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[EXECUTION COPY]
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this
“Amendment”) dated as
of
January 23, 2007, is by and among (i) ALBEMARLE MARITIME
CORP., ARDEN MARITIME CORP., ASIA-AMERICA OCEAN CARRIERS LTD.,
BIRNAM MARITIME CORP., BRISTOL MARITIME CORP., CHESTER
SHIPPING CORP., DARBY NAVIGATION CORP., DOVER MARITIME CORP.,
FRANKFORT MARITIME CORP., GLENWOOD MARITIME CORP., HANSEN
SHIPPING CORP., HENLEY MARITIME CORP., HUDSON MARITIME CORP.,
KENSINGTON SHIPPING CORP., NEWKIRK NAVIGATION CORP., OLDCASTLE
SHIPPING CORP., RECTOR SHIPPING CORP., REMSEN NAVIGATION
CORP., SHEFFIELD MARITIME CORP., SHERMAN MARITIME CORP.,
STERLING SHIPPING CORP., STRATFORD SHIPPING CORP., VERNON
MARITIME CORP. and WINDSOR MARITIME CORP., each a corporation
organized under the laws of the Republic of the Marshall
Islands (collectively, the “Borrowers” and, each
individually, a “Borrower”), (ii) EXETER SHIPPING
CORP., a corporation organized under the laws of the Republic
of the Marshall Islands (the “New Borrower”),
(iii) TBS INTERNATIONAL LIMITED, a corporation formed under
the laws of Bermuda (“Holdings”), (iv) TBS
SHIPPING SERVICES INC., a New York corporation, as
administrative borrower (the “Administrative
Borrower”), (v) each lender from time to time party
hereto (collectively, the “Lenders” and
individually, a “Lender”), and (vi) BANK OF
AMERICA, N.A., as administrative agent (in such capacity, the
“Administrative Agent”), Swing Line Lender and L/C
Issuer.
WHEREAS ,
the Borrowers, Holdings, the Administrative Borrower, the Lenders
and theAdministrative Agent are parties to that certain Credit
Agreement dated as of July 31, 2006 (as amended and in effect from
time to time, the “Credit Agreement”), pursuant to
which the Lenders have agreed, upon certain terms and conditions,
to make loans and otherwise extend credit to the
Borrowers;
WHEREAS ,
the Administrative Borrower has requested, and the Administrative
Agent and the Lenders have agreed, on the terms and conditions set
forth herein, that New Borrower shall become a
“Borrower” under the Credit Agreement on the Amendment
No. 1 Effectiveness Date (as hereinafter defined);
WHEREAS ,
the Borrowers, Holdings, the Lenders and the Administrative Agent
have agreed, on the terms and conditions set forth herein, to amend
certain provisions of the Credit Agreement; and
WHEREAS ,
capitalized terms which are used herein without definition and
which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
NOW, THEREFORE, in
consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrowers, the New Borrower, the Lenders
and the Administrative Agent hereby agree as follows:
§1.
Amendments to Section 1.01 of the Credit
Agreement.
| (a) |
Section
1.01 of the Credit Agreement is hereby amended by adding the
following new defined terms in the appropriate alphabetical
order:
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“Amendment No. 1” means
Amendment No. 1 to Credit Agreement, dated as of January 23, 2007,
among the Borrowers, Exeter Shipping Corp., as a new Borrower,
Holdings, the Administrative Borrower, the Lenders and the
Administrative Agent.
“Amendment No. 1
Effective Date” means the date on which the conditions
precedent to Amendment No. 1 have been satisfied.
“Original Term Loan” has
the meaning specified in the definition of “Term
Facility”.
“Term Loan Increase” has
the meaning specified in the definition of “Term
Facility”.
(b)
Section 1.01 of the Credit Agreement is hereby amended by deleting
the definitions of “Applicable Percentage” and
“Term Facility” in their entirety and substituting
therefor the following new definitions in the appropriate
alphabetical order:
“Applicable Percentage” means
(a) in respect of the Term Facility, with respect to any Term
Lender at any time, the percentage (carried out to the ninth
decimal place) of the Term Facility (whether the Original Term Loan
or the Term Loan Increase) represented by (i) on or prior to the
Closing Date, such Term Lender’s Term Commitment to make the
Original Term Loan at such time, (ii) on the Amendment No. 1
Effective Date, such Term Lender’s Term Commitment to make
the Term Loan Increase at such time and (iii) thereafter, the
principal amount of such Term Lender’s Term Loans at such
time, and (b) in respect of the Revolving Credit Facility, with
respect to any Revolving Credit Lender at any time, the percentage
(carried out to the ninth decimal place) of the Revolving Credit
Facility represented by such Revolving Credit Lender’s
Revolving Credit Commitment at such time. If the commitment of each
Revolving Credit Lender to make Revolving Credit Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, or if the Revolving
Credit Commitments have expired, then the Applicable Percentage of
each Revolving Credit Lender in respect of the Revolving Credit
Facility shall be determined based on the Applicable Percentage of
such Revolving Credit Lender in respect of the Revolving Credit
Facility most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender in
respect of each Facility is set forth opposite the name of such
Lender on Schedule 2.01(a) or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as
applicable.
“Term Facility” means,
at any time, (a) the Term Loan advanced to the Borrowers on the
Closing Date in the original principal amount of $75,000,000
pursuant to Section 2.01(a) (the “Original Term Loan”),
(b) the Term Loan advanced to the Borrowers on the Amendment No. 1
Effective Date in the original principal amount of $5,000,000
pursuant to Section 2.01(a) (the “Term Loan Increase”)
and (c) thereafter, the aggregate principal amount of the Term
Loans of all Term Lenders outstanding at such time.
