AMENDMENT NO. 4 TO TERM LOAN FACILITY
Exhibit 4.36
Execution Version
Dated 15 June 2016
$67,500,000
AMENDMENT NO. 4 TO TERM LOAN FACILITY
SBI PHOEBE SHIPPING COMPANY LIMITED
SBI PERSEUS SHIPPING COMPANY LIMITED
SBI ELECTRA SHIPPING COMPANY LIMITED
SBI FLAMENCO SHIPPING COMPANY LIMITED
as joint and several Borrowers
and
as Guarantor
and
CREDIT SUISSE AG
as Lender
Fourth SUPPLEMENTAL AGREEMENT
relating to
the financing of
Hull Nos. CX 0613 (tbn "SBI PHOEBE"), m.v. "SBI PERSEUS",
m.v. "SBI ELECTRA" and m.v. "SBI FLAMENCO"
Exhibit 4.36
Index
Clause Page
1 Definitions and Interpretation 1
2 Agreement of the Lender 3
3 Conditions Precedent 3
4 Representations 3
5 Amendments to Loan Agreement, the Guarantee and other Finance Documents 4
6 Costs and Expenses 7
7 Notices 7
8 Counterparts 7
9 Governing Law 7
10 Enforcement 7
Schedules
Schedule 1 Conditions Precedent 9
Schedule 2 Form of Xxxxxxxx Islands Mortgage Addendum 10
Schedule 3 Form of Liberian Mortgage Addendum 14
Execution
Execution Pages 18
58244841v6
Exhibit 4.36
THIS SECOND SUPPLEMENTAL AGREEMENT is made on 15 June 2017
PARTIES |
(1) | SBI PHOEBE SHIPPING COMPANY LIMITED, SBI PERSEUS SHIPPING COMPANY LIMITED, SBI ELECTRA SHIPPING COMPANY LIMITED and SBI FLAMENCO SHIPPING COMPANY LIMITED, each a corporation incorporated in the Republic of the Xxxxxxxx Islands whose registered office is at c/o Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Republic of the Xxxxxxxx Islands as joint and several borrowers (the "Borrowers") |
(2) | SCORPIO BULKERS INC., a corporation incorporated in the Republic of the Xxxxxxxx Islands whose registered office is at c/o Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Republic of the Xxxxxxxx Islands as guarantor (the "Guarantor") |
(3) | CREDIT SUISSE AG, a company incorporated in the canton of Zürich, Switzerland and acting through its office at Xx Xxxxx-Xxxxxx 0-0, XX Xxx XX-0000 Xxxxx, Xxxxxxxxxxx as lender (the "Lender") |
BACKGROUND
(A) | By the Original Loan Agreement, the Lender agreed to make available to the Borrowers a term loan facility of up to $67,500,000. |
(B) | By the Original Guarantee, the Guarantor agreed to guarantee in favour of the Lender all the obligations of the Borrowers under the Original Loan Agreement and the other Finance Documents to which each Borrower is a party. |
(C) | By the First Supplemental Agreement, the Lender agreed certain amendments to the Original Loan Agreement and the Original Guarantee in connection with certain financial covenants. |
(D) | By the Second Supplemental Agreement, the Lender agreed certain amendments to the account arrangements under the Original Loan Agreement as amended by the First Supplemental Agreement. |
(E) | By the Third Supplemental Agreement, the Lender agreed certain amendments to the financial covenants and the repayment provisions in the Original Loan Agreement and the Original Guarantee as each have been amended by the First Supplemental Agreement and the Second Supplemental Agreement. |
(F) | The Borrowers and the Guarantor have requested further changes to the financial covenants and repayment provisions of the Loan Agreement. |
(G) | This Agreement sets out the terms and conditions on which the Lender agrees, with effect on and from the Effective Date, at the request of the Borrowers and the Guarantor, to amend certain provisions of the Loan Agreement and to the consequential amendment of the Guarantee and the other Finance Documents in order to give effect to the requested changes to the financial covenants and the repayment provisions referred to in recital (F) above. |
OPERATIVE PROVISIONS
1 | Definitions and Interpretation |
1.1 | Definitions |
In this Agreement:
Exhibit 4.36
"Effective Date" means the date on which the Lender confirms to the Borrowers and the Guarantor in writing that the conditions precedent in Clause 3 (Conditions Precedent) are satisfied.
"First Supplemental Agreement" means the first supplemental agreement referred to in recital (C) dated 14 September 2015 made between (i) the Borrowers, (ii) the Guarantor and (iii) the Lender whereby the Original Loan Agreement and the Original Guarantee were amended and supplemented.
