Date: as of April 30, 2010 ADIRONDACK SHIPPING LLC as Owner FAIRFAX SHIPPING CORP. as Charterer TBS INTERNATIONAL LIMITED TBS HOLDINGS LIMITED and TBS INTERANTIONAL PUBLIC LIMITED COMPANY as Guarantors FIFTH AMENDATORY AGREEMENT Amending and...
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.9
Date: as
of April 30, 2010
ADIRONDACK
SHIPPING LLC
as
Owner
FAIRFAX
SHIPPING CORP.
as
Charterer
TBS
INTERNATIONAL LIMITED
TBS
HOLDINGS LIMITED
and
TBS
INTERANTIONAL PUBLIC LIMITED COMPANY
as
Guarantors
_______________________________________________________
FIFTH
AMENDATORY AGREEMENT
______________________________________________________
Amending
and Supplementing the Bareboat Charter Party dated as of January 24, 2007, as
amended and supplemented by the First Amendatory Agreement thereto dated as of
March 26, 2009, the Second Amendatory Agreement thereto dated as of April 16,
2009, the Third Amendatory Agreement thereto dated as of December 31, 2009 and
the Fourth Amendatory Agreement thereto dated at of January 12, 2010 in respect
of the Panamanian registered and Philippine bareboat registered SEMINOLE
PRINCESS
FIFTH AMENDATORY AGREEMENT dated as of April 30, 2010 (this “Agreement”)
AMONG
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(1)
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ADIRONDACK
SHIPPING LLC, a ▇▇▇▇▇▇▇▇ Islands limited liability company, as Owner (the
“Owner”);
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(2)
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FAIRFAX
SHIPPING CORP., a ▇▇▇▇▇▇▇▇ Islands corporation, as bareboat Charterer (the
“Charterer”);
and
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(3)
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TBS
INTERNATIONAL LIMITED, TBS HOLDINGS LIMITED, each a company organized and
existing under the law of Bermuda, and TBS INTERNATIONAL PUBLIC LIMITED
COMPANY, a company organized and existing under the law of Ireland (“TBSPLC”), as guarantors
(collectively, the “Guarantors”).
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WITNESSETH
THAT:
WHEREAS, the Owner, the
Charterer and the Guarantors are parties to a bareboat charter party dated as of
January 24, 2007, as amended and supplemented by the First Amendatory Agreement
thereto dated as of March 26, 2009, the Second Amendatory Agreement thereto
dated as of April 16, 2009, the Third Amendatory Agreement thereto dated as of
December 31, 2009, and the Fourth Amendatory Agreement thereto dated as of
January 12, 2010 (as so amended and supplemented, the “Charter”).
WHEREAS, upon the terms and
conditions stated herein, the parties hereto have agreed to amend certain
provisions of the Charter to increase the monthly Charter Hire payable by the
Charterer.
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 Charter.
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2
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FEE;
AMENDMENTS TO THE CHARTER
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2.1
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Fee. The Fee
payable by the Charterer to the Owner in connection with the amendments
set forth herein shall be $53,212.50 which fee shall be due on or before
the date of this Agreement.
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2.2
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Amendments. The
parties hereto agree to amend the Charter as follows with effect on and
from the date hereof Clause 31(1) is amended and restated to read as
follows:
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“(1) The
Charterer shall pay to the Owner for the hire of the Vessel monthly Charter Hire
in United States currency, at the rates set forth below, commencing on and from
the Delivery Date. Hire to continue until the date and hour when the
Vessel is redelivered by the Charterer:
(a) Months
1 –
24: $10,500.00
per day Charter Hire
(b) Months
25 –
36: $10,000.00
per day Charter Hire
(c) Months
37 –
39: $8,041.01
per day Charter Hire
(d) Months
40 –
48 $8,240
per day Charter Hire
(e) Months
49 –
60: $8,110
per day Charter Hire
(f) Months
61 –
72: $8,030
per day Charter Hire
(g) Months
73 –
84: $7,950
per day Charter Hire”
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3
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MISCELLANEOUS
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3.1
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References. Each
reference in the Charter to “this Charter”, “hereunder”, “hereof”,
“herein” or words of like import shall mean and refer to the Charter as
amended hereby.
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3.2
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Effect of this
Agreement. Subject to the terms of this Agreement, with
effect on and from the date hereof, the Charter shall be, and shall be
deemed by this Agreement to have been, amended upon the terms and
conditions stated herein and, as so amended, the Charter shall continue to
be binding on each of the parties to it in accordance with its terms as so
amended.
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3.3
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No other
amendments. Except as amended hereby, all other terms
and conditions of the Charter remain unchanged and the Charter is hereby
ratified and confirmed. Without limiting the foregoing, each
Guarantor ratifies and confirms that its guarantee under Clause 53 of the
Charter, as amended hereby.
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3.4
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Governing
Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed in accordance
with, Clause 26.2 of the Charter.
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3.5
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Counterparts. This
Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same
instrument.
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3.6
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Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating or affecting
the validity or enforceability of such provision in any other
jurisdiction.
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3.7
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Payment of
Expenses. The parties hereto agree to pay or reimburse
each of DVB Bank SE and DVB Bank America N.V. (collectively, the “Credit Parties”) for all
reasonable expenses in connection with the preparation, execution and
carrying out of this Agreement and any other document in connection
herewith or therewith, including but not limited to, reasonable fees and
expenses of any counsel whom the Credit Parties may deem necessary or
appropriate to retain, any duties, registration fees and other charges and
all other reasonable out-of-pocket expenses incurred by any of the Credit
Parties in connection with the
foregoing.
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[SIGNATURE
PAGE FOLLOWS]
WHEREFORE,
the parties hereto have caused this Fifth Amendatory Agreement to be executed as
of the date first above written.
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ADIRONDACK
SHIPPING LLC, as Owner
By:
/s/ Asandro Van
Aerde
Name:
Asandro Van Aerde
Title:
Director
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FAIRFAX
SHIPPING CORP., as Charterer
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
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TBS
INTERNATIONAL LIMITED, as Guarantor
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
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TBS
INTERNATIONAL PUBLIC LIMITED COMPANY, as Guarantor
By:
/s/ ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive
Vice-President
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TBS
HOLDINGS LIMITED, as Guarantor
By:
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice-President
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CONSENT
Pursuant
to Clause 10.2(k) of the Loan Agreement dated as of January 25, 2007, as
amended, among Adirondack Shipping LLC and Rushmore Shipping LLC as Borrowers,
the banks and financial institutions named therein as Lenders and DVB Bank
America N.V. as Facility Agent and Security Trustee, the Facility Agent, for and
on behalf of, and upon the instruction of, the Majority Lenders (as defined in
said Loan Agreement), hereby consents and agrees to the foregoing
Agreement.
DVB BANK
AMERICA N.V.,
as
Facility Agent for and on behalf of the Majority Lenders
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Sarma
▇▇▇▇ ▇▇▇▇▇▇▇▇ Sarma
Attorney-in-Fact