Date 27 March 2009 ARGYLE MARITIME CORP. CATON MARITIME CORP. DORCHESTER MARITIME CORP. LONGWOODS MARITIME CORP. McHENRY MARITIME CORP. SUNSWYCK MARITIME CORP. as Joint and Several Borrowers – and – TBS INTERNATIONAL LIMITED as Corporate Guarantor –...
TBS INTERNATIONAL LIMITED
& SUBSIDIARIES EXHIBIT
10.7
Date 27
March 2009
ARGYLE
MARITIME CORP.
XXXXX
MARITIME CORP.
DORCHESTER
MARITIME CORP.
LONGWOODS
MARITIME CORP.
XxXXXXX
MARITIME CORP.
SUNSWYCK
MARITIME CORP.
as Joint
and Several Borrowers
– and
–
TBS
INTERNATIONAL LIMITED
as
Corporate Guarantor
– and
–
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
– and
–
THE
ROYAL BANK OF SCOTLAND PLC
as
Mandated Lead Arranger
– and
–
THE
ROYAL BANK OF SCOTLAND PLC
as
Bookrunner, Agent, Security Trustee and Swap Bank
relating
to
a term
loan facility of US$150,000,000
INDEX
Clause Page
THIS AGREEMENT is made on 27
March 2009
BETWEEN
|
(1)
|
ARGYLE MARITIME CORP.,
XXXXX MARITIME
CORP., DORCHESTER
MARITIME CORP., LONGWOODS MARITIME
CORP., XxXXXXX
MARITIME CORP. and SUNSWYCK MARITIME CORP.,
each a company incorporated in the Xxxxxxxx Islands whose registered
office is at Trust Company Complex, Ajeltake Island, Majuro, Xxxxxxxx
Islands MH96960 as Joint
and Several Borrowers;
|
|
(2)
|
TBS INTERNATIONAL
LIMITED, a company incorporated in Bermuda whose principal office
is at Suite 306, Commerce Building, One Xxxxxxxx Xxxx, Xxxxxxxx XX00,
Xxxxxxx as Corporate Guarantor;
|
|
(3)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1 as Lenders;
|
|
(4)
|
THE ROYAL BANK OF SCOTLAND
PLC as Mandated
Lead Arranger;
|
|
(5)
|
THE ROYAL BANK OF SCOTLAND PLC
as Bookrunner;
|
|
(6)
|
THE ROYAL BANK OF SCOTLAND PLC
as Agent;
|
|
(7)
|
THE ROYAL BANK OF SCOTLAND PLC
as Security
Trustee; and
|
|
(8)
|
THE ROYAL BANK OF SCOTLAND PLC
as Swap
Bank.
|
BACKGROUND
|
(A)
|
By
a loan agreement dated 29 March 2007 as amended by a side letter dated 26
March 2008 and made between (i) the Borrowers, (ii) the Lenders, (iii) the
Mandated Lead Arrangers, (iv) the Bookrunner, (v) the Agent, (vi) the
Security Trustee and (vii) the Swap Bank, the Lenders have made
available to the Borrowers a facility of
US$150,000,000.
|
|
(B)
|
By
a master agreement dated 29 March 2007 and made between the Borrowers
and the Swap Bank the Borrowers may enter into certain
transactions.
|
|
(C)
|
This
Agreement sets out the terms and conditions on which the Creditor Parties
agree, with effect on and from the Effective Date, at the request of the
Security Parties to waive certain covenants in the Loan Agreement on the
terms and conditions set out herein and to the consequential amendment of
the Loan Agreement, the Master Agreement and the other Finance Documents
in connection with those matters.
|
IT IS AGREED as follows:
|
1
|
INTERPRETATION
|
|
1.1
|
Defined
expressions. Words and expressions defined in the Loan
Agreement, the Master Agreement and the other Finance Documents shall have
the same meanings when used in this Agreement unless the context otherwise
requires.
|
|
1.2
|
Definitions. In
this Agreement, unless the contrary intention
appears:
|
“Amendment Fee Letter” means
the letter dated on or about the date of this Agreement between the Agent and
the Borrowers setting out the fees referred to in Clause 20.1(b), (c), (d), (e),
(f) and (g);
“Corporate Guarantee
Supplement” means a letter supplemental to the Corporate Guarantee
executed or to be executed by the Corporate Guarantor in favour of the Security
Trustee substantially in the form set out in Appendix 1;
“Covenant Waiver Period” means
the period commencing on the date of this Agreement and ending on 1 January 2010
(or such later date as the Agent may with the authorisation of the Lenders,
agree with the Borrowers);
“Effective
Date” means the date on which the conditions precedent in
Clause 3 are satisfied;
“Loan
Agreement” means the loan agreement referred to in Recital (A); and
“Master Agreement” means the
master agreement referred to in Recital (B).
|
1.3
|
Application of construction and
interpretation provisions of Loan Agreement. Clauses 1.2
and 1.5 of the Loan Agreement apply, with any necessary modifications, to
this Agreement.
|
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
|
2.1
|
Agreement of the
Lenders. The Lenders agree, subject to and upon the
terms and conditions of this Agreement, to the amendments to the Loan
Agreement, the Master Agreement and the Finance Documents as set out in
Clause 5.
