AMENDATORY AGREEMENT
Exhibit 10.3
THIS AMENDATORY AGREEMENT (this “Amendatory Agreement”) is made as of August 14, 2015
AMONG
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(1) |
EAGLE BULK SHIPPING INC., as Borrower; |
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(2) |
THE COMPANIES listed in Schedule 8 as joint and several Guarantors; |
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(3) |
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders; |
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(4) |
THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 2 as Swap Banks; |
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(5) |
ABN AMRO CAPITAL USA LLC, CRéDIT AGRICOLE CORPORATE AND INVESTMENT BANK and CIT FINANCE LLC, as Mandated Lead Arrangers and as Bookrunners; |
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(6) |
ABN AMRO CAPITAL USA LLC and CRéDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Structuring Banks; |
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(7) |
ABN AMRO CAPITAL USA LLC, as Agent; and |
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(8) |
ABN AMRO CAPITAL USA LLC, as Security Trustee. |
PRELIMINARY STATEMENTS:
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(A) |
The Borrower, the Guarantors, the Lenders, the Swap Banks, the Mandated Lead Arrangers, the Bookrunners, the Structuring Banks, the Agent and the Security Trustee are parties to a Loan Agreement dated as of October 9, 2014 (the “Loan Agreement”) providing for a senior secured revolving credit facility and term loan facility of (originally) up to $275,000,000 for the purposes described therein. |
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(B) |
The Parties have agreed to amend certain provisions of the Loan Agreement, in each case as herein provided. |
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, it is agreed as follows:
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1. |
DEFINITIONS |
Words and expressions defined in the Loan Agreement shall have the same meaning when used in this Amendatory Agreement unless the context otherwise requires.
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2. |
REPRESENTATIONS AND WARRANTIES |
Each of the Borrower and the Guarantors jointly and severally represents and warrants to each Creditor Party that:
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(a) |
All of the representations and warranties contained in Clause 10 of the Loan Agreement are true and correct on and as of the date hereof as if made on and as of the date hereof. |
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(b) |
This Amendatory Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms. |
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(c) |
It has the capacity and has taken all action, if applicable, and no consent of any person is required for it to execute and comply with its obligations under this Amendatory Agreement. |
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(d) |
The execution of this Amendatory Agreement, and compliance with this Amendatory Agreement, will not result in a contravention of any law or regulation, its constitutional documents, or any contractual or other obligation or restriction which is binding on it or any of its assets. |
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3. |
AMENDMENTS TO LOAN AGREEMENT |
With effect from the date hereof:
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3.01 |
Clause 11.1(g)(iv) of the Loan Agreement is amended to insert the following proviso at the end thereof: |
“; provided, however, for each fiscal quarter ending during the period commencing on December 31, 2015 until September 30, 2016, the Borrowers shall prepare and deliver to the Agent a Compliance Certificate (A) together with the quarterly reports that the Borrower delivers in (ii) above in respect of matters other than the minimum required security cover under Clause 15.2, and (B) within 45 days after the end of each of the first three fiscal quarters of each Fiscal Year and within 75 days after the end of the fourth fiscal quarter of each Fiscal Year, solely in respect of the minimum required security cover under Clause 15.2; and”
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3.02 |
Clause 11.1(h)(i) of the Loan Agreement is amended to insert the following proviso at the end thereof: |
“; provided, however, for each fiscal quarter ending during the period commencing on December 31, 2015 until and including September 30, 2016, the Agent shall procure at least two written appraisal reports setting forth the Fair Market Value of each Ship, at the Borrower’s expense, for inclusion with the Compliance Certificate required to be delivered under Clause 11.1(g)(iv) in respect of each such fiscal quarter, each such written appraisal report to be procured as of a date not earlier than 10 days prior to the date of the relevant Compliance Certificate;”
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3.03 |
Clause 11.2(i)(ii) of the Loan Agreement is amended and restated to read in its entirety as follows: |
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“(ii) |
Prior to December 31, 2016 or, at any time after December 31, 2016, if an Event of Default or a Potential Event of Default has occurred and is continuing or if the Borrower is not in compliance with Clause 11.1(h)(i) of this Agreement for the Fiscal Year ending on December 31, 2016, none of the Borrower or the Guarantors shall declare or pay any dividends or return any capital to its equity holders or authorize or make any other distribution, payment or delivery of property or cash to its equity holders, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for value, any interest of any class or series of its Equity Interests (or acquire any rights, options or warrants relating thereto but not including convertible debt) now or hereafter outstanding, or repay any subordinated loans to equity holders or set aside any funds for any of the foregoing purposes.” |
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3.04 |
Clause 12.3(a) of the Loan Agreement is amended and restated to read in its entirety as follows: |
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“(a) |
