Exhibit 10.11
CREDIT AGREEMENT
AMONG
GENERAL MARITIME CORPORATION,
VARIOUS LENDERS
AND
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT, SYNDICATION AGENT
AND LEAD ARRANGER
----------------------------------
DATED AS OF JUNE 27, 2001
----------------------------------
$165,000,000
================================================================================
================================================================================
<Page>
TABLE OF CONTENTS
Page
----
SECTION 1. Amount and Terms of Credit Facilities 1
1.01 The Commitments 1
1.02 Minimum Amount of Each Borrowing; Limitation on
Number of Borrowings 2
1.03 Notice of Borrowing 2
1.04 Disbursement of Funds 2
1.05 Notes 3
1.06 Pro Rata Borrowings 4
1.07 Interest 4
1.08 Interest Periods 5
1.09 Increased Costs, Illegality, etc. 6
1.10 Compensation 8
1.11 Change of Lending Office 9
1.12 Replacement of Lenders 9
SECTION 2. Intentionally Omitted 10
SECTION 3. Commitment Commission; Reductions of Commitment 10
3.01 Commitment Commission 10
3.02 Voluntary Termination of Unutilized Commitments 11
3.03 Mandatory Reduction of Commitments 11
SECTION 4. Prepayments; Payments; Taxes 13
4.01 Voluntary Prepayments 13
4.02 Mandatory Repayments 14
4.03 Method and Place of Payment 15
4.04 Net Payments; Taxes 16
SECTION 5.A. Conditions Precedent to the Initial Borrowing Date 17
5A.01 Execution of Agreement; Notes 17
5A.02 Fees, etc 17
5A.03 Opinions of Counsel 17
5A.04 Corporate Documents; Proceedings; etc. 18
5A.05 Shareholders' Agreements; Management Agreements; Debt Agreements;
Employment Agreements; Tax Sharing Agreements 18
5A.06 Subsidiaries Guaranty 19
5A.07 Pledge Agreement 19
5A.08 Solvency Certificate 19
5A.09 Pro Forma Balance Sheet; Financial Statements; Projections 20
5A.10 Material Adverse Change, etc. 20
SECTION 5B. Conditions Precedent to each Term Loan Borrowing Date 20
5B.01 Consummation of the Vessel Acquisitions; etc. 20
5B.02 Opinions of Counsel 21
(i)
<Page>
5B.03 Assignments of Earnings and Insurances 21
5B.04 Mortgages; Certificates of Ownership; Searches;
Class Certificates; Appraisal Report; Insurance 22
5B.05 Approvals 23
5B.06 Litigation 23
SECTION 6. Conditions Precedent to All Credit Events 23
6.01 No Default; Representations and Warranties 3
6.02 Notice of Borrowing 24
SECTION 7. Representations, Warranties and Agreements 24
7.01 Corporate/Limited Liability Company/Limited Partnership Status 24
7.02 Corporate Power and Authority 24
7.03 No Violation 25
7.04 Governmental Approvals 25
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. 25
7.06 Litigation 26
7.07 True and Complete Disclosure 26
7.08 Use of Proceeds; Margin Regulations 26
7.09 Tax Returns and Payments 27
7.10 Compliance with ERISA 27
7.11 The Security Documents 29
7.12 Representations and Warranties in Documents 29
7.13 Capitalization 29
7.14 Subsidiaries 29
7.15 Compliance with Statutes, etc. 29
7.16 Investment Company Act 29
7.17 Public Utility Holding Company Act 29
7.18 Pollution and Other Regulations 30
7.19 Labor Relations 30
7.20 Patents, Licenses, Franchises and Formulas 31
7.21 Indebtedness 31
7.22 Vessel Acquisitions 31
7.23 Insurance 31
7.24 Concerning the Vessels 31
7.25 Citizenship 32
7.26 Vessel Classification 32
7.27 No Immunity 32
7.28 Fees and Enforcement 32
7.29 Form of Documentation 32
SECTION 8. Affirmative Covenants 33
8.01 Information Covenants 33
8.02 Books, Records and Inspections 36
8.03 Maintenance of Property; Insurance 36
8.04 Corporate Franchises 36
8.05 Compliance with Statutes, etc. 37
(ii)
<Page>
8.06 Compliance with Environmental Laws 37
8.07 ERISA 37
8.08 End of Fiscal Years; Fiscal Quarters 39
8.09 Performance of Obligations 39
8.10 Payment of Taxes 39
8.11 Further Assurances 39
8.12 Interest Rate Protection 40
8.13 Deposit of Earnings 40
SECTION 9. Negative Covenants 40
9.01 Liens 40
9.02 Consolidation, Merger, Sale of Assets, etc. 42
9.03 Dividends 43
9.04 Indebtedness 43
9.05 Advances, Investments and Loans 44
9.06 Transactions with Affiliates 44
9.07 Consolidated Interest Coverage Ratio 45
9.08 Minimum Consolidated Working Capital Ratio 45
9.09 Maximum Leverage Ratio 45
9.10 Minimum Consolidated Net Worth 45
9.11 Collateral Maintenance 45
9.12 Limitation on Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc 46
9.13 Limitation on Certain Restrictions on Subsidiaries 46
9.14 Limitation on Issuance of Capital Stock 47
9.15 Business 47
SECTION 10. Events of Default 47
10.01 Payments 47
10.02 Representations, etc. 47
10.03 Covenants 47
10.04 Default Under Other Agreements 47
10.05 Bankruptcy, etc. 48
10.06 ERISA 48
10.07 Security Documents 49
10.08 Subsidiaries Guaranty 49
10.09 Judgments 49
10.10 Change of Control 49
SECTION 11. Definitions and Accounting Terms 50
11.01 Defined Terms 50
SECTION 12. Agency Provisions 66
12.01 Appointment 66
12.02 Nature of Duties 66
12.03 Lack of Reliance on the Administrative Agent 66
12.04 Certain Rights of the Agent 67
12.05 Reliance 67
12.06 Indemnification 67
(iii)
<Page>
12.07 The Administrative Agent in its Individual Capacity 67
12.08 Holders 68
12.09 Resignation by the Administrative Agent 68
SECTION 13. Miscellaneous 68
13.01 Payment of Expenses, etc. 68
13.02 Right of Setoff 69
13.03 Notices 70
13.04 Benefit of Agreement 70
13.05 No Waiver; Remedies Cumulative 72
13.06 Payments Pro Rata 72
13.07 Calculations; Computations 73
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL 73
13.09 Counterparts 74
13.10 Effectiveness 74
13.11 Headings Descriptive 75
13.12 Amendment or Waiver; etc. 75
13.13 Survival 76
13.14 Domicile of Loans 76
13.15 Limitation on Additional Amounts, etc. 77
13.16 Confidentiality 77
13.17 Register 77
13.18 Judgment Currency 78
13.19 Language 78
13.20 Waiver of Immunity 79
(iv)
<Page>
SCHEDULE I - Commitments
SCHEDULE II - Lender Addresses
SCHEDULE III - Mortgaged Vessels
SCHEDULE IV - Existing Liens
SCHEDULE V - Indebtedness
SCHEDULE VI - Insurance
SCHEDULE VII - ERISA
SCHEDULE VIII - Subsidiaries
SCHEDULE IX - Capitalization
SCHEDULE X - Approved Classification Societies
SCHEDULE XI - Existing Investments
SCHEDULE XII - Drawdown Amounts
EXHIBIT A - Notice of Borrowing
EXHIBIT B - Term Note
EXHIBIT C - Revolving Note
EXHIBIT D-1 - Opinion of Kramer Levin Naftalis & Frankel LLP,
counsel to the Borrower and its Subsidiaries
EXHIBIT D-2 - Opinion of Poles, Tublin, Patestides & Stratakis LLP,
New York maritime counsel to the Borrower and its
Subsidiaries
EXHIBIT D-3 - Opinion of Dennis J. Reeder, Esq., Marshall Islands
counsel to the Borrower and its Subsidiaries
EXHIBIT D-4 - Opinion of George E. Henries, Liberian counsel to the
Borrower and its Subsidiaries
EXHIBIT E - Officer's Certificate
EXHIBIT F - Subsidiaries Guaranty
EXHIBIT G - Pledge Agreement
EXHIBIT H-1 - Assignment of Earnings
EXHIBIT H-2 - Assignment of Insurances
EXHIBIT I-1 - Form of Marshall Islands Mortgage
EXHIBIT I-2 - Form of Liberian Mortgage
EXHIBIT I-3 - Form of Maltese Mortgage
EXHIBIT J - Form of Master Vessel and Collateral Trust Agreement
EXHIBIT K - Solvency Certificate
EXHIBIT L - Assignment and Assumption Agreement
EXHIBIT M - Form of Compliance Certificate
(v)
<Page>
CREDIT AGREEMENT, dated as of June 27, 2001, among GENERAL MARITIME
CORPORATION, a Marshall Islands corporation (the "BORROWER"), the Lenders party
hereto from time to time, and CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK
BRANCH, as Administrative Agent (in such capacity, the "ADMINISTRATIVE AGENT"),
Syndication Agent and Lead Arranger (all capitalized terms used herein and
defined in Section 11 are used herein as therein defined).
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Lenders are willing to make available to the Borrower the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT FACILITIES.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Term Loan Commitment severally
agrees to make a term loan or term loans (each a "TERM LOAN" and, collectively,
the "TERM LOANS") to the Borrower, which Term Loans (i) shall bear interest in
accordance with Section 1.07, (ii) may only be incurred on each Term Loan
Borrowing Date occurring prior to the Term Loan Commitment Termination Date,
(iii) shall be denominated in Dollars, (iv) unless the Syndication Date has
occurred (at which time this clause (iv) shall no longer be applicable), shall
be subject to an Interest Period which begins on such Term Loan Borrowing Date
and ends on the Syndication Date, (v) shall not exceed, in aggregate amount
borrowed on any Term Loan Borrowing Date, the Term Loan Drawdown Amount
applicable to the respective Vessel Acquisition(s) being consummated on such
Term Loan Borrowing Date and (vi) shall, subject to Section 3.03(a), not exceed
for any Lender, that amount which equals the Term Loan Commitment of such Lender
as in effect on such Term Loan Borrowing Date. Once repaid, Term Loans incurred
hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Lender with a Revolving Loan Commitment severally agrees to make a
revolving loan or revolving loans (each, a "REVOLVING LOAN" and, collectively,
the "REVOLVING LOANS") to the Borrower, which Revolving Loans (i) shall bear
interest in accordance with Section 1.07, (ii) prior to the Term Loan Commitment
Termination Date, may only be incurred on each Term Loan Borrowing Date, and,
thereafter, may be incurred at any time and from time to time prior to the
Revolving Loan Maturity Date, (iii) shall be denominated in Dollars, (iv) may be
repaid and reborrowed in accordance with the provisions hereof, (v) unless the
Syndication Date has occurred (at which time this clause (v) shall no longer be
applicable), shall be subject to an Interest Period which begins on such date of
incurrence and ends on the Syndication Date, (vi) shall not exceed at any time
prior to the Term Loan Commitment Termination Date, the Revolving Loan Drawdown
<Page>
Amount in respect of such Vessel Acquisition(s) theretofore consummated (or to
be consummated simultaneously with such Borrowing), and (vii) shall not exceed
for any Lender at any time that aggregate principal amount outstanding which
equals the Revolving Loan Commitment of such Lender at such time.
1.02 MINIMUM AMOUNT OF EACH BORROWING; LIMITATION ON NUMBER OF
BORROWINGS. (a) The aggregate principal amount of each Borrowing of Term Loans
shall not be less than $5,000,000 and the aggregate principal amount of each
Borrowing of Revolving Loans shall not be less than $1,000,000.
(b) More than one Borrowing may occur on the same date, but at no
time after the Syndication Date shall there be outstanding more than eleven
Borrowings of Loans subject to different Interest Periods in the aggregate for
all Tranches.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to make
a Borrowing hereunder, it shall give the Administrative Agent at its Notice
Office at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each Loan to be made hereunder, PROVIDED that
any such notice shall be deemed to have been given on a certain day only if
given before 11:00 A.M. (New York time). Each such written notice or written
confirmation of telephonic notice (each a "NOTICE OF BORROWING"), except as
otherwise expressly provided in Section 1.09, shall be irrevocable and shall be
given by the Borrower in the form of Exhibit A, appropriately completed to
specify (i) the aggregate principal amount of the Loans to be made pursuant to
such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day),
(iii) whether the Loans being made pursuant to such Borrowing shall constitute
Term Loans or Revolving Loans, (iv) the initial Interest Period to be applicable
thereto and (v) to which account the proceeds of such Loans are to be deposited.
The Administrative Agent shall promptly give each Lender which is required to
make Loans of the Tranche specified in the respective Notice of Borrowing,
notice of such proposed Borrowing, of such Lender's proportionate share thereof
and of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent may act without liability upon the basis of telephonic
notice of such Borrowing, believed by the Administrative Agent in good faith to
be from the Chairman of the Board or the Treasurer of the Borrower (or any other
officer of the Borrower designated in writing to the Administrative Agent by the
Chairman of the Board or the Treasurer of the Borrower as being authorized to
give such notices under this Agreement) prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to dispute
the Administrative Agent's record of the terms of such telephonic notice of such
Borrowing of Loans, absent manifest error.
1.04 DISBURSEMENT OF FUNDS. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 12:00 Noon (New
York time) on the date specified in each Notice of Borrowing, each Lender with a
Commitment of the respective Tranche will make available its PRO RATA portion of
each such Borrowing requested to be made on such date. All such amounts shall be
made available in Dollars and in immediately available
<Page>
funds at the Payment Office of the Administrative Agent and the Administrative
Agent will make available to the Borrower (prior to 1:00 p.m. (New York Time) on
such day to the extent of funds actually received by the Administrative Agent
prior to 12:00 Noon (New York Time) on such day) at the Payment Office, in the
account specified in the applicable Notice of Borrowing, the aggregate of the
amounts so made available by the Lenders. Unless the Administrative Agent shall
have been notified by any Lender prior to the date of Borrowing that such Lender
does not intend to make available to the Administrative Agent such Lender's
portion of any Borrowing to be made on such date, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on such date of Borrowing and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower a corresponding amount. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover on demand from
such Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Lender, at the overnight Federal Funds
Rate and (ii) if recovered from the Borrower, the rate of interest applicable to
the respective Borrowing, as determined pursuant to Section 1.07. Nothing in
this Section 1.04 shall be deemed to relieve any Lender from its obligation to
make Loans hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any failure by such Lender to make Loans
hereunder.
1.05 NOTES. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Lender shall, if requested by such
Lender, be evidenced (i) if Term Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B with blanks
appropriately completed in conformity herewith (each a "TERM NOTE" and,
collectively, the "TERM NOTES") and (ii) if Revolving Loans, by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit C, with blanks appropriately completed in conformity herewith (each a
"REVOLVING NOTE" and, collectively, the "REVOLVING NOTES").
(b) Each Term Note shall (i) be executed by the Borrower, (ii) be
payable to the order of such Lender and be dated the Initial Borrowing Date,
(iii) be in a stated principal amount equal to the Term Loan Commitment of such
Lender on the Initial Borrowing Date before giving effect to any reductions
thereto on such date (or, in the case of Term Notes issued after the Initial
Borrowing Date, be in a stated principal amount equal to the outstanding
principal amount of Term Loans of such Lender plus the Term Loan Commitment of
such Lender (if any) on the date of the issuance thereof) and be payable in the
principal amount of Term Loans evidenced thereby, (iv) mature on the Term Loan
Maturity Date, (v) bear interest as provided in Section 1.07 in respect of the
Loans evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
<Page>
(c) Each Revolving Note shall (i) be executed by the Borrower, (ii)
be payable to the order of such Lender and be dated the Initial Borrowing Date
(or, in the case of Revolving Notes issued after the Initial Borrowing Date, be
dated the date of the issuance thereof), (iii) be in a stated principal amount
equal to the Revolving Loan Commitment of such Lender and be payable in the
principal amount of the Revolving Loans evidenced thereby, (iv) mature on the
Revolving Loan Maturity Date, (v) bear interest as provided in Section 1.07 in
respect of the Loans evidenced thereby, (vi) be subject to voluntary prepayment
and mandatory repayment as provided in Sections 4.01 and 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
1.06 PRO RATA BORROWINGS. All Borrowings of Term Loans and Revolving
Loans under this Agreement shall be incurred from the Lenders PRO RATA on the
basis of their Term Loan Commitments or Revolving Loan Commitments, as the case
may be. It is understood that no Lender shall be responsible for any default by
any other Lender of its obligation to make Loans hereunder and that each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
1.07 INTEREST. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Loan from the date the proceeds thereof are
made available to the Borrower until the maturity (whether by acceleration or
otherwise) of such Loan at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to 2% per annum in
excess of the rate then borne by such Loans (or, if such overdue amount is not
interest or principal in respect of a Loan, 2.50% per annum in excess of the
Prime Rate as in effect from time to time), in each case with such interest to
be payable on demand.
(c) Accrued and unpaid interest shall be payable in respect of each
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three month intervals after the first day of such Interest Period, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(d) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to the
Loans to be made pursuant to the applicable Borrowing and shall promptly notify
the Borrower and the respective Lenders thereof. Each such determination shall,
absent manifest error, be final and conclusive
<Page>
and binding on all parties hereto.
1.08 INTEREST PERIODS. Except in the case of any Borrowing of Loans
made prior to the Syndication Date (which Loans shall be subject to the Interest
Period required by Section 1.01(a)(iv) or 1.01(b)(v), as applicable), at the
time it gives any Notice of Borrowing in respect of the making of any Loan (in
the case of the initial Interest Period applicable thereto) or on the third
Business Day prior to the expiration of an Interest Period applicable to such
Loan (in the case of any subsequent Interest Period, including subsequent
Interest Periods in respect of Loans made prior to the Syndication Date), the
Borrower shall have the right to elect, by giving the Administrative Agent
notice thereof, the interest period (each an "INTEREST PERIOD") applicable to
such Loan, which Interest Period shall, at the option of the Borrower, be a one,
two, three, six or, to the extent agreeable to all the Lenders, nine or twelve
month period; PROVIDED that:
(i) all Loans comprising a Borrowing shall at all times have the
same Interest Period;
(ii) the initial Interest Period for any Loan shall commence on the
date of Borrowing of such Loan and each Interest Period occurring
thereafter in respect of such Loan shall commence on the day immediately
following the day on which the immediately preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Loan begins on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the first
succeeding Business Day; PROVIDED, HOWEVER, that if any Interest Period
for a Loan would otherwise expire on a day which is not a Business Day but
is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the immediately preceding
Business Day;
(v) no Interest Period longer than one month may be selected at any
time when an Event of Default (or, if the Administrative Agent or the
Required Lenders have determined that such an election at such time would
be disadvantageous to the Lenders, a Default) is then in existence;
(vi) no Interest Period in respect of any Borrowing of any Tranche
of Loans shall be selected which extends beyond the respective Maturity
Date for such Tranche of Loans;
(vii) no Interest Period in respect of any Borrowing of Term Loans
longer than one month shall be selected which extends beyond any date upon
which a mandatory repayment of Term Loans will be required to be made
under Section 4.02(b) if the aggregate principal amount of Term Loans
which have Interest Periods which will expire after such date will be in
excess of the aggregate principal amount of Term Loans then
<Page>
outstanding less the aggregate amount of such required repayment on such
date; and
(viii) the selection of Interest Periods shall be subject to the
provisions of Section 1.02(b).
If upon the expiration of any Interest Period applicable to a
Borrowing, the Borrower has failed to elect a new Interest Period to be
applicable to such Loans as provided above, the Borrower shall be deemed to have
elected a one month Interest Period to be applicable to such Loans effective as
of the expiration date of such current Interest Period.
1.09 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that any
Lender shall have determined in good faith (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but,
with respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Loan because of (x) any change since the date of this Agreement in any
applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of taxation of
payment to any Lender of the principal of or interest on such Loan or any
other amounts payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or net profits of such
Lender, or any franchise tax based on the net income or net profits of
such Lender, in either case imposed by the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein), but without duplication of
any amounts payable in respect of Taxes pursuant to Section 4.04, or (B) a
change in official reserve requirements but, in all events, excluding
reserves required under Regulation D and/or (y) other circumstances since
the date of this Agreement affecting such Lender or the interbank
Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any Loan has
been made (x) unlawful by any law or governmental rule, regulation or
order, and/or (y) impossible by compliance by any Lender in good faith
with any governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the date of
this Agreement which materially and adversely affects the interbank
Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i)
<Page>
above) shall promptly give notice (by telephone confirmed in writing) to the
Borrower and, except in the case of clause (i) above, to the Administrative
Agent of such determination (which notice the Administrative Agent shall
promptly transmit to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, any Notice of Borrowing given by the Borrower with respect to
Loans which have not yet been incurred shall be deemed rescinded by the Borrower
and the Total Term Loan Commitment and the Total Unutilized Revolving Loan
Commitment shall thereafter not be available to be borrowed hereunder, and the
rate of interest applicable to any affected Loans then outstanding shall be the
Base Rate, as in effect from time to time, plus 0.50%, from the date such notice
is delivered to the Borrower and thereafter until such time as the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, (y) in the case of clause (ii) above, the Borrower agrees, subject to the
provisions of Sections 1.11 and 13.15 (to the extent applicable), to pay to such
Lender, upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its reasonable good faith discretion shall determine) as shall
be required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Lender, showing in reasonable detail the basis for and the
calculation thereof, submitted to the Borrower by such Lender in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, and subject to
Section 1.11, such Lender shall so notify the Administrative Agent and the
Borrower (and the Administrative Agent shall promptly give notice thereof to the
other Lenders) and thereafter (A) except in the case of an event of the type
described in clause (iii)(z) above, the Term Loan Commitment and/or the
Revolving Loan Commitment (as may be applicable) of such Lender shall be
permanently reduced by an amount sufficient to alleviate such circumstance
arising pursuant to clause (iii)(x) or (y) above, or shall be terminated in its
entirety if all of such Lender's Term Loans and/or Revolving Loans (as may be
applicable) are so affected, and the Borrower shall prepay in full the affected
Loans of such Lender, together with accrued interest thereon and, in the event
of a termination of such Lender's Term Loan Commitment and/or Revolving Loan
Commitment, any Commitment Commission which may be due to such Lender under this
Agreement (and, in the event all of such Lender's Loans are being repaid, any
other amounts which may be owing to such Lender hereunder), on either the last
day of the then current Interest Period applicable to each such affected Loan
(if such Lender may lawfully continue to maintain and fund such Loans) or
immediately (if such Lender may not lawfully continue to maintain and fund such
Loans to such day) and (B) in the case of an event of the type described in
clause (iii)(z) above, the Total Term Loan Commitment and/or the Unutilized
Revolving Loan Commitment (as may be applicable) of such Lender shall be
terminated in its entirety and the Borrower shall pay to such Lender any accrued
and unpaid Commitment Commission which may be due to such Lender under this
Agreement, and all outstanding Loans of such Lender shall, from the date such
notice is delivered to the Borrower and thereafter until such time as the
Administrative Agent or such Lender shall notify the Borrower that the
circumstances giving rise to the operation of clause (iii)(z) above with respect
to such Lender no longer exist, bear interest at a rate equal to the Base Rate,
as in effect from time to time, plus 0.50%, it being understood that,
notwithstanding anything to the contrary in this Agreement, to the extent any
repayment of Revolving Loans of any Lender affected by circumstances described
in clause (iii)(z) above are repaid prior to receipt
<Page>
by the Borrower of the notice described above with respect to the elimination of
such circumstances giving rise to the operation of clause (iii)(z) above with
respect to such Lender, any amount of the Unutilized Revolving Loan Commitment
of such Lender which may otherwise result from such repayment shall be deemed
permanently reduced upon the effectiveness of such repayment. The Administrative
Agent and each Lender (to the extent it continues to be a Lender hereunder)
agree that if any of them gives notice to the Borrower of any of the events
described in clause (i) or (iii) above, it shall promptly notify the Borrower
and, in the case of any such Lender, the Administrative Agent, if such event
ceases to exist. If any such event described in clause (iii) above ceases to
exist as to a Lender (to the extent it continues at such time to be a Lender
hereunder), the obligations of such Lender to make Loans on the terms and
conditions contained herein shall to the extent of such Lender's outstanding
Loans and Commitments as in effect at such time, be immediately reinstated.
