ex-10_4.htm


TBS INTERNATIONAL LIMITED & SUBSIDIARIES             EXHIBIT
10.4

 

 

Pursuant to 17 CFR 240.24b-2, confidential information (indicated by [****]) has been omitted and has been filed separately with the Securities and Exchange Commission Pursuant to a Confidential Treatment Application filed with the commission.









AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT





This AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT (this “Amendment”) dated as of March 27, 2009, is by and among (i) ALBEMARLE MARITIME CORP., ARDEN MARITIME CORP., AVON MARITIME CORP., BIRNHAM MARITIME CORP.,
BRISTOL MARITIME CORP., CHESTER SHIPPING CORP., CUMBERLAND NAVIGATION CORP., DARBY NAVIGATION CORP., DOVER MARITIME CORP., ELROD SHIPPING CORP., EXETER SHIPPING CORP., FRANKFORT MARITIME CORP., GLENWOOD MARITIME CORP., HANSEN SHIPPING CORP., HARTLEY NAVIGATION CORP., HENLEY MARITIME CORP., HUDSON MARITIME CORP., JESSUP MARITIME CORP., MONTROSE MARITIME CORP., OLDCASTLE SHIPPING CORP., QUENTIN NAVIGATION CORP., RECTOR SHIPPING CORP., REMSEN NAVIGATION CORP., SHEFFIELD MARITIME CORP., SHERMAN MARITIME CORP., STERLING
SHIPPING CORP., STRATFORD SHIPPING CORP., VEDADO MARITIME 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) TBS INTERNATIONAL LIMITED, a corporation formed under the laws of Bermuda (“Holdings”),
(iii) TBS SHIPPING SERVICES INC., a New York corporation, as administrative borrower (the “Administrative Borrower”), (iv) each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and (v) 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 the Administrative Agent are parties to that certain Amended and Restated Credit Agreement dated as of March 26, 2008 (as amended and in effect from time to time, the “CreditAgreement”),
pursuant to which the Lenders have agreed, upon certain terms and conditions, to make loans and otherwise extend credit to the Borrowers;





WHEREAS, (i) Events of Default have occurred and continue in connection with the Administrative Agent’s receipt of a Valuation of the Vessels, dated on or about February 20, 2009, and as a result of the Borrowers’ failure to
prepay the Loans and other Credit Extensions in an amount so that the Total Outstandings do not exceed the Maximum Available Amount, in accordance with the requirements contained in Section 2.05(b)(iii) of the Credit Agreement, and (ii) Events of Default are anticipated to occur as a result of the Loan Parties’ failure to comply with the financial covenants set forth in Section 7.13 of the Credit Agreement (the Events of Default described
in clause (i) and the anticipated Events of Default described in clause (ii), collectively, the “Specified Events of Default”);





WHEREAS, Events of Default have occurred in connection with the Borrowers’ failure to, within 30 days after the fiscal year of Holdings ending December 31, 2008, (i) deliver the report summarizing insurance coverage required pursuant
to Section 6.02(g) of the Credit Agreement and (ii) deliver supplemental Schedules to the Credit Agreement required pursuant to Section 6.02(k) (the Events of Default described in clauses (i) and (ii), collectively, the “Other Events of Default” and the report and supplemental Schedules described in clauses
(i) and (ii), collectively, the “Annual Deliverables”).





WHEREAS, the Borrowers have requested  and the Lenders and the Administrative Agent are willing (a) to waive the Specified Events of Default and the Other Events of Default, subject to the terms, conditions and other provisions
hereof, and (b) to amend certain provisions of the Credit Agreement as more fully provided herein;





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 (as amended hereby).





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 Lenders and the Administrative Agent hereby agree as follows:





Section 1. Waiver.  Subject
to the terms and conditions set forth herein, the Lenders and the Administrative Agent hereby agree to waive (i) the Specified Events of Default but only during the Waiver Period and (ii) the Other Events of Default.  Such limited waiver of the Specified Events of Default shall automatically, and without action, notice, demand or any other occurrence, expire on and as of the end of the Waiver Period.  Upon the expiration or termination of the Waiver Period, and from and after such time, (i)
the Lenders and the Administrative Agent shall retain all of the rights and remedies relating to the Specified Events of Default (unless the Pre-Waiver Covenant Compliance Date has occurred as of the expiration of the Waiver Period) and any other Default or Event of Default (other than the Other Events of Default), (ii) the Specified Events of Default shall be reinstated and shall be in full force and effect for all periods including periods after the Waiver Period (unless the Pre-Waiver Covenant Compliance Date
has occurred as of the expiration of the Waiver Period), and (iii) any obligation of the Lenders under the Credit Agreement shall be subject to the terms and conditions set forth in the Credit Agreement.







 



 







 



Section 2.                      Affirmation and Acknowledgment of the Borrower.  Each
Borrower hereby ratifies and confirms all of its Obligations to the Lenders, the L/C Issuer and the Administrative Agent, including, without limitation, the Loans, and each Borrower hereby affirms its absolute and unconditional promise to pay to the Lenders, the L/C Issuer and the Administrative Agent the Loans and all other amounts due under the Credit Agreement as amended hereby.  Each Borrower hereby confirms that the Obligations are secured pursuant to the Collateral Documents and pursuant to all
other instruments and documents executed and delivered by the Borrowers and as security for the Obligations.





Section 3.                      Release.  In
order to induce the Administrative Agent and the Lenders to enter into this Amendment, each Loan Party acknowledges and agrees that: (a) such Loan Party does not have any claim or cause of action against the Administrative Agent, the L/C issuer or any Lender (or any of its respective directors, officers, employees or agents); (b) such Loan Party does not have any offset right, counterclaim or defense of any kind against any of its respective obligations, indebtedness or liabilities to the Administrative Agent,
the L/C Issuer or any Lender; and (c) each of the Administrative Agent, the L/C Issuer and each Lender has heretofore properly performed and satisfied in a timely manner all of its obligations to the Loan Parties.  Each Loan Party wishes to eliminate any possibility that any past conditions, acts, omissions, events, circumstances or matters would impair or otherwise adversely affect the Administrative Agent’s, the L/C Issuer’s or any Lender’s rights, interests, contracts, collateral
security or remedies.  Therefore, each Loan Party unconditionally releases, waives and forever discharges (i) any and all liabilities, obligations, duties, promises or indebtedness of any kind of the Administrative Agent, the L/C Issuer or any Lender to such Loan Party, except the obligations to be performed by any Administrative Agent, the L/C Issuer or any Lender on or after the date hereof as expressly stated in this Amendment, the Credit Agreement and the other Loan Documents, and (ii) all claims,
offsets, causes of action, suits or defenses of any kind whatsoever (if any), whether arising at law or in equity, whether known or unknown, which such Loan Party might otherwise have against the Administrative Agent, the L/C Issuer, any Lender or any of its directors, officers, employees or agents, in either case (i) or (ii), on account of any past or presently existing condition, act, omission, event, contract, liability, obligation, indebtedness, claim, cause of action, defense, circumstance or matter of any
kind.

 

Section 4.                      Amendment
to Schedules to the Credit Agreement.   Schedules 2.01(a), 5.05, 5.08(b), (c), (d)(i), (d)(ii) and (e), 5.13, 5.17, 5.27, 5.29, 6.12,  7.02 and 7.11 to the Credit Agreement are hereby amended and restated in their entirety with Schedules 2.01(a), 5.05, 5.08(b), (c), (d)(i), (d)(ii) and (e), 5.13, 5.17, 5.27, 5.29, 6.12, 7.02 and 7.11 attached hereto
as Exhibit A.





Section 5.                      Amendment to Exhibits
to the Credit Agreement.   Exhibits D-1 and D-2 to the Credit Agreement are hereby amended and restated in their entirety with Exhibits D-1 and D-2 attached hereto as Exhibit B.





Section 6.                      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:





“Amendment No. 1” means Amendment No. 1 and Waiver to Credit Agreement, dated as of March 27, 2009, among the Borrowers, 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.

 

“Consolidated Interest Charges Coverage Ratio” means, at any date of determination, the ratio of (a) the result of (i) Consolidated EBITDA, less (ii)
the sum 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.





“Lenders’ Allocated Percentage” means, in respect of a sale or issuance by any Loan Party of its Equity Interests as provided in Section 2.05(b)(vi), a fraction, expressed as a percentage, (a)
the numerator of which is the amount equal to the sum of the Revolving Credit Facility, plus the outstanding principal amount of the Term Facility at the time of such sale or issuance of Equity Interests, and (b) the denominator of which is the amount equal to the sum of the Revolving Credit Facility, plus the outstanding principal amount of the Term Facility, plus the
sum of the Loan Parties’ Indebtedness set forth on Schedule 7.02, in each case, outstanding and in effect at the time of such sale or issuance of Equity Interests.





 



 







 



“Pre-Waiver Covenant Compliance Conditions” means, at any date of determination following the commencement of the Waiver Period, the following conditions, (a) the Loan Parties’ and their Subsidiaries shall be in full compliance with the financial covenants
provided in Section 7.13 for the most recent fiscal quarter or month ended, as applicable, of Holdings and its Subsidiaries, as such covenants were in effect immediately prior to the commencement of the Waiver Period; provided that for the purposes of determining compliance with such financial covenants, the definitions of “Consolidated EBITDA” and “Consolidated Interest
Charges” shall respectively have the meaning assigned to such term after the Amendment No. 1 Effective Date, (b) the Total Outstandings shall not exceed the Maximum Available Amount, and (c) no Default or Event of Default shall have occurred or be continuing.





“Pre-Waiver Covenant Compliance Date” means, as determined by the Administrative Agent based on evidence provided by the Borrowers, the date on which the Borrowers shall have demonstrated to the Administrative Agent’s satisfaction that each of the Pre-Waiver
Covenant Compliance Conditions have been satisfied.





“Waiver Period” means the period commencing on March 2, 2009 and ending on the earliest to occur of (a) January 1, 2010 at 12:00 a.m. Eastern Time and (b) the occurrence after the commencement of the Waiver Period of any Default or Event of Default (other than the
Specified Events of Default and the Other Events of Default (each as defined in the Amendment No. 1)) including, without limitation, any failure to comply with the provisions of Amendment No. 1.





(b) Section 1.01 of the Credit Agreement is hereby amended by amending and restating the following definitions in their entirety:

 

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from
time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate in effect for such day for a one (1) month Interest Period plus 1%.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“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); providedthat,
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 1998), noncash 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; providedthat,
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 1998), noncash adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries, shall be excluded.

 

“Net Present Rental Value” means, as of any date, the aggregate net present value of all Rentals payable by Holdings or any of its Subsidiaries to any Person (other than Holdings or any of its other Subsidiaries) pursuant to any Operating Lease or, without duplication,
any charter of any vessel that, in each case, after giving effect to any renewals or other extensions provided therein and in the absence of any early termination, shall or would have a fixed remaining term of (a) prior to the Pre-Waiver Covenant Compliance Date, eighteen months or more and (b) commencing with the Pre-Waiver Covenant Compliance Date, twenty-three months or more, in each case discounted to such date at a rate of 8.00% per annum.

 



 



 







 



“Philippine Charterer” means, with respect to any Vessel, one of CFS Bareboat Corp., Filscan Shipping, Inc., General Charterer, Inc., Intermodal Shipping, Inc., Overseas Bulk Transport, Inc., Sea Star Shipping Corp., Viking International Carriers, Inc., and each other bareboat charterer organized under the laws
of the Philippines acceptable to the Administrative Agent, as applicable.

 

(c) Effective as of March 13, 2009, Section 1.01 of the Credit Agreement is hereby amended by deleting the table set forth in the definition of “Applicable Rate” in its entirety and substituting in lieu thereof the following
new table:








	
Pricing Level
	
Consolidated Leverage Ratio
	
Eurodollar Rate

(Letter of Credit Fee)
	
Base Rate

	
I
	
> 6.00:1.00
	
525.00
	
425.00

	
II
	
< 6.00:1.00
	
400.00
	
300.00










(d) Effective as of March 13, 2009, Section 1.01 of the Credit Agreement is hereby amended by deleting the table set forth in the definition of “Applicable Commitment Fee Percentage” in its entirety and substituting in lieu
thereof the following new table:








	
Pricing Level
	
Consolidated Leverage Ratio
	
Commitment Fee

	
I
	
> 6.00:1.00
	
100.00

	
II
	
< 6.00:1.00
	
75.00










Section 7.                      Amendments
to Section 2.05 of the Credit Agreement.





