ex_10-5.htm


    TBS
INTERNATIONAL PLC & SUBSIDIARIES                 EXHIBIT
10.4

     

     

    



    


    


    AS AMENDED


    


    


    Date
   7 May 2010

    


    


    


    


    


    ARGYLE
MARITIME CORP.

    CATON
MARITIME CORP.

    DORCHESTER
MARITIME CORP.

    LONGWOODS
MARITIME CORP.

    McHENRY
MARITIME CORP.

    SUNSWYCK
MARITIME CORP.

    as Joint
and Several Obligors

     

    – and
–

     

    THE
ROYAL BANK OF SCOTLAND PLC

    as
Issuer

    


    


    


    


    


    


    


    


    


                                                                                                                 

     

    AMENDING
AND RESTATING AGREEMENT

                                                                                                                 

    


    relating
to

    a
guarantee facility of up to US$84,000,000

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      



      INDEX

       
 


      


        
          	Clause	 	 	 	Page	 
	1	 	
                  INTERPRETATION

                	 	1	 
	2	 	
                  AGREEMENT
      OF ALL PARTIES TO THE AMENDMENT OF THE FACILITY AGREEMENT AND EXISITING
      FINANCE DOCUMENTS

                	 	2	 
	3	 	
                  CONDITIONS
      PRECEDENT

                	 	2	 
	4	 	
                  REPRESENTATIONS
      AND WARRANTIES

                	 	2	 
	5	 	
                  AMENDMENT
      OF FACILITY AGREEMENT AND EXISTING FINANCE DOCUMENTS

                	 	3	 
	6	 	
                  FURTHER
      ASSURANCES

                	 	3	 
	7	 	
                  NOTICES

                	 	4	 
	8	 	
                  SUPPLEMENTAL

                	 	4	 
	9	 	
                  LAW
      AND JURISDICTION

                	 	4	 
	
                  EXECUTION
      PAGES

                	 	5	 
	
                  APPENDIX
      1

                	 	
                  FORM
      OF AMENDMENT AND RESTATED FACILITY AGREEMENT MARKED TO INDICATE AMENDMENTS
      TO THE LOAN AGREEMENT

                	 	7	 
	
                  APPEDIX
      2

                	 	
                  FORM
      OF CORPORATE GUARANTEE SUPPLEMENTS

                	 	8	 


        





      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

     

    THIS AGREEMENT is made on
       7
May    2010

     

    BETWEEN

     

    
      	
              (1)  

            	
              ARGYLE MARITIME CORP.,
      CATON MARITIME
      CORP., DORCHESTER
      MARITIME CORP., LONGWOODS MARITIME
      CORP., McHENRY
      MARITIME CORP. and SUNSWYCK MARITIME CORP.,
      each a corporation organised and existing under the laws of the Marshall
      Islands and having its registered office at Trust Company Complex,
      Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 as joint
      and several obligors (the “Obligors”);
      and

            


    

     

    
      	
              (2)  

            	
              THE ROYAL BANK OF SCOTLAND
      PLC, a company incorporated in Scotland having its registered
      office at 36 St. Andrew Square, Edinburgh EH2 2YB, Scotland acting through
      the Shipping Business Centre at 5-10 Great Tower Street, London EC3P 3HX,
      England as issuer (the “Issuer”).

            


    

     

     

    BACKGROUND

     

    
      	
              (A)  

            	
              By
      a facility agreement dated 29 March 2007 as amended by a supplemental
      agreement dated 27 March 2009, a side letter dated 31 December 2009 and a
      supplemental agreement dated 7 January 2010 (the “Facility Agreement”) each made
      between (inter alia) (i) the Obligors as joint and several obligors, (ii)
      the Issuer, it was agreed that the Issuer would make available to the
      Obligors a facility in an amount of up to Eighty four million United
      States Dollars (US$84,000,000).

            


    

     

    
      	
              (B)  

            	
              Subject
      to the terms and conditions of this Agreement the Issuer has agreed with
      the Obligors:

            


    

     

    
      	
              (i)  

            	
              to
      amend certain covenants in the Facility Agreement on the terms and
      conditions set out herein; and

            


    

     

    
      	
              (ii)  

            	
              that
      the Obligors will pay additional
fees.

            


    

     

     

    IT IS AGREED as
follows:

     

    
      	
              1  

            	
              INTERPRETATION

            


    

     

    
      	
              1.1  

            	
              Defined
      expressions.  Words and expressions defined in the
      Facility Agreement shall have the same meanings when used in this
      Agreement unless the context otherwise
requires.

