EXECUTION VERSION
FIRST SUPPLEMENT TO CREDIT AGREEMENT
FIRST SUPPLEMENT TO CREDIT AGREEMENT, dated as of February 1, 2005 (as
amended, supplemented and otherwise modified from time to time, this
"Amendment"), to the Amended and Restated Credit Agreement (as amended,
supplemented and otherwise modified from time to time, the "Agreement") dated as
of June 1, 2004 and amended and restated as of February 1, 2005, in each case
among Xxxxxx Maritime Corp., a company existing under the laws of the Xxxxxxxx
Islands (together with its successors and assigns, "Xxxxxx"), Xxxxxx Maritime
Corp., a company existing under the laws of the Xxxxxxxx Islands (together with
its successors and assigns, "Xxxxxx"), Xxxxx Maritime Corp., a company existing
under the laws of the Xxxxxxxx Islands (together with its successors and
assigns, "Arden"), Oldcastle Shipping Corp., a company existing under the laws
of the Xxxxxxxx Islands (together with its successors and assigns, "Oldcastle"
and together with Xxxxxx, Xxxxxx, and Arden and each other Person which may
hereafter execute and deliver a supplement thereto in form and substance
satisfactory to the Agent and the Lenders, each a "Borrower" and together the
"Borrowers"), TBS International Limited, a company existing under the laws of
Bermuda, as Guarantor (together with its successors and assigns, "TBS" or the
"Guarantor"), GMAC Commercial Finance LLC, a Delaware limited liability company,
("GMAC CF") and each other financial institution which may hereafter execute and
deliver an Assignment and Acceptance with respect to this Supplement pursuant to
Section 10.11 of the Agreement (any one individually, a "Lender", and
collectively, the "Lenders"), and GMAC CF, as administrative agent on behalf of
the Lenders (when acting in its capacity as administrative agent under this
Supplement or under any other Transaction Document, herein referred to, together
with any successor administrative agent, as the "Agent").
PRELIMINARY STATEMENT
WHEREAS, the Lenders may, in their sole discretion and on terms and
conditions acceptable to the Lenders, make Additional Loans available to the
Borrowers for the purpose of acquiring, directly or through one or more
Wholly-Owned Subsidiaries of the Guarantor, one or more additional Vessels.
WHEREAS, Oldcastle has become a "Borrower" and a "Credit Party" under the
Agreement and the other Transaction Documents and has assumed all of the
obligations of a "Borrower" and a "Credit Party" thereunder.
WHEREAS, Oldcastle and the other Borrowers desire to, jointly and
severally, obtain an Additional Loan from the Lenders in an aggregate amount up
to Seven Million Five Hundred Thousand Dollars ($7,500,000) to acquire the Taino
Maiden registered under the Panamanian flag at the port of Manila, The
Philippines, under Official Number 8866 (together with any share or interest
therein and her engines, boilers, machinery, masts, boats, anchors, cables,
chains, rigging, tackle, apparel, furniture, equipment, spare parts, gear,
outfit, fuel, consumable or other stores, belongings and all other appurtenances
thereunto appertaining or belonging, and any and all additions, improvements and
replacements hereafter made in, on or to said vessel, or any part thereof, or in
or to the equipment and appurtenances aforesaid and appurtenances whether on
board or not and whether now owned or hereafter acquired, the "Taino Maiden").
WHEREAS, in order to induce the Lenders to make such Additional Loan to the
Borrowers, the Guarantor wishes to confirm its agreement to guarantee the
Obligations of the Borrowers hereunder and under the other Transaction
Documents, including, without limitation, any and all Obligations concerning the
Taino Maiden.
WHEREAS, the Borrowers have agreed to grant to the Agent on its behalf and
on the behalf of the Lenders a first priority, perfected security interest in
the Collateral (including, without limitation, the Taino Maiden to secure such
Additional Loan and the other Obligations under the Agreement and the other
Transaction Documents.
