AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
TBS INTERNATIONAL LIMITED
& SUBSIDIARIES EXHIBIT
10.1
AMENDMENT NO. 1 AND WAIVER
TO CREDIT AGREEMENT
This
AMENDMENT NO. 1 AND WAIVER TO
CREDIT AGREEMENT (this “Amendment”) dated as
of March 27, 2009, is by and among (i) ALBEMARLE MARITIME CORP., ARDEN MARITIME
CORP., AVON MARITIME CORP., BIRNHAM MARITIME CORP., BRISTOL MARITIME CORP.,
XXXXXXX SHIPPING CORP., CUMBERLAND NAVIGATION CORP., XXXXX NAVIGATION CORP.,
DOVER MARITIME CORP., XXXXX SHIPPING CORP., EXETER SHIPPING CORP., FRANKFORT
MARITIME CORP., GLENWOOD MARITIME CORP., XXXXXX SHIPPING CORP., XXXXXXX
NAVIGATION CORP., XXXXXX MARITIME CORP., XXXXXX MARITIME CORP., XXXXXX MARITIME
CORP., MONTROSE MARITIME CORP., OLDCASTLE SHIPPING CORP., XXXXXXX NAVIGATION
CORP., XXXXXX SHIPPING CORP., REMSEN NAVIGATION CORP., SHEFFIELD MARITIME CORP.,
XXXXXXX MARITIME CORP., STERLING SHIPPING CORP., STRATFORD SHIPPING CORP.,
VEDADO MARITIME CORP., XXXXXX MARITIME CORP. and WINDSOR MARITIME CORP., each a
corporation organized under the laws of the Republic of the Xxxxxxxx Islands
(collectively, the “Borrowers” and, each
individually, a “Borrower”), (ii) TBS
INTERNATIONAL LIMITED, a corporation formed under the laws of Bermuda (“Holdings”), (iii) TBS
SHIPPING SERVICES INC., a New York corporation, as administrative borrower (the
“Administrative
Borrower”), (iv) each lender from time to time party hereto
(collectively, the “Lenders” and
individually, a “Lender”), and (v)
BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”), Swing Line Lender and L/C Issuer.
WHEREAS, the Borrowers,
Holdings, the Administrative Borrower, the Lenders and the Administrative Agent
are parties to that certain Amended and Restated Credit Agreement dated as of
March 26, 2008 (as amended and in effect from time to time, the “Credit Agreement”), pursuant
to which the Lenders have agreed, upon certain terms and conditions, to make
loans and otherwise extend credit to the Borrowers;
WHEREAS, (i) Events of Default
have occurred and continue in connection with the Administrative Agent’s receipt
of a Valuation of the Vessels, dated on or about February 20, 2009, and as a
result of the Borrowers’ failure to prepay the Loans and other Credit Extensions
in an amount so that the Total Outstandings do not exceed the Maximum Available
Amount, in accordance with the requirements contained in Section 2.05(b)(iii) of
the Credit Agreement, and (ii) Events of Default are anticipated to occur as a
result of the Loan Parties’ failure to comply with the financial covenants set
forth in Section
7.13 of the Credit Agreement (the Events of Default described in clause
(i) and the anticipated Events of Default described in clause (ii),
collectively, the “Specified Events of
Default”);
WHEREAS, Events of Default
have occurred in connection with the Borrowers’ failure to, within 30 days after
the fiscal year of Holdings ending December 31, 2008, (i) deliver the report
summarizing insurance coverage required pursuant to Section 6.02(g) of
the Credit Agreement and (ii) deliver supplemental Schedules to the Credit
Agreement required pursuant to Section 6.02(k) (the
Events of Default described in clauses (i) and (ii), collectively, the “Other Events of
Default” and the report and supplemental Schedules described in clauses
(i) and (ii), collectively, the “Annual
Deliverables”).
WHEREAS, the Borrowers have
requested and the Lenders and the Administrative Agent are willing
(a) to waive the Specified Events of Default and the Other Events of Default,
subject to the terms, conditions and other provisions hereof, and (b) to amend
certain provisions of the Credit Agreement as more fully provided
herein;
WHEREAS, capitalized terms
which are used herein without definition and which are defined in the Credit
Agreement shall have the same meanings herein as in the Credit Agreement (as
amended hereby).
NOW, THEREFORE, in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and the Administrative Agent hereby agree as
follows:
Section 1. Waiver. Subject to the
terms and conditions set forth herein, the Lenders and the Administrative Agent
hereby agree to waive (i) the Specified Events of Default but only during the
Waiver Period and (ii) the Other Events of Default. Such limited
waiver of the Specified Events of Default shall automatically, and without
action, notice, demand or any other occurrence, expire on and as of the end of
the Waiver Period. Upon the expiration or termination of the Waiver
Period, and from and after such time, (i) the Lenders and the Administrative
Agent shall retain all of the rights and remedies relating to the Specified
Events of Default (unless the Pre-Waiver Covenant Compliance Date has occurred
as of the expiration of the Waiver Period) and any other Default or Event of
Default (other than the Other Events of Default), (ii) the Specified Events of
Default shall be reinstated and shall be in full force and effect for all
periods including periods after the Waiver Period (unless the Pre-Waiver
Covenant Compliance Date has occurred as of the expiration of the Waiver
Period), and (iii) any obligation of the Lenders under the Credit Agreement
shall be subject to the terms and conditions set forth in the Credit
Agreement.
