EXHIBIT 10.4
XXXXX & XXXXX LLP
SECOND 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
FEARLESS SHIPCO 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
Arranged by
CITIGROUP GLOBAL MARKETS LIMITED
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as Mandated Lead Arrangers
with
CITIBANK, N.A.
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
CREDIT SUISSE
HSH NORDBANK AG, LUXEMBOURG BRANCH
ABN AMRO
as Lenders
with
CITIBANK INTERNATIONAL PLC
as Facility Agent
and
CITICORP TRUSTEE COMPANY LIMITED
as Security Trustee
22nd June, 2005
CONTENTS
CLAUSE PAGE
1. Interpretation............................................................. 2
2. Amendments................................................................. 3
3. Representations............................................................ 4
4. Consents................................................................... 5
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 22nd 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) CITIGROUP GLOBAL MARKETS LIMITED and THE GOVERNOR AND COMPANY OF THE BANK
OF SCOTLAND as joint mandated lead arrangers (together the ARRANGERS);
(6) CITIBANK, N.A. as original Tranche A lender (the ORIGINAL TRANCHE A
Lender) and THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as original
Tranche B lender (the TRANCHE B LENDER and, together with the Original
Tranche A Lender, the ORIGINAL LENDERS);
(7) CREDIT SUISSE, HSH NORDBANK AG, LUXEMBOURG BRANCH and ABN AMRO as new
lenders (the NEW LENDERS, and, together with the Original Lenders, the
LENDERS);
(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 between the Borrower, the Guarantors, Citibank N.A as original
lender, Citigroup Global Markets Limited as mandated lead arranger, the
Facility Agent and the Security Trustee (the ORIGINAL PARTIES) as amended
by a first supplemental agreement dated 1st June, 2005 between the
Original Parties, the Tranche B Lender and The Governor and Company of the
Bank of Scotland as new joint mandated lead arranger (the CREDIT
AGREEMENT), pursuant to which the Original Tranche A Lender made the
Tranche A Loans available to the Borrower, and the 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 transfer certificates dated on or around the date of this
Agreement the Original Tranche A Lender transferred a proportion of its
interest in the Tranche A Loans to the New Lenders. It is a
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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.
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.
ARRANGERS 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 July, 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 LENDERS has the meaning ascribed thereto in the Preamble.
ORIGINAL LENDER has the meaning ascribed thereto in the Preamble.
ORIGINAL TRANCHE A LENDER has the meaning ascribed thereto in the
Preamble.
ORIGINAL PARTIES 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.
TRANCHE B LENDER has the meaning ascribed thereto in the Preamble.
(b) Capitalised terms defined in the Credit Agreement have, unless expressly
defined in this Agreement, the same meaning in this Agreement.
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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.
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) Clause 7.2 of the Credit Agreement shall be deleted in its entirety
and replaced with the following:
"7.2 PAYMENT OF INTEREST
(a) Except where it is provided to the contrary in this Agreement
and subject to Clause 7.2(b) below, the Borrower must pay
accrued interest on each Loan on the last Business Day of each
Term.
(b) Notwithstanding Clause 7.2(a) above, where a Term is of more
than three (3) months, the Borrower must pay accrued interest
on each Loan on the last Business Day of each three (3) month
period during that Term."
(b) Clause 12.2 of the Credit Agreement shall be amended by the
insertion of the words "or trading on spot" at the end of the last
sentence of that Clause following the words "whilst the relevant
Vessel is under charter."
(c) Clause 16.1(a)(i) of the Credit Agreement shall be deleted and
replaced with the following:
"(i) its audited, consolidated, financial statements for the Group,
including Xxxxxxxx, for each of its financial years ending
after the date hereof; and"
(d) Clause 18.8(e) of the Credit Agreement shall be deleted in its
entirety and replaced with the following:
"(e) Following the Trigger Date the Borrower, Xxxxxxxx and Xxxxxxxx
Management (but not the Owners) shall be permitted to incur
Financial Indebtedness provided that:
(i) no Event of Default has occurred and is continuing; and
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(ii) incurring such Financial Indebtedness would not cause the
Group to be in breach of any of the covenants set out in
Clause 17."
