Date: as of December 31, 2009 RUSHMORE SHIPPING LLC as Owner BEEKMAN SHIPPING CORP. as Charterer and TBS INTERNATIONAL LIMITED as Guarantor THIRD AMENDATORY AGREEMENT Amending and Supplementing the Bareboat Charter Party dated as of January 24, 2007,...
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.9
Date: as
of December 31, 2009
RUSHMORE
SHIPPING LLC
as
Owner
XXXXXXX
SHIPPING CORP.
as
Charterer
and
TBS
INTERNATIONAL LIMITED
as
Guarantor
_______________________________________________________
THIRD
AMENDATORY AGREEMENT
______________________________________________________
Amending
and Supplementing the Bareboat Charter Party dated as of January 24, 2007, as
amended and supplemented by the First Amendatory Agreement thereto dated as of
March 26, 2009 and by the Second Amendatory Agreement thereto dated as of April
16, 2009, in respect of the Panamanian registered and Philippine bareboat
registered LAGUNA BELLE
THIRD
AMENDATORY AGREEMENT dated as of December 31, 2009 (this “Agreement”)
AMONG
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(1)
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RUSHMORE
SHIPPING LLC, a Xxxxxxxx Islands limited liability company, as Owner (the
“Owner”);
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(2)
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XXXXXXX
SHIPPING CORP., a Xxxxxxxx Islands corporation, as bareboat Charterer (the
“Charterer”); and
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(3)
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TBS
INTERNATIONAL LIMITED, a Bermuda company, as guarantor (the “Guarantor”);
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WITNESSETH
THAT:
WHEREAS, the Owner, the
Charterer and the Guarantor are parties to a bareboat charter party dated as of
January 24, 2007, as amended and supplemented by the First Amendatory Agreement
thereto dated as of March 26, 2009 and by the Second Amendatory Agreement
thereto dated as of April 16, 2009 (as so amended and supplemented, the “Charter”).
WHEREAS, the obligations of
the Charterer under the Charter are guaranteed by the Guarantor pursuant to
Clause 53 of the Charter.
WHEREAS, the waivers granted
pursuant to Clause 2.3 of the First Amendatory Agreement in respect of Clause
35(3)(a) of the Charter will expire as of 12:01 am on January 1, 2010 (the
“Specified Charterparty Event
of Default”).
WHEREAS, upon the terms and
conditions stated herein, the parties hereto have agreed to:
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(a)
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amend
certain provisions of the Charter;
and
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(b)
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extend
the temporary waiver of compliance by the Guarantor with the requirements
of Clauses 35(3)(a) of the Charter during the Waiver
Period.
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NOW, THEREFORE, in
consideration of the premises set forth above, the covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
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1
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DEFINITIONS
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1.1
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Defined
terms. Capitalized terms used but not defined herein
shall have the meaning assigned such terms in the Charter. In
addition:
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“Waiver Period” means the
period commencing on the date hereof and ending on the earliest to occur of (a)
April 1, 2010 at 12:00 a.m. Eastern Time and (b) the occurrence after the
commencement of the Waiver Period of any Charterparty Event of Default (other
than the Specified Charterparty Event of Default)
including, without limitation, any failure to comply with the provisions of this
Third Amendatory Agreement.
