Dated: as of December 31, 2009 BEDFORD MARITIME CORP. BRIGHTON MARITIME CORP. HARI MARITIME CORP. PROSPECT NAVIGATION CORP. HANCOCK NAVIGATION CORP COLUMBUS MARITIME CORP. and WHITEHALL MARINE TRANSPORT CORP. as joint and several Borrowers TBS...
TBS INTERNATIONAL PLC
& SUBSIDIARIES EXHIBIT
10.17
Dated: as
of December 31, 2009
BEDFORD
MARITIME CORP.
BRIGHTON
MARITIME CORP.
HARI
MARITIME CORP.
PROSPECT
NAVIGATION CORP.
XXXXXXX
NAVIGATION CORP
COLUMBUS
MARITIME CORP.
and
WHITEHALL
MARINE TRANSPORT CORP.
as joint
and several Borrowers
TBS
INTERNATIONAL LIMITED
as
Guarantor
DVB
GROUP MERCHANT BANK (ASIA) LTD.
as
Lender
DVB
GROUP MERCHANT BANK (ASIA) LTD.
as
Facility Agent and Security Trustee
-and-
DVB
BANK SE
THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND
and
NATIXIS
as Swap
Banks
_______________________________________________________
______________________________________________________
Amending
and Supplementing the Loan Agreement dated as of January 16, 2008,
as
amended by a First Amendatory Agreement dated as of March 23, 2009
SECOND
AMENDATORY AGREEMENT dated as of December 31, 2009 (this “Second Amendatory
Agreement”)
AMONG
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(1)
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BEDFORD
MARITIME CORP., BRIGHTON MARITIME CORP., HARI MARITIME CORP., PROSPECT
NAVIGATION CORP., XXXXXXX NAVIGATION CORP., COLUMBUS MARITIME CORP. and
WHITEHALL MARINE TRANSPORT CORP., each a corporation organized and
existing under the law of the Republic of The Xxxxxxxx Islands, as joint
and several borrowers (each, a “Borrower” and together,
the “Borrowers”);
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(2)
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TBS
INTERNATIONAL LIMITED, a company organized and existing under the law of
Bermuda, as guarantor (the “Guarantor”);
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(3)
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DVB
GROUP MERCHANT BANK (ASIA) LTD., acting through its office at 00 Xxxxxxxx
Xxxx 00-00, Xxxxxxxxx, xx xxxxxx (in such capacity, the “Lender”);
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(4)
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DVB
GROUP MERCHANT BANK (ASIA) LTD., acting through its office at 00 Xxxxxxxx
Xxxx 00-00, Xxxxxxxxx, as facility agent (in such capacity, the “Facility Agent”) for the
Lender and as security trustee (in such capacity, the “Security Trustee”) for
the Lender and the Swap Banks; and
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(5)
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DVB
BANK SE (as successor-in-interest to DVB Bank AG), acting through its
office at Xxxxx xxx Xxxxxxxx 0, 00000 Xxxxxxxxx/Xxxx, Xxxxxxx, THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND, acting through its office at
Head Office, Building A3, Lower Baggot Street, Dublin 2, Ireland, and
NATIXIS, acting through its office at BP 4 - F-75060, Paris Cedex 02,
France, as swap banks (each, a “Swap Bank” and together,
the “Swap
Banks”).
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WITNESSETH
THAT:
WHEREAS, the Borrowers, the
Guarantor, the Lender, the Facility Agent, the Security Trustee, the Swap Banks
and others are parties to a Loan Agreement dated as of January 16, 2008 (the
“Original Loan Agreement”), as amended
by a First Amendatory Agreement dated as of March 23, 2009 (the “First Amendatory Agreement”;
and the Original Loan Agreement, as amended by the First Amendatory Agreement,
the “Loan
Agreement”).