Section 2. Affirmation and Acknowledgment of the Borrower. Each Borrower
hereby ratifies and confirms all of its Obligations to the Lenders, the L/C
Issuer and the Administrative Agent, including, without limitation, the Loans,
and each Borrower hereby affirms its absolute and unconditional promise to pay
to the Lenders, the L/C Issuer and the Administrative Agent the Loans and all
other amounts due under the Credit Agreement as amended hereby. Each
Borrower hereby confirms that the Obligations are secured pursuant to the
Collateral Documents and pursuant to all other instruments and documents
executed and delivered by the Borrowers and as security for the
Obligations.
Section 3. Release. In order to
induce the Administrative Agent and the Lenders to enter into this Amendment,
each Loan Party acknowledges and agrees that: (a) such Loan Party does not have
any claim or cause of action against the Administrative Agent, the L/C issuer or
any Lender (or any of its respective directors, officers, employees or agents);
(b) such Loan Party does not have any offset right, counterclaim or defense of
any kind against any of its respective obligations, indebtedness or liabilities
to the Administrative Agent, the L/C Issuer or any Lender; and (c) each of the
Administrative Agent, the L/C Issuer and each Lender has heretofore properly
performed and satisfied in a timely manner all of its obligations to the Loan
Parties. Each Loan Party wishes to eliminate any possibility that any
past conditions, acts, omissions, events, circumstances or matters would impair
or otherwise adversely affect the Administrative Agent’s, the L/C Issuer’s or
any Lender’s rights, interests, contracts, collateral security or
remedies. Therefore, each Loan Party unconditionally releases, waives
and forever discharges (i) any and all liabilities, obligations, duties,
promises or indebtedness of any kind of the Administrative Agent, the L/C Issuer
or any Lender to such Loan Party, except the obligations to be performed by any
Administrative Agent, the L/C Issuer or any Lender on or after the date hereof
as expressly stated in this Amendment, the Credit Agreement and the other Loan
Documents, and (ii) 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 Loan Party might otherwise have against the
Administrative Agent, the L/C Issuer, any Lender or any of its directors,
officers, employees or agents, 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.
Section 4. Amendment
to Schedules
to the Credit Agreement. Schedules
2.01(a), 5.05, 5.08(b), (c), (d)(i), (d)(ii) and (e), 5.13, 5.17, 5.27, 5.29,
6.12, 7.02 and 7.11 to the Credit Agreement are hereby amended and
restated in their entirety with Schedules 2.01(a), 5.05, 5.08(b), (c), (d)(i),
(d)(ii) and (e), 5.13, 5.17, 5.27, 5.29, 6.12, 7.02 and 7.11 attached hereto as
Exhibit
A.
Section 5. Amendment
to Exhibits
to the Credit Agreement. Exhibits D-1 and
D-2 to the Credit Agreement are hereby amended and restated in their entirety
with Exhibits D-1 and D-2 attached hereto as Exhibit
B.
Section 6. Amendments to Section 1.01 of the Credit Agreement.
(a) Section
1.01 of the Credit Agreement is hereby amended by adding the following new
defined terms in the appropriate alphabetical order:
“Amendment No. 1”
means Amendment No. 1 and Waiver to Credit Agreement, dated as of March 27,
2009, among the Borrowers, Holdings, the Administrative Borrower, the Lenders
and the Administrative Agent.
“Amendment No. 1 Effective
Date” means the date on which the conditions precedent to Amendment No. 1
have been satisfied.
“Consolidated Interest
Charges Coverage Ratio” means, at any date of determination, the ratio
of (a) the result 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 (b) Consolidated Interest Charges for
the most recently completed Measurement Period.
“Lenders’ Allocated
Percentage” means, in respect of a sale or issuance by any Loan Party of
its Equity Interests as provided in Section 2.05(b)(vi),
a fraction, expressed as a percentage, (a) the numerator of which is the amount
equal to the sum of the Revolving Credit Facility, plus the outstanding
principal amount of the Term Facility at the time of such sale or issuance of
Equity Interests, and (b) the denominator of which is the amount equal to the
sum of the Revolving Credit Facility, plus the outstanding
principal amount of the Term Facility, plus the sum of the
Loan Parties’ Indebtedness set forth on Schedule 7.02, in
each case, outstanding and in effect at the time of such sale or issuance of
Equity Interests.
