Date: as of January12, 2010 ADIRONDACK SHIPPING LLC as Owner FAIRFAX SHIPPING CORP. as Charterer TBS INTERNATIONAL LIMITED as Original Guarantor -and- TBS HOLDINGS LIMITED and TBS INTERANTIONAL PUBLIC LIMITED COMPANY as Additional Guarantors FOURTH...
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.7
Date: as
of January12, 2010
ADIRONDACK
SHIPPING LLC
as
Owner
FAIRFAX
SHIPPING CORP.
as
Charterer
TBS
INTERNATIONAL LIMITED
as
Original Guarantor
-and-
TBS
HOLDINGS LIMITED
and
TBS
INTERANTIONAL PUBLIC LIMITED COMPANY
as
Additional Guarantors
_______________________________________________________
FOURTH
AMENDATORY AGREEMENT
______________________________________________________
Amending
and Supplementing the Bareboat Charter Party dated as of January 24, 2007, as
amended and supplemented by the First Amendatory Agreement thereto dated as of
March 26, 2009, the Second Amendatory Agreement thereto dated as of April 16,
2009, and the Third Amendatory Agreement thereto dated as of December 31, 2009
in respect of the Panamanian registered and Philippine bareboat registered
SEMINOLE PRINCESS
FOURTH
AMENDATORY AGREEMENT dated as of January 12, 2010 (this “Agreement”)
AMONG
(1)
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ADIRONDACK
SHIPPING LLC, a Xxxxxxxx Islands limited liability company, as Owner (the
“Owner”);
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(2)
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FAIRFAX
SHIPPING CORP., a Xxxxxxxx Islands corporation, as bareboat Charterer (the
“Charterer”);
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(3)
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TBS
INTERNATIONAL LIMITED, a Bermuda company, as guarantor (the “Original Guarantor”);
and
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(4)
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TBS
HOLDINGS LIMITED, a company organized and existing under the law of
Bermuda (“TBSHL”),
and TBS INTERNATIONAL PUBLIC LIMITED COMPANY, a company organized and
existing under the law of Ireland (“TBSPLC”), as additional
guarantors (collectively, the “Additional Guarantors”
and together with the Original Guarantor, the “Guarantors”);
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WHEREAS, the Owner, the
Charterer and the Original Guarantor are parties to a bareboat charter party
dated as of January 24, 2007, as amended and supplemented by the First
Amendatory Agreement thereto dated as of March 26, 2009, the Second Amendatory
Agreement thereto dated as of April 16, 2009, and the Third Amendatory Agreement
thereto dated as of December 31, 2009 (as so amended and supplemented, the
“Charter”).
WHEREAS, the obligations of
the Charterer under the Charter are guaranteed by the Original Guarantor
pursuant to Clause 53 of the Charter.
WHEREAS, upon the terms and
conditions stated herein, the parties hereto have agreed to:
(a)
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join
the Additional Guarantors as parties to the Charter so as to have them
become jointly and severally liable, together with the Original Guarantor,
for the obligations of the Original Guarantor hereunder (including,
without limitation, the Guarantee Obligations pursuant to Clause 53 of the
Charter; and
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(b)
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amend
certain provisions of the Charter.
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NOW, THEREFORE, in
consideration of the premises set forth above, the covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1
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DEFINITIONS
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Defined
terms. Capitalized terms used but not defined herein shall
have the meaning assigned such terms in the Charter.
