Exhibit 10.1


 


FIRST AMENDMENT TO 

SECOND AMENDED
AND RESTATED CREDIT AGREEMENT


 


THIS FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of August 1, 2005 (this “Amendment”), is
entered into by and among U.S. SHIPPING PARTNERS L.P., a Delaware limited partnership,
U.S. SHIPPING
OPERATING LLC, a Delaware limited liability company, ITB BALTIMORE LLC,
a Delaware limited liability company, ITB GROTON LLC, a Delaware
limited liability company, ITB JACKSONVILLE LLC, a Delaware limited liability company, ITB MOBILE LLC,
a Delaware limited liability company, ITB NEW YORK LLC, a Delaware
limited liability company, ITB PHILADELPHIA LLC, a Delaware limited liability company, USS CHARTERING LLC,
a Delaware limited liability company, USCS CHEMICAL CHARTERING LLC, a
Delaware limited liability company, USCS CHEMICAL PIONEER INC., a
Delaware corporation and successor-by-conversion to USCS Chemical Pioneer LLC, USCS CHARLESTON LLC,
a Delaware limited liability company, USCS CHARLESTON CHARTERING LLC,
a Delaware limited liability company, USCS ATB LLC, a Delaware limited
liability company (each of the foregoing being individually called a “Borrower”
and collectively, the “Borrowers”), the various financial institutions
as are or may become parties to the Credit Agreement as defined hereinafter
(collectively, the “Lenders”), CANADIAN IMPERIAL BANK OF COMMERCE
(“CIBC”), as administrative agent (in such capacity together with its
successors in such capacity, the “Administrative Agent”) for the
Lenders, CIBC,
as letter of credit issuer (the “Letter of Credit Issuer”), and KEYBANK NATIONAL
ASSOCIATION, as collateral agent (in such capacity, together with
its successors in such capacity, the “Collateral Agent”) for the Secured
Parties (as defined in the Credit Agreement hereinafter defined).


 


W I T N E S S E T H:


 


WHEREAS,
the Borrowers, the Lenders, the Letter of Credit Issuer, the Administrative
Agent and the Collateral Agent have entered into that certain Second Amended
and Restated Credit Agreement dated as of November 3, 2004 (the “Credit Agreement”).


 


WHEREAS,
the Borrowers intend to increase the Commitments pursuant to Section 2.1.6
of the Credit Agreement and to use the proceeds of the Credit Extensions
utilizing such increased Commitments (a) to acquire the M/V Gus W.
Darnell, a vessel that has been operating for at least six months prior to such
acquisition by the Borrowers and (b) to construct one or more new
articulated tug-barge vessel in addition to the ATB (such vessels, the “New
ATBs”).


 


WHEREAS,
the Borrowers, the Lenders, the Letter of Credit Issuer, the Administrative
Agent and the Collateral Agent intend to amend certain provisions of the Credit
Agreement as set forth herein.


 


NOW
THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:


 


SECTION 1.         Definitions.  Unless otherwise defined in this Amendment,
each capitalized term used in this Amendment has the meaning assigned to such
term in the Credit Agreement.


 





















 


SECTION 2.         Amendment of Section 1.1 of
the Credit Agreement.  Section 1.1
of the Credit Agreement is hereby amended as follows:


 


(a)           The following defined term is
inserted in Section 1.1 of the Credit Agreement immediately after the
definition for “Credit Facility Pro Rata Share” and immediately before the
definition for “Debt”:


 


“              “Darnell Acquisition Agreement”
means that certain Memorandum of Agreement, dated July 5, 2005, by and
between Wilmington Trust Company, not in its individual capacity but solely as
Owner Trustee under the Owner Trust agreement dated September 11, 1985, as
“Sellers” and MLP or its guaranteed nominee as “Buyers”, as amended or
otherwise modified from time to time.”


 


(b)           Clause (f) of the definition of “Indebtedness”
is amended (i) by inserting the text “or the Darnell Acquisition Agreement”
immediately after the text “the ATB Construction Contract” and (ii) by
inserting the text “provided, however, that any agreement to pay for the
purchase or construction of one or more vessels and other assets relating to
such vessels upon the delivery of such acquired vessels where the acquisition
of such vessels and related assets are otherwise permitted under this Agreement
shall not be deemed to be “Indebtedness” hereunder until the earlier of (a) the
first date of delivery of any such vessel or other related asset in accordance
with such agreement or (b) the first date any payment (other than an
initial deposit) is made by any Borrower or Subsidiary for the purchase or
construction of such vessel or other related asset” immediately before the text
“; and”.