“Pre-Waiver Covenant
Compliance Conditions” means, at any date of determination following the
commencement of the Waiver Period, the following conditions, (a) the Loan
Parties’ and their Subsidiaries shall be in full compliance with the financial
covenants provided in Section 7.13 for the
most recent fiscal quarter or month ended, as applicable, of Holdings and its
Subsidiaries, as such covenants were in effect immediately prior to the
commencement of the Waiver Period; provided that for the
purposes of determining compliance with such financial covenants, the
definitions of “Consolidated EBITDA” and “Consolidated Interest Charges” shall
respectively have the meaning assigned to such term after the Amendment No. 1
Effective Date, (b) the Total Outstandings shall not exceed the Maximum
Available Amount, and (c) no Default or Event of Default shall have occurred or
be continuing.
“Pre-Waiver Covenant
Compliance Date” means, as determined by the Administrative Agent based
on evidence provided by the Borrowers, the date on which the Borrowers shall
have demonstrated to the Administrative Agent’s satisfaction that each of the
Pre-Waiver Covenant Compliance Conditions have been satisfied.
“Waiver Period” means
the period commencing on March 2, 2009 and ending on the earliest to occur of
(a) January 1, 2010 at 12:00 a.m. Eastern Time and (b) the occurrence after the
commencement of the Waiver Period of any Default or Event of Default (other than
the Specified Events of Default and the Other Events of Default (each as defined
in the Amendment No. 1)) including, without limitation, any failure to comply
with the provisions of Amendment No. 1.
(b) Section
1.01 of the Credit Agreement is hereby amended by amending and restating the
following definitions in their entirety:
“Base Rate” means for
any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus
1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate” and (c) the Eurodollar
Rate in effect for such day for a one (1) month Interest Period plus
1%. The “prime rate” is a rate set by Bank of America based upon
various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public
announcement of such change.
“Consolidated EBITDA”
means, at any date of determination, an amount equal to Consolidated Net Income
of Holdings and its Subsidiaries on a consolidated basis 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 this Agreement and (v) any noncash impairment charges
incurred during each fiscal year of Holdings and its Subsidiaries ending
December 31, 2008 and December 31, 2009 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) 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 this Agreement (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 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 capitalized interest but excluding
capitalized 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 Capitalized 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.
“Net Present Rental
Value” means, as of any date, the aggregate net present value of all
Rentals payable by Holdings or any of its Subsidiaries to any Person (other than
Holdings or any of its other Subsidiaries) pursuant to any Operating Lease or,
without duplication, any charter of any vessel that, in each case, after giving
effect to any renewals or other extensions provided therein and in the absence
of any early termination, shall or would have a fixed remaining term of (a)
prior to the Pre-Waiver Covenant Compliance Date, eighteen months or more and
(b) commencing with the Pre-Waiver Covenant Compliance Date, twenty-three months
or more, in each case discounted to such date at a rate of 8.00% per
annum.
“Philippine Charterer”
means, with respect to any Vessel, one of CFS Bareboat Corp., Filscan Shipping,
Inc., General Charterer, Inc., Intermodal Shipping, Inc., Overseas Bulk
Transport, Inc., Sea Star Shipping Corp., Viking International Carriers, Inc.,
and each other bareboat charterer organized under the laws of the Philippines
acceptable to the Administrative Agent, as applicable.
(c) Effective
as of March 13, 2009, Section 1.01 of the Credit Agreement is hereby amended by
deleting the table set forth in the definition of “Applicable Rate” in its
entirety and substituting in lieu thereof the following new table:
|
Pricing
Level
|
Consolidated
Leverage Ratio
|
Eurodollar
Rate
(Letter
of Credit Fee)
|
Base
Rate
|
|
I
|
> 6.00:1.00
|
525.00
|
425.00
|
|
II
|
<
6.00:1.00
|
400.00
|
300.00
|
(d) Effective
as of March 13, 2009, Section 1.01 of the Credit Agreement is hereby amended by
deleting the table set forth in the definition of “Applicable Commitment Fee
Percentage” in its entirety and substituting in lieu thereof the following new
table:
|
Pricing
Level
|
Consolidated
Leverage Ratio
|
Commitment
Fee
|
|
I
|
> 6.00:1.00
|
100.00
|
|
II
|
<
6.00:1.00
|
75.00
|
Section 7. Amendments
to Section 2.05 of the Credit Agreement.
(a) Section
2.05(a)(i) of the Credit Agreement is hereby amended by deleting the words
“inverse order of maturity” in the last sentence contained therein and
substituting in lieu thereof the words “direct order of maturity”.
(b) Section
2.05(b)(iv) of the Credit Agreement is hereby amended by deleting the words “to
the Revolving Credit Facility in the manner set forth in clause (v), third of this Section 2.05(b)”
contained therein.
(c) Section
2.05(b) of the Credit Agreement is hereby amended by inserting the following new
paragraphs (vi) and (vii) in the appropriate numerical order:
(vi) Upon the sale or issuance by any
Loan Party or any of its Subsidiaries of any of its Equity Interests (other than
any sales or issuances of Equity Interests to a Loan Party), the Borrowers shall
prepay an aggregate principal amount of the Loans equal to the Lenders’
Allocated Percentage of all Net Cash Proceeds received therefrom immediately
upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to
be applied as set forth in clause (vii) below).