On the last day of the fiscal quarter ending on December 31, 2016 and on the last day of each succeeding fiscal quarter, the Borrower shall maintain an Interest Coverage Ratio of not less than 2.50 to 1.00 (the “Minimum Interest Coverage Ratio”) calculated: |
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(i) |
on a trailing two quarter basis for the fiscal quarter ending December 31, 2016, |
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(ii) |
on a trailing three quarter basis for the fiscal quarter ending March 31, 2017, and |
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(iii) |
on a trailing four quarter basis for the fiscal quarter ending June 30, 2017 and each succeeding fiscal quarter thereafter.“ |
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3.05 |
Clause 15.2 of the Loan Agreement is amended and restated to read in its entirety as follows: |
“15.2 Minimum required security cover. If, at any time, the Agent notifies the Borrower that:
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(a) |
the Security Value; plus |
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(b) |
the net realizable value of any additional Collateral previously provided under this Clause 15, |
is below:
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(i) |
prior to June 30, 2017, 165 percent of the Loan, |
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(ii) |
on or after July 1, 2017 and on or before October 14, 2017, 157.5 percent of the Loan, and |
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(iii) |
thereafter, 165 percent of the Loan, |
the Agent (acting upon the instruction of the Majority Lenders or any Mandated Lead Arranger) shall require the Borrower to comply with the requirements of Clause 15.3.”
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3.06 |
Except as provided herein, all the remaining provisions of the Loan Agreement shall remain unchanged, valid and binding on all the parties thereto. Each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the “Loan Agreement” in any of the other Finance Documents, shall mean and refer to the Loan Agreement as amended hereby. |
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4. |
FEES AND EXPENSES |
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4.01 |
The Borrower shall pay to the Agent for distribution among the Lenders pro rata according to their Contributions on or before the date of this Amendatory Agreement a non-refundable amendment fee of $500,000. |
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4.02 |
The Borrower agrees that the provisions of Clause 21 (Fees and Expenses) of the Loan Agreement shall apply to this Amendatory Agreement. |
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5. |
ENTIRE AGREEMENT |
This Amendatory Agreement constitutes the full and entire agreement of the Parties with respect to the transactions contemplated herein.
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6. |
COUNTERPARTS |
This Amendatory Agreement may be executed in any number of counterparts.
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7. |
Governing law |
THIS AMENDATORY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
This Amendatory Agreement has been entered into as of the date stated at the beginning of this Amendatory Agreement.
SIGNATORIES
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EAGLE BULK SHIPPING INC., as Borrower |
Avocet Shipping LLC | |||
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Bittern Shipping LLC |
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By: /s/Xxxx Xxxxxx |
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Canary Shipping LLC |
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Name: Xxxx Xxxxxx |
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Cardinal Shipping LLC |
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Title: Chief Financial Officer |
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Condor Shipping LLC |
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Crane Shipping LLC Crested Eagle Shipping LLC Crowned Eagle Shipping LLC Egret Shipping LLC Falcon Shipping LLC Gannet Shipping LLC Golden Eagle Shipping LLC Goldeneye Shipping LLC Xxxxx Shipping LLC Harrier Shipping LLC Hawk Shipping LLC Ibis Shipping LLC Imperial Eagle Shipping LLC Xxxxxx Shipping LLC Xxx Shipping LLC Kestrel Shipping LLC Kite Shipping LLC Kittiwake Shipping LLC Kingfisher Shipping LLC Xxxxxx Shipping LLC Merlin Shipping LLC Nighthawk Shipping LLC Oriole Shipping LLC Osprey Shipping LLC Owl Shipping LLC Peregrine Shipping LLC Petrel Shipping LLC Puffin Shipping LLC Redwing Shipping LLC Roadrunner Shipping LLC Sandpiper Shipping LLC Shrike Shipping LLC Skua Shipping LLC Sparrow Shipping LLC Stellar Eagle Shipping LLC Tern Shipping LLC Xxxxxxxx Shipping LLC Thrush Shipping LLC |
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Woodstar Shipping LLC Xxxx Shipping LLC, as Guarantors |
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Attorney-in-fact |
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ABN AMRO CAPITAL USA LLC, as Lender, Mandated Lead Arranger, Bookrunner, Structuring Bank, Agent, and Security Trustee |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: |
Xxxxxx Xxxxxx |
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Title: |
Director |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: |
Xxxxxxx Xxxxxx |
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Title: |
Managing Director |
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ABN AMRO BANK N.V., as Swap Bank |
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By: |
/s/ A.C.A.J Biesbroeck |
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Name: |
A.C.A.J Biesbroeck |
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Title: |
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By: |
/s/ M.N.Xxxxxxxxx |
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Name: |
M.N.Xxxxxxxxx |
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Title: |
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CRéDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Lender, Mandated Lead Arranger, Bookrunner, Structuring Bank and Swap Bank |
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Associate |