(a) Section 2.05(a)(i) of the Credit Agreement is hereby amended by deleting the words “inverse order of maturity” in the last sentence contained therein and substituting in lieu thereof the words “direct order of maturity”.





(b) Section 2.05(b)(iv) of the Credit Agreement is hereby amended by deleting the words “to the Revolving Credit Facility in the manner set forth in clause (v), third of
this Section 2.05(b)” contained therein.





(c) Section 2.05(b) of the Credit Agreement is hereby amended by inserting the following new paragraphs (vi) and (vii) in the appropriate numerical order:





(vi) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than any sales or issuances of Equity Interests to a Loan Party), the Borrowers shall prepay an aggregate principal amount of the Loans equal to the Lenders’ Allocated Percentage
of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (vii) below).

(vii) Each prepayment of Loans pursuant to the foregoing clause (vi), of this Section 2.05(b) shall be applied, first,
to the Term Facility to the principal repayment installments thereof on a pro rata basis, second, to the Revolving Credit Facility in the manner set forth in clause (v) of this Section 2.05(b) (other than to Cash Collateralize the remaining L/C Obligations) and, third to
Cash Collateralize the remaining L/C Obligations.





Section 8.                      Amendment to
Section 4.02 of the Credit Agreement.  Section 4.02 of the Credit Agreement is hereby amended by inserting the following new paragraph (g) in the appropriate alphabetical order:





(g)           If any Valuation (including, without limitation, any Initial Valuation or Subsequent Valuation) of any Vessel (i) has been requested from an Appraiser, (ii) is in the process of being conducted or prepared by an Appraiser,
or (iii) has been received by the Administrative Agent in draft form, but a final Valuation has not been delivered to the Administrative Agent, five (5) Business Days have elapsed following the Administrative Agent’s receipt of a final Valuation, in form and substance satisfactory to the Administrative Agent.





Section 9.                      Amendment to Article V of the Credit Agreement.  Article
V of the Credit Agreement is hereby amended by inserting the following new Section 5.29 in the appropriate numerical order:





5.29           Deposit Accounts; Securities
Accounts; Other Accounts.  Schedule 5.29 sets forth all banks and other financial institutions at which any Loan Party or its Subsidiaries maintains deposit accounts, securities account or other accounts and such Schedule
5.29 correctly identifies the name, address and telephone number of each depository, the name in which each account is held, a description of the purpose of each account and the complete account number therefor.





Section 10.                                Amendments
to Section 6.02 of the Credit Agreement.  Section 6.02(k)(ii)(C) of the Credit Agreement is hereby amended by deleting the words “Schedules 5.08(e) and 5.13” and substituting in lieu thereof the following words: “Schedules 5.08(e), 5.13 and 5.29”.





 



 







 




Section 11.                                Amendments
to Section 6.12 of the Credit Agreement.  





(a) Section 6.12(a) of the Credit Agreement is hereby amended by deleting the first parenthetical contained therein and substituting in lieu thereof the following new parenthetical:
“(other than any Excluded Subsidiary which is addressed in clause (c) below so long as the Pre-Waiver Covenant Compliance Date has occurred but subject to Section 2.14 hereof).”


 

(b) Section 6.12(a)(i) of the Credit Agreement is hereby amended by deleting the words “Section 4.01(a)(viii) and (ix)”
and substituting in lieu thereof “Section 4.01(a)(xvi) and (xvii)”





(c) Section 6.12(c) of the Credit Agreement is hereby amended by deleting the first paragraph contained therein and substituting in lieu thereof the following new paragraph: “Commencing on the Pre-Waiver Covenant
Compliance Date, subsequent to the formation or acquisition of any direct or indirect Subsidiary that is an Excluded Subsidiary by any Loan Party, then the Borrowers shall, at the Borrowers’ expense:”





Section 12.                                Amendments
to Section 6.19 of the Credit Agreement.





(a) Section 6.19(a) of the Credit Agreement is hereby amended by inserting the following sentence immediately after the last sentence contained therein: “Notwithstanding the foregoing, the Borrowers shall cause the Appraiser to
deliver to the Administrative Agent, no later than fifteen (15) Business Days prior to the expiration of the Waiver Period in lieu of the Valuation otherwise due on or before March 31, 2010, a Valuation of each Vessel, dated and accurate as of no earlier than thirty (30) days prior to the expiration of the Waiver Period.”





(b) Section 6.19 of the Credit Agreement is hereby amended by inserting the following new paragraph (d) in the appropriate alphabetical order:





“(d)  Notwithstanding anything contained in this Section 6.19 and for the avoidance of doubt, in the event that a Valuation (including, without limitation, any Initial Valuation or Subsequent Valuation) of any Vessel
(i) has been requested from an Appraiser, (ii) is in the process of being conducted or prepared by an Appraiser, or (iii) has been received by the Administrative Agent in draft form, pursuant to Section 4.02, no Lender is required to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) until five (5) Business Days following the
Administrative Agent’s receipt of a final Valuation, in form and substance satisfactory to the Administrative Agent.”





Section 13.                                Amendment
to Section 7.02 of the Credit Agreement.





(a) Section 7.02(d) of the Credit Agreement is hereby amended and restated in its entirely with the following new Section 7.02(d):





“(d)           Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancings, refundings, renewals or extensions thereof; provided that
(i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension;
(ii)  that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, in any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate; (iii) that the terms relating to amortization in any such refinancing, refunding, renewing or extending of Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, shall not require the prepayment of any amortization payments previously to be due after January 31, 2010; and (iv) that, in
respect of the Indebtedness owed by certain Subsidiaries of the Loan Parties to The Royal Bank of Scotland plc, as lender under the loan agreement described on Schedule 7.02,  the terms relating to advances in any such refinancing, refunding, renewing or extending of Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith shall not have the effect of accelerating the timing of, or triggers for,
advances under such credit facility or permit such Subsidiaries to borrow under such credit facility at any other times and in any other amounts other than the times and amounts set forth in such loan agreement as in effect on the Amendment No. 1 Effective Date.

 

(b) Sections 7.02(f), (g) and (h) of the Credit Agreement are each hereby amended by inserting the following clause immediately before each such paragraph, “Commencing on the
Pre-Waiver Covenant Compliance Date,”





 



 







 
      (c) Section
7.02 of the Credit Agreement is hereby amended by inserting the following new paragraph (i) in the appropriate alphabetical order:



 

“(i)           Indebtedness otherwise permitted under Sections 7.02(f), (g) and (h) but
incurred and existing prior to the Amendment No. 1 Effective Date but no refinancings, refundings, renewals or extensions thereof.”


 

Section 14.                                Amendments
to Section 7.03 of the Credit Agreement.





(a) Sections 7.03(i) and (j) of the Credit Agreement are each hereby amended by inserting the following clause immediately before each such paragraph:  “Commencing on the Pre-Waiver Covenant Compliance Date,”





(b) Sections 7.03(h) is hereby amended restated in its entirety with the following new Section 7.03(h):





(h)           Investments by Holdings and its Subsidiaries in Joint Ventures or in other Persons hereunder in an aggregate amount invested since March 26, 2008 not to exceed (a) if the Pre-Waiver Covenant Compliance Date has not occurred,
$10,000,000 and (b) commencing on the Pre-Waiver Covenant Compliance Date, the sum of (i) $30,000,000 plus (ii) 25% of the Consolidated Net Income earned in each full fiscal year ending after December 31, 2007 (with no deduction for a net loss in any such fiscal year) minus (iii) the aggregate amount of dividends or other distributions made in each full fiscal year ending after December
31, 2007 pursuant to Section 7.06; provided, that no Default or Event of Default has occurred and is continuing at the time any such Investment is made.





(c) Section 7.03 of the Credit Agreement is hereby amended by inserting the following new paragraph (k) in the appropriate alphabetical order:





“(k)           Investments otherwise permitted under Sections 7.03(i) and (j) but made or held and existing
prior to the Amendment No. 1 Effective Date.”





Section 15.                                Amendment
to Section 7.05 of the Credit Agreement. Section 7.05(g) of the Credit Agreement is hereby amended by inserting the following clause immediately before such paragraph: “Commencing on the Pre-Waiver Covenant Compliance Date,”





Section 16.                                Amendment
to Section 7.06 of the Credit Agreement. Section 7.06(d) of the Credit Agreement is hereby amended by inserting the following clause immediately before such paragraph: “Commencing on the Pre-Waiver Covenant Compliance Date,”





Section 17.                                Amendment
to Section 7.19 of the Credit Agreement. Section 7.19 of the Credit Agreement is hereby amended and restated in its entirety with the following new Section 7.19:





7.19                     Net Present Rental Value.  Permit Net Present Rental Value to exceed (a) if the Pre-Waiver Covenant Compliance Date has not occurred, $45,000,000
and (b) commencing on the Pre-Waiver Covenant Compliance Date, $60,000,000 in each case calculated at the end of each fiscal quarter of Holdings.





Section 18.                                Covenants.  Until
the expiration of the Waiver Period, so long as any Lender shall have any Commitment hereunder, any Loan or Obligation shall remain unpaid or unsatisfied, each of Holdings and the Borrowers shall not, nor shall it permit any Subsidiary to, directly or indirectly:





(a) Minimum Cash Liquidity. For each calendar month ending on or after the Amendment No. 1 Effective Date, permit Qualified Cash of the Loan Parties (other than the Limited
Guarantors), to be less than $40,000,000, of which a minimum average balance of $15,000,000 in any such calendar month shall be deposited with Bank of America, N.A.





(b) Minimum Consolidated Interest Charges Coverage 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







 



 



 







 





Section 19.                                Representations and Warranties.  Holdings
and the Borrowers hereby represent and warrant to the Administrative Agent as follows:





(a) Representation and Warranties in the Credit Agreement.  The representations and warranties of Holdings and the Borrowers 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.


 

(b) 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.

 
(c) Authority, Etc.  The execution and delivery by Holdings and the Borrowers 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.





(d) Enforceability.  This Amendment and the Credit Agreement, as amended hereby, constitute
the legal, valid and binding obligations of Holdings and the Borrowers 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.





Section 20.                                Effectiveness of Amendment.  The
provisions of this Amendment shall become effective as of the date first set forth above upon the satisfaction of each of the following conditions, in each case in a manner and in form and substance satisfactory to the Administrative Agent (unless otherwise agreed to in writing by the Administrative Agent):





(a) The Borrowers shall have made a prepayment of the Term Loan in an aggregate amount equal to $19,000,000 where such prepayment shall be applied against the September 30, 2009 and the December 31, 2009 amortization payments required
under Section 2.07 of the Credit Agreement; and





(b) Total Revolving Credit Outstanding shall not exceed the Revolving Credit Facility; and





(c) This Amendment shall have been duly executed and delivered by each of the Borrowers, Holdings, the Administrative Borrower, the Guarantors, the Administrative Agent and the Required Lenders and shall be in full force and effect;
and





(d) The Administrative Agent shall have received a fully executed and effective Accession Agreement, dated as of the date hereof, by Cumberland Navigation Corp, Jessup Maritime Corp., Vedado Maritime Corp. and the Administrative Borrower
in favor of the Administrative Agent and the Secured Parties; and





(e) The Administrative Agent shall have received favorable legal opinions (including, without limitation, local opinions), addressed to the Administrative Agent and the other Secured Parties, of counsel to the Loan Parties, as to matters
requested by the Administrative Agent; and





(f) The Administrative Agent shall have received signed Officer’s Certificates, certified by a duly authorized officer of each Borrower and each Guarantor to be true and complete, (a) of the records of all corporate (or equivalent)
action taken by such Borrower or such Guarantor to authorize (i) such Borrower’s or such Guarantor’s execution and delivery of this Amendment, and (ii) such Borrower’s and such Guarantor’s entry into and carrying out the terms of this Amendment and the Credit Agreement, as amended hereby, and (b) of the Organization Documents; and





(g) The Administrative Agent shall have received a signed Officer’s Certificate, certified by a duly authorized officer of Holdings to be true and complete, attaching true, correct and complete fully executed copies of each amendment,
waiver and modification of each loan agreement evidencing the existing Indebtedness of certain Subsidiaries of the Loan Parties described on Schedule 7.02 of the Credit Agreement (including, without limitation, the various loan agreements among certain Subsidiaries of Holdings and The Royal Bank of Scotland plc, DVB Group Merchant Bank (Asia) Ltd., Credit Suisse, AIG Commercial Equipment Finance, Inc, Commerzbank AG and Berenberg Bank.), together
with each such loan agreement, as in effect immediately prior to the Amendment No. 1 Effective Date.

