SUPPLEMENTAL LETTER TO THE LOAN AGREEMENT
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.7
SUPPLEMENTAL
LETTER TO THE LOAN AGREEMENT
|
To:
|
Claremont Shipping
Corp., Yorkshire
Shipping Corp.
and TBS International
Limited
|
|
|
Commerce
Building
|
|
|
Xxx
Xxxxxxxx Xxxx
|
|
|
Xxxxxxxx
XX00
|
|
|
Xxxxxxx
|
|
|
Attn:
Xxxxxxx X. Xxxx
|
|
and:
|
TBS International Public
Limited Company
|
|
|
Xxxxxx
Xxx Xxxxxxxx
|
|
|
Xxxxxxxxx
Xxxxxxx
|
|
|
Xxxxxx
0
|
|
|
Xxxxxxx
|
|
Copy:
|
TBS
Shipping Services Inc.
|
|
|
000
Xxxx Xxxxxx Xxxxxx Xxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
U.S.A.
|
|
|
Attn: Xxxxxxxxx
X. Xxxxxx
|
21 April
2010
Dear
Sirs
Loan
Agreement dated 7 December 2007 made between (i) Claremont Shipping Corp. and
Yorkshire Shipping Corp. as joint and several Borrowers and (ii) Credit Suisse
AG as Lender and Swap Bank relating to a term loan facility of US$40,000,000 as
supplemented by an amendment letter dated 19 March 2008, a waiver letter dated
24 March 2009, an extension of waiver letter dated 22 December 2009, a
supplemental agreement dated 8 January 2010 and a further extension of waiver
letter dated 31 March 2010 (together the “Loan Agreement”)
We refer
to the extension of waiver letter dated 31 March 2010 (the “Extension Letter”), pursuant
to clause 3 of which, it was agreed that the Borrowers and the Lender shall
enter into a further supplemental letter in order to set out the changes to the
financial covenants in order to conform them (where appropriate) to those set
out in the Bank of America Facilities as described in the Extension
Letter.
We
confirm that the Loan Agreement shall be amended with immediate effect by
replacing Schedule 3 to the Loan Agreement with the amended and restated form of
Schedule 3 set out in the Appendix to this letter.
For the
avoidance of doubt, we also confirm that:
|
1
|
the
Waiver Period as defined in the waiver letter dated 24 March 2009 (the
“Waiver Letter”)
and as extended by the Extension Letter to the waiver of any breach by the
Borrowers of the requirement set out at clause 14.1 of the Loan Agreement
(as set out in clause 2 at the top of page 2 of the Waiver Letter) has
been further extended and shall continue to apply until 00:00 hours on 1
January 2011 (New York time);
|
|
2
|
with
effect from 1 January 2011, clause 14.1 of the Loan Agreement shall be
amended so that the Loan to value of security ratio referred to therein
shall be amended to a ratio of 60%;
|
|
3
|
with
effect from 31 March 2010, and notwithstanding the provisions of clause
4.12 of the Loan Agreement and clause 1 set out at the top of page 2 of
the waiver letter, the applicable rate of Margin shall be 3.25% per annum
until further notice from us;
|
|
4
|
that
if the Borrowers are not in compliance with clause 14.1 of the Loan
Agreement on 1 January 2011, the Borrowers shall make a prepayment of
the Loan in such amount as is necessary for the Borrowers to comply with
clause 14.1 of the Loan Agreement which prepayment shall be applied
against the repayment instalments of the Loan in order of
maturity;
|
|
5
|
that
if the Borrowers require a further extension of the Waiver Period as set
out above for 2011, all repayment instalments due in 2011 shall have to be
prepaid in advance (in a total amount of US$3,496,000);
and
|
|
6
|
that,
notwithstanding clause 11.3(b) of the Loan Agreement, it is agreed that no
Borrower shall be permitted to pay any dividend during the Waiver Period
(as extended pursuant to the Extension Letter and as may be further
extended pursuant to Clause 5
hereof).
|
TBS
International Limited and TBS International Public Limited Company, by signature
of this letter, confirm their approval to the amendments to the Loan Agreement
set out herein and confirm that their respective guarantees shall remain in full
force and effect.
