SIXTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.13
SIXTH
AMENDMENT TO CREDIT AGREEMENT
SIXTH
AMENDMENT TO CREDIT AGREEMENT (this “Sixth
Amendment”),
dated
as of February 7, 2007, among GENCO SHIPPING & TRADING LIMITED, a
corporation organized under the laws of the Republic of Xxxxxxxx Islands (the
“Borrower”),
the
lenders party hereto (each, a “Lender”
and,
collectively, the “Lenders”),
and
DnB NOR BANK ASA, NEW YORK BRANCH, as Administrative Agent (in such capacity,
the “Administrative
Agent”).
Unless otherwise indicated, all capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
W
I T
N E S S E T H
:
WHEREAS,
the Borrower, the Lenders from time to time party thereto, DnB NOR Bank ASA,
New
York Branch, Nordea Bank Finland plc, New York Branch and Citigroup Global
Markets Limited, as Joint Lead Arrangers (in such capacity, the “Lead
Arrangers”),
Nordea Bank Finland plc, New York Branch and Citigroup Global Markets Limited,
as Joint Book Runners (in such capacity, the “Joint
Book Runners”),
and
the Administrative Agent are parties to a Credit Agreement, dated as of July
15,
2005 (as amended, modified and/or supplemented to, but not including, the date
hereof, the “Credit
Agreement”);
and
WHEREAS,
subject to the terms and conditions of this Sixth Amendment, the parties hereto
wish to amend certain provisions of the Credit Agreement, in each case as herein
provided;
NOW,
THEREFORE, it is agreed:
I. Amendments
to Credit Agreement.
1. Section
1
of the Credit Agreement is hereby amended by inserting the following new Section
1.13:
“1.13 Incremental
Commitments.
(a) So long as the Incremental Commitment Request Requirements are
satisfied at the time of the delivery of the request, the Borrower shall have
the right, with the consent of, and in coordination with, the Administrative
Agent, but without requiring the consent of any of the Lenders (save as provided
in Section 1.13(b) below), to request at any time and from time to time after
the Closing Date and prior to the date as of the Total Commitments have been
terminated, that one or more Lenders (and/or one or more other banks or
financial institutions which are Eligible Transferees and are acceptable to
each
of the Administrative Agent and the Borrower and which will become Lenders
as
provided below) provide Incremental Commitments and, subject to the applicable
terms and conditions contained in this Agreement, make Loans pursuant thereto;
it being understood and agreed, however, that (i) no Lender shall be obligated
to provide an Incremental Commitment as a result of any such request by the
Borrower, and until such time, if any, as such Lender has agreed in its sole
discretion to provide an Incremental Commitment and executed and delivered
to
the
Administrative
Agent an Incremental Commitment Agreement in respect thereof as provided in
Section 1.13(b), such Lender shall not be obligated to fund any Loans in excess
of its Commitment as in effect prior to giving effect to such Incremental
Commitment provided pursuant to Section 1.13(b) below, (ii) any Lender
(including any Eligible Transferee who will become a Lender) may so provide
an
Incremental Commitment without the consent of any other Lender, (iii) each
provision of Incremental Commitments on a given date pursuant to Section 1.13(b)
below shall be in a minimum aggregate amount (for all Lenders (including any
Eligible Transferee who will become a Lender)) of at least $25,000,000 and
in
integral multiples of $25,000,000 in excess thereof, (iv) the aggregate amount
of all Incremental Commitments provided pursuant to Section 1.13(b) below,
shall
not exceed $100,000,000 and (v) all Loans made and Letters of Credit issued
pursuant to Incremental Commitments (and all interest, fees and other amounts
payable thereon) shall be Obligations under this Agreement and the other
applicable Credit Documents.