            


    

     

    
      	
              1.2  

            	
              Definitions.  In
      this Agreement, unless the contrary intention
  appears:

            


    

     

    “Additional Fee
Letter”  means any letter or letters dated on or about the date
of this Agreement between the Obligors and the Issuer in respect of any
additional fees;

     

    “Amended and Restated Facility
Agreement”  means the Facility Agreement as amended and
restated by this Agreement in the form set out in Appendix 1;

     

    “Corporate Guarantee
Supplements”  means letters supplemental to each of the
Corporate Guarantee and the New Corporate Guarantee executed or to be executed
by the Corporate Guarantor and the New Corporate Guarantor for respectively in
favour of the Security Trustee substantially in the forms set out in Appendix
2;

     

    “Effective
Date”  means the date on which the Issuer notifies the Obligors
that the conditions precedent in Clause 3 have been
fulfilled;

     

    “Existing Finance
Documents”  means the Finance Documents which have been
executed prior to the date hereof; and

     

    “Facility Agreement”  means
the facility agreement dated 29 March 2007 as amended and supplemented from time
to time and as first referred to in Recital (A).

     

    
      	
              1.3  

            	
              Application of construction and
      interpretation provisions of Facility Agreement.  Clauses
      1.2, 1.5 and 1.6 of the Facility Agreement apply, with any necessary
      modifications, to this Agreement.

            


    

     

    
      	
              2  

            	
              AGREEMENT
      OF ALL PARTIES TO THE AMENDMENT OF THE FACILITY AGREEMENT AND EXISTING
      FINANCE DOCUMENTS

            


    

     

    
      	
              2.1  

            	
              Agreement of the parties to
      this Agreement.  The parties to this Agreement agree,
      subject to and upon the terms and conditions of this Agreement to the
      amendment of the Facility Agreement and the Existing Finance Documents to
      be made pursuant to Clauses 5.1, 5.2 and
5.3.

            


    

     

    
      	
              2.2  

            	
              Effective Date. The
      agreement of the parties to this Agreement contained in Clause 2.1 shall have effect on and from the Effective
      Date.

            


    

     

    
      	
              3  

            	
              CONDITIONS
      PRECEDENT

            


    

     

    
      	
              3.1  

            	
              General.  The
      agreement of the parties to this Agreement contained in Clause 2.1 is subject to the fulfilment of the
      conditions precedent in Clause 3.2.

            


    

     

    
      	
              3.2  

            	
              Conditions
      precedent.  The conditions referred to in Clause 2.1 are that the Issuer shall have received the
      following documents and evidence in all respects in form and substance
      satisfactory to it and its lawyers on or before 14 May 2010 or such later
      date as the Issuer may agree with the
Obligors:

            


    

     

    
      	
              (a)  

            	
              in
      relation to the Obligors, the New Corporate Guarantor and the Corporate
      Guarantor, documents of the kind specified in paragraphs 2, 3, 4 and 5 of
      Part A of Schedule 2 of the Facility Agreement with appropriate
      modifications to refer to this Agreement, the Additional Fee Letter and
      the Corporate Guarantee Supplements insofar as each is a party
      thereto;

            


    

     

    
      	
              (b)  

            	
              a
      duly executed original of this Agreement duly executed by the parties to
      it;

            


    

     

    
      	
              (c)  

            	
              a
      duly executed original of the Additional Fee
  Letter;

            


    

     

    
      	
              (d)  

            	
              a
      duly executed original of the Corporate Guarantee
    Supplements;

            


    

     

    
      	
              (e)  

            	
              evidence
      that the Issuer has received the fee payable to it pursuant to the
      Additional Fee Letter;

            


    

     

    
      	
              (f)  

            	
              documentary
      evidence that the agent for service of process named in Clause 25 of the
      Facility Agreement has accepted its appointment in respect of this
      Agreement; and

            


    

     

    
      	
              (g)  

            	
              any
      further opinions, consents, agreements and documents in connection with
      this Agreement, the Additional Fee Letter and the Corporate Guarantee
      Supplements and the Finance Documents which the Agent may reasonably
      request by notice to the Obligors prior to the Effective
    Date.

            


    

     

    
      	
              4  

            	
              REPRESENTATIONS
      AND WARRANTIES

            


    

     

    
      	
              4.1  

            	
              Repetition of Facility
      Agreement representations and warranties.  The Obligors
      represent and warrant to the Issuer that the representations and
      warranties in clause 8 of the Facility Agreement, as amended and restated
      by this Agreement and updated with appropriate modifications to refer to
      this Agreement, remain true and not misleading if repeated on the date of
      this Agreement with reference to the circumstances now
      existing.

            


    

     

    
      	
              4.2  

            	
              Repetition of representations
      and warranties under Existing Finance Documents.  The
      Obligors represent and warrant to the Issuer that the representations and
      warranties in the Existing Finance Documents to which they are a party, as
      amended and restated by this Agreement and updated with appropriate
      modifications to refer to this Agreement remain true and not misleading if
      repeated on the date of this Agreement with reference to the circumstances
      now existing.