 



 



 







 




        (h) The
Administrative Agent shall have received a Valuation for each Vessel, dated on or about February 20, 2009 indicating the Fair Market Value for such Vessel as of January 22, 2009 and issued by an Appraiser, at the expense of the Borrowers and any other vessel appraisals, audits or certifications reasonably requested by the Administrative Agent; and

(i) The Borrowers shall have paid all fees set forth in the Fee Letter, dated as of February 13, 2009, to the Administrative Agent for its own account and for the account of the Required Lenders as provided therein; and





(j) The Borrowers shall have paid all reasonable unpaid fees and expenses of the Administrative Agent’s counsel, Bingham McCutchen LLP, to the extent that copies of invoices for such fees and expenses have been delivered to the
Borrowers; and

 

(k) Since the Administrative Agent’s receipt of forecasts of the consolidated balance sheets and statements of income or operations and cash flows of Holdings and its Subsidiaries (the “Projections”) on February 17, 2009, there shall
have been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect (other than the effect of 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), and there shall have been no material adverse change in the facts and information regarding the Loan
Parties as presented to the Administrative Agent.






(l) The Projections continue to fairly present the projected results of the financial condition of TBS and its Subsidiaries during the periods provided therein.





(m) The Lenders shall have received satisfactory evidence that the Administrative Agent (for itself and the other Secured Parties) shall have a valid and perfected first priority Lien on all of the Collateral and other assets of the
Loan Parties (including, without limitation, each of the Vessels).





(n) The Administrative Agent shall have received the Annual Deliverables.





(o) The Administrative Agent shall have received such other items, documents, agreements or actions as the Administrative Agent may reasonably request in order to effectuate the transactions contemplated hereby.





Section 21.                                No Other Amendments.  Except
as expressly provided in this Amendment, all of the terms and conditions of the Credit Agreement remain in full force and effect.





Section 22.                                Execution in Counterparts.  This
Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument.  In making proof of this Amendment it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought.





Section 23.                                Expenses.  
Pursuant to 11.04 of the Credit Agreement, all costs and expenses incurred or sustained by the Administrative Agent in connection with this Amendment, including the fees and disbursements of legal counsel for the Administrative Agent in producing, reproducing and negotiating the Amendment, will be for the account of the Borrowers whether or not the transactions contemplated by this Amendment are consummated.





Section 24.                                Miscellaneous.  THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW (OTHER THAN THE NEW YORK GENERAL OBLIGATIONS LAW §5-1401). The captions in this Amendment are for convenience of reference only and shall not define or limit the provisions hereof.  This Amendment shall constitute one of the Loan Documents referred to in the Credit Agreement and any failure by any Loan Party to comply with the terms
contained herein shall constitute an immediate Event of Default.





[Remainder of page intentionally left blank]









 



 







 



IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as of the date first set forth above.







	
The Borrowers:

 

ALBEMARLE MARITIME CORP.

ARDEN MARITIME CORP.

AVON MARITIME CORP.

BIRNAM MARITIME CORP.

BRISTOL MARITIME CORP.

CHESTER SHIPPING CORP.

CUMBERLAND NAVIGATION CORP.

DARBY NAVIGATION CORP.

DOVER MARITIME CORP.

ELROD MARITIME CORP.

EXETER SHIPPING CORP.

FRANKFORT MARITIME CORP.

GLENWOOD MARITIME CORP.

HANSEN SHIPPING CORP.

HARTLEY NAVIGATION CORP.

HENLEY MARITIME CORP.

HUDSON MARITIME CORP.

JESSUP MARITIME CORP.

MONTROSE MARITIME  CORP.

OLDCASTLE SHIPPING CORP.

QUENTIN NAVIGATION CORP.

RECTOR SHIPPING CORP.

REMSEN NAVIGATION CORP.

SHEFFIELD MARITIME CORP.

SHERMAN MARITIME CORP.

STERLING SHIPPING CORP.

STRATFORD SHIPPING CORP.

VEDADO MARITIME CORP.

VERNON MARITIME CORP.

WINDSOR MARITIME CORP.

 

 

By:/s/ Tara DeMakes

Name: Tara DeMakes

Title: Attorney-in-Fact

	  



























	
Holdings:

 

TBS INTERNATIONAL LIMITED

By: /s/ Tara DeMakes

Name: Tara DeMakes

Title: Attorney-in-Fact

	  
	 
	 
	
The Administrative Borrower:

TBS SHIPPING SERVICES INC.

By: /s/ Tara DeMakes

Name: Tara DeMakes

Title: Secretary

	  
	 
	 
	 
	 
	 
	 
	
The Administrative Agent:

BANK OF AMERICA, N.A.

 

By: /s/ Judith A. Huckins

Name: Judith A. Huckins

Title: Vice President

	  
	 
	 
	
The Lenders:

BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender

 

By:/s/ Judith A. Huckins

Name: Judith A. Huckins

Title: Vice President


























The Lenders (cont):









 

DVB GROUP MERCHANT BANK (ASIA) LTD.,

as co-Syndication Agent and a Lender

By: /s/ Evan D. Cohen        /s/ Martijn van Tuyl

Name: Evan D. Cohen    Martijn van Tuyl

Title: Senior Vice President

 







CITIBANK, N.A., as co-Syndication Agent and a Lender

By: /s/ Gilbert Torres

Name: Gilbert Torres

Title: Vice President

 

 

 

TD BANKNORTH, N.A., as Documentation Agent and a Lender

By: /s/ John Mercier

Name: John Mercier

Title: Senior Vice President

 







KEYBANK NATIONAL ASSOCIATION, as a Lender

By: /s/ Steven B. Vitale

Name: Steven B. Vitale

Title: Director

 







CAPITAL ONE LEVERAGE FINANCE CORP., as a Lender

By: /s/ Thomas F Furst

Name: Thomas F. Furst

Title: Vice President

 







GUARANTY BANK, as a Lender

By: /s Jeremy Jackson

Name: Jeremy Jackson

Title: Vice President





 

MERRILL LYNCH COMMERCIAL FINANCE CORP., as a Lender

By: /s/ Phillip J. Salter

Name: Phillip J. Salter

Title: Vice President

 



 

WEBSTER BANK NATIONAL ASSOCIATION, as a Lender

By: /s/ Michael P. McGovern

Name: Michael P. McGovern

Title: Vice President

 

 

 







COMERICA BANK, as a Lender

By: /s/ Sarune Baer

Name: Sarune Baer

Title: Vice President

 

 

 

 







TRISTATE CAPITAL BANK, as a Lender

By: /s/ Timothy A. Merriman

Name: Timothy A. Merriman

Title: Senior Vice President

 



 



 



 







 



GUARANTORS’ ACKNOWLEDGMENT





Each of the undersigned Guarantors hereby (a) acknowledges and consents to the foregoing Amendment and the Borrowers’ execution thereof; (b) ratifies and confirms all of their respective obligations and liabilities under the Loan Documents to which any of them is a party and ratifies and confirms that such obligations and liabilities
extend to and continue in effect with respect to, and continue to guarantee and secure, as applicable, the Obligations of the Borrowers under the Credit Agreement as amended; (c) acknowledge and confirm that the liens and security interests granted pursuant to the Loan Documents are and continue to be valid and perfected first priority liens and security interests (subject only to Permitted Encumbrances) that secure all of the Obligations on and after the date hereof; (d) acknowledges and agrees that, as of the
date hereof, such Guarantor does not have any claim or cause of action against the Administrative Agent or any Lender (or any of its respective directors, officers, employees or agents); and (e) acknowledges, affirms and agrees that, as of the date hereof, such Guarantor does not have any defense, claim, cause of action, counterclaim, offset or right of recoupment of any kind or nature against any of their respective obligations, indebtedness or liabilities to any Administrative Agent or any Lender.

The Guarantors:





TBS U.S. ENTERPRISES LLC

 

By: TBS SHIPPING SERVICES INC., its sole member





By: /s/ Tara DeMakes

Name: Tara DeMakes

Title: Secretary

 

TBS ENERGY LOGISTICS L.P.

                         By:  TBS
U.S. ENTERPRISES LLC, its general partner

                         By: TBS
SHIPPING SERVICES INC., its sole member





By: /s/ Tara DeMakes

Name: Tara DeMakes

Title: Secretary

 







The Guarantors:






	
  
	
ROYMAR SHIP MANAGEMENT, INC.





	
  
	
TBS SHIPPING SERVICES INC.





	
  
	
AZALEA SHIPPING & CHARTERING, INC.





	
  
	
COMPASS CHARTERING CORP.








By: /s/ Tara DeMakes

Name: Tara DeMakes

Title: Secretary









 



	 	TBS INTERNATIONAL LIMITED
	
  
	
WESTBROOK HOLDINGS LTD.






	
  
	
TRANSWORLD CARGO CARRIERS, S.A.





	
  
	
MERCURY MARINE LTD. (F/K/A TBS LOGISTICS LTD.)





	
  
	
TBS WORLDWIDE SERVICES INC.





	
  
	
BEEKMAN SHIPPING CORP.





	
  
	
FAIRFAX SHIPPING CORP.





	
  
	
LEAF SHIPPING CORP.





	
  
	
PACIFIC RIM SHIPPING CORP.





	
  
	
TBS AFRICAN VENTURES LIMITED





	
  
	
TBS EUROLINES, LTD.





	
  
	
TBS LATIN AMERICA LINER, LTD.





	
  
	
TBS MIDDLE EAST CARRIERS, LTD.





	
  
	
TBS NORTH AMERICA LINER LTD.






	
  
	
TBS OCEAN CARRIERS, LTD.

	 	TBS PACIFIC LINER, LTD.
	 	TBS WAREHOUSE & DISTRIBUTION GROUP LTD.
	 	TBS WAREHOUSE & EQUIPMENT HOLDINGS LTD.
	 	TBS LOGISTICS INCORPORATED
	 	TBSI NEW SHP DEVELOPMENT CORP.
	 	TBS MINING LIMITED




 

By: /s/ Tara DeMakes

Name: Tara DeMakes

Title: Attorney-in-Fact











 



 







 









EXHIBIT A

SCHEDULE 2.01(a)

 

COMMITMENTS

AND APPLICABLE PERCENTAGES

 














	
Lender
	
Term Commitment
	
Revolving Credit Commitment
	
Term Applicable Percentage
	
Revolving Credit

Applicable Percentage

	
Bank of America, N.A.
	
$11,364,485.98
	
$12,710,281.20
	
14.953271025%
	
14.953272000%

	
DVB Group Merchant Bank (Asia) Ltd.
	
$11,364,485.98
	
$12,710,280.52
	
14.953271025%
	
14.953271200%

	
 

Citibank, N.A.
	
$9,943,925.23
	
$11,121,495.20
	
13.084112147%
	
13.084112000%

	
TD Banknorth N.A.
	
$9,943,925.23
	
$11,121,495.20
	
13.084112147%
	
13.084112000%

	
Keybank National Association
	
$8,523,364.49
	
$9,532,710.56
	
11.214953270%
	
11.214953600%

	
Capital One Leverage Finance Corp.
	
$5,682,242.99
	
$6,355,139.92
	
7.476635516%
	
7.476635200%

	
Guaranty Bank
	
$5,682,242.99
	
$6,355,139.92
	
7.476635516%
	
7.476635200%

	
Merrill Lynch Commercial Finance Corp.
	