Words and
expressions defined in the Loan Agreement shall have the same meaning when used
herein except as expressly provided in this supplemental letter.
The
provisions of clause 30 (Law and Jurisdiction) of the Loan Agreement shall apply
to this Letter. For the avoidance of doubt all terms of the Loan
Agreement and the Finance Documents shall remain in full force and effect and,
save as provided herein, unchanged.
Yours
faithfully
/s/
Xxxxx Xxxxxxxx and /s/ X. Xxxxxx
duly
authorised for
CREDIT
SUISSE AG
(as
Lender and Swap Bank)
Accepted
and agreed this day
of 2010
by:
/s/ Xxxxxxxxx X. Xxxxxx
/s/ Xxxxxxxxx X.
Xxxxxx
duly
authorised
for duly authorised
for
Claremont
Shipping
Corp. Yorkshire
Shipping Corp.
We hereby
confirm and acknowledge that we have read and understood the terms and
conditions of the above letter and agree in all respects to the same and confirm
that the Guarantee to which we are a party shall remain in full force and effect
and shall continue to stand as security for the obligations of the Borrowers
under the Loan Agreement.
/s/ Xxxxxxxxx X.
Xxxxxx
TBS
INTERNATIONAL LIMITED
(as
Guarantor)
We hereby
confirm and acknowledge that we have read and understood the terms and
conditions of the above letter and agree in all respects to the same and confirm
that the New Guarantee to which we are a party shall remain in full force and
effect and shall continue to stand as security for the obligations of the
Borrowers under the Loan Agreement.
/s/ Xxxxxxxxx X.
Xxxxxx
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY
(as New
Guarantor)
APPENDIX
SCHEDULE
3
FINANCIAL
COVENANTS
Pursuant
to Clause 10.18 of this Agreement the Borrowers undertake that at all times they
shall not:
|
(a)
|
Minimum Cash
Liquidity. For each calendar month ending after
1 May 2010, permit Qualified Cash to be less than $15,000,000 at any
time during such calendar month, of which a minimum average balance of
$5,625,000 in any such calendar month must be deposited with Bank of
America, N.A..
|
|
(b)
|
Maximum Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio as of the
end of any fiscal quarter set forth below for the four fiscal quarter
period then ending of Holdings and its Subsidiaries, to be greater than
the ratio set forth below opposite such time
period:
|
|
4
Fiscal Quarters ending
|
Maximum
Consolidated
Leverage
Ratio
|
|
30
June 2010
|
5.00:1.00
|
|
30
September 2010
|
3.75:1.00
|
|
31
December 2010
|
3.00:1.00
|
|
31
March 2011
|
3.00:1.00
|
|
30
June 2011
|
2.75:1.00
|
|
30
September 2011 and thereafter
|
2:50:1.00
|
|
(c)
|
Minimum Consolidated Interest
Charges Coverage Ratio. Permit the Consolidated Interest
Charges Coverage Ratio as of the end of any fiscal quarter set forth below
for the four fiscal quarter period then ending of Holdings and its
Subsidiaries to be less than the ratio set forth below opposite such time
period (for the avoidance of doubt, the Consolidated Interest Charges
Coverage ratio will not be measured for any fiscal quarter ending after 30
September 2010:
|
|
4
Fiscal Quarters ending
|
Minimum
Consolidated
Interest
Charges Coverage Ratio
|
|
31
March 2010
|
2.50:1.00
|
|
30
June 2010
|
3.00:1.00
|
|
30
September 2010
|
3.75:1.00
|
|
(d)
|
Overall leverage
ratio. Permit the Total Debt to exceed 75% of Total
Assets as adjusted at Fair Market Values.
|
|
(e)
|
Minimum Consolidated Fixed
Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter set forth below
for the four fiscal quarter period then ending of Holdings and its
Subsidiaries to be less than the ratio set forth below opposite such time
period:
|
|
4
Fiscal Quarters ending
|
Minimum
Consolidated
Fixed
Charge Coverage Ratio
|
|
31
December 2010
|
1.10:1.00
|
|
31
March 2011
|
1.30:1.00
|
|
30
June 2011
|
1.50:1.00
|
|
30
September 2011 and at each quarter date
thereafter
|
1.75:1.00
|
For the
purposes of this Schedule 3 the following terms shall have the following
meanings.