            


    

     

    
      	
              5  

            	
              AMENDMENT
      OF FACILITY AGREEMENT AND EXISTING FINANCE
  DOCUMENTS

            


    

     

    
      	
              5.1  

            	
              Amendments
      to Facility Agreement

            


    

     

    
      	
              (a)  

            	
              With
      effect on and from the Effective Date the Facility Agreement shall be, and
      shall be deemed by this Agreement to be, amended and restated in the form
      of the Amended and Restated Facility
Agreement.

            


    

     

    
      	
              (b)  

            	
              As
      so amended and restated pursuant to (a) above, the Facility Agreement
      shall continue to be binding on each of the parties to it in accordance
      with its terms.

            


    

     

    
      	
              5.2  

            	
              Amendments to Existing Finance
      Documents.  With effect on and from the Effective Date
      each of the Existing Finance Documents shall be, and shall be deemed by
      this Agreement to be, amended as
follows:

            


    

     

    
      	
              (a)  

            	
              the
      definition of, and references throughout each of the Existing Finance
      Documents to, the Facility Agreement and any of the Existing Finance
      Documents shall be construed as if the same referred to the Facility
      Agreement and those Existing Finance Documents as amended and restated or
      supplemented by this Agreement;

            


    

     

    
      	
              (b)  

            	
              by
      construing references throughout each of the Existing Finance Documents to
      “the Finance Documents” and other like expressions as if the same included
      the Additional Fee Letter and the Corporate Guarantee Supplements;
      and

            


    

     

    
      	
              (c)  

            	
              by
      construing references throughout each of the Existing Finance Documents to
      “this Agreement”, “this Deed”, “hereunder” and other
      like expressions as if the same referred to such Existing Finance
      Documents as amended and supplemented by this
  Agreement.

            


    

     

    
      	
              5.3  

            	
              The Existing Finance Documents
      to remain in full force and effect.  The Existing Finance
      Documents shall remain in full force and effect, as amended
      by:

            


    

     

    
      	
              (a)  

            	
              the
      amendments contained or referred to in Clause 5.1 and 5.2; and

            


    

     

    
      	
              (b)  

            	
              such
      further or consequential modifications as may be necessary to give full
      effect to the terms of this
Agreement.

            


    

     

    
      	
              6  

            	
              FURTHER
      ASSURANCES

            


    

     

    
      	
              6.1  

            	
              Obligors’ obligations to
      execute further documents etc.  The Obligors
      shall:

            


    

     

    
      	
              (a)  

            	
              execute
      and deliver to the Issuer (or as it may direct) any assignment, mortgage,
      power of attorney, proxy or other document, governed by the law of England
      or such other country as the Issuer may, in any particular case,
      specify;

            


    

     

    
      	
              (b)  

            	
              effect
      any registration or notarisation, give any notice or take any other
      step;

            


    

     

    which the
Issuer may, by notice to the Obligors, reasonably specify for any of the
purposes described in Clause 6.2 or for any similar
or related purpose.

     

    
      	
              6.2  

            	
              Purposes of further
      assurances.  Those purposes
  are:

            


    

     

    
      	
              (a)  

            	
              validly
      and effectively to create any Security Interest or right of any kind which
      the Issuer intended should be created by or pursuant to the Facility
      Agreement or any other Finance Document, each as amended and restated or
      supplemented by this Agreement; and

            


    

     

    
      	
              (b)  

            	
              implementing
      the terms and provisions of this
Agreement.

            


    

     

    
      	
              6.3  

            	
              Terms of further
      assurances.  The Issuer may specify the terms of any
      document to be executed by the Obligors under Clause 6.1, and those terms may include any covenants,
      powers and provisions which the Issuer considers appropriate to protect
      its interests.

            


    

     

    
      	
              7  

            	
              NOTICES

            


    

     

    
      	
              7.1  

            	
              General.  The
      provisions of clause 22 (Notices) of the
      Facility Agreement, as amended and restated by this Agreement, shall apply
      to this Agreement as if they were expressly incorporated in this Agreement
      with any necessary modifications.

            


    

     

    
      	
              8  

            	
              SUPPLEMENTAL

            


    

     

    
      	
              8.1  

            	
              Counterparts.  This
      Agreement may be executed in any number of
  counterparts.

            


    

     

    
      	
              8.2  

            	
              Third party
      rights.  No person who is not a party to this Agreement
      has any right under the Contracts (Rights of Third Parties) Act 1999 to
      enforce or to enjoy the benefit of any term of this
    Agreement.

