AMENDMENT AND SUPPLEMENT NO. 4 TO SENIOR SECURED CREDIT AGREEMENT
Exhibit
10.39
AMENDMENT
AND SUPPLEMENT NO. 4 TO
THIS
AMENDMENT AND SUPPLEMENT NO. 4 TO SENIOR SECURED CREDIT AGREEMENT (this “Amendment”) is made as of
January 26, 2009, by and among (1) GENCO SHIPPING & TRADING LIMITED, a
corporation organized and existing under the laws of the Republic of Xxxxxxxx
Islands (the “Borrower”), (2) the banks
and financial institutions acceptable to the Borrower and Mandated Lead
Arrangers (as defined below) as are signatories hereto, as lenders (the “Lenders”), (3) DNB NOR
BANK ASA, acting through its New York branch (“DnB NOR”) as Administrative
Agent (in such capacity, the “Administrative Agent”),
mandated lead arranger, bookrunner (in such capacity, the “Bookrunner”), security trustee
and collateral agent under the Security Documents (in such capacity, the “Collateral Agent”), and (4)
BANK OF SCOTLAND PLC, as mandated lead arranger (together with DnB NOR, in such
capacity, the “Mandated Lead
Arrangers”) and amends and is supplemental to the Senior Secured Credit
Agreement dated as of July 20, 2007, as amended by Amendment and Supplement
No. 1 to the Senior Secured Credit Agreement dated as of September 21, 2007,
Amendment and Supplement No. 2 to the Senior Secured Credit Agreement dated as
of February 13, 2008 and Amendment and Supplement No. 3 to the Senior Secured
Credit Agreement dated as of June 18, 2008 (the “Credit Agreement”), made by
and among the parties. All capitalized terms used herein and defined in Section
13 of the Credit Agreement are used as therein defined.
W I T N E S S E T
H:
WHEREAS,
pursuant to the Credit 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, and the Required Lenders signatory hereto have
agreed, subject to the terms and conditions of this Amendment, that the
application of the covenant contained in Section 11.09 of the Credit Agreement
be suspended until the Borrower is able to obtain Appraisals as set forth in
Section 10.01(c) of the Credit Agreement which would establish compliance with
Section 11.09 of the Credit Agreement, and that the Borrower is otherwise able
to pay a dividend, as per the definition of Permitted Dividend Amount in the
Credit Agreement; and
WHEREAS,
the Borrower and the Required Lenders have agreed to certain other amendments to
the Credit 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 Credit 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 Credit
Agreement, the Note and the Security Documents (updated mutatis
mutandis). The Borrower hereby represents and warrants that there
have been no changes to the Certificate of Incorporation or By-Laws (or
equivalent organizational documents) of any Credit Party from the most recently
delivered copies of such documents delivered to the Administrative Agent in
connection with the Credit Agreement.
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 Credit
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 Credit Agreement, as the same is
amended and supplemented hereby, and may hereafter be amended or supplemented,
shall remain in effect.
5. Amendments to the Credit
Agreement. Subject to the terms and conditions of this
Amendment, the Credit Agreement is hereby amended and supplemented as
follows:
(a) All
references to “this Agreement” shall be deemed to refer to the Credit Agreement,
as further amended and supplemented hereby.
(b) Section
3.01(a) of the Credit Agreement shall be deleted in its entirety and replaced
with the following:
“The
Borrower agrees to pay the Administrative Agent for distribution to each Lender
a commitment commission (the “Commitment
Commission”):
(i) for the
period from the Effective Date until the earlier of (x) the close of secondary
syndication or (y) September 30, 2007, computed at a rate for each day equal to
0.20% per annum;
(ii) thereafter
until January 26, 2009, computed at a rate for each day equal to 0.250% per
annum; and
(iii) thereafter
until the Maturity Date, computed at a rate for each day equal to 0.70% per
annum;
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in each
case, on the daily average Unutilized Commitment of such
Lender. Accrued Commitment Commissions shall be due and payable
quarterly in arrears on each Payment Date and on the Maturity Date (or such
earlier date upon which the Total Commitment is terminated).”
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(c)
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Section
3.04 of the Credit Agreement shall be deleted in its entirety and replaced
with the following:
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“The
Total Facility Amount will be subject to reductions as follows: (i)
beginning on March 31, 2009 and for each quarter including the fiscal quarter
ending March 31, 2012, quarterly reductions of 0.9077705% of the Total Facility
Amount, and (ii) after the fiscal quarter ending March 31, 2012, quarterly
reductions of 3.5% of the Total Facility Amount until the Maturity Date, at
which time the Total Commitments hereunder shall reduce to zero and the Final
Payment will be due by the Borrower.”
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(d)
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Section
11.03 of the Credit Agreement shall be amended by adding the following at
the beginning of each of paragraphs (ii) and
(iii):
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“so long
as the Borrower is in actual compliance with the Collateral Maintenance covenant
set forth in Section 11.09 hereof without giving effect to any waiver
thereof,”.
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(e)
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The
definition of “Applicable Margin” set forth in Section 13.01 of the Credit
Agreement shall be deleted in its entirety and replaced with the
following:
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“shall
mean
(i) 0.80% per annum until January
26, 2009; provided however, that if at any time during the period beginning the
Effective Date and ending January 26, 2009, the Borrower’s Consolidated
Indebtedness falls below 70% of its Consolidated Total Capitalization, then
during such period the Applicable Margin will be 0.75% per annum,
and
(ii) at all times
after January 26, 2009, 2.0% per annum.”
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(f)
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The
definition of “Final Payment” set forth in Section 13.01 of the Credit
Agreement shall be amended by deleting “thirty percent (30%)” immediately
after “(i)” and immediately before the word “of”
in the first line thereof and replacing it with “eighteen and two-tenths
percent (18.2%)”.
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(g)
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The
definition of “Non-Cash Charges” set forth in Section 13.01 of the Credit
Agreement shall be amended to add the following at the end
thereof:
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“and any
non-cash loss related to the Borrower’s minority investment in
Jinhui.”
6. Waivers. By
their execution hereof, the Required Lenders hereby waive Section 11.09 of the
Credit Agreement for the period ending December 31, 2008 and waive compliance
therewith and compliance with Section 8.01(c) until such time as all of the
following are true: (a) the Borrower is able to pay cash Dividends pursuant to
Section 11.03(ii) of the Credit Agreement and purchase or redeem shares of
common stock pursuant to Section 11.03(iii) of the Credit Agreement in each case
without giving effect to the amendments thereof set forth in this Amendment, (b)
the Borrower is in compliance with Sections 11.07, 11.08, 11.09, 11.10 and 11.11
of the Credit Agreement and (c) the Borrower obtains Appraisals as set forth in
Section 10.01(c) of the Credit Agreement which establish compliance with Section
11.09 of the Credit Agreement. For the avoidance of doubt, the
Borrower shall be obligated to provide the Appraisals required pursuant to
Section 10.01(c) of the Credit Agreement notwithstanding the waiver of Section
11.09 of the Credit Agreement.
7. Fees and
Expenses. The Borrower shall pay each Lender evidencing its
agreement herewith by delivering an executed counterpart of this Amendment on or
prior to the dated hereof an amendment fee equal to 0.25% of the Total Facility
Amount, payable to each such Lender based on their pro rata Commitment of the
Total Facility Amount. The Borrower shall pay promptly to the each of
the Agents all reasonable legal fees of the Agents in connection with the
preparation and execution of this Amendment.
8. No Other
Amendment. All other terms and conditions of the Credit
Agreement shall remain in full force and effect and the Credit 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.
9. 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 Credit Agreement shall be deemed to refer to
the Credit 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 Credit Agreement, the Note or any Security Document
shall remain in full force and effect notwithstanding the amendments
contemplated hereby.
10. Compliance. Each
Security Party shall have complied with and shall then be in compliance with all
the terms, covenants and conditions of the Credit Documents and this Amendment,
which are binding upon it.
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11. No Material Adverse
Effect. By its execution hereof, the Borrower agrees that as
of the date hereof, nothing shall have occurred which would constitute a
Material Adverse Effect, nor anything that could reasonably be expected to have
a Material Adverse Effect.
12. Financial
Information. The Administrative Agent shall have received such
financial and other information concerning the Borrower as it may reasonably
request.
13. Conditions
Precedent. The effectiveness of this Amendment shall be
expressly subject to the following conditions precedent:
(a) Corporate Documents;
Proceedings; etc.
(i) The
Mandated Lead Arrangers shall have received a certificate, dated the date
hereof, signed by an Authorized Officer, member or general partner of each
Credit Party, and attested to by the secretary or any assistant secretary (or,
to the extent such Credit Party does not have a secretary or assistant
secretary, the analogous Person within such Credit Party) of such Credit Party,
as the case may be, certifying copies of resolutions of such Credit Party
approving and authorizing such Credit Party to execute this Amendment, or in the
case of the Subsidiary Guarantors, the Consent, Agreement and Reaffirmation
attached hereto, and each additional Credit Document to which it is a party, and
each of the foregoing shall be reasonably acceptable to the Mandated Lead
Arrangers.
(ii) A
certificate of the jurisdiction of incorporation or formation, as the case may
be, of each Credit Party as to the good standing thereof.
(b) Amendment and Credit
Documents.
(i) The
Borrower shall have executed and delivered to the Administrative Agent this
Amendment and shall ensure that each of the Subsidiary Guarantors shall have
executed and delivered to the Administrative Agent the Consent, Agreement and
Reaffirmation attached hereto.
(ii) The
Required Lenders shall have executed and delivered to the Administrative Agent
this Amendment.
(iii) Each
Credit Party shall have executed each additional Credit Document as may be
required by the Lenders in connection with this Amendment.
(iv) Each
Credit Party which owns or operates a Vessel shall have duly authorized,
executed and delivered, and caused to be recorded in the appropriate vessel
registry, an amendment to its respective Vessel Mortgage to secure the Credit
Agreement, as amended by this Amendment.
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(c) Certificates of Ownership;
Searches. The Administrative Agent shall have received each of
the following with respect to each Vessel owned or operated by a Credit
Party:
(i) certificates
of ownership from appropriate authorities showing (or confirmation updating
previously reviewed certificates and indicating) the registered ownership of
such Vessel by the relevant Subsidiary Guarantor; and
(ii) the
results of maritime registry searches with respect to such Vessel, indicating no
record liens other than Liens in favor of the Collateral Agent and/or the
Lenders, Permitted Liens and Liens being discharged contemporaneously with such
acquisition.
(d) Payment of
Fees. The Agents and the Lenders shall have received from the
Borrower payment of all fees in connection with this Amendment, including such
fees as are set forth in Section 7 hereof.
(e) Opinions of
Counsel.
(i) The
Administrative Agent shall have received from Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, special New York counsel to the Borrower and its Subsidiaries, an
opinion addressed to the Administrative Agent and each of the Lenders and dated
the date hereof which shall be in form and substance reasonably acceptable to
the Mandated Lead Arrangers and cover such matters incidental to the
transactions contemplated herein as the Mandated Lead Arrangers may reasonably
request.
(ii) The
Administrative Agent shall have received from (1) if the relevant Vessel is
registered under the Xxxxxxxx Islands flag, Xxxxxx & Xxxxxxx P.C., special
Xxxxxxxx Islands counsel to the Borrower, (2) Xxxxxxxxxxx X. Xxxxxxxxxxxxx, special
New York maritime counsel to the Borrower and its Subsidiaries or (3) if the
relevant Vessel is registered in an Acceptable Flag Jurisdiction other than the
Xxxxxxxx Islands, special counsel to the Administrative Agent of such Acceptable
Flag Jurisdiction, which shall be reasonably acceptable to the Administrative
Agent, an opinion addressed to the Administrative Agent and each of the Lenders
and dated hereof, which shall (x) be in form and substance reasonably
acceptable to the Administrative Agent and (y) cover the perfection of the
security interests granted pursuant to each amendment of the Vessel Mortgages
and such other matters incident thereto as the Administrative Agent may
reasonably request.
14. Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
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15. 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.
16. 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.
17. 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.
[SIGNATURE
PAGES TO FOLLOW]
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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 /s/ Xxxx X.
Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Financial
Officer, Secretary,
Treasurer
Address:
000 Xxxx
Xxxxxx, 00xx xxxxx
Xxx Xxxx,
XX 00000
Telephone:(000)
000-0000
Facsimile: (000)
000-0000
LENDERS:
DNB NOR
BANK ASA, NEW YORK BRANCH, as Administrative Agent, Collateral Agent, Mandated
Lead Arranger, Bookrunner and a Lender
By /s/ Xxxxxxx X.
Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice
President
By /s/ Xxxxxx
Xxxxx
Name: Xxxxxx Xxxxx
Title: Senior Vice
President
BANK OF
SCOTLAND PLC,
as
Mandated Lead Arranger and Lender
By /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Director
By /s/ Xxxx
Xxxx
Name:
Xxxx Xxxx
Title:
Director
WESTLB
AG, NEW YORK BRANCH,
as
Lender
By /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Director
By /s/ Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title:
Executive Director
ALLIANCE
& LEICESTER COMMERCIAL FINANCE PLC,
as
Lender
By /s/ Xxxx
XxXxxxxx
Name:
Xxxx XxXxxxxx
Title:
Head of Shipping
By /s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Senior Manager, Aviation
CREDIT
INDUSTRIEL ET COMMERCIAL, NEW YORK BRANCH,
as
Lender
By /s/ Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Vice President
By /s/ Xxxxxxxx
Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Vice President
DEXIA
BANK BELGIUM SA/NV,
as
Lender
By /s/ Xxxx
Xxxxxxxxxx
Name:
Xxxx Xxxxxxxxxx
Title:
Company Lawyer, Dexia Bank Belgium NV/SA
By /s/ Xxxxxx
Reveillon
Name:
Xxxxxx Reveillon
Title:
Company Lawyer, Dexia Bank Belgium NV/SA
LLOYDS
TSB BANK PLC
as
Lender
By /s/ Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Associate Director
SWEDBANK
AB (PUBL),
as
Lender
By /s/ Xxxxxxxx Xxxxxxxx
Name:
Xxxxxxxx Xxxxxxxx
Title:
Attorney-in-fact
By____________________________
Name:
Title:
CONSENT,
AGREEMENT AND AFFIRMATION
Each of
the undersigned Guarantors hereby consents and agrees to the terms and
conditions of the foregoing Amendment dated as of January 26, 2009 and to the
documents contemplated thereby and to the provisions contained therein relating
to conditions to be fulfilled and obligations to be performed by it pursuant to
or in connection with said Amendment and agrees particularly to be bound thereby
to the same extent as if the undersigned were a party to said
Amendment. Each of undersigned hereby reaffirms its obligations,
representations, warranties and covenants under its respective Guaranty of the
guaranty of the obligations of the Borrower to the Lenders under or in
connection with the Credit Agreement, as amended. Each of the
undersigned hereby agrees that it shall execute each additional Credit Document,
including executing and recording an amendment to its respective Vessel
Mortgage, as may be required by the Lenders in connection with the
Amendment.
GENCO
ACHERON LIMITED
GENCO
BEAUTY LIMITED
GENCO
KNIGHT LIMITED
GENCO
LEADER LIMITED
GENCO
MUSE LIMITED
GENCO
VIGOUR LIMITED
GENCO
CARRIER LIMITED
GENCO
PROSPERITY LIMITED
GENCO
SUCCESS LIMITED
GENCO
WISDOM LIMITED
GENCO
MARINE LIMITED
GENCO
EXPLORER LIMITED
GENCO
PIONEER LIMITED
GENCO
PROGRESS LIMITED
GENCO
RELIANCE LIMITED
GENCO
SURPRISE LIMITED
GENCO
SUGAR LIMITED
XXXXX
XXXXXXXX LIMITED
GENCO
TIBERIUS LIMITED
GENCO
LONDON LIMITED
XXXXX
XXXXX LIMITED
XXXXX
XXXXXXXXXXX LIMITED
GENCO
HADRIAN LIMITED
GENCO
COMMODUS LIMITED
GENCO
MAXIMUS LIMITED
XXXXX
XXXXXXXX LIMITED
GENCO
CHALLENGER LIMITED
GENCO
CHAMPION LIMITED
GENCO
CHARGER LIMITED
GENCO
HUNTER LIMITED
GENCO
PREDATOR LIMITED
GENCO
WARRIOR LIMITED
By /s/ Xxxx X.
Xxxxxxxxxx
Name:
Xxxx X. Xxxxxxxxxx
Title:
Chief Financial Officer, Secretary,
Treasurer
GENCO
RAPTOR LLC
GENCO
CAVALIER LLC
GENCO
THUNDER LLC
By /s/ Xxxx X.
Xxxxxxxxxx
Name:
Xxxx X. Xxxxxxxxxx
Title:
Manager