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2
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AMENDMENTS
TO THE CHARTER
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2.1
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Amendments. The
parties hereto agree to amend the Charter as follows with effect on and
from the date hereof:
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(a)
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Clause
31(1) is amended and restated to read as
follows:
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“(1) The
Charterer shall pay to the Owner for the hire of the Vessel monthly Charter Hire
in United States currency, at the rates set forth below, commencing on and from
the Delivery Date. Hire to continue until the date and hour when the
Vessel is redelivered by the Charterer:
(a) Months
1 –
24: $10,500.00
per day Charter Hire
(b) Months
25 –
36: $10,000.00
per day Charter Hire
(c) Months
36 –
47: $8,041.01
per day Charter Hire
(d) Months
48 –
59: $7,908.64
per day Charter Hire
(e) Months
60 –
71: $7,826.72
per day Charter Hire
(f) Months
72 –
84: $7,747.53
per day Charter Hire”
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(b)
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Clause
35(3) is amended and restated to read as
follows:
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“(3)
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For
the duration of the Charter Period, and until all Charter Party
Obligations have been fulfilled and satisfied, the Guarantor
covenants:
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(a) to
be in compliance with:
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(i)
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either
(x) the financial covenants set forth in Section 7.13 of the Amended and
Restated Credit Agreement dated as of March 26, 2008, as amended or
supplemented from time to time, among Albemarle Maritime Corp., Arden
Maritime Corp., Avon Maritime Corp., Birnam Maritime Corp., Bristol
Maritime Corp., Xxxxxxx Shipping Corp., Cumberland Navigation Corp., Xxxxx
Navigation Corp., Dover Maritime Corp., Xxxxx Shipping Corp., Exeter
Shipping Corp., Frankfort Maritime Corp., Glenwood Maritime Corp., Xxxxxx
Shipping Corp., Xxxxxxx Navigation Corp., 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. and other persons named
therein from time to time as Borrowers, (ii) the Guarantor as Holdings,
(iii) TBS Shipping Services Inc. as Administrative Borrower, (iv) each
lender from time to time party thereto as Lenders and (v) Bank of America,
N.A. as Administrative Agent, Swing Line Lender and L/C Issuer, upon the
terms and conditions of which a $267.5 million credit facility was made
available to the Borrowers named therein (the “Bank of America Credit Facility
Agreement”) or (y) such other financial covenants temporarily
permitted under the Bank of America Credit Facility Agreement in lieu of
the financial covenants set forth in Section 7.13 thereof pursuant to any
amendment or waiver executed in respect of the Bank of America Credit
Facility Agreement; and
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(ii)
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clauses
10.2(h)(ii) and 10.2(i)(i) of the Loan Agreement dated as of January 16,
2008, as amended by the First Amendatory Agreement thereto dated as of
March 23, 2009 and the Second Amendatory Agreement thereto dated as of
December 31, 2009, among (i) Bedford Maritime Corp., Brighton Maritime
Corp., Hari Maritime Corp., Prospect Navigation Corp., Xxxxxxx Navigation
Corp., Columbus Maritime Corp. and Whitehall Marine Transport Corp. as
Borrowers, (ii) the Guarantor as Guarantor, (iii) the banks and financial
institutions named therein as Lenders, (iv) DVB Group Merchant Bank (Asia)
Ltd. as Facility
Agent and Security Trustee, (v) The Governor and Company of the Bank of
Ireland (“BOI”) as
Payment Agent, (vi) DVB Bank SE, BOI and Natixis as Swap Banks and (vii)
Mount Washington LLC as Arranger;
and
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(b)
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to
subordinate any and all claims of whatever nature which the Guarantor has
or may hereafter have against the Charterer to any and all claims of
whatever nature which the Owner has or may hereafter have against the
Charterer during the Charter Period and until all Charter Party
Obligations have been fulfilled.”
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3
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TEMPORARY
WAIVER OF COMPLIANCE WITH CLAUSE
35(3)
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3.1
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Temporary
waiver. The parties hereto agree to extend temporarily
the waiver of compliance by the Guarantor with the requirements of Clause
35(3) of the Charter, as amended above, during the Waiver Period (and for
the avoidance of doubt the Guarantor’s compliance with the requirements of
Clause 35(3) of the Charter, as amended above, shall be reinstated
immediately upon the expiration of the Waiver Period and shall be required
at all times thereafter).