WHEREAS, the waivers granted
pursuant to Clause 3.2 of the First Amendatory Agreement in respect of Clauses
10.1(x) and 10.3(a) of the Original Loan Agreement will expire as of 12:01 am on
January 1, 2010 (the “Specified
Waivers”).
WHEREAS, upon the terms and
conditions stated herein, the parties hereto have agreed pursuant to Clause
19.1(b) of the Loan Agreement to:
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(a)
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amend
certain provisions of the Loan Agreement;
and
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(b)
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extend
the Specified Waivers until the expiration of the Waiver Period (as
defined below).
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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:
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1
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DEFINITIONS
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1.1
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Defined
terms. Capitalized terms used but not defined herein
shall have the meaning assigned such terms in the Loan
Agreement. In addition:
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“Waiver Period” means the
period commencing on January 1, 2010 at 12:01 a.m. and ending on the earliest to
occur of (a) April 1, 2010 at 12:00 a.m. Eastern Time and (b) the occurrence
after the commencement of the Waiver Period of any Event of Default, including,
without limitation, any failure to comply with the provisions of this Second
Amendatory Agreement.
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2
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AMENDMENTS
TO THE LOAN AGREEMENT
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2.1
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Amendments. Pursuant
to Clause 19.1(b) of the Loan Agreement, subject to fulfillment or waiver
of the conditions subsequent stated in Clause 5 below, the parties hereto
agree to amend the Loan Agreement as follows with effect on and from the
date hereof:
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(a)
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The
definition of “Bank of America Credit Facility” in Clause 1.1 is amended
and restated to read as follows:
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““Bank of America Credit Facility
Agreement” means 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., Henley 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
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;”
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(b)
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The
definition of “Bank of America Credit Facility Financial Covenants” in
Clause 1.1 is amended and restated to read as
follows:
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““Bank of America Credit Facility
Financial Covenants” means the covenants stated in Section 7.13 of the
Bank of America Credit Facility Agreement;”
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(c)
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The
definition of “Margin” in Clause 1.1 is amended and restated to read as
follows:
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““Margin” means 5.00 percent per
annum;
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(d)
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The
definition of “RBS Credit Facility” in Clause 1.1 is amended and restated
to read as follows:
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““RBS Credit Facility Agreement”
means the Loan Agreement dated March 29, 2007, as amended or supplemented from
time to time, among Argyle Maritime Corp., Xxxxx Maritime Corp., Dorchester
Maritime Corp., Longwoods Maritime Corp., XxXxxxx Maritime Corp. and Sunswyck
Maritime Corp. as Borrowers, each lender from time to time party thereto as
Lenders, The Royal Bank of Scotland plc as Mandated Lead Arranger and The Royal
Bank of Scotland plc as Bookrunner, Agent, Security Trustee and Swap Bank, upon
the terms and conditions of which a $150.0 million credit facility was made
available to the Borrowers named therein;”
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(e)
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The
following definitions are added to Clause
1.1:
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““AIG Credit Facility Agreement”
means the Loan Agreement dated February 29, 2008, as amended or supplemented
from time to time, among Amoros Maritime Corp., Lancaster Maritime Corp. and
Chatham Maritime Corp. as Borrowers, TBS International Limited, as Parent
Guarantor and Sherwood Shipping Corp., as Guarantor, and AIG Commercial
Equipment Finance, Inc., as Lender, upon the terms and conditions of which a $35
million credit facility was made available to the Borrowers named
therein;”
““Berenberg Credit Facility Agreement”
means the Loan Agreement dated June 19, 2008, as amended or supplemented from
time to time, between Grainger Maritime Corp., as Borrower, and Joh. Xxxxxxxxx,
Xxxxxxx & Co. KG, as Lender, upon the terms and conditions of which a $13
million credit facility was made available to the Borrowers named
therein;”
““Commerzbank Credit Facility
Agreement” means the Loan Agreement dated May 28, 2008, as amended or
supplemented from time to time, between Dyker Maritime Corp. as Borrower, and
Commerzbank AG, as Lender, upon the terms and conditions of which a $12.5
million credit facility was made available to the Borrowers named
therein;”
““Credit Suisse Credit Facility
Agreement” means the Loan Agreement dated December 7, 2007, as amended or
supplemented from time to time, among Claremont Shipping Corp. and Yorkshire
Shipping Corp. as Borrowers, and Credit Suisse, as Lender, upon the terms and
conditions of which a $40 million credit facility was made available to the
Borrowers named therein;” and
““RBS Guarantee Facility
Agreement” means the Facility Agreement dated March 29, 2007, as amended