(vii) Each prepayment of Loans pursuant
to the foregoing clause (vi), of this
Section 2.05(b)
shall be applied, first, to the Term
Facility to the principal repayment installments thereof on a pro rata basis,
second, to the
Revolving Credit Facility in the manner set forth in clause (v) of this
Section 2.05(b)
(other than to Cash Collateralize the remaining L/C Obligations) and, third to Cash
Collateralize the remaining L/C Obligations.
Section 8. Amendment
to Section 4.02 of the Credit Agreement. Section 4.02 of
the Credit Agreement is hereby amended by inserting the following new paragraph
(g) in the appropriate alphabetical order:
(g) If
any Valuation (including, without limitation, any Initial Valuation or
Subsequent Valuation) of any Vessel (i) has been requested from an Appraiser,
(ii) is in the process of being conducted or prepared by an Appraiser, or (iii)
has been received by the Administrative Agent in draft form, but a final
Valuation has not been delivered to the Administrative Agent, five (5) Business
Days have elapsed following the Administrative Agent’s receipt of a final
Valuation, in form and substance satisfactory to the Administrative
Agent.
Section 9. Amendment to Article V of the Credit Agreement. Article
V of the Credit Agreement is hereby amended by inserting the following new
Section 5.29 in the appropriate numerical order:
5.29 Deposit Accounts; Securities
Accounts; Other
Accounts. Schedule 5.29 sets
forth all banks and other financial institutions at which any Loan Party or its
Subsidiaries maintains deposit accounts, securities account or other accounts
and such Schedule
5.29 correctly identifies the name, address and telephone number of each
depository, the name in which each account is held, a description of the purpose
of each account and the complete account number therefor.
Section 10. Amendments
to Section 6.02 of the Credit Agreement. Section
6.02(k)(ii)(C) of the Credit Agreement is hereby amended by deleting the words
“Schedules
5.08(e) and 5.13” and
substituting in lieu thereof the following words: “Schedules 5.08(e),
5.13 and 5.29”.
Section 11. Amendments
to Section 6.12 of the Credit Agreement.
(a) Section
6.12(a) of the Credit Agreement is hereby amended by deleting the first
parenthetical contained therein and substituting in lieu thereof the following
new parenthetical: “(other than any Excluded Subsidiary which is addressed in
clause
(c) below so long as the Pre-Waiver Covenant Compliance Date has occurred
but subject to Section
2.14 hereof).”
(b) Section
6.12(a)(i) of the Credit Agreement is hereby amended by deleting the words
“Section
4.01(a)(viii) and (ix)” and
substituting in lieu thereof “Section 4.01(a)(xvi)
and (xvii)”
(c) Section
6.12(c) of the Credit Agreement is hereby amended by deleting the first
paragraph contained therein and substituting in lieu thereof the following new
paragraph: “Commencing on the Pre-Waiver Covenant Compliance Date, subsequent to
the formation or acquisition of any direct or indirect Subsidiary that is an
Excluded Subsidiary by any Loan Party, then the Borrowers shall, at the
Borrowers’ expense:”
Section 12. Amendments
to Section 6.19 of the Credit Agreement.
(a) Section
6.19(a) of the Credit Agreement is hereby amended by inserting the following
sentence immediately after the last sentence contained therein: “Notwithstanding
the foregoing, the Borrowers shall cause the Appraiser to deliver to the
Administrative Agent, no later than fifteen (15) Business Days prior to the
expiration of the Waiver Period in lieu of the Valuation otherwise due on or
before March 31, 2010, a Valuation of each Vessel, dated and accurate as of no
earlier than thirty (30) days prior to the expiration of the Waiver
Period.”
(b) Section
6.19 of the Credit Agreement is hereby amended by inserting the following new
paragraph (d) in the appropriate alphabetical order:
“(d) Notwithstanding
anything contained in this Section 6.19 and for
the avoidance of doubt, in the event that a Valuation (including, without
limitation, any Initial Valuation or Subsequent Valuation) of any Vessel (i) has
been requested from an Appraiser, (ii) is in the process of being conducted or
prepared by an Appraiser, or (iii) has been received by the Administrative Agent
in draft form, pursuant to Section 4.02, no
Lender is required to honor any Request for Credit Extension (other than a
Committed Loan Notice requesting only a conversion of Loans to the other Type or
a continuation of Eurodollar Rate Loans) until five (5) Business Days following
the Administrative Agent’s receipt of a final Valuation, in form and substance
satisfactory to the Administrative Agent.”
Section 13. Amendment
to Section 7.02 of the Credit Agreement.