$4,261,682.26
	
$4,766,355.28
	
5.607476653%
	
5.607476800%

	
Webster Bank National Association
	
$3,551,401.87
	
$3,971,962.28
	
4.672897193%
	
4.672896800%

	
Comerica Bank
	
$2,841,121.49
	
$3,177,569.96
	
3.738317754%
	
3.738317600%

	
Tristate Capital Bank
	
$2,841,121.49
	
$3,177,569.96
	
3.738317754%
	
3.738317600%

	
Total
	
$76,000,000.00*
	
$85,000,000.00*
	
100.000000000%
	
100.000000000%
















 

*After the Amendment No. 1 Effective Date



 







 



 







 





 

 


SCHEDULE 5.05

SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS

MATERIAL INDEBTEDNESS AND OTHER LIABILITIES

OF

TBS INTERNATIONAL LIMITED AND SUBSIDIARIES

AS OF DECEMBER 31, 2008

















	 	 	
Interest Rate at December 31, 2008
	 	 	  
December 31, 

2008
	 	  
December 31, 

2007 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	
Liabilites
	 	 	 	 	 	 	 	 	 	 	 	 
	
Bank of America - term credit facility
	 	 	 	 	 	 	$	
-
	 	 	$	
50,446
	 
	
Bank of America - revolving credit facility
	 	 	 	 	 	 	 	
-
	 	 	 	
70,375
	 
	
Bank of America - term credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires December 31, 2011
	 	 	2.71	%	 	 	 	 	
95,000
	 	 	 	
-
	 
	
Bank of America - revolving credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires March 26, 2012
	 	 	4.08%-4.15	%	 	 	 	 	
75,000
	 	 	 	
-
	 
	
The Royal Bank of Scotland credit facility
	 	 	 	 	 	 	 	 	
-
	 	 	 	
4,345
	 
	
The Royal Bank of Scotland credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
new vessel buildings,  expires December  31, 2020
	 	 	3.21	%	 	 	 	 	
75,000
	 	 	 	
35,000
	 
	
Credit Suisse credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires December 12, 2017 and  February 19, 2018
	 	
3.22% & 3.30%
	 	 	 	 	 	
31,750
	 	 	 	
20,000
	 
	
DVB Group Merchant Bank (Asia) Ltd credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires January 23, 2013
	 	 	6.33	%	 	 	 	 	
60,324
	 	 	 	
-
	 
	
AIG Commercial Equipment Finance, Inc. credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires April 1, 2012
	 	 	5.00	%	 	 	 	 	
29,750
	 	 	 	
-
	 
	
Commerzbank AG credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires June 2, 2011
	 	 	3.72	%	 	 	 	 	
6,500
	 	 	 	
-
	 
	
Berenberg Bank credit facility,
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
expires June 19, 2012
	 	 	3.33	%	 	 	 	 	
9,750
	 	 	 	
-
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
Debt balance
	 	 	 	 	 	 	 	$	
383,074
	 	 	$	
180,166
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
Contingent Liabilites
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
The Royal Bank of Scotland-guarantee facility,
	 	 	 	 	 	 	 	 	
56,000
	 	 	 	
84,000
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
Total Liabilites and Contingent Liabilites
	 	 	 	 	 	 	 	$	
439,074
	 	 	$	
264,166
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 















 

 




 



 







 




SCHEDULE 5.08 (b)


 

EXISTING LIENS










	
Description of Lien
	
Amount

	
Mortgage Lien on the M/V Apache Maiden, M/V Inca maiden, M/V Navajo Princess, M/V Seneca Maiden, M/V Cherokee Princess, M/V Kickapoo Belle and M/V Kiowa Princess under First Preferred Panamanian Mortgage dated January 16, 2008, granted by Bedford Maritime Corp., Brighton Maritime Corp., Hari Maritime Corp., Prospect Navigation Corp., Hancock
Navigation Corp., Columbus Maritime Corp., and Whitehall Marine Transport Corp., as mortgagor, to DVB Group Merchant Bank (ASIA) Ltd., as mortgagee
	
$ 75,000,000

	
Mortgage Lien on the M/V Arapaho Belle and the M/V Oneida Princess under First Preferred Panamanian Mortgage dated December 7, 2007, granted by Claremont Shipping Corp. and Yorkshire Shipping Corp., as mortgagor, and Credit Suisse as mortgagee
	
 

 

 

$ 40,000,000

	
Mortgage lien on the M/V Zuni Princess, M/V Hopi Princess and the M/V Mohave Maiden under First Preferred Panamanian Mortgage dated February 29, 2008, granted by Amoros Maritime Corp., Lancaster Maritime Corp., and Chatham Maritime Corp., as mortgagor, and AIG Commercial Equipment Finance, Inc., as mortgagee.  Mortgage lien on the
M/V Zia Belle under Panamian First

Naval Mortgage dated March 27, 2009, granted by Sherwood Shipping Corp., as mortgagor and AIG Commercial Equipment Finance, Inc., as mortgagee
	
$ 35,000,000

	
Mortgage lien on the M/V Caribe Maiden under First Preferred Panamanian Mortgage dated May 28, 2008, granted by Dyker Maritime Corp. as mortgagor, and Commerzbank AG, as mortgagee
	
$ 12,500,000

	
Mortgage lien on the M/V Ottawa Princess under First Preferred Panamanian Mortgage dated June 19, 2008, granted by Grainger Maritime Corp. as mortgagor, and Berenberg Bank, as mortgagee
	
$ 13,000,000

	
Lien of the Royal Bank of Scotland plc on Account No.           in the name of Argyle Maritime Corp. , Caton Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., McHenry Maritime Corp., and Sunswyck Maritime Corp.
	
$ 20,000,000








 


 



 



 







 



SCHEDULE 5.08 (c)

REAL PROPERTY OWNED

 

NONE




 








 



 







 




 



 


SCHEDULE 5.08(d) (i)





LEASED REAL PROPERTY (LESSEE)









Lessee:                      TBS Shipping Services, Inc.

Lessor:                      Joseph E. Royce

Lease Date:                                January 1, 2009

Exp. Date:                                December 31, 2009

Premises:                                612 East Grassy Sprain Road

Yonkers, New York 10710

Westchester County, State of New York

Annual Cost:                                $240,000.00 USD ($20,000.00 USD Monthly)











Lessee:                      Roymar Ship Management, Inc.

Lessor:                      Ventresca Realty Corp.

Lease Date:                                December 1, 2009

Exp. Date:                                November 30, 2010

Premises:                                455 Central Park Avenue, Suite 308, 304 & 219

Scarsdale, New York 10583

Westchester County, State of New York

Annual Cost:                                $325,524.00 USD ($27,127 USD Monthly)





 



 







 





 

SCHEDULE 5.08 (d) (ii)

 

LEASED REAL PROPERTY (LESSOR)

 

NONE




 








 



 







 





 

 


SCHEDULE 5.08 (e)



EXISTING INVESTMENTS

 













	
Description of Investment
	
Amount

	 	 
	
(A) GMT Shipping Line (2002) LTD. and TBS African Line Ventures, LTD. entered
	 
	
into a joint venture to provide service between the East and North
	 
	
Coasts of South America and South Africa.
	 
	
$100,000 of the amount shown represents TBS’s capital contribution to the joint
	 
	
venture company, GMTBS Africa Line, Ltd. (“GMTBS”); and the remaining balance represents
	 
	
retained profits from GMTBS from inception of partnership.
	
$176,719

	 	 
	
(B) TBS Warehouse and Distribution Group Ltd., and Cargonaves S.A. entered into
	 
	
 a joint venture to purchase a warehouse in Peru.
	
$1,900,000

	 	 
	
(C) TBS Mining Limited, purchased from GAT Group 50% of the stock of GAT TBS
	 
	
Consorcio S.A. , which operates a limestone mine located in the Dominican Republic.
	
$2,760,000

	 	 
	 	 
	 	 




















 



 







 











SCHEDULE 5.13





SUBSIDIARIES AND OTHER EQUITY INVESTMENTS; LOAN PARTIES





PART (a) - Subsidiaries





Subsidiaries of TBS International Limited (“Holdings”) in which Holdings owns 100% of all their issued stock:






	
1.  
	
Mercury Marine Ltd.




 


	
2.  
	
Roymar Ship Management Inc.




 


	
3.  
	
TBS Shipping Services Inc.




 


	
4.  
	
TBS Mining Ltd.




 


	
5.  
	
TBSI New Ship Development Corp.




 


	
6.  
	
TBS Warehouse & Equipment Holdings Ltd.




 


	
7.  
	
TBS Worldwide Services Inc.




 


	
8.  
	
Transworld Cargo Carriers S.A.




 





Subsidiaries of Westbrook Holdings Ltd. (“Westbrook”) in which Westbrook owns 100% of all their issued stock:






	
1.  
	
Albemarle Maritime Corp.




 


	
2.  
	
Amoros Maritime Corp.




 


	
3.  
	
Arden Maritime Corp.




 


	
4.  
	
Argyle Maritime Corp.




 


	
5.  
	
Avon Maritime Corp.




 


	
6.  
	
Bedford Maritime Corp.




 


	
7.  
	
Beekman Shipping Corp.




 


	
8.  
	
Birnam Maritime Corp.




 


	
9.  
	
Brighton Maritime Corp.




 


	
10.  
	
Bristol Maritime Corp.




 


	
11.  
	
Caton Maritime Corp.




 


	
12.  
	
Chatham Maritime Corp.




 


	
13.  
	
Chester Shipping Corp.




 


	
14.  
	
Claremont Shipping Corp.




 


	
15.  
	
Columbus Maritime Corp.




 


	
16.  
	
Cumberland Navigation Corp.




 


	
17.  
	
Darby Navigation Corp.




 


	
18.  
	
Dorchester Maritime Corp.




 


	
19.  
	
Dover Maritime Corp.




 


	
20.  
	
Dyker Maritime Corp.




 


	
21.  
	
Elrod Shipping Corp.




 


	
22.  
	
Exeter Shipping Corp.




 


	
23.  
	
Fairfax Shipping Corp.




 


	
24.  
	
Frankfort Maritime Corp.




 


	
25.  
	
Glenwood Maritime Corp.




 


	
26.  
	
Grainger Maritime Corp.




 


	
27.  
	
Hancock Navigation Corp.




 


	
28.  
	
Hansen Shipping Corp.




 


	
29.  
	
Hari Maritime Corp.




 


	
30.  
	
Hartley Navigation Corp.




 


	
31.  
	
Henley Maritime Corp.




 


	
32.  
	
Hudson Maritime Corp.




 


	
33.  
	
Jessup Maritime Corp.




 


	
34.  
	
Lancaster Maritime Corp.




 


	
35.  
	
Leaf Shipping Corp.




 


	
36.  
	
Longwoods Maritime Corp.




 


	
37.  
	
McHenry Maritime Corp.




 


	
38.  
	
Montrose Maritime Corp




 


	
39.  
	
Oldcastle Shipping Corp.




 


	
40.  
	
Pacific Rim Shipping Corp.




 


	
41.  
	
Prospect Navigation Corp.




 


	
42.  
	
Quentin Navigation Corp.




 


	
43.  
	
Rector Shipping Corp.




 


	
44.  
	
Remsen Navigation Corp.




 


	
45.  
	
Sheffield Maritime Corp.




 


	
46.  
	
Sherman Maritime Corp.




 


	
47.  
	
Sherwood Shipping Corp.




 


	
48.  
	
Sterling Shipping Corp.




 


	
49.  
	
Stratford Shipping Corp.




 


	
50.  
	
Sunswyck Maritime Corp.




 


	
51.  
	
Vedado Maritime Corp.




 


	
52.  
	
Vernon Maritime Corp.




 


	
53.  
	
Whitehall Marine Transport Corp.




 


	
54.  
	
Windsor Maritime Corp.




 


	
55.  
	
Yorkshire Shipping Corp.




 



 

 

Subsidiaries of TBS Shipping Services Inc. in which it owns 100% of all their issued stock:





1.               Compass Chartering Corp.

 

2.               Azalea Shipping and Chartering, Inc.

 

3.               TBS Logistics Incorporated

 

 

TBS Shipping Services Inc. is the sole member of the following limited liability company:

 

1.               TBS U.S. Enterprises LLC



 

TBS Shipping Services Inc. is a limited partner of the following limited liability partnership and owns 100% of all interests in the partnership, while TBS U.S. Enterprises LLC is the general partner:

 


	
1.
	
TBS Energy Logistics L.P.








Subsidiaries of TBS Worldwide Services Inc. in which it owns 100% of all their issued stock:

 

1.               TBS African Ventures Limited

 

2.               TBS Eurolines, Ltd.

 

3.               TBS Latin America Liner, Ltd.

 

4.               TBS Middle East Carriers, Ltd.

 

5.               TBS North America Liner, Ltd.

 

6.               TBS Ocean Carriers, Ltd.

 

7.               TBS Pacific Liner, Ltd.

 

 

Subsidiaries of TBS Warehouse & Equipment Holdings Ltd. in which it owns 100% of all their issued stock:





1.               TBS Warehouse & Distribution Group Ltd.









PART (b) - Equity Investments in Other Corporations






	
 
	
1.
	
TBS African Ventures Limited owns 50% of the stock issued by GMTBS Africa Lines Limited.




