THIRD AMENDMENT TO LOAN AGREEMENT by and among AMOROS MARITIME CORP. LANCASTER MARITIME CORP. AND CHATHAM MARITIME CORP. as Borrowers TBS INTERNATIONAL LIMITED SHERWOOD SHIPPING CORP. AND TBS HOLDINGS LIMITED as Guarantors TBS INTERNATIONAL PUBLIC...
TBS
INTERNATIONAL PLC &
SUBSIDIARIES EXHIBIT
10.2
THIRD
AMENDMENT TO LOAN AGREEMENT
by
and among
AMOROS
MARITIME CORP.
LANCASTER
MARITIME CORP.
AND
CHATHAM
MARITIME CORP.
as
Borrowers
TBS
INTERNATIONAL LIMITED
SHERWOOD
SHIPPING CORP.
AND
TBS
HOLDINGS LIMITED
as
Guarantors
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY
as
Parent Guarantor
and
AIG
COMMERCIAL EQUIPMENT FINANCE, INC.
as
Lender
April
22, 2010
THIRD AMENDMENT TO LOAN
AGREEMENT
THIS THIRD AMENDMENT TO LOAN
AGREEMENT (this “Third Amendment”) is made and entered into this
22nd day of April,
2010, by and among Amoros Maritime Corp., Lancaster Maritime Corp. and
Chatham Maritime Corp., each a Xxxxxxxx Islands corporation having a mailing
address of X.X. Xxx XX 0000, Xxxxxxxx XXXX, Xxxxxxx and a registered address of
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands
MH96960 (the “Borrowers”; each, a “Borrower”), TBS International Limited, a
Bermuda corporation whose tax domicile is in Ireland (“TBSIL Guarantor”),
Sherwood Shipping Corp. (“Sherwood”), TBS Holdings Limited, a Bermuda company
(“Bermuda Holdco”), TBS International Public Limited Company, an Irish public
limited company (“Parent Guarantor”), and AIG Commercial Equipment Finance,
Inc., a Delaware corporation (together with its successors and assigns,
“Lender”). Capitalized terms used and not defined in this Third
Amendment shall have the meanings assigned in the Loan
Agreement. This Third Amendment supersedes and replaces the Third
Amendment to Loan Agreement dated April 13, 2010.
WHEREAS, Borrowers, TBSIL
Guarantor and Lender are parties to that certain Loan Agreement dated February
29, 2008 (the “Original Loan Agreement”; as amended by the First Amendment, the
Second Amendment, this Third Amendment, and any future amendments, the “Loan
Agreement”); and
WHEREAS, the Original Loan
Agreement was amended by that certain First Amendment to Loan Agreement dated as
of March 27, 2009 (the “First Amendment”) and that certain Second Amendment to
Loan Agreement dated as of December 30, 2009 (the “Second Amendment”);
and
WHEREAS, the parties wish to
further amend the Loan Agreement in certain respects, and to agree to certain
other matters, as more fully addressed below.
NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt of which is hereby acknowledged, Borrowers and Lender hereby agree as
follows:
1. The
reference to “ending December 31, 2009” in the defined term “Consolidated
EBITDA” in Section 1.01 of the Loan Agreement is hereby deleted.
2. For
purposes of computing “Consolidated EBITDA” as defined in Section 1.01 of the
Loan Agreement, the following items shall also be added to Consolidated Net
Income to the extent deducted in calculating Consolidated Net Income (and
without duplication): (vi) costs incurred during such Measurement Period in
connection with the redomiciliation of Parent Guarantor, Bermuda Holdco and
TBSIL Guarantor 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 Parent Guarantor and its
Subsidiaries in the fiscal years of Parent Guarantor 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 Parent Guarantor and
its Subsidiaries for such Measurement Period).
3. The
following language in the defined term “Consolidated Fixed Charge Coverage
Ratio” in Section 1.01 of the Loan Agreement will be deleted unless BofA and all
other creditors of Parent Guarantor and its Subsidiaries have agreed to such an
exclusion in computing the consolidated fixed charge coverage ratio under their
loan documents: “, but excluding any principal payments to be made in respect of
the “Revolving Credit Facility” under the BofA Credit Agreement or any
replacement revolving line of credit facility”.
4. The
entire proviso at the end of the defined term “Consolidated Funded Indebtedness”
in Section 1.01 of the Loan Agreement is hereby deleted.