2
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JOINDER
OF TBSPLC AND TBSHL AS JOINT AND SEVERAL
GUARANTORS
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2.1
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Joinder of Additional
Guarantors. In consideration of the Owner’s consent to a
corporate reorganization pursuant to which, among other
things:
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(a)
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each
of TBSHL and TBSPLC were incorporated in their respective jurisdictions of
incorporation;
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(b)
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the
Original Guarantor transferred to TBSHL the shares held by the Original
Guarantor in various subsidiaries in exchange for the authorized shares in
TBSHL and an interest-free promissory note, thus resulting in TBSHL
becoming a wholly-owned subsidiary of the Original
Guarantor;
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(c)
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the
Original Guarantor became a tax resident in Ireland by moving “management
and control” to Ireland;
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(d)
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the
outstanding shares in the Original Guarantor were cancelled and new shares
in the Original Guarantor were issued to TBSPLC, thus resulting in the
Original Guarantor becoming a wholly-owned subsidiary of TBSPLC;
and
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(e)
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TBSPLC
issued a number of its own ordinary shares to the Original Guarantor’s
shareholders so that each such shareholder would hold the same percentage
equity interest in TBSPLC as such shareholder held in the Original
Guarantor,
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each of
TBSPLC and TBSHL hereby agree to become a Guarantor under the Charter and to be
jointly and severally liable, together with the Original Guarantor, for the
obligations of the Original Guarantor hereunder (including, without limitation,
the Guarantee Obligations pursuant to Clause 53 hereof, as amended
hereby).
2.2
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Acceptance of
Guarantors. The Owner hereby acknowledges and accepts
TBSPLC and TBSHL as joint and several Guarantors with the Original
Guarantor pursuant to the terms and conditions of the Charter (including,
without limitation, the Guarantee Obligations pursuant to Clause 53
hereof, as amended hereby).
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3
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AMENDMENTS
TO THE CHARTER
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3.1
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Amendments. The
parties hereto agree to amend the Charter as follows with effect on and
from the date hereof:
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(a)
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All
references in the Charter to “the Guarantor” shall mean and refer to the
Guarantors and in the singular shall mean any one of them as the context
may require.
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(b)
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Clause
35(3) is amended and restated to read as
follows:
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“(3)
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For
the duration of the Charter Period, and until all Charter Party
Obligations have been fulfilled and satisfied, the Guarantors
covenant:
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(a) to
be in compliance with:
(i)
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either:
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(x)
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the
financial covenants set forth in Section 7.13 of the Amended and Restated
Credit Agreement dated as of March 26, 2008, as amended or supplemented
from time to time, among Albemarle Maritime Corp., Arden Maritime Corp.,
Avon Maritime Corp., Birnam Maritime Corp., Bristol Maritime Corp.,
Xxxxxxx Shipping Corp., Cumberland Navigation Corp., Xxxxx Navigation
Corp., Dover Maritime Corp., Xxxxx Shipping Corp., Exeter Shipping Corp.,
Frankfort Maritime Corp., Glenwood Maritime Corp., Xxxxxx Shipping Corp.,
Xxxxxxx Navigation Corp., Xxxxxx Maritime Corp., Xxxxxx Maritime Corp.,
Xxxxxx Maritime Corp., Montrose Maritime Corp., Oldcastle Shipping Corp.,
Xxxxxxx Navigation Corp., Xxxxxx Shipping Corp., Remsen Navigation Corp.,
Sheffield Maritime Corp., Xxxxxxx Maritime Corp., Sterling Shipping Corp.,
Stratford Shipping Corp., Vedado Maritime Corp., Xxxxxx Maritime Corp.,
Windsor Maritime Corp. and other persons named therein from time to time
as Borrowers, (ii) the Original Guarantor as Holdings, (iii) TBS Shipping
Services Inc. as Administrative Borrower, (iv) each lender from time to
time party thereto as Lenders and (v) Bank of America, N.A. as
Administrative Agent, Swing Line Lender and L/C Issuer, upon the terms and
conditions of which a $267.5 million credit facility was made available to
the Borrowers named therein (the “Bank of America Credit Facility
Agreement”); or
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(y)
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such