|
|
2.2
|
Agreement of the Creditor
Parties. The Creditor Parties agree, subject to and upon
the terms and conditions of this Agreement, to the consequential amendment
of the Loan Agreement, the Master Agreement and the other Finance
Documents in connection with the matters referred to in Clause 2.1.
|
|
2.3
|
Agreement of the Borrowers and
the Corporate Guarantor. The Borrowers and the Corporate
Guarantor hereby agree to the amendments to the Loan Agreement, the Master
Agreement and the Finance Documents as set out in Clause 5.
|
|
2.4
|
|
3
|
CONDITIONS
PRECEDENT
|
|
3.1
|
|
3.2
|
Conditions
precedent. The conditions referred to in Clause 3.1 are that the Agent shall have received the
following documents and evidence in all respects in form and substance
satisfactory to the Agent and its lawyers on or before 6 April 2009 or
such later date as the Agent may agree with the Borrowers and the other
Security Parties:
|
|
(a)
|
documents
of the kind specified in Schedule 3, Part A, paragraphs 2, 3, 4 and 5 of
the Loan Agreement as amended and supplemented by this Agreement and
updated with appropriate modifications to refer to this Agreement and the
Corporate Guarantee Supplement;
|
|
(b)
|
a
duly executed original of this Agreement and the Corporate Guarantee
Supplement duly executed by the parties to
it;
|
|
(c)
|
evidence
that the provisions of clause 9.1(d) and 9.1(e) of the Loan Agreement, as
amended and supplemented by this Agreement and updated with appropriate
modifications to refer to this Agreement, are complied with both as at the
date of this Agreement and the Effective Date;
and
|
|
(d)
|
any
further opinions, consents, agreements and documents in connection with
this Agreement, the Master Agreement and the Finance Documents which the
Agent may request by notice to the Borrowers and the Security Parties
prior to the Effective Date.
|
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
|
4.1
|
Repetition of Loan Agreement
representations and warranties. The Borrowers represent
and warrant to the Creditor Parties that the representations and
warranties in clause 10 of the Loan Agreement, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to
this Agreement, remain true and not misleading if repeated on the date of
this Agreement and the Effective Date with reference to the circumstances
now and then existing.
|
|
4.2
|
Repetition of Finance Document
representations and warranties. The Borrowers and each
of the Security Parties represent and warrant to the Creditor Parties that
the representations and warranties in the Finance Documents (other than
the Loan Agreement) to which it is a party, as amended and supplemented by
this Agreement and updated with appropriate modifications to refer to this
Agreement, remain true and not misleading if repeated on the date of this
Agreement and the Effective Date with reference to the circumstances now
and then existing.
|
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE
DOCUMENTS
|
|
5.1
|
Specific amendments to Loan
Agreement. With effect on and from the Effective Date
the Loan Agreement shall be, and shall be deemed by this Agreement to be,
amended as follows:
|
|
(a)
|
the
definition of Margin in clause 1.1 shall be deleted and replaced with the
following:
|
“Margin” means in relation to
each Loan three point five per cent. (3.5%) per annum;”;
|
(b)
|
so
that Schedule 5 of the Loan Agreement is deleted and replaced with the
amended schedule appended to this Agreement in Appendix
II;
|
|
(c)
|
clause
8.4(a) shall be amended so that the words “or in the event that a Loan is
being prepaid the amount of that Loan then outstanding” are inserted at
the end;
|
|
(d)
|
a
new clause 8.14 shall be inserted at the end of clause 8 as
follows:
|
|
|
“8.14
|
Prepayment due to
refinancing. In the event that the Borrowers prepay the
Loan Facility or any part thereof as a result of a refinancing arranged by
a financial institution other than the Agent, the Borrowers shall pay to
the Agent (for the account of the Lenders) a prepayment fee of one per
cent. (1%) of the amount being prepaid such prepayment fee to be paid on
the same date as the amount being
prepaid.”;
|
|
(e)
|
so
that the financial covenants set out in paragraphs (a), (b), (c) and (d)
of Schedule 8 and referred to in clause 11.18 shall not apply during the
Covenant Waiver Period and so that on the next succeeding Business Day
following the last day of the Covenant Waiver Period the Borrowers shall
provide a compliance certificate in the form set out in Schedule 9
confirming that the Financial Covenants set out in Schedule 8 as amended
by this Agreement have been complied with during the last financial
quarter;
|
|
(f)
|
so
that during the Covenant Waiver Period the Borrowers and the Corporate
Guarantor undertake to comply with the financial covenants and the
undertakings set out in Schedule 2 of this
Agreement;
|
|
(g)
|
so
that the minimum required security cover set out in clause 15.1 shall be
reduced from One hundred and twenty five per cent. (125%) to One hundred
per cent. (100%) during the Covenant Waiver
Period;
|
|
(h)
|
so
that during the Covenant Waiver Period, the Lenders shall not be required
to make an Advance if the Loans relating to Ships which have not yet been
delivered (but including the Advance being requested by the Borrowers)
exceed 75% of (i) the aggregate Contract Value of the Ships and (ii) the
net realisable value of any additional security provided under the Loan
Agreement as amended by this Agreement and for the purpose of this Clause,
“Contract Value”
shall mean:
|
the
market value of a Ship at any date based on the acquisition price of the rights
and obligations under the Shipbuilding Contract relating to that Ship or a ship
of a similar size and type and due to be delivered at the same time as that Ship
as shown by a valuation prepared as at a date not more than 10 Business Days
previously by an independent international sale and purchase shipbroker which
the Agent has approved for the purpose and after deducting the estimated amount
of usual and reasonable expenses which would be incurred in connection with such
a sale;
|
(i)
|
clauses
20.1 (b) to (g) shall be deleted and replaced with the
following:
|
|
|
“(b)
|
quarterly
in arrears during the period from (and including) 27 March 2009 to the
earlier of (i) the Drawdown Date in relation to the Loan A Delivery
Advance and (ii) 31 May 2009 (or such later date as the Agent, in its sole
and absolute discretion shall agree) and on the last day of that period a
commitment fee at the rate of One point five per cent. (1.5%) per annum on
the undrawn balance of Loan A;
|
|
|
(c)
|
quarterly
in arrears during the period from (and including) 27 March 2009 to the
earlier of (i) the Drawdown Date in relation to the Loan B Delivery
Advance and (ii) 30 November 2009 (or such later date as the Agent, in its
sole and absolute discretion shall agree) and on the last day of that
period a commitment fee at the rate of One point five per cent. (1.5%) per
annum on the undrawn balance of Loan
B;
|
|
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(d)
|
quarterly
in arrears during the period from (and including) 27 March 2009 to the
earlier of (i) the Drawdown Date in relation to the Loan C Delivery
Advance and (ii) 30 April 2010 (or such later date as the Agent, in its
sole and absolute discretion shall agree) and on the last day of that
period a commitment fee at the rate of One point five per cent. (1.5%) per
annum on the undrawn balance of Loan
C;
|
|
|
(e)
|
quarterly
in arrears during the period from (and including) 27 March 2009 to the
earlier of (i) the Drawdown Date in relation to the Loan D Delivery
Advance and (ii) 31 August 2010 (or such later date as the Agent, in its
sole and absolute discretion shall agree) and on the last day of that
period a commitment fee at the rate of One point five per cent. (1.5%) per
annum on the undrawn balance of Loan
D;
|
|
|
(f)
|
quarterly
in arrears during the period from (and including) 27 March 2009 to the
earlier of (i) the Drawdown Date in relation to the Loan E Delivery
Advance and (ii) 30 June 2010 (or such later date as the Agent, in its
sole and absolute discretion shall agree) and on the last day of that
period a commitment fee at the rate of One point five per cent. (1.5%) per
annum on the undrawn balance of Loan
E;
|
|
|
(g)
|
quarterly
in arrears during the period from (and including) 27 March 2009 to the
earlier of (i) the Drawdown Date in relation to the Loan F Delivery
Advance and (ii) 31 October 2010 (or such later date as the Agent, in its
sole and absolute discretion shall agree) and on the last day of that
period a commitment fee at the rate of One point five per cent. (1.5%) per
annum on the undrawn balance of Loan
F”;”
|
|
(j)
|
clause
1.1 shall be amended to include the definition of Amendment Fee
Letter;
|
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(k)
|
the
definition of “Finance Documents” in clause 1.1 of the Loan Agreement
shall be amended to include the Amendment Fee Letter;
and
|
|
(l)
|
the
definitions of “Consolidated Interest Charges Coverage Ratio”,
“Consolidated EBITDA” and “Consolidated Interest Charges” in Schedule 8
shall be deleted and replaced with the
following:
|
““Consolidated Interest Charges
Coverage Ratio” means, at any date of determination, the ratio of (a) the
result of (i) Consolidated EBITDA less (ii) the sums of Federal, State, local
and foreign income taxes paid in cash for the most recently completed
Measurement Period to (b) Consolidated Interest Charges for the most recently
completed Measurement Period.
“Consolidated EBITDA” means, at
any date of determination, an amount equal to Consolidated Net Income of
Holdings and its Subsidiaries on a consolidated basis for the most recently
completed Measurement Period, plus (a) the following to the extent deducted in
calculating such Consolidated Net Income (and without
duplication): (i) Consolidated Interest Charges, (ii) the provision
for Federal, state, local and foreign income taxes payable, (iii) depreciation
and amortization expense, (iv) net losses from the sales of vessels as permitted
under this Agreement and (v) any noncash impairment charges incurred during each
fiscal year of Holdings and its Subsidiaries ending December 31, 2008 and
December 31, 2009 in respect of any of Holdings’ or its Subsidiaries’ goodwill
and Vessels, (in each case of or by Holdings and its Subsidiaries for such
Measurement Period) and minus (b) the following to the extent included in
calculating such Consolidated Net Income, all net gains from the sales of
vessels as permitted under this Agreement (in each case of or by Holdings and
its Subsidiaries for such Measurement Period); provided that, to the extent
characterized as interest on the income statements of Holdings and its
Subsidiaries for such Measurement Period pursuant to FASB Interpretation No. 133
– Accounting for Derivative Instruments and Hedging Activities (June 0000),
xxxxxxx adjustments in connection with any interest rate Swap Contract entered
into by Holdings or any of its Subsidiaries, shall be excluded.