(b) If at any time after the date of this Agreement any Lender in
good faith determines that the introduction of or any change in any applicable
law or governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, in each case introduced or changed
after the date hereof, will have the effect of increasing the amount of capital
required or requested to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Borrower agrees, subject to the
provisions of Section 13.15 (to the extent applicable), to pay to such Lender,
upon its written demand therefor, such additional amounts as shall be required
to compensate such Lender or such other corporation for the increased cost to
such Lender or such other corporation or the reduction in the rate of return to
such Lender or such other corporation as a result of such increase of capital.
In determining such additional amounts, each Lender will act reasonably and in
good faith and will use averaging and attribution methods which are reasonable,
PROVIDED that a written notice of such Lender setting forth in reasonable detail
such Lender's determination of compensation owing under this Section 1.09(b)
shall, absent manifest error and subject to the provisions of Section 13.15 (to
the extent applicable), be final and conclusive and binding on all the parties
hereto. Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 1.09(b), will give prompt written notice
thereof to the Borrower, which notice shall show in reasonable detail the basis
for and calculation of such additional amounts.
1.10 COMPENSATION. The Borrower agrees, subject to the provisions of
Section 13.15 (to the extent applicable), to compensate each Lender, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting and the calculation of such compensation), for all reasonable
losses, expenses and liabilities (including, without limitation, any such loss,
expense or liability incurred by reason of the liquidation or reemployment of
deposits or other funds required by such Lender to fund its Loans but excluding
any loss of anticipated profit) which such Lender may sustain: (i) if for any
reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of Loans does not occur on a date specified therefor in a Notice of
Borrowing (whether or not withdrawn by the Borrower); (ii) if any repayment
(including any repayment made pursuant to Section 4.02 or as a result of an
acceleration of the Loans pursuant to Section 10) of any of its Loans occurs on
a date which is
<Page>
not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any of its Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of any other Default
or Event of Default arising as a result of the Borrower's failure to repay Loans
or make payment on any Note held by such Lender when required by the terms of
this Agreement.
1.11 CHANGE OF LENDING OFFICE. Each Lender agrees that on the
occurrence of any event giving rise to the operation of Section 1.09(a)(ii) or
(iii), Section 1.09(b) or Section 4.04 with respect to such Lender, it will, if
requested by the Borrower, use reasonable good faith efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans affected by such event, PROVIDED that such designation is made on such
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section 1.11
shall affect or postpone any of the obligations of the Borrower or the rights of
any Lender provided in Sections 1.09 and 4.04.
1.12 REPLACEMENT OF LENDERS. (x) If any Lender becomes a Defaulting
Lender or otherwise defaults in its obligations to make Loans, (y) upon the
occurrence of any event giving rise to the operation of Section 1.09(a)(ii) or
(iii), Section 1.09(b) or Section 4.04 with respect to any Lender which results
in such Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders, or (z) as provided in Section 13.12(b)
in the case of certain refusals by a Lender to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders, the Borrower shall have the
right, if no Default or Event of Default will exist immediately after giving
effect to the respective replacement, to either replace such Lender (the
"REPLACED LENDER") with one or more other Eligible Transferee or Eligible
Transferees, none of whom shall constitute a Defaulting Lender at the time of
such replacement (collectively, the "REPLACEMENT LENDER") reasonably acceptable
to the Administrative Agent or, at the option of the Borrower, to replace only
(a) the Revolving Loan Commitment (and outstandings pursuant thereto) of the
Replaced Lender with an identical Revolving Loan Commitment provided by the
Replacement Lender or (b) in the case of a replacement as provided in Section
13.12(b) where the consent of the respective Lender is required with respect to
less than all Tranches of its Loans or Commitments, the Commitments and/or
outstanding Loans of such Lender in respect of each Tranche where the consent of
such Lender would otherwise be individually required, with identical Commitments
and/or Loans of the respective Tranche provided by the Replacement Lender,
PROVIDED that:
(i) at the time of any replacement pursuant to this Section 1.12,
the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans (or, in the case of the replacement of
only (a) the Revolving Loan Commitment, the Revolving Loan Commitment and
outstanding Revolving Loans or (b) the outstanding Term Loans and Term
Loan Commitment (if any), the outstanding Term Loans and Term Loan
Commitment (if any)) of the Replaced Lender and, in connection therewith,
shall pay to the Replaced Lender in respect thereof
<Page>
an amount equal to the sum (without duplication) of (x) an amount equal to
the principal of, and all accrued interest on, all outstanding Loans (or,
in the case of the replacement of only (I) the Revolving Loan Commitment,
the outstanding Revolving Loans or (II) the Term Loans and Term Loan
Commitment (if any), the outstanding Term Loans) of the Replaced Lender,
and (y) an amount equal to all accrued, but unpaid, Commitment Commission
owing to the Replaced Lender (but only with respect to the relevant
Tranche, in the case of the replacement of less than all Tranches of Loans
then held by the respective Replaced Lender) pursuant to Section 3.01; and
(ii) all obligations of the Borrower owing to the Replaced Lender
(other than those (a) specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is
concurrently being, paid or (b) relating to any Tranche of Loans and/or
Commitments of the respective Replaced Lender which will remain
outstanding after giving effect to the respective replacement) shall be
paid in full to such Replaced Lender concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Borrower, the
Replacement Lender shall become a Lender hereunder and, unless the respective
Replaced Lender continues to have outstanding Term Loans, a Term Loan Commitment
or a Revolving Loan Commitment hereunder, the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including Sections 1.09, 1.10, 4.04, 13.01 and 13.06),
which shall survive as to such Replaced Lender.
SECTION 2. INTENTIONALLY OMITTED.
SECTION 3. COMMITMENT COMMISSION; REDUCTIONS OF COMMITMENT.
3.01 COMMITMENT COMMISSION. (a) The Borrower agrees to pay the
Administrative Agent for distribution to each Non-Defaulting Lender with a Term
Loan Commitment a commitment commission (the "TL COMMITMENT COMMISSION") for the
period from the Effective Date to and including the Term Loan Commitment
Termination Date (or such earlier date as the Total Term Loan Commitment shall
have been terminated) computed at a rate for each day equal to 5/8 of 1% per
annum on the daily average Term Loan Commitment of such Non-Defaulting Lender.
Accrued TL Commitment Commission shall be due and payable quarterly in arrears
on each Quarterly Payment Date and on the Term Loan Commitment Termination Date
(or such earlier date upon which the Total Term Loan Commitment is terminated).
(b) The Borrower agrees to pay the Administrative Agent for
distribution to each Non-Defaulting Lender with a Revolving Loan Commitment a
commitment commission (the "RL COMMITMENT COMMISSION") for the period from the
Effective Date to and including the Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated)
computed at a rate for each day equal to 5/8 of 1% per annum on the
<Page>
daily average Unutilized Revolving Loan Commitment of such Non-Defaulting
Lender. Accrued RL Commitment Commission shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the Revolving Loan Maturity Date
(or such earlier date upon which the Total Revolving Loan Commitment is
terminated).
(c) The Borrower shall pay to the Administrative Agent, for the
Administrative Agent's own account, such other fees as have been agreed to in
writing by the Borrower and the Administrative Agent.
3.02 VOLUNTARY TERMINATION OF UNUTILIZED COMMITMENTS. (a) Upon at
least three Business Day's prior notice to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Lenders), the Borrower shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total Term Loan
Commitment, in whole or in part, in integral multiples of $1,000,000 in the case
of partial reductions thereto, PROVIDED that each such reduction shall apply
proportionately to permanently reduce the Term Loan Commitment of each Lender
with such a Commitment.
(b) Upon at least three Business Day's prior notice to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Borrower shall have the
right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Revolving Loan Commitment, in whole or in part,
in integral multiples of $1,000,000 in the case of partial reductions thereto,
PROVIDED that each such reduction shall apply proportionately to permanently
reduce the Revolving Loan Commitment of each Lender with such a Commitment.
(c) In the event of certain refusals by a Lender as provided in
Section 13.12(b) to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Lenders, the Borrower may, subject to the requirements of said Section
13.12(b) and upon five Business Days' written notice to the Administrative Agent
at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), terminate all of the Revolving Loan Commitment
and Term Loan Commitment (if any) of such Lender so long as all Loans, together
with accrued and unpaid interest, Commitment Commission and all other amounts,
owing to such Lender (other than amounts owing in respect of outstanding Term
Loans maintained by such Lender, if such Term Loans are not being repaid
pursuant to Section 13.12(b)) are repaid concurrently with the effectiveness of
such termination (at which time Schedule I shall be deemed modified to reflect
such changed amounts), and at such time, unless the respective Lender continues
to have outstanding Term Loans hereunder, such Lender shall no longer constitute
a "Lender" for purposes of this Agreement, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.09, 1.10, 4.04, 13.01 and 13.06), which shall survive as to such
repaid Lender.
3.03 MANDATORY REDUCTION OF COMMITMENTS. (a) The Total Commitments
(and the Term Loan Commitment and the Revolving Loan Commitment of each Lender)
shall terminate in its entirety on June 30, 2001 unless the Initial Borrowing
Date shall have occurred on or prior to such date.
<Page>
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, (i) the Total Term Loan Commitment shall be
reduced on each Term Loan Borrowing Date (after giving effect to the incurrence
of Term Loans on each such date) in an amount equal to the aggregate principal
amount of Term Loans incurred on such date and (ii) the Total Term Loan
Commitment (and the Term Loan Commitment of each Lender) shall terminate in its
entirety on the Term Loan Commitment Termination Date, after giving effect to
all Borrowings of Term Loans on such date.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on (i) the Business Day following the date of any
Collateral Disposition involving a Mortgaged Vessel (other than a Collateral
Disposition constituting an Event of Loss) and (ii) the earlier of (A) the date
which is 180 days following any Collateral Disposition constituting an Event of
Loss and (B) the date of receipt by the Borrower, any of its Subsidiaries or the
Administrative Agent of the insurance proceeds relating to such Event of Loss,
the Total Revolving Loan Commitment shall be permanently reduced by (1) if such
date occurs on or before the Term Loan Commitment Termination Date, an amount
equal to the Revolving Loan Drawdown Amount applicable to the Mortgaged Vessel
or Mortgaged Vessels which is/are the subject of such Collateral Disposition or
(2) if such date occurs after the Term Loan Commitment Termination Date, a
percentage of the Total Revolving Loan Commitment, expressed as a fraction,
equal to (x) the appraised value (as determined in accordance with the most
recent appraisal report delivered to the Administrative Agent (or obtained by
the Administrative Agent) pursuant to Section 8.01(c)) of the Mortgaged Vessel
or Mortgaged Vessels which is/are the subject of such Collateral Disposition
divided by (y) the Aggregate Mortgaged Vessel Value (as determined in accordance
with the most recent appraisal report delivered to the Administrative Agent (or
obtained by the Administrative Agent) pursuant to Section 8.01(c) before giving
effect to such Collateral Disposition).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on September 26, 2001 the Total Unutilized
Revolving Loan Commitment shall be permanently reduced by an amount, if any,
equal to the Revolving Loan Drawdown Amount applicable to each vessel listed on
Schedule III which has not been acquired by a Subsidiary Guarantor pursuant to a
Vessel Acquisition occurring on or prior to such date.
(f) Each reduction to the Total Term Loan Commitment and the Total
Revolving Loan Commitment pursuant to this Section 3.03 shall be applied
proportionately to reduce the Term Loan Commitment or the Revolving Loan
Commitment, as the case may be, of each Lender with such a Commitment.
SECTION 4. PREPAYMENTS; PAYMENTS; TAXES.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay the Loans, without premium or penalty except as provided by law, in whole
or in part at any time and
<Page>
from time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at its Notice Office at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay such Loans, whether Term Loans or Revolving Loans
shall be prepaid, the amount of such prepayment and the specific Borrowing
or Borrowings pursuant to which made, which notice the Administrative
Agent shall promptly transmit to each of the Lenders;
(ii) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 or such lesser amount of a Borrowing which is
outstanding, PROVIDED that no partial prepayment of Loans made pursuant to
any Borrowing shall reduce the outstanding Loans made pursuant to such
Borrowing to an amount less than $1,000,000;
(iii) at the time of any prepayment of Loans pursuant to this
Section 4.01 on any date other than the last day of the Interest Period
applicable thereto, the Borrower shall pay the amounts required pursuant
to Section 1.10;
(iv) in the event of certain refusals by a Lender as provided in
Section 13.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have been
approved by the Required Lenders, the Borrower may, upon five Business
Days' written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of
the Lenders), prepay all Loans, together with accrued and unpaid interest,
Commitment Commission, and other amounts owing to such Lender (or owing to
such Lender with respect to each Tranche which gave rise to the need to
obtain such Lender's individual consent) in accordance with said Section
13.12(b) so long as (A) in the case of the prepayment of Revolving Loans
of any Lender pursuant to this clause (iv) the Revolving Loan Commitment
of such Lender is terminated concurrently with such prepayment (at which
time Schedule I shall be deemed modified to reflect the changed Revolving
Loan Commitments), (B) in the case of the prepayment of Term Loans of any
Lender pursuant to this clause (iv) the Term Loan Commitment of such
Lender (if any) is terminated concurrently with such prepayment (at which
time Schedule I shall be deemed modified to reflect the changed Term Loan
Commitments) and (C) the consents required by Section 13.12(b) in
connection with the prepayment pursuant to this clause (iv) have been
obtained; and
(v) except as expressly provided in the preceding clause (iv), each
prepayment in respect of any Loans made pursuant to a Borrowing shall be
applied PRO RATA among the Loans comprising such Borrowing; PROVIDED that
in connection with any prepayment of Revolving Loans pursuant to this
Section 4.01, such prepayment shall not be applied to any Revolving Loan
of a Defaulting Lender until all other Revolving Loans of Non-Defaulting
Lenders have been repaid in full. Each prepayment of principal of Term
Loans pursuant to this Section 4.01 shall be applied to reduce the then
remaining Scheduled Repayments of Term Loans PRO RATA based upon the then
remaining principal amounts of the Scheduled Repayments of Term Loans
after giving effect to all prior
<Page>
reductions thereto.
4.02 MANDATORY REPAYMENTS. (a) On any day on which the aggregate
outstanding principal amount of Revolving Loans exceeds the Total Revolving Loan
Commitment as then in effect, the Borrower shall repay principal of Revolving
Loans in an amount equal to such excess.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below (each a
"SCHEDULED REPAYMENT DATE"), the Borrower shall be required to repay that
aggregate principal amount of Term Loans equal to the aggregate principal amount
set forth opposite such Scheduled Repayment Date in the table below (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(d),
a "SCHEDULED REPAYMENT"):
<Table>
<Caption>
Scheduled Repayment Date Amount
------------------------ ------
September 27, 2001 $6,750,000
December 27, 2001 $6,750,000
March 27, 2002 $6,750,000
June 27, 2002 $6,750,000
September 27, 2002 $6,750,000
December 27, 2002 $6,750,000
March 27, 2003 $6,750,000
June 27, 2003 $6,750,000
September 27, 2003 $4,000,000
December 27, 2003 $4,000,000
March 27, 2004 $4,000,000
June 27, 2004 $4,000,000
September 27, 2004 $4,000,000
December 27, 2004 $4,000,000
March 27, 2005 $4,000,000
June 27, 2005 $4,000,000
September 27, 2005 $4,000,000
December 27, 2005 $4,000,000
March 27, 2006 $4,000,000
Term Loan Maturity Date $17,000,000
</Table>
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, but without duplication, on (i) the
Business Day following the date of any Collateral Disposition involving a
Mortgaged Vessel (other than a Collateral Disposition constituting an Event of
Loss) and (ii) the earlier of (A) the date which is 180 days following any
<Page>
Collateral Disposition constituting an Event of Loss and (B) the date of receipt
by the Borrower, any of its Subsidiaries or the Administrative Agent of the
insurance proceeds relating to such Event of Loss, the Borrower shall be
required (1) if such date occurs on or before the Term Loan Commitment
Termination Date, to repay outstanding Term Loans in an amount equal to the Term
Loan Drawdown Amount applicable to the Mortgaged Vessel or Mortgaged Vessels
which is/are the subject of such Collateral Disposition or (2) if such date
occurs after the Term Loan Commitment Termination Date, to repay a percentage
expressed as a fraction, of the then outstanding aggregate principal amount of
Term Loans equal to (x) the appraised value (as determined in accordance with
the most recent appraisal report delivered to the Administrative Agent (or
obtained by the Administrative Agent) pursuant to Section 8.01(c)) of the
Mortgaged Vessel or Mortgaged Vessels which is/are the subject of such
Collateral Disposition divided by (y) the Aggregate Mortgaged Vessel Value (as
determined in accordance with the most recent appraisal report delivered to the
Administrative Agent (or obtained by the Administrative Agent) pursuant to
Section 8.01(c) before giving effect to such Collateral Disposition).
(d) The amount of each principal repayment of Term Loans required by
Section 4.02(c) shall be applied to reduce the then remaining Scheduled
Repayments PRO RATA based upon the then remaining principal amounts of such
Scheduled Repayments after giving effect to all prior reductions thereto.
(e) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the specific Borrowing or Borrowings pursuant
to which made, PROVIDED that (i) repayments of Loans pursuant to this Section
4.02 may only be made on the last day of an Interest Period applicable thereto
unless all Loans of the respective Tranche with Interest Periods ending on such
date of required repayment have been paid in full and (ii) each repayment of any
Loans comprising a Borrowing shall be applied PRO RATA among such Loans. In the
absence of a designation by the Borrower as described in the preceding sentence,
the Administrative Agent shall, subject to the preceding provisions of this
clause (e), make such designation in its sole reasonable discretion with a view,
but no obligation, to minimize breakage costs owing pursuant to Section 1.10.
(f) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all then outstanding Loans shall be repaid in full on the
Maturity Date applicable to such Loans.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Lender or Lenders entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
4.04 NET PAYMENTS; TAXES. (a) All payments made by any Credit Party
hereunder or under any Note will be made without setoff, counterclaim or other
defense. All such payments
<Page>
will be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of a
Lender pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Lender is located or any subdivision thereof or therein) and all interest,
penalties or similar liabilities with respect to such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "TAXES"). If any Taxes are so levied or
imposed, the Borrower agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) Each Lender agrees to use reasonable efforts (consistent with
legal and regulatory restrictions and subject to overall policy considerations
of such Lender) to file any certificate or document or to furnish to the
Borrower any information as reasonably requested by the Borrower that may be
necessary to establish any available exemption from, or reduction in the amount
of, any Taxes; PROVIDED, HOWEVER, that nothing in this Section 4.04(b) shall
require a Lender to disclose any confidential information (including, without
limitation, its tax returns or its calculations).
(c) If the Borrower pays any additional amount under this Section
4.04 to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a "Tax Benefit"), such
Lender shall pay to the Borrower an amount that such Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by such Lender in such year as a consequence of such Tax Benefit; PROVIDED,
HOWEVER, that (i) any Lender may determine, in its sole discretion consistent
with the policies of such Lender, whether to seek a Tax Benefit; (ii)
<Page>
any Taxes that are imposed on a Lender as a result of a disallowance or
reduction (including through the expiration of any tax credit carryover or
carryback of such Lender that otherwise would not have expired) of any Tax
Benefit with respect to which such Lender has made a payment to the Borrower
pursuant to this Section 4.04(c) shall be treated as a Tax for which the
Borrower is obligated to indemnify such Lender pursuant to this Section 4.04
without any exclusions or defenses; (iii) nothing in this Section 4.04(c) shall
require any Lender to disclose any confidential information to the Borrower
(including, without limitation, its tax returns); and (iv) no Lender shall be
required to pay any amounts pursuant to this Section 4.04(c) at any time during
which a Default or Event of Default exists.
SECTION 5.A. CONDITIONS PRECEDENT TO THE INITIAL BORROWING DATE. The
obligation of each Lender to make Loans on the Initial Borrowing Date is subject
at the time of the making of such Loans to the satisfaction or waiver of the
following conditions:
5A.01 EXECUTION OF AGREEMENT; NOTES. On or prior to the Initial
Borrowing Date (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent, for the account of each of the
Lenders, the appropriate Term Note and/or Revolving Note executed by the
Borrower, in each case in the amount, maturity and as otherwise provided herein.
5A.02 FEES, ETC. On the Initial Borrowing Date, the Borrower shall
have paid to the Administrative Agent and the Lenders all costs, fees and
expenses (including, without limitation, reasonable legal fees and expenses)
payable to the Administrative Agent and the Lenders or payable in respect of the
transactions contemplated by this Agreement to the extent then due.
