Dated: as of April 30, 2010 BEDFORD MARITIME CORP. BRIGHTON MARITIME CORP. HARI MARITIME CORP. PROSPECT NAVIGATION CORP. HANCOCK NAVIGATION CORP COLUMBUS MARITIME CORP. and WHITEHALL MARINE TRANSPORT CORP. as joint and several Borrowers TBS...
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.6
Dated: as
of April 30, 2010
BEDFORD
MARITIME CORP.
BRIGHTON
MARITIME CORP.
HARI
MARITIME CORP.
PROSPECT
NAVIGATION CORP.
XXXXXXX
NAVIGATION CORP
COLUMBUS
MARITIME CORP.
and
WHITEHALL
MARINE TRANSPORT CORP.
as
joint and several Borrowers
TBS
INTERNATIONAL LIMITED
TBS
HOLDINGS LIMITED
and
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY
as
Guarantors
DVB
GROUP MERCHANT BANK (ASIA) LTD.
as
Lender
DVB
GROUP MERCHANT BANK (ASIA) LTD.
as
Facility Agent and Security Trustee
-and-
DVB
BANK SE
THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND
and
NATIXIS
as
Swap Banks
_______________________________________________________
______________________________________________________
Amending
and Supplementing the Loan Agreement dated as of January 16, 2008,
as
amended by a First Amendatory Agreement dated as of March 23, 2009,
a
Second Amendatory Agreement dated as of December 31, 2009, and
a
Third Amendatory Agreement dated as of January 11, 2010
FOURTH
AMENDATORY AGREEMENT dated as of April 30, 2010 (this “Fourth Amendatory
Agreement”)
AMONG
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(1)
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BEDFORD
MARITIME CORP., BRIGHTON MARITIME CORP., HARI MARITIME CORP., PROSPECT
NAVIGATION CORP., XXXXXXX NAVIGATION CORP., COLUMBUS MARITIME CORP. and
WHITEHALL MARINE TRANSPORT CORP., each a corporation organized and
existing under the law of the Republic of The Xxxxxxxx Islands, as joint
and several borrowers (each, a “Borrower” and together,
the “Borrowers”);
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(2)
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TBS
INTERNATIONAL LIMITED (“TBS”), TBS HOLDINGS
LIMITED (“TBSHL”),
each a company organized and existing under the law of Bermuda, and TBS
INTERNATIONAL PUBLIC LIMITED COMPANY (“TBSPLC”), a company
organized and existing under the law of Ireland, as guarantors (each, a
“Guarantor” and
together, the “Guarantors”);
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(3)
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DVB
GROUP MERCHANT BANK (ASIA) LTD., acting through its office at 00 Xxxxxxxx
Xxxx 00-00, Xxxxxxxxx, xx xxxxxx (in such capacity, the “Lender”);
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(4)
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DVB
GROUP MERCHANT BANK (ASIA) LTD., acting through its office at 00 Xxxxxxxx
Xxxx 00-00, Xxxxxxxxx, as facility agent (in such capacity, the “Facility Agent”) for the
Lender and as security trustee (in such capacity, the “Security Trustee”) for
the Lender and the Swap Banks; and
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(5)
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DVB
BANK SE (as successor-in-interest to DVB Bank AG), acting through its
office at Xxxxx xxx Xxxxxxxx 0, 00000 Xxxxxxxxx/Xxxx, Xxxxxxx, THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND, acting through its office at
Head Office, Building B4, Lower Baggot Street, Dublin 2, Ireland, and
NATIXIS, acting through its office at BP 4 - F-75060, Paris Cedex 02,
France, as swap banks (each, a “Swap Bank” and together,
the “Swap
Banks”).
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WITNESSETH
THAT:
WHEREAS, the Borrowers, the
Guarantors, the Lender, the Facility Agent, the Security Trustee, the Swap Banks
and others are parties to a Loan Agreement dated as of January 16, 2008, as
amended by a First Amendatory Agreement dated as of March 23, 2009, a Second
Amendatory Agreement dated as of December 31, 2009 and a Third Amendatory
Agreement dated as of January 11, 2010 (as so amended, the “Loan Agreement”).