            


    

     

    
      	
              9  

            	
              LAW
      AND JURISDICTION

            


    

     

    
      	
              9.1  

            	
              Governing
      law.  This Agreement and any non-contractual obligations
      arising out of or in connection with it shall be governed by and construed
      in accordance with English law.

            


    

     

    
      	
              9.2  

            	
              Incorporation of the Facility
      Agreement provisions.  The provisions of clause 25 (Law and jurisdiction) of
      the Facility Agreement, as amended and restated by this Agreement, shall
      apply to this Agreement as if they were expressly incorporated in this
      Agreement with any necessary
modifications.

            


    

     

    


    THIS AGREEMENT has been duly
executed as a deed on the date stated at the beginning of this
Agreement.

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


      
        	
                EXECUTION
      PAGES

              	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	
                OBLIGORS

              	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                         

              	
                )

              	 
	
                ARGYLE MARITIME
      CORP.                       

              	
                )

              	 
	
                acting
      by     Ellen Sofie
      Lokholm     

              	
                )

              	 /s/
      Ellen Sofie Lokholm
	 
      	
                )

              	 
	
                its
      duly authorid
      attorney-in-fact         

              	
                )

              	 
	
                in
      the presence of:      /s/ Keith Krut
                       

              	
                )

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                          

              	
                )

              	 
	
                CATON MARITIME
      CORP.                     

              	
                )

              	 
	
                acting
      by         Ellen Sofie
      Lokholm          

              	
                )

              	 /s/
      Ellen Sofie Lokholm
	 
      	
                )

              	 
	
                its
      duly authorised
      attorney-in-fact       

              	
                )

              	 
	
                in
      the presence
      of:           /s/
      Keith
      Krut                  

              	
                )

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                          

              	
                )

              	 
	
                DORCHESTER MARITIME
      CORP.    

              	
                )

              	 
	
                acting
      by              Ellen
      Sofie Lokholm     

              	
                )

              	 /s/
      Ellen Sofie Lokholm
	 
      	
                )

              	 
	
                its
      duly authorised
      attorney-in-fact       

              	
                )

              	 
	
                in
      the presence
      of:           /s/
      Keith
      Krut                  

              	
                )

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                         

              	
                )

              	 
	
                LONGWOODS MARITIME
      CORP.    

              	
                )

              	 
	
                acting
      by              Ellen
      Sofie Lokholm     

              	
                )

              	  /s/
      Ellen Sofie Lokholm
	 
      	
                )

              	 
	
                its
      duly authorised
      attorney-in-fact       

              	
                )

              	 
	
                in
      the presence of:        /s/ Keith
      Krut                     

              	
                )

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                         

              	
                )

              	 
	
                McHENRY MARITIME
      CORP.     

              	
                )

              	 
	
                acting
      by               Ellen
      Sofie Lokholm     

              	
                )

              	 /s/
      Ellen Sofie Lokholm
	 
      	
                )

              	 
	
                its
      duly authorised
      attorney-in-fact       

              	
                )

              	 
	
                in
      the presence of:      /s/ Keith
      Krut                       

              	
                )

              	 
	 
      	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                         

              	
                )

              	 
	
                SUNSWYCK MARITIME
      CORP.         

              	
                )

              	 
	
                acting
      by               Ellen
      Sofie Lokholm     

              	
                )

              	 /s/
      Ellen Sofie Lokholm
	 
      	
                )

              	 
	
                its
      duly authorised
      attorney-in-fact       

              	
                )

              	 
	
                in
      the presence
      of:           /s/
      Keith
      Krut                  

              	
                )

              	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	 
      	 
      	 
	
                ISSUER

              	 
      	 
	 
      	 
      	 
	
                EXECUTED and DELIVERED as a DEED            

              	
                )

              	 
	
                by                         

              	
                )

              	 
	
                THE ROYAL BANK OF SCOTLAND
      PLC    

              	
                )

              	 
	
                PLC     

              	
                )

              	 
	
                acting
      by      Andreas
      Georgion        

              	
                )

              	 /s/
      Andreas Georgion
	 
      	
                )

              	 
	
                its
      duly authorised
      attorney-in-fact       

              	
                )

              	 
	
                in
      the presence of:        /s/ Philip
      A. Cheesman   

              	 
      	 


      




    


     

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    


    


    APPENDIX
1

    


    FORM
OF AMENDED AND RESTATED FACILITY AGREEMENT MARKED TO INDICATE AMENDMENTS TO THE
FACILITY AGREEMENT

    


    


    


    Amendments
are indicated as follows:

     

    
      	
              1  

            	
              additions
      are indicated by underlined text;
and

            


    

     

    
      	
              2  

            	
              deletions
      are shown by the relevant text being struck
out.

            


    

     

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    


    APPENDIX
2

    


    FORM
OF CORPORATE GUARANTEE SUPPLEMENTS