreed among each Borrower, Agent and Lenders that the provisions of this
Section 5.11 are of the essence of the transaction contemplated by the Loan Documents and that, but
for such provisions, Agent and Lenders would decline to make Loans and issue Letters of Credit.
Each Borrower acknowledges that its guaranty pursuant to this Section is necessary to the conduct
and promotion of its business, and can be expected to benefit such business.




          (b) Agent and Lenders may, in their discretion, pursue such rights and remedies as they deem
appropriate, including realization upon Collateral or any Real Estate by judicial foreclosure or
non-judicial sale or enforcement, without affecting any rights and remedies under this Section
5.11. If, in taking any action in connection with the exercise of any rights or remedies, Agent or
any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency
judgment against any Borrower or other Person, whether because of any Applicable Laws pertaining to
“election of remedies” or otherwise, each Borrower consents to such action and waives any claim
based upon it, even if the action may result in loss of any rights of subrogation that any Borrower
might otherwise have had. Any election of remedies that results in denial or impairment of the
right of Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair
any other Borrower’s obligation to pay the full amount of the Obligations. Each Borrower waives all
rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with
respect to any security for the Obligations, even though that election of remedies destroys such
Borrower’s rights of subrogation against any other Person. Agent may bid all or a portion of the
Obligations at any foreclosure or trustee’s sale or at any private sale, and the amount of such bid
need not be paid by Agent but shall be credited against the Obligations. The amount of the
successful bid at any such sale, whether Agent or any other Person is the successful bidder, shall
be conclusively deemed to be the fair market value of the Collateral, and the difference between
such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the
amount of the Obligations guaranteed under this Section 5.11, notwithstanding that any present or
future law or court decision may have the effect of reducing the amount of any deficiency claim to
which Agent or any Lender might otherwise be entitled but for such bidding at any such sale.




          5.11.3. Extent of Liability; Contribution.




          (a) Notwithstanding anything herein to the contrary, each Borrower’s liability under this
Section 5.11 shall be limited to the greater of (i) all amounts for which such Borrower is
primarily liable, as described below, and (ii) such Borrower’s Allocable Amount.




          (b) If any Borrower makes a payment under this Section 5.11 of any Obligations (other than
amounts for which such Borrower is primarily liable) (a “Guarantor Payment”) that, taking into
account all other Guarantor Payments previously or concurrently made by any other Borrower, exceeds
the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate
Obligations satisfied by such Guarantor Payments in the same proportion that such Borrower’s
Allocable Amount bore to the total Allocable Amounts of all Borrowers, then such Borrower shall be
entitled to receive contribution and indemnification payments from, and to be reimbursed by, each
other Borrower for the amount of such excess, pro rata based upon their respective Allocable
Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any
Borrower shall be the maximum amount that could then be recovered from such Borrower under this
Section 5.11 without rendering such payment voidable under Section 548 of the Bankruptcy Code or
under any applicable state fraudulent transfer or conveyance act, or similar statute or common law.




          (c) Nothing contained in this Section 5.11 shall limit the liability of any Borrower to pay
Loans made directly or indirectly to that Borrower (including Loans advanced to any
other Borrower and then re-loaned or otherwise transferred to, or for the benefit of, such
Borrower), LC Obligations







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relating to Letters of Credit issued to support such Borrower’s business, and all accrued interest,
fees, expenses and other related Obligations with respect thereto, for which such Borrower shall be
primarily liable for all purposes hereunder. Agent and Lenders shall have the right, at any time in
their discretion, to condition Loans and Letters of Credit upon a separate calculation of borrowing
availability for each Borrower and to restrict the disbursement and use of such Loans and Letters
of Credit to such Borrower.




          5.11.4. Joint Enterprise. Each Borrower has requested that Agent and Lenders make this credit
facility available to Borrowers on a combined basis, in order to finance Borrowers’ business most
efficiently and economically. Borrowers’ business is a mutual and collective enterprise, and
Borrowers believe that consolidation of their credit facility will enhance the borrowing power of
each Borrower and ease the administration of their relationship with Lenders, all to the mutual
advantage of Borrowers. Borrowers acknowledge and agree that Agent’s and Lenders’ willingness to
extend credit to Borrowers and to administer the Collateral on a combined basis, as set forth
herein, is done solely as an accommodation to Borrowers and at Borrowers’ request.




          5.11.5. Subordination. Each Borrower hereby subordinates any claims, including any rights at
law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification
or set off, that it may have at any time against any other Obligor, howsoever arising, to the Full
Payment of all Obligations.




     5.12. U.S. Lenders. At the reasonable request of Borrower Agent or Agent, each Lender
that is a United States person within the meaning of Section 7701(a)(30) of the Code and is not an
“exempt recipient” (within the meaning of Treasury Regulations Section 1.6049-4(c)(1)(iii) (without
regard to the third sentence thereof) agrees to complete and deliver to Borrower Agent or Agent, as
the case may be, a duly completed and executed copy of Internal Revenue Service Form W-9 or
successor form.



     5.13. Tax Refunds. If Agent or a Lender (or an assignee) determines in its reasonable
discretion that it has received a refund or credit (in lieu of such refund) of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by a Borrower or with respect to which a
Borrower has paid additional amounts pursuant to Section 5.9, it shall pay over such refund to
Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by
Borrower under Section 5.9 with respect to the Indemnified Taxes or the Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of Agent or such Lender (or assignee) and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such
refund); provided, however, that if Agent or such Lender (or assignee) is required to repay all or
a portion of such refund to the relevant Governmental Authority, Borrowers, upon the request of
Agent or such Lender (or assignee), shall repay the amount paid over to Borrower that is required
to be repaid (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to Agent or such Lender (or assignee) within three Business Days after receipt of
written notice that Agent or such Lender (or assignee) is required to repay such refund (or a
portion thereof) to such Governmental Authority. Nothing contained in this Section 5.13 shall
require Agent or any Lender (or assignee) to make available its Tax returns or any other
information which it deems confidential or privileged to Borrowers or any other person.
Notwithstanding anything to the contrary, in no event will Agent or any Lender (or assignee) be
required to pay any amount to Borrowers the payment of which would place Agent or such Lender (or
assignee) in a less favorable net after-tax position than Agent or such Lender (or assignee) would
have been in if the additional amounts giving rise to such refund of any Indemnified Taxes or Other
Taxes had never been paid.



SECTION 6. CONDITIONS PRECEDENT




     6.1. Conditions Precedent to Initial Loans. In addition to the conditions set forth in
Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or
otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the
following



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conditions has been satisfied or waived in writing by Agent and Required Lenders:




          (a) Notes shall have been executed by Borrowers and delivered to each Lender that requests
issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent
by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof.




          (b) Agent shall have received acknowledgments of all filings or recordations necessary to
perfect its Liens in the Collateral, as well as UCC and Lien searches and other evidence reasonably
satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted
Liens (it being understood that, notwithstanding the filing of the Ship Mortgages with the United
States Coast Guard on the Closing Date, written evidence of the recordation with the United States
Coast Guard of the Ship Mortgage may not be available for a period of up to 180 days following the
Closing Date).




          (c) Agent shall have received the Schedules and Exhibits to this Agreement, satisfactory to
Agent and Co-Collateral Agent.




          (d) Agent shall have received duly executed agreements establishing each Dominion Account and
related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to
Agent.




          (e) Agent shall have received certificates, in form and substance reasonably satisfactory to
it, from a Senior Officer of each Borrower certifying that, after giving effect to the initial
Loans and transactions hereunder and the issuance of the Second Lien Notes and the incurrence of
Debt thereunder and under the Second Lien Documents, (i) the Borrowers and their Subsidiaries,
taken as a whole, are Solvent; (ii) no Default or Event of Default exists; (iii) the
representations and warranties set forth in Section 9 are true and correct; and (iv) such Borrower
has complied with all agreements and conditions to be satisfied by it under the Loan Documents.




          (f) Agent shall have received a certificate of a duly authorized officer of each Obligor,
certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and
in full force and effect, without amendment except as shown; (ii) that an attached copy of
resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that
such resolutions are in full force and effect, were duly adopted, have not been amended, modified
or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii)
to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may
conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in
writing.




          (g) Agent shall have received a written opinion of each of Willkie Farr & Gallagher LLP, Burke
and Parsons, Kruger, Henry and Hunter, Jones Walker and Phelps Dunbar LLP, as well as any local
counsel to Borrowers or Agent, substantially in the forms of Exhibits F, G, H, I and J.




          (h) Agent shall have received copies of the charter documents of each Obligor, certified by
the Secretary of State or other appropriate official of such Obligor’s jurisdiction of
organization. Agent shall have received good standing certificates for each Obligor, issued by the
Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and
each jurisdiction where such Obligor’s conduct of business or ownership of Property necessitates
qualification.




          (i) Agent shall have received copies of policies or certificates of insurance for the
insurance policies carried by Borrowers, all in compliance with the Loan Documents.




          (j) Agent and Lenders shall have completed their business, financial and legal due diligence
of Obligors, including a Vessel Appraisal and a field examination, with results satisfactory to







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Agent and Lenders. Since December 31, 2008, no event shall have occurred that has had or could
reasonably be expected to have a Material Adverse Effect.




          (k) Borrowers shall have paid all fees and expenses to be paid to Agent and Lenders on the
Closing Date.




          (l) Agent shall have received a Borrowing Base Certificate prepared as of November 30, 2009.
Upon giving effect to the initial funding of Loans and issuance of Letters of Credit, and the
payment by Borrowers of all fees and expenses incurred in connection herewith as well as any
payables stretched beyond their customary payment practices, Availability shall be at least
$45,000,000.




          (m) Agent shall have received, in form, scope and substance reasonably satisfactory to it,
certificates of the United States Coast Guard certifying that the Eligible Vessels are owned of
record by the respective Borrowers as shown in Schedule 1.1B.




          (n) Agent shall have received evidence reasonably satisfactory to Agent and Lenders that
Borrowers have issued contemporaneously with the execution and delivery of this Agreement not less
than $200,000,000 in face amount of Second Lien Notes (or unsecured financing on terms and
conditions, and subject to intercreditor arrangements, reasonably satisfactory to Agent and
Lenders).




          (o) Agent shall have received evidence reasonably satisfactory to it that all filings,
consents, or approvals with or of the owners of any Equity Interests of any Obligor, any
Governmental Authority, or any other third party have been made or obtained, as applicable.




          (p) Agent and Lenders shall be reasonably satisfied with Obligors’ compliance with all
Environmental Laws and shall have received all environmental reports reasonably required by Agent.




          (q) No action, suit, investigation, litigation or proceeding shall be pending or threatened in
any court or before any arbitrator or governmental instrumentality that in Agent’s or BAS’s
reasonable judgment (i) could reasonably be expected to have a Material Adverse Effect on Borrowers
and their Subsidiaries, taken as a whole, or (ii) could reasonably be expected to materially and
adversely affect the transactions contemplated hereby.




          (r) Agent and Lenders shall have received, in form and substance reasonably satisfactory to
them, interim financial statements of Borrowers as of October 31, 2009.




     6.2. Conditions Precedent to All Credit Extensions. Agent, Issuing Banks and Lenders
shall not be required to fund any Loans, arrange for issuance of any Letters of Credit or grant any
other accommodation to or for the benefit of Borrowers, unless the following conditions are
satisfied or waived in writing by Agent and Lenders (other than Defaulting Lenders) holding at
least seventy-five percent (75%) of the Commitments:



          (a) No Default or Event of Default shall exist at the time of, or result from, such funding,
issuance or grant;




          (b) The representations and warranties of each Obligor in the Loan Documents shall be true and
correct in all material respects on the date of, and upon giving effect to, such funding, issuance
or grant (except for representations and warranties that expressly relate to an earlier date);




          (c) The calculation of the Borrowing Base, as set forth in the Borrowing Base Certificate most
recently delivered prior to such funding, issuance or grant, or delivered concurrently with any
Notice of Borrowing in respect of such funding, issuance or grant, shall be true and correct in all





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material respects on the date of, and upon giving effect to, such funding, issuance or grant;




          (d) All conditions precedent in any other Loan Document shall be satisfied;




          (e) No event shall have occurred or circumstance exist that has or could reasonably be
expected to have a Material Adverse Effect; and




          (f) With respect to issuance of a Letter of Credit, the LC Conditions shall be satisfied.



Each request (or deemed request) by Borrowers for funding of a Loan, issuance of a Letter of Credit
or grant of an accommodation shall constitute a representation by Borrowers that the foregoing
conditions are satisfied on the date of such request and on the date of such funding, issuance or
grant. As an additional condition to any funding, issuance or grant, Borrowers shall have complied
in all respects with Section 7.6 (without giving effect to any grace or cure period applicable
thereto).




     6.3. Limited Waiver of Conditions Precedent. If Agent, Issuing Banks or Lenders fund
any Loans, arrange for issuance of any Letters of Credit or grant any other accommodation when any
conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or
unknown at the time), it shall not operate as a waiver of (a) the right of Agent, Issuing Banks and
Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent
funding, issuance or grant; nor (b) any Default or Event of Default due to such failure of
conditions or otherwise.



SECTION 7. COLLATERAL




     7.1. Grant of Security Interest. To secure the prompt payment and performance of all
Obligations, each Borrower hereby grants to Agent, for the benefit of Secured Parties, a continuing
security interest in and Lien upon all Property of such Borrower, including all of the following
Property, whether now owned or hereafter acquired, and wherever located:



          (a) all Accounts;




          (b) all Chattel Paper, including electronic chattel paper;




          (c) all Commercial Tort Claims;




          (d) all Deposit Accounts;




          (e) all Documents;




          (f) all General Intangibles, including Intellectual
Property;




          (g) all Goods, including Inventory, Equipment and fixtures;




          (h) all Instruments;




          (i) all Investment Property;




          (j) all Letter-of-Credit Rights;




          (k) all Supporting Obligations;




          (l) all Vessels;





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          (m) all monies, whether or not in the possession or under the control of Agent, a Lender, or a
bailee or Affiliate of Agent or a Lender, including any Cash Collateral;




          (n) all accessions to, substitutions for, and all replacements, products, and cash and
non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to
insurance policies, and claims against any Person for loss, damage or destruction of any
Collateral; and




          (o) all books and records (including customer lists, files, correspondence, tapes, computer
programs, print-outs and computer records) pertaining to the foregoing.




          Notwithstanding anything to the contrary set forth in Section 7.1 above, the types or items of
Collateral described in such Section shall not include (collectively, the “Excluded Property”): (i)
any Excluded Equity, (ii) any rights or interests in any contract, lease, permit, license, charter
or license agreement covering real or personal property, as such, or any Account arising from
freightage, hire, use or charter of any Vessel leased pursuant to a Negative Pledge Vessel Lease,
if under the terms of such contract, lease, permit, charter license agreement or Negative Pledge
Vessel Lease, or applicable law with respect thereto, the valid grant of a security interest or
Lien therein to Agent is prohibited and such prohibition has not been or is not waived or the
consent of the other party to such contract, lease, permit, license, charter license agreement or
Negative Pledge Vessel Lease has not been or is not otherwise obtained or under applicable law such
prohibition cannot be waived, provided, that the forgoing exclusion shall in no way be construed
(A) to apply if any such prohibition is unenforceable under the UCC or other Applicable Law or (B)
so as to limit, impair or otherwise affect Agent’s unconditional continuing security interests in
and Liens upon any rights or interests of any Borrower in or to monies due or to become due under
any such contract, lease, permit, license, charter or license agreement (including any Accounts),
except for the Accounts and proceeds expressly excluded in this clause (ii), (iii) any application
for a trademark that would be invalidated, canceled, voided or abandoned due to the grant and/or
enforcement of such security interest or Lien, including all such United States and foreign
trademark applications that are based on an intent-to-use the mark in commerce, unless and until
such time that the grant and/or enforcement of the security interest or Lien will not cause such
trademark to be invalidated, canceled, voided or abandoned, (iv) Equipment or Fixtures owned by any
Obligor that is subject to a Purchase Money Lien or Capital Lease permitted hereunder, but only to
the extent that the contract pursuant to which such Purchase Money Lien is granted or such Capital
Lease would prohibit the granting of a Lien on such Equipment or Fixtures pursuant hereto, (v)
assets owned by a Guarantor after the release of the guaranty of such Guarantor pursuant to Section
10.2.6, (vi) any Property as to which Agent and Co-Collateral Agent have determined in their sole
discretion that the collateral value thereof is insufficient to justify the difficulty, time and/or
expense of obtaining a perfected security interest therein, (vii) cash and Cash Equivalents in an
amount not to exceed $3,000,000 used to secure Hedging Agreements not constituting Bank Products
hereunder and deposited in an identifiable, segregated deposit account for such purpose, (viii)
Property identified on Schedule 7.1, (ix) certain Deposit Accounts that are used exclusively for
payroll purposes, and (x) Equity Interests in any Unrestricted Subsidiary provided, however, that
Excluded Property shall not include any Proceeds, substitutions or replacements of Excluded
Property (unless such Proceeds, substitutions or replacements would constitute Excluded Property)
and provided, further, if any Excluded Property would have otherwise have constituted Collateral,
when such property shall cease to be Excluded Property, such property shall be deemed at all times
from and after the date hereof to constitute Collateral.




     7.2. Lien on Deposit Accounts; Cash Collateral.



          7.2.1. Deposit Accounts. Each Borrower authorizes and directs each bank or other depository
to deliver to Agent, during any Cash Dominion Trigger Period, on a daily basis, all balances in
each Deposit Account maintained by such Borrower (except as excluded pursuant to item
(vii) in the definition of Excluded Property set forth in Section 7.1 and the exclusions set
forth in Section 8.5) with





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such depository for application to the Obligations then outstanding. Each Borrower irrevocably
appoints Agent, during any Cash Dominion Trigger Period, as such Borrower’s attorney-in-fact to
collect such balances to the extent any such delivery is not so made.




          7.2.2. Cash Collateral. Any Cash Collateral may be invested, at Agent’s discretion, in Cash
Equivalents, but Agent shall have no duty to do so, regardless of any agreement or course of
dealing with any Borrower, and shall have no responsibility for any investment or loss. Each
Borrower hereby grants to Agent, for the benefit of Secured Parties, a security interest in all
Cash Collateral held from time to time and all proceeds thereof, as security for the Obligations,
whether such Cash Collateral is held in a Cash Collateral Account or elsewhere. Agent may apply
Cash Collateral to the payment of any Obligations, in such order as Agent may elect, as they become
due and payable. Each Cash Collateral Account and all Cash Collateral shall be under the sole
dominion and control of Agent. No Borrower or other Person claiming through or on behalf of any
Borrower shall have any right to any Cash Collateral, until Full Payment of all Obligations.




     7.3. Real Estate Collateral.



          7.3.1. Lien on Real Estate. The Obligations shall also be secured by Mortgages upon the
Mortgaged Real Estate, as set forth on Schedule 7.3.1. The Mortgages shall be duly recorded within
90 days of the Closing Date (such time to be extended by Agent in Agent’s sole discretion if
required), at Borrowers’ expense, in each office where such recording is required to constitute a
fully perfected Lien on the Mortgaged Real Estate, and the Related Real Estate Documents shall be
delivered, within 90 days of the Closing Date. If any Borrower acquires Real Estate of an appraised
value exceeding $1,000,000 hereafter, Borrowers shall, within 90 days (such time to be extended by
Agent in Agents sole discretion if required), execute, deliver and record a Mortgage sufficient to
create a first priority Lien in favor of Agent on such Real Estate, and shall deliver all Related
Real Estate Documents.




          7.3.2. Collateral Assignment of Leases. To further secure the prompt payment and performance
of all Obligations, each Borrower hereby transfers and assigns to Agent, for the benefit of Secured
Parties, all of such Borrower’s right, title and interest in, to and under the leases of real
Property as set forth on Schedule 7.3.2 to which such Borrower is a party, whether as lessor or
lessee, and all extensions, renewals, modifications and proceeds thereof, except to the extent
assignment is prohibited by such lease.




     7.4. Other Collateral.



          7.4.1. Commercial Tort Claims. Borrowers shall on or before the next Quarterly Update Date,
notify Agent in writing if any Borrower has a Commercial Tort Claim (other than, as long as no
Default or Event of Default exists, a Commercial Tort Claim for less than $500,000) and, upon
Agent’s request, shall promptly take such actions as Agent deems appropriate to confer upon Agent
(for the benefit of Secured Parties) a duly perfected, first priority Lien upon such claim.




          7.4.2. Certain After-Acquired Collateral. Borrowers shall on or before the next Quarterly
Update Date, notify Agent in writing if, after the Closing Date, any Borrower obtains any interest
in any Collateral consisting of Deposit Accounts, Chattel Paper, Documents, Instruments,
Intellectual Property, Investment Property or Letter-of-Credit Rights and, upon Agent’s request,
shall promptly take such actions as Agent deems appropriate to effect Agent’s duly perfected, first
priority Lien upon such Collateral, including obtaining any appropriate possession, control
agreement or Lien Waiver. If any Collateral is in the possession of a third party, at Agent’s
request, Borrowers shall obtain an acknowledgment that such third party holds the Collateral for
the benefit of Agent.




     7.5. No Assumption of Liability. The Lien on Collateral granted hereunder is given
as



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security only and shall not subject Agent or any Lender to, or in any way modify, any obligation or
liability of Borrowers relating to any Collateral.




     7.6. Further Assurances. Promptly upon request, Borrowers shall deliver such
instruments, assignments, title certificates, or other documents or agreements, and shall take such
actions, as Agent or Security Trustee deems appropriate under Applicable Law to evidence or perfect
its Lien on any Collateral, or otherwise to give effect to the intent of this Agreement. Each
Borrower authorizes Agent and Security Trustee to file any financing statement that indicates the
Collateral as “all assets” or “all personal property” of such Borrower, or words to similar effect,
and ratifies any action taken by Agent or Security Trustee before the Closing Date to effect or
perfect its Lien on any Collateral.



