Dated: as of January 11, 2010 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
10.18
Dated: as
of January 11, 2010
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
Original Guarantor
TBS
HOLDINGS LIMITED
and
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY
as
Additional Guarantors
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
and
a Second
Amendatory Agreement dated as of December 31, 2009
THIRD
AMENDATORY AGREEMENT dated as of January 11, 2010 (this “Third 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 “Original
Guarantor”);
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(3)
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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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(4)
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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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(5)
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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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(6)
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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
Original 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 a Second Amendatory Agreement dated as of December 31, 2009 (the “Second Amendatory Agreement”,
and the Original Loan Agreement, as amended by the First Amendatory Agreement
and the Second Amendatory Agreement, the “Loan Agreement”).
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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add
TBSPLC and TBSHL as joint and several Guarantors (together with the
Original Guarantor) pursuant to the terms and conditions of Clause 21 of
the Loan Agreement, as amended hereby,
and
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(b)
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amend
certain provisions of the Loan
Agreement.
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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.
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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 Credit Parties’
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, including but not limited to Xxxxxxxxx,
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 and, together with the
Original Guarantor, jointly and severally, agree to guarantee the Guaranteed
Obligations pursuant to the terms and conditions of Clause 21 of the Loan
Agreement, as amended hereby.
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2.2
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Acceptance of
Guaranty. The Facility Agent, for and on behalf of the
Credit Parties, hereby acknowledges and accepts TBSPLC and TBSHL as joint
and several Guarantors with the Original Guarantor pursuant to the terms
and conditions of Clause 21 of the Loan Agreement, as amended
hereby.
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3
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AMENDMENTS
TO THE LOAN AGREEMENT
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3.1
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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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All
references in the Loan Agreement 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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The
definition of “Compliance Certificate” in Clause 1.1 is amended and
restated to read as follows:
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““Compliance Certificate” means
the certificate executed by TBSPLC’s chief financial officer or equivalent
officer, in the form set out in Appendix A to the Loan Agreement;”
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(c)
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The
definition of “Guarantor Group” in Clause 1.1 is amended and restated to
read as follows:
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““Guarantor Group” means,
collectively, TBSPLC and any other entity that is owned or controlled directly
or indirectly by TBSPLC;”
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(d)
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Clause
9.16 is amended and restated to read as
follows:
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“9.16.
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Corporate
structure.
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(a)
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None
of the Borrowers has any
subsidiaries.
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(b)
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All
of the outstanding equity of the Borrowers has been validly issued, is
fully paid, non-assessable and free and clear of all liens and is owned
beneficially and of record by
Xxxxxxxxx.
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(c)
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All
of the outstanding equity of Xxxxxxxxx has been validly issued, is fully
paid, non-assessable and is owned beneficially and of record by
TBSHL.
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(d)
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All
of the outstanding equity of TBSHL has been validly issued, is fully paid,
non-assessable and is owned beneficially and of record by the Original
Guarantor.
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(e)
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All
of the outstanding equity of the Original Guarantor has been validly
issued, is fully paid, non-assessable and is owned beneficially and of
record by TBSPLC.”