5. The
following language is hereby added at the end of Section 2.07 of the Loan
Agreement: “Upon the sale or issuance by any Loan Party or any of its direct or
indirect Subsidiaries of any 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 Lender’s Allocated Percentage of all
proceeds received therefrom (the “Proceeds”), in each case immediately upon
receipt thereof by such Loan Party or such Subsidiary (such prepayments to be
applied pro rata to the remaining principal installments under the Notes in the
direct order of maturity). “Lender’s Allocated Percentage” of the
proceeds of any sale or issuance of any Equity Interests means the percentage
that the aggregate outstanding principal balance of the Notes bears to the
aggregate outstanding principal balance of all promissory notes of Parent
Guarantor or any of its Subsidiaries.” Notwithstanding anything in
this paragraph 5 to the contrary, as long as no default or Event of Default has
occurred under the Loan Agreement or under any of the other documents relating
thereto, the Proceeds may be used to cover the remaining equity due under the
existing Shipbuilding Contracts but only to the extent the balance in the
Restricted Equity Deposit Account and any equity payments made from operating
cash flow of Parent Guarantor or any of its Subsidiaries are not sufficient to
meet all remaining equity requirements under the existing Shipbuilding
Contracts. “Shipbuilding Contracts” and “Restricted Equity Deposit
Account” shall have the meanings assigned to them in that certain Loan Agreement
dated March 29, 2007 with The Royal Bank of Scotland plc.
6. The
obligations to prepay and pledge that are set forth in Section 5.12 of the Loan
Agreement do not apply with respect to Vessel valuations as of any date on or
before December 31, 2010, but do apply with respect to
Vessel valuations as of any date after December 31, 2010.
7. The
provisions of Section 6.10(a) of the Loan Agreement are hereby
deleted.
8. Lender
hereby agrees to waive any default under Section 6.10(b) of the Loan Agreement
with respect to any period ending on or before April 30, 2010 but not
thereafter. Notwithstanding anything in Section 6.10(b) of the
Loan Agreement to the contrary, Qualified Cash owned by Parent Guarantor and its
Subsidiaries shall not, at any time during any calendar month after April 2010,
be less than $15,000,000, of which a minimum average balance of $5,625,000 in
each such calendar month must be deposited with Bank of America, N.A. and of
which a minimum balance of $5,000,000 (excluding any restricted cash) in each
such calendar month must be deposited with The Royal Bank of Scotland
PLC.
9. Lender
hereby agrees to waive any default under Section 6.10(c) of the Loan Agreement
with respect to any period ending on or before March 31, 2010 but not
thereafter. Notwithstanding anything in Section 6.10(c) of the
Loan Agreement to the contrary, the Consolidated Leverage Ratio shall not be
greater than: (a) 5.00:1.00 as of June 30, 2010 (for the four fiscal quarter
period then ending); (b) 3.75:1.00 as of September 30, 2010 (for the four fiscal
quarter period then ending); (c) 3.00:1.00 as of December 31, 2010 (for the four
fiscal quarter period then ending) and as of March 31, 2011 (for the four fiscal
quarter period then ending); (d) 2.75:1.00 as of June 30, 2011 (for the four
fiscal quarter period then ending); and (e) 2.50:1.00 as of September 30, 2011
(for the four fiscal quarter period then ending) and as of the end of each
fiscal quarter thereafter (for the four fiscal quarter period then
ending).
10. Lender
hereby agrees to waive any default under Section 6.10(d) of the Loan Agreement
with respect to any period ending on or before September 30, 2010 but not
thereafter. Notwithstanding anything in Section 6.10(d) of the
Loan Agreement to the contrary, the Consolidated Fixed Charge Coverage Ratio
shall not be less than: (a) 1.10:1.00 as of December 31, 2010 (for the four
fiscal quarter period then ending); (b) 1.30:1.00 as of March 31, 2011 (for the
four fiscal quarter period then ending); (c) 1.50:1.00 as of June 30, 2011 (for
the four fiscal quarter period then ending); and (d) 1.75:1.00 as
of September 30, 2011 (for the four fiscal quarter period then
ending) and as of the end of each fiscal quarter thereafter (for the four fiscal
quarter period then ending).
11. Lender
hereby agrees to waive any default under Section 6.10(e) of the Loan Agreement
with respect to any period ending on or before December 31, 2009 but not
thereafter. Notwithstanding anything in Section 6.10(e) of the
Loan Agreement to the contrary, the Consolidated Interest Coverage Ratio shall
not be less than: (a) 2.50:1.00 as of March 31, 2010 (for the four fiscal
quarter period then ending); (b) 3.00:1.00 as of June 30, 2010 (for the four
fiscal quarter period then ending); and (c) 3.75:1.00 as of September 30, 2010
(for the four fiscal quarter period then ending).
12. The
first sentence in the last paragraph of Section 6.10 of the Loan Agreement is
hereby amended and restated into three sentences to read as follows: “Unless
otherwise required by Lender as a result of a Default or a Material Adverse
Change in a Borrower’s or Guarantor’s financial position, compliance will be
tested at the times set forth in the particular financial covenant, based on the
consolidated financial statements of Parent Guarantor. Parent
Guarantor shall provide to Lender, as soon as available, but in any event within
20 days after the end of each month, monthly management information including:
(i) consolidated operating profit, (ii) consolidated net income, (iii)
Consolidated EBITDA, and (iv) Qualified Cash and Availability. Parent
Guarantor shall provide to Lender, promptly upon receipt by Parent Guarantor,
any of its Subsidiaries, or any lender under any other credit facility, any
report, study, or review conducted or compiled by a consultant or other
independent party regarding the business or operations of Parent Guarantor or
any of its Subsidiaries.”