or supplemented from time to time, among Argyle Maritime Corp., Xxxxx
Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., XxXxxxx
Maritime Corp. and Sunswyck Maritime Corp. as Borrowers and The Royal Bank of
Scotland plc as Lender, upon the terms and conditions of which a $84 million
guarantee facility was made available to the Borrowers named
therein;”
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(f)
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Clause
10.2(h) is amended and restated to read as
follows:
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“(i)
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none
of the Borrowers shall incur any Financial Indebtedness other than (A) the
Loan, (B) in the usual course of business, (C) as permitted by the Finance
Documents and (D) Financial Indebtedness that is fully subordinated to the
Loan; and
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(ii)
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from
March 23, 2009 until 12:00 a.m. on April 1, 2010, the Guarantor Group
shall not, on a consolidated basis, incur any Financial Indebtedness other
than:
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(1)
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the
Loan;
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(2)
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in
the usual course of business;
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(3)
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pursuant
to the AIG Credit Facility
Agreement;
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(4)
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pursuant
to the Bank of America Credit Facility
Agreement;
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(5)
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pursuant
to the Berenberg Credit Facility
Agreement;
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(6)
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pursuant
to the Commerzbank Credit Facility
Agreement;
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(7)
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pursuant
to the Credit Suisse Credit Facility
Agreement;
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(8)
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pursuant
to the RBS Credit Facility
Agreement;
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(9)
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pursuant
to the RBS Guarantee Facility Agreement;
and
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(10)
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Financial
Indebtedness that is fully subordinated to the Guarantors’ obligations
under Clause 21 of the Loan
Agreement;”
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(g)
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Clause
10.2(i) is amended and restated to read as
follows:
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“(i)
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(A)
from March 23, 2009 until 12:00 a.m. on April 1, 2010 or (B) at any time
thereafter if an Event of Default shall have occurred and so long as such
Event of Default shall be continuing, the Guarantor shall
not:
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(x)
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declare
or pay any dividends or return any capital to any equity holder or
authorize or make any other distribution, payment or delivery of property
or cash to any equity holder as such (collectively, a “Distribution”);
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(y)
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redeem,
retire, purchase or otherwise acquire, directly or indirectly, for value,
any share of any class of its capital stock or other form of equity
interest (or require any rights, options or warrants relating thereto but
not including convertible debt) now or hereafter outstanding
(collectively, a “Redemption”);
or
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(z) set
aside any funds for any of the foregoing purposes;
and as of
the date immediately preceding the date on which the Guarantor is no longer
prohibited from declaring or making a Distribution or a Redemption, and the
Guarantor intends to declare or make a Distribution or Redemption, the Guarantor
shall establish to the reasonable satisfaction of the Facility Agent that no
Event of Default has occurred and is continuing or would occur from the
declaring or making of any such Distribution or Redemption;
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(ii)
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if
an Event of Default shall have occurred and so long as such Event of
Default shall be continuing, none of the Borrowers shall (x) declare or
make any Distribution or Redemption, (y) repay any subordinated loans or
(z) set aside any funds for any of the foregoing
purposes;”
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(h)
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Clause
13.1(q) is amended and restated to read as
follows:
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“(q)
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the
Guarantor Group fails to comply with the Bank of America Credit Facility
Financial Covenants; or”
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3
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EXTENSION
OF SPECIFIED WAIVERS
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3.1
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Extension of Specified
Waivers. Pursuant to Clause 19.1(b) of the Loan
Agreement, the Credit Parties agree to extend temporarily the waiver of
compliance by the Obligors with the requirements of Clauses 10.1(x) and
10.3(a) of the Loan Agreement during the Waiver Period (and for the
avoidance of doubt the Obligors’ compliance with the requirements of
Clauses 10.1(x) and 10.3(a) of the Loan Agreement shall be reinstated
immediately upon the expiration of the Waiver Period and shall be required
at all times thereafter).