“Consolidated Interest Charges”
means, for any Measurement Period, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest but excluding capitalized
interest on Permitted New Vessel Construction Indebtedness) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, (b) all interest paid or payable with
respect to discontinued operations and (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each
case, of or by Holdings and its Subsidiaries on a consolidated basis for the
most recently completed Measurement Period; provided that, to the extent
characterized as interest on the income statements of Holdings and its
Subsidiaries for such Measurement Period pursuant to FASB Interpretation No. 133
– Accounting for Derivative Instruments and Hedging Activities (June 0000),
xxxxxxx adjustments in connection with any interest rate Swap Contract entered
into by Holdings or any of its Subsidiaries, shall be excluded.”;
|
(m)
|
the
Borrowers and the Corporate Guarantor undertake to provide the Lenders
with the benefit of any additional or more favourable financial covenants
provided to other financing parties under other or future financing
agreements in order that the Lenders shall be treated no less favourably
than any other of the financing parties to the Borrowers or the Corporate
Guarantor by providing details of such financial covenants in order that
appropriate amendments can be made to the Loan Agreement and the relevant
Finance Documents;
|
|
(n)
|
at
the end of the Covenant Waiver Period the parties to this Agreement agree
to review the terms of the Loan Agreement being amended pursuant to this
Agreement and any provisions that may need to be reviewed as a consequence
of these amendments;
|
|
(o)
|
so
that during the Covenant Waiver Period the Corporate Guarantor shall
provide to the Agent as soon as possible but in no event later than 30
days after the end of each calendar month update financial projections
including but not limited to revenues, operating expenses, net income,
cash balances, loan balances, working capital requirements and equity for
the period up to and including 31 December
2011;
|
|
(p)
|
the
definition of, and references throughout to, the Master Agreement and each
Finance Document shall be construed as if the same referred to the Master
Agreement or that Finance Document as amended and supplemented by this
Agreement; and
|
|
(q)
|
by
construing references throughout to “this Agreement”, “hereunder” and other
like expressions as if the same referred to the Loan Agreement as amended
and supplemented by this Agreement.
|
|
5.2
|
Amendments to Master Agreement
and Finance Documents. With effect on and from the
Effective Date, the Master Agreement and each of the Finance Documents
other than the Loan Agreement, shall be, and shall be deemed by this
Agreement to be, amended as
follows:
|
|
(a)
|
the
definition of, and references throughout each of the Finance Documents to,
the Loan Agreement, the Master Agreement and any of the other Finance
Documents shall be construed as if the same referred to the Loan
Agreement, the Master Agreement and those Finance Documents as amended and
supplemented by this Agreement;
|
|
(b)
|
by
construing references throughout the Master Agreement and each of the
Finance Documents to “this Agreement”, “this Deed”, “hereunder” and other
like expressions as if the same referred to the Master Agreement and such
Finance Documents as amended and supplemented by this
Agreement.
|
|
5.3
|
Master Agreement and
Finance Documents to
remain in full force and effect. The Master Agreement
and the Finance Documents shall remain in full force and effect as amended
and supplemented by the amendments to the Finance Documents contained or
referred to in Clause 5.1.
|
|
6
|
FURTHER
ASSURANCES
|
|
6.1
|
Borrowers’ and each Security
Party’s obligation to execute further documents
etc. Each Borrower and each Security Party
shall:
|
|
(a)
|
execute
and deliver to the Security Trustee (or as it may direct) any assignment,
mortgage, power of attorney, proxy or other document, governed by the law
of England or such other country as the Security Trustee may, in any
particular case, specify;
|
|
(b)
|
effect
any registration or notarisation, give any notice or take any other
step;
|
which the
Security Trustee may, by notice to that Borrower or that Security Party, specify
for any of the purposes described in Clause 6.2 or
for any similar or related purpose.
|
6.2
|
Purposes of further
assurances. Those purposes
are:
|
|
(a)
|
validly
and effectively to create any Security Interest or right of any kind which
the Security Trustee intended should be created by or pursuant to the Loan
Agreement or any other Finance Document, each as amended and supplemented
by this Agreement; and
|
|
(b)
|
implementing
the terms and provisions of this
Agreement.
|
|
6.3
|
Terms of further
assurances. The Security Trustee may specify the terms
of any document to be executed by any Borrower or any Security Party under
Clause 6.1, and those terms may include any
covenants, powers and provisions which the Security Trustee considers
appropriate to protect its
interests.
|
|
6.4
|
Obligation to comply with
notice. Any Borrower or any Security Party shall comply
with a notice under Clause 6.1 by the date
specified in the notice.
|
|
6.5
|
Additional corporate
action. At the same time as any Borrower or any Security
Party delivers to the Security Trustee any document executed under Clause
6.1(a), that Borrower or any Security Party
shall also deliver to the Security Trustee a certificate signed by 2 of
that Borrower’s or that Security Party’s directors which
shall:
|
|
(a)
|
set
out the text of a resolution of that Borrower’s or that Security Party’s
directors specifically authorising the execution of the document specified
by the Security Trustee; and
|
|
(b)
|
state
that either the resolution was duly passed at a meeting of the directors
validly convened and held throughout which a quorum of directors entitled
to vote on the resolution was present or that the resolution has been
signed by all the directors and is valid under that Borrower’s or that
Security Party’s articles of association or other constitutional
documents.