13. Borrowers
and Guarantors represent and warrant that the rights and consideration given to
Lender in this Third Amendment, and the concessions made by Lender in this Third
Amendment, are at least as favorable to Lender as the rights and consideration
given to, and concessions made by, any other creditor of Parent Guarantor or any
of its Subsidiaries in connection with any existing defaults under any agreement
with such other creditor.
14. This
Third Amendment is subject to the conditions precedent that Lender shall have
received all of the following, in form and substance acceptable to Lender in its
sole discretion:
(a) fully
executed copies of all amendments, waivers or other modifications (reasonably
satisfactory to Lender) of each agreement evidencing or securing the existing
Indebtedness of Parent Guarantor or any of its Subsidiaries, entered into in
connection with any existing defaults under any such agreement;
(b)
signed copies of a certificate of an authorized officer of Borrowers, TBSIL
Guarantor, Sherwood, Bermuda Holdco and Parent Guarantor which shall certify the
names of the officers of such entities authorized to execute and deliver this
Third Amendment, and other documents or certificates to be delivered pursuant to
this Third Amendment, together with the true signatures of such
officers;
(c)
copies of the appropriate resolutions and consents of Borrowers, TBSIL
Guarantor, Sherwood, Bermuda Holdco and Parent Guarantor approving this Third
Amendment, certified by the Secretary (or other appropriate official) of such
party as being a true and correct copy thereof;
(d) such
other documents, certifications and acknowledgments respecting the Loan
Documents or the Security Documents as Lender shall reasonably
request;
(e) the
continuing compliance by Borrowers and Guarantors of their obligations under the
Loan Agreement and the other Loan Documents;
(f)
evidence satisfactory to Lender that no Loan Party is in default under the Loan
or any other indenture or loan or credit agreement or any other agreement, lease
or instrument to which it is a party or by which it or its properties may be
bound or affected; or, if such default exists, that it has been waived by the
applicable creditor; and
(g)
Lender’s receipt of all fees and costs of Lender in connection with this Third
Amendment and the transactions contemplated hereby.
Lender’s
waiver of any condition with respect to this Third Amendment for a particular
Borrower or Guarantor shall not be deemed absent express written agreement to
constitute a waiver of such condition as it may apply to any other Borrower or
Guarantor.
15. Borrowers
and Guarantors confirm and acknowledge that the Loan Documents remain the valid
and binding obligations of Borrowers and Guarantors and in full force and
effect.
16. Borrowers
agree to pay all costs and expenses in connection with the execution and
recordation of this Third Amendment. In addition, Borrowers shall
reimburse Lender for all costs incurred by Lender in connection with Third
Amendment and the transactions contemplated hereby, including without
limitation, the costs of Lender’s counsel, and the costs of foreign
counsel. Nothing herein shall be deemed to waive or limit Borrowers’
obligation to reimburse and indemnify Lender as provided in Section 8.05 of the
Loan Agreement. Borrowers agree to pay Lender on demand a
modification fee of US$139,558 in connection with this Third Amendment, which
fee shall be fully earned and non-refundable.
17. This
Third Amendment may be executed separately by the Loan Parties and Lender in any
number of counterparts, each of which, when so executed and delivered, shall be
deemed to be an original and all of which, taken together, shall constitute but
one and the same instrument.
18. THE
VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS THIRD AMENDMENT SHALL IN ALL
RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
19. Borrowers
and Guarantors, by executing this Third Amendment, hereby confirm and
acknowledge that the amounts owed by them under the Loan Documents are free and
clear of any deductions, offsets, counterclaims or other reductions. Borrowers
and Guarantors further acknowledge that Lender has fully complied with all of
its obligations under the Loan Documents, and hereby waive, release and
discharge Lender from and against any claim, right, demand or cause of action
arising on or before the date of this Third Amendment out of any act or failure
to act by Lender or any breach by Lender of any obligation under or in
connection with the Loan Agreement or any of the other Loan Documents, whether
arising under theories of contract, tort, lender liability or
otherwise.
AMOROS
MARITIME CORP.
/s/
Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
LANCASTER
MARITIME CORP.
/s/ Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
CHATHAM
MARITIME CORP.
/s/ Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
TBS
INTERNATIONAL LIMITED
/s/ Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
SHERWOOD
SHIPPING CORP.
/s/ Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
TBS
HOLDINGS LIMITED
/s/ Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
PRESENT
WHEN THE COMMON SEAL OF
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY,
an
Irish public limited company, was affixed hereto
/s/ Christophil X.
Xxxxxx
By: Christophil
X. Xxxxxx
Title: Attorney
in Fact
AIG
COMMERCIAL EQUIPMENT FINANCE, INC.
By:
/s/ Xxxx
Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Title: Vice
President