WHEREAS, the Lenders are willing to make such Additional Loan in an amount
up to Seven Million Five Hundred Thousand Dollars ($7,500,000) pursuant to this
Supplement and upon the terms and subject to the conditions set forth herein and
the other Transaction Documents and in reliance on the representations and
warranties set forth herein and the other Transaction Documents.
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for good and valuable consideration, the receipts and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein, but not otherwise defined herein shall have
the meanings assigned to such terms in the Agreement. All terms defined in this
Supplement shall have the defined meanings when used in any agreement,
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. Article I of the Agreement shall apply, mutatis mutandis, to
this Supplement.
ARTICLE II
ADDITIONAL LOAN
(a) The Borrowers have irrevocably delivered a Drawdown Request to the
Agent at least two (2) Business Days prior to the Drawdown Date specified
therein and such Drawdown Request is attached hereto as Annex A. Each Lender,
relying upon each of the representations and warranties of the Credit Parties in
this Supplement and the other Transaction Documents (made as of the date hereof
except for those that expressly relate to a particular date) and the guaranty of
the Guarantor, hereby severally and not jointly agrees with each Borrower that,
upon satisfaction of the conditions precedent set forth in Article III hereof
and subject to and upon the terms and conditions of this Supplement, it will, on
the Drawdown Date specified in the attached Drawdown Request, make an Additional
Loan in the principal amount of Seven Million Five Hundred Thousand Dollars
($7,500,000) available to Oldcastle and the other Borrowers to finance the
purchase of the Taino Maiden. Such Additional Loan shall be in an aggregate
amount not to exceed each Lender's Loan Commitment ratably with the other
Lenders according to their respective Loan Commitments.
(b) The Borrowers shall pay principal of and interest on such Additional
Loan on each Payment Date. Each Borrower shall repay such Additional Loan and
all other outstanding
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Loans (subject to such reduction and prepayments as hereinafter set forth)
together with all Obligations then due and payable on the Maturity Date.
(c) Such Additional Loan shall bear interest on the outstanding principal
amount thereof and, subject to the terms of this Agreement relating to
prepayments of Loans and the acceleration of maturities, such interest shall be
due on each Payment Date and on the Maturity Date at a rate per annum equal to
the daily average Floating Interest Rate for the period from the date when made
and continued until paid in full. The Floating Interest Rate for such Additional
Loan shall be the rate per annum equal to the sum of (x) the Adjusted LIBOR for
the related Interest Period, plus (y) three and seven-tenths percent (3.70%).
(d) The Additional Loan Commitment in respect of such Additional Loan shall
be permanently reduced on each Additional Loan Reduction Date in accordance with
Schedule 1 hereto. If, on any Payment Date, the outstanding principal amount of
such Additional Loan and the other Loans as of such date exceeds the Aggregate
Loan Commitment (as scheduled to be reduced on such Payment Date), then the
Borrowers shall, on such Payment Date, make a mandatory repayment of the Loans
equal to the Reduction Amount.
(e) As long as no Default or Event of Default has occurred and is
continuing, each Borrower shall have the right, upon sixty (60) days prior
written notice to the Agent and the Lenders, to prepay on any Payment Date the
aggregate outstanding principal balance (but not less than the entire aggregate
outstanding principal balance, subject to the next succeeding sentence) of all
Loans together with the Make-Whole Amount therefor. With the prior written
consent of the Agent and as long as no Default or Event of Default has occurred
and is continuing, Oldcastle shall have the right to prepay on any Payment Date
the outstanding principal balance of the Additional Loan, together with the
Make-Whole Amount therefor. For purposes of determining the Make-Whole Amount
for the Additional Loan, "Make-Whole Amount" shall mean a prepayment premium
equal to (i) three percent (3.0%) of the principal amount prepaid if prepaid
during the period from the Drawdown Date specified in Annex A hereto to the
first anniversary of such Drawdown Date, (ii) two percent (2.0%) of the
principal amount prepaid if prepaid during the period from the first anniversary
of such Drawdown Date to the second anniversary of such Drawdown Date, (iii) one
percent (1.0%) of the principal amount prepaid if prepaid during the period from
the second anniversary of such Drawdown Date to the third anniversary of such
Drawdown Date, and (iv) zero percent (0.0%) of the principal amount prepaid if
prepaid after the third anniversary of such Drawdown Date.
