AMENDMENT AND SUPPLEMENT NO. 1 TO SENIOR SECURED CREDIT AGREEMENT
Exhibit
10.1
AMENDMENT
AND SUPPLEMENT NO. 1 TO
THIS
AMENDMENT AND SUPPLEMENT NO. 1 TO SENIOR SECURED CREDIT AGREEMENT (this
“Amendment”) is made as of September 21, 2007, by and among
(1) GENCO SHIPPING & TRADING LIMITED, a corporation organized and
existing under the laws of the Republic of ▇▇▇▇▇▇▇▇ Islands (the
“Borrower”), (2) the banks and financial institutions
acceptable to the Borrower and Mandated Lead Arranger (as defined below) as
are
signatories hereto, as lenders (the “Lenders”), and
(3) DnB NOR BANK ASA, acting through its New York branch
(“DnB”) as Administrative Agent (in such capacity, the
“Administrative Agent”), mandated lead arranger (in such
capacity, the “Mandated Lead Arranger”), as bookrunner (in such
capacity, the “Bookrunner”), as security trustee and as
collateral agent under the Security Documents (in such capacity, the
“Collateral Agent”) and amends and is supplemental to the
Senior Secured Credit Agreement dated as of July 20, 2007 (the
“Original Agreement”), made by and among the parties. All
capitalized terms used herein and defined in Section 11 are used herein as
therein defined.
W
I T
N E S S E T H:
WHEREAS,
pursuant to the Original Agreement, the Lenders made available to the Borrower
a
senior secured credit facility in the amount of US$1,377,000,000 (the
“Facility”);
WHEREAS,
the Borrower has requested that the Lenders permit the Borrower to transfer
the
Pledged Securities in Jinhui to Genco Investments LLC, a ▇▇▇▇▇▇▇▇ Islands
limited liability company (“Genco Investments”);
WHEREAS,
the Lenders have agreed to permit the Borrower to transfer the Pledged
Securities in Jinhui to Genco Investments provided the Borrower satisfies the
requirements of this Amendment, including but not limited to Genco Investments
(i) establishing a Deposit Account (as defined in Section 9 of this
Amendment), (ii) executing a Guaranty under the Original Agreement, as
supplemented hereby, and (iii) executing a Pledge and Security Agreement
over the Pledged Securities in Jinhui; and
WHEREAS,
the Lenders and the Borrower have agreed to certain other amendments to the
Original Agreement.
NOW,
THEREFORE, in consideration of the premises and such other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged by
the
parties, it is hereby agreed as follows:
1. Definitions. Unless
otherwise defined herein, words and expressions defined in the Original
Agreement have the same meanings when used herein, including in the recitals
hereto.
2. Representations
and Warranties. The Borrower hereby reaffirms, as of the date
hereof, each and every representation and warranty made thereby in the Original
Agreement, the Note and the Security Documents (updated mutatis mutandis).
In
addition, the Borrower represents and warrants that it is the owner of one
hundred percent (100%) of the ownership interest of Genco
Investments.
3. No
Defaults. The Borrower hereby represents and warrants that as of
the date hereof no Event of Default or event which, with the passage of time,
giving of notice or both would become an Event of Default, has
occurred.
4. Performance
of Covenants. The Borrower hereby reaffirms that it has duly
performed and observed the covenants and undertakings set forth in the Original
Agreement, the Note and the Security Documents, on its part to be performed,
and
the Borrower covenants and undertakes to continue duly to perform and observe
such covenants and undertakings so long as the Original Agreement, as the same
is amended hereby and may hereafter be amended or supplemented, shall remain
in
effect.
5. Amendment
to the Original Agreement. Subject to the terms and conditions of
this Amendment, the Original Agreement is hereby amended and supplemented as
follows:
(a) All
references to “this Agreement” shall be deemed to refer to the Original
Agreement, as further amended and supplemented hereby.
(b) The
first
paragraph on page one shall be revised to replace “11” with “13”.
(c) The
last
sentence of Section 4.02(b) shall be replaced in its entirety with the following
sentence:
“In
addition, in the event of a sale of any Pledged Securities in Jinhui by Genco
Investments, the Borrower shall ensure that within one Business Day after the
day the proceeds of each such sale are converted from Norwegian Kroner into
United States Dollars (and received by the Borrower or Genco Investments LLC
after termination of the relevant swap in relation thereto), prepay the
outstanding Loans in an aggregate amount up to Seventy Seven Million United
States Dollars (US$77,000,000), together with customary breakage costs, if
applicable. In addition, in the event of a sale of any
other Pledged Securities by Genco Investments, Genco Investments shall ensure
that the proceeds of the sale shall be used to prepay the outstanding Loans
(if
any), in an amount equal to the Loans made with respect to the acquisition
of
the Pledged Securities and at the time that shall be agreed between Genco
Investments and the Agent at the time of the acquisition of the Equity
Investment. Finally, in the event that the Borrower or Genco
Investments shall desire to exchange the Pledged Securities
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for
Vessels to be acquired from the issuer of such Pledged Securities, then the
Borrower or Genco Investments, as the case may be, shall be permitted to make
such exchange and such Vessels, valued in an aggregate amount equal to Seventy
Seven Million United States Dollars (US$77,000,000) in the case of Jinhui,
or
the amount the Loans made to acquire such Equity Investment, in connection
with
other Equity Investments, shall be subject to Section 8.02
hereof,”;
(d) The
text
of Section 4.03 shall be amended by (1) renaming the Section “Required
Repayments and Application of Net Cash Flow”, (2) replacing the
words “Commencing with” in the first line thereof with the words “For”, (3)
adding the following as a new second sentence: “In addition, commencing with the
quarter ending December 31, 2007, the Borrower shall repay Six ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars (US$6,250,000) on the last day
of
each quarter and prior to the declaration of any Dividend (the “Required
Repayments”).” and (4) amending the final sentence of the Section by adding the
words “Required Repayments or” before “required payments with respect to Net
Cash Flows”.
(e) Section
7.03 shall be revised to replace “the Borrower” in the ninth line of such
Section with “Genco Investments”.
(f) Section
10.01(i) shall be amended by deleting the word “Borrowing” from the second line
thereof.
(g) Section
11.02 shall be amended by adding the phrase “or Genco Investments” after
“Subsidiary Guarantor” in the introductory paragraph.
(h) Section
11.02(iv) shall be amended by adding a parenthentical “(A)” prior to the text on
the first line thereof and then adding the following new text as subparagraph
“(B)”:
“(B) Genco
Investments may sell all or any part of its assets provided that (x) all
proceeds from such Collateral Disposition have been applied to the repayment
of
the Loans to the extent required in Section 4.02 of this Agreement and (y)
if
all of the assets of Genco Investments shall have been sold, the Genco
Investments may dissolve provided that (i) all of the proceeds of such
dissolution shall be paid only to the Borrower and (ii) no Event of Default
is
continuing unremedied at the time of such dissolution; and”
(i) Section
11.02 shall be amended by adding the phrase “or Genco Investments” after
“Guarantor” in the second line of the first paragraph thereof.
(j) Section
11.04(a)(i) shall be amended by the addition of the phrase “or Genco
Investments” in the parenthetical expression in the first line
thereof.
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(k) Section
11.04(b) shall be amended by adding the phrase “nor Genco Investments” after
“Subsidiary Guarantor” in the second line thereof.
(l) Section
11.12 shall be amended by adding the phrase “or Genco Investments” after
“Subsidiary Guarantor” in each instance where “Subsidiary Guarantor” appears in
subparagraphs “(a)” and “(b)” thereof.
(m) Section
11.16 shall be amended by adding the phrase “or Genco Investments” after
“Subsidiary Guarantor” in the first line thereof.
(n) Section
12.08 shall be amended by adding the phrase “or Genco Investments” after
“Subsidiary Guarantor” at the end of the second and third line thereof and in
the sixth line thereof.
(o) The
definition of “Applicable Margin” in Section 13 shall be
amended to read as follows:
shall
mean 0.90% per annum until the fifth anniversary of the
Effective Date, and thereafter shall be 0.95% per annum;
provided however, that if at any time the Borrower’s Consolidated
Indebtedness falls below 70% of its Consolidated Total Capitalization, then
during such period the Applicable Margin will be 0.85% per annum until the
fifth
anniversary of the Effective Date, and thereafter shall be 0.90%.
(p) The
definition of “Collateral Disposition” in Section 13 shall be modified to add,
after “Mortgaged Vessel”, “or, in the case of Genco Investments, its
Investments,”.
(q) The
definition of “Credit Documents” in Section 13 shall be amended to include the
following at the end thereof “and, for the avoidance of doubt shall include any
and all documents executed by Genco Investments pursuant to the terms of this
Agreement as amended”.
(r) The
definition of “Genco Investments” shall be inserted in the appropriate
alphabetical place in Section 13 as follows: “means Genco Investments LLC, a
▇▇▇▇▇▇▇▇ Islands limited liability company.”
(s) The
definition of “Jinhui Pledge” in Section 13 shall be revised to replace the word
“Borrower” with “Genco Investments” and the reference to Section 7.04 shall be
changed to Section 7.03.
(t) The
definition of “Required Repayments” will be added to Section 13 and such
definition shall read ““Required Repayments” shall have the meaning
provided in Section 4.03.”
(u) The
definition of “Subsidiary Guarantor” shall be amended by the insertion of the
following “(other than Genco Investments)” immediately after “Borrower” in the
second line thereof.
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6. Fees
and Expenses. The Borrower shall pay promptly to the Lenders all
costs and expenses (including reasonable legal fees) of the Lenders in
connection with the preparation and execution of this Amendment and each of
the
Guaranty and the Pledge and Security Agreement to be executed by Genco
Investments.
7. No
Other Amendment. All other terms and conditions of the Original
Agreement shall remain in full force and effect and the Original Agreement
shall
be read and construed as if the terms of this Amendment were included therein
by
way of addition or substitution, as the case may be.
8. Other
Documents. By the execution and delivery of this Amendment, each
of the parties hereby consents and agrees that all references in the Note and
the Security Documents to the Original Agreement shall be deemed to refer to
the
Original Agreement as amended and supplemented by this Amendment. By the
execution and delivery of this Amendment, the Borrower hereby consents and
agrees that the Security Documents and any other documents that have been or
may
be executed as security for the Facility and any of its obligations under the
Original Agreement, the Note or any Security Document shall remain in full
force
and effect notwithstanding the amendments contemplated hereby.
9. Conditions
Precedent. The effectiveness of this Amendment shall be expressly
subject to the following conditions precedent:
(a) Corporate
Documents. The Lenders shall have received such evidence as it
may reasonably require as to the authority of the officers or attorneys-in-fact
of the Borrower executing this Amendment and the officers or attorneys-in-fact
of Genco Investments executing the Guaranty and the Pledge and Security
Agreement relating to the Pledged Securities in Jinhui;
(b) Amendment,
Guaranty and Pledge and Security Agreement. The Borrower shall
have executed and delivered to the Lenders this Amendment and each of the
Guarantors shall have consented hereto, the Borrower shall have executed a
supplement to its Pledge and Security Agreement or a new Pledge and Security
Agreement in respect of its shares in Genco Investments and Genco Investments
shall have executed and delivered to the Lenders a Guaranty and the Pledge
and
Security Agreement relating to, inter alia, the Pledged Securities in Jinhui,
together with any and all related documents required in connection therewith
to
the satisfaction of the Lenders;
(c) Depository
Account. The Administrative Agent shall have received evidence to
the satisfaction of the Lenders that Genco Investments has established a
Norwegian Central Securities Depository Account (the “Depository
Account”);
(d) No
Event of Default. The Lenders shall be satisfied that no Event of
Default or event which, with the passage of time, giving of notice or both
would
become an Event of Default have occurred and be continuing and the
representations and warranties of the Borrower contained in the Original
Agreement and this Amendment, shall be true on and as of the date of this
Amendment; and
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(e) Opinion
of Counsel. The Administrative Agent shall have received relevant
and satisfactory legal opinions from (i) Wikborg, Rein & Co., special
Norwegian counsel to the Agent and Lenders, an opinion addressed to the
Administrative Agent and each of the Lenders, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Islands counsel to the Borrower and Genco Investments,
(iii) ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to
the Borrower and Genco Investments and (iv) such other legal opinions as
the Administrative Agent may require.
10. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
11. Further
Assurances. The Borrower hereby consents and agrees that if this
Amendment or any of the Security Documents shall at any time be deemed by the
Lenders for any reason insufficient in whole or in part to carry out the true
intent and spirit hereof or thereof, it will execute or cause to be executed
such other and further assurances and documents as in the reasonable opinion
of
the Lenders may be reasonably required in order more effectively to accomplish
the purposes of this Amendment or any of the Security Documents.
12. Counterparts. This
Amendment may be executed in as many counterparts as may be deemed necessary
or
convenient, and by the different parties hereto on separate counterparts each
of
which, when so executed, shall be deemed to be an original but all such
counterparts shall constitute but one and the same agreement.
13. Headings;
Amendment. In this Amendment, section headings are inserted for
convenience of reference only and shall be ignored in the interpretation of
this
Amendment. This Amendment cannot be amended other than by written
agreement signed by the parties hereto.
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IN
WITNESS WHEREOF, each of the parties hereto has executed this Amendment by
its
duly authorized representative on the day and year first above
written.
BORROWER:
GENCO
SHIPPING &
TRADING LIMITED, as Borrower
By_________________________________
Name:
Title:
Address:
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
Facsimile:
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DNB
NOR BANK ASA, NEW
YORK BRANCH, as Administrative Agent,
Collateral
Agent,
Mandated Lead Arranger, Bookrunner and a Lender
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
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