OF THE POOL VESSELS, WHICH SHALL BE IN FORM AND
SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT, AND WHICH SHALL DEMONSTRATE
THAT THE
5
FAIR MARKET VALUE OF THE POOL VESSELS AS OF THE AMENDMENT NO. 4 EFFECTIVE DATE
IS NOT LESS THAN $93,750,000.00.
(F)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED (I) FOR THE ACCOUNT
OF THE LENDERS PARTY HERETO PRO RATA IN ACCORDANCE WITH THEIR RESPECTIVE
COMMITMENTS, PAYABLE ON THE AMENDMENT NO. 4 EFFECTIVE DATE, AN AMENDMENT FEE
EQUAL TO THE PRODUCT OF 0.075% MULTIPLIED BY THE MAXIMUM AMOUNT AND (II) ALL
OTHER AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE AMENDMENT NO. 4 EFFECTIVE DATE,
INCLUDING, TO THE EXTENT INVOICED, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET
EXPENSES REQUIRED TO BE REIMBURSED OR PAID BY BORROWER HEREUNDER.
(G)
ALL LEGAL MATTERS WITH RESPECT TO AND ALL LEGAL DOCUMENTS
(INCLUDING, BUT NOT LIMITED TO, THE LOAN DOCUMENTS) EXECUTED IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT SHALL BE SATISFACTORY TO COUNSEL
FOR THE ADMINISTRATIVE AGENT.
(H)
BORROWER SHALL HAVE PAID THE REASONABLE FEES AND DISBURSEMENTS OF
COUNSEL TO THE ADMINISTRATIVE AGENT AND THE LENDERS IN CONNECTION WITH THIS
AMENDMENT.
The Administrative Agent shall notify Borrower and the Lenders of the Amendment
No. 4 Effective Date, and such notice shall be conclusive and binding.
3.
REPRESENTATIONS AND WARRANTIES.
BORROWER HEREBY REPRESENTS AND
WARRANTS TO THE ADMINISTRATIVE AGENT AND THE LENDERS THAT:
(A)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE LOAN DOCUMENTS
ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE HEREOF AND WITH THE
SAME EFFECT AS THOUGH MADE ON AND AS OF THE DATE HEREOF, EXCEPT TO THE EXTENT
SUCH REPRESENTATIONS AND WARRANTIES RELATE TO AN EARLIER DATE.
(B)
NO DEFAULT OR EVENT OF DEFAULT AND NO EVENT OR CONDITION WHICH,
WITH THE GIVING OF NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE SUCH A
DEFAULT OR EVENT OF DEFAULT, NOW EXISTS OR WOULD EXIST.
(C)
(I)
THE EXECUTION, DELIVERY AND PERFORMANCE BY BORROWER OF THIS
AMENDMENT IS WITHIN ITS ORGANIZATIONAL POWERS AND HAVE BEEN DULY AUTHORIZED BY
ALL NECESSARY ACTION (CORPORATE OR OTHERWISE) ON THE PART OF BORROWER, (II) THIS
AMENDMENT IS THE LEGAL, VALID AND BINDING OBLIGATION OF BORROWER, ENFORCEABLE
AGAINST BORROWER IN ACCORDANCE WITH ITS TERMS, AND (III) NEITHER THIS AMENDMENT
NOR THE EXECUTION, DELIVERY AND PERFORMANCE BY BORROWER HEREOF: (A) CONTRAVENES
THE TERMS OF BORROWER'S ORGANIZATION DOCUMENTS, (B) CONFLICTS WITH OR RESULTS IN
ANY BREACH OR CONTRAVENTION OF, OR THE CREATION OF ANY LIEN UNDER, ANY DOCUMENT
EVIDENCING ANY CONTRACTUAL OBLIGATION TO WHICH BORROWER IS A PARTY OR ANY ORDER,
INJUNCTION, WRIT OR DECREE TO WHICH BORROWER OR ITS PROPERTY IS SUBJECT, OR (C)
VIOLATES ANY REQUIREMENT OF LAW.
4.
EFFECT; NO WAIVER.
(A)
BORROWER HEREBY (I) REAFFIRMS AND ADMITS THE VALIDITY AND
ENFORCEABILITY OF THE LOAN DOCUMENTS AND ALL OF ITS OBLIGATIONS THEREUNDER AND
(II) AGREES AND ADMITS THAT IT HAS NO EXISTING DEFENSES TO OR OFFSETS AGAINST
ANY SUCH OBLIGATION. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE