EXHIBIT 10.3
XXXXX & XXXXX LLP
FIRST SUPPLEMENTAL AGREEMENT TO
US$262,456,000 CREDIT FACILITY
Between
XXXXXXXX MARITIME LIMITED
as Borrower
with
XXXXXXXX MARITIME INVESTORS LLC
XXXXXXXX MANAGEMENT, LLC
KING COAL SHIPCO LLC
FEARLESSSHIPCO LLC
COAL AGE SHIPCO LLC
IRON MAN SHIPCO LLC
XXXXX XXXX XXXXXX LLC
XXXXXXX XXXXXX LLC
COAL GLORY SHIPCO LLC
COAL PRIDE SHIPCO LLC
as Guarantors
with
CITIBANK, N.A.
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as Lenders
Arranged by
CITIGROUP GLOBAL MARKETS LIMITED
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
with
CITIBANK INTERNATIONAL PLC
as Facility Agent
and
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
June, 2005
CONTENTS
PAGE
CLAUSE
1. Interpretation.............................. 2
2. Amendments.................................. 3
3. Representations............................. 5
4. Consents.................................... 6
5. Miscellaneous............................... 6
6. Governing law............................... 6
SCHEDULE
1. The Owners.................................. 7
2. Conditions Precedent........................ 8
3. The Lenders and their Commitments........... 9
4. Revised Repayment Schedule.................. 10
Signatories..................................... 13
THIS AGREEMENT is dated June, 2005
BETWEEN:
(1) XXXXXXXX MARITIME LIMITED, a corporation incorporated according to the
laws of the Republic of the Xxxxxxxx Islands with its registered office at
Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx of the Xxxxxxxx Xxxxxxx,
XX 00000 (the BORROWER);
(2) THE COMPANIES listed in Schedule 1, each of which is a limited liability
company formed according to the law of the country indicated against its
name in Schedule 1, with its registered office at Xxxxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx of the Xxxxxxxx Xxxxxxx, XX 00000 (each an
OWNER and together the OWNERS);
(3) XXXXXXXX MARITIME INVESTORS LLC, a limited liability company formed
according to the laws of the Republic of the Xxxxxxxx Islands with its
registered office at Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx of
the Xxxxxxxx Xxxxxxx, XX 00000 (XXXXXXXX);
(4) XXXXXXXX MANAGEMENT, LLC, a limited liability company formed according to
the laws of the Republic of the Xxxxxxxx Islands with its registered
office at Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx of the Xxxxxxxx
Xxxxxxx, XX 00000 (XXXXXXXX MANAGEMENT and, together with the Owners and
Xxxxxxxx, the GUARANTORS);
(5) CITIBANK, N.A. as original lender (the ORIGINAL LENDER);
(6) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as new lender (the NEW
LENDER, and, together with the Original Lender, the LENDERS);
(7) CITIGROUP GLOBAL MARKETS LIMITED (the ORIGINAL ARRANGER) and THE GOVERNOR
AND COMPANY OF THE BANK OF SCOTLAND (the NEW ARRANGER) as joint mandated
lead arrangers (together the ARRANGERS);
(8) CITIBANK INTERNATIONAL PLC as administrative agent (the FACILITY AGENT);
and
(9) CITICORP TRUSTEE COMPANY LIMITED as security trustee for (i) the Tranche A
Lenders (as defined herein) in relation to the Tranche A Loans (as defined
herein), and (ii) as security trustee for the Tranche B Lenders (as
defined herein) and Swap Bank (as defined herein) in relation to the
Tranche B Loans (as defined herein) and the Swap Agreements (as defined
herein) (the SECURITY TRUSTEE).
WHEREAS
(A) This Agreement is supplemental to and amends a credit agreement dated 29th
April, 2005 (the CREDIT Agreement) between the Borrower, the Guarantors,
the Original Lender, the Original Arranger, the Facility Agent and the
Security Trustee, pursuant to which the Original Lender in its capacity as
Tranche A Lender made the Tranche A Loans available to the Borrower, and
the Original Lender in its capacity as Tranche B Lender made the Tranche B
Loans available to the Borrower (as each such term is defined in the
Credit Agreement).
(B) Pursuant to a transfer certificate dated on or around the date of this
Agreement the Original Lender transferred its interest in the Tranche B
Loans to the New Lender. It is a condition to such transfer certificate
coming into effect that each of the parties hereto execute this Agreement,
which will amend and restate the Credit Agreement.
1
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
(a) In this Agreement:
AMENDED CREDIT AGREEMENT has the meaning ascribed thereto in Clause 2.1.
ARRANGER has the meaning ascribed thereto in the Preamble.
BORROWER has the meaning ascribed thereto in the Preamble.
CREDIT AGREEMENT has the meaning ascribed thereto in the Preamble.
EFFECTIVE DATE means the date on which all documents set out in Schedule 2
(Conditions Precedent Documents) have been received by the Facility Agent
and which shall not in any event be later than 15th June, 2005 unless
otherwise agreed in writing by the Borrower and the Facility Agent.
FACILITY AGENT has the meaning ascribed thereto in the Preamble.
GROUP shall have the meaning ascribed thereto in the Credit Agreement.
GUARANTORS has the meaning ascribed thereto in the Preamble.
LENDERS has the meaning ascribed thereto in the Preamble.
NEW ARRANGER has the meaning ascribed thereto in the Preamble.
NEW LENDER has the meaning ascribed thereto in the Preamble.
ORIGINAL ARRANGER has the meaning ascribed thereto in the Preamble.
ORIGINAL LENDER has the meaning ascribed thereto in the Preamble.
OWNERS has the meaning ascribed thereto in the Preamble.
XXXXXXXX has the meaning ascribed thereto in the Preamble.
XXXXXXXX MANAGEMENT has the meaning ascribed thereto in the Preamble.
SECURITY TRUSTEE has the meaning ascribed thereto in the Preamble.
SUBORDINATION DEED shall have the meaning ascribed thereto in the Credit
Agreement.
SWAP AGREEMENTS shall have the meaning ascribed thereto in the Credit
Agreement.
(b) Capitalised terms defined in the Credit Agreement have, unless expressly
defined in this Agreement, the same meaning in this Agreement.
1.2 CONSTRUCTION
The principles of construction set out in Clause 1.2 of the Credit
Agreement will have effect as if set out in this Agreement.
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2. AMENDMENTS
2.1 DECLARATION OF EFFECTIVE DATE
(a) Subject as set out below, the Credit Agreement will be amended from the
Effective Date in accordance with Clause 2.2 (the AMENDED CREDIT
AGREEMENT).
(b) The Credit Agreement will not be amended by this Agreement unless the
Facility Agent notifies the Borrower and the Finance Parties that it has
received all of the documents set out in Schedule 2 (Conditions Precedent
Documents) in form and substance satisfactory to the Facility Agent on or
prior to the Effective Date. The Facility Agent must give this
notification as soon as reasonably practicable.
(c) If the Facility Agent fails to give the notification under Clause 2.1 (b)
by the Effective Date, the Credit Agreement will not be amended in the
manner contemplated by this Agreement.
2.2 AMENDMENTS TO CREDIT AGREEMENT
From the Effective Date the Credit Agreement will be amended as follows:
(a) All references in the Credit Agreement to "Arranger" shall be
construed as including both the Original Arranger and the New
Arranger;
(b) The definition of "Final Maturity Date" in Clause 1.1. of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
"FINAL MATURITY DATE means the date falling six (6) years and five
(5) months from the date of this Agreement."
(c) The definition of "Operating Account" in Clause 1.1 of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
"OPERATING ACCOUNT" means the bank account to be opened by Xxxxxxxx
Management with the Account Bank with account number 0/444072/008
USD, IBAN XX00 0000 0000 0000 0000 0000 000 and designated "Xxxxxxxx
Management LLC - Operating Account"."
(d) The definition of "Tranche A Margin" in Clause 1.1 of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
"TRANCHE A MARGIN means 1.565 per cent. per annum."
(e) The definition of "Tranche B Margin" in Clause 1.1 of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
"TRANCHE B MARGIN means 2.75 per cent. per annum."
(f) The references to "tanker" in the definition of each of Vessel 1,
Vessel 2, Vessel 3, Vessel 4, Vessel 5, Vessel 6, Vessel 7 and
Vessel 8 in Clause 1.1 of the Credit Agreement shall be deleted and
replaced with "bulk carrier".
(g) The first sentence of Clause 5(a) of the Credit Agreement shall be
deleted in its entirety and replaced with the following:
"The Borrower must repay the Loans to the Facility Agent on each
Repayment Date in accordance with the relevant Repayment Schedule,
provided that with respect to the
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Tranche A Repayment Instalment due on each of the first and second
Tranche A Repayment Dates, (i) the Borrower shall be permitted to
defer payment of that portion of each such Tranche A Repayment
Instalments that exceeds the amounts on deposit in the Reserve
Account on each such date until the date on which the Charter
Shortfall Payment referred to in Clause 6.3(d) shall become due and
payable at which time such Charter Shortfall Payment shall first be
applied to repay such deferred amount and, to the extent of any
excess, then applied in accordance with the second sentence of such
Clause 6.3(d) and (ii) no Default shall be deemed to exist as a
result of such deferral."
(h) Clause 6.2(b) of the Credit Agreement shall be deleted in its
entirety and replaced with the following:
"(b) The Facility Agent shall apply the prepayment referred to in
Clause 6.2(a) in accordance with Clause 8.5 of the
Subordination Deed."
(i) The second sentence of Clause 6.3(d) of the Credit Agreement shall
be deleted in its entirety and replaced with the following:
"The Charter Shortfall Payment shall be applied by the Facility
Agent against Tranche A Loans, against Tranche A Repayment
Instalments in order of maturity. "
(j) The references to "Tranche A Majority Lenders" in each of:
(i) Clause 6.4(b) of the Credit Agreement;
(ii) Clause 20.4 of the Credit Agreement;
(iii) Clause 20.11(a) of the Credit Agreement;
(iv) Clauses 20.14 (a) and (b) of the Credit Agreement; and
(v) Clause 21.7(b)(ii) of the Credit Agreement,
shall each be deleted and replaced with "Majority Lenders".
(k) Clause 12.4 of the Credit Agreement shall be amended by the addition
of a new final sentence as follows:
"The requirements of this Section 12.4 shall not be applicable with
respect to any shortfall in the Reserve Account that arises as a
result of the Borrower's inability to deposit sufficient funds in
the Reserve Account to provide for the payment of the Tranche A
Repayment Instalment due on each of the first and second Tranche A
Repayment Dates, and no Default shall be deemed to exist as a result
of such failure."
(l) Clause 12.5 of the Credit Agreement shall be amended by the addition
of a new final sentence as follows:
"The Facility Agent shall apply amounts standing to the credit of
the Reserve Account against Tranche A Loans and Tranche B Loans that
are then due and payable on a pari passu basis."
(m) Schedule 1, Part 2 of the Credit Agreement shall be deleted in its
entirety and replaced with a new list of Original Lenders and their
commitments in the form set out in Schedule 3 (Lenders and their
Commitments) hereto.
4
(n) Schedule 6 of the Credit Agreement shall be deleted in its entirety
and replaced with a new repayment schedule in the form set out in
Schedule 4 (Revised Repayment Schedule) hereto.
2.3 APPOINTMENT OF ADDITIONAL ARRANGER
Pursuant to Clause 30.7 of the Credit Agreement the Original Arranger has
appointed the New Arranger as an additional lead arranger. Each of the
parties to this Agreement consents to such appointment and all references
to "Arranger" in the Credit Agreement shall, from the Effective Date, be
construed accordingly.
2.4 CONSENT TO TRANSFER
In accordance with Clause 30.2(c) of the Credit Agreement, the Borrower
hereby consents to the transfer by the Original Lender to the New Lender
of all of Original Lender's rights and obligations with respect to the
Tranche B Loans and the Commitment to make Tranche B Loans.
3. REPRESENTATIONS
3.1 REPRESENTATIONS
The representations set out in this Clause are made by each of the
Borrower and the Guarantors on the date of this Agreement to each Finance
Party.
3.2 POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of this Agreement and
the transactions contemplated by this Agreement.
3.3 LEGAL VALIDITY
This Agreement constitutes its legally binding, valid and enforceable
obligation and in entering into this Agreement, it is acting on its own
account.
3.4 NON-CONFLICT
The entry into and performance by it of, and the transactions contemplated
by, this Agreement do not and will not conflict with:
(a) any law or regulation or judicial or official order applicable to it
as at the date of this Agreement;
(b) the constitutional documents of any member of the Group; or
(c) any document which is binding on it or any member of the Group or
any assets of any member of the Group.
3.5 AUTHORISATIONS
All authorisations, consents, registrations, filings, notarisations and
the like required by it or desirable in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, this Agreement have been obtained or effected (as
appropriate) and are in full force and effect.
5
3.6 CREDIT AGREEMENT
The representations set out in clause 15 (Representations) of the Credit
Agreement are true as if made on the date of this Agreement and on the
Effective Date, in each case as if references to the Credit Agreement are
references to the Amended Credit Agreement with reference to the facts and
circumstances then existing.
4. CONSENTS
Each of the Borrower and the Guarantors:
(a) agrees to the amendment and restatement of the Credit Agreement as
contemplated by this Agreement; and
(b) with effect from the Effective Date, confirms that any security or
guarantee created or given by it under a Finance Document will:
(i) continue in full force and effect; and
(ii) extend to the liabilities and obligations of the Borrower to
the Finance Parties under the Finance Documents as amended by
this Agreement.
5. MISCELLANEOUS
5.1 Each of this Agreement and the Amended Credit Agreement is a Finance
Document.
5.2 Subject to the terms of this Agreement, the Credit Agreement will remain
in full force and effect and, from the Effective Date, the Credit
Agreement and this Agreement will be read and construed as one document.
6. GOVERNING LAW
6.1 This Agreement is governed by English law.
6.2 Clauses 34, 35, 36, 37, 38 and 39 of the Credit Agreement shall apply to
this Agreement as if they were set out in full herein.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
THE OWNERS
COUNTRY OF
NAME OF OWNER FORMATION
Fearless Shipco LLC Republic of the Xxxxxxxx Islands
King Coal Shipco LLC Republic of the Xxxxxxxx Islands
Coal Glory Shipco LLC Republic of the Xxxxxxxx Islands
Coal Age Shipco LLC Republic of the Xxxxxxxx Islands
Iron Man Shipco LLC Republic of the Xxxxxxxx Islands
Xxxxx Xxxx Xxxxxx LLC Republic of the Xxxxxxxx Islands
Xxxxxxx Xxxxxx LLC Republic of the Xxxxxxxx Islands
Coal Pride Shipco LLC Republic of the Xxxxxxxx Islands
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SCHEDULE 2
CONDITIONS PRECEDENT
1. A duly executed original of a transfer certificate between the Original
Lender in its capacity as Tranche B Lender and the New Lender, in
substantially the same form as that set out in Schedule 5 to the Credit
Agreement, pursuant to which the Original Lender transfers and agrees to
transfer all of its interest in the Tranche B Loans to the New Lender.
2. A duly executed deed of accession executed by the New Lender, in
substantially the same form as that set out in Schedule 2 to the
Subordination Deed, pursuant to which the New Lender accedes to and agrees
to be bound by the terms of the Subordination Deed.
3. A duly executed original of a deed of amendment to the Subordination Deed,
executed by each of the parties to the Subordination Deed.
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SCHEDULE 3
THE LENDERS AND THEIR COMMITMENTS
Name of Lender Tranche A Commitments(US$) Tranche B Commitments (US$)
------------------------ ------------------------------ --------------------------
Citibank N.A. $213,245,500 -
The Governor and Company
of the Bank of Scotland - $49,210,500
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SCHEDULE 4
REVISED REPAYMENT SCHEDULE
TRANCHE A
INSTALMENT
NUMBER DATE AMOUNT (UNITED STATES DOLLARS)
----------- ------------------ -------------------------------
1 30 December, 2005 19,500,000
2 30 March, 2006 11,750,000
3 30 June, 2006 11,750,000
4 30 September, 2006 11,750,000
5 30 December, 2006 11,750,000
6 30 March, 2007 7,125,000
7 30 June, 2007 7,125,000
8 30 September, 2007 7,125,000
9 30 December, 2007 7,125,000
10 30 March, 2008 5,250,000
11 30 June, 2008 5,250,000
12 30 September, 2008 5,250,000
13 30 December, 2008 5,250,000
14 30 March, 2009 4,250,000
15 30 June, 2009 4,250,000
16 30 September, 2009 4,250,000
17 30 December, 2009 4,250,000
18 30 March, 2010 4,250,000
19 30 June, 2010 4,250,000
10
20 30 September, 2010 4,250,000
21 30 December, 2010 4,250,000
22 30 March, 2011 4,250,750
23 30 June, 2011 4,250,750
24 30 September, 2011 54,744,000
TRANCHE B
INSTALMENT
NUMBER DATE AMOUNT (UNITED STATES DOLLARS)
----------- -------------------------------------- ------------------------------
1 30 December, 2005 0
2 12 months from the date of the Credit 25,000,000
Agreement
3 30 June, 2006 0
4 30 September, 2006 0
5 30 December, 2006 0
6 30, March, 2007 333,375
7 30, June, 2007 333,375
8 30, September, 2007 333,375
9 30, December, 2007 333,375
10 30, March, 2008 333,375
11 30, June, 2008 333,375
12 30, September, 2008 333,375
13 30, December, 2008 333,375
14 30, March, 2009 333,375
15 30, June, 2009 333,375
16 30, September, 2009 333,375
11
17 30, December, 2009 333,375
18 30, March, 2009 333,375
19 30, June, 2009 333,375
20 30, September, 2009 333,375
21 30, December, 2009 333,375
22 30, March, 2010 333,375
23 30, June, 2010 333,375
24 30 September, 2011 18,209,750
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SIGNATORIES
THE BORROWER
XXXXXXXX MARITIME LIMITED
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
THE GUARANTORS
XXXXXXXX MARITIME INVESTORS LLC
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Manager
XXXXXXXX MANAGEMENT LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
KING COAL SHIPCO LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
13
FEARLESS SHIPCO LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
COAL AGE SHIPCO LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
IRON MAN SHIPCO LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXX XXXX XXXXXX LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
14
XXXXXXX XXXXXX LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
COAL GLORY SHIPCO LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
COAL PRIDE SHIPCO LLC
By: XXXXXXXX MARITIME LIMITED, its Sole
Member
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
THE LENDERS
CITIBANK, N.A.
By:
THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND
By:
15
THE ARRANGERS
CITIGROUP GLOBAL MARKETS LIMITED
By:
THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND
By:
THE FACILITY AGENT
CITIBANK INTERNATIONAL PLC
By:
THE SECURITY TRUSTEE
CITICORP TRUSTEE COMPANY LIMITED
By:
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