|
|
7
|
FEES
AND EXPENSES
|
|
7.1
|
Amendment
fee. The Borrowers shall pay to the Agent an amendment
fee in an amount specified in the Amendment Fee Letter on the date of this
Agreement.
|
|
7.2
|
Expenses. The
provisions of clauses 20.2 to 20.6 of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.
|
|
8
|
COMMUNICATIONS
|
|
8.1
|
General. The
provisions of clause 27 (notices) of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.
|
|
9
|
SUPPLEMENTAL
|
|
9.1
|
Counterparts. This
Agreement may be executed in any number of
counterparts.
|
|
9.2
|
Finance
Documents. This Agreement is a Finance
Document.
|
|
9.3
|
Third party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
10
|
LAW
AND JURISDICTION
|
|
10.1
|
Governing
law. This Agreement and any non-contractual obligations
arising from or in connection with it shall be governed by and construed
in accordance with English law.
|
|
10.2
|
Incorporation of the Loan
Agreement provisions. The provisions of clause 31 (law
and jurisdiction) of the Loan Agreement, shall apply to this
Agreement.
|
THIS AGREEMENT has been duly
executed as a Deed on the date stated at the beginning of this
Agreement.
SCHEDULE
1
LENDERS
|
Lender
|
Lending
Office
|
Commitment
|
|
The
Royal Bank of Scotland plc
|
Shipping
Business Centre
0-00
Xxxxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Fax
No: +
44 207 085 7142
Attn:
Transaction and Portfolio Management
|
$35,000,000
|
|
Citibank,
N.A.
|
000
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx
XX00000
XXX
Fax
No: + 0 000 000 0000
Attn:
Xxxxxxx Xxxxxx
|
$15,000,000
|
|
Landesbank
Hessen-Thüringen Girozentrale
|
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 000000-0000
XXX
Fax
No: x0 000 000 0000
Attn:
Corporate Finance/ Portfolio Management
|
$30,000,000
|
|
Norddeutsche
Landesbank Girozentrale
|
Ship
and Aircraft Finance Department
Xxxxxxxxxxxxxx
00
00000
Xxxxxxxx, Xxxxxxx
Fax
No: x00 000 000 0000
Attn:
International Shipping Group II - Xxxxxxxxx Xxxxxxxx
|
$30,000,000
|
|
Alliance
& Leicester Commercial Finance plc
|
000
Xxxxxxxxx
Xxxxxxxxxx
X0
0XX
Fax
No: + 00 000 000 0000
Attn
Corporate Administration Manager
|
$30,000,000
|
|
Bank
of America, N.A.
|
Bank
of America
000
Xxxxxxx Xxxxxx
Xxxxxx
XX 00000
Fax
No: x000000 0000
Attn:
Transportation Division - Credit Products
|
$10,000,000
|
SCHEDULE
2
FINANCIAL
COVENANTS DURING COVENANT WAIVER PERIOD
The
Borrowers and the Corporate Guarantor undertake to comply with the following
financial covenants and undertakings during the Covenant Waiver
Period:
|
(a)
|
Minimum
Consolidated Interest Charges Ratio. Permit the Consolidated
Interest Charges Coverage Ratio as of the end of the period of
determination indicated below and for such period then ending of Holdings
and its Subsidiaries to be less than the ratio set forth below opposite
such period:
|
|
Period
of Determination
|
Minimum
Consolidated Interest Charges Coverage Ratio
|
|
Two
fiscal quarters ending June 30, 2009
|
1.10:1.00
|
|
Three
fiscal quarters ending September 30, 2009
|
1.35:1.00
|
|
Four
fiscal quarters ending December 31, 2009
|
1.75:1.00
|
|
(b)
|
Minimum
Cash Liquidity. For each calendar month ending on or after the
date hereof, minimum cash maintained by the Borrowers and the Corporate
Guarantor shall be not less than $40,000,000 of
which:
|
|
(i)
|
a
minimum average of $10,000,000 in any calendar month shall be credited to
and continue to be held on an operating account maintained with the Agent
in the name of TBS Pacific Liner, Ltd.;
and
|
|
(ii)
|
$20,000,000
shall be credited to a deposit account to be opened with the Agent and
such sum shall only be available to the Borrowers to be used to pay
instalments due under the Shipbuilding Contracts and which shall reduce as
each such payment is made.
|
|
(c)
|
No
Dividends. As long as no Event of Default has occurred the
Borrowers may pay any dividends to the Corporate Guarantor. The Corporate
Guarantor will not pay any dividend or make any other form of distribution
which it may otherwise have been permitted to make pursuant to clause
11.21 of the Loan Agreement.
|
|
(d)
|
The
Borrowers and the Corporate Guarantor each undertake not to purchase (and
to procure that none of their subsidiaries purchase) any additional
vessels without the prior written consent of the Agent acting on the
instructions of the Majority
Lenders.
|
|
(e)
|
The
Borrowers and the Corporate Guarantor acting individually or together
shall not invest more than $10,000,000 in aggregate in any joint ventures
of which any amounts in excess of $5,000,000 shall require the prior
written consent of the Agent acting on the instructions of the Majority
Lenders.