 


	
2.  
	
TBS Warehouse & Distribution Group Ltd. owns 50% of the stock issued by Panamerican Port Services S.A.C.




 


	
3.  
	
TBS Mining Limited owns 50% of the stock issued by GAT TBS Consorcio S.A.




 


	
 
	
PART (c) - Ownership of Borrowers








Holdings owns 100% of the issued stock of Westbrook and Westbrook owns 100% of the issued

stock of all of the Borrowers which are listed below:

 



	
1
	
Albemarle Maritime Corp.

	
2
	
Arden Maritime Corp.

	
3
	
Avon Maritime Corp.

	
4
	
Birnam Maritime Corp.

	
5
	
Bristol Maritime Corp.

	
6
	
Chester Shipping Corp.

	
7
	
Cumberland Navigation Corp.

	
8
	
Darby Navigation Corp.

	
9
	
Dover Maritime Corp.

	
10
	
Elrod Shipping Corp.

	
11
	
Exeter Shipping Corp.

	
12
	
Frankfort Maritime Corp.

	
13
	
Glenwood Maritime Corp.

	
14
	
Hansen Shipping Corp.

	
15
	
Hartley Navigation Corp.

	
16
	
Henley Maritime Corp.

	
17
	
Hudson Maritime Corp.

	
18
	
Jessup Maritime Corp.

	
19
	
Montrose Maritime Corp

	
20
	
Oldcastle Shipping Corp.

	
21
	
Quentin Navigation Corp.

	
22
	
Rector Shipping Corp.

	
23
	
Remsen Navigation Corp.

	
24
	
Sheffield Maritime Corp.

	
25
	
Sherman Maritime Corp.

	
26
	
Sterling Navigation Corp.

	
27
	
Stratford Shipping Corp.

	
28
	
Velado Maritime Corp.

	
29
	
Vernon Maritime Corp.

	
30
	
Windsor Maritime Corp





 





PART (d) - Loan Parties



 



	
Borrowers
	
Jurisdiction of Incorporation
	
   Principal place of business
	
Federal I.D. Number

	
Albemarle Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0442951

	
Arden Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0185259

	
Avon Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0431582

	
Birnam Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0463679

	
Bristol Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0452038

	
Chester Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0442952

	
Cumberland Navigation Corp.
	
Marshall Islands
	
Marshall Islands
	 
	
Darby Navigation Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0474419

	
Dover Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0481561

	
Elrod Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0514921

	
Exeter Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0510614

	
Frankfort Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0185271

	
Glenwood Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0438877

	
Hansen Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0442953

	
Hartley Navigation Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0574852

	
Henley Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0185272

	
Hudson Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0438879

	
Jessup Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	 
	
Montrose Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0535981

	
Oldcastle Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0185257

	
Quentin Navigation Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0582033

	
Rector Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0442954

	
Remsen Navigation Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0462172

	
Sheffield Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0421934

	
Sherman Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0406979

	
Sterling Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0454510

	
Stratford Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0423934

	
Vedaldo Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	 
	
Vernon Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0789644

	
Windsor Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0442955

	 	 	 	 




 


































	 	
JURISDICTION
	
   PRINCIPAL PLACE
	
    FEDERAL

	
         GUARANTOR
	
OF INCORPORATION
	
   OF BUSINESS
	
    I.D. NUMBER

	 	 	 	 
	
Azalea Shipping and Chartering, Inc.
	
New York
	
New York
	
11-3329199

	
Beekman Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0510616

	
Compass Chartering Corp.
	
New York
	
New York
	
13-3826713

	
Fairfax Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0510498

	
Jessup Maritime Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0547763

	
Leaf Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0418760

	
Mercury Marine Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0380637

	
Pacific Rim Shipping Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0148758

	
Roymar Ship Management Inc.
	
New York
	
New York
	
13-3671800

	
TBS African Ventures Limited
	
Marshall Islands
	
Marshall Islands
	
98-0479144

	
TBS Energy Logistics L.P.
	
Partnership-Delaware
	
Delaware
	
56-2577864

	
TBS Eurolines, Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0191213

	
TBS International Limited
	
Bermuda
	
Bermuda
	
98-0225954

	
TBS Latin America Liner, Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0187442

	
TBS Logistics Incorporated
	
Texas
	
Texas
	
26-0877704

	
TBS Middle East Carriers, Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0404203

	
TBS Mining Limited
	
Marshall Islands
	
Marshall Islands
	
N/A

	
TBS North America Liner, Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0334211

	
TBS Ocean Carriers, Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0187441

	
TBS Pacific Liner, Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0187516

	
TBS Shipping Services Inc.
	
New York
	
New York
	
13-3705134

	
TBS U.S. Enterprises LLC
	
Company-Delaware
	
Texas
	
42-1702901

	
TBS Warehouse & Distribution Group Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0572663

	
TBS Warehouse & Equipment Holdings Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0570627

	
TBS Worldwide Services Inc.
	
Marshall Islands
	
Marshall Islands
	
98-0187513

	
TBSI New Ship Development Corp.
	
Marshall Islands
	
Marshall Islands
	
98-0603671

	
Transworld Cargo Carriers S.A.
	
Marshall Islands
	
Marshall Islands
	
98-0182303

	
Westbrook Holdings Ltd.
	
Marshall Islands
	
Marshall Islands
	
98-0185273












































 




 



 







 




 


SCHEDULE 5.17 

 

INTELLECTUAL PROPERTY  OWNED

 

NONE



 

 

 

 






 



 







 



SCHEDULE  5.27 VESSELS






	 	 	 	 	 	
Age
	 	 	 	
Fair
	
60%

	
Hull
	 	 	
Classification
	
Certification
	
Year
	 	
Purchase
	 	
Market
	
Loan

	
Number
	
Current Register Owner
	
Vessel Registered
	
Society
	
Number
	
2/28/2009
	
Type
	
Price
	
Dwt
	
Value
	
Value

	 	 	 	 	 	 	 	 	 	 	 
	
2843
	
Hansen Shipping Corp.
	
Panama/Philippines
	
Lloyds Register
	
8306929
	
21.0
	
Tweendeck
	
 $      8,625,000
	
     17,325
	
 [***]
	
 [***]

	
399
	
Exeter Shipping Corp.
	
Panama/Philippines
	
Lloyds Register
	
8412144
	
22.0
	
Bulk Carrier
	
       16,075,000
	
     41,808
	
 [***]
	
 [***]

	
273
	
Dover Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
844688
	
24.0
	
Tweendeck
	
         8,100,000
	
     19,777
	
 [***]
	
 [***]

	
3026
	
Sterling Shipping Corp.
	
Panama/Philippines
	
ABS
	
8433318
	
24.0
	
Bulk Carrier
	
       15,500,000
	
     39,225
	
 [***]
	
 [***]

	
1291
	
Hudson Maritime Corp.
	
Panama/Philippines
	
DNV
	
15515
	
24.0
	
Bulk Carrier
	
       12,750,000
	
     44,146
	
 [***]
	
 [***]

	
1266
	
Stratford Shipping Corp.
	
Panama/Philippines
	
Lloyds Register
	
8109008
	
25.0
	
Bulk Carrier
	
       12,295,000
	
     40,876
	
 [***]
	
 [***]

	
491
	
Sheffield Maritime Corp.
	
Panama/Philippines
	
Lloyds Register
	
8029715
	
26.0
	
Bulk Carrier
	
       12,360,000
	
     45,526
	
 [***]
	
 [***]

	
1924
	
Remsen Navigation Corp.
	
Panama/Philippines
	
Lloyds Register
	
8312746
	
24.0
	
Bulk Carrier
	
       13,750,000
	
     37,734
	
  [***] 
	
 [***]

	
872
	
Glenwood Maritime Corp.
	
Panama/Philippines
	
Lloyds Register
	
8309347
	
24.0
	
Bulk Carrier
	
       12,240,000
	
     39,333
	
 [***]
	
 [***]

	
1043
	
Albermarle Maritime Corp.
	
Panama/Philippines
	
ABS
	
8202286
	
26.0
	
Bulk Carrier
	
       12,000,000
	
     42,360
	
 [***]
	
 [***]

	
1057
	
Vernon Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
832832
	
25.0
	
Tweendeck
	
            744,034
	
     26,320
	
 [***]
	
 [***]

	
2616
	
Elrod Shipping Corp
	
Panama/Philippines
	
Lloyds Register
	
8820717
	
19.0
	
Tweendeck
	
       16,950,000
	
     28,835
	
 [***]
	
 [***]

	
2875
	
Darby Navigation Corp.
	
Panama/Philippines
	
ClassNK
	
842810
	
24.0
	
Bulk Carrier
	
       10,000,000
	
     38,885
	
 [***]
	
 [***]

	
202
	
Sherman Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
824039
	
26.0
	
Bulk Carrier
	
         2,514,700
	
     35,025
	
 [***]
	
 [***]

	
1353
	
Frankfort Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
841663
	
24.0
	
Tweendeck
	
       12,000,000
	
     22,323
	
 [***]
	
 [***]

	
1926/27
	
Windsor Maritime Corp.
	
Panama/Philippines
	
Lloyds Register
	
8312722
	
23.0
	
Bulk Carrier
	
       15,300,000
	
     37,268
	
 [***]
	
 [***]

	
2844
	
Rector Shipping Corp.
	
Panama/Philippines
	
ABS
	
8700719
	
21.0
	
Tweendeck
	
         8,625,000
	
     17,325
	
 [***]
	
 [***]

	
10119
	
Birnam Maritime Corp.
	
Panama/Philippines
	
ABS
	
89147923
	
19.0
	
Bulk Carrier
	
       18,500,000
	
     42,248
	
 [***]
	
 [***]

	
2839
	
Oldcastle Shipping Corp.
	
Panama/Philippines
	
Lloyds Register
	
8314847
	
23.0
	
Tweendeck
	
         6,300,000
	
     23,278
	
 [***]
	
 [***]

	
2862
	
Chester Shipping Corp.
	
Panama/Philippines
	
Lloyds Register
	
8314885
	
22.0
	
Tweendeck
	
         8,000,000
	
     17,325
	
 [***]
	
 [***]

	
1059
	
Arden Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
833674
	
25.0
	
Tweendeck
	
            744,034
	
     26,320
	
 [***]
	
 [***]

	
2868
	
Henley Marine Corp.
	
Panama/Philippines
	
Lloyds Register
	
8314835
	
23.0
	
Tweendeck
	
         6,000,000
	
     23,278
	
 [***]
	
 [***]

	
1289
	
Bristol Maritime Corp.
	
Panama/Philippines
	
DNV
	
15633
	
24.0
	
Bulk Carrier
	
       12,750,000
	
     44,146
	
 [***]
	
 [***]

	
3240
	
Avon Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
910566
	
17.0
	
Tweendeck
	
       13,000,000
	
     28,843
	
 [***]
	
 [***]

	
10126
	
Montrose Maritime Corp.
	
Panama/Philippines
	
Lloyds Register
	
0308A
	
18.0
	
Bulk Carrier
	
       29,000,000
	
     42,475
	
 [***]
	
 [***]

	
1941
	
Hartley Navigation Corp.
	
Panama/Philippines
	
ClassNK
	
853085
	
23.0
	
Bulk Carrier
	
       30,300,000
	
     42,842
	
 [***]
	
 [***]

	
1294
	
Quentin Navigation Corp.
	
Panama/Philippines
	
Lloyds Register
	
8312784
	
23.0
	
Bulk Carrier
	
       34,020,600
	
     42,219
	
 [***]
	
 [***]

	
SG10
	
Jessup Maritime Corp.
	
Panama/Philippines
	
BV
	
981T34
	
26.0
	
Bulk Carrier
	
       10,700,000
	
     22,588
	
 [***]
	
 [***]

	
4765
	
Cumberland Navigation Corp.
	
Panama/Philippines
	
Lloyds Register
	
8306838
	
23.0
	
Bulk Carrier
	
       35,250,000
	
     40,902
	
 [***]
	
 [***]

	
3027
	
Vedado Maritime Corp.
	