(b) At
the
time of the provision of Incremental Commitments pursuant to this Section 1.13,
the Borrower, the Administrative Agent and each such Lender or other Eligible
Transferee which agrees to provide an Incremental Commitment (each, an
“Incremental
Lender”)
shall
execute and deliver to the Administrative Agent an Incremental Commitment
Agreement, with the effectiveness of such Incremental Lender’s Incremental
Commitment to occur on the date (the “Incremental
Loan Commitment Date”)
set
forth in such Incremental Commitment Agreement, which date in any event shall
be
no earlier than the date on which (w) all fees required to be paid in connection
therewith at the time of such effectiveness shall have been paid (including,
without limitation, any agreed upon up-front or arrangement fees owing to the
Administrative Agent (or any affiliate thereof)), (x) all Incremental Loan
Commitment Requirements are satisfied, (y) all other conditions set forth in
this Section 1.13(b) shall have been satisfied, and (z) all other conditions
precedent that may be set forth in such Incremental Commitment Agreement shall
have been satisfied. The Administrative Agent shall promptly notify each Lender
as to the effectiveness of each Incremental Commitment Agreement, and at such
time, (i) the Commitments under, and for all purposes of, this Agreement shall
be increased by the aggregate amount of such Incremental Commitments, (ii)
Schedule
I
shall be
deemed modified to reflect the revised Commitments of the affected Lenders
and
(iii) to the extent requested by any Incremental Lender, Notes will be issued,
at the Borrower’s expense, to such Incremental Lender.
(c) At
the
time of any provision of Incremental Commitments pursuant to this Section 1.13,
the Borrower shall, in coordination with the Administrative Agent, repay
outstanding Loans of certain of the Lenders, and incur additional Loans from
certain other Lenders (including the Incremental Lenders), in each case to
the
extent necessary so that all of the Lenders participate in each outstanding
Borrowing of Loans pro
rata
on the
basis of their respective Commitments (after giving effect to any increase
in
the Commitments pursuant to this Section 1.13 above) and with the Borrower
being obligated to pay to the respective Lenders any costs of the type referred
to in Section 1.09 herein in connection with any such repayment and/or
Loans.”.
2
2. The
definition of “Commitment” appearing in Section 11.01 of the Credit Agreement is
hereby amended to read in its entirety as follows:
“Commitment”
shall
mean, for each Lender, the amount set forth opposite such Lender’s name in
Schedule I hereto as same may be (x) reduced from time to time pursuant to
Sections 3.02, 3.03, 4.02 and/or 10, (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.12 or 13.04 or
(z)
modified to reflect the revised Commitments of the affected Lenders as a result
of Incremental Commitments pursuant to Section 1.13.
3. Section
11.01 of the Credit Agreement is hereby amended by inserting in the appropriate
alphabetical order the following new definitions:
“Incremental
Commitment”
shall
mean, for any Lender, any commitment by such Lender pursuant to Section 1.13,
as
agreed to by such Lender in the respective Incremental Commitment Agreement;
it
being understood, however,
that on
each date upon which an Incremental Commitment of any Lender becomes effective,
such Incremental Commitment of such Lender shall be added to (and thereafter
become a part of) the Commitment of such Lender for all purposes of this
Agreement as contemplated by Section 1.13.
“Incremental
Commitment Agreement”
shall
mean an agreement substantially in the form of Exhibit
N
executed
pursuant to Section 1.13.
“Incremental
Commitment Request Requirements”
shall
mean, with respect to any request for an Incremental Commitment made pursuant
to
Section 1.13, the satisfaction of each of the following conditions on the date
of such request: (i) no Default or Event of Default then exists or would result
therefrom and (ii) all of the representations and warranties contained herein
and in the other Credit Documents are true and correct in all material respects
at such time (unless stated to relate to a specific earlier date, in which
case
such representations and warranties shall be true and correct in all material
respects as of such earlier date).
“Incremental
Lender”
shall
have the meaning assigned to that term in Section 1.13(b).
“Incremental
Loan Commitment Date”
shall
have the meaning provided in Section 1.13(b).
“Incremental
Loan Commitment Requirements”
shall
mean, with respect to any provision of an Incremental Commitment on a given
Incremental Loan Commitment Date (as defined in Section 1.13(b)), the
satisfaction of each of the following conditions on or prior to the effective
date of the respective Incremental Loan Commitment Agreement: (i) no Default
or
Event of Default then exists or would result therefrom, (ii) all of the
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects at such time (unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date), (iii) the delivery by the
3
Borrower
to the Administrative Agent of an officer’s certificate executed by an
Authorized Officer of the Borrower and certifying as to compliance with
preceding clauses (i) and (ii), (iv) the delivery by the Borrower to the
Administrative Agent of opinions, in form and substance reasonably satisfactory
to the Administrative Agent, from counsel to the Borrower and dated such date,
covering such of the matters set forth in the opinions of counsel delivered
to
the Administrative Agent on the Initial Borrowing Date pursuant to Section
5.03
as may be reasonably requested by the Administrative Agent, and such other
matters incident to the transactions contemplated thereby as the Administrative
Agent may reasonably request, (v) the delivery by the Borrower to the
Administrative Agent of such other officers’ certificates and evidence of good
standing as the Administrative Agent shall reasonably request and (vi) the
completion by the Borrower of such other actions as the Administrative Agent
may
reasonably request in connection with such Incremental Commitment.