WHEREAS, upon the terms and
conditions stated herein, the parties hereto have agreed pursuant to Clause
19.1(b) of the Loan Agreement to amend certain provisions of the Loan
Agreement.
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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Defined
terms. Capitalized terms used but not defined herein shall
have the meaning assigned such terms in the Loan Agreement.
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2
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AMENDMENTS
TO THE LOAN AGREEMENT
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2.1
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Amendments. Pursuant
to Clause 19.1(b) of the Loan Agreement, subject to fulfillment or waiver
of the conditions subsequent stated in Clause 4 below, the parties hereto
agree to amend the Loan Agreement as follows with effect on and from the
date hereof:
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(a)
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The
definition of “Margin” in Clause 1.1 is amended and restated to read as
follows:
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““Margin” means:
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(a)
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5.25
percent per annum for the period of April 30, 2010 through June 30,
2010;
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(b)
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5.75
percent per annum for the period of July 1, 2010 through December 31,
2010;
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(c)
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6.25
percent per annum for the period of January 1, 2011 through June 30,
2011;
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(d)
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6.75
percent per annum for the period of July 1, 2011 through December 31,
2011; and
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(e)
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7.25
percent per annum for the period of January 1, 2012 through the Maturity
Date;”
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(b)
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Clause
10.3 is amended and restated to read as
follows:
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“10.3 Collateral
Maintenance Ratio.
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(a)
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If,
at any time, the aggregate Fair Market Value of the Ships shall be less
than 167% of the unpaid principal amount of the Loan (the “Collateral Maintenance
Ratio”), the Facility Agent shall have the right to require the
Borrowers, within 30 Business Days of the date of the written demand of
the Facility Agent, to either (x) prepay the Loan in such amount as may be
necessary to cause such aggregate Fair Market Value of the Ships to equal
or exceed 167% of the unpaid principal amount of the Loan or (y) provide
such additional Collateral as may be acceptable to the Facility Agent in
its sole reasonable discretion so that aggregate Fair Market Value of the
Ships and such additional Collateral equals or exceeds 167% of the unpaid
principal amount of the Loan, and the Borrowers hereby agree to comply
with any such written demand made by the Facility
Agent.
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(b)
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Notwithstanding
the requirements of Clause 7.9, any prepayment made pursuant to this
Clause 10.3 shall be applied to the remaining repayment installments of
principal and interest in direct order of maturity. For the
avoidance of doubt, any prepayment made pursuant to this Clause 10.3 may
not be re-borrowed and shall be subject to the requirements of Clause 7.8,
provided that any
prepayment made pursuant to this Clause 10.3 shall not be subject to a
prepayment penalty under Clause
7.8(c).”
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3
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RELEASE
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3.1
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Release.
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(a)
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In
consideration of the Lender, the Facility Agent, the Security Trustee and
the Swap Banks entering into this Fourth Amendatory Agreement, each of the
Obligors acknowledges and agrees
that:
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(i)
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such
Obligor does not have any claim or cause of action against any Credit
Party (or any of such Credit Party’s respective directors, officers,
employees or agents);
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(ii)
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such
Obligor does not have any offset right, counterclaim or defense of any
kind against any of its respective Secured Liabilities to any Credit
Party; and
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(iii)
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each
of the Credit Parties has heretofore properly performed and satisfied in a
timely manner all of their respective obligations to the
Obligors.
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(b)
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To
eliminate any possibility that any past conditions, acts, omissions,
events, circumstances or matters would impair or otherwise adversely
affect any Credit Party’s rights, interests, contracts, collateral
security or remedies, each Obligor unconditionally releases, waives and
forever discharges:
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(i)
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any
and all liabilities, obligations, duties, promises or indebtedness of any
kind of any Credit Party to such Obligor, except the obligations to be
performed by any Credit Party on or after the date hereof as expressly
stated in this Fourth Amendatory Agreement, the Loan Agreement and the
other Finance Documents; and
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(ii)
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all
claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether arising at law or in equity, whether known or
unknown, which such Obligor might otherwise have against any Credit Party
or any of its directors, officers, employees or
agents,
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in either
case (i) or (ii), on account of any past or presently existing condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of
action, defense, circumstance or matter of any kind.