(e) Clause 18.31 of the Credit Agreement shall be amended by the
insertion of a new clause 18.31(d) as follows:
"(d) In the event that the Borrower exercises its option pursuant
to Clause 5(a) to defer payment of the first and second
Tranche A Repayment Instalments then, notwithstanding any
provisions to the contrary in this Agreement, the Borrower
shall not be permitted to pay dividends or make any other
distribution (whether by loan or otherwise) to its
shareholders until the Charter Shortfall Payment has been
received in full and applied by the Facility Agent pursuant to
Clause 6.3(d) or such deferred payment shall otherwise be paid
in full."
(f) Clause 28.1 of the Credit Agreement shall be deleted in its entirety
and replaced with the following:
"28. Each of the Obligors and the Finance Parties agrees and
acknowledges that in the event that the Tranche B Loans are
not syndicated within forty five (45) days of the drawdown of
Vessel Loan 1, the Facility Agent may (acting on the unanimous
instructions of the Lenders) give notice to the Borrower of
the Finance Parties intention to combine the Tranche A Loans
and Tranche B Loans into a single tranche (the COMBINATION
NOTICE)."
(g) Clause 29.2 of the Credit Agreement shall be amended by the
insertion of a new Clause 29.2(a)(viii) as follows and the existing
Clause 29.2(a)(viii) shall be renumbered accordingly:
"(viii) the Repayment Schedule; or"
(h) 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.
(i) 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 CONSENT TO TRANSFER
In accordance with Clause 30.2(c) of the Credit Agreement, the Borrower
hereby consents to the transfer by the Original Tranche A Lender to the
New Lenders of a proportion of the Original Tranche A Lender's rights and
obligations with respect to the Tranche A Loans and the Commitment to make
Tranche A 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.
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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.
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 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 and
the Guarantors to the Finance Parties under the Finance
Documents as amended by this Agreement.
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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 three (3) transfer certificates between the
Original Tranche A Lender and each of the New Lenders, in substantially
the same form as that set out in Schedule 5 to the Credit Agreement,
pursuant to which the Original Tranche A Lender transfers and agrees to
transfer a proportion of its interest in the Tranche A Loans to the New
Lenders.
2. A duly executed deed of accession executed by each of the New Lenders, in
substantially the same form as that set out in Schedule 2 to the
Subordination Deed, pursuant to which the New Lenders accede to and agrees
to be bound by the terms of 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. $35,000,000 -
The Governor and Company of
the Bank of Scotland - $49,210,500
Credit Suisse $71,622,750 -
HSH Nordbank AG, Luxembourg
branch $71,622,750 -
ABN Amro $35,000,000 -
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SCHEDULE 4
REVISED REPAYMENT SCHEDULE
TRANCHE A
INSTALMENT NUMBER DATE AMOUNT (UNITED STATES DOLLARS)
----------------- ------------------ ------------------------------
1 30 December, 2005 18,500,000
2 30 March, 2006 7,250,000
3 30 June, 2006 17,250,000
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
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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
Agreement 25,000,000
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
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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
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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 ARRANGERS
CITIGROUP GLOBAL MARKETS LIMITED
By: Authorised signatory
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: Authorised signatory
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THE LENDERS
CITIBANK, N.A.
By: Authorised signatory
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: Authorised signatory
CREDIT SUISSE
By: Attorney in fact
HSH NORDBANK AG, LUXEMBOURG BRANCH
By: Attorney in fact
ABN AMRO
By: Attorney in fact
THE FACILITY AGENT
CITIBANK INTERNATIONAL PLC Authorised signatory
By:
THE SECURITY TRUSTEE
CITICORP TRUSTEE COMPANY LIMITED
By: Authorised signatories
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