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3.2
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Covenants. In
consideration of the temporary waiver made in Clause 3.1, during the
Waiver Period the Guarantor shall
not:
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(a)
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for
each calendar month ending on or after January 1, 2010, permit Qualified
Cash of the Loan Parties to be less than the greater of (i) $25,000,000 or
(ii) $40,000,000 minus
any prepayment of Indebtedness made during such calendar month as
permitted after giving effect to Amendment No. 2 to the Bank of America
Credit Facility Agreement, of which a minimum average balance of
$9,375,000 in any such calendar month shall be deposited with Bank of
America, N.A.;
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(b)
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permit
the Consolidated Interest Charges Coverage Ratio as of the four fiscal
quarters ending December 31, 2009 to be less than 1.75:1.00;
and
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(c)
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prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof, in any manner, or make any payment in violation of any
subordination terms of, any Indebtedness,
except:
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(i)
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the
prepayment of the Credit Extensions in accordance with the terms of the
Bank of America Credit Facility
Agreement;
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(ii)
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regularly
scheduled or required repayments, mandatory prepayments or redemptions of
Indebtedness described on Schedule 7.02 of the Bank of America Credit
Facility Agreement in respect of the RBS Credit Facility Agreement, the
Credit Suisse Credit Facility Agreement, the AIG Credit Facility
Agreement, the Commerzbank Credit Facility Agreement and the Berenberg
Credit Facility Agreement; and
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(iii)
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other
prepayments of Indebtedness described on Schedule 7.02 the Bank of America
Credit Facility Agreement in respect of the RBS Credit Facility Agreement,
the Credit Suisse Credit Facility Agreement, the AIG Credit Facility
Agreement, the Commerzbank Credit Facility Agreement and the Berenberg
Credit Facility Agreement,
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provided that (A) any such
prepayment of Indebtedness corresponds to an amortization payment due during the
Waiver Period and that was otherwise due under such loan facility without giving
effect to any amendment or modification occurring after the Amendment No. 1
Effective Date and (B) all such prepayments of Indebtedness shall occur on or
after January 4, 2010.
For
purposes of (a), (b) and (c) above, all capitalized terms not otherwise defined
herein shall have the meaning assigned to such terms in the Bank of America
Credit Facility Agreement.
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4
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MISCELLANEOUS
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4.1
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References. Each
reference in the Charter to “this Charter”, “hereunder”, “hereof”,
“herein” or words of like import shall mean and refer to the Charter as
amended hereby.
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4.2
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Effect of this
Agreement. Subject to the terms of this Agreement, with
effect on and from the date hereof, the Charter shall be, and shall be
deemed by this Agreement to have been, amended upon the terms and
conditions stated herein and, as so amended, the Charter shall continue to
be binding on each of the parties to it in accordance with its terms as so
amended.
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4.3
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No other amendments or
waivers. Except as amended or waived hereby, all other
terms and conditions of the Charter remain unchanged and the Charter is
hereby ratified and confirmed. Without limiting the foregoing,
the Guarantor acknowledges and agrees that its guarantee under Clause 53
of the Charter, as amended hereby, is hereby ratified and
confirmed.
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4.4
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Governing
Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed in accordance
with, Clause 26.2 of the Charter.
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4.5
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Counterparts. This
Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same
instrument.
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4.6
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Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating or affecting
the validity or enforceability of such provision in any other
jurisdiction.
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4.7
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Payment of
Expenses. The parties hereto agree to pay or reimburse
each of DVB Bank SE and DVB Bank America N.V. (collectively, the “Credit Parties”) for all
reasonable expenses in connection with the preparation, execution and
carrying out of this Agreement and any other document in connection
herewith or therewith, including but not limited to, reasonable fees and
expenses of any counsel whom the Credit Parties may deem necessary or
appropriate to retain, any duties, registration fees and other charges and
all other reasonable out-of-pocket expenses incurred by any of the Credit
Parties in connection with the
foregoing.
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19112834
v1
WHEREFORE,
the parties hereto have caused this Third Amendatory Agreement to be executed as
of the date first above written.
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RUSHMORE
SHIPPING LLC, as Owner
By:
/s/ AFSpomebe /s/ Asandro
Van Aerde
Name:
AF Spomebe
Asandro Van Aerde
Title:
Secretary
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XXXXXXX SHIPPING
CORP., as Charterer
By: /s/ Xxxxxxx X.
Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
President / Director
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TBS
INTERNATIONAL LIMITED, as Guarantor
By: /s/ Xxxxxxx X.
Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
President / Director
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CONSENT
Pursuant
to Clause 10.2(k) of the Loan Agreement dated as of January 25, 2007, as
amended, among Adirondack Shipping LLC and Rushmore Shipping LLC as Borrowers,
the banks and financial institutions named therein as Lenders and DVB Bank
America N.V. as Facility Agent and Security Trustee, the Facility Agent, for and
on behalf of, and upon the instruction of, the Majority Lenders (as defined in
said Loan Agreement), hereby consents and agrees to the foregoing
Agreement.
DVB BANK
AMERICA N.V.,
as
Facility Agent for and on behalf of the Majority Lenders
By: /s/ Xxxx Xxxxxxxx
Sarma
Xxxx Xxxxxxxx
Sarma
Attorney-in-Fact