“Attributable Indebtedness”
means, on any date, (a) in respect of any Capitalised Lease of any Person, the
capitalised amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any
Synthetic Lease Obligation, the capitalised amount of the remaining lease or
similar payments under the relevant lease or other applicable agreement or
instrument that would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP if such lease or other agreement or instrument
were accounted for as a Capitalised Lease and (c) all Synthetic Debt of such
Person;
“Capitalised Leases” means all
leases that have been or should be, in accordance with GAAP, recorded as
capitalised leases;
“Cash Equivalents” means any of
the following types of Investments, to the extent owned by the Borrowers or any
of their Subsidiaries free and clear of all Security Interests (other than (i) a
Security Interest in favour of the Bank of America, N.A. in respect of the
obligations arising under the Bank of America Facilities and/or
(ii) Permitted Security Interests and/or (iii) a Security Interest in
favour of The Royal Bank of Scotland plc in respect of the obligations arising
under the RBS Facilities):
|
(a)
|
readily
marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
having maturities of not more than 360 days from the date of acquisition
thereof; provided that the full faith and credit of the United States of
America is pledged in support
thereof;
|
|
(b)
|
time
deposits with, or insured certificates of deposit or bankers’ acceptances
of, any commercial bank that (i) (A) is a Lender or (B) is organised under
the laws of the United States of America, any state thereof or the
District of Columbia or is the principal banking subsidiary of a bank
holding company organised under the laws of the United States of America,
any state thereof or the District of Columbia, and is a member of the
Federal Reserve System, (ii) issues (or the parent of which issues)
commercial paper rated as described in Clause (c) of this definition and
(iii) has combined capital and surplus of at least $1,000,000,000, in each
case with maturities of not more than 90 days from the date of acquisition
thereof;
|
|
(c)
|
commercial
paper issued by any Person organised under the laws of any state of the
United States of America and rated at least “Prime-1” (or the then
equivalent grade) by Moody’s or at least “A-1” (or the then equivalent
grade) by S&P, in each case with maturities of not more than 180 days
from the date of acquisition thereof;
and
|
|
(d)
|
Investments,
classified in accordance with GAAP as current assets of the Borrowers or
any of their Subsidiaries, in money market investment programs registered
under the Investment Company Act of 1940, which are administered by
financial institutions that have the highest rating obtainable from either
Moody’s or S&P, and the portfolios of which are limited solely to
Investments of the character, quality and maturity described in Clauses
(a), (b) and (c) of this
definition;
|
|
|
“Consolidated EBITDA”
means, at any date of determination, an amount equalto Consolidated Net
Income of Holdings and its Subsidiaries on a consolidatedbasis for the
most recently completed Measurement Period,
plus:
|
|
(a)
|
the
following to the extent deducted in calculating such Consolidated Net
Income (and without duplication): (i) Consolidated Interest
Charges, (ii) the provision for Federal, state, local and foreign income
taxes payable, (iii) depreciation and amortization expense, (iv) net
losses from the sales of vessels as permitted under the Bank of America
Facilities, (v) any
noncash impairment charges incurred during each fiscal year of Holdings
and its Subsidiaries ending December 31, 2008, December 31, 2009, December
31, 2010 and December 31, 2011 in respect of any of Holdings’ or its
Subsidiaries’ goodwill and Vessels, (in each case of or by Holdings and
its Subsidiaries for such Measurement Period), (vi) costs incurred during
such Measurement Period in connection with the redomiciliation of Holdings
in an aggregate amount not to exceed $3,000,000 for all Measurement
Periods, and (vii) any noncash compensation in the form of Equity
Interests or other equity awards made to employees of Holdings and its
Subsidiaries in the fiscal years of Holdings and its Subsidiaries ending
December 31, 2010 and December 31, 2011 in an aggregate amount not to
exceed $10,000,000 in each such fiscal year (in each case of or by
Holdings and its Subsidiaries for such Measurement Period); and
