ex_10-9.htm


    TBS
INTERNATIONAL PLC & SUBSIDIARIES                 EXHIBIT
10.9

     

     

    


       

      


      


      Date: as
of April 30, 2010

       

       

      ADIRONDACK
SHIPPING LLC

      as
Owner

       

       

      FAIRFAX
SHIPPING CORP.

      as
Charterer

       

       

      TBS
INTERNATIONAL LIMITED

      TBS
HOLDINGS LIMITED

      and

      TBS
INTERANTIONAL PUBLIC LIMITED COMPANY

      as
Guarantors

       

       

      _______________________________________________________

       

      FIFTH
AMENDATORY AGREEMENT

      ______________________________________________________

      


      Amending
and Supplementing the Bareboat Charter Party dated as of January 24, 2007, as
amended and supplemented by the First Amendatory Agreement thereto dated as of
March 26, 2009, the Second Amendatory Agreement thereto dated as of April 16,
2009, the Third Amendatory Agreement thereto dated as of December 31, 2009 and
the Fourth Amendatory Agreement thereto dated at of January 12, 2010 in respect
of the Panamanian registered and Philippine bareboat registered SEMINOLE
PRINCESS

      


      


       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
FIFTH
AMENDATORY AGREEMENT dated as of April 30, 2010 (this “Agreement”)

      


      AMONG

      


      
        	
                (1)  

              	
                ADIRONDACK
      SHIPPING LLC, a Marshall Islands limited liability company, as Owner (the
      “Owner”);

              


      

       

      
        	
                (2)  

              	
                FAIRFAX
      SHIPPING CORP., a Marshall Islands corporation, as bareboat Charterer (the
      “Charterer”);
      and

              


      

       

      
        	
                (3)  

              	
                TBS
      INTERNATIONAL LIMITED, TBS HOLDINGS LIMITED, each a company organized and
      existing under the law of Bermuda, and TBS INTERNATIONAL PUBLIC LIMITED
      COMPANY, a company organized and existing under the law of Ireland (“TBSPLC”), as guarantors
      (collectively, the “Guarantors”).

              


      

       

      WITNESSETH
THAT:

      


      WHEREAS, the Owner, the
Charterer and the Guarantors are parties to a bareboat charter party dated as of
January 24, 2007, as amended and supplemented by the First Amendatory Agreement
thereto dated as of March 26, 2009, the Second Amendatory Agreement thereto
dated as of April 16, 2009, the Third Amendatory Agreement thereto dated as of
December 31, 2009, and the Fourth Amendatory Agreement thereto dated as of
January 12, 2010 (as so amended and supplemented, the “Charter”).

      


      WHEREAS, upon the terms and
conditions stated herein, the parties hereto have agreed to amend certain
provisions of the Charter to increase the monthly Charter Hire payable by the
Charterer.

      


      NOW, THEREFORE, in
consideration of the premises set forth above, the covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:

      


      
        	
                1  

              	
                DEFINITIONS

              


      

      


      Defined
terms.  Capitalized terms used but not defined herein shall
have the meaning assigned such terms in the Charter.

      


      
        	
                2  

              	
                FEE;
      AMENDMENTS TO THE CHARTER

              


      

       

      
        	
                2.1  

              	
                Fee.  The Fee
      payable by the Charterer to the Owner in connection with the amendments
      set forth herein shall be $53,212.50 which fee shall be due on or before
      the date of this Agreement.

              


      

      


      
        	
                2.2  

              	
                Amendments.  The
      parties hereto agree to amend the Charter as follows with effect on and
      from the date hereof Clause 31(1) is amended and restated to read as
      follows:

              


      

      


      “(1)           The
Charterer shall pay to the Owner for the hire of the Vessel monthly Charter Hire
in United States currency, at the rates set forth below, commencing on and from
the Delivery Date.  Hire to continue until the date and hour when the
Vessel is redelivered by the Charterer:

      


      (a)           Months
1 –
24:                                           $10,500.00
per day Charter Hire

      


      (b)           Months
25 –
36:                                $10,000.00
per day Charter Hire

      


      (c)           Months
37 –
39:                                $8,041.01
per day Charter Hire

      


      (d)           Months
40 –
48                                $8,240
per day Charter Hire

      


      (e)           Months
49 –
60:                                $8,110
per day Charter Hire

      


      (f)           Months
61 –
72:                                $8,030
per day Charter Hire

      


      (g)           Months
73 –
84:                                $7,950
per day Charter Hire”

      


      
        	
                3  

              	
                MISCELLANEOUS

              


      

       

      
        	
                3.1  

              	
                References.  Each
      reference in the Charter to “this Charter”, “hereunder”, “hereof”,
      “herein” or words of like import shall mean and refer to the Charter as
      amended hereby.