(a) Section
7.02(d) of the Credit Agreement is hereby amended and restated in its entirely
with the following new Section 7.02(d):
“(d) Indebtedness
outstanding on the date hereof and listed on Schedule 7.02
and any refinancings, refundings, renewals or extensions thereof; provided that (i) the
amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to a reasonable
premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent
obligor with respect thereto is not changed, as a result of or in connection
with such refinancing, refunding, renewal or extension; (ii) that the
terms relating to principal amount, amortization, maturity, collateral (if any)
and subordination (if any), and other material terms taken as a whole, in any
such refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith, are
no less favorable in any material respect to the Loan Parties or the Lenders
than the terms of any agreement or instrument governing the Indebtedness being
refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not
exceed the then applicable market interest rate; (iii) that the terms relating
to amortization in any such refinancing, refunding, renewing or extending of
Indebtedness, and of any agreement entered into and of any instrument issued in
connection therewith, shall not require the prepayment of any amortization
payments previously to be due after January 31, 2010; and (iv) that, in respect
of the Indebtedness owed by certain Subsidiaries of the Loan Parties to The
Royal Bank of Scotland plc, as lender under the loan agreement described on
Schedule
7.02, the terms relating to advances in any such refinancing,
refunding, renewing or extending of Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith shall not have the
effect of accelerating the timing of, or triggers for, advances under such
credit facility or permit such Subsidiaries to borrow under such credit facility
at any other times and in any other amounts other than the times and amounts set
forth in such loan agreement as in effect on the Amendment No. 1 Effective
Date.
(b) Sections
7.02(f), (g) and (h) of the Credit Agreement are each hereby amended by
inserting the following clause immediately before each such paragraph,
“Commencing on the Pre-Waiver Covenant Compliance Date,”
“(i) Indebtedness
otherwise permitted under Sections
7.02(f), (g)
and (h)
but incurred and existing prior to the Amendment No. 1 Effective Date but no
refinancings, refundings, renewals or extensions
thereof.”
Section 14. Amendments
to Section 7.03 of the Credit Agreement.
(a) Sections
7.03(i) and (j) of the Credit Agreement are each hereby amended by inserting the
following clause immediately before each such paragraph: “Commencing
on the Pre-Waiver Covenant Compliance Date,”
(b) Sections
7.03(h) is hereby amended restated in its entirety with the following new
Section 7.03(h):
(h) Investments
by Holdings and its Subsidiaries in Joint Ventures or in other Persons hereunder
in an aggregate amount invested since March 26, 2008 not to exceed (a) if the
Pre-Waiver Covenant Compliance Date has not occurred, $10,000,000 and (b)
commencing on the Pre-Waiver Covenant Compliance Date, the sum of (i)
$30,000,000 plus (ii) 25% of the
Consolidated Net Income earned in each full fiscal year ending after December
31, 2007 (with no deduction for a net loss in any such fiscal year) minus (iii) the
aggregate amount of dividends or other distributions made in each full fiscal
year ending after December 31, 2007 pursuant to Section 7.06;
provided, that
no Default or Event of Default has occurred and is continuing at the time any
such Investment is made.
(c) Section
7.03 of the Credit Agreement is hereby amended by inserting the following new
paragraph (k) in the appropriate alphabetical order:
“(k) Investments
otherwise permitted under Sections 7.03(i) and
(j) but made or
held and existing prior to the Amendment No. 1 Effective Date.”
Section 15. Amendment
to Section 7.05 of the Credit Agreement. Section 7.05(g)
of the Credit Agreement is hereby amended by inserting the following clause
immediately before such paragraph: “Commencing on the Pre-Waiver Covenant
Compliance Date,”
Section 16. Amendment
to Section 7.06 of the Credit Agreement. Section 7.06(d)
of the Credit Agreement is hereby amended by inserting the following clause
immediately before such paragraph: “Commencing on the Pre-Waiver Covenant
Compliance Date,”
Section 17. Amendment
to Section 7.19 of the Credit Agreement. Section 7.19 of
the Credit Agreement is hereby amended and restated in its entirety with the
following new Section 7.19:
7.19 Net Present Rental
Value. Permit Net Present Rental Value to exceed (a) if the
Pre-Waiver Covenant Compliance Date has not occurred, $45,000,000 and (b)
commencing on the Pre-Waiver Covenant Compliance Date, $60,000,000 in each case
calculated at the end of each fiscal quarter of Holdings.
Section 18. Covenants. Until the
expiration of the Waiver Period, so long as any Lender shall have any Commitment
hereunder, any Loan or Obligation shall remain unpaid or unsatisfied, each of
Holdings and the Borrowers shall not, nor shall it permit any Subsidiary to,
directly or indirectly:
(a) Minimum Cash
Liquidity. For each calendar month ending on or after the Amendment No. 1
Effective Date, permit Qualified Cash of the Loan Parties (other than the
Limited Guarantors), to be less than $40,000,000, of which a minimum average
balance of $15,000,000 in any such calendar month shall be deposited with Bank
of America, N.A.