(f) Upon issuance of the Additional Loan Note representing such Additional
Loan, the Agent shall register GMAC Commercial Finance LLC and its successors
and assigns as the registered holder of such Additional Loan Note in the
Register. The Agent is irrevocably authorized by the Borrowers to endorse such
Additional Loan Note and the Agent's record shall be conclusive absent manifest
error; provided, however, that the failure of the Agent to make, or an error in
making, any such recordation or; notation with respect to such Additional Loan
shall not limit or otherwise affect the Obligations of the Borrowers hereunder,
thereunder or under the Transaction Documents.
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ARTICLE III
CONDITIONS TO DRAWDOWN
The obligation of the Lenders to make an Additional Loan hereunder
available to any Borrower under this Supplement shall be expressly subject to
the following conditions precedent (except that condition (b)(xiii) of this
Article III shall be a condition subsequent):
(a) the Agent shall have received the following documents in form and
substance satisfactory to the Agent and its legal advisor:
(i) copies, certified as true and complete by an officer of each
Credit Party, of the resolutions of each Credit Party evidencing approval
of this Supplement, the Additional Loan Note and the other Transaction
Documents to which it is a party or by which it is bound and authorizing an
appropriate officer or officers or attorney-in-fact or attorneys-in-fact to
execute the same on its behalf, or other evidence of such approvals and
authorizations;
(ii) copies, certified as true and complete by an officer of each
Credit Party, of all documents evidencing any other necessary action
(including actions by such parties thereto other than the Credit Parties as
may be required by the Agent), approvals or consents with respect to the
Transaction Documents;
(iii) copies, certified as true and complete by an officer of
Oldcastle, of the certificate of incorporation and bylaws or the
certificate of formation and operating agreement (or equivalent
instruments) thereof;
(iv) certificate of the Secretary of the Guarantor certifying that it
legally and beneficially owns, directly all of the issued and outstanding
Equity Interests of Technotrade, that Technotrade legally and beneficially
owns, directly all of the issued and outstanding Equity Interests of
Xxxxxxxxx and that Xxxxxxxxx legally and beneficially owns directly all of
the issued and outstanding Equity Interests of each of the Borrowers, and
that such Equity Interests are free and clear of any liens, claims, pledges
or other encumbrances whatsoever;
(v) certificate of the Secretary of Oldcastle, certifying as to the
record ownership of all of its issued and outstanding Equity Interests;
(vi) certificates of the jurisdiction of organization of each Borrower
as to the good standing thereof;
(vii) an executed copy of xxxx of sale for the Vessel; and
(viii) each pooling agreement to which Oldcastle or TBS is a party or
the Taino Maiden is subject, and each management agreement or technical
agreement to which Oldcastle or TBS is a party or the Taino Maiden is
subject that affects or relates to, or may affect or relate to, the Taino
Maiden, and each charter to which Oldcastle or TBS is a party or the Taino
Maiden is subject that affects or relates to, or may affect or relate to,
Taino Maiden;
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(b) the Agent shall have received evidence satisfactory to the Agent and
its legal advisor that:
(i) the Taino Maiden is in the sole and absolute ownership of
Oldcastle as set forth in Schedule 4.20 to the Agreement and duly