other financial covenants temporarily permitted under the Bank of America
Credit Facility Agreement in lieu of the financial covenants set forth in
Section 7.13 thereof pursuant to any amendment or waiver executed in
respect of the Bank of America Credit Facility
Agreement,
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regardless
of whether the Bank of America Credit Facility Agreement is in effect (in which
case the foregoing financial covenants shall apply in their last form before
termination of the Bank of America Credit Facility Agreement), and
(ii)
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clauses
10.2(h)(ii) and 10.2(i)(i) of the Loan Agreement dated as of January 16,
2008, as amended by the First Amendatory Agreement thereto dated as of
March 23, 2009 and the Second Amendatory Agreement thereto dated as of
December 31, 2009, among (i) Bedford Maritime Corp., Brighton Maritime
Corp., Hari Maritime Corp., Prospect Navigation Corp., Xxxxxxx Navigation
Corp., Columbus Maritime Corp. and Whitehall Marine Transport Corp. as
Borrowers, (ii) the Guarantor as Guarantor, (iii) the banks and financial
institutions named therein as Lenders, (iv) DVB Group Merchant Bank (Asia)
Ltd. as Facility
Agent and Security Trustee, (v) The Governor and Company of the Bank of
Ireland (“BOI”) as
Payment Agent, (vi) DVB Bank SE, BOI and Natixis as Swap Banks and (vii)
Mount Washington LLC as Arranger;
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(b)
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to
promptly inform the Owner in the event the Guarantors are not in
compliance with any of the requirements of clause (a) above;
and
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(c)
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to
subordinate any and all claims of whatever nature which any Guarantor has
or may hereafter have against the Charterer to any and all claims of
whatever nature which the Owner has or may hereafter have against the
Charterer during the Charter Period and until all Charter Party
Obligations have been fulfilled.”
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(c)
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Clause
53 is amended and restated to read as
follows:
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“(1) Obligations
Guaranteed.
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(a)
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In
consideration of the Commitments of the Owner, the Guarantors hereby
unconditionally and irrevocably guarantee, jointly and severally, to the
Owner, as primary obligors and not as mere sureties (i) the full and
prompt payment of all amounts payable by the Charterer under the terms of
this Charter, including but not limited to Charter Hire; insurance
premiums and P&I calls; costs and fees, as the same shall become due
and payable, whether at the stated time for payment thereof, or by
acceleration upon a Charterparty Event of Default; (ii) the full and
prompt payment of any indemnity for loss, claim, expense or liability that
the Owner may suffer or incur by reason of or in connection with this
Charter, or the operation, use or employment of the Vessel; and (iii) the
full and prompt performance and observance by the Charterer of all
obligations, undertakings, covenants and agreements required to be
performed and observed by the Charterer under the terms of this Charter
(items (i) through (iii), the “Guarantee
Obligations”).
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(b)
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All
payments by the Guarantors shall be paid in the lawful currency of the
United States. Each and every default in the payment or
performance of the Guarantee Obligations, shall give rise to a separate
cause of action hereunder, and separate suits may be brought as each cause
of action arises.
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(c)
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The
Guarantors further agree that the Guarantee Obligations constitute an
absolute, unconditional, present and continuing guarantee of performance
and payment and not of collection, and waive any right to require that any
resort be had by the Owner to (i) any security held by or for the benefit
of the Owner for payment or performance of the Guaranteed Obligations;
(ii) the Owner’s right against any other person, or (iii) any other right
or remedy available to the Owner by contract, applicable law, or
otherwise. The Guarantee Obligations are direct, unconditional
and completely independent of the obligations of any other person or
entity, and a separate cause of action or separate causes of action may be
brought and prosecuted against the Guarantor without the necessity of any
other party or previous proceeding with or exhausting any other remedy
against any other person who might have become liable for the Guarantee
Obligations or of realizing upon any security held by or for the benefit
of the Owner.
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(d)
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The
Guarantors shall pay to the Owner all reasonable costs and expenses
(including, without limitation, reasonable attorneys’ fees) incurred by
the Owner upon the occurrence of a Charterparty Event of Default under the
terms of this Charter.