5A.03 OPINIONS OF COUNSEL. (a) On the Initial Borrowing Date, the
Administrative Agent shall have received from Kramer Levin Naftalis & Frankel
LLP, special New York counsel to the Borrower and its Subsidiaries, an opinion
addressed to the Administrative Agent and each of the Lenders and dated the
Initial Borrowing Date covering the matters set forth in Exhibit D-1 which shall
(x) be in form and substance reasonably acceptable to the Administrative Agent
and (y) cover the perfection of the security interests (other than those to be
covered by opinions delivered pursuant to clauses (b), (c) and (d) below and
Section 5B.02 below) granted pursuant to the Security Documents and such other
matters incident to the transactions contemplated herein as the Administrative
Agent may reasonably request.
(b) On the Initial Borrowing Date, the Administrative Agent shall
have received from Poles, Tublin, Patestides & Stratakis LLP, special New York
maritime counsel to the Borrower and its Subsidiaries, an opinion addressed to
the Administrative Agent and each of the Lenders and dated the Initial Borrowing
Date covering the matters set forth in Exhibit D-2 which shall (x) be in form
and substance reasonably acceptable to the Administrative Agent and (y) cover
such matters as the Administrative Agent may reasonably request.
(c) On the Initial Borrowing Date, the Administrative Agent shall
have received from Dennis J. Reeder, Esq., special Marshall Islands counsel to
the Borrower and its Subsidiaries, an opinion addressed to the Administrative
Agent and each of the Lenders and
<Page>
dated the Initial Borrowing Date covering the matters set forth in Exhibit D-3
which shall (x) be in form and substance reasonably acceptable to the
Administrative Agent and (y) cover such matters as the Administrative Agent may
reasonably request.
(d) On the Initial Borrowing Date, the Administrative Agent shall
have received from George E. Henries, Esq., special Liberian counsel to the
Borrower and its Subsidiaries, an opinion addressed to the Administrative Agent
and each of the Lenders and dated the Initial Borrowing Date covering the
matters set forth in Exhibit D-4 which shall (x) be in form and substance
reasonably acceptable to the Administrative Agent and (y) cover the perfection
of the security interests granted pursuant to the Vessel Mortgages and such
other matters as the Administrative Agent may reasonably request.
5A.04 CORPORATE DOCUMENTS; PROCEEDINGS; ETC. (a) On the Initial
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by the Chairman of the Board, the
President, any Vice President, the Treasurer or an authorized member or general
partner of each Credit Party, and attested to by the Secretary or any Assistant
Secretary (or, to the extent such Credit Party does not have a Secretary or
Assistant Secretary, the analogous Person within such Credit Party) of such
Credit Party, as the case may be, in the form of Exhibit E, with appropriate
insertions, together with copies of the Certificate of Incorporation and By-Laws
(or equivalent organizational documents) of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and the
foregoing shall be reasonably acceptable to the Administrative Agent.
(b) All corporate, limited liability company, partnership and legal
proceedings, and all material instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents, shall be
reasonably satisfactory in form and substance to the Administrative Agent, and
the Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate, limited liability company
and partnership proceedings, governmental approvals, good standing certificates
and bring-down telegrams or facsimiles, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and
papers, where appropriate, to be certified by proper corporate or governmental
authorities.
5A.05 SHAREHOLDERS' AGREEMENTS; MANAGEMENT AGREEMENTS; DEBT
AGREEMENTS; EMPLOYMENT AGREEMENTS; TAX SHARING AGREEMENTS. On or before the
Initial Borrowing Date, there shall have been delivered to the Administrative
Agent or its counsel true and correct copies of the following documents:
(i) all agreements entered into by the Borrower or any of its
Subsidiaries governing the terms and relative rights of their capital
stock or membership interests and any agreements entered into by
shareholders or members relating to any such entity with respect to its
capital stock or membership interests (collectively, the "SHAREHOLDERS'
AGREEMENTS");
(ii) all agreements (other than Employment Agreements) with respect
to the management of the Borrower or any of its Subsidiaries or any of the
Vessels (collectively,
<Page>
the "MANAGEMENT AGREEMENTS");
(iii) all agreements evidencing or relating to Indebtedness of the
Borrower or any of its Subsidiaries which is to remain outstanding (other
than the Credit Documents) after giving effect to the incurrence of Loans
on the Initial Borrowing Date (collectively, the "DEBT AGREEMENTS");
(iv) all employment agreements entered into by the Borrower or any
of its Subsidiaries with members of management of the Borrower or any of
such Subsidiaries (collectively, the "EMPLOYMENT AGREEMENTS");
(v) all service agreements entered into between the Borrower and its
Subsidiaries ("SERVICE AGREEMENTS"); and
(vi) all tax sharing, tax allocation and other similar agreements
entered into by the Borrower or any of its Subsidiaries (collectively, the
"TAX SHARING AGREEMENTS");
all of which Shareholders' Agreements, Management Agreements, Debt
Agreements, Employment Agreements, Service Agreements and Tax Sharing Agreements
shall be in form and substance reasonably satisfactory to the Administrative
Agent and shall be in full force and effect on the Initial Borrowing Date.
5A.06 SUBSIDIARIES GUARANTY. On the Initial Borrowing Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered the
Subsidiaries Guaranty in the form of Exhibit F (as modified, supplemented or
amended from time to time, the "SUBSIDIARIES GUARANTY"), and the Subsidiaries
Guaranty shall be in full force and effect.
5A.07 PLEDGE AGREEMENT. On the Initial Borrowing Date, each Credit
Party shall have (x) duly authorized, executed and delivered the Pledge and
Security Agreement in the form of Exhibit G (as modified, supplemented or
amended from time to time, including the related documentation referred to below
in clause (y) of this Section 5A.07, the "PLEDGE AGREEMENT") and shall have (i)
delivered to the Collateral Agent, as pledgee, all the Pledged Securities
referred to therein, together with executed and undated stock powers in the case
of capital stock constituting Pledged Securities, and (ii) otherwise complied
with all of the requirements set forth in the Pledge Agreement and (y) duly
authorized, executed and delivered any other related documentation necessary or
advisable to perfect the Lien on the Pledge Agreement Collateral in the
respective jurisdictions of formation of the respective Credit Parties.
5A.08 SOLVENCY CERTIFICATE. On or before the Initial Borrowing Date,
the Borrower shall cause to be delivered to the Administrative Agent a solvency
certificate from the senior financial officer of the Borrower, in the form of
Exhibit K, which shall be addressed to the Administrative Agent and each of the
Lenders and dated the Initial Borrowing Date, setting forth the conclusion that,
after giving effect to each of the Vessel Acquisitions and the incurrence of all
the financings contemplated hereby, the Borrower individually, and the Borrower
and its Subsidiaries taken as a whole, are not insolvent and will not be
rendered insolvent by the incurrence of such indebtedness, and will not be left
with unreasonably small capital with which
<Page>
to engage in their respective businesses and will not have incurred debts beyond
their ability to pay such debts as they mature.
5A.09 PRO FORMA BALANCE SHEET; FINANCIAL STATEMENTS; PROJECTIONS. On
or prior to the Initial Borrowing Date, the Administrative Agent shall have
received copies of the financial statements (including the PRO FORMA financial
statements) and Projections referred to in Sections 7.05(a), (b) and (d).
5A.10 MATERIAL ADVERSE CHANGE, ETC. On the Initial Borrowing Date,
nothing shall have occurred (and the Administrative Agent shall have become
aware of no facts or conditions not previously known to it) which the
Administrative Agent shall determine is reasonably likely to have a material
adverse effect on the rights and remedies of the Lenders or the Administrative
Agent, or on the ability of the Borrower or the Borrower and its Subsidiaries,
taken as a whole (after giving effect to the respective Vessel Acquisition
occurring on such date), to perform its or their Obligations, or which is
reasonably likely to have a Material Adverse Effect.
SECTION 5B. CONDITIONS PRECEDENT TO EACH TERM LOAN BORROWING DATE.
The obligation of each Lender to make Term Loans on each Term Loan Borrowing
Date is subject at the time of the making of such Loans to the satisfaction or
waiver of the following conditions:
5B.01 CONSUMMATION OF THE VESSEL ACQUISITIONS; ETC. (a) On or prior
to each Term Loan Borrowing Date, there shall have been delivered to the
Administrative Agent true and correct copies of the Vessel Acquisition Documents
in respect of the Vessel Acquisition(s) being consummated on such date, all of
which Vessel Acquisition Documents shall be in form and substance reasonably
satisfactory to the Administrative Agent and in full force and effect. Each of
the Vessel Acquisition Documents shall not have been amended in any way adverse
to the interests of the Lenders unless such amendment is approved by the
Administrative Agent.
(b) On or prior to each Term Loan Borrowing Date (i) the respective
Vessel Acquisition(s) shall have been consummated in all material respects in
accordance with the respective Vessel Acquisition Documents and all applicable
laws, (ii) all conditions precedent to the consummation of the respective Vessel
Acquisition(s) contained in the respective Vessel Acquisition Documents shall
have been satisfied in all material respects and not waived without the consent
of the Administrative Agent, (iii) the Administrative Agent shall be reasonably
satisfied with the corporate and capital structure of the Borrower and its
Subsidiaries, after giving effect to each Vessel Acquisition, and the assets
acquired in connection therewith and (iv) the Administrative Agent shall have
received any information necessary to update Schedule III in respect of
Vessel(s) being acquired on such date.
(c) After giving effect to the consummation of each Vessel
Acquisition, the Borrower and its Subsidiaries shall have no outstanding
Indebtedness except (i) the Obligations and (ii) such other indebtedness as is
permitted to remain outstanding pursuant to Section 9.04.
5B.02 OPINIONS OF COUNSEL. (a) On each Term Loan Borrowing Date, the
Administrative Agent shall have received from Poles, Tublin, Patestides &
Stratakis LLP, special
<Page>
New York maritime counsel to the Borrower and its Subsidiaries (or other counsel
to the Borrower and its Subsidiaries qualified in such jurisdiction and
reasonably satisfactory to the Administrative Agent), an opinion addressed to
the Administrative Agent and each of the Lenders and dated such Term Loan
Borrowing Date, which shall (x) be in form and substance reasonably acceptable
to the Administrative Agent and (y) cover the perfection of the security
interests granted pursuant to such Vessel Mortgage(s) and such other matters
incident thereto as the Administrative Agent may reasonably request.
(b) On each Term Loan Borrowing Date on which a Vessel Acquisition
of a vessel registered under the laws and flag of the Republic of Marshall
Islands occurs, the Administrative Agent shall have received from Dennis J.
Reeder, Esq., special Marshall Islands counsel to the Borrower and its
Subsidiaries (or other counsel to the Borrower and its Subsidiaries qualified in
such jurisdiction and reasonably satisfactory to the Administrative Agent), an
opinion addressed to the Administrative Agent and each of the Lenders and dated
such Term Loan Borrowing Date, which shall (x) be in form and substance
reasonably acceptable to the Administrative Agent and (y) cover the perfection
of the security interests granted pursuant to such Vessel Mortgage(s) and such
other matters incident thereto as the Administrative Agent may reasonably
request.
(c) On each Term Loan Borrowing Date on which a Vessel Acquisition
of a vessel registered under the laws and flag of the Republic of Liberia
occurs, the Administrative Agent shall have received from George E. Henries,
Esq., special Liberian counsel to the Borrower and its Subsidiaries (or other
counsel to the Borrower and its Subsidiaries qualified in such jurisdiction and
reasonably satisfactory to the Administrative Agent), an opinion addressed to
the Administrative Agent and each of the Lenders and dated such Term Loan
Borrowing Date, which shall (x) be in form and substance reasonably acceptable
to the Administrative Agent and (y) cover the perfection of the security
interests granted pursuant to such Vessel Mortgage(s) and such other matters
incident thereto as the Administrative Agent may reasonably request.
(d) On each Term Loan Borrowing Date on which a Vessel Acquisition
of a vessel registered under the laws and flag of the Republic of Malta is being
acquired, the Administrative Agent shall have received from Fenech & Fenech,
special Maltese maritime counsel to the Borrower and its Subsidiaries (or other
counsel to the Borrower and its Subsidiaries qualified in such jurisdiction and
reasonably satisfactory to the Administrative Agent), an opinion addressed to
the Administrative Agent and each of the Lenders and dated such Term Loan
Borrowing Date, which shall (x) be in form and substance reasonably acceptable
to the Administrative Agent and (y) cover the perfection of the security
interests granted pursuant to such Vessel Mortgage(s) and such other matters
incident thereto as the Administrative Agent may reasonably request.
5B.03 ASSIGNMENTS OF EARNINGS AND INSURANCES. On each Term Loan
Borrowing Date, each Credit Party which is consummating a Vessel Acquisition on
such date shall have duly authorized, executed and delivered an Assignment of
Earnings in the form of Exhibit H-1 (as modified, supplemented or amended from
time to time, the "ASSIGNMENTS OF EARNINGS") and an Assignment of Insurances in
the form of Exhibit H-2 (as modified, supplemented or amended from time to time,
the "ASSIGNMENTS OF INSURANCES"), together covering all of such Credit Party's
<Page>
present and future Earnings and Insurance Collateral, in each case together
with:
(i) proper Financing Statements (Form UCC-1) fully executed for
filing under the UCC or in other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to
be created by the Assignment of Earnings and the Assignment of Insurances;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name any Credit Party as debtor and that are filed in the
jurisdictions referred to in Section 5B.03(i) above, together with copies
of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or in respect
of which the Collateral Agent shall have received Form UCC-3 Termination
Statements (or such other termination statements as shall be required by
local law) fully executed for filing); and
(iii) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Assignment
of Earnings and the Assignment of Insurances have been taken.
5B.04 MORTGAGES; CERTIFICATES OF OWNERSHIP; SEARCHES; CLASS
CERTIFICATES; APPRAISAL REPORT; INSURANCE. On each Term Loan Borrowing Date:
(a) Each Credit Party which is consummating a Vessel Acquisition on
such date shall have duly authorized, executed and delivered, and caused
to be recorded in the appropriate vessel registry, a first preferred
mortgage (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "VESSEL MORTGAGES"),
substantially in the form of Exhibit I-1, I-2 or I-3, as applicable, with
respect to each of such Vessels listed on Schedule III and being acquired
on such date (each, a "MORTGAGED VESSEL") and the Vessel Mortgages shall
be effective to create in favor of the Collateral Agent, for the benefit
of the Lenders, a legal, valid and enforceable first priority security
interest in and lien upon such Mortgaged Vessels, subject only to
Permitted Liens. Except as specifically provided above, all filings,
deliveries of instruments and other actions necessary or desirable in the
reasonable opinion of the Collateral Agent to protect and preserve such
security interests shall have been duly effected and the Collateral Agent
shall have received evidence thereof in form and substance reasonably
satisfactory to the Collateral Agent.
(b) The Administrative Agent shall have received (x) certificates of
ownership from appropriate authorities showing (or confirmation updating
previously reviewed certificates and indicating) the registered ownership
of each Mortgaged Vessel acquired on such date by the relevant Subsidiary
Guarantor and (y) the results of maritime registry searches with respect
to the Mortgaged Vessels acquired on such date, indicating no record liens
other than Liens in favor of the Collateral Agent.
(c) The Administrative Agent shall have received class certificates
from a
<Page>
classification society listed on Schedule X hereto or another
internationally recognized classification society acceptable to the
Collateral Agent, indicating that each Mortgaged Vessel acquired on such
date meets the criteria specified in Section 7.26.
(d) The Administrative Agent shall have received appraisal reports
of recent date in scope, form and substance, and from independent
appraisers, reasonably satisfactory to the Administrative Agent, stating
the then current fair market value of each of the Mortgaged Vessels
acquired on such date, the results of which shall be reasonably
satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received a report, in form
and scope reasonably satisfactory to the Administrative Agent, from a firm
of independent marine insurance brokers reasonably acceptable to the
Administrative Agent with respect to the insurance maintained by the
Credit Parties in respect of the Mortgaged Vessels acquired on such date,
together with a certificate from such broker certifying that such
insurances (i) are placed with such insurance companies and/or
underwriters and/or clubs, in such amounts, against such risks, and in
such form, as are customarily insured against by similarly situated
insureds for the protection of the Administrative Agent as mortgagee and
(ii) conform with the insurance requirements of the respective Vessel
Mortgages.
5B.05 APPROVALS On or prior to each Term Loan Borrowing Date, all
necessary governmental (domestic and foreign) and third party approvals and/or
consents (including any necessary anti-trust approvals or consents) in
connection with the Vessel Acquisition(s) being consummated on such date, the
transactions contemplated by the Documents with respect to such Vessel
Acquisition(s) and otherwise referred to herein or therein shall have been
obtained and remain in effect, and all applicable waiting periods shall have
expired without any action being taken by any competent authority which, in the
reasonable judgment of the Administrative Agent, restrains, prevents or imposes
materially adverse conditions upon the consummation of such Vessel
Acquisition(s) or the transactions contemplated by this Agreement or the other
Documents. Additionally, there shall not exist any judgment, order, injunction
or other restraint prohibiting or imposing materially adverse conditions upon
such Vessel Acquisition(s) or the other transactions contemplated by this
Agreement.
5B.06 LITIGATION. On each Term Loan Borrowing Date, no litigation by
any entity (private or governmental) shall be pending or, to the Borrower's
knowledge, threatened with respect to the Vessel Acquisition(s) being
consummated on such date or any Credit Document, or which the Administrative
Agent shall determine is reasonably likely to have a materially adverse effect
on such Vessel Acquisition(s) or a Material Adverse Effect.
SECTION 6. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligation
of each Lender to make Loans (including Loans made on the Initial Borrowing Date
and each Term Loan Borrowing Date) is subject to the satisfaction of the
following conditions:
6.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit
<Page>
Document shall be true and correct in all material respects both before and
after giving effect to such Credit Event with the same effect as though such
representations and warranties had been made on the date of such Credit Event
(it being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
6.02 NOTICE OF BORROWING. Prior to the making of each Loan, the
Administrative Agent shall have received the Notice of Borrowing required by
Section 1.03(a). The acceptance of the proceeds of each Credit Event shall
constitute a representation and warranty by the Borrower to the Administrative
Agent and each of the Lenders that all of the applicable conditions specified in
Sections 5A and 5B and in this Section 6 and applicable to such Credit Event
have been satisfied as of that time. All of the applicable Notes, certificates,
legal opinions and other documents and papers referred to in Sections 5A and 5B
and in this Section 6, unless otherwise specified, shall be delivered to the
Administrative Agent at the Notice Office for the account of each of the Lenders
and, except for the Notes, in sufficient counterparts for each of the Lenders
and shall be in form and substance reasonably satisfactory to the Administrative
Agent.
SECTION 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Lenders to enter into this Agreement and to make the Loans, the
Borrower makes the following representations, warranties and agreements, in each
case after giving effect to each Vessel Acquisition consummated on each Term
Loan Borrowing Date, all of which shall survive the execution and delivery of
this Agreement and the Notes and the making of the Loans, with the occurrence of
each Credit Event on or after the Initial Borrowing Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the Initial
Borrowing Date and on the date of each such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date):
7.01 CORPORATE/LIMITED LIABILITY COMPANY/LIMITED PARTNERSHIP STATUS.
The Borrower and each of its Subsidiaries (i) is a duly organized and validly
existing corporation, limited liability company or limited partnership, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or formation, (ii) has the corporate or other applicable power and
authority to own its property and assets and to transact the business in which
it is currently engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the conduct of its business as currently conducted requires
such qualifications, except for failures to be so qualified which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
7.02 CORPORATE POWER AND AUTHORITY. Each Credit Party has the
corporate or other applicable power and authority to execute, deliver and
perform the terms and provisions of each of the Documents to which it is party
and has taken all necessary corporate or other applicable action to authorize
the execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which
<Page>
it is party, and each of such Documents constitutes the legal, valid and binding
obligation of such Credit Party enforceable against such Credit Party in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.03 NO VIOLATION. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, will (i) contravene any material
provision of any applicable law, statute, rule or regulation or any applicable
order, writ, injunction or decree of any court or governmental instrumentality,
(ii) conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the material properties
or assets of the Borrower or any other Credit Party pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument, to which the Borrower or any
of its Subsidiaries is a party or by which it or any of its material property or
assets is bound or to which it may be subject or (iii) violate any provision of
the Certificate of Incorporation or By-Laws (or equivalent organizational
documents) of the Borrower or any of its Subsidiaries.
7.04 GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made or in the case of any filings or
recordings in respect of the Security Documents (other than the Vessel
Mortgages), will be made within 10 days of the date such Security Document is
required to be executed pursuant hereto), or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with, (i) the execution, delivery and performance
by any Credit Party of any Document to which it is a party or (ii) the legality,
validity, binding effect or enforceability of any Document to which it is a
party.
7.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; PROJECTIONS; ETC. (a) The (i) consolidated balance sheets of the
Borrower and its Subsidiaries, after giving effect to the Recapitalization, for
the fiscal year ended on December 31, 2000, and the fiscal quarter ended March
31, 2001, and (ii) the related consolidated statements of income, cash flows and
shareholders' equity of the Borrower and the Acquired Businesses for the fiscal
year or quarter, as the case may be, ended on such dates, copies of which have
been furnished to the Administrative Agent prior to the Effective Date, present
fairly in all material respects the consolidated financial position of the
Borrower and the Acquired Businesses, respectively, at the dates of such balance
sheets and the consolidated results of the operations of the Borrower and the
Acquired Businesses, respectively, for the periods covered thereby. All of the
foregoing historical financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied.
(b) The PRO FORMA consolidated balance sheet of the Borrower and its
Subsidiaries as of March 31, 2001, which has been furnished to the
Administrative Agent prior to the
<Page>
Effective Date, presents fairly in all material respects the PRO FORMA
consolidated financial position of the Borrower and its Subsidiaries as of March
31, 2001.
(c) Except as fully disclosed in the financial statements (including
the PRO FORMA financial statements) and the notes related thereto delivered
pursuant to Section 7.05(a) and (b), there were as of the Initial Borrowing Date
no liabilities or obligations with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the
aggregate, would be materially adverse to the Borrower and its Subsidiaries
taken as a whole. As of the Initial Borrowing Date, none of the Credit Parties
knows of any basis for the assertion against it of any liability or obligation
of any nature that is not fairly disclosed (including, without limitation, as to
the amount thereof) in the financial statements and the notes related thereto
delivered pursuant to Section 7.05(a) or (b) which, either individually or in
the aggregate, could be materially adverse to the Borrower and its Subsidiaries
taken as a whole.
(d) On and as of the Initial Borrowing Date, the Projections which
have been delivered to the Administrative Agent prior to the Effective Date have
been prepared on a basis consistent with the financial statements referred to in
Section 7.05(a), and are based on good faith estimates and assumptions believed
by management of the Borrower to be reasonable as of the date of such
Projections, and there are no statements or conclusions in any of the
Projections which are based upon or include information known to the Borrower to
be misleading in any material respect or which fail to take into account
material information known to the Borrower regarding the matters reported
therein. On the Initial Borrowing Date, the Borrower believes that the
Projections are reasonable and attainable, it being understood by the Lenders
that projections as to future results should not be viewed as fact and that
actual results may differ from those set forth in the Projections.