(b) Minimum Consolidated
Interest Charges Coverage Ratio. Permit the Consolidated
Interest Charges Coverage Ratio as of the end of the period of determination
indicated below and for such period then ending of Holdings and its Subsidiaries
to be less than the ratio set forth below opposite such period:
|
Period
of Determination
|
Minimum
Consolidated Interest Charges Coverage Ratio
|
|
Two
fiscal quarters ending June 30, 2009
|
1.10:1.00
|
|
Three
fiscal quarters ending September 30, 2009
|
1.35:1.00
|
|
Four
fiscal quarters ending December 31, 2009
|
1.75:1.00
|
Section 19. Representations and Warranties. Holdings and the
Borrowers hereby represent and warrant to the Administrative Agent as
follows:
(a) Representation
and Warranties in the Credit Agreement. The representations
and warranties of Holdings and the Borrowers contained in the Credit Agreement
were true and correct in all material respects as of the date when made and
continue to be true and correct in all material respects on the date hereof
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 Credit Agreement.
(b) Ratification, Etc. Except as
expressly amended hereby, the Credit Agreement is hereby ratified and confirmed
in all respects and shall continue in full force and effect. The
Credit Agreement shall, together with this Amendment, be read and construed as a
single agreement. All references in the Credit Agreement or any
related agreement or instrument shall hereafter refer to the Credit Agreement as
amended hereby.
(d) Enforceability. This Amendment
and the Credit Agreement, as amended hereby, constitute the legal, valid and
binding obligations of Holdings and the Borrowers and are enforceable against
Holdings and the 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.
Section 20. Effectiveness of Amendment. The provisions of
this Amendment shall become effective as of the date first set forth above upon
the satisfaction of each of the following conditions, in each case in a manner
and in form and substance satisfactory to the Administrative Agent (unless
otherwise agreed to in writing by the Administrative Agent):
(a) The
Borrowers shall have made a prepayment of the Term Loan in an aggregate amount
equal to $19,000,000 where such prepayment shall be applied against the
September 30, 2009 and the December 31, 2009 amortization payments required
under Section
2.07 of the Credit Agreement; and
(b) Total
Revolving Credit Outstanding shall not exceed the Revolving Credit Facility;
and
(c) This
Amendment shall have been duly executed and delivered by each of the Borrowers,
Holdings, the Administrative Borrower, the Guarantors, the Administrative Agent
and the Required Lenders and shall be in full force and effect; and
(d) The
Administrative Agent shall have received a fully executed and effective
Accession Agreement, dated as of the date hereof, by Cumberland Navigation Corp,
Xxxxxx Maritime Corp., Vedado Maritime Corp. and the Administrative Borrower in
favor of the Administrative Agent and the Secured Parties; and
(e) The
Administrative Agent shall have received favorable legal opinions (including,
without limitation, local opinions), addressed to the Administrative Agent and
the other Secured Parties, of counsel to the Loan Parties, as to matters
requested by the Administrative Agent; and
(f) The
Administrative Agent shall have received signed Officer’s Certificates,
certified by a duly authorized officer of each Borrower and each Guarantor to be
true and complete, (a) of the records of all corporate (or equivalent) action
taken by such Borrower or such Guarantor to authorize (i) such Borrower’s or
such Guarantor’s execution and delivery of this Amendment, and (ii) such
Borrower’s and such Guarantor’s entry into and carrying out the terms of this
Amendment and the Credit Agreement, as amended hereby, and (b) of the
Organization Documents; and
(g) The
Administrative Agent shall have received a signed Officer’s Certificate,
certified by a duly authorized officer of Holdings to be true and complete,
attaching true, correct and complete fully executed copies of each amendment,
waiver and modification of each loan agreement evidencing the existing
Indebtedness of certain Subsidiaries of the Loan Parties described on Schedule 7.02 of the
Credit Agreement (including, without limitation, the various loan agreements
among certain Subsidiaries of Holdings and The Royal Bank of Scotland plc, DVB
Group Merchant Bank (Asia) Ltd., Credit Suisse, AIG Commercial Equipment
Finance, Inc, Commerzbank AG and Berenberg Bank.), together with each such loan
agreement, as in effect immediately prior to the Amendment No. 1 Effective
Date.
(h) The
Administrative Agent shall have received a Valuation for each Vessel, dated on
or about February 20, 2009 indicating the Fair Market Value for such Vessel as
of January 22, 2009 and issued by an Appraiser, at the expense of the Borrowers
and any other vessel appraisals, audits or certifications reasonably requested
by the Administrative Agent; and
(i) The
Borrowers shall have paid all fees set forth in the Fee Letter, dated as of
February 13, 2009, to the Administrative Agent for its own account and for the
account of the Required Lenders as provided therein; and
(j) The
Borrowers shall have paid all reasonable unpaid fees and expenses of the
Administrative Agent’s counsel, Xxxxxxx XxXxxxxxx LLP, to the extent that copies
of invoices for such fees and expenses have been delivered to the Borrowers;
and
(k) Since the
Administrative Agent’s receipt of forecasts of the consolidated balance sheets
and statements of income or operations and cash flows of Holdings and its
Subsidiaries (the “Projections”) on
February 17, 2009, there shall have been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect (other than the effect of any noncash
impairment charges incurred during each fiscal year of Holdings and its
Subsidiaries ending December 31, 2008 and December 31, 2009 in respect of any of
Holdings’ or its Subsidiaries’ goodwill and Vessels), and there shall have been
no material adverse change in the facts and information regarding the Loan
Parties as presented to the Administrative Agent.