     7.7. Foreign Subsidiary Stock. Notwithstanding Section 7.1, the Collateral shall
include only 65% of the voting stock of any Foreign Subsidiary.



SECTION 8. COLLATERAL ADMINISTRATION




     8.1. Borrowing Base Certificates. By the 15th day of each month, Borrowers shall
deliver to Agent (and Agent shall promptly deliver same to Lenders) a Borrowing Base Certificate
prepared as of the close of business of the previous month, and at such other times as Agent or
Co-Collateral Agent may reasonably request. All calculations of Availability in any Borrowing Base
Certificate shall originally be made by Borrowers and certified by a Senior Officer, provided that
Agent or Co-Collateral Agent may from time to time review and adjust any such calculation (a) to
reflect its reasonable estimate of declines in value of any Collateral, due to collections received
in the Dominion Account or otherwise; (b) to adjust advance rates to reflect changes in dilution,
quality, mix and other factors affecting Collateral; and (c) to the extent the calculation is not
made in accordance with this Agreement or does not accurately reflect the Availability Reserve.
Agent shall provide the Borrowers prompt notice of any change in the Availability Reserve.




	 	8.2.	 	Administration of Accounts.





          8.2.1. Records and Schedules of Accounts. Each Borrower shall keep accurate and complete
records of its Accounts, including all payments and collections thereon, and shall submit to Agent
and Co-Collateral Agent sales, collection, reconciliation and other reports in form reasonably
satisfactory to Agent and Co-Collateral Agent, on such periodic basis as Agent and Co-Collateral
Agent may reasonably request. Each Borrower shall also provide to Agent and Co-Collateral Agent,
on or before the 15th day of each month, a detailed aged trial balance of all Accounts
as of the end of the preceding month, in the form customarily maintained by Borrowers and such
invoices and invoice registers, copies of related documents, repayment histories, status reports
and other information as Agent may reasonably request. If Accounts in an aggregate face amount of
$1,000,000 or more cease to be Eligible Accounts, Borrowers shall notify Agent and Co-Collateral
Agent of such occurrence promptly (and in any event within three (3) Business Days) after any
Borrower has knowledge thereof. Within 180 days after the Closing Date, Borrowers shall put into
effect a system of maintaining records, satisfactory to Agent, which segregates those Accounts
encumbered pursuant to Vessel Lease Agreements from all other Accounts; provided, that the failure
of Borrowers to do so shall not constitute a Default or an Event of Default hereunder; provided,
further, that if such system is not in effect within such period Agent may establish additional
reserves in respect of Accounts as provided in the definition of Vessel Lease Accounts Reserve.




          8.2.2. Taxes. If an Account of any Borrower includes a charge for any Taxes, Agent is
authorized, in its discretion, to pay the amount thereof to the proper taxing authority for the
account of such Borrower and to charge Borrowers therefor; provided, however, that neither Agent
nor Lenders shall be liable for any Taxes that may be due from Borrowers or with respect to any
Collateral.






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          8.2.3. Account Verification. If an Event of Default has occurred and is continuing, Agent and
Co-Collateral Agent shall have the right at any time, in the name of Agent, any designee of Agent
or any Borrower, to verify the validity, amount or any other matter relating to any Accounts of
Borrowers by mail, telephone or otherwise. Borrowers shall cooperate fully with Agent in an effort
to facilitate and promptly conclude any such verification process.




          8.2.4. Maintenance of Dominion Account. Borrowers shall maintain Dominion Accounts pursuant
to lockbox or other arrangements acceptable to Agent. Borrowers shall obtain an agreement (in form
and substance satisfactory to Agent) from each lockbox servicer and Dominion Account bank,
establishing Agent’s control over and Lien in the lockbox or Dominion Account, which may be
exercised by Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all
remittances received in the lockbox to a Dominion Account, and waiving offset rights of such
servicer or bank, except for customary administrative charges. If a Dominion Account is not
maintained with Bank of America, Agent may, during any Cash Dominion Trigger Period, require
immediate transfer of all funds in such account to a Dominion Account maintained with Bank of
America. Neither Agent nor Lenders assume any responsibility to Borrowers for any lockbox
arrangement or Dominion Account, including any claim of accord and satisfaction or release with
respect to any Payment Items accepted by any bank.




          8.2.5. Proceeds of Collateral. Borrowers shall request in writing and otherwise take all
necessary steps to ensure that all payments on Accounts or otherwise relating to Collateral are
made directly to a Dominion Account (or a lockbox relating to a Dominion Account). If any Borrower
or Subsidiary receives cash or Payment Items with respect to any Collateral, it shall hold same in
trust for Agent and promptly (not later than the next Business Day) deposit same into a Dominion
Account.





	 	8.3.	 	Administration of Inventory.





          8.3.1. Records and Reports of Inventory. Each Borrower shall keep accurate and complete
records of its Inventory, including costs and daily withdrawals and additions, and shall submit to
Agent and Co-Collateral Agent inventory and reconciliation reports in form reasonably satisfactory
to Agent and Co-Collateral Agent, on such periodic basis as Agent and Co-Collateral Agent may
reasonably request. Each Borrower shall conduct a physical inventory at least once per calendar
year (and on a more frequent basis if requested by Agent and Co-Collateral Agent when an Event of
Default exists) and periodic cycle counts consistent with historical practices and in accordance
with past practice, and shall provide to Agent and Co-Collateral Agent a report based on each such
inventory and count promptly upon completion thereof, together with such supporting information as
Agent and Co-Collateral Agent may reasonably request. Agent and Co-Collateral Agent may participate
in and observe each physical count.




          8.3.2. Returns of Inventory. No Borrower shall return any Inventory to a supplier, vendor or
other Person, whether for cash, credit or otherwise, unless (a) such return is in the Ordinary
Course of Business; (b) no Default, Event of Default or Overadvance exists or would result
therefrom; (c) Agent is promptly notified if the aggregate Value of all Inventory returned in any
month exceeds $500,000; and (d) any payment received by a Borrower for a return is promptly
remitted to Agent for application to the Obligations.




          8.3.3. Acquisition, Sale and Maintenance. No Borrower shall acquire or accept any Inventory
on consignment or approval, and shall take all steps to assure that all Inventory is produced in
accordance with Applicable Law, including the FLSA to the extent required by Section 9.1.14. No
Borrower shall sell any Inventory on consignment or approval or any other basis under which the
customer may return or require a Borrower to repurchase such Inventory. Borrowers shall use, store
and maintain all Inventory with reasonable care and caution, in accordance with applicable
standards of any insurance and in conformity with all Applicable Law, and shall make current rent
payments (within





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applicable grace periods provided for in leases) at all locations where any Collateral is located.





	 	8.4.	 	Administration of Vessels and Equipment.





          8.4.1. Records and Schedules of Vessels and Equipment. Each Borrower shall keep accurate and
complete records of its Vessels and Equipment, including kind, quality, quantity, cost,
acquisitions and dispositions thereof, and shall submit to Agent and Co-Collateral Agent, on such
periodic basis as Agent may reasonably request, a current schedule thereof, in form reasonably
satisfactory to Agent and Co-Collateral Agent. Promptly upon request, Borrowers shall deliver to
Agent and Co-Collateral Agent evidence of their ownership or interests in any Vessels or Equipment.




          8.4.2. Dispositions of Vessels and Equipment. No Borrower shall sell, lease or otherwise
dispose of any owned Vessels or Equipment, without the prior written consent of Agent, other than
(a) a Permitted Asset Disposition; and (b) replacement of a Vessel or Equipment that is worn,
damaged or obsolete with Vessels and Equipment used or useful by Obligors in the Ordinary Course of
Business, if the replacement Vessels and Equipment are acquired substantially contemporaneously
with such disposition and are free of Liens.




          8.4.3. Condition of Vessels and Equipment. The Vessels and Equipment are in good operating
condition and repair, and all necessary replacements and repairs have been made so that the value
and operating efficiency of the Vessels and Equipment is preserved at all times, reasonable wear
and tear excepted. Each Borrower shall ensure that the Vessels and Equipment are mechanically and
structurally sound, and capable of performing the functions for which it was designed, in
accordance with manufacturer specifications. No Borrower shall permit any Equipment to become
affixed to real Property covered by any of the leases set forth on Schedule 8.4.3 unless any
landlord or mortgagee delivers a Lien Waiver substantially in the form of Exhibit K, provided that
no such Lien Waiver shall be required to be delivered with respect to any real Property if the
Borrowers shall have used commercially reasonable efforts to obtain, but failed within a period of
180 days after the Closing Date to obtain, such Lien Waiver (it being agreed that the use of such
commercially reasonable efforts shall not require (A) the payment by Borrowers of consent fees or
other payments to counterparties, (B) the Borrowers to agree to any modifications to the terms of
the underlying lease with such counterparty in a manner adverse to the interests of the Borrowers,
or (C) the Borrowers to conduct any litigation or legal proceedings with regard thereto).




          8.4.4. Redesignation of Vessels. Borrower Agent may designate any Vessel of any Vessel Type
to be of another Vessel Type; provided, that (a) Borrower Agent shall provide Agent and
Co-Collateral Agent with not less than 30 days prior written notice thereof, in form and substance
reasonably satisfactory to Agent and Co-Collateral Agent, (b) no Vessel shall be designated as a
Vessel of any Vessel Type for a period of less than 6 consecutive months, and (c) any Overadvance
caused by such change of Vessel Type shall be repaid in full on the effective date of such change.
On the effective date of such change, Borrowers shall submit to Agent an amendment to Schedule 1.1B
to incorporate such change.




     8.5. Administration of Deposit Accounts. Schedule 8.5 sets forth all Deposit Accounts
maintained by Borrowers, including all Dominion Accounts. Each Borrower shall take all actions
necessary to establish Agent’s control of each such Deposit Account (other than a Deposit Account
constituting Excluded Property, including, without limitation, a Deposit Account exclusively used
for payroll, payroll taxes, 401(k) and other retirement plans and employee benefits, including,
without limitation, rabbi trusts for deferred compensation and health care benefits, a Deposit
Account containing not more that $10,000 at any time, or a Deposit Account where the balance of
such deposit account is swept at the end of each Business Day into a Deposit Account subject to a
Deposit Account Control Agreement). Each Borrower shall be the sole account holder of each Deposit
Account and shall not allow any other Person (other than Agent) to have control over a Deposit Account or
any Property deposited



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therein. Each Borrower shall promptly notify Agent of any opening or closing of a Deposit Account
and will amend Schedule 8.5 to reflect same.





	 	8.6.	 	General Provisions.





          8.6.1. Location of Collateral. All tangible items of Collateral, other than Vessels and
Inventory in transit or otherwise in the Ordinary Course of Business, shall at all times be kept by
Borrowers at the business locations set forth in Schedule 8.6.1, except that Borrowers may (a) make
sales or other dispositions of Collateral in accordance with Section 10.2.6; and (b) move
Collateral to another location in the United States, as long as Obligor gives written notice to
Agent on or before the next Quarterly Update Date following such move.




          8.6.2. Insurance of Collateral; Condemnation Proceeds.




          (a) Each Borrower shall maintain insurance with respect to the Collateral, covering casualty,
hazard, public liability, theft, malicious mischief, flood and other risks, in amounts, with
endorsements and with insurers (in the case of insurance on the Property, with a Best Rating of at
least A7, unless otherwise approved by Agent and Security Trustee) satisfactory to Agent and
Security Trustee. All proceeds under each policy shall be payable to Agent or Security Trustee, as
its interests may appear. From time to time upon request, Borrowers shall deliver to Agent and
Security Trustee the originals or certified copies of their insurance policies and updated flood
plain searches. Unless Agent shall agree otherwise, each policy shall include reasonably
satisfactory endorsements (i) showing Agent, in the case of property insurance, as sole loss payee
or additional insured, as appropriate; or, in the case of crime insurance, as joint loss payee (ii)
requiring 10 days prior written notice to Agent in the event of cancellation of the policy for any
reason whatsoever; and (iii) specifying, in the case of non-marine property insurance, that the
interests of Agent shall not be impaired or invalidated by any act or neglect of any Borrower or
the owner of the Property, nor by the occupation of the premises for purposes more hazardous than
are permitted by the policy. If any Borrower fails to provide and pay for any insurance, Agent may,
at its option, but shall not be required to, procure the insurance and charge Borrowers therefor.
While no Event of Default exists, Borrowers may settle, adjust or compromise any insurance claim,
as long as the proceeds are delivered to Agent. If an Event of Default exists, only Agent shall be
authorized to settle, adjust and compromise such claims. The Eligible Vessels shall be insured in
accordance with the Ship Mortgages. In the event of a conflict between the provisions of this
Section 8.6.2 and the Ship Mortgages, compliance with the Ship Mortgage provisions shall be deemed
compliance hereunder.




          (b) Any proceeds of insurance (other than proceeds from workers’ compensation or D&O
insurance) and any awards arising from condemnation of any Collateral in excess of $1,000,000 shall
be paid to Agent. Any such proceeds or awards that relate to Inventory shall be applied to payment
of the Loans, and then to any other Obligations outstanding. Subject to clause (c) below, any
proceeds or awards that relate to Vessels, Equipment or Real Estate shall be applied first to Loans
and then to other Obligations.




          (c) If requested by Borrowers in writing within 15 days after Agent’s receipt of any insurance
proceeds or condemnation awards relating to any loss or destruction of Vessels, Equipment or Real
Estate, Borrowers may use such proceeds or awards to repair or replace such Vessels, Equipment or
Real Estate (and until so used, the proceeds shall be held by Agent or Security Trustee as Cash
Collateral) as long as (i) no Default or Event of Default exists; (ii) such repair or replacement
is promptly undertaken and concluded, in accordance with plans reasonably satisfactory to Agent and
Security Trustee; (iii) replacement buildings are constructed on the sites of the original
casualties and are of utility and value comparable to the destroyed buildings; (iv) the repaired or
replaced Property is free of Liens, other than Permitted Liens that are not Purchase Money Liens;
(v) Borrowers comply with disbursement procedures






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for such repair or replacement as Agent or Security Trustee may reasonably require; and (vi) the
aggregate amount of such proceeds or awards from any single casualty or condemnation does not
exceed $5,000,000.




          8.6.3. Protection of Collateral. All expenses of protecting, storing, warehousing, insuring,
handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral
(including any sale thereof), and all other payments required to be made by Agent to any Person to
realize upon any Collateral, shall be borne and paid by Borrowers. Agent shall not be liable or
responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto
(except for reasonable care in its custody while Collateral is in Agent’s actual possession), for
any diminution in the value thereof, or for any act or default of any warehouseman, carrier,
forwarding agency or other Person whatsoever, but the same shall be at Borrowers’ sole risk.




          8.6.4. Defense of Title to Collateral. Each Borrower shall at all times defend its title to
Collateral and Agent’s and Security Trustee’s Liens therein against all Persons, claims and demands
whatsoever, except Permitted Liens.




     8.7. Power of Attorney. Each Borrower hereby irrevocably constitutes and appoints
Agent (and all Persons designated by Agent) as such Borrower’s true and lawful attorney (and
agent-in-fact) for the purposes provided in this Section. Agent, or Agent’s designee, may, without
notice and in either its or a Borrower’s name, but at the cost and expense of Borrowers:



          (a) During an Event of Default or Cash Dominion Trigger Period, endorse a Borrower’s name on
any Payment Item or other proceeds of Collateral (including proceeds of insurance) that come into
Agent’s possession or control; and




          (b) During an Event of Default, (i) notify any Account Debtors of the assignment of their
Accounts, demand and enforce payment of Accounts, by legal proceedings or otherwise, and generally
exercise any rights and remedies with respect to Accounts; (ii) settle, adjust, modify, compromise,
discharge or release any Accounts or other Collateral, or any legal proceedings brought to collect
Accounts or Collateral; (iii) sell or assign any Accounts and other Collateral upon such terms, for
such amounts and at such times as Agent deems advisable; (iv) take control, in any manner, of any
proceeds of Collateral; (v) prepare, file and sign a Borrower’s name to a proof of claim or other
document in a bankruptcy of an Account Debtor, or to any notice, assignment or satisfaction of Lien
or similar document; (vi) receive, open and dispose of mail addressed to a Borrower, and notify
postal authorities to change the address for delivery thereof to such address as Agent may
designate; (vii) endorse any Chattel Paper, Document, Instrument, invoice, freight bill, bill of
lading, or similar document or agreement relating to any Accounts, Inventory or other Collateral;
(viii) use a Borrower’s stationery and sign its name to verifications of Accounts and notices to
Account Debtors; (ix) use the information recorded on or contained in any data processing equipment
and computer hardware and software relating to any Collateral; (x) make and adjust claims under
policies of insurance; (xi) take any action as may be necessary or appropriate to obtain payment
under any letter of credit or banker’s acceptance for which a Borrower is a beneficiary; and (xii)
take all other actions as Agent deems appropriate to fulfill any Borrower’s obligations under the
Loan Documents.




SECTION 9. REPRESENTATIONS AND WARRANTIES




     9.1. General Representations and Warranties. To induce Agent, Security Trustee and
Lenders to enter into this Agreement and to make available the Commitments, Loans and Letters of
Credit, each Borrower represents and warrants that:



          9.1.1. Organization and Qualification. Each Obligor is duly organized, validly
existing





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and in good standing under the laws of the jurisdiction of its organization. Each Obligor is duly
qualified, authorized to do business and in good standing as a foreign corporation in each
jurisdiction where failure to be so qualified, authorized or in good standing could not reasonably
be expected to have a Material Adverse Effect.




          9.1.2. Power and Authority. Each Obligor is duly authorized to execute, deliver and perform
such Loan Documents to which such Obligor is a party. The execution, delivery and performance of
the Loan Documents have been duly authorized by all necessary action, and do not (a) require any
consent or approval of any holders of Equity Interests of any Obligor, other than those already
obtained; (b) contravene the Organic Documents of any Obligor; (c) violate or cause a default under
any Applicable Law or Material Contract; or (d) result in or require the imposition of any Lien
(other than Permitted Liens) on any Property of any Obligor, except where, in the case of clauses
(b) and (c), such contraventions, violations or defaults could not reasonably be expected to result
in a Material Adverse Effect.




          9.1.3. Enforceability. Each Loan Document is a legal, valid and binding obligation of each
Obligor party thereto, enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally and equitable principles of general applicability (regardless of whether such
enforceability is considered in a proceeding at law or in equity).




          9.1.4. Capital Structure. Schedule 9.1.4 shows, for each Borrower and Subsidiary, its name,
its jurisdiction of organization, its number of authorized and issued Equity Interests, the holders
of its Equity Interests, and all agreements binding on such holders with respect to such Equity
Interests. Each Borrower has good title to the Equity Interests of its respective Restricted
Subsidiaries, subject only to Agent’s and Security Trustee’s Liens, and all such Equity Interests
are duly issued, fully paid and non-assessable. There are no outstanding options to purchase,
warrants, subscription rights, agreements to issue or sell, convertible interests, phantom rights
or powers of attorney relating to any Equity Interests of any Obligor.




          9.1.5. Corporate Names; Locations. During the five years preceding the Closing Date, except as
shown on Schedule 9.1.5, no Obligor has been known as or used any corporate, fictitious or trade
names, has been the surviving corporation of a merger or combination, or has acquired any
substantial part of the assets of any Person. The chief executive offices and other places of
business of the Obligors are shown on Schedule 8.6.1. During the five years preceding the Closing
Date, no Obligor has had any other office or place of business.




          9.1.6. Title to Properties; Priority of Liens. Each Obligor has good and marketable title to
(or valid leasehold interests in) the Real Estate listed on Schedule 9.1.6, and good title to all
of its personal Property, including all Property reflected in any financial statements delivered to
Agent, Security Trustee or Lenders (other than (a) any such personal Property disposed of in the
Ordinary Course of Business prior to the date hereof which, if material, has been disclosed to
Agent and (b) Real Estate or personal Property subject to a Permitted Asset Disposition or
otherwise permitted to be disposed of after the Closing Date, so long as Agent has received prompt
notice thereof), in each case free of Liens except Permitted Liens and deficiencies and defects in
title that do not and could not reasonably be expected to interfere with the ability to sustain the
Ordinary Course of Business (“Minor Defects”). Each Obligor has paid and discharged all lawful
claims that, if unpaid, could become a Lien on its Properties, other than Permitted Liens and Minor
Defects. All Liens of Agent or Security Trustee in the Collateral (other than Liens in Commercial
Tort Claims, vehicles and other goods subject to a certificate of title (other than Vessels), cash
that is not Proceeds of Collateral and is not held in a Deposit Account or securities account
subject to a control agreement for the benefit of Agent) are duly perfected, first priority Liens,
subject only to Permitted Liens and Minor Defects that are expressly allowed to have priority over
Agent’s and





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Security Trustee’s Liens. Without limiting the generality of the foregoing, (a) each of the
Eligible Vessels has been duly documented under the laws of the United States in the name of such
Obligor as the owner thereof, and such Obligor is not aware of any claim which might impair the
validity of such Obligor’s title to and interest in such Vessel, and, without limiting the
foregoing, no Obligor has granted a preferred ship mortgage against any Vessel since December 4,
2007, other than in favor of (i) the Security Trustee, and (ii) Jefferies Finance LLC, as mortgage
trustee, which preferred ship mortgage will be released and satisfied on or about the Closing Date,
(b) each Obligor is in material compliance with all obligations under all material leases to which
it is a party and all such leases are in full force and effect, and each Obligor enjoys peaceful
and undisturbed possession under all such material leases, (c) no Obligor has received any notice
of, nor has any knowledge of, any pending or contemplated condemnation proceeding materially and
adversely affecting the Real Estate or Vessels or any sale or disposition thereof in lieu of
condemnation which is material to the business of the Obligors, and (d) none of the Obligors is
obligated under any right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Real Estate or Vessels or any interest therein not otherwise permitted
hereunder.