minus
|
|
(b)
|
the
following to the extent included in calculating such Consolidated Net
Income, all net gains from the sales of vessels as permitted under the
Bank of America Facilities (in each case of or by Holdings and its
Subsidiaries for such Measurement Period); provided that, to the extent
characterized as interest on the income statements of Holdings and its
Subsidiaries for such Measurement Period pursuant to FASB Interpretation
No. 133 – Accounting for Derivative Instruments and Hedging Activities
(June 0000), xxxxxxx adjustments in connection with any interest rate Swap
Contract entered into by Holdings or any of its Subsidiaries, shall be
excluded;
|
“Consolidated Fixed Charge Coverage
Ratio” means, at any date of determination, the ratio of:
|
(a)
|
the
result of (i) Consolidated EBITDA, less (ii) the sum of (x) federal,
state, local and foreign income taxes paid in cash and (y) Restricted
Payments made, in each case, for the most recently completed Measurement
Period, to
|
|
(b)
|
the
sum of (i) Consolidated Interest Charges for the most recently completed
Measurement Period, (ii) the aggregate principal amount of all regularly
scheduled principal payments or redemptions or similar acquisitions for
value of outstanding debt for borrowed money for the period of twelve (12)
consecutive months following such date of determination, but excluding any
principal payments scheduled to be made in respect of the Revolving Credit
Facility (as defined in the Bank of America
Facilities);
|
“Consolidated Funded
Indebtedness” means, as of any date of determination, for Holdings and
its Subsidiaries on a consolidated basis, the sum of:
|
(a)
|
the
outstanding principal amount of all obligations, whether current or
long-term, for borrowed money (including Obligations under and as defined
in the Bank of America Facilities) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar
instruments;
|
|
(b)
|
all
purchase money Indebtedness;
|
|
(c)
|
all
direct obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;
|
|
(d)
|
all
obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);
|
|
(e)
|
all
Attributable Indebtedness;
|
|
(f)
|
without
duplication, all Guarantees with respect to outstanding Indebtedness of
the types specified in Clauses (a) through (e) above of Persons other than
the Borrowers or any Subsidiary;
and
|
|
(g)
|
all
Indebtedness of the types referred to in Clauses (a) through (f) above of
any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which a Borrower or
a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to such Borrower or such
Subsidiary;
|
“Consolidated Interest Charges”
means, for any Measurement Period, the sum of:
|
(a)
|
all
interest, premium payments, debt discount, fees, charges and related
expenses in connection with borrowed money (including capitalised interest
but excluding capitalised interest on Permitted New Vessel Construction
Indebtedness) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with
GAAP;
|
|
(b)
|
all
interest paid or payable with respect to discontinued operations;
and
|
|
(c)
|
the
portion of rent expense under Capitalised Leases that is treated as
interest in accordance with GAAP, in each case, of or by Holdings and its
Subsidiaries on a consolidated basis for the most recently completed
Measurement Period;
|
provided
that, to the extent characterized as interest on the income statements of
Holdings and its Subsidiaries for such Measurement Period pursuant to FASB
Interpretation No. 133 – Accounting for Derivative Instruments and Hedging
Activities (June 0000), xxxxxxx adjustments in connection with any interest rate
Swap Contract entered into by Holdings or any of its Subsidiaries, shall be
excluded;
“Consolidated Interest Charges
Coverage Ratio” means, at any date of determination, the ratio of the
result of the sum of (i) Consolidated EBITDA, less (ii) the sum
of federal, state, local and foreign income taxes paid in cash for
the most recently completed Measurement Period, to Consolidated Interest
Charges;
“Consolidated Leverage
Ratio” means, as of any date of determination, the ratio
of:
|
(a)
|
Consolidated
Funded Indebtedness as of such date
to,
|
|
(b)
|
Consolidated
EBITDA of Holdings and its Subsidiaries on a consolidated basis for the
most recently completed Measurement
Period;
|
“Consolidated Net Income”
means, at any date of determination, the net income (or loss) of Holdings and
its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that Consolidated Net Income shall