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3.2
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Covenants. In
consideration of the Credit Parties’ agreement in Clause 3.1 to extend the
Specified Waivers temporarily during the Waiver Period, so long as any
Lender shall have any Commitment under the Loan Agreement, as amended
hereby, or any Secured Liabilities shall remain unpaid or unsatisfied, the
Guarantor Group shall not, on a consolidated
basis:
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(a)
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for
each calendar month ending on or after January 1, 2010, permit Qualified
Cash of the Loan Parties (other than the Limited Guarantors), to be less
than the greater of (i) $25,000,000 or (ii) $40,000,000 minus
any prepayment of Indebtedness made during such calendar month as
permitted after giving effect to Amendment No. 2 to the Bank of America
Credit Facility Agreement, of which a minimum average balance of
$9,375,000 in any such calendar month shall be deposited with Bank of
America, N.A.;
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(b)
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permit
the Consolidated Interest Charges Coverage Ratio as of the four fiscal
quarters ending December 31, 2009 to be less than 1.75:1.00;
and
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(c)
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prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof, in any manner, or make any payment in violation of any
subordination terms of, any Indebtedness,
except:
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(i)
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the
prepayment of the Credit Extensions in accordance with the terms of the
Bank of America Credit Facility
Agreement;
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(ii)
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regularly
scheduled or required repayments, mandatory prepayments or redemptions of
Indebtedness described on Schedule 7.02 of the Bank of America Credit
Facility Agreement in respect of the RBS Credit Facility Agreement, the
Credit Suisse Credit Facility Agreement, the AIG Credit Facility
Agreement, the Commerzbank Credit Facility Agreement and the Berenberg
Credit Facility Agreement; and
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(iii)
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other
prepayments of Indebtedness described on Schedule 7.02 the Bank of America
Credit Facility Agreement in respect of the RBS Credit Facility Agreement,
the Credit Suisse Credit Facility Agreement, the AIG Credit Facility
Agreement, the Commerzbank Credit Facility Agreement and the Berenberg
Credit Facility Agreement,
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provided that (A) any such
prepayment of Indebtedness corresponds to an amortization payment due during the
Waiver Period and that was otherwise due under such loan facility without giving
effect to any amendment or modification occurring after the Amendment No. 1
Effective Date and (B) all such prepayments of Indebtedness shall occur on or
after January 4, 2010.
For
purposes of (a), (b) and (c) above, all capitalized terms not otherwise defined
herein shall have the meaning assigned to such terms in the Bank of America
Credit Facility Agreement.
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4
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RELEASE
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4.1
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Release.
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(a)
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In
consideration of the Lender, the Facility Agent, the Security Trustee and
the Swap Banks entering into this Second Amendatory Agreement, each of the
Obligors acknowledges and agrees
that:
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(i)
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such
Obligor does not have any claim or cause of action against any Credit
Party (or any of such Credit Party’s respective directors, officers,
employees or agents);
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(ii)
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such
Obligor does not have any offset right, counterclaim or defense of any
kind against any of its respective Secured Liabilities to any Credit
Party; and
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(iii)
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each
of the Credit Parties has heretofore properly performed and satisfied in a
timely manner all of their respective obligations to the
Obligors.