          9.1.7. Accounts. Agent may rely, in determining which Accounts are Eligible Accounts, on all
written statements and representations made by Borrowers with respect thereto. Borrowers warrant,
with respect to each Account at the time it is shown as an Eligible Account in a Borrowing Base
Certificate, that:




          (a) it is genuine and in all respects what it purports to be, and is not evidenced by a
judgment;




          (b) it arises out of a completed, bona fide sale of goods or rendition of services in the
Ordinary Course of Business, and substantially in accordance with any purchase order, contract or
other document relating thereto;




          (c) it is for a sum certain, maturing as stated in the invoice covering such sale or rendition
of services, a copy of which has been furnished or is available to Agent on request;




          (d) it is not subject to any offset, Lien (other than Agent’s or Security Trustee’s Lien),
deduction, defense, dispute, counterclaim or other adverse condition except pursuant to Vessel
Lease Agreements as disclosed to Agent; and it is absolutely owing by the Account Debtor, without
contingency in any respect (other than any contingency permitted by clause (o) of the definition of
Eligible Accounts);




          (e) no purchase order, agreement, document or, to Borrowers’ knowledge, Applicable Law
restricts assignment of the Account to Agent (regardless of whether, under the UCC, the restriction
is ineffective), and the applicable Borrower is the sole payee or remittance party shown on the
invoice;




          (f) no extension, compromise, settlement, modification, credit, deduction or return has been
authorized with respect to the Account, except those granted in the Ordinary Course of Business or
consent to by Agent;




          (g) it is not excluded as ineligible by virtue of one or more of the excluding criteria (other
than any such criteria which are subject to Agent’s and Co-Collateral Agent’s discretion) set forth
in the definition of Eligible Accounts; and




          (h) to Borrowers’ knowledge, (i) there are no facts or circumstances that are reasonably
likely to impair the enforceability or collectibility of such Account; (ii) the Account Debtor






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had the capacity to contract when the Account arose, continues to meet the applicable Borrower’s
customary credit standards; (iii) except in the case of an Account Debtor whose Accounts qualify as
Eligible Accounts pursuant the proviso of clause (f) of the definition of Eligible Accounts, the
Account debtor is Solvent, is not contemplating or subject to an Insolvency Proceeding, and has not
failed, or suspended or ceased doing business; and (iii) except in the case of an Account Debtor
whose Accounts qualify as Eligible Accounts pursuant the proviso of clause (f) of the definition of
Eligible Accounts, there are no proceedings or actions threatened or pending against any Account
Debtor that could reasonably be expected to have a material adverse effect on the Account Debtor’s
financial condition.




          9.1.8. Financial Statements.




          (a) The consolidated balance sheets, and related statements of income, cash flow and
shareholder’s equity, of Borrowers and Subsidiaries for the Fiscal Year ended December 31, 2008 and
the three Fiscal Quarters ended September 30, 2009 that have been delivered to Agent and Lenders,
and all such financial statements as are hereafter delivered to Agent and Lenders, have been
prepared in accordance with GAAP consistently applied throughout the applicable periods covered,
respectively, thereby and present fairly in all material respects the financial condition and
results of operations and cash flows of Borrowers and the Subsidiaries as of the dates and for the
periods to which they relate (subject to normal year-end audit adjustments and the absence of
footnotes). Except as set forth in such financial statements, there are no material liabilities of
the Borrowers or Subsidiaries of any kind, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set of circumstances
which could reasonably be expected to result in such a liability and which material liabilities are
required by GAAP to be disclosed on such financial statements or in the footnotes thereto.




          (b) The projections delivered from time to time to Agent by the Borrowers have been prepared
in good faith and based upon (i) reasonable assumptions in light of the circumstances at such time
and (ii) accounting principles consistent with the historical audited financial statements
delivered to Agent consistently applied throughout the fiscal years covered thereby.




          (c) Since December 31, 2008, there has been no event, change, circumstance or occurrence that
has had, or could reasonably be expected to result in, a Material Adverse Effect. No financial
statement delivered to Agent or Lenders at any time by such Borrower contains any untrue statement
of a material fact, nor fails to disclose any material fact necessary to make such statement not
materially misleading. The Borrowers and their Restricted Subsidiaries, taken as a whole, are
Solvent.




          9.1.9. Surety Obligations. No Obligor is obligated as surety or indemnitor under any bond or
other contract that assures payment or performance of any obligation of any Person, except as
permitted hereunder.




          9.1.10. Taxes. Each Obligor has filed all material federal, state and local tax returns and
other reports that it is required by law to file, and has paid, or made provision for the payment
of, all material Taxes upon it, its income and its Properties that are due and payable, except to
the extent being Properly Contested. The provision for Taxes on the books of each Borrower and
Subsidiary is adequate for all years not closed by applicable statutes, and for its current Fiscal
Year.




          9.1.11. Brokers. There are no brokerage commissions, finder’s fees or investment banking fees
payable in connection with any transactions contemplated by the Loan Documents.




          9.1.12. Intellectual Property. Each Obligor owns or has the lawful right to use all
Intellectual Property necessary for the conduct of its business, without conflict with any rights
of others. There is no pending or, to any Borrower’s knowledge, threatened Intellectual Property
Claim with respect to any Obligor or any of their Property (including any Intellectual Property)
that could reasonably be





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expected to have a Material Adverse Effect. Except as disclosed on Schedule 9.1.12, no Obligor pays
or owes any compensation to any Person with respect to any Intellectual Property that is not
generally available for purchase or license. All Intellectual Property owned, used or licensed by
any Obligor that is not generally available for purchase or license is shown on Schedule 9.1.12.




          9.1.13. Governmental Approvals. Each Obligor has, is in compliance with, and is in good
standing with respect to, all Governmental Approvals necessary to conduct its business, to own,
lease and operate its Properties except where noncompliance could not reasonably be expected to
have a Material Adverse Effect, and to consummate the transactions hereunder and under the Second
Lien Documents, except for that which could not reasonably be expected to have a Material Adverse
Effect. All necessary import, export or other licenses, permits or certificates for the import or
handling of any goods or other Collateral have been procured and are in effect, except where the
failure to procure or have in effect such licenses, permits or certificates could not reasonably be
expected to have a Material Adverse Effect, and Obligors have complied with all foreign and
domestic laws with respect to the shipment and importation of any goods or Collateral, except where
noncompliance could not reasonably be expected to have a Material Adverse Effect.




          9.1.14. Compliance with Laws. Each Obligor has duly complied, and its Properties and business
operations are in compliance, in all material respects with all Applicable Law, except where
noncompliance could not reasonably be expected to have a Material Adverse Effect. There have been
no citations, notices or orders of material noncompliance issued to any Borrower or Subsidiary
under any Applicable Law. No Inventory has been produced in violation of the FLSA.




          9.1.15. Compliance with Environmental Laws. Except as disclosed on Schedule 9.1.15, no
Obligor’s past or present operations, Real Estate or other Properties are subject to any presently
pending federal, state or local investigation to determine whether any remedial action is needed to
address any environmental pollution, hazardous material or environmental clean-up which could
reasonably be expected to have a Material Adverse Effect. No Obligor has received any Environmental
Notice relating to a condition or occurrence that could reasonably be expected to have a Material
Adverse Effect. No Obligor has any contingent liability with respect to any Environmental Release,
environmental pollution or hazardous material on any Real Estate now or previously owned, leased or
operated by it that could reasonably be expected to have a Material Adverse Effect. The
representations and warranties contained in the Environmental Agreement are true and correct on the
Closing Date.




          9.1.16. Burdensome Contracts. No Obligor is a party or subject to any contract, agreement or
charter restriction that could reasonably be expected to have a Material Adverse Effect. No Obligor
is party or subject to any Restrictive Agreement, except as shown on Schedule 9.1.16, none of which
prohibit the execution or delivery of any Loan Documents by an Obligor nor the performance by an
Obligor of any obligations thereunder.




          9.1.17. Litigation. Except as shown on Schedule 9.1.17, there are no proceedings or
investigations pending or, to any Borrower’s knowledge, threatened against any Obligor, or any of
their businesses, operations or Properties that (a) relate to any Loan Documents or transactions
contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect. No
Obligor is in default with respect to any order, injunction or judgment of any Governmental
Authority, except as could not reasonably be expected to have a Material Adverse Effect.




          9.1.18. No Defaults. No event or circumstance has occurred or exists that constitutes a
Default or Event of Default. No Obligor is in default, and no event or circumstance has occurred or
exists that with the passage of time or giving of notice would constitute a default, under any
Material Contract or in the payment of any Borrowed Money, in each case, except as could not
reasonably be expected to have a Material Adverse Effect. There is no basis upon which any party (other than
an Obligor) could





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terminate a Material Contract prior to its scheduled termination date except as could not
reasonably be expected to have a Material Adverse Effect.




          9.1.19. ERISA. Except as disclosed on Schedule 9.1.19:




          (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code, and other federal and state laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the knowledge of Borrowers, nothing has occurred which would prevent, or cause the loss of, such
qualification. Each Obligor and ERISA Affiliate has made all required contributions to each Plan
subject to Section 412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.




          (b) There are no pending or, to the knowledge of Borrowers, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted in or
could reasonably be expected to have a Material Adverse Effect.




          (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability that could reasonably be expected to result in a Material
Adverse Effect; and (iii) no Obligor or ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.




          (d) With respect to any Foreign Plan, (i) all employer and employee contributions required by
law or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices, except where the failure to make or accrue such contributions
could not reasonably be expected to have a Material Adverse Effect; (ii) the fair market value of
the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded
through insurance, or the book reserve established for any Foreign Plan, together with any accrued
contributions, is sufficient to procure or provide for the accrued benefit obligations with respect
to all current and former participants in such Foreign Plan according to the actuarial assumptions
and valuations most recently used to account for such obligations in accordance with applicable
generally accepted accounting principles, except where the insufficiency could not reasonably be
expected to have a Material Adverse Effect; and (iii) it has been registered as required and has
been maintained in good standing with applicable regulatory authorities, except where failure to
register or maintain in good standing could not reasonably be expected to have a Material Adverse
Effect.




          9.1.20. Trade Relations. There exists no actual or threatened termination, limitation or
modification of any business relationship between any Obligor and any customer or supplier, or any
group of customers or suppliers, who individually or in the aggregate are material to the business
of such Obligor, except as could not reasonably be expected to result in a Material Adverse Effect.
There exists no condition or circumstance that could reasonably be expected to impair the ability
of any Obligor to conduct its business at any time hereafter in substantially the same manner as
conducted on the Closing Date, except as could not reasonably be expected to result in a Material
Adverse Effect.




          9.1.21. Labor Relations. Except as described on Schedule 9.1.21, no Obligor is party to or
bound by any collective bargaining agreement, management agreement or consulting agreement. There
are no material grievances, disputes or controversies with any union or other organization of any
Obligor’s employees, or, to any Borrower’s knowledge, any asserted or threatened strikes, work
stoppages or demands for collective bargaining, except as could not reasonably be expected to
result in a





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Material Adverse Effect.




          9.1.22. Payable Practices. No Obligor has made any change in its historical accounts payable
practices from those in effect on the Closing Date that could reasonably be expected to have a
Material Adverse Effect.




          9.1.23. Not a Regulated Entity. No Obligor is (a) an “investment company” or a “person
directly or indirectly controlled by or acting on behalf of an investment company” within the
meaning of the Investment Company Act of 1940; or (b) subject to regulation under the Federal Power
Act, the Interstate Commerce Act, any public utilities code or any other Applicable Law regarding
its authority to incur Debt.




          9.1.24. Margin Stock. No Obligor is engaged, principally or as one of its important
activities, in the business of extending credit for the purpose of purchasing or carrying any
Margin Stock. No Loan proceeds or Letters of Credit will be used by Borrowers to purchase or carry,
or to reduce or refinance any Debt incurred to purchase or carry, any Margin Stock or for any
related purpose governed by Regulations T, U or X of the Board of Governors.




     9.2. Complete Disclosure. No Loan Document contains any untrue statement of a material
fact, nor fails to disclose any material fact necessary to make the statements contained therein
not materially misleading; provided, that, to the extent any Loan Document was based upon or
constitutes a forecast or projection, the Obligors represent only that they acted in good faith and
utilized reasonable assumptions and due care in the preparation of such Loan Document. There is no
fact or circumstance regarding any of the Obligors that such Obligor knows and has failed to
disclose to Agent or Security Trustee that could reasonably be expected to have a Material Adverse
Effect (provided, that the Obligors shall not be required to disclose (a) general economic or
political conditions or changes therein, (b) financial or security market fluctuations or
conditions, (c) changes in, or events affecting, the industries in which the Obligors operate, (d)
any effect arising out of a change in GAAP or applicable law, (e) actions taken pursuant to any
Loan Document or at the request of Agent, Co-Collateral Agent or any Lender or (f) facts or
circumstances that are not generally available to the public).



     9.3. Amendment of Schedules. Borrowers may amend any of the Schedules referred in this
Agreement (subject to prior notice to Agent) and any representation, warranty, or covenant
contained herein which refers to any such Schedule shall from and after the date of any such
amendment refer to such Schedule as so amended; provided, however, that in no event shall the
amendment of any such Schedule constitute a waiver by Agent and Lenders of any Default or Event of
Default that exists notwithstanding the amendment of such Schedule.



SECTION 10. COVENANTS AND CONTINUING AGREEMENTS




     10.1. Affirmative Covenants. As long as any Commitments or Obligations are
outstanding, each Borrower shall, and shall cause each Restricted Subsidiary to:



          10.1.1. Inspections; Appraisals. Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law are made of all dealings
and transactions in relation to its business and activities. Each Obligor will permit any
representatives designated by Agent or Security Trustee:




          (a) to visit and inspect the financial records and the Collateral of the Obligors at
reasonable times and upon reasonable notice and as often as reasonably requested (provided that
such inspection does not interfere with the scheduled operation of the Vessels), to make extracts
from and copies of such financial records, to evaluate Borrowers’ practices in the computation of
the Borrowing





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Base and the assets included in the Borrowing Base, and pay the reasonable fees and expenses in
connection therewith (except that so long as no Event of Default exists and is continuing,
Borrowers shall only be required to reimburse Agent and Security Trustee for two (2) such visits
and inspections per calendar year; provided, that if any Event of Default has occurred and is
continuing then no such limitation on Borrowers’ reimbursement obligations shall apply);




          (b) to conduct appraisals of the Eligible Vessels and pay the reasonable fees and expenses in
connection therewith (except that so long as no Event of Default exists and is continuing,
Borrowers shall only be required to reimburse Agent and Security Trustee for three (3) Vessel
Appraisals per calendar year (provided, that not more than one (1) such Vessel Appraisal per
calendar year shall be a physical appraisal); provided, that if any Event of Default has occurred
and is continuing then no such limitation on Borrowers’ reimbursement obligations shall apply); and




          (c) to permit any representatives designated by Agent or Security Trustee to discuss the
affairs, finances and condition of any Obligor with the officers thereof and independent
accountants therefor. In addition to and not in limitation of the foregoing, Agent and the Security
Trustee shall have the right at any time or times, in Agent’s or the Security Trustee’s name or in
the name of a nominee of Agent or the Security Trustee, to verify the validity, amount or any other
matter relating to any Collateral, by mail, telephone, facsimile transmission or otherwise. In
connection with any collateral monitoring or review and appraisal. In each case, Agent and Security
Trustee agree to keep any information learned through such inspections strictly confidential.




          10.1.2. Financial and Other Information. Keep adequate records and books of account
with respect to its business activities, in which proper entries are made in accordance with GAAP
reflecting all financial transactions; and furnish to Agent and Lenders:




          (a) as soon as available, and in any event within 105 days (or 90 days if the Obligors or
their direct or indirect parent is required to file with the Securities and Exchange Commission a
quarterly report on Form 10-K for such Fiscal Year) after the close of each Fiscal Year, balance
sheets as of the end of such Fiscal Year and the related statements of income, cash flow and
shareholders’ equity for such Fiscal Year, on consolidated and consolidating bases for Borrowers
and Subsidiaries, which consolidated (but not consolidating) statements shall be audited and
certified (without qualification as to scope, “going concern” or similar items) by Ernst & Young
LLP or another firm of independent certified public accountants of recognized standing selected by
Borrowers and reasonably acceptable to Agent, and shall set forth in comparative form corresponding
figures for the preceding Fiscal Year and other information reasonably acceptable to Agent;




          (b) as soon as available, and in any event within 60 days (or 45 days if the Obligors or their
direct or indirect parent is required to file with the Securities and Exchange Commission a
quarterly report on Form 10-Q for such Fiscal Quarter) after the end of each of the first three
Fiscal Quarters in each Fiscal Year, unaudited balance sheets as of the end of such Fiscal Quarter
and the related statements of income and cash flow for such Fiscal Quarter and for the portion of
the Fiscal Year then elapsed, on consolidated and consolidating bases for Borrowers and
Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year
and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP
and fairly presenting the financial position and results of operations for such Fiscal Quarter and
period, subject to normal year-end adjustments and the absence of footnotes;




          (c) as soon as available, and in any event within 30 days after the end of each month,
unaudited balance sheets as of the end of such month and the related statements of income and cash
flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated and
consolidating bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding
figures for the





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preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in
accordance with GAAP and fairly presenting the financial position and results of operations for
such month and period, subject to normal year-end adjustments and the absence of footnotes;




          (d) concurrently with delivery of financial statements under clauses (a) and (b) above, or
more frequently if requested by Agent while a Default or Event of Default exists, a Compliance
Certificate executed by the chief financial officer of Borrower Agent;




          (e) concurrently with delivery of financial statements under clause (a) above, copies of all
management letters and other material reports submitted to Borrowers by their accountants in
connection with such financial statements;




          (f) not later than 30 days after the end of each Fiscal Year, projections of Borrowers’
consolidated balance sheets, results of operations, cash flow and Availability for the next Fiscal
Year, month by month;




          (g) concurrently with delivery of financial statements under clause (c) above, or more
frequently if requested by Agent while a Default or Event of Default exists, a listing of each
Borrower’s trade payables, specifying the trade creditor and balance due, and a detailed trade
payable aging, all in form reasonably satisfactory to Agent;




          (h) concurrently with delivery of financial statements under clause (c) above, or at such
other times as may be requested by Agent following the occurrence and during the continuance of an
Event of Default, a listing (in form reasonably satisfactory to Agent) of each Borrower’s Eligible
Vessels as of the last day of such calendar month, together with the net book value of each thereof
and specifying whether each such Vessel is a Blue Water Domestic Vessel, Blue Water International
Vessel or Brown Water Vessel;




          (i) promptly after the sending or filing thereof, copies of any proxy statements, financial
statements or reports that any Borrower has made generally available to its public shareholders;
copies of any regular, periodic and special reports or registration statements or prospectuses that
any Borrower files with the Securities and Exchange Commission or any other Governmental Authority,
or any securities exchange; and copies of any press releases or other statements made available by
a Borrower to the public concerning material changes to or developments in the business of such
Borrower;




          (j) promptly after the sending or filing thereof, copies of any annual report to be filed in
connection with each Plan or Foreign Plan; and




          (k) such other reports and information (financial or otherwise) as Agent may reasonably
request from time to time in connection with any Collateral or any Borrower’s, Subsidiary’s or
other Obligor’s financial condition or business.




          10.1.3. Notices. Notify Agent and Lenders in writing, promptly after a Borrower’s obtaining
knowledge thereof, of any of the following that affects an Obligor: (a) the threat or commencement
of any proceeding or investigation, whether or not covered by insurance, that could reasonably be
expected to have a Material Adverse Effect; (b) any pending or threatened labor dispute, strike or
walkout, or the expiration of any material labor contract; (c) any default under or termination of
a Material Contract; (d) the existence of any Default or Event of Default; (e) any judgment in an
amount exceeding $5,000,000; (f) the assertion of any Intellectual Property Claim which could
reasonably be expected to have a Material Adverse Effect; (g) any violation or asserted violation
of any Applicable Law (including ERISA, OSHA, FLSA, or any Environmental Laws)
which could reasonably be expected to have a Material Adverse Effect; (h) any Environmental
Release by an Obligor or on any Property owned,





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leased or occupied by an Obligor, except as could not reasonably be expected to have a Material
Adverse Effect; or receipt of any Environmental Notice relating to a condition or occurrence that
could reasonably be expected to have a Material Adverse Effect; (i) the occurrence of any ERISA
Event; (j) the discharge of or any withdrawal or resignation by Borrowers’ independent accountants;
(k) any casualty or condemnation event that results in a loss (whether or not covered by insurance)
of $5,000,000 or more; or (l) any opening of a new office or place of business.




          10.1.4. Landlord and Storage Agreements. Upon reasonable request, provide Agent with copies of
all existing agreements, and promptly after execution thereof provide Agent with copies of all
future agreements, between an Obligor and any landlord, warehouseman, processor, shipper, bailee or
other Person that owns any premises at which any Collateral may be kept or that otherwise may
possess or handle any Collateral.




          10.1.5. Compliance with Laws. Comply with all Applicable Laws, including ERISA, Environmental
Laws, FLSA, OSHA, Anti-Terrorism Laws, and laws regarding collection and payment of Taxes, and
maintain all Governmental Approvals necessary to the ownership of its Properties or conduct of its
business, unless failure to comply (other than failure to comply with Anti-Terrorism Laws) or
maintain could not reasonably be expected to have a Material Adverse Effect. Without limiting the
generality of the foregoing, if any material Environmental Release occurs at or on any Properties
of any Borrower or Subsidiary, it shall act promptly and diligently to investigate and report to
Agent and all appropriate Governmental Authorities the extent of, and to make appropriate remedial
action to eliminate, such material Environmental Release, whether or not directed to do so by any
Governmental Authority, except as could not reasonably be expected to have a Material Adverse
Effect.