Panama/Philippines
	
ClassNK
	
922825
	
16.0
	
Bulk Carrier
	
       44,000,000
	
     38,852
	
 [***]
	
 [***]

	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	
 $  438,393,368
	 	
$ [***]
	
$ [***]

	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 










 



 







 





SCHEDULE  5.29   -  ACCOUNTS   









	
Guarantor
	 	
Bank Name 
	 	
Address 
	 	
Telephone Number 
	 	
Account Number 
	
Purpose of Account

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	
Leaf Shipping
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Transworld Cargo Carriers S.A.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Pacific Liner Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Pacific Liner Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Pacific Liner Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Pacific Liner Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Argyle Maritime Corp., Caton Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., McHenry Maritime Corp., Sunswyck Maritime Corp.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Deposit Account

	
Argosy Shipping Ltd.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Collateral Account

	
TBS Worldwide Services Inc
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Transworld Cargo Carriers S.A.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Logistics Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Shipping Services Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Roymar Ship Management Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Roymar Ship Management Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Shipping Services Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Roymar Ship Management Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Roymar Ship Management Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Mining Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Roymar Ship Management Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Compass Chartering Corp
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Compass Chartering Corp
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Compass Chartering Corp
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Windsor Maritime Corp.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Cortlandt Navigation Corp
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Azalea Shipping & Chartering
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Azalea Shipping & Chartering
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Shipping Services Inc.
	 	 	[***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS Shipping Services Inc.
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Roymar Ship Management Inc.
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Claremont Shipping andYork Shipping TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Grainger Maritime Corp-TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
Dyker Maritime Corp - TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	
TBS International Limited
	 	 	[	***]	 	 	[	***]	 	 	[	***]	 	 	[	***]	
Operating Account

	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 








 



 







 




SCHEDULE 6.12   GUARANTOR

 


	 	
 

 

	 	 
	 	
Azalea Shipping and Chartering, Inc.

	 	
Beekman Shipping Corp.

	 	
Compass Chartering Corp.

	 	
Fairfax Shipping Corp.

	 	
Jessup Maritime Corp.

	 	
Leaf Shipping Corp.

	 	
Mercury Marine Ltd.

	 	
Pacific Rim Shipping Corp.

	 	
Roymar Ship Management Inc.

	 	
TBS African Ventures Limited

	 	
TBS Energy Logistics L.P.

	 	
TBS Eurolines, Ltd.

	 	
TBS International Limited

	 	
TBS Latin America Liner, Ltd.

	 	
TBS Logistics Incorporated

	 	
TBS Middle East Carriers, Ltd.

	 	
TBS Mining Limited

	 	
TBS North America Liner, Ltd.

	 	
TBS Ocean Carriers, Ltd.

	 	
TBS Pacific Liner, Ltd.

	 	
TBS Shipping Services Inc.

	 	
TBS U.S. Enterprises LLC

	 	
TBS Warehouse & Distribution Group Ltd.

	 	
TBS Warehouse & Equipment Holdings Ltd.

	 	
TBS Worldwide Services Inc.

	 	
TBSI New Ship Development Corp.

	 	
Transworld Cargo Carriers S.A.

	 	
Westbrook Holdings Ltd.













 



 







 






 
SCHEDULE 7.02 
EXISTING INDEBTEDNESS

 








	 	 	 
	
Liabilities, other than Liabilities related to the Bank of America Facility
	 	
As of December 31, 2008

	
Loan debt under Loan Agreement dated March 29, 2007, between Argyle Maritime Corp., Caton Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., McHenry Maritime Corp., and Sunswyck Martime Corp., as Borrower, and The Royal Bank of Scotland plc, as Lender
	
$75,000,000

	
Loan debt under Loan Agreement dated January 16, 2008, between Bedford Maritime Corp., Brighton Maritime Corp., Hari Maritime Corp., Prospect Navigation Corp., Hancock Navigation Corp., Columbus Maritime Corp., and Whitehall Marine Transport Corp., as Borrower, and DVB Group Merchant Bank (ASIA) Ltd., as Lender
	
$60,324,000

	
Loan debt under Loan Agreement dated December 7, 2007, between Claremont Shipping Corp. and Yorkshire Shipping Corp., as Borrower, and Credit Suisse as Lender
	
$31,750,000

	
Loan debt under Loan Agreement dated February 29, 2008, between Amoros Maritime Corp., Lancaster Maritime Corp., and Chatham Maritime Corp., as Borrower, and AIG Commercial Equipment Finance, Inc., as Lender
	
$29,750,000

	
Loan debt under Loan Agreement dated June 2, 2008, between Dyker Maritime Corp., as Borrower, and Commerzbank as Lender
	
$6,500,000

	
Loan debt under Loan Agreement dated June 19, 2008, between Grainger Maritime Corp., as Borrower, and Joh Berenberg, Gossler & Co. KG as Lender
	
$9,750,000

	 	 	 
	
Total Liabilities
	 	
$213,074,000

	 	 	 
	
Contingent Liabilities
	 	 
	
Guarantee Facility Agreement dated March 29, 2007, between Argyle Maritime Corp., Caton Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., McHenry Maritime Corp., and Sunswyck Martime Corp., as Borrower, and The Royal Bank of Scotland plc, as Lender
	
$56,000,000

	 	 	 
	
Total Liabilities and Contingent Liabilites
	 	
$269,074,000

	 	 	 
	 	 	 







 

 

 




 





 



 







 








SCHEDULE 7.11





BURDENSOME AGREEMENTS









Loan Agreement dated March 29, 2007, between Argyle Maritime Corp., Caton Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp., McHenry Maritime Corp., and Sunswyck Martime Corp., as Borrower, and The Royal Bank of Scotland plc, as Lender





Loan Agreement dated January 16, 2008, between Bedford Maritime Corp., Brighton Maritime Corp., Hari Maritime Corp., Prospect Navigation Corp., Hancock Navigation Corp., Columbus Maritime Corp., and Whitehall Marine Transport Corp., as Borrower, and DVB Group Merchant Bank (ASIA) Ltd., as Lender





Loan Agreement dated December 7, 2007, between Claremont Shipping Corp. and Yorkshire Shipping Corp., as Borrower, and Credit Suisse as Lender





Loan Agreement dated February 29, 2008, between Amoros Maritime Corp., Lancaster Maritime Corp., and Chatham Maritime Corp., as Borrower, and AIG Commercial Equipment Finance, Inc., as Lender





Loan Agreement dated June 2, 2008, between Dyker Maritime Corp., as Borrower, and Commerzbank as Lender





Loan Agreement dated June 19, 2008, between Grainger Maritime Corp., as Borrower, and Joh Berenberg, Gossler & Co. KG, as Lender
















 



 







 






EXHIBIT B

 

See Attached. [Exhibits D-1 and D-2 to the Credit Agreement are hereby amended and restated in their entirety with Exhibits D-1 and D-2 attached hereto as Exhibit B.]

 

 



 



 







 



EXHIBIT D-1







FORM OF COMPLIANCE CERTIFICATE

 

Financial Statement Date:  ________, ____

 

To:           Bank of America, N.A., as Administrative Agent

 

Ladies and Gentlemen:

 

Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 26, 2008 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as
therein defined), among Albemarle Maritime Corp., Arden Maritime Corp., Avon Maritime Corp., Birnam Maritime Corp., Bristol Maritime Corp., Chester Shipping Corp., Cumberland Navigation Corp., Darby Navigation Corp., Dover Maritime Corp., Elrod Shipping Corp., Exeter Shipping Corp. Frankfort Maritime Corp., Glenwood Maritime Corp., Hansen Shipping Corp., Hartley Maritime Corp., Henley Maritime Corp., Hudson Maritime Corp., Jessup Maritime Corp., Montrose Maritime Corp., Oldcastle Shipping Corp., Quentin Maritime
Corp., Rector Shipping Corp., Remsen Navigation Corp., Sheffield Maritime Corp., Sherman Maritime Corp., Sterling Shipping Corp., Stratford Shipping Corp., Vedado Maritime Corp., Vernon Maritime Corp., Windsor Maritime Corp., each a Republic of the Marshall Islands corporation (collectively, the “Borrowers”, and, each individually, a “Borrower”), TBS International
Limited, a Bermuda corporation (“Holdings”), TBS Shipping Services Inc. as Administrative Borrower, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager.

 

The undersigned Responsible Officer of Holdings hereby certifies as of the date hereof that he/she is the ___________________________________ of Holdings, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of Holdings and Its Subsidiaries, and that:

 

[Use following paragraph 1 for fiscal year-end financial statements]

 

Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of Holdings ended as of the above date, setting forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, together with (i) a report and opinion of a Registered Public Accounting Firm of nationally recognized standing, which report and opinion has been prepared in accordance with generally accepted auditing standards and applicable Securities Laws and is not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of
such audit or with respect to the absence of any material misstatement and (ii) an opinion of such Registered Public Accounting Firm independently assessing Holdings’ internal controls over financial reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard No. 2, and Section 404 of Sarbanes-Oxley expressing a conclusion that contains no statement that there is a material weakness in such internal controls.

 

[Use following paragraph 1 for fiscal quarter-end financial statements]

 

Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of Holdings ended as of the above date.  Such consolidated financial
statements fairly present the financial condition, results of operations and cash flows of Holdings and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.

 

The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of Holdings and each Subsidiary during the accounting period covered by the attached financial statements.

 

A review of the activities of Holdings and each Subsidiary during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period Holdings and each Subsidiary performed and observed all its Obligations under the Loan Documents, and

 

[select one:]

 

[to the best knowledge of the undersigned during such fiscal period, each Loan Party performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing, and concurrently with the delivery of the financial statements referred to above, is a certificate of Holdings independent
certified public accounts certifying such financial statements and stating that in making the examination necessary therefore no knowledge was obtained of any Default.]

 

--or--

 

[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]

 

1.           The representations and warranties of each Borrower and Holdings contained in Article V of the Agreement and all representations and warranties of any Loan Party that are contained in any document furnished
at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.

 

2.           The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate on and as of the date of this Certificate.

 

 

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as

 

of                                ,                      .

 

TBS INTERNATIONAL LIMITED

 

By:                                                                        

Name:

Title:





 

 



 



 







 






Schedule 1





See attached. [unaudited financial statements required to be attached at each reporting period]

 

 

 



 



 



 







 



[Schedule 2 below to be used during the Waiver Period]





For the Quarter/Year/Month ended ___________________, ____ (“Statement Date”)

 

SCHEDULE 2

 

to the Compliance Certificate

 





 


	
1.  Minimum Cash Liquidity (Section 18(a) of  Amendment No. 1) for the calendar month ending ____________________ .

	 	 	 	 	 
	 	
A.  Qualified Cash: (the amount of cash and Cash Equivalents which is freely transferable and not subject to a Lien (other than the Lien in favor of the Administrative Agent), pledge, security interest, encumbrance, escrow or cash collateral arrangement or any other restriction
on its use):
	
 

 

$_______________

	 	 	 	 	 
	 	
D.  Item A Above Shall Not Be Less Than:
	
$40,000,000

	 	 	 	 	 
	 	
E.  Compliance
	
Yes
	
No








 


	
2.  Maximum Consolidated Leverage Ratio (Section 7.13 (c) of the Credit Agreement) for the four fiscal quarters ending ____________________ . (Waived During Waiver Period)

	 	 	 	 	 
	 	
A.  Consolidated Funded Indebtedness of Holdings and its Subsidiaries (for the purpose of calculating Consolidated Leverage Ratio, Consolidated Funded Indebtedness shall not include Permitted New Vessel Construction Indebtedness in an amount up to $150,000,0001 in
the aggregate used to finance new build multipurpose tweendeck bulk carrier shipping vessels so long as such vessel remains in the construction phase):
	 
	 	 	 	 	 
	 	 	
1.  The outstanding principal amount of all obligations, whether current or long-term, for borrowed money (included Obligations under the Agreement), and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments:
	
 

 

$_______________

	 	 	 	 
	 	 	
2.  plus, all purchase money Indebtedness:
	
$_______________

	 	 	 	 
	 	 	
3.  plus, all direct obligations arising under letter of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments:
	
 

$_______________

	 	 	 	 
	 	 	
4.  plus, all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business):
	
 

$_______________

	 	 	 	 
	 	 	
5.  plus, Attributable Indebtedness:
	
$_______________

	 	 	 	 
	 	 	
6.  plus, without duplication, all Guarantees with respect to outstanding indebtedness of the types specified in Item A(1) through Item A(5) above of Persons other than the Borrowers or any Subsidiary:
	
 

 

$_______________

	 	 	 	 
	 	 	
7.  plus, all Indebtedness of the types referred to in Item A(1) though Item A(6) of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which a Borrower or a Subsidiary is a general partner or a joint venture, unless such Indebtedness is expressly made non-recourse
to such Borrower or such Subsidiary:
	
 

 

 

$_______________

	 	 	 	 
	 	 	