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By: |
/s/ Xxxxx Xxxxxxxxxx |
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Name: |
Xxxxx Xxxxxxxxxx |
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Title: |
Associate |
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CIT FINANCE LLC, as Mandated Lead Arranger and Bookrunner |
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Chief Credit Officer, Maritime Finance |
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CIT BANK, N.A. (as successor by merger to CIT BANK), as Lender and Swap Bank |
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By: |
/s/ Xxxx Xxxxxx |
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Name: |
Xxxx Xxxxxx |
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Title: |
Chief Credit Officer, Maritime Finance |
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DEUTSCHE BANK AG FILIALE DEUTSCHLANDGESCHÄFT, as Lender |
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By: |
/s/ Xxxxxxx Duemert |
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Name: |
Xxxxxxx Duemert |
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Title: |
Vice President |
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NIBC BANK N.V., as Lender |
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By: |
/s/ Jan Xxxxxx Xxx Xxxxxx |
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Name: |
Jan Xxxxxx Xxx Xxxxxx |
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Title: |
Managing Director |
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By: |
/s/ Jan-Xxxxxx Xxxxxxxxxxxxxxx |
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Name: |
Jan-Xxxxxx Xxxxxxxxxxxxxxx |
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Title: |
Vice President |
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SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL), as Lender |
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By: |
/s/ Xxxx Xxxxx-Skielse |
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Name: |
Xxxx Xxxxx-Skielse |
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Title: |
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By: |
/s/ Per Bjernekull |
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Name: |
Per Bjernekull |
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Title: |
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SCHEDULE 1
LENDERS
ABN AMRO Capital USA LLC
Crédit Agricole Corporate and Investment Bank
CIT Bank, N.A. (as successor by merger to CIT Bank)
Deutsche Bank AG Filiale Deutschlandgeschäft
NIBC Bank N.V.
Skandinaviska Enskilda Xxxxxx XX (publ)
SCHEDULE 2
SWAP BANKS
ABN AMRO Bank N.V.
Credit Agricole Corporate and Investment Bank
CIT Bank, N.A. (as successor by merger to CIT Bank)
SCHEDULE 8
Guarantors
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Avocet Shipping LLC |
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Bittern Shipping LLC |
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Canary Shipping LLC |
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Cardinal Shipping LLC |
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Condor Shipping LLC |
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Crane Shipping LLC |
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Crested Eagle Shipping LLC |
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Crowned Eagle Shipping LLC |
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Egret Shipping LLC |
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Falcon Shipping LLC |
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Gannet Shipping LLC |
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Golden Eagle Shipping LLC |
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Goldeneye Shipping LLC |
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Xxxxx Shipping LLC |
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Harrier Shipping LLC |
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Hawk Shipping LLC |
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Ibis Shipping LLC |
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Imperial Eagle Shipping LLC |
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Xxxxxx Shipping LLC |
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Xxx Shipping LLC |
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Kestrel Shipping LLC |
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Kite Shipping LLC |
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Kittiwake Shipping LLC |
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Kingfisher Shipping LLC |
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Xxxxxx Shipping LLC |
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Merlin Shipping LLC |
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Nighthawk Shipping LLC |
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Oriole Shipping LLC |
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Osprey Shipping LLC |
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Owl Shipping LLC |
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Peregrine Shipping LLC |
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Petrel Shipping LLC |
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Puffin Shipping LLC |
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Redwing Shipping LLC |
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Roadrunner Shipping LLC |
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Sandpiper Shipping LLC |
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Shrike Shipping LLC |
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Skua Shipping LLC |
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Sparrow Shipping LLC |
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Stellar Eagle Shipping LLC |
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Tern Shipping LLC |
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Xxxxxxxx Shipping LLC |
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Thrush Shipping LLC |
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Woodstar Shipping LLC |
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Xxxx Shipping LLC |
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