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(b)
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To
eliminate any possibility that any past conditions, acts, omissions,
events, circumstances or matters would impair or otherwise adversely
affect any Credit Party’s rights, interests, contracts, collateral
security or remedies, each Obligor unconditionally releases, waives and
forever discharges:
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(i)
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any
and all liabilities, obligations, duties, promises or indebtedness of any
kind of any Credit Party to such Obligor, except the obligations to be
performed by any Credit Party on or after the date hereof as expressly
stated in this Second Amendatory Agreement, the Loan Agreement and the
other Finance Documents; and
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(ii)
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all
claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether arising at law or in equity, whether known or
unknown, which such Obligor might otherwise have against any Credit Party
or any of its directors, officers, employees or
agents,
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in either
case (i) or (ii), on account of any past or presently existing condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of
action, defense, circumstance or matter of any kind.
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5
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CONDITIONS
SUBSEQUENT
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5.1
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Conditions
subsequent. The effectiveness of this Second Amendatory
Agreement shall be subject to the following conditions subsequent being
completed to the reasonable satisfaction of the Facility Agent on or
before 5:00 p.m. New York time on January 29, 2010 (the “Conditions Subsequent
Deadline”):
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(a) The
Facility Agent shall have received:
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(i)
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an
original of this Second Amendatory Agreement, duly executed by the parties
hereto;
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(ii)
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a
copy of the Bank of America Credit Facility Agreement and any amendment
thereto, duly executed by the parties thereto, certified as of a date
reasonably near the date of this Second Amendatory Agreement by a director
or the president or the secretary (or equivalent officer) of the Guarantor
as being a true and correct copy
thereof;
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(iii)
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an
original addendum to the Mortgage in respect of each of the Ships, each
such addendum to be in form and substance satisfactory to the Facility
Agent and duly executed by the parties thereto, together with documentary
evidence that the relevant Mortgage addendum has been duly recorded
according to the laws of the Republic of Liberia and, if required by
Philippine law, that a cautionary notice with respect to such Mortgage
addendum has been filed in the Philippine Bareboat
Registry;
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(iv)
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copies
of the constitutional documents, and each amendment thereto, of each
Obligor, certified as of a date reasonably near the date of this Second
Amendatory Agreement by a director or the president or the secretary (or
equivalent officer) of such party as being a true and correct copy
thereof;
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(v)
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copies
of certificates dated as of a date reasonably near the date of this Second
Amendatory Agreement, certifying that each Obligor is duly incorporated
(or formed) and in goodstanding under the laws of such party’s
jurisdiction of incorporation (or formation) and, in respect of each
Borrower, that such Borrower is duly qualified and in goodstanding as a
foreign maritime entity under the law of the Republic of
Liberia;
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(vi)
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copies
of resolutions of the directors (or equivalent governing body) (and where
required, the shareholders or equivalent equity holders) of each Obligor
authorizing the execution of each of this Second Amendatory Agreement and
authorizing named officers or attorneys-in-fact to execute such documents,
certified as of a date reasonably near the date of this Second Amendatory
Agreement by a director or the president or the secretary (or equivalent
officer) of such party as being a true and correct copy
thereof;
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(vii)
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the
original of any power of attorney under which this Second Amendatory
Agreement and any document to be executed pursuant to this Second
Amendatory Agreement is to be executed on behalf of an
Obligor;
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(viii)
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copies
of all consents which any of the Obligors requires to enter into, or make
any payment or perform any of its obligations under or in connection with
the transactions contemplated by this Second Amendatory Agreement, each
certified as of a date reasonably near the date of this Second Amendatory
Agreement by a director or the president or the secretary (or equivalent
officer) of such party as being a true and correct copy thereof, or
certification by such director, president or secretary (or equivalent
officer) that no such consents are
required;
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(ix)
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a
certificate of each Obligor, signed on behalf of such party by a director
or the president or the secretary (or equivalent officer) of the
Guarantor, dated as of a date reasonably near the date of this Second
Amendatory Agreement, certifying as
to:
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1.
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the
absence of any proceeding for the dissolution or liquidation of such
party;
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2.