 


(c)           The definition of “Vessel Acquisition”
is amended by inserting the text “but including the M/V Gus Darnell acquired
pursuant to the Darnell Acquisition Agreement” immediately after the text “excluding
the ATB”.


 


SECTION 3.         Amendment of Section 3.1 of
the Credit Agreement.  Clause (c) of
Section 3.1 of the Credit Agreement is hereby amended by deleting the
repayment schedule in its entirety and inserting the following schedule in
lieu thereof:


 


	
  Date

  	
   

  	
  Amount

  	
   

  
	
  September 30, 2005

  	
   

  	
  $

  	
  375,000

  	
   

  
	
  December 31, 2005

  	
   

  	
  $

  	
  462,549

  	
   

  
	
  March 31, 2006

  	
   

  	
  $

  	
  462,549

  	
   

  
	
  June 30, 2006

  	
   

  	
  $

  	
  462,549

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  462,549

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  462,549

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  1,541,829

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  1,541,829

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  1,541,829

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  1,541,829

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  3,083,658

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  64,217,166

  	
   

  
	
  April 30, 2010

  	
   

  	
  $

  	
  64,217,167

  	
   

  



 


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SECTION 4.         Amendment of Section 7.2.7
of the Credit Agreement.  Section 7.2.7
of the Credit Agreement is hereby amended by (a) deleting the text “or
commit to make” and (b) inserting the text “, expenditures for the
purchase of the M/V Gus W. Darnell pursuant to the Darnell Acquisition
Agreement and refurbishment of the M/V Gus W. Darnell in an amount not to
exceed $30,000,000 in the aggregate,” immediately after the text “expenditures
for the ATB”.


 


SECTION 5.         Calculation of Consolidated Pro
Forma EBITDA. 
The parties hereto agree with the Administrative
Agent that for each period that Consolidated Pro Forma EBITDA is calculated
after the delivery of the M/V Gus W. Darnell to the Borrowers, Consolidated Pro
Forma EBITDA shall be calculated after giving pro forma effect to the
acquisition of the M/V Gus W. Darnell during the period as if such acquisition had
occurred on the first day of such period.


 


SECTION 6.         Ratification.  Each Borrower hereby ratifies and confirms
all of the Obligations under the Credit Agreement and the other Loan
Documents.  This Amendment is an
amendment to the Credit Agreement, and the Credit Agreement as amended hereby,
is hereby ratified, approved and confirmed in each and every respect.


 


SECTION 7.         Effectiveness.  This Amendment shall be effective as of July 5,
2005, provided  that
the conditions set forth in this Section 5 are satisfied:


 


(a)           The Administrative Agent shall have
received duly executed counterparts of this Amendment from the Borrowers, the
Administrative Agent, the Letter of Credit Issuer, the Collateral Agent and the
Majority Lenders.


 


(b)           To induce the Lenders to enter into
this Amendment, each of the Borrowers shall have represented and warranted to
the Administrative Agent, the Letter of Credit Issuer, the Collateral Agent and
the Lenders, and by its execution and delivery of this Amendment such Borrower
does hereby represent and warrant to the Administrative Agent, the Letter of
Credit Issuer, the Collateral Agent and the Lenders,


 


3





















 


that (i) the
execution, delivery and performance of this Amendment has been duly authorized
by all requisite corporate action on the part of such Borrower; (ii) the
Credit Agreement and each other Loan Document to which it is a party constitute
valid and legally binding agreements enforceable against such Borrower in
accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting the enforcement of
creditors’ rights generally and by general principles of equity, (iii) the
representations and warranties by such Borrower contained in the Credit
Agreement and in the other Loan Documents are true and correct on and as of the
date hereof in all material respects as though made as of the date hereof, except
those that by their terms relate solely as to an earlier date, in which event
they shall be true and correct on and as of such earlier date, and (iv) no
Default or Event of Default exists under the Credit Agreement or any of the
other Loan Documents.


