Common use of Pursuant to Section 11 Clause in Contracts

Pursuant to Section 11. 01 of the Guarantee, the undersigned hereby: (a) agrees with the Beneficiaries that this Joinder Agreement may be attached to the Guarantee and that by the execution and delivery hereof, the undersigned becomes a Guarantor under the Guarantee for all purposes and agrees to be bound by all of the terms thereof, in each case as of the date hereof; provided that the undersigned shall not be bound by Section 11.03 and Section 11.05 of the Guarantee, if and only if, and so long as, the undersigned is not an Affiliate of Carlyle Partners III, L.P.; (b) represents and warrants, as of the date hereof, to the Beneficiaries that each of the representations and warranties set forth in Sections 9.01, 9.02, 9.03, 9.04 and 9.06 of the Guarantee (provided, that, with respect to the undersigned, in the case of the representations and warranties set forth in Section 9.06, the reference therein to “Closing Date” shall mean the date hereof) is true and correct with respect to the undersigned as of the date hereof both immediately before and after giving effect to the execution and delivery of this Joinder Agreement; (c) represents and warrants to the Beneficiaries, as of the date hereof, that (x) no Tier 1 Default exists, (y) no Tier 2 Event of Default with respect to any of the Transferred Vessels shall have occurred and be continuing or shall result from the Merger and (z) no Guarantor shall have Knowledge that any event or circumstance that constitutes a Tier 2 Default has occurred and is continuing or shall result from the Merger; provided, however, that for purposes of applying clause (z) of this Section l(c) to a Change of Control Transaction (which the Merger constitutes), the reference to $2,000,000 in Section 14.01(b)(4) shall be deemed to be a reference to $5,000,000; and (d) without limiting the generality of clause (a) above, assumes and agrees to irrevocably and unconditionally guarantee in accordance with the Guarantee the due and punctual payment, performance and observance in full of all obligations, covenants and agreements contained in the Guarantee when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including obligations that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)).

Pursuant to Section 11. 01 of the Guarantee, the undersigned hereby: (a) agrees with the Beneficiaries that this Joinder Agreement may be attached to the Guarantee and that by the execution and delivery hereof, the undersigned becomes a Guarantor under the Guarantee for all purposes and agrees to be bound by all of the terms thereof, in each case as of the date hereof; provided that the undersigned shall not be bound by Section 11.03 and Section 11.05 of the Guarantee, if and only if, and so long as, the undersigned is not an Affiliate of Carlyle Partners III, L.P.; (b) represents and warrants, as of the date hereof, to the Beneficiaries that each of the representations and warranties set forth in Sections 9.01, 9.02, 9.03, 9.04 and 9.06 of the Guarantee (provided, that, with respect to the undersigned, in the case of the representations and warranties set forth in Section 9.06, the reference therein to “Closing Date” shall mean the date hereof) is true and correct with respect to the undersigned as of the date hereof both immediately before and after giving effect to the execution and delivery of this Joinder Agreement; (c) represents and warrants to the Beneficiaries, as of the date hereof, that (x) no Tier 1 Default exists, (y) no Tier 2 Event of Default with respect to any of the Transferred Vessels shall have occurred and be continuing or shall result from the Merger and (z) no Guarantor shall have Knowledge that any event or circumstance that constitutes a Tier 2 Default has occurred and is continuing or shall result from the Merger; provided, however, that for purposes of applying clause (z) of this Section l(c1(c) to a Change of Control Transaction (which the Merger constitutes), the reference to $2,000,000 in Section 14.01(b)(4) shall be deemed to be a reference to $5,000,000; and (d) without limiting the generality of clause (a) above, assumes and agrees to irrevocably and unconditionally guarantee in accordance with the Guarantee the due and punctual payment, performance and observance in full of all obligations, covenants and agreements contained in the Guarantee when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including obligations that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)).