          10.1.6. Taxes. Pay and discharge all material Taxes prior to the date on which they become
delinquent or penalties attach, unless such Taxes are being Properly Contested.




          10.1.7. Insurance. In addition to the insurance required hereunder with respect to
Collateral, maintain insurance with insurers (with a Best Rating of at least A7, unless otherwise
approved by Agent) reasonably satisfactory to Agent, (a) with respect to the Properties and
business of Borrowers and Subsidiaries of such type, in such amounts, and with such coverages and
deductibles as are customary for companies similarly situated; and (b) business interruption
insurance with respect to Terminal operations in an amount not less than $15,000,000, with
deductibles reasonably satisfactory to Agent.




          10.1.8. Licenses. Keep each License affecting any Collateral (including the manufacture,
distribution or disposition of Inventory) or any other material Property of Obligors in full force
and effect, except as could not reasonably be expected to have a Material Adverse Effect.




          10.1.9. Future Subsidiaries. Promptly, and in any event within 10 Business Days, notify Agent
upon any Person becoming a Restricted Subsidiary and, if such Person is not a Foreign Subsidiary,
cause it to guaranty the Obligations, or if it owns Vessels, at the election of Agent and
Co-Collateral Agent, cause it to become a Borrower, in each case a manner reasonably satisfactory
to Agent, and to execute and deliver such documents, instruments and agreements and to take such
other actions as Agent shall require to evidence and perfect a Lien in favor of Agent (for the
benefit of Secured Parties) on all assets of such Person, including delivery of such legal
opinions, in form and substance reasonably satisfactory to Agent, as it shall deem reasonably
appropriate.




          10.1.10. Maritime Opinions and Certificates of Ownership. On or before the date that is sixty
(60) days immediately following the Closing Date, or such later date as may be agreed to by Agent
and Co-Collateral Agent in their sole discretion, deliver an opinion of counsel, dated as of the
date of the Certificates of Ownership referred to below, in favor of the Security Trustee, for the
benefit of Lenders, opining as to the ownership of each of the documented Vessels by the respective
Borrowers, the recording





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of a preferred ship mortgage on each such Vessel granting a first priority preferred ship mortgage
Lien thereon in favor of Security Trustee for the benefit of the Lenders, and that there are no
other Liens of record thereon, and supported by Certificates of Ownership (CG-1330) issued for each
such Vessel by the United States Coast Guard National Vessel Documentation Center, all in form and
substance satisfactory to Agent and Co-Collateral Agent.




     10.2. Negative Covenants. As long as any Commitments or Obligations are outstanding,
each Borrower shall not, and shall cause each Restricted Subsidiary not to:



          10.2.1. Permitted Debt. Create, incur, guarantee or suffer to exist any Debt,
except:




          (a) the Obligations;




          (b) Debt under the Second Lien Documents and subject to the Intercreditor Agreement;




          (c) Subordinated Debt;




          (d) Permitted Purchase Money Debt (including Capital Lease Obligations);




          (e) Borrowed Money (other than the Obligations, Subordinated Debt and Permitted Purchase Money
Debt), but only to the extent outstanding on the Closing Date and not satisfied with proceeds of
the initial Loans;




          (f) Bank Product Debt;




          (g) Debt that is in existence when a Person becomes a Subsidiary or that is secured by an
asset when acquired by a Borrower or Subsidiary, as long as such Debt was not incurred in
contemplation of such Person becoming a Subsidiary or such acquisition, and does not exceed
$10,000,000 in the aggregate at any time;




          (h) Refinancing Debt as long as each Refinancing Condition is satisfied;




          (i) Debt among the Borrowers and their Restricted Subsidiaries;




          (j) Contingent Obligations with respect to any Debt otherwise permitted under this



Section 10.2.1;




          (k) Debt owed to any Person providing workers’ compensation, health, disability or other
employee benefits or property, casualty or liability insurance, pursuant to reimbursement of
indemnification obligations to such Person, in each case in the Ordinary Course of Business;




          (l) obligations under Hedging Agreements and Contingent Obligations in respect thereof;




          (m) Debt in respect of completion guarantees, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the Ordinary Course of Business;




          (n) Debt in respect of sale-leasebacks of Vessels permitted hereunder;




          (o) Debt incurred in connection with Permitted Sale-Leaseback Transactions and Permitted JV
Transactions;





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          (p) Debt in respect of miscellaneous reimbursement obligations relating to loans to employees
in an aggregate amount not to exceed $400,000 at any time, as set forth on Schedule 10.2.1;




          (q) Debt in an aggregate amount not to exceed $4,000,000 in respect of insurance premium
financings in the Ordinary Course of Business; and




          (r) Debt that is not included in any of the preceding clauses of this Section, is not secured
by a Lien, is not Purchase Money Debt or Capital Lease Obligations, and does not exceed $15,000,000
in the aggregate at any time.




          10.2.2. Permitted Liens. Create or suffer to exist any Lien upon any of its Property, except
the following (collectively, “Permitted Liens”):




          (a) Liens in favor of Agent and Security Trustee securing the Obligations;




          (b) Purchase Money Liens securing Permitted Purchase Money Debt;




          (c) Liens for Taxes not yet due or being Properly Contested;




          (d) statutory Liens (other than Liens for Taxes or imposed under ERISA) arising in the
Ordinary Course of Business, but only if (i) payment of the obligations secured thereby is not yet
due or is being Properly Contested, and (ii) such Liens do not materially impair the value or use
of the Property or materially impair operation of the business of the Borrowers and their
Subsidiaries;




          (e) Liens incurred or deposits made in the Ordinary Course of Business to secure the
performance of tenders, bids, leases, contracts (except those relating to Borrowed Money),
statutory obligations and other similar obligations, or arising as a result of progress payments
under government contracts, as long as such Liens are at all times junior to Agent’s and Security
Trustee’s Liens;




          (f) Liens arising in the Ordinary Course of Business that are subject to Lien Waivers;




          (g) Liens arising by virtue of a judgment or judicial order against any Borrower or Subsidiary, or any Property of a Borrower or Subsidiary, as long as such Liens are (i) in existence for less than 20 consecutive days or being Properly Contested, and (ii) at all times junior to Agent’s and Security Trustee’s Liens;




          (h) easements, rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions, servitudes and other agreements of record, and other similar charges or encumbrances on Real Estate, that do not secure any monetary obligation and do not interfere with the Ordinary Course of Business;




          (i) normal and customary rights of setoff upon deposits in favor of depository institutions, and Liens of a collecting bank on Payment Items in the course of collection;




          (j) Liens as set forth in the Second Lien Documents and subject to the Intercreditor Agreement;




          (k) Liens listed on Schedule B of the title insurance policies procured by Borrower in accordance with this Agreement;




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          (l) existing Liens shown on Schedule 10.2.2 provided that such Liens shall secure only those
obligations which they secure on the Closing Date and extensions, renewals, replacements and
refinancings thereof which do not increase the outstanding principal amount thereof as of the date
of such extensions, renewals, replacements and refinancings;




          (m) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrowers or any Restricted Subsidiary, provided that (i) such Lien is not created in contemplation
of or in connection with such acquisition, and (ii) such Lien does not apply to any other property
or assets of the Borrowers or any Restricted Subsidiary;




          (n) Liens for taxes not yet due or which are being contested in compliance with



Section 10.1.6;




          (o) pledges and deposits made in the Ordinary Course of Business in compliance with workmen’s
compensation, unemployment insurance and other social security laws or regulations;




          (p) deposits to secure the performance of bids, trade contracts (other than for Debt), leases
(other than Capital Lease Obligations), statutory obligations, completion guarantees, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred in the Ordinary
Course of Business and Liens securing interests in work-in-process relating to progress payment
contracts for the construction of barges;




          (q) Liens securing appeal bonds or arising out of judgments or awards (other than any judgment
that is described in Section 11.1(g) and constitutes a Default or Event of Default thereunder) in
respect of which the Obligors shall in good faith be prosecuting an appeal or proceedings for
review and in respect of which it shall have secured a subsisting stay of execution
pending such appeal or proceedings for review; provided, that the Obligors shall have set
aside on their books adequate reserves, in accordance with GAAP, with respect to such judgment or
award;




          (r) additional Liens on property or assets securing obligations (other than Debt for borrowed
money) not exceeding $10,000,000 at any time, provided that, to the extent any such Lien applies to
any Collateral, such Lien does not have priority over the Liens created hereby;




          (s) Liens on cash and Cash Equivalents to secure obligations under Hedging Agreements relating
to fuel rate caps and forward fuel purchases not exceeding $3,000,000 at any time;




          (t) leases, charters and subleases granted to third parties (in the Ordinary Course of
Business ) which do not materially interfere with the ordinary conduct of the business of the
Borrowers or their Subsidiaries;




          (u) Liens to secure any permitted extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, of any Debt secured by
Liens referred to in the foregoing clauses (b), (j), (l), (m) and (r); provided, that such Liens do
not extend to any other property or assets and the principal amount of the obligations secured by
such Liens is not greater than the sum of the outstanding principal amount of the refinanced Debt
plus any fees and expenses, including premiums related to such extension, renewal, refinancing or
refunding;




          (v) Liens to secure Debt in respect of sale-leasebacks of Vessels permitted hereunder;




          (w) Liens to secure Permitted Sale-Leaseback Transactions and Permitted JV Transactions;





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          (x) maritime Liens, including all Liens permitted by the Ship Mortgages;




          (y) Liens pursuant to Vessel Lease Agreements; and




          (z) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance
premium financings, to the extent permitted pursuant to Section 10.2.1(q).




          10.2.3. [Reserved]Distributions; Upstream Payments. Declare or make any Distributions, except
Upstream Payments and in connection with Permitted JV Transactions; or create or suffer to exist
any encumbrance or restriction on the ability of a Restricted Subsidiary to make any Upstream
Payment, except for restrictions under the Loan Documents, the Second Lien Documents or Applicable
Law or in effect on the Closing Date as shown on Schedule 9.1.16. Notwithstanding the foregoing,
each Borrower may declare or make any Distribution (a) to the members of such Borrower to the
extent necessary to permit such members (or their direct or indirect members) to discharge their
respective tax liabilities arising directly as members of such Borrower (or as direct or indirect
members of such members), determined based on the assumption that each such member (or direct or
indirect member of such member) is subject to the highest marginal federal, state and local tax
rate in effect for a resident of New York City at the time of such Distribution and subject to the
maximum limitation on the utilization of deductions, losses, allowances and credits, (b) to permit
obligors on the Second Lien Notes to pay interest, principal (at maturity) and other obligations
and liabilities thereon and under the other Second Lien Documents as and when due, (c) to
repurchase from employees Equity Interests in an aggregate amount not to exceed $3,000,000 in any
year, (d) to permit the members of such Borrower to pay franchise and similar taxes, compensation
to employees, general corporate expenses, reporting expenses, equity and debt offering expenses and
the like in an aggregate amount not to exceed $2,000,000 in any year; and (e) other Distributions
in an aggregate amount not to exceed $7,500,000 in any Fiscal Year and $15,000,000 during the term
of this Agreement; provided, that, (i) no Distribution shall be declared or made prior to the
earlier of (A) the first anniversary of the Closing Date and (B) the date of satisfaction of the
conditions set forth in Paragraph 9 of the Arrangement Letter as determined by Agent and
Co-Collateral Agent, (ii) with respect to any Distribution, as of the date of such Distribution, no
Default, Event of Default or Overadvance exists or would result from the making thereof, and (iii)
with respect to any Distribution pursuant to the foregoing clause (e), after giving effect thereto,
on a pro forma basis, (A) the Fixed Charge Coverage Ratio based on the Fiscal Quarter financial
statements most recently delivered pursuant to Section 10.1.2(b) shall be not less than 1.25 to
1.0, (B) Availability at all times during the immediately preceding 30 day period shall be not less
than the greater of (1) $30,000,000 or (2) 30% of the lesser of (x) the Borrowing Base and (y) the
aggregate Commitments, and (C) the Leverage Ratio shall not be greater than the Leverage Ratio set
forth in Section 10.3.1 based on the Fiscal Quarter financial statements most recently delivered
pursuant to Section 10.1.2(b) (without regard to whether a Covenant Trigger Period is then in
effect).




          10.2.5. Restricted Investments. Make any Investment unless (a) it is an Investment in a
Restricted Subsidiary; (b) it is an Investment in an Obligor; (c) it is an Investment in Cash
Equivalents that are subject to Agent’s Lien and control, pursuant to documentation in form and
substance reasonably satisfactory to Agent, other than the deposit account identified pursuant to
item (vii) in the definition of Excluded Property set forth in Section 7.1; (d) it is a loan or
advance permitted under Section 10.2.7, (e) it is an Investment consisting of non-cash
consideration received in connection with a Permitted Asset Disposition, (f) it is an Investment
received in connection with the bankruptcy or reorganization of, or settlement of delinquent
Accounts and disputes with, customers and suppliers, in each case in the Ordinary Course of
Business; (g) it is an Investment (including, without limitation, an Investment in an Unrestricted
Subsidiary, so long as, as of the date of such Investment, no Default, Event of Default or
Overadvance exists or would result from the making thereof), loan or advance which, when aggregated
with all other Investments, loans and advances permitted pursuant to this clause (g) existing at such time, exceeds $10,000,000
(determined as of the date of the Investment and net of any repayments, interest,





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returns, profits, distributions, income and similar amounts actually received in cash in respect of
such Investment); (h) it is an Investment made contemporaneously with the receipt of proceeds of an
Excluded Capital Contribution; (i) it is an Investment made in connection with a Permitted JV
Transaction; or (j) after giving effect thereto, on a pro forma basis, (i) the Fixed Charge
Coverage Ratio shall be not less than 1.1 to 1.0, (ii) Availability at all times during the
immediately preceding 30 day period shall be not less than the greater of (1) $30,000,000 or (2)
25% of the lesser of (x) the Borrowing Base and (y) the aggregate Commitments, and (iii) the
Leverage Ratio shall not be greater than the Leverage Ratio set forth in Section 10.3.1 based on
the Fiscal Quarter financial statements most recently delivered pursuant to Section 10.1.2(b)
(without regard to whether a Covenant Trigger Period is then in effect). For the avoidance of
doubt, any Investment in an Unrestricted Subsidiary shall cease to be outstanding under clause (g)
at such time as such Unrestricted Subsidiary becomes a Restricted Subsidiary.




          10.2.6. Disposition of Assets. Make any Asset Disposition, except a Permitted Asset
Disposition, a disposition of Vessels or Equipment under Section 8.4.2, a Permitted Sale-Leaseback
Transaction or a transfer of Property by a Restricted Subsidiary or Obligor to an Obligor.




          10.2.7. Loans. Make any loans or other advances of money to any Person, except (a) advances to
an officer or employee for salary, travel expenses, commissions and similar items in the Ordinary
Course of Business; (b) prepaid expenses and extensions of trade credit made in the Ordinary Course
of Business; (c) deposits with financial institutions permitted hereunder; and (d) as long as no
Default or Event of Default exists, intercompany loans by an Obligor to another Obligor.




          10.2.8. Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or
mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any
(a) Subordinated Debt, except regularly scheduled payments of principal, interest and fees, but
only to the extent permitted under any subordination agreement relating to such Debt (and a Senior
Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the
date of payment, that all conditions under such agreement have been satisfied); or (b) Borrowed
Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt
as in effect on the Closing Date (or as amended thereafter with the consent of Agent).
Notwithstanding the foregoing, Borrowers may make payments (whether voluntary or mandatory, or a
prepayment, redemption, retirement, defeasance or repurchase) (a) with respect to intercompany
Debt, (b) with respect to any Debt with the proceeds of Refinancing Debt or an Excluded Capital
Contribution, (c) with respect to any Debt (other than with the proceeds of Refinancing Debt or an
Excluded Capital Contribution), in an aggregate principal amount not to exceed $30,000,000 during
any 12 month period, if, (i) as of the date of such payment, no Default, Event of Default or
Overadvance exists or would result from the making thereof, and (ii) after giving effect thereto,
on a pro forma basis, (A) the Fixed Charge Coverage Ratio based on the Fiscal Quarter financial
statements most recently delivered pursuant to Section 10.1.2(b) shall be not less than 1.0 to 1.0,
(B) Availability at all times during the immediately preceding 30 day period shall be not less than
the greater of (1) $30,000,000 or (2) 30% of the lesser of (x) the Borrowing Base and (y) the
aggregate Commitments, and (C) the Leverage Ratio shall not be greater than the Leverage Ratio set
forth in Section 10.3.1 based on the Fiscal Quarter financial statements most recently delivered
pursuant to Section 10.1.2(b) (without regard to whether a Covenant Trigger Period is then in
effect), and (d) regularly scheduled payments of interest and fees, and payment of principal at
maturity, under the Second Lien Documents (subject to the limitations set forth in the
Intercreditor Agreement); except, that, each Borrower shall not, and each Borrower shall cause each
Restricted Subsidiary not to, make any payment of “Excess Cash Flow” under and as such capitalized
term is defined in the Second Lien Documents unless (i) as of the date of such payment, no Default
or Event of Default exists or would exist from the making thereof, (ii) after giving effect
thereto, on a pro forma basis, (A) the Fixed Charge Coverage Ratio based on the Fiscal Quarter
financial statements most recently delivered pursuant to Section 10.1.2(b) shall be not less
than 1.1 to 1.0, (B) Availability at all times during the immediately preceding 30 day period
shall not be less than the greater of $30,000,000 and (y) 30% of the lesser of (1)





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the Borrowing Base and (2) the aggregate Commitments.




          10.2.9. Fundamental Changes. (a) Merge, combine or consolidate with any Person, or liquidate,
wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series
of related transactions, except for (i) any of the foregoing resulting from a transaction otherwise
permitted pursuant to Sections 10.2.5 and 10.2.6 and (ii) mergers or consolidations of a
wholly-owned Subsidiary with another wholly-owned Subsidiary or into a Borrower; (b) change its
name or conduct business under any fictitious name; (c) change its tax, charter or other
organizational identification number; or (d) change its form or state of organization.




          10.2.10. Subsidiaries. Form or acquire any Restricted Subsidiary after the Closing Date,
except in accordance with Sections 10.1.9 and 10.2.5; or permit any existing Restricted Subsidiary
to issue any additional Equity Interests except director’s qualifying shares.




          10.2.11. Organic Documents. Amend, modify or otherwise change any of its Organic Documents as
in effect on the Closing Date, if such amendment, modification or change would adversely affect
Agent or Lenders; provided, that it is understood that any amendment, modification or change that
would cause the Equity Interests of such Borrower or Subsidiary to be treated as other than
“securities” under Article 8 of the UCC shall adversely affect Agent and Lenders; provided,
further, that Borrowers shall provide Agent with prompt notice of any amendment, modification or
change which would not adversely affect Agent or Lenders.




          10.2.12. Tax Consolidation. File or consent to the filing of any consolidated income tax
return with any Person other than the Borrowers and Subsidiaries.




          10.2.13. Accounting Changes. Make any material change in accounting treatment or reporting
practices, except as required by GAAP and in accordance with Section 1.2; or change its Fiscal
Year.




          10.2.14. Restrictive Agreements. Become a party to any Restrictive Agreement, except (a) a
Restrictive Agreement as in effect on the Closing Date and shown on Schedule 9.1.16; (b) a
Restrictive Agreement relating to secured Debt permitted hereunder, if such restrictions apply only
to the collateral for such Debt; (c) the Second Lien Documents; and (d) customary provisions in
leases and other contracts restricting assignment thereof.




          10.2.15. Hedging Agreements. Enter into any Hedging Agreement for speculative purposes.




          10.2.16. Conduct of Business. Engage in any business, other than its business as conducted on
the Closing Date and any activities incidental thereto and reasonable extensions thereof.




          10.2.17. Affiliate Transactions. Enter into or be party to any transaction with an Affiliate,
except (a) transactions contemplated by the Loan Documents and the Second Lien Documents; (b)
payment of reasonable compensation to officers and employees for services actually rendered, and
loans and advances permitted by Section 10.2.7; (c) payment of customary directors’ fees and
indemnities; (d) transactions solely among Obligors; (e) transactions with Affiliates that were
consummated prior to the Closing Date, as shown on Schedule 10.2.17; (f) transactions with
Affiliates upon fair and reasonable terms pursuant to business relationships fully disclosed to
Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a
non-Affiliate (provided, that Borrowers shall disclose the terms of each such transaction upon
Agent’s request); (g) payment of management fees in an amount not to exceed $1,500,000 in any
Fiscal Year (the “Permitted Fee Amount”) plus any portion of the Permitted Fee Amount that accrued
in a prior Fiscal Year or Fiscal





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Years but has not been paid; (h) Permitted Sale-Leaseback Transactions; and (i) transactions
with a Person formed as the result of a Permitted JV Transaction; provided, that the Board of
Directors of the applicable Obligor has determined in good faith that the prices and terms and
conditions of each such transaction with such Person are not less favorable to the applicable
Obligor than could be obtained on an arm’s-length basis from unrelated third parties. For the
avoidance of doubt, this Section 10.2.17 shall not apply to any payments made by an Obligor with
respect to Second Lien Notes held by any Affiliate of such Obligor.




          10.2.18. Plans. Become party to any Multiemployer Plan or Foreign Plan, other than any in
existence on the Closing Date.




          10.2.19. Amendments to Subordinated Debt or Second Lien Notes Documents; or Existing Vessel
Lease Agreements. Amend, supplement or otherwise modify: (a) any document, instrument or agreement
relating to any Subordinated Debt, if such modification (i) increases the principal balance of such
Debt, or increases any required payment of principal or interest; (ii) accelerates the date on
which any installment of principal or any interest is due, or adds any additional redemption, put
or prepayment provisions; (iii) shortens the final maturity date or otherwise accelerates
amortization; (iv) increases the interest rate; (v) increases or adds any fees or charges; (vi)
modifies any covenant in a manner or adds any representation, covenant or default that is more
onerous or restrictive in any material respect for any Borrower or Subsidiary, or that is otherwise
materially adverse to any Borrower, any Subsidiary or Lenders; or (vii) results in the Obligations
not being fully benefited by the subordination provisions thereof; or (b) any of the Second Lien
Documents, except to the extent permitted by the provisions of the Intercreditor Agreement; or (c)
any of the Existing Vessel Lease Agreements, the effect of which amendment, supplement or other
modification is to expand, increase or otherwise broaden any security interest or Lien granted
thereunder.