"Guarantee" means the Original Guarantee as amended and supplemented by the First Supplemental Agreement, the Second Supplemental Agreement and the Third Supplemental Agreement.
"Loan Agreement" means the Original Loan Agreement as amended and supplemented by the First Supplemental Agreement, the Second Supplemental Agreement and the Third Supplemental Agreement.
"Original Guarantee" means the guarantee referred to in recital (B) dated 30 July 2014 made between (i) the Guarantor and (ii) the Lender whereby the Guarantor agreed to guarantee the obligations of the Borrowers under the Original Loan Agreement and the other Finance Documents.
"Original Loan Agreement" means the loan agreement referred to in recital (A) dated 30 July 2014 made between (i) the Borrowers and (ii) the Lender whereby the Lender agreed to make available to the Borrowers a term loan of up to US$67,500,000.
"Party" means a party to this Agreement.
"Second Mortgage Addendum" means, in respect of each Ship which is the subject of a Mortgage, a second addendum to the Mortgage for that Ship substantially in the form set out in Schedule 2 (Form of Xxxxxxxx Islands Mortgage Addendum) in the case where the Approved Flag of the relevant Ship is the Xxxxxxxx Islands and Schedule 3 (Form of Liberian Mortgage Addendum) in the case where the Approved Flag of the relevant Ship is Liberia.
"Second Supplemental Agreement" means the second supplemental agreement referred to in recital (D) dated 23 October 2015 made between (i) the Borrowers, (ii) the Guarantor and (iii) the Lender whereby the Original Loan Agreement and the Original Guarantee as each have been amended and supplemented by the First Supplemental Agreement, were further amended and supplemented.
“Third Supplemental Agreement” means the third supplemental agreement referred to in recital (E) dated 5 April 2016 made between (i) the Borrowers, (ii) the Guarantor and (iii) the Lender, whereby the Original Loan Agreement and the Original Guarantee as each have been amended and supplemented by the First Supplemental Agreement and the Second Supplemental Agreement, were further amended and supplemented.
1.2 | Defined expressions |
Defined expressions in the Loan Agreement and the other Finance Documents shall have the same meanings when used in this Agreement unless the context otherwise requires or unless otherwise defined in this Agreement.
1.3 | Application of construction and interpretation provisions of Loan Agreement |
Clause 1.2 (construction of certain terms) to clause 1.5 (general interpretation) of the Loan Agreement apply to this Agreement as if they were expressly incorporated in it with any necessary modifications.
1.4 | Designation as a Finance Document |
The Borrowers and the Lender designate this Agreement as a Finance Document.
Exhibit 4.36
1.5 | Third party rights |
Unless provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this Agreement.
2 | Agreement of the Lender |
2.1 | Agreement of the Lender |
The Lender agrees, subject to and upon the terms and conditions of this Agreement:
(a) | to amend clause 1.1 (definitions), clause 2.1 (amount of facility) and clause 7 (repayment and prepayment) of the Loan Agreement and clause 12 (corporate and financial undertakings) of the Guarantee, as more particularly described in Clause 5 (Amendments to Loan Agreement, the Guarantee and other Finance Documents) of this Agreement; |
(b) | in respect of each Ship which is the subject of a Mortgage as at the date of this Agreement, to amend the Mortgage in respect of such Ship in accordance with the terms of its Second Mortgage Addendum; and |
(c) | to the consequential amendment of the Loan Agreement and the other Finance Documents in connection with the matters referred to in paragraph (a) above. |
2.2 | Effective Date |
The agreement of the Lender contained in Clause 2.1 (Agreement of the Lender) shall have effect on and from the Effective Date.
3 | Conditions Precedent |
The agreement of the Lender contained in Clause 2.1 (Agreement of the Lender) is subject to:
(a) | no Event of Default continuing on the date of this Agreement and the Effective Date or resulting from the occurrence of the Effective Date; |
(b) | the representations and warranties to be made by each Borrower and the Guarantor pursuant to Clause 4 (Representations) being true on the date of this Agreement and the Effective Date; and |
(c) | the Lender having received all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to the Lender on or before 15 June 2016 or such later date as the Lender may agree with the Borrowers. |
4 | Representations |
4.1 | Loan Agreement representations |
Each Borrower makes the representations and warranties set out in clause 9 (representations and warranties) of the Loan Agreement, as amended and supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then existing on the date of this Agreement and on the Effective Date.
4.2 | Finance Document representations |
Each Borrower and the Guarantor makes the representations and warranties set out in the Finance Documents (other than the Loan Agreement) to which it is a party, as amended and supplemented by this Agreement and updated with appropriate modifications to refer to this Agreement, by reference to the circumstances then existing on the date of this Agreement and on the Effective Date.