(e) Since December 31, 2000, nothing has occurred that has had or
could reasonably be expected to have a Material Adverse Effect.
7.06 LITIGATION. There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened (i) with respect to any Vessel
Acquisition or any Document or (ii) that could reasonably be expected to have a
Material Adverse Effect.
7.07 TRUE AND COMPLETE DISCLOSURE. All factual information (taken as
a whole) furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender (including, without limitation, all
information contained in the Documents) for purposes of or in connection with
this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender will be, true and accurate in all material
respects and not incomplete by omitting to state any fact necessary to make such
information (taken as a whole) not misleading in any material respect at such
time as such information was provided.
7.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) All proceeds of the
Term Loans shall be used to finance the Vessel Acquisitions and to pay fees and
expenses incurred in
<Page>
connection with the Vessel Acquisitions, PROVIDED that the aggregate principal
amount of Term Loans that may be used to finance any Vessel Acquisition shall
not exceed the respective Term Loan Drawdown Amount applicable to such Vessel
Acquisition.
(b) All proceeds of all Revolving Loans shall be used for the
Borrower's and its Subsidiaries' general corporate and working capital purposes
(including, without limitation, to finance acquisitions); PROVIDED that (i)
prior to the Term Loan Commitment Termination Date, all proceeds of Revolving
Loans shall be used to finance Vessel Acquisitions and (ii) in no event may the
aggregate principal amount of Revolving Loans used to finance any Vessel
Acquisition exceed the respective Revolving Loan Drawdown Amount in respect of
such Vessel Acquisition.
(c) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
7.09 TAX RETURNS AND PAYMENTS. The Borrower and each of its
Subsidiaries has timely filed all U.S. federal income tax returns, statements,
forms and reports for taxes and all other material U.S. and non-U.S. tax
returns, statements, forms and reports for taxes required to be filed by or with
respect to the income, properties or operations of the Borrower and/or any of
its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of the Borrower and its Subsidiaries as a whole for the
periods covered thereby. The Borrower and each of its Subsidiaries have at all
times paid, or have provided adequate reserves (in accordance with generally
accepted accounting principles) for the payment of, all material U.S. federal,
state and non-U.S. income taxes applicable for all taxes payable by them. There
is no action, suit, proceeding, investigation, audit, or claim now pending or,
to the knowledge of the Borrower or any of its Subsidiaries, threatened by any
authority regarding any taxes relating to the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. As of the Initial Borrowing Date, neither the Borrower nor any of its
Subsidiaries has entered into an agreement or waiver or been requested to enter
into an agreement or waiver extending any statute of limitations relating to the
payment or collection of taxes of the Borrower or any of its Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of the Borrower or any of its Subsidiaries not to be subject to the
normally applicable statute of limitations. Neither the Borrower nor any of its
Subsidiaries has incurred, or will incur, any material tax liability in
connection with any Vessel Acquisition.
7.10 COMPLIANCE WITH ERISA. (i) Schedule VII sets forth, as of the
Initial Borrowing Date, each Plan; each Plan, other than any Multiemployer Plan,
(and each related trust, insurance contract or fund) is in substantial
compliance with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan, other than any Multiemployer Plan,
(and each related trust, if any) which is intended to be qualified under Section
401(a) of the Code has received a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code; no Reportable Event has occurred; to the best knowledge of
the Borrower or any of its Subsidiaries or ERISA Affiliates no Plan which is a
Multiemployer Plan is insolvent or in reorganization; no
<Page>
Plan has an Unfunded Current Liability in an amount material to Borrower's
operation; no Plan (other than a Multiemployer Plan) which is subject to Section
412 of the Code or Section 302 of ERISA has an accumulated funding deficiency,
within the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been or will be timely made (except as disclosed on Schedule VII);
neither the Borrower nor any of its Subsidiaries nor any ERISA Affiliate has
incurred any material liability (including any indirect, contingent or secondary
liability) to or on account of a Plan pursuant to Section 409, 502(i), 502(l),
515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29),
4971 or 4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan; no condition exists which presents
a material risk to the Borrower or any of its Subsidiaries or any ERISA
Affiliate of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no proceedings have been instituted
by the PBGC to terminate or appoint a trustee to administer any Plan (in the
case of a Multiemployer Plan, to the best knowledge of the Borrower or any of
its Subsidiaries or ERISA Affiliates) which is subject to Title IV of ERISA; no
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, or, to the best knowledge of the
Borrower or any of its Subsidiaries, expected or threatened which could
reasonably be expected to have a Material Adverse Effect; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the Borrower and its Subsidiaries and ERISA Affiliates would
have no liabilities to any Plans which are Multiemployer Plans in the event of a
complete withdrawal therefrom in an amount which could reasonably be expected to
have a Material Adverse Effect; each group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered
employees or former employees of the Borrower, any of its Subsidiaries, or any
ERISA Affiliate has at all times been operated in material compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the
Code; no lien imposed under the Code or ERISA on the assets of the Borrower or
any of its Subsidiaries or any ERISA Affiliate exists nor has any event occurred
which could reasonably be expected to give rise to any such lien on account of
any Plan; and the Borrower and its Subsidiaries do not maintain or contribute to
any employee welfare plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any Plan the obligations with respect to which could
reasonably be expected to have a Material Adverse Effect.
(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All
contributions required to be made with respect to a Foreign Pension Plan have
been or will be timely made. Neither the Borrower nor any of its Subsidiaries
has incurred any obligation in connection with the termination of or withdrawal
from any Foreign Pension Plan that could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
maintains or contributes to any Foreign Pension Plan the obligations with
respect to which could in the aggregate reasonably be expected to have a
<Page>
Material Adverse Effect.
7.11 THE SECURITY DOCUMENTS. Each of the Security Documents creates
in favor of the Collateral Agent for the benefit of the Secured Creditors a
legal, valid and enforceable fully perfected first priority security interest in
and Lien on all right, title and interest of the Credit Parties in the
Collateral described therein, subject to no other Liens other than Permitted
Liens. No filings or recordings are required in order to perfect the security
interests created under any Security Document except for filings or recordings
which shall have been made (x) on or prior to the Initial Borrowing Date, in the
case of filings and recordings in respect of the Mortgaged Vessels acquired on
or prior to the Initial Borrowing Date, (y) on or prior to the respective Term
Loan Borrowing Date (to the extent not the Initial Borrowing Date), in the case
of the respective Vessel Mortgages in respect of the Mortgaged Vessels acquired
on such Term Loan Borrowing Date or (z) on or prior to the tenth day after the
Initial Borrowing Date or the respective Term Loan Borrowing Date (as
applicable) in the case of all other Collateral.
7.12 REPRESENTATIONS AND WARRANTIES IN DOCUMENTS. On the Initial
Borrowing Date, all representations and warranties made by the Borrower and its
Subsidiaries in the other Documents were true and correct in all material
respects at the time as of which such representations and warranties were made
(or deemed made).
7.13 CAPITALIZATION. (a) On the Initial Borrowing Date, the
authorized capital stock of the Borrower shall consist of (i) 75,000,000 shares
of Common Stock, $0.01 par value per share, 37,000,000 of which shall be issued
and outstanding and (ii) 5,000,000 shares of preferred stock, $0.01 par value
per share, none of which shall be issued and outstanding. All such outstanding
shares and membership interests have been duly and validly issued, are fully
paid and non-assessable and have been issued free of preemptive rights. Except
as set forth on Schedule IX, the Borrower has no outstanding securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock.
7.14 SUBSIDIARIES. On the Initial Borrowing Date, the Borrower has
no Subsidiaries other than those Subsidiaries listed on Schedule VIII (which
Schedule identifies the correct legal name, direct owner, percentage ownership
and jurisdiction of organization of each such Subsidiary on the Initial
Borrowing Date).
7.15 COMPLIANCE WITH STATUTES, ETC. The Borrower and each of its
Subsidiaries is in compliance in all material respects with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliances as could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.16 INVESTMENT COMPANY ACT. Neither the Borrower, nor any of its
Subsidiaries, is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
<Page>
7.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower, nor
any of its Subsidiaries, is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
7.18 POLLUTION AND OTHER REGULATIONS. (a) Each of the Borrower and
its Subsidiaries is in compliance with all applicable Environmental Laws
governing its business, except for such failures to comply as are not reasonably
likely to have a Material Adverse Effect, and neither the Borrower nor any of
its Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing. All licenses, permits,
registrations or approvals required for the business of the Borrower and each of
its Subsidiaries, as conducted as of the Effective Date, under any Environmental
Law have been secured and the Borrower and each of its Subsidiaries is in
substantial compliance therewith, except for such failures to secure or comply
as are not reasonably likely to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries is in any respect in noncompliance with,
breach of or default under any applicable writ, order, judgment, injunction, or
decree to which the Borrower or such Subsidiary is a party or which would affect
the ability of the Borrower or such Subsidiary to operate any Vessel, Real
Property or other facility and no event has occurred and is continuing which,
with the passage of time or the giving of notice or both, would constitute
noncompliance, breach of or default thereunder, except in each such case, such
noncompliance, breaches or defaults as are not likely to, individually or in the
aggregate, have a Material Adverse Effect. There are as of the Effective Date no
Environmental Claims pending or, to the knowledge of the Borrower, threatened,
against the Borrower or any of its Subsidiaries in respect of which an
unfavorable decision, ruling or finding would be reasonably likely to have a
Material Adverse Effect. There are no facts, circumstances, conditions or
occurrences on any Vessel, Real Property or other facility owned or operated by
the Borrower or any of its Subsidiaries that is reasonably likely (i) to form
the basis of an Environmental Claim against the Borrower, any of its
Subsidiaries or any Vessel, Real Property or other facility owned by the
Borrower or any of its Subsidiaries, or (ii) to cause such Vessel, Real Property
or other facility to be subject to any restrictions on its ownership, occupancy,
use or transferability under any Environmental Law, except in each such case,
such Environmental Claims or restrictions that individually or in the aggregate
are not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time prior to the date of
this Agreement or any subsequent Credit Event, been (i) generated, used, treated
or stored on, or transported to or from, any Vessel, Real Property or other
facility at any time owned or operated by the Borrower or any of its
Subsidiaries or (ii) released on or from any such Vessel, Real Property or other
facility, in each case where such occurrence or event, either individually or in
the aggregate, is reasonably likely to have a Material Adverse Effect.
7.19 LABOR RELATIONS. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect and there is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or,
to the Borrower's knowledge, threatened against any of them before the National
Labor Relations Board, and no material grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of
<Page>
its Subsidiaries or, to the Borrower's knowledge, threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Subsidiaries or, to the Borrower's knowledge, threatened
against the Borrower or any of its Subsidiaries and (iii) no union
representation proceeding pending with respect to the employees of the Borrower
or any of its Subsidiaries, except (with respect to the matters specified in
clauses (i), (ii) and (iii) above) as could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.20 PATENTS, LICENSES, FRANCHISES AND FORMULAS. The Borrower and
each of its Subsidiaries owns, or has the right to use, all material patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, and has obtained assignments of all leases and other
rights of whatever nature, necessary for the present conduct of its business,
without any known conflict with the rights of others, except for such failures
and conflicts which could not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
7.21 INDEBTEDNESS. Schedule V sets forth a true and complete list of
all Indebtedness (excluding the Obligations and the Obligations as defined in
the $300 Million Facility) of the Borrower and its Subsidiaries as of the
Initial Borrowing Date and which is to remain outstanding after giving effect to
the Initial Borrowing Date (the "EXISTING INDEBTEDNESS"), in each case showing
the aggregate principal amount thereof and the name of the borrower and any
other entity which directly or indirectly guarantees such debt.
7.22 VESSEL ACQUISITIONS. At the time of the consummation thereof,
each Vessel Acquisition shall have been consummated in all material respects in
accordance with the terms of the respective Documents and all applicable laws.
At the time of consummation of each Vessel Acquisition, all necessary material
consents and approvals of, and filings and registrations with, and all other
actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate such Vessel
Acquisition will have been obtained, given, filed or taken and are or will be in
full force and effect (or effective judicial relief with respect thereto has
been obtained). All applicable waiting periods with respect thereto have or,
prior to the time when required, will have, expired without, in all such cases,
any action being taken by any competent authority which restrains, prevents, or
imposes material adverse conditions upon any Vessel Acquisition. Additionally,
there does not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon any Vessel Acquisition, or the occurrence of
any Credit Event or the performance by the Borrower or any other Credit Party of
their respective obligations under the respective Credit Documents. At the time
of the consummation thereof, all actions taken by the Borrower pursuant to or in
furtherance of the Vessel Acquisitions have been taken in all material respects
in compliance with the respective Documents and all applicable laws.
7.23 INSURANCE. Schedule VI sets forth a true and complete listing
of all insurance maintained by each Credit Party as of the Initial Borrowing
Date, with the amounts insured (and any deductibles) set forth therein.
7.24 CONCERNING THE VESSELS. The name (after giving effect to the
respective
<Page>
Vessel Acquisition), registered owner (or, in the case of a Mortgaged Vessel to
be acquired after the Initial Borrowing Date, the owner of such Mortgaged Vessel
after giving effect to such Vessel Acquisition (which shall be a Subsidiary
Guarantor)), official number, and jurisdiction of registration and flag of each
Mortgaged Vessel (or, in the case of a Mortgaged Vessel to be acquired after the
Initial Borrowing Date, the jurisdiction of registration and flag after giving
effect to such Vessel Acquisition) is set forth on Schedule III. At the time of
the consummation of the respective Vessel Acquisition, and thereafter, each
Mortgaged Vessel will be operated in material compliance with all applicable
law, rules and regulations.
7.25 CITIZENSHIP. At the time of the consummation of the respective
Vessel Acquisition, and thereafter, the Borrower and each other Credit Party
which owns or operates, or will own or operate, one or more Mortgaged Vessels
is, or will be, qualified to own and operate such Mortgaged Vessels under the
laws of the Republic of the Marshall Islands, Republic of Liberia or Republic of
Malta, as may be applicable, or such other jurisdiction in which any such
Mortgaged Vessels are permitted, or will be permitted, to be flagged in
accordance with the terms of the respective Vessel Mortgages.
7.26 VESSEL CLASSIFICATION. At the time of the consummation of the
respective Vessel Acquisition, and thereafter, each Mortgaged Vessel is or will
be, classified in the highest class available for vessels of its age and type
with a classification society listed on Schedule X hereto or another
internationally recognized classification society acceptable to the Collateral
Agent, free of any conditions or recommendations, other than as permitted, or
will be permitted, under the Vessel Mortgage related thereto.
7.27 NO IMMUNITY. The Borrower does not, nor does any other Credit
Party or any of their respective properties, have any right of immunity on the
grounds of sovereignty or otherwise from the jurisdiction of any court or from
setoff or any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) under the
laws of any jurisdiction. The execution and delivery of the Credit Documents by
the Credit Parties and the performance by them of their respective obligations
thereunder constitute commercial transactions.
7.28 FEES AND ENFORCEMENT. No fees or taxes, including, without
limitation, stamp, transaction, registration or similar taxes, are required to
be paid to ensure the legality, validity, or enforceability of this Agreement or
any of the other Credit Documents other than recording taxes which have been, or
will be, paid as and to the extent due. Under the laws of the Republic of the
Marshall Islands, the choice of the laws of the State of New York as set forth
in the Credit Documents which are stated to be governed by the laws of the State
of New York is a valid choice of law, and the irrevocable submission by each
Credit Party to jurisdiction and consent to service of process and, where
necessary, appointment by such Credit Party of an agent for service of process,
in each case as set forth in such Credit Documents, is legal, valid, binding and
effective.
7.29 FORM OF DOCUMENTATION. Each of the Credit Documents is in
proper legal form under the laws of the Republic of the Marshall Islands for the
enforcement thereof under such laws, subject only to such matters which may
affect enforceability arising under the law of
<Page>
the State of New York. To ensure the legality, validity, enforceability or
admissibility in evidence of each such Credit Document in the Republic of the
Marshall Islands, it is not necessary that any Credit Document or any other
document be filed or recorded with any court or other authority in the Republic
of the Marshall Islands, except as have been made, or will be made, in
accordance with Section 7.11.
SECTION 8. AFFIRMATIVE COVENANTS. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitments have
terminated and the Loans and Notes, together with interest, Commitment
Commission and all other obligations incurred hereunder and thereunder, are paid
in full:
8.01 INFORMATION COVENANTS. The Borrower will furnish to the
Administrative Agent, with sufficient copies for each of the Lenders:
(a) QUARTERLY FINANCIAL STATEMENTS. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of the
Borrower, (i) the consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of income and cash flows, in each case for
such quarterly accounting period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly accounting period, and in
each case, setting forth comparative figures for the related periods in
the prior fiscal year and the budgeted figures for such quarterly periods
as set forth in the respective budget delivered pursuant to Section
8.01(d), all of which shall be certified by the senior financial officer
of the Borrower, subject to normal year-end audit adjustments and (ii)
management's discussion and analysis of the important operational and
financial developments during the fiscal quarter and year-to-date periods.
(b) ANNUAL FINANCIAL STATEMENTS. Within 90 days after the close of
each fiscal year of the Borrower, (i) the consolidated balance sheets of
the Borrower and its Subsidiaries as at the end of such fiscal year and
the related consolidated statements of income and retained earnings and of
cash flows for such fiscal year setting forth comparative figures for the
preceding fiscal year and certified by an independent certified public
accountants of recognized national standing reasonably acceptable to the
Administrative Agent, together with a report of such accounting firm
stating that in the course of its regular audit of the financial
statements of the Borrower and its Subsidiaries, which audit was conducted
in accordance with generally accepted auditing standards, such accounting
firm obtained no knowledge of any Default or Event of Default pursuant to
Sections 9.07 through 9.11, inclusive, which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the
nature thereof and (ii) management's discussion and analysis of the
important operational and financial developments during such fiscal year.
(c) APPRAISAL REPORTS. Together with delivery of the financial
statements described in Section 8.01(b) for each fiscal year, and at any
other time within 30 days of the written request of the Administrative
Agent, appraisal reports of recent date in form and substance and from
independent appraisers reasonably satisfactory to the
<Page>
Administrative Agent, stating the then current fair market value of each
of the Mortgaged Vessels on an individual charter-free basis. All such
appraisals shall be conducted by, and made at the expense of, the Borrower
(it being understood that the Administrative Agent may and, at the request
of the Required Lenders, shall, upon notice to the Borrower, obtain such
appraisals and that the cost of all such appraisals will be for the
account of the Borrower); PROVIDED that in no event shall the Borrower be
required to pay for more than two appraisal reports obtained pursuant to
this Section 8.01(c) per fiscal year of the Borrower, with the cost of any
such reports in excess thereof to be paid by the Lenders on a PRO RATA
basis.
(d) BUDGETS, ETC. As soon as available but not more than 45 days
after the commencement of each fiscal year of the Borrower beginning with
its fiscal year commencing on January 1, 2002, a budget of the Borrower
and its Subsidiaries (x) in reasonable detail for each of the twelve
months and four fiscal quarters of such fiscal year and (y) in summary
form for each of the four fiscal years immediately following such fiscal
year, in each case in form reasonably satisfactory to the Administrative
Agent, setting forth, with appropriate discussion, the principal
assumptions upon which such budgets are based. Together with each delivery
of financial statements pursuant to Sections 8.01(a) and (b), a comparison
of the current year to date financial results (other than in respect of
the balance sheets included therein) against the budgets required to be
submitted pursuant to this clause (d) also shall be presented.
(e) OFFICER'S COMPLIANCE CERTIFICATES. (x) At the time of the
delivery of the financial statements provided for in Sections 8.01(a) and
(b), a certificate of the senior financial officer of the Borrower in the
form of Exhibit M to the effect that, to the best of such officer's
knowledge, no Default or Event of Default has occurred and is continuing
or, if any Default or Event of Default has occurred and is continuing,
specifying the nature and extent thereof, which certificate shall, in the
case of any such financial statements delivered in respect of a period
ending on the last day of a fiscal quarter or year of the Borrower, set
forth the calculations required to establish whether the Borrower was in
compliance with the provisions of Sections 9.07 through 9.11, inclusive,
at the end of such fiscal quarter or year, as the case may be.
(y) At the time of the disposition of any Mortgaged Vessel, a
certificate of a senior financial officer of the Borrower which
certificate shall (i) certify on behalf of the Borrower the last appraisal
received pursuant to Section 8.01(c) determining the Aggregate Mortgaged
Vessel Value after giving effect to such disposition and (ii) set forth
the calculations required to establish whether the Borrower is in
compliance with the provisions of Section 9.11 after giving effect to such
disposition.
(f) NOTICE OF DEFAULT, LITIGATION OR EVENT OF LOSS. Promptly, and in
any event within three Business Days after the Borrower obtains knowledge
thereof, notice of (i) the occurrence of any event which constitutes a
Default or Event of Default which notice shall specify the nature thereof,
the period of existence thereof and what action the Borrower proposes to
take with respect thereto, (ii) any litigation or governmental
investigation or proceeding pending or threatened (x) against the Borrower
or any of its
<Page>
Subsidiaries which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect or (y) with respect to any Vessel
Acquisition or any Document and (iii) any Event of Loss in respect of any
Mortgaged Vessel.
(g) OTHER REPORTS AND FILINGS. Promptly, copies of all financial
information, proxy materials and other information and reports, if any,
which the Borrower or any of its Subsidiaries shall file with the
Securities and Exchange Commission (or any successor thereto) or deliver
to holders of its Indebtedness pursuant to the terms of the documentation
governing such Indebtedness (or any trustee, agent or other representative
therefor).