     10.3. Financial Covenants. As long as any Commitments or Obligations are outstanding,
Borrowers shall, during each Covenant Trigger Period:



          10.3.1. Leverage Ratio. Maintain a Leverage Ratio (measured as of the end of the Fiscal
Quarter ended immediately prior to the commencement of such Covenant Trigger Period and as of the
end of each Fiscal Quarter ending during such Covenant Trigger Period) not greater than the
following:




	 	 	 
	Fiscal Quarter End	 	Ratio
	December 31, 2009

	 	5.20 to 1.0
	March 31, 2010

	 	5.20 to 1.0
	June 30, 2010

	 	5.20 to 1.0
	September 30, 2010

	 	5.20 to 1.0
	December 31, 2010

	 	5.20 to 1.0
	March 31, 2011

	 	5.00 to 1.0
	June 30, 2011

	 	5.00 to 1.0
	September 30, 2011

	 	5.00 to 1.0
	December 31, 2011

	 	5.00 to 1.0
	March 31, 2012

	 	4.85 to 1.0
	June 30, 2012

	 	4.85 to 1.0
	September 30, 2012

	 	4.85 to 1.0
	December 31, 2012

	 	4.85 to 1.0
	March 31, 2013

	 	4.75 to 1.0
	June 30, 2013

	 	4.75 to 1.0
	September 30, 2013

	 	4.75 to 1.0
	December 31, 2013

	 	4.75 to 1.0






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          10.3.2. Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio for each period of
four Fiscal Quarters (measured as of the end of the Fiscal Quarter ended immediately prior to the
commencement of such Covenant Trigger Period and as of the end of each Fiscal Quarter ending during
such Covenant Trigger Period) of at least 1.1 to 1.0.




SECTION 11. EVENTS OF DEFAULT; REMEDIES ON DEFAULT




     11.1. Events of Default. Each of the following shall be an “Event of Default”
hereunder, if the same shall occur for any reason whatsoever, whether voluntary or involuntary, by
operation of law or otherwise:



          (a) A Borrower fails to pay any Obligations when due (whether at stated maturity, on demand,
upon acceleration or otherwise);




          (b) Any representation, warranty or other written statement of an Obligor made in connection
with any Loan Documents or transactions contemplated thereby is incorrect or misleading in any
material respect when given;




          (c) A Borrower breaches or fails to perform any covenant contained in Section 8.1, 10.1.1,
10.1.2, 10.1.3, 10.2 or 10.3;




          (d) An Obligor breaches or fails to perform any other covenant contained in any Loan
Documents, and such breach or failure is not cured within 30 days after a Senior Officer of such
Obligor has knowledge thereof or receives notice thereof from Agent, whichever is sooner;
provided, however, that such notice and opportunity to cure shall not apply if the
breach or failure to perform is not capable of being cured within such period or is a willful
breach by an Obligor;




          (e) A Guarantor repudiates, revokes or attempts to revoke its Guaranty; an Obligor denies or
contests the validity or enforceability of any Loan Documents or Obligations, or the perfection or
priority of any Lien granted to Agent; or any Loan Document ceases to be in full force or effect
for any reason (other than a waiver or release by Agent and Lenders);




          (f) Any breach or default of an Obligor occurs under any document, instrument or agreement to
which it is a party or by which it or any of its Properties is bound, relating to any Debt (other
than the Obligations) in excess of $5,000,000, if the maturity of or any payment with respect to
such Debt may be accelerated or demanded due to such breach prior to its stated maturity;




          (g) Any judgment or order for the payment of money is entered against an Obligor in an amount
that exceeds, individually or cumulatively with all unsatisfied judgments or orders against all
Obligors, $5,000,000 (net of any insurance coverage provided by a carrier not disputing coverage),
and any such judgment or order shall not have been satisfied, vacated, discharged, or stayed or
bonded pending appeal within 60 days after the entry thereof;




          (h) A loss, theft, damage or destruction occurs with respect to any Collateral if the amount
not covered by insurance exceeds $20,000,000;




          (i) Either (A) an Obligor is enjoined, restrained or in any way prevented by any Governmental
Authority from conducting any material part of its business, which injunction, restraint or
prevention would reasonably be expected to have a Material Adverse Effect; (B) an Obligor suffers
the loss, revocation or termination of any material license, permit, lease or agreement necessary
to its






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business, which loss, revocation or termination would reasonably be expected to have a Material
Adverse Effect; or (C) any material Collateral or Property of an Obligor is taken or impaired
through condemnation, which taking or impairment would reasonably be expected to have a Material
Adverse Effect, and in the case of any such event described in clauses (A), (B) and (C) such
condition is not cured within 30 days after a Senior Officer of such Obligor has knowledge thereof
or receives notice thereof from Agent;




          (j) An Insolvency Proceeding is commenced by a Material Obligor; a Material Obligor makes an
offer of settlement, extension or composition to its unsecured creditors generally; a trustee is
appointed to take possession of any substantial portion of the Property of, or to operate any of
the business of, a Material Obligor; or an Insolvency Proceeding is commenced against a Material
Obligor and the Material Obligor consents to institution of the proceeding, the petition commencing
the proceeding is not timely controverted by the Material Obligor, the petition is not dismissed
within 45 days after filing, or an order for relief is entered in the proceeding;




          (k) (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has
resulted or could reasonably be expected to result in liability of an Obligor to a Pension Plan,
Multiemployer Plan or PBGC, or that constitutes grounds for appointment of a trustee for or
termination by the PBGC of any Pension Plan or Multiemployer Plan; (ii) an Obligor or ERISA
Affiliate fails to pay when due any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan; or (iii) any event similar to the foregoing
occurs or exists with respect to a Foreign Plan, in any such case of (i), (ii), or (iii), that has
or reasonably could be expected to have a Material Adverse Effect; or




          (l) A Change of Control occurs.




     11.2. Remedies upon Default. If an Event of Default described in Section 11.1(j)
occurs with respect to any Borrower, then to the extent permitted by Applicable Law, all
Obligations shall become automatically due and payable and all Commitments shall terminate, without
any action by Agent or notice of any kind. In addition, or if any other Event of Default exists,
Agent may in its discretion (and shall upon written direction of Required Lenders) do any one or
more of the following from time to time:



          (a) declare any Obligations (other than Bank Product Debt) immediately due and payable,
whereupon they shall be due and payable without diligence, presentment, demand, protest or notice
of any kind, all of which are hereby waived by Borrowers to the fullest extent permitted by law;




          (b) terminate, reduce or condition any Commitment, or make any adjustment to the Borrowing
Base;




          (c) require Obligors to (i) provide for Letter of Credit Collateralization, and (ii) provide
for Bank Product Collateralization, and (iii) Cash Collateralize all Debt and all other Obligations
that are contingent or not yet due and payable, and, if Obligors fail promptly to deposit such Cash
Collateral, Agent may (and shall upon the direction of Required Lenders) advance the required Cash
Collateral as Loans (whether or not an Overadvance exists or is created thereby, or the conditions
in Section 6 are satisfied); and




          (d) exercise any other rights or remedies afforded under any agreement, by law, at equity or
otherwise, including the rights and remedies of a secured party under the UCC. Such rights and
remedies include the rights to (i) take possession of any Collateral; (ii) require Borrowers to
assemble Collateral, at Borrowers’ expense, and make it available to Agent at a place designated by
Agent; (iii) enter any premises where Collateral is located and store Collateral on such premises
until sold (and if the premises are owned or leased by a Borrower, Borrowers agree not to charge
for such storage); and (iv)





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sell or otherwise dispose of any Collateral in its then condition, or after any further
manufacturing or processing thereof, at public or private sale, with such notice as may be required
by Applicable Law, in lots or in bulk, at such locations, all as Agent, in its discretion, deems
advisable. Each Borrower agrees that 10 days notice of any proposed sale or other disposition of
Collateral by Agent shall be reasonable. Agent shall have the right to conduct such sales on any
Obligor’s premises, without charge, and such sales may be adjourned from time to time in accordance
with Applicable Law. Agent shall have the right to sell, lease or otherwise dispose of any
Collateral for cash, credit or any combination thereof, and Agent may purchase any Collateral at
public or, if permitted by law, private sale and, in lieu of actual payment of the purchase price,
may set off the amount of such price against the Obligations.




     11.3. License. Agent is hereby granted an irrevocable, non-exclusive license or other
right to use, license or sub-license (without payment of royalty or other compensation to any
Person) any or all Intellectual Property of Borrowers, computer hardware and software, trade
secrets, brochures, customer lists, promotional and advertising materials, labels, packaging
materials and other Property, in advertising for sale, marketing, selling, collecting, completing
manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral.
Each Borrower’s rights and interests under Intellectual Property shall inure to Agent’s benefit.



     11.4. Setoff. At any time during an Event of Default, Agent, Issuing Banks, Lenders,
and any of their Affiliates are authorized, to the fullest extent permitted by Applicable Law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever currency) at any time
owing by Agent, such Issuing Banks, such Lender or such Affiliate to or for the credit or the
account of an Obligor against any Obligations, irrespective of whether or not Agent, such Issuing
Banks, such Lender or such Affiliate shall have made any demand under this Agreement or any other
Loan Document and although such Obligations may be contingent or unmatured or are owed to a branch
or office of Agent, such Issuing Banks, such Lender or such Affiliate different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of Agent, each Issuing
Bank, each Lender and each such Affiliate under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Person may have.



     11.5. Remedies Cumulative; No Waiver.



          11.5.1. Cumulative Rights. All covenants, conditions, provisions, warranties, guaranties,
indemnities and other undertakings of Borrowers contained in the Loan Documents are cumulative and
not in derogation or substitution of each other. In particular, the rights and remedies of Agent
and Lenders are cumulative, may be exercised at any time and from time to time, concurrently or in
any order, and shall not be exclusive of any other rights or remedies that Agent and Lenders may
have, whether under any agreement, by law, at equity or otherwise.




          11.5.2. Waivers. The failure or delay of Agent or any Lender to require strict performance by
Borrowers with any terms of the Loan Documents, or to exercise any rights or remedies with respect
to Collateral or otherwise, shall not operate as a waiver thereof nor as establishment of a course
of dealing. All rights and remedies shall continue in full force and effect until Full Payment of
all Obligations. No modification of any terms of any Loan Documents (including any waiver thereof)
shall be effective, unless such modification is specifically provided in a writing directed to
Borrowers and executed by Agent or the requisite Lenders, and such modification shall be applicable
only to the matter specified. No waiver of any Default or Event of Default shall constitute a
waiver of any other Default or Event of Default that may exist at such time, unless expressly
stated. If Agent or any Lender accepts performance by any Obligor under any Loan Documents in a
manner other than that specified therein, or during any Default or Event of Default, or if Agent or
any Lender shall delay or exercise any right or remedy under any Loan Documents, such acceptance,
delay or exercise shall not operate to waive any Default or Event of Default nor to preclude
exercise of any other right or remedy. It is expressly






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acknowledged by Borrowers that any failure to satisfy a financial covenant on a measurement date
shall not be cured or remedied by satisfaction of such covenant on a subsequent date.




SECTION 12. AGENT AND SECURITY TRUSTEE




     12.1. Appointment, Authority and Duties of Agent and Security Trustee.



          12.1.1. Appointment and Authority. Each Lender appoints and designates (and by entering into
a Bank Product Agreement, each Bank Product Provider shall be deemed to appoint and designate) Bank
of America as Agent hereunder and as Security Trustee under the Ship Mortgages. Agent and Security
Trustee may, and each Lender authorizes (and by entering into a Bank Product Agreement, each Bank
Product Provider shall be deemed to authorize) Agent and Security Trustee to, enter into all Loan
Documents to which Agent or Security Trustee is intended to be a party and accept all Security
Documents, for Agent’s and Security Trustee’s benefit and the Pro Rata benefit of the Secured
Parties. Each Lender agrees that any action taken by Agent, Security Trustee or Required Lenders in
accordance with the terms and provisions of the Loan Documents, and the exercise by Agent, Security
Trustee or Required Lenders of any rights or remedies set forth therein, together with all other
powers reasonably incidental thereto, shall be authorized by and binding upon all Lenders. Without
limiting the generality of the foregoing, Agent and Security Trustee shall have the sole and
exclusive authority to (a) act as the disbursing and collecting agent for Lenders with respect to
all payments and collections arising in connection with the Loan Documents; (b) execute and deliver
as Agent and Security Trustee each Loan Document, including any intercreditor or subordination
agreement, and accept delivery of each Loan Document from any Obligor or other Person; (c) act as
collateral agent for Secured Parties for purposes of perfecting and administering Liens under the
Loan Documents, and for all other purposes stated therein; (d) manage, supervise or otherwise deal
with Collateral; and (e) take any Enforcement Action or otherwise exercise any rights or remedies
with respect to any Collateral under the Loan Documents, Applicable Law or otherwise. The duties of
Agent and Security Trustee and Co-Collateral Agent shall be ministerial and administrative in
nature, and none of Agent, Co-Collateral Agent or Security Trustee shall have a fiduciary
relationship with any Lender, Secured Party, Participant or other Person, by reason of any Loan
Document or any transaction relating thereto. Agent and Co-Collateral Agent alone shall be
authorized to determine whether any Accounts or Inventory constitute Eligible Accounts, Eligible
Vessels or Eligible Fuel Inventory, or whether to impose or release any reserve, which
determinations and judgments, if exercised in good faith, shall exonerate Agent and Co-Collateral
Agent from liability to any Lender or other Person for any error in judgment.




          12.1.2. Duties. Agent, Co-Collateral Agent, and Security Trustee shall not have any duties
except those expressly set forth in the Loan Documents. The conferral upon Agent, Co-Collateral
Agent, Security Trustee of any right shall not imply a duty on Agent’s, Co-Collateral Agent, or
Security Trustee’s part to exercise such right, unless instructed to do so by Required Lenders or
all Lenders, as applicable, in accordance with this Agreement.




          12.1.3. Agent Professionals. Agent, Co-Collateral Agent and Security Trustee may perform
their respective duties through agents and employees. Agent, Co-Collateral Agent and Security
Trustee may consult with and employ Agent Professionals, and shall be entitled to act upon, and
shall be fully protected in any action taken in good faith reliance upon, any advice given by an
Agent Professional. Agent, Co-Collateral Agent and Security Trustee shall not be responsible for
the negligence or misconduct of any agents, employees or Agent Professionals selected by either of
them with reasonable care.




          12.1.4. Instructions of Required Lenders. The rights and remedies conferred upon Agent and
Security Trustee under the Loan Documents may be exercised without the necessity of joinder of any
other party, unless required by Applicable Law. Agent and Security Trustee may request
instructions






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from Required Lenders or all Lenders, as applicable, with respect to any act (including the failure
to act) in connection with any Loan Documents, and may seek assurances to its satisfaction from
Lenders of their indemnification obligations under Section 12.6 against all Claims that could be
incurred by Agent in connection with any act. Agent and Security Trustee shall be entitled to
refrain from any act until it has received such instructions or assurances, and Agent and Security
Trustee shall not incur liability to any Person by reason of so refraining. Instructions of
Required Lenders in accordance with the terms and provisions of this Agreement shall be binding
upon all Lenders, and no Lender shall have any right of action whatsoever against Agent or Security
Trustee as a result of Agent or Security Trustee acting or refraining from acting in accordance
with the instructions of Required Lenders in accordance with the terms and provisions of this
Agreement. Notwithstanding the foregoing, instructions by and consent of all Lenders shall be
required in the circumstances described in Section 14.1.1, and in no event shall Required Lenders,
without the prior written consent of each Lender, direct Agent to accelerate and demand payment of
Loans held by one Lender without accelerating and demanding payment of all other Loans, nor to
terminate the Commitments of one Lender without terminating the Commitments of all Lenders. In no
event shall Agent or Security Trustee be required to take any action that, in its opinion, is
contrary to Applicable Law or any Loan Documents or could subject any Agent Indemnitee to personal
liability.




     12.2. Agreements Regarding Collateral and Field Examination Reports.



          12.2.1. Lien Releases; Care of Collateral. Lenders authorize Agent and Security
Trustee to release any Lien with respect to any Collateral (a) upon Full Payment of the
Obligations; (b) that is the subject of an Asset Disposition which Borrowers certify in writing to
Agent and Security Trustee is a Permitted Asset Disposition or a Lien which Borrowers certify is a
Permitted Lien entitled to priority over Agent’s or Security Trustee’s Liens (and Agent and
Security Trustee may rely conclusively on any such certificate without further inquiry); (c) that
does not constitute a material part of the Collateral; or (d) with the written consent of all
Lenders. Agent and Security Trustee shall have no obligation whatsoever to any Lenders to assure
that any Collateral exists or is owned by a Borrower, or is cared for, protected, insured or
encumbered, nor to assure that Agent’s or Security Trustee’s Liens have been properly created,
perfected or enforced, or are entitled to any particular priority, nor to exercise any duty of care
with respect to any Collateral.




          12.2.2. Possession of Collateral. Agent, Security Trustee and Lenders appoint each
other Lender as agent (for the benefit of Secured Parties) for the purpose of perfecting Liens in
any Collateral held by such Lender, to the extent such Liens are perfected by possession. If any
Lender obtains possession of any Collateral, it shall notify Agent thereof and, promptly upon
Agent’s or Security Trustee’s request, deliver such Collateral to Agent or Security Trustee or
otherwise deal with it in accordance with Agent’s or Security Trustee’s instructions.




          12.2.3. Reports. Agent and Security Trustee shall promptly, upon receipt thereof,
forward to each Lender copies of the results of any field audit, examination, appraisal or Vessel
Appraisal prepared by or on behalf of Agent or Security Trustee with respect to any Obligor or
Collateral (“Report”). Each Lender agrees (a) that neither Bank of America nor Agent nor
Security Trustee makes any representation or warranty as to the accuracy or completeness of any
Report, and shall not be liable for any information contained in or omitted from any Report; (b)
that the Reports are not intended to be comprehensive audits or examinations, and that Agent,
Security Trustee or any other Person performing any audit or examination will inspect only specific
information regarding Obligations or the Collateral and will rely significantly upon Borrowers’
books and records as well as upon representations of Borrowers’ officers and employees; and (c) to
keep all Reports confidential and strictly for such Lender’s internal use, and not to distribute
any Report (or the contents thereof) to any Person (except to such Lender’s Participants, attorneys
and accountants) or use any Report in any manner other than






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administration of the Loans and other Obligations. Each Lender agrees to indemnify and hold
harmless Agent, Security Trustee and any other Person preparing a Report from any action such
Lender may take as a result of or any conclusion it may draw from any Report, as well as any Claims
arising in connection with any third parties that obtain any part or contents of a Report through
such Lender.




     12.3. Reliance By Agent and Security Trustee. Agent, Co-Collateral Agent and Security
Trustee shall be entitled to rely, and shall be fully protected in relying, upon any certification,
notice or other communication (including those by telephone, telex, telegram, telecopy or e-mail)
believed by it to be genuine and correct and to have been signed, sent or made by the proper
Person, and upon the advice and statements of Agent Professionals.



     12.4. Action Upon Default. Agent, Co-Collateral Agent and Security Trustee shall not
be deemed to have knowledge of any Default or Event of Default unless it has received written
notice from a Lender or Borrower specifying the occurrence and nature thereof. If any Lender
acquires knowledge of a Default or Event of Default, it shall promptly notify Agent, Security
Trustee and the other Lenders thereof in writing. Each Lender agrees that, except as otherwise
provided in any Loan Documents or with the written consent of Agent, Security Trustee and Required
Lenders, it will not take any Enforcement Action, accelerate Obligations under any Loan Documents,
or exercise any right that it might otherwise have under Applicable Law to credit bid at
foreclosure sales, UCC sales or other similar dispositions of Collateral. Notwithstanding the
foregoing, however, a Lender may take action to preserve or enforce its rights against an Obligor
where a deadline or limitation period is applicable that would, absent such action, bar enforcement
of Obligations held by such Lender, including the filing of proofs of claim in an Insolvency
Proceeding.



     12.5. Ratable Sharing. If any Lender shall obtain any payment or reduction of any
Obligation, whether through set-off or otherwise, in excess of its share of such Obligation,
determined on a Pro Rata basis or in accordance with Section 5.6.1, as applicable, such Lender
shall forthwith purchase from Agent, Issuing Bank and the other Lenders such participations in the
affected Obligation as are necessary to cause the purchasing Lender to share the excess payment or
reduction on a Pro Rata basis or in accordance with Section 5.6.1, as applicable. If any of such
payment or reduction is thereafter recovered from the purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but without interest. No
Lender shall set off against any Dominion Account without the prior consent of Agent.



     12.6. Indemnification of Agent Indemnitees. EACH LENDER SHALL INDEMNIFY AND HOLD
HARMLESS AGENT INDEMNITEES, TO THE EXTENT NOT REIMBURSED BY OBLIGORS (BUT WITHOUT LIMITING THE
INDEMNIFICATION OBLIGATIONS OF OBLIGORS UNDER ANY LOAN DOCUMENTS), ON A PRO RATA BASIS, AGAINST ALL
CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY AGENT INDEMNITEE, PROVIDED THE CLAIM RELATES
TO OR ARISES FROM AN AGENT INDEMNITEE ACTING AS OR FOR AGENT (IN ITS CAPACITY AS AGENT), AND
PROVIDED THE CLAIM DOES NOT ARISE DIRECTLY AND SOLELY FROM SUCH AGENT INDEMNITEE’S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. In Agent’s discretion, it may reserve for any such Claims made against an
Agent Indemnitee, and may satisfy any judgment, order or settlement relating thereto, from proceeds
of Collateral prior to making any distribution of Collateral proceeds to Lenders. If Agent is sued
by any receiver, bankruptcy trustee, debtor-in-possession or other Person for any alleged
preference or fraudulent transfer, then any monies paid by Agent in settlement or satisfaction of
such proceeding, together with all interest, costs and expenses (including attorneys’ fees)
incurred in the defense of same, shall be promptly reimbursed to Agent by each Lender to the extent
of its Pro Rata share.