Exhibit 4.36
5 | Amendments to Loan Agreement, the Guarantee and other Finance Documents |
5.1 | Specific amendments to the Loan Agreement |
With effect on and from the Effective Date the Loan Agreement shall be, and shall be deemed by this Agreement to be amended as follows:
(a) | by deleting “of up to $16,350,000 each” in the first line of recital (A) and replacing it with “one of up to $12,000,000 and the other of up to $16,350,000,” |
(b) | by adding the following new definitions to clause 1.1 (definitions) of the Loan Agreement in the correct alphabetical places: |
"Fourth Supplement" means the fourth supplement to this Agreement dated ___15___ June 2016 and made between the parties to this Agreement and the Guarantor.
"Fourth Supplement Effective Date" shall have the meaning given to the expression "Effective Date" in the Fourth Supplement.
“Mortgage” means, in relation to a Ship, the first priority or, as the case may be, preferred ship mortgage on the Ship under the applicable Approved Flag together with any deed of covenant collated thereto (if applicable) in the Agreed Form as the same has been or may be amended and supplemented by a Mortgage Addendum and a Second Mortgage Addendum, as the case may be.
“Second Mortgage Addendum” means, in relation to Ship B, Ship C and Ship D, the second addendum to the Mortgage in respect of such Ship in the Agreed Form.
(c) | by including each Second Mortgage Addendum as a Finance Document; |
(d) | by deleting $16,350,000 in the first line of the definition of “Ship A Tranche” in clause 1.1 (definitions) of the Loan Agreement and replacing it with “$12,000,000”; |
(e) | by deleting “$16,350,000” in sub-paragraph (i) of paragraph (a) of clause 2.1 (Amount of the facility) of the Loan Agreement and replacing it with “$12,000,000 in respect of Ship A and $16,350,000 in respect of Ship B”; |
(f) | by adding a new clause 7.12 (Additional mandatory prepayment) to the Loan Agreement as follows: |
“7.12 | Additional mandatory prepayment. Without prejudice to the provisions of Clause 14 (Security Cover), the Borrowers shall make an additional prepayment of $2,460,277.04 on or prior to the Fourth Supplemental Effective Date which such prepayment the Lender shall apply pro rata against the Ship B Tranche, the Ship C Tranche and the Ship D Tranche and then applied against the remaining repayment instalments for the relevant Tranche specified in Clause 7.1 (Amount of repayment instalments) in inverse order of maturity commencing with the balloon instalment under each such Tranche”. |
(g) | by deleting clause 14.1 (Minimum required security cover) of the Loan Agreement and replacing it with the following new clause 14.1: |
“14.1 | Minimum required security cover. Clause 14.2 (Provision of additional security; prepayment) applies if the Lender notifies the Borrowers that: |
(a) | the aggregate of the Fair Market Value of each Ship subject to a Mortgage; plus |
Exhibit 4.36
(b) | the net realisable value of any additional security previously provided under this Clause 14 (Security cover), |
is below 115 per cent of the Loan.”
(h) | the definition of, and references throughout to, each Finance Document shall be construed as if the same referred to that Finance Document as amended and supplemented by this Agreement; and |
(i) | by construing references throughout to "this Agreement" and other like expressions as if the same referred to the Loan Agreement as amended and supplemented by this Agreement. |
5.2 | Specific amendments to the Guarantee |
With effect on and from the Effective Date, the Guarantee shall be, and shall be deemed by this Agreement to be amended as follows:
(a) | by deleting the definition of "Consolidated Tangible Net Worth" in Clause 1.2 of the Guarantee and replacing it with the following: : |
"“Consolidated Tangible Net Worth” means, on a consolidated basis, the total shareholders’ equity (including retained earnings) of the Guarantor, minus goodwill and as adjusted to exclude:
(a) | any incurred losses and/or write downs on assets sold or held for sale on or after 31 December 2013; |
(b) | any losses incurred on termination of shipbuilding contracts on or after 31 December 2013; and |
(c) | any impairment charges taken on assets on or after 31 December 2013."; |
(b) | by deleting clause 12.4 (Dividends) of the Guarantee and replacing it with the following new clause 12.4: |
"12.4
(a) | Guarantor's Dividends. The Guarantor shall not pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital at any time prior to 31 December 2018. |
(b) | Borrowers' Dividends. The Guarantor shall procure that no Borrower shall pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if an Event of Default has occurred or if an Event of Default will result from the payment of such dividend, distribution or form of redemption or return of share capital."; |
(c) | by deleting clause 12.8 (minimum interest coverage) of the Guarantee and replacing it with the following new clause 12.8: |
"12.8 | Minimum Interest Coverage. The Guarantor shall maintain a ratio of Consolidated EBITDA to Consolidated Net Interest Expense greater than: |