exclude:
|
(a)
|
extraordinary
gains and extraordinary losses for such Measurement
Period;
|
|
(b)
|
the
net income of any Subsidiary during such Measurement Period to the extent
that the declaration or payment of dividends or similar distributions by
such Subsidiary of such income is not permitted by operation of the terms
of its Organisation Documents or any agreement, instrument or law
applicable to such Subsidiary during such Measurement Period, except that
Holdings’ equity in any net loss of any such Subsidiary for
such-Measurement Period shall be included in determining Consolidated Net
Income; and
|
|
(c)
|
any
income (or loss) for such Measurement Period of any Person if such Person
is not a Subsidiary, except that Holdings’ equity in the net income of any
such Person for such Measurement Period shall be included in Consolidated
Net Income up to the aggregate amount of cash actually distributed by such
Person during such Period to Holdings or a Subsidiary as a dividend or
other distribution (and in the case of a dividend or other distribution to
a Subsidiary, such Subsidiary is not precluded from further distributing
such amount to Holdings as described in Clause (b) of this
proviso);
|
“Debtor Relief Laws” means the
Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganisation, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally;
“Equity Interests” means, with
respect to any Person, all of the shares of capital stock of (or other ownership
or profit interests in) such Person, all of the warrants, options or other
rights for the purchase of acquisition from such Person of shares of capital
stock of (or ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital stock of (or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of such shares (or such
other interests), and all of the other ownership or profit interests in such
Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination;
“Fair Market Value” means, with
respect to any asset or property, the sale value which would be obtained at
arm’s-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer;
“GAAP” means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a
significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently
applied;
“Guarantee” means, as to any
Person:
|
(a)
|
any
obligation, contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation
payable or performable by another Person (the “primary obligor”) in any
manner, whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds the purchase or payment of) such Indebtedness or other
obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness or
other obligation, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity or level of income or
cash flow of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in
part), or
|
|
(b)
|
any
Security Interest on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such Indebtedness
or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Security
Interest). The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has
a corresponding meaning;
|
“Holdings” means the New
Guarantor;
“Indebtedness” means, as to any
Person at a particular time, without duplication, all of the following, whether
or not included as indebtedness or liabilities in accordance with
GAAP:
|
(a)
|
all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other
similar instruments;
|
|
(b)
|
the
maximum amount of all direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;
|
|
(c)
|
net
obligations of such Person under any Swap
Contract;
|
|
(d)
|
all
obligations of such Person to pay the deferred purchase price of property
or services (other than trade accounts payable in the ordinary course of
business and not past due for more than 60 days after the date on which
such trade account was created);
|
|
(e)
|
indebtedness
(excluding prepaid interest thereon) secured by a Security Interest on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse;
|
|
(f)
|
all
Attributable Indebtedness in respect of Capitalised Lease and Synthetic
Lease Obligations of such Person and all Synthetic Debt of such
Person;
|
|
(g)
|
all
obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest in such
Person or any other Person or any warrant, right or option to acquire such
Equity Interest, valued, in the case of a redeemable preferred interest,
at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends; and
|
|
(h)
|
all
Guarantees of such Person in respect of any of the
foregoing.