“Sixth
Amendment”
means
the Sixth Amendment to this Credit Agreement, dated as of February 7, 2007.
“Sixth
Amendment Effective Date”
has
the
meaning provided in the Sixth Amendment.
4.
The
Credit Agreement is hereby amended by adding Exhibit
N
attached
hereto as an exhibit thereto.
II.
Miscellaneous
Provisions.
1. In
order
to induce the Lenders to enter into this Sixth Amendment, the Borrower hereby
represents and warrants that (i) no Default or Event of Default exists as of
the
Sixth Amendment Effective Date (as defined herein) both before and after giving
effect to this Sixth Amendment and (ii) all of the representations and
warranties contained in the Credit Agree-ment or the other Credit Documents
are
true and correct in all material respects on the Sixth Amendment Effective
Date
both before after giving effect to this Sixth Amendment, with the same effect
as
though such representations and warranties had been made on and as of the Sixth
Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all material
respects as of such specific date).
2. This
Sixth Amendment is limited as specified and shall not constitute a modification,
acceptance or waiver of any other provision of the Credit Agreement or any
other
Credit Document.
3. This
Sixth Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Borrower and the Administrative Agent.
4. THIS
SIXTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE
CONSTRUED IN
4
ACCORDANCE
WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
5. This
Sixth Amendment shall become effective on the date (the “Sixth Amendment
Effective Date”) when the Borrower, and Lenders constituting the Required
Lenders shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile or other
electronic transmission) the same to White & Case LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000; Attention: Yanni Guo (facsimile number:
000-000-0000 / email: xxxx@xxxxxxxxx.xxx).
6. From
and
after the Sixth Amendment Effective Date, all references in the Credit Agreement
and each of the other Credit Documents to the Credit Agreement shall be deemed
to be references to the Credit Agreement, as modified hereby.
*
*
*
5
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Sixth Amendment as of the date first above
written.
GENCO
SHIPPING &
TRADING LIMITED
By:
/s/
Xxxx
Xxxxxxxxxx
Name:
Xxxx
Xxxxxxxxxx
Title:
CFO
DnB
NOR BANK ASA, NEW
YORK BRANCH,
Individually
and as
Administrative
Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
IN
WITNESS WHEREOF, the parties hereto have caused their duly authorized officers
to execute and deliver this Sixth Amendment as of the date first above
written.
GENCO
SHIPPING &
TRADING LIMITED
By:__________________________________
Name:
Title:
DnB
NOR BANK ASA, NEW
YORK BRANCH,
Individually
and as
Administrative
Agent
By:
/s/
Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X.
Xxxxxxxxx
Title:
Senior Vice President
By:
/s/
Xxxxxxxx
Xxxxxxx
Name:
Xxxxxxxx
Xxxxxxx
Title:
Vice President
SIGNATURE
PAGE TO THE SIXTH AMENDMENT TO CREDIT AGREEMENT, DATED AS OF FEBRUARY 7,
2007,
AMONG GENCO SHIPPING & TRADING LIMITED, VARIOUS FINANCIAL INSTITUTIONS AND
DNB NOR BANK ASA, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
NAME
OF
INSTITUTION:
Nordea
Bank Norge ASA, Grand Cayman
Branch
By:
/s/
Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title:
Vice
President
By:
/s/
Xxxxxxx
Xxxxxx
Name:
Xxxxxxx
Xxxxxx
Title:
Vice President
SIGNATURE
PAGE TO THE SIXTH AMENDMENT TO CREDIT AGREEMENT, DATED AS OF FEBRUARY __,
2007,
AMONG GENCO SHIPPING & TRADING LIMITED, VARIOUS FINANCIAL INSTITUTIONS AND
DNB NOR BANK ASA, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
NAME
OF
INSTITUTION:
THE
ROYAL BANK OF SCOLAND plc
By:
/s/
Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Director, Ship Finance
Portfolio Management
SIGNATURE
PAGE TO THE SIXTH AMENDMENT TO CREDIT AGREEMENT, DATED AS OF FEBRUARY 7, 2007,
AMONG GENCO SHIPPING & TRADING LIMITED, VARIOUS FINANCIAL INSTITUTIONS AND
DNB NOR BANK ASA, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
NAME
OF
INSTITUTION:
SKANDINAVISKA
ENSKILDA XXXXXX X.X.