(a) | from 1 January 2018 up to (and including) 31 March 2018, 1.00 to 1.00 calculated for that Accounting Period on a trailing one quarter basis; |
(b) | from 1 April 2018 up to (and including) 30 June 2018, 1.00 to 1.00 calculated for that Accounting Period on a trailing two quarter basis; |
Exhibit 4.36
(c) | from 1 July 2018 up to (and including) 30 September 2018, 2.50 to 1.00 calculated for the Accounting Period on a trailing three quarter basis; and |
(d) | at all other times thereafter, 2.50 to 1.00 calculated for each Accounting Period on a trailing four quarter basis."; |
(d) | the definition of, and references throughout to, each Finance Document shall be construed as if the same referred to that Finance Document as amended and supplemented by this Agreement; and |
(e) | by construing references throughout to "this Agreement" and other like expressions as if the same referred to the Guarantee as amended and supplemented by this Agreement. |
5.3 | Amendments to Finance Documents |
With effect on and from the Effective Date each of the Finance Documents, other than the Loan Agreement, the Guarantee and the Mortgages in respect of Ship B, Ship C and Ship D shall be, and shall be deemed by this Agreement to be, amended as follows:
(a) | the definition of, and references throughout each of the Finance Documents to, the Loan Agreement, the Guarantee and any of the other Finance Documents shall be construed as if the same referred to the Loan Agreement, the Guarantee and those Finance Documents as amended and supplemented by this Agreement and where relevant each Mortgage Addendum and each Second Mortgage Addendum; and |
(b) | by construing references throughout each of the Finance Documents to "this Agreement", "this Deed" and other like expressions as if the same referred to such Finance Documents as amended and supplemented by this Agreement and where relevant each Mortgage Addendum and each Second Mortgage Addendum. |
5.4 | Finance Documents to remain in full force and effect |
The Finance Documents shall remain in full force and effect as amended and supplemented by:
(a) | the amendments to the Finance Documents contained or referred to in Clause 5.1 (Specific amendments to the Loan Agreement), Clause 5.2 (Specific amendments to the Guarantee) and Clause 5.3 (Amendments to Finance Documents). |
(b) | in the case of the Mortgages over Ship B, Ship C and Ship D, the Mortgage Addendum applicable to such Mortgage and the Second Mortgage Addendum applicable to such Mortgage; and |
(c) | such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement. |
6 | Costs and Expenses |
6.1 | Amendment fee |
The Borrowers shall pay to the Lender on or prior to the Effective Date, an amendment fee of US$50,000, in aggregate.
6.2 | Other fees, costs and expenses |
Clause 19.3 (costs of variations, amendments, enforcement etc.) of the Loan Agreement, as amended and supplemented by this Agreement, applies to this Agreement as if it were expressly incorporated in it with any necessary modifications.
Exhibit 4.36
7 | Notices |
Clause 27 (notices) of the Loan Agreement and, in the case of the address for notices to the Guarantor, clause 17.1 (notices to Guarantor) of the Guarantee, in each case, as amended and supplemented by this Agreement, apply to this Agreement as if they were expressly incorporated in it with any necessary modifications.
8 | Counterparts |
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
9 | Governing Law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
10 | Enforcement |
10.1 | Jurisdiction |
(a) | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute"). |
(b) | The Borrowers and the Guarantor each accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly neither the Borrowers nor the Guarantor will argue to the contrary. |
(c) | This Clause 10.1 (Jurisdiction) is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions. |
10.2 | Service of process |
(a) | Without prejudice to any other mode of service allowed under any relevant law, each Borrower and the Guarantor: |
(i) | irrevocably appoints Scorpio UK Ltd at their business office for the time being, presently at 00 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxx XX0X 0XX (attention: General Counsel) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and |
(ii) | agrees that failure by a process agent to notify the relevant Borrower or the Guarantor of the process will not invalidate the proceedings concerned. |
(b) | If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process, the Borrowers (on behalf of themselves and the Guarantor) must immediately (and in any event within 5 days of such event taking place) appoint another agent on terms acceptable to the Lender. Failing this, the Lender may appoint another agent for this purpose. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Exhibit 4.36
SCHEDULE 1
Conditions Precedent
1 | Borrowers and the Guarantor |
Documents of the kind specified in Schedule 2, Part A, paragraphs 2 to 4 (inclusive) of the Loan Agreement in relation to the entry by each Borrower and the Guarantor into this Agreement.