§2.
Amendment to Section 2.01 of the Credit Agreement.
Section
2.01(a) of the
Credit
Agreement is hereby amended by deleting the first sentence
therein and substituting therefore the following new
sentence:
“ Subject
to the terms and conditions set forth herein, each Term Lender
severally agrees to make a single loan to the Borrowers on the
Closing Date in an amount not to exceed such Term Lender
’ s
Applicable Percentage of the Original Term Loan; and in addition,
each Term Lender severally agrees to make an additional loan to the
Borrowers on the Amendment No. 1 Effective Date in an amount not to
exceed such Term Lender
’ s
Applicable
Percentage
of the Term Loan Increase.
”
§3.
Amendment to Section 2.07 of the Credit Agreement.
Section
2.07(a) of the Credit Agreement is hereby amended by deleting the
table set forth therein in its entirety and substituting therefor
the following new table:
|
Date
|
|
|
Amount
|
|
|
March
31, 2007
|
|
$
|
5,044,642.85
|
|
|
June
30, 2007
|
|
$
|
5,044,642.85
|
|
|
September
30, 2007
|
|
$
|
5,044,642.85
|
|
|
December
31, 2007
|
|
$
|
5,044,642.85
|
|
|
March
31, 2008
|
|
$
|
5,044,642.85
|
|
|
June
30, 2008
|
|
$
|
5,044,642.85
|
|
|
September
30, 2008
|
|
$
|
5,044,642.85
|
|
|
December
31, 2008
|
|
$
|
5,044,642.85
|
|
|
March
31, 2009
|
|
$
|
5,044,642.85
|
|
|
June
30, 2009
|
|
$
|
5,044,642.85
|
|
|
September
30, 2009
|
|
$
|
5,044,642.85
|
|
|
December
31, 2009
|
|
$
|
5,044,642.85
|
|
|
March
31, 2010
|
|
$
|
5,044,642.85
|
|
|
June
30, 2010
|
|
$
|
5,044,642.95
|
|
§4.
Amendment to Schedule 2.01(a
). Schedule
2.01(a) to the Credit Agreement is hereby amended and restated in
its entirety by Schedule 2.01(a) attached hereto as Exhibit
A.
§5.
Limited Consent and Acknowledgments.
(a)
(i)
Notwithstanding the notice requirements set forth in Section
2.14 of the Credit Agreement, the Administrative Agent and the
Lenders hereby consent, on a one-time basis, to the
designation of Exeter Shipping Corp. as a Borrower under the
Credit Agreement, such designation to be effective on the
Amendment No. 1 Effective Date. The foregoing limited consent
and acknowledgment does not establish a custom, course of
dealing or conduct among the Administrative Agent, the
Lenders, the Borrowers or any other Loan Party.
(ii)
New Borrower hereby acknowledges and agrees, as of the
Amendment No. 1 Effective Date, to be bound as a Borrower by
all of the terms and conditions of the Credit Agreement with
the same full force and effect and to the same extent as each
of the other Borrowers. New Borrower further agrees, as of the
Amendment No. 1 Effective Date, that each reference in the
Credit Agreement or in any of the other Loan Documents to a
“Borrower” shall also mean and be a reference to
New Borrower.
(b)
Notwithstanding
Section 7.15 of the Credit Agreement to the contrary, the
Administrative Agent and the Lenders hereby consent, on a
one-time basis, to the amendment of the Organization Documents
of TBS Logistics, Ltd. for the sole purpose of changing such
entity’s name from TBS Logistics, Ltd. to Mercury Marine
Ltd. Promptly upon the effectiveness of such name change, the
Administrative Borrower shall deliver to the Administrative
Agent evidence of such name change. The foregoing limited
consent and acknowledgment does not establish a custom, course
of dealing or conduct among the Administrative Agent, the
Lenders, the Borrowers or any other Loan Party.
§6.
Representations and Warranties
. Holdings
and the Borrowers (including, for the avoidance of doubt, New
Borrower) hereby represent and warrant to the Administrative Agent
as follows:
6.1
Representation and Warranties in the Credit
Agreement.
The
representations and warranties of Holdings and the Borrowers
(including, for the avoidance of doubt, New Borrower) contained in
the Credit Agreement were true and correct in all material respects
as of the date when made and continue to be true and correct in all
material respects on the date hereof except for (a) representations
or warranties which expressly relate to an earlier date in which
case such representations and warranties shall be true and correct,
in all material respects, as of such earlier date, or (b)
representations or warranties which are no longer true as a result
of a transaction expressly permitted by the Credit
Agreement.
6.2
Ratification, Etc.
Except
as expressly amended hereby, the Credit Agreement is hereby
ratified and confirmed in all respects and shall continue in full
force and effect. The Credit Agreement shall, together with this
Amendment, be read and construed as a single agreement. All
references in the Credit Agreement or any related agreement or
instrument shall hereafter refer to the Credit Agreement as amended
hereby.
6.3
Authority, Etc.
The
execution and delivery by Holdings and the Borrowers (including,
for the avoidance of doubt, New Borrower) of this Amendment and the
performance by Holdings and the Borrowers of all of its agreements
and obligations under the Credit Agreement, as amended hereby, are
within Holdings and each Borrower’s corporate authority and
have been duly authorized by all necessary corporate action on the
part of Holdings and such Borrower.
6.4
Enforceability
. This
Amendment and the Credit Agreement, as amended hereby, constitute
the legal, valid and binding obligations of Holdings and the
Borrowers (including, for the avoidance of doubt, New Borrower) and
are enforceable against Holdings and the Borrowers in accordance
with their terms, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of,
creditors’ rights and except to the extent that availability
of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding
may be brought.
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