              


      

      


      
        	
                3.2  

              	
                Effect of this
      Agreement.  Subject to the terms of this Agreement, with
      effect on and from the date hereof, the Charter shall be, and shall be
      deemed by this Agreement to have been, amended upon the terms and
      conditions stated herein and, as so amended, the Charter shall continue to
      be binding on each of the parties to it in accordance with its terms as so
      amended.

              


      

      


      
        	
                3.3  

              	
                No other
      amendments.  Except as amended hereby, all other terms
      and conditions of the Charter remain unchanged and the Charter is hereby
      ratified and confirmed.  Without limiting the foregoing, each
      Guarantor ratifies and confirms that its guarantee under Clause 53 of the
      Charter, as amended hereby.

              


      

      


      
        	
                3.4  

              	
                Governing
      Law.  This Agreement and the rights and obligations of
      the parties hereunder shall be governed by, and construed in accordance
      with, Clause 26.2 of the Charter.

              


      

      


      
        	
                3.5  

              	
                Counterparts.  This
      Agreement may be executed in any number of counterparts, all of which
      taken together shall constitute one and the same
    instrument.

              


      

      


      
        	
                3.6  

              	
                Severability.  Any
      provision of this Agreement that is prohibited or unenforceable in any
      jurisdiction shall, as to such jurisdiction, be ineffective to the extent
      of such prohibition or unenforceability without invalidating or affecting
      the validity or enforceability of such provision in any other
      jurisdiction.

              


      

      


      
        	
                3.7  

              	
                Payment of
      Expenses.  The parties hereto agree to pay or reimburse
      each of DVB Bank SE and DVB Bank America N.V. (collectively, the “Credit Parties”) for all
      reasonable expenses in connection with the preparation, execution and
      carrying out of this Agreement and any other document in connection
      herewith or therewith, including but not limited to, reasonable fees and
      expenses of any counsel whom the Credit Parties may deem necessary or
      appropriate to retain, any duties, registration fees and other charges and
      all other reasonable out-of-pocket expenses incurred by any of the Credit
      Parties in connection with the
foregoing.

              


      

      


      


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        WHEREFORE,
the parties hereto have caused this Fifth Amendatory Agreement to be executed as
of the date first above written.

        


        
          	
                  ADIRONDACK
      SHIPPING LLC, as Owner

                   

                   

                   

                  By:
      /s/ Asandro Van
      Aerde                          
       

                  Name:
      Asandro Van Aerde 

                  Title:
      Director

                   

                	
                  FAIRFAX
      SHIPPING CORP., as Charterer

                   

                   

                   

                  By:
      /s/ William J.
      Carr                                    
      

                  William J. Carr

                  President

                   

                
	
                  TBS
      INTERNATIONAL LIMITED, as Guarantor

                   

                   

                   

                  By:
      /s/ William J.
      Carr                                    
      

                  William J. Carr

                  President

                   

                	
                  TBS
      INTERNATIONAL PUBLIC LIMITED COMPANY, as Guarantor

                   

                   

                   

                  By:
      /s/ Ferdinand V.
      Lepere                        
       

                  Ferdinand V. Lepere

                  Executive
      Vice-President

                
	
                  TBS
      HOLDINGS LIMITED, as Guarantor

                   

                   

                   

                  By:
      /s/ William J.
      Carr                                    
      

                  William J. Carr

                  Vice-President

                	 
      


        

        


        


        


        CONSENT

        


        Pursuant
to Clause 10.2(k) of the Loan Agreement dated as of January 25, 2007, as
amended, among Adirondack Shipping LLC and Rushmore Shipping LLC as Borrowers,
the banks and financial institutions named therein as Lenders and DVB Bank
America N.V. as Facility Agent and Security Trustee, the Facility Agent, for and
on behalf of, and upon the instruction of, the Majority Lenders (as defined in
said Loan Agreement), hereby consents and agrees to the foregoing
Agreement.

        


        DVB BANK
AMERICA N.V.,

        as
Facility Agent for and on behalf of the Majority Lenders

        


        


        By: /s/ Jane Freeberg
Sarma                        


        Jane Freeberg Sarma

        Attorney-in-Fact