2 | Mortgage Addenda |
Documentary evidence that in respect of each Ship which is the subject of a Mortgage, a Second Mortgage Addendum has been duly registered against that Ship as a valid addendum in accordance with the laws of the jurisdiction of its Approved Flag.
3 | Mandatory prepayment |
Evidence that the Lender has received the prepayment contemplated in the new clause 7.12 (Additional mandatory prepayment) of the Loan Agreement in the amounts and as more particularly described in Clause 5.1(f) of this Agreement.
4 | Legal opinions |
A legal opinion of Xxxxxx Xxxxxx & Xxxxxxxx LLP, the legal advisers to the Lender, in respect of Xxxxxxxx Islands law and the laws of the Approved Flags of each Ship which is the subject of a Mortgage, substantially in the form distributed to the Lender before signing this Agreement.
5 | Other documents and evidence |
5.1 | A copy of any other consent, authorisation, approval or other document, opinion or assurance which the Lender considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by this Agreement or for the validity and enforceability of any Finance Document as amended and supplemented by this Agreement. |
5.2 | Evidence that the fee together with the costs and expenses then due from the Borrowers pursuant to Clause 6 (Costs and Expenses) of this Agreement against issued invoices have been paid or will be paid by the Effective Date. |
5.1 | Evidence that the agent referred to in Clause 10.2 (Service of process) of this Agreement has accepted its appointment as agent for service of process under this Agreement. |
Exhibit 4.36
SCHEDULE 2
Form of Xxxxxxxx Islands Mortgage Addendum
m.v. "[l]"
SECOND ADDENDUM TO FIRST PREFERRED XXXXXXXX ISLANDS MORTGAGE
THIS SECOND ADDENDUM made on the [l] day of [l] 2016
BETWEEN:
(1) | SBI [l] SHIPPING COMPANY LIMITED, a corporation incorporated in the Xxxxxxxx Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960 (the "Owner", which expression shall include its successors and permitted assigns); and |
(2) | CREDIT SUISSE AG, a company incorporated in the canton of Zürich, Switzerland and acting through its office at Xx Xxxxx-Xxxxxx 0-0, XX Xxx XX-0000 Xxxxx, Xxxxxxxxxxx (the "Lender", which expression includes its successors and assigns) |
IS SUPPLEMENTAL to a first preferred Xxxxxxxx Islands ship mortgage dated [l] over m.v. "[l]" having Official No. [l] (the "Ship"), executed by the Owner in favour of the Lender duly recorded in the Office of the Maritime Administrator of the Republic of the Xxxxxxxx Islands on [l] at [l] A.M., [l] at the central office of the Maritime Administrator in New York, in Book [l] at Page [l] as amended by a first mortgage addendum dated [l] executed by the Owner in favour of the Lender duly recorded in the Office of the Maritime Administrator of the Republic of the Xxxxxxxx islands on [l]at [l] A.M., [l]. at the central office of the Maritime Administrator in New York, in Book [l] at Page [l](the "Mortgage").
WHEREAS:
(A) | By a loan agreement dated 30 July 2014 (the "Original Loan Agreement") and made between (i) [the Owner] [SBI Phoebe Shipping Company Limited, SBI Perseus Shipping Company Limited, SBI Electra Shipping Company Limited and SBI Flamenco Shipping Company Limited] as joint and several borrowers (the "Borrowers"), and (ii) the Lender made available to the Borrowers a loan facility in an amount of up to $67,500,000. A copy of the form of the Original Loan Agreement is annexed hereto marked "A" and forms an integral part hereof and in respect of which the terms and conditions thereof shall be considered as part hereof and as part of the Mortgage. |
(B) | By a first supplemental agreement dated 14 September 2015, a second supplemental agreement dated 23 October 2015 and a third supplemental agreement dated 5 April 2016 (together, the "Supplemental Agreements" and together with the Original Loan Agreement, the "Loan Agreement"), the Original Loan Agreement was amended and supplemented pursuant to the terms and conditions set out therein. A copy of the form of each Supplemental Agreement is annexed hereto marked "B”, “C" and “D” respectively and each forms an integral part hereof and in respect of which the terms and conditions thereof shall be considered as part hereof and as part of the Mortgage. The principal amount outstanding under the Loan Agreement on the date hereof is US$[l] and there remains US$[l] in undrawn Commitment. |