     12.7. Limitation on Responsibilities of Agent and Security Trustee. Agent,
Co-Collateral



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Agent and Security Trustee shall not be liable to Lenders for any action taken or omitted to be
taken under the Loan Documents, except for losses directly and solely caused by Agent’s,
Co-Collateral Agent’s or Security Trustee’s gross negligence or willful misconduct. Agent,
Co-Collateral Agent and Security Trustee do not assume any responsibility for any failure or delay
in performance or any breach by any Obligor or Lender of any obligations under the Loan Documents.
Agent, Co-Collateral Agent and Security Trustee do not make to Lenders any express or implied
warranty, representation or guarantee with respect to any Obligations, Collateral, Loan Documents
or Obligor. No Agent Indemnitee shall be responsible to Lenders for any recitals, statements,
information, representations or warranties contained in any Loan Documents; the execution,
validity, genuineness, effectiveness or enforceability of any Loan Documents; the genuineness,
enforceability, collectibility, value, sufficiency, location or existence of any Collateral, or the
validity, extent, perfection or priority of any Lien therein; the validity, enforceability or
collectibility of any Obligations; or the assets, liabilities, financial condition, results of
operations, business, creditworthiness or legal status of any Obligor or Account Debtor. No Agent
Indemnitee shall have any obligation to any Lender to ascertain or inquire into the existence of
any Default or Event of Default, the observance or performance by any Obligor of any terms of the
Loan Documents, or the satisfaction of any conditions precedent contained in any Loan Documents.




     12.8. Successor Agent and Co-Agents.



          12.8.1. Resignation; Successor Agent. Subject to the appointment and acceptance of a successor
Agent as provided below, Agent may resign at any time by giving at least 30 days written notice
thereof to Lenders and Borrowers (and any such resignation by Agent shall also constitute its
resignation as Security Trustee). Upon receipt of such notice, Required Lenders shall have the
right to appoint a successor Agent (and any such appointment shall also constitute appointment of
the successor Agent as the successor Security Trustee) which shall be (a) a Lender or an Affiliate
of a Lender; or (b) a commercial bank that is organized under the laws of the United States or any
state or district thereof, has a combined capital surplus of at least $200,000,000 and (provided no
Default or Event of Default exists) is reasonably acceptable to Borrowers. If, at the time that
Agent’s resignation is effective, it is acting as an Issuing Bank, such resignation shall also
operate to effectuate its resignation as an Issuing Bank and it shall automatically be relieved of
any further obligation to issue Letters of Credit or to cause the Underlying Issuer to issue
Letters of Credit. If no successor Agent is appointed prior to the effective date of the
resignation of Agent, then Agent may appoint a successor Agent (and successor Security Trustee)
from among Lenders. Upon acceptance by a successor Agent (and successor Security Trustee) of an
appointment to serve as Agent (and Security Trustee) hereunder, such successor Agent (and successor
Security Trustee) shall thereupon succeed to and become vested with all the powers and duties of
the retiring Agent (and retiring Security Trustee) without further act, and the retiring Agent (and
retiring Security Trustee) shall be discharged from its duties and obligations hereunder but shall
continue to have the benefits of the indemnification set forth in Sections 12.6 and 14.2.
Notwithstanding any Agent’s (or Security Trustee’s) resignation, the provisions of this Section 12
shall continue in effect for its benefit with respect to any actions taken or omitted to be taken
by it while Agent (or Security Trustee). Any successor to Bank of America by merger or acquisition
of stock or this loan shall continue to be Agent (and Security Trustee) hereunder without further
act on the part of the parties hereto, unless such successor resigns as provided above.




          12.8.2. Separate Collateral Agent. It is the intent of the parties that there shall be no
violation of any Applicable Law denying or restricting the right of financial institutions to
transact business in any jurisdiction. If Agent believes that it may be limited in the exercise of
any rights or remedies under the Loan Documents due to any Applicable Law, Agent may appoint an
additional Person who is not so limited, as a separate collateral agent or co-collateral agent. If
Agent so appoints a collateral agent or co-collateral agent, each right and remedy intended to be
available to Agent under the Loan Documents shall also be vested in such separate agent. Every
covenant and obligation necessary to the exercise thereof by such agent shall run to and be
enforceable by it as well as Agent. Lenders shall






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execute and deliver such documents as Agent deems appropriate to vest any rights or remedies in
such agent. If any collateral agent or co-collateral agent shall die or dissolve, become incapable
of acting, resign or be removed, then all the rights and remedies of such agent, to the extent
permitted by Applicable Law, shall vest in and be exercised by Agent until appointment of a new
agent.




     12.9. Due Diligence and Non-Reliance. Each Lender acknowledges and agrees that it
has, independently and without reliance upon Agent, Security Trustee, Co-Collateral Agent or any
other Lenders, and based upon such documents, information and analyses as it has deemed
appropriate, made its own credit analysis of each Obligor and its own decision to enter into this
Agreement and to fund Loans and participate in LC Obligations hereunder. Each Lender has made such
inquiries concerning the Loan Documents, the Collateral and each Obligor as such Lender feels
necessary. Each Lender further acknowledges and agrees that the other Lenders, Agent, Security
Trustee and Co-Collateral Agent have made no representations or warranties concerning any Obligor,
any Collateral or the legality, validity, sufficiency or enforceability of any Loan Documents or
Obligations. Each Lender will, independently and without reliance upon the other Lenders, Agent,
Security Trustee or Co-Collateral Agent, and based upon such financial statements, documents and
information as it deems appropriate at the time, continue to make and rely upon its own credit
decisions in making Loans and participating in LC Obligations, and in taking or refraining from any
action under any Loan Documents. Except for notices, reports and other information expressly
requested by a Lender, none of Agent, Security Trustee and Co-Collateral Agent shall have any duty
or responsibility to provide any Lender with any notices, reports or certificates furnished to
Agent, Security Trustee or Co-Collateral Agent by any Obligor or any credit or other information
concerning the affairs, financial condition, business or Properties of any Obligor (or any of its
Affiliates) which may come into possession of Agent, Security Trustee, Co-Collateral Agent or any
of Agent’s, Security Trustee’s or Co-Collateral Agent’s Affiliates.



     12.10. Replacement of Certain Lenders. If a Lender (a) fails to fund its Pro Rata
share of any Loan or LC Obligation hereunder, and such failure is not cured within two Business
Days, (b) defaults in performing any of its obligations under the Loan Documents, or (c) fails to
give its consent to any amendment, waiver or action for which consent of all Lenders was required
and Required Lenders consented, then, in addition to any other rights and remedies that any Person
may have, Agent may, by notice to such Lender within 120 days after such event, require such Lender
to assign all of its rights and obligations under the Loan Documents to Eligible Assignee(s)
specified by Agent, pursuant to appropriate Assignment and Acceptance(s) and within 20 days after
Agent’s notice. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment
and Acceptance if such Lender fails to execute same. Until such time as one or more replacement
Lenders shall have acquired all of the Obligations, the Commitments, and the other rights and
obligations of such Lender hereunder and other then other Loan Documents, such Lender shall remain
obligated to make such Lender’s Pro Rata share of Loans and to purchase a participation in each
Letter of Credit, in an amount equal to its Pro Rata Share of such Letters of Credit. Such Lender
shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it
under the Loan Documents, including all principal, interest, fees, and an assumption of its Pro
Rata share of the Letters of Credit, through the date of assignment (but excluding any prepayment
charge).



     12.11. Remittance of Payments and Collections.



          12.11.1. Remittances Generally. All payments by any Lender to Agent shall be made by the time
and on the day set forth in this Agreement, in immediately available funds. If no time for payment
is specified or if payment is due on demand by Agent and request for payment is made by Agent by
11:00 a.m. on a Business Day, payment shall be made by Lender not later than 2:00 p.m. on such day,
and if request is made after 11:00 a.m., then payment shall be made by 11:00 a.m. on the next
Business Day. Payment by Agent to any Lender shall be made by wire transfer, in the type of funds
received by Agent. Any such payment shall be subject to Agent’s right of offset for any amounts
due from such






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Lender under the Loan Documents.




          12.11.2. Failure to Pay. If any Lender fails to pay any amount when due by it to Agent
pursuant to the terms hereof, such amount shall bear interest from the due date until paid at the
rate determined by Agent as customary in the banking industry for interbank compensation. In no
event shall Borrowers be entitled to receive credit for any interest paid by a Lender to Agent.




          12.11.3. Recovery of Payments. If Agent pays any amount to a Lender in the expectation that a
related payment will be received by Agent from an Obligor and such related payment is not received,
then Agent may recover such amount from each Lender that received it. If Agent determines at any
time that an amount received under any Loan Document must be returned to an Obligor or paid to any
other Person pursuant to Applicable Law or otherwise, then, notwithstanding any other term of any
Loan Document, Agent shall not be required to distribute such amount to any Lender. If any amounts
received and applied by Agent to any Obligations are later required to be returned by Agent
pursuant to Applicable Law, each Lender shall pay to Agent, on demand, such Lender’s Pro Rata share
of the amounts required to be returned.




     12.12. Agent and Security Trustee in its Individual Capacity. As Lenders, Bank of
America and WFF shall have the same rights and remedies under the other Loan Documents as any other
Lender, and the terms “Lenders,” “Required Lenders” or any similar term shall include Bank of
America and WFF in their respective capacities as Lenders. Each of Bank of America, WFF and their
respective Affiliates may accept deposits from, maintain deposits or credit balances for, invest
in, lend money to, provide Bank Products to, issue letters of credit for the account of, act as
trustee under indentures of, serve as financial or other advisor to, and generally engage in any
kind of business with, Obligors and their Affiliates, as if Bank of America or WFF were any other
bank, without any duty to account therefor (including any fees or other consideration received in
connection therewith) to the other Lenders. In their individual capacity, Bank of America, WFF and
their respective Affiliates may receive information regarding Obligors, their Affiliates and their
Account Debtors (including information subject to confidentiality obligations), and each Lender
agrees that Bank of America WFF and their respective Affiliates shall be under no obligation to
provide such information to Lenders, if acquired in such individual capacity and not as Agent,
Security Trustee or Co-Collateral Agent hereunder.



     12.13. Agent Titles. Each Lender, other than Bank of America (as Agent and Security
Trustee) and WFF (as Co-Collateral Agent), that is designated (on the cover page of this Agreement
or otherwise) by Bank of America as an “Agent” or “Arranger” of any type shall not have any right,
power, obligation, liability, responsibility or duty under any Loan Documents other than those
applicable to all Lenders, and in no event shall any Agent, Co-Collateral Agent, Arranger, or
Lender be deemed to have any fiduciary relationship with any Borrower or Lender.



     12.14. No Third Party Beneficiaries. This Section 12 is an agreement solely among
Lenders, Co-Collateral Agent and Agent, and shall survive Full Payment of the Obligations. This
Section 12 does not confer any rights or benefits upon Borrowers or any other Person. As between
Borrowers and Agent, any action that Agent may take under any Loan Documents or with respect to any
Obligations shall be conclusively presumed to have been authorized and directed by Lenders.



SECTION 13. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS




     13.1. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Borrowers, Agent, Lenders, and their respective successors and assigns, except that (a)
no Borrower shall have the right to assign its rights or delegate its obligations under any Loan
Documents; and (b) any assignment by a Lender must be made in compliance with Section 13.3. Agent
may treat the Person which made any Loan as the owner thereof for all purposes until such Person
makes an assignment in




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accordance with Section 13.3. Any authorization or consent of a Lender shall be conclusive
and binding on any subsequent transferee or assignee of such Lender.




     13.2. Participations.



          13.2.1. Permitted Participants; Effect. Any Lender may, in the ordinary course of its
business and in accordance with Applicable Law, at any time sell to a financial institution
(“Participant”) a participating interest in the rights and obligations of such Lender under any
Loan Documents. Despite any sale by a Lender of participating interests to a Participant, such
Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for performance of such obligations, such Lender
shall remain the holder of its Loans and Commitments for all purposes, all amounts payable by
Borrowers shall be determined as if such Lender had not sold such participating interests, and
Borrowers and Agent shall continue to deal solely and directly with such Lender in connection with
the Loan Documents. Each Lender shall be solely responsible for notifying its Participants of any
matters under the Loan Documents, and Agent and the other Lenders shall not have any obligation or
liability to any such Participant. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 5.9 unless Borrowers agree otherwise in writing.




          13.2.2. Voting Rights. Each Lender shall retain the sole right to approve, without the consent
of any Participant, any amendment, waiver or other modification of any Loan Documents other than
that which forgives principal, interest or fees, reduces the stated interest rate or fees payable
with respect to any Loan or Commitment in which such Participant has an interest, postpones the
Commitment Termination Date or any date fixed for any regularly scheduled payment of principal,
interest or fees on such Loan or Commitment, or releases any Borrower, Guarantor or substantial
portion of the Collateral.




          13.2.3. Benefit of Set-Off. Borrowers agree that each Participant shall have a right of
set-off in respect of its participating interest to the same extent as if such interest were owing
directly to a Lender, and each Lender shall also retain the right of set-off with respect to any
participating interests sold by it. By exercising any right of set-off, a Participant agrees to
share with Lenders all amounts received through its set-off, in accordance with Section 12.5 as if
such Participant were a Lender.




     13.3. Assignments.



          13.3.1. Permitted Assignments. A Lender may assign to an Eligible Assignee any of its rights
and obligations under the Loan Documents, as long as (a) each assignment is of a constant, and not
a varying, percentage of the transferor Lender’s rights and obligations under the Loan Documents
and, in the case of a partial assignment, is in a minimum principal amount of $5,000,000 (unless
otherwise agreed by Agent in its discretion) and integral multiples of $1,000,000 in excess of that
amount; (b) except in the case of an assignment in whole of a Lender’s rights and obligations, the
aggregate amount of the Commitments retained by the transferor Lender is at least $5,000,000
(unless otherwise agreed by Agent in its discretion); and (c) the parties to each such assignment
shall execute and deliver to Agent, for its acceptance and recording, an Assignment and Acceptance.
Nothing herein shall limit the right of a Lender to pledge or assign any rights under the Loan
Documents to (i) any Federal Reserve Bank or the United States Treasury as collateral security
pursuant to Regulation A of the Board of Governors and any Operating Circular issued by such
Federal Reserve Bank, or (ii) counterparties to swap agreements relating to any Loans;
provided, however, that any payment by Borrowers to the assigning Lender in respect
of any Obligations assigned as described in this sentence shall satisfy Borrowers’ obligations
hereunder to the extent of such payment, and no such assignment shall release the assigning Lender
from its obligations hereunder.




          13.3.2. Effect; Effective Date. Upon delivery to Agent of an assignment notice in
the







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form of Exhibit D and a processing fee of $3,500 (unless otherwise agreed by Agent in its
discretion), the assignment shall become effective as specified in the notice, if it complies with
this Section 13.3. From such effective date, the Eligible Assignee shall for all purposes be a
Lender under the Loan Documents, and shall have all rights and obligations of a Lender thereunder.
Upon consummation of an assignment, the transferor Lender, Agent and Borrowers shall make
appropriate arrangements for issuance of replacement and/or new Notes, as applicable. The
transferee Lender shall comply with Section 5.10 or Section 5.12, as applicable, and deliver, upon
request, an administrative questionnaire reasonably satisfactory to Agent.




SECTION 14. MISCELLANEOUS




     14.1. Consents, Amendments and Waivers.



          14.1.1. Amendment. No modification of any Loan Document, including any extension or amendment
of a Loan Document or any waiver of a Default or Event of Default, shall be effective without the
prior written agreement of Agent (with the consent of Required Lenders) and each Obligor party to
such Loan Document; provided, however, that




          (a) without the prior written consent of Agent, no modification shall be effective with
respect to any provision in a Loan Document that relates to any rights, duties or discretion of
Agent;




          (b) without the prior written consent of Co-Collateral Agent, no modification shall be
effective with respect to any provision in a Loan Document that relates to any rights, duties or
discretion of Co-Collateral Agent;




          (c) without the prior written consent of the Issuing Bank, no modification shall be effective
with respect to any LC Obligations, Section 2.3, any other provision of this Agreement or the other
Loan Documents pertaining to such Issuing Bank, or any other rights or duties of such Issuing Bank
under this Agreement or the other Loan Documents;




          (d) without the prior written consent of each affected Lender, no modification shall be
effective that would (i) increase the Commitment of such Lender; or (ii) reduce the amount of, or
waive or delay payment of, any principal, interest or fees payable to such Lender;




          (e) Without the prior written consent of Lenders (other than a Defaulting Lender) holding not
less than seventy-five percent (75%) of the Commitments, (i) alter Section 5.3, 6.2, 9.1.7,
10.1.10, 10.2.4, 10.2.5, 10.2.8 or 10.2.17 or (ii) amend the definitions of Fixed Charges,
Permitted Asset Disposition or Permitted JV Transaction; and




          (f) without the prior written consent of all Lenders (except a Defaulting Lender), no
modification shall be effective that would (i) extend the Revolver Termination Date; (ii) alter
Section 5.6, 6.1, 7.1 (except to add Collateral) or 14.1.1; (iii) amend the definitions of
Borrowing Base (and the defined terms used in such definition), Eligible Assignee, Pro Rata or
Required Lenders; (iv) increase any advance rate or increase total Commitments; (vi) release
Collateral with a book value greater than $12,500,000 during any calendar year, except for a
Permitted Asset Disposition or as otherwise contemplated by the Loan Documents; (vii) release any
Obligor from liability for any Obligations, except in connection with a Permitted Asset
Disposition; or (viii) contractually subordinate any of Agent’s Liens; and




          (g) without the consent of the Lenders (other than a Defaulting Lender) party to the
Arrangement Letter, alter any term or provision of the Arrangement Letter.







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          14.1.2. Limitations. The agreement of Borrowers shall not be necessary to the effectiveness
of any modification of a Loan Document that deals solely with the rights and duties of Lenders,
Agent and/or Issuing Banks as among themselves. Only the consent of the parties to any Fee Letter,
the Bank Product Agreement, and the Arrangement Letter shall be required for any modification of
such agreement, and no Bank Product Provider that is party to a Bank Product Agreement shall have
any other right to consent to or participate in any manner in modification of any other Loan
Document. The making of any Loans during the existence of a Default or Event of Default shall not
be deemed to constitute a waiver of such Default or Event of Default, nor to establish a course of
dealing. Any waiver or consent granted by Lenders hereunder shall be effective only if in writing,
and then only in the specific instance and for the specific purpose for which it is given.




          14.1.3. Payment for Consents. No Borrower will, directly or indirectly, pay any remuneration
or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in
its capacity as a Lender hereunder) as consideration for agreement by such Lender with any
modification of any Loan Documents, unless such remuneration or value is concurrently paid, on the
same terms, on a Pro Rata basis to all Lenders providing their consent.




     14.2. Indemnity. EACH BORROWER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNITEES
AGAINST ANY CLAIMS THAT MAY BE INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE, INCLUDING CLAIMS
ARISING FROM THE NEGLIGENCE OF AN INDEMNITEE. In no event shall any party to a Loan Document have
any obligation thereunder to indemnify or hold harmless an Indemnitee with respect to a Claim that
is determined in a final, non-appealable judgment by a court of competent jurisdiction to result
from the gross negligence or willful misconduct of such Indemnitee.



     14.3. Notices and Communications.



          14.3.1. Notice Address. Subject to Section 4.1.4, all notices and other communications
by or to a party hereto shall be in writing and shall be given to any Borrower, at Borrower Agent’s
address shown on the signature pages hereof, and to any other Person at its address shown on the
signature pages hereof (or, in the case of a Person who becomes a Lender after the Closing Date, at
the address shown on its Assignment and Acceptance), or at such other address as a party may
hereafter specify by notice in accordance with this Section 14.3. Each such notice or other
communication shall be effective only (a) if given by facsimile transmission, when transmitted to
the applicable facsimile number, if confirmation of receipt is received; (b) if given by mail,
three Business Days after deposit in the U.S. mail, with first-class postage pre-paid, addressed to
the applicable address; or (c) if given by personal delivery, when duly delivered to the notice
address with receipt acknowledged. Notwithstanding the foregoing, no notice to Agent pursuant to
Section 2.1.4, 2.3, 3.1.2, 4.1.1 or 5.3.3 shall be effective until actually received by the
individual to whose attention at Agent such notice is required to be sent. Any written notice or
other communication that is not sent in conformity with the foregoing provisions shall nevertheless
be effective on the date actually received by the noticed party. Any notice received by Borrower
Agent shall be deemed received by all Borrowers.




          14.3.2. Electronic Communications; Voice Mail. Electronic mail and internet websites
may be used only for routine communications, such as financial statements, Borrowing Base
Certificates and other information required by Section 10.1.2, administrative matters, distribution
of Loan Documents for execution, and matters permitted under Section 4.1.4. Agent, Security Trustee
and Lenders make no assurances as to the privacy and security of electronic communications.
Electronic and voice mail may not be used as effective notice under the Loan Documents.




          14.3.3. Non-Conforming Communications. Agent, Co-Collateral Agent, Security Trustee
and Lenders may rely upon any notices purportedly given by or on behalf of any Borrower even if







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such notices were not made in a manner specified herein, were incomplete or were not confirmed, or
if the terms thereof, as understood by the recipient, varied from a later confirmation. Each
Borrower shall indemnify and hold harmless each Indemnitee from any liabilities, losses, costs and
expenses arising from any telephonic communication purportedly given by or on behalf of a Borrower.