By:
/s/
X.
Xxxxx
Name:
X.
Xxxxx
Title:
Chief
Executive
/s/
X.
Xxxxxxx
Name:
X. Xxxxxxx Title:
Title:
Head of London
Branch
SIGNATURE
PAGE TO THE SIXTH AMENDMENT TO CREDIT AGREEMENT, DATED AS OF FEBRUARY 7,
2007,
AMONG GENCO SHIPPING & TRADING LIMITED, VARIOUS FINANCIAL INSTITUTIONS AND
DNB NOR BANK ASA, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
NAME
OF
INSTITUTION:
Citibank,
N.A.
By:
/s/
Xxxxxx
Xxxxxxx
Name:
Xxxxxx
Xxxxxxx
Title:
Vice
President
SIGNATURE
PAGE TO THE SIXTH AMENDMENT TO CREDIT AGREEMENT, DATED AS OF FEBRUARY 7,
2007,
AMONG GENCO SHIPPING & TRADING LIMITED, VARIOUS FINANCIAL INSTITUTIONS AND
DNB NOR BANK ASA, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
NAME
OF
INSTITUTION:
THE
GOVERNOR AND
COMPANY OF THE BANK OF SCOTLAND
By:
Xxxx
Xxxx
Name:
Xxxx Xxxx
Title:
Associate Director,
Marine Finance
SIGNATURE
PAGE TO THE SIXTH AMENDMENT TO CREDIT AGREEMENT, DATED AS OF FEBRUARY 7,
2007,
AMONG GENCO SHIPPING & TRADING LIMITED, VARIOUS FINANCIAL INSTITUTIONS AND
DNB NOR BANK ASA, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT
NAME
OF
INSTITUTION:
SUMITOMO
MITSUI
BANKING CORPORATION
By:
/s/
Xxxxxxxxx
Xxxxx
Name: Xxxxxxxxx
Xxxxx
Title:
Deputy
General Manager
EXHIBIT N
FORM
OF INCREMENTAL COMMITMENT AGREEMENT
This
INCREMENTAL COMMITMENT AGREEMENT (this “Agreement”) is dated as of [________]
[___], [___] and made between the banks and financial institutions listed on
Schedule I attached hereto (the “Incremental
Lenders”),
DnB
NOR BANK ASA, NEW YORK BRANCH (the “Administrative
Agent”)
and
Genco Shipping & Trading Limited (the “Borrower”).
1. Reference
is made to the Credit Agreement, dated as of July 15, 2005, among the Borrower,
the Lenders from time to time party thereto (the “Lenders”), and the
Administrative Agent (as amended, modified or supplemented from time to time,
the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used
herein shall have the respective meanings set forth in the Credit Agreement.
This Agreement shall consitute a Credit Document.
2. Each
Incremental Lender hereby severally agrees to provide the Incremental Commitment
set forth opposite its name on Schedule I attached hereto (for each such
Incremental Lender, its “Incremental Commitment”). Each Incremental
Commitment provided pursuant to this Agreement shall be subject to all of the
terms and conditions set forth in the Credit Agreement, including, without
limitation, Section 1.13 thereof.
3. The
parties hereto acknowledge and agree that upon the Agreement Effective Date
(as
defined below), the Incremental Commitment of each Incremental Lender shall
become, or in the case of an existing Lender under the Credit Agreement, shall
be added to (and thereafter become a part of), the Commitment of such
Incremental Lender. The parties hereto further agree that, with respect to
the
Incremental Commitment provided by each Incremental Lender pursuant to this
Agreement, such Incremental Lender shall receive from the Borrower such upfront
fees, unutilized commitment fees and/or other fees, if any, as may be separately
agreed to in writing with Borrower and
acknowledged by the Administrative Agent, all of which fees shall be due and
payable to such Incremental Lender on the terms and conditions set forth in
each
such separate agreement.
4. Furthermore,
each of the parties hereto hereby agrees to the terms and conditions set forth
on Schedule I hereto in respect of each Incremental Commitment provided pursuant
to this Agreement.