(l) The
Projections continue to fairly present the projected results of the financial
condition of TBS and its Subsidiaries during the periods provided
therein.
(m) The
Lenders shall have received satisfactory evidence that the Administrative Agent
(for itself and the other Secured Parties) shall have a valid and perfected
first priority Lien on all of the Collateral and other assets of the Loan
Parties (including, without limitation, each of the Vessels).
(n) The
Administrative Agent shall have received the Annual Deliverables.
(o) The
Administrative Agent shall have received such other items, documents, agreements
or actions as the Administrative Agent may reasonably request in order to
effectuate the transactions contemplated hereby.
Section 21. No Other Amendments. Except as
expressly provided in this Amendment, all of the terms and conditions of the
Credit Agreement remain in full force and effect.
Section 22. Execution in Counterparts. This
Amendment may be executed in any number of counterparts, but all such
counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
Section 23. Expenses.
Pursuant to 11.04 of the Credit Agreement, all costs and expenses incurred or
sustained by the Administrative Agent in connection with this Amendment,
including the fees and disbursements of legal counsel for the Administrative
Agent in producing, reproducing and negotiating the Amendment, will be for the
account of the Borrowers whether or not the transactions contemplated by this
Amendment are consummated.
Section 24. Miscellaneous. THIS AMENDMENT 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). The captions in this Amendment are
for convenience of reference only and shall not define or limit the provisions
hereof. This Amendment shall constitute one of the Loan Documents
referred to in the Credit Agreement and any failure by any Loan Party to comply
with the terms contained herein shall constitute an immediate Event of
Default.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF, the
undersigned have duly executed this Amendment as of the date first set forth
above.
|
The Borrowers:
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
MARITIME CORP.
EXETER
SHIPPING CORP.
FRANKFORT
MARITIME CORP.
GLENWOOD
MARITIME CORP.
XXXXXX
SHIPPING CORP.
XXXXXXX
NAVIGATION CORP.
XXXXXX
MARITIME CORP.
XXXXXX
MARITIME CORP.
XXXXXX
MARITIME CORP.
MONTROSE
MARITIME CORP.
OLDCASTLE
SHIPPING CORP.
XXXXXXX
NAVIGATION CORP.
XXXXXX
SHIPPING CORP.
REMSEN
NAVIGATION CORP.
SHEFFIELD
MARITIME CORP.
XXXXXXX
MARITIME CORP.
STERLING
SHIPPING CORP.
STRATFORD
SHIPPING CORP.
VEDADO
MARITIME CORP.
XXXXXX
MARITIME CORP.
WINDSOR
MARITIME CORP.
By: /s/
Xxxx XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Attorney-in-Fact
|
|
Holdings:
TBS
INTERNATIONAL LIMITED
By:
/s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Attorney-in-Fact
|
|
The Administrative Borrower:
TBS SHIPPING SERVICES
INC.
By:
/s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Secretary
|
|
The Administrative Agent:
BANK
OF AMERICA, N.A.
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
|
|
The Lenders:
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By: /s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice
President
|
The Lenders
(cont):
DVB GROUP MERCHANT BANK (ASIA)
LTD.,
as
co-Syndication Agent and a Lender
By: /s/ Xxxx X.
Xxxxx /s/ Martijn van
Tuyl
Name:
Xxxx X. Xxxxx Martijn van
Tuyl
Title:
Senior Vice President
CITIBANK, N.A., as
co-Syndication Agent and a Lender
By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Vice President
TD BANKNORTH, N.A., as
Documentation Agent and a Lender
By: /s/ Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Senior Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X.
Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Director
CAPITAL ONE LEVERAGE FINANCE
CORP., as a Lender
By: /s/ Xxxxxx X
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Vice President
GUARANTY BANK, as a
Lender
By: /s Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Vice President
XXXXXXX XXXXX COMMERCIAL FINANCE
CORP., as a Lender
By: /s/ Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
XXXXXXX BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxxxx X.
XxXxxxxx
Name:
Xxxxxxx X. XxXxxxxx
Title:
Vice President
COMERICA BANK, as a
Lender
By: /s/ Xxxxxx
Xxxx
Name:
Xxxxxx Xxxx
Title:
Vice President
TRISTATE CAPITAL BANK, as a
Lender
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Senior Vice President
GUARANTORS’
ACKNOWLEDGMENT
Each of
the undersigned Guarantors hereby (a) acknowledges and consents to the foregoing
Amendment and the Borrowers’ execution thereof; (b) ratifies and confirms all of
their respective obligations and liabilities under the Loan Documents to which
any of them is a party and ratifies and confirms that such obligations and
liabilities extend to and continue in effect with respect to, and continue to
guarantee and secure, as applicable, the Obligations of the Borrowers under the
Credit Agreement as amended; (c) acknowledge and confirm that the liens and
security interests granted pursuant to the Loan Documents are and continue to be
valid and perfected first priority liens and security interests (subject only to
Permitted Encumbrances) that secure all of the Obligations on and after the date
hereof; (d) acknowledges and agrees that, as of the date hereof, such Guarantor
does not have any claim or cause of action against the Administrative Agent or
any Lender (or any of its respective directors, officers, employees or agents);
and (e) acknowledges, affirms and agrees that, as of the date hereof, such
Guarantor does not have any defense, claim, cause of action, counterclaim,
offset or right of recoupment of any kind or nature against any of their
respective obligations, indebtedness or liabilities to any Administrative Agent
or any Lender.