registered in the name of Oldcastle under the flag of an Approved
Jurisdiction, unencumbered, save and except for the Mortgage recorded
against it and Permitted Encumbrances;
(ii) (A) the Mortgage on the Taino Maiden has been properly filed and
recorded under the laws of Panama and constitutes a first priority ship
mortgage effective against third parties, subject only to Permitted
Encumbrances and (B) the Filipino Bareboat Charters have been properly
recorded under the laws of the Philippines and each Approved Jurisdiction
has consented to the dual-flagging of each Vessel in the Philippines;
(iii) except as otherwise disclosed to the Agent in writing, the Taino
Maiden is classed in the highest classification and rating for vessels of
the same age and type with the respective classification society as set
forth in Schedule 4.20 to the Agreement without any outstanding conditions
or recommendations affecting class except as set forth in Schedule 4.22 to
the Agreement;
(iv) each Person that may have a Lien on the Taino Maiden has
subordinated its Lien to the Lien of the Agent;
(v) all necessary governmental or regulatory approvals, licenses and
authorities which are necessary to the operation of the Taino Maiden have
been obtained from each applicable Governmental Authority;
(vi) the Taino Maiden is insured in accordance with the provisions of
the related Mortgage and the requirements thereof in respect of such
insurances have been complied with;
(vii) evidence (in form and substance satisfactory to the Agent) of
the actual purchase price of the Taino Maiden;
(viii) an SSY evaluation of the Taino Maiden, by a marine surveyor
designated by the Agent, as of a date not more than ninety days prior to
Drawdown Date specified in the Drawdown Request attached hereto and a
satisfactory review of the Taino Maiden by the Lender's asset manager;
(ix) with respect to the Taino Maiden, a legal, valid, binding and
enforceable Filipino Bareboat Charter between Xxxxxx and Viking, Memorandum
of Three Party Agreement by and among Viking, Xxxxxx and PacRim and an
assignment of such Filipino Bareboat Charter, such Memorandum of Three
Party Agreement and any other charter in respect of the Taino Maiden;
(x) an acknowledged Notice (as defined in the Assignment of Earnings
and Insurances) from Viking;
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(xi) a Safety Management Certificate and Document of Compliance
pursuant to Section 6.20(b);
(xii) an original Certificate of Ownership and Encumbrance; and
(xiii) within thirty (30) days from the Drawdown Date for the
Additional Loan, a survey and inspection report on the Taino Maiden that is
satisfactory to the Agent in its sole discretion;
(c) each Borrower shall have duly executed and delivered this Supplement,
the Agreement, the Additional Loan Note, the Initial Loan Note and the other
Transaction Documents to which it is a party, TBS shall have duly executed and
delivered this Agreement, the Assignment of Earnings and Insurances, the
Security Documents and the other Transaction Documents to which it is a party,
Xxxxxxxxx will have executed the Pledge Agreement and each other Transaction
Document to which it is a party; and the Liners, PacRim, Transworld Cargo
Carriers S.A., TBS Shipping Services Inc. and Roymar Ship Management, Inc. shall
have executed and delivered the Assignment of Earnings and Insurances.
(d) Xxxxxxxxx shall have delivered certificates representing the Equity
Interests subject to the Pledge Agreement to the Agent, together with executed
and undated stock powers with respect thereto, and all other documents required
to be delivered pursuant to the Pledge Agreement.