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(2) Guarantee Obligations of
Guarantor Unconditional. The Guarantee Obligations shall be
absolute and unconditional and shall remain in full force and effect until (a)
all amounts due or payable under the Charter shall have been paid and (b) all
other sums payable by the Charterer and the Guarantors under this Charter have
been paid in full and, to the extent permitted by law, such Guarantee
Obligations shall not be affected, modified, released or impaired by any state
of facts or the happening from time to time of any event, including, without
limitation, any of the following, whether or not with notice to or the consent
of the Guarantors:
(a)
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the
invalidity, irregularity, illegality, frustration or unenforceability of,
or any defect in this Charter or any collateral document related
hereto;
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(b)
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any
present or future law or order of any government (de jure or de facto) or of any
agency thereof purporting to reduce, amend or otherwise affect this
Charter or to vary any terms of
payment;
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(c)
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the
waiver, compromise, settlement, release, extension, change, modification
or termination of any or all of the obligations of (x) the Charterer under
this Charter (except by payment in full of all amounts due or payable
under this Charter) or (y) the Guarantors with respect to the Guarantee
Obligations (except by payment in full of all the Guarantee Obligations
hereunder);
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(d)
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the
failure to give notice to the Guarantor of the occurrence of a
Charterparty Event of Default under the
Charter;
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(e)
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the
modification or amendment (whether material or otherwise) of any Guarantee
Obligation under this Charter;
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(f)
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the
taking of, or the omission to take, any of the actions referred to in this
Charter;
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(g)
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any
failure, omission, delay, or lack on the part of the Owner to enforce,
assert or exercise any right, power or remedy conferred on the Owner in
this Charter;
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(h)
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the
voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets, marshalling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement or composition with
creditors or readjustment of, or other similar proceedings affecting any
Guarantor or any of its assets;
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(i)
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any
event or action that would, in the absence of this Clause, result in the
release or discharge of any Guarantor from the performance or observance
of any of the Guarantee Obligations, other than the performance
thereof;
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(j)
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the
default or failure of any Guarantor to fully perform any of its Guarantee
Obligations;
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(k)
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any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or a
guarantor;
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(l)
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the
actual or purported assignment of this Charter or of any of the Guarantee
Obligations;
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(m)
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to
the extent permitted by law, the release or discharge of any Guarantor
from the performance or observance of any guaranteed obligation, covenant
or agreement contained herein by operation of
law;
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(n)
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any
limitation on the liability or obligations of the Charterer under this
Charter or any termination, cancellation, frustration, invalidity or
unenforceability, in whole or in part, of this Charter, or any term
thereof;
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(o)
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the
merger or consolidation or any sale, lease or transfer of any or all of
the assets of the Charterer or any Guarantor to any person;
or
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(p)
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any
other occurrence whatsoever, whether similar or dissimilar to the
foregoing.
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(3) Waiver by Guarantor;
Expenses. Each of the Guarantors hereby expressly
(a) waives notice from the Owner of its acceptance and reliance on such
Guarantor’s Guarantee or of any action taken or omitted in reliance hereon,
(b) waives diligence, presentment, demand for payment, protest, any
requirement that any right or power be exhausted or any action be taken against
the Charterer or against any security for the Charterer’s obligations under this
Charter, (c) waives any right to require a proceeding first against the
Charterer or to exhaust any security for the performance of the obligations of
the Charterer, (d) agrees that the liability of such Guarantor shall not be
affected or decreased by any amendment, termination, extension, renewal, waiver,
modification or any, pledge or assignment of this Charter or the rejection or
disaffirmance thereof in any bankruptcy or like proceedings, and (e) agrees that
if any payment under this Charter is rescinded or otherwise must be returned by
the Owner or any assignee thereof for any reason whatsoever, then the Guarantee
Obligations shall continue to be effective or reinstated with respect to such
payment as though the Owner had never received such payment. Each of
the Guarantors agrees to pay all costs, fees, commissions and expenses
(including, without limitation, all court costs and reasonable attorneys’ fees)
which may be incurred by the Owner in enforcing or attempting to enforce the
Guarantee Obligations following any default on the part of the Guarantors
hereunder, whether the same shall be enforced by suit or otherwise.