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4
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CONDITIONS
SUBSEQUENT
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4.1
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Conditions
subsequent. The effectiveness of this Fourth Amendatory
Agreement shall be subject to the following conditions subsequent being
completed to the reasonable satisfaction of the Facility Agent on or
before 5:00 p.m. New York time on May 31, 2010 (the “Conditions Subsequent
Deadline”):
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(a) The
Facility Agent shall have received:
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(i)
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an
original of this Fourth Amendatory Agreement, duly executed by the parties
hereto;
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(ii)
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a
copy of the Amendment No. 3 and Waiver to the Bank of America Credit
Facility Agreement, duly executed by the parties thereto, certified as of
a date reasonably near the date of this Fourth Amendatory Agreement by a
director or the president or the secretary (or equivalent officer) of TBS
as being a true and correct copy
thereof;
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(iii)
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an
original addendum to the Mortgage in respect of each of the Ships, each
such addendum to be in form and substance satisfactory to the Facility
Agent and duly executed by the parties thereto, together with documentary
evidence that the relevant Mortgage addendum has been duly recorded
according to the laws of the Republic of Liberia and that a cautionary
notice with respect to such Mortgage addendum has been filed in the
Philippine Bareboat Registry;
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(iv)
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copies
of any amendment to the constitutional documents, made subsequent to
January 11, 2010, of each Obligor, certified as of a date reasonably near
the date of this Fourth Amendatory Agreement by a director or the
president or the secretary (or equivalent officer) of such party as being
a true and correct copy thereof, or,
if there were none, a statement to that effect by a director or the
president or the secretary (or equivalent officer) of such party,
certified as of a date reasonably near the date of this Fourth Amendatory
Agreement;
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(v)
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copies
of certificates dated as of a date reasonably near the date of this Fourth
Amendatory Agreement, certifying that each Obligor is duly incorporated
(or formed) and in goodstanding under the laws of such party’s
jurisdiction of incorporation (or formation) and, in respect of each
Borrower, that such Borrower is duly qualified and in goodstanding as a
foreign maritime entity under the law of the Republic of
Liberia;
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(vi)
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copies
of resolutions of the directors (or equivalent governing body) (and where
required, the shareholders or equivalent equity holders) of each Obligor
authorizing the execution of each of this Fourth Amendatory Agreement and
authorizing named officers or attorneys-in-fact to execute such documents,
certified as of a date reasonably near the date of this Fourth Amendatory
Agreement by a director or the president or the secretary (or equivalent
officer) of such party as being a true and correct copy
thereof;
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(vii)
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the
original of any power of attorney under which this Fourth Amendatory
Agreement and any document to be executed pursuant to this Fourth
Amendatory Agreement is to be executed on behalf of an
Obligor;
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(viii)
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copies
of all consents which any of the Obligors requires to enter into, or make
any payment or perform any of its obligations under or in connection with
the transactions contemplated by this Fourth Amendatory Agreement, each
certified as of a date reasonably near the date of this Fourth Amendatory
Agreement by a director or the president or the secretary (or equivalent
officer) of such party as being a true and correct copy thereof, or
certification by such director, president or secretary (or equivalent
officer) that no such consents are
required;
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(ix)
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a
certificate of each Obligor, signed on behalf of such party by a director
or the president or the secretary (or equivalent officer) of the
Guarantor, dated as of a date reasonably near the date of this Fourth
Amendatory Agreement, certifying as
to:
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1.
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the
absence of any proceeding for the dissolution or liquidation of such
party;
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2.
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the
veracity in all material respects of the representations and warranties
contained in the Loan Agreement, as amended hereby, as though made on and
as of the date of this Fourth Amendatory Agreement, except for (A)
representations or warranties which expressly relate to an earlier date in
which case such representations and warranties shall be true and correct,
in all material respects, as of such earlier date or (B) representations
or warranties which are no longer true as a result of a transaction
expressly permitted by the Loan
Agreement;
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3.