|
|
(f)
|
The
Borrowers and the Corporate Guarantor shall not permit any new or increase
their existing off balance sheet operating leases, operating lease
payments and payments associated with vessels chartered in for more than 6
months without the prior written consent of the Agent acting on the
instructions of the Majority Lenders. The Borrowers and the
Corporate Guarantor shall be permitted to enter new or increase their
existing off balance sheet operating leases, operating lease payments and
payments associated with vessels chartered in for less than 6 months
provided that they notify the Agent in writing promptly
thereafter.
|
|
(g)
|
The
Borrowers and the Corporate Guarantor shall not permit any new or increase
their existing Financial Indebtedness, as defined in the Loan Agreement,
without the prior written consent of the Agent acting on the instructions
of the Majority Lenders.
|
EXECUTION
PAGES
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BORROWERS
|
||
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EXECUTED as a DEED
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)
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|
by
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)
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ARGYLE
MARITIME CORP.
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)
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acting
by Xxxxx
Xxxx
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)
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/s/ Xxxxx Xxxx
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its
duly authorised
attorney-in-fact
|
)
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in
the presence
of:
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)
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/s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx
Xxxxxxxx
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0
Xxxxxxxxx Xxxxxx
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Xxxxxxxx
Xxxx
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UB
11 1AU
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EXECUTED as a DEED
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)
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by
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)
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XXXXX MARITIME
CORP.
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)
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acting
by Xxxxx
Xxxx
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)
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/s/ Xxxxx Xxxx
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its
duly authorised
attorney-in-fact
|
)
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in
the presence
of:
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)
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/s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx
Xxxxxxxx
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0
Xxxxxxxxx Xxxxxx
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Xxxxxxxx
Xxxx
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UB
11 1AU
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EXECUTED as a DEED
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)
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by
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)
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DORCHESTER MARITIME
CORP.
|
)
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acting
by Xxxxx
Xxxx
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)
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/s/ Xxxxx Xxxx
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its
duly authorised attorney-in-fact
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)
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in
the presence
of:
|
)
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/s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx
Xxxxxxxx
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0
Xxxxxxxxx Xxxxxx
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Xxxxxxxx
Xxxx
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UB
11 1AU
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||
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EXECUTED as a DEED
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)
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by
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)
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LONGWOODS MARITIME
CORP.
|
)
|
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acting
by Xxxxx
Xxxx
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)
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/s/ Xxxxx Xxxx
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its
duly authorised attorney-in-fact
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)
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in
the presence
of:
|
)
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/s/ Xxxxxxxxx Xxxxxxxx
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|
Xxxxxxxxx
Xxxxxxxx
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||
|
0
Xxxxxxxxx Xxxxxx
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||
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Xxxxxxxx
Xxxx
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||
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UB
11 1AU
|
||
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EXECUTED as a DEED
|
)
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|
|
by
|
)
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XxXXXXX
MARITIME CORP.
|
)
|
|
|
acting
by Xxxxx
Xxxx
|
)
|
/s/ Xxxxx Xxxx
|
|
its
duly authorised attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxxxxxx Xxxxxxxx
|
|
Xxxxxxxxx
Xxxxxxxx
|
||
|
0
Xxxxxxxxx Xxxxxx
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||
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Xxxxxxxx
Xxxx
|
||
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UB
11 1AU
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||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
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SUNSWYCK
MARITIME CORP.
|
)
|
|
|
acting
by Xxxxx
Xxxx
|
)
|
/s/ Xxxxx Xxxx
|
|
its
duly authorised attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxxxxxx Xxxxxxxx
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|
Xxxxxxxxx
Xxxxxxxx
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||
|
0
Xxxxxxxxx Xxxxxx
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||
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Xxxxxxxx
Xxxx
|
||
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UB
11 1AU
|
||
|
CORPORATE
GUARANTOR
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
TBS INTERNATIONAL
LIMITED
|
)
|
|
|
acting
by Xxxxx
Xxxx
|
)
|
/s/ Xxxxx Xxxx
|
|
its
duly authorised attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxxxxxx Xxxxxxxx
|
|
Xxxxxxxxx
Xxxxxxxx
|
)
|
|
|
0
Xxxxxxxxx Xxxxxx
|
||
|
Xxxxxxxx
Xxxx
|
||
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UB
11 1AU
|
||
|
LENDERS
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
)
|
|
|
acting
by G.A. Stares
|
)
|
/s/ G.A. Stares |
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ X.X. Xxxxxxx
|
|
X.
X. Xxxxxxx
|
||
|
The
Royal Bank of Scotland Plc
|
||
|
Shipping
Business Centre
|
||
|
0-00
Xxxxx Xxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
CITIBANK,
N.A.