(h) ENVIRONMENTAL MATTERS. Promptly upon, and in any event within
five Business Days after, the Borrower obtains knowledge thereof, written
notice of any of the following environmental matters occurring after the
Initial Borrowing Date, except to the extent that such environmental
matters could not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect:
(i) any Environmental Claim pending or threatened in writing
against the Borrower or any of its Subsidiaries or any Vessel or
property owned or operated or occupied by the Borrower or any of its
Subsidiaries;
(ii) any condition or occurrence on or arising from any Vessel
or property owned or operated or occupied by the Borrower or any of
its Subsidiaries that (a) results in noncompliance by the Borrower
or such Subsidiary with any applicable Environmental Law or (b)
could reasonably be expected to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any such
Vessel or property;
(iii) any condition or occurrence on any Vessel or property
owned or operated or occupied by the Borrower or any of its
Subsidiaries that could reasonably be expected to cause such Vessel
or property to be subject to any restrictions on the ownership,
occupancy, use or transferability by the Borrower or such Subsidiary
of such Vessel or property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any
Vessel or property owned or operated or occupied by the Borrower or
any of its Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency; PROVIDED that in any
event the Borrower shall deliver to the Administrative Agent all
material notices received by the Borrower or any of its Subsidiaries
from any government or governmental agency under, or pursuant to,
CERCLA or OPA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's or such Subsidiary's response thereto. In addition, the
Borrower will provide the Administrative Agent with copies of all material
communications with any government or governmental
<Page>
agency and all material communications with any Person relating to any
Environmental Claim of which notice is required to be given pursuant to
this Section 8.01(h), and such detailed reports of any such Environmental
Claim as may reasonably be requested by the Administrative Agent or the
Required Lenders.
(i) OTHER INFORMATION. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or its
Subsidiaries as the Administrative Agent or the Required Lenders may
reasonably request in writing.
8.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries, in conformity in all material respects
with generally accepted accounting principles and all requirements of law, shall
be made of all dealings and transactions in relation to its business. The
Borrower will, and will cause each of its Subsidiaries to, permit officers and
designated representatives of the Administrative Agent and the Lenders as a
group to visit and inspect, during regular business hours and under guidance of
officers of the Borrower or any of its Subsidiaries, any of the properties of
the Borrower or its Subsidiaries, and to examine the books of account of the
Borrower or such Subsidiaries and discuss the affairs, finances and accounts of
the Borrower or such Subsidiaries with, and be advised as to the same by, its
and their officers and independent accountants, all upon reasonable advance
notice and at such reasonable times and intervals and to such reasonable extent
as the Administrative Agent or the Required Lenders may request; PROVIDED that,
unless an Event of Default exists and is continuing at such time, the
Administrative Agent and the Lenders shall not be entitled to request more than
two such visitations and/or examinations in any fiscal year of the Borrower.
8.03 MAINTENANCE OF PROPERTY; INSURANCE. The Borrower will, and will
cause each of its Subsidiaries to, (i) keep all material property necessary in
its business in good working order and condition (ordinary wear and tear and
loss or damage by casualty or condemnation excepted), (ii) maintain insurance on
the Mortgaged Vessels in at least such amounts and against at least such risks
as are in accordance with normal industry practice for similarly situated
insureds and (iii) furnish to the Administrative Agent, at the written request
of the Administrative Agent or any Lender, a complete description of the
material terms of insurance carried. In addition to the requirements of the
immediately preceding sentence, the Borrower will at all times cause insurance
of the types described in Schedule VI to (i) be maintained (with the same scope
of coverage as that described in Schedule VI) at levels which are at least as
great as the respective amount described on Schedule VI and (ii) comply with the
insurance requirements of the Vessel Mortgages.
8.04 CORPORATE FRANCHISES. The Borrower will, and will cause each of
its Subsidiaries, to do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents (if any) used in its business; PROVIDED,
HOWEVER, that nothing in this Section 8.04 shall prevent (i) sales or other
dispositions of assets, consolidations or mergers by or involving the Borrower
or any of its Subsidiaries which are permitted in accordance with Section 9.02,
(ii) any Subsidiary Guarantor from changing the jurisdiction of its organization
to the extent permitted by Section 9.12 or (iii) the abandonment by Borrower or
any of its Subsidiaries of any rights, franchises, licenses and
<Page>
patents that could not be reasonably expected to have a Material Adverse Effect.
8.05 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such non-compliances as could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
8.06 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) The Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with all
Environmental Laws applicable to the ownership or use of any Vessel or property
now or hereafter owned or operated by the Borrower or any of its Subsidiaries,
will within a reasonable time period pay or cause to be paid all costs and
expenses incurred in connection with such compliance (except to the extent being
contested in good faith), and will keep or cause to be kept all such Vessel or
property free and clear of any Liens imposed pursuant to such Environmental
Laws. Neither the Borrower nor any of its Subsidiaries will generate, use,
treat, store, release or dispose of, or permit the generation, use, treatment,
storage, release or disposal of, Hazardous Materials on any Vessel or property
now or hereafter owned or operated or occupied by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any ports or property except in material compliance with all
applicable Environmental Laws and as reasonably required by the trade in
connection with the operation, use and maintenance of any such property or
otherwise in connection with their businesses. The Borrower will, and will cause
each of its Subsidiaries to, maintain insurance on the Vessels in at least such
amounts as are in accordance with normal industry practice for similarly
situated insureds, against losses from oil spills and other environmental
pollution.
(b) At the written request of the Administrative Agent or the
Required Lenders, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at the
Borrower's sole cost and expense, an environmental assessment of any Vessel by
such Vessel's classification society (to the extent such classification society
is listed on Schedule X hereto) or another internationally recognized
classification society acceptable to the Administrative Agent. If said
classification society, in its assessment, indicates that such Vessel is not in
compliance with the Environmental Laws, said society shall set forth potential
costs of the remediation of such non-compliance; PROVIDED that such request may
be made only if (i) there has occurred and is continuing an Event of Default,
(ii) the Administrative Agent or the Required Lenders reasonably and in good
faith believe that the Borrower, any of its Subsidiaries or any such Vessel is
not in compliance with Environmental Law and such non-compliance could
reasonably be expected to have a Material Adverse Effect, or (iii) circumstances
exist that reasonably could be expected to form the basis of a material
Environmental Claim against the Borrower or any of its Subsidiaries or any such
Vessel. If the Borrower fails to provide the same within 90 days after such
request was made, the Administrative Agent may order the same, and the Borrower
shall grant and hereby grants to the Administrative Agent and the Lenders and
their agents access to such Vessel and specifically grants the Administrative
Agent and the Lenders an irrevocable non-exclusive license, subject to the
rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
<Page>
8.07 ERISA. As soon as reasonably possible and, in any event, within
ten (10) days after the Borrower or any of its Subsidiaries or any ERISA
Affiliate knows or has reason to know of the occurrence of any of the following,
the Borrower will deliver to the Administrative Agent, with sufficient copies
for each of the Lenders, a certificate of the senior financial officer of the
Borrower setting forth the full details as to such occurrence and the action, if
any, that the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrower has
previously delivered to the Administrative Agent a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC
Regulation Section 4043 is reasonably expected to occur with respect to such
Plan within the following 30 days; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has been
incurred or an application may be or has been made for a waiver or modification
of the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to be
made with respect to a Plan or Foreign Pension Plan has not been timely made and
such failure could result in a material liability for the Borrower or any of its
Subsidiaries; that a Plan has been or may be reasonably expected to be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA with a material amount of unfunded benefit liabilities; that a Plan (in
the case of a Multiemployer Plan, to the best knowledge of the Borrower or any
of its Subsidiaries or ERISA Affiliates) has a material Unfunded Current
Liability; that proceedings may be reasonably expected to be or have been
instituted by the PBGC to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a material delinquent contribution
to a Plan; that the Borrower, any of its Subsidiaries or any ERISA Affiliate
will or may reasonably expect to incur any material liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA or
with respect to a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code; or that the
Borrower, or any of its Subsidiaries may incur any material liability pursuant
to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan or any Foreign Pension Plan. Upon
request, the Borrower will deliver to the Administrative Agent with sufficient
copies to the Lenders (i) a complete copy of the annual report (on Internal
Revenue Service Form 5500-series) of each Plan (including, to the extent
required, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information) required to be
filed with the Internal Revenue Service and (ii) copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA. In
<Page>
addition to any certificates or notices delivered to the Lenders pursuant to the
first sentence hereof, copies of annual reports and any records, documents or
other information required to be furnished to the PBGC, and any notices received
by the Borrower, any of its Subsidiaries or any ERISA Affiliate with respect to
any Plan or Foreign Pension Plan with respect to any circumstances or event that
could reasonably be expected to result in a material liability shall be
delivered to the Lenders no later than ten (10) days after the date such annual
report has been filed with the Internal Revenue Service or such records,
documents and/or information has been furnished to the PBGC or such notice has
been received by the Borrower, such Subsidiary or such ERISA Affiliate, as
applicable.
8.08 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower shall cause
(i) each of its, and each of its Subsidiaries', fiscal years to end on December
31 of each year and (ii) each of its and its Subsidiaries' fiscal quarters to
end on March 31, June 30, September 30 and December 31 of each year.
8.09 PERFORMANCE OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by which
it is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.10 PAYMENT OF TAXES. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims for sums that have become
due and payable which, if unpaid, might become a Lien not otherwise permitted
under Section 9.01(i), PROVIDED that neither the Borrower nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with generally
accepted accounting principles.
8.11 FURTHER ASSURANCES. (a) The Borrower, and each other Credit
Party, agrees that at any time and from time to time, at the expense of the
Borrower or such other Credit Party, it will promptly execute and deliver all
further instruments and documents, and take all further action that may be
reasonably necessary, or that the Administrative Agent may reasonably require,
to perfect and protect any Lien granted or purported to be granted hereby or by
the other Credit Documents, or to enable the Collateral Agent to exercise and
enforce its rights and remedies with respect to any Collateral. Without limiting
the generality of the foregoing, the Borrower will execute and file, or cause to
be filed, such financing or continuation statements under the UCC (or any
non-U.S. equivalent thereto), or amendments thereto, such amendments or
supplements to the Vessel Mortgages, and such other instruments or notices, as
may be reasonably necessary, or that the Administrative Agent may reasonably
require, to protect and preserve the Liens granted or purported to be granted
hereby and by the other Credit Documents.
(b) The Borrower hereby authorizes the Collateral Agent to file one
or more financing or continuation statements under the UCC (or any non-U.S.
equivalent thereto), and
<Page>
amendments thereto, relative to all or any part of the Collateral without the
signature of the Borrower, where permitted by law. The Collateral Agent will
promptly send the Borrower a copy of any financing or continuation statements
which it may file without the signature of the Borrower and the filing or
recordation information with respect thereto.
(c) To the extent that any Vessel Acquisition is made by a
Subsidiary of the Borrower which is not a Credit Party at the time of such
acquisition, the Borrower shall cause such Subsidiary (and any Subsidiary which
directly owns the stock of such Subsidiary to the extent not a Credit Party) to
execute and deliver to the Administrative Agent a counterpart of the
Subsidiaries Guaranty, the Pledge Agreement (including any supplemental
agreement required to give effect to such security interests purported to be
created by the Pledge Agreement under applicable local law) and appropriate
Vessel Mortgage(s), together with all related documentation (including, without
limitation, opinions of counsel, corporate documents and proceedings and
officer's certificates) as such Subsidiary would have been required to deliver
pursuant to Sections 5A and 5B of this Agreement had such Subsidiary been a
Credit Party and such Vessel Acquisition been consummated on the Initial
Borrowing Date.
8.12 INTEREST RATE PROTECTION. The Borrower shall, within 60 days
following the Term Loan Commitment Termination Date, enter into and thereafter
maintain for a period of three years following the Initial Borrowing Date,
Interest Rate Protection Agreements with one or more Lenders or their affiliates
reasonably acceptable to the Administrative Agent establishing a fixed or
maximum interest rate acceptable to the Administrative Agent for an aggregate
amount of at least 50% of the Term Loans outstanding from time to time.
8.13 DEPOSIT OF EARNINGS. Each Credit Party shall cause the earnings
derived from each of the respective Mortgaged Vessels, to the extent
constituting Earnings and Insurance Collateral, to be deposited by the
respective account debtor in respect of such earnings into one or more of the
Concentration Accounts. Without limiting any Credit Party's obligations in
respect of this Section 8.13, each Credit Party agrees that, in the event it
receives any earnings constituting Earnings and Insurance Collateral, or any
such earnings are deposited other than in one of the Concentration Accounts, it
shall promptly deposit all such proceeds into one of the Concentration Accounts.
SECTION 9. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Total Commitments have
terminated and the Loans and Notes, together with interest, Commitment
Commission and all other Obligations incurred hereunder and thereunder, are paid
in full:
9.01 LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any Collateral, whether now owned or hereafter acquired, or sell any
such Collateral subject to an understanding or agreement, contingent or
otherwise, to repurchase such Collateral (including sales of accounts receivable
with recourse to the Borrower or any of its Subsidiaries), or assign any right
to receive income or permit the filing of any financing statement under the UCC
or any other similar notice of Lien under any similar recording or notice
statute; PROVIDED that the provisions of this Section 9.01 shall not prevent the
creation, incurrence, assumption or existence of the following (Liens
<Page>
described below are herein referred to as "PERMITTED LIENS"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with generally accepted accounting principles;
(ii) Liens imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such
as carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Collateral
and do not materially impair the use thereof in the operation of the
business of the Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings, which proceedings (or
orders entered in connection with such proceedings) have the effect of
preventing the forfeiture or sale of the Collateral subject to any such
Lien;
(iii) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule IV,
without giving effect to any renewals or extensions of such Liens,
PROVIDED that the aggregate principal amount of the Indebtedness, if any,
secured by such Liens does not increase from that amount outstanding on
the Effective Date, less any repayments of principal thereof;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) Liens arising out of judgments, awards, decrees or attachments
with respect to which the Borrower or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review, PROVIDED
that the aggregate amount of all such judgments, awards, decrees or
attachments shall not constitute an Event of Default under Section 10.09;
(vii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, Liens to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations in each case incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money) and Liens
arising by virtue of deposits made in the ordinary course of business to
secure liability for premiums to insurance carriers; PROVIDED that the
aggregate value of all cash and property at any time encumbered pursuant
to this clause (vii) shall not exceed $5,000,000; and
(viii) Liens in respect of seamen's wages which are not past due and
other maritime
<Page>
Liens for amounts not past due arising in the ordinary course of business
and not yet required to be removed or discharged under the terms of the
respective Vessel Mortgages.
In connection with the granting of Liens described above in this Section 9.01 by
the Borrower or any of its Subsidiaries, the Administrative Agent and the
Collateral Agent shall be authorized to take any actions deemed appropriate by
it in connection therewith (including, without limitation, by executing
appropriate lien subordination agreements in favor of the holder or holders of
such Liens, in respect of the item or items of equipment or other assets subject
to such Liens).
9.02 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. The Borrower will
not, and will not permit any Subsidiary Guarantor to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or substantially all of its assets or any of
the Collateral, or enter into any sale-leaseback transactions involving any of
the Collateral (or agree to do so at any future time), except that:
(i) the Borrower and each of its Subsidiaries may sell, lease or
otherwise dispose of any Mortgaged Vessels, PROVIDED that (w) such sale is
made at fair market value (as determined in accordance with the appraisal
report most recently delivered to the Administrative Agent (or obtained by
the Administrative Agent) pursuant to Section 8.01(c) or delivered at the
time of such sale to the Administrative Agent by the Borrower), (x) 100%
of the consideration in respect of such sale shall consist of cash or Cash
Equivalents received by the Borrower, or the respective Subsidiary
Guarantor which owned such Mortgaged Vessel, on the date of consummation
of such sale, (y) the Net Cash Proceeds of such sale or other disposition
shall be applied as required by Sections 4.02(a) (if applicable) (after
giving effect to any required reduction in the Total Revolving Loan
Commitment pursuant to Section 3.03(d)) and 4.02(c) to repay outstanding
Revolving Loans and Term Loans, and (z) the Borrower shall have delivered
to the Administrative Agent an officer's certificate, certified by the
senior financial officer of the Borrower, demonstrating pro forma
compliance (giving effect to such Collateral Disposition and, in the case
of calculations involving the appraised value of Mortgaged Vessels, using
valuations consistent with the appraisal report most recently delivered to
the Administrative Agent (or obtained by the Administrative Agent)
pursuant to Section 8.01(c)) with each of the covenants set forth in
Sections 9.07 through 9.11, inclusive, for the most recently ended Test
Period (or at the time of such sale, as applicable) and projected
compliance with such covenants for the one year period following such
Collateral Disposition, in each case setting forth the calculations
required to make such determination in reasonable detail;
(ii) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, overdue
accounts receivable arising in the ordinary course of business, but only
in connection with the compromise or collection thereof consistent with
customary industry practice (and not as part of any bulk sale); and
(iii) the Borrower or any Subsidiary Guarantor may transfer assets
or lease to or acquire or lease assets from the Borrower or any other
Subsidiary Guarantor, or any
<Page>
Subsidiary Guarantor may be merged into any other Subsidiary Guarantor or
the Borrower (as long as the Borrower is the surviving corporation), in
each case so long as all actions necessary or desirable to preserve,
protect and maintain the security interest and Lien of the Collateral
Agent in any Collateral held by any Person involved in any such
transaction are taken to the satisfaction of the Collateral Agent.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02, such Collateral (unless sold to the Borrower or
a Subsidiary of the Borrower) shall be sold free and clear of the Liens created
by the Security Documents, and the Administrative Agent and Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.
9.03 DIVIDENDS. The Borrower shall not, and shall not permit any of
its Subsidiaries to, authorize, declare or pay any Dividends with respect to the
Borrower or any of its Subsidiaries, except that:
(i) any Subsidiary of the Borrower (x) may pay Dividends to the
Borrower or any Subsidiary Guarantor which is a Wholly-Owned Subsidiary
and (y) if the respective Subsidiary is not a Wholly-Owned Subsidiary of
the Borrower, such Subsidiary may pay cash dividends to its shareholders
generally so long as the Borrower and/or its respective Subsidiaries which
own equity interests in the Subsidiary paying such Dividends receive at
least their proportionate share thereof (based upon their relative
holdings of the equity interests in the Subsidiary paying such Dividends
and taking into account the relative preferences, if any, of the various
classes of equity interests of such Subsidiary);
(ii) so long as there shall exist no Default or Event of Default
(both before and after giving effect to the payment thereof), the Borrower
may repurchase its outstanding equity interests (or options to purchase
such equity) theretofore held by the respective employees, officers or
directors following the death, disability, retirement or termination of
employment of employees, officers or directors of the Borrower or any of
its Subsidiaries, PROVIDED that the aggregate amount expended to so
repurchase equity of the Borrower shall not exceed $1,000,000 in any
fiscal year of the Borrower; and
(iii) the Transaction shall be permitted.
9.04 INDEBTEDNESS. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness (other than Indebtedness incurred pursuant to this Agreement and
the other Credit Documents and Indebtedness pursuant to the $300 Million
Facility) which would cause any Default or Event of Default, either on a pro
forma basis for the most recently ended Test Period (or at the time of such
incurrence, as applicable), or on a projected basis for the one year period
following such incurrence, with each of the covenants set forth in Sections 9.07
through 9.11, inclusive; PROVIDED that, in the event any Indebtedness to be
incurred by the Borrower or any of its Subsidiaries in a single issuance or
transaction or series of related issuances or transactions will exceed
$10,000,000, the Borrower shall have delivered to the Administrative Agent an
officer's certificate, certified by the senior financial officer of the
Borrower, demonstrating compliance
<Page>
with the preceding provisions of this Section 9.04 and setting forth the
calculations required to make such determination in reasonable detail.
Notwithstanding anything to the contrary set forth above in this Section 9.04,
no Subsidiary Guarantor shall incur any Indebtedness for borrowed money
(including contingent liabilities in respect thereof), except for Indebtedness
incurred pursuant to this Agreement and the other Credit Documents and
intercompany Indebtedness permitted pursuant to Section 9.05(iii).
9.05 ADVANCES, INVESTMENTS AND LOANS. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, lend money
or credit or make advances to any Person, or purchase or acquire any Margin
Stock, or make any capital contribution to any other Person (each of the
foregoing an "INVESTMENT" and, collectively, "INVESTMENTS") except that the
following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivable owing to any of them;
(ii) so long as no Event of Default exists or would result
therefrom, the Borrower and its Subsidiaries may make loans and advances
in the ordinary course of business to its employees so long as the
aggregate principal amount thereof at any time outstanding which are made
on or after the Effective Date (determined without regard to any
write-downs or write-offs of such loans and advances) shall not exceed
$2,000,000;
(iii) the Subsidiary Guarantors may make intercompany loans and
advances to the Borrower and between or among one another, and
Subsidiaries of the Borrower other than the Subsidiary Guarantors may make
intercompany loans and advances to the Borrower or any other Subsidiary of
the Borrower, in each case so long as all such Indebtedness of any Credit
Party shall be expressly subordinated to the payment of the Obligations;
(iv) the Borrower and its Subsidiaries may sell or transfer assets
to the extent permitted by Section 9.02;
(v) the Borrower may make Investments in the Subsidiary Guarantors
and, so long as no Event of Default exists and is continuing, the Borrower
may make Investments in its other Wholly-Owned Subsidiaries so long as
management of the Borrower in good faith believe that, after giving effect
to such Investment, the Borrower shall be able to meet its payment
obligations in respect of this Agreement; and
(vi) Investments existing on the Effective Date and described on
Schedule XI, without giving effect to any additions thereto or replacement
thereof.
9.06 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of such Person, other than in the ordinary course of business and
on terms and conditions no less favorable to such Person as would be obtained by
such Person at that time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that:
<Page>
(i) Dividends may be paid to the extent provided in Section 9.03;
(ii) loans and Investments may be made and other transactions may be
entered into between the Borrower and its Subsidiaries to the extent
permitted by Sections 9.04 and 9.05;
(iii) the Vessel Acquisitions and the Transaction shall be
permitted;
(iv) the Borrower may pay customary director's fees;
(v) the Borrower and its Subsidiaries may enter into employment
agreements or arrangements with their respective officers and employees in
the ordinary course of business; and
(vi) the Borrower and its Subsidiaries may pay management fees to
Wholly-Owned Subsidiaries of the Borrower in the ordinary course of
business.
9.07 CONSOLIDATED INTEREST COVERAGE RATIO. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period, in each
case taken as one accounting period, ended on the last day of any fiscal quarter
of the Borrower to be less than 2.50:1.00.
9.08 MINIMUM CONSOLIDATED WORKING CAPITAL RATIO. The Borrower will
not permit its Consolidated Working Capital Ratio on the last day of any fiscal
quarter of the Borrower to be less than 1.50:1.00.
9.09 MAXIMUM LEVERAGE RATIO. The Borrower will not permit the
Leverage Ratio on the last day of any fiscal quarter of the Borrower to be
greater than 0.60:1.00.
9.10 MINIMUM CONSOLIDATED NET WORTH. The Borrower will not permit
its Consolidated Net Worth at any time to be less than the Applicable Minimum
Net Worth Amount at such time.