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the
absence of any material misstatement of fact in any information provided
by any of the Obligors to the Facility Agent or the Lender or the Swap
Banks since January 16, 2008 and that such information did not omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and
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4.
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the
absence of any event occurring and continuing, or resulting from this
Fourth Amendatory Agreement, that constitutes a Potential Event of Default
or an Event of Default;
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(x)
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a
favorable opinion of Xxxxxxxx & Xxxxxxx, New York, Liberian and
Xxxxxxxx Islands counsel to the Borrowers, in form, scope and substance
satisfactory to the Credit Parties;
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(xi)
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a
favorable opinion of Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel to TBS
and TBSHL, in form, scope and substance satisfactory to the Credit
Parties; and
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(xii)
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a
favorable opinion of Xxxxxx Xxx, Irish counsel to TBSPLC, in form, scope
and substance satisfactory to the Credit
Parties;
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(b)
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No
Event of Default or Potential Event of Default shall have occurred and be
continuing and there shall have been no material adverse change in the
financial condition, operations or business prospects of the Obligors
since the date of the Loan Agreement;
and
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(c)
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The
Obligors shall have paid to the Facility Agent an amendment fee of
$139,374.00.
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4.2
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Waiver of conditions
subsequent. The Facility Agent, with the consent of the
Lender and the Swap Banks, may waive one or more of the conditions
referred to in Clause 4.1 provided that the
Obligors deliver to the Facility Agent a written undertaking to satisfy
such conditions within ten (10) Business Days after the Facility Agent
grants such waiver (or such longer period as the Facility Agent may
specify).
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4.3
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Failure to complete conditions
subsequent. If the Obligors fail to complete all or any
of the conditions subsequent required by Clause 4.1(a) by the Conditions
Subsequent Deadline, and the Facility Agent has not granted a waiver
pursuant to Clause 4.2 hereof, the Obligors acknowledge and agree that
such failure shall be deemed an Event of Default under the Loan Agreement
and that the Credit Parties shall be entitled to all rights and to
exercise all remedies afforded to them under the terms of the Loan
Agreement (all of which are expressly
reserved).
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5
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EFFECT
OF AMENDMENTS AND WAIVERS
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5.1
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References. Each
reference in the Loan Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import, and each reference to the
“Loan Agreement” in any of the other Finance Documents, shall mean and
refer to the Loan Agreement as amended
hereby.
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5.2
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Effect of amendments and
waivers. Subject to the terms of this Fourth Amendatory
Agreement, with effect on and from the date hereof (subject to fulfillment
or waiver of the conditions subsequent stated in Clause 4 above) the Loan
Agreement shall be, and shall be deemed by this Fourth Amendatory
Agreement to have been, amended upon the terms and conditions stated
herein and, as so amended, the Loan Agreement shall continue to be binding
on each of the parties to it in accordance with its terms as so
amended. In addition, each of the Finance Documents shall be,
and shall be deemed by this Fourth Amendatory Agreement to have been,
amended as follows:
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(a)
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the
definition of, and references throughout each of such Finance Documents
to, the “Loan Agreement” and any of the other Finance Documents shall be
construed as if the same referred to the Loan Agreement and those Finance
Documents as amended or supplemented by this Fourth Amendatory Agreement;
and
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(b)
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by
construing references throughout each of the Finance Documents to “this
Agreement”, “hereunder” and other like expressions as if the same referred
to such Finance Documents as amended and supplemented by this Fourth
Amendatory Agreement.
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5.3
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No other amendments or waivers;
ratification. Except as amended, waived or temporarily
waived hereby, all other terms and conditions of the Loan Agreement and
the other Finance Documents remain unchanged and in full force and effect
and are hereby ratified and confirmed in all respects. Without
limiting the foregoing, each of the Guarantors acknowledges and agrees
that the Guaranty remains in full force and effect. The
Obligors acknowledge and agree that the Loan Agreement shall, together
with this Fourth Amendatory Agreement, be read and construed as a single
agreement.