8.  Total (Items A(1) through A(7) above):
	
$_______________

	 	 	 
	 	
B.  Consolidated EBITDA of Holdings and its Subsidiaries for the Measurement Period:
	 
	 	 	 	 
	 	 	
1.  Consolidated Net Income of Holdings and its Subsidiaries:
	
$_______________

	 	 	 	 
	 	 	
To the extent deducted in calculating Consolidated Net Income (and without duplication):
	 
	 	 	 	 
	 	 	
2.  plus, Consolidated Interest Charges:
	
$_______________

	 	 	 	 
	 	 	
3.  plus, the provision for Federal, state, local and foreign income taxes payable:
	
$_______________

	 	 	 	 
	 	 	
4.  plus, depreciation and amortization expense:
	
$_______________

	 	 	 	 
	 	 	
5.  plus, net losses from the sales of vessels as permitted under the Agreement (in each case of or by Holdings and its Subsidiaries for such Measurement Period):
	
 

$_______________

	 	 	 	 
	 	 	
6.  plus, any noncash impairment charges in the aggregate, incurred during the fiscal year of Holdings and its Subsidiaries ending December 31, 2009 in respect of any of Holdings and its Subsidiaries goodwill and Vessels
	 
	 	 	 	 
	 	 	
7.  Total Items B(1) through B(6) above:
	
$_______________

	 	 	 	 
	 	 	
8.minus, the following to the extent included in calculating such Consolidated Net Income, all net gains from the sale of vessels as permitted under this Agreement (in each case of or by Holdings and its Subsidiaries for such Measurement Period):
	
 

 

$_______________

	 	 	 	 
	 	 	
9. Total Item B(7) less Item B(8) above2:
	
$_______________

	 	 	 	 
	 	
C.  The Ratio of Item A(8) to Item B(9):
	
  _______________

	 	 	 	 	 
	 	
D.  Shall Not Be Greater Than:
	
3.00:1.00

	 	
E.  Compliance
	
Yes
	
No

	 	 	
(Waived During Waiver Period)










  
1 Please provide an itemization of indebtedness to be excluded.


  
2To 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 1998), noncash adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.









	
3.  Minimum Consolidated Interest Charges Coverage Ratio (Section 18(b) of Amendment No. 1) for the ____ fiscal quarters ending ____________________ .

	 	 	 	 	 
	 	
A.  Consolidated EBITDA of Holdings and its Subsidiaries (please see Item 2(B)(9) above):
	
$_______________

	 	 	 	 
	 	
B.  Federal, state, local and foreign Income taxes:
	
$_______________

	 	 	 	 	 
	 	
C.  Item A minus and Item B above:
	
$_______________

	 	 	 
	 	
D.  Consolidated Interest Charges1 for the most recently completed Measure Period2:
	
$_______________

	 	 	 
	 	
I.  Ratio of Item C to Item D above:
	
_______________

	 	 	 
	 	 
	
 
	
 




	
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






 



 







 



     

K.  Compliance:    Yes   No








  
1 Please provide an itemization of interest expenses to be excluded relating to Permitted New Vessel Construction Indebtedness.


  
2To 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 1998), noncash adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.









	
4.  Net Present Rental Value (Section 7.19 of the Credit Agreement) for the fiscal quarter ending ____________________.

	 	 	 	 
	 	
A.  Aggregated net present value of Rentals payable by Holdings or any of its Subsidiaries to any Person (other than Holdings or any of its other Subsidiaries) pursuant to any Operating Lease discounted to ______________ [insert fiscal quarter ending] at a rate of 8.00% per annum:
	 	
 

 

 

$_______________

	 	 	 	 
	 	
B.  Without duplication of Item (A), Net present value of any charter of any vessel that, after giving effect to any renewals or other extensions provided therein and in the absence of any early termination, shall or would have a fixed remaining term of (a) prior to the Pre-Waiver Covenant Compliance Date, eighteen months or more
and (b) commencing with the Pre-Waiver Covenant Compliance Date, twenty-three months or more, discounted to ____________ [insert fiscal quarter ending] at a rate of 8.00% per annum:
	 	
 

 

 

 

$_______________

	 	 	 	 
	 	
C.  Sum of Item (A) and Item (B) above:
	 	
$_______________

	 	 	 	 
	 	
D.  Shall Not Be Greater Than:
	 	
$ [45,000,000]3

[60,000,000]

	 	 	 	 
	 	
E.  Compliance:
	
Yes
	
No

	 	 	 	 
	 	 	 
	 	 	 
	 	
BANK USE ONLY

	 	
Received by:
	
________________________

	 	
Date:
	
________________________

	 	
Reviewed by:
	
________________________

	 	
Date:
	 
	 	
Financial Compliance Status:      YES/NO

	 	 	 
	 	 	 
	 	
Date:                                           
	 
	 	 	 







 


	
5.  Minimum Consolidated Tangible Net Worth (Section 7.13 (a) of the Credit Agreement) for the fiscal quarter ending ____________________ . (Waived During Waiver Period)

	 	 	 	 	 
	 	 
	 	
A.  Consolidated Tangible Net Worth:

	 	 	 	 	 
	 	 	
1.  Shareholders’ Equity of Holdings and its Subsidiaries:
	 	
$_______________

	 	 	 	 	 
	 	 	
2.  Intangible Assets of Holdings and its Subsidiaries:
	 	
$_______________

	 	 	 	 	 
	 	 	
3.  Total (Items 1 less 2)
	 	
$_______________

	 	 	 
	 	
B. $235,000,000:
	
$_______________

	 	 	 
	 	
C.  Consolidated Net Income earned in each full fiscal quarter ending after September 30, 2007 (with no deduction for a net loss in any such fiscal quarter):
	
$_______________

	 	 	 	 
	 	
D.  Aggregate increases in Shareholders’ Equity of Holdings and its Subsidiaries after the Closing Date by reason of the issuance and sale of Equity Interests of Holdings or any Subsidiary after September 30, 2007 (other than issuances to Holdings or a wholly-owned Subsidiary), including upon any conversion of debt securities
of Holdings into such Equity Interests:
	
 

 

$_______________

	 	 	 	 	 
	 	
E.  75% of Item C above:
	
$_______________

	 	 	 	 	 
	 	
F.  Sum Item B plus Item D plus Item E above:
	
$_______________

	 	
Item A shall not be less than Item F
	 
	 	 	 
	 	
F.  Compliance
	
Yes
	
No

	 	 	
(Waived During Waiver Period)










  
3 $45,000,000 if the Pre-Waiver Covenant Compliance Date has not occurred, or $60,000,000 if the Pre-Waiver Covenant Compliance Date has occurred.











	
6.  Minimum Cash Liquidity (Section 7.13 (b) of the Credit Agreement) for the calendar month ending ____________________ . (Waived During Waiver Period)

	 	 	 	 	 
	 	
A.  Qualified Cash: (the amount of cash and Cash Equivalents which is freely transferable and not subject to a Lien (other than the Lien in favor of the Administrative Agent), pledge, security interest, encumbrance, escrow or cash collateral arrangement or any other restriction
on its use):
	
 

$_______________

	 	 	 	 	 
	 	
B.  Availability
	 
	 	 	 	 	 
	 	 	
1.  Loan Value:
	 	
$_______________

	 	 	 	 	 
	 	 	
2.  Total Outstandings:
	 	
$_______________

	 	 	 	 	 
	 	 	
3.  Revolving Credit Facility:
	 	
$_______________

	 	 	 	 	 
	 	 	
4.  Total Revolving Credit Outstandings:
	 	
$_______________

	 	 	 	 	 
	 	 	
5.  Item (B)1 minus Item (B)2 above:
	 	
$_______________

	 	 	 	 	 
	 	 	
6.  Item B(3) minus Item B(4) above:
	 	
$_______________

	 	 	 	 	 
	 	 	
7.  The Lesser of Item B(5) and Item B(6) above:
	
$_______________

	 	 	 	 	 
	 	
C.  Sum of Item A and B(7) above:
	
$_______________

	 	 	 	 	 
	 	
D.  Item C Above Shall Not Be Less Than:
	
$15,000,000

	 	 	 	 	 
	 	
E.  Compliance
	
Yes
	
No

	 	 	 	
(Waived During Waiver Period)











	
7.  Minimum Consolidated Fixed Charge Coverage Ratio (Section 7.13 (d) of the Credit Agreement) for the fiscal quarter ending ____________________ . (Waived During Waiver Period)

	 	 	 	 	 
	 	
A.  Consolidated EBITDA of Holdings and its Subsidiaries (please see Item 2(B)(9) above):
	
$_______________

	 	 	 	 
	 	
B.  Federal, state, local and foreign Income taxes:
	
$_______________

	 	 	 	 	 
	 	
C.  Restricted Payments made, in each case, for the most recently completed Measurement Period:
	
$_______________

	 	 	 
	 	
D.  Sum of Item B and Item C above:
	
$_______________

	 	 	 
	 	
E.  Consolidated Interest Charges1 for the most recently completed Measure Period2:
	
$_______________

	 	 	 
	 	
F.  The aggregate principal amount of all regularly scheduled principal payments or redemptions or similar acquisitions for value of outstanding debt for borrowed money for the period of 12 consecutive months, but excluding any principal payments to be made in respect of the Revolving Credit Facility:
	
 

$_______________

	 	 	 
	 	
H.  Sum of Item E and Item F above:
	
$_______________

	 	 	 
	 	
G.  Item A minus Item D above:
	
$_______________

	 	 	 
	 	
I.  Ratio of Item G to Item H above:
	
_______________

	 	 	 
	 	
J.  Shall Not Be Less Than:
	
1.50:1.00

	 	 	 
	 	
K.  Compliance:
	
Yes
	
No

	 	 	
(Waived During Waiver Period)










  
1 Please provide an itemization of interest expenses to be excluded relating to Permitted New Vessel Construction Indebtedness.


  
2To 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 1998), noncash adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.


 

 



 



 







 









Schedule 2 below to be used following the Waiver Period]











For the Quarter/Year/Month ended ___________________, ____ (“Statement Date”)

 

SCHEDULE 2

 

to the Compliance Certificate

 





 


	
1.  Minimum Consolidated Tangible Net Worth (Section 7.13 (a) of the Credit Agreement) for the fiscal quarter ending ____________________ .

	 	 	 	 	 
	 	 
	 	
A.  Consolidated Tangible Net Worth:

	 	 	 	 	 
	 	 	
1.  Shareholders’ Equity of Holdings and its Subsidiaries:
	 	
$_______________

	 	 	 	 	 
	 	 	
2.  Intangible Assets of Holdings and its Subsidiaries:
	 	
$_______________

	 	 	 	 	 
	 	 	
3.  Total (Items 1 less 2)
	 	
$_______________

	 	 	 
	 	
B. $235,000,000:
	
$_______________

	 	 	 
	 	
C.  Consolidated Net Income earned in each full fiscal quarter ending after September 30, 2007 (with no deduction for a net loss in any such fiscal quarter):
	
 

$_______________

	 	 	 	 
	 	
D.  Aggregate increases in Shareholders’ Equity of Holdings and its Subsidiaries after the Closing Date by reason of the issuance and sale of Equity Interests of Holdings or any Subsidiary after September 30, 2007 (other than issuances to Holdings or a wholly-owned Subsidiary), including upon any conversion of debt securities
of Holdings into such Equity Interests:
	
 

 

$_______________

	 	 	 	 	 
	 	
E.  75% of Item C above:
	
$_______________

	 	 	 	 	 
	 	
F.  Sum Item B plus Item D plus Item E above:
	
$_______________

	 	
 

Item A shall not be less than Item F
	 
	 	 	 
	 	
F.  Compliance
	
Yes
	
No











	
2.  Minimum Cash Liquidity (Section 7.13 (b) of the Credit Agreement) for the calendar month ending ____________________ .