(C) | Pursuant to the terms of a fourth supplemental agreement dated [l] 2016 (the "Third Supplemental Agreement") amending and supplementing the Loan Agreement and made between (i) the Borrowers, (ii) Scorpio Bulkers Inc. (the "Guarantor"), and (iii) the Lender, the Lender has agreed (inter alia) to amend the Loan Agreement in accordance with the terms and conditions therein contained. A copy of the form of the Fourth Supplemental Agreement is annexed hereto marked "E" and forms an integral part hereof and in respect of which the terms and conditions thereof shall be considered as part hereof and as part of the Mortgage. |
Exhibit 4.36
(D) | The agreement of the Lender contained in the Fourth Supplemental Agreement is conditional upon (inter alia) the execution of this Second Addendum. |
NOW THIS ADDENDUM WITNESSETH AND IT IS HEREBY AGREED
1. | In consideration of the premises and other good valuable consideration, the Owner grants, conveys, mortgages, pledges, confirms, assigns, transfers and sets over the whole of the Ship to the Lender as security for the obligations of the Owner under the Loan Agreement as amended and supplemented by the Fourth Supplemental Agreement. |
2. | Except where otherwise expressly provided or unless the context otherwise requires, words and expressions defined in the Loan Agreement, the Fourth Supplemental Agreement and the Mortgage shall bear the same meanings when used in this Second Addendum. |
3. | In consideration of the premises and pursuant to the Fourth Supplemental Agreement, with effect on and from the date hereof the following amendments shall be (and are hereby) made to the Mortgage: |
(a) | by construing references in the Mortgage to the "Loan Agreement" to mean, wherever the context so admits, references to the Original Loan Agreement as amended and supplemented by the Supplemental Agreements and the Fourth Supplemental Agreement; and |
(b) | by construing references in the Mortgage to "this Mortgage", "hereunder", "herein" and other such like terms to mean, wherever the context so admits, references to the Mortgage as amended and supplemented by this Second Addendum. |
4. | For the purpose of recording this Second Addendum as required by Chapter 3 of the Republic of the Xxxxxxxx Xxxxxxx Xxxxxxxx Xxx 0000 as amended, the total amount of the direct and contingent obligations secured by the Mortgage as amended by this Second Addendum is reduced to $[] together with interest, fees, commissions and performance of mortgage covenants. |
5. | Save to the extent that it is varied hereby the Mortgage shall continue in full force and effect as a continuing security for the amounts thereby secured, is hereby ratified and confirmed by the Owner, and the Mortgage and this Second Addendum shall be read and construed as one document. The parties expressly declare that nothing contained in this Second Addendum shall constitute a novation of the original obligations contained in the Mortgage. |
6. |
(a) | The Owner will cause this Second Addendum to be recorded against the Ship in accordance with the provisions of Xxxxxxxx Islands mortgage law and practice. |
Exhibit 4.36
(b) | The Owner hereby further undertakes at its own expense, to sign, perfect, do and (if required) register every such assurance, document, act or thing desirable for the purpose of perfecting the security constituted or intended to be constituted by the Mortgage and this Second Addendum. |
IN WITNESS WHEREOF the Owner and the Lender have caused this Second Addendum to be duly executed the date and year first before written.
SBI [l] SHIPPING COMPANY LIMITED
By: ________________________
Name:
Title: Attorney-in-Fact
CREDIT SUISSE AG
By: ________________________
Name:
Title: Attorney-in-Fact
Exhibit 4.36
ACKNOWLEDGEMENT OF SECOND ADDENDUM TO A FIRST PREFERRED MORTGAGE
DATED [l] 0000
XXXXX XX XXX XXXX )
COUNTY OF NEW YORK ) S.S.
On this [l] day of [l]2016 before me personally appeared [l] known to me who being by me duly sworn did depose and say that she/he resides at [l]; that she/he is an attorney in fact for SBI [l] SHIPPING COMPANY LIMITED, the Xxxxxxxx Islands corporation described in and which executed the foregoing instrument; and that she/he signed her/his name thereto pursuant to said corporation's power of attorney.
_______________________
Notary Public
STATE OF NEW YORK )
COUNTY OF NEW YORK ) S.S.
On this [l] day of [l] 2016 before me personally appeared [l] known to me who being by me duly sworn did depose and say that she/he resides at [l]; that she/he is an attorney in fact for CREDIT SUISSE AG, the Swiss company described in and which executed the foregoing instrument; and that she/he signed her/his name thereto pursuant to said company's power of attorney.