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(e)
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Clause
10.1(h) is amended and restated to read as
follows:
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“(h) TBSPLC
shall deliver to the Facility Agent:
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(i)
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its
quarterly and annual financial statements and other reports of material
events as soon as practicable but not later than 10 Business Days after
TBSPLC files such financial statements on Forms 10-Q and 10-K and reports
on Form 8-K with the United States Securities and Exchange Commission (but
in no event later than: (1) 120 days after the end of its fiscal year with
respect to its annual financial statements and (2) 90 days after the end
of each fiscal quarter);
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(ii)
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together
with its annual financial statements, reports of and/or updates on all
off-balance sheet financings and time charter hire commitments of any of
the Guarantors;
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(iii)
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together
with its quarterly and annual financial statements, a Compliance
Certificate; and
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(iv)
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such
other financial statements, annual budgets, projections and reports as may
be reasonably requested by the Facility Agent, each to be in such form as
the Facility Agent may reasonably
request;”
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(f)
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Clause
10.1(v) is amended and restated to read as
follows:
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“(v)
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each
Borrower shall cause all loans made to it by any Guarantor and all sums
and other obligations (financial or otherwise) owed by it to the relevant
Bareboat Charterer or the Approved Managers to be fully subordinated to
all Secured Liabilities of such
Borrower;”
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(g)
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Clause
10.1(x) is amended and restated to read as
follows:
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“(x)
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the
Guarantor Group, on a consolidated basis, shall be in compliance with the
Bank of America Credit Facility Financial Covenants (or such other
financial covenants temporarily permitted under the Bank of America Credit
Facility Agreement in lieu thereof pursuant to any amendment or waiver
executed in respect of the Bank of America Credit Facility Agreement)
regardless of whether the Bank of America Credit Facility Agreement is in
effect or not (in which case the Bank of America Credit Facility Financial
Covenants shall apply in their last form before termination of the Bank of
America Credit Facility Agreement), and shall evidence such compliance by
means of delivery of a quarterly compliance certificate to the Facility
Agent; and”
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(h)
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Clause
10.2(g) is amended and restated to read as
follows:
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“(g)
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none
of the Borrowers will permit any act, event or circumstance that would
result in Xxxxxxxxx holding directly less than 100% of such Borrower’s
equity and none of the Guarantors will permit any act, event or
circumstance that would result in:
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(i)
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TBSPLC
holding directly less than 100% of the Original
Guarantor;
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(ii)
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the
Original Guarantor holding directly less than 100% of TBSHL;
and
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(iii)
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TBSHL
holding directly less than 100% of
Xxxxxxxxx;”
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(i)
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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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from
March 23, 2009 until 12:00 a.m. on April 1, 2010 (the “No Distribution or Redemption
Period”) none of the Guarantors
may:
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(1)
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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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(2)
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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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(3) set
aside any funds for any of the foregoing purposes,
provided that so long as
TBSPLC first establishes 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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(A)
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TBSHL
shall be permitted to set aside funds for, declare and make a Distribution
to or a Redemption from the Original Guarantor during the No Distribution
or Redemption Period; and
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(B)
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the
Original Guarantor shall be permitted to set aside funds for, declare and
make a Distribution to or a Redemption from TBSPLC during the No
Distribution or Redemption Period;
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(ii)
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at
any time other than during the No Distribution or Redemption Period none
of the Guarantors may set aside funds for, declare and make a Distribution
or Redemption unless TBSPLC first establishes 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; and
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(iii)
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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 (1) declare or
make any Distribution or Redemption, (2) repay any subordinated loans or
(3) set aside any funds for any of the foregoing
purposes;”
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(j)
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Clause
10.2(j) is amended and restated to read as
follows:
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“(j)
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(i)
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none
of the Borrowers will increase its capital by way of the creation of
preference securities, further common or ordinary securities or otherwise
howsoever, or create any new class of
equity;
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(ii)