     14.4. Performance of Borrowers’ Obligations. Agent or Security Trustee may, in its
discretion at any time and from time to time, at Borrowers’ expense, pay any amount or do any act
required of a Borrower under any Loan Documents or otherwise lawfully requested by Agent to (a)
enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize
upon any Collateral; or (c) defend or maintain the validity or priority of Agent’s or Security
Trustee’s Liens in any Collateral, including any payment of a judgment, insurance premium,
warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien.
All payments, costs and expenses (including Extraordinary Expenses) of Agent under this Section
shall be reimbursed to Agent by Borrowers, on demand, with interest from the date incurred to the
date of payment thereof at the Default Rate applicable to Base Rate Loans. Any payment made or
action taken by Agent under this Section shall be without prejudice to any right to assert an Event
of Default or to exercise any other rights or remedies under the Loan Documents.



     14.5. Credit Inquiries. Each Borrower hereby authorizes Agent, Security Trustee and
Lenders (but they shall have no obligation) to respond to usual and customary credit inquiries from
third parties concerning any Borrower or Subsidiary.



     14.6. Severability. Wherever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be valid under Applicable Law. If any provision is found to be
invalid under Applicable Law, it shall be ineffective only to the extent of such invalidity and the
remaining provisions of the Loan Documents shall remain in full force and effect.



     14.7. Cumulative Effect; Conflict of Terms. The provisions of the Loan Documents are
cumulative. The parties acknowledge that the Loan Documents may use several limitations, tests or
measurements to regulate similar matters, and they agree that these are cumulative and that each
must be performed as provided. Except as otherwise provided in another Loan Document (by specific
reference to the applicable provision of this Agreement), if any provision contained herein is in
direct conflict with any provision in another Loan Document (other than the Intercreditor
Agreement), the provision herein shall govern and control, and if any provision contained herein is
in direct conflict with any provision in the Intercreditor Agreement, the provision in the
Intercreditor Agreement shall govern and control.



     14.8. Counterparts. Any Loan Document may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement shall become effective when Agent has received counterparts bearing the
signatures of all parties hereto. Delivery of a signature page of any Loan Document by telecopy
shall be effective as delivery of a manually executed counterpart of such agreement.



     14.9. Entire Agreement. Time is of the essence of the Loan Documents. The Loan
Documents constitute the entire contract among the parties relating to the subject matter hereof,
and supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof.



     14.10. Relationship with Lenders. The obligations of each Lender hereunder are
several, and no Lender shall be responsible for the obligations or Commitments of any other Lender.
Amounts payable hereunder to each Lender shall be a separate and independent debt, and each Lender
shall be entitled, to the extent not otherwise restricted hereunder, to protect and enforce its
rights arising out of the Loan Documents. It shall not be necessary for Agent, Co-Collateral Agent,
Security Trustee or any other



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Lender to be joined as an additional party in any proceeding for such purposes. Nothing in this
Agreement and no action of Agent, Co-Collateral Agent, Security Trustee or Lenders pursuant to the
Loan Documents shall be deemed to constitute Agent, Co-Collateral Agent, Security Trustee and
Lenders to be a partnership, association, joint venture or any other kind of entity, nor to
constitute control of any Borrower.




     14.11. No Advisory or Fiduciary Responsibility. In connection with all aspects of
each transaction contemplated by any Loan Document, Borrowers acknowledge and agree that (a)(i)
this credit facility and any related arranging or other services by Agent, Co-Collateral Agent,
Security Trustee, any Lender, any of their Affiliates or any arranger are arm’s-length commercial
transactions between Borrowers and such Person; (ii) Borrowers have consulted their own legal,
accounting, regulatory and tax advisors to the extent they have deemed appropriate; and (iii)
Borrowers are capable of evaluating and understanding, and do understand and accept, the terms,
risks and conditions of the transactions contemplated by the Loan Documents; (b) each of Agent,
Co-Collateral Agent, Security Trustee, Lenders, their Affiliates and any arranger is and has been
acting solely as a principal in connection with this credit facility, is not the financial advisor,
agent or fiduciary for Borrowers, any of their Affiliates or any other Person, and has no
obligation with respect to the transactions contemplated by the Loan Documents except as expressly
set forth therein; and (c) Agent, Co-Collateral Agent, Security Trustee, Lenders, their Affiliates
and any arranger may be engaged in a broad range of transactions that involve interests that differ
from Borrowers and their Affiliates, and have no obligation to disclose any of such interests to
Borrowers or their Affiliates. To the fullest extent permitted by Applicable Law, each Borrower
hereby waives and releases any claims that it may have against Agent, Co-Collateral Agent, Security
Trustee, Lenders, their Affiliates and any arranger with respect to any breach or alleged breach of
agency or fiduciary duty in connection with any aspect of any transaction contemplated by a Loan
Document.



     14.12. Confidentiality. Each of Agent, Security Trustee, Lenders and Issuing Banks
agrees to maintain the confidentiality of all Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners); (c) to the extent required
by Applicable Law or by any subpoena or similar legal process; (d) to any other party hereto; (e)
in connection with the exercise of any remedies, the enforcement of any rights, or any action or
proceeding relating to any Loan Documents; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any Transferee or any actual or prospective
party (or its advisors) to any Bank Product; (g) with the consent of the Borrower; or (h) to the
extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to Agent, Co-Collateral Agent, Security Trustee, any Lender, any
Issuing Bank or any of their Affiliates on a nonconfidential basis from a source other than
Borrowers. Notwithstanding the foregoing, Agent, Security Trustee and Lenders may issue and
disseminate to the public general information describing this credit facility, including the names
and addresses of Borrowers and a general description of Borrowers’ businesses, and may use
Borrowers’ names in advertising and other promotional materials. For purposes of this Section,
“Information” means all information received from an Obligor or Subsidiary relating to it
or its business, other than any information that is available to Agent, Co-Collateral Agent,
Security Trustee, any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by
the Obligor or Subsidiary, provided that, in the case of information received from an
Obligor or Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of Information
pursuant to this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information. Each of Agent, Co-Collateral Agent,
Security Trustee, Lenders and Issuing



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Banks acknowledges that (i) Information may include material non-public information concerning an
Obligor or Subsidiary; (ii) it has developed compliance procedures regarding the use of material
non-public information; and (iii) it will handle such material non-public information in accordance
with Applicable Law, including federal and state securities laws.




     14.13. Certifications Regarding Indentures. Borrowers certify to Agent, Co-Collateral
Agent, Security Trustee and Lenders that neither the execution or performance of the Loan Documents
nor the incurrence of any Obligations by Borrowers violates the Second Lien Notes Indenture.
Borrowers further certify that the Commitments and Obligations constitute the “New Credit Facility”
and “Revolving Credit Obligations” under the Second Lien Notes Indenture. Agent may condition
Borrowings, Letters of Credit and other credit accommodations under the Loan Documents from time to
time upon Agent’s receipt of evidence that the Commitments and Obligations continue to constitute
the “New Credit Facility” and “Revolving Credit Obligations” at such time.



     14.14. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, UNLESS OTHERWISE
SPECIFIED, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO FEDERAL LAWS RELATING TO NATIONAL BANKS).



     14.15. Consent to Forum. EACH BORROWER HEREBY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER NEW YORK, IN ANY
PROCEEDING OR DISPUTE RELATING IN ANY WAY TO ANY LOAN DOCUMENTS, AND AGREES THAT ANY SUCH
PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH BORROWER IRREVOCABLY WAIVES ALL
CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER
JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1. Nothing herein shall limit the right
of Agent or any Lender to bring proceedings against any Obligor in any other court, nor limit the
right of any party to serve process in any other manner permitted by Applicable Law. Nothing in
this Agreement shall be deemed to preclude enforcement by Agent of any judgment or order obtained
in any forum or jurisdiction.



     14.16. Waivers by Borrowers. To the fullest extent permitted by Applicable Law, each
Borrower waives (a) the right to trial by jury (which Agent and each Lender hereby also waives) in
any proceeding or dispute of any kind relating in any way to any Loan Documents, Obligations or
Collateral; (b) presentment, demand, protest, notice of presentment, default, non-payment,
maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts,
documents, instruments, chattel paper and guaranties at any time held by Agent or Co-Collateral on
which a Borrower may in any way be liable, and hereby ratifies anything Agent or Co-Collateral
Agent may do in this regard; (c) notice prior to taking possession or control of any Collateral;
(d) any bond or security that might be required by a court prior to allowing Agent or Co-Collateral
Agent to exercise any rights or remedies; (e) the benefit of all valuation, appraisement and
exemption laws; (f) any claim against Agent, Security Trustee, Co-Collateral Agent or any Lender,
on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as
opposed to direct or actual damages) in any way relating to any Enforcement Action, Obligations,
Loan Documents or transactions relating thereto; and (g) notice of acceptance hereof. Each
Borrower acknowledges that the foregoing waivers are a material inducement to Agent, Co-Collateral
Agent, Security Trustee and Lenders entering into this Agreement and that Agent, Co-Collateral
Agent , Security Trustee and Lenders are relying upon the foregoing in their dealings with
Borrowers. Each Borrower has reviewed the foregoing waivers with its legal counsel and has
knowingly and voluntarily



-90-









 




waived its jury trial and other rights following consultation with legal counsel. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the court.




     14.17. Patriot Act Notice. Agent, Co-Collateral Agent, Security Trustee and Lenders
hereby notify Borrowers that pursuant to the requirements of the Patriot Act, Agent, Security
Trustee and Lenders are required to obtain, verify and record information that identifies each
Borrower, including its legal name, address, tax ID number and other information that will allow
Agent, Co-Collateral Agent, Security Trustee and Lenders to identify it in accordance with the
Patriot Act. Agent, Co-Collateral Agent, Security Trustee and Lenders will also require
information regarding each personal guarantor, if any, and may require information regarding
Borrowers’ management and owners, such as legal name, address, social security number and date of
birth.



     14.18. Bank Product Providers. Each Bank Product Provider shall be deemed a third
party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any
reference in a Loan Document to the parties for whom Agent is acting. Agent hereby agrees to act as
agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the
applicable Bank Product Provider shall be automatically deemed to have appointed Agent as its agent
and to have accepted the benefits of the Loan Documents; it being understood and agreed that the
rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of
such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if
applicable, guarantees) granted to Agent and the right to share in payments and collections out of
the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue
of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that Agent
and Co-Collateral Agent shall have the right, but shall have no obligation, to establish, maintain,
relax, or release reserves in respect of the Bank Product Debt and that if reserves are established
there is no obligation on the part of Agent or Co-Collateral Agent to determine or insure whether
the amount of any such reserve is appropriate or not. Borrowers may obtain Bank Products from any
Bank Product Provider, although Borrowers are not required to do so. Each Borrower acknowledges
and agrees that no Bank Product Provider has committed to provide any Bank Products and that the
providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of
such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any
other Loan Document, no provider or holder of any Bank Product shall have any voting or approval
rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder
of such agreements or products or the Obligations owing thereunder, nor shall the consent of any
such provider or holder be required (other than in their capacities as a Lender to the extent
applicable) for any matter hereunder or under any of the other Loan Documents, including as to any
matter relating to the Collateral or the release of Collateral or Guarantors.



[Remainder of page intentionally left blank; signatures begin on following page]





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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date set
forth above.




	 	 	 	 	 
	 	BORROWERS:



UNITED MARITIME GROUP, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title:   
	 	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn: 

Telecopy: 813 273-0248 

	 
	 
	 	U.S. UNITED BARGE LINE, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title:                                                                  
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn: 

Telecopy: 813 273-0248 

	 
	 
	 	U.S. UNITED OCEAN SERVICES, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title:                                                                   
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn: 

Telecopy: 813 273-0248 

	 
	 
	 	U.S. UNITED BULK TERMINAL, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title:                                                                   
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn:

Telecopy: 813 273-0248 

	 
	 



Loan and Security Agreement



















 








	 	 	 	 	 
	 	U.S. UNITED INLAND SERVICES, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn:

Telecopy: 813 273-0248 

	 
	 
	 	TINA LITRICO, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn:

Telecopy: 813 273-0248 

	 
	 
	 	MARY ANN HUDSON, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn:

Telecopy: 813 273-0248 

	 
	 
	 	SHEILA MCDEVITT, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn:

Telecopy: 813 273-0248 

	 
	 



Loan and Security Agreement





















 








	 	 	 	 	 
	 	MARIE FLOOD, LLC

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address:

601 S. Harbour Island Blvd.

Tampa, Florida 33602

Attn:

Telecopy: 813 273-0248 

	 
	 



Loan and Security Agreement






















 








	 	 	 	 	 
	 	AGENT AND LENDERS:



BANK OF AMERICA, N.A.,

as Agent, Co-Collateral Agent, Security Trustee and a Lender

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address: 300 Galleria Parkway

Suite 800

Atlanta, Georgia 30339

Attn: John Olsen

Telecopy: (404) 607-3277 
	 
	 



Loan and Security Agreement





















 








	 	 	 	 	 
	 	LENDER:





WELLS FARGO FOOTHILL, LLC,

as a Lender, Co-Collateral Agent, Joint Lead Arranger and Book Manager

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address: 1100 Abernathy Road

Suite 1600

Atlanta, GA 30328

Attn:

Telecopy: 


	 
	 



Loan and Security Agreement






















 








	 	 	 	 	 
	 	LENDER:



JEFFERIES FINANCE LLC,

as a Lender, Joint Lead Arranger and Book Manager

 	 
	 
	 	By:  	 	 
	 	 	Title: 
	 
	 	 	Address: 520 Madison Avenue

New York, New York 10022

Attn:

Telecopy: 


	 
	 



Loan and Security Agreement

















 





EXHIBIT A

to

Loan and Security Agreement




REVOLVER NOTE



December         , 2009 $                     New York, New York




     UNITED MARITIME GROUP, LLC, a Florida limited liability company, U.S. UNITED BARGE LINE, LLC,
a Florida limited liability company, U.S. UNITED OCEAN SERVICES, LLC, a Florida limited liability
company, U.S. UNITED BULK TERMINAL, LLC, a Louisiana limited liability company, U.S. UNITED INLAND
SERVICES, LLC, a Delaware limited liability company, TINA LITRICO, LLC, a Delaware limited
liability company, MARY ANN HUDSON, LLC, a Delaware limited liability company, SHEILA MCDEVITT,
LLC, a Delaware limited liability company), and MARIE FLOOD, LLC, a Delaware limited liability
company (collectively, “Borrowers”), for value received, hereby unconditionally promise to pay, on
a joint and several basis, to the order of                      (“Lender”), the principal
sum of                      DOLLARS ($                    ), or such lesser amount as may be advanced by
Lender as Loans and owing as LC Obligations from time to time, together with all accrued and unpaid
interest thereon, pursuant to the terms of the Loan and Security Agreement dated as of December
        , 2009, among Borrowers, Bank of America, N.A., as Agent, Lender, and certain other financial
institutions, as such agreement may be amended, modified, renewed or extended from time to time
(“Loan Agreement”). Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to such terms in the Loan Agreement.



     Principal of and interest on this Revolver Note from time to time outstanding shall be due and
payable as provided in the Loan Agreement. This Revolver Note is issued pursuant to and evidences
Loans and LC Obligations under the Loan Agreement, to which reference is made for a statement of
the rights and obligations of Lender and the duties and obligations of Borrowers. The Loan
Agreement contains provisions for acceleration of the maturity of this Revolver Note upon the
happening of certain stated events, and for the borrowing, prepayment and reborrowing of amounts
upon specified terms and conditions.



     The holder of this Revolver Note is hereby authorized by Borrowers to record on a schedule
annexed to this Revolver Note (or on a supplemental schedule) the amounts owing with respect to
Loans and LC Obligations, and the payment thereof. Failure to make any notation, however, shall not
affect the rights of the holder of this Revolver Note or any obligations of Borrowers hereunder or
under any other Loan Documents.



     Time is of the essence of this Revolver Note. Each Borrower and all endorsers, sureties and
guarantors of this Revolver Note hereby severally waive demand, presentment for payment, protest,
notice of protest, notice of intention to accelerate the maturity of this Revolver Note, diligence
in collecting, the bringing of any suit against any party, and any notice of or defense on account
of any extensions, renewals, partial payments, or changes in any manner of or in this Revolver Note
or in any of its terms, provisions and covenants, or any releases or substitutions of any security,
or any delay, indulgence or other act of any trustee or any holder hereof, whether before or after
maturity. Subject to the terms of the Loan Agreement, Borrowers jointly and severally agree to pay,
and to save the holder of this Revolver Note harmless against, any liability for the payment of all
costs and expenses (including without limitation reasonable attorneys’ fees) if this Revolver Note
is collected by or through an attorney-at-law.



 









 





     In no contingency or event whatsoever shall the amount paid or agreed to be paid to the holder
of this Revolver Note for the use, forbearance or detention of money advanced hereunder exceed the
highest lawful rate permitted under Applicable Law. If any such excess amount is inadvertently
paid by Borrowers or inadvertently received by the holder of this Revolver Note, such excess shall
be returned to Borrowers or credited as a payment of principal, in accordance with the Loan
Agreement. It is the intent hereof that Borrowers not pay or contract to pay, and that the holder
of this Revolver Note not receive or contract to receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may be paid by Borrowers under Applicable Law.



     This Revolver Note shall be governed by the laws of the State of New York, without giving
effect to any conflict of law principles (but giving effect to federal laws relating to national
banks).



     IN WITNESS WHEREOF, this Revolver Note is executed as of the date set forth above.



	 	 	 	 	 
	 	UNITED MARITIME GROUP, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 



	 	 	 	 	 
	 	U.S. UNITED BARGE LINE, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 



	 	 	 	 	 
	 	U.S. UNITED OCEAN SERVICES, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 



	 	 	 	 	 
	 	U.S. UNITED BULK TERMINAL, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	U.S. UNITED INLAND SERVICES, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 



-2-









 






	 	 	 	 	 
	 	TINA LITRICO, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	MARY ANN HUDSON, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	SHEILA MCDEVITT, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 
	 	MARIE FLOOD, LLC

 	 
	 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 



-3-









 







EXHIBIT B




FORM OF BANK PRODUCTS PROVIDER LETTER AGREEMENT




[Letterhead of Specified Bank Products Provider]




[Date]



Bank of America,
N.A., as Agent 300


Galeria Parkway

 Suite 800 
Atlanta,
Georgia 30339 

Attention: John
Olsen 

Fax No.: (404) 607-3277





     Reference is made to the Loan and Security Agreement, dated December        , 2009 (as the same
now exists and is hereafter amended, modified and supplemented, the “Loan Agreement”), among United
Maritime Group, LLC, U.S. United Barge Line, LLC, U.S. United Ocean Services, LLC, U.S. United Bulk
Terminal, LLC, U.S. United Inland Services, LLC, Tina Litrico, LLC, Mary Ann Hudson, LLC, Sheila
McDevitt, LLC and Marie Flood, LLC, (collectively, “Borrowers”), Bank of America, N.A. (“BANA”),
Wells Fargo Foothill, LLC (“WFF”), Jefferies Finance LLC (“Jefferies” and, together with BANA and
WFF, “Initial Lenders”) and the other financial institutions party thereto from time to time as
lenders (collectively, “Lenders”), BANA, in its capacity as administrative agent, co-collateral
agent and security agent for Lenders, Banc of America Securities LLC (“BAS”), WFF and Jefferies, in
their respective capacities as joint lead arrangers and book managers for Lenders (in such
capacities, collectively, “Joint Lead Arrangers and Book Managers”), and WFF, in its capacity as
co-collateral agent for Lenders. Capitalized terms used but not defined in this letter agreement
are used with the meanings ascribed to them in the Loan Agreement.



     Reference is also made to that certain [describe the Bank Product Agreement or Agreements]
(the “Specified Bank Product Agreement [Agreements]”) dated as of [                    ] by and between
[Lender or Affiliate of Lender] (the “Specified Bank Products Provider”) and [identify the Loan
Party].



     1. Appointment of Agent. The Specified Bank Products Provider hereby designates and appoints
Agent, and Agent by its signature below hereby accepts such appointment, as its representative
under the Loan Agreement and the other Loan Documents, and Specified Bank Products Provider and
Agent each agree that the provisions of Sections 12.1, 12.2, 12.3, 12.5, 12.6, 12.7, 12.9, 12.10,
12.11, 12.12, 12.13, and 12.14, including, as applicable, the defined terms referenced therein (but
only to the extent used therein), which govern the relationship, and certain representations,
acknowledgements, appointments, rights, restrictions, and agreements, between the Agent, on the one
hand, and the Lenders or the Lender Group, on the other hand, shall, from and after the date of
this letter agreement also apply to and govern, mutatis mutandis, the relationship between the
Agent, on the one hand, and the Specified Bank Product Provider with respect to the Bank Products
provided pursuant to the Specified Bank Product Agreement[s], on the other hand.



     2. Acknowledgement of Certain Provisions of Credit Agreement. The Specified Bank Products
Provider hereby acknowledges that it has reviewed the provisions of Sections 5.6, 12.2, 12.8 and 14.18
of the Loan Agreement, including, as applicable, the defined terms referenced therein, and
agrees to be bound by the provisions thereof.



 









 





     3. Reporting Requirements. On a monthly basis (not later than the 10th Business Day of each
calendar month) the Specified Bank Products Provider agrees to provide Agent with a written report,
in form and substance satisfactory to Agent, detailing Specified Bank Products Provider’s
reasonable determination of the credit exposure of Borrowers in respect of the Bank Products
provided by Specified Bank Products Provider pursuant to the Specified Bank Products Agreement[s].
If Agent does not receive such written report within the time period provided above, Agent shall be
entitled to assume that the reasonable determination of the credit exposure of Borrowers with
respect to the Bank Products provided pursuant to the Specified Bank Products Agreement[s] is zero.
Specified Bank Products Provider acknowledges and agrees that Agent shall be entitled to rely on
the information in such reports to establish the Bank Product Reserve and agrees that if such
reports are not delivered to Agent within the time period specified above, Agent shall be entitled
to implement a Bank Products Reserve in respect of the Bank Product Debt pursuant to the Specified
Bank Products Agreement[s] equal to zero. By executing below, Borrower consents to the Specified
Bank Products Provider providing any and all such information to Agent.