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6
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REPRESENTATIONS
AND WARRANTIES
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6.1
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Authority. The
execution and delivery by each of the Obligors of this Fourth Amendatory
and the performance by each Obligor of all of its agreements and
obligations under the Loan Agreement, as amended hereby, are within such
Obligor’s corporate authority and have been duly authorized by all
necessary corporate action on the part of such
Obligor.
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6.2
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Enforceability. This
Fourth Amendatory Agreement and the Loan Agreement, as amended hereby,
constitute the legal, valid and binding obligations of each of the
Obligors party hereto and are enforceable against such Obligors in
accordance with their terms, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting generally the enforcement of, creditors’ rights and except
to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which
any proceeding may be brought.
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7
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MISCELLANEOUS
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7.1
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Governing
law. THIS FOURTH AMENDATORY
AGREEMENT 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).
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7.2
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Counterparts. This
Fourth Amendatory Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same
instrument.
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7.3
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Severability. Any
provision of this Fourth Amendatory Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating or affecting the validity or enforceability of such provision
in any other jurisdiction.
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7.4
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Payment of
expenses. The Obligors agree to pay or reimburse each of
the Credit Parties for all reasonable expenses in connection with the
preparation, execution and carrying out of this Fourth Amendatory
Agreement and any other document in connection herewith or therewith,
including but not limited to, reasonable fees and expenses of any counsel
whom the Credit Parties may deem necessary or appropriate to retain, any
duties, registration fees and other charges and all other reasonable
out-of-pocket expenses incurred by any of the Credit Parties in connection
with the foregoing.
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7.5
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Headings and
captions. The headings captions in this Fourth
Amendatory Agreement are for convenience of reference only and shall not
define or limit the provisions
hereof.
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[SIGNATURE
PAGES FOLLOW]
WHEREFORE,
the parties hereto have caused this Fourth Amendatory Agreement to be executed
as of the date first above written.
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BEDFORD
MARITIME CORP., as Borrower
By:/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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DVB
GROUP MERCHANT BANK (ASIA) LTD., as Lender
By:
/s/ Xxxxxxx xxx
Xxxx
Xxxxxxx xxx Xxxx
Attorney-in-Fact
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BRIGHTON
MARITIME CORP., as Borrower
By:/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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DVB
GROUP MERCHANT BANK (ASIA) LTD., as Facility Agent and Security
Trustee
By:
/s/ Xxxxxxx xxx
Xxxx
Xxxxxxx xxx Xxxx
Attorney-in-Fact
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HARI
MARITIME CORP., as Borrower
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
PROSPECT
NAVIGATION CORP., as Borrower
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Swap Bank
By:
/s/ Xxxx
Xxxxxxx
Xxxx Xxxxxxx
Head of Maritime
Industries
By:
/s/ Xxxx
Xxxxx
Xxxx Xxxxx
Senior Manager
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XXXXXXX
NAVIGATION CORP., as Borrower
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
COLUMBUS
MARITIME CORP., as Borrower
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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NATIXIS,
as Swap Bank
By:
/s/ Xxxxxx
Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Authorized Signatory
By:
/s/ Xxxxxx
Xxxxxxxx
Xxxxxx Xxxxxxxx
Authorized Signatory
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WHITEHALL
MARINE TRANSPORT CORP.,
as
Borrower
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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DVB
BANK SE, as Swap Bank
By:
/s/ Xxxx Xxxxxxxx
Xxxxx
Xxxx Xxxxxxxx Xxxxx
Attorney-in-Fact
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TBS
INTERNATIONAL LIMITED,
as
Guarantor
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
President
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TBS
HOLDINGS LIMITED,
as
Guarantor
By:
/s/ Xxxxxxx X.
Xxxx
Xxxxxxx X. Xxxx
Vice-President
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TBS
INTERNATIONAL PUBLIC LIMITED COMPANY,
as
Guarantor
By:
/s/ Xxxxxxxxx X.
Xxxxxx
Xxxxxxxxx X. Xxxxxx
Executive
Vice-President
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