9.11 COLLATERAL MAINTENANCE. The Borrower will not permit the sum of
the fair market value of all Mortgaged Vessels which have not been sold,
transferred, lost or otherwise disposed of, on an individual charter-free basis,
at any time (such value, the "AGGREGATE MORTGAGED VESSEL VALUE"), as determined
by the most recent appraisal delivered by the Borrower to the Administrative
Agent or obtained by the Administrative Agent in accordance with Section
8.01(c), to equal less than 130% of the aggregate principal amount of
outstanding Term Loans plus the Total Revolving Loan Commitment at such time;
PROVIDED that, so long as any default in respect of this Section 9.11 is not
caused by any voluntary Collateral Disposition, such default shall not
constitute an Event of Default so long as within 60 days of the occurrence of
such default, the Borrower shall either (i) post additional collateral
satisfactory to the Required Lenders, pursuant to security documentation
reasonably satisfactory in form and substance to the Collateral Agent,
sufficient to cure such default (and shall at all times during such period and
prior to satisfactory completion thereof, be diligently carrying out such
actions) or (ii) make such repayments of Term Loans and/or reductions to the
Total Revolving Loan Commitment (and any required repayments of Revolving Loans
resulting therefrom) in an amount sufficient to cure
<Page>
such default (it being understood that any action taken in respect of this
proviso shall only be effective to cure such default pursuant to this Section
9.11 to the extent that no Default or Event of Default exists hereunder
immediately after giving effect thereto).
9.12 LIMITATION ON MODIFICATIONS OF CERTIFICATE OF INCORPORATION,
BY-LAWS AND CERTAIN OTHER AGREEMENTS; ETC. (i) The Borrower will not, and will
not permit any of its Subsidiaries to, amend or modify, or permit the amendment
or modification of any Vessel Acquisition Document except for amendments or
modifications which are not in any way materially adverse to the interests of
the Lenders and (ii) the Borrower will not, and will not permit any Subsidiary
Guarantor to amend, modify or change its Certificate of Incorporation,
Certificate of Formation (including, without limitation, by the filing or
modification of any certificate of designation), By-Laws, limited liability
company agreement, partnership agreement (or equivalent organizational
documents) or any agreement entered into by it with respect to its capital stock
or membership interests (or equivalent equity interests) (including any
Shareholders' Agreement), or enter into any new agreement with respect to its
capital stock or membership interests (or equivalent interests), other than any
amendments, modifications or changes or any such new agreements which are not in
any way materially adverse to the interests of the Lenders. Notwithstanding the
foregoing provisions of this Section 9.12, upon not less than 30 days prior
written notice to the Administrative Agent and so long as no Default or Event of
Default exists and is continuing, any Subsidiary Guarantor may change its
jurisdiction of organization to another jurisdiction reasonably satisfactory to
the Administrative Agent, PROVIDED that such Subsidiary Guarantor shall promptly
take all actions reasonably deemed necessary by the Collateral Agent to
preserve, protect and maintain, without interruption, the security interest and
Lien of the Collateral Agent in any Collateral owned by such Subsidiary
Guarantor to the satisfaction of the Collateral Agent, and such Subsidiary
Guarantor shall have provided to the Administrative Agent and the Lenders such
opinions of counsel as may be reasonably requested by the Administrative Agent
to assure itself that the conditions of this proviso have been satisfied.
9.13 LIMITATION ON CERTAIN RESTRICTIONS ON SUBSIDIARIES. The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of the Borrower's Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Borrower or a Subsidiary of the Borrower, (iv) customary provisions restricting
assignment of any agreement entered into by the Borrower or a Subsidiary of the
Borrower in the ordinary course of business, (v) any holder of a Permitted Lien
may restrict the transfer of the asset or assets subject thereto and (vi)
restrictions which are not more restrictive than those contained in this
Agreement contained in any documents governing any Indebtedness incurred after
the Effective Date in accordance with the provisions of this Agreement.
<Page>
9.14 LIMITATION ON ISSUANCE OF CAPITAL STOCK. (a) The Borrower will
not issue, and will not permit any Subsidiary other than a Subsidiary Guarantor
to issue, any preferred stock (or equivalent equity interests) other than
Qualified Preferred Stock.
(b) The Borrower will not permit any Subsidiary Guarantor to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of the Borrower or any of its Subsidiaries in
any class of the capital stock of such Subsidiary and (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors to the extent
required by applicable law. All capital stock of any Subsidiary Guarantor issued
in accordance with this Section 9.14(b) shall be delivered to the Collateral
Agent pursuant to the Pledge Agreement.
9.15 BUSINESS. The Borrower and its Subsidiaries will not engage in
any business other than the businesses in which they are engaged in as of the
Effective Date and activities directly related thereto, and similar or related
businesses.
SECTION 10. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "EVENT OF DEFAULT"):
10.01 PAYMENTS. The Borrower shall (i) default in the payment when
due of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more Business Days, in the payment when
due of any interest on any Loan or Note, or any Commitment Commission or any
other amounts owing hereunder or thereunder; or
10.02 REPRESENTATIONS, ETC. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
10.03 COVENANTS. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i), 8.08 or Section 9 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement and, in the case of this clause (ii), such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by the
Administrative Agent or any of the Lenders; or
10.04 DEFAULT UNDER OTHER AGREEMENTS. (i) The Borrower or any of its
Subsidiaries shall default in any payment of any Indebtedness (other than the
Obligations) beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) the Borrower or any
of its Subsidiaries shall default in the observance or performance of any
agreement or condition relating to any Indebtedness (other than the Obligations)
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness (or a
<Page>
trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity or (iii) any Indebtedness (other than
the Obligations) of the Borrower or any of its Subsidiaries shall be declared to
be due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof, PROVIDED
that it shall not be a Default or Event of Default under this Section 10.04
unless the aggregate principal amount of all Indebtedness as described in
preceding clauses (i) through (iii), inclusive, exceeds $10,000,000; or
10.05 BANKRUPTCY, ETC. (a) The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "BANKRUPTCY CODE"); or an involuntary case is commenced
against the Borrower or any of its Subsidiaries and the petition is not
controverted within 20 days after service of summons, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of the Borrower or any of its Subsidiaries or the Borrower or
any of its Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Subsidiaries or there is commenced
against the Borrower or any of its Subsidiaries any such proceeding which
remains undismissed for a period of 60 days, or the Borrower or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower or
any of its Subsidiaries suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is reasonably likely to have a
trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is reasonably likely to be terminated or to be
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made with respect to a
Plan or a Foreign Pension Plan is not timely made, the Borrower or any of its
Subsidiaries or any ERISA Affiliate has incurred or events have happened, or
reasonably expected to happen, that will cause it to incur any liability to or
on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or
<Page>
Section 401(a)(29), 4971 or 4975 of the Code or on account of a group health
plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code)
under Section 4980B of the Code, or the Borrower, or any of its Subsidiaries,
has incurred or is reasonably likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section 3(1) of ERISA) that
provide benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or Plans or Foreign Pension Plans; (b) there
shall result from any such event or events the imposition of a lien, the
granting of a security interest, or a liability or a material risk of incurring
a liability; and (c) such lien, security interest or liability, individually,
and/or in the aggregate, in the reasonable opinion of the Required Lenders, has
had, or could reasonably be expected to have, a Material Adverse Effect; or
10.07 SECURITY DOCUMENTS. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease in any material respect to give the Collateral Agent
for the benefit of the Secured Creditors the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a
perfected security interest in, and Lien on, all of the Collateral), in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except in connection with Permitted Liens), and subject to no other Liens
(except Permitted Liens), or any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any of the Security Documents and such default
shall continue beyond any grace period (if any) specifically applicable thereto
pursuant to the terms of such Security Document, or any "event of default" (as
defined in any Vessel Mortgage) shall occur in respect of any Vessel Mortgage;
or
10.08 SUBSIDIARIES GUARANTY. After the execution and delivery
thereof, the Subsidiaries Guaranty, or any provision thereof, shall cease to be
in full force or effect as to the relevant Subsidiary Guarantor (unless such
Subsidiary Guarantor is no longer a Subsidiary by virtue of a liquidation, sale,
merger or consolidation permitted by Section 9.02) or any Subsidiary Guarantor
(or Person acting by or on behalf of such Subsidiary Guarantor) shall deny or
disaffirm such Subsidiary Guarantor's obligations under the Subsidiaries
Guaranty, or any Subsidiary Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to the Subsidiaries Guaranty beyond any grace period (if any)
provided therefor; or
10.09 JUDGMENTS. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in the aggregate for
the Borrower and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments, to the extent not covered by insurance,
exceeds $10,000,000; or
10.10 CHANGE OF CONTROL. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by
<Page>
written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent, any Lender or the
holder of any Note to enforce its claims against any Credit Party (PROVIDED
that, if an Event of Default specified in Section 10.05 shall occur, the result
which would occur upon the giving of written notice by the Administrative Agent
to the Borrower as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitments terminated, whereupon all Commitments of each Lender shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; and
(iii) enforce, as Collateral Agent, all of the Liens and security interests
created pursuant to the Security Documents.
SECTION 11. DEFINITIONS AND ACCOUNTING TERMS.
11.01 DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACQUIRED BUSINESSES" shall have the meaning provided in the
definition of Recapitalization.
"ADMINISTRATIVE AGENT" shall have the meaning provided in the first
paragraph of this Agreement, and shall include any successor thereto.
"AFFILIATE" shall mean, with respect to any Person, any other Person
(including, for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; PROVIDED, HOWEVER,
that for purposes of Section 9.06, an Affiliate of the Borrower shall include
any Person that directly or indirectly owns more than 5% of any class of the
capital stock of the Borrower and any officer or director of the Borrower or any
of its Subsidiaries. A Person shall be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
anything to the contrary contained above, for purposes of Section 9.06, neither
the Administrative Agent nor any Lender (or any of their respective affiliates)
shall be deemed to constitute an Affiliate of the Borrower or its Subsidiaries
in connection with the Credit Documents or its dealings or arrangements relating
thereto.
"AGGREGATE MORTGAGED VESSEL VALUE" shall have the meaning set forth
in Section 9.11.
"AGREEMENT" shall mean this Credit Agreement, as modified,
supplemented, amended, restated, extended, renewed or replaced from time to
time.
<Page>
"APPLICABLE MARGIN" shall mean a percentage per annum equal to, in
the case of (a) Term Loans, 1.50% and (b) Revolving Loans, 1.50%.
"APPLICABLE MINIMUM NET WORTH AMOUNT" shall mean, at any time of
determination thereof, an amount equal to the sum of $166,017,600, plus 50% of
Consolidated Net Income (to the extent positive) for each fiscal quarter of the
Borrower ended after the Effective Date, plus 100% of the Net Cash Proceeds from
any issuance or sale of equity of the Borrower or any of its Subsidiaries after
March 31, 2001 (except, in the case of such Subsidiaries, any sale of such
equity to the Borrower or another Subsidiary permitted hereunder).
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"ASSIGNMENT OF EARNINGS" shall have the meaning provided in Section
5B.03.
"ASSIGNMENT OF INSURANCES" shall have the meaning provided in
Section 5B.03.
"BANKRUPTCY CODE" shall have the meaning provided in Section 10.05.
"BASE RATE" shall mean for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Rate for such day plus 1/2 of 1% per annum.
"BORROWER" shall have the meaning set forth in the first paragraph
of this Agreement.
"BORROWING" shall mean the borrowing of Loans of a single Tranche
from all the Lenders (other than any Lender which has not funded its share of a
Borrowing in accordance with this Agreement) having Commitments of the
respective Tranche on a given date having the same Interest Period. It is
understood that there may be more than one Borrowing outstanding pursuant to a
given Tranche.
"BUSINESS DAY" shall mean any day except Saturday, Sunday and any
day which shall be in New York City or London a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close.
"CAPITALIZED LEASE OBLIGATIONS" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"CASH EQUIVALENTS" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (PROVIDED that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) time deposits and certificates
of deposit of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company having capital, surplus and undivided
profits aggregating
<Page>
in excess of $200,000,000, with maturities of not more than one year from the
date of acquisition by such Person, (iii) repurchase obligations with a term of
not more than 90 days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by Standard &
Poor's Corporation or at least P-1 or the equivalent thereof by Moody's
Investors Service, Inc. and in each case maturing not more than one year after
the date of acquisition by such Person, and (v) investments in money market
funds substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (iv) above.
"CBK" shall mean Christiania Bank og Kreditkasse ASA, New York
Branch.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean (i) the Borrower shall at any time
and for any reason fail to own, directly or indirectly, 100% of the capital
stock or other equity interests of each Subsidiary Guarantor, (ii) the sale,
lease or transfer of all or substantially all of the Borrower's assets to any
Person or group (as such term is used in Section 13(d)(3) of the Exchange Act),
(iii) the liquidation or dissolution of the Borrower, (iv) any Person or group
(as such term is used in Section 13(d)(3) of the Exchange Act) other than one or
more of the Permitted Holders shall at any time become the owner, directly or
indirectly, beneficially or of record, of shares representing more than 30% of
the outstanding voting or economic equity interests of the Borrower or (v) the
replacement of a majority of the directors on the board of directors of the
Borrower over a two-year period from the directors who constituted the board of
directors of the Borrower at the beginning of such period, and such replacement
shall not have been approved by a vote of at least a majority of the board of
directors of the Borrower then still in office who either were members of such
board of directors at the beginning of such period or whose election as a member
of such Board of Directors was previously so approved.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"COLLATERAL" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Earnings and Insurance Collateral, all
Mortgaged Vessels and all cash and Cash Equivalents at any time delivered as
collateral hereunder.
"COLLATERAL AGENT" shall mean the Administrative Agent acting as
Mortgagee or collateral agent for the Secured Creditors pursuant to the Security
Documents.
"COLLATERAL DISPOSITION" shall mean (i) the sale, lease, transfer or
other disposition
<Page>
by the Borrower or any of its Subsidiaries to any Person other than the Borrower
or a Subsidiary Guarantor of any Mortgaged Vessel or (ii) any Event of Loss of
any Mortgaged Vessel.
"COMMITMENT" shall mean any of the commitments of any Lender, I.E.,
including its Term Loan Commitment (if any), and Revolving Loan Commitment (if
any).
"COMMITMENT COMMISSION" shall mean and include any RL Commitment
Commission and any TL Commitment Commission, as applicable.
"CONCENTRATION ACCOUNT" shall have the meaning provided in the
Pledge Agreement.
"CONSOLIDATED CURRENT ASSETS" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries determined in
accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Subsidiaries at such
time determined in accordance with GAAP, minus the current portion of any
long-term Indebtedness of the Borrower and its Subsidiaries to the extent
otherwise included therein.
"CONSOLIDATED EBIT" shall mean, for any period, the Consolidated Net
Income for such period, before interest expense and provision for taxes based on
income and without giving effect to any extraordinary gains or losses or gains
or losses from sales of assets other than inventory sold in the ordinary course
of business.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all amortization of intangibles and
depreciation, in each case that were deducted in arriving at Consolidated EBIT
for such period.
"CONSOLIDATED INDEBTEDNESS" shall mean, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness
(but including in any event the then outstanding principal amount of all Loans,
all Capitalized Lease Obligations and all letters of credit outstanding) of the
Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP; PROVIDED that (i) Indebtedness outstanding pursuant to
trade payables and accrued expenses incurred in the ordinary course of business,
and (ii) guarantees of operating leases assigned to any Credit Party to the
extent such lease is permitted hereunder and such obligation does not exceed
that which would otherwise be attributed to such Person under such operating
lease, shall be excluded in determining Consolidated Indebtedness.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean, for any period,
the ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated
Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, (i) the
total consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period, minus (ii) cash interest income of the Borrower and its
Subsidiaries for
<Page>
such period and the amortization of any deferred financing costs incurred in
connection with the Transaction to the extent otherwise included in the
calculations thereof.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net after tax income of the Borrower and its Subsidiaries
determined in accordance with GAAP.
"CONSOLIDATED NET WORTH" shall mean, with respect to any person, the
Net Worth of such Person and its Subsidiaries determined on a consolidated basis
in accordance with GAAP after appropriate deduction for any minority interests
in Subsidiaries.
"CONSOLIDATED TOTAL CAPITALIZATION" shall mean, at any time of
determination, the sum of Consolidated Indebtedness at such time and
Consolidated Net Worth at such time.
"CONSOLIDATED WORKING CAPITAL RATIO" shall mean, at any time of
determination, the ratio of Consolidated Current Assets to Consolidated Current
Liabilities.
"CONTINGENT OBLIGATION" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; PROVIDED, HOWEVER,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business and any
products warranties extended in the ordinary course of business. The amount of
any Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if the less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"CREDIT DOCUMENTS" shall mean this Agreement, each Note, each
Security Document, the Subsidiaries Guaranty, the Master Vessel and Collateral
Trust Agreement and, after the execution and delivery thereof, each additional
guaranty or additional security document executed pursuant to Section 8.11.
"CREDIT EVENT" shall mean the making of any Loan.
"CREDIT PARTY" shall mean the Borrower and each Subsidiary
Guarantor, and any other Subsidiary which at any time executes and delivers any
Credit Document.
<Page>
"DEBT AGREEMENTS" shall have the meaning provided in Section 5A.05.
"DEFAULT" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DIVIDEND" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or members or authorized or made any other distribution, payment or
delivery of property (other than common stock of such Person) or cash to its
stockholders or members as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or membership interests outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its
capital stock), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for a consideration any shares of any class of the capital stock of, or equity
interests in, such Person outstanding on or after the Effective Date (or any
options or warrants issued by such Person with respect to its capital stock or
other equity interests). Without limiting the foregoing, "Dividends" with
respect to any Person shall also include all payments made or required to be
made by such Person with respect to any stock appreciation rights, plans, equity
incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.
"DOCUMENTS" shall mean the Credit Documents and the Vessel
Acquisition Documents.
"DOLLARS" and the sign "$" shall each mean lawful money of the
United States.
"EARNINGS AND INSURANCE COLLATERAL" shall mean all "Earnings
Collateral" and "Insurance Collateral", as the case may be, as defined in the
respective Assignments of Earnings and the Assignments of Insurances.
"EFFECTIVE DATE" shall have the meaning provided in Section 13.10.
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank,
insurance company, financial institution, fund or other Person which regularly
purchases interests in loans or extensions of credit of the types made pursuant
to this Agreement, any other Person which would constitute a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act as
in effect on the Effective Date or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"EMPLOYMENT AGREEMENTS" shall have the meaning provided in Section
5A.05.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental
<Page>
Law (hereafter, "CLAIMS"), including, without limitation, (a) any and all Claims
by governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief in connection with alleged injury or threat of injury to
health, safety or the environment due to the presence of Hazardous Materials.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of common
law now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on the Borrower or any
of its Subsidiaries, relating to the environment, employee health and safety or
Hazardous Materials, including, without limitation, CERCLA; OPA; the Federal
Water Pollution Control Act, 33 U.S.C. ss. 1251 ET SEQ.; the Hazardous Material
Transportation Act, 49 U.S.C. ss. 1801 ET SEQ.; the Occupational Safety and
Health Act, 29 U.S.C. ss. 651 ET SEQ. (to the extent it regulates occupational
exposure to Hazardous Materials); and any state and local or foreign
counterparts or equivalents, in each case as amended from time to time.
"ENVIRONMENTAL RELEASE" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing or migration into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
"EURODOLLAR RATE" shall mean with respect to each Interest Period
for a Loan, (a) the offered rate (rounded upward to the nearest 1/16 of one
percent) for deposits of Dollars for a period equivalent to such period at or
about 11:00 A.M. (London time) on the second Business Day before the first day
of such period as is displayed on Telerate page 3750 (British Bankers'
Association Interest Settlement Rates) (or such other page as may replace such
page 3750 on such system or on any other system of the information vendor for
the time being designated by the British Bankers' Association to calculate the
BBA Interest Settlement Rate (as defined in the British Bankers' Association's
Recommended Terms and Conditions dated August 1985)), provided that if on such
date no such rate is so displayed, the Eurodollar Rate for such period shall be
the rate quoted to the Administrative Agent as the offered rate for deposits of
Dollars in an amount approximately equal to the amount in relation to which the
Eurodollar Rate is to be determined for a period equivalent to such applicable
Interest Period by prime banks in the London interbank Eurodollar market at or
about 11:00 A.M. (London time) on the second
<Page>
Business Day before the first day of such period, in each case divided (and
rounded upward to the nearest 1/16 of 1%) by (b) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"EVENT OF DEFAULT" shall have the meaning provided in Section 10.
"EVENT OF LOSS" means any of the following events: (x) the actual or
constructive total loss of a Vessel or the agreed or compromised total loss of a
Vessel; or (y) the capture, condemnation, confiscation, requisition, purchase,
seizure or forfeiture of, or any taking of title to, a Vessel. An Event of Loss
shall be deemed to have occurred (i) in the event of an actual loss of a Vessel,
at the time and on the date of such loss or if that is not known at noon
Greenwich Mean Time on the date which such Vessel was last heard from; (ii) in
the event of damage which results in a constructive or compromised or arranged
total loss of a Vessel, at the time and on the date of the event giving rise to
such damage; or (iii) in the case of an event referred to in clause (y) above,
at the time and on the date on which such event is expressed to take effect by
the Person making the same. Notwithstanding the foregoing, if such Vessel shall
have been returned to the Borrower following any event referred to in clause (y)
above prior to the date upon which payment is required to be made under Section
4.02(c) hereof, no Event of Loss shall be deemed to have occurred by reason of
such event.
"EXISTING AGREEMENT" shall have the meaning provided in Section
13.21.
"EXISTING INDEBTEDNESS" shall have the meaning provided in Section
7.21.
"FEDERAL FUNDS RATE" shall mean, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11 a.m. (New York
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary of the Borrower which
is not incorporated, or formed under the laws of, the United States or any State
or territory thereof.
<Page>
"GAAP" shall have the meaning provided in Section 13.07(a).
"HAZARDOUS MATERIALS" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, ureaformaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority under Environmental Laws.
"INDEBTEDNESS" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any property owned by such Person, whether or not such Indebtedness has
been assumed by such Person (to the extent of the value of the respective
property), (iv) the aggregate amount required to be capitalized under leases
under which such Person is the lessee, (v) all obligations of such person to pay
a specified purchase price for goods or services, whether or not delivered or
accepted, I.E., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection Agreement or Other Hedging Agreement or under any similar type of
agreement; PROVIDED that Indebtedness shall in any event not include trade
payables and expenses accrued in the ordinary course of business.
"INITIAL BORROWING DATE" shall mean the date occurring on or after
the Effective Date on which the initial Borrowing of Term Loans hereunder
occurs.
"INTEREST DETERMINATION DATE" shall mean, with respect to any Loan,
the second Business Day prior to the commencement of any Interest Period
relating to such Loan.