|
)
|
|
|
acting
by Xxxxxx
Xxxx
|
)
|
/s/ Xxxxxx Xxxx
|
|
its
duly authorised attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxx Xxxx
|
|
Xxxxx
Xxxx
|
||
|
Trainee
Solicitor
|
||
|
Xxxxxx
Xxxxxx & Xxxxxxxx LLP
|
||
|
00
Xxxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
LANDESBANK
HESSEN-THÜRINGEN
|
)
|
|
|
GIROZENTRALE
|
)
|
|
|
acting
by Xxxxxx
Xxxx
|
)
|
/s/ Xxxxxx Xxxx
|
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxx Xxxx
|
|
Xxxxx
Xxxx
|
||
|
Trainee
Solicitor
|
||
|
Xxxxxx
Xxxxxx & Xxxxxxxx LLP
|
||
|
00
Xxxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
NORDDEUTSCHE
LANDESBANK
|
)
|
|
|
GIROZENTRALE
|
)
|
|
|
acting
by Xxxxxx
Xxxx
|
)
|
/s/ Xxxxxx Xxxx
|
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
/s/ Xxxxx Xxxx
|
|
|
Xxxxx
Xxxx
|
||
|
Trainee
Solicitor
|
||
|
Xxxxxx
Xxxxxx & Xxxxxxxx LLP
|
||
|
00
Xxxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
ALLIANCE &
LEICESTER
|
)
|
|
|
COMMERCIAL FINANCE
PLC
|
)
|
|
|
acting
by Xxxx
Xxxxxxxx
|
)
|
/s/ Xxxx XxXxxxxx
|
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxxxx XxXxxxxx
|
|
Xxxxxxx
XxXxxxxx
|
||
|
0
Xxxxxxx Xxxxxx
|
||
|
Xxxxxxxxx,
Xxxxx
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
BANK OF AMERICA,
N.A.
|
)
|
|
|
acting
by Xxxxxx
Xxxx
|
)
|
/s/ Xxxxxx Xxxx
|
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxx Xxxx
|
|
Xxxxx
Xxxx
|
||
|
Trainee
Solicitor
|
||
|
Xxxxxx
Xxxxxx & Xxxxxxxx LLP
|
||
|
00
Xxxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
MANDATED
LEAD ARRANGERS
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
)
|
|
|
acting
by G. A.
Stares
|
)
|
/s/ G.A. Stares |
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ X.X. Xxxxxxx
|
|
X.X.
Xxxxxxx
|
||
|
The
Royal Bank of Scotland Plc
|
||
|
Shipping
Business Centre
|
||
|
0-00
Xxxxx Xxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X
0XX
|
||
|
BOOKRUNNER
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
)
|
|
|
acting
by G.
A. Stares
|
)
|
/s/ G.A. Stares |
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ X.X. Xxxxxxx
|
|
X.X.
Xxxxxxx
|
||
|
The
Royal Bank of Scotland Plc
|
||
|
Shipping
Business Centre
|
||
|
0-00
Xxxxx Xxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X
0XX
|
||
|
AGENT
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
)
|
|
|
acting
by Xxxxxx X. Xxxxxxx
|
)
|
/s/ Xxxxxx X. Xxxxxxx
|
|
Senior
Director
|
)
|
|
|
Head
of Syndicated Loans
Agency
|
)
|
|
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxx Xxxxxxx
|
|
Xxxxx
Xxxxxxx
|
||
|
Syndicated
Loans Agency
|
||
|
The
Royal Bank of Scotland
|
||
|
000
Xxxxxxxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
SECURITY
TRUSTEE
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
)
|
|
|
acting
by Xxxxxx X. Xxxxxxx
|
)
|
/s/ Xxxxxx X. Xxxxxxx
|
|
Senior
Director
|
)
|
|
|
Head
of Syndicated Loans
Agency
|
)
|
|
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ Xxxxx Xxxxxxx
|
|
Xxxxx
Xxxxxxx
|
||
|
Syndicated
Loans Agency
|
||
|
The
Royal Bank of Scotland
|
||
|
000
Xxxxxxxxxxx
|
||
|
Xxxxxx
XX0X 0XX
|
||
|
SWAP
BANK
|
||
|
EXECUTED as a DEED
|
)
|
|
|
by
|
)
|
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
)
|
|
|
acting
by G.A. Stares
|
)
|
/s/ G. A. Stares |
|
its
duly authorised
attorney-in-fact
|
)
|
|
|
in
the presence
of:
|
)
|
/s/ X.X. Xxxxxxx
|
|
X.X.
Xxxxxxx
|
||
|
The
Royal Bank of Scotland Plc
|
||
|
Shipping
Business Centre
|
||
|
0-00
Xxxxx Xxxxx Xxxxxx
|
||
|
Xxxxxx
XX0X
0XX
|
||
APPENDIX
1
CORPORATE
GUARANTEE SUPPLEMENT
|
To:
|
The
Royal Bank of Scotland plc
|
|
|
Shipping
Business Centre
|
|
|
0-00
Xxxxx Xxxxx Xxxxxx
|
|
|
Xxxxxx
XX0X 0XX
|
|
|
in
its capacity as Security Trustee
|
27 March
2009
Dear
Sirs
We refer
to:
|
(i)
|
the
loan agreement dated 29 March 2007 as amended by a side letter dated 26
March 2008 as further supplemented by a supplemental agreement dated 27
March 2009 (the “Loan
Agreement”) made between Argyle Maritime Corp., Xxxxx Maritime
Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., XxXxxxx
Maritime Corp. and Sunswyck Maritime Corp., as joint and several borrowers
(the “Borrowers”)
the Lenders listed therein, yourselves as mandated lead arranger,
bookrunner, agent, security trustee and swap bank pursuant to which the
Lenders have made available to the Borrowers a loan facility of One
hundred and fifty million Dollars ($150,000,000) upon the terms and
conditions specified therein;
|
|
(ii)
|
the
master agreement (on the 1992 ISDA Master Agreement
(Multicurrency-Crossborder) form) dated 29 March 2007 (the “Master Agreement”) made
between the Borrowers and yourselves as swap bank pursuant to which the
Borrowers entered into or may enter into certain Transactions (as such
term is defined in the said Master Agreement) pursuant to separate
Confirmations (as such term is defined in the said Master Agreement) upon
the terms and conditions therein
contained;
|
|
(iii)
|
the
Guarantee dated 29 March 2007 (the “Corporate Guarantee”)
executed in your favour in your capacity as security trustee whereby we
have guaranteed all the obligations of the Borrowers under the Loan
Agreement and the Master Agreement.