|
For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date;
“Investment” means, as to any
Person, any direct or indirect acquisition or investment by such Person, whether
by means of:
|
(a)
|
the
purchase or other acquisition of Equity Interests of another
Person;
|
|
(b)
|
a
loan, advance or capital contribution to, Guarantee or assumption of debt
of, or purchase or other acquisition of any other debt or interest in,
another Person;
|
|
(c)
|
the
purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute a business unit
or all or a substantial part of the business of, such Person;
or
|
|
(d)
|
the
acquisition or construction of a vessel. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the
value of such Investment;
|
“Measurement Period” means, at
any date of determination, the most recently completed four fiscal quarters of
Holdings;
“Moody’s” means Xxxxx’x
Investors Service Inc., and any successor thereto;
“Organisation Documents”
means:
|
(a)
|
with
respect to any corporation, the certificate or articles of incorporation
and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S.
jurisdiction);
|
|
(b)
|
with
respect to any limited liability company, the certificate or articles of
formation or organisation and operating agreement;
and
|
|
(c)
|
with
respect to any partnership, joint venture, trust or other form of business
entity, the partnership, joint venture or other applicable agreement of
formation or organisation and any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation or
organisation with the applicable governmental authority in the
jurisdiction of its formation or organisation and, if applicable, any
certificate or articles of formation or organisation of such
entity;
|
“Permitted New Vessel Construction
Indebtedness” means Indebtedness incurred after the date when all the
conditions precedent in Section 4.01 of the Bank of America Credit Facilities
are satisfied or waived by Subsidiaries of Holdings that are not borrowers or
guarantors under the Bank of America Credit Facilities in connection with the
construction of up to twelve (12) multipurpose tweendecks or bulkcarrier
shipping vessels;
“Person” means any natural
person, corporation, limited liability company, trust, joint venture,
association, company, partnership, governmental authority or other
entity;
“Qualified Cash” means, as of
any date of determination, the amount of cash and Cash Equivalents which is
freely transferable and not subject to a Security Interest (other than (i) a
Security Interest in favour of the Bank of America, N.A. in respect of the
obligations arising under the Bank of America Facilities and/or (ii) a Permitted
Security Interest and/or (iii) a Security Interest in favour of The Royal Bank
of Scotland plc in respect of the obligations arising under the RBS Facilities)
pledge, security interest, encumbrance, escrow or cash collateral arrangement or
any other restriction on its use;
“Restricted Payment” means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any capital stock or other Equity Interest of any Person or any
of its Subsidiaries, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of
any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or any option, warrant or other right to acquire any
such dividend or other distribution or payment;
“S&P” means Standard &
Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies Inc., and any
successor thereto;
“Subsidiary” of a Person means
a corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned, or
the management of which is otherwise controlled, directly, or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of Holdings;
“Swap Contract”
means:
|
(a)
|
any
and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond
or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts,
or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any
master agreement; and
|
|
(b)
|
any
and all transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or
any other master agreement (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations
or liabilities under any Master
Agreement;
|
“Swap Termination Value” means,
in respect of any one or more Swap Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such Swap
Contracts:
|
(a)
|
for
any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s); and
|
|
(b)
|
for
any date prior to the date referenced in clause (a), the amount(s)
determined as the xxxx-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognised dealer in such Swap
Contracts;
|
“Synthetic Debt” means, with
respect to any Person as of any date of determination thereof, obligations of
such Person in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including any minority
interest transactions that function primarily as a borrowing) but are not
otherwise included in the definition of “Indebtedness” or as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in accordance
with GAAP;
“Synthetic Lease Obligation”
means the monetary obligation of a Person under:
|
(a)
|
a
so-called synthetic, off-balance sheet or tax retention lease;
or
|
|
(b)
|
an
agreement for the use or possession of property (including sale and
leaseback transactions), in each case, creating obligations that do not
appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterised as the
indebtedness of such Person (without regard to accounting
treatment);
|
“Total Assets” means all assets
of Holdings and its Subsidiaries on a consolidated basis which would, in
accordance with GAAP consistently applied, be classified as assets;
and
“Total Debt” means all
liabilities of Holdings and its Subsidiaries on a consolidated basis which
would, in accordance with GAAP consistently applied, be classified as
debt.