_______________________
Notary Public
Exhibit 4.36
SCHEDULE 3
Form of Liberian Mortgage Addendum
m.v. "SBI PERSEUS"
SECOND ADDENDUM TO FIRST PREFERRED LIBERIAN MORTGAGE
THIS SECOND ADDENDUM made on the[l]day of [l] 2016
BETWEEN:
(3) | SBI PERSEUS SHIPPING COMPANY LIMITED, a corporation incorporated in the Xxxxxxxx Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Xxxxxxxx Islands MH96960 and registered in the Republic of Liberia as a Foreign Maritime Entity (the "Owner", which expression shall include its successors and permitted assigns); and |
(4) | CREDIT SUISSE AG, a company incorporated in the canton of Zürich, Switzerland and acting through its office at Xx Xxxxx-Xxxxxx 0-0, XX Xxx XX-0000 Xxxxx, Xxxxxxxxxxx (the "Lender", which expression includes its successors and assigns) |
IS SUPPLEMENTAL to a first preferred Liberian ship mortgage dated 16 February 2016 over m.v. "SBI PERSEUS" having Official No. 17388 (the "Ship"), executed by the Owner in favour of the Lender duly recorded in the Office of the Deputy Commissioner of Maritime Affairs of the Republic of the Liberia on 16 February 2016 at 8.05 A.M. E.S.T, in Book 68 at Page 100 as amended by a first addendum dated [l] executed by the Owner in favour of the Lender duly recorded in the Office of the Deputy Commissioner of Maritime Affairs of the Republic of Liberia on [l] at [l]A.M, [l]. in Book [l]at Page [l] (the "Mortgage").
WHEREAS:
(A) | By a loan agreement dated 30 July 2014 (the "Original Loan Agreement") and made between (i) the Owner, SBI Phoebe Shipping Company Limited, SBI Electra Shipping Company Limited and SBI Flamenco Shipping Company Limited as joint and several borrowers (the "Borrowers"), and (ii) the Lender made available to the Borrowers a loan facility in an amount of up to $67,500,000. A copy of the form of the Original Loan Agreement is annexed hereto marked "A" and forms an integral part hereof and in respect of which the terms and conditions thereof shall be considered as part hereof and as part of the Mortgage. |
(B) | By a first supplemental agreement dated 14 September 2015, a second supplemental agreement dated 23 October 2015 and a third supplemental agreement dated 5 April 2016 (together, the "Supplemental Agreements" and together with the Original Loan Agreement, the "Loan Agreement"), the Original Loan Agreement was amended and supplemented pursuant to the terms and conditions set out therein. A copy of the form of each Supplemental Agreement is annexed hereto marked "B", "C" and “D” respectively and each forms an integral part hereof and in respect of which the terms and conditions thereof shall be considered as part hereof and as part of the Mortgage. The principal amount outstanding under the Loan Agreement on the date hereof is US$[l] and there remains US$16,350,000 in undrawn Commitment which such amount shall reduce to US$12,000,000 once the amendments documented in the Fourth Supplemental Agreement (defined below) become effective. |
(C) | Pursuant to the terms of a fourth supplemental agreement dated [l] 2016 (the "Fourth Supplemental Agreement") amending and supplementing the Loan Agreement and made between (i) the Borrowers, (ii) Scorpio Bulkers Inc. (the "Guarantor"), and (iii) the Lender, the Lender has agreed (inter alia) to amend the Loan Agreement in accordance with the terms and conditions therein contained. A copy of the form of the Fourth Supplemental Agreement is annexed hereto marked "E" and forms an integral part hereof and in respect of which the terms and conditions thereof shall be considered as part hereof and as part of the Mortgage. |
Exhibit 4.36
(D) | The agreement of the Lender contained in the Fourth Supplemental Agreement is conditional upon (inter alia) the execution of this Second Addendum. |
NOW THIS ADDENDUM WITNESSETH AND IT IS HEREBY AGREED
1. | In consideration of the premises and other good valuable consideration, the Owner grants, conveys, mortgages, pledges, confirms, assigns, transfers and sets over the whole of the Ship to the Lender as security for the obligations of the Owner under the Loan Agreement as amended and supplemented by the Fourth Supplemental Agreement. |
2. | Except where otherwise expressly provided or unless the context otherwise requires, words and expressions defined in the Loan Agreement, the Fourth Supplemental Agreement and the Mortgage shall bear the same meanings when used in this Second Addendum. |
3. | In consideration of the premises and pursuant to the Fourth Supplemental Agreement, with effect on and from the date hereof the following amendments shall be (and are hereby) made to the Mortgage: |
(a) | by construing references in the Mortgage to the "Loan Agreement" to mean, wherever the context so admits, references to the Original Loan Agreement as amended and supplemented by the Supplemental Agreements and the Fourth Supplemental Agreement; and |
(b) | by construing references in the Mortgage to "this Mortgage", "hereunder", "herein" and other such like terms to mean, wherever the context so admits, references to the Mortgage as amended and supplemented by this Second Addendum. |
4. | For the purpose of recording this Second Addendum as required by Chapter 3 of the Republic of the Xxxxxxxx Xxxxxxx Xxxxxxxx Xxx 0000 as amended, the total amount of the direct and contingent obligations secured by the Mortgage as amended by this Second Addendum is reduced to $[l] together with interest, fees, commissions and performance of mortgage covenants. |
5. | Save to the extent that it is varied hereby the Mortgage shall continue in full force and effect as a continuing security for the amounts thereby secured, is hereby ratified and confirmed by the Owner, and the Mortgage and this Second Addendum shall be read and construed as one document. The parties expressly declare that nothing contained in this Second Addendum shall constitute a novation of the original obligations contained in the Mortgage. |
6. |
(a) | The Owner will cause this Second Addendum to be recorded against the Ship in accordance with the provisions of Liberian mortgage law and practice. |
(b) | The Owner hereby further undertakes at its own expense, to sign, perfect, do and (if required) register every such assurance, document, act or thing desirable for the purpose of perfecting the security constituted or intended to be constituted by the Mortgage and this Second Addendum. |
IN WITNESS WHEREOF the Owner and the Lender have caused this Second Addendum to be duly executed the date and year first before written.