|
Words and
expressions defined in the Loan Agreement shall have the same meanings when used
herein.
We have
been advised by the Borrowers that you have agreed to (i) waive certain
covenants in the Loan Agreement and (ii) to certain consequential amendments to
the Loan Agreement, the Master Agreement and the other Finance Documents subject
to the terms and conditions contained in a supplemental agreement substantially
in the form annexed hereto (the “Supplemental
Agreement”).
In
consideration of US$1 and other good and valuable consideration provided by the
Security Trustee (the receipt and sufficiency of which we hereby acknowledge) we
hereby agree to the amendments to the Loan Agreement, the Master Agreement and
the Finance Documents as contained in the Supplemental Agreement and agree that
the Corporate Guarantee shall apply to all the obligations of the Borrowers
under the Supplemental Agreement as if the Supplemental Agreement were referred
to in the Corporate Guarantee (in addition to the Loan Agreement, the Master
Agreement and the Finance Documents) and that all references to the Loan
Agreement, the Master Agreement and the Finance Documents in the Corporate
Guarantee and the other Finance Documents to which we are party shall be read
and construed as references to the Loan Agreement, the Master Agreement and the
Finance Documents as supplemented and amended by the Supplemental
Agreement. Save as provided herein the Corporate Guarantee shall
remain in full force and effect.
The
provisions of Clause 18 of the Corporate Guarantee shall apply to this
letter.
Yours
faithfully
/s/ Xxxxx
Xxxx (As Attorney in Fact)
TBS
INTERNATIONAL LIMITED
APPENDIX
II
SCHEDULE
5
REPAYMENT
INSTALMENTS
Loan
A
Loan A
shall be repaid by (i) 20 quarterly instalments each of $417,500 and (ii) a
balloon instalment of $16,650,000 payable simultaneously with the last such
quarterly instalment commencing with a first such quarterly instalment to be
paid on the date falling three months after the Drawdown Date of the Loan A
Delivery Advance and thereafter at three monthly intervals Provided
that in the event such Loan is not drawndown in full such repayment instalments
shall be reduced pro-rata and provided further that any repayment instalments in
respect of such Loan due to be repaid on or before 1 January 2010 shall be
prepaid on the Drawdown Date of the Loan A Delivery Advance.
Loan
B
Loan B
will be repaid by (i) 20 quarterly instalments each of $417,500 and (ii) a
balloon instalment of $16,650,000 payable simultaneously with the last such
quarterly instalment commencing with a first such quarterly instalment to be
paid on the date falling three months after the Drawdown Date of the Loan B
Delivery Advance and thereafter at three monthly intervals Provided
that in the event such Loan is not drawndown in full such repayment instalments
shall be reduced pro-rata.
Loan
C
Loan C
will be repaid by (i) 20 quarterly instalments each of $417,500 and (ii) a
balloon instalment of $16,650,000 payable simultaneously with the last such
quarterly instalment commencing with a first such quarterly instalment to be
paid on the date falling three months after the Drawdown Date of the Loan C
Delivery Advance and thereafter at three monthly intervals Provided
that in the event such Loan is not drawndown in full such repayment instalments
shall be reduced pro-rata.
Loan
D
Loan D
will be repaid by (i) 20 quarterly instalments each of $417,500 and (ii) a
balloon instalment of $16,650,000 payable simultaneously with the last such
quarterly instalment commencing with a first such quarterly instalment to be
paid on the date falling three months after the Drawdown Date of the Loan D
Delivery Advance and thereafter at three monthly
intervals Provided that in the event such Loan is not drawndown in
full such repayment instalments shall be reduced pro-rata.
Loan
E
Loan E
will be repaid by (i) 20 quarterly instalments each of $417,500 and (ii) a
balloon instalment of $16,650,000 payable simultaneously with the last such
quarterly instalment commencing with a first such quarterly instalment to be
paid on the date falling three months after the Drawdown Date of the Loan E
Delivery Advance and thereafter at three monthly
intervals Provided that in the event such Loan is not drawndown in
full such repayment instalments shall be reduced pro-rata.
Loan
F
Loan F
will be repaid by (i) 20 quarterly instalments each of $417,500 and (ii) a
balloon instalment of $16,650,000 payable simultaneously with the last such
quarterly instalment commencing with a first such quarterly instalment to be
paid on the date falling three months after the Drawdown Date of the Loan F
Delivery Advance and thereafter at three monthly
intervals Provided that in the event such Loan is not drawndown in
full such repayment instalments shall be reduced pro-rata.