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the
veracity in all material respects of the representations and warranties
contained in the Loan Agreement, as amended hereby, as though made on and
as of the date of this Second Amendatory Agreement, except for (A)
representations or warranties which expressly relate to an earlier date in
which case such representations and warranties shall be true and correct,
in all material respects, as of such earlier date or (B) representations
or warranties which are no longer true as a result of a transaction
expressly permitted by the Loan
Agreement;
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3.
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the
absence of any material misstatement of fact in any information provided
by any of the Obligors to the Facility Agent or the Lender or the Swap
Banks since the date of the Original Loan Agreement and that such
information did not omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and
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4.
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the
absence of any event occurring and continuing, or resulting from this
Second Amendatory Agreement, that constitutes a Potential Event of Default
or an Event of Default.
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(x)
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a
favorable opinion of Xxxxxxxx & Xxxxxxx, New York, Liberian and
Xxxxxxxx Islands counsel to the Borrowers, in form, scope and substance
satisfactory to the Credit Parties;
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(xi)
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a
favorable opinion of Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to the
Guarantor, in form, scope and substance satisfactory to the Credit
Parties; and
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(xii)
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if
a cautionary notice with respect to each Mortgage addendum must be filed
in the Philippine Bareboat Registry, a favorable opinion of Xxxxx,
Xxxxxxx, Xxxxxxxxx & Xxxxxxxxxx, Philippine counsel to the Credit
Parties, in form, scope and substance satisfactory to the Credit
Parties;
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(xiii)
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No
Event of Default or Potential Event of Default shall have occurred and be
continuing and there shall have been no material adverse change in the
financial condition, operations or business prospects of the Obligors
since the date of the Loan Agreement;
and
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(b)
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The
Obligors shall have paid to the Facility Agent an amendment fee of
$89,660.
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5.2
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Waiver of conditions
subsequent. The Facility Agent, with the consent of the
Lender and the Swap Banks, may waive one or more of the conditions
referred to in Clause 5.1 provided that the
Obligors deliver to the Facility Agent a written undertaking to satisfy
such conditions within ten (10) Business Days after the Facility Agent
grants such waiver (or such longer period as the Facility Agent may
specify).
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5.3
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Failure to complete conditions
subsequent. If the Obligors fail to complete all or any
of the conditions subsequent required by Clause 5.1(a) by the Conditions
Subsequent Deadline, the Obligors acknowledge and agree that the
amendments made in Clause 2 hereof and the extension of the Specified
Waivers made in Clause 3 hereof shall be null, void and of no effect
whatsoever and that the Credit Parties shall be entitled to all rights and
to exercise all remedies afforded to them under the terms of the Loan
Agreement (all of which are expressly reserved) as if (a) such amendments
had not been made and (b) the Specified Waivers had not been extended by
this Agreement.
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6
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EFFECT
OF AMENDMENTS AND WAIVERS
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6.1
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References. Each
reference in the Original Loan Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import, and each reference to the
“Loan Agreement” in any of the other Finance Documents, shall mean and
refer to the Original Loan Agreement as amended hereby and by the First
Amendatory Agreement.
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6.2
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Effect of amendments and
waivers. Subject to the terms of this Second Amendatory
Agreement, with effect on and from the date hereof (subject to fulfillment
or waiver of the conditions subsequent stated in Clause 5 above) the Loan
Agreement shall be, and shall be deemed by this Second Amendatory
Agreement to have been, amended upon the terms and conditions stated
herein and, as so amended, the Loan Agreement shall continue to be binding
on each of the parties to it in accordance with its terms as so
amended. In addition, each of the Finance Documents shall be,
and shall be deemed by this Second Amendatory Agreement to have been,
amended as follows:
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(a)
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the
definition of, and references throughout each of such Finance Documents
to, the “Loan Agreement” and any of the other Finance Documents shall be
construed as if the same referred to the Original Loan Agreement and those
Finance Documents as amended or supplemented by this Second Amendatory
Agreement and the First Amendatory Agreement;
and
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(b)
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by
construing references throughout each of the Finance Documents to “this
Agreement”, “hereunder” and other like expressions as if the same referred
to such Finance Documents as amended and supplemented by this Second
Amendatory Agreement and the First Amendatory
Agreement.