 


SECTION 8.         Conditions
Subsequent.  The Borrowers hereby
covenant and agree that they


 


(a)           shall execute and deliver a Mortgage,
substantially in the form of Exhibit G to the Credit Agreement, within
twenty (20) Business Days (or such timeframe as is acceptable to the
Administrative Agent) after the delivery of the M/V Gus W. Darnell to any
Borrower or Subsidiary of a Borrower;


 


(b)           shall deliver a Third Party Consent,
substantially in the form of Exhibit K-2 to the Credit Agreement, duly
executed and delivered by each charterer who executes a time charter for any
period equal to or greater than two years with any Borrower or Subsidiary of a
Borrower with respect to the M/V Gus W. Darnell not later
than 180 days immediately following the execution of such charter; and


 


(c)           shall
not, and shall not permit any of their respective Subsidiaries to, make any
disbursement of funds to any contractor for the construction of each of the New
ATBs, other than the payment of a premium in an amount not in excess of $1,000,000
with respect to purchasing an option to have the contractor construct each of
the New ATBs, unless prior to any such disbursement each of the following
conditions shall have been satisfied with respect to each New ATB:  (i) one or more of the Borrowers, or a
wholly-owned Subsidiary thereof, shall have entered into a fixed price
construction contract, which may include a fluctuating speed bonus component,
with the contractor for the construction of the New ATB at a total cost not in
excess of $48,000,000, with a construction period of no longer than 24 months
and which is otherwise in form and substance reasonably satisfactory to the
Administrative Agent; (ii) the Borrowers, or a wholly-owned Subsidiary
thereof, shall have obtained a completion bond, insurance policy, standby
letter of credit, deposit arrangement, or other arrangement, in an amount, upon
terms and from parties that are reasonably satisfactory to the Administrative
Agent, to assure the timely completion and certification of the New ATB with
such arrangement to be maintained throughout the construction period; and (iii) the
Administrative Agent shall have received a consent and agreement to the
assignment and creation of a security interest in the construction contract
with the contractor for the construction of the New ATB by the Borrowers, or a
wholly-owned Subsidiary thereof, to the Collateral Agent for 


 


4





















 


the benefit of the
Secured Parties of all of the Borrowers’ and its Subsidiaries’ rights, title
and interests in, to and under the construction contract as security for the
Obligations.


 


SECTION 9.         Governing Law; Severability;
Entire Agreement. 
THIS AMENDMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF
THE LAW OF ANY OTHER JURISDICTION). 
Any provision of this Amendment or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Amendment or such Loan Document or affecting the validity or enforceability of
such provision in any other jurisdiction. 
This Amendment and the other Transaction Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.


 


SECTION 10.       Execution
in Counterparts.  This Amendment may
be executed by the parties hereto in several counterparts, each of which shall
be executed by the Borrowers and the Administrative Agent and be deemed to be
an original and all of which shall constitute together but one and the same
agreement.


 


SECTION 11.       Successors
and Assigns.  This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that (a) no
Borrower may assign or transfer its rights or obligations hereunder without the
prior written consent of the Administrative Agent, the Letter of Credit Issuer
and all Lenders; and (b) the rights of sale, assignment and transfer of
the Lenders are subject to Section 10.11 of the Credit Agreement.


 


SECTION 12.       Miscellaneous.  (a) On and after the effectiveness of
this Amendment, each reference in each Transaction Document to “the Credit
Agreement”, “thereunder”, “thereof” or words of like import
referring to the Credit Agreement shall mean and be a reference to the Credit
Agreement as amended or otherwise modified by this Amendment; (b) the
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any default of the Borrower
or any right, power or remedy of the Administrative Agent, the Letter of Credit
Issuer, the Collateral Agent or the Lenders under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents; (c) this
Amendment is a Loan Document executed pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Credit
Agreement; and (d) a facsimile signature of any party hereto shall be
deemed to be an original signature for purposes of this Amendment.


 


[Remainder of Page Left
Intentionally Blank]


 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by its officers thereunto duly authorized as of the date first above
written.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. SHIPPING PARTNERS L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  US Shipping General Partner LLC,

  
	
   

  	
   

  	
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  U.S. SHIPPING OPERATING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  ITB BALTIMORE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  ITB GROTON LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  ITB JACKSONVILLE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


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  ITB MOBILE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  ITB NEW YORK LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  ITB PHILADELPHIA LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  USS CHARTERING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  USCS CHEMICAL CHARTERING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  USCS CHEMICAL PIONEER INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


S-2





















 


	
   

  	
  USCS CHARLESTON CHARTERING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  USCS CHARLESTON LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


	
   

  	
  USCS ATB LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Gridley

  	
   

  
	
   

  	
  Name:

  	
  Paul Gridley

  
	
   

  	
  Title:

  	
  Chairman and
  Chief Executive Officer

  
					



 


S-3





















 


AGENTS AND LENDERS:


 


CANADIAN IMPERIAL BANK 

OF COMMERCE, as Administrative Agent and 

Letter of Credit Issuer


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


KEYBANK NATIONAL ASSOCIATION, as

Collateral Agent and Lender


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ,

  
	
  as Lender

  
				



 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


S-4