5. Each
Incremental Lender, to the extent not already a party to the Credit Agreement
as
a Lender thereunder, (i) confirms that it is an Eligible Transferee, (ii)
confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred
to
therein and such other documents and information as it has deemed appropriate
to
make its own credit analysis and decision to enter into this Agreement and
to
become a Lender under the Credit Agreement, (iii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement and the other Credit Documents, (iv) appoints
and authorizes the Administrative Agent to take such
Exhibit
N
Page 2
action
as
Administrative Agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, and (v) agrees that it will perform in accordance with
their
terms all of the obligations which by the terms of the Credit Agreement and
the
other Credit Documents are required to be performed by it as a
Lender.
6. Upon
the
date of (i) the execution of a counterpart of this Agreement by each Incremental
Lender, the Administrative Agent and the Borrower, (ii)
the
delivery to the Administrative Agent of a fully executed counterpart (including
by way of facsimile or other electronic transmission) hereof, (iii) the payment
of any fees then due and payable in connection herewith and (iv) the
satisfaction of any other conditions precedent set forth in Section 3 of
Schedule I hereto (such date, the “Agreement Effective Date”), each
Incremental Lender party hereto (i) shall be obligated to make the Loans
provided to be made by it as provided in this Agreement on the terms, and
subject to the condi-tions, set forth in the Credit Agreement and in this
Agreement and (ii) to the extent provided in this Agreement, shall have the
rights and obligations of a Lender thereunder and under the other applicable
Credit Documents.
7. The
Borrower acknowledges and agrees that it shall be liable for all Obligations
with respect to the Incremental Commitments provided hereby including, without
limita-tion, all Loans made and letters of credit issued pursuant thereto,
in
each case to the extent incurred by or issued for the account of, or guaranteed
by, the Borrower in accordance with the terms of the Credit
Documents.
8. Attached
hereto as Annex I is the officer’s certificate required to be delivered pursuant
to clause (iii) of the definition of “Incremental Loan Commitment Requirements”
appearing in Section 11.01 of the Credit Agreement certifying that the
conditions set forth in clauses (i) and (ii) of the definition of “Incremental
Loan Commitment Requirements” appearing in Section 11.01 of the Credit Agreement
have been satisfied.
9. Attached
hereto as Annex II is an opinion of [insert name or names of counsel, including
in-house counsel, who will be delivering opinion], counsel to the Borrower,
delivered as required pursuant to clause (iv) of the definition of “Incremental
Loan Commitment Requirements” appearing in Section 11.01 of the Credit
Agreement.
10. Attached
hereto as Annex III are true and correct copies of an officer’s certificate and
a good standing certificate of the Borrower required to be delivered pursuant
to
clause (v) of the definition of “Incremental Loan Commitment Requirements”
appearing in Section 11.01 of the Credit Agreement.
11. Upon
the
occurrence of the Agreement Effective Date, this Agreement may only be changed,
modified or varied by written instrument in accordance with the requirements
for
the modification of Credit Documents pursuant to Section 13.12 of the Credit
Agreement.
12. In
the
event of any conflict between the terms of this Agreement and those of the
Credit Agreement, the terms of the Credit Agreement shall control.
Exhibit
N
Page
3
13. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
*
*
*
[NAME
OF EACH
INCREMENTAL LENDER]
By:
__________________________
Name:
Title:
GENCO
SHIPPING &
TRADING LIMITED
By:
__________________________
Name:
Title:
DnB
NOR BANK ASA, NEW
YORK BRANCH, as Administrative Agent
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
SCHEDULE
I to EXHIBIT
N
TERMS
AND
CONDITIONS FOR INCREMENTAL COMMITMENT AGREEMENT
Dated
as
of _____________, ____
1.
BORROWER: GENCO
SHIPPING & TRADING LIMITED
2.
Incremental Commitment amounts (as of the Agreement Effective
Date):
|
Names
of Incremental Lenders
|
Amount
of Incremental Commitment
|
|
Total:1
|
|
3.
|
Other
Conditions Precedent:2
|
--------------------------------------------------
1
The aggregate amount of Incremental
Commitments must be at least $25,000,000 and in integral multiples of
$25,000,000 in excess thereof.
2
Insert any additional conditions precedent which may be required to be satisfied
prior to the Agreement Effective Date.