"INTEREST PERIOD" shall have the meaning provided in Section 1.08.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate
swap agreement, interest rate cap agreement, interest collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar agreement
or arrangement.
"INVESTMENTS" shall have the meaning provided in Section 9.05.
"LEAD ARRANGER" shall mean Christiania Bank og Kreditkasse ASA, New
York Branch, in its capacity as lead arranger.
"LEASEHOLDS" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
<Page>
"LENDER" shall mean each financial institution listed on Schedule I,
as well as any Person which becomes a "LENDER" hereunder pursuant to 13.04(b).
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) or other failure of a Lender to make available its portion of any
Borrowing required to be made in accordance with the terms of this Agreement as
then in effect or (ii) a Lender having notified in writing the Borrower and/or
the Administrative Agent that it does not intend to comply with its obligations
under Section 1.01(a) or (b).
"LEVERAGE RATIO" shall mean, at any date of determination, the ratio
of Consolidated Indebtedness on such date to Consolidated Total Capitalization
on such date.
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"LOAN" shall mean each Term Loan and each Revolving Loan.
"MANAGEMENT AGREEMENTS" shall have the meaning provided in Section
5A.05.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MASTER VESSEL AND COLLATERAL TRUST AGREEMENT" shall mean the Master
Vessel and Collateral Trust Agreement between the Administrative Agent on behalf
of the Lenders and Christiania Bank og Kreditkasse ASA, New York Branch,
substantially in the form of Exhibit J, as the same may be from time to time
amended, supplemented or otherwise modified.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
the business, property, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower and the Subsidiary Guarantors taken as a whole.
"MATURITY DATE" shall mean, with respect to any Tranche of Loans,
the Term Loan Maturity Date or the Revolving Loan Maturity Date, as the case may
be.
"MORTGAGED VESSELS" shall have the meaning provided in Section
5B.04.
"MORTGAGEE" shall mean the trustee under the Master Vessel and
Collateral Trust Agreement, which, on the Effective Date, shall be CBK.
"MULTIEMPLOYER PLAN" shall mean a Plan which is defined in Section
3(37) of ERISA.
"NET CASH PROCEEDS" shall mean, with respect to any Collateral
Disposition or equity issuance, the aggregate cash payments (including any cash
received by way of deferred
<Page>
payment pursuant to a note receivable issued in connection with such Collateral
Disposition or equity issuance, other than the portion of such deferred payment
constituting interest, but only as and when received) received by the Borrower
from such Collateral Disposition or equity issuance, net of (i) reasonable
transaction costs (including, without limitation, reasonable attorney's fees)
and sales commissions and (ii) the estimated marginal increase in income taxes
and any stamp tax payable by the Borrower or any of its Subsidiaries as a result
of such Collateral Disposition or equity issuance.
"NET WORTH" shall mean, as to any Person, the sum of its capital
stock, capital in excess of par or stated value of shares of its capital stock,
retained earnings and any other account which, in accordance with GAAP,
constitutes stockholders' equity, but excluding any treasury stock.
"NON-DEFAULTING LENDER" shall mean and include each Lender other
than a Defaulting Lender.
"NOTE" shall mean each Term Note and each Revolving Note.
"NOTICE OF BORROWING" shall have the meaning provided in Section
1.03.
"NOTICE OFFICE" shall mean the office of the Administrative Agent
located at 11 West 42nd Street, 7th Floor, New York, NY 10036, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"OBLIGATIONS" shall mean all amounts owing to the Administrative
Agent, the Collateral Agent or any Lender pursuant to the terms of this
Agreement or any other Credit Document.
"OPA" shall mean the Oil Pollution Act of 1990, as amended, 33
U.S.C. ss. 2701 ET SEQ.
"OTHER HEDGING AGREEMENT" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 11 West 42nd Street, 7th Floor, New York, NY 10036, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"PERMITTED ENCUMBRANCE" shall mean easements, rights-of-way,
restrictions, encroachments, exceptions to title and other similar charges or
encumbrances on any Mortgaged Vessel or any other property of the Borrower or
any of its Subsidiaries arising in the ordinary course of business which do not
materially detract from the value of such Mortgaged Vessel or the property
subject thereto.
<Page>
"PERMITTED HOLDERS" shall mean (i) Peter Georgiopoulos and any
corporation or other entity directly controlled by Peter Georgiopoulos and (ii)
Oaktree Capital Management, LLC and any corporation or other entity directly
controlled by Oaktree Capital Management, LLC.
"PERMITTED LIENS" shall have the meaning provided in Section 9.01.
"PERSON" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"PLAN" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or any
ERISA Affiliate, and each such plan for the five-year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or any ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"PLEDGE AGREEMENT" shall have the meaning provided in Section 5A.07.
"PLEDGE AGREEMENT COLLATERAL" shall mean all "Collateral" as defined
in the Pledge Agreement.
"PLEDGED SECURITIES" shall mean "PLEDGED SECURITIES" as defined in
the Pledge Agreement.
"PRIME RATE" shall mean the rate which the Administrative Agent
announces from time to time as its prime lending rate, the Prime Rate to change
when and as such prime lending rate changes. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged to
any customer. The Administrative Agent may make commercial loans or other loans
at rates of interest at, above or below the Prime Rate.
"PROJECTIONS" shall mean the pro forma financial projections of the
Borrower and its Subsidiaries, in form reasonably satisfactory to the
Administrative Agent, meeting the requirements of Section 7.05(d) and covering
each of the fiscal periods of the Borrower ending after the Effective Date and
prior to the Term Loan Maturity Date.
"QUALIFIED PREFERRED STOCK" shall mean any preferred stock so long
as the terms of any such preferred stock (i) do not contain any mandatory put,
redemption, repayment, sinking fund or other similar provision occurring prior
to one year after the Term Loan Maturity Date, (ii) do not require the cash
payment of dividends, (iii) do not contain any covenants other than periodic
reporting requirements and (iv) do not grant the holder thereof any voting
rights except for voting rights on fundamental matters such as mergers,
consolidations, sales or all or substantially all of the assets of the issuer
thereof, or liquidations involving the issuer thereof.
"QUARTERLY PAYMENT DATE" shall mean the last business day of each
March, June, September and December occurring after the Initial Borrowing Date.
<Page>
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 ET SEQ.
"REAL PROPERTY" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"RECAPITALIZATION" shall have the meaning provided in the $300
Million Facility.
"REGISTER" shall have the meaning provided in Section 13.17.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"REGULATION T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"REGULATION U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"REGULATION X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"REPLACED LENDER" shall have the meaning provided in Section 1.12.
"REPLACEMENT LENDER" shall have the meaning provided in Section
1.12.
"REPORTABLE EVENT" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"REQUIRED LENDERS" shall mean Lenders, the sum of whose outstanding
Term Loans and Revolving Loan Commitments (or after the termination thereof,
outstanding Revolving Loans) represent an amount greater than 50% of the sum of
all outstanding Term Loans and the Total Revolving Loan Commitment (or after the
termination thereof, the then total principal amount of outstanding Revolving
Loans at such time).
"REVOLVING LOAN" shall have the meaning provided in Section 1.01(b).
"REVOLVING LOAN COMMITMENT" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I hereto directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted
from time to time as a result of assignments to or from such Lender pursuant to
Section 1.12 or 13.04(b).
"REVOLVING LOAN DRAWDOWN AMOUNT" shall mean, in the case of any
Vessel
<Page>
Acquisition, the amount set forth on Schedule XII opposite the respective vessel
being acquired under the heading "Revolving Loan Drawdown Amount", which amount
represents the maximum amount of Revolving Loans that may be incurred to finance
such Vessel Acquisition.
"REVOLVING LOAN MATURITY DATE" shall mean June 27, 2006.
"REVOLVING NOTE" shall have the meaning provided in Section 1.05(a).
"RL COMMITMENT COMMISSION" shall have the meaning provided in
Section 3.01(b).
"SCHEDULED REPAYMENT DATE" shall have the meaning provided in
Section 4.02(b).
"SCHEDULED REPAYMENTS" shall have the meaning provided in Section
4.02(b).
"SECURED CREDITORS" shall have the meaning assigned that term in the
Security Documents.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITY DOCUMENTS" shall mean each Pledge Agreement, each
Assignment of Earnings, each Assignment of Insurances and each Vessel Mortgage.
"SERVICE AGREEMENTS" shall have the meaning provided in Section
5A.05.
"SHAREHOLDERS' AGREEMENTS" shall have the meaning provided in
Section 5A.05.
"SUBSIDIARIES GUARANTY" shall have the meaning provided in Section
5A.06.
"SUBSIDIARY" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"SUBSIDIARY GUARANTOR" shall mean each direct and indirect
Subsidiary of the Borrower which is party to the Subsidiaries Guaranty, or which
executes a counterpart thereof after the Initial Borrowing Date.
"SYNDICATION AGENT" shall mean Christiania Bank og Kreditkasse ASA,
New York Branch.
"SYNDICATION DATE" shall mean July 25, 2001.
"TAX SHARING AGREEMENT" shall have the meaning provided in Section
5A.05.
<Page>
"TAXES" shall have the meaning provided in Section 4.04.
"TERM LOAN" shall have the meaning provided in Section 1.01(a).
"TERM LOAN BORROWING DATE" shall mean each date on or after the
Initial Borrowing Date and prior to the Term Loan Commitment Termination Date on
which any Vessel Acquisition is consummated.
"TERM LOAN COMMITMENT" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I hereto directly below the column
entitled "Term Loan Commitment," as same may be (x) reduced from time to time
pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time to
time as a result of assignments to or from such Lender pursuant to Section 1.12
or 13.04.
"TERM LOAN COMMITMENT TERMINATION DATE" shall mean the earlier of
(i) the date on which each vessel listed on Schedule III has been acquired
pursuant to a Vessel Acquisition and (ii) September 26, 2001.
"TERM LOAN DRAWDOWN AMOUNT" shall mean, in the case of any Vessel
Acquisition, the amount set forth on Schedule XII opposite the respective vessel
being acquired under the heading "Term Loan Drawdown Amount", which amount
represents the maximum amount of Term Loans that may be incurred to finance such
Vessel Acquisition.
"TERM LOAN MATURITY DATE" shall mean June 27, 2006.
"TERM NOTE" shall have the meaning provided in Section 1.05(a).
"TEST PERIOD" shall mean each period of four consecutive fiscal
quarters then last ended, in each case taken as one accounting period.
"$300 MILLION FACILITY" shall mean the Credit Agreement dated as of
June 12, 2001, among the Borrower, various lenders and CBK, as Administrative
Agent, Syndication Agent and Lead Arranger, providing for aggregate credit
facilities for the Borrower not to exceed, for purposes of this definition,
$300,000,000, as the same may be amended, supplemented, restated or modified
from time to time.
"TL COMMITMENT COMMISSION" shall have the meaning provided in
Section 3.01(a).
"TOTAL COMMITMENTS" shall mean, at any time, the sum of the
Commitments of each of the Lenders.
"TOTAL REVOLVING LOAN COMMITMENT" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Lenders.
"TOTAL TERM LOAN COMMITMENT" shall mean, at any time, the sum of the
Term Loan Commitments of each of the Lenders.
<Page>
"TOTAL UNUTILIZED REVOLVING LOAN COMMITMENT" shall mean, at any
time, an amount equal to the remainder of the then Total Revolving Loan
Commitment, less the aggregate principal amount of Revolving Loans then
outstanding.
"TRANCHE" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being two separate Tranches,
I.E., Term Loans and Revolving Loans.
"TRANSACTION" shall mean the "Transaction" as defined in the $300
Million Facility and shall, for purposes of this Agreement, include the
"Recapitalization" as defined in Annex A to the $300 Million Facility; in each
case as in effect on the Effective Date.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"UNITED STATES" and "U.S." shall each mean the United States of
America.
"UNUTILIZED REVOLVING LOAN COMMITMENT" with respect to any Lender,
at any time, shall mean such Lender's Revolving Loan Commitment at such time
less the aggregate outstanding principal amount of Revolving Loans made by such
Lender.
"VESSEL" shall mean, collectively, all sea going vessels and tankers
owned by the Borrower and its Subsidiaries, and, individually, any of such
vessels.
"VESSEL ACQUISITION" shall mean, in each case, the acquisition by
the Borrower or any Subsidiary Guarantor of any one or more of the vessels
listed on Schedule III.
"VESSEL ACQUISITION DOCUMENTS" shall mean, in the case of any Vessel
Acquisition, the documents governing the terms and conditions of such Vessel
Acquisition.
"VESSEL MORTGAGES" shall have the meaning set forth in Section
5B.04.
"WHOLLY-OWNED SUBSIDIARY" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
SECTION 12. AGENCY PROVISIONS.
<Page>
12.01 APPOINTMENT. The Lenders hereby designate Christiania Bank og
Kreditkasse ASA, New York Branch, as Administrative Agent (for purposes of this
Section 12, the term "ADMINISTRATIVE AGENT" shall include Christiania Bank og
Kreditkasse ASA, New York Branch (and/or any of its affiliates) in its capacity
as Collateral Agent and Mortgagee pursuant to the Security Documents and Trustee
under the Master Vessel and Collateral Trust Agreement, and in its capacity as
Lead Arranger hereunder) to act as specified herein and in the other Credit
Documents. Each Lender hereby irrevocably authorizes, and each holder of any
Note by the acceptance of such Note shall be deemed irrevocably to authorize,
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents, employees or affiliates and, may assign from time to time any
or all of its rights, duties and obligations hereunder and under the Security
Documents and the Master Vessel and Collateral Trust Agreement to any of its
banking affiliates.
12.02 NATURE OF DUTIES. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the Security Documents. Neither the Administrative Agent nor any of its
officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by such Person's
gross negligence or willful misconduct. The duties of the Administrative Agent
shall be mechanical and administrative in nature; the Administrative Agent shall
not have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Administrative Agent any
obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Independently
and without reliance upon the Administrative Agent, each Lender and the holder
of each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower and its
<Page>
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of the
Borrower and its Subsidiaries or the existence or possible existence of any
Default or Event of Default.
12.04 CERTAIN RIGHTS OF THE AGENT. If the Administrative Agent shall
request instructions from the Required Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, the Administrative Agent shall be entitled to refrain from such act or
taking such action unless and until the Administrative Agent shall have received
instructions from the Required Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender or the holder of any Note shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Lenders.
12.05 RELIANCE. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by the Administrative Agent.
12.06 INDEMNIFICATION. To the extent the Administrative Agent is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Lenders (without regard to the
existence of any Defaulting Lenders), for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Administrative Agent in performing its
respective duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
PROVIDED that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
12.07 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders," "Required Lenders," "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with any Credit Party or any Affiliate of
any Credit Party as if it were not performing the duties specified herein, and
may accept fees and other consideration from the Borrower or any other Credit
Party for services in connection with this Agreement and otherwise
<Page>
without having to account for the same to the Lenders.
12.08 HOLDERS. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 RESIGNATION BY THE ADMINISTRATIVE AGENT. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower (which shall not be unreasonably withheld or delayed),
shall then appoint a commercial bank or trust company with capital and surplus
of not less than $500,000,000 as successor Administrative Agent who shall serve
as Administrative Agent hereunder or thereunder until such time, if any, as the
Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 25th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.
SECTION 13. MISCELLANEOUS.
13.01 PAYMENT OF EXPENSES, ETC. The Borrower agrees that it shall:
(i) whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case LLP, Holland & Knight LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent in connection with its syndication efforts with respect to
this Agreement and of the Administrative Agent and each of the Lenders in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein
<Page>
(including, without limitation, the reasonable fees and disbursements of counsel
(including in-house counsel) for the Administrative Agent and for each of the
Lenders); (ii) pay and hold each of the Lenders harmless from and against any
and all present and future stamp, excise and other similar taxes with respect to
the foregoing matters and save each of the Lenders harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Lender) to pay such taxes; and
(iii) indemnify the Administrative Agent, the Collateral Agent, the Mortgagee
under each Vessel Mortgage, the Trustee under the Master Vessel and Collateral
Trust Agreement, the Lead Arranger and each Lender, and each of their respective
officers, directors, trustees, employees, representatives and agents from and
hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, (a) any investigation, litigation or
other proceeding (whether or not the Administrative Agent or any Lender is a
party thereto) related to the entering into and/or performance of this Agreement
or any other Credit Document or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein (including, without
limitation, any Vessel Acquisition), or in any other Credit Document or the
exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged presence of Hazardous Materials
on any Vessel or in the air, surface water or groundwater or on the surface or
subsurface of any property at any time owned or operated by the Borrower or any
of its Subsidiaries, the generation, storage, transportation, handling, disposal
or Environmental Release of Hazardous Materials at any location, whether or not
owned or operated by the Borrower or any of its Subsidiaries, the non-compliance
of any Vessel or property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable
to any Vessel or property, or any Environmental Claim asserted against the
Borrower, any of its Subsidiaries or any Vessel or property at any time owned or
operated by the Borrower or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages,
penalties, actions, judgments, suits, costs, disbursements or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified). To the extent that the undertaking to indemnify, pay
or hold harmless the Administrative Agent or any Lender set forth in the
preceding sentence may be unenforceable because it violates any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
13.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any
Subsidiary or the Borrower or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
such Lender (including, without limitation, by
<Page>
branches and agencies of such Lender wherever located) to or for the credit or
the account of the Borrower or any Subsidiary but in any event excluding assets
held in trust for any such Person against and on account of the Obligations and
liabilities of the Borrower or such Subsidiary, as applicable, to such Lender
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations purchased by such Lender
pursuant to Section 13.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Lender shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
13.03 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telexed, telegraphic or telecopier communication) and mailed,
telexed, telecopied or delivered: if to the Borrower, at the Borrower's address
specified under its signature below; if to any Lender, at its address specified
opposite its name on Schedule II below; and if to the Administrative Agent, at
its Notice Office; or, as to any other Credit Party, at such other address as
shall be designated by such party in a written notice to the other parties
hereto and, as to each Lender, at such other address as shall be designated by
such Lender in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall, (i) when mailed, be effective three
Business Days after being deposited in the mails, prepaid and properly addressed
for delivery, (ii) when sent by overnight courier, be effective one Business Day
after delivery to the overnight courier prepaid and properly addressed for
delivery on such next Business Day, or (iii) when sent by telex or telecopier,
be effective when sent by telex or telecopier, except that notices and
communications to the Administrative Agent shall not be effective until received
by the Administrative Agent.
13.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; PROVIDED, HOWEVER, that (i) no Credit Party may
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of the Lenders, (ii)
although any Lender may transfer, assign or grant participations in its rights
hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and
may not transfer or assign all or any portion of its Commitments hereunder
except as provided in Section 13.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a "Lender" hereunder and
(iii) no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (x) extend the final scheduled maturity of any Loan or Note in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Commitment Commission thereon (except (m) in
connection with a waiver of applicability of any post-default increase in
interest rates and (n) that any amendment or modification to the financial
definitions in this Agreement shall not constitute a reduction in the rate of
interest for purposes of this clause (x)) or reduce the principal amount
thereof, or increase the amount of the participant's participation over the
amount thereof then in effect (it being understood that a waiver of any Default
or Event of Default or of a mandatory reduction in the Total Commitments shall
not constitute a change in the terms of such participation, and that an increase
in any Commitment or Loan shall be permitted without the
<Page>
consent of any participant if the participant's participation is not increased
as a result thereof), (y) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement or (z) release all or
substantially all of the Collateral under all of the Security Documents (except
as expressly provided in the Credit Documents) securing the Loans hereunder in
which such participant is participating. In the case of any such participation,
the participant shall not have any rights under this Agreement or any of the
other Credit Documents (the participant's rights against such Lender in respect
of such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together with
one or more other Lenders) may (x) assign all or a portion of its Revolving Loan
Commitment (and related outstanding Obligations hereunder), Term Loan Commitment
and/or its outstanding Term Loans to its (i) parent company and/or any affiliate
of such Lender which is at least 50% owned by such Lender or its parent company
or (ii) in the case of any Lender that is a fund that invests in bank loans, any
other fund that invests in bank loans and is managed or advised by the same
investment advisor of such Lender or by an Affiliate of such investment advisor
or (iii) to one or more Lenders or (y) assign with the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed) all, or if less
than all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Lender or assigning Lenders, of such Revolving Loan Commitments, Term
Loan Commitments and outstanding principal amount of Term Loans hereunder to one
or more Eligible Transferees (treating any fund that invests in bank loans and
any other fund that invests in bank loans and is managed or advised by the same
investment advisor of such fund or by an Affiliate of such investment advisor as
a single Eligible Transferee), each of which assignees shall become a party to
this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, PROVIDED that (i) at such time Schedule I shall be deemed modified to
reflect the Commitments (and/or outstanding Term Loans, as the case may be) of
such new Lender and of the existing Lenders, (ii) new Notes will be issued, at
the Borrower's expense, to such new Lender and to the assigning Lender upon the
request of such new Lender or assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (and/or
outstanding Term Loans, as the case may be), (iii) the consent of the
Administrative Agent shall be required in connection with any assignment
pursuant to preceding clause (y) (which consent shall not be unreasonably
withheld or delayed), and (iv) the Administrative Agent shall receive at the
time of each such assignment, from the assigning or assignee Lender, the payment
of a non-refundable assignment fee of $3,000. To the extent of any assignment
pursuant to this Section 13.04(b), the assigning Lender shall be relieved of its
obligations hereunder with respect to its assigned Commitments (it being
understood that the indemnification provisions under this Agreement (including,
without limitation, Sections 1.09, 1.10, 4.04, 13.01 and 13.06) shall survive as
to such assigning Lender). To the extent that an assignment of all or any
portion of a Lender's Commitments and related outstanding Obligations pursuant
to Section 1.12 or this Section 13.04(b) would, at the time of such assignment,
result in increased costs under Section 1.09, 1.10 or 4.04 from those being
charged by the respective assigning Lender prior to such assignment, then the
Borrower shall not be obligated to pay such
<Page>
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank and, with the
consent of the Administrative Agent, any Lender which is a fund may pledge all
or any portion of its Notes or Loans to a trustee for the benefit of investors
and in support of its obligation to such investors.
13.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Administrative Agent or any Lender or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Administrative Agent or any Lender or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not exclusive
of any rights, powers or remedies which the Administrative Agent or any Lender
or the holder of any Note would otherwise have. No notice to or demand on any
Credit Party in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or any Lender or the holder of any Note to
any other or further action in any circumstances without notice or demand.