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none
of the Borrowers will permit any act, event or circumstance that would
result in Xxxxxxxxx owning beneficially and of record less than 100% of
the equity of each of the
Borrowers;
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(iii)
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TBSHL
shall not sell, transfer, assign or otherwise convey or dispose of any of
the share capital of Xxxxxxxxx;
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(iv)
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the
Original Guarantor shall not sell, transfer, assign or otherwise convey or
dispose of any of the share capital of TBSHL;
and
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(v)
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TBSPLC
shall not sell, transfer, assign or otherwise convey or dispose of any of
the share capital of the Original
Guarantor;”
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(k)
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Clause
13.1(g) is amended and restated to read as
follows:
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“(g)
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the
occurrence of any act, event or circumstance which results
in:
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(i)
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TBSPLC
owning, beneficially and of record, directly or indirectly, less than 100%
of the issued and outstanding equity of the Original
Guarantor;
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(ii)
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the
Original Guarantor owning, beneficially and of record, directly or
indirectly, less than 100% of the issued and outstanding equity of
TBSHL;
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(iii)
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TBSHL
owning, beneficially and of record, directly or indirectly, less than 100%
of the issued and outstanding equity of Xxxxxxxxx;
or
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(iv)
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Xxxxxxxxx
owning, beneficially and of record, directly or indirectly, less than 100%
of the issued and outstanding equity of a Borrower;
or”
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(l)
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Clause
20.2(d) is amended and restated to read as
follows:
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“(d) to
the Payment
Agent: The
Governor and Company of the Bank of Ireland
Head
Office
Building
B4
Lower
Baggot Street
Dublin 2,
Ireland
Attention:
Xxxxxxxx Xxxxx
Facsimile:
x000 0 000 0000”
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(m)
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Clause
21 is amended and restated to read as
follows:
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“21 GUARANTY
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21.1
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Guaranty. The
Guarantors hereby guarantee (this “Guaranty”), on a joint
and several basis, as primary obligors and not merely as sureties, the
performance and punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Secured Liabilities of the Borrowers now
or hereafter existing under this Agreement and any other Finance Document,
whether for principal, interest, fees, expenses or otherwise
(collectively, the “Guaranteed
Obligations”) due or owing to any of the Lenders or the Swap Banks
(each, a “Guaranteed
Party”), and agree to pay any and all expenses (including, without
limitation, counsel fees and expenses) incurred by a Guaranteed Party, the
Security Trustee, the Facility Agent or the Payment Agent in enforcing any
rights under this Guaranty. The obligations of the Guarantors
under this Guaranty are in addition to and shall not in any way be
prejudiced by any other guaranty or security now or subsequently held by
the Guaranteed Parties. The Guarantors hereby further agree
that if the Borrowers shall fail to pay in full when due (whether at
stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Guarantors will promptly pay the same, on first demand,
and that in the case of any extension of time of payment or renewal of any
of the Guaranteed Obligations, the same will be promptly paid in full when
due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or
renewal.
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21.2
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Obligations
absolute. The Guarantors guarantee that the Guaranteed
Obligations will be performed and paid to the Guaranteed Parties strictly
in accordance with the terms of any applicable agreement, express or
implied, of the Borrowers, regardless of any law, regulation or order of
any jurisdiction affecting any term of any Guaranteed Obligation or the
rights of the Guaranteed Parties with respect thereto, including, without
limitation, any law, rule or policy which is now or hereafter promulgated
by any governmental authority (including, without limitation, any central
bank) or regulatory body any of which may adversely affect the Borrowers’
ability or obligation to make, or right of the Guaranteed Parties to
receive, such payments, including, without limitation, any sovereign act
or circumstance which might otherwise constitute a defense to, or a legal
or equitable discharge of, the
Borrowers.
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21.3
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Guaranty
Unconditional. The liability of the Guarantors hereunder
shall be unconditional irrespective of, and the Guarantors hereby waive
any defenses they may assert with respect
to:
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(a)
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any
lack of validity or enforceability of any Guaranteed Obligation or
agreement or instrument relating
thereto;
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(b)
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any
change in the time, manner or place of payment of, or in any other term
of, any Guaranteed Obligation;
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(c)
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any
exchange, release or non-perfection of any other Collateral securing
payment of any Guaranteed
Obligation;
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(d)
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any
moratorium, bankruptcy, insolvency or other similar law or any other law,
regulation or order of any jurisdiction affecting any term of any
Guaranteed Obligation or a Guaranteed Party’s rights with respect thereto;
or
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(e)
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any
other circumstance which might otherwise constitute a defense available
to, or the discharge of, any of the Borrowers, or any of the
Guarantors.