(4) Other
Security. The Owner may pursue its rights and remedies against
the Guarantors notwithstanding (a) any security granted to the Owner under this
Charter; and (b) any action taken or omitted to be taken by the Owner to enforce
any of the rights or remedies with respect to any other security.
(5) No Set-off by the
Guarantors. No set-off, abatement, recoupment, counterclaim,
reduction or diminution of an obligation, or any defense of any kind or nature
which any Guarantor has or may have with respect to a claim hereunder, shall be
available hereunder to such Guarantor against the Owner.”
4.1
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References. Each
reference in the Charter to “this Charter”, “hereunder”, “hereof”,
“herein” or words of like import shall mean and refer to the Charter as
amended hereby.
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4.2
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Effect of this
Agreement. Subject to the terms of this Agreement, with
effect on and from the date hereof, the Charter shall be, and shall be
deemed by this Agreement to have been, amended upon the terms and
conditions stated herein and, as so amended, the Charter shall continue to
be binding on each of the parties to it in accordance with its terms as so
amended.
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4.3
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No other
amendments. Except as amended hereby, all other terms
and conditions of the Charter remain unchanged and the Charter is hereby
ratified and confirmed. Without limiting the foregoing, each
Guarantor ratifies and confirms that its guarantee under Clause 53 of the
Charter, as amended hereby.
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4.4
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Governing
Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed in accordance
with, Clause 26.2 of the Charter.
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4.5
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Counterparts. This
Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same
instrument.
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4.6
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Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating or affecting
the validity or enforceability of such provision in any other
jurisdiction.
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4.7
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Payment of
Expenses. The parties hereto agree to pay or reimburse
each of DVB Bank SE and DVB Bank America N.V. (collectively, the “Credit Parties”) for all
reasonable expenses in connection with the preparation, execution and
carrying out of this Agreement and any other document in connection
herewith or therewith, including but not limited to, reasonable fees and
expenses of any counsel whom the Credit Parties may deem necessary or
appropriate to retain, any duties, registration fees and other charges and
all other reasonable out-of-pocket expenses incurred by any of the Credit
Parties in connection with the
foregoing.
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[SIGNATURE
PAGES FOLLOW]
19113020
v1
WHEREFORE,
the parties hereto have caused this Fourth Amendatory Agreement to be executed
as of the date first above written.
ADIRONDACK
SHIPPING LLC, as Owner
By:
/s/ Asandro Van
Aerde
Name: Asandro
Van Aerde
Title:
Secretary
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FAIRFAX
SHIPPING CORP., as Charterer
By:
/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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TBS
INTERNATIONAL LIMITED, as Guarantor
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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TBS
INTERNATIONAL PUBLIC LIMITED COMPANY, as Guarantor
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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TBS
HOLDINGS LIMITED, as Guarantor
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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CONSENT
Pursuant
to Clause 10.2(k) of the Loan Agreement dated as of January 25, 2007, as
amended, among Adirondack Shipping LLC and Rushmore Shipping LLC as Borrowers,
the banks and financial institutions named therein as Lenders and DVB Bank
America N.V. as Facility Agent and Security Trustee, the Facility Agent, for and
on behalf of, and upon the instruction of, the Majority Lenders (as defined in
said Loan Agreement), hereby consents and agrees to the foregoing
Agreement.
DVB BANK
AMERICA N.V.,
as
Facility Agent for and on behalf of the Majority Lenders
By:
/s/ Xxxx Xxxxxxxx
Sarma
Xxxx Xxxxxxxx Sarma
Attorney-in-Fact