The
Guarantors:
TBS
U.S. ENTERPRISES LLC
By: TBS SHIPPING SERVICES INC.,
its sole member
By: /s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Secretary
TBS
ENERGY LOGISTICS L.P.
By: TBS U.S. ENTERPRISES LLC, its
general partner
By: TBS SHIPPING SERVICES INC.,
its sole member
By: /s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Secretary
The
Guarantors:
|
|
ROYMAR
SHIP MANAGEMENT, INC.
|
|
|
TBS
SHIPPING SERVICES INC.
|
|
|
AZALEA
SHIPPING & CHARTERING, INC.
|
|
|
COMPASS
CHARTERING CORP.
|
By: /s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Secretary
| TBS INTERNATIONAL LIMITED | |
|
|
XXXXXXXXX
HOLDINGS LTD.
|
|
|
TRANSWORLD
CARGO CARRIERS, S.A.
|
|
|
MERCURY
MARINE LTD. (F/K/A TBS LOGISTICS
LTD.)
|
|
|
TBS
WORLDWIDE SERVICES INC.
|
|
|
XXXXXXX
SHIPPING CORP.
|
|
|
FAIRFAX
SHIPPING CORP.
|
|
|
LEAF
SHIPPING CORP.
|
|
|
PACIFIC
RIM SHIPPING CORP.
|
|
|
TBS
AFRICAN VENTURES LIMITED
|
|
|
TBS
EUROLINES, LTD.
|
|
|
TBS
LATIN AMERICA LINER, LTD.
|
|
|
TBS
MIDDLE EAST CARRIERS, LTD.
|
|
|
TBS
NORTH AMERICA LINER LTD.
|
|
|
TBS
OCEAN CARRIERS, LTD.
|
| TBS PACIFIC LINER, LTD. | |
| TBS WAREHOUSE & DISTRIBUTION GROUP LTD. | |
| TBS WAREHOUSE & EQUIPMENT HOLDINGS LTD. | |
| TBS LOGISTICS INCORPORATED | |
| TBSI NEW SHP DEVELOPMENT CORP. | |
| TBS MINING LIMITED |
By: /s/ Xxxx
XxXxxxx
Name:
Xxxx XxXxxxx
Title:
Attorney-in-Fact
EXHIBIT
A
SCHEDULE
2.01(a)
COMMITMENTS
AND
APPLICABLE PERCENTAGES
|
Lender
|
Term
Commitment
|
Revolving
Credit Commitment
|
Term
Applicable Percentage
|
Revolving
Credit
Applicable
Percentage
|
|
Bank
of America, N.A.
|
$11,364,485.98
|
$12,710,281.20
|
14.953271025%
|
14.953272000%
|
|
DVB
Group Merchant Bank (Asia) Ltd.
|
$11,364,485.98
|
$12,710,280.52
|
14.953271025%
|
14.953271200%
|
|
Citibank,
N.A.
|
$9,943,925.23
|
$11,121,495.20
|
13.084112147%
|
13.084112000%
|
|
TD
Banknorth N.A.
|
$9,943,925.23
|
$11,121,495.20
|
13.084112147%
|
13.084112000%
|
|
Keybank
National Association
|
$8,523,364.49
|
$9,532,710.56
|
11.214953270%
|
11.214953600%
|
|
Capital
One Leverage Finance Corp.
|
$5,682,242.99
|
$6,355,139.92
|
7.476635516%
|
7.476635200%
|
|
Guaranty
Bank
|
$5,682,242.99
|
$6,355,139.92
|
7.476635516%
|
7.476635200%
|
|
Xxxxxxx
Xxxxx Commercial Finance Corp.
|
$4,261,682.26
|
$4,766,355.28
|
5.607476653%
|
5.607476800%
|
|
Xxxxxxx
Bank National Association
|
$3,551,401.87
|
$3,971,962.28
|
4.672897193%
|
4.672896800%
|
|
Comerica
Bank
|
$2,841,121.49
|
$3,177,569.96
|
3.738317754%
|
3.738317600%
|
|
Tristate
Capital Bank
|
$2,841,121.49
|
$3,177,569.96
|
3.738317754%
|
3.738317600%
|
|
Total
|
$76,000,000.00*
|
$85,000,000.00*
|
100.000000000%
|
100.000000000%
|
*After
the Amendment No. 1 Effective Date
EXHIBIT B
See
attached