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21.4
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Waiver of subrogation;
Contribution. Notwithstanding any other provision of
this Guaranty, until payment in full of the Guaranteed Obligations in cash
after termination of any of the Guaranteed Parties’ commitments with
respect thereto:
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(a)
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each
Guarantor hereby irrevocably waives any right to assert, enforce, or
otherwise exercise any right of subrogation to any of the rights, security
interests, claims, or liens which the Guaranteed Parties have against the
Borrowers in respect of the Guaranteed
Obligations;
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(b)
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each
Guarantor shall not have any right of recourse, reimbursements,
contribution, indemnification, or similar right (by contract or otherwise)
against the Borrowers in respect of the Guaranteed Obligations;
and
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(c)
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each
Guarantor hereby irrevocably waives any and all of the foregoing rights
and also irrevocably waives the benefit of, and any right to participate
in, any Collateral or other security given to the Guaranteed Parties to
secure payment of the Guaranteed
Obligations.
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21.5
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Subordination. The
Guarantors agree that, so long as the Borrowers remain under any actual or
contingent liability under this Agreement or any other Finance Document,
any rights which the Guarantors may have at any time by reason of the
performance by the Guarantors of the Guaranteed Obligations to take the
benefit (in whole or in part) of any security taken pursuant to this
Agreement or any of the other Finance Documents shall be subject and
subordinate to the rights of the Guaranteed Parties hereunder and shall be
exercised by the Guarantors in such manner and upon such terms as the
Guaranteed Parties may require and further agree to hold any monies at any
time received by any Guarantor as a result of the exercise of any such
rights or otherwise for and on behalf of the Guaranteed Parties for
application in or towards payment of any sums at any time owed by the
Borrowers under this Agreement or the other Finance
Documents.
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21.6
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Reinstatement. This
Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by a Guaranteed
Party.
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21.7
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Waiver. Each
Guarantor waives promptness, diligence and notices with respect to any
Guaranteed Obligation and this Guaranty and any requirement that a
Guaranteed Party exhaust any right or take any action against the
Borrowers or any other entity or any or their
property.
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21.8
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Payments;
No Reductions.
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(a)
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All
payments under this Guaranty shall be made in accordance with Clauses 11,
15 and 16 of this Agreement.
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(b)
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The
Guarantors agree to pay any taxes which arise from any payment made
hereunder or from the execution, delivery or registration by such
Guarantor of, or otherwise with respect to, this
Agreement.
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(c)
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The
Guarantors will indemnify a Guaranteed Party in accordance with Clause 15
upon demand.
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(d)
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Within
30 days after the date of any payment of taxes, the Guarantors will
furnish to each Guaranteed Party at its address for notices, the original
or a certified copy of a receipt evidencing payment thereof. If
no taxes are payable in respect of any payment, the Guarantors will
furnish to each Guaranteed Party a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to each Guaranteed
Party, in either case stating that such payment is exempt from or not
subject to taxes.
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21.9
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Continuing
Guarantee. This Guaranty is a continuing guaranty, is
joint and several with any other guarantee given in respect of the
Guaranteed Obligations, and shall remain in full force and effect until
the later of the termination of any Commitment of the Lenders under this
Agreement and the payment in full of the Guaranteed Obligations and all
other amounts payable hereunder and shall be binding upon the Guarantors,
their respective successors and permitted assigns. The
obligations of the Guarantors under this Guaranty shall rank pari passu with all
other unsecured obligations of each
Guarantor.”
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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 Third 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 Third 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 Third 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 Third Amendatory Agreement, duly executed by the parties
hereto;
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(ii)
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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 Third
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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(iii)
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copies
of certificates dated as of a date reasonably near the date of this Third
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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(iv)
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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 Third 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 Third 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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the
original of any power of attorney under which this Third Amendatory
Agreement and any document to be executed pursuant to this Third
Amendatory Agreement is to be executed on behalf of an
Obligor;
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(vi)
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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 Third Amendatory Agreement, each
certified as of a date reasonably near the date of this Third 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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(vii)
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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 Original
Guarantor, dated as of a date reasonably near the date of this Third
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 Third 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
Third Amendatory Agreement, that constitutes a Potential Event of Default
or an Event of Default.