     4. Bank Product Debt. From and after the delivery of this letter agreement to Agent and the
acknowledgement of this letter agreement by Agent, the obligations and liabilities of Borrowers to
Specified Bank Product Provider in respect of Bank Products evidenced by the Specified Bank Product
Agreement[s] shall constitute Bank Product Debt and Specified Bank Product Provider shall
constitute a Bank Product Provider.



     5. Notices. All notices and other communications provided for hereunder shall be given in the
form and manner provided in Section 14.3 of the Loan Agreement, and, if to Agent, shall be mailed,
sent, or delivered to Agent in accordance with Section 14.3 in the Loan Agreement, if to Borrower
Agent or any other Borrower, shall be mailed, sent, or delivered to Borrower Agent in accordance
with Section 14.3 in the Loan Agreement, and, if to Specified Bank Products Provider, shall be
mailed, sent or delivered to the address set forth below, or, in each case as to any party, at such
other address as shall be designated by such party in a written notice to the other party.



	 	 	 	 	 	 	 	 	 
	 

	 	If to Specified Bank	 	 	 	 	 	 
	 

	 	Products Provider:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Attn:	 	 	 	 
	 

	 	 	 	 	 	 

	 	 
	 

	 	 	 	Fax No.	 	 	 	 
	 

	 	 	 	 	 	 

	 	 






     6. Miscellaneous. This letter agreement is for the benefit of the Agent, the
Specified Bank Products Provider, the Borrowers and each their respective successors and assigns (including any
successor agent pursuant to Section 12.8 of the Loan Agreement). In connection with any transfer or
assignment by Specified Bank Products Provider of any Specified Bank Products Agreement, the
assignees or transferees of Specified Bank Product Provider shall bind themselves in a writing
addressed to the Agent to the terms of this letter agreement. Unless the context of this letter
agreement clearly requires otherwise, references to the plural include the singular, references to
the singular include the plural, the terms “includes” and “including” are not limiting, and the
term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” This letter agreement is a Loan Document. This letter agreement may be executed in any
number of counterparts and by different parties on separate counterparts. Each of such counterparts
shall be deemed to be an original, and all of such counterparts, taken together, shall constitute
but one and the same agreement. Delivery of an



 









 




executed counterpart of this letter by telefacsimile or other means of electronic transmission
shall be equally effective as delivery of a manually executed counterpart.




     7. Governing Law.



          (a) THE VALIDITY OF THIS LETTER AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT
HEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR
RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.



          (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS LETTER
AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS, AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, FEDERAL COURTS, SITTING IN OR WITH JURISDICTION OVER NEW YORK. EACH BORROWER,
SPECIFIED BANK PRODUCTS PROVIDER, AND AGENT WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 7(b).



          (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH BORROWER, SPECIFIED BANK PRODUCTS
PROVIDER, AND AGENT HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS LETTER AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH BORROWER, SPECIFIED BANK PRODUCTS PROVIDER, AND AGENT REPRESENT THAT EACH
HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS LETTER AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



[signature pages to follow]





 











 





	 	 	 	 	 
	 	Sincerely,




[SPECIFIED BANK PRODUCTS PROVIDER]

 	 

	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Acknowledged, accepted, and agreed

as of the date first written above:




                    , a                                         ,

as Borrower Agent




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 







Acknowledged, accepted, and

agreed as of                                         , 20     :




                                                            ,

as Agent




	 	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 







EXHIBIT C

to

Loan and Security Agreement




ASSIGNMENT AND ACCEPTANCE 





     Reference is made to the Loan and Security Agreement dated as of December ___, 2009, as may be
amended, modified, renewed or extended from time to time (“Loan Agreement”), among UNITED
MARITIME GROUP, LLC, a Florida limited liability company, U.S. UNITED BARGE LINE, LLC, a Florida
limited liability company, U.S. UNITED OCEAN SERVICES, LLC, a Florida limited liability company,
U.S. UNITED BULK TERMINAL, LLC, a Louisiana limited liability company,
U.S. UNITED INLAND SERVICES, LLC, a Delaware limited liability company, TINA LITRICO, LLC, a
Delaware limited liability company, MARY ANN HUDSON, LLC, a Delaware limited liability company,
SHEILA MCDEVITT, LLC, a Delaware limited liability company), and MARIE FLOOD, LLC, a Delaware
limited liability company (collectively, “Borrowers”), BANK OF AMERICA, N.A., as Agent,
Lenders, and certain other financial institutions parties to the Loan Agreement from time to time.
Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to
such terms in the Loan Agreement.



                                                                 (“Assignor”)
and   
                                                                          
                         (“Assignee”) agree as follows:



     1. Assignor hereby assigns to Assignee and Assignee hereby purchases and assumes
from Assignor (a) a principal amount of $                     of Assignor’s outstanding Loans and $                     of
Assignor’s participations in LC Obligations and (b) the amount of $                     of Assignor’s
Commitment (which represents ___% of the total Commitments) (the foregoing items being,
collectively, the “Assigned Interest”), together with an interest in the Loan Documents
corresponding to the Assigned Interest. Subject to the applicable sections of the Loan Agreement,
the assignment contemplated by this Assignment and Acceptance shall become effective (the
“Effective Date”) upon delivery to Agent of the Assignment Notice and any processing fees
associated therewith (unless otherwise agreed by Agent in its discretion), provided that such
Assignment Notice is executed by Assignor, Assignee, Agent and Borrower Agent, as applicable. From
and after the Effective Date, Assignee hereby expressly assumes, and undertakes to perform, all of
Assignor’s obligations under the Loan Agreement in respect of the Assigned Interest, and all
principal, interest, fees and other amounts which would otherwise be payable to or for Assignor’s
account in respect of the Assigned Interest shall be payable to or for Assignee’s account, in
accordance with the terms of the Loan Agreement, to the extent such amounts accrue on or after the
Effective Date. Assignee hereby agrees to comply with the terms of all relevant sections of the
Loan Agreement, and deliver, upon request, an administrative questionnaire in a form reasonably
satisfactory to Agent.



     2. Assignor (a) represents that as of the date hereof, prior to giving effect to this
assignment, its Commitment is $                     , and the aggregate outstanding balance of Assignor’s
Loans and participations in LC Obligations is $                    ; (b) makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or representations made in
or in connection with the Loan Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement or any other instrument or document
furnished pursuant thereto, other than that Assignor is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; and (c) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of Borrowers or the performance by Borrowers of their obligations under the
Loan Documents. [Assignor is attaching the Note[s] held by it and requests that Agent exchange such
Note[s] for new Notes payable to Assignee [and Assignor].]



 









 






     3. Assignee (a) represents and warrants that it is legally authorized to enter
into this Assignment and Acceptance; (b) confirms that it has received copies of the Loan Agreement and such
other Loan Documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) agrees that it shall, independently
and without reliance upon Assignor and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents; (d) confirms that it is an Eligible Assignee; (e) appoints and authorizes
Agent to take such action as agent on its behalf and to exercise such powers under the Loan
Agreement as are delegated to Agent by the terms thereof, together with such powers as are
incidental thereto; (f) agrees that it will observe and perform all obligations that are required
to be performed by it as a “Lender” under the Loan Documents; and (g) represents and warrants that
the assignment evidenced hereby will not result in a non-exempt “prohibited transaction” under
Section 406 of ERISA.



     4. This Assignment and Acceptance shall be governed by the laws of the State of New York
without giving effect to any conflict of law principles (but giving effect to federal laws relating
to national banks). If any provision is found to be invalid under Applicable Law, it shall be
ineffective only to the extent of such invalidity and the remaining provisions of this Assignment
and Acceptance shall remain in full force and effect.



     5. Each notice or other communication hereunder shall be in writing, shall be sent by
messenger, by telecopy or facsimile transmission, or by first-class mail, shall be deemed given
when sent and shall be sent as follows:




	 	(a)	 	If to Assignee, to the following address (or to such other address as Assignee
may designate from time to time):






	 	 	 	                                                                                

	 	 	 	                                                                                

	 	 	 	                                                                                








	 	(b)	 	If to Assignor, to the following address (or to such other address as Assignor
may designate from time to time):






	 	 	 	                                                                                

	 	 	 	                                                                                

	 	 	 	                                                                                







     Payments hereunder shall be made by wire transfer of immediately available Dollars as
follows:



     If to Assignee, to the following account (or to such other account as Assignee may designate
from time to time):




	 	 	 	                                                                                


	 	 	 	                                                                                

	 	 	 	ABA No.                                                               
	 	 	 	                                                                                

	 	 	 	Account No.                                                         
	 	 	 	Reference:                                                             





     If to Assignor, to the following account (or to such other account as Assignor may designate
from time to time):



-2-









 






	 	 	 	                                                                                


	 	 	 	                                                                                

	 	 	 	ABA No.                                                               
	 	 	 	                                                                                

	 	 	 	Account No.                                                         
	 	 	 	Reference:                                                             




-3-









 











     IN WITNESS WHEREOF, the undersigned have executed this Assignment and Acceptance as of the
                     day
of         , 20        .



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	(“Assignee”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	 


	 	 
	 

	 	 
	 	Title:
	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	(“Assignor”)	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	 


	 	 
	 

	 	 
	 	Title:
	 	 







-4-











 





EXHIBIT D

to

Loan and Security Agreement




 ASSIGNMENT NOTICE




     Reference is made to (1) the Loan and Security Agreement dated as of December          , 2009, as
may be amended, modified, renewed or extended from time to time (“Loan Agreement”), among
UNITED MARITIME GROUP, LLC, a Florida limited liability company, U.S. UNITED BARGE LINE, LLC, a
Florida limited liability company, U.S. UNITED OCEAN SERVICES, LLC, a Florida limited liability
company, U.S. UNITED BULK TERMINAL, LLC, a Louisiana limited liability company, U.S. UNITED INLAND
SERVICES, LLC, a Delaware limited liability company, TINA LITRICO, LLC, a Delaware limited
liability company, MARY ANN HUDSON, LLC, a Delaware limited liability company, SHEILA MCDEVITT,
LLC, a Delaware limited liability company), and MARIE FLOOD, LLC, a Delaware limited liability
company (collectively, “Borrowers”), BANK OF AMERICA, N.A., as Agent, Lenders, and certain other
financial institutions parties to the Loan Agreement from time to time; and (2) the Assignment and
Acceptance dated as of                     , 20                    
(“Assignment Agreement”), between                     
(“Assignor”) and                      (“Assignee”). Capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to such terms in the Loan Agreement.



     In accordance with the terms and conditions of the Loan Agreement, Assignor hereby notifies
Borrowers and Agent of Assignor’s intent to assign to Assignee, pursuant to the Assignment
Agreement, (a) a principal amount of $                     of Assignor’s outstanding Loans and $                     of
Assignor’s participations in LC Obligations, and (b) the amount of $                     of Assignor’s
Commitment (which represents         % of the total Commitments) (the foregoing items being,
collectively, the “Assigned Interest”), together with an interest in the Loan Documents
corresponding to the Assigned Interest. Subject to the applicable sections of the Loan Agreement,
the assignment contemplated by the Assignment and Acceptance shall become effective (the “Effective
Date”) upon delivery to Agent of this Assignment Notice and upon the payment of any processing fees
associated herewith (unless otherwise agreed by Agent in its discretion), provided this Assignment
Notice is executed by Assignor, Assignee, Agent and Borrower Agent, as applicable. Pursuant to the
Assignment Agreement, Assignee has expressly assumed all of Assignor’s obligations under the Loan
Agreement to the extent of the Assigned Interest, as of the Effective Date.



     For purposes of the Loan Agreement, Agent shall deem Assignor’s Commitment to be reduced by
$                    , and Assignee’s Commitment to be increased by $                    .



     Each notice or other communication hereunder or under the Loan Agreement to be sent to
Assignee shall be in writing, shall be sent by messenger, by telecopy or facsimile transmission, or
by first-class mail, shall be deemed given when sent and shall be sent as follows:



	 	 	 	 	 
	 
	 	 

	 	 
	 
	 	 

	 	 
	 
	 	 

	 	 
	 
	 	 

	 	 






 









 






     This Assignment Notice is being delivered to Borrowers and Agent pursuant to Section 13.3 of
the Loan Agreement. Please acknowledge your acceptance of this Assignment Notice by executing and
returning to each of Assignee and Assignor a copy of this Notice.



     IN WITNESS WHEREOF, this Assignment Notice is executed as of                     .



	 	 	 	 	 
	 
	 	(“Assignee”)
 	 
	 	 	 
	 	By  	
 	 
	 	 	Title: 	 
	 	 	 	 



	 	 	 	 	 
	 	(“Assignor”)


 
	 	By  	 	 
	 	 	Title: 	 
	 	 	 	 


ACKNOWLEDGED AND AGREED, 

AS OF THE DATE
SET FORTH ABOVE:



BORROWER AGENT:*




	 	 	 	 	 
	UNITED MARITIME GROUP, LLC

 	 
	By  	 	 
	 	Title: 	 
	 	 	 	 
	 




 




*    No signature required if Assignee is a Lender, U.S.-based Affiliate of a Lender or Approved Fund,
or if an Event of Default exists.




	 	 	 	 	 
	BANK OF AMERICA, N.A., 
as
Agent

 	 
	By  	 	 
	 	Title: 	 
	 	 	 	 



-2-









 






	 	 	 	 	 



EXHIBIT E

to

Loan and Security Agreement







 









 








EXHIBIT F

to

Loan and Security Agreement







 









 








EXHIBIT G

to

Loan and Security Agreement







 









 








EXHIBIT H

to

Loan and Security Agreement







 









 








SCHEDULE 1.1A

to

Loan and Security Agreement




COMMITMENTS OF LENDERS




	 	 	 	 	 
	Lender	 	Commitment	 
	Bank of America, N.A.
	 	$	45,000,000	 
	Wells Fargo Foothill, LLC
	 	$	45,000,000	 
	Jefferies Finance LLC
	 	$	45,000,000	 






 









 






SCHEDULE 1.1B

to

Loan and Security Agreement




ELIGIBLE VESSELS




	 	 	 	 	 	 	 	 	 
	Blue Water	 	Blue Water	 	 
	Domestic Vessels	 	International Vessels	 	Brown Water Vessels





 









 






SCHEDULE 1.1C

to

Loan and Security Agreement




SPECIFIED VESSELS







 









 








SCHEDULE 1.1D

to

Loan and Security Agreement




TITLE INSURANCE; ASSIGNMENTS OF LEASES, ETC.








 









 








SCHEDULE 1.1E

to

Loan and Security Agreement




PL480 VESSELS





 











 





SCHEDULE 1.1F

to

Loan and Security Agreement




Existing Fuel Hedge 



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Monthly	 	 	 	 	 	 	Mark to Market	 
	Effective	 	Trade Date	 	 	Gallons	 	 	Price	 	 	as of 11/30/09	 
	Jan 1 ’09 - Mar 31 ‘09
	 	 	12/26/2008	 	 	 	400,000	 	 	$	1.2863	 	 	NA
	Apr 1 ’09 - Jun 30 ‘09
	 	 	12/26/2008	 	 	 	400,000	 	 	$	1.3527	 	 	NA
	May 1 ’09 - Sept 30 ‘09
	 	 	12/26/2008	 	 	 	400,000	 	 	$	1.4441	 	 	NA
	Oct 1 ’09 - Dec 31 ‘09
	 	 	12/26/2008	 	 	 	400,000	 	 	$	1.5241	 	 	$	408,044.16	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Full Year 2009
	 	 	 	 	 	 	4,800,000	 	 	$	1.4018	 	 	$	408,044.16	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jan 1 ’10 - Dec 31 ‘10
	 	 	8/27/2009	 	 	 	42,000	 	 	$	2.1200	 	 	$	30,401.86	 
	Jan 1 ’10 - Dec 31 ‘10
	 	 	9/24/2009	 	 	 	42,000	 	 	$	1.9975	 	 	$	91,979.70	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Full Year 2010
	 	 	 	 	 	 	1,008,000	 	 	$	2.0588	 	 	$	122,381.56	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jan 1 ’11 - Dec 31 ‘11
	 	 	8/27/2009	 	 	 	42,000	 	 	$	2.2925	 	 	$	25,190.39	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Full Year 2011
	 	 	 	 	 	 	504,000	 	 	$	2.2925	 	 	$	25,190.39	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Wachovia
	 	 	 	 	 	 	 	 	 	 	 	 	 	$	555,616.11	 





Swaps are for #2 Heating Oil quoted on NYMEX, cash settled monthly






 









 








SCHEDULE 1.1G

to

Loan and Security Agreement




Existing Letter of Credit 






-2-









 








SCHEDULE 8.5

to

Loan and Security Agreement




DEPOSIT ACCOUNTS 




	 	 	 	 	 
	Depository Bank	 	Type of Account	 	Account Number
	 

	 	 
	 	 





 









 






SCHEDULE 8.6.1

to

Loan and Security Agreement




BUSINESS LOCATIONS 





	1.	 	Borrowers currently have the following business locations, and no others:
	 
	 	 	Chief Executive Office:
	 
	 	 	Other Locations:
	 
	2.	 	In the five years preceding the Closing Date, Borrowers have had no office or place of
business located in any county other than as set forth above, except:
	 
	3.	 	Each Subsidiary currently has the following business locations, and no others:



Chief Executive Office:
	 
	 	 	Other Locations:
	 
	4.	 	In the five years preceding the Closing Date, no Subsidiary has had an office or place of
business located in any county other than as set forth above, except:
	 
	5.	 	The following bailees, warehouseman, similar parties and consignees hold inventory of a
Borrower or Subsidiary:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Nature of	 	 	 	 
	Name and Address of Party	 	Relationship	 	Amount of Inventory	 	Owner of Inventory





 









 






SCHEDULE 9.1.4

to

Loan and Security Agreement




NAMES AND CAPITAL STRUCTURE 





	1.	 	The corporate names, jurisdictions of incorporation, and authorized and issued Equity
Interests of each Borrower and Subsidiary are as follows:





      



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Number and Class	 	Number and Class
	Name	 	Jurisdiction	 	of Authorized Shares	 	of Issued Shares





      




	2.	 	The record holders of Equity Interests of each Borrower and Subsidiary are as follows:





      



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name	 	Class of Stock	 	Number of Shares	 	Record Owner





      




	3.	 	All agreements binding on holders of Equity Interests of Borrowers and Subsidiaries with
respect to such interests are as follows:




 









 











SCHEDULE 9.1.5

to

Loan and Security Agreement




FORMER NAMES AND COMPANIES 





	1.	 	Each Borrower’s and Subsidiary’s correct corporate name, as registered with the Secretary of
State of its state of incorporation, is shown on Schedule 9.1.4.
	 
	2.	 	In the conduct of their businesses during five years preceding the Closing Date, Borrowers
and Subsidiaries have used the following names:





      



	 	 	 	 	 
	Entity	 	Fictitious, Trade or Other Name





      




	3.	 	In the five years preceding the Closing Date, no Borrower or Subsidiary has been the
surviving corporation of a merger or combination, except:
	 
	4.	 	In the five years preceding the Closing Date, no Borrower or Subsidiary has acquired any
substantial part of the assets of any Person, except:






 











 





SCHEDULE 9.1.12

to

Loan and Security Agreement




PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES





	1.	 	Borrowers’ and Subsidiaries’ patents:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Status in	 	 	Federal	 	 	Registration	 
	Patent	 	 	Owner	 	 	Patent Office	 	 	Registration No.	 	 	Date	 






	2.	 	Borrowers’ and Subsidiaries’ trademarks:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Status in	 	 	Federal	 	 	Registration	 
	Trademark	 	 	Owner	 	 	Trademark Office	 	 	Registration No.	 	 	Date	 






	3.	 	Borrowers’ and Subsidiaries’ copyrights:





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Status in	 	 	Federal	 	 	Registration	 
	Copyright	 	 	Owner	 	 	Copyright Office	 	 	Registration No.	 	 	Date	 






	4.	 	Borrowers’ and Subsidiaries’ licenses (other than routine business licenses, authorizing them
to transact business in local jurisdictions):





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Licensor	 	Description of License	 	Term of License	 	Royalties Payable





 









 






SCHEDULE 9.1.15

to

Loan and Security Agreement





	ENVIRONMENTAL MATTERS 




 









 












SCHEDULE 9.1.16

to

Loan and Security Agreement




RESTRICTIVE AGREEMENTS




	 	 	 	 	 	 	 	 	 
	Entity	 	Agreement	 	Restrictive Provisions





 









 






SCHEDULE 9.1.17

to

Loan and Security Agreement





	LITIGATION 






	1.	 	Proceedings and investigations pending against Borrowers or Subsidiaries:






	2.	 	Threatened proceedings or investigations of which any Borrower or Subsidiary is aware:




 









 








SCHEDULE 9.1.19

to

Loan and Security Agreement




PENSION PLAN DISCLOSURES





 









 








SCHEDULE 9.1.21

to

Loan and Security Agreement





	LABOR CONTRACTS 




Borrowers and Subsidiaries are party to the following collective bargaining agreements, management
agreements and consulting agreements:




	 	 	 	 	 	 	 	 	 
	Parties	 	Type of Agreement	 	Term of Agreement





 









 






SCHEDULE 10.2.2

to

Loan and Security Agreement




EXISTING LIENS





 









 








SCHEDULE 10.2.17

to

Loan and Security Agreement




EXISTING AFFILIATE TRANSACTIONS