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6.3
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No other amendments or waivers;
ratification. Except as amended, waived or temporarily
waived hereby, all other terms and conditions of the Loan Agreement and
the other Finance Documents remain unchanged and in full force and effect
and are hereby ratified and confirmed in all respects. Without
limiting the foregoing, the Guarantor acknowledges and agrees that the
Guaranty remains in full force and effect. The Obligors
acknowledge and agree that the Loan Agreement shall, together with this
Second Amendatory Agreement, be read and construed as a single
agreement.
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7
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REPRESENTATIONS
AND WARRANTIES
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7.1
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Authority. The
execution and delivery by each of the Obligors of this Second Amendatory
and the performance by each Obligor of all of its agreements and
obligations under the Loan Agreement, as amended hereby, are within such
Obligor’s corporate authority and have been duly authorized by all
necessary corporate action on the part of such
Obligor.
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7.2
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Enforceability. This
Second Amendatory Agreement and the Loan Agreement, as amended hereby,
constitute the legal, valid and binding obligations of each of the
Obligors party hereto and are enforceable against such Obligors in
accordance with their terms, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting generally the enforcement of, creditors’ rights and except
to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which
any proceeding may be brought.
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8
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MISCELLANEOUS
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8.1
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Governing
law. THIS SECOND AMENDATORY
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK, EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW (OTHER THAN THE NEW YORK GENERAL OBLIGATIONS LAW
§5-1401).
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8.2
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Counterparts. This
Second Amendatory 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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8.3
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Severability. Any
provision of this Second Amendatory 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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8.4
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Payment of
expenses. The Obligors agree to pay or reimburse each of
the Credit Parties for all reasonable expenses in connection with the
preparation, execution and carrying out of this Second Amendatory
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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8.5
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Headings and
captions. The headings captions in this Second
Amendatory Agreement are for convenience of reference only and shall not
define or limit the provisions
hereof.
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[SIGNATURE
PAGES FOLLOW]
WHEREFORE, the
parties hereto have caused this Second Amendatory Agreement to be executed as of
the date first above written.
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BEDFORD
MARITIME CORP., as Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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DVB
GROUP MERCHANT BANK (ASIA) LTD., as Lender
By
/s/ Xxxxxxx Xxx
Xxxx
Xxxxxxx xxx Xxxx
Attorney-in-Fact
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BRIGHTON
MARITIME CORP., as Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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DVB
GROUP MERCHANT BANK (ASIA) LTD., as Facility Agent and Security
Trustee
By:/s/ Xxxxxxx Xxx
Xxxx
Xxxxxxx xxx Xxxx
Attorney-in-Fact
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HARI
MARITIME CORP., as Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
PROSPECT
NAVIGATION CORP., as Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Swap Bank
By:
/s/ Xxxx
Xxxxxxx
Xxxx Xxxxxxx
Senior Manager
By: /s/ Xxxxxxxx
Xxxxx
Xxxxxxxx Xxxxx
Manager
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XXXXXXX
NAVIGATION CORP., as Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
COLUMBUS
MARITIME CORP., as Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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NATIXIS,
as Swap Bank
By:
/s/ Xxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx
Authorized Signatory
By:
/s/ Xxxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Authorized Signatory
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WHITEHALL
MARINE TRANSPORT CORP.,
as
Borrower
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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DVB
BANK SE, as Swap Bank
By:
/s/ Xxxx Xxxxxxxx Xxxxx
Xxxx Xxxxxxxx Xxxxx
Attorney-in-Fact
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TBS
INTERNATIONAL LIMITED,
as
Guarantor
By: /s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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