13.06 PAYMENTS PRO RATA. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its PRO RATA share of any such
payment) PRO RATA based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans or Commitment Commission, of a sum which with respect to the
related sum or sums received by other Lenders is in a greater proportion than
the total of such Obligation then owed and due to such Lender bears to the total
of such Obligation then owed and due to all of the Lenders immediately prior to
such receipt, then such Lender receiving such excess payment shall purchase for
cash without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Credit Party to such Lenders in such amount as
shall result in a proportional participation by all the Lenders in such amount;
PROVIDED that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of
<Page>
the preceding Sections 13.06(a) and (b) shall be subject to the express
provisions of this Agreement which require, or permit, differing payments to be
made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders). In addition, all computations determining compliance with Sections
9.07 through 9.10, inclusive, shall utilize accounting principles and policies
in conformity with those used to prepare the historical financial statements
delivered to the Lenders for the first fiscal year of the Borrower ended after
the Initial Borrowing Date pursuant to Section 8.01(b) (which principles and
policies shall be generally consistent with those used to prepare the historical
financial statements delivered to the Lenders pursuant to Section 7.05(a)) (with
the foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called "GAAP"). Unless otherwise noted, all references in this
Agreement to "generally accepted accounting principles" shall mean generally
accepted accounting principles as in effect in the United States.
(b) All computations of interest and Commitment Commission hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or Commitment Commission are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE VESSEL MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT
OF LAWS RULES (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS LAW).
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN
THE CITY OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT
UNDER THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE
<Page>
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION. IF AT ANY
TIME DURING WHICH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT REMAINS IN EFFECT,
THE BORROWER DOES NOT MAINTAIN A REGULARLY FUNCTIONING OFFICE IN NEW YORK CITY,
IT WILL DULY APPOINT, AND AT ALL TIMES MAINTAIN, AN AGENT IN NEW YORK CITY FOR
THE SERVICE OF PROCESS OR SUMMONS, AND WILL PROVIDE TO THE ADMINISTRATIVE AGENT
AND THE LENDERS WRITTEN NOTICE OF THE IDENTITY AND ADDRESS OF SUCH AGENT FOR
SERVICE OF PROCESS OR SUMMONS; PROVIDED THAT ANY FAILURE ON THE PART OF THE
BORROWER TO COMPLY WITH THE FOREGOING PROVISIONS OF THIS SENTENCE SHALL NOT IN
ANY WAY PREJUDICE OR LIMIT THE SERVICE OF PROCESS OR SUMMONS IN ANY OTHER MANNER
DESCRIBED ABOVE IN THIS SECTION 13.08 OR OTHERWISE PERMITTED BY LAW.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "EFFECTIVE DATE") on which the Borrower, the Administrative Agent and
each of the Lenders who are initially parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent or, in the case of the Lenders,
shall have given to the Administrative Agent telephonic (confirmed in writing),
written or facsimile notice (actually received) at such office that the same has
been signed and mailed to it. The Administrative Agent will give the Borrower
and each Lender prompt written notice of the occurrence of the Effective Date.
<Page>
13.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 AMENDMENT OR WAIVER; ETC. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, PROVIDED that no such change, waiver, discharge or termination
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note, extend the timing for
or reduce the principal amount of any Scheduled Repayment, or reduce the rate or
extend the time of payment of interest on any Loan or Note or Commitment
Commission (except (x) in connection with the waiver of applicability of any
post-default increase in interest rates and (y) any amendment or modification to
the financial definitions in this Agreement shall not constitute a reduction in
the rate of interest for purposes of this clause (i)), or reduce the principal
amount thereof (except to the extent repaid in cash), (ii) release all or
substantially all of the Collateral (except as expressly provided in the Credit
Documents) under all the Security Documents, (iii) amend, modify or waive any
provision of this Section 13.12, (iv) reduce the percentage specified in the
definition of Required Lenders (it being understood that, with the consent of
the Required Lenders, additional extensions of credit pursuant to this Agreement
may be included in the determination of the Required Lenders on substantially
the same basis as the extensions of Term Loans and Commitments are included on
the Effective Date) or (v) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement; PROVIDED FURTHER,
that no such change, waiver, discharge or termination shall (w) increase the
Commitments of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitments shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase in the Commitment of
such Lender), (x) without the consent of the Administrative Agent, amend, modify
or waive any provision of Section 12 as same applies to the Administrative Agent
or any other provision as same relates to the rights or obligations of the
Administrative Agent, (y) without the consent of the Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent or (z) without the consent of the Required Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below, alter the required
application of any prepayments or repayments (or commitment reductions), as
between the various Tranches, pursuant to Section 4.01 or 4.02 (excluding
Section 4.02(b)) (although (A) the Required Lenders may waive, in whole or in
part, any such prepayment, repayment or commitment reduction (other than a
Scheduled Repayment), so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered and (B) if additional Tranches of Term
Loans are extended after the Initial Borrowing Date with the consent of the
Required Lenders as required above, such Tranches may be included on a pro rata
basis in the various prepayments or repayments required pursuant to Sections
4.01 and 4.02 (excluding
<Page>
Section 4.02(b) and any section providing Scheduled Repayments for any new
Tranche of Term Loans).
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders (or,
at the option of the Borrower if the respective Lender's consent is required
with respect to less than all Tranches of Loans (or related Commitments), to
replace only the respective Tranche or Tranches of Commitments and/or Loans of
the respective non-consenting Lender which gave rise to the need to obtain such
Lender's individual consent) with one or more Replacement Lenders pursuant to
Section 1.12 so long as at the time of such replacement, each such Replacement
Lender consents to the proposed change, waiver, discharge or termination or (B)
terminate such non-consenting Lender's Revolving Loan Commitment (if such
Lender's consent is required as a result of its Revolving Loan Commitment),
and/or repay outstanding Term Loans and terminate any outstanding Term Loan
Commitments of such Lender which gave rise to the need to obtain such Lender's
consent, in accordance with Sections 3.02(b) and/or 4.01(iv), PROVIDED that,
unless the Commitments are terminated, and Loans repaid, pursuant to preceding
clause (B) are immediately replaced in full at such time through the addition of
new Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Required Lenders
(determined before giving effect to the proposed action) shall specifically
consent thereto, PROVIDED FURTHER, that in any event the Borrower shall not have
the right to replace a Lender, terminate its Revolving Loan Commitment or Term
Loan Commitment or repay its Loans solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to Section 13.12(a).
13.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Sections 1.09, 1.10, 4.04, 13.01 and 13.06 shall, subject to
Section 13.15 (to the extent applicable), survive the execution, delivery and
termination of this Agreement and the Notes and the making and repayment of the
Loans.
13.14 DOMICILE OF LOANS. Each Lender may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Lender. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 13.14 would, at the time of
such transfer, result in increased costs under Section 1.09, 1.10 or 4.04 from
those being charged by the respective Lender prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 LIMITATION ON ADDITIONAL AMOUNTS, ETC. Notwithstanding
anything to the contrary contained in Sections 1.09, 1.10 or 4.04 of this
Agreement, unless a Lender gives notice
<Page>
to the Borrower that it is obligated to pay an amount under any such Section
within one year after the later of (x) the date the Lender incurs the respective
increased costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital or (y) the date such
Lender has actual knowledge of its incurrence of the respective increased costs,
Taxes, loss, expense or liability, reductions in amounts received or receivable
or reduction in return on capital, then such Lender shall only be entitled to be
compensated for such amount by the Borrower pursuant to said Section 1.09, 1.10
or 4.04, as the case may be, to the extent the costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital are incurred or suffered on or after the date which occurs one year
prior to such Lender giving notice to the Borrower that it is obligated to pay
the respective amounts pursuant to said Section 1.09, 1.10 or 4.04, as the case
may be. This Section 13.15 shall have no applicability to any Section of this
Agreement other than said Sections 1.09, 1.10 and 4.04.
13.16 CONFIDENTIALITY. (a) Subject to the provisions of clause (b)
of this Section 13.16, each Lender agrees that it will use its best efforts not
to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Lender if the Lender or
such Lender's holding or parent company or board of trustees in its sole
discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender) any information with respect to
the Borrower or any of its Subsidiaries which is now or in the future furnished
pursuant to this Agreement or any other Credit Document, PROVIDED that any
Lender may disclose any such information (a) as has become generally available
to the public other than by virtue of a breach of this Section 13.16(a) by the
respective Lender, (b) as may be required in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Lender or to the Federal Reserve Board or the
Federal Deposit Insurance Corporation or similar organizations (whether in the
United States or elsewhere) or their successors, (c) as may be required in
respect to any summons or subpoena or in connection with any litigation, (d) in
order to comply with any law, order, regulation or ruling applicable to such
Lender, (e) to the Administrative Agent or the Collateral Agent and (f) to any
prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or any
interest therein by such Lender, PROVIDED that such prospective transferee
expressly agrees to be bound by the confidentiality provisions contained in this
Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower or its Subsidiaries),
provided such Persons shall be subject to the provisions of this Section 13.16
to the same extent as such Lender.
13.17 REGISTER. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register (the "REGISTER") on which it will record the
Commitments from time to time of each of the Lenders, the Loans made by each of
the Lenders and each repayment and prepayment in respect of the principal amount
of the Loans of each Lender. Failure to make any such recordation, or any error
in such recordation shall not affect the Borrower's obligations in respect of
such
<Page>
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 13.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17, except
to the extent caused by the Administrative Agent's own gross negligence or
willful misconduct.
13.18 JUDGMENT CURRENCY. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from the Borrower hereunder or
under any of the Notes in the currency expressed to be payable herein or under
the Notes (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's New York office on the
Business Day preceding that on which final judgment is given. The obligations of
the Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Administrative Agent (as
the case may be) of any sum adjudged to be so due in such other currency such
Lender or the Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase the specified currency with such other
currency; if the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, the Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds the sum originally due to any Lender or the Administrative Agent, as the
case may be, in the specified currency, such Lender or the Administrative Agent,
as the case may be, agrees to remit such excess to the Borrower.
13.19 LANGUAGE. All correspondence, including, without limitation,
all notices, reports and/or certificates, delivered by any Credit Party to the
Administrative Agent, the Collateral Agent or any Lender shall, unless otherwise
agreed by the respective recipients thereof, be submitted in the English
language or, to the extent the original of such document is not in the English
language, such document shall be delivered with a certified English translation
thereof.
<Page>
13.20 WAIVER OF IMMUNITY. The Borrower, in respect of itself, each
other Credit Party, its and their process agents, and its and their properties
and revenues, hereby irrevocably agrees that, to the extent that the Borrower,
any other Credit Party or any of its or their properties has or may hereafter
acquire any right of immunity from any legal proceedings, whether in the United
States, the Republic of the Marshall Islands, the Republic of Liberia or
elsewhere, to enforce or collect upon the Obligations of the Borrower or any
other Credit Party related to or arising from the transactions contemplated by
any of the Credit Documents, including, without limitation, immunity from
service of process, immunity from jurisdiction or judgment of any court or
tribunal, immunity from execution of a judgment, and immunity of any of its
property from attachment prior to any entry of judgment, or from attachment in
aid of execution upon a judgment, the Borrower, for itself and on behalf of the
other Credit Parties, hereby expressly waives, to the fullest extent permissible
under applicable law, any such immunity, and agrees not to assert any such right
or claim in any such proceeding, whether in the United States, the Republic of
the Marshall Islands, the Republic of Liberia, or elsewhere.
* * *
<Page>
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
GENERAL MARITIME CORPORATION,
as Borrower
By /s/ James C. Christodoulou
--------------------------
Title: Vice President, Chief Financial
Officer & Secretary
Address: 35 West 56th Street, New York, NY 10019
Telephone: (212) 763-5600
Facsimile: (212) 763-5603
With a copy to:
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, NY 10022
Attention: Thomas E. Molner, Esq.
Telephone: (212) 715-9100
Facsimile: (212) 715-8000
CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH,
Individually and as Administrative Agent
By /s/ Hans Chr. Kjelsrud
-----------------------
Title: Senior Vice President
By /s/ Martin Lunder
------------------
Title: Senior Vice President
HAMBURGISCHE LANDESBANK
GIROZENTRALE
By /s/ Joachim Brandes
--------------------
Title: Senior Vice President
By /s/ Uta Urbaniak
-----------------
Title: Assistant Vice President
<Page>
SCHEDULE I
COMMITMENTS
<Table>
<Caption>
Term Revolving
Lender Loan Commitment Loan Commitment Totals
- ------ --------------- --------------- ------
Christiania Bank og Kreditkasse, ASA,
New York Branch $ 57,500,000 $25,000,000 $ 82,500,000
Hamburgische Landesbank-Girozentrale $ 57,500,000 $25,000,000 $ 82,500,000
Totals $115,000,000 $50,000,000 $165,000,000
============ =========== ============
</Table>
<Page>
SCHEDULE XII
LENDER ADDRESSES
CHRISTIANIA BANK OG KREDITKASSE, LEAD ARRANGER
ASA, NEW YORK BRANCH
11 West 42nd Street, 7th Floor
New York, NY 10036
Attn: Mr. Hans Chr. Kjelsrud
Telephone: 212-827-4814
Facsimile: 212-827-4888
HAMBURGISCHE LANDESBANK CO-ARRANGER
GIROZENTRALE
Gerhart-Hauptmann-Platz 50
20095 Hamburg, Germany
Attn: Ms. Uta Urbaniak
Telephone: 49-40-3333-1769
Facsimile: 49-40-3333-3069
<Page>
MORTGAGED VESSELS
<Table>
<Caption>
VESSEL
VESSEL NAME VESSEL OWNER ID NUMBER REGISTRY
----------- ------------ --------- --------
Genmar Spirit Genmar Spirit Ltd. 9516 Republic of Liberia
</Table>
<Page>
SCHEDULE IV
EXISTING LIENS
<Table>
<Caption>
- ----------------------------------------------------------------------------------------------------------------------------
Debtor Secured Party File Number File Date Form Jurisdiction Collateral
- ----------------------------------------------------------------------------------------------------------------------------
None
</Table>
<Page>
SCHEDULE V
INDEBTEDNESS
<Table>
<Caption>
- -----------------------------------------------------------------------------------------------------------
Governing Aggregate Principal
Borrower(s) Lender(s) Agreement Amount Guarantor(s)
- -----------------------------------------------------------------------------------------------------------
None
</Table>
<Page>
SCHEDULE VI
INSURANCE
See Attached
<Page>
SCHEDULE VII
ERISA
NONE
<Page>
SCHEDULE VIII
SUBSIDIARIES
LP - Limited Partner
MGP - Managing General Partner
AGP - Administrative General Partner
<Table>
<Caption>
- ------------------------------------------------------------------------------------------------------------------
PERCENT(%) JURISDICTION OF
NAME OF SUBSIDIARY DIRECT OWNER(S) OWNERSHIP ORGANIZATION
- ------------------------------------------------------------------------------------------------------------------
GMC Administration Ltd. General Maritime Corporation 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Ajax Limited Partnership General Maritime Corporation LP 98.3906% Cayman Islands
Genmar Ajax Corporation MGP 1.607%
GMC Administration Ltd. AGP .0024%
- ------------------------------------------------------------------------------------------------------------------
Genmar Ajax Corporation General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Agamemnon Limited Ajax Limited Partnership 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Ajax Limited Ajax Limited Partnership 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Constantine Limited Ajax Limited Partnership 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Minotaur Limited Ajax Limited Partnership 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Ajax II, L.P. General Maritime Corporation LP 96.9057% Cayman Islands
Genmar Ajax II Corporation MGP 3.083%
GMC Administration Ltd. AGP .0113%
- ------------------------------------------------------------------------------------------------------------------
Genmar Ajax II Corporation General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Gabriel Ltd. Ajax II, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Macedon Ltd. Ajax II, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Spartiate Ltd. Ajax II, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Zoe Ltd. Ajax II, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Boss, L.P. General Maritime Corporation LP 99.1782% Cayman Islands
Genmar Boss Corporation MGP .812%
GMC Administration Ltd. AGP .0098%
- ------------------------------------------------------------------------------------------------------------------
Genmar Boss Corporation General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Boss Ltd. Boss, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Stavanger Sun Ltd. Boss, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
<Table>
<Caption>
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
General Maritime I, L.P. General Maritime Corporation LP 99.0045% Cayman Islands
Genmar Maritime I Corporation MGP .986%
GMC Administration Ltd. AGP .0095%
- ------------------------------------------------------------------------------------------------------------------
Republic of
Genmar Maritime I Corporation General Maritime Corporation 100% Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Alta Ltd. General Maritime I, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
General Maritime II, L.P. General Maritime Corporation LP 99.0039% Cayman Islands
Genmar Maritime II Corporation MGP .984%
GMC Administration Ltd. AGP .0121%
- ------------------------------------------------------------------------------------------------------------------
Genmar Maritime II Corporation General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Nord Ltd. General Maritime II, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Harriet, L.P. General Maritime Corporation LP 98.994% Cayman Islands
Genmar Harriet Corporation MGP .996%
GMC Administration Ltd. AGP .010%
- ------------------------------------------------------------------------------------------------------------------
Genmar Harriet Corporation General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Harriet Ltd. Harriet, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Pacific Tankship, L.P. General Maritime Corporation LP 99.0043% Cayman Islands
Genmar Pacific Corporation MGP .984%
GMC Administration Ltd. AGP .0117%
- ------------------------------------------------------------------------------------------------------------------
Genmar Pacific Corporation General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Pacific Tankship Ltd. Pacific Tankship, L.P. 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Alexandra Ltd. General Maritime Corporation 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Hector Ltd. General Maritime Corporation 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Pericles Ltd. General Maritime Corporation 100% Cayman Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Kentucky Ltd General Maritime Corporation 99% Republic of Malta
Genmar Malta Ltd. 1%
- ------------------------------------------------------------------------------------------------------------------
Genmar West Virginia Ltd General Maritime Corporation 99% Republic of Malta
Genmar Malta Ltd. 1%
- ------------------------------------------------------------------------------------------------------------------
Republic of
Genmar Corporation General Maritime Corporation 100% Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
United Overseas Tankers Ltd. General Maritime Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genmar Malta Ltd. General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Prince Ltd. General Maritime Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Champion Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genmar Spirit Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genmar Star Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genmar Trust Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
<Table>
<Caption>
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
Genmar Challenger Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genamr Endurance Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genmar Trader Ltd. Genmar Corporation 100% Republic of Liberia
- ------------------------------------------------------------------------------------------------------------------
Genmar Leonidas Ltd. Genmar Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
Genmar Nestor Ltd. Genmar Corporation 100% Republic of
Marshall Islands
- ------------------------------------------------------------------------------------------------------------------
</Table>
<Page>
SCHEDULE IX
CAPITALIZATION
The Borrower has entered into the following agreements granting options to
purchase Common Stock of the Borrower:
1. An agreement between the Borrower and Peter C. Georgiopolous, dated as of
June 12, 2001, granting Mr. Georgiopolous an option to purchase 350,000
shares of Borrower's Common Stock, pursuant to the General Maritime
Corporation 2001 Stock Incentive Plan.
2. An agreement between the Borrower and John P. Tavlarios, dated as of June
12, 2001, granting Mr. Tavlarios an option to purchase 240,000 shares of
Borrower's Common Stock, pursuant to the General Maritime Corporation 2001
Stock Incentive Plan.
3. An agreement between the Borrower and James C. Christodoulou, dated as of
June 12, 2001, granting Mr. Christodoulou an option to purchase 80,000
shares of Borrower's Common Stock, pursuant to the General Maritime
Corporation 2001 Stock Incentive Plan.
4. An agreement between the Borrower and John C. Georgiopolous, dated as of
June 12, 2001, granting Mr. Georgiopolous an option to purchase 80,000
shares of Borrower's Common Stock, pursuant to the General Maritime
Corporation 2001 Stock Incentive Plan.
5. An agreement between the Borrower and Sir Peter G. Cazalet, dated as of
June 12, 2001, granting Mr. Cazalet an option to purchase 2,000 shares of
Borrower's Common Stock, pursuant to the General Maritime Corporation 2001
Stock Incentive Plan.
6. An agreement between the Borrower and William J. Crabtree, dated as of
June 12, 2001, granting Mr. Crabtree an option to purchase 2,000 shares of
Borrower's Common Stock, pursuant to the General Maritime Corporation 2001
Stock Incentive Plan.
7. An agreement between the Borrower and Rex. W. Harrington, dated as of June
12, 2001, granting Mr. Harrington an option to purchase 2,000 shares of
Borrower's Common Stock, pursuant to the General Maritime Corporation 2001
Stock Incentive Plan.
8. An agreement between the Borrower and Stephen Kaplan, dated as of June 12,
2001, granting Mr. Kaplan an option to purchase 2,000 shares of Borrower's
Common Stock, pursuant to the General Maritime Corporation 2001 Stock
Incentive Plan.
9. An agreement between the Borrower and Peter S. Shaerf, dated as of June
12, 2001, granting Mr. Shaerf an option to purchase 2,000 shares of
Borrower's Common Stock, pursuant to the General Maritime Corporation 2001
Stock Incentive Plan.
10. In addition, the Borrower has entered into agreements with several
employees of the Borrower other than the Borrower's executive officers
granting such employees options to purchase an aggregate of 100,000 shares
of Common Stock pursuant to the General Maritime Corporation 2001 Stock
Incentive Plan.
<Page>
SCHEDULE X
APPROVED CLASSIFICATION SOCIETIES
American Bureau of Shipping
Nippon Kaijai Kyokia
Germanischer Lloyd
Lloyd's Register of Shipping
Bureau Veritas
Det Norske Veritas
<Page>
SCHEDULE XI
EXISTING INVESTMENTS
NONE
<Page>
SCHEDULE XII
DRAWDOWN AMOUNTS
<Table>
<Caption>
TERM LOAN REVOLVING LOAN
VESSEL PURCHASE PRICE DRAWDOWN AMOUNT DRAWDOWN AMOUNT
------ -------------- --------------- ---------------
Genmar Champion (Ex SCF Champion) $31,210,000 $13,467,545 $5,855,455
Genmar Spirit (Ex SCF Spirit) $31,210,000 $13,467,545 $5,855,455
Genmar Star (Ex SCF Star) $31,210,000 $13,467,545 $5,855,455
Genmar Trust (Ex SCF Trust) $29,220,000 $13,467,545 $5,855,455
Genmar Challenger (Ex SCF Challenger) $29,220,000 $12,608,879 $5,482,121
Genmar Endurance (Ex SCF Endurance) $29,220,000 $12,608,879 $5,482,121
Genmar Trader (Ex SCF Trader) $29,220,000 $12,608,879 $5,482,121
Genmar Leonidas (Ex Anella) $27,500,000 $11,866,606 $5,159,394
Genmar Nestor (Ex Anja) $26,500,000 $11,436,576 $4,972,424
</Table>