Exhibit 4.36
SBI PERSEUS SHIPPING COMPANY LIMITED
By: ________________________
Name:
Title: Attorney-in-Fact
CREDIT SUISSE AG
By: ________________________
Name:
Title: Attorney-in-Fact
Exhibit 4.36
ACKNOWLEDGEMENT OF SECOND ADDENDUM TO A FIRST PREFERRED MORTGAGE
DATED [l] 0000
XXXXX XX XXX XXXX )
COUNTY OF NEW YORK ) S.S.
On this [l] day of [l] 2016 before me personally appeared [l] known to me who being by me duly sworn did depose and say that she/he resides at [l]; that she/he is an attorney in fact for SBI PERSEUS SHIPPING COMPANY LIMITED, the Xxxxxxxx Islands corporation described in and which executed the foregoing instrument; and that she/he signed her/his name thereto pursuant to said corporation's power of attorney.
_______________________
Notary Public
STATE OF NEW YORK )
COUNTY OF NEW YORK ) S.S.
On this [l] day of [l] 2016 before me personally appeared [l] known to me who being by me duly sworn did depose and say that she/he resides at [l]; that she/he is an attorney in fact for CREDIT SUISSE AG, the Swiss company described in and which executed the foregoing instrument; and that she/he signed her/his name thereto pursuant to said company's power of attorney.
_______________________
Notary Public
Exhibit 4.36
Execution Pages
BORROWERS
SIGNED by /s/ Francesca Gianfranchi)
duly authorised Attorney-in-Fact)
for and on behalf of )
SBI PHOEBE SHIPPING COMPANY LIMITED )
in the presence of: )
Witness' signature: /s/ Xxxx Xxxxxxxx )
Witness' name: )
Witness' address: )
SIGNED by /s/ Francesca Gianfranchi)
duly authorised Attorney-in-Fact)
for and on behalf of )
SBI PERSEUS SHIPPING COMPANY LIMITED )
in the presence of: )
Witness' signature: /s/ Xxxx Xxxxxxxx )
Witness' name: )
Witness' address: )
SIGNED by /s/ Francesca Gianfranchi)
duly authorised Attorney-in-Fact )
for and on behalf of )
SBI ELECTRA SHIPPING COMPANY LIMITED )
in the presence of: )
Witness' signature: /s/ Xxxx Xxxxxxxx )
Witness' name: )
Witness' address: )
SIGNED by /s/ Francesca Gianfranchi)
duly authorised Attorney-in-Fact)
for and on behalf of )
SBI FLAMENCO SHIPPING COMPANY LIMITED )
in the presence of: )
Witness' signature: /s/ Xxxx Xxxxxxxx )
Witness' name: )
Witness' address: )
Exhibit 4.36
GUARANTOR
SIGNED by /s/ Xxxxx Xxxxxxx)
duly authorised Attorney-in-Fact)
for and on behalf of )
in the presence of: )
Witness' signature: /s/ Xxxx Xxxxxxxx )
Witness' name: )
Witness' address: )
LENDER
SIGNED by /s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx)
)
duly authorised )
for and on behalf of )
CREDIT SUISSE AG )
in the presence of: )
Witness' signature: /s/ Xxxx Xxxxxxxx)
Witness' name: )
Witness' address: )