	 	 	 	 	 
	 	
A.  Qualified Cash: (the amount of cash and Cash Equivalents which is freely transferable and not subject to a Lien (other than the Lien in favor of the Administrative Agent), pledge, security interest, encumbrance, escrow or cash collateral arrangement or any other restriction
on its use):
	
 

$_______________

	 	 	 	 	 
	 	
B.  Availability
	 
	 	 	 	 	 
	 	 	
1.  Loan Value:
	 	
$_______________

	 	 	 	 	 
	 	 	
2.  Total Outstandings:
	 	
$_______________

	 	 	 	 	 
	 	 	
3.  Revolving Credit Facility:
	 	
$_______________

	 	 	 	 	 
	 	 	
4.  Total Revolving Credit Outstandings:
	 	
$_______________

	 	 	 	 	 
	 	 	
5.  Item (B)1 minus Item (B)2 above:
	 	
$_______________

	 	 	 	 	 
	 	 	
6.  Item B(3) minus Item B(4) above:
	 	
$_______________

	 	 	 	 	 
	 	 	
7.  The Lesser of Item B(5) and Item B(6) above:
	
$_______________

	 	 	 	 	 
	 	
C.  Sum of Item A and B(7) above:
	
$_______________

	 	 	 	 	 
	 	
D.  Item C Above Shall Not Be Less Than:
	
$15,000,000

	 	 	 	 	 
	 	
E.  Compliance
	
Yes
	
No











	
3.  Maximum Consolidated Leverage Ratio (Section 7.13 (c) of the Credit Agreement) for the four fiscal quarters ending ____________________ .

	 	 	 	 	 
	 	
A.  Consolidated Funded Indebtedness of Holdings and its Subsidiaries (for the purpose of calculating Consolidated Leverage Ratio, Consolidated Funded Indebtedness shall not include Permitted New Vessel Construction Indebtedness in an amount up to $150,000,0001 in
the aggregate used to finance new build multipurpose tweendeck bulk carrier shipping vessels so long as such vessel remains in the construction phase):
	 
	 	 	 	 	 
	 	 	
1.  The outstanding principal amount of all obligations, whether current or long-term, for borrowed money (included Obligations under the Agreement), and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments:
	
 

 

$_______________

	 	 	 	 
	 	 	
2.  plus, all purchase money Indebtedness:
	
$_______________

	 	 	 	 
	 	 	
3.  plus, all direct obligations arising under letter of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments:
	
 

$_______________

	 	 	 	 
	 	 	
4.  plus, all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business):
	
 

$_______________

	 	 	 	 
	 	 	
5.  plus, Attributable Indebtedness:
	
$_______________

	 	 	 	 
	 	 	
6.  plus, without duplication, all Guarantees with respect to outstanding indebtedness of the types specified in Item A(1) through Item A(5) above of Persons other than the Borrowers or any Subsidiary:
	
 

$_______________

	 	 	 	 
	 	 	
7.  plus, all Indebtedness of the types referred to in Item A(1) though Item A(6) of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which a Borrower or a Subsidiary is a general partner or a joint venture, unless such Indebtedness is expressly made non-recourse
to such Borrower or such Subsidiary:
	
 

 

$_______________

	 	 	 	 
	 	 	
8.  Total (Items A(1) through A(7) above):
	
$_______________

	 	 	 
	 	
B.  Consolidated EBITDA of Holdings and its Subsidiaries for the Measurement Period:
	 
	 	 	 	 
	 	 	
1.  Consolidated Net Income of Holdings and its Subsidiaries:
	
$_______________

	 	 	 	 
	 	 	
To the extent deducted in calculating Consolidated Net Income (and without duplication):
	 
	 	 	 	 
	 	 	
2.  plus, Consolidated Interest Charges:
	
$_______________

	 	 	 	 
	 	 	
3.  plus, the provision for Federal, state, local and foreign income taxes payable:
	
$_______________

	 	 	 	 
	 	 	
4.  plus, depreciation and amortization expense:
	
$_______________

	 	 	 	 
	 	 	
5.  plus, net losses from the sales of vessels as permitted under the Agreement (in each case of or by Holdings and its Subsidiaries for such Measurement Period):
	
 

$_______________

	 	 	 	 
	 	 	
6.  plus, any noncash impairment charges in the aggregate, incurred during the fiscal year of Holdings and its Subsidiaries ending December 31, 2009 in respect of any of Holdings and its Subsidiaries goodwill and Vessels
	 
	 	 	 	 
	 	 	
7.  Total Items B(1) through B(6) above:
	
$_______________

	 	 	 	 
	 	 	
8.minus, the following to the extent included in calculating such Consolidated Net Income, all net gains from the sale of vessels as permitted under this Agreement (in each case of or by Holdings and its Subsidiaries for such Measurement Period):
	
 

 

$_______________

	 	 	 	 
	 	 	
9. Total Item B(7) less Item B(8) above2:
	
$_______________

	 	 	 	 
	 	
C.  The Ratio of Item A(8) to Item B(9):
	
  _______________

	 	 	 	 	 
	 	
D.  Shall Not Be Greater Than:
	
3.00:1.00

	 	
E.  Compliance
	
Yes
	
No










  
1 Please provide an itemization of indebtedness to be excluded.


  
2To 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 1998), noncash adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.






 


	
4.  Minimum Consolidated Fixed Charge Coverage Ratio (Section 7.13 (d) of the Credit Agreement) for the fiscal quarter ending ____________________ .

	 	 	 	 	 
	 	
A.  Consolidated EBITDA of Holdings and its Subsidiaries (please see Item 3(B)(9) above):
	
$_______________

	 	 	 	 
	 	
B.  Federal, state, local and foreign Income taxes:
	
$_______________

	 	 	 	 	 
	 	
C.  Restricted Payments made, in each case, for the most recently completed Measurement Period:
	
$_______________

	 	 	 
	 	
D.  Sum of Item B and Item C above:
	
$_______________

	 	 	 
	 	
E.  Consolidated Interest Charges3 for the most recently completed Measure Period4:
	
$_______________

	 	 	 
	 	
F.  The aggregate principal amount of all regularly scheduled principal payments or redemptions or similar acquisitions for value of outstanding debt for borrowed money for the period of 12 consecutive months, but excluding any principal payments to be made in respect of the Revolving Credit Facility:
	
 

$_______________

	 	 	 
	 	
H.  Sum of Item E and Item F above:
	
$_______________

	 	 	 
	 	
G.  Item A minus Item D above:
	
$_______________

	 	 	 
	 	
I.  Ratio of Item G to Item H above:
	
_______________

	 	 	 
	 	
J.  Shall Not Be Less Than:
	
1.50:1.00

	 	 	 
	 	
K.  Compliance:
	
Yes
	
No










  
3 Please provide an itemization of interest expenses to be excluded relating to Permitted New Vessel Construction Indebtedness.


  
4To 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 1998), noncash adjustments in connection with any interest rate Swap Contract entered into by Holdings or any of its Subsidiaries shall be excluded.









	
5.  Net Present Rental Value (Section 7.19 of the Credit Agreement) for the fiscal quarter ending ____________________.

	 	 	 	 
	 	
A.  Aggregated net present value of Rentals payable by Holdings or any of its Subsidiaries to any Person (other than Holdings or any of its other Subsidiaries) pursuant to any Operating Lease discounted to ______________ [insert fiscal quarter ending] at a rate of 8.00% per annum: 
	
 

 

$_______________

	 	 	 	 
	 	
B.  Without duplication of Item (A), Net present value of any charter of any vessel that, after giving effect to any renewals or other extensions provided therein and in the absence of any early termination, shall or would have a fixed remaining term of (a) prior to the Pre-Waiver Covenant Compliance Date, eighteen months or more
and (b) commencing with the Pre-Waiver Covenant Compliance Date, twenty-three months or more, discounted to ____________ [insert fiscal quarter ending] at a rate of 8.00% per annum: 
	
 

 

 

$_______________

	 	 	 	 
	 	
C.  Sum of Item (A) and Item (B) above:
	 	
$_______________

	 	 	 	 
	 	
D.  Shall Not Be Greater Than:
	 	
$ [45,000,000]5

[60,000,000]

	 	 	 	 
	 	
E.  Compliance:
	
Yes
	
No

	 	 	 	 
	 	 	 
	 	 	 
	 	
BANK USE ONLY

	 	
Received by:
	
________________________

	 	
Date:
	
________________________

	 	
Reviewed by:
	
________________________

	 	
Date:
	 
	 	
Financial Compliance Status:      YES/NO

	 	 	 
	 	 	 









  
5 $45,000,000 if the Pre-Waiver Covenant Compliance Date has not occurred, or $60,000,000 if the Pre-Waiver Covenant Compliance Date has occurred.




 



 







 



 


EXHIBIT D-2

 

FORM OF SECTION 7.13(B) COMPLIANCE CERTIFICATE

 

Financial Statement Date:  ________, ____

 


	
To:
	
Bank of America, N.A., as Administrative Agent




 

Ladies and Gentlemen:

 

Reference is made to that certain Amended and Restated Credit Agreement, dated as of March 26, 2008 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as
therein defined), among Albemarle Maritime Corp., Arden Maritime Corp., Avon Maritime Corp., Birnam Maritime Corp., Bristol Maritime Corp., Chester Shipping Corp., Cumberland Navigation Corp., Darby Navigation Corp., Dover Maritime Corp., Elrod Shipping Corp., Exeter Shipping Corp. Frankfort Maritime Corp., Glenwood Maritime Corp., Hansen Shipping Corp., Hartley Maritime Corp., Henley Maritime Corp., Hudson Maritime Corp., Jessup Maritime Corp., Montrose Maritime Corp., Oldcastle Shipping Corp., Quentin Maritime
Corp., Rector Shipping Corp., Remsen Navigation Corp., Sheffield Maritime Corp., Sherman Maritime Corp., Sterling Shipping Corp., Stratford Shipping Corp., Vedado Maritime Corp., Vernon Maritime Corp., Windsor Maritime Corp., each a Republic of the Marshall Islands corporation (collectively, the “Borrowers”, and, each individually, a “Borrower”), TBS International
Limited, a Bermuda corporation (“Holdings”), TBS Shipping Services Inc. as Administrative Borrower, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager.

 

The undersigned Responsible Officer of Holdings hereby certifies as of the date hereof that he/she is the ___________________________________ of Holdings, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of Holdings and Its Subsidiaries, and that:

 

The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of Holdings and each Subsidiary during the accounting period covered by the attached financial statements.

 

A review of the activities of Holdings and each Subsidiary during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period Holdings and each Subsidiary performed and observed all its Obligations under the Loan Documents, and

 

[select one:]

 

[to the best knowledge of the undersigned during such fiscal period, each Loan Party performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]

 

--or--

 

[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]

 

1.           The representations and warranties of each Borrower and Holdings contained in Article V of the Agreement and all representations and warranties of any Loan Party that are contained in any document furnished
at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date.

 

2.           The financial covenant analysis and information set forth on Schedule 1 attached hereto is true and accurate on and as of the date of this Certificate.





  



  







  





 

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of _______________, __________.

 

TBS INTERNATIONAL LIMITED

 

By:                                                                        

Name:

Title:





  



  







  





[Schedule 1 below to be used during the Waiver Period]





  



  







  





For the Month ended ___________________, ____ (“Statement Date”)

 

SCHEDULE 1

 

to the Section 7.13(b)Compliance Certificate

 


	
1.  Minimum Cash Liquidity (Section 18(a) of Amendment No. 1) for the calendar month ending ____________________ .

	
A.  Qualified Cash: (the amount of cash and Cash Equivalents which is freely transferable and not subject to a Lien (other than the Lien in favor of the Administrative Agent), pledge, security interest, encumbrance, escrow or cash collateral arrangement or any other restriction
on its use):
	
$                            

	
D.  Item A Above Shall Not Be Less Than:
	
$40,000,000

	
E.  Compliance
	
Yes
	
No








  



  







  





Schedule 2 below to be used following the Waiver Period]





  



  







  






	
2.  Minimum Cash Liquidity (Section 7.13 (b) of the Credit Agreement) for the calendar month ending ____________________ .

	
A.  Qualified Cash: (the amount of cash and Cash Equivalents which is freely transferable and not subject to a Lien (other than the Lien in favor of the Administrative Agent), pledge, security interest, encumbrance, escrow or cash collateral arrangement or any other restriction
on its use):
	
$                            

	
B.  Availability
	  
	
1.  Loan Value:
	
$                            

	
2.  Total Outstandings:
	
$                            

	
3.  Revolving Credit Facility:
	
$                            

	
4.  Total Revolving Credit Outstandings:
	
$                            

	
5.  Item (B)1 minus Item (B)2 above:
	
$                            

	
6.  Item B(3) minus Item B(4) above:
	
$                            

	
7.  The Lesser of Item B(5) and Item B(6) above:
	
$                            

	
C.  Sum of Item A and B(7) above:
	
$                            

	
D.  Item C Above Shall Not Be Less Than:
	
$15,000,000

	
E.  Compliance
	
Yes
	
No