(e) Oldcastle shall each have duly executed and delivered the following
documents:
(i) the Mortgage with respect to the Taino Maiden;
(ii) an Assignment of Earnings and Insurances with respect to the
Taino Maiden;
(iii) Uniform Commercial Code Financing Statements for filing with the
appropriate jurisdictions necessary to perfect the security interest of the
Agent for the benefit of the Lenders in and to the Collateral; and
(iv) such other documents as may be required to perfect the security
interest of the Agent, on behalf of the Lenders, in the Collateral in such
jurisdictions as may be appropriate;
(f) the Agent shall have received a certificate from an Executive Officer
of each of the Borrowers and the Guarantor to the effect that each of the
Borrowers and the Guarantor are in compliance with the conditions precedent set
forth in this Supplement and the Agreement, that the representations and
warranties of each of the Borrowers and the Guarantor are true and correct in
all material respects on and as of the date of the Additional Loan is made
hereunder as though such representations and warranties were made on and as of
such date (except in the case of any representation or warranty that expressly
speaks as to an earlier date), no event has occurred or will occur as a result
of the making of the Additional Loan that constitutes or will constitute a
Default or an Event of Default and the aggregate principal amount of all
outstanding
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Loans (after giving effect to the making of such Additional Loan) will not
exceed the Aggregate Loan Commitment;
(g) the Agent shall have received evidence that no Credit Party or any of
its Subsidiaries is subject to any Environmental Claim which could reasonably be
expected to result in a Material Adverse Change;
(h) the Agent shall have received payment in full of all fees and expenses
due on or before the Restatement Date to the Agents and the Lenders, or such
fees and expenses shall be paid directly from the Additional Loan proceeds on
the Restatement Date;
(i) the Agent shall have received evidence satisfactory to the Agent and to
its legal advisor that, save for the liens created by the Mortgages and the
Assignments of Earnings and Insurances, there ate no liens, charges or
encumbrances of any kind whatsoever on the Taino Maiden or on their respective
earnings except for Permitted Encumbrances and, with respect to the other
Collateral, there are no liens, charges or encumbrances of any kind whatsoever;
(j) the Agent and the Lenders shall have received the favorable written
opinions of New York counsel to the Borrowers and the Guarantor dated the date
such Additional Loan is made and in form and substance satisfactory to the Agent
and its legal advisors, regarding certain corporate matters, enforceability,
perfection and priority of security interests, and other matters as are
customary for transactions to those described in the Transaction Documents;
(k) the Agent and the Lenders shall have received a favorable written
opinion of Panamanian counsel to the Borrowers, dated the date such Additional
Loan is made and in form and substance satisfactory to the Agent and its legal
advisors, regarding perfection and priority of the mortgage and security
interest of the Agent in the Taino Maiden and certain corporate matters and
enforceability of those Transaction Documents governed by the laws of Panama;
(l) Oldcastle shall have successfully acquired and possess good and
marketable title to the Taino Maiden (subject to Permitted Encumbrances);
(m) there shall have occurred no event that could result in a Material
Adverse Change, or prospect of material change in any Credit Party's structure,
ownership, financial condition or operating trends since the Closing Date; and
(n) the Agent shall have received any additional opinions, documents,
appraisals, affidavits and/or certificates of one or more of the Borrowers, the
Guarantor or any other Person as it may reasonably require.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Credit Party represents and warrants that:
(a) the Agent has received a complete and irrevocable Drawdown Request in
accordance with the terms of Section 2.02 of the Agreement;
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(b) that the representations and warranties set forth herein, in the
Drawdown Request attached hereto, Article IV of the Agreement and the other
Transaction Documents to which it is a party or is bound are true, correct and
complete on and as of the date of such Drawdown Request and will be true and
correct on and as of the Drawdown Date specified in such Drawdown Request as if
made on such date (unless, in each case, such representation and warranty is
expressly limited to an earlier date);
(c) no change in any applicable laws, regulations, rules or in the
interpretation thereof shall have occurred which make it unlawful for any Credit
Party to make any payment as required under the terms of the Transaction
Documents;
(d) there are no, and there have not been any, amounts on deposit in the
Reinvestment Account since the Closing Date;
(e) after giving effect to the borrowing made pursuant to such Drawdown
Request, the sum of the outstanding Loans will not exceed the Aggregate Loan
Commitment;
(f) the Credit Parties have performed all agreements contained in the
Transaction Documents requited to be performed on or prior to the date thereof;
(g) no proceeding is pending which would prohibit consummation of the
transactions, contemplated by the Transaction Documents; and
(h) no Default or Event of Default has occurred and is continuing.
ARTICLE V
MISCELLANEOUS
(a) Ratification of Agreement. As supplemented by this Supplement and the
Drawdown Request attached as Annex 1 hereto, the Agreement (including, without
limitation, the Guarantor's obligations under Article VIII of the Agreement) is
in all respects ratified and confirmed and the Agreement as so supplemented by
this Supplement and the Drawdown Request attached as Annex 1 hereto shall be
read, taken and construed as one and the same instrument. Unless otherwise
modified hereby, all terms and conditions of the Agreement shall apply to this
Supplement, including, without limitation, Sections 11.01, 11.04, 11.07, 11.22
and 11.26 of the Agreement.
(b) Survival of Agreement. All covenants, agreements, representations and
warranties made herein and in the certificates, documents and/or instruments
delivered pursuant hereto or a Transaction Document shall survive the making of
the Loans and the execution and delivery of the Notes and shall continue in full
force and effect so long as the Obligations remain outstanding; provided that
any indemnity or reimbursement obligations of a Borrower or the Guarantor shall
survive any termination of this Supplement.
(c) Governing Law. This Supplement shall be governed by and interpreted in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law (except for Section 5-1401 and Section 5-1402 of
the New York General Obligations Law).
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(d) Costs and Expenses. In addition to the Agent's rights under Section
10.05 of the Agreement, the Guarantor and the Borrowers agree, whether or not
the transactions contemplated hereby shall be consummated, to pay or reimburse
the Agent within five (5) Business Days after demand for all costs, fees and/or
expenses incurred by the Agent, including, without limitation, any and all
costs, fees and/or expenses in connection with the evaluation, development,
preparation, negotiation, delivery, administration, execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Supplement, any other Transaction Document and any other
documents or instruments prepared in connection herewith (including any
commitment letter and related documents preceding this Supplement) or therewith,
and the consummation of the transactions contemplated hereby and thereby,
including, in the case of any of the foregoing, attorney fees and expenses
incurred by the Agent with respect hereto and thereto;
(e) Waivers. No waiver of any of the provisions of this Supplement (1)
shall be valid unless evidenced by a writing executed by each party to be bound
thereby, (2) shall be deemed or shall constitute a waiver of any other provision
of this Supplement or any other provisions hereof (whether or not similar), or
(c) shall constitute a continuing waiver unless otherwise expressly provided. No
delay on the part of the Agent or any Lender in exercising any right or remedy
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise of any power or right or remedy preclude other or further exercise
thereof or the exercise of any other right or remedy. No notice to or demand on
any Borrower or the Guarantor in any case shall entitle it to any other or
further notice or demand in the same or similar circumstances.
(f) Separability of Provisions; Obligations Several. If any provision of
this Supplement or any other Transaction Document should be deemed invalid under
any applicable law, such provision shall be void and of no effect and shall
cease to be a part of this Supplement or other Transaction Document without
affecting the remaining provisions, which shall remain in full force and effect.
In the event that this Supplement, the Notes, any Transaction Document or any of
the documents or instruments which may from time to time be delivered hereunder
or thereunder or any provision hereof or thereof shall be deemed invalidated by
present or future law of any Governmental Authority of competent jurisdiction
and binding authority, or if any third party shall fail or refuse to recognize
any of the powers granted to the Agent hereunder when it is sought to exercise
them, this shall not affect the validity and/or enforceability of all or any
other parts of this Supplement, the Notes, any Transaction Document or such
documents or instruments and, in any such case, the Credit Parties covenant and
agree that, on demand, they will execute and deliver such other and further
agreements and/or documents and/or instruments and do such things as the Agent
in its sole discretion may deem to be necessary or advisable to carry out the
true intent of this Supplement and of the obligations secured hereby.
(g) Counterparts. This Supplement and any amendment, waivers, consents or
supplements hereto may be executed in several counterparts, any by different
parties hereto in different counterparts, each of which when so executed shall
constitute an original, but all of which, when taken together, shall constitute
but one Agreement.
(h) Entire Agreement. This Supplement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or
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written, of the parties, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof
except as specifically set forth or incorporated herein.
(i) Headings. Section and paragraph headings and the table of contents are
not to be considered part of this Supplement, are included solely for
convenience and are not intended to be full or accurate descriptions of the
contents thereof. Sections and paragraphs mentioned by number only are the
respective sections and paragraphs of this Supplement. The use of the terms
"herein", "hereunder", "hereof", and like terms shall be deemed to refer to this
entire Supplement and not merely to the particular provision in which the term
is contained, unless the context clearly indicates otherwise.
(j) Gender and Number. Words importing a particular gender mean and include
every other gender and words importing the singular number mean and include the
plural number and vice-versa.
(k) Exhibits. Exhibits, Schedules and Annexes to this Supplement are an
integral part of this Supplement.
(l) No Third Parties Benefited. This Supplement is made and entered into
for the sole protection and legal benefit of the Guarantor, each Borrower, the
Lenders, the Agent, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Supplement or any of
the other Transaction Documents. Neither the Agent nor any Lender shall have any
obligation to any Person not a party to this Supplement or other Transaction
Documents.
(m) TIME OF THE ESSENCE. TIME SHALL BE OF THE ESSENCE FOR THE CLOSING OF
THIS SUPPLEMENT AND EACH OF THE OTHER TRANSACTION DOCUMENTS AND THE FUNDING OF
THE INITIAL LOANS. THE CLOSING OF THIS SUPPLEMENT AND THE OTHER TRANSACTION
DOCUMENTS AND THE FUNDING OF THE INITIAL LOANS SHALL OCCUR NO LATER THAN
FEBRUARY 28, 2005.
(n) Amendment Fee. Notwithstanding the Lenders' election to not require a
fee pursuant to Section 11.04(c) of the Agreement, the parties hereto hereby
confirm that the Lenders (in their sole discretion) may require each Credit
Party to jointly and severally pay a fee not less than 0.05% of the then
outstanding principal balance of the Loans in connection with any waiver,
amendment, supplement or other modification to the Agreement or any other
Transaction Document. The Lenders' election in connection with the execution and
delivery of this Supplement is effective only in this particular instance and
for the specific purpose for which it is made and shall not be construed as
either a waiver of any right, power or privilege or a course of dealing giving
rise to any obligation or condition with respect to any subsequent
modifications, consents or waivers.
(o) Additional Loan Commitment. Each Credit Party hereby acknowledges and
agrees that, after giving effect to the transactions contemplated by this
Amendment, the remaining Additional Loan Commitment will not be advanced to any
Borrower until execution
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and delivery of a supplement to the Agreement in form and substance satisfactory
to the Agent and the Lenders.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
GMAC COMMERCIAL FINANCE LLC. as Agent
and Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: XXXXX XXXXXXX
Title: VICE PRESIDENT
FIRST SUPPLEMENT TO CREDIT AGREEMENT
TBS INTERNATIONAL LIMITED,
the Guarantor
By: /s/ Xxxx XxXxxxx
-----------------------------------
Name: Xxxx XxXxxxx
Title: Attorney in fact
XXXXXX MARINE CORP.,
as a Borrower
By: /s/ Xxxx XxXxxxx
-----------------------------------
Name: Xxxx XxXxxxx
Title: Attorney in fact
XXXXXX MARITIME CORP.,
as a Borrower
By: /s/ Xxxx XxXxxxx
-----------------------------------
Name: Xxxx XxXxxxx
Title: Attorney in fact
ARDEN MARITIME CORP.,
as a Borrower
By: /s/ Xxxx XxXxxxx
-----------------------------------
Name: Xxxx XxXxxxx
Title: Attorney in fact
OLDCASTLE SHIPPING CORP.,
as a Borrower
By: /s/ Xxxx XxXxxxx
-----------------------------------
Name: Xxxx XxXxxxx
Title: Attorney in fact
FIRST SUPPLEMENT TO CREDIT AGREEMENT
ANNEX 1
DRAWDOWN REQUEST