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(viii)
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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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(ix)
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a
favorable opinion of Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to the
Original Guarantor and TBSHL, in form, scope and substance satisfactory to
the Credit Parties; and
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(x)
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a
favorable opinion of Xxxxxx Xxx, Irish counsel to TBSPLC, in form, scope
and substance satisfactory to the Credit Parties;
and
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(b)
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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.
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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 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 such amendments had
not been made.
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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 Third Amendatory
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 and the Second Amendatory
Agreement.
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6.2
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Effect of
amendments. Subject to the terms of this Third
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 Third
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 Third 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 Third Amendatory
Agreement, the First Amendatory Agreement and the Second 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 Third
Amendatory Agreement, the First Amendatory Agreement and the Second
Amendatory Agreement.
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6.3
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No other amendments;
ratification. Except as amended 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
Guarantors acknowledge and agree that the Guaranty remains in full force
and effect. The Obligors acknowledge and agree that the Loan
Agreement shall, together with this Third 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 Third 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
Third 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 Borrowers
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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|
8.2
|
Counterparts. This
Third 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
|
Severability. Any
provision of this Third 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 Third 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
|
Headings and
captions. The headings captions in this Third Amendatory
Agreement are for convenience of reference only and shall not define or
limit the provisions hereof.
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[SIGNATURE
PAGES FOLLOW]
19112852
v5
WHEREFORE,
the parties hereto have caused this Third Amendatory Agreement to be executed as
of the date first above written.
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BEDFORD
MARITIME CORP., as Borrower
By:
/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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DVB
GROUP MERCHANT BANK (ASIA) LTD., as Lender
By:
/s/ Xxxx Xxxxxxxx
Xxxxx
Xxxx Xxxxxxxx Xxxxx
Attorney-in-Fact
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BRIGHTON
MARITIME CORP., as Borrower
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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DVB
GROUP MERCHANT BANK (ASIA) LTD., as Facility Agent and Security
Trustee
By/s/ Xxxx Xxxxxxxx
Sarma
Xxxx Xxxxxxxx Sarma
Attorney-in-Fact |
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HARI
MARITIME CORP., as Borrower
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
PROSPECT
NAVIGATION CORP., as Borrower
By:/s/ Xxxxxxxxxxx X.
Xxxxxx
Xxxxxxxxxxx X.
Xxxxxx
Attorney-in-Fact
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THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Swap Bank
By:
/s/ Xxxx
Xxxxx
Xxxx Xxxxx
Senior Manager
By:
/s/ Xxxxxxxx
Xxxxx
Xxxxxxxx Xxxxx
Manager
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XXXXXXX
NAVIGATION CORP., as Borrower
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
COLUMBUS
MARITIME CORP., as Borrower
By:/s/ Xxxxxxxxxxx X.
Xxxxxx
Xxxxxxxxxxx X.
Xxxxxx
Attorney-in-Fact
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NATIXIS,
as Swap Bank
By:
/s/ Xxxxxx
Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Authorized Signatory
By:
/s/ Xxxxxx
Xxxxxxxx
Xxxxxx Xxxxxxxx
Authorized Signatory
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WHITEHALL
MARINE TRANSPORT CORP.,
as
Borrower
By:/s/ Christophil X.
Xxxxxx
Christophil X.
Xxxxxx
Attorney-in-Fact
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DVB
BANK SE, as Swap Bank
By:
/s/ Xxxx
Xxxxxxxx
Sarma
Xxxx Xxxxxxxx Xxxxx